17. Restorative, Transformative Justice
While there are similarities between some traditional Indigenous practices and restorative justice, it is not appropriate to use these terms interchangeably. Chartrand & Horn (2016) have noted “there are important features that make Indigenous legal traditions quite different from restorative justice processes, including how Indigenous legal traditions often use proactive/preventative strategies mediated through kinship networks” (p. 3). While restorative and Indigenous approaches to justice are unique, “there are opportunities for cross-cultural dialogue between advocates for restorative justice and Indigenous legal traditions, as well as opportunities to learn from each other’s experiences and journeys” (Chartrand & Horn, 2016, p. 3). This has been the case in some parts of Canada where Indigenous worldviews and justice practices have shaped restorative justice in significant ways (Elliott, 2011).
It is important for criminology students to understand important differences between restorative justice and Indigenous approaches to peacemaking without making overgeneralisations. There is a rich diversity of nations within the country now called Canada and each nation may have traditions and cultures related to peacemaking practices. The imposition of the Indian Act through colonisation has criminalised many aspects of Indigenous life and culture that criminalizes the actions and many aspects of life for Indigenous peoples.
As restorative justice approaches become more recognised, it is important to respect the various aspects of Indigenous culture that can lead to access to justice. Cunneen (2003) warns against the trivialisation of Indigenous cultures and laws in the name of universalising claims about restorative justice. Decolonisation requires decolonising our minds and our imagination—a rethinking of possibilities. Cunneen (2003) notes that restorative justice cannot run the risk of trampling over local traditional customs but requires reimagining justice outside the context of colonisation. Reimagining justice should consider existing Indigenous rights expressed in the Canadian Constitution of s.35 and further articulated in the recommendations of the Royal Commission on Aboriginal Peoples (1996) whereby “federal, provincial and territorial governments recognise the right of Aboriginal nations to establish and administer their own systems of justice pursuant to their inherent right of self-government, including the power to make laws, within the Aboriginal nation’s territory” (p. 224). If the outcome of restorative justice practices is the further integration of colonized peoples into the dominant legal system, restorative justice advocates cannot claim that it is socially and politically transformative or a radical alternative to existing justice practices (Cunneen, 2003, p. 44).
In support of the self-determination of Indigenous peoples, the Department of Justice initiated the Indigenous Justice Strategy in 1990. Programs funded through this initiative aim to support Indigenous, community-based justice programs that offer alternatives to mainstream justice processes. The objectives of these programs are:
- to assist Indigenous people in assuming greater responsibility for the administration of justice in their communities;
- to reflect and include Indigenous values within the justice system; and,
- to contribute to a decrease in the rates of victimisation, crime and incarceration among Indigenous people in communities with community-based justice programs funded by the IJP.
While some of these programs include restorative justice, the focus is primarily on alternatives to sentencing. For an example of restorative justice in the context of an Indigenous healing circle, see Reconciliation through Restorative Justice.
is the process of deconstructing colonial ideologies of the superiority and privilege of Western thought and approaches embedded in western societies such as Canada. Decolonization can also mean cultural, psychological, and economic freedom for Indigenous peoples.