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Law Of The Land

Law Of The Land

How Norway and Nunavut give indigenous people a say in the justice system
By Samia Madwar
May 04
2016
From the May 2016 Issue

It’s not like the efforts of Northerners to make their legal systems more representative are lacking. Right now, there are 47 community-based restorative justice programs aiming to, amongst other things, help rehabilitate people in Canada’s territories in traditional ways. And, nearly 15 years ago Nunavut’s former chief justice Beverly Browne introduced the idea of elders’ panels at court, sitting alongside judges and speaking to the accused to reinforce traditional values. But these programs are still considered secondary to the dominant, federally imposed legal system. All the while, Nunavut’s crime rates dwarf the rest of Canada’s, and the Baffin Correctional Centre is still overflowing.

For Qajaq Robinson, a graduate of the Akitsiraq Law School in Iqaluit, there’s a chance to revamp the justice system in Nunavut. “All the people within the criminal justice system, the legal system, frame how it works,” she says. If there were more Nunavummiut filling those roles, she says, the system would better reflect Inuit culture. And better help Inuit.

Robinson, who now works in administrative law for an Ottawa firm, was among 11 students who graduated from the school in 2005. The program seemed like an exciting first step towards a more representative justice system in the North. The school—a partnership between the Akitsiraq Law School Society, Nunavut Arctic College, and the University of Victoria—brought law professors to Iqaluit rather than forcing students to leave their homes for an education, and it incorporated Inuit law. Taught by an elder, the late Lucien Ikkalianuk, these additional courses helped Inuit students reconcile the laws of their ancestors with what they read in their textbooks. 

Their classes, says Robinson, covered “relationships with the land and with animals; intergenerational relationships, and laws with respect to those relationships; laws with respect to conflict resolution and conflict management. It was really ... no different than the wide spectrum you get in your standard law curriculum.”

Despite its success, Akitsiraq—which means “to strike out disharmony and wrongdoing and to render justice” in Inuktitut—was a one-time opportunity. Plans for a second iteration beginning in 2011 were abandoned when the Government of Nunavut rejected its funding. Now, there’s renewed hope. This past spring, Paul Quassa, Nunavut’s minister responsible for Nunavut Arctic College, announced the territorial government would aim to reinstate the program starting in 2017. With a broad enough up-take, years from now the legal system could bring traditional customs to the forefront. In this, a Norwegian initiative could light the way for our next step.

 “I think there’s frustration for some of the Sámi people."

The Sámi region, Sápmi, extends across Norway, Sweden, Finland, and northeastern Russia, but with the highest population of indigenous Sámi, Norway is also the only country to have adopted the Indigenous and Tribal Peoples Convention, or ILO-169. The convention dictates that the land and natural resources are central to aboriginal culture, and that aboriginal peoples have the right to exercise control over them.

This gave way to the Sis-Finnmárkku diggegoddi, a Sámi-language courthouse that opened its doors in Tana, Norway in 2004.

The courthouse draws on traditional customs to make decisions over issues such as fishing rights or reindeer husbandry. But often, says Hans Arne Nysæter, one of the court’s judges, their decisions are appealed at a higher court, where Sámi custom is dismissed. “I think there’s frustration for some of the Sámi people,” he says.

Despite its shortcomings, the idea of a courthouse that specializes in aboriginal law has its merits, says John McLaren, a professor emeritus at the University of Victoria. Fifteen years ago, he taught a course in torts—laws that deal with accidents and compensation—at Akitsiraq. 

For too long, he says, aboriginal law has been considered an afterthought. “I think there needs to be experimentation with institutions like the Sámi court,” he says, “which proceed from the understanding that in these cases, it is [aboriginal] law and custom which applies.”