First Nations court in Kamloops deserves exploration and caution

Aboriginal Futures, Blog, Commentary, Joseph Quesnel

In 2013, Kamloops will become one  of the few B.C. settings with a dedicated First Nations court.

The court will feature elders and be modelled after restorative justice.

The Kamloops court is modelled after a New Westminster First Nations courtroom, which has been in operation since 2006. That courts sits monthly and hears bail hearings, sentencings and child-protection cases involving aboriginal offenders or parties.

The announcement has generated controversy from different quarters.

A point to consider is the fact that the United States has considerable experience with a vast network of tribal courts. While they do try to emphasize indigenous dispute resolution systems, the courts do include important Anglo-American conventions such as the right of appeal and an independent judiciary. Key strengths of the US tribal court is their closeness to the community and their legitimacy in the eyes of the community.

Some local commentators are concerned about who the judges will be, but arguably what is more important is how these courts perform. The courts must be truly seen as legitimate and independent. They must not become a haven for leniency.

The quoted piece by Justice Sandra Day O’Connor mentions how in the U.S. tribal courts there is tendency for some of the courts to come under complete control of the tribal council, thereby undermining their independence. In the Canadian example, First Nations courts must always be separate from chief and council administrations. Aboriginal offenders going before them must be assured of truly indepedent hearings and sentencing.

First Nations courts in Canada have been set up to deal with the high aboriginal incarceration rate. But, as mentioned before, separate policies for aboriginals is not always the answer. First Nations courts hold potential, but they must be continually evaluated. If they cease to perform properly, they should be reformed or re-considered.