These four major Aboriginal ethics or rules of behaviour non-interference, non-competitiveness, emotional restraint and sharing form the basis of daily relations within Aboriginal communities. But they work with four supplementary ethics: a concept of time, the expression of gratitude and approval, social protocols, and the teaching and rearing of children.
Aboriginal people have developed their own views and customs, or rules of behaviour, that are sometimes in conflict with those of the dominant society. For example, Aboriginal people have a very different concept of time from that of most other Canadians. It is referred to jokingly by Aboriginal people as "Indian time" or "Metis time. Today, the Native concept of time seems less a principle for living with nature and more of a manifestation of the need for harmonious interpersonal relationships.
For example, Tom, Dick and Harry may not make it to an 8 pm meeting because they have other responsibilities they are unable to leave because the time is not right. If they have a particular interest in the matter under discussion, the meeting will not be started until they arrive or until some message is received that they are not coming. To start without them might offend these esteemed members of the community In another, more social context, it might be rude and inconsiderate to start a dance at a wedding celebration without all the brothers and sisters of the bride and groom being able to take part in the first waltz.
To illustrate the relevance in the justice system of such cultural differences between Aboriginal and non-Aboriginal people, here is an example provided by a Micmac court worker in Nova Scotia:.
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Now time is usually divided in the Micmac world according to the positioning of the sun. And so I would turn around and I would give that statement to whoever was asking the questions. There are rules governing nearly every form of social behaviour. There is a rule dictating the proper way to commend another or express appreciation so as not to embarrass that particular person or demean the less-than-adequate accomplishment of another person.
There are rules governing proper etiquette or social protocol. There are rules about everything. Many, however, are specific to individual villages, clans, tribes and bands, a fact that can cause problems, given the ethic of non-interference. There is even a rule that defines the proper method of teaching Aboriginal young people or children.
Unlike European-Canadians, Aboriginal people teach their young people through example.
They allow the children to set their own goals and to learn that which the children feel is important or worthwhile. This method also respects the other rules of behaviour restricting interference and avoiding conflict. This method of teaching has often been misinterpreted or misunderstood by European-Canadians as a sign of poor parenting. However, it conveys information about the proper behaviour to the young person while it promotes self-reliance and responsibility. Brant surmises these ethics or rules of behaviour are reinforced within Aboriginal society by two other factors.
The first is "the projection of conflict," or the removal of blame to the outside, away from the immediate family or clan and towards some unseen and distant villain.
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This villain might take the shape of a witch or a monster and originally was used to discipline people by implied threat. Anger was considered not only unworthy and unwise, but dangerous as well. The second factor is the use of teasing, shaming and ridicule as a means of social control to discourage unwelcome behaviour and encourage the maintenance of harmony.
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On one hand, the use of such humiliation encouraged closeness and kept young people attached to the group, promoting group unity and survival. On the other hand, it drove the more reckless, bold or rebellious away from the group which, again, promoted stability within the group. It also emphasized the use of peer pressure to reinforce the rules of society upon the individual. Again, we stress that these theories of human behaviour are, as Brant himself warns, "far from complete. Brant recognizes this danger and presents them not as confirmed fact, but as theories to encourage debate and to "promote the further demystification of Native behaviour.
We present them to illustrate the vast differences in worldviews and in psychological behaviours between Aboriginal and non-Aboriginal peoples. We do, however, believe that Dr. This is an understanding that even many Aboriginal people lack. To a large extent, this same knowledge has determined the manner in which Aboriginal people have reacted to government injustices. In addition, the suppression of the rights of Aboriginal people to perform certain ceremonies and to adhere to their cultural imperatives has contributed to the social disruption in their communities.
This disruption has interfered with the ability of Aboriginal people to deal with the various pressures confronting them. It also has denied them culturally appropriate ways of maintaining harmony and limiting social disruption. Aboriginal cultures have, and continue to practise, ceremonies which encourage the controlled release of emotions in an appropriate manner. There are "grieving" ceremonies in which Aboriginal people are encouraged to deal with loss and separation. The "shaking tent" and "sweat lodge" ceremonies were used in this manner to "purify" or rid a person of latent hostilities and anger.
Sports, games and social functions allowed individuals to express anger, competitiveness or happiness in socially acceptable ways. There were "healing" circles in which the most deeply felt hurts were explored and dealt with within the context of traditional teachings.
There were elders who counselled and advised individuals and the tribe on how to resolve disputes and relieve tensions. What has been suppressed by laws and other religions in the past are these traditional mechanisms by which Aboriginal people have dealt with personal problems and pressures.
Many of these ceremonies were outlawed by governments until very recently. These ceremonies are still dismissed or debased by some people, even today. The disruption of Aboriginal societies, for the most part, has not interfered greatly with such rules of behaviour, but it has interfered greatly with the means by which Aboriginal people maintained personal balance and well-being. It is exactly this misunderstanding that is at the heart of systemic discrimination.
The justice system assumes much about the people who appear before it. The system assumes all persons will use the same reasoning when protecting their interests, when choosing their pleas, when conducting their defences, when confronting their accusers, when responding to detailed questions, and when showing respect and remorse to the court. It also assumes that punishment will affect all persons in the same manner.
When the justice system of the dominant society is applied to Aboriginal individuals and communities, many of its principles are at odds with the life philosophies which govern the behaviour of Aboriginal people. The value systems of most Aboriginal societies hold in high esteem the interrelated principles of individual autonomy and freedom, consistent with the preservation of relationships and community harmony, respect for other human and non-human beings, reluctance to criticize or interfere with others, and avoidance of confrontation and adversarial positions.
Methods and processes for solving disputes in Aboriginal societies have developed, of course, out of the basic value systems of the people. Belief in the inherent decency and wisdom of each individual person implies that any person will have useful opinions in any given situation, and should be listened to respectfully.
Aboriginal methods of dispute resolution, therefore, allow for any interested party to volunteer an opinion or make a comment. The "truth" of an incident is arrived at through hearing many descriptions of the event and of related, perhaps extenuating, circumstances. Impossible though it is to arrive at "the whole truth" in any circumstance, as Aboriginal people are aware, they believe that more of the truth can be determined when everyone is free to contribute information, as opposed to a system where only a chosen number are called to testify on subjects carefully chosen by adversarial counsel, where certain topics or information are inadmissible, and where questions can be asked in ways that dictate the answers.
Because the purpose of law in Aboriginal society is to restore harmony within the community, not only the accused has to be considered. Other people who have been or might be affected by the offence, particularly the victim, have to be considered in the matter of "sentencing" and disposition.
In the Ojibway concept of order, when a person is wronged it is understood that the wrongdoer must repair the order and harmony of the community by undoing the wrong. In most cases, the responsibility is placed on the wrongdoer to compensate the wronged persons.
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This concept of order makes the individual responsible for the maintenance of harmony within the society. Restitution to the victim or victims is, therefore, a primary consideration. The person wronged, bereaved or impoverished is entitled to some form of restitution. In the eyes of the community, sentencing the offender to incarceration or, worse still, placing him or her on probation, is tantamount to relieving the offender completely of any responsibility for a just restitution of the wrong.
It is viewed by Aboriginal people as a total vindication of the wrongdoer and an abdication of duty by the justice system. The accused also may have dependants who are involved in some way. Aboriginal people believe care has to be taken so that actions to control the offender do not bring hardship to others. The administration of justice in Aboriginal societies is relationship-centred and attempts to take into account the consequences of dispositions on individuals and the community, as well as on the offender. The differences between Aboriginal processes and the processes of the Canadian justice system are profound.
The Canadian justice system, like other justice systems in the European tradition, is adversarial.
When an accusation has been made against an individual, legal advisers representing plaintiff and defendant confront one another before an impartial judge or jury. Witnesses are called to testify for or against the accused; that is, to criticize or explain the actions of another. Guilt or innocence are decided on the basis of the argument that takes place between legal representatives. Retribution is demanded if the person accused is considered guilty.
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The concepts of adversarialism, accusation, confrontation, guilt, argument, criticism and retribution are alien to the Aboriginal value system, although perhaps not totally unknown to Aboriginal peoples. In the context of Aboriginal value systems, adversarialism and confrontation are antagonistic to the high value placed on harmony and the peaceful coexistence of all living beings, both human and non-human, with one another and with nature. Criticism of others is at odds with the principles of non-interference and individual autonomy and freedom.
The idea that guilt and innocence can be decided on the basis of argument is incompatible with a firmly rooted belief in honesty and integrity that does not permit lying. Retribution as an end in itself, and as an aim of society, becomes a meaningless notion in a value system which requires the reconciliation of an offender with the community and restitution for victims. The same contradictions between Aboriginal values and the dominant justice system result in a heavy burden being placed on Aboriginal accused, plaintiffs and witnesses who enter into the "white" justice system. Accusation and criticism giving adverse testimony , while required in the Canadian justice system, are precluded in an Aboriginal value system which makes every effort to avoid criticism and confrontation.
Plea-making is another area where the mechanics of the Canadian justice system are in conflict with Aboriginal cultural values.