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DOI: 10.5553/TIJRJ.000146

The International Journal of Restorative JusticeAccess_open

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Indigenous justice and restorative justice: exploring perceptions of convergence and divergence in British Columbia and Saskatchewan

Keywords Indigenous justice, restorative justice, convergence, divergence
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Muhammad Asadullah, Alana Abramson, Xilonen Hanson Pastran e.a. , 'Indigenous justice and restorative justice: exploring perceptions of convergence and divergence in British Columbia and Saskatchewan', (2023) The International Journal of Restorative Justice 235-256

    There is a plethora of literature conflating the terms Indigenous justice and restorative justice. This collaborative action research project examined the relationship between Indigenous justice and restorative justice in British Columbia (BC) and Saskatchewan (SK), Canada. This qualitative study employed a decolonising research method. As a result, the research was overseen by a community advisory committee, composed of justice stakeholders and knowledge keepers in BC and SK. Data were collected through 26 key-informant interviews (seventeen from BC and nine from SK) and 33 focus group discussions in eight communities in BC and SK. Our findings included the definitions of restorative justice and Indigenous justice and points of convergence and divergence. This study unearthed a wide range of distinctions between Indigenous justice and restorative justice. According to some participants, ‘there’s absolutely no similarities’ between restorative justice and Indigenous justice, whereas to others restorative justice and Indigenous justice are like the ‘difference between chocolate and vanilla ice cream’. This study demonstrates the importance of dialogue between justice stakeholders and Indigenous Elders, knowledge keepers and communities to reveal the unique and important distinctions between Indigenous justice and restorative justice. This study ends with a discussion on limitations and areas for future research.

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    • 1 Introduction

      The concept of justice is complex and therefore understood, experienced and operationalised differently by individuals, communities, regions and states. Various factors, such as race, gender, culture, faith, ethnicity, worldview and personal and professional experience contribute to this diverse conceptualisation of the notion of justice; as such, the meaning of justice can vary from the perspective of victims of crime to alleged offenders, defence lawyers and community members. In both normative terms and in relation to crime, justice can mean ‘an eye for an eye, a tooth for a tooth’, ‘being treated fairly’ or ‘due process’ (Robinson, 2003: 329) to some, while connoting healing for others (Ross, 2014; Sawatsky, 2009; Yazzie, 2005). Other scholars focus on relationships as part of justice (Asadullah, 2022; Elliott, 2011; Llewellyn, 2011; Zehr, 1990). These varied concepts of justice have different origins. A state-based understanding of justice identifies justice as fairness and equality (Rawls, 1971; Sen, 2009), albeit with significant differences in what these concepts mean and how they might be ensured in society. Some Indigenous worldviews understand justice as a healing process (Ross, 2014; Sawatsky, 2009; Yazzie, 2005). The core theme for Indigenous justice is a focus on a relational worldview and holistic well-being, whereas state-based justice primarily concentrates on deterrence and procedural fairness (Monchalin, 2015). Restorative justice scholars are influenced by both state-based and Indigenous perspectives and extend the notion of justice to relationships at all levels – individual, community and institution (Llewellyn, 2011; Llewellyn & Morrison, 2018). Indigenous worldviews often primarily focus on the concept of healing and interconnectedness, whereas a state-centric understanding of justice focuses on fairness, rights and equality. Restorative justice as a relational theory of justice combines both healing and fairness and aspires towards just relationships (Monchalin, 2015; Yazzie, 2005).
      While there are similarities between many Indigenous worldviews of justice and restorative justice, it is not appropriate to use these terms interchangeably. Chartrand and 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’ (3). These authors suggest that 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: 3).
      This article begins with a literature review on Indigenous justice and restorative justice. A brief outline of restorative justice in the provinces of British Columbia (BC) and Saskatchewan (SK) and the procedures and research instruments of this study are described. The findings are categorised into four major themes: 1) definitional understanding of Indigenous justice and restorative justice; 2) convergence between Indigenous justice and restorative justice; 3) divergence between Indigenous justice and restorative justice; and 4) influences on restorative justice and Indigenous-led justice programming today.1x The authors in this study used the term Indigenous-led to describe restorative justice programmes in British Columbia and Saskatchewan that are predominantly led and facilitated by Indigenous peoples. This study ends with a discussion on limitations and areas for future research.

    • 2 Literature review

      Since its formal inception in 1974, restorative justice has emerged as a global phenomenon (Asadullah & Tomporowski, 2021). Currently, more than a hundred countries around the world use some form of restorative justice in responding to justice-related issues. Restorative justice in Canada, in the provinces of British Columbia and Saskatchewan in particular, has experienced significant growth and development since the 1970s. British Columbia is home to over 80 police and/or community-based restorative and/or Indigenous-led justice programmes (Asadullah & Morrison, 2021; Chatterjee & Elliott, 2003; PSSG, 2018). Saskatchewan has had alternative measures in place since 1985. Currently, there are approximately 80 agencies and organisations that provide some kind of restorative justice service in Saskatchewan. Of these groups, the Ministry of Justice provides funding to twenty community organisations, 33 mediators and four school restorative programmes as well as Circles of Support and Accountability. This statistic demonstrates that the implementation of restorative practices has grown considerably throughout Saskatchewan. Since 1997, Saskatchewan has seen approximately 100,000 criminal matters referred to restorative justice initiatives. This translates into an approximate number of 3,500 restorative justice referrals per year in the province (Asadullah & Tomporowski, 2021; Tomporowski, 2014).
      Over the years, legislation, policy, court decisions and government reports have highlighted the need to address the over-criminalisation of Indigenous people and provide restorative justice and Indigenous-led options for all Canadians. However, most victims and offenders experience the legal system, not restorative or Indigenous-led justice. Morrison, Asadullah and Pawlychka (2020) note that although Canada has made significant contributions to the restorative justice movement, these programmes and practices currently remain at the margins of the system compared with other countries. There is no question that interest in both Indigenous-led justice and restorative justice approaches has been on the rise for decades in Canada. However, the promise of such initiatives must be understood in the context of their challenges and limits. For example, while the growth of restorative justice programmes partially explains the decrease of youth on probation and in prison (Department of Justice, 2016), the number of Indigenous youth in custody continues to grow (Malakieh, 2019). In fact, despite Indigenous-led justice programmes being in place since the early 1990s, the crisis of over-representation of both Indigenous adults and youth as victims and accused/offenders at every stage of the justice system continues to get worse (Malakieh, 2019). Programmes alone are not enough to address the complexities of achieving justice within the colonial structure. Strang and Sherman (2015) also shared similar findings from Australia, where restorative justice was found to be harmful, in particular to Aboriginal peoples. According to them,

      The [restorative justice] experiment tells us that more victims were harmed, and offenders descended further and faster into crime, when restorative justice conferences were used with Aboriginals instead of prosecution in court (Strang & Sherman, 2015: 10).

      In both British Columbia and Saskatchewan, there are programmes operating as both Indigenous-led justice and restorative justice practices that offer services for victims, offenders and communities. In addition, in both British Columbia and Saskatchewan, examples of both Indigenous and restorative justice approaches can be found in some probation and parole practices and within Indigenous/Gladue courts. However, the continuing issues of over-representation stated previously reveal a potential disconnect between restorative, Indigenous and State justice that may benefit from further clarification and definition. Therefore, greater understanding as to how these types of justice differ may help inform restorative justice and Indigenous justice practitioners in evaluating and implementing programmes as well as scholars in analysing and exploring relevant theory and observations.

      2.1 Indigenous worldviews of justice

      Healing within oneself and in relationships with others and the natural world is a quintessentially important element in many Indigenous worldviews of justice. In a number of Indigenous languages, there is no equivalent to the word offender; instead, they may call the person ‘unhealed’ or ‘not healed’ (Shah, 2017). For example, in the Nisga language, the closest translation for offender is ooin, which literally means ‘not healed’ (Listening Project, 2017). Within the Navajo Nation, an offender is described as one who ‘acts as if he has no relatives’ (Yazzie & Zion, 1996: 162). The connotation of healing in justice is found in numerous Algonquin languages (Sawatsky, 2009). The essence of justice in the Indigenous worldview is about being a good relative (Henderson & McCaslin, 2005; Yazzie, 2005). From this rationale, an appropriate response to crime is to provide support for offender healing, which involves ‘bringing in the relatives’. Sawatsky (2009) defines healing justice as follows:

      a collective paradigm or imagination, usually drawing on an ancient wisdom tradition, that seeks to find ways of surviving together by structuring life so that means reflect the end of respect for life and by treating harms as opportunities to transform suffering and root causes of harms and, at the same time, to cultivate conditions of respectful living within the interrelated aspects of self, other, communities, social structures, environment and Spirit (39).

      Relationship with the Creator and Mother Earth is central to Indigenous creation stories. Elders pass down teachings and knowledge, which are blessed by the Creator (Ross, 2014). Spirituality, rituals and ceremonies are essential components of Indigenous healing justice (Asadullah, 2013; Lane, Bopp, Bopp & Morris, 2002). Justice is deeply rooted in maintaining a relationship not only with the Creator but also with Mother Earth and everything in nature, including rivers, animals and trees (McCaslin, 2005). Ross (2014) thoughtfully illustrates an interconnected and relational worldview:

      I encountered an Anishinaabe Grandmother hitchhiking in northwestern Ontario and I gave her a lift. Knowing that a lot of the old people gathered blueberries at that time of year to raise a little cash, I asked her how the blueberry crop was that summer. She immediately replied, ‘Oh, I was at the garbage dump last night, and there were sixteen bears out there!’ That’s all she said, apparently satisfied that it was a complete answer to my question. Fortunately, I had lived in the North long enough to understand her answer: bears thrive on blueberries, and a bumper crop means all the bears are back in the blueberry patches sporting huge purple grins. A failed crop, however, causes hungry bears to converge on the nearest dumps in search of food (5).

      The concept of interconnectedness is deeply ingrained in Indigenous worldviews of justice as healing (Pranis, 2007). Similarly, the concept of Ubuntu – an Nguni term, commonly translated as ‘I am what I am because of who we all are’, or ‘I am because you are’, or ‘my humanity is tied up with your humanity’ – also affirms the concept of interconnectedness (Kamwangamalu, 1999; Llewellyn & Howse, 1999).

      2.2 State-centric worldview of justice

      John Rawls, one of the most prominent justice theorists, played a central role in developing the notion of justice as fairness within a state-centric paradigm. His seminal book A theory of justice (1971) has received notable attention in contemporary circles. His justice as fairness assumes that

      the most reasonable principles of justice are those that would be the object of mutual agreement by persons under fair conditions. Justice as fairness thus also develops a theory of justice from the idea of a social contract (Rawls, 2001: xi).

      The ‘veil of ignorance’ is an important requirement in Rawls’ justice as fairness concept. This notion is well explained by Schroeder, Steel, Woodell and Bembenek (2003), who described how

      Rawls used the task of cutting a cake into equal portions as an example of the importance of this requirement. If the cutter knows that he will receive the piece of cake not taken by others, he will take special care to ensure that all pieces are, in fact, of equal size to avoid disadvantaging himself (380).

      Expanding the Rawlsian approach to justice, Sen (2009) offers a renewed understanding of justice. The Sanskrit words niti and nyaya constitute Sen’s idea of justice. Niti connotes ‘organizational propriety and behavioural correctness’, whereas nyaya explains ‘a comprehensive concept of realized justice’ (Sen, 2009: 20). Establishment of justice and the prevention of injustice are both important in Sen’s justice framework. Critiquing the Rawlsian theory of justice, Sen (2009) argues that the idea of justice

      must include ways of judging how to reduce injustice and advance justice, rather than aiming only at the characterisation of perfectly just societies – an exercise that is such a dominant feature of many theories of justice in political philosophy today (ix).

      In other words, the establishment of a just society is as important as thwarting injustice from happening. The contrasting worldviews of a state-centric and Indigenous justice resonate with Mary Clark’s (2005) dualistic Skinnerian and Prophetic typologies of justice. In summary, a state-centric worldview of justice understands the world as individualistic and competitive, whereas Indigenous worldviews see it more as a collectivist and collaborative effort. Fairness and accountability are overarching highlights in a state-centric understanding of justice, whereas healing, ceremonies and presence of Elders and relatives are the salient features in many Indigenous worldviews of justice. Additionally, both the Hobbesian and Rawlsian approaches to justice are procedural and distributive, with limited focus on individuals and relationships, especially in the context of the criminal justice system (Kruger, 2004).
      The debates surrounding the concept of justice prompted the present investigation. This study compiles a variety of perspectives from folks working or volunteering within community-based justice programmes and examines the similarities, differences and diversity in views of the terms restorative justice and Indigenous justice.

      2.3 Present study

      Comparative study and peer-reviewed scholarly work on the relationships between Indigenous justice and restorative justice are scant. This study addressed this gap by exploring how Indigenous justice and restorative justice are defined according to those who work directly within or alongside these programmes. The primary research questions are, How are Indigenous justice and restorative justice defined? What are the similarities and differences? The overall aim is to explore and better understand the relationship between Indigenous justice and restorative justice. The authors believe that greater understanding of this relationship has theoretical implications by creating further awareness of how these two forms of justice diverge and overlap, as well as providing greater context to specific theories and practices. Further understanding of this relationship may also impact practice and help to ensure that individuals and communities are receiving the most appropriate healing and successful type of justice for their situations and circumstances. In-depth qualitative interviews and focused group discussions were the tools employed in this study.

    • 3 Methodology

      3.1 Research procedures

      This project employed qualitative research methodology. The research process was conducted as follows:
      Step 1 – Principal Investigators formed an Advisory Committee. This committee was composed of key justice stakeholders, knowledge keepers and community members. These five people – three from British Columbia and two from Saskatchewan – assisted and guided the Principal Investigators with respect to site selection and reviewing the research instruments. The committee met with the Principal Investigators approximately once per month for the duration of the project.
      Step 2 – Principal Investigators, on the advice of the Advisory Committee, reached out to eight to ten potential participants in eight different communities (five in British Columbia and three in Saskatchewan). These communities included situations where Indigenous-led justice programmes and restorative justice programmes are either working well together, not working well together or not working together. Regardless, those involved had experience and expertise in restorative justice, Indigenous-led justice or both at the time of their participation. Principal Investigators provided an Invitation to Participate to potential participants.
      Step 3 – Principal Investigators connected potential participants (staff/volunteers of Indigenous-led and restorative justice programmes, as well as other justice stakeholders such as law enforcement, probation, Crown and victim’s services) with Research Assistants who emailed consent forms and arranged a time for a phone/video call interview, approximately one to two hours in length.
      Step 4 – Research Assistants reviewed the consent form with the participants, obtained verbal consent, conducted interviews and transcribed the data.
      Step 5 – Principal Investigators analysed the interview data and designed a series of virtual dialogue sessions (focused groups discussions) that aimed to promote dialogue between justice stakeholders that addressed their hopes, needs, interests and the research questions. The interviewees, often restorative justice and Indigenous-led justice programme coordinators, were invited to an agenda-building meeting to ensure that the focused group discussions were designed to respect cultural protocols and address the needs of the local restorative and Indigenous-led justice programmes.
      Step 6 – Thirty-three focused group discussions were conducted over the course of several weeks with approximately ten to fifteen participants from each community. For the most part, the same participants attended all the sessions.
      Step 7 – Data collected from interviews and focused group discussions were analysed by the Principal Investigators and Research Assistants.
      Step 8 – A final report generalising the findings and providing recommendations based on data from all eight communities was written by the Principal Investigators and Research Assistants and submitted to funders, participants and the Advisory Committee.

      3.2 Research instruments

      This study employed both in-depth qualitative interviews and focused group discussions for data collection.

      3.2.1 In-depth qualitative interviews

      In-depth, semi-structured interview is one of the most effective instruments for qualitative research. They were conducted to understand the perception, experience and feedback of the key stakeholders in a restorative justice process. In-person or face-to-face interviews help to dig into deeper issues of complex phenomena (Palys & Atchison, 2014). As in-person interviews could not be conducted owing to Covid-19 protocols and restrictions, virtual video call and phone interviews were undertaken. A total of 26 interviews – seventeen from British Columbia and nine from Saskatchewan – were conducted for this study.

      3.2.2 Focused group discussions

      Along with the key-informant interviews, this study also included 29 focused group discussions. Twenty-one focused group discussions were held in British Columbia, and twelve were held in Saskatchewan. Justice stakeholders and community-based justice practitioners from the selected eight sites – five in British Columbia and three in Saskatchewan – attended these discussions

    • 4 Findings

      This study unearthed four major themes from the Indigenous-led justice practices and restorative justice practices in British Columbia and Saskatchewan. These themes include 1) a definitional understanding of Indigenous justice and restorative justice; 2) convergence between Indigenous justice and restorative justice; 3) divergence between Indigenous justice and restorative justice; 4) influences on restorative justice and Indigenous-led justice programming today.

      4.1 Definitional understanding of Indigenous justice and restorative justice

      4.1.1 Indigenous justice

      Both interviewees and focused group discussion participants described and explained Indigenous-led justice in several ways. A number of participants discussed the homogeneity implicated in the term ‘Indigenous-led justice’. Participant BC-30 explained:

      There are similarities in regards to the belief systems that we carry and the connections to our land and our water and our place of origin. But that’s where the similarities really stop. And I think for too long, the governments of BC [(British Columbia)], as well as Canada, have taken that stance that every individual of Indigenous ancestry in this country are all the same. So there has to be a recognition of the very marked differences that exist between the Nations. And we are Nations.

      Similarly, BC-3 stated that ‘my understanding is that each Nation might want to do something very differently’. A few participants discussed how their programme services urban and rural Indigenous communities and peoples from diverse cultural contexts. Many participants discussed the process of their programme connecting individuals to cultural activities, which shift depending on the client. As put by BC-52, ‘it’s not just one set culture, so you’re dealing with a whole bunch. And then if you don’t know that one, you’ve just gotta learn.’ Additionally, SK-25 shared a unique perspective by drawing attention to the issues with using Indigenous justice as an umbrella term when referring to Indigenous practices and traditions. They explained that there are many different Indigenous cultures with unique traditions and justice practices. ‘It should be referred to as Nakota justice, Cree justice, et cetera’ (SK-25). SK-25 further explained that grouping these cultures’ traditions under the term Indigenous justice parallels colonial government policies that have sought to generalise Indigenous cultures.
      For BC-5, Indigenous-led justice means ‘the community taking it into their own hands instead of the police and the justice system’. Others describe Indigenous justice as ‘always planning with what looking forward looks like and what needs to get done’ (BC-3). Many of the participant descriptions about the development of Indigenous-led justice programmes in communities within British Columbia exemplified those definitions. Some participants described that when the needs of individuals and families emerge in Indigenous justice processes, the programmes work to connect and offer support to individuals in accessing diverse resources to meet their needs (BC-41; BC-53). Participants discussed community involvement and community focus when describing Indigenous justice. BC-53 explained, ‘It’s more like wellness in the community and working with all the history and the background, like understanding why the offences were committed.’ Similarly, SK-21 stated, ‘it’s more community oriented and focused on the value of reparation not just consequences and punishment’. SK-28 stated, ‘I think of IJ [(Indigenous justice)] as never being alone because there is always someone watching you and you will always be accountable for what you [have] done.’
      Several participants identified understanding the root causes of harm, both in why harms occurred and in their impact, as a central feature of Indigenous justice processes (BC-41; BC-52). Understanding was also identified as important in an Indigenous justice process and seeing the Indigenous justice participant as more than a harm-doer. As BC-41 put it,

      we also get to hear their story, too, understand that they are people, they have a story and we know things are going on in their life, but we’re going to help them get those tools so that they don’t have to do that again, right?

      BC-12 explained, ‘[B]eing able to educate while sanctioning, that’s what Indigenous processes are really about.’ SK-1 explained that in Indigenous justice ‘you are working with a person and their soul, and their being. You look at people not the crime … Justice in our culture is a life-long process’.


      For SK-5,

      I think that Indigenous-led justice approaches are very much about our culture, our customs, our ancestral justice laws that we already had hundreds of years ago that were really dismantled and destroyed by colonialism. I feel that the culture is strong and I feel it’s really been emphasised in the teachings that are coming along. We talk about mediation for example. It’s not just about people sitting down and having dialogue, although that’s a big component. It’s also about looking at things that are much deeper. To me, quite often when there is conflict, there is usually some type of trauma which means that we need to get to the root of the problem, you know, what is causing all these issues and I feel like with Indigenous-led approaches, I think it needs to be respected, honoured and accepted by society and Canada as a whole.

      Another element of Indigenous justice described by participants was the role of Elders in Indigenous justice processes. BC-41 explained the role of Elders thus:

      Not only is it support, but also just as knowledge keepers to be able to share, and a lot of the time, too, with Indigenous people with Elders, and probably more so with everybody, period, but there’s that respect that we have for our Elders and so if an Elder is present, that person is more likely not going to have an outburst.

      As put by BC-43, ‘you can’t always measure it to see the relation that an elder can have with a client’. SK-6 described the outcome of Indigenous justice processes as the following:

      Creating a balance in family, individual and community through reclaiming First Nations and balancing the rights and responsibilities of those harmed and the family and the community and through that process it restores harmony in relationships and also focussing on the behaviour of the individual who has created that harm.

      4.2 Restorative justice

      Both key interviewees and focused group discussion participants described, defined and explained restorative justice in various ways. As stated by BC-10, ‘restorative justice doesn’t have one main definition. It’s a broad definition, everyone kind of has their own, everyone puts in different things’. Several participants described restorative justice as a process/approach to dealing with harm. Within this process, participants identified restorative justice practices such as empowering those who have been harmed (victims) as well as a focus on dialogue, reparation and accountability. Participant BC-40 described restorative justice as follows:

      the ability to dig deep and listen and understand the story behind the story, whether it’s the victim or the offender. Oftentimes we find, the person that has caused harm, there’s some sort of trauma in their background that has caused them to behave in the way they did. It’s almost always the story. The beauty of restorative justice versus the criminal justice system, we have the opportunity to take a look at the reason why a person is acting that way and to try to help them develop better coping skills so that we don’t see them under these circumstances again.

      Participants described several views on the relationship between colonialism and restorative justice. Some participants described restorative justice as a ‘colonial system based on traditional methods’ (BC-13). Others stated, ‘[I]t’s not a colonised process, it came to be from Indigenous processes before’ (BC-10). SK-6 defined restorative justice as follows:

      the restoration of a person’s balance spiritually, physically, emotionally and mentally. And it emphasises repairing the harm that has been caused and it also allows for the offender and victim to meet while holding the offender responsible for their actions. It allows the victim to have a voice and lets them voice how they have been impacted by the harm caused by an offender.

      4.3 Convergence between Indigenous justice and restorative justice

      Research participants’ opinions varied widely in reference to the similarities between Indigenous justice and restorative justice. Some participants felt Indigenous justice and restorative justice are ‘pretty much the same’ (BC-41). Others felt that the similarities between Indigenous justice and restorative justice were that both are community-based, involve collaboration and strive to meet the needs of individuals involved in justice processes (SK-23; SK-24). SK-23 explained:

      They both address the harm done to the individual and the community, they both acknowledge that accountability is important. They’re both voluntary. They both recognise that prisons don’t work … they both kind of recognise that not only the victim centred thing, but community also needs to be involved when determining solutions.

      A few participants mentioned, with nuance, that both Indigenous justice and restorative justice have similar goals in their processes. BC-40 stated:

      We want to help that individual move forward in their life in a positive manner and we want to set them up for success. And for everyone, that looks a little bit different.

      Several participants described restorative justice as based on Indigenous justice. During a focused group discussion in Saskatchewan, one participant described some similarities between restorative justice and Indigenous-led justice in the following words:

      RJ [(restorative justice)] has been heavily influenced by Indigenous practices and values throughout Canada and the world but not all RJ practices are Indigenous based and not all Indigenous practices are necessarily restorative.

      Participant BC-30 said, ‘[W]hen you look at restorative justice practice across the board, restorative justice practice is based on Indigenous-led information and knowledge, for the most part.’ Similarly, BC-43 stated that ‘restorative justice fits so well with Indigenous communities because this is something they’ve done, like I’ve said, for hundreds, maybe thousands of years’. SK-26 shared that ‘RJ is an old idea with a new name. Our people used RJ thousands of years before contact with settlers’.
      On a similar sentiment, SK-5 declared that

      [t]he similarities are that I think they are rooted in Indigenous philosophy or thought and process. So, I think that is the similarity, that they were driven by the Maori people with the sentencing circles and how we have adapted sentencing circles as each community has been a part of a sentencing circles and they developed to the needs of a specific community. I think that is why restorative justice has been so easily accepted into our communities so easily because we can adapt it to our own processes and ways of thinking.

      Some felt that the similarities between restorative justice and Indigenous justice was akin to asking ‘what’s the difference between chocolate and vanilla ice cream? They’re both ice cream. It’s just a matter of flavour, so at the end, ice cream is ice cream’ (BC-30). Furthermore, a number of participants used the terms restorative justice and Indigenous justice interchangeably, demonstrating the continued conflation between the two terms. For example, when asked about their understanding of Indigenous-led practices in their community, BC-43, an Indigenous justice advocate, explicitly used the term ‘restorative justice’ when discussing their perspective.
      Several participants discussed Indigenous Courts when explaining either restorative justice or Indigenous-led justice. BC-10 explained:

      For the Indigenous Court, the client has to plead guilty, has to take responsibility for their actions. It uses a much more spiritual and cultural connected version to the justice system and the whole process. And provides a deeper wholistic and restorative approach to the court and for the sentencing.

      Many research participants believe that Indigenous justice and restorative justice are complementary. SK-5 felt that ‘[r]estorative justice is the bridge between legal adjudication to traditional and Indigenous processes’. Other participants distinguished restorative justice from Indigenous Courts. BC-43 expressed the following opinion:

      I think the Indigenous Courts are very important and it’s way different from the normal criminal justice system, in itself. And I would argue it’s far different from even the normal restorative justice because they have Elders involved, working on specific healing plans, healing plans that are linked into culture where they’d be making a dream catcher or making a drum or having one-to-one chats, a talk with an Elder and maybe share some of the cultures and teachings.

      4.4 Divergence between Indigenous justice and restorative justice

      Several participants felt that there were significant differences between Indigenous justice and restorative justice. BC-12 emphasised that Indigenous justice processes employ a ‘different methodology completely of gathering information to assist these [clients], and to be willing to go out and assist them’. Similarly, during a focused group discussion, a British Columbia participant stated, ‘RJ and IJ are not just a derivative of each other, they are different. IJ is a way of being’.
      During a focused group discussion in British Columbia, one participant described their Indigenous justice programme as distinct from the restorative justice programme in their community because their programme accepted different types of files, serving clients from several communities and individualising approaches to do a justice process, and had a longer community presence.
      A few participants felt that the differences were related to processes employed by different justice programmes. Some participants opined that the use of scripts in restorative justice processes is a difference from Indigenous justice processes (BC-12; BC-40). Other participants, such as BC-12, noted that Indigenous justice processes work so that ‘everybody can gather the information completely. Even if it takes a little bit of time. It’s not a time-driven process either. It’s not time-driven. It’s acknowledging spirit’. Several participants noted a difference between Indigenous justice and restorative justice being the identities of folks working in Indigenous justice and restorative justice.
      For BC-43,

      if there’s an Elder involved in an Indigenous community, you already have a grain of trust that you wouldn’t have in normal mainstream restorative justice because you’re dealing with typically non-Indigenous staff. That’s what I see is the significant difference.

      For SK-23, ‘[h]aving Indigenous representation, that would always be a different thing’. SK-2 explained it thus:

      I think you see in restorative justice in some areas, it’s more a faith-based approach and you have people motivated by faith as to why you do this and I think the idea of forgiveness is tossed around more in restorative justice than in Indigenous justice.

      SK-28 opined that ‘restorative justice is more like an academic thing whereas Indigenous justice talks about natural laws, Creator’s laws and laws from the land’.
      BC-12 felt that a significant difference between Indigenous justice and restorative justice was the latter’s emphasis on rehabilitation. BC-12 explained that

      rehabilitating is different for a mainstream white person, for example. A white guy, non-Native guy, gets in trouble in an assault – say he was fighting with the Native guy. So, he gets ‘rehabilitated’ by not fighting anymore because his sanctions were he’s not allowed to fight anymore, so he stops fighting. He understands a little bit maybe about what led up to alcoholism or drugs or something like that. They can identify that. And they are used to being in a classroom that they believe is for them. Learning how to conduct themselves as a Canadian individual. Well, privilege is not what Native people have. We don’t have that on our side as we’re trying to gather this knowledge. And in fact, we were prohibited from gathering this knowledge.

      Not all participants felt that Indigenous justice and restorative justice were significantly different. Participants such as BC-41 felt that ‘the difference is only the ceremony part’. The majority of the key informants and focused group discussion participants in British Columbia and Saskatchewan explained Indigenous justice and restorative justice as ‘complementary’ and ‘interrelated’.

      4.5 Influences on restorative justice and Indigenous-led justice programming today

      While both restorative justice and Indigenous justice are largely community based, and have come from community initiatives, participants revealed marked differences in how they believe current forms of restorative justice and Indigenous-led justice have been shaped. Mainly, restorative justice was often remarked to be supported and influenced by the justice system or justice professionals, such as by Crown Counsel or through the Youth Criminal Justice Act, while Indigenous justice was said to grow from the ground up with large community input. Criminal justice community organisations and non-profits were also more likely to be cited in reference to restorative justice, while Indigenous leadership was more linked to Indigenous justice and Indigenous-led practices.
      SK-21 explained with regard to restorative justice in their organisation:

      Provincially and with the Ministry of Justice and stuff that is where most of our direction and programme delivery come from. It’s all on kind of what they want and we are accountable [to] funders as far as what our programme delivery actually looks like and what we are actually doing.

      SK-24 remarked that the growth of restorative justice is, in part, due to support by the government and growing support for utilising community-based alternative measures programmes:

      I would say that the Ministry of Justice, looking in that direction and also the Crown prosecutors were looking for an alternative and looking to put some things in place especially when it comes to youth.

      However, some participants view the roots of today’s restorative justice initiatives as Indigenous focused and influenced. SK-6 noted:

      I could be off here, but I mean in 1990, Canada entered into an experiment aimed at addressing disproportionately large numbers of Indigenous people who were incarcerated and appearing in court. So, they wanted to address that so the government started funding Aboriginal justice programmes so they could reduce the number of Indigenous offenders in the justice system and it was a recognition of appropriate ways of dealing with Indigenous offenders. There were lots of advocates and Indigenous communities that worked to create RJ initiatives that were meant to draw together all the parties that have been impacted with harm with the view that there is a need to restore harmony in the community.

      While the Canadian government was credited with supporting restorative justice initiatives, there is still more to be done with regard to Indigenous-led and created processes. SK-5 remarked:

      [T]he biggest influence in a sense is actually the Canadian justice system. By allowing sentencing circles and allowing community justice forums with the RCMP [(Royal Canadian Mounted Police)] who have made us look at what do we really want to do and that made us now … see those tools and then now we are trying to make those tools reflect some of our beliefs and world views in the sense that I do not think that they go very far off because lots of those processes were made by Indigenous people but I just think that they are now making them a process.

      For BC-5, Indigenous justice practices came directly from Indigenous leadership:

      It was our leadership who wanted this and said it was needed, they believed in it. So, it’s our chiefs of the local First Nations that we work with who started this … we were created to help take the load off of some of the First Nations who don’t have any of the resources in their community to deal with this, and y’know, they’re not funded or anything for it. So I would say it’s our chiefs.

      BC-11 shared a similar view:

      I would say it’s the people that have been involved in justice around here, the Elders, in one case it was a Chief. Went to court, saw how many Aboriginal people were in there, felt like something needed to be done and I guess that’s how they got the Indigenous Justice Center to addressing those underlying. Community driven.

      And BC-13:

      I think the influence definitely comes from our Elders, and this is how a lot of our programmes continue to push because we still engage them with steering committees and getting feedback and they’re quite involved in our First Nations court.

      It is interesting to note the differences in location for these participants. While individuals in Saskatchewan often mentioned government support and Department of Justice funding initiatives for community-driven and created programming, those in British Columbia often spoke to Indigenous leaders and community support for programme creation and implementation. This may be indicative of province-specific processes for restorative justice and Indigenous justice initiatives and programmes.

    • 5 Discussion and analysis: Indigenous justice and restorative justice debate

      This section debates Indigenous justice and restorative justice in detail. The past fifty years included the expansion and promotion of restorative justice globally. The expansion of the restorative justice industry was accompanied by a great deal of scholarship. A prominent claim in scholarship about restorative justice is that it is ‘derived’ or is the ‘same’ as Indigenous justice processes. At the same time as this claim and story about restorative justice is reproduced, it is also contested. Maori (Ngati Porou) criminologist Juan Tauri refutes the claim that restorative justice practices, such as family group conferences, were derived or ‘grew from’ Maori justice practices (Moyle & Tauri, 2016). Scholars such as McGuire (2020) and Sayers (2020) caution about oversimplified and romanticised assumptions about restorative and Indigenous justice. Sayers (2020) notes:

      When institutions and texts discuss Indigenous justice, there is an underlying assumption that Indigenous justice is ‘to restore the peace and equilibrium within the community, and to reconcile the accused with his or her own conscience and with the individual or family who has been wronged’ (Aboriginal Justice Implementation Commission, 2001; emphasis added). In other words, there is an assumption that Indigenous justice is restorative justice or a justice to restore peace and equilibrium to a community, to reconcile any relationship between the individual accused of criminal offences and the victim(s) of said criminal offences (42).

      McGuire (2020) warns:

      The wholistic, romanticized version of co-opted indigeneity that is often exemplified within RJ may also perpetuate existing stereotypes disregarding the diversity in responses to wrongdoing that exist among Indigenous peoples (22).

      Research in New Zealand and Bangladesh on restorative justice demonstrates issues in the ability of restorative justice to consistently be culturally responsive and appropriate. For instance, Moyle & Tauri (2016), in commenting on previous work by Moyle (2014) on Family Group-Conferences (FGC) in New Zealand, note:

      The largely symbolic use of Maori culture has not translated into effective practice, with the majority of participants from Moyle’s current research with whanau participants in FGC describing the process as culturally inappropriate and disempowering. Participants align this critique with the way that forum related practice undermined and even at times excluded Maori cultural expertise. This shortcoming in practice is exemplified through the experiences of participant 21, a kaumatua (respected elder) who commented that ‘CYF [Child, Youth, Family – services] said I couldn’t attend the FGC because I wasn’t whanau (families). But the whanau wanted a tikanga process and I was the kaumatua. Then the next week CYFs ring and ask me to attend a different FGC … talk about “dial a kaumatua”!’ ([emphasis in original], 97).

      Asadullah’s (2021) study interviewed local justice stakeholders working for governmental, non-governmental and international non-governmental organisations (INGO) in Bangladesh. They asked participants for their thoughts about the introduction of restorative justice in Bangladesh and found

      that as RJ was introduced in Bangladesh, there was limited consultation with local Bangladeshi stakeholders and poor resource sharing of texts written in Bengali. These challenges threw the cultural relevancy of the RJ into question (Asadullah, 2021: 37).

      One participant from Asadullah’s (2021) study suggested that introducing restorative justice was like ‘reinventing the wheel in Bangladesh’ (42). The participant noted:

      Bangladesh has a long history of salish. Our ancestors practised this conflict resolution method for centuries. RJ is not relevant with our history. The reputation of Bangladesh’s salish is well-known. People from our neighbouring countries come and get training from our salish. I wish RJ advocates in Bangladesh would have invested resources on salish instead of introducing RJ. Frankly speaking, I don’t see much difference between RJ and NGO-led salish. If you ask any RJ coordinator in Bangladesh about their understating of RJ and salish, I am sure they will find it difficult to distinguish (Asadullah, 2021: 42-43).

      5.1 State co-optation of restorative justice and standardisation

      The co-optation of restorative justice by the state poses specific problems for Indigenous-led justice initiatives internationally. Tauri (2018) flags an important point:

      [T]he impact that RJ is having on Indigenous communities is very much a ‘grey area’ of research and practice. And yet despite the absence of firm, empirical evidence, RJ advocates continue to make claims about RJ programmes, like how the FGC and other conferencing formats are ‘capable of meeting the needs of Indigenous peoples’ because of some magical, mythical alignment between these programmes and our ‘ways of doing justice’ (354).

      In 2017, Harry Blagg published a study that investigated statistical outcomes from the ‘restorative “turn”’ in the 1994 Australian Young Offenders Act. The shift was ‘loosely based on the New Zealand model established under the 1989 Children, Young Persons and their Families Act’ (70). As part of the shift, diversionary schemes were created for young offenders, including family conferencing. Blagg (2017) notes that following these reforms, non-Indigenous children were significantly diverted from the Perth Children’s Court, but the over-representation of Indigenous youth, in fact, increased. Tauri’s (2009) study on restorative justice accreditation and training demonstrates issues with restorative justice standardisation:

      In 2006 the Restorative Justice Centre was established at AUT University in Auckland. The Centre derived significant financial, advisory and policy support from the Ministry of Justice. The intention was to develop formalised, ‘best practice based’ training and accreditation in restorative practice. What is evident thus far is that the close relationship between the Centre and the Ministry has resulted in the focus of course design being wedded to the Ministry-driven standardisation process. Maori practitioners have expressed concern directly to the author at the apparent lack of Maori input into the design of the accreditation process, and well they might be as the future of their programme funding may depend on them and their colleagues securing certification that does not recognise their processes of dealing with social harm (16).

      5.2 Potential pathways

      The future of Indigenous justice and restorative justice is complex and challenging. The dynamic of relationships between Indigenous justice and restorative justice can go into two different directions – confrontational and cooperative. The confrontational path may entail more divisions, polarisations and misunderstandings. The cooperative path may open the door for more creative approaches/practices to address unique justice needs for all stakeholders. In assessing these debates, Park (2016) observes:

      There is not a single, homogeneous form of restorative justice for Aboriginal peoples; and, there are ongoing debates relating to restorative justice. Some observers, for example, argue for the central importance and efficacy of culturally grounded restorative justice (e.g. Milward, 2011), while others see restorative justice as a new neoliberal appropriation of Aboriginal cultures that responsibilizes Aboriginal peoples and communities (427).

      Chartrand and Horn (2016) captured this well:

      The relationship between restorative justice and Indigenous legal traditions is more complex and nuanced than this report has indicated so far. While this report has strategically suggested a clear divide exists between ‘restorative justice’ and ‘Indigenous legal traditions’ as a way to emphasise that they need to be discussed and understood independently from each other, the truth is that these justice systems blend into each other (14).

      The authors echo the sentiment of Larry Chartrand and Kanatase Horn (2016) that the relationships between Indigenous justice and restorative justice will continuously evolve in cyclical and divergent ways. The cooperative approach between and among Indigenous justice stakeholders and restorative justice stakeholders will pave the way for a complementary, united and holistic vision of justice.
      Finally, this study finds that most of the research participants in British Columbia and Saskatchewan view Indigenous justice and restorative justice as complementary worldviews and mechanisms rather than conflicting. This finding contradicts the popular assumptions that distance between Indigenous justice and restorative justice is growing in Canada. Additionally, more research participants in Saskatchewan believe in this complementariness. British Columbia’s research participants are more sceptical about the idea of a ‘blended’ or ‘complementary’ relationship between Indigenous justice and restorative justice. To them, a full-fledged sovereign nation-specific justice system can solve justice-related problems. ‘Cree Nation needs to have their own Cree justice system, Squamish people should have their own Squamish justice system, Mi’kmaq people should have their own Mi’kmaq justice system’ (SK-25).

    • 6 Conclusion

      This study captured key debates around Indigenous, state-centric and restorative worldviews of justice. Three threads in the tapestry of justice – justice as healing, justice as fairness and justice as relational – are discussed in this article. The findings are significant for several reasons. First, the study added more clarity and depth to the discussion of Indigenous justice and restorative justice. The methodological approach employed was empowering to the communities and will, hopefully, have long-term, positive effects in enhancing justice services. Along with the significant findings regarding Indigenous justice and restorative justice, the study also had a number of limitations. Firstly, it intentionally only included justice stakeholders as well as restorative justice and Indigenous-led justice advocates and practitioners as interviewees. Those who identify as victims or offenders were not included in this study. Future research can include research participants from all groups, including victims and offenders. Second, this study only explored what was happening with respect to Indigenous-led justice and restorative justice in two Canadian provinces. Future research needs to incorporate practices from other countries, especially New Zealand and Australia. Both Australia and New Zealand are facing similar situations where there is a growing disconnect between Indigenous-led justice and restorative justice practitioners. Studying how these two countries, especially their governments, are responding to this growing disconnect can offer guidelines and directions for the Canadian government (municipally, provincially, territorially and federally). Finally, owing to Covid-19-related lockdowns, the entire study was conducted virtually. Many research participants had difficulties with accessing a high-speed internet connection. It automatically compromised the relational and experiential dimension of this study. Future research should be in-person focused so that research participants can wholeheartedly participate as Indigenous-led justice and restorative justice have very many experiential qualities.

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    Noten

    • 1 The authors in this study used the term Indigenous-led to describe restorative justice programmes in British Columbia and Saskatchewan that are predominantly led and facilitated by Indigenous peoples.


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