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Moving Toward Justice: Legal Traditions and Aboriginal Justice

Price: $ 38.00 Back

Edited by John D. Whyte
288 pages, index, paper, 6 x 9, paper, spring 2008 ISBN 978-1895830-330

 

The struggle to reform Canada’s justice system is nothing short of a cry for justice itself, and the response to this cry is too slow and too narrow. The essays collected in Moving Toward Justice include analyses of the challenges of legal pluralism, restorative justice, gender and race in sentencing, notions of community, and reconciliation in Aboriginal justice. Part I of the book examines the legal and political context for Aboriginal justice, theories of law and the constitution, as well as theories of development and administration that compel much broader initiatives of Aboriginal self-government.

Part II examines specific initiatives and the problems some of them have created. Justice reform is complex and controversial. The challenges increase when the context for reform includes the search for greater safety and security in Aboriginal communities, recognition of cultural integrity, and the need to promote inter-societal respect.

This book aims to underscore the urgent need for Aboriginal justice reform, to suggest the outlines of the constitutional and administrative changes that will allow reform to occur, and to explore a series of specific issues that have arisen from reforms already made. It is a book for scholars, policy makers, and all those interested in or working with justice issues.

Table of Contents
Foreword - Tony Penikett
Introduction - John D. Whyte

The Constitutional Context
1/ Brian Slattery
The Generative Structure of Aboriginal Rights
2/ Merrilee Rasmussen
Honouring the Treaty Acknowledgment of First Nations Self-Government: Achieving Justice through Self-Determination

Conceptualizing Aboriginal Rights
3/ Martin Blanchard
Looking Ahead: A Pragmatic Outlook on Aboriginal Self-Rule
4/ Dwight G. Newman
Reconciliation: Legal Conception(s) and Faces of Justice

Sovereignty and Development
5/ Thomas Isaac
Striking a Balance: The Rights of Aboriginal Peoples and the Rule of Law in Canada
6/ John D. Whyte
Developmental and Legal Perspectives on Aboriginal Justice Administration

Effective Aboriginal Authority
7/ Stephanie Irlbacher-Fox
Justice Authorities in Self-Government Agreements: The Importance of Conditions and Mechanisms of Implementation and
Making Structural Changes in Criminal Justice
8/ Margot Hurlbert and John McKenzie
The Criminal Justice System and Aboriginal People

Aboriginal Women and Criminal Justice
9/ Angela Cameron
R. v. Gladue: Sentencing and the Gendered Impacts of Colonialism

Making Restorative Justice Work
10/ Barbara Tomporowski
The Impact of Reporting Requirements on Restorative Justice Agencies: Implications for Self-Determination

The Charter of Rights in Aboriginal Government
11/ Bill Rafoss
First Nations and the Charter of Rights
12/ Winifred Kamau
Indigenous and State Justice Systems in Kenya: Toward A Realization of Justice

Notes
Contirbutors
Index


Contributors' Biographies

Martin Blanchard is Coordinator and Assistant Director of the Centre
for Research on Ethics at the University of Montreal (CREUM). He holds a
Ph.D. in Philosophy from the University of Montreal and Paris IV-Sorbonne,
where he studied different variants of the politics of recognition, in particular
in the work of the German philosopher and sociologist Jürgen Habermas. His
area of research includes deliberative democracy, advocacy groups, pragmatic
ethics, politics of recognition, Aboriginal claims, philosophy of identity, philosophy
of language, and moral and political philosophy.

Angela Cameron is a Ph.D. candidate at the Faculty of Law at the University
of Victoria. She is an SSHRC Doctoral Fellow, and a University of Victoria
President’s Research Scholar. Her doctoral work examines the safety and
utility of restorative justice in cases of domestic violence. Her other research
areas include criminal law, property law, family law, socio-legal methods, legal
theory, and feminist approaches to law. She is a Research Associate at the
FREDA Centre for Research on Violence against Women and Children at
Simon Fraser University.

Margot Hurlbert is an Assistant Professor in the Department of Justice
Studies and the Department of Sociology and Social Studies at the University
of Regina. Margot graduated from the University of Regina with a B. Admin,
and Osgoode Hall Law School with an LL.B. and finally an LL.M. in constitutional
law after working for 12 years in private practice and seven years as the
Assistant General Counsel for SaskPower.

Stephanie  Irlbacher-Fox is a lifelong NWT resident. For the past decade
she has worked as a political advisor, researcher, and consultant to Indigenous
organizations on self-government negotiations and implementation, NWT
devolution, and related community-development processes. Stephanie is the
principal of Fox Consulting. She holds a Ph.D. from Cambridge University,
and is a Research Associate of the Canadian Circumpolar Institute and the
Steffanson Arctic Institute, Iceland. Stephanie lives in Yellowknife with her
spouse Andrew and their two sons.

Thomas Isaac holds a B.A., M.A., LL.B., and LL.M., and is a Partner at
McCarthy Tétrault LLP, Vancouver, BC. Mr. Isaac is a nationally recognized
authority in Aboriginal law and has published numerous books and many
articles in the area, including Aboriginal Law: Commentary, Cases and Materials
(3rd ed.). His published works have been cited with approval by numerous
Canadian courts including the Supreme Court of Canada and the Federal
Court of Appeal. He has appeared before the Supreme Court of Canada, the
British Columbia Court of Appeal and other courts on Aboriginal legal matters.
His practice is solely focussed on providing Aboriginal and constitutional
legal advice to businesses and governments across Canada. He is a former
Chief Treaty Negotiator for the Government of British Columbia and prior
to that was Assistant Deputy Minister for the Government of the Northwest
Territories responsible for establishing Nunavut. He has taught Aboriginal,
constitutional, and business law at a number of universities across Canada and
is a member of the bars of Alberta, British Columbia, Northwest Territories,
and Nunavut.

Winifred Kamau holds a Ph.D. from Osgoode Hall Law School, York
University, Toronto, as well as LL.B. and LL.M. degrees from the University
of Nairobi, Kenya. She is currently a Lecturer at the School of Law, University
of Nairobi. She is also an Advocate of the High Court of Kenya and has
practiced in various law firms in that country. Her research interests include
alternative dispute resolution, cross-cultural conflict resolution, traditional and
non-state justice systems, and gender and human rights.

John McKenzie a registered Professional Electrical Engineer, has an MBA
in finance, and is a graduate of the Richard Ivey School of Business Executive
program. John is also a sessional instructor at the University of Regina, Faculty
of Business Administration, in Policy and Strategy, and International Comparative
Industrial Relations. John’s current position at SaskPower is Manager
of Strategic Corporate Development, where he has had the opportunity to
explore Aboriginal history, culture, and strategic issues.

Dwight Newman is an Assistant Professor in the University of Saskatchewan,
College of Law, where he teaches constitutional law, international criminal
law, and a seminar course on ?eorizing Aboriginal Rights. He completed
his undergraduate degree at the University of Regina and his law degree at the
University of Saskatchewan. He subsequently served as a law clerk to Chief
Justice Lamer and Justice LeBel at the Supreme Court of Canada; he has also
worked for the Canadian government and for human rights organizations
in China and South Africa. He is a member of the Ontario bar. He most
recently completed graduate work and his doctorate in legal theory at Oxford
University in 2005, where he studied as a Rhodes Scholar and a SSHRC Doctoral
Fellow. In his doctoral thesis, he sought to develop a theoretical account
of collective rights. In his ongoing research, Professor Newman has recently
commenced a three-year SSHRC Standard Research Grant program on
Theorizing Aboriginal Rights.

Tony Penikett is the author of Reconciliation: First Nations Treaty Making
in British Columbia, published by Douglas & McIntyre in 2006. Currently a
Vancouver-based mediator and negotiator, Penikett was Deputy Minister of
Negotiations and, later, Labour for the BC government. His 20-year political
career included 18 years in the Yukon Legislative Assembly.

Bill Rafoss is the chief investigating officer at the Saskatchewan Human
Rights Commission, a position he has held for more than 20 years. Bill’s chapter
was the subject of his M.A. thesis in Political Studies, which he defended
in 2005 at the University of Saskatchewan. He has presented on the topic of
the intersection of Aboriginal rights and human rights at numerous conferences
including the “First Nations, First Thoughts” conference in Edinburgh,
Scotland. Bill worked previously for the Saskatchewan Legal Aid Plan and in
the NGO sector. Under Bill’s leadership, the Saskatchewan Human Rights
Commission began using Aboriginal elders to resolve some human rights
complaints.

Merilee Rasmussen is a lawyer in private practice in Saskatchewan where
she has worked for many years, both on behalf of First Nations and on behalf
of the Government of Saskatchewan regarding issues of Aboriginal and treaty
rights. She has a B.A. and M.A. in political science from the University of
Regina. Her M.A. thesis, Democracy and the Saskatchewan Legislature (1995)
was awarded the Governor General’s gold medal. She also has an LL.B. and
LL.M. from the University of Saskatchewan. Her LL.M. thesis Prairie First
Nations and Provinces: Is there a Fiduciary Relationship that gives rise to Fiduciary
Obligations? (2001) addresses the fiduciary obligations of the provincial
Crown to prairie First Nations. As legislative counsel and law clerk for the
Saskatchewan Legislature from 1976 to 1988, the author is also familiar with
the legislative process and the management of legislative information. She is
chair of the Law Reform Commission of Saskatchewan and is personally involved
in the Commission’s work with the Uniform Law Conference of Canada
in extending its Commercial Law Strategy to Aboriginal jurisdiction.

Brian Slattery is a Professor of Law at Osgoode Hall Law School, York
University, Toronto. He has numerous publications dealing with Aboriginal
and treaty rights and the history of Indigenous relations with the Crown. In
other scholarly work, he has explored the philosophical foundations of human
rights and the continuing vitality of the natural law tradition. He was elected
to the Royal Society of Canada in 1995 for his contributions to the development
of the law relating to Aboriginal rights.

Barbara Tomporowski is a Senior Policy Analyst with the Ministry of Justice.
Her work focuses on Aboriginal justice and restorative justice projects.
She co-chairs the Federal-Provincial-Territorial Working Group on Restorative
Justice, and helped develop the provincial Action Plan responding to the
recommendations of the Commission on First Nations and Métis Peoples and
Justice Reform. She teaches as a sessional lecturer with the School of Justice
Studies at the University of Regina.

John Whyte is the Law Foundation of Saskatchewan Professor of Law at the
University of Saskatchewan. He has held academic appointments at a number
of Canadian universities including Queen’s University, where he also served as
Dean of Law, the University of Toronto, York University, and the University
of British Columbia. Until recently he was a Senior Policy Fellow at the Saskatchewan
Institute of Public Policy. He has edited and co-edited numerous
books and is a co-author of Canada... Notwithstanding.

Price: $ 38.00 Back

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