The Mohawk Council of Akwesasne has done something historic. They have created the first indigenous legal system in Canada outside of governmental control, since the subjugation of First Nations by the current government and its predecessors.
The system is comprised of justices and prosecutors who do not have to have law degrees. The prosecutors are required to have some advocacy experience, but the Akwesasne justices will only receive a 10-week training from a law firm once passing the good character and reputation requirements.
The Akwesasne legal system will enforce 32 civil laws, ranging from the regulation of tobacco, wildlife conservation, and sanitation. They will not address criminal justice matters.
Autonomy at Akwesasne is not something new. The structure through which the council operates was first established in 1876 with the Indian Act, which itself authorizes elected band councils to make limited legal decisions. The powers of these councils are detailed through by-laws under s. 81 of the Act.
These powers can be enforced under s. 107 through Justices of the Peace, who can also enforce some limited Criminal Code matters. Although it is largely presumed that these justices of the peace would sit in a Provincial Court, at some reserves the band councils decided to create a local court instead.
However, until 2014 any by-laws created by the band council under s. 81 of the Act were required to be submitted to the Minister for approval. Ministerial decisions were largely arbitrary, and granted or withheld without much explanation or recourse by the band councils. Some band councils began to simply refuse to submit by-laws to the Minister, which prompted a review and scrutiny of the Act. In response, the amendments to the Act were intended to create healthier and more self-sufficient First Nations communities.
One of the continuing challenges despite these changes are that the Justice of the Peace appointed under the Act technically could not enforce communal laws or customs which fell outside of the by-laws or limited Code matters. The Justices could also not have their decisions enforced by indigenous Peacekeepers, who are often the primary mechanism of law enforcement on some reserves.
In response, some reserves attempted to negotiate an agreement starting around 2002-2003, whereby their local court decisions would be recognized and enforced by a local court, but only because the justices would be members of the bar, and would be jointly appointed between the band council and the province. Ultimately these negotiations fell apart, as the terms for the arrangement could not be agreed upon. Shortages in Justice of the Peace appointments, and considerations about independence following the 2003 case in Ell v Alberta, have created some misgivings with the mechanisms under the Act, and may have prompted this new system announced today.
The Akwesasne system appears to operate entirely differently. Although the details of their new legal system are not yet available, there is some indication that Justice officials are retroactively examining how they can recognize and enforce their decisions. As the bulk of the laws appear to be focused on civil disputes, there may already be precedent on the issue generally within the common law system.
The 2007 Supreme Court of Canada decision in Bruker v Markowitz held that moral or religious obligations can become legally binding in some circumstances, if those obligations have been formalized in some way. When applied with the lens of s. 25 of the Charter, there should be no reason why these courts, even if lacking formal underpinnings of our legal system, could not resolve the vast majority of civil disputes on their reserve involving their members.
What we may observe are some interesting judicial reviews of the reasonableness of these decisions, and the complexity of a non-indigenous court system attempting to refrain from de-legimizing autonomous conflict resolution systems, while still ensuring the rule of law in Canada.