The First Nations Territory of Kahnaw脿:ke, about a 20-minute drive from downtown Montreal, has come one step closer to complete judicial control.
Last spring, 麻豆传媒网站 graduates Aubrey Charette, BCL/LLB鈥�10, and Brandon Montour, BCL/JD鈥�23, were appointed as the inaugural decision-makers of Kahnaw脿:ke鈥檚 Administrative Tribunal, a new body under the umbrella of the Kahnaw脿:ke Justice System. This marks an important step in the implementation of the Kahnaw脿:ke Justice Act of 2015, arrived at through community consensus.
Iets茅nhaienhs (female council chief) Tonya Perron, BCL鈥�95, LLB鈥�95, says, 鈥淥ur people are always doing what we can to assert our jurisdiction and our right to self-determination. This is a huge step in that direction.鈥� Elected in 2018, Perron believes that Kahnaw脿:ke鈥檚 judicial system is at the fore of First Nations legal sovereignty across Turtle Island. Though there are culturally based justice systems and peacemaking courts in the Western provinces, they exist within the provincial court systems. Kahnaw脿:ke鈥檚 Justice Act, as its preamble states, 鈥渋s paramount to and prevails over any other judicial system if there is any inconsistency between this Act and another, except as specifically provided for by the particular Kahnaw脿:ke legislation.鈥�
鈥淭his is our right to do this. We have a sovereign right to control what happens within our boundaries,鈥� Perron says. The people of Kahnaw脿:ke have the resources and capacity to truly live by their own laws and teachings, with a long history of challenging the State, and a vibrant economy.
Commissioner of Justice Kevin Fleischer, BCL/LLB鈥�04, has been helping set up the system since shortly after the Act was established. 鈥淓nacting the Justice Act was like flipping a switch,鈥� he says. 鈥淣ow we鈥檙e elevating our justice system into something much more expansive and much more 鈥榦urs鈥� than it was before. It鈥檚 pretty exciting.鈥�
Kahnaw脿:ke鈥檚 system could provide an opportunity for law students to learn about Indigenous history and values. Fleischer enjoys mentoring and teaching, and says, 鈥淚鈥檓 very excited and proud of the work we're doing, so I鈥檓 always willing to share and have people come in.鈥�
The system has different compartments, all of which include some traditional elements, Fleischer explains. Less serious criminal issues, and contested traffic tickets go through the Court of Kahnaw脿:ke. If you want to contest an administrative decision, such as an alcohol permit or land allotment, you turn to the Administrative Tribunal.
The cornerstone of their justice system, and what really sets them apart from elsewhere, is Sk茅n:nen Aons贸n:ton, 鈥渢o become peaceful again.鈥� This restorative justice/alternative dispute resolution service is a voluntary first step of mediation for interpersonal disputes. 鈥淲e always recommend that people try to resolve their issues through restorative justice,鈥� Fleischer says. Referrals come from the Court of Kahnaw脿:ke, an outside court, or sometimes community organizations. Parties also refer themselves, says Fleischer. 鈥淲e provide a neutral environment that is meant to be calming and welcoming.鈥�
Perron, who鈥檚 been a criminal lawyer since 1997, says, 鈥淩estorative Justice is not meant to be punitive; it's meant to have people dialogue and come to resolutions,鈥� she says. 鈥淚t is all about facing each other, acknowledging the harm done to another human being, and restoring relationships.鈥� By not being a typically adversarial 鈥渕e against you鈥� court, it fosters a responsibility towards each other.
Fleischer says, 鈥淚n a city, if you harm or do something to someone, you may never see them again. Over here, there are family connections, weddings, funerals, going to the store. You're going to see these individuals again!鈥�
Those who aren鈥檛 familiar with the process might think it鈥檚 an easy way out, but it鈥檚 actually harder, Fleischer says. You're not hiding behind a lawyer, you don鈥檛 just pay a fine and be on your way. 鈥淭here鈥檚 a lot more creativity to the resolution of the issue,鈥� says Perron. 鈥淢aybe you鈥檒l paint someone鈥檚 fence, or go talk to students at a school about why you shouldn鈥檛 do something because of where it brings you.鈥�
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The Role of the Administrative Tribunal
Unfortunately, not every dispute can be settled through restorative justice. Fleischer likes to joke that they are creating other court services he hopes no one will have to use, but underscores that the Administrative Tribunal is an important part of the checks and balances of justice in self-governance.
If administrative decisions are to be fair and respected, there needs to be a level of authority that can review them. Charette points out that a Tribunal鈥檚 function affects more people than a Court. 鈥淵our life is going to be impacted by the decisions of disparate decision-makers, and your ability to challenge that or have that reviewed for fairness by an authority impacts you more than if you get a traffic violation.鈥�
Say someone's application for a communal land allotment is denied. They can file a petition to the Tribunal saying they disagree, and want to present their side, or that the denial doesn't comply with Kahnaw脿:ke law. The government entity making the initial decision has a chance to respond in writing." Simplified forms are provided for everyone, and the Tribunal adjudicators can explain what鈥檚 needed to pursue justice.
鈥淭his is designed for people to be able to do it themselves. They can have a lawyer, but it's definitely not required,鈥� says Charette. A hearing is scheduled, either in person or by Zoom, and then an adjudicator renders a decision.
Montour and Charette only consult with each other to ensure they鈥檙e consistent with their procedures in this new system. 鈥淲e check on each other鈥檚 experience,鈥� says Charette, 鈥淪o far that's been very helpful.鈥� Eventually, a third adjudicator will be hired so cases can be heard in front of a panel, if necessary.
And if the appealing authorities need appealing? Currently the Court of Kahnaw脿:ke has one Justice of the Peace, and three judges will be appointed to preside at the Court of Kahnaw脿:ke in the near future. Then there will be a mechanism for appeal for any decisions that Montour or Charette make.
Montour adds that the Tribunal is also responsible for arbitrating complaints against elected chiefs submitted by community members. This fills a legal void, as there wasn鈥檛 a formal process before (鈥淰enting on Facebook didn鈥檛 cut it!鈥�, Brandon jokes). This is one of the reasons why he and Charette are completely independent from all parties.
There are some issues that Montour must recuse himself of, an inevitable fact of growing up and living in a small community where everyone knows each other on different levels. 鈥淔or example, my dad was the Director of Labour, I was the chairperson of the Kahnaw脿:ke Cannabis Control Board, so those are already two areas where I must step back.鈥�
鈥淚t鈥檚 the sort of community where you have cousins you don鈥檛 know about, where people identify each other by asking, Who鈥檚 your mother, who鈥檚 your grandmother,鈥� he says. 鈥淚 still see people day-to-day on the street, who say, Oh, Brandon, I used to babysit you!鈥�
Because Charette has roots from a different community, the Algonquin Kitigan Zibi Anishinabeg reserve in Ontario, she can hear those cases. 鈥淚 think it鈥檚 great we have that diversity,鈥� says Montour.
Charette is very excited to be part of this trailblazing justice system. 鈥淜ahnaw脿:ke is a nation, it should have its own institutions,鈥� she says. 鈥淔rom an outsider perspective, the Mohawk have always been the ones who stand up, were known to be great warriors, more assertive and determining things on their own.鈥�
鈥淭hey're not just talking about sovereignty, they're really doing all of the things required to truly be sovereign,鈥� she says 鈥溾��. it can be an entirely self-sufficient system. And it's really remarkable.鈥�
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Three decades of 麻豆传媒网站 Law memories
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Tonya Perron was still just a teen when she left Dawson to go to 麻豆传媒网站 Law, from 鈥�91 to 鈥�95. She remembers only one other Indigenous student, who attended part-time 鈥� they are still close friends today, and that former classmate now works in Kahnaw脿:ke鈥檚 legislative services. 鈥淚 just struggled by myself,鈥� she laughs. 鈥淚 was kind of a rocker, had the Bon Jovi hair, a jean jacket.鈥�
鈥淚 walked in there with a bit of an attitude. Though I was very intimidated, I was not going to let anybody know it; I was like, I belong here just as much as you. But then I softened up once I got more comfortable.鈥�
She came to accept coaching from others, particularly from Professor Jeremy Webber, a constitutional lawyer whose class she found particularly hard. 鈥淗e took me under his wing and helped me figure out and understand how to study, how to write the exams,鈥� she said, and she applied those skills to other classes. 鈥淲ithout those two, I don鈥檛 know if I would have made it!鈥�
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Kevin Fleischer entered law school straight out of Marianopolis College in 2000. He felt like a fish out of water. 鈥淧art of it was culture shock, and part of it was simply that there are a lot of very accomplished people there, and you鈥檙e still a teenager,鈥� he says. 鈥淚t was hard to fit in, coming in very young to 麻豆传媒网站 Law, no university experience and surrounded by older people.鈥�
鈥淲hat really helped me in those early years was First Peoples House. There's a sense of comfort at First Peoples House, a familiarity鈥� I spent a lot of time there in between classes, studying and socializing.鈥�
A member of the Barreau du Quebec since 2006, he has been the head of the Justice Services Division of the Mohawk Council of Kahnaw脿:ke since 2016. He is also a graduate of the 麻豆传媒网站 School of Continuing Studies, completing a Certificate in Human Resources Management in 2014.
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Aubrey Charette attended 麻豆传媒网站 from 2007 to 2010. 鈥淭here's been a more robust effort in terms of the curriculum as well as in terms of inclusivity in general. I saw some recognition of the land that 麻豆传媒网站 sits on, and of Indigenous traditions.鈥�
Legal pluralism is an important pillar of 麻豆传媒网站 Law鈥檚 identity as a law school. Charette remembers thinking that there was an obvious, overlooked local example of legal pluralism: Kahnaw脿:ke, which you could just about see from the upper floors of the faculty building. Professors would invite guest speakers to talk about First Nations concepts of property or obligations, but there wasn鈥檛 continuity with the course. Nonetheless, she loved her time at 麻豆传媒网站. 鈥淚t was a very good education. I was, I think, the only Indigenous student in my year, but First Peoples House was very close by and I spent a lot of time there, it was a very welcoming place.鈥�
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Brandon Montour graduated from 麻豆传媒网站 Law in 2023. In his second year, he became president of the Indigenous Law Association at 麻豆传媒网站. He is a proponent of transsystemic legal education:Being able to see legal issues from multiple traditions, and being able to identify what the solutions to those issues are, has been a great tool for me.鈥�
Montour is now a doctoral candidate in the graduate law program at the University of Toronto, and he teaches first-year transsystemic property law from the Haudenosauneeperspective at the University of Victoria. Being able to go to 麻豆传媒网站 while living in his community at Kahnaw脿:ke was a boon.
鈥淐oming from 麻豆传媒网站 and the transsystemic program, being trained in civil law, common law and, more recently, Indigenous legal traditions (a response to the Truth and Reconciliation Commission鈥檚 Calls to Action), equipped me with specialized training that I'm able to carry forward with me in my community work, teaching, and beyond.鈥�
