Most cases involving an indigenous party are heard in the general Canadian courts. The exception is Specific Claims - these are generally monetary damage claims made by a First Nation against the Crown regarding the administration of land and other First Nation assets, and to the fulfillment of Indian treaties that have not been accepted for negotiation or that have not been resolved through a negotiated settlement within a specified time frame. Special claims are heard in the Specific Claims Tribunal, which was established in 2008.
Decisions of the Specific Claims Tribunal are available on:
In 1996, s 718.2(e) was inserted into the Canadian Criminal Code. It altered the guidelines used by judges and provided specific provisions for the sentencing of Aboriginal offenders. In 1999, the Canadian Supreme Court ruled on the application and interpretation of section 718.2(e) in the landmark case of R v Gladue (1999) 1 SCR 688. In Gladue, the Court acknowledged that discrimination within the legal and criminal justice systems had contributed to a crisis of over-incarceration, and affirmed that the overrepresentation of Aboriginals is not simply related to social disadvantage but to the more complex legacy of colonialism. The Court specifically directed judges to to alter conventional legal practice and 'take judicial notice of the broad systemic and background factors affecting Aboriginal people, and of the priority given in Aboriginal cultures to a restorative approach to sentencing'.
In 2001, in order to address the systemic problems acknowledged in the Gladue decision, and to implement its specific directions to the judiciary, the first Gladue court opened in Toronto. There are now at least 19 such courts, in many provinces. Gladue courts are regular Canadian criminal courts applying Canadian law; they do not represent a distinct Aboriginal form of justice. They do, however, acknowledge that the traditional principles of sentencing are problematic and that a new set of legal procedures should be used to address the treatment of Aboriginal offenders. These courts rely on expert information from the community to contextualize Aboriginal histories and identify community supports. Gladue courts are specifically designed to ensure that sentences conform to the principles set out in section 718.2(e).
Source: Paula Maurutto and Kelly Hannah-Moffat, 'Aboriginal Knowledges in Specialized Courts: Emerging Practices in Gladue Courts' (2016) 31(3) Canadian Journal of Law and Society / La Revue Canadienne Droit et Société 451-471 (UniMelb staff & student access)
The decisions of Gladue Courts are available on the same databases as other Canadian decisions. See the Cases pages of our Canadian Legal Research Guide for information on finding Canadian decisions.