Redressing the Right Wrong: The Argument from Corrective Justice
University of Toronto Law Journal, Vol. 62, No. 1, Winter 2012
40 Pages Posted: 18 Oct 2011 Last revised: 24 Apr 2012
Date Written: October 8, 2011
When we speak of historic injustice and the need for redress of those injustices, we tend to speak about land. After all, so the common narrative goes, what was taken from Indigenous nations was land, and so to redress past wrongs, land must be returned to present day Indigenous people. At this point, conversation tends to grind to a halt as present day citizens argue “I did nothing wrong, you can’t hold me to account for the sins of my father,” and lawyers begin speaking about things like the doctrine of laches or bona fide purchasers for value without notice. In this essay, I argue that all of this talk about land misses the point, because while settler government did in fact organize a wholesale theft of Indigenous lands, that is not all that was taken, and so is not all that needs to be returned to Indigenous nations to redress past wrongs. I make my argument within the framework of corrective justice, and I reason that the first thing you need to do in thinking about corrective justice is to identify the precise wrong that you are attempting to remedy. In the case of Indigenous nations, I argue that the single greatest wrong committed against Indigenous peoples has been the historical and on-going suppression of institutions in Indigenous communities that positively affirm Indigenous values, cultures and identities. The suppression of these institutions means that contemporary Indigenous people cannot flourish as Indigenous people because they do not have access to the social, cultural and political resources that affirm their identity as Indigenous people. To redress past and current day wrongs against Indigenous people in a framework of corrective justice is to return to Indigenous communities modern and contemporary institutions that affirm ancient Indigenous values and practices.
Keywords: Indigenous people, historic injustice, redress, corrective justice
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