Indigenous Law, Settler Law, and the Role of Mediation in Truth and Reconciliation

When we talk about justice in Canada, we’re often talking about two very different systems of law: Indigenous law, rooted in community, relationships, and restoration; and settler law, rooted in punishment, hierarchy, and the authority of the state. Understanding the differences between these systems is an essential step toward reconciliation. Mediation, as a practice of dialogue, healing, and relationship repair, can serve as a bridge between these approaches.

Indigenous Law: Restorative, Relational, and Community-Based

Indigenous legal traditions are not uniform—there are many distinct nations, each with their own laws, teachings, and practices. However, there are common threads across many traditions:

Restorative Focus: The aim is to repair harm, not just punish the wrongdoer. Justice is seen as relational—how harm affects not only individuals but also families, communities, and the natural world.

Community Accountability: The process often involves Elders, families, and community members. Everyone has a role in finding a resolution that restores balance.

Holistic Perspective: Indigenous law considers spiritual, emotional, and relational aspects of harm, not just the legal facts.

Teachings and Stories: Laws are often carried through oral traditions, ceremonies, and stories that guide behaviour and decision-making.

Settler Law: Punitive, Hierarchical, and State-Based

The Canadian legal system—sometimes referred to as “settler law”—is rooted in European traditions and structured around state authority. Its key characteristics include:

Punitive Focus: Justice often means assigning guilt and enforcing punishment (fines, incarceration, probation) rather than repairing relationships.

Adversarial System: Lawyers argue opposing sides before a judge. The goal is to “win,” not necessarily to heal.

Individual Responsibility: The focus is on the offender and the state, rather than the wider community impacted by harm.

Codified Rules: Written laws, statutes, and precedents form the backbone of the system, often leaving little space for flexibility.

Where Mediation Fits In

Mediation is a voluntary process where a neutral third party facilitates dialogue between people in conflict. While rooted in settler legal processes, mediation also echoes restorative principles found in Indigenous law:

Dialogue Over Judgment: Mediation prioritizes conversation, giving space for people to share stories, acknowledge harm, and hear one another.

Focus on Relationship: Instead of assigning blame, mediation seeks to repair trust and find mutually agreed-upon solutions.

Empowerment and Voice: Both parties participate actively in shaping the outcome, unlike in court where decisions are imposed.

Because mediation creates space for listening, accountability, and healing, it can serve as a tool that supports reconciliation efforts. It reflects some of the restorative values central to Indigenous legal traditions, while also being accessible within settler legal frameworks.

Mediation and Truth & Reconciliation

The Truth and Reconciliation Commission of Canada (TRC) emphasized the importance of repairing relationships between Indigenous and non-Indigenous peoples. Mediation can support this work in several ways:

Creating Safe Spaces for Dialogue: Mediation can be a forum for communities, governments, and organizations to acknowledge harms and commit to change.

Blending Legal Traditions: Mediation can be structured in ways that honour Indigenous teachings—such as including Elders, ceremonies, or restorative practices—alongside Western methods.

Building Lasting Relationships: By focusing on trust and respect, mediation moves beyond short-term settlements to long-term reconciliation.

Moving Forward

The differences between Indigenous law and settler law highlight the deep cultural divides in how justice is understood and practiced in Canada. Mediation cannot replace the need to recognize and uphold Indigenous legal orders, but it can serve as a supportive tool. By centering dialogue, listening, and relationship repair, mediation helps build the foundation for reconciliation—one conversation at a time.

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