Colonialism and law

Indigenous court provides a solution to overrepresentation in Canadian justice system

The Supreme Court of Canada helped pave the way for a solution, but several communities including Williams Lake seem reluctant to apply a renewed Indigenous law approach
Photo: Sean_Marshall

The international community has witnessed the peeling back of the “buckskin curtain,” a term coined by Harold Cardinal in his 1969 book The Unjust Society, meaning the horrendous treatment of Indigenous peoples at the hands of Canada is now increasingly part of collective mainstream knowledge.

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The fallout from this highly dysfunctional relationship has created a great burden in nearly every part of the Canadian legal system and will soon lead to a provincial jail on the Osoyoos reserve in B.C.

In 2013, a report found 5 per cent of all Indigenous people in Canada reported “being victimized” by crime. Yet Indigenous people make up between 33 and 100 per cent of people in sentenced custody across Canada, the former statistic representative of B.C. and the latter of Nunavut, according to Statistics Canada, 2014. Nationally, in 2011 and 2012, Indigenous females accounted for 43 percent and Indigenous males 27 per cent of the incarcerated population.

Widespread change is needed to address the root causes of incarceration and create better outcomes for individuals and communities.

Restorative justice

Recently, Band Chief Joe Alphonse of the Anaham First Nation, which is located west of Williams Lake, B.C., has called for a different approach to violent crime involving Indigenous peoples.

RCMP allege that a targeted shooting in the area left two men hospitalized on Jan. 2, as reported in the Province. Law enforcement is calling for any help identifying those involved.

But Alphonse acknowledges that a familiar barrier looms in the form of a tight-lipped community unwilling to cooperate with a colonial legal system that is failing Indigenous people.

Walter Cobb, mayor of Williams Lake, is calling for more stringent sentencing and the implementation of a pilot program that would address the myriad problems that lead to violence and other crime in the area.

There’s already a unique solution, however, which is being employed elsewhere in B.C. and across Canada. First Nations courts stem from a 1999 court case in Ontario known as the Gladue decision.

Aboriginal courts in Canada

The Gladue case established an alternative approach for Indigenous peoples based on an understanding of the complex issues that Indigenous peoples in Canada face after having greatly suffered as a result of Europeans settlement.

The first Aboriginal court opened in October 2000 in Alberta, with northern Saskatchewan and Ontario quickly following suit a year later. These courts are not fully assert Indigenous laws tothe process, but modify sentencing procedures.

A defining qualifier for an Indigenous person to enter Aboriginal courts is that the presumption of innocence does not apply. Everyone who wants to be sentenced in Aboriginal court enters knowing they have agreed to a guilty plea.

“An essential part of the sentence [often a probation order] is a healing plan, which is aimed at addressing underlying issues of why this individual is involved in the criminal justice system,” said Linda Thomas, who was instrumental in establishing a First Nations court in Kamloops, B.C., during a CBC Radio interview after winning a YMCA Peace Award.

Aboriginal courts are based on a restorative justice model that allows for anyone who wishes to be part of sentencing to give input.

“What’s really key to its success is the involvement of the elders or respected community members,” said Thomas.

This method keeps offenders in the community and allows for agreed-upon rehabilitation measures and relevant reparations to be implemented.

Curtailing relapses

The recidivism rate of prisoners who have little interaction with community or culture is considerable, and restorative justice seems increasingly necessary in a Canada that is waking up from a colonial hangover.

The revisionist history that seeks to whitewash the Canada-Indigenous relationship is falling by the wayside.

Citizens are realizing that the Canadian government did not have the best interests of Indigenous peoples in mind, and in reality sought their elimination by whatever means necessary so there could be no question as to who owns the land.

Putting Canadian law on Indigenous lands

Led by business-focused leader Clarence Louie, the Osoyoos band in southern B.C. will run the first provincial jail on reserve land before the end of this year.

Louie was part of a panel that produced recommendations in 2007 for an overhaul to the corrections system in Canada.

That panel’s credibility and competency in the area of corrections policy was later refuted in a 2009 report by Michael Jackson, UBC Law Professor, and Graham Stewart, former executive director of the John Howard Society.

Louie stated clearly in a 2013 Maclean’s article that he wants more focus on training in trades and job skills over “New Age bullshit” (meaning traditional knowledge) because he doesn’t “know anybody that can make a living, pay a mortgage or keep their kids in hockey by making drums and teepees.” The article says “He was disgusted, when touring an Edmonton prison, to see Aboriginal people working at crafts.”

As Louie opens a Canadian jail on Indigenous lands, what he may not know is that at this particular time crime rates are going down in Canada and his ability to almost completely disregard traditional healing for Indigenous peoples seems to be outdone only by Canada’s most recent former prime minister.

Lower crime rates

What Louie called “New Age bullshit” predates anything brought here from afar.

Fortunately, people such as Linda Thomas and Karen Whonnock remember that pre-contact Canada was populated by peoples as diverse as the major nations of the world. Hundreds of tribes with different cultures and languages. So a one-size-fits-all legal system is bound to come up short every time.

Aboriginal courts are not a get-out-of-jail-free card, and each court reflects the culture of the peoples in a given area.

A Gitxsan court might mandate a punishment for murder that is a modern-day equivalent to the traditional custom of assuming the familial and financial responsibilities of the person whose life was ended.

Today, a person who took a life could be made to provide lifelong financial support and submit to monthly cultural training, which would allow the offender to work toward becoming a beneficial member of the Gitxsan community — one who understands they are valued.

Diminishing the colonial legacy

The tough-on-crime approach perpetuates the colonial oppression of Indigenous people, which was acknowledged by Canada in the Gladue decision.

In the United States, tribal courts have been set up in all but 20 states and have jurisdiction of the entire process, and there’s an Indigenous judges association. This is in contrast to the Aboriginal Court system here, in the sense that in the U.S. Indigenous people get to actually appear at trial, and not just plead guilty in order to access sentencing.

As a friend of mine recently remarked, for an Indigenous person to be guilty without trial seems like a colonial approach, but this issue can be addressed as Aboriginal courts evolve.

The important pieces are that these courts mean Indigenous people are not sent to jail, which currently occurs at 10 times the non-Indigenous average in Canada, and cultural teachings are part of the sentence.

If the buckskin curtain is to ever be torn down, Indigenous people must be allowed to restart Indigenous courts across Canada.

A solution will not be found with the same thinking that created the problem. It shouldn’t take an Einstein to apply that mentality here.

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