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The following is a reprint
from the FSIN Tribal Justice Symposium
It's time for action. This somewhat overused but fitting idiom appropriately represents the current stage of the development of Aboriginal Justice as the concept has remained practically dormant since its original introduction. The fact remains that since the late 1960's numerous studies and reports are almost all that have been accomplished since the initial realization of the troubled Aboriginal people/justice relationship.
Nevertheless, the past decade has seen increased interest and activity in the area of Aboriginal justice. At the forefront of this activity is the Federation of Saskatchewan Indian Nations (F.S.I.N). Since the organization of the Justice portfolio, the F.S.I.N has been actively seeking to resolve the strife between the First Nations people and the justice system. But, because the conflicts are footed in the long-standing social and economic problems of the First Nations people, which is in turn rooted in the long-standing dominant forces of the non-aboriginal people, the task of reformation is difficult one.
Through much of the past research and reports, it has been repeatedly found that the Canadian Criminal Justice System has overly mistreated the First Nations people whether they are the accused or the victims of crime. The all too familiar statistics regarding over-incarceration, recidivism and the severe social and economic conditions of the First Nation people attest to the common negative findings within the flood of studies.
There is a need to change, and this need is one which is heard from both the Aboriginal and non-aboriginal population. Rather than producing more literature which will undoubtedly paint the same picture, action must be taken to bring the over-studied problems to resolution. This of course will require all levels of government authority and First Nations representation to establish a common goal to improve the current conditions and statistics.
The F.S.I.N maintains that there is a fundamental need for change in the philosophy and practice of the current justice system. Steps must now be taken which will create the momentum for the ultimate goal of an Indian controlled justice system.
II. The Concept
The F.S.I.N Tribal Justice Systems Symposium will act as an information networking session and a starting point for many of Saskatchewan's 72 First Nations in the establishment of new justice arrangement or initiatives. Practitioners will be invited from various United Sates and Canadian First Nations Court Systems to inform the conference participants of the concept of Tribal Justice Systems.
The intended audience of the assembly are the Saskatchewan First Nations and the relative members of the Federal and Provincial Justice Administration systems.
The proposed Tribal Justice System Symposium will take place on March 30 and 31 1994 in Saskatoon, Saskatchewan.
The objectives of the F.S.I.N Tribal Justice Systems symposium are:
1. To create awareness among the Saskatchewan First Nations and the non-aboriginal authorities of the need of the community based (urban and rural) Tribal Justice Systems which can only prove to be beneficial to all parties involved. Not only is this concept advantageous of the First Nations people as individual and communities, but is also a step for the whole of Saskatchewan First Nation toward an Indian Controlled Justice System. This represents an essential function of Indian Self-Government.
2. To create understanding and acceptance among the Saskatchewan First Nations and the non-aboriginal authorities of the viability of Tribal Justice Systems. Currently operational initiative and the F.S.I.N model will be utilized to achieve this.
3. To create action among the Saskatchewan First Nation people and the non-aboriginal authorities to work in collaboration in the production of a suitable Tribal Justice Systems specific to their environment and needs.
4. To ensure the involvement of Saskatchewan First Nation people in the planning process of the Tribal Justice Systems as they will be asked to identify their individual community experiences and needs in the area of justice. First Nations participant input is paramount as it will be used to improve the current F.S.I.N models for future First Nations use.
This concept sets out the purpose and the need of a Tribal Justice System Symposium specifically for Saskatchewan First Nations and the Federal and provincial Justice Administration systems. The intention of the F.S.I.N is to create awareness, interest and action in the concept of Tribal Justice Systems.
For too many years the First Nation people have been made to contend with the imposed systems, legal or otherwise, perhaps it is time to try something which is essentially new in theory and actually old in practice - Indian Self-Government and social control of FIRST NATIONS TRIBAL JUSTICE SYSTEMS.
The F.S.I.N. maintains that the ultimate goal is an Indian-controlled justice system, but is also maintains that this concept is an evolutionary process. The formulation an operational Saskatchewan First Nations Tribal Justice Systems represents step in this process, and the current conditions demand that the process begin.
The Federation of Saskatchewan Indian Nations (FSIN) is made up of 72 First Nation, 10 Tribal Councils and 85,000 Treaty First Nation citizens in Saskatchewan. Tribal groupings include the Dene in Northern Saskatchewan, Cree in the North and Central part to the province, the Dakota and Assiniboine in the Central and Southern part of the Province, and the Saulteaux in the South.
The Executive of the FSIN is made up of a Chief and five Vice-Chiefs, each of whom have specific portfolios and Commissions for which they are responsible. The commissions are made up of representatives from each of the ten Tribal Councils as selected by the Chiefs of those Tribal Councils. I chair the First Nations Justice Commission, which is charged with the responsibility of developing a First Nations controlled justice system for Saskatchewan. Please notice that I did not say "separate justice system" or " parallel justice system' because we are not yet ready to identify the final form of the Indian controlled justice system that is under development this time. We do believe that the Justice Commission is doing a great deal of good work and are here to take a positive approach to working together with allies from the academic community, from the other governments, and from our own people,
When Kim Campbell was the Minister of Justice she said that there was no room in this country for a separate aboriginal justice system. A few decades earlier, Pierre Elliot Trudeau said that there was no room in this country for special status, for treaty rights or for historical might-have-beens. However, in 1973 the Supreme Court of Canada in the Calder case, recognized aboriginal right to land and Pierre Elliot Trudeau said, "well maybe I was wrong." This was a major concession for him, so Trudeau said "maybe you do have more rights than I originally thought," and that is what we have to focus on. Society has to understand aboriginal and treaty rights as we understand them and that understanding has to be passed onto all levels government. In particular, The people who control the administration of justice in this country need an understanding of aboriginal and treaty rights. The treaties are very important to our people. Some people may think that these 120 year old documents have no place in contemporary society. People who think that way are absolutely wrong. In fact, the treaties set out the political and administrative arrangement between ourselves and the federal crown and please remember that these treaties were negotiated before the provinces came into existence.
However, it is my opinion that the provinces have as much responsibility in the fiduciary obligation under treaty as does the federal crown. When you hear the provincial governments saying, "We put the inherent right to self-government and we support treaty rights for as long as the federal crown pays for it, 'we have to remember that it is not the federal crown that's getting the benefits of production from this land that was once ours but the provincial government who is the main beneficiary of the resources within this country.
There are two important points to study in regards to the treaties and the application of justice within our territories. The first is that the treaties themselves are a manifestation of the inherent rights of self-government.
Self-government is a reality. Just because we haven't exercised this right of self-government because of the twin devils of over-riding legislation and lack of resources to set up our governments system does not mean we have lost the right to self-government.
The justice commission firmly believes that if we are to exercise the right to self-government we must first of all set up a 'First Nations controlled justice system in our communities and this system will be part of a community constitution which will eventually replace the Indian act as the governing bodies of our communities and our lives.
The second important thing to remember is that the treaties contain provisions, which give the First Nations the authority to maintain peace and good order between ourselves. These peace and good order clauses in Treaty 6 and Treaty 8 recognize our right to a justice system and our right to develop and enforce law in our communities.
Our Historical grievance regarding the Indian Act are well documented, and the political direction of First Nations has been eloquently brought forward. I want to add a few brief points. The destruction of the self-government institutions of First Nations on the Prairies was a direct result of federal legislation - the Indian Act. The provisions of the Indian Act were enforced by Indian Agents who had the powers of the Justice of the Peace in our communities and who could call upon the North West Mounted Police to enforce their decisions. Violators were often incarcerated off reserve out of our communities. The Indian Act essentially took away all self-governing powers of First Nations and replaced them with Euro-Canadian systems of government. It even gave the provincial government jurisdiction certain areas by virtue of the Section 88 of the act, which stated in the absence of federal law or treaty rights provincial law shall apply on Indian Territory.
It will talk some time, but eventually the Indian Act will be phased out and Indian driven legislation which is accepted by the community and supported by the community will replace it and that is where we will regain the responsibility and authority to manage our own justice systems in our own communities.
As a result of decisions made by the FSIN Justice Commission, and with support from the Chiefs Legislative Assembly, the First Nation are following two tracks. First, we are looking at situations where we can have an immediate impact. This is a program-oriented track that fits within the current justice system so we can assist our people who are in conflict with the law, whether they are on our reserves or in urban centres. This track means developing and delivering programs within the current justice system such as a court worker program. That program was killed in Saskatchewan in 1986, We will bring that program back with the unqualified support of our own people, the police services, the court system and correction.
Another example within the immediate impact track would be the agreement with the Royal Canadian Mounted Police for contracted service, between the Bands and the local RCMP detachments over everything from protocol disagreements to inability to enforce band bylaws to slow response time to emergencies to when police would patrol our communities. For instance the RCMP chose to patrol on Wednesday and Tuesday instead of Friday and Saturday when most of the action was happening in the community. We are now setting he stage where First Nations can negotiate
The situations with Corrections is similar. We need more cross-cultural training, employment equity and a better way of dealing with prisoner complaints. We are attempting to set up alternative corrections facilities with far more rehabilitation programs built in to it that is available under the current system.
In the last six weeks I visited the Prince Albert Correctional Centre and their cultural survival group as well as the Indian & Metis Spiritual Brotherhood in Regina and asked them to give me their response to the Recommendations of the Treaty Indian Justice Review Committee Report. There are many recommendations in there regarding improving the corrections system order to meet the rehabilitation needs of prisoners an I have to have the feedback from the prisoners themselves as to whether these recommendations are being followed and if they are valuable.
We are also working on this with the court system itself such as sentencing circles and alternative sentencing. There seems to be a new sensitivity by many Judges that the court system that they now operate clearly failing aboriginal people in the is province and they are prepared to work with us in a constructive and coordinated manner in order to ensure a more fair and equitable treatment of First Nations citizens the provincial and federal court system.
The second track is long term strategy of entering into larger longer term self-government initiative surrounding justice. For example, we are looking at the development of Indian law, which would apply in our territories and would be recognized by federal and provincial jurisdiction. There are commissions within the FSIN such as the Health and Social Development Commission, Education Commission, Hunting, Fishing and Trapping Commission, Indian Government commission, Housing Commission and the Economic Development Commission - That are developing framework legislation that we can implement in our communities. Such framework legislation would allow individual communities and Tribal Councils to fit their unique circumstances under the general umbrella of the framework in a flexible an community oriented process.
As we develop our laws, we cannot depend upon the RCMP to enforce them nor upon the provincial or federal courts to interpret them. We will have our own First Nations Controlled police services across the province as well as our own Tribal Court System which will be recognized by provincial and federal court system and our own system of rehabilitation and sanctions.
There is a real sensitivity in our communities to traditional law and this interaction with contemporary law. While there are traditional values and principles that must be upheld, we fully recognize that we are living in the electronic age. We must be able to reach a combination of traditional and contemporary values and find ways of ensuring that these values can be supported under a First Nations controlled justice system.
One of the issues that we must come to grips with as we develop our First Nations controlled justice system is the dual reality of on reserve and off reserve citizens.
It is the FSIN's position that simply because a Treaty First Nation citizens leave a First Nations community does not mean that he ceases to exist as a member of that community. In fact he still maintains the citizenship in that community and still maintains all treaty rights. He will also remain eligible for services from our communities. This particular situation raises the question of how we provide services for our people who live in another government's jurisdiction. This is one of the tough questions we have to work out and will no doubt have an impact on how we develop our First Nations justice systems.
The long term development of a First Nations controlled justice system must keep pace with the other developments occurring with our territories. A good example is the recent Treaty Land Entitlement Agreement whereby Treaty Indians in this province are probably in charge of one of the largest mega-projects by virtue of a $500 million treaty land entitlement project. This agreement will double the land base of our people and make significant changes to certain areas of the province. As the economy and as the land base increase we will have to have additional services in the areas of legislation, protection and enforcement services.
The FSIN Justice Commission is working diligently to assist the communities to develop the capability to adjudicate disputes, to enforce Band By-laws, and getting use to the idea once again, after 120-years of government from the outside, of controlling our own communities. If you refer to the paper" Introduction of Justice Models", written by a friend-and colleague Jacob Tootoosis, under my direction and editorial guidance, you will see coverage of such topics that we have talked about such as treaty rights and Indian Act legislation. There is also information about a court docket in Northern Saskatchewan. Take a look at these statistics and come to your own conclusions. There were questions about short-term legislative initiative that we can cooperatively work together with From our perspective, a particular importance is the development of reciprocal legislation whereby First Nations legislation will be immediately recognized by federal and provincial legislation. The time when federal and provincial governments can legislate unilaterally on issues affecting aboriginal people is past, thanks to Supreme Court decisions such as Sparrow and Noriweijek. In order to give everything legal effect there has to be reciprocal legislation from all sides. Our paper also talks about a Police Services Act, a Justice Administration Act and a Rehabilitation Act. Appendix A of that paper also has a strategic plan which I think outlines some of the more pressing issues that we have to try and develop.
Once again I stress our two track approach: Immediate Impact issues such as improvement of the corrections system, policing, existing court systems and existing support systems but also the long term goal of developing a First Nations controlled justice system that will include laws will include Tribal Law, Tribal Police Services, Tribal Courts, and our own tribally sanctioned systems of punishment and rehabilitation.
Positive things are happening. The chiefs of Police in Prince Albert, Saskatoon and Regina have been very cooperative. Six Aboriginal Police Officers have just been hired in Regina. There is a long way to go, but that's a start. Some good work is being done in corrections. The RCMP from the Commissioner on down have been very supportive, though we have some problems with the oldline Field Officers and Sergeants who are somewhat entrenched in their ways. A system of First Nations Justices of the Peace is under active consideration as well as various activities, which are being used to sensitize present court judges and other civil servants in the area of Corrections.
We requested though the civil service of the provincial and federal government, financial resources and expertise in the area of policy development. We need knowledgeable people to set up the apparatus to govern First nations on both a local and regional scale. Individual First Nations will have their own ways of doing things but to make self-government work on a regional and national basis, we need experts on public administration who can work under our direction and make the connection between ourselves and other governments. I think that the idea of secondment of people from other levels of government is going to be accepted.
The Tribal Councils and the First Nations are actively pursuing, at their own speed, various initiatives in the areas of Justice development. For instance the Meadow Lake Tribal Council is actively developing a justice system with their First Nations as part of their overall community base self-government project.
The Onion Lake First Nation are taking the initiative and have developed a community justice committee which provides alternative to both charging by police and alternatives to sentencing in corrections. Cooperation between all levels of government will benefit not only the Treaty Indian people by all sector of this province and this nation.
I close by referring to Mary Ellen Turpel's statements when she said we have to start taking responsibility for ourselves. The time has come when Indian people can become leaders of organizations or of our communities simply by bashing federal of provincial government policy or people or by reciting historical wrongs. We must be able to come up with solid, logically planned processes for development on our communities, and ways and means of handling the issues in all area - particularly in such complex and important areas as the justice system and self-government.