Aboriginal Courts

“with particular attention to the circumstances of

Aboriginal offenders and victims”

http://www.danielnpaul.com/lotm.html

•Colonial consequences•Systemic discrimination & assimilation

•Contemporary “circumstances”•Challenges and Potentials of Gladue and Section 718.2(e)

•Aboriginal “courts”

•Denial of cultural sophistication pre contact

•Denial of Aboriginal rights and title•Cultural disruption and distortion•Erosion of gender & generational logic•Coerced conversion to Christianity•Forced relocation•Exclusion

•Identity & Membership •Restricted Mobility•Removed from the Land•Diminished Food security•Interrupted Cultural safety•Outlawed Ceremony •Eroded Knowledge systems•Erased Life & Liberty

•Colonialism “Law as Cutting Edge”•Criminalization of cultural practices

•Legislative restrictions on rights and freedoms [Indian Act]

•Residential Schools•Racial Profiling•Systemic Racism & Discrimination•Failure to uphold Treaties

•Multiple jeopardy•Denied identity & status•Bill C- 31 backlash•Bureaucracy•Conflicts over reintegration•Very few exit options •Increasing rates of incarceration

•They are in the way of economic prosperity

•They are stranded between 2 worlds•Focus on corruption and nepotism•Integration = prosperity •Assimilation is the low cost solution

•Frozen rights theory•Concept of tradition

•Adoption of western technologies, education,literacy,Christianity,urbanization all evidence of assimilation

•Colonization is over•Not responsible for the past•They have been ‘given enough’•Problems prove they should be just like ‘us’

•Saying sorry is enough•Aboriginal peoples do not have sovereignty

•Integration – [denies Indigenous differences]

•Equal access•Equal treatment•No race based policy [resource use]•Urbanization offers more opportunities – paternalistic view of reserves as traditional

•There is no racism or discrimination in Canada

Consequences

• Lower life expectancy• High rates of illness• Family & community violence • Substance misuse• Inadequate educational opportunities• Inadequate housing• Water and sanitation systems problems• High unemployment & welfare dependency• Over and under representation in the justice system

•INCREASED SURVEILLANCE•DENIED BAIL•MORE PRE-TRIAL DETENTION•MULTIPLE CHARGES•LESS TIME WITH LAWYERS•TWICE AS LIKELY TO INCARCERATE

•MORE LIKELY TO PLEAD GUILTY ‘to get it over with’

The People that you Meet

• Experienced racism• Witnessed violence (normalized)• Foster care (40% +)• Mental health issues (undiagnosed, FASD)

• No social work involvement• Addictions (60 – 95% police calls)• Prior convictions• Under employed, minimal education, few prospects

Challenges to CJS

• Transportation & communication problems• Intimately knows people who have committed suicide, or died in tragic accidents

• Language (increasing)• May use ceremony • Kinship networks and feuds• May value or deny cultural identity• May want to go to jail to avoid the chaos

• Unable to pay fines

Consequences

• Normalization of violence• Focus on day to day survival• Accumulative and intergenerational trauma

• Ontological conflicts• Control of membership / decision making removed

• Isolation and resistance to assimilation

• Denial of Aboriginal rights

•Problems of access and choice•Problems of trust and fear•Language barriers and silencing•Culturally inappropriate responses

•Lack of empowerment•Resource shortfalls•Internalization of colonialism•Us versus Them

Victims and Offenders

• May not be aware of the alternatives available

• Legacies of colonization are innate• Likely cannot articulate the systemic factors influencing their lives

• Living in survival mode• See the justice system as another form of oppression / discrimination

• Perform acts of resistance• Demonstrate remorse in different ways

•Population expansion•Constitutional recognition s. 35•Supreme Court Decisions •Nation building exercises•Assertions of sovereignty•Responsibility of rights discourses•Treaty Implementation and Land Claims

•Duty to Consult

Marshall Marshall RecommendationsRecommendations

•Native Criminal CourtNative Criminal Court•Community Justice CommitteesCommunity Justice Committees•ProbationProbation•Incarceration programsIncarceration programs•Aftercare / ReintegrationAftercare / Reintegration•TranslatorsTranslators

Success Requires

• Community design and ownership• Sustainable mobilization • Sufficient resources to make choices available

• Culturally appropriate & Comprehensive programs

• Interagency• Access to justice, collaboration• Reinvigoration of traditional roles for contemporary society

•10th anniversary•Gladue reports include Aboriginal voices•Involves sharing•Reveal the consequences of systemic issues

•RCAP as a guide•Adds cultural context to the justice system

•Identifies culturally specific and appropriate services

•Opportunities for healing

Obligations of Marshall, Gladue, & RCAP

• To challenge systemic discrimination• To enhance cultural competency of wider society

• To enhance Aboriginal cultural capacity• To recognize and affirm Aboriginal rights

• To have meaningful remedies• For Aboriginal peoples to experience justice

• Legitimize Aboriginal identity• Apiksiktuaqn

1.Recognition of Mi’kmaq rights & fiduciary obligations of the Crown;

2.Expansion and integration of current programs: Mi’kmaq Legal Support Network, Mi’kmaq Family Healing Programs, Mi’kmaq Victim Services;

3.Creation of culturally comprehensive strategies involving: education, health, justice, addictions, employment and political institutions.