Hey there, time traveller! This article was published 13/9/2013 (2448 days ago), so information in it may no longer be current.
"[T]he relationship between Aboriginal people and the rest of society must be transformed fundamentally. This transformation must be based on justice in its broadest sense. It must recognize that social and economic inequity is unacceptable and that only through a full recognition of Aboriginal rights -- including the right to self-government -- can the symptomatic problems of over-incarceration and disaffection be redressed."
-- Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People.
The first day of the inquiry began with a peace pipe and ended with table-thumping.
Ron Richard, then the young, idealistic spokesman for the Manitoba Metis Federation, used his turn at the podium to lambast judges biased against Native people, courts located far from reserves, a system based on white values at odds with aboriginal culture, and police officers whose innate bigotry prompted them to mistake the executive director of the Island Lake Tribal Council for a young car thief.
On the second day of hearings, things got even more heated. A Winnipeg man told the inquiry that aboriginal people ought to quit complaining and get jobs.
"You don't want to pay your own way," said Fred Debrecen, to boos and heckles. "You want forever to put your hands in the white man's pockets -- not one of you wants to work."
Yesterday marked 25 years since the start of the Aboriginal Justice Inquiry, which laid bare, over a painful year, the relentless failure of Manitoba's legal system to treat aboriginal people fairly.
The AJI was sparked by two deaths -- one fresh and shocking, and one shrouded in years of silence and collusion. In March of 1988, J.J. Harper, the director of the Island Lake Tribal Council, was shot by a Winnipeg police officer on Logan Avenue following a scuffle. Harper's death became emblematic of Winnipeg's racial divide.
Just three months earlier, the courts finally convicted one of four men responsible for the beating death of teenager Helen Betty Osborne in The Pas. The conviction offered little comfort to Osborne's family, who waited 16 years for justice. Osborne herself became emblematic of Manitoba's epidemic of missing and murdered aboriginal women.
The AJI dissected those two cases, and much more. Over the course of a year spent visiting towns, cities, reserves and even jails all over the province, the AJI's commissioners gathered evidence of a justice system that had "failed Manitoba's aboriginal people on a massive scale."
In their final report, judges Murray Sinclair and Alvin Hamilton crafted nearly 300 recommendations covering not only the machinery of justice but also treaty relations, child welfare and resource rights. At its core, the AJI made the case for a uniquely aboriginal justice system as a key element of self-government and reconciliation.
The AJI report was supposed to be a turning point.
There is no question it raised awareness among Manitobans about aboriginal inequality and the legacy of government policies that profoundly wounded First Nations families, communities and culture.
The AJI also offered Metis and First Nations people a rare chance to speak candidly about their experiences dealing with cops, courts and corrections. The collective weight of their stories made it clear Manitoba had a problem.
But, 25 years after the process began, there is evidence the promise of the AJI has yet to be realized.
Much of the AJI's 25-year-old descriptions of the justice system and aboriginal polices sound remarkably current, as though they come straight from last year's Idle No More movement.
Though Helen Betty Osborne's death and the silence that stymied the police investigation galvanized debate about violence against aboriginal women, since the AJI began there have been no fewer than 40 aboriginal women who have gone missing without a trace or whose murders remain unsolved. Calls for a national inquiry are only slowly gaining steam.
Meanwhile, the province is in the midst of two more headline-grabbing inquiries -- one into the emergency room death of Brian Sinclair, the other into the failure of the child welfare system to protect toddler Phoenix Sinclair. Both have, again, exposed the marginalization of many First Nations people, the failure of institutions to help and the subtle undercurrent of racism.
But, perhaps the most startling failure of the AJI is aboriginal incarceration rates. When the hearings began in Winnipeg Sept. 14, 1988, roughly half of all inmates in the province were aboriginal.
Today, the figure stands at 70 per cent.
In preparation for an interview with the Winnipeg Free Press, veteran lawyer Harvey Pollock, who represented the Harper family during the inquiry and has spent much of his career tackling aboriginal legal issues, jotted down a few notes on the AJI's legacy. At the end of his scribbles, in capital letters, he wrote, "Nothing has changed."
Justice Murray Sinclair, who was a young aboriginal provincial court judge when he was asked to be the AJI's co-commissioner, takes a longer view. He said the AJI spawned key changes in the justice system, including the Gladue principal that directs judges to take into account an Aboriginal offender's background during sentencing. And, child welfare has been devolved to aboriginal-run agencies, a significant step toward self-government that is bolstered by a new generation of well-educated aboriginal professionals.
Sinclair says it will take generations to undo the damage done by more than 100 years of destructive government policies such as residential schools, and, though the AJI report demanded swift action, Sinclair now doesn't expect to see tangible progress on some of the more sweeping recommendations in his lifetime.
For Ron Richard, the young, table-thumping Metis man who spoke during the first day of the AJI hearings, that reality is a tough sell.
"If I was to do it today, I would probably be banging on the table again because I'm not really sure that much has changed," said Richard, who now works for Manitoba Hydro and has followed justice issues keenly since the AJI. "Twenty-five-years later, the system still isn't working, not to our benefit anyway."
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"They did a great job with the Helen Betty Osborne case. It got down to the root of the problem. With J.J. Harper -- they exposed the police department for what it was, and the commission found an element of racism. They showed that it was a cover up. They showed that there were lies. It cost the chief of police his position. He had to resign. I think the report dealt very adequately with both those cases. When it came to other aspects of the inquiry, as is the case with many of these government-appointed commissions, the reports are tabled and generally not acted on. There are some parts of the AJI report upon which there's been some movement. For example, on the criminal justice side, there's Gladue. That's a product, I think, of that commission, and it is some benefit. There is circle sentencing - not being used to a great extent, but it's there and it's available for certain offenses. There's still a disproportionate number of aboriginal people in prisons. To what extent has the AJI really affected the lives of aboriginal people? On a broad level, very few recommendations have really been implemented. I don't know that aboriginal lives, particularly in the north, have changed as a result."
-- Harvey Pollock, lawyer for J.J. Harper's family during the inquiry.
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"Since 1991, we've heard a lot more -- aggressive's not the right word -- more vocal outspokenness from aboriginal leadership about the state of affairs. There have also been significant legislative changes, significant legal decisions... The population of aboriginal people has changed significantly. The population of Canada has changed significantly. In addition to that, the Royal Commission on Aboriginal Peoples was held. Oka occurred. A lot of things have occurred since the AJI report that have sparked significant movement within society. The real question is, have incarceration rates changed and have child welfare rates changed? Yes, they have. But, they've gone up. And there's reasons for that, too. Part of that is the birth rate for aboriginal people is about four to six times that of the non-aboriginal population. It's a much younger population than the Canadian population overall. In all societies, the group that is most active in terms of activity that leads to criminal offences is the under-35 population. That population is much higher in the aboriginal community. The same factors that spoke to over-incarceration in 1991 when we did our analysis -- the systemic discrimination, the lack of employment, the lack of social programs that address crime and misbehaviour, the poor educational attainment, higher suicide rates -- are still present. But I think we're also now beginning to see and understand the intergenerational implications of residential schools.
-- Justice Murray Sinclair, AJI commissioner, now chair of the Truth and Reconciliation Commission charged with uncovering the history and effects of Indian residential schools.
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One of the recommendations in the AJI was in relation to increasing recruiting and employment of Aboriginal people in the justice system, with a focus on lawyers. There are a handful of lawyers practicing criminal law who have Aboriginal backgrounds but there could be more. When you are starting out as a newly called lawyer it is very, very difficult even if you are with a firm. With respect to my experiences in the justice system, I can say that it has been fairly positive. Again, it is through my own lens and I do not doubt my clients or their family members have had negative and soul-destroying experiences as accused, witness or even victims. I can say that I have never been treated in a racist or a discriminatory manner by other lawyers, court staff or judges. If I have ever been yelled at or treated poorly it was because I was a junior and did something stupid, not because I am Aboriginal or a woman. Is the system any fairer or effective? No. We are trying, but we do not necessarily have the tools to do it. The justice system is the last resort, the absolute last kick at the can. In terms of my youth clients, the systems that are supposed to take care and support them are failing -- their family unit, community, CFS and education systems. I find that the focus then turns to the justice system to clean it up.
-- Stacey Soldier, an indigenous criminal lawyer with Bueti Wasyliw Wiebe.
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When the AJI came about 25 years ago, there was a sense of optimism in the aboriginal community, where there was a hope that positive change would come. When the AJI was announced, Manitoba was seen as the leader of progressive thinking when addressing aboriginal over-representation in the justice system. Now a mere 25 years later and having the highest per capita population of Aboriginal people in the country, we are behind the rest of the country in incorporating and valuing Aboriginal perspectives. While there have been strides of progress, there is much work left to do at incorporating the AJI recommendations.
-- Cora Morgan, executive director of Onashowewin, an aboriginal restorative justice agency.
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The report was a very thoughtful piece of work based on wide consultations and sound legal analysis. Unfortunately, the report has not been acted upon in any substantial way.
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Governments, courts and communities have only made a few relative minor changes in the broader scheme of things. Criminal justice administration remains relative isolated from the recommendations in the report.
Sadly, the situation has grown even worse in the last 25 years. While the report was produced in an atmosphere of crisis, given the failure of the criminal justice system to protect vulnerable people, we are now in a perpetual state of emergency in many Aboriginal communities.
The report's recommendation that Aboriginal peoples assume formal governmental responsibility for addressing and reducing criminal behaviour has not been encouraged by either the federal or provincial governments.
-- John Borrows, among Canada's leading scholars on indigenous legal traditions and a law professor at the University of Victoria.
"The concepts of adversarialism, accusation, confrontation, guilt, argument, criticism and retribution are alien to the Aboriginal value system, although perhaps not totally unknown to Aboriginal peoples. In the context of Aboriginal value systems, adversarialism and confrontation are antagonistic to the high value placed on harmony and the peaceful coexistence of all living beings, both human and non-human, with one another and with nature. Criticism of others is at odds with the principles of non-interference and individual autonomy and freedom. The idea that guilt and innocence can be decided on the basis of argument is incompatible with a firmly rooted belief in honesty and integrity that does not permit lying. Retribution as an end in itself, and as an aim of society, becomes a meaningless notion in a value system which requires the reconciliation of an offender with the community and restitution for victims."
-- Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People.
THE BIG IDEA -- AN ABORIGINAL JUSTICE SYSTEM
There are nearly 300 recommendations in the main AJI report, covering everything from bail hearings to outstanding land claims to how fast an officer's revolver ought to be bagged as evidence after a police shooting.
Some of the recommendations, the easy ones, have been fulfilled. The Indian Act has been amended to allow many First Nations to regain their status lost through arcane "marrying-out" rules. The Portage women's jail was closed, finally, last year. Child welfare has been devolved to aboriginal-run agencies. Civilian-lead police commissions and a special investigation unit are almost set up, 25 years after J.J. Harper was shot by police and the AJI criticized lax police oversight.
But some of the AJI's other recommendations were radical and sweeping, and the passage of time has made them no less controversial. That includes dozens of recommendations related to the creation of a separate aboriginal justice system infused with traditional cultural principals of indigenous justice. Aboriginal leaders called for such a system on the first day of the AJI hearings as a key element of self-government, and many aboriginal legal experts have since laid out why it's needed and how it could work. But progress has been almost non-existent. Here's a primer:
WHAT THE AJI RECOMMENDED:
A uniquely aboriginal system under the umbrella of the Canadian constitution, including police services, a prosecutions branch, legal aid, courts, probation services and a community-based correctional system.
Aboriginal communities should be entitled to enact their own civil and criminal codes, or to adopt federal and provincial laws. Where possible, laws, processes and punishments should be culturally-appropriate.
On Aboriginal land, aboriginal laws apply even to non-aboriginal people.
Tribal courts, like the ones in the United States, could be a first step.
In the meantime, the number of aboriginal people employed as probation officers, Crown attorneys, correctional staff, legal aid lawyers and other justice officials must be increased to represent, at least, the proportion of aboriginal people in the community. That will involve dramatically more recruitment of aboriginal police officers, law students, court staff and others.
WHAT'S HAPPENED SINCE
In the early 1990s, the Filmon government began to explore the idea of an aboriginal court system, but it fizzled.
More recently, the northern chiefs have begun to explore the idea of an aboriginal community court, though many are skeptical that the political will to create such a court -- common in other provinces -- is lacking.
The provincial government has shown little interest in an aboriginal court like the one in Toronto, let alone a wholesale justice system based on indigenous control. Aboriginal Affairs Minister Eric Robinson said the idea is not on the radar, in part because the province prefers to focus on improving the aboriginal child welfare system.
Justice Murray Sinclair acknowledges there have been few structural changes in the direction of an aboriginal-run legal system, though he says the new generation of leaders are starting to put some meat on the bone of the idea. He said the idea amounts to a profound shift in our concept of justice. "It could take generations before it's done effectively," he said.
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Updated on Saturday, September 14, 2013 at 8:56 AM CDT: adds photo