Reports
Aboriginal Justice Implementation Commission
Final Report
Report of the Aboriginal Justice Inquiry of Manitoba
Chapter Two
Recognition and Reconciliation
The Aboriginal Justice Inquiry and the Aboriginal Justice Implementation Commission both focus on the justice system as it operates in Manitoba in relation to Aboriginal people. The majority of recommendations in the AJI report and in this report focus on that system and its operations. These recommendations seek to address the overrepresentation of Aboriginal people as offenders in the criminal justice system, and as victims of crime. Both Commissions were established in response to a public recognition that this overrepresentation constitutes a fundamental injustice. Both reports stress restorative approaches that seek to bring communities that are out of balance back into balance.
There is, however, a societal imbalance that arises from a continuing sense of grievance and injustice among Aboriginal people. The AJI recognized the need for recognition and reconciliation. Their report stated that the frustration, anger, and conflict resulting from weak and inadequate government responses to Aboriginal issues "has cast a dark cloud over the relationship between Aboriginal people and government, not only in Manitoba but throughout Canada. ... rectifying the historic injustices, while extending proper respect and substance to Aboriginal and treaty rights, is vital for the well-being of all Canadians. Clearly, restoring honour to the Crown, while rebuilding Aboriginal communities, is needed." (AJI, Volume I, page 119)
In the same vein, the RCAP urged governments and the Canadian people to undertake "a comprehensive and unflinching assessment of the unstable foundations of the relationship" between Aboriginal people and other Canadians, arguing that "we can no longer afford merely to 'manage' the continuing crisis in the relationship by mediating potential areas of conflict while leaving unaltered the foundation on which that conflict inevitably arises." (RCAP, Volume I, page 603) To establish the proper balance, the RCAP proposed four principles in its vision of a new relationship: mutual recognition, mutual respect, sharing, and mutual responsibility. (RCAP, Volume I, page 677)
In present circumstances, the AJIC has attempted to contribute to the dialogue on recognition and reconciliation by providing the Government of Manitoba with a series of options identified in a discussion paper posted on the AJIC website. Recognition, Reconciliation and Healing, by John Giokas, discusses the uses to which the term "recognition" has been put in constitutional, legal, and public policy statements in Canada in recent years, and then outlines a series of approaches a government could take to these issues.
The final part of the paper applies the meanings associated with "recognition" through contemporary examples drawn from international and domestic recognition and reconciliation actions and statements. Eight illustrative ways in which the Manitoba government might recognize the Aboriginal people in Manitoba, and their past and present contributions to Manitoba, are discussed. The paper notes that recognition acts or statements by a government may accomplish a variety of purposes with differing legal implications, depending on the purpose for the act or statement.
These eight potential means of affording recognition to Aboriginal people in Manitoba are:
government announcement of publicly funded historical projects to focus on the past and present contributions of Aboriginal people to Manitoba
meetings between government and Aboriginal people to discuss possible courses of action to heal the relationship, reconcile opposing views of history, etc.
announcement of government-sponsored, reconciliation-type actions, and invitation to Aboriginal people to participate
government statement in the Manitoba Legislature
government resolution in the Manitoba Legislature
cabinet-approved statement of Manitoba government policy
protocol with Aboriginal organizations
legislation, either substantive or procedural
Part of the premise for the preparation of this paper was that before Aboriginal and non-Aboriginal people can move forward to live in harmony, relations must be reconciled and healed. Some form of recognition of the historical relations between Aboriginal and non-Aboriginal people, it was thought, might contribute to this reconciling and healing.
None of this can be done without the participation of Aboriginal people. Attempts to do so are doomed to failure and criticism, as demonstrated by the experiences of the federal government in the release of its Gathering Strength policy paper in January 1998, and of the Quebec government. A paper by Paul Joffe, which examines the Quebec initiative, is available on the AJIC website.
The next steps on a path to reconciliation and healing will require improved and constant communication, not only between Aboriginal people and the Manitoba government, but also with the federal government, and perhaps business and other groups. One of the most effective means to achieve this could be through the discussions of a Roundtable on Aboriginal Issues, or through the agency of an Aboriginal Justice Commission. Both concepts are discussed and recommended in the final section of this report.
The Aboriginal Justice Implementation Commission recommends that:
2.1
The Government of Manitoba place the issue of recognition and reconciliation policies and actions on the agenda of a new Roundtable on Aboriginal Issues, Aboriginal Justice Commission, or such other implementation institution that may be agreed upon between the Province and representatives of the Aboriginal peoples in Manitoba, including in particular the Assembly of Manitoba Chiefs and the Manitoba Metis Federation.
Aboriginal and Treaty Rights
In Chapter Five of its report, the AJI discussed Aboriginal and treaty rights, and made the following recommendations pertaining to provincial policy and action.
The provincial government develop a policy that respects the desire of Aboriginal people to retain a role in the management and conservation of their traditional territory.
The Province of Manitoba recognize the harvesting of wild rice as an Aboriginal right.
The Province, if it wishes to exercise any influence over the regulation of this resource off-reserves, negotiate co-management agreements with the Aboriginal peoples concerned.
The Province of Manitoba recognize Aboriginal and treaty rights to harvest timber resources.
The Province ensure that the exercise of wildlife harvesting rights is not infringed by timber management practices.
Existing Aboriginal rights to water and beds of waters be recognized by the federal and provincial governments.
The provincial government pursue the development of co-management agreements with the First Nations and Métis peoples regarding timber resources off-reserve in the Aboriginal people's traditional territory.
In keeping with provincial fiduciary obligations and to assist in the economic advancement of First Nations, the Province of Manitoba formally renounce its half interest in minerals within Indian reserves.
First Nations have the right to use and control totally all mines and minerals on reserve lands and to receive 100% of the benefits and income therefrom.
The Interpretation Acts of Manitoba and Canada be amended to provide that all legislation be interpreted subject to Aboriginal and treaty rights.
The government of Manitoba invite the Assembly of Manitoba Chiefs and the Manitoba Metis Federation to designate representatives to work with senior provincial officials to review all relevant legislation that may conflict with Aboriginal and treaty rights. This review should identify specific areas of conflict and propose concrete solutions and statutory amendments. The Manitoba Aboriginal Justice Commission that we propose should be utilized to assist in this process if any of the parties wish.
The federal and provincial governments establish a process to review all proposed legislation for its potential effect on the rights of Aboriginal peoples.
The Aboriginal Justice Implementation Commission recommended that:
2.2
The Interpretation Act of Manitoba be amended to provide that all legislation be interpreted subject to Aboriginal and treaty rights.
2.3
The Government of Manitoba formally renounce its half interest in minerals within Indian reserves.
The Manitoba government has accepted and implemented both these recommendations. It has also worked with Aboriginal organizations and communities to achieve partial implementation of other recommendations.
Aboriginal Justice Systems
A central recommendation of the AJI was the establishment of an Aboriginal justice system. Specifically the AJI stated that:
It is wrong, in our view, simply to maintain the status quo on the assumption that eventually Aboriginal people will learn to accept the justice system as it presently exists. It is wrong to assume that if only Aboriginal people would accept the justice system, then there would be no more problems. It is wrong to assume that changes to the existing system will enable it to provide fully adequate services to Aboriginal people. To think in this manner is to ignore the impact of the past human experience of Aboriginal people. Their self-determination has been denied and suppressed, social disorganization has been the consequence, and they are unable to accept the "white man's solution" any longer.
The reality is that approaches taken by a non-Aboriginal justice system in Aboriginal communities will not address the social needs, development, culture, or the right to self-determination of those communities. A court system that is not seen as an institution that belongs to them, and that is unable to adapt to their indigenous concepts and mechanisms of justice, will not work in Aboriginal communities.
An important principle for change and for bringing about changes in Aboriginal communities is that Aboriginal people must be seen as having control. This principle, we discern, is gaining greater and greater acceptance in Canadian society. (AJI, Volume I, page 264)
As a result, the AJI made the following recommendations.
The federal and provincial governments recognize the right of Aboriginal people to establish their own justice systems as part of their inherent right to self-government.
The federal and provincial governments assist Aboriginal people in the establishment of Aboriginal justice systems in their communities in a manner that best conforms to the traditions, cultures and wishes of those communities, and the rights of their people.
Federal, provincial and Aboriginal First Nations governments commit themselves to the establishment of tribal courts in the near future as a first step toward the establishment of a fully functioning, Aboriginally controlled justice system which includes (but need not necessarily be limited to):
- A policing service.
- A prosecution branch.
- A legal aid system.
- A court system that includes:
- a youth court system;
- a family court system;
- a criminal court system;
- a civil court system;
- an appellate court system.
A probation service including a system of monitoring community service orders.
A mediation/counselling service.
A fine collection and maintenance enforcement system.
A community-based correctional system.
A parole system.
The federal and provincial governments begin the process of establishing Aboriginal justice systems by enacting appropriate legislation.
At the same time as legislation to begin the process of establishing Aboriginal justice systems is enacted, the federal and provincial governments acknowledge, by resolution of their respective legislative bodies, that Aboriginal justice systems must be protected constitutionally from federal and provincial legislative incursions and that such systems will ultimately be recognized as an aspect of the right of Aboriginal people to self-government and will not be dependent solely upon federal or provincial legislation for their existence.
Aboriginal governments enact their own constitutions setting out, among other things, the principle of the separation of the judicial from the executive and legislative arms of each Aboriginal government so as to protect Aboriginal justice systems from interference and to provide security for their independence.
As is apparent, the AJI recognized that this issue would require consultation between the federal and provincial governments and Aboriginal people, and legislative action by both governments of Manitoba and Canada. This Commission recognizes that the issue of Aboriginal justice systems must be placed on the agenda of the Aboriginal Justice Commission or such other institution as may be set up to implement the recommendations of the AJI. (Such bodies are discussed in the final chapter of this report.)
The rest of this chapter briefly identifies the arguments and views of the AJI, the RCAP, the Manitoba Framework Agreement, and the Supreme Court of Canada on Aboriginal justice systems.
The AJI arguments
The Commission proposed a range of possible legal bases for establishing an Aboriginal justice system (AJI, Volume I, page 311), and concluded that the approach that appeared to provide "the greatest potential for the successful establishment of Aboriginal justice systems for both (sic) First Nations, Métis and Inuit peoples" was one that
involves a process of trilateral negotiations, leading to an agreement that contains within it an express provision that the right to establish and maintain Aboriginal justice systems is an "existing treaty or Aboriginal right" within the meaning of section 35 of the Constitution Act 1982. (AJI, Volume I, page 313)
(See pages 151-161 of Volume I of the Aboriginal Justice Inquiry report for the discussion on section 35 and the relevant law of the Constitution.)
Royal Commission on Aboriginal Peoples (RCAP)
The RCAP devoted a special report to the subject of Aboriginal people and criminal justice in Canada. In Bridging the Cultural Divide, the RCAP recommended that;
federal, provincial and territorial governments recognize the right of Aboriginal nations to establish and administer their own systems of justice pursuant to their inherent right of self-government, including the power to make laws, within the Aboriginal nation's territory. (Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide, page 224)
The report contained a range of specific recommendations on the establishment Aboriginal justice systems.
The explanation for the RCAP's recommendation to establish Aboriginal justice systems was that "at the core of a new relationship between Aboriginal and non-Aboriginal people must be the recognition of Aboriginal peoples' right of self-government. It is our conclusion that this right must encompass the authority to establish Aboriginal justice systems." (Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide, page 54)
The RCAP report then reviewed various opinions and reports, including that of the AJI, which had drawn the same conclusion. (Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide, pages 54-56) In its final report, RCAP presented a detailed argument on the common law right of Aboriginal self-government, which is protected by the Constitution of Canada (RCAP, Volume II, pages 184-244).
Manitoba Framework Agreement, 1994
In the above-mentioned discussion, RCAP noted that "on December 7, 1994, a framework agreement was concluded between First Nations communities in Manitoba, represented by the Assembly of Manitoba Chiefs, and the Queen, represented by the Minister of Indian Affairs. The thrust of the agreement is to dismantle the operations of the Department of Indian Affairs and Northern Development (DIAND) in Manitoba, restore jurisdiction to First Nations peoples, and recognize First Nations governments. The agreement sets out a number of principles to guide this process, including the following:
5.2 The inherent right of self-government, First Nations' Treaty rights and Aboriginal rights will form the basis for the relationships which will be developed as a result of the process;
5.3 In this process, the Treaty rights of First Nations will be given an interpretation, to be agreed upon by Canada and First Nations, in contemporary terms while giving full recognition to their original spirit and intent;
5.4 First Nations governments in Manitoba and their powers will be consistent with Section 35 of the Constitution Act 1982." (RCAP, Volume II, page 205)
Recognition of Aboriginal Self-Government in Federal Policy, 1995
In 1995, the federal government issued a policy guide entitled Aboriginal Self-Government, which sets out the government's approach to implementing the inherent right of self-government:
The Government of Canada recognizes the inherent right of self-government as an existing right under section 35 of the Constitution Act 1982. It recognizes, as well, that the inherent right may find expression in treaties, in the context of the Crown's relationship with treaty First Nations. Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and resources." (Aboriginal Self-Government)
The policy guide acknowledges that the inherent right of self-government may be enforceable in the courts. However, it affirms a strong preference for negotiations over litigation as the most practical method to implement the inherent right.
Supreme Court of Canada
In the same vein, the Supreme Court of Canada has emphasized the court's strong endorsement of negotiations over litigation.
The Aboriginal Justice Implementation Commission recommends that:
2.4
The Government of Manitoba place the issue of the establishment of an Aboriginal Justice System on the agenda of the Aboriginal Justice Commission or such other institution as may be set up to implement the recommendations of the Aboriginal Justice Inquiry.
Manitoba Government