2005 International Conference on Special Needs Offenders

Opening Remarks for the September 13, 2005 Plenary Session: “Indigenous Knowledge and Notions of Right and Wrong”

By Elizabeth Sanderson, Assistant Deputy Attorney General
Aboriginal Affairs Portfolio, Justice Canada

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Good morning everyone, it is a pleasure to be with you this morning to share views and to learn from you.

This morning, we will focus on indigenous knowledge. This is an area in which the federal government is investing, particularly as it relates to the special needs of aboriginal offenders and the evolution of the Canadian justice system.

When Irwin Cotler was sworn in as minister of Justice in December 2003, he shared with us his life's credo, learned from his father, that he would be guided by one overarching principle - the pursuit of justice - and within that, the promotion and protection of equality. As minister of Justice, he has frequently commented that he has begun to appreciate another of his father's teachings - that the pursuit of justice requires having a sense of injustice - that you have to feel injustice in order to advance the cause of justice.

His work - our work - on the federal aboriginal agenda has certainly anchored these teachings, both for the Minister and for me. His views on inclusiveness and a real sense of justice permeate much of the work of the federal government. Both he and I are committed to finding common ground on justice between the federal government and aboriginal people.

His vision is a justice system built on a renewed relationship based on seven “Rs” - recognition, respect, redress, responsiveness, representation, reconciliation and renewal. These themes come up repeatedly on aboriginal issues.

International Arena

We find these “Rs” in the international arena where efforts are directed at considering ways to reconcile indigenous legal traditions within domestic and international legal regimes. These discussions are taking place in fora such as the United Nations, the Organization of American States, and the World Intellectual Property Organization. They surface in issues as diverse as human rights, trade, the environment and intellectual property.

On the face of it, we are seeking practical ways to enable indigenous peoples to control access to and use of their traditional knowledge and to make governance decisions affecting their day-to-day lives in their communities. However, on a deeper, more philosophical level, we are confronted with the values that permeate these traditions. We are trying to find ways in which values - differing and similar - can work side by side or be reconciled within the international regimes currently in place.

We are discussing these issues in relation to international regimes, but are monitoring the work underway in other countries and domestically on these issues. In Canada, for instance, the Department of Justice and the Law Reform Commission are considering aboriginal legal traditions in the context of the Canadian legal regime. The Law Commission plans to submit a report to parliament on indigenous legal traditions next year.

Our presence at these important international discussions provides me with an opportunity to participate directly in Canada’s efforts to meet the challenge of reconciling indigenous laws and notions of right and wrong within the Canadian legal system and in the context of our international legal obligations.

Domestic Realm

Closer to home, the story of Canada’s aboriginal peoples is complex and compelling. Given the theme of this conference, you might want to know why aboriginal offenders are included in the definition of special needs offenders?

We know that during their childhood, more than half of aboriginal offenders have been exposed to early drug and alcohol abuse. Behavioral problems are common. We know that they experienced physical and/or sexual abuse, that they lived in poverty, experienced parental absence or neglect and have suffered the legacy of loss of culture and traditional values.

Moreover, residential schools significantly disrupted traditional family relationships. Many of the children who attended these schools experienced psychological, sexual and physical abuse while in the care of these schools. And many were isolated from their families and communities and did not return home until they were in their teens. In the absence of family and community units there was little or no opportunity for nurturing and natural bonding, essential elements of parenting.

Given these bleak social circumstances, it is not surprising that these offenders continue a sad legacy. The statistics tell us that their most common violent offence is assault. Property crime, such as break and enter, and theft are often the most numerous offenses. The statistics surrounding the incarceration of aboriginal offenders in Canada are troubling.

Although aboriginal people make up about 3.3% of the Canadian population, they account for 18% of the adult sentenced admissions and 22% of youth admissions to custody. They have an arrest rate nearly double the national average. They are more likely to be victims, are victimized more frequently and are more likely to be victims of violent crimes. Moreover, the over-representation of aboriginal people is expected to rise dramatically in the next decade due to the high rate of aboriginal youth population growth.

Taken together, demographic and socio-economic evidence strongly supports the continuing need to find more culturally appropriate remedies for long-term sustainable impact. How we reconcile with aboriginal people is part of the federal government’s approach to aboriginal justice. It’s about doing the right thing. And unless we address the past with aboriginal people, we don’t stand a chance of making any progress in the future.

As a federal government, we have heard aboriginal people and we are taking remedial action across the board. We have a new environment in which to work, now. We have a very committed Minister, we have the roundtable process, begun last year, that has gained unforeseen momentum, we have a Prime Minister who has made it abundantly clear that he wants to see improvements in the state of aboriginal affairs, now.

Aboriginal justice strategy

The Aboriginal Justice Strategy, for example, supports community-based programs with restorative approaches that are proving an effective solution in resolving many types of criminal and non-criminal matters compared to the mainstream justice system. It is holistic in approach and focuses on healing relationships and restoring harmony in the community. It can include, for example, healing plans that involve elders and prayers, sweat lodges and vision quests. About one-third of Canada’s aboriginal communities are served by these programs, and other resources, including victim services. These programs are making an important difference to the individuals and communities served by them.

Aboriginal court work program

Once in the criminal justice system, however, we have taken steps to recognize the special needs of the aboriginal population. Aboriginal groups established the first courtworker programs in the early 1960’s to provide assistance, other than legal advice, to aboriginal people appearing in court. The program has evolved to meet the changing needs of the aboriginal people it serves.

The courtworker’s responsibilities cover a wide spectrum. For those entering the criminal justice system, the courtworker assists aboriginal people in understanding their responsibilities and their rights under the law. They explain the nature of the charges against them, the functioning of the criminal justice system and, provide advice as to services available, such as legal aid or counseling.

For those in the justice system, the courtworker enhances the awareness and appreciation of the values, customs, languages and socio-economic conditions of aboriginal people. They also respond to problems and special needs caused by communication barriers which often exist between aboriginal people and the administrators of the criminal justice system.

Youth Justice

On the subject of youth, Canada’s incarceration rates are higher than in other countries such as the United States and England. However, through the youth justice renewal initiative, aboriginal people and communities are being encouraged to get involved in youth justice programming and in local aboriginal youth justice committees.

These committees are involved in areas such as giving advice to police and courts on appropriate extra-judicial measures, alternatives to pre-trial detention, reintegration planning and support for victims of offences. They provide aboriginal youth in trouble with an opportunity to repair the harm that they have caused and encouragement to lead productive lives.

Traditional Knowledge

On the subject of aboriginal customary law, we are in early days yet of coming to grips with its implications for the Canadian legal system. However, its importance as a distinct and founding body of Canadian law has not been lost on us. It is part of a larger federal effort to recognize the importance of aboriginal perspectives in understanding and interpreting the law, particularly as it relates to aboriginal and treaty rights, as well as ensuring aboriginal participation in these Canadian institutions.

Indigenous Legal Traditions

The recognition of indigenous legal traditions comes in many ways. For example, last year, the federal government and the United Church of Canada hosted a potlatch ceremony at the Gitanmaxx Community Hall, in Hazelton, British Columbia, to formally and publicly apologize to the Gitxsan for the treatment of Gitxsan children at Indian Residential Schools. This process, which focused on restitution, was deemed to be consistent with Gitxsan laws and traditions.

As well, last fall, my Minister met with a group of Inuit law students from Nunavut, who reminded him that they come “with a past, with a history, with a heritage, with a language, a culture, an identity, with an aboriginal legal tradition, and that they have been dislocated from that past and dispossessed of their history and their heritage, their language, culture, identity, and aboriginal legal tradition.”

Further to that meeting, the Minister has signaled that Canada should build on the unique advantage it has of an existing bi-jural legal system. It should have an indigenous legal tradition as well, and perhaps be a world leader in mainstreaming such indigenous legal traditions. Successfully addressing this challenge, he has said, would mean that we can make an historic contribution - not only domestically, but internationally.

In response, the department is now studying federal investments in understanding indigenous legal traditions. The results of this work will assist in identifying ways to support and integrate these traditions into the federal government’s relationship with aboriginal people.

In addition to this work, the Minister is anxious to increase the number of aboriginal people working in justice professions. He is engaged and keen to see all this work to fruition.

Akitsiraq Law Program

The department is also actively supporting opportunities to include aboriginal people within the ranks of the justice system. It worked with the Government of Nunavut, the University of Victoria and the Nunavut Arctic College to create a Bachelor of Laws Program for Inuit students. This program integrated Inuit legal traditions within a Common Law Program. The first cohort of Inuit students graduated just this summer.

The Akitsiraq Law Program takes into account Inuit traditions and the northern environment as well as northern customs and practices. For instance, elders were invited into the class to discuss Inuit ways of knowing and the relationship between the underlying values supporting these notions and the linkages with the common law.

Still on the theme of academe, we are currently cooperating with the Faculty of Law at McGill University in an initiative that aims to integrate indigenous legal traditions into the Curriculum of Law at McGill University. This initiative builds on the Akitsiraq law program’s success of integrating Inuit and western legal concepts into a legal studies program. The larger vision is to integrate indigenous legal traditions into Canada’s law school programs.

The sum of all this work constitutes a new way of bringing traditional understanding and concepts of justice into the mainstream Canadian legal system. It is another way for Canada’s legal environment to be enriched by the contribution of the country’s aboriginal people.

Conclusion

As a Department of Justice official, I have begun to scratch the surface of the aboriginal realm and I am increasingly drawn in. One thing that continues to resonate for me is that this is not a one-way challenge. While states, and justice officials are considering how to deal with indigenous legal traditions in the context of domestic and international law, so too are indigenous people. They are considering the plethora of international and domestic legal principles to determine whether their customary legal traditions need to be revised in any way to better reflect the principles enshrined in, for example, the charter of rights and freedoms.

In addition, we need to ensure the positive presence of aboriginal people in the Canadian justice system. This work is important. My team and I are committed to reflecting the vision of our Minister and aboriginal people’s aspirations for justice.

We have heard aboriginal peoples’ point of view on how to address not only the incarceration issues but meaningful preventative measures and reconciliatory processes. Now it is time to build a truly meaningful justice system that speaks to all Canadians, that strengthens new and existing partnerships and enhances pride in Canada and in being Canadian.

And that is why we are all here today and will be hearing more about. To this end, I am delighted and very proud to introduce our main speaker for this session, Professor Leroy Little Bear.

Professor Little Bear is a member of the Small Robes Band of the Blood Indian Tribe of the Blackfoot Confederacy. He was born and raised on the Blood Indian Reserve. He graduated from St. Mary’s school on the reserve and then from the University of Lethbridge in Alberta.

In 1975 he graduated from the College of Law, University of Utah, Salt Lake City, Utah with a Juris Doctor Degree. He was professor in the Native American Studies Department at the University of Lethbridge for twenty-one years.

From January 1998 to June 1999, Professor Little bear was the Director of the Harvard University Native American Program. He has served in a consultant capacity to many Indian Tribes, including the Assembly of First Nations and served on many different committees, commissions, and boards. He is known to have been instrumental in building bridges between people of many cultures and is a much respected and admired teacher and mentor.

His research interests have led him to the exploration of North American Indian science and western physics as well as in learning more about Blackfoot knowledge through songs, stories and landscape.

I have no doubt that he will enlighten us as we continue to explore indigenous knowledge and a holistic approach to justice.

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