Creating an Indigenous Justice Strategy, an aspirational paper From Inuit perspectives

By Elizabeth Zarpa67 and Sarah Arngna’naaq68

Introductory remarks

When we speak about the origins and history of our culture, we do so from a perspective that is different from that often used by non-Inuit who have studied our past. For example, in our culture we do not divide the past from the present, so we do not like to use terms such as ‘prehistory.’ Our history is simply our history, and our oral histories stretch back to time immemorial. We feel that the time has come for us, as Inuit, to take more control over determining what is important and how it should be interpreted. To be of value, our history must be used to instruct our young and to inform all of us about who we are as Inuit in today's world. We do not want our history to confine us to the past.69

A large portion of Canada’s population knows very little or nothing about the history of Inuit. The legal, political, cultural and linguistic realities of Inuit make up a significant portion of this country’s fabric, yet it goes unrecognized in mainstream educational institutions.70 So, when Inuit interact with systems of power, such as the justice system, there is little to no support or cultural understanding to support them as they encounter an oppressive and punitive colonial system. The overrepresentation of Indigenous people (including Inuit) in the justice system has been extensively documented over the last several decades; the most recent finding as of this writing is from the Office of the Correctional Investigator in their 2021–2022 Annual Report.71

This aspirational paper aims to shed light on what areas of society the federal government could make a priority and how sustained funding for select initiatives might help address the overrepresentation of Inuit within Canada’s justice system. In addressing this multifaceted question, this paper looks at finding answers to what systems, organizations and agencies need to be involved in developing an Indigenous Justice Strategy. The ultimate recommendation of this paper is a shift from seeing the development and implementation of such a strategy as an end goal to instead seeing it as a first step toward developing an “Indigenous Justice Law.”72 The paper also briefly touches on how the federal government could incorporate the unique experiences of First Nations, Inuit and Métis as well as diverse groups of women, men and gender-diverse people into their legislative, program and policy initiatives.73

In answering the first portion of the question, we lay some groundwork to shed light on where Inuit in Canada fit into the landscape of Indigenous populations across the country. Next, we go into detail about the key stakeholders who play an important role in advocating for Inuit at the local, provincial, territorial and national levels. These organizations would be important stakeholders when it comes to Inuit interests across Canada and would be instrumental in the development and implementation of an Indigenous Justice Strategy that accurately reflects Inuit perspectives. These entities would also be relevant in the development of a federal Indigenous Justice Law, which we argue is something that is likely more sustainable in the long term as a solution to addressing the overrepresentation of Indigenous people within the justice system. Then we look at how the Indigenous Justice Strategy could ensure that the unique experiences of First Nations, Inuit and Métis and diverse groups of women, men and gender-diverse people could be incorporated within the legislative, program and policy initiatives of the federal government. We conclude with some recommendations for developing and implementing an Indigenous Justice Strategy from an Inuit perspective.

A brief historical context

Understanding the history of Inuit in Canada and the Circumpolar World74 is integral to understanding how systems such as Canada’s justice system affect Inuit. Inuit make up some 65,000 people, the majority of whom live throughout Inuit Nunangat.75 In Inuktitut, Inuit Nunangat means the homelands of the Inuit, which make up the land claim regions known as modern treaties that stretch from across from the Inuvialuit Settlement Region (ISR) in the Northwest Territories and Yukon, the territory of Nunavut, Nunavik in northern Québec, and Nunatsiavut in northern Labrador.

The regional governance bodies that exercise jurisdiction over their respective region and constituency are the Inuvialuit Regional Corporation (IRC) in the Western Arctic, the Government of Nunavut in the Central and Eastern Arctic, the Kativik Regional Government in northern Québec and the Nunatsiavut Government in northern Labrador. Further, the territory of Nunavut is divided into three regions and each region has its own Inuit association. Consulting with each of these regional bodies would be integral to ensuring an accurate reflection of current Inuit perspectives on an Indigenous Justice Strategy.

Additionally, Inuit are increasingly moving to southern and urban centres. These major hubs are St. John’s, Halifax, Montreal, Ottawa, Yellowknife and Edmonton. In addition to being urban hubs for the average Canadian, these cities are also known as hubs for Inuit. People who live in northern and remote areas usually don’t have access to basic universal health care,76 such as birthing centres or hospitals.77 Although each region throughout Inuit Nunangat has its own modern treaty, each region is still in the early stages of adjusting to the realities of living in a colonized, Westernized world. Inuit were nomadic prior to the introduction of forced settlement by the federal and provincial governments and other entities. Therefore, access to what are considered basic services in the south, such as a university, housing or universal health care, is still an evolving process in its early stages of development in northern regions where the majority of Inuit reside. Inuit are therefore leaving their northern communities to relocate in the south in search of more services in these urban hubs. Identifying and consulting Inuit-centred organizations in these hubs would also be important in ensuring that urban Inuit perspectives are reflected in the strategy.

Each of the four Inuit land claim agreement regions and their geography is unique in their own regard. Of the four Inuit regions, only the Nunatsiavut Government has a self-government chapter. Under Chapter 17, Part 17.31,78 of the Labrador Inuit Land Claims Agreement, the Nunatsiavut Government has jurisdiction to create an Inuit Court. There is also jurisdiction within Chapter 17 of the Labrador Inuit Land Claims Agreement for the Nunatsiavut Government to make their own Inuit Laws and for the local Inuit Community Governments of Nain, Hopedale, Makkovik, Postville and Rigolet to make their own bylaws.

In advancing the inherent right of Inuit to govern themselves with their own legal orders and protocols in areas such as justice, the federal government must acknowledge and respect the right to self-determination and the inherent right that Inuit have to govern themselves and to make laws, including laws related to criminal justice and procedure. It is also important that these regional governance bodies are funded sustainably to ensure that the Inuit regions can build the capacity to implement the Strategy and to successfully maintain it into the future.

Consultation and challenges with administering justice within Inuit communities

In creating and implementing an Indigenous Justice Strategy throughout Inuit Nunangat, it is imperative to consult with Makivik, Nunavut Tunngavik Incorporated, the Inuvialuit Regional Corporation and the Nunatsiavut Government. Each region has its own sui generis cultural and political context and its own unique issues as they pertain to justice, which apply to its population and region.

It is also relevant to consult with the national Inuit organizations such as Inuit Tapiriit Kanatami and Pauktuutit Inuit Women of Canada. Both of these organizations advocate for Inuit on a national level. More localized, front-line organizations that work with Inuit who encounter the criminal justice system should also be consulted, such as regional Friendship Centres nationally; Ananaukatiget Tumingit, which is the Regional Inuit Association in Nunatsiavut; Isuarsivik, a recovery center in Nunavik; and Saturviit Inuit Women’s Association79 in Nunavik. It is important to ensure that there is thorough consultation with as many stakeholders as possible that have a legal and political tie to Inuit, as well as with the more institutional and front-line workers who work within the justice system and with Inuit.

As discussed above, there are four significantly diverse Inuit regions. Broaden this out to Indigenous groups across Canada and there are over 50 distinct First Nations in Canada with over 600 First Nation communities and many Métis communities throughout Canada,80 each with different interests and issues that will need to be reflected in a federal Indigenous Justice Strategy. While there are certainly more general steps that can be taken to address justice issues that affect Indigenous communities, a federal Indigenous Justice Strategy will need to be flexible enough to allow for regional and community specific adaptation and implementation. This flexibility will ensure that issues specific to a given group or region can be addressed, rather than trying to find a one-size-fits-all solution.

The justice system across Canada is a complex one, with many levels of government and non-governmental entities involved and many moving parts.81 Criminal justice in Inuit Nunangat is no different, and it is administered differently in each of the four regions. From the moment someone calls for police assistance through to where an offender serves a term of imprisonment, how individuals experience their interactions with the justice system across Inuit Nunangat varies significantly. These distinctions have to be taken into consideration in the development and implementation of an Indigenous Justice Strategy, as each region will come with their own set of issues and priorities as well as their own solutions.82

In terms of accessing police services, while two of the four Inuit regions that make up Inuit Nunangat have 911 services, no part of Nunavut, Nunatsiavut or the ISR has these services. Instead, individuals have to call the local police detachment or a central dispatch service specific to the police in that region. Meanwhile, for policing specifically, the ISR, Nunavut and Nunatsiavut only have the Royal Canadian Mounted Police (RCMP).83 Nunavik, however, has a blend of Sȗreté du Québec (Québec Provincial Police), RCMP, and the Nunavik Police Service.84

Looking at access to legal services, the regions also vary. The Public Prosecution Service of Canada handles all prosecutions for the ISR and Nunavut, while the Nunavik and Nunatsiavut regions have a divide between provincial and federal prosecution services.85 Public access to defence counsel within each region align with each jurisdiction’s legal aid system: in Nunavut, for example, cases default to legal aid and are later moved out of that system if an individual does not qualify. This is a different model for accessing legal aid than what most Canadian jurisdictions use. Usually, someone would show up for their first appearance and that’s when they would begin the qualification process for legal aid representation. If an Inuk cannot afford private counsel, they would have to meet the qualification requirements of the larger legal aid system for the province or territory. That means showing that the Inuk has financial hardship and that their offence is one for which they are facing a potential term of imprisonment.

The court systems also differ across Inuit Nunangat. Nunatsiavut and Nunavik both currently fall within the classic southern Canadian court system, with a provincial and superior court division. However, as discussed, this could change in Nunatsiavut where the Labrador Inuit Land Claims Agreement contains clauses that contemplate the creation of an Inuit Court. The ISR falls within the jurisdiction of the Northwest Territories court system, which is composed of a Justice of the Peace (JP) court/bail system, a Territorial Court level, and a Supreme Court. Nunavut has the only unified court system in Canada where the vast majority of cases are heard by the Nunavut Court of Justice (NCJ), one court with a blend of territorial and superior court powers. It also has a strong Justice of the Peace program in Iqaluit, where summary conviction offences can be dealt with from Crown election through to sentencing following a guilty plea or a finding of guilt after a trial.86

Each region of Inuit Nunangat also has a variety of levels of access to social services as well as correctional services. The entire region covered by the Nunavut Land Claim Agreement is covered by the territory of Nunavut, so Inuit interests are reflected very strongly in every policy or decision made by the Government of Nunavut. This is also the case within the Nunatsiavut region, where the Nunatsiavut Government has jurisdiction over health and social development under the Labrador Inuit Land Claims Agreement. Therefore, the programming for Inuit cultural support is prevalent within Nunatsiavut, but in communities outside of those regions such as in St. John’s, these Inuit-specific programs are not necessarily as highly prioritized by the provincial or federal government. As a result, Inuit-specific programs and services are not as common in urban settings. That said, the federal government recently committed to funding programming to address the overrepresentation of Inuit within the criminal justice system in Nunatsiavut87 and Nunavik.88 With sustained financial and political commitment from all levels of government to address the issue of the overrepresentation of Indigenous people in the justice system in the long term, the more promising it is that this issue will slowly begin to change.

Long-term, sustained political and financial commitment toward Inuit-specific social programming and programming that addresses the overrepresentation of Indigenous people in the justice system has to take place across Inuit Nunangat—not just in one or two regions. To address the issue of overrepresentation, it is relevant to recognize the harm that the system causes. For example, Inuit who reside in one of the communities in Inuit Nunangat and are sentenced to a federal term of imprisonment have no choice but to serve their time in a southern region because there are no federal penitentiaries in the North. In the Nunavut Court of Justice decision of R v Itturiligaq, this was recognized by Justice Bychok:

There is no federal penitentiary in Nunavut. Inuit must serve their federal prison time in the south where they are forced to live in isolation from their culture, family and social networks. In many ways, the federal penal system is a twenty-first century continuation of the philosophy of forced resettlement, Residential Schools and southern tuberculosis sanitaria. Many Nunavummiut cannot understand why we continue to let our offenders be sent south.89

Identifying possible solutions

When imagining and implementing an Indigenous Justice Strategy in Inuit communities, it is important to recognize that for people who are engaged in the process of criminal justice, the justice system—a system that is completely foreign and does not reflect their language or cultural and legal norms—has a huge lasting impact.90 These are important factors to consider when imagining how to address the harms perpetuated by the justice system and also address the overrepresentation of Inuit within the correctional systems. To reduce recidivism, it is important to create and fund Inuit-specific programming that alleviates the detrimental effects of being processed through the justice system and often going to prison.

In thinking through an Indigenous Justice Strategy that reflects the needs of Inuit who experience the justice system either as an offender or as someone who is affected, such as a family or community member, the issues that exist for Inuit in the current justice system have to be brought to light. While there is overlap between how different regions of Inuit Nunangat experience the justice system, not all issues will be the same. What priorities will be preferred for different issues will also vary. In implementing an Indigenous Justice Strategy, it is important to consult each Inuit region in the implementation of a strategy with a distinctions-based lens.91 While engaged in that consultation, it would be beneficial to also look at whether each region would like to amend their existing modern treaty to allow Inuit to administer justice in their own regions. It will be critical to apply a lens that assesses the unique interests, priorities, rights and circumstances of each community92 when it comes to administering justice across each region of Inuit Nunangat.

Expand this short discussion out to include First Nations and Métis groups across Canada, and the federal Indigenous Justice Strategy faces a tremendous hurdle in trying to appropriately reflect diverse and varying legal orders, cultural norms, languages and diversity amongst Canada’s Indigenous populations. For this reason, we suggest that the Strategy must be equitably adaptable to different regions and Indigenous groups. The strategy has to be distinctions-based in its application and in its process for analyzing the effectiveness of the implementation of the Strategy.

Finally, it could be argued that a strategy is a good starting point in attempting to address the over-representation of Indigenous people in the justice system, but it simply does not go far enough. Instead, the development of an Indigenous Justice Law,93 potentially under section 91(24) of the Constitution Act, 1867 and/or in accordance with section 35 of the Constitution Act, 1982 could be drafted and adopted by the Parliament of Canada. This legislation would have to be developed through consultation with Indigenous people from across Canada in a similar manner as proposed in this paper. Such legislation would also benefit from looking to other jurisdictions internationally, to see what legislative measures other countries have adopted to manage the issues that arise within the area of justice within their respective Indigenous communities. For example, the Navajo Tribal Court system has implemented its own Navajo legal orders and procedures in the development of its laws and the application of laws in judicial proceedings.94 A Canadian Indigenous Justice Law may be an appropriate mechanism to lay out a framework by which the Canadian court system might begin to engage formally with Indigenous legal orders in a systematic way.95 There are other jurisdictions around the world that have adopted innovative approaches to navigating the issues that arise from the overrepresentation of Indigenous people within their criminal justice system. These examples could provide some insight into how Canada could develop its own Indigenous Justice Law.

Creating new legislation as part of a national Indigenous Justice Strategy would mean that the decisions made under the legislation and its administration would be open to judicial review, adding a layer of accountability. If issues arise in relation to the implementation of this Indigenous Justice Law, there would be an opportunity for it to be assessed by the judicial system. This would create jurisprudence and precedent pertaining to Indigenous justice issues and potential solutions that arise from that judicial process. An Indigenous Justice Law that is passed by the Parliament of Canada would not only be reviewable by the courts, it would also be less susceptible to government changeover after every election. A policy or strategy can be altered at the whim of the sitting government, whereas legislation is more entrenched. It would be woven into the national fabric of our country’s laws.

The aspirations and spirit of an Indigenous Justice Law would be in alignment with the United Nations Declaration on the Rights of Indigenous Peoples Act; the United Nations Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment; the Convention on the Elimination of All Forms of Racial Discrimination Against Women; and the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. The development of an Indigenous Justice Law would follow a similar thorough consultation process with Indigenous stakeholders as a strategy. At the end of the consultation process, the result would be more than a strategy—the Government of Canada would be demonstrating its commitment to the Indigenous population by enacting legislation specifically tailored to address Indigenous overrepresentation in the justice system.

Concluding thoughts

The aim of this paper was to apply an Inuit lens in trying to address difficult and complicated questions that tackle the overrepresentation of Indigenous people in Canada’s justice system. There is no one-size-fits-all answer to tackling such important questions. However, it is possible that through the process of ongoing consultation with Inuit, First Nations, Métis and 2SLGBTQQIA+ people in the development and implementation of an Indigenous Justice Strategy, the way forward in dealing with this national crisis could become clearer. It is important that the information gathered in the development of this strategy and ongoing work into the future be deliberately disaggregated. Why? Because the experiences of each Indigenous community will be different and so will the issues, challenges and solutions. There is no single solution in managing this complex issue; it has to be managed in an equitable manner that reflects the realities of each Indigenous group and region.

The approach in consulting with Inuit in the development and implementation of an Indigenous Justice Strategy was highlighted in full throughout. To reiterate, it is important to consult Inuit at the regional levels in Nunatsiavut, Nunavik, Nunavut and ISR. Further, it is important to consult the front-line organizations who work directly with Inuit that are affected by the justice system. It is also important to consult with the national entities that advocate for Inuit at the federal and provincial/territorial levels. There are approximately 65,000 Inuit nationally and they are spread out from coast to coast to coast.

Lastly, it was argued that a strategy is a good starting point in addressing the overrepresentation of Indigenous people in the justice system, but it remains simply a strategy. If a more serious approach were to be adopted, then the federal government should prioritize a national Indigenous Justice Law. An Indigenous Justice Law is a more sustainable tool that would allow the federal government and Indigenous groups to legally address the overrepresentation of Indigenous people in the justice system. A law holds more weight than a strategy because legislation undergoes a rigorous enactment process before being passed. It is also a tool that is judicially reviewable when issues arise and allows for precedent to be created, which could be beneficial in assessing the possible issues that arise when dealing with the justice system within Indigenous communities.

Considerations for decision-makers

To summarize the recommendations from this paper, below are some points to consider when looking at the development of an Indigenous Justice Strategy from an Inuit perspective:

  1. The aim of developing an Indigenous Justice Strategy should be to work toward building an Indigenous Justice Law;
  2. Regional governments and organizations throughout IRC, Nunavut, Nunavik and Nunatsiavut should be consulted;          
    1. Consultation should include the possibility of amending existing modern treaties to include self-government provisions with the ability to codify Inuit laws and create an Inuit court system if the Inuit region consents to that as a priority;
  3. Front-line organizations that work directly with Inuit who engage with the justice system should be consulted. This should include organizations that work with both offenders and victims;
  4. National, provincial and territorial organizations that advocate for Inuit political and legal rights should be consulted;
  5. The information compiled should ideally be disaggregated so as to highlight the distinctions between the sui generis needs and issues of Inuit, Métis, First Nations and 2SLGBTQQIA+ people;
  6. The information compiled should ideally be disaggregated by men, women and gender-diverse people when possible;
  7. The information compiled throughout the consultation should be compiled with an understanding of the importance of compiling this information so it can be stored in a mechanism whereby it can be useful for future generations of Indigenous peoples;
  8. In the development of an Indigenous Justice Strategy and Law, international examples should be considered as potential models that could be incorporated;
  9. Provisions of the federal Canadian United Nations Declaration on the Rights of Indigenous Peoples Act should be incorporated into the development of an Indigenous Justice Strategy and Law; and
  10. The relevant United Nations Conventions should be incorporated into the development of an Indigenous Justice Strategy and Law, as well as the Truth and Reconciliation Commission’s Calls to Action and the National Inquiry into Missing and Murdered Indigenous Women and Girls’ Calls to Justice.