The development of an aboriginal criminal justice system: the case of Elsipogtog.

• Author: Clairmont, Don

INTRODUCTION

This paper focuses on the development of a comprehensive community-based Aboriginal criminal justice system in Elsipogtog New Brunswick, the apex of which has been its Healing to Wellness Court (HWC) which became operational in 2012. Initially the authoritative and policy context for Aboriginal Justice which facilitated this emergence is examined. Subsequently, the local Elsipogtog context, a decade-long struggle for social order is considered, primarily from the perspective of policing. The third section deals specifically with the emergence of the HWC, its special features and challenges for Aboriginal justice. (1)

1. AUTHORITATIVE AND POLICY CONTEXT

   The signal events in the past 30 years that have shaped the context for justice possibilities for Aboriginals in Atlantic Canada have been (a) the Constitution Act, 1982 ("the existing Aboriginal and treaty rights of Aboriginal peoples of Canada are hereby recognized and affirmed"); (2) (b) the 1989 report of the Hickman Inquiry on the Wrongful Prosecution of Donald Marshall Jr. (bearing most specifically on the Mi'kmaq in Nova Scotia but having rippling effects throughout Atlantic Canada); (3) (c) the 1996 Royal Commission on Aboriginal Peoples (RCAP) report, Bridging The Cultural Divide, which laid out a revitalizing agenda for Aboriginal justice in Canada; (4) (d) the Supreme Court of Canada's (SCC) 1999 Gladue decision which was a culmination of earlier court decisions and sentencing policies and emphasized the unique considerations that should be taken into account by judges when sentencing Aboriginal offenders; (5) (e) the SCC's 1999 rulings in the case of Donald Marshall Jr's conviction for illegal eel fishing (a regulatory conviction whose overturning by the SCC had profound effects for Aboriginal economic development and Aboriginal regulatory governance, attacking the roots of First Nations' (FN) social problems). (6)

   The Hickman / Marshall Inquiry impacted most directly on Nova Scotia but its ramifications were important as well in New Brunswick and PEI. The three Royal Commission commissioners determined that the wrongful prosecution of Marshall in 1971 was directly a function of the fact that Marshall was Aboriginal and that Nova Scotia's justice system had been "racist and two-tiered", a damning indictment by respected, mainstream judges. The Inquiry's recommendations were wide-ranging, extending well beyond redress for Marshall and Aboriginal issues to the organization of policing and prosecutorial services in Nova Scotia and advancing new policies to respond to the problems of disclosure, wrongful prosecution and political interference. The Inquiry has had a profound impact on issues of Aboriginal justice in Nova Scotia (7) generating initiatives such as restorative justice programs, and regular provincial court sittings on the largest FN, Eskasoni; currently, a wide range of province-wide Aboriginal justice services are provided through the Mi'kmaq Legal Support Network (MLSN) which may well be the most effective and well-established multi-FN, Aboriginal justice programming in Canada. (8) The Inquiry's report was generally seen as progressive by First Nations and, overall, was favourably received by the Union of Nova Scotia Indians which emphasized that "We agree with the principle that change must be community-based and, in implementing a justice system on Mi'kmaq communities, it will require the active involvement of community members. A broad base of community acceptance and community support are essential for any initiative to succeed". (9) The Inquiry's recommendations have mostly been implemented; indeed, the justice services provided by MLSN in some ways have gone well beyond them. A key factor in this progress has been the Inquiry's recommended Tripartite Forum on Native Justice whereby high-ranking federal, provincial and Mi'kmaq representatives meet regularly to monitor current justice initiatives for the FNs and consider new ones. The Tripartite Forum launched in 1991 continues on and has recently spawned the multi-year "Made in Nova Scotia" treaty process.

   The Marshall Inquiry advanced--as did most, but not all, such Canadian inquiries on Aboriginal justice issues between 1985 and 1992--an agenda oriented to greater engagement and decision-making on the part of Aboriginal people within a more progressive mainstream justice system: "We agree that some degree of control should be accorded to Native people in respect of their institutions of justice. A Native Criminal Court is one way to return to them some degree of control over Native justice." (10) The underlying ethos of the Marshall Inquiry and its recommendations might best be described as focused on "fairness and integration". The vision and the accompanying agenda were to eliminate racism, reduce legacy effects (e.g., the impact of the IRS experience) and secure the more satisfactory inclusion of Mi'kmaq people in mainstream society. As the Commissioners emphasized they were not proposing "a separate system of Native laws but rather a different process for administering on reserve certain aspects of the criminal law". In their view Aboriginals should be so empowered "Because they are Native" (Hickman, p168), (11) having a history and culture prior to colonization, and could generate successful measures for resolving disputes. In a modest way the Inquiry's approach had "legs" that could go significantly beyond simple fairness and integration. Also, while the recommendations focused on the criminal justice sector there were aspects that referred to family justice issues and the general use of alternative dispute resolution (ADR) in civil and regulatory (e.g., band bylaws) matters; clearly these justice issues have become more salient in Aboriginal society over the past two decades.

   In 1996, at a general meeting of Nova Scotia FN chiefs, there was consensus that, given the realization of the gist of the 1989 Marshall recommendations, the appropriate agenda for Aboriginal justice services in Nova Scotia, going forward, should be that advanced by recently concluded RCAP hearings. In the RCAP analyses and recommendations prominence was given to "autonomy and difference" through a set of arguments, namely (a) the mainstream criminal justice system (CJS) was imposed, alien and ineffective for Aboriginal peoples; (b) treaty rights to develop alternatives exist, and (c) community controls would be appropriate given the treaties, cultural differences and pragmatic imperatives. The RCAP agenda called attention to two additional points that are salient in considerations of Aboriginal justice in general, namely (a) the possible importance of transcending community-specific justice programming to construct tribal or multiple-FN, partnered justice services in order to achieve cost efficiency and better cope with conflicts of interest and favouritism, and (b) the importance of justice segments other than the criminal sphere in order to effect more culturally appropriate and need-specific justice services (e.g., family justice and regulatory or band-initiated administrative justice initiatives). RCAP discussed jurisdictional and collaborative issues at length with respect to both law-making and administration of justice and, in arguing for significant Aboriginal rights in both areas, differentiated between core and peripheral concerns; core concerns, defined as crucial to Aboriginal culture and society and not profoundly impacting on mainstream society, were the areas where, in the RCAP argument, significant Aboriginal autonomy could be exercised. But while the justice system and policing were deemed to be core-relevant, the RCAP position was that in these segments there would be only modest difference vis-a-vis mainstream society. It was underlined that perhaps some but certainly not all laws enacted in Aboriginal nations will be criminal laws; indeed considerable emphasis was given to the regulatory and family spheres of justice. (12)

   Family justice, it was argued, would be more likely than criminal justice to be a jurisdictional site where Aboriginal values and practices might yield substantially different justice laws, policies and practices. Having an ethos of "difference and autonomy", then, RCAP directed attention to where constitutional rights, cultural differences and circumstances could lead to Aboriginal administration and jurisdiction in justice matters. Interestingly, though, the RCAP commissioners expected that whatever the level of parallelism in justice matters, there would only be minor differences in the criminal justice field were the RCAP position to be accepted by Government and Aboriginal peoples. Thus, there is much commonality in the Marshall Inquiry and the RCAP perspectives on Aboriginal criminal justice despite their different premises. Both suggest that significant Aboriginal criminal justice initiatives are required but can be accommodated within the mainstream justice context. In the RCAP instance it was acknowledged that standards of effectiveness, efficiency and equity may require a stronger cohesion of FN identity that transcends band affiliation; certainly in many circumstances a province or sub-province--wide system is being advanced; that position was implicitly adopted in the Marshall Inquiry.

   The other two signal turning points highlighted above sprang from two decisions (including related judicial clarifications and subsequent policy imperatives) of the SCC in 1999, one dealing with criminal and the other, regulatory justice. A major SCC decision and entailed policy directive announced in 1999 concerned the Gladue case where the conviction and incarceration of an Aboriginal person was successfully challenged on the grounds that more attention in sentencing should have been paid to the attenuating factors associated with the unique legacy of the Aboriginal experience in Canada which has long been associated (and continues to be)...