Two themes often emerge when I speak to Aboriginal people about their future. Even though they are, reluctant to talk about it, they sincerely feel that they are being neglected and put down by other Canadians and that the legal system treats them with disdain. Because they see no change in the attitudes of people who could help them, they feel powerless to overcome the hurdles they face,
I understand and share their concerns. If, as I felt in my Law School and practicing days, the Canadian system of justice is so marvellous, I now have to ask how it can possibly cause so much pain. It, must be blind to fail to appreciate that not all individuals are equal in society and that some are not well served by it. The system is particularly hard on Aboriginal people and I don’t think it overstates the severity of the situation to say that the manner in which the law is now being administered in remote communities is a travesty of justice.
The solution Aboriginal people proposehas been expressed for expressed for decades. Aboriginal people say, “we couldn’t possibly do a worse job than the existing courts. We know out people and we know what has to be done.” The now almost silent and plaintive cry is: “Why won’t they let us try?” It is not a loud and vocal plea, but the soft resigned expression of a lost hope, as they don’t’ think that anyone is listening.
The system I propose would complement the existing courts. It would remove much of the heavy workload from the Provincial [State] courts that they are unable to handle, but would at the same time leave the most serious cases to be dealt with in the courts. It would also do something else that the present courts are incapable of doing–it would have a presence in every Aboriginal community and would be able to deal with the majority of the cases in an Aboriginal language and in a culturally appropriate manner. It would avert the necessity of people from remote communities making repeated trips to distant courts, spending money they just don’t have.
We sometimes take for granted
As I began to write about what an Aboriginal Court would look like and how it would operate, I started to think about what a community wants from its courts. Why do we need courts? What do they represent? What should we expect from them? Are they just an’ extension of government of the Department of Justice? These questions I was asking myself caused me to drift into the realm of philosophy. As I explored the. issues, I found that some had a very basic importance to people and their institutions. When I thought about the importance of justice, which everyone demands but which we sometimes take for granted, I had to do some soul-searching. What is justice? How is it secured and how is it delivered?
Justice, I finally concluded, is a concept and it is a reality. In its conceptual form, justice is fairness, the treating of everyone equally and meeting everyone’s needs. In its application within a justice system, the emphasis changes to a balancing of competing needs and competing claims; it changes from merely being just, to doing justice. It must of course continue to be just. A society based on the rule of law expects its laws and its administration of them to provide justice to all its citizens. To be just, the law must also be flexible enough to take unusual circumstances into account.
It is the law that regulates a civilized society. Parliament [Congress in the U.S.] or local governments pass laws to regulate human conduct in every conceivable situation. Laws indicate what may and may not do so they will not conflict with the rights of others. It is against the law to take the life of another, to rob or beat a person, to break into another’s property, or to drive while under the influence of alcohol or drugs. The corollary of these laws is the right of every citizen to the sanctity of life, to the uninterrupted enjoyment of their property and to safety in their homes and on the streets and highways.
The law is supposed to protect the innocent and the vulnerable and condemn offenders In That respect it has an almost biblical aura and is as perfect a mechanism as man has been able to to regulate society and, at the same time, individual responsibility and conduct. There are of course flaws in the law that are discovered from time to time but until the law is amended or struck down as being invalid, it stands as the foundation and cornerstone of our society Lawmakers work to amend the law to meet current conditions and to overcome flaws or gaps that have been unearthed.
Our legal system is perfect in its conception. Justice is portrayed as a blinded goddess who is not blind but wears a blindfold as a symbol of impartiality. In a roguish twist the logo of our 1950 law class has the blindfold lifted above one eyes so the goddess can tae a peek. What she sees I do not know, but the symbolism is not without merit. ‘Justice’ should keep a sharp eye on how her laws and the administration of them are serving people.
An almost biblical aura
First Nations people, like others, accept this even-handed approach to justice and to the administration of the law. The Aboriginal society is a just society. It too wants to protect its people and to deal with wrongdoing in an effective way. The problem they see is how that can be done within the confines of a system that does not always appreciate their differences and particular needs. If there are differing needs and some would dispute that, do they warrant special attention?
It is not difficult to understand why the regular justice system fails. It cannot meet the needs I mentioned. The proof is evident in the slow and costly pace with which the system moves and the staggering number of Aboriginal people that are sent to jail. I hesitate to say that again, but it is the final litmus test of the health of the system. Aboriginal people are not in jail because they are aggressive or have a criminal bent. It is largely because they are caught up in a punitive system that fails to meet their needs. As Max Yalden said, they are in jail because the system doesn’t know what else to do with them.
Poverty is not the answer
Aboriginal people were not always represented in the courts or jails in such large numbers. Prior to The Second World War the percentage of Aboriginal people in the courts was no greater than their percentage of the population. The same applies to the numbers in jail. One has to ask what has caused the change. Have Aboriginal people changed, or is the problem systemic?
Poverty alone is not the answer as Indians have lived in poverty for a long time. Unemployment, the inability to feel like a contributing member of society may play a part in a current dissatisfaction. Substance abuse, a symptom of many personal problems, is probably part of the answer, although Indians were plied with liquor hundreds of years ago. Continuing prejudice and discrimination that prevents Aboriginal people from participating in and enjoying the advantages of modem society must be a factor. The destructive influence of residential schools on individual and families is certainly a factor in family and child abuse, and probably in personal conduct as well.
Another reason for having Aboriginal systems cover a wide area is that if a crime is committed a few miles from a reserve, it would be important to have an Aboriginal court that is able to deal with it…There would be no problem in having the areas served by Provincial [State] and Aboriginal courts overlap, as it will be the severity of the case that will determine the court in which it will be heard.
At one time I thought the same model of court could be apllied to all communities. Having seen more of the workings of Aboriginal communities, their intense independence and the substantial differences between them, I am now satisfied that any attempt on the part of government to impose a specific model would doom it to rejection and failure. Some experimentation and changes will be required as systems develop and each community or group of communities, will have to be free to apply its own traditions and to devise its own solutions.