Aboriginal Justice Implementation Commission
The Aboriginal Justice Inquiry:
Background and Key Issues
Canada's treatment of its first citizens has been an international disgrace. To fail to take every needed step to redress this lingering injustice will continue to bring tragedy and suffering to Aboriginal people, and to blacken our country's name throughout the world. By acting now, governments can give positive expression to the public support and good will we have encountered from Manitobans during the past three years.
-- The concluding words of the 1991 Report of the Aboriginal Justice Inquiry
In November 1999 the Manitoba government appointed the Aboriginal Justice Implementation Commission. This Commission was charged with reviewing those recommendations made in the 1991 Report of the Aboriginal Justice Inquiry for which the Province of Manitoba is responsible and accountable, and with proposing methods of implementing appropriate AJI recommendations. The AJIC was instructed to complete this work by March 31, 2001, a deadline that was later extended to June 30, 2001. (The full mandate of the AJIC is printed as Appendix II of this report.) Before describing the work of the Aboriginal Justice Implementation Commission and the principles that underlie its approach, it is necessary to summarize briefly the history and work of the Aboriginal Justice Inquiry.
The Aboriginal Justice Inquiry
The Aboriginal Justice Inquiry was established in 1988 in response to two specific incidents: the 1987 trial of two men for the 1971 murder of Helen Betty Osborne, and the 1988 shooting death of J.J. Harper following an encounter with a Winnipeg police officer. These two events raised serious questions as to whether the justice system was failing Aboriginal people.
The AJI was mandated to:
That Schedule established a very broad scope for the Inquiry that included "all components of the justice system, that is, policing, courts, and correctional services." (AJI, Volume I, page 3)
The Commission was to
The AJI held over 123 days of hearings, received over 1200 presentations and exhibits, travelled more than 18,000 kilometres, and generated 21,000 pages of transcripts. Its final report, released in 1991, filled two volumes and contained 296 recommendations.
These recommendations can be roughly divided into those that address questions of Aboriginal rights, and those directed at reforms to existing institutions of the contemporary justice system. The Inquiry's major initiative in the area of Aboriginal rights was the recommendation to establish an Aboriginal justice system based on rights of self-government.
In their report, the Commissioners stated that without the creation of an Aboriginal justice system, "problems of inequality and injustice will continue to plague our justice system." (AJI, Volume I, page 339) The proposed reforms to the existing system were numerous, but their overall thrust was to reduce incarceration, increase Aboriginal involvement in the operation of the justice system, and reduce cultural barriers. The AJI Commissioners stated they were recommending these changes to the existing system because:
Implementing the Recommendations of the AJI
The recommendations of the AJI were directed at federal, provincial, municipal, and Aboriginal governments, and other institutions such as police departments, schools, and universities. Following its release, there was no coordinated effort to implement the Report's recommendations. This remained the case until the appointment of the AJIC in the fall of 1999.
The Work of the AJIC
Before discussing the work of the AJIC, it is appropriate to emphasize the scope of the Commission's mandate. The AJIC is mandated to address only those AJI recommendations that touch upon areas for which the Manitoba government is responsible and accountable. The AJIC was also instructed to have regard to the Framework Agreement entered into between Canada and First Nations, and to the reports of the Royal Commission on Aboriginal Peoples (RCAP). The 1994 Framework Agreement, between the Assembly of Manitoba Chiefs and the Minister of Indian Affairs, undertakes to dismantle the operations of the Department of Indian Affairs in Manitoba.
The AJI, however, recommended action not only by the Province, but also by the federal government and by Aboriginal governments, including many joint initiatives between these parties. It must be emphasized, then, that in order to support the principles set out by the AJI and to implement recommendations in light of the Framework Agreement and the reports of the Royal Commission on Aboriginal Peoples, it is necessary that the Province undertake action jointly with the federal government and with Aboriginal people's representatives.
Following the appointment of the AJIC, the Minister of Justice and the Minister of Aboriginal and Northern Affairs requested all government departments to provide the AJIC with reports on the status of implementation of the AJI recommendations that pertain to their departments. It is these recommendations that are, in large measure, under review in this report. The AJIC reviewed those reports and met with members of the appropriate government departments.
Communication and Consultation
The Aboriginal Justice Implementation Commission was mandated to communicate and consult with Manitobans on priority areas for action and on implementation strategies. Given the fact that the Aboriginal Justice Inquiry held extensive public hearings, such hearings were not considered to be required for the AJIC to fulfill its mandate, nor were they authorized.
The AJIC has fulfilled its responsibility to consult and communicate by:
The AJIC also circulated proposed recommendations to organizations that would be affected by these recommendations. In a number of cases, recommendations have already been adopted and implemented by the government. The AJIC also posted the recommendations and the policy initiatives on its web page.
In addition to these activities, the AJIC has established a set of goals and priorities for implementing the AJI's recommendations. Those goals and priorities are best viewed in light of a discussion of the circumstances of Aboriginal people in Manitoba.
Aboriginal Peoples in Manitoba
The Aboriginal Justice Inquiry operated on the basis of the following definition of Aboriginal people:
Status Indians are those people recognized as Indians under the Indian Act and are entitled to be registered as such in the Indian Register maintained by the Department of Indian Affairs in Ottawa. That is why they are referred to sometimes as "registered" Indians.
"Non-status Indian" is a term which has been applied to people of Indian ancestry who are not, for one reason or another, registered under the Indian Act. (AJI, Volume I, page 7)
There are a number of distinct nations or tribal groupings of Aboriginal people in Manitoba. The Aboriginal people of Manitoba are the Dene in the northernmost parts of the province, the Cree in the north (with the Swampy Cree in the northwest and Oji-Cree of Island Lake in the northeast), the Ojibway (or Saulteaux) in the central and eastern regions, and the Dakota in the south and western regions, and the Métis throughout the province.
The AJI acknowledged that there was uncertainty about the number of Aboriginal people in Manitoba. This was due to a number of factors, including a decision by many Aboriginal people to boycott the 1986 census. On the basis of a statistical analysis it commissioned, the AJI concluded that in 1991, the Aboriginal population of Manitoba was 130,000, or 11.8 percent of the Manitoba population. This compares with the 85,000 (or 8.1 percent of the population) estimated in the 1986 census. The AJI further estimated that approximately 36 percent of the Aboriginal population lived in northern Manitoba, 31 percent of the Aboriginal population lived in Winnipeg, and 33 percent lived in southern Manitoba, outside the City of Winnipeg. (AJI, Volume I, pages 7-8)
According to the 1996 Canadian census, there were 128,685 Aboriginal Manitobans, or 11.7 percent of the provincial population. According to the census figures, the Aboriginal population in the province has grown by 51 percent since the 1986 census. It is also thought that the 1996 census figures continue to understate the number of Aboriginal people living in Manitoba. Manitoba has the highest percentage of Aboriginal people of any Canadian province and the highest percentage of urban Aboriginal people living in it. Studies examined by the AJIC indicate that there are approximately 80,620 First Nations people, 45,365 Métis people, 245 Inuit, and 2455 other Aboriginal people (non-status Indians) living in Manitoba (Mendelson, Chart 2: No page number).
The Aboriginal Justice Inquiry report concluded that Aboriginal people face "greater socio-economic problems than does any other segment of Canadian society." (AJI, Volume I, page 9) Compared to the Manitoba population as a whole, Aboriginal people lived shorter lives, received less education, made less money, lived in more crowded and inadequate housing conditions, and experienced more health problems. In addition to, and in large measure as a result of, these conditions, Aboriginal people were also overrepresented in the justice system. In 1989, 40 percent of the inmates at the Stony Mountain Penitentiary were Aboriginal. In that year, 47 percent of the population at the Headingley Correctional Centre were Aboriginal, while 55 percent of the province's jail population were Aboriginal. Also in that year, 67 percent of the admissions to the Portage la Prairie jail for women were Aboriginal. On October 1, 1990, 64 percent of the Manitoba Youth Centre's population and 78 percent of the Agassiz Youth Centre's population were Aboriginal. The AJI Commissioners worried that, given the fact that in 1989-90, 32 percent of the children in care in Manitoba were registered Indians, the future would be worse. (AJI, Volume I, pages 9-11)
These fears were only too well-founded. The 1996 census showed that, compared to the Manitoba population as a whole, Aboriginal people had lower labour-force participation rates, over twice the unemployment rate, lower education levels, and more frequent changes in dwellings. According to the Royal Commission on Aboriginal Peoples, Aboriginal people in general have poorer housing than non-Aboriginal people. As the following charts indicate, the percentage of Aboriginal people in custody and on probation has increased over the past decade.
Aboriginal people in Provincial Custody on September 6, 2000 (Sentenced and Unsentenced)
Aboriginal people on Probation on September 6, 2000
Manitoba Corrections (One-day snapshot)
As these statistics make clear, Aboriginal people form a far larger percentage of the inmate and probation population than they do of the general population of Manitoba.
This progressively worsening problem of overrepresentation has been debated for over 30 years. Task forces and inquiries in Manitoba, Alberta, and Saskatchewan have examined this issue, as did the Royal Commission on Aboriginal Peoples and the Law Reform Commission of Canada. All these reports noted that the problem would not be solved in the justice system alone. Longlasting solutions require addressing the circumstances of material disadvantage facing Aboriginal people, compared to the rest of the population.
This Commission was established to recommend strategies to implement those AJI recommendations in areas of provincial responsibility. However, the Commissioners are mindful of the tremendous loss and injustice that is represented by Aboriginal overrepresentation in our jails, and is, in large measure, the result of the marginalization of Aboriginal people in our society. This knowledge, along with the input we have received from fellow Manitobans, has shaped our goals and recommendations. For this reason, this report contains recommendations that seek to address the underlying causes of Aboriginal overrepresentation.
The Commission's mandate stresses the need to set priorities for short-term and long-term action, and to make proposals that are cost-effective and attainable. At the same time, they must reflect the Aboriginal Justice Inquiry's support for a justice system that is flexible and can be administered at the local level. The Commission, through its consultation with Aboriginal people, government officials, and outside experts, and through its own research, has concluded that the resolution to the overrepresentation of Aboriginal people in the justice system will come, over the long term, from within and outside the justice system. Indeed, many of the people and organizations the Commission consulted stressed the need to ensure that reform is not limited to the justice system. People repeatedly pointed to the effects on the family of poverty, ill health, and marginalization.
Based on these views, raised by virtually every group the AJIC consulted with, the Commissioners established the following priority areas for their work:
Three themes emerge from these priorities:
These also reflect the themes of the original Aboriginal Justice Inquiry report.
Based on these themes, this report is organized into five sections: an Introduction, a section on Aboriginal Rights and Aboriginal Relations, a section on Community and Restorative Justice, a section on Crime Prevention through Community Development, and Concluding Thoughts. The relevant AJI recommendations are addressed using criteria developed by the Commission. The following briefly describes the priorities that will be applied in each section.
Aboriginal Rights and Aboriginal Relations
This Commission will give priority to measures that:
Community and Restorative Justice
The Aboriginal Justice Implementation Commission has concluded that in order to reduce the number of Aboriginal people involved with the justice system:
The first two beliefs animate the recommendations in Section Three, Community and Restorative Justice, while the second two beliefs underpin the approach the Commission recommends in Section Four, Crime Prevention through Community Development. Based on these goals, the recommendations of the AJI, and consultations and research, this Commission will give priority to measures that:
Crime Prevention through Community Development
From our review of the information available to us, including the nature of the crimes committed by Aboriginal people, and after hearing the hundreds of submissions presented to us in the course of our hearings, we believe that the relatively higher rates of crime among Aboriginal people are a result of the despair, dependency, anger, frustration and sense of injustice prevalent in Aboriginal communities, stemming from the cultural and community breakdown that has occurred over the past century. (AJI, Volume I, page 91)
The changes outlined in the section on Community and Restorative Justice are necessary to improve the legitimacy, credibility, effectiveness, and, finally, the justness, of our justice system. On their own, they are not sufficient to bring about the needed reduction in the Aboriginal crime rate.
The young people in Manitoba's Aboriginal communities are at risk. The choices facing the people of Manitoba are stark: invest today in programs to strengthen families, young people, and communities; or make future investments in jails and courthouses.
Based on its goals, the recommendations of the AJI, and consultations and research, this Commission gives priority to measures that:
In its concluding section, this report addresses a number of issues that flow from its mandate. The final chapter of the report discusses proposals for a successor institution to the Aboriginal Justice Implementation Commission. Such an institution, styled the Aboriginal Justice Commission, was recommended in the original Aboriginal Justice Inquiry report. The fact that limited progress was made in implementing the AJI recommendations in the decade following its release, when compared with the progress that has been made during the lifetime of the AJIC, would appear to demonstrate considerable merit in the establishment of a continuing Aboriginal Justice Commission. This report also recommends the establishment of a Roundtable on Aboriginal Issues.