From Rhetoric to Reality: Bridging the Gap in Indigenous Justice Initiatives

Can the Liberal government’s Indigenous Justice Strategy catalyze a new era of transformative reconciliation? The ball is in Justice Arif Virani’s court.

By Aftab Ahmed

Despite comprising only five percent of the population, Indigenous Peoples account for a disproportionate 28 percent of federally sentenced individuals and 32 percent of the prison population. In 21st century Canada, the treatment of Indigenous Peoples within the criminal justice system serves as a reminder of why the process of decolonizing settler legal traditions remains very much in its infancy.

By recognizing this as a problem, Ottawa has embarked on a constructive path forward. But the prime minister’s symbolic gestures must be translated towards the tangible execution of his government’s vision for reconciliation. Simply put, it is imperative to bridge the gap between policy development, rhetoric and action, to nurture improved socioeconomic, legal and health outcomes for Indigenous communities.

A 1999 Supreme Court ruling, stemming from the R. v. Gladue case, mandated judges to consider an Indigenous person’s background in sentencing decisions and in exploring non-custodial alternatives, setting a landmark precedent in the right direction. Fast forward to 2020, British Columbia’s First Nations Justice Strategy (FJS), inked with 203 First Nations, garnered recognition for its initial success. The federal government is considering the FJS as a blueprint for national replication, highlighting its potential as a model for advancing Indigenous justice initiatives. Alberta and Nunavut have followed suit.

The bottom line is clear: addressing systemic discrimination and the overrepresentation of Indigenous Peoples in the criminal justice system necessitates a two-pronged strategy. First, it is imperative to uphold landmark judicial rulings that champion reconciliation. Second, the exploration of institutional mechanisms to proactively integrate Indigenous legal structures within Canada’s broader legal framework is equally important. Again, on paper, these seem to be priorities.

In his mandate letter to the former minister of justice and attorney general, Justin Trudeau tasked David Lametti to develop the Indigenous Justice Strategy (IJS). During his tenure, Lametti exhibited forward-thinking leadership by actively supporting the establishment of a groundbreaking normative framework designed to address the specific concerns of Indigenous Peoples within Canada’s criminal justice system. Practical steps on this front have been initiated. Lametti’s efforts not only sought to amplify Indigenous legal perspectives but have played a central role in anchoring Canada closer to its reconciliation objectives.

From its inception, the IJS has endeavoured to propel restorative justice principles forward, address the enduringly high incarceration rates plaguing Indigenous communities and reinvigorate Indigenous legal traditions. This holistic pursuit exemplifies a strategic commitment towards cultivating transformative change within the realm of Indigenous justice.

As it stands, the development of the IJS features a five-step approach that involves building partnerships, assessing community needs, developing and implementing necessary programs, monitoring and evaluating outcomes, and building capacity. Slated to be released in 2024, the finalized IJS will act as a principal component of Ottawa’s efforts to address the harm inflicted by colonialism — and do so by promoting the harmonization of federal laws with Indigenous rights and values.

From its inception, the IJS has endeavoured to propel restorative justice principles forward, address the high incarceration rates plaguing Indigenous communities and reinvigorate Indigenous legal traditions.

In January 2023, Lametti announced that the government is laying the groundwork for Indigenous legal systems to “thrive alongside” the Canadian justice system. Via $ 1.5 million in IJS-related funding, the Métis Nation governments will be engaged in developing programs, policies, and legislation to reduce the overrepresentation of incarcerated Métis individuals and to bolster Métis traditional legal systems. Ultimately, the goal is for the Métis Nation to regain jurisdiction over the criminal justice system.

Lametti’s emphasis on the IJS reflected a commitment to authentic collaboration with Indigenous communities, aligning with both domestic political necessities and Canada’s international responsibilities. Citing the International Covenant on Civil and Political Rights in their 2021 brief to the UN Human Rights Committee, Amnesty International stressed the negative consequences of colonial legal structures on Indigenous Peoples. These systems have methodically forced Indigenous communities from their ancestral lands, perpetuating a legacy of cultural genocide, while fostering adverse legal ramifications.

Parallel to the IJS, Bill C-15 marks a major milestone in empowering Indigenous self-determination and in safeguarding their cultural heritage. Through the alignment of Canadian legislation with the United Nations Declaration on the Rights of Indigenous Peoples, in accordance with the Truth and Reconciliation Commission’s Call to Action 42, the bill seeks to link federal laws with the principles and values inherent to Indigenous communities. The simultaneous existence of a well-defined IJS implementation timeline complements Canada’s broader commitment towards reconciliation.

From a philosophical standpoint, it is essential for Ottawa to take the lead in steering discussions aimed at reimagining both the authority and nature of law. Val Napoleon, Law Foundation Chair of Indigenous Justice and Governance at the University of Victoria, emphasizes the diverse sources of law, which include customary practices, oral traditions, and written records. Examining these aspects becomes critical in the context of the IJS. Although these conversations may present undeniable challenges, they are indispensable to achieving authentic reconciliation within the realm of law.

In light of the IJS and the ongoing efforts towards reconciliation, how does Trudeau’s new minister of justice and attorney general, Arif Virani, envision the future of the Indian Act and its compatibility with advancing Indigenous legal structures? The Indian Act is a third-rail issue that most governments typically sidestep, as it threatens to open a Pandora’s Box surrounding the complex relationship between Indigenous Peoples and the Crown. But it is a Pandora’s Box well worth opening, particularly in conjunction with the anticipated release of the IJS in 2024.

Policy Contributing Writer Aftab Ahmed graduated with a Master of Public Policy degree from the Max Bell School of Public Policy at McGill University. He is a contributor to The Line and a columnist for the Bangladeshi newspapers The Daily Star and Dhaka Tribune. He is currently an Urban Fellow Researcher with the City of Toronto.

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