New indigenous court system could set precedents across the country
TheStar.com – Opinion/Editorials – A new court system in the Akwesasne reserve could set a precedent for other indigenous communities as well as the federal and provincial systems.
Oct. 7, 2016. Editorial
Imagine a legal system where the goal wasn’t punishment, but to “restore relationships and harmony in the community.”
It sounds too good to be true. But a court system with that very purpose has been operating in the Mohawk community of Akwesasne since Aug. 12.
That’s when the reserve that straddles the Quebec, Ontario and New York State borders became the first indigenous community in Canada to create its own court system, outside of the federal framework. It was set up by the reserve council independently of the federal government, not as a result of an arrangement under the Indian Act or a self-government agreement with Ottawa.
For once, that doesn’t seem to have made Ottawa nervous. Instead, the Justice Department is holding talks between the federal, Ontario and Quebec governments to draft a framework to recognize the new legal system.
There’s good reason for that. The court could set a good precedent for other indigenous communities and there is much that federal and provincial courts could learn from it.
Here’s how it works. Justices and prosecutors will enforce 32 laws that cover civil matters including tobacco regulations, sanitation, elections, property and wildlife conservation. (Criminal matters are still settled outside the reservation in federal or provincial courts.) Instead of focusing on punishment, the new system looks at the talents of the offending party and how they could be used to benefit the community. If a great lacrosse player were to paint graffiti on a school wall, for example, he or she might be asked to teach students how to play the game.
In this system, imposing penalties is considered “old thinking.”
That’s a concept that seems to align with thinking in the Trudeau government. The Akwesasne court came into existence just as Justice Minister Jody Wilson-Raybould began a review of the justice system, including looking at the balance between punitive measures and restorative justice.
Her review was spurred by the fact that while indigenous people make up only 4.3 per cent of the population, they represent 25 per cent of all inmates. Further, between 2005 and 2015, the aboriginal inmate population grew by 50 per cent compared to an overall growth rate of 10 per cent. In fact, incarceration rates for indigenous people in some parts of Canada are 33 times higher than for non-indigenous people.
As Wilson-Raybould, a former Crown prosecutor who is also of aboriginal background, told the Canadian Bar Association, “I often saw young indigenous men in the courtroom who were charged with non-violent property crimes. Far too often these men got caught in a vicious cycle within the system that led them to spending more time behind bars than in their communities.”
The new Akwesasne court system is designed to prevent that from happening. Already a Manitoba Cree community has sent a delegation to study it. Ottawa and the provinces would be wise to do the same. More than aboriginal communities stand to benefit from good ideas.
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