Delivering Access to Justice in Aboriginal Communities

At the end of June the Attorney General of Ontario announced that Alvin Fiddler, deputy grand chief of the Nishnawbe Aski Nation would co-chair a new panel intended to help rectify the severe underrepresentation of First Nations peoples in Ontario’s justice and jury. The panel will oversee the implementation of seventeen recommendations made by former Chief Justice Frank Iacobucci in his report “First Nations Representation on Ontario Juries”. The report, which was released to the public last February, was initially intended to examine the narrow issue of First Nations peoples and jury representation. However, with Iacobucci drawing the conclusion that the justice system as it applies to First Nations peoples is in crisis, the report can be read as much larger comment on the justice system more widely.

It is unlikely that Iacobucci’s conclusion will come as any great surprise to those Slaw readers interested in access to justice issues. It is well documented that when compared to other Canadians, Aboriginal peoples in Canada suffer higher rates of unemployment, lower levels of education, higher levels of poverty and lower overall health – all factors that impede access to justice. What is interesting and encouraging about Iacobucci’s report however, is his suggestion that we will need a wider lens and a longer memory if we are to truly address access to justice issues in Canada’s Aboriginal communities.

Hoping that his report will serve as a “wake up call to those interested in the administration of justice”, Iacobucci takes great pains to illustrate the complexity of access to justice issues in First Nations communities. The following are a few of “broad problems” that Iacobocci identifies as contributing to the specific issue of underrepresentation of First Nations peoples on the jury roll. He notes,

• There continues to be a conflict between First Nations cultural values, legal traditions and ideologies and those that form foundation of the Canadian justice system. This is particularly evident in the case of conflict resolution where the principles of balance, harmony and healing underpin guide this process. This restorative justice approach is often at odds with the Canadian system that centers heavily on retribution and punishment.
• There remains a deeply rooted inter-generational mistrust of the Canadian justice system. For many First Nations peoples the Canadian justice system has worked against rather than for them (particularly in the areas of criminal justice and child welfare). It remains difficult to foster trust in a system that does not reflect the fundamental values of First Nations communities.
• There exists the strong desire for First Nations communities to gain and retain control over justice matters in their community. While community-based restorative justice programs have been met in the past with enthusiasm and some success, the funding for these programs has recently been eliminated.

Each of these problems finds its origin in the long period of colonization and forced cultural assimilation endured by First Nations people. It was during this period that the unique cultural values and legal systems of the First Nations were delegitimized and systematically targeted for elimination. In explicitly identifying these issues, Iacobucci has challenged those in the access to justice field to begin thinking through difficult questions regarding power imbalances and the reconciliation of two very different understandings of justice. In short he challenges us to ask: how can we provide access to justice in a way that ensures that the justice system maintains both political and moral authority in First Nations and other Aboriginal communities?

Luckily, there is a growing attention being paid to this question by researchers as well as legal and policy experts at both the national and international level. At the international level the United Nations has tasked the Expert Mechanism on the Rights of Indigenous Peoples with studying access to justice for indigenous peoples[1]. Unfortunately, only seven countries made submissions to the study (Canada was not among them) with these submissions averaging approximately three pages (with Peru and Mexico being the exceptions). The reports submitted by the non-governmental stakeholders and national human rights organizations however are decidedly different. They range in length from one page to forty, with most outlining, often in painstaking detail, the barriers indigenous peoples face to accessing justice. They also detail the relationship between access to justice and human rights and offer recommendations to help governments find a way forward (you can read the Canadian Human Rights Councils submission here)

Closer to home a number of organizations have also begun to tackle this complex question. For example, this past winter the Association of Canadian Court Administrators (ACCA) reported on a number of aboriginal justice initiatives across the county. The cataloguing of these initiatives has been only part of the ongoing work of the ACCA’s Aboriginal Justice Committee, which was established in 2011. In a slightly different vein, this past March the Canadian Forum on Civil Justice (the organization I work for) held a one-day policy workshop in the Yukon that drew together academics, legal experts and First Nations policy makers to begin exploring the question of how community led policy making could improve access to justice in the field of heritage.

These examples (and there are many more that I don’t have the space to mention) represent an increasing awareness of the importance of finding innovative solutions to old problems. As Iacobucci states clearly in his report, “if we continue the status quo we will aggravate what is already a serious situation…”. As we struggle to find the path towards a more fair and accessible justice system we will need to develop approaches that see and account for cultural difference; this will undoubtedly engage us in a task that will challenge us to abandon the longstanding assumption that the best way to ensure justice is to blindfold her.