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Indigenizing justice | Kurt Sandstrom

Wednesday, June 19, 2019 @ 2:24 PM | By Kurt Sandstrom

Kurt Sandstrom %>
Kurt Sandstrom
As we celebrate National Indigenous Peoples’ Day (June 21) and their culture, achievements and contributions, this is also an opportunity to consider how the justice system can better meet the needs of Indigenous people.

Too often, the mainstream justice system has not been a culturally safe place for Indigenous people. They face barriers in accessing justice, linked to the legacy of colonization and racism. They face the fear of child welfare interventions, which have separated generations of Indigenous children from their families and communities, further reinforcing a lack of trust in the system and its services. Moreover, characterized by adversarial approaches and punishment, the system is often at odds with Indigenous perspectives of justice, which focus on reconciliation, restoration of peace, social harmony, individual and community healing and the significant role of elders.

B.C. is determined to make meaningful and transformative changes to its justice system and advance reconciliation with Indigenous Peoples. We are implementing the recommendations from the UN Declaration on the Rights of Indigenous Peoples, the Truth and Reconciliation Commission’s Calls to Action, and the Tsilhqot’in Supreme Court decision, and have introduced the Draft Principles that Guide the Province of British Columbia’s Relationship with Indigenous Peoples.  

Within the Ministry of Attorney General, we are likewise engaged in taking action. Our approach is informed by the documents above and, more specifically, by our partnerships and relationships with Indigenous leaders and organizations, who have helped guide us toward the importance of substantive changes, rooted in an “Indigenized” justice system.

Bob Joseph (K’axwsumala’galis), founder and president of Indigenous Corporate Training, states that Indigenization:

  • recognizes the validity of Indigenous worldviews, knowledge and perspectives; 
  • identifies opportunities for indigeneity to be expressed; and
  • incorporates Indigenous ways of knowing and doing.

For the justice system, Indigenization is about more than simply adding Indigenous content to the existing system. Instead, it means embedding Indigenous knowledge and approaches in the current justice system to create new ways of understanding and being.  

British Columbia is working collaboratively with Indigenous partners towards an Indigenized justice system.

On Sept. 7, 2017, the Ministries of Attorney General and Public Safety and Solicitor General and the B.C. Aboriginal Justice Council entered into a Memorandum of Understanding (MOU) to jointly develop a provincial Indigenous Justice Strategy.

Recently, through resolutions of its three founding organizations, the B.C. Aboriginal Justice Council received approval to change its name to the B.C. First Nations Justice Council (BCFNJC) and to clarify its mandate to focus on First Nations-specific justice issues.

This change made it evident that a single provincial Indigenous justice strategy would not meet the needs of both First Nations and the Métis, who are distinct cultures with their own priorities and histories of working with the provincial government.

B.C. is now committed to working with the B.C. First Nations Justice Council and the Métis Nation B.C. Justice Council (MNBCJC) to develop two Indigenous justice strategies. This will ensure each group’s concerns and priorities are thoroughly considered and thoughtfully addressed in ways that are culturally appropriate and relevant for the distinct nations each group represents.

In November, an Indigenous Justice Strategy executive director was hired as a joint appointment of the BCFNJC and Ministries of Attorney General and Public Safety and Solicitor General to facilitate ongoing discussions between the partners and to enhance leadership capacity throughout the remainder of the initiative.

The Ministry of Attorney General also assembled a Draft Indigenous Justice Outline, which is based on recommendations contained in prior reports, and is meant to serve as a foundation for further discussion in the process of the nations developing their strategies. The outline and supporting materials have been shared with the BCFNJC and the MNBCJC for their use, if they determine the material is relevant in advancing their work.

The dialogue on the development of the Indigenous justice strategies has begun. On April 24 and 25, the BCFNJC hosted a provincial justice forum, with 177 First Nations chiefs in attendance. The purpose of the forum was to bring First Nations chiefs and leaders together to discuss opportunities for transformative change and inform the BCFNJC’s contributions to the First Nations Justice Strategy.

Subsequent to the First Nations provincial justice forum, four regional engagement sessions have been scheduled, concluding in July, to obtain community and Indigenous service provider input on the First Nations Justice Strategy.

Métis Nation B.C. Justice Council will be hosting seven of its own regional engagement sessions to obtain similar input on the Métis Justice Strategy, also concluding in July.

Once the voices are distilled into a report outlining what each distinct group feels necessary to inform their individual justice strategies, collaboration with the province will begin. This process is, in itself, transformative, as it is nation-led and acknowledges nations’ distinct approaches to the strategies.

Examples of other efforts underway in British Columbia include:

Aboriginal Family Healing Court Conference

A collaborative effort of the Ministry of Attorney General, the provincial court, elders in New Westminster and representatives from the Ministries of Children and Family Development and Indigenous Relations and Reconciliation resulted in the development of the Aboriginal Family Healing Court Conference pilot, a program for Indigenous families involved in child protection cases.

By including elders, friends and families and following a more culturally relevant approach through the use of Indigenous teachings, such as the Medicine Wheel, Four Directions and healing circles, parents are supported to create a healing and wellness plan, with the goal of finding ways to keep families together. Once families complete their plan, a cultural ceremony is held to honour their successes.

First Nations courts
First Nations courts use restorative justice and traditional cultural approaches to achieve healing. Indigenous individuals appearing in First Nations court must be accountable for their actions, which are considered in the context of the individual’s background and needs, the needs of the victim and the needs of the community. A team comprising elders, community members, native courtworkers, the lawyer or duty counsel, Crown counsel, the judge, probation officer, victim services worker and others provide advice on a healing plan that includes contemplation of sentencing options, meaningful amends for the victim and restoration of community balance.

First Nations leadership gathering
Since 2014, the province of British Columbia and the First Nations Leadership Council have held an annual B.C. Cabinet and First Nations Leaders’ Gathering intended to advance reconciliation and dialogue on shared interests by bringing participants face-to-face for one-on-one meetings, breakout sessions and plenaries on a variety of topics, including many justice-related issues. This unique made-in-B.C. approach is one of the largest gatherings of provincial and First Nations leaders in Canada and exemplifies B.C.’s commitment to recognition, respectful relationships and self-determination.    

In fall 2018, B.C. and the former B.C. Aboriginal Justice Council hosted a knowledge sharing gathering, which brought together over 40 leaders, subject matter experts, and practitioners from across the country to explore contemporary issues around Gladue implementation and to brainstorm practical approaches to address the issues. A central tenet of the province’s approach is ensuring that Indigenous voices are heard and reflected in the development of the future-state of Gladue processes in B.C.

Indigenous framework
Recognizing that the status quo is failing Indigenous persons; colonialism, displacement and forced assimilation have contributed to their overrepresentation in all parts of the criminal justice system; and bias, racism and systemic discrimination continue to aggravate this unacceptable situation, B.C’s Prosecution Service announced its Indigenous Justice Framework in April 2019. The framework is intended to change the status quo by moving towards reconciliation, building trust and promoting better relationships with Indigenous communities by focusing on three main areas: (1) Education and training; (2) policy and practice and (3) partnerships and engagement.

Indigenous Justice Centres
The BCFNJC identified Indigenous Justice Centres as a high priority action area within the First Nations Justice Strategy. Work is underway to implement up to three Indigenous Justice Centres in 2019/2020. The Indigenous Justice Centres will provide legal information, advice, advocacy and representation to clients, with a primary focus on criminal law and child welfare. They will also have outreach and support staff to assist clients to address wellness needs holistically and begin the process of confronting the factors that brought them into the justice system. These supports include helping clients with trauma, cultural and community inclusion, mental health and substance use, housing, education and employment, among others.

Parents Legal Centres
Grand Chief Ed John’s 2016 report, Indigenous Resilience, Connectedness and Reunification — From Root Causes to Root Solutions, referred to Parents Legal Centres as an effective model for achieving better outcomes for Indigenous families and children. Services include the provision of legal information, advice and representation, advocacy and mediation to support eligible clients with early, collaborative resolution of child protection issues and keep them out of court, where possible.

All these efforts are vital in helping us achieve progress on our shared interests, but we remain open to seeking new tactics, better strategies and more meaningful approaches that can help us substantially advance this issue. What promising practices have you seen? What is working? What are you doing to advance reconciliation with Indigenous peoples?

Kurt Sandstrom has been the assistant deputy minister of Justice Services Branch, with the B.C. Ministry of the Attorney General, since June 2016. He also teaches law, public policy and dispute resolution at the University of Victoria. He lives and works on the traditional territories of the Lekwungen-speaking peoples, now known as the Songhees and Esquimalt First Nations.
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