Sentencing circles may offer changes for young offenders
Lolly Kaiser
Windspeaker Staff Writer
EDMONTON
Sentencing circles could alleviate some of the estrangement Native youth feel from the mainstream justice system, says a member of a federal group gathering information for a revised Young Offenders Act.
"We have to begin looking at alternatives (to jail) that fit culturally," said Joan Pennell.
Funded federally through the National Crime Prevention Council, the Youth Justice Committee is travelling throughout six provinces to find out how circles operate and to evaluate the alternative sentences being handed down to repeat offenders.
The Council will report to parliament in fall (1995) on alternatives to custody for youth. So far the Young Offenders Act makes no reference to the fledgling circles but Pennell says her group's recommendations could affect how the circles operate in future.
Edmonton's Native Youth Justice Committee is on the right track, she said.
"It seemed like a terrific program and I was really impressed with the Elders. We want to learn from it and highlight it as an example of how alternatives (to jail) can work.
"We need to re-look at the Young Offenders Act. When we brought it in it was meant to use alternative measures to custody, but it's not been implemented that way," said Pennell.
"Given that many young people are in custody for nonviolent crimes, we're raising the question of whether this is the most effective way to spend public money."
According to Pennell, each young offender in custody costs the taxpayer $80,000 a year for a total of $380 million. She's concerned with statistics that show that while over half of the young offenders are Native, only six per cent of those youth become involved in alternative measures.
7/95
Davis Inlet stalIs return of judge
By Debora Lockyer
Windspeaker Staff Writer
DAVIS INLET, Labrador
Innu leaders in Davis Inlet, Labrador have succeeded in stalling Newfoundland Justice Minister Edward Roberts' attempts to reinstate the sitting of the provincial court in the community.
The Innu blockaded the lone airstrip into the community on Sept. 6, (1994) frustrating the government's plan to fly-in court officials.
The Innu set up dozens of oil drums on the airstrip and the people of the community occupied the strip, making it too dangerous to land a plane.
RCMP and the Canadian military remained on alert in Goose Bay preparing for an invasion into the community. This despite an offer from Innu leaders to call a three-day cooling off period so that negotiations might get back on track.
The dispute began last December when Provincial Court Judge Robert Hyslop was ousted from the community by former chief Katie Rich. She and other community members questioned the quality of justice Hyslop was dispensing. She announced the court no longer had authority in Davis Inlet and it has not operated since that time.
The community of Davis Inlet has 77 outstanding criminal charges to be heard. Efforts have been made to establish, with the federal and provincial governments, a justice system that would be sensitive to the cultural needs of the community.
Negotiations broke down Sept. 2 when Roberts objected to the participation of Rich in the discussions between the province and the Innu. Roberts then ordered the RCMP to prepare to force their way into the community.
"The court will sit in Davis Inlet and the rule of law will prevail," said Roberts.
"Roberts has created a crisis where no such situation existed," said Chief Simeon Tshakapesh.
"Our people are learning to heal their own community, free of an alien system of punishment and incarceration. Our people will not allow the progress we have made in healing our communities to be derailed by the re-imposition of the provincial court system and the RCMP," he said.
By Debora Lockyer
Windspeaker Staff Writer
VANCOUVER
Justice Minister Allan Rock has been making noises, of late, in support of a separate system of justice for Aboriginal peoples. He said it may have to be considered as part of the inherent right of self-government.
While the Canadian Bar Association has no formal position on whether a separate system would be in the best interest of Canada, it has tabled a discussion paper on the subject.
Originally intended for the Royal Commission on Aboriginal Peoples, the paper outlines how such a justice system might work, said Vina Starr, a Native lawyer and chair of the Aboriginal Law Section of the association.
Starr identifies four source of lawmaking authority for Aboriginals out of which an Aboriginal justice system might grow. These authorities begin with the statutory sources like the Indian Act and the Metis Settlement Act, she said.
The second authority is treaties, specifically the six modern day treaties like the James Bay and Northern Quebec Agreement and more recently the Nunavut Settlement Agreement.
The third source of lawmaking authority is Canadian common law, or family law, established in the late 1800s, which recognizes an Aboriginal government's right to sanction marriage, divorce and adoption.
The fourth source is section 35 of the Canadian Constitution which was designed specifically to protect Aboriginal and treaty rights.
To a certain extent a separation in the justice system already exists, Starr said. In this regard, the individual Aboriginal communities would have to determine from which source of power their justice system would derive.
The Mohawks in Kahnawake have established their own court system derived from statutory sources, specifically the Indian act, Starr said. The Teslin-Tlingit in the Yukon have a functioning justice system based on common law and section 35.
The Teslin-Tlingit have based their justice system on the traditional clan system, Starr said. In this system, the motivating principle is to restore the victim of an offence to the position he enjoyed before the offence occurred, said Starr. It also attempts to seek ways to restore the offender in the eyes of the community and to help him become a contributing community member.
"All Aboriginals seek to understand why the offender is out of harmony with the community," Starr said. This underlying principle diverges from the Victorian system of justice which emphasizes punishment.
Though the CBA has no formal position on a separate Aboriginal justice system, Starr does.
"We are one country and in order to survive we need a common unifying factor."
Starr said the criminal code must prevail and specific sections must be enforced throughout the nation. But minor offences, or what would be considered summary convictions resulting in lesser jail terms, should be transferred to the community.
The community should have jurisdiction over all private matters, including family and marital issues, estate matters, property offences and offences against the person.
The bottom line is Aboriginal people want to take control of matters concerning peace, order and good government. But because of limitations on resources, they may have to leave the larger issues, like national defence and large-scale drug trafficking offences, to Canada.
Chiefs a no-show in B.C. courtBy Debora Lockyer
Windspeaker Staff Writer
VANCOUVER
An arrest warrant has been issued for three hereditary chiefs of the Nuxalk Nation who, along with 19 others charged in connection with a logging protest on King Island near Bella Coola, failed to appear in court for their trial.
The chiefs, Lawrence Pootlass, Edward Moody, and Charles Nelson, were to appear in the Supreme Court of British Columbia Jan. 22. They were charged with disobeying an injunction that would allow the forest company Interfor to harvest the logs on the island. They had set up a road block and stopped logging trucks from going into the area.
The group was arrest Sept. 26 when an RCMP assault force landed on the remote island off the B.C. coast where the Nuxalk had teamed up with environmentalist to protest the logging. The chief's challenge the jurisdiction of the supreme court over the territory. and believe it is their hereditary responsibilty, under traditional law, to protect the land from certain abuses.
The court proceeded with the trial in absentia. The chief's decided not to appear in court, because the judge refused to hear their position on sovereignty and jurisdiction.
The site of the blockade has historic significance to the Nuxalkmc, who believe it is the place from which the first woman decended. King Island is also a part of the Great Coast Rainforest, the largest remaining ecosystem left in North America.
The hereditary chiefs say they are exercising their sovereign right to prevent logging in their territory., that they have never ceded their territory or entered into any treaties or agreement with the Canadian government, and therefore continue to have jurisdiction over the land.