Aboriginal people and Canadian people form uniqueness and identity of Canada, so the government of the country should do everything to save this identity and so to raise the standard of living for both, Aboriginal people and Canadian people. Canada should everything to settle the appropriate aboriginal claims and at the same time to maintain its sovereignty. Canada is moving in this direction now. Canadian government has settled a number of comprehensive and specific claims that give some freedom to the aboriginal population but don’t threaten Canadian identity.
Earlier Aboriginal people used to live along all the territory of modern Canada, now in most cases they inhabit the metropolitan areas. According to the Constitutional Act of 1982 the existence of aboriginal people is officially fixed and their lives and treasures are registered. It’s obvious that such people leave their own life in Indigenous communities and they have their own local government that provide justice and promulgate laws. The main aim of this work is to find out if aboriginal justice is effective or not.
Criminal situation in any aboriginal community and in Nunavut in particular depends on many factors such as geographical position, historic circumstances, economical status of the community but we can’t leave without our attention such important things as public policy, relations between this community and the State and aboriginal justice. The question about the human rights on such territories is of current importance. “The Canadian Human Rights Commission views the social and economic situation of Aboriginal people as among the most pressing human rights issues facing Canada.” (COMMISSION ON HUMAN RIGHTS, 7)
The first step in solving this problem is active participation of aboriginal people in such world known organizations as the Assembly of First Nations, the Congress of Aboriginal Peoples, the Métis National Council, the Inuit Tapiriit Kantami, the Native Women’s Association as well as regional and local councils of chiefs and others.
The end of the 19th and the beginning of the 20th centuries have become a new period in the development of judicial system in indigenous communities. Special lands, the borders of which were determined beginning from 1973 are called “modern treaties” nowadays. Such status of these areas is accepted by some First Nations and by other it isn’t but “in 1999, in its concluding observations on the fourth periodic report of Canada (CCPR/C/79/Add.105) the Human Rights Committee recommended that the practice of extinguishing inherent Aboriginal rights to be abandoned as incompatible with article 1 of the International Covenant on Civil and Political Rights, a recommendation that the Special Rapporteur fully supports.” (COMMISSION ON HUMAN RIGHTS, 7)
It’s obvious that friendly and fair relations between the State and the aboriginal community are the guarantee of the development of the second one and benefits for aboriginal people.
Aboriginal Programs and organizations
Now let’s analyze programs and organizations of aboriginal communities that provide aboriginal justice. Aboriginal policing branch provides the development of policing services suitable for aboriginal people and sponsor a number of special programs for communities such as: RCMP Aboriginal Youth Training Program (AYTP), RCMP/Community Suicide Intervention Program and others. AYTP provides the youth with 17 weeks of employment in summer, which include three training weeks in Saskatchewan and Regina and the further employment is directed by regular members of this organization. RCMP/Community Suicide Intervention Program works on the prevention of suicides. Their five-day program includes suicide intervention training, community development, talking circle and measures to prevent or stop critical situations. “More than 1240 people received training in 49 workshop sessions in locations such as: Happy Valley-Goose Bay, Iqaluit, Terrace, Puvirnituq, Haines-Junction and Inuvik” (McNamara, 163)
Another famous organization is called The Commissioner’s National Aboriginal Advisory Committee (CNAAC). The main aim of this organization is the development of intercultural relations and respect to Aboriginal people, discussions of current questions. The organization is represented by 13 Aboriginal persons that meet twice a year in different communities all over the country.
RCMP First Nations Community Policing Program (FNCPS) includes such components as compatibility to First Nations’ beliefs, accommodation of local varieties if it’s necessary for policy, special service for First Nations-administered police and others. FNCPS is aimed to determine correct relations between the communities and police services. The policy, the community and federal governments co-operate together with the help of this organization. We can’t leave without our attention Community Justice Forums, as their role is very important. Parties have the possibility to voice their concerns and ways of their solution before people, they keep people touched by the crime together. With the help of Community Justice Forums RCMP has become a partner with Justice organization of Canada. Of course, it isn’t the whole list of organizations that act in the aboriginal communities, I’ve mentioned only common commits for practically all local areas. The effectiveness of them is obvious but another problem is that their number is not enough for providing safety for population and normal operation of aboriginal justice.
State and Aboriginal justice
Now it’s time to analyze living conditions of Aboriginal people, as this factor is the best characteristic of the effectiveness of the aboriginal government. Living standards have improved in the last 50 years but it’s still difficult to compare them with living standards on the territory of Canada.
The development of the periphery can’t be higher than the development of the center. The modern situation of local people is characterized by some features: the illnesses are more common and life expectancy is lower; such human problems as family violence and alcohol abuse; the sanitation systems are not normal; few Aboriginal people have permanent jobs, the percentage of prisoners is much higher than in previous years. Accommodation’s problem is also sharp, as the houses are usually overcrowded and flimsy; fewer children go to colleges and high schools.
The sharpest problem of the communities is poverty, because approximately 60 per cent of children are below the poverty line. “Although 83 per cent have year-round road access, 18 per cent live in communities isolated from health services, whereas 20 per cent have inadequate water and sewer systems.” (www.ainc-inac.gc.ca/ch/rcap/.)
Another problem is the shortage of well-built houses, as the territory of every community is pin-pointed and not very large and the population increases every year. More than 10,000 houses don’t have plumbing, one community of four has substandard sewerage. It’s bad side, there is also good. Agreements between the Government and First Nations provide means for repairing and building of new houses for aboriginal people. The unique situation in Quebec community was the reason for extra paying from the Government. It is scheduled to provide all people with accommodation in ten years. The Situation in Nunavut, to my mind, requires special attention, as their social housing units are one of the oldest but the most crowded in Canada. The severe shortage of houses reflects health of people and children in particular. 3,500 new units are going to be built within the next five years. The bad conditions of life are not just in Nunavut, situation is practically the same in most communities. Bad state of health can cause anxiety, suicide, mental diseases or depressions. It’s worth to mention that health, education, suicide, the housing in aboriginal communities have reached their crisis point and the solution of this problems can’t wait. “Statistics say that the gap in life expectancy between Registered Indians and other Canadians is 6.4 years. The rate of tuberculosis is 6 times higher, that of heart disease 1.5 times higher and that of diabetes 4 times higher than among other Canadians.” (COMMISSION ON HUMAN RIGHTS, 11)
Now it’s the right time to analyze the criminal justice system of aboriginal community as human rights and the level of cultural development of people and active position of government is always measured by this system. “The Supreme Court of Canada finds systemic discrimination in the criminal justice system”. (Report to the Special Rapporteur, Native Law Center of Canada, College of Law, University of Saskatchewan, August 2002). Actions of aboriginal governments are limited by the Supreme Government, as on the one hand their local legal systems are recognized by the Constitution and the Supreme Court but on the other hand it’s just an official recognition. To solve this problem, it’s necessary to create an Aboriginal Attorney-General and Native Law Center is now developing this project.
According to statistics the rate of crime is much higher on the territories of Aboriginal communities: the arrest rate is twice as many as in Canada, the rate of incarceration is four times more than the national. “In 1995, the Canadian Centre for Justice Statistics found that Aboriginal people were 5 times more likely to be charged with a crime in Calgary, 10.5 times more in Saskatoon, and 12 times more likely in Regina. While forming only 4.4 per cent of the total Canadian population, Aboriginal offenders make up 17 per cent of federal penitentiary inmates.” (COMMISSION ON HUMAN RIGHTS, 14) The number of crimes has reached its critical point in Manitoba, Alberta and Saskatchewan.
The situation is complicated by the fact that police just don’t always eliminate the threat of crime but commit crimes. A lot of cases of police brutality against the Aboriginal population were noticed. The accident in Saskatoon can show the whole situation with police in most Aboriginal communities. Several Indians, inhabitants of Saskatoon, were found frozen on the outskirts. Some Indians from this company came back home alive and by their words they were caught by police, tortured and left alone on the outskirts. They were under the influence of alcohol and didn’t have warm clothes with them. Among the Indians these seances are called “starlight tours”, their frequency is rather high. Saskatoon isn’t the only region with the cases of police brutality. In Manitoda the cases of such behavior of police were combined with discrimination and racism. In Ontario the cases of death of Indians as the result of police actions took place. Special committees of investigation usually are held and in a such way guilty members of police get their punishment that is rather serious and strict.
First Nations, Métis People are organizations that work in the field of Aboriginal justice, their work is obviously pushing all the judicial system for its further development but it still has a lot of disadvantages. The most important one is that they can’t get rid of racism in police actions and to provide safe life for Aboriginals.
The situation is critical with crimes against women. The Native Women’s Association of Canada tabulate statistics, according to which 500 Aboriginal women have been killed during last 15 years, that means that five times more Aboriginal women come through violent death then other Canadian women. A lot of women are put into Federal prisons. Aboriginal women form 3 per cent of the Canadian women’s population, but at the same time they account 29 per cent in federal prisons. As a result it’s necessary to create a special Aboriginal program for women’s protection.
To come across these difficulties the Aboriginal Justice Strategy decided to contact with Canadian Government and solve this problem, imitating some of Canadian judicial principles, for example. This program provides presentation of Aboriginal people in justice system but they don’t take part in decision-making. It gives a possibility to get rid of cultural misunderstandings between the Aboriginal and Canadian people. The existence of the Aboriginal Justice Learning Network gives chance for Aboriginal communities to communicate with current justice.
The own justice systems of some communities are rather effective, as they have court, legislative development services, mediation, community sentencing and probation. Such kind of system exists in Mohawk.
In 1995 police killed three unarmed rights demonstrators at Ipperwash. This case received publicity. As a result the Government of Ontario started the investigation of circumstances of these deaths. The Human Rights Committee was involved and a judicial inquiry established. The number Of Aboriginal parties took part in this investigation.
Canada refused to take part in this inquiry and claimed it illegal. The reason is that Canada “is constitutionally exclusively responsible for “Indians and lands reserved for Indians”, and whose military confiscation of the Chippewas’ entire reserve lands in 1942 led to the demonstrations” (COMMISSION ON HUMAN RIGHTS, 16) All in all Canada had to give documents relevant to these events and it helped the investigation. This process may be called the first one where Aboriginal communities showed their independence and strength and went against Canada wish.
General Information about Land Claims
Under the land claim we understand a formal statement submitted to the federal and/or provincial government in which an Aboriginal community most often asserts that the Crown has not lived up to its commitments or obligations with respect to Aboriginal or treaty rights pertaining to land.” (Churchill, 85) Land claims is a process initiated by federal government in order to content the rights of the original inhabitants of present Canada. Negotiation between native inhabitants and federal government makes the core of this process. Sometime local communities and territorial governments take part in these negotiations. The process is based on such judicial notions as aboriginal rights, treaties and land title. The main aim of this process is to establish economic and social adjustments between the federal government and original inhabitants. Treaties are historical agreement between Aboriginal people and Crown governments. During multiple wars of the 18th century Great Britain and France entered into military alliances with Aboriginal people and made tries to reach friendship with them. The Royal Proclamation adopted in 1763 reserved the part of Canadian lands for aboriginal people. The same order banned unauthorized purchase and use of these lands by non-native inhabitants. “The British government, followed after 1867 by successive Canadian governments, concluded treaties with various groups of Indian people to legitimate European settlement in their lands.” (Churchill, 89) During many centuries Canada was occupied by immigrants and native people were overshadowed by newcomers and native inhabitants became a minority in comparison with the industrial nation of Canada. In many cases native inhabitants have lost their lands. Some lands were not requested by aboriginal people. People in reservations often felt isolated and cut from the civilized world. Very often they had to live without the access to the most necessary things, without money and food and they had to leave reservation in order to survive.
History of Land Claims
Even those Indians, Metis and Inuit who didn’t sign up treaties, very often found themselves isolated and surrounded by industrial cities. Every aspect of their life was changed with the arrival of settlers to Canada. The process of fight for aboriginal rights lasted from the time first settlers came to Canada. Aboriginal people struggled for their identity, for their rights and lands. The process became especially prominent starting from the 60s of the last century. There were a lot of reasons, which caused such an activity growth. First of all world community expressed great concern about the rights of native population in different countries of the world including Canada. From the other side Canadian treatment of claims of native people became and example for many countries of the world. For example, the USA created the Indian Claims Commission in 1946 and legalized the Alaska Native Claims Settlement in 1971. Technical innovations and quick development let native people become an integral part of the Canadian society and let them enter Canadian society as equals, in contrast to second-class people as they had been treated before. “At the same time, although an imposed education system threatened native languages and cultures, it also prepared young native people to enter and challenge the “white man’s” political and legal system. “ (Churchill, 89)
Australia also adapted Aboriginal Land Rights Act in 1976. Denmark applied homeland rule for Greenland in 1980. There were made attempts to make body familiar to American Indian Claims Commission in Canada but these attempts failed. Two drafts of bills were proposed in 1963 and 1965 but they were recognized as unsatisfactory by Indian people and they were rejected. Lloyd Barber became the commissioner responsible for claims of native people in 1969. With his help the government developed the system of funding for native cultural and political associations. These associations’ main aim was to organize land claims.
Indians from Yukon Territory brought petition concerning the exploration of gas and oil in their haunting lands to Canadian Parliament in 1972. The case was hold in the Supreme Court in 1973 and got the name “Calder Case” but the juries split 3 to 3 making the decision about recognizing the aboriginal land title. Yukon Indian Brotherhood passed the claim to the federal government. “In 1973 Justice Morrow of the NWT recognized the aboriginal title of the Dene of the Mackenzie River Valley and in 1973 Justice Malouf of Québec recognized the title of the Cree and Inuit of Québec. These decisions were later appealed and overturned, but they gave important weight to the native cause”. (MacLachlan, 45)
In 1973 Canadian government announced about the shift in policy concerning aboriginal population. This policy was designed in order to improve the conditions of life of native population of Canada and to accelerate the industrial development of the North. One of the ideas expressed as the part of this policy was taking responsibility and meeting claims of native people and “to negotiate settlements with native groups in those areas of Canada where native rights based on traditional use and occupancy of the land had not been dealt with by treaty or superseded by law.” (Berger, 78) The idea of combined work of both, provincial and territorial government became on of the factors of this policy’s success. In 1975 the government created the Department of Indian and Northern Affairs Canada in order to guarantee the implementation of the new policy.
Comprehensive and Specific Claims
During this time the government has face two types of claims – specific and comprehensive ones. Specific claims are those, which arise on the ground of administration of the Indian treaties, Indian Act or Indian lands. This kind of claims should be decided through negotiations but in the cases when a problem can not be resolved in such a way the case can be passed to the court. Specific claims usually belong to Indians, who live in provinces and most claims ask for composition and land. Comprehensive claims refer to the traditional use of land by Indians, Metis and Inuit who didn’t sign any treaties and were simply displaced from their lands by force. These claims are resolved be negotiation and usually include two territories, and some provinces. “The areas of land and the numbers of native people involved are usually greater than in the case of specific claims. Settlement of these claims comprises a variety of terms including money, land, forms of local government, rights to wildlife, rights protecting native language and culture and joint management of lands and resources.” (MacLachlan, 113)
Progress of Comprehensive and Specific Claims
Now the situation in Canada has changed after two years of negotiation of Aboriginal land claims. A number of agreements between the Aboriginal Community and the government, which deal with economy, politics, international relations and other spheres, were signed and as a result of these agreements we can see improvement of relations and conflict resolution in a lot of questions. The most significant conflict, which attracted international attention, was Oka, Québec, crisis in summer 1990. All in all this conflict was successfully resolved. The progress of Aboriginal claims is obvious in three last decades. It should be mentioned that there are two kinds of claims: comprehensive claims and specific claims. It makes sense to speak about Aboriginal comprehensive claims and their success in Northern and Eastern Canada. In Northern Canada The James and Bay Northern Québec Agreement of the year 1975 was negotiated and after two years of negotiation it was signed by the Gree and Inuit. In the year 1978 the Naskapis of Northeastern Québec joined the negotiations and also signed this agreement. In 1984 together with the Inuvialuit of the Mackenzie Delta the Final companion agreement was signed. “The Inuit of the central and eastern NWT concluded their NUNAVUT Agreement in 1993, and a political accord providing for a new Territory of Nunavut was negotiated concurrently with the land claim. Negotiators for the Dene and Métis of the NWT concluded an agreement in principle but in 1990 a general assembly of Dene and Métis voted not to ratify the agreement” (Berger, 65).
Changes are not so rapid in Eastern Canada. In Eastern Canada the negotiations are still in progress. For example, the claim of the Algonquin of Golden Lake (Ontario)is still under negotiation, same as offshores in Labrador and Québec. An agreement between the Innu Nation of central Labrador and northern Québec and the Labrador Inuit Association was signed to carry on negotiations with the government.
Canada’s experience in the settlement of claims is unique in the world. Of course, not all demands of aboriginal population are satisfied and yet there are a lot of controversial points and problematic situations between aboriginal people and the government, but the progress in their relations is evident. “Comprehensive and specific claims affect most of Canada, and in the case of comprehensive settlements, the combination of land ownership (including some subsurface), compensation funds, specific rights and programs, provisions for joint administration and self-government make the beneficiaries a potentially potent force in the national economy, society and politics” (Churchill, 78). Canada is an old country with stable traditions and way of life, which are formed by the Aboriginal population to a great extent. Canada should lead “clever” policy, signing agreements between Aboriginal communities and giving them possible freedom, but at the same it should maintain sovereignty and promote a strong Canadian identity.
A number of projects and programs have been created in order to improve the living conditions, to get rid of racism and other kinds of discrimination and decrease crime rats among Aboriginal people. The Aboriginal justice system has been improved during last several years but the way to perfect justice system is still very long. Actions taken by Aboriginal governments can’t provide perfect safety for their people, so there’s still much to work on. The programs that exist are good but they require working out. “A number of positive Aboriginal justice initiatives have been undertaken at the federal, provincial and local levels, but it is not clear as yet how far and how successful such policies have actually been.” (COMMISSION ON HUMAN RIGHTS, 21)
All the laws that were created and will be created by the Aboriginal justice system must guarantee safety and piece for the population and this aim is of current importance.
Report to the Special Rapporteur, Native Law Center of Canada, College of Law, University of Saskatchewan, August 2002
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COMMISSION ON HUMAN RIGHTS, Sixty-first session, Item 15 of the provisional agenda, Human rights and indigenous issues, 2004
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