Nettheim, Garth --- "Update: The Osnaburgh / Windigo Tribal Council Justice Review Committee" [1990] AboriginalLawB 48; (1990) 1(47) Aboriginal Law Bulletin 2

• Update The Osnaburgh / Windigo Tribal Council Justice Review Committee

---

Update

The Osnaburgh / Windigo Tribal Council Justice Review Committee

by Garth Nettheim

On July 31, 1990, the Committee presented its report on justice issues, in four First Nations communities in Northern Ontario, Canada.

In its introduction, the Committee notes that one of the events leading to the establishment of the Committee was the arrest, for being drunk, of an Indian who became a quadriplegic between his arrest and release. This incident was followed by criminal proceedings, police disciplinary proceedings, and a civil action for damages which was settled out of court. Calls for a broader inquiry followed.

Under the heading `Overview' the Committee states that the :

"main goal of all [its] recommendations is to ensure thatthe four communities are healthy, strong and vibrant. This can be accomplished by identifying both general and specific objectives. The general ones must, in our view, include recognition of
(a) sovereignty
(b) economically viable land bases; and
(c) the development of aboriginal justice systems, whether traditional or otherwise, for the First Nations people..."

The Report examines the current well-being of the communities in terms of land areas, resources and access, physical conditions in the communities, economic, health, housing, recreational, educational, cultural and a variety of other factors. The account of circumstances in the communities indicate disturbing similarities to many Aboriginal communities in Australia (eg Toomelah). Problems similar to those experienced in Australia are also reported with the non-Aboriginal justice system, and the Committee unequivocally recommends

"the development of a separate, autonomous, preferably constitutionally entrenched native justice system, whether traditional or not." (p37).

The Committee also recommends indigenous control over policing in the communities, through:

"a First Nations police service controlled by a police commission comprising a majority of First Nations members. First Nations police would have authority to enforce Federal, Provincial and First Nations law until the details of sovereignty/self-government are clarified" (pp.48-49).

Conservation laws and their enforcement are also reported to be a source of problems for the communities whose members still continue to practice hunting, fishing, trapping and gathering:

"...we have criminalized the First Nations members time honoured traditional practices and imprisoned people for being unable to pay the fine" (p.52).

The Committee recommends that:

"conservation duties in the north of Ontario ...should be undertaken either by the First Nations police service ... following suitable training, or by conservation officers answerable to a co-management Board which would employ a majority of First Nations members in such work" (p.54).

In a section on `Courts', the Committee notes some of the difficulties for remote communities such as transportation problems and language and understanding court processes. A number of specific recommendations are made, though in the context of a much broader proposition:

"Without more fundamental changes taking place, First Nations community members will continue to be prosecuted and gaoled for maintaining and practising a traditional lifestyle, for being poor and for suffering from the criminal consequences of alcoholism and substance abuse. What is called for is First Nations sovereignty over First Nations territory with the goal of preserving the people, the land and the culture and that must clearly include control over their own justice system" (p.59).

The Report also considers issues relating to corrections such as impris onment for fine default, probation and parole. Another section looks at inquests and Aboriginal deaths.

As noted, much of the picture of the First Nations communities provided by the Report will be depressingly familiar to Australians. The Committee has also made extensive reference to material from Australian sources such as the Aboriginal Legal Services which are regarded as a possible model for Canada.

What is interesting in the new Report however is the fact that the Committee members have not shrunk from placing the problems they perceive in a political context. In discussing the "welter of bureaucracy", Federal and Provincial, with which the First Nations need to deal, the Report poses the question:

"Could it be that, if all the resources ear-marked for First Nations programmes ...were to be pooled and made available to First Nations directly, more of the money would reach the reserves and the communities? Dependency, however, is the problem - not the solution. Only internal political autonomy and economic self-sufficiency will radically alter this depressing pattern.

"In working for the present model towards the new arrangements, it will be essential for the Federal, Provincial and First Nations Governments to work together to recognize the First Nations as responsible and accountable for their own future within Ontario and Canada: a future in which justice-related issues will be dealt with in the much broader context of sovereignty, economically viable land bases and aboriginal justice systems" (p.69).