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McNamara, Luke --- "Autonomy-Based Solutions and Criminal Justice Reform - a Comparison of the Recommendations of the Australian Royal Commission into Aboriginal Deaths in Custody and the Aboriginal Justice Inquiry of Manitoba" [1992] AboriginalLawB 3; (1992) 1(54) Aboriginal Law Bulletin 4


Autonomy-Based Solutions and Criminal Justice Reform -
a Comparison of the Recommendations of the Australian Royal Commission into Aboriginal Deaths in Custody and the Aboriginal Justice Inquiry of Manitoba

by Luke McNamara

Introduction

In May 1991, the National Report of the Royal Commission into Aboriginal Deaths in Custody,[1] (RCIADIC) was tabled in Parliament.

In Manitoba, a similar report was motivated by concern over the circumstances surrounding the deaths of two Aboriginals: Helen Betty Osborne in 1971 and J.J. Harper in 1988.[2] The Report of the Aboriginal Justice Inquiry of Manitoba[3] (AJI) was released in August 1991.

A comparison of the major findings and recommendations of the reports reveals two substantially different responses to the massive over-representation of Aboriginal people in the criminal justice system.

In Australia, the research unit of the RCIADIC found that:

In Manitoba, research for the AJI revealed that:

Both reports take a similar stand in relation to the need for extensive reforms to. justice systems currently plagued by institutionalised racism and discrimination. However, their key point of departure relates to the level of autonomy which they advocate for Aboriginal peoples in the context of justice administration, and in the wider context of Aboriginal political status.

Key Recommendations: Australia

The Specific Issue of Deaths in Custody

The RCIADIC made recommendations dealing with procedures for police investigations and coronial inquiries into custodial deaths, the need for uniform collection of statistics on persons in custody, and detailed recommendations relating to custodial conditions and treatment of detainees.

Aboriginal Contact with the Criminal Justice System

The Commission made recommendations designed to reduce the rate and impact of Aboriginal arrest and incarceration. Police training and methods received attention, particularly in relation to the use of para-military forces.

Several recommendations reflected the aim of diverting Aboriginals from police custody, including legislative amendments to facilitate greater access to bail. Community policing strategies were encouraged, particularly those involving Aboriginal participation. It recommended that community justice proposals receive adequate funding and that the Australian Law Reform Commission's recommendations on the recognition of customary law be implemented.[12]

The RCIADIC made recommendations based on "the principle that imprisonment should be utilised only as a sanction of last resort."[13] These included: proposals for the training of Court, Probation and Parole Service Officers in Aboriginal society, customs and traditions; the consultation of community members before determining sentence in cases where the defendant is from a remote community; expansion of noncustodial sentencing options and of pre-release and post-release support schemes; and the encouragement of Aboriginal community participation in community service programs.

There were also recommendations stressing the value of detaining persons in a prison close to families wherever possible; encouraging the maintenance of kinship and other family obligations; providing a more adequate and accessible complaints procedure; and increasing the availability of skills training and general educational facilities.

Underlying Issues

The RCIADIC made broad policy recommendations and particular program proposals to improve the prospects of Aboriginal youth, and to encourage strategies for dealing with Aboriginal health (including excessive alcohol consumption and drug dependence), educational opportunities and the state of housing and infrastructure in Aboriginal communities.

In the context of these 'underlying issues', it stressed the importance of Aboriginal political activity and economic self-management and in particular recommended:

"That government negotiate with appropriate Aboriginal organisations and communities to determine guidelines as to the procedures and processes which should be followed to ensure that the self-determination principle is applied in the design and implementation of any policy or program which will particularly affect Aboriginal people."[14]

Formal recognition that self-determination is "central to the achievement of the profound change which is required in the area of Aboriginal affairs", along with the emphasis on "addressing land needs"[15], represent significant features off the recommendations. The Commission's apparent acceptance that criminal justice issues cannot be dealt with in the abstract, but must be considered as part of the broader problem of the relationship between Aboriginals and the wider society, represents a significant break with traditional 'Aboriginal affairs' policies. The difficulty is that little agreement exists as to the definition of self-determination and the processes available to implement it.

While describing self-determination as an 'evolving concept', the RCIADIC identifies a 'solid core of common ground' which covers three 'crucial points':

"1. That Aboriginal people have the control 'over the decision-making process as well as control over the ultimate decisions about a wide range of matters including political status, and economic, social and cultural development.'
2. That for Aboriginal people 'an economic base is provided to the indigenous self-determining people.'
3. The Aboriginal right to make the choice as between the 'spectrum of possibilities' in terms of political status [although this is limited by the Standing Committee to within the legal structure common to all Australians]."[16]

The RCIADIC has attempted to reconcile divergent positions on the degree of political autonomy and self-government which the principle of self-determination provides.

Unfortunately, where specific recommendations confronting the question of criminal justice administration along these lines were needed, the Commission retreated to the broad policy level. Having placed the fundamental problem of Aboriginal over-representation in the criminal justice statistics within the context of a denial of political autonomy, it is disappointing that it refused to take the next step. It refrained from endorsing any significant exercises of Aboriginal autonomy in terms of justice administration. Perhaps this is the greatest disappointment of a Commission which held the promise of signalling a new stage in Aboriginal/non-Aboriginal relations.

Key Recommendations: Manitoba

Specific Recommendations Relating to the Deaths

The All made specific conclusions and recommendations dealing with the deaths of Helen Betty Osborne and J.J. Harper.[17] It was critical of the conduct of the Royal Canadian Mounted Police (RCMP) in relation to the former incident and of the Winnipeg Police Department regarding the latter. On a broader level, both were condemned for racist policing practices and inadequate investigation and review strategies.

The AJI made recommendations regardingn the investigation of the death of Helen Betty Osborne, including that: supervision by senior police officers be mandatory in the investigation of serious crimes; interviews with key witnesses be carried out by lawyers according to guidelines that protect the lawyer and inspire public confidence in the interview's propriety; supervision by senior Crown Attorneys be mandatory in the case of serious crimes; in relation to prosecutions by Crown Attorneys, policy guidelines be followed including uniform principles in relation to the completion of agreements of immunity with Crown witnesses; and the Crown should end its practice of declining to consider further charges after an acquittal of murder.

The AJI concluded that "Betty Osborne would not have been killed if she had not been Aboriginal",[18] and also considered whether the case would have come more quickly to a conclusion if more Aboriginal persons were in the police or Crown Prosecutor's office.

The AJI's investigation into the police shooting of J.J. Harper led it to conclude that:

"...it was [Constable] Cross, through his unnecessary approach and inappropriate attempt to detain Harper, who set in motion the chain of events which resulted in Harper's death."[19]

And, in relation to the subsequent internal investigation, that:

....the City of Winnipeg Police Department did not search actively or aggressively for the truth about the death of J.J. Harper. Their investigation was, at best, inadequate. At worst, its primary objective se[20]ems to have been to exonerate Const. Robert Cross and to vindicate the Winnipeg Police Department."[21]

The AJI recommended that "[p]roper and more independent methods of investigating officer-involved shootings must be instituted immediately ... "[22] and that an inquest procedure be created, that ensures "public proceedings at which the family and community learn the material circumstances of the unexplained death."[23]

The Justice System and Aboriginal People

The AJI's more lengthy report on The Justice System and Aboriginal People painted a grim, but realistic, picture of 'systemic discrimination' and a consistent failure to take account of the cultural differences of Aboriginal people:

"Historically, the justice system has discriminated against Aboriginal people by providing legal sanction for their oppression. This oppression of previous generations forced Aboriginal people into their current state of social and economic distress. Now, a seemingly neutral justice system discriminates against current generations of Aboriginal people by applying laws which have an adverse impact on people of lower socio-economic status. This is no less racial discrimination; it is merely 'laundered' racial discrimination".[24]

In advocating 'reforms' to the criminal justice system, the AJI's response paralleled, in some respects, that of the RCIADIC. There are, however, substantial differences, characterised by a greater willingness to endorse autonomy-based solutions. The AJI's 'Strategy for Action" includes reforms to the criminal justice system in the following areas:

(a) Policing

The AJI concluded that:

"the future of Aboriginal policing in Manitoba lies in the creation of Aboriginal controlled police forces for Aboriginal communities and in increasing the numbers of Aboriginal police officers on existing forces."[25]

In relation to the first objective, the AJI made the recommendation that "[a]s soon as possible, Aboriginal police forces take over from the RCMP the responsibility for providing all police services in Aboriginal communities."[26]

To achieve the second objective, the AJI called for: the adoption of a community policing approach; employment equity programs to increase numbers of Aboriginal police officers to a level equivalent to the Aboriginal proportion of the Manitoba population; improvement in the cross-cultural education components of police training courses; and screening out of police displaying racist attitudes.

In relation to police investigation and interrogation procedures, it recommended that: "[t]he courts adopt the Anunga Rules of Australia, as rules of the court governing the reception into evidence of statements to police made by Aboriginal persons",[27] and that all statements taken by police officers be recorded using audio or video equipment.

Finally, it confirmed the need for a more effective and independent review procedure for consideration of public complaints and also for investigation of serious incidents involving police.

(b) Courts

The AJI recommended that: adequate facilities be available so that all trials can be held in the community where the alleged offence was committed; Aboriginal community members be employed as court staff; and traditional Aboriginal dispute resolution techniques be adopted to avoid the formal adjudication process. It also recommended significant changes to the jury selection process, including introduction of procedures designed to ensure, as far as possible, that jurors are drawn from the community or neighbourhood in which the trial is to be held, and/or in which victim and accused reside.

(c) Sentencing

Like the RCIADIC, the AJI felt that incarceration should be used only as a last resort. It stressed that where the incarceration of an Aboriginal person is necessary, the sentence should be carried out in a culturally relevant and community-based facility. It recommended that Canada's Criminal Code be amended to give formal recognition to the relevance of cultural values when sentencing, and to allow judges to designate the specific place of custody for offenders. Further, it suggested that Aboriginal communities should be invited to express their views on any case involving one of their members.

(d) Prisons

The AJI called for a reduction in the number of Aboriginal people in jail and the overall capacity of the jail system. Further, it recommended: a change in the system's obsession with security; greater access to active employment within the prison system, or training, education and counselling programs; and the adoption of a formal policy by government and prison authorities guaranteeing the right of Aboriginal people to culturally appropriate spiritual services, both within and outside prisons.

Aboriginal Self-Government and Aboriginal Justice Systems.

Perhaps the most significant of the recommendations, however, are those that go beyond seeking merely to amend existing justice structures and policies and attempt to support genuine independence for Aboriginal people. For the AJI, the appropriate response to undeniable evidence of Aboriginal suffering at the hands of an imposed system of 'law and order', was to recommend that Aboriginal people be empowered to establish their own justice systems. This initiative is conceived as forming a significant component of the wider objective of formally recognised Aboriginal self-government. According to the AJI, "Aboriginal self-government means the right of Aboriginal communities to run their own affairs within their own territory."[28] Significantly, 'Aboriginal affairs' is not limited to politically uncontroversial or traditionally accepted heads of power, but includes the right of Aboriginals to establish their own constitutions, civil and criminal laws, and institutions of government.

Clearly, the All Report advocates a level of Aboriginal autonomy that is unprecedented since the arrival of the non-Aboriginal regime. It recommends that Federal and Provincial Governments recognise the right of Aboriginal self-government by constitutional amendment.

Indeed, the Mulroney Government has recently announced a constitutional reform package which includes a proposal for the formal recognition of Aboriginal self-government within 10 years. It is within this context that the AJI Report has presented its key recommendation:

"Aboriginal justice systems should be established in Aboriginal communities, beginning with the establishment of Aboriginal courts. We recommend that Aboriginal communities consider doing so on a regional basis, patterned on such systems as the Northwest Intertribal Court System [in Washington, USA]... We suggest that Aboriginal courts assume jurisdiction on a gradual basis, starting with summary conviction criminal cases, small claims and child welfare matters. Ultimately, there is no reason why Aboriginal courts and their justice systems cannot assume full jurisdiction over all matters at their own pace."[29]

Of each of the recommendations made in the Australian and Canadian reports, the call for the establishment of comprehensive justice systems in Aboriginal communities.[30] represents the most radical response to the reality of the Aboriginal experience. This position was reached by the AJI after a detailed analysis of a range of issues, including: Aboriginal concepts of justice and traditional dispute resolution strategies; the operation of tribal courts in the USA; the limited and disappointing history of the Indian Act, section 107 courts in Canada[31]; the legal bases for the establishment of Aboriginal justice systems; the difficult questions of jurisdiction; and suggestions for the structure of the system.

With respect to the last issue, the AJI recommended a high degree of flexibility to allow individual Aboriginal communities to develop "culturally appropriate rules and processes"[32] in a less formal courtroom environment. The essence of the proposal is that every component of the justice system operational within an Aboriginal community be controlled by Aboriginal people.

Because of the relatively small size of many communities in Canada, a regional network - allowing several communities to share facilities and resources - is recommended, and the model suggested is the Northwest Intertribal Court System which provides court services to 16 tribes in one region of the state of Washington.

In terms of the legal basis of the proposed Aboriginal justice systems, the AJI discussed a range of possibilities before settling on the 'treaty-based' option preferred by the Assembly of Manitoba Chiefs, namely:

"Federal-Indian negotiations leading to a recognition of the right of Aboriginal people to establish and maintain Aboriginal courts as an aspect of the 'existing treaty and aboriginal rights of the aboriginal peoples', as recognised and affirmed by section 35 of the Constitution Act 1982."[33]

Significantly, this approach places the justice system proposal firmly within the context of Aboriginal self-government. The basic point of identification is with the immediate political aspirations of the Aboriginal peoples of Canada, rather than with the policies of assimilation and paternalism that have historically informed criminal justice 'reforms'.

Conclusion

The point of this comparison is not to simplistically criticise the RCIADIC for failing to endorse for Australia's Aboriginal people a separate justice system. While there are strong grounds for comparing the conditions of the Aboriginal people of Australia and Canada, their situations are clearly not identical. For eg., in Manitoba, 63% of status Indians and 37% of all Aboriginal people live on 102 land reserves throughout the province. This distribution, along with the more highly organised system of bands and Aboriginal governments in Canada reflect a level of formal community adhesion that has no direct equivalent in many parts of Australia, and which makes difficult questions - such as issues of criminal jurisdiction – somewhat easier to resolve.

What is revealed by the comparison is the underlying need to recognise that Aboriginal people are entitled to exercise a genuine degree of. autonomy in all areas that affect their lives. While the RCIADIC was prepared to acknowledge this in an abstract way, its concrete proposals in the area of criminal justice reflect the traditional tendency of nonAboriginal Australia to place limitations on what are thus erroneously referred to as policies in Aboriginal affairs based on 'selfdetermination'. That is not to say that the transfer back to Aboriginal people in Manitoba, and perhaps the rest of Canada, of matters dealt with for the last 200 years by the non-Aboriginal justice system, will be speedy, simple or painless. The proposal does, however, represent an encouraging practical step towards the ultimate goal of Aboriginal self-determination, including autonomy in justice administration and dispute management.

In Australia, Aboriginal people still await such a transfer from an official endorsement of self-determination at the broad policy level, to the point where Aboriginal communities truly exercise the level of autonomy which they are routinely promised.


[1] Johnston, E., Royal Commission into Aboriginal Deaths in Custody - National Report. Australian Government Publishing Service, Canberra, 1991 (hereafter RCIADIC National Report).

[2] See Chartrand, P., "Manitoba's Aboriginal Justice Inquiry: 1988-1990', Aboriginal Law Bulletin, Vol. 2, No. 42, February 1990, p18.

[3] Hamilton, A.C., & Sinclair, CM., Report of the Aboriginal Justice Inquiry of Manitoba. Public Inquiry into the Administration of Justice and Aboriginal People, Winnipeg, 1991.

[4] McDonald, D., Notional Police Custody Survey August 1988. Research Paper No. 13, National Report, RCIADIC, Canberra, 1990.

[5] Bites, D., Aboriginal Imprisonment -A Statistical Analysis. Research Paper No. 6, RCIADIC, Canberra 1989. Other studies have concluded that Aboriginals are as much as 28 times more likely to go to prison than nonAboriginals: see Munro, L., & Jauncey, G., Keeping Aborigines Out of Prison: An Overview, a paper presented on behalf of the National Aboriginal and Islander Legal Services Secretariat at the' Keeping People Out of Prison' Conference, Australian Institute of Criminology, 27-29 March 1990.

[6] Biles, D., McDonald, D., & Flemming, J., "Aboriginal and Non-Aboriginal Deaths in Custody', 23 Australian and New Zealand Journal of Criminology, 1990, p.15.

[7] Hamilton, A.C., & Sinclair, C.M., Report of the Aboriginal Justice Inquiry of Manitoba. Volume 1: The justice System and Aboriginal People. Public Inquiry into the Administration of Justice and Aboriginal People, Winnipeg, 1991 (hereafter AJI Report Vol 1).

[8] Ibid, p.102.

[9] Ibid, p.221.

[10] Ibid, p.103.

[11] Ibid, p392, based on data in Correctional Services of Canada, Basic Facts About Corrections in Canada. Supply and Services Canada, Ottawa, 1996.

[12] Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No. 31. Australian Government Publishing Service, Canberra, 1986 (hereafter ALRC Report).

[13] RCIADIC National Report, Vol 3, p.64.

[14] Ibid, Vol 4, p.7.

[15] Ibid, Vol 5, Ch 37.

[16] Ibid, Vol 2, pp.508-509.

[17] See Hamilton, A.C., & Sinclair, CM., Report of the Aboriginal Justice Inquiry of Manitoba. Volume 2: The Deaths of Helen Betty Osborne and John Joseph Harper. Public Inquiry into the Administration of Justice and Aboriginal People, Winnipeg, 1991 (hereafter All Report Vol 2).

[18] Ibid, p.98.

[19] Ibid, p.39.

[20] Ibid, p.12.

[21] Ibid, P.114

[22] Ibid, p.84

[23] AJL Report Vol 1.

[24] Ibid, p.100.

[25] Ibid, p.645.

[26] Ibid, p.609.

[27] Ibid, p.608.

[28] Ibid, p.641.

[29] All Report Vol 1, p.642.

[30] That is, First Nations on their own geographically defined reserves, and those Mails communities which can be identified as such by agreement between the Manitoba Mails Federation and the Government of Manitoba.

[31] Section 107 courts have operated in a similar manner to the much criticised Aboriginal court system which operates on Aboriginal 'trust areas' in Queensland.

[32] AJL Report Vol 1, p.315.

[33] Ibid, p311.


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