Aboriginal offenders are disproportionately represented within the current judicial system. They face an adversarial environment that does not understand or represent their needs. This report will review the historical and socio-econornic conditions that altered the Aboriginal way of life, contributing to the high levels of Aboriginal incarceration. It will also examine the concerns Aboriginal peoples have with the present judicial system, will review several Aboriginal justice programs now implemented and will pose issues for further consideration and discussion.


Part I: HISTORICAL FACTORS

Differing Views on Land Ownership

Many of the problems that Aboriginal peoples face with respect to the criminal justice system are influenced by the context of their historical place in colonial and post-confederation Canada.

The original European settlers' capitalist view of land ownership differed greatly from the Aboriginal holistic philosophy in which all things are inter-related and development is viewed as encompassing the following four dimensions: physical; mental; emotional; and spiritualⁱ. The Europeans did not understand the Aboriginal spiritual attachment to their land. First Nations communities considered land to be a gift from the creator, and not simply a commodity. The concept of land ownership was foreign to Aboriginal culture as they could not comprehend owning these lands, and firmly believed that they were provided for the collective use and benefit of all living creaturesⁱⁱ.

Capitalism

At the time of European settlement, a blending of European and Aboriginal capitalism took place. European settlers brought and made available many products never before seen by Aboriginal peopleⁱⁱⁱ. First Nations communities supplied fur for European traders and developed a powerful and lucrative market based on this demand for fur. The European demand for fur significantly altered the way of life for a large segment of the Aboriginal population.

At the same time, the allure of European products and the power of European capitalism brought about sudden changes in the traditional Aboriginal way of life^iv. The acquisition of metal tools allowed First Nations people to hunt and gather more efficiently, in addition to adopting new agricultural practices, ultimately enhancing their productivity^v.

The Europeans thus introduced a new economic order closely resembling the one they had brought from Europe. They introduced production economies, encouraging Aboriginal communities to exploit their resources in exchange for European goods^vi. The infusion of imported products upset the traditional balance that had maintained Aboriginal peoples' self-sufficiency for thousands of years. This was also the first step away from their traditional way of fife, creating a dependency on an array of products external to their natural environment^vii.

Treaties

As Aboriginal people began to recognize the value of their land, they concluded it would not serve their long term interests to part with their assets although they had tremendous value in trade. Unfortunately, the collapse of the fur trade left many bands desperate for income, which, ironically, was needed to purchase products from Europeans. For many Aboriginal communities, the only way to generate essential income was to sell their land to non-Aboriginal settlers.

In the post-Confederation era, the new federal government played a central role in many questionable land transactions. The government repeatedly paid Aboriginal communities low, unfair prices for their lands^viii. For example, the silver mines at Cobalt, which sold for less than $40,000, produced over $206,000,000 in precious metal for the federal government during its first eighteen years of operation^ix.

Although land treaties signed between the federal government and First Nations communities frequently provided the Aboriginal bands with large tracts of land for their use and occupation, the size of these "Indian Reserves" were not guaranteed. Many were reduced in size as more land was needed for non-Aboriginal settlement^x. These treaties did not award fair prices for lands, or grant the money to individuals who best represented the bands' interests.

Colonial Europeans' unfulfilled desire for Aboriginal land eventually led to an institutionalized policy of assimilation after Confederation, as reflected in the Indian Act of 1868. The Act initiated the federal government's responsibility for nearly every aspect of Aboriginal peoples' economic, social, and political lives.

Loss of the Traditional Aboriginal Way of Life

The traditional First Nations way of life was also weakened by several non-economic factors. Aboriginal communities experienced new health problems with the advent of unfamiliar foods, beverages, and diseases^xi. Furthermore, change was brought on by the imposition of foreign cultural and religious values, eventually dominating First Nations communities^xii. Inevitably, the traditional Aboriginal way of life gradually eroded because of powerful outside influences.

Initially, First Nations communities maintained a degree of self-sufficiency amidst these changes. However, the collapse of the fur trade and the end of the buffalo hunts (another traditional activity eliminated by European settlement) created a situation in which Aboriginal communities were unable to participate in the new economy as they had before^xiii. In a few short decades, First Nations people, formerly self-sufficient and autonomous, became dependant on the new economic order^xiv. Future generations of First Nations people grew up dependent on the European way of life and the Aboriginal acceptance of "modern" technology meant the erosion of their habitat, their way of life and their culture.

Education

Aboriginal styles of learning and education were not overwhelming deterrents to survival during the era of the fur trade, as First Nations people displayed astute business skills. However, with the decline of the fur trade and the gradual movement within Canada from an agriculturally based society to one dominated by an urban industrial foundation, formal European sytle education became very important. Unfortunately, Aboriginal people did not possess, and were not in a position to readily acquire new technologies and skills required to make this transition^xv to an urbanized, industrialized lifestyle.

This is partly because the world view and philosophy of the First Nations peoples, and consequently their learning and teaching styles, were so fundamentally different from the European traditions. The understanding of the cyclical nature of life, the view that all things work together simultaneously and interconnectedly, with resultant interdependencies, the need for balance, and the connection with the creative and spiritual world are key elements that underpin the Aboriginal world view. They contrast strongly with the hierarchical, logical, linear and rational viewpoints of most European and many other non-Aboriginal cultures. Cause and effect are not perceived in the same was as in scientific rationalist theory. These factors have significant impact on learning. The challenges and negative impact of such issues on Aboriginal students is compounded by overt and systemic racism within the educational system, poverty and marginalization, and language and other cultural barriers.

Residential Schools

After the adoption of the 1867 Constitution Act, Canada instituted a policy of Aboriginal assimilation, designed to transform Aboriginal communities from "savage" to "civilized"^xvi. Residential schools played a significant role in this "transformation". Canadian law forced Aboriginal parents, under threat of prosecution, to send their children to these schools. The residential schools prohibited the use of Aboriginal languages as well as the observance of their traditions and customs. Restricting children from speaking their language was seen as a key element in "civilizing" them. Some of the schools did attempt to use positive reinforcement to encourage assimilation, but usually children who did not conform were punished, often by beatings.

In addition to this assimilation policy, there were many administrative problems with the residential schools. The majority of the institutions were mismanaged, inadequately funded, provided inferior educational services, and often were unable to attract qualified personnel, as many were isolated and offered low salaries. Staff worked long hours, not only instructing the children, but also supervising their work, recreation and personal care. The stress and fatigue of the residential school environment may have de-sensitized the staff to the children's misery^xvii.

The children were often under-nourished and poorly clothed with several schools viewed as "workhouses", as many children missed classes due to their obligations to work on the school farm^xviii. The 1996 Royal Commission on Aboriginal Peoples observed that the children probably enjoyed a better diet and quality of life before arriving at the residential schools^xix. As a result of their suffering, hundreds of children ran away or died trying, with some resorting to suicide.

One of the most warring aspects of the residential schools was abuse. Mistreatment, neglect, and abuse by the staff were common^xx. The approach of the residential schools has been well-documented: "discipline was curriculum and punishment an essential pedagogical technique^xxi. Children were punished in many ways including beatings by hand or with whips, and/or chained, bound and deprived of food^xxii. Many cases of sexual abuse were also reported.

Unfortunately, Aboriginal communities today are still dealing with the aftermath of the residential school experience. One Aboriginal leader and residential school graduate, George Manuel describes the schools as "the laboratory and production line of the colonial system."^xxiii The 1996 Report of the Royal Commission on Aboriginal Peoples states that the residential schools were not only a tool in the colonialization process but they were also a major force in the marginalization of Aboriginal communities^xxiv.

Summary

The historical problems of many Aboriginal peoples stem directly from assimilation, which fundamentally changed the economic, political and social life - indeed the very culture - of First Nations people. Assimilation policies were based partly on the European belief that Aboriginal people were uncivilized and incapable of governing themselves. As a result of the devaluation of their language, traditions, and customs after this experience, Aboriginal people began to suffer cultural uncertainties. This cultural crisis can be linked to specific internal problems that currently plague Aboriginal communities including disproportionate levels of Aboriginal incarceration, poverty, unemployment, alcohol abuse, domestic violence, and an absence of economic self-sufficiency and business infrastructure.  
 

ⁱDavid R_ Newhouse, "Modem Aboriginal Economics: Capitalism with an Aboriginal Face, (1993), in National Round Table on Economic Development and Resources in Royal Commission on Aboriginal Peoples (Ottawa, April 27-29, 1993) at 7.
ⁱⁱLester Lafond, "Historical Use of Land and Resources Past and Present", in National Round Table on Economic Development and Resources in Royal Commission on Aboriginal Peoples supra note I at 4.
ⁱⁱⁱStephen Cornell, 77je Return of the Native: American Indian Political Resurgence, (New York:  Oxford University Press, 1988) at IS.
^ivLafond, supra note 2 at 5.
^vLafond, supra note 2 at 6.
^viIbid. at 5.
^viiIbid
^viiiDel Anaquod, "Education, Training, Employment, and Economic Development", National Round Table on Economic Development in Royal Commission on Aboriginal Peoples, supra note I at 3.
^ixIbid. at 4.
^xFrideres, supra note 5 at 85.
^xiIbid.
^xiiIbid.
^xiiiIbid. at 8.
^xivLafond, supra note 2 at 9.
^xvFrideres, supra note 5 at 8.
^xviReport of the Royal Commission on Aboriginal Peoples, vol. 1, (Ottawa: Canada Communication  Group, 1996) at 333.
^xviiOp.cit. at 367.
^xviiiIbid. at 360.
^xixIbid.
^xxIbid. at 337.
^xxiIbid. at 366.
^xxii3 1. Ibid. at 3 69.
^xxiiiIbid. at 335.
^xxivIbid. at 334.