est Territory and Nunavut considering their high proportion of Aboriginal people), Aboriginal organizations and any other interested and affected parties. The idea is to create sentencing mechanism and sentences for Aboriginal people by Aboriginal people while respecting victims and Aboriginal culture.
The consultation should be done as openly as possible. It should not start with any propositions or requirements. In order to facilitate consultation, government officials will have to travel around the country to ensure that most communities are visited. Stakeholders should be warned in advance of the consultation to allow for an appropriate time to prepare for it. Funds should be made available on a needs basis to allow all stakeholders to meaningfully participate in the consultation process. The consultation team should be largely composed of Aboriginal people, partly government officials and partly independent experts. At the beginning of a consultation, someone should explain the problem of over incarceration of Aboriginal people and the role of sentencing. The consultation would lead to drafting the policy by the consultation team, Department of Justice and Department of Aboriginal Affairs and Northern Development officials not involved in consultation and academics involved in Aboriginal and Sentencing Law. The draft policy should be distributed to relevant stakeholder for last comments. The final policy should serve as the basis of new processes and sentences for Aboriginal people. The policy should also be approved by representatives of Aboriginal Peoples before coming into force. It is further recommended, in order to maximize resources, that during such consultation other aspect of the criminal justice system and Aboriginal Peoples be explored in order to amass information that could be both useful for the drafting of the policy and the creation of other policies and programs on Aboriginal justice.
C. Aboriginal Sentencing in the Hands of Aboriginal Peoples
The last proposed way to address Aboriginal over incarceration through sentencing is to go one step further and acknowledge that not only is the government not well placed and ill-informed to make decisions regarding Aboriginal justice, but that it should not make those decisions in the first place. The proper way to deal with the problem – and in my opinion the only way that truly further ideals of decolonization – would thus be to transfer authority over sentencing, minimally, or over criminal justice, to Aboriginal Courts or other institutions created according to the local custom and culture of Aboriginal Peoples. This would foster the self-determination right of Aboriginal Peoples. Some governing structures are already adequate to establish such Courts such as the Nunavut government or modern Aboriginal treaties governments. Other structures would probably need reforming such as many Indian Band governments (depending on its legitimacy and effective control over community affairs). Some structure would need to be created from scratch (Métis usually do not have effective government). In the end, Aboriginal Peoples should determine what the appropriate structures are. A funding scheme should be established at first to give the ability to Aboriginal communities to implement their new or improved structures. After set up, communities could establish the mode of financing they desire. In certain case the federal government will need to create such a court itself and remain responsible for it, such as in large urban centres. Such courts should be set up only after appropriate and exhaustive consultation of stakeholders, provincial and municipal governments, and members of those communities. Furthermore, the control of such courts should remain in the hand of Aboriginal Peoples.
The transfer to Aboriginal communities of sentencing and/or criminal justice should be enshrined in a treaty in order to give to those transfer constitutional paramountcy. Considering the great diversities of Aboriginal Peoples, these schemes will vary between communities to reflect cus