r 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 customs, culture and environment. It is however impossible to determined what they would look like and how they would function in advance. This solution would have the advantage of giving legitimacy to sentencing regime for Aboriginal people and make them responsible for their own justice, and would largely comply with the goals of the United Nations Declaration on the Rights of Indigenous Peoples and self-determination rights. This solution would however remain a partial one as long as other aspects of Aboriginal governance are not in the hands of Aboriginal Peoples. Effective self-governance is, in my opinion, the only sustainable and holistic solution for Aboriginal over incarceration and for remedying the effects of colonization.
Aboriginal Affairs and Northern Development Canada, “Aboriginal Peoples and Communities”, online: www.aadnc-aandc.gc.ca < http://www.aadnc-aandc.gc.ca/eng/1100100013785/1304467449155 >.
ADJIN-TETTEY, Elizabeth, “Sentencing Aboriginal Offenders: Balancing Offenders’ Needs, the Interests of the Victims and Society, and the Decolonization of Aboriginal Peoples” (2007) 19 Can J Women & L 179.
ARMITAGE, Andrew, Comparing the Policy of Aboriginal Assimilation: Australia, Canada and New Zealand (Vancouver: UBC Press, 1995).
BALA, Nicholas, Youth Criminal Justice Law, 2nd ed (Toronto: Irwin Law, 2009).
BARNETT, Laura, et al, Legislative Summary – Bill C-10, (Ottawa: Library of Parliament, 2012).
BOE, Roger E., “Aboriginal inmates: Demographic trends and projections” (2000) 12(1) Forum on Corrections Research 7, Correctional Service of Canada.
Canadian Corrections Association, Indians and the Law (Ottawa: Queen’s Printer, 1967).
CHARTRAND, Larry N, “Aboriginal Peoples and Mandatory Sentencing” (2001) 39 Osgoode Hall LJ 449.
FRIEDLAN, Hadley, “Different Stories: Aboriginal People, Order, and the Failure of the Criminal Justice System” (2009) 72 Sask L Rev 105.
GRAMMOND, Sébastien, Aménager la Coexistence – Les Peuples Autochtones et le Droit Canadien (Cowasville (QC): Éditions Yvon Blais, 2003).
