First Nations priorities chapter

The First Nations chapter of the Indigenous Justice Strategy seeks to identify and provide specific First Nations’ priorities. It is acknowledged that First Nations and Canada will need to collaborate with provincial and territorial governments to successfully advance the following priorities on a regional basis to effect long-term and sustainable positive change. The First Nations chapter is a fully integrated section of the Indigenous Justice Strategy that will be implemented in tandem with shared priorities and actions and may also inform the way in which shared priority actions are implemented – for greater certainty, neither supersedes the other as they are meant to be complementary. The First Nations chapter of the Indigenous Justice Strategy is meant to be evergreen, allowing for agreed upon adjustments and periodic updates depending on identified needs.

The first part of the First Nations chapter sets out the relationship structure, including two main overarching foundational themes on which this chapter is rooted:

The second section of the First Nations chapter provides the substance of what interventions are necessary. These priorities are meant to provide a starting point for First Nations to prioritize on a regional basis what is most needed to serve their people. The First Nations chapter provides a framework for two complementary paths:

As part of the work to reform the Canadian criminal justice system, the First Nations chapter explores four different directions for reform:

Finally, the First Nations chapter is inclusive of Indigenous Treaty Partners and Self-Governing Indigenous governments and recognizes that Treaty Partners and Self-Governing Indigenous Governments have a unique relationship with Canada and provinces and territories because of their Treaties and agreements, which must guide Treaty Partners’ approach. This unique relationship will help guide the implementation of the Indigenous Justice Strategy and the First Nations chapter.

Collaborative relationship and accountability

The Collaborative relationship and accountability priorities listed below provide guidance on relationships and governance involved in overseeing implementation. They are dedicated to advancing the objectives of the Indigenous Justice Strategy.

Evaluation and performance management of the Indigenous Justice Strategy and First Nations chapter is key to determining the effectiveness of the priority actions. Quantitative data can help provide an impartial metric to understand the impact of policy changes, while qualitative data can help provide insight into the nuances of why some policy changes may be more effective than others, avoiding focus only on a cost-benefit analysis.

Additionally, First Nations are at various levels of readiness and work to implement the Indigenous Justice Strategy and the First Nations chapter will be informed by these considerations. As such, any evaluation tools will need to account for difficulties in comparison.

  1. Partner with First Nations, provinces and territories, to take a distinctions-based and self-determined justice approach to regional implementation of the Indigenous Justice Strategy and First Nations priorities.
  2. Consistent with Priority Action 2 of the Indigenous Justice Strategy, partner with First Nations, and collaborate with provinces and territories as applicable, through regionally-based Federal-First Nations bilateral or trilateral tables to develop plans of action to implement the Indigenous Justice Strategy and First Nations chapter.
  3. Seek to allocate resources and administrative support for such regional trilateral tables or bilateral tables.
  4. Partner with First Nations, provinces and territories to develop indicators to measure progress for the implementation of the Indigenous Justice Strategy and First Nations priorities, such as a performance management framework, informed by disaggregated data including gender-based and distinctions-based, to provide regular or cyclical assessment.
  5. Partner with First Nations, provinces and territories to develop ongoing cultural training for justice system practitioners to improve awareness of and sensitivity to the history, culture and circumstances of First Nations people, including the ongoing effects of colonialism and the unique circumstances of First Nations individuals with intersecting identities, such as 2SLGBTQQIA+ people.

Long-term and predictable funding

The Indigenous Justice Strategy seeks to build upon existing programs and supports in order to address the overrepresentation of First Nations in the justice system and to support the revitalization of First Nations laws and legal systems. First Nations advocate that any future funding to support the Indigenous Justice Strategy and First Nations chapter must enhance current funding and respect the need for long-term, predictable and adequate funding for First Nations justice programs, and that this is essential to fully support the work being done.

  1. Seek funding frameworks related to the First Nations chapter that include wrap-around services, prevention, alternative justice, safe spaces in communities, community wellness, diversion, and post-sentencing care. Explore new funding models that provide flexible, predictable, and community-controlled funding with reduced administrative burdens in the application and reporting processes.
  2. In consultation and cooperation with First Nations, undertake a regionally focused First Nations justice needs and costing analysis and environmental scan of existing services and programs to identify gaps and needs for future service and program funding.
  3. In consultation and cooperation with First Nations, seek to expand existing justice programs and initiatives, and explore creating new programs and initiatives, that are designed and delivered by First Nations and First Nations organizations for First Nations people.
  4. Explore the application of Justice Canada funding models to provide for institutional needs, including infrastructure.

Path one: revitalization of First Nations laws and legal systems

Path one involves retracing the footsteps of First Nations ancestors, gathering the knowledge of First Nations Elders and Knowledge Keepers and where appropriate, First Nations legal experts, and sharing information among First Nations, to guide the way forward. This path seeks the recognition of First Nations’ legal systems and jurisdiction in relation to the administration of justice, including the enforcement, prosecution and adjudication of First Nations laws.

  1. Consult and cooperate with First Nations on potential changes to federal policy and fiscal frameworks to support the negotiation and implementation of tripartite or bilateral agreements to facilitate adequate and effective enforcement, prosecution, and adjudication of First Nations laws.
  2. Partner with First Nations to develop measures to support First Nations-led research, knowledge exchange, and capacity-building to revitalize First Nations laws and legal traditions.
  3. Create guidelines for appropriate criminal justice system responses to First Nations land and resource protection which respects First Nations traditional laws and responsibilities.
  4. Consult and cooperate with First Nations on potential legislative options to recognize and enable the exercise of First Nations’ jurisdiction in relation to administration of justice, which could include options for a legal framework to enforce, prosecute and adjudicate First Nations laws, through the Canadian justice system at the discretion of First Nations.

Path two: reforming the Canadian criminal justice system

The overrepresentation of First Nations in the criminal justice system is a serious and complex issue rooted in systemic racism and the legacy of colonialism. A fulsome, comprehensive 360-degree review of existing practices will support an effective reform of the Canadian criminal justice system.

Accordingly, path two looks to reform the Canadian criminal justice system while reflecting First Nations views, such as walking the circle in all four directions. This path outlines access to justice themes in four directions:

Direction one: justice and wellness

First Nations recognize that justice and wellness are very much interrelated; as such, the concept of justice must be viewed broadly to include all aspects of health and wellbeing of individuals, communities, and the environment. Interventions to address the overrepresentation of First Nations peoples must begin from a place of prevention, whereby trauma and healing supports, youth programming, and cultural connection are prioritized. The premise of this work is to seek to ensure wrap-around supports are available for First Nations individuals within the justice system at every point of contact, including: while they are before the Court, participating in a diversion program, while in custody on remand, serving sentence in the community or in a custodial institution, and post-release from custody.

Considering justice as wellness means that, when First Nations are before the justice system, it is necessary to go deeper than the surface, to identify individual needs and factors which may have brought them before the courts (Gladue factors) and link them up with appropriate supports, in a manner that is inclusive of First Nations individuals with intersecting identities such as 2SLGBTQQIA+ people. First Nations individuals before the court may be dealing with various challenges including mental health and addictions, Fetal Alcohol Spectrum Disorder (FASD), poverty, lack of housing, and trauma.

Wrap-around supports must also be available to First Nations individuals who are impacted by crime, including victims of violence and survivors, and families of missing and murdered First Nations peoples. Overall community safety is also a key component of justice and wellness.

  1. Partner with First Nations, and provinces and territories, to research, seek to develop, or expand the use of distinctions-based and culturally-tailored programming to support First Nations justice processes that promote rehabilitation and healing.
  2. Partner with First Nations, and provinces and territories, to seek to expand access to culturally responsive, First Nations community-led, trauma-informed victims services and supports, including support for the families of missing and murdered First Nations women, girls, gender diverse people, men and boys.
  3. Partner with First Nations, and provinces and territories, to seek to develop strategies to expand hiring of First Nations Elders and Knowledge Keepers to work within justice institutions to provide First Nations with culturally appropriate support when interacting with the justice system.
  4. Seek to support, in partnership with provinces and territories, Indigenous Community Justice Centres to provide culturally sensitive wrap-around supports, such as referrals to address social determinants of justice, with particular attention to addictions, mental health, FASD, Child and Family Services involvement, sexual exploitation, and gang-involvement.
  5. Partner with First Nations, and provinces and territories, to explore options to expand control and access to community-run alternative measures pre and post sentencing for First Nations people in the Canadian justice system to support culturally appropriate justice responses, healing, and wellness.
  6. Partner with First Nations, and provinces and territories, to explore options for 2SLGBTQQIA+ peoples to have access to low-barrier support services and cultural supports when interacting with the justice system.

Direction two: policing reform

First Nations have expressed that they are overpoliced in urban areas, underserved or receive inadequate services by police in some communities, particularly on reserve and in remote communities, and that First Nations police services are underfunded.

Building trust and creating partnerships between police services and First Nations communities are essential to improving outcomes and fostering a more respectful and equitable justice system. This is particularly important in the context of MMIWG2S+ and how police services respond to survivors and families, and for how they investigate missing and murdered First Nations women, girls, and 2SLGBTQQIA+ people. In particular, building trust and creating partnerships with 2SLGBTQQIA+ communities are essential to improving outcomes and fostering a more respectful and equitable justice system.

  1. Partner with First Nations, and provinces and territories, to seek to support access to culturally responsive policing, notably by building respectful working relationships between police services and First Nations through increasing cultural knowledge and understanding history of the First Nations being served.
  2. Partner with First Nations, and provinces and territories, to seek to develop standard protocols, policies and practices for police services, with the objective of ensuring that cases reported by First Nations people, especially in cases of MMIWG2S+, are thoroughly investigated.
  3. Partner with First Nations, and provinces and territories, to explore options to create civilian First Nations advisory committees for police services or police divisions to advise detachments serving First Nations peoples.

Direction three: corrections and conditional release

Corrections and conditional release are downstream criminal justice processes whereby First Nations individuals who have end up incarcerated due to a constellation of social-economic factors, systemic inequality, discrimination, and lack of supportive services, are overrepresented and require meaningful supports.

  1. Partner with First Nations, and provinces and territories, to develop measures to support culturally informed wrap-around supports for First Nations people at every point of contact with the justice system. This could include supports from initial police contact to remand and bail processes, sentencing, incarceration, conditional release processes and post-release, as well as supports to victims’ and offenders’ families.
  2. Explore the development of a long-term and equitable funding model for existing and future community-led section 81 healing lodges.
  3. Partner with First Nations, and provinces and territories, to explore the delivery of community-administered correctional services, including those delivered by First Nations governments or representative organizations.
  4. Partner with First Nations, and provinces and territories, to identify culturally safe and appropriate approaches to correctional institutions policies, including the security classification process, to eliminate barriers and address systemic discrimination. As a first step, this could include a review and report on existing systems.
  5. Partner with First Nations, and provinces and territories, to develop an approach to decarceration within the justice system. This could include developing a First Nations decarceration strategic framework.
  6. Partner with First Nations, and provinces and territories, to support First Nations individuals who wish to exit gang life.
  7. Partner with First Nations, and provinces and territories, to conduct a review and develop national standards on the production of Gladue reports.

Direction four: legislative reform

Legislative reform is another key area on the path to reforming the existing criminal justice system. First Nations leaders and organizations have expressed their commitment to work alongside all levels of government on legislative options, including to create new legislation, address existing legislative issues or gaps, and amendments to existing legislation.

Through the impacts of colonialism First Nations have faced significant harms including racism and discrimination, disproportionate impacts, cultural and language impacts, and threats to individual and collective rights. As a result of the colonial roots of Canadian laws, there is deep mistrust that current legislation will not respect the rights of First Nations, including human rights. Legislative reform should ensure that laws are consistent with the United Nations Declaration on the Rights of Indigenous Peoples.

  1. Consult and cooperate with First Nations on legislative options to create, review or amend legislation to address systemic discrimination against, and overrepresentation of, First Nations within the Canadian justice system.
  2. Consult and cooperate with First Nations on legislative options to recognize and enable First Nations to exercise jurisdiction in relation to administration of justice, including enforcement, prosecution and adjudication of First Nation laws.

Conclusion

The Indigenous Justice Strategy and the First Nations chapter seeks to confront the overrepresentation and systemic discrimination faced by First Nations peoples within the Canadian criminal justice system through reforming the existing system and revitalizing First Nations laws and traditional justice systems in a current context. The development of the First Nations Justice Strategy reflects the guidance received through national engagement with First Nations individuals across Canada on how to properly address the unique, intersectional challenges of First Nations women, girls, 2SLGBTQQIA+ people, men, and boys within the criminal justice system. It also acknowledges the significance of the accessibility and availability of First Nations justice services to all First Nations individuals, regardless of where they may reside within Canada.

The first path identified by the First Nations chapter: revitalization of First Nations laws and legal systems, involves finding the collaborative path forward through the gathering of knowledge from Elders, Knowledge Keepers and, where appropriate, First Nations legal experts, and sharing information among First Nations. It seeks to ensure that First Nations legal structures have authority to effectively enforce, prosecute and adjudicate First Nations laws. The second path of this First Nations chapter: reforming the criminal justice system, aims to comprehensively review and reform the Canadian criminal justice system that has, and continues to, perpetuate innumerable harms onto First Nations peoples. The four directions through which the current criminal justice system needs to be examined include: justice and wellness, policing reform, corrections and conditional release reform, and legislative reforms.

Successful implementation of the Indigenous Justice Strategy and the First Nations chapter requires a distinctions-based and regional approach, collaborative relationship and accountability, as well as long-term and predictable funding. Due to the hundreds of diverse First Nations in Canada, a distinctions-based approach that recognizes self-determination is essential for both respect and implementation of unique First Nations traditions, history, forms of justice, cultures, identification, and ways of knowing. Accountability and collaboration, then, acts as a support to advance the goals of the Indigenous Justice Strategy and the First Nations chapter.

In walking these two parallel paths, it is important to acknowledge the resilience and wisdom of First Nations ancestors who continue to guide the way forward and walk alongside First Nations.