Assembly of Manitoba Chiefs wants to create First Nations courts to reduce incarceration

The Assembly of Manitoba Chiefs is reimagining what a justice system could look like for First Nations people in the province, with plans to try out courts in two communities with processes based on First Nations' legal traditions.

As Indigenous people continue to make up a disproportionate number of people in custody, get jailed younger, be denied bail more frequently and receive parole less often, the need for such a system in Manitoba is urgent, Grand Chief Cathy Merrick said.

"The statistics are well known to both Canada and Manitoba, yet they continue to tinker with the current justice system with little to no First Nation involvement," Merrick said.

"And the only measurable success they have to show for it [is] higher incarceration rates for First Nation people."

The plan is to develop one First Nations-led court in a northern Manitoba community and another in the south, she said.

The organization said it's also working on a project to restore legal traditions of the Anishinaabe (Ojibway), Nehetho/Ininew (Cree), Anishininew (Ojibwe-Cree), Denesuline (Dene) and Dakota Oyate (Dakota) people.

The proposed courts are a "small but very vitally important step" in what will hopefully become a template that can be applied in other communities in the province, Merrick said — one that's "flexible enough to adapt to the needs of different First Nations, yet based on similar foundations and able to work with each other in the Canadian system."

It's not a new idea — an Indigenous justice system was one of the recommendations of the Aboriginal Justice Inquiry's final report more than 30 years ago. 

Given its large First Nations population and particularly high proportion of Indigenous people involved in the justice system, Manitoba should be leading those types of initiatives, not lagging behind, Merrick said.

While the courts will require government co-operation and likely also funding, Merrick said her organization realized it would have to do the work to get them going "with or without funding, with or without support from our treaty partners." 

A Manitoba Justice spokesperson said in an email that the province has not been made aware of any initiatives but is committed to reconciliation and welcomes ongoing discussion with the Assembly of Manitoba Chiefs and all its "Indigenous stakeholder groups."

A spokesperson for Manitoba Courts said all three levels of court in the province look forward to learning more about the organization's justice initiatives as part of an ongoing dialogue with Indigenous governments, organizations and communities.

What could it look like?

While Manitoba has restorative justice options within its existing justice system, Merrick said her organization is envisioning an entirely new system based on First Nations laws and legal traditions.

"We had our own traditional systems or processes before the settlers arrived here on Turtle Island," she said.

"We never had jails. We never put our people through that system where they were incarcerated. They were dealt with in a different manner by the community, by the leadership in their communities."

Marc Kruse, a criminal defence lawyer and Indigenous legal studies co-ordinator at the University of Manitoba's Robson Hall law school, said while the existing common law justice system focuses largely on retribution, First Nations legal systems focus more on addressing how to heal the harm done to a community.

"You're sitting basically with your family and your grandmother, and they're telling you how you hurt them and how you continue to hurt them and what you need to do to change," said Kruse, who is English, Irish and Saulteaux from Muscowpetung Saulteaux Nation in Saskatchewan.

That's "much different than being isolated in a prison cell where you can just be angry at the state or the police … with no programming or context," Kruse said.

Courtrooms themselves can also look different, from having enough room for community members, elders and knowledge keepers to attend, to allowing things like smudging, he said.

While Canada already has several examples of First Nation-informed courts, including in British Columbia, Ontario and Nunavut, each one is different — so exactly what Manitoba's proposed courts could look like will still need to be determined.

But in order to address Indigenous overrepresentation in the justice system, and for any kind of meaningful reconciliation to happen, Kruse said it's critical that the government agrees to work with groups like the Assembly of Manitoba Chiefs to support First Nations-led justice initiatives.

"The time is ripe for this to happen," he said. "If we don't have any interruptions, this will just continue."