Kahnawake Justice Community Consultation

Transcription

1 Kahnawake Justice Community Consultation Wednesday, January 7, 6:00 p.m. Wednesday, January 14, 6:00 p.m. Saturday, January 17, 10:00 a.m. Wednesday, January 21, 6:00 p.m. Saturday, January 24, 10:00 a.m. Wednesday, January 28, 6:00 p.m.

2 INDIAN ACT HISTORY Federal law passed in 1876 (without consultation with Aboriginal people); Long term intention was to control Aboriginal life to achieve assimilation.

3 SOCIAL AND CULTURAL IMPACTS Forced Aboriginal settlements onto reserves and created elected Band Council system; Caused changes in social norms and roles, suppressing traditional practices and government structures; Loss of land; Authorized elected Band Councils to have limited law-making authority;

4 CREATION OF ON-RESERVE LEGAL SYSTEMS Section 107 authorizes the appointment of persons to be Justices of the Peace to hear offenses under Section 81 of the Indian Act; Persons authorized to hear these matters were appointed by the Governor in Council of Canada; All Indian Agents were automatically appointed as Justices of the Peace under Section 107; These Justices would hear by-laws made under Section 81 and could also hear offenses under the Criminal Code of Canada relating to cruelty to animals, common assault, breaking and entering and vagrancy, where the offense is committed by an Indian or relates to the person or property of an Indian.

5 CREATION OF ON-RESERVE LEGAL SYSTEMS Section 81 empowers Indian Bands to pass by-laws in relation to 18 areas: 1. to provide for the health of residents on the reserve and to prevent the spreading of contagious and infectious diseases; 2. the regulation of traffic; 3. the observance of law and order; 4. the prevention of disorderly conduct and nuisances; 5. the protection against and prevention of trespass by cattle and other domestic animals, the establishment of pounds, the appointment of pound-keepers, the regulation of their duties and the provision for fees and charges for their services; 6. the construction and maintenance of watercourses, roads, bridges, ditches, fences and other local works;

6 CREATION OF ON-RESERVE LEGAL SYSTEMS 7. the dividing of the reserve or a portion thereof into zones and the prohibition of the construction or maintenance of any class of buildings or the carrying on of any class of business, trade or calling in any zone; 8. the regulation of the construction, repair and use of buildings, whether owned by the band or by individual members of the band; 9. the survey and allotment of reserve lands among the members of the band and the establishment of a register of Certificates of Possession and Certificates of Occupation relating to allotments and the setting apart of reserve lands for common use, if authority therefore has been granted under section 60; 10. the destruction and control of noxious weeds;

7 CREATION OF ON-RESERVE LEGAL SYSTEMS 11. the regulation of bee-keeping and poultry-raising; raising; 12. the construction and regulation of the use of public wells, cisterns, reservoirs and other water supplies; 13. the control or prohibition of public games, sports, races, athletic contests and other amusements; 14. the regulation of conduct and activities of hawkers, peddlers or others who enter the reserve to buy, sell or otherwise deal in wares or merchandise; 15. the preservation, protection and management of fur- bearing animals, fish and other game on the reserve; 16. (p) the removal and punishment of persons trespassing on the reserve or frequenting the reserve for prohibited purposes; (p.1) the residence of band members and other persons on the reserve;

8 CREATION OF ON-RESERVE LEGAL SYSTEMS 16. (p.2) to provide for the rights of spouses and children who reside with members of the band on the reserve with respect to any matter in relation to which the council may make by-laws in respect of members of the band; (p.3) to authorize the Minister to make payments out of capital or revenue moneys to persons whose names were deleted from the Band List of the band; (p.4) to bring subsection 10(3) or 64.1(2) into effect in respect of the band; 17. with respect to any matter arising out of or ancillary to the exercise of powers under this section; and 18. the imposition on summary conviction of a fine not exceeding one thousand dollars or imprisonment for a term not exceeding thirty days, or both, for violation of a by-law made under this section.

9 CREATION OF ON-RESERVE LEGAL SYSTEMS Section 82 outlines the process of how by-laws are to be enacted (by-laws must be submitted to the Minister); The Minister of Indian Affairs could approve or disallow a by-law; No guidelines existed as to why a by-law could be disallowed, the decision was arbitrary;

10 KAHNAWAKE S HISTORY OF SECTION 107 Through the 1940 appointment of Mohawk resident Frank MacDonald Jacobs, otherwise known as Grey Fox, Kahnawake began the process of taking control over justice matters; In the 1950 s, Harry Williams and Eddy Beauvais were added to the list of Mohawk Justices of the Peace; From 1974 to 1985, John Sharrow and Joyce King Mitchell, Mohawks of Akwesasne,, acted as Justices of the Peace for the Court of Kahnawake; The assumption made by Canada was that these Justices of the Peace would sit in a Provincial Court. However, it is not explicit in this section. Kahnawake made a determination that it could create its own local court;

11 KAHNAWAKE S HISTORY OF SECTION 107 In 1979, Kahnawake began expanding its activities to hear matters other than traffic offenses and now hears all Band By-Laws created under Section 81 of the Indian Act and the approval process contained in Section 82 of the Indian Act as well as summary conviction offences contained in Part XXVII of the Criminal Code of Canada; In 1985, Sam Kirby and Mike Diabo were nominated by Mohawk Council Resolution to act as Justices of the Peace and appointed by the Governor in Council later that year (as of 2007 both of these Justices are semi-retired); In 1987, the Mohawk Council of Kahnawake began moving closer toward that goal with the approval of the constitution of the justice committee and the justice system. The current representation of the Justice Commission is comprised of the following: 1 representative from KSCS, 1 representative from the Court of Kahnawake, 1 representative from ADR, the Chief Peacekeeper, MCK Justice Portfolio Chief, 1 representative from Legal services and 1 community member;

12 KAHNAWAKE S HISTORY OF SECTION 107 Shortly thereafter, MCK formally decided not to submit any further by-laws to the Minister for approval, inconsistent with section 82 of the Indian Act. Kahnawake decided to legislate outside of Section 81 and 82 and began to create communal laws; In 1993, Stephanie Cross and Josephine Curotte were also nominated by Mohawk Council Resolution to act as Justices of the Peace and appointed by the Governor in Council later that year; Justices of the Peace cannot hear Kahnawake Communal Law which is developed outside of the current Indian Act By- law structure and cannot be enforced by the Kahnawake Peacekeepers;

13 KAHNAWAKE S HISTORY OF SECTION 107 This has created a void in relation to community needs in relation to justice; Since 2000, the Minister of Indian Affairs can now only approve or disallow by laws in relation to financial areas and membership; Court-generated revenue from fines is submitted to MCK general fund for community benefit.

14 1999 QKR JUSTICE AGREEMENT Agreement identified training for the Justices of the Peace, Births, Deaths, Marriages and Mediation; Although a training manual was developed, it was not implemented. A recent court decision (Ell) had an impact on lay people (Justices of the Peace) presiding on issues that have Canadian Charter of Human Rights implications; Marriages: In April 2000, Kahnawake nominated the four Justices of the Peace to perform civil marriages. The Court issues marriage certificates and submits certificate to Quebec s s civil status registry; Birth Certificates/Registry: : Events of September 11, 2001 and concerns from the United States and Canada on Homeland Security have put this issue at a standstill;

15 1999 QKR JUSTICE AGREEMENT Death certificates : Not implemented at this time; Mediation: : Implementation of this portion was finalized in September 2001, with Quebec and Canada cost-sharing sharing for this initiative. This was the beginning of our restorative justice program Sken:nen A onsonton A (To Become Peaceful Again); In 2000, Quebec and Canada agreed to continue this cost-sharing sharing for a 5-year 5 period. Since 2005, both governments have only agreed to yearly funding of this project. This has created some uncertainty of the commitment of both governments on continuing this initiative, although statistics have indicated that it is a viable alternative to the mainstream justice system;

16 1999 QKR JUSTICE AGREEMENT Various research and community consultations indicated that the existing justice system was inadequate; Although this was a strong sentiment, it was also indicated that some type of adversarial process was required, particularly in relation to enforcement of orders from a Kahnawake Court that would be recognized internally and externally to the community; The Haudenosaunee concept of justice using reason, satisfaction, persuasion and compensation are the cornerstones of the restorative justice program.

17 Canada/Quebec Negotiations In , 2003, a framework on a Kahnawake Justice system was developed; It encompassed criminal, civil, family and Kahnawake Communal law; Canada and Quebec would recognize the judgments from a Kahnawake Court and the law-making authority within this agreement outside of section 81/82 of the Indian Act; Justices would be lawyers who had five years legal experience and members of the Quebec Bar Association; These justices would be jointly appointed by Kahnawake and Quebec;

18 Canada/Quebec Negotiations The judicial system would incorporate restorative justice methods and practices as its basis and would use other tribunals to resolve conflict (arbitration and administrative tribunals) Canadian mainstream justice would be used as a last resort or used as an appeal mechanism for the tribunals; These discussions terminated after Kahnawake and Canada could not come to an agreement on the membership criteria as proposed by Canada; After these negotiations stopped, discussions continued in order to try to move forward the justice initiative with Quebec;

19 Canada/Quebec Negotiations An agreement in principle was achieved with the same content as the original discussions with Canada and Quebec. There was an additional requirement from Quebec in that the Justices would fall under the Quebec Courts of Justice Act; The agreement would be for a five-year period and would be assessed during this time to ensure that Kahnawake s judicial and political direction was not compromised; This was presented to the Mohawk Council of Kahnawake by the Justice Commission and it was decided that Quebec s s criteria was unacceptable to Kahnawake.

20 Present Outlook In 2004, Canada placed a moratorium on the appointment of Justices of the Peace under Section 107 Indian Act; Kahnawake has the last four appointed Justices under Section 107; When all of our current Justices retire, we will no longer have a judicial forum to hear current applicable laws. When this time arrives and under the current structure, all files would be transferred to a Provincial Court; Most provinces have reduced the use of Justices of the Peace or enhanced the criteria to become appointed and all must now be legally trained. Ontario and the NWT still use Justices of the Peace in a limited capacity;

21 Present Outlook All future Kahnawake laws will be developed through a process which is related to a historical method of consensus-building; There will be a need to identify, empower and develop a forum to resolve these laws; Negotiations between all governments will be required to discuss issues of jurisdiction and reciprocal arrangements on the recognition of judgments from varying judicial districts.

22 The information contained in this presentation was obtained from files of the Court of Kahnawake, the Kahnawake Justice Commission and the Office of the Council of Chiefs (OCC).

23 The Future What do we see as a justice system? How should we address conflict? How should we address crimes against society? How should we address crimes against the individual? Who do we want interpreting laws or passing judgment?