A Path to Fewer Indigenous People in Prisons

In March, the federal government announced Canada’s first Indigenous Justice Strategy.

The plan for addressing systemic discrimination and overrepresentation of First Nations, Inuit and Métis people in the justice system dropped amidst the Liberal leadership race, which propelled Canada into a noisy federal election focusing on government’s relationship with our neighbour to the south.

As a result, the plan’s announcement barely made a ripple.

But as the election dust settles, BC First Nations Justice Council chair Kory Wilson, a member of the Kwakwaka’wakw who holds the traditional name Hemas Kla-Lee-Lee-Kla, says that when Prime Minister Mark Carney and his incoming cabinet are ready to carve a path toward a more equitable justice system, advocates are waiting with the road map.

The BC First Nations Justice Council, which released its own strategy five years ago, was one of 38 Indigenous groups countrywide that provided input on the federal strategy over three years.

The provincial and federal strategies bear similarities, with both structured along a “two-track system,” Wilson said. Track 1 focuses on reforming the existing justice system and Track 2 focuses on revitalizing Indigenous legal orders and ways.

“It’s better for everybody if Indigenous ways of knowing and being are included,” she said.

While Indigenous people make up five per cent of B.C.’s population, they account for 32 per cent of custody admissions, according to the province.

The strategy takes a holistic approach by addressing the reasons that bring people in contact with the justice system — struggles such as housing, poverty and mental health. Wilson, who is also executive director of Indigenous initiatives and partnerships at the British Columbia Institute of Technology, pointed out that the annual cost to imprison a person in Canada is between $150,000 and $250,000.

“For what it costs to keep an Indigenous person in custody, you could educate 14 or 15 people, pay their yearly tuition, even give them a living allowance,” she said.

Moving forward with the strategy will require a funding commitment and real action from the federal government, Wilson said.

Our conversation has been lightly edited for length and clarity.

The Tyee: The national Indigenous Justice Strategy was released during the federal election, and I suspect there are people who haven’t heard about it. What are some things that you would like people to know about the strategy?

Kory Wilson: This strategy is incredibly important. It’s got all kinds of aspirations and there is hope that it will help alleviate the systemic discrimination faced by Indigenous Peoples — First Nations, Métis and Inuit — within the Canadian justice system, with the target of reducing the overrepresentation of Indigenous people in that system.

It's got a list of principles and goals: Indigenous self-determination [and] the need for collaborative relationships between the province, the feds and the Indigenous governments. It's about restoration and revitalization, including Indigenous knowledge, laws, jurisdiction for justice, culture, society, families — you name it.

It’s about a strength-based, trauma-informed approach, which I think is really important, and it also recognizes that this isn’t just a justice problem. It’s interconnected with so many other challenges that we face in Canada as Indigenous people.

Now that we have a new government coming in, what are the next steps? Will somebody be meeting with the prime minister?

Absolutely, we need to meet with the prime minister. First, he’s got to form his cabinet. We want to meet with everybody.

It was a Liberal government that launched the justice strategy in March and now we have a Liberal government. This is something that they produced. So, we would obviously strongly encourage them to work with us, to meet with us, to understand the importance of this work. It’s not enough to just launch a fancy report. If it’s not funded, and if it's not actioned, then it means absolutely nothing.

What do you see as potential barriers to moving ahead with the strategy?

I think one of the biggest barriers is just simply getting people to understand the interconnectedness and the reasons people find themselves in the system. We have to take a cross-silo approach, if you will, to address these issues. But some of the barriers will certainly be lack of understanding, competing priorities, finding money for it — because it does require some money.

[We need to] make sure that everybody understands why it needs attention. What has been going on since we created the justice system in Canada is simply not working for Indigenous people.

The strategy talks about the need for wellness and a holistic approach. It’s much more than just policing and corrections. Can you talk more about the broader systemic issues that create imbalance in the justice system?

First off, the system was created without any Indigenous influence, and it’s a system that has discrimination and racism inherent in it. There’s no other way to explain it. Why would there be such gross overrepresentation of Indigenous people when no one’s going to say we’re more criminally inclined or we're more likely to find ourselves in trouble with the law? It's simply not true.

We wouldn’t have a problem with the system if Indigenous people didn’t come in contact with the police in the first place. Then they’re not going to get arrested, they’re not going to go through courts, and they’re not going to go into incarceration. This is why it has to be a cross-silo approach. If an Indigenous person is healthy and able to provide for their family and deal with their trauma, deal with their mental health issues if they have them, deal with learning disabilities, they’re not going to find themselves in contact with the justice system.

Even if they do come in contact, let’s move towards diversion, which is one of the foundations of our justice strategy. Making sure we educate police and police understand the challenges faced by Indigenous people. Judges, all the actors and players in the court system, need to have a true understanding of Indigenous people and our history.

The wellness and the holistic approach is understanding the realities that Indigenous people face in Canada. An Indigenous way is recognizing that the person is there because they’re out of balance and we need to restore that balance and help them move forward in a holistic way. People aren’t there just because they made one bad decision.

Here in B.C., there’s been an attempt at Police Act reform that doesn't seem to have made a lot of progress. How could we move police reform forward at a federal level?

I think it’s deciding that this is a priority and getting the right people in the room, which has to include Indigenous people. The number of times conversations continue about Indigenous people without any Indigenous people in the room is just silly.

We have a police oversight and accountability team at the justice council, and so we would continue to advance our strategies and inform and support in any way possible. [Police] can also be a No. 1 ally if the police themselves have an understanding of Indigenous people, their background, our history, and if we work together and actually have these conversations about practical actions that can lead to change.

The strategy talks about revitalizing First Nations laws and traditional justice systems in a current context. There are examples where the Wet’suwet’en exercised their traditional trespass law and the B.C. Supreme Court said it could not “comfortably coexist” with a court injunction. The Haida recently evicted a family from the territory after one family member was arrested for a targeted hit and run, and the police have called the eviction into question, as it differs from formal Canadian justice processes. How do you see those two different justice systems merging or coexisting?

This is a concept of legal pluralism, meaning that there are different legal systems and they can exist at the same time. Indigenous people, since the beginning of time, had legal pluralism in Canada, because each of our nations — I’m Kwakwaka'wakw, the Wet’suwet’en, as you've mentioned, the Haida — all had their own systems of laws and justice. I’m on Coast Salish territory at the moment. They have their own ways.

There was legal pluralism back before contact and even post-contact. There would be conflicts that arose and they would figure out a way to resolve it. But that requires bold and courageous conversations and understandings of each other’s cultures, each other’s values, each other’s goals, at the same time as “What is the outcome that we’re trying to achieve?”

There is an opportunity for the courts, and those judges and lawyers, to sit down and really think through this. How can Indigenous laws exist alongside provincial and federal laws? Do we want the Charter of Rights and Freedoms to apply? Do we want the Criminal Code to apply? Each community figures out what they want, and what the goal is, and you just figure out how to do it.

Is it going to be easy? Not necessarily. Is it going to require a lot of hard, honest work? Absolutely. It’s going to require people to open their minds to doing things differently. Because the reality is — and this is a generalization — that at the core of all Indigenous laws is an understanding of wellness, of the whole person, and the community is responsible for that person, just as that person is responsible to their community.

Of course, let’s do diversion and try to do what we can to prevent them from coming into the system, but we’ll always have people in the system. If we take that concept of the whole person, and helping restore balance in that person, then all of us will be better. Society will be better. But it's going to take continuous talking and working together.

Could the federal Indigenous Justice Strategy provide momentum to some of the processes that came that preceded it, like the Truth and Reconciliation Commission, the National Inquiry into Missing and Murdered Indigenous Women and Girls, and the implementation of UNDRIP [United Nations Declaration on the Rights of Indigenous Peoples]?

Yes. All of these issues and all of these solutions have been identified so many times. We have to action it. Obviously, we can't do it all at once, but how do we prioritize it? How do we move it forward?

These didn’t just come out of thin air. These came from our practical, on-the-ground experience and grassroots understanding of what is needed to change the overrepresentation of Indigenous people in the criminal justice system. We know exactly what we need to do and how to move it forward. We just need stable core funding. We need ongoing commitments to keep engaging.

The answers are there. We need to be supported to move them forward with true intent and action on the part of the provincial and federal governments alongside us.

How quickly do you think we could see progress resulting from this federal strategy?

I think that will be up to the federal government. Obviously, they’re going to have to wait until they have an attorney general and a minister of justice and the various other ministers appointed. But if they’re appointed on a Monday and they want to talk to us on Tuesday, we’re ready to go with a plan.