Consultation Reports

SUMMARY

In January 1998, the Honourable Jon Havelock, Q.C., Minister of Justice and Attorney General of Alberta announced the Alberta Summit on Justice to be held in January 1999, in order to "understand how the public perceives the system to be working and empower the public to assist us in changing the system to address the concerns regularly expressed." The objectives of the Summit on Justice are to improve public confidence and community participation in the justice system.

First Nations, Metis and Inuit justice issues have been the focus of many reports and commissions; and therefore, has been identified as one of the many topics to be discussed at the Summit on Justice "with a view to making a good justice system better." Consequently, the Treaty Six First Nations sector was invited to participate in the Summit on Justice as one of the justice sectors providing input to the summit by way of their own justice sector consultations. For Treaty Six First Nations, the focus throughout the process since the announcement of the Summit on Justice has been to identify the issues facing First Nations people in regards to the Alberta justice system, as well as, identify what needs to be done to effectively deal with those issues.

The Treaty Six sector wishes to express their appreciation for having been invited to make a submission to the Alberta Summit on Justice. The concern from Treaty Six First Nations is that the recommendations in this submission would see the same fate as numerous other reports; such as, the Kirby Report, "Justice on Trial" better known as the Cawsey Report and Royal Commission on Aboriginal Peoples. There have been countless recommendations in these reports to deal with the issues surrounding First Nations involvement in the justice system. However, those same recommendations have not been acted upon in any way to significantly decrease First Nations over-representation in the justice system, or effectively deal with the unique nature of their interests in the justice system.

An important aspect that needs to be pursued further is the fact that both Federal and Provincial governments have yet to acknowledge First Nations people, through a bilateral process, as a nation with inherent rights to government and jurisdiction over their own justice systems. This has been a long-standing issue for First Nations people as the Treaties did in fact impact on First Nations government and jurisdiction and has created conflicts in regards to interpretations of the Treaties. Expanding from this is that one of the underlying concerns in respect to First Nations peoples involvement with the justice system is that they are dealing with the a justice system which is based on Euro-Canadian values and beliefs. These values are fundamentally different, even at the philosophical level, from First Nations values and beliefs. Although it is understood that the values and beliefs of all cultures affect all aspects of the peoples lives from within particular cultures, the justice system in the past maintained the concept that Aboriginals in general, needed to conform to the beliefs and values of a society and justice system alien to their own to decrease over-representation in the justice system. However, the fact that First Nations over-representation is still increasing, clearly shows that the focus of these concerns should be on changing a justice system that shows intolerance towards those who have values and beliefs different from that system and society.

In addition, another concern facing Aboriginal peoples involvement in the justice system is apparent. Allocation of resources for Aboriginal community corrections programs must be reflective of the disproportionate ratios of Status, Non-status, Metis, and Inuit involvement in those programs. In order for community corrections programs to be effective, this needs to be addressed and dealt with accordingly. The Federal government’s Aboriginal Justice Strategy, a five year plan is based on the Federal government’s agreement to cost share initiatives with communities, provincial and territorial governments on a 50/50 basis in the areas of diversion; increased community participation in sentencing; civil disputes: mediation and arbitration; and, Justice of the Peace Courts. However, lack of participation from the Alberta Provincial government, has proven the strategy to be ineffective for First Nations in Alberta. The Treaty Six First Nations submission, therefore, has included specific recommendations to the Federal and Provincial governments for changes necessary for the Alberta justice system to effectively deal with these issues.

The following Treaty Six First Nations submission to the Alberta Summit on Justice in no way seeks to implement changes that threaten the sacredness of our Treaties. It is important to stress that the contents of this submission are the result of consultations with Treaty Six First Nations justice technicians and their consultations within Treaty Six. Lastly, the writers wish to acknowledge and express their thanks to: the Alberta Law Foundation, the Aboriginal Justice Initiatives Unit of Alberta Justice, as well as, the Treaty Six First Nations justice technicians for their vital input and assistance in the development of this submission.

A. TREATY SIX POSITION

By accepting Treaty, Treaty Six First Nations agreed to peacefully co-exist with the Queen's subjects. Along with that, there was an understanding that the Treaty First Nation people would be taken care of forever by the Queen and her representatives of the Treaty. In view of this, Treaty First Nations know that we are Original peoples plus because of Treaty. We are the original nation of people that existed at the time of Treaty, while pursuing our traditional way of life. We are an evolving nation that was promised the means by which to advance our social and economic needs, and to continue to exist as an inherent Treaty First Nation.

We view the protection of Treaty Six to be extremely critical, this in light of the Queen’s representative's efforts to the contrary. Treaty Six is a solemn promise between our Treaty First Nations and the Queen to live side by side 'for as long as the sun shines, the grass grows, and the rivers flow', (as stated in the original Treaty). Treaty Six also promised the continued recognition of our inherent authority and jurisdiction over our lands and our people. Furthermore, by Treaty Six the Queen guaranteed our traditional way of life, which includes the promises of full social and economic advantages.

We are now in a situation of confirming that the promise made by the Queen to our Grandfathers has not been kept. We have always maintained that there is no recognition of our inherent status as First Nations to develop and enforce laws on our territory. The Queen has unilaterally forced Her own laws of interpretation on our Treaty, even while our Elders still maintain views consistent with that of our Grandfathers understandings, as being the supreme testimony and interpretation on our territory.

Our Grandfathers understood the Treaty based on their traditional values and culture, and passed that understanding down in oral tradition through to successive generations. The Queen must always make every effort to understand the unwritten meanings and interpretations of these Laws. Solutions to this ambiguity does not evolve out of established and inflexible systems, but rather in the teachings of our Grandfathers and their understandings of Treaty. However, we now see the efforts being made by her Majesty the Queen's representatives, evidenced in their constitutional protections of treaty rights: in the Royal Proclamation of 1763; in the various Alberta-Canada transfer agreements; in the Indian Act; and in various interpretations, as being the supreme law over any other. These are not our laws, and we must not be forced to adhere to these foreign concepts.

We continually find ourselves in a position of arguing for, and justifying our Treaty under Canadian and Provincial Laws. As a result we find these laws to be a complete denial of the recognition of our inherent right and existence as sovereign First Nations. A stance historically supported through federal policy, legislation, etc., since the arrival of the first Europeans. Never before, as is the case now, have we had to justify that our Grandfathers had the unquestionable authority to enter into Treaty. The Creator created our existence, our nationhood, our land, and our laws. The Creator gave our Grandfathers the authority to enter into Treaty. The Queen did not give our Grandfathers that authority, she merely recognized it. The source of our title is in our occupation of this land since time immemorial. The source of title is not with the Crown.

Throughout our existence as Treaty Six First Nations, we have experienced the Queen's legal systems which deny the recognition of our capacity as First Nations to be empowered by the Creator. Yet, this is the way in which other government laws derive their authority. For example, the Charter of Rights and Freedoms in Canada's Constitution Act, 1982, which is not our declaration, opens with the statement: "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:" Our Treaty First Nations are founded upon the basis of those very same principles which recognize the supremacy of the Creator and the laws given to us. Despite repeated attempts by Her Majesty's Dominion Government to destroy our Treaty and our First Nations, we manage to survive. While the laws of the other Nation have been imposed on us, we have never given up our laws. We continue to maintain our existence by emphasizing that the Treaty will always guarantee our inherency for the future. For us to begin to acknowledge the wisdom of our Grandfathers, we must construe Treaty Six in the way our Grandfathers understood it at the time of signing. We must understand Treaty Six by taking it beyond the strict technical meaning of the written word. We have always said that there must be recognition and acceptance that our Treaty Six is sacred and is the supreme law of our First Nations.

Her Majesty, the Queen made Her supreme law by writing it in words in Section 52 (1) of the Constitution Act, 1982, wherein it states: "the Constitution of Canada, and any laws that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." On the other hand, we always confirm the supremacy of our laws by the sacredness of the pipe. We have been told that because the sacred pipe was present at Treaty negotiations, only the truth was to be spoken by those present. The sacredness of our pipe is the great seal which ensured our commitment in Treaty negotiations. Any promises made or words spoken while in the presence of the pipe are to always be respected and honoured. It is for this reason that the oral testimony of our respected Grandfathers is our law and our interpretation.

Our Grandfathers saw that our territory was slowly being settled and developed by foreign Nations. They saw the need to guarantee our survival as inherent Nations, to protect our territory, and to protect our means of securing a livelihood. Our Grandfathers sought to retain control of our vast territory, and our future existence as inherent First Nations. Our Grandfathers did not view Treaty Six as a deed of sale, but rather as an alliance of peace and co-existence between our Treaty First Nations and the Queen, by which the foundation of this country was built upon. Therefore, Treaty Six is premised on the understanding that the Queen would have laws for her territory, while we maintained our traditional laws in our territory.

Our Grandfathers always understood the protection of our territory as being guaranteed under Treaty Six by maintaining jurisdiction over our vast area.. In the wisdom of our respected Grandfathers, and as a responsibility to the Creator, we view the protection of the land as extremely crucial. Our lands are a gift from the Creator. Our Grandfathers did not have the intention, nor the perception, to sell the land by breaking it into small pieces. It is the common legacy of us all, that the true owners of the land are those children yet unborn. Our laws are founded in nature as a means to bridge the spiritual and physical worlds. Our laws are not a separate entity and does not "fit neatly into any particular bureaucratic niche." (1)

In discussions of Treaty Six by the Queens representatives, much focus and attention has been paid to those rights that flow to an individual Treaty First Nation member. It is our understanding that the focus of our Grandfathers was on the protection and survival our collective First Nations and territory. However, many of the protections now found in the other Nation's laws and legal processes continue to focus on the protection of individual Treaty Rights. Even the wording of the Constitution Act, 1982, in Section 35 (1) : "The existing aboriginal and treaty rights of the aboriginal people of Canada are hereby recognized and affirmed." could be construed to mean that individual rights are protected rather than the collective rights of our Treaty First Nations.

It is not surprising, therefore, to find that the legal system of the other nation protects the individual rights over the collective rights of our Treaty First Nations. We perceive that the other nation's legal systems does not see the world in the same way that our First Nations do; wherein, our belief is that collective rights are always more than individual rights. In our view, the individual Treaty Right is always protected within the larger context of our inherent authority and jurisdiction as Treaty First Nations.

It is our position:

• that we entered into Treaty Six with Her Majesty the Queen, not with the Canadian Government, or with any other subordinate government.
• that Treaty Six is an alliance between two nations; with the Queen having an obligation to ensure that the terms set out in Treaty Six are honoured forever. We recognize that the Queen may choose to have the Government of Canada act as Her agent in honouring of these Treaty promises, but the Queen has a responsibility to set up, and monitor, a forum to ensure that this agent's role occurs.
• that Treaty Six already recognized that we were, and we continue to be Nations with the means to govern ourselves. Treaty Six clearly outlines the way in which we are to interact with the Queen's government. It is now purely a matter to recognize the articles of Treaty Six, and to protect them.
• that Treaty Six places us in a completely different situation than all other groups and people who claim aboriginal status. Treaty Six already established our constitutional relationship with the Queen. This is clearly not the case with all other groups or people who claim aboriginal status. As such, it is our position that as Treaty First Nations, we must have our own separate discussions with the Government of Canada on any matter affecting our Treaty. We will not discuss any issues affecting Treaty in the presence of, or with any subordinate government or interest group. We are not just now beginning new discussion on Treaty First Nation - Government relations, as other aboriginal groups or people may be. We are now setting out to reaffirm and understand the unique government relationship that was set out in Treaty Six over one hundred years ago. We are not merely talking about laws which the other governments believe relate to us. We are talking about a complete restructuring of their supreme law to reflect those agreements made in our Treaty, and to ensure that our Treaty Six as a whole is protected. The existing Treaty Rights that are recognized and affirmed under Section 35 of the Constitution Act, 1982, does not even begin to address the nature and status of our Treaty.
• that the Queen does not have the authority or jurisdiction to grant us a form of self - government. We have always had the inherent right to self-government by virtue of entering into Treaty Six. This inherent right is forever entrenched in our Treaty Six so that our traditional ways, and our traditional laws and governments would not be disturbed. It is now only a matter to reaffirm and recognize what was agreed to by Treaty Six. Any other form of entrenchment, such as that which was proposed in Canada's constitutional recognition of our right to self-government, only undermines our Treaty Six. No man, or government can grant us this inherent right, and especially not through negotiated or legislated forms of self-government.

As a result of the way in which Canada's supreme law is set up, their government can amend at their pleasure. In Canada's view, this puts us in a place beneath them, when in reality, Treaty Six makes us equal Nations. In the same way, and even more damaging, is the ability of their courts to interpret what a right to self-government would be. Of course, these courts are not our courts. These judicial systems do not have the ability nor the perception to understand our governments and our laws. We strongly state, that in Treaty Six there were two Nations who agreed to understand one another. One Nation could not unilaterally interpret the laws of, or for another Nation, such as what the Canadian court system does now. This is not acceptable to us, and is a pure violation of the Treaty promise not to interfere. Clearly then, we are not subject to the Canadian Charter of Rights and Freedoms, and the federal and provincial laws of general application. To us, this is interference. The Queen promised to protect our traditional way of life, protect our land and to ensure our social and economic advancement. Only laws with these objectives can apply to us, and only when there is agreement on the nature of these laws by our Treaty First Nations. This is clearly in the Treaty. We say again, that we have our own laws and governments which emphasize much different principles and values than that of the Government of Canada. More precisely, the Charter of Rights and Freedoms protects individual rights, while in our tradition and culture, collective rights take priority over individual rights.

A constitution sets out laws by which a people governs themselves, as well as the values of that people. We state that our laws and values are much different that those of the non-Treaty population. Our Treaty recognizes our values, as well as the values of the Queen. The recognition of each others values is reflected in Treaty Six as a full and binding agreement of two Nations to understand one another and to peacefully co-exist. We will not agree to the unilateral imposition of any laws reflecting anything less than this; to do so would be to breach Treaty. Treaty is sacred. Such a breach will offend something much greater than man. It is in this spirit that we reaffirm discussions conducted over 100 years ago.

B. CONSENT TO LEGISLATION CAN CHANGE TREATY SIX

Under Canadian law, a Treaty First Nation can alter, diminish, affect, or extinguish Treaty Six by giving its consent to such alteration, diminution, effect, or extinguishment. If we consent to a piece of federal legislation, and if such federal legislation contained provisions which altered, diminished, affected, or extinguished the Treaty , the nature of the agreement set out in Treaty Six would be effectively changed.

Moreover, when we entered into Treaty Six with the Imperial Crown, consent to adhere to Treaty Six was given by the First Nations through their Chiefs and Headmen. Therefore, in order to alter, diminish, affect, or extinguish the Treaty, it would appear that our First Nations Chiefs and Headmen would need to give consent, in the same manner as prescribed in Treaty negotiations ratification. It would appear that if one First Nation chose not to adhere to Treaty Six this could not change the nature of Treaty Six. It could not change the nature of Treaty Six for all First Nations who continued to adhere to it. Essentially, the First Nation who gave such consent would be changing the nature of the relationship between the Crown and itself, for itself.

The inclusion of a non-derogation clause in any legislation which states that this legislation is enacted without prejudice to treaty rights would possibly provide some safeguards. Nonetheless, if the non-derogation clause had any effect, it would apply to a Treaty provision that a First Nation had not consented to change. This is put this way, because it is possible that if we consent to changing a portion of the Treaty, we may consent to changing the entire Treaty. This may be the case as Treaty Six is an all encompassing agreement that Treaty First Nations adhered to as a whole agreement. Therefore, it would appear that one First Nation alone could not dissect the Treaty without prejudicing the rights of other First Nations adhering to that Treaty. Rather, it would appear that a First Nation who consented to changing the Treaty would no longer be part of that Treaty.

Therefore, it is our opinion that a Treaty obligation cannot be suspended for a period of time by a First Nation. If a First Nation changes one portion of the Treaty, it appears that is essentially removing itself from adherence to that Treaty. Consequently, it is important that the provisions of legislation do not change the nature of the Treaty or of First Nations wishes that the Treaty remain intact. Therefore, all provisions of the Treaty must be closely adhered to and reflected in legislation.

C. LEGISLATION MUST COMPLY WITH SPIRIT AND INTENT OF TREATY SIX.

It is critical that legislation adhere to the spirit and intent of Treaty Six from the point of view of Treaty First Nation peoples. This means that oral understandings must be clearly understood and reflected in legislation.

Treaty Six sets out the legislative jurisdiction of the Treaty First Nations and the Crown. This arrangement must be reflected in all legislation so as not to change the bilateral Nation to Nation relationship that was set out in Treaty Six. When the newcomers came to our territory, Treaty First Nations were a sovereign and independent Nation with their own laws and governments. Treaty First Nations entered into an alliance with the incoming nation to live side by side in peace and co-existence. Treaty Six recognized the inherent laws and governments of the Crown. Treaty Six is an agreement between two Nations to understand one another's law and government, and not to interfere. Furthermore, there were other binding obligations set out and agreed to in Treaty Six which were to be honoured and fulfilled by the Crown. These obligations created a bridge between two Nations. The Treaty First Nations and the Crown, respectively must set up mechanisms within their respective governments and legal systems to ensure that these obligations are fulfilled.

This means that within legislation there must be a clear distinction made between what is the inherent jurisdiction of Treaty First Nations which would not form part of the legislation, and what would be a part of the bridge and, therefore, would be a part of legislation. The legislation would implement the obligations of the Crown to the Treaty people pursuant to Treaty Six. In other words, the legislation does not adhere to Treaty if the federal government needs to recognize and affirm the First Nations' authority. The Treaty already does this. The federal legislation is simply the mechanism by which the Crown honours and implements its obligations pursuant to Treaty.

When Canada was formulated in the 1860's the Imperial Crown insisted that Indians and lands reserved for Indians be placed under exclusive federal jurisdiction. This is Section 91 (24) of the Constitution Act, 1867. this provision was to ensure that the federal government would always have exclusive jurisdiction to administer sacred trust obligations which the British Crown had given pursuant to Treaty. Section 91 (24) can no longer be an open box for the federal government to legislate in any way with respect to Indians and lands reserved for Indians. It is here that the spirit and intent of the sacred Treaty obligations must be reflected. The true nature of the trust relationship must be set out.

As the obligations flowing from Treaty Six are to be implemented under Section 91 (24), it is imperative that Treaty First Nations be involved in the development of that legislation. This is the true bilateral Nation to Nation approach set out in Treaty. The process cannot be unilateral because it would depart from the consensual approach reflected in Treaty Six between Treaty First Nations and the Imperial Crown. Therefore, Treaty Six is recognized, honoured, respected, and enforced by the Canadian Government and laws. In playing such a role, however, Treaty First Nations are not accepting ownership of those Canadian Governments and laws. We are merely reflecting the consensual way that Treaty Six was entered into.

E. DELEGATION OF AUTHORITY FROM PROVINCIAL LEGISLATION.

Treaty Six was entered into between the British Crown; who have since unilaterally passed its obligations to the Crown in right of Canada, and the Treaty First Nations. In her book, Venne stresses this fact, "Even the written version of Treaty 6 acknowledges that the treaty was entered into with the Queen of England, {sic} without mentioning the colony of Canada." (page 189) (2). She goes on to say that "Canada did not have the authority to enter into treaties in its own right until the Statute of Westminster was enacted by the British Parliament in 1932." (page 189) (3) For the British, it was implied that Canada was delegated on behalf of the Queen to fulfill obligations of the treaties. And, although First Nations never consented to this, it was allowed to happen.

Furthermore, the Provincial Government did not enter into Treaty with Treaty First Nations. Therefore, a bilateral relationship between two parties, the Treaty Six First Nations and the Federal Government of Canada was established under Treaty process. A delegation of legislative authority from the Provincial Government does not comply with this bilateral relationship and serves to alter the original relationship established pursuant to Treaty. Section 91 (24) of the Constitution Act, 1867, which reads; "Indians and land reserved for Indians", is the authority set out within the Canadian legal system to allow the Government of Canada to honour its obligations under Treaty Six to the Treaty First Nations, or to honour its trust. If the Province were to delegate authority to Treaty First Nations, it would have to do so pursuant to Section 92, or a provincial authority, within the Constitution Act, 1867. Section 92 authorities were not established to honour Treaty obligations as the Provinces did not assume these obligations, the Federal Government of Canada did.

There is another breach of Treaty Six which arises when there is an acceptance of delegated authority from the Provincial Government. When the province delegates authority, it then gives authority to Treaty Six First Nations. What the provincial Government gives can also be taken back or limited. Thus, Treaty Six recognizes the inherent self-governing authorities of the Treaty First Nations. This authority can not be given to Treaty First Nations by another government, let alone a subordinate government.

Once again, we must point out that despite the agreements set out under Treaty Six, Federal and Provincial Governments, and their legal systems, continue to interpret Treaty Six without our consent. As Treaty Six First Nations, we have always maintained that we have our laws and our interpretations and understandings of these laws. Our understandings are to be recognized consistent with our Grandfathers understandings of Treaty Six.

Treaty Six clearly established a bilateral relationship between the Treaty First Nations and the Imperial Crown. We always refer to this relationship as the "Sacred Trust" relationship. Treaty Six sets out that special relationship and the obligations between the Crown and First Nations . No discussions on any matter affecting Treaty can proceed which deviates from the true and original bilateral process that was established by our Grandfathers.

The Imperial Crown made these binding obligations to Treaty First Nations under Treaty Six. These "Sacred Trust" obligations were unilaterally placed in the hands of the Canadian State by the Imperial Crown of Great Britain. We state that the Government of Canada must now meet these obligations passed to it by the Government of Great Britain by establishing a bilateral process for the implementation of all Treaty obligations.

We have advised the Government of Canada that we do not now consent, nor will we ever consent to altering the bilateral relationship set out under Treaty Six between Treaty First Nations and the Imperial Crown. Furthermore, we do not now consent, nor will we ever consent to altering, diminishing, affecting, or extinguishing Treaty Six in any way whatsoever. It is time that the agreements made pursuant to Treaty Six are respected and honoured in a manner as indicated in the foregoing "principles of a protocol agreement to affirm the relationship of Treaty First Nations and the Imperial Crown pursuant to Treaty Six" as herein described.

1. Bilateral discussions would ensue between the Treaty First Nations and the Crown in Right of Canada to reach understanding on the nature of Treaty Six and the obligations contained within it.
2. To protect and maintain the spirit and intent of certain basic unalterable principles contained within Treaty Six which are clearly outlined in the Treaty Six First Nations Declarations of Affirmation of Treaty Six Authority and Powers, and that all bilateraldiscussions must be conducted in accordance with those principles.
3. Financial Arrangements are based in the Treaty Six agreement made by ourGrandfathers and the Imperial Crown, and shall continue, based on those principles.
4. It must be clearly understood and agreed upon that Section 91 (24) of the Constitution Act, 1867, which states that the Parliament of Canada shall have exclusive authority for Indians and Lands Reserved for the Indians", and shall remain a mechanism within the framework of Canada's Constitution to fulfill their responsibilities and obligations pursuant to Treaty Six with respect to Treaty Six First Nations alone.
5. The Treaty Six First Nations never have, and never will consent to alter, diminish, affect, or extinguish the international stature of Treaty Six in any way whatsoever.
6. The areas of obligation under Treaty Six that would be placed in a comprehensive piece of legislation, which would replace the Indian Act, shall include, but not limited to these areas: land title, land disposition, land management, education, health, social services, child welfare, hunting, fishing, trapping, justice, financing, social and economic advancement, and territorial integrity, etc. These areas of responsibility are trust responsibilities which arise from the bilateral nature of the Treaty relationship between Treaty First Nations and the Imperial Crown.
7. Treaty Six inherent jurisdictions include those jurisdictions which are not trust responsibilities arising from Treaty Six and specifically honoured under Sections 91 (24) of the Constitution Act, 1867.
8. Treaty Six cannot be interpreted. Treaty Six is not static; it evolves and will continue to evolve as long as the sun shines, the grass grows, and the rivers flow. It is the legislation that is consensually enacted and agreed to pursuant to the bilateral process that will ensure that the current understandings of Treaty Six are honoured.
9. All provisions of the Constitution, federal legislation, and agreements pursuant to it, must be in accordance with the Treaty Six position.

G. TREATY SIX FIRST NATION JUSTICE PROMISES NEVER IMPLEMENTED

The current situation and history shows us that the Treaty Six Justice promises were never implemented. Whether on the reserve or on the shared lands, the system of the Crown was imposed without any consideration for our laws, ways, customs or lifestyle.

The failure to honour and implement the Treaty Six Justice promises has resulted in a justice system that is not working for our people. The Royal Commission and other such reports have clearly documented this failure. In addition, the lack of respect and interference in our ways and laws, which is a breach of the primary Treaty promise, has resulted in a breakdown of our families and societies. Many of our justice problems can be traced back to this familial and societal breakdown.

Moreover, the justice reports that have surfaced in recent years provide documentary evidence to show that if a justice system is connected to the values of a culture, there is a measurable reduction in incarceration and recidivism rates.

The healing of minds, hearts and souls of individuals, families and societies, whether native or not, is intrical to the establishments of a justice process that is in line with the Treaty promises. Treaty Six was sanctified before the Pipe and therefore it is sacred and has a life and spirit of its own. Any process that is in line with a Treaty promise will be guided by this spirit.

As First Nation people, we see that there are two sides to justice. On one side, there is the eternal, unchanging truth of the Creator. On the other side, there is the ever-changing unfolding truth of human reality with Creation. In between, there is the law of balance and harmony, towards which humankind must strive characterized by integrity, humility and respect. This is the character of the justice process we see within our own Nations but is also the character of the justice process that will serve our people on the shared lands.

In terms of the establishment of a joint process for the administration of justice upon the shared lands, we see that there will need to be a blending of our ways with the ways of the non-native. It seems that our traditional justice systems have reflected the eternal, unchanging truth of the Creator. The non-native system, however, has emphasized the ever-changing, unfolding truth of human reality within the Creation. Perhaps it is only through the blending of these two ways that we will be able to achieve a balanced justice on the shared land. It seems that this is the true spirit and intent of Treaty Six.

It is difficult at this point in time to know what this joint justice process will look like. We do, however, have some starting points.

• Our world view is at odds with the world view of the non-natives who imposed a foreign system upon us. The various justice reports that have surfaced over the past few years have referred to this as systematic discrimination. This is the structural denial of another perspective and another set of values and experiences.
• In our view, justice is a law of peace, not punishment and retribution. Our goal is to restore harmony as quickly as possible. There are other grave conceptual differences. The current system of justice is about individual rights based on a liberal democratic tradition. We, however, see respect for all living things collectively. The system is an adversarial process that emphasizes contest rather than cooperation. The process of discovering truth is more important than the truth, itself. For our First Nations, justice refers to an aspect of natural order where everyone and everything stand in harmony to one another. This is very different than having a strict set of rules and institutions. All of our rules and institutions are evolutionary and grow and adapt to changing circumstances so that harmony and balance are maintained.
• Our view of justice is restorative with healing and reconciliation being primary. We see healing lodges when the system sees penitentiaries. The system sees hierarchical structures and confrontational processes when we see circles and shared decision-making.
• Most importantly, we see that God, the Creator of all living things, can determine issues of justice. Man is just the Creator's tool and not the final decision-maker.

In order to complete this task, it will be necessary for both the federal and provincial governments to create a place for legal pluralism in Canada. Legal pluralism is the existence of more than one distinct type of law or legal system in a single country. The establishment of First Nation criminal justice systems operating on First Nations territories parallel to the non-native system will require a high measure of cooperation and cross-cultural awareness and understanding to make it work. This is also very true with respect to a joint justice system on the shared lands. The primary ingredient is respect. There is much that both Nations to this Treaty must learn. The process must also begin immediately. The philosophies behind First Nation justice systems, has been discussed and written about by many scholars, authorities within the Justice systems in Canada and elsewhere. However, in order to not take away from the purpose of this document, some of these ideas are suggested for further reading (4).

H. OVER-REPRESENTATION OF ABORIGINALS IN THE ALBERTA JUSTICE SYSTEM

Presently, in the Alberta Justice system, Aboriginal people are disproportionately represented in community corrections programs and in provincial correctional institutions. The following facts have been extrapolated from the "ABORIGINAL OFFENDER SURVEY" (5), conducted by the Research Unit Division Support Services, Alberta Correctional Services. The information from this survey shows information on offenders managed in the community, "collected for cases active on February 28, 1998, using a manual survey filled out by the probation officers in community corrections offices" (6).

The number of Aboriginal Adult and Young offenders in custody are extremely high in relation to the total population of Aboriginals (adult and youth) in Alberta, and in comparison to the total population of Alberta.

Under the heading of "HIGHLIGHTS OF THE SURVEY" (7), the following was found.

The survey states that on February 28, 1998:

"there were 853 Aboriginal adults in Alberta jails. This is 1.0% of the total adult Aboriginal population in Alberta (1996 census Aboriginal Adult Population over 19 years of age was 83,810) and 37.9% of the in-house adult correctional population in custody (2,195)."

More than one-third of the adult population in custody are Aboriginals. At the same time this data reflects that there was no change in this percentage of 37.9% of the Native Adult Offenders (6,625) as a Percentage of Total Adult Offender Sentenced Admissions (17,461) for 1996 (8). The Aboriginal Survey goes on to show that:

"There were 157 Aboriginal young offenders in custody on the snapshot date. This is 0.49% of the total Aboriginal youths in Alberta (1996 census youth population was 32,120) and 37.2% of the in-house young offender population in custody (422)."

Again, more than one-third of the youth population in custody are Aboriginals. At the same time it reveals the dramatic increase of 7.9% from 29.3% in 1996 of Native Young Offenders (410) as a Percentage of Total Young Offender Sentenced Admissions (1,401) (9). Furthermore, the survey goes on to state that on this date:

"There were 2,056 Aboriginal adults under community supervision. This is 2.46% of the adult Aboriginal population (83,810) in Alberta and 17.4% of the total adult offender population under community supervision (11,786)."

Less than one-fifth of the adult offender population are Aboriginals under community supervision. This is reflective of longer in custody terms for Aboriginals in Alberta jails. Especially when Aboriginals have failure to appear charges on record which affect early release or pre-trial release, when the belief is that the subject will again fail to appear in court. For Aboriginal youth, they rate similarly as the survey reports:

"There were 853 Aboriginal young offenders in Alberta were under community supervision on February 28, 1998. This is 2.66% of the total Aboriginal youths in Alberta (32,120) and is 16.2% of the young offender population under community supervision (5,268)."

Again, less than one-fifth of the young offender population are Aboriginals under community supervision. One can only assume that this is for the same reasons as above for their Adult counterparts.

"3% (3439) of the Aboriginal population (115,930) were in custody or under community supervision on the snapshot date."

In relation to Aboriginal population as a percentage of the total population of Alberta, the above data come backs the larger issue of over-representation of Aboriginal people in the Alberta justice system.

I. ABORIGINAL COMMUNITY CORRECTIONS PROGRAMS

In regards to resources and funding, the numbers are also disproportionate in terms of it not being reflective of the number of caseloads, especially those Status (First Nation) and Metis offenders under community supervision, for whom Aboriginal justice initiatives is funded. Once again the numbers have been extrapolated from the ABORIGINAL OFFENDER SURVEY for the snapshot date of February 28, 1998:

COMMUNITY CASELOADS:

Total Aboriginal Adult Offender population (11,768) under community supervision on snapshot date. Of this the percentages for Status and Metis are:

Status (First Nations)	Metis	Heading
72.1% (1,482)	24.3% (500)	total under community supervision
72.2% (1050)	24.7% (360)	on probation

CUSTODY CASELOADS:

Total Aboriginal Adult offender population (2,056) in custody on snapshot date. Of this the percentages for Status and Metis are:

Status (First Nations)	Metis	Heading
63.6% (530)	32.9% (273)	total in custody

COMMUNITY CASELOADS:

Total Aboriginal Young Offender population (853) under community supervision on snapshot date. Of this the percentages for Status and Metis are:

Status (First Nations)	Metis	Heading
62.3% (528)	27.5% (233)	total under community supervision
63.1% (419)	27.1% (180)	on probation

CUSTODY CASELOADS:

Total Aboriginal Young Offender population (157) in custody. Of this the percentages for Status and Metis are:

Status (First Nations)	Metis	Heading
55.4% (87)	32.5% (51)	percentage of total in custody

It is quite obvious that in regards to the overrepresentation of Aboriginal people in the Alberta justice system, First Nations people make up a large percentage of those numbers. Allocation of resources must be reflective of these rates. Presently that is not the case.

Total Funding:	$7,339,194.00
First Nations Programs	$1,725,661.00	receive 23% of funding
Native Counselling Services of Alberta	$3,471,701.00	receive 47% of funding
Other	$2,141,832.00	receive 30% of funding

Therefore, although First Nations Community Corrections Programs caseload is 72.1% (1,482) for Adult offenders and 62.3% (528) for Young offenders, they receive only 23% of the funding directed for Aboriginal people.

K. TREATY SIX FIRST NATIONS RECOMMENDATIONS

Alongside the Treaty position, First Nations understand that they are surrounded by the Province of Alberta geographically and are involved in the provincial justice system and are impacted by that system. This is undoubtedly factual and evident even prior to the introduction in 1951, of Section 88 of the Indian Act which declares,

"General provincial laws applicable to Indians.- Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under the Act." (Consolidated Native Law Statutes, Regulations and Treaties:p.40) (10)

Furthermore, First Nations people are fully aware that we are entangled amongst Canadian Federal legislation, policy, administration of programs, resources and so forth, that have at the same time redirected the application of funds and resources to their Provincial Government level; thus, putting First Nations in a forced relationship with a "third party" disconnected from the original Treaty agreement.

First Nations, are not attempting to implement changes that are inconsistent with the original Treaty Six or Federal legislation. Further development of a working relationship with the Federal Government through the existing bilateral process is stressed. At the same time, First Nations people realize that we are limited to implementing change and improvements to the existing Provincial justice system from within the confines of that system. First Nations people also understand that it is not a question of conforming First Nations; and all aboriginal peoples for that matter, into the boundaries of a eurocentric institution. But, rather, recognizes that changes are necessary to improve the justice system to be sensitive to Aboriginal culture.

RECOMMENDATION TO FEDERAL GOVERNMENT:

First and foremost, the First Nations of Treaty Six recommend that the Government of Canada must meet the obligations passed to it by the Government of Great Britain by establishing a bilateral process for the implementation of all Treaty obligations with First Nations people. As this relationship develops, then First Nations and Provincial relationships will evolve accordingly.

RECOMMENDATIONS TO THE GOVERNMENT OF ALBERTA AND ALBERTA JUSTICE SYSTEM:

While First Nations will continue with the existing bilateral process on Treaty matters with the Federal government; and, until such time as First Nation people resume authority and jurisdiction over matters concerning First Nations peoples and including matters of peace and good order: It is our conviction that in the interim, the provincial government need to improve the justice system that it administers and which it and the federal government has forced upon First Nations people.

The following are areas of the justice system affecting First Nations people that the Alberta Provincial government and the Alberta Justice system must address and make necessary changes and improvements:

A. POLICING: First Nations Policing

1. The Province must agree to establish a forum in consultation with First Nations to address issues surrounding First Nations Policing.
2. The focus of the consultations is to ensure that resourcing for First Nations Policing is based on a community-by-community assessment of needs.
3. The needs assessment tools are to be mutually agreed upon between First Nations and the Province.

B. CORRECTIONS

1. Community Corrections.

• The focus of First Nations community corrections to be First Nations community based. Consistent with the Alberta Minister of Justice speech at the First Nations Justice Conference, as follows:

As well, programming to be directly accountable to the people/community being served.

• Correctional Services Division review its contracts with non-community leased Aboriginal Service agencies and transfer program responsibilities, directly to those communities interested in delivering programs, on a priority basis -- for example, the Criminal and Family Courtworker contracts.
• Development of community based First Nations community corrections initiatives to be a priority for the Alberta Department of Justice. Consistent with Alberta Minister of Justice speech at First Nations Justice Conference, as follows:

• Existing First Nation Community Corrections Agreements to be upgraded to reflect those components originally identified as essential to the successful implementation of such initiatives. Such components include:
  • Probation Program: both Adult and Young Offender
  • Criminal Courtworker Program
  • Elders Program
  • Crime Prevention Program
  • Supervision/Management Structure
• Such agreements to also be expanded to include the following components:
  • Family Courtworker Program
  • Youth Workers
  • Development of Restorative Justice Initiatives through consultations with First Nations, and to include:
  • Community-based Peacemaker/Mediator Programs
  • Establish Treaty-based Youth and Adult Healing Facilities to reflect First Nations differences (diversities)
  • Community-based Diversion Programs

2. Institutional Correctional Services

• Transfer, on a priority basis, the Footner Lake Correctional Camp, Westcastle Camp, and Medicine Lodge Correctional Camp, to interested First Nations.
• Province to discuss the Joint Administration of the Edmonton Young Offender Centre with First Nations.
• Review Adult and Young Offender institutional classification systems and First Nations to be fully involved in that Review.
• A review of Native Program Coordinators and Institutional Elders Programs to be undertaken jointly with First Nations.

3. General

(i) The Minister of Justice to establish the development and upgrade of First Nations community-based correctional initiatives as a priority for the Alberta Department of Justice.

(ii) The Province to cover reasonable costs of Youth Justice Committees.

C. COURTS

1. Province to appoint more First Nation provincial court judges and crown prosecutors.

2. Province to appoint more First Nation Justices of the Peace and to establish pilot community-based Justice of the Peace Courts.

D. GENERAL

1. Provincial Government to dedicate new resources specifically to First Nations Justice initiatives.

2. Alberta Department of Justice to establish First Nations Justice as a priority area.

3. First Nations Justice to be included as a separate section in the Alberta Department of Justice Business Plan.

4. Development of concrete and specific First Nations Justice performance indicators through consultation with First Nations.

5. Development of an Annual Report on First Nations Justice issues to be submitted on an annual basis by the Alberta Department of Justice to: First Nations, Treaty Tribal Councils, the First Nations Advisory Committee, the Alberta Department of Justice and Provincial Legislature.

6. A First Nations Justice Unit be identified as a distinct and separate area within the Alberta Department of Justice, reporting to the Alberta Deputy Minister of Justice.

7. Within the Department of Justice, there be First Nations staff, dedicated to First Nations Justice issues; preferably, on a Treaty basis.

8. A commitment that the Alberta Department of Justice will work with First Nations and the Federal government, to ensure that resources available under federal initiatives (such as the Federal Aboriginal Justice Strategy) are made available to First Nations.

9. Detail how the Provincial Department of Justice intends to act upon the specific recommendations of The Royal Commission on Aboriginal Peoples Report - "Bridging the Cultural Divide" (13).

10. Province of Alberta to ensure that the allocation of resources for Aboriginal community corrections be proportionate in regards to the ratios of First Nations, Metis, and Inuit involved within the justice system.

1. Ted S. Palys: Considerations for Achieving "Aboriginal Justice" in Canada. T.S.Palys/School of Criminology/Simon Fraser University. 1993.

2. Sharon Venne. "Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference." UBC Press. Vancouver, British Columbia. 1997.

3. Sharon Venne. same as above.

4. Further suggested readings include:

http://www.usask.ca/nativelaw/publications/jah/yazzie2.html: His Honour Robert Yazzie. The Navajo Response to Crime Justice as Healing Vol. 3, no.2 (Summer 1998): speech delivered by Chief Justice Yazzie at the National Symposium on Sentencing: The Judicial Response to Crime at the American Juicature Society, San Diego, California, November 2-3, 1997.

http://www.usask.ca/nativelaw/publications/jah/okane.html: Patricia A. Monture-Okanee. Justice as Healing: thinking about change. Justice as Healing: A Newsletter on Aboriginal Concepts of Justice Native Law Centre. University of Saskatchewan. (Summer 1995).

http://www.usask.ca/nativelaw/publications/jah/ross3.html: Rupert Ross. "Seeing the world differently". Discussion paper, Surfing the Flux: Exploring the Roots of the Aboriginal Healing Perspective. Justice as Healing : A Newsletter on Aboriginal Concepts of Justice. (Summer 1995).

5. "Aboriginal Offender Survey". Research Unit, Division Support Services, Alberta Correctional Services. Date: February 28, 1998.

6. Same as above.

7. Same as above. All data other otherwise numbered in sections H. and I., are collected from this survey.

8. Alberta Justice. Statistical Data. CoMIS 1996.

9. Alberta Justice. Statistical Data. CoMIS 1996.

10. "Consolidated Native Law Statutes, Regulations and Treaties". Thompson Canada Ltd. Scarborough, Ontario. 1994.

11. "Aiming for Survival" - First Nations Justice Conference, March 17 - 20, 1998. Speech given by Minister of Justice - Honourable Jon Havelock, March 20, 1998. Quote on Page 22.

12. "Aiming for Survival" - First Nations Justice Conference, March 17 - 20, 1998. Speech given by Minister of Justice - Honourable Jon Havelock, March 20, 1998. Quote on Page 19.

13. The Royal Commission on Aboriginal Peoples Report "Bridging the Cultural Divide". 1997.