Law Times

Page 12 May 1, 2017 • Law TiMes www.lawtimesnews.com FOCUS ment differs from others is that it also involves the provincial gov- ernment, observes Signa Daum Shanks, assistant professor at Osgoode Hall Law School and director of indigenous outreach. Historically, she says, trea- ties result from consultation between the federal government and a First Nation. A provincial government, by its exclusion, may later claim no responsibilities — she points to the ongoing issue of the lack of potable water on reserves as an example. That inclusion extends to mu- nicipalities, too, she says, because they fall under the purview of the provincial government. "The more modern agree- ments there are that involve provinces, then the more over- lapping these relationships be- come. So this is one that I think really acts as a template for Ontario about that idea of the province participating. So that's pretty precedent-setting here," says Shanks, a Métis. "That idea of having Ontario at the table is really, really monu- mental." Another unique aspect is the inclusion of heritage and culture in the Algonquin agreement, which includes a protocol per- taining to archeology and arti- facts and raises the concept of defining culture, which Shanks says aren't typically parts of these arrangements. A concern also is leaving room for future generations in these "final agreements" for self- governance. And Shanks likes that the Algonquin have left some room for f lexibility, taking heed from some problems in history when making agreements. The problem that Bruce Mc- Ivor of Vancouver-based First Peoples Law sees is that this type of agreement serves as an extension of colonization and limits the inherent rights of in- digenous people. "The main issue now, at least from my perspective, is these types of proposed settlements aren't really about reconcilia- tion. I think they're colonization masquerading as reconcilia- tion," says McIvor. "They begin from the same perspective that has been at the centre of Canada's policy with indigenous peoples for hun- dreds of years and that's that the purpose is to remove them from their land." A preferred approach, he adds, is to recognize indigenous peoples' interest in their territo- ries and their right to participate in the decision-making about how the land is developed or not developed. He says the Supreme Court of Canada has signaled that there is space and scopes for those types of negotiations, based on rec- ognition of aboriginal title and their interest in the land. LT success to the ability to connect individuals to communities and offering them a sense of belong- ing and pride in who they are after a turbulent history docu- mented by the Truth and Recon- ciliation Commission. And he points to a series of decisions by the Supreme Court of Canada that found aboriginal people face direct and systemic discrimination in the criminal justice system. "That system, that aboriginal people are disproportionately going through, is not a system that can very easily deal with ab- original people because there are a lot of problems with it. So tak- ing people out of the system is a really good first step, and having them meet with the members of the community who understand what they're doing and having people buy into what they need to do to start to go on a healing path is shown to be effective," says Rudin. But there is also some devel- opment in the use of sentenc- ing circles in court, as another restorative-type approach, he adds. Reitberger sees the restor- ative justice process as having other applications, including the enforcement of bylaws, such as where alcohol is banned in in- digenous communities. "They're dry communities, but they have no way to enforce these bylaws because the courts will not enforce the bylaws and, therefore, they're powerless. So we are proposing they use the circle process. "So if someone is a bootleg- ger, we bring them into the circle, we let them hear about how their actions are affecting the com- munity and we also talk about what can be done to change this behaviour," she says. A "reintegration circle," she adds, can be part of a healing plan when an individual comes out of custody and back into the community to ensure they get access to the caregivers and sup- port that is necessary to make the individual's return to the community successful. Reitberger says restorative justice is here to stay and she's hoping to build on current suc- cesses by adding to the four restorative justice workers cur- rently working in her service area, through federal and pro- vincial funding. "It's all about community wellness and healing," she says when cases are diverted from the criminal process. "It just generally has a positive effect on everybody." LT Continued from page 10 Recognize indigenous peoples' interest in their territories Systemic discrimination Continued from page 11 Signa Daum Shanks says that, histori- cally, treaties resulted from consultation between the federal government and a First Nation. HOSTED IN PARTNERSHIP WITH BRONZE SPONSOR PLATINUM SPONSOR NO TRANSFORMATION WITHOUT INSPIRATION The Canadian Lawyer InHouse Innovatio Awards celebrate in-house counsel, both individuals and teams, who have found ways to show leadership by becoming more efficient, innovative and creative in meeting the needs of their organizations within the Canadian legal market. 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