RCAP and Justice

Question 1

Canadian Constitution Act, 1982:
1. What is section 35 (1)?

2. Where is it used? What levels of the court?
3. Why is it significant?

Answer 1

1. It recognizes and affirms the existing Aboriginal and treaty rights of Aboriginal peoples of Canada
2. Used in case law today at the supreme court and provincial court level
3. It is significant because it is the highest form of recognition for Aboriginal peoples and it is enshrined in the Canadian Constitution–> has come a long way because government didn’t want to recognize their rights in this legislation initially

Question 2

Meech Lake Accord:
1. When was it proposed?

2. In 1987, How did Quebec start it?
3. What did Brian Mul Rooney?
4. Explain Manitoba’s voting stipulations
5. Why did every province have to agree?
6. What was the significance of Elijah Harper’s actions?

Answer 2

1. 1987
2. They wanted to have the constitution amended so they could have greater power and sovereign authority (political authority) recognized within the Constitution
3. He said he would give every province 3 years, so they had until 1990 within their province and within provincial and territorial legislatures to opt into this agreement for the Constitution to be amended to recognize Quebec as a more sovereign entity within Canada and as a founding partner
4. Manitoba was one of the provinces that required every member of the legislative assembly (Mla) to vote–> they said that every Mla had to vote and if 1 person said no then Manitoba could not ratify this, and the Canadian constitution could not be amended
5. Every province would have to agree for such a huge and monumental amendment to occur at the constitutional level.
6. In 1990, when the members of the legislative assembly were sitting in the legislator, Elijah Harper, an Indigenous man, held up an eagle feather and said “no” –> prevented Manitoba from opting in and the Meech Lake Accord from moving forward so the amendment to the constitution was never made

Question 3

The Charlottetown Accord:
1. Why was it proposed?

2. What did it include?
3. Why wasn’t it successful?

Answer 3

1. It was proposed 2 years later as a response to the Meech Lake Accord failing
2. It included the same amendment that was mentioned in the Meech Lake Accord + contains more increased political power for Aboriginal nations to have constitutionally protected third-order governance within Canada
3. Because the majority of Canadians voted against it and it dies

Question 4

RCAP:
1. What is it?

2. What is it?
3. What does it speak to?
4. When was it developed?

Answer 4

1. The Royal Commission of Aboriginal Peoples
2. Road map on how to have a more just relationship between Aboriginal peoples and Canada
3. Speaks to land claims, residential schools, Indigenous woman’s rights, violence against Indigenous women, educational funding
4. Developed and announced during the Oka crisis –> land dispute about the town of Oka between the Indigenous community and Quebec

Question 5

1. What 4 things does RCAP strive for?
2. What are the 3 facets of mutual recognition?
3. What is the goal of sharing based on?
4. What transformation is involved in the goal of mutual responsibility?

Answer 5

1. Mutual recognition, Mutual respect, sharing, and mutual responsibility
2. Equality, co-existence, and self-government
3. Based on the long overdue recognition that Canada’s past and present prosperity rests on a relationship of sharing extended by Aboriginal peoples
4. The transformation of a colonial relationship into a partnership with joint responsibility for the land

Question 6

What are the 5 main ideas within RCAP?

Answer 6

1. Indigenous nations have to be reconstituted.
2. Assumption of powers by Indigenous nations.
3. Reallocation of lands and resources.
4. Governance and economic self-reliance.
5. Economic development

Question 7

What are the 5 precursors leading to Indigenous overrepresentation?

Answer 7

1. Victimization
   - What is experienced prior to imprisonment (i.e., survivors of residential schools, sexual violence for woman etc.)
2. Residential Schools
   - specific to Indigenous Populations in Canada and that experience produces unique circumstances that are precursors as to why Indigenous peoples are overrepresented and tied to the justice system
3. Lack of equal access
   - ie., Lack of: legal representation, Indigenous peoples as lawyers, juries or judges, etc.
4. Child Welfare System
   - Apprehension (removing from the home) happens at much faster rates
5. Education Systems
   - Funding is less on reserves

Question 8

Barriers contributing to Indigenous overrepresentation:

1. Explain Systemic racism
2. Explain the 2 ways systemic racism manifests itself

Answer 8

1. Systemic racism arises from policies and practices that are established in institutions (public or private) and are exclusionary of particular groups of people (usually race or gender).
2. a. Institutional racism: racial discrimination that derives from individuals carrying out the dictates of others who are prejudiced or of a prejudiced society

b. Structural racism: inequalities rooted in the system-wide operation of a society that excludes substantial numbers of members of particular groups from significant participation in major social institutions.

Question 9

Anishinaabe Clan System:
1. Who are the Anishinaabe clan systems inherited from?

2. Who are the Haudenosaunee clan systems inherited from?

Answer 9

1. Anishnaabe Clan systems are patrilineal–> inherited from the father
2. Haudenosaunee are matrilineal –> inherited from the mother

Question 10

What are the 6 clans and their roles?

Answer 10

1. Crane and Loan Clans:
   - Chieftanship
   - Balenced government
   - Two clans ensure accountability
2. Bird Clan:
   - Spiritual leaders
   - Eagle is the head of the Bird Clan
   - Delivering a vision of well-being to the nation
3. Bear Clan:
   - Protectors of the people
   - Legal guardians and police within the community
   - Vast knowledge of medicinal plants
4. Fish Clan:
   - Intellectuals, Teachers and Scholars
   - Aid in the development of youth mentally and spiritually
   - Intermediary between the Crane and Loon clans
5. Hoof Clan:
   - Caretakers of the community
   - Shelter and recreation
   - “Poets and pacifists avoiding all harsh words”
6. Marten Clan:
   - Master strategists
   - Warriors with the community
   - Hunters and gatherers
   - Defenders of land/hunting territory

Question 11

The Gitksan Legal Order:

2. Define Primary Laws
3. Define Secondary Laws
4. Define Strict Laws

Answer 11

2. Primary Laws: These are the rules that have to be followed to carry out one’s reciprocal obligations to others. (i.e., asking permission of an animal or plant before taking it, never taking more from the land than one needs, and always giving something in return)
3. Secondary Laws: These are rules that enable people to interpret the primary laws. These are the rules governing the feast hall, where the Houses, through their chiefs, validate and recreate the original relationships of the host House group, and also deal with such matters as the succession of individuals within the host House to chiefly names and the allocation of use rights to lands and resources.
4. Strict Laws: These are constitutional in nature, being concerned with establishing and maintaining the legal framework of the society and its ability to maintain its obligations to the land. Examples include the law against marrying within one’s own clan, the inalienability of territory, and a lineage‘s absolute liability for human actions on its territory.

Question 12

Reading: J. Ponting, “Getting a Handle on Recommendations of the Royal Commission”

1. What do we need?
2. What are the suggestions for New Structures and Organizations?

Answer 12

1. If we want to send a clear signal to the government that Canada intends to reform its fundamental relationships with Aboriginal people, practical steps need to be made
2. a) Aboriginal Parliament: an authentic group of advocators to provide advice to the House of Commons regarding matters relating to Aboriginal peoples

b)A National Forum on the Prevention of Suicide Among Aboriginal People and a small accompanying secretariat

c) Aboriginal justice systems

d) The creation of an Aboriginal Peoples’ International University –>promote traditional knowledge

Question 13

Reading: P. Angus-Monture, “Lessons in Decolonization: Aboriginal Overrepresentation”

1. Summarize it

Answer 13

• Caring and connection is the answer to how to keep Aboriginal people out of the justice system
• past reforms have not been taken seriously which means a serious conclusion can not be made for going in a new direction
• It is clear that Indigenous people are overrepresented in the Justice system which alone shows the justness of the system
• There are no programs and opportunities for Indigenous people–> nobody to advocate or be on their side
• The system was made by men for men so it is not considerate to Indigenous females –> they are alongside men in prison which creates even more issues
• Criminal Justice system only takes into account the experiences of those who came in direct contact with the penal system so it diminishes and failed to recognize the overall impact the system has on communities

Question 14

Film: “We Will Stand Up”
1. What is it about
2. What happened to Colten?
3. How was it an injustice?
4. What does this film show?
5. What important idea did Colten’s cousin bring up in his speech at the United Nations?

Answer 14

1. The film highlights racism in Canada’s judicial system as it covers the killing of Colton Boushie and his family’s search for justice
2. Saskatchewan farmer Gerald Stanley shot and killed Colten Boushie, a young Cree man
3. Stanley was initially charged with second-degree murder, but following subsequent trials he was acquitted of all charges in 2018.
4. The importance to speak up:
   - Boushie’s family traveled to the United Nations to tell Colten’s story and demand a review of systemic racism against Indigenous peoples in Canada
   - Indigenous people have not been listened to, and I think the family, because of their advocacy, because of their ability to speak out, brought light to that structural violence
5. The element of choice: Stanley killing Boushie–> he did not have to die and the situation did not have to go like that

Question 15

Explain the following Indigenous justice concepts:

1. Restorative
2. Rehabilitation
3. Communal
4. Process-Oriented

Answer 15

1. Restorative
   - Indigenous people want to account for the lineage to restore it or balance it within society
   - Community-based
   - Offenders have the option to be dealt with by the community so that the health of the community itself can be preserved
   - Laws that are in balance with the natural environment
2. Rehabilitation
   - Public shaming, financial or physical labor to reconstitute for what was lost
3. Communal
   - Society is involved in what justice will look like
4. Process-Oriented
   - On-going process of establishing good legal order