GENOWIN DISOMIN/GUNOWEN Disoimin KEEPING OURSELVES

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1 GENOWIN DISOMIN/GUNOWEN DISOMIN 1 KEEPING OURSELVES

A Comparison of Justice in Four First Nations 1 | 1 | The Submission of the Independent First Nations Alliance to the Royal Commission on Aboriginal Peoples 1

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1 Garnet Angeconeb Executive Co-ordinator • Independent First Nations Alliance 1 601/2 Front Street Sioux Lookout Ontario 1 September 1993 P8T 1K6

1 GENOWIN DISOMIN/GUNOWEN DISOiMIN KEEPING OURSELVES

"Thank you for letting me talk about the past. I know something about the past.

We are trying to get back something that was lost. We lost it because someone told us that there was a better way.

We are trying to keep ourselves, to govern ourselves

We are trying to get back what we have lost and what we know is right"

Albert Peters Elder Pikangikum First Nation, August 5,1993

The title of this paper is the term used by some elders for self-government. The title is in Ojibway (genowin disomin), Oji-Cree (gunowen disomin), and English (keeping ourselves). GENOWIN DISOMIN/GUNOWEN DISOMIN KEEPING OURSELVES

A Comparison of Justice in Four First Nations

The Submission of the Independent First Nations Alliance to the Royal Commission on Aboriginal Peoples

Summary i

Map: The Communities of the Independent First Nations Alliance iv

I Introduction 1 i The Independent First Nations Alliance 4

ii The Four First Nations 5

II Pikangikum in 1932: A Glimpse of the Past 10 in Traditional Methods of Social Control amongst the First Nations of the Independent First Nations Alliance 16 i A Complex Social Control System 18 ii Justice in the Elders' Youth 28 IV Social Control Today amongst the First Nations of the Independent First

Nations Alliance 32

V Destructive Forces 42

VI Conclusion 58

NOTES 63 Appendix 1: Charged Persons Statistics, 1988-1990: Big Trout Lake First Nation, Muskrat Dam First Nation, Pikangikum First Nation. Appendix 2: R. v. Hatchard, [1993] 1 C.N.L.R. 96 (Ontario Court, General Division). Appendix 3: Project Description and Research Team. Appendix 4: Justice Concerns of the Independent First Nations Alliance, Presented to the Royal Commission on Aboriginal Peoples, Big Trout Lake, December 3, 1992. GENOWIN DISOMIN/GUNOWEN DISOMIN

KEEPING OURSELVES

A Comparison of Justice in Four First Nations

The Submission of the Independent First Nations Alliance to the Royal Commission on Aboriginal Peoples

Summary

The Independent First Nations Alliance works with the Big Trout Lake First Nation, the Lac Seul First Nation, the Muskrat Dam First Nation, and the Pikangikum First Nation, situated in Northwestern Ontario, four very different First Nations. The language of two of the communities is Ojibway while the other two speak Oji-Cree. Lac Seul is a signatory of Treaty 3, signing in 1873. Pikangikum signed Treaty 5 in 1875. Big Trout Lake and Muskrat Dam signed an adhesion to Treaty 9 in 1929.

This paper focusses on only one aspect of First Nations life: on the destruction of indigenous social control systems and their replacement by the Euro-Canadian justice system. The four First Nations which work together in the Independent First Nations Alliance offer an illustration of the state of First Nations justice today, and of the ongoing process of colonization in relation to justice.

The Alliance is funded through the DIAND tribal council funding formula but the four participating First Nations do not consider themselves a tribal council. The Four First Nations remain autonomous and independent of each other as they have been since time immemorial, working together through the Alliance where doing so does not compromise the individual independence of each of the member First Nations.

In this research, the Alliance examined the state of community social control practices in each of the communities. The project was discussed with the Chiefs and Councils of each of the First Nations. The research team also attended a gathering of the four First Nations in Lac Seul. Fifteen elders and a number of other persons were interviewed. All but one of the

Independent First Nations Alliance i Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum interviews were recorded in the native language and the tapes were transcribed into English • and the results analysed.

The effects of the encroachment of Canadian society are readily seen and felt in these four communities. The degree of that effect varies from most severe in the Lac Seul First Nation through a somewhat lesser effect in Pikangikum and Big Trout to its least destructive manifestation in the Muskrat Dam First Nation. While the destruction which has occurred is not equal throughout the four First Nations, the prognosis for each is the same. If nothing is done to halt further encroachment, only increased disempowerment and assimilation lie ahead.

Only 60 years ago, these communities had been little affected by colonization. Beyond being brought within the fur trade economy, the First Nations of Northwestern Ontario continued to live very much in accord with the traditions handed down from the past.

The elders described a complex social control system which clearly has elements which meet any definition of a justice system. At the service of the community and its leaders was a social control system which offered different instruments for different degrees of need. The formal "Circle" process was used to deal with serious behavior and also to publicize what the leaders thought was appropriate behavior. Each of the clan-based groups which made up the larger community had one or more designated persons participating in the Circle.

Meetings of the circle would be held where matters arising were discussed and dealt with. It . would appear that the needs of both victim and wrongdoer would be dealt with in an atmosphere where caring and the healing of community relationships was the prime motivator.

Chiefs and the designated persons also had formal roles which required then to police the community and intervene where appropriate. Through public meetings Chiefs also kept community members informed of what was considered appropriate conduct. The Chiefs had an informal role in the community visiting people and making sure that everyone was cared for and had a sufficient supply of necessities.

In the 1920s and 1930s, when the elders participating in this study were young, the effects of contact on traditional justice were already visible. Lac Seul, the most southern band, was already beginning to be brought within the white justice system. Pikangikum, less impacted, was beginning to experiment with some aspects of the white justice system. In the north, at Big Trout Lake and Muskrat Dam, the traditional practices was beginning to be used to serve the needs of the Indian Agent.

Massive changes have happened in the last 60 years with the most severe effects taking place since 1950. The once peaceful communities are all experiencing rising crime rates. The complete social control system no longer functions in Big Trout Lake which is now policed by the OPP supported by First Nations constables and offenders are now tried by the Ontario Courts. In Pikangikum even more elements of the white justice system can be found. Along with the OPP and the Courts, the Native Justice of the Peace Courts hold regular and frequent hearings in the community. Legal Aid services are provided through a Community Legal

Independent First Nations Alliance ii Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum Worker from the Nishnawbe-Aski Legal Services Corporation who lives in the community. • In Lac Seul today, almost all matters of social control are dealt with by agencies which are resident outside of the community. Lac Seul is policed by the Sioux Lookout detachment of the OPP and offenders attend court in Sioux Lookout.

Only Muskrat Dam offers grounds for hope. There, the traditional practices have been successfully brought into the present. The OPP have only been called upon 3 times in the history of the community and the Ontario Courts only once. But even there the future is clouded. Already this year, the OPP have been called in three more times and another court date is scheduled. Without help, it would appear that Muskrat Dam too, traditional justice is threatened.

Analysis of the causes of the destruction of traditional social control methods reveals that the present policies and practice of the federal and provincial governments are destructive of traditional justice. The destructive forces are both direct and indirect. The fragmented, departmentalized approach of Canadian authorities to government are antithetical to the holistic First Nations approach to government and justice. White society deals with justice in isolation from other aspects of community relations. In First Nations, all aspects are equally important.

Canadian authorities fund roles in the community that support their needs but often fail to provide funding for matters essential to community needs. They fund many of the key players in traditional justice, such as Chief and Council, to perform new tasks related to the national scheme. While funding them in their new role, the authorities fail to provide funding to replace them in their old roles. Similarly, while the authorities provide apparently unlimited funding to take their justice system to the communities, they provide no funding to support the development of traditional mechanisms.

Alcohol, residential schools, loss of control over education generally, and the imposition of Canadian game, fish and other laws on First Nations have all contributed to the destruction of traditional systems in the communities.

This research demonstrates that today the process of colonization is ongoing and that First,. Nations justice is one of its major targets. We also suggest that the role of the federal and \ provincial governments in this is advertent.

The Independent First Nations Alliance and the member First Nations have long been seeking to preserve and revitalize traditional justice. The First Nations of the Alliance seek the time and funding to develop, adjust, adapt and revitalize their traditional justice practices so as to be able to retain them into the future. The Alliance asks that the Royal Commission recommend that the federal and provincial governments step back from imposing their justice system and that they fund First Nations to develop their traditional justice systems and adapt them to modern conditions.

Independent First Nations Alliance iii Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum The Communities of the Independent First Nations Alliance

Hudson Bay

James Bay

Boundary of Nishnawbe-Aski Nation:

Not Drawn to Scale

Big Trout Lake First Nation Lac Seul First Nation Muskrat Dam First Nation Pikangikum First Nation GENOWIN DISOMIN/GUNOWEN DISOMIN KEEPING OURSELVES

A Comparison of Justice in Four First Nations

I Introduction

Throughout its history Canada has recognized First Nations rights. In 1763 the first explicit recognition as Nations is found in the Royal Proclamation of 1763} Through the

19th century treaties were made between the First Nations and the Crown in a nation to nation relationship.2 In 1982, the leaders of the Canadian nation entrenched their recognition of First Nation rights in the Constitution of Canada.3 In 1991, the Government of Ontario, which was also a signatory of the 1929 Treaty signed at Big Trout Lake, issued its Statement of Political Relationship affirming its recognition of the inherent right of First Nations to self- government.4 In 1992, the Prime Minister together with all of the provincial First Ministers including the Premier of Ontario, negotiated the Charlottetown Accord which included a recognition of the inherent right to remain First Nations and to be self-governing.5

History, however, proves that recognition is not enough. Contemporaneous with these acknowledgments of the rights of First Nations has been the ongoing and relentless destruction by Canada of the First Nations as independent, viable communities. The Nations the Crown recognized in 1763 were groups of independent, fully self-governing peoples, living in their own lands according to the traditions handed down from time immemorial. In these opening stages of colonization, the settlers left the First Nations internal structures ^^ alone. For the most part the fur trade allowed First Nations to live as they wished, requiring

only those changes necessary for the move from a hunter/gatherer economy to a one centered

around trapping and the supply of furs and food to the traders and trading posts. While First

Nations rights in the land were not fully recognized, their forms of governance, including

social control mechanisms remained more or less intact. When the church of the Hudson's

Bay Company felt that their own interests were best served, they did interfere and control

some aspects of First Nations life.

With Confederation, the newly formed Canadian nation looked to the Indian lands in

the west, including what is now Northwestern Ontario, for future growth. In 1869, Canada

bought the interest of the Hudson's Bay Company in the First Nations lands. Starting in

1871, Canada began the process of making treaties with the First Nations in those same lands,

greatly accelerating the rate of colonization. The treaties made possible the enormously

destructive influx of mining, logging and hydro-electric development. With the imposition of

the Indian Act, the systematic disempowerment of First Nations peoples began as

governments used that act to undermine and destroy First Nations governmental practices.

Resource extraction and the depletion of the trapping economy in the 1920s, brought

on a second phase in the process of colonization. First Nations, even those in the isolated

regions of Northwestern Ontario, were brought into contact with the wage economy working

in logging and mining. For a time, the internal workings of the First Nations of Northwestern

Ontario survived more or less unscathed even though the impact of colonization was

gathering momentum.

In 1951, amendments to the Indian Act increased the intensity of the process of

colonization. Federal and provincial governments have since taken a very active role in

Independent First Nations Alliance 2 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^relation to First Nations governance. Residential schools have taken their toll, particularly on

the value systems of the First Nations and on their languages. Increasing the role of the

Canadian legal system, with its focus on individual rights and on punishment and retribution,

has placed further stress on First Nations values. Since 1982, the Charter of Rights and

Freedoms threatens the communal values held by First Nations. Communal values were

central to the intricate clan relationships which governed all aspects of Anishinaabe life.

The process of colonization is a long and slow, and seemingly unstoppable process.

Despite the recognition of the rights of First Nations to remain First Nations, little by little,

the Canadian nation has acted as the catalyst for the destruction of the First Nations lifestyle.

And today that process continues. It is a process which is resisted. The reality of that

process, and of the resistance to it, can be seen today in the four First Nations of the

Independent First Nations Alliance.

First Nations are holistic societies and to some extent it is inappropriate to focus on

only one aspect of their functioning. Nevertheless, we feel that, by focussing on only one

issue, we can show in dramatic fashion, one particularly damaging effect of colonization as it

is presently being experienced by First Nations today. Our research focuses on matters of

social control: on the destruction of indigenous social control systems and their replacement

by the Euro-Canadian justice system. The four First Nations which work together in the

Independent First Nations Alliance offer an illustration of the state of First Nations justice

today, and of the ongoing process of colonization in relation to justice. In these pages, we

hope to show the Commissioners one part of the reality of the process of colonization and we

hope that they will join their voices with ours and urge federal and provincial governments to

bring it to an end.

Independent First Nations Alliance 3 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum i The Independent First Nations Alliance

Four First Nations make up the Alliance: Big Trout Lake First Nation, Lac Seul First

Nation, Muskrat Dam First Nation, and the Pikangikum First Nation. The Alliance is a

unique organization which is structured in a way which respects the independent nation-status

of each of its member First Nations. The Alliance is not a tribal council. The four First

Nations work cooperatively together where that approach respects their individual autonomy,

but each First Nation retains absolute control over its own government. They are independent

in the full sense of the word.

The Alliance resists Indian Affairs driven model which sees tribal councils taking up

the service delivery role which the Department of Indian Affairs is giving up. The Indian

Affairs tribal council model is viewed by the Alliance as simply one more example of the

ongoing colonization of the First Nations by Canada. The Alliance does work in area of

service delivery but in a way which is different and unique. The Alliance organizational

structure is based on customary and traditional norms which leave decision-making power and

control over implementation in the communities. This approach is also brought to matters of

justice. The First Nations of the Alliance reject the idea of a single justice system, especially

one that is profoundly unbalanced and which is based on punishment and retribution. Each of

the member First Nations has unique needs in the area of justice and each must retain the

power to design and implement justice systems which meet those unique needs.

The four communities which make up the Independent First Nations Alliance are very

different from each other. In size and degree of contact they vary greatly. In economy they

Independent First Nations Alliance 4 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ vary. While they are all Anishinaabe, there are significant differences amongst them. As

Garnet Angeconeb, Chairperson of the Alliance said in his address to the Royal Commission

in Big Trout Lake in May 1992:

This is the approach thè Alliance brings to all its areas of activity. The right of each First

Nation to self-government requires that each First Nation must be able to decide for itself the

institutions through which it will govern.

ii The Four First Nations

The four First Nations are very different from one another. Three are members of

Nishnawbe-Aski Nation: the Big Trout Lake, Muskrat Dam and Pikangikum First Nations.

Lac Seul First Nation is allied with the Grand Council of Treaty 3 and is as well an associate

member of Nishnawbe-Aski Nation. The First Nations are signatories of three different

treaties. Lac Seul First Nation signed Treaty 3 in 1873 and an adhesion in 1874.7

Pikangikum signed Treaty 5 in 1875s and Big Trout Lake and Muskrat Dam First Nations

signed the adhesion to Treaty 9 in 1929.9

These treaty boundaries offer an illustration of how colonization has come differently

to each of these First Nations and how it affects each separately. The First Nations and their

practices played no role in situating the treaty boundaries. They were decided by the Crown

Independent First Nations Alliance 5 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^in response to administrative convenience and the needs of colonization. Today First Nations

are required to adjust their traditional activities in order to respect those boundaries.

Canadian law and the Ontario Ministry of Natural Resources which control hunting,

fishing and trapping in Northwestern Ontario, would like to restrict treaty rights to the area

covered by the Treaty which any particular First Nation has signed. The boundary between

the treaty areas, however, is arbitrary and in no way reflects local realities. Lac Seul and

Pikangikum speak the same language and, in the past, had many dealings with each other and

used the same lands for sustenance and for commercial purposes. Both retain aboriginal and

treaty rights in relation to the lands situated between the two communities.

The complications brought about by the placement of the treaty boundaries often

brings members of these First Nations into dispute with the Ministry of Natural Resources

and with the law. Traditional rights, which were never given up, are made to conform with a

version of the law which these First Nations had no role in creating and in which their rights

were not considered. Colonization, which is in part a process whereby the reality of one

people is made to conform with the needs and dictates of a different people, is readily

apparent here. The law and the enforcement of that law conforms to the needs of Canada and

Ontario and operates to obstruct the traditional practices of the First Nations.

The Royal Commission of Aboriginal Peoples visited both the Big Trout Lake First

Nation and Sioux Lookout where the Alliance office is to be found. Sioux Lookout is

situated 400 kilometres north-northwest of Thunder Bay 250 kilometres east of Kenora. Lac

Seul First Nation is made up of three communities a short distance west of Sioux Lookout

accessible by road and water. Pikangikum is a fly-in community 225 kilometres north-

northwest of Sioux Lookout. Muskrat Dam is 350 kilometres north of Sioux Lookout and

Independent First Nations Alliance 6 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^Big Trout Lake can be found 400 kilometres north-northeast of Sioux Lookout. Both Big

Trout Lake and Muskrat Dam are fly-in communities. The four First Nations, more or less

accessible from the south, differ in the degree of encroachment by the institutions of the non-

Native society.

The Lac Seul First Nation, which consists of approximately 800 persons, has suffered

the most. Contact has been longest with Lac Seul and most intense. The Canadian National

Railway passes through traditional territories of the Lac Seul First Nation and is very close to

the reserve. There has been extensive logging in the area for many years. At present logging

is taking place all around the reserve. Lac Seul, the lake on which the reserve is situated,

was flooded in the 1930s to provide hydro-electric power. Since it is readily accessible from

Sioux Lookout, alcohol is a major problem in the community. There is no court in the

community but the majority of the other aspects of the Canadian justice system can be seen

there. The offenders from Lac Seul attend court in Sioux Lookout.

Pikangikum First Nation, made up of some 1500 persons, has also been greatly

affected in recent years by the destructive effects of colonization. Large scale logging is

coming closer to the community and the lake upon which Pikangikum is situated is accessible

by road from the mining community of Red Lake. The trapping and hunting areas of the

community are now greatly impacted by logging.

The major institutions of white society, in particular the justice system, can be found

in Pikangikum. The Ontario Provincial Police are frequent visitors. The Ontario Courts hold

frequent sessions in the community. Lawyers obtain considerable business in the community.

Alcohol, although illegal in the community, is a frequent factor in the large amount of

disorder in the community.

Independent First Nations Alliance 7 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum In Big Trout Lake First Nation, which has a population of 960, the negative effects of

colonization are more recent and less severe than further south. While there is no commercial

logging in the area, it is known that there are valuable mineral deposits in the traditional

territories of the Big Trout Lake First Nation. In addition, Ontario has expressed interest in

damming the Severn River, of which Big Trout Lake is a tributary.

Neither crime nor court are as frequent in Big Trout as they are in Pikangikum.

Traditional practices are more intact. While the Ontario court system does operate in the

community, there has been no permission granted to the Justice of the Peace to hold hearings.

The members of the Big Trout Lake First Nation are aware of the threat posed by the

increasing encroachment of white society. They understand that their traditional institutions

have been severely damaged and that the value of the natural resources in their traditional

lands makes increased contact with southern society more and more imminent.

The Muskrat Dam First Nation with slightly more than 200 residents, sits at the other

end of the picture from Lac Seul. The institutions of non-Native society are not welcome in

the community. The Ontario Provincial Police has been asked to intervene in social disorder

in the community only three times in the history of the community. The Ontario Courts have

held only one hearing in the community. The community deals with justice matters through

traditional practices which have never been allowed to atrophy or be replaced by the

Canadian justice system.

The social control system of Muskrat Dam First Nation is a contemporary version of

the practices which were handed down from the past. The healing and caring philosophy has

been retained even though the processes often work in very different ways today. Muskrat

Independent First Nations Alliance 8 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ Dam offers proof that modern versions of traditional practices could be adapted to modern

conditions.

While the effects of colonization have had their least impact in Muskrat Dam, the

threat of resource exploitation is real. As with Big Trout Lake First Nation, logging and

mining have not yet reached the community, but the resources are there and the threat exists.

In addition, Muskrat Dam is situated on the banks of the Severn River and would be severely

affected should damming be permitted to go ahead.

In these four First Nations we see four different stages of colonization. Lac Seul is

the most heavily affected: by the railway at the turn of the century; by logging, mining and

flooding in the 1920s and 1930s; and by its close proximity to Sioux Lookout in the present.

Pikangikum, with mining in Red Lake in the 1940s and logging operations coming closer

with every year, is presently severely impacted. Big Trout Lake and Muskrat Dam, are by

comparison, almost on the frontier: less damaged but living with the threat of future

encroachment. The comparison is striking.

The effects of the encroachment of Canadian society are readily seen and felt in these

four communities. The degree of that effect varies from most severe in the Lac Seul First

Nation through a somewhat lesser effect in Pikangikum and Big Trout to its least destructive

manifestation in the Muskrat Dam First Nation. While the destruction which has occurred is

not equal throughout the four First Nations, the prognosis for each is the same. If nothing is

done to halt further encroachment, only increased disempowerment and assimilation lie ahead.

In this paper we demonstrate the truth of this statement in a vivid way. In a sense, the future

of Big Trout Lake and Muskrat Dam is visible in the present of Lac Seul and Pikangikum.

Independent First Nations Alliance 9 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum n Pikangikum in 1932: A Glimpse of the Past

As we have noted above, the full impact of contact was late in what is today known as

Northwestern Ontario. Although the Hudson's Bay Company was active in the area from the

earliest days of contact, they mostly left the social structure of the First Nations intact. The

imposition of the fur trade economy was perhaps the first stage of colonization, but in many

ways, it was the least destructive.

Where it suited the interests of the factors of the Hudson's Bay Company, they

ignored the norms and values of the First Nations with whom they interacted. In relation to

illegitimacy, for example, they followed their own rules and were generally not subject to the

strict regime imposed by First Nations on their own members. And as much as they were

able, they attempted to instill the individualistic values that supported their needs in the

trapping business. So, for example, while sharing of the food was still common in the 1930s,

trade goods such as beaver and other furs belonged to the individual hunter and each hunter

had his own account with the traders.10 Beyond this sort of imposition of trade-related

practices, the Hudson's Bay Company interfered little in the day to day life of the

Anishinaabe.

The intense period of colonization in Northwestern Ontario, has been the past seven

decades, with the period since 1950 being the most intense. In 1932 the Indians at

Pikangikum lived much as they had before the arrival of the whiteman. Hallowell, one of the

first anthropologists to visit the area, said of the Indians of Pikangikum and Berens River on

the shores of Lake Winnipeg:

Independent First Nations Alliance 10 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum Although their sociocultural system had long been influenced by the fur trade and Christianity, the Indians had remained politically autonomous.11

The inland bands, such as Pikangikum, had not converted to Christianity and still governed

their own internal affairs. Great changes had occurred in the economy but not, at that time,

in the way the community governed itself.

Few persons wrote about First Nations culture the region in those early days of contact

so it is not easy to describe the way of life at what was essentially the beginning of contact.

In 1932 Hallowell described Pikangikum:

The inland Indians were still living in birchbark-covered dwellings and except for their clothing, utensils, and canvas canoes, one could easily imagine oneself in an encampment of a century or more before. Women were mending nets, chopping and hauling wood (among their most traditional tasks), and stitching the birchbark covers for their dwellings with spruce roots. They could be seen scraping and tanning skins for making moccasins, for this article of clothing was used by everyone, although rubbers, purchased from the trading post, might be worn over them. Babies were still snugly strapped to their cradleboards, being carried on these useful devices on their mothers' backs. Sphagnum moss, so intimately associated with them because the Indians had discovered its highly absorbent and deodorant properties, could be seen drying in the sun in almost every camp. Evidence of the importance of fish at this season was everywhere. Nets were in the water or being mended continually. One net I saw lifted in the middle of July at Lake Pikangikum comprised 30 whitefish, a dozen tullibees, several suckers, and a half dozen other fish of different varieties. Fish caught in the morning and scaled, gutted, and split lengthwise, could be seen being cured in the sun before being lightly smoked on a rack for longer preservation. Berries were being picked by the women and children. As for the men, they were relatively idle but some ... were to be seen making snowshoe frames or canoe paddles. There was frequent dancing on specially prepared ground, sometimes within a cagelike superstructure such as that used for the Wabanowiwin, although the Grand Medicine Lodge (Midewiwin) had died out. At night the beat of a water drum often reverberated in one's ears. And when some serious problem demanded help of other than human persons, the shaking tent swayed after nightfall as the moon rose behind the tall dark spruces.12

That Hallowell, when reviewing the genealogy of the Pikangikum and other inland Bands, did

not find "a single white ancestor" testifies to the limited contact that had occurred up to

1932.13

Independent First Nations Alliance 11 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum In 1932, the Pikangikum First Nation followed a way of life which had its roots in

pre-contact times. The winter was spent in small groups dispersed throughout the hunting

territory of the Band. Speaking of the Pikangikum band and the Little Grand Rapids Band in

what is now Manitoba, Hallowell noted that the two Bands split up into 32 winter hunting

groups. Since it was the bigger Band, most of these groups would have belonged to

Pikangikum. At winter's end, the groups came back to Pikangikum Lake, to the place where

the community stands today, to spend the summer together. There, the winter groups spent

the summer fishing and engaging in religious and other activities together. While Pikangikum

was clearly a single community, the winter groups retained some separation from one another.

The clan and family-based winter groups clustered together in groups living somewhat

separately from one another.14 In a sense, one might call this community a community of

communities.

Hallowell suggests a highly internalized social order, maintained through mechanisms

closely related to spiritual beliefs and living off the land. The object of day to day life, he

notes was to pursue the "good life".15 Right conduct hunting, fishing and trapping and in

social relations, would bring good fortune and health. Inappropriate conduct would bring bad

fortune. Sharing, borrowing, and mutual exchange were central to the community ethic.

Norms included the obligation to treat each animal hunted in a certain manner. Spiritual

leaders and the spirit world also played a vital role in promoting the "good life". Sickness

and lack of success in hunting, Hallowell suggests, were seen as sanctions for improper

living,16 and confession was seen as an important way of regaining the "good life".17

Independent First Nations Alliance 12 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum This is fairly typical of North American indigenous social control processes.

Hallowell, an otherwise sensitive and insightful observer, goes on to suggest, mistakenly we

believe, that no formal social control system governed conduct in Pikangikum. He comments:

There was no council of elders or any forum in which judgment could be passed upon the conduct of adults. No institutionalized means existed for the public adjudication of disputes or conflict of any kind. ... Social control in the Ojibwa sociocultural system belonged to a type that operated through psychological mechanisms ... which compelled individuals to assume responsibility for their own moral conduct through inner control, rather than by responding to organized sanctions imposed from without.18

He also believed that Chiefs played no role in social control in their communities stating,

"Chiefs, even since Treaty 5, have had ... little local influence and have played no vital role

in social control."19 The elders who spoke to us lead us to believe that he must have been

mistaken. His short time in Pikangikum and the fact that his guides were not familiar with

the community may have contributed to this mistaken belief.

First Nations, like social groupings anywhere, need regularized systems of social

control. Where self-interest and community interest intersect, no group control is required.

In some instances the spiritual or supernatural can provide a sufficient sanction to prevent

damaging conduct. But in matters where the community interest might be damaged by the

self-interest of its members, some organized form of social control is required. In such

matters, many North American aboriginal peoples developed and maintained well-defined

systems of sanctions.

North American aboriginal peoples have used a variety of techniques for maintaining

peace within their communities. Their methods of social control varied widely, depending on

the form of social organization which a particular nation utilised. The range of indigenous

Independent First Nations Alliance 13 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ North American social control systems runs a continuum from highly organized formal

systems through to loosely organized family-based codes of conduct.

The social organization of some of the hunter/gatherers, for example, was centered

upon family hunting groups and operated mostly through psychological mechanisms.

Consequently, their systems are the least similar to what is generally thought of as a

functioning criminal law. Nevertheless, it is possible to find amongst such groups, a

functioning criminal legal system. Hoebel describes the traditional Inuit communities, which

were essentially family hunting groups, employing a traditional criminal law utilising

penalties such as capital punishment, head-butting, wrestling, buffeting and exile.20

By contrast, highly organized tribes, such as the Cheyenne of the United States plains,

developed a form of society which more closely resembles the nation state familiar to us all

now.21 Cheyenne society was not so much centered upon the family or clan, but was

organized more around large hunting and warring parties which were drawn from the many

smaller groupings of which the Cheyenne consisted. The Cheyenne legal system described by

Hoebel is a much more formal affair and more like the criminal law of western societies.

In Cheyenne society, the chiefs along with the military societies which were part of

the social organization of these tribes, were entrusted with a role which closely corresponds

with the role of criminal law in western society. Formal sanctions included banishment,

restitution and the payment of compensation. Hoebel relates that rehabilitation was a goal of

the Cheyenne system and that acts of contrition and humility would ameliorate the severity of

any sentence which might be imposed. Retribution was a definite element of Cheyenne law.

The elders interviewed for this project, lead us to believe that social control systems in

Northwestern Ontario sit somewhere between that of the Cheyenne and that of the Inuit.

Independent First Nations Alliance 14 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ Their legal system, while less centralized than that of the Cheyenne, would appear to have

been considerably more complex than the Inuit system that described by Hoebel.

The winter hunting party with its clan and family relationships was central to social

organization. The lives of the members of these winter groups were structured around their

life on the land and their hunting, fishing and trapping. Their spiritual beliefs focussed upon

respect for the land and its bounty. Education waS carried out in these clan groups and in

winter, in the hunting territory, the history and culture was passed from person to person

through the telling of the myths and tales of the people. The language played an essential

role in education, providing a structure for behavior, delineating such things as who was kin

with whom and who one might be permitted to marry.

A community organized in this way could be expected to have an internalized social

order, but these winter communities grouped together in summer encampments which formed

a larger social unit. Hallowell suggests that this was the social unit around which social life

was organized. The elders of Big Trout Lake suggest that that community was the social unit

around which many Bands in their territory were grouped. This more complex community

would, it is suggested, require some formal means of reinforcing appropriate behavior.

Clearly then, the social structure of the Anishinaabe of Pikangikum, Big Trout Lake

and the other groups in what is now Northwestern Ontario was more complex than a simple

family-based hunting group. From Hallowell's account, Pikangikum was made up of a

number of distinct clan-based winter hunting groupings. The land surrounding the summer

community was utilised by these winter parties for their hunting, fishing and trapping. The

winter parties appear to have had regular territories which they used for their winter activities.

Those territories were contiguous with the winter territories of other groups spending the

Independent First Nations Alliance 15 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ summer in Pikangikum and other communities with which the Pikangikum groups had family

and other ties.22

Disputes would have arisen within Pikangikum in relation to economic activities, such

as hunting and trapping, marriage, land use and spiritual practice. Such disputes would have

been both within the winter parties and between the various winter parties. Disputes would

also have arisen between the Pikangikum groups and those attached to other communities

with whom they shared the land and with whom they were often related. It seems highly

unlikely that such a complex society would not have developed some formal dispute

resolution mechanisms. The elders clearly tell us that formal mechanisms did exist. Due to

restraints in time and funding, we have not attempted in this work, to research those

mechanisms in detail.

It is certain that rules and norms existed. Hallowell acknowledges a number of norms

which were enforced mostly relating to marriage, sexual conduct and respectful use of the

land and the animals. The uncertainty of the economy together with the fact that every

person had a vital role to perform in the social unit, meant that each individual was precious

to the group. Retribution and punishment were not important issues. Reconciliation and

healing were of greater concern. It is perhaps telling that these matters remain prime

concerns to elders and Chiefs today.

in Traditional Methods of Social Control amongst the First Nations of the Independent First Nations Alliance

Hallowell said of the Pikangikum First Nation when he visited in 1932:

Independent First Nations Alliance 16 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum Although it is true that aboriginal culture as a fully rounded and comprehensive scheme of life had disappeared, a continuity with the past was obvious, along with a persistence of attitudes, values, beliefs, and behavior which had their roots in an aboriginal sociocultural system.23

The interviews conducted by the Independent First Nations Alliance suggests that this

comment remains true today, sixty years later. These four communities are in the throes of

great changes imposed from without and are struggling to retain control over their future.

The past life, which is gone irrevocably, remains important. The values learned through

history are seen as relevant. The ways of living together seen as vital and capable of

translation into a modern form. And as at Pikangikum in 1932, the people see their past as

the only basis on which to build their future.

We start this section describing what the elders told us of the formal social control

mechanisms which, within living memory, existed in the communities. We are not suggesting

that the four communities had identical processes or governed their lives with the same set of

norms. It is beyond the scope of this paper to research or document the scope of

contemporary traditional justice in any of the four communities. Our purpose here is simply

to show the traditional processes which did exist, and to show that to some extent, the

traditions remain vital even though they are under attack.

The correspondences between the Pikangikum encountered by Hallowell and the four

First Nations are striking. Hallowell's research from the 1930s describes small communities

made up of more or less related persons living in a clan system maintaining order through

efforts of the individual. The clan groups which were the basis of social life, moved with the

seasons from rather scattered and isolated winter groups to larger communities at the summer

gathering places. The elders of the First Nations of the Alliance, describe a similar social

order. They also reveal the existence of a complex social control system consisting of a

Independent First Nations Alliance 17 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ number of different mechanisms through which the communities reinforced community

norms.

i A Complex Social Control System

Big Trout Lake First Nation signed treaty in 1929. Two of the elders interviewed by

IFNA were alive at the time of the treaty and remember the event. They described a society

very much like that described by Hallowell. Big Trout Lake was one of the summer

gathering places. From Big Trout Lake, people fanned out to their winter hunting and

trapping territories in the surrounding lands. Many of the communities in the area

surrounding Big Trout Lake were once winter hunting and trapping territories for groups who

spent their summers together in Big Trout Lake. The present day communities such as

Bearskin Lake First Nation, Wunnumin Lake First Nation, Wapekeka First Nation, and many

others, were in the past closely allied with Big Trout Lake First Nation and signed treaty at

Big Trout Lake. Muskrat Dam First Nation, part of this study, is one of those communities.

Chief Samson Beardy, the spiritual founder of Muskrat Dam as a permanent community, was

one of the signatories of the treaty at Big Trout Lake in 1929.

Elders Jeremiah McKay and Mary Ann Anderson described how order was kept

amongst the Big Trout Lake peoples in the early days of contact. Social order was

maintained through the use of "Circles". In the summer community, the community leaders

met in these Circles to review what had happened in the winter groups and to maintain order

Independent First Nations Alliance 18 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ in the summer settlement. Circles were made up of representatives of the smaller winter

groups along with the leaders of the summer community and the spiritual leaders.

Jeremiah McKay explained:

When people talked we sat around in a Circle. The leaders of the community were there: now we call them Chief and Council. And also within these Circles was a spiritual leader, (ayemahe ogemah)24

In addition, each of the winter groups had one or more "designated keepers" whose role was

also to oversee the matters in the winter groups and report to the Circle upon the return to the

summer gathering place. There is no exact English term for these designated persons. The

terms used by Jeremiah McKay combine to express the role they played in the community.

He uses three terms: oganawengike, the keeper; odibaajimoog, the reporter; and,

onagachecheka, the person who watches. The most frequently used term is oganawengike.

These roles might be the responsibility of a number of different persons or they might be

combined as the responsibility of a single person.

Jeremiah McKay describes how they operated:

If anything went wrong in the little settlements in winter time, the odibaajimoog would be holding the meetings there. And his role was to keep things going well. If anything not too serious happened, he would keep the incident to himself rather than try to resolve it immediately. And he would not discuss what he was doing. When the group went back to Big Trout Lake in June, the Chief of the Band would meet with the oganawengike to discuss what had happened over the winter. The oganawengike would report to the Chief and that is how the Chief would find out what had happened in other groups. The Chief would start working on problems right away. They would call a Circle to discuss the causes. The Chief would bring the person who had been reported into the Circle and would say to him, "What do you say? Is it true that you did this thing?" The person who was being asked would usually reply, "Yes it is true". And at that time the Chief would usually start talking to him. After the Chief had finished talking to him, the others would follow. The spiritual leader would be the last to talk to the person. The process worked when it was applied.

Independent First Nations Alliance 19 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum What is described here is a very formal process for policing and adjudicating individual

behavior. The object is to impress upon the person being talked to the importance of right

behavior rather than the imposition of any sanctions. For the most part, the internalized

sanctions mentioned by Hallowell would have been sufficient to enforce appropriate behavior.

We shall see below, however, that at times sanctions were imposed.

The role of the "keepers" was not only to watch over wrongdoing within the

community. They were also required to report on sickness and any other matter which might

affect the well-being of the peoples. If any person were to fall sick, for example, the

designated person was required to report the matter to the Chief in his winter settlement, and

the Chief would decide what should be done. Often sick persons were brought back to Big

Trout Lake for treatment.

Use of this process appears to have been widespread. Mary McKay, another Big

Trout Lake elder who was born and raised in Winisk, a Cree community 320 kilometres

northeast of Big Trout Lake on the coast of Hudson's Bay, stated:

We had a designated peacekeeper just like these people [Jeremiah McKay and Mary Ann Anderson] are talking about. When something went wrong, it was dealt with immediately. The role of the elders and the committee or Circle was very powerful.

The elders at Muskrat Dam also remember order being maintained in this way in other

communities such as Bearskin Lake in the time of their youth.

Frank Beardy, until recently Chief of Muskrat Dam, as a youth knew four of those

who signed the treaty at Big Trout Lake: Chief Samson Beardy, Geordie Winnepetonga,

Jeremiah Sainnawap and Isaac Barkman. Frank Beardy grew up in Big Trout Lake and

Wunnumin Lake. In many ways he provides a bridge between the society the elders grew up

in and the modern world in which the youth are now growing. Frank Beardy remembers the

Independent First Nations Alliance 20 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ "peacekeepers" who are, no doubt, the oganawengike or "Keepers", mentioned by Jeremiah

McKay. He also recalls the Circle process and describes the following example from his

youth at Big Trout Lake where it was used to deal with an illegitimate pregnancy.

The rule in relation to illegitimate pregnancy, he comments, was that the parties, if

they were not married, would have to get married. In the incident he recalls, a Council

meeting was called to which everyone was invited. Those who wanted to participate sat

around in a Circle with the pregnant girl and the person suspected of being the father of the

baby inside the Circle. First the father of the girl made a presentation. The father of the boy

would then make a presentation in which usually he would agree with what the girl's father

had said. Frank Beardy notes:

As far as I know there was very seldom a lack of agreement by the boy's father that marriage would take place very, quickly before the baby was bom. This was the only honorable thing to do. And the boy would agree. I have never heard of an account before 1955 of the boy refusing to agree. If you got a girl into trouble, it was your responsibility to marry that girl and raise the child.

His recollections suggest that the process lasted into the 1950s in Big Trout Lake.

The keepers did not act only in support of the Circles. They also had a role in the

social control system where they acted alone. They were expected to play a role very much

like the police officer performs in white society today.

Beardy suggests that the spiritual beliefs of the people played a substantial role in

controlling inappropriate behavior in the community and maintaining community norms and

values. He comments:

Jeremiah Sainnawap, he used to tell me that before the 1900s and in the early 1900s, that the most respected people were the omamatawis, persons with certain powers. People who, for example, could communicate through shaking tents, or could heal others through herbal plants, roots, leaves and the bark of trees around them. They were the most respected persons and they used the powers that they had for the good of the community. You had to watch out for them and be respectful of them.

Independent First Nations Alliance 21 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum Such persons could also use their powers for good or bad purposes and were feared because

of that. As was noted above, the spiritual leaders were an essential part of the Circle process.

It would appear that at least some of the designated persons, the oganawengike,

odibaajimoog, and, onagachecheka, may have been persons who may have had some special

spiritual position.

As a youth, for example, Frank Beardy was taught that the designated peacekeepers

had "certain powers" and that he should respect and fear them. He recalls stealing potatoes

from someone's potato patch in Big Trout Lake as a boy and relates how this matter was

dealt with and how their exalted status enabled the peacekeepers to do their appointed tasks:

The garden owner ... would take it to the Chief and Council and they would instruct the peacekeeper to find out who the culprits are. The peacekeeper would just go up to one of the young persons and just for sheer fright you didn't dare lie because he would double any penalty you got. So people would just talk. They would say, "Yes, he did it" and the peacekeeper would just narrow it down. And that was how they used to maintain law and order.

This description shows what Hallowell calls "internalized sanctions" in operation. The person

confesses to wrongdoing because of inner desire, fear and spiritual reasons. Sanctions, even

though mentioned by Beardy, were not a major part of process. However, the spiritual beliefs

of the community members clearly assisted community leaders in -maintaining harmony in the

community.

It seems certain that the peacekeepers described by Beardy are in all likelihood a more

modern manifestation of the "keepers" described by the Big Trout Lake elders. They appear

to have been general throughout the communities. Frances Densmore, writing in 1929 of the

Ojibwa of northern Minnesota, notes that the Chiefs there were assisted by two head men

whom she describes as "protectors".25 The similarity of this term to oganawengike, which

Independent First Nations Alliance 22 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ can be translated as "to care for", is striking. It would also appear that these "keepers" are

the forerunners of the Councillors. Elder Stanley Wesley of the Lac Seul First Nation was a

councillor for 14 years when he was a young man in the 1930s and he speaks of the role of

the councillor as that of a peacekeeper, a policeman, and one who should go around the

community to identify those in need of help. Whitehead Moose of Pikangikum, who was a

councillor as a young man in 1937, referred to his role as that of peacekeeper. Indeed, the

majority of the elders spoke of the role of the Councillor as properly that of a peacekeeper.

Beardy also describes a direct role played by the Chiefs individually in social control

in their communities. In the early 1960s when he was 12, Frank Beardy moved with his

parents to Wunnumin Lake First Nation. It was a very traditional community in which very

few persons spoke English. Many residents of Wunnumin Lake had worked in the mines at

Pickle Crow, and Central Patricia and had become acquainted with alcohol and with making

homebrew. He relates this story:

I remember one time with John Bighead, who was then designate Councillor or Chief or whatever.26 ... John Bighead came over to a bunch of us that were playing in the playground outside the school. We were all about 12 or 13 years old. And he came to us and said that he wanted us to do something. He told us that it was part of his job to make sure that we have safe environment to play, work and hunt. And that more especially the younger people have the right to a safe environment and that it was his job to ensure that it remained that way. And he added that it also the role of the younger persons to stand up and help when something bad comes into the community. "So", he said, "I need you guys because there have been a number of homebrew parties the past few nights and I hear the story that there's already a couple of homebrew pails in the bush that are going to be opened up tonight." So he took ... 15 or 20 of us boys and lined us up on one side of the village and he said, "OK, walk in a straight line right through the bush." And sure enough, a half a mile or so in, we found these two pails of homebrew. And then he took them to the centre of the community and he called everyone around and talked about the evils of alcohol and then he dumped them on the ground right there in front of everybody. That's how a traditional leader would operate.

Independent First Nations Alliance 23 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum This story shows the Chief personally taking a very active role in the social control system of I his community.

Elder Whitehead Moose who is now 80 years old was a councillor at Poplar Hill when

he was 24 in 1937, shortly after Hallowell visited Pikangikum also remembers Chief and

Council playing a role in social control in the community. At that time, Poplar Hill was part

of the Pikangikum Band and shared Chief and Councillors with Pikangikum. He recalls

frequent open meetings in the community where the Chief talked to the people about the

proper way to live. These talks were not only held when things were going wrong and the

tone of the talk was, as he puts it, instructing the people to "be careful". He recalls:

The style [at the open community meetings] was not conversational. It was very powerful oratory and nobody refuted what was said. The leaders lectured on how to live a good life. They talked to the women on how to raise their children. And there were times when couples parted company. Chief and Council immediately brought the couple back together again to work out their problems. ... A long time ago, people listened. Values were taught in the community.

This confirms that the practice experienced by Frank Beardy as a child was one which had

been handed down from the past.

These comments perhaps give us some indication of the sort of "talking" which took

place at the Circles. The elders of Big Trout Lake did not elaborate on this matter.

Whitehead Moose suggests that the talking may have taken the form almost of a lecture.

Elder Kanina Beardy of Muskrat Dam described the tone as taking a caring attitude. Stanley

Wesley, an elder from Lac Seul, described one matter that he was involved in when as a

Councillor he acted as a peacekeeper, assisting the Chief.

One time a woman had left her home because her husband was abusing her. He

explained:

Independent First Nations Alliance 24 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum We asked her how the children would survive if the man had to go to work. You will have to go home, we told her. So the Chief and I accompanied her home and I told the man to look after his wife and not to try and kill her. I said to him, "I'm afraid that she will leave her children and if you don't hit her she will stay with you". And I warned him not to do that again because she will leave you. This is your fault not hers, so she stayed and he never did anything again.

This suggests that the talking included explanation of proper behavior, obligations to one's

kin and the community as well as warnings of other sanctions. At the time of this incident,

Lac Seul was already served by police from the nearby logging and service community of

Hudson and the threat of jail was commonly used by the peacekeepers in Lac Seul.

Taken together, it seems probable that the tone and content of the talking varied with

the circumstances and the incident being intervened in. It could vary from counselling

through advice, to a lecture or harangue to warnings and threats.

Whitehead Moose also illustrates the compassion which was at the heart of the social

control system. He comments:

The system must be somewhat lenient because the wrongdoers have certain problems which he must work through. You shouldn't make him angry or make him bitter. If that understanding or compassion isn't there, you might multiply a persons problems. ... There must be understanding. ... Because that person is a very weak person, not a strong person.

Like Beardy, Whitehead Moose also suggests that sanctions were at times used. Where a

person refused to listen to the advice and counsel of the leaders, treaty money might be

withheld. Mary McKay also suggests that at Winisk all help would be denied a person who

refused to listen to the community leaders.

Sanctions, when they were used, were used to convince people to listen to community

leaders and to live within the community norms and values. They were not used so much as

Independent First Nations Alliance 25 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ punishment and retribution. The purpose of the social control practices was to bring people

in difficulties back within the community, to heal their relationships as a community member.

The social control system in these remote communities was holistic with justice

playing only a small but important role which touched upon most of the other stabilizing

components of the community. There was no welfare. People shared and helped one

another. Sickness, old age and even lack of success in hunting, where it was no brought

about through laziness, resulted in intervention by community leaders. Where a person acted

inappropriately, pressure was brought on them to understand the need to follow community

norms and values. Sanctions operated to reinforce the healing approach traditional justice

brought to matters of social control.

Chiefs also played another, less formal, role in maintaining social order in their

communities. The Chief was very visible in the community, visiting and being seen. Most

of the elders told us this. Elder Stanley Wesley of Lac Seul who was a Councillor around

1920 told us, the Chief "kept an eye on the people" and he added that the people "wanted the

Chief there in the community to help them". Kanina Beardy in Muskrat Dam told us that the

Chief used to visit the people in the community:

I guess he was just like the ordinary person. He was just like me and you going to visit his friends. ... If a certain family were short of material for a tent or not enough wood or whatever, then he would voice his concern to his people. And he had a strong voice. That's how those without enough were helped out.

In this way the Chief kept himself aware of the state of his community and its members. He

was able to make certain that all the members of the community were healthy and had

enough food, clothing and other necessities to enable them to live as well as possible. He

was also able to make sure that the people were conducting themselves appropriately. Where

Independent First Nations Alliance 26 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum the need arose, the Chief would be able to take such steps as might be necessary to set things

right.

These descriptions taken together show the Chief at the centre of a complex social

control system made up of a number of elements. At the service of the community and its

leaders was a social control system which offered different instruments for different degrees

of need. The formal Circle process would work to deal with serious behavior and also to

publicize what the leaders thought was appropriate behavior. Peace and harmony were

maintained by a series of designated persons responsible for keeping the Chief informed of

matters within their clan based group. Meetings would be held where matters arising were

discussed and dealt with. It would appear that the needs of both victim and wrongdoer would

be dealt with in an atmosphere where caring and the healing of community relationships was

the prime motivator.

The Chief also played a large personal role in the community informing community

members of the what was considered to be right conduct and doing so at public meetings

attended by the whole community. They also had a formal role where they intervened in

conduct either alone or with the Councillor/peacekeeper. Peacekeepers too could act on their

own to maintain peace within the community.

In his informal role, the Chief also would be visible around the community checking

on people's needs and making sure that all were well cared for. This complex social control

system worked not only to inform about and reinforce right conduct but also to ensure that all

members were in good health and had a sufficient supply of necessities.

The informants also describe a predictable range of conduct in which intervention was

considered appropriate. Kanina Beardy states that there were three areas in which

Independent First Nations Alliance 27 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum intervention was undertaken: problems within the family, including illegitimate children, wife I assault, and separation; drinking and homebrew; and, thefts. All informants presented a

similar scheme. And it was not only disruptive behavior which led to intervention. In the

holistic social control system described by these elders, many other matters were seen to be

the concern of the whole community. Sickness and need were also felt appropriate conditions

for community action.

The social control system described by the elders clearly contains elements which

meet any definition of a justice system. Policing, adjudication and corrections are all found

and, taken together, present a picture which contradicts Hallowell on the matter of social

control in Anishinaabe communities. Certainly he was mistaken about the role of the Chief at

Pikangikum. Chiefs in that community as in all four of these communities, had both formal

and informal obligations in relation to social control. It is equally certain that the Circle

process was still operating in Big Trout Lake in the 1930s. And since Big Trout Lake and

Pikangikum were organized in a very similar fashion, it is likely that a similar process would

have been in operation in Pikangikum also. This suggests that Hallowell must have been

mistaken in suggesting that no formal social control mechanisms existed in Ojibwa society.

ii Justice in the Elders' Youth

It is difficult to speak with certainty with the limited survey presented here, to analyze

the state of justice in the 1930s in each or any of the four First Nations. All of the elders

spoke of how peaceful their communities were until very recently, probably after the 1950s.

Albert Peters of Pikangikum said:

Independent First Nations Alliance 28 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum There weren't any police for a long time. The reason is probably because there wasn't any trouble in the community. There was no need to put anyone in jail. No real reason because nobody broke any rules. Not like now.

He also told us that two persons from the community were appointed as police in the

community, one in 1947 and another in 1948, but, because there was nothing for them to do,

the practice lasted only a couple of years. From that time there were no police in

Pikangikum until special constables were appointed in the 1970s.

Big Trout Lake and Muskrat Dam, which was at that time a satellite community of

Big Trout Lake, clearly had all of the elements of the complex and sophisticated system

described above. We also know that it was already impacted in Big Trout Lake. Elder Mary

Ann Anderson told us that she remembers the Indian Agent taking over the Circle process

and treating it as part of his responsibilities.

None of the elders of Lac Seul mentioned the Circle process. Stanley Wesley gives

the impression that in the 1920s when he was a Councillor in Lac Seul, the community could

call on the services of the RCMP at any time. Nevertheless, it is clear that remnants of the

traditional practices remained in place at Lac Seul. Shemandy Kejick, told us:

In the past it was not like it is today. People got together to talk to the person who had beaten his wife. They would talk to him and they would tell him that he could go to jail for this. So this kind of thing never happened again and it did put a stop to the fighting. ... If somebody heard that there was fighting, somebody would report it and the police would come and get the people.

The community did have a designated peacekeeper/Councillor who was responsible for

policing on the reserve. Shemandy Kejick adds:

It was the Chief and the "designated policeman" who would go and talk to people. It was very difficult for the whiteman to enter the reserve and he was not allowed on to the reserve.

Independent First Nations Alliance 29 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^So while the Circle process may or may not have died out in Lac Seul by the 1930s,

traditional mechanisms were still the normal response to disorder in Lac Seul in the youth of

these elders. It would appear also from the testimony of the elders of Lac Seul, that the

community leaders threatened troublemakers with resort to the police and that in extreme

cases, the police would actually be called upon.

It should be remembered that this is the community with the longest period of contact.

The Pickle Lake mines were serviced through Lac Seul, the railway passed through the

traditional territory of the Band and logging was extensive in the region from an early date.

While the people did not gather closely together into the three present village communities

until the early 1960s, the degree of contact was more intense than with the other three

communities.

It is possible then that Lac Seul may not have used the Circle process in the 1920s

and 1930s. Even if the process was in use, the fact that the elders did not mention it clearly

as an element of the social control system suggests that its use may have been ending by

then. Certainly, Lac Seul had already accepted that the white police had an important role to

play in social control in their community.

Pikangikum is much more difficult to read. Much of what Whitehead Moose has to

say is consistent with the Circle process as described in Big Trout Lake and Muskrat Dam.

Clearly the role played by the Councillor was a very public one and the role of the Chief very

public too. He describes one incident:

[If a family broke apart] Chief and Council intervened immediately. We scolded the persons and told them to get back together. If anyone was responsible for an illegitimate birth, they had to bring it up. And if they didn't, their treaty money would go to the child and the person or persons would not be accepted back into the community until they accepted responsibility for the child. That way it was possible to ensure that the family got back together again.

Independent First Nations Alliance 30 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ As with Lac Seul, it is not clear from this description, whether Pikangikum used the Circle

process in the same manner as did Big Trout Lake and Muskrat Dam. At the very least, the

process described by Whitehead Moose shows Chief and Council utilising a process clearly

based on the traditional practice described by the Big Trout Lake elders. It should be

remembered councillors and peacekeepers were often the same people when these elders were

young.

Two interpretations are possible. First, it may be that the Circle process was in use at

Pikangikum in the 1920s and 1930s. Alternatively, it could be that the process had died out

and had been replaced by Chief and Council operating in a similar fashion. Clearly though,

Pikangikum still maintained control over its social control system. Equally clearly, the impact

of white society was minimal in 1937 when Whitehead Moose was a young man.

The picture presented here shows four communities still living very much in accord

with their traditions but in the early stages of the destruction of their indigenous social control

systems. As one observes the communities travelling from the south to the north, the impact

of contact lessens. We see Lac Seul already utilising the RCMP as part of their social control

system. At Pikangikum we observe them experimenting with appointing white-style police.

And in Big Trout Lake and Muskrat Dam, where the traditional practices remain powerful,

we see the Indian Agent using those practices to enforce the rules which serve his needs and

the needs of the Canadian government. In 1993, we can see how much progress the process

of colonization has made.

Independent First Nations Alliance 31 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ TV Social Control Today amongst the First Nations of the Independent First Nations ^P Alliance

The complex social control system described by the elders no longer functions Big

Trout Lake First Nation. In living memory, Big Trout Lake First Nation has gone from being

a peaceful community, self-governing in justice, to a troubled community forced into

increasing reliance on a justice system which was not designed for it, which functions poorly

and which undermines the traditional norms and values of the Big Trout Lake peoples.

Instead of the Circle process, Big Trout Lake First Nation is now served by the Euro-

Canadian justice system through the Ontario Provincial Courts and the Ontario Provincial

Police. The community is policed by the Northwest Patrol of the Ontario Provincial Police

out of Sioux Lookout supported by two full-time First Nations Constables living in the

community. The First Nations Constables are funded under a joint federal/provincial program

which allows First Nations some input into policing in their communities. First Nations

constables are part of the OPP and are empowered to enforce provincial and federal

legislation under the Police Act. The fact that First Nations constables are often reluctant to

enforce community by-laws, intensifies the destructive impact of the white justice system on

traditionally-based justice processes.

The Ontario Provincial Court flies in from Kenora and holds court in the community

on a regular basis. Figures are not readily available but anecdotal information indicates a

rising crime rate with alcohol an element in the majority of the offences committed.27 Up to

the present, the community has not permitted the Native Justice of the Peace program to

operate in the community.

Independent First Nations Alliance 32 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum Some community social control practices endure. Chief and Councillors still play an

active, though much more limited, role in social control in the community. The community

conducts its own patrols in an attempt to prevent alcohol and drugs from entering the

community. Persons entering the community from the airport, the winter road, or overland

can be searched for alcohol or drugs by certain community members. This process has been

attacked recently although it was upheld in the Ontario Provincial Courts.28 Other court

challenges of similar community practices in other Northwestern Ontario First Nations are

ongoing.

Elders and leaders within the community are all too aware of the tragedy that they are

living through. They recognize that their community is under threat from increasing

encroachment from outside. The full meaning of the very recent loss of control over social

control in the community is very clearly understood. Chief Stanley Sainnawap spoke of the

process of change being forced upon the community in this way:

What we are talking about is how the government has destroyed our lives, that's how it appears to me. First Nations peoples got their power from their spirituality. We got our power from the land, not from paper. Today we are seeing and experiencing the damage that the government and Indian Affairs has done and even now, they do not own up to the damage they have done to us. ... How can we deal with these concerns? How can we deal with these problems ourselves without interference from the government and Indian Affairs? ... We have to find a way based on the knowledge of our people and of our community.

They know very clearly in Big Trout Lake First Nation that what is happening originates

outside the community and they can see, day by day, the increasingly damaging effects of

contact. They are living today through the phase of colonization which may be the most

damaging to community life: the destruction of the indigenous social order and its

replacement by a justice system based on values which are foreign to the Big Trout Lake

Independent First Nations Alliance 33 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ First Nation and which are destructive of many of the essential values which underlie the

culture.

In the 60 years since Hallowell visited Pikangikum, again within living memory,

Pikangikum too has gone from being a peaceful community following its traditions in

comparative isolation, to a community in stress, surrounded by development, threatened by

logging and facing a crime rate rising, seemingly out of control. The presence of the white

justice system is much greater in Pikangikum.

Like Big Trout Lake, Pikangikum is served by the Ontario Courts and the Northwest

Patrol Unit of the OPP assisted by First Nations constables. In addition, the Ontario Native

Justice of the Peace Court visits the community on a regular basis. Nishnawbe-Aski Legal

Services Corporation also has a community legal worker in Pikangikum to help members with

legal matters. Nishnawbe-Aski Legal Services Corporation is funded by the federal and

provincial governments together with the Ontario Legal Aid Plan, has a Board of Directors

made up of representatives of Nishnawbe-Aski Nation and provides legal aid services to

community members.

The Ontario Courts from Kenora visit the community approximately every two

months. In this community of less than a thousand persons there are often close to two

hundred charges to be heard at any hearing. And again, alcohol is a factor in the large

majority of the charges.29

For the most part, community social control is a thing of the past in Pikangikum and

what little remains is under attack. As in Big Trout Lake, Chief and Council and community

members conduct patrols in an attempt to prevent the entry alcohol into the community. Last

Christmas, after having confiscated alcohol from a community member attempting to bring

Independent First Nations Alliance 34 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^liquor illegally into the community, the then Chief Peter Quill was threatened with arrest by

the OPP after the owner of the alcohol complained to the police that his liquor had been

taken by Chief and Council.

Not only are community practices directly threatened in Pikangikum, they are also

being heavily impacted by resource development. A road from the mining community of Red

Lake, makes the lake on which Pikangikum is situated accessible by road. Logging is

underway within a few kilometres of the community and will soon surround it destroying

hunting and trapping for many years to come. The threat to Pikangikum can be seen and felt

travelling into the community. The impact is more terrible yet because not only are wildlife

and their habitat , but also because the logging is carried out in a way which is completely at

odds with First Nations values. Logging, consequently, has the power to undermine all

aspects of community life.

Elder Whitehead Moose in his discussion of justice matters insisted on talking about

logging:

I want to talk about conservation because forestry will ruin our life. It is almost here, between here and Red Lake. ... When we see these extractors come and what they do to the land, its no good. Animals cannot live there afterwards. We lose moose, rabbits everything. And that affects people too.

Elder Albert Peters also spoke of the ways in which colonization is affecting the people of his

community:

Its the suicides, the people taking their own lives. That's the impact of white people on our lives. And I think the whiteman is beginning to see the impact he has had on our lives and on our communities in the north. ... It is only now that we see the pain that people bear because of the changes in our communities. It is every day now that people are experiencing the pain, the family breakdown, children being neglected, and all these things. ... All I can say is that these things, family breakdown etc, it is not really in order. It is not what the Great Spirit wanted.

Independent First Nations Alliance 35 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ The terrible effects of colonization at its most intense are evident in Pikangikum. In the short

space of sixty years, colonization has done its best to bring this community to its knees.

In Lac Seul the process of colonization has progressed much further. Resource

development, flooding for hydro-electric power dams, ready access to the towns, all these

have taken their toll. The three communities which make up Lac Seul First Nation are

policed by the Sioux Lookout detachment of the OPP with First Nations constables in

support. There is no court in the Lac Seul: offenders attend court in Sioux Lookout. No

figures are available on offences at Lac Seul because offenders are processed together with

those in Sioux Lookout and it is too difficult and costly to separate the numbers.

Social disorder in Lac Seul compares with conditions found in the other Alliance

communities. Crime rates are rising with alcohol a factor in most incidents. Assaults,

vandalism, theft are common. Problems with the youth are acute. To all intents and

purposes, social control in Lac Seul has been wrested away from the Band and it is now

completely drawn within the white justice system. And the white justice system is failing the

community.

At the other end of the scale, Muskrat Dam First Nation offers a glimmer of hope.

While it suffers from the same problems which are found elsewhere, the local social control

system has not yet been completely displaced. Muskrat Dam is at once a very traditional

community and a very modern one. Many community members have attended higher

education and embrace many aspects of the modern world. At the same time they retain a

great deal of respect for their traditions.

The community is the site of a family oriented alcohol treatment centre which uses

both white and traditional treatment practices. There are log houses and modern houses. The

Independent First Nations Alliance 36 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ pattern noted by Hallowell at Pikangikum which had families or dans grouping their homes

together is still followed in Muskrat Dam. The language is very strong and social control is

very much a community matter. The traditions remain alive in Muskrat Dam, adjusted and

attuned to the fit with the contemporary world.

The Ontario Provincial Police are generally not welcomed in the community. There

are no First Nations constables. The Ontario Courts have been invited in only once, in 1992,

to deal with events in the community. Even the OPP have been invited in to arrest serious

troublemakers only three times in the history of the community.30 In Muskrat Dam, local

problems are dealt with through processes based on the elements of the system the elders

spoke of at Big Trout Lake.

Following their traditional practices, Muskrat Dam appoints ordinary community

members to be peacemakers. These peacemakers do many of the tasks which would

otherwise be done by police. Elder Kanina Beardy of Muskrat Dam explains:

The way it operates today is that certain people in the community are assigned by the leadership of the community, and their sole task is to look after intervention. In Muskrat Dam we call these people peacekeepers. If there is trouble in the community they have to go and intervene. Then they bring the problem to the attention of the leadership, Chief, Council, and the elders, and then they take over.

The persons are then dealt with in the community through a modern version of their

traditional practices. Kanina Beardy describes this process:

The leadership intervene to talk with the individual with concern and in a manner that will help the person to understand that the only reason that they are intervening is because they care for the person and to help them. They talk not in a harsh manner but in a caring manner so that the person will recognize his or her problems and troubles.

Described this way, the process remains vague and unclear. The actual process used appears

to vary according to the nature of the matters at hand.

Independent First Nations Alliance 37 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum It may be the case that the Chief will deal with any particular problem alone following

the advice of his elders and Council. At other times with more serious problems, more

persons will become involved and the process may be more formal. Finally, the outside

justice system may be called on to deal with persons who have not responded to the

community initiatives. In Muskrat Dam it is still possible to find a complex set of

mechanisms similar to those described by the elders of Big Trout Lake.

Frank Beardy tells of one of the incidents which the community dealt with through

traditional practices while he was Chief:

One time there was a young couple. A woman married a man from another community and they came back to Muskrat Dam to live. The woman was accusing her husband of beating her up all the time and making her life miserable. ... An elder came up to me and said to me, "You have to do something about this because it is a part of the job of Chief and Council to deal with it. So I went to my elders and I asked how we go about dealing with things like this. And they said, "Well, it's simple, just bring them in and we'll talk with them." ... So I said, "Sure. OK. Let the Council of Elders meet here at a certain time and I'll get the two of them in." So the Council of Elders met and they sat around a large table and the two of them came in and they sat along one side of the table. And then one of the elders said, "We're doing it wrong. We are supposed to be in a circle and these two are meant to be in the middle of the circle." But I knew that that young man was really shaking and I said, "No, maybe we'll do it this way just one time." ... And then we started. I made an opening statement talking about what had been reported to me that the young man was mistreating his wife, and how that wasn't allowed in our society. That in Muskrat Dam it was not right to mistreat anybody. And then it went through all the elders. They weren't so much telling them off, but they were teaching the two of them how they could function together as a team. At the end, two of the elders had brought gifts with them and they gave the two young persons those gifts. And those two are still together. We've had no major problems with them since that time. And a few months ago, the young man came back to me and he said, "Yes, we still have our problems, but we think about what was said to us and as long as we practice what was told to us that day, we're alright." The emphasis that was given to them at that time by the elders was this: If you want your life to improve, you have to listen to the advice of your elders. If you do not listen to the advice of your elders, then your life will not improve for the better.

Independent First Nations Alliance 38 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ Some years have passed since that couple appeared before the Council of Elders and they

continue to live together working out their problems following the advice of the elders.

As with all traditions, changes have been made in how the process functions. In the

example above, for instance, the persons being talked to are not placed in the centre of the

circle. In another example related by Frank Beardy, the community radio is used to talk to an

offender who had stolen a large sum of money from a home in the community:

At one time we were in Sandy Lake and a message came that some money had been stolen from a private home. The amount was about ten to twelve thousand dollars. I flew home right away. I asked my people, "Do we want to call the outside agencies right away or do we want to settle this internally?" And everybody said, "Let's settle this internally. Find out who it was and set things right." So we closed the community. We did not allow anyone to come in or to go out. We quarantined the whole community! I went and talked with the elders and they told me how this would have been dealt with a long time ago. In the past, a community meeting would have been held but it is difficult to get everyone to meetings today, so I used the community radio. I talked to that person, whoever he was, one to one, on the radio for two hours. I told him what he was doing to the community and what he was doing to the family from whom he took the money. I guess it could be called working on the person's conscience, bringing up the teachings that had been passed down for many generations. Trying to make him realise what he was doing. Two nights later, I found the money on the front seat of my truck with his letter.

In this incident we see the Chief acting alone with the guidance of community elders. And

we also see traditional practices being successfully adapting to modern technology.

But even in Muskrat Dam, the picture is not completely hopeful. Traditional practices

are under threat and are beginning to break down. The healing aspect of the circle process is

being lost. Beardy continues the story above:

After the money was returned, I went back on the radio and I thanked him for bringing the money back and I told him that that was only part of the process. The healing part was needed now. And I told him that one of the first things that he had to do now was to admit publicly that he had done it and that he was sorry for having done it.

Independent First Nations Alliance 39 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum That didn't happen. That was where it stopped. ... A lot of people kind of suspected who it was, but, .... That happens in a lot of Muskrat Dam cases now. The process only goes half-way and then the healing doesn't take place. People make restitution, they pay back what they took or they do something to make up, but it often doesn't go beyond that. And that's where I think that a lot of it is missing and where a whole lot of research needs to be done. How do you continue after you have made restitution? How do you continue the healing journey?

It is clear that Beardy is well aware that community-based social control is under a severe

threat and that if nothing is done to meet the challenge, community social control may

become a thing of the past.

Elder Kanina Beardy also sees that the process is beginning to weaken. She notes that

in recent years there has been a tendency in the community to simply ignore some problems.

Whereas in the past, behavior which did not meet community standards attracted the attention

of the peacekeepers and the leadership of the community, today that is less true. She

comments:

Sometimes now when a person is suspected of doing something bad, there is a tendency on the part of the people to just stay away from the person. ... But where it is a serious matter, the people have a tendency to help the individual.

Theft of cut wood left in the bush for a while is offered as an example of the type of petty

problems which tend not to get dealt with. The fact that many minor problems such as this

and loss of tools or gasoline are not dealt with also concerns former Chief Frank Beardy.

While traditional social control practices are still in use, it is clear that they are under

threat and it seems likely, absent some special assistance, that they will not last long. The

writing is on the wall. In 1992, the court was called in for the first time. This year, the

police have already been called in twice and another court date seems imminent. Muskrat

Dam, unless support is forthcoming, seems destined to follow Big Trout Lake, Pikangikum

and Lac Seul in the loss of indigenous social control. The fate is not a hopeful one. The

Independent First Nations Alliance 40 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ inability of the white justice system to effectively serve First Nations communities is well

known31 and it seems that the people of Muskrat Dam may well have to take a back seat in

maintaining order within their own community.

There is a pattern demonstrated among the First Nations of the Independent First

Nations Alliance. Contact has been longest and most intense with the Lac Seul First Nation.

They now exercise almost no control in justice. Pikangikum, which is the community second

in the impact of white society and the most heavily impacted at this time, with its rising

crime rate and ever increasing involvement with all aspects of the white justice system, seems

well on the road to having to rely exclusively on the white justice system. Big Trout Lake,

less heavily impacted by white society, has not been forced as far down the road to

assimilation. Its traditional practices are now in the process of being pushed aside by the

white justice system, and the community is very much aware of and concerned about these

developments. Muskrat Dam, only very recently impacted by white justice, still maintains a

fairly complete traditional system which is struggling to adjust to the impact of southern

society. The threat of the white system looms very large though and the community and its

leaders fear that it may not be possible to halt the march of that system into the community.

These four communities and their leaders all seek a justice system which will

effectively meet the needs. It is all too obvious that the system being imposed on them

cannot. A social control system, in order to be effective, must respond to the lives and the

culture of the people whose relationships it is called on to serve. Ideally, it reinforces the

community culture. It is not surprising that the system used in Canada, imported out of

industrial Britain and adapted to suit the needs of the colonial administration, fails in First

Nations communities, particularly in those as remote from the population centres as are those

Independent First Nations Alliance 41 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ of the Alliance. What is more pertinent for the concerns addressed here, is to ask how is it

that an ineffective colonial justice system can replace the traditional systems which once

served the local communities so well. What are the destructive forces which are proving so

effective?

V Destructive Forces

The rate at which the social control systems of the First Nations have been displaced,

cannot fail to amaze the observer. Only Muskrat Dam would appear to have retained much

of the complex and effective social control system of the past and even there, its future seems

bleak. The forces which have brought about this change are many. Colonization is a slow

complex process.

Some might argue that the old ways have fallen away because they do not fit with

modem times. The arrival of state education, the wage economy and such modern media as

television, it could be argued, make it impossible and unnecessary for traditional practices to

survive. This argument, however, ignores the fact that the process which has replaced the

traditional practices is ineffective. It also ignores the fact that the white justice system has

been thrust upon the First Nations. The Anglo-Canadian justice system was not chosen by

the First Nations in the way that the trapping economy associated with the development of the

fur trade was taken up. Schools and education too, were sought by First Nations at treaty

because they realised that education would become essential in the changing world brought

Independent First Nations Alliance 42 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ about by the arrival in their lands of the Europeans. At the negotiations which preceded the

treaty, the First Nations were careful to protect their right to continue to live as they had

before. They were simply not interested in abandoning their culture, their Indianness. They

were interested in retaining control of the rules governing how they were to live together.

It is not easy to resist the pressures brought about by colonization. Frank Beardy has

talked about the experience describing it as a "tide that is threatening to overwhelm the

community".32 He has grappled with this problem:

When you think about what happened in the 1920s, the 30s, 40s, and you start putting it together - you now, why we are the way we are now - after a while it will start making sense.

It is not a single impetus that can be resisted. It is a series of pressures and influences, some

certainly imposed and some perhaps not. As contact with outside increases, the pressures

which destroy the old ways mount.

To some, the tide seems impossible to resist. Many elders feel that there is no way to

resist the multitude of forces which threaten the communities. But that does not mean that

adoption of the dominant culture is inevitable. Many peoples in Canada have resisted

assimilation into a single monolithic culture. Where circumstances permit, it is possible to

adopt only certain aspects of another culture whilst retaining some elements of one's former

culture. Canada's existence as a multicultural nation accepts that point.

All four of the Alliance First Nations express a strong desire to retain and revive their

traditions and their traditional justice practices. And because the loss of fully developed and

complex traditional justice systems is so recent in these communities, it is still possible to

identify many of the influences through which the process of colonization replaced and is

presently destroying First Nations culture and social control mechanisms.

Independent First Nations Alliance 43 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum Elder Mary Ann Anderson was a oganawengike when she was a young woman and

she remembers one of the influences which helped to push the traditional Circle practice

aside:

I did what Jeremiah described at the time that white people were beginning to come around a lot. Many offences were looked after by the Indian Agent by then. The Indian Agent oversaw the process and was accompanied by an RCMP officer. The Indian Agent oversaw the meeting. When I was a oganawengike, I would be called by the Indian Agent and he would tell me to get up and speak and report, to relay the facts of the incident. It was just like they do in the court today. Just like what the lawyers and the Crown does in court today. That's the way the Indian Agent saw it. For him the process of maintaining the peace was controlled by the Indians up until the time that the Indian Agent became involved.

The taking over of the Circle process and converting it into a court where judgment and

punishment took precedence over compassion and healing, is one of the destructive

influences.

In Lac Seul, they remember this as the only the court they had. Shemandy Kejick

recalled that in his youth court used to be held in the community on treaty days:

It was the whiteman that held the court. It was the Indian Affairs Agent. He was not from here or from Sioux Lookout either. There was no Indian Affairs office here.

He also recalls that on occasion some persons would be taken out of the community after the

court session. The fact that the Lac Seul elders do not remember any community process

similar to that related by the Big Trout Lake elders, suggests that the Indian Affairs Agent's

court may have already replaced such processes in Lac Seul.

Alcohol is cited as a major destructive influence by all the informants. It is known

that alcohol plays a major role in social disorder in all four IFNA communities. Elder Albert

Peters of Pikangikum stated baldly, "There is only one troublemaker in our community:

Independent First Nations Alliance 44 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ alcohol." He equates easy access to alcohol with the beginning of the destruction of

community-based social control:

We didn't really start getting policed by the whiteman until the sale of liquor to First Nations was permitted. It was only then that we started to encounter more of the whiteman's laws. Until then there were no policeman. It was then that the trouble started: Our people started to be killed by alcohol, drowned, burned in house fires, ... the suicides.

Alcohol allowed people to ignore community values and spiritual beliefs. Once community

norms are no longer respected, it becomes increasingly difficult for community controls of

behavior to be effective. In turn, this makes it more likely that outside systems will be needed

to restore order.

Frank Beardy sees another more subtle role played by alcohol in the destruction of

community norms and values. His father was for many years an Indian Agent, one of the

few who were Anishinaabe. Frank Beardy sees a role which combines the destructive

influences of alcohol, the Church, the Indian Agent and the Hudson's Bay Company:

Alcohol was a strong influence. Alcohol was the root of disintegration ... . It destabilized out society. It is true that in many ways, alcohol is easy to police because when you take alcohol it makes you act funny. But what they used to do in the past when someone was caught drinking, depended upon their status in the community. There was this feeling that if the Hudson's Bay manager drank, or if the Minister drank, it was ok. And it was those people who used to drink. But when it spilled over into our people, depending on their status in the community, what they would do is pounce on him. ... But you see if my dad drank, who was a government servant, that didn't happen to him. And I know that he used to drink. ... In a sense when you look at this, these people who were the government representatives, of the Hudson's Bay representatives or the church representatives, they were all part of a foreign system that was undermining our people. They were undermining our society, the way we conducted ourselves and the way we governed ourselves. Because they were immune to our system of doing things, they brought about a further erosion of how we used to do things.

This sort of combination of very powerful influences, creating in effect a class system, no

doubt increased exponentially the detrimental effect they would have had individually.

Independent First Nations Alliance 45 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum The attempts by Ontario to impose their land use regime on the First Nations is also

referred to by the informants. Frank Beardy cites the encroachment of Lands and Forests

Conservation Officers into the Big Trout Lake area in the 1920s, as one of the reasons that

Chief Samson Beardy sought to make treaty with the whiteman. Whitehead Moose, we have

seen above, names the devastation caused by logging as a major cause of social disorder.

And for Whitehead Moose, it is not just the loss of hunting, fishing and trapping that is

destructive. More insidious to him by far is the effect the practices of the loggers has on the

young.

He tells a story from when he was a boy in which he was hunting with a bow and

arrows. He and a friend lost all their arrows stuck in the top of a tall tree trying to shoot a

partridge. Unable to get their arrows, they decided to cut the tree down. As they started to

cut the tree, an elder came by and saw what they were doing. Whitehead Moose continues:

He said. "Don't do that. Don't chop that tree down for no reason. You cannot do that even though I know that your arrows are up there." And he talked to us and he taught us that day that that tree was put on earth for a reason by the Creator. The reason I'm telling you this is because you only take from the land what you need. ... When we built log homes in Pikangikum we only took enough trees to build a home. ... Respect for the land is something we have always had. ... That's what the whiteman doesn't understand, Sure you get something for a purpose, but you've got to conserve something too. The Great Spirit gave us this land for us to live from.

Respect for all things is a cornerstone of Anishinaabe teachings. When it seems possible to

prosper without respect, as from the Anishinaabe point of view the loggers do, a very bad

example is set for the youth. And in turn, this threatens the Anishinaabe way of life.

The imposition of a foreign and destructive land regime is part of the imposition of

Canadian law on First Nations. And its imposition in matters relating to land use, stripped

the traditional system of one of its most important areas of jurisdiction. As has been

mentioned above, the relationship with the land was central to all aspects of Anishinaabe

Independent First Nations Alliance 46 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ beliefs. The whiteman's land regulation regimes have always failed to address the concerns

of the First Nations.

For Elder Stanley Wesley, the introduction of Canadian law to Lac Seul around 1920,

marks the beginning of problems in the communities. When asked what he thought of the

whiteman's laws he replied, "They are not good. Not from the Anishinaabe point of view

because the life styles are different." Albert Peters of Pikangikum agrees with that sentiment:

I've observed many things over a lengthy period of time. I have observed much of why the Indian has been such a burden to the whiteman in relation to policing. It is the whiteman and his laws that put a burden on Indian people. They don't make sense here in Pikangikum. It is these laws that have weakened our people and put our people in jail.

Even those who do not see the laws themselves as the problem, remain critical of the

whiteman's law.

In Lac Seul, elder Shemandy Kejick commented how the system failed to help people.

He told of one person taken from the community after one of the Indian Agent courts:

He was in Kenora when his jail term was up and they discharged him in Kenora. Back then, they never sent anyone back to the reserve after they finished their sentence and when this man got out, he was beaten up and killed and that's where they buried him. I'm not sure it might have been about thirty years ago. He had five children, he never returned from Kenora.

It is known that some offenders do not return to their communities after the completion of jail

terms. Some suggest that this is because there is no healing, because the relationship between

the offender and the community has not been healed. One informant, who had been through

a traditional process for offences in the past has said that when he thought that he might be

going out to court, he had decided that he could not return to the community. In the event,

the matter was dealt with through a community process and since that time the person has

served as a Councillor.

Independent First Nations Alliance 47 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum In Muskrat Dam, elder Kanina Beardy told us that she had observed the response of

persons to the white justice system. She said:

We do have the OPP come here at times to get involved with some of the problems within our community and I think that it interferes with what we do ourselves. People tend to rebel against the white system. ... It creates bad feelings. ... After intervention takes place, it leaves people with an anger, they have bad feelings about the intervention. They don't quite agree with the way it is done. ... [TJhere's no healing process.

Lack of healing, indeed what appears to be a lack of any real action are frequently cited by

the elders as problems with the white system.

Ultimately, the white justice system remains a mystery to the elders and to the rest of

the communities. Too often it appears to the elders that the white justice system does nothing

when it intervenes. Obviously a social control system which appears to do nothing would be

unlikely to be very effective in dealing with errant behavior. Shemandy Kejick, for example,

complained:

When a serious crime is committed here on the reserve and the person is taken [to court] off the reserve, they are back the same day. I don't understand why this is happening yet. They take the person away to court and yet he's back the same day. And then the person gets into worse trouble.

For Albert Peters, this indicates the major failing of the white justice system. He states:

Guy goes to court. He gets off! So what? There is nothing said to him of his wrongdoing. There's no healing in the white system. That's all I know.

Healing is a first concern with the elders.

With a social control system based on healing, peacekeepers can have much broader

powers than is possible with an adversarial system. Intervention can take place earlier and

with few of the safeguards necessary in an adversarial system. Consequently, restrictions on

the powers of the police and other actors in the justice system are also widely criticized by

the elders because they make early intervention impossible.

Independent First Nations Alliance 48 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum The traditional system, it will be remembered, was a holistic one interested in all

aspects of community life: disorder, health, and the provision of necessities. In face to face

communities, all aspects of one's behavior were matters of common knowledge. Where a

person was experiencing difficulties, whether through criminal or quasi-criminal behavior of

another, or through sickness, or through lack of the necessaries of life, it was almost

impossible for the facts to remain unknown. The social control system was geared to

discover such situations early and it was always ready to intervene to help the person through

their times of trouble.

It should always be kept in mind that the restrictions placed on actors in the white

justice system are there largely because it pits the power and resources of the state against the

individual, with rehabilitation through punishment as its aim. Traditional anishinaabe justice

which aims at healing, does not require all the restrictions of an adversarial system.

One of the major causes of the displacement of traditional justice mechanisms is the

changing role of the Chief and Councillors. In the past, as we have seen, the Chief was

active in policing and reinforcing community values and norms. In addition, we have seen

that the Councillors' role evolved out of the peacekeeper. Both of these positions carried

heavy obligations in relation to matters of social control. Stanley Wesley told us:

The Councillors should go around the community and if they see any problems they

should tell the Chief, "That person needs help".

Shemandy Kejick pointed out that in the past, "everyone knew what the Chief was doing and

it was good".

Today Chief and Councillors are often out of the community working on behalf of the

community. They are involved in negotiations with the governments, dealing with business

people, and working with regional organizations. Kanina Beardy pointed out:

Independent First Nations Alliance 49 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum The role of the Chief has changed. The responsibilities have changed and the Chief has to go out. ... If the Chief stayed in the community, we wouldn't know what is happening out there: what legislation is being passed and how they will impact the community. It is the role of the Chief to find out about the changes in the law and to voice the concerns of his people. To work for the concerns of the individual community and for the whole area.

Obviously with Chief and Councillors out of the community more frequently, and with their

time more and more taken up with the bureaucratic requirements of modern government, they

have little time to carry out their traditional role in maintaining peace and order. In a sense

the government has taken the traditional peacekeepers out of the community by thrusting

them into a new role and paying them to perform that new role. However, while they fund

Chief and Council to perform their new roles, they do not fund personnel to fill the roles they

have been forced to give up. Instead, the government funds its own, ineffective justice

system to serve the communities.

Police, courts, Crown prosecutors, defence lawyers, all are funded to replace

traditional mechanisms. Since 1989 in Nishnawbe-Aski Nation,33 the federal and provincial

authorities have funded Nishnawbe Legal Services Corporation to deliver the services funded

through the Ontario Legal Aid Plan. This native-run organization is seen by many of the

leaders of these four communities as one more manifestation of colonization in that it furthers

the disintegration of traditional community practices by taking a global approach to justice

and by increasing the acceptance of the white justice system in the communities.

Many other causes were cited which should be mentioned more briefly. Even

though all the informants were believers and regular churchgoers, there was some criticism

made of the role of the Church in the destruction of social control in the communities. Frank

Beardy pointed out that the church was not always gentle in the way that it dealt with the

First Nations. When polygamy was ended by the church, he noted as an example, the people

Independent First Nations Alliance 50 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ were told to live with only one woman or risk eternal damnation. As a consequence, some of

the wives who were cast out of their homes, were unable to support themselves and died.

This he felt was destructive of the communal ethic on which community life was based.

The Church's role in the residential school system is another point raised. Chief

Stanley Sainnawap of Big Trout Lake commented:

The church ran the schools in the past and we now know through the media of some of the wrongdoings that happened to our young there. ... If the Church were to come to us and offer certain thing to Indian peoples, we should not accept their offer without question. We know how destructive the residential schools were. There are some things which must be made right. ... The Church has to be an equal or leading partner in sitting down and settling some of these things.

Residential schools have had many destructive influences. There has been physical, mental

and sexual abuse.

Perhaps one of the most destructive aspects of the residential school system has been

the taking out of the community of many generations of children thus making it veiy difficult

if not impossible for the traditions to be passed on. Residential schools have been destructive

of the language through which many of the essential aspects of the culture were passed on.

In many communities, the language has not survived the effects of residential schools.

Even since residential schools have been closed, the majority of teachers in the new

schools are non-aboriginal and non-speakers of the indigenous languages. Consequently, the

negative effects on the language and on transmission of the culture have continued.

A massive generation gap appears to have been created in these communities by the

residential school experience. At the same time as many of the young lost their contact with

Anishinaabe culture, they picked up many aspects of the now dominant culture. Returning to

their communities too old to receive the teachings from the elders in the traditional way, the

two generations, it sometimes seems, have lost the ability to speak with each other.

Independent First Nations Alliance 51 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum Elder Kanina Beardy of Muskrat Dam expressed her concerns that she may not be

able to pass on the traditions to the youth. Her parents had passed on to her their knowledge

and understanding of the traditions and of the spirituality and she herself, fears that she has

been unable to pass those traditions on as effectively as her parents might have hoped:

I have talked with the other elders about how things went in the past and the way it is now. And when we look into the future at the way things will be ten years from now, we feel that changes will occur. Times will get more difficult. ... And we wonder if it will be possible to keep the traditions that our parents taught us.

One senses a the gulf that colonization has created. Even so, she remains optimistic. When

asked what she hopes for from the future, Kanina Beardy said:

I hope that they will be guided by Manitou. That future generations will still have faith and will be able to place their trust in the Creator.

The imposition of the money economy on First Nations has been destructive in many

ways. The provision of welfare is seen as part of this problem. Stanley Wesley points out

how, in the past, people used to share and do things for one another. He told us:

Long ago people loved each other and helped one another, listened to each other and visited. Children were taught values and now today nobody does this. ... Long ago people helped each other and now today nobody does this. When somebody gives you food, they charge for it. Long ago, they never used to do that.

Other elders spoke of this.

The imposition of the money economy coupled with the pervasive and withering

influence of Indian Affairs has been particularly destructive and continues to be. We have

seen above that Chief Stanley Sainnawap believes that Indian Affairs has "destroyed" First

Nations. He also believes that the destruction is ongoing:

If we keep looking at the policies of Indian Affairs and allowing them to apply, we are reinforcing what the whiteman wants. That's what it looks like to me. I cannot just stand here and accept these things from above just because they come with money attached. ... Indian Affairs must be made accountable for what they have done in the past and they must stop. They should have no more power over us, no more telling

Independent First Nations Alliance 52 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum people what to do. And they should not be allowed to just walk away from what they have done without providing assistance to us so that we can fix up what they have done.

The policies impressed upon the First Nations by Indian Affairs and other government

departments remain destructive.

Both levels of government have urged the First Nations to create agencies of

governance which correspond with the institutions of Canadian governance: child and family

service agencies, planning boards to regulate land use, police boards and First Nations

constables, legal aid services, tribal councils, job training agencies. The list seems endless.

All these come with money attached and without them, little or no money is forthcoming with

which to provide similar services. This often makes impossible the delivery of many services

in a manner consistent with the culture.

Chief Sainnawap, speaking of Tikinagan, the child and family service agency

administered under provincial law through a corporation governed by a Board of Directors

made up in part of Nishnawbe-Aski Nation members, comments:

Here is a good example of government policy that has been imposed upon us and which has helped to break down community autonomy. It was an initiative of Nishnawbe-Aski Nation which was approved globally. But the needs are local. Therefore it breaks down the community. Today's approach is fragmented. ... I hope that we can bring back some of that fragmented authority to the communities.

Global approaches to governance are not customary with the First Nations. The First Nations

vary too much from one to another for global approaches to be anything but destructive.

Even the method of appointing directors to such corporations as Tikinagan and the

Nishnawbe-Aski Legal Services Corporation is seen as inappropriate. Rather than being

governed by appointees of the Chiefs, the boards of these corporations are appointed through

the tribal councils. Tribal councils, a creation of the Department of Indian Affairs, are

Independent First Nations Alliance 53 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ criticized because they take the power away from the Chiefs where it should reside and thus

erode the traditional structure of the First Nations. Clearly the practice of appointing

directors increases the powers of the tribal councils and further erodes traditional First

Nations governance structures.

These are the major causes of the displacement of traditional justice in the eyes of the

leaders and elders of these four communities. In many ways it is a bewildering array of

direct and indirect forces and it is not surprising that many feel that it is impossible to resist

the tide of influences from the south. But these leaders know that justice is central to the

way a community functions, the way a people lives together. The imposition of the white

justice system on the communities would have a tremendous effect on all other aspects of

community life. And the change would take them away from their traditions, their history

and their culture.

It should not be thought that the leaders wish to turn back the clock. None seek to do

that. These four communities recognize that they must adapt to today's world and wish to do

so. What they do want though, is to be allowed to adapt on their own terms in accord with

the tenets of their own culture, not on terms imposed by the Department of Indian Affairs and

the federal and provincial governments acting in accord with a foreign culture. And they

believe that their communities will be healthier if social relations within them are regulated

by a justice system which comes out of the same roots as do the people.

Social control mechanisms play an important role in the health of a community and it

is axiomatic that any change in social conditions results in changes in social control

mechanisms, the chiefs and the elders know that. And they know too that social conditions

have changed are still changing in the four First Nations of the Alliance. But the leaders feel

Independent First Nations Alliance 54 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ in the most powerful way that they are being excluded from playing a role in helping their

communities adjust to changes. Traditional justice has an important role in making those

changes. In these pages they have identified some specific causes which they feel have been

particularly damaging to their traditional justice practices.

Much damage has been effected indirectly by affecting the values which hold the

communities together. When commonly held values are undermined, social cohesion in the

community is weakened. When social cohesion is weakened, the path is made more easy for

the imposition of foreign institutions.

Alcohol is seen as the most destructive force because it has the power to affect every

aspect of community life. Alcohol lowers inhibitions and leads to lack of respect for the

values which normally govern one's conduct. Respect, it should be remembered is central to

the First Nations culture. When the community leaders, the spiritual leaders and the elders

are not respected, and when the values they hold are not respected, the community starts to

disintegrate. When one remembers that these same persons are the lead players in the

traditional justice system, one can see how the problem mushrooms.

A second effect of alcohol is the creation of class structures in the First Nations.

Frank Beardy told us how two classes were created: The class of those who could drink

alcohol with impunity, and the class of those who could not. This inevitably further weakens

community cohesion.

Education was singled out as the next most important element in the destruction of

community social control. Traditionally education was undertaken in the home and in the

community. With the children taken into residential schools it became impossible to pass on

many of the core values and teachings during youth. In addition the students learned new

Independent First Nations Alliance 55 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ values in residential schools. Since it is difficult to pass on many traditions once the youth

have grown and taken the role of adults in the community, the passing of much traditional

wisdom becomes blocked.

Loss of language also occurs in the white education system. Social control systems,

both White and First Nations, have a specialized lexicon. If the subtleties of that lexicon are

not transmitted, again it becomes more likely that traditional justice practices will atrophy.

Informal education is also affected. Many values are passed on by example.

Whitehead Moose told us how respect for nature is being destroyed by extraction practices of

the logging industry. That the loggers can prosper while acting without respect, further

makes it difficult to pass on central values.

Finally, the elders noted that the imposition of the money economy has been

detrimental to traditional justice by weakening the practice of sharing within the community.

Communal values are fundamental to the traditional justice practices. The obligations each

member has to oneself, to others and to the community are central to the functioning of

traditional social control mechanisms.

Direct influences are easier for the outside person to see. The Big Trout elders

explained how the traditional practice was taken over by white society. The Indian Agent

used the Circle process for his ends. Community leaders and peacekeepers were transformed

by the Indian Act into Chief and Council. Police were introduced to assist the Indian Agent

and the Hudson's Bay Company. This weakened the traditional practice by taking control

away from community leaders.

The introduction of alcohol brought with it the introduction of Canadian laws which

were new to the traditional system. The time of Chief and Council was increasingly taken up

Independent First Nations Alliance 56 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ with outside tasks relating with the Canadian state. No funding was forthcoming to replace

their role in maintaining social cohesion in the community or to assisting the traditional

systems in adjusting to changing conditions. This too weakened them.

The attempts at assimilation speeded the process. Land use regulation, game laws,

trapping regulation, and the entire legal structure of Canada was imposed on the First Nations.

The white justice system, imbued with a different set of values and developed for an entirely

different social structure, was introduced into the communities. The white justice system

helped destroy cohesion in the communities by removing the healing element from justice. It

worked slowly and incomprehensibly and it intervened when the offenders need had become

serious, too late to help. Intervention in the early stages of the path to becoming an offender

was made difficult by the protections granted to offenders under the Anglo-Canadian justice

system.

Finally Canada's fragmented approach to governance further undermined the holistic

community governance of the First Nations. The departmental approach separating

governance into separate issues such as health and welfare, justice, community and social

matters, education and more, is antithetical to First Nations governance. The resulting

creation of many global agencies delivering separate services also ignored the individual

needs of each First Nation and undermined the role of community leaders, Chief, Council,

spiritual leaders and elders.

Perhaps the most destructive forces have been the governments themselves. While

they have funded service delivery mechanisms which meet their own needs and the

governmental structure with which they are most familiar, and while the have funded the new

role of the community leaders which takes them away from their communities and their

Independent First Nations Alliance 57 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ traditional roles, the governments have offered no serious funding to communities to

modernize their traditional social control mechanisms. The funding of Nishnawbe-Aski Legal

Services Corporation to deliver legal aid services to the communities offers a telling

illustration of this point. It seems that government has only one view of what is appropriate

in today's world, only one idea of what is modem: their ways and their institutions. That is

a colonial stance.

All these influences, singly and in combination, work to defeat the initiatives of

the Chiefs to retain the distinctive cultures of their communities. Social control processes

play a crucial role in the retention of culture. They reinforce appropriate conduct and identify

inappropriate conduct. They influence the very way people interact.

Social relations have been greatly changed in recent times. Because social control

mechanisms must be responsive to the way the community functions, they have been greatly

impacted. With help they can adapt. As the governments increase the availability of their

justice system in the communities, the few traditional systems that have survived, if they are

not supported, are bound to fail. It is not the way the First Nations wanted it when they

signed treaty. And it is not what these First Nations want today.

VI Conclusion

Since the beginning of contact, First Nations rights have been recognized and

protected in law. And since the beginning of contact, those rights have been consistently

Independent First Nations Alliance 58 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum violated. Paradoxically today, with constitutional protection of the right to retain First

Nations culture, a very real danger exists that that culture will soon be irrevocably destroyed.

Areas of jurisdiction essential to the retention of a distinct culture are increasingly being

brought into institutions organized in accord with the dominant white culture of Canada:

education, health, family matters and justice.

We have seen that these four First Nations in Northwestern Ontario managed to enter

this century largely unaffected by colonization. We have shown how massive has been the

damage done since then, particularly in the last 60 years. The introduction of the white

justice system, the taking over of the education process, the imposition of the Euro-Canadian

money economy in the form of welfare and the jobs related to community infrastructure,

policing, bureaucratic government, airport services, governance agencies: all these combine to

devalue what were once essential roles such as the oganawengike, the peacekeepers. The

requirement that services be delivered in a manner consistent with the administrative structure

of white Canada condemns holistic traditional governance to an unsupported limbo where

decay and displacement seem inevitable.

This it must be admitted, may not prove a deliberate attempt to destroy First Nations

governmental structures. Up to this point, it is possible to argue that the effects are not

intentional.

The refusal to fund traditional practices when the traditional economy has been

destroyed and when traditional roles have been undermined, takes it from the inadvertent to

the advertent. The massive funding given to First Nations agencies modelled on Canadian

governance, those such as Tikinagan and Nishnawbe-Aski Legal Services Corporation,

Independent First Nations Alliance 59 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ coupled with the unlimited funding provided to the Canadian justice system clearly identifies

the displacement of traditional social control as intentional.

And when the governments pursue this course of action knowing that the replacement

they offer does not work in First Nations communities, the verdict could be must be even

more harsh. Cultural genocide may not be out of line.

We do not question that many of those who work in the field sincerely believe that the

Anglo-Canadian justice system is the best in the world. We do believe, however good it may

be, that it is not right for First Nations and it is undeniably clear that it simply does not work

in the communities.

The verdict is clear and inescapable. The Canadian and Ontario governments today

are playing an active role in the destruction of the traditional justice practices and their

replacement with the white justice system. That, is the reality of colonization. It is clear in

Canada today that the process of colonization is still underway and that the social control

systems of the First Nations, the glue that holds their communities together, is one of the

current targets.

It is not too late for the governments of Canada and Ontario to step back and help

these First Nations to save their traditional systems. It is not too late in Muskrat Dam to save

what is left, In Big Trout Lake, Lac Seul and Pikangikum, to revive and revitalise what is

now being lost.

There is a need for more community-controlled research to look at and analyse

traditional practices so as to assist them in adapting to a rapidly changing world. It is clear

that the rate of change together with the sheer magnitude of the influences and pressures

Independent First Nations Alliance 60 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ^^ being imposed on the communities have made it impossible for the traditional mechanisms to

continue to adapt without conscious effort.

The communities need to be able to observe in detail what is happening to our

traditional systems and how the damage comes about. They need to be able to research and

analyze the results so that we can make our systems work again for us. The leaders and

elders believe that that will benefit not only the communities. We believe that it would

benefit all Canadians. We believe that in our healing-oriented processes, we have something

that all persons can learn from. There is a need for funding and some breathing space in

which to work.

Frank Beardy of Muskrat Dam indicates the urgency of this need:

We cannot emphasize the importance of the work that we need to do. The most intense and damaging period of contact is very recent in Northwestern Ontario so there is still a great deal of knowledge and wisdom still with us in our elders. With each passing year we lose more of the knowledge that we need to pull us from the despair we now find ourselves in. The loss of our elders, of our language, the loss of the understanding of how our ancestors used to interact with the land and the spiritual ways which went with that attachment, all these are in danger of being lost. At the same time, the forces from the outside are growing and threatening to overwhelm us.

If the reality of colonization is the destruction of indigenous ways and their replacement with

the ways of the colonizer, that is happening to these communities today. And it is happening

with bewildering speed.

It is not too late for the governments of Ontario and Canada to stop playing their part

in this process. And we would ask the Commissioners to say this for us. We believe that the

time may be right. We believe that the governments are beginning to realise what they have

done to the First Nations. We believe that at last it may be that the whiteman amy be ready

to back and let us try to do things our way. We believe that he is beginning to see that his

ways, and particularly his justice practices, simply do not work for us.

Independent First Nations Alliance 61 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum Looking back over his life, elder Albert Peters of Pikangikum said this:

The whiteman is beginning to see the negative impact of his ways on us and our communities in the north. And I think that now he is beginning to feel guilty for the mess he has caused in the communities, to see the negative impact of his supposedly right ways. That's the way I feel and that's one of the biggest changes I have seen going from a child to a man.

Those are powerful words. And we hope that it may be true.

But we do not wish to finish looking backwards. Like elder Albert Peters, indeed like

all the elders, we would rather end on a note which looks forward with hope. Let us finish

with these, the closing words of Albert Peters, spoken on a beautiful summers day in his

home by Pikangikum Lake where his people have gathered for as long as is remembered:

Thank you for letting me talk about the past. I know something of what happened in the past. First Nations people looked after themselves in the past without anyone telling them what to do. Nobody told us what to do in the past. Now we are trying to get back what we have lost. We lost it because someone told us there was a better, a right way. Now we are trying to keep ourselves, to govern ourselves: We are trying to get back what we have lost and what we know is right.

Independent First Nations Alliance 62 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum 1. Royal Proclamation of 1763, R.S.C. 1985, Appendix E, No. 1.

2. See, A Morris, The Treaties of Canada with the Indians of Manitoba and the North- west Territories including the Negotiations on which they were based Facsimile reprint of the 1880 edition published in Toronto by Belfords, Clarke & Co., (Saskatoon: Fifth House Publishers, 1991)

3. Constitution Act, 1982, R.S.C. 1985, Appendix H, No. 45, Schedule B, ss. 25, 35.

4. Statement of Political Relationship, Thunder Bay, Ontario, August 6, 1991, between the Chiefs of Ontario and the Government of Ontario.

5. The Charlottetown Accord was defeated in a referendum, October 26, 1992.

6. See Appendix 4 for the full text of the remarks related to justice.

7. supra note 2, pp. 44-76; 320-329.

8. ibid., pp. 143-167; 342-350.

9. The James Bay Treaty: Treaty No. 9 (Ottawa: Queen's Printer, 1964)

10. Hallowell, infra, note 11, at 46.

11. A. Irving Hallowell, edited by J.S.H. Brown, The Ojibwa of Berens River, Manitoba: Ethnography into History (Fort Worth Texas: Harcourt Brace Jovanovich College Publishers, 1992), at 32.

12. ibid., 10/11.

13. ibid., 22.

14. ibid., 49.

15. Hallowell uses the term pimadaziwin, which he variously translates as "the good life" or simply "life", ibid., 82. Informants suggest that it means simply "life".

16. ibid., 93.

17. ibid., 94/95.

18. ibid., 93/94.

19. ibid., 93.

Independent First Nations Alliance 63 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum ife 20. E. Adamson Hoebel The Law of Primitive Man: A Study in Comparative Legal Dynamics (Cambridge, Mass: Harvard University Press, 1954)

21. The discussion which follows is based on Hoebel, ibid., and E. Adamson Hoebel The Cheyennes: Indians of the Great Plains (New York: Holt Rinehart and Winston, 1969).

22. Hallo well shows the interrelatedness of the Pikangikum, Lac Seul, Little Grand Rapids, Berens River and Bloodvein Bands: see the chart at supra note 11, 23.

23. supra note 11, 10.

24. Quotes from the elders which follow will not be noted. All the interviews except that with Frank Beardy were conducted entirely in the Ojibway or Oji-Cree languages. The names of elders who were interviewed, the interviewer, translator and other information can be found in Appendix 3.

25. Unfortunately, the Ojibway word is not included in the text. Frances Densmore, Chippewa Customs reprint of the Smithsonian Institution, Bureau of American Ethnology, Bulletin 86, (St Paul: Minnesota Historical Society Press, 1979) at 132.

26. The apparent confusion over the title of Chief John Bighead is because Wunnumin Lake was at the time, a satellite community of Big Trout Lake. Satellite communities usually viewed the Chief of the parent community as Chief of the satellite community also. The Chief of Big Trout Lake was properly Chief of Wunnumin Lake and John Bighead one of his councillors. John Bighead was referred to as Headman and sometimes Chief. Wunnumin Lake First Nation is now a fully independent community.

27. See Appendix 1 for Charged persons statistics relating to Big Trout Lake, Muskrat Dam and Pikangikum First Nations, 1988 through 1990.

28. R. v. Hatchard, [1993] 1 C.N.L.R. 96 (Ont. Ct. Gen Div), attached as Appendix 2.

29. See Appendix 1.

30. See Appendix 1.

31. See for example, Michael Jackson, "Locking up Natives in Canada" (1989) 23 University of British Columbia Law Review 215.

32. At a Conference on Abuse in the Family, Thunder Bay, Ontario, April 1, 1992.

33. Nishnawbe-Aski Nation is the regional organization for those First Nations signatories of Treaty No. 9.

Independent First Nations Alliance 64 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum GENOWIN DISOMIN/GUNOWEN DISOMIN KEEPING OURSELVES

A Comparison of Justice in Four First Nations

The Submission of the Independent First Nations Alliance to the Royal Commission on Aboriginal Peoples

Appendix 1

Charged Persons Statistics 1988 - 1990 Big Trout Lake First Nation Muskrat Dam First Nation Pikangikum First Nation

Independent First Nations Alliance 72 Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum Ontario Ministry of Provincial the Solicitor Police General

Police Ministère du provinciale Solliciteur de l'Ontario général Teleo" on«/Télé0hon«: 807-737-1383 Pil« rtlaranct/ Rèliranca: 616 Northwest Patrol Unit P.O. Box 128 SIOUX LOOKOUT, Ontario POV 2TO January 02, 1991

Mr. Frank-BEARD* Independent First Nations Alliance SIOUX LOOKOUT, Ontario POV 2T0 Re: Charged Person Statistics Muskrat Dam, Big Trout Lake & Pikanqikum

In response to your request dated 19 Dec 90 please find attached statistics for the noted communities from 1988-1990. This information is not on computer and has to be manually recovered, therefore, the details were condensed i.e. adult or younq offender versus age. We are unable to provide you with the details of the dispositions.

Enel.

Independent First Nations Alliance i Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum PIKANGIKUM

CRIMINAL LIQUOR LICENSES COMMUNITY CODE ACT BY-LAWS YEAR ADULT YOUTH ADULT YOUTH ADULT YOUTH SS 58 75 6 NIL 493 18 89 85 79 1 NIL 590 81 90 19 54 2 NIL 317 42

BIG TROUT LAXE

CRIMINAL LIQUOR LICENSES COMMUNITY CODE ACT BY-LAWS YEAR ADULT YOUTH ADULT YOUTH ADULT YOUTH 88 31 17 3 1 44 10 89 26 25 12 NIL 24 6 90 19 23 NIL NIL 39 8

KUSKRAT DAM

CRIMINAL LIQUOR LICENSES COMMUNITY CODE ACT BY-LAWS YEAR ADULT YOUTH ADULT YOUTH ADULT YOUTH 88 NIL NIL NIL NIL NIL NIL 89 NIL NIL NIL NIL NIL NIL 90 1 NIL NIL NIL NIL NIL

Independent First Nations Alliance ii Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum GENOWIN DISOMIN/GUNOWEN DISOMIN KEEPING OURSELVES

A Comparison of Justice in Four First Nations

The Submission of the Independent First Nations Alliance to the Royal Commission on Aboriginal Peoples

Appendix 2

R. v. Hatchard, [1993] 1 C.N.L.R. (Ontario Court, General Division)

Independent First Nations Alliance lxxv Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum "S 3 96 97 3£ -n R. v. Ilatchard K 2 REGINA v. PAUL MATCIIARD i lleld: Evidence admissible. Since Ihe evidence should not be excluded pursuant lo s.24<2) of a:fi) •i- Ihe Charter, il is not necessary la decide if the Charier applies or If Ihe search was 3o w unreasonable. w [Indexed as: R. v. Ilalchard] g 1. A determination of the reasonableness of a search must depend to some degree on the Ontario Court of Justice (General Division). Siach J.. October 9, 1991 circumstances under which the search is performed, including the degree of privacy an s' individual might reasonably expect. w T. McKay, for the Crown M. Van Walleghem, for ihe accused 2. Big Trout Lake is a remotely situated Aboriginal community far removed, in culture, language and tradition, from the emphasis on individual rights prevalent in a populous The accused was charged wiih possession of narcotics for ihe purpose of trafficking contrary urban setting. to s.4(2) of the Narcotic Control Act, K.S.C. 1985, c.N-l. The accused, a resident on a remote fly-in reserve in Northwestern Ontario, was searched as he entered the reserve after 3. The search policies of the community were widely known and had been posted at the having flown back to (he community. airport. They were posted at the band office. The evidence that "everyone knew of the policies" went unchallenged by the accuscd, and since he was a resident of the reserve, The Big Trout Lake First Nation is a remote, fly-in reserve community in Nonhwestern il can be inferred that the accuscd was aware of the search policies. The accused Oniano. The community airport is off-reserve and a bus takes those arriving in the community therefore, had a reduced expectation of privacy when he sought entry lo Ihe reserve on from ihe airport to the community. As pan of a concerted campaign against drug and alcohol ihe date relating to these charges. abuse, (he community had passed a prohibition by-law pursuant to s.85( I) of the Indian Act, R.S.C. 1985, c.I-5 which permitted the searching by a "special constable, a band constable or 4. The information predicting the commission of an offence was compelling. The any oiher authorized peace officer," of any person and the baggage of any person entering the information was from a credible source. Given the logistical problems inherent in law reserve in order lo search for intoxicants. The First Nation, as part of the campaign, hid enforcement in a remotely located Aboriginal community, and the reduced expectation instiiutcd a regular system of community patrols which slopped persons as they entered the of privacy existing at Big Trout Lake, the search was not unreasonable. reserve in order lo search for drugs and alcohol. 5. The search was pan of the collective effort of a remote Aboriginal community lo The First Nation officials received a tip from a band drug and alcohol employee, that the remove from its midst the social dcstructiveoess of intoxicants and admission of the real accused was returning to the community with drugs for the purpose of trafficking. The Ontario evidence obtained in the search will not bring ihe administration of justice into Provincial Police were absent from the community at the time and did not have the manpower disrepute. lo assist the First Nation officials. There was no resident justice of the peace in the community and the First Nation officials had not obtained a search warrant. 6. It was noted, obiter, that while band constables may not be peace officers under the Criminal Code, neither are they private citizens. The Indian Act, in relation lo elected The head councillor and acting chief of the community and the two band constables, slopped band councils, introduces a semblance of government-like organization, the degree and 00 the bus as it entered the reserve from the airport and searched the baggage. In a search of the structure of which does not comport well with most notions of private citizen activity. <5' accused, a bottle of liquor and a quantity of illegal drugs were found. The powers of band constables fall somewhere in between those of a peace officer and those of a private citizen, and, therefore, the Charier may apply to iheir activities. g The accused argued that the evidence discovered during the search was inadmissible in that the search contravened s.8 of Ihe Canadian Charter of Rights and Freedoms and should be 7. It was noted, obiter, that, if band constables are not peace officers, then the search was cT excluded under s.24(2). The accused argued that band constables were "peace officers" within not "authorized by law." Nevertheless, it was suggested, obiter, that a search may be the meaning of the Criminal Code and that therefore the Charter applied. The accused further acceptable if it is "reasonable." argued that the evidence should be excluded since the search was unreasonable and admission £ of the evidence would bring the administration of justice into disrepute. Reasons on Voir Dire C, The Crown argued that band constables were private citizens for the purposes of the Criminal CotU. They futther argued that the search was reasonable under the circumstances and thai the 2 evidence should therefore be admitted. STACH J.: Paul Ilatchard comes before me, having been charged with possession of c narcotics for the purpose of trafficking contrary to s.4(2) of the Narcotic Control Act, R.S.C. A voir dire was held for the purpose of establishing whether the impugned evidence should be 1985, c.N-l. The offence is alleged to have occurred on the 29th day of September 1990 at the excluded. First Nations Territory of Big Trout Lake. Mr. Hatchard has pleaded "not guilty" to the Indictment.

(I993| I C.N.L.R. 11993] 1 C.N.L.R. 3 f< D 98 3 s- R. v. Ilatchard 3

<3 Counsel for Mr. Hatchard has Hied a Notice of Moiion challenging the admissibility in ihese proceedings of certain real evidence tendered by the Crown. This voir dire was embarked U upon for the purpose of establishing whether the impugned evidence should be excluded, o' m The Crown indicated al the outset, that if I were ultimately to exclude the challenged evidence, > the Crown would not be proceeding further on this charge. The position of defence counsel is jf unknown. There is, however, specific agreement that if 1 find the impugned evidence ought g not to be excluded, all of the evidence on the voir dire will apply as evidence in the trial. ® Counsel for the Crown called four witnesses on the voir dire all of whom were cross-examined by defence counsel. The defence elected not to call any evidence.

Witnesses called by the Crown on the voir dire were: Stanley Sainnawap, Chief of the Dig Trout Lake Indian Band; Tom Morris, Head Councillor of the Big Trout Lake Band; Constable Phillip Jones, an O.P.P. Officer stationed in Sioux Lookout, Ontario: and, Steven Gliddy, a band constable in the employ of the Big Trout Lake Band. Documentary evidence on the voir dire consists of three exhibits, a Band Council Resolution (hereinafter referred to as the By- Law), a photograph depicting cenain substances found after a search, and a map showing the location of various remotely-located Aboriginal communities in Northwestern Ontario, including Big Trout Lake. Although, cenain particulars in the evidence of each of the witnesses was challenged on cross-examination, there was no serious challenge to the credibility of the witnesses. I find that each of the witnesses was credible and forthright.

The principal thrust of the defence position, is that a search of Mr. Hatchard's luggage contravened s.8 of the Canadian Charier of Right and Freedoms (the "Charter"), and that the evidence obtained pursuant to that search should be excluded under $.24(2) of the Charter. C: The factual background gives rise to, at least, three specific issues. For reasons which 1 shall momentarily give, 1 find it unnecessary to express any definitive opinion on any but the s.24(2) issue. Because the factual background is extensive and coincidentally relevant to all of the issues raised, I make the following extensive findings of fact.

Famial Rarkfroiind

Aboriginal Community of Big Trout Lake

The offence with which Mr. Ilatchard stands charged is said to have taken place on the first 3 Nations Reserve at Dig Trout Lake on a tract of land reserved to the Dig Trout Lake Indian £. Band. Big Trout Lake is a remote reserve in Northwestern Ontario. Its approximate location r- in the large land mass constituting Northwestern Ontario can be discerned from a map that was entered as Exhibit 3. For much of (he year, and in the month of September specifically, this community is accessible only by air. The nearest town to the south is Sioux Lookout, ¡¡7 approximately 1 lfl to 2 hours ' flying time" away, o ¡¡J* In September 1990, the population of Big Trout Lake stood at about 750 Native persons and e approximately 50 non-Native persons. Its airport is situate on Post Island, the site of the first Aboriginal settlement in the area. Much of the settlement is now on the mainland although pan ?Cr t of the community, including its motel, remain on Post Island. All of the reserve land of the Big Trout Lake Indian Band is identified by an official land a

" (1993) 1 C.N.L.R. 99

R. v. Ifalchard survey. One of ihc survey boundaries intersects Post Island, dividing it in such a way that the airpon is situate on Crown land which does not form pan of the reserve. The remainder of Post Island forms pan of the reserve set apart for the use and benefit of the Big Trout Lake Indian Band.

Travellers to the community of Big Trout Lake are met by a van at the airpon whcnce they are transponed to the Aboriginal settlement on Post Island. Accordingly, the van must at some point cross the reserve boundary line as it makes its way from the airpon towards the Aboriginal settlement.

Organization of the Big Trout Lake Indian Band

The affairs of the band are directed by the band chief and the band council consisting of 7 elected councillors. In September 1989, Stanley Sainnawap was the circled Chief; Tom Morris was the Head Councillor. In the absence of Chief Sainnawap, Tom Morris served as acting chief.

The band council functions in a collective manner in keeping with the cultural traditions of the community albeit each elected councillor is given a separate portfolio to oversee. Tom Morris, for example, was in charge of Economic Development for the community.

Stanley Sainnawap described the duties of the band council as being responsible for the well- being of the community in the areas of health, social development, education and economic development.

Law Enforcement on the Reseñe

The Northwest Patrol Unit, is a Unit of Ontario Provincial Police Officers which operates out of the Town of Sioux Lookout where the unit is based. It is a special "fly-in patrol" which must serve approximately 23 Native communities in First Nations Territories. The Unit performs policing functions at ail of the northern reserves. Each constable in the Unit acts as a supervisor to 'special constables,' also known as First Nations Constables.

Some nonhcrn reserves have 'special constables' assigned to them. Special constables are qualified and sworn police officers, employed by and responsible to the Ontario Provincial Police. Many have Aboriginal lineage, but frequently, do not hail from the Aboriginal communities to which they are assigned. Consequently, they often require interpreters. Two special constables' had been assigned to the Aboriginal community at Big Trout Lake. However, they were not present on the reserve on September 29th, 1990 when this offence is alleged to have taken place; nor were they present for the two week period preceding September 29, 1990.

Because the Northwest Patrol Unit is expected to serve all 23 Aboriginal communities in the far north, because these communities are frequently separated from one another and from the town of Sioux Lookout by vast distances, and because the rosier of the Northwest Patrol Unit is relatively small, the O.P.P. Officers in the unit are only occasionally present in a given Aboriginal community. Similarly the limited roster of special constables does not permit all reserves to have a special constable assigned to their community. Reserves fortunate enough to have 'special constables' must "do without" when the 'special constables' are absent for

(19931 1 C.N.L.R. n ® 100 "®O g- R. v. Halchard D =5* training, for vacations, or other similar purposes. The (wo 'special constables' assigned to the Big Trout Lake Reserve have on occasion been absent For up to 9 weeks at a lime. z s> a*. i) Band Constables 3O Although, I have grave reservations about discussing the phenomenon of band constables ^ under the sub-heading of Law Enforcement on the reserve, it will nevertheless, be useful to fij outline the function of band constables based upon the evidence led on the voir dire. Although, g the term "constable" forms part of the designation by which they are ordinarily described, I hesitate to draw any inference from this designation. They are not sworn police officers and they arc not trained by any provincial or federal police agency for the purposes of carrying out law enforcement duties. Band constables are residents of the First Nations Territories, appointed by their respective chiefs and councils for purposes which include assisting 'spccial constables' on those reserves where spccial constables arc present. In reserves which do not have a 'special constable,' band constables are the only form of resident "policing" that the reserve has. Band constables have not had any special status as peace officers conferred upon them by federal or provincial government appointment. They are appointed, and paid, by their own band council. They are employees of the band and take their directions from the band council. They arc not issued guns. They do not have the power to arrest or the power to search beyond that of an ordinary citizen.

ii) Band Constables at Big Trout Lake

In September of 1990, James Rae was an assistant band constable at Big Trout Lake; Steven Gliddy was the only band constable. Both were employed by and took their direction from the — • band council at Big Trout Lake. There is no written job description outlining their functions. • liven the oral description of their function given by Chief Sainnawap was somewhat vague and open-ended. Chief Sainnawap said that ihey performed primarily a preventive function, quelling potential trouble before it began. Being residents of the reserve, they were more likely to know the habits of other residents, more likely to spot trouble brewing and able to diffuse the situation before it could erupt. Because they knew the community and the dialect, they could be of real assistance to the special constables. Band constables had no power to conduct investigations on iheir own, but in the absence of the 'special constables,' they could preserve evidence and make initial inquiries. When things got out of hand from a physical standpoint, GO Ihey could come to the assistance of the 'special constables.' CO The Aboriginal community of Big Trout Lake was a "dry" community by choice. Steven Gliddy said that one of the specific duties assigned to him by the band council was to search for intoxicants at the reserve line. Me says that lie could not lay formal charges against anyone ET because he was not trained to do so. 8 " The two special constables who had been assigned to the Big Trout Lake Reserve, albeit not w present there at the material time, could not speak the language of the community. In the result, Steven Gliddy was quite helpful to them as an interpreter. (D In September 1990, (here was no sitting Justice of the Peace at Big Trout Lake. The closest 2 available sitting Justice of the Peace was situate in Sioux Lookout, a flight of l'/l to 2 hours m away. By virtue of microwave technology, the Big Trout Lake Band did have telephone ^ service with "the outside," including the Town of Sioux Lookout. Nevertheless, as al 0 1 119931 1 C.N.L.R. 101

R. v. Ifalchard

September 29, 1990. Tom Morris did not even know if the band council or a band constable could apply for a search warrant. Apart from the legal niceties surrounding that issue, the logistical and practical problems respecting law enforcement in this remote tionhem reserve should by now be apparent.

Big Trout Lake a "Dry" Community by Choice

It is readily apparent from all of the evidence on the voir dire that social problems on the reserve stemming from the abuse of alcohol and drugs was a problem in September 1990 and had been for some tinte. There was widespread concern in the community about these issues, a concern shared by community leaders, community resource workers and the population of the reserve at large. In an attempt to combat these problems, the band had engaged community resource workers, alcohol and drug abuse workers, mental health and family services workers.

Section 85(1) of the Indian Act. R.S.C. 1985, c.I-5, provides that the council of a band may make by-laws prohibiting the sale, barter, supply or manufacture of intoxicants on the reserve of the band and may also prohibit any person from having intoxicants in his possession on the reserve. With the encouragement and approval of the Department of Indian Affairs, the band passed such a By-Law in 1985. A special meeting of the band prior to passage of the By-Law confirmed widespread community approval for such a By-Law. The preamble to the By-Law recites that spccial measures for the protection of the citizens of the reserve of the Big Trout Lake Band from the presence of intoxicants arc considered necessary. Section 6 of the By- Law provides as follows:

(1) Every person coming into the Reserve of the Big Trout Lake Band shall, at that time, if requested by a special constable, band constable or any other authorized peace officer, declare whether or not, he has in his possession any intoxicant, whether on his person or on his luggage, bags, packages or other containers that he is bringing onto the Reserve.

(2) Following a declaration or a failure to declare under Subsection (I) a special constable, band constable or any other peace officer who believes, on reasonable grounds, (hat there is any person contravening Sections 2 or 3 of this By-Law.

(a) Detain that person for a period of time sufficient to conduct a search for any intoxicant, and containers.

(b) Detain the luggage, bags, packages or other containers that person is bringing onto the Reserve for a period of time sufficient to apply for a Search Warrant under Section 103 of the Indian Act and for a period of time sufficient to execute any warrant issued by a Justice of the Peace under Scction 103.

I observe here that the provision in the By-Law for a "declaration" upon entering the reserve is analogous to the declaration contemplated by the Customs Act on entry to Canada.

(19931 1 C.N.L.R. 102

R. v. Ifalchard

Sections 2 and 3 of chc By-Law adopt the prohibition respecting the sale and possession of intoxicants on the reserve set out in s.85(l) of the Indian Act. The Uy-Law incorporates by reference the definition of "intoxicant" in s.2 of the Indian Act. In fact, the Big Trout Lake Band By-Law expands upon that definition by also deeming that the following substances be included in the definition of intoxicant:

(i) Glue and the vapours (hereof. (ii) Lysol and other similar cleaning products and the vapours thereof. (iii) Gasoline and gasoline-based products and the vapours thereof.

One suspects that the initial draft of this form of By-Law was prepared by the Department of Indian Affairs and thereafter added to and passed along indirectly from band to band for consideration. It will be seen from the portion of the By-Law already referred to that pans of it are very inartfully worded. Nevertheless, all of the statutory prerequisites for passage of the By-Law were complied with; the By-Law was passed by the band council and, it was approved by Minister. It was in full force and effect as al September 29, 1990 and had been for almost 5 years before then.

Evidence from Chief Sainnawap and Head Councillor Morris indicates that while drug abuse was already a significant problem on their reserve in 1985 (when the By-Law was passed), the principal community concern al the lime was alcohol abuse. Tom Monis nevertheless made the observation that "community members stressed thai our community should be a dry community encompassing all." (Emphasis added.)

One of the issues raised by defence counsel is whether the definition of "intoxicant" employed in the By-Law is sufficiently broad to include narcotic drugs.

In the circumstances specified in s.6 of the By-Law, limited powers of "search and seizure" are given to band constables, special constables and peace officers. Because one of the issues raised on this voir dire is whether the accused knew of the By-Law (and whether he had thereby a reduced expectation of privacy), it is appropriate that I outline in some detail the steps taken to disseminate information about the By-Law, as well as certain practices instituted by the band in reference lo its enforcement.

After its passage in 198S, copies of the By-Laws were posted in public places including (he band office, the radio station, nursing station and stores. It was talked about on the band radio station. A copy of the By-Law was posted at the aiipon, although it is doubtful whether as at September 29th, 1990 it was still posted there. To this day, the By-Law is posted in the band office.

The "Dry Policy," of the reserve is communicated regularly by band officials to the Ministry of Northern Affairs, Ministry of the Environment, Bearskin Air, Bell Canada, to teachers and nurses employed on the reserve and, to contractors and consultants who work in the Big Trout Lake community. As a general rule the band policy was outlined to all employees of the band and lo employees of the Economic Development Corporation. There was no standard procedure for explaining the policy to employees, however, and none of the witnesses could say with absolute certainty that the policy had been outlined to Paul Hatchanl.

Dating from the passage of the By-Law in I98S, the band council instructed band constables to

(19931 1 C.N.L.R. 103

R. v. Ilatchard

make routine searches of ihe luggage of all persons, Naiive and non-Native, entering the reserve. With rare exception, daily luggage searches were routinely performed at the reserve line.

In winter months, when the lakes are frozen and the reserve is accessible by snowmobile, the band constables are instructed to stop all snowmobiles entering the reserve for the purpose of detecting intoxicants that may be brought onto reserve lands. The fact of luggage searches at the reserve line is well known to all persons who reside on the reserve.

Not all northern reserves are dry reserves. On the dry reserves, however, the phenomenon of searches for intoxicants is commonplace and widely known. The evidence of all witnesses on the voir dire except Steven Gliddy, (who was not asked about it), was that perimeter searches by band constables, without warrant, are not only widely known inside and outside of the dry reserve communities, they are tolerated and accepted as "almost a way of life up there." Constable Jones said that "literally everybody who lives up north is aware of it." This evidence was candully given; it went unchallenged by defence counsel; and u distasteful as the fact - so badly stated - initially appears to be, I accept it as true.

A sign at the airport on Post Island carries the warning that "ALCOHOL AND DRUGS ARE PROHIBITED ON THE BIG TROUT LAKE RESERVE." That sign has been in place there since 198S. Since 1986, a sign at the location where the airport road intersects the Reserve Boundary has warned "RESERVE STARTS HERE, ALCOHOL AND DRUGS PROHIBITED."

It is suggested in the evidence and in the submissions made by counsel for the Crown that persons who do not wish to subject themselves or their luggage to search have open to them the option of electing not to enter onto the reserve. A provision in s.5 of the By-Law specifically excepts from the sanctions of the By-Law a tourist "transporting an intoxicant in an unopened stale across the reserve to a destination beyond the Reserve boundary.' Section 5 underscores the notion that the entrant has such an "option" but it appears to me that this section of the By-Law, at least, docs not address itself to illicit drugs.

Hatchards Connection with the Community of Big Trout Lake

Mr. Morris said he knew Mr. Hatchard personally from May 1990 to September 1990. Mr. Ilatchard had been hired as a cook by the Economic Development Corporation of the band. The hiring came about as a result of a job posting submitted by the band to the Canada Manpower Office in Kenora. Additional terms of employment included the provision of room and board for Mr. Hatchard and his wife at the motel. The motel is run by the Economic Development Corporation and is situate on the reserve. Other features of Mr. Hatchard's hiring included the offer of a job to Mr. Hatchard's wife and reimbursement for the cost of Hatchard's air travel into the Big Trout Lake community. If Hatchard wanted to go on a holiday, the cost of his travel out of the community would also be borne by his employer.

Accepting the commencement of employment as some date in May 1990, I find that Mr. I laichard resided at the hotel on the reserve for at least 4 months, except as hereinafter outlined. Based upon evidence led on the voir dire, 1 also find that Mr. Hatchard was employed on the reserve for an unspecified period of time on a previous occasion. Neither Mr. Hatchard nor his wife gave evidence on the voir dire. Accordingly, nothing is known about their ordinary place of residence away from the reserve.

[1993) 1 C.N.L.R.

>t 3 Q. ID "3S 104 ®a R. v. llalchard

The Tip

g. One and one-half weeks prior to September 29th, 1990, Tom Morris received information that o Paul Hatchard was on a drug run and that he would be returning to the community with illicit " drugs. Tom Morris received this lip in a face-lo-face conversation with an individual who had ^ been a life-long resident of the communily and whom Mr. Moms had known since childhood. 5' The informant was conversant with community issues including its problems with alcohol, n drugs and other concerns like family problems and youih problems. This individual had been ® working with the band council in reference lo community social problems. Specifically, he was employed by the band to work with young people in the community who had drug and alcohol problems.

The informant was a sober person. He had previously had his own problems wilh alcohol and drugs and had worked them out. Based upon his life experience and his specific employment wiih the band, he was particularly well-placed to become privy to the very information that he imparted to Mr. Morris. As an employee of the band and as a member of the communily, he had a duty to make his information known to the band council.

Issues which this individual had on other occasions identified as problems in the communily had been found to be accurately described.

Mr. Morris believed the informant and took the information seriously. On receiving the information, Morris checked to see whether llatchard was in or out of the community and learned thai llalchard was then out of the community. Morris met with ihe chief and the band councillors to discuss how they might deal with this information. As a result of deliberation in the band council. Mr. Morris was instructed to advise the Northwest Patrol about ihe information he had received, and he did so. Mr. Morris was told by the Northwest Patrol thai the Unii did not have the manpower to deal with the situation directly, especially since the band had no information about Mr. Hatchaid's return date to the communily.

Mr. Morris telephone ihe airlines every day to determine v/helher Hatchard was booked on a return flight to Big Trout Lake. The band constables were dispatched to the airport and to the reserve line daily with specific instructions to check Mr. Hatchard if he should come in. Mr. Moms instructed ihe motel manager on the reserve to make discreet inquiries of Mrs. Hatchard (who was still present on the reserve) respecting the anticipated return date of her husband.

o Mr. Morris made no attempi to discern the source of his informant's information. Beyond S w hat he had already done, he made no other attempt to verify the accuracy of the information. C This stance by Mr. Morris was deliberate because the population of Big Trout Lake was quite ¡J" small and he did not wish to run the nsk of alerting Mr. llatchard thai the band council had been forewarned. From Mr. Morris' perspective: "we had lo do what we did." As it ET happened, Tom Morris did not learn of Hatchard's imminent return lo Big Troul Lake until 1 '/2 ° hours before the aircraft arrived. CmO „— Throughout his testimony, Mr. Morris emphasized repeatedly the strongly expressed will of g; his community for perimeter searches to continue as a means of preventing the introduction of ¡= intoxicants into the reserve from the outside. As an indication of the importance to them of that 2$" policy, Mr. Morris said that communily members wanted the band councillors to be directly Si. involved in the search process generally. Turning to the specific and to the search of Mr. 0 1 [1993] 1 C.N.L.R.

R. v. Ilatchard

Hatchard and his luggage on the 29th of September 1990, the decision to search for drugs was a deliberate decision of the band council honestly made in the best interests of the Aboriginal. community it was bound to serve.

The Search

On September 29th, 1990, Steven Gliddy was at the airport on Post Island waiting for the arrival of the scheduled Bearskin Airways flight. Gliddy knew Paul Haichard. He watched Ilatchard make his way from the aircraft to the waiting van. He observed Hatchard to be carrying a blue denim bag, whose approximate dimensions he described as being 1' wide, 2' long about 1' deep. The bag had a shoulder strap. He observed that no other passenger had a blue bag.

Steven Gliddy and James Rae followed the van as it made its way towards the reserve. At the reserve line, Gliddy slopped (he van and told the passengers that he and James Rae wished to search the bags. At that lime, he observed Hatchard to be sitting in the front seat of the van next to the driver.

The passengers' bags were situate in the rear of the van. Gliddy and Rae searched these bags without removing them from the van. All of the passengers except Hatchard remained in the van while the baggage search was being performed. I note in passing that none of the passengers objected to the baggage search but, by the same token, there is no indication that any of them had expressly consented. Gliddy saw Haichard gel out of the van and stand by the roadside. Haichard was neither holding nor carrying any luggage as he stood, on reserve land, conversing with Tom Morris.

Steven Gliddy performed a "frisk search" of Hatchard by running his hands down the sides of Hatchard's person, and in so doing, Gliddy found a bottle of alcohol which he described as being larger than a 12'/l ounce "mickey." After finding the bottle of alcohol, Gliddy returned his attention to the inside of the van because he remembered that Hatchard had been carrying the blue denim bag already described and Gliddy had not yet seen it. When Gliddy checked underneath the front passenger scat (where Hatchard had been sitting), he discovered the blue bag in question. Gliddy removed the bag from its place under the passenger scat, opened the zipper and looked inside. He found nothing unusual. He then handed the blue bag to James Rae who ran his fingers over a portion of the blue bag and made a statement to the effect that "there's hash in there." Just then, Gliddy observed Hatchard to be turning red (blushing). After the discovery of the secret compartment sewn into the blue bag, Hatchard simply returned to his residence on the reserve. The blue bag was taken to ihe band office by Tom Morris.

The search described so far took place entirely on reserve land in close proximity to the reserve line. There is no indication in the evidence that any of the remaining passengers were subjected to a frisk search. None of the band personnel involved in the search near the reserve boundary carried a gun or any other kind of weapon. Although, there is no evidence directly on this point, I have the impression from all of the evidence that neither Steven Gliddy nor James Rae were uniformed.

When, at the reserve line, Paul Hatchard had got out of the van and engaged in conversation with Tom Morris, Morris told Hatchard directly: "we're going to have to check your stuff cause someone provided me with information that you were bringing some stuff in." Hatchard

[1993] I C.N.L.R. 106 H i 107

R. v. Ilalchard R. v. Ilalchard responded with a question, "Alcohol?" Tom Monis said, "No, drugs", to which Ilalchard 32.(1) This Charter applies said, "1 don't do thai stuff". Shortly after Hatchard's disclaimer, either James Rae or Steven Gliddy drew Morris' attention to the blue bag with the statement that they "felt something." a) lo the Parliament and government of Canada in respect Tom Morris also felt that pan of the blue bag which had been drawn to his attention and of all mailers within the authority of Parliament observed stitching, which he described as "threadwork," forming a hidden pocket. Morris including all matters relating to the Yukon Territory and carried (he blue bag to (he band office. Once there, he removed the threadwork (hereby the Northwest Territories; and revealing (he "hidden pocke(." Tom Morris removed the entire contents of the hidden pocket onto the table in the band office. A graphic depiction of the contenls may be seen in the b) to the legislature and government of each province in photograph entered as Exhibit 2. Those contenls were described as follows: Plastic bags respect of all mailers wilhin the authority of the containing four vials, each vial containing approximately 5 grams of a dark tarry substance; 5 legislature of each province. plastic bags containing a dark brown substance formed into a brick-shape. Section 8 of the Charter states that "Everyone has the right to be secure against unreasonable Morris summoned the chief of the Big Trout Lake Band. A meeting of the band council was search or seizure." held as a result of which Tom Morris telephoned the Northwest Patrol in Sioux Lookout. Section 24 of the Charter su(es: The foregoing account of the factual background represents my findings of fact on the voir dire. 24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter have been infringed or denied may apply to a court of The Issues compcteni jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. The defence argues thai the search and subsequent seizure were contrary to s.8 of the Charter, and that the evidence obtained thereby should be excluded pursuant to s.24(2) of the Charter. (2) Where, in proceedings under subsection I, a court The defence says that the band constables who conducted the search arc, to all intents and concludes that evidence was obtained in a manner that infringed purposes, "pcace officers" and thai the Charter, therefore, applies to the search. or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established thai, having repaid It is the Crown's position thai the band constables are not "peace officers" as thai term is to all the circumstances, the admission of it in the proceedings defined in s.2 of the Criminal Code. The Crown contention is thai the "band constables" are would bring the administration of justice into disrepute. private citizens and that their actions ate therefore not subject to Charter review. Criminal Code The issues on the voir dire were briefly staled as follows: The definition of peace officer in s.2 of the Criminal Code includes: 1. Does the Charter apply to the search? c) a police officer, police constable, bailiff, constable, or other a) Is a band constable a peace officer under Section 2 of the person employed for the preservation and maintenance of the Criminal Code? public peace... (emphasis added) b) If the answer lo (a) is "no," does the Charter apply lo a search and seizure by a private citizen? Indian Act

2. If (he Charier does apply, was the search "unreasonable" Section 85.1 of the Indian Act has already been alluded lo along with the band By-Law in and, therefore, contrary to section 8 of the Charter? question. The full text of the band By-Law is sel out in Exhibit I. It will be recalled that s.85.1 of the Indian Act contains the provision empowering a band to make by-laws 3. If ihe search was "unreasonable," should the evidence be prohibiting the sale, barter, supply, manufacture or possession of intoxicants on the reserve of excluded pursuant lo Section 24(2) of the Charter? the band.

Relevant Statutory and Charter Provisions In s.2.(l) of the Indian Act, "band" means a body of Indians a) for whose use and benefit in common, lands, the legal title The Charier to which is vested in Her Majesty, have been set apart... (emphasis added) Section 32 of the Charter states the following: [1993] 1 C.N.L.R. [1993] 1 C.N.L.R. 108 t© 3g- R. v. Ilatchard In s.2 of the Indian Act. intoxicant is defined as follows:

"intoxicant" includes alcohol, alcoholic, spirituous, vinous, fermented malt and other intoxicating liquor or combination of liquors and mixed liquor a pari of which is spirituous, vinous, fermented or otherwise intoxicating and all drinks, drinkable liquids, preparations or mixtures capable of human consumption that are intoxicating-, (emphasis added)

Section 18(1):

18.(1) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart;...

Section 30: 30. A person who trespasses on a reserve is guilty of an offence

Section 81(1):

81.(1) The council of a band may make by-laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, for any of the following purposes, namely:

(a) to provide for the health of residents on the reserve ... (c) the observance of law and order, (d) the prevention of disorderly conduct and nuisances;

(q) with respect to any matter arising out of or ancillary to the exercise of powers under this section; 03

(c) the appointment of officials to conduct the business of oST the council, prescribing their duties and providing for their

[1993) 1 C.N.L.R. R. v. llalchard

an offence against section ... 85.1 ... has been committed, he inay seize all goods and chattels by means of or in relation to which he believes on reasonable grounds the offence was committed.

Narcotic Control Act, R.S.C. 1985.C.N-1

10. A peace officer may, at any lime, without a warrant enter and search anyplace other than a dwelling house,... in which the peace officer believes on reasonable grounds there is a narcotic by means of or in respect of which an offence under this Act has been committed. (emphasis added)

(Certain words or phrases in the foregoing statutory provisions have been italicized to draw special attention to them. The emphasis so added is mine.)

Discussion

Having regard for the conclusion I have come to in regard to Issue 3 (whether the impugned evidence should be excluded under s.24(2) of the Charter) it is unnecessary for me to decide either of the first two issues. Nevertheless, I do not wish to leave either Issue 1 or Issue 2 entirely will tout comment.

IssucJ a) Is a band constable a peace officer under s.2 of the Criminal Code? b) If the answer to (a) is "no", docs the Charter apply to a search and seizure by a private citizen?

1 can well understand the interest of defence counsel in assening, as he did here, that a band constable is, in fact, a peace officer. From the perspective of defencc counsel a positive response to that question makes it unnecessary for the defence to grapple with the more difficult proposition that the Charter has no application to a search and seizure effected by a private citizen. In my view, however, a third alternative remains viable and, perhaps, offers a more thoughtful solution than a simple "yes" or "no" answer to the bald "peace officer"/"private citizen" dichotomy posited in issue 1.

In my view, it does not necessarily follow from a conclusion that Steven Gliddy is not a peace officer that he is automatically a private citizen. It must be recalled that Steven Gliddy was acting here on the instructions of his employer and not purely as a private citizen. Moreover, the scheme of the Indian Act, in relation to elected band councils, introduces a semblance of government-like organization in a "body of Indians" specifically recognized by statute. That degree of organization and thai kind of structure does not comport well with most notions of "private citizcn" activity.

If one looks only to the definition of peace officer in the Criminal Code, it is possible at first

[1993] 1 C.N.L.R. 3 8- "8 3 110 Ill 38- R. v. llatchard R. v. llalchard TI a blush to envision Sieven Gliddy as a "person employed for the preservation and maintenance circumstances, does not on its face permit a search of luggage without warrant. of ihe public pcace." Further, when one examines the functions actually performed by Sieven Gliddy, including his limited powers of search and detention under s.6 of the By-Law, the In R. v. Hamill (1984), 14 C.C.C. (3d) 338, the British Columbia Court of Appeal accepted connection with the Code definition seems more readily apparent, particularly if one equates the •if the proposition that a search "not under legal authority may nevertheless be reasonable." preservation and maintenance of the "public peace" with the "normal state of society." However, in R. v. Noble (1984), 16 C.C.C (3d) 146 at p. 173. Martin J.A. casts some doubt é on lhat proposition when viewed from the perspective of a constitutional standard of Ironically, if I were to conclude that a band constable in the position of Sieven Gliddy is, in reasonableness. He concludes: "Generally speaking, conformity to the law would seem to be fact, a peace officer, that recognition would arguably give band constables substantially greater an essential component of reasonableness." Prudence suggests lhat ihe more cautious powers of search without warrant than they presently have, including additional powers approach recommended by Martin J.A. is appropriate. pursuant to s. 10 of the Narcotic Control Act. I am not convinced, despite ihe expansive definition in the Criminal Code, that an untrained band constable in the position of Steven In the peculiar context of ihe present case, all manner of rationalizations can be advanced in an Gliddy is a peace officer. 1 am unable to discern from the material provided to me a clear attempt either to justify the reasonableness or the lawfulness of ihe search that was actually legislative intention - in the absence of specific legislatively sanctioned appointment - to confer undertaken here. In my respectful view, however, those arguments comport more easily and upon band constables all of the duties and responsibilities of a peace officer. If an untrained with considerably less torturing lo an analysis under s.24(2) of the Charter. The cases band constable is to acquire the status of • peace officer, it is much to be preferred lhai ihis discussed in the following segment of my reasons are relevant to issue 2 because many of them status be deliberately accorded by legislatively authorized appointment rather than by an indirect go to reasonableness of the search. They are coincidental^ germane to s.24(2) analysis process of judicial decision-making in individual cases. because they also bear on ihe second and third sel of factors discussed in Collins v. The Queen (1987), 33 C.C.C. (3d) I (S.C.C.). In my very brief discussion of the issues raised in issue 1, I posit a potential answer to the question quite different from the two alternatives initially contemplated in the framing of that issue. Inasmuch as I have not had the benefit of submissions from counsel on this third Issue 3 alternative, I think it would be unwise for me to deal further with these issues. Should ihe results of the search be excluded pursuant lo 3.24(2) of Ihe Charter? K: Iüu£_2 While il is usual to commence an analysis of ihis issue with a review of the principles enunciated in Collins, I propose nevertheless to adopt a different order. If the Charter docs apply, was ihe search "unreasonable" and therefore contrary to s.8 of the Charter? Reasonable Expectation of Privacy

For the purpose of dealing briefly with issue 2.1 am going to assume temporarily thai I have Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 is one of the seminal cases involving s.8 reached no conclusion on Issue 3 and that the Charter does, in fact, apply to the circumstances of ihe Charter. Of interesl here, is ihe observation of Dickson J. as he then was, lhat the right of individual privacy is not entirely unqualified: here in question.

s> Where, as here, it is readily demonstrable that the search was effected without a warrant, the The guarantee of security from unreasonable search and seizure Nor, could the Crown derive any support from s. 103(1) of ihe Indian Act because^ although a 2 band constable is arguably "a person authorized by the Minister to carry out a "seizure" of [The emphasis added to the last 4 lines only is mine] c goods and chattels," lhat section authorizes only the "seizure" of goods and chattels. Section Vt 103 does not authorize a "search." In Simmons v. The Queen (1988), 45 C.C.C. (3d) 296 Dickson C.J.C., as he then was, I expanded on lhat observation to some extent when he staled: Even s.6 of the band By-Law, which empowers a band constable to seize luggage in certain

[1993] I C.N.L.R. [1993J 1 C.N.L.R. R. v. llalchard

A determination of reasonableness musi depend lo some degree on the circumstances in which a search is performed, (ai p.319)

Dickson C.J.C, added ihe rider, however, lhal it would be wrong to place "overwhelming emphasis" on ihe surrounding circumstances when assessing reasonableness under s.8.

In R. v. Wong (1990), 60 C.C.C. (3d) 460, at p. 468 Wilson I. indicated, in the context of s.24(2) of the Charter, that the presence of the words "in all the circumstances" in s.24(2) suggest that, in determining whether evidence obtained in violation of Charter rights should nonetheless be admitted, the context is vital. Also, in Wong, and also in dissent, Lamer J. as he then was, said (at p. 463) that the "consideration of whether an individual has a reasonable expectation of privacy can only be decided within the particular factual context..."

While each of these statements was expressed in a separate dissenting opinion in Wong, I do not regard these statements of principle as being at odds with the ratio of the majority in that case. Similar statements of principle regarding the importance of context may also be found in other judicial settings. See for example the statement of La Forest J. in Lyons, a case involving a consideration of the dangerous offender provisions in the Criminal Code: "It is ... clear that the requirements of fundamental justice are not immutable; rather, they vary according to the content in which they are invoked." (R. v. Lyons, (1987) 2 S.C.R. 309 at p. 361.)

This reference to principle in a wide variety of cases is to draw attention to the particular setting anil circumstances in the llalchard case. Specifically, Big Troul Lake is truly a remolely- tocaied Aboriginal settlement far removed, in culture and tradition, from ihe emphasis on individual rights prevalent in a populous urban selling. The conduct of Tom Morris and Steven Gliddy, and the arguably reduced expectation of privacy on the part of Hatchard should, I think be assessed in thai different light. One docs not absemmindedly turn off at the next interchange on Highway 401 and find oneself in the Aboriginal community of Big Troul Lake.

It is sometimes overlooked that the District of Kenora comprises approximately one-third of the land mass of the entire province of Ontario and that to arrive in Big Trout Lake - even from a point of departure in Northwestern Ontario - requires a high degree of deliberateness, convoluted and difficult travel arrangements, and a good deal of forethought about the very different milieu in which (he traveller will find himself. I find the Simmons case intriguing because it involves a search at a "border crossing" and because of the proposition accepted by Dickson C.J.C, thai (he degree of personal privacy reasonably expected at Customs is lower than in most olher situations. (Supra at p. 320.)

In suggesting ihis border crossing comparison by analogy, I am not unmindful of the fact that Simmons involved an international border crossing; nor am I unmindful of the ¡lieta in U.S. constitutional cases which draw a distinction between searches at international boundaries and searches within national boundaries. The comparison nevertheless bears some thought, irrespective of notions of sovereignty, when the vast cultural, language and other differences of this Aboriginal community is specifically taken into account.

Aboriginal reserves are "held" by Her Majesty, but they are set apart for the use and benefit of the respective bands. (Sec s. 18(1) of the Indian Air.) The scheme of the Indian Act also bespeaks of a collectivity. See Joe v. Findlay, (1981) 3 C.N.L.R. 58 at 60,11981) 3 W.W.R. 60, 26 B.C.L.R. 376, 122 D.L.R. (3d) 377 at 380. The right of use and the benefit of reserve

(19931 1 C.N.L.R. R. v. llalchard

land is held in common for all band members. See aJso R. v. Devertux. 51 D.L.R. (2d) 546 at 550 (S.C.C.).

In R. v. Roy (1985). 25 C.C.C. (3d) 472, O'Brien J. referred to the common law right of the owner of private property to make submission to a search a condition of entry. That case involved mass searches of individuals seeking entry to a rock concert at Maple Leaf Gardens. O'Brien J. noted that the searches were, in part, justified by the occupier's duty to ensure the safety of those attending the concert, a situation not entirely unlike the duty on the chief and the band council to ensure the health and well-being of the community members.

In the course of his reasons, O'Brien J. places emphasis on the fact that signs were posted at Maple Leaf Gardens giving potential entrants a clear choice of submitting to searches or not entering. The signs in the ease at bar were much less explicit but the option was the same. Signs are meant to impart information and awareness. In the case at bar, the level of knowledge and the awareness of band policy will play a significant role. Unlike the circumstances in the Roy case, it cannot be said that the Big Trout Lake Band enjoys all of the incidents of ownership of land at common law, but the band is at the very least "an occupier' and has a correlative duty recognized by statute to protect the health and social interests of its resident members.

The case of Khan v. El. At. Israel Airlines (1991), 4 O.R. (3d) 502, although it is a civil case, reviews some concepts that may usefully be considered here. Mr. Khan knew from the terms of his ticket and from signs posted at the airport that he subjected himself to a luggage and body search if he clected to enter the LI A1 aircraft at Toronto. Given the state of Khan's knowledge and all of the surrounding circumstance], the learned judge considered that Khan had given implicit valid consent to the search. I am cognizant of the fact that cases involving airport searches are accorded a less stringent Charter analysis because of the statutory basis for searches found in International Conventions and because of the specific security interests that are sought to be protected. Nevertheless, the analogy to Hatchard is not so far removed.

Because Mr. Ilatchard elected not to give evidence on the voir dire, the court is left to consider and lo draw its own inferences from other evidence that bears on Haichard's knowledge or awareness of the community's search policy. Here I consider evidence that Hatchard actually lived on the Big Trout Lake Reserve for a period of time, left and returned there again to wort on the reserve for a period of moths prior to September 29, 1990. There is credible evidence from a variety of sources that searches were routinely carried out at the reserve boundary, continuously, for a period of years which encompasses the times that Mr. Hatchard lived on the reserve. All of the evidence indicates that the searches were well known within the community and widely known, by Natives and non-Natives alike, in the north. That evidence is unchallenged and the inference is very strong indeed that Hatchard actually knew of the Big Trout Lake search policy. Such awareness goes directly to the reduced expectation of privacy which I latchard actually had when he sought entry onto the reserve on September 29, 1990.

R. v. Wong (1990), 60 C.C.C. (3d) 460 is a case which involved "searches" by means of sophisticated video surveillance and the reasonableness of such searches from a Charter perspective. In view of the fearsome implications respecting the search technology used, the majority in Wong, subjected the police conduct in question lo very stringent scrutiny. The majority opinion, expressed by La Forest J. (at p.41), held that it was a mistake to factor engagement in illegal activity (by the accused) into the analysis of the reasonableness of the

[1993] 1 C.N.L.R. 8- "S 114 g" R. v. llalchard

search and suggested that the queslion which ought properly to be asked must be framed in ^ broad and neutral terms so as to become "whether in a society such as ours persons in similar g1 circumstances have a reasonable expectation of privacy." Applying that caution to the case at 3 hand, 1 am persuaded that, framed on broad neutral terms, the question to be asked here is ^ whether there is a reasonable expectation of privacy in a person's luggage when the person is = seeking entry onto a "dry" Aboriginal reserve in a remote location. The evidence leaves little § doubt how the residents of the Big Trout Lake Band would answer that queslion. More to the 8 point perhaps, is how Canadians at large would answer the question so framed. Having given the question extensive consideration, I have no doubt that the answer would be resoundingly the same.

In R. v. Deboi (1989), 52 C.C.C. (3d) 193, Wilson J. albeit with some qualification from other judges, expressed the majority view. She outlined the following test:

In my view, there are at least three concerns to be addressed in weighing evidence relied on by (he police lo justify a warrantless search. Firs(, was (he information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a "Tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior lo making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the ^ standard of reasonableness. Weakness in one area may, to some extent be compensated by strength in the other two. (at p. 215)

Here again, we see a reference to the "totality of circumstances" which suggests that a contextual approach is in order. Adopting such an approach, I find from the extensive factual background in the case at bar (under subheading "The Tip") that the first two components of the lest are soundly satisfied. Some may suggest weakness in reference to the third branch of the test. Looking at the totality of the circumstances, however, this third branch of the test is much reduced in significance. The verification that may be thought compelling in an urban CD centre with a very sophisticated police force readily at hand, and a population sufficiently large "-1 so as to diminish substantially the risk of "letting the cat out of the bag," hardly obtains in a ^ ease like that presented here, c P It may now be appropriate to re-examine (he tests respecting s.24(2) of the Charter set out in ®¡¡J . Collins, and their application here and in al least a few other cases. r- The person seeking to exclude the impugned evidence must, of course, assume the burden of o persuading the court, on a balance of probabilities, that admission of the evidence could bring cp the administration of justice into disrepute in the eyes of a reasonable person, dispassionate, c and fully apprised of the circumstances of the case.

Examining the first set of factors (trial fairness) and the nature of the evidence obtained as a g. result of the Charter violation, it must be acknowledged that the evidence obtained from Mr. § Hatchard's denim bag is "real" evidence which existed independently of any supposed Charter ~ breach. Although, K. v. Kokesch (1990), 61 C.C.C. (3d) 207 is a recent exception, such

(19931 1 C.N.L.R. US

R. v. Ilatchard evidence will rarely be excluded.

In reference 10 the second set of factors set out in Collins. I hold the view that a contextual approach is again appropriate. The conduct of an untrained band constable, and a band council poorly schooled in the legal niceties, can hardly be measured against the standard of the trained professional in an urban area. That is especially so when singularly different cultural, social and language factors arc considered in the same mix. Given the logistical problems inherent in law enforcement in a remotely located Aboriginal community, the differences in community tradition and the relative lack of law enforcement sophistication, one would be hard-pressed to suggest thai the removal of the threadwork in exploring the contents of the blue bag should be characterized as flagrant

1 note that in Simmons v. The Queen, Dickson C.J.C. rated three types of searches in order of their seriousness. (Supra at p. 312.) By comparison the search of a blue denim bag here is by far the least intrusive of the 3 types and, also in its "impact" on Mr. Haichard. Moreover, the manner in which the search was carried out was characterized by a very high degree of civility. It will be recalled, among other things, that Hatchard was allowed to return immediately to his residence on the reserve.

Had Mr. Hatchard elected to leave rather than enter the reserve (when the van was stopped at the Reserve Boundary Line) I am persuaded that Mr. Hatchard would have been allowed to continue on his way without subjecting himself or his luggage to a search by the band constable and the band council.

Kokesch is rather i different situation from the case at bar. In Kokesch a trained police officer, knowing that he stood no chance of obtaining a search warrant, deliberately trespassed onto the pnvate property of the accused. Having regard for the high measure of protection that that the law affords to private property owners, the result in Kokesch, although unusual, is hardly surprising. Hatchard, by contrast, was seeking entry onio lands "set apart" for the Big Trout Lake Indian Band.

The third set of factors in s.24(2) analysis takes account of the chance that the administration of justice could be brought into disrepute by excluding evidence despite the fact it was obtained by means of a Charter breach. Considering the interests of the Aboriginal residents of the Big Trout Lake Band which the band council was trying to protect, I conclude that this is one of those cases where the potential harm to the integrity of the judicial system from excluding the evidence will be so great that it is the exclusion of the evidence and not its admission which would bring the administration of justice into disrepute.

The Canadian community at large would be shocked, I think, if the collective effort of a remote Aboriginal community to remove from its midst the social destructiveness of intoxicants were met with the exclusion of essential evidence in the circumstances as I have found them to be. lhc accused, in my opinion, has not satisfied the burden of proof on a balance of probabilities in respect of this application. Accordingly, I would admit the real evidence in question and dismiss the application of Mr. Hatchard.

Counsel, I may be spoken to about a date for the continuation of this trial.

[1993] I C.N.L.R. #

GENOWIN DISOMIN/GUNOWEN DISOMIN KEEPING OURSELVES

A Comparison of Justice in Four First Nations

The Submission of the Independent First Nations Alliance to the Royal Commission on Aboriginal Peoples

Appendix 3

Project Description and Research Team

Independent First Nations Alliance iii Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum Independent First Nations Alliance

Royal Commission on Aboriginal Peoples

Guideline Questions for Interviews

I The IFNA Presentation: The Independent First Nations Alliance is making a presentation to the Royal Commission on Aboriginal Peoples. IFNA and its members First Nations is interested in developing self-government in justice.

The presentation will compare the use of traditional social control practices in the four IFNA communities. IFNA wishes to demonstrate that traditional practices are still in the process of being destroyed and replaced by the Canadian justice system. It is known that the Canadian justice system does not work effectively for First Nations. The purpose of the presentation is to convince the Royal Commission that only community initiatives based on custom can work effectively in the communities.

A community justice system operates to maintain social order in the community. It is not necessary for such a system to be a criminal system. It can be a healing process. IFNA wishes to explore how traditional communities maintained social order and how much traditional practices are still in use in the community.

II Process: IFNA personnel will interview and, if acceptable, tape record interviews with a limited number of elders from each of the EFNA First Nation communities. As much as possible, the interviews will be undertaken and recorded in the language of the community. The results will be written into a paper which will be presented to the Royal Commission. The work will take place in coordination with Chiefs and Councils of the IFNA communities.

HI Possible Questions:

i (a) Do you have any knowledge of when your First Nation first encountered the whiteman's legal and justice system?

(b) When was whiteman's law first imposed? How? What persons were involved in the white justice system?

Independent First Nations Alliance iii Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum 11 (a) What did/do you call the persons who are involved in the white justice process in your language?

(b) Why are those names used?

111 (a) What sorts of behavior did the whiteman's system intervene in?

iv (a) Before whiteman's law was introduced and/or imposed, How did the community deal with behavior which affected harmony in the community?

(b) Who was involved in community intervention? How did they get involved? What sort of things did they do?

v What names did you use for these practices and the people who got involved?

vi What sort of behavior did the traditional practices intervene in?

vii Are these practices used today? How much?

Topics of interest which might inform the above discussions

How is it decided that the community should intervene in a persons behavior?

How does intervention take place?

Who is involved in intervention in any particular instance? (i.e. Elders, relatives, community leaders, victims if an offence is involved)

How is reintegration into the community indicated?

Is intervention made known to others in the community who were not part of the event precipitating intervention?

What is the language and what vocabulary is used through the process?

Does the process vary for different groups in the community, and if so, how and for what groups?

Is there any "follow-up" after a matter has been intervened upon?

Independent First Nations Alliance iii Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum GENOWIN DISOMLN/GUNOWEN DISOMIN KEEPING OURSELVES

A Comparison of Justice in Four First Nations

The Submission of the Independent First Nations Alliance to the Royal Commission on Aboriginal Peoples

Appendix 4

JUSTICE CONCERNS OF THE INDEPENDENT FIRST NATIONS ALLIANCE

Presentation of the Independent First Nations Alliance to the Royal Commission on Aboriginal Peoples Big Trout Lake First Nation, December 3, 1992

iii Independent First Nations Alliance Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum t JUSTICE CONCERNS OF THE INDEPENDENT FIRST NATIONS ALLIANCE

The Presentation of the Independent First Nations Alliance to the Royal Commission on Aboriginal Peoples

Big Trout Lake First Nation, December 3, 1992

Presented by Garnet Angeconeb, Executive Co-ordinator Independent First Nations Alliance Sioux Lookout, Ontario

On behalf of the Independent First Nations Alliance, I would like to say a few words about justice. I do this in recognition of the expertise that both of you have in the area of justice. The First Nations which make up the Independent First Nations Alliance have been working on justice issues for many years. The Independent First Nations Alliance has since its inception been working towards a resolution of issues raised by the imposition of the Canadian Justice System on First Nations.

We have submitted a number of proposals to provincial and federal justice officials during the last four years. In 1989 and again in 1990 we were in Geneva to address the United Nations Working Group on Indigenous Populations on justice matters. Early this year when the Standing Committee on Aboriginal Affairs visited this community we took the opportunity to bring our concerns about the justice system to the Canadian Parliament. We strongly believe that we must retain self-government in matters of justice within our communities. And it is a fact that this matter is vital at this time.

Treaty was signed in this community only 60 years ago. As recently as 25 years ago there was little contact with the Canadian justice system. We policed ourselves - we maintained peace in our own communities. Less and less is that true, and, if we do not act swiftly and effectively to preserve and retain our traditional mechanisms of social control, we may succumb completely to the imposition of the Canadian justice system. We do not want that. Neither would it be good for our people.

We shall not make a complete argument about justice at this time. During this visit we want you to hear from our people. In these opening comments, we wish only to make some preliminary comments in relation to justice.

The four communities which make up the Independent First Nations Alliance are very different from each other. In size and degree of contact they vary greatly. In economy, they vary. While they are all Anishinaabe, There are significant differences amongst them. For example: Depending on how close they are to white society and how much they are able to

Independent First Nations Alliance i Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum rely on traditional economic activities, their needs in relation to justice vary from one another. Such differences impact upon the needs in relation to justice.

The Anglo-Canadian justice system is not ours, that hardly needs to be said. What must be said is that our needs can only be met by our own justice systems. When Canadian law attempts to deal with First Nations issues, the results are usually bad for the First Nations. This is because it is simply not designed for our realities.

At present, it is the criminal law and natural resources law which impacts most severely on our First Nations. We speak here of both federal and provincial laws. In respect to this body of law, the Canadian justice system assumes a world where there is a state populated by individuals. This is most clear in the area of criminal justice. A crime is an offence against the state. When an individual contravenes one of the provisions of the Criminal Code, the Canadian state sends in its police and processes the offender through its courts and hands down whatever punishment it deems appropriate.

In natural resources law, the state assumes that it owns the resources and that only it can effectively regulate the exploitation by individuals and corporations of the natural resources. The purpose of the state in the area of natural resources law, is to balance competing uses between the individuals who live in the state. As in criminal law, those who offend are charged, tried and punished.

Where are we in this scheme of things? We are not the Canadian state: Neither are we simply Canadian individuals. Our communities are not made up of a state and individuals. We are communities in the fullest sense of the word. We operate almost as a family where we all have obligations and rights. We do not have crimes so much as we have inappropriate behaviour. We do not punish: we seek to heal. And sharing is the basis of our land and resource use.

Our participation in the Canadian state is not as individuals. Our participation in the Canadian state is mediated through our own First Nations governments. We have never given up our right to self-government and we retain our institutions of government, including justice. All too often, Canadian criminal law and Canadian natural resources law ignores our unique constitutional status, and it ignores our law. I repeat, where are we in this scheme of things?

Our status as nations has frequently been recognized in Canada: It has been stated explicitly in the Royal Proclamation of 1763, and in the treaties we signed in 1873, 1875, and 1929. It was recognized implicitly in 1982 when our treaty and aboriginal rights were written into the Constitution. More recently, in 1991 Ontario and, this year in the Charlottetown Accord, all Canadian governments recognized our inherent right to self-government. Where is our nationhood in Canadian criminal and natural resources law?

We exist in Canada as First Nations. Our relations with Canada and with Canadians are made through our own First Nations governments. Each First Nation retains its right to self- government in justice and justice in each community must respond to local needs and local

Independent First Nations Alliance ii Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum culture. That inevitably means diversity in justice mechanisms. It means diversity in First Nations laws. That is what self-government in justice means.

By contrast, the Canadian justice system assumes homogeneity. That cannot work for us. Our communities are not the same as other Canadian communities and neither are our communities the same as each other. The justice systems of each of our communities naturally varies according to its own geography, economy and culture. Canadian society must recognize - indeed, must embrace that fact. We must have the right to the diversity which exists amongst First Nations across this land.

That is our message to you today. We ask you to explain to the Canadian governments and to the Canadian people that First Nations vary from one to another, and ask them to recognize that we need a similar diversity in our governmental institutions. Such diversity only recognizes the diversity which already exists.

If we are to have healthy and viable First Nations, we must have governance institutions which respond to the unique needs of each community. And that must include justice systems which respond to the unique needs of each community. That in turn inevitably means diversity amongst the justice mechanisms used by the First Nations. There is no threat in this to Canada or the Canadian justice system. We urge you to ask the Canadian government and the Canadian people to allow each First Nation to develop its own effective, responsive and appropriate self-government institutions, especially in the area of justice. It is in the best interests of the First Nations, and of all Canadians, that we be given the space to do so. It is also our right.

We shall, in the future, address the Commission in more detail on justice matters. For the present, we ask you to keep these thoughts in mind while you listen to our people and we thank you for coming into our midst to hear us.

Meegwetch

Independent First Nations Alliance iii Big Trout Lake, Lac Seul, Muskrat Dam, Pikangikum