Where the cars have no plates

The (now defunct) Law Commission of Canada's Report on Aboriginal Peoples and Criminal Justice was delivered to the Federal Justice Minister in 1991. This document, an effort by dozens of academics, jurists, and indigenous leaders to grapple with the obvious injustices of the Canadian system's interaction with Native peoples, is rife with alarming statistics and hopeful proposals. The commissioners were able to state plainly, with conviction that for meaningful justice to re-manifest in Native lives and communities, there was simply no other way: "The time has come to co-operate in the creation of Aboriginal-controlled systems of justice...". The time has come. 1991.

And so here I am, reading these well-meant, well-thought, nigh-well urgent appeals for a country to sit up and take notice of its complicity in the systemic degradation of the individual, communal, and national rights of Native peoples to own and understand that most crucial, ephemeral, palpable human concept: justice. And here I am, still participating in a justice system that "delivers" itself into communities that, at best, endure its intrusion, withstand its ignorance. In so many ways, we assumed we knew what was best for the cultures we enclosed, and in so many ways we were wrong. The evidence, if we can bear to admit it, is obvious. The question, at least in relation to justice issues, is why we persist in such arrogant error.

I think I'll spend my life with this challenge, although hopefully towards a dissolution of our arrogance, a de-coupling of our (yes, still) colonial need to control and monopolise the concepts of governance. But as the 1991 commissioners now know, and I'm uncomfortably learning, even good ideas are pretty cheap currency if we don't spend our best selves upon them. That's why I feel such a feverish need to tell these small stories, from this frontier, for they echo the truth to a country that for the most part still neglects to listen, until the most egregious tragedies force a moment of notice, and, all too often, fallow, unfortunate finger-pointing.

We’ve thusfar only given credence to appeals to formal equality in our justice system’s evolution. Thus, all Aboriginals are presumptively entitled to our laws, our rights, our ideas about how to take the necessary steps from allegation to outcome in justice matters. We’ve constructed elaborate and expensive mechanisms to bring the institution closer to (by our eyes) remote communities, the places where our roads don’t go. And yet, for all our single-minded efforts, it’s mighty hard to sense that progress has been made.

The northern reserves, at their worst, are unfenced gulags, composites of nowhere. Who wants to live in an immovable trailer with a dirty water tank lurking in its biggest room and a dozen relatives interminably crashing in the others, even if it is "free"? Who wants to boil their drinking water every day for nine years, disguise the leaden taste with grape Kool-Aid? Who wants to die too young of violence or diabetes? Who wants their most important decisions to be mandated or mediated by utter outsiders, folks who flit in and out like bossy fairies? The answers to these questions, at least, seem clear. And we must try and feel the truth of one another, or die. But I admit of very few other certainties.

the cutting edge

What Tom meant, I think, was that his community – and the individuals within it – have little control over how justice ‘works’ for them. A couple of planeloads of lawyers and court staff fly in every month or two, spend the day in a re-arranged community hall, and make decisions about who’s guilty of what crime, whose case can’t be heard yet, who goes to jail, who stays behind. How are these decisions made? Tom perceived – correctly, for the most part – outsiders meeting in private, strange doctrines debated, facts bartered and bargained for, shortcuts taken. All this happens (I know, because I’m one of the outsiders) according to quite a well-developed legal, logical and ethical framework – ours is a system that’s evolved in tinkers and increments over several centuries. As long as everyone plays their roles properly, the majestic mechanism of the law is maintained. So why do both Tom and I sense that it’s all so wrong?

I believe that the problem lies in the enduring ‘outsider’ nature of the work we’re trying to do. Here’s an example: I have a trial tomorrow, in a community about 700 kms north-west of Thunder Bay. I’ve never met my client, or even spoken to him – we don’t even share a language. All I have is an inch-thick folder detailing some heinous offence he supposedly committed, and the clues to a deeper tragedy buried within it, words like “sniffer” and “seven months pregnant”. Setting matters down for trial is a strategic business in northern reserves. Even if you are inadequately prepared, entirely unconvinced, or horrendously incompetent, chances are that Crown witnesses won’t show up, and the case will collapse. Hooray, a victory for the defence. But why does this happen with such shameful frequency? Again, I believe it’s because we are outsiders, and, as professional as we may be, we really don’t know what we’re doing when it comes to helping justice manifest in Tom’s community, and the few dozen others we pretend to serve.

Holes that make the net

Last week I started working as a lawyer again, this time with a couple of senior counsel known around Thunder Bay as the “left wing fringe”. Mostly criminal defence, plus Aboriginal Rights litigation. I’m half in the office working on appeal arguments, and half in tiny planes and tiny towns trying to make some kind of positive difference in the lives of people clutched up by the overgrown fingernails of the Canadian justice system. It may be One World, One Dream, but it’s hard to believe that the One Law, One Society rhetoric is working for the smaller places and nations our country encompasses. Already I’m struck by how little I’ll be able to accomplish, at such great cost.

Pickle Lake bills itself, on the wonky wooden sign on the highway into town, as Ontario’s Last Frontier. This description is accurate insofar as it’s the furthest-most point most people would want to drive in the province, before the road sinks into dust and muskeg, permitting only frozen-season forays further north. Other than that, the slogan is merely another of the many signals that we don’t understand the full reality of life here. Ontario’s last frontier – and far beyond – also happens to be the centre of the universe for the Ojibway and Cree nations whose communities dot the trackless map of the north-west interior.

Mishkeegogamang, also known as New Osnaburg, or Oz, sits about twenty minutes south of Pickle Lake, its reserve broken in half by a government surveyor’s 1911 decision to exclude a resource-rich island from the community’s scant treaty settlement. They’ve spent the past several years – and about seven million dollars – trying to convince the Crown to give it back. “We’ve read the Land Commission documents,” my tour guide grumbles as we drive up to the gravesites that aren’t theirs anymore, “they told ‘em not to give the Indians any lands which might have wealth”. Tom Wassaykeesic is one of the five band councillors here, interrupted in the middle of serving his grandkids lunch by the local probation officer with two curious lawyers who want to have a look around. Fifteen minutes later he finds us at the Nashnawbe-Aski police station (basically a mobile home with a cell-block stuck to the side), honking his horn to announce his engagement as our chauffeur. There's to be quite a lot of honking over the next two and a half hours, Tom’s way of greeting folks sitting on their porches or wandering by on the washboard roads. We pass several cousins and a brother while he points out a few of the highs and lows of Mishkeegogamang’s situation.

Some things hardly need to be said, just somehow understood. The main reserve is scattered with a few two-storey vinyl-sided home (“we built ‘em when there was money for that thing”), but otherwise people live in long narrow trailers beached on concrete pads. Many of the small windows on these overloaded homes were broken. Tom speaks bluntly: “drunks, they’re the ones who just break the windows like that. Got no accountability. All the band money is going to fix them things. Some people don’t care.” He points at a couple of places where houses should have been. “That one got burned down. They had a fight, those people, so they burned it right down. And that one we just use for a basketball court.” It was the only paved spot visible, at least until we continue past Bottle Hill along Sandy Road and catch sight of the beautiful school, a multicoloured four-winged bird perched proudly at the edge of the Albany river. Tom's obviously just as proud, and leads us out to skirt the perimeter, peering in through blessedly unbroken windows at the section reserved for the youngest kids, the classes for grades 3 through 10, the soaring central space where hot lunches are served and children can sit in a great steel-and-pine tepee beneath flags and old photos commemorating the signing of Treaty 9. The place breathes a sense of what kept promises (and enough money) can accomplish.

Finally, after introducing us to the guy spinning Christian country classics on the community radio station, showing us where the bones of ancestors sometimes wash up, and indicating Mish’s mandatory relocations over the past century because of the lake’s hydro-induced flooding, Tom drops us back off in front of the police trailer. Along the way, I get a chance to ask him, especially since he’s the councillor in charge of justice issues for the band, what he thinks about the court that flops down in Pickle Lake every month or so. “Never go to them things anymore,” he spits with disgust, “they already have everything all figured out even before we ever get there.”