All Western societies with a democratic system have long had the access to justice enshrined in their constitutions. In our view, a justice system that is fair, understandable, impartial and guarantees and protects the rights of every citizen is a fundamental right. However, how can equal access to the judicial system be guaranteed in a State with a heavy colonizing past for Indigenous populations whose cultures are still very much alive and whose modes of social regulation remain elementary different from those of the State which enacts the laws? How to bring together two cultures with opposing legal traditions around a subject as complex as the law?
This is the challenge that lawyer Eve Laoun regularly faces. Practicing in Montreal and specialized in Indigenous rights, Mrs. Laoun defends her First Nations and Inuit clients, especially in cases related to youth protection services, while working as a consultant for various organizations, such as the Makivik Corporation, the Regroupement des centres d’amitié autochtones du Québec (RCAAQ) and various Indigenous organizations in urban areas. With the desire to counter systemic barriers to access to justice for Indigenous people and enhance their legal traditions.
Since 2019, one week a month, Mrs. Laoun has been visiting Nunavik, a territory of 507,000 km2, populated by nearly 14,000 inhabitants comprising fourteen communities, some of which are very isolated geographically. Difficult to establish a centralized court there under these conditions.
“There are a lot of interesting things to say about the way the justice system works in Nunavik because, for many Inuit, this system remains foreign, difficult to grasp and far away from their own visions of justice”, remarks Mrs. Laoun. “There is a southern-based court traveling to Nunavik. The whole structure, including the lawyers representing the Inuit, is non-Inuit. It is an itinerant structure.”
An itinerant legal system
In 1975, the James Bay and Northern Quebec Agreement was signed between the Cree and Inuit peoples with Quebec and Canada. This treaty provided that the Inuit cede part of their rights over their territory in order to allow its exploitation, in particular by Hydro-Québec, a State corporation responsible for the production, transport and distribution of electricity in Canada.
In exchange for this territorial cession, the agreement provided a set of rights, services and royalties in a perspective of self-governance. The implementation of the Itinerant Court was part of the services negotiated in the agreement. In reality, however, it is difficult to respond adequately to the needs and the complexity of the social realities of the territory.
This itinerant structure will quickly cause many problems. The system is in fact poorly adapted to Inuit’s needs, who, moreover, simply do not understand it. It also maintains a phenomenon of over-judicialization while being extremely slow; it can take months between the offense and the judgment: “From the moment charges are laid against a person by the Directeur des poursuites criminelles et pénales (DPCP), the treatment will already take several weeks going through the different stages. Even when a trial is set, additional delays very often occur for various reasons such as a plane that could not land in the small community concerned, blizzards, too many files to deal with on the week’s schedule, or the accused who doesn’t appear.” A system therefore poorly suited to Inuit traditions and their conception of justice.
Different legal traditions
Historically, for the Inuit, problems had to be solved quickly. Traditionally nomadic, they couldn’t afford to face conflicts for months. The urgency was to restore harmony in the community in order to collectively ensure its survival. Canadian criminal law, and its structural limits mentioned above, are not in line with Inuit conflict resolution methods.
Indeed, Western criminal law systems are often associated with the notion of punishment, and are based on the isolation of the person considered as a threat to society’s balance and safety. For the Inuit, the punitive aspect of justice is supplanted by the notion of reparation. Most of the time, it’s about restoring the balance within a community which must continue to live together. Also, it seems more essential to make the individual responsible for a behavior and get to repair the fault rather than punishing.
This vision of justice remains predominant within Inuit communities and therefore can be in contradiction with the Quebec legal system, which poses a problem in attempt to resolve conflicts: “For an Inuk, serving a detention sentence in the South, far from his / her community, it’s not meaningful, especially in a context where the services available there are not always adapted to his reality. Consequently, when he /she returns to the community, the latter may not necessarily have taken the healing path necessary for positive social reintegration,” observes Mrs. Laoun.
These notions of community support, accountability, reparation and identity reconnection, associated with the ways in which the Inuit approach healing, contradict the Canadian system rather based on the presumption of innocence, punishment and isolation of the condemned.
Similar issues may arise when it comes to youth protection servicess.
One of the problems experienced in the application of Quebec Law in youth protection is how to approach the notion of confidentiality. While the protection of information related to the situation of a child referred to social services is fundamental in the law, this often represents a difficulty in the Inuit context. Indeed, when there is a problem in an Inuit family, it is common to involve the extended family or even the whole community members. The concept of nuclear family does not have the same value and problems are solved by discussing them collectively.
Colonialism’s aftermath
Another major difficulty: Canada’s colonial past, the consequences of which still persist today in a glaring way: “There were appalling, even genocidal policies that were put in place, including in Nunavik”, deplores Mrs. Laoun. “Indigenous people were extremely affected in Canada. It is obvious that there is a discrimination against them which persists today.”
In 2015, the Val d’Or scandal shed a harsh light on this reality. The case began when several Indigenous women from this city of 32,000 inhabitants, located in western Quebec, denounced the abuse and sexual violences they allegedly suffered from local police officers. The testimonials are staggering and deeply shocked the Quebec population. Eight police officers were suspended and an investigation, led by the Directeur des poursuites criminelles et pénales (DPCP), was launched. Despite some forty complaints, no prosecution was initiated, for lack of evidence. Indigenous women felt betrayed and humiliated. The community called for a new investigation. It is in this context that the Viens Commission was set up.
Led by retired judge Jacques Viens, the Commission’s aims were to investigate the Val d’Or scandal and more generally the question of the link between the Indigenous populations and basic public services, such as police and judicial services, correctional services, health services and social services and youth protection.
After collecting and analyzing a thousand testimonies, the commission delivers an edifying report. There is a systemic discrimination towards First Nations and Inuit in their relations with public services.
One glaring example among others illustrates these inequalities: 28% of people incarcerated in the country are indigenous, while they represent barely 5% of the population…
The Viens Commission has delivered 142 recommendations calling on the government to take measures to ensure real and safe access to public services for Indigenous populations and reduce systemic discrimination.
Between exceptions and projects
In this context, it is therefore difficult for a lawyer to manage to create a bond of trust with Inuit clients, who are wary of these women and men of law representing a legal system that does not speak to them and discriminates them.
However, the lawyer-client’s relationship of trust is essential for the profession: “It is true that the bond of trust is difficult to create. The recent colonization of the Inuit and the geographical isolation do not help. Interactions with non-Inuit are less frequent than in other regions of Quebec, especially in the northernmost villages. Without forgetting the important cultural and linguistic barriers. Lawyers are generally poorly perceived. Personally, I prefer to stay humble. I do not present myself as a savior but rather as an ally who, without necessarily adhering to it, understands the legal system and is there to carry their voice. I don’t have a rainbow type vision of things and I let them choose whether or not to work with me.”
Despite these obstacles, trust is often established, as with this client that Mrs. Laoun had defended in a child placement case and who, to thank her, had offered her a pair of handmade sealskin gloves. A symbolic gesture that marks a feeling of recognition.
Even if Canadian law seems to be in contradiction with the Inuit vision of the judicial system, there are however some adjustments in Quebec law: “The Youth Protection Act, for example, offers loopholes that allow the recognition of certain Inuit norms that represent exceptions to the application of Canadian law”, points Mrs. Laoun. “I refer to that a lot. We are in a state of legal pluralism; we must not forget that basically Quebec law comes from a mixture of French and Anglo-Saxon laws. If these spaces in the law allow a certain adaptation of the law to Indigenous realities, the solution nevertheless rests on the recognition of the autonomy of the Indigenous peoples, who are best placed to intervene and support their families in difficulty.”
In this sense, the taking over, by the Inuit themselves, of their own youth protection intervention system represents a promising path, like the Nunavimmi Ilagiit Papatauvinga (NIP) project. This organization aims to set up an Inuit youth protection structure, based on a local vision of problems and solutions. The association is still at an early stage and encounters several obstacles.
Indeed, the lack of resources is enormous in Nunavik, whether in terms of infrastructure or personnel, and recent colonialism has strongly affected the social structures of these populations. The process of building dialogue is difficult and will certainly take a long time despite an obvious desire to achieve self-determination.
With a university background in Social Sciences, Mirjana Binggeli has always been fascinated by people, their different cultures and their ways of life, with a main focus on contemporary issues.
Preferring the cold climates to the warm countries, she has travelled northern Europe and Finnish Lapland where she caught the polar virus. After a trip in Svalbard and in Greenland, she became an expedition guide onboard vessels in the Arctic and Antarctic.
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