Overincarceration of Indigenous peoples nothing short of genocide
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Canada’s colonial objectives have always been to clear the lands for settlement and development by whatever means necessary.
After signing peace treaties in the 1700s, clearing the lands meant laws offering bounties on the heads of Mi’kmaw men, women and children. In the 1800s, clearing the lands meant ethnic cleansing on the Prairies - laws, policies and practices that confined native peoples to reserves
and gave them insufficient rations to survive. In the 1900s, clearing the lands meant the theft of thousands of native children to be forced into residential schools where thousands died from abuse, torture and starvation. In the 2000s clearing the lands means the mass incarceration of Indigenous peoples in prisons paving the way for the extractive industry.
The overincarceration of Indigenous peoples in federal, provincial and territorial prisons in Canada today is nothing short of genocide.
On Jan. 21, 2020, Dr. Ivan Zinger, who heads the Office of the Correctional Investigator, issued an urgent statement about the rates of Indigenous peoples in federal prisons being at historic highs. While Indigenous peoples only make up five per cent of the Canadian population, they represent more than 30 per cent of those in federal prisons. Those statistics are even worse for Indigenous women who now make up 42 per cent of the prison population. A Statistics Canada report released in 2018 shows that almost half of all youth in corrections are Indigenous as well. This is all happening at a time when incarceration rates for the rest of Canada continue to decline. Why is this happening? Zinger states that federal corrections is “impervious to change” - a well-founded conclusion given the decades of commissions, inquiries and reports highlighting both racism in the justice system and the devastating impact it has on Indigenous peoples.
In 1989, Chief Justice Thomas Hickman issued the final report of the Royal Commission on the Donald Marshall, Jr., Prosecution (Marshall Inquiry). Donald Marshall was a Mi’kmaw man from Nova Scotia who had been wrongly targeted by police and convicted of murder, spending 11 years in prison. The Marshall Inquiry found that the criminal justice system had failed Marshall “at virtually every turn” due “to the fact that Donald Marshall Jr., is a Native.” The report provided numerous recommendations to ensure more equitable treatment of native peoples in the future.
A decade later, the Aboriginal Justice Inquiry of Manitoba released its report in relation to the
murder of Helen Betty Osborne whose assailants had not been brought to justice; and John Joseph Harper, an unarmed native politician shot dead by Winnipeg police. Murray Sinclair, co-commissioner for the justice inquiry and chair of the Truth and Reconciliation Commission, made similar findings to the Marshall Inquiry: “[t]he justice system has failed Manitoba’s Aboriginal people on a massive scale.” His report also made numerous recommendations in relation to addressing racism and discrimination against Indigenous peoples in the justice system and beyond.
In 2004, the Saskatchewan Commission on First Nations and Metis Peoples and Justice Reform found that racism was a major issue in police forces in their dealings with native peoples. This came on the heels of the Commission of Inquiry into Matters Relating to the Death of Neil Stonechild, also in 2004. This was an inquiry that investigated “Starlight Tours,” the arbitrary detention of native peoples by police who are driven out of town to freeze to death at night. Both reports offered recommendations, but like the other reports, most were largely ignored.
In 2007 came the Ipperwash Inquiry in Ontario and most recently, in 2019 came the Final Report of the National Inquiry into Murdered and Missing Indigenous Women and Girls, which found Canada guilty of both historic and ongoing genocide. Racism in the justice system is a common theme in all of these reports and the Office of the Correctional Investigator has been raising the alarm for the overincarceration of Indigenous people for two decades.
The statistics clearly show a steady rise in Indigenous incarceration from 17.5 per cent in 2000 to 30 per cent in 2020. But these represent the national statistics and, like rates of murdered and missing Indigenous women and girls, and Indigenous children in foster care, the provincial rates can be double the national rates.
In Manitoba, more than 80 per cent of prisoners are Indigenous — the same province where 50 per cent of all women murdered and missing are Indigenous and 90 per cent of all children in foster care are Indigenous. In Saskatchewan, 76 per cent of prisoners were Indigenous, the same province which has more than 55 per cent of women murdered and missing as Indigenous and 85 per cent of children in foster care are Indigenous. We also know that more than two-thirds of Indigenous prisoners have been impacted by the foster care system. This is exactly the kind of colonial legacy that the Supreme Court of Canada in R. v. Gladue  1 S.C.R. 688 and R. v. Ipeelee 2012 SCC 13 cases meant to address when they instructed judges to find alternatives to prison for Indigenous peoples. Is no one listening?
From the evidence, it is clear we have a direct pipeline from foster care to prison that seems to clear the way for pipelines on native territories. What the statistics don’t show is the history of thenRCMP and other police forces as an integral part of colonial settlement and development policies that have created this current crisis.
From the RCMP’s Project Sitka to its massive military-style operation on Wet’suwet’en territory right now, native lands continue to be cleared by Canada’s laws, policies, practices, actions and omissions. The overincarceration rates will continue to increase unless we address these genocidal policies once and for all.
While I agree with Zinger’s call for “bold and urgent action,” cultural programming and Indigenizing the prison will not get us there. We must confront racism against Indigenous peoples head on and prevent incarceration in the first place. This means addressing racism in federal and provincial laws and policies, as well as rampant racism in policing. In the meantime, we must begin the urgent process of decarceration for Indigenous women and children; Indigenous peoples with mental health issues; and Indigenous men languishing in prisons for little more than navigating poverty.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc on January 30, 2020. https://www.thelawyersdaily.ca/articles/17658