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With inflated proportions of their neighbours in prison, on parole or at risk, the world's native communities have another urgent problem to contend with. Statistics show that the percentage of indigenous people in conflict with the justice system is extreme and in many places those numbers may be on the rise.


In Canada, the issue has come under intense scrutiny in recent years. According to the Canadian Centre for Justice Statistics, aboriginals make up about 19 per cent of federal prisoners, while their number among the general population is only about 3 per cent. Between 1997 and 2000, they were ten times more likely to be accused of homicide than non-aboriginal people. The rate of natives in Canadian prisons climbed 22 per cent between 1996 and 2004, while the general prison population dropped 12 per cent. In similar societies, discrepancies are equally glaring.


While the numbers speak volumes, they remain the visible tip of the iceberg. "We're dealing with the generational effects of colonization", said Beverly Jacobs, President of the Native Women's Association of Canada. "It has a very specific impact on an individual." She has found that generations of poverty, abuse and stigma have had a tremendous effect on native communities, often leading to crime. Ed McIsaac, Executive Director of the Office of the Correctional Investigator of Canada, agreed. "We've got a social and economic situation that impact on education, health and employment. These are variables that bring people into conflict with the justice system", he said.


Few refute the fact that aboriginal involvement in crime is proportionally higher than that of non-natives in places such as Canada. However, some believe that apart from deep-rooted stigma and social ills, outright discrimination by police and courts also exists. In fact, according to the Correctional Investigator-an appointed official who acts as an ombudsman for Canada's federal corrections-certain forms of systemic discrimination do exist in the justice system, Mr. McIsaac noted. What complicates the matter is that discrimination, by definition of the Ãå±±½ûµØHuman Rights Council, does not necessarily have to be deliberate. This means that ingrained misconceptions about natives, no matter how subtle, can be considered discriminatory when acted upon by police officers or judges. For indigenous people accused of crimes, this can mean unintentional racial profiling. For those incarcerated, it often takes the form of tighter security, lack of parole opportunities and the cycle of problems that long periods away from home and family can create. Thornier yet is the question of how to adapt official policies to the reality of aboriginal life. "[Discrimination] usually results from seemingly neutral policies", Mr. McIsaac explained.


Ms. Jacobs, in her work with native women, illustrates this problem, saying that the vast majority of incarcerated aboriginal women, who make up a staggering 30 per cent of female prisoners in Canada, are locked up for addiction-related crimes or for self-defense in a situation of domestic violence. Considering the high incidence of abuse in native homes and the prevalence of drugs and alcohol in their communities, it is often difficult to take a hard-lined position on those crimes. As Governments begin to take more action to support indigenous peoples, many are grappling with this paradox. A difficult balancing act exists between the need to respond to the particular history of aboriginals and the need to deter crime in all communities, regardless of their background.
In Canada, recent debate on the matter was sparked by a 2005 United Nations review of the country's compliance with the International Covenant on Civil and Political Rights. In October 2005, the Human Rights Committee noted failures in the treaty's implementation and asked Canada to establish procedures for reversing human rights violations, especially against aboriginals. It urged the Government to address violence and discrimination against aboriginal women and voiced its concern about the state of women prisoners in the country, especially those of aboriginal backgrounds.


The Committee on the Elimination of Racial Discrimination (CERD), in its annual report to the General Assembly, echoed some of these concerns when it issued a 2005 general recommendation on racial discrimination and administration of justice. It noted that the proportionately higher crime rates attributed to particular groups, especially petty street crime and offenses related to drugs and prostitution, were often a sign of social exclusion. It asked States to eliminate laws that had an impact in terms of racial discrimination and to develop sensitivity programmes and training for its justice officials.


States that are parties to the International Convention on the Elimination of All Forms of Racial Discrimination must uphold certain human rights standards. Under the treaty, groups and individuals can bring complaints before the Committee. CERD Secretary Nathalie Prouvez said that the clause is one of the Committee's best attempts to hold States accountable to the treaty. Groups or individuals "can find a remedy at the international level if they haven't received one at the domestic level", she said. But this is only true if a State has ratified the treaty and many, including Canada, have yet to do so.Nonetheless, Canada has had its own programmes geared toward restoring vitality among indigenous communities. Efforts have centred on the idea that aboriginals need the care and protection of their own people in order to be safe from legal discrimination. Innovative crime prevention, policing and corrections initiatives began in Canada as early as 1992, when the First Nations Policing Policy (FNPP) was established. Under this system, the Federal Government, local government and an aboriginal nation work together to police tribal land. In order to ensure that policing in native communities is representative of the population it serves, officers, police boards and commissions are largely staffed by natives. Apart from agreed cases of exception, all police officers must be people of First Nations descent.


FNPP programmes currently exist in eight provinces, with 33 community policing agreements in Saskatchewan alone. The Canadian Government has also established the Royal Commission on Aboriginal People and the National Aboriginal Advisory Committee, and runs a First Nations organized crime initiative. Mr. McIsaac said that community elders had been present at federal parole hearings for aboriginal men and women, and it is common to see "healing circles" used in the parole process. Furthermore, since the country's Supreme Court dismissed the murder charge of an indigenous woman acting in self-defense (R. v. Gladue, 1999), Canadian courts now take into account the "systemic or background factors" associated with indigenous communities when trying and sentencing defendants.


Many experts remain concerned that natives on probation for crimes must leave their homes to get the social services they require. Ms. Jacobs noted that forcing aboriginal women to leave their children behind might lead to further lack of support and more crime or violence. But Canada may be seeing changes in this arena as well. In a groundbreaking agreement in 2005, Manitoba's provincial government transferred all probation and community corrections services over to native organizations. Such an agreement means that natives on probation can be supervised by their own community members and remain close to their families.


The Federation of Saskatchewan Indian Nations (FSIN), a confederacy of 74 First Nations, has taken the lead in the province's self-run native programmes. In 2007, its pilot First Nations Youth and Restorative Healing Project targeted teens at risk in two First Nations communities, filling their free time with cultural activities, traditional practices and communication with peers. The project's activities included the "Adopt an Elder" programme, in which young people were paired with community elders. FSIN has also recently added a Youth Council for Just Relations to its advisory boards.


Despite efforts by native groups and Canadian officials, Mr. McIsaac noted that the statistical gap between incarcerated natives and non-natives has yet to narrow; in fact, studies show that it may widen before long. Discrimination and crime are long-term problems, he said, "and we have no magic solutions". He also thinks that gaps in education, employment and social services need to be addressed before other changes can happen. Ms. Jacobs believes that the crisis continues because so many prevention, policing and corrections policies, even those working in conjunction with native communities, are still based on government models. First Nations rely on the Government for funding, so they cannot completely break ranks with those models yet. "Communities are working toward developing our own systems of justice", she said. In the meantime, basic education about aboriginals in mainstream Canadian schools could go a long way towards eradicating discrimination. "Racism is just a lack of education", Ms. Jacobs believes, and that most Canadians "have no idea" about what the natives in neighbouring communities have been through.


With its roots in social and economic problems that span centuries, legal discrimination against indigenous communities is a daunting problem and requires innovative solutions and international support. But while the problem is anything but simple, many native groups have proven that they're ready for the challenge of finding a lasting solution.