Nunavut Justice Issues: An Annotated Bibliography

4.  Annotated Bibliography (continued)

Connors, Joan F.  “Resolving Disputes Locally in Rural Alaska”, in Mediation Quarterly Volume 10, no. 4, Summer 1993.

This analysis, based on a much larger research project, outlines some of the factors that contributed to the success of three very different forms of community-based dispute resolution in Alaska.  Although the environment is not the same as Nunavut and as a result many of the issues will be different, it highlights some of the initiatives going on, their characteristics and the factors that have contributed to their success. This piece addresses lessons learned, the relationship with the mainstream criminal justice system, and issues surrounding community mobilization and/or power dynamics.

General Overview

This article summarizes the findings of the Alaska Judicial Council’s evaluation of community-based dispute resolution models in Alaska.  The project involved the evaluation of three community-based, culturally appropriate organizations in rural Alaska that provided alternative means to addressing conflict in their community. The purpose of the evaluation was to conduct a neutral review that would benefit the local organizations, the state, non-governmental agencies, and other community organizations. 

There are over 100 Alaskan Native villages with active justice programs and initiatives in operation.  This article compares three communities and their local, culturally relevant dispute resolution organizations: The Minto Tribal Court (representing Athabascan Native groups), the Sitka Tribal Court (representing the Tlingit communities) and PACT, a conciliation organization in Barrow (representing the whole community of Barrow).

A variety of methods were used by the researchers in stating their conclusions and making their recommendations.  The evaluators had access to each of the organization’s case files as well as data from the state court files. They also conducted interviews with decision-makers in each organization, volunteers associated with the organization, state court judges and others who had knowledge and a relationship with the organization. The research was an example of ‘participatory research’. In other words, a final draft of the evaluation was reviewed by all of those who were interviewed for the study to check for accuracy and completeness in the description of the organization.

Underlying Themes/ Assumptions

Findings

Each initiative varied in a number of ways:

Variation in populations served by the initiative: For each initiative the ‘community’ and its interests were defined differently. For the Minto Tribal Court the community served is restricted geographically to those people who live in Minto.  The Sitka Tribal Court’s community is defined by tribal membership.  For PACT the community served is all of Barrow, Alaska.

Variation in the types of cases they handle: While PACT handles civil actions’ (simple civil matters) and community relationships and misunderstandings, the Minto and Sitka Tribal courts address local ordinances, criminal matters and family law matters. 

Variation in dispute resolution form and style: Although each initiative had the same goal (resolving the dispute) the philosophy that guided them, and in turn the styles that each initiative adopted, was different. In other words, each of the organizations desired the resolution of disputes and conflict at the community level to take place in a particular way and this influenced the form that they adopted.  In PACT the focus is on conciliation and the resolution of conflict within a neutral, panel process.  They focus on the disagreement as opposed to the legal aspects of the case.  As a result, their style is based on mutual problem solving, not upon the decision of one individual.  On the other hand, the Minto Tribal Court focuses on the incorporation of traditional Athabascan values into its dispute resolution style.  The Minto Tribal Court serves all the residents of Minto, described as a Native village, where the majority of the population is Athabascan Indian (97%). The Sitka Tribal Court on the other hand, applies traditional Tlingit law, written tribal law, as well as federal laws.  It is seen as harmonizing federal and traditional Tlingit law in both its processes and decisions.  The Sitka Tribal Court uses a judge to hear evidence, make decisions and generally preside over the court.  Mostly however, he or she acts as a mediator/negotiator between the conflicting parties.  Both Tribal Courts use the process of counseling the offenders about their roles and responsibilities within the community. 

Variation in their reliance on state agencies: Each organization varies in terms of their interactions with and dependence upon state agencies.   PACT has no direct interaction because of the fact that it handles extra-legal cases, cases that are not defined and regulated by a written statute.  As a result they do not rely on the police or courts for support or referrals. The Tribal Courts on the other hand, because of the types of cases they deal with (criminal, civil and family), have interactions on a number of levels.  Specifically, they rely on the police and courts for referrals and support.

The initiatives also had similarities:

Similarities:  The three community-based organizations share many things in common.  All three have the help of dedicated volunteers.  The cases they address have the voluntary participation of all the parties involved.  All three ensure confidentiality and record the proceedings to some extent.  They all try to ensure the equality of the participants through the physical structure and the focus on consensus decision-making.  Finally, they all exhibit some form of follow-up strategies.

Conclusions

Based on the evaluation of the three forms of community-based dispute resolution by the Alaska Judicial Council, the author argues that the following conditions play a large role in a developing a successful community-based initiative:

Reliance on volunteers: None of the initiatives/organizations had any outside funding.  Each organization relied on the individuals who were strongly committed to the ideas, goals and values of the initiative.  Although funding might help the organization, it seems that the dedication of those involved is more important.

Community support and acceptance: From the initial drafting of the goals of the organization to the decisions and sanctions imposed, each initiative has had the support of the communities it served.  Community participation was integral to the development of the Tribal Court in Minto, where every member of the village had the opportunity to assist in drafting the village ordinances that the court enforces.  Further, communities are aware of the organizations and they use them.

State and governmental agency support and acceptance: Each of the organizations has a formal or informal relationship with the State.  In these examples, the interactions with state agencies were beneficial and cooperative. The initiative requires a good working relationship with the outside, formal agencies if they are to have an effective referral system, one that both supplies enough referrals for the initiative to operate (issues of quantity) and that also refers cases that can be adequately addressed and resolved by the community (issues of quality).

Case selection/screening criteria:Each of the organizations has a clear understanding of the types of cases that they were able and willing to address. The criteria reflected their mandate, their dispute resolution style, the needs of the populations they served, and their own strengths and weaknesses.  They seemed to understand their abilities and what they could accomplish.

Recognition of particular dispute resolution style adopted.  Each organization believed strongly in the importance of resolving disputes in a particular way, and they recognized the importance of being aware of their own community-based dispute resolution style to achieve this.  For these three organizations the styles were based on conciliation (PACT), tradition (Minto), and equal participation (Sitka).

Cultural cohesiveness: These organizations exhibited varying degree of cultural cohesiveness, but that did not seem to affect the success of the organization.  What seemed more important was the high level of community support and commitment.

Crnkovich, Mary.  The Role of the Victim in the Criminal Justice System – Circle Sentencing in Inuit Communities.  Paper prepared for the Canadian Institute for the Administration of Justice Conference in Banff, Alberta, 1995.  Available from author and Pauktuutit.

 This is a companion to the other Crnkovich piece in this collection, where the author describes her observations regarding the first sentencing circle held in Nunavik.  That article provided the background information, mechanics and format of the circle, as well as the impact on the victim as a non-participant.  This piece explores the issues and concerns further, examining how such alternatives engage with and impact on Inuit communities and Inuit women victims of violence, extrapolating the issues and concerns about alternatives from the author’s experiences and observations.  It speaks to issues revolving around community dynamics and the Northern environment,

General Overview

This paper was presented to the Canadian Institute for the Administration of Justice Conference in 1995.  In it, Crnkovich examines the problems associated with the practice of circle sentencing as an alternative, community-based justice system in Inuit communities.  The paper is based on her shared experiences with Inuit women and her work on justice issues with Pauktuutit.  Specifically, the discussion is based on her observations of the operation of a sentencing circle in Nunavik.  In this paper she examines the issues and concerns that require serious attention before sentencing circles (and other alternatives) are adopted as a panacea for the problems associated with the existing criminal justice system.  She discusses the problematic issues that arise from using such terms as alternative dispute resolution, tradition and community-based initiatives, the role of power and power dynamics in the community, and the need for victims, especially female victims of violence and sexual assault, to have more support.

Underlying Themes

Findings

Inadequacy of the existing system: The existing system in the Northwest Territories, Northern Quebec and Labrador is inadequate.  The ineffective and small police presence, the absence of lawyers, courtrooms, and legal aid services or victims advocates, coupled with the circuit court system have all contributed to the over-representation of Inuit in the criminal justice system and the high rates of incarceration.

Circle sentencing as a solution: Judge Barry Stuart introduced circle sentencing in the Yukon to address the failings of the criminal justice system.  It is intended to address the over-representation of Inuit in correctional facilities. The objectives include encouraging active community involvement, focussing on rehabilitation and reconciliation as opposed to only punishment, a sharing of power between the formal system and the community, and the inclusion of traditional values into the process.  Crnkovich notes that there is variance among communities regarding how the circle operates and that oftentimes guidelines are lacking.

Assumption #sec1: Alternatives, such as circles, are a process that is rooted in Inuit culture: The author holds that sentencing circles do not represent a traditional Inuit practice that is now being revived. Instead, these alternatives are a process and form that has been introduced into First Nations and Inuit Aboriginal communities by the formal judiciary.  Traditional Inuit formal and informal social control mechanisms and dispute resolution tactics (grounded in non-interference and addressing the conflict in a way that would not create more conflict) took place in a physical environment that is very different than the one that exists now.  These tactics and responses took place within very different social interactions, representing the hierarchies that existed in the community that guided their responses.  Further, traditional Inuit communities had very different social disorders to address than those present today. As a result, the values underlying traditional Inuit culture would not be easily spotted or discovered in the alternative processes being proposed.

Assumption#2: Alternatives, such as sentencing circles, are community-based if the community is involved: Here, a distinction must be made between Inuit-based justice initiatives and community involvement in an alternative that is crafted by outsiders; a distinction that recognizes that community participation does not mean community control.  Crnkovich holds that this distinction is not adequately addressed and as a result these alternatives are touted as a form and process that the community has developed.  Instead, the community is simply involved in administering the goals and objectives of the larger formal system.  She states: Real change reflective of the goals and aspirations of Inuit will come only when the community members define what the change will be and control that change.

Assumption#3: Inuit communities are homogenous and share interests: This assumption leads to (1) a belief that there exists in Inuit communities shared values, traditions and beliefs, (2) that every member has equal participation in the community and how it operates, and (3) that the victim and the community are, in effect, one and the same.  These assumptions overlook power imbalances in the community and promote the myth that all participating will have equal access and opportunity within the circle.  Crnkovich dispels each of these assumptions, holding that complex relationships exist in Inuit communities.  Power dynamics and relationships within the community must be understood if circles are going to take place.  Who the accused is within the community, who the victim is within the community, and whether the community feels that it can freely participate are issues that need to be addressed, as they directly impact on the sanctions and sentences that a community may recommend.  If they are not examined that decision will often ignore the needs of the victim(s).

Assumption#sec4: Sentencing circles as an alternative to the formal system: The author holds that it must be understood that the sentencing circle is an alternative to the sentencing hearing only.  In many respects it relies on the existing system to operate and as a result it is questionable to what extent the initiatives represent an alternative processes.

Critical decisions and the abuse of power: The author holds that the operation of sentencing circles demands that a number of critical decisions be made; decisions about which case, if any, goes to the circle, what the factors are for this determination, how the circle is conducted, who participates, the role of the accused and the role and level of participation of the victim(s).  Care must be taken to ensure that the power to make these critical decisions are not transferred to the community in a way that results in an abuse of that power (i.e. by allowing a select few or an individual to make them at the expense of the community).

Conclusions

Exclusion of domestic violence and sexual assault: Sentencing circles, as they have operated, are completely ineffective for Inuit women victims of violence.  The limitations of alternatives (i.e. how they may operate to further victimize the victims of violence and sexual assault and how they may not ensure that the offender is held accountable) suggest to the author that these cases should not be dealt with by the (alternative) sentencing circle.  The result of not being adequately protected by the circle, an often used alternative, will mean that even fewer women will be reporting the violence they are subjected to.  A greater awareness of domestic violence, a recognition of the power dynamics within the community so that the victim can fully participate, and adequate support for the victim are pre-requisites to having community-level alternatives address these types of cases.

Vital role of an infrastructure to support community-level alternatives: Safeguards and infrastructural supports must be a part of alternatives to protect the needs and interests of the victim: Alternatives are not welcome in communities if the necessary infrastructure, support services, and resources needed for these alternatives to operate are not also provided (Pauktuutit).  Such things needed include public legal education on alternatives (its goals, objectives, form and process), paid administration to operate the alternative approach, support and advocacy workers for women and children who are victims of violence, male batterer counselling programs, social worker and addiction counsellors.  Without these services and supports, the credibility and accessibility of any alternative is called into question.

Problematic nature of relying on volunteers: The author holds that alternatives must not rely upon volunteers for a number of reasons.  Depending upon volunteers makes the alternative vulnerable and its future always unreliable.  If (only) volunteers are relied upon, there will be a high level of variance between levels of service between communities in the North.  This is unacceptable and as a result, the community should have paid community service workers. 

A coordinated and comprehensive approach is necessary: Making change at the level of criminal justice system is certainly an important area that requires attention: making the justice system more responsive to the needs of the community is one part of a coordinated approach.  However, it is not, on its own, a panacea to the problems that Inuit communities experience vis-a-vis justice.

The community needs to be defined: The term community needs to be defined by the community members in a way that neither excludes relevant parties within the community nor those individuals and organizations that, although not physically located within the community, can provide support.  

Community-based needs to be understood and defined: The difference between community involvement in a process that was developed and designed outside of the community must be distinguished from the development of Inuit-based justice initiatives and models that represent that particular communities’ goals and objectives.  

Establishment of guidelines for (alternative) sentencing circle: Guidelines about how circles will operate as well as by whom must be established.  Questions about case selection (which cases will or will not be addressed in a circle and how will that decision be made?), protections from abuses of power (how will it be ensured that the power to make these decisions is not being abused?), require serious attention and standards must be developed.  While this may appear rigid, it in fact is not, since it is the community that establishes the guidelines.

Power relationships and dynamics: The intricate links and networks that give rise to power dynamics in Inuit communities must not be allowed to play out in alternative justice initiatives.  The author suggests that this problem may be adequately addressed by establishing an effective selection process, one that incorporates the power dynamics when determining who will participate in the initiative.