Recently, the Government of Canada, under Prime Minister Justin Trudeau’s wing, enacted several Indigenous-specific statutes in policy sectors such as languages, child welfare, and legislation to domesticate the international human rights instrument in the United Nations Declaration on the Rights of Indigenous Peoples Act. In light of this new wave of federal statutory changes, this article considers the correlations between Indigenous criminal justice and population health.

The correlations become clear when it is considered that there is a significant overrepresentation of Indigenous prisoners as compared to the rest of the Canadian population; and this cannot be considered a healthy social dynamic or status quo. Rather, it can be seen as a symptom of past discriminatory challenges playing out among the social dynamic of the Indigenous population, which is still recovering from harmful systemic and racial discrimination. In fact, Canada’s Gladue sentencing principles reflect this consideration.

According to Carly Teillet, a Métis lawyer: “Altering Canadian laws to uphold inherent rights set out in UNDRIP is two pronged; it needs to be at its core about state recognition, respect, and resources for self-determination of Indigenous Nations, choice for Indigenous individuals AND undoing structural racism and ongoing colonial policies. What many think of as Gladue factors are colonial state created conditions such as poverty, disrupted families, poor housing, unsafe drinking water, intergenerational trauma etc. that assure ongoing state interventions, including criminalization.”

In the child welfare sector, recent legislative changes were made that guide provinces and territories around Indigenous jurisdictional overlap. This complicated dynamic is newly being explored and clarified within federal-level legislation rather than just left to policies. After years of distrust among Indigenous peoples toward the Canadian government due to the harmful exercise of authority discretion and now illegal racist policies within the Indian Act, it is a brave move for Indigenous peoples to now shape new legislation with the federal government.

Ontario is one example of how the new legislative dynamics work between the provincial and federal child welfare legislation. Both the provincial Child, Youth and Family Services Act, 2017 and the federal statute, An Act respecting First Nations, Inuit and Métis children, youth and families, enacted in 2020, regulates child welfare. Section 9(2) of the federal Act includes a “cultural continuity” principle clarifying that Indigenous children’s best interests includes their Indigenous identity. This federal rule guides provincial child welfare nationally. This consideration may improve the health of the Indigenous child population within the child welfare system by promoting Indigenous identity.

Indigenous peoples have many strengths, are savvy negotiators and businesspeople within the economy, are Inherent, Aboriginal and Treaty Rights-holders, and have beautiful cultures that they share in stories and ceremonies; and yet, Indigenous peoples are still recovering from past assimilationist policies. On June 21, 2021, the United Nations Declaration on the Rights of Indigenous Peoples Act came into force domesticating international Indigenous rights declarations into binding Canadian law. This Act must guide all other statutes in Canada and is currently being implemented so that there is alignment and an overall reversal of systemic discrimination integrated within all other existing and future laws.

Teillet’s two-pronged approach, lends well to conceptualizing these changes within the context of interconnected legislative relationships, complex intergenerational and ongoing experiences of state created inequality as well as overall autonomy and Indigenous population health.