Introduction

The ability of First Nations to enforce their laws and by-laws^[1] on their lands is key to self‑determination and self-government. However, many communities face barriers in having their laws and by-laws enforced. To explore this issue, the House of Commons Standing Committee on Indigenous and Northern Affairs (the committee) adopted the following motion on 29 April 2021:

That, pursuant to Standing Order 108(2), the committee undertake a study on enforcement on First Nations reserves as an essential component to their self government and self-determination, with regard to: (a) jurisdiction, enforcement and prosecution; (b) targeted funding for enforcement; (c) the First Nations Land Management Act; (d) First Nations debt certificate processing; (e) the prosecution of First Nations violation tickets; (f) enforcement agreements with policing agents; (g) enforcement capacity development; that the study consist of witness testimony from First Nations, stakeholder groups and departmental officials; and that the committee report its findings to the House.^[2]

The committee held five meetings on this study, hearing from First Nations leaders, law enforcement, legal experts and relevant federal departments. The committee also received briefs that contributed to its understanding of the issue. The committee is grateful to all those who took the time to share their experiences in the hopes of moving this issue forward.

This report first provides an overview of First Nations law-making authority. Next, it explains the roles of federal departments and First Nations policing as well as the role of provinces and territories. It then highlights ways in which First Nations are addressing justice and enforcement issues on their lands, including through restorative justice, and describes some of the positive relationships that have been cultivated between law enforcement and First Nations communities. Next, it describes the challenges First Nations face in having their laws and by-laws enforced.

The committee acknowledges that this is a complex issue, and that identifying the barriers to enforcing First Nations laws and by-laws is challenging. What is clear, however, is that addressing it requires significant collaboration between First Nations, federal departments and agencies, and provinces/territories. There is no “off-the-shelf” solution, and any response must be distinctions-based and recognize the need for individual communities to craft their own solutions, as desired, in order to respect their inherent rights.

The committee was pleased to hear that discussions between some partners are already underway and encourages those discussions to continue. However, the experiences shared by witnesses about how enforcement issues are affecting their People requires the Government of Canada to act now.

With that in mind, given the urgent need to address the lack of enforcement of First Nations laws and by-laws, the recommendations presented in this report are aimed at moving this issue forward in the short-term, recognizing that in many cases, longer-term solutions are required.

The committee acknowledges that it is tabling this report at a time of tremendous pain for Indigenous communities. The discovery of the remains of 215 children at the site of the former Kamloops Residential School is a stark reminder of the legacy of residential schools, and the resulting intergenerational trauma felt by former students and their families. Many Canadians are also grieving this harsh reality. This committee commits to monitoring progress on the relevant Calls to Action of the final report of the Truth and Reconciliation Commission of Canada.

Background and Context

Law-Making Authority of First Nations

The inherent right to self-determination of Indigenous Peoples is recognized in Canada.^[3] In the current Canadian legal context, the law-making authority of First Nations is exercised by some First Nations by making by-laws under section 81, section 83 or section 85.1 of the Indian Act.^[4] Under section 107 of the Indian Act, the Governor in Council can appoint justices of the peace to deal with offences under the Indian Act and certain Criminal Code^[5] offences.

Self-governing First Nations can make laws in relation to the law-making authority that is set out in their self-government agreement or their modern treaty.^[6] In addition, First Nations that have adopted a land code pursuant to the Framework Agreement on First Nation Land Management^[7] (brought into force by the First Nations Land Management Act)^[8] can make laws in relation to their lands, including development, protection and possession. These laws enable First Nations to opt-out of the relevant Indian Act land management provisions. The Framework Agreement includes provisions relating to enforcement of land codes and First Nations laws.^[9] However, this does not mean that laws made under land codes are enforced. As the Lands Advisory Board explains in its brief,

Unfortunately, there has been chronic under-enforcement of Indian Act by-laws. Much of the difficulty in building effective enforcement of First Nation laws under the Framework Agreement can be traced back to difficulties in overcoming the legacy of failure under the Indian Act.^[10]

Role of Federal and Provincial Governments and First Nations Law Enforcement Issues

Margaret McIntosh from the Department of Justice told the committee that “[e]nforcement issues vary significantly across [F]irst [N]ations and reflect a complex landscape of different governance models, access to health and social services, traditions and cultures, relationships with federal and provincial governments, and financial resources.”^[11]

The committee heard that addressing the enforcement of First Nations laws and by-laws involves First Nations, multiple federal departments and agencies, as well as the provinces/territories:

Reconciling the unique law-making authorities of Indigenous Communities with the traditional criminal justice system is a complex issue engaging the mandates of several federal departments, provincial and territorial governments, as well as Indigenous Communities themselves.^[12]

Since provinces and territories have jurisdiction over the administration of justice under the Canadian constitution, they are “key partners” in enforcement.^[13] At the federal level, responsibility is shared between Justice Canada and Public Safety Canada in relation to “policing and corrections for the federal policy on administration of justice, including with respect to [I]ndigenous [P]eoples.”^[14] With respect to Public Safety Canada’s role, Ms. Julie Mugford, Senior Director, Corrections and Criminal Justice Directorate, Aboriginal Policing Policy Directorate, Department of Public Safety and Emergency Preparedness explained,

Although Public Safety Canada does not have a direct mandate regarding the enforcement of laws or their prosecution, it does have a role to play regarding how they may be enforced by police services, when relevant. This is as a result of its [F]irst [N]ations policing program, which invests in [I]ndigenous policing, as well as with contract policing, which allows provinces and municipalities to retain the services of the RCMP as a provincial or local police force.

… the administration of justice, including policing, is an area of provincial jurisdiction. However, Public Safety Canada works with provinces, territories and municipalities through contract RCMP policing services to ensure the effective administration and management of police services agreements.^[15]

The First Nations Policing Program (FNPP) was established in 1991 and revised in 1996, and is cost-shared between the federal government and provinces/territories.^[16] In most cases, police services are delivered either through self-administered agreements in which the community has its own police force, or through Community Tripartite Agreements, in which an existing police service has a contract to provide services to a community.^[17]

Some of the FNPP’s challenges are discussed below in the section, “Addressing Challenges Together.”

Mr. Jeff Richstone, Director General and Senior General Counsel, Office of the Director of Public Prosecutions (PPSC) explained that,

Despite our limited statutory role, PPSC is committed to working with partners to explore options and develop long-term solutions. To that end, prior to the pandemic, PPSC was in the early stages of initiating discussions with other stakeholders to see how to bring this issue to the forefront, in the hope of identifying solutions to fit the needs of Indigenous Communities.^[18]

PPSC has entered into protocol agreements with some First Nations to prosecute Indian Act by-laws made to address the COVID-19 pandemic. The committee was told that only by-laws that have been reviewed for compliance with the Indian Act and the Canadian Charter of Rights and Freedoms can be prosecuted,^[19] understanding that not all sections of the Indian Act itself are compliant with the Charter. As Mr. Stephen Harapiak, Legal Counsel, Legal Services, Department of Justice, explained

We've been reviewing some of the draft bylaws at the request of [F]irst [N]ations, to provide them some guidance and to assist. Those would be the bylaws that are being enforced. Without the power of disapproval, some of the problems that can come up are whether a bylaw is within the scope of the authority of the Indian Act, or whether it is charter-compliant, as required since 2011.^[20]

This is discussed further in the section “First Nations By-laws: Compliance with the Indian Act and the Canadian Charter of Rights and Freedoms,” below.

Indigenous Services Canada (ISC) provides technical support to First Nations for by‑law development.^[21]

Departmental officials acknowledged that enforcement issues were of significant concern to communities, noting that there was a gap, and indicated a desire and commitment to work with partners to address the issue. The role of the provinces was emphasized by the Office of the Director of Public Prosecutions: “We still need a broader solution that brings together the various partners, including very much the provinces—the provincial attorneys general, the provincially appointed police officers, and frankly the provincial courts, where these offences have to be prosecuted.”^[22]

As Inspector Jeff Preston, Officer in Charge, Campbell River, British Columbia, Royal Canadian Mounted Police explained,

Within any of the contract provinces [provinces that contract the RCMP to provide provincial policing services]—so essentially outside of Ontario and Quebec—the [RCMP’s] policing is a responsibility of the provincial government. With regard to policing on reserve, again it is a provincial responsibility, but the RCMP obviously has to uphold all statutes and regulations that apply to that province.^[23]

Inspiring Stories and Relationships

Restorative Justice

The committee heard of the importance of restorative justice^[24] and of the success of this approach in some First Nations.^[25] For example, Chief Connie Lazore, Mohawk Council of Akwesasne, explained that

Akwesasne laws reflect community culture principles, which may not be within the same framework as the Canadian jurisprudence. Our laws are based on restorative justice principles, which restore balance back to the community for both the victim and the offender, versus the penal system of incarceration and punishment.^[26]

Chief Keith Blake, Vice-President, West, First Nations Chiefs of Police Association, shared the Tsuut'ina Nation justice model with the committee, which includes a peacemakers court:

Our court is configured in a healing circle and is mandated to have an [I]ndigenous crown prosecutor, an [I]ndigenous judge and [I]ndigenous court workers.

It also has a peacemaker present, who oversees this process. The peacemaking process can be utilized if the offence falls under certain criteria. Some offences are ineligible—things like manslaughter or sexual assault. The individual can be recommended throughout the peacemaking process and can be recommended by the Crown, by the judge or by the defence, and the recommendation can occur any time throughout that process, pre-charge or post‑charge.

The process requires the approval of the victim. It is also an agreement that the offender must enter into. It requires the offender to appear before a peacemaking tribunal. That tribunal will consist of formally mediated, trained community members and elders. It's designed to be restorative and less punitive, and it really does look at the root causes of crime.

This peacemaking process enables the justice system to address what I spoke to earlier—the root cause of crime—as well as both Criminal Code offences and nation‑legislated offences, through a traditional value system that provides the community a voice in determining what an appropriate resolution may be.^[27]

The importance of restorative justice, including alternative measures, was also emphasized by Chief Roland Morrison, Chief of Police, Nishnawbe Aski Police Service:

Until we can look at alternative measures and get appropriate measures for [I]ndigenous [P]eople, we are always going to see overrepresentation of [I]ndigenous [P]eople in our corrections system, not only for our adults, but for our youth. It's going to keep happening until we can look at providing a system that fits the [I]ndigenous [P]eoples across Canada.^[28]

Chief Dale Cox, Lakeshore Regional Police Service told the committee that restorative justice is a valuable asset.^[29]

The committee recognizes the importance of restorative justice for communities. Supporting restorative justice should be a priority for federal departments and agencies as part of discussions relating to enforcing First Nations laws and by-laws.

Positive Relationships with Law Enforcement

While colonialism and the historic role of police to enforce federal government policies like residential schools “has led to years of mistrust” of police by First Nations,^[30] the committee heard of steps being taken to bridge that mistrust. Staff Sergeant Ryan How, Meadow Lake RCMP, spoke of the importance of new members connecting with the communities they serve,^[31] and highlighted the following example:

A few years ago, we had a Mountie from Quebec. He was posted to a northern [F]irst [N]ation in Saskatchewan. He had never been on a [F]irst [N]ation before. He went to a powwow. As soon as he heard the drum, he started dancing in his own way. You may have seen it; it was national news. We had the dancing Mountie. The fact that he let himself go and stepped outside of his professional persona won the community over.^[32]

Staff Sergeant How also emphasized the importance of listening, and the need to “approach policing in any community with humility and open communication. Listen to what the community wants. What we may feel as a detachment is a policing priority may not be recognized as what the community wants.”^[33]

Inspector Jeff Preston echoed the significance of good communication:

the best way to make a positive difference in any of the First Nation communities that I've worked in—which have been many—is: having open, honest communication with the officials and the public at large; listening to what they want, what they need; and then working with them to try to accomplish that.^[34]

Mr. Robert Durant, Captain, Director of Val-d’Or RCM Service Centre, Sûreté du Québec (SQ), shared some of the SQ’s approaches to working with First Nations communities. For example, in 2016 a pilot project established a joint Indigenous community police station in downtown Val-d'Or:

Since the station was created, its achievements have helped to improve the partnership between, and the work with, various organizations and public services, and to effect alternative and sustainable solutions. These are in line with the values and culture of the [I]ndigenous [P]eople as well as the population of Val-d'Or, and improve ties with all the residents.^[35]

The committee also heard about how community safety officers (CSOs) can work alongside law enforcement. As Chief Doris Bill explained, in Kwanlin Dün First Nation,

the [CSO] program is centred on the concept that the safety, health and well-being of Kwanlin Dün citizens would be significantly enhanced through the intensive and consistent presence of safety officers who come from the community itself.

…

They patrol our streets. They are visible and they are known. They do not replace the RCMP or any other service in our community… but the CSOs help to bridge the gap between our citizens and those necessary services.^[36]

Addressing Challenges Together

As Margaret McIntosh from the Department of Justice explained,

We are aware of the issues. We are working internally and we are working with our external colleagues on a regular basis in trying to respond to these issues. It's certainly not something we're not aware of. They're just difficult questions and there are many players involved, including provinces.^[37]

The committee heard about the frustrations of communities that adopted land codes, only to discover that they could not enforce them. In addition, the committee heard of numerous challenges relating to the enforcement of First Nations laws and by-laws. These challenges include: concerns from law enforcement that by‑laws made by First Nations under the Indian Act may not be compliant with the Indian Act or the Canadian Charter of Rights and Freedoms (and therefore cannot be enforced)complexities relating to the involvement of different levels of government, various federal departments and multiple police forces; limitations of the First Nations Policing Program; a need for education on First Nations laws for law enforcement, and courts; mistrust of law enforcement; failure to engage with and listen to communities; and, insufficient funding. These challenges are discussed below.

Effect of Lack of Enforcement on First Nations

The committee heard from Chief Keith Blake that

Most jurisdictions across the country do not recognize or prosecute nation-legislated offences. The challenge most [I]ndigenous communities face in this country is the refusal or the reluctance to have provincial Crown prosecutors or federal prosecutors undertake the prosecution of these nation legislation cases.^[39]

Grand Chief Garrison Settee, Manitoba Keewatinowi Okimakanak Inc., told the committee that “First Nation by-laws under section 81(1) and section 85.1 of the Indian Act have not been enforced by policing authorities or prosecuted for 25 years in Manitoba.”^[40]

Chief Heidi Cook shared her community’s experience with enforcement of public health orders and laws made under their land code to address the COVID-19 pandemic:

we needed help enforcing some public health orders and it wasn't forthcoming. People started to know that the RCMP would not do anything to help and so they were much more brazen in defying the public health orders…During that time, what was expressed by members of our pandemic emergency response team, our health team and our enforcement team was that we felt abandoned, and we were struggling to control the spread…We have not enacted any laws after the expiry of our emergency law. The decision was basically what good is the law if it's not enforceable.^[41]

The inability to have their laws enforced puts community leaders in a vulnerable position. Hegus (Chief) Nicole Rempel of the K'ómoks First Nation told the committee,

I'm consistently putting myself in danger, because we can't get the support that is very desperately needed. It's frustrating from a leadership perspective to see how frustrated our members are. They ask why the chief and council aren't doing anything. We regularly have our RCMP liaison officer attend our meetings to try to explain to the membership why the chief and council can't achieve these things—why we can't kick crack dealers off our lands and why we can't deal with trespassers. It's because of the lack of authority given from above to the local RCMP detachments.^[42]

Inspector Jeff Preston provided an example of the challenges:

Here in British Columbia, the B.C. Motor Vehicle Act, a pretty standard act, is not applicable on all roads within reserves. For example, in one of the communities here, on one of the roads going into the community, the Motor Vehicle Act applies, but as soon as you turn off onto a different road, still on the same reserve, the act doesn't apply. It becomes very difficult.[43]

Lack of enforcement of environmental laws can also affect the health of a community. Mr. Andrew Beynon, Director, Land Governance, First Nations Land Management Resource Centre, spoke to the committee about Whitecap Dakota First Nation’s experience:

[Whitecap Dakota First Nation has] direct experience with situations where some individuals were carrying on businesses on the lands, which really caused significant contamination to reserve land. Unfortunately, at least one of those situations was very difficult to control and rather than it being prevented from happening, the environmental damage occurred on the land.^[44]

First Nations By-laws: Compliance with the Indian Act and the Canadian Charter of Rights and Freedoms

The committee heard that since amendments to the Indian Act removed the minister’s power to disallow a by-law in 2014, there is no mandatory departmental review of by‑laws.^[45] While PPSC only prosecutes by-laws that have been reviewed, ISC reviews draft by-laws for comment only at the request of a First Nation. The committee heard that it was seen as the RCMP’s decision to stop enforcing bylaws starting in 2014, leading to frictions between the police and community members:

I think I can go back prior to 2014, when I was living even further north on a [F]irst [N]ation, and we were able to enforce bylaws pursuant to the Indian Act. The [F]irst [N]ation was very pleased with that. It was a dry reserve. …

After 2014, we weren't able to enforce the bylaws anymore, and that caused an immediate friction with all of the police, who were seen as the ones who suddenly stopped. It was perceived as our decision. For the poor junior member going out at three o'clock in the morning and being asked to enforce a band bylaw, they would take the heat, the flack and an earful for the decisions made far, far above them and take the community frustration of why they couldn't deal with that problem when the community wanted it dealt with.

In other posts I've had, the most common question was about how they could get to the point where the police could enforce it. My message to the [F]irst [N]ation was that the RCMP is standing with you. We support you and we want this to happen; we just can't enforce it until there's prosecution.

We offer whatever support we can to make it happen and guidance within our wheelhouse, but it's certainly a point of frustration and friction, unfortunately, between the police, who are perceived as the face of it, and the communities.^[46]

Multiple Departments and Levels of Government

As Ms. Mugford, Public Safety Canada, told the committee, “the current patchwork of overlapping interests and responsibilities in relation to [F]irst [N]ation laws and bylaws between federal government departments, provinces, territories and first nation communities themselves has led to challenges in their enforcement and prosecution.”^[47]

Chief Leroy Daniel Denny, Eskasoni First Nation, Eskasoni Band Council, explained the impact of this overlap on First Nations: “Canada's position to hold policing on reserve as a joint responsibility with the provinces has created a jurisdictional confusion that results in inefficient and under-resourced policing, where our community members are the ones who suffer at the end of the day.”^[48]

The committee heard that federal government partners want to work together to move this issue forward. For example, ISC is supporting a series of enforcement webinars led by the First Nations Land Management Resource Centre aimed at “promoting dialogue among [I]ndigenous governments, provinces and the Government of Canada on how to address the challenges of creating effective and affordable enforcement systems for [I]ndigenous laws.”^[49]

Inspector Preston explained the need to work together:

I look at it as a wheel. There are spokes. Some of those spokes are the enforcement folks like me. Other spokes on that wheel are Public Prosecution Service of Canada, and a spoke is obviously the [F]irst [N]ations community itself, which would want to enact that law. If all those spokes aren't working together, the wheel is going to be flat and it's not going to work. It's not going to roll.^[50]

Stating that “[t]oo often the bureaucracy has stopped at questions without driving to answers,” Chief Robert Louie of the First Nations Lands Advisory Board recommended the appointment of a special federal advisor to lead on this issue.^[51]

First Nations Policing Program

Many witnesses who appeared before the committee spoke to the limitations of the FNPP. As Chief Keith Blake told the committee,

The FNPP is over 35 years old and is in dire need of immediate change. The program is a signed funding agreement … which unfortunately creates inequities and unfair restrictions for [F]irst [N]ations police services that are not experienced by the traditional mainstream policing services…The funding is neither long-term nor sustainable [and] does not allow us to properly prepare and strategize for the community’s needs and public safety. It’s also funded only for what could be termed core policing function–that is, responsive models.^[52]

Chief Morrison pointed out the inequity between services that the FNPP is funded to provide compared to other police services:

right now, crime units, emergency response and victim services are deemed ineligible. Under the current [provincial] Police Services Act [of Ontario] and the forthcoming [provincial] community policing and safety act [of Ontario], law enforcement, emergency response and victim services are all core functions for a police service.^[53]

In response to a question, Chief Morrison noted that

We have high rates of domestic violence occurring in our communities, yet we have to apply for funding to run a program to support victims. When you look at crime units, we look at our crime severity index for [I]ndigenous policing. Many [I]ndigenous policing services are very high on this index, yet we can't have crime units to investigate major crimes.^[54]

Referring to the 1996 First Nations Policing Policy,^[55] Mr. Julian Falconer, Partner at Falconers LLP and counsel for the Nishnawbe Aski Police Service, told the committee that “[t]he terms and conditions used by Canada, used by Public Safety are inconsistent with the policy that is supposed to be behind the program. This needs to be recognized and addressed.”^[56]

The committee is aware that co-developing a legislative framework to recognize First Nations policing as an essential service has been identified as a priority for the Minister of Public Safety and Emergency Preparedness and the Minister of Indigenous Services.^[57] Most of the witnesses who referred to this legislative proposal supported it. For example, Ms. Deborah Doss-Cody, Chief Officer, Stl'atl'imx Tribal Police Service told the committee that “[l]egislation is key, and becoming an essential service is key so that we can sustain our police services so that we can provide the safety if the communities choose.”^[58]

The need to engage with First Nations directly on this proposed legislation as well as subject matter experts and partners such as the First Nations Lands Advisory Board was emphasized by various witnesses.^[59]

Educating Law Enforcement and Courts

The committee heard that law enforcement officials from outside First Nations communities do not always have a clear understanding of the legal force of First Nations laws. As the Lands Advisory Board states in its brief, “Police, prosecutors, and courts are unfamiliar with Indian Act by-law enforcement let alone the Framework Agreement.”^[60] Tla’amin Nation in its brief notes that

The Royal Canadian Mounted Police (RCMP) often decline to enforce Treaty or Land Code Indigenous government’s laws because they are of the opinion that these are akin to ‘municipal bylaws’. This interpretation is incorrect as these are laws.^[61]

Similarly, some judges may be unfamiliar with First Nations laws made under land codes or under self-government agreements. Hegus Rempel shared K'ómoks First Nation’s experience undertaking a private prosecution of a criminal offence to remove non-band members who refused to leave the reserve after the termination of their residential tenancy agreement:

By refusing to leave, they had committed a land code offence because they had no lawful right to be on our lands …The RCMP said they could not remove [the individual] or charge them under the land code offence. They would attend and keep the peace as our laws were not “real laws”. The Crown would not prosecute as it didn't recognize our laws or the authority we had to create these laws.

…

With the court decision in Thordarson in favour of K'ómoks, the question of enforcement [of a second notice of trespass issued against another former tenant] should be a non-issue and the RCMP should be there to enforce the matter. However, we've been told by the RCMP lawyer that they have not been granted that direction from higher-ups within the RCMP.^[62]

Chief Louie echoed the need for education relating to laws made under land codes.^[63] As the Lands Advisory Board explained in its submission,

Many land code First Nations have faced refusal from police forces when they ask for help, with police forces expressing concerns regarding validity of land code laws, concerns about potential liability of police officers, and uncertainty regarding who will prosecute laws if charges are laid. It has been difficult to this point to reach agreement with either federal or provincial prosecutors to tackle First Nation laws under the Framework Agreement.^[64]

To improve understandings of First Nations laws, the Lands Advisory Board recommended that

The authority under which police forces can enforce First Nation laws needs to be expressly set out in publications, including training materials available to police officers. Police officers and new trainees (as well as prosecutors and courts) must have no doubts as to the scope of their authority.^[65]

Mistrust of Law Enforcement and Government

While the committee heard of steps taken to develop positive relationships between Indigenous Peoples, law enforcement and different levels of government, Chief Reginald Bellerose, Muskowekwan First Nation, Touchwood Agency Tribal Council, highlighted continuing issues with relationships: “[B]ecause of the colonial system and what's imposed, there's a lack of trust, especially toward [F]irst [N]ation leadership. For us, we need to also regain that trust, because we're the ones answering for you guys.”^[66]

Lack of trust extends beyond law enforcement, as Chief Lazore explained to the committee: “When we can build trust within, these services will go a lot more smoothly, but right now Canada pushes their laws and Canada tells us in our self-government agreement that we must negotiate self-government.”^[67]

Trust is improved when First Nations are provided policing services by First Nations People. Increasing the number of First Nations police officers can improve community relations; however, Chief Leroy Daniel Denny, Eskasoni First Nation, Eskasoni Band Council, told the committee that many Mi'kmaq youth in his community had wanted to enter into policing but had not succeeded:

Many, many Mi'kmaq youth have been trying to get into policing. They're just denied and they fail. I wonder why their submissions are not being respected or approved to enter policing…

…Now most of our Mi'kmaq officers are retired. We're not going to have any more Mi'kmaq-speaking officers, and to me that's a big issue. We need more [I]ndigenous officers, especially those who speak their own language. That's the most crucial and most important thing that we need here if we want to [I]ndigenize policing.

…Right now, the RCMP is so colonized. That's why our Mi'kmaq officers can't get in there. It's because we don't meet their requirements.^[68]

Failure to Engage with and Listen to Communities

First Nations know how to protect the health and safety of their members. Solutions to the enforcement problems need to come from First Nations. As Chief Bellerose told the committee,

We're working hard to come up with our own solutions …What we ask for is respect and understanding of what our solutions are, because there's not one solution for all 600‑and-some [F]irst [N]ations in the country…There needs to be adaptability, flexibility, and understanding and recognition of who we are as [F]irst [N]ations and first peoples of this land. We need to design, control and operate the enforcement function.^[69]

Funding

Insufficient funding affects many aspects of First Nations policing and First Nations justice systems more broadly. First Nations police services are not able to provide officers with salary and benefits comparable to other police services, which can lead to burnout and retention issues.^[70] Lack of funding can affect First Nations’ ability to develop their own laws, particularly if they have to retain outside legal counsel.^[71] Lack of funding also affects a First Nation’s ability to support practices that may better reflect the values of their community, such as hiring community safety officers and emphasizing compliance with the law rather than focusing on its enforcement.^[72]

With respect to funding under the First Nations Policing Program, Chief Blake told the committee:

t]he program itself depends upon our federal and provincial funding partners, 52% from our federal partners and 48% from our provincial partners.

The problem with this type of funding is that if we don’t have that 52% or 48%, we just don’t get it. Again, provincially, we’re facing some challenges in the province of Alberta. I don’t know if their 48% would be available to us.

The other challenge I’ve seen in the past is that it pits our [F]irst [N]ations police services against each other. We’re vying for all the dollars that are available, and I think we’re all in dire need of that money. Again, it’s about the best business case. Really, it’s not the way I would like to see it. I would like to see evaluations that are more objective and that provide us all accessibility to the funds that are needed.^[73]

With respect to funding more generally, Mr. Derek Yang (Director, Community Services, Tla'amin Nation) told the committee:

What we would like to see is a divestment, a move away from funding strictly guided towards policing and a broader approach to community safety or public safety and enforcement on [I]ndigenous territories.^[74]

Mr. Brooks Arcand-Paul,Lawyer, Indigenous Bar Association in Canada, emphasized the link between funding and Indigenous self-determination, noting “How can you exercise your jurisdiction if you don't have the funds to do so?”^[75]

Recommendations

There was a short time allotted for the study; this was the first step to understanding the complexity of enforcement in First Nation communities or Indigenous communities. The committee therefore recommends that a further study, research or exploration be devoted to this topic.

Many detailed recommendations were submitted to the committee, some explicitly addressing enforcement issues for First Nations laws under treaties or under land codes. The committee encourages the Government of Canada to review the recommendations proposed by witnesses and in written briefs, and to engage the relevant communities and organizations on those recommendations.

Given the urgent need to address the lack of enforcement of First Nations laws and by‑laws, the committee is focusing on recommendations that will move this issue forward in the short-term, while recognizing that in many cases, longer-term solutions are required.

The overlapping roles and responsibilities of federal departments and agencies as well as provincial/territorial governments with respect to enforcing First Nations laws and by‑laws appears to be a barrier to addressing this issue. While the committee recognizes that provinces and territories are responsible for the administration of justice, and that developing approaches to address this issue must include provinces and territories as key partners, establishing a lead within the federal government could help avoid inter‑departmental gridlock on this issue. The committee therefore recommends

Recommendation 1

That the Government of Canada, with the Department of Justice taking a lead role, establish a permanent Federal Advisor on the Enforcement of First Nations Laws and by‑laws. The Federal Advisor should:

• be funded adequately, and work with all relevant departments;
• advise the Minister of Justice and Attorney General on matters relating to and the implementation of Indigenous laws including by-laws on‑reserve and challenges to the enforceability of Indigenous laws;
• advise the Minister of Justice and Attorney General when needed on the navigation of the unique issues relating to jurisdiction on-reserve and First Nations lands management;
• assist the Minister of Justice and Attorney General when advising the heads of departments of the government on matters of law connected with jurisdiction as well as Indigenous laws;
• engage with First Nations across Canada to identify solutions to the lack of enforcement of First Nations laws and by-laws;
• ensure that First Nations that want to participate in this process receive funding and other necessary supports to enable them to participate;
• Ensure that the voices of First Nations women, girls, and Two Spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and/or asexual (2SLGBTQQIA+) people are included and supported in these discussions;
• As part of the discussions, explore the possibility of appointing Justices of the Peace under section 107 of the Indian Act and section 19.4 of the Framework Agreement on First Nations Land Management; and
• Provide a report outlining a path forward within one year of the tabling of this report.

Recommendation 2

That the Government of Canada convene a working group made up of relevant federal departments, the First Nations Lands Advisory Board, Indigenous Bar Association and Indigenous Police Associations, Public Prosecutions Canada, modern treaty partners, provinces and territories, and any other organizations as appropriate on how to address the issue of law enforcement, prosecution, and Charter compliance in Indigenous communities within one year and report to the committee with a plan for enforcement on First Nations reserves within two years.

The committee heard that some communities need more support with respect to drafting laws and by-laws. The committee therefore recommends

Recommendation 3

That the Government of Canada work alongside the provinces and territories, Indigenous Bar Association and other stakeholders to outline a step-by-step process for bands to follow when drafting band by-laws and Indigenous laws to be enforced by police services and properly prosecuted by the appropriate prosecution service. Contact information for the appropriate government point‑of-contact at each step of the process should be included, and the Government of Canada should report back in one year.

The committee heard that, while there are some positive relationships between law enforcement and some First Nations communities, significant work still needs to be done. The committee also heard that having First Nations People employed in law enforcement was essential, that there are inequities in the criminal justice services provide to First Nations communities, and that restorative justice plays an important role. The committee therefore recommends

Recommendation 4

That the Government of Canada recommend that the Royal Canadian Mounted Police conduct a thorough review of their hiring process and practices to recognize and address any systemic barriers which have had a negative impact on the hiring or selection of Indigenous officers. This review would also include recognizing and addressing any systemic barriers which have led to a greater number of Indigenous officers choosing to leave the force.

Recommendation 5

That the Government of Canada recommend that the Royal Canadian Mounted Police (RCMP) address the lack of Indigenous representation in the RCMP by prioritizing the selection of Indigenous language speakers as part of their selection criteria, to help address the loss of Indigenous RCMP officers within Indigenous communities.

Recommendation 6

That the Government of Canada, in collaboration with provinces and territories, work with local Indigenous police representatives to create continued collaboration and recommendations on best practices within Indigenous policing.

Recommendation 7

That the Government of Canada provide funding for capacity building for equitable delivery of criminal justice services to Indigenous communities and increase funding for Indigenous policing, restorative justice and community safety programs.

Recommendation 8

That the Government of Canada expand Indigenous-led restorative justice programming and explore First Nations-led public prosecution services, courts and tribunals.

Recommendation 9

That the Government of Canada recommend that the Royal Canadian Mounted Police increase cultural sensitivity training, restorative justice principles training, and language training for police officers working with Indigenous communities, and work with the provinces and territories to assist with improving their training for their police services.

The committee heard that some First Nations are emphasizing community values by implementing restorative justice systems and practices in their communities. The committee also heard that there are ways to develop collaborative relationships between law enforcement officers and First Nations; relationships based on trust, openness, and respect. The committee calls upon the Government of Canada to support First Nations by establishing a Centre of Excellence for First Nations enforcement and justice concerns, where First Nations can share their knowledge with others who may have less capacity to address these issues. The committee therefore recommends

Recommendation 10

That the Government of Canada engage with First Nations communities to establish a First Nations Centre of Excellence for Knowledge-sharing on Enforcement and Justice Issues. The Centre of Excellence should have long-term, sustainable and predictable funding.