Parliamentary Committee Notes: Enforcement of Indigenous Laws
Proposed Response:
- Indigenous lawmaking is fundamental to self-determination.
- Effective enforcement of Indigenous laws depends on the capacity of Indigenous governments to develop and adopt them - as well as on clarity with respect to prosecution.
- Giving practical effect to Indigenous law-making depends on collaboration and engagement between all orders of government - particularly First Nations, the federal government and provinces and territories.
- The Government of Canada is working in partnership with Indigenous leadership and provinces and territories to find solutions.
- The ability to adopt and enforce Indigenous laws is not dependent on having a First Nations police service in place.
If pressed
- Public Safety is working with Indigenous Services Canada and with Justice Canada to ensure that capacity and prosecutions are clear so that the police of jurisdiction are able to take enforcement measures.
- Public Safety is actively supporting discussions between Indigenous groups, federal departments, and the provinces or territory to address place-specific enforcement challenges.
- There is much work to do. Officials are ready to support and work together to get it done.
Background:
Under the Indian Act, First Nation governments have the right to adopt laws and by-laws. First Nation communities see this activity as important to supporting self-determination and many consider that First Nations laws will drive towards improved outcomes for community safety and social cohesion. However, giving practical effect to this right requires collaboration between the federal government, provinces and territories, Indigenous governments and law enforcement entities to ensure that there is capacity to draft and adopt laws and clarity on prosecution.
Overlapping interests and responsibilities related to law enforcement has also frustrated efforts on the part of many Indigenous communities to advance the enforcement and prosecution of their laws. Constitutionally, provinces have the authority for the administration of justice within the province, including policing. The Royal Canadian Mounted Police serves as the police of jurisdiction for many First Nation communities, and historic friction with that entity creates further pressure in this space as many Indigenous communities see police as the primary barrier to effective enforcement – and consider that self-administered police services would act more readily to issue tickets and to apply First Nations laws. Public Safety has consistently communicated that the existence of a self-administered police service is not a condition to be able to advance First Nations law-making and is engaging Justice Canada and Indigenous Services Canada to support the spectrum of activities required. It appears that 2014 amendments to the Indian Act to eliminate the need for Ministerial review of by-laws created uncertainty in the enforcement of laws.
Lack of enforcement and prosecution regarding First Nations laws has resulted in numerous complaints regarding police services of local jurisdiction (including self-administered services funded via the First Nations and Inuit Policing Program), pressure in discussions related to self-government negotiation, and demands for access to provincial/territorial and federal prosecutors and establishment of Indigenous courts.
Resolving these challenges was the subject of a 2021 report by the Standing Committee on Indigenous and Northern Affairs, which put forward ten recommendations. Three were directed to the Royal Canadian Mounted Police to address systemic barriers in attraction and retention of Indigenous officers, broaden representation, and ensure cultural competency.
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