Co-development of First Nations Police Services Legislation: Objectives and Guiding Principles

DRAFT – For discussion

May 3, 2023

Purpose

The purpose of this document is to identify the shared goal of the legislation and to set out the “Objectives and Guiding Principles” of the legislation to meet that goal. These “Objectives and Guiding Principles” are designed to be high-level to support ample flexibility in the co-development phase.

Rationale

First Nations communities across Canada continue to suffer from major public safety crises, including disproportionate levels of crime, violent crime, and the ongoing crisis of Missing and Murdered Indigenous Women and Girls (MMIWG). First Nations have long called for reform to how First Nations police services are funded in Canada, which is currently via the First Nations and Inuit Policing Program (Annex A), and have advocated for a legislative framework that recognizes First Nations police services as an essential service, is broadly accessible and provides funding that is predictable, sustainable and reflective of the unique needs and realities of First Nations police services and the communities they serve.  These calls for reform were echoed in Canada’s Spring 2022 engagement process and the Assembly of First Nations’ parallel engagement process.^{Note de bas de page1}

Reforming the way in which First Nations police services are supported has been an element of various declarations and reports on advancing First Nations self-determination and improving service delivery in First Nations. These include the:

• 1996 Royal Commission on Aboriginal Peoples Report (Bridging the Cultural Divide: A Report of Aboriginal People and Criminal Justice in Canada) which speaks to the problematic historic legacy of policing in First Nations communities and identifies issues with funding insecurity.
• 2017 First Nations Chiefs of Police Association (FNCPA) resolution calling on the Government of Canada and provinces “to entrench First Nations Policing as an essential service, provide adequate human resources, infrastructure, and operations and maintenance resources, and sufficient, predictable and sustained funding that meets the unique needs of each department”.
• 2019 Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, Calls to Justice, specifically 5.4 which “call[s] upon all governments to immediately and dramatically transform Indigenous policing from its current state as a mere delegation to an exercise in self-governance and self-determination over policing. To do this, the federal government’s First Nations Policing Program must be replaced with a new legislative and funding framework, consistent with international and domestic policing best practices and standards, that must be developed by the federal, provincial, and territorial governments in partnership with Indigenous Peoples”.
• 2019 Expert Panel on Policing in Indigenous Communities, Council of Canadian Academies report “Toward Peace, Harmony, and Well-Being: Policing in Indigenous Communities" which found that “in the absence of legislation there continues to be jurisdictional ambiguity and disputes between the federal and provincial/ territorial governments regarding policing in Indigenous communities. These disputes result in failures to assume responsibility and prevent many Indigenous communities from receiving effective policing”.
• 2022 Joint Position Paper of the First Nations Chiefs of Police Association (FNCPA), Indigenous Police Chiefs of Ontario (IPCO), and Quebec Association of First Nation and Inuit Police Directors (QAFNIPD) Re: Federal Indigenous Policing Legislation which states that, “First Nations police services should be founded on a legislative framework that enables First Nations to establish, administer and regulate their police service and to appoint police officers, consistent with provincial norms and practices”.

Guided by a joint commitment to reconciliation

In June 2017, the Prime Minister of Canada and the National Chief of the Assembly of First Nations signed the Memorandum of Understanding on Joint Priorities, in which “policing and community safety issues affecting First Nations” was identified as the first shared priority. Later, the 2020 Assembly of First Nations Annual General Assembly passed a resolution to “work with the relevant ministries to co-develop a legislative framework to designate First Nations Policing as an essential service…”^{Note de bas de page2}

Solidifying the government’s commitment, in 2019 and 2021, the Minister of Public Safety was mandated to “…co-develop a legislative framework for First Nations policing, which recognizes First Nations policing as an essential service”. To advance this joint initiative, Public Safety Canada and the Assembly of First Nations, with the support of the First Nations Police Chiefs Association and the First Nations Police Governance Council, established a co-development working group to work respectfully, collaboratively, and transparently to co-develop federal legislation that recognizes First Nations police services as an essential service in a manner consistent with the recognition of the First Nations’ right to self-determination.^{Note de bas de page3}

Public Safety is committed to advancing reconciliation between the Government of Canada and First Nations and recognize that this is an ongoing process. This includes co-developing legislation which advances First Nations self-determination and self-government while respecting the nation-to-nation relationship which respects the uniqueness of each First Nation. As such, the co-development of the First Nations police services legislation would be advanced in alignment with the:

• 2015 Truth and Reconciliation Commission’s Calls to Action for Canada to redress the legacy of residential schools and advance the process of reconciliation. 
• 2018 Principles respecting the Government of Canada’s relationship with Indigenous Peoples.
• 2021 United Nations Declaration on the Rights of Indigenous Peoples Act which requires the Government of Canada to take all measures necessary to ensure consistency of federal laws with the UN Declaration in consultation and cooperation with Indigenous Peoples.
• 2022 Position Paper on Co-development with the Assembly of First Nations that identifies a series of fourteen basic principles to be adopted as a consistent, whole-of-government framework for future co-development with the Assembly of First Nations.

Engagement informing objectives and guiding principles

In Spring 2022, Canada and the Assembly of First Nations launched parallel engagement processes to hear directly from First Nations, First Nations organizations, First Nations police services, First Nations police boards/ commissions, First Nations women’s, youth and 2SLGBTQQIA+ people and organizations. Throughout the co-development process, Canada has collaborated with the Provinces and Territories, First Nations Modern Treaty and Self-governing Agreement signatories, the First Nations Chiefs of Police Association (FNCPA), and the First Nations Police Governance Council (FNPGC) to identify practical considerations to inform legislation.

Canada’s “What we heard” report, engagement reports produced by the AFN, and the FNCPA, IPCO and QFNIPD Joint Position Paper “Re: Federal Indigenous Policing Legislation” will inform further expert engagement on what was heard and discuss practical and technical considerations in the co-development of elements to inform legislation.

Findings to date

Throughout various engagement sessions under Public Safety Canada’s mandate, First Nations participants were overwhelmingly clear that First Nations police services recognized as essential services means that funding for First Nations police services should be predictable, equitable, accessible, flexible, stable and responsive to First Nations police services operational requirements and to community priorities and needs.  Decisions on funding need to be based on fair and transparent processes which involve federal, provincial and First Nations representatives.

Participants also stated that First Nations police services must be treated as substantively equivalent to other police services, and must be culturally responsive and respectful of the communities they serve.

Feedback received from engagement, discussions with First Nations, reports, inquiries and research studies have informed the following objectives and guiding principles for the co-development of First Nations police services legislation.

Objectives & Guiding Principles

Public Safety Canada believes that the goal is a First Nations police services legislation which: Supports First Nations on their path of self-determination and self-government by recognizing First Nations police services as essential services.

Public Safety Canada posits that in order to achieve this goal, that the co-development of the “Elements” to inform the First Nations police services legislation will proceed as per the following “Objectives and Guiding Principles”.

Objective 1: Legislation founded on Canada’s commitment to reconciliation by supporting First Nations on their path of self-determination and self-government.

Guiding Principles

• The intent of the legislation is to acknowledge the historical harms against First Nations through government laws, policies and actions as they relate to policing, and that this acknowledgement is a critical step in reconciliation.

• The intent of the legislation is to respect historic and modern treaties, self-government agreements, and other constructive arrangements concerning First Nations police services.

• The intent of the legislation is to support First Nations on their distinct paths to self-determination and self-government. The legislation will support First Nations in their role in establishing First Nations police services and First Nations police governance, as well as setting community safety and policing priorities.

Objective 2: Legislation which recognizes First Nations police services as essential services.

Guiding Principles

• The intent of the legislation is to recognize First Nations police services as essential services,  underscoring that these services are indispensable for community safety and security.  

• The intent of the legislation is to acknowledge that First Nation police services and First Nations police governance provide culturally responsive policing services, are accountable to the communities they serve, and are inclusive of First Nations’ local and unique community safety needs and policing priorities.

• The intent of the legislation is to affirm existing provincial/territorial legislation that allows for the establishment of First Nations police services and First Nations police governance and sets out standards of adequate and effective policing, oversight and complaints processes.

Objective 3: Legislation supported by appropriate funding which articulates a decision-making process concerning funding for First Nations police services and First Nations police governance that is grounded in partnership and respect.

Guiding Principles

• Federal funding associated with the implementation of the legislation must support First Nations police services as essential services to meet the applicable policing standards set out in provincial policing legislation. Funding amounts must consider all aspects of the operations of a First Nations police service, including, but not limited to, First Nations police governance, human resource expenses, equipment and infrastructure costs, and unique costs of policing in First Nations. Funding must be cost-shared at 52% federal, 48% provincial, or as determined through treaties, self-government agreements, administration of justice agreements or other constructive arrangements.

• Funding should be accessible, flexible, stable, and responsive of the operational requirements of First Nations police services and the unique needs and priorities of the communities they serve. Funding should accommodate the growth and evolution of First Nations police services.

• The intent of the legislation is to establish a decision-making process for the provision of funding for First Nations police services that promotes partnerships with First Nations, federal, and provincial/territorial governments based on trust and mutual respect.

Objective 4: A framework for implementation that supports the objective of recognizing First Nations police services as essential services.

Guiding Principle

• The intent is a legislation which is flexible enough to support First Nations where they are at on their path to self-determination and self-government. Consequently, unique approaches will likely be required to ensure effective implementation and support to individual First Nations, First Nations police services and First Nations police governance. Policies and funding will need to support various approaches and institutional infrastructure may be required. The approach to implementation could include enhancement of existing regional/national entities that support First Nations police services.

Objective 5: Legislation which clearly articulates the roles of First Nations, provincial/ territorial governments and federal government.

Guiding Principle

• The intent of the legislation is to identify the roles of federal, provincial/territorial, and First Nations governments, in supporting First Nations police services as essential services.

Annex A: Background on the First Nations and Inuit Policing Program

There are currently 35 First Nations police services across Canada and one Inuit police service, serving 155 First Nations and Inuit communities. They are located mainly in Ontario and Quebec, with a smaller presence across all western Canadian provinces. All First Nations and Inuit police services operate according to existing provincial police legislation and regulations.

First Nations police services all receive financial support through the First Nations and Inuit Policing Program (FNIPP), a discretionary contribution program created in 1991 that provides federal funding to support professional, dedicated and culturally responsive policing services in eligible First Nations and Inuit communities. Under the FNIPP, eligible costs are shared with provinces and territories in accordance with a 52% federal and 48% provincial/territorial cost-share ratio. Self-Administered Police Service Agreements, which are the agreements used to provide federal and provincial funding for First Nations and Inuit police services, are signed by three parties: the First Nation(s) or Inuit communities, the relevant province, and the federal government.

For many years now, First Nations police services have faced significant challenges and financial obstacles in being able to deliver the full range of policing services, in part due to the limitations of the FNIPP. First Nations police services and community leaders have raised various issues, including:

• Limited budgets, as well as First Nation communities competing with each other to access limited government funding;
• Time-limited government contribution agreements impacting the ability of police services to undertake long-term planning;
• Inequities "at the table" whereby First Nations do not feel they have a true voice at the negotiating table, due to the limitations of negotiating agreement provisions and government funding levels; and,
• Restrictive program terms and conditions, which limit the ability of police services to offer certain specialized services to respond to the specific needs of the communities they serve.

Recognizing these challenges, many First Nations policing organizations, reports, inquiries and research studies have called for reforms to the program and/or the creation of federal legislation recognizing First Nations police services as essential services.

In response to these calls for reform, Budget 2021 announced funding to support culturally responsive policing and community safety services in Indigenous communities including $43.7 million over five years, to co-develop a legislative framework for First Nations policing that recognizes First Nations policing as an essential service.

Date modified:

2023-12-04