Proposed Elements to inform the First Nations Police Services Legislation

Note: The proposed elements are draft only and subject to continued discussions between the Government of Canada and provincial/territorial governments, in addition to this engagement process.

Summary

The purpose of this document is to articulate First Nations, provinces/territories and Public Safety Canada's shared vision to support the drafting of the federal First Nations police services legislation. These elements were co-developed by First Nations policing representative organizations, provinces/ territories and Public Safety with the objective of developing a federal legislation which will support First Nations police services as essential services. The elements are intended to set the policy intentions of the legislation to inform drafting instructions.

Preamble

The preamble may emphasize that this legislation is founded on Canada's commitment to reconciliation with First Nations.

The preamble may recognize that:

• First Nations have historically and continue to exercise leadership in fostering safety and well-being in their communities;
• First Nations have unique histories, cultures and community safety needs which require policing that is responsive to each First Nation's unique needs;
• Provinces and Territories have legislative jurisdiction over the administration of justice;
• First Nations, provinces/territories and the Government of Canada have a long history of collaboration in supporting the administration of justice in First Nations' communities via the establishment of and support to First Nations police services;
• First Nations police services, as well as First Nations police governance bodies, require funding to meet applicable standards outlined in provincial/territorial legislation and regulations, and any other applicable law, to provide services of a comparable level to non-Indigenous communities with similar conditions in the region, and provide police services that are responsive to the needs of the communities served; and,
• First Nations in Canada have long called for reform to how First Nations police services are funded and have advocated for federal legislation that recognizes First Nations police services as an essential service. These calls for reform were highlighted in the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls;

The preamble may note that the Government of Canada is committed to:

• Working in partnership with First Nations and the provinces/ territories based on trust, mutual respect and participation in decision-making to ensure First Nations police services are funded;
• Taking necessary measures to ensure consistency with the United Nations Declaration on the Rights of Indigenous Peoples, as required by the United Nations Declaration on the Rights of Indigenous Peoples Act; and,
• Meeting its obligations concerning funding First Nations police services pursuant to treaties and self-government agreements.

Definitions

The legislation may include the necessary definitions to bring precision and clarity to interpret the Act. The following definitions may be considered for inclusion in the definitions section of the Act or in other sections, as the legislative drafters deem necessary:

• First Nations police service: this definition may indicate that the authorities and responsibilities of the service are described in applicable provincial/territorial policing legislation and by the applicable First Nations and the applicable provinces/territories. The definition should be flexible enough to include all First Nations police services subject to relevant provincial/territorial policing legislation as deemed necessary by the applicable province/territory. The federal legislation should also be flexible enough to support First Nations police services that operate in a geographical area that includes more than one province or territory.
  • The federal legislation must be flexible enough to support First Nations police services in Ontario that are recognized as such by the Government of Ontario. Currently, First Nations police services consists of “First Nations Constables” who are appointed by the Commissioner of the Ontario Provincial Police (Police Services Act, section 54). After the Community Safety and Policing Act, 2019 comes into force (date to be determined), First Nation boards may be constituted under the Act to maintain a First Nation police service (section 32) or First Nation Officers may be appointed to act as a police service (section 101, formerly “First Nations Constables”).  For further clarity, the latter does not include First Nations Constables or First Nations Officers who are funded pursuant to a Service Level Agreement for Ontario Provincial Police administered policing.
  • The federal legislation must be flexible enough to support First Nations police services in Quebec. Under section 90 of Quebec's Police Act, Indigenous police services are police services for the purposes of the Act.
  • The federal legislation would not be applicable to other police services, such as the Royal Canadian Mounted Police, provincial police services and municipal police services, in the definition of a “First Nations police service.”
  • The federal legislation may need to specify that community safety, public safety and other activities are within the scope of this legislation insofar as they constitute part of the roles and responsibilities of First Nations police services.
• First Nation: the definition may identify the appropriate First Nation leadership which represents communities and is authorized to make decisions concerning policing on behalf of the communities, such as First Nations councils or political territorial organizations. Chiefs of police are not signatories to Public Safety Canada's FNIPP funding agreements for current First Nations police services, and it is anticipated this practice would continue for future agreements under the legislation.
• Minister: this definition may indicate that it is the Minister of Public Safety
• First Nations police governance body: this definition may be flexible enough to recognize First Nations police governance bodies also known as First Nations police boards or commissions depending on the province/territory which are defined under provincial/territorial policing legislation as well as those established by First Nations, and recognized by provinces/territories, but not necessarily required pursuant to provincial/territorial policing legislation.
• Policing legislation: this definition may define this term as being the police legislation as per the applicable province/territory.
• Policing regulations: this definition may define this term as being the police regulations as per the applicable province/territory.
• Policing standards: this definition may define this term as being the police standards as per the applicable province/territory.
• Associated activities: this term is intended to capture activities associated with the processes to establish and manage a First Nations police service and a First Nations police governance body (if applicable), including activities conducted by First Nations.
• Federal Funding: this definition may clarify that this is funding provided by the Government of Canada pursuant to the funding arrangements, which represents 52% of the total costs articulated in the funding arrangement.
• Funding Arrangement: this definition may clarify that this is the agreement to which the Government of Canada, the applicable provinces/territories and applicable First Nations agree in order to provide funding for First Nations police services, First Nations police governance bodies and associated activities. This definition may highlight that the conclusion of a funding arrangement is the expression of the agreed upon financial requirements to support a First Nations police service as an essential service.

Treaties and Self-Government Agreements

The legislation is also intended to be the practical means by which the federal government will meet its obligations to fund First Nations police services, First Nations police governance bodies, and associated activities where, and if articulated, in treaties and self-government agreements.

The legislation may clarify that in the event of a conflict between the funding requirements for a First Nations police service in a treaty or self-government agreement and this legislation, that the former will take precedence.

For added precision, the legislation may also mention that the provisions of treaties and self-government agreements take precedence over conditions and specifications outlined in the legislation, particularly in determining the amount of federal funding provided to support First Nations police services, First Nations police governance bodies and associated activities.

The legislation should be clear that the activities that this legislation is intended to fund are those pertaining to First Nations police services, First Nations police governance bodies and associated activities. In other words, should obligations pertaining to other issues be contained in treaties and self-government agreements, these would be out of scope of this legislation.

Purpose

The legislation may include a purpose clause, which may articulate that the purposes of this legislation are to:

• Establish a process for the Government of Canada to make available federal funding to support First Nations police services, First Nations police governance bodies and associated activities;
• Describe a process to determine the amount of federal funding provided to support First Nations police services, First Nations police governance bodies and associated activities.

Funding Arrangements

Minister Authority to Enter into Arrangements to Fund First Nations police services

The legislation may describe the Minister's authority to enter into a funding arrangement with the government of a province/territory and First Nations to support First Nations police services, First Nations police governance bodies and associated activities, subject to federal conditions and the existence of appropriations granted by the Parliament of Canada.

Federal Conditions to Conclude a Funding Arrangement

The federal legislation may identify certain conditions to be met in order for the Minister to enter into a funding arrangement to provide First Nations police services, First Nations police governance bodies and associated activities with funding.

1. First Nations and provinces/territories exercise their roles in the establishment and maintenance of a First Nations police service, First Nations police governance body and associated activities

The legislation should articulate that the federal Minister's ability to enter into a funding arrangement is contingent on the implicated First Nations and provinces/territories exercising their roles in the establishment and maintenance of a First Nations police service, First Nations police governance body and associated activities. A confirmation that these roles have been exercised should be reaffirmed in the funding arrangement.

It is not the intention for the Government of Canada to determine, oversee, opine or set quality standards on how First Nations and provinces/territories conduct their roles in the establishment and maintenance of a First Nations police service, First Nations police governance body and associated activities, nor is it the intention of the Government of Canada to attempt to regulate matters of provincial/territorial jurisdiction. The types of activities that the First Nations and provinces/territories may conduct in order to establish and maintain a First Nations police service, First Nations police governance and associated activities, may generally include:

First Nation

• Support the establishment of a First Nation police service and First Nations police governance body (if not yet established when this legislation comes into force), and provide Canada and the applicable province/territory notice of this support;
• Complete required due diligence and processes to determine the feasibility, parameters and requirements to establish a First Nations police service and First Nations police governance body (if applicable);
• Identify community safety and policing priorities for their First Nations police service in alignment with relevant legislation, regulations and standards of the applicable province/territory as it pertains to policing; and,
• Adhere to applicable provincial/ territorial requirements to establish and maintain a First Nations police service and, where applicable, a First Nations police governance body.

Provinces and Territories

• Exercise its authority in establishing a First Nations police service and a First Nations police governance body (if applicable), including setting the process to establish a First Nations police service and First Nations police governance body (if applicable);
• Exercise its authority in the regulation and oversight of First Nations police services, First Nations police governance bodies and associated activities, as per the relevant provincial/ territorial legislation that regulates policing; and,
• Agree to fund a First Nations police services, First Nations police governance bodies (if applicable) and associated activities to meet relevant provincial/territorial legislative obligations and standards.

2. The Government of Canada, the province/territory and First Nations agree on the amount of funding required to support First Nations police services, First Nations police governance and associated activities, and articulate this in a funding arrangement

The legislation should articulate that the provision of federal funding to support First Nations police services, First Nations police governance bodies and associated activities is contingent on the Government of Canada, the province/territory and First Nations agreeing on the amount of funding needed and articulating this in a funding arrangement. The policy intention is that this funding arrangement is the articulation of the amount of funding needed to support a First Nations police service as an essential service. The funding arrangement should:

• Enable the First Nations police services, First Nations police governance bodies and associated activities to meet relevant provincial/territorial legislative requirements, regulations and standards pertaining to policing, and any other applicable law;
• Enable the First Nations police services, First Nations police governance bodies and associated activities to respond to First Nations' policing and community safety priorities in alignment with relevant legislation, regulations and standards of each province/territory as it pertains to policing; and,
• Consider the broader policing landscape to ensure responsible management and stewardship of public funds.

Resolution of Disputes through Mediation Process

The federal legislation may outline a mediation process to resolve disputes concerning the implementation of the federal legislation.

Entities Eligible to Initiate a Mediation Process

The federal legislation may specify that the following entities are eligible to initiate a mediation process to resolve a dispute and that participation in the mediation process is voluntary. In order for the mediation process to proceed, all of the following entities would need to agree to participate in the mediation process:

• First Nations who have a First Nations police service and a First Nations police governance body (if applicable) and/or First Nations who have support from the applicable provincial/ territorial government to discuss the establishment of a First Nations police service and a First Nations police governance (if applicable) and are in the process of negotiating a funding arrangement with the Government of Canada and applicable province/territory;
• Provinces/Territories; and,
• The Government of Canada.

For further clarification, the federal legislation may specify that a First Nation may decide who represents them in the mediation process.

Types of Disputes that may be resolved through the Mediation Process

The federal legislation may specify the types of disputes which may be initiated by an entity eligible to do so. The following types of disputes may be subject to a mediation process:

• Where the eligible entities are unable to agree on the amount of funding needed to:
  • Enable the First Nations police services, First Nations police governance bodies and associated activities to conduct their responsibilities under the laws and regulations.; and,
  • Enable the First Nations police services, First Nations police governance bodies and associated activities to respond to First Nations' policing and community safety priorities.
• Where the process to determine the amount of funding was alleged to be not fair and/or transparent.

Mediation Process

The federal legislation may specify that a mediation process may be initiated if agreed to by the three eligible entities.

The federal legislation may further specify that in order for the mediation process to proceed, the eligible entities need to agree on the terms of the process, which may include:

• Identification of a mediator or mediators who has/have knowledge of policing in First Nations;
• Identification of the dispute to be resolved;
• Agreement that the objective of the mediation process is for the Government of Canada, the provinces/territories and First Nations to attempt to resolve the dispute; and
• Any other item deemed necessary by the three entities to settle the dispute.

The legislation may include provisions that would account for the unique histories, cultures and ways of resolving disputes in the applicable First Nations.

Other Dispute Resolution Process

The federal legislation may specify that, if an eligible entity proposes a dispute resolution process that differs from the one described above (Section VII), federal participation in that dispute resolution process may be authorized, subject to the Minister receiving:

• Confirmation that the First Nations and provinces/territories have agreed to participate in that process;
• A request from the First Nations and applicable provinces/territories to participate in the dispute resolution process; and,
• Equal opportunity as the provinces/territories and First Nations to determine the terms of the dispute resolution process.

Should the result or decision of the Other Dispute Resolution Process being proposed be binding on the Government of Canada, the federal legislation may specify that the Minister may require additional authorities prior to entering into such a process.

Regulations

The federal legislation may specify the powers of the Governor in Council to make regulations.

The federal legislation may specify that the Governor in Council may only make regulations following engagement by the Minister with First Nations, First Nations police services, First Nations police governance bodies,  provinces/ territories and other representatives as determined by the Minister.

The federal legislation may specify that the matters in which the Governor in Council may make regulations include:

• Dispute resolution processes;
• Establishment of an entity to support the implementation of the legislation; and,
• Any other topics deemed necessary by the Governor in Council, upon recommendation from the Minister, for the Minister to implement the legislation.

Other Provisions - For greater certainty

Limitations on the use of Federal Funding

If necessary, the federal legislation may specify that federal funding may not fund the First Nations police service and/or First Nations police governance body to:

• Assume policing responsibility for any community which is not a First Nation; and,
• Provide services which are not of the responsibility of a First Nations police service, First Nations police governance and associated activities, as per relevant provincial/ territorial policing legislation, regulations and standards.

Implementation

Transitioning existing self-administered police service agreements under the First Nations and Inuit Policing Program to funding arrangements as per federal legislation

The federal legislation may acknowledge that the Government of Canada is currently providing funding for First Nations police services via self-administered police service agreements under the First Nations and Inuit Policing Program.

The federal legislation may articulate that it is intended that all First Nations and Inuit Policing Program self-administered police service agreements which currently provide funding for First Nations police services will be transitioned to new funding arrangements under this federal legislation.

The federal legislation may articulate an intention to transition all existing self-administered police service agreements which provide funding for First Nations police services to new funding arrangements under the legislation five years from the coming into force of the legislation or before the expiry date of the self-administered police service agreement, whichever is later.

The federal legislation may further clarify that existing self-administered police service agreements will continue to be in effect with the coming into force of the federal legislation until such a time as they are replaced with a funding arrangement as per the legislation. If necessary, the legislation may also clarify that no self-administered police services agreements will be concluded or extended once the legislation has been in force for five years.

Establishment of First Nations police services

The federal legislation may reaffirm that the process to establish a First Nations police service is subject to provincial/territorial processes. For further clarity, First Nations police services are not established pursuant to this federal legislation, and nothing in the federal legislation should give the impression that the federal government is compelling provinces/territories to establish a First Nations police service.

Review

The federal legislation could refer to a requirement for the Minister to conduct a review of the entire Act every five years. This may include a comprehensive review of its provisions, administration and operations, arrangements made pursuant to the Act, as well as any other topics relevant to the legislation and deemed necessary by the Minister at the time of the review. The scope of this review should be broad enough to account for and respond to the evolution of the legislation and regulation of policing in First Nations.

The legislation may indicate that these review processes must include engagement with First Nations and provinces/territories. The legislation could indicate that a report with the findings and recommendations from these reviews be tabled in Parliament by the Minister.

Coming into Force

The federal legislation may include provisions concerning how the Act comes into force.

Date modified:

2024-03-18