[Witness spoke in Nêhiyawêwin and provided the following text:]
Ahâw nitotemtik kiatamiskâtinawâw kâhkîyaw, nitikawin sîpîysis, kipohtakaw ohciniya.
[Witness provided the following translation:]
Dear friends, I am greeting all of you in a good way, my name is sîpîysis, and I am from the Alexander First Nation.
Thank you, Mr. Chair. My name is Brooks Arcand-Paul. My traditional name is Sîpîysis, which means “little river” in nêhiyawewin, my people's language.
I'm the vice-president of the Indigenous Bar Association of Canada. I'm also an in-house counsel for the Alexander First Nation. I'm here today to represent the Indigenous Bar Association and to discuss the important topic of law enforcement on first nations reserves.
As a practitioner on reserve, and having primarily first nations in Alberta as clients while in private practice, I am intimately aware of the issues that exist within the framework of enforcement on reserve in Alberta and certainly on the Prairies. I've been dealing with this issue regularly in my practice. The same problems are highlighted time and time again.
First, we must acknowledge that self-government and self-determination won't happen if we fail to address the elephant in the room. That elephant is Canada's ongoing paternalism towards its indigenous partners in Confederation.
Our treaties have given this country the authority to exist. Before those treaties were concluded, this very country recognized that my ancestors, and those of other indigenous groups who entered into similar relationships with the Crown, had decision-making capacities, including the application and use of our own legal systems that were never subordinate to any government in Canada.
Further, Canadian courts have repeated since Confederation that indigenous peoples continue to have the right to use their laws for areas including, but not limited to, family law, adoption, and marriage, and have given deference to nations that enact their own laws and customs. For a piece of legislation such as the Indian Act or FNLMA to continue to exert paternalism is discriminatory. It is shameful for Canada to treat its partner in Confederation as incapable of making legal decisions outside the confines of legislation.
If we are truly intent on getting back to the relationship that was intended under our treaties and modern agreements, or as required on unceded territories, we have to reconceptualize what it means to recognize indigenous legal rights. If we're not doing a wholescale removal of the acts, we need to get creative in how we move forward together in a good way, as was intended when our ancestors both became beneficiaries of our continued sharing of the territories currently called Canada.
I will move to the next issue that first nations experience when it comes to the limited law-making rights afforded to them under the act. When a bylaw is intra vires a band council's authority, the most common and pressing issue remains enforcement—that police forces and the public prosecution services of Canada will not enforce these fully legal instruments under federal jurisdiction.
In terms of law enforcement, the first issue is the capacity of a first nation to draft, implement and enforce bylaws under existing regimes. It's expensive to draft bylaws. Many first nations don't have in-house counsel to assist them in drafting exercises to cover the many different layers that these bylaws must adhere to in order to be legally binding.
The issues may include, but aren't limited to, procedural fairness, privacy laws, human rights, charter rights and overall constitutionality.
Most recently, an RCMP detachment local to one of my clients stated that they are not able to enforce band bylaws on the reserve, with perhaps the exception of trespass bylaws, and that it was incumbent on first nations themselves to go through the onerous process of hiring an officer to enforce such bylaws. Additionally, the RCMP agent went on further to mention that some officers are not educated on how they could enforce such bylaws. However, I do want to highlight that there was an interest by the RCMP to assist in enforcement.
If they were given the tools to do so, first nations may be better suited to exercise the law-making capacities with the assistance of their neighbouring police detachments or through their own officers where applicable. This latter option obviously comes at the nation's own cost to draft bylaws; apply to become an authorized employer of an officer; purchase equipment, including appropriate vehicles, uniforms, firearms, etc.; and hire a fair complement of officers to ensure coverage to the nation. Many nations do not have spare funds to even consider engaging in these activities, as they have other pressing issues to deal with, including the ongoing demands of the pandemic.
Over the course of my work on these issues, I've been stonewalled by the Public Prosecution Service of Canada with regard to the enforcement of bylaws for first nations.
Mr. Richstone raised this issue before the committee the other day.
The public prosecutions office is not seized with the ability to prosecute these bylaws, which Mr. Richstone affectionately referred to as “community laws”.
I would argue that such bylaws, formed under the act, are within the ambit of federal laws, given the first nations' stature within the federation. However, I would go one step further and recognize that Mr. Richstone was correct in his statement that laws passed by first nations should be attracted with the appropriate enforcement by all levels of law enforcement in Canada. Many of your agents are offering their willingness to do so, and I would further argue that they are trying to be good treaty partners in extending their willingness to enforce our laws. It is now your turn.
In sum, I make three major recommendations: a review of the bylaw-making capacities of first nations to amend the act to reflect that first nations have the authority to enact laws, not just bylaws; that such laws be adequately funded for first nations to develop and/or enforce; and finally, that such laws be enforced by those charged to do so, akin to the laws of other law-making jurisdictions in the federation, including your own.
Thank you, Mr. Chair.