Indigenous and Northern Affairs Committee on May 6th, 2021

[The Chair, Liberal, Bob Bratina]

We have quorum, and accordingly, I call this meeting to order, acknowledging first of all that in Ottawa we meet on the traditional, unceded territory of the Algonquin people.

Pursuant to Standing Order 108(2) and the motion adopted on April 29, 2021, the committee is continuing its study of enforcement on first nations reserves.

To ensure an orderly meeting, these are the practices to follow.

Listen and speak in the official language of your choice. At the bottom of the screen, the globe icon is where you can select either floor, English or French audio. As you present your testimony, you can switch from one language to another without bothering to adjust the icon, so just carry on.

When speaking, ensure that your video is turned on. Please speak slowly and clearly. When you're not speaking, mikes should always be on mute.

Pursuant to the motion adopted on March 9, 2021, I must inform the committee that all technical pretests have been carried out.

With us today, for the first hour, are the witnesses from the Department of Indigenous Services: Christopher Duschenes, Stephen Traynor and Jacques Boutin. Maybe not everyone is here yet, but that will be the panel. From the Department of Justice we have Margaret McIntosh, Jacques Talbot, Stephen Harapiak and Andrew Ouchterlony. From the Department of Public Safety and Emergency Preparedness we have Douglas May and Julie Mugford. From the Office of the Director of Public Prosecutions we have Jeff Richstone and Marke Kilkie.

Thank you all for taking the time to appear.

You have three minutes each, in the following order. We will start off with the Department of Justice.

I'm not sure who's speaking, but please go ahead, for three minutes.

[Margaret McIntosh, General Counsel, Aboriginal Law Centre, Aboriginal Affairs Portfolio, Department of Justice]

Good morning, Mr. Chair.

My name is Margaret McIntosh. I'm from the Aboriginal Law Centre in the Department of Justice. I'm joined today by several colleagues from departmental legal services units with expertise in various aspects of the laws, policies and programs that this committee will be examining in relation to the challenges with enforcement of first nation laws and bylaws.

I'm pleased to be sharing opening remarks with officials from Indigenous Services Canada, Public Safety and Emergency Preparedness and the Public Prosecution Service of Canada.

Gaps in enforcement have been highlighted during the COVID-19 pandemic, when first nations looked for measures to protect their communities. While many first nations took direct action to ensure the safety of their communities during the pandemic, uncertainty with respect to enforcement has had adverse impacts on the safety and well-being of indigenous peoples.

Gaps associated with enforcement are not limited, however, to the COVID-19 context. Enforcement issues vary significantly across first nations 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.

For instance, some communities experience challenges in enforcing Indian Act bylaws related to drugs and alcohol, leading to serious social problems on reserve. Other communities face difficulties with the enforcement of eviction laws pursuant to the First Nation Lands Management Act, forcing them to seek costly private prosecutions.

Additionally, many first nations seek the development of approaches that restore their traditional laws and legal traditions. These may require new approaches to enforcement that are different from those currently available under the criminal justice system.

The federal government has an important role to play in this area. However, making significant progress requires extensive co-operation between first nations, provinces and the federal government, given the complexity of the issues and the number of players involved.

Long-term solutions must be grounded in indigenous self-governance and leave room for flexibility to reflect the diverse realities, experiences and circumstances of individual communities.

Likewise, provinces are necessary partners given the shared jurisdiction over administration of justice and the need to facilitate coordination across justice processes in Canada.

At the federal level, the Minister of Justice has responsibility—shared with the Minister of Public Safety and Emergency Preparedness in the areas of policing and corrections—for the federal policy on administration of justice, including with respect to indigenous peoples.

Recognizing that Justice Canada can play a helpful coordinating role in this area, we've been seeking opportunities to work with indigenous nations, federal departments and interested provinces, including Ontario and B.C.

On January 15, the Minister of Justice received a supplementary mandate letter in which he was tasked with the development of an indigenous justice strategy in consultation and co-operation with a number of federal ministers, provinces, territories and indigenous partners.

While we're still in the early days in the work on developing this strategy, which will require extensive engagement with indigenous peoples, we believe it could also provide an opportunity for discussions on the enforcement of first nation bylaws and laws with first nation leaders and partners.

At the community level, Justice Canada is also exploring how we can better support indigenous communities. The negotiation of administration of justice agreements provides a potential forward-looking response to this demand.

These tailor-made or stand-alone administration of justice agreements could provide practical, on-the-ground solutions and incubation of innovative approaches that could be part of longer-term solutions to address enforcement and prosecution gaps.

In closing, Justice Canada is committed to working with first nations, provinces and federal departments, since a coordinated and focused approach will be necessary to resolve the gap in enforcement and prosecution of first nation bylaws and laws.

Thank you. My colleagues and I would be pleased to respond to members' questions.

[The Chair, Liberal, Bob Bratina]

Thank you very much.

Next we go to the Department of Public Safety, Douglas May and Julie Mugford. Ms. Mugford will speak.

Please, go ahead.

[Julie Mugford, Senior Director, Corrections and Criminal Justice Directorate, Aboriginal Policing Policy Directorate, Department of Public Safety and Emergency Preparedness]

Hello. Thank you very much for inviting me to speak today.

My name is Julie Mugford. I'm a senior director in the crime prevention, corrections, criminal justice and aboriginal policing policy directorate within Public Safety. My responsibility lies in the area of policy relating to the first nations policing program. Today I'm pleased to be accompanied by my colleagues, Douglas May from the emergency management and programs branch of Public Safety, and Jacques Talbot from legal services.

I recognize how important the effect of enforcement and prosecution of laws on first nations reserves is for advancing self-determination. I also understand that closing the enforcement prosecution gaps is required for a true nation-to-nation relationship. However, the current patchwork of overlapping interests and responsibilities in relation to first nation laws and bylaws between federal government departments, provinces, territories and first nation communities themselves has led to challenges in their enforcement and prosecution.

Making progress on this matter requires effort by many partners, including representatives in the federal, provincial, territorial and first nation governments. Policing in first nation communities is a shared interest beyond just the federal government. Provinces and territories are key partners in this area and have jurisdiction over the administration of justice.

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 first nations policing program, which invests in indigenous 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.

As mentioned, 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.

Public Safety is responsible for the first nations policing program. This program is cost shared with provinces and territories, most of which also hold agreements with Canada for the delivery of provincial and territorial police services by the RCMP, with the exception of Ontario and Quebec.

The Government of Canada recognizes the need to strengthen and expand culturally responsive policing in indigenous communities. This is evidenced by Minister Blair's mandate commitment and the recent funding commitment announced in budget 2021, which announced $861 million over five years beginning in 2021-22, and $145 million ongoing to support culturally responsive policing and community safety services in indigenous communities. It also includes $43.7 million over five years to co-develop a legislative framework for first nations policing that recognizes first nation policing as an essential service, and $540.3 million over five years and $126.8 million ongoing to support indigenous communities currently served under the first nations policing program and to expand the program to new indigenous communities. There are $108.6 million over five years to repair, renovate and replace policing facilities in first nation and Inuit communities. The budget commitment also includes $64.6 million over five years and $18.1 million ongoing to enhance indigenous-led crime prevention strategies and community safety services, and $103.8 million over five years for Indigenous Services Canada to support a new “pathways to safe indigenous communities” initiative to support indigenous communities in developing more holistic, community-based safety and wellness models.

To advance this important work, collaboration and engagement with first nation communities and organizations, provinces and territories, police organizations and others is crucial. We know we have a lot of work ahead of us. It's very important and we are looking forward to advancing this very important mandate commitment.

Again, I thank you for inviting me to speak today. I'm available for subsequent questions.

[The Chair, Liberal, Bob Bratina]

Thank you very much.

Next we go to the office of the director of public prosecutions. Who would like to go ahead?

[Jeff Richstone, Director General and Senior General Counsel, Office of the Director of Public Prosecutions]

Thank you, Mr. Chair.

My name is Jeff Richstone. I am the Director General and Senior General Counsel in the HQ Counsel Group of the Office of the Director of Public Prosecutions, the PPSC. With me this morning is my colleague Marke Kilkie, General Counsel in our group.

I will start by speaking in general terms about the act that establishes our service and about our mandate. Mr. Kilkie will talk about the protocol we have established to help Indigenous Communities combat the pandemic. Pursuant to the Director of Public Prosecutions Act, the PPSC is an independent federal entity that initiates and conducts federal prosecutions on behalf of the Attorney General of Canada.

There has existed for many years a gap with respect to the prosecution of Indigenous Community laws. Those laws are enacted by communities under a number of law-making authorities, but the common theme is the nation-to-nation relationship that Indigenous Communities share with Canada.

The prosecution of these laws is not part of PPSC’s mandate. Essentially, our function is to conduct prosecutions of federal statutes on behalf of the Attorney General of Canada. 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.

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.

I will now hand the floor to my colleague Mr. Kilkie, who will continue with our opening remarks.

Thank you, Mr. Chair.

[Marke Kilkie, General Counsel, Office of the Director of Public Prosecutions]

Mr. Chair, in light of the urgent need presented by the COVID-19 pandemic and in particular a situation brought to our attention in Saskatchewan, PPSC has agreed to conduct the prosecution of violations of bylaws passed pursuant to the Indian Act and which are directly related to addressing the COVID-19 pandemic.

This initiative is being limited to Indian Act bylaws in order to ensure that PPSC has the legal jurisdiction required to conduct these prosecutions. This arrangement can be instituted upon an indigenous community requesting that PPSC conduct these prosecutions and entering into a protocol agreement which makes clear that proceedings are being conducted on behalf of the Government of Canada. This protocol, and in particular the wording “in relation to” proceedings conducted on behalf of the Government of Canada, is required in order to give PPSC jurisdiction to prosecute.

In addition, PPSC will only prosecute bylaws that have been reviewed to ensure that they comply with the Indian Act as well as the Charter of Rights and Freedoms. The PPSC will provide legal advice in respect to investigation and prosecution of these Indian Act bylaws to the applicable law enforcement agency, whether that be an indigenous community's own police service, provincial police or the RCMP, as the case may be.

Currently, PPSC has entered into 11 such protocol agreements with communities in B.C., Alberta, Saskatchewan and Ontario. We are just now starting to see charges referred to under these bylaws. We are currently also in discussion with several communities in various other parts of the country.

To be clear, this is a temporary measure and is not in any way meant to represent the solution to the broader issue of who should prosecute indigenous community laws and the process that should be followed in doing so. This measure is not being imposed on any community and it is not meant to displace arrangements that may already be in place to prosecute community bylaws or to prosecute provincial laws that may apply in a given community.

I will now turn back to Mr. Richstone for some concluding remarks.

[Jeff Richstone]

Thank you.

Solutions to the broader issue of bylaw prosecution will have to be developed through cooperation between policy leaders in federal, provincial and Indigenous governments. PPSC looks forward to participating in these future discussions where they relate directly to our mandate.

Thank you, Mr. Chair.

[The Chair, Liberal, Bob Bratina]

Thank you very much.

Next, to conclude our witness testimony, we have the Department of Indigenous Services.

Mr. Duschenes, who will take that?

[Stephen Traynor, Director General, Lands and Environmental Management Branch, Department of Indigenous Services]

Thank you, Mr. Chair. I'm Stephen Traynor with Indigenous Services Canada, and I will give our opening remarks.

Thank you, everyone, for inviting Indigenous Services Canada to appear before you today.

As noted, my name is Stephen Traynor, and I am the director general for lands and environmental management. With me today are supposed to be Christopher Duschenes, Jacques Boutin and colleagues from our legal services unit, and hopefully they'll join us soon.

The department recognizes that enforcement and prosecution of first nation laws and bylaws is an area of growing concern for communities. We acknowledge that this concern has been amplified across the country in the context of the COVID-19 pandemic.

We want to echo our colleagues' point that this issue is a shared responsibility, where each of us plays a role along the enforcement continuum. ISC works collaboratively to build capacity for first nations to develop their own laws and bylaws; for instance, under the Indian Act and the framework agreement on first nations land management.

With respect to Indian Act bylaws, while recognizing that much remains unaddressed, we understand that, in the context of the COVID-19 pandemic, the RCMP and the Public Prosecution Service of Canada have committed to work with communities to enter into agreements to support the enforcement and prosecution of Indian Act bylaws.

ISC ministerial oversight and disallowance powers under section 82 of the Indian Act were removed in December 2014 to allow first nations to exercise more autonomy over their governance. However, in the spirit of co-operation, ISC continues to review draft bylaws from first nation communities for comment only, and only when specifically requested by a first nation. However, the decision to enact and the final content of the bylaw remain the responsibility of the band.

In terms of funding for policing, enforcement and prosecution, the department has supported other government departments and agencies in their work to pursue policing agreements and to continue supporting the administration of justice.

ISC's role has generally been to support first nations bylaw development through training, draft review and field support.

I would like to turn to first nations land management. ISC, through partnership with the lands advisory board and resource centre, provides significant support to participating first nations to develop their own land codes to reassert jurisdiction over their reserve lands and environment.

The framework agreement and the First Nations Land Management Act provide robust enforcement and prosecution powers to communities. That said, as first nations reassert their jurisdiction and develop their own laws to govern their lands and environment, participating communities also play a key role in determining how they want to enforce these laws and prosecute offences.

In recent years, we have seen first nations communities taking a leadership role on these issues, and I hope the committee will hear from them in the coming weeks. A leadership example that I would like to highlight today includes, in British Columbia, the K'ómoks First Nation, which set a precedent in 2018 by successfully undertaking a private prosecution of a trespass offence under their land code.

In Saskatchewan, the Muskoday and Whitecap Dakota first nations have entered into an MOU with the Government of Saskatchewan to work together to explore approaches to address the enforcement and prosecution of first nations laws and bylaws.

In addition, a national online conversation on the enforcement of indigenous laws has been led by the First Nations Land Management Resource Centre, supported by ISC, in collaboration with the Department of Justice, the RCMP and Public Safety. The conversation is a series of enforcement webinars promoting dialogue among indigenous governments, provinces and the Government of Canada on how to address the challenges of creating effective and affordable enforcement systems for indigenous laws.

Enforcement and prosecution of first nation laws and bylaws is a complex and multifaceted issue, and our collective effort will be required to move the agenda forward. ISC will continue to work with federal, provincial and first nations partners to better understand the challenges and opportunities related to supporting effective enforcement. We look forward to the contribution of this committee in advancing this work.

Thank you.

Meegwetch.

[The Chair, Liberal, Bob Bratina]

Thank you, all, for your excellent opening testimony remarks.

I know our committee is eager to get to questions.

A six-minute round begins with Mr. Schmale, Mr. Battiste, Madam Bérubé and Ms. Blaney.

Jamie, please go ahead.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Thank you, Mr. Chair.

Good morning, everyone. There is such expertise on this panel today, so I'm excited to get started here.

I want to talk about an issue that is related to indigenous policing, given that our study is exploring a whole bunch of options. Something that is personally of interest to me is restorative justice.

My first question is for Ms. Mugford, but I'll also open it up to the floor because there might be other areas and departments who may want to speak to it.

I have a whole series of questions, so we'll maybe try to keep the answers tight here.

Ms. Mugford, can you or someone on the panel provide a brief understanding of what restorative justice is with respect to indigenous peoples and what role indigenous peoples have in that process?

[Julie Mugford]

Unfortunately, restorative justice falls out of my area of expertise. I would look to my colleagues who are also on the call today. Failing that, we will also supply some written response to your question.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Is anyone else able to answer that question?

[The Chair, Liberal, Bob Bratina]

Please go ahead, Ms. McIntosh.

[Margaret McIntosh]

I will speak to the idea of restorative justice with respect to the work that the Department of Justice is doing with administration of justice agreements with first nations.

I spoke about it in my opening statements, but this is where we are exploring options with indigenous communities for their own priorities in the area of justice. Very often it's in the form of restorative justice, which is a more traditional form of justice and where they are seeking an off-ramp from the criminal justice system or they wish to enforce their own laws.

I don't know if that's of assistance, but we're certainly doing a lot of work in that area.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Thank you. That is helpful.

I don't know if anyone else wants to answer quickly before I jump to my next one.

[The Chair, Liberal, Bob Bratina]

Mr. Richstone, go ahead.

[Jeff Richstone]

I would say that the public prosecution service is well involved in restorative justice initiatives, in territories both north and south of 60.

We have an internal committee looking at the interaction of indigenous people with the justice system, and our policies are under revision right now, but we do have active initiatives and projects north of 60.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Perfect.

In the models we're seeing is there a role for not only police officers but maybe also elders within the community to help in this process? Are you seeing that in the models that are available and working?

[Jeff Richstone]

Yes, there is that. We actively involve elders and the police in those initiatives.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

What functions do they play?

[Jeff Richstone]

I'm sure you're aware of the Gladue sentencing principles and the framework there. We have a desk book chapter on that, which sets out a framework as to how we carry out those consultations.

I don't want to be too optimistic and say it's always working, but it's something we're working on and developing with the communities. As you can imagine, it's a work-in-progress. It's certainly a positive development and it's something we're committed to.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

If it matters, the feedback I'm getting from indigenous communities I'm speaking with is very supportive of this path. I'm glad to hear your comments on that. I appreciate that.

In a 2020 report found on the Public Safety website on the increasing use of restorative justice in criminal matters in Canada, a number of recommendations were made. Specifically, recommendation number 5 is, “Establish a national dialogue on best practices and standardization, where possible, regarding data collection.” It's not clear if that includes indigenous communities as well. I'm guessing it does.

Could the public safety department confirm that? If that is the case regarding indigenous communities, could you perhaps update this committee on the work that's been done to date?

[Julie Mugford]

Again, I apologize. I am not sure of what is included, but I will get back to you and advise on that.