Indigenous and Northern Affairs Committee on May 6th, 2021

[Rachel Blaney, NDP, North Island—Powell River, BC]

Thank you.

If I could come back to you again, Mr. Traynor, you talked about the K’ómoks situation. I represent K’ómoks and know Hegus Rempel quite well. You described it as a success and I'm curious about that, because that nation of course spent $178,000 of its own resources to fight this in court. They won, but this is one of the challenges when we talk about so many different things that the nations themselves are having to find a way to resource, and it keeps them financially unable to build up their own economic independence.

You're specifically involved in land management. I'm wondering what is the gap that creates a situation such that indigenous communities, first nations communities, can do all the work and create the bylaws, and yet when they call, they can't get those bylaws enforced. I've heard many stories about how, if a community has a good relationship with the local RCMP—and for my riding, that is what it is—the RCMP will show up and stand there. They can't really do much, but they're there in solidarity, in the hope that the policing that now the chief and council are also taking on, on top of everything else....

What is the gap? Why can't they enforce their own bylaws?

[The Chair, Liberal, Bob Bratina]

Answer very briefly, please.

[Stephen Traynor]

It is certainly a long-standing challenge. The best I can let you know is that we continue to work with the provincial governments and all our federal colleagues to better understand not only the gap but what the challenges are in reducing that gap.

[The Chair, Liberal, Bob Bratina]

Thank you very much.

Hopefully, members of the committee, some of the questions that were difficult to have completely answered might be answered in our follow-up panel. In the interests of time and getting a fulsome committee hour in, we'll suspend for the moment, change our panels and then return.

Our committee is now suspended.

[The Chair, Liberal, Bob Bratina]

I call this meeting back to order.

With us in the second hour are the following witnesses: Hegus—Chief—Nicole Rempel, from K'ómoks First Nation, and Chief of Police Keith Blake, vice-president, west, of the First Nations Chiefs of Police Association.

Chief Rempel, please go ahead for a six-minute presentation.

[Chief Nicole Rempel, K'ómoks First Nation]

Thank you to everyone here for the invitation to speak on a matter of great importance to my community, which is the K'ómoks First Nation, and in fact to all indigenous communities, whether they are under the Indian Act, land code, or are self-governing under a modern treaty.

I'd like to start with the following statement.

Self-government and the rule of law are meaningless and empty slogans if first nation laws cannot be enforced. The Crown has the necessary tools to enforce its laws. Federal and provincial governments are well financed and equipped with police forces, prosecutors and courts to ensure their laws are enforced. Enforcement of first nation laws is complex because the right enforcement tools are not available and capacity for enforcement is not yet developed with first nations.

In British Columbia, the RCMP will generally not enforce first nation laws because the provincial prosecution service will not prosecute offences under first nation laws, whether they are bylaws under the Indian Act, land code laws, or laws enacted by treaty nations. This is because they are not enactments for the purposes of provincial law.

The K'ómoks First Nation helped fill this jurisdictional void by addressing the unenforceability issue head-on in court in 2018 with the K'ómoks First Nation v. Thordarson and Sorbie decision. K'ómoks had a lessee, Ryan Thordarson, and his wife, Amelia Sorbie, who refused to pay rent to their landlord, who held a certificate of possession. Their lease was terminated and they were evicted. However, they still refused to leave. By refusing to leave, they had committed a land code offence because they had no lawful right to be on our lands. They were thus issued a notice of trespass by me under our land code, which is a quasi-criminal offence.

I should state that the difference between Indian Act bylaws and land code is that the authority is transferred from Canada to first nation land code nations to develop laws and to have those enforced. That's where this confusion seems to come in.

The RCMP said they could not remove Thordarson or charge them under the land code offence. They would attend and keep the peace as our laws were not “real laws”. The Crown would not prosecute as it didn't recognize our laws or the authority we had to create these laws. These are not bylaws; these are laws.

K'ómoks had a difficult decision. We had someone squatting on our land illegally, so we decided the only way forward was to charge and prosecute the offence itself via Criminal Code provisions that allow for a private prosecution of a criminal offence. This was unheard of.

The court was baffled and unfamiliar with the land code and the authority granted to develop and enforce laws under the framework agreement of the First Nations Land Management Act. After 10 months in court proceedings, the court eventually got to the understanding and ordered the police to remove the trespasser. This carried significant costs to K'ómoks in legal fees for private prosecution, in the ballpark of $178,000. The trespassers got 10 months of free rent and were fined $1,000 each. This was hardly an equitable decision. It was an extremely costly process. We should not have had to go to court to get that court order.

Just this week—today, in fact—we have another trespasser on reserve who was issued a notice of trespass by me and an RCMP officer two days ago. We are not hopeful that he will leave. In fact, he has dared us to take him to court. We could potentially be looking at another costly court case.

With the court decision in Thordarson in favour of K'ómoks, the question of enforcement should be a non-issue and the RCMP should be there to enforce the matter. However, we've been told by the RCMP lawyer that they have not been granted that direction from higher-ups within the RCMP. While our relationship with the RCMP has drastically improved due to a change in inspectors, their hands are tied at the moment with regard to enforcing laws, because of the lack of direction from above.

A big selling feature of the land code framework agreement is being self-governing on our reserve lands, with the ability to create our own laws and have them enforced and recognized in courts, which wasn't happening under the Indian Act. Funding also remains an issue to develop laws and enforcement.

A secondary issue that we have is that K'ómoks is also in the ninth year of stage five treaty negotiations. We recently held a forum on first nation law enforcement in partnership with the BC Treaty Commission. This forum included land code nations, nations negotiating treaties and self-governing nations, as well as police officers and representatives from the offices of the attorneys general, both federal and provincial.

What we learned was that nations such as Maa-nulth and Tla'amin have been struggling with enforcement issues as treaty nations, and neither has successfully prosecuted a single offence under their laws.

To date, the only modern treaty nation to successfully address an enforcement issue is the Tsawwassen First Nation, which has a very costly enforcement agreement with the Delta municipal police.

To be self-governing, first nations need to have proper enforcement tools, including an adjudicative body, enforcement services and capacity for policing, and mechanisms that harmonize with the provincial court administrative systems.

We are trying to achieve the above through our land code by creating things like community protection laws, adjudication laws and a justice tribunal, and also through our treaty negotiations because we are very close to voting on a treaty. If we're dealing with this under the land code as a self-governing portion under the Indian Act, then how is this going to work out for a treaty? So far, modern-day treaties provide only the first of these tools, and that is law-making. It's the same with the land code.

Before closing, I just want to refer back to the enforcement forum that was hosted by the BC Treaty Commission. It had a number of recommendations. I'm happy to provide these to you, to whomever I need to provide them to, so that they can be shared. There are a number of recommendations, including needing language in the treaty to ensure that first nations laws under treaty can be adjudicated under a first nations justice tribunal.

With regard to the mechanics of enforcement, we need to change the treaty language and provincial law to clarify that first nations laws are “enactments” for the purpose of the Provincial Court Act. That will allow the filing of a first nations justice tribunal order and enable it to come to the order of a court to trigger court enforcement mechanisms.

With regard to policing and enforcement agencies, we have tried for years to negotiate a tripartite agreement with the Province of B.C. and the RCMP, and we have been told repeatedly that they no longer do these tripartite agreements. I understand that may be changing, and I really hope it does. The issues we're facing here in K'ómoks with drug dealers, people trespassing....

[The Chair, Liberal, Bob Bratina]

We're at time, Chief Rempel.

[Chief Nicole Rempel]

I shouldn't be in these people's faces.

Thank you for your time.

[The Chair, Liberal, Bob Bratina]

I'm sorry for interrupting. It's all important, but we want to make sure we get a full round of questioning in.

Chief Blake, you have six minutes. Please go ahead.

[Chief Keith Blake, Vice-President, West, First Nations Chiefs of Police Association]

Good afternoon, everyone.

[Witness spoke in Tsuut'ina as follows:]

Glánįt’e duhú dziné k’e. Keith Blake húshe Dene Nałts’i k’odheré Santana Dene Dedliné ha.

[Tsuut'ina text translated as follows:]

Good afternoon, everyone. My name is Keith Blake. I am the chief of police of the Tsuut'ina Nation.

[English]

I'm also an executive member of the First Nations Chiefs of Police Association and am proud to represent 36 self-administered first nations police services across our country.

First, I want to thank you for this opportunity. It's a critically important discussion, and our communities have been speaking long and loud in relation to this very topic.

As this discussion relates to the enforcement of first nations, which really falls under the police jurisdiction, I thought it would initially be important to touch on the first nations policing program. I was fortunate enough to hear some of the other panellists, and this was a discussion point. I thought it might be good, however, to put it through a first nations policing lens.

The FNPP is over 35 years old and is in dire need of immediate change. The program is a signed funding agreement—in our case a tripartite agreement between the nation, the province and the federal government—which unfortunately creates inequities and unfair restrictions for first nations police services that are not experienced by the traditional mainstream policing services.

The FNPP has not yet been designated as an essential service and it falls under, as was mentioned earlier, the grants and contributions program. The funding is neither long-term nor sustainable, and our funding agreements, specifically in our case, are really year-to-year extensions.

This funding model truly does not allow us to properly prepare and strategize for the community's needs and public safety. It's also funded only for what could be termed core policing function—that is, responsive models. We're not funded to have community programming, prevention or the specified and specialty units other police services have.

It's important and, I think, really critical to note that former public safety minister Ralph Goodale stated that the program “does not cut the mustard” and is in dire need of change. The current minister, Bill Blair, stated that the FNPP needs updating.

Canada has a responsibility to improve first nations policing by making it an essential service and providing adequate funding for the nations to build and sustain proper infrastructure, including governance models.

This unstable funding model has really created an air of instability within our services, whereby our officers and our staff members don't feel that this is a program that will be sustained, and therefore feel that perhaps their profession and their jobs may not be sustained.

This disparity also includes what we receive in our salaries and in our pension and benefits. We end up usually losing our really high-quality officers to more mainstream policing services that have a sustainable funding model at a higher rate.

To sum up, our first nation police services are underfunded and understaffed and face unfair barriers and impediments; yet we still see unprecedented successes in effective, efficient and culturally appropriate community-based policing.

I will also state that we were very happy to hear of the infusion into the program in the last federal budget. We're guardedly optimistic that it will bring some needed support and changes within the program.

Speaking to the enforcement side, the enforcement role that the police undertake is just one important part of the structure of the justice system in our communities. There is the legislative piece, the enforcement piece, the prosecution and the adjudication component. Though we recognize that not many communities have the direct ability to change the way funding and the justice systems correlate, it is important to consider the historical traumas experienced by indigenous peoples, throughout our country and for generations, while considering the ongoing harm that inadequate funding causes in the justice resources that government bodies provide; it is to one of the most vulnerable populations within our country.

Nation-legislated offences are an important aspect of self-determination. They are created from a community lens to address the individual nation's self-identification and the specific needs of the community and the challenges they face.

A key piece of the justice framework is the prosecution of lawfully enacted nation legislation. Most jurisdictions across the country do not recognize or prosecute nation-legislated offences. The challenge most indigenous communities face in this country is the refusal or the reluctance to have provincial crown prosecutors or federal prosecutors undertake the prosecution of these nation-legislation cases.

Although this is unfortunately the situation that most communities find themselves in, there are glimmers of hope. In this instance I'm going to provide a brief glimpse into our Tsuut'ina Nation justice model.

We have a signed agreement with the Province of Alberta for what is termed our peacemakers court, which is unique. Across this province there are no other communities that have this agreement, so we are unique. Our court is configured in a healing circle and is mandated to have an indigenous crown prosecutor, an indigenous judge and indigenous court workers.

It also has a peacemaker present, who oversees this process. The peacemaking process can be utilized if the offence falls under certain criteria. Some offences are ineligible—things like manslaughter or sexual assault. The individual can be recommended throughout the peacemaking process and can be recommended by the Crown, by the judge or by the defence, and the recommendation can occur any time throughout that process, pre-charge or post-charge.

The process requires the approval of the victim. It is also an agreement that the offender must enter into. It requires the offender to appear before a peacemaking tribunal. That tribunal will consist of formally mediated, trained community members and elders. It's designed to be restorative and less punitive, and it really does look at the root causes of crime.

This peacemaking process enables the justice system to address what I spoke to earlier—the root cause of crime—as well as both Criminal Code offences and nation-legislated offences, through a traditional value system that provides the community a voice in determining what an appropriate resolution may be.

Although there are still many challenges and still much work to be done in indigenous communities across the country, I want to thank the committee for giving me this opportunity. I'm happy to answer any questions you may have.

[The Chair, Liberal, Bob Bratina]

Thank you, Chief. I know we're eager to get to those questions.

Mr. Vidal, you're up for six minutes. Please go ahead.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Mr. Chair.

I want to thank both Chief Rempel and Chief Blake for being with us today. Your testimony and knowledge and experience are very helpful as we pursue some answers to this question about policing as an essential service.

The mandate letters for the Minister of Public Safety and Emergency Preparedness and the Minister of Indigenous Services both refer to co-developing a legislative framework to recognize first nations policing as an essential service. In our last panel—I'm not sure if you were both observing the first hour panel—we had officials from four different federal departments on the panel. If I recall, I believe it was Ms. Blaney who asked the question about defining essential services. I'm not sure we actually got an answer to that question from the department officials. We have this mandate that talks about policing as an essential service. I'm not sure anybody is telling us or defining for us what that is in the jurisdictional quagmire we seem to find in the federal departments.

I'm going to start with Chief Blake, and then, Chief Rempel, ask if you'd be prepared to answer the same question.

Would you, in your terms, take a moment and define for me, in your experience at the level of work that you both do, what defining police service as an essential service would mean as a difference in the communities you serve?

[Chief Keith Blake]

Thank you. I appreciate that opportunity.

Again, I'm very much wanting to understand what essential services means in the definition from Public Safety Canada and the federal government, because that hasn't been clearly defined in any of the meetings I have attended.

I think what's key and critical is to ensure that again we're not under a grants and contributions program under which funding cannot be sustained or secured. We need to recognize and realize that we are not asking for anything more in our funding, but we certainly don't want anything less. Our communities deserve it, and we want to ensure that our service officers and staff are treated in the same manner that other police services often take for granted.

The term “essential service”, I know, is something that needs to be spoken to and addressed, but I hope it relates to sustainable long-term funding that can be secured and assured to our communities, and that there is the recognition that policing isn't just a responsive model. It needs to address the root causes of crime through crime prevention and preventative programming, as well as providing us opportunities to grow our police service and have those specialized units that can address the problems within our communities for which we have support only through outside agencies: the RCMP in provincial policing jurisdictions, the OPP and the Quebec police service.

Those are just some of my comments, and thank you for that.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you.

Chief Rempel, do you want to add your comment to that question? Then I will have one more for you, hopefully, if the chair gives me time.

[Chief Nicole Rempel]

Certainly, and thank you to Chief Blake for those comments. I echo those.

As well, I would just add recognition of authority from the RCMP as well as the provincial courts. Our people expect the same services as the general population, and we are not getting that response from the RCMP or from the courts.

There's funding as well. If first nations enforcement is an option to create our own first nations authority, I think that would be wonderful and maybe alleviate some of the issues we are having.

I would really like to hear the federal and provincial definition of essential service as well.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you. I appreciate that from both of you.

I'm going to follow up again with just another question along that same line. The federal government talks about this co-development process. I'm just curious whether you, Chief Blake, in your role with the association, and Chief Rempel, in your role as the chief of a first nation, know of people within your organizations—colleagues or peers—who have been involved or been asked to be involved in the co-development of this process?

[Chief Keith Blake]

I can advise you that the First Nations Chiefs of Police had a teleconference with Minister Blair last week, and we discussed initially how that might look and what's required. Previous to that, I know the AFN was involved in that framework discussion.

I really hope that the subject matter experts in first nations policing are at the table to discuss the challenges, the successes and the framework. That's so vitally important because, without those consultations, I don't think it will be the success that everyone's hoping it can be.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Chief Rempel, I want to be a bit more specific with you. I'm curious if you're aware of any chiefs at the local level who have been asked to be involved with this process.

[Chief Nicole Rempel]

No, I am not currently aware of any. I would certainly like to participate in that and have that opportunity.

It's important to note that while the AFN provides a great service to first nations, it does not accurately, in my opinion, represent every first nation. There may be a reliance on engaging with these larger groups, but they don't necessarily represent my nation, so nation-to-nation discussions are also critically important.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

I suspect that in conversation with your peers, I might hear that same answer from any of them. Would that be fair, in your opinion?

[Chief Nicole Rempel]

I'm sure it would, yes.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you.

Mr. Chair, I think I'm pretty close. I'll cede the rest of my time.

[The Chair, Liberal, Bob Bratina]

Thank you very much.

Mr. van Koeverden, you have six minutes. Please go ahead.

[Adam van Koeverden, Liberal, Milton, ON]

Thank you very much, Mr. Chair, and thanks to both of our witnesses in this hour for providing your very valuable insight and perspective on this.

Chief Rempel and Vice-President Blake, we really appreciate your being here today. Thank you.

My question is focusing on the path forward and the next three to five years. Budget 2021 proposes to provide almost a billion dollars over the next five years, and in particular over half a billion dollars to support indigenous communities currently served under the first nations policing program and to expand that program to new communities.

In addition to that, there are over $100 million to repair, renovate and replace a lot of the policing facilities that have no doubt worn the test of time in first nations and Inuit communities in Canada. In addition to that, there are over $100 million over the next five years for a new pathways to safe indigenous communities initiative, and to develop a more holistic and community-based safety and wellness model.

Given that you would like and indeed deserve deep consultations on these expenditures and investments in indigenous communities, I would love to hear your reflections on how these investments would and potentially could positively impact your communities with better outcomes for your constituencies, as well as any recommendations you have.

Vice-President Blake, I see that your mute is off, so I'd ask you to go first and provide enough time so that Chief Rempel is also able to reflect. Thank you.

[Chief Keith Blake]

Thank you, sir, for this opportunity.

I can speak from experience in the past. Of course, the program itself depends upon our federal and provincial funding partners, 52% from our federal partners and 48% from our provincial partners.

The problem with this type of funding is that if we don't have that 52% or 48%, we just don't get it. Again, provincially, we're facing some challenges in the province of Alberta. I don't know if their 48% would be available to us.

The other challenge I've seen in the past is that it pits our first nations police services against each other. We're vying for all the dollars that are available, and I think we're all in dire need of that money. Again, it's about the best business case. Really, it's not the way I would like to see it. I would like to see evaluations that are more objective and that provide us all accessibility to the funds that are needed.

Again, it is welcome, and we are guardedly optimistic that it will make a difference. Ultimately, however, just to give you some perspective, our service received an additional resource two years ago, and prior to that, it was 12 years before we had any funding for an additional resource. That's far too long, and I'm sure you can appreciate the fact that, for that period of time, we needed growth. Our communities are the fastest-growing communities in Canada, and we have the largest youth population, which needs preventative programming, prevention and engagement. It's hard to do it when all you're doing is responding to calls.