Evidence of meeting #32 for Indigenous and Northern Affairs in the 43rd Parliament, 2nd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was laws.
A video is available from Parliament.
Conservative
Jamie Schmale Conservative Haliburton—Kawartha Lakes—Brock, ON
Chair, I see you getting ready to jump in here. You're muted, but I'm assuming my time is up.
Liberal
The Chair Liberal Bob Bratina
Okay. Since the age of steam has ended, I'm having problems with the newer digital era.
Conservative
Liberal
Liberal
Jaime Battiste Liberal Sydney—Victoria, NS
Thank you, Mr. Chair.
Thank you for this study. I think it's very important that we look at enforcement and policing in communities. During COVID I received many calls from chiefs all across Canada who talked about their ability under the Indian Act sections to look out for their communities—bylaws for the enforcement of noxious diseases. They were making bylaws in order to keep their communities safe, yet they were told that in many cases the police in their area would not help them enforce those bylaws.
I'm trying to figure out why a mandate was needed when there is something directly within the Indian Act that says that the chief and council have the responsibility over something; and why, when they make a law to enforce that, they don't receive any help. I too have made calls to the RCMP and wondered what the holdup was.
I understand, Ms. Mugford, that you said there is no direct mandate from the federal government, but doesn't the Indian Act provide that mandate for the enforcement of some laws on reserve?
Senior Director, Corrections and Criminal Justice Directorate, Aboriginal Policing Policy Directorate, Department of Public Safety and Emergency Preparedness
I'm looking at the first nations' policing program more from a policy perspective rather than the operationalization. The enforcement of laws is more of an operational issue, and in terms of enforcement it is done by the police of jurisdiction. I think that would be a question that would be better handled by the RCMP, and I believe you will be speaking with them at a subsequent meeting.
Liberal
Jaime Battiste Liberal Sydney—Victoria, NS
Yes. I've spoken to the RCMP, and they've basically indicated that there was nothing to do. I'm trying to figure out what kind of mandate is needed from a federal government to enable the enforcement of laws that are already recognized, within the Indian Act, as a chief and council responsibility? What is the obstacle for the local enforcement, whether it's provincial or RCMP or communities, in enforcing those laws?
Anyone can step in and answer this question.
Okay, let me try something else. I know there are very different departments on this. I'm trying to figure this out. How often do you collaborate on how we can better serve enforcement on reserve and prosecution by chief and councils?
General Counsel, Aboriginal Law Centre, Aboriginal Affairs Portfolio, Department of Justice
I think all the departments that are here today have mentioned that collaboration is extremely important. As a matter of fact, we have different groups at different levels within our organizations, and we meet frequently. We also work often with our indigenous colleagues.
We are aware of the issues. We are working internally and we are working with our external colleagues on a regular basis in trying to respond to these issues. It's certainly not something we're not aware of. They're just difficult questions and there are many players involved, including provinces.
Liberal
Jaime Battiste Liberal Sydney—Victoria, NS
Okay, I understand that, as I come from a reserve. I see someone else's hand is up. Can you comment quickly on that one?
Stephen Harapiak Legal Counsel, Legal Services, Department of Justice
One of the issues we've been working on in conjunction with our colleagues over at PPSC, of course, is the protocol agreements. We've been reviewing some of the draft bylaws at the request of first nations, to provide them some guidance and to assist. Those would be the bylaws that are being enforced. Without the power of disapproval, some of the problems that can come up are whether a bylaw is within the scope of the authority of the Indian Act, or whether it is charter-compliant, as required since 2011. Those are some of the concerns. We would need particular bylaws to give you a definitive answer as to why a particular bylaw could not be enforced.
Liberal
Jaime Battiste Liberal Sydney—Victoria, NS
Can you give me a sense of timelines with regard to how a community casts a bylaw and what the ultimate determination is in terms of whether it's in compliance?
Legal Counsel, Legal Services, Department of Justice
That's for the first nation itself to determine.
Prior to 2014, of course, under section 82 of the Indian Act, all bylaws had to be submitted to the minister for review, and there was a power of disallowance. If the bylaws were not charter-compliant, the minister would typically disallow them at that point.
Since that power has been removed, the minister has no oversight authority over those bylaws, so it is up to first nations to determine the content of those bylaws, and they no longer have to submit them to the department for review, approval, disapproval or any process like that.
Liberal
Jaime Battiste Liberal Sydney—Victoria, NS
I guess my question wasn't how the process on the reserve works, because I'm familiar with that process. My question is, once a community has determined that this is a bylaw, where does it go next? I understand that it doesn't go to the minister now, which I think is a good step. How does it get to the point where they can get a review and get enforcement of that, and what are the timelines?
Legal Counsel, Legal Services, Department of Justice
There's a requirement that the bylaw be published under section 86 of the Indian Act. Once it is published and comes into force, it is presumed enforceable.
Liberal
The Chair Liberal Bob Bratina
That will pretty much take our time.
Jaime, thank you.
Madam Bérubé, you have six minutes.
Bloc
Sylvie Bérubé Bloc Abitibi—Baie-James—Nunavik—Eeyou, QC
Thank you, Mr. Chair.
I am from the traditional territory of the Cree and Anishinabe in Abitibi—Baie-James—Nunavik—Eeyou, in Quebec. My thanks to all the witnesses who are joining us today.
My question goes to Mr. Traynor.
Earlier, you talked about the issues of concern in terms of police force funding in the pandemic.
Could you explain the challenges you had to face when applying the Indian Act?
Director General, Lands and Environmental Management Branch, Department of Indigenous Services
Thank you very much.
With regard to funding, we provide some funding through an operational funding formula through the First Nations Land Management Act, which allows for a notional amount for enforcement and prosecution. It is not up to us to determine how that is spent on reserve with regard to those activities, but we provide some moderate capacity for the communities to use it as they see fit. It's up to them to sort out their best solution in terms of how they will deal with a flexible community approach regarding enforcement, and to identify any issues with regard to that aspect.
Bloc
Sylvie Bérubé Bloc Abitibi—Baie-James—Nunavik—Eeyou, QC
Is it difficult to enforce other types of laws on First Nations reserves, such as the Criminal Code?
Director General, Lands and Environmental Management Branch, Department of Indigenous Services
That's something I would have to defer to another department on, as we generally work with the communities to provide some funding for their band base to be able to operate and some amount of monies for the first nations land management. On those other aspects, I would have to defer to my colleagues for a response.
Bloc
Jacques Talbot Senior Counsel, Legal Services, Public Safety Canada, Department of Justice
Generally, police services like the RCMP, the Sûreté du Québec, the Ontario Provincial Police or the Indigenous police forces themselves, are in a position to enforce the Criminal Code in Indigenous communities. That is not a problem. However, it becomes more of a problem in cases that are not within the responsibility of the police services. Some band council regulations are not of the same type as those that police services generally enforce, in the same way as some municipal, provincial or federal regulations are not enforced by police services.
However, I invite you to discuss the issue with an Indigenous police chief or a member of the RCMP. They would be able to describe the kind of operational problems they face on the ground.
I hope that answers your question.