Indigenous and Northern Affairs Committee on May 13th, 2021

[The Chair, Liberal, Bob Bratina]

I call the meeting to order.

We start with the acknowledgement, of course, that when we are 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 continues its study of enforcement on first nation reserves.

To ensure an orderly meeting, those of you online may speak and listen in the official language of your choice, but choose at the bottom centre of your screen the globe icon from which you can select floor, English or French. Whatever you select, you can actually change from English to French without further technical change. When speaking, ensure that your video is turned on, and please speak slowly and clearly. When you're not speaking, your microphone should be on mute.

Pursuant to the motion adopted on March 9, 2021, I must inform the committee that all witnesses have completed a technical pretest, so we're awaiting Chief Mathias of the Long Point First Nation, but we do have with us the chief of police, Roland Morrison, and Julian Falconer, partner at Falconers LLP, both on behalf of the Nishnawbe Aski Police Service.

Mr. Morrison and Mr. Falconer, we're going to start with a six-minute presentation from you, followed by questions.

Please go ahead.

[Chief Roland Morrison, Chief of Police, Nishnawbe Aski Police Service]

Good evening, committee members. My name is Roland Morrison. I'm the chief of police for Nishnawbe Aski Police Service.

Nishnawbe Aski Police Service is the largest indigenous police service here in Canada. We have over 220 officers, and with civilian staff, we have nearly 300 employees. We are responsible for policing 34 communities within the Nishnawbe Aski Nation territory, which is situated in northern Ontario. Of the 34 communities, 23 are remote fly-in communities and 11 are road access. However, I would probably deem some of our road access communities as remote, because they are in remote locations.

NAPS is a member of the First Nations Chiefs of Police Association, and we are also an IPCO member, which is the Indigenous Police Chiefs of Ontario. We are a self-administered police service, and we are a signatory to a tripartite agreement with federal and provincial governments under the first nations policing program.

I want to thank everyone for the opportunity to speak here today. I am sure if this opportunity had gone out to the other chiefs, they would be more than welcome and very happy to be here before you, especially to talk about the enforcement on first nation reserves.

I'm aware that there is various justice programming in first nation communities across our country, from Tsuut'ina in Alberta, to Kahnawake in Quebec, to Akwesasne in Ontario, and also most recently to the Treaty 3 area in northwestern Ontario. I don't know particular details on the programming for these communities. However, what I can speak to you about is what is occurring in the Nishnawbe Aski Nation area.

What we do for enforcement in our communities is basically Criminal Code enforcement. Many of our first nations have enacted band bylaws. However, those bylaws are not prosecuted anymore. In the early 2000s, the Ministry of the Attorney General stopped prosecuting the band bylaws. The communities have been pressing MAG to get their bylaws heard. However, there has been a lot of reluctance from MAG to do this.

In some of our mostly road access communities, a few communities have adopted provisions from various provincial acts, such as the Highway Traffic Act and the Liquor Licence Act. It allows us to perform enforcement, and prosecution of that rests with the Ontario provincial offences court systems. Many of our communities, especially in the north, don't have access to the provincial offences systems.

As I mentioned earlier, NAPS falls under the first nations policing program, FNPP, which is an outdated program. The terms and conditions that govern the first nations program are very restrictive in what are eligible expenses. For example, right now, crime units, emergency response and victim services are deemed ineligible. Under the current Police Services Act and the forthcoming community policing and safety act, law enforcement, emergency response and victim services are all core functions for a police service.

Yet, under the first nations policing program, funding for these aspects of core police functions are not allowed. For example, within our police service, we have a program called the survivor assistance support program. The SASP, which is what we call it, is designed to support the immediate needs of victims of intimate partner abuse and sexual abuse.

When you look at the recommendations from recent inquiries such as the MMIWG, which the federal government has recognized, why is it that indigenous police services such as NAPS have to apply for funding for core policing functions? This is why the FNPP needs to be updated.

Without the proper funding to meet core functions in policing, and with no avenue of prosecution for first nation community-enacted laws, we had to be creative, especially when it comes to COVID enforcement. COVID enforcement in Ontario, as everyone is aware, used the existing provincial offences systems. As I stated, in many remote communities that we police, there is no system for enforcement. Like I said, we had to be creative.

This is where we asked our legal counsel, Falconers LLP, to come up with what we feel is something that our communities can use for code enforcement.

I am going to have our legal counsel explain exactly what we did.

Julian, I'll turn it over to you.

[Julian Falconer, Partner at Falconers LLP, Nishnawbe Aski Police Service]

Thank you, Chief.

I have the honour of not only speaking to you from the headquarters of Nishnawbe Aski Police Service in Thunder Bay, but I acknowledge that I do so in the traditional territory of Fort William First Nation, a treaty partner of the Robinson-Huron Treaty. As well, I simply acknowledge how fortunate and honoured we are, as a law firm, to act for the Nishnawbe Aski Police Service.

I have been party to commentary by many from Canada, and when I say “Canada”, that's the Canadian federal government, many from the provincial Government of Ontario, all tripartite partners with NAPS. As we work our way through difficult negotiations, they routinely observe NAPS' very credible standing as a police service, in fact, one of the top indigenous police services, if not police services, in this country.

That said, we sent some materials that would have been distributed to each committee member in the last 20 minutes. There should have been three attachments, three PDFs. One of them is a PowerPoint, and I would simply ask you to open that up. There are a few slides. Uncharacteristic of a lawyer, I'm going to try not to inundate you with materials, but I think I can whip through these slides pretty quickly and make the point that Chief Morrison asked me to make.

Do folks have access to their email, and in particular, the PowerPoint? It's a PDF that my associate, Shelby Percival, would have sent you. Is that something that people have access to?

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

I don't have it.

[The Chair, Liberal, Bob Bratina]

No.

[Julian Falconer]

The system didn't work.

[The Chair, Liberal, Bob Bratina]

We're past the actual presentation time itself.

[Julian Falconer]

Okay, so I'll go quickly, then.

[The Chair, Liberal, Bob Bratina]

Yes. Please go ahead.

[Julian Falconer]

First of all, when it comes to the template band council resolutions, or BCRs, I want to emphasize what Chief Morrison is referring to.

In fact, the traditional message to first nations about how they are to protect their communities, and in particular, control the flow of people coming into their communities has been routinely the subject of a claim that you have to use the Indian Act. You will have heard repeatedly how inefficient and difficult that process has been.

Chief Morrison reached out to communities, keeping in mind that there are 34 first nation communities under NAPS' jurisdiction, and reached out to community leaders. Really, in what in my view is a perfect example of true community policing, he engaged with the political chiefs and used their inherent sovereignty to help them. He offered legal support to create what we call template band council resolutions. These template resolutions, which are attached in the materials we provided you, assert inherent authority, pre-contact inherent sovereign authority, to protect the safety of community members in the context of pandemic.

It was our legal opinion that the assertion of that inherent authority is well founded based on, literally, pre-contact laws, and more importantly, based on the recognition of the courts of the role of the community in protecting its membership.

At the same time, these same BCRs adopted the provincial laws for Ontario around Emergency Management Civil Protection Act regulations and the Trespass to Property Act. They adopted them so that in addition to the assertion of sovereignty, so there would be respect for the sovereignty, the police service would have tools through the Trespass to Property Act, the law of general application, and the Emergency Management Civil Protection Act, a way forward to prosecute, to lay charges. The Attorney General for Ontario, in written correspondence, has committed to pursue those matters.

These template BCRs were all created so that each community could simply add the list of exceptions to their closure rules and the list of exceptions to their regulatory requirements under COVID. While they would be making the BCR their own, the BCRs were in template format so that each community would have a user-friendly way to engage with the police service and the police service would have a reliable means by which to enforce the community's laws.

These template BCRs are not only found in places in Nishnawbe Aski Nation territory that NAPS polices; they are being used in Treaty No. 3 territory, are being used on Manitoulin Island, and I'm pleased to observe, are being used as far south as Kettle and Stony Point. The bottom line is that they found a way to disabuse themselves of the Indian Act.

I want to move on, though—

[The Chair, Liberal, Bob Bratina]

We're going to run out of time for the questioning round.

[Julian Falconer]

I'll take 30 seconds to complete.

[The Chair, Liberal, Bob Bratina]

Okay.

[Julian Falconer]

I want to move on to a last point.

You will repeatedly hear in the context of submissions made around indigenous policing how limiting the first nations policing program is, what they refer to as FNPP. I want to make an observation as a lawyer that acts for NAPS, for Treaty 3, for the Indigenous Police Chiefs of Ontario.

Something really squirrelly is going on. There are these terms and conditions that people find very limiting, naturally, because they are. As an example, they prohibit the usage of a lawyer to receive advice about funding agreements. But there's never a reference to the 1996 document, which is the first nations policing policy. It is an actual, visionary policy created in the 1990s that disappeared. The FNPP is still in effect, but you never hear about it. We call it the phantom policy. It has wide-ranging expectations that first nations will enjoy an equitable level of policing as everybody else. Instead, all you hear about are these very limiting terms and conditions. I believe a bit of a shell game has been played with what I call this phantom policy. It's important that you get access to this 1996 policy that Public Safety literally never displays or tells people about. Take a look at it. It has everything you need to create equitable policing. Sadly, the terms and conditions undermine that policy. How odd.

The terms and conditions used by Canada, used by Public Safety are inconsistent with the policy that is supposed to be behind the program. This needs to be recognized and addressed.

I thank you for the time you've given me.

[The Chair, Liberal, Bob Bratina]

I'm sorry to stop that, but in view of the limited time, we do need to get to our committee questions.

I need to ask who will start for the Conservatives.

Are you up first, Jamie, or Mr. Vidal? I didn't get the list.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

It's Eric, and then me.

[The Chair, Liberal, Bob Bratina]

Eric Melillo, please go ahead.

[Eric Melillo, Conservative, Kenora, ON]

Thank you, Mr. Chair.

I'm joining today from Kenora, in Treaty 3 territory. My riding extends right up to Hudson Bay and encompasses much of the territory that you operate in as well. I'm very appreciative to have the opportunity to have a conversation with both of you today.

Chief Morrison, I'll direct my questions to you, but if you, Mr. Falconer, want to jump in at any point, please don't be shy in doing so.

Chief Morrison, the expression you used was the “outdated program” that you're operating within. I'm hoping you can touch a bit more on that and maybe provide some more thoughts. We've already heard good testimony, but perhaps you could provide some more thoughts on how the program should be updated, how the agreement itself could change to improve the resources that you're offered.

[Chief Roland Morrison]

It's good to see members from northwestern Ontario here. I think we also see Dr. Powlowski.

It's good to see you as well.

Eric, when we look at the first nations policing program, it is so restrictive in what policing can do. We have service gap deliveries. You heard me mention victim support. We have high rates of domestic violence occurring in our communities, yet we have to apply for funding to run a program to support victims. When you look at crime units, we look at our crime severity index for indigenous policing. Many indigenous policing services are very high on this index, yet we can't have crime units to investigate major crimes.

You look at emergency response and how many emergency response incidents occur, like missing people when they're out on the land harvesting. We can't have a program to go to search for them. We have to bring in all these services. We have to bring in our policing partners such as the OPP to conduct these services on our behalf.

Those are just a couple of the aspects when I say that the first nations policing program needs to be updated. When you look at a police service such as the Nishnawbe Aski Police Service with over 200 members, front-line police officers, and you think about another.... We are almost the size of the Thunder Bay Police Service. We're very similar in size, yet the Thunder Bay Police Service has victim support. They have emergency response. They have court sections. We have as well, but they have more court sections, more court programming. When you look at the size of our service and you compare us to the Thunder Bay Police Service, there is a lot of disparity there. We should have the same services as our counterpart just on Balmoral Street, but we don't have it.

When I say that the first nations policing program is outdated, we should be able to have these services within our police service delivery, but we don't because of the terms and conditions of the first nations policing program. Again, like you heard from our legal counsel, it is very restricted.

[Eric Melillo, Conservative, Kenora, ON]

Do you feel there is still an opportunity to work within the framework and the system that has been created, or would you suggest working towards a new arrangement?

[Chief Roland Morrison]

With the federal government's announcement to make first nations policing an essential service, all the chiefs of police welcome this, but, to be honest, I'm not holding my breath for it. I'm not. It's going to take some time to get this legislation in place. With the consultation that has to occur, it's going to take time to update this program. It is.

We welcome the money that's been announced for first nations policing programs; however, when you look at the money that's been announced, and there's a lot of it, we still have to apply for this funding. Why are we applying for core function policing when it should already be available in our agreements? That's what is hindering our services.

The restrictiveness of the terms and conditions is what is restricting us. If we were to outfit all these programs or what we're doing onto the OPP, they would probably be able to get this money because of their access to dollars, but for us, we have to write proposals and business cases and apply for funding. Do we get it? Sometimes we do and sometimes we don't.

Not only do we have our own funding agreement, we also have several bilateral agreements. I have to praise my finance department for keeping track of all the reporting requirements for all these bilateral agreements that we have just to ensure that we can provide a service to our communities.

[The Chair, Liberal, Bob Bratina]

Thanks very much. That's pretty well the six minutes.

Our next committee member is Pam Damoff.

Please go ahead.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Sorry, Chair, I didn't realize I was up just yet.

[The Chair, Liberal, Bob Bratina]

Sorry, that's what I have on my list.

[Lenore Zann, Liberal, Cumberland—Colchester, NS]

I thought it was supposed to be me. I'm ready to go. Thanks.

Mr. Falconer, what you proposed was very interesting regarding the first nations policing program policy of 1996. The mandate letters for the Minister of Public Safety and Emergency Preparedness and the Minister of Indigenous Services Canada refer to co-developing a legislative framework that recognizes first nations policing as an essential service, as was already said.

Many of the calls for justice from “Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls” relate to justice and policing. Specifically the call for justice 5.4 states:

We call upon all governments to immediately and dramatically transform Indigenous policing from its current state as a mere delegation to an exercise in self-governance and self-determination over policing. To do this, the federal government's First Nations Policing Program must be replaced with a new legislative and funding framework, consistent with international and domestic policing best practices and standards, that must be developed by the federal, provincial, and territorial governments in partnership with Indigenous Peoples.

Could this new legislative framework work? What do we need in order to address the issue of missing and murdered indigenous women and girls in a sustainable way?