Indigenous and Northern Affairs Committee on May 25th, 2021

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you, Mr. Chair.

My question is for Chief Louie again.

In your brief, you propose identifying the federal Attorney General as the lead minister responsible for leading the federal government's commitment to tackling the enforcement of laws. What concrete changes would this lead to?

[Chief Robert Louie]

Thank you very much, honourable member.

We believe the changes would be more immediate, more urgent, with the Attorney General directly involved. This is the ministry with perhaps the highest recognized designation, and I think it would command a lot more immediate attention, particularly as other attorneys general from each of the provinces are concerned and as the matter proceeds.

We believe that in itself gives a lot more credibility and more urgency to the situation. That's what we would hope to achieve by having the Attorney General directly involved at that level.

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Among the recommendations made in your brief, could you tell me which ones are an absolute priority?

[Chief Robert Louie]

We have several recommendations, and in our opinion they're all equally important.

Having the Canada indigenous justice strategy express commitment to tackling the enforcement of laws as a short-term priority is important. Having the federal Attorney General as the lead minister responsible for leading the federal government's commitment is important. Requiring the various departments and agencies to take a strong lead at the bureaucratic level and appointing ministerial representatives or senior bureaucrats with credibility on these matters is significant. Matrimonial real property laws require special consideration by Canada on the goals of protecting women and children. This is very significant.

The Indian Act legacy of environmental mismanagement and the understanding that it is woefully unregulated and underenforced and having support for enforcement of first nation environmental laws within broader strategies in environmental management concerns is absolutely critical. There is so much contamination that's taking place. This is a high area of concern and needs immediate attention—

[The Chair, Liberal, Bob Bratina]

We should leave it right there. I'm sorry. We have to move along to Ms. Blaney for two and a half minutes.

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

Thank you.

Chief Bill, you talked about having four full-time CSOs and two on call. I have just a couple of questions.

Do they patrol 24 hours a day? How do they manage the collaboration with the RCMP? You indicated that they fill a specific gap between the RCMP and the community needs. You talked about that a little, but how do they manage it? What sort of mechanisms do they have to make sure that this relationship, which sounds as though it is very collaborative, is successful?

[Chief Doris Bill]

At the beginning, we got real-time bylaw statistics from the RCMP. We really analyzed those statistics. We figured out when the peak hours were in our community. The CSOs' hours are built around those times. We review it every now and then as well.

In terms of the RCMP and the relationship with the CSOs, we had to figure out a way to build that relationship. The best way to do that was to just work alongside them. We were there whenever things happened. I think they just watched our CSOs and really, as our people began to gravitate towards them when serious things happened, they understood that there was something there.

We don't have any formal agreement or anything with the RCMP. We do have formal meetings with them. Through the letter of expectation, we sit down with the RCMP once a month. We also have different meetings through the inter-agency working group. We work out any issues that arise through those avenues.

I've watched the relationship with the CSOs just blossom. It's absolutely wonderful. The RCMP now will call on our CSOs when issues arise and they need help from our citizens, such as when they're looking for someone or something of that nature.

[The Chair, Liberal, Bob Bratina]

Thanks so much.

Mr. Schmale, you have five minutes.

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

Thank you very much, Chair.

This has been an amazing conversation today. There has been so much content here.

Maybe I'll pick up with our friends at the First Nations Lands Advisory Board. We were talking about the Indian Act and the challenges to, in some cases, life and safety on reserve. Maybe we can talk a bit more about that. If that were to be scrapped, what, if anything, would replace it, or what would need to come in to ensure a smooth transition?

[Chief Robert Louie]

Andrew, would that be something you'd want to tackle first?

[Andrew Beynon]

Well, maybe I could get a bit of clarification on the question.

I would start, though, by saying that land code laws assist in driving and supporting safety in the community. By dealing with trespassing, by dealing with problematic situations on reserve, overall community safety can increase. In the absence of enforcement systems, in the absence of a police response, in the absence of being able to find prosecutors, you have damage to the rule of law. As many of the witnesses have spoken about today, when you have a breakdown in the rule of law on such issues as trespass or matrimonial real property or violence or illegal dumping or disrespect for the law, it has a corrosive effect in terms of abiding by federal and provincial laws. I would suggest that it makes it more difficult for the RCMP and other police forces to uphold the rule of law with respect to federal and provincial laws.

I would suggest that what a lot of the witnesses have offered, and many of the submissions to this committee that underscored the importance of immediate action to solve this issue of enforcement of laws, is not only a matter of improving the respect for and compliance with first nation laws; it will have positive consequences beyond that in upholding the rule of law of Canada.

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

Perfect. Thank you very much for that.

I have a second question. I don't know who to direct it to. Maybe I'll just look at my screen to see whoever puts up their hand. It's about a number of potential solutions to the enforcement and policing issue on reserve. What has worked quite well in many cases in parts of Ontario is the restorative justice aspect.

I don't know if anyone would like to comment on that.

[Andrew Beynon]

That's an excellent, excellent question. Restorative justice is an approach that involves healing within the community and a focus on trying to resolve harm that has been caused. It very much reflects the culture and traditions of individual communities. There is no doubt that this is extremely important.

At the same time, a lot of what witnesses and submissions have dealt with is what I might call conventional or mainstream western justice, which focuses on offences, policing, prosecutions and punishment. What I would suggest to the committee is that in order for restorative justice to thrive, there has to be at the same time an avenue for dealing with conventional punishment-oriented justice available to first nations as well. Unfortunately, if some individuals think they can get away with ignoring first nation laws, they're probably going to ignore restorative justice efforts as well.

The last quick comment I would make about restorative justice is to say that it can work in partnership with the western legal system. If there's a well-understood, well-established system for policing, prosecution and going to the conventional courts, those judges have access, working with first nation partners, to restorative justice approaches. Maybe it's better not to punish an individual but instead to offer them an avenue to restorative justice and healing; but without an effective conventional system, too many individuals will thumb their noses at compliance with the law, whether it be through a restorative justice approach or a conventional approach.

[The Chair, Liberal, Bob Bratina]

Thank you very much. That takes us to Mr. Powlowski for five minutes.

[Marcus Powlowski, Liberal, Thunder Bay—Rainy River, ON]

This has been a very interesting study. We've seen this unanimity among chiefs from across Canada, who agree that it's been very difficult or impossible to enforce bylaws related to public health measures and control of COVID. In response, we have seen really a patchwork of approaches, with some chiefs preferring to use bylaws under the Indian Act while others have used the First Nations Land Management Act. PPSC entered into an agreement with some first nations in order to try to enforce the bylaws. Manitoba today has talked about, I believe, a protocol to enforce bylaws under the first nations policing program, and Chief Bill has CSO programs, so we see that every community has a different response. Chief Bill said each community is different, which is true.

I think many would say it's colonialist to impose solutions and that each community has to come up with its own approach to its problems, but I have to ask our witnesses what they say about this: Is it realistic for a community of 300 or 400 people to come up with a system of law enforcement and to come up with a system of dealing with their water problems, their transportation problems, and their housing problems? On this problem of enforcement, of laws in first nations, should there be a global solution for the whole country, or should this be a solution that is particular to each community? That's the first thing.

The second is that I think it was Chief Louie who stated that the use of the Indian Act is offensive. He doesn't want to use that. However, I would suggest that under section 107 of the Indian Act, there is a process to appoint justices of the peace to enforce bylaws made under the Indian Act. Although it may be offensive, I would suggest that the process of law-making is slower than continental drift, so it's going to take a fairly lengthy period of time to change the laws on policing. Wouldn't it be better, perhaps, to use the existing laws and to reinstitute the section 107 court?

I throw that out to all of you. Whoever wants to can start.

[Chief Robert Louie]

Mr. Powlowski, if I may, it's Robert Louie.

I want to just refresh people's thoughts here with regard to the force of law with regard to land codes.

We represent our constituents, who are self-governing. To look at the Indian Act, to rely on the Indian Act.... Any of the sections for governance are quite offensive.

With regard to our land codes and the way the legislation was set up by Parliament to recognize our communities as self-governing first nations, I remind you of subsection 15(1) of the land code, which says that a land code has a force of law, and judicial notice shall be taken of the land code in any proceedings from the date the land code comes into effect. That's very significant.

Also, it's coupled with subsection 20(3) of the land code legislation, which says that it “may provide for enforcement measures, consistent with federal laws...such as the power to inspect, search and seize and to order compulsory sampling, testing and the production of information.” Of course, the justices of the peace section, subsection 24(1), says that we “may appoint justices of the peace to ensure the enforcement of First Nation laws including the adjudication of offences for contraventions of First Nation laws.”

My point is that we have the authority. It was recognized by Parliament. What is lacking is the direction to all of the various ministries and to the provincial governments and so forth that these laws are valid and that they must be recognized, so that when laws are put in place, it's a matter of education and simply, in many respects, informing the policing authorities that they must respect them. There's paramountcy in the federal law, which this now has, so I think this is very important.

For us to rely on something that we do not have to rely on, especially under the Indian Act, is not acceptable to our land code self-governing communities.

[The Chair, Liberal, Bob Bratina]

Chief, thanks so much.

Members of the committee, we will have to suspend to do some business in camera with regard to other matters of the committee. In view of that necessity, I'm going to thank our witnesses and our committee members, because it's been just an excellent give-and-take and cross-examination. It's really impressive.

Witnesses, I wish that more Canadians could hear the kinds of presentations that we're hearing as committee members, beyond the simple confrontations at blockades when there's anger and misinformation going on. It's so impressive to hear the studied points of view, rather than the simple “Darn it, why is this happening?” situation that is beloved of the media but really doesn't help sometimes to move issues forward. I want to thank you all for that very valuable testimony.

I'm going to ask for a suspension as we leave the meeting and then come back again to reconvene in camera.

Thanks to everybody once again. This meeting is suspended.

[Proceedings continue in camera]