Police refusing to enforce First Nations bylaws must come to an end says Indigenous Bar Association president
Posted: Thu Apr 03, 2025 8:28 pm
The president of the Indigenous Bar Association says steps need to be taken “immediately” to address “the chronic over-policing and under-policing within Indigenous communities across Canada.”
“It’s a paradox a lot of Indigenous communities have been dealing with for decades now,” says Drew Lafond. “We know that going back as far as the Manitoba Justice Inquiry that First Nations are one of the few populations in Canada that have to deal with this dichotomy of being racially profiled, overpoliced, over-represented in the Justice system, yet paradoxically at the same time having no support from law enforcement agencies for the enforcement of their own laws.”
Lafond calls the violence and trespass within First Nations communities “endemic.”
His comments come after the Heiltsuk First Nation in B.C. made news last month when it launched a landmark Charter challenge against the RCMP for not enforcing its bylaws. The action stems from Heiltsuk’s frustration with RCMP not being there when called upon, which the nation feels has opened the door to drug dealers and other criminals.
As yet, the Attorney General’s office, representing the RCMP, has not filed a Statement of Defence with B.C. Superior Court.
A statement by John Brewer, Assistant Commissioner with BC RCMP Criminal Operations-Core Policing says because of the court action, they are limited in what they can say.
“We are aware that the claim on behalf of members of the Heiltsuk Nation was filed and a formal response will be provided through the courts, so we will limit our comments accordingly,” the statement says.
“The RCMP has been actively engaged in discussions around band by-law enforcement in our province for many years. Our efforts, as it relates to band by-laws, are guided by the law, training, case law and best practises. The Bella Bella RCMP’s response and police service efforts are not limited to by-law matters,” the statement continues.
“Last year the detachment managed over 800 files, including the Criminal Code, Motor Vehicle Act, and Controlled Drugs and Substances Act related cases, for the detachment area. We are committed to addressing local safety and security concerns and will remain open to continuing the dialogue about police service delivery in the community.”
According to one legal expert, while the Heiltsuk Nation’s Charter challenge against the RCMP may seem an extreme step, he’s surprised no one has taken on the issue sooner.
“It’s an unfortunate reality this is getting pushed before the courts because a political or policy-based solution hasn’t been reached. But it’s not surprising because it has been well known now for decades,” says Ben Ralston, assistant professor at the University of Saskatchewan school of law.
“(Heiltsuk) have really linked it to a change in the Indian Act in 2014, but the reality is, you can look back to older commissions of inquiry, including the Royal Commission on Aboriginal Peoples in the ‘90s all pointing to the same set of issues around enforcement under the Indian Act, and the lack of adequate tools there.”
Ralston says some of the law-making tools under the Indian Act have been re-invigorated in the last 30 years to allow First Nations to use them for more self-determined purposes, but says “there are systemic reasons why they’re not often enforced in practice.”
“One example is, the Indian Act allows for the appointment of Justices of the Peace who could hear disputes of breaches of band bylaws, (but) since about 2003, the federal government has simply declined to appoint any further Justices of the Peace under that provision.”
Ralston says issues that aren’t criminal in nature should be enforced by some kind of bylaw enforcement officer similar to what a local government might have.
“But, there’s no ticketing regime to deal with anything there, short of a very complex court process, nor is there any finding for the purpose of enforcement,” Ralston says.
He says there’s no doubt that the Indian Act provides First Nations the right to pass bylaws.
“So, here’s where the rub sort of emerges. Generally, there’s not a good reason for widespread doubting of the validity of these bylaws or laws,” Ralston says. “What it comes down to is where these bylaws exist, you will have resistance by police on a few different grounds.”
“One ground would be police don’t see it as their job to enforce bylaws. Their paradigm for that is municipal bylaws.
But, Ralston claims there’s a bigger systemic factor at play in why law enforcement officers don’t lay charges when a bylaw is breached.
“Police don’t want to charge anyone for alleged offences that no one’s going to prosecute,” Ralston says. Police to a great degree, are quite autonomous from the provincial/federal government, and then on top of that, you have the prosecutors.”
“They have a level of autonomy through independence from the government proper, where they also get to choose, or exercise discretion, is how we describe it legally, over what gets prosecuted and what does not.”
That has led to some First Nations pursuing private prosecutions against bylaw violators. But, it can be costly to mount such action.
The K’ómoks First Nation said lack of support from RCMP and Crown prosecutors in ousting trespassers in 2018 led to them incurring $150,000 in costs for a private prosecution. The Provincial Court of B.C. ruled in its favour, allowing the First Nation to successfully fine and ban the trespassers.
Last year, K’ómoks appointed Marion Buller its first Justice of the Peace, a move it says will ensure “that we won’t face such legal challenges again and we will continue building a legal process that reflects the needs and values of our community.”
In June, 2023, Manitoba Keewatinowi Okimakinak (MKO), Manitoba RCMP and the Public Prosecution Service of Canada (PPSC) worked together to broaden a protocol first introduced in response to the COVID pandemic. The protocol recognizes “the responsibility of RCMP officers to enforce local by-laws enacted by First Nation communities in Northern Manitoba…,” according to the 2023 MKO news release.
APTN News reached out to the Public Prosecution Service of Canada (PPSC) for comment on why Crown prosecutors are not taking charges laid under First Nations bylaws forward, but they did not answer that question, instead sending a statement regarding the MKO protocol which it was party to.
“In addition to the Manto Sipi Cree Nation, two more MKO-affiliated First Nations (the York Factory and Northlands Denesuline First Nations) have recently signed protocol agreements under the pilot project that allow the PPSC to prosecute their Indian Act intoxicants bylaws,” the Service says in its emailed statement to APTN.
In B.C., one group is trying to turn that around. The B.C. First Nations Justice Council, says after five years in operation, it’s starting to see results. Chair Kory Wilson says a key piece they’re still developing but hope to pilot is a “police accountability” unit.
“We would be presenting individual complaints and concerns as they come in,” Wilson says. This area is under development but there is an incredible need for it.”
Most provincial police watchdog agencies across the country which investigate events where serious injury or deaths may have been caused by police are made up of retired officers.
Read More: https://www.aptnnews.ca/national-news/p ... president/
“It’s a paradox a lot of Indigenous communities have been dealing with for decades now,” says Drew Lafond. “We know that going back as far as the Manitoba Justice Inquiry that First Nations are one of the few populations in Canada that have to deal with this dichotomy of being racially profiled, overpoliced, over-represented in the Justice system, yet paradoxically at the same time having no support from law enforcement agencies for the enforcement of their own laws.”
Lafond calls the violence and trespass within First Nations communities “endemic.”
His comments come after the Heiltsuk First Nation in B.C. made news last month when it launched a landmark Charter challenge against the RCMP for not enforcing its bylaws. The action stems from Heiltsuk’s frustration with RCMP not being there when called upon, which the nation feels has opened the door to drug dealers and other criminals.
As yet, the Attorney General’s office, representing the RCMP, has not filed a Statement of Defence with B.C. Superior Court.
A statement by John Brewer, Assistant Commissioner with BC RCMP Criminal Operations-Core Policing says because of the court action, they are limited in what they can say.
“We are aware that the claim on behalf of members of the Heiltsuk Nation was filed and a formal response will be provided through the courts, so we will limit our comments accordingly,” the statement says.
“The RCMP has been actively engaged in discussions around band by-law enforcement in our province for many years. Our efforts, as it relates to band by-laws, are guided by the law, training, case law and best practises. The Bella Bella RCMP’s response and police service efforts are not limited to by-law matters,” the statement continues.
“Last year the detachment managed over 800 files, including the Criminal Code, Motor Vehicle Act, and Controlled Drugs and Substances Act related cases, for the detachment area. We are committed to addressing local safety and security concerns and will remain open to continuing the dialogue about police service delivery in the community.”
According to one legal expert, while the Heiltsuk Nation’s Charter challenge against the RCMP may seem an extreme step, he’s surprised no one has taken on the issue sooner.
“It’s an unfortunate reality this is getting pushed before the courts because a political or policy-based solution hasn’t been reached. But it’s not surprising because it has been well known now for decades,” says Ben Ralston, assistant professor at the University of Saskatchewan school of law.
“(Heiltsuk) have really linked it to a change in the Indian Act in 2014, but the reality is, you can look back to older commissions of inquiry, including the Royal Commission on Aboriginal Peoples in the ‘90s all pointing to the same set of issues around enforcement under the Indian Act, and the lack of adequate tools there.”
Ralston says some of the law-making tools under the Indian Act have been re-invigorated in the last 30 years to allow First Nations to use them for more self-determined purposes, but says “there are systemic reasons why they’re not often enforced in practice.”
“One example is, the Indian Act allows for the appointment of Justices of the Peace who could hear disputes of breaches of band bylaws, (but) since about 2003, the federal government has simply declined to appoint any further Justices of the Peace under that provision.”
Ralston says issues that aren’t criminal in nature should be enforced by some kind of bylaw enforcement officer similar to what a local government might have.
“But, there’s no ticketing regime to deal with anything there, short of a very complex court process, nor is there any finding for the purpose of enforcement,” Ralston says.
He says there’s no doubt that the Indian Act provides First Nations the right to pass bylaws.
“So, here’s where the rub sort of emerges. Generally, there’s not a good reason for widespread doubting of the validity of these bylaws or laws,” Ralston says. “What it comes down to is where these bylaws exist, you will have resistance by police on a few different grounds.”
“One ground would be police don’t see it as their job to enforce bylaws. Their paradigm for that is municipal bylaws.
But, Ralston claims there’s a bigger systemic factor at play in why law enforcement officers don’t lay charges when a bylaw is breached.
“Police don’t want to charge anyone for alleged offences that no one’s going to prosecute,” Ralston says. Police to a great degree, are quite autonomous from the provincial/federal government, and then on top of that, you have the prosecutors.”
“They have a level of autonomy through independence from the government proper, where they also get to choose, or exercise discretion, is how we describe it legally, over what gets prosecuted and what does not.”
That has led to some First Nations pursuing private prosecutions against bylaw violators. But, it can be costly to mount such action.
The K’ómoks First Nation said lack of support from RCMP and Crown prosecutors in ousting trespassers in 2018 led to them incurring $150,000 in costs for a private prosecution. The Provincial Court of B.C. ruled in its favour, allowing the First Nation to successfully fine and ban the trespassers.
Last year, K’ómoks appointed Marion Buller its first Justice of the Peace, a move it says will ensure “that we won’t face such legal challenges again and we will continue building a legal process that reflects the needs and values of our community.”
In June, 2023, Manitoba Keewatinowi Okimakinak (MKO), Manitoba RCMP and the Public Prosecution Service of Canada (PPSC) worked together to broaden a protocol first introduced in response to the COVID pandemic. The protocol recognizes “the responsibility of RCMP officers to enforce local by-laws enacted by First Nation communities in Northern Manitoba…,” according to the 2023 MKO news release.
APTN News reached out to the Public Prosecution Service of Canada (PPSC) for comment on why Crown prosecutors are not taking charges laid under First Nations bylaws forward, but they did not answer that question, instead sending a statement regarding the MKO protocol which it was party to.
“In addition to the Manto Sipi Cree Nation, two more MKO-affiliated First Nations (the York Factory and Northlands Denesuline First Nations) have recently signed protocol agreements under the pilot project that allow the PPSC to prosecute their Indian Act intoxicants bylaws,” the Service says in its emailed statement to APTN.
In B.C., one group is trying to turn that around. The B.C. First Nations Justice Council, says after five years in operation, it’s starting to see results. Chair Kory Wilson says a key piece they’re still developing but hope to pilot is a “police accountability” unit.
“We would be presenting individual complaints and concerns as they come in,” Wilson says. This area is under development but there is an incredible need for it.”
Most provincial police watchdog agencies across the country which investigate events where serious injury or deaths may have been caused by police are made up of retired officers.
Read More: https://www.aptnnews.ca/national-news/p ... president/