Many difficulties encountered on First Nations are interconnected. Many problems come together to make First Nation laws difficult to enforce and prosecute. This, in turn, leads to problems in areas like health and resource management, as recent issues with COVID-19 have made clear in 2021. But what makes it so difficult to enforce them in the first place, and what remedies are available?
Why Is the Enforcement and Prosecution of First Nation Laws So Difficult?
The main problem with enforcing laws on First Nation lands is that many of them have gone unenforced for decades. Knowing the issues of enforceability, a lack of resources, and high officer, turnover,1 many First Nations communities can’t back them up.2 The Canadian system of justice, one seen as a foreign system in many communities, is imposed from above in such a way that makes specific by-laws hard to enforce – many concepts even defy translation into Aboriginal languages.3
Another issue is that not all First Nations are the same; trying to fit a uniform policing strategy into a wide range of communities is like fitting a square peg in a round hole. A review of the First Nations Policing Program (FNPP) found that Indigenous policing organizations recommend a much more expansive and holistic way of policing. Existing approaches emphasize traditional control that prioritizes detecting, apprehending, and pursuing charges against offenders.4
Many First Nations communities across Canada also don’t have their own police forces to have bylaws and band council resolutions enforced.5 To solve the difficulties enforcing by-laws, new approaches should not prescribe any particular policing models; rather, Indigenous police services should adopt their own unique approaches to meet the safety needs of their communities.6
Improving Self-Determination: What Is Bill C-15?
It is widely felt that passing a new law to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) will get First Nations closer to the self-determination necessary to adequately strengthen law enforcement. Bill C-15 was introduced in December after a previous version didn’t make it through the Senate before the 2019 election. It has the potential to change the way the Federal Government treats Indigenous rights and how communities want to engage with the work of implementing the Declaration into the Canadian legal system.7
The proposed law would require Ottawa to work with First Nations, Métis and Inuit to ensure that Canadian law is in harmony with the rights and principles found in UNDRIP, which Canada endorsed in 2010. This way, the Federal government can build a shared understanding of free, prior and informed consent with First Nations, Métis and Inuit into a new law to implement the United Nations Declaration on the Rights of Indigenous Peoples.8 Given our current circumstances, this could not come too soon.
By-law Enforcement And COVID-19
Bylaw enforcement is an important piece that many First Nations communities are struggling to focus on, especially during the COVID-19 pandemic.9 Since March 2020, the situation has deteriorated in many Aboriginal communities; in 2021, the problem grows worse, in part because of the difficulties in enforcing by-laws aimed at preventing outside infection. It’s particularly bad in Western Canada, where Indigenous people make up half the number of hospitalizations in some provinces.10
A recent drug bust made in the Mississauga First Nation at the beginning of February highlighted how criminal justice issues intersect with public health. Those apprehended were not from the Mississauga First Nation and came into the community from high-risk areas. In response to this incident and the risk of infection, the Mississauga First Nation removed all non-resident and non-band member access to residential areas. 11
In relation to another issue, a representative of the Chiefs of Ontario explained that “the goal is really to look long term and look at self-determination and inherent jurisdiction and, regardless of the source of a law, what are the issues for enforcement to make sure that we don’t keep encountering this issue.” When First Nations have neither the resources nor the Federal backing to enforce laws, we know that lives can be at stake.