Honourable senators, I want to acknowledge that the Parliament of Canada is on the unceded, unsurrendered territory of the Algonquin and Anishinaabe First Nations.

Some time ago, Senator McCallum introduced Bill S-271, An Act to amend the Royal Canadian Mounted Police Act and its interconnected companion Bill S-272, An Act to amend the Director of Public Prosecutions Act. I urge all senators to review her speeches, which provide comprehensive analysis and a sound rationale for adopting this bill which, after consulting with First Nations experts, I am pleased to support.

The inherent sovereignty of Indigenous peoples is recognized in the Constitution of Canada, yet after more than 140 years, most First Nations are governed under the Indian Act, unless they have successfully negotiated viable self-government. The Indian Act establishes a limited form of local administration but does not take into account the specific circumstances of individual communities. In contrast, self-governing First Nations can make their own laws and policies and have decision-making power in a broad range of matters. This includes matters internal to their communities and integral to their cultures and traditions.

The intent of this bill and its companion, Bill S-272, is to redress a legal quandary that has arisen on the enforceability, or perceived unenforceability, of laws created by self-governing First Nations that do not fall under the umbrella of the Indian Act. Bill S-271 addresses issues of policing and enforcement of First Nations law, and Bill S-272 addresses the public prosecution of these laws.

Colleagues, if any local government in this country enacted laws for the governance of their community only to find that these laws were essentially ignored by police forces — no charges laid and no prosecutions in court — how long do you suppose that such a situation would be permitted to continue? Would it be decades? Uh, no.

Grand Chief Garrison Settee from Manitoba Keewatinowi Okimakanak Inc., or MKO, told a parliamentary committee in the other place:

First Nation bylaws . . . have not been enforced by policing authorities or prosecuted for 25 years in Manitoba. . . .

This bill proposes two simple yet impactful amendments to the Royal Canadian Mounted Police Act, or the RCMP Act. First, it adds the term “First Nation law” to the definitions. It is not a new creation; it has already been defined in legislation, specifically in the Framework Agreement on First Nation Land Management Act:

. . . a law that is enacted by a First Nation in accordance with the Framework Agreement and the land code of that First Nation.

Second, it amends the RCMP Act, enumerating the duties of RCMP peace officers in section 18 which states:

It is the duty of members who are peace officers, subject to the orders of the Commissioner,

(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody . . . .

The amendment to section 18 proposed in this bill adds “First Nation laws” to the list of federal and provincial laws that the RCMP is empowered and obliged to enforce. Thus, the amended text would read:

. . . the prevention of crime and of offences against the laws of Canada, the laws in force in any province in which they may be employed and First Nation laws . . . .

Honourable colleagues, enforcement of law by First Nations on their lands is key to self-determination and self-government. Recent decades produced legislation in Canada to redress structural failings of the Indian Act, to repeal its antiquated provisions, to modernize government-Indigenous relations and to recognize and enhance First Nations autonomy and self‑governance. Here are just three examples.

First, the Framework Agreement on First Nation Land Management is a First Nations-developed and First Nations-led government-to-government agreement signed by 13 First Nations and Canada on February 12, 1996. It intended to create new and enhanced law-making authorities to support the self-determination of First Nations, principally by replacing 44 sections of the Indian Act with First Nations laws through a community-developed and approved land code, initially as Bill C-49, the First Nations Land Management Act in 1999, which was replaced by the more comprehensive Framework Agreement on First Nation Land Management Act in 2022.

The framework agreement expanded the range of autonomous powers that First Nations could exercise, no longer leaving them at the discretion of the Governor-in-Council or minister. Once a signatory to the framework agreement, a First Nation is empowered to create a land code that outlines how the community will work together to develop laws and policies for governing and managing their reserve lands and resources.

As of November 2024, there are 213 First Nations signatories to this framework agreement, of which 122 have enacted their own land codes.

Second, Bill C-428, the Indian Act Amendment and Replacement Act of 2014 eliminated the prerequisite of the minister’s oversight in regard to the submission, coming into force and disallowance of bylaws, which is to say that it was intended to grant to First Nations the autonomy and responsibility over the development, enactment and coming into force of bylaws and the day-to-day governance of their communities.

Unfortunately, despite the intent of Parliament to enhance the self-determining law-making powers of First Nations, Bill C-49 and Bill C-428 have actually created “stranded regimes” of First Nations laws that are not enforced by the RCMP and have not been subject to prosecution by the Public Prosecution Service of Canada.

To quote from Chief Robert Louie and Chief Keith Blake of the First Nations Lands Advisory Board while appearing in the other place:

Many First Nations have achieved tremendous success in governing lands under the Framework Agreement, leading a revolutionary change with advances in law making, retaking control over lands and the environment, dramatic changes in finances and taxation, multi-million-dollar economic projects, and so much more. Despite this success, there is immense frustration over the difficulties we face with enforcement of First Nation laws. Self-government cannot adequately function without enforcement of laws.

They continued, “Freedom from the inadequate Indian Act is meaningless if First Nation laws have no traction.”

Before giving my third example, I am moved to note the tributes yesterday honouring Senator Murray Sinclair — known now by his spirit name, Mazina Giizhik-iban — and his role in securing Bill C-15, committing Canada to implement the principles of the United Nations Declaration on the Rights of Indigenous Peoples. Articles 18, 19 and 20 of this declaration commit Canada to honouring the First Nations right to decision-making powers in accordance with their own procedures, as well as to maintain and develop their own Indigenous decision-making institutions.

Article 26 of the declaration requires states to do the following:

. . . give legal recognition and protection to these lands, territories and resources . . . with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Colleagues, in the course of carrying out their responsibilities, police officers are daily called upon to exercise sound judgment in how best to fulfill their mandated duties. Each situation is unique. Each requires careful judgment on how to resolve conflict. In considering whether or not to lay charges, officers use their discretion to weigh factors, such as the nature of offence, safety, socio-economic factors, victim’s wishes, alternative paths of de-escalation or conflict resolution. But a different reality on the ground was described by witnesses before the parliamentary committee in the other place. The Tla’amin Nation noted that:

The Royal Canadian Mounted Police (RCMP) often decline to enforce Treaty or Land Code Indigenous government’s laws because they are of the opinion that these are akin to ‘municipal bylaws’. This interpretation is incorrect as these are laws;

Representatives of the K’ómoks First Nation gave an account of RCMP refusing to enforce First Nations land code trespass laws:

The RCMP said they could not . . . charge . . .

— offenders —

. . . under the land code offence. . . . as our laws were not “real laws”. The Crown would not prosecute as it didn’t recognize our laws or the authority we had to create these laws. . . .

Chief Louie, speaking on behalf of the Lands Advisory Board, representing more than 100 First Nations with enacted land codes, summarized the situation:

Many land code First Nations have faced refusal from police forces when they ask for help, with police forces expressing concerns regarding validity of land code laws, concerns about potential liability of police officers, and uncertainty regarding who will prosecute laws if charges are laid. It has been difficult to this point to reach agreement with either federal or provincial prosecutors to tackle First Nation laws under the Framework Agreement. . . .

Some RCMP representatives reinforced his points in testimony to the parliamentary committee in the other place. RCMP S/Sgt. Ryan How noted:

After 2014, we weren’t able to enforce the bylaws anymore, and that caused an immediate friction with all of the police, who were seen as the ones who suddenly stopped. It was perceived as our decision. . . .

He continued, saying:

My message to the first nation was that the RCMP is standing with you. We support you and we want this to happen; we just can’t enforce it until there’s prosecution.

Such evidence is reinforced by the research and advocacy of Indigenous law experts and academics. To quote Indigenous law expert Nick Sowsun:

From the perspective of a police force, when facing a request to enforce a forced removal from a reserve, the Police Chief or Detachment Commander must consider whether it wishes to allocate the time and resources to a law that has no chance of implementation because there is no provincial/territorial court that recognizes it. Many police forces view Indian Act by-laws as not having the same legitimacy as federal, provincial/territorial or municipal law, and as not being worth the liability risk and resource expense required to enforce them.

Enforcement and prosecution of federal laws fall under the remit of the Public Prosecution Service of Canada, or PPSC, a national independent prosecuting authority for federal offences that provides legal advice to law enforcement officials. PPSC officials advised the House committee that PPSC only prosecutes bylaws that have been officially reviewed, but there is no mandatory departmental review of First Nations land code laws. Guess what doesn’t get reviewed.

Chief Keith Blake adroitly summed up this Catch-22:

Most jurisdictions across the country do not recognize or prosecute nation-legislated offences. The challenge most indigenous communities face in this country is the refusal or the reluctance to have provincial crown prosecutors or federal prosecutors undertake the prosecution of these nation-legislation cases.

Colleagues, law enforcement and prosecution are two separate entities, yet they directly impact one another and must routinely rely on each other to carry out their objectives in an interdependent relationship. However, this model has failed First Nations historically, for generations, resulting in the stranded regimes of First Nations laws. Simply put — it’s a big mess.

The causes of this legislative and bureaucratic mess are known. Solutions are available. What is lacking is political leadership, and this is why Bill S-271 and Bill S-272 are before you now. The Indian Act itself does not specify whether the provinces and territories, federal government or First Nations themselves are responsible for prosecuting bylaw infractions. Lack of coordinated federal, provincial and territorial leadership on this issue has led to a situation where often, no federal, provincial or territorial government chooses to respect First Nations laws.

Colleagues, this is a complex issue. The challenges and obstacles to a clear solution require proper scrutiny, which is exactly what Senate committees offer. I commend Senator McCallum for supporting First Nations across the country who are struggling to protect their communities. Please help move Bill S-271 forward for further study. Thank you. Meegwetch.

Yes.

Thank you very much for the question and the information, Senator Boniface. I would agree. In my next speech, I will reference a similar operation in Manitoba. Thank you.