Honourable senators, I appreciate the opportunity to complete my speech from yesterday. I’ll try not to repeat too much of what I said then.

I’m pleased to continue my remarks in support of Bill S-272, An Act to amend the Director of Public Prosecutions Act. This bill links with Bill S-271, An Act to amend the Royal Canadian Mounted Police Act, to which I spoke yesterday. These bills would strengthen First Nations self-governance and resolve some long-standing legal and technical barriers to effective enforcement of First Nations laws and bylaws, which are enacted at the local level to protect their peoples and foster communities, making them safer for their citizens, especially their children.

Unfortunately, despite the intent of Parliament to enhance the self-determining law-making powers of First Nations, unintended consequences emanating from some of these bills — for example, Bill C-49, bringing into effect the Framework Agreement on First Nation Land Management Act, and Bill C-428, the Indian Act Amendment and Replacement Act of 2014 — have created what has come to be called “stranded regimes” of First Nations laws that are neither enforced by the RCMP nor prosecuted by the Public Prosecution Service of Canada, or PPSC.

Chief Keith Blake of the First Nations Lands Advisory Board, which represents more than 100 First Nations that have enacted land codes, jointly sums up the jurisdictional crisis:

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.

As illustrated in my earlier remarks on Bill S-271, the causes and obstacles to proper, safe and equitable enforcement of First Nations laws are myriad, but two principal impediments to enforcement of First Nations laws, identified in the other place by the Standing Committee on Indigenous and Northern Affairs, are the lack of enforcement by police services and a near-total absence of prosecution in the courts.

Indigenous law expert Nick Sowsun draws clear conclusions:

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.

Prosecution of federal laws falls under the remit of the Public Prosecution Service of Canada, which is a national independent and accountable prosecuting authority whose main objective is to prosecute federal offences and provide legal advice and assistance to law enforcement.

During its study of this issue, the House of Commons committee was informed by PPSC officials that they only prosecute bylaws that have been officially reviewed. Specific to First Nations, PPSC only reviews laws under the Indian Act. The purpose of such a review is to check for compliance with the Charter of Rights and Freedoms. This is ironic, considering that not all sections of the Indian Act itself are compliant with the Charter.

Following the removal of the minister’s power to disallow a bylaw in 2014, First Nations laws need not be submitted anymore to the minister for approval. So PPSC stated that it also, by consequence, removed mandatory departmental review of First Nations land code laws. It just isn’t done anymore, and that has led to the lack of enforcement and prosecution of laws enacted by First Nations.

Chief Keith Blake adroitly sums up this Catch-22:

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.

In moving this legislation, Senator McCallum explained how Bill S-272 is necessary to clarify and conclusively confirm that the Public Prosecution Service of Canada has the jurisdiction and the mandate to initiate and conduct prosecutions of summary conviction offences under First Nations law as well as any appeal or other proceeding related to such a prosecution on behalf of the First Nation that made or enacted that law.

Bill S-272 will amend the Director of Public Prosecutions Act to include the following definition of First Nations law:

(a) a bylaw made under the Indian Act;

(b) a First Nation law as defined in subsection 2(1) of the Framework Agreement on First Nation Land Management Act; or

(c) a law enacted by a council, government or other entity that is authorized to act on behalf of a First Nation under a self-government agreement implemented by an Act of Parliament. . . .

Law enforcement and prosecutors are two separate entities of our justice system that directly impact one another and must rely upon each other to carry out their objectives in an interdependent relationship, but this model has failed First Nations for generations. The current dysfunction that has resulted in the stranded regimes of First Nations law is but another tragic failure that Parliament did not intend, but it’s a big mess that Parliament must fix because it is costing Indigenous lives.

Before I speak on more technical aspects of this bill, please join me in widening our contextual lens to reach across the street, outside this chamber, to the annual winter meeting of the Assembly of First Nations in session for its final day this year. Since August, just months ago, 10 First Nations people have been killed by police. On Monday, National Chief Cindy Woodhouse Nepinak called for a resolution — which the Assembly of First Nations passed on Tuesday — demanding Canada call a national inquiry into systemic racism in policing to address what they’re calling “one inter-related epidemic” of violence and death.

This epidemic likely began at the community level where First Nations laws enacted by First Nations leaders to protect their communities are now seldom enforced or prosecuted. Both logic and evidence should prompt us, as parliamentarians, to listen to these leaders when they have made it so clear that they need Bill S-271 and Bill S-272 to protect their communities, especially their children.

As with Bill S-271, the amendments in Bill S-272 provide a level of needed clarity and can serve to loosen interjurisdictional blockage, enhance coordination between enforcement and prosecutorial arms of our justice system, and open a space for deeper dialogue between First Nations and governments to seek more permanent and comprehensive solutions to this lamentable situation.

With appreciation to Michael Anderson, consultant to the Manitoba Keewatinowi Okimakanak, or MKO, please allow me to summarize what is at stake here. Although a bylaw enacted by a chief and council pursuant to sections 81(1) and 85.1 of the Indian Act is one of the “laws of Canada,” and thus is a matter clearly under the jurisdiction of the Attorney General, the chief federal prosecutor in Manitoba advised the MKO First Nations on June 1, 2023, that bylaws enacted pursuant to the Indian Act had not been enforced in Manitoba for 30 years and, by implication, not prosecuted.

With the repeal by Parliament of the ministerial power of disallowance through the coming into force of the Indian Act Amendment and Replacement Act in 2014, all Indian Act bylaws enacted after December 16, 2014, are first presumed by police and prosecutorial authorities to be statutorily invalid and Charter non-compliant, as there is no longer any “appropriate federal authority” to review and potentially confirm or disallow a bylaw.

Thus, although the sponsor of Bill C-428, the Indian Act Amendment and Replacement Act, described the purpose of the bill as supporting the self-determining law-making powers of First Nations, this is the legislation that, in fact, created the stranded regimes of First Nations laws.

Earlier yesterday, Mr. Anderson reminded me that MKO takes the position that the refusal of police to enforce and the refusal of prosecutors to prosecute Indian Act bylaws that had been enacted following the coming into force of the Indian Act Amendment and Replacement Act amounts to police and government prosecutorial officials mindfully acting to frustrate the will of Parliament. It’s also MKO’s assessment that the law-making powers of First Nations pursuant to Bill C-61, the First Nations clean water act, as well as Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families — which senators will recall well — will similarly result in more stranded regimes of laws enacted by First Nations, which are not recognized by police as enforceable and not recognized by Crown prosecutors as being subject to prosecution. It is to address and resolve the foundational reasons for these stranded regimes of First Nations laws that Bill S-271 and Bill S-272 are directed.

Honourable senators, I invite you to move this bill to committee along with Bill S-271. They are both worthy of more thorough study with the skills and care that senators can bring to much-needed legal changes to respect and support First Nations sovereignty in protecting their communities and their citizens, including their children and youth.

Thank you. Meegwetch.

I agree.