Moved second reading of Bill S-223, An Act to amend the Royal Canadian Mounted Police Act.

She said: Honourable senators, I want to thank everyone who is here. We’re going into a deep topic.

Honourable senators, I am pleased to rise today to move second reading of Bill S-223, An Act to amend the Royal Canadian Mounted Police Act.

Bill S-223 deals with the enforcement of First Nations laws while its sister bill, Bill S-224, which I will speak to shortly, deals with the prosecution of First Nations laws. As the subject matter of these two bills are so intimately braided, their individual subject matters are discussed together in many of the quotes I will share.

In speaking to senators, I understand that the lived experience of facing unrelenting oppression from the federal government is an area of which many were not aware. For me, my life has been determined by the federal government from the time I was born.

This area of Canadian history was not shared with Canadians. I thank senators for letting me know that and for listening and hearing deeply because that is when we learn compassion, and I have learned compassion in this chamber.

I will start with a brief history of enforcement and prosecutions on reserves in Canada.

In the 1991 Report of the Aboriginal Justice Inquiry, the concluding words state:

Canada’s treatment of its first citizens has been an international disgrace. To fail to take every needed step to redress this lingering injustice will continue to bring tragedy and suffering to Aboriginal people, and to blacken our country’s name throughout the world. By acting now, governments can give positive expression to the public support and good will we have encountered from Manitobans during the past three years.

In November 1999, the Manitoba government appointed the Aboriginal Justice Implementation Commission, which stated:

Manitoba’s Aboriginal people have known three different justice regimes. The first, a product of custom, negotiation and experience, developed before the arrival of Europeans during the centuries in which only Aboriginal people inhabited this part of the Americas. The second, which commenced with the arrival of Europeans in the 17th century, did not end Aboriginal law, but merely added English, Scottish and French complements in parallel with it. The third began with Manitoba’s entry into Confederation in 1870. Although it has remained essentially unchanged to the present, this third regime has had a devastating impact on Manitoba’s Aboriginal people during the last four decades.

Honourable senators, the Royal Proclamation of 1763 set out a three-cornered system of governance for British North America, combining the imperial Crown, its colonies and those “. . . Nations or Tribes of Indians . . . .” In 1836, Upper Canada’s attorney general Robert Jameson gave evidence of the continuation of that constitutional norm. First Nations, he wrote, “. . . have within their own communities governed themselves by their own laws and customs.”

In short, First Nations were self-governing within their recognized jurisdictions, including all internal affairs. They remained so until the Indian Act of 1869. First Nations’ order of government was sacrificed to Sir John A. Macdonald’s “. . . proclaimed assimilative duty.”

In the 1857 Gradual Civilization Act, any Indian judged to be educated, free from debt and of good moral character could apply to receive land within the colony and the “rights accompanying it.” This was a shift from community development to preparing individuals for enfranchisement. The government considered most problematic the insistence of First Nations holding land in common. The government stated that the refusal of band councils to authorize individual ownership destroyed “industriousness,” which was the basis of all progress.

Honourable senators, in 1860, the fledgling Province of Canada assumed control of the Indian Affairs portfolio from the British imperial government. In 1867, with the British North America Act, the imperial Crown gave way to the federal, the colonies became provinces, and the self-governing First Nations remained — for a brief period — as the third order of government.

In 1869, An Act for the gradual enfranchisement of Indians, the better management of Indian Affairs indicated its dedication to assimilation. The two features — enfranchisement and giving communities the benefit of municipal government — meant that the act abolished traditional forms of government and replaced them with a male-only elective system largely under the control of the local Indian agent. And this happened in my lifetime. When I was born, there was an Indian agent there, and there was one there until I was 17. When I came out of residential school, I would go home for two months, and the agents were there dictating the lives of everyone.

With the Indian Act, 1876, Macdonald’s government stated that the phrase “Nations . . . of Indians” was no longer appropriate, for they saw Indians as children. They were akin to:

. . . “persons underage, incapable of the management of their own affairs” and, therefore, the government had to assume the “onerous duty of … guardianship.”

Through the Indian Act, it was spelled out in detail how First Nations would lose control of almost every aspect of their communities. Denial of self-determination was imposed through the act’s construction of an officially sanctioned “status Indian,” in effect creating the colonized Indian.

In 1887, John A. Macdonald stated:

The great aim of our legislation has been to do away with the tribal system and assimilate the Indian people in all respects with the other inhabitants of the Dominion as speedily as they are fit to change.

In 1920, Duncan Campbell Scott delivered his infamous speech, justifying many of his amendments to the Indian Act:

I want to get rid of the Indian problem. . . . Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department . . . .

Honourable senators, let’s move to the present day. Through a former Bill C-49, the First Nations Land Management Act, which received Royal Assent in 1999 and through a former Bill C-428, the Indian Act Amendment and Replacement Act, which received Royal Assent in 2014, Parliament intended to create new and enhanced law-making authorities to support the self-determination of First Nations.

One published official summary of Bill C-49 says that:

Bill C-49 would expand the range of powers that First Nations could exercise and no longer leave them at the discretion of the Governor in Council or Minister.

Meanwhile, a departmental summary of Bill C-428 states that:

Bill C-428 . . . eliminates the Minister’s oversight in regards to the submission, coming into force and disallowance of by-laws and gives First Nations the autonomy and responsibility over the development, enactment and coming into force of by-laws.

Despite the intent of Parliament to enhance the self-determining, law-making powers of First Nations, Bill C-49 and Bill C-428 have instead created what has come to be called “stranded regimes” of First Nation laws that are not enforced by the Royal Canadian Mounted Police and have not been subject to prosecution by the Public Prosecution Service of Canada, or PPSC.

Honourable senators, in the June 2021 report of the House of Commons Standing Committee on Indigenous and Northern Affairs, or INAN, entitled Collaborative Approaches to Enforcement of Laws in Indigenous Communities, the committee heard that since amendments to the Indian Act removed the minister’s power to disallow a bylaw in 2014, there is no mandatory departmental review of bylaws.

While the Public Prosecution Service of Canada only prosecutes bylaws that have been reviewed, Indigenous Services Canada now reviews draft bylaws for comment only. Essentially, the intended consequence of this 2014 amendment was to leave First Nations with an inability to enforce or prosecute the laws they had enacted, because there was not a new process put in place to address the review process that had been removed. Why wasn’t this amended in the bill, given that this came up numerous times in the INAN Committee?

Colleagues, since 2014 the Royal Canadian Mounted Police have continued to refuse to enact laws made by First Nations Chiefs and councils. First Nations cannot prosecute crimes and violations being committed in their communities. As an example, some of these crimes involve drug dealing, including intoxicants, yet First Nations are unable to evict and prosecute the drug dealers even when some of these dealers are not from the community where they are committing crimes of drug dealing. However, these dealers continue to be empowered to bring drugs and alcohol into these reserves with impunity. This is happening on my reserve right now. People are unable to do anything, and the RCMP won’t respond.

First Nations from coast to coast to coast are experiencing a crisis in public safety and well-being, largely driven by virtually uncontrolled drug dealing and bootlegging. The failure and refusal of the RCMP to enforce, and the failure and refusal of the PPSC to prosecute First Nation laws, including intoxicants prohibitions and trespass laws, are directly contributing to this crisis.

Honourable senators, in an April 4, 2023, CBC News article entitled “Chiefs welcome RCMP efforts to curb bootlegging in northern Manitoba, but say more needs to be done” with the byline “Manitoba RCMP say they’re helping remote First Nations communities enact local bylaws” it was reported that 11 northern First Nations in Manitoba, including God’s Lake, have recently declared states of emergency amid a range of social issues in their communities, including suspected drug-related deaths, suicides, inadequate emergency health and fire supports and concerns around substance use.

The article states:

Meanwhile, there has also been rising tension between RCMP and some communities.

The article continues:

Several communities like God’s Lake are attempting to enact local bylaws restricting or prohibiting drug and alcohol use, and have asked for more support from government and RCMP.

A 2023 RCMP news release stated that RCMP enforcement:

. . . “will continue as per the expressed wishes of community leadership” in communities that have their own drug and alcohol bylaws and “have asked to make enforcement a priority.”

However, Chief Hubert Watt takes issue with how the RCMP has characterized their response to communities that want help enacting local drugs and alcohol bylaws. He said:

I think they’re just saying that because more and more First Nations are coming out and saying that the RCMP are not very effective . . . [in northern] communities.

The aforementioned 2023 CBC article further states:

The First Nation wanted RCMP involved in mandatory searches of vehicles entering the community, but RCMP won’t proactively search every vehicle due to legal limitations, according to both Watt and Phillip Kanabee, a God’s Lake band councillor.

Kanabee said:

I’ve been fighting with the RCMP for the longest time to get them to enforce the bylaws. . . We try to work with RCMP in the community but . . . the partnership is not there.

The article continues:

Police also recognize that some community bylaws around drugs and alcohol have been in place for decades . . . .

Manitoba RCMP media relations spokesperson Tara Seel said in a statement that:

. . . our recent communication regarding enforcement in this area is in no way saying this is a new initiative.

She goes on to say:

. . . the RCMP, Crown prosecutors and other partners need to operate within the bounds of the provincial and federal laws — including the Charter of Rights and the Privacy Act — when investigating illegal distribution of drugs or alcohol.

Seel added:

. . . bootlegging enforcement has to be balanced with “a number of other public safety priorities,” including responding to violent crime.

Honourable senators, I have worked in God’s Lake for about six years as a dentist.

My own personal observation is that much of the violent crime stems from alcohol and drug abuse because of the lack of enforcement by the RCMP.

Colleagues, I spoke to Chief Hubert Watt previously on this issue, and he stated:

We have asked the RCMP to search for contraband every time the winter road opens, but they don’t do anything. The confiscation in March 2023 was a one-time event.

Chief Watt says if that were done all the time, imagine what they could have confiscated and the violence that could have been prevented.

The confiscation he was referring to took place in March 2023 on key roads heading into northern communities including Highway 6 and Provincial Road 373 as well as winter roads into God’s Lake Narrows, Island Lake and surrounding communities.

The RCMP said they seized 26 bottles of liquor from a single vehicle during the checkstop. They issued a total of 75 traffic tickets, executed four arrest warrants, charged one driver with impaired driving and another with trafficking under the Cannabis Act during that checkstop period.

The news release said that RCMP enforcement will continue as per the express wishes of community leadership in communities that have their own drug and alcohol bylaws and have asked to make enforcement a priority.

As Chief Watt stated that checkstop was a one-time event. It didn’t ever happen again.

While temporary measures were invoked to address COVID-19 and assist in enforcement of First Nations’ health protection bylaws, these measures did not and do not address the ongoing issue of why First Nations bylaws and laws are not being properly enforced in the first place.

Colleagues, I want to provide the statement made by Chief Heidi Cook from the Misipawistik Cree Nation in Grand Rapids to the House of Commons Standing Committee on Indigenous and Northern Affairs regarding the community’s experiences during an outbreak of COVID-19 in the winter of 2020-21:

During that time, it was expressed by members of our pandemic emergency response team, our health team and our enforcement team that we felt abandoned. We were struggling to control the spread. Our second wave reached 155 cases and close to 300 contacts. We all suffered personal fallout. I feel that we all had PTSD from the situation we found ourselves in.

We have not enacted any laws after the expiry of our emergency law. The decision was, basically, what good is the law if it’s not enforceable? As a result, we haven’t done anything since then.

People were coming into the community. They wanted the RCMP to stop people that didn’t live in the community from coming in because they were selling drugs. In fact, the RCMP refused to enforce despite the temporary emergency measures.

Evidence given on May 13, 2021, by Mr. Derek Yang, Director, Community Services, Tla’amin Nation, British Columbia, states:

The short story that we want to present is that self-determination is virtually meaningless without the authority and capacity to pass and enforce laws. Many federal and provincial laws, negotiating mandates, funding decisions and approaches to enforcement undermine or weaken first nation law enforcement rather than supporting and strengthening it.

Colleagues, the problems with enforcement and prosecution of First Nations laws were known in 1999, that is 26 years ago. Twenty-six years where they have not been allowed to maintain safety and security, and where they were led to believe there would be an ongoing, long-term debate on the matter, that discussion never took place.

Twenty years later, the COVID-19 pandemic illuminated the effects of the failure to enforce and prosecute, placing lives in danger over these many years.

I wanted to let you know that when we pass legislation, even those which are perceived as well-intentioned, we see that there are negative consequences for almost every law we pass here. And First Nations are continuously hampered by the sheer magnitude and complexity of policy, the interjurisdictional gaps and other legislative limitations.

When you’re trying to fight that and trying to fight disenfranchisement, you’re trying to fight all these complex things, we have to correct when legislation had brought it in. They don’t have the ability to do it on their own. They need to have external laws and legislation amended.

Colleagues, the final four words in each of the provisions, speaking to the prohibition of intoxicants in Treaties 1, 2, 3, 4, 5 and 6, are “shall be strictly enforced.” The strict enforcement by the RCMP of First Nation laws prohibiting intoxicants is a treaty promise and treaty commitment of the Crown. The refusal and failure of the RCMP to enforce intoxicants’ prohibitions, enacted by First Nations, are a breach of Canada’s treaty promise and commitment, and it is also contributing to the crises of health and public safety in First Nations.

On February 3, 2023, Chief David Monias of Cross Lake in northern Manitoba wrote to the Director of Public Prosecutions, the Minister of Justice and Attorney General of Manitoba, the RCMP, Minister Marc Miller, Minister David Lametti, Minister Patricia Hajdu and Minister Marco Mendicino to make an urgent request to uphold the rule of law and the treaty commitment to enforce and prosecute Cross Lake Band bylaws via section 85.1 of the Indian Act.

In the words of Treaty 5:

Her Majesty further agrees with Her said Indians, that within the boundary of Indian reserves, until otherwise determined by Her Government of the Dominion of Canada, no intoxicating liquor shall be allowed to be introduced or sold, and all laws now in force, or hereafter to be enacted, to preserve Her Indian subjects inhabiting the reserves, or living elsewhere within Her North-west Territories, from the evil influence of the use of intoxicating liquors, shall be strictly enforced.

Chief David Monias wrote:

The Manitoba Court of Appeal in R. v. Campbell, 996 CanLII 7298 (MB CA), which case was prosecuted by PPSC, upheld the Charter compliance of both the s. 85.1 By-law of the Mosakahiken Cree Nation and of s. 85.1 of the Indian Act. However, to our knowledge, this was the last enforcement and prosecution of a s. 85.1 By-law in northern Manitoba — some twenty-seven years ago.

Section 85.1 of the Indian Act allows First Nations band councils to create bylaws that regulate intoxicants on their reserves. Should this law not still be in effect? Because when the bands take over they still look at that section 85.1 of the Indian Act, but they are still refusing.

On April 5, 2023, a news article by The Canadian Press entitled, “Feds back away from timeline for law to make First Nations policing essential service,” stated that then-minister Marco Mendicino “. . . told The Canadian Press last December that the government hoped to table a bill in 2023.”

The article goes on to say that:

This week, however, a press secretary for the minister backed away from any timeline, saying “It is too early to say when the legislation will be tabled.”

As you are aware, colleagues, policing is widely considered an essential service. However, this request to recognize First Nations policing as an essential service and ensure there is adequate funding and resources to go with it has been ignored, despite the calls for recognition and reform. An essential service is typically defined as one that is crucial for public safety and well-being, and the disruption of which would significantly impact the community. It is about maintaining law and order, and protecting citizens.

First Nations deserve what other citizens are given, so is this not discriminatory?

As such, honourable senators, Bill S-223 will amend the Royal Canadian Mounted Police Act to include the following definition of “First Nation laws”:

First Nations law means

(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 of other entity that is authorized to act on behalf of a First Nation under a self-government agreement implemented by an Act of Parliament . . . .

Moreover, this bill will serve to clarify and confirm with conclusive certainty that the statutory duty of the RCMP includes the enforcement of First Nation laws and the execution of warrants that may, under First Nation laws, be lawfully executed and performed by peace officers.

Colleagues, I want to express that First Nations have not sat idly by as these ongoing problems hit their communities and endangered lives. They have gone on to create, to seek relationships, to amend laws and to propose and enact solutions.

As a key part of the ongoing efforts of Manitoba Keewatinowi Okimakanak, or MKO, Grand Chief Settee, to secure the effective recognition, respect, enforcement and prosecution of First Nation Laws — MKO had successfully obtained the agreement of the Director of Public Prosecutions and the Commanding Officer of RCMP “D” Division in Manitoba to enter into a protocol relating to the enforcement and prosecution of bylaws adopted pursuant to sections 81 and 85.1 of the Indian Act. The renewed protocol was effective as of June 30, 2023, as a two-year pilot project proposed by the Director of Public Prosecutions in a March 9, 2023, letter to Grand Chief Settee:

I further propose that my officials work with your organization and other key stakeholders during these three months to discuss the possibility of developing a broader pilot program for the enforcement and prosecution of Indian Act bylaws beyond those directly related to the COVID-19 pandemic. This kind of pilot would not be a permanent solution, but rather a joint opportunity to expand on the work done to date beyond the crisis posed by the pandemic. In addition, it would be an opportunity to gather evidence and experience that can then inform the development of solutions to better serve your communities in the long term.

Colleagues, it is MKO’s understanding that the two-year pilot project of PPSC, the RCMP and MKO for the enforcement and prosecution of Indian Act bylaws through the protocol is unique in Canada and applies only to those of the 23 law-making MKO First Nations that elect to participate. As there are 634 First Nations in Canada, this means that just 3.6% of First Nations in Canada have the opportunity to see enforcement by the RCMP and prosecution of offences by the Public Prosecution Service of Canada, or PPSC. Additionally, the protocol does not address the enforcement and prosecution of all First Nation laws and therefore does not address the enforcement and prosecution of a First Nation law enacted pursuant to a land code or a First Nation law enacted by a First Nation that has entered into a self-government agreement because they have the ability to do that.

This is a long speech, and it is so heavy.

I’m going to deliver the second one. It is just as long.

We work closely with the MKO and the Lands Advisory Board, and it was a concrete example of co-development in action of proposed legislation affecting First Nations. Such legislative co-development reflects, and is consistent with, Articles 19 and 38 of the United Nations Declaration on the Rights of Indigenous Peoples and, therefore, reflects and is consistent with Canada’s United Nations Declaration on the Rights of Indigenous Peoples Act. MKO and LAB stated that the co-development of legislation by a senator and other parliamentarians with First Nations is consistent with the call for such interactions to be done on a nation-to-nation basis and consistent with the principles of reconciliation, as emphasized in the former Deputy Prime Minister’s response on December 7, 2022, to a question by Senator Loffreda during the Senate’s committee study on the former Bill C-32.

James Campbell and I attended the three-day AFN National Forum on Justice: Revitalization of First Nations Laws and Legal Orders in Vancouver this past April. It was attended by people from coast to coast to coast.

This is what I witnessed:

There were teachings that have been followed by our people that they still honour, including that one doesn’t leave until decisions have been made and that behaviour and expectation is grounded in our laws, traditions and languages.

We must be cautious that our legal orders not be overtaken by colonialism. Our laws were made illegal, unilaterally. There is a place for our laws. This is about restoring balance rather than punishment.

We are not relics of the past but living, dynamic and profound. We need to ask ourselves, “Are we perpetuating harm?”

Listen with both ears so as not to cause harm.

Living law is reasoning, not just rules. Laws are evolving and growing with us; they are living.

We have the inherent right to decide what happens on our lands and lives.

Honour our ancestors but protect those yet to come.

We need justice for earth, languages, gender, ceremonies and we must braid these all together.

We must understand what occurs when we have to enforce laws within a judicial process that is foreign to us.

Good governance and good laws are safe.

You learn justice from our ceremonies.

How did we end up with children without culture?

What is the impact of the sacredness of our laws embedded in a colonial institution?

And that is what is happening with Bill C-92 when people bring in their laws thinking it is theirs, but it is now federal law that people can get rid of or modify, and that was not their expectation.

First Nations are constantly given predetermined policies and laws. The assumption is that they work, but they don’t. We didn’t sign treaties for our demise. Justice is a belief we have. Treaties are international documents — believe in walking together.

It is critical to hold government to account. What is the promise we see in federal legislation?

Colleagues, during the recent Assembly of First Nations, or AFN, conference on justice, there were discussions on Bill C-92; enfranchisement of our women; matriarchy; women’s roles in the past, present and future; human trafficking; the federal water legislation; and enforcement and prosecution of First Nation laws and bylaws.

Statements were made about how the Canadian judicial system has continuously failed us. When Europeans arrived, we didn’t have institutions that put people away. There was no need. We had a system that had humanity.

As a senator, what I took from this conference was an understanding that the reality of what happened in Canada to make First Nations vulnerable — the foreign systems that were unilaterally imposed — is something that still happens today on Parliament Hill. We still don’t take into account First Nations’ way of being and knowing. Good governance is about safety and security for all citizens of Canada and not just to benefit a select few. Good governance is about ensuring that we have sober second thought and are not slamming legislation through.

I call on all honourable senators to fully support the self-determination and enhanced law-making powers of all First Nations in Canada. This was what was intended by Parliament through the former Bill C-428 for those First Nations who choose to exercise the law-making authority granted by the former Bill C-49, and for those First Nations under self-government agreements entered into between a First Nation and Canada.

I call on my honourable colleagues to fully support and endorse Bill S-223, to refer it to committee and to pass the proposed amendments to the Royal Canadian Mounted Police Act that are set out within it, which will clarify and confirm with conclusive certainty the statutory duty of the RCMP to enforce First Nations’ laws.

Kinanâskomitinawow kwyes kapetameek. Thank you all for your deep listening.

Will you take a question, Senator McCallum?

Yes.

Actually, that is in my second speech, and I will say it then, but there is no other way. We must amend the bill. In all the meetings they’ve had with the federal ministers, no one has wanted to tackle this. They’ve actually left First Nations in a very vulnerable spot. To me, it seems intentional, and I don’t know why they’re doing that.

What I look at is how it gives such a negative image of First Nations to the rest of Canada when they are completely unable to deal with the violence in their communities. Thank you.