Understanding the context

Indigenous peoples continue to be overrepresented in the Canadian criminal justice system as offenders and as victims of crime (Clark 2019). Their experiences in the Canadian justice system have been overwhelmingly influenced by prejudice, systemic racism and colonial practices that continue to perpetuate intergenerational trauma among Indigenous families and communities.Footnote 4 Enforcement of First Nations’ laws is considered important to ensure the safety and well-being of their communities (Standing Committee on Indigenous and Northern Affairs 2021). For First Nations to exercise their inherent right to self-determination and self-governance, some experts have concluded that it is important that they can develop and enact laws to govern their Nation, as well as administer, enforce, prosecute, and adjudicate offences under their laws to address issues within their communities (Metallic 2023).

In light of longstanding challenges around the enforcement of First Nations laws and by-laws, the House of Commons Standing Committee on Indigenous and Northern Affairs undertook a study to explore these issues. The study’s final report, released in June 2021, provides an overview of some of the collaborative approaches used to enforce laws in First Nations and presents recommendations to address the issues that were raised (Standing Committee on Indigenous and Northern Affairs 2021). The report also provides an overview of the law-making authority of First Nations and the role of federal and provincial governments in enforcing First Nations’ laws and by-laws.

By-laws are local laws passed to regulate the affairs within the community (Standing Committee on Indigenous and Northern Affairs 2021). Some First Nations enact by-laws under section 81Footnote 5, 83Footnote 6, or 85.1Footnote 7 of the Indian Act. Additionally, under section 107 of the Indian Act, justices of the peace may be appointed by the Governor General in Council to adjudicate offences under the Indian Act and some Criminal CodeFootnote 8 offences. Other than under the Indian Act, First Nations laws can also be enacted pursuant to self-government agreements, modern treaties, or through sectoral federal legislation such as the Framework Agreement on First Nation Land Management Act.Footnote 9

In addition to law-making, some First Nations have taken on varying aspects of administering their own justice systems such as the enforcement, prosecution and adjudication of their laws. The degree to which the Nations have control over their own justice system determines the components of the Canadian justice system with which they need to engage. For example, a First Nation may rely on the RCMP or municipal police to enforce their laws, or they may have their own enforcement agency but not an adjudication body. In such cases, the lack of a separate adjudication body necessitates offences to be prosecuted in provincial courts.

Generally speaking, the implementation of First Nation’s justice systems will often require coordination with the Canadian justice system. This has resulted in several documented issues and challenges pertaining to the administration of justice in First Nations. These challenges include, but are not limited to: a lack of awareness and recognition of the legitimacy of First Nations’ laws (Metallic 2023); a lack of enforcement of First Nations’ laws and by-laws (Standing Committee on Indigenous and Northern Affairs 2021, Metallic 2023); overlapping jurisdiction between federal, provincial and territorial governments which results in confusion over responsibilities and inaction (Standing Committee on Indigenous and Northern Affairs 2021, Metallic 2023); using time-limited programs to address essential services, which is unsustainable and can lead to gaps in coverage (Public Safety 2022a); mistrust of enforcement agencies and governments (Standing Committee on Indigenous and Northern Affairs 2021, Metallic 2023); and, insufficient funding structures and lack of stable funding (Standing Committee on Indigenous and Northern Affairs 2021, Standing Committee on Indigenous and Northern Affairs 2022, Public Safety 2022a, Metallic 2023).

It has been documented that when First Nations are unable to enforce, prosecute, and adjudicate their own laws and by-laws, their communities are negatively impacted (for more information on impacts, see: Metallic 2016, Metallic 2023, Standing Committee on Indigenous and Northern Affairs 2021, Standing Committee on Indigenous and Northern Affairs 2022). For First Nations, this results in their inability to govern effectively, to ensure that the community is safe, and to attract economic investment, which limits better socioeconomic outcomes for community members (ibid).

Although some First Nations have raised these issues and challenges, what is less known is how First Nations have been working to advance their justice systems (Standing Committee on Indigenous and Northern Affairs 2021). This report is intended to highlight what was shared by four First Nations that have been successful in advancing their justice systems, so that others working in this area and within the Canadian justice system can learn about their experiences.