What we learned

To frame the discussions, the representatives of the four First Nations were asked what the administration of justice means to their First Nation. The representatives emphasized that the administration of justice needs to be community-based and that it is necessary to ensure that all the aspects of the justice system, namely, legislation, administration, enforcement, prosecution, and adjudication, are functioning well to serve the community. The representatives shared that the administration of justice is also not solely about administering pieces of the justice system, but that the underlying objective is for a Nation to regulate themselves in a way that respects their values and traditional teachings.

“Our children and grandchildren know we have [our own] police, a court and justice department, as well as laws that they have to follow. They know that if they get in trouble, the Justice Department has a program to guide them through the justice system.” (Mohawks of Akwesasne)

Successes and lessons learned in the administration of First Nation justice systems

During the discussions, the four First Nations were asked to share how they have been successful in administering and/or enforcing their own laws and by-laws. This included any processes that worked well or partnerships that helped them to be successful. In addition, the Nations were asked if there were any lessons learned that they would like to share with other Nations looking to advance their own administration of justice initiatives, as well as justice system professionals (i.e., enforcement officers, police, prosecutors, legal counsel, adjudicators, etc.), and federal, provincial and territorial government officials working in this field.

Community-led justice systems

“It’s thanks to our past leaders’ resilience and push to make this happen, it’s astounding, and you don’t know the pride you get when someone turns to you and talks about how well-known and holistic the Akwesasne justice system is. This is based on the work of generations and generations of people who have done so much." (Mohawks of Akwesasne)

The representatives of all four Nations indicated that the reason their Nations have been able to advance their own justice systems is largely based on support from their communities, and the continuous engagement from their leadership, who advocate repeatedly for the community with municipal, provincial, and federal governments and organizations. They reported that communities often provide a large part of the funding for their justice systems through the revenue from residential, commercial, and industrial leases and activities on their lands.

All of the representatives highlighted that community engagement is critical as it provides insight into issues in the community that members would like to have addressed. For the participating First Nations, engagement with community members permeates every aspect of their justice systems, from legislative development to enforcement, prosecution, adjudication, and other methods of resolution. Representatives from two Nations described how their communities are regularly engaged in law-making, such as identifying issues to address in legislation, reviewing laws in draft form to provide feedback on what the community would like to see advanced, and includes a community vote to pass certain laws.

“Policing has historical issues, and that can be handled through solid relationships and understanding the community. Community members’ voices are heard through the Peacemakers who are Nation members and Elders. If you have community buy-in the people will respect and appreciate the service.” (Tsuut’ina Nation)

Community engagement is also a critical component for policing in the four First Nations, as police and Community Safety Officers are responsible for community safety. For example, one Nation’s police service takes a community-centered approach to policing; there is a dedicated team of plain clothed municipal police officers that work in the First Nation. These officers are trained by the First Nation, and the Nation’s Chief sits on the municipal police governing Board. Further, the Nation’s Chief and Executive Council meet regularly with the municipal police chief and senior officers. The First Nation’s representatives reported that this level of involvement has greatly enhanced relationships between the community and the municipal police service. They also noted that regular communication between the community and the municipal police service has helped to ensure that the community’s input is considered in all policing matters.

Another Nation’s approach to community engagement in policing includes having their Nation’s police officers attend community events each month, including Band meetings two or three times each year to get feedback from community members. Additionally, their Nation’s police officers meet with each household on the Nation every five years, and they present at an Elders’ luncheon on what they have heard from the community. They then work with the Elders to address community concerns. For example, one Nation’s representatives shared that community members had expressed concern to the Nation’s police about trespassing, which is a major issue. There is a large city near the Nation’s land, and many people cut through the First Nation as a shortcut on their commute. This had led to the deterioration of the Nation’s roads and created safety hazards. The representative stated that the Nation has addressed this issue by creating a program to address trespassing, which includes having Nation’s police officers issue tickets with significant fines.

“Education is a big part of what they are doing – it is clear what their [CSOs] roles are as they go through and enforce the laws and there are no surprises for the community.” (Whitecap Dakota Nation)

Representatives from two of the Nations indicated they prefer to use an educational approach to enforcement rather than issuing tickets. One of the Nations indicated they are prioritizing education whenever possible with community members and visitors. With a hotel and casino in their community, they have a large number of visitors, so CSOs try to diffuse situations by educating people about their laws and by-laws, and only use ticketing and prosecution when necessary. They also use a community bulletin (by way of email and posters) to educate the community about their laws, by-laws, and the legal authority that CSOs have to issue tickets.

One Nation instituted a “Good Standing in Community Policy,” where access to community services (e.g., childcare or loans) are dependent on whether they have good standing in the community, including payment of any fines.

Finally, a representative from one of the participating Nations indicated that currently their First Nation’s court has Indigenous staff, but not all are community members. The goal is to eventually have a prosecutor and judge from within the community to truly become a community-based court.

Strong partnerships

“A strong partnership with external agencies and systems is crucial for the system to function effectively; without partnerships the system won’t work.” (Tsawwassen First Nation)

Representatives of First Nations noted the importance of having strong partnerships to support the enforcement of their laws and by-laws. Partnerships with municipal police services and the RCMP have resulted in policing agreements focused on fostering good relationships and positive enforcement within First Nations. One Nation’s police representative highlighted that their Nation’s police service has a partnership with two other police services that provides access to additional equipment. They also have reciprocal powers to enforce laws and make arrests in the other police services’ jurisdictions.

Representatives also highlighted the importance of partnerships with the provinces for ensuring that First Nations’ laws and by-laws are prosecuted in provincial courts. One First Nation described their agreement in place with the provincial Crown, which stipulates that where provincial legislation is comparable to the Nation’s laws, the provincial Crown will proceed with the prosecution of the Nation’s laws. Another Nation’s representative explained that they are working closely with provincial counsel to have protocols put in place so that their Nation’s laws can be prosecuted in provincial court. While the province will assist, currently the Nation is still responsible for the prosecution of its own court cases.

Recognition of laws

“The Nation would like to generate capacity for internal justice procedures, such as making laws to work within the broader legal system. We worked with the province to get some recognition of the Nation’s laws in the courts, and while there has been some progress, there is no federal legislation on procedures for prosecution as this is primarily a matter of provincial legislation.” (Whitecap Dakota Nation)

One of the greatest challenges that the representatives highlighted for advancing First Nations’ justice systems is the lack of recognition of the First Nations’ laws and by-laws by provincial governments and courts, the federal government, external police services, and even sometimes the Nations’ community members.

The representatives of the four First Nations discussed different approaches they use to help increase the recognition of their laws and by-laws, given that this has been a challenge they have encountered for advancing their justice systems. Two First Nations are working with the provincial Crown in their respective jurisdictions to develop recognition of their Nations’ laws in provincial court.

Another approach to increase recognition of the Nations’ laws within their communities and in provincial courts that the First Nations’ representatives discussed is the use of templates for writing laws that include standard definitions for commonly used terms. This provides consistency in the development, interpretation and application of the First Nations’ laws by law enforcement, judges and justices of the peace. Additionally, one of the First Nations regularly provides training for their Nation’s Justices of the Peace to ensure they understand the Nation’s laws.

However, even with these successes the First Nations’ representatives reported that there continue to be challenges with the recognition of these Nations’ laws and by-laws. One Nation’s representative indicated that even though there is an agreement in place with their Nation’s own police service to enforce their laws and by-laws, the police push back because they interpret the laws themselves and have concerns about the validity of those laws. Another Nation’s representative reported that even though their Nation’s Treaty provides the right for their Nation to prosecute their laws in provincial courts, and to hire a prosecutor, there are many logistical challenges. This Nation’s representative also described how the provincial court system is set up for prosecutions to be conducted by the provincial Crown and not by private or Treaty prosecutors who do not have the same access to processes, scheduling and software as the provincial Crown. The Nation hired a private prosecutor in the past, but these types of logistical challenges limited its success. Accordingly, the representative indicated that the Nation has not attempted to have their laws enforced in provincial court since this earlier prosecution.

Ongoing and stable funding

“We need to be able to offer our justices the same things provinces offer to their justices and judges. We need the same resources that Canada has for the development of laws. We have to be able to remove laws from our registry, and update and amend laws as needed.” (Mohawks of Akwesasne)

One of the most prominent challenges that the representatives of the four Nations raised is regarding the lack of ongoing and stable funding for the administration of justice. The representatives indicated that there is a strong need to move away from program- and project-based funding models to more stable alternative funding models so that communities can fully develop, administer, and maintain their own justice systems over time.

The representatives of the participating First Nations shared that the program- and project-based funding models used for law enforcement services do not take into consideration the demand for service when there is an increase in non-members coming to the communities due to tourism and for shopping. The representatives noted that this means that the First Nations must find other sources of funding. One of the First Nation representatives noted that their community is funding more than half of their Nations’ police officers; the number of officers they are able to resource through the First Nations and Inuit Policing Program is not sufficient to meet the increased demand for police services resulting from the high number of tourists. There are tens of thousands of visitors arriving daily in this First Nation, which stretches the Nation’s policing resources that are required for maintaining safety in the community. The Nation’s representatives also mentioned that their police service has had to take on extra services, such as police record checks, in order to supplement their funding.

In addition, some representatives explained that since First Nations’ police services are funded as a program rather than as an essential service, they are not being sufficiently resourced for support positions other than police officers. For example, the representatives of some of the participating First Nations reported that the program funding is restricted to hiring and paying officers’ salaries; it does not include support staff and specialized services or units that are standard for many police services across Canada (for example, forensic services, police dogs, traffic units). There is also a gap in the funding models to pay for honorariums provided to Elders involved in administering the justice system.

Further, the representatives from a couple First Nations identified the need for funding of First Nations’ police services to provide a competitive salary so that law enforcement staff can be retained. More than one representative expressed concerns over not being able to pay officers at the same rate as the RCMP. Funding was also noted by the representatives as an issue for a Nation that is piloting a two-year CSO program as there is no guarantee that they will have the resources after the pilot. The representatives asserted that sustained funding is essential to build capacity for policing within the Nation. In addition, the program funding models require Nations to go back and justify their programs for continued funding, which they believe would not be required if the justice systems were considered essential services.

“Funding is not given for justice systems in First Nations, even with self-governing First Nations, which is concerning. There is funding for language, culture and infrastructure but not justice. There is a need for long-term stability; communities can contribute if they are capable, but they need to know what resources are required to administer a Nation-based justice system.” (Whitecap Dakota Nation)

Representatives of the participating First Nations reported that the use of program- and project-based funding models also make it challenging for First Nations to ensure ongoing maintenance of their justice systems. One of the First Nations that has been administering their own justice system for many years indicated that they already have all of the pieces of their system in place, but that there is no funding available to update the pieces that are getting older, including the buildings being used to deliver the justice system. The representatives noted there is also no ability to grow programs that have been operating for decades to meet the growing demand each year.

Other gaps in funding were identified by the representatives of the four First Nations. Notably, one First Nation’s representative indicated that they were looking for funding for non-legally trained Indigenous prosecutors to take over the role of prosecution that the CSOs are currently doing. They also noted that funding is needed to help gather data to measure the impacts of the Nation’s justice programs and services. Furthermore, another First Nation’s representative indicated that there is a need for funding to hire a legislative drafter and researcher, which are key positions for First Nations that are planning to develop their own laws. They also indicated that there is a need for funding to train justices of the peace so that they are able to interpret the Nation’s laws.

Impacts of the administration of First Nation justice systems

“It’s a robust model of a justice system; to be able to do that [administer justice] internally without sending adjudication outside of Akwesasne is important for the survival of Akwesasne and for our people. When the people leave this territory and undergo prosecution outside, it is difficult to return physically, and when they return, they are not coming back in the best mind.” (Mohawks of Akwesasne)

The representatives of the four First Nations were asked how the administration and/or enforcement of their laws and by-laws have impacted their Nations. More specifically, they were asked whether they have seen improvements in their community’s well-being, or if they have been able to do something differently in their community because of these administration of justice initiatives.

One Nation’s representative indicated that as a result of their CSO program, there has been an improvement in the relationship between the community and the police service. Since the officers are from the community, they are known and are seen as being there to help the community, whereas external police do not have those same relationships. Another First Nation’s police service administers an annual community satisfaction survey, and it was shared that 97% of community respondents were satisfied with their police service in 2022.

In another First Nation, the Nation’s own laws and traffic infractions are heard in their own court, in the community and the Nation’s representatives shared they feel their court is able to protect their people’s rights. It was emphasized that having to physically leave the Nation to attend provincial court is a significant barrier to the well-being of community members. The same community’s justice program is also seen by the community to offer valuable services as it guides its members through the Canadian justice system. For example, this First Nation’s court worker program supports their people through the provincial court process, which can be scary and overwhelming.

Although the First Nations’ representatives were able to speak to some of the impacts they have observed as a result of administering their Nation’s justice systems, they also spoke about the need and desire to comprehensively measure these impacts. However, the Nations’ representatives reported that this is not currently possible as it would require funding for research and data collection.

Re/Imagining First Nation justice systems

“Many First Nations in British Columbia are trying to preserve and revitalize traditional laws; much has been lost through the loss of Knowledge Keepers. It can be challenging to say what First Nations’ legal systems looked like before settlers came and imposed their justice systems.” (Tsawwassen First Nation)

As a final topic of discussion, the First Nations’ representatives were asked what their justice system could look like outside of the Western justice system. Recognizing that the representatives of the four First Nations may not have had time to think about this, it was initially raised during the first discussion and was expanded on in follow-up discussions with some of the First Nations.Footnote 16 Even with another opportunity, the First Nations’ representatives displayed some hesitancy around being prescriptive about what the systems could look like given they had not had sufficient time to discuss this with the members of their Nations.

Instead, the First Nations’ representatives noted the importance of having control of their own justice system and the autonomy to make decisions. For one representative, this means that they would have a community-run justice system with community members working as judges, prosecutors, court workers, etc. They also highlighted the important role of Elders, culture, and language in the justice system. Some of the representatives also suggested that a phased approach can help build capacity. For example, stagger the passing of laws, and take the time to put in place the processes, structures, and people needed to preserve and revitalize traditional laws since so much knowledge was lost through colonization. There was also mention of using restorative justice approaches and shifting from Western models of policing to focus on community safety and well-being.