Delays and jurisdiction issues slowing talks on First Nations policing

Federal officials worried long-promised legislation declaring First Nations policing an essential service was being delayed by Assembly of First Nations hesitations about the bill, newly released internal documents show.

Records obtained by The Canadian Press under the Access to Information Act also appear to show that one of the sticking points for both the advocacy organization and Ottawa is whether to recognize policing as an area of First Nations jurisdiction – something the government has done when it comes to child-welfare services.

Prime Minister Justin Trudeau promised his government would bring forward a new First Nations policing law in 2020 after years of calls from Indigenous leaders.

The federal government committed to co-develop the law with the Assembly of First Nations, which represents more than 600 communities across Canada.

Last year, calls for legislative change were once again amplified after 11 people were killed and 17 injured in James Smith Cree Nation and the nearby community of Weldon, Sask.

Police service

The RCMP was the police service of jurisdiction, with the closest detachment located nearly 50 km away. That prompted the community to call for immediate changes to emergency services in the area, including faster response times.

The anniversary of the tragedy is coming up at the beginning of September, yet the advocacy organization and Ottawa appear to be stalled on what a law around First Nations policing should even look like.

And leaders of existing First Nations police services say their offices are cash-strapped under an inequitable and overly rigid funding program from the 1990s that is cost-shared with provinces.

Some of the trouble between both sides is outlined in briefing notes prepared for the Public Safety Department’s top bureaucrat ahead of a pre-budget meeting earlier this year with the then-CEO of the Assembly of First Nations.

The documents show officials were concerned things were not moving fast enough for the government to meet its promise to table a bill before Parliament’s summer recess.

Public safety

“There is a significant risk that (the public safety minister) will not be able to table a First Nations police services bill by June 2023 due to ongoing challenges with the AFN, which limits timely progress,” one briefing note said.

It also said the department has “drafted and shared with the organization several products since June 2022,” but that the AFN had yet to provide comments or share reports on their “regional engagement activities,” leading to “continued delays.”

As of January 2023, the organization had not provided comments on draft principles for the bill.

Regional Chief Ghislain Picard, a member of the AFN’s executive who handles justice matters, said communication with the federal government is difficult because they are not aligned on what the bill should look like.

“We’re very much interested in seeing a bill that acknowledges or recognizes First Nations policing as an essential service,” Picard said in an interview.

Separate ways

But where the First Nations organization and Ottawa go separate ways is in terms of who would have jurisdiction: the provinces or the First Nations.

The federal government enshrined rights recognized by Section 35 of the Constitution _ which reaffirm inherent and treaty rights – when it passed Indigenous child-welfare legislation, giving First Nations jurisdiction over those services.

Picard suggested they should do the same for a policing bill.

“The UN Declaration (on the Rights of Indigenous Peoples) has the right to self-determination right in it,” he said.

“That’s certainly, in our view, the right to be establishing our own institutions.”

Relationship

Trudeau has repeatedly said that the federal government’s relationship with Indigenous Peoples is charting a new course – one that respects rights in the spirit of reconciliation.

But the newly released documents show Ottawa is reluctant to go all the way when it comes to jurisdiction.

Speaking points for the deputy minister of public safety in one briefing note say Ottawa believes existing provincial policing laws allow for “effective” services, as they already include standards and processes for public complaints.

“We expect that First Nations police services continue to be regulated by provincial policing legislation following the passing of the federal legislation.”

Not responded

Public Safety Canada has not responded to a request for comment.

The assembly’s lawyer, Julie McGregor, spoke about the recognition of rights in the bill being a “sticking” point in negotiations at a gathering last month in Halifax.

She told the organization’s general assembly that the Department of Public Safety had provided a written explanation of its plans for the legislation – and “it advised it does not have the mandate for inclusion of First Nations jurisdiction or rights recognition.”

Picard said it has proven difficult to organize a meeting with the federal government, especially given last month’s cabinet shuffle.

Dominic LeBlanc took on the public safety portfolio from Marco Mendicino, who has been dropped from cabinet altogether.

Shuffle

Before the shuffle, the AFN had scheduled a meeting with Mendicino, Picard said. Now, it is waiting for LeBlanc to get fully briefed on the issue.

The organization has called on LeBlanc to prioritize First Nations policing and promised it will “continue to pursue a true co-development process.”

But Picard said that with a “less than certain” future ahead for the Liberal government and the potential for an election anytime under a minority Parliament, there’s “a lot of considerations to be had” about the future of the bill.

And the discussions must recognize that the federal government has a role to play on the money side, he said – not just provinces and First Nations themselves.

“First Nations policing has to not only be recognized as an essential service,” said Picard.

“It should be funded as such.”