Hon. Mary Jane McCallum: Honourable senators, I am going to quote a submission of Grand Chief Garrison Settee, Manitoba Keewatinowi Okimakanak, Inc., or MKO, to the Standing Senate Committee on National Finance on Bill C-32, with specific reference to Part 4 of Division 3, framework agreement on first nation land management act:

The efforts by the MKO First Nations to make and enforce laws and By-Laws to respond to the COVID-19 pandemic uncovered and starkly illuminated that the previous two attempts by Parliament to create or support Indigenous self‑government through Bill C-428 in 2015 and Bill C-49 in 1999 have created “stranded regimes” of First Nation laws and By-Laws that are not subject to prosecution and therefore are unenforceable or will not be enforced by police.

This exists all across Canada. I heard the senator say that it’s only for one band, but it occurs for every single band.

This submission will address the “stranded regime” of First Nation laws pursuant to the former Bill C-49, the First Nations Land Management Act.

The experiences of MKO and the MKO First Nations indicate that Part 4 of Division 3 of Bill C-32, being the proposed Framework Agreement on First Nation Land Management Act, should be amended to ensure clarity on enforcement and prosecution such that no doubt remains in terms of an obligation to enforce and prosecute First Nation laws enacted pursuant to the agreement. Otherwise, we will see a return to or continuation of the limbo of what MKO describes as a “stranded regime” of First Nation laws enacted by First Nations pursuant to an act of Parliament that — through the policies applied by Canada and RCMP — are not recognized as valid, are not subject to prosecution and are not enforced by RCMP or police.

MKO can only describe as horrific the experiences of the First Nation Land Management Act community of the Misipawistik Cree Nation at Grand Rapids, Manitoba in their efforts to apply and enforce an Emergency COVID-19 law enacted pursuant to its land code without the support of RCMP.

On May 25, 2021, Chief Heidi Cook of the Misipawistik Cree Nation recounted the community’s experiences during an outbreak of COVID-19 in the winter of 2020-2021 to the House of Commons Standing Committee on Indigenous and Northern Affairs:

During that time, it was expressed by the 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 have 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.

The experiences of the Misipawistik Cree Nation arising from the refusal of RCMP to enforce the measures in the COVID-19-related emergency law of the Misipawistik Cree Nation galvanized MKO to reach out to and join efforts with Chairman Robert Louie of the Lands Advisory Board (LAB) in January 2021. MKO and LAB closely collaborated to elevate these pressing and exigent First Nations public health and safety issues to the responsible federal and provincial ministers, to the Commissioner of the RCMP and to parliamentarians.

In a February 17, 2020 letter of response to myself, as MKO Grand Chief, RCMP Commissioner Brenda Lucki wrote:

The RCMP recognizes First Nations’ authority under the FNLMA. However, there are concerns as to whether the FNLMA Land Codes provide the legal authority to enact COVID-19 related laws. Pending further direction, the RCMP will continue to follow the processes in place with respect to the enforcement of COVID-related bylaws passed under the Indian Act, as well as enforcing applicable provincial laws.

Similar to the position of the RCMP Commissioner, on March 15, 2021, Kelley Blanchette, Assistant Deputy Minister, Lands and Economic Development, Indigenous Services Canada (ISC) wrote to Chairman Robert Louie:

I appreciate the frustration felt by First Nations who have taken on such fundamental aspects of their governance through the enactment of a Land Code, only to be forced to rely on Indian Act authorities to address the current COVID-19 pandemic.

While more analysis will need to be done, I have instructed my team to collaborate with you on options to expand and clarify authorities through the next amendments to the Framework Agreement.

During a May 21, 2021, virtual meeting between MKO, LAB and several senior federal officials and a number of senior officials from Manitoba Justice that was facilitated by ISC, the Deputy Director of Public Prosecutions, David Antonyshyn, is recorded in the minutes prepared by ISC as advising, in part:

PPSC mandate is to prosecute offences on behalf of the Government of Canada that is prosecuting laws passed by Parliament and reviewed by the Attorney General (AG).

Except in Territories where PPSC provides full prosecutorial services, PPSC shares prosecutorial authorities with provinces.

PPSC can prosecute under the Indian Act, as it is a federal statute.

PPSC perspective is that it does not have the mandate to prosecute under the Framework Agreement (19.10)/FNLMA (22(3)). Adjusting these legal frameworks for PPSC to play a role would require federal-provincial, federal-First Nation, provincial-first Nation discussions.

The RCMP Commissioner and ISC suggested that Land Code First Nations apply By-Laws enacted by a Council pursuant to the Indian Act to address the dilemma of a lack of enforcement and prosecution of COVID-19-related First Nation laws enacted pursuant to a Land Code. As Indian Act By-Laws had not been enforced or prosecuted in Manitoba for 25 years, this would be through the Protocol relating to the Enforcement and Prosecution of ByLaw(s) adopted pursuant to s. 81 and 85.1 of the Indian Act (Protocol) that had recently been developed by the Public Prosecution Service of Canada (PPSC) and the RCMP.

However, with the repeal of the Ministerial power of disallowance through the Royal Assent given to Bill C-428, the Indian Act Amendment and Replacement Act as of December 16, 2015, both PPSC and RCMP advised that no By-Law enacted after the coming into force of Bill C-428 would be enforced or prosecuted unless the By-Law had been reviewed by “an appropriate federal authority” for validity and Charter compliance. This meant that the duly enacted and published COVID-19-related Indian Act By‑Laws enacted after January, 2020 in response to the pandemic were “stranded” and would not be automatically eligible for enforcement and prosecution, even under the Protocol.

It is important to mention here that MKO, in partnership with the Manitoba Public Interest Law Centre, worked diligently over several months in 2021 with senior officials of ISC and the federal Department of Justice culminating on November 16, 2021, in an MKO Framework COVID-19 Health Protection By-Law that is acceptable to PPSC and RCMP for enforcement and prosecution pursuant to the Protocol.

It is also necessary for MKO to say here that at the outset of MKO’s deep engagement in the process to implement the Protocol and to urgently develop a Framework COVID-19 Health Protection By-Law that would be enforced by RCMP and offences subject to prosecution, MKO clearly expressed our objection to the policies of Canada and the RCMP that a duly enacted First Nation law or By-Law required review by the Attorney General or by an “appropriate federal authority”. It is the position of MKO that the First Nations laws enacted further to the authority of a First Nation pursuant to the First Nation Land Management Act and a By-Law enacted further to the authority of a First Nation pursuant to the Indian Act are subject to enforcement by RCMP and police and offences of these laws are subject to prosecution.

It is the application of these policies of Canada and RCMP to require review by the Attorney General of First Nation laws and By-Laws that has created what MKO describes as the two “stranded regimes” of First Nation laws and By‑Laws that have been duly enacted pursuant to Acts of Parliament that are expressly intended to implement the First Nation inherent right to self-government.

The non-enforcement and non-prosecution of a First Nation law pursuant to a Land Code required the K’omoks First Nation to enforce their Land Code by way of a private prosecution at a cost of $178,000. The B.C. Provincial Court observed that a private prosecution was necessary because the local RCMP had “no experience with this sort of thing” and that “both the Provincial Prosecution Service and Crown Federal have declined to assist K’omoks.” Prosecution options must be flexible as proceeding by way of private prosecution of all offences of First Nation laws is not sustainable.

LAB Chairman Robert Louie advised the APPA Committee on November 22, 2022:

We have come to find out over the last 20-plus years that Canada and the RCMP are not readily backing and enforcing the First Nation laws that First Nations have passed. It’s an issue that is bubbling. It’s something that we didn’t quite expect at the outset, but we’re working now with Canada and with provinces and with Attorneys General both at the Canadian and provincial levels to deal with this issue. We have a lot of work to do to get enforcement fully recognized so that First Nation laws can be accepted, enforced and, in certain cases, prosecuted. That’s a very big area.

MKO reiterates that our lived experiences indicate that unless Part 4 of Division 3 of Bill C-32, being the proposed Framework Agreement on First Nation Land Management Act, is amended to ensure clarity on enforcement and prosecution such that no doubt remains in terms of an obligation to enforce and prosecute First Nation laws enacted pursuant to the Agreement, we will see a return to or continuation of the limbo of what MKO has described as a “stranded regime” of First Nation laws enacted by First Nations pursuant to an Act of Parliament that are not recognized as valid, are not subject to prosecution and are not enforced by RCMP or police.

That is why MKO had wanted to present to the Standing Senate Committee on Indigenous Peoples and to the Standing Senate Committee on National Finance to clear this so that they don’t continue in limbo. I don’t understand why the Indigenous Peoples Committee didn’t make amendments to this or why they didn’t deal with the issues that were brought up by Robert Louie.

Thank you for your attention, honourable senators. I thank MKO who has provided all this information so that I could present it on their behalf. Thank you. Kinanaskomitinowow.

(On motion of Senator Dalphond, debate adjourned.)