Hon. Mary Jane McCallum moved second reading of Bill S-272, An Act to amend the Director of Public Prosecutions Act.

She said: Honourable senators, I am pleased to rise today to give second reading to Bill S-272, An Act to amend the Director of Public Prosecutions Act. I wish to acknowledge that both Bill S-272 and Bill S-271 were the work of Manitoba Keewatinowi Okimakanak, or MKO, in close collaboration with the Lands Advisory Board, or LAB. I had the privilege of working with MKO and LAB and bring these to the Senate floor on their behalf.

Bill S-272 is important legislation that is necessary to clarify and conclusively confirm that the Public Prosecution Service of Canada, or PPSC, has the jurisdiction and mandate to initiate and conduct prosecutions of summary conviction offences under First Nation laws — as well as any appeal or other proceeding related to such a prosecution — on behalf of the First Nation that made or enacted the First Nation law.

Bill S-272 will amend the Director of Public Prosecutions Act to include the following definition of First Nation law:

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

Honourable senators, Parliament intended to create new and enhanced law-making authorities to support the self‑determination of First Nations through Bill C-49, the First Nations Land Management Act, in 1999, and Bill C-428, the Indian Act Amendment and Replacement Act, in 2014.

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.

A departmental summary 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 created “stranded regimes” of First Nation laws that are not enforced by the RCMP and have not been subject to prosecution by the Public Prosecution Service of Canada.

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, or ISC, now reviews draft bylaws for comment only. Why was this not addressed immediately in 2014? Why didn’t the Attorney General, PPSC and ISC raise this issue in 2014 with the federal government, as — by practising what amounts to supervised neglect by leaving the First Nations in a vulnerable position on many levels — they are culpable? Why have the Attorney General, PPSC and ISC been allowed to disregard their responsibility to seek out and ensure a resolution?

In testimony to INAN on May 6, 2021, Jeff Richstone, Director General and Senior General Counsel of the Office of the Director of Public Prosecutions, stated:

There has existed for many years a gap with respect to the prosecution of Indigenous Community laws. Those laws are enacted by communities under a number of law-making authorities, but the common theme is the nation-to-nation relationship that Indigenous Communities share with Canada.

The prosecution of these laws is not part of PPSC’s mandate. . . .

Mr. Jeff Richstone, along with Mr. Stephen Harapiak, Legal Counsel, Legal Services, Department of Justice, explained:

We’ve been reviewing some of the draft bylaws at the request of [F]irst [N]ations, to provide them some guidance and to assist. Those would be the bylaws that are being enforced. Without the power of disapproval, some of the problems that can come up are whether a bylaw is within the scope of the authority of the Indian Act, or whether it is charter-compliant, as required since 2011.

Honourable senators, my question is this: Why was the power of disapproval removed if there wasn’t a transformative process put in its place to ensure the effective recognition, respect, enforcement and prosecution of First Nations laws? More importantly, why has the government placed First Nations in a position that won’t allow First Nations to do the work they need to do? The process of disapproval by a minister is itself a colonial act, and why did a federal action of removing disapproval then become, in itself, a barrier to self-determination and self-governance?

Jeff Richstone explained that:

Despite our limited statutory role, PPSC is committed to working with partners to explore options and develop long‑term solutions. To that end, prior to the pandemic, PPSC was in the early stages of initiating discussions with other stakeholders to see how to bring this issue to the forefront, in the hope of identifying solutions to fit the needs of Indigenous Communities.

The report continues that:

PPSC has entered into protocol agreements with some First Nations to prosecute Indian Act by-laws made to address the COVID-19 pandemic. The committee was told that only by‑laws that have been reviewed for compliance with the Indian Act and the Canadian Charter of Rights and Freedoms can be prosecuted, understanding that not all sections of the Indian Act itself are compliant with the Charter.

Is that not a paradox in and of itself? Did they identify what sections of the Indian Act are not compliant with the Charter and what would take precedence? And the limitation of review is, again, a major barrier.

In the INAN committee report, it states:

Self-governing First Nations can make laws in relation to the law-making authority that is set out in their self-government agreement or their modern treaty. In addition, First Nations that have adopted a land code, pursuant to the Framework Agreement on First Nations Land Management (brought into force by the First Nations Land Management Act) can make laws in relation to their lands, including development, protection and possession. These laws enable First Nations to opt-out of the relevant Indian Act land management provisions. The Framework Agreement includes provisions relating to enforcement of land codes and First Nations laws. However, this does not mean that laws made under land codes are enforced. As the Lands Advisory Board explains in its brief,

Unfortunately, there has been chronic under-enforcement of Indian Act by-laws. Much of the difficulty in building effective enforcement of First Nation laws under the Framework Agreement can be traced back to difficulties in overcoming the legacy of failure under the Indian Act.

Honourable senators, as part of our consideration of Bill C-32 in December of 2022, Grand Chief Garrison Settee of Manitoba Keewatinowi Okimakanak Inc., or MKO, provided our Standing Senate Committee on Indigenous Peoples and our Standing Senate Committee on National Finance with a clear written explanation of why Part 4, Division 3 of Bill C-32 should have been amended to ensure clarity on the enforcement and prosecution of First Nations laws enacted pursuant to the Framework Agreement on First Nation Land Management.

Although MKO was not invited to appear before either the Indigenous Peoples Committee or the National Finance Committee regarding Bill C-32, several honourable senators rose in the chamber and joined me in expressing support for MKO’s request to appear before the National Finance Committee.

I also rose in the chamber to support and draw attention to the importance of the amendments then being proposed by MKO. In addition, Senator Loffreda posed a question in committee to the Deputy Prime Minister and Minister of Finance, saying:

. . . MKO made a submission to our Indigenous Peoples Committee, voicing some concerns with this section of the bill and calling for consequential amendments to the Royal Canadian Mounted Police Act and the Director of Public Prosecutions Act.

I would appreciate your comments and opinion on these claims and concerns.

The Minister of Finance’s response was:

That is a very broad set of issues that you have raised. It is beyond the few minutes that Senator Mockler is going to give us for me to address all of them. Let me just say: duly noted.

I am confident that reconciliation and a nation-to-nation relationship with Indigenous people in Canada really are one of the most important issues for our government. That sort of permeates the work across all departments. It is an issue we take seriously. The comments that you make are duly noted by me and by Mr. Jovanovic.

The MKO submission quoted the May 25, 2021, statement of Chief Heidi Cook of the Misipawistik Cree Nation. Chief Cook recounted to the House of Commons Standing Committee on Indigenous and Northern Affairs the community’s experiences during an outbreak of COVID-19 in the winter of 2020-21:

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 MKO submission on Bill C-32 also referenced the statement made on May 25, 2021, by Lands Advisory Board Chairman Robert Louie to the INAN committee:

Many land code First Nations have faced refusal from police forces when they ask for help, with police forces expressing concerns regarding the validity of land code laws, concerns about potential liability of police officers, and uncertainty regarding who will prosecute laws if charges are laid. It has been difficult to this point to reach agreement with either federal or provincial prosecutors to tackle First Nation laws under the Framework Agreement.

On November 22, 2022, Lands Advisory Board Chairman Robert Louie advised our Indigenous Peoples committee during its consideration of Bill C-32:

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.

The RCMP Commissioner Brenda Lucki’s February 17, 2020, letter to MKO Grand Chief Settee provides an earlier confirmation of Lands Advisory Board Chairman Robert Louie’s statements that land code First Nations faced a “refusal from police forces” and that “. . . the RCMP are not readily backing and enforcing the First Nation laws that First Nations have passed.”

The RCMP commissioner advised Grand Chief Settee:

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.

On March 15, 2021, Dr. Kelley Blanchette, Assistant Deputy Minister, Lands and Economic Development of Indigenous Services Canada wrote to LAB 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.

Honourable senators, Bill C-32 represented the next amendments to the framework agreement referred to by Dr. Kelley Blanchette. Honourable senators will recall that amendments to address effective enforcement and prosecution of Land Code laws were not a part of Bill C-32.

On May 31, 2023, Mr. Michael Foote, Chief Federal Prosecutor for Manitoba, speaking to MKO leadership and representatives during a two-day MKO and RCMP symposium that was organized by MKO, stated:

I have been a prosecutor for twenty-five years at the federal level and another three years at the provincial level. And I know in all of that time we have not done any prosecutions. So, it certainly predates my tenure as even the most junior prosecutor. I think Michael Anderson referred us back to a case from 1996 where it was the Department of Justice that was responsible for doing it at the time that prosecuted a case. And it’s never been done since, as I alluded to in my presentation.

When responding on June 1, 2023, to a question from the Chief Hubert Watt of the God’s Lake First Nation on the second day of the MKO and RCMP symposium, the Chief Federal Prosecutor for Manitoba also said:

With respect to your question, with respect to specifically the issue of the Indian Act bylaws, it’s always been the position of the Federal Prosecution Service that we don’t prosecute those bylaws. So, I take it that the RCMP, once they get that message from us, they take the position that if the Crown’s not going to prosecute, we’re (RCMP) not going to lay charges.

However, RCMP Inspector Jeff Preston, Officer in Charge for the Campbell River, British Columbia, detachment told the Standing Committee on Indigenous and Northern Affairs — INAN — in the other place on May 6, 2021 that:

Generally speaking, band bylaws are treated as federal laws that are enforceable by the RCMP, the police of jurisdiction or the band bylaw enforcement officers.

In a May 11, 2021, statement to the INAN committee in the other place, RCMP Staff Sergeant Ryan Howe of Meadow Lake Detachment, RCMP F Division, Saskatchewan, told the INAN committee that enforcement of First Nation laws by RCMP in northern Saskatchewan stopped after 2014.

As part of an exchange of communications between Michael Anderson, MKO’s Policing and Public Safety Adviser, following up on Staff Sergeant Howe’s statement to the INAN committee, Staff Sergeant Howe wrote on May 6, 2021, and advised MKO:

After the changes to legislation made in December 2014, the direction and guidance to RCMP serving First Nations in Northern Saskatchewan was that without prosecution, the police would no longer arrest or lay a charge.

On May 27, 2021, MKO filed a formal access to information request to request a copy of this guidance to RCMP to cease enforcement of First Nation laws after December 2014 without prosecution. More than two years later, MKO continues to pursue a response from RCMP to MKO’s ATIP — Access to Information and Privacy — request for this RCMP guidance. At a request from my office in the Senate for this response, which included a consent from MKO, my office was informed that it would take a further 1.5 years to get the information, and I have been told that that is deemed a refusal.

Honourable senators, First Nations from coast to coast to coast are experiencing a crisis in public safety and well-being, largely driven by an epidemic of addictions driven by virtually uncontrolled drug dealing and bootlegging, and the complex of community harms that is the result. The failure and refusal of RCMP to enforce and the Public Prosecution Service to prosecute First Nations laws, including intoxicants, prohibitions, trespass and curfew laws, is directly contributing to this national crisis.

The final four words that each of the provisions prohibiting intoxicants in each of Treaties 1, 2, 3, 4, 5 and 6 are “. . . shall be strictly enforced.”

The responsibility to uphold the Crown’s treaty promise and commitment to strictly enforce First Nation laws prohibiting intoxicants and to prosecute offences pursuant to these First Nation laws is clearly under the jurisdiction and responsibility of the Attorney General of Canada. The refusal and failure of RCMP to strictly enforce First Nation laws prohibiting intoxicants and the failure of the Public Prosecution Service to prosecute offences on behalf of the Attorney General are breaches of Canada’s treaty promise and commitment. These historic and ongoing breaches of the treaty promise and commitment have materially contributed to the national crisis of health and public safety in First Nations.

Honourable senators, Chief Robert Louie of the Westbank First Nation, acting in his capacity as chairman of the Lands Advisory Board, wrote to MKO Grand Chief Settee on April 5, 2023, to endorse the type of amendments to the Director of Public Prosecutions Act that were pursued in MKO’s submission on Bill C-32. These amendments now appear in Bill S-272 with the endorsement of the Lands Advisory Board.

Acting in his capacity as Chief of the Westbank First Nation, Chief Louie also wrote MKO Grand Chief Settee with a request:

I would like to see any change to federal law encompass Indian Act by-laws, the Framework Agreement and other self-government agreements such as the Westbank Self‑Government Agreement.

Colleagues, therefore, in addition to addressing the currently “stranded regimes” of Indian Act bylaws and Land Code laws, the enactment of Bill S-272 into law is intended to address and clarify with conclusive certainty that the Public Prosecution Service of Canada has a duty to prosecute offences under:

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

Bill S-272 also provides that PPSC will not initiate or pursue a prosecution:

. . . if the First Nation that made or enacted the First Nation law has appointed or retained a prosecutor or entered into an agreement with a provincial or territorial government for the prosecution of summary conviction offences created by its First Nation laws.

The enactment of Bill S-272 into law will clarify with conclusive certainty that it is the will of Parliament that offences pursuant to all duly enacted First Nation laws are to be effectively prosecuted by PPSC on behalf of the Attorney General of Canada unless a First Nation has expressly made other arrangements to pursue prosecution.

Honourable senators, I am honoured to share with you that I had the privilege of closely collaborating with representatives from Manitoba Keewatinowi Okimakanak, or MKO, and the Lands Advisory Board, or LAB, and that they played a major role in developing the version of Bill S-272 that was submitted to our legislative council. This represents 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, with the United Nations Declaration on the Rights of Indigenous Peoples Act.

MKO stated that this co-development by a senator with First Nations is consistent with the call for the actions of the government to be on a nation-to-nation basis and consistent with the principles of reconciliation, as emphasized in the Deputy Prime Minister’s response on December 7, 2022, to the question by Senator Loffreda in committee on Bill C-32.

MKO has also recently engaged in a legislative co‑development exercise with Manitoba’s Minister of Justice to secure the introduction, consideration and passage — on May 30, 2023 — of amendments to Manitoba’s Provincial Offences Act, which will, for the first time in Manitoba, create a ticketing regime for First Nation laws. Similar provincial laws to create a ticketing regime for First Nation laws were pursued by First Nations, and were passed into law by Alberta on December 9, 2020, and by Saskatchewan on May 11, 2023.

Together with the enactment of the amendments to the Director of Public Prosecutions Act set out in Bill S-272, these provincial ticketing regimes for First Nation laws will significantly enhance the ability of the Public Prosecution Service of Canada to potentially prosecute offences under First Nation laws in Alberta, Saskatchewan and Manitoba.

As a key part of the ongoing efforts of MKO Grand Chief Settee to secure the effective recognition, respect, enforcement and prosecution of First Nation laws, MKO has successfully pursued 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 section 81 and section 85.1 of the Indian Act.

The renewed protocol is 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 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.

It is MKO’s understanding that the two-year pilot project — of PPSC, 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 which 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 the potential enforcement by RCMP and prosecution of offences by PPSC pursuant to their Indian Act bylaws through a similar protocol process.

As well, the protocol does not deal with 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 which has entered into a self-government agreement.

First Nations have fought to change the story that Canada has proclaimed for them. The deleterious effect of removing self‑determination, and the horrible consequences, is a story of an environment that was made vulnerable — not that First Nations were broken. In the article entitled “Indian Act Colonialism: A Century of Dishonour, 1869-1969,” author John Milloy states:

. . . in 1836, the Upper Canadian Attorney General, R. amieson, gave evidence of the continuation of [the constitutional norm of the Proclamation of 1763]. 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. . . . [when] First Nations’ self-government, was sacrificed to Macdonald’s proclaimed assimilative duty.

In 1867, with the passage of 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, a third order of government. . . . the 1869 . . . Act — an “Act for the Gradual Enfranchisement of Indians, the Better Management of Indian Affairs,” indicated its dedication to assimilation. . . . 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. . . . the powers of the council to make laws for communities were limited to such a degree that they were no longer in any meaningful way self-governing.

In the early 1980s, the Charter of Rights and Freedoms had a section providing constitutional protection for treaty and Aboriginal rights. In November 1983, the House of Commons Special Committee on Indian Self-Government presented its findings, and urged expanded powers for First Nations governments, which, in some instances, would go beyond the traditional municipal model.

In the 1990s, Indian Affairs announced a policy on the inherent right of self-government. In 2023, we have the First Nations Land Management Act. It is time to end the 247 years of formal Indian administration which is still grappling with an Indian question that they created and supported, and, in the end, it was a racist act.

I call upon all honourable senators to fully support the self‑determination and enhanced law-making powers of all First Nations in Canada that are intended by Parliament through Bill C-428, and for those First Nations that choose to exercise the law-making authority intended by Bill C-49, as well as by a First Nation under a self-government agreement entered into between a First Nation and Canada.

I call upon my honourable colleagues to fully support, endorse and pass Bill S-272, which will enact amendments to the Director of Public Prosecutions Act that will clarify and confirm with conclusive certainty the jurisdiction of the Public Prosecution Service of Canada to potentially prosecute offences under First Nation laws on behalf of the Attorney General of Canada.

Sending Bill S-271 and Bill S-272 to committee as quickly as possible to investigate this quagmire that continues to increase uncertainty in First Nations lives would be a step toward restoring what should never have been taken away.

Kinanâskomitin, meegwetch, mahsi’cho, thank you.

(On motion of Senator McPhedran, debate adjourned.)

Hon. Mary Jane McCallum introduced Bill S-272, An Act to amend the Director of Public Prosecutions Act.

(Bill read first time.)