Enforcement on First Nations Reserves and the “Phantom” First Nations Policing Policy – Appearance before the Standing Committee on Indigenous and Northern Affairs
May 14, 2021
Ottawa, ON –
On Thursday May 13, 2021, Chief Roland Morrison of Nishnawbe Aski Police Service (“NAPS”) and Julian Falconer of Falconers LLP had the honour of appearing virtually before the parliamentary Standing Committee on Indigenous and Northern Affairs. The topic of discussion was ‘Enforcement on First Nations Reserves’.
Julian Falconer, speaking as counsel for NAPS, spoke about the legal perspective on enforcement. Committee members were particularly interested in Mr. Falconer’s feedback on the outdated, “colonial” terms and conditions of the First Nations Policing Program (“FNPP)”, under which NAPS and other Indigenous police services operate. These Terms and Conditions restrict NAPS from, for instance, accessing legal advice in respect of funding, or from operating specialized units such as canines or emergency response teams.
Mr. Falconer, along with Chief Morrison, engaged in a fruitful dialogue with the committee, educating them on how the Terms and Conditions ignore the existence of the existing First Nations Policing Policy, which contains a number of progressive policy objectives. This Policy, which is still in effect, contains none of the restrictions imposed by the Terms and Conditions, instead calling upon Canada to ensure equitable funding and quality of service. However, in 2014 Public Safety Canada told the Auditor General that the Terms and Conditions were “an evolution” of the original 1996 Policy, and that the Policy could be disregarded going forward. This, Mr. Falconer explained to the Committee, was “a trick.” Comparing the documents, it is clear that the Terms and Conditions were meant to obfuscate the Policy principles, because the original Policy was, and remains, far more progressive. In effect, the policy became a “Phantom Policy” – invisible from public-facing materials, absent from discussions around First Nations policing, and quietly removed from the PSC website.
Chief Morrison additionally detailed the important work of NAPS as the largest Indigenous police service operating in Canada today. Chief Morrison emphasized the continued need for equitable funding for First Nations police services, and that they should be treated with the same authority and standards that apply to non-Indigenous police services. Chief Morrison also described the challenges of enforcement on reserves, first from a practical perspective – many communities are remote and face difficult socioeconomic conditions. He also discussed the ongoing failure of Canada and Ontario to allocate resources for prosecution of charges laid by NAPS officers.
Mr. Falconer also educated the committee on a recent initiative involving the passing of Band Council Resolutions (BCRs) aimed at protecting communities from COVID-19. The BCRs rely on a unique combination of existing Indigenous sovereignty and existing provincial legislation such as the Trespass to Property Act and Emergency Management and Civil Protection Act, to create a similar offence framework as found in cities and provinces across the country.
Committee members seemed receptive to the submissions and an engaging question and answer period ensued, revolving around the policing needs of Indigenous communities.
Video of the Meeting – May 14, 2021
The First Nations Policing Policy (1996) can be found here:
First Nations Policing Policy
NAPS’s presentation materials can be found here:
NAPS Submissions Presentation