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In 2019, the federal government passed groundbreaking Indigenous child welfare legislation. Although not perfect, it took the critical step of recognizing the inherent right of self-government, including jurisdiction and legislative authority over child and family services. 

This rights-recognition approach ‚Äď now the baseline for all new legislation regarding Indigenous Peoples ‚Äď can help Canada fix another persistent, systemic issue: First Nations policing. Puzzlingly, the federal government is proposing a legislative pathway that goes in the opposite direction.¬†

In early 2024, Public Safety Minister Dominic LeBlanc shared a discussion document on this legislation, which was originally intended to treat First Nations policing as an essential service by mandating adequate funding to meet the needs of First Nations police services and the communities they serve. 

However, the draft legislation does not do this.  

The government should correct its course and table legislation that treats First Nations policing as an essential service by guaranteeing adequate funding and recognizing First Nations self-determination over policing. The safety and well-being of Indigenous individuals and communities depend upon it. 

The First Nations policing program began in the early 1990s. For years, Indigenous leaders have been calling for it to be declared an essential service, which would provide a legislative accountability mechanism to ensure that funding and services meet the needs of First Nations. In 2020, the Trudeau government finally promised to do that. 

The proposed legislation is meant to move beyond the current funding approach, which results in underfunded and inadequate services that are far below what other Canadians take for granted. The current approach is entirely discretionary and therefore subject to the whims of the governments of the day. 

The funding is split 52/48 per cent between the federal and provincial governments and therefore requires the approval of both levels. This generally means the overall funding is determined by whichever government puts the least amount on the table. 

Unfortunately, the draft legislation falls far short of guaranteeing adequate funding while also backtracking on the legislative reconciliation approach started with the federal government’s Indigenous child welfare legislation. 

Return to the assimilation approach? 

In February, the Supreme Court of Canada unanimously upheld the federal Indigenous child welfare legislation after Quebec challenged the self-government provisions. This ended the legal uncertainty that could have made Ottawa cautious about adopting a similar approach in the policing legislation. 

The Supreme Court‚Äôs reasons are instructive. Its ruling describes how ‚Äúlawmakers have wrongly employed a policy of assimilation‚ÄĚ until recently when the government abandoned that in favour of reconciliation, including ‚Äúlegislative reconciliation,‚ÄĚ which promotes and protects inherent rights.¬†

With its draft policing legislation, Canada seems to be moving back toward the assimilation approach by tying First Nations to provincial policing legislation. 

This will impose often-inappropriate provincial policing standards and models on First Nations and stymie efforts to pass their own laws to implement approaches based on their unique needs and cultures. 

It also goes against calls for broader reform from the auditor general and repeated requests from First Nations leadership to continue with the legislative reconciliation started with the child welfare legislation. 

Legislative reconciliation is important in its own right as a recognition of pre-existing inherent rights. But it is also instrumental as a means to an end. 

First Nations challenges need First Nations legislation 

First Nations have unique challenges and opportunities that often require their own unique legislative solutions. First Nations know best what they need. For adequate, culturally appropriate and needs-based services, First Nations must be able to choose the model of policing that best suits them ‚Äď not have provincial models imposed.¬†

Settler legal systems have contributed to the gross overrepresentation of Indigenous Peoples as victims of crime and as incarcerated persons. This has been called a crisis by the Truth and Reconciliation Commission, the National Inquiry into Missing and Murdered Indigenous Women and Girls and the Supreme Court. 

Recognition of the inherent right of self-government over policing is one of the ingredients needed to address this issue. 

With that recognition, First Nations could, for example, set their own policing standards, define codes of conduct governing their officers, promote restorative justice approaches, implement alternative policing models, appoint their own officers, determine officer qualifications and do away with provincial requirements that interfere with achieving community safety. 

More fundamental changes are also certainly possible. Legislation cannot solve everything, but it is an important step forward and can remove critical barriers. 

The Supreme Court’s recent decision also relied heavily on Article 4 of the United Nations Declaration on the Rights of Indigenous Peoples, citing it three times. 

Article 4 of that declaration provides that ‚ÄúIndigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs as well as the ways and means of financing autonomous functions.‚Ä̬†¬†

That article and Canada’s United Nations Declaration on the Rights of Indigenous Peoples Act strongly support recognition of the inherent right of self-government over policing as well as the provision of adequate funding for the exercise of such a right. 

Self-government without adequate funding is a hollow right. 

Recently, human rights legislation has been used to hold Canada accountable. For example, the Canadian Human Rights Tribunal recently found the federal government discriminated against a Quebec First Nation by underfunding its police service over several years. However, legislation is needed so First Nations do not need recourse to the tribunal. 

Legislation with a funding guarantee is essential to create the secure, funded and legislated policing services for First Nations that other Canadians take for granted.  

Indigenous community safety requires both recognition of the inherent right of self-government over policing as well as a guarantee of the necessary funding. 

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Naiomi Metallic
Naiomi Metallic is from the Listuguj Mi’gmaq First Nation in Quebec. She is a full-time faculty member at the Schulich School of Law at Dalhousie University and holds the Chancellor’s Chair in Aboriginal Law and Policy. Prior to joining the law school, she practised law for nearly a decade with Naiomi Metallic is a Mìgmaq from the Listuguj First Nation, an associate professor and chancellor’s chair in aboriginal law and policy at the Schulich School of Law at Dalhousie University and counsel with Burchell Wickwire Bryson LLP in Halifax. LLP, in Halifax, and remains an active member of the firm’s Aboriginal law practice group.
Kent Elson
Kent Elson is a Toronto-based lawyer and principal at Elson Advocacy. He represents the Chiefs of Ontario on policing and justice-related matters, including the federal government’s planned First Nations policing essential service legislation.

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