June 1, 2024

Why aren’t the RCMP enforcing Indian Act bylaws? Aren’t they federal laws?

The lack of enforcement of Indian Act bylaws have plagued Indigenous communities since Parliament repealed s. 82 of the Indian Act in 2014. Section 82 previously provided that new bylaws undergo ministerial review, with a power of the minister to disallow them. After the 2014 amendment, band councils could pass bylaws without ministerial review. A problem arose, however, that the prosecution service decided not to prosecute any bylaws not approved by government. This led the RCMP refusing to take any action in relation to Indian Act bylaws which would not be prosecuted. For example, on June 1, 2023, in response to a question from Chief Hubert Watt of God’s Lake First Nation, the chief prosecutor of Manitoba specifically said:

“… 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.”

(as reported by Senator Mary Jane McCallum in an October 3, 2023 Senate speech concerning bill S-271 here)

This is in spite the fact that the RCMP has specifically stated that “…band bylaws are treated as federal laws that are enforceable by the RCMP, the police of jurisdiction or the band bylaw enforcement officers” (as also reported by Senator McCallum in the same speech). 

Somehow, this situation – not having been caused by band councils at all – has left whole communities without any enforcement mechanism for bylaws designed by band councils to protect their communities.

Rule of Law

It’s pretty clear what this means on the ground: Indigenous governments, including band councils with Indian Act bylaw-making powers, expend efforts to respond to public safety problems via bylaws only for the local police to ignore them – lawlessness ensues, the authority of Indigenous governments is weakened, community members are forced to accept the presence of crime, and the path towards reconciliation becomes ever longer and rockier. 

On a national and constitutional level, the government’s inaction wreaks havoc on the  fundamental principle of Rule of Law – that all, including government, is subject to the law and all, including government, are obliged to obey the law (Attorney General of Canada v. Lavell, 1973 CanLII 175 (SCC) at pg 1366).The Rule of Law is one of the underlying constitutional principles identified by the Supreme Court of Canada in the famous Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 SCR 217. The Attorney General of Canada, in particular, is the guardian of the Rule of Law (References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at para 417).  In the Secession Reference, the SCC identified one aspect of the Rule of Law to be that “the exercise of all public power must find its ultimate source in a legal rule” (para 71, quoting the Provincial Judges Reference). 

There is a fundamental tension behind police and Crown refusal to enforce Indian Act bylaws. These are, after all, Crown subordinate legislation, enacted by Indigenous governments. Indian Act have had recognized validity by the Crown state long before the Crown began to recognize the validity and existence of Aboriginal rights and title, including rights of self-government. One key object of both Reconciliation and the process of aligning Crown laws with the United Nations Declaration on the Rights of Indigenous Peoples is the creation of jurisdictional space for Indigenous governing bodies to exercise their own laws. The “ultimate source” of those exercises of public power would be a “legal rule” from an Indigenous legal order, not a legal order of the Crown (i.e. the common law, or the civil law in Quebec). 

That it is difficult to get the authorities to enforce Indian Act bylaws shows that our society is still, unfortunately, far away from true recognition of Indigenous legal orders as part of Canada’s constitutional structure. Absent that, however, many Indigenous communities have taken the strictures of the Indian Act and passed bylaws that are also sourced in Indigenous legal orders. The difficulty is that the reason the Crown recognized those laws as legitimate is because they remain theoretically derived from the Crown’s own authority, and subject to oversight from Crown courts.  

Yet, the police don’t appear to recognize them. This is a basic problem that has no reason to exist.  At this level, it’s not a question of the police and prosecution service having difficulty with the legal status of purely Indigenous laws made outside the authority of the Indian Act, it’s a question of those Crown actors failing to enforce laws that are already recognized even under Canada’s colonial constitutional order. 

The issue of Crown recognition of purely Indigenous laws and Indigenous self-governance continues to play out in the courts and throughout society. The infamous Coastal Gaslink Injunction against Wet’suwet’en land defenders was issued, in part, because the BC Supreme Court found that Wet’suwet’en law was not recognized as “an effectual part of Canadian common law or Canadian domestic law” (Coastal GasLink Pipeline Ltd. v Huson, 2019 BCSC 2264, paras 127-128). That is an example of Indigenous laws actively conflicting with Crown laws, creating a Rule of Law vacuum – a vacuum that can only be adequately filled with Indigenous jurisdiction. 

Until the Crown fully recognizes Indigenous sovereignty, situations like Coastal GasLink (a saga that continues to date) and the Nuxalk Nation’s eviction (grounded in Indigenous law) of a provincially-authorized mineral exploration company from their Territory in 2021, will continue. 

In the meantime, the very least the Crown can do is enforce Indigenous laws explicitly made under Crown authority. It is deeply concerning that Indigenous communities cannot rely on local police to enforce their own bylaws. It’s simply another way in which Indigenous communities are underserved. 

Current attempts to “require” enforcement of federal law: Bills S-271 and S-272

As an attempt to deal with the lack of enforcement of Indian Act by-laws, the Honourable Senator Mary McCallum introduced both Bill S-271, to amend the Royal Canadian Mounted Police Act (the “RCMP Act”) and Bill S-272, to amend the Director of Public Prosecutions Act (the “DPP Act”).

Bill S-271 seeks to amend s. 18 of the RCMP Act to establish an express duty of RCMP members who are peace officers to prevent crime and offences against First Nation laws, among others, and to perform all duties and services in relation to First Nation laws, among others. 

Bill S-272 seeks to amend the DPP Act to add an express provision that, “the Director initiates and conducts 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-271, at least, is redundant – the RCMP already have the duty to enforce Indian Act bylaws, because they are simply subordinate federal legislation. And therein lies a potential weakness of this amendment, would the RCMP change their policy if the law really has not changed much? As mentioned previously, the RCMP largely appears to view Indian Actby-laws as valid federal laws but they are still unwilling to enforce them. Would this amendment really make them change their tune? Likely not, without more.

Conclusion

While Indigenous peoples continue to be on the brunt end of police violence and are actually over-policed especially in urban areas, there is a sad irony that Indigenous communities are simultaneously under-policed when it comes to the enforcement of their own bylaws. While Reconciliation and the alignment of laws with UNDRIP will take time, there is no reason why the Crown cannot enforce Indian Act bylaws immediately. The Rule of Law demands no less.