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3.2  Administration of Justice


 

3.2.1. Background

Administration of justice is one of the most complex areas to address in re-establishing First Nations governance, and cuts across all other subject matters.  It is complicated because the nature of First Nations law-making can extend from simple municipal “by-law” infractions to complex matters normally dealt with at the provincial level.  Canada does not recognize or agree that our Nations should have jurisdiction over criminal matters, yet our Nations are increasingly becoming involved in the Canadian judicial processes as they relate to criminal infractions through alternate sentencing programs, sentencing circles and other initiatives.  While at this time these are administrative arrangements and First Nations do not the exercise jurisdiction, they are, nevertheless, an important development in the administration of justice as it relates to our peoples and our governments.

Administration of justice is, however, considerably broader than criminal matters and involves adjudication of civil, health and safety and regulatory matters that will be addressed under First Nations laws, whether made under the Indian Act or under First Nations jurisdiction in a sectoral or comprehensive governance arrangement.  In addition, there are the review mechanisms for laws and decisions made by First Nation governments or bodies to ensure they conform to required procedures and fall within the jurisdiction or authority of the decision-maker.

Having access to a system for adjudicating disputes and review that is fair, impartial, cost effective and quick is essential to the functioning of any organized society.  Principles of natural justice (an opportunity to be heard by an unbiased adjudicative body) are enshrined in the Canadian judicial system.  These are principles of good governance found in the institutions of any well-run government.  Our citizens will demand no less of our own institutions in this area and will be concerned about how our Nations deal with adjudication under their laws and how justice will be administered post-Indian Act.  

Developing appropriate justice systems for First Nations that reflect our values and our traditions and that can work within the broader justice systems within Canada to meet our contemporary needs is a challenge and an evolving area of law.  If recognition of a First Nation’s justice system is one of your Nation’s objectives, it will require a favourable court decision or negotiations with Canada and the province, as the Canadian Constitution provides both the federal and provincial governments with jurisdiction in the area of justice.

One key consideration involves the application of the Canadian Charter of Rights and Freedoms, (Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11), which forms part of Canada’s Constitution and enshrines protections for the individual.  Canada’s view in negotiations is clear that recognition of a Nation’s governance powers (including administration of justice) involves a commitment to be bound by the Charter.  There have not been many rulings specific to the application of the Charter to First Nations.  However, given the constitutional nature of the Charter, the explicit acknowledgment in section 25 of the Charter of the uniqueness of First Nations’ circumstances and the significance placed upon the Charter by the courts, many Nations are working to develop justice systems based on the reasonable assumption that courts will probably apply the Charter to a First Nation’s justice system.

This can cause problems, because the Charter may not always fit with our traditions and practices, which favour collective over individual rights.  However, our citizens, while respecting our collective rights, have, as Canadians, also come to expect protection of their rights as individuals.  There is therefore a need to balance these interests.  This is clearly recognized in the Charter itself.  Section 25 provides that the Charter shall not be interpreted or applied in a way that takes away from the Aboriginal or treaty rights of Aboriginal peoples, including rights in the Royal Proclamation of 1763 or in a land claims agreement.  There have been few court decisions on section 25, but it is seen as providing recognition of Aboriginal rights and as a shield against the inappropriate application of the individual rights reflected in the Charter.  Thus section 25 is a mechanism that ensures that the interpretation of the Charter must take into account our collective rights.  As we develop our systems of justice, we will need to be mindful of this and how we can make this clause work in practice. 

Customary law is not in itself contrary to the rule of law.  However, where customary values are embodied in our institutions and procedures, they must be understandable by our citizens and those affected by our laws.  They must also be clear and capable of being understood by whatever body is adjudicating First Nations law (i.e., courts or tribunals).  This applies to all aspects of governance and law, whether prosecutions under our laws, challenges to decisions, laws made by our governments or interpretation of our laws if third parties are relying on them.

Before consideration is given to administering a law, the First Nation must enact the law.  The way in which a law is enacted and its contents are important, as these elements may themselves become the subject of a challenge or review proceedings.  Procedures for law enactment are usually set out in the Nation’s core institutional documents, often in its Constitution (see Section 2.4 - The Constitution) and follow principles of openness, transparency and accountability.  Law-enactment procedures should be strictly observed to minimize, when the law is enforced or decisions are made under it, the likelihood of challenges to its validity based on how it was made.

Persons need to know what laws apply to them and all governance arrangements include provisions for the laws to be publicly available.  The drafting quality of our laws is something our governments need to consider.  While there are precedents for laws in many of the sectoral governance initiatives (e.g., model land codes and financial management laws, etc.), the truth is there will a great diversity of laws made by our Nations in many areas.  This can be seen in the hundreds of ordnances already enacted and set out in the appendices to the various chapters in Section 3.  Sample laws are helpful, but cannot be simply adopted without analysis of their suitability to your Nation’s circumstances.  Drafting laws is difficult.  All the provinces and the federal government have experienced legal teams that draft legislation, regulations and other key documents.  Some of our Nations are developing this expertise, but for the most part we are too diversified and have limited resources.  There has been past talk of establishing a body to assist First Nations in drafting laws, once the policy outline for the law has been developed in the community.  This merits further discussion.

For any government there are three fundamental aspects to the administration of justice where violation of a law is alleged:

  • Enforcement
  • Prosecution
  • Adjudication

 

Enforcement (Policing):  Policing on reserve is typically provided by the RCMP and is not a responsibility for First Nations under the Indian Act.  Through the Police Act, (R.S.B.C. 1996, c. 367) (British Columbia), the RCMP is authorized to act as the provincial police force.  In BC, in those jurisdictions where there is no municipal police force, the RCMP provides policing services in accordance with the Province of British Columbia Provincial Police Service Agreement (April 1, 1992).  This agreement expires in 2011.  There is no specific mention of First Nations in this agreement.  In addition, the RCMP, BC and First Nations have been entering into tripartite policing agreements to address policing on reserve by RCMP officers, with the cost of policing shared 52% Canada - 48% BC.  The RCMP’s responsibility is essentially to enforce the Criminal Code (R.S.C. 1985, c. C-46) and other federal and provincial laws, which can include Indian Act by-laws that are considered federal “regulations” under the Interpretation Act, (R.S.C. 1985, c. I-21).  Having said this, how policing is delivered is typically left to the RCMP to determine, based on available resources.  The reality in our communities is that by-laws are rarely, if ever, enforced.  There are 44 policing agreements in BC.  It is contemplated that there will be variation on the standard agreement for self-governing Nations, with the RCMP explicitly agreeing to enforce First Nation laws, and where the law-making powers of the Nation extend significantly beyond Indian Act by-law powers.

While in other parts of Canada  First Nation police forces, established through agreements between Canada, a province and a First Nation, are quite common, in BC the only First Nation police force is the Stl'atl'imx Tribal Police Service (STPS).  STPS was established in December 1999 and evolved from a security program implemented by the Lillooet “band” council in 1986.  In 1992, a memorandum of understanding was signed between seven Stl'atl'imx Nation communities, the federal solicitor general and the attorney general of BC, which established the peacekeeping program as a tribal policing pilot project.  The MOU included a protocol agreement with the RCMP which, as the provincial police force, retained jurisdictional authority in the participating communities. Modifications were made to the initial MOU, including the signing on by additional Stl'atl'imx Nation communities.  In 1999, the STPS was established as a designated policing unit and police force, with full jurisdictional authority under the Police Act (s. 4.1-4.2).  A five-year tripartite agreement was signed between the ten participating Stl'atl'imx communities and the federal and provincial governments. The STPS - RCMP Protocol Agreement was amended to reflect the increased role of STPS.  The STPS continues to provide policing services in the ten participating Stl'atl'imx communities.  Canada’s approach to First Nations’ policing is set out in the First Nations Policing Policy (Public Safety Canada).  A Handbook on the policy is available.

In addition to RCMP police officers or their own officers, some of our Nations have by-law enforcement officers to enforce the Nation’s regulatory by-laws (noise, unsightly premises, traffic, licensing, etc.), matters usually addressed by local or municipal governments.  Under treaty arrangements, however, Nations have the option of creating municipal police forces on the same terms and conditions as a local or municipal government would.

Enforcement of First Nation laws is an important consideration: without it, there will inevitably be less respect for these laws.  As part of governance reform, our Nations will want to consider the need for enforcement of our laws, who carries this out and who pays for it.  Communities with sizeable economic development opportunities and non-citizen populations will have different considerations from those facing Nation’s whose populations are predominantly citizens.  Policing is very expensive (the average RCMP officer costs around $156,000 per year). Our Nations will want to ensure adequate resources to provide the service needed for their circumstances.  In addition to police offices and by-law enforcement personnel, some of our Nations have guardians and watchmen. These may play an important role in educating people about First Nation laws and in reporting violations.

Prosecution: When a government, including our own, makes laws, someone needs to prosecute infractions. Our Nations have been and are considering who should prosecute our laws and how this will be paid for.

 

There are administrative issues in how Indian Act by-law infractions are prosecuted.  These include having provincial Crown prosecutors prosecute them in provincial courts or even having our own prosecutor to get the court registrar to place a matter on the provincial court list.  There have been discussions over the years as to how to make prosecutions more efficient.  The reality is few Indian Act by-law infractions are actually prosecuted.  Whether this stems from the absence of better administrative arrangements or other factors is not clear.  Certainly, the issue needs to be addressed.

 

In some cases, a Nation may appoint its own prosecutor, who may be a lawyer on retainer or an in-house prosecutor, depending on the size of the Nation.  In other cases, the service might be provided by Canada or BC.  This is normally a matter to be negotiated at the time a sectoral or comprehensive governance arrangement is negotiated.  Whoever conducts the prosecution must be mindful of the Charter of Rights and Freedoms and the rules of natural justice in conducting the prosecution.  At this point in the evolution of modern First Nation government, this remains an undeveloped area, as few of our Nations are prosecuting violations of their laws.  

Adjudication: All sectoral and comprehensive governance arrangements make provision for which body (tribunal or court) will hear prosecutions for the violation of First Nation laws. Whatever the adjudicating entity, to have public respect and legal validity it must meet basic natural justice and fairness requirements (i.e., speedy information on charges, absence of bias, opportunity to be heard, trial without unreasonable delay, innocent until proven guilty, etc.).

In the past, which court has jurisdiction to hear cases involving our Nations’ laws has often been an issue.  By default, some agreements and arrangements refer to the “court of competent jurisdiction,” which begs the question.  Where possible, it is good to clearly identify which court will hear what issues.  In this regard, there is currently no agreement with Canada for recognition of a First Nation court beyond the limited powers of a justice of the peace appointed under section 107 of the Indian Act to hear minor Criminal Code offences occurring on reserve and offences against First Nations by-laws.  Only a few such justices have been appointed by Canada and none since the mid-1990s.  While of some usefulness, section 107 is not seen as the best form of recognition of our Nations’ jurisdiction over adjudication of violations of our laws.  What many Nations want is a court exclusively established under a First Nation’s jurisdiction and recognized by all governments in Canada.

There also has been talk of establishing local community courts specific to a Nation and dealing only with its laws.  In all such cases, the jurisdiction of the court would need to be carefully considered.  Another option is to improve the justice of the peace system and create a regulatory framework applicable in a First Nation context.  There are a few examples of Nations relying on their Aboriginal right of self-government to establish their own courts (e.g., the Akwesasne Mohawk Court) and other adjudicative bodies.  There remains the challenge, however, of getting Canada to formally recognize such bodies and provide financial support for their administration.  While a First Nation’s court should respect and follow rules of natural justice and fairness, this does not mean its procedures, layout and other matters need to mirror Canadian courts.  The Canadian court system is often alien to First Nations citizens and designing your own justice system can address these challenges.  A First Nation court can reflect your Nation’s traditions, practices and customs and in its set up and proceedings and allow participants to feel safer and more comfortable.  For example, a fair court proceeding does not require the judge to sit on a raised bench or the often intimidating procedural formality.  First Nations have the opportunity to create our own truly fair and accommodating justice system.

 

Another option is the creation of a specialized First Nations court to deal with all First Nation prosecutions.  There has been discussion in the past of establishing either a First Nation’s court (under provincial superior court) or a special federal court under s.101 of the Canadian Constitution to deal with issues arising out of the exercise of jurisdiction by First Nations.  There is merit to the idea that the court would gain experience and practice in dealing with First Nations law.  However, given the diversity of First Nations and the range of law/by-law making powers, the efficiency of such a court could be questioned.

Implicit in any court system is the keeping of meticulous records, so that precedents can guide future decisions and appeals be well grounded.  This can be a much more expensive function than some might imagine.  While cost should not be a deciding factor in establishing a court, it does add to the attraction of having general courts that are well versed in and willing to apply Aboriginal law.  It also underlines the need to write laws that fit in with the existing body of Canadian law.  This is important, because with all of the options above there is also the consideration of having the First Nations adjudicative body’s decision recognized beyond its geographical boundaries.  This is an important for giving “teeth” to a ruling.  

The previous paragraphs focus on violations of a First Nation’s law.  There are other areas where the adjudication of disputes or providing review mechanisms needs to be considered by a First Nation in developing its vision and strategy for the administration of justice.

Many First Nations now control their own elections and citizenship codes (see Section 3.6 - Citizenship and Section 3.8 - Elections).  In these areas, there is a need for adjudication of disputes (election appeals, applications for citizenship, appeals against rejection of citizenship applications, etc.).  First Nations establishing their own election or citizenship codes have generally created boards, committees or tribunals to carry out these functions.  The rules guiding such bodies need not be complicated but should follow natural justice in allowing individuals the opportunity to be heard and decisions by an unbiased board or tribunal.

There are other regulatory areas where a Nation may want to make laws (licensing of businesses, issuance of building permits, health and safety certifications, etc.).  The Indian Act in sections 81 and 83 provides by-law-making powers for a Council in many of these areas.  In addition, there are property tax powers in section 83 of the Indian Act that require assessments and property taxation, and a mechanism for appeal and review of these decisions is needed.  Sectoral and comprehensive governance arrangements reflect and expand on many of these powers.  As a result, appeal and review bodies for these matters should be recognized as part of the Nation’s jurisdiction and any implementation plan.

Finally, there should be consideration of other review mechanisms, such as judicial review.  These mechanisms are found in most government and judicial systems and provide a means whereby certain decisions by government or a decision-making body can be challenged.  Such challenges can be on the basis that the government or decision-maker did not have the jurisdiction or authority to make the decision or that they did not follow proper procedure (their own rules or the rules of natural justice).  There is an extensive body of court decisions describing when a decision is “administrative” only and not subject to review and when a decision is more than that and subject to review.  Most of the comprehensive governance arrangements address this subject and provide for judicial review mechanisms.  Some say the provincial Judicial Review Procedure Act (R.S.B.C. 1996, c. 241) applies to the First Nation’s governing body.  Another approach might be to have Federal Court review-mechanisms apply.   Some Nations may wish to take a different approach and seek recognition of their jurisdiction to establish such mechanisms and make a commitment to do so in the self-government agreement.  Our Nations always, however, need to be aware of the complexity of these systems and the costs involved.  Accordingly, reliance on provincial or federal court review procedures may prove to be the most effective route in this initial phase of re-establishing a Nation’s justice systems.

Overall, when considering the administration of justice, our Nations need to ensure there is quick, fair and efficient access to adjudication under their laws and that the costs are manageable, both for the individuals involved and for the Nation administering the justice system.

 

3.2.2. Indian Act Governance

Under the Indian Act, a First Nation can include enforcement previsions in its by-laws with maximum penalties on summary conviction of $1,000 and 6 months imprisonment.  Infractions are prosecuted by Canada and the First Nation, although this is rareExcept for matters expressly reserved for the Federal Court under the Indian Act, and except for challenges to a council’s jurisdiction under the Indian Act, provincial courts can hear cases on “Indians” and “lands reserved for Indians.”  They can also hear cases based on customary law, whether that law is recognized under an agreement with the Crown or not.

Our Nations can appoint by-law officers under the by-law making power but the authority under the Indian Act is neither specific nor clear.  Offences under the Indian Act are created in s. 30, trespass; s.81(2),(3) enforcement of by-laws; s.90(3), restriction on transfer of property; s.91, trading; s.92, trading without a licence; and s.93, removal of material from reserves.

 

Under section 107 of the Indian Act, the Governor in Council may appoint justices of the peace with the powers and authority regarding any offence under the Indian Act or under the Criminal Code relating to cruelty to animals, common assault, breaking and entering and vagrancy, where the offence is committed by an Indian or relates to the person or property of an Indian.  There is currently a moratorium on appointing justices under this section.

 

3.2.3. Sectoral Governance Initiatives

There is no specific sectoral initiative addressing the administration of justice (notwithstanding the Stl'atl'imx Tribal Police Service, if it can be considered a sectoral initiative), although several sectoral governance initiatives address the justice aspects of the subject they are considering.  

 

Framework Agreement on First Nation Land Management (1996): Section 24 of the First Nations Land Management Act (S.C. 1999, c. 24) allows a Nation that has made a Land Code to appoint justices of the peace to enforce the Nation’s laws, including adjudication of offences.  This is an important power, one of the few examples of recognition of First Nation administration of justice powers.  For more in-depth discussion of the Framework Agreement, see Section 3.19 - Land Management.

 

First Nations Fiscal and Statistical Management Act (S.C. 2005, c. 9)(FSMA):  Another example of justice powers in a sectoral governance initiative is found in the FSMA.  In terms of this Act, on specific matters the First Nations Tax Commission acts as a quasi-judicial body in that it can hear and make a ruling on whether a First Nation’s local revenue law is being properly administered as well as on issues arising from the implementation of the Act.  For a more in-depth discussion of the FSMA, please see Section 3.11 - Financial Management.

 

3.2.4. Comprehensive Governance Arrangements

All the comprehensive governance arrangements address the various aspects of the administration of justice considered in the background section above.

The Tsawwassen legislature has enacted some 25 laws, many of which regulate the activities of Tsawwassen citizens and entities and other parties on Tsawwassen lands and establish certain obligations that must be met.  Tsawwassen is responsible for the administration and enforcement of Tsawwassen laws.  The legislature establishes processes and procedures to enforce Tsawwassen laws, including determining the guilt of parties charged with offences.  Tsawwassen also establishes its own appeal procedures, including for administrative decisions.   The legislature has passed an Administrative Review and Judicial Proceedings Act, which establishes processes and procedures and creates a “Judicial Council.”  Under many Tsawwassen laws, the Judicial Council hears cases and reviews or appeals of decisions or of actions by the Tsawwassen government or its employees.  The Judicial Council also has authority to encourage the use of consensual alternative dispute resolution methods in an effort to reduce reliance on the court system.  Under the Act, final orders of the Judicial Council will be enforced by the Provincial or Supreme Courts of British Columbia, as if they were orders of either of those courts.  Some final orders of the Judicial Council may be appealed to the British Columbia Supreme Court.  This includes administrative decisions where Tsawwassen law provides a right of appeal.  Where there is no right of appeal to the Supreme Court, the order or decision of the Judicial Council is final.  The Act provides for the appointment of a Tsawwassen First Nation prosecutor, responsible for prosecutions under Tsawwassen laws.  The Judicial Council also has the power of judicial review, which is the power to determine if Tsawwassen laws are valid under the Tsawwassen Constitution and treaty.  These decisions may be appealed to the courts of British Columbia.

Tsawwassen may appoint enforcement officers, including by contract with outside police forces.  If Tsawwassen establishes its own police force, the force must be governed by provincial rules.

 

While the Nisga’a have not yet drawn down all their powers in respect of the administration of justice as set out below, they have established a Nisga’a Administrative Review Board under the Nisga'a Administrative Decisions Review Act.  The board can review decisions of Nisga’a officials if a Nisga’a enactment assigns it the authority to do so and can consider whether decisions were fairly made.  The board cannot become a substitute decision-maker.  The same board has authority to hear matters concerning elections (nominations, running of the poll, etc.).  The Nisga’a government has authority to create “offences” punishable by conviction with maximum penalties.  Unless the Nisga’a create something different, such offences will be prosecuted in provincial court by a Nisga’a prosecutor.  Agreements can be entered into with other governments relating to the enforcement of Nisga’a laws provided questions of cost and control are satisfactory addressed.  Anyone can oppose the validity of a Nisga’a law.  In the Nisga’a example, a separate Nisga’a institution has not been created and any challenge to the validity of a law would go to the BC Supreme Court.  

 

Westbank has enacted approximately 40 laws.  These typically include standard provisions for offences, setting maximum penalties in accordance with the Westbank First Nation Self-Government Agreement.  In addition, there are extraordinary offences and enforcement powers for environmental protection infractions, but these have not been exercised.  Westbank has appointed law-enforcement officers to enforce Westbank laws.  The RCMP is also responsible for enforcing Westbank law.  Prosecution under Westbank law is in the provincial court with a Westbank prosecutor.  Westbank has an in-house legal counsel who acts as prosecutor for most infractions.  In addition, Westbank has established a number of special purpose adjudicative bodies or offices.  A ticketing and administrative structure has been established under the WFN Notice Enforcement Law No. 2008-02 and the WFN Dispute Adjudication Law No. 2008-01.  These laws provide for a more efficient and cost-effective way to hear disputes concerning infractions of Westbank law that are of a municipal nature (unsightly premises, noise, parking, etc.).  The use of this system obviates the need to have these types of disputes heard in provincial court.  Under the WFN Residential Premises Law, Westbank has established an “adjudicator” who can hear landlord and tenant disputes, these matters being appealable to provincial court.  Decisions of the adjudicator are registered as orders of the court.  Westbank also has established administrative appeal procedures for reviewing decisions of the administration in respect of program and service delivery.  This less formal process is not set out in a law but in a policy of the Nation.  Finally, under its property assessment by-laws, which are made under the Indian Act, Westbank has established an Assessment Appeal Board, before which ratepayers can challenge the valuation of their interests in Westbank Lands.

 

3.2.4.1. – Comprehensive Governance Arrangement - Comparative Charts

 

  Enforcement (Policing):

Sechelt

No provisions.

Westbank

The Westbank First Nation has jurisdiction to appoint and assign duties to officials for the enforcement of Westbank law on Westbank Lands and appoint officials as commissioners for taking of oaths. Where no officials have been appointed to enforce Westbank laws, the Royal Canadian Mounted Police are responsible for enforcing offences under Westbank laws. (Part XVIII, ss. 195-196)

Nisga’a

The Nisga’a Lisims Government has authority to establish a police board and a police service. This police service would have the authority to enforce Nisga’a laws, the laws of BC, the criminal law and other federal laws within Nisga’a Lands. (Ch. 12, ss. 1, 2.b, 3)

Tsawwassen

The Tsawwassen First Nation does not have the authority to establish a police force. (Ch. 16, s. 140(a).

However, Tsawwassen can negotiate the provision of federal or provincial enforcement officials or police forces by Canada or BC. (Ch. 16, s. 138);

pursue the establishment of a police force under provincial law (Ch.16, s. 141); or

appoint its own enforcement officials. (Ch. 16, s. 139).

Maa-nulth

The Maa-nulth First Nations do not have the authority to establish a police force. (s.13.32.3(a))

Maa-nulth can negotiate the provision of federal or provincial enforcement officials or police forces by Canada or BC (s. 13.32.2) ;

pursue the establishment of a police force under provincial law(s. 13.32.3(b)); or

appoint its own enforcement officials. (s. 13.32.1(a))

 

  Prosecution:

Sechelt

The Sechelt Indian Self-Government Act. does not identify responsibility for prosecuting matters arising from Sechelt laws.

Westbank

Westbank First Nation can retain its own prosecutor, enter into an agreement with Canada to arrange for federal agents to prosecute the offence, or enter into an agreement with Canada and the province to arrange for a provincial prosecutor. (Part XVIII, s. 200)

Nisga’a

The Nisga’a Lisims Government is responsible for prosecuting all matters arising from Nisga’a laws, including appeals. (Ch. 12, s. 51)

Tsawwassen

The Tsawwassen First Nation is responsible for all aspects of any prosecution
under Tsawwassen Law, including appeals. (Ch. 16, s. 148)

Maa-nulth

Each Maa-nulth First Nation is responsible for the prosecution of all matters arising from a Maa-nulth First Nation law of the applicable Maa-nulth First Nation Government. (s. 13.33.6)

 

  Adjudication:

Sechelt

The Sechelt Indian Self-Government Act. does not state which court has jurisdiction to enforce Sechelt laws or hear disputes in respect of Sechelt laws.

However, ss. 37 and 38 of the Act respectively provide for the continued application of federal and provincial laws of general application to the Sechelt Indian Band, its members and Sechelt Lands. Therefore, a review of the relevant federal or provincial legislation that sets out the jurisdiction of federal and provincial courts is required to determine which court has jurisdiction to enforce Sechelt laws or hear disputes in respect of Sechelt laws.

Westbank

The Provincial Court of BC has jurisdiction to adjudicate prosecutions involving Westbank laws. The summary conviction procedures of Part XXVII of the Criminal Code apply to prosecution of offences of Westbank law (Part XVII, s. 201)

Nisga’a

The Nisga’a have authority to establish a court. This court would have jurisdiction to impose penalties and other remedies under Nisga’a laws, BC laws or the laws of Canada in accordance with generally accepted principles of sentencing. An order of the Nisga’a Court may be registered in the BC Supreme Court and once registered, will be enforceable as an order of the BC Supreme Court.
(Ch. 12, ss. 30, 41 and 49).

The Nisga’a court, if established, would have jurisdiction to adjudicate prosecutions under Nisga’a laws; hear and decide disputes arising under Nisga’a laws between Nisga’a citizens on Nisga’a Lands; review administrative decisions of Nisga’a Public Institutions.
(Ch. 12, s. 38)

Until a Court is established, the Nisga’a prosecutions under Nisga’a laws will be heard in the Provincial Court of BC. (Ch. 12, s. 31)

Tsawwassen

Tsawwassen does not have authority to establish a court. (Ch. 16, s. 140(c)

At Tsawwassen’s request, Canada and BC would be willing to discuss and explore options for the establishment of a court, other than a provincial court with inherent jurisdiction or a federal court. (Ch. 16, s. 142)

Proceedings to enforce Tsawwassen laws must be brought before the Supreme Court of BC.
(Ch. 16, s. 145).

The Provincial Court of BC has jurisdiction to hear prosecutions of offences under Tsawwassen law (Ch. 16, s. 146).

The Provincial Court or Supreme Court of BC, as the case may be, has jurisdiction to hear disputes between individuals under Tsawwassen law (Ch. 16, s. 150).

Maa-nulth

Maa-nulth does not have authority to establish a court. (s. 13.33.8)

The Provincial Court has jurisdiction to hear prosecutions of offences under Maa-nulth laws and disputes between individuals under Maa-nulth laws, if those matters are within the jurisdiction of the Provincial Court under federal or provincial law. (ss. 13.33.1 and 13.33.4).

The BC Supreme Court has jurisdiction to hear disputes between individuals under Maa-nulth laws, if those matters are within the jurisdiction of the Supreme Court under federal Law or provincial law. (s. 13.33.5)

 

  Appeal mechanisms:

Sechelt

No provisions.

Westbank

Appeals from decisions of the Provincial Court regarding the enforcement of Westbank laws would effectively be governed by relevant provincial legislation that provides for the establishment and operation of this court.

Nisga’a

Supreme Court of BC has authority to hear appeals from any decisions of the Nisga’a Court, including prosecutions under Nisga’a laws; reviews of administrative decisions; and disputes between Nisga’a citizens on Nisga’a lands arising under Nisga’a laws.
(Ch. 12, ss. 45, 46, 47).

Tsawwassen

Appeals from decisions of the Provincial Court or Supreme Court of BC regarding the enforcement of Tsawwassen laws would effectively be governed by relevant provincial legislation that provides for the establishment and operation of these courts.

Maa-nulth

Appeals from decisions of the Provincial Court or Supreme Court of BC regarding the enforcement of Maa-nulth laws would effectively be governed by relevant provincial legislation that provides for the establishment and operation of these courts.

 

3.2.5. BC First Nations’ Laws/By-laws in Force and Other Activities

Indian Act Governance

By-laws – Section 81(1)(c) Observance of Law and Order

 

First Nation By-law# By-law Title Description

Gwa'Sala-Nakwaxda'xw

1994.01

LAW AND ORDER

By-Law Respecting A Judicial Council

 

By-laws – Section 81(1)(r) Summary conviction of a fine or imprisonment for a term or both for violation of a by-law made

 

First Nation By-law# By-law Title Description

Cowichan

2009-01

OBSERVANCE OF LAW AND ORDER

By-Law Respecting The Ban Of Sale, Possession And Use Of Fireworks

Halfway River First Nation

Unnumbered

ANIMAL CONTROL

By-Law Respecting Cattle Control

Lower Kootenay

Unnumbered

PENALTY PROVISIONS

By-Law Respecting Penalties

Musqueam

Unnumbered

CONSTRUCTION

By-Law Respecting Health And Safety Of Rented Residential Property

Soda Creek

2010.01

ANIMAL CONTROL

By-Law Respecting The Care And Control Of Animals

Soda Creek

2010.02

PREVENTION OF DISORDERLY CONDUCT AND NUISANCES

By-Law Respecting Open Air Fires

 

 

Comprehensive Governance Arrangements

 

First Nation By-law Description

Huu-ay-aht First Nations

 

Criminal Convictions Regulation (Code of Conduct and Conflict of Interest Act)

Huu-ay-aht First Nations

 

Criminal Convictions Regulation Elections

Huu-ay-aht First Nations

 

Offence and Law Enforcement Act

Huu-ay-aht First Nations

 

Tribunal Act

Ka:’yu:’k’t’h’/Chek’tles7et’h’ First Nations

 

Enforcement Act

Toquaht Nation

 

Enforcement Act

Tsawwassen First Nation

-

TFN Administrative Review and Judicial Proceedings Act

Tsawwassen First Nation

Nov 2009

Judicial Clerk Regulation

Tsawwassen First Nation

Mar 2011

Administrative Review and Judicial Proceedings Regulation

Tsawwassen First Nation

Jun 2009

TFN Judicial Council Rules of Procedure

Tsawwassen First Nation

Jun 2010

Consolidated Rules of Procedures

Tsawwassen First Nation

Apr 2009

TFN Laws Enforcement Act

Tsawwassen First Nation

059-2009

TFN Ticket Regulation

Uchucklesaht Tribe

 

Enforcement Act

Ucluelet First Nations

 

Enforcement Act

Westbank First Nation

2008-01

WFN Dispute Adjudication Law

Westbank First Nation

2008-02

WFN Notice Enforcement Law

Westbank First Nation

Dec 2008

WFN Law Penalty Schedule

 

Other

 

RCMP FIRST NATIONS COMMUNITY POLICING SERVICE (FNCPS) AGREEMENTS

British Columbia - First Nation Community Tripartite Agreement (CTA)

  • Canada/BC RCMP FNCPS Framework Agreement
  • Nisga'a Tribal Council
  • Canada/BC ACCP Framework Agreement
  • Old Massett Village Council
  • Ahousaht
  • Osoyoos Indian Reserve and Lower Similkameen
  • Blueberry River, Doig River and Halfway River
  • Red Bluff (Lhtako Dene Nation), Nazka, Alexandria, Kluskus (Lhoosk'uz Dene Government)
  • Burns Lake, Cheslatta, Lake Babine, Nee-Tahi-Buhn, Skin Tyee, Wet'suwet'en
  • Sechelt
  • Campbell River, Cape Mudge, Homlco
  • Sto':lo and Chehalis
  • Cowichan Tribes
  • Tl'azt'en and Nak'azdli
  • Fort Nelson & Prophet River
  • Tsartlip, Tseycum, Tsawout and Pauquachin
  • Gitxaala and Hartley Bay
  • Westbank
  • Huu-ay-aht, Hupacasath, Tseshaht and Uchuckles
  • Williams Lake & Soda Creek
  • Kamloops, Whispering Pines/Clinton Skeetchestn
 

 

 

3.2.6. Resources

  • Native Courtworker and Counselling Association of British Columbia

 

207 - 1999 Marine Drive

North Vancouver, BC  V7P 3J3

Phone:         604-985-5355

Toll Free:     1-877-811-1190

Fax:              604-985-8933

nccabc@nccabc.net

www.nccabc.ca

 

  • Indigenous Bar Association

#9, 9785 - 152B Street

Surrey, BC  V3R 9W2

Phone:         604-951-8807

Fax:              604-951-8806

www.indigenousbar.ca

 

  • Royal Canadian Mounted Police

 

RCMP Aboriginal Policing Services

Community, Contract and Aboriginal Policing Directorate

1200 Vanier Parkway

Ottawa, ON  K1A 0R2

Phone:         613-993-8443

E-mail: aborig@rcmp-ccaps.com

www.rcmp-grc.gc.ca

 

  • Stl'atl'imx Tribal Police Service (STPS)

 

Lillooet Department                         Mount Currie Department

879 MAIN ST - PO BOX 488            357 IR #10 ROAD, PO BOX 5

LILLOOET BC V0K 1V0                      MOUNT CURRIE BC V0N 2K0

Phone:         250-256-7784                  Phone:   604-894-6124

Fax:              250-256-4600                  Fax:        604-894-6185

chief.officer@stlatlimxpolice.ca

www.stlatlimxpolice.ca

 

  • Public Safety Canada

269 Laurier Avenue West

Ottawa, ON  K1A 0P8

Phone:         613-944-4875

Toll Free:     1-800-830-3118

www.publicsafety.gc.ca  

 

  • Criminal Justice and Legal Access Policy Division

Justice Services Branch

Ministry of Attorney General

PO Box 9222 Stn Prov Govt

Victoria, BC  V8W 9J1

E-mail: CriminalJusticeReform@gov.bc.ca

http://www.criminaljusticereform.gov.bc.ca/en/

 

  • Vancouver's Downtown Community Court

 

211 Gore Ave.

Vancouver, BC  V6A 0B6

Phone:         604-660-9722

Fax:              604-660-9714

E-mail: CommunityCourt@gov.bc.ca

http://www.criminaljusticereform.gov.bc.ca/en/justice_reform_projects/community_court/index.html

 

  • British Columbia Arbitration & Mediation Institute

 

203 - 1530 56th St.

Tsawwassen, BC  V4L 2A8

Phone:         604-736-6614

Toll Free:     1-877-332-2264

Fax:              604-736-6611

info@bcami.com

www.bcami.com

 

  • ADR Institute of Canada, Inc.

 

Suite 405-234 Eglinton Avenue East,

Toronto, ON  M4P 1K5

Phone:         416-487-4733

Toll Free:     1-877-475-4353

Fax:              416-487-4429

admin@adrcanada.ca

www.adrcanada.ca

 

  • Justice Institute of British Columbia (JIBC)

715 McBride Boulevard

New Westminster, BC  V3L 5T4

Phone:         604-525-5422

Toll Free:     1-888-865-7764

Fax:              604-528-5518

infodesk@jibc.ca

www.jibc.bc.ca

 

  • Simon Fraser University

 

Centre for Restorative Justice

School of Criminology

Simon Fraser University

Burnaby, BC  V5A 1S6

Phone:         604-291-4294

Email:  cfrj@sfu.ca

www.sfu.ca/crj

 

  • Indian and Northern Affairs

 

Backgrounder: Historical Context: Administration of Justice Agreements
http://www.ainc-inac.gc.ca/ai/mr/nr/j-a2011/23465bk-eng.asp

 

  • Department of Justice

 

Canadian Charter of Rights and Freedoms
http://laws.justice.gc.ca/eng/charter/page-1.html

 

  • The Aboriginal Justice Strategy

 

The Aboriginal Justice Directorate

Department of Justice

284 Wellington Street

Ottawa, ON  K1A 0H8

Toll Free:     1-866-442-4468

Fax:              613-957-4697

ajs-sja@justice.gc.ca  

http://www.justice.gc.ca/eng/pi/ajs-sja/ 

 

  • First Nations Justice Council (Working Group)

 

The First Nations Justice Action Plan was approved by resolution of the BCAFN, First Nations Summit and Union of British Columbia Indian Chiefs, and included the terms of reference for a Justice Council. An interim Justice Council (Working Group) was established in March 2009 to work on the establishment of the First Nations Justice Council, which will implement the First Nations Justice Plan.

 

  • Aboriginal Human Resource Council

 

708 - 2nd Avenue North

Saskatoon, SK  S7K 2E1

Phone:         306-956-5360

Toll Free:     1-866-711-5091

Fax:              306-956-5361
www.aboriginalhr.ca

 

  • Public Safety Canada

 

 

Overview of the First Nations Policing Policy
http://www.publicsafety.gc.ca/pol/le/fnpp_ov-eng.aspx

  • Ministry of Public Safety & Solicitor General
      • Province of British Columbia Provincial Police Service Agreement, (April 1, 1992), online: Ministry of Public Safety & Solicitor General 
        <http://www.pssg.gov.bc.ca/police_services/publications/docs/provincial-police-service-agreement.pdf>
      • Framework Agreement on First Nation Land Management, 1996, online: <http://www.fafnlm.com/documents/Text-of-the-Framework-Agreement-on-First-Nation-Land-Management.pdf>.

 

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