Participating First Nations and their justice systems

The following section provides information shared by the representatives from the four First Nations about their justice systems, with a focus on their law-making, enforcement, adjudication, and resolution mechanisms. Additional information from websites is provided for context and has been referenced.

Mohawks of Akwesasne

The Mohawks of Akwesasne are part of the Kahniakehaka (Mohawk Nation) that is situated along the St. Lawrence River across three borders – the state of New York (United States of America) and two Canadian provinces, Quebec and Ontario. According to the Mohawk Council of Akwesasne, they have about 12,000 community members of whom, 1,800 members live outside the community “due to housing, economic and land constraints” (Mohawk Council of Akwesasne n.d.). The Akwesasne justice system deals with Canadian governments, while St. Regis, on the other side of the land, has their own justice system that deals with American governments.

Akwesasne representatives spoke about their robust justice system that was initially established in the 1960s to address practical administrative issues such as garbage collection and management, and door-to-door solicitation. They report that the community now develops, enforces and adjudicates its own laws, and Akwesasne’s representatives explained how they see their justice system operating in ways that are comparable to those of the provincial and federal governments.

Law-making

Akwesasne’s Justice Department has a mandate to create and enforce their Nation’s laws. The Nation has a diverse system of laws in place that has been around since 1973, when the first Akwesasne by-law came into effect. There are 34 Akwesasne laws in the Akwesasne Law Registry, such as the Election Law and Couples Property Law.

Legislative development in Akwesasne is done in five phases, which include the engagement and approval of Chief, Council, and the community. The Akwesasne Justice Department is also in the process of developing a template for laws that provides standardized definitions and structures to make the legislative development process more consistent.

Enforcement of laws and by-laws

The Akwesasne Mohawk Police Service can charge individuals with criminal offences and enforce Akwesasne laws. In addition, the First Nation has enforcement and compliance officers, who are responsible for ticketing, for example, traffic infractions. They also address other areas such as regulations and laws for leases, mortgages, and tobacco.

Adjudication and resolution mechanisms

For more than 40 years, the Mohawks of Akwesasne have had their own court to adjudicate Akwesasne laws and by-laws. However, the representatives indicated that community members must go to provincial court for criminal matters. Akwesasne’s Community Justice Program provides services and guides community members who must go to provincial courts. Akwesasne’s representatives indicated that this is a very important service to the community; the workers provide excellent support as these processes are overwhelming and challenging.

When applicable, the Nation uses restorative justice and diversion for minor Criminal Code offences. They expressed that they would like to continue to expand the use of restorative justice for other areas, such as community laws and traffic offences.

The Mohawk Council of Akwesasne developed a “Good Standing in Community” policy to incentivise community members to pay their traffic fines. For example, community members who apply for services in the community, such as childcare, school lunch subsidies, and loans for building a home could face repercussions if they have outstanding fines. Akwesasne’s representatives felt that this internal policy has proven to be successful as community members are paying their fines.

Tsawwassen First Nation

Tsawwassen First Nation has been a Modern Treaty Nation since April 2009.Footnote 11 It is an urban Nation situated to the south of Vancouver and directly above the United States border, adjacent to the state of Washington. Tsawwassen First Nation has a population of slightly more than 500 members. Approximately half of the members live on Tsawwassen Lands, while thousands of non-members also live, work and shop on Tsawwassen Lands.

There is substantial residential, commercial, and industrial development on the Nation’s land. Real estate is the main economic driver as there is a high number of residential lease holders, due to the lack of housing in Vancouver, as well as a high number of non-residential lease holders.

Law-making

Tsawwassen First Nation has their own legislature which has enacted 25 to 30 laws with community input. The representative indicated that the Nation has adopted a concurrent laws model whereby most provincial and federal laws of general application apply on Tsawwassen Lands (for example, employment laws, landlord and tenant laws, criminal laws and many others). The representative explained that this ensures that the applicable laws are already familiar to people who are not members of the community, such as residential, commercial, and industrial investors and residential lease holders living on Tsawwassen Lands. The representative indicated that these laws are enforced in the same way as they are enforced elsewhere in British Columbia.

Enforcement of laws and by-laws

Under Tsawwassen First Nation’s Laws Enforcement Act, all police officers who belong to a force authorized under provincial law are considered enforcement officers with the authority to enforce Tsawwassen laws or regulations. The Nation has an agreement with the Delta Police Department, a local municipal police service, which provides policing services to the community. Tsawwassen First Nation provides training to the dedicated liaison team in Delta’s police service, which has a Tsawwassen First Nation community liaison officer as well as a team responsible for handling criminal issues in the community. When community members call the station for service, they can speak with someone who knows the community. The Delta fire department also has an agreement to enforce certain aspects of Tsawwassen First Nation laws.

For non-criminal matters, Tsawwassen First Nation has their own enforcement officers, who are also designated as peace officers in Tsawwassen First Nation’s regulations for the purposes of the Offence Act (British Columbia). Most of the enforcement officers are former police officers, and they are required to have and maintain certification in use of weapons, operation of emergency vehicles and crisis intervention. Tsawwassen First Nation also employs resource management officers to enforce laws on fishing and other gathering activities. They have significant relevant training and experience, although they do not carry weapons. None of Tsawwassen First Nation’s enforcement officers or resource management officers are currently Tsawwassen First Nation members.

Adjudication and resolution mechanisms

Although Tsawwassen First Nation’s Treaty provides authority for Tsawwassen laws to be prosecuted through the provincial court system and gives Tsawwassen First Nation the power to hire their own prosecutor, this power is not currently being used (see the What we learned section for further details).

Some cultural aspects of Tsawwassen First Nation have been incorporated into sentencing proceedings in provincial courts. For example, a few years ago, a community member was charged with a Fisheries Act offence and entered a guilty plea. The Nation worked with the provincial Crown to set up a Restorative Justice Circle with Elders, community members from Tsawwassen First Nation and an Elder from a nearby Nation. This Circle produced recommendations for sentencing, and the provincial Crown agreed to make a joint submission to the judge.

Tsuut’ina Nation

Tsuut’ina Nation is a Treaty 7 Nation,Footnote 12 with a population of about 2,300 registered community members living on their land. The Nation is situated in southern Alberta, with Calgary to the east. Tsuut’ina Nation’s economy is mostly based on residential and commercial development. There is a casino, hotel and event centre that bring many Calgarians and tourists onto their land, as do popular retailers, and real estate development.

Law-making

Representatives from the Nation reported that Tsuut’ina Nation has a robust legislative process. However, by-laws must be created under the Indian Act, which has resulted in challenges (please see the What we learned section for further details).

Enforcement of laws and by-laws

The Nation has their own police service, the Tsuut’ina Nation Police Service, to enforce the Nation’s legislation, as well as federal criminal law and provincial law. The Nation’s representatives reported that the RCMP only enforces criminal law in Tsuut’ina Nation if requested by the Nation’s police. The Nation funds 16 police officers, and another 15 officers are funded by the provincial and federal governments through the First Nations and Inuit Policing Program.

The Tsuut’ina Nation Police Service has mutually beneficial partnerships with the Calgary Police Service and the RCMP, as all three police services provide each other with supports. For example, these partnerships provide the Tsuut’ina Nation police access to additional police equipment, such as a helicopter, which they would not have access to otherwise.

Adjudication and resolution mechanisms

Tsuut’ina Nation has a Peacemaking CourtFootnote 13 with an Indigenous judge, an Indigenous prosecutor, Indigenous court workers, and the accused can be represented by anyone they choose. There are very few areas of law that cannot go to the Peacemaking Court; however, serious criminal offences such as homicide and sexual assault, for example, must be prosecuted in provincial court. The Tsuut’ina Peacemaking Court can be accessed by community members at any point in the justice process (i.e., pre-charge, post-charge or through a provincial judge).

Trained community members and Elders also support the Nation’s justice system through a healing circle. This is a restorative justice model which integrates the community’s voice.

Whitecap Dakota Nation / Wapaha Ska Dakota Oyate

Whitecap Dakota Nation, which became a self-governing Nation on September 1, 2023,Footnote 14 is located to the south of Saskatoon. There are about 600 members, and many live in the community (Whitecap Dakota Nation n.d.). The Nation also has a casino, resort and golf course which draws over one million tourists a year into the community.

Law-making

The Nation has been enacting laws under their Land Code and the Indian Act. However, with the Self-Government Agreement now in place, the Nation’s representatives reported they would like to generate the capacity for community justice procedures, including the creation of their own laws that could be enforced through either their own or existing legal systems, including the provincial courts.

Enforcement of laws and by-laws

The representatives from Whitecap Dakota Nation indicated that the casino, resort and golf course create challenges for the Nation as the high volume of visitors introduces safety and peacekeeping issues. The Nation’s leadership have been emphasizing the need for the Self-Government Agreement to address crime and justice issues. As well, the Nation continues to seek outside investment for the community and appreciates the need for a robust justice system to support public safety and economic stability.

In May 2021, Whitecap Dakota Nation developed a two-year pilot, the Community Safety Officer (CSO) program, to address community safety issues through education and de-escalation.Footnote 15 The CSO program currently has five CSOs authorized under provincial policing legislation; however, the RCMP is still responsible for addressing criminal matters in the Nation. Although the aim of the CSO program is to focus on education for diffusing situations, if someone is disturbing the peace, the First Nation would eventually like to be able to issue tickets, as well as prosecute the First Nation’s laws. Currently, the Nation’s laws are being enforced and adjudicated through provincial traffic court with the participation of CSOs.

Adjudication and resolution mechanisms

The provincial courts hear summary offences under the Nation’s Land Code as well as criminal offences. The Nation has been working with the Saskatchewan Ministry of Justice and Attorney General to have provincial courts recognize the First Nation’s laws as it transitions to a self-governing model. The Nation’s representatives reported that this has been facilitated through Saskatchewan’s recent amendments to its Summary Offences Procedures Act.