Executive summary

Justice Canada held discussions with representatives of four First Nations–Mohawks of Akwesasne, Tsuut’ina Nation, Tsawwassen First Nation and Whitecap Dakota Nation–to learn about their experiences with developing, administering, and enforcing their own laws and by-laws, as well as building their own justice systems. The discussions occurred from June to August 2023, and centred around First Nations’ justice systems, with a focus on what has worked well with the enforcement, prosecution and adjudication of their laws and by-laws, as well as lessons learned that might be of interest to other First Nations, justice system professionals (i.e., enforcement officers, police, prosecutors, legal counsel, adjudicators, etc.), and federal, provincial and territorial government officials working in this field.

This report provides a summary of what was shared during these discussions and reflects the views of the participating First Nations’ representatives. It is important to note that a full research study was not undertaken on First Nation justice systems; as a result, it is only possible to report on what was shared by the representatives of these four First Nations.

Community support and leadership were identified by the participating First Nations’ representatives as playing a key role in continuously advocating for the advancement of the First Nations’ justice systems, and as being essential to the Nations’ success in developing and administering their own justice systems. Community engagement and communication during law-making processes and for policing, prosecution and adjudication, were said to be critical for identifying issues and concerns the community would like to have addressed. The representatives of the First Nations who participated in the discussions described how their communities provide a large part of the funding for their justice systems through the revenue they have from residential, commercial, and industrial leases and activities on their land. Education is also prioritized by some of the First Nations to raise community awareness of their by-laws and laws, and to address enforcement issues.

Strong partnerships with municipal police services and the Royal Canadian Mounted Police (RCMP) were also noted by the First Nations’ representatives as a key factor for law enforcement within First Nations, particularly for the enforcement of First Nations’ laws and by-laws. Participating First Nations have also indicated that partnerships with provincial governments and courts are important for ensuring that First Nations’ laws and by-laws are enforced and prosecuted in provincial courts. The representatives of the four First Nations discussed different possible approaches to help increase the recognition of their laws and by-laws, including agreements with provincial CrownsFootnote 1 to prosecute their laws when they are comparable to provincial laws, the use of templates and standard terminology for laws to ensure consistency and familiarity, and community-specific training for law enforcement officers.

The lack of ongoing and stable funding for the administration of justice was identified as one of the most prominent challenges by the representatives of all four Nations. The representatives indicated a strong need to move away from program- and project-based funding models to more stable alternative funding models so that communities can fully develop, administer, and maintain their own justice systems over time. Further gaps in funding were identified by the participating First Nations’ representatives, including funding for hiring non-legally trained Indigenous prosecutors, legislative drafters and researchers, in addition to funding to train justices of the peace so that they are able to interpret First Nations’ laws, and funding for research to gather data and measure the impacts of justice programs and services.

When asked how the administration and/or enforcement of their laws and by-laws have impacted their communities, representatives from the four First Nations provided several examples, such as improved relationships between the community and the police service, the benefits of having some matters heard in their own court where they are able to protect their people’s rights and interests, as well as being able to support those who need to go through the provincial court process through an Indigenous Courtwork Program. Although the First Nations’ representatives spoke about some of the positive impacts they have observed as a result of administering their First Nations’ justice systems, they also highlighted the need and desire to document and measure these impacts. However, the First Nations’ representatives noted that this would require funding for research and data collection.

When asked what their justice systems could look like outside of a Western context, the representatives indicated the importance of the communities having control of their own justice systems with the autonomy to make decisions. They also highlighted the important role of Elders, culture, and language in the justice system.

Some of the key messages that were shared for other First Nations looking to do this work include the need to be patient and to not let barriers stop progress. It was also shared that it is helpful to not try to do everything at once, rather start small so it is possible to build the political, leadership and community supports that are needed to move forward. Also, when developing a justice system, the First Nations’ representatives highlighted that it is important to consider the growth and change of the justice system over time.

The representatives also highlighted the uniqueness of their communities. Given that all First Nations have distinct legal traditions, cultures, histories, and languages, the First Nations’ representatives explained from their perspective that federal, provincial and territorial governments should recognize that the needs of First Nation justice systems are distinct from one Nation to another. During discussions, the representatives of the four First Nations shared the need for space to develop and implement justice systems that their communities need and want. However, they also indicated that this takes time and resources. For the representatives, this means that federal, provincial and territorial governments’ approaches to funding the administration of justice in First Nations will have to change to provide long-term funding, rather than project-based funding models.

The representatives of the four First Nations who contributed to this report all reported significant successes in the establishment of their own justice systems, while navigating many challenges. They shared that First Nation justice systems are essential for the well-being and safety of their community members, and are key to their self-determination and self-governance.