A significant problem facing many Indigenous Peoples is the lack of an effective enforcement mechanism for Indigenous laws, which can render them ineffectual. On October 15, 2020, the Ontario Bar Association’s Aboriginal Law Section hosted a program on “Critical Issues in the Enforcement of Indigenous Laws” chaired by R. Martin Bayer (Weaver, Simmons LLP) and Naomi Sayers (Barrister & Solicitor). This program explored the various challenges that prevent the enforceability of Indigenous laws as well as opportunities to overcome these hurdles. The three panels each focused on a different law-making mechanism: 1) Band by-laws under the Indian Act; 2) laws created pursuant to recognition agreements; and 3) laws enacted under inherent jurisdiction. The panel was made up of a mix of senior counsel and chiefs to bring much valued discussion.
Band By-Laws under the Indian Act
Panel: Chief Dave Mowat (Alderville First Nation) and Kaitlin Ritchie (Legal Counsel, Indigenous Justice Division at Ontario Ministry of the Attorney General)
As background, there are certain sections of the Indian Act that give Chief and Council power to enact Band by-laws to regulate their activities (ss 81, 83, 85.1). The issue with enforceability for these by-laws is that they exist in a federal-provincial jurisdictional dilemma, or are subject to “jurisdictional neglect”, as it is often described. The Indian Act is federal, but the Indian Act indicates that by-laws enacted pursuant to it are enforceable in provincial courts (s 106), and generally, the administration of justice is a provincial responsibility. Where there were once s 107 Courts where Justices of the Peace were appointed to deal with these matters, this practice was discontinued in the 1980s. This first panel explored the challenges of enforcing Band by-laws.
After providing a comprehensive background on Indian Act by-laws, Kaitlin Ritchie discussed the difficulties of the enforcement of these by-laws due to the troublesome jurisdictional grey-area. The enforcement issue has been ongoing for decades and has become a significant concern for many communities. Given the context of COVID-19, the challenges and uncertainty with communities enforcing by-laws they deem necessary at this time are even more pressing.
Next, Chief Dave Mowat explored the difficulty Indigenous communities face in enforcing regulatory by-laws regarding cannabis. Dealing with the moving parts of enacting and enforcing cannabis by-laws has become even more challenging due to government shut-downs relating to COVID-19. There are also challenges in having local police and/or the OPP enforce Band by-laws. Chief Mowat discussed some instances where OPP are unwilling to lay charges for offences they know will not be prosecuted. This perspective seeks to reinforce perceptions of invalidity of these by-laws amongst police services.