Justice Department

The Justice Department at Chiefs of Ontario is dedicated to supporting and advocating for First Nations justice systems and self-governance in Ontario. The Justice Sector’s responsibilities are to coordinate the technical and political positions of First Nations Leadership on justice issues affecting First Nations in Ontario. The current leading justice priorities include First Nations policing, revitalization of traditional justice, jurisdictional issues and treaty rights, consultation and accommodation, and the protection of heritage and burial sites.

Historically, First Nations have been victimized by the Canadian justice system. Such victimization has been perpetuated through systemic issues such as racial profiling by enforcement agencies, over-representation of First Nations peoples in correctional facilities, and lack of access to culturally competent support programs. The Justice Department was established to change this narrative by addressing the need for representation and advocacy on issues relating to justice for First Nations in Ontario.

On September 6th, 1995, an unarmed man named Anthony “Dudley” George was shot during a nighttime raid by the Ontario Provincial Police and died. Dudley and other First Nation men, women and children had been occupying their ancestral territory which had been appropriated by the federal government for military purposes. The occupied land was then transferred by the federal government to the provincial government and subsequently used as a provincial park. This transfer was made after the federal government had promised the return of the occupied land to the people of Kettle and Stony Point.

After the shooting death of his brother Dudley, Sam George began his quest for justice. For nearly ten years after his brother’s death, Sam George continued to advocate for justice for Dudley. Sam did not stop these tireless efforts, which ultimately resulted in a the Ipperwash Inquiry that examined the events that lead to Dudley’s death and recommended steps to ensure this never happens again.

Both Dudley and Sam will forever be remembered as protectors of our ancestral lands and seekers of justice for First Nation peoples, and as such, recommendations from the Ipperwash Inquiry have shaped and influenced the Justice Department’s initiatives at Chiefs of Ontario.

Several documents have been instrumental in shaping the contemporary state of justice for First Nations in Ontario. Some of these foundational documents include:

A non-exhaustive list of mandates currently guiding Justice initiatives includes:

  • Resolution 22/15 – Revitalization of Indigenous Legal Principles, Traditions, and Systems
  • Resolution 54/16 – Renewing Heritage and Burials Relationships
  • Resolution 42/17 – Establishing a Working Group on UNDRIP
  • Resolution 52/18 – Prosecution of Bylaws and Other First Nation Laws
  • Resolution 12/09 – Chiefs Committee on Justice
  • Resolution 11/20 – Ad Hoc Committee on Policing
  • Resolution 26/21 – Self-Governance & Justice Transformation for First Nations
  • Resolution 21/36 – Anti-Racism Work in Ontario
  • Resolution 21/37 – The Tripartite Collaborative Technical Table on the Enforcement and Prosecution of First Nations’ Laws
  • Resolution 21/38 – Participation of First Nations in Ontario in the Assembly of First Nations’ Co-Development of Federal Policing Legislation
  • Resolution 21/39 – Consent-Based Consultation and Accommodation Standards

Chiefs and Technicians Committee on Justice

The Chiefs and Technicians Committee on Justice (Justice Committee) supports First Nations in their work to advance justice and jurisdiction by providing technical and political advice to the Regional Chief, Chiefs of Ontario Leadership Council, Chiefs in Assembly, and Justice Sector at COO on all matters related to First Nations justice.

The overarching goal of the Justice Committee is to advocate for the creation and transformation of First Nation justice systems. The Committee aims to provide political support, technical expertise, research, and strategies.

The UNDRIP Act

The United Nations Declaration on the Rights of Indigenous Peoples Act

With the passing of Bill C-15, many First Nations technicians and Leadership have been wondering what the legislation means for them, their communities, their rights, and their interactions with the government. The following information is meant to assist First Nations technicians and Leadership to better understand C-15 and its implications, as well as a way to easily check for updates and events.

The United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples in 2007 after decades of advocacy, discussions, and negotiations, which were driven in part by leaders such as Chief Wilton Littlechild and grassroots advocates. At the time of its adoption, Canada was opposed to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and was one of only four States that voted against it. Canada later endorsed the Declaration without qualification and committed to its full and effective implementation in 2016. Since that time, British Columbia became the first jurisdiction to pass UNDRIP legislation.

UNDRIP was created to address major gaps in human rights legislation and affirm the minimum standards for recognition of the collective and individual rights of Indigenous peoples. These rights include, but are not limited to:

  • right to self-determination (articles 3, 4, and 5)
  • right to participate in decision making and to maintain institutions (articles 18, 19, 34, and 40)
  • right to set own priorities and strategies (article 23)
  • right to make decisions over traditional territory (articles 26 and 29)
  • right to free, prior, and informed consent (article 32)
  • right to culture (articles 8, 11, and 25)
  • right to maintain and protect Indigenous knowledge (article 31)
  • right to financial assistance (article 39)

As an international instrument, UNDRIP had legal effect in Canada before the passing of Bill C-15. Canadian courts already used the Declaration as an interpretive tool for understanding Canada’s domestic laws and Constitutional obligations. Additionally, some of the rights enshrined in UNDRIP were already entrenched in Canadian domestic law through other sources. For example, the right of self-determination of all peoples is recognized in Canada through two legally binding human rights treaties – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. Further, some aspects of UNDRIP are also customary law and are therefore already directly applicable in Canadian law.

For further information on UNDRIP:

In December 2020, the Government of Canada introduced Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, in the House of Commons. On June 21, 2021, Bill C-15 received Royal Assent and officially became law in Canada.

Bill C-15 is based on the work of Romeo Saganash, a Cree lawyer and former MP who introduced federal UNDRIP legislation in 2016, Bill C-262. Similar to C-15, Bill C-262 was introduced as a step toward implementing the minimum standards affirmed in UNDRIP. In 2018, a majority of the House of Commons expressed their support for the bill; however, in 2019, the bill died in the Senate.

With Bill C-15, the Government of Canada has expanded on Bill C-262. Bill C-15 affirms UNDRIP as a universal international human rights instrument with application in Canadian Law (section 4(a)) and contains three federal commitments that establish a process to make federal laws and policies consistent with UNDRIP:

  1. Bill C-15 requires the Government of Canada to, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with UNDRIP (section 5).
  2. Bill C-15 requires the Minister to, in consultation and cooperation with Indigenous peoples and with other federal ministers, prepare and implement an action plan to achieve the objectives of UNDRIP, address violence and discrimination, and include accountability measures to ensure implementation of UNDRIP (section 6).
  3. The Minister must, in consultation and cooperation with Indigenous peoples, prepare an annual report about their progress made on the first two commitments (section 7).

It is equally important to note what Bill C-15 does not do. Bill C-15 does not implement UNDRIP directly into Canadian law. Instead, it affirms that UNDRIP has application in Canadian law and creates a framework for implementation. It is also important to note that Bill C-15 and UNDRIP do not create new rights for First Nations, but instead affirm existing rights.

For further information on Bill C-15 and operationalizing UNDRIP:

The following information captures the parliamentary process through which Bill C-15 travelled to become law in Canada.

In June 2021, Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples was formally passed by the House of Commons and became law in Canada (“UNDRIP Act”).

The UNDRIP Act marks a shift from a consultation and accommodation framework to a Nation-to-Nation relationship. The Act was created for two purposes: (1) to “affirm” UNDRIP as a universal international human rights instrument which applies to Canadian law and (2) provide a framework for the Government of Canada to implement UNDRIP.

Through consultation and cooperation with First Nations, the UNDRIP Act requires the federal government to prepare and implement an action plan by June 21, 2023, as well as obliges Canada to make all federal laws consistent with UNDRIP and report back on progress each year.

The Department of Justice’s consultation and engagement process with First Nations was launched in December 2021. The consultation will focus on all three obligations set out in the Act: measures to ensure consistency of federal laws with the Declaration; develop an action plan; and annual reporting.

Federal engagement is an opportunity for First Nations to participate in dialogue and share their input on what is expected from consistent and compliant federal legislation with UNDRIP principles. These perspectives can include Treaty relationships, inherent rights, title, and jurisdiction, and the genocidal impacts of past Canadian policy on First Nations.

Policing and Community Safety

Current policing and community safety initiatives involve monitoring new legislation, policies, and proposed amendments to support First Nations in efforts to keep their communities safe.

Canada introduced the First Nations Policing Program (FNPP) in 1991. This discretionary program provides funding for First Nations policing services through tripartite agreements between First Nations Leadership and federal and provincial governments. In a federally commissioned report released in 2019 by the Council of Canadian Academies, it was detailed that many Indigenous communities lack policing services that meet their safety and security needs.

To respond to the lack of adequate First Nations policing services, Ontario passed the Community Safety and Policing Act (“CSPA”) in 2019. Once in force, the CSPA will replace the current Police Services Act. This legislation is unique in that it provides an opportunity for First Nations to opt-into provincial policing standards, accountability mechanisms, and financial mechanisms. As part of the work to bring the CSPA into force, the Ministry of the Solicitor General is engaging First Nations on regulations on a number of matters, including adequate and effective policing.

Federally, Canada committed to developing federal policing legislation with the AFN in 2020. This legislation would make First Nations policing an essential service. Resolution 21/38: Participation of First Nations in Ontario in the Assembly of First Nations’ Co-Development of Federal Policing Legislation mandates the Chiefs-in-Assembly to advocate for AFN’s co-development process with Canada to recognize First Nations rights-holders as equal partners in the legislative development process.

In Ontario, First Nations are policed by various models:

  • Self-Administered Police Services are police services governed and administer by one or more First Nations.
  • The Ontario First Nations Policing Agreement (“OFNPA”)is policing administered by the Ontario Provincial Police (“OPP”). However, First Nations have greater control over policing in comparison to direct OPP policing.
  • Stream 2 / Community Tripartite Agreement is a new policing model in Ontario whereby OPP officers police communities pursuant to an agreement with the First Nation. It provides less control over policing in comparison to the OFNPA, but more control than direct OPP policing.

Direct OPP Policing is a model by which a First Nation is directly policed by the nearest OPP detachment. This model receives no federal funding and is not under the FNPP. There are approximately 20 First Nations policed under this model.

First Nations have an inherent right of self-government and self-determination. While these rights can be realized through First Nations law and legal institutions, such efforts are often undermined by the lack of enforcement and prosecution of these laws.

In 2018, SCA Resolution 52-18 mandated the Chiefs of Ontario and Leadership Council to advocate for the reinstatement of prosecution and adjudication of First Nations laws.

For more information about issues around the lack of enforcement and prosecution of First Nations laws, refer to the report “Collaborative Approaches to Enforcement of Laws in Indigenous Communities” which was released by the House of Commons Standing Committee on Indigenous and Northern Affairs in June 2021.

In response to the current and longstanding gaps in services for the enforcement and prosecution of First Nations laws, the Tripartite Collaborative Technical Table on the Enforcement and Prosecution of First Nation Laws was established in May 2021. The first of its kind in Ontario, the Collaborative Table is a tripartite forum in which obstacles to the enforcement and prosecution of First Nations laws are to be identified, with a view to developing recommendations and identify pathways forward for implementation. The goal of the Table is to develop, and support the implementation of, concrete and lasting recommendations that will ensure First Nations laws can be consistently and reliably enforced and prosecuted.

The Table was publicly launched in the presence of former Ontario Regional Chief RoseAnne Archibald and former Grand Chief Alvin Fiddler, federal Ministers Lametti, Blair, and Miller, Ontario Attorney-General Downey, and Solicitor-General Jones. The Table is composed of First Nations, federal, and provincial representatives, as well as two Elders. The Collaborative Table is Co-Chaired by the Chiefs of Ontario, the Department of Justice Canada, and the Ontario Ministry of the Attorney General.

Chiefs of Ontario has a mandate to participate at this Table through Resolution 21/37: The Tripartite Collaborative Technical Table on the Enforcement and Prosecution of First Nations’ Laws. 

For more information about the Collaborative Table, refer to the Co-Chairs Report: Year One May 2021-May 2022.

First Nations leadership in Ontario have long recognized that First Nations women are the most at-risk group in Canada for issues related to violence. In 2010 through Resolution 10/31: Government of Canada to Re-Establish its Support for Sisters in Spirit, the Chiefs in Assembly made eliminating violence against women a top priority.

In 2011 the Leadership Council passed Motion 11/22 to establish a technical advisory group, the First Nations Women’s Caucus. Its mandate is to develop a community-based strategy for ending violence against First Nations women and girls. The First Nations Women’s Caucus advocated for a National Inquiry into Missing and Murdered Indigenous Women and Girls, which began in 2016.

Resolution 29/19 calls on the federal and provincial governments to provide implementation plans to monitor progress on the 231 Calls for Justice from the Final Report of the National Inquiry into MMIWG. A comprehensive National Action Plan was announced on June 3, 2021. The First Nations Women’s Caucus worked with the Assembly of First Nations Women’s Council to conduct engagement sessions with First Nations MMIWG families and survivors in Ontario. A summary report was produced in July 2021. Further discussions will be taking place regarding options to support First Nations communities in ending violence against women, girls and Two-Spirit/gender diverse people.

The First Nations Women’s Caucus is now supported through the newly established Department of Women’s initiatives.

Land Rights
& Interests

Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples states that federal and provincial governments “shall consult and cooperate in good faith with the Indigenous Peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

Resolution 06/45 mandates the Chiefs of Ontario to undertake the consultation and accommodation work that is grounded in Resolution 05/45, where the Chiefs-in-Assembly affirmed the importance of the development of draft protocols for consultation and accommodation. Resolution 06/44 and Resolution 05/45 ground general work such as lobbying and offering support to First Nations.

Most currently, Resolution 21/39 mandates Chiefs of Ontario and the Justice Committee to develop updated potential solutions to the substandard consultation and accommodation practices of Canada and Ontario, which respect First Nations laws, Treaties, and require First Nations consent.

UNDRIP affirms the recognition and protection of Indigenous land and resource rights. Although Indigenous peoples never surrendered these rights throughout the treaty process, the Crown has consistently neglected to offer First Nations a fair resource revenue sharing agreement. Together with the Chiefs in Assembly, the Justice Department urges both settler governments to uphold the words of UNDRIP and negotiate equitable resource sharing agreements with First Nations in Ontario.

Heritage and Burials

Heritage and burials work is guided by Resolution 54/16, which calls for a renewal of relationships and energy in this area. Chiefs of Ontario supports the Kee:Way Committee, the First Nations Heritage and Burial Sites Working Group and Advisory Committee, which is responsible to and receives direction from First Nations Leadership to advise, guide, and support repatriations and related heritage and burials priorities as identified through Resolutions.

The Kee:Way Committee is presently working on the repatriation of sacred items and ancestors from various holding facilities from the Ministry of Heritage, Sport, Tourism, and Culture Industries, while also working on strengthening processes and respecting community approaches.

Justice Projects

The Sexual Harassment in the Workplace project aligns with Resolution 19/18 to support the development of a transformative framework to deal with the issue of sexual exploitation and sexual violence in First Nations communities.

Sexual harassment in the workplace is one facet of larger issues around sexual trauma, sexual exploitation, and sexual violence. The project can play a role in addressing this in the community through its efforts to better understand what sexual harassment and violence looks like in the employment context and how we can prevent and address it. The project will provide resources, assist in capacity building, and increasing dialogue on sexual harassment and sexual violence, specifically in the workplace.

One initiative of this Project is the Workplace Harassment Toolkit, a repository of information to help guide First Nations in their understandings of how to create and maintain healthy relationships in the workplace. The Chiefs of Ontario has created this toolkit to provide information relevant to anyone involved in the workplace and is a First Nations-focused, holistic response to sexual violence and abuse, acknowledging that workplaces are integral to our daily lives and supporting our communities.

Furthermore, a website has been developed as a part of this project. This website was developed to be a valuable public legal education and information resource to compliment the toolkit. The website provides resources and information for employers and employees to both prevent and address workplace sexual harassment, discrimination, and violence. It includes illustrations, Q+As, checklists, templates, and further downloadable resources on preventing and addressing sexual harassment, discrimination, and violence in the workplace.

You can access the website www.preventingshwp.com.

Anti-racism work at Chiefs of Ontario is rooted in several resolutions, including Resolution 21/36 Anti-Racism Work in Ontario, Resolution 94/22 Racism in Thunder Bay, Resolution 01/18 Legislation to Reduce Racism, Resolution 18/16 Implementation of Youth Inquest Recommendations, and Resolution 11/17 Inquest on Deaths of Indigenous Youth in Care.

At Chiefs of Ontario, we continue to advance and monitor anti-racism issues by:

  • Providing capacity to advance anti-racism issues and initiatives;
  • Identifying opportunities for anti-racism work and/or facilitating the creation of new opportunities; and
  • Working with other sectors to advocate for and monitor the implementation of the TRC Calls to Action, MMIWG Calls to Justice, Ipperwash Inquiry recommendations, and recommendations from countless other inquiries, reports and rulings.

The First Nations Law Making Project will develop resources and legal materials to support First Nations as they exercise their inherent jurisdiction and engage in the legislative building process.

As the first iteration of the Project, Chiefs of Ontario has been working to develop a toolkit to support First Nations who want to create their own First Nation Child and Family Well-Being laws. This is in response to An Act respecting First nations, Inuit and Métis children, youth and families, better known as Bill C-92, which came into force on January 1, 2020.

Contact the Justice Sector

Jackie Lombardi
A/Director of Justice
Jackie.Lombardi@coo.org
Toronto Office: (416) 597-1266
Toll-Free: 1-877-517-6527

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