Enforcing Indigenous Laws: Building Capacity and Pathways Forward

By Casey Caines

While the recognition of Indigenous jurisdiction expands across Canada, the question of enforcement remains one of the most persistent barriers to Indigenous justice systems. As Justice Canada’s Exploring Indigenous Justice Systems in Canada and Around the World report found, there are significant barriers in enforcing Indigenous laws, or even bylaws under the Indian Act. Similarly, the Wahkohtowin Law and Governance Lodge, in partnership with the Indigenous Bar Association, found in their surveys for the Moving Forward: National Indigenous Justice Strategy Final Report that 83.6% of respondents identified the need for resources to administer and apply Indigenous laws, and 60% pointed to the need for enforcement by Canadian law enforcement. 

So what’s next?

Over the past few months, legal counsel Casey Caines has had the opportunity to attend both the Indigenous Bar Association Annual Conference as well as Doig River’s Walking the Path to Justice Conference to further consider challenges and opportunities around enforcement. As Dr. Cindy Blackstock shared in her session at Walking the Path, ‘Honouring our Children: Upholding the Rights of First Nations Children & Families’, "Jurisdiction is a tool not a destination.” 

Funding is and will always be critical - not only to develop justice services that reflect Indigenous laws, but also to train the people who will implement, administer, and enforce them. But there is more to implementation than funding. How can enforcement mechanisms provide reconciliation between Indigenous, provincial, and federal laws? How might these processes reflect enforcement not only for Indigenous peoples, but as an act of reconciliation in a multi-juridical country? 

The challenges of enforcement under current frameworks are evident. Megan Vis-Dunbar with the British Columbia Justice Institute (BCJI) offered insights at Walking the Path from their reports on enforcement challenges across British Columbia. These include an unwillingness from provincial and federal prosecutors to pursue land code bylaw enforcement and inconsistent or strained relationships with enforcement bodies such as the RCMP. As a result, communities—unable to afford their own enforcement officers—are forced to rely on alternate strategies such as denying services to encourage compliance. There are innovative ways that Nations are working to overcome these barriers, however. Some Nations, such as Westbank First Nation, have developed memoranda of understanding with the RCMP to ensure enforcement of laws on their lands, and others are seeking legislative changes to allow for dispute resolution referrals. 

Maybe most importantly, it is clear there is space for nations to examine what enforcement can mean for them. As Dr. Val Napoleon shared in her Walking the Path session ‘Living Laws: Indigenous Law Revitalization & Reconciliation’, “We need a bigger legal imaginary and humane lawfulness.”

Until next time, what does it mean to you to have a bigger legal imaginary? What do you imagine for your community’s law-making processes?