MUSKODAY FIRST NATION, Sask. — First Nations chiefs say a new law passed in New Brunswick last spring will have a huge impact on their communities.
But the legislation that gives oomph to their bylaws had an unlikely inspiration, unmentioned when it was introduced in the legislature in May.
It was conceived in a small community 2,900 kilometres away from Fredericton.
Leaders in Muskoday First Nation, just east of Prince Albert, Sask., spent years working with their provincial government to make their own laws enforceable by police.
Just like in New Brunswick, the RCMP in Saskatchewan were at one time reluctant to enforce First Nations bylaws, arguing they wouldn’t pass the scrutiny of the courts.
But then a change came in 2023 when the legislature in Regina introduced amendments that made First Nation rules more enforceable.
Jennifer Heimbecker, a councillor at Muskoday, told Brunswick News a good example of the law's new powers is the enforcement of their eviction notices.
The community of about 650 Cree and Saulteaux has a housing shortage, with many people on the waitlist. If someone purposely damages the social housing that’s been offered, the First Nation council wants to evict the tenant and give it to someone more deserving.
“There was one family, we gave them the boot because the home was so badly damaged,” Heimbecker said in an interview. “It was a brand new home, I think maybe a two-year build, and they just destroyed it. The walls were busted open. Doors were broken. There were some bedrooms that didn’t have windows anymore, that kind of thing.”
The councillor warned that even with the new enforcement powers, evictions were easier said than done. When the eviction went to court, the presiding judge put the First Nation’s officials through their paces.
“The judge even asked, ‘have you given them an opportunity to make repairs?’ So, we’re like, ‘oh, okay, that’s another step we can add, they can make some repairs, and we can do an inspection.’ We’ve kind of tightened up on a few things now.”
She said from start to finish, the eviction took about six months, a procedure that shouldn't take as long in future cases because the First Nation has now tested the law in court.
“There were lots of errors, but it was trial and error, and it was like, ‘hey, this is what the judges want to see when we’re doing this,’ and so we kind of have a clearer path of how to do it, and how to be successful.”
Following the changes made by Scott Moe’s provincial government to the Summary Offences Procedures Act in May 2023, police officers and peacekeepers in Saskatchewan can now use laws passed by First Nation councils to make arrests and deliver fines, a harbinger of what’s to come in New Brunswick.
The Holt Liberal government's version of the law passed in June.
New Brunswick’s Attorney General and Justice Minister Rob McKee, who attended high school in Saskatchewan, introduced the bill in May to put First Nations bylaws into the Provincial Offences Procedure Act. The Liberal majority ensured it reached royal assent a month later.
The change is supposed to give First Nation bylaws teeth, a long-held demand of local chiefs.
The most controversial of these bylaws would be ones that ban people from those Indigenous communities, such as suspected drug dealers or other unsavory characters.
But two fundamental freedoms in the Canadian constitution under the Charter of Rights and Freedoms – the top law of the land – include association and movement, seemingly contradicting such bans.
Still, Chief Allan Polchies welcomed the bill’s introduction.
“We have a number of folks that come through our communities that, of course, we don’t want there, folks that are being negligent to our people,” the Wolastoqey leader of Sitansisk, or St. Mary’s First Nation, in Fredericton told reporters in May.
“So, we have the power to identify undesirables. And when we identify them in our communities, we expect, of course, the law enforcement, who we pay, will remove those folks that we are asking to be taken out of our community.”
The bylaws will apply to anyone – Indigenous or non-Indigenous – who pass through, live or work in a First Nation.
The legislation has caused ripples in Canadian legal circles, says Nicole O’Byrne, a University of New Brunswick law professor.
She said the law essentially places First Nations on the same level as municipalities in terms of bylaw creation and enforcement.
“The legislation signifies a marked departure because it recognizes that First Nations themselves can pass laws either under the Indian Act or the First Nation Land Management Act and then rely on policing services to enforce these laws,” she explained in an email to Brunswick News.
“For the first time in New Brunswick, provincial policing agencies have the clear legislative authority to enforce laws created by First Nations communities.”
The law basically clarifies that First Nations laws passed under the two federal acts can be enforced by peace officers in the province.
When the Indian Act was passed 150 years ago, Ottawa had the jurisdictional authority for the legislation under the old Constitution Act of 1867, providing it the power to make laws for “Indians, and lands reserved for Indians,” as the old, outdated language set out.
“First Nations people were subject to various provisions of the Indian Act and played no role in the creation or implementation of laws that directly affected their lives and well-being,” said O’Byrne, who teaches courses on Indigenous-state relations and Canadian legal history.
One of her research colleagues, Lyle Skinner, a constitutional lawyer specializing in parliamentary law, pointed out to Brunswick News that the new legislation was heavily inspired by the Saskatchewan example.
He said he was intrigued by some of the provisions for violations under the Indian Act, which include imposing a maximum fine of $1,000. But the law also allows a judge to impose jail time on people who violate it.
Heimbecker, however, insisted the goal wasn’t to put more people in the slammer. She said her First Nation is more interested in ticketing people who violate, say, her community’s animal control bylaw.
The First Nation is putting the final touches on how fines will work.
“It’ll make a huge difference for us because people are going to listen to it,” she said. “They will abide by it because of the risk of getting a fine.”
Skinner, meanwhile, said the bylaw powers shouldn’t be mistaken for First Nation self-government because they work in concert with federal powers.
“In the sense of being able to have more control over the enforcement of your own laws, it does seem like self-governance. But is it self-governance in the sense of what it might look like outside of the Indian Act model? No, because again, it’s still falling under the Indian Act or the First Nation Land Management Act.
“Under this scheme, yes, it’s effectively devolving a lot of power and authority downward, but it’s a separate consideration of an Aboriginal or treaty right. It’s really the powers that are conferred under the two federal statutes.”
A peacekeeper or special constable in a First Nation enforcing the new laws would have power more akin to a municipal bylaw officer’s, he added.
