Creating a Functioning Legal System
What does it mean if you have the authority to make a law, but there is no reliable way to enforce it?
It's a reality faced by First Nations communities every day. First Nations governments make laws that address very practical matters in their communities: traffic, public order, trespass, intoxicants, land use, environmental protection and community safety.
That law-making authority is not new. The Indian Act has long provided for First Nations law-making authority. Long before that, law-making authority was written directly into the Treaties. Specific law-making powers for First Nations have also been provided for through land codes and self-government arrangements. And more recently, Indigenous law-making and governance also sit within Canada's commitments under the United Nations Declaration on the Rights of Indigenous Peoples Act.
But making the law is only the beginning. A functioning legal system requires a continuum:
Law → Enforcement → Prosecution → Adjudication
If one of those pieces is missing, the law may exist on paper but struggle to operate in practice. Take a very ordinary example:
A First Nation is experiencing increased drug activity in its community and enacts a bylaw to address nuisance properties being used for that activity. The First Nation knows the properties, the community and the risks involved. It makes a law to protect its citizens. But the question arises: can a law enforcement officer enforce that law in the same practical way that the officer enforces other laws?
That deceptively simple question is part of the reason Parliament is considering Bill S-223, An Act to amend the Royal Canadian Mounted Police Act. The Bill would expressly include First Nation laws within the statutory duties of RCMP peace officers.
It is a relatively short amendment, but it raises a much bigger question: we have long recognized the authority of First Nations governments to make laws, why are our justice institutions not yet equipped to give those laws practical effect?
That is where the next stage of the conversation needs to go.
Marrow Law can help.
We work with First Nations governments and Indigenous organizations on development, review, and implementation of bylaws, laws, policies and governance frameworks. From identifying the appropriate source of authority and drafting the law, through to implementation and other legal considerations.
We can also support First Nations in advocating on broader legal and policy issues affecting their governments and communities, including governance, housing, employment, economic development and the delivery of programs and services.
Because good governance isn't just about having authority on paper. It's about having the legal tools to put that authority into practice.
Written by Melinda Moch, General Counsel at Marrow Law.
