An organization representing Ontario First Nations launched a constitutional challenge against the province and the government of Canada on Tuesday, alleging First Nations are being denied equal access to justice.
A statement of claim filed by the Chiefs of Ontario says that many provincial and federal laws — including those related to tenancy, land management and environmental protection — don’t apply on reserves.
While First Nations can make their own laws and bylaws to fill in those gaps, they aren’t effective without enforcement and prosecution, the document says.
The lawsuit alleges the governments do not provide enforcement or prosecution services in relation to First Nations laws, nor do they provide enough funding for First Nations to hire their own enforcement officers or prosecutors.
The lawsuit argues the lack of resources is harming First Nations people by impeding their ability to combat addiction, exclude dangerous people from communities, regulate tenancy and evictions, and prevent the dumping of waste, among other things.
“This leaves us with no access to justice and unsafe communities,” Ontario Regional Chief Glen Hare said in a news conference Tuesday morning.
“The rule of law that other Ontarians take for granted is an illusion for us. Failing to enforce and prosecute our laws is discriminatory to First Nations and puts our communities at serious risk.”
The organization is asking the court to order the governments to provide sufficient resources to enforce and prosecute First Nations laws, as well as other remedies.
None of the allegations have been tested in court and a statement of defence has not yet been filed.
Ontario Solicitor General Michael Kerzner was asked about the lawsuit and the Community Safety and Policing Act during question period but said he could not comment because the matter is before the court.
A spokesperson for the federal public safety minister did not immediately respond to a request for comment.
The lawsuit also alleges Ontario’s Community Safety and Policing Act, which took effect April 1, explicitly excludes the enforcement of First Nations bylaws from mandatory policing duties and is “ambiguous” on the enforcement of other First Nations laws.
Police services that are administered by First Nations aren’t guaranteed funding to enforce First Nations bylaws even if they come under the funding mechanisms for the act because support is only guaranteed for mandatory police functions, it says.
Ontario Provincial Police have “routinely” declined to enforce First Nations laws, the lawsuit further alleges.
The Chiefs of Ontario spent years urging the province to make enforcing First Nations laws mandatory for police but the organization’s concerns were ignored, Hare said.
Ontario New Democrat Sol Mamakwa, the critic for Indigenous and treaty relations, said he was disappointed by the solicitor general’s response in question period and would have liked the province to at least commit to meeting with the Chiefs of Ontario to discuss the issue.
Mamakwa also wanted an acknowledgment “that we need change on reserve,” he told reporters at the legislature. “We are part of Ontario but we are treated in such a different way, it’s so discriminatory.”
— with files from Liam Casey.