In Brief: New Tool for Enforcing Indigenous Laws
Lower Nicola Indian Band v. Barb Caldwell and Mike Pockrant (unreported)
What it’s about
The British Columbia Provincial Court held Lower Nicola Indian Band (LNIB) can prosecute individuals in court for violating its land code.
What happened
In 2016, LNIB approved its own land code in accordance with the Framework Agreement on First Nation Land Management in order to move away from the Indian Act and govern its reserve lands pursuant to its own laws.
LNIB’s land code establishes offences that may be prosecuted in accordance with summary conviction procedures under the Criminal Code and authorizes courts to enforce them.
In 2022-2023, LNIB declared individuals in violation of its land code for trespassing and took steps to enforce it. The individuals refused to leave and Crown prosecutors and police refused to assist. As a result, LNIB brought an application to privately prosecute them in provincial court.
The Court held LNIB can proceed with its prosecution on the basis that its land code created enforceable laws, and ordered a peace officer to serve documents on the accused forcing them to attend court to answer the charges.
Why it’s important
The Crown has a long track record of denying the existence and legitimacy of Indigenous Peoples’ laws, including by refusing to enforce them.
Over one hundred First Nations are revitalizing and implementing their laws on reserve pursuant to their land codes, but the Crown is not enforcing them when they are violated. This poses a serious barrier to First Nations meaningfully exercising jurisdiction over their lands because it creates a situation where Indigenous governments are passing laws Crown governments will not enforce. It also perpetuates the lie that Indigenous laws are somehow less legitimate than those enacted by other governments.
The Court’s decision in Lower Nicola Indian Band marks an advance in the building body of case law supporting First Nations’ ability to govern their reserve lands pursuant to their laws by confirming they can enforce their land code laws in court.
Michael Davidson is a summer student at First Peoples Law LLP.
First Peoples Law LLP is a law firm dedicated to defending and advancing the rights of Indigenous Peoples. We work exclusively with Indigenous Peoples to defend their inherent and constitutionally protected title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their current and future generations.
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