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The federal government is arguing in court that it is not obligated to provide funding for policing on First Nations, even though the governing Liberals have publicly pledged for years to pass legislation declaring law enforcement in Indigenous communities to be an essential service.

The federal government currently funds First Nations policing through negotiated fixed-term grants. Government officials say the Liberals have expanded that funding and will continue to expand it.

But, in a March 31 legal brief filed at the Federal Court of Appeal, lawyers acting for the Attorney-General of Canada say that Ottawa’s funding for policing on First Nations exists at the government’s discretion. They are seeking to quash a Canadian Human Rights Tribunal decision from last year, which declared that a First Nations community in Quebec was entitled to greater levels of federal funding for its police force, to ensure a level of security comparable to what non-Indigenous communities receive.

The rights ruling is a precedent that has already inspired follow-up litigation, and it could have profound effects on how First Nations police forces are funded and administered in the future.

In its appellate brief, the government argues the funding is a contribution program that it chooses to participate in, and that First Nations police forces are largely creatures of provincial governments. It claims that the tribunal’s ruling sets a precedent that could burden Ottawa with obligations that are impossible for it to fulfill.

The government says in its appeal that the CHRT has effectively given itself new oversight and policy making powers. It argues the rights ruling could have a chilling effect, by imposing new requirements on all manner of federal programs that aim to tackle social inequality.

First Nations police forces sue Ottawa over stalled funding talks

Jurisdictional issues surrounding First Nations have long complicated the question of who is responsible for funding law enforcement on reserves.

In 2019, the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls pressed the government to pass legislation that would “immediately and dramatically transform Indigenous policing.” Prime Minister Justin Trudeau wrote a mandate letter months later directing his cabinet ministers to develop that law. But the bill has not been drafted.

Many of Canada’s First Nations are underpoliced and affected by high rates of crime severity and victimization. Last year, when a knife-wielding man was killing residents of the James Smith Cree Nation, Saskatchewan RCMP officers struggled to respond to the massacre from a detachment more than 40 kilometres away.

During the 1990s, the federal government created the First Nations and Inuit Policing Program (FNIPP), a cost-sharing program intended to put police on reserves. The program’s 52-48 federal-provincial funding split kickstarted the creation of Indigenous-run police forces. The program can also be used to fund RCMP presence on reserves.

More than 30 such self-administered police forces are operating in Canada today under the FNIPP’s umbrella. But they are clustered in Central Canada. The Globe and Mail has reported that the program has bypassed many First Nations, and that its continuing rollout is beset by funding shortages and accountability issues.

First Nations police launch human-rights complaint against Ottawa over funding

Police chiefs for the First Nations forces are meeting in Quebec City this week. When The Globe relayed the essence of the appellate brief to them, they said the federal arguments are regrettable, but not surprising.

For years, they said, officials have been running the FNIPP as optional granting program controlled by the federal government. “They say it’s discretionary funding. What they are actually saying is that our First Nations communities in Canada deserve discretionary safety and security,” police Chief Jerel Swamp, of the Rama Police Service, said in an interview.

The Canadian Human Rights Tribunal ruling that kicked off the government’s appeal found that the FNIPP had underfunded the Mashteuiatsh Police Service, in Pekuakamiulnuatsh First Nation in Quebec. The tribunal deemed this to be discriminatory.

Since then, First Nations police forces across Canada have signalled that they will try to leverage that ruling into better deals for their own communities. In February, the Federal Court of Canada upheld the tribunal findings, saying the government’s arguments for judicial review were not persuasive.

“The Tribunal rejects the argument that the [FNIPP] is only a funding or contribution program and that the Canadian government does not have an obligation to fully fund Aboriginal policing,” Federal Court Justice Jocelyne Gagné wrote.

She said she viewed the tribunal’s logic as “coherent and rational.”

The FNIPP provides funding on fixed-term contracts. When those contracts end, Indigenous police services have to renegotiate funding with Ottawa, and they can face financial uncertainty until they do.

One such impasse arose this spring among three First Nations police forces in Ontario. They have been without government funding since April 1.

“Our communities are going to be put in a safety and security crisis,” Chief Kai Liu of the Treaty Three Police Service, one of the three affected forces, said in an interview this week. He said that unless his Northern Ontario service can negotiate a financial lifeline by June it will run out of money to pay its officers.

Public Safety Canada is continuing to negotiate with the three police forces, according to departmental spokesperson Tim Warmington.

“The Government of Canada is committed to working in collaboration with First Nation police services to ensure funding continues to flow,” he said in an e-mail to The Globe.

He noted that the federal government has announced hundreds of millions of dollars in extra funding for First Nations policing in recent years.

“The Government of Canada is committed to bringing forward legislation that recognizes police services as essential services,” he added.

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