Following a favorable judgment by the Quebec Court of Appeal, Indigenous communities are calling on governments to “put an end to the chronic underfunding” of Indigenous police forces across the country.
“We will hope that the governments take note of this decision and that they put an end to their legal battle, supported Gilbert Dominique, the chief of the First Nation of Pekuakamiulnuatsh, based in Mashteuiatsh, near Roberval. We would like to see a change in the attitude of the governments during the negotiations and that they make available to the First Nations a financial envelope that will allow us, as provided for in the First Nations Police Policy, to fully assume our powers and to have a police force that truly meets our needs. »
According to him, the judgment rendered last Friday “concretely demonstrates that there was, and still is, systemic racism, whether at the federal level or in Quebec, with regard to the First Nations. »
A question of “honor”
The judgment, rendered last Friday by the Quebec Court of Appeal, indicates that the governments of Quebec and Ottawa have “not acted honourably” and have “breached their obligation” by refusing to fund the police force of Mashteuiatsh up to his needs.
“By refusing to fund the appellant’s police force [Mashteuiatsh] so as to allow the provision of services of the same quality as that offered to non-Aboriginal people, I am of the opinion that the respondents [Québec, Ottawa] violated their obligation to act honourably,” wrote Judge Jean Bouchard in a 48-page decision.
They condemn Quebec and Ottawa to pay a total of 1.6 million to the community of Mashteuiatsh to absorb the accumulated deficits of the police force between 2013 and 2017.
The obligation to provide “equal” services
The three judges recall that the First Nations Policing Policy, adopted in the early 1990s, “states in full that it constitutes a means of implementing the inherent right of Aboriginal peoples to self-government in such a way that they can benefit from effective professional police services, adapted to their culture”.
According to this agreement, the federal government undertakes to pay 52% of the costs for the establishment and financing of Aboriginal police forces, compared to 48% for Quebec. This sharing must be done according to the “limited sums” available to governments. First Nations must pay the deficit, if any.
Except that the First Nations Policing Policy specifies that the services funded must be “equal to the policing services that would benefit surrounding communities characterized by similar conditions”.
In the case of Mashteuiatsh, the court ruled that the amounts invested by Quebec and Ottawa did not meet this condition.
“The appellant cannot be criticized for wanting to offer members of his community the minimum services offered to other citizens of Quebec. However, the shortcomings and shortcomings of the appellant’s police service are numerous,” the judges ruled.
Well-documented underfunding
The three judges reconsidered the decision of their colleague at first instance, who should, according to them, have taken note of the various reports – including that of the vsCommission Viens — which report on the historical distrust of Aboriginal communities towards the police forces of Quebec and the chronic underfunding of their police forces.
“There is no doubt that this is a fundamental fact of this case which explains the need, even the urgency for the First Nations to set up and manage their own police forces”, write the judges.
They also criticize the trial judge for having focused his analysis on the law of contracts rather than on the constitutional obligations of the two orders of government. Concretely, the latter therefore judged that the parties had complied with the terms of the tripartite agreement, but without taking into consideration that this agreement did not respect the spirit of the Policy.
“The judge could not therefore rely solely on the strict wording of the tripartite agreements to examine whether the respondents were in default of performing their obligations. It also had to take into account the government policy of these agreements, the general context surrounding the provision of police services on reserves in Quebec and elsewhere in Canada, as well as the damning findings made over many years by the various commissions of inquiry that have looked into this subject”, decide the judges of the Court of Appeal.
“Insensitivity” of governments
According to the judges, the governments of Quebec and Canada “locked the appellant into a financially unsustainable contractual relationship”. Indeed, they indicate that the Council of elected officials of Mashteuiatsh had no choice but to accept sums that they knew were insufficient, otherwise they would lose their own police force. Quebec had defended itself by recalling that the indigenous communities could choose instead to call on the services of the security of Quebec.
“The argument of the respondents is surprising, write the judges. To invoke the free services offered by the Sûreté du Québec to demonstrate their good faith demonstrates, on the part of the respondents, a total insensitivity to the findings made by the various commissions of inquiry and studies which have looked into the problem of police service on reserves and which have all concluded that it is inequitable when applied to First Nations, because it is not adapted to their culture and their specific needs. »
A wider reach
In February 2022, the Human Rights Tribunal also agreed with the community of Mashteuiatsh, citing “systemic discrimination” against Indigenous police forces.
Although the judgment of the Court of Appeal concerns only the community of Mashteuiatsh, it will have repercussions on all of the country’s Aboriginal communities, which are also struggling with chronic underfunding of their police forces.
“First Nations leaders are now urging government decision-makers to end their legal battle and not attempt to appeal this judgment to the Supreme Court,” reads a press release issued Wednesday morning by the Assembly of First Nations Quebec and Labrador, British Columbia Assembly of First Nations and Pekuakamiulnuatsh First Nation.
“Failing to take note of the conclusions of the Court of Appeal immediately, [les leaders] promise a mobilization of all First Nations in Canada to ensure that Indigenous communities can have access to police services of the same quality as those serving Indigenous populations,” they conclude.