The lawsuit claims it is unconstitutional to refuse to require police to enforce First Nations laws and bylaws.

Toronto Star: The Chiefs of Ontario have filed a lawsuit against the province and the federal government claiming it is unconstitutional to refuse to require police to enforce First Nations laws and bylaws.

The case filed in Ontario Superior Court of Justice seeks the financial and other resources necessary to properly enforce and prosecute laws passed by First Nations communities to protect their people. 

That includes special laws aimed at banning “certain intoxicants” and keeping drug traffickers and other criminals at bay to safeguard reserves.

“We can no longer tolerate this discrimination,” Ontario Regional Chief Glen Hare told a news conference Tuesday as he outlined the challenge to Ontario’s new Community Safety and Policing Act, which took effect April 1.

“Many provincial and federal laws do not apply on reserve, such as those relating to land management, anti-dumping, environmental protection and tenancies,” says a 26-page statement of claim. 

“First Nations can make laws to fill this void, but those laws cannot effectively function without enforcement and prosecution. As a result, reserve residents live in a legal limbo.”

That limbo, for example, means a landlord on a reserve cannot rely on provisions in provincial law to eject a dangerous tenant, and a tenant cannot be protected from an unfair landlord, said First Nations lawyer Kent Elson.

The statement of claim has not been tested in court and a statement of defence has not yet been filed.

Jean-Sebastien Comeau, a spokesperson for the ministry of Public Safety, said the department will refrain from commenting “given the matter is before the courts.” 

While the office of Ontario Solicitor General Michael Kerzner has previously said no changes in the law are needed, Kerzner would not comment further on Tuesday.

“As this matter is before the court, it would be inappropriate to comment any further,” he said when pressed by New Democrat MPP Sol Mamakwa (Kiiwetinoong) in the legislature.

“That’s just a lame excuse the way they hide behind the court … they can actually make the change today,” Mamakwa, who is Indigenous, said later. 

In March, Kerzner’s office told the Star “under the Police Services Act and Community Safety and Policing Act, police can enforce municipal and First Nations bylaws.”

But it is the lack of mandatory enforcement and support by Crown prosecutors that is the concern, First Nations leaders maintain.

Optional enforcement by the OPP, which has contracts in small First Nations communities lacking their own police services, leaves Indigenous areas at a disadvantage from the perspective of drugs, alcohol, illegal dumping of construction waste and other problems.

The result is “two-tier policing” between Indigenous and non-Indigenous communities, said Darren Montour, chief of police for the Six Nations reserve near Brantford and president of the Indigenous Police Chiefs of Ontario. 

“It keeps me up at night.” 

Liberal MPP Adil Shamji (Don Valley East) said the province’s approach betrays a “double standard” in policing. 

“For as much as we use the words ‘truth and reconciliation,’ we can’t just talk the talk, we need to walk the walk,” said Shamji.

Stacia Loft, deputy grand chief of the Association of Iroquois and Allied Indians, said the new Community Safety and Policing Act is an affront to First Nations, which have tried for years behind the scenes to get mandatory enforcement written into the legislation.

“The Ford government says it respects our communities, our nationhood and self-determination but their legislation … says otherwise,” Loft said.

— With a file from Joy SpearChief-Morris

Rob Ferguson is a Toronto-based reporter covering Ontario politics for the Star. Follow him on Twitter: @robferguson1.