First Nation’s bylaw prosecutor’s office said to be first in Canada

By Ian Burns

Law360 Canada (November 28, 2022, 2:23 PM EST) -- In what is believed to be a first in Canada, an Alberta-based law firm has been contracted to enforce the bylaws of a First Nation on its territory.

In late October the Siksika Nation, which is about 100 kilometres east of Calgary, set up a bylaw prosecutor’s office, bringing in Mincher Koeman LLP to litigate Siksika’s bylaws in provincial courts “thereby making anyone who chooses to enter our lands subject to the Nation’s authority and laws as passed by our legislative body — Chief and Council,” the nation said in a news release.

Siksika councillor Samuel Crowfoot said the decision to establish the office was made because the nation’s bylaws “weren’t really being enforced,” noting there was no one in place to prosecute them, there was no way to channel fines back to the reserve and issues had arisen with the RCMP, which was previously responsible for the nation’s policing.

Siksika councillor Samuel Crowfoot

Siksika councillor Samuel Crowfoot

“The whole process of enforcement falls apart if we don’t have everyone there,” said Crowfoot, himself a lawyer. “Having someone to prosecute was a missing piece of the puzzle, and we were essentially told that the Crown would not allow them to prosecute for us — everyone kind of threw up their hands, but I said let’s just create our own prosecutors.”

Siksika Nation has a population of approximately 7,800 people and is part of the Siksikaitsitapi – Blackfoot Confederacy. Crowfoot said the nation doesn’t have a lot of bylaws on the books right now but has quite a few in the wings, including one concerning elder protection and another which would allow banishment if the peace and safety of the community is threatened.

“And those are the bylaws that are going to get a lot of the prosecutors working because they are civil, but they will have criminal type penalties attached to them,” he said, noting the Indian Act allows First Nations to sentence people up to 30 days in jail or impose a fine of up to $1,000. “I want to see that authority flexed, so when people come on to Siksika they understand this is our land — so you have to follow our rules and our guidelines.”   

Andrew Koeman, a partner in Mincher Koeman LLP, said his firm has been working with Siksika for a number of years now and taking on the role of bylaw prosecutor “really wasn’t a decision.”

“The question is not why would we do this, but why would we not? It is part of our obligation as lawyers to be part of this and facilitate reconciliation and autonomy,” he said. “This is an opportunity for Siksika to take a step in taking their autonomy, and for us to join them and be a part of that.”

Koeman’s partner Lynsey Mincher said the prosecutor’s office is in its infancy and she and Koeman are going over training manuals for prosecutors and bylaw officers, looking at the gaps in the bylaws and determining what Siksika as a nation wants to develop.

“We are working to develop the office because the intention is that it will grow beyond just me and Andrew,” she said. “But to truly make this separate and apart from anything which has existed before and be back to a true Indigenous process that is recognized as an Indigenous process — who would ever turn down that opportunity?”

Crowfoot said the office is “still very grassroots” and things are being built from the ground up, but hopes it can serve as a model for other First Nations. He also said there are a number of pieces already in place to support the success of the office, such as a provincial court on the reserve and a traditional dispute resolution process known as Aiskapimohkiiks, which hopes could morph into a tribal court like those seen in the United States.

“Down there each tribe has their own constitution, individual branches of government are laid out and their rights are delineated — it’s like a mini-country for a lot of reservations, and I don’t see why that model can’t apply in Canada,” he said. “We have a lot of the same things — we are sovereign nations and have the ability to regulate and enforce affairs in our territory.”

More information about Siksika Nation can be found here.

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