The Legal Affairs & Justice Unit is primarily responsible for providing legal advice and support to all areas of the Assembly of First Nations to ensure that the organization’s activities are conducted in accordance with the AFN Charter, governing policies and relevant jurisprudence.
The Legal Affairs & Justice Unit has been assigned responsibility for monitoring, analyzing and interpreting federal legislation and regulations. The Unit supports the Executive Committee in providing evidence before Parliamentary Standing Committees on any draft legislation under consideration. The Legal Affairs & Justice Unit provides support on issues concerning the organization’s financial transactions, audits and other administrative matters. The Unit is responsible for ensuring that all agreements and contracts to which the AFN is a party are drawn up in proper legal form. In doing so, the Legal Affairs & Justice Unit plays an important role in the negotiation, drafting and clearance of contracts and other legal instruments. Finally, the Legal Affairs & Justice Unit directs any litigation that the AFN is involved in.
The Government of Canada launched the independent National Inquiry into Missing and Murdered Indigenous Women and Girls (“National Inquiry”) in September 2016. AFN Resolution 37/2014 mandates the AFN Executive to take a “Families First” approach to ensuring that there is a respectful inclusion of voices and perspectives of the families in the discussions and development of action plans on the issue of Missing and Murdered Indigenous Women and Girls.
On June 13, 2017 the AFN was granted full rights, standing (Part II National Standing) and funding to participate in the National Inquiry. In preparing for future work, an AFN representative attended the first family hearing in Whitehorse on May 29 to June 1, 2017 as an observer. On June 15, 2017 Regional Chief Kevin Hart participated in a meeting with the National Inquiry’s Commissioners.
Policing & Public Safety
On June 12, 2016, the AFN and the Royal Canadian Mounted Police (RCMP) signed a Relationship Building Protocol. The first of many meetings was held at RCMP National Headquarters, Ottawa on September 22, 2017. This meeting aligned the objectives of the partnership, identified potential challenges and established the ongoing processes to operationalize the Protocol. The AFN and RCMP are working towards jointly identifying possible incidents and issues of discrimination in the RCMP and developing a long-term strategic response.
The AFN has also initiated discussions with Public Safety Canada and Emergency Preparedness to ensure the interests of First Nation are kept safe, while protecting the rights of First Nation citizens. In particular, the AFN’s advocacy has focused on: the repeal of the problematic elements of Bill C-51; getting handguns and assault weapons out of urban centres; responding to weather-related emergencies and natural disasters; and addressing gaps in services to Indigenous peoples and those with mental illness throughout the criminal justice system.
Over the past 20 years, there have been numerous efforts to bring about renewal within the Assembly of First Nations. Resolution 77/2016 was passed during the December 2016 Special Chiefs Assembly which refocused the mandate of the Chiefs Committee on AFN Renewal.
The Chiefs Committee on AFN Renewal met on September 22, 2016, February 16, 2017 and May 25, 2017 to continue their work on possible Charter amendments. The work of the Chiefs Committee on Charter Renewal has focused on: (a) appropriate governance consistent with nation building; (b) the role of leaders of traditional governance systems, clans and modern governance arrangements; and (c) making AFN more representative of First Nations and all of their citizens, regardless of where they reside or their status under the colonial Indian Act.
First Nations are largely excluded from the gaming industry through the operation of the Criminal Code of Canada and provincial regulations. As a result, the majority of First Nations cannot take advantage of the revenue opportunities offered by the gaming industry. The AFN has initiated discussions with the Minister of Justice and Attorney General in regards to consider options for amending the sections of the Criminal Code which negatively impact First Nations asserting jurisdiction over gaming.
The AFN has also retained a consultant to provide a research report on the various options for First Nations to assert their jurisdiction over gaming. The National Chief and the AFN Executive have struck a Chiefs Committee on Gaming.
On October 25, 2016 the federal government introduced Bill S-3: An Act to amend the Indian Act as its response to the Descheneaux decision. The draft legislation was introduced in the Senate. The government’s original amendments were intended to address three forms of gender-based discrimination found in Descheneaux: (a) first cousins whose grandmother lost status due to marriage; (b) women who were born out of wedlock between September 4, 1951 and April 17, 1985; and (c) minor children who were born of Indian parents, but lost entitlement to Indian status because their mother re-married a non-Indian after their birth.
On May 9, 2017, National Chief Bellegarde appeared before the Senate Standing Committee on Aboriginal Peoples to again speak to issues raised by Bill S-3. The National Chief’s submission supported the elimination of sex or gender-based discrimination, and he indicated the Indian Act, at its core, cannot be fixed. National Chief Bellegarde also spoke to the need for additional financial resources to provide essential government services to new registrants, as well as the need for additional reservation land entitlements to account for increases in new members. He encouraged First Nations to assert their inherent jurisdiction over all matters respecting First Nations citizenship.
In May, 2017, the Senate adopted an amendment by Senator McPhedren which is known as “6(1)(a) all the way”. This amendment was later eliminated by the House of Commons on June 22, 2017 and sent back to the Senate for approval. However, the Senate delayed debate on the bill until the fall.
On June 27, 2017 Madam Justice Masse of the Québec Superior Court denied a motion by Justice Canada to extend the deadline by a further six months. Canada has filed an appeal and will be heard by a single judge in July. As an alternative, the AFN has developed a template citizenship law for First Nations governments to use in enacting their own citizenship law.
On December 16, 2016 Indigenous and Northern Affairs Canada (INAC) Minister Carolyn Bennett appointed Mr. Fred Caron as a Ministerial Special Representative (“MSR”) mandated to engage with First Nations in border areas and with national First Nations organizations to discuss their views on Canada-US border crossing challenges and potential solutions. MSR Caron is currently scheduling engagement sessions with First Nations located along the Canada/USA border to discuss the border crossing challenges they face and perspectives on potential solutions. MSR Caron is scheduled to provide a report on his engagement sessions to the Minister of Indigenous Affairs in August 2017.
In response to the Senate’s report and the federal government’s decision to appoint a Special Representative, the National Chief and the AFN Executive struck a Chiefs Committee on Border Crossing. The AFN Executive also appointed Mike Mitchell as the AFN Special Representative on Border Security Issues. Mr. Mitchell is mandated to meet with Canadian and USA officials to discuss the development of a secured Indigenous identification border access card.
On November 9-10, 2016, Mr. Mitchell facilitated an AFN Working Group on Border Security and Border Crossing meeting in Niagara Falls. In attendance were Canadian officials from Public Safety; Canadian Border Services Agency; Immigration, Refugee and Citizenship; and INAC as well as officials from Homeland Security in the USA and representatives from First Nations in Canada and tribes in the USA. During the meeting the parties discussed some of the obstacles and possible solutions for development of the secured Indigenous border access card.
The Legal Affairs & Justice Unit is involved in a number of court actions that are of national interest to First Nations communities. Litigation is an effective tool in which the AFN seeks to advance the rights, benefits and exercise of Aboriginal and Treaty rights of First Nations. In addition, the AFN participates in litigation where legal issues are of broad public concern.
The AFN has used the law strategically to effect social change. Recent positive outcomes were achieved in the child welfare complaint now before the Canadian Human Rights Tribunal. Canada has increased funding to First Nation Child and Family Services (CFS) agencies, reformed the application of Jordan’s Principle and is engaged in overhauling the on-reserve CFS program. The AFN has also been heavily involved in legal matters arising from the Indian Residential Schools Settlement Agreement. The AFN recognizes that not all former students have equal access to the courts and, thus, the AFN has participated in legal action to ensure the former students have access to the full benefits available under the settlement agreement. Finally, the AFN has intervened in the Williams Lake Specific Claims case before the Supreme Court of Canada. As a co-drafter of the Specific Claims Act, the AFN supported the Williams Lake Band and sought to restrict Canada’s ability to appeal every decision of the Tribunal that Canada does not agree with.
The Legal Affairs & Justice Unit will continue to pursue positive changes to legislative, policy and common law principles that reflect reconciliation, and the entrenchment of the United Nations Declaration on the Rights of Indigenous Peoples.