Environmental Laws. Enforcement of First Nation Land Laws & Environmental Protection Laws

Transcription

1 Environmental Laws Enforcement of First Nation Land Laws & Environmental Protection Laws

2 What is Enforcement? Definitions of enforcement To compel or impose observance of the law To encourage compliance with the law To prevent, sanction or punish breaches of the law 2

3 Environmental Laws Environmental protection laws can: set standards e.g.- emissions from factories, sewage treatment and disposal establish standards for personal behaviour in public - like littering These laws are intended to achieve compliance with the standard or expected behaviour, not at least at the first stage -- to punish 3

4 Achieving Compliance Education publicity, developing teaching tools, etc. to inform people about a law Warnings advance notice, signage pointing out NEW offenses Checking - test, inspect, report and sample Compliance Orders for example, cease and desist are examples of ways governments try to achieve compliance. A statutory offense like driving over the posted speed limit, on the other hand is created only to punish non-compliance with the law 4

5 Enforcement and Punishment The Framework Agreement and FNLMA provide for the enforcement of First Nation land laws, including environmental laws: Framework Agreement, ss.19, 24 FNLMA -ss. 20(3), 21(1)(2), 22, 23, 24 5

6 Framework Agreement Enforcement Provisions 19.1 To enforce its land code and its First Nation laws, a First Nation will have the power to (a) establish offences that are punishable on summary conviction; (b) provide for fines, imprisonment, restitution, community service, and alternate means for achieving compliance; and (c) establish comprehensive enforcement procedures consistent with federal law, including inspections, searches, seizures and compulsory sampling, testing and the production of information. 6

7 Section 24.3 of Framework Agreement 24.3 The First Nation environmental protection standards and punishments will have at least the same effect as those in the laws of the province in which the First Nation is situated. In Ontario, the Environmental Protection Act, s. 186 provides: The amount of the penalty shall not exceed $100,000 for each day or part of a day on which the contravention occurred or continued. 7

8 Strategies for Enforcement First Nation law enforcement officers (including environment) and/or other police services Summary Conviction and Ticketing procedures Courts (FN JP or Provincial Courts) Prosecution (including costs of prosecution) Punishment (fines, collection, other orders) 8

9 Summary Conviction Process One option under the Framework Agreement is Criminal Code summary conviction procedure: Swear information and summons issued to accused for offense* Accused (or agent) MUST appear in court Adjourned: Accused must re-appear to enter plea Trial or guilty plea in court 9

10 First Nation Law-Making Power FA 19.2: First Nation laws may adopt or incorporate by reference the summary conviction procedures of the Criminal Code for the purpose of enforcement. While not expressly stated, this provision means that a First Nation can establish its own rules of criminal procedure for enforcement of its laws The procedure for enforcement of laws in Provinces is set out in separate statutes; e.g. Offence Act (BC) 10

11 Ticketing Process Provided for in provincial and federal legislation as alternative to court appearances by offenders A ticket is issued to accused for offense Accused may plead guilty by mailing back ticket and paying a fine Fines MUST be a fixed amount (e.g. $200 for littering or going through a stop sign) so accused can plead guilty by mail and send in payment Accused may plead not guilty and follow usual court process for that offence, which normally means a trial 11

12 First Nations and A Ticketing Process To use a ticketing process a First Nation can: Make an appropriate First Nation Enforcement Law, including a ticketing process AND Enter into contract or agreement with a province to use provincial system to enforce a First Nation ticketing system for fixed fine offences and for the processing and trial of other offences It is suggested here that both of these measures be initiated on a province-wide basis, beginning with the province of British Columbia 12

13 STORMY v AGRICULTURE CANADA and CITY OF OTTAWA An example of an enforcement arrangement 13

14 Federal Contraventions Act In 1986, the Law Reform Commission of Canada recommended that federal infractions be processed in a manner similar to that found at the provincial level: A regime contained in a federal Infractions Procedure Act could be modeled upon legislation presently in force in Ontario and British Columbia the Provincial Offences Act, and the Offence Act respectively. Both deal with the procedures for the disposition of provincially created offences. [The FA First Nations in a province could each adopt a similar model, with the same intention: effective enforcement] 14

15 Contraventions Act... 2 A new ticketing scheme was adopted with the passing of the Contraventions Act in The Act allows the federal government to designate federal statutory offences as contraventions, so they can be processed using a ticketing system, instead of the summary conviction process included in the Criminal Code. Making the system work in the various provinces, however, was a problem. The Act was amended in 1996 to allow the federal government to use existing provincial prosecution schemes to prosecute federal contraventions. 15

16 Contraventions Act... 3: The Challenge More than 12 years after its adoption, the Act was still not operational in some jurisdictions in Canada. This reflects the fact that provincial governments must be willing to focus time and resources to work with the federal government to implement the Act... The negotiation of an agreement, as well as the communication and training required of court personnel and enforcement officers are all fundamental conditions for the successful implementation of the Act. For various reasons, a provincial government may conclude that the implementation of the Act in their province is not sufficiently a priority to allocate the required resources. [FA First Nations will have to address the same prov l concerns] 16

17 Step One: The Commitments 1. To the concept of First Nation Enforcement Laws that are substantially the same for all FA First Nations in each province 2. To the negotiation of an Agreement with each province to implement these laws using the provincial courts and enforcement system 3. To having the LAB initiate these processes, starting with the province of British Columbia 17

18 Penalties Punishment for a summary conviction offence (if not provided in the specific law) can be no greater than $5,000 fine and 6 months jail or both However, penalties for environmental offences can be significantly higher e.g. $100,000/day or more Since it is not possible to fix the penalty for most environmental offenses, the more formal summary conviction process will still be needed There will also need to be provision for procedures to collect fines, for other court orders to prevent or enjoin conduct, or to provide for alternative sentences, etc. 18

19 Step Two: The Agreement Policing The role and training of FN Enforcement Officer and other police services will need to be identified and assured Preliminary work on this aspect has already begun, with contacts established and discussions held by George Gfellner It is recommended that he continue with this project and integrate it with the provincial negotiations 19

20 Step Two: The Agreement Courts FNLMA, s. 24(5): If no justices of the peace are appointed for a First Nation, its First Nation laws shall be enforced through a court of competent jurisdiction of the province in which its First Nation land is situated. The JP option is still on the table and some, or many, First Nations may wish to explore it further The Commitments outlined above, however, include a commitment to make the provincial courts available and effective through Agreement with the Province 20

21 Step Two: The Agreement Prosecution Framework Agreement, s. 19.9: First Nation hires prosecutor (only as required) First Nation enters into agreement with Canada or a province to use its prosecutors First Nation enters into agreement with Canada for a federal agent The second option is preferable, especially with respect to a province, but the issue of costs of prosecution will be a difficult one and may involve further agreement with Canada 21

22 Other Considerations There will certainly be more elements to a First Nation Enforcement Law, and to any agreement or agreements negotiated in relation to First Nation Law Enforcement. This is a very basic look at the fundamentals. It should also be noted that this initiative will have implications for First Nations that are not parties to the Framework Agreement, but have the same concerns about enforcement of their laws and by-laws. This will, in a sense, be a precedent for them as well. QUESTIONS? 22

23 Further Reading A Review of Implementation of the Contraventions Act across Canada was carried out in 2010 by DOJ: Aboriginal Administrative Law: The New Realities (BC CLE $110), several articles on emerging issues, including enforcement, arising from Westbank Self-Government and the Nisga a and Tsawwassen Treaties: 23