Where does authority and enforcement fit into your guardian program?

The question of authority and enforcement is a key and complex consideration for many Indigenous Guardian programs.  Not all guardian programs want to put their staff or organizations in a position of enforcing laws and the corresponding legal and administrative implications of doing so.

For those communities who do, it is important to consult with legal counsel to fully understand the legal context and implications of your guardian program being involved in enforcing either Indigenous Laws and/or Canadian Laws.  It is also important to understand the responsibilities, training, liabilities and administration that accompany enforcement roles.

Inherent and Delegated Authority

Prior to the arrival of settler society, Indigenous people exercised legal authority over their lands and waters. This inherent authority still exists today, and continues to be articulated through Indigenous laws, customs, written policies and practices. In the present day context, Indigenous communities are taking different approaches and are at different stages of revitalizing, articulating and putting into practice their Indigenous legal frameworks.

With the advent of the Canadian state and constitution, there are now multiple legal frameworks and sources of authority that govern activities on the lands and waters. At this point in time, Canadian law offers little recognition to Indigenous law and Indigenous authority to enforce their laws. As a result, any enforcement of Indigenous laws, especially those that conflict with the Canadian legal system, may risk repercussions under Canadian law. Under some arrangements, Canada has delegated authority to enforce Canadian Law to Indigenous governments.

For a more detailed discussion about both the inherent authority to enforce Indigenous laws and the delegated authority to enforce Canadian laws see Infosheet below:

Info sheet

Inherent and Delegated Authority to Enforce Indigenous and/or Canadian Laws and Policies

Inherent and Delegated Authority

Inherent Authority to Enforce Indigenous Laws and Policies

For some Indigenous Guardian programs, a clear mandate has been established to articulate and enforce Indigenous laws and policies. If this is something that your community is considering, here are some questions to think about:

  • Which Indigenous laws and policies are you most interested in enforcing?  
  • Are those laws and policies clearly articulated and broadly understood by the people they apply to? If not, are you willing or able to have conversations about Indigenous law?
  • Will these laws and policies apply to members of your community and/or people from outside your community?
  • Can compliance with your Indigenous laws and policies be achieved through education and outreach?
  • Has a process for enforcing your Indigenous laws and policies been established and agreed upon?  
  • What will be the range of responses if your Indigenous law is not followed? How will a response be chosen?
  • What will you do if there is a conflict between your Indigenous laws and Canadian laws? Have you received legal advice to understand the options and implications?
  • Are procedures in place to support and protect the safety of your Indigenous Guardians if they find themselves in conflict or hostile situations?  

Delegated Authority to Enforce Canadian Laws and Policies

For some Indigenous Guardian programs, there is a desire to take specific actions to address issues of non-compliance with Canadian laws and policies. This can lead to enforcement activities such as issuing tickets, issuing fines, confiscation, warrants for arrest, etc. Under the Canadian legal system, however, Indigenous Guardians do not typically have the authority to conduct these types of activities.

There are exceptions where some aspects of enforcement authority related to Canadian laws have been delegated to Indigenous Guardians or representatives. For instance, the DFO Aboriginal Fisheries Guardian designation or through provincial agreements re: Indigenous Conservation Officers and Park Rangers and Wardens.

Info sheet

Inherent and Delegated Authority to Enforce Indigenous and/or Canadian Laws and Policies

“We have a position, regardless of what the provincial and federal laws are up there. We have our own position in terms of hunting on the coast. So if we see hunters, we ask them to leave.”

Doug Neasloss, Kitasoo Xai’xais Nation
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“We have a position, regardless of what the provincial and federal laws are..."

 “We want to be able to manage and take care of our own resources… Now with this new resurgence with the Guardian Watchmen Program, we are looking after the resources and starting to take care of what we used to.”

Robert Russ, Haida Fisheries Department
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 “We want to be able to manage and take care of our own resources…"

Story

Educating Resource Users About Indigenous Laws

In some places, guardians are playing a role in ensuring that Indigenous laws related to lands and resources are understood and followed by visitors to their territory. Having pamphlets and information on Indigenous laws that guardians can hand out and share with visitors can be very helpful.  

Story

Educating Resource Users About Indigenous Laws

Community resource

Guardian Watchmen: Upholding Indigenous Laws to Protect Land and Sea

Community resource

Enhancing the Environmental Stewardship Authority of Indigenous Peoples - Coastal Stewardship Network