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Disappearing Ink

Wednesday March 19, 2014

Hey, here’s a good one, Your Honour.

When is a law not really a law? When it’s a band by-law! What, not funny? No, I guess you’re right. It’s not funny at all, come to think of it.

By-law enforcement isn’t exactly the sexiest subject on the legal bookshelf.

I’m not aware of any reality TV shows about local zoning codes or parking regulations, snow removal or animal control.

But consider, Your Honour: what would town or city life look like if all these bylaws suddenly ceased to have effect? What if, for all that mayors and councils did to try to keep things running, listening to the voters, debating and passing local laws whose purpose was to make life better for the people they served, not one of their edicts was ever meaningfully enforced?

Not one officer patrolled the streets?

Not one court or prosecutor ever bothered to follow up with any violations, even supposing that tickets were even issued?

Well, Your Honour, maybe that would make for some gripping reality TV.

Sounds like science fiction? It’s actually a lot closer to the reality that’s gripping NAN communities.

One of the main contributors to this mess, it won’t shock you to know, is the Indian Act that still draws its colonial, Minister-Knows-Best boxes around the lives of treaty people on reserve.

This undead legislation grants a crutch of authority to band councils, lets them pass bylaws on a sheaf of issues both within and beyond the realm we usually think of as municipal business – traffic and property use, yes, but also the removal of trespassers and the prohibition of intoxicants.

But it provides hardly a shred of support for their effective implementation.

The authority to pass laws does not equate to the ability to enforce them, especially not when you have none of the tax base that municipalities rely on to put their words into action.

And when the only penalties available under the Indian Act for by-law violations are fines and/or imprisonment, those dour and bitter choices that Canada has force-fed into too many Indigenous mouths, court-based enforcement is bound to fail.

We know this from experience.

It is fair to say that the ground upon which local laws are made to grow is rocky enough to resemble a moonscape.

And predictably enough, it is only frustration, cynicism, confusion, and despair that have been cultivated from such poisoned earth.

When all the laws that impact Anishinabe life are crafted and controlled by outside forces, and none of the laws or law-keepers that are born within First Nations command any such resources or institutional respect, it is clear that we face a very deep and serious problem.

Some bands are pushing on against the status quo, with pilot projects and poorly-paid Peacekeepers, attempting to nurture some meaningful life from the legislative graveyard they’ve been left to live with. This is not just about clearing streets or controlling dogs, Your Honour, although those issues are clearly relevant to community well-being. Local laws cover life-and-death problems as well, which is why their neglect is so appalling.

Nation after nation, for example, has stood up and told their leadership that they don’t want alcohol, that most dangerous and destructive drug, to keep flooding their communities.

By-law after by-law has been passed declaring this or that reserve to be ‘dry’, but without the sustained commitment on the part of ALL partners in this struggle, such resolutions remain hollow, empty words.

It is true enough that even the most effective by-laws will not, on their own, eliminate the scourge of bootlegging or evaporate every bathtub of homebrew.

They will not cure addictions or completely free families from cycles of abuse and neglect that are deeper than any bottle.

But local laws, created and sustained by communities themselves, have the potential to be a much bigger part of the solution to these life-shattering problems than any legislation cooked up and catapulted in from elsewhere, Your Honour.

As you know, most of the laws that us court-folk deal with are reactive, applied only after something really bad has happened.

And it is a sad but honest fact that many of the criminal charges that are prosecuted in Anishinabe communities drip with the presence of alcohol (more than any other factor, hands down).

A community that had the resources to get at the root of alcohol use, manufacture, and importation before such calamities happen would be, quite simply, a safer place to live.

And local laws, when they really get working as communities intend them, wouldn’t need to simply slap violators with fines or prison time.

That isn’t the way that wrongs have been righted in the Nishnawbe-Aski Nation since time immemorial. And it isn’t how they will be ever be righted, now or in the future.

Creative, courageous progress through this impasse is not merely an ideal, something to talk vaguely about in boardrooms over tea. It is a matter of immediate and essential health, as well as justice.

Have a question for our columnist related to law issues in northern Ontario? E-mail him at:

Simon Owen is a lawyer at Beamish and Associates in Sioux Lookout, and practices primarily in the areas of criminal defence law and community justice initiatives.

Most of the people and communities he serves are members of the Nishnawbe-Aski Nation, who continually inspire and challenge him to find justice both within and beyond (or in spite of) the Canadian court system.

Simon holds law degrees from the University of Victoria and the University of British Columbia, where his thesis work focused on moral and cultural communication in sentencing.
These columns represent the personal views of the author alone, and not of any organization that he may be associated with.

Nothing in these columns should be taken as legal advice; please consult a properly instructed lawyer for any legal issues you may have.

Some names and details in these columns may be modified to protect confidentiality.

Finally, the author is not Anishinaabe, and this column is not intended to explain or interpret any Anishinaabe words, concepts, or principles. The author humbly apologizes for any errors or misunderstandings that he may make when referring to Indigenous ideas.

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