The shadow from a Royal Canadian Air Force CC-330 Husky is seen as it passes the Supreme Court of Canada, during a flypast celebrating the RCAF centennial, on Canada Day, on July 1.Justin Tang/The Canadian Press
The Supreme Court of Canada on Wednesday ruled in favour of a First Nation that had sued the Quebec and federal governments for underfunding its police service, in a decision Indigenous law experts say could reshape how governments negotiate the funding of basic services in First Nations communities.
The 8-1 decision is a win for the Pekuakamiulnuatsh First Nation, an Innu community of several thousand people about three hours north of Quebec City. The court’s ruling highlighted that policing in Indigenous communities has long been underfunded. It concluded Quebec did not bargain in good faith when it refused to renegotiate policing funding with the community. The Supreme Court called that “an intransigent position.”
The federal government accepted a lower-court ruling two years ago and paid the community hundreds of thousands of dollars while Quebec kept the fight going.
The Supreme Court emphasized that Indigenous policing deals are related to reconciliation and the right of self-government. They are not ordinary contracts, the court said. Governments, such as Quebec, have tried to drive hard bargains, the court noted. The ruling referenced how the First Nation felt like they had a “knife to the throat” during contract talks.
More broadly, the court said the honour of the Crown, a constitutional principle usually applied to treaties, applied to this dispute.
“The honour of the Crown is a constitutional principle that looks forward to reconciliation in an ongoing, mutually respectful long‑term relationship,” wrote Supreme Court Justice Nicholas Kasirer.
The decision could become a significant precedent, said lawyer Julian Falconer, founding partner of Falconers LLP. The firm represented the Indigenous Police Chiefs of Ontario, an intervener in the case. Mr. Falconer said the court’s reasoning could be applied beyond policing to areas such as Indigenous education and health care.
“There’s a tendency for lawyers to overuse these words but this is absolutely groundbreaking,” said Mr. Falconer. “At its heart this case is about the safety of Indigenous people.”
The First Nation argued it had been shortchanged on police funding by $1.6-million in the mid-2010s. The contract between the First Nation, Quebec and Canada goes back to 1996, after Canada adopted the First Nations Policing Policy in 1991.
The community sued in 2017 and lost at Quebec superior court in 2019. But in 2022 it won at the Quebec Court of Appeal, which ordered the governments to pay the $1.6-million. Canada paid its share, about $830,000. Quebec did not and appealed to the Supreme Court. On Wednesday, the top court upheld the Quebec appeal court’s order for the province to pay its share, about $770,000.
The federal Liberals during the 2019 election campaign pledged new legislation to recognize First Nations policing as an essential service. In early 2021, Prime Minister Justin Trudeau told his public safety minister to accelerate work on the plan. In late 2021, he said to continue the work. No legislation has emerged.
Federal Public Safety Minister Dominic LeBlanc’s office declined comment. As of late Wednesday, Public Safety Canada and Quebec’s Minister of Public Security had not responded to requests for comment.
The Supreme Court ruling lands in the middle of two other related Indigenous policing cases. In early 2022, the Pekuakamiulnuatsh First Nation also won a case against Canada at the Canadian Human Rights Tribunal on the same issue of underfunded public safety. An appeal was heard in February at the Federal Court of Appeal. The case is under reserve, an appeal court spokeswoman said Wednesday.
In a second case, where First Nations police chiefs allege underfunding in Ontario, a three-week hearing is scheduled for January at the Canadian Human Rights Tribunal. Mr. Falconer is counsel for the Indigenous groups.
He said governments have ignored previous rulings and bargained too aggressively. “First Nations are told take it or leave it,” he said.
This was clear in the Supreme Court decision. Justice Kasirer described a “no-win situation” for the First Nation because of the “absence of genuine negotiations” with Quebec. Justice Kasirer wrote that the First Nation could choose to either “impoverish itself” to properly fund its police and preserve the progress that Indigenous policing represented in terms of self-government or end its policing service, which would have meant going back to the “inadequate services” of Quebec’s provincial police force, “suffering a setback with respect to self‑government.”
Ghislain Picard, the Assembly of First Nations regional chief of Quebec-Labrador, said the question now is whether Quebec and Ottawa will “change their way of doing things.” He criticized Premier François Legault’s government of promoting a nation-to-nation relationship with Indigenous peoples but fighting them in court.
“We’ve lived through this for the past 30 years, if not more,” Mr. Picard said. “Communities oftentimes have no choice but to sign on the dotted line. Because if they don’t, they don’t get the money. Then they’re at the risk of losing their police service.”
The Supreme Court provided details about how the relationship and negotiations between governments and Indigenous groups should change, said Benoît Amyot, a partner at Cain Lamarre and counsel for Pekuakamiulnuatsh First Nation. The policing contracts are supposed to be about delivering quality public safety.
“You have to respect the goal of the contract, not only the letter of it,” Mr. Amyot said. “That’s huge.”