'For years First Nations have been told that their laws cannot be prosecuted, this proves that they can be,' lawyers Jay Herbert told APTN.
History was made in Elliot Lake Wednesday when a First Nation successfully prosecuted one of its own laws for the first time in an Ontario courtroom.
And in doing so, Mississauga First Nation (MFN) not only banned someone alleged in court documents as a possible drug dealer from its community, about 550 km northwest of Toronto, but also increased pressure on Ontario to recognize First Nation legal systems.
“I think it’s exciting for us. It’s been a long time coming,” Chief Brent Niganobe told APTN. “Our lawmaking team has been hard at work on this for a long time.”
Roberta Witty pled guilty to two counts of trespassing and failing to comply with an order to leave the community by the MFN band council beginning in February 2020.
It took more than four years to get the conviction in large part because police refused to charge Witty questioning the legal authority of MFN’s laws.
“We wanted our laws enforced and they were not being enforced,” said Niganobe.
In 2009, MFN developed its Land Code, which recognized the community’s right to control its lands.
In 2015, it passed the Misswezahging Constitution, which states MFN has the “inherent right given by the Creator to enact laws necessary in order to protect and preserve Anishinaabe culture, to protect our lands, our language, customs, traditions and practices.”
The Community Protection Law followed in 2019.
In the end, MFN was forced to hire a lawyer who applied earlier this year for a private prosecution against Witty.
A justice of peace approved the application leading to MFN’s lawyer, Jay Herbert, to prosecute Witty.
A private prosecution is a last resort to file charges against people without a police investigation.
“For years First Nations have been told that their laws cannot be prosecuted, this proves that they can be,” Herbert told APTN.
“I think it is a huge step forward for First Nations who want their laws to be followed but are often challenged by law enforcement that they cannot be used.”
Witty was ordered to pay $1,000 to the community.
Dressed in a black Sons of Anarchy hoodie, she appeared via video from a cellphone in what appeared to be a car. She told the court she works maybe once a month and needed a year to pay the fine.
Witty also told the court she now lives in nearby Blind River.
APTN attempted to reach her through Facebook messenger, but didn’t get a response.
Law enforcement may have refused to respect MFN law, but the money to pay for Herbert came from a government-funded pilot project.
The pilot launched in December 2022 to cover costs specifically for private prosecutions of First Nation laws.
“While we cannot comment on specific cases that are before the courts, the ministry is not aware of any convictions arising from a private prosecution of a First Nation’s land code in Ontario courts to date,” said Keesha Seaton, spokesperson for the ministry of the attorney general on Tuesday.
At least until following day in Elliot Lake.
APTN will have more on this and First Nation laws next week on a special Nation to Nation.
