By Chris D. Lewis, Commissioner, Ontario, Canada, Provincial Police
|Photographs courtesy of the Ontario Provincial Police|
round the world, indigenous populations are reaffirming their spiritual beliefs, nurturing their distinct cultures, and aggressively asserting their rights and their land claims under a variety of treaties.
While this in many respects is a very positive movement, many Aboriginal leaders and community members in Canada are frustrated with the perception of government inaction and delay towards land claims settlements, and they have responded with protest activities that sometimes lead to violence. The police service of jurisdiction is usually caught in the middle, trying to keep the peace and protect those in attendance.
The Ontario Provincial Police (OPP) has learned much about policing Aboriginal critical incidents over a number of years. The history and lessons learned arise from both positive operations and tragedies; the process has much to teach police services struggling with these issues anywhere.
|Aboriginal dancers and police officers appear during the grand entry for the powwow held on the front lawn of OPP general headquarters in 2009. A strong understanding of Aboriginal history and culture are essential when dealing with related critical incidents.|
The OPP defines an Aboriginal critical incident as one where the source of conflict may stem from the assertion of inherent Aboriginal rights or treaty rights. It can also be any incident involving an Aboriginal person or on a First Nations territory with potential for violence that requires activation of an integrated police response.
A number of significant Aboriginal protests and blockades took place in various jurisdictions in Canada in the 1970s and 1980s, but the one that first truly shocked the country took place in the summer of 1990. A group of armed Mohawk warriors from the First Nations community of Kanesatake occupied a piece of land in southern Québec near the village of Oka, which was slated to become a golf course, blockading a major transportation route in the process. There was an ancient First Nations burial ground on the land, although a land claim for the property had earlier been rejected by the federal government.
The crisis spread until four auto routes were blockaded in solidarity, including a major bridge into Montréal that ran through the Mohawk territory known as Kahnawake. Canadian and world attention focused on the nightly images of the Sûreté du Québec, the Royal Canadian Mounted Police, and eventually the Canadian military staring down armed Mohawk warriors at the barricades. The federal government eventually purchased the property from the municipality of Oka and the golf course expansion was cancelled.
After 78 days, the warriors withdrew, but not before one police officer had been fatally shot during an attempt to remove the original barricade by force, sparking a 15-minute gun battle. No charges in the death have ever been filed. After Oka, everyone knew the rules of engagement had changed forever.
On September 4, 1995, a number of Aboriginal men, women, and youths entered and occupied Ipperwash Provincial Park in southwestern Ontario, a popular summer recreation spot at the time. They believed that the park properly belonged to the nearby Stoney Point people and had a number of other historical grievances.
Several angry interactions ensued between OPP officers and the Aboriginal occupiers. Late on September 6, one of the Aboriginal men was fatally shot by an OPP officer during a confrontation. The officer was eventually convicted of a criminal firearms offense relating to the shooting and resigned from the OPP following an internal disciplinary hearing.
After Oka and Ipperwash, it was clear that, given the perception of government lack of action on underlying issues and the emotional commitment of Aboriginal people to their cause, Aboriginal critical incidents in Canada had the potential to be protracted, be linked, turn violent, and jeopardize innocent lives.
|Figure 1. The OPP Framework for Police Preparedness for Aboriginal Critical Incidents|
- To promote an operationally sound, informed, and flexible approach to resolving conflict and managing crises in a consistent manner
- To offer a framework that demonstrates accommodation and mutual respect of differences, positions, and interests of the involved Aboriginal and non-Aboriginal communities, as well as the OPP
- To promote and develop strategies that minimize the use of force to the fullest extent possible
- The Framework recognizes three stages of conflict: preincident, incident, and postincident.
- It provides detachment and regional members an overview of what to look for and what can be done.
- For best results, the Framework should be implemented and followed well before any police action is required. Minimizing the disruption and danger from any Aboriginal critical incident requires continuous work of consultation, relationship-building, and preparation.
Specialized Human Resources:
Provincial liaison teams, a director of Aboriginal issues, Aboriginal critical incident commanders, and an Aboriginal critical incident coordinator are available.
The Framework emphasizes that the issues and positions of various parties involved in any Aboriginal critical incident are extremely complex and must be understood by police to successfully negotiate a peaceful resolution.
- The Framework says the OPP will investigate and take appropriate action to civil disobedience and unlawful acts.
- This action will be completed with carefully measured responses employing only the level of force necessary to ensure the safety of all citizens and to maintain or restore peace, order, and security.
- The use of force is always a last resort.
Outrage and Criticism
The events at Ipperwash Park sparked outrage and criticism of the Ontario government’s actions and the OPP response from First Nations, the nearby community, and others. In the aftermath of Ipperwash, the OPP acknowledged that it needed to significantly rethink its approach to Aboriginal critical incidents and better prepare the officers who were called upon to police them. By the year 2000, the OPP had developed its internal document Framework for Police Preparedness for Aboriginal Critical Incidents, which calls for a measured, culturally sensitive approach and has guided the OPP in its response to subsequent occupations, blockades, and protests (see figure 1).1
Eventually, the new government called an inquiry into the events at Ipperwash Park to determine the facts and to make recommendations to avoid similar tragedies in the future.
Ipperwash Commissioner Sidney B. Linden opened his inquiry on April 20, 2004, and finished hearing testimony on August 22, 2006. The OPP incident commander testified in excess of 20 days, and many other involved officers were also called. OPP personnel provided thousands of pages of requested documents. For more than two years, the inquiry absorbed considerable energy and resources from all involved parties.
Commissioner Linden delivered his Report of the Ipperwash Inquiry in 2007.2
In his report, Commissioner Linden said, “For the most part, I believe that the OPP police/Aboriginal relations initiatives conform to the best practices identified in previous inquiries and reports.”3 Police services across Canada and in other countries have inquired about the OPP Framework document and program as they struggle to improve their own approach to Aboriginal critical incidents.
The OPP also created a separate Aboriginal Policing Bureau (APB) in 2007 to support Aboriginal policing effectiveness, enhance the OPP’s relationships with First Nations communities, and assist in any response to a critical incident. Among its many obligations and duties, the APB further developed and oversees the delivery of a respected course on First Nations culture and spirituality for OPP personnel and members of other law enforcement agencies.
The goal is to ensure that officers assigned to detachments with significant First Nations populations arrive with some knowledge and competence regarding Aboriginal culture and history. As part of this effort, the APB organized a major powwow on the front lawn of OPP general headquarters in the summer of 2009 to help celebrate the 100th anniversary of OPP service and its relationship with Aboriginal people.
The OPP is fortunate to have many officers with First Nations heritage who can assist. Such officers are in high demand, and care must be taken not to drain this valuable human resource through recruiting from other partners such as First Nations police services and through the sheer volume of work assigned.
Importance of Liaison Teams
The APB also trains and supports the OPP Provincial Liaison Team (PLT) program, which, in keeping with the Framework, has as a primary focus on relationship building and opening lines of communication with involved parties during response to major events and critical incidents. These teams began as Aboriginal liaison teams with a focus on First Nations issues, but the OPP soon realized that it needed good liaison work for all critical incidents, Aboriginal or otherwise.
The PLT program is an integral part of OPP planning and response to events such as demonstrations, protests, or critical incidents. Members are specially trained, experienced frontline officers who initiate and maintain contact with stakeholders in areas of potential conflict. They receive formal and ongoing training and work openly to mitigate issues through dialogue and mediation.
PLT members concentrate on diffusing tension and delivering accurate information to different communities, groups, and individuals to facilitate a safe and lawful environment for free speech and peaceful assembly. The goal is to avoid an escalation that will require a police response and reduce the resources required to manage an incident.
Special Aspects of Aboriginal Critical Incidents
In his report, Justice Linden noted that Aboriginal protests and occupations are significantly different from other critical incidents, and they “require unique police resources strategies and responses,” including the involvement of First Nations police officers.4
There are many aspects of Aboriginal critical incidents that are unique and complicate any efforts to police them efficiently. Jurisdiction is always multifaceted and complex. Under the Canadian Constitution, the federal government has responsibility for “Indians, and land reserved for Indians,”5 but both provincial and municipal governments get drawn into disputes. The OPP directly polices 19 First Nations communities, administers the police services for another 19 First Nations communities, and is often the first backup and support for the 9 self-directed First Nations police services in the province, which serve 94 communities. Since the OPP polices almost 12,500 miles of highway and 363,865 square miles of Ontario, Aboriginal critical incidents almost always take place wholly or partly in OPP jurisdiction.
Determining who actually speaks for a First Nations community is equally complicated. In Caledonia, in southwestern Ontario, the OPP has been policing a controversial land claim protest for several years. The OPP has had to negotiate with the elected Band Council of the Six Nations of the Grand Reserve, the traditional confederacy leadership, the Warrior society, the Men’s Fire Council, the Ongwehonwe Women’s Council, and other groups representing a First Nations constituency. Many groups may be expected to be consulted before, during, and after an Aboriginal critical incident, but their position and influence can vary significantly.
However, unlike most critical incidents, all Aboriginal critical incidents have the potential to evoke a solidarity response and cascade into related protests near or on other First Nations communities as a show of support and expression of similar frustrations. Misinformation, whether intentional or accidental, can spread rapidly by social media and often helps inflame this solidarity response. This effect can stretch police resources even further and magnify public concern and anger.
Aboriginal critical incidents often are also strongly associated with environmental and social justice concerns and can attract supporters from other activist—and sometimes radical—organizations. From a policing perspective, it is wrong to assume that any action at a protest necessarily has the backing of the elected band council or the First Nations community as a whole. An effective liaison team can help determine community support levels for any action and then assist in developing an appropriate police response.
The police role at any Aboriginal critical incident is to keep the peace, enforce the law, and protect the public. The OPP cannot negotiate or resolve any of the long-standing grievances and treaty issues, but the complexity of treaty negotiations that have been ongoing for hundreds of years invariably affects policing.
During the summer of 2010, a First Nations community in northwestern Ontario set up a blockade—a tollbooth—on a major highway to bring long-standing issues associated with the land to the forefront. They specifically chose a short section of the highway where their outstanding treaty issues gave them some claim to ownership.
While many inconvenienced drivers were adamant that the OPP should remove or arrest the tollbooth operators, no government agency ever came forward to establish ownership of the highway and seek a court injunction to remove the protestors. The OPP concentrated on traffic safety at the tollbooth and policing behavior at the stop until the dispute was settled. Some angry motorists interpreted this effort as assisting the perpetrators of the tollbooth.
Section 2 of the Canadian Charter of Rights and Freedoms extends a number of important rights to anyone on Canadian soil, including the right to freedom of expression, association, and peaceful assembly. The OPP works hard to respect these rights.
Section 25 of the charter also recognizes and affirms the existing Aboriginal peoples and treaty rights of the Aboriginal peoples of Canada. Section 25 states that the guarantees of certain rights and freedoms in the charter shall not be construed as abrogating any Aboriginal treaty rights and freedoms, including those acquired by the Royal Proclamation of 1763 and land claims agreements past, present, and future.6
Complicating matters, “color of right” is a recognized defense for many offenses under the Criminal Code of Canada, and participants in Aboriginal critical incidents are usually motivated by a strong and honest belief in their cause and their treaty rights.
Clearly, the underlying subtext to any Aboriginal critical incident is a complex web of competing and sometimes contradictory rights. Sorting that out while keeping the peace is difficult for any police service.
In late February 2006, a group of First Nations activists occupied the Douglas Creek Estates (DCE) in Caledonia, which at the time was a quiet town in southwestern Ontario. The DCE is a housing development on the edge of the town that abuts the large Six Nations of the Grand River Reserve. Some native leaders claim the DCE as First Nations land, among myriad major unresolved land claims in the area.
The developer went to court and on March 17, 2006, was successful in obtaining an injunction that directed the police service of jurisdiction—the OPP—to execute warrants of committal for contempt against the occupiers. In Ontario, the sheriff is responsible for enforcing an injunction, but the police service of jurisdiction has a statutory obligation to assist if requested or directed to by the courts. The police service has discretion as to when and how to enforce the injunction.
Knowing that enforcing the injunction would likely lead to a violent confrontation, the OPP waited three weeks, hoping for a negotiated settlement. When none seemed likely, the OPP entered the DCE in the early morning of April 20, 2006, arrested 21 individuals, and took control of the property.
In this era of instant communication, it was not long before news of the OPP enforcement of the injunction on DCE spread through the Six Nations community. Supporters of the land claim protest arrived by the hundreds, some carrying shovels and baseball bats.
Vastly outnumbered and knowing that further confrontation would likely lead to significant violence and possible loss of life, the OPP properly exercised discretion and withdrew from the DCE.
|A blockade with the Mohawk warriors’ flag exists at one of the entrances to the Douglas Creek Estates in the small town of Caledonia, Ontario, in 2006. The subdivision was |
eventually purchased by the Ontario government and remains occupied by protesters to this day.
The OPP then found itself policing an ongoing standoff in Caledonia that was growing increasingly violent and confrontational. Among other actions, native protestors and their supporters dragged a section of a hydro tower across Caledonia’s main thoroughfare, Highway 6; dug up the roadway; and blocked passage for several months, severely inconveniencing both commerce and residents. A hydroelectric transforming station was destroyed by fire, and there were many violent confrontations between frustrated residents and Aboriginal activists.
The land remains occupied by native protestors to this day and was eventually purchased by the provincial government in 2006 to maintain the status quo, pending resolution of land claim negotiations. After the purchase, the OPP went to court to have the injunction, which was still in effect, withdrawn.
Public Criticism of Policing
The OPP was severely criticized for what was termed a botched raid on the DCE, with many insisting that the OPP should immediately enforce the injunction. Few of these critics addressed the danger to the occupiers, the public, and the officers that further aggressive police action would have sparked.
The OPP also has been loudly and regularly accused of practicing two-tier or race-based policing in Caledonia, with critics charging that the law has been enforced differently for natives compared to others. The OPP strongly rejects this allegation, but does say it has practiced proper police discretion in policing the Caledonia dispute.
Canadian court decisions have made it clear that a police officer or service cannot use police discretion to favor an individual or group, but there is latitude as to how and when the full force of the law will be used.
In fact, the OPP has a strong arrest record in Caledonia. From March 2006 to early April 2011, the OPP had laid 176 charges against 77 persons relating to the DCE land claim, including a wide variety of serious charges:
- obstructing or resisting a police officer
- attempted murder
- robbery and wounding
- dangerous operation of a motor vehicle
- mischief under $5,000
- assault with a weapon
- intimidation through violence
- assaulting a police officer
- disobeying a court order
In each case, the officers considered public and officer safety in addition to possible incident escalation to determine when to make the arrests. In many cases, charges were laid after officers had completed a full investigation.
Yet critics regularly accuse the OPP of doing nothing in Caledonia and clamor for what they consider contemporaneous arrest, even when the officers were occupied with immediate crowd control and minimizing the risk to the public.
The men and women of the OPP have done an extraordinary job policing the Caledonia dispute in a measured and professional response. It is a testament to their training and their discipline that there has been no loss of life in the Caledonia dispute, although there have been some serious assaults.
The OPP calculates the cost of policing the Caledonia dispute at the end of each fiscal year. From March 2006 to early April 2011, the OPP had spent $46.1 million on policing costs above and beyond the regular expenses for its local detachment. An estimated 864,283 person hours have been invested in policing the dispute during the same period, and 442,937 of them were logged as overtime. There have been 43 incidents that resulted in injuries to officers and required first aid, medical attention, and lost work time. A total of 186 work days were lost as a result.
Since the Caledonia dispute began in February 2006, the OPP has responded to more than 320 Aboriginal critical incidents throughout the province.
While Caledonia is relatively quiet at this time, at the height of the dispute enormous demands were made on OPP resources and personnel, leading to increased overtime and fatigue throughout the province. The underlying causes of the dispute remain unresolved and some hostility lingers.
The province of Ontario and the OPP have also been named as defendants in a number of lawsuits resulting from the dispute in Caledonia.
Clearly, policing Aboriginal critical incidents can be unpredictably draining and expensive. Police executives should be prepared for the worst. Several lessons the OPP gleaned from its experience follow.
1. Communicate. As in all critical incidents, effective communication with all parties is essential. During the Caledonia dispute, the OPP concentrated on its communications with the First Nations community and neglected communication with the citizens of Caledonia. This oversight in the OPP response has been corrected for subsequent Aboriginal critical incidents. Police should have a strategy for monitoring and rapidly responding to misinformation, particularly in social media.
2. Be educated. Aboriginal protestors usually have a very strong sense of history, community, and commitment to a belief that they are protecting traditional territory, treaty rights, and sacred ground. Ignorance of this history and underestimating their commitment can lead to tactical errors that can endanger everyone.
3. Designate a liaison team. These officers play a crucial role in communication for any critical incident. They must be properly trained in negotiation, mediation, and psychology and be resistant to identifying too closely with any constituency or contact.
4. Anticipate morale issues. Officers policing ongoing critical incidents suffer through long periods of boredom interspersed with moments of sheer terror. They are often far from their families and support groups. When dealing with Aboriginal critical incidents, they are likely to face hostility from both sides of the dispute. Police leadership needs to acknowledge this and take steps to mitigate burnout and boredom. Officers must be informed and praised for their restraint and professionalism, if warranted, especially if critics are calling for more aggressive tactics.
5. Choose negotiating disputes wisely. The police role in Aboriginal critical incidents is to enforce the law, keep the peace, and protect the public. Settling the complex underlying issues is a long-term project between high levels of government and the Aboriginal community.
6. Expect criticism. Any police service involved in an Aboriginal critical incident should expect to have its actions questioned. Agencies must have a detailed framework for the response worked out in advance, communicate it properly to their officers, and follow it. Agencies should explain their approach consistently to all stakeholders but should not expect everyone to agree with the strategy.
The worldwide surge in Aboriginal pride and confidence combined with the slow resolution of land claims and undeniably desperate social conditions in many First Nations communities is a perfect storm for major critical incidents.
Police services in jurisdictions with significant Aboriginal populations experiencing unresolved treaty and rights issues need to prepare for these incidents, share information, and learn from each other to prevent future tragedies. ■
Editor’s note: This is the first article of a two-part series. In an article in a future issue of Police Chief magazine, Commissioner Lewis will discuss the provision of regular police services in First Nations communities.
1OPP Framework for Police Preparedness for Aboriginal Critical Incidents, OPP internal document, revised 2005.
2Report of the Ipperwash Inquiry, volume 4, http://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/report/vol_4/pdf/E_Vol_4_Full.pdf (accessed April 7, 2011).
5“IV: Distribution of Legislative Powers,” section 91, in The Constitution Act, 1867 (March 29, 1867), http://laws-lois.justice.gc.ca/eng/Const/FullText.html (accessed April 7, 2011).
6The Canadian Charter of Rights and Freedoms, sections 2 and 25, http://www.efc.ca/pages/law/charter/charter.text.html (accessed April 7, 2011).
Please cite as:
Chris D. Lewis, "Policing Aboriginal Critical Incidents," The Police Chief 78 (June 2011): 60–65.