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ABORIGINAL CRITICAL INCIDENTS

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Aboriginal critical incidents

A measured and professional response

by Chris D. Lewis

Indigenous populations are reaffirming their spiritual beliefs, nurturing their distinct cultures and aggressively asserting their rights and land claims under a variety of treaties.

While this in many respects is a very positive movement, many aboriginals are frustrated with the perception of government inaction and delay towards land claims settlements. They respond 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 arising from both positive operations and tragedies; the process has much to teach police services struggling with these issues.

{Brief history}

The OPP defines an aboriginal critical incident as one where the source of conflict may stem from the assertion of inherent aboriginal 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 an integrated police response.

Significant aboriginal protests and blockades occurred in various jurisdictions 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 Kanesatake occupied land slated to be a golf course in southern Québec near the village of Oka, also blockading a major transportation route. There was an ancient First Nations burial ground on the land, although the federal government had earlier rejected a claim for the property.

The crisis spread until four auto routes were blockaded in solidarity, including a major Montréal bridge that ran through the Mohawk territory known as Kahnawake. Canadian and world attention focused on the nightly images of the Sûreté du Québec, RCMP and eventually the Canadian military staring down armed Mohawk warriors at the barricades.

The federal government eventually purchased the property from Oka and cancelled the golf course expansion.

The warriors withdrew after 78 days but not before one police officer was 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, aboriginal men, women and youths occupied Ipperwash Provincial Park in southwestern Ontario, then a popular summer recreation spot. They believed the park properly belonged to the nearby Stoney Point people and had a number of other historical grievances.

Several angry interactions ensued between police and the occupiers. Late on September 6, an OPP officer fatally shot one of the aboriginal men during a confrontation. He was eventually convicted of a criminal firearms offence relating to the shooting and resigned following an internal disciplinary hearing.

After Oka and Ipperwash, it was clear that, given the perception of government inaction on underlying issues and the emotional commitment to the cause, aboriginal critical incidents had the potential to be protracted, linked, turn violent and jeopardize innocent lives.

{Outrage and criticism}

The events at Ipperwash sparked outrage and criticism of the Ontario government’s actions and the OPP response from First Nations, the nearby community and others. The OPP acknowledged that it needed to significantly rethink its approach to aboriginal critical incidents and better prepare officers called upon to police them. By 2000, it had developed an internal document, , calling for a measured, culturally sensitive approach, which has guided it 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 to determine the facts and make recommendations to avoid similar tragedies in the future. The OPP incident commander testified for more than 20 days and many other involved officers were also called. Personnel provided thousands of pages of requested documents. The inquiry absorbed considerable energy and resources from all involved parties for more than two years.

Commissioner Sidney B. Linden finished hearing testimony on August 2006 and delivered his report in 2007<2>.

“For the most part, I believe that the OPP police/aboriginal relations initiatives conform to the best practices identified in previous inquiries and reports,” Linden noted <3>. Canadian and international police services 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 effectiveness, enhance its relationships with First Nations communities and assist in responding 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 and other law enforcement personnel.

The goal is to ensure officers assigned to detachments with significant First Nations populations arrive with some knowledge and competence about 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 peoples.

The OPP is fortunate to have many officers with First Nations heritage who can assist. They are in high demand and care must be taken not to drain this valuable human resource through sheer volume of work and recruiting from other partners, such as First Nations police services.

{Importance of liaison teams}

The APB also trains and supports the OPP Provincial Liaison Team (PLT) program. In keeping with the framework, its primary focus is relationship building and opening lines of communication with involved parties during response to major events and critical incidents. PLT 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 program is an integral part of OPP planning and response to 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 communities, groups and individuals, enabling 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}

Linden noted in his report that aboriginal protests and occupations are significantly different from other critical incidents and “require unique police resources strategies and responses,” including the involvement of First Nations police officers <4>. There are many unique aspects which 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 and is often the first backup and support for the province’s nine self-directed First Nations police services, which serve 94 communities.

Since the OPP polices almost 12,500 miles of highway and an area of 363,865 square miles, 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. The OPP has policed a controversial land claim protest in Caledonia (Southwestern Ontario) for several years, negotiating 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. Many may expect to be consulted before, during and after an aboriginal critical incident, but their position and influence can vary significantly.

However, unlike most others, 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 and often be inflamed by social media. This effect can stretch police resources even further and magnify public concern and anger.

Aboriginal critical incidents are often 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 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 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 highway where their outstanding treaty issues gave them some claim to ownership.

While many inconvenienced drivers were adamant that the OPP 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 them. The OPP concentrated on traffic safety at the tollbooth and policing behaviour at the stop until the dispute was settled. Some angry motorists interpreted this effort as assisting the perpetrators.

{Competing rights}

Section 2 of extends important rights to anyone on Canadian soil, including freedom of expression, association and peaceful assembly. The OPP works hard to respect these.

Section 25 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 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, “colour of right” is a recognized defence for many offences 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 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.

{Caledonia challenge}

In late February 2006, a group of First Nations activists occupied the Douglas Creek Estates (DCE), a housing development on the edge of the then quiet town of Caledonia 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 successfully obtained an injunction directing 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, although it does have discretion as to when and how to enforce it.

Knowing that enforcement would likely lead to a violent confrontation, the OPP waited three weeks, hoping for a negotiated settlement. When none seemed likely, it 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 wasn’t long before news spread through the Six Nations community. Protest supporters 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.

{Ongoing confrontation}

The OPP found itself policing an ongoing standoff 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 transformer station was torched and there were many violent confrontations between frustrated residents and aboriginal activists.

The land remains occupied by native protestors to this day. The province eventually purchased the land 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 it should immediately enforce the injunction. Few critics addressed the danger to occupiers, public and 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 the law is enforced differently for natives compared to others. The OPP strongly rejects this allegation, saying it has practiced proper police discretion in policing the dispute.

Canadian court decisions have made it clear that a police officer or service cannot use discretion to favour 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, it laid 176 charges against 77 persons relating to the DCE land claim, including a wide variety of serious charges. 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.

Critics regularly accuse the OPP of doing nothing in Caledonia and clamour for what they consider contemporaneous arrest, even when 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 discipline that there has been no loss of life, although there have been some serious assaults.

{Extraordinary resources}

The OPP calculates the cost of policing the Caledonia dispute at the end of each fiscal year. From March 2006 to early April 2011, it spent $46.1 million on policing costs above and beyond the regular local detachment expenses. An estimated 864,283 hours, including 442,937 in overtime, were invested in policing the dispute during the same period. There were 43 incidents resulting in officer injuries requiring first aid and medical attention, resulting in 186 lost work days.

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 its height 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 and OPP have also been named as defendants in lawsuits resulting from the dispute.

{Lessons learned}

Clearly, policing aboriginal critical incidents can be unpredictably draining and expensive. Police executives should be prepared for the worst. Here are some lessons the OPP has gleaned.

1. Communicate. As in all critical incidents, effective communication with all parties is essential. During the Caledonia dispute, the OPP concentrated on the First Nations community and neglected communication with Caledonia citizens. This oversight 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 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 resist 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 and 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 when critics call 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 its actions to be questioned. Agencies must have a detailed framework for the response worked out in advance, communicate it properly to their officers and follow it. Explain the approach consistently to all stakeholders but do 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.

1 OPP Framework for Police Preparedness for Aboriginal Critical Incidents, OPP internal document, revised 2005.

2 Report 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).

3 Ibid, 90.

4 Ibid, 73.

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).

6 The Canadian Charter of Rights and Freedoms, sections 2 and 25, http://www.efc.ca/pages/law/ charter/charter.text.html (accessed April 7, 2011).

FIGURE 1

The OPP framework for police preparedness for aboriginal critical incidents

Objectives

• 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.

Stages

• The framework recognizes three stages of conflict: pre incident, incident and post incident.

• 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.

Police discretion

• 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 maintain or restore peace, order and security.

• The use of force is always a last resort. 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.