Changes to By-laws
The Indian Act Amendment and Replacement Act came into force on December 16, 2014. This new legislation amends and repeals various sections of the Indian Act, including provisions addressing the enactment and coming into force of band by-laws.
A First Nation or band by-law is a local law that is passed by a First Nation council, similar to a municipality, to regulate affairs within its community. A by-law governs the activity in question on all reserve lands under the control of the band council that passed the by-law. The by-law applies to everyone present on the reserve, regardless of whether they are a band member or whether they actually live on the reserve.
A by-law can only be enacted if it covers a subject that is within the powers provided to the council under the Indian Act, and there are some restrictions to what band councils can control through their by-laws. According to section 81 of the Indian Act, band councils may make by-laws providing they are not contrary to the Indian Act or the regulations enacted pursuant to section 73 of the Indian Act. In addition, a by-law may not be contrary to and/or conflict with other federal laws, such as the Criminal Code of Canada or the Controlled Drugs and Substances Act.
A by-law will not be enforceable and may be struck down in a court of law if it has not been properly enacted in accordance with the procedural requirements set out in the Indian Act.
Sections 81, 83, and 85.1 of the Indian Act provide the authorities for First Nation councils to pass by-laws:
This section deals with matters that are local in nature to the reserve, such as traffic control, residency, public health, nuisances and wildlife control. A by-law under section 81 can impose, on summary conviction, a fine not exceeding $1,000 or imprisonment for a term not exceeding 30 days, or both.
This section pertains to money matters, property taxation, expenditure of band moneys and business licensing. When a band council makes a by-law under this section, it must be explicitly approved by the Minister of Aboriginal Affairs and Northern Development. section 83 by-laws are reviewed by the First Nations Tax Commission which makes recommendations to the Minister.
This section deals with intoxicants: the prohibition of sale, supply, manufacture and possession of intoxicants, as well as the prohibition of public intoxication on reserve. These by-laws must be approved by a majority of the electors of the First Nation who voted at a special meeting of the band, called for that specific purpose.
Changes to the Indian Act Affecting By-laws
As of December 16, 2014, the new Indian Act Amendment and Replacement Act (the Act) amends and repeals various sections of the Indian Act, including provisions addressing the enactment and coming into force of band by-laws. The Act is consistent with the Government's approach of taking concrete, but incremental, steps to create the conditions for healthier, more self-sufficient First Nation communities.
Ministerial Oversight and Disallowance Powers
The Act removes the oversight and disallowance powers of the Minister of Aboriginal Affairs and Northern Development that existed under section 82 of the Indian Act. As such, First Nations are no longer required to forward copies to the Minister of by-laws made under section 81 of the Indian Act, within four days of their enactment, for review and for certification, and the Minister will no longer be able to disallow these by-laws.
Money and taxation by-laws made under section 83 of the Indian Act must still be approved by the Minister. The First Nations Tax Commission will continue its role in reviewing proposed by-laws and making recommendations to the Minister for approval.
Publication of Band By-laws
The Act requires that a band council publish by-laws on an internet site, in the First Nations Gazette or in a newspaper that has general circulation on the reserve, whichever the council considers appropriate in the circumstances. This publication requirement applies to all by-laws made under sections 81, 83 or 85.1 of the Indian Act. By-laws will only come into force upon their publication or on a later date specified in the by-law. Individuals will have access to all band by-laws that are enacted and brought into force after December 16, 2014, and these by-laws will remain accessible for the duration that they are in force. Band by-laws in force prior to December 16, 2014, remain in effect until they are amended or repealed, whether or not the by-laws are or have been published.
The Act removes the obstacles faced by First Nations in accessing fine moneys collected under the by-law provisions of the Indian Act. Instead of by-law fine moneys belonging to "[…] Her Majesty for the benefit of the band," the Act recognizes that fine moneys collected as a result of convictions under band by-laws belong to the particular First Nation, who will now be able to enter into agreements with local courts to recover these fines.
First Nations that enact by-laws related to intoxicants under section 85.1 are still required to obtain the consent of a majority of the electors of the band who voted at a special meeting called to consider the by-law.
The Act does not affect the enforcement of band by-laws enacted under section 81 and 85.1. Law enforcement, policing bodies or other enforcement officers remain responsible for policing the reserve and ensuring the enforcement of by-laws dealing with law and order, such as the prohibition of intoxicants, trespass, disorderly conduct, traffic and, at times, animal control.
The amendments to the Indian Act do not hamper the existing right of an individual charged with a by-law infraction to argue in the courts that the by-law infringes and/or conflicts with other legislation such as the Criminal Code or the Charter of Rights and Freedoms.
Clause 2 of the Act requires the Minister to report to the House of Commons Committee responsible for Aboriginal Affairs on the work undertaken by the department in collaboration with First Nations and other interested parties to develop new legislation to replace the Indian Act.
The Government is also making progress on other ways to move beyond the Indian Act, including initiatives such as the First Nations Lands Management Act, the First Nations Elections Act and the First Nations Financial Transparency Act which contribute to modern partnerships between the Government and First Nations.