Canada: Court Recognizes Greater Legal Weight Of First Nations' Bylaws, As Compared To Band Council Resolutions

Trial court issues injunction for construction of gas station based on BCR

The Court's decision in Hiawatha was based on the interpretation of s. 81(1)(g) of the Indian Act, which, among other things, authorizes Band Councils to enact bylaws related to zoning and the construction or carrying on of business on reserve lands.

In July 2019, the Hiawatha First Nation Band Council passed a BCR imposing a moratorium on the creation of new businesses and the expansion of existing businesses on reserve, without Council's prior approval. The following month, Council became aware of a new gas station being constructed on lands held by three of its band members. Council took the position that the construction was unlawful as it violated its July 2019 BCR, and sought an injunction prohibiting any further construction.

In granting the injunction, the Ontario Superior Court held that the Hiawatha BCR was, in substance, equivalent to a bylaw enacted under the Indian Act and could be enforced as such, including by way of injunction.

Ontario Court of Appeal finds BCR cannot bind other persons – only a bylaw can

On appeal, the Ontario Court of Appeal (ONCA) was faced with the issue of whether the Hiawatha BCR was, in substance and legal effect, a bylaw.

The ONCA disagreed with the lower court's finding that the difference between the Hiawatha BCR and a bylaw was effectively a matter of form (in this case, whether the document setting out the Hiawatha BCR was titled "resolution" or "bylaw").

In interpreting s. 81(1)(g) of the Indian Act, the ONCA found that the enactment of a by-law by a Band Council is a solemn act of law-making and therefore must follow the rules of law-making prescribed in the Act, which requires publication and the provision of access to bylaws upon request. The Court found that the presence of only some 'badges' of a by-law is insufficient to elevate a BCR to the status of bylaw, and that the potential legal effects of First Nations' bylaws supported a stricter reading of what can constitute a bylaw under the Indian Act. The Court found that this was all the more important in the circumstances given that the Hiawatha BCR involved interference with property rights.

In differentiating the two legal instruments – i.e., (i) a BCR, and (ii) a bylaw enacted under the Indian Act – the Court described BCRs as an expression of the Band Council's will that cannot create rights and duties for band members or others, while a bylaw, in the Court's view, consists of an act of a governmental body that creates rules binding other persons. In other words, a BCR can bind a Band Council itself, while a bylaw can also bind others.

Given the corresponding enforcement implications, it is critical for First Nations' leadership to carefully consider and use the correct tool when exercising their governance authority over their reserve lands, to ensure they can enforce their decisions.

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