Simon's Megalomaniacal Legal Resources

Indigenous - Indian Act

. Hiawatha First Nation v. Cowie

In Hiawatha First Nation v. Cowie (Ont CA, 2023) the Court of Appeal considered, and allowed, an appeal against a permanent injunction obtained by a native band council against further development of a gas station - pending completion of a 'Land Code and Comprehensive Community Plan'.

In these quotes the court considers the different legal effects of an Indian Act band 'by-law' as opposed to a 'resolution':

[7] On July 17, 2019, Hiawatha First Nation passed BCR 21/19. As the application judge explained, the Resolution imposed “a moratorium on the creation of all new businesses without council’s approval (to be given in extraordinary circumstances only), to allow [Hiawatha First Nation] to complete its Land Code and Comprehensive Community Plan.”

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D. THE APPLICATION JUDGE’S REASONS

[15] The application judge rejected the appellants’ argument that BCR 21/19, which provides for a moratorium on the creation of all new businesses, did not have the force of law. The appellants argued that Hiawatha First Nation’s zoning authority under s. 81(1)(g) of the Indian Act may only be exercised by passing a by-law, and not by passing a resolution. The application judge found that Hiawatha First Nation Band Council had the power under s. 81(1)(g) of the Act to regulate the carrying on of businesses on the reserve and that BCR 21/19 was passed in accordance with s. 2(3)(b) of the Act by a majority of the councillors. He held that the BCR could be considered a by-law enforceable under s. 81(3). He found that the distinction argued by the respondent between resolution and by-law was “too rigid”. In his view, to “hold otherwise would be to allow form to triumph over substance.”

[16] The application judge found that the only basis on which the appellants were not entitled to proceed with the project was BCR 21/19. He noted that the purpose of the resolution was to temporarily freeze development pending finalization of the Hiawatha First Nation Land Code – which has now been completed and is in effect. He said: “As the Land Code has since been finalized and is now in effect, the proponents should be entitled to proceed with their project, provided that they comply with the Code and relevant by-laws”, assuming they were capable of doing so.

[17] In view of the state of the project and the prospect that it could be completed, the application judge declined to require the appellants to “remove the tanks and the added fill and restore the property to its original condition.” He thought “they should be given a reasonable opportunity to establish their entitlement to proceed.”

[18] The application judge ordered that the appellants be restrained from continuing work on the gas station for as long as the moratorium imposed by BCR 21/19 remains in effect and thereafter until they comply with all applicable law. He dismissed Hiawatha’s cross-application.

E. ANALYSIS

[19] It is common ground that s. 81(1) of the Indian Act authorizes Hiawatha First Nation Band Council to enact by-laws governing certain subject matters. The relevant excerpts are these:

81 (1) The council of a band may make by-laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, for any or all of the following purposes, namely,

(g) the dividing of the reserve or a portion thereof into zones and the prohibition of the construction or maintenance of any class of buildings or the carrying on of any class of business, trade or calling in any zone;

(h) the regulation of the construction, repair and use of buildings, whether owned by the band or by individual members of the band;

[20] The appellants argue, as noted, that BCR 21/19 was only a resolution, not a by-law. As such it was no more than “simply the expression of the will of a First Nation’s council” as Grammond J. stated in Knibb Developments Ltd. v. Siksika Nation, 2021 FC 1214, at para. 10.

[21] The appellants submit that a band council’s authority under s. 81 of the Indian Act can only be exercised by passing a by-law. Accordingly, the application judge was not correct in stating that BCR 21/19 could be construed as a by-law. They assert that because the resolution is not a by-law under the Indian Act, there was no authority by which the application judge could have continued the injunction. They add that success on this ground would have implications for the application judge’s costs decision.

[22] The respondent argues that BCR 21/19 was the functional equivalent of a by-law and eligible to be enforced as such.

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[60] A band council’s passage of a by-law is an act of law-making within carefully defined areas of jurisdiction, and a by-law has the force of law on the reserve under the Indian Act. As Grammond J. noted in Knibb Developments: “a by-law is an act of a governmental body that creates rules binding on all persons or a category of persons under the jurisdiction of that body.” It is plainly intended to elevate the exercise of law-making authority.

[61] By contrast, the passage of a resolution by a band council is an expression of the band council’s will that cannot create rights and duties for band members or others, and does not have the force of a by-law.

[62] It must also be noted that this case involves potential legal interference with rights, i.e., proprietary rights. The distinction between a by-law and a resolution is all the more consistent with maintaining a high standard for substantiating such a legal interference. A band council resolution can bind the band council itself. A by‑law can bind others.

[63] The contrast between a band council resolution, a by-law under the Indian Act, and a First Nation’s law under its Land Code discloses scaling requirements for exercising governance powers. This illustrates that the evolution towards self-government carries with it an emphasis on legality and its necessary concomitants – careful attention to formality and process.

[64] The fact that a band council might have publicized a resolution as it would a by-law does not have the effect of converting a resolution into a by-law, even if the subject matter of the resolution might have been properly embodied in a by-law. The presence of only some badges of a by-law is insufficient. Hiawatha First Nation Band Council was well familiar with both by-laws and resolutions, as was noted in argument, having passed both. That it chose not to enforce the moratorium by means of a by-law must itself be respected as its own governance choice, as was the case in Gambin.

[65] To conclude, a First Nation band council’s passage of a by-law under the Indian Act is a serious act of law-making and must follow the rules of law-making in the Act in order to secure the legal weight of enforcement. Hiawatha First Nation Council Resolution 21/19 was not a by-law under the Indian Act either in form or in substance. Consequently, the application judge erred in enforcing it by continuing the injunction.

At paras 30-50 the court considers the history of resolutions and bylaws, and their distinct difference.

. Bogue v. Miracle

In Bogue v. Miracle (Ont CA, 2022) the Court of Appeal considers the interaction between provisions of the Indian Act that prohibit seizure of native assets and a receivership order made under CJA 101.