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Indigenous - Internal Land Management. 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 development - pending completion of a 'Land Code and Comprehensive Community Plan'.
In these quotes the court considers internal indigenous land management, harkening to municipal law concepts:(d) Land management by First Nation bands
[51] The policy movement to greater autonomy for First Nations respecting reserve land has accelerated under successive initiatives now captured by the Framework Agreement on First Nation Land Management Act, S.C. 2022, c. 19, s. 121.[13] The preamble explains: “it is appropriate to enact a new implementation Act to replace the First Nations Land Management Act, S.C. 1999, c. 24, and to reflect the primacy of the Framework Agreement, while also ensuring the continuity with the previous legal framework.” The new Act contains an important paramountcy coupling between the Framework Agreement and the new Act, and between the new Act and any other federal law, which would include the Indian Act. It provides:6 (1) In the event of any inconsistency or conflict between the Framework Agreement and this Act, the Framework Agreement prevails to the extent of the inconsistency or conflict.
(2) In the event of any inconsistency or conflict between this Act and any other federal law, this Act prevails to the extent of the inconsistency or conflict. [52] The process under both the repealed legislation and the new Act involves the adoption of a Land Code, which enables a First Nation to enact “First Nation law” for the reserve, including with respect to zoning, development and subdivision control. Under the Framework Agreement, First Nations can make land and resource decisions under their Land Code instead of under the Indian Act. However, even with a Land Code, a band council is still empowered under s. 81 to adopt by-laws.
[53] The old Act, the new Act and the Framework Agreement are heavily prescriptive in legal terms while granting the First Nation considerable new powers over reserve land. Part IV of the Framework Agreement details law-making powers and how those laws are to be enforced. Section 18.1 provides:The council of a First Nation with a land code in force will have the power to make laws, in accordance with its land code, respecting the development, conservation, protection, management, use and possession of First Nation land and interests or land rights and licences in relation to that land. This includes laws on any matter necessary or ancillary to the making of laws in relation to First Nation land. [54] The operation of the Land Code escalates the law-making function beyond the by-law-making power under the Indian Act. However, in so doing, the Framework Agreement recommends (at s. 5.3(a)) that Land Codes prescribe specific conditions for the exercise of the First-Nation-law-making power (see Hiawatha First Nation Land Code, Part 5).
[55] As the legislative history of the Indian Act and cognate legislation shows, the law increasingly recognizes and empowers Indigenous self-government. The scheme still sets apart the role of by-laws from other band council duties. The legislation makes an important distinction between the band council acting, on the one hand, as law-maker and quasi-legislator, and the band council acting, on the other hand, as administrator of affairs on the reserve. . 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 development - pending completion of a 'Land Code and Comprehensive Community Plan'.
In this quote the court considers Indian Act 'certificates of possession' and the collective management of indigenous lands:[27] The Indian Act also sets up an internal tension, which is engaged in this case, between the power of a band to collectively govern and manage the disposition of lands on reserve, on the one hand, and, on the other hand, the proprietary rights of an individual band member who holds a certificate of possession.
[28] The nature of the proprietary interests conferred by a certificate of possession were explored by this court in Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565, 121 O.R. (3d) 561, and described in Louie v. Canada (Indigenous Services), 2021 FC 650, at para. 36:[I]t is useful to highlight two features of the Act, which are both related to the principle that a reserve is set apart for the collective benefit of members of a First Nation. First, pursuant to section 20 of the Act, the council of the First Nation may allocate parcels of land to individual members, who receive what is commonly known as a certificate of possession. Subject to the restrictions set out in the Act, a certificate of possession confers rights akin to private property: Brick Cartage Ltd v The Queen, [1965] Ex CR 102 at 106–107. It has been said that the First Nation’s interest in land subject to a certificate of possession “has disappeared or is at least suspended”: [Re Boyer and the Queen, 1986 CanLII 6863 (FCA), [1986] 2 F.C. 393 (C.A.)], at 404. [29] The rule of construction in favour of “Indian rights” and consistent with the underlying policies applies to the Indian Act, but how this is to be applied is case-specific, and depends on the relevant rights and interests, be they collective or proprietary.
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