Simon's Legal Resources

Statutory Interpretation - Indigenous

. 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 statutory interpretation of indigenous law, at least wrt to the Indian Act:

(b) The principles of statutory interpretation respecting the Indian Act

[26] The Supreme Court has stated that the interpretation of legislation with respect to Indigenous people is to be interpreted broadly and in their favour: see Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29; Mitchell v. Peguis Indian Band, 1990 CanLII 117 (SCC), [1990] 2 S.C.R. 85; Opetchesaht Indian Band v. Canada, 1997 CanLII 344 (SCC), [1997] 2 S.C.R. 119, at paras. 73-77. This purposive approach applies to the Indian Act: Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85, [2001] 3 S.C.R. 746, at para. 49, citing La Forest J. in Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, at p. 143:

[I]n the interpretation of any statutory enactment dealing with Indians, and particularly the Indian Act, it is appropriate to interpret in a broad manner provisions that are aimed at maintaining Indian rights, and to interpret narrowly provisions aimed at limiting or abrogating them.

He added that an interpretation purportedly favourable would not be automatically accepted and must remain coherent with the Indian Act’s scheme, at p. 143. There is not “automatic acceptance of a given construction simply because it may be expected that the Indians would favour it over any other competing interpretation.” He explained: “It is also necessary to reconcile any given interpretation with the policies the Act seeks to promote.”