Indian Act By-Laws: A Viable Means for First Nations to (Re)Assert Control Over Local Matters Now and Not Later

Abstract

Section 81 in the Indian Act, RSC 1985, c I-5, contains a broad range of subject matters over which Band Councils may pass by-laws. To date, this provision has been underutilized by most First Nation governments. One of the main reasons for this relates to the fact that, for over a hundred years, the Indian Act gave the federal government the power to disallow any such by-laws and Canada historically took a narrow view of the expanse of the Section 81 by-law powers and exercised its disallowance power broadly. Recent amendments to the Indian Act, however, have repealed this disallowance power, giving Bands greater freedom to pass by-laws. Nonetheless, the validity of such by-laws will continue to be subject to review by the courts. This paper explores the modern interpretation and constitutional principles that will inform the determination of validity of such by-laws and concludes that such principles mandate that the by-law powers should be interpreted expansively and include First Nation jurisdiction over local matters on reserve, including the provision of essential services. The author argues that First Nations should seriously explore using the Indian Act by-laws in the manner proposed, even though such bylaws have often been denigrated as only a ‘delegated’ and not an inherent form of self-government jurisdiction. This is so because of the slow pace of self-government negotiations and the urgent need for change in the manner in which key essential services are currently provided on First Nations reserves.

Keywords: First Nations, By-Laws, Self-Government, Governance