Governance By-law Workshop: Session 3

Appropriate Authorities
in the Indian Act for the Enactment of By-Laws

This session is designed to provide guidance to Band Councils, their advisors, enforcement officers and departmental staff regarding the scope of the by-law making authorities contained in sections 81 and 85.1 of the Indian Act.

3.1 SECTION 81 - GENERAL POWERS

Each paragraph of section 81 is analysed in an effort to describe what may be legally included in each of the powers granted to Band Councils. Where appropriate, other applicable legislation is mentioned. The following examination of items included in each paragraph is not exhaustive but is intended to serve as general guidance only.

We have attempted to list the most common subject-areas covered by section 81. But each case is a test case. If you are encountering problems of a specific nature in your community, you should discuss them with your local policing agency and departmental staff. We strongly encourage creativity. A combination of the powers granted pursuant to section 81 may be the solution. Before enacting by-laws in “grey areas”, we recommend that you send draft by-laws to the department, where by-law advisors can provide comments back to you for your consideration.

These comments will be provided in the context of the most recent legal developments.

3.1.1 PARAGRAPH 81(1) (a) - HEALTH

This paragraph provides that by-laws can be passed to provide for the health of residents on the reserve and to prevent the spreading of contagious and infectious diseases.

Suggested items covered by (a):

  • Pest and animal control

  • Control of dogs running at large

  • Regulation of dogs' behaviour (e.g. persistent barking, scattering of garbage)

  • Control of dogs (e.g. fencing, muzzling)

  • Fees for licences: reasonable fees

  • Impounding of and the procedure to claim animals

  • Destruction of animals after notice to the owner when not claimed

  • Destruction of animals for humane reasons without notice to the owner, e.g. diseased animals, rabies (NB The Criminal Code deals with the unlawful destruction of animals.)

  • Solvent Abuse

  • Garbage disposal (subject to the Indian Reserve Waste Disposal Regulations, C.R.C. 1978, c 955)

  • Health hazards, immunization and quarantine

  • Contamination of water works or water courses originating on the reserve as they relate to contagious and infectious diseases

  • Smoking in buildings (as a health hazard)

  • Administration of health services and programs, i.e. where health services have been

  • transferred to the Band from Health Canada

Bear in mind that the scope of the power regarding health is limited by the Indian Reserve Waste Disposal Regulations made under the authority of section 73 of the Indian Act. These regulations deal with the disposal and storage of waste on reserve and make these activities dependent upon the issuance of a permit by the Minister. In interpreting paragraph (a), particularly as it relates to waste disposal, it should be recognized that these regulations exist and would supersede any Band by-laws.

Paragraph (a) does not provide Band Councils with the authority to make by-laws regarding social services. The Constitution Act, 1867 gives provincial governments exclusive jurisdiction over social services.

3.1.2 PARAGRAPH 81(1) (b) - TRAFFIC

This paragraph provides for the making of by-laws for the regulation of traffic.

Suggested items covered by (b):

  • Use of all terrain vehicles

  • Use of motor vehicles

  • Use of snowmobiles

  • Weight restrictions

  • Parking

  • Rules of the road

  • Riding bicycles on roads

  • Traffic control devices and equipment

  • Speed limits

It is now settled law that provincial highway traffic laws apply on reserve. These laws are largely contained in the various provincial "highway traffic acts". Other statutes which impact on traffic and which may be of importance on reserve include those dealing with mandatory insurance and those dealing with uninsured or underinsured motorists.

Although provincial traffic laws apply on reserve, most of the provisions of provincial traffic legislation regulate conduct only where it occurs on a "highway" as defined in that legislation. In other words, if a particular road on a reserve cannot be characterized as a "highway" within the meaning of the relevant highway traffic act, then those sections of that act which create offenses on "highways" will not apply.

Whether or not a particular road is a "highway" within the meaning of the relevant highway traffic act is a question of fact to be determined in each case according to the wording of the definition in the act. All of the definitions of "highway" in provincial highway traffic acts are circumscribed by the following (or similar) words: "...designed and intended for or used by the general public for the passage of vehicles". Virtually all of the cases turn on an interpretation of these words, and generally the question is whether or not the road in question is "used or intended for use by the general public".

The courts have generally held that provincial laws dealing with insurance and licensing are not applicable to "private roads" on the reserve because those roads do not fall within the definition of "highway" contained in the relevant provincial laws. Private roads are maintained by the band and access is restricted whereas highways are open to the public in general.

It should be noted that paragraph (b) does not appear to give Band Councils the authority to issue drivers' licenses.

3.1.3 PARAGRAPH 81(1) (c) - LAW AND ORDER

This paragraph provides authority for the enactment of by-laws for the observance of law and order. There are severe jurisdictional limits upon the use of this paragraph; it appears to relate more to the administration and enforcement of law and order than to the making of laws to impose specific rules of behaviour. A court may not see it as extending to Band Councils the power to regulate matters already covered in other laws applying on reserves, for example, matters dealt with in the Criminal Code as aspects of criminal law.

Paragraph (c) arguably gives a Band Council the authority to appoint by-law enforcement officers, and confers authority on other officers to enforce band by-laws.

It is unlikely that (c) provides authority for a separate court system. It would appear that more specific language would be required before a court would find such a Parliamentary intent within the language of paragraph (c).

Suggested items covered by (c):

  • Curfew

    • Although not clearly within the scope of section 81, because they are of a purely local nature, curfew by-laws are allowed to come into force.

    • On a strict reading of section 81, it is possible that a court could find that a Band Council does not have the authority to legislate regarding curfew. However, our position is that the legal and policy arguments in favour of curfew by-laws are sufficient for the Minister to allow such by-laws to come into force. In other words, we will not recommend that the Minister exercise his power of disallowance under subsection 82(2) simply because curfew is not a specific category under section 81. Accordingly, a challenge to the council's authority to pass a curfew by-law would have to made by an accused in a court of law.

    • Curfew by-laws in general may contravene the Canadian Charter of Rights and Freedoms (the Charter), more specifically the right guaranteed by section 15 to the "... equal protection and equal benefit of the law without discrimination based on ... age". The band should be aware that such a by-law could be challenged by an accused on the basis that it contravenes the Charter.


  • Appointment of by-law enforcement officers

  • Fire Controls: although not necessarily considered to be within the scope of section 81, because they are of a local nature, by-laws dealing with this subject are allowed to stand.

  • Regulation of public meetings, gatherings, and demonstrations

  • Agreements with surrounding municipalities for fire protection

3.1.4 PARAGRAPH 81(1) (d) - DISORDERLY CONDUCT AND NUISANCE

This paragraph permits the passing of by-laws for the prevention of disorderly conduct and nuisances. It is usually used in tandem with paragraph (c). The wording of the paragraph seems to permit a wide range of possibilities.

Suggested items covered by (d):

  • Regulation of burning (grass fires, tires, garbage)

  • Prohibition of the obstruction of passages

  • Regulation of the use of dangerous materials

  • Regulation of noise

  • Abandonment of cars

  • Air and water pollution

The Criminal Code also prohibits certain conduct that creates a disturbance or that amounts to a public nuisance, and it is extremely difficult to differentiate between the scope of paragraph (d) and those Criminal Code provisions. The fact that the Criminal Code also deals with such matters does not prevent a Band Council from exercising authority under paragraph (d), as long as the provisions of the by-law do not come into conflict with the Criminal Code. A conflict does not exist simply because there is overlap between the by-law and the Criminal Code; in such circumstances, enforcement officers have the discretion to lay a charge under either law.

3.1.5 PARAGRAPH 81(1) (e) - TRESPASS OF CATTLE

Paragraph 81(1)(e) provides that by-laws may be made for the protection against and prevention of trespass by cattle and other domestic animals, the establishment of pounds, the appointment of pound-keepers, the regulation of their duties and the provision for fees and charges for their services. This paragraph [in tandem with paragraph (a) respecting the health of residents on reserve and paragraph (d) dealing with nuisances] is also used to regulate the behaviour of dogs.

Suggested items covered by (e):

  • Regulation and control of stray cattle, horses, sheep

  • Fencing requirements and obligations

  • Impounding of cattle

3.1.6 PARAGRAPH 81(1) (f) - LOCAL WORKS

This paragraph permits the enactment of by-laws to construct and maintain watercourses, roads, bridges, ditches, fences and other local works. It should be read in conjunction with paragraph (l) below.

Suggested items covered by (f):

  • Public water and sewage services

  • Sanitation services

  • Type and height of fences and boundary fences

  • Illumination of streets and lands

  • Electric power system: its financing, the area in which it is to apply, the levying of a fee for its use

  • Road and bridge construction and maintenance

  • Drainage

3.1.7 PARAGRAPH 81(1) (g) - ZONING

This paragraph provides that a by-law may be made to divide the reserve or a portion thereof into zones and to prohibit the construction or maintenance of any class of buildings or the carrying on of any class of business, trade or calling in any such zone.

Suggested items covered by (g):

  • Land use control

  • Determination of commercial, residential, industrial, institutional and conservation zones

  • Cottage sites

  • Protection of forests

  • Campsites, including setting fees for campsites

It has been held by the courts that, when exercising this authority, the reserve must first be divided into zones before the construction of any buildings or the carrying on of any type of business can be prohibited in a particular area on the reserve. It has further been held that it is not an excessive use of the council's authority under section 81 to create, by by-law, one zone applicable to all reserve lands and to prohibit all classes of construction within that zone without first obtaining a permit.

A zoning by-law regulates the use of land and establishes the standards according to which land can be developed. All lands within a reserve can be placed into a specific zone according to a Zoning Map.

Since a zoning by-law may be controversial within the community, it may be advisable for the council to hold a general meeting of the membership to review the by-law before adopting it.

It is also advisable for Band Councils to hire a land use planner or a lawyer specializing in land use planning. It is possible that the band may wish to have a "community plan" (also known as an "official plan"). A community plan contains objectives and policies established primarily to provide guidance for the physical development of the reserve.

A person who violates a zoning by-law may be charged by the Zoning Administrator and may be liable on summary conviction to a fine not exceeding $1,000 or to imprisonment not exceeding thirty days, or to both. In addition, an injunction may be obtained under Section 81(2) or (3) of the Indian Act to prohibit the continuation or repetition of the illegal use under the Zoning Bylaw.

3.1.8 PARAGRAPH 81(1) (h) - BUILDINGS

This paragraph provides for the passing of by-laws for the regulation of the construction, repair and use of buildings, whether owned by the band or by individual members of the band.

Suggested items covered by (h):

  • Property maintenance standards

  • Occupancy standards

  • Obligation to keep houses in good repair

  • Pest prevention (cockroaches, ants, termites, etc.)

  • Fire resistance rating: has to comply with the National Building Code

  • Thermal insulation: has to comply with the National Building Code

  • Building standards: has to comply with the National Building Code

  • Building standards for cottages

  • Requirements for smoke detectors

It should be noted that a by-law regulating the construction or repair of buildings must comply with the National Building Code. The Provincial Building Codes may be applicable (see Corporation of the Township of Brantford v. Doctor [1996] 1C.N.L.R. 49 Ont. Ct of Justice - General Division).

A building by-law must be read in conjunction with any existing zoning by-law. Before a building inspector can issue a permit under the building by-law, the zoning by-law must be complied with as to the use of the proposed building.

3.1.9 PARAGRAPH 81(1) (i) - LAND SURVEY

This paragraph provides that by-laws may be made for the survey and allotment of reserve lands among band members, the establishment of a register of Certificates of Possession and Certificates of Occupation relating to allotments, and the setting apart of reserve lands for common use, if authority for managing these functions has been granted by the Governor-in-Council under section 60 of the Indian Act.

It must be noted that this by-law making power is only available to those bands that have obtained the authority to control and manage their lands under section 60 of the Act.

Suggested items covered by (i):

  • Allotment of lands for a community centre, churches, schools, stores (see subsection 18(2) of the Act), etc.

  • Allotment of lands to band members (see section 20 of the Act)

3.1.10 PARAGRAPH 81(1) (j) - NOXIOUS WEEDS

This paragraph provides for by-laws for the destruction and control of noxious weeds. These types of by-laws can be extremely important for ensuring that people control the growth of weeds on their lands. Unattended weeds may affect the value of farm crops. It is recommended that, when drafting a noxious weed by-law, the Band Council consult the relevant provincial legislation on this subject.

Suggested items covered by (j):

  • Control the spreading of noxious weeds

  • Provide for the cutting of noxious weeds

  • Prevent the growth of noxious weeds

  • Regulate the use of chemical products to control noxious weeds

  • Authorize searches for noxious weeds by by-law enforcement officers (using paragraph (q) in tandem with this paragraph)

  • Notice to the occupiers of land to destroy noxious weeds

  • Provide for the cleaning of any vehicle or machine used to process noxious weeds in order to prevent their spreading

3.1.11 PARAGRAPH 81(1) (k) - BEES AND POULTRY

This paragraph deals with the regulation of bee-keeping and poultry raising.

It is important to note that the authority to regulate an activity assumes the right to carry on that activity. Accordingly, a by-law passed under this paragraph may not prohibit, or ban, these activities. The by-law may, however, prohibit certain practices that persons in the business of bee-keeping and poultry raising might engage in, if those practices are considered to be improper or to jeopardize the interests of the band or the residents of the reserve.

3.1.12 PARAGRAPH 81(1) (l) - WATER SUPPLIES

This paragraph provides authority for by-laws concerning the construction and regulation of the use of public wells, cisterns, reservoirs and other water supplies. It appears to be related to paragraph (f) and gives a Band Council the authority to regulate the construction and use of public sources of water supply. This would extend to regulating the connection of private uses to public water supplies, including providing for payment for use.

Suggested items covered by (l):

  • Location of public wells, cisterns and reservoirs

  • Building standards

  • Supply of water

  • Regulation of the use of water on a domestic, industrial, and commercial basis

  • Establishment of user fees

It is suggested that this paragraph should not be used to deal with the pollution of water supplies. A better approach would be to use a zoning by-law to prohibit certain activities in a given area for the purpose of protecting the environment in that area, e.g., prohibiting the use of pesticides near a water supply area.

3.1.13 PARAGRAPH 81(1) (m) - PUBLIC GAMES

This paragraph provides for the enacting of by-laws to control and prohibit games, sports, races, athletic contests and other amusements.

The main power claimed by bands under this paragraph is the regulation of bingos and lotteries. However, it has been held that paragraph (m) cannot be construed so as to permit the control of lottery schemes, games of chance or any form of gambling.

Gambling activities in Canada are regulated as criminal law by the Criminal Code. Since June of 1985, the provincial governments have had exclusive licensing power over lottery schemes, within the restrictions imposed by the Criminal Code. The Supreme Court of Canada has held that the section of the Criminal Code that recognizes that the provinces have this power is not an unconstitutional delegation of federal authority.

Suggested items covered by (m):

  • Regulation of hours of business, safety standards, etc. for pool rooms, dance halls, electronic arcades (it should be noted that the licensing of these businesses would require a by-law enacted under the authority of subparagraph 83(1)(a.1) of the Act, which provides for by-laws for the licensing of businesses, callings, trades and occupations)

  • Prohibition of concerts, musical exhibitions or other gatherings

3.1.14 PARAGRAPH 81(1) (n) - HAWKERS AND PEDDLERS

Paragraph 81(1)(n) provides for the making of by-laws regulating hawkers and peddlers or others who enter the reserve to buy, sell or otherwise deal in wares and merchandise.

This appears to be directed to the regulation of the activities of itinerant or travelling salespeople. Pursuant to this authority, Band Councils may only regulate the activities of these individuals; they may not attempt to prohibit, or ban them, altogether. This is because the power to regulate has been held by the courts not to include the power to prohibit. Regulation assumes the continued existence of the activity to be regulated.

Suggested items covered by (n):

  • Submission of an application to the council in order to obtain a permit

  • Establishment of a fee

  • Hours and days of business

  • Type of kiosks

  • Type of advertisement

3.1.15 PARAGRAPH 81(1)(o) - WILDLIFE

This paragraph provides that by-laws can be passed for the preservation, protection and management of fur-bearing animals, fish and other game on the reserve.

Controversies arise regarding this subject, not only because of the scope of many wildlife by-laws, but also because of conflicting federal and provincial legislation.

Please note that the essential element of this power is to protect wildlife, fish and game. It is essential that the by-law demonstrates reasonable measures of such protection. It is important to appreciate that the scope of this section is narrower than federal and provincial laws regulating game, hunting and fishing practices. Hunting, fishing and trapping should be regulated pursuant to this section as necessary elements of the "preservation, protection and management" of furbearing animals, fish and game. They should not be regulated as activities themselves.

This authority is subject to federal laws, such as the Migratory Birds Convention Act, R.S.C. 1985, c. M-7 and the federal Fisheries Act, R.S.C. 1985, c. F-14. However, some case law has held that by-laws, as specific legislation, will apply over the more general regulations passed pursuant to federal legislation, i.e. regulations passed under the federal Fisheries Act. In addition, by-laws regulating hunting and trapping on reserve will override provincial game laws that are inconsistent. On the other hand, in the absence of a by-law, provincial game laws will apply on reserve.

A Band Council's by-law authority is limited to the reserve and to waters on the reserve. Its authority does not extend to regulating commercial activities related to fish and game once taken from the reserve, but it may be in a position to prohibit hunting and fishing for commercial purposes, this being an aspect of conservation.

Suggested items covered by (o):

  • Provide for a nature preservation area

  • Provide for hunting or fishing seasons

  • Regulate, protect and manage the environment as it relates to habitat for wildlife

  • Issuance of permits to non-band members for hunting and fishing in accordance with criteria set out in the by-law (obtaining a permit can be conditional on possessing a provincial hunting or fishing license)

  • Provide for fees and the criteria for such fees

  • Fish cultivation on a small scale

  • Safe hunting and fishing

3.1.16 PARAGRAPH 81(1) (p) - REMOVAL OF TRESPASSERS

Pursuant to this paragraph, Band Councils may make by-laws for the removal and punishment of persons trespassing upon the reserve or frequenting the reserve for prohibited purposes.

The Indian Act does not define "trespassing", so the common law must be looked at for a definition of this term. At common law, trespass involves entering upon another's land without lawful justification. The powers of a Band Council pursuant to paragraph 81(1)(p) are not to decide what constitutes trespassing, but are limited to removing and punishing trespassers.

In addition, section 30 of the Act makes it an offence for a person to trespass on a reserve, and prescribes a penalty that is less severe than the penalty a Band Council is able to set for a violation of a by-law under paragraph 81(1)(r). If a Band Council, in a by-law enacted pursuant to paragraph (p), were to make it an offence to trespass on a reserve, this would create a conflict with section 30 of the Act. Therefore, the offence under the by-law occurs when a trespasser or a person frequenting the reserve for a prohibited purpose fails or refuses to leave the reserve when ordered to do so, or when a person resists or interferes with an officer who is lawfully removing someone from the reserve.

When removing a trespasser or a person frequenting the reserve for a prohibited purpose, the officer may use only as much force as is reasonably necessary.

You will note that paragraph 81(1)(p) deals with two separate situations:

  1. Trespassers;

  2. Persons who frequent the reserve for prohibited purposes.

These are two distinct concepts, and Band Councils should be aware of the differences between them in order to avoid potential enforcement problems.

Trespass

Trespass basically means being on a reserve without lawful justification or excuse. The words "without lawful justification" mean that there is in law no just or lawful excuse or reason for entering upon or being on the reserve. It is a question of fact whether a person is or is not a trespasser. Generally speaking, visitors on a reserve, who have been invited (whether specifically or under a general invitation to the public) to come onto the reserve by a resident or by someone who is conducting business on the reserve, would not be considered to be persons entering the reserve without lawful justification. They would, however, become trespassers if they remained on the reserve after their invitation had elapsed.

A resident of the community cannot be a trespasser on the reserve. In addition, if membership is lawful justification, and only a court of law can determine if this is the case, then a band member could not be removed from the reserve as a trespasser, regardless of his or her usual place of residence.

Frequenting the reserve for a prohibited purpose

There are two aspects to consider: "frequenting" and "for a prohibited purpose". These will be dealt with separately.

"frequenting"

- It would appear that a person who lawfully resides on reserve cannot be said to be "frequenting the reserve", within the meaning of paragraph 81(p) of the Indian Act. Thus, any attempt to remove a lawful resident may be illegal, even if the resident in question is a non-member. On the other hand, it may be possible to remove a non-resident band member who is engaged in prohibited conduct.

"for a prohibited purpose"

- A prohibited purpose is a purpose prohibited by law. The law could be a by-law or any other law applicable on the reserve. For instance, the Controlled Drugs and Substances Act prohibits the sale of certain drugs; therefore if a person comes onto the reserve for the purpose of selling prohibited drugs, that person might be frequenting the reserve for a prohibited purpose. It should be noted that it may be possible for a person to frequent the reserve for a prohibited purpose without being a trespasser, e.g. where a person invited onto the reserve by a resident sells drugs that are prohibited by the Controlled Drugs and Substances Act.

  • ISSUES:
    • Can Band Members be Trespassers?
    • Can Residents Trespass on the CP Land of Another Resident?
    • Can A Non-Band member married to a Band member be a trespasser?

3.1.17 PARAGRAPH 81(1) (p.1) - RESIDENCY

This paragraph states that by-laws may be made for the purpose of the residence of band members and other persons on the reserve. There is considerable debate about the meaning and scope of paragraph (p.1). It appears to be broad enough to allow Band Councils to prescribe rules for determining who is entitled, and who is not entitled, to reside on a reserve.

  • ISSUES:
    • Is Residency a Right or a Privilege?
    • Does a Spouse automatically gain the right to reside?

It is our view that paragraph 81(1)(p.1) provides Band Councils with the authority to address matters such as:

  • establishing a scheme whereby individuals seeking to reside on reserve would be required to apply for, and obtain, residency permits

  • the issuance of temporary or permanent residency permits in accordance with criteria stipulated in the by-law

  • procedures for reviewing applications for residency

  • criteria for the renewal or revocation of permits

  • appeal mechanisms when permits are denied or revoked

When drafting a residency by-law, efforts should be made to comply with section 7 of the Canadian Charter of Rights and Freedoms and the principles of natural justice. It is suggested that, where a by-law deals with an issue as sensitive as who may or may not reside on the reserve, the Band Council should attempt to incorporate into the by-law principles of natural justice, such as notice requirements and the requirement for a hearing before rendering a decision on a residency application.

Any powers provided to the Band Council in a residency by-law can not be used to infringe upon any residency rights that an individual may have arising from the Indian Act. In this regard, section 18.1, 20, 24, 28 and subsection 58(3) of the Act should be reviewed. Individuals who are entitled to reside on the reserve pursuant to the Indian Act should be specifically exempted from the operation of the by-law.

3.1.18 PARAGRAPH 81(1) (p.2) - RIGHTS OF SPOUSES AND CHILDREN

This paragraph states that Band Councils may make by-laws to provide for the rights of spouses and children who reside with members of the band on the reserve with respect to any matter in relation to which the council may make by-laws affecting band members.

Under paragraph 81(1)(p.2), a Band Council may determine how other by-laws are to be interpreted in relation to the spouses and children of members. It would not, however, authorize a Band Council to extend membership to spouses and children.

Items covered under (p.2):

  • Residency

  • Participation in the political life of the band, e.g. giving the non-member spouses of band members the right to participate in meetings

3.1.19 PARAGRAPH 81(1) (p.3) - CAPITAL AND REVENUE MONIES

Authorizes the Minister to make payments out of capital or revenue monies to persons whose names were deleted from the band list. A by-law enacted under this paragraph must be applied in conjunction with sections 64 (dealing with the expenditure of capital moneys) and 66 (dealing with the expenditure of revenue moneys) of the Indian Act.

  • Must apply to all members

  • General by-law with objective criteria establishing the amount payable

3.1.20 PARAGRAPH 81(1) (p.4) - SECTIONS 10(3) AND 64.1(2)

This paragraph is used to bring subsections 10(3) or 64.1(2) into effect with respect to the band. It therefore deals with two completely separate matters:

  1. It gives the council authority to extend the voting right on membership rules to non-resident band members.

  2. It also gives the council authority to pass a by-law requiring individuals who have previously received a share of a band fund to reimburse money received in excess of $1,000 before they can use services financed under sections 64, 66 and 69 of the Indian Act.

3.1.21 PARAGRAPH 81(1) (q) - ANCILLARY POWERS

This paragraph gives the authority to make by-laws with respect to any matter arising out of or ancillary to the exercise of powers under section 81.

This provision may cover matters such as appointing by-law enforcement officers, establishing user fees and providing for hearings and appeals in residency and zoning by-laws.

Every section 81 by-law should include a statement that paragraph (q) is part of the authority for the by-law.

3.1.22 PARAGRAPH 81(1) (r) - PENALTY PROVISIONS

This paragraph permits the imposition on summary conviction of a fine not exceeding one thousand dollars or imprisonment for a term not exceeding thirty days or both, for the violation of a by-law made under section 81.

The setting of penalties in a by-law is a matter of policy for the Band Council to determine. In certain instances, Band Councils may determine that the maximum penalties permitted by paragraph 81(1)(r) are not appropriate, as the offenses in question do not warrant this sanction.

As well, where a by-law regulates civil matters, a penalty which will be enforced by means of a summary conviction proceeding in the provincial courts may not be appropriate. In such cases, the Band Council has the authority to set a lesser penalty than that permitted by the Act.

However, it should be noted that the penalty may not exceed the maximum provided for in paragraph 81(1)(r), i.e. $1,000 and/or 30 days imprisonment. In addition, the Band Council is not able to set a minimum penalty.

For example:

  • by-law enacted to regulate the destruction and control of noxious weeds (81(1)(j)) may be enforced by the imposition on summary conviction of a fine not exceeding $100.00.

  • On the other hand, the Band Council may not provide for a minimum fine of $100.00 for the breach of the by-law.

You should ensure that

  • every by-law passed under the authority of section 81 contains a penalty provision and

  • the recitals of every section 81 by-law should include a statement that paragraph (r) is part of the authority for the by-law.

3.2 SECTION 83 - MONEY BY-LAWS

Section 83 of the Act provides authority for by-laws dealing with matters such as property taxation, the expenditure of band moneys and business licensing. Bill C-115, known as the Kamloops Amendment, expanded the taxation powers of Band Councils to all interests in reserve and designated lands (surrendered for lease). For information regarding money by-laws, you should contact the Indian Taxation Advisory Board (ITAB) at the following address:

Indian Taxation Advisory Board  
2nd Floor
90 Elgin Street
OTTAWA ON K1A 0H4

3.3 SECTION 85.1 - INTOXICANT BY-LAWS

In Bill C-31, section 85.1 was added to the Indian Act, giving Band Councils the authority to make by-laws prohibiting the sale, use and possession of intoxicants on reserve.

In the absence of a section 85.1 intoxicant by-law, provincial laws regulating the sale and use of liquor apply on reserve. The Indian Act does not grant Band Councils full regulatory authority over liquor. Under section 85.1, bands are limited to three specific prohibitions:

  1. Prohibition against the sale, barter, supply or manufacture of intoxicants;

  2. Prohibition against being intoxicated; and

  3. Prohibition against the possession of intoxicants.

The council is also authorized to provide for exceptions to the prohibitions set out in paragraphs (b) and (c), but the exceptions should be clearly defined in the by-law. Examples of appropriate exceptions would be medicinal use or use for a domestic, business, commercial or other purpose that does not involve producing a state of intoxication in any person.

The Indian Act stipulates requirements for the enactment of a valid intoxicant by-law. These are:

  1. Before a Band Council can pass an intoxicant by-law, the by-law must first be assented to by a majority of the electors of the band who voted at a special meeting called for the purpose of considering the by-law; and

  2. Within four days after it has been passed by the Band Council, a copy of the by-law must be mailed to the Minister of Indian Affairs and Northern Development.

An intoxicant by-law comes into force as soon as it is passed by the Band Council.

The Minister has no disallowance power with respect to intoxicant by-laws; the department merely records these by-laws once they have been received. However, when a Band Council submits an intoxicant by-law to the department, it should attach an affidavit or BCR providing evidence that the procedural requirements have been met. Specifically, the affidavit, or BCR, should state that:

  1. special meeting of the electorate took place

  2. the date of the meeting;

  3. the number of members in attendance;

  4. the fact that a vote was taken; and

  5. the number of votes for and against the by-law.

The penalties for a breach of an intoxicant by-law are set out in section 85.1, and are as follows:

  1. for the sale, barter, supply or manufacture of intoxicants, a fine of not more than $1000.00 or 6 months in jail, or both; and

  2. for being intoxicated or possessing an intoxicant, a fine of not more than $100.00 or 3 months in jail, or both.