This report originated as a request by the Mi’kmaq-Nova Scotia-Canada Tripartite Forum to research the challenges facing First Nations in Nova Scotia in assuming jurisdictional control through Indian Act by-laws. In undertaking this research, we identified significant uncertainty, misconceptions and confusion around Indian Act by-laws from all parties with a stake in this issue, including federal and provincial government representatives (Indigenous Services, Department of Justice, Public Safety), the police, the public and First Nations representatives. Consequently, we felt it necessary to comprehensively unpack the various issues relating to Indian Act by-laws, from their nature and legal effect, to their development, enforcement, adjudication and penalties. To our knowledge, this is an exercise that had yet to be undertaken.
Unlike earlier approaches to Indian Act by-laws, our analysis interprets these powers in the context of modern interpretive, constitutional and domestic and international human rights principles, including the United Nations Declaration on the Rights of Indigenous Peoples. Such an analysis is crucial, we felt, because, although the language of the Indian Act by-law provisions has changed very little over the years, developments in the law mandate a very different approach to by-laws than was the case in earlier decades. We consider the application of modern interpretive and constitutional principles related to by-law interpretation and a detailed legal analysis of each stage of the by-law process as ‘connecting the dots.’ Connecting these dots now creates a picture that presents more options and opportunities than most assume is possible with Indian Act by-laws.
The report comprises 10 chapters:
- Introduction
- Constitutional, legal and political context
- Community context and their by-laws
- The municipal by-law context
- Making by-laws
- Enforcement of by-laws
- Prosecution of by-laws
- Adjudication of by-laws
- Penalties for by-law infractions
- Summary of Findings and Recommendations
Although this report was written for Mi'kmaq communities in Nova Scotia, our analysis has broad relevance to the exercise of jurisdiction under the Indian Act by First Nations across the country, as well as under other forms of delegated legislation, such as the First Nations Land Management Act.