Indigenous and Northern Affairs Committee on April 23rd, 2013

[Christopher Devlin]

Correct.

[Carolyn Bennett, Liberal, St. Paul's, ON]

In the other areas—the dry reserves and the special reserves—do you have advice for those sections?

[Christopher Devlin]

What we've set out in the paper is that there are some nations that have adopted those bylaws. I think some consideration needs to given to whether they want to continue with those bylaws and whether the other bylaw powers of the Indian Act would be sufficient for those bylaws to stand.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Do you have a remedy or a prescription for fixing that?

[Christopher Devlin]

I don't believe we put one in our paper.

I think we drew it to the committee's attention.

[Carolyn Bennett, Liberal, St. Paul's, ON]

But you could?

[Christopher Devlin]

Yes, we could.

Part of it is that oftentimes first nations take a different interpretation of the general bylaw-making power under section 81 than the department does. So the department will often disallow bylaws that the first nation thinks it's enacted properly under its law-and-order power.

That can be an administrative difference of opinion that has legal consequences. If the department were to say that, for first nations that have intoxicant bylaws, those can be continued under the section 81 power, that would be the solution.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Do you think that's fixable the way the bill is?

[Christopher Devlin]

It is fixable.

[The Chair, Conservative, Chris Warkentin]

Excuse—

[Christopher Devlin]

Deliberate consideration has to be given so that the nations that have those bylaws now and want them to continue are given the mechanism to do that, so those bylaws aren't struck down.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Is it the same for special reserves?

[Christopher Devlin]

Yes.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll turn to Ms. Ambler now for seven minutes.

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you, Mr. Chair.

Thank you both for being here today.

Thank you for the presentation, Mr. Devlin, and the report.

I'm going to switch gears a little bit and talk about the new bylaw provision under this proposed bill. On page 3 of the report that I have, you refer to the fact that the minister's approval would no longer be necessary for a new bylaw to come into force and that the

CBA Section believes this will be a positive change.

Could you elaborate on that a little bit for us, please?

[Christopher Devlin]

That sort of follows on the heels of my last response.

Often first nations will engage their law-making power under section 81 and will send it off to Indian Affairs and within 40 days Indian Affairs may or may not disallow.

They tend to disallow. The department has fairly definite policies about the nature of the bylaws that they will allow to go forward, as opposed to the ones that they will disallow. Sometimes there's a difference of opinion between the first nation and the department on whether something is a valid bylaw.

What this would do is the first nation would essentially incur all the liability of a bylaw so that if they wanted to pass a bylaw under their section 81 power they could. If someone thought it was invalid they'd have to challenge it in court rather than the minister having the opportunity to disallow it.

[Stella Ambler, Conservative, Mississauga South, ON]

Which is really the way it is in most other jurisdictions.

[Christopher Devlin]

That's right. If you think of a municipality, for example, if it exceeds its bylaw-making authority, then it can be struck down by the courts.

[Stella Ambler, Conservative, Mississauga South, ON]

It seems to me that was Mr. Clarke's intention. He's right here so I'm sure he could speak for himself. I know I've heard him say that first nation governments are treated differently. It was his motivation, really, for changing that.

[Christopher Devlin]

If you think of first nations as small, local governments—now some not so small—they often have legal counsel involved in the drafting of their bylaws. We're in the modern age now where there are lots of advisers, lawyers and otherwise, on governance issues. If a first nation wants to engage in its law-making power, then it can assume the liability of making laws as well.

[Stella Ambler, Conservative, Mississauga South, ON]

It's less paternalistic as well.

[Christopher Devlin]

Agreed.

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you.

Other witnesses here have told us that Bill C-428 would introduce a bylaw publication requirement that other jurisdictions don't have to follow. It is more onerous. Clause 10 would require that the bylaws be published on the band's Internet's site, in the First Nations Gazette, and in a newspaper generally available on reserve. This is instead of the minister's approval now.

But I understand, through a bit of inside information, that Mr. Clarke is considering an amendment to his bill that would require the publication of the new bylaw in only one of these places, instead of all three.

Does the CBA have an opinion on this potential amendment? Again, how would it compare to other jurisdictions' publication requirements?

[Christopher Devlin]

We don't have an opinion on it. As a lawyer who researches these things, I would sure like to see it in the First Nations Gazette, but that's for my convenience. On the question of whether it's onerous to a first nation, that is a question that should be considered in terms of the additional cost that it would bring on the first nation to have to publish these things.

[Stella Ambler, Conservative, Mississauga South, ON]

In all three....