Where does your authority come from to create a Law?
- Land Code
A broad, general principle to set the vision and priorities for your First Nation comes from Council Strategic Direction.
Ideally, laws and policies should be developed based on principles, visions and priorities, rather than reactions to immediate issues.
The details of law development are outlined within your Land Code. It is important to review these sections and building supporting policy to ensure there is a consistent process that is followed.
What is a Law?
- The system of rules that a particular country or community recognizes as regulating the actions of its members and may enforce by the imposition of penalties
- “…commanding what is right and prohibiting what is wrong”
- Are legally binding
- May create penalties and offences
- Authorize enforcement measures
- Are passed under an original source of jurisdiction (e.g. Canadian Constitution or FNLMA) vs. bylaws which are delegated
- Before a draft bill or law can become a law, it must go through a series of steps that allow it to be debated and amended.
- In order to become law, a federal or prov. bill must receive a majority of votes in parliament or the provincial legislature
- It is important to confirm that there is authority under the Land Code for the type of law
- Follow the requirements for consultation with community and committee or approval by the community or Council
- Try to follow the traditions, teachings and culture of your First Nation
When is a Law the best tool?
- When required by your Land Code
- When there are issues of fundamental importance
- When there are sufficient resources for implementation and enforcement
- When mandatory standards or prohibitions need to be set
- When enforcement tools are required
When is a Law NOT the best tool?
- When there is a lot of detail that needs to be regularly revised (laws take time to amend; usually changeable details go into regulations or policies)
- If there are not sufficient resources to implement and enforce it
- When the goal is educational or aspirational
What are Regulations?
- Contain the details to make a Law work.
- (Ex: if a Law requires a meeting to be held, the regulations would set out how many days in advance, the form of the notice, etc.)
- Can be amended more easily than Laws
- Are usually created under delegated authority
- Council may delegate regulation-making powers through the “parent” law
- Are still legally binding (compared to policies which are not)
When are Regulations the best tool?
- A decision is not of fundamental importance
- A non-controversial aspect of the law may need to be altered easily or often
- There are details that clarify issues in the related Act
- It is clear who has the authority to make and amend the regulations
Regulations should NOT:
- Limit personal rights or freedoms
- Deal with matters of fundamental importance
- These should be in the law itself
- Allow for the transfer or sub-delegation of the power to make regulations to other parties
- Exceed the limits set out in the Law that created them
- Include vision statements or educational goals
- Include items that are not enforceable
What are Policies and Guidelines?
- Help maintain consistency in decision-making
- May support laws, or implement a non-legislative government objective
- Are NOT legally binding
- Give direction to program managers and staff about how to make decisions (e.g.: how to decide when a fee should be waived, etc.)
- Provide guidance to applicants about application procedures (e.g.: what forms to use, how long processing takes)
When are Policies the best tool?
- When there does not need to be the force of law (when the goal is to educate, promote, or implement rather than to enforce)
- When there are repeated applications or decisions and a policy is needed to ensure consistency
- When there are minor gaps in the implementation of laws or regulations
- When a decision must be made about how to spend pre-determined funding or manage programs
- To simplify or explain a law to people using it (such as members or applicants)
How to assess relevant laws and priorities for your First Nation:
- Does your First Nation have any urgent issues?
- Major development happening right away
- Urgent issues with CP land
- Major pollution or contamination issue
- Dangerous or aggressive dogs
- Imminent danger to your community
Legislative Drafting – Do…
- Be aware of the legislative requirements of your land code, consider the Indian Act, federal/Provincial/Municipal laws as well as treaty and other aboriginal rights
- Follow your Nation’s traditions and teachings
- Where appropriate or required, seek community input on key issues and values to inform the law
- Find ways to engage with members that are informal and comfortable
- Consider which draft provisions need to be in the law and which belong in regulations or policies
- Think about enforcement: what tools are available and how can the law be effectively and inexpensively enforced?
- “Test drive” the law with hypothetical scenarios and examples to see if it will work
- Use preambles to provide context and goals for the law
- Use plain English and keep it simple
- Use consistent terminology and terms
- Define key terms, but do not define terms that are used only once
- Use cross-references sparingly
- Work with the staff who will be implementing the law to develop schedules, regulations, policies, application forms, permits, etc.
- Proofread the draft law many times
Legislative Drafting – Do Not…
- Only communicate when you need something from members (e.g.: a ratification vote)
- Ignore members’ or stakeholders’ legitimate concerns
- Make assumptions: if you don’t know, ask
- Blindly cut and paste or use wording from precedents that may not apply to your Nation
- Include provisions that do not conform with your Land Code, the Indian Act or your Treaty
- Draft wording that is ambiguous, difficult to understand, is overly complex or legalistic
- Include provisions that you don’t understand or can’t easily explain to others
- Use inconsistent or ambiguous wording
- Draft large complex structures or bureaucracies or processes that will be difficult and expensive to implement
- Draft laws or provisions that are impossible or very difficult or expensive to enforce
- Skip qualified legal review prior to law enactment
Law Development Procedures
A proposed law may be introduced at a duly convened meeting of the Council by
- the Chief or a Councilor; or
- the representative of anybody or authority composed of members that may be authorized by Council to do so
- in accordance with your Land Code
Tabling and posting of proposed laws
Before a proposed law may be enacted by the Council, it must first be:
- tabled at a meeting of the council held at least ___ days before the law is to be enacted
- posted in public places on First Nation land at least __ days before the law is to be enacted
- Must be developed in accordance with your Land Code.
The Council may enact a law without the preliminary steps required in your land code, if the Council is of the opinion that the law is needed urgently to protect First Nation land or the members, but the law expires ___ days (in accordance with your land code) after its enactment, unless re-enacted in accordance with section ___.
Approval of Law
A law is enacted if it is approved by a majority of the Council at a duly convened meeting.
Council may want to hold a Secret Ballot Vote at a Special Membership meeting for a law that does not require a Ratification Vote under the Land Code but is significant enough to have membership validate the law being developed. For a sample of a “Secret Ballot Voting Process” – see Attachment “J”.
Certification of Laws
The original copy of any law or resolution concerning First Nation land shall be signed by a quorum of the council present at the meeting at which it was enacted. In accordance with your Land Code.
Operational First Nations have full power to enforce their land and environmental laws and may enter into further agreements with other jurisdictions to assist in such enforcement. A First Nation can appoint its own Justice of the Peace to try offences created under a Land Code or a First Nation law, and can appoint its own prosecutor. First Nation laws may make provision for search and seizure, fines, imprisonment, restitution, community service or alternate means for achieving compliance with its laws.
Key points to keep in mind when developing any law are:
- Who will be enforcing the law?
(Land Governance Director, Band Manager, Enforcement Officer, Security Company, Bailiff, RCMP, Justice of the Peace)
- What tools can be built in to the law and policy?
(Education, Warnings, Stop-work orders, remediation orders, tickets, fines)
- Can you coordinate with other entities?
(Other First Nations, municipalities and regional districts, SPCA, RCMP, etc.)
- How will additional costs be recovered?
- Removing politics from enforcement – develop some language or tools // Andrew PPTs
- Security Contractor appointed to monitor commercial & residential, giving presence … issues to go to LGO/Council for follow up (link into budget)
HOW TO WRITE LAW – Checklist
- Obtain qualified legal services; a lawyer that is familiar with First Nation Law, Framework Agreement, Indian Act, and Land Code.
- Refer to Operational First Nation Budget for sample breakdown of law development.
- Research neighboring FNLM Laws, local municipality bylaws, and First Nations own bylaws.
- Have lands committee involved by reviewing all of the above materials in preparation for meetings.
- Know what your First Nation wants to do with the law (i.e. what do they want to prohibit, allow, and/or incorporate into the law).
- Create a standard template for creating a law.
- Be sure the law is consistent to the First Nations Land Code and other laws that may be applicable.
- Build in traditional values or principles. For example, some of the traditional laws are:
a) It’s good to remember the teachings of our ancestors;
b) Respect all things;
c) Don’t waste, ruin, destroy everything only take what you need;
d) This is our land we have to take care of everything that belongs to us.
- Have someone lead the lands committee through drafting the law.
- Ensure active participation from the lands committee. Canvass each participant during the meeting or welcome comments following the meeting.
- Adopt a good neighbor policy by incorporating comparative fees to your neighboring municipality and First Nations.
- Complete the draft law and forward to Chief and Council for their input and upon recommendations bring to the community for input.
- Create a communication strategy for law distribution to the community members – if needed.
- Bring comments and any issues from the community members to the lands committee and Chief and Council for consideration.
- Follow your land code for the steps to ratify the law.
Register the law in the FNLRS, have available for the general public, post on website, post in public places, and create a binder of laws.
Some sample laws can be found on the LABRC website – Lands Laws. If you are looking to develop a specific law, we encourage you to research other First Nation’s websites, to connect with them for copies and ask them about their experience when developing the law.
– Links coming soon!
- Application for Business License
- Business License Law
- Business License Law Fee Schedule
- Establishing a Land Authority
- Fireworks Law
- Governing Use and Occupancy
- Land Code Zoning Regulation
- Land Committee Selection Process Law
- Land Law Consultation, Voting, and Enactment
- Land Use and Community Plan
- Land Grants to Members Policy
- Land Interest Act
- Land Pricing Policy
- Land Instrument Law
- Law on Interests
- Natural Resources Land Law
- Soil Transport, Deposit and Removal
- Soils Law
- Subdivision Developments and Servicing Law
- Subdivision and New Development
- Zoning and Land Use
- Matrimonial Property
In accordance with your Land Code, a register of the original copy of all laws and resolutions, including laws and resolutions that have been repealed or are no longer in force may be kept at the First Nation’s administrative offices. Any person may obtain a copy of a law or resolution on payment of a reasonable fee set by the Council.
This could be organized in a few ways, you could have a public computer available with your laws, or set up a binder with a Sample Law Index (e.g. XX First Nation Law #2010-01, First Nation Title of Law). It is also a good practice to register laws in the FNLRS, post on the First Nation and LABRC websites.
LAND CODE AMENDMENTS
- LC amendment (difficult process, expensive, timely) specifics are in the Land Code
- Track adjustments, suggested review periods, 3-5 years
- Typos and technical errors can be track (BCR sample)
- Vote considerations that are more cost effective;
- Depends on FN & LC language; secret ballot at special meeting, electronic voting,
- Consider amendments to amendments language if to strict