Court of Appeal for Ontario

Date: 20230803 Docket: C70819 & C70820

Before: Lauwers, Paciocco and Thorburn JJ.A.

Between: Hiawatha First Nation, Applicant (Respondent/ Appellant by way of cross-appeal)

And: Gregory Cowie, Georgina Rogers and Laurel Shearer, Respondents (Appellants/ Respondents by way of cross-appeal)

Counsel: Martin J. Henderson and Brian Chung, for the appellants/respondents by way of cross-appeal David Golden and Christoph Pike, for the respondent/appellant by way of cross-appeal

Heard: March 28, 2023

On appeal from the judgment of Justice Stephen T. Bale of the Superior Court of Justice, dated May 31, 2022, with reasons reported at 2022 ONSC 3276.

Lauwers J.A.:

A. Overview

[1] The respondent, Hiawatha First Nation, applied for a permanent injunction restraining three of its own members, the appellants Gregory Cowie, Georgina Rogers, and Laurel Shearer, from continuing with the construction of a gas station on the Hiawatha reserve, seeking to enforce First Nation Council Resolution 21/19. This Band Council Resolution declared a moratorium on land development on the reserve pending further planning decisions. The appellants then brought a counter-application in which they sought a declaration that BCR 21/19 is of no force and effect, that they are entitled to develop and construct the gas station, and in which they also sought damages.

[2] The application judge allowed Hiawatha’s application in part and dismissed the appellants’ counter-application.

[3] The appellants seek to set aside the injunction and also seek a declaration that BCR 21/19 is unenforceable as it is not a by-law. In their cross-appeal, the respondent seeks to challenge other holdings of the application judge in order to maintain the prohibition on further construction outside the current planning rules.

[4] For the reasons that follow, I would allow the appeal.

B. Background Facts and Procedural History

[5] Hiawatha First Nation is a band under the Indian Act, R.S.C. 1985, c. I-5. It is a small community located on the north shore of Rice Lake. It has about 670 members, of whom about 200 reside on the reserve. A provincial road known as the Hiawatha Line passes through the reserve from the north and runs south to Rice Lake.

[6] Ms. Rogers operates a smoke shop on the reserve. She has a Certificate of Possession for the land on which the shop operates. It fronts on Hiawatha Line. Ms. Shearer has a Certificate of Possession for land abutting Ms. Rogers’ land.

[7] On July 17, 2019, Hiawatha First Nation passed BCR 21/19. As the application judge explained, the Resolution imposed “a moratorium on the creation of all new businesses without council’s approval (to be given in extraordinary circumstances only), to allow [Hiawatha First Nation] to complete its Land Code and Comprehensive Community Plan.”

[8] On August 2, 2019, Council became aware that fuel storage tanks were being delivered to Ms. Shearer’s land. Chief Laurie Carr immediately took the position that the construction was unlawful and asked Ms. Shearer to stop all construction activities – but the work continued. The land was excavated and the fuel tanks were buried.

[9] On October 1, 2019, C.M. Smith J. granted an interlocutory injunction stopping construction of the gas station.

[10] The underlying applications were heard on July 9, 2021. The new Hiawatha First Nation Land Code came into force on August 12, 2021. A copy of the Code was provided to the application judge on February 15, 2022, without further submissions by the parties. The application judge issued his decision on May 31, 2022.

C. The Issues

[11] The issues before this court narrowed in two ways in oral argument. First, the appellants conceded that the new Land Code would apply to the gas station project even though it came into force after the applications were heard but before the application judge rendered his decision. However, the appellants assert the right to object to any particular application of the Land Code to the project by ordinary legal means. In their view, it would be possible, by means of ordinary judicial review, to seek to introduce into the principles of land development projects on reserves some of the concepts that have been developed in land use across Ontario. [1] Nothing in these reasons is to be taken as supporting or denying the validity of the appellants’ argument on the potential application of general land use planning principles to land development on reserves under land codes. Their argument is recited only to set the context.

[12] Second, the appellants undertook not to proceed with the project until the process under the Land Code has run its course, again reserving the rights to challenge any particular application of the Code or related by-laws to the project. Based on this undertaking, the respondent elected not to pursue its cross-appeal.

[13] However, the appellants do maintain their challenge to the application judge’s continuation of the injunction. They argue that because BCR 21/19 is not a by-law enacted by Band Council under the Indian Act, but is only an ordinary Band Council Resolution, it is ultra vires and is not enforceable as a by-law by way of injunction. [2]

[14] This leaves one issue for disposition in this appeal: Did the application judge err in finding that BCR 21/19 was effectively a by-law under the Indian Act and enforceable as such by injunction? I turn to that issue after reviewing the application judge’s reasons.

D. The Application Judge’s Reasons

[15] The application judge rejected the appellants’ argument that BCR 21/19, which provides for a moratorium on the creation of all new businesses, did not have the force of law. The appellants argued that Hiawatha First Nation’s zoning authority under s. 81(1)(g) of the Indian Act may only be exercised by passing a by-law, and not by passing a resolution. The application judge found that Hiawatha First Nation Band Council had the power under s. 81(1)(g) of the Act to regulate the carrying on of businesses on the reserve and that BCR 21/19 was passed in accordance with s. 2(3)(b) of the Act by a majority of the councillors. He held that the BCR could be considered a by-law enforceable under s. 81(3). He found that the distinction argued by the respondent between resolution and by-law was “too rigid”. In his view, to “hold otherwise would be to allow form to triumph over substance.”

[16] The application judge found that the only basis on which the appellants were not entitled to proceed with the project was BCR 21/19. He noted that the purpose of the resolution was to temporarily freeze development pending finalization of the Hiawatha First Nation Land Code – which has now been completed and is in effect. He said: “As the Land Code has since been finalized and is now in effect, the proponents should be entitled to proceed with their project, provided that they comply with the Code and relevant by-laws”, assuming they were capable of doing so.

[17] In view of the state of the project and the prospect that it could be completed, the application judge declined to require the appellants to “remove the tanks and the added fill and restore the property to its original condition.” He thought “they should be given a reasonable opportunity to establish their entitlement to proceed.”

[18] The application judge ordered that the appellants be restrained from continuing work on the gas station for as long as the moratorium imposed by BCR 21/19 remains in effect and thereafter until they comply with all applicable law. He dismissed Hiawatha’s cross-application.

E. Analysis

[19] It is common ground that s. 81(1) of the Indian Act authorizes Hiawatha First Nation Band Council to enact by-laws governing certain subject matters. The relevant excerpts are these:

81 (1) The council of a band may make by-laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, for any or all of the following purposes, namely,

(g) the dividing of the reserve or a portion thereof into zones and the prohibition of the construction or maintenance of any class of buildings or the carrying on of any class of business, trade or calling in any zone;

(h) the regulation of the construction, repair and use of buildings, whether owned by the band or by individual members of the band;

[20] The appellants argue, as noted, that BCR 21/19 was only a resolution, not a by-law. As such it was no more than “simply the expression of the will of a First Nation’s council” as Grammond J. stated in Knibb Developments Ltd. v. Siksika Nation, 2021 FC 1214, at para. 10.

[21] The appellants submit that a band council’s authority under s. 81 of the Indian Act can only be exercised by passing a by-law. Accordingly, the application judge was not correct in stating that BCR 21/19 could be construed as a by-law. They assert that because the resolution is not a by-law under the Indian Act, there was no authority by which the application judge could have continued the injunction. They add that success on this ground would have implications for the application judge’s costs decision.

[22] The respondent argues that BCR 21/19 was the functional equivalent of a by-law and eligible to be enforced as such.

[23] I next review the governing principles and then their application to the facts of this case.

(1) The Governing Principles

[24] In this section, I address 1) the general principles of statutory interpretation, 2) the principles of statutory interpretation respecting the Indian Act, 3) the legislative history of by-law-making power and the role of resolutions in First Nations, and 4) land management by First Nation bands under the Indian Act.

(a) The general principles of statutory interpretation

[25] In Vavilov, the Supreme Court identified a legal expectation that is critical in statutory interpretation: “Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose”. [3] This draws on the “modern approach” to interpretation, which “requires that the words of a statute be read ‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament’”. [4] To analyze the issues the court must consider the text of the legislation, the context within which it operates, and the particular purpose for the provisions at issue.

(b) The principles of statutory interpretation respecting the Indian Act

[26] The Supreme Court has stated that the interpretation of legislation with respect to Indigenous people is to be interpreted broadly and in their favour: see Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119, at paras. 73-77. This purposive approach applies to the Indian Act: Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85, [2001] 3 S.C.R. 746, at para. 49, citing La Forest J. in Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, at p. 143:

[I]n the interpretation of any statutory enactment dealing with Indians, and particularly the Indian Act, it is appropriate to interpret in a broad manner provisions that are aimed at maintaining Indian rights, and to interpret narrowly provisions aimed at limiting or abrogating them.

He added that an interpretation purportedly favourable would not be automatically accepted and must remain coherent with the Indian Act’s scheme, at p. 143. There is not “automatic acceptance of a given construction simply because it may be expected that the Indians would favour it over any other competing interpretation.” He explained: “It is also necessary to reconcile any given interpretation with the policies the Act seeks to promote.”

[27] The Indian Act also sets up an internal tension, which is engaged in this case, between the power of a band to collectively govern and manage the disposition of lands on reserve, on the one hand, and, on the other hand, the proprietary rights of an individual band member who holds a certificate of possession.

[28] The nature of the proprietary interests conferred by a certificate of possession were explored by this court in Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565, 121 O.R. (3d) 561, and described in Louie v. Canada (Indigenous Services), 2021 FC 650, at para. 36:

[I]t is useful to highlight two features of the Act, which are both related to the principle that a reserve is set apart for the collective benefit of members of a First Nation. First, pursuant to section 20 of the Act, the council of the First Nation may allocate parcels of land to individual members, who receive what is commonly known as a certificate of possession. Subject to the restrictions set out in the Act, a certificate of possession confers rights akin to private property: Brick Cartage Ltd v The Queen, [1965] Ex CR 102 at 106–107. It has been said that the First Nation’s interest in land subject to a certificate of possession “has disappeared or is at least suspended”: *Re Boyer and the Queen*, [1986] 2 F.C. 393 (C.A.), at 404.

[29] The rule of construction in favour of “Indian rights” and consistent with the underlying policies applies to the Indian Act, but how this is to be applied is case-specific, and depends on the relevant rights and interests, be they collective or proprietary.

(c) The legislative history of by-law-making power and the role of resolutions in First Nations

[30] The 1869 version of a predecessor of the Indian Act provided that the Chief of “any Tribe in Council may frame, subject to confirmation by the Governor in Council, rules and regulations for the following subjects…” [5]. The first formal Indian Act in 1876 included among the subjects for which “rules and regulations” could be framed the “locating of the land in their reserves, and the establishment of a register of such locations”, again subject to confirmation. [6]

[31] In 1884, Parliament, on the basis that some bands were deemed to be sufficiently advanced that they should be made more autonomous, enacted the Indian Advancement Act, 1884. This is the first instance in which the term “by-law” was used in the legislation, which described by-laws as having “force as law within and with respect to the reserve and the Indians residing thereon”. [7] However, any by-law was valid “only if approved and confirmed by the Superintendent General”.

[32] In 1906, the R.S.C. consolidation brought together the Indian Act and Indian Advancement Act, the latter now constituting Part II of the Indian Act and having primacy over Part I.

[33] In 1951, a new Indian Act was adopted, [8] and constituted a major reform. Most notably for this appeal, the provisions in Part II were extended to all bands and the distinction between “advanced” bands and others “less advanced” was removed.

[34] The new Act changed the way reserves were managed generally and particularly made band councils the decision makers. The former powers of Chiefs to make “rules and regulations” were discontinued and by-law-making powers were given to band councils. The framework setting out these powers is almost intact today. Then s. 80 (now s. 81) provided that “The council of a band may make by‑laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, for any or all of the following purposes” [9]. Section 81 (now s. 82-repealed) required any by-law to be sent to the minister for approval, which approval “shall be deemed to have been given after 40 days”.

[35] While federal government orders and regulations have almost always had to be published in the Canada Gazette, the Statutory Instruments Act, R.S.C. 1985, c. S-22, which became effective on January 1, 1972, widened this requirement. More documents had to be registered with the Privy Council, or reviewed, registered and published in the Canada Gazette, including band council by-laws. However, in 1987, Indian Act by-laws were exempted from the registration and Canada Gazette requirements. [10] Subsequently, in 1997 the First Nations Gazette was launched and received an official mandate to publish approved fiscal measures under the First Nations Fiscal Management Act, S.C. 2005, c. 9. Indian Act by-laws may be published in the First Nations Gazette: Indian Act, s. 86(1).

The 2014 Amendments

[36] In order to adapt the Indian Act and make it more practical for self-governance, [11] the Indian Act Amendment and Replacement Act, S.C. 2014, c. 38 was adopted. These changes further relax the minister’s role in favour of increasing band council authority and autonomy. For instance, s. 82 requiring deemed-ministerial approval for the coming in force of by-laws was repealed, as was s. 85.1(3) which required by-laws relating to intoxicants to be sent to the minister.

[37] Under the 2014 amendments, there are now three categories of by-laws, each with different formalities. First, by-laws passed under s. 81 deal with matters on the reserve and resemble in some ways the types of by-laws municipalities may enact. Of particular relevance to real property are paras. (g) to (i) of s. 81(1), which provide for by-law-making power regarding respectively: (g) zoning, the prohibition of construction, and the carrying on of business; (h) the regulation of construction; and (i) the setting apart of reserve land for Certificates of Possession or common use.

[38] Second, by-laws passed under s. 83 concern the raising and spending of money, the licensing of businesses, the appointment of officials, and provide for an appeal of assessments for taxation. Unlike by-laws under s. 81, these by-laws still require the approval of the Minister, who also has regulation-making powers to govern the exercise of by-law-making powers under the section.

[39] Third, by-laws passed under s 85.1 of the Act relate to intoxicants on the reserve, and require the prior consent of the electors.

[40] Common to all three categories of by-laws are the requirements of s. 86 for publication of by-laws “on an Internet site, in the First Nations Gazette or in a newspaper that has general circulation on the reserve of the band, whichever the council considers appropriate in the circumstances” (s 86(1)). Council must also provide a requester with a physical copy of a by-law (ss. 86(2)-(3)).

[41] The 2014 amendments increase band council autonomy in aid of self-government. The Minister’s role is more limited than formerly. By-laws have the force of law on the reserve and, though exempt from registration and publication, still fall under the Statutory Instruments Act: see R. v. Jimmy (1987), 15 B.C.L.R. (2d) 145 (C.A.), at para 12; Whalen, at para 69. This means that a by-law has the force and effect of a federal regulation [12].

[42] Section 88 of the Act states that valid by-laws have paramountcy over laws of general application of the province on the reserve. This potential legal effect of a by-law supports a stricter reading of by-laws and what can constitute a by-law.

[43] Until 2014, s. 86 provided that “no such by-law is invalid by reason of any defect in form.” These words no longer appear in the section. It can be inferred that with increased law-making autonomy comes greater accountability for proper form and for compliance with natural justice norms.

The function of resolutions

[44] I now turn to consider the function of band council resolutions in the statutory context. It is noteworthy that the Indian Act does not use the term “resolution”. It last appeared in the 1951 Indian Act, in the former s. 96, but only where “the band has transmitted to the Minister a resolution of the council requesting” criminalization of possession of intoxicants. This provision recognized the practice of band councils in operating by resolution.

[45] In the context of First Nation band councils, the term “resolution” is now found in the Indian Band Council Procedure Regulations, C.R.C., c. 950, which prescribe procedure at “Indian Band Council Meetings”. The term “resolution” is not defined, but it is presented as the usual way in which matters are to come before a band council. Section 12 provides:

Each resolution shall be presented or read by the mover, and when duly moved and seconded and placed before the meeting by the presiding officer, shall be open for consideration.

[46] The term “resolution” is used in the governance of band council meetings, much as it is more generally used in speaking of the actions of assemblies from the Legislative Assembly to municipalities to corporate boards.

[47] In Knibb Developments Ltd., Grammond J. made several comments distinguishing between by-laws and resolutions. At issue was the justiciability and enforceability of a band council resolution barring Knibb from contracting with the First Nation or its affiliates. He said, at paras. 9-10:

The resolution is not a by-law made pursuant to section 81 of the Indian Act. By definition, a by-law is an act of a governmental body that creates rules binding on all persons or a category of persons under the jurisdiction of that body. Because it is not a by-law, the impugned resolution cannot bind third parties.

Rather, the resolution is what is commonly known as a band council resolution or BCR. A BCR is simply the expression of the will of a First Nation’s council. … In contrast to a by-law, a BCR usually cannot create rights and duties for members of the First Nation or third parties.

[48] In Gamblin v. Norway House Cree Nation Band, [2001] 2 C.N.L.R. 57 (F.C.T.D.), it was held that a band council resolution is not a by-law if the procedure set out in sections 81–85.1 was not followed. The case was about the enforceability of a band council resolution banishing a member for illegal drug use and bootlegging. While the band had authority to enact a by-law regarding intoxicants under s 85.1 of the Indian Act, it had not done so, but had only passed a band council resolution. Muldoon J. said at para 58:

Had a by-law reflective of the BCR been passed and approved by the Minister, curial deference would be owed to the Band Council's decision to impose a banishment sanction in an attempt to prevent intoxicant abuse on the reserve. However, because the Band Council never intended to enact a by-law, as sworn in the affidavit of Fred Muskego, the BCR does not wield the authority of the Act.

[49] In Whalen v. Fort McMurray No. 486 First Nation, 2019 FC 732, [2019] 4 F.C.R. 217, the band council resolution suspended the applicant as one of its members. Grammond J. observed at para 74: “An additional hurdle facing FMFN’s argument is that the impugned decision was simply not a by-law purported to be made under section 81 of the Indian Act.” He noted the decision in Gamblin. He added, “on its plain reading, the impugned BCR does not purport to enact a by‑law.”

[50] While each of these decisions can be distinguished from the present case, the proposition that there is a basic and principled distinction between a by-law and a resolution remains valid.

(d) Land management by First Nation bands

[51] The policy movement to greater autonomy for First Nations respecting reserve land has accelerated under successive initiatives now captured by the Framework Agreement on First Nation Land Management Act, S.C. 2022, c. 19, s. 121. [13] The preamble explains: “it is appropriate to enact a new implementation Act to replace the First Nations Land Management Act, S.C. 1999, c. 24, and to reflect the primacy of the Framework Agreement, while also ensuring the continuity with the previous legal framework.” The new Act contains an important paramountcy coupling between the Framework Agreement and the new Act, and between the new Act and any other federal law, which would include the Indian Act. It provides:

6 (1) In the event of any inconsistency or conflict between the Framework Agreement and this Act, the Framework Agreement prevails to the extent of the inconsistency or conflict.

(2) In the event of any inconsistency or conflict between this Act and any other federal law, this Act prevails to the extent of the inconsistency or conflict.

[52] The process under both the repealed legislation and the new Act involves the adoption of a Land Code, which enables a First Nation to enact “First Nation law” for the reserve, including with respect to zoning, development and subdivision control. Under the Framework Agreement, First Nations can make land and resource decisions under their Land Code instead of under the Indian Act. However, even with a Land Code, a band council is still empowered under s. 81 to adopt by-laws.

[53] The old Act, the new Act and the Framework Agreement are heavily prescriptive in legal terms while granting the First Nation considerable new powers over reserve land. Part IV of the Framework Agreement details law-making powers and how those laws are to be enforced. Section 18.1 provides:

The council of a First Nation with a land code in force will have the power to make laws, in accordance with its land code, respecting the development, conservation, protection, management, use and possession of First Nation land and interests or land rights and licences in relation to that land. This includes laws on any matter necessary or ancillary to the making of laws in relation to First Nation land.

[54] The operation of the Land Code escalates the law-making function beyond the by-law-making power under the Indian Act. However, in so doing, the Framework Agreement recommends (at s. 5.3(a)) that Land Codes prescribe specific conditions for the exercise of the First-Nation-law-making power (see Hiawatha First Nation Land Code, Part 5).

[55] As the legislative history of the Indian Act and cognate legislation shows, the law increasingly recognizes and empowers Indigenous self-government. The scheme still sets apart the role of by-laws from other band council duties. The legislation makes an important distinction between the band council acting, on the one hand, as law-maker and quasi-legislator, and the band council acting, on the other hand, as administrator of affairs on the reserve.

(2) The Principles Applied

[56] As noted above, Hiawatha First Nation’s new Land Code came into force on August 12, 2021. It was processed under the old Act but continues in full force. It was in anticipation of this new Code that BCR 21/19 was passed on July 17, 2019 in order to impose, as mentioned, “a moratorium on the creation of all new businesses without council’s approval” in the meantime.

[57] To reprise the immediate issue, the application judge found that Hiawatha First Nation Band Council had authority under s. 81(1)(g) of the Act to regulate the carrying on of businesses on the reserve and that Resolution 21/19 was passed in accordance with s. 2(3)(b) of the Act by a majority of the councillors. He held that the resolution could be considered a by-law enforceable under s. 81(3). He found that the distinction argued by the appellants between resolution and by-law was “too rigid”. In his view, to “hold otherwise would be to allow form to triumph over substance.”

[58] I disagree.

[59] I would draw several conclusions in interpreting the Indian Act by-law provisions in light of the text, context, and purpose. For purposes of the Act, there is a fundamental difference between a by-law and a resolution.

[60] A band council’s passage of a by-law is an act of law-making within carefully defined areas of jurisdiction, and a by-law has the force of law on the reserve under the Indian Act. As Grammond J. noted in Knibb Developments: “a by-law is an act of a governmental body that creates rules binding on all persons or a category of persons under the jurisdiction of that body.” It is plainly intended to elevate the exercise of law-making authority.

[61] By contrast, the passage of a resolution by a band council is an expression of the band council’s will that cannot create rights and duties for band members or others, and does not have the force of a by-law.

[62] It must also be noted that this case involves potential legal interference with rights, i.e., proprietary rights. The distinction between a by-law and a resolution is all the more consistent with maintaining a high standard for substantiating such a legal interference. A band council resolution can bind the band council itself. A by‑law can bind others.

[63] The contrast between a band council resolution, a by-law under the Indian Act, and a First Nation’s law under its Land Code discloses scaling requirements for exercising governance powers. This illustrates that the evolution towards self-government carries with it an emphasis on legality and its necessary concomitants – careful attention to formality and process.

[64] The fact that a band council might have publicized a resolution as it would a by-law does not have the effect of converting a resolution into a by-law, even if the subject matter of the resolution might have been properly embodied in a by-law. The presence of only some badges of a by-law is insufficient. Hiawatha First Nation Band Council was well familiar with both by-laws and resolutions, as was noted in argument, having passed both. That it chose not to enforce the moratorium by means of a by-law must itself be respected as its own governance choice, as was the case in Gambin.

[65] To conclude, a First Nation band council’s passage of a by-law under the Indian Act is a serious act of law-making and must follow the rules of law-making in the Act in order to secure the legal weight of enforcement. Hiawatha First Nation Council Resolution 21/19 was not a by-law under the Indian Act either in form or in substance. Consequently, the application judge erred in enforcing it by continuing the injunction.

F. Disposition

[66] I would allow the appeal (as reframed in oral argument) and dismiss the cross-appeal. Given the significant concession made in oral argument by the appellant, I would make no order as to the costs of the appeal and cross-appeal. If the parties are unable to agree on the costs of the application and cross-application in light of the outcome of these appeals, then the appellants may file a written submission no more than three pages in length within ten days of the date of the release of these reasons, and the respondents may file a written submission no more than three pages in length within ten days of the date the appellant’s submission is due.

Released: August 3, 2023 “P.D.L.” “P. Lauwers J.A.” “I agree. David M. Paciocco J.A.” “I agree. Thorburn J.A.”

[1] The appellants referred, as an example, to the “Clergy principle”, which derives from the decision of the Ontario Municipal Board in Clergy Properties Ltd v. Mississauga (City), (1996) 34 O.M.B.R. 277 (Municipal Board), aff’d [1997] O.J. No. 6526 (Div. Ct.), leave to appeal refused [1998] O.J. No. 340 (C.A.), and stands for the proposition that an application for development should be reviewed against the policy documents in place at the date of the application rather than more recently prescribed planning policy.

[2] It should be noted that for the purposes of this appeal, neither of the parties made submissions regarding inherent powers of First Nations to create normative laws regarding local matters; nor shall I delve into that question.

[3] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 118.

[4] 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 6, citing Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21. See also Vavilov, at para. 117.

[5] An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria, Chapter 42. S.C. 1869, c. 6 (Vic 32), s.12.

[6] Indian Act, S.C. 1876 c. 18, s.63 para 8.

[7] The Indian Advancement Act, 1884, S.C. 1884, c. 28, s. 10

[8] S.C. 1951, c. 29.

[9] It should be noted that hereinafter the instruments are only referred to as “by-laws”, no more “rules and regulations”.

[10] Statutory Instruments Regulations, C.R.C., c. 1509, s. 7(l)

[11] See Indian Act Amendment and Replacement Act, S.C. 2014, c. 38, preamble.

[12] R. v. Jimmy (1987), 15 B.C.L.R. (2d) 145 (C.A.), at para 12.

[13] This legislation was enacted after the application judge’s decision was released but it confirms the trajectory of the reforms towards band council autonomy within a regulated law-making structure.