Jurisdiction Issues to Consider for Operating a Business in a First Nation Community

The guide Jurisdiction Issues to Consider for Operating a Business in a First Nation Community, has been prepared by the Canada / New Brunswick Business Service Centre with input from affiliated Provincial and Federal departments and agencies to provide you with a list of common jurisdiction issues to consider when carrying out your project. The extent to which the information contained within this guide may apply to you will be dependent upon the circumstances unique to your project. For further information on individual topics identified herein, contact the respective governing body or the Canada / New Brunswick Business Service Centre .

Because this document is only meant as a guide, the Canada / New Brunswick Business Service Centre will not accept responsibility for business decisions made based on the information provided. For specific questions, you are urged to contact a lawyer or the appropriate government department or agency. For a complete list of our guides, see List of New Brunswick Guides.

Note:  You will notice that throughout this publication, there are references made to other relevant documents. If you are using the Web, simply click on the links provided. If you are reading this publication from a print copy and would like to obtain those additional documents, please call the Canada / New Brunswick Business Service Centre at 1-800-668-1010 and we will provide you with copies.

TABLE OF CONTENTS

1. General Jurisdiction Considerations

2. What laws and regulations may apply to my business located in a First Nation Community?

2.1  Federal laws / regulations
2.2  Provincial laws / regulations
2.3  Municipal laws / regulations

3. Other issues that may be taken into consideration when jurisdiction is in question

4. Other Sources of Information

4.1  Indian and Northern and Affairs Canada -  Atlantic Region
4.2  Canada / New Brunswick Business Service Centre

1.  General Jurisdiction Considerations

Legislation governing First Nations jurisdiction is a complex segment of Canadian law. Existing laws and treaties governing First Nations jurisdiction may be subject to clarification, amendment and/or reinterpretation in the courts. As a result, it is recommended you consult a lawyer, appropriate legislating body, government department, or the Canada / New Brunswick Business Service Centre to ensure the most up-to-date and relevant information is available to you and your business. Knowledge of the most current legislation will allow you the opportunity to ensure the operation of your business is considered safe, lawful and within established guidelines.

The question of who has jurisdiction over businesses on First Nation land is often determined on a case-by-case basis. Determining which governing body may have jurisdiction over your business or segments of your business could be of significance because federal, provincial, municipal and band regulations may differ in terms of the requirements and guidelines a business is expected to follow. If it is determined your business or segments of your business has to follow federal, provincial, municipal or band regulations/guidelines, it may influence the start-up or day-to-day operation of your business.  

The jurisdiction guidelines presented below should be considered guidelines only and not a substitute for actual legal advice. The applicability of the guidelines included herein may depend upon any number of characteristics unique to your business and your situation. It is recommended the interpretation of these guidelines and their applicability to your business be left to a specialist.

2.  What laws and regulations may apply to my business located in a First Nation Community?

2.1  Federal laws / regulations
The Canadian Constitution defines the legislative authorities for both the Parliament of Canada and the Provincial Legislatures. Included among this distribution of power, under federal authority, are 'Indians, and Lands reserved for the Indians'. As a result, the federal government has been assigned jurisdiction to most affairs related to First Nations people and First Nation communities.

Cited below are examples where federal law or federal jurisdiction has, in the past, been found to apply to businesses in a First Nation community. Federal jurisdiction and the applicability of these examples will depend on the circumstances unique to your business and is at the discretion of the appropriate governing body. You are urged to consult the appropriate government department to determine if these, or any federal regulations may apply to your business.

• If business activities have been determined to be Aboriginal specific in nature or relate specifically to a First Nation or First Nation band council, federal jurisdiction / regulation(s) will likely apply to your business.
• If a provincial law has been determined to interfere with or is inconsistent with a federal law of similar scope, the federal law / regulation will likely apply to your business.
• If a provincial law or regulation has been determined to infringe on any existing and affirmed Aboriginal right(s) or if a provincial law or regulation has been determined to infringe on any existing and affirmed treaty right(s), federal law(s) / regulation(s) will likely apply to your business.
• If a provincial law has been determined to infringe on any cultural or Aboriginal activities or has been determined to impair the status or capacities of First Nation individuals, federal law(s) / regulation(s) will likely apply to your business.
• Specific areas where federal legislation has, in the past, been found to apply to Indians on-reserve: education, wills, land ownership, laws on garnishment and seizure, taxation of gasoline and tobacco.

2.2  Provincial laws / regulations
Though the federal government has been assigned jurisdiction to most affairs related to First Nations people and First Nation communities, it is not uncommon for provincial law to find jurisdiction over certain First Nation matters.

Cited below are examples where provincial law or provincial jurisdiction has, in the past, been found to apply to businesses in a First Nation community. Federal jurisdiction and the applicability of these examples will depend on the circumstances unique to your business and is at the discretion of the appropriate governing body. You are urged to consult the appropriate government department to determine if these, or any provincial regulations may apply to your business.

• If it has been determined there is an absence of adequate federal legislation in place to protect a business or portion of a business as well as its clientele and so as to avoid a situation where there is an absence of law in place, provincial law(s) / regulation(s) may apply to your business.
• If business activities have been determined to be of a non-Aboriginal specific nature or are of a general nature, unrelated to band government or band projects and the provincial law is of a general nature, provincial law(s) / regulation(s) may apply to your business.
• Specific areas where provincial laws have, in the past, been found to apply to Indians on-reserve: child welfare, family law, highway traffic laws, occupational health and safety laws, provincial employment and labour laws.

2.3  Municipal laws / regulations
Municipal laws (by-laws) seldom have jurisdiction in First Nation communities, except where agreements between a First Nation and a municipality are reached explicitly extending municipal authority onto First Nation land. For more information, contact your local First Nation band or municipality.

3.  Other issues that may be taken into consideration when jurisdiction is in question
In addition to the examples described above, a number of other issues may be considered when determining jurisdiction over your business in a First Nation community. The following issues are among the most common:  

• Past court rulings and legal decisions may be taken into consideration when jurisdiction is in question.
• The business type or business sector in which you operate may be taken into consideration when jurisdiction is in question.
• Ownership of the business and/or whether the First Nation band has any control or ownership in the business may be taken into consideration when jurisdiction is in question.
• How any profits are distributed may be taken into consideration when jurisdiction is in question.
• The location of the business (within First Nation / reserve boundaries, within municipal boundaries) may be taken into consideration when jurisdiction is in question

Note:  The applicability of some laws may vary from one First Nation community to another as a result of existing and affirmed treaty and Aboriginal rights.  A First Nation's unique culture or existing agreements with government could also affect the applicability of laws or jurisdiction. As such, existing agreements between your First Nation band and government should be taken into consideration prior to making any business decisions. Contact your local First Nation band or the Department of Indian and Northern Affairs Canada for more information.

Every business is unique and many considerations often go into determining who has jurisdiction over a business in a First Nation community. As a result, jurisdiction is usually determined on a case-by-case basis. The contents of this document were collected to highlight some of the more common jurisdiction issues to consider and should be used as a guide only. The guidelines included in this document should not be considered exhaustive or complete.

You are strongly urged to consult the appropriate federal or provincial department and/or a lawyer before making any business decisions relating to the jurisdiction of your business.  

4.  Other Sources of Information

For more information on jurisdiction issues for your business in a First Nation community, please contact:

4.1  Indian and Northern and Affairs Canada - Atlantic Region

Atlantic Regional Office
P. O. Box 160
40 Havelock Street
Amherst, Nova Scotia  B4H 3Z3
Telephone: (902) 661-6200
Fax:           (902) 661-6237
Web site:   http://www.ainc-inac.gc.ca/index_e.html

4.2  Canada / New Brunswick Business Service Centre

The Canada / New Brunswick Business Service Centre is an innovative partnership of federal and provincial government departments. Both levels of government work with key private-sector organizations to create a seamless information network for entrepreneurs.

Our mission is to improve the start-up, survival and growth rates of small and medium sized enterprises by giving business people in every part of New Brunswick access to accurate, timely and relevant information and referrals.

What can we do for you? We can guide you in the right direction! We can give you the information you need! We are your best source of comprehensive business information!

The Canada / New Brunswick Business Service Centre is accessible province-wide and free of charge. You may reach us through our toll-free number or visit us with your questions. Our office is open from 8:30 a.m. to 5:00 p.m., Monday to Friday. We also provide a 24-hour business information service, seven days a week, through our Web site.

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DISCLAIMER
Information contained in this document is of a general nature only and is not intended to constitute advice for any specific fact situation. Users concerned about the reliability of the information should consult directly with the source, or seek legal counsel.

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