OBJECTIVES:

• To provide technical assistance to Band Councils in the development and implementation of by-laws enacted pursuant to the Indian Act.
• To monitor by-law developments with a view to ensuring that the department's statutory and legal obligations are performed, by providing timely advice to the Minister on the use of disallowance powers.
• To provide a by-laws advisory, facilitating, and training service for the benefit of Band Councils and enforcement agencies.
• To review and recommend acceptance of applications for Governor in Council Justice of the Peace cross-appointments.
• To support governance and control over local matters by supporting the use of by-law making powers.

BACKGROUND:

The Indian Act (the Act) provides for the making of Band Council by-laws pursuant to sections 81 (local government by-law making powers) and section 85.1 (prohibition of intoxicants).

Section 86 of the Act provides for the certification of true copies of by-laws by specific departmental officials in regional and district offices for the purpose of the prosecution of by-law offences. Section 107 of the Act allows the Governor in Council to appoint Justices of the Peace for the purpose of adjudicating Indian Act and limited Criminal Code offences.

The By-laws Advisory Services Unit was introduced in 1989 as a measure to assist in the development of by-laws as this process can be both difficult and confusing.

DESCRIPTION OF OPERATIONS:

Band Councils enact by-laws and forward them to the department in accordance with the requirements of the Indian Act. By-law Advisors then review the by-law for legal and procedural compliance and where necessary, liaise with other relevant departments, provincial counterparts, and other parties. If necessary, Advisors may formulate recommendations to disallow a by-law to the Minister within the 40 day period for disallowance. When appropriate, the Minister signs a Disallowance Order which is communicated to the Band Council along with recommendations for re-drafting and re-submission. All by-laws, are recorded and classified.

By-law Advisors review and provide recommendations on draft and enacted by-laws submitted by Bands. They also meet with Council and community members, and enforcement and prosecution agencies in an effort to assist in resolving specific implementation and enforcement issues.

By-law Advisors also provide assistance and advice through the following: Band Governance By-law workshops organized for Band Councils, Tribal Councils, and enforcement agencies. Workshops address technical issues of drafting, enactment, and enforcement of by-laws. Since the introduction of the advisory service numerous workshops have been held with over 2000 individual participants.

Resource materials include the workshop manual and sample by-laws.

Consultation takes place through meetings and correspondence with Band Councils and enforcement agencies.

The authority to certify by-laws as referred to in section 86 of the Act has been delegated to various officials in regional and district offices who have been declared by the Minister to be "superintendents" within the meaning of the Act.

Band Councils may submit a band council resolution requesting that a specific individual be cross-appointed Justice of the Peace. Evidence is required to confirm the candidate's provincial appointment as a Justice of the Peace. A submission is made to the Governor in Council for the cross-appointment of the candidate as a Justice of the Peace for the purposes of the Indian Act.

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