"WE SHALL MAINTAIN LAWS THAT PRESERVE OUR WILDLIFE, LANDS AND RESOURCES¹"

Over the course of the last two years, Kewayosh Community Development Consultants has been working for the Heritage Centre in preparing a report on an Environmental Management System for Bkejwanong Territory, which included completion of a community consultation process. In January of 1999, they provided their final report to the Heritage Centre, which was approved by Council in January, 1999.

One of the major findings of that report was that Walpole Island First Nation should apply its jurisdiction over the local environment. In the first part of their report, they discussed the need for Council to develop environmental legislation and by-laws to address environmental protection and conservation. It was suggested that that legislation be developed through a joint effort involving the entire community, other knowledgeable people, and using federal and provincial regulations/guidelines in developing such legislation. The scope of such legislation, according to those consulted in the community, should be broad, and include a system of enforcement and penalties. It was suggested that the jurisdiction begin to be exercised within the boundaries of the present day community, eventually expanding to the old Treaty boundary areas after having taken proper care of your own community.

This discussion paper is intended for use by Chief and Council to identify and discuss various avenues available to Council to pass laws regarding environmental matters. As will be seen, there are a variety of avenues, some more clearly open and less risky, and others more difficult and risky, but providing greater scope for passing environmental protection laws. At the end of the discussion paper, a number of questions for discussion are proposed to assist Chief and Council in assessing and deciding among the various available avenues.

Avenue One: Indian Act by-laws

There are, of course, serious and important political issues with respect to use of Indian Act by-laws by Council as a means of governing. The politically offensive part is clear. The Minister of Indian Affairs has the power to disallow s. 81 by-laws and must approve s. 83 by-laws for them to be enforceable. The by-law power is therefore, in essence, a delegated power. As well, it is commonly understood that such by-laws can only apply on reserve, not within a First Nation’s traditional territory. (Below, discussion is offered about whether this common understanding is necessarily the case for all types of by-laws.)

It is the intention of this part of the discussion paper to generate debate about this political issue. The question is this: Could Council actually turn a colonizing statute that has a repugnant history, namely the Indian Act, to its advantage in relation to environmental protection concerns? That is, could the Indian Act provide a useful tool to protect the environment? Therefore, for the purposes of frank discussion by Chief and Council, and given the potential power and scope of Indian Act by-laws to deal with environmental matters certainly on reserve and perhaps in some cases off reserve as discussed in detail below, the following observations are made.

The first observation is that the Indian Act model of Ministerial disallowance is not as antiquated as people might think. It is a matter of current debate. The model of "Ministerial disallowance" is a feature of one of the most recently negotiated Agreements-in-Principle in the comprehensive land claims process, namely that between the Labrador Inuit, Newfoundland and Canada.2

The second observation relates to how the Courts have characterized Indian Act by-laws. The New Brunswick Court of Appeal, in the context of an Indian fishing by-law which was upheld3 and in which the Trial Court’s decision was overturned, has described the disallowance provision as creating a "procedure which provides for the autonomy of the band council in making a self-governing by-law while at the same time providing a check or safeguard against abuse because the Minister may disallow the by-law."

The third observation is that Indian Act by-laws have the force and effect of a federal regulation. The B. C. Court of Appeal4 has also found that s. 81 by-laws, even if inconsistent with other federal laws (e.g., a regulation made pursuant to the federal Fisheries Act), will be upheld, as long as they are not inconsistent with the Indian Act or regulations made pursuant to that Act, of which there are very few. By extension from this case, assuming that a by-law fit within a purpose under s. 81 or s. 83, an Indian Act by-law passed by a Council and approved by the Minister of Indian Affairs can "trump" other federal environmental regulations. It is also fairly certain that Indian Act by-laws would trump provincial regulations purporting to be enforced on reserve, were this to occur.

Fourth, a Minister’s decision to disallow a particular by-law could be challenged in the Courts on the issue of whether the by-law was within the scope of the Council to pass. This ability of a Council to challenge a Minister’s decision to disallow5, which has not to date been done in the Courts in relation to any by-laws with environmental purposes, could be used to the Council’s advantage to demonstrate that the Minister’s power of disallowance is not absolute.

Fifth, although it is true that by-laws purporting to apply off-reserve might be disallowed, the results of the community consultation process have indicated that at least some community members are interested in initially addressing what is happening within the current community boundaries. As discussed below, the Indian Act by-law powers could, in many cases, be readily used to support environmental protection laws applicable on reserve.

Having set out these points for discussion, I now discuss in detail the potential scope of Indian Act by-law powers in relation to environmental protection. Section 81 covers a fairly broad scope of environmental protection matters that could be addressed in Indian Act by-laws. Section 81 lists a variety of purposes for which by-laws can be made. These by-laws must not be inconsistent with the Act or with regulations made pursuant to the Act.

It is also of note that penalties for breach of such by-laws could only have a maximum fine of $1,000 attached to them (s. 81(r)). This will not be a disincentive to some corporations. There would probably be some stigma attached to being found guilty in connection with breach of a First Nation’s environmental law that would still be there, regardless of the quantum of the fine. As well, and importantly, a series of offences for each day on which an offence occurs could increase the overall quantum of a fine in some circumstances.

Balanced against this minimal fine provision, Indian Act by-laws may also include a maximum 30-day jail sentence for breach of a by-law. The use of jail sentences for individuals prosecuted for breach of environmental protection laws by the province of Ontario has been extremely limited, no doubt in part because of the potential for Charter challenges when an individual did not commit an act intentionally. However, for intentional offences or reckless offences, it is possible that WIFN could effectively sentence individuals to jail terms if they are the directing minds and wills of corporations and knew what was going on or ought to have known. Such a case would have to be undertaken carefully, but it is not impossible.

As well, it would not appear to be contrary to the Indian Act to provide for creative alternative sentences for breach of an environmental by-law, under the authority of s. 81(q) (the "ancillary and relating to" power) read together with the penalty provision, s. 81(r).

Some of the s. 81 purposes could be used to support fairly expansive by-laws covering matters within your current community boundaries (and, perhaps, beyond). These purposes are discussed below. Also included is discussion regarding the subject matters that might be covered in such by-laws:

(a) to provide for the health of residents on the reserve and to prevent the spreading of contagious and infectious diseases;

This section offers much scope. For example, a by-law regulating emissions from industrial facilities or regulating gasoline stations or waste disposal sites6 on reserve, regardless of who owns or operates the facility, would readily fall within this purpose. The purpose of the by-law would be aimed at protecting residents’ health. Such a by-law could cover a broad array of matters – e.g., requirements for approvals with terms and conditions, stop orders, control orders, powers of officers to seize property, etc. Such matters are extensively dealt with in Ontario’s Environmental Protection Act, and in some federal environmental statutes dealing with limited subject matter, such as toxic substances, and could be used as a source of ideas for what might be included in such a by-law. Such a by-law could apply not only to reserve members but to anyone conducting business on the reserve.

It is even possible to imagine crafting a by-law, consistent with this purpose7 that extended to off-reserve facilities which would potentially have on-reserve effects, given that the by-law does not expressly indicate that it is to be restricted to only matters "on the reserve". (This is as distinct from other sub-sections, such as (o) below.) However, this might cause the Minister to disallow the by-law, but that disallowance could be challenged in the Courts. We understand however that, in at least one instance, namely the Mowachact Health By-law, the Minister did not disallow a by-law that had the effect of regulating an off-reserve pulp mill.8

Depending on the scope of the by-law, however, the Minister might well choose to disallow the by-law.9 The arguments to be made for extending the Band Council’s control to matters off-reserve would be the same kinds of arguments as made by municipalities with by-laws affecting territories outside their municipal boundaries. Unfortunately, however, municipal by-laws with extra-territorial effect have not been readily accepted by the Courts. Many such by-laws have been struck down by the Courts as being outside the municipality’s territorial jurisdiction. The lack of any express provision in the Indian Act allowing band councils to regulate matters off-reserve is clearly an important limit on the ability to affect matters off-reserve.10 However, there might be room for such scope, depending on the wording of the by-law.

(c) the observance of law and order;

This provision would support more tangential provisions of environmental protection by-laws dealing with matters such as giving powers to officers investigating offences to lay charges for obstructing their investigations. This power is found within the Ontario Environmental Protection Act and is an important power for officers seeking information from individuals in connection with a possible offence.

(d) the prevention of disorderly conduct and nuisances;

Environmental problems are, at common law, quite often litigated under the tort of "nuisance". This sub-section could give a very wide scope for passing laws dealing with nuisances causing environmental effects such as water and air pollution. However, the lumping together of nuisance with "disorderly conduct" might be interpreted as limiting the scope of this section to minor nuisances (e.g., littering). With that said, there are other sub-sections that support broader environmental protection issues.

(f) the construction and maintenance of watercourses, roads, bridges, ditches, fences and other local works;

Bridge and road construction can cause serious environmental impacts, and are often the subject of both federal and provincial environmental assessments. This section could therefore support environmental protection laws directed at protecting the environment in light of these developments and other "local works". It would also arguably be sufficient support for a by-law on environmental assessment of such works on reserve. Using the same analysis as has been made in relation to Indian Act by-laws "trumping" federal regulations passed under another federal Act, namely the Fisheries Act, it is even arguable that First Nations could pass its own environmental assessment by-law to address these works. This by-law would then replace the Canadian Environmental Assessment Act on reserve.

Given section 81(q) that allows by-laws to address "any matter arising out of or ancillary to the exercise of powers under this section", it is certainly also arguable that an environmental assessment by-law could cover all projects which have the potential to affect the health of residents and/or which create nuisances.

"Local works" is also a broad term that likely would include waste disposal sites.

This clause is similar to one of the provincial heads of constitutional power often cited as constitutionally supporting provincial environmental protection laws, namely "local works and undertakings".11

(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;

Zoning can be a powerful environmental conservation tool. This sub-section provides clear authority for such zoning by-laws which can restrict businesses in portions of the reserve.

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

Although limited to band-owned and band member-owned buildings as well as those leased by the band or band members, this can be an important environmental tool too. It essentially contemplates a First Nation Building Code, which could cover matters such as energy and water conservation requirements.

(j) the destruction and control of noxious weeds;

This could be extended to cover a general pesticide use by-law. Pesticide use is heavily regulated (at least on paper) under Ontario’s Pesticides Act and regulations. I expect, however, that there has never been an attempt by Ontario to enforce such laws on your reserve. Pesticide use was raised as a concern in the community consultation, and the Council has a clear avenue to address this issue on reserve by way of a by-law.

(l) the construction and regulation of the use of public wells, cisterns, reservoirs and other water supplies;

This gives broad powers to regulate and protect water supplies on reserve. A very interesting possibility for WIFN arises because of this section: namely, seeking to regulate upstream polluters. So, for example, a by-law that prohibited natural persons and corporations from engaging in activities which would have the likely effect of causing a negative effect on Walpole Island First Nation’s water supply might be covered as falling within this purpose. Similarly, a by-law might prohibit persons from spilling or discharging materials into water courses where the effect of such spills or discharges would be to interfere with the water supplies used by Walpole Island First Nation.

The persons who could be prosecuted for breach of such a by-law arguably could include not only band members but upstream polluters off-reserve.

(o) the preservation, protection and management of fur-bearing animals, fish and other game on the reserve;

Many bands have passed by-laws under this section. Based on case law dealing with persons charged under federal regulations made pursuant to the Fisheries Act, it is clear that many such by-laws are much simpler than the detailed Fisheries Act regulations, and less prohibitive than those regulations. However, there is nothing to prevent Council from passing very strict conservation by-laws under this section. It is also clear that such by-laws have been approved even though they contain provisions relating to persons other than band members, prohibiting them from harvesting fish and game on reserve.

The broad headings of "preservation, protection and management" would allow for a wide scope of matters to be addressed in such a by-law.

Fish and game officers could get broad authority through the terms of such a by-law, although such provisions would be subject to Charter challenges, as are the provisions of provincial environmental protection laws.

The ability of Councils to use this section to support by-laws which apply off-reserve has been specifically addressed in the Courts. A number of 1996 Supreme Court of Canada decisions12 interpreting this phrase have found that the doctrine that ownership of land abutting a watercourse extends to the middle of the stream13 did not apply to navigable rivers. Had the Court decided otherwise, this might have allowed the Band by-law in question to extend control over fisheries to the entire stream running through their reserve (which was bisected by the stream). Therefore, any Band by-law purporting to regulate fisheries in navigable waters adjacent to their reserve may not trump regulations under the federal Fisheries Act.

I say "may not" rather than "will not" trump, as there is a counter-argument to the Supreme Court of Canada’s decisions which is along the following lines. The Court relied on historical facts in interpreting the doctrine that ownership of land abutting a watercourse extends to the middle of the stream that are not applicable to Upper Canada. Therefore, the argument goes, these decisions should not be applied to aboriginal fishing rights in Ontario. The Nawash fishing by-law, under which two Nawash band members are being prosecuted in relation to fishing without a band licence on Georgian Bay, clearly applies on its face outside the reserve boundaries. These charges are currently before the provincial Court, and this issue may well arise in that case.14

This sub-section is not limited to fisheries, of course. It also extends to wildlife management, as well as preservation and protection. This could support by-laws aimed at controlling the effects of forestry and other activities on wildlife and fish. The issue in the area of forestry would be whether the by-law was "inconsistent with" the Indian Timber Regulations. Given the near silence of these regulations regarding environmental effects of forestry, there would appear to be wide scope for a Council by-law regulating the conduct of logging.

(q) with respect to any matter arising out of or ancillary to the exercise of powers under this section

This provision is an important one, as it allows for many subsidiary matters in addition to the specific lists above to be addressed in by-laws. It is possible, for example, to imagine a progressive by-law addressing the "right to know" what chemicals are being used by a business.

Section 83 by-law powers are also noted because some of these purposes have application to environmental protection.

Money by-laws

83. (1) Without prejudice to the powers conferred by section 81, the council of a band may, subject to the approval of the Minister, make by-laws for any or all of the following purposes, namely,

(a) subject to subsections (2) and (3), taxation for local purposes of land, or interests in land, in the reserve, including rights to occupy, possess or use land in the reserve;

(a.1) the licensing of businesses, callings, trades and occupations;

(g) with respect to any matter arising out of or ancillary to the exercise of powers under this section.

Taxation powers can be creatively used to regulate the environmental effects of activities. As well, business licensing could be used as an avenue to effect environmental controls over businesses.

Conclusion:
Council may wish to consider using one or more of the available purposes for making by-laws under the Indian Act to pass environmental protection and assessment by-laws. There are clearly political issues associated with such an action, but the scope of such by-laws on reserve, and even having application off-reserve, is potentially broad.

Avenue Two: Canadian Environmental Assessment Act

The Canadian Environmental Assessment Act ("CEAA") and associated regulations create some environmental assessment responsibilities for band councils, as well as opportunities for the First Nation to lobby the Minister of Environment for an environmental assessment of projects off reserve with on-reserve effects.

The CEAA Inclusion List Regulations provide that a number of activities on reserve are "projects" that may have to be environmentally assessed under CEAA; e.g., use of reserve lands for schools, administration, etc.; gravel and sand removal; operation of a garbage dump; timber cutting where an authorization is required under various sections of the Indian Timber Regulations. Not all such projects are necessarily going to be assessed, however. A "federal authority" (typically a federal Minister) also has to exercise a power or perform a function such as issuing a federal permit or licence listed in provisions in the Law List Regulations, or leasing an interest in the reserve, or providing funding, in order for an environmental assessment to be required under CEAA. In numerous cases, projects on reserve would thus be required to proceed through an assessment under CEAA.

CEAA also provides that for federally funded projects on reserve, a different sort of environmental assessment could be required. This "environmental assessment of a third kind", as I call it, is different from the two other types of environmental assessment set out in CEAA - screenings and comprehensive studies. Section 10 of CEAA says that before a person or body receives financial assistance provided by a federal authority to enable a project to be carried out on reserve, the council of the band "shall ensure that an assessment of the environmental effects of the project is conducted in accordance with any regulations made for that purpose". No such regulations have been passed. It is not clear what is required in the absence of such regulations: is Band Council simply not required to conduct any environmental assessment for on-reserve projects that are federally funded, or is the regular CEAA-type assessment required to be completed by the federal authority (i.e., screening or comprehensive study, depending on the type of project), or is it up to Council to conduct some type of environmental assessment even in the absence of such regulations? There is no clear answer to this. What appears to be happening in practice is that the federal authority will conduct a screening in such cases. Nonetheless, s. 10 does create the possibility that Councils will be required to conduct their own environmental assessments for federally funded projects.

Section 47 has potential effect on WIFN because of your location along an international border. It addresses projects having international effects. It permits the Minster of Environment to require an environmental assessment of a project on your reserve, although it would not require the exercise of a federal power, duty or function (e.g., federal funding, the issuance of a federal permit under the Law List Regulations), if the Minister were of the opinion it could cause significant adverse environmental effects outside Canada and outside your reserve. In this case, it could refer the project to a mediator or a review panel for the environmental effects outside Canada and outside of the reserve. So, for example, if your First Nation were seeking to develop a major facility which required no federal authorizations, the Minister of Environment could still require an environmental assessment in such circumstances.

Section 48 is also an important section to be aware of. It has the potential of being used by your First Nation to persuade the Minister of Environment to conduct an EA of proposed projects that affect your reserve where one would not otherwise be required under CEAA. Three circumstances must be met for this to occur:

1. the project must be located in Canada

2. no power, duty or function (e.g., federal funding, the issuance of a federal permit under the Law List Regulations) is required to be exercised by a federal authority. In many cases, projects on provincial lands only require provincial authorizations, not federal ones, so this could cover, for example, an industrial operation discharging effluent to a waterway that ran through your reserve.

3. the Minister of the Environment must be of the opinion the project may cause significant adverse environmental effects on reserve lands. This is a fairly high threshold to be met, and would likely require scientific evidence to persuade the Minister of such potential effects.

In these circumstances, the Minister could exercise her discretion to refer the project to a mediator or a review panel, or if the Minister, the governments of all interested provinces and the band council (or the relevant federal authority) agreed.

From the previous discussion, it is clear that CEAA does not create law-making powers for band councils in the area of environmental assessment. Rather, environmental assessment powers are in the hands of the "federal authority" providing funding or issuing permits or other authorizations required under federal statutes (often the Minister of Indian Affairs for on-reserve projects.) However, as discussed in Avenue One above, Council could conceivably pass an environmental assessment by-law under the Indian Act which would "trump" the CEAA requirements on reserve in relation to some matters. Any such by-law would have to be carefully constructed to ensure that it would stand up to challenge that it is outside the scope of s. 81, but it is an interesting possibility for Council to consider if it wishes to have greater control over environmental assessment of projects on reserve.

Avenue Three: Asserting unjustified interference with aboriginal and treaty rights and aboriginal title, due to off-reserve developments

Walpole Island First Nation Council is of course familiar with using the courts and Ontario administrative tribunals such as the Environmental Assessment Board to seek to protect their aboriginal and treaty rights. The legal arguments that can be made in such forums relate to forcing consideration of whether there is interference with constitutionally protected aboriginal rights such as hunting and fishing rights, and whether the Sparrow test has been followed. Factors to be considered include the extent of aboriginal consultation, and whether the action interferes as little as possible with the exercise of aboriginal and treaty rights.

Of course, arguing before the Courts and administrative tribunals about interference of off-reserve developments with aboriginal and treaty rights and aboriginal title is not the exercise of jurisdiction in the form of law-making. Nonetheless, for completeness, it should be noted that these avenues can be useful ones to further WIFN’s environmental objectives in relation to the reserve and its wider traditional territory.

Interference of off-reserve developments with aboriginal title is not something which has yet been asserted by WIFN, given that it is in the course of pursuing aboriginal title litigation. To date, Council has decided it would be premature to bring an aboriginal title case forward in the context of fighting a proposed development. However, assuming WIFN’s aboriginal title litigation will be successful, this will in future give WIFN another means of protecting the environment within those lands where aboriginal title is successfully established.

This is because the Supreme Court of Canada in Delgamuukw15 has required the provincial and federal governments to justify interference with aboriginal title. In such cases, the Crown must not only demonstrate (in the case of resource allocations for such things as forestry, mining and agriculture) "that the process by which it allocated the resource and the actual allocation of the resource which results from that process reflect the prior interest" of the holders of Aboriginal title in the land. It must also involve Aboriginal peoples who hold that title in decisions taken with respect to their lands. This will always require good faith consultation. In many cases, it will require something more than mere consultation. In some cases (e.g., the passing of regulations regarding hunting and trapping), it will require consent of the Aboriginal nation. This would give WIFN as the holder of aboriginal title considerably more say over proposed developments with environmental effects that are located on your aboriginal title lands.

Avenue Four: Laws passed pursuant to the Inherent Aboriginal Right of Self-Government

The Supreme Court in Pamajewon16 set out what appears now17 to be the applicable test for Aboriginal self-government rights.18 The Court did not decide that s. 35(1) of the Constitution Act, 1982 included self-government rights but said that, assuming it did, the applicable test is the one set out in R. v. Van der Peet.19 The test in Van der Peet is as follows: for an activity to be an aboriginal right, the activity "must be an element of a practice, custom or tradition integral to the [pre-contact] distinctive culture of the aboriginal group".

Although the Supreme Court has not decided that s. 35(1) includes protection for self-government rights, at least one provincial Court of Appeal, the British Columbia Court of Appeal, has held that s. 35 does recognize and affirm one class of aboriginal jurisdiction rights, namely in relation to rights of social self-regulation (dealing with such matters as marriages and adoptions).20 The list of matters that Courts might find would be included within "rights of social self-regulation" could reasonably be extended to cover matters relating to regulation of the use of lands and resources where those matters are necessary to the proper functioning of an aboriginal society. So, for example, if the people of WIFN had rules about the need to protect species which they hunted or used for ceremonial purposes from the effects of harmful activities, these rules for protection of the species and their habitats would arguably give rise to rights of self-government in relation to protection of those species and their habitats. This could give rise to a fairly broad scope of matters to be covered by environmental protection laws: e.g. regulating forestry, waste disposal, and industrial establishments with air and water emissions, all of which have potential effects on species traditionally harvested by the people of WIFN, and upon their habitats.

Contrary to First Nations’ political perspectives on the inherent right of self-government, the Court in Pamajewon also noted that claims for self-government should not be broadly characterized. It said that "Aboriginal rights, including any asserted right to self-government, must be looked at in light of the specific circumstances of each case and, in particular, in light of the specific history and culture of the aboriginal group claiming the right."

The Court’s rejection of the appellant’s broad characterization and the particular factual focus indicates a right-by-right analysis is likely to be required. The Court found that self-government cannot be talked about with excessive generality; it must be characterized with reference to the particular matter in relation to which the right of self-government is claimed.

How the Court’s right-by-right approach would relate to laws regarding environmental protection is an interesting and important question. In Pamajewon, which dealt with high stakes gambling, the Court said that casting the right as "the right to manage land" was too general. It suggested that the correct characterization of the right claimed was to be limited to the activity giving rise to the Criminal Code charge against the First Nations involved in that case. They said the proper characterization of the right was "the right to participate in, and to regulate, high stakes gambling activities on the reservation."

Would a Court consider the proper characterization of a right in relation to environmental protection to be "the right to protect and conserve the environment used by the First Nation"? Or would that be considered too broad? A court might consider the proper characterization to be "the right to regulate waste disposal on reserve" or "the right to regulate forestry activities on reserve". If such narrow characterizations were adopted, which is possible in light of Pamajewon, this would make it more difficult, on a challenge of any part of a WIFN law in relation to environmental protection, to establish jurisdiction over particular activities like waste disposal. WIFN would have to establish that, pre-contact, regulation of waste disposal was a "practice…. integral to the distinctive culture of WIFN." In fact, when put this way, it seems almost impossible that some typical areas of environmental regulation (e.g., prohibitions against chemicals which pollute air and water) could ever be shown to be "integral to the [pre-contact] distinctive culture of WIFN." That is, pre-contact activities of WIFN are likely to not have included such activities. A broader characterization such as "the right to protect and conserve the environment used by the First Nation for activities integral to its distinctive culture (including, for example, hunting and fishing)", would appear to be a much more useful characterization that could meet the test of being "integral to the distinctive culture of WIFN."

I raise these issues of characterization of aboriginal self-government rights for a very simple reason. If Council, as the governing authority for WIFN, were to pass laws on environmental protection in the exercise of their inherent right, it is most likely that parties affected by such laws, particularly non-Band members, would seek to challenge the laws as being outside Council’s legal authority. This could happen, for example, if the law resulted in a substantial fine being imposed on a company or individual which disposed of waste contrary to that law.

In order to be prepared for such challenges, consideration would need to be given to collecting historical information, including oral history information, regarding WIFN’s environmental management practices in the past. The types of historic information that should be collected would need to answer the following kinds of questions:

• what types of activities did your First Nation seek to regulate in your traditional territory? (e.g., cutting of trees, harvesting of wildlife and plants)
• what kinds of rules were imposed in relation to these activities? (e.g., was a harvester from another aboriginal group required to get approval from the Council if it sought to harvest wildlife and plants, or cut down trees?)
• who imposed the rules?
• if someone breached the rules, what happened to them? That is, what system of enforcement was there?
• how important were these rules to your culture?

Environmental protection laws passed pursuant to the inherent right could then be developed in light of such information and the test in Van der Peet.

There is clearly much political appeal to exercising the inherent right of self-government over environmental protection, as compared to trying to force the envelope to make Indian Act by-laws an effective tool for environmental protection. The potential scope of such a law could also be quite wide. The quantum of fines could be made high enough to act as an effective deterrent to corporations, as compared to the measly $1,000 maximum available under the Indian Act.21 Below, a number of other issues are raised that would need to be considered in exercising your inherent right in this area.

First there is the issue of enforcement. To enforce any law passed pursuant to this inherent right within a Canadian court would certainly require WIFN to establish that they had an aboriginal right protected by s. 35(1) to make such a law. An aboriginal Court could be established with jurisdiction in relation to enforcing WIFN’s environmental laws, but getting a third party to submit to that jurisdiction could prove difficult. Therefore, the interaction of your law with the Canadian court system would need to be explored in detail. By contrast, enforcement in Canadian courts of Indian Act by-laws is not an issue.

A further issue in pursuing this route is the issue of conflicts between laws. The great majority of environmental law in Ontario is enacted by the Province. To date, the Province has not sought to enforce its environmental protection laws on reserve lands. However, if WIFN were to pass an environmental protection law, and even if it only applied to its reserve lands (and certainly if it applied outside of the reserve boundaries), a challenge to that law is to be anticipated. The Courts would have to determine not only whether the WIFN law is valid as an exercise of the right of aboriginal self-government, but also how to resolve the situation where there is a conflict between the WIFN law and provincial law. The Courts would need to decide which law prevails in the extent of a conflict. However, as discussed in more detail below, this need not necessarily become a major issue given the Courts’ approach to conflicts between laws.

The Royal Commission on Aboriginal Peoples considered this issue in its report. RCAP concluded that, in the event of a conflict between a provincial law of general application and an Aboriginal law, the Aboriginal law should take precedence.22 This conclusion is far from certain, however, and would be an issue that would probably need to be litigated.

Finally, of course, it must be noted that testing the scope of aboriginal self-government powers in the environmental protection area carries with it significant risks. The Courts could find that these powers are limited, or even non-existent. Even if the Courts found these powers to be expansive, where there is a conflict between laws, a First Nation’s law could be rendered inoperative to the extent of the conflict.

Avenue Five: Laws passed pursuant to a negotiated self-government agreement

In 1995, Canada published its Policy Guide on Aboriginal Self-Government, setting out its approach to implementation of the inherent right and the negotiation of Aboriginal Self-Government. The policy framework states that Canada recognizes the inherent right of self-government as an existing Aboriginal right under s. 35 of the Constitution Act, 1982.

It is possible to proceed with self-government negotiations under this Policy using a sector-by-sector approach. A number of subjects for negotiation relating to environmental protection fall within the listing of "matters that are internal to the group, integral to its distinct Aboriginal culture, and essential to its operation as a government or institution." Those subject matters are:

• land management, including: zoning; service fees; land tenure and access; and expropriation of Aboriginal land by Aboriginal governments for their own public purposes
• natural resources management
• agriculture
• hunting, fishing and trapping on Aboriginal lands
• management of public works and infrastructure
• licensing, regulation and operation of businesses located on Aboriginal lands
• administration/enforcement of Aboriginal laws, including the establishment of Aboriginal courts or tribunals and the creation of offences of the type normally created by local or regional governments for contravention of their laws [This language suggests a potential limitation on the scope of offences that WIFN could enact in relation to environmental protection.]

The policy suggests that for this first category of subject matters, in some areas, detailed arrangements would be required to ensure harmonization of laws, while in other areas, the Aboriginal law could stand on its own without the need to address such matters.

However, the Policy deals differently with matters that are more directly related to environmental protection. It says that, with respect to the matters of environmental protection, assessment and pollution prevention, as well as fisheries and migratory birds co-management, "to the extent that the federal government has jurisdiction in these areas, it is prepared to negotiate some measure of Aboriginal jurisdiction or authority….primary law-making authority would remain with the federal or provincial governments, as the case may be". The Policy states that the rule for dealing with conflicts between laws would be that provincial or federal laws would prevail in the event of a conflict.

In considering this route, Council should not immediately "throw the baby out with the bath water" because of this conflict rule. That is, Council should not assume that First Nation laws would regularly be considered to be in conflict with provincial and federal laws dealing with the same subject matter. In many instances, two laws that, according to common-sense considerations might appear to be in conflict, would not amount to a legal conflict. So, for example, the Supreme Court of Canada has upheld provincial highway traffic offences of driving without due care and attention and failing to remain at the scene of an accident, even though very similar federal offences exist in the Criminal Code.23 The Canadian Courts have also taken the course of judicial constraint, finding there to be few inconsistencies between laws. Of particular interest in the environmental protection field which regulates conduct of polluters, the Courts have said that an express contradiction between laws which regulate conduct occurs only when it is impossible for a person to obey both laws: the "impossibility of dual compliance" rule.24

So, for example, there would likely be no conflict if your First Nation passed a law posing a higher or different penalty for a similar environmental offence.25 If your First Nation imposed an additional permit requirement as compared to an Ontario or a federal law, this would also not create a legal conflict. Even if your law were stricter than a federal or provincial law, the rule is that if you can obey both laws by complying with the stricter one, there is no conflict.

Where a conflict might be more likely to arise in this context is in the area of law enforcement. Courts have found that where federal and provincial rules imposed contradictory requirements on officials who had to administer the laws in relation to juvenile offenders, there is a conflict and the Courts applied the rule of paramountcy of federal laws in those cases.26

The Federal Policy also addresses generally the issue of interaction with the provincial government. It states that "provincial governments are necessary parties to negotiations and agreements where subject matters being negotiated normally fall within provincial jurisdiction or may have impacts beyond the Aboriginal group or Aboriginal lands in question". In the area of environmental protection, certainly if WIFN wished to have environmental protection laws apply outside the borders of the present-day community, this would involve Ontario. Even if limited to on-reserve, given the fact that much of environmental law in Ontario has been enacted by the province, Canada might insist that, at some point at any rate, Ontario become a party to the negotiations.

As would be expected, the Policy requires that self-government agreements have to provide that the Charter applies. This is relevant in the environmental protection law context, particularly in relation to the powers of enforcement officers.

Questions for Discussion

In light of the above discussion of possible avenues, the following questions for discussion are raised:

1. Does Council see any merit in passing Indian Act by-laws to regulate environmental protection on-reserve?

2. Does Council see any merit in passing Indian Act by-laws to regulate off-reserve industries affecting your First Nation’s water supplies?

3. Does the minimum $1,000 fine for Indian Act by-law offences make use of Indian Act by-laws a futile effort? In answering this, consider whether the availability of jail terms for serious offences makes any difference.

4. In considering questions (1) and (2) above, would it make any difference if these by-laws were enacted as interim measures, while preparing a Walpole Environmental Protection Act under the exercise of your inherent self-government jurisdiction?

5. What kinds of environmental subject matters would Council like to address in the immediate future? Would Indian Act by-laws be an option for these issues?

6. Is Council interested in developing its own environmental assessment by-law? Or does Council prefer to have federal authorities retain the responsibility to conduct environmental assessments for on-reserve projects?

7. Does Council wish to direct the development of an environmental protection law or laws under the exercise of its inherent right of self-government? If so, does it see merit in now conducting historical and oral history research on the questions that a Court would consider on a challenge to such a law?

8. Are negotiations pursuant to the federal Policy Guide on Aboriginal Self-Government in relation to environmental protection and assessment an option Council wishes to pursue