1. Walpole Island Council Philosophy and Principles Environment Statement, Special Council Minutes, May 18, 1987

2. The AIP was signed in January of this year. Section 12.7.4 allows the provincial Minister to disallow Inuit laws relating to wildlife and plants within 60 days of the law being submitted to the provincial Minister. The AIP provides no express reasons as to why a Minister might disallow an Inuit law. This is exactly the same model for Ministerial disallowance as set out in the Indian Act by-law provisions.

3. R. v. Ward, [1989] 2 C.N.L.R. 142 at 145

4. R. v. Jimmy, [1987] 5 W.W.R. 755 (B.C.C.A.)

5. Such a challenge was unsuccessfully made by St. Mary’s Indian Band for a by-law they sought to have upheld regulating gambling on reserve (St. Mary’s Indian Band v. Canada – leave to appeal to the S.C.C. was refused in 1997).

6. Section 81 by-laws cannot be inconsistent with regulations made pursuant to the Indian Act. There is a specific regulation dealing with waste disposal. Given the very barebones nature of the Indian Reserve Waste Disposal Regulations, there is wide scope for a comprehensive by-law addressing waste disposal, which would include dealing with waste tires and dumping waste chemicals and the like. These issues were mentioned in the community consultation process.

7. A by-law which was clearly passed in contemplation of a specific off-reserve facility which the First Nation was seeking to prevent being established would probably be struck down by the Courts as being for a "colourable" purpose, not the purpose set out in s. 81(a).

8. There is no reported case law relating to this particular by-law addressing challenges to it. Whether it has been effective or not in achieving its aims would require discussion with the First Nation.

9. Other First Nations developing contentious by-laws with intended off-reserve effects have negotiated with INAC in the development of these by-laws; e.g., the Nawash fishing by-law.

10. This is different from the situation of municipalities which are often permitted by their enabling statutes to establish garbage disposal sites in adjacent municipalities.

11. Section 92(1), Constitution Act, 1867. This and other sources for provincial laws on environmental protection are discussed in Hogg, Peter, Constitutional Law of Canada, 3rd ed., 1992- , at 29-21 and 29-22

12. R. v. Nikal [1996] 3 C.N.L.R. 178 (S.C.C.) and R. v. Lewis [1996] 3 C.N.L.R. 131 (S.C.C.)

13. Ad medium filum aquae.

14. "Nawash members face band fishing charges", Sun Times, August 21, 1999."Nawash members face band fishing charges", Sun Times, August 21, 1999.

15. Delgamuukw v. British Columbia , [1998] 1 C.N.L.R. 14.

16. [1996] 2 S.C.R. 821

17. What follows is admittedly a fairly pessimistic reading of Delgamuukw and Pamajewon, and based on comments that are technically obiter (i.e., not legally binding, but comments that will be considered by future courts). However, this is the direction that may well be followed by higher Courts on appeal. WIFN should be prepared to have to defend its laws based on a more pessimistic reading of the Supreme Court of Canada’s current decisions dealing with aboriginal self-government. Other legal writers, including Catherine Bell, have correctly noted that obiter comments made by Chief Justice Lamer in Delgamuukw regarding the need to consider the discussion of self-government in the Royal Commission on Aboriginal Peoples in examining future claims to self-government could lead to a different, less stringent test for inherent rights of self-government than the Van der Peet test. See Bell, Catherine, New Directions in the Law of Aboriginal Rights, [1998]77 Can. Bar Rev. 36 at 61.

In relation to the Courts’ interpretation of self-government, it will be important to follow the recent decision of the Ontario Superior Court of Justice on August 23, 1999 in the Mushkegowuk Tribal Council case. The case successfully challenged the imposition of the Ontario Works Act on First Nations of that Tribal Council without their consent. The Court made a number of very general statements regarding the aboriginal right of self-government in the context of that case that were much broader than the narrow approach adopted by the Supreme Court of Canada decisions This case is currently under appeal; whether it will ultimately broaden the Court’s characterization of aboriginal rights of self-government remains to be seen.

18. The current state of the law permits a claim based on rights of self-government protected by s. 35(1) of the Constitution Act, 1982 to be made independent from a claim to Aboriginal title (R. v. Adams and R. v. Cóté). So, for WIFN, seeking to pass laws in the exercise of your inherent right of self-government need not be tied to the litigation that is being pursued in relation to Aboriginal title. A successful claim on Aboriginal title would, however, make it practically more likely that a Court would recognize rights of self-government in relation to the lands and waters where Aboriginal title was established.

19. [1996] 2 S.C.R. 507

20. Casimel, [1994] 2 C.N.L.R. 22

21. I say "could", not "would". Whether a Court would find the levying of large penalties to be within the scope of the aboriginal right is an open question, given that levying financial fines or fines "in kind" might not have been the practice in the past. There are good arguments to be made that enforcement techniques should not be frozen in time, but how a Court would view this matter cannot be predicted with any certainty.

22. Royal Commission on Aboriginal Peoples, Volume 2:1, Restructuring the Relationship, p. 217.

23. For example, O’Grady v. Sparling [1960] S.C.R. 804 and Stephens v. the Queen [1960] S.C.R. 823.

24. Smith v. Queen [1960] S.C.R. 776,800

25. Hogg, note 11, supra, at Chapter 16.5(b) discusses a possible defence to charges under both a First Nation law and a provincial or federal law for the same offence; namely, a Charter challenge that this offends the rule in s. 11(h) against "double jeopardy". However, this is not a conflict per se between the two laws, and should not preclude laws being made in relation to the same subject matter. Hogg suggests that the reason there is no case law on this is because the issues of double jeopardy are usually resolved by prosecutorial discretion; i.e., one jurisdiction does the charging.

26. See discussion in Hogg, note 11, supra, Chapter 16.3, Express Contradiction, Secondary Rules.