REGS Committee Report
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The Honourable J. Trevor Eyton
Mr. Andrew Kania, MP
Standing Joint Committee on
Scrutiny of Regulations
c/o The Senate
Dear Senator Eyton and Mr. Kania:
Pursuant to Standing Order 109 of the House of Commons, I am pleased to table the Government’s response to the Second Report of the Standing Joint Committee on Scrutiny of Regulations, tabled in the House of Commons on April 22, 2009.
The Government of Canada appreciates that the specific issues raised by the Joint Committee have been the subject of earlier examinations, as well as earlier undertakings to accommodate the Joint Committee’s recommendations. Although the Government of Canada acknowledges the value of the Joint Committee’s recommendations, the Government of Canada does not believe that legislative amendments to the Indian Act are required at this time.
As the Joint Committee is aware, sections 81, 83 and 85.1 of the Indian Act empower the council of a band to pass by-laws on various subjects listed in those sections.
In 1987, the Statutory Instruments Regulations, as they specifically pertain to by‑laws, were amended to exempt all by-laws passed by band councils pursuant to sections 81, 83 and 85.1 of the Indian Act.
Although band council by-laws are exempt from publication and registration by virtue of the Statutory Instruments Regulations, First Nation band councils remain subject to other provisions of the Statutory Instruments Regulations. In particular, the legislative requirements of the Statutory Instruments Regulations regarding notification of enacted and enforceable First Nation by-laws to the attention of persons who may be affected by their existence, providing access to band council by-laws and procedural fairness, continue to apply to First Nation communities.
Subsection 11(2) of the Statutory Instruments Act clearly stipulates that no person shall be convicted of an offence for contravening an unpublished by-law unless it is proved not only that the by-law/regulation was exempt from publication in the Canada Gazette, but also that reasonable measures were taken to bring the by-law/regulation to the attention of individuals, who may be affected by their existence. As well, the Statutory Instruments Act establishes the right of an individual to inspect the by-law/regulation and obtain copies, if requested, for a prescribed fee.
With respect to fulfilling the legislative requirements prescribed by the Statutory Instruments Act, the onus lies with individual First Nations to ensure that the requirements of the Statutory Instruments Act are respected. It should be emphasized that it is in the best interests of First Nations, when enacting and enforcing band by-laws, to ensure that reasonable steps are taken to bring by‑laws to the attention of those who may be affected by their enforcement and to provide individuals with access and copies. First Nations who fail to meet these requirements put at risk the successful prosecution of the by-law and incur the costs associated with an unsuccessful prosecution.
The decision as to whether a First Nation has taken reasonable measures to inform those who may be impacted by a particular by-law’s enforcement as well as an individual’s conviction pursuant to the enforcement of a particular by-law rests with a court of competent jurisdiction. A court may take into consideration the following items when hearing a prosecution:
The Government of Canada shares your objectives with respect to ensuring that individuals are properly notified of enacted First Nations by-laws and that individuals are protected from being found guilty of an offence under a by-law that they did not know existed; however, paragraph 11(2) (b) of the Statutory Instruments Actclearly provides a safeguard to minimize these types of situations. The Statutory Instruments Act stipulates that no person shall be found guilty of a by-law offence unless it is proven that reasonable steps were undertaken to bring the by-law to the attention of “those persons likely to be affected by it”. Therefore, an amendment to the Indian Act is not necessary as the Statutory Instruments Act already provides a safeguard from conviction in instances where reasonable steps were not being taken to bring the by-law to the notice of those most likely to be affected by its coming into force and enforcement.
As you may be aware, First Nations leadership, membership and representatives regularly contact the Department of Indian Affairs and Northern Development to discuss issues regarding the drafting, adoption, enactment and enforcement of by-laws. As well, the Department provides training to First Nations regarding sections 81 and 85.1 by-law making powers of the Indian Act. During the course of the Department’s conversations with First Nation band councils and their representatives, officials will place additional emphasis on its discussion of the Statutory Instruments Act, and its application to First Nation by-laws.
In order to increase further awareness and clarify the requirements of the Statutory Instruments Act and its application to First Nation by-laws, the Department of Indian Affairs and Northern Development will communicate directly with all First Nation band councils before the end of 2009 regarding their obligations under the Statutory Instruments Act.
I wish to reassure the Joint Committee that the Government of Canada shares the Joint Committee’s goals of transparency and due process and respects the values of its recommendations. However, at this point in time, the Government of Canada submits that the current Statutory Instruments Act adequately addresses the concerns that the Joint Committee has raised.