Bill S-38

This enactment recognizes the powers of First Nations peoples inhabiting lands reserved for their communities to exercise the jurisdiction and powers inherent in their status.

It provides for a process whereby a First Nation community may opt to come under its provisions by following the steps provided, and recognizes the jurisdiction of First Nations that do so. A referendum must be held on the subject and the proposal, including a constitution, must put before the electors. The constitution must provide at least for accountability and for limits on the law-making powers of the First Nations government. The enactment applies only to recognized land-based indigenous communities.

First Nations lands are named aboriginal lands. They include reserve lands, lands acquired or owned by a First Nation before or after it comes under the Act that are declared by the Governor-in-Council to be its lands, treaty or land claim lands confirmed through negotiation or through the successful assertion of a claim, and any lands acquired by the First Nation before or after it comes under the Act as compensation for the expropriation of other land.

The enactment recognizes the jurisdiction of First Nations to legislate in specified fields, and reconciles that jurisdiction with the jurisdiction exercised by federal and provincial governments. The limits of a First Nation’s jurisdiction are set out in its constitution, and its law-making powers are limited by several factors, including the following:

(a) except in very limited areas, they are applicable only on the lands of the First Nation;

(b) they do not override federal laws in areas of national concern;

(c) they do not override the Constitution of Canada;

(d) they may be limited by the First Nation’s constitution;

(e) in certain areas, such as environment and citizenship, they are specifically limited; and

(f) the penalties that may be established are limited.

The First Nation has exclusive jurisdiction over its own laws in relation to the laying of charges and the prosecution of persons who contravene its laws. The enactment sets forth the relationship between the First Nation and the province in which it is situated. It also provides for the management of the First Nation’s land and finances.

The enactment contains a draft sample constitution, but a different constitution may be adopted, provided it is consistent with the Act and covers specified subject matters. The constitution must be approved by the people, and may be amended only by them according to its terms. A First Nation’s government cannot amend its constitution.