Canadian Flag

Government
of Canada

Gouvernement
du Canada

Government of Canada Wordmark
Safe Drinking Water For First Nations
Canadian Flag Printer FriendlyPrinter Friendly

Report of the Expert Panel on Safe Drinking Water for First Nations

Previous Table of Contents Next

Provincial Laws of General Application

This section analyzes the feasibility of applying existing provincial water and wastewater regulation [8]. to reserves through the laws of general application.

First we review the constitutional framework for the division of powers between the federal and provincial governments as it relates to the regulation of First Nations. Next, we analyze the feasibility and effectiveness of this approach given the constitutional framework and the existing case law regarding provincial laws of general application.

3.1 Constitutional Framework: The Division of Powers

3.1.1 Federal Jurisdiction

Section 91(24) of the Constitution Act, 1867 confers upon the federal government exclusive jurisdiction to make laws in relation to "Indians and lands reserved for Indians."  [9] This jurisdiction is over two separate heads of power: one over "Indians" and the other over "lands reserved for the Indians." [10]

Through the doctrine of interjurisdictional immunity, s. 91(24) protects a core of federal jurisdiction over "Indians" and "lands reserved for the Indians" that is off-limits to the provincial legislatures. A provincial law is invalid if the law can be characterized as a law relating to "Indians" or "lands reserved for the Indians" because in so doing, it would be affecting (in other than a purely incidental way) matters within this core of federal jurisdiction.

Under the first head of power, "Indians," the federal government may enact laws relating to "Indians" regardless if such Indians reside on or off reserve.

Under the second head of power, "lands reserved for the Indians," the federal government may pass laws that affect Indians or non-Indians so long as the laws relate to lands reserved for the Indians. "Lands reserved for the Indians" covers more than Indian reserves and extends to lands subject to aboriginal title. [11]

The fact that "Indians" and "lands reserved for the Indians" come within exclusive federal jurisdiction is insufficient on its own to insulate them from the reach of provincial laws. Certain provincial laws of general application may, of their own force or by referential incorporation under s. 88 of the Indian Act, validly apply to Indians and lands reserved for the Indians. [12] Section 88 reads as follows:

Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act. [13]

3.1.2 Provincial Jurisdiction

A provincial law may apply to "Indians" and "lands reserved for the Indians" in one of two ways:

  1. of its own force as a law of general application so long as it does not affect "Indianness," or
  2. where the provincial law does regulate qua "Indians," then the provincial law may apply by virtue of s. 88 of the Indian Act.
Provincial Laws of General Application

The courts have rejected the "enclave theory," namely that s. 91(24) creates federal enclaves from which provincial laws of general application are excluded. [14]

The general rule is that provincial laws of general application apply of their own force to Indians and lands reserved for the Indians so long as the law is in relation to a matter coming within a provincial head of power, does not invade the exclusive federal authority over Indians and lands reserved for the Indians, and is not inconsistent with any federal laws. [15]

Under the first exception, provincial laws that impair the "status or capacity" of Indians, or that affect "Indianness" do not apply. Nor can provincial laws affect aboriginal or treaty rights or Indian status, as these matters go to the heart of being "Indian." [16]

A provincial law must also not single out Indians or Indian reserves for special treatment and must not be inconsistent with federal law. [17] If a provincial law is inconsistent with a provision of the Indian Act or any other federal law, the provincial law is rendered inoperative by the doctrine of federal paramountcy. [18]

Incorporation through S. 88 of the Indian Act

Subject to various exceptions, s. 88 of the Indian Act incorporates into federal law those provincial laws of general application that would not otherwise apply of their own force because they touch on "Indianness." These are the only laws that s. 88 needs to apply because the other provincial laws of general application apply of their own force. [19]

There is considerable debate, however, over whether s. 88 incorporates into federal law all provincial laws of general application that do not apply of their own force, including those that affect s. 91(24) lands.

Supreme Court of Canada judgments have commented on this issue but have not decisively pronounced on this issue. [20] There are, however, lower court decisions that have concluded that s. 88 does not extend to incorporate provincial laws that affect s. 91(24) lands. [21]

There also appears to be strong academic support for the interpretation that s. 88 does not apply to s. 91(24) lands. [22] Proponents of this view point to the fact that s. 88 only makes reference to "Indians" and makes no mention of "lands reserved for the Indians. "Accordingly, there is a strong likelihood that s. 88 does not incorporate into federal law those provincial laws of general application that affect" lands reserved for the Indians."

Section 88 Exceptions

In addition, a provincial law of general application that invades exclusive federal jurisdiction over "Indians" and "lands reserved for the Indians" is inapplicable if such law falls under any of the following exceptions:

3.2 Do Provincial Water Laws Apply on Reserve?

Whether provincial water laws apply on reserve involves an analysis of the following issues:

  1. Do provincial water laws apply of their own force to "Indians" and "lands reserved for the Indians"? This issue can be broken down into two components:

    1. Is provincial water regulation a law of general application?
    2. Do provincial water laws affect "Indianness"?

  2. If provincial water laws cannot apply of their own force, can they be referentially incorporated into federal law by the application of s. 88 of the Indian Act?

3.2.1 Do Provincial Water Laws Apply of Their Own Force?

The issue of whether provincial water regulation is a law of general application is relatively straightforward and is a matter of less contention: it is a law that extends uniformly throughout the territory and does not single out Indians or Indian reserves for special treatment. The law's application is the same regardless of the location or persons operating the plant.

The more contentious issue is whether the water law can be characterized as affecting "Indianness." The law on this point is not clear. There is no case law that speaks directly to the issue of whether the provincial regulation of water on reserve affects the federal core of "Indianness." Moreover, the scope of "Indianness" itself has yet to be clearly defined. As the Supreme Court of Canada noted in its 2003 decision:

The "core" of Indianness has not been exhaustively defined. It encompasses the whole range of aboriginal rights that are protected by s. 35(1): Delgamuukw, supra at para. 178. For present purposes, it is perhaps more easily defined negatively than positively. The core has been held not to include labour relations (Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031) and highway traffic regulation on reserves (R. v. Francis, [1988] 1 S.C.R. 1025). [23]

Provincial Water Regulation: Intrusion in the Federal Core of "Indianness"?

One can conceivably argue that provincial water regulations do not touch upon "Indianness," as ensuring the safe supply of drinking water and standards for wastewater are matters of public health, which does not inherently relate to being "Indian."

Take, for example, the case of Four B Manufacturing v. United Garment Workers, where the Supreme Court of Canada held that provincial labour law applied to a shoe manufacturing facility located on reserve because there was nothing inherently "Indian" about labour relations. The Court found that the provincial labour law applied, notwithstanding that the business was owned by Indians (albeit through a corporation), operated primarily by Indians, and received funding from the federal government under various INAC programs. [24]

Speaking for the majority, Beetz J.stated that:

In my view, the established principles relevant to this issue can be summarized very briefly. With respect to labour relations, exclusive provincial legislative competence is the rule, exclusive federal competence is the exception. The exception comprises, in the main, labour relations in undertakings, services and business which, having regard to the functional test of the nature of their operations and their normal activities, can be characterized as federal undertakings, services or businesses. [25]

The Court found that the regulation of labour relations in this case does not relate to "Indianness." Rather, the provincial law involves the rights of both Indians and non-Indians to associate with another Indian or non-Indian for labour relations purposes, which do not relate to "Indianness." It involves their relationships with trade unions and issues around collective bargaining powers with an employer who happened to be an Ontario corporation privately owned by Indians, to which, again, there is nothing inherently "Indian." [26]

The Court concluded in this case that the power to regulate labour relations did not affect "an integral part of primary federal jurisdiction over Indians and lands reserved for the Indians." The Court held that this would be the case even if the business had been owned by an Indian (as opposed to a corporation, the shares of which were owned by Indians) and all of the employees were Indian:

But even if the situation is considered from the sole point of view of Indian employees and as if the employer were an Indian, neither Indian status is at stake nor rights so closely connected with Indian status that they should be regarded as necessary incidents of status such for instance as registrability, membership in a band, the right to participate in the election of Chiefs and Band Councils, reserve privileges etc. For this reason, I come to the conclusion that the power to regulate the labour relations issue does not form an integral part of primary federal jurisdiction over Indians or lands reserved for the Indians. [27]

Consider also the case of R. v. Francis, where the Supreme Court of Canada concluded that provincial traffic laws applied to an Indian driving a vehicle on an Indian reserve. As the Court stated:

I shall begin by saying that, in the absence of conflicting federal legislation, provincial motor vehicle laws of general application apply ex proprio vigour on Indian reserves. To hold otherwise would amount to resuscitating the "enclave" theory which was rejected by a majority of this Court in Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695; see also Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031. In Kruger v. The Queen, [1978] 1 S.C.R. 104, this Court held that general provincial legislation relating to hunting applies on reserves, a matter which is obviously far more closely related to the Indian way of life than driving motor vehicles. Indeed Beetz J., speaking for the Court in Dick v. The Queen, [1985] 2 S.C.R. 309, at p. 326, expressly stated that provincial traffic legislation applies to Indians without touching their Indianness. [28]

While there appears to be a compelling argument that the regulation of water, construed as a matter of public health, is a law of general application that does not infringe upon "Indianness," there is an equally persuasive argument that such regulation does in fact infringe upon the federal core of "Indians and lands reserved for the Indians." That argument, as adopted by some courts, is that provincial laws that affect band councils' ability to regulate matters and organize communal affairs on reserve intrude in the federal core of "Indians and lands reserved for the Indians." [29] Since drinking water and wastewater are matters under the auspices of band council, it might be argued that provincial water regulation infringes upon this federal core.

In Whitebear Band Council v. Carpenters Provincial Council Saskatchewan, the Court found that the key distinction from the similar labour law in Four B was that the band council in Four B had no direct interest in the shoe manufacturing business, whereas:

in the present case, the band council is the employer and is directly involved in and responsible for the work in respect of which the employees are engaged; thus, there exists a critical factual distinction between this and Four B. [30]

In Whitebear, the operation in question involved the construction of houses on reserve by band members employed by the band council. [31] The Saskatchewan Court of Appeal held that it was a federal operation which did not come under the jurisdiction of the provincial labour relations board.

The Court analyzed the nature of the band council, noting the similarities between the band council and a municipal council:

As municipal councils are the "creatures" of the Legislatures of the Provinces so Indian Band Councils are the "creatures" of the Parliament of Canada. Parliament in exercising the exclusive jurisdiction conferred upon it by s. 91(24) of the British North America Act to legislate in relation to "Indians and Lands Reserved for the Indians" enacted the Indian Act which provides – among its extensive provisions for Indian status, civil rights, assistance, and so on and the use and management of Indian Reserves – for the election of a Chief and twelve councillors by and from among the members of an Indian Band resident on an Indian reserve. [32]

The Court went on to find that band council activities related to the performance of its local government functions form an integral part of primary federal jurisdiction in relation to "Indians and lands reserved for the Indians":

As I have observed the primary function of an Indian Band Council is to provide a measure of self government by Indians on Indian Reserves. In enacting bylaws to their power to do so, and in performing generally their local government function, an Indian Band Council is doing that which Parliament is exclusively empowered to do pursuant to Section 91(24) of the British North America Act but which Parliament through the Indian Act has delegated Band Councils to do. In this sense the function of an Indian Band Council is very much federal…

Given this, the provisions of the Indian Act to which I have referred, and the origin and nature, purpose and function of an Indian Band Council, I am satisfied that the power generally to regulate the labour relations of a Band Council and its employees, engaged in those activities contemplated by the Indian Act, forms an integral part of primary federal jurisdiction in relation to ‘Indians and Lands Reserved for the Indians' pursuant to Section 91(24) of the British North America Act. [33]

The Court cited, with approval, the Federal Court of Appeal case St. Regis, which came to the same conclusion; namely that activities of a band council concerning the organization and maintenance of communal reserve life are within federal legislative jurisdiction:

The activity consists of certain functions or services performed by or under the supervision of the Band Council, and viewed as a whole it may be characterized as the administration of the Reserve and the affairs of the Band. It is concerned with the organization and maintenance of communal life on the reserve. The Band Council derives its authority for the provision of these functions or services from the terms of the Indian Act and applicable regulations, as well as from administrative approvals by the Department of Indian Affairs and Northern Development which establishes programs for the reserves and provides the necessary financial resources for their implementation. The Band Council is carrying out some of the administration that inheres in federal jurisdiction with respect to the reserves. [34]

Consider also the case of Paul Band v. R. where the issue was whether employees of a band council who acted as special police constables within the reserve came under provincial labour relations legislation. The Alberta Court of Appeal held that the employees were carrying on normal operations or activities of the band council under the authority of the Indian Act, which constituted a federal undertaking or business. Thus, the provincial labour relations legislation had no application. [35]

In the case of Pikangikum First Nation v. Canada (INAC), the Federal Court considered a judicial review of a decision by INAC requiring Pikangikum to enter into a co-management agreement with INAC, failing which the Department would withhold funding and directly render the services itself, including the operation of the water treatment plant. [36]

The Court, in determining the level of procedural fairness required in this situation, found that this decision is one that is "very important to the applicant (Pikangikum First Nation) as it basically takes away the applicant's right to manage its affairs." [37] The Court held that the mere announcement of the co-management requirement was insufficient and that the Minister had to give sufficient detail to Pikangikum about the deficiencies so that the band could respond

These cases reflect acceptance of the argument that the ability of a band council to manage its communal affairs on reserve forms an integral part of primary federal jurisdiction over "Indians and lands reserved for the Indians." Courts have not, generally, supported the application of provincial laws in cases that would affect this ability. This strongly suggests that provincial water regulation would not apply on reserves of its own force.

Provincial Water Regulation: An Intrusion in "Lands Reserved"?

Matters are further complicated since provincial water regimes generally include measures that affect land use such as emergency powers to shut down facilities or regulations on source water protection. Such regulatory elements run the risk of intruding on federal jurisdiction to regulate "lands reserved for the Indians."

As the Supreme Court of Canada held in Derrickson v. Derrickson, "the right to possession of lands on an Indian reserve is manifestly of the very essence of the federal exclusive legislative power under s. 91(24) of the Constitution Act, 1867" and that valid provincial legislation "dealing with the right of ownership and possession of immoveable property…cannot apply to lands on an Indian reserve." [38]

What, however, is the scope of "lands reserved for the Indians"?

As Kerry Wilkins noted in his article Negative Capacity, cases establish that "a core of exclusive federal power over lands reserved is already unusually broad: a core that encompasses ownership, use, possession, occupation and disposition of lands that are subject to aboriginal interests." [39]

The Supreme Court of Canada in Derrickson cited, with approval, Kenneth Lysyk's observation that "the matters contained within exclusive federal authority over Indian reserve lands [presumably] include regulation of the manner of land-holding, disposition of interests in reserve lands and how reserve lands may be used (e.g., zoning regulations)." [40]

In the case of District of Surrey v. Peace Arch Enterprises Ltd., the Court held that municipal zoning bylaws and Health Act regulations did not apply on reserve because they purport to regulate land use:

It seems to me that the first thing that must be determined here is whether the lands in question here are "lands reserved for the Indians" within the meaning of that expression appearing in s. 91(24) of the BNA Act, 1867.

If the answer to that is in the affirmative, then one must ask whether there is any room for provincial and municipal legislation which purports to regulate how land shall be used and what types of buildings may or may not be erected on that land. The zoning bylaws of the municipality do spell out very explicitly the manner in which land can and cannot be used, and the same may be said of the regulations under the Health Act of the province.

In my view the zoning regulations passed by the municipality, and the regulations passed under the Health Act, are directed to the use of the land. It follows, I think, that if these lands are "lands reserved for the Indians" within the meaning of that expression as found in s. 91(24) of the B.N.A. Act, 1867, that provincial or municipal legislation purporting to regulate the use of these "lands reserved for the Indians" is an unwarranted invasion of the exclusive legislative jurisdiction of Parliament to legislate with respect to "lands reserved for the Indians." [41]

The broad scope of exclusive federal power over reserve lands brings into question the applicability of these crucial aspects of a drinking water regime. Such provincial regulatory powers can arguably be construed as interfering with the First Nation's possession, occupation and use of reserve lands, which in turn would intrude in the federal core of "lands reserved for the Indians."

3.2.2 Saved by s. 88 of the Indian Act?

If provincial water regulation cannot apply of its own force, the question becomes whether the water regulation could apply through referential incorporation under s. 88 of the Indian Act.

Provincial laws which would otherwise not apply to Indians of their own force are allowed to do so by virtue of s. 88 of the Indian Act. [42] Beetz J. in Dick v. The Queen held that s. 88 applies to provincial laws that affect "Indianness" by impairing the status or capacity of Indians.

It is, however, questionable whether provincial water laws could be incorporated by s. 88 if the water laws affect "Indianness" by purporting to regulate land use through a source protection regime or emergency power orders.

Provincial Water Regulation Falls Under An Enumerated Exception?

For s. 88 to apply, the provincial water regulation must also not fall under any of the enumerated exceptions.

Section 88 is expressly subject to "any other Act of the Parliament of Canada" so that any conflict between a federal statute and a provincial law of general application is to be resolved in favour of the federal statute.

There are currently no federal laws or regulations expressly dealing with water and wastewater treatment facilities on reserve. There are only guidelines and policy manuals, such as the Guidelines for Canadian Drinking Water Quality (March 2006).

In addition, s. 88 also does not apply if there is a provision in the Indian Act on the same matter, even if the provincial law is not in direct conflict with the Indian Act; s. 88 applies "except to the extent that such laws make provision for any matter for which provision is made by or under this Act." [43]

The issue then becomes whether the Indian Act can be construed as "making provision" for water regulation and thus can be said to "occupy the field," as it contains regulation and band bylaw making powers, albeit unexercised, on the same subject matter:

To date, no regulation has been passed relating to water or wastewater matters.

However, it appears that the Indian Act, in conferring powers to make regulations or bylaws about certain matters, is unlikely, on its own, to displace s. 88 incorporated provincial regulation.

In the case of R. v. Martin, the Court considered the applicability of the provincial Game and Fish Act and the sections in the Indian Act providing that the Governor in Council and band council may make regulations and bylaws to govern the control and management of game and fish on reserves. [46]

The Court held that providing a mechanism whereby a field might be occupied is different than actually occupying the field. As the Court held in R. v. Martin, to "make provision" as is contemplated by s. 88 is to create a substantive scheme or arrangement with respect to it, not merely to pass legislation authorizing regulations or bylaws about it:

I agree fully with the Crown's submission that to "make provision" as is contemplated by s. 88 is to create a substantive scheme or arrangement. In this case, neither the Governor in Council nor the Band Council have enacted any regulations or by-laws pursuant to the powers given to them under the Indian Act. Since they haven't taken up those powers, no substantive arrangement has been made. Sections 73(1)(a) and 1(o) in effect ‘make provision for the making of a provision' for wildlife management on reserves. To the extent that the Game and Fish Act does that, it is applicable. [47]

The Court concluded that since no regulations or bylaws have been enacted, the Game and Fish Act applies.

These cases suggest that when the federal government, or the band council, exercises those powers and passes a regulation or bylaw on water and wastewater that the provincial regulation may be displaced.

3.3 Summary of Legal Issues

Below is a summary of the legal issues associated with attempting to apply provincial drinking water law as a law of general application.

3.3.1 Uncertainty in the application of provincial laws of general application

The vague and undefined scope of "Indianness," the question of whether provincial water regulation intrudes in the federal core, the applicability of s. 88 and whether it extends to apply to provincial regulation affecting reserve lands – these are all matters for which we do not have clear definitive answers.

3.3.2 Possibility of provincial laws being displaced where band bylaws exist

Even if the provincial water regulation may apply through s. 88, the fact that the provincial regulation could potentially be displaced where a band has enacted a bylaw dealing with water and wastewater matters is highly problematic. This could effectively lead to a situation in which some reserves operate under provincial regulation while others cannot because the regulation has been displaced by band bylaws.

3.3.3 Issues with source protection and issuing emergency orders

There are issues with the applicability of source protection laws since they inevitably regulate land use. Moreover, powers to issue emergency orders shutting down a facility or to appoint interim operators are also questionable since those powers arguably have a land use aspect. Whether these regulations may be saved by s. 88 is also unknown until challenged in court.

These complexities and legal uncertainties create tremendous difficulties in determining whether provincial water laws apply on reserve. Until the courts provide such guidance, the possibility remains that the provincial water law is inapplicable on reserve as a law of general application. Such unpredictability renders this option essentially untenable.

Footnotes:

  1. Hereinafter referred to as "water regulation". (return to source paragraph)
  2. Constitution Act, 1867 supra note 2. For a discussion on this topic, see Hogg, supra note 2. (return to source paragraph)
  3. See Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010 (S.C.C.) [hereinafter Delgamuukw]. (return to source paragraph)
  4. Delgamuukw, ibid. In Delgamuukw, the Supreme Court of Canada confirmed that Aboriginal title lands, like Indian Act reserves are for constitutional purposes "lands reserved for the Indians". (return to source paragraph)
  5. Indian Act, supra note 4 at s. 88. (return to source paragraph)
  6. Indian Act, ibid. (return to source paragraph)
  7. R. v. Francis, [1988] 1 S.C.R. 1025 (S.C.C.) [hereinafter Francis]; Cardinal v. Attorney-General of Alberta, (1973) 40 D.L.R. (3d) 553 (S.C.C.) [hereinafter Cardinal]; Four B Manufacturing Ltd. v. United Garment Workers, [1980] 1 S.C.R. 1031 (S.C.C.) [hereinafter Four B]. (return to source paragraph)
  8. Cardinal, ibid. Dick v. The Queen, [1985] 2 S.C.R. 309 (S.C.C.) [hereinafter Dick]; See also Hogg, supra note 2 at 671-677. (return to source paragraph)
  9. Delgamuukw, supra note 10. (return to source paragraph)
  10. See R. v. Sutherland, [1980] 2 S.C.R. 451 (S.C.C.) [hereinafter Sutherland]. (return to source paragraph)
  11. Hogg, " note 2 at 671. (return to source paragraph)
  12. Dick, supra note 15. (return to source paragraph)
  13. In Cardinal, supra note 14, Laskin J. dissenting on other grounds concluded that s. 88 "deals only with Indians, not with Reserves". The majority did not consider this issue. In Derrickson, infra note 38, the Court reviewed the arguments for the two positions but did not conclude on the matter. (return to source paragraph)
  14. See Re Park Mobile Home Sales and Le Greely (1978), 85 D.L.R. (3d) 618 (B.C.C.A.) [hereinafter Park Mobile]; Reference re Stony Plain Indian Reserve No. 135 (1981), 130 D.L.R. (3d) 636 (Alta. C.A.) [hereinafter Stony Plain]; R. v. Martin (12 August 1985), (Ont. Dist. Ct.) [unreported] [hereinafter Martin]; Stoney Creek Indian Band v. British Columbia, [1999] 1 C.N.L.R. 192 (B.C.S.C.) [hereinafter Stoney Creek]. (return to source paragraph)
  15. For a discussion on this issue, see K. Wilkins, Negative Capability: Of Provinces and Lands Reserved for the Indians, Indigenous Law Journal, Vol. 1, Spring 2002 at 57-111 [hereinafter Negative Capability]. (return to source paragraph)
  16. Paul v. British Columbia (Forest Appeals Commission) [2003] S.C.R. No. 585 (S.C.C.) at para. 33 [hereinafter Paul]. (return to source paragraph)
  17. Four B, supra note 14. (return to source paragraph)
  18. Four B, ibid. at 1046. (return to source paragraph)
  19. Four B, ibid. at 1048. (return to source paragraph)
  20. Four B, ibid. at 1047-1048. (return to source paragraph)
  21. Francis, supra note 14 at para. 4. (return to source paragraph)
  22. Whitebear, supra note 3. Westbank First Nation v. British Columbia (Labour Relations Board), [1997] B.C.J. No. 2410 (B.C.S.C.) [hereinafter Westbank]; Paul Band v. R., [1984] 2 W.W.R. 540 (Alta C.A.) [hereinafter Paul Band]; Sagkeeng Alcohol Rehab Centre Inc. v. Abraham, [1994] 3 F.C. 449 (F.C.T.D.) [hereinafter Sagkeeng]. (return to source paragraph)
  23. Whitebear, ibid. at para. 27. (return to source paragraph)
  24. Whitebear, ibid. (return to source paragraph)
  25. Whitebear, ibid. at para. 13. (return to source paragraph)
  26. Whitebear, ibid. at para. 28. (return to source paragraph)
  27. Whitebear, ibid. citing Francis et al v. Canada Labour Relations Board et al, (1981) 1 F.C. 225 (F.C.A.). (return to source paragraph)
  28. Paul Band, supra note 29. (return to source paragraph)
  29. Pikangikum First Nation v. Canada (Minister of Indian and Northern Affairs), [2002] F.C.J. No. 1701 (F.C.T.D.) [hereinafter Pikangikum]. (return to source paragraph)
  30. Pikangikum, ibid. at 100. (return to source paragraph)
  31. Derrickson v. Derrickson, [1986] 1 S.C.R. 285 (S.C.C.) [hereinafter Derrickson]. (return to source paragraph)
  32. See Negative Capacity, supra note 22 at 71. (return to source paragraph)
  33. Derrickson, supra note 38 at 295, citing K.M. Lysyk, Q.C., Constitutional Developments Relating to Indians and Indians Lands: An Overview, [1978] LS.U.C. Special Lectures 2001-228 at 227 [hereinafter Constitutional Developments]. (return to source paragraph)
  34. District of Surrey v. Peace Arch Enterprises Ltd., [1970] B.C.J. No. 538 (B.C.C.A.) at para. 11-13 [hereinafter Peace Arch]. (return to source paragraph)
  35. Dick, supra note 15. (return to source paragraph)
  36. Indian Act, supra note 4. (return to source paragraph)
  37. Indian Act, ibid. at s. 73(1(k). (return to source paragraph)
  38. Indian Act, ibid. at s. 81(1)(l). (return to source paragraph)
  39. Martin, supra note 21. See also R. v. Charles, [1998] 1 W.W.R. 515 (Sask. Q.B.) [hereinafter Charles]. For a helpful discussion, see K. Wilkins, Still Crazy After All These Years: Section 88 of the Indian Act at Fifty, (2000) 38 Alta. L. Rev. at 79-93 [hereinafter Still Crazy]. (return to source paragraph)
  40. Martin, supra note 21 at 13. (return to source paragraph)
Previous Table of Contents Next