The good news is that First Nation by-laws no longer need approval from the Minister of Indian Affairs in order to become law. The not-so-bad news is that First Nation by-laws now need to be published.
These changes took effect on December 16, 2014 when Bill C-428, An Act to Amend the Indian Act, SC 2014 c 38 was given Royal Assent. Under Bill C-428, section 82 of the Indian Act was repealed doing away with the need for approval from the Minister. Under amended section 86(4) of the Indian Act by-laws now become legally effective once they are “published” unless a by-law itself states that it comes into force on a different date. The previous s. 82(2) of the Indian Act provided that a by-law did not come into force for 40 days after it was submitted to the Minister for approval.
All First Nation by-laws must now be “published” so that everyone is aware of them. How do you “publish” a by-law? In one of three ways: in the First Nations Gazette, on the First Nation’s website or in a local newspaper which is sold in the First Nation’s community. It’s up to Council to decide which of the three methods to use.
Since a by-law only comes into force and can only be enforced if it has been published, it is crucial that by-laws be published as soon as they are passed. It is also critical that Council has proof of the date and method of publication.
I would recommend publication in three places: the First Nations Gazette , the First Nation’s newspaper and on the First Nation’s own website. Publishing in the First Nations Gazette will provide a record of the date and time of publication. It’s also free and can be done on line at http://www.fng.ca/ with ease.
However, while this creates a permanent public record and allows the by-law to be accessed by the public through the First Nations Gazette’s website, not all members of the First Nation are aware of the First Nations Gazette and may find it difficult to search for the by-law on the First Nations Gazette website.
For this reason I would recommend having a By-Laws section published in your First Nation’s newspaper (if you have one and if not a local Aboriginal run paper) and on your First Nation’s own website where members can easily find and view all by-laws.
Why not just post the by-law on the First Nation’s web site and forget about the First Nations Gazette? Because proving that something was posted to a website requires more time and documentation and because under section 86(5) of the Indian Act a by-law published on the Internet must remain on the website at all times that the by-law is in force. That could be a long time. If a by-law is accidently deleted or a website goes down for a long period of time, enforcement of the by-law may run up against an argument that the by-law was not in force because it was not published as required by the Act at the time of the by-law violation.
So after going through the hard work of drafting, debating and voting on a by-law, don’t let it sit and collect dust – publish it in the First Nations Gazette , in your community newspaper and on your community’s website.
Some lawyers may argue that all by-laws (even those previously passed) need to be published under the new amendments to the Indian Act. This is not the case, but if you are going to create a by-law section of your website, I’d suggest putting all by-laws there – old and new. After all it is the right of every member to know what by-laws they must comply with and any responsible self-government would be wise to do so.