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Manitoba Aboriginal and Northern Affairs


Manitoba Treaty Land Entitlement

A reference manual for municipal development and services agreements

V. Compatible by-laws

  1. Why are compatible by-laws needed?
  2. What is compatibility?
  3. In what areas is compatibility needed?
  4. Methods of developing compatible by-laws
  5. Administration of compatible by-laws

A MDSA should provide a mechanism for the development, adoption and enforcement of compatible Entitlement First Nation and Municipal by-laws where compatibility is necessary.

It is important for Municipalities to be aware that First Nation Band Councils usually exercise their authority by passing Band Council Resolutions. They also less frequently enact by-laws. In order for a by-law to be "in force", for by-laws relating to money, a First Nation must seek approval of the by-law from the Minister of Indian Affairs and Northern Development; in respect of other by-laws (see Appendix B of this Reference Manual for a listing of matters on which a First Nation may enact a by-law) the First Nation must forward the by-law to the Minister and it must not be "disallowed" by him (Indian Act ss. 82,83(4)). Municipalities should bear this in mind when negotiating the issue of compatible by-laws with First Nations.

1. Why are compatible by-laws needed?

Sections 2 and 229 of The Municipal Act provide:

Indian Reserves Excluded

  1. Despite any Act of the Legislature,
    1. land within an Indian Reserve is not part of the area of any municipality;
    2. persons residing within an Indian Reserve are not residents of any municipality; and
    3. any description of the boundaries of a municipality is deemed to provide that land within an Indian Reserve is excluded from the municipality.

Geographic application of by-laws

  1. A by-law of a municipality applies only within its boundaries unless
    1. the municipality agrees with another municipality that a by-law passed by one has effect within the boundaries of the other and the council of each municipality passes a by-law approving the agreement; or
    2. this or any other Act provides that the by-law applies outside the boundaries of the municipality.

Similarly, section 1.1 of The Local Government Districts Act, C.C.S.M. c. L190 provides:

Indian Reserves Excluded

  1. Despite any Act of the Legislature,
    1. land within an Indian Reserve is not part of the area of any local government district;
    2. persons residing within an Indian Reserve are not residents of any local government district; and
    3. any description of the boundaries of a local government district is deemed to provide that land within an Indian Reserve is excluded from the local government district.

A local government district has the same right, power and duty as a Municipality or Municipal corporation to pass by-laws under The Municipal Act, subject to the approval of the minister (The Local Government Districts Act, s. 5 (1)(b), 5(2)(b)).

Thus, when Municipal land is Selected or Acquired by an Entitlement First Nation and is set apart as Reserve, Municipal by-laws that would have applied to the Municipal land and residents had the land remained part of the Municipality, no longer apply to the Reserve land and its residents. Instead, the Entitlement First Nation has jurisdiction over the Reserve lands as allowed by the Indian Act. The Indian Act provides that an Entitlement First Nation has the power to pass by-laws to govern development and activities on the Reserve. A band council is authorized to make by-laws that are not inconsistent with the Indian Act or its regulations (s. 81(1)).

However, the Indian Act does not require a band council to make by-laws that are compatible with neighbouring municipalities. Thus, an Entitlement First Nation may enact by-laws for various purposes, such as land use and development, the regulation of businesses, keeping of animals, environmental protection and public safety that differ from and perhaps even conflict with those of the neighbouring Municipality.

The need for by-law compatibility is not a new concept for Municipalities. Municipalities need by-law compatibility with neighbouring Municipalities. The Planning Act, C.C.S.M. c. P80 sets out a process to enable two or more neighbouring Municipalities to co-ordinate their approaches to land use and development. The rationale for a co-ordinated approach by Municipalities to land use was discussed by Bill Lye in a paper entitled "Developing Effective Land Management Strategies On and Off Reserves" presented at the Aboriginal Land Management and Property Development Strategies Conference, May 25-26, 2000 (at 6):

Municipal governments have found that there is an interdependency between them and they must collaborate and collectively manage regional land use planning and economic development, transportation, sewer, water, waste management, and to some degree policing…. Land use is the issue that continues to be most contentious. Conflicts often arise in situations where there are incompatible uses on community borders and on the issue of growth and density concentration.

Where a Reserve is located in an Urban Area, the close proximity and density of development increases the potential for problems and disputes if the Band by-laws and Municipality by-laws are significantly different. A compelling reason for an Entitlement First Nation to work with a neighbouring Municipality to achieve compatibility of land use by-laws is that experience has shown that First Nations who work with their neighbours' planning objectives achieve the greatest economic development successes (Lye, at 7).

In addition, as mentioned earlier, the Additions to Reserves Policy provides that "band by-laws which relate to activities which may affect neighbouring municipal lands or residents should be consistent with the municipality's by-laws" (Additions to Reserves Policy, s. 9.3.2.2, para. 1).

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2. What is compatibility?

Compatibility does not mean that the by-laws of a Municipality and Entitlement First Nation must be the same. By-laws will be compatible if they achieve goals and objectives that are acceptable to the Municipality and Entitlement First Nation.

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3. In what areas is compatibility needed?

The need for compatible by-laws depends on local circumstances. Each party should identify existing by-laws and compare them to those of the other party to determine how well they fit together. In addition, the authority of each party to pass by-laws must be reviewed, since (as mentioned earlier) the authority of each party to pass by-laws is limited by statute.

An Entitlement First Nation has the power to make by-laws on a wide variety of matters pursuant to subsection 81(1) of the Indian Act (see Appendix B to this Reference Manual). An Entitlement First Nation can also make by-laws relating to taxation for local purposes of land or interests in land in the reserve, licensing of businesses, callings, trades and occupations, as well as other money by-laws, subject to the approval of the Minister of Indian Affairs and Northern Development (Indian Act, s. 83(1)(a) and (a.1) – see Appendix B to this Reference Manual).

A Municipality obtains its authority to make by-laws from Part 7 of The Municipal Act. Subsection 232 (1), within Part 7, sets out those matters on which a Municipality may enact by-laws (see Appendix A to this Reference Manual). Greater specificity with regard to the authority of the Municipality to make by-laws is provided in other sections of Part 7 of The Municipal Act.

As mentioned above, a local government district is authorized to pass by-laws under The Municipal Act, with the approval of the minister (The Local Government Districts Act, s. 5(1)(b) and 5(2)(b)).

A review of these statutory provisions indicates that there are many areas in which both Municipalities and Entitlement First Nations can enact by-laws. Areas in which the parties may wish to try to achieve compatibility in their by-laws are:

  • land use or zoning standards for use of land (what activities are allowed on particular pieces of land),
  • land development standards: lot sizes, width of streets and sidewalks, servicing standards such as size of water and sewer pipes (to ensure the development is similar in quality, functionality and general appearance to the surrounding areas),
  • building and safety standards: quality of construction, fire safety, permits, inspection (how buildings must be built to safeguard the occupants and neighbours),
  • animal control: keeping of animals, animals running at large,
  • public utilities: connection to water and sewer, design specifications,
  • health and safety: ambulance, fire and policing, environmental standards, building inspections,
  • traffic regulation: speed, parking, signs,
  • business licensing and operation: fees, permits, store hours, and
  • property maintenance and upkeep, including weed control.

Appendices A and B to this Reference Manual identify some legislation that govern topics that may be of mutual interest to a Municipality and Entitlement First Nation.

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4. Methods of developing compatible by-laws

Without ongoing communication between the Entitlement First Nation and Municipality, it is likely that there will be conflicting developments and disputes. Thus, the Municipality and Entitlement First Nation should establish a consultation process for the development and adoption of their by-laws. Options for mechanisms to develop and adopt compatible by-laws include a joint by-law committee, planning district commission approach and notification process. Where a Selection or Acquisition is located in a rural area, the parties may consider the simpler "notification process" to be more appropriate than the other processes.

A. Joint By- law Committee

An Entitlement First Nation and Municipality could establish a Joint By-law Committee made up of representatives of each council and an independent person jointly agreed upon by both parties to act as Chairperson.

The Joint By-law Committee could perform the following duties:

  • provide recommendations on areas where compatible by-laws are needed,
  • develop guidelines on content of compatible by-laws,
  • review existing Municipal and Entitlement First Nation by-laws, if any, to determine compatibility,
  • review proposed Municipal and Entitlement First Nation by-laws prior to their adoption to determine compliance with guidelines and to identify conflicts, and
  • advise both councils in writing of concerns and recommend changes.

Where a council does not wish to change an existing or proposed by-law, the matter could be submitted to a dispute resolution process.

The advantages of this option are, it:

  • provides for an independent review of by-laws,
  • ensures ongoing dialogue between the parties, and
  • can function as an initial dispute resolution process.

The disadvantages of this option are:

  • it is slower due to referrals and consultation,
  • it may result in added costs, and
  • there is no legislation in place to ensure compliance with policies.

Provisions such as the following demonstrate how a Joint By-law Committee can be established to review a Municipality's and Entitlement First Nation's by-laws to ensure the development of compatible by-laws:

Formation of Joint By-law Committee

The Municipality and Entitlement First Nation shall form a Joint By-law Committee within thirty (30) days of the date of execution of this Municipal Development and Services Agreement.


Composition of Joint By-law Committee

The Joint By-law Committee shall be comprised of the following members:

  1. three (3) representatives from the Entitlement First Nation appointed by the Chief and Council;
  2. three (3) representatives from the Municipality appointed by resolution of the Municipal Council; and
  3. one (1) independent person appointed by agreement of the parties.

If the parties cannot agree on the appointment of the independent person within seven (7) days of the date of execution of this agreement, then either party may apply to the Court of Queen's Bench for the appointment to be made by a Judge of that court.

The independent person shall act as Chairperson of the Joint By-law Committee.


Term of Office of Representatives of Parties on Joint By-Law Committee

  1. Each of representatives of the parties on the Joint By-law Committee shall be appointed to the Committee for a term that is not less than one year and not more than three years from the date of appointment, and any person so appointed shall be eligible for re-appointment.
  2. The members who are representatives of the parties shall serve until:
    1. his or her term of appointment or re-appointment expires;
    2. he or she dies;
    3. he or she resigns; or
    4. he or she is declared incapable of managing his or her own affairs by a Court of competent jurisdiction.

Term of Appointment of Chairperson and Vacancy

  1. The Chairperson shall be appointed on terms and conditions, including remuneration as the parties may agree, for a term of two years from the date of appointment and any person so appointed shall be eligible for re-appointment.
  2. A Chairperson shall serve until:
    1. his or her term of appointment or re-appointment expires;
    2. he or she dies;
    3. he or she resigns;
    4. he or she is declared incapable of managing his or her own affairs by a Court of competent jurisdiction; or
    5. the parties agree in writing to withdraw his or her appointment.

Mandate of Joint By-law Committee

The Joint By-law Committee shall:

  1. provide recommendations to the Municipality's and the Entitlement First Nation's Councils on areas where compatible by-laws are needed,
  2. review existing Municipal and Entitlement First Nation by-laws to determine compatibility,
  3. develop guidelines on content of compatible by-laws,
  4. review all proposed Municipal and Entitlement First Nation by-laws to determine compliance with guidelines and to identify conflicts before adoption, and
  5. advise both Councils in writing of concerns in respect of existing by-laws and proposed by-laws and recommend changes that will result in by-law compatibility.

The Joint By-law Committee shall determine who, as between the Entitlement First Nation and the Municipality, will provide administrative services to the Joint By-law Committee.


Amendment of Joint By-law Committee Procedures

The parties may, from time to time, make and amend rules to govern the procedures of the Joint By-law Committee, provided that:

  1. all members of the Joint By-law Committee shall be given notice of each meeting of the Joint By-law Committee;
  2. all members of the Joint By-law Committee shall attend all meetings, either in person, by telephone or by another method of communication that permits each member to communicate with all other members at the meeting;
  3. all decisions and actions of the Joint By-law Committee shall be in accordance with the majority vote of the members of the Joint By-law Committee;
  4. the Chairperson shall not be entitled to vote on any resolution before the Joint By-law Committee, except that in the event of a tie, the Chairperson shall cast the deciding vote;
  5. minutes of all meetings of the Joint By-law Committee shall be recorded and circulated to each of the members of the Joint By-law Committee and signed by the Chairperson.

Costs of Joint By-law Committee

Each party shall assume the costs of its representatives on the Joint By-law Committee and shall share equally in the costs of the Chairperson and any other general expenses of the Joint By-law Committee.

In the alternative, the parties may wish to use a Joint By-law Committee only to ensure that a proposed development or business on the Selection or Acquisition complies with the Municipality's by-laws. If this option were adopted, the above provisions could be used except that the following provisions would replace the section headed "Formation of Joint By-law Committee":

Notice of Development

The Entitlement First Nation shall provide written notice to the Municipality of its intentions to:

  1. develop and construct buildings or undertake improvements upon the Selection/Acquisition, or both; or
  2. conduct a new business enterprise upon the Selection/Acquisition; or
  3. do both (a) and (b).

The Municipality shall provide written notice to the Entitlement First Nation of its intentions to:

  1. develop and construct buildings or undertake improvements upon the land adjacent to the Selection/Acquisition; or
  2. conduct a new business enterprise upon the land adjacent to the Selection/Acquisition; or
  3. do both (a) and (b).

Formation of Joint By-law Committee

The Municipality or Entitlement First Nation, as the case may be, may, within fourteen (14) days of receiving the notice referred to in the Section headed "Notice of Development", provide written notice to the other party requesting that the Entitlement First Nation and Municipality form a Joint By-law Committee to review the intended development, improvement or business enterprise in detail. The notice shall also name the persons appointed by the Municipality or the Entitlement First Nation, as the case may be, to serve as members on the Joint By-law Committee.

In addition, the following provision would substitute for "Mandate of Joint By-law Committee":

Mandate of Joint By-law Committee

The Joint By-law Committee shall review the Municipality's by-laws or the Entitlement First Nation's by-laws, as the case may be, to determine whether the intended development, improvement or business enterprise is compatible with the Municipality's or Entitlement First Nation's by-laws respecting:

  1. development and construction of buildings and improvements;
  2. zoning; and
  3. classification, regulation and licensing of businesses;

in existence at the time of the review. The Joint By-law Committee shall proceed with its review as soon as practicable, and shall put the matter under review to a vote of the Committee within two (2) weeks of its meeting at which the matter was first reviewed, unless such period is extended by agreement of the Municipality and Entitlement First Nation.

In addition, the following provision would be added:

Approval of Joint By-law Committee

The intended development, improvement or business may proceed:

  1. where the Entitlement First Nation or Municipality does not provide notice to the other party pursuant to the Section headed "Formation of Joint By-law Committee" requesting the formation of a Joint By-Law Committee; or
  2. upon the prior written approval, by a simple majority, of the Joint By-law Committee.

The parties may wish to define what they mean by "adjacent to the Selection/Acquisition" in the context of the above provisions.

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B. Planning District Commission

As mentioned earlier, a planning district board established pursuant to The Planning Act enables two or more Municipalities to co-ordinate land use and development planning where the Municipalities have common social and economic interests and values, and common planning concerns. The scheme under The Planning Act is not applicable to an Entitlement First Nation and Municipality with common interests, as a "band council" is not an organization within the definition of "municipality" for purposes of the Act.

However, an Entitlement First Nation and Municipality can agree to adopt and codify a similar approach to that set out in The Planning Act in their MDSA. In other words, a board or commission could be established with a mandate to develop a comprehensive land use and development plan (Plan) that encompasses both the Municipal and Reserve lands. The Plan could address issues such as:

  • land use and development,
  • the environment,
  • servicing,
  • infrastructure,
  • finances, and
  • economic development.

If the Plan is acceptable to the Municipality and Entitlement First Nation, the parties would each enact separate by-laws accepting the Plan. After the Plan is accepted, the parties would be required to enact only those by-laws that are consistent with the policies contained in the Plan. Changes to the Plan could be made only on the recommendation of the Planning District Commission. Duties of the Planning District Commission would be similar to those of a Joint By-law Committee.

The advantages of this option are:

  • it ensures ongoing dialogue, and
  • it provides for day-to-day administration of the parties' by-laws.

The disadvantages of this option are:

  • it is a slower process due to the need for referrals and consultation,
  • higher costs to the parties if staff are hired, and
  • there is no legislation in place to ensure compliance with the policies contained in the Plan.

The following provisions, which follow the scheme set out in The Planning Act, could be used to establish a Planning District Commission:

Establishment of Planning District Commission

The Municipality shall, within thirty (30) days of the date of execution of this Municipal Development and Services Agreement, provide written notice to the Entitlement First Nation calling for the formation of a Planning District Commission (the "Commission") of the parties.

Composition of Commission

The Commission shall be comprised of:

  1. three (3) representatives from the Entitlement First Nation appointed by the Chief and Council; and
  2. three (3) representatives from the Municipality appointed by the Municipal Council.

Term of Office of Commission members

The term of office of a Commission member shall run concurrently with his or her term on Council, unless the Council nominates an alternate Council member to take that member's place on the Commission.

Meetings of the Commission

The Commission shall meet at such times and places as are fixed from time to time by the rules of the Commission.

Quorum

A majority of the members of the Commission constitute a quorum for the transaction of business.

Chairperson

The Commission shall, at its first meeting, elect a chairperson from its members.

Voting by Chairperson

The Chairperson shall be entitled to cast a vote as a member of the Commission. In the event of a tie vote, a resolution shall be deemed to be lost.

Majority Vote

All resolutions at a Commission meeting shall be decided by a majority vote.

Rules and Procedures

The Commission may enact rules and procedures that are not contrary to law

  1. governing its proceedings and the conduct of its affairs and business;
  2. respecting the calling of meetings of the Commission; and
  3. prescribing and regulating the fees and charges to be paid by any person in respect of services rendered by any officer or employee of the Commission;

and may enact other rules as may be necessary to discharge its duties and functions.

Recording

Every resolution of the Commission shall be recorded in the minutes and signed by the Chairperson.

Staff

The Commission may employ such officers and employees as may be necessary and may fix their remuneration.

Responsibilities of the Commission

The Commission shall

  1. prepare and adopt a development plan (Plan) and any amendments to the Plan;
  2. request the advice and assistance of the Municipal Council and Entitlement First Nation Council in preparing the Plan or any amendment thereto;
  3. review and co-ordinate policies and programs relating to the use of land within the Municipality and the Selection/Acquisition;
  4. perform such other duties as may be delegated to it by the Municipality or the Entitlement First Nation; and
  5. prepare and submit to the Municipality and the Entitlement First Nation an annual report of its activities and an operating budget for the next ensuing fiscal year.

Preparation of Plan

The Commission shall prepare and adopt a Plan for the Municipality and Entitlement First Nation that is designed to promote the optimum economic, social, environmental and physical condition of the Municipality and Selection/Acquisition, and which shall

  1. serve as a framework whereby the Municipality and the Entitlement First Nation may be guided in formulating development policies and decisions;


  2. identify the factors relevant to the use and development of land;


  3. identify the critical problems and opportunities concerning the development of land and the social, environmental and economic effects;


  4. set forth the desired timing, patterns and characteristics of future development of land and determine the probable social, environmental and economic consequences;


  5. establish and specify the programs and actions necessary for the implementation of the Plan;


  6. outline the methods whereby the best use and development of land and other resources in the Municipality and Selection/Acquisition may be co-ordinated; and


  7. identify those matters of government concern which affect the use and development of land and other resources within the Municipality and the Selection/Acquisition.


Consultation

In order to obtain participation by the residents of the Municipality and Entitlement First Nation on issues affecting the development of the area, the Commission shall

  1. consult a qualified planning officer or consultant and any public authority affected by a Plan; and
  2. hold one or more public meetings and publish information on issues affecting the development of the Municipality and the Selection/Acquisition.

Studies and Surveys

The Plan shall be prepared on the basis of studies and surveys of land use which are appropriate for the Municipality and Selection/Acquisition and may include considerations relating to agriculture, forestry, wildlife, mineral extraction, population growth, the economic base of the area, its transportation and communication needs, public services, social services, the capacity of the natural resources and environment to accommodate development, and any other matter related to the present or future physical, social or economic factors relevant to the preparation of the Plan.

Consultation with Councils

Before adopting a Plan, the Commission shall consult with the Councils of the Municipality and the Entitlement First Nation.

Contents of Plan

The Plan shall contain,

  1. statements of objectives and policies with respect to some or all of the following matters:
    1. the development and use of land and other resources,
    2. the conservation, management and improvement of the physical and social environment,
    3. the control and abatement of all forms of pollution or activities deemed to be detrimental to the natural environment,
    4. the establishment and maintenance of land banks to reserve land for future use and to ensure the orderly, economical, convenient and compatible development of land,
    5. the preservation, protection or enhancement of areas of land, buildings and structures by reason of their historical, archaeological, geological, architectural, environmental or scenic significance or character,
  2. proposals relating to the use, changes in use or intensity of use of residential, commercial, industrial, recreational and open spaces, institutional, and other activities on or affecting land,
  3. the provision of public services and facilities including,
    1. sewage collection, treatment and disposal,
    2. water supply and distribution,
    3. garbage disposal,
    4. educational and cultural institutions,
    5. recreational facilities, parks, playgrounds and other public open spaces,
    6. fire and police facilities,

Transportation and communication facilities

  1. facilities for the provision of health and social services,
  2. preservation of buildings, structures, sites and areas of historical interest,
  3. proposals dealing with
    1. the control of hazard areas such as flood plains, soil erosion areas, perma-frost areas, erosion prone slope lands, valleys and banks of waterways, marsh areas, head water areas, and similar conditions,
    2. the management and preservation of agricultural land and activities, forested areas, natural and wildlife areas and water storage areas,
    3. the protection, restoration, reclamation or use of shore land,
    4. the subdivision of land in rural areas and the establishment of limited development areas for agriculture, water storage, wildlife,
    5. the fringe areas of cities, towns, villages, hamlets and other built-up areas,
    6. the location and creation of new communities and settlements,
    7. the development, control, rehabilitation and reclamation of top soil removal areas, gravel and sand pits, quarries and other mineral deposits,
  4. the spatial distribution of residential development, and the renewal, rehabilitation and improvement of neighbourhoods, and urban cores,
  5. the co-ordination of programs relating to the economic, social, and physical development of the Municipality and Selection/Acquisition,
  6. the programming of public investment in respect of public and private development, in terms of cost and available financial resources, including the phasing of the development or redevelopment of the Municipality and Selection/Acquisition,
  7. guidelines for land use control measures and the subdivision of land,
  8. the fiscal capacity of the Municipality and Selection/Acquisition to support the planned development,
  9. such matters other than those mentioned in this clause as are, in the opinion of the Commission advisable;

(b) a map or series of maps, showing the division of all or part of the land in the Municipality and Selection/Acquisition, into areas of permitted land uses or permitted land use densities, or both, as the Commission considers necessary for the purposes of the Plan; and

  1. such proposals as are, in the opinion of the Commission advisable for the implementation of policies contained in the Plan.

Public hearing

The Commission shall give notice of a public hearing and shall hold a public hearing to receive representations from any person regarding the proposed Plan, and after the public meeting shall proceed or not proceed with the Plan in the same manner as is set out in The Planning Act, with such modifications as are necessary.

Zoning by-law

Upon the adoption of a Plan, the Municipality and Entitlement First Nation Councils shall enact or amend their zoning by-laws to bring them into conformity with the Plan within twelve (12) months or such extended period as the parties may agree.

Effect of adoption of Plan

The adoption of a Plan does not require the Municipality or Entitlement First Nation to undertake any proposal in the Plan. However, no undertaking, improvement or development within the Municipality or Reserve shall be carried out that is inconsistent or at variance with the proposals or policies set out in the Plan.

Periodic review of Plan

The Commission shall review the Plan no later than five (5) years after the date on which the Plan came into effect or the previous review.

Amendment of Plan

The Commission may amend an adopted Plan in accordance with the procedure set out in this Municipal Development and Services Agreement for the adoption of the original Plan.

In the alternative, while the parties may wish to establish a Joint Planning Commission in their MDSA, they may prefer to leave decisions respecting the process to be used by the Joint Planning Commission and outcomes to be achieved, to the Commission itself. In this case, provisions such as the following could be used:

The Municipality and the Entitlement First Nation acknowledge and agree that in order to successfully fulfil this Municipal Development and Services Agreement, it is essential that they work together in a spirit of cooperation and maintain an open and ongoing dialogue with respect to this Agreement and any matters not contemplated by this Agreement that impact on the continuing harmonious interface of the two jurisdictions.

The Municipality and the Entitlement First Nation agree that a Joint Planning Commission be established with a view to ensuring the harmonious operation of this Agreement and the orderly development of their respective lands to ensure peaceful and cooperative relationships between their peoples in the community of **** [insert the name of the community].

The Joint Planning Commission shall be comprised of the following:

  1. two (2) representatives from the Entitlement First Nation, who shall be appointed by Chief and Council of the Entitlement First Nation; and
  2. two (2) representatives from the Municipality, who shall be appointed by the Municipal Council;

one of whom shall be appointed by the above four (4) representatives as Chairperson, for a term of one (1) year. The Chairperson shall alternate annually between a representative of the Entitlement First Nation and a representative of the Municipality.

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C. Notification Process

A third option for developing compatible by-laws is the establishment of notification requirements in the MDSA. For example, the parties could require that each of them send a copy of any proposed by-law to the other party for comment prior to it being adopted. A reasonable period would be provided for the other party to review and comment on the proposed by-law. If the other party has concerns that cannot be dealt with by discussion, that party could request dispute resolution to resolve the conflict.

The advantage of this option is:

  • it is easy to administer.

The disadvantages of this option are:

  • there are possible time delays due to the referral process,
  • it may result in increased demands for dispute resolution, and
  • it does not address the need to evaluate the by-laws at the start of the process.

The following general provisions could be used by the parties should they want to adopt a notification process for the development and adoption of compatible by-laws:

Enactment of By-laws by Entitlement First Nation

(1) In the event that the Entitlement First Nation exercises its powers under the Indian Act, R.S.C. c. I-5 to enact a by-law that in any way affects the Municipality or the use and development of the Municipality, the Entitlement First Nation agrees to exercise those powers in the following manner:

  1. the Entitlement First Nation shall notify the Municipality of its intention and shall submit a copy of the proposed by-law to the Municipality for comment and consultation;
  2. the by-law shall be compatible with all laws of general application from time to time in force in the Province of Manitoba as contemplated by section 88 of the Indian Act, the by-laws of the Municipality as currently exist or as are amended, passed or proclaimed from time to time; and the terms and conditions of this Municipal Development and Services Agreement;
  3. in the event of a disagreement between the parties about the by-law, which cannot be resolved by discussion between the parties, the parties shall resolve the dispute in accordance with the dispute resolution process set out in sections ** of this Municipal Development and Services Agreement; and
  4. a copy of the by-law shall be forwarded to the Minister of Indian Affairs and Northern Development and a certified copy of the by-law shall be immediately provided to the Municipality.

(2) A by-law of the Entitlement First Nation that is lawfully passed pursuant to the Indian Act, R.S.C. 1985, c. I-5 and in accordance with the terms and conditions of this Municipal Development and Services Agreement shall take effect according to its provisions.

Enactment of By-laws by Municipality

In the event that the Municipality exercises its powers to enact or amend a by-law that in any way affects the Selection/Acquisition or the occupation, use, development or improvement of the Selection/Acquisition, or implement any form of additional tax which would obligate the Entitlement First Nation to pay an additional amount to the Municipality pursuant to the Section in this Municipal Development and Services Agreement that pertains to payment of fees for Services other than the amount referenced in that Section, the Municipality shall exercise those powers in the following manner:

  1. the Municipality shall notify the Entitlement First Nation of its intention and shall submit a copy of the proposed by-law to the Entitlement First Nation for comment and consultation;
  2. the Municipality shall not enact a by-law which has the effect of discriminating against the Entitlement First Nation or an occupant of the Selection/Acquisition;
  3. in the event of a disagreement between the parties about the by-law, which cannot be resolved by discussion between the parties, the parties shall resolve the dispute in accordance with the dispute resolution process set out in sections ** of this Municipal Development and Services Agreement; and
  4. a certified copy of a by-law upon enactment shall be forthwith provided to the Entitlement First Nation.

The following is another example of provisions that could be used in an agreement where the Entitlement First Nation has already enacted its own land use by-law, and the parties wish to ensure that their by-laws comply with the Development Plan that governs the area:

Land Use and Development

The Entitlement First Nation agrees that its Land Use and Occupancy By-law shall be in effect at all times on the Selection/Acquisition.

If the Entitlement First Nation decides to exercise any of its powers under the Indian Act, R.S.C. 1985, c. I-5 or pass new by-laws which affect the use, occupancy or development of the Selection/Acquisition, the Entitlement First Nation agrees to exercise those powers in the following manner:

  1. the Entitlement First Nation shall notify the Municipality of its intention and shall submit a copy of the proposed by-law to the Municipality for comment and consultation, as early as practicable but no less than sixty (60) days before implementation of the proposed passage of any new by-law or any proposed addition, amendment or change to the Land Use and Occupancy By-law;
  2. the Entitlement First Nation shall make all reasonable efforts to ensure that the new by-laws do not conflict with the by-laws of the Municipality and the Development Plan of the Municipality Planning District in effect from time to time; and
  3. the Entitlement First Nation shall provide a certified copy of each by-law to the Municipality forthwith upon the approval by the Minister of Indian Affairs and Northern Development.

If the Municipality decides to amend or pass by-laws which will affect the use, occupancy or development of the Selection/Acquisition, the Municipality shall notify the Entitlement First Nation of its intention and shall submit a copy of the proposed by-law to the Entitlement First Nation for comment and consultation, as early as practicable but no less than sixty (60) days before implementation of the proposed passage of any new by-law or any proposed addition, amendment or change to the Municipality's by-laws, which affect land use, occupancy or development.

The Entitlement First Nation acknowledges that the Environmental Assessment Act, S.C. 1992, c. 37 applies to major development projects on the Selection/ Acquisition and that the Municipality is entitled to timely notification about such projects and consultation in the planning, assessment and approval processes related to such projects.

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5. Administration of compatible by-laws

Two options for the administration of by-laws are a notification procedure and a process whereby the Municipality and Entitlement First Nation each administers its own by-laws without consultation.

A. Notice

A MDSA can specify that before a decision is made on a development or application, a copy of the proposed development or application must be sent to the other Council for review and comment. If the other Council has concerns, it would provide them in writing to the other party before the date set for the decision on the matter. If the parties cannot agree, a dispute resolution process could resolve the matter.

The advantages of this process are:

  • there would be minimal interference between the Municipality and the Entitlement First Nation in administration, and
  • the process is relatively easy to set up.

The disadvantages of this process are:

  • there would be time delays, and
  • there would be some added costs.

The following provisions could be used to implement the notice approach to the administration of compatible by-laws:

Notice to Municipality

The Entitlement First Nation shall notify the Municipality of any proposal to develop the Selection/Acquisition that it intends to consider at a future Council meeting and shall submit a copy of the development proposal to the Municipality for review and comment, specifying the date on which the Entitlement First Nation's Council will consider and vote on the proposal.

In the event that the Municipality has concerns about the proposed development, the Municipality shall provide a written response to the Entitlement First Nation prior to the date set out in the Entitlement First Nation's notice, setting out its concerns and recommended changes to the development proposal which alleviate its concerns.

The Council of the Entitlement First Nation shall consider the Municipality's concerns and recommended changes to the development proposal at the Entitlement First Nation's Council meeting that considers the development proposal.

In the event that the Entitlement First Nation does not agree to change the development proposal in accordance with the Municipality's recommendations, the Entitlement First Nation shall notify the Municipality in writing of its decision, and before proceeding with the development, the parties shall resolve their differences regarding the development proposal in accordance with the dispute resolution process set out in sections ** of this Municipal Development and Services Agreement.

The Municipality shall keep the Entitlement First Nation's development proposal confidential and shall not disclose it to any third party, except with the prior written consent of the Entitlement First Nation.

Notice to Entitlement First Nation

The provision headed "Notice to Municipality" shall apply to development proposals of the Municipality mutatis mutandis.

"Mutatis mutandis" means "in the same way".

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B. No Consultation

A second option available to the Municipality and Entitlement First Nation councils for the administration of by-laws is for each party to administer its own by-laws without consultation with the other party.

The advantages of this process are:

  • it recognizes the jurisdiction of each council process,
  • it is more streamlined; and
  • if compatible by-laws are in place, they would govern implementation and administration.

The disadvantages of this process are:

  • the potential for variation in application and enforcement of by-laws due to different priorities and interpretation,
  • conflicting developments can lead to mistrust and increase alienation between the Entitlement First Nation and Municipality, and
  • the potential conflict between Municipal residents and Entitlement First Nation residents over different rules.

A provision such as the following could be used by the parties if they choose the no-consultation option:

Entitlement First Nation Use and Development of Selection/Acquisition

The Entitlement First Nation agrees that the use and development of the Selection/Acquisition shall at all times be compatible with the laws of the Province of Manitoba and the by-laws of the Municipality, as amended from time to time. Without restricting the generality of the foregoing, the Entitlement First Nation agrees that the use and development of the Selection/Acquisition shall be compatible with zoning by-laws from time to time passed by the Entitlement First Nation in respect of the Selection/Acquisition, and acknowledges that the Selection/Acquisition is presently zoned for ********.

An alternative to the above provision which could be used by the parties to provide greater detail regarding how the Entitlement First Nation will administer the Selection or Acquisition independently but in compliance with the Municipalities By-laws could be accomplished using provisions such as the following:

The Entitlement First Nation shall administer the Selection/Acquisition so as to voluntarily comply with the minimum standards and provisions of applicable Municipal By-laws.

Where the Entitlement First Nation designates the Selection/Acquisition for lease, or assigns any right of possession, occupation or home ownership to any person residing on the Selection/Acquisition, then the Entitlement First Nation shall require the lessee or resident, as a condition of any lease or residence, to comply with the minimum standards and provisions of applicable Municipal By-laws.

The Municipality may wish to have more than a promise from the Entitlement First Nation that it will use or develop the Selection/Acquisition in a way that is compatible with the Municipality's by-laws. The following provisions would provide a Municipality with a remedy that it can use in the event that the Entitlement First Nation's use and development of the Selection or Acquisition land is not compatible with the Municipality's:

Remedy for Incompatible By-laws

If at any time, the occupation, use, development or improvement of the Selection/Acquisition is not essentially the same as the occupation, use, development or improvement which would be allowed if the Selection/Acquisition were not Reserve land, and such condition of breach continues for a period of thirty (30) days following written notification by the Municipality to the Entitlement First Nation of such breach, the Municipality may, at its option, and without prejudice to any other remedy which may be available, suspend or withdraw any or all of the Services which it provides to the Selection/Acquisition and occupants of the Selection/Acquisition, until the condition of breach has been remedied.

Enforcement of Entitlement First Nation By-laws

The Municipality shall, as an incident of its delivery of Services under this Municipal Development and Services Agreement, provide inspection services relating to all regulatory by-laws validly enacted by the Entitlement First Nation. Except as hereafter provided, the Municipality shall enforce and prosecute all such regulatory by-laws in accordance with the by-law provisions, it being expressly agreed that the Municipality shall have no obligation to enforce or prosecute by-laws of the Entitlement First Nation where:

  1. the courts of the Province of Manitoba lack jurisdiction; or,
  2. the Municipality cannot enforce or prosecute the Entitlement First Nation's by-laws in substantially the same manner as the Municipal by-laws; or
  3. any conflict of interest exists.

In such circumstances the Entitlement First Nation shall take all such steps and do all such things as are necessary so as to ensure that its by-laws are enforced and prosecuted to the full extent of the law.

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