There are some restrictions on what Band Councils can control through their by-laws. According to section 81 of the Indian Act, Band Councils may make by-laws so long as they are no contrary to:
In addition, in certain cases by-laws may not be contrary to other federal laws, e.g. the Criminal Code or the Controlled Drugs and Substances Act.
Finally, a by-law can only be enacted if it covers a subject that is within the powers provided to the council under the Indian Act. Therefore, before enacting a section 81 by-law, it is necessary to check through the areas of authority that are listed under section 81. By so doing, you can determine if the by-law that you wish to enact is within the Band Council’s authority.1.4 GUIDELINES
A by-law applies to all people on a reserve. It governs the activity in question on all of the reserve lands under the control of the Band Council that passed the by-law. The by-law applies to everyone (native and non-native) present on the reserve, whether or not they normally live on the reserve.
A by-law must be properly enacted. It is not a law and cannot be enforced in court until it has been properly enacted in accordance with the procedural requirements set out in the Indian Act.
A by-law should be enacted only when it is needed, or when it is anticipated a by-law will be needed. In general, there is no sense enacting a by-law where there is no real need for it, or where there general feeling of the Band membership is against that particular by-law.
Before a Band council enacts a section 85.1 intoxicant by-law, the by-law must be assented to by a majority of the band’s electors who vote at a special meeting called by the council for the purpose of considering the by-law.
A Band Council is not required to obtain general membership acceptance before enacting a section 81 by-law. However, before such a by-law is enacted, the Band Council may request membership acceptance even through this is not required by the Indian Act. This may, in fact, be advisable in the case of contentious by-laws such as, for example, those dealing with curfew, residency, hunting and fishing.1.5 BAND COUNCIL RESOULUTIONS AND BAND COUNCIL BY-LAWS
A by-law is continuing regulation. A Band Council Resolution (BCR), on the other hand, is an administrative declaration of the Band Council with respect to a particular matter of a temporary character; it does not prescribe a permanent rule of local government. A BCR generally expresses the will of the Band Council on a particular occasion with is not likely to recur and its subject matter is not usually as important as that dealt with by the Council in a by-law.
For example, if a Band Council wished to hire an individual to act as band manager, it could pass a BCR stating that it is employing “John Smith as Band Manager of the Rainbow River Indian Band”. This resolution would be voted on at one of the council’s regular meetings and those councillors in favour of hiring John Smith would sign the BCR. On the other hand, if the Band Council wished to set permanent rules for controlling, for example, disorderly conduct and nuisances on the reserve, it would enact a by-law and not a BCR. While the BCR would only affect John Smith, the by-law would apply to all persons on the reserve.