When a homeowner in Barrie builds a deck, a contractor in Collingwood puts up a new commercial unit, or a developer in Bracebridge breaks ground on a subdivision, there is a clear chain of oversight. Plans are reviewed. Permits are issued. Inspectors show up at every critical stage. If something is wrong, work stops. That system, anchored by the Chief Building Official (“CBO”) and the municipality acting as the Authority Having Jurisdiction (“AHJ”), exists to protect people and ensure construction meets minimum safety standards.
For many First Nation communities in Ontario, that system simply does not apply. The regulatory gap on reserve lands is real, it is consequential, and it is something communities can address. This article explains why the gap exists and, more importantly, what First Nations can do about it.
The Regulatory Gap on Reserve Lands
In municipal Ontario, the AHJ is almost always the municipality. Through its CBO, the municipality reviews plans, issues building permits, and conducts inspections at key construction milestones, foundation, framing, insulation, pre-close, and final occupancy. That inspector standing outside a half-built house is not just a bureaucratic inconvenience; they are the mechanism by which hidden deficiencies get caught before drywall covers them up. Without that checkpoint, problems are buried, sometimes literally.
Reserve lands are different. Ontario’s Building Code Act, 1992, is provincial legislation. Under section 91(24) of the Constitution Act, 1867, reserve lands fall under federal jurisdiction. Provincial building codes generally do not apply to on-reserve construction, and there is no federal equivalent that steps in to fill the gap. The result is a jurisdictional no-man’s-land: provincial law does not apply, and federal law does not replace it.
The National Building Code of Canada (“NBC”), published by the National Research Council, is worth mentioning here because it often comes up in this conversation. The NBC is a model code, it has no legal force unless a jurisdiction explicitly adopts it. Indigenous Services Canada (“ISC”) may require NBC compliance as a condition of funding for federally funded projects, but that is a policy-based funding condition, not law. It does not create a permit system, mandatory inspections, or a Chief Building Official. Many First Nation communities are therefore left without a legally enforceable building standard of any kind.
This is not a minor administrative inconvenience. It affects housing quality, infrastructure longevity, insurance coverage, occupant safety, and the community’s ability to hold contractors accountable when work is deficient.
Four Options for Establishing an AHJ on Reserve
The good news is that First Nations are not without tools. There are four main pathways, each offering a different level of legal strength and administrative complexity, that communities can use to establish their own building standards regime.
1. Indian Act Bylaw Under Section 81(1)(h)
The most accessible starting point for many communities is the bylaw power under the Indian Act. Section 81(1)(h) grants band councils the authority to pass bylaws governing the construction, repair, and use of buildings on reserve, whether owned by the band or by individual members. This power also extends to zoning, including dividing a reserve into zones and restricting the types of construction permitted in each zone.
A band council can use this power to adopt the NBC or the Ontario Building Code by reference as the applicable construction standard. Such a bylaw can also address property maintenance, occupancy standards, pest prevention, and fire safety, creating a reasonably comprehensive on-reserve building code in a single instrument.
The process requires the bylaw to be properly passed by council and forwarded to the Minister. The Minister has 40 days to disallow it; if no disallowance occurs within that period, the bylaw is deemed approved. It is a viable pathway, though relatively few First Nations have used it specifically for building codes.
One important distinction must be drawn: a bylaw under the Indian Act is not the same as a Band Council Resolution (BCR). The Ontario Court of Appeal addressed this directly in Hiawatha First Nation v. Cowie (2023 ONCA 524), clarifying that a BCR imposing a moratorium on new businesses was not enforceable as a bylaw under the Indian Act because it did not meet the formal requirements for a bylaw in either form or substance. That case stands as a reminder that the legal enforceability of building standards, including the ability to issue stop-work orders or seek court enforcement, depends on getting the instrument right. A resolution that looks like a rule is not the same as one that is a rule.
2. Land Code Under the Framework Agreement on First Nation Land Management
For communities ready to take a more significant step, opting into the Framework Agreement on First Nation Land Management (“FAFNLMA”) is the most legally robust option available. Under this framework, a First Nation develops a community-approved Land Code that replaces the Indian Act land management provisions. The Framework Agreement itself has the force of law (s. 5(1) FAFNLMA).
A Land Code gives the First Nation authority to enact its own laws on building standards, zoning, land use, and environmental protection, without those laws being subject to Ministerial disallowance. This approach is rooted in the community’s inherent jurisdiction over its own lands, making it the strongest available foundation for an on-reserve AHJ.
The practical implications are significant. The Ontario Superior Court confirmed in 2089322 Ontario Corporation v. DesRoches (2023 ONSC 1681) that once a Land Code comes into force, interests or rights in First Nation land can only be acquired or granted in accordance with that Land Code. Building and land use laws enacted under a Land Code therefore carry real legal weight and can be enforced against third parties, including contractors and developers.
Ontario First Nations that have already adopted Land Codes include Mississauga First Nation, Algonquins of Pikwakanagan, Beausoleil, Moose Deer Point, Sheshegwaning, and a number of other communities. For communities with the capacity and long-term vision to pursue this path, it is the gold standard.
3. Band Council Resolution and Policy
A community that is not yet ready to pursue a formal bylaw or Land Code can still establish construction standards through a Band Council Resolution (BCR) and accompanying policy. A BCR does not carry the same legal weight as a properly enacted bylaw, and as noted above, it cannot be enforced as one (Hiawatha First Nation v. Cowie). However, it is not without value.
A BCR establishing construction standards creates a documented, community-sanctioned baseline that can be incorporated into contracts by reference. A construction agreement could require the contractor to comply with the standards set out in a specific BCR, binding the contractor contractually even if the BCR itself lacks the force of law. This approach is meaningfully better than having no standard at all and can be implemented quickly as a bridge measure while longer-term solutions are developed.
4. Contractual Standards
At a minimum, every First Nation undertaking construction can implement standards through its contracts, immediately, without passing any bylaws or resolutions. A well-drafted construction contract can require compliance with the NBC, mandate inspections at specified milestones, define the consequences of non-compliance (including holdbacks and termination rights), and require the contractor to remedy deficient work at its own cost.
This is the floor, not the ceiling. Contractual standards bind the contractor but do not create the broader regulatory architecture of a permit system, a CBO, or stop-work authority. That said, for communities that are currently relying on nothing more than the hope that a contractor does good work, a properly drafted construction contract is a meaningful and immediate upgrade.
Choosing the Right Path
No single option is right for every community. The choice depends on the community’s current governance infrastructure, administrative capacity, the nature and volume of construction activity, and long-term land management goals. A community with active housing development and existing governance capacity may be ready to pursue a Land Code. A community that needs something in place next month for a specific project may start with a robust construction contract and a BCR while longer-term planning proceeds.
What matters is that communities do not accept the status quo of having no enforceable building standards by default. The regulatory gap is a product of the constitutional division of powers, not an indication that First Nations have no authority to act. They do, and there are clear, tested legal mechanisms to exercise it.
About Barriston Law
Barriston Law’s Indigenous Legal Department works directly with First Nations communities on the legal infrastructure that supports effective self-governance, including land use, building standards, and construction procurement frameworks. Whether your community is considering its first building bylaw, evaluating the FAFNLMA process, or simply needs properly drafted construction contracts that protect community interests, we can help you identify the right tool and implement it correctly.
Our department was built specifically to serve First Nations communities across Ontario, with a focus on practical, community-oriented legal solutions. We understand the distinction between an Indian Act bylaw and a BCR. We know what a Land Code can and cannot accomplish. And we know that the legal work only matters if it is accessible and affordable for the communities that need it.
Contact Barriston Law
To explore what building standards framework makes sense for your community, contact the Indigenous Legal Department at Barriston Law for an initial conversation.
Written by Garnik Martirosov
Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. Every community’s circumstances are unique. Before pursuing any building standards framework, governance instrument, or construction procurement arrangement, readers should obtain professional legal advice tailored to their specific situation.