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In Ontario, the New Home Construction Licensing Act, 2017 is slated to impose specific licensing requirements on individuals and corporations who sell and build new homes.

Construction in Indigenous Communities

Failing to obtain such a license will result in the application of steep penalties: a fine of up to $50,000 and two years of imprisonment for individuals, and a fine of up to $250,000 for corporations.

Similar steps have recently been taken to adopt new home sale and construction licensing requirements in other Canadian provinces, including in Alberta.

However, while this approach to construction sector licensing is relatively novel in most provinces, it has been the standard practice in Quebec for a number of years.

Indeed, the Building Act in Quebec imposes a number of specific construction license categories for a variety of different kinds of work that extend far beyond the construction of new homes. Fines for failing to hold a license are also quite steep: $11,047 to $82,844 in the case of an individual, and $33,138 to $165,687 in the case of a corporation.

What does this mean for Indigenous communities?

These sorts of licensing requirements are no doubt well-intentioned, but they can also impose heavy burdens in practice. This is particularly true in the case of remote communities, where access to personnel meeting the formal qualifications may be limited.

In the case of remote Indigenous communities, this difficulty is often compounded by already-existing housing and infrastructure shortages. These communities would stand to benefit from a more flexible approach to the licensing of new home construction than is provided under a standard, one-size-fits-all provincial model.

Can First Nations create their own licenses?

Two questions arise at this stage. The first is whether Indigenous communities have the power to enact their own forms of construction-sector licensing that are better suited to their own particular needs.

The answer to this question is relatively straightforward, at least for First Nations communities constituted as Bands under the Indian Act: that statute provides Bands with relatively wide by-law making powers, including for “the regulation of the construction, repair and use of buildings, whether owned by the band or by individual members of the band”. This gives Bands the power to impose licensing or qualification requirements on individuals and corporations undertaking building work on reserve land.

Local or provincial?

The second question is whether these alternative, locally-enacted approaches to construction sector licensing can be applied instead of the schemes set up under provincial legislation. The answer to this question, by contrast, is much more complicated.

In an earlier blog series (you can read part 1 here and part 2 here), Michel Nolet and I provided a brief overview of the legal framework involved in determining whether and to what extent provincial laws apply in the Indigenous setting. We also explored some more recent developments on this front.

Setting aside the legal technicalities involved, it is unfortunately not clear where construction licensing requirements fall at this stage. While it is at least conceivable that these provincially imposed schemes are inapplicable in Indigenous communities, particularly where those communities have adopted alternative licensing and qualification schemes, the issue has thus far not been resolved.

Next steps

The construction of new homes and other types of infrastructure on Indigenous land may benefit from a regulatory framework that is adapted for local needs, but it is too early at this stage to conclude that provincial licensing schemes do not apply. The first step in relieving some of the negative consequences of these provincial statutes is to affirm the already-existing power to enact local forms of regulation. Only then will it become possible to ask the second question above – and determine whether these local schemes displace provincial licensing requirements after all.

For more about construction licensing in Indigenous communities, contact our Indigenous Law Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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