Examining the Regulatory Gap on Indian Act Reserve Lands: A Comparative Case Study of Two Aboriginal Governance Regimes in Quebec

Abstract

Governance of First Nations lands in Canada is a contentious and complicated subject, within which a phenomenon known as the regulatory gap on Indian Act reserve lands is frequently discussed. The generally accepted description of this regulatory gap is that while First Nations reserves fall under the jurisdiction of the federal government, provincial governments are largely responsible for land and environmental management; therefore, not only does the majority of legislation passed by the provinces not apply on reserve, but the federal equivalents of provincial land and environmental management regulations are extremely limited. This regulatory gap is frequently identified as a key contributing factor to major human and environmental health issues on reserve. However, a review of the literature on the regulatory gap reveals that examinations of the regulatory gap which go beyond jurisdictional explanations are lacking, as are provincially focused, comparative studies of the topic. This paper will seek to provide such an examination through a comparative case study of the two primary land and environmental regimes of the First Nations peoples of Quebec, one established in the Indian Act and the other operating outside of the Act through the James Bay and Northern Quebec Agreement. The similarities and the differences between these land regimes will be the empirical focus of this examination. Through this comparative analysis, the current, relatively narrow descriptions of the regulatory gap will be expanded through engagement with ongoing debates on the broader subject of aboriginal governance. This will provide greater context and nuance to the regulatory gap and to the varied and ongoing efforts to bridge the gap on Indian Act reserve lands in Quebec and across Canada.