Construction on First Nations Land: Determining the Applicable Building Code

Introduction

As recognized by the Standing Senate Committee on Aboriginal Peoples, most on-reserve housing and infrastructure is poorly built, in serious disrepair and under-supplied.[1]  This recognition has led to an increase in construction projects on First Nations lands, which will likely continue as more First Nations address these infrastructure problems.  This raises an interesting issue for architects and engineers engaged to provide professional services for First Nation construction projects, namely, which building code governs the project?  The application of the correct building code is a fundamental issue for consultants to determine as the code outlines the design parameters and construction requirements for the project.  Failing to apply the correct building code could result in considerable liability to architects, engineers and/or other design professionals.

Federal or Provincial Building Code?

Confusion with respect to the applicable building code may arise due to the fact that First Nations are federally regulated pursuant to the Indian Act, R.S.C. 1985, c. I-5 (the “Indian Act”).  The Indian Act is wide-ranging in scope and governs land use on reserves.

Federal regulation of First Nations may lead to the conclusion that the National Building Code of Canada applies.  However, the National Building Code is merely a model building code that forms the basis for all provincial building codes; it has no legal status unless it has been expressly adopted.  Some provinces have created their own code based on the National Building Code, while other provinces have adopted the National Building Code with supplementary laws or regulations.

British Columbia has its own provincial building code that governs new construction, building alterations, repairs and demolitions.  The City of Vancouver has passed the Vancouver Building Bylaw (“VBB”), which regulates the design and construction of buildings, as well as administrative provisions related to permits, inspections, and the enforcement of these requirements in Vancouver.

Given the existence of the British Columbia Building Code, the assumption may be then that it is the applicable building code for on-reserve construction projects in British Columbia and, for projects located within Vancouver, that the VBB will apply.  However, the general rule is that provincial and municipal laws of general application do not apply with respect to the use of reserve lands, thus suggesting that the British Columbia Building Code and the VBB do not apply to on-reserve construction projects.

This leads to a conundrum: if the federal National Building Code does not apply and the provincial building codes and municipal bylaws do not apply, which building code governs on-reserve construction?  The short answer is that architects and engineers involved in on-reserve construction projects will be required to make additional inquiries to satisfy themselves as to the applicable building code requirements.

First Nation Building Codes

There is a “regulatory gap” on First Nations land because federal laws are not designed to cover development or construction on federal land.  When a lease is issued to a third party developer (which is the greatest interest a third party can have in First Nations’ land), the lease often addresses this regulatory gap by setting out a contractual development approval process and adopting a specific building code.  Most reserve land leases issued by Canada on behalf of First Nations require the tenant to comply with the building code of the province in which the land is located.

First Nations operating under the Indian Act have the authority to pass land use bylaws that adopt a building code or create their own building code.  The federal government’s policy is that building codes passed by First Nations must conform to the National Building Code.

Not all reserve lands are administered under the Indian Act.  Some First Nations have entered into agreements with the federal government to assume administration of their reserve lands under their own Land Codes made under the First Nations Land Management Act, S.C. 1999, c. 24.  These “Land Code First Nations” also have the ability to develop land use bylaws under which they can adopt a pre-existing building code or create their own building code.  The majority of Land Code First Nations in British Columbia have not created their own codes but have opted to referentially incorporate the provincial building code or the National Building Code requirements into their own building bylaws.  For construction on leasehold Land Code land, the lease may also incorporate building code requirements.

While not enacting a complete building code, some First Nations have created bylaws applicable to construction.  Tk’emlúps te Secwepemc (previously the Kamloops Indian Band) has passed a development approval process bylaw that regulates the construction, alteration, repair, moving or demolition of buildings and structures and specifically adopts the British Columbia Building Code.  The Westbank First Nation, adjacent to the City of Kelowna, evolved from being an Indian Act First Nation to a Land Code First Nation and then to being covered by its own constitution.  The Westbank First Nation has implemented one of the most comprehensive set of community bylaws governing the development and regulation of housing on reserve, including a Building Law, which adopts the British Columbia Building Code.  The Tsawwassen First Nation, which has its own treaty supported by federal and provincial legislation, has passed its own Land Use Planning and Development Act.  The Tsawwassen First Nation’s Building Regulation made under that act also adopts the British Columbia Building Code.

Although national and provincial building codes are frequently similar, it is important for architects and engineers providing professional services for projects on First Nations land to be aware of which building code has been incorporated or applies in order to ensure compliance with the correct code.  The applicable code will vary amongst different First Nations.

Required Steps for an Architect or Engineer Prior to Working on First Nation Land

Differences between federal and provincial legislation, and among First Nations in the regulatory approach to construction, means that a case-by-case assessment is necessary.

Prior to commencing design work for an on-reserve First Nations construction project, an architect or engineer should perform due diligence that includes identifying which federal statues and First Nations laws apply to land use matters on the particular First Nation’s reserve and request the First Nation’s laws or bylaws relevant to development and construction.  They should also examine the applicable lease(s) to determine any contractual requirements.  The applicable laws or leases may also set out certification requirements to be followed by an architect or engineer in order to support a request for a building permit or occupancy permit.  Failing to correctly ascertain the appropriate building code could result in serious liability for the architect or engineer should the construction not meet the applicable requirements.

Underwriters insuring architects and engineers should ensure their Professional Liability insurance application form requires disclosure of all on-reserve First Nations projects and confirmation that the insured has performed all necessary due diligence to determine the applicable building code requirements.

[1]     On-Reserve Housing and Infrastructure: Recommendation for Change (June 2015) (Chair: The Honourable Dennis Glen Patterson) at p. 4.