Casual Legal: Municipal agreements with First Nations
By Moira Lavoie
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
Municipalities are sometimes approached by First Nations that are interested in arranging for municipal services to be provided on First Nations' reserve lands (as defined and set apart under the federal Indian Act).
This arrangement will typically be formalized through a Municipal Development and Services Agreement (MDSA) which sets out the terms under which the First Nation purchases services from the municipality.
The scope of services can be tailored
Services under an MDSA may be very limited (e.g., only water and sewer services), or they may include essentially all of the services that would be available to the lands if they had remained municipal lands. The scope of the MDSA will vary according the needs and interests of the parties in question.
Reserve lands are subject to federal jurisdiction
Municipalities will generally want to ensure as much consistency between their own bylaws and on-reserve bylaws as they relate to the services being provided under the MDSA. However, municipal bylaws cannot simply be extended to reserve lands by agreement of the parties under an MDSA. Instead, the First Nation must adopt its own bylaws pursuant to the terms of the Indian Act. The First Nation’s bylaws can then incorporate by reference key terms from applicable municipal bylaws, as long as those terms do not conflict with federal legislation or jurisdiction.
Ensure effective communications & avoid disputes
As in other types of contracts, an MDSA will typically contain provisions that refer disputes under the MDSA to an arbitration process. Nevertheless, the parties to an MDSA should try to set up other processes within the MDSA for communicating about and resolving key issues without needing to resort to arbitration. For example, the MDSA could create a joint bylaw committee, where the parties work together to ensure consistency in the content and enforcement of relevant bylaws on and off reserve. And while the parties will not have “veto power” over subdivision and development proposals on their respective lands, they may wish to set out processes whereby they can provide constructive feedback on such proposals.
Work with legal counsel
Various potential issues can arise in relation to enforcement of obligations the MDSA which are not covered here, including ensuring bylaw compliance and payment of service fees. By working with legal counsel throughout negotiation and implementation of and MDSA, municipalities can ensure they understand these issues and are equipped to address them as they arise.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.
