1985
Henderson's Annotated Indian Act

The Indian Act, R.S.C. 1985, c. I-5

Index Notes on the Indian Act Legislative History Definitions and Administration (ss. 1-4) Indian Status and Band Membership (ss. 5-17) Reserve Lands (ss. 18-41) Indian Estates and Guardianship (ss. 42-52.5) Land Management (ss. 53-60) Indian Moneys and Finance (ss. 61-72) Regulations and Elections (ss. 73-79) Conduct of Band Business by Council (ss. 80-86) Legal Rights and Immunities (ss. 87-90) Offences and Enforcement (ss. 91-108) Indian Education (ss. 109-122) Back to Aboriginal Law and Legislation Back to the Law Library Back to the Aboriginal Resources Page Comments and suggestions to Bill Henderson

Notes on the Indian Act The Indian Act seems out of step with the bulk of Canadian law. It singles out a segment of society -- largely on the basis of race -- removes much of their land and property from the commercial mainstream and gives the Minister of Indian & Northern Affairs, and other government officials, a degree of discretion that is not only intrusive but frequently offensive. The Act has been roundly criticized on all sides: many want it abolished because it violates normative standards of equality, and these critics tend to be non-Aboriginal; others want First Nations to be able to make their own decisions as self-governing polities and see the Act as inhibiting that freedom. Even within its provisions, others see unfair treatment as between, for example, Indians who live on reserve and those who reside elsewhere. In short, this is a statute of which few speak well. Historically, the Act evolved to protect the small share of Canada's land base which remained to our original peoples. Statutes dating back to the middle of the last century created the concept of "status" to separate those who were entitled to reside on Indian lands and use their resources from those who were forbidden to do so. In this respect, the early legislation was an expression of the concepts set forth in the Royal Proclamation of 1763. The exemption of reserve lands from municipal taxation and seizure under legal process were other measures intended to secure those lands for the intended occupants: Indians themselves. Status soon came to have other implications. Status Indians were denied the right to vote, they did not sit on juries, and they were exempt from conscription in time of war (although the percentage of volunteers was higher among Indians than any other group). The attitude that others were the better judges of Indian interests turned the statute into a grab-bag of social engineering over the years. When the Potlatch and Sun Dance were see as uncivilized, the Indian Act was used to ban them. Possession of liquor, on or off the reserve, was punished more harshly under the Act than by general laws. Loitering in pool rooms was forbidden. Indian children were removed from their homes, under the Minister's authority to educate them, and sent to residential schools. Children who were habitually absent from school were "deemed" to be juvenile delinquents. Most telling in relation to this attitude was the definition of "person" which was in the statute until 1951: "an individual other than an Indian". Indians could become persons by voluntarily enfranchising -- renouncing Indian status -- and, in many circumstances, were involuntarily enfranchised by the Act. A famous statement in 1920 by Duncan Campbell Scott, poet, essayist and Deputy Superintendent General of Indian Affairs, encapsulates the prevailing attitude of his day: "Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question, and no Indian department." Over time, the measures originally intended to protect the land base were progressively loosened to open up reserve lands for farming, settlement and other purposes. At one time, Exchequer Court judges were given the discretion to remove Indians from reserves within urban area although that was only done once. Treaty provisions which permitted the federal government to take up reserve lands for public works of Canada were, in the Act, modified to enable any organization with expropriation powers to exercise them on reserve. When Indians complained of administrative abuses and, in the non-Treaty areas, to press their claims of Aboriginal title, the Act was amended to make it an offence to retain a lawyer for the purpose of advancing a claim. Not surprisingly the land base was reduced, often in return for nominal consideration or no consideration: see, e.g., the British Columbia Indian Lands Settlement Act, S.C. 1920, c. 51. The Act was extensively amended after World War II and was again under study in the mid-1960's. The 2- volume "Hawthorne Report" vividly portrayed the Indian fact in Canada and, after a national consultation with Chiefs, government advanced the 1969 White Paper Policy which would abolish Indian status, Indian reserves, Indian Treaties, the Indian Department and the Indian Act. Indian resistance to this initiative, coupled with favourable court decisions, forced government to re-think its policies. In 1973, the White Paper was formally withdrawn and government began to deal seriously -- if somewhat intermittently -- with land claims. Its resistance to such claims was apparent when, in the Guerin case, [1984] 2 S.C.R. 335, it denied any legal responsibility for leasing reserve lands on terms much less favourable than those discussed with a Band before the formal surrender. The Supreme Court of Canada confirmed the fiduciary duties of the Crown, derivable from the nature of Indian title and from the Indian Act, and held Canada liable for its breach of duty in that case. Claims policy is still problematic and there has been no statutory initiative to deal with those problems. Recognition of "existing aboriginal and treaty rights" in the Constitution Act, 1982 and proclamation of the Canadian Charter of Rights and Freedoms led to important changes. Government had long promised to remove involuntry enfranchisement from the Act, especially the clause that deprived Indian women of their status and Band membership when they married non-Indian men. Non-Indian women who married I ndian men gained status and membership: see, e.g., Lavell v. The Queen, [1974] S.C.R. 1349, where the Court barely upheld a challenge based on the earlier Canadian Bill of Rights, and Lovelace v. Canada, [1983] Can. Human Rts. Yearbook 305, where the U.N. Human Rights Committee found that the Act discriminated on the basis of sex, and other ongoing violations of the International Covenant on Human Rights. With section 15 -- the equal rights provision of the Charter coming into effect in April, 1985, "Bill C-31" was enacted (after the fact, but retroactively) to remove the discriminatory provisions: R.S.C. 1985, c. 32 (1st Supp.). In fact, Bill C-31 went much further, reinstating those who had previously lost status and their children. This move greatly increased the status Indian population, creating increased demands upon community and government resources which have yet to be resolved. In the current Act, there is no voluntary or involuntary enfranchisement and marriage is a neutral act: no one gains or loses status. In 1985, there were approximately 300,000 status Indians. In 1995, the number is approaching 600,000. The so-called "Kamloops" amendments (R.S.C. 1985, c. 17 (4th Supp.)) in the late 1980's were intended to create a distinction between reserve lands available for leasing -- "designated lands" -- and those surrendered for sale. The Kamloops Band had lost a court case challenging municipal taxation of their tenants even though the City of Kamloops provided no services to designated lands, which were held to be in any event outside the jurisdiction of the Band Council. The import of this distinction was to give Band Councils regulatory and taxing jurisdiction over their leased lands. By the same amendment, leasehold interests in designated lands were made mortgageable as an exception to the statutory rule that reserve lands cannot be mortgaged (section 89). The Indian Act remains a target of criticism and the subject of continuing review although history shows that significant change only occurs, at best, every quarter century, if then. Many First Nations are seeking change through local or provincial initiatives generally described as "Indian Act alternatives". The Liberal "Red Book" has promised change, and the Royal Commission on Aboriginal Peoples can be expected to recommend change. Time will tell what changes occur, and when, to a statute that has proved very resilient for a very long time. Back to Index

Legislative History R.S.C. 1985, Chap. I-5 Amended 1985, c. 32 (1st Supp.) Amended R.S.C. 1985, c. 27 (2nd Supp.), ss. 10 & 11 Amended R.S.C. 1985, c. 17 (4th Supp.) Amended R.S.C. 1985, c. 43 (4th Supp.) Amended R.S.C. 1985, c. 48 (4th Supp.) Amended 1990, c. 16, s. 14; in force July 1, 1990 (SI/90-90) Amended 1990, c. 17, s. 25; in force Sept. 1, 1990 (SI/90-106) Amended 1992, c. 51, s. 54; in force Jan. 30, 1993 Amended 1993, c. 28, s. 78; in force Apr. 1, 1999 Note: The first federal legislation after Confederation was the 1868 Secretary of State Act, soon followed by An Act for the Gradual Civilization and Enfranchisement of Indians. These statutes were consolidated in the Revised Statutes, 1876. Amendments can be traced through subsequent editions to the current Act. Back to Index

Definitions and Administration (ss. 1-4) Section 1 (Short Title) This Act may be cited as the Indian Act.

Section 2 (1) (Definitions) In this Act, "band" means a body of Indians (a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951, (b) for whose use and benefit in common, moneys are held by Her Majesty, or (c) declared by the Governor in Council to be a band for the purposes of this Act; "Band List" means a list of persons that is maintained under section 8 by a band or in the Department; "child" includes a child born in or out of wedlock, a legally adopted child and a child adopted in accordance with Indian custom; "council of the band" means (a) in the case of a band to which section 74 applies, the council established pursuant to that section, (b) in the case of a band to which section 74 does not apply, the council chosen according to the custom of the band, or, where there is no council, the chief of the band chosen according to the custom of the band; "Department" means the Department of Indian Affairs and Northern Development; "designated lands" means a tract of land or any interest therein the legal title to which remains vested in Her Majesty and in which the band for whose use and benefit it was set apart as a reserve has, otherwise than absolutely, released or surrendered its rights or interests, whether before or after the coming into force of this definition; "elector" means a person who (a) is registered on a Band List, (b) is of the full age of eighteen years, and (c) is not disqualified from voting at band elections; "estate" includes real and personal property and any interest in land; "Indian" means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian; "Indian moneys" means all moneys collected, received or held by Her Majesty for the use and benefit of Indians or bands; "Indian Register" means the register of persons that is maintained under section 5; "intoxicant" includes alcohol, alcoholic, spirituous, vinous, fermented malt or other intoxicating liquor or combination of liquors and mixed liquor a part of which is spirituous, vinous, fermented or otherwise intoxicating and all drinks, drinkable liquids, preparations or mixtures capable of human consumption that are intoxicating; "member of a band" means a person whose name appears on a Band List or who is entitled to have his name appear on a Band List; "mentally incompetent Indian" means an Indian who, pursuant to the laws of the province in which he resides, has been found to be mentally defective or incompetent for the purposes of any laws of that province providing for the administration of estates of mentally defective or incompetent persons; "Minister" means the Minister of Indian Affairs and Northern Development; "registered" means registered as an Indian in the Indian Register; "Registrar" means the officer in the Department who is in charge of the Indian Register and the Band Lists maintained in the Department; "reserve" (a) means a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band, and (b) except in subsection 18(2), sections 20 to 25, 28, 36 to 38, 42, 44, 46, 48 to 51, 58 to 60 and the regulations made under any of those provisions, includes designated lands; "superintendent" includes a commissioner, regional supervisor, Indian superintendent, assistant Indian superintendent and any other person declared by the Minister to be a superintendent for the purposes of this Act, and with reference to a band or a reserve, means the superintendent for that band or reserve; "surrendered lands" means a reserve or part of a reserve or any interest therein, the legal title to which remains vested in Her Majesty, that has been released or surrendered by the band for whose use and benefit it was set apart. Note: Additional definitions are given at section 122 which apply to the education provisions of the Act, ss. 114-121.

Section 2 (2) (Use of Term "Band") The expression "band", with reference to a reserve or surrendered lands, means the band for whose use and benefit the reserve or the surrendered lands were set apart.

Section 2 (3) (Exercise of Powers conferred on Band or Council) Unless the context otherwise requires or this Act otherwise provides, (a) a power conferred on a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the electors of the band; and (b) a power conferred on the council of a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the councillors of the band present at a meeting of the council duly convened.

Section 3 (1) (Administration) This Act shall be administered by the Minister, who shall be the superintendent general of Indian affairs.

Section 3 (2) (Authority of Deputy Minister and Chief Officer) The Minister may authorize the Deputy Minister of Indian Affairs and Northern Development or the chief officer in charge of the branch of the Department relating to Indian affairs to perform and exercise any of the duties, powers and functions that may be or are required to be performed or exercised by the Minister under this Act or any other Act of Parliament relating to Indian affairs.

Section 4 (1) (Act not applying to Inuit) A reference in this Act to an Indian does not include any person of the race of aborigines commonly referred to as Inuit.

Section 4 (2) (Act be declared Inapplicable, in part) The Governor in Council may by proclamation declare that this Act or any portion thereof, except sections 5 to 14.3 or sections 37 to 41, shall not apply to (a) any Indians or any group or band of Indians, or (b) any reserve or any surrendered lands or any part thereof, and may by proclamation revoke any such declaration.

Section 4 (2.1) (Prior Declarations Confirmed) For greater certainty, and without restricting the generality of subsection (2), the Governor in Council shall be deemed to have had the authority to make any declaration under subsection (2) that the Governor in Council has made in respect of section 11, 12 or 14, or any provision thereof, as each section or provision read immediately prior to April 17, 1985. Note: In the early 1980's, several orders-in-council were passed exempting some Bands from the "marrying- out" provision which deprived Indian women of status and membership when they married non-Indian males. The 1985 Act, known as "Bill C-31" added a phrase to section 4(2) to the effect that the new status and membership rules cannot be declared inapplicable. For the sake of certainty, the earlier orders were confirmed by section 4(2.1). Section 4 (3) (Sections not Applicable to Indians living Off Reserve) Sections 114 to 122 and, unless the Minister otherwise orders, sections 42 to 52 do not apply to or in respect of any Indian who does not ordinarily reside on a reserve or on lands belonging to Her Majesty in right of Canada or a province.

Section 4.1 (Sections Applicable to All Band Members) A reference to an Indian in any of the following provisions shall be deemed to include a reference to any person whose name is entered in a Band List and who is entitled to have it entered therein: the definitions "band", "Indian moneys" and "mentally incompetent Indian" in section 2, subsections 4(2) and (3) and 18(2), sections 20 and 22 to 25, subsections 31(1) and (3) and 35(4), sections 51, 52, 52.2 and 52.3, subsections 58(3) and 61(1), sections 63 and 65, subsections 66(2) and 70(1) and (4), section 71, paragraphs 73(g) and (h), subsection 74(4), section 84, paragraph 87(1)(a), section 88, subsection 89(1) and paragraph 107(b). Back to Index

Indian Status and Band Membership (ss. 5-17) Section 5 (1) (Register of Status Indians) There shall be maintained in the Department an Indian Register in which shall be recorded the name of every person who is entitled to be registered as an Indian under this Act.

Section 5 (2) (Continuation of Indian Register) The names in the Indian Register immediately prior to April 17, 1985 shall constitute the Indian Register on April 17, 1985.

Section 5 (3) (Authority of Registrar) The Registrar may at any time add to or delete from the Indian Register the name of any person who, in accordance with this Act, is entitled or not entitled, as the case may be, to have his name included in the Indian Register.

Section 5 (4) (Information to be Entered) The Indian Register shall indicate the date on which each name was added thereto or deleted therefrom.

Section 5 (5) (Requirement to Apply for Status) The name of a person who is entitled to be registered is not required to be recorded in the Indian Register unless an application for registration is made to the Registrar.

Section 6 (Persons entitled to Indian status) Subject to section 7, a person is entitled to be registered if (a) that person was registered or entitled to be registered immediately prior to April 17, 1985; (b) that person is a member of a body of persons that has been declared by the Governor in Council on or after April 17, 1985 to be a band for the purposes of this Act; (c) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iv), paragraph 12(1)(b) or subsection 12(2) or under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions; (d) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(1), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions; (e) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, (i) under section 13, as it read immediately prior to September 4, 1951, or under any former provision of this Act relating to the same subject-matter as that section, or (ii) under section 111, as it read immediately prior to July 1, 1920, or under any former provision of this Act relating to the same subject-matter as that section; or (f) that person is a person both of whose parents are or, if no longer living, were at the time of death entitled to be registered under this section. Note: Bill C-31, R.S.C. 1985, c. 32 (1st Supp.), included the following provision in relation to persons whose status was reinstated by certain of its provisions: "For greater certainty, no claim lies against Her Majesty in right of Canada, the Minister, any band, council of a band or member of a band or any other person or body in relation to the omission or deletion of the name of a person from the Indian Register in the circumstances set out in paragraph 6(1)(c), (d) or (e) of the Indian Act" (s.22).

Section 6 (2) (One-Parent Entitlement to Status) Subject to section 7, a person is entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1).

Section 6 (3) (Deeming Provisions re Entitlement to Status) For the purposes of paragraph (1)(f) and subsection (2), (a) a person who was no longer living immediately prior to April 17, 1985 but who was at the time of death entitled to be registered shall be deemed to be entitled to be registered under paragraph (1)(a); and (b) a person described in paragraph (1)(c), (d), (e) or (f) or subsection (2) and who was no longer living on April 17, 1985 shall be deemed to be entitled to be registered under that provision.

Section 7 (1) (Persons not entitled to be registered as Status Indians) The following persons are not entitled to be registered: (a) a person who was registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject- matter as that paragraph, and whose name was subsequently omitted or deleted from the Indian Register under this Act; or (b) a person who is the child of a person who was registered or entitled to be registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and is also the child of a person who is not entitled to be registered.

Section 7 (2) (Limitation of Subsection (1) (a) ) Paragraph (1)(a) does not apply in respect of a female person who was, at any time prior to being registered under paragraph 11(1)(f), entitled to be registered under any other provision of this Act.

Section 7 (3) (Limitation of Subsection (1) (b) ) Paragraph (1)(b) does not apply in respect of the child of a female person who was, at any time prior to being registered under paragraph 11(1)(f), entitled to be registered under any other provision of this Act.

Section 8 (Band Lists of Band Membership) There shall be maintained in accordance with this Act for each band a Band List in which shall be entered the name of every person who is a member of that band.

Section 9 (1) (Registrar to Maintain Band Lists) Until such time as a band assumes control of its Band List, the Band List of that band shall be maintained in the Department by the Registrar.

Section 9 (2) (Continuation of Band Lists) The names in a Band List of a band immediately prior to April 17, 1985 shall constitute the Band List of that band on April 17, 1985.

Section 9 (3) (Authority of Registrar) The Registrar may at any time add to or delete from a Band List maintained in the Department the name of any person who, in accordance with this Act, is entitled or not entitled, as the case may be, to have his name included in that List.

Section 9 (4) (Information to be Entered) A Band List maintained in the Department shall indicate the date on which each name was added thereto or deleted therefrom.

Section 9 (5) (Requirement to Apply for Band Membership) The name of a person who is entitled to have his name entered in a Band List maintained in the Department is not required to be entered therein unless an application for entry therein is made to the Registrar.

Section 10 (1) (Band Control of Band Membership) A band may assume control of its own membership if it establishes membership rules for itself in writing in accordance with this section and if, after the band has given appropriate notice of its intention to assume control of its own membership, a majority of the electors of the band gives its consent to the band's control of its own membership.

Section 10 (2) (Membership Rules and Review of Decisions on Membership) A band may, pursuant to the consent of a majority of the electors of the band, (a) after it has given appropriate notice of its intention to do so, establish membership rules for itself; and (b) provide for a mechanism for reviewing decisions on membership.

Section 10 (3) (Consent of majority of all members may be required) Where the council of a band makes a by-law under paragraph 81(1)(p.4) bringing this subsection into effect in respect of the band, the consents required under subsections (1) and (2) shall be given by a majority of the members of the band who are of the full age of eighteen years.

Section 10 (4) (No loss of previous membership) Membership rules established by a band under this section may not deprive any person who had the right to have his name entered in the Band List for that band, immediately prior to the time the rules were established, of the right to have his name so entered by reason only of a situation that existed or an action that was taken before the rules came into force.

Section 10 (5) (Previous entitlement to membership) For greater certainty, subsection (4) applies in respect of a person who was entitled to have his name entered in the Band List under paragraph 11(1)(c) immediately before the band assumed control of the Band List if that person does not subsequently cease to be entitled to have his name entered in the Band List.

Section 10 (6) (Notice to Minister of Band control of membership) Where the conditions set out in subsection (1) have been met with respect to a band, the council of the band shall forthwith give notice to the Minister in writing that the band is assuming control of its own membership and shall provide the Minister with a copy of the membership rules for the band.

Section 10 (7) (Transfer of control of membership to Band) On receipt of a notice from the council of a band under subsection (6), the Minister shall, if the conditions set out in subsection (1) have been complied with, forthwith (a) give notice to the band that it has control of its own membership; and (b) direct the Registrar to provide the band with a copy of the Band List maintained in the Department.

Secton 10 (8) (Compliance with Band Membership Rules) Where a band assumes control of its membership under this section, the membership rules established by the band shall have effect from the day on which notice is given to the Minister under subsection (6), and any additions to or deletions from the Band List of the band by the Registrar on or after that day are of no effect unless they are in accordance with the membership rules established by the band.

Section 10 (9) (No further Departmental Responsibility for Band Membership) A band shall maintain its own Band List from the date on which a copy of the Band List is received by the band under paragraph (7)(b), and, subject to section 13.2, the Department shall have no further responsibility with respect to that Band List from that date.

Section 10 (10) (Additions and Deletions of Names) A band may at any time add to or delete from a Band List maintained by it the name of any person who, in accordance with the membership rules of the band, is entitled or not entitled, as the case may be, to have his name included in that list.

Section 10 (11) (Information to be Entered) A Band List maintained by a band shall indicate the date on which each name was added thereto or deleted therefrom.

Section 11 (1) (Entitlement to Band Membership on Departmental Band List) Commencing on April 17, 1985, a person is entitled to have his name entered in a Band List maintained in the Department for a band if (a) the name of that person was entered in the Band List for that band, or that person was entitled to have it entered in the Band List for that band, immediately prior to April 17, 1985; (b) that person is entitled to be registered under paragraph 6(1)(b) as a member of that band; (c) that person is entitled to be registered under paragraph 6(1)(c) and ceased to be a member of that band by reason of the circumstances set out in that paragraph; or (d) that person was born on or after April 17, 1985 and is entitled to be registered under paragraph 6(1)(f) and both parents of that person are entitled to have their names entered in the Band List or, if no longer living, were at the time of death entitled to have their names entered in the Band List.

Section 11 (2) (Additional Entitlement to Band Membership on Departmental Band List) Commencing on the day that is two years after the day that an Act entitled An Act to amend the Indian Act, introduced in the House of Commons on February 28, 1985, is assented to, or on such earlier day as may be agreed to under section 13.1, where a band does not have control of its Band List under this Act, a person is entitled to have his name entered in a Band List maintained in the Department for the band (a) if that person is entitled to be registered under paragraph 6(1)(d) or (e) and ceased to be a member of that band by reason of the circumstances set out in that paragraph; or (b) if that person is entitled to be registered under paragraph 6(1)(f) or subsection 6(2) and a parent referred to in that provision is entitled to have his name entered in the Band List or, if no longer living, was at the time of death entitled to have his name entered in the Band List.

Section 11 (3) (Deeming Provisions) For the purposes of paragraph (1)(d) and subsection (2), (a) a person whose name was omitted or deleted from the Indian Register or a band list in the circumstances set out in paragraph 6(1)(c), (d) or (e) and who was no longer living on the first day on which the person would otherwise be entitled to have the p erson's name entered in the Band List of the band of which the person ceased to be a member shall be deemed to be entitled to have the person's name so entered; and (b) a person described in paragraph (2)(b) shall be deemed to be entitled to have the person's name entered in the Band List in which the parent referred to in that paragraph is or was, or is deemed by this section to be, entitled to have the parent's name entered.

Section 11 (4) (Where Bands Amalgamate or Divide) Where a band amalgamates with another band or is divided so as to constitute new bands, any person who would otherwise have been entitled to have his name entered in the Band List of that band under this section is entitled to have his name entered in the Band List of the amalgamated band or the new band to which that person has the closest family ties, as the case may be.

Section 12 (Entitlement with Consent of Band) Commencing on the day that is two years after the day that an Act entitled An Act to amend the Indian Act, introduced in the House of Commons on February 28, 1985, is assented to, or on such earlier day as may be agreed to under section 13.1, any person who (a) is entitled to be registered under section 6, but is not entitled to have his name entered in the Band List maintained in the Department under section 11, or (b) is a member of another band, is entitled to have his name entered in the Band List maintained in the Department for a band if the council of the admitting band consents.

Section 13 (Band Membership limited to One Departmental Band List) Notwithstanding sections 11 and 12, no person is entitled to have his name entered at the same time in more than one Band List maintained in the Department.

Section 13.1 (1) (Control of Band List may be left with Department) A band may, at any time prior to the day that is two years after the day that an Act entitled An Act to amend the Indian Act, introduced in the House of Commons on February 28, 1985, is assented to, decide to leave the control of its Band List with the Department if a majority of the electors of the band gives its consent to that decision.

Section 13.1 (2) (Notice to Minister of Decision to Leave Control with Department) Where a band decides to leave the control of its Band List with the Department under subsection (1), the council of the band shall forthwith give notice to the Minister in writing to that effect. Section 13.1 (3) (Band may Subsequently take Control of Band List) Notwithstanding a decision under subsection (1), a band may, at any time after that decision is taken, assume control of its Band List under section 10.

Section 13.2 (1) (Control of Band List may be returned to Department) A band may, at any time after assuming control of its Band List under section 10, decide to return control of the Band List to the Department if a majority of the electors of the band gives its consent to that decision.

Section 13.2 (2) (Notice to Minister of Return of Control of Band List to Department) Where a band decides to return control of its Band List to the Department under subsection (1), the council of the band shall forthwith give notice to the Minister in writing to that effect and shall provide the Minister with a copy of the Band List and a copy of all the membership that were established by the band under subsection 10(2) while the band maintained its own Band List.

Section 13.2 (3) (Applicable Rules after Control of Band List returned to Department) Where a notice is given under subsection (2) in respect of a Band List, the maintenance of that Band List shall be the responsibility of the Department from the date on which the notice is received and from that time the Band List shall be maintained in accordance with the membership rules set out in section 11.

Section 13.3 (Entitlement to Membership Retained when Control of Band List Returned) A person is entitled to have his name entered in a Band List maintained in the Department pursuant to section 13.2 if that person was entitled to have his name entered, and his name was entered, in the Band List immediately before a copy of it was provided to the Minister under subsection 13.2(2), whether or not that person is also entitled to have his name entered in the Band List under section 11.

Section 14 (1) (Initial Notice of Band Lists) Within one month after the day an Act entitled An Act to amend the Indian Act, introduced in the House of Commons on February 28, 1985, is assented to, the Registrar shall provide the council of each band with a copy of the Band List for the band as it stood immediately prior to that day.

Section 14 (2) (Continuing Notice of Departmental Band Lists) Where a Band List is maintained by the Department, the Registrar shall, at least once every two months after a copy of the Band List is provided to the council of a band under subsection (1), provide the council of the band with a list of the additions to or deletions from the Band List not included in a list previously provided under this subsection.

Section 14 (3) (Posting of Band Lists) The council of each band shall, forthwith on receiving a copy of the Band List under subsection (1), or a list of additions to and deletions from its Band List under subsection (2), post the copy or the list, as the case may be, in a conspicuous place on the reserve of the band.

Section 14.1 (Inquiries about Entitlement to Indian Status and Band Membership) The Registrar shall, on inquiry from any person who believes that he or any person he represents is entitled to have his name included in the Indian Register or a Band List maintained in the Department, indicate to the person making the inquiry whether or not that name is included therein.

Section 14.2 (1) (Protests: Departmental Register and Band Lists) A protest may be made in respect of the inclusion or addition of the name of a person in, or the omission or deletion of the name of a person from, the Indian Register, or a Band List maintained in the Department, within three years after the inclusion or addition, or omission or deletion, as the case may be, by notice in writing to the Registrar, containing a brief statement of the grounds therefor.

Section 14.2 (2) (Entitlement to Make a Protest) A protest may be made under this section in respect of the Band List of a band by the council of the band, any member of the band or the person in respect of whose name the protest is made or that person's representative.

Section 14.2 (3) (Representation of Individual whose Status in Issue) A protest may be made under this section in respect of the Indian Register by the person in respect of whose name the protest is made or that person's representative.

Section 14.2 (4) (Burden of Proof on Person making Protest) The onus of establishing the grounds of a protest under this section lies on the person making the protest.

Section 14.2 (5) (Registrar to Investigate and Decide Protests) Where a protest is made to the Registrar under this section, the Registrar shall cause an investigation to be made into the matter and render a decision.

Section 14.2 (6) (Evidence Admissible on Protest) For the purposes of this section, the Registrar may receive such evidence on oath, on affidavit or in any other manner, whether or not admissible in a court of law, as the Registrar, in his discretion, sees fit or deems just.

Section 14.2 (7) (Decision of Registrar conclusive) Subject to section 14.3, the decision of the Registrar under subsection (5) is final and conclusive.

Section 14.3 (1) (Appeal of Registrar's decision on Protest) Within six months after the Registrar renders a decision on a protest under section 14.2, (a) in the case of a protest in respect of the Band List of a band, the council of the band, the person by whom the protest was made, or the person in respect of whose name the protest was made or that person's representative, or (b) in the case of a protest in respect of the Indian Register, the person in respect of whose name the protest was made or that person's representative, may, by notice in writing, appeal the decision to a court referred to in subsection (5).

Section 14.3 (2) (Notice of Appeal of Registrar's Decision) Where an appeal is taken under this section, the person who takes the appeal shall forthwith provide the Registrar with a copy of the notice of appeal.

Section 14.3 (3) (Transmittal of Record by Registrar) On receipt of a copy of a notice of appeal under subsection (2), the Registrar shall forthwith file with the court a copy of the decision being appealed together with all documentary evidence considered in arriving at that decision and any recording or transcript of any oral proceedings related thereto that were held before the Registrar.

Section 14.3 (4) (Powers of Court on Appeal of Registrar's Decision) The court may, after hearing an appeal under this section, (a) affirm, vary or reverse the decision of the Registrar; or (b) refer the subject-matter of the appeal back to the Registrar for reconsideration or further investigation.

Section 14.3 (5) (Jurisdiction of Courts to Hear Appeal of Registrar's decision) An appeal may be heard under this section (a) in the Province of Quebec, before the Superior Court for the district in which the band is situated or in which the person who made the protest resides, or for such other district as the Minister may designate; (a.1) in the Province of Ontario, before the Ontario Court (General Division); (b) in the Province of New Brunswick, Manitoba, Saskatchewan or Alberta, before the Court of Queen's Bench; (c) in the Province of Prince Edward Island or Newfoundland, before the Trial Division of the Supreme Court; or (d) in the Provinces of Nova Scotia and British Columbia, the Yukon Territory or the Northwest Territories, before the Supreme Court.

Section 15 (1) to (4) (Payments in respect of Persons Ceasing to be Band members) [Repealed, R.S., 1985, c. 32 (1st Supp.), s. 5]

Section 15 (5) (Commutation of payments under former Act) Where, prior to September 4, 1951, any woman became entitled, under section 14 of the Indian Act, chapter 98 of the Revised Statutes of Canada, 1927, or any prior provisions to the like effect, to share in the distribution of annuities, interest moneys or rents, the Minister may, in lieu thereof, pay to that woman out of the moneys of the band an amount equal to ten times the average annual amounts of the payments made to her during the ten years last preceding or, if they were paid for less than ten years, during the years they were paid.

Section 16 (1) [Repealed, R.S., 1985, c. 32 (1st Supp.), s. 6] Section 16 (2) (Transferred member's interest) A person who ceases to be a member of one band by reason of becoming a member of another band is not entitled to any interest in the lands or moneys held by Her Majesty on behalf of the former band, but is entitled to the same interest in common in lands and moneys held by Her Majesty on behalf of the latter band as other members of that band.

Section 17 (1) (Amalgamation of Bands and Creation of new Bands) The Minister may, whenever he considers it desirable, (a) amalgamate bands that, by a vote of a majority of their electors, request to be amalgamated; and (b) constitute new bands and establish Band Lists with respect thereto from existing Band Lists, or from the Indian Register, if requested to do so by persons proposing to form the new bands.

Section 17 (2) (Apportionment of Reserves and Moneys to New Band) Where pursuant to subsection (1) a new band has been established from an existing band or any part thereof, such portion of the reserve lands and funds of the existing band as the Minister determines shall be held for the use and benefit of the new band.

Section 17 (3) (No protest of Minister's decision) No protest may be made under section 14.2 in respect of the deletion from or the addition to a Band List consequent on the exercise by the Minister of any of the Minister's powers under subsection (1). Back to Index

Reserve Lands (ss. 18-41) Section 18 (1) (Reserves Held for Use and Benefit of Bands) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band.

Section 18 (2) (Use of Reserve Lands for Specified Purposes) The Minister may authorize the use of lands in a reserve for the purpose of Indian schools, the administration of Indian affairs, Indian burial grounds, Indian health projects or, with the consent of the council of the band, for any other purpose for the general welfare of the band, and may take any lands in a reserve required for those purposes, but where an individual Indian, immediately prior to the taking, was entitled to the possession of those lands, compensation for that use shall be paid to the Indian, in such amount as may be agreed between the Indian and the Minister, or, failing agreement, as may be determined in such manner as the Minister may direct. Note: The term "reserve" in this subsection does not include "designated lands": see s. 2(1) definition of "reserve".

Section 18.1 (Children may reside on reserve with member) A member of a band who resides on the reserve of the band may reside there with his dependent children or any children of whom the member has custody.

Section 19 (Surveys, Subdivisions and Roads) The Minister may (a) authorize surveys of reserves and the preparation of plans and reports with respect thereto; (b) divide the whole or any portion of a reserve into lots or other subdivisions; and (c) determine the location and direct the construction of roads in a reserve.

Section 20 (1) (Allotting Possession of Lands in Reserves to Indians) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band. Note: The term "reserve" in section 20 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 20 (2) (Certificates of Possession) The Minister may issue to an Indian who is lawfully in possession of land in a reserve a certificate, to be called a Certificate of Possession, as evidence of his right to possession of the land described therein.

Section 20 (3) (Continuation of Location Tickets) For the purposes of this Act, any person who, on September 4, 1951, held a valid and subsisting Location Ticket issued under The Indian Act, 1880, or any statute relating to the same subject- matter, shall be deemed to be lawfully in possession of the land to which the location ticket relates and to hold a Certificate of Possession with respect thereto.

Section 20 (4) (Temporary Occupation and Conditions of Use and Settlement) Where possession of land in a reserve has been allotted to an Indian by the council of the band, the Minister may, in his discretion, withhold his approval and may authorize the Indian to occupy the land temporarily and may prescribe the conditions as to use and settlement that are to be fulfilled by the Indian before the Minister approves of the allotment.

Section 20 (5) (Certificates of Occupation) Where the Minister withholds approval pursuant to subsection (4), he shall issue a Certificate of Occupation to the Indian, and the Certificate entitles the Indian, or those claiming possession by devise or descent, to occupy the land in respect of which it is issued for a period of two years from the date thereof.

Section 20 (6) (Extending Term of Certificate of Occupation) The Minister may extend the term of a Certificate of Occupation for a further period not exceeding two years, and may, at the expiration of any period during which a Certificate of Occupation is in force (a) approve the allotment by the council of the band and issue a Certificate of Possession if in his opinion the conditions as to use and settlement have been fulfilled; or (b) refuse approval of the allotment by the council of the band and declare the land in respect of which the Certificate of Occupation was issued to be available for re-allotment by the council of the band.

Section 21 (Reserve Land Register) There shall be kept in the Department a register, to be known as the Reserve Land Register, in which shall be entered particulars relating to Certificates of Possession and Certificates of Occupation and other transactions respecting lands in a reserve. Note: The term "reserve" in section 21 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 22 (Lawful Possession Deemed if Improved Lands included in Reserve) Where an Indian who is in possession of lands at the time they are included in a reserve made permanent improvements thereon before that time, he shall be deemed to be in lawful possession of those lands at the time they are included.

Section 23 (Compensation for Improvements on Removal from Reserve Lands) An Indian who is lawfully removed from lands in a reserve on which he has made permanent improvements may, if the Minister so directs, be paid compensation in respect thereof in an amount to be determined by the Minister, either from the person who goes into possession or from the funds of the band, at the discretion of the Minister. Note: The term "reserve" in section 23 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 24 (Transfer of Lawful Possession) An Indian who is lawfully in possession of lands in a reserve may transfer to the band or another member of the band the right to possession of the land, but no transfer or agreement for the transfer of the right to possession of lands in a reserve is effective until it is approved by the Minister. Note: The term "reserve" in section 24 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 25 (1) (Transfer of Interest of Indian Disentitled to Reside on Reserve) An Indian who ceases to be entitled to reside on a reserve may, within six months or such further period as the Minister may direct, transfer to the band or another member of the band the right to possession of any lands in the reserve of which he was lawfully in possession. Note: The term "reserve" in section 25 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 25 (2) (Compensation for Improvements if no Transfer of Interest) Where an Indian does not dispose of his right of possession in accordance with subsection (1), the right to possession of the land reverts to the band, subject to the payment to the Indian who was lawfully in possession of the land, from the funds of the band, of such compensation for permanent improvements as the Minister may determine. Note: The term "reserve" in section 25 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 26 (Correction of Certificates or Location Tickets) Whenever a Certificate of Possession or Occupation or a Location Ticket issued under The Indian Act, 1880, or any statute relating to the same subject-matter was, in the opinion of the Minister, issued to or in the name of the wrong person, through mistake, or contains any clerical error or misnomer or wrong description of any material fact therein, the Minister may cancel the Certificate or Location Ticket and issue a corrected Certificate in lieu thereof.

Section 27 (Cancellation of Certificates or Location Tickets) The Minister may, with the consent of the holder thereof, cancel any Certificate of Possession or Occupation or Location Ticket referred to in section 26, and may cancel any Certificate of Possession or Occupation or Location Ticket that in his opinion was issued through fraud or in error.

Section 28 (1) (Indian Deeds, Leases, etc. are Void) Subject to subsection (2), any deed, lease, contract, instrument,document or agreement of any kind whether written or oral, by which a band or a member of a band purports to permit a person other than a member of that band to occupy or use a reserve or reside or otherwise exercise any rights on a reserve is void. Note: The term "reserve" in section 28 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 28 (2) (Minister may issue Permits) The Minister may by permit in writing authorize any person for a period not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a reserve.

Section 29 (Reserve Lands exempt from Seizure) Reserve lands are not subject to seizure under legal process.

Section 30 (Trespass on reserves) A person who trespasses on a reserve is guilty of an offence and liable on summary conviction to a fine not exceeding fifty dollars or to imprisonment for a term not exceeding one month or to both.

Section 31 (1) (Attorney General may Exhibit Information Alleging Trespass, etc.) Without prejudice to section 30, where an Indian or a band alleges that persons other than Indians are or have been (a) unlawfully in occupation or possession of, (b) claiming adversely the right to occupation or possession of, or (c) trespassing on a reserve or part of a reserve, the Attorney General of Canada may exhibit an information in the Federal Court claiming, on behalf of the Indian or band, the relief or remedy sought.

Section 31 (2) (Information deemed proceeding by the Crown) An information exhibited under subsection (1) shall, for all purposes of the Federal Court Act, be deemed to be a proceeding by the Crown within the meaning of that Act.

Section 31 (3) (Other remedies preserved) Nothing in this section shall be construed to impair, abridge or otherwise affect any right or remedy that, but for this section, would be available to Her Majesty or to an Indian or a band.

Section 32 (1) (Sale or Barter of Produce Void without Approval) A transaction of any kind whereby a band or a member thereof purports to sell, barter, exchange, give or otherwise dispose of cattle or other animals, grain or hay, whether wild or cultivated, or root crops or plants or their products from a reserve in Manitoba, Saskatchewan or Alberta, to a person other than a member of that band, is void unless the superintendent approves the transaction in writing.

Section 32 (2) (Minister may exempt Bands or members from this section) The Minister may at any time by order exempt a band and the members thereof or any member thereof from the operation of this section, and may revoke any such order.

Section 33 (Offence to violate section 32(1)) Every person who enters into a transaction that is void under subsection 32(1) is guilty of an offence. Note: The goods or chattels may also be seized under s. 103.

Section 34 (1) (Maintenance of roads, bridges, etc.) A band shall ensure that the roads, bridges, ditches and fences within the reserve occupied by that band are maintained in accordance with instructions issued from time to time by the superintendent.

Section 34 (2) (Minister may cause work to be carried out) Where, in the opinion of the Minister, a band has not carried out the instructions of the superintendent issued under subsection (1), the Minister may cause the instructions to be carried out at the expense of the band or any member thereof and may recover the cost thereof from any amounts that are held by Her Majesty and are payable to the band or member.

Section 35 (1) (Expropriation of Reserve Lands with Consent of Governor in Council) Where by an Act of Parliament or a provincial legislature Her Majesty in right of a province, a municipal or local authority or a corporation is empowered to take or to use lands or any interest therein without the consent of the owner, the power may, with the consent of the Governor in Council and subject to any terms that may be prescribed by the Governor in Council, be exercised in relation to lands in a reserve or any interest therein.

Section 35 (2) (Procedure on Expropriation) Unless the Governor in Council otherwise directs, all matters relating to compulsory taking or using of lands in a reserve under subsection (1) are governed by the statute by which the powers are conferred.

Section 35 (3) (Grant in Lieu of Expropriation) Whenever the Governor in Council has consented to the exercise by a province, a municipal or local authority or a corporation of the powers referred to in subsection (1), the Governor in Council may, in lieu of the province, authority or corporation taking or using the lands without the consent of the owner, authorize a transfer or grant of the lands to the province, authority or corporation, subject to any terms that may be prescribed by the Governor in Council.

Section 35 (4) (Compensation to be paid to Receiver General) Any amount that is agreed on or awarded in respect of the compulsory taking or using of land under this section or that is paid for a transfer or grant of land pursuant to this section shall be paid to the Receiver General for the use and benefit of the band or for the use and benefit of any Indian who is entitled to compensation or payment as a result of the exercise of the powers referred to in subsection (1).

Section 36 (Special Reserves) Where lands have been set apart for the use and benefit of a band and legal title thereto is not vested in Her Majesty, this Act applies as though the lands were a reserve within the meaning of this Act. Note 1: The federal Department of Justice has long taken the position that this section does not mean what it says. The "official" position is that lands must be set aside by order-in-council, even if title is not with the Crown. There is no formal procedure for the creation of a reserve or special reserve under the Act. Many First Nations do rely on this section, together with provincial legislation (e.g., in Ontario and Manitoba), to hold lands "in trust for the use and benefit of the Band" and exempt those lands from municipal assessment. Note 2: The term "reserve" in section 36 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 37 (1) (No Sale of Reserve Lands without Surrender) Lands in a reserve shall not be sold nor title to them conveyed until they have been absolutely surrendered to Her Majesty pursuant to subsection 38(1) by the band for whose use and benefit in common the reserve was set apart. Note 1: Due to the provincial Crown interest recognized in the St. Catherine's Milling Case (1888), 14 App. Cas. 45 (J.C.P.C.), and the lack of federal/provincial agreements to give effect to sales for the benefit of First Nations, it is not advisable to surrender reserve lands under this subsection in Quebec, Prince Edward Island, Nova Scotia or New Brunswick. See also, Smith v. The Queen, [1983] S.C.R. 554, and the Guerin case. Note 2: The term "reserve" in section 37 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 37 (2) (Other transactions) Except where this Act otherwise provides, lands in a reserve shall not be leased nor an interest in them granted until they have been surrendered to Her Majesty pursuant to subsection 38(2) by the band for whose use and benefit in common the reserve was set apart.

Section 38 (1) (Surrender of Reserve Lands to Her Majesty for Sale) A band may absolutely surrender to Her Majesty, conditionally or unconditionally all of the rights and interests of the band and its members in all or part of a reserve. Note 1: This provision, and the parallel provision in subsection (2) for designation, are the modern statutory expression of the principles set out in the Royal Proclamation of 1763: see, e.g., the reasons of Dickson J. in the Guerin case. Note 2: The term "reserve" in section 38 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 38 (2) (Designation of Reserve Lands to Her Majesty for Leasing, etc.) A band may, conditionally or unconditionally, designate, by way of a surrender to Her Majesty that is not absolute, any right or interest of the band and its members in all or part of a reserve, for the purpose of its being leased or a right or interest therein being granted.

Section 39 (1) (Mandatory Procedure for Surrenders and Designations) An absolute surrender or a designation is void unless (a) it is made to Her Majesty; (b) it is assented to by a majority of the electors of the band (i) at a general meeting of the band called by the council of the band, (ii) at a special meeting of the band called by the Minister for the purpose of considering a proposed absolute surrender or designation, or (iii) by a referendum as provided in the regulations; and (c) it is accepted by the Governor in Council. Note: The procedure for Band voting on surrenders or designations is set out in the Indian Referendum Regulations, C.R.C. 1978, c. 957 as amended by S.O.R./94-369. These regulations also make provision for a second vote under subsection (2).

Section 39 (2) (Minister may call Second Meeting or Referendum) Where a majority of the electors of a band did not vote at a meeting or referendum called pursuant to subsection (1), the Minister may, if the proposed absolute surrender or designation was assented to by a majority of the electors who did vote, call another meeting by giving thirty days notice thereof or another referendum as provided in the regulations.

Section 39 (3) (Majority at Second Meeting or Referendum can Assent) Where a meeting is called pursuant to subsection (2) and the proposed absolute surrender or designation is assented to at the meeting or referendum by a majority of the electors voting, the surrender or designation shall be deemed, for the purposes of this section, to have been assented to by a majority of the electors of the band.

Section 39 (4) (Secret Ballot) The Minister may, at the request of the council of the band or whenever he considers it advisable, order that a vote at any meeting under this section shall be by secret ballot. Note: The Indian Referendum Regulations, noted above, provide that voting shall be by secret ballot unless the Minister orders otherwise.

Section 39 (5) (Officer of Department must Attend) Every meeting under this section shall be held in the presence of the superintendent or some other officer of the Department designated by the Minister.

Section 40 (Certification of Approved Surrender or Designation) A proposed absolute surrender or designation that is assented to by the band in accordance with section 39 shall be certified on oath by the superintendent or other officer who attended the meeting and by the chief or a member of the council of the band, and then submitted to the Governor in Council for acceptance or refusal.

Section 41 (Powers to Implement Surrender or Designation) An absolute surrender or a designation shall be deemed to confer all rights that are necessary to enable Her Majesty to carry out the terms of the surrender or designation. Note: The powers of the Crown to act with respect to the Bands' interests are limited by the terms of the surrender or designation, by other provisions of this Act, by any operative fiduciary obligations (see the Guerin case, and by regulations. Relevant regulations are noted at section 53 (1) and section 57. Back to Index

Indian Estates and Guardianship (ss. 42-52.5) Section 42 (1) (Minister Empowered in respect of Property of Deceased Indians) Subject to this Act, all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister and shall be exercised subject to and in accordance with regulations of the Governor in Council.

Section 42 (2) (Governor in Council may make Regulations) The Governor in Council may make regulations providing that a deceased Indian who at the time of his death was in possession of land in a reserve shall, in such circumstances and for such purposes as the regulations prescribe, be deemed to have been at the time of his death lawfully in possession of that land. Note 1: See Indian Estates Regulations, C.R.C. 1978, c. 954. Note 2: The term "reserve" in section 42 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 42 (3) (Application of Regulations) Regulations made under subsection (2) may be made applicable to estates of Indians who died before, on or after September 4, 1951.

Section 43 (Specific Powers of Minister in respect of Indian Estates) Without restricting the generality of section 42, the Minister may (a) appoint executors of wills and administrators of estates of deceased Indians, remove them and appoint others in their stead; (b) authorize executors to carry out the terms of the wills of deceased Indians; (c) authorize administrators to administer the property of Indians who die intestate; (d) carry out the terms of wills of deceased Indians and administer the property of Indians who die intestate; and (e) make or give any order, direction or finding that in his opinion it is necessary or desirable to make or give with respect to any matter referred to in section 42.

Section 44 (1) (Courts may Exercise Jurisdiction with Consent of Minister) The court that would have jurisdiction if a deceased were not an Indian may, with the consent of the Minister, exercise, in accordance with this Act, the jurisdiction and authority conferred on the Minister by this Act in relation to testamentary matters and causes and any other powers, jurisdiction and authority ordinarily vested in that court.

Section 44 (2) (Minister may Refer Matter to a Court) The Minister may direct in any particular case that an application for the grant of probate of the will or letters of administration shall be made to the court that would have jurisdiction if the deceased were not an Indian, and the Minister may refer to that court any question arising out of any will or the administration of any estate.

Section 44 (3) (Enforcing Court Orders relating to Reserve Lands) A court that is exercising any jurisdiction or authority under this section shall not without the consent in writing of the Minister enforce any order relating to real property on a reserve. Note: The term "reserve" in section 44 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 45 (1) (Indians may make Wills) Nothing in this Act shall be construed to prevent or prohibit an Indian from devising or bequeathing his property by will.

Section 45 (2) (Form of Indian Will) The Minister may accept as a will any written instrument signed by an Indian in which he indicates his wishes or intention with respect to the disposition of his property on his death. Note: While not a strict legal requirement, Indians making wills would be well advised to make them in conformity with the laws of the province or territory where they ordinarily reside. At some future date, it is likely that this will become a formal requirement and, even if it does not, wills made to conform with provincial laws will not easily be set aside.

Section 45 (3) (Probate of Indian will) No will executed by an Indian is of any legal force or effect as a disposition of property until the Minister has approved the will or a court has granted probate thereof pursuant to this Act.

Section 46 (1) (Minister may Declare Indian Will Void) The Minister may declare the will of an Indian to be void in whole or in part if he is satisfied that (a) the will was executed under duress or undue influence; (b) the testator at the time of execution of the will lacked testamentary capacity; (c) the terms of the will would impose hardship on persons for whom the testator had a responsibility to provide; (d) the will purports to dispose of land in a reserve in a manner contrary to the interest of the band or contrary to this Act; (e) the terms of the will are so vague, uncertain or capricious that proper administration and equitable distribution of the estate of the deceased would be difficult or impossible to carry out in accordance with this Act; or (f) the terms of the will are against the public interest. Note: The term "reserve" in section 46 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 46 (2) (Intestacy if will declared void) Where a will of an Indian is declared by the Minister or by a court to be wholly void, the person executing the will shall be deemed to have died intestate, and where the will is so declared to be void in part only, any bequest or devise affected thereby, unless a contrary intention appears in the will, shall be deemed to have lapsed.

Section 47 (Appeal from Minister's Decision about Indian estates) A decision of the Minister made in the exercise of the jurisdiction or authority conferred on him by section 42, 43 or 46 may, within two months from the date thereof, be appealed by any person affected thereby to the Federal Court, if the amount in controversy in the appeal exceeds five hundred dollars or if the Minister consents to an appeal.

Section 48 (1) (Distribution of Property on Intestacy: Estate Where the net value of the estate of an intestate does not, in the opinion of the Minister, exceed seventy-five thousand dollars or such other amount as may be fixed by order of the Governor in Council, the estate shall go to the widow. Section 48 (2) (Distribution of Property on Intestacy: Estate >$75,000) Where the net value of the estate of an intestate, in the opinion of the Minister, exceeds seventy- five thousand dollars, or such other amount as may be fixed by order of the Governor in Council, seventy-five thousand dollars, or such other amount as may be fixed by order of the Governor in Council, shall go to the widow, and (a) if the intestate left no issue, the remainder shall go to the widow, (b) if the intestate left one child, one-half of the remainder shall go to the widow, and (c) if the intestate left more than one child, one-third of the remainder shall go to the widow, and where a child has died leaving issue and that issue is alive at the date of the intestate's death, the widow shall take the same share of the estate as if the child had been living at that date.

Section 48 (3) (Adequate provision for Widow and Children on Intestacy) Notwithstanding subsections (1) and (2), (a) where in any particular case the Minister is satisfied that any children of the deceased will not be adequately provided for, he may direct that all or any part of the estate that would otherwise go to the widow shall go to the children; and (b) the Minister may direct that the widow shall have the right, during her widowhood, to occupy any lands in a reserve that were occupied by her deceased husband at the time of his death. Note: The term "reserve" in section 48 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 48 (4) (Distribution to Issue on Intestacy) Where an intestate dies leaving issue, his estate shall be distributed, subject to the rights of the widow, if any, per stirpes among such issue.

Section 48 (5) (Distribution to Father and Mother on Intestacy) Where an intestate dies leaving no widow or issue, his estate shall go to his father and mother in equal shares if both are living, but if either of them is dead the estate shall go to the survivor.

Section 48 (6) (Distribution to Siblings and their Issue on Intestacy) Where an intestate dies leaving no widow or issue or father or mother, his estate shall be distributed among his brothers and sisters in equal shares, and where any brother or sister is dead the children of the deceased brother or sister shall take the share their parent would have taken if living, but where the only persons entitled are children of deceased brothers and sisters, they shall take per capita.

Section 48 (7) (Next-of-Kin Taking on Intestacy) Where an intestate dies leaving no widow, issue, father, mother, brother or sister, and no children of any deceased brother or sister, his estate shall go to his next-of-kin.

Section 48 (8) (Distribution among Next-of-Kin on Intestacy) Where an estate goes to the next-of-kin, it shall be distributed equally among the next-of-kin of equal degree of consanguinity to the intestate and those who legally represent them, but in no case shall representation be admitted after brothers' and sisters' children, and any interest in land in a reserve shall vest in Her Majesty for the benefit of the band if the nearest of kin of the intestate is more remote than a brother or sister. Note: The term "reserve" in section 48 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 48 (9) (Degrees of Kinship for purposes of Intestacy) For the purposes of this section, degrees of kindred shall be computed by counting upward from the intestate to the nearest common ancestor and then downward to the relative, and the kindred of the half-blood shall inherit equally with those of the whole-blood in the same degree.

Section 48 (10) (Descendants and Relatives Born After Intestate's Death) Descendants and relatives of an intestate begotten before his death but born thereafter shall inherit as if they had been born in the lifetime of the intestate and had survived him.

Section 48 (11) (Estate not Disposed of by Will Distributed as on Intestacy) All such estate as is not disposed of by will shall be distributed as if the testator had died intestate and had left no other estate.

Section 48 (12) (No Dower or Estate by Curtesy) No widow is entitled to dower in the land of her deceased husband dying intestate, and no husband is entitled to an estate by curtesy in the land of his deceased wife dying intestate, and there is no community of real or personal property situated in a reserve.

Section 48 (13) [Repealed, R.S., 1985, c. 32 (1st Supp.), s. 9]

Section 48 (14) [Repealed, R.S., 1985, c. 32 (1st Supp.), s. 9]

Section 48 (15) ("Widow" includes "Widower") This section applies in respect of an intestate woman as it applies in respect of an intestate man, and for the purposes of this section "widow" includes "widower".

Section 49 (Heir's Possession of Reserve Lands) A person who claims to be entitled to possession or occupation of lands in a reserve by devise or descent shall be deemed not to be in lawful possession or occupation of those lands until the possession is approved by the Minister. Note: The term "reserve" in section 48 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 50 (1) (No right to Reside by Devise or Descent) A person who is not entitled to reside on a reserve does not by devise or descent acquire a right to possession or occupation of land in that reserve. Note 1: See R. v. Devereux, [1965] S.C.R. 567. Note 2: The term "reserve" in section 50 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 50 (2) (Sale of Estate Interest if no Right to Reside) Where a right to possession or occupation of land in a reserve passes by devise or descent to a person who is not entitled to reside on a reserve, that right shall be offered for sale by the superintendent to the highest bidder among persons who are entitled to reside on the reserve and the proceeds of the sale shall be paid to the devisee or descendant, as the case may be.

Section 50 (3) (Lands revert to Band if no Sale of Estate Interest) Where no tender is received within six months or such further period as the Minister may direct after the date when the right to possession or occupation of land is offered for sale under subsection (2), the right shall revert to the band free from any claim on the part of the devisee or descendant, subject to the payment, at the discretion of the Minister, to the devisee or descendant, from the funds of the band, of such compensation for permanent improvements as the Minister may determine.

Section 50 (4) (No Right of Possession under Sale until Approved by Minister) The purchaser of a right to possession or occupation of land under subsection (2) shall be deemed not to be in lawful possession or occupation of the land until the possession is approved by the Minister.

Section 51 (1) (Minister's Jurisdiction over Estates of Mentally Incompetent Indians) Subject to this section, all jurisdiction and authority in relation to the property of mentally incompetent Indians is vested exclusively in the Minister.

Section 51 (2) (Specific Powers of Minister) Without restricting the generality of subsection (1), the Minister may (a) appoint persons to administer the estates of mentally incompetent Indians; (b) order that any property of a mentally incompetent Indian shall be sold, leased, alienated, mortgaged, disposed of or otherwise dealt with for the purpose of (i) paying his debts or engagements, (ii) discharging encumbrances on his property, (iii) paying debts or expenses incurred for his maintenance or otherwise for his benefit, or (iv) paying or providing for the expenses of future maintenance; and (c) make such orders and give such directions as he considers necessary to secure the satisfactory management of the estates of mentally incompetent Indians.

Section 51 (3) (Property of Mentally Incompetent Indian Off Reserve) The Minister may order that any property situated off a reserve and belonging to a mentally incompetent Indian shall be dealt with under the laws of the province in which the property is situated. Note: The term "reserve" in section 51 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 52 (Property of Infant Children of Indians) The Minister may administer or provide for the administration of any property to which infant children of Indians are entitled, and may appoint guardians for that purpose. Note: For purposes of this section, refer to the definition of "child" in section 2 (1).

Section 52.1 (1) (Distributions of Capital Moneys to Infants) The council of a band may determine that the payment of not more than three thousand dollars, or such other amount as may be fixed by order of the Governor in Council, in a year of the share of a distribution under paragraph 64(1)(a) that belongs to an infant child who is a member of the band is necessary or proper for the maintenance, advancement or other benefit of the child.

Section 52.1 (2) (Council Decision on Distribution of Capital Moneys to Infant) Before making a determination under subsection (1), the council of the band must (a) post in a conspicuous place on the reserve fourteen days before the determination is made a notice that it proposes to make such a determination; and (b) give the members of the band a reasonable opportunity to be heard at a general meeting of the band held before the determination is made.

Section 52.1 (3) (Minister to Make Payment to Person Responsible for Infant) Where the council of the band makes a determination under subsection (1) and notifies the Minister, at the time it gives its consent to the distribution pursuant to paragraph 64(1)(a), that it has made that determination and that, before making it, it complied with subsection (2), the Minister shall make a payment described in subsection (1) for the maintenance, advancement or other benefit of the child to a parent or person who is responsible for the care and custody of the child or, if so requested by the council on giving its consent to that distribution, to the council.

Section 52.2 (Payment to Persons Responsible for Infant in Any Event) The Minister may, regardless of whether a payment is made under section 52.1, pay all or part of any money administered by the Minister under section 52 that belongs to an infant child of an Indian to a parent or person who is responsible for the care and custody of the child or otherwise apply all or part of that money if (a) the Minister is requested in writing to do so by the parent or the person responsible; and (b) in the opinion of the Minister, the payment or application is necessary or proper for the maintenance, advancement or other benefit of the child.

Section 52.3 (1) (Lump Sum Payment to Child on Attaining Majority) Where a child of an Indian attains the age of majority, the Minister shall pay any money administered by the Minister under section 52 to which the child is entitled to that child in one lump sum.

Section 52.3 (2) (Extending Payments on Majority over Three Years) Notwithstanding subsection (1), where requested in writing to do so before a child of an Indian attains the age of majority by a parent or a person who is responsible for the care and custody of the child or by the council of the band of which the child is a member, the Minister may, instead of paying the money in one lump sum, pay it in instalments during a period beginning on the day the child attains the age of majorityand ending not later than the day that is three years after that day.

Section 52.4 (Relief from Liability in respect of Payment) Where, in a proceeding in respect of the share of a distribution under paragraph 64(1)(a) or of money belonging to an infant child that was paid pursuant to section 52.1, 52.2 or 52.3, it appears to the court that the Minister, the band, its council or a member of that council acted honestly and reasonably and ought fairly to be relieved from liability in respect of the payment, the court may relieve the Minister, band, council or member, either in whole or in part, from liability in respect of the payment.

Section 52.5 (1) (Duties Discharged by Receipt from Parent or Person Responsible) The receipt in writing from a parent or person who is responsible for the care and custody of an infant child for a payment made pursuant to section 52.1 or 52.2 (a) discharges the duty of the Minister, the band, its council and each member of that council to make the payment to the extent of the amount paid; and (b) discharges the Minister, the band, its council and each member of that council from seeing to its application or being answerable for its loss or misapplication.

Section 52.5 (2) (Minister Discharged by Receipt from Council) The receipt in writing from the council of the band of which an infant child is a member for a payment made pursuant to section 52.1 (a) discharges the duty of the Minister to make the payment to the extent of the amount paid; and (b) discharges the Minister from seeing to the application of the amount paid or being answerable for its loss or misapplication. Back to Index

Land Management (ss. 53-60) Section 53 (1) (Management of Surrendered and Designated Lands) The Minister or a person appointed by the Minister for the purpose may, in accordance with this Act and the terms of the absolute surrender or designation, as the case may be, (a) manage or sell absolutely surrendered lands; or (b) manage, lease or carry out any other transaction affecting designated lands. Note: If the interest to be managed is an oil and gas interest, the Indian Oil and Gas Act, R.S.C. 1985, c. I-7, and Regulations, C.R.C. 1978, c. 963 as am. SOR/81-340, apply.

Section 53 (2) (Claim for Grant on behalf of Deceased Purchaser) Where the original purchaser of surrendered lands is dead and the heir, assignee or devisee of the original purchaser applies for a grant of the lands, the Minister may, on receipt of proof in such manner as he directs and requires in support of any claim for the grant and on being satisfied that the claim has been equitably and justly established, allow the claim and authorize a grant to issue accordingly.

Section 53 (3) (Restrictions on Acquisition of Interests in Managed Lands) No person who is appointed pursuant to subsection (1) or who is an officer or a servant of Her Majesty employed in the Department may, except with the approval of the Governor in Council, acquire directly or indirectly any interest in absolutely surrendered or designated lands.

Section 54 (Assignments of Interests in Surrendered or Designated Lands) Where absolutely surrendered lands are agreed to be sold and letters patent relating thereto have not issued, or where designated lands are leased or an interest in them granted, the purchaser, lessee or other person who has an interest in the absolutely surrendered or designated lands may, with the approval of the Minister, assign all or part of that interest to any other person.

Section 55 (1) (Surrendered and Designated Lands Register) There shall be maintained in the Department a register, to be known as the Surrendered and Designated Lands Register, in which shall be recorded particulars in connection with any transaction affecting absolutely surrendered or designated lands. Note: The former Surrendered Lands Register was continued by R.S.C. 1985, c. 17 (4th Supp.), s. 7 (2).

Section 55 (2) (No Conditional Assignments) A conditional assignment shall not be registered.

Section 55 (3) (Proof of Execution of Assignment may be Required) Registration of an assignment may be refused until proof of its execution has been furnished.

Section 55 (4) (Effect of Registration of Assignment) An assignment registered under this section is valid against an unregistered assignment or an assignment subsequently registered.

Section 56 (Certificate of Registration of Assignment) Where an assignment is registered, there shall be endorsed on the original copy thereof a certificate of registration signed by the Minister or by an officer of the Department authorized by the Minister to sign such certificates.

Section 57 (Governor in Council Regulations) The Governor in Council may make regulations (a) authorizing the Minister to grant licences to cut timber on surrendered lands, or, with the consent of the council of the band, on reserve lands; (b) imposing terms, conditions and restrictions with respect to the exercise of rights conferred by licences granted under paragraph (a); (c) providing for the disposition of surrendered mines and minerals underlying lands in a reserve; (d) prescribing the punishment, not exceeding one hundred dollars or imprisonment for a term not exceeding three months or both, that may be imposed on summary conviction for contravention of any regulation made under this section; and (e) providing for the seizure and forfeiture of any timber or minerals taken in contravention of any regulation made under this section. Note: Regulations apparently enacted pursuant to this section include . The Indian Timber Regulations, C.R.C. 1978, c. 961 as am. SOR/93-244, and . The Indian Mining Regulations, C.R.C. 1978, c. 956, as am. SOR/90-468.

Section 58 (1) (Uncultivated or Unused Reserve Land) Where land in a reserve is uncultivated or unused, the Minister may, with the consent of the council of the band, (a) improve or cultivate that land and employ persons therefor, and authorize and direct the expenditure of such amount of the capital funds of the band as he considers necessary for that improvement or cultivation including the purchase of such stock, machinery or material or for the employment of such labour as the Minister considers necessary; (b) where the land is in the lawful possession of any individual, grant a lease of that land for agricultural or grazing purposes or for any purpose that is for the benefit of the person in possession of the land; and (c) where the land is not in the lawful possession of any individual, grant for the benefit of the band a lease of that land for agricultural or grazing purposes. Note 1: The term "reserve" in section 58 does not include "designated lands": see s. 2(1) definition of "reserve". Note 2: See also section 71 which authorizes the Minister to operate farms on a reserve.

Section 58 (2) (Payment of Rent or Proceeds; Adjustment for Improvements) Out of the proceeds derived from the improvement or cultivation of lands pursuant to paragraph (1)(b), a reasonable rent shall be paid to the individual in lawful possession of the lands or any part thereof and the remainder of the proceeds shall be placed to the credit of the band, but if improvements are made on the lands occupied by an individual, the Minister may deduct the value of the improvements from the rent payable to the individual under this subsection.

Section 58 (3) (Locatee Leases) The Minister may lease for the benefit of any Indian, on application of that Indian for that purpose, the land of which the Indian is lawfully in possession without the land being designated. Note 1: There is a distinction between the respective interests of the Band and the individual locatee under subsections (2) and (3). See also subsection (5) and sections 23 and 50 (3). The underlying theory of a communal interest in all reserve lands is, as yet, unacknowledged by the courts; see, e.g., Boyer v. Canada, [1986] 2 F.C. 393 (C.A.). Note 2: There is a further question whether leasehold interests created under section 58 can be mortgaged: see section 89 (1.1). The present section does not involve any designation of lands.

Section 58 (4) (Disposition of Grass, Dead Timber, Sand and Gravel, etc.) Notwithstanding anything in this Act, the Minister may, without an absolute surrender or a designation (a) dispose of wild grass or dead or fallen timber; and (b) with the consent of the council of the band, dispose of sand, gravel, clay and other non-metallic substances on or under lands in a reserve, or, where that consent cannot be obtained without undue difficulty or delay, may issue temporary permits for the taking of sand, gravel, clay and other non-metallic substances on or under lands in a reserve, renewable only with the consent of the council of the band.

Section 58 (5) (Payment of Proceeds) The proceeds of the transactions referred to in subsection (4) shall be credited to band funds or shall be divided between the band and the individual Indians in lawful possession of the lands in such shares as the Minister may determine.

Section 59 (Adjustment of Amounts Owing from Land Transactions or Indian Loans) The Minister may, with the consent of the council of a band, (a) reduce or adjust the amount payable to Her Majesty in respect of a transaction affecting absolutely surrendered lands, designated lands or other lands in a reserve or the rate of interest payable thereon; and (b) reduce or adjust the amount payable to the band by an Indian inrespect of a loan made to the Indian from band funds. Note: The term "reserve" in section 59 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 60 (1) (Band Control over Reserve Lands) The Governor in Council may at the request of a band grant to the band the right to exercise such control and management over lands in the reserve occupied by that band as the Governor in Council considers desirable. Note 1: See section 81 (1) (i), and sections 17 and 20. The actual limits of such delegation of authority have not been determined. It is, however, unlikely, that the Governor in Council could delegate authority to sell or lease reserve lands without a surrender or designation, since that power is expressly withheld from section 4 (2). Note 2: The term "reserve" in section 60 does not include "designated lands": see s. 2(1) definition of "reserve".

Section 60 (2) (Withdrawal of Band Control over Reserve Lands) The Governor in Council may at any time withdraw from a band a right conferred on the band under subsection (1). Back to Index

Indian Moneys and Finance (ss. 61-72) Section 61 (1) (Indian Moneys to be Held for Use and Benefit of Bands) Indian moneys shall be expended only for the benefit of the Indians or bands for whose use and benefit in common the moneys are received or held, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which Indian moneys are used or are to be used is for the use and benefit of the band. Note: The discretion conferred upon the Governor in Council in this subsection is in the same terms as the discretion conferred under section 18 (1) in relation to Indian reserves. In the Guerin case, the Supreme Court of Canada found that these words imposed an enforceable fiduciary obligation on the Crown.

Section 61 (2) (Interest on Indian Moneys) Interest on Indian moneys held in the Consolidated Revenue Fund shall be allowed at a rate to be fixed from time to time by the Governor in Council. Section 62 (Capital and Revenue Moneys) All Indian moneys derived from the sale of surrendered lands or the sale of capital assets of a band shall be deemed to be capital moneys of the band and all Indian moneys other than capital moneys shall be deemed to be revenue moneys of the band.

Section 63 (Payment of Rent, etc. to Individual Indians) Notwithstanding the Financial Administration Act, where moneys to which an Indian is entitled are paid to a superintendent under any lease or agreement made under this Act, the superintendent may pay the moneys to the Indian.

Section 64 (1) (Expenditure of Capital Moneys with Consent of Council) With the consent of the council of a band, the Minister may authorize and direct the expenditure of capital moneys of the band (a) to distribute per capita to the members of the band an amount not exceeding fifty per cent of the capital moneys of the band derived from the sale of surrendered lands; (b) to construct and maintain roads, bridges, ditches and watercourses on reserves or on surrendered lands; (c) to construct and maintain outer boundary fences on reserves; (d) to purchase land for use by the band as a reserve or as an addition to a reserve; (e) to purchase for the band the interest of a member of the band inlands on a reserve; (f) to purchase livestock and farm implements, farm equipment or machinery for the band; (g) to construct and maintain on or in connection with a reserve such permanent improvements or works as in the opinion of the Minister will be of permanent value to the band or will constitute a capital investment; (h) to make to members of the band, for the purpose of promoting the welfare of the band, loans not exceeding one-half of the total value of (i) the chattels owned by the borrower, and (ii) the land with respect to which he holds or is eligible to receive a Certificate of Possession, and may charge interest and take security therefor; (i) to meet expenses necessarily incidental to the management of lands on a reserve, surrendered lands and any band property; (j) to construct houses for members of the band, to make loans to members of the band for building purposes with or without security and to provide for the guarantee of loans made to members of the band for building purposes; and (k) for any other purpose that in the opinion of the Minister is for the benefit of the band.

Section 64 (2) (Payments to Individuals out of Capital Moneys) The Minister may make expenditures out of the capital moneys of a band in accordance with by- laws made pursuant to paragraph 81(1)(p.3) for the purpose of making payments to any person whose name was deleted from the Band List of the band in an amount not exceeding one per capita share of the capital moneys. Section 64.1 (1) (Set-off for Enfranchisement Shares) A person who has received an amount that exceeds one thousand dollars under paragraph 15(1)(a), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, by reason of ceasing to be a member of a band in the circumstances set out in paragraph 6(1)(c), (d) or (e) is not entitled to receive an amount under paragraph 64(1)(a) until such time as the aggregate of all amounts that the person would, but for this subsection, have received under paragraph 64(1)(a) is equal to the amount by which the amount that the person received under paragraph 15(1)(a), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, exceeds one thousand dollars, together with any interest thereon. Note: This section was added by Bill C-31 and addresses the fact that many persons reinstated to status and Band membership by that enactment had previously received per capita shares of Band funds when their names were struck from the Band Lists. Under this provision, the first $1000 of that earlier payment is written off, but the Band may recover the amount by which the "enfranchisement share" exceeded $1000, together with interest out future payments from Band funds to which the individual may become entitled, together with interest. This recovery process is initiated by a Band by-law pursuant to section 81 (1) (p.4) and effected by the next subsection.

Section 64.1 (2) (Band By-law to Effect Set-off for Enfranchisement Shares) Where the council of a band makes a by-law under paragraph 81(1)(p.4) bringing this subsection into effect, a person who hasreceived an amount that exceeds one thousand dollars under paragraph 15(1)(a), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, by reason of ceasing to be a member of the band in the circumstances set out in paragraph 6(1)(c), (d) or (e) is not entitled to receive any benefit afforded to members of the band as individuals as a result of the expenditure of Indian moneys under paragraphs 64(1)(b) to (k), subsection 66(1) or subsection 69(1) until the amount by which the amount so received exceeds one thousand dollars, together with any interest thereon, has been repaid to the band.

Section 64.1 (3) (Determination of Interest on Enfranchisement Shares) The Governor in Council may make regulations prescribing the manner of determining interest for the purpose of subsections (1) and (2). Note: See Calculation of Interest Regulations, SOR/87-631. Section 65 (Expenditure of Capital Moneys without Consent of Council) The Minister may pay from capital moneys (a) compensation to an Indian in an amount that is determined in accordance with this Act to be payable to him in respect of land compulsorily taken from him for band purposes; and (b) expenses incurred to prevent or suppress grass or forest fires or to protect the property of Indians in cases of emergency.

Section 66 (1) (Expenditure of Revenue Moneys with Consent of Council) With the consent of the council of a band, the Minister may authorize and direct the expenditure of revenue moneys for any purpose that in the opinion of the Minister will promote the general progress and welfare of the band or any member of the band.

Section 66 (2) (Expenditure of Revenue Moneys without Consent of Council) The Minister may make expenditures out of the revenue moneys of the band to assist sick, disabled, aged or destitute Indians of the band, to provide for the burial of deceased indigent members of the band and to provide for the payment of contributions under the Unemployment Insurance Act on behalf of employed persons who are paid in respect of their employment out of moneys of the band. Section 66 (2.1) (Payments to Individuals out of Revenue Moneys) The Minister may make expenditures out of the revenue moneys of a band in accordance with by-laws made pursuant to paragraph 81(1)(p.3) for the purpose of making payments to any person whose name was deleted from the Band List of the band in an amount not exceeding one per capita share of the revenue moneys. Note: This provision, also enacted as part of Bill C-31, is directed at payments under a Band by-law, to persons whose names were previously deleted from the Band List, out of Band revenue moneys. Council may enact such a by-law under section 81 (1) (p.3).

Section 66 (3) (Expenditure of Revenue Moneys under Authority of Minister) The Minister may authorize the expenditure of revenue moneys of the band for all or any of the following purposes, namely, (a) for the destruction of noxious weeds and the prevention of the spreading or prevalence of insects, pests or diseases that may destroy or injure vegetation on Indian reserves; (b) to prevent, mitigate and control the spread of diseases on reserves, whether or not the diseases are infectious or communicable; (c) to provide for the inspection of premises on reserves and the destruction, alteration or renovation thereof; (d) to prevent overcrowding of premises on reserves used as dwellings; (e) to provide for sanitary conditions in private premises on reserves as well as in public places on reserves; and (f) for the construction and maintenance of boundary fences.

Section 67 (Recovery of Certain expenses from Band Moneys) Where money is expended by Her Majesty for the purpose of raising or collecting Indian moneys, the Minister may authorize the recovery of the amount so expended from the moneys of the band.

Section 68 (Maintenance of Dependents) Where the Minister is satisfied that an Indian (a) has deserted his spouse or family without sufficient cause, (b) has conducted himself in such a manner as to justify the refusal of his spouse or family to live with him, or (c) has been separated by imprisonment from his spouse and family, the Minister may order that payments of any annuity or interest money to which that Indian is entitled shall be applied to the support of the spouse or family or both the spouse and family of that Indian.

Section 69 (1) (Band Control of Revenue Moneys) The Governor in Council may by order permit a band to control, manage and expend in whole or in part its revenue moneys and may amend or revoke any such order. Note: See the Indian Band Revenue Moneys Order, SOR/90-297, as am. SOR/93-244, s. 24, and Schedule listing the Bands in respect of whom this order has been made.

Section 69 (2) (Regulations for Band Control of Revenue Moneys) The Governor in Council may make regulations to give effect to subsection (1) and may declare therein the extent to which this Act and the Financial Administration Act shall not apply to a band to which an order made under subsection (1) applies. Note: See the Indian Bands Revenue Moneys Regulations, C.R.C. 1978, c.953, as extensively amended, most recently by SOR/90-296 and SOR/93-244, Part IV.

Section 70 (1) (Loans to Indians) The Minister of Finance may authorize advances to the Minister out of the Consolidated Revenue Fund of such sums of money as the Minister may require to enable him (a) to make loans to bands, groups of Indians or individual Indians for the purchase of farm implements, machinery, livestock, motor vehicles, fishing equipment, seed grain, fencing materials, materials to be used in native handicrafts, any other equipment, and gasoline and other petroleum products, or for the making of repairs or the payment of wages, or for the clearing and breaking of land within reserves; (b) to expend or to lend money for the carrying out of cooperative projects on behalf of Indians; or (c) to provide for any other matter prescribed by the Governor in Council.

Section 70 (2) (Regulations in respect of Loans to Indians) The Governor in Council may make regulations to give effect to subsection (1).

Section 70 (3) (Public Accounting of Moneys Loaned to Indians) Expenditures that are made under subsection (1) shall be accounted for in the same manner as public moneys.

Section 70 (4) (Repayment of Moneys Loaned to Indians) The Minister shall pay to the Receiver General all moneys that he receives from bands, groups of Indians or individual Indians by way of repayments of loans made under subsection (1).

Section 70 (5) (Limitation on Amount of Loan Fund) The total amount of outstanding advances to the Minister under this section shall not at any one time exceed six million and fifty thousand dollars.

Section 70 (6) (Report to Parliament on Loan Fund) The Minister shall within fifteen days after the termination of each fiscal year or, if Parliament is not then in session, within fifteen days after the commencement of the next ensuing session, lay before Parliament a report setting out the total number and amount of loans made under subsection (1) during that year.

Section 71 (1) (Minister may Operate Farms) The Minister may operate farms on reserves and may employ such persons as he considers necessary to instruct Indians in farming and may purchase and distribute without charge pure seed to Indian farmers.

Section 71 (2) (Application of Profits from Operation of Farms) The Minister may apply any profits that result from the operation of farms pursuant to subsection (1) on reserves to extend farming operations on the reserves or to make loans to Indians to enable them to engage in farming or other agricultural operations or he may apply those profits in any way that he considers to be desirable to promote the progress and development of the Indians.

Section 72 (Payment of Moneys under Treaty) Moneys that are payable to Indians or to Indian bands under a treaty between Her Majesty and a band and for the payment of which the Government of Canada is responsible may be paid out of the Consolidated Revenue Fund. Back to Index

Regulations and Elections (ss. 73-79) Section 73 (1) (Governor in Council Regulations) The Governor in Council may make regulations (a) for the protection and preservation of fur-bearing animals, fish and other game on reserves; (b) for the destruction of noxious weeds and the prevention of the spreading or prevalence of insects, pests or diseases that may destroy or injure vegetation on Indian reserves; (c) for the control of the speed, operation and parking of vehicles on roads within reserves; (d) for the taxation, control and destruction of dogs and for the protection of sheep on reserves; (e) for the operation, supervision and control of pool rooms, dance halls and other places of amusement on reserves; (f) to prevent, mitigate and control the spread of diseases on reserves, whether or not the diseases are infectious or communicable; (g) to provide medical treatment and health services for Indians; (h) to provide compulsory hospitalization and treatment for infectious diseases among Indians; (i) to provide for the inspection of premises on reserves and the destruction,alteration or renovation thereof; (j) to prevent overcrowding of premises on reserves used as dwellings; (k) to provide for sanitary conditions in private premises on reserves as well as in public places on reserves; (l) for the construction and maintenance of boundary fences; and (m) for empowering and authorizing the council of a band to borrow money for band projects or housing purposes and providing for the making of loans out of moneys so borrowed to members of the band forhousing purposes. Note: The following regulations appear to have been enacted under this section: . Indian Reserve Traffic Regulations, C.R.C. 1978, c. 959 . Indian Reserve Waste Disposal Regulations, C.R.C. 1978, c. 960 . Indian Band Council Borrowing Regulations, C.R.C. 1978, c. 949

Section 73 (2) (Punishment for Breach of Regulations) The Governor in Council may prescribe the punishment, not exceeding a fine of one hundred dollars or imprisonment for a term not exceeding three months or both, that may be imposed on summary conviction for contravention of a regulation made under subsection (1).

Section 73 (3) (Other Orders and Regulations) The Governor in Council may make orders and regulations to carry out the purposes and provisions of this Act.

Section 74 (1) (Elected Councils) Whenever he deems it advisable for the good government of a band, the Minister may declare by order that after a day to be named therein the council of the band, consisting of a chief and councillors, shall be selected by elections to be held in accordance with this Act. Note: Acting under subsection 3, the Governor and Council has enacted the Indian Bands Council Method of Election Regulation, SOR/90-46 as am. SOR/92-366, which lists all the Bands under the elective system of this Act in the Schedules.

Section 74 (2) (Composition of Elected Councils) Unless otherwise ordered by the Minister, the council of a band in respect of which an order has been made under subsection (1) shall consist of one chief, and one councillor for every one hundred members of the band, but the number of councillors shall not be less than two nor more than twelve and no band shall have more than one chief.

Section 74 (3) (Regulations in respect of electoral majorities) The Governor in Council may, for the purposes of giving effect to subsection (1), make orders or regulations to provide (a) that the chief of a band shall be elected by (i) a majority of the votes of the electors of the band, or (ii) a majority of the votes of the elected councillors of the band from among themselves, but the chief so elected shall remain a councillor; and (b) that the councillors of a band shall be elected by (i) a majority of the votes of the electors of the band, or (ii) a majority of the votes of the electors of the band in the electoral section in which the candidate resides and that he proposesto represent on the council of the band. Note: See note at subsection (1).

Section 74 (4) (Electoral Sections) A reserve shall for voting purposes consist of one electoral section, except that where the majority of the electors of a band who were present and voted at a referendum or a special meeting held and called for the purpose in accordance with the regulations have decided that the reserve should for voting purposes be divided into electoral sections and the Minister so recommends, the Governor in Council may make orders or regulations to provide for the division of the reserve for voting purposes into not more than six electoral sections containing as nearly as may be an equal number of Indians eligible to vote and to provide for the manner in which electoral sections so established are to be distinguished or identified. Section 75 (1) (Eligibility for election as Councillor) No person other than an elector who resides in an electoral section may be nominated for the office of councillor to represent that section on the council of the band.

Section 75 (2) (Nomination of candidates) No person may be a candidate for election as chief or councillor of a band unless his nomination is moved and seconded by persons who are themselves eligible to be nominated.

Section 76 (1) (Regulations respecting Conduct of Elections) The Governor in Council may make orders and regulations with respect to band elections and, without restricting the generality of the foregoing, may make regulations with respect to (a) meetings to nominate candidates; (b) the appointment and duties of electoral officers; (c) the manner in which voting is to be carried out; (d) election appeals; and (e) the definition of residence for the purpose of determining the eligibility of voters. Note: See Indian Band Election Regulations, C.R.C. 1978, c. 952 as am. SOR/85-409.

Section 76 (2) (Secrecy of Voting) The regulations made under paragraph (1)(c) shall provide for secrecy of voting.

Section 77 (1) (Eligibility of Voters for Chief and Councillors) A member of a band who has attained the age of eighteen years and is ordinarily resident on the reserve is qualified to vote for a person nominated to be chief of the band and, where the reserve for voting purposes consists of one section, to vote for persons nominated as councillors. Note 1: See definition of "elector" in section 2 (1). Note 2: The exclusion of off reserve members from voting for Chief and Council was held to be, to the extent that these members were excluded by this subsection from participating in decisions about surrenders or designations and approval of expenditures from Band moneys, a violation of section 15 of the Canadian Charter of Rights and Freedoms: Corbiere v. The Queen, [1994] 1 F.C. 394 (T.D.). The declaration of invalidity in that case has been suspended pending appeal.

Section 77 (2) (Eligibility of Voters for Councillor representing Electoral Sections) A member of a band who is of the full age of eighteen years and is ordinarily resident in a section that has been established for voting purposes is qualified to vote for a person nominated to be councillor to represent that section.

Section 78 (1) (Tenure of Office) Subject to this section, the chief and councillors of a band hold office for two years.

Section 78 (2) (Office becomes Vacant) The office of chief or councillor of a band becomes vacant when (a) the person who holds that office (i) is convicted of an indictable offence, (ii) dies or resigns his office, or (iii) is or becomes ineligible to hold office by virtue of this Act; or (b) the Minister declares that in his opinion the person who holds that office (i) is unfit to continue in office by reason of his having been convicted of an offence, (ii) has been absent from three consecutive meetings of the council without being authorized to do so, or (iii) was guilty, in connection with an election, of corrupt practice, accepting a bribe, dishonesty or malfeasance.

Section 78 (3) (Disqualification from Nomination) The Minister may declare a person who ceases to hold office by virtue of subparagraph (2)(b)(iii) to be ineligible to be a candidate for chief or councillor of a band for a period not exceeding six years.

Section 78 (4) (Special Election to Fill Vacant Office) Where the office of chief or councillor of a band becomes vacant more than three months before the date when another election would ordinarily be held, a special election may be held in accordance with this Act to fill the vacancy.

Section 79 (Setting aside Election) The Governor in Council may set aside the election of a chief or councillor of a band on the report of the Minister that he is satisfied that (a) there was corrupt practice in connection with the election; (b) there was a contravention of this Act that might have affected the result of the election; or (c) a person nominated to be a candidate in the election was ineligible to be a candidate. Back to Index

Conduct of Band Business by Council (ss. 80-86) Section 80 (Regulations respecting Band and Council Meetings) The Governor in Council may make regulations with respect to band meetings and council meetings and, without restricting the generality of the foregoing, may make regulations with respect to (a) presiding officers at such meetings; (b) notice of such meetings; (c) the duties of any representative of the Minister at such meetings; and (d) the number of persons required at such meetings to constitute a quorum. Note: See Indian Band Council Procedure Regulations, C.R.C. 1978, c. 950. These are an embarrassment and should have been amended or repealed long ago.

Section 81 (1) (Council may make By-laws) The council of a band may make by-laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, for any or all of the following purposes, namely, (a) to provide for the health of residents on the reserve and to prevent the spreading of contagious and infectious diseases; (b) the regulation of traffic; (c) the observance of law and order; (d) the prevention of disorderly conduct and nuisances; (e) the protection against and prevention of trespass by cattle and other domestic animals, the establishment of pounds, the appointment of pound-keepers, the regulation of their duties and the provision for fees and charges for their services; (f) the construction and maintenance of watercourses, roads, bridges, ditches, fences and other local works; (g) the dividing of the reserve or a portion thereof into zones and the prohibition of the construction or maintenance of any class of buildings or the carrying on of any class of business, trade or calling in any zone; (h) the regulation of the construction, repair and use of buildings, whether owned by the band or by individual members of the band; (i) the survey and allotment of reserve lands among the members of the band and the establishment of a register of Certificates of Possession and Certificates of Occupation relating to allotments and the setting apart of reserve lands for common use, if au thority therefor has been granted under section 60; (j) the destruction and control of noxious weeds; (k) the regulation of bee-keeping and poultry raising; (l) the construction and regulation of the use of public wells, cisterns, reservoirs and other water supplies; (m) the control or prohibition of public games, sports, races, athletic contests and other amusements; (n) the regulation of the conduct and activities of hawkers, peddlers or others who enter the reserve to buy, sell or otherwise deal in wares or merchandise; (o) the preservation, protection and management of fur-bearing animals, fish and other game on the reserve; (p) the removal and punishment of persons trespassing on the reserve or frequenting the reserve for prohibited purposes; (p.1) the residence of band members and other persons on the reserve ; (p.2) to provide for the rights of spouses and children [note section 18.1] who reside with members of the band on the reserve with respect to any matter in relation to which the council may make by-laws in respect of members of the band; (p.3) to authorize the Minister to make payments out of capital or revenue moneys to persons whose names were deleted from the Band List of the band; (p.4) to bring subsection 10(3) or 64.1(2) into effect in respect of the band; (q) with respect to any matter arising out of or ancillary to the exercise of powers under this section; and (r) the imposition on summary conviction of a fine not exceeding one thousand dollars or imprisonment for a term not exceeding thirty days, or both, for violation of a by-law made under this section.

Section 81 (2) (Court Order to Prevent Continuation or Repetition of Offence) Where any by-law of a band is contravened and a conviction entered, in addition to any other remedy and to any penalty imposed by the by-law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted.

Section 81 (3) (Court's Power to Restrain Contravention of By-law) Where any by-law of a band passed is contravened, in addition to any other remedy and to any penalty imposed by the by-law, such contravention may be restrained by court action at the instance of the band council.

Section 82 (1) (Copies of By-laws to be sent to Minister) A copy of every by-law made under section 81 shall be forwarded by mail by the chief or a member of the council of the band to the Minister within four days after it is made.

Section 82 (2) (Effective date of By-law) A by-law made under section 81 comes into force forty days after a copy thereof is forwarded to the Minister pursuant to subsection (1), unless it is disallowed by the Minister within that period, but the Minister may declare the by-law to be in force at any time before the expiration of that period.

Section 83 (1) (Money By-laws) Without prejudice to the powers conferred by section 81, the council of a band may, subject to the approval of the Minister, make by-laws for any or all of the following purposes, namely, (a) subject to subsections (2) and (3), taxation for local purposes of land, or interests in land, in the reserve, including rights to occupy, possess or use land in the reserve; (a.1) the licensing of businesses, callings, trades and occupations; (b) the appropriation and expenditure of moneys of the band to defray band expenses; (c) the appointment of officials to conduct the business of the council, prescribing their duties and providing for their remuneration out of any moneys raised pursuant to paragraph (a); (d) the payment of remuneration, in such amount as may be approved by the Minister, to chiefs and councillors, out of any moneys raised pursuant to paragraph (a); (e) the enforcement of payment of amounts that are payable pursuant to this section, including arrears and interest; (e.1) the imposition and recovery of interest on amounts that are payable pursuant to this section, where those amounts are not paid before they are due, and the calculation of that interest; (f) the raising of money from band members to support band projects; and (g) with respect to any matter arising out of or ancillary to the exercise of powers under this section.

Section 83 (2) (Authorization of Expenditures) An expenditure made out of moneys raised pursuant to subsection (1) must be so made under the authority of a by-law of the council of the band.

Section 83 (3) (Tax Appeals) A by-law made under paragraph (1)(a) must provide an appeal procedure in respect of assessments made for the purposes of taxation under that paragraph.

Section 83 (4) (Minister's Approval of By-laws under this Section) The Minister may approve the whole or a part only of a by-law made under subsection (1).

Section 83 (5) (Regulations in respect of By-laws under this Section) The Governor in Council may make regulations respecting the exercise of the by-law making powers of bands under this section.

Section 83 (6) (By-laws must be Consistent with Regulations) A by-law made under this section remains in force only to the extent that it is consistent with the regulations made under subsection (5).

Section 84 (Set-off in respect of Taxes Owing) Where a tax that is imposed on an Indian by or under the authority of a by-law made under section 83 is not paid in accordance with the by-law, the Minister may pay the amount owing together with an amount equal to one-half of one per cent thereof out of moneys payable out of the funds of the band to the Indian.

Section 85 [Repealed, R.S. 1985 (4th Supp.), c. 17, s. 11]

Section 85.1 (1) (By-laws relating to Intoxicants) Subject to subsection (2), the council of a band may make by-laws (a) prohibiting the sale, barter, supply or manufacture of intoxicants on thereserve of the band; (b) prohibiting any person from being intoxicated on the reserve; (c) prohibiting any person from having intoxicants in his possession on thereserve; and (d) providing for exceptions to any of the prohibitions established pursuant to paragraph (b) or (c).

Section 85.1 (2) (Consent of electors) A by-law may not be made under this section unless it is first assentedto by a majority of theelectors of the band who voted at a special meeting of the band called bythe council of the band for the purpose of considering the by-law.

Section 85.1 (3) (Copies of Intoxicants By-laws to Minister) A copy of every by-law made under this section shall be sent by mail tothe Minister by the chief or a member of the council of the band within four days after it is made.

Section 85.1 (4) (Offences Against Intoxicant By-Laws) Every person who contravenes a by-law made under this section is guilty of an offence and liable on summary conviction (a) in the case of a by-law made under paragraph (1)(a), to a fine of not more than one thousand dollars or to imprisonment for a term not exceeding six months or to both;and (b) in the case of a by-law made under paragraph (1)(b) or (c), to a fine ofnot more than one hundred dollars or to imprisonment for a term not exceeding three months or to both. Note: The goods or chattels may also be seized under s. 103.

Section 86 (Proof of By-Law) A copy of a by-law made by the council of a band under this Act, if it is certified to be a true copy by the superintendent, is evidence that the by-law was duly made by the council and approved by the Minister, without proof of the signature or official character of the superintendent, and no such by-law is invalid by reason of any defect in form. Back to Index

Legal Rights and Immunities (ss. 87-90) Section 87 (1) (Property on Reserve Exempt from Taxation) Notwithstanding any other Act of Parliament or any Act of the legislature of a province, but subject to section 83, the following property is exempt from taxation, namely, (a) the interest of an Indian or a band in reserve lands or surrendered lands; and (b) the personal property of an Indian or a band situated on a reserve. and no Indian or band is subject to taxation in respect of the ownership, occupation, possession or use of any property mentioned in paragraph (1)(a) or (b) or is otherwise subject to taxation in respect of any such property; and no succession duty, inheritance tax or estate duty is payable on the death of any Indian in respect of any property mentioned in paragraphs (1)(a) or (b) or the succession thereto if the property passes to an Indian, nor shall any such property be taken into account in determining the duty payable under the Dominion Succession Duty Act, chapter 89 of the Revised Statutes of Canada, 1952, or the tax payable under the Estate Tax Act, chapter E-9 of the Revised Statutes of Canada, 1970, on or in respect of other property passing to an Indian. Note 1: Income earned by an Indian which is connected to the reserve and the purposes of this Act is exempt from taxation: Williams v. The Queen (1992), 90 D.L.R. (4th) 129 ( S.C.C.). See also Nowegijick v. The Queen, [1983] 1 S.C.R. 29. Note 2: See section 90 for property deemed always situated on reserve.

Section 88 (Provincial Laws of General Application apply to Indians) Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that those laws make provision for any matter for which provision is made by or under this Act. Note 1: The rule that this section speaks to provincial laws of general application comes from George v. The Queen, [1966] S.C.R. 267. See also Kruger and Manuel v. The Queen, [1978] 1 S.C.R. 104, and Dick v. The Queen, [1985] 2 S.C.R. 309 (with the caution that these aboriginal rights cases would now be decided under section 35 of the Constitution Act, 1982). For other important treaty rights cases, see R. v. Taylor and Williams (1981), 34 O.R. (2d) 360 (C.A.), Simon v. The Queen, [1985] 2 S.C.R 387, and Sioui v. The Queen, [1990] 1 S.C.R. 1025. Note 2: The better view is that this section only addresses the conduct of Indians and does not permit provincial laws to encroach upon "Lands reserved for the Indians": Derrickson v. Derrickson, [1986] 1 S.C.R. 285.

Section 89 (1) (Restriction on Mortgage, Seizure, etc. of Property on Reserve) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band. Note 1: See also section 29. Note 2: For a discussion of the purposes and scope of this immunity, see Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85. Note 3: See section 90 for property deemed always situated on reserve.

Section 89 (1.1) (Exception in respect of Leaseholds in Designated Lands) Notwithstanding subsection (1), a leasehold interest in designated lands is subject to charge, pledge, mortgage, attachment, levy, seizure, distress and execution.

Seciton 89 (2) (Exception in respect of Conditional Sales) A person who sells to a band or a member of a band a chattel under an agreement whereby the right of property or right of possession thereto remains wholly or in part in the seller may exercise his rights under the agreement notwithstanding that the chattel is situated ona reserve.

Section 90 (1) (Certain Property Deemed Always Situated on Reserve) For the purposes of sections 87 and 89, personal property that was (a) purchased by Her Majesty with Indian moneys or moneys appropriated by Parliament for the use and benefit of Indians or bands, or (b) given to Indians or to a band under a treaty or agreement between a band and Her Majesty, shall be deemed always to be situated on a reserve.

Section 90 (2) (Restriction on Transfer of Property Deemed Situated on Reserve) Every transaction purporting to pass title to any property that is by this section deemed to be situated on a reserve, or any interest in such property, is void unless the transaction is entered into with the consent of the Minister or is entered into between members of a band or between the band and a member thereof.

Secton 90 (3) (Offences under this Section) Every person who enters into any transaction that is void by virtue of subsection (2) is guilty of an offence, and every person who, without the written consent of the Minister, destroys personal property that is by this section deemed to be situated on a reserve is guilty of an offence. Note: The goods or chattels may also be seized under s. 103. Back to Index

Offences and Enforcement (ss. 91-108) Note: Other offences and penalties are provided for elsewhere in the Act, notably S. 30:.....Trespass on Reserves S. 33......Sale or Barter of Produce from Reserves (Man., Sask., Alta.) S. 73......Contravention of Regulations S. 81......Contravention of Band By-Laws S. 85.1....Contravention of Intoxicants By-Law S. 90......Offences in relation to Property Deemed Situated on Reserve S. 119.....Failure to Cause Child to Attend School

Section 91 (1) (Certain Property on a Reserve May Not be Acquired) No person may, without the written consent of the Minister, acquire title to any of the following property situated on a reserve, namely, (a) an Indian grave house; (b) a carved grave pole; (c) a totem pole; (d) a carved house post; or (e) a rock embellished with paintings or carvings.

Section 91 (2) (No Offence if Articles Manufactured for Sale) Subsection (1) does not apply to chattels referred to therein that are manufactured for sale by Indians.

Section 91 (3) (Offences under this Section) No person shall remove, take away, mutilate, disfigure, deface or destroy any chattel referred to in subsection (1) without the written consent of the Minister.

Section 91 (4) (Penalty for offences under this section) A person who contravenes this section is guilty of an offence and liable on summary conviction to a fine not exceeding two hundred dollars or to imprisonment for a term not exceeding three months.

Section 92 (1) (Restriction on Trading by Departmental Employees and Others) No person who is (a) an officer or employee in the Department, (b) a missionary engaged in mission work among Indians, or (c) a school teacher on a reserve, shall, without a licence from the Minister or his duly authorized representative, trade for profit with an Indian or sell to him directly or indirectly goods or chattels, but no such licence shall be issued to a full-time officer or employee in the Department.

Section 92 (2) (Cancellation of Licence to Trade for Profit) The Minister or his duly authorized representative may at any time cancel a licence issued under this section.

Section 92 (3) (Offences and Penalties under this Section) A person who contravenes subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding five hundred dollars.

Section 92 (4) (Departmental Employees may be Dismissed) Without prejudice to subsection (3), an officer or employee in the Department who contravenes subsection (1) may be dismissed from office.

Section 93 (Removal of Materials from Reserve an Offence) A person who, without the written permission of the Minister or his duly authorized representative, (a) removes or permits anyone to remove from a reserve (i) minerals, stone, sand, gravel, clay or soil, or (ii) trees, saplings, shrubs, underbrush, timber, cordwood or hay, or (b) has in his possession anything removed from a reserve contrary to this section, is guilty of an offence and liable on summary conviction to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding three months or to both. Note: The goods or chattels may also be seized under s. 103.

Sections 94 to 100 [Repealed, R.S., 1985, c. 32 (1st Supp.), s. 17] Note: These sections created offences in relation to intoxicants, but became largely unenforceable after the decision of the Supreme Court of Canada in R. v. Drybones, [1970] S.C.R. 282, and R. v. Hayden (1983), 3 D.L.R. (4th) 361 (Man. C.A.). Intoxicants may now be regulated by Band By-Law pursuant to section 85.1.

Section 101 (Certificate of Analysis is Evidence) In every prosecution under this Act a certificate of analysis furnished by an analyst employed by the Government of Canada or by a province shall be accepted as evidence of the facts stated therein and of the authority of the person giving or issuing the certificate, without proof of the signature of the person appearing to have signed the certificate or his official character, and without further proof thereof.

Section 102 (Penalty where None Specified Elsewhere in Act) Every person who is guilty of an offence against any provision of this Act or any regulation made by the Governor in Council or the Minister for which a penalty is not provided elsewhere in this Act or the regulations is liable on summary conviction to a fine not exceeding two hundred dollars or to imprisonment for a term not exceeding three months or to both.

Section 103 (1) (Seizure of Goods in Relation to Specified Offences) Whenever a peace officer, a superintendent or a person authorized by the Minister believes on reasonable grounds that an offence against section 33, 85.1, 90 or 93 has been committed, he may seize all goods and chattels by means of or in relation to which he believes on reasonable grounds the offence was committed.

Section 103 (2) (Detention of Goods Seized under this Section) All goods and chattels seized pursuant to subsection (1) may be detained for a period of three months following the day of seizure unless during that period proceedings are undertaken under this Act in respect of the offence, in which case the goods and chattels may be further detained until the proceedings are finally concluded.

Section 103 (3) (Goods may be Forfeit on Conviction) Where a person is convicted of an offence against the sections mentioned in subsection (1), the convicting court or judge may order that the goods and chattels by means of or in relation to which the offence was committed, in addition to any penalty imposed, are forfeited to Her Majesty and may be disposed of as the Minister directs.

Section 103 (4) (Authorization of Search Warrant) A justice who is satisfied by information on oath that there is reasonable ground to believe that there are in a reserve or in any building, receptacle or place any goods or chattels by means of or in relation to which an offence against any of the sections mentioned in subsection (1) has been, is being or is about to be committed may at any time issue a warrant under his hand authorizing a person named therein or a peace officer at any time to search the reserve, building, receptacle or place for any of those goods or chattels.

Section 104 (1) (Fines Held for Benefit of Band) Subject to subsection (2), every fine, penalty or forfeiture imposed under this Act belongs to Her Majesty for the benefit of the band, or of one or more members of the band, with respect to which the offence was committed or to which the offender, if an Indian, belongs.

Section 104 (2) (Fines may be Paid Over for Administration of Justice, etc.) The Governor in Council may from time to time direct that a fine, penalty or forfeiture described in subsection (1) shall be paid to a provincial, municipal or local authority that bears in whole or in part the expense of administering the law under which the fine, penalty or forfeiture is imposed, or that the fine, penalty or forfeiture shall be applied in the manner that he considers will best promote the purposes of the law under which the fine, penalty or forfeiture is imposed, or the administration of that law. Note: See Disposal of Forfeited Goods and Chattels Regulations, C.R.C. 1978, c. 948.

Section 105 (Sufficiency of Description of Indians in Writs, etc.) In any order, writ, warrant, summons or proceeding issued under this Act it is sufficient if the name of the Indian or other person referred to therein is the name given to, or the name by which the Indian or other person is known by, the person who issues the order, writ, warrant, summons or proceeding, and if no part of the name of the person is given to or known by the person issuing the order, writ, warrant, summons or proceeding, it is sufficient if the Indian or other person is described in any manner by which he may be identified.

Section 106 (Jurisdiction of Magistrates) A police magistrate or a stipendiary magistrate has, with respect to matters arising under this Act, jurisdiction over the whole county, union of counties or judicial district in which the city, town or other place for which he is appointed or in which he has jurisdiction under provincial laws is situated.

Section 107 (Appointment of Justices of the Peace) The Governor in Council may appoint persons to be, for the purposes of this Act, justices of the peace and those persons have the powers and authority of two justices of the peace with regard to (a) any offence under this Act; and (b) any offence under the Criminal Code relating to cruelty to animals, common assault, breaking and entering and vagrancy, where the offence is committed by an Indian or relates to the person or property of an Indian.

Section 108 (Commissioners for the Taking of Oaths) For the purposes of this Act or any matter relating to Indian affairs (a) persons appointed by the Minister for the purpose, (b) superintendents, and (c) the Minister, Deputy Minister and the chief officer in charge of the branch of the Department relating to Indian affairs, are commissioners for the taking of oaths. Back to Index

Indian Education (ss. 109-122) Sections 109-113 [Repealed, R.S., 1985, c. 32 (1st Supp.), s. 20] Note: These sections dealt with enfranchisement, a term used to describe the loss of Indian status and Band membership through the operation of the Act or, as in these repealed sections, voluntary. "Enfranchisement" literally means "gaining the vote" and harks back to the time before 1960 when Indians were, by virtue of their status, denied the vote in federal or provincial elections. It seems ironically appropriate to include this note in the Education section since, well into this century, Indians who obtained college degrees, or were admitted to a profession, or became clergymen, were automatically enfranchised under the Act.

Section 114 (1) (School Agreements with Provinces, etc.) The Governor in Council may authorize the Minister, in accordance with this Act, to enter into agreements on behalf of Her Majesty for the education in accordance with this Act of Indian children, with (a) the government of a province; (b) the Commissioner of the Yukon Territory; (c) the Commissioner of the Northwest Territories; (d) a public or separate school board; and (e) a religious or charitable organization.

Section 114 (2) (Minister may Establish and Operate Schools) The Minister may, in accordance with this Act, establish, operate and maintain schools for Indian children. Note: While the wording of this section is permissive, there is an obligation pursuant to Treaties 1, 2, 3, 4, 5, and 6 "to maintain schools" in those reserves where the Bands desire them. In Treaty 7, the obligation is to provide and pay for teachers to instruct Indian children once they are settled on reserves. In Treaty 8, the obligation is to provide and pay for teachers as Her Majesty's Government of Canada considers "advisable". In Treaty 9, the obligation is to pay for teachers and provide school buildings and educational equipment as government "as may seem advisable" to government. In Treaty 10, provision will be made as "deemed advisable" by government "for the education of Indian children".

Section 115 (Powers of Minister in respect of Indian Education) The Minister may (a) provide for and make regulations with respect to standards for buildings, equipment, teaching, education, inspection and discipline in connection with schools; (b) provide for the transportation of children to and from school; (c) enter into agreements with religious organizations for the support and maintenance of children who are being educated in schools operated by those organizations; and (d) apply the whole or any part of moneys that would otherwise be payable to or on behalf of a child who is attending a residential school to the maintenance of that child at that school.

Section 116 (1) (School Attendance Required) Subject to section 117, every Indian child who has attained the age of seven years shall attend school.

Section 116 (2) (Minister may Vary School Attendance Requirement) The Minister may (a) require an Indian who has attained the age of six years to attend school; (b) require an Indian who becomes sixteen years of age during the school term to continue to attend school until the end of that term; and (c) require an Indian who becomes sixteen years of age to attend school for such further period as the Minister considers advisable, but no Indian shall be required to attend school after he becomes eighteen years of age.

Section 117 (School Attendance Not Required) An Indian child is not required to attend school if the child (a) is, by reason of sickness or other unavoidable cause that is reported promptly to the principal, unable to attend school; (b) is, with the permission in writing of the superintendent, absent from school for a period not exceeding six weeks in each term for the purpose of assisting in husbandry or urgent and necessary household duties; (c) is under efficient instruction at home or elsewhere, within one year after the written approval by the Minister of such instruction; or (d) is unable to attend school because there is insufficient accommodation in the school that the child is entitled or directed to attend.

Section 118 (Minister may Designate School to be Attended) Every Indian child who is required to attend school shall attend such school as the Minister may designate, but no child whose parent is a Protestant shall be assigned to a school conducted under Roman Catholic auspices and no child whose parent is a Roman Catholic shall be assigned to a school conducted under Protestant auspices, except by written direction of the parent.

Section 119 (1) (Truant Officers) The Minister may appoint persons, to be called truant officers, to enforce the attendance of Indian children at school, and for that purpose a truant officer has the powers of a peace officer.

Section 119 (2) (Powers of Truant Officer) Without restricting the generality of subsection (1), a truant officer may, subject to subsection (2.1), (a) enter any place where he believes, on reasonable grounds, that there are Indian children who are between the ages of seven and sixteen years, or who are required by the Minister to attend school; (b) investigate any case of truancy; and (c) serve written notice on the parent, guardian or other person having the care or legal custody of a child to cause the child to attend school regularly thereafter.

Section 119 (2.1) (Warrant Required for Truant Officer to Enter Dwelling House) Where any place referred to in paragraph (2)(a) is a dwelling-house, a truant officer may not enter that dwelling-house without the consent of the occupant except under the authority of a warrant issued under subsection (2.2).

Section 119 (2.2) (Authorization of Search Warrants for Truant Officers) Where on ex parte application a justice of the peace is satisfied by information on oath (a) that the conditions for entry described in paragraph (2)(a) exist in relation to a dwelling-house, (b) that entry to the dwelling-house is necessary for any purpose relating to the administration or enforcement of this Act, and (c) that entry to the dwelling-house has been refused or that there are reasonable grounds for believing that entry thereto will be refused, the justice of the peace may issue a warrant under his hand authorizing the truant officer named therein to enter that dwelling-house subject to such conditions as may be specified in the warrant.

Section 119 (2.3) (Use of Force by Truant Officer Executing Search Warrant) In executing a warrant issued under subsection (2.2), the truant officer named therein shall not use force unless he is accompanied by a peace officer and the use of force has been specifically authorized in the warrant.

Section 119 (3) (Offence of Failing to Attend School Regularly after Notice Served ) Where a notice has been served in accordance with paragraph (2)(c) with respect to a child who is required by this Act to attend school and the child does not within three days after the service of notice attend school and continue to attend school regularly thereafter, the person on whom the notice was served is guilty of an offence and liable on summary conviction to a fine not exceeding five dollars or to imprisonment for a term not exceeding ten days or to both.

Section 119 (4) (Further Notice not Required to Make out Offence) Where a person has been served with a notice in accordance with paragraph (2)(c), it is not necessary within a period of twelve months thereafter to serve that person with any other notice in respect of further non-compliance with this Act, and whenever that person within the period of twelve months fails to cause the child with respect to whom the notice was served or any other child of whom he has charge or control to attend school and continue in regular attendance as required by this Act, that person is guilty of an offence and liable to the punishment imposed by subsection (3) as if he had been served with the notice.

Section 119 (5) (Habitual Tardiness Deemed Absence from School) A child who is habitually late for school shall be deemed to be absent from school.

Section 119 (6) (Truant Officer may take Child into Custody) A truant officer may take into custody a child whom he believes on reasonable grounds to be absent from school contrary to this Act and may convey the child to school, using as much force as the circumstances require.

Section 120 (1) (Denomination of Teacher) Where the majority of the members of a band belong to one religious denomination, the school established on the reserve that has been set apart for the use and benefit of that band shall be taught by a teacher of that denomination.

Section 120 (2) (Band may Designate Denomination of Teacher) Where the majority of the members of a band are not members of the same religious denomination and the band by a majority vote of those electors of the band who were present at a meeting called for the purpose requests that day schools on the reserve should be taught by a teacher belonging to a particular religious denomination, the school on that reserve shall be taught by a teacher of that denomination.

Section 121 (Minority Religious Denominations) A Protestant or Roman Catholic minority of any band may, with the approval of and under regulations to be made by the Minister, have a separate day school or day school classroom established on the reserve unless, in the opinion of the Governor in Council, the number of children of school age does not so warrant.