is section 88 merely declaratory or does it...
TRANSCRIPT
THE APPLICATION OF PROVINCIAL LAWS TO STATUS INDIANS
UNDER SECTION 88 OF THE INDIAN ACT
PRELIMINARY 0 0 • 0 • • • • • • • • • • • • • • • • • • • • • • • • • • • • 1
THE POSITION OF A STATUS INDIAN IN THE ABSENCE OF SEC. 88 ...•....• 1
IN SECTION 88, WHAT DO THE WORDS "LAWS OF GENERAL APPLICATION"E~RACE? ..•••••. 0 ••• e ••••••••••••• 0 ••••• 0 ••••••••••• 0 •••••••• 0 • 2
WHAT IS THE GENERAL EFFECT OF SECTION 88? ..............•.......... 2
WHAT IS A PROVINCIAL "LAW OF GENERAL APPLICATION"? 3
IS SECTION 88 MERELY DECLARATORY OR DOES IT AMOUNT TOREFERENTIAL INCORPORATION? ................••....•.............. 4
THE CONSEQUENCES OF REFERENTIAL INCORPORATION 8
DO PROVINCIAL LAWS OF GENERAL APPLICATION APPLY TO INDIANRESERVE LANDS? .........•....•.••......•........••.............• 9
FOOTNOTES .•.•••.••.•••.•.••.•.•••..•••...•..••...•.•...••...•..•.. 18
DI CK V. R. AND ATTORNEY GENERAL OF CANADA AND ATTORNEY GENERALOF NOVA SCOTIA 20
THE .INDIA.l\l ACT .•..............•........• 0 •••••••••••••••• 0 • • • • • • •• 41
PRELIMINARY
The paper deals with the application of provincial laws to Indians
and Indian reserve lands under sec. 88 of the Indian Act, 1970 R.S.C., c.
C.I-6. It reads
Subject to the terms of any treaty and any other Act of theParliament of Canada, all laws of general application from timeto time in force in any province are applicable to and inrespect of Indians in the province, except to the extent thatsuch laws are inconsistent with this Act or any order, rule,regulation or by-law made thereunder, and except to the extentthat such laws make provlslon for any matter for which provisionis made by or under this Act.
Let us define our terms. By referring to "Indians" the section means
persons registered as such (or entitled to be) under other provisions of
the Act. There are many other residents of Saskatchewan who are of
aboriginal ancestry--Metis and Non-Status Indians--but to whom sec. 88 has
no application. In this paper the person to whom the section does apply
will be called a "status Indian."
THE POSITION OF A STATUS INDIAN IN THE ABSENCE OF SEC. 88
The section is of comparatively recent origin. It was first enacted
in 1951.
prior to
his basic
To what extent did provincial laws govern the status Indian
that year? He was a resident of the province. That being so,
position was that provincial legislation applied to him. 1 Let
us remember, however, that the status Indian (at least) occupies a special
constitutional position under section 91(24) of The Constitution Act,
1867. Parliament, not a provincial Legislature, has exclusive law-making
power with respect to Indians and lands reserved for the Indians.
Accordingly, prior to section 88, a situation could arise where a
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particular provincial statute would be unconstitutional with respect to a
status Indian under the doctrine of paramountcy.2 That is, a provincial
Act which was "in relation to Indians, or which singled them out for
3special treatment or which discriminated against them in some way.
IN SECfION 88, VDAT DO THE VORDS "LAVS OF GENERAL APPLICATION" EMBRACE?
The Supreme Court has answered the question. It refers to provincial
legislation only.4 Federal laws apply of their own force thanks to
sec. 91(24) of The Constitution Act, 1867.
VDAT IS THE GENERAL EFFECf OF SECfION 88?
In particular, what is the effect in law of the words
• all laws of general application from time to time in forcein any province are applicable to and in respect of Indians inthe province • • . ?
Until very recently the weight of judicial opinion was that this
provision was merely declaratory. That is, it did not more than "declare"
what would be the position in law in the absence of--and what it was prior
to--the enactment of sec. 88. 5
On that view of the effect of the section one might initially wonder
whether it is mere surplusage. A reading of the whole section shows that
is not so. That is, a "law of general application" which otherwise would
apply to a status Indian will not do so if it runs counter to
(i) The terms of any treaty on which the Indian can rely,6 or
(ii) If it conflicts with any other Act of the Parliament ofCanada, or
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(iii) If it is inconsistent with any other part of The IndianAct or any order, rule, regulation or by-law madethereunder; or
(iv) If the provincial Act makes provision for any matter forwhich provision is made by or under The Indian Act.
Ve will return to the question whether the basic thrust of sec. 88 is
merely declaratory or not in short order. Before doing so let us pause
and consider what is meant by the phrase
• • • laws of general application . . •
VBAT IS A PROVINCIAL "LAV OF GENERAL APPLICATION"?
The answer was given by the Supreme Court of Canada in Kruger and
Manuel v. The Queen. The issue there was whether The Vildlife Act of
British Columbia applied to two status Indians who killed four deer during
the closed season while hunting on the traditional lands of their Band.
In dealing with our question, Dickson J. (as he then was) said,
There are two indicia by which to discern whether or not aprovincial enactment is a law of general application. It isnecessary to look first to the territorial reach of the Act. Ifthe Act does not extend uniformly throughout the territory, theinquiry is at an end, and the question is answered in thenegative. If the -law does extend uniformly throughout thejurisdiction, the intention and effects of the enactment need tobe considered. The law must not be "in relation to" one classof citizens in object and purpose. But the fact that a law mayhave graver consequences to one person than to another does not,on that account alone, make the law other than one of generalapplication. There are few laws which have a uniform impact.The line is crossed, however, when an enactment, though inrelation to another matter, by its effect impairs the status orcapacity of a particular group. The analogy may be made to alaw which in its effect paralyzes the status and capacities of afederal company • . . •
Apply these criteria to the case at bar. There is no doubtthat the Vildlife Act has a uniform territorial operation~
Similarly, it is clear that in object and purpose the Act is notaimed at Indians. • • •
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Game conservation laws have as their policy the maintenanceof wildlife resources. It might be argued that without someconservation measures the ability of Indians or others to huntfor food would become a moot issue in consequence of thedestruction of the resource. The presumption is for validity ofa legislative enactment and in this case the presumption has tomean that in the absence of evidence to the contrary themeasures taken by the British Columbia Legislature were taken tomaintain an effective resource in the Province for its citizensand not to oppose the interests of conservationists and Indiansin such a way as to favour the claims of the former. If, ofcourse, it can be shown in future litigation that the Provincehas acted in such a way as to oppose conservation and Indianclaims to the detriment of the latter--to "preserve moose beforeIndians" in the 'words of Gordon J.A. in R. ex reI Clinton v.Strongquill .--it might very well be concluded that theeffect of the legislation is to cross the line demarking laws ofgeneral application from other enactments. It would have to beshown that the policy of such an Act was to impair the statusand capacities of Indians. Were that s9' s. 88 would notoperate to make the Act applicable to Indians.
IS SECTION· 88 MERELY DECLARATORY OR DOES IT AMOUNT TO REFERENTIAL
INCORPORATION?
Now we come to it. In doing so let us think back to Kruger for a
moment. Suppose there had been additional evidence leading the court to
conclude that the provincial Act was "in relation to" Indians in object or
purpose--or that its effect was such as to strike at their "Indianness."
If the section is merely declaratory, then what would the result of the
case have been? On our assumption, the Act would have been beyond the
powers of the Legislature. Insofar as the accused were concerned, it
would have been an unconstitutional intrusion into the exclusive powers of
Parliament under sec. 91(24). Is it not fair to conclude that in such
case the Court would have "read the statute down" and acquitted?
In 1985 precisely that kind of case came before the Supreme Court in
Dick v. R. A copy of the judgment is attached to this paper as "Appendix
"A", Beetz J., speaking for the court, held that section 88 involved
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referential incorporation by Parliament of provincial laws of general
application.
Before considering the judgment at some little length, let us refresh
our memories in general about the doctrine of "referential incorporation."
Ve will recall that neither Parliament nor a Legislature may abdicate
its law-making powers.
exercise of such powers.
Either institution can, however, delegate the
Hence the whole field of Administrative Law.
Further, the law permits either Parliament or a Legislature, in enacting a
statue which is within its constitutional powers, to adopt, for the
purposes of that statute, the laws of the other institution.
Vhile it has nothing to do with the field of Native Law, the federal
Motor Vehicle Transport ActS is a clear example of referential
incorporation. The basic purpose of that statute is to provide for the
licensing of interprovincial and international trucking operations. They
are under the exclusive jurisdiction of Parliamen't. 9 The Act is brief and
simple. It provides for regulation of the above types of motor vehicle
transport by (i) delegating the power to license them to provincial boards
and (ii) empowering each board to do so
•• upon the like terms and conditions and in the like manneras if the extra-provincial undertaking . were a localundertaking.
That is, federal undertakings are to be licensed in accordance with the
requirements of provincial laws. For the purposes of its statute,
Parliament has adopted provincial laws as its own. In the absence of the
Act those laws would be constitutionally inapplicable to extra-provincial
k ' . 10truc lng operatlons.
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In Dick the Supreme Court concluded that, in enacting sec. 88,
Parliament has adopted the same technique. In a phrase--"thanks to the
section, provincial laws are transformed into federal laws."
Yhat is the result of that position? Let us first state an answer
and then examine the judgment to see if the statement is correct. It is
suggested the result is twofold. Namely:
1. Any provincial statute which does affect status Indians "intheir Indianness" will now, since Dick, apply to them. Ifsuch an act had not been referentraIly incorporated, itcould not constitutionally reach the status Indian. In sucha case, it would be "read down" so as to reach that result.That is no longer so.
2. However, referential incorporation does not give aLegislature carte blanche. If a provincial statute goes sofar as to single out Indians for special treatment ordiscriminate against them, as Indians, in any way, then theAct is not applicable. Only Parliament, in its ownlegislation enacted pursuant to sec. 91(24) can go that far.To permit a Legislature to take such a step would amount toParliament abdicating its own exclusive law-making power infavour of the Provincial Legislatures. It would be anattempt to amend the constitutional division of powers.
Are those conclusions based on a correct analysis of the judgment of
Beetz J., who spoke for his Court? Let us turn to that.
He considered, at length, the dissenting judgment of Lambert J.A. in
the B.C. Court of Appeal. That learned judge had reviewed the extensive
evidence lead at trial having to do with the traditions and customs of the
Indian Band to which the accused belonged. Having done so Lambert J.
concluded,
In my 0p1n10n, it is impossible to read the evidence withoutrealizing that killing fish and animals for food and other usesgives shape and meaning to the lives of the members of theAlkali Lake Band. It is at the centre of what they do and whatthey are . .
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Indeed, I would add that if the facts in this case do notplace the killing of deer within the central core of Indianness
or within the boundary that outlines the status andcapacities of the Alkali Lake Band, then it is difficult toimagine other facts that would do so.
For the purpose of his judgment, Beetz J. assumed that Lambert J.A
was right--that the Vildlife Act struck at the core of Indianness insofar
as the accused was concerned. Let us pause at this point. Absent sec. 88
(or if it was merely declaratory) the result would then have been that the
Act would be "read down" and the accused acquitted.
But the judgment did not stop there. Beetz J. went on to interpret
sec. 88 as involving referential incorporation. That lead to the
conviction being upheld. Vhy did referential incorporation change its
result? The answer lies in his interpretation, and application, of the
j~dgment of his Court in Kruger, dealing with the meaning of the phrase
"laws of general application." The relevant portions of the judgment in
Kruger are quoted on an earlier page of this paper. In analyzing them
Beetz J. in Dick said
(I)t seems to me that ... what Dickson J .... referredto . when he mentioned laws which had crossed the line ofgeneral application were laws which, either overtly orcolourably, single out Indians for special treatment and impairtheir status as Indians. Effect and intent are both relevant.Effect can evidence intent. But in order to determine whether alaw is not one of general application, the intent, purpose, orpolicy cannot be ignored: they form an essential ingredient ofa law which discriminates between various classes of persons, asopposed to a law of general application. . • •
I am further confirmed in this view by one of the exampleschosen by Dickson J. to illustrate, with an analogy, when a lawis not one of general application .• (H)e mentioned the caseof ,Great Vest Saddlery v. The King ... where (provincial)statutory provisions were held ultra vires . as theyparalyzed the status and capacities of federal companies.They were clearly not laws of general application.
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Against that background he then turned to consider The Vildlife Act.
Is it a law of general application or not? Here is his answer
Vhile it is assumed that the Vildlife Act impairs the status orcapacities of the appellant y it has not been established thatthe legislative policy of the Vildlife Act singles out Indiansfor special treatment or discriminates against them in any way.
IgeneralAct.
accordinglyapplication
concludewithin
that the Vildlife Act is a law ofthe meaning of s. 88 of the Indian
That being so, since the statute is referentially incorporated, there is
no "reading down." The Act, now with a "federal flavour," applies with
full force. If we look back at the conclusions asserted on an earlier
page as to the effect of Dick, perhaps we now agree with them.
THE CONSEQUENCES OF REFERENTIAL INCORPORATION
Following Dick, the door has been firmly opened for a wider
application of provincial laws to status Indians than, arguably y was the
case prior to the decision. One example could involve The Marriage Act.!!
It is not inconceivable that some status Indians in the province may still
follow their own traditional practices relating to marriage and ignore the
requirements of the legislation. Vould such a union be valid in law?12
That issue could arise in the course of later proceedings under The
Ma trimonial 13Property Act. In such a case it would probably not be
difficult to lead evidence establishing that the formal requirements of
The Marriage Act affected the "Indianness" of the couple, in striking at
their culture. That being so, then absent referential incorporation the
Act would be read down. The marriage would be valid. Under Dick that
result could only be achieved if it could be shown that The Marriage Act
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was not a "law of general application." That, it is suggested, would be
impossible. Surely it could not be said that the statute involved a
legislative policy which "singles out Indians for special treatment or
discriminates against them." It only goes so far as to "impair the status
or capacities" of the -Indian couple. It remains a law of general
application. Ergo, it cannot be "read down." The marriage would be void.
14Neither party could invoke The Matrimonial Property Act.
Dick also opens the door for future provincial legislation which,
while in particular cases might "impair the status or capacities" of
status Indians, would be valid. Sec. 88 incorporates "all laws of general
application from time to time in force."
Beetz J. dealt with this point. He said
It looks to the future.
(The) appell~nt argues that a prospective incorporationinto the Indian Act of future provincial laws which wouldregulate the appellant qua Indian, involves- interdelegation ofpowers (and would be unconstitutional). . . . In my opinionAttorney General for Ontario v. Scott •.. and Coughlin v.Ontario Highway Transport Board . • • provide a complete answerto this objection.
The Legislative hand of the Province is strengthened.
We will return later to examine actual, and not hypothetical, cases
in which it has been held that, under sec. 88, certain provincial laws
apply to status Indians. Before doing so, however, let us get away for a
moment from status Indians as persons and consider another question.
DO PROVINCIAL LAYS OF GENERAL APPLICATION APPLY TO INDIAN RESERVE LANDS?
On a literal interpretation of sec. 88, the answer is "no." The
reason is that the section says
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all laws of general application from time to time inforce in any province are applicable to and in respect ofIndians in the province.
It does not go on to say "and Indian reserves.
This position was first affirmed by the British Columbia Court of
Appeal in Corporation of Surrey v. Peace Arch Enterprises. 15 The issue
was whether municipal zoning regulations and the requirements of the
provincial Health Act applied to construction activities on an Indian
reserve. The court held
(T)hat the exclusive legislative jurisdiction over the land inquestion remains in the Parliament of Canada and that provinciallegislation (including municipal by laws) which lays down rulesas to how these lands shall be used, is inapplicable.
The judgment did not mention sec. 88. It probably did not need to,
for the reason set out above.
R. v. Sinclair16 followed Peace Arch in holding that the Manitoba
Fire Prevention Act did not apply to an Indian reserve.
But what about provincial legislation which relates to land but
applies, not to the land itself, but to the activities of those using the
land? If it is a law of general application, it will apply. It affects
the "users" as persons (Indian or not), not the reserve land itself.
That distinction was affirmed by the British Columbia Supreme Court
in Regina v. Duncan Supermarket Ltd. 17 The case involved a retail
business being operated on an Indian reserve. The question was whether
provincial legislation requiring businesses to close on certain holidays
was applicable. MacKenzie J. found that the Act was one of general
application.
The nubHoliday
He then went on to say
of the question is whether the applicable parts of theShopping Regulations Act are directed to the use of the
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land as contras!Bd to being directed to the activities of theuser of the land.
He held that the latter was the proper interpretation. The Act
applied.
Could· the Residential Tenancies Act of' Saskatchewan be made
applicable to premises on an Indian reserve?19 The. cases are divided.
In Millbrook Indian Band v. Northern Counties Residential Tenancies
Board20 the Nova Scotia Supreme Court held that such legislation deals wit
the relationship of landlord and tenant and that it is a proprietary
interest in land. That being so, it could not apply.
The British Columbia Court of Appeal took a contrary position in Park
Mobile Homes and Le Greeley. 21 It held that a provision in the
legislation of that province restricting the common law right of a
landlord to increase rent did not affect the use of land. The Act
applied.
This is an appropriate point at which to consider the applicability
of matrimonial property legislation to status Indian couples residing on
Indian Reserves •.
The Indian Act permits an Indian to acquire significant individual
proprietary rights in a parcel of reserve lands. The following are the
relevant sections.
20(1) No Indian is lawfully in possession of land in a reserveunless, with the approval of the Minister, possession of theland has been allotted to him by the council of the band.
(2) The Minister may issue to an Indian whopossession of land in a reserve a certificate,Certificate of Possession, as evidence ofpossession of the land described therein.
is lawfully into be called ahis right to
21 There shall be kept in the Department a Register, to be knownas the Reserve Land Register, in which shall be entered
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particulars relating to Certificates of Possession • • . andother transactions respecting lands in a reserve.
Under other sections of the Act, the holder of a Certificate of
Possession can sell and transfer his rights in the land to another member
of his band, or to the band itself. Further, the Act provides for the
inheritability of the land. In one case the rights of the holder were
Greyeyes v.
described as tantamount to a fee simple--with certain limitations.
One Saskatchewan case has dealt with the applicability of the
~M~a~t~r~i~m~on~ia~I~_p~r~o~p~e~r~t~y~~A~c~t22 to Certificate of Possession lands. It is
23Greyeyes. It involved an application for distribution of
matrimonial property. The respondent husband held a Certificate of
Possession covering 480 acres of reserve land. The Act defines
"matrimonial property" as
any real or personal property whatsoever, regardless ofits source, kind or nature, that, at the time an application ismade, is owned, or in which an interest is held, by one or bothspouses. . . •
In dealing with the plot of reserve land Gerein J. said
.• (Y)hile I consider the land to be matrimonial property, Iam unable to deal with it directly. Lands reserved for Indiansare exclusively within the jurisdiction of the Parliament ofCanada, and it is beyond my jurisdiction to order a division orsale of such land . • • .
However,respondent in"interest" hasthe applicantthat value.
as stated, I still consider the "interest" of thethe land to be matrimonial property.... This
a real value, however difficult to ascertain, andis entitled to be compensated for her share of
In 1986 the Supreme Court of Canada took the same position.
D . k D' k 24. I d h .. 1 1 . 1 .errlC son v. errlC son lnvo ve t e matrlmonla property egls atlon
of British Columbia. The Indian wife sought a declaration, under the Act,
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that she was entitled to a one-half interest in certain reserve lands held
by her Indian husband under Certificate of Possession. Alternatively, she
sought an order for compensation which would reflect one-half of the value
of those lands. Chouinard J., speaking for his court, said
The rightmanifestlylegislative1867. Itthe right of
to possession of lands on an Indian reserve isof the very essence of the federal exclusivepower under sec. 91(24) of The Constitution Act,follows that provincial legislation cannot apply topossession of Indian reserve lands •.
It follows that the provisi6n~ of The Family Relations Actdealing with the right of ownership and possession of immovableproperty cannot apply to lands on an Indian reserve.
Accordingly, he dismissed the plaintiff's claim for a declaration
that she was entitled to a one-half interest in the lands.
In dealing with the alternative claim the learned judge took the same
approach as Greyeyes. He agreed with the following statement in the
judgment of' the British Columbia Court of Appeal,
If the court is unable to award' the wife an interest in theIndian reserve lands then the court may make an order forcompensation for the purpose of adjusting the division of familyassets between the spouses.
The Derrickson case is of interest on another point. It was strongly
submitted in argument that, properly interpreted, sec. 88 made provincial
laws applicable to reserve lands. Chouinard by no means dismissed the
argument. In dealing with it he took the position that, even if sec. 88
referentially incorporated provincial land laws of general application,
the particular Act before him was inconsistent with the provisions of the
Indian Act dealing with Certificates of Possession. It will be recalled
that this is one of the qualifications which is spelled out in sec. 88 and
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which p where it comes into play, will prevent a provincial law from
applying.
still open.
It is interesting that the argument was not dismissed. It is
If it is ever accepted, then, under the doctrine of
referential incorporation p the reach of provincial laws will be
significantly extended. Thus p would Peace Arch still be good law?
Let us return to matrimonial law. It is common to find in such
legislation a provision under which the court can order that one spouse or
the other have interim exclusive occupation of the family home. Can that
be done when the home is on Certificate of Possession land? The Supreme
Court has also answered that question. Such an order was sought, under
the British Columbia legislation, in Paul v. Paul. 25 The order was
refused. Chouinard J., again speaking for his Court, said,
This case is indistinguishable from Derrickson. To holdotherwise would mean that the husband by virtue of hisCertificate of Possession would be entitled to possession andconsequently to occupation of the family residence while thewife, by an order made under The Family Relations Act would beentitled to interim exclusive occupancy of the same residence.In my view • even assuming that s. 88 of the Indian Actapplies to lands reserved for the Indians, the provisions of s.77 (of the B.C. Act) relating to occupancy of the familyresidence on the reserve are in "actual conflict" with theprovisions of the Indian Act.
Note again how the door is left ajar for the possible extension of
sec. 88 so as to embrace land laws.
Certificate of Possession land can be held by two or more Indians in
joint tenancy or tenancy in common. In such a case will the English
Partition Act of 1868 (still part of the law of Saskatchewan) apply? If
Re Bell and Bell, a decision of the Ontario Supreme Court is still good
law, then the answer is "yes.,,26 In that case Stortini, Co. Ct. J.
(sitting as a Local Judge) held, first, that partition legislation did not
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deal with "the use of Indian lands." Therefore, as a law of general
application, it was within sec. 88. He further held that there was
nothing in the Indian Act which was in conflict with the provincial
statute. With respect, that is a somewhat startling conclusion. While
under sec. 24 of the Indian Act Certificate of Possession lands may be
sold to another member of the same band, or to the band itself, no such
sale is effective until it has been approved by the Minister of Indian
Affairs. Surely that amounts to conflict.
Further, Bell has to be considered in light of Derrickson. It, of
course, was concerned with matrimonial property legislation. The section
of the Act, however, under which division of the home was sought also gave
a court the right to order partition. Arguably, the decision would be
applicable to a partition action between joint tenants or tenants in
common. It is submitted that Bell is doubtful authority.
Now let us consider builders' lien legislation. Can it apply to
Certificate of Possession lands? There is no case dealing with the point.
It seems clear, however, that it cannot apply--at least until such time as
the Supreme Court may decide that sec. 88 embraces Indian lands. Such
legislation provides for eventual judicial sale of land in the enforcement
of the lien. Surely the reasoning in Derrickson and Paul would extend to
such a case.
But not all Indian reserve lands are held under Certificate of
Possession. Suppose a band council arranges for construction to be
undertaken on other reserve lands. Will the legislation then apply? In
Palm Dairies v. The Queen27 , the Federal Court, Trial Division held that
it does not. The headnote reads,
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Yhere lands are reserved for Indians . . . exclusive legislativejurisdiction remains in the Parliament of Canada so thatprovincial legislation is inapplicable. Since a mechanics' lienis created by statute, a provincial statute purporting to createa mechanics' lien cannot apply to land reserved for Indians.
On the authorities, however, there can be a case where the
legislation will apply. It involves surrendered reserve lands. Section
38 of the Indian Act provides for this. It reads
(1) A band may surrender to Her Majesty any right or interest ofthe band and its members in a reserve.
(2) A surrender may be absolute or qualified, conditional orunconditional.
Following a surrender, sec. 41 comes into play. It provides
shall beenable
A surrendernecessary tosurrender.
deemed to confer all rights that areHer Majesty to carry out the terms of the
Yith all that in mind let us now consider Vestern Industrial
Contractors Ltd. v. Sarcee Developments Ltd.,28 a decision of the Alberta
Court of Appeal. In that case an Indian band had conditionally
surrendered part of its reserve so as to permit the Crown to lease it to
the defendant company, the shareholders of which were all members of the
particular band. The lease was made. The defendant then proceeded to
undertake various developments. In part it entered into a contract with
the plaintiff for the provision of a water distribution system and sewage
works. The defendant never paid for the job. The plaintiff asserted a
right to a lien. The court held
(i) That a lien could not attach to the reversionary interestin the lands held (through the Crown) by the Band, but
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(ii) It could attach the leasehold interest of the defendantcompany.
Staying with a case like Western Industrial a further question
arises. Where would the lien against the leasehold estate be registered?
Obviously not in a Land Titles Office. Indian reserve lands are not under
the Land Titles Acts of any of the western provinces. There are no
certificates of title issued with respect tot hem. The answer is found in
sec. 22 of the Indian Act, for what it is worth. It reads
There shall be kept in the Department a register, tothe Reserve Land Register, in which shall be enteredrelating to Certificates of Possessiontransactions respecting lands in a reserve.
be known asparticularsand other
Finally, let us get away from provincial legislation which involves
land and consider certain types of statutes which may apply to Indians as
persons while on their reserves.
First, trade union legislation: it will apply so long as the
undertaking involved is not a federal one. If it is, then the Canada
Labour Code29 will apply.30
Second, child welfare legislation: it will apply.31
Third, child adoption legislation (whether or not the child and
parents, natural or adoptive are resident on a reserve): following the
Dick case it will clearly apply.32 Why does Dick support that conclusion?
The" reason is that, arguably, this kind of provincial legislation strikes
at "Indianness." Thanks to referential incorporation, this is no longer a
problem.
Let us end with putative fathers who are Indians (whether on or off a
) Th b ' , I 'I ' 33reserve. ey are su Ject to malntenance egls atlon.
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FOOTNOTES
1. E.g., R. v. Hill, (1908), 15 O.L.R. 406, where an Indian wasconvicted of practising medicine contrary to a provincial Act. R.v. Martin, (1917), 41 O.L.R. 79, where an Indian was convicted ofpossession of intoxicating liquor contrary to provincial law.
2. Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161.
3. R. v. Sutherland (1980), 113 D.L.R. (3d) 374 (S.C.C.).
4. R. v. George, [1966] S.C.R. 267.
5. Supra, footnote 1.
6. R. v. White and Bob, (1965), 52 D.L.R. (2d) 481 (S.C.C.).
7. (1977), 75 D.L.R. (3d) 434, at pages 438-440.
8. R.S.C., 1970, c. M-14.
9. The Constitution Act, 1867, sec. 92(10)(a).
10. Coughlin v. Ontario Highway Transport Board, [1968] S.C.R. 569.
11. R.S.S. 1978, c. M-4.
12. An early North West TerritoriesNan-e-quis-ka, [1899] 1 Terr.Woolwich (1869) 1 C.N.L.C. 70.
case upheld one. See R. v.L.R. 211. See also ConnolIY v.
13. S.S. 1979, c. M-6-1.
14. This hypothetical ignores a possible attack on the Marriage Act basedon sec. 2 of The Canadian Charter of Rights and Freedoms--freedomof religion.
15. (1970),74 W.W.R. 380.
16. [1978] 6 W.W.R. 37 (Man. P.C.).
17. (1982), 135 D.L.R. (3d) 700.
18. Ibid, at page 709.
19. R.S.S. 1978, c. R-22. Under sec. 3(1) the Lieutenant Governor inCouncil could, in certain situations, so order.
20. (1978), 84 D.L.R. (3d) 174; affirmed (1979),93 D.L.R. (3d) 230(N.S.C.A.).
21. (1978), 85 D.L.R. (3d) 618.
- 19 -
22. Supra, footnote 13.
\ 23. [1982] 6 V.V.R. 92.I
24. [1986] 1 S.C.R. 285.
25. [1986] 1 S.C.R. 306.
26. (1977), 78 D.L.R. (3d) 227.
27. (1978) , 91 D.L.R. (3d) 665.
28. (1979) , 98 D.L.R. (3d) 424.
29. R.S.C. 1970, c. L-1.
30. Re Four B Manufacturing Ltd. v. U.G.V.A., (1980), 102 D.L.R. (3d) 385(S.C.C.); Vhitebear Band Council and Carpenters' Union, (1982),135 D.L.R. (3d) 128 (Sask. C.A.).
31. Re Nelson (1975), 56 D.L.R. (3d) 567 (Man. C.A.); Director of ChildVelfare v. ~ [1979] 6 V.TH.R. 229 (Man. P.C.).
32. Natural Parents v. Superintendent of Child Velfare, (1975), 60 D.L.R.(3d) 148 (S.C.C.).
32. Re Baptiste, [1979] 6 V.V.R. 560 (Alta. Q.B.).
I/
55- 20 -
DICK V. R. AND ATTORNEY GENERAL OF CANADA AND ATTORNEY GENERAL OFNOVA SCOTIA
Supreme Court of Canada, Dickson C.J., Beetz, Estey, McIntyre andChouinard JJ., October 31, 1985
A. Pape, E John and R. Salter, for the appellantP.D. Messner, for the respondentJ. Rook and P.K. Doody, for the Attorney General of CanadaR.E. Lutes, for the Attorney General of Nova Scotia
The appellant, a non-treaty Indian of the Alkali Lake Bandappealed from the judgment of the British Columbia Court of Appeal([1983] 2 C.N.L.R. 134), dismissing his appeal from his conviction([1982] 3 C.N.L.R. 167) of killin~ a deer out of season contraryto s.3(1) of the Wildlife Act, R.S.B.C. 1979, c.433 (repealedS.B.C. 1982, c.S7, s.123).
The issues before the Court were: (1) whether the Wildlife Actimpairs the status and capacity of Indians, therefore Invading thefederal field under s.91 (24) of the Constitution Act, 1867; (2)if so, whether the Wildlife Act is a law of general applicationreferentially incorporated int~ federal law by s.88 of the IndianAct', R.S.C. 1970, c.t-6; and (3) whether this appeal raises aquestion of law alone for the purpose of s.114 of the Offence Act,R.S.B.C. 1979, c.305.
Held: Appeal dismissed.
Per Beetz J. (Dickson C.J., Estey, Mclntyr~ and Chouinard JJ.concurring)
1. While it is assumed that the Wildlife Act impairs the statusor capacity of the appellant, it has not been establishedthat the legislative policy of the Wildlife Act singles outIndians for special treatment or discrimi.nates against themin any way. The Wildlife Act is therefore a law of generalapplication within the meaning of s.88 of the Indian Act.
2. Section 88 of the Indian Act does not incorporate byreference all provincial laws of general application.Section 88 refers to provincial legislation which, per se,would not apply to Indians under the ~ian Act unless givenforce by federal reference. Provincial laws of generalapplication which can apply to Indians without touching theirIndianness apply to them ex proprio vigore.
[1985] 4 C.N.L.R.
56- 21 -
3. The Court entertained doubts as to whether the first twoissues on which the appeal was taken to the Court of Appealwere founded "on any ground that .involves a question of lawalone". The Court concluded that it did not appear possibleto resolve the issues without weighing the evidence adducedby the parties. However, since the appeal was beingdismissed it was not necessary to decide the question.
* * * * * *
BEETZ J.:
I. The facts
The facts are not in dispute. They are summarized by LambertJ .A., dissenting in the British Columbia Court of Appeal whosereasons for judgment are reported: R. v. Dick (1982), 41 B.C.L.R.173, 3 C.C.C. (3d) 481, [1983] 2 C.N.L~134. At pp.484-85[po137 C.N.L.R.], Lambert J.A. related the facts:
Arthur Dick is a member of the Alkali LakeBan d 0 f t he Shu swap pe 0 pIe • 'Heli ve son theAlkali Lake Reserve in the Chilcotin Districtof the County of Cariboo. He is a non-treaty-Ind i an.
The Alkali Lake Band is comprised of about 10families, or approximately 350 people, alltold. They subsist in large measure byforaging. They catch fish for food and theykill deer and moose for food and other uses.
The Shuswap word for May is "Pellcwewlemten".It means "time to go fishing". In response tothis imperative Arthur Dick and two other bandmembers, with two members of the Canoe CreekBand, set off on May 4, 1980, for GustafsenCreek, where they intended to catch fish. Onthe way they passed Holdon Lake. ThereArthur Dick killed a deer with a rifle. Hispurpose was to provide food for the members ofthe foraging party and for other band members.The carcass, cut up in pieces, was taken on toGustafsen Creek where a provincialconservation officer and four R.C.M.P.constables found the five Indians in possesionof dip nets, a number of rainbow trout, andthe deer meat.
[1985] 4 C.N.L.R.
57
- 22 -
One precisi.on should perhaps be added. Theoccurred in the traditional hunti.ng groundsBand but outsi.de a reserve. I now return tofacts by Lambert J.A. [pp. 137-38 C.N.L.R.]:
killing of the deerof the Alkali Lakethe recital of the
The Wildlife Act, R.S.B.C. 1979, c.433, saidit was a closed season for hunting for deer.So Arthur Dick was charged under the Act withtwo counts; first, with killing wildlife, towit; one deer, at a time not within the openseason, contrary to s.3(1); and secondly, withpossession of wildlife that was dead, to wit:parts of one deer, during a closed season,contrary to s.8. It was also a closed seasonfor fishing in Gustafsen Creek. All fiveIndians were charged with respect to thefishing, and those charges are thesubject-matter of a separate appeal by theCrown, raising quite different issues fromthose raised in this a~peal.
The trial took place before His Honour JudgeGilmour, a judge of the provincial court. Theevidence was extensive. The accused wasconvicted on the first count and sentenced toa fine of $50. 0 No conviction wOas entered onthe second count. The accused appealed. Hisappeal was heard by His Honour Judge Andrews,sitting as a judge of the County Court of theCounty of Cariboo. The a~peal was dismissed.Both Judge Gilmour and Judge Andrews reservedjudgment and each of them prepared full andcarefully considered written reasons.
An application has now beencourt, under s.114 of theR.S.B.C. 1979, c.305, for leaveground or grounds involvingquestions of law alone.
made to thisOff en c e Ac t ,
to appeal on aa question or
Leave to appeal was granted by the Court of Appeal but the appealwas dismissed, Lambert J.A. dissenting.
Appellant further app~aled to this Court by leave of this Court.
)[1985] 4 C.N.L.R.
58
II. The issues
- 23 -
Dick Vo R.
Appellant and respondent appear to agree in substance as to t-hei.ssues raised by thts appeal, save oneo But they express themdifferently and 1 find it preferable to rephrase them as follows:
1. Is the practice of year-round foraging for food so central tothe Indian way of life of the Alkali Lake Shuswap that itcannot be restricted by ss03(1) and 8(1) of the Wildlife Act,R.SoB.C. 1979, c.433 [rep. by SoBoC. 1982, coS7, s.123]without impairment of their status and capacity as Indi.ans,and invasion of the federal field under para091(24) of theConstitution Act, 18671
2. If the answer to the first question is in the affirmativeand, con seq uen t 1y , the lli.-d 1 i f e Ac tea nnot a p ply ex pro p r t 0
vigore to the appellant, then is this Act a law of generalapplication referentially incorporated into federal law byso&8 of the Indian Act, R.S.C. 1970, c.I-6, which provides:
88. Subject to the terms of any treaty and anyother Act of the Parliament of Canada, alllaws of general application from time to timein force in any province are applicable to andin respect of Indians in the province, exceptto the extent that such laws are inconsistentwit h t his Ac tor any 0 r d e r, r u 1e, reg u1a t ionor by-law made thereunder, and except to theextent that such laws make provision for anymatter for which provision is made by or underthis Act.
3. Does this appeal raise a question of law alone for thepurpose of s.114 of the Offence Act, R.S.B.C. 1979, c.30S?
The third issue was raised only by respondent.
In addition, a constitutional question was stated by the ChiefJustice:
Are ss.3(1)(c) and 8(1) of the Wildlife Act,RoS.B.C. 1979, co433, constitutionallyinapplicable in the circumstances of this caseon the ground that the restriction imposed bysuch sections affects the appellant ~ Indianand therefore may only be enacted by theParliament of Canada pursuant to s.9l(24) ofthe Constitution Act, 18671
(1985) 4 C.N.L.R.
- 24 -
Dick v. R.
59
The Attorney General of Canada and the Attorney General of NovaScotia intervened in support of respondent.
Another issue had bp.en raised by appellant in the Court of Appeal.namely whether the County Court Judge had erred in holding thatthe manner of administration of the Wildlife Act by provincialofficials, somewhat mi.sleadingly referred to as the policy ofthe Act - had not significantly changed since the judgment of thisCo u r tin Kr u ge rand Man u e 1 v. ~ , [ 19 78 } 1 S. C• R• 104, [ 1 9 7 7] 4W.W.R. 300, 75 D.L.R. (3d) 434, 15 N.R. 495, 34 C.C.C. (2d) 377.But the Court of Appeal, following R. v. Haines (1981), 34B.C.L.R. 148, (198l} 6 W.W.R. 664, ---(1982] 2 C.N.L.R. 135,unanimously held that this issue was not a "ground that involved aquestion of law alone". While appellant referred in his factum tothe po Ii c Y of the provine i a 1 government no t to t s sue sus ten a neepermits for out of season hunting by Indians who regularly dependon hunting for their food. 1 did not understand him to press thismatter in this Court a8 a distinct issue.
One issue that does not arise is that of aboriginal title orrights. In its factum, the appellant expressly states that he has"not sought to prove or rely on the Aboriginal Title or Rights tnthe case at bar". As in the Kruger and Manuel case, the issuewi 11 accordingly not be dealt with any mor~ than the related orincluded question whether the Indians' right to hunt is a personalright or, as has been suggested by some learned authors, is aright in the nature of a profit a prendre or some other interestin land covered by the expression "Lands reserved for theIndians", rather than the word "Indians" in para.9l(24) of theConstitution Act, 1867. (See Kenneth Lysyk, "The UniqueConstitutional Position of the Canadian Indi.an" (1967),45 Can. BarRev. 513 at pp.5l8-l9; Anthony Jordan, Government. TwoIndians, One (1978), 16 Osgoode Hall L.J. 709 at p.7l9). Nosubmission was made on this last point and in this Court, as wellapparently as in the courts below, the case has been argued as ifthe Indians' right to hunt were a personal one.
III. The fist issue
Appellant's main submission which was apparently presented in theCourt of Appeal as an alternative argument, is that the Wildt'ifeAct strikes at the core of Indianness, that the question stated inthe first issue should accordingly be answered in the affirmativeand the Wildlife Act, while valid legislation, should be read downso as not to apply to Appellant in the circumstances of the caseat ba r.
[1985] 4 C.N.L.R.
60 - 25 -
Dick v. R.
As was noted by Andrews Co. Ct. J •• whose reasons for judgment arereported sub nom. R. v. Tenale et a1. (1982), 66 C.C.C. (2d) 180.at pp. 182-83 [sub nom. Tenale v. R.; Dick v. R., [1982} 3C.N.L.R. 167, at pp.168-69}:
A considerable volume of evidence was calledat trial as to Indian culture, habits.history, the significance of hunting andfishing as part of that culture. andspecifically as to provincial conservationobjectives and methods. sustenance permits,food requirements, traditional claims and soon. This testimony was supported by variousmaps as to alleged historic hunting areas.policy statements and lengthy opinion evidenceof a Dr. M. Asch, an anthropologist who is theauthor of numerous papers dealing with. interalia, aboriginal rights.
Pro~incial Court Judge Gilmour stated.judgment:
in his reasons for
1 have reviewed the evidence in the case atbar and I am not convinced that the policy· ofeither the Fishing or Game legislation aspresently expounded by the Provincial andFederal Governments and under review in thiscase, is such that it was intended to or doesin fact "impair the status or capacities ofIndians".
At p.19l (p.176 C.N.L.R.] of his reasons. Andrews Co. Ct. J.wrote:
1 have reviewed this matet'ial and thesubst~ntial testimony of trial wit~esses. Itis apparent therefrom that hunting and fishingforms a significant part of the Indianc u 1 t u r e • 1 don 0 teo nc 1 ud e howe ve r, t hat t·h etrial Judge was in error. I do not find inall of that evidence anything from which Imight have reasonably concluded that thepolicy of the Wildlife Act was such as toimpair, at least in any substantial way. thestatus and capacity of the appellants. I donot find in all that evidence anything fromwhich I can reasonably conclude that status
(19851 4 C.N.L.R.
- 26 -
Dick v. R.
and capacity of the appellant was impaired toany greater degree than those Indians involvedin the Kruger and Manuel and Haines cases,supra.
As to the argument that the Wildlife Actaffects this appellant ~ Indian and thuscannot apply to him because the federalauthorities have exclusive jurisdiction overIndians, I do not agree.
61
In the Court of Appeal, Seaton J.A. concluded as follows at p.484[p.136 C.N.L.R.]:
The decisions under attack were primarilydecisions of fact. To the extent that therewere questions of law alone, 1 am notpersuaded that error has been shown. I wouldgrant leave, but dismiss the appeal.
Macdonald J.A. refrained from expressing any views on the meritsof the three issues raised in the Court of Appeal. At p.496[p.137 C.N.L.R.] he concluded:
My opinion is that none ofinvolves a question of lawtherefore dismiss the appeal.
the thrC!ealone.
issues1 would
The reasons of Lambert J.A., dissenting, are quite elaborate. Forthe greater part, they expound the similarities and differencesbetween the case at bar and Kruger and Manuel and hisunderstanding of the tests adopted in the latter case to determinewhether a law is one of general application, a matter to which Iwill return in dealing with the second issue. But he used thesame tests to answer the question staten in the first issue,namely whether the application of the Wildlife Act to appellantwould regulate him qua Indian. Here is what he wrote at p.492[pp.l44-45 C.N.L.R.]:
••• it seems to me that the same tests as areapplied to determine whether the applicationof a provinci.al taw to a particular group ofIndians in a particular activity is theapplication of a law of general application,should also be applied to determine whetherthe application of a -p-rovincial law to aparticular group of Indians in a particularactivity is legislation in relation to Indiansin their Indianness.
[1985] 4 C.N.L.R.
62- 27 -
Dick v. R.
So, subject to the question of referentialincorporation, which 1 will come to next, itis my opinion that the evidence and argumentwhich I h~ve set out in Part III of theseI' e a son s r eq u ire the' con c 1 u s ion t hat theWildlife Act should be "read down" in order' topreserve its constitutionality. That "readingdown" would prevent it from applying to ArthurDick in his activity in this case.
1 tis well worth quotingargument set out in Partwhich, as I just said, ~ere
first issue. He wrote, atC.N.LeR.]:
substantialIII of thealso reliedpp.487, and
parts of the evidence andreasons of Lambert J.A.,upon by him to resolve the489 to 491 [pp.l39, 142-44
In Kruger and Manuel v. The Queen, supra, thetwo accused were members of the PentictonIndian Band. They shot four deer for food onunoccupied Crown land on the traditionalhunting grounds of the Penticton Indian Band.It was the closed season under the WildlifeAct and Kruger and Manuel did not have' asustenance permit which would have allowedthem to shoot a deer during the closed season.They were convicted. Their appeal to JudgeWashington took the form of a trial de novo.It was allowed. The Crown appealed to thisCourt. That appeal was also allowed and thl:!convictions were restored: 24 C.C.C. (2d)120, 60 D.L.R.(3d) 144, [1975) 5 W.W.R. 167.Kruger and Manuel appealed to the SupremeCourt of Canada. Their appeal was dismissed.Mr. Justice Dickson's reasons were the reasonsof the full court of nine.
• • •
The evidence 1n this appeal goes much furtherthan the agreed facts in Kruger and Manuel v.The Queen. Here there is evidence whichindicates that the line demarking laws ofgeneral application from other enactments hasbeen crossed. In Kruger and Manuel v. TheQueen the only relevant evidence was thestatement in the agreed facts that the accusedhad hunted deer during the closed season onland that was the traditional hunting grounds
[1985] 4 C.N.L.R.
- 28 -
Dick v. R.
of the Penticton Indian Band. There was noevidence that the statutory restrictions onthe right to hunt impaired the status andcapacities of Kruger and Manuel as Indians.There was no evidence that the PentictonIndian Band depended on hunting for theirsupply of meat. There was no evidence that itwould be impracticable to hunt sufficient meatduring the open season. There was no evidenceas to the amount of meat obtained throughhunting, the amount of meat needed to feed anIndian family for a year, or the amount ofmeat allowed to Indians under the prevailinghunting quotas. Finally, there was noevidence to indicate that hunting was centralto the way of life of the Penticton 1n4ianBand. There was, in the words of Mr. JusticeDickson, an "absence of clear evidence" thatthe provisions in the Wildlife Act crossed theline demarking laws of general applicationfrom other enactments.
63
The situation is entirely different inpresent appeal where, in my opinion,evidence indicates that the line hascrossed.
thethe
been
Nine members of the Alkali Lake Band and threemembers of the Canoe Creek Band gave evidence.They described their lives and thesignificance of the rituals of food gathering.They told of their dependence on moose anddeer for food and for traditional and valueditems of daily clothing and ceremonialclothing. Their evidence was placed in itscultural framework by Mr. Michael Asch, ananthropologist.
In 1980, the year in which Arthur Dick shotthe deer at Haldan Lake, there wer~ ~5 activehunters in the Alkali Lake Band. They took117 deer and 48 moose in the year. Thatprovided a yield of 65 to 70 pounds of meatfor every man, woman and child in the Band.The meat was shared out among band members inaccordance with the institutional practices o~
the Shuswap people.
[1985] 4 C.N.L.R.
64
- 29 -
Di c k v. R.
The times of year for hunting animals and forfishing, the places to hunt, and thetechniques of hunting are taught to young maleme mb e r s oft h e ban d b y t he i .r fat her sandg rand f a't he r s.
Some of the meat is smoked, some is salted,some is frozen, and some is eaten fresh. Thepreservation of the meat and .the preparationof food is largely done by the women of theband. Women also tan and treat the hides andmake the traditional clothing. The skills andtechniq~es for presetving food and makingclothing are handed down from one generationto the next.
When the me a t sup ply I' U nsou t t he hun t e r s g 0
out for more.
They go when it is needed. That happens everyspring when the supply of preserved meat, fromanimals killed in the fall, comes to an end.
The hunters in the Alkali Lake Band do nothunt for trophies; they do not hunt forrecreation, nor do they look on hunting asrecreation; they do not leave the carcasses ofthe animals they kill in the woods. If theywork for wages it is not as an alternative tohunting but in order to acquire the means tohunt for food.
Ricky Di·ck, a member of the Alkali Lake Band,and one of the foraging party on May 4, 1980,gave evidence that his own family needs fouror five deer each year for food. But theevidence of the conservation officer at 100Mile House is that the limit for one hunter inone year from Region 5 is one deer. Ofcourse, if you travel from one region toanother, as recreational hunters do, then you.can shoot deer in other regions to a totalkill of three deer in one year. But, for thehunters of the Alkali Lake Band, the WildlifeAct and regula t io ns , i f t he y we ret a a p ply ,~ld prOVide a limit of one deer for eachhunter in each year within their huntinggrounds.
[1985) 4 C.N.L.R.
- 30 -
Dick v. R.
Dr. Asch drew the relationship between thetestimony of the Indian witnesses and theinstitutions and practices of the traditionalway of life of the Alkali Lake Band of theShuswap people.
In my opinion, it is impossible to read theevidence without realizing that killing fishand animals for food and other uses givesshape and meaning to the lives of the membersof the Alkali Lake Band. It is at the centreof what they do and what they are.
In my opinion, this case is distinguishablefrom Kruger and Manuel v. The Queen (1977), 34C.C.C. (2d) 377, 75 D.L.R. (3d) 434, [1978] 1S.C.R. 104, because h~re the appellant has ledevidence which, tn my opinion, establishesthat the Wildlife Act in its application tohunting for food impairs the status andcapacities of the Alkali Lake Band members andcrosses the line demarking laws of generalapplication from other enactments.
65
And, before concluding at p.495 [po 147 C.N.L.R.) Lambert J.A.wrote:
Indeed, I would add that if the facts in thiscase do not place the killing of the deerwithin the central core of Indianness, ifthere is one, or within the boundary thatoutlines the status and capacities of theAlkali Lake Band, then it is difficult toimagine other facts that would do so.
In Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695 atp.706, [1973] 6 W.W.R. 205, 40 D.L.R. (3d) 553, 13 C.C.C. (2d) 1,it had already been held, apart from any evidence, that provincialgame laws do not relate to Indians qua Indians. In the case atbar, there was considerable evidence capable of supporting theconclusions of Lambert J.A. to the effect that the Wildlife Actdid impair the Indianness of the Alkali Lake Band, as well as theopposite conclusions of the courts below.
1 am prepared to assume, without l'ieciding, that Lambert J.A. wasright on this point and that appellant's submission on the firstissue is well taken.
[1985) 4 C.N.L.R.
66
- 31 -
Dick Ve R.
1 must confess at being strengthened in this assumption by whatLambert J.A. said at p.493 [pp.l4S-46 CeN.L.R.}:
The question of whether provincial legislationaffects Indians as lndiansi or Indians intheir Indianness, to put it another way, is atthe root of both arguments that I haveconsidered in this appeal. I think. it isworth adding that I have derived some sense ofthe nature of Indianness from the fact thatthe Indians in Alberta, Saskatchewan andMani to ba have the ri gh t to hun t and f 1. sh forfood at all seasons of the year (see theNatural Resources Agreements and theConstitution Act, 1930, R.SeC. 1970, AppendixII, No. 25), and the treaty Indians in BritishColumbia also have that right: see R. v.Wh i tea nd Bob ( 19 6 5 ), 5 2 D• t. • R• (2 d) 481 n. ,[1965] SeC.R. vi. I think that those rightsare characteristic of Indianness, at least forthose Indians, and if for those Indians, whynot for the Alkali 'Lake Band of the Shuswappeople?
On the bas is 0 f t his ass u mp t ion and sub j e c t tot h e que s t ion 0 frefe-rential tnc-orporation which will be dealt with in the nextchapter, it follows that the Wildlife Act could not apply to theappellant ex proprio vigore, and, in order to preserve itsconstitutionality, it would be necessary to read it down t.oprevent its applying to appellant in the circumstances of thiscase.
IV. The ~econd issue
In holding that the tests adopted by this Court 1n Kruger andManuel to determine whether a law is one of general applicationare the same tests which should be applied to determine whetherthe application of the Wildlife Act to appellant would regulatehim in his Indianness, Lambert J.A. felt into error, in myrespectful opinion. And this error r~sulted from amisapprehension of what was.decided in Kruger and Manuel a~ to thenature of a law of general application.
The tests which Lambert J.A. applied in reviewing the evidence inhis above quoted reasons are perfectly sultable to determinewhether the application of the Wildlife Act to the appellant wouldhave the effect of regulating him qua Indian, with theconsequential necessity of a reading down if it did; but, apartfrom legislative intent and colourability, they have nothing to do
[1985] 4 C.N.L.R.
67- 32 -
Dick v. R.
with the question whether the Wildlife Act is a law of generalapplication. On the contrary, it is precisely because theWildlife Act is a law of general application that it would have tobe read down were it not for s.88 of the Indian Act. If thespecial impact of the Wildlife Act on Indians had been the veryr~sult contemplated by the legislature and pursued by it as amatter of policy, the Act could not be read down because it wouldbe in relation to Indians and clearly ultra vires.
The Wildlife Act does not differ in this respect from a great manyprovincial labour laws which are couched in general terms andwhich, taken literally, would apply to federal works andundertakings. So to apply them however would make them regulatesuch works and undertakings under some essentially federalaspects. They are accordingly read down so as not to apply tofederal works and undertakings: Reference as to the applicabilityof the Minimum Wage Act of Saskatchewan to an employee of aRevenue Post Office, [1948] S.C.R. 248; Commission du sa1aireminimum v. Bell Telephone Company of Canada, [1966] S.C.R. 767, 59D.L.R. (2d) 145; Letter Carriers' Union v. C.U.P.W., [1975] 1S.C.R. 178. But it has never been suggested, so far as I know,that, by the same token, those provincial labour laws cease to belaws of general application.
In his reasons for judgment,· Lambert J .A. relied on two passagesof Kruger and Manuel which he quoted and commented. The firstpassage is to be found at p.1l0 of the Supreme Court Reports:
If the law does extend uniformly throughoutthe jurisdiction the intention and effects ofthe enactment need to be considered. The lawmust not be "in relation t~" one class ofcitizens in object and purpose. But the factthat a law may have graver consequence to oneperson than to another does not, on thataccount alone, make the law other than one ofgeneral application. There are few laws whichhave a uniform impact. The line is crossed,however, when an enactment, though in relationto another matter, by its effect, impairs thestatus or capacity of a particular group.
The second passage of Kruger and Manuel quoted by Lambert J.A. isat p.llZ of the Supreme Court Reports:
Game conservation laws have as their policythe maintenance of wildlife resources. Itmight be argued that without 80mp. conservationmeasures the ability of Indians or others to
[1985] 4 C.N.L.R.
68 - 33 -
Dick v. R.
hunt for food would become a moot issue inconsequence of the destruction of theresource. The presumption is for the validityof a legislative enactment and in this casethe presumption has to mean that in theabsence of evidence to the contrary themeasures taken by the British ColumbiaLegislature were taken to maintain aneffective resource in the Province for itscitizens and not to oppose the interests ofconservationists and Indians in such a way asto favour the claims of the former. 1£, ofc 0 U l' S e, i t can be s h 0 wn i n f u t u r eli t i gat ionthat the Province has acted in such a way asto oppose conservation and Indian claims tothe detriment of the latter - to "preservemoose before Indians" in the words of GordonJ • A• i n ~ v. S t l' on g qui 11 ( 1 9 5 3 ), 1 0 5 C. C • C •262, [1953] 2 D.L.R. 264, 8 W.W.R. (N.S.) 247- it might very well be concluded that theeffect of the legislation is to cross the linedemarking laws of general application fromother enactments. It would have to be shownthat the polley of such an Act was .to impairthe status and capacities of Indians. Werethat so, s.88 would not operate to make theAct applicable to Indians. But that has notbeen done here and in the absence of clearevidence the Court cannot so presume.
Lambert J.A. then emphasized the importance of the effect of thelegislation as opposed to its purpose. At p.489 [p.142 C.N.L.R.]of his reasons he wrote:
••• evidence about the motives of individualmembers of the Legislature or even about themore abstract "intention of the legislature"or "legislative purpose of the enactment" isnot relevant. What is relevant i:3 evidenceabout the effect of the legislation. In fact,evidence about its "application".
With all due deference, it seems to me that the correct view isthe reverse one and that what Dickson J., as he then was, referredto in Kruger and Manuel when he mentioned laws which had crossedthe line of general application were laws which, ~ither overtly orcolo u r a b 1y , sing 1e out Ind ian 8 for s p e cia 1 t rea t men tandim p airtheir status as Indians. Effect and intent are both relevant.Effect can evidence intent. But in order to determine whether 8
(1985] 4 C.N.L.R.
- 34 -
Dick v. R.
69
law is not one of general application, the intent, purpose orpolicy of the legislation can certainly not be ignored: th&y forman essential ingredient of a law which discriminates betweenvarious classes of persons, as opposed to a law of generalapplication. This in my view is what Dickson J. meant when in theabove quoted passage, he wrote:
It would have to be shown that the policy ofsuch an Act was to impair the status andcapacities of Indians.
I am reinforced in this view by the fact that at p.l13, Dickson J.quoted with approval the following passage of Davey J.A. in R. v.White and Bob (1965), 52 W.W.R. 193, at p.198:
Sees. 8 and 15 of the Game Act specificallyexempt Indians from the operation of certainprovisions of the Act, and from that I thinkit clear that the other provisions areintended to be of general application and toinclude Indians. If these general sectionsare sufficiently clear to show an intention toabrogate or qualify the contractual rights ofhun tin g not 0 rio u sly res e r ve d t 0 I n d i a·n s b yagreements such as Ex. 8, they would, in myopinion, fail in that purpose because thatwould be legislation in relation to Indiansthat falls within parliament's exclusivelegislative authority under sec.9l(24) of theB.N.A. Act, 1867, 30 & 31 Viet., ch. 3 andalso because that would conflict with sect. 87of the Indian Act passed under that auhtority.
1 am further confirmed in this view by one of the examples chosenby Dickson J. to illustrate, with an analogy, when a law is notone of general application. At p.llO, he mtentioned the case ofGreat West Saddlery Co. v. The King, [1921) 2 A.C. 91 whereOntario, Manitoba and Saskatchewan statutory provisions were heldultra vires so far as they paralysed the status and capacities offederal companies. Those provisions generally discriminatedbetween provincially incorporated companies and extra-provinc'ialcompanies including federal ones. They were clearly not laws ofgeneral application and on that ground thev were prima faciesuspicious from a constitutional point of view. I find itsignificant that Dickson J. abstained from referring to another"company case", that of A.G. for Manitoba v. A.G. for Canada,[1929) A.C. 260 where two Manitoba statutes prohibiting companiesfrom selling their own shares within the province without the
[1985J 4 C.N.L.R.
70 - 35 -
Dick v. R.
consent of a provincial commissioner or board were held not toapply to federal companies. Unlike the provisions considered 1nthe Great West Saddlery case, these two Manitoba statutes wereclearly laws of general application and they were in fact II rea ddown ll although this is not what was explicitly said since theexpression does not seem to have then been in use and the case wasa reference stating a specific constitutional question.
Reference should also be made to a later IIcompany case". MultipleAccess Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, 18 B.L.R. 138, 138D.L.R. (3d) 1, 44 N.R. 181, where it was held, inter alia thatss.113 and 114 of the Securities Act of Ontario, R.S.O. 1970,c.426 applied to federally incorporated companies. Dickson J. ashe then was, delivered the reasons of the majority. But there wasno division on this point. At p.l83 [S.C.R.} Dickson J. wrote:
It is well established tnat the provinces havethe power, as a matter of property and civilrights, to regulate the trade in corporatesecurities in the prOVince, prOVided thestatute does not single out federal companiesfor special treatment or discriminate againstthem in any way. There must be no impairmentof status or of the essential power to raisecapital for corporate purpose. But federalincorporation does not render a company immunefrom securities regulation of generalapplication in a province.
It has already been held in Kruger and Manuel that on its face.and in form, the Wildlife Act is a law of general application. Inthe previous chapter, I have assumed that its application toappellant would have the effect of regulating the latter quaIndian. However, it has not been demonstrated, in my view, thatthis particular impact has been intended by the provinciallegislator. While it is assumed that the Wildlife Act impairs thestatus or capacity of appellant, it has not been established thatthe legislative policy of the Wildlife Act singles out Indians forspecial treatment or discriminates against them in any way.
I accordingly conclude that the Wildlife Act is a law of 'generalapplication within the meaning of s.88 of the Indian Act.
It remains to decide whether tnereferentially incorporated to federalAct.
Wildlife Actlaws by s.88 of
has beenthe Indian
In Kruger and Manuel, Dickson J. wrote at p.llS:
(1985] 4 C.N.L.R.
- 36 -
Dick v. R.
There is in the legal literature a juridicalcontroversy respecting whether s.88referentially incorporates provincial laws ofgeneral application or·whether such laws applyto Indians ex proprio vigore. The issue wasconsidered by this Court in Natural Parents v.Superintenoent of Child Welfare, [1976] 2S.C.R. 751.
This controversy has so far remained unresolved in this Court.
71
I believe that a distinction should be drawn between twocategories of provincial laws. There ar~, on the one hand,provincial laws which can be applied to Indians without touchingtheir Indianness, like traffic legislation; there are on theother hand, provincial laws which cannot apply to Indians withoutregulating them qua Indians.
Laws of the first category, in my opinion, continue to apply toIndians ex proprio vigore as they always did before the enactmentof s.88 in 1951, then numbered s.87, - Statutes of Canada, 1951c.29, s.87 - and quite apart from s.88 - Vide Rex v. Hill (1980),1 5 o. L • R• 406 wher e a n Ind ian was con vict~o~n I a w~p r act iceof medicine contrary to a provincial medical act, and Rex v.Martin (1917-18), 41 O.L.R. 79 where an Indian was convicted ofunlawful possession of intoxicating liquor, contrary to aprovincial temperance act.
I have come to the view that it is to the laws of the secondcategory that s.88 refers. I agre~ with what Laskin C.J. wrote inthe Natural Parents case at p.763:
When s.88 refers to "all laws of generalapplication from time to time in force in anyprovince" it cannot be assumed to havelegislated a nullity but, rather, to have inmind provincial legislation which, per se,would not apply to Indians under the IndianAct unless given force by federal reference.
I am fully aware of the contention that it isenough to give force to the several openingprovisions of s.88, which, respectively, makethe "provincial" reference subject to theterms of any treaty and any other federal Actand subject also to inconsistency with theIndian Act and orders, rules, regulations orby-laws thereunder. That contention would
[1985] 4 C.N.L.R.
72- 37 -
Di c It v. R.
have it that s.88 is otherwise declaratory.On this view, however, it is whollydeclaratory save perhaps in its reference to"the terms of any treaty", a strange reason,in my view, to explain all the otherprovisions of s.88. I think too that thec~ncluding words of s.88, "except to theextent that such laws make provision for anymatter for which provision is made by or underthis Act" indicate clearly that Parliament isindeed effecting incorporation by reference.
1 a Iso ad optthen was, Ope
thecit.
suggestionp.552:
expressed by Professor Lysyk, as he
Provincial laws of general application willextend to Indians whether on or off reserves.It has been suggested that the constitutionpermits this result without the assistance ofsection 87 of the Indian Act, and that theonly significant result of that section is, byexpressly embracing all laws of generalapplication (subject to~he exceptions statedin the section), to contemplate extension ofpar~icular laws 'which otherwise might havebeen held to be so intimately bound up withthe essential capacities and rights inherentin Indian status as to hav~ otherwise requireda conclusion t·hat the provincial legislationamounted to an inadmissible encroachment uponsection 91(24) of the British North AmericaAct.
The word "all" in s.88 is telling but, as was noticed by the lateChief Justice, the concluding words of s.88 are practicallydecisive: it would not be open to Parliament in my view to makethe Indian Act paramount over provincial laws simply because theIndian Act occupied the field. Operational conflict would berequired to this end. But Parliament could validly provide forany type of paramountcy of the Indian Act over other provisionswhich it alone could enact, referentially or otherwisE!. It istrue that the paramountcy doctrine may not have been as precise In1951 as it has become, at a later date, but it is desirable toadopt a construction of s.88 which accords with establishedconstitutional principles.
In a supplementary factum, appellant argues that a prospectiveincorporation into the Indian Act of future provincial laws whichwould regulate the appellant qua Indian, involves interdelegation
[1985] 4 C.N.L.R.
- 38 -
Dick v. R.
73
of powers of a type held unconstitutional in A.G. of Nova Scotiav. A.G. of Canada, [1951) S.C.R. 31. In my opinion, A.G. forOntario v. Scott, [1956] S.C.R. 137 and Coughlin v. OntarioHighway Transport Board et al., l1968] S.C.R. 569, provide acomplete answer to this objection.
1 accordingly conclude that, in view of s.88 ofthe Wildlife Act applied to appellant even if, asit has the effect of regulating him qua Indian.
v. The third issue
the Indian Act,I have assumed,
I e n t e r t a i n g r a ve do u b t s a s towhe t he r t he fir s t two iss ue sonwhich an appeal was taken to the Court of Appeal were founded "onany ground that involves a question of law alon~".
The first issue was whether the Wildlife Act affects appellant quaIndian. The same issue arose on an alternative basis in R. v.Jack and Charlie (1982), 37 B.C.L.R. 238. [1982) 5 W.W.R.-193,[1982) 4 C.N.TJeR. 99, 139 D.L.R. (3d) 25 and, at p.4l Craig J.A.like Macdonald J.A. and, semble, also like Seaton J.A. in the caseat bar. held that it did not involve a question of law alone. Itdoes not appear possible to resolve that issue without weighingthe abundant evidence adduced by the parties. To quote DicksonJ., as he then was, speaking for the majority in Poitras v. The~~, [1974] S.C.R. 649 at p.653, it does se.em to be a. questionwhich
•• • can bereference tocase.
asked, andthe detail
answered, withoutof the particular
The first issue would appear to raise a question of mixed law andfact.
The second issue comprises two questions namely whether theWildlife Act is a law of general application and whether s.88 ofthe Indian Act referentially incorporates provincial laws ofgeneral application. The second question is probably one of lawalone but it constitutes .only one half of the problem. The otherhalf cannot be resolved without a consideration of whether it hasbeen established that, in enacting the Wildlife Act. ~helegislator intended to single out Indians for special treatment,again a matter of evidence. at least in part.
Even the constitutional question, referring as it does to "thecircumstances of this case", sounds like a question of mixed lawand fact, which is not unusual for constitutional questions: see
[1985] 4 C.N.L.R.
74 - 39 -
Dick v. R.
for instance Northern Telecom v. Communicati.on Work.ers, [1983] 1S.C.R. 733.
The matter is further complicated by s.41(3) of the Supreme CourtAct, R.S.C. 1970, coS-19, and amendments, which must be read inthe context of s.41(1):
41.(1) Subject to subsection (3), an appeallies to the Supreme Court from any final orother judgment of the highest court of finalresort in a province, or a judge thereof, inwhich judgment can be had in the particularcase sought to be appealed to the SupremeCourt, whether or not leave to appeal to theSupreme Court has been refused by any othercourt, where, wi.th respect to the parti.cularcase sought to be appealed, the Supreme Courtis of the opinion that any question involvedtherein is, by reason of its public importanceor the importance of any issue of law or anyissue of mixed law and fact involved in suchquestion, one that ought to be decided by theSupreme Court or is, for any other reason, ofsuch a nature or significance as to warrant.decision by it, and leave to appeal from suchjudgment is accordingly granted by the Suprem~
Court.
• •
(3) No appeal to the Supreme Court lies underthis section from the judgment of any courtacquitting or convicting or setting aside oraffirming a conviction or acquittal of anindictable offenc~ or, except in respect of aquestion of law or jurisdiction, of an offenceother than an indictable offence.
If the issues on which the appeal was taken to the Court of Appealdo not involve questions of law alone, it is arguable that theCourt of Appeal exceeded its jurisdiction in entertaining theappeal, in which case we could have granted leave to appeal onthis question of jurisdiction, while being precluded fromreviewing the merits. But since the Court of Appeal and theCounty Court have reached the same result, i.t becomes unnecessaryto decide whether the Court of Appeal has exceeded itsjurh-diction.
[1985] 4 C.N.L.R.
- 40 -
Dick v. R.
75
It may seem anomalous that this Court and even a Court of Appealbe cut off from a constitutional question of some importance, butit is not unheard of: thus, In re the application of the MinimumWage Act of Saskatchewan to an employee of a Revenue Post Officewas a reference ordered because, in that case, no appeal lay tothis Court from a decision of the Saskatchewan Court of Appeal.
These doubts, I would have to resolve if 1 thought that, on themerits, the appeal should succeed. But since I have reached theconclusion that the appeal should be dismissed in any event, 1beleive 1 can leave my doubts unresolved.
VI. The constitutional question
1 would answer the constitutional question as follows:
Ss.3(1) and 8(1) of the Wildlife Act, R.S.B.C.1979 c.433, being laws of general applicationin the Province of British Columbia, areapplicable to the Appellant either byreferential incorporation under s.88 of theIndian Act, R.S.C. 1970 c.I-6, or of their ownforce.
VII. Conclusions
I would dismiss the appeal and make no order as to costs.
[1985] 4 C.N.L.R.
)
OFFICE CONSOLIDATION
Indian Act
K.S., c. 1-6
amended by
c. 10 (2nd Supp.)1974-75-76,c.48
1978-79, c. 111980-81-82-83,cc.47,110
1984, cc. 40, 411985, c. 27
- 41 -
WARNING NOTE
Users of this office consolidation arereminded that it is prepared for convenienceof reference only and that, as such, it has noofficial sanction.
© Minister of Supply and Services Canada 1985
Available in Canada through
Authorized Bookstore Agentsand other bookstores
or by mail from
Canadian Government Publishing CentreSupply and Services Canada
Ottawa. Canada KIA OS9
Catalogue No. YX75·I·6·1985ISBN 0·660·53093·7
Canada: 52.75Other countries: 53.30
Augusll985
Price subject to change without notice.
- 42 -
Short title
Definitions
Mband"oband~.
"Band List"./iSIe....
Mc:hild"-enfant.
Mcounc:i1 of theband"~ons~iI...•
"Department".Minis/e,~
"elector"oIleetell"
CHAPTER 1-6
An Act respecting Indians
SHORT TITLE
1. This Act may be cited as the Indian Act.R.S., c. 149, s. I.
INTERPRETATION
2. (I) 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 inHer Majesty, have been set apart before,on or after the 4th day ofSeptember, 1951,(b) for whose use and benefit in common,moneys are held by Her Majesty, or(c) declared by the Governor in Council tobe a band for the purposes of this Act;
"Band List" means a list of persons that ismaintained under section 8 by a band or inthe Department;
"child" includes a child born in or out ofwedlock, a legally adopted child and a childadopted in accordance with Indian custom;
"council of the band" means(a) in the case of a band to which section74 applies, the council established pursuant to that section,(b) in the case of a band to which section74 does not apply, the council chosenaccording to the custom of the band, or,where there is no council, the chief of theband chosen according to the custom ofthe band;
"Department" means the Department ofIndian Affairs Clnd Northern Development;
"elector" means a person who(a) is registered on a Band List,
"estatc"obit'ns.
"Indian".llIdit'n.
"Indianmoneys"od~ni~rs ...•
"IndianRcgister".rt'g;s/r~....UintoxicantHoSpi,itu~ux.
"mcmbcrofaband".,"~,"br~....
"mentallyincompetcntIndian".IMi~n
m~lI/ale,"~n/
incapable-
"Minister".Minis/rb
"registered"<inse,i/.
"Registrar".,egis/,aire-
"reserve".,iserwo
"superintend.ent"..,1I,in/IiManlo
(v) is of the full age of eighteen years, ano(c) is not disqualified from voting at bandelections;
"estate" includes real and personal propertyand any interest in land;
"Indian" means a person who pursuant to thisAct is registered as an Indian or is entitled tobe registered as an Indian;
"Indian moneys" means all moneys collected,received or held by Her Majesty for the useand benefit of Indians or bands;
"Indian Register" means the register of personsthat is maintained under section 5;
"intoxicant" includes alcohol, alcoholic, spirituous, vinous, fermented malt or other intoxicating liquor or combination of liquors andmixed liquor a part of which is spirituous,vinous, fermented or otherwise intoxicatingand all drinks or drinkable liquids and allpreparations or mixtures capable of humanconsumption that are intoxicating;
"member of a band" means a person whosename appears on a Band List or who isentitled to have his name appear on a BandList;
"mentally incompetent Indian" means anIndian who, pursuant to the laws of fprovince in which he resides, has been founuto be mentally defective or incompetent forthe purposes of any laws of that provinceproviding for the administration of estates ofmentally defective or incompetent persons;
"Minister" means the Minister of IndianAffairs and Northern Development;
"registered" means registered as an Indian inthe Indian Register;
"Registrar" means the officer of the Department who is in charge of the Indian Registerand the Band Lists maintained in theDepartment;
"reserve" means a tract of land, the legal titleto which is vested in Her Majesty, that hasbeen set apart by Her Majesty for the useand benefit of a band;
"superintendent" includes a commissioner,regional supervisor, Indian superintendent,assistant Indian superintendent and anyother person declared by the Minister to be asuperintendent for the purposes of this Act,and with reference to a band or a reserve,
- 43 -
)
)
"surrenderedlands".u,,~s...•
"Band"
Exercise ofpowersconferred onband or council
Minister toadminister Act
- Authority ofDeputyMinister andcbiefofficer
means the superintendent for that band orreserve;
"surrendered lands" means a reserve or part ofa reserve or any interest therein, the legaltitle to which remains vested in Her Majesty,that has been released or surrendered by theband for whose use and benefit it was setapart.
(2) The expression "band" with reference toa reserve or surrendered lands means the bandfor whose use and benefit the reserve or thesurrendered lands were set apart.
(3) Unless the context otherwise requires orthis Act otherwise provides
(a) a power conferred upon a band shall bedeemed not to be exercised unless it is exer·cised pursuant to the consent of a majority ofthe electors of the band; and(b) a power conferred upon the council of aband shal1 be deemed not to be exercisedunless it is exercised pursuant to the consentof a majority of the council1ors of the bandpresent at a meeting of the council dulyconvened. R.S., c. 1·6, s. 2; 1985, c. 27, s. 1.
ADMINISTRATION
3. (1) This Act shal1 be administered by theMinister of Indian Affairs and Northern Development, who shal1 be the superintendentgeneral of Indian affairs.
(2) The Minister may authorize the DeputyMinister of Indian Affairs and Northern Development or the chief officer in charge of thebranch of the Department relating to Indianaffairs to perform and exercise any of theduties, powers and functions that may be or arerequired to be performed or exercised by theMinister under this Act or any other Act of thf.Parliament of Canada relating to Indi:!.!':affairs. R.S., c. 149, s. 3; 1966-67, c. 25, s. 40.
Act may bedeclaredinapplicable
Authorityconfirmed forcertain cases
Certain sectionsinapplicable toIndians livingoff reserves
Application ofcertainprovisions to allband members
(2) The Governor in Council may by proclamation declare that this Act or any portionthereof, except sections 5 to 14.3 or sections 37to 41, shall not apply to:
(a) any Indians or any group or band ofIndians or(b) any reserve or any surrendered lands orany part thereof,
and may by proclamation revoke any suchdeclaration.
(2.1) For greater certainty, and withoutrestricting the generality of subsection (2), theGovernor in Council shal1 be deemed to havehad the authority to make any declarationunder subsection (2) that he has made inrespect of section II, 12 or 14, or any provisionthereof, as each section or provision readimmediately prior to April 17, 1985.
(3) Sections 114 to 123 and, unless the Minister otherwise orders, sections 42 to 52 do notapply to or in respect of any Indian who doesnot ordinarily reside on a reserve or on landsbelonging to Her Majesty in right of Canada ora province. R.S., c. 1-6, s. 4; 1984, c. 40, s. 37;1985, c. 27, s. 2.
4.1 A reference to an Indian in the definitions "band", "Indian moneys" and "mental1yincompetent Indian" in section 2 or a referenceto an Indian in subsection 4(2) or (3), subsection 18(2), section 20, sections 22 to 25, subsection 31(1) or (3), subsection 35(4), section 51,section 52, subsection 58(3), subsection 61 (1),section 63, section 65, subsection 66(2), subsection 70(1) or (4), section 71, paragraph 73(g)or (h), subsection 74(4), section 84, paragraph87(a), section 88, subsection 89( I) or paragraph 107(b) shal1 be deemed to include areference to any person who is entitled to havehis name entered in a Band List and whosename has been entered therein. 1985, c. 27,s.3.
DEFINITION AND REGISTRATION OF INDIANS
Application ofAct
APPLICATION OF ACT
4. (1) A reference in this Act to an Indiandoes not include any person of the race ofaborigines commonly referred to as Inuit.
Indian Register
Indian Register 5. (I) There shal1 be maintained in theDepartment an Indian Register in which shal1be recorded the name of every person who is
- 44 -
entitled to be registered as an Indian under thisAct.
Ellistingindian (2) The names in the Indian RegisterRegister immediately prior to April 17, 1985 shall con
stitute the Indian Register on April 17, 1985.
Deletions and (3) The Registrar may at any time add to oradditions delete from the Indian Register the name of
any person who, in accordance with this Act, isentitled or not entitled, as the case may be, tohave his name included in the Indian Register.
Date of change (4) The Indian Register shall indicate thedate on which each name was added thereto ordeleted therefrom.
Application for (5) The name of a person who is entitled !oregistration be registered is not required to be r.eco~ded m
the Indian Register unless an apphcatlon forregistration is made to the Registrar. R.S., c.1-6, s. 5; 1985, c. 27, s. 4.
Persons entitled 6. (I) Subject to section 7, a person is en·to be registered titled to be registered if
(a) that person was registered or entitled tobe registered immediately prior to April 17,1985;(b) that person is a member of a body ofpersons that has been declared ?y the Governor in Council on or after April 17, 1985 tobe a band for the purposes of this Act;(c) the name of that person was omitted ordeleted from the Indian Register, or from aband list prior to September 4, 1951, undersubparagraph 12( 1)(a)(iv), paragraph12(1)(b) or subsection 12(2) or under subparagraph 12( 1)(a)(iii) pursuant to an ord~r
made under subsection 109(2), as each provIsion read immediately prior to April 17,1985, or under any former provision of thisAct relating to the same subject-matter asany of those provisions;(d) the name of that person was omitted ordeleted from the Indian Register, or from aband list prior to September 4, 1951, undersubparagraph 12( I )(a)(iii) pursuant to anorder made under subsection I09( 1), as eachprovision read immediately prior to April 17,1985, or under any former provision of thisAct relating to the same subject-matter asany of those provisions;(e) the name of that person was omitted ordeleted from the Indian Register, or from aband list prior to September 4, 1951,
Idem
Deemingprovision
Penons notentitled to berqiltered
(i) under section 13, as it read immediateIy prior to September 4, 1951, or unde.any former provision of this Act relating tothe same subject-matter as that section, or(ii) under section III, as it read immedi·ately prior to July I, 1920, or under anyformer provision of this Act relating to thesame subject-matter as that section; or
(j) that person is a person both of whoseparents are or, if no longer living, were at thetime of death entitled to be registered underthis section.
(2) Subject to section 7, a person is entitledto be registered if that person is a person one ofwhose parents is or, if no longer living, was atthe time of death entitled to be registered undersubsection (I).
(3) For the purposes of paragraph (l)(j) andsubsection (2),
(a) a person who was no longer livingimmediately prior to April 17, 1985 but whowas at the time of death entitled to be registered shall be deemed to be entitled to b,registered under paragraph (I)(a); and(b) a person described in paragraph (l)(c),(d) or (e) who was no longer living on April11, 1985 shall be deemed to be entitled to beregistered under that paragraph. R.S., c. 1-6,s. 6; 1985, c. 27, s. 4.
7. (I) The following persons are not entitledto be registered:
(a) a person who was registered under paragraph 11 (1 )(j), as it read immediately priorto April 17, 1985, or under any former provision of this Act relating to the same subjectmatter as that paragraph, and whose namewas subsequently omitted or deleted from theIndian Register under this Act; or(b) a person who is the child of a person whowas registered or entitled to be registeredunder paragraph II (I )(/). as it read immediately prior to April 17. 1985, or under anyformer provision of this Act relating to thesame subject-matter as that paragraph. andis also the child of a person who is notentitled to be registered.
- 45 -
Band control ofmembership
)
)
Ellc:cption
Idem
Band Lists
Band Listsmaintained inDepartment
Ellisting Bandlists
Deletions andadditions
Date of change
Application forentry
(2) Paragraph (I )(a) does not apply inrespect of a female person who was, at any timeprior to being registered under paragraphII (I )(j), entitled to be registered under anyother provision of this Act.
(3) Paragraph (I)(b) does not apply inrespect of the child of a female person who was,at any time prior to being registered underparagraph II (I )(j), entitled to be registeredunder any other provision of this Act. R.S., c.1-6, s. 7; 1985, c. 27, s. 4.
Band Lists
8. There shall be maintained in accordancewith this Act for each band a Band List inwhich shall be entered the name of everyperson who is a member of that band. R.S., c.1-6, s. 8; 1985, c. 27, s. 4.
9. (1) Until such time as a band assumescontrol of its Band List, the Band List of thatband shall be maintained in the Department bythe Registrar.
(2) The names in a Band List of a bandimmediately prior to April 17, 1985 shall constitute the Band List of that band on April 17,1985.
(3) The Registrar may at any time add to ordelete from a Band List maintained in theDepartment the name of any person who, inaccordance with this Act, is entitled or notentitled, as the case may be, to have his nameincluded in that List.
(4) A Band List maintained in the Department shall indicate the date on which eachname was added thereto or deleted therefrom.
(5) The name of a person who is entitled tohave his name entered in a Band List maintained in the Department is not required to beentered therein unless an application for entrytherein is made to the Registrar. R.S., c. 1-6, s.9; 1974-75-76, c. 48, s. 25; 1978-79, c. II, s. 10;1985, c. 27, s. 4.
10. (1) A band may assume control of itsown membership if it establishes membershiprules for itself in writing in accordance withthis section and if, after the band has givenappropriate notice of its intention to assume
Membershiprilles
By-law
Acqllired rights
Idem
Notic:c to theMinister
Notice to bandand copy ofBand List
control of its own membership, a majority ofthe electors of the band gives its consent to theband's control of its own membership.
(2) A band may, pursuant to the consent of amajority of the electors of the band,
(a) after it has given appropriate notice ofits intention to do so, establish membershiprules for itself; and(b) provide for a mechanism for reviewingdecisions on membership.
(3) Where the council of a band makes aby-law under paragraph 81(l)(p.4) bringingthis subsection into effect in respect of theband. the consents required under subsections(I) and (2) shall be given by a majority of themembers of the band who are of the full age ofeighteen years.
(4) Membership rules established by a bandunder this section may not deprive any personwho had the right to have his name entered inthe Band List for that band, immediately priorto the time the rules were established, of theright to have his name so entered by reasononly of a situation that existed or an action thatwas taken before the rules came into force.
(5) For greater certainty, subsection (4)applies in respect of a person who was entitledto have his name entered in the Band Listunder paragraph II (I )(e) immediately beforethe band assumed control of the Band List ifthat person does not subsequently cease to beentitled to have his name entered in the BandList.
(6) Where the conditions set out in subsection (1) have been met with respect to a band,the council of the band shall forthwith givenotice to the Minister in writing that the bandis assuming control of its own membership andshall provide the Minister with a copy of themembership rules for the band.
(7) On receipt of a notice from the council ofa band under subsection (6), the Minister shall,if the conditions set out in subsection (I) havebeen complied with. forthwith
(a) give notice to the band that it has controlof its own membership; and(b) direct the Registrar to provide the bandwith a copy of the Band List maintained inthe Department.
- 46 -
Effectivc datcof band'smcmbershiprules
Band tomaintain BandList
Deletions andadditions
Dale of change
Membershiprules fOfDepartmentalBand List
Additionalmembershiprules forDepartmcntalBand List
(8) Where a band assumes control of itsmembership under this section. the membershiprules established by the band shall have effectfrom the day on which notice is given to theMinister under subsection (6). and any additions to or deletions from the Band List of theband by the Registrar on or after that day areof no effect unless they are in accordance withthe membership rules established by the band.
(9) A band shall maintain its own Band Listfrom the date on which a copy of the Band Listis received by the band under paragraph (7)(b),and, subject to section 13.2. the Departmentshall have no further responsibility with respectto that Band List from that date.
(10) A band may at any time add to ordelete from a Band List maintained by it thename of any person who, in accordance withthe membership rules of the band, is entitled ornot entitled. as the case may be, to have hisname included in that list.
(11) A Band List maintained by a band shallindicate the date on which each name wasadded thereto or deleted therefrom. R.S., c. 1·6.s. 10; 1985, c. 27, s. 4.
11. (1) Commencing on April 17. 1985. aperson is entitled to have his name entered in aBand List maintained in the Department for aband if
(a) the name of that person was entered inthe Band List for that band, or that personwas entitled to have his name entered in theBand List for that band, immediately priorto April 17, 1985;(b) that person is entitled to be registeredunder paragraph 6(1)(b) as a member ofthat band;(c) that person is entitled to be registeredunder paragraph 6( 1)(e) and ceased to be amember of that band by reason of the circumstances set out in that paragraph; or(d) that person was born on or after April17, 1985 and is entitled to be registeredunder paragraph 6( 1)(j) and both parents ofthat person are entitled to have their namesentered in the Band List or, if no longerliving. were at the time of death entitled tohave their names entered in the Band List.
(2) Commencing on the day that is two yearsafter the day that an Act entitled An Act to
Deemingprovision
Where bandamalgamates Ofis divided
Entitlementwith consent ofband
amend the Indian Act. inlroduced in the Housfof Commons on February 28. 19l15, is assente(.to, or on such earlier day as may be agreed 10under seclion 13.1. where a band does not havecontrol of its Band List under this Act. a personis entitled to have his name entered in a BandList maintained in the Department for theband
(a) if that person is entitled 10 be registeredunder paragraph 6( 1)(d) or (e) and ceased tobe a member of that band by reason of thecircumstances set out in that paragraph; or(b) if that person is entitled to be registeredunder paragraph 6( I)(j) or subsection 6(2)and a parent referred to in that provision isentitled to have his name entered in the BandList or. if no longer living, was at the time ofdeath entitled to have his name entered inthe Band List.
(3) For the purposes of paragraph (1)(d) andsubsection (2). a person whose name was omitted or deleted from the Indian Register or aband list in the circumstances set out in paragraph 6(I)(c), (d) or (e) who was no longerliving on the first day on which he wouldotherwise be entitled to have his name enteredin the Band List of the band of which he ceasedto be a member shall be deemed to be entitledto have his name so entered.
(4) Where a band amalgamates with anothelband or is divided so as to constitute newbands, any person who would otherwise havebeen entitled to have his name entered in theBand List of that band under this section isentitled to have his name entered in the BandList of the amalgamated band or the new bandto which he has the closest family ties, as thecase may be. R.S., c. 1-6, s. 11; 1985, c. 27, s. 4.
12. Commencing on the day that is twoyears after the day that an Act entitled An Actto amend the Indian Act, introduced in theHouse of Commons on February 28. 1985, isassented to. or on such earlier day as may beagreed to under section 13.1, any person who
(a) is entitled to be registered under section6, but is not entitled to have his nameentered in the Band List maintained in theDepartment under section II, or(b) is a member of another band.
is entitled 10 have his name entered in the BandList maintained in the Department for a band
- 47 -
)
)
Limitation toone Band List
Decision toleave Band Listcontrol withDepartment
Notice to theMinister
Subsequentband control ofmembenhip
Retumofcontrol toDepartment
if the council of the admitting band consents.R.S., c. 1-6, s. 12; '1985, c. 27, s. 4.
13. Notwithstanding sections II and 12, noperson is entitled to have his name entered .atthe same time in more than one Band Listmaintained in the Department. R.S., c. 1-6, s.13; 1985, c. 27, s. 4.
13.1 (I) A band may, at any time prior tothe day that is two years after the day that anAct entitled An Act to amend the Indian Act,introduced in the House of Commons on February 28, 1985, is assented to, decide to leavethe control of its Band List with the Department if a majority of the electors of the bandgives its consent to that decision.
(2) Where a band decides to leave the control of its Band List with the Department undersubsection (1), the council of the band shallforthwith give notice to the Minister in writingto that effect.
(3) Notwithstanding a decision under subsection (1), a band may, at any time after thatdecision is taken, assume control of its BandList under section 10. 1985, c. 27, s. 4.
13.2 (l) A band may, at any time afterassuming control of its Band List under section10, decide to return control of the Band List tothe Department if a majority of the electors ofthe band gives its consent to that decision.
Entitlementretained
Copy of BandLilt provided toband counc:il
List ofadditions anddeletions
Lists to bepoIted
13.3 A person is entitled to have his nameentered in a Band List maintained in theDepartment pursuant to section 13,2 if thatperson was entitled to have his name entered.and his name was entered, in the Band Listimmediately before a copy of it was provided tothe Minister under subsection 13.2(2), whetheror not that person is also entitled to have hisname entered in the Band List under section11. 1985, c. 27, s. 4.
Notice of Band Lists
14. (1) Within one month after the day anAct entitled An Act to amend the Indian Act,introduced in the House of Commons on February 28, 1985, is assented to, the Registrarshall provide the council of each band with acopy of the Band List for the band as it stoodimmediately prior to that day.
(2) Where a Band List is maintained by theDepartment, the Registrar shall, at least onceevery two months after a copy of the Band Listis provided to the council of a band undersubsection (1), provide the council of the bandwith a list of the additions to or deletions fromthe Band List not included in a list previouslyprovided under this subsection.
(3) The council of each band shall, forthwithon receiving a copy of the Band List undersubsection (1), or a list of additions to anddeletions from its Band List under subsection(2), post the copy or the list, as the case maybe, in a conspicuous place on the reserve of theband. R.S., c. 1-6, s. 14; 1985, c. 27, s. 4.
Notice to theMinister andcopy of
- membenhiprules
Tnnsferofresponsibility toDepartment
(2) Where a band decides to return controlof its Band List to the Department under subsection (l), the council of the band shall forthwith give notice to the Minister in writing tothat effect and shall provide the Minister witha copy of the Band List and a copy of all themembership rules that were established by theband under subsection 10(2) while the bandmaintained its own Band List.
(3) Where a notice is given under subsection(2) in respect of a Band List, the mai~t~~ance
of that Band List shall be the responslblhty ofthe Department from the date on which thenotice is received and from that time the BandList shall be maintained in accordance with themembership rules set out in section 11. 1985, c.27, s. 4.
Inquiriesrelatins toIndian Resisteror Band Lists
Protests
Inquiries
14.1 The Registrar shall, on inquiry fromany person who believes that he or any personhe represents is entitled to have his nameincluded in the Indian Register or a Band Listmaintained in the Department, indicate to theperson making the inquiry whether or not thatname is included therein. 1985, c. 27, s. 4.
Protests
14.2 (l) A protest may be made in respect ofthe inclusion or addition of the name of aperson in, or the omission or deletion of thename of a person from. the Indian Register, ora Band List maintained in the Department,within three years after the inclusion or addition, or omission or deletion, as the case may
Protcst inrespect of BandList
PrOtest inrespect ofIndian Rcgister
Onus of proof
Rcgistrar tocauseinvcstigation
Evidcnce
Decision final
Appeal
Copy of noticeof appeal to theRcgistrar
Material to befiled with thccourt byRcgistrar
be, by notice in writing to the Registrar, conetaining a brief statement of the groundstherefor.
(2) A protest may be made under this sectionin respect of the Band List of a band by thecouncil of the band, any member of the band orthe person in respect of whose name the protestis made or his representative.
(3) A protest may be made under this sectionin respect of the Indian Register by ~he personin respect of whose name the protest IS made orhis representative.
(4) The onus of establishing the grounds of aprotest under this section lies on the personmaking the protest.
(5) Where a protest is made to the ~egis!rar
under this section, he shall cause an lOveStlgaetion to be made into the matter and render adecision.
(6) For the purposes of this section, theRegistrar may receive such evidence on oath,on affidavit or in any other manner, whether ornot admissible in a court of law, as in hisdiscretion he sees fit or deems just.
(7) Subject to section 14.3, the decision ofthe Registrar under subsection (5) is final andconclusive. 1985, c. 27, s. 4.
14.3 (I) Within six months after the Regisetrar renders a decision on a protest under section 14.2,
(a) in the case of a protest in respect of theBand List of a band, the council of the band,the person by whom the protest was made, orthe person in respect of whose name theprotest was made or his representative, or(b) in the case of a protest in respect of theIndian Register, the person in respect ofwhose name the protest was made or hisrepresentative,
may, by notice in writing, appeal the decisionto a court referred to in subsection (5).
(2) Where an appeal is taken under thissection, the person who takes the appeal shallforthwith provide the Registrar with a copy ofthe notice of appeal.
(3) On receipt of a copy of a notice of appealunder subsection (2), the Registrar shall forthwith file with the court a copy of the decisionbeing -appealed together with all documentary
- 48 -
Coun
Commutationafpaymcntaunder formerAct
evidence considered in arriving at that decisionand any recording or transcript of any oralproceedings related thereto that were heldbefore the Registrar.
(4) The court may, after hearing an appealunder this section,
(a) affirm, vary or reverse the decision ofthe Registrar; or(b) refer the subject-matter of the appealback to the Registrar for reconsideration orfurther investigation.
(5) An appeal may be heard under thissection
(a) in the Province of Prince Edward Island,the Yukon Territory or the Northwest Territories, before the Supreme Court;(b) in the Province of New Brunswick,Manitoba, Saskatchewan or Alberta, beforethe Court of Queen's Bench;(c) in the Province of Quebec, before theSuperior Court for the district in which theband is situated or in which the person whomade the protest resides, or for such otherdistrict as the Minister may designate; or(d) in any other province, before the countyor district court of the county or district inwhich the band is situated or in which theperson who made the protest resides, or of .such other county or district as the Ministermay designate. 1985, c. 27, s. 4.
Payments in Respect of Persons Ceasing to beBand Members
IS. (1) to (4) [Repealed, 1985, c. 27, s. 5]
(5) Where, prior to the 4th day of September, 1951, any woman became entitled, undersection 14 of the Indian Act, chapter 98 of theRevised Statutes of Canada, 1927, or any priorprovisions to the like effect, to share in thedistribution of annuities, interest moneys orrents, the Minister may, in lieu thereof, pay tosuch woman out of the moneys of the band anamount equal to ten times the average annualamounts of such payments made to her duringthe ten years last preceding or, if they werepaid for less than ten years, during the yearsthey were paid. R.S., c. 1·6, s. IS; 1985, c. 27, s.5.
16. (I) [Repealed, 1985, c. 27, s. 6]
- 49 -
) Transferredmember'sinterest
)
Minister mayconstitute newbands
Division ofreserves andfunds
No protest
Reserves to beheld for use andbenefit ofIndians
(2) A person who ceases to be a member ofone band by reason of his becoming a memberof another band is not entitled to any interest inthe lands or moneys held by Her Majesty onbehalf of the former band, but he is entitled tothe same interest in common in lands andmoneys held by Her Majesty on behalf of thelatter band as other members of that band.R.S., c. 1-6, s. 16; 1985, c. 27, s. 6.
(3) [Repealed, 1985, c. 27, s. 6]
New Bands
17. (1) The Minister may, whenever he con-siders it desirable,
(a) amalgamate bands that, by a vote of amajority of their electors, request to be amalgamated; and(b) constitute new bands and establish BandLists with respect thereto from existing BandLists, or from the Indian Register, if requested to do so by persons proposing to form thenew bands.
(2) Where pursuant to subsection (1) a newband has been established from an existingband or any part thereof, such portion of thereserve lands and funds of the existing band asthe Minister determines shall be held for theuse and benefit of the new band.
(3) No protest may be made under section14.2 in respect of the deletion from or theaddition to a Band List consequent on theexercise by the Minister of any of his powersunder subsection ( I). R.S., c. 1-6, s. 17; 1985, c.27. s. 7.
RESERVES
18. (1) Subject to this Act, reserves are heldby Her Majesty for the use and benefit of therespective bands for which they were set apart;and subject to this Act and to the terms of anytreaty or surrender, the Governor in Councilmay determine whether any purpose for whichlands in a reserve are used or are to be used isfor the use and benefit of the band.
Use of reservesfor schools. etc.
Children ofband memben
Surveys andsubdivisions
Possession oflands in areserve
Certificate ofPossession
Location ticketsissued underpreviouslegislation
(2) The Minister may authorize the use. oflands in a reserve for the purpose of Indianschools, the administration of Indian affairs.Indian burial grounds. Indian health projectsor, with the consent of the council of the band.for any other purpose for the general welfare ofthe band, and may take any lands in a reserverequired for such purposes. but where anindividual Indian, immediately prior to suchtaking, was entitled to the possession of su~h
lands, compensation for such use shall be paidto the Indian, in such amount as may be agreedbetween the Indian and the Minister, or, failingagreement, as may be determined in suchmanner as the Minister may direct. R.S., c.149, s. 18; 1956, c. 40, s. 8.
18.1 A member of a band who resides on thereserve of the band may reside there with hisdependent children or any children of whom hehas custody. 1985, c. 27, s. 8.
19. The Minister may(a) authorize surveys of reserves and thepreparation of plans and reports with respectthereto;(b) divide the whole or any portion of areserve into lots or other subdivisions; and(c) determine the location and direct theconstruction of roads in a reserve. R.S., c.149,s.19.
POSSESSION OF LANDS IN RESERVES
20. (1) No Indian is lawfully in possession ofland in a reserve unless, with the approval ofthe Minister, possession of the land has beenallotted to him by the council of the band.
(2) The Minister may issue to an Indian whois lawfully in possession of land in a reserve acertificate to be called a Certificate of Possession, as e~idence of his right to possession ofthe land described therein.
(3) For the purposes of this Act, any personwho, on the 4th day of September, 1951. held avalid and subsisting Location Ticket issuedunder The Indian Act. /880. or any statuterelating to the same subject-matter, shall bedeemed to be lawful1y in possession of the landto which the location ticket relates and to holda Certificate of Possession with respect thereto.
- 50 -
Temporarypossession
Certificate ofOccupation
Extension andapproval
Register
Improvementson lands
Compensationfor improvements
(4) Where possession of land in a reserve hasbeen allotted to an Indian by the council of theband. the Minister may. in his discretion. withhold his approval and may authorize the Indianto occupy the land temporarily and may prescribe the conditions as to use and settlementthat are to be fulfilled by the Indian before theMinister approves of the allotment.
(5) Where the Minister withholds approvalpursuant to subsection (4), he shall issue aCertificate of Occupation to the Indian. andthe Certificate entitles the Indian. or thoseclaiming possession by devise or descent, tooccupy the land in respect of which it is issuedfor a period of two years from the date thereof.
(6) The Minister may extend the term of aCertificate of Occupation for a further periodnot exceeding two years. and may. at the expiration of any period during which a Certificateof Occupation is in force
(a) approve the allotment by the council ofthe band and issue a Certificate of Possessionif in his opinion the conditions as to use andsettlement have been fulfilled: or(b) refuse approval of the allotment by thecouncil of the band and declare the land inrespect of which the Certificate of Occupation was issued to be available for reallotment by the council of the band. R.S.• c.149. s. 20.
21. There shall be kept in the Department aregister. to be known as the Reserve LandRegister. in which shall be entered particularsrelating to Certificates of Possession and Certificates of Occupation and other transactionsrespecting lands in a reserve. R.S .• c. 149. s. 21.
21. Where an Indian who is in possession oflands at the time they are included in a reserve.made permanent improvements thereon beforethat time, he shall be deemed to be in lawfulpossession of such lands at the time they are soincluded. R.S.• c. 149, s. 22.
23. An Indian who is lawfully removed fromlands in a reserve upon which he has madepermanent improvements may, if the Ministerso directs, be paid compensation in respectthereof in an amount to be determined by theMinister, either from the person who goes into
Transfer ofpossession
Indian ceasingto reside onreserve
When right ofpossessionreverts
Correction ofCertificate orLocationTickets
Cancellation ofCertificates orLocationTickets
Grants. etc. ofreserve landsvoid
pos~ession or from the funds of the band. at th"discretion of the Minister. R.S., c. 149. s. 23.
24. An Indian who is lawfully in possessionof lands in a reserve may transfer to the bandor to another member of the band the right topossession of the land, but no transfer or agreement for the transfer of the right to possessionof lands in a reserve is effective until it isapproved by the Minister. R.S., c. 149, s. 24.
25. (I) An Indian who ceases to be entitledto reside on a reserve may, within six months orsuch further period as the Minister may direct,transfer to the band or another member of theband the right to possession of any lands in thereserve of which he was lawfully in possession.
(2) Where an Indian does not dispose of hisright of possession in accordance with subsection (1), the right to possession of the landreverts to the band, subject to the payment tothe Indian who was lawfully in possession ofthe land, from the funds of the band, of suchcompensation for permanent improvements asthe Minister may determine. R.S., c. 149, s. 25.
26. Whenever a Certificate of Possession orOccupation or a Location Ticket issued undrThe Indian Act, 1880, or any statute relating t..the same subject-matter was, in the opinion ofthe Minister, issued to or in the name of thewrong person, through mistake, or contains anyclerical error or misnomer, or wrong description of any material fact therein, the Ministermay cancel the Certificate or Location Ticketand issue a corrected Certificate in lieu thereof.1956, c. 40, s. 9.
27. The Minister may, with the consent ofthe holder thereof, cancel any Certificate ofPossession or Occupation or Location Ticketreferred to in section 26, and may cancel anyCertificate of Possession or Occupation orLocation Ticket that in his opinion was issuedthrough fraud or in error. 1956, c. 40, s. 9.
28. (1) Subject to subsection (2), a deed,·lease, contract. instrument, document or agreement of any kind whether written or oral. bywhich a band or a member of a band purportsto permit a person other than a member of thatband to occupy or use a reserve or to reside or
- 51 -
Minister mayissue permits
Exemptionfrom seizure
Penalty fortrespass
Information byAttorney
) General
Informationdeemed actionby Crown
Existingremediespreserved
otherwise exercise any rights on a reserve isvoid.
(2) The Minister may by permit in writingauthorize any person for a period not exceedingone year, or with the consent of the council ofthe band for any longer period, to occupy or usea reserve or to reside or otherwise exerciserights on a reserve. R.S., c. 149, s. 28; 1956, c.40, s. 10.
29. Reserve lands are not subject to seizureunder legal process. R.S., c. 149, s. 29.
TRESPASS ON RESERVES
30. A person who trespasses on a reserve isguilty of an offence and is liable on summaryconviction to a fine not exceeding fifty dollarsor to imprisonment for a term not exceedingone month, or to both. R.S., c. 149, s. 30.
31. (1) Without prejudice to section 30,where an Indian or a band alleges that personsother than Indians are or have been
(a) unlawfully in occupation or possessionof,(b) claiming adversely the right to occupation or possession of, or(c) trespassing upon
a reserve or part of a reserve, the AttorneyGeneral of Canada may exhibit an Informationin the Federal Court of Canada claiming, onbehalf of the Indian or the band, the relief orremedy sought.
(2) An Information exhibited under subsection (1) shall, for all purposes of the FederalCourt Act, be deemed to be a proceeding by theCrown within the meaning of that Act.
(3) Nothing in this section shall be construedto impair, abridge or otherwise affect any rightor remedy that, but for this section, would beavailable to Her Majesty or to an Indian or aband. R.S., c. 1-6, s. 31; R.S., c. 10(2nd Supp.),s.65.
Sale or barterof pioduce
Exemption
Offence
Roads, bridges.etc.
Idem
Taking of landsby localauthorities
SALE OR BARTER OF PRODUCE
32. (I) A transaction of any kind whereby aband or a member thereof purports to sell,barter, exchange, give or otherwise dispose ofcattle or other animals, grain or hay, whetherwild or cultivated, or root crops or plants ortheir products from a reserve in Manitoba,Saskatchewan or Alberta, to a person otherthan a member of that band, is void unless thesuperintendent approves the transaction inwriting.
(2) The Minister may at any time by orderexempt a band and the members thereof or anymember thereof from the operation of this section, and may revoke any such order. R.S., c.149, s. 32.
33. Every person who enters into a transaction that is void under subsection 32(1) isguilty of an offence. R.S., c. 149, s. 33.
ROADS AND BRIDGES
34. (1) A band shall ensure that the roads,bridges, ditches and fences within the reserveoccupied by that band are maintained inaccordance with instructions issued from timeto time by the superintendent.
(2) Where, in the opinion of the Minister, aband has not carried out the instructions of thesuperintendent given under subsection (1), theMinister may cause the instructions to be carried out at the expense of the band or anymember thereof and may recover the costthereof from any amounts that are held by HerMajesty and are payable to the band or suchmember. R.S., c. 149, s. 34.
LANDS TAKEN FOR PUBLIC PURPOSES
35. (1) Where by an Act of the Parliamentof Canada or a provincial legislature, HerMajesty in right of a province, a municipal orlocal authority or a corporation is empoweredto take or to use lands or any interest thereinwithout the consent of the owner, the powermay, 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 anyinterest therein.
- 52 -
Procedure
Grant in lieu ofcompulsorytaking
Payment
Reserves notvested in theCrown
No sale etc:..until surrender
Band maysurrender
Absolute orqualified
How surrendermade
(2) Unless the Governor in Council otherwisedirects, all matters relating to compulsorytaking or using of lands in a reserve undersubsection (I) are governed by the statute bywhich the powers are conferred.
(3) Whenever the Governor in Council hasconsented to the exercise by a province, author~ity or corporation of the powers referred to insubsection (1), the Governor in Council may, inlieu of the province, authority or corporationtaking or using the lands without the consent ofthe owner, authorize a transfer or grant of suchlands to the province, authority or corporation,subject to any terms that may be prescribed bythe Governor in Council.
(4) Any amount that is agreed upon orawarded in respect of the compulsory taking orusing of land under this section or that is paidfor a transfer or grant of land pursuant to thissection shall be paid to the Receiver Generalfor the use and benefit of the band or for theuse and benefit of any Indian who is entitled tocompensation or payment as a result of theexercise of the powers referred to in subsection(1). R.S., c. 149, s. 35.
SPECIAL RESERVES
36. Where lands have been set apart for theuse and benefit of a band and legal title theretois not vested in Her Majesty, this Act applies asthough the lands were a reserve within themeaning of this Act. R.S., c. 149, s. 36.
SURRENDERS
37. Except where this Act otherwise provides, lands in a reserve shall not be sold,alienated, leased or otherwise disposed of untilthey have been surrendered to Her Majesty bythe band for whose use and benefit in commonthe reserve was set apart. R.S., c. 149, s. 37.
38. (I) A band may surrender to Her Majesty any right or interest of the band and itsmembers in a reserve.
(2) A surrender may be absolute or qualified,conditional or unconditional. R.S., c. 149, s. 38.
39, (I) A surrender is void unless
Minister maycall meeting orreferendum
Assent of band
Secret ballot
Oflic:ialsrequired
Cenific:ation ofsurrender
Effect ofsurrender
(a) it is made to Her Majesty:(b) it is assented to by a majurity of theelectors of the band
(i) at a general meeting of the band calledby the council of the band,(ii) at a special meeting of the band calledby the Minister for the purpose of considering a proposed surrender, or(iii) by a referendum as provided in theregulations; and
(e) it is accepted by the Governor inCouncil.
(2) Where a majority of the electors of aband did not vote at a meeting or referendumcalled pursuant to subsection (1) of this sectionor pursuant to section 51 of the Indian Act,chapter 98 of the Revised Statutes of Canada,1927, the Minister may, if the proposed surrender was assented to by a majority of the electors who did vote, call another meeting bygiving thirty days notice thereof or anotherreferendum as provided in the regulations.
(3) Where a meeting is called pursuant tosubsection (2) and the proposed surrender isassented to at the meeting or referendum by amajority of the electors voting, the surrendershall be deemed, for the purpose of this section,to have been assented to by a majority of th'electors of the band.
(4) The Minister may, at the request of thecouncil of the band or whenever he considers itadvisable, order that a vote at any meetingunder this section shall be by secret ballot.
(5) Every meeting under this section shall beheld in the presence of the superintendent orsome other officer of the Department designated by the Minister. R.S.• c. 149, s. 39; 1956,c. 40, s. II.
40. When a proposed surrender has beenassented to by the band in accordance withsection 39, it shall be certified on oath by thesuperintendent or other officer who attendedthe meeting and by the chief or a member ofthe council of the band, and shall then besubmitted to the Governor in Council foracceptance or refusal. R.S., c. 149, s. 40.
41. A surrender shall be deemed to conferall rights that are necessary to enable Her
- 53 -
PowenofMinister withrespect toproperty ofdeceasedIndians
Regulations
Application ofregulations
Particularpowen
Courts mayexercisejurisdictionwith consent ofMinister
Majesty to carry out the terms of the surren·der. R.S.• c. 149. s. 41.
DESCENT Of PROPERTY
42. (1) Unless otherwise provided in thisAct, all jurisdiction and authority in relation tomatters and causes testamentary. with respectto deceased Indians, is vested exclusively in theMinister, and shall be exercised subject to andin accordance with regulations of the Governorin Council.
(2) The Governor in Council may makeregulations for providing that a deceasedIndian who at the time of his death was inpossession of land in a reserve shall, in suchcircumstances and for such purposes as theregulations prescribe, be deemed to have beenat the time of his death lawfully in possessionof that land.
(3) Regulations made under this section maybe made applicable to estates of Indians whodied before, on or after the 4th day of September 1951. R.S., c. 149, s. 42; 1956, c. 40, s. 12.
43. Without restricting the generality of sec-tion 42, the Minister may
(a) appoint executors of wills and administrators of estates of deceased Indians, removethem and appoint others in their stead;(b) authorize executors to carry out theterms of the wills of deceased Indians;(c) authorize administrators to administerthe property of Indians who die intestate;(d) carry out the terms of wills of deceasedIndians and administer the property of Indians who die intestate; and(e) make or give any order. direction orfinding that in his opinion it is necessary ordesirable to make or give with respect to anymatter referred to in section 42. R.S., c. 149,s.43.
44. (1) The court that would have jurisdiction if the deceased were not an Indian may,with the consent of the Minister, exercise, inaccordance with this Act, the jurisdiction andauthority conferred upon the Minister by thisAct in relation to testamentary matters andcauses and any other powers, jurisdiction andauthority ordinarily vested in that court.
Minister mayrefer a matterto the court
Orden relatingto lands
Indians maymake wills
Form of will
Probate
Minister maydeclare willvoid
(2) The Minister may direct in any particular case that an application for the grant ofprobate of the will or letters of administrationshall be made to the court that would havejurisdiction if the deceased were not an Indian,and the Minister may refer to such court anyquestion arising out of any will or the administration of any estate.
(3) A court that is exercising any jurisdictionor authority under this section shall not withoutthe consent in writing of the Minister enforceany order relating to real property on a reserve.R.S., c. 149, s. 44.
WILLS
45. (1) Nothing in this Act shall be construed to prevent or prohibit an Indian fromdevising or bequeathing his property by will.
(2) The Minister may accept as a will anywritten instrument signed by an Indian inwhich he indicates his wishes or intention withrespect to. the disposition of his property uponhis death.
(3) No will executed by an Indian is of anylegal force or effect as a disposition of propertyuntil the Minister has approved the will or acourt has granted probate thereof pursuant tothis Act. R.S., c. 149, s. 45.
46. (1) The Minister may declare the will ofan Indian to be void in whole or in part if he issatisfied that
(a) the will was executed under duress orundue influence;(b) the testator at the time of execution ofthe will lacked testamentary capacity;(c) the terms of the will would impose hardship on persons for whom the testator had aresponsibility to provide;(d) the will purports to dispose of land in areserve in a manner contrary to the interestof the band or contrary to this Act;(e) the terms of the will are so vague, uncertain or capricious that proper administrationand equitable distribution of the estate of thedeceased would be difficult or impossible tocarry out in accordance with this Act; or(j) the terms of the will are against thepublic interest.
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Where willdeclared void
Appeal toFederal Court
Widow's share
Idem
Where childrennot provided for
(2) Where a will of an Indian is declared bythe Minister or by a court to be wholly void,the person executing the will shall be deemed tohave died intestate, and where the will is sodeclared to be void in part only, any bequest ordevise affected thereby, unless a contrary intention appears in the will, shall be deemed tohave lapsed. R.S., c. 149, s. 46.
APPEALS
47. (I) A decision of the Minister made inthe exercise of the jurisdiction or authorityconferred upon him by section 42, 43 or 46may, within two months from the date thereof,be appealed by any person affected thereby tothe Federal Court of Canada, if the amount incontroversy in the appeal exceeds five hundreddollars or if the Minister consents to an appeal.R.S., c. 1-6, s. 47; R.S., c. IO(2nd Supp.), ss.64.65.
(2) [Repealed, R.S., c. IO(2nd Supp.), s. 65]
DISTRIBUTION OF PROPERTY ON INTESTACY
48. (I) Where the net value of the estate ofan intestate does not, in the opinion of theMinister, exceed in value two thousand dollars,the estate shall go to the widow.
(2) Where the net value of the estate of anintestate, in the opinion of the Minister, is twothousand dollars or more, two thousand dollarsshall go to the widow, and the remainder shallgo as follows, namely:
(a) if the intestate left no issue, the remainder shal1 go to the widow,(b) if the intestate left one child, one-half ofthe remainder shall go to the widow, and(c) if the intestate left more than one child,one-third of the remainder shall go to thewidow,
and where a child has died leaving issue andsuch issue is alive at the date of the intestate'sdeath, the widow shal1 take the same share ofthe estate as if the child had been living at thatdate.
(3) Notwithstanding subsections (1) and (2),(a) where in any particular case the Minister is satisfied that any children of thedeceased will not be adequately provided for,he may direct that all or any part of the
Distribution toissue
Distribution tofather andmother
Distribution tobrothers. sistersand their issue
Nellt-of·kin
Distributionamongstnellt-of·kin
Degrees ofkindred
Descendantsand relativesborn afterintestate'sdeath
estate that would otherwise go to the widowshall go to the children; and(b) the Minister may direct that the widowshall have the right. during her widowhood.to occupy any lands on a reserve that wereoccupied by her deceased husband at thetime of his death.
(4) Where an intestate dies leaving issue hisestate shall be distributed, subject to the rightsof the widow, if any, per srirpes among suchissue.
(5) Where an intestate dies leaving no widowor issue his estate shal1 go to his father andmother in equal shares if both are living, but ifeither of them is dead the estate shall go to thesurvivor.
(6) Where an intestate dies leaving no widowor issue or father or mother his estate shal1 goto his brothers and sisters in equal shares, andif any brother or sister is dead the children ofthe deceased brother or sister shal1 take theshare their parent would have taken if living,but where the only persons entitled are childrenof deceased brothers and sisters, they shall takeper capita.
(7) Where an intestate dies leaving nowidow, issue, father, mother, brother or sister,and no children of any deceased brother orsister, his estate shal1 go to his next-of-kin.
(8) Where the estate goes to the next-of-kinit shall be distributed equally among the nextof-kin of equal degree of consanguinity to theintestate and those who legally represent them.but in no case shall representation be admittedafter brothers' and sisters' children, and anyinterest in land in a reserve shal1 vest in HerMajesty for the benefit of the band if thenearest of kin of the intestate is more remotethan a brother or sister.
(9) For the purposes of this section, degreesof kindred shal1 be computed by countingupward from the intestate to the nearestcommon ancestor and then downward to therelative, and the kindred of the half-blood shallinherit equal1y with those of the whole-blood inthe same degree.
(10) Descendants and relatives of theintestate begotten before his death but born
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thereafter shall inherit as if they had been born) in the lifetime of the intestate and had survived
him.
Estate not (11) All such estate as is not disposed of bydisposed of by will shall be distributed as if the testator hadwill
died intestate and had left no other estate.
No dower or (12) No widow is entitled to dower in the Approvalestate by land of her deceased husband dying intestate, requiredCU"esy
and no husband is entitled to an estate bycurtesy in the land of his deceased wife sodying, and there is no community of real orpersonal property situated on a reserve.
(13) and (14) [Repealed, 1985, c. 27, s. 9]
"Widow" includes "widower"
(15) This section applies in respect of anPowers ofMinister
intestate woman as it applies in respect of an lenerally
intestate male, and for the purposes of thissection the word "widow" includes "widower".
Pa"icular
Definition of (16) In this section, "child" includes a childpowers
"Child" born in or out of wedlock, a legally adoptedchild and a child adopted in accordance withIndian custom. R.S., c. 1-6, s. 48; 1985, c. 27,s.9.
Deviscc's 49. A person who claims to be entitled toentitlement possession or occupation of lands in a reserve
) by devise or descent shall be deemed not to bein lawful possession or occupation of that landuntil the possession is approved by the Minis-ter. R.S., c. 149, s. 49.
Non·resident of SO. (1) A person who is not entitled to residereserve on a reserve does not by devise or descent
acquire a right to possession or occupation ofland in that reserve.
Sale by (2) Where a right to possession or occupationsuperintendent of land in a reserve passes by devise or descent
to a person who is not entitled to reside on areserve, that right shall be offered for sale by Prope"yoff
the superintendent to the highest bidder among reserve
persons who are entitled to reside on the reserveand the proceeds of the sale shall be paid to thedevisee or descendant, as the case may be.
under subsection (2). the right shall revert tothe band free from any claim on the part of thedevisee or descendant. subject to the payment,at the discretion of the Minister. to the deviseeor descendant. from the funds of the band, ofsuch compensation for permanent improvements as the Minister may determine.
(4) The purchaser of a right to possession oroccupation of land under subsection (2) shallbe deemed not to be in lawful possession oroccupation of the land until the possession isapproved by the Minister. R.S., c. 149, s. 50.
MENTALLY INCOMPETENT INDIANS
51. (1) Subject to this section. all jurisdiction and authority in relation to the property ofmentally incompetent Indians is vested exclusively in the Minister.
(2) Without restricting the generality of sub-section (1), the Minister may
(a) appoint persons to administer the estatesof mentally incompetent Indians;(b) order that any property of a mentallyincompetent Indian shall be sold. leased, alienated, mortgaged, disposed of or otherwisedealt with for the purpose of
(i) paying his debts or engagements,(ii) discharging encumbrances on hisproperty,(iii) paying debts or expenses incurred forhis maintenance or otherwise for his benefit, or(iv) paying or providing for the expensesof future maintenance; and
(c) make such orders and give such directions as he considers necessary. to secure thesatisfactory management of the estates ofmentally incompetent Indians.
(3) The Minister may order that any property situated off a reserve and belonging to amentally incompetent Indian shall be dealt withunder the laws of the province in which theproperty is situated. R.S .• c. 149. s. 51.
Unsold landsrove" to band
(3) Where no tender is received within sixmonths or such further period as the Ministermay direct after the date when the right topossession or occupation is offered for sale
Prope"yofinfant children
GUARDIANSHIP
52. The Minister may administer or providefor the administration of any property to whichinfant children of Indians are entitled, and may
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appoint guardians for such purpose. R.S., c.149, s. 52.
or an assignment subsequently registered. R.S.,c. 149, s. 55.
Disposition ofsurrenderedlands
Grant whereoriginalpurf:hascr dead
Departmentalemployees
Assignments
-~ SurrenderCdLands Register
Conditionalassignment
Proof ofellCf:ution
Effed ofregistration
MANAGEMENT OF RESERVES ANDSURRENDERED LANDS
53. (I) The Minister or a person appointedby him for the purpose may manage, sell, leaseor .otherwise dispose of surrendered lands inaccordance with this Act and the terms of thesurrender.
(2) Where the original purchaser of surrendered lands is dead and the heir, assignee ordevisee of the original purchaser applies for agrant of the lands, the Minister may, uponreceipt of proof in such manner as he directsand requires in support of any claim for thegrant and upon being satisfied that the claimhas been equitably and justly established, al10wthe claim and authorize a grant to issueaccordingly.
(3) No person who is appointed to manage,sell, lease or otherwise dispose of surrenderedlands or who is an officer or servant of HerMajesty employed in the Department may,except with the approval of the Governor inCouncil, acquire directly or indirectly any interest in surrendered lands. R.S., c. 149, s. 53.
54. Where . surrendered lands have beenagreed to be sold or otherwise disposed of andletters patent relating thereto have not issued.or where surrendered lands have been leased,the purchaser, lessee or other person having aninterest in the surrendered lands may, with theapproval of the Minister, assign his interest inthe surrendered lands or a part thereof to anyother person. R.S., c. 149, s. 54.
55. (I) There shall be kept in the Department a register, to be known as the Surrendered Lands Register, in which shall be enteredparticulars in connection with any lease Orother disposition of surrendered lands by theMinister or any assignment thereof.
(2) A conditional assignment shall not beregistered.
(3) Registration of an assignment may berefused until proof of its execution has beenfurnished.
(4) An assignment registered under this section is valid against an unregistered assignment
Certifif:3te ofregistration
Regulations
Unc:ultivated Ofunused lands
56. Where an assignment is registered theft.shall be endorsed on the original copy thereof acertificate of registration signed by the Ministeror by an officer of the Department authorized by him to sign such certificates. R.S., c.149, s. 56.
57. The Governor in Council may makeregulations
(a) authorizing the Minister to grantlicences to cut timber on surrendered lands,or, with the consent of the council of theband, on reserve lands;(b) imposing terms, conditions and restrictions with respect to the exercise of rightsconferred by licences granted under paragraph (a);(c) providing for the disposition of surrendered mines and minerals underlying lands ina reserve;(d) prescribing the penalty not exceedingone hundred dollars or imprisonment for aterm of three months, or both, that may beimposed on summary conviction for violationof any regulation made under this section;and(e) providing for the seizure and forfeitureof any timber or minerals taken in violatio,.of any regulation made under this sectio.R.S., c. 149, s. 57.
58. (1) Where land in a reserve is uncultivated or unused, the Minister may, with theconsent of the council of the band,
(a) improve or cultivate such land andemploy persons therefor, and authorize anddirect the expenditure of so much of thecapital funds of the band as he considersnecessary for such improvement or cultivation including the purchase of such stock,machinery or material or for the employmentof such labour as the Minister considersnecessary;(b) where the land is in the lawful possessionof any individual, grant a lease of such landfor agricultural or grazing purposes or forany purpose that is for the benefit of theperson in possession; and(c) where the land is not in the lawfulpossession of any individual, grant for the
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)
)
Disttibution ofproceeds
Lease atrequest ofoccupant
Disposition ofgrass. timber,non·metallicsubstances. etc.
Adjustment ofcontracts
benefit of the band a lease of such land foragricultural or grazing purposes.
(2) Out of the proceeds derived from theimprovement or cultivation of lands pursuant toparagraph (I )(b). a reasonable rent shall bepaid to the individual in lawful possession ofthe lands or any part thereof. and the remainder of the proceeds shall be placed to the creditof the band. but if improvements are made onthe lands occupied by an individual, the Minister may deduct the value of such improvementsfrom the rent payable to such individual underthis subsection.
(3) The Minister may lease for the benefit ofany Indian upon his application for that purpose, the land of which he is lawfully in possession without the land being surrendered.
(4) Notwithstanding anything in this Act,the Minister may, without a surrender
(a) dispose of wild grass or dead or fallentimber, and(b) with the consent of the council of theband, dispose of sand, gravel, clay and othernon-metallic substances upon or under landsin a reserve, or, where such consent cannotbe obtained without undue difficulty ordelay, may issue temporary permits for thetaking of sand, gravel, clay and other nonmetallic substances upon or under lands in areserve, renewable only with the consent ofthe council of the band,
and the proceeds of such transactions shall becredited to band funds or shall be divided between the band and the individual Indians inlawful possession of the lands in such shares asthe Minister may determine. R.S., c. 149, s. 58;1956, c. 40, s. 14.
59. The Minister may, with the consent ofthe council of a band.
(a) reduce or adjust the amount payable toHer Majesty in respect of a sale, lease orother disposition of surrendered lands or alease or other disposition of lands in a reserveor the rate of interest payable thereon; and(b) reduce or adjust the amount payable tothe band by an Indian in respect of a loanmade to the Indian from band funds. R.S., c.149,s.59.
Control overlands
Withdrawal
Indian moneysto be held foruse and benefit
Interest
Capital andrevenue
Payments toIndians
Expenditure ofcapital moneyswith consent
60. (I) The Governor in Council may at therequest of a band grant to the band the right toexercise such control and management overlands in the reserve occupied by that band asthe Governor in Council considers desirable.
(2) The Governor in Council may at anytime withdraw from a band a right conferredupon the band under subsection (I). R.S.• c.149, s. 60.
MANAGEMENT OF INDIAN MONEYS
61. (I) Indian moneys shall be expendedonly for the benefit of the Indians or bands forwhose use and benefit in common the moneysare received or held, and subject to this Act andto the terms of any treaty or surrender, theGovernor in Council may determine whetherany purpose for which Indian moneys are usedor are to be used is for the use and benefit ofthe band.
(2) Interest upon Indian moneys held in theConsolidated Revenue Fund shall be allowed ata rate to be fixed from time to time by theGovernor in Council. R.S., c. 149, s. 61.
62. All Indian moneys derived from the saleof surrendered lands or the sale of capital assetsof a band shall be deemed to be capital moneysof the band and all Indian moneys other thancapital moneys shall be deemed to be revenuemoneys of the band. R.S., c. 149, s. 62.
63. Notwithstanding the FinancialAdministration Act, where moneys to which anIndian is entitled are paid to a superintendentunder any lease or agreement made under thisAct, the superintendent may pay the moneys tothe Indian. R.S.• c. 149. s. 63.
64. (I) With the consent of the council of aband, the Minister may authorize and directthe expenditure of capital moneys of the band
(a) to distribute per capita to the membersof the band an amount not exceeding fiftyper cent of the capital moneys of the bandderived from the sale of surrendered lands;(b) to construct and maintain roads, bridges,ditches and water courses on the reserves oron surrendered lands;(c) to construct and maintain outer boundary fences on reserves;
(d) to purchase land for use by the band as areserve or as an addition to a reserve;(e) to purchase for the band the interest of amember of the band in lands on a reserve;(j) to purchase livestock and farm implements, farm equipment, or machinery for theband;(g) to construct and maintain on or in connection with a reserve such permanentimprovements or works as in the opinion ofthe Minister will be of permanent value tothe band or will constitute a capitalinvestment;(h) to make to members of the band, for thepurpose of promoting the welfare of theband, loans not exceeding one-half of thetotal value of
(i) the chattels owned by the borrower,and(ii) the land with respect to which heholds or is eligible to receive a Certificateof Possession,
and may charge interest and take securitytherefor;(i) to meet expenses necessarily incidental tothe management of lands on a reserve, surrendered lands and any band property;U) to construct houses for members of theband, to make loans to members of the bandfor building purposes with or without security and to provide for the guarantee of loansmade to members of the band for buildingpurposes; and(k) for any other purpose that in the opinionof the Minister is for the benefit of the band.
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Additionallimitation
under paragraph 15( I )(a). as it read immediately prior to April 17. 1985. or under anyformer provision of this Act relating to thesame subject-matter as that paragraph. byreason of ceasing to be a member of a band inthe circumstances set out in paragraph 6( 1)(C),(d) or (e) is not entitled to receive an amountunder paragraph 64() )(a) until such time asthe aggregate of all amounts that he would, butfor this subsection, have received under paragraph 64( 1)(a) is equal to the amount by whichthe amount that he received under paragraph15( I )(a). as it read immediately prior to April17, 1985, or under any former provision of thisAct relating to the same subject-matter as thatparagraph, exceeds one thousand dollars, together with any interest thereon.
(2) Where the council of a band makes aby-law under paragraph 81 (I )(P.4) bringingthis subsection into effect, a person who hasreceived an amount that exceeds one thousanddollars under paragraph )5() )(a), as it readimmediately prior to April 17, 1985, or underany former provision of this Act relating to thesame subject-matter as that paragraph. byreason of ceasing to be a member of the bandin the circumstances set out in paragraph6( IHe), (d) or (e) is not entitled to receive an'benefit afforded to members of the band asindividuals as a result of the expenditure ofIndian moneys under paragraphs 64() )(b) to(k), subsection 66(1) or subsection 69(1) untilthe amount by which the amount so receivedexceeds one thousand dollars, together with anyinterest thereon, has been repaid to the band.
Expenditure ofcapital moneysin accordancewith by-laws
Limitation inrespect ofparagraphs6(1)(c). (d) and(e)
(2) The Minister may make expenditures outof the capital moneys of a band in accordancewith by-laws made pursuant to paragraph81 (I )(P.3) for the purpose of making paymentsto any person whose name was deleted from theBand List of the band in an amount not exceeding one per capita share of the capital moneys.R.S., c. (-6. s. 64; 1985, c. 27, s. 10.
64.1 (I) A person who has received anamount that exceeds one thousand dollars
Regulations
Expenditure ofcapital
(3) The Governor in Council may makeregulations prescribing the manner of determining interest for the purpose of subsections(I) and (2).1985, c. 27. s. II.
65. The Minister may pay from capitalmoneys
(a) compensation to an Indian in an amountthat is determined in accordance with thisAct to be payable to him in respect of landcompulsorily taken from him for band purposes; and(b) expenses incurred to prevent or suppressgrass or forest fires or to protect the propertyof Indians in cases of emergency. R.S .. c.149. s. 65.
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)
Expendilure ofrevenue moneyswith <:onsent ofband
Minister maydirectexpenditure
Idem
Expenditure ofrevenue moneyswith authorityof Minister
Rc<:overy ofcertainexpenses
66. (I) With the consent of the council of aband, the Minister may authorize and directthe expenditure of revenue moneys for anypurpose that in his opinion will promote thegeneral progress and welfare of the band or anymember of the band.
(2) The Minister may make expenditures outof the revenue moneys of the band to assistsick, disabled, aged or destitute Indians of theband and to provide for the burial of deceasedindigent members of the band and to providefor the payment of contributions under theUnemployment Insurance Act on behalf ofemployed persons who are paid in respect oftheir employment out of moneys of the band.
(2.1) The Minister may make expendituresout of the revenue moneys of a band in accordance with by-laws made pUr'suant to paragraph81 (1 )(P.3) for the purpose of making paymentsto any person whose name was deleted from theBand List of the band in an amount not exceeding one per capita share of the revenue moneys.
(3) The Minister may authorize the expenditure of revenue moneys of the band for all orany of the following purposes, namely:
(a) for the destruction of noxious weeds andthe prevention of the spreading or prevalenceof insects, pests or diseases that may destroyor injure vegetation on Indian reserves;(b) to prevent, mitigate and control thespread of diseases on reserves, whether or notthe diseases are infectious or communicable;(c) to provide for the inspection of premiseson reserves and the destruction, alteration orrenovation thereof;(d) to prevent overcrowding of premises onreserves used as dwellings;(e) to provide for sanitary conditions in private premises on reserves as well as in publicplaces on reserves; and(j) for the construction and maintenance ofboundary fences. R.S., c. 1-6, s. 66; 1985, c.27, s. 12.
67. Where money is expended by HerMajesty for the purpose of raising or collectingIndian moneys, the Minister may authorize the
Maintenance ordependants
Management orrevenue moneysby band
Regulations
Loans toIndians
recovery of the amount so expended from themoneys of the band. 1956, c. 40, s. 17.
68. Where the Minister is satisfied that anIndian
(a) has deserted his spouse or family withoutsufficient cause,(b) has conducted himself in such a manneras to justify the refusal of his spouse orfamily to live with him, or(c) has been separated by imprisonmentfrom his spouse and family,
the Minister may order that payments of anyannuity or interest money to which that Indianis entitled shall be applied to the support of thespouse or family or both the spouse and familyof that Indian. R.S., c. 1-6, s. 68; 1985, c. 27,s. 13.
69. (I) The Governor in Council may byorder permit a band to control, manage andexpend in whole or in part its revenue moneysand may amend or revoke any such order.
(2) The Governor in Council may makeregulations to give effect to subsection (I) andmay declare therein the extent to which thisAct and the Financial Administration Act shallnot apply to a band to which an order madeunder subsection (l) applies. R.S., c. 149, s. 68.
LOANS TO INDIANS
70. (1) The Minister of Finance may fromtime to time authorize advances to the Ministerout of the Consolidated Revenue Fund of suchsums of money as the Minister may require toenable him
(a) to make loans to bands, groups of Indians or individual Indians for the purchase offarm implements, machinery, livestock,motor vehicles, fishing equipment, seedgrain, fencing materials, materials to be usedin native handicrafts, any other equipment,and gasoline and other petroleum products,or for the making of repairs or the paymentof wages, or for the clearing and breaking ofland within reserves;(b) to expend or to lend money for the carrying out of cooperative projects on behalf ofIndians; or
- 60 ~
Rcgulations
Accounting
Rcpaymcnt
Limitation
Rcpon toParliamcnt
Ministcr mayoperatc farms
Application ofprofits
(c) to provide for any other matter prescribed by the Governor in Council.
(2) The Governor in Council may makeregulations to give effect to subsection (1).
(3) Expenditures that are made under subsection (1) shall be accounted for in the samemanner as public moneys.
(4) The Minister shall pay to the ReceiverGeneral all moneys that he receives frombands, groups of Indians or individual Indiansby way of repayments of loans made undersubsection (I).
(5) The total amount of outstandingadvances to the Minister under this sectionshall not at anyone time exceed six million andfifty thousand dollars.
(6) The Minister shall within fifteen daysafter the termination of each fiscal year or, ifParliament is not then in session, within fifteendays after the commencement of the next ensuing session, lay before Parliament a report setting out the total number and amount of loansmade under subsection (1) during that year.R.S., c. 149, s. 69; 1952-53, c. 41, s. 4; 1956, c.40, s. 18; 1968-69, c. 28, s. 105; 1969-70, c. 2,Sch. vote L50a. [See 1969-70, c. 24, Sch. voteL53b]
FARMS
71. (l) The Minister may operate farms onreserves and may employ such persons as heconsiders necessary to instruct Indians in farming and may purchase and distribute withoutcharge, pure seed to Indian farmers.
(2) The Minister may apply any profits thatresult from the operation of farms pursuant tosubsection (1) on reserves to extend farmingoperations on the reserves or to make loans toIndians to enable them to engage in farming orother agricultural operations or he may applysuch profits in any way that he considers to bedesirable to promote the progress and development of the Indians. R.S., c. 149, s. 70.
Treaty moncypayable out ofC.R.F.
Rcgulations
TREATY MONEY
72. Moneys that are payable to Indians or toIndian bands under a treaty between HerMajesty and the band and for the payment ofwhich the Government of Canada is responsible, may be paid out of the ConsolidatedRevenue Fund. R.S., c. 149, s. 71.
REGULATIONS
73. (1) The Governor in Council may makeregulations
(0) for the protection and preservation offur-bearing animals, fish and other game onreserves;(b) for the destruction of noxious weeds andthe prevention of the spreading or prevalenceof insects, pests or diseases that may destroyor injure vegetation on Indian reserves;(c) for the control of the speed, operationand parking of vehicles on roads withinreserves;(d) for the taxation, control and destructionof dogs and for the protection of sheep onreserves;(e) for the operation, supervision and controlof pool rooms, dance halls and other place~
of amusement on reserves;(j) to prevent, mitigate and control thespread of diseases on reserves, whether or notthe diseases are infectious or communicable;(g) to provide medical treatment and healthservices for Indians;(h) to provide compulsory hospitalizationand treatment for infectious diseases amongIndians;(i) to provide for the inspection of premiseson reserves and the destruction, alteration orrenovation thereof;U) to prevent overcrowding of premises onreserves used as dwellings;(k) to provide for sanitary conditions in private premises on reserves as well as in publicplaces on reserves;(/) for the construction and maintenance ofboundary fences; and(m) for empowering and authorizing thecouncil of a band to borrow money for bandprojects or housing purposes and providingfor the making of loans out of moneys soborrowed to members of the band for housing purposes.
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Penalty
Orders andregulations
Elected councils
Clmposition ofcouncil
Regulations
(2) The Governor in Council may prescribethe penalty. not exceeding a fine of one hundred dollars or imprisonment for a term notexceeding three months. or both. that may beimposed on summary conviction for violation ofa regulation made under subsection (I).
(3) The Governor in Council may makeorders and regulations to carry out the purposesand provisions of this Act. R.S.• c. 149. s. 72;1956. c. 40. s. 19.
ELECTIONS OF CHIEFS AND BAND COUNCILS
74. (I) Whenever he deems it advisable forthe good government of a band. the Ministermay declare by order that after a day to benamed therein the council of the band. consisting of a chief and councillors, shall be selectedby elections to be held in accordance with thisAct.
(2) Unless otherwise ordered by the Minister, the council of a band in respect of which anorder has been made under subsection (I) shallconsist of one chief, and one councillor foreveryone hundred members of the band, butthe number of councillors shall not be less thantwo nor more than twelve and no band shallhave more than one chief.
(3) The Governor in Council may, for thepurposes of giving effect to subsection (I),make orders or regulations to provide
(a) that the chief of a band shall be electedby
(i) a majority of the votes of the electorsof the band, or(ii) a majority of the votes of the electedcouncillors of the band from among themselves, but the chief so elected shall remaina councillor; and
(b) that the councillors of a band shall beelected by
(i) a majority of the votes of the electorsof the band. or(ii) a majority of the votes of the electorsof the band in the electoral section inwhich the candidate resides and that he
Electoralsections
Eligibility
Nomination
Regulationsgoverningelections
Secrecy ofvoting
Eligibility ofvoters for chief
proposes to represent on the council of theband.
(4) A reserve shall for voting purposes consist of one electoral section, except that wherethe majority of the electors of a band who werepresent and voted at a referendum or a specialmeeting held and called for the purpose inaccordance with the regulations have decidedthat the reserve should for voting purposes bedivided into electoral sections and the Ministerso recommends, the Governor in Council maymake orders or regulations to provide that thereserve shall for voting purposes be divided intonot more than six electoral sections containingas nearly as may be an equal number of Indianseligible to vote and to provide for the manner inwhich electoral sections so established shall bedistinguished or identified. R.S.• c. 149, s. 73;1956, c. 40, s. 20.
75. (I) No person other than an elector whoresides in a section may be nominated for theoffice of councillor to represent that section onthe council of the band.
(2) No person may be a candidate for election as chief or councillor unless his nominationis moved and seconded by persons who arethemselves eligible to be nominated. R.S., c.149, s. 74.
76. (1) The Governor in Council may makeorders and regulations with respect to bandelections and, without restricting the generalityof the foregoing, may make regulations withrespect to
(a) meetings to nominate candidates;(b) the appointment and duties of electoralofficers;(e) the manner in which voting shall be carried out;(d) election appeals; and(e) the definition of residence for the purpose of determining the eligibility of voters.
(2) The regulations made under paragraph(I He) shall make provision for secrecy ofvoting. R.S., c. 149, s. 75.
77. (I) A member of a band who hasattained the age of eighteen years and is ordinarily resident on the reserve is qualified tovote for a person nominated to be chief of theband and, where the reserve for voting purposes
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consists of one section. to vote for personsnominated as councillors.
Tenure of office 78. (1) Subject to this section, chiefs andcouncillors hold office for two years.
Councillor (2) A member of a band who is of the fullage of eighteen years and is ordinarily residentin a section that has been established for votingpurposes is qualified to vote for a person nomi~nated to be councillor to represent that section.R.S., c. 1·6. s. 77; 1985, c. 27, s. 14.
Disqualification (3) The Minister may declare a person whoceases to hold office by virtue of subparagraph(2)(b)(iii) to be ineligible to be a candidate forchief or councillor for a period not exceedingsix years.
Special election (4) Where the office of chief or councillorbecomes vacant more than three months beforethe date when another election would ordinarilybe held, a special election may be held inaccordance with this Act to fill the vacancy.R.S., c. 149, s. 77.
POWERS OF THE COUNCIL
81. (J) The council of a band may makeby~laws not inconsistent with this Act or withany regulation made by the Governor in Council or the Minister, for any or all of the follow·ing purposes, namely:
(a) to provide for the health of residents onthe reserve and to prevent the spreading ofcontagious and infectious diseases;(b) the regulation of traffic;(c) the observance of law and order;(d) the prevention of disorderly conduct andnuisances;(e) the protection against and prevention oftrespass by cattle and other domestic animals, the establishment of pounds, theappointment of pound-keepers, the regulation of their duties and the provision for feesand charges for their services;(j) the construction and maintenance ofwater courses, roads, bridges, ditches, fencesand other local works;(g) the dividing of the reserve or a portionthereof into zones and the prohibition of theconstruction or maintenance of any class ofbuildings or the carrying on of any class ofbusiness, trade or calling in any such zone;(h) the regulation of the construction, repairand use of buildings, whether owned by theband or by indIvidual members of the band;(i) the survey and allotment of reserve landsamong the members of the band and th<
(b) there was a violation of this Act thatmight have affected the result of the election;or(c) a person nominated to be a candidate inthe election was ineligible to be a candidate.R.S., c. 149, s. 78.
80. The Governor in Council may makeregulations with respect to band meetings andcouncil meetings and, without restricting thegenerality 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 theMinister at such meetings; and(d) the number of persons required at themeeting to constitute a quorum. R.S., c. 149,s.79.
By-laws
Regulationsrespecting bandand councilmeetings
79. The Governor in Council may set asidethe election of a chief or a councillor on thereport of the Minister that he is satisfied that
(a) there was corrupt practice in connectionwith the election;
GovemorinCounc:il may setaside election
Vacancy (2) The office of chief or councillor becomesvacant 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 officeby virtue of this Act; or
(b) the Minister declares that in his opinionthe person who holds that office
(i) is unfit to continue in office by reasonof his having been convicted of an offence,(ii) has been absent from meetings of thecouncil for three consecutive meetingswithout being authorized to do so, or(iii) was guilty, in connection with anelection, of corrupt practice, accepting abribe, dishonesty or malfeasance.
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establishment of a register of Certificates ofPossession and Certificates of Occupationrelating to allotments and the setting apartof reserve lands for common use, if authoritytherefor has been granted under section 60;U) the destruction and control of noxiousweeds;(k) the regulation of bee-keeping and poultry raising;(I) the construction and regulation of the useof public wel1s, cisterns, reservoirs and otherwater supplies;(m) the control and prohibition of publicgames, sports, races, athletic contests andother amusements;(n) the regulation of the conduct and activities of hawkers, peddlers or others who enterthe reserve to buy, sell or otherwise deal inwares or merchandise;(0) the preservation, protection and management of fur-bearing animals, fish and othergame on the reserve;
. (P) the removal and punishment of personstrespassing upon the reserve or frequentingthe reserve for prohibited purposes;(p.l) the residence of band members andother persons on the reserve;(p.2) to provide for the rights of spouses andchildren who reside with members of theband On the reserve with respect to anymatter in relation to which the council maymake by-laws in respect of members of theband;(p.3) to authorize the Minister to make payments out of capital or revenue moneys topersons whose names were deleted from theBand List of the band;(PA) to bring subsection 10(3) or 64.1(2)into effect in respect of the band;(q) with respect to any matter arising out ofor ancillary to the exercise of powers underthis section; and(r) the imposition on summary conviction ofa fine not exceeding one thousand dol1ars orimprisonment for a term not exceeding thirtydays, or both, for violation of a by-law madeunder this section.
Copies ofby-laws to besent to Minister
Effective dateof by-law
Money by·laws
(2) Where any by-law of a band is contravened and a conviction entered, in addition toany other remedy and to any penalty imposedby the by-law, the court in which the convictionhas been entered, and any court of competentjurisdiction thereafter, may make an order prohibiting the continuation or repetition of theoffence by the person convicted.
(3) Where any by-law of a band passed iscontravened, in addition to any other remedyand to any penalty imposed by the by-law, suchcontravention may be restrained by courtaction at the instance of the band council. R.S.,c. 1-6, s. 81; 1980-81-82-83, c. 47, s. 53; 1985,c. 27, ss. 15, 15.1.
82. (l) A copy of every by-law made underthe authority of section 81 shall be forwardedby mail by the chief or a member of the councilof the band to the Minister within four daysafter it is made.
(2) A by-law made under section 81 comesinto force forty days after a copy thereof isforwarded to the Minister pursuant to subsection (1), unless it is disal10wed by the Ministerwithin that period, but the Minister maydeclare the by-law to be in force at any timebefore the expiration of that period. R.S., c.149, s. 81.
83. (1) Without prejudice to the powers conferred by section 81, where the Governor inCouncil declares that a band has reached anadvanced stage of development, the council ofthe band may, subject to the approval of theMinister, make by-laws for any or al1 of thefol1owing purposes, namely
(a) the raising of money by
Restriction onexpenditures
Recovery oftaxes
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(i) the assessment and taxation of interests in land in the reserve of persons lawfully in possession thereof, and(ii) the licensing of businesses, callings,trades and occupations;
(b) the appropriation and expenditure ofmoneys of the band to defray band expenses;(c) the appointment of officials to conductthe business of the council, prescribing theirduties and providing for their remunerationout of any moneys raised pursuant to paragraph (0);
. (d) the payment of remuneration, in suchamount as may be approved by the Minister,to chiefs and councillors, out of any moneysraised pursuant to paragraph (0);(e) the imposition of a penalty for nonpayment of taxes imposed pursuant to thissection, recoverable on summary conviction,not exceeding the amount of the tax or theamount remaining unpaid;(j) the raising of money from band membersto support band projects; and(g) with respect to any matter arising out ofor ancillary to the exercise of powers underthis section.
(2) No expenditure shall be made out ofmoneys raised pursuant to paragraph (1)(0)except under the authority of a by-law of thecouncil of the band. R.S., c. 149, s. 82; 1956, c.40, s. 21.
84. Where a tax that is imposed upon anIndian by or under the authority of a by-lawmade under section 83 is not paid in accordance with the by-law, the Minister may pay theamount owing together with an amount equalto one-half of one per cent thereof out ofmoneys payable out of the funds of the band tothe Indian. R.S., c. 149, s.83.
85.1 (1) Subject to subsection (2), the coun-cil of a band may make by-laws
(0) prohibiting the sale, barter, supply ormanufacture of intoxicants on the reserve ofthe band;(b) prohibiting any person from being intoxicated on the reserve;(c) prohibiting any person from havingintoxicants in his possession on the reserve;and(d) providing for exceptions to any of theprohibitions established pursuant to paragraph (b) or (c).
(2) A by-law may not be made under thissection unless it is first assented to by a majority of the electors of the band who voted at aspecial meeting of the band called by the council of the band for the purpose of consideringthe by-law.
(3) A copy of every by-law made under thissection shall be sent by mail to the Minister bythe chief or a member of the council of theband within four days after it is made.
(4) Every person who contravenes a by-lawmade under this section is guilty of an offenceand is liable on summary conviction,
(a) in the case of a by-law made underparagraph (I )(0), to a fine of not more thanone thousand dollars or to imprisonment fora term not exceeding six months or to both;and(b) in the case of a by-law made underparagraph (1 )(b) 'or (c). to a fine of not morethan one hundred dollars or to imprisonmentfor a term not exceeding three months or toboth. 1985, c. 27, s. 16.
Revoking ofauthority tomake moneyby-laws
85. The Governor in Council may revoke adeclaration made under section 83 whereuponthat section no longer applies to the band towhich it formerly applied, but any by-law madeunder the authority of that section and in forceat the time the declaration is revoked shall bedeemed to continue in force until it is revokedby the Governor in Council. R.S., c. 149, s. 84.
Proof 86. A copy of a by-law made by the councilof a band under this Act, if it is certified to be atrue copy by the superintendent, is evidencethat the by-law was duly made by the counciland approved by the Minister, without proof ofthe signature or official character of the superintendent, and no such by-law is invalid byreason of any defect in form. R.S., c. 149. s. 85.
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Propertyexempt fromtaxation
Generalprovinc:iallawsapplic:able toIndians
Property onreserve notsubjec:t toalienation
TAXATION
87. Notwithstanding any other Act of theParliament of Canada or any Act of the legislature of a province, but subject to section 83, thefollowing property is exempt from taxation,oamely:
(a) the interest of an Indian or a band inreserve or surrendered lands; and(b) the personal property of an Indian orband situated on a reserve;
and no Indian or band is subject to taxation inrespect of the ownership, occupation, possessionor use of any property mentioned in paragraph(a) or (b) or is otherwise subject to ta.xation inrespect of any such property; and no successionduty, inheritance tax or estate duty is payableon the death of any Indian in respect of anysuch property or the succession thereto if theproperty passes to an Indian, nor shall any suchproperty be taken into account in determiningthe duty payable under the Dominion Succession Duty Act, being chapter 89 of the RevisedStatutes of Canada, 1952, or the tax payableunder the Estate Tax Act, on or in respect ofother property passing to an Indian. R.S., c.1-6, s. 87; 1980-81-82-83, c. 47, s. 25.
LEGAL RIGHTS
88. Subject to the terms of any treaty andany other Act of the Parliament of Canada, alllaws of general application from time to time inforce in any province are applicable to and inrespect of Indians in the province, except to theextent that such laws are inconsistent with thisAct or any order, rule, regulation or by-lawmade thereunder, and except to the extent thatsuch laws make provision for any matter forwhich provision is made by or under this Act.R.S., c. 149, s. 87.
89•. (1) Subject to this Act, the real andpersonal property of an Indian or a band situated on a reserve is not subject to charge, pledge,mortgage, attachment, levy, seizure, distress orexecution in favour or at the instance of anyperson other than an Indian.
Conditionalsales
Propertydeemedsituated onreserve
Restric:tion ontransfer
Dcstruc:tion ofproperty
Certainproperty on areserve may notbe ac:quired
Savina
(2) A person who sells to a band or amember of a band a chattel under an agreement whereby the right of property or right ofpossession thereto remains wholly or in part inthe seller, may exercise his rights under theagreement notwithstanding that the chattel issituated on a reserve. R.S., c. 149, s. 88.
90. (I) For the purposes of sections 87 and89, personal property that was
(a) purchased by Her Majesty with Indianmoneys or moneys appropriated by Parliament for the use and benefit of Indians orbands, or(b) given to Indians or to a band under atreaty or agreement between a band and HerMajesty,
shall be deemed always to be situated on areserve.
(2) Every transaction purporting to pass titleto any property that is by this section deemedto be situated on a reserve, or any interest insuch property, is void unless the transaction isentered into with the consent of the Minister oris entered into between members of a band orbetween the band and a member thereof.
(3) Every person who enters into any transaction that is void by virtue of subsection (2) isguilty 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, isguilty of an offence. R.S., c. 149, s. 89.
TRADING WITH INDIANS
91. (I) No person may, without the writtenconsent of the Minister, acquire title to any ofthe 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 orcarvings.
(2) Subsection (I) does not apply to chattelsreferred to therein that are manufactured forsale by Indians.
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Removal.dC$truction. etc:.
Penalty
Departmentalemployees. etc.•prohibited fromtrading withouta licence
Cancellation oflicence
Penalty
Dismissal
Removal ofmaterial fromreserve
(3) No person shall remove, take away, mutilate, disfigure, deface or destroy any chattelreferred to in subsection ( I) without the writtenconsent of the Minister.
(4) A person who violates this section isguilty of an offence and is liable on summaryconviction to a fine not exceeding two hundreddollars or to imprisonment for a term notexceeding three months. R.S., c. 149, s. 90.
91. (I) No person who is(a) an officer or employee in th~ Department,(b) a missionary engaged in mission workamong Indians, Of
(c) a school teacher on a reserve,shall, without a licence from the Minister or hisduly authorized representative, trade for profitwith an Indian or sell to him directly or indirectly goods or chattels, but no such licenceshall be issued to a full-time officer oremployee in the Department.
(2) The Minister or his duly authorized reparesentative may at any time cancel a licencegiven under this section.
(3) A person who violates subsection (1) isguilty of an offence and is liable on summaryconviction to a fine not exceeding five hundreddollars.
(4) Without prejudice to subsection (3), anofficer or employee in the Department whocontravenes subsection (1) may be dismissedfrom office. R.S., c. 149, s. 91.
REMOVAL OF MATERIALS FROM RESERVES
93. A person who, without the written permission of the Minister or his duly authorizedrepresentative,
(a) removes or permits anyone to removefrom a reserve
(i) minerals, stone, sand, gravel, clay orsoil, or(ii) trees, saplings, shrubs, underbrush,timber, cordwood or hay, or
(b) has in his possession anything removedfrom a reserve contrary to this section,
is guilty of an offence and is liable on summaryconviction to a fine not exceeding five hundreddollars or to imprisonment for a term not
Sale ofinto~icants
Possession ofinto~icantsoff areserve
Coming intoforce of thissection
exceeding three months, or to both. 1956, c. 40,s.22.
. *94. A person who directly or indirectly byhImself or by any other person on his behalfknowingly
(a) sells, barters, supplies or gives an intoxicant to
(i) any person on a reserve, or(ii) an Indian outside a reserve,
(b) opens or keeps or causes to be opened orkept on a reserve a dwelling-house, building,tent, or place in which intoxicants are soldsupplied or given to any person, or '(c) makes or manufactures intoxicants on areserve,
is guilty of an offence and is liable on summaryconviction to a fine of not less than fifty dollarsand not more than three hundred dollars or toimprisonment for a term of not less than onemonth and not more than six months with orwithout hard labour, or to both fine and imprisonment. R.S., c. 149, s. 93.
*95. An Indian who(a) has intoxicants in his possession,(b) is intoxicated, or(c) makes or manufactures intoxicants,
off a reserve, is guilty of an offence and is liableon summary conviction to a fine of not lessthan ten dollars and not more than fifty dollarsor to imprisonment for a term not exceedingthree months or to both fine and imprisonment.R.S., c. 149, s. 94.
*96. (I) Subsection (2) or subsection (3)comes into force, or ceases to be in force, in aprovince or in a part thereof only if a proclamation declaring it to be in force, or to cease to bein force, as the case may be, in the province orpart thereof is issued by the Governor in Council at the request of the lieutenant governor incouncil of the province.
• Note: 1985, c. 27. s. '17 comes into force December28, 1985 and states:
".7. Sections 94 to 100 of the said Act are repealedand the following substituted therefor:
OFFENCes"
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)
Exception tooffences
Idem
Possession ofintoxicants on areserve
Coming intoforce of thissection
Exception tooffences
Referendum
Regulations
(2) No offence is committed against subparagraph 94(a)(ii) or paragraph 95(a) ifintoxicants are sold to an Indian for consumption in a public place in accordance with thelaw of the province where the sale takes place.
(3) No offence is committed against subparagraph 94(a)(ii) or paragraph 95(a) ifintoxicants are sold to or had in possession byan Indian in accordance with the law of theprovince where the sale takes place or thepossession is had. 1956, c. 40, s. 23.
*97. A person who is found(a) with intoxicants in his possession. or(b) intoxicated,
on a reserve, is guilty of an offence and is liableon summary conviction to a fine of not lessthan ten dollars and not more than fifty dollarsor to imprisonment for a term not exceedingthree months or to both fine and imprisonment.R.S., c. 149, s. 96.
*98. (1) Subsection (2) comes into force, orceases to be in force, in a reserve only if aproclamation declaring it to be in force, or tocease to be in force, as the case may be, in thereserve, is issued by the Governor in Council.
(2) No offence is committed against paragraph 97(a) if intoxicants are had in possessionby any person in accordance with the law of theprovince where the possession is had.
(3) A proclamation in respect of a reserveshall not be issued under subsection (1) exceptin accordance with the wishes of the band, asexpressed at a referendum of the electors of theband by a majority of the electors who votedthereat.
(4) The Governor in Council may makeregulations
(a) respecting the taking of votes and theholding of a referendum for the purposes ofthis section; and-Note: 1985. c. 27. s. 17 comes into force December
28. 1985 and sta tes:")7. Sections 94 to 100 of the said Act are
repealed and the following substituted therefor:
OFFENCES"
Whenproclamationmay issue
Furtherexception tooffences
Exceptionwhereintoxicant usedfor sickness
Onus of proof
Certificate ofanalysis isevidence
(b) .defining a reserve for the purposes ofsubsection (1) to consist of one or morereserves or any part thereof.
(5) No proclamation bringing subsection (2)into force in a reserve shall be issued unless thecouncil· of the band has transmitted to theMinister a resolution of the council requestingthat subsection (2) be brought into force in thereserve, and either
(a) the reserve is situated in a province orpart thereof in which subsection 96(3) is inforce; or(b) the Minister has communicated the contents of the resolution to the attorney generalof the province in which the reserve is situated, the lieutenant governor in council of theprovince has not, within sixty days after suchcommunication, objected to the granting ofthe request, and the Governor in Council hasdirected that the wishes of the band withrespect thereto be ascertained by a referendum of the electors of the band.
(6) Where subsection (2) is in force in areserve no offence is committed against subparagraph 94(a)(ii) or paragraph 95(a) ifintoxicants are sold to or had in possession by amember of the band in accordance with the lawof the province in which the reserve is situated.1956, c. 40, s. 23.
*99. The provisions of this Act relating tointoxicants do not apply where the intoxicant isused or is intended to be used in cases ofsickness or accident. R.S., c. 149, s. 97.
*100. In any prosecution under this Act theburden of proof that an intoxicant was used orwas intended to be used in a case of sickness oraccident is upon the accused. R.S., c. 149. S. 98.
101. In every prosecution under this Act acertificate of analysis furnished by an analystemployed by the Government of Canada or bya province shall be accepted as evidence of thefacts stated therein and of the authority of theperson giving or issuing the certificate, without
-Note: 1985. c. 27, s. 17 comes into force December28, 1985 and states:
")7. Sections 94 to 100 of the said Act arerepealed and the following substituted therefor:
OFFENCES"
Penally whereno otherprovided
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proof of the signature of the person appearing Searchto have signed the certificate or his officialcharacter, and without further proof thereof.R.S., c. 149, s. 99.
101. Every person who is guilty of anoffence against any provision of this Act or anyregulation made by the Governor in Council orthe Minister for which a penalty is not providedelsewhere in this Act or the regulations, isliable on summary conviction to a fine notexceeding two hundred dollars or to imprisonment for a term not exceeding three months, orto both. R.S., c. 149, s. 100.
(4) A justice who is satisfied bv informationupon oath that there is reasonable ground tobelieve that there are upon a reserve or in anybuilding. receptacle or place any goods or chattels by means of or in relation to which anoffence against any of the sections mentionedin subsection (I) has been, is being or is aboutto be committed, may at any time issue awarrant under his hand authorizing a personnamed therein or a peace officer at any time tosearch the reserve. building. receptacle or placefor any such good~ or chattels. R.S., c. 149, s.101: 1952-'53, c. 41, s. S: 1956, c. 40, s. 24.
Seizure ofloods
Detention
Forfeiture
FORFEITURES AND PENALTIES
*103. (1) Whenever a peace officer or asuperintendent or a person authorized by theMinister believes on reasonable grounds that anoffence against section 33, 90, 93, 94, 9S or 97has been committed, he may seize all goods andchattels by means of or in relation to which hereasonably believes the offence was committed.
(2) All goods and chattels seized pursuant tosubsection (1) may be detained for a period ofthree months following the day of seizureunless during that period proceedings underthis Act in respect of such offence are undertaken, in which case the goods and chattelsmay be further detained until such proceedingsare finally concluded.
(3) Where a person is convicted of an offenceagainst the sections mentioned in subsection(1), the convicting court or judge may orderthat the goods and chattels by means of or inrelation to which the offence was committed, inaddition to any penalty imposed, are forfeitedto Her Majesty and may be disposed of as theMinister directs.
-Nott: 1985, c. 27, s. 18 repeals and substitutessubsection 103( I) as of December 28, 1985 as follows:
"103. (I) Whenever a peace officer, a superintendent or a person authorized by the Minister believes onreasonable grounds that an offence against section 33.85.1, 90 or 93 has been committed, he may seize allgoods and chattels by means of or in relation to whichhe believes on reasonable grounds the offence wascommitted."
Disposition offines
Dcacription ofIndians in writs.etc.
Jurisdiction ofmalistrates
104. Every fine, penalty or forfeitureimposed under this Act belongs to Her Majestyfor the benefit of the band with respect towhich or to one or more members of which theoffence was committed or to which the offender, if an Indian, belongs. but the Governor inCouncil may from time to time direct that thefine, penalty or forfeiture shall be paid to aprovincial, municipal or local authority thatbears in whole or in part the expense of admi' .istering the law under which the fine, penalt. I
or forfeiture is imposed, or that the fine, penal·ty or forfeiture shall be applied in the mannerthat he considers will best promote the purposes of the law under which the fine, penaltyor forfeiture is imposed, or the administrationof that law. R.S., c. 149, s. 102.
105. In any order, writ, warrant, summonsor proceeding issued under this Act it is sufficient if the name of the person or Indianreferred to therein is the name given to, or thename by which the person or Indian is knownby, the person who issues the order, writ, warrant, summons or proceedings. and if no part ofthe name of the person is given to or known bythe person issuing the order, writ, warrant,summons or proceedings, it is sufficient if theperson or Indian is described in any manner bywhich he may be identified. R.S., c. 149, s. 103.
106. A police magistrate or a stipendiarymagistrate has and may exercise, with respectto matters arising under this Act. jurisdictionover the whole county, union of counties or
- 69 -
)
Appointment orjustices
,Commissionersror laking oaths
Agreementswith provinces,elc.
Schools
judicial district in which the city, town or otherplace for which he is appointed or in which hehas jurisdiction under provincial laws is situated. R.S., c. 149. s. 104.
107. The Governor in Council may appointpersons to be. for the purposes of this Act.justices of the peace and those persons haveand may exercise the powers and authority oftwo justices of the peace with regard to
(a) offences under this Act; and(b) any offence against the provisions of theCriminal Code relating to cruelty to animals.common assault. breaking and entering andvagrancy. where the offence is committed byan Indian or relates to the person or propertyof an Indian. R.S.• c. 149. s. 105; 1956. c. 40.s.25.
108. For the purposes of this Act or anymatter relating to Indian affairs
(a) persons appointed by the Minister forthe purpose.(b) superintendents. and(c) the Minister. Deputy Minister and thechief officer in charge of the branch of theDepartment relating to Indian affairs.
are ex officio commissioners for the taking ofoaths. R.S.• c. 149. s. 107.
109. to 113. [Repealed. 1985. c. 27, s. 19]
SCHOOLS
114. (I) The Governor in Council mayauthorize the Minister. in accordance with thisAct, to enter into agreements on behalf of HerMajesty for the education in accordance withthis Act of Indian children, with
(a) the government of a province;(b) the Commissioner of the NorthwestTerritories;(c) the Commissioner of the Yukon Territory;(d) a public or separate school board; and(e) a religious or charitable organization.
(2) The Minister may. in accordance withthis Act. establish. operate and maintainschools for Indian children. 1956. C. 40. s. 28.
Regulations
Attendance
Idem
Whenattendance notrequired
115. The Minister may(a) provide for and make regulations withrespect to standards for buildings, equipment, teaching. education. inspection anddiscipline in connection with schools;(b) provide for the transportation of childrento and from school;(c) enter into agreements with religiousorganizations for the support and maintenance of children who are being educated inschools operated by those organizations; and(d) apply the whole or any part of moneysthat would otherwise be payable to or onbehalf of a child who is attending a residential school to the maintenance of that child atthat school. R.S., c. 149, s. 114.
116. (1) Subject to section 1)7, every Indianchild who has attained the age of seven yearsshall attend school.
(2) The Minister may(a) require an Indian who has attained theage ofsix years to attend school;(b) require an Indian who becomes sixteenyears of 'age during the school term to continue to attend school until the end of that term;and '(c) require an Indian who becomes sixteenyears of age to attend school for such furtherperiod as the Minister considers advisable,but no Indian shall be required to attendschool after he becomes eighteen years ofage. R.S.• c. 149, s. ) 15; 1956, C. 40. S. 29.
117. An Indian child is not required toattend school if the child
(a) is. by reason of sickness or other unavoidable cause that is reported promptly tothe principal, unable to attend school;(b) is, with the permission in writing of thesuperintendent, absent from school for aperiod not exceeding six weeks in each termfor the purpose of assisting in husbandry orurgent and necessary household duties;(c) is under efficient instruction at home orelsewhere, within one year after the writtenapproval by the Minister of such instruction;or(d) is unable to attend school because thereis insufficient accommodation in the schoolthat the child is entitled or directed toattend. R.S., C. 149, S. I 16; 1956, C. 40, S. 30.
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School to beattended
Truant officers
Powers
Warrantrequired toenter dwclling.hOIl5e
Authority toisauc warrant
118. Every Indian child who is required toattend school shall attend such school as theMinister may designate, but no child whoseparent is a Protestant shall be assigned to aschool conducted under Roman Catholicauspices and no child whose parent is a RomanCatholic shall be assigned to a school conducted under Protestant auspices, except by writtendirection of the parent. R.S., c. 149, s. 117.
119, (I) The Minister may appoint persons,to be called truant officers, to enforce theattendance of Indian children at school, and forthat purpose a truant officer has the powers ofa peace officer.
(2) Without restricting the generality of subsection (I), a truant officer may, subject tosubsection (2.1),
(a) enter any place where he believes, onreasonable grounds, that there are Indianchildren who are between the ages of sevenand sixteen years of age, or who are requiredby the Minister to attend school;(b) investigate any case of truancy; and(c) serve written notice upon the parent,guardian or other person having the care orlegal custody of a child to cause the child toattend school regularly thereafter.
(2.1) Where any place referred to in paragraph (2)(a) is a dwelling-house, a truant officer may not enter that dwelling-house withoutthe consent of the occupant except under theauthority of a warrant issued under subsection(2.2).
(2.2) Where on ex parte application a justiceof the peace is satisfied by information on oath
(a) that the conditions for entry described inparagraph (2)(a) exist in relation to adwelling-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 beenrefused or that there are reasonable groundsfor believing that entry thereto will berefused,
he may issue a warrant under his hand authorizing the truant officer named therein to enterthat dwelling.house subject to such conditionsas may be specified in the warrant.
Usc of force
Notice toattcnd school
Funhcr notices
Tardiness
Take intocustody
Denominationof teachcr
(2.3) In executing a warrant issued undersubsection (2.2), the truant officer namedtherein shall not use force unless he isaccompanied by a peace officer and the use offorce has been specifically authorized in thewarrant.
(3) Where a notice has been served inaccordance with paragraph (2)(c) with respectto a child who is required by this Act to attendschool, and the child does not within three daysafter the service of notice attend school andcontinue to attend school regularly thereafter,the person upon whom the notice was served isguilty of an offence and is liable on summaryconviction to a fine of not more than fivedollars Or to imprisonment for a term notexceeding ten days, or to both.
(4) Where a person has been served with anotice in accordance with paragraph (2)(c), itis not necessary within a period of twelvemonths thereafter to serve that person withany other notice in respect of further noncompliance with the provisions of this Act, andwhenever such person within the period oftwelve months fails to cause the child witi'respect to whom the notice was served or anyother child of whom he has charge or control toattend school and continue in regular attendance as required by this Act. such person isguilty of an offence and liable to the penaltiesimposed by subsection (3) as if he had beenserved with the notice.
(5) A child who is habitually late for schoolshall be deemed to be absent from school.
(6) A truant officer may take into custody achild whom he believes on reasonable groundsto be absent from school contrary to this Actand may convey the child to school, using asmuch force as the circumstances require. R.S.,c. 1-6, s. 119; 1985, c. 27, s. 20.
120. [Repealed, 1980-81-82·83, c. 110, s.76]
121. (I) Where the majority of the membersof a band belongs to one religious denomina·tion, the school established on the reserve thathas been set apart for the use and benefit ofthat band shall be taught by a teacher of thatdenomination.
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Idem
Minorityrelisiou~
denominations
Definitions
"child"
"school"
"truant officer"
Prior srantsand salesdeemedauthorized
(2) Where the majority of the members of aband are not members of the same religiousdenomination and the band by a majority voteof those electors of the band who were presentat a meeting called for the purpose requeststhat day schools on the reserve should' betaught by a teacher belonging to a particularreligious denomination, the school on thatreserve shall be taught by a teacher of thatdenomination. R.S., c. 149, s. 120.
122. A Protestant or Roman Catholicminority of any band may, with the approval ofand under regulations to be made by the Minister, have a separate day school or day school'classroom established on the reserve unless, inthe opinion of the Governor in Council, thenumber of children of school age does not sowarrant. R.S., c. 149, s. 121.
123. In sections 114 to 122,"child" means an Indian who has attained the
age of six years but has not attained the ageof sixteen years, and a person who is requiredby the Minister to attend school;
"school" includes a day school, technicalschool, high school and residential school;
"truant officer" includes(0) a member of the Royal CanadianMounted Police,(b) a special constable appointed forpolice duty on a reserve, and(c) a school teacher and a chief of theband, when authorized by the.superintendent. R.S .• c. 149, s. 122.
PRIOR GRANTS
124. Where, prior to the 4th day of September, 1951. a reserve or portion of a reserve wasreleased or surrendered to the Crown pursuantto Part I of the Indian Act, chapter 98 of theRevised Statutes of Canada. 1927, or pursuantto the provisions of the statutes relating to therelease or surrender of reserves in force at thetime of the release or surrender, and
(0) prior to that date Letters Patent underthe Great Seal were issued purporting togrant a reserve or portion of a reserve soreleased or surrendered, or any interesttherein, to any person. and the Letters Patenthave not been declared void or inoperative byany Court of competent jurisdiction. or
(b) prior to that date a reserve or portion ofa reserve so released or surrendered, or any.interest therein, was sold or agreed to be soldby the Crown to any person, and the sale oragreement for sale has not been cancelled orby any Court of competent jurisdictiondeclared void or inoperative,
the Letters Patent or the sale or agreement forsale, as the case may be, shall, for all purposes,be deemed to have been issued or made at thedate thereof under the direction of the Governor in Council. 1952-53, c. 41, s. 6.