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This enactment provides governance tools to bands operating under
the Indian Act in matters of leadership selection, administration of
government, financial management and accountability, legal capacity
and law-making. It makes a number of related amendments to the
Indian Act.
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Clause 41: New.
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Clause 42: Section 67 reads as follows:
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67. Nothing in this Act affects any provision of the Indian Act or any
provision made under or pursuant to that Act.
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Clause 43: (1) and (2) The definitions ``council of the
band'' and ``intoxicant'' in subsection 2(1) read as
follows:
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``council of the band'' means
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(a) in the case of a band to which section 74 applies, the council
established pursuant to that section,
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(b) in the case of a band to which section 74 does not apply, the
council chosen according to the custom of the band, or, where
there is no council, the chief of the band chosen according to the
custom of the band;
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``intoxicant'' includes alcohol, alcoholic, spirituous, vinous, fermented
malt or other intoxicating liquor or combination of liquors and mixed
liquor a part of which is spirituous, vinous, fermented or otherwise
intoxicating and all drinks, drinkable liquids, preparations or
mixtures capable of human consumption that are intoxicating;
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(3) The relevant portion of the definition ``elector'' in
subsection 2(1) reads as follows:
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``elector'' means a person who
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(c) is not disqualified from voting at band elections;
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(4) Subsection 2(3) reads as follows:
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(3) Unless the context otherwise requires or this Act otherwise
provides,
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(a) a power conferred on a band shall be deemed not to be exercised
unless it is exercised pursuant to the consent of a majority of the
electors of the band; and
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(b) a power conferred on the council of a band shall be deemed not
to be exercised unless it is exercised pursuant to the consent of a
majority of the councillors of the band present at a meeting of the
council duly convened.
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Clause 44: Section 4.1 reads as follows:
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4.1 A reference to an Indian in any of the following provisions shall
be deemed to include a reference to any person whose name is entered
in a Band List and who is entitled to have it entered therein: the
definitions ``band'', ``Indian moneys'' and ``mentally incompetent
Indian'' in section 2, subsections 4(2) and (3) and 18(2), sections 20 and
22 to 25, subsections 31(1) and (3) and 35(4), sections 51, 52, 52.2 and
52.3, subsections 58(3) and 61(1), sections 63 and 65, subsections 66(2)
and 70(1) and (4), section 71, paragraphs 73(g) and (h), subsection
74(4), section 84, paragraph 87(1)(a), section 88, subsection 89(1) and
paragraph 107(b).
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Clause 45: Subsection 10(3) reads as follows:
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(3) Where the council of a band makes a by-law under paragraph
81(1)(p.4) bringing this subsection into effect in respect of the band, the
consents required under subsections (1) and (2) shall be given by a
majority of the members of the band who are of the full age of eighteen
years.
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Clause 46: The heading before section 32 and sections
32 to 34 read as follows:
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32. (1) A transaction of any kind whereby a band or a member
thereof purports to sell, barter, exchange, give or otherwise dispose of
cattle or other animals, grain or hay, whether wild or cultivated, or root
crops or plants or their products from a reserve in Manitoba,
Saskatchewan or Alberta, to a person other than a member of that band,
is void unless the superintendent approves the transaction in writing.
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(2) The Minister may at any time by order exempt a band and the
members thereof or any member thereof from the operation of this
section, and may revoke any such order.
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33. Every person who enters into a transaction that is void under
subsection 32(1) is guilty of an offence.
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34. (1) A band shall ensure that the roads, bridges, ditches and fences
within the reserve occupied by that band are maintained in accordance
with instructions issued from time to time by the superintendent.
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(2) Where, in the opinion of the Minister, a band has not carried out
the instructions of the superintendent issued under subsection (1), the
Minister may cause the instructions to be carried out at the expense of
the band or any member thereof and may recover the cost thereof from
any amounts that are held by Her Majesty and are payable to the band
or member.
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Clause 47: Subsection 64(2) reads as follows:
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(2) The Minister may make expenditures out of the capital moneys
of a band in accordance with by-laws made pursuant to paragraph
81(1)(p.3) for the purpose of making payments to any person whose
name was deleted from the Band List of the band in an amount not
exceeding one per capita share of the capital moneys.
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Clause 48: Subsection 64.1(2) reads as follows:
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(2) Where the council of a band makes a by-law under paragraph
81(1)(p.4) bringing this subsection into effect, a person who has
received an amount that exceeds one thousand dollars under paragraph
15(1)(a), as it read immediately prior to April 17, 1985, or under any
former provision of this Act relating to the same subject-matter as that
paragraph, by reason of ceasing to be a member of the band in the
circumstances set out in paragraph 6(1)(c), (d) or (e) is not entitled to
receive any benefit afforded to members of the band as individuals as
a result of the expenditure of Indian moneys under paragraphs 64(1)(b)
to (k), subsection 66(1) or subsection 69(1) until the amount by which
the amount so received exceeds one thousand dollars, together with any
interest thereon, has been repaid to the band.
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Clause 49: Subsection 66(2.1) reads as follows:
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(2.1) The Minister may make expenditures out of the revenue
moneys of a band in accordance with by-laws made pursuant to
paragraph 81(1)(p.3) for the purpose of making payments to any person
whose name was deleted from the Band List of the band in an amount
not exceeding one per capita share of the revenue moneys.
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Clause 50: Section 71 and the heading before it read
as follows:
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71. (1) The Minister may operate farms on reserves and may employ
such persons as he considers necessary to instruct Indians in farming
and may purchase and distribute without charge pure seed to Indian
farmers.
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(2) The Minister may apply any profits that result from the operation
of farms pursuant to subsection (1) on reserves to extend farming
operations on the reserves or to make loans to Indians to enable them
to engage in farming or other agricultural operations or he may apply
those profits in any way that he considers to be desirable to promote the
progress and development of the Indians.
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Clause 51: Subsections 73(1) and (2) read as follows:
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73. (1) The Governor in Council may make regulations
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(a) for the protection and preservation of fur-bearing animals, fish
and other game on reserves;
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(b) for the destruction of noxious weeds and the prevention of the
spreading or prevalence of insects, pests or diseases that may destroy
or injure vegetation on Indian reserves;
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(c) for the control of the speed, operation and parking of vehicles on
roads within reserves;
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(d) for the taxation, control and destruction of dogs and for the
protection of sheep on reserves;
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(e) for the operation, supervision and control of pool rooms, dance
halls and other places of amusement on reserves;
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(f) to prevent, mitigate and control the spread of diseases on reserves,
whether or not the diseases are infectious or communicable;
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(g) to provide medical treatment and health services for Indians;
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(h) to provide compulsory hospitalization and treatment for
infectious diseases among Indians;
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(i) to provide for the inspection of premises on reserves and the
destruction, alteration or renovation thereof;
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(j) to prevent overcrowding of premises on reserves used as
dwellings;
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(k) to provide for sanitary conditions in private premises on reserves
as well as in public places on reserves;
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(l) for the construction and maintenance of boundary fences; and
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(m) for empowering and authorizing the council of a band to borrow
money for band projects or housing purposes and providing for the
making of loans out of moneys so borrowed to members of the band
for housing purposes.
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(2) The Governor in Council may prescribe the punishment, not
exceeding a fine of one hundred dollars or imprisonment for a term not
exceeding three months or both, that may be imposed on summary
conviction for contravention of a regulation made under subsection (1).
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Clause 52: The heading before section 74 and sections
74 to 80 read as follows:
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74. (1) Whenever he deems it advisable for the good government of
a band, the Minister may declare by order that after a day to be named
therein the council of the band, consisting of a chief and councillors,
shall be selected by elections to be held in accordance with this Act.
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(2) Unless otherwise ordered by the Minister, the council of a band
in respect of which an order has been made under subsection (1) shall
consist of one chief, and one councillor for every one hundred members
of the band, but the number of councillors shall not be less than two nor
more than twelve and no band shall have more than one chief.
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(3) The Governor in Council may, for the purposes of giving effect
to subsection (1), make orders or regulations to provide
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(a) that the chief of a band shall be elected by
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(i) a majority of the votes of the electors of the band, or
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(ii) a majority of the votes of the elected councillors of the band
from among themselves,
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but the chief so elected shall remain a councillor; and
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(b) that the councillors of a band shall be elected by
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(i) a majority of the votes of the electors of the band, or
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(ii) a majority of the votes of the electors of the band in the
electoral section in which the candidate resides and that he
proposes to represent on the council of the band.
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(4) A reserve shall for voting purposes consist of one electoral
section, except that where the majority of the electors of a band who
were present and voted at a referendum or a special meeting held and
called for the purpose in accordance with the regulations have decided
that the reserve should for voting purposes be divided into electoral
sections and the Minister so recommends, the Governor in Council may
make orders or regulations to provide for the division of the reserve for
voting purposes into not more than six electoral sections containing as
nearly as may be an equal number of Indians eligible to vote and to
provide for the manner in which electoral sections so established are to
be distinguished or identified.
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75. (1) No person other than an elector who resides in an electoral
section may be nominated for the office of councillor to represent that
section on the council of the band.
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(2) No person may be a candidate for election as chief or councillor
of a band unless his nomination is moved and seconded by persons who
are themselves eligible to be nominated.
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76. (1) The Governor in Council may make orders and regulations
with respect to band elections and, without restricting the generality of
the foregoing, may make regulations with respect to
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(a) meetings to nominate candidates;
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(b) the appointment and duties of electoral officers;
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(c) the manner in which voting is to be carried out;
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(d) election appeals; and
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(e) the definition of residence for the purpose of determining the
eligibility of voters.
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(2) The regulations made under paragraph (1)(c) shall provide for
secrecy of voting.
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77. (1) A member of a band who has attained the age of eighteen
years and is ordinarily resident on the reserve is qualified to vote for a
person nominated to be chief of the band and, where the reserve for
voting purposes consists of one section, to vote for persons nominated
as councillors.
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(2) A member of a band who is of the full age of eighteen years and
is ordinarily resident in a section that has been established for voting
purposes is qualified to vote for a person nominated to be councillor to
represent that section.
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78. (1) Subject to this section, the chief and councillors of a band
hold office for two years.
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(2) The office of chief or councillor of a band becomes vacant when
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(a) the person who holds that office
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(i) is convicted of an indictable offence,
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(ii) dies or resigns his office, or
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(iii) is or becomes ineligible to hold office by virtue of this Act;
or
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(b) the Minister declares that in his opinion the person who holds that
office
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(i) is unfit to continue in office by reason of his having been
convicted of an offence,
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(ii) has been absent from three consecutive meetings of the
council without being authorized to do so, or
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(iii) was guilty, in connection with an election, of corrupt practice,
accepting a bribe, dishonesty or malfeasance.
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(3) The Minister may declare a person who ceases to hold office by
virtue of subparagraph (2)(b)(iii) to be ineligible to be a candidate for
chief or councillor of a band for a period not exceeding six years.
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(4) Where the office of chief or councillor of a band becomes vacant
more than three months before the date when another election would
ordinarily be held, a special election may be held in accordance with this
Act to fill the vacancy.
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79. The Governor in Council may set aside the election of a chief or
councillor of a band on the report of the Minister that he is satisfied that
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(a) there was corrupt practice in connection with the election;
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(b) there was a contravention of this Act that might have affected the
result of the election; or
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(c) a person nominated to be a candidate in the election was ineligible
to be a candidate.
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80. The Governor in Council may make regulations with respect to
band meetings and council meetings and, without restricting the
generality of the foregoing, may make regulations with respect to
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(a) presiding officers at such meetings;
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(b) notice of such meetings;
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(c) the duties of any representative of the Minister at such meetings;
and
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(d) the number of persons required at such meetings to constitute a
quorum.
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Clause 53: Sections 81 and 82 read as follows:
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81. (1) The council of a band may make by-laws not inconsistent
with this Act or with any regulation made by the Governor in Council
or the Minister, for any or all of the following purposes, namely,
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(a) to provide for the health of residents on the reserve and to prevent
the spreading of contagious and infectious diseases;
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(b) the regulation of traffic;
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(c) the observance of law and order;
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(d) the prevention of disorderly conduct and nuisances;
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(e) the protection against and prevention of trespass by cattle and
other domestic animals, the establishment of pounds, the
appointment of pound-keepers, the regulation of their duties and the
provision for fees and charges for their services;
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(f) the construction and maintenance of watercourses, roads,
bridges, ditches, fences and other local works;
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(g) the dividing of the reserve or a portion thereof into zones and the
prohibition of the construction or maintenance of any class of
buildings or the carrying on of any class of business, trade or calling
in any zone;
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(h) the regulation of the construction, repair and use of buildings,
whether owned by the band or by individual members of the band;
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(i) the survey and allotment of reserve lands among the members of
the band and the establishment of a register of Certificates of
Possession and Certificates of Occupation relating to allotments and
the setting apart of reserve lands for common use, if authority
therefor has been granted under section 60;
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(j) the destruction and control of noxious weeds;
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(k) the regulation of bee-keeping and poultry raising;
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(l) the construction and regulation of the use of public wells, cisterns,
reservoirs and other water supplies;
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(m) the control or prohibition of public games, sports, races, athletic
contests and other amusements;
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(n) the regulation of the conduct and activities of hawkers, peddlers
or others who enter the reserve to buy, sell or otherwise deal in wares
or merchandise;
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(o) the preservation, protection and management of fur-bearing
animals, fish and other game on the reserve;
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(p) the removal and punishment of persons trespassing on the
reserve or frequenting the reserve for prohibited purposes;
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(p.1) the residence of band members and other persons on the
reserve;
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(p.2) to provide for the rights of spouses and children who reside
with members of the band on the reserve with respect to any matter
in relation to which the council may make by-laws in respect of
members of the band;
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(p.3) to authorize the Minister to make payments out of capital or
revenue moneys to persons whose names were deleted from the
Band List of the band;
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(p.4) to bring subsection 10(3) or 64.1(2) into effect in respect of the
band;
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(q) with respect to any matter arising out of or ancillary to the
exercise of powers under this section; and
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(r) the imposition on summary conviction of a fine not exceeding
one thousand dollars or imprisonment for a term not exceeding thirty
days, or both, for violation of a by-law made under this section.
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(2) Where any by-law of a band is contravened and a conviction
entered, in addition to any other remedy and to any penalty imposed by
the by-law, the court in which the conviction has been entered, and any
court of competent jurisdiction thereafter, may make an order
prohibiting the continuation or repetition of the offence by the person
convicted.
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(3) Where any by-law of a band passed is contravened, in addition
to any other remedy and to any penalty imposed by the by-law, such
contravention may be restrained by court action at the instance of the
band council.
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82. (1) A copy of every by-law made under section 81 shall be
forwarded by mail by the chief or a member of the council of the band
to the Minister within four days after it is made.
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(2) A by-law made under section 81 comes into force forty days after
a copy thereof is forwarded to the Minister pursuant to subsection (1),
unless it is disallowed by the Minister within that period, but the
Minister may declare the by-law to be in force at any time before the
expiration of that period.
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Clause 54: (1) and (2) The relevant portion of
subsection 83(1) reads as follows:
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83. (1) Without prejudice to the powers conferred by section 81, the
council of a band may, subject to the approval of the Minister, make
by-laws for any or all of the following purposes, namely,
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(a.1) the licensing of businesses, callings, trades and occupations;
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(b) the appropriation and expenditure of moneys of the band to
defray band expenses;
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(c) the appointment of officials to conduct the business of the
council, prescribing their duties and providing for their
remuneration out of any moneys raised pursuant to paragraph (a);
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(d) the payment of remuneration, in such amount as may be
approved by the Minister, to chiefs and councillors, out of any
moneys raised pursuant to paragraph (a);
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Clause 55: Sections 85.1 and 86 read as follows:
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85.1 (1) Subject to subsection (2), the council of a band may make
by-laws
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(a) prohibiting the sale, barter, supply or manufacture of intoxicants
on the reserve of the band;
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(b) prohibiting any person from being intoxicated on the reserve;
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(c) prohibiting any person from having intoxicants in his possession
on the reserve; and
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(d) providing for exceptions to any of the prohibitions established
pursuant to paragraph (b) or (c).
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(2) A by-law may not be made under this section unless it is first
assented to by a majority of the electors of the band who voted at a
special meeting of the band called by the council of the band for the
purpose of considering the by-law.
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(3) A copy of every by-law made under this section shall be sent by
mail to the Minister by the chief or a member of the council of the band
within four days after it is made.
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(4) Every person who contravenes a by-law made under this section
is guilty of an offence and liable on summary conviction
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(a) in the case of a by-law made under paragraph (1)(a), to a fine of
not more than one thousand dollars or to imprisonment for a term not
exceeding six months or to both; and
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(b) in the case of a by-law made under paragraph (1)(b) or (c), to a
fine of not more than one hundred dollars or to imprisonment for a
term not exceeding three months or to both.
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86. A copy of a by-law made by the council of a band under this Act,
if it is certified to be a true copy by the superintendent, is evidence that
the by-law was duly made by the council and approved by the Minister,
without proof of the signature or official character of the
superintendent, and no such by-law is invalid by reason of any defect
in form.
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Clause 56: Section 88 reads as follows:
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88. Subject to the terms of any treaty and any other Act of Parliament,
all laws of general application from time to time in force in any province
are applicable to and in respect of Indians in the province, except to the
extent that those laws are inconsistent with this Act or any order, rule,
regulation or by-law made thereunder, and except to the extent that
those laws make provision for any matter for which provision is made
by or under this Act.
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Clause 57: Sections 92 and 93 read as follows:
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92. (1) No person who is
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(a) an officer or employee in the Department,
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(b) a missionary engaged in mission work among Indians, or
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(c) a school teacher on a reserve,
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shall, without a licence from the Minister or his duly authorized
representative, trade for profit with an Indian or sell to him directly or
indirectly goods or chattels, but no such licence shall be issued to a
full-time officer or employee in the Department.
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(2) The Minister or his duly authorized representative may at any
time cancel a licence issued under this section.
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(3) A person who contravenes subsection (1) is guilty of an offence
and liable on summary conviction to a fine not exceeding five hundred
dollars.
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(4) Without prejudice to subsection (3), an officer or employee in the
Department who contravenes subsection (1) may be dismissed from
office.
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93. A person who, without the written permission of the Minister or
his duly authorized representative,
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(a) removes or permits anyone to remove from a reserve
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(i) minerals, stone, sand, gravel, clay or soil, or
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(ii) trees, saplings, shrubs, underbrush, timber, cordwood or hay,
or
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(b) has in his possession anything removed from a reserve contrary
to this section,
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is guilty of an offence and liable on summary conviction to a fine not
exceeding five hundred dollars or to imprisonment for a term not
exceeding three months or to both.
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Clause 58: Subsection 103(1) reads as follows:
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103. (1) Whenever a peace officer, a superintendent or a person
authorized by the Minister believes on reasonable grounds that an
offence against section 33, 85.1, 90 or 93 has been committed, he may
seize all goods and chattels by means of or in relation to which he
believes on reasonable grounds the offence was committed.
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