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Bill C-61

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First Reading

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	SUMMARY
	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.
	EXPLANATORY NOTES
	Canadian Human Rights Act
	Clause 41: New.
	Clause 42: Section 67 reads as follows:
	67. Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act.
	Indian Act
	Clause 43: (1) and (2) The definitions ``council of the band'' and ``intoxicant'' in subsection 2(1) read as follows:
	``council of the band'' means
	(a) in the case of a band to which section 74 applies, the council established pursuant to that section,
	(b) in the case of a band to which section 74 does not apply, the council chosen according to the custom of the band, or, where there is no council, the chief of the band chosen according to the custom of the band;
	``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;
	(3) The relevant portion of the definition ``elector'' in subsection 2(1) reads as follows:
	``elector'' means a person who
	...
	(c) is not disqualified from voting at band elections;
	(4) Subsection 2(3) reads as follows:
	(3) Unless the context otherwise requires or this Act otherwise provides,
	(a) a power conferred on a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the electors of the band; and
	(b) a power conferred on the council of a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the councillors of the band present at a meeting of the council duly convened.
	Clause 44: Section 4.1 reads as follows:
	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).
	Clause 45: Subsection 10(3) reads as follows:
	(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.
	Clause 46: The heading before section 32 and sections 32 to 34 read as follows:
	SALE OR BARTER OF PRODUCE
	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.
	(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.
	33. Every person who enters into a transaction that is void under subsection 32(1) is guilty of an offence.
	ROADS AND BRIDGES
	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.
	(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.
	Clause 47: Subsection 64(2) reads as follows:
	(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.
	Clause 48: Subsection 64.1(2) reads as follows:
	(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.
	Clause 49: Subsection 66(2.1) reads as follows:
	(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.
	Clause 50: Section 71 and the heading before it read as follows:
	FARMS
	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.
	(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.
	Clause 51: Subsections 73(1) and (2) read as follows:
	73. (1) The Governor in Council may make regulations
	(a) for the protection and preservation of fur-bearing animals, fish and other game on reserves;
	(b) for the destruction of noxious weeds and the prevention of the spreading or prevalence of insects, pests or diseases that may destroy or injure vegetation on Indian reserves;
	(c) for the control of the speed, operation and parking of vehicles on roads within reserves;
	(d) for the taxation, control and destruction of dogs and for the protection of sheep on reserves;
	(e) for the operation, supervision and control of pool rooms, dance halls and other places of amusement on reserves;
	(f) to prevent, mitigate and control the spread of diseases on reserves, whether or not the diseases are infectious or communicable;
	(g) to provide medical treatment and health services for Indians;
	(h) to provide compulsory hospitalization and treatment for infectious diseases among Indians;
	(i) to provide for the inspection of premises on reserves and the destruction, alteration or renovation thereof;
	(j) to prevent overcrowding of premises on reserves used as dwellings;
	(k) to provide for sanitary conditions in private premises on reserves as well as in public places on reserves;
	(l) for the construction and maintenance of boundary fences; and
	(m) for empowering and authorizing the council of a band to borrow money for band projects or housing purposes and providing for the making of loans out of moneys so borrowed to members of the band for housing purposes.
	(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).
	Clause 52: The heading before section 74 and sections 74 to 80 read as follows:
	ELECTIONS OF CHIEFS AND BAND COUNCILS
	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.
	(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.
	(3) The Governor in Council may, for the purposes of giving effect to subsection (1), make orders or regulations to provide
	(a) that the chief of a band shall be elected by
	(i) a majority of the votes of the electors of the band, or
	(ii) a majority of the votes of the elected councillors of the band from among themselves,
	but the chief so elected shall remain a councillor; and
	(b) that the councillors of a band shall be elected by
	(i) a majority of the votes of the electors of the band, or
	(ii) a majority of the votes of the electors of the band in the electoral section in which the candidate resides and that he proposes to represent on the council of the band.
	(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.
	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.
	(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.
	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
	(a) meetings to nominate candidates;
	(b) the appointment and duties of electoral officers;
	(c) the manner in which voting is to be carried out;
	(d) election appeals; and
	(e) the definition of residence for the purpose of determining the eligibility of voters.
	(2) The regulations made under paragraph (1)(c) shall provide for secrecy of voting.
	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.
	(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.
	78. (1) Subject to this section, the chief and councillors of a band hold office for two years.
	(2) The office of chief or councillor of a band becomes vacant when
	(a) the person who holds that office
	(i) is convicted of an indictable offence,
	(ii) dies or resigns his office, or
	(iii) is or becomes ineligible to hold office by virtue of this Act; or
	(b) the Minister declares that in his opinion the person who holds that office
	(i) is unfit to continue in office by reason of his having been convicted of an offence,
	(ii) has been absent from three consecutive meetings of the council without being authorized to do so, or
	(iii) was guilty, in connection with an election, of corrupt practice, accepting a bribe, dishonesty or malfeasance.
	(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.
	(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.
	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
	(a) there was corrupt practice in connection with the election;
	(b) there was a contravention of this Act that might have affected the result of the election; or
	(c) a person nominated to be a candidate in the election was ineligible to be a candidate.
	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
	(a) presiding officers at such meetings;
	(b) notice of such meetings;
	(c) the duties of any representative of the Minister at such meetings; and
	(d) the number of persons required at such meetings to constitute a quorum.
	Clause 53: Sections 81 and 82 read as follows:
	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,
	(a) to provide for the health of residents on the reserve and to prevent the spreading of contagious and infectious diseases;
	(b) the regulation of traffic;
	(c) the observance of law and order;
	(d) the prevention of disorderly conduct and nuisances;
	(e) the protection against and prevention of trespass by cattle and other domestic animals, the establishment of pounds, the appointment of pound-keepers, the regulation of their duties and the provision for fees and charges for their services;
	(f) the construction and maintenance of watercourses, roads, bridges, ditches, fences and other local works;
	(g) the dividing of the reserve or a portion thereof into zones and the prohibition of the construction or maintenance of any class of buildings or the carrying on of any class of business, trade or calling in any zone;
	(h) the regulation of the construction, repair and use of buildings, whether owned by the band or by individual members of the band;
	(i) the survey and allotment of reserve lands among the members of the band and the establishment of a register of Certificates of Possession and Certificates of Occupation relating to allotments and the setting apart of reserve lands for common use, if authority therefor has been granted under section 60;
	(j) the destruction and control of noxious weeds;
	(k) the regulation of bee-keeping and poultry raising;
	(l) the construction and regulation of the use of public wells, cisterns, reservoirs and other water supplies;
	(m) the control or prohibition of public games, sports, races, athletic contests and other amusements;
	(n) the regulation of the conduct and activities of hawkers, peddlers or others who enter the reserve to buy, sell or otherwise deal in wares or merchandise;
	(o) the preservation, protection and management of fur-bearing animals, fish and other game on the reserve;
	(p) the removal and punishment of persons trespassing on the reserve or frequenting the reserve for prohibited purposes;
	(p.1) the residence of band members and other persons on the reserve;
	(p.2) to provide for the rights of spouses and children who reside with members of the band on the reserve with respect to any matter in relation to which the council may make by-laws in respect of members of the band;
	(p.3) to authorize the Minister to make payments out of capital or revenue moneys to persons whose names were deleted from the Band List of the band;
	(p.4) to bring subsection 10(3) or 64.1(2) into effect in respect of the band;
	(q) with respect to any matter arising out of or ancillary to the exercise of powers under this section; and
	(r) the imposition on summary conviction of a fine not exceeding one thousand dollars or imprisonment for a term not exceeding thirty days, or both, for violation of a by-law made under this section.
	(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.
	(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.
	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.
	(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.
	Clause 54: (1) and (2) The relevant portion of subsection 83(1) reads as follows:
	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,
	. . .
	(a.1) the licensing of businesses, callings, trades and occupations;
	(b) the appropriation and expenditure of moneys of the band to defray band expenses;
	(c) the appointment of officials to conduct the business of the council, prescribing their duties and providing for their remuneration out of any moneys raised pursuant to paragraph (a);
	(d) the payment of remuneration, in such amount as may be approved by the Minister, to chiefs and councillors, out of any moneys raised pursuant to paragraph (a);
	Clause 55: Sections 85.1 and 86 read as follows:
	85.1 (1) Subject to subsection (2), the council of a band may make by-laws
	(a) prohibiting the sale, barter, supply or manufacture of intoxicants on the reserve of the band;
	(b) prohibiting any person from being intoxicated on the reserve;
	(c) prohibiting any person from having intoxicants in his possession on the reserve; and
	(d) providing for exceptions to any of the prohibitions established pursuant to paragraph (b) or (c).
	(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.
	(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.
	(4) Every person who contravenes a by-law made under this section is guilty of an offence and liable on summary conviction
	(a) in the case of a by-law made under paragraph (1)(a), to a fine of not more than one thousand dollars or to imprisonment for a term not exceeding six months or to both; and
	(b) in the case of a by-law made under paragraph (1)(b) or (c), to a fine of not more than one hundred dollars or to imprisonment for a term not exceeding three months or to both.
	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.
	Clause 56: Section 88 reads as follows:
	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.
	Clause 57: Sections 92 and 93 read as follows:
	92. (1) No person who is
	(a) an officer or employee in the Department,
	(b) a missionary engaged in mission work among Indians, or
	(c) a school teacher on a reserve,
	shall, without a licence from the Minister or his duly authorized representative, trade for profit with an Indian or sell to him directly or indirectly goods or chattels, but no such licence shall be issued to a full-time officer or employee in the Department.
	(2) The Minister or his duly authorized representative may at any time cancel a licence issued under this section.
	(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.
	(4) Without prejudice to subsection (3), an officer or employee in the Department who contravenes subsection (1) may be dismissed from office.
	REMOVAL OF MATERIALS FROM RESERVES
	93. A person who, without the written permission of the Minister or his duly authorized representative,
	(a) removes or permits anyone to remove from a reserve
	(i) minerals, stone, sand, gravel, clay or soil, or
	(ii) trees, saplings, shrubs, underbrush, timber, cordwood or hay, or
	(b) has in his possession anything removed from a reserve contrary to this section,
	is guilty of an offence and liable on summary conviction to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding three months or to both.
	Clause 58: Subsection 103(1) reads as follows:
	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.