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Bill C-38

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First Session, Forty-fourth Parliament,

70-71 Elizabeth II – 1 Charles III, 2021-2022

HOUSE OF COMMONS OF CANADA

BILL C-38
An Act to amend the Indian Act (new registration entitlements)
FIRST READING, December 14, 2022

MINISTER OF INDIGENOUS SERVICES AND MINISTER RESPONSIBLE FOR THE FEDERAL ECONOMIC DEVELOPMENT AGENCY FOR NORTHERN ONTARIO
 
91097


SUMMARY

This enactment amends the Indian Act to provide, among other things, new entitlements to registration in the Indian Register in response to the challenge of certain provisions of the Act under the Canadian Charter of Rights and Freedoms in Nicholas v. Canada (Attorney General) and that the persons who have become so entitled also have the right to have their names entered in a Band List maintained in the Department of Indigenous Services.

Available on the House of Commons website at the following address:
www.ourcommons.ca


1st Session, 44th Parliament,

70-71 Elizabeth II – 1 Charles III, 2021-2022

HOUSE OF COMMONS OF CANADA

BILL C-38

An Act to amend the Indian Act (new registration entitlements)

His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.‍S.‍, c. I-5

Indian Act

1 (1) The definition mentally incompetent Indian in subsection 2(1) of the Indian Act is repealed.

(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

Start of inserted block

dependent person means an Indian who, under an Act of the province in which they reside, has been found to be unable to manage their estate by reason of an illness or impairment affecting their cognitive capacity; (personne dépendante)

End of inserted block

R.‍S.‍, c. 48 (4th Supp.‍), s. 1

2 Section 4.‍1 of the Act is replaced by the following:

Provisions that apply to all band members

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 Insertion start dependent person Insertion end 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).

3 Section 5 of the Act is amended by adding the following after subsection (7):

Application for removal

Start of inserted block
(8) A person who wishes to have their name removed from the Indian Register shall apply in writing to the Registrar, in which case the Registrar shall remove their name from the Indian Register and from the Band List maintained in the Department.
End of inserted block

2017, c. 25, ss. 2(2) and 2.‍1(3)

4 (1) Paragraph 6(1)‍(a.‍1) of the Act is replaced by the following:

  • (a.‍1) the name of that person was omitted or deleted from the Indian Register, or from a Band List before September 4, 1951, under

    • Insertion start (i) Insertion end  subparagraph 12(1)‍(a)‍(iii) or (iv), paragraph 12(1)‍(b) or subsection 12(2), as each provision read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as any of those provisions,

    • Start of inserted block

      (ii) section 13, as it read immediately before September 4, 1951, or under any former provision of this Act relating to the same subject matter as that section,

    • (iii) section 111, as it read immediately before July 1, 1920, or under any former provision of this Act relating to the same subject matter as that section, or

    • (iv) section 112, as it read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as that section;

      End of inserted block

R.‍S.‍, c. 32 (1st Supp.‍), s. 4

(2) Subsection 6(1) of the Act is amended by adding “and” at the end of paragraph (b) and by repealing paragraphs (d) and (e).

2017, c. 25, s. 2.‍1(7)

(3) Paragraph 6(3)‍(b) of the Act is replaced by the following:

  • (b) a person who is described in paragraph (1)‍(a.‍1) or (f) or subsection (2) and who was no longer living on April 17, 1985 is deemed to be entitled to be registered under that paragraph or subsection; and

R.‍S.‍, c. 32 (1st Supp.‍), s. 4

5 (1) Paragraph 11(2)‍(a) of the Act is repealed.

2017, c. 25, s. 3.‍1(2)

(2) Paragraph 11(3)‍(a) of the Act is replaced by the following:

  • (a) a person whose name was omitted or deleted from the Indian Register or a Band List in the circumstances set out in paragraph 6(1)‍(a.‍1) and who was no longer living on the first day on which the person would otherwise be entitled to have the person’s name entered in the Band List of the band of which the person ceased to be a member is deemed to be entitled to have the person’s name so entered;

(3) Section 11 of the Act is amended by adding the following after subsection (3.‍1):

Additional membership rules — married women

Start of inserted block
(3.‍2) A person is entitled to have their name entered in a Band List that is maintained in the Department for a band if

  • (a) the person ceased to be a member of that band under section 14, as it read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as that section; or

  • (b) the person is entitled to be registered and is a direct descendant of a person referred to in paragraph (a).

    End of inserted block

6 Section 51 of the Act and the heading before it are replaced by the following:

Start of inserted block

Dependent Persons

End of inserted block
Powers of Minister generally
51 (1) Subject to this section, all jurisdiction and authority in relation to the Insertion start estate Insertion end of Insertion start a dependent person Insertion end is vested exclusively in the Minister.
Particular powers
(2) Without restricting the generality of subsection (1), the Minister may

  • (a) appoint Insertion start a person Insertion end to administer the Insertion start estate Insertion end of Insertion start a dependent person Insertion end ;

  • (b) order that any property of a Insertion start dependent person Insertion end shall be sold, leased, alienated, mortgaged, disposed of or otherwise dealt with for the purpose of

    • (i) paying Insertion start their Insertion end debts or engagements,

    • (ii) discharging encumbrances on Insertion start their Insertion end property,

    • (iii) paying debts or expenses incurred for Insertion start their Insertion end maintenance or otherwise for Insertion start their Insertion end benefit, or

    • (iv) paying or providing for the expenses of future maintenance; and

  • (c) make such orders and give such directions as Insertion start the Minister Insertion end considers necessary to secure the satisfactory management of the estate of a Insertion start dependent person Insertion end .

Property off reserve
(3) The Minister may order that any property situated off a reserve and belonging to a Insertion start dependent person Insertion end shall be dealt with under the laws of the province in which the property is situated.

7 Subsections 64.‍1(1) and (2) of the Act are amended by replacing “6(1)‍(a.‍1), (d) or (e)” with “6(1)‍(a.‍1)”.

Related Provisions

Same meaning

8 Words and expressions used in sections 9 to 11 have the same meaning as in the Indian Act.

Entitlements continued

9 For greater certainty, a person’s entitlement to be registered continues if their name or the name of one of their parents, grandparents or other ancestors is removed from the Indian Register under subsection 5(8) of the Indian Act, as enacted by section 3.

No liability

10 For greater certainty, no person or body has a right to claim or receive any compensation, damages or indemnity from His Majesty in right of Canada, any employee or agent of His Majesty in right of Canada or a council of a band, for anything done or omitted to be done in good faith in the exercise of their powers or the performance of their duties only because of the removal of a person’s name or the name of one of their parents, grandparents or other ancestors under subsection 5(8) of the Indian Act, as enacted by section 3.

No liability

11 For greater certainty, no person or body has a right to claim or receive any compensation, damages or indemnity from His Majesty in right of Canada, any employee or agent of His Majesty in right of Canada or a council of a band, for anything done or omitted to be done in good faith in the exercise of their powers or the performance of their duties only because a person was not registered, or did not have their name entered in a Band List, immediately before the day on which this section comes into force and the person or one of the person’s parents, grandparents or other ancestors is entitled

  • (a) to be registered under

    • (i) paragraph 6(1)‍(a.‍1) of the Indian Act, as enacted by subsection 4(1), or

    • (ii) paragraph 6(1)‍(a.‍3) of the Indian Act, as a result of the amendment to that paragraph 6(1)‍(a.‍1); or

  • (b) to have their name entered in a Band List under subsection 11(3.‍2) of the Indian Act, as enacted by subsection 5(3).

Published under authority of the Speaker of the House of Commons


EXPLANATORY NOTES

Indian Act
Clause 1: (1) Existing text of the definition:

mentally incompetent Indian means an Indian who, pursuant to the laws of the province in which he resides, has been found to be mentally defective or incompetent for the purposes of any laws of that province providing for the administration of estates of mentally defective or incompetent persons; (Indien mentalement incapable)

(2) New.
Clause 2: Existing text of section 4.‍1:

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 3: New.
Clause 4: (1) and (2) Relevant portion of subsection 6(1):

6 (1) Subject to section 7, a person is entitled to be registered if

  • .‍.‍.  

  • (a.‍1) the name of that person was omitted or deleted from the Indian Register, or from a band list before September 4, 1951, under subparagraph 12(1)‍(a)‍(iv), paragraph 12(1)‍(b) or subsection 12(2) or under subparagraph 12(1)‍(a)‍(iii) pursuant to an order made under subsection 109(2), as each provision read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as any of those provisions;

  • .‍.‍.  

  • (d) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)‍(a)‍(iii) pursuant to an order made under subsection 109(1), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions;

  • (e) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951,

    • (i) under section 13, as it read immediately prior to September 4, 1951, or under any former provision of this Act relating to the same subject-matter as that section, or

    • (ii) under section 111, as it read immediately prior to July 1, 1920, or under any former provision of this Act relating to the same subject-matter as that section; or

(3) Relevant portion of subsection 6(3):

(3) For the purposes of paragraphs (1)‍(a.‍3) and (f) and subsection (2),

  • .‍.‍.  

  • (b) a person who is described in paragraph (1)‍(a.‍1), (d), (e) or (f) or subsection (2) and who was no longer living on April 17, 1985 is deemed to be entitled to be registered under that paragraph or subsection; and

Clause 5: (1) Relevant portion of subsection 11(2):

(2) Commencing on the day that is two years after the day that an Act entitled An Act to amend the Indian Act, introduced in the House of Commons on February 28, 1985, is assented to, or on such earlier day as may be agreed to under section 13.‍1, where a band does not have control of its Band List under this Act, a person is entitled to have his name entered in a Band List maintained in the Department for the band

  • (a) if that person is entitled to be registered under paragraph 6(1)‍(d) or (e) and ceased to be a member of that band by reason of the circumstances set out in that paragraph; or

(2) Relevant portion of subsection 11(3):

(3) For the purposes of paragraph (1)‍(d) and subsection (2),

  • (a) a person whose name was omitted or deleted from the Indian Register or a Band List in the circumstances set out in paragraph 6(1)‍(a.‍1), (d) or (e) and who was no longer living on the first day on which the person would otherwise be entitled to have the person’s name entered in the Band List of the band of which the person ceased to be a member is deemed to be entitled to have the person’s name so entered;

(3) New.
Clause 6: Existing text of the heading and section 51:
Mentally Incompetent Indians

51 (1) Subject to this section, all jurisdiction and authority in relation to the property of mentally incompetent Indians is vested exclusively in the Minister.

(2) Without restricting the generality of subsection (1), the Minister may

  • (a) appoint persons to administer the estates of mentally incompetent Indians;

  • (b) order that any property of a mentally incompetent Indian shall be sold, leased, alienated, mortgaged, disposed of or otherwise dealt with for the purpose of

    • (i) paying his debts or engagements,

    • (ii) discharging encumbrances on his property,

    • (iii) paying debts or expenses incurred for his maintenance or otherwise for his benefit, or

    • (iv) paying or providing for the expenses of future maintenance; and

  • (c) make such orders and give such directions as he considers necessary to secure the satisfactory management of the estates of mentally incompetent Indians.

(3) The Minister may order that any property situated off a reserve and belonging to a mentally incompetent Indian shall be dealt with under the laws of the province in which the property is situated.


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