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Understanding the Indian Act


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Understanding the Indian Act

  1. 1. Understanding the Indian Act George Nicholson, LLB.
  2. 2. Brief History The Constitution Act, 1867 (called the British North America Act at that time), divides powers between the Federal and Provincial governments In part to help protect Aboriginals from local governments, jurisdiction in regards to “Indians and land reserved for Indians” is granted under s. 91(24) to the federal government In 1876, the first Indian Act is passed Over the next hundred years, it undergoes significant amendments over 20 times but is never fully replaced In 1966, the Department of Indian Affairs and Northern Development is developed, recently renamed Aboriginal Affairs and Northern Development Canada (AANDC)
  3. 3. General Contents of the IndianAct Eligibility of Indians and Management of Band Lists Management of Reserve Lands Surrenders & Designations Wills & Estates Management of Indian and Band Moneys Election of Chief & Council Powers of Chief & Council Legal Rights and Status Education and Schools
  4. 4. Eligibility for Indian Status Under s. 6(1) anyone who is the child of two status Indians gains status and will be able to pass it on to his or her children Under s. 6(2) anyone who is the child of one status Indian gains status but cannot pass status on to his or her children unless he or she has children with someone else who also has status Generally, someone with less than 50% aboriginal ancestry is not eligible but there are a number of exceptions to this
  5. 5. Bill C-31 Prior to 1985, Aboriginal women who married non-Aboriginal men lost their Indian status, and non-Aboriginal women who married Aboriginal men gained Aboriginal status After the Constitution Act, 1982, it was generally agreed that this discriminated against Aboriginal women, was inconsistent with the Charter of Rights and Freedoms, and should be changed In 1985, Canada passed Bill C-31 which gave status back to Aboriginal women who lost their status because of marriage and to the children of these women who would have otherwise been eligible Bill C-31 did not take away status from anyone, so some non- Aboriginal women still have Indian status
  6. 6. The Fictional Story of Glenda andGlen1960 - Glenda is born with 100% Glen, Glenda’s twin brother, is aboriginal ancestry and Indian also born with 100% ancestry and status under s. 6(1) status under s. 6(1)1980 - Glenda marries a non- Glen marries a non-Aboriginal Aboriginal man and loses her woman, and his new wife gains status. status despite being non-Aboriginal1982 - Glenda’s first child is born Glen’s child is born with status without status. under s. 6(1) because both parents have status.1985 - Bill C-31 grants status under s. Bill C-31 does not affect Glen and 6(1) back to Glenda and under his family. Glen’s child still has s. 6(2) to her child. status under s. 6(1)2002 – Glenda’s child marries a non- Glen’s child also marries a non- Aboriginal spouse Aboriginal spouse2004 - Glenda’s first grandchild is Glen’s first grandchild is born with born without status status under s. 6(2)
  7. 7. Bill C-3 Sharon McIvor, a grandmother like the one in the example, sued the Indian Registrar for gender discrimination and won The Courts directed Canada to amend the Indian Act, which they did through Bill C-3 which came into effect on January 31, 2011 Bill C-3 allows women who lost status because of marriage prior to 1985 to pass status on to grand-children even if her children have non-Aboriginal spouses It applies only to a single generation of people, the grand- children of those women, and it will not apply to future generations
  8. 8. Custom Membership Codes Under s. 10 of the Indian Act, Bands can assume control over their own band list or membership Bands that do so develop a custom membership code and have it approved by their community Membership in the band does not affect status If a Band’s custom code expands membership to people who are not otherwise eligible for status, the Band will not normally receive increased funding from AANDC for those individuals Bands with their own Code maintain their own list and AANDC maintains its list of those eligible for status only for calculating funding
  9. 9. Band Lists AANDC maintains band lists for band’s who do not assume their own custom code, s. 11 People are generally placed on the band list their parent’s belonged to People who are born from parents of two different bands can generally choose which band they belong to If they want to, Bands can consent to the additions of members from other bands, s. 12 – Many bands will do this for status spouses for example Individuals can only belong to one band at any time, s. 13
  10. 10. Management of Reserve Lands Under s. 18, Reserve lands are legally held by the Crown for the “use and benefit” of Bands Under s. 20, Indians can be allocated “possession” of land in a Reserve by a Band Council Also under s. 20, Indians who are in lawful possession of a Reserve can receive a Certificate of Possession (CP) as proof There are two common forms of allocating possession of lands to members: – CP’s, which are ultimately governed by AANDC in accordance with the Indian Act – Custom Allocations, which are managed by the Band itself in accordance with Custom housing policy that it develops
  11. 11. Certificates of Possession The Band will normally be involved in helping to adminster CP’s, but CP holders maintain various rights that AANDC will honour as necessary AANDC requires CP lots to be surveyed CP’s cannot be transferred permanently to a non-member, s. 24 CP’s cannot be canceled without consent of the CP holder, s. 27 CP holders can lease their lands (see next slide for details)
  12. 12. Leasing CP Lands CP holders can apply to AANDC to lease their lands, s.58(3) AANDC will seek input from the Band council but not necessarily give the Council a veto right over leases AANDC will allow Band policy to direct how to share proceeds of CP leases AANDC believes leases of 49 years or over require a surrender/ designation The land can be leased in this way to non-members If a CP holder dies with a pre-paid lease in place, AANDC may require the new CP holder to continue to honor the lease – In this way, some CP holders are able to arrange for non- Aboriginal spouses to stay in a house on Reserve land after their death
  13. 13. Custom Housing Allocations Some bands have implemented their own housing policies based on what they consider to be traditional or custom authority The Indian Act does not specifically authorize such systems AANDC does not officially recognize authority for Bands to implement Custom land systems but does not challenge them either AANDC does not normally get involved in regards to transfers of Custom Lots A Member would have to check with its Band to determine their specific housing policy in regards to Custom Lots Most Bands with Custom land systems acknowledge that a valid CP holder cannot be deprived of it, so they still end up having both custom lots and CP lots
  14. 14. Wills & Estates If a status Indian was “ordinarily resident” on a Reserve at the time of his or her death, his or her will must be approved by AANDC If a person attempts to give rights in land on a Reserve, it must be transferred in accordance with the Indian Act Wills are covered by s. 45-47 of the Act Status Indians who die without a valid will (intestate) are covered by s. 48
  15. 15. Wills under the Indian Act The rules are less formal than the rules for wills under provincial law The will maker must: – be 19 or older – have mental capacity – prepare their will without undue influence or duress The will must: – be in writing (hand written or typed) – be signed by the will maker – give valid instructions for distributing their property
  16. 16. Intestate under the Indian Act•• Under s. 48 of the Indian Act, someone who died without a will would I have their property transferred to relatives in priority as follows: • Spouse: including common-law or same-sex partner • Children: if a child predeceased, grand-children or even great- grandchildren could inherit this share • Parents • Siblings• Property to a Reserve, such as a CP, would transfer to the first member of the same Band using the same priority• Nieces, Nephews, and Cousins cannot inherit from an estate without a will (also different from provincial law)
  17. 17. Absolute Surrenders Absolute surrenders are pretty much never done by bands anymore Under s. 37(1) & 38(1), lands in a reserve can be absolutely surrendered and then sold permanently to anyone by Canada and proceeds go to the band Under s. 39(1)(b), an absolute surrender cannot be done without consent from the membership by way of a vote Lands surrendered absolutely are not designated lands and are no longer reserve lands
  18. 18. Conditional Surrenders &Designations Conditionally surrendered lands can be designated lands and continue to be reserve lands for the most part, including for example for the purposes of taxation and band by-laws Some provisions of the Indian Act no longer apply to designated lands and are set out in the definition of “reserve” in the act Typical conditional surrenders involve long-term leases Historically, lands that are surrendered conditionally cannot be sold as fee simple lands on the open market (the First Nation Commercial and Industrial Development Act has recently been enacted and amended to change this for certain projects)
  19. 19. Surrenders and Votes Any surrender requires approval from band members by way of a vote For the first vote, a majority of members must vote yes to the surrender However, if they did not meet the minimum requirement of voters but the majority of people who did vote, voted yes, AANDC can allow a second vote For the second vote, there is no minimum number of voters required It is not uncommon for bands to have to hold two official votes and for the process to take several months
  20. 20. Granting Interests in Reserve lands tonon-Members Interests in reserve lands can only be granted to non-Members in the following ways: – Absolute or Conditional Surrenders, s. 37-41 – Expropriation, s. 35 – For certain kinds of development or resource harvesting of unused lands, s. 58 – Leases requested by CP holders, s. 58(4) – A temporary permit from AANDC, s. 28(2)
  21. 21. The Guerin Case The Musqueam First Nation surrendered reserve lands to be used for a golf club The courts found as fact that Canada, after the surrender, granted the lease to the golf club on less valuable terms than Musqueam had understood The Supreme Court of Canada ruled that the relationship between the Crown and First Nations is unique and although not strictly speaking a trust, it is trust-like and does create a fiduciary duty on the part of the Crown They ruled that Canada had breached its fiduciary duty by obtaining the less valuable lease after the surrender Musqueam were awarded $10 million
  22. 22. Expropriation Under s. 35 of the Indian Act, a government or corporation in Canada that has the authority to expropriate land can also do so from reserve lands in accordance with their authority For example, BC Hydro can expropriate in accordance with its authorities under the Hydro and Power Authority Act Expropriation now must also consider infringement of Aboriginal rights and title along with consultation and potential accommodation obligations
  23. 23. First Nations Land ManagementAct Select First Nations can participate in the FNLMA The First Nation develops a Land Code that is consistent with the basic requirements setup in the FNLMA The Land Code must be approved by the membership If successful, the Land Code replaces the various land management provisions of the Indian Act
  24. 24. Band Moneys The act differentiates between “capital moneys” which is any money made from the sale of surrendered lands or the sale of any of the band’s other capital assets “revenue monies” are all other revenues of the band, leases for example A list of allowable expenditures of capital monies is outlined in s. 61(2) and attempt generally to ensure expenditures are for the benefit of the band Allowable expenditures of revenue monies in s. 66(1) say simply that the expenditures “will promote the general progress and welfare of the band or any member of the band”
  25. 25. Managing Band Monies Generally, Canada receives and holds band monies for the benefit of the band Under s. 69, AANDC can allow bands to assume control of band monies themselves A band can apply and AANDC reviews the application considering among other things, the band’s history of financial responsibility
  26. 26. First Nations Oil & Gas & MoneyManagement Act (FNOGMA) The money management aspect of this legislation works much like the FNLMA but in regards to money instead of land The FN can develop a financial code in accordance with the FNOGMA If approved, the FN can take over managing their own band moneys in accordance with their code Provisions in the Indian Act in regards to band moneys would no longer apply
  27. 27. Programs and Services Funding Programs and services funding, including things such as governance funding, various kinds of capacity development funding and others, are all separate initiatives and really not governed under the Indian Act Refer to the AANDC’s BC Region Program Guide for more information on program funding
  28. 28. Elections of Chief & Council Under the Indian Act, elections for Chief and council must be held every 2 years, s. 78 Members can elect a chief councilor or elect councilors and allow the council to choose the chief councilor, s. 74(3)(a) Under the act, the default structure is 1 chief and 1 councilor for every 100 members but not less than 2 councilors and not more than 12, s. 74(2)
  29. 29. Custom Election Codes Some bands have developed their own rules for elections and structure of chief and council based on what they believe to be their custom authority The Indian Act does not specifically authorize bands to develop their own custom election codes The definition of “council of the band” does include a reference to bands who establish custom elections
  30. 30. Powers of Chief & Council The powers of Chief & Council are set out in s. 81- 86 Chief & Council can make various by-laws, including in regards to: – Taxation – Traffic – Conduct of people on reserve, including use of intoxicants – Construction and maintenance of reserves and infrastructure – Hunting and fishing By-laws only apply to reserve lands
  31. 31. First Nations Fiscal & StatisticalManagement Act (FNFSMA) The FNFSMA established the First Nations Tax Commission FN’s develop a tax regime in accordance with the FNFSMA and submit it to the Tax Commission If approved, the Tax Commission will assist the FN to implement their tax regime
  32. 32. Band Council Resolutions S. 1(3)(b) indicates the powers of Chief & Council cannot be exercised unless consented to by a majority of councilors at a meeting duly convened This generally takes the form of Band Council Resolutions or BCR’s AANDC strictly requires BCR’s before recognizing the authority of the chief and council to do things This can lead to issues when there are split councils The vote of the chief in regards to BCR’s is no different than the vote of another council member
  33. 33. Responsibilities of Chief &Council Chief & Council Members have been found to have a fiduciary duty to members of the band, see for example Silver v. Ned (2002) (B.C.S.C.) The act provides that Chief & Council members will be disqualified for conviction of an indictable offence and can be disqualified for conviction of a lesser offence, s. 78
  34. 34. Bands as Legal Entities The Indian Act does not indicate whether bands are legal entities or not The courts have been very reluctant to recognize bands as distinct legal entities, see for example Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), (2001) 4 FC 455 (FCA) For the purposes of participating in businesses and contracts this leaves the band in a situation where it must look to various complicated business models and consider taxation implications
  35. 35. Bands and the Charter Bands and band by-laws can be required to conform to the Charter of Rights and Freedoms, generally insofar as they are exercising their own authority, see for example Horse Lake First Nation v. Horseman (2003) (A.B.Q.B.)
  36. 36. Programs and ServicesDelegation Agreements Bands can enter into agreements with Canada or BC to take over providing various public services The Act neither authorizes nor denies these kinds of agreements Ultimate management and responsibility generally remains with Canada and BC The programs and services will have to be delivered in accordance with federal and provincial law
  37. 37. Tax Exemptions. 87(1) …“the following property is exempt from taxation: … (b) the personal property of an Indian or a band situated on a reserve. (2) No Indian or band is subject to taxation in respect of the ownership, occupation, possession or use of any property mentioned in paragraph (1)(a) or (b)…” In 1983, in Nowegijick v. the Queen, the Supreme Court of Canada ruled that the ‘personal property’ of an Indian in s. 87 included ‘income’
  38. 38. Provincial Laws and Indians As mentioned earlier, Indians and their lands are federal jurisdiction under s. 91(24) of the Constitution Act, 1867 Under s. 88 of the Indian Act, provincial laws of “general application” apply to Indians as long as they are consistent with the Indian Act As a result of this, some provincial laws have limited application to Indians on a reserve, including laws in regards to: – Matrimonial property – Residential tenancy – Wills and estates
  39. 39. The R v. Dick Decision In 1985, the Supreme Court of Canada ruled that provincial laws that have little to do with Indians and what it really means for someone to be an Indian do not interfere with federal jurisdiction and apply of their own force – The example they give is motor vehicle legislation Any provincial law that could be said to affect Indians as Indians, such as wildlife laws, will only apply if they qualify through s. 88 – Wildlife laws then for example cannot single out Indians in any way (they have general application), and they cannot be inconsistent with the Indian Act
  40. 40. Legal Protection of Indians Under s. 89 of the Indian Act, the property of an Indian or a band that is on a reserve is not subject to mortgage, seizure or other legal actions Indians and bands cannot get mortgages or loans using lands on reserve as collateral Indians can be sued, but recovering property from them can be challenging This makes it more difficult for Indians to use personal property as collateral for the purposes of mortgages and loans
  41. 41. Education Canada enters into agreements with School Boards in regards to providing education on Reserves, s. 114 Children on reserves have historically been funded less per capita than children off-reserves, see for example the November 2004 Report of the Auditor General of Canada (http://www.oag- 288.html)
  42. 42. Summary Bands that continue to operate under the Indian Act continue to be subject to management by AANDC Even where the Indian Act does not specifically require permission from AANDC, the crown’s fiduciary duty requires them to provide oversight New legislation, such as the First Nations Land Management Act and the First Nations Oil & Gas & Money Management Act allow some of the Indian Act to be replaced, but nothing but treaty replaces all of it Aboriginal rights and title are separate matters and only have incidental relations with the Indian Act