Indian Act and What It Means

INDIAN ACT AND WHAT IT MEANS

UNION OF BRITISH COLUMBIA INDIAN CHIEFS 200 - 73 Water Street, Vancouver, B.C. V6B 1A1 Telephone: (604) 684-0231 Fax: (604) 684-5726 UNION OF B.C. INDIAN CHIEFS

THE INDIAN ACT AND WHAT IT MEANS

THE LAW HADE POSSIBLE BY A GRANT FROM FOUNDATION OF BRITISH COLUMBIA

The Indian Act and What it means was interpreted by Nancy Sandy, UBC Native Law Student on contract by the Union of B.C. Indian Chiefs

Typed, printed and bound by Ms. Halie Bruce, Union of B.C. Indian Chiefs

UNION OF B.C. INDIAN CHIEFS 200 - 73 Water Street Vancouver, BC V6B 1A1

Telephone: (604) 684-0231 FAX: (604) 684-5726

THE INDIAN ACT AND WHAT IT MEANS

No part of this book may be reproduced or transmitted in any form by any means, electronically or mechanically, including photocopying and recording, or by any information storage or retrieval system, without written consent of the Union of B.C. Indian Chiefs. THE INDIAN ACT AND WHAT IT MEANS

INDEX

SUBJECT SECTION PAGE

ADMINISTRATION 3 (1) 6

APPLICATION OF ACT 4 (1) 7

DEFINITION AND REGISTRATION OF INDIANS 5 (1) - 14

Indian Register 5 (1) - 7 (3) 12 - 17 Band Lists 8 - 13 18 - 29 Notice of Band Lists 14 (1) - 14 (3) 30 Inquiries 14.1 31 Protests 14.2 - 14.3 31 - 35 Payments in Respect of Persons Ceasing to be Band Members 15 - 16 36 - 37 New Bands 17 37 - 38

RESERVES 18 - 19 38 - 40

POSSESSION OF LANDS IN RESERVES 20 - 29 40 - 46

TRESPASS ON RESERVES 30 - 31 47 - 48

SALE OR BARTER OF PRODUCE 32 - 33 48 - 49 ROADS AND BRIDGES 34 49 - 50

LANDS TAKEN FOR PUBLIC PURPOSES 35 50 - 51

SPECIAL RESERVES 36 52

SURRENDERS 37 - 41 52 - 56

DESCENT OF PROPERTY 42 - 44 56 - 59

WILLS 45 - 46 60 - 62

APPEALS 47 62

- i - SUBJECT SECTION PAGE

DISTRIBUTION OF PROPERTY ON INTESTACY 48 - 50 63 - 70

MENTALLY INCOMPETENT INDIANS 51 70 - 72

GUARDIANSHIP 52 72

MANAGEMENT OF RESERVES AND SURRENDERED LANDS 53 - 60 72 - 80

MANAGEMENT OF INDIAN MONIES 61 - 69 81 - 91

LOANS TO INDIANS 70 91 - 93

FARMS 71 94

TREATY MONEY 72 94

REGULATIONS 73 95 - 97

ELECTIONS OF CHIEFS AND BAND COUNCILS 74 - 80 97 - 104

POWERS OF COUNCIL 81 - 86 104 - 114

TAXATION 87 114 - 115

LEGAL RIGHTS 88 - 90 116 - 11

TRADING WITH INDIANS 91 - 92 118 - 121

REMOVAL OF MATERIALS FROM RESERVES 93 121 - 122

OFFENCES 101 - 102 122 - 123

FORFEITURES AND PENALTIES 103 - 108 123 - 128

SCHOOLS 114 - 123 128 - 136

PRIOR GRANTS 124 137

* * *

- ii - UN ION OF B.C. INDIAN CHIEFS 1

INDIAN ACT AND WHAT IT MEANS

Chapter 1 - 6

An Act Respecting Indians

Short Title

Section 1 Section 1

This Act may be cited as the This Act can be called the Indian Act. Indian Act.

INTERPRETATION

Section 2 (1) Section 2 (1)

In this Act, In this Act the following words have the meanings that are given them in this section,

"band" means a body of "band" means a group of Indians Indians

(a) for whose use and (a) who share the use and benefit in common, lands, benefit of reserve lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after the 4th day of September 1951,

(b) for whose use and (b) who share moneys held by benefit in common, moneys the Department of Indian are held by Her Majesty, or Affairs and Northern Develop• ment (the Department), or

(c) declared by the Governor (c) a group of Indians which in Council to be a band for the federal cabinet has said the purposes of this Act; is a band;

"Band List" means a list of "Band List" means a list of persons that is maintained persons kept by a band or in under Section 8 by a band or the Department pursuant to In the Department; Section 8 (8and Lists); 2

"child" includes a child "child" includes a child bor born in or out of wedlock a in or out of wedlock, an legally adopted child and a Indian or non-Indian child child adopted in accordance legally adopted and an Indian with Indian custom; or a non-Indian child adopted in accordance with Indian custom.

"council of the band" means "council of the band" means

(a) in the case of a band to (a) either a council elected which Section 74 applies, under the election provisions the council established in Sections 74 to 80, or pursuant to that section,

(b) in the case of a band to (b) a council, or chief which Section 74 does not chosen according to band apply, the council chosen custom; 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;

See, "Indian Bands Election Regulations", C.R.C. 1978, c. 952 and "Indian Band Election Order", C.R.C. 1978, c. 951.

"Department" means the "Department" means the Department of Indian Affairs Department of Indian Affairs and Northern Development; and Northern Development;

"elector" means a person who "elector" means a person who is

(a) is registered on the (a) registered on a Band Band List, List,

(b) is of the full age of (b) aged 18 or more; and eighteen years and

(c) is not disqualified from (c) can vote in band voting at band elections; elections (that is, somebody who usually lives on reserve);

"estate" includes real and "estate" means everything a personal property and any person owns--land, leases, interest in land; money, car, house, furniture, television, clothes and so on; 3

"Indian" means a person who "Indian" means a person who pursuant to this Act is is registered as an Indian, registered as an Indian or or a person who is entitled is entitled to be registered to be registered as an Indian as an Indian; on the Indian register kept by the Department (Definition and Registration of Indians Section 5 through 14);

"Indian moneys" means all "Indian moneys" means any moneys collected, received money collected, received or or held by Her Majesty for held by the federal the use and benefit of government for the use and Indians or bands; benefit of individual Indians or Indian bands;

"Indian Register" means the "Indian Register" means the register of persons that is list of persons that is maintained under Section 5; maintained by the Department under Section 5 where the name of every person who is entitled can be registered as an Indian;

"intoxicant" includes "intoxicant" means anything alcohol, alcoholic, that people can drink which spirituous, vinous, will make them drunk, and it fermented malt or other includes such things as intoxicating liquor or methylated spirits and combination of liquors and vanilla extract; mixed liquor a part of which is spirituous, vinous, fermented or otherwise intoxicating and a 1 1 drinks or drinkable liquids and all preparations or mixtures capable of human consumption that are intoxicating; 4

"member of a band" means a "member of a band" means a person whose name appears on person whose name is on a a Band List or who is Band List kept by a band who entitled to have his name has control of their Band appear on a Band List; Lists/Membership, or if a band does not have control of their Band Lists/Membership, then on the Band List kept by the Department, or who is entitled to have his name on those lists (see, Section 8 - Band Lists);

"mentally incompetent "mentally incompetent Indian" Indian" means an Indian who, means an Indian, who because pursuant to the laws of the of the state of his mind, province in which he cannot look after his own resides, has been found to business and according to be mentally defective or provincial law the Court incompetent for the purposes declares the person to be of any laws of that province incapable; providing for the administration of estates of mentally defective or incompetent persons;

"Minister" means the "Minister" means the Minister Minister of Indian Affairs of Indian Affairs and and Northern Development; Northern Development;

"registered" means "registered" means registered registered as an Indian in as an Indian in the Indian the Indian Register; Register kept by the Department;

"Registrar" means the "Registrar" means the officer of the Department Department official in charge who is in charge of the of the Indian Register and Indian Register and the Band the Departmental Band Lists; List maintained In the Department; 5

"reserve" means a tract of "reserve" means a piece of land, the legal title of land legally held by the which is vested in Her federal government, but which Majesty, that has been set has been set aside for the apart by Her Majesty for the use and benefit of an Indian use and benefit of a band; band;

"superintendent" includes a "superintendent" includes a commissioner, regional commissioner, regional supervisor, Indian supervisor, Indian superintendent, assistant superintendent, assistant Indian superintendent and Indian superintendent, and any other person declared by any other person the the Minister to be a Minister says is a superintendent for the superintendent; purposes of this Act, and with reference to a band or a reserve, means the superintendent for that band or reserve;

"surrendered lands" means a "surrendered lands" means any reserve or part of a reserve piece of reserve land or any interest therein, the (including, for example, legal title of which remains minerals) that has been vested In Her Majesty, that surrendered by the band that has been released or had the use and benefit of surrendered by the band for it, but to which the federal whose use an benefit it was government still retains set apart. legal title.

Section 2 (2) Section 2 (2)

The expression "band" with When the word "band" is used reference to a reserve or in connection with a reserve surrendered lands means the or surrendered lands it then band for whose use and means the band for whose use benefit the reserve or the and benefit the reserve or surrendered lands were set surrendered lands were set apart. apart. 6

Section 3 Section 3

Unless the context otherwise requires or this Act otherwise provides

(a) a power conferred upon a (a) Generally speaking, when band shall be deemed not to a band is given the power to be exercised unless it is do something it cannot act exercised pursuant to the unless a majority of the band consent of a majority of the electors have agreed; and electors of the band; and

(b) a power conferred upon (b) Generally speaking, when the council of a band shall a band council is given the be deemed not to be power to do something it exercised unless it is cannot act unless the exercised pursuant to the majority of the band consent of a majority of the councillors have agreed at a councillors of the band properly called band council present at a meeting of the meeting. council duly convened.

ADMINISTRATION

Section 3 (1) Section 3 (1)

This Act shall be This Act shall be administered by the Minister administered by the Minister of Indian Affairs and of the Department who is also Northern Development, who the superintendent general of shall be the superintendent Indian affairs. general of Indian affairs. 7

Section 3 (2) Section 3 (2)

The Minister may authorize The Minister can give the the Deputy Minister of Deputy Minister or the head Indian Affairs and Northern of the Indian affairs section Development or the chief authority to exercise the officer in charge of the Ministers powers under this branch of the Department Act. relating to Indian affairs to perform and exercise any of the duties powers and functions that may be or are required to be performed or exercised by the Minister under this Act or any other Act of the Parliament of Canada relating to Indian affairs.

See, the Department of Indian Affairs and Northern Development Act, R.S. c.1 - 7.

APPLICATION OF THIS ACT

Section 4 (1) Section 4 (1)

A reference in this Act to The Inuit (Eskimo) do not an Indian does not include come under the Indian Act. any person of the race of aborigines commonly referred to as Inuit. 8

Section 4 (2) Section 4 (2)

The Governor in Council may The federal cabinet can make by proclamation declare that a proclamation (actually an this Act or any portion Order in Council which is a thereof, except Sections 5 recorded decision of the to 14.3 or Sections 37 to federal cabinet that will 41, shall not apply to: normally be printed in the Canada Gazette) saying that (a) any Indian or any group the Indian Act or any part of or band of Indians, it doesn't apply to some Indians or some band or a (b) any reserve or any reserve or part of a reserve. surrendered lands or any However, the federal cabinet part thereof, cannot say that Sections 5 to 14.3 (Definition and and may by proclamation Registration of Indians) or revoke any such declaration. Sections 37 to 41 (Surrenders) don't apply. The federal cabinet can also cancel any proclamation it has made.

Section 4 (2.1) Section 4 (2.1)

For greater certainty, and The federal cabinet shall be without restricting the deemed to have the authority generality of subsection to make any declaration with (2), the Governor in Council respect to Sections 11, 12, shall be deemed to have had or 14 as immediately prior to the authority to make any April 17, 1985. For declaration under subsection example, where before Bill C- (2) that he has made in 31 there was a declaration respect of section 11, 12, that Section 12(1)(b) did not or 14, or any provision apply to a Band, that thereof, as each section or declaration is valid provision read immediately prior to April 17, 1985. 9

Section 4 (3) Section 4 (3)

Sections 114 to 123 and, Sections 114 to 123 (Schools) unless the Minister and unless the Minister says otherwise orders, Sections otherwise Sections 42 to 52 42 to 52 do not apply to or (Descent of Property) do not in respect of any Indian who apply to an Indian who does not ordinarily reside normally doesn't live on a on a reserve or on lands reserve or on lands belonging belonging to Her Majesty in to the federal or provincial right of Canada or a governments. province.

Section 4.1 Section 4.1

A reference to an Indian in A reference to an Indian the definitions "band" shall be deemed to include a "Indian moneys" and reference to any person who "mentally incompetent" in is entitled to have his name Section 2 or a reference to entered in a Band List and an Indian in Subsection 4(2) whose name has been entered or (3), 31 (1 ) or (3), therein in each of the Subsection 35(4), Section following sections: 51, Section 52, Subsection 58(3), Subsection 61(1), Section 2 Interpretations - Section 63, Section 65, in the definition of "band" Subsection 66(2), Subsection "Indian moneys" and "mentally 70(1) or (4), Section 71, incompetent Indian". Paragraph 73(g) or (h), Subsection 74(4), Section Subsection 4(2) or (3) 84, Paragraph 87(a), Section Application of Act. 88, Subsection 89(1) or Paragraph 107(b) shall be Section 18 (2) Reserves - deemed to include a Use of for schools. reference to any person who is entitled to have his name Section 20 Possession of entered in a Band List and Lands in reserves. whose name has been entered therein. Sections 22 to 25 Improvements on lands; Compensation for improvements; Transfer of possession, and Indian ceasing to reside on reserve. 10

(Section 4.1 cont'd)

Section 31(1) or (3) Trespass on Reserves - Information by Attorney General or Existing remedies preserved.

Section 35(4) Lands Taken for Public Purposes - Payment.

Section 51 Mentally Incompetent Indians.

Section 52 Guardianship.

Section 58(3) Management of Reserves and Surrendered Lands - Lease at the request of occupant.

Section 61(1) Management of Indian Moneys - Indian moneys to be held for use and benefit.

Section 63 Payments to Indians.

Section 65 Expenditure of capital.

Section 66(2) Minister may direct expenditure.

Section 70(1) or (4) Loans to Indians or Repayment.

Section 71 Farms.

Section 73(g) or (h) Regulations - to provide medical treatment and health services for Indians or to provide compulsory hospitalization and treatment for infectious diseases among Indians. 11

(section 4.1 cont'd)

Section 74(4) Elections of Chiefs and Band Councils - Electoral sections.

Section 84 Powers of the Council - recovery of taxes.

Section 87(a) Taxation - Property exempt from taxation.

Section 88 Legal Rights - General provincial laws applicable to Indians.

Section 89(1) Property on reserve not subject to alienation.

Section 107(b) Forfeiture and Penalties - Appointment of justices shall refer to any person who is entitled to have his name on a Band List. 12

DEFINITION AND REGISTRATION OF INDIANS

Indian Register

Section 5 (1) Section 5(1)

There shall be maintained in The Department shall keep an the Department an Indian Indian Register which lists Register in which shall be the name of every person who recorded the name of every is entitled to be registered person who Is entitled to be as an Indian under this Act. registered as an Indian under this Act.

Section 5 (2) Section 5 (2)

The names in the Indian The names of all Indians in Register immediately prior the Indian Register prior to to Apri1 17, 1985 shall Apri1 17, 1985 shall be in constitute the Indian the Indian Register on April Register on April 17, 1985. 17, 1985.

Section 5 (3) Section 5 (3)

The Registrar may at any The Registrar can add or time add to or delete from remove the name of any person the Indian Register, the who is entitled or not name of any person who, In entitled according to the accordance with this Act, is rules In the Indian Act to entitled or not entitled as have his name included in the the case may be, to have his Indian Register. name included in the Indian Register.

Section 5 (4) Section 5 (4)

The Indian Register shall The Indian Register shall indicate the date on which show the date when each was each name was added thereto entered or removed. or deleted therefrom. 1 3

Section 5 (5) Section 5 (5)

The name of a person who is The name of a person entitled entitled to be registered is to be registered in the not required to be recorded Indian Register isn't in the Indian Register required to register unless unless an application for an application of registration is made to the registration is made to the Registrar. Registrar.

Section 6(1) Section 6 (1)

Subject to Section 7, a Subject to Section 7 (persons person entitled to be not entitled to be registered if registered), a person can be registered if

(a) that person was (a) that person had been registered or entitled to be registered before April 17, registered immediately prior 1985; to April 17, 1985;

(b) that person is a member (b) that person is a member of a body of persons that of a band the federal cabinet has been declared by the has declared as a band for Governor in Council on or the purposes of this Act. after April 17, 1985 to be a band for the purposes of this Act; 14

(Section 6(1) cont'd) (Section 6(1) cont'd)

(c) the name of that person (c) the name of that person was omitted or deleted from had been taken off the Indian the Indian Register, or from Register or band list and a band list prior to lost Indian status because of September 4, 1951, under the double mother rule Subparagraph 12(1)(a)(iv), (Subparagraph 12 (1) (a) Paragraph 12(1) (b) or (iv)), marriage by an Indian Subsection 12(2) or under woman to a non-Indian male Subparagraph 12(1)(a)(iii) (Paragraph 12 (1) (b)), a pursuant to an order made successful protest because of under Subsection 109(2), as illegitimacy (Subsection 12 each provision read (2)) or by enfranchisement immediately prior to April (Subparagraph 12 (1) (a) 17, 1985, or under any (iii)) pursuant to an order former provision of this Act made under Subsection 109 relating to the same (2). subject-matter as any of those provisions;

(d) the name of that person (d) the name of that person was omitted or deleted from had been taken off the Indian the Indian Register, or from Register or band list a a band list prior to lost Indian status because he September 4, 1951, under became enfranchised Subparagraph 12(1)(a) (i i i) (Subparagraph 12 (1) (a) pursuant to an order made (iii)) pursuant to an order under Subsection 109(1), as made where an Indian has each provision read applied for enfranchisement immediately prior to April (Subsection 109 (1)). 17, 1985, or under any former provision of this Act relating to the same subject matter as any of those provisions ; 15

(Section 6 (1) cont'd) (Section 6(1) cont'd)

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

(i) under Section 13, as it (i) because that person read immediately prior to lived outside of Canada for 5 September 4, 1951, or under years without the Minister's any former provision of this permission, or Act relating to the same subject-matter as that section, or

(ii) under Section 111, as (ii) because that person it read immediately prior to acquired enfranchisement by July 1, 1920, or under any obtaining a university degree former provision of this Act (i.e., degree in medicine or relating to the same law) subject-matter as that section; or

(f) that person is a person (f) that person's parents both of whose parents are or are both entitled to if, no longer, living, were registration, or if no longer at the time of death living, at the time of their entitled to be registered death, were entitled to under this section. registration.

Section 6 (2) Section 6 (2)

Subject to Section 7 , a Subject to Section 7 (persons person is entitled to be not entitled to be registered if that person is registered) a person is a person one of whose entitled to registration if parents is or, if no longer one of that person's parents, living, was at the time of or if no longer living, was death entitled to be at the time of death, registered under Subsection entitled to registration (1). under Subsection 6(1). 16

Section 6 (3) Section 6 (3)

For the purposes of Paragraph (1) (f) and Subsection (2),

(a) a person who was no (a) For the purposes of longer living immediately Paragraph (1) (f) and prior to April 17, 1985 but Subsection (2) a person who who was at the time of death died prior to April 17, 1985, entitled to be registered but at the time of his death shall be deemed to be was entitled to registration entitled to be registered shall be entitled to be under Paragraph (1) (a); and registered under Paragraph (1) (a); and

(b) a person described In (b) a person described in Paragraph (1) (c), (d) or Paragraph (1) (c), (d) or (e) who was no longer living (e) (the reinstatement on April 17 , 1985 shall be sections), but who died deemed to be entitled to be before April 17, 1985 shall registered under that be entitled to registration paragraph. under those paragraphs.

Section 7 (1) Section 7 (1)

The following persons are The following persons are not not entitled to be entitled to registration: registered:

(a) a person who was (a) a person who was the registered under Paragraph wife or widow of a male 11(1) (f), as read Indian and thus acquired immediately prior to April status and had been 17, 1985, or under any registered as an Indian former provision of this Act (Paragraph 11 (1) (f)), but relating to the same whose name was subsequently subject-matter as that taken off the Indian paragraph, and whose name register; or was subsequently omitted or deleted from the Indian Register under this Act; or 17

(Section 7 (1) cont'd) (Section 7(1) cont'd)

(b) a person who is the (b) a person who is the child of a person who was child of the wife or widow of registered or entitled to be a male Indian, and thus registered under Paragraph acquired status and had been 11 (1) (f), as it read registered (Paragraph 11 (1) immediately prior to April (f)), and is also the child 17, 1985, or under any of a non-Indian male. former provision of this Act relating to the same subject-matter as that paragraph, and is also the child of a person who is not entitled to be registered.

Section 7 (2) Section 7 (2)

Paragraph (1) (a) does not Disentitlement under apply in respect of a female Paragraph (1) (a) doesn't person who was, at any time apply to a female person, who prior to being registered before being registered as under Paragraph 11 (1) (f), the spouse of a registered entitled to be registered male Indian (Paragraph 11 (1) under any other provision of (f)) was entitled to this Act. registration in her own right under any other provision of this Act.

Section 7 (3) Section 7 (3)

Paragraph (1) (b) does not Disentitlement under apply in respect of the Paragraph (1) (b) doesn't child of a female person who apply to a child of a female was, at any time prior to person who before being being registered under registered as the spouse of a Paragraph 11 (1) (f), registered male Indian entitled to be registered (Paragraph 11 (1) (f)) was under any other provision of entitled to be registered in this Act. her own right under any other provision of this Act. 1 8

BAND LISTS

Section 8 Section 8

There shall be maintained in Following the rules of this accordance with this Act for Act a Band List shall be kept each band a Band List in for each band listing the which shall be entered the name of every person who is a name of every person who is member of that band. a member of that band.

Section 9 (1) Section 9(1)

Until such time as a band Until a band takes control of assumes control of its Band its Band List the Band List List, the Band List of that will be kept in the band shall be maintained in Department by the Registrar. the Department by the Registrar,

Section 9 (2) Section 9 (2)

The names in a Band List of The names in a Band List a band immediately prior to before April 17, 1985 shall April 17, 1985 shall be the Band List as of April constitute the Band List of 17, 1985. that band on April 17, 1985.

Section 9 (3) Section 9 (3)

The Registrar may at any The Registrar can at any time time add to or delete from a add to or remove from a Band Band List maintained in the List which is kept by the Department the name of any Department the name of any person who, in accordance person entitled to or not with this Act, is entitled entitled to have his name on or not entitled, as the case a Band List. may be to have his name Included in that List.

Section 9 (4) Section 9 (4)

A Band List maintained in At band List kept by the the Department shall Department shall show the indicate the date on which date when each name had been each name was added thereto entered or removed. or deleted therefrom. 19

Section 9 (5) Section 9 (5)

The name of a person who is The name of a person entitled entitled to have his name to have his name on a Band entered in a Band List List doesn't have to be maintained in the Department entered unless he makes an is not required to be application to the Registrar. entered therein unless an application for entry therein is made to the Registrar.

Section 10 (1) Section 10 (1)

A band may assume control of A band can take control of its own membership if it its own membership if the establishes membership rules band establishes membership for itself in writing in rules in writing and if, accordance with this section after giving appropriate and if, after the band has notice of its intention to given appropriate notice of assume control of its Its intention to assume membership, a majority of the control of its own band electors (age 18 and membership, a majority of over) give their consent to the electors of the band such control. gives its consent to the band's control of its own membership.

Section 10 (2) Section 10 (2)

A band may, pursuant to the A band can with the consent consent of a majority of the of a majority of the band electors of the band, electors,

(a) after it has given (a) after it has given appropriate notice of its appropriate notice of its intention to do so, intention to do so, make establish membership rules membership rules for itself; for itself; and and

(b) provide for a mechanism (b) provide a means of for reviewing decisions on reviewing decisions on band membership membership. 20

Section 10 (3) Section 10 (3) When a band council makes a Where the council of a band by-law (Paragraph 81 (1) makes a by-law under (p.4)) to bring this Paragraph 81 (1) (p.4) Subsection (10(3)) into bringing this subsection effect the consents required into effect in respect of under Subsection (1) and (2) the band, the consents has to be by a majority of required under Subsections the band members (rather than (1) and (2) shall be given band electors) who are 18 by a majority of the members years and over. of the band who are of the full age of eighteen years.

Section 10 (4) Section 10 (4) If a person had the right to Membership rules established have his name entered on a by a band under this section band's Band List before the may not deprive any person membership rules were made, who had the right to have then those membership rules his name entered in the Band cannot deny that person the list for that band, right to have his name immediately prior to the entered on the Band List time the rules were because of a situation that established, of the right to existed or an action taken have his name so entered by before the rules came into reason only of a situation effect (see Subsection 5). that existed or an action that was taken before the rules came into force. Section 10 (5) Section 10 (5) For example, band membership For greater certainty, rules cannot disentitle a Subsection (4) applies in person to membership who was respect of a person who was entitled to have his name entitled to have his name entered on a Departmental entered in the Band List Band List (Subsection 11 (1) under Paragraph 11 (1) (c) (c)) prior to a band assuming immediately before the band control of its Band List, If assumed control of the Band that person was entitled to List if that person does not reinstatement because that subsequently cease to be person lost Indian status entitled to have his name because of the double mother entered In the Band List. rule, marriage to a non- Indian male, illegitimacy or enfranchisement (Paragraph 6 (1) (c). 21

Section 10 (6) Section 10 (6)

Where the conditions set out After a band has given in Subsection (1) have been appropriate notice to its met with respect to a band, band members of its intention the council of the band to assume control of its own shall forthwith give notice membership, and has the to the Minister in writing consent of a majority of the that the band is assuming band electors to assume control of its own control, and after the band membership and shall provide has established written the Minister with a copy of membership rules the band the membership rules for the council must immediately give band. written notice to the Minister of its Intent to assume control of band membership, and has to give the Minister a copy of the band's membership rules

Section 10 (7) Section 10 (7)

On receipt of a notice from After the Minister has the council of a band under received notice from a band Subsection (6), the Minister council of its Intent to shall. If the conditions set assume control of membership out in Subsection (1) have and has received a copy of been complied with, the band's membership rules, forthwith and the band has met all the conditions necessary to assume control of its own (a) give notice to the band membership then the Minister that it has control of its must give notice to the band own membership; and that it has control over its own membership, and must direct the Registrar to give (b) direct the Registrar to the band a copy of Its Band provide the band with a copy List kept by the Department. of the Band List maintained by the Department, 22

Section 10 (8) Section 10 (8)

Where a band assumes control When a band assumes control of its own membership under of its membership their this section, the membership membership rules take effect rules established by the on the day notice was given band shall have effect from to the Minister. Any the day on which notice is changes made to the Band List given to the Minister under by the Registrar on or after Subsection (6), and any that day are invalid unless additions to or deletions the changes comply with the from the Band List of the band's membership rules. band by the Registrar on or after that day are of no effect unless they are in accordance with the membership rules established by the band.

Section 10 (9) Section 10 (9)

A band shall maintain its A band shall keep its own own Band List from the date Band List on the day it on which a copy of the Band receives a copy of the Band List is received by the band List from the Registrar and, under Paragraph 7 (b), and, unless the band later decides subject to Section 13.2, the to leave control of its Band Department shall have no List to the Department further responsibility with (Section 13.2), and the respect to that Band List Department won't have any from that date. further responsibility for that band's Band List.

Section 10 (10) Section 10 (10)

A band may at any time add According to its band to or delete from a Band membership rules a band can List maintained by it the at any time add to or remove name of any person who, in from its Band List the name accordance with the of any person who is entitled membership rules of the or not entitled to have his band, is entitled or not name on that list. entitled, as the case may be, to have his name included in that list. 23

Section 10 (11) Section 10 (11)

A Band List maintained by a A Band List kept by a band band shall indicate the date shall show the date each name on which each name was added had been added to or removed thereto or deleted from the Band List. therefrom.

Section 11 (1) Section 11 (1)

Commencing on April 17, Beginning April 17, 1985 a 1985, a person is entitled person is entitled to have to have his name entered in his name entered in a Band a Band List maintained in List kept in the Department the Department for a band if if

(a) the name of that person (a) that person's name had was entered In the Band List already been entered in that for that band, or that Band List, or that person was person was entitled to have entitled to have his name on his name entered in the Band that Band List before April List for that band, 17, 1985 immediately prior to April 17, 1985;

(b) that person is entitled (b) that person is entitled to be registered under to registration because he is Paragraph 6 (1) (b) as a a member of a band declared member of that band; to be a band by the federal cabinet (Paragraph 6 (1) (b));

(c) that person is entitled (c) that person is entitled to be registered under to registration if that Paragraph 6 (1) (c) and person lost band membership ceased to be a member of because of the double mother that band by reason of the rule, by marriage to a non- circumstances set out in Indian male, under the that paragraph; or protest section with respect to illegitimacy or by enfranchisement (Paragraph 6 (1) (c)); or 24

(Section 11 (1) cont'd)

(d) that person was born on (d) that person was born on or after April 17, 1985 and or after April 17, 1985 and is entitled to be registered is entitled to registration under Paragraph 6 (1) (f) because both parents were and both parents of that entitled to have their names person are entitled to have entered in the Band List or, their names entered in the if no longer alive, they were Band List or, if no longer both before death entitled to living, were at the time of have their names entered in death entitled to have their the Band List. names entered in the Band List.

Section 11 (2) Section 11 (2)

Commencing on the day that After June, 1987, or earlier is two years after the day if a band has decided to that an Act entitled An Act leave control of its Band to amend the Indian Act, List with the Department, a introduced In the House of person is entitled to have Commons on February 28, his name entered in the 1985, is assented to, or on Departmental Band List 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 (a) if that person is entitled to be registered entitled to registration under Paragraph 6 (1) (d) or because that person lost band (e) and ceased to be a membership through member of that band by enfranchisement (Paragraph 6 reason of circumstances set (1) (d) or (e); or out in that paragraph; or 25

(Section 11 (2) cont'd)

(b) if that person is (b) if that person is a entitled to be registered person whose parents are under Paragraph 6 (1) (f) or entitled to registration, or Subsection 6 (2) and a if no longer living, were at parent referred to in that their time of their death provision is entitled to entitled to have their names have his name entered in the entered in the Band List Band List or, if no longer (Paragraph 6(1)(f); or if living, was at the time of only one parent is entitled death entitled to have his to have his name entered in name entered in the Band the Band List, or if no List. longer living, was at the time of death entitled to have his name entered in the Band List (Subsection 6(2)).

Section 11 (3) Section 11 (3)

For the purposes of Where a person has lost band Paragraph (1) (d) and membership through Subsection (2), a person enfranchisement and where a whose name was omitted or person's parents or parent deleted from the Indian was entitled to be entered in Register or a band list in a Band List, and the parents the circumstances set out in or parent are no longer Paragraph 6 (1) (c), (d) or living, but were at the time (e) who was no longer living of death entitled to be on the first day on which he entered in a Band List; and would otherwise be entitled where a person who lost to have his name entered in Indian status because of the the Band List of the band of double mother rule, by which he ceased to be a marriage to a non-Indian member shall be deemed to be male, under the protest entitled to have his name so section with respect to entered. illegitimacy, or by enfranchisement, who was no longer living on the first day when he would have been entitled to have his name entered in the Band List of the band where he lost band membership shall be deemed to be entitled to have his name so entered. 26

Section 11 (4) Section 11 (4)

Where a band amalgamates Where a band amalgamates with with another band or is another band or is divided to divided so as to constitute make a new band, any person new bands, any person who who would have been entitled would otherwise have been to have his name entered in entitled to have his name the Band List of that band entered in the Band List of can have his name on the Band that band under this section List of the amalgamated band is entitled to have his name or the new band to which he entered in the Band List of has the closest family ties. the amalgamated band or the new band to which he has the closest family ties, as the case may be.

Section 12 Section 12

Commencing on the day that After June, 1987, or at an is two years after the day earlier date where a band that an Act entitled An Act decides to leave control of to amend the Indian Act, its Band List with the introduced In the House of Department (Section 13.1) any Commons on February 28, person who 1985, is assented to, or on such earlier day as may be agreed to under Section 13.1 any person who

(a) is entitled to be (a) is entitled to be registered under Section 6, registered as an Indian but is not entitled to have (Section 6), but isn't his name entered in the Band entitled to have his name List maintained in the entered in the Departmental Department under Section 11, Band List (Section 11) , or or

(b) is a member of another (b) is a member of another band, is entitled to have band, can have his name his name entered In the Band entered in the Departmental List maintained in the Band List if the band council Department for a band if the of the admitting band council of the admitting consents. band consents. 27

Section 13 Section 13

Notwithstanding Sections 11 Despite membership rules for and 12, no person is Departmental Band Lists entitled to have his name (Section 11} and entitlement entered at the same time in to be listed on a Band List more than one Band List with a band council's consent maintained in the (Section 12), no person can Department. have his name entered on more than one Departmental Band List.

Section 13.1 (1) Section 13.1 (1)

A band may at any time prior Between June, 1985 and June, to the day that is two years 1987 a band can, with the after the day that an Act consent of the majority of entitled An Act to amend the the band electors, decide to Indian Act, introduced In leave control of its Band the House of Commons on List with the Department. February 28, 1985, is assented to, decide to leave the control of its Band List with the Department if a majority of the electors of the band gives its consent to that decision.

Section 13.1 (2) Section 13.1 (2)

Where a band decides to When a band decides to leave leave the control of its control of its Band List with Band List with the the Department the band Department under Subsection council shall immediately (1), the council of the band give written notice to the shall forthwith give notice Minister. to the Minister in writing to that effect. 28

Section 13.1 (3) Section 13.1 (3)

Notwithstanding a decision Despite a band's decision to under Subsection (1), a band leave control of its Band may, at any time after that List with the Department the decision is taken, assume band can later take control control of its Band List over its Band List under under Section 10. Section 10.

Section 13.2 (1) Section 13.2 (1)

A band may, at any time After assuming control of its after assuming control of Band List a band can later its Band List under Section decide to return control of 10 decide to return control its Band List to the of the Band List to the Department if a majority of Department if a majority of the band electors consent. the electors of the band gives its consent to that decision.

Section 13.2 (2) Section 13.2 (2)

Where a band decides to When a band decides to return return control of its Band control of its Band List to List to the Department under the Department, the band Subsection (1), the council council shall immediately of the band shall forthwith give written notice of their give notice to the Minister intention to do so to the in writing to that effect Minister. The band council and shall provide the must also provide the Minister with a copy of the Minister with a copy of all Band List and a copy of all their membership rules the membership rules that established while they had were established by the band control over their Band List. under Subsection 10(2) while the band maintained its own Band List. 29

Section 13.2 (3) Section 13.2 (3)

Where a notice is given When notice is given of a under Subsection (2) in band's decision to return respect of a Band List, the control of its Band List to maintenance of that Band the Department the Department List shall be the will be responsible for that responsibility of the Band List from the date on Department from the date on which they received the which the notice is received notice. The Band List will from that time the Band List then be kept in accordance shall be maintained in with the membership rules in accordance with the Section 11. membership rules set out in Section 11.

Section 13.3 Section 13.3

A person is entitled to have A person is entitled to have his name entered in a Band his name entered in the List maintained in the Departmental Band List if his Department pursuant to name had been entered on the Section 13.2 if that person Band List according to the was entitled to have his band's membership rules name entered and his name before the band returned was entered, in the Band control of its Band List to List immediately before a the Department. That is the copy of it was provided to case whether or not that the Minister under person is entitled to have Subsection 13.2 (2), whether his name entered according to or not that person Is also membership rules for the entitled to have his name Departmental Band List. entered in the Band List under Section 11. 30

NOTICE OF BAND LISTS

Section 14 (1) Section 14 (1)

Within one month after the One month after the 1985 day an Act entitled An Act amendment to the Indian Act to amend the Indian Act, has become law the Registrar introduced In The House of shall provide each band Commons on February 28, council with a copy of the 1985, is assented, the Band List as it stood Registrar shall provide immediately before that day. the council of each band with a copy of the Band List for the band as it stood immediately prior to that day.

Section 14 (2) Section 14 (2)

Where a Band List is Where the Department has maintained by the maintained control of a Band Department, the Registrar List the Registrar must at shall, at least once every least once every two month two months after a copy of provide the band council wit the Band List is provided to an updated list that includes the council of a band under changes made to the previous Subsection (1), provide the Band List. council of the band with a list of the additions to or deletions from the Band List not Included in a list previously provided under this subsection.

Section 14 (3) Section 14 (3)

The council of each band As Soon as a band council shall, forthwith on receives a copy of a Band receiving a copy of the Band List under Subsection (1) or List under Subsection (1), an updated Band List under or a list of additions to Subsection (2) it must post and deletions from its Band the copy or updated list in List under Subsection (2), an obvious place on the post the copy of the list, reserve. as the case may be, in a conspicuous place on the reserve of the band. 31

INQUIRIES

Section 14.1 Section 14.1 When any person or a person The Registrar shall, on he represents believes he is Inquiry from any person who entitled to be entered on the believes he or any person he Indian Registrar or represents is entitled to Departmental Band List the have his name included in Registrar must tell the the Indian Register or a person inquiring whether or Band List maintained in the not that person's name is Department, indicate to the entered on the Indian person making the inquiry Register or Departmental Band whether or not that name is List. included therein.

PROTESTS

Section 14.2 (1) Section 14.2 (1)

A protest may be made in A protest can be made about respect of the inclusion or the inclusion or exclusion of addition of the name of a the name of a person the person in, or the omission Indian Register or a or deletion of the name of a Departmental Band List by person from, the Indian written notice containing a Register, or a Band List brief statement of the maintained in the complaint to the Registrar Department, within three within three years from the years after the inclusion or date the person's name was addition, or omission or included or excluded by the deletion, as the case may Registrar. be, by notice in writing to the Registrar, containing a brief statement of the grounds therefor. 32

Section 14.2 (2) Section 14.2 (2)

A protest may be made under A protest about the Band List this section in respect of can be made to the Registrar the Band List of a band by by the band council any band the council of the band, any member or the person in whose member of the band or the name the protest is made or person in respect of whose his representative. name the protest is made or his representative.

Section 14.2 (3) Section 14.2 (3)

A protest may be made under A protest can be made about this section in respect of the Indian Register to the the Indian Register by the Registrar by the person in the person in respect of whose name the protest is whose name the protest is made or his representative. made or his representative.

Section 14.2 (4) Section 14.2 (4)

The onus of establishing the The burden of providing the grounds of a protest under grounds of a protest is with this section lies on the the person making the person making the protest. protest.

Section 14.2 (5) Section 14.2 (5)

Where a protest is made to When a protest is made the the Registrar under this Registrar must begin an section, he shall cause an investigation and give his investigation to be made decision. into the matter and render a decision . 33

Section 14.2 (6) Section 14.2 (6)

For the purposes of this In responding to the protest section, the Registrar may the Registrar has a receive such evidence on discretion to receive oath, on affidavit or in any evidence on oath, affidavit other manner, whether or not or any manner whether or not admissible in a court of that evidence is admissible law, as in his discretion he in court. sees fit or deems just.

Section 14.2 (7) Section 14.2 (7)

Subject to Section 14.3, the Subject to an appeal (Section decision of the Registrar 14.3) the Registrar's under Subsection (5) is decision after an final and conclusive. investigation is final and conclusive.

Section 14.3 (1) Section 14.3 (1)

Within six months after the Within six months after the Registrar renders a decision Registrar makes a decision on on a protest under Section a protest under Section 14.2, 14.2,

(a) In the case of a (a) about a band's Band protest in respect of the List, the band council, the Band List of a band, the person who made the protest, council of the band, the or the person in whose name person by whom the protest the protest was made or his was made, or the person in representative, or respect of whose name the protest was made or his representative, or

(b) in the case of a (b) about the Indian protest in respect of the Register, the person in whose Indian Register, the person name the protest was made or in respect of whose name the his representat!ve, protest was made or his representative,

may, by notice in writing, can by written notice appeal appeal the decision to a the decision. court referred to in Subsection (5). 34

Section 14.3 (2) Section 14.3 (2)

Where an appeal is taken When an appeal is taken under under this section, the this section, the person person who takes the appeal taking the appeal must shall forthwith provide the provide the Registrar with a Registrar with a copy of the copy of the notice of appeal . notice of appeal.

Section 14.3 (3) Section 14.3 (3)

On receipt of a copy of a When the Registrar receives a notice of appeal under copy of the notice of appeal Subsection (2), the he must file with the court a Registrar shall forthwith copy of the decision being file with the court a copy appealed together with all of the decision being documentary evidence appealed together with all considered in the decision documentary evidence and any recording or considered in arriving at transcript of any oral that decision and any proceedings held before the recording or transcript of Registrar. any oral proceedings related thereto that were held before the Registrar.

Section 14.3 (4) Section 14.3 (4)

The court may, after hearing After hearing an appeal the an appeal under this court can section,

(a) affirm, vary or reverse (a) affirm, vary or reverse the decision of the the Registrars decision, or Registrar; or

(b) refer the subject- (b) refer the matter back to matter of the appeal back to the Registrar for the Registrar for reconsideration or further reconsideration or further investigation . Investigation. 35

Section 14.3 (5) Section 14.3 (5)

An appeal may be heard under An appeal can be heard this section

(a) in the Province of (a) in Prince Edward Island, Prince Edward Island, the the Yukon Territory or Yukon Territory or the Northwest Territories before Northwest Territories, the Supreme Court; before the Supreme Court;

(b) in the Province of New (b) in New Brunswick, Brunswick, Manitoba, Manitoba, Saskatchewan or Saskatchewan or Alberta, Alberta before the Court of before the court of Queen's the Queen's Bench ; Bench;

(c) in the Province of (c) in Quebec before the Quebec, before the Superior Superior Court for the Court for the district in district where the band is which the band is situated situated or where the person or in which the person who who made the protest lives or made the protest resides, or another district as the for such other district as Minister may designate; or the Minister may designate; or

(d) In any other province, (d) in any other province before the county or before the county or district district court of the county court of the county or or district in which the district where the band is band is situated or in which situated or where the person the person who made the who made the protest resides, protest resides, or of such or another county or district other county or district as as the Minister may the Minister may designate. designate. 36

PAYMENTS IN RESPECT OF PERSONS CEASING TO BE BAND MEMBERS

Section 15 (1) to (4) [Repealed, 1985, c.27, s.5]

Section 15 (5) Section 15 (5)

Where, prior to the 4th day If a woman lost status by of September, 1951, any marriage to a non-Indian but woman became entitled, had the right, under the 1927 under Section 14 of the Indian Act (or previous Acts) Indian Act, chapter 98 of to share In any Indian moneys the Revised Statutes of the Minister can pay her Canada, 1927, or any prior instead a lump sum calculated provisions to the like In such a way that it should effect, to share in the be equal to what the woma distribution of annuities, would receive over the last interest moneys or rents, ten years or if payments were the Minister may in lieu made for less than ten years thereof, pay to such woman than than payments equal to out of the moneys of the the number of years payments band an amount equal to ten were made. times the average annual amounts of such payments made to her during the ten years last preceding or, if they were paid for less than ten years, during the years they were paid.

Section 16 (1) [Repealed, 1985, c.27, s.6] 37

Section 16 (2) Section 16 (2) When a person transfers to A person who ceases to be a another band he does not have member of one band by reason the right to any of the lands of his becoming a member of or moneys of his former band, another band is not entitled but he has the right to the to any interest in the lands same share in the lands and or moneys held by Her moneys of his new band as Majesty on behalf of the other members of that band. former band, but he is entitled to the same interest in common in lands and moneys held by Her Majesty on behalf of the latter band as other members of that band.

Section 16 (3) Section 16 (3) [Repealed, 1985, c.17, s.6] [Repealed, 1985, c.17, s.6]

NEW BANDS

Section 17 (1) Section 17(1)

The Minister may, whenever The Minister can, when he he considers it desirable considers it desirable

(a) amalgamate bands that, (a) amalgamate bands that by by a vote of a majority of a majority vote of their their electors, request to electors request be amalgamated; and amalgamation; and

(b) constitute new bands (b) make new bands and and establish Band Lists establish Band Lists, from with respect thereto from existing band lists, or from existing Band Lists, or from the Indian Register at the the Indian Register, if request of persons proposing requested to do so by to form the new band. persons to form the new bands. 38

Section 17 (2) Section 17 (2)

Where pursuant to Subsection When the Minister establishes (1) a new band has been a new band from an existing established from an existing band, the lands and funds of band or any part thereof, the existing band can be such portion of the reserve divided between the new and lands and funds of the existing band in whatever way existing band as the the Minister decides. Minister determines shall be held for the use and benefit of the new band.

Section 17 (3) Section 17 (3)

No protest may be made under No protest can be made under Section 14.2 in respect of Section 14.2 (Protests) the deletion from or the against the membership of a addition to a Band List new Band List established by consequent on the exercise the Minister under his by the Minister of any of authority to establish a new his powers under Subsection band out of an existing one (1). (Subsection 17 (1) (b)).

RESERVES

Section 18 (1) Section 18 (1)

Subject to this Act, Subject to this Act, reserves reserves are held by Her are tracts of land legally Majesty for the use and held by the federal benefit of the respective government, but set aside for bands for which they were the use and benefit of a band set apart; and subject to of Indians; and subject to this Act and to the terms of the terms of any treaty or any treaty or surrender, the surrender, the federal Governor in Council may government can decide whether determine whether any any particular use of reserve purpose for which lands in a lands is for the use and reserve are used or are to benefit of a band. be used is for the use and benefit of the band. 39

Section 18 (2) Section 18 (2)

The Minister may authorize The Minister can allow the use of lands in a reserve lands for use as reserve for the purpose of Indian schools, Indian Indian schools, the affairs administration administration of Indian offices, Indian burial affairs, Indian burial grounds, and Indian Health grounds, Indian Health projects without the band projects or, with the council's consent. With the consent of the council of band council's consent, the the band, for any other Minister can allow the use of purpose for the general reserve land for other welfare of the band, and may purposes that benefit the take any lands in a reserve band. However, If an Indian required for such purposes, had lawful possession of but where an individual reserve land taken in this Indian, immediately prior to way, then he shall be paid such taking, was entitled to for loss of use of the land. the possession of such If the amount of compensation lands, compensation for such cannot be agreed upon between use shall be paid to the the individual Indian and the Indian, in such amount as Minister, then the Minister may be agreed between the will say how to determine the Indian and the Minister, or, amount. failing agreement, as may be determined in such manner as the Minister may direct.

Section 18.1 Section 18.1

A member of a band who A band member residing on the resides on the reserve of reserve can live there with the band may reside there his children or any children with his dependent children in his custody. or any children of whom he has custody. 40

Section 19 Section 19 The Minister can authorize The Minister may reserve land surveys, the subdivision of reserve lands, and the location and (a) authorize surveys of direction of road reserves and the preparation construction on reserve. of plans and reports with respect thereto;

(b) divide the whole or any portion of a reserve into lots or other subdivisions; and

POSSESSION OF LANDS IN RESERVES

Section 20 (1) Section 20 (1)

No Indian is lawfully in No Indian can lawfully possession of land in a possess reserve land unless reserve unless, with the it has been allotted to him approval of the Minister, by the band council with the possession of the land has Minister's approval. been allotted to him by the council of the band.

Section 20 (2) Section 20 (2)

The Minister may issue to an The Minister can issue a Indian who is lawfully in Certificate of Possession possession of land in a describing the reserve lands reserve a certificate, to be that the Indian holds in called a Certificate of lawful possession. Possession, as evidence of his right to possession of the land described therein. 41

Section 20 (3) Section 20 (3)

For the purposes of this Any person holding a valid Act, any person who, on the and subsisting Location 4th day of September, 1951, Ticket issued under The held a valid and subsisting Indian Act, 1880 is in lawful Location Ticket issued under possession of the land The Indian Act, 1880, or any described in the location statute relating to the same Ticket, and for purposes of subject-matter, shall be this Act a Location Ticket is deemed to be lawfully in the same as a Certificate of possession of the land to Possession. which the location ticket relates and to hold a Certificate of Possession with respect thereto.

Section 20 (4) Section 20 (4)

Where possession of land in When a band has allotted a a reserve has been allotted band member lawful possession to an Indian by the council of reserve land, the Minister of the band, the Minister can withhold his approval, may, in his discretion, and can allow the band member withhold his approval and conditional possession until may authorize the Indian to improvements as to use and occupy the land temporarily settlement are made. and may prescribe the conditions as to use and settlement that are to be fulfilled by the Indian before the Minister approves of the allottment.

Section 20 (5) Section 20 (5)

Where the Minister withholds When the Minister withholds approval pursuant to his approval for an Subsection (4), he shall allottment he must give the issue a Certificate of Indian a Certificate of Occupation to the Indian, Occupation which entitles the and the Certificate entitles Indian, or those claiming the Indian, or those possession under a will, to claiming possession by stay on the allottment for devise or descent, to occupy two years from the date of the land in respect of which issue. it is issued for a period of two years from the date thereof. 42

Section 20 (6) Section 20 (6)

The Minister may extend the The Minister can extend the term of a Certificate of Certificate of Occupation for Occupation for a further another two year period, but period not exceeding two when the Certificate expires years, and may, at the the Minister can either expiration of any period during which a Certificate of Occupation is in force

(a) approve allotment by (a) approve the allotment of the council of the band and the conditions as to use and issue a Certificate of settlement are met; or Possession if in his opinion the conditions as to use and settlement have been fulfilled; or

(b) refuse approval of the (b) refuse approval and allotment by the council of declare the land available the band and declare the for the band council to allow land in respect of which the to another Indian. Certificate of Occupation was issued to be available for reallotment by the council of the band.

Section 21 Section 21

There shall be kept in the The Department shall keep a Department a register, to be register called the Reserve known as the Reserve Land land Register containing all Register, in which shall be particulars described in entered particulars relating Certificates of Possession to Certificates of and Certificates of Possession and Certificates Occupation and any other of Occupation and other transactions affecting transactions respecting reserve land. lands in a reserve. 43

Section 22 Section 22

Where an Indian who is In When an Indian was in possession of lands at the possession of land before it time they are included in a was included in a reserve, reserve, made permanent and had made permanent improvements thereon before improvements on it, he shall that time, he shall be be entitled to lawful deemed to be in lawful possession of that land when possession of such lands at it becomes part of a reserve. the time they are so included.

Section 23 Section 23

An Indian who is lawfully An Indian who has been removed from lands in a legally removed from reserve reserve upon which he has lands upon which he has made made permanent improvements improvements can be paid may, if the Minister so compensation, either from the directs, be paid person taking over or from compensation in respect band funds, in an amount thereof in an amount to be determined by the Minister. determined by the Minister, either from the person who goes into possession or from the funds of the band, at the discretion of the Minister.

Section 24 Section 24

An Indian who is lawfully in When an Indian is in lawful possession of lands in a possession of reserve land he reserve may transfer to the can transfer the land to band or to another member of another band member or to the the band the right to band, but the Minister must possession of the land, but agree to the transfer before no transfer or agreement of it is valid. lands in a reserve is effective until it is approved by the Minister. 44

Section 25(1) Section 25 (1)

An Indian who ceases to be Within six months (or longer, entitled to reside on a if the Minister agrees) from reserve may, within six when an Indian is no longer months or such further entitled to live on a period as the Minister may reserve, he can transfer to direct, transfer to the band the band or another band or another member of the member any reserve lands he band the right to possession held in lawful possession. of any lands In the reserve of which he was lawfully in possession.

Section 25 (2) Section 25 (2)

Where an Indian does not If the Indian does not dispose of his right of transfer his right of possession In accordance possession to either a band with Subsection (1), the member or to the band within right to possession of the the time allowed, then the land reverts to the band, right of possession reverts subject to the payment to to the band. The Indian can the Indian who was lawfully be paid compensation for in possession of the land, permanent improvements from from the funds of the band, band funds as the Minister of such compensation for decides Is appropriate. permanent improvements as the Minister may determine. 45

Section 26 Section 26

Whenever a Certificate of When a Certificate of Possession or Occupation or Possession or Occupation or a Location Ticket issued Location Ticket was made by under The Indian Act, 1880, mistake to the wrong person, or any statute relating to or contains a clerical error, the same subject-matter was, or contains a misdescription in the opinion of the of any material fact the Minister, issued to or in Minister can cancel the the name of the wrong Certificate or Location person, through mistake, or Ticket and issue a corrected contains any clerical error one. or misnomer, or wrong description of any material fact therein, the Minister may cancel the Certificate or Location Ticket and issue a corrected Certificate in lieu thereof.

Section 27 Section 27

The Minister may, with the The Minister can, with, the consent of the holder consent of the holder, cancel thereof, cancel any a Certificate of Possession Certificate of Possession or or Occupation or Location Occupation or Location Ticket made with the errors Ticket referred to in listed in Section 26. The Section 26, and may cancel Minister can also cancel a any Certificate of Certificate of Possession or Possession or Occupation or Occupation or Location Ticket Location Ticket that in his if he is of the opinion that opinion was issued through it was obtained through fraud fraud or in error. or in error. 46

Section 28 (1) Section 28 (1)

Subject to Subsection (2), a Any reserve land transaction deed, lease, contract, whether oral or written where instrument, document or a band or band member agreement of any kind purports to permit a person whether written or oral, by other than a band member to which a band or a member of use reserve land or exercise a band purports to permit any rights on a reserve is a person other than a member not valid. of that band to occupy or use a reserve or to reside or otherwise exercise any rights on a reserve is void.

Section 28 (2) Section 28 (2)

The Minister may by permit However, the Minister can in writing authorize any give written permission to person for a period not any person (non-band member' exceeding one year, or with to use reserve land or the consent of the council exercise rights on a reserve of the band for any longer for a period not longer than period, to occupy or use a one year, or with the band reserve or to reside or council's consent for a otherwise exercise rights on longer period. a reserve.

Section 29 Section 29

Reserve lands are not Reserve lands cnnot be taken subject to seizure under to pay off a court judgment. legal process. For example, if an Indian or the Indian band is sued in court for money and cannot pay, the reserve land cannot be taken to pay the debt. 47

TRESPASS ON RESERVES

Section 30 Section 30

A person who trespasses on a A person can be fined $50.00 reserve is guilty of an or jailed for one month (or offence and is liable on both) for trespassing on a summary conviction to a fine reserve. not exceeding fifty dollars or to imprisonment for a term not exceeding one month, or to both.

Section 31 (1) Section 31 (1)

Without prejudice to Section Aside from Section 30, where 30, where an Indian or a an Indian or band claims that band alleges that persons non-Indians have been other than Indians are or unlawfully occupying or have been possessing, or claiming an adverse right to occupation or possession, or trespassing (a) unlawfully in upon a reserve or a part of a occupation or possession of, reserve, the federal government can issue an Information in the Federal (b) claiming adversely the Court of Canada claiming right to occupation or relief on behalf of the band. possession of, or

a reserve or part of a reserve, the Attorney General of Canada may exhibit an Information in the Federal Court of Canada claiming, on behalf of the Indian or the band, the relief or remedy sought. 48

Section 31 (2) Section 31 (2)

An Information exhibited For purposes of the Federal under Subsection (1) shall, Court Act an Information for all purposes of the under Subsection (1) is a Federal Court Act be deemed proceeding by the Crown. to be a proceeding by the Crown within the meaning of that Act.

Section 31 (3) Section 31 (3)

Nothing in this section This section does not affect shall be construed to any other legal rights that impair, abridge or otherwise the federal government, an affect any right or remedy Indian or the band has that, but for this section, against trespassers. would be available to Her Majesty or to an Indian or a band.

SALE OR BARTER OF PRODUCE

Section 32 (1) Section 32 (1)

A transaction of any kind In Manitoba, Saskatchewan or whereby a band or a member Alberta the superintendent thereof purports to sell, (DIA) must agree in writing barter, exchange, give or to any transaction in which otherwise dispose of cattle reserve farm stock, produce or other animals, grain or or products are sold. 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. 49

Section 32 (2) Section 32 (2)

The Minister may at any time The Minister can make an by order exempt a band and order saying that this the members thereof or any section does not apply to a member thereof from the band. He can also cancel operation of this section, the order after he has made and may revoke any such it. order.

Section 33 Section 33

Every person who enters into It is a crime to enter into a a transaction that is void transaction with respect to under Subsection 32 (1) is reserve farm stock, produce guilty of an offence. or products without DIA's consent.

ROADS AND BRIDGES

Section 34 (1) Section 34 (1)

A band shall ensure that the A band shall look after the roads, bridges, ditches and roads, bridges, ditches and fences within the reserve fences on its reserve in occupied by that band are accordance with the maintained in accordance Department's instructions. with instructions issued from time to time by the superintendent.

Section 34 (2) Section 34 (2)

Where, in the opinion of the If the Minister decides that Minister, a band has not a band has not taken care of carried out the instructions the roads, bridges, ditches of the superintendent given and fences on its reserve he under Subsection (1), the can arrange for the work to Minister may cause the be done at the bands instruction to be carried expense. 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 such member. 50

See, Sections 19 (c) - Surveys and Subdivisions, 81 - By-laws, and 64 - Expenditures of capital moneys with consent.

LANDS TAKEN FOR PUBLIC PURPOSES

Section 35 (1) Section 35 (1)

Where by an Act of the When, under either federal or Parliament of Canada or a provincial law, the province, provincial legislature, Her a municipal authority, or a Majesty in right of a corporation has power to take province, a municipal or land or use it without local authority or a the consent of the owner, corporation is empowered to that power can be exercised take or to use lands or any on reserve land if the interest therein without the federal cabinet agrees. consent of the owner, the power may, 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 resrve or any interest therein.

Section 35 (2) Section 35 (2)

Unless the Governor in Unless the federal government Council otherwise directs, directs otherwise all matters relating to expropriation of reserve compulsory taking or using lands is governed by the of lands in a reserve under appropriate provincial or Subsection (1) are governed federal law. by the statute by which the powers are conferred. 51

Section 35 (3) Section 35 (3)

Whenever the Governor in After the federal cabinet has Council has consented to the given consent to a exercise by a province, governmental authority to authority or corporation of expropriate reserve lands, the powers referred to in and rather than the Subsection (1), the Governor governmental authority taking in Council may, in lieu of the lands without the owner's the province, authority or consent, the federal cabinet corporation taking or using can authorize a transfer of the lands without the the reserve lands in question consent of the owner, to the governmental authorize a transfer or authority, but subject to grant of such lands to the terms of agreement between province, authority or the parties. corporation, subject to any terms that may be prescribed by the Governor in Council.

Section 35 (4) Section 35 (4)

Any amount that Is agreed Any compensation paid for the upon or awarded in respect expropriation of reserve of the compulsory taking or lands shall be paid to the using of land under this federal government for the section or that is paid for use and benefit of the band a transfer or grant of land or for the use and benefit of pursuant to this section any Indian who had been shall be paid to the entitled to compensation for Receiver General for the use expropriation of his and benefit of the band or allotment. for the use and benefit of any Indian who is entitled to compensation or payment as a result of the exercise of the powers referred to in Subsection (1). 52

SPECIAL RESERVES

Section 36 Section 36 Land that has been set apart Where lands have been set for the use and benefit of a apart for the use and band, but the federal benefit of a band and legal government does not have the title thereto is not vested legal title, is still reserve in Her Majesty, this Act land for the purposes of this applies as though the lands Act. were a reserve within the meaning of this Act.

SURRENDERS

"Surrendered lands" means "Surrendered lands" means any any piece of reserve land piece of reserve land that that has been surrendered by has been surrendered by the the band that had the use band that had the use and and benefit of it, but to benefit of it, but to which which the federal government the federal government still still retains legal title retains legal title.

Section 37 Section 37

Except where this Act Reserve lands cannot be sold, otherwise provides, lands in alienated, leased or a reserve shall not be sold, otherwise disposed of unless alienated, leased or they are surrendered to the otherwise disposed of until federal government by the they have been surrendered band for whose use and to Her Majesty by the band benefit the reserve was set for whose use and benefit in apart. common the reserve was set apart.

See, Section 35 - Lands Taken For Public Purposes 53

Section 38 (1) Section 38 (1)

A band may surrender to Her A band can surrender any Majesty any right or right it has to its reserve. interest of the band and its members in a reserve.

Section 38 (2) Section 38 (2)

A surrender may be absolute A surrender can be absolute, or qualified, conditional or final for all time, which unconditional. forever alienates the rights of an Indian Band to an interest in land. A conditional surrender involves surrender of an Indian interest in land to the Crown for a particular purpose, such as a lease, or for a particular period of time or both. A qualified surrender is the same as a conditional one, and an unconditional surrender Is the same as an absolute surrender.

Section 39 (1) Section 39 (1)

A surrender is void unless A surrender can only be made to the federal government: it cannot be made to anyone else. A majority of the band electors must give their assent in one of the following ways:

(a) it is made to Her Majesty;

(b) it is assented to by a majority of the electors of the band 54

(Section 39 (1) cont'd)

(i) at a general meeting (i) at a general meeting called by the band council, of the band called by the or council of the band,

(ii) at a special meeting (ii) at a special called by the Minister, or meeting of the band called by the Minister for the purpose of considering a proposed surrender, or

(iii) by a referendum; (iii) by a referendum as provided in the regulations; and

and the surrender must be (c) it is accepted by the accepted by the federal Governor in Council cabinet.

See, "Indian Referendum Regulations", C.R.C. 1978, c.957.

Section 39 (2) Section 39 (2)

Where a majority of the If a majority of the voters electors of a band did not did not vote at a surrender vote at a meeting or meeting under Subsection (1) referendum called pursuant the Minister could, if a to Subsection (1) of this majority of those who did section or pursuant to attend voted for the Section 51 of the Indian surrender, call another Act, chapter 98 of the meeting by giving 30 days "Revised Statutes of Canada, notice. Note that it is a 1927, the Minister may, if majority of the electors, not the proposed surrender was only a majority of electors assented to by a majority of who attend the meeting, that the electors who did vote, must vote for a surrender. call another meeting by giving thirty days notice thereof or another referendum as provided in the regulations. 55

Section 39 (3) Section 39 (3)

Where a meeting is called When a second surrender pursuant to Subsection (2) meeting is called under and the proposed surrender Subsection (2) and the is assented to at the majority of the electors in meeting or referendum by a attendance vote for a majority of the electors surrender, then for the voting, the surrender shall purposes of this section, the be deemed, for the purpose majority of the band electors of this section, to have have assented to a surrender. been assented to by a majority of the electors of the band.

Section 39 (4) Section 39 (4)

The Minister may, at the The Minister can, either at request of the council of the band's request or when he the band or whenever he considers it appropriate, considers it advisable, order that a vote at a order that a vote at any meeting be by secret ballot. meeting under this section shall be by secret ballot.

Section 39 (5) Section 39 (5)

Every meeting under this Every surrender meeting must section shall be held in the be held in the presence of presence of the the Minister or a Department superintendent or some other official appointed by the officer of the Department Minister. designated by the Minister. 56

Section 40 Section 40

When a proposed surrender A department official must be has been assented to by the present at any meeting on a band in accordance with surrender. If the band Section 39, it shall be voted for the surrender, then certified on oath by the a department official and superintendent or other either the chief or band officer who attended the council member must sign and meeting and by the chief or swear the surrender paper a member of the council of under oath. The surrender the band, and shall then be paper then goes to the submitted to the Governor in federal cabinet for Council for acceptance or acceptance or refusal. refusal.

Section 41 Section 41

A surrender shall be deemed A surrender allows the to confer all rights that federal cabinet to do are necessary to enable Her whatever is necessary to Majesty to carry out the carry out the terms of the terms of the surrender. surrender. For example, if the surrender is a lease of land, then the Department can arrange to have a lease written up and signed and do everything required to have the land properly leased.

DESCENT OF PROPERTY

"Estate" means everything a "Estate" means everything a person owns -- land, leases, person owns -- land, leases, money, car, house, money, car, house, furniture, furniture, television, television, clothes, and so clothes and so on. on. 57

Section 42 (1) Section 42 (1)

Unless otherwise provided in The Minister has all this Act, all jurisdiction jurisdiction and authority and authority in relation to over the estate of a deceased matters and causes Indian, but those powers shall be exercised subject to testamentary, with respect regulations made by the to deceased Indians, is federal cabinet. There are vested exclusively in the exceptions to this rule, for Minister, and shall be instance in Section 44 where exercised subject to and in an Indian dies off reserve, accordance with regulations and the Minister agrees that of the Governor in Council. the deceased Indian's estate can be administered according to the appropriate provincial laws.

See, "Indian Estate Regulations", C.R.C. 1978, c.954.

Section 42 (2) Section 42 (2)

The Governor in Council may The federal cabinet can make make regulations for regulations saying that the providing that a deceased deceased, who at the time of Indian who at the time of his death was in possession his death was in possession of reserve land, is for of land in a reserve shall, purposes of those in such circumstances and regulations, in lawful for such purposes as the possession of that reserve regulations prescribe, be Iand. deemed to have been at the time of his death lawfully in possession of that land.

Section 42 (3) Section 42 (3)

Regulations made under this Regulations can be made section may be made applicable to estates of applicable to estates of Indians who died before, on Indians who died before, on or after September 4, 1951. or after the 4th day of September, 1951. 58

Section 43 Section 43 While the Minister generally Without restricting the has the power to look after generality of Section 42, estates, he is specifically the Minister may given the power to do the following things:

(a) appoint people to look (a) appoint executors of after the property of Indians wills and administrators of who have died; as well as estates of deceased Indians, dismissing anyone he appoints remove them and appoint and replacing him with others in their stead; someone else;

(b) permit people to carry (b) authorize executors to out the terms specified in carry out the terms of the the deceased person's will; wills of deceased Indians;

(c) permit people to look (c) authorize administrators after the property of Indians to administer the property who die without making a of Indians who die will; intestate;

(d) otherwise the Minister (d) carry out the terms of can himself carry out will is wills of deceased Indians or look after the property of and administer the property Indians who die without of Indians who die making wills; and intestate; and

(e) make any order that he (e) make or give any order, thinks is appropriate with direction or finding that in respect to the property of his opinion it is necessary Indians who have died. or desirable to make or give with respect to any matter referred to in Section 42 59

Section 44 (1) Section 44 (1)

The court that would have The Minister can give his jurisdiction if the deceased consent to a court of were not an Indian may, with competent jurisdiction the consent of the Minister, (provincial or territorial) exercise, in accordance with to administer the estate of a this Act, the jurisdiction deceased Indian. and authority conferred upon the Minister by this Act in relation to testamentary matters and causes and any other powers, Jurisdiction and authority ordinarily vested in that court.

Section 44 (2) Section 44 (2)

The Minister may direct in The Minister may refer a any particular case that an particular case to the application for the grant of appropriate provincial or the probate of the will or territorial court which would letters of administration handle the estate of that shall be made to the court deceased person if the that would have jurisdiction deceased were not an Indian. if the deceased were not an Indian, and the Minister may refer to such court any question arising out of any will or the administration of any estate.

Section 44 (3) Section 44 (3)

A court that is exercising However, a court order made any jurisdiction or with respect to reserve lands authority under this section cannot be enforced without shall not without the the Minister's written consent in writing of the consent. Minister enforce any order relating to real property on a reserve. 60

WILLS

Section 45 (1) Section 45(1)

Nothing In this Act shall be The Indian Act does not construed to prevent or prevent an Indian from making prohibit an Indian from a will. devising or bequeathing his property by will.

Section 45 (2) Section 45 (2)

The Minister may accept as a The Minister can accept as a will any written Instrument will any written document signed by an Indian in which signed by an Indian in which he indicates his wishes or he says what he wants done intention with respect to with his property when he the disposition of his dies. property upon his death.

Section 45 (3) Section 45 (3)

No will executed by an An Indian's will is invalid Indian is of any legal force without the Ministers or effect as a disposition approval or a court has given of property until the someone the power to carry Minister has approved the out its terms. will or a court has granted probate thereof pursuant to this Act.

Section 46 (1) Section 46 (1)

The Minister may declare the The Minister can say that an will of an Indian to be void Indian's will In whole or in in whole or in part if he is part if the Minister believes satisfied that that:

(a) the will was executed (a) somebody forced the under duress or undue Indian to sign the will; influence; 61

(Section 46 (1) cont'd) (Section 46 (1) cont'd)

(b) the testator at the (b) when the Indian signed time of execution of the the will he was for some will lacked testamentary reason (senile or insane) capacity; incapable of knowing what he was doing;

(c) the terms of the will (c) the terms of the will would impose hardship on would create hardship for the persons for whom the Indian's family; testator had a responsibility to provide;

(d) the will purports to (d) the will attempts to dispose of land in a reserve give away reserve land in a in a manner contrary to the way that is not good for the interest of the band or band or which conflicts with contrary to this Act; the Indian Act;

(e) the terms of the will (e) it is so hard to figure are so vague, uncertain or out what the will means that capricious that proper it would be difficult or administration and equitable impossible to carry out the distribution of the estate terms of the will; or of the deceased would be difficult or impossible to carry out in accordance with this Act; or

(f) the terms of the will (f) the will is against the are against the public public interest - that is, it interest. directs that something wrong or illegal be done. 62

Section 46 (2) Section 46 (2) When the Minister or a court Where a will of an Indian is says that an Indian's will is declared by the Minister or invalid the result is the by a court to be wholly same as if that person died void, the person executing without making a will. But the will shall be deemed to when the Minister or a court have died intestate, and says that only a part of the where the will so is will is invalid this has no declared to be void in part effect on the rest of the only, any bequest or devise will which remains valid and affected thereby, unless a can be administered. When a contrary intention appears part of a will is declared in the will, shall be deemed invalid anything given by to have lapsed. that section cannot be carried out and must remain to be given in some other way unless the will provides otherwise.

APPEALS

Section 47 (1) Section 47 (1) Any decision that the A decision of the Minister Minister makes under the made in the exercise of the powers given to him under jurisdiction or authority Sections 42, 43 and 46 with conferred upon him by respect to descent of Section 42, 43 or 46 may, property can be appealed to within two months from the the Federal Court of Canada. date thereof, be appealed by The appeal must be made any person affected thereby within two months of the to the Federal Court of Minister's decision, and Canada, if the amount in either the amount being controversy in the appeal contested must be over exceeds five hundred dollars $ 500.0 0, or the Minister or if the Minister consents consents to the appeal. to an appeal.

Section 47 (2)

[Repealed, R.S., c. 10 (2nd Supp.), s. 65] 63

DISTRIBUTION OF PROPERTY ON INTESTACY

Note: This part deals with how an Indian's property is divided up if he dies without a will.

"Intestate" means a person intestate when he dies without making a will, or dies without leaving anything to testify what his wishes were with respect to the disposal of his property after his death.

Section 48 (1) Section 48 (1)

Where the net value of the Where the value of the estate estate of an intestate does is less than two thousand not, in the opinion of the dollars, then the estate is Minister, exceed in value given to the widow. two thousand dollars, the estate shall go to the widow.

Section 48 (2) Section 48 (2)

Where the net value of the Where the value of the estate estate of an intestate, in is more than two thousand the opinion of the Minister, dollars, the first two is two thousand dollars or thousand dollars goes to the more, two thousand dollars widow and the rest is divided shall go to the widow, and as follows: the remainder shall go as follows, namely:

(a) if the intestate left (a) if there were no no issue, the remainder children the rest goes to the shall go to the widow, widow.

(b) if the intestate left (b) if there was one child one child, one - half of the then half goes to the child remainder shall go to the and half goes to the widow; widow, and 64

(Section 48 (2) cont'd)

(c) If the Intestate left (c) if there were more than more than one child, one - one child then two - thirds third of the remainder shall go to the children and one - go to the widow. third goes to the widow,

and where a child has died and if a child has died, but leaving issue and such issue he leaves children of his is alive at the date of the own who are alive at the intestate's death, the widow intestates death, then the shall take the same share of widow takes the same share as the estate as if the child she would have taken if the had been living at that child had been alive. date.

Section 48 (3) Section 48 (3)

Notwithstanding Subsection Regardless of the above, (1) and (2),

(a) where in any particular case the Minister is (a) if the Minister thinks satisfied that any children that the children of the of the deceased will not be Indian who dies without a adequately provided for, he will, will not be properly may direct that all or any looked after then he can say part of the estate that that all or a part of the would otherwise go to the estate that would usually go widow shall go to the to the widow goes to the children; and children instead.

(b) the Minister may direct (b) the Minister can also that the widow shall have say that the widow can, as the right, during her long as she remains a widow, widowhood, to occupy any live on any reserve lands lands on a reserve that were that her husband occupied at occupied by her deceased the time of his death. husband at the time of his death. 65

Section 48 (4) Section 48 (4)

Where an intestate dies Where an Indian dies leaving leaving issue his estate children, their share of the shall be distributed, property is divided up subject to the rights of the equally among them. If one widow, if any, per stirpes child is dead, the share that among such issue. the child would have received is divided equally among that child's children.

Section 48 (5) Section 48 (5)

Where an intestate dies When an Indian dies leaving leaving no widow or issue no widow or children then his his estate shall go to his estate goes to his parents in father or mother in equal equal shares, if they are shares if both are living, both alive, but if one is but if either of them is dead, then the whole estate dead the estate shall go to goes to the one who is still the survivor. alive.

Section 48 (6) Section 48 (6)

Where an intestate dies When an Indian dies leaving leaving no widow or issue or no widow, children or father or mother his estate parents, his estate is divded shall go to his brothers and equally among his brothers sisters in equal shares, and and sisters. If any brother if any brother or sister is or sister is dead the dead the children of the children of that brother or deceased brother or sister sister take the share that shall take the share their their parents would have parent would have taken if taken. If all the brothers living but where the only and sisters are dead all persons entitled are their children share the children of deceased whole estate equally. brothers and sisters, they shall take a per capita. 66

Section 48 (7) Section 48 (7)

Where an intestate dies When an Indian dies leaving leaving no widow, issue, no widow, children, father, father, mother, brother or mother, brother or sister, or sister, and no children of children of any brother or any deceased brother or sister who had died then his sister, his estate shall go estate shall go to his next- to his next-of-kin. of-kin (next closest relative).

Section 48 (8) Section 48 (8)

Where the estate goes to the When the estate goes to the next-of-kin it shall be next-of-kin it is divided up distributed equally among equally among the next-of-kin the next-of-kin of equal who are equally close degree of consanguinity to relatives to the Indian who the intestate and those who has died. Where one of the legally represent them, but next-of-kin has died, then in no case shall, his share goes to whoever has representation be admitted the legal right to it after brothers' and sisters' provided they are not more children, and any interest distantly related than in land in a reserve shall brothers' or sisters' vest in Her Majesty for the children. Any land goes benefit of the band if the back to the band if the nearest of kin of the nearest of kin is more intestate is more remote distant than a brother or than a brother or sister. sister.

Section 48 (9) Section 48 (9)

For the purposes of this For the purposes of this section, degrees of kindred section how closely related a shall be computed by person was to the deceased counting upward from the Indian is calculated by intestate to the nearest counting upward to the common ancestor and then nearest person who was an downward to the relative, ancestor to them both and and the kindred of the half- then down to the relative. blood shall inherit equally with those of the whole- blood in the same degree. 67

Section 48 (10) Section 48 (10)

Descendants and relatives of Descendents and relatives of the intestate begotten the Indian who were before his death but born concieved, but not born when thereafter shall inherit as he died, shall inherit as i f if they had been born in the they had been born during the lifetime of the intestate Indian's lifetime. and had survived him.

Section 48 (11) Section 48 (11)

All such estate as is not If an Indian's will does not disposed of by will shall be cover his whole estate what distributed as if the is left is distributed as if testator had died intestate the Indian had died without a and had left no other will and had no other estate. estate.

Section 48 (12) Section 48 (12)

No widow is entitled to The English law of dower and dower in the land of her curtesy whereby either spouse deceased husband dying would inherit one-third of intestate, and no husband is his/her land If he/she died entitled to an estate by without a will does not apply curtesy in the land of his to Indians. There is no deceased wife so dying, and real or personal property there is no community of situated on reserve that is real or personal property owned in common by husband situated on a reserve. and wife each having an undivided one-half interest by reason of marriage.

Section 48 (13) and (14) Section (13) and (14) [Repealed, 1985, c.27,s9] [Repealed, 1985, c.27, s9 ] "Widow" includes "widower" "Widow" includes "widower" 68

Section 48 (15) Section 48 (15)

This section applies in This section applies to both respect of an intestate a woman and man dying without woman as it applies in a will, and where "widow" is respect of an intestate used it can mean "widower" male, and for the purposes without changing the meaning of this section the word of the section. "widow" includes "widower".

Section 48 (16) Section 48 (16)

In this section "child" This section reflects the includes a child born in or change in the 1985 amendment out of wedlock, a legally to the Indian Act to the adopted child and a child definition of "child" which adopted in accordance with now includes a child born in Indian custom. or out of wedlock, a legally adopted Indian or non-Indian child, and an Indian or non- Indian child adopted under Indian custom.

Section 49 Section 49

A person who claims to be A person who claims that he entitled to possession or has a right to a piece of occupation of lands in a reserve land as his share of reserve by devise or descent the estate of a deceased shall be deemed not to be in Indian does not have lawful lawful possession or possession until the Minister occupation of that land gives his approval. until the possession is approved by the Minister.

Section 50 (1) Section 50 (1)

A person who is not entitled A person not entitled to to reside on a reserve does reside on a reserve cannot not by devise or descent inherit the right to a piece acquire a right to of reserve land from a possession or occupation of deceased Indian's estate. land in that reserve. 69

Section 50 (2) Section 50 (2)

Where a right to possession If, by will an Indian or occupation of land in a attempts to give the lawful reserve passes by devise or possession of a piece of descent to a person who is reserve land to a person not not entitled to reside on a entitled to reside on a reserve, that right shall be reserve, then the Department offered for sale by the shall sell the land to the superintendent to the highest bidder among the band highest bidder among persons members, and give the who are entitled to reside proceeds to the person who on the reserve and the obtained rights to the proceeds of the sale shall reserve land under a will, be paid to the devisee or but did not have the right to descendant, as the case may live on reserve land. be.

Section 50 (3) Section 50 (3)

Where no tender is received If no bid is received within within six months or such six months (or a longer further period as the period, if directed by the Minister may direct after Minister) from the time the the date when the right to land was put up for sale, possession or occupation is then the land goes back to offered for sale under the band. The Minister can, Subsection (2), the right If he wishes, pay the person shall revert to the band who inherited the land by free from any claim on the will, but was not entitled to part of the devisee or reside on reserve land, any descendant, subject to the compensation from the band payment, at the discretion funds for major improvements of the Minister, to the done on and to the land. devisee or descendant, from the funds of the band, of such compensation for permanent improvements as the Minister may determine. 70

Section 50 (4) Section 50 (4) A person who bids for the The purchaser of a right to land pursuant to Subsection possession or occupation of (2) does not obtain a legal land under Subsection (2) right or lawful possession to shall be deemed not to be in the land until the possession lawful possession or is approved by the Minister. occupation of the land until the possession is approved by the Minister.

MENTALLY INCOMPETENT INDIANS

Section 51 (1) Section 51 (1)

Subject to this section, all The Minister has complete jurisdiction and authority control over the property of in relation to the property an Indian who is "mentally of mentally incompetent incompetent" Indians is vested exclusively in the Minister.

"mentally Incompetent "mentally incompetent Indian" Indian" means an Indian means an Indian who pursuant who pursuant to the laws of to the laws of the province the province in which he in which he resides, has been resides, has been found to found to be mentally be mentally defective or defective or incompetent for incompetent for the purposes the purposes of any laws of of any laws of that province that province providing for providing for the the administration of estates administration of estates of of mentally defective or mentally defective or incompetent persons. Incompetent persons. 71

Section 51 (2) Section 51 (2)

Without restricting the The Minister can do the generality of Subsection following: (1), the Minister may

(a) appoint persons to (a) appoint someone to look administer the estates of after the mentally mentally incompetent Incompetent Indian's property Indians;

(b) order that any property (b) order the mentally of a mentally Incompetent Incompetent Indian's property Indian shall be sold, be sold, leased, alienated, leased, alienated, mortgaged, or disposed of in mortgaged, disposed of or some other way to otherwise dealt with for the purpose of

(i) paying his debts or pay his real and personal engagements, property debts, and In order to pay the present and future costs of his care; and (ii) discharging encumberances on his property,

(ill) paying debts or expenses incurred for his maintenance or otherwise for his benefIt or

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

(c) make such orders and (c) the Minister can also do give such directions as he whatever is necessary to considers necessary to ensure the proper management secure the satisfactory of the mentally incompetent management of the estates of Indian's property. mentally Incompetent Indians. 72

Section 51 (3) Section 51 (3) The Minister may order that any property situated off a If the Indian has property reserve and belonging to a which is off reserve, the mentally Incompetent Indian Minister can order that that shall be dealt with under property should be dealt with the laws of the province in under the relevant provincial which the property is law. situated.

GUARDIANSHIP

Section 52 Section 52

The Minister may administer The Minister can look after or provide for the the property of a child under administration of any the age of majority or property to which infant appoint a guardian to do so. children of Indians are entitled, and may appoint guardians for such purposes.

MANAGEMENT OF RESERVES AND SURRENDERED LANDS

See, "Administrative Services Fees Order", C.R.C. 1978, c. 947.

Section 53 (1) Section 53 (1)

The Minister or a person The Minister, or his appointed by him for the representative, can do purpose may manage, sell, whatever is necessary to lease or otherwise dispose manage, sell, lease of surrendered lands in surrendered lands according accordance with this Act and to the terms of the the terms of the surrender. surrender. 73

Section 53 (2) Section 53 (2)

Where the original purchaser The Minister can, upon of surrendered lands is dead receipt of proof of the claim and the heir, assignee or of the original purchaser, devisee of the original grant the surrendered lands purchaser applies for a to his heir. grant of the lands, the Minister may, upon receipt of proof in such manner as he directs and requires in support of any claim for the grant and upon being satisfied that the claim has been equitably and justly established allow the claim and authorize a grant to issue accordingly.

Section 53 (3) Section 53 (3)

No person who is appointed No person who is employed by to manage, sell, lease or the Department can for otherwise dispose of himself buy or lease surrendered lands or who is surrendered lands without an officer or servant of Her federal cabinet's approval. Majesty employed in the Department may, except with the approval of the Governor in Council, acquire directly or indirectly any interest in surrendered lands. 74

Section 54 Section 54

Where surrendered lands have When a person has arranged to been agreed to be sold or buy surrendered lands, and otherwise disposed of and there has been no grant of letters patent relating possession given, or where thereto have not issued, or those lands have been leased where surrendered lands have the person obtaining an been leased, the purchaser, interest in the land, in leasee or other person either case, can sell or give having an interest in the his right to buy or lease the surrendered lands may, with land to someone else provided the approval of the the Minister agrees. Minister, assign his interest in the surrendered lands or a part thereof to any other person.

Section 55 (1) Section 55 (1)

There shall be kept in the The Department shall keep a Department a register, to be record called the known as the Surrendered "Surrendered Lands Register" Lands Register, in which where all the details shall be entered particulars involving surrendered lands in connection with any lease are recorded. or other disposition of surrendered lands by the Minister or any assignment thereof.

Section 55 (2) Section 55 (2)

A conditional assignment A conditional assignment shall not be registered. cannot be registered.

Section 55 (3) Section 55 (3)

Registration of an An assignment may be refused assignment may be refused registration until the person until proof of its execution submitting it provides proof has been furnished. that it has been properly signed and completed. 75

Section 55 (4) Section 55 (4) A registered assignment shall An assignment registered be valid against all under this section is valid unregistered assignments or against an unregistered an assignment subsequently assignment or an assignment registered. subsequently registered.

Section 56 Section 56 After an assignment has been Where an assignment is registered the Minister or registered there shall be Department official shall endorsed on the original sign the original copy of the copy thereof a certificate certificate of registration. of registration signed by the Minister or by the officer of the Department authorized by him to sign such certificates.

Section 57 Section 57 The federal cabinet can make The Governor in Council may regulations make regulations

(a) giving the Minister (a) authorizing the power to grant timber Minister to grant licences licences on surrendered lands to cut timber on surrendered without the band's consent; lands or, with the consent as well as the power to grant of the council of the band, timber licences on reserve on reserve lands; lands with a band council's consent.

See, "Indian Timber Regulations", C.R.C. 1 987, c.961.

(b) imposing terms, (b) give instructions on how conditions and restrictions the timber license can be with respect to the exercise used and how long they are of rights by licences valid. granted under Paragraph (a); 76

(c) providing for the (c) providing for the sale disposition of surrendered and mining of surrendered mines and minerals mines and minerals under underlying lands in a reserve lands ; reserve;

See, "Indian Mining Regulations", C.R.C. 1978, c.956.

(d) prescribing the penalty (d) establishing the penalty not exceeding one hundred for breaking the regulations dollars or imprisonment for where the fine does not a term of three months, or exceed $100.00 or a prison both, that may be imposed on term of three months; or summary conviction for both; and violation of any regulation made under this section; and

(e) providing for the (e) providing for the seizure and forfeiture of seizure and forfeiture of any timber or minerals taken timber or minerals taken in violation of any against the regulations. regulation made under this section.

Section 58 (1) Section 58 (1)

Where land in a reserve is Where reserve land is unused uncultivated or unused, the or uncultivated the Minister Minister may, with the can with the band council's consent of the council of consent, the band, 77

(Section 58 (1) cont'd) {Section 58 (1) cont'd)

(a) Improve or cultivate (a) cultivate the land by such land and employ persons hiring persons to do the work therefor, and authorize and and authorizing the use of a direct the expenditure of so band's capital funds, as he much of the capital funds of thinks is necessary, for the the band as he considers improvement which includes necessary for such the purchase of machinery and improvement or cultivation livestock; including the purchase of such stock, machinery or material or for the employment of such labour as the Minister considers necessary;

(b) where the land is in (b) If an individual holds lawful possession of any the land in lawful possession individual, grant a lease of the Minister can grant an such land for agricultural agricultural or grazing lease or grazing purposes or for or for any other purpose that any purpose that Is for the is of benefit to that person benefit of the person in in possession. possession; and

(c) where the land is not (c) if no one holds the land in lawful possession of any In lawful possession the individual, grant for the Minister can grant benefit of the band a lease agricultural or grazing lease of such land for for the band's benefit. agricultural or grazing purposes. 76

(c) providing for the (c) providing for the sale disposition of surrendered and mining of surrendered mines and minerals mines and minerals under underlying lands in a reserve lands ; reserve;

See, "Indian Mining Regulations", C.R.C. 1978, c.956.

Section 58 (1) Section 58 (1)

Section 58 (2) Section 58 (2)

Out of the proceeds derived Out of the moneys earned from from the Improvement or lands held in lawful cultivation of lands possession by an individual a pursuant to Paragraph reasonable rent shall be paid (1)(b), a reasonable rent to the individual in lawful shall be paid to the possession, and the remainder individual In lawful shall go to the band; possession of the lands or however, if Improvements are any part thereof, and the made to the land, then the remainder of the proceeds value of the improvements can shall be placed to the be deducted from the rent credit of the band, but if payable to the individual . Improvements are made on the lands occupied by an individual, the Minister may deduct the value of such improvements from the rent payable to such individual under this subsection.

Section 58 (3) Section 58 (3)

The Minister may lease for The Minister can lease land the benefit of any Indian held In lawful possession by upon his application for the an Indian who applies for purpose, the land of which such a lease without there he is lawfully in possession being a surrender. without the land being surrendered.

Section 58 (4) Section 58 (4)

Notwithstanding anything In The Minister can, without a this Act,the Minister may, surrender without a surrender

(a) dispose of wild grass (a) dispose of wild grass or or dead or fallen timber, dead or fallen timber , and and 79

(b) with the consent of the (b) with the band council's council of the band, dispose consent dispose of sand, of sand, gravel, clay and gravel and other non-metallic other non-metallic material on reserve lands. substances upon or under If consent Is difficult to lands In a reserve, or, obtain, then the Minister can where such consent cannot be give temporary permits to obtained without undue people to take this material difficulty or delay, may from the reserve. The issue temporary permits for temporary permits cannot be the taking of sand, gravel , renewed unless the band clay and other non-metal lie council agrees. substances upon or under lands in a reserve, renewable only with the consent of the council of the band, and the proceeds of such The moneys earned from these transactions shall be arrangements shall be paid credited to band funds or either into band funds, or shall be divided between the divided between the band and band and the individual the individual Indians who Indians in lawful possession hold the land In lawful of the lands in such shares possession as the Minister as the Minister may may decide. determine.

Section 59 Section 59

The Minister may, with the If the band council agrees, consent of the council of the Minister can a band,

(a) reduce or adjust the (a) alter the amount payable amount payable to Her for the sale or lease of Majesty In respect of a surrendered lands and reserve sale, lease or other lands or the interest rate disposition of surrendered payable; and lands or a lease or other disposition of lands In a reserve or the rate of the interest payable thereon; and 80

(b) reduce or adjust the (b) alter the amount payable amount payable to the band by an Indian who has borrowed by an Indian In respect of a money from his band's funds. loan made to the Indian from band funds.

Section 60 (1) Section 60 (1)

The Governor in Council may The federal cabinet can at at the request of a band the band's request grant to grant to the band the right them the right to exercise to exercise such control and such control and management management over lands in the over their reserve lands as reserve occupied by that the federal cabinet considers band as the Governor in desirable. Council considers desirable.

Section 60 (2) Section 60 (2)

The Governor in Council may The federal cabinet can at at any time withdraw from a any time withdraw a band's band a right conferred upon right to control and manage the band under Subsection their reserve lands. (1). 81

MANAGEMENT OF INDIAN MONEYS

"Indian moneys" means any money collected, received or held by the federal government for the use and benefit of individual Indians or Indian bands.

Section 61 (1) Section 61 (1)

Indian moneys shall be Indian moneys are to be spent expended only for the only for the use and benefit benefit of the Indians or of the Indians or bands for bands for whose use and whose use and benefit in benefit in common the moneys common the moneys are held, are received or held, and and subject to this Act and subject to this Act and to the terms of any treaty, the the terms of any treaty or federal cabinet can determine surrender, the Governor In whether moneys being spent is Council may determine really for the use and whether any purpose for benefit of the band. which Indian moneys are used or are to be Used is for the use and benefit of the band.

Section 61 (2) Section 61 (2)

Interest upon Indian moneys The federal cabinet shall held in the Consolidated determine the interest rate Revenue Fund shall be payable on Indian moneys. allowed at a rate to be fixed from time to time by the Governor in Council.

Section 62 Section 62

All Indian moneys derived All Indian moneys from the from the sale of surrendered sale of surrendered lands or lands or the sale of capital the sale of capital assets assets of a band shall be (i.e., a building) shall be deemed to be capital moneys called the band's capital of the band and all Indian moneys, and all other moneys moneys other than capital shall be called the band's moneys shall be deemed to be revenue moneys. revenue moneys of the band. 82

Section 63 Section 63

Notwithstanding the Even though the Financial Financial Administration Administration Act says Act, where moneys to which otherwise, if moneys to which an Indian is entitled are an Indian Is entitled to paid to a superintendent under a lease or agreement under any lease or agreement are paid to a superintendent, made under this Act, the he can pay the moneys superintendent may pay the directly to the Indian. moneys to the Indian.

Section 64 (1) Section 64 (1)

With the consent of the With the band council's council of a band, the consent the Minister can Minister may authorize and spend capital moneys of the direct the expenditure of band capital maoneys of the band

(a) to distribute per (a) to divide equally among capita to the members of the band members fifty per cent band an amount not exceeding of the moneys derived from fifty per cent of the the sale of surrendered capital moneys of the band lands. derived from the sale of surrendered lands.

(b) to construct and maintain roads, bridges, (b) to build roads, bridges ditches and water courses on and ditches on reserves or the resrves or on surrendered lands; surrendered lands;

(d) to purchase land for (d) to buy land as a reserve use by the band as a reserve or as extra reserve land for or as an addition to a the band; reserve; 83

(e) to purchase for the (e) to buy for the band a band the Interest of a piece of reserve land held by member of the band in lands a band member; on a reserve;

(f) to purchase livestock (f) to buy livestock and and farm implements, farm farm equipment for the band; equipment or machinery for the band;

(g) (g) to to construct buildan d such long- lastlng maintaiworksn on or In connectio(i.e.,n a water with a reserve such dam) as the Minister thinks permanent improvements or will be of longlasting value works as in the opinion of to the band or will be a good the Minister will be of investment; permanent value to the band or will constitute a capital Investment;

(h) to make to members of (h) to make loans to band the band, for the purpose of members, with the intention promoting the welfare of the of promoting the band's band, loans not exceeding welfare, of not more than one-half of the total value one-half of the value of the of borrower's personal property and one-half value of reserve lands for which he is eligible to receive a (i) the chattels owned Certificate of Possession, by the borrower, and and to set an interest rate payable along with acceptable security; (ii) the land with respect to which he holds or is eligible to receive a Certificate of Possession,

and may charge interest and take security therefor; 84

(i) to meet expenses (i) to pay the cost of necessarily incidental to managing reserve land, the management of lands on a surrendered land or band reserve surrendered lands property; and any band property;

(j) to construct houses for (j) to build houses for band members of the band, to make members, and make loans to loans to members of the band band members for building for building purposes with purposes, or to guarantee any or without security and to loan made to band members for provide for the guarantee of building purposes. loans made to members of the band for building purposes; and

(k) for any other purpose (k) finally, the Minister that in the opinion of the can spend the band's capital Minister is for the benefit moneys for any purpose that of the band. he decides is for the band's benefit.

Section 64 (2) Section 64 (2)

The Minister may make The Minister can spend expenditures out of the capital moneys of a band capital moneys of a band in authorized by a band by-law accordance with by-laws made made pursuant to Paragraph 81 pursuant to Paragraph 81 (1) (p.3) to make payments to (1)(p.3) for the purpose of any person who has been making payments to any deleted from the Band List. person whose name was The payment shall not exceed deleted from the Band List one per capita share of the of the band in an amount not capital money. exceeding one per capita share of the capital moneys. 85

Section 64.1 (1) Section 64.1 (1)

A person who has received an A person who received an amount that exceeds one amount over $1000.00 when he thousand dollars under was enfranchised and lost Paragraph 15 (1)(a), as It Indian status either by the read immediately prior to double mother rule, April 17, 1985, or under any marriage, or birth is not former provision of this Act entitled to receive any relating to the same moneys derived from a sale subject-matter as that of surrendered lands that is paragraph, by reason of divided among band members ceasing to be a member of a (s.64 (1)(a)) until the band in circumstances set total amount exceeding the out in Paragraph 6 (1)(c), $1000.00 is recovered with (d) or (e) is not entitled interest. to receive an amount under Paragraph 64 (1)(a) until such time as the aggregate of all amounts that he would, but for this subsection have received under Paragraph 64 (1)(a) is equal to the amount by which the amount that he received 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, exceeds one thousand dollars, together with any interest thereon. 86

Section 64.1 (2) Section 64.1 (2)

Where the band council makes Where a band council makes a a by-law under Paragraph 81 by-law to bring this (1) (p.4) bringing this subsection into effect a subsection into effect, a person who received an amount person who has received an over $1000.00 when he bacame amount that exceeds one enfranchised by ceasing to be thousand dollars under a band member and lost Indian Paragraph 15 (1){a), as it status either by the double read immediately prior to mother rule, marriage, birth April 17, 1985, or under any or enfranchisement isn't former provision of this Act entitled to receive benefits relating to the same available to other band subject-matter as that members that are a direct paragraph, by reason of result of the expenditure of ceasing to be a member of Indian moneys (that is, the the band in the capital moneys and the circumstances set out in revenue moneys) until the Paragraph 6(1)(c), (d) or amount that exceeds $1000.00 (e) is not entitled to together with interest is receive any benefit afforded repaid to the band. 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.

Section 64.1 (3) Section 64.1 (3)

The Governor in Council may The federal cabinet can make make regulations prescribing regulations to determine the the manner of determining interest rate applicable to interest for the purpose of moneys to be repaid under Subsections (1) and (2). Subsection (1) and (2). 87

Section 65 Section 65

The Minister may pay from The Minister can use a band's capital moneys capital moneys to

(a) compensation to an (a) pay an Indian who has Indian in an amount that is had his land taken away from determined in accordance him for band purposes; and with this Act to be payable to him in respect of land compulsorily taken from him for band purposes; and

(b) expenses incurred to (b) pay for forest and grass prevent or suppress grass or fire prevention or to protect forest fires or to protect the property of Indians in the property of Indians in cases of emergency. cases of emergency.

Section 66 (1) Section 66 (1)

With the consent of the With a band council's consent council of a band, the the Minister can spend the Minister may authorize and band's revenue moneys for any direct the expenditure of purpose he decides will be revenue moneys for any for the good of the band or purpose that in his opinion any band member. will promote the general progress and welfare of the band or any member of the band. 88

Section 66 (2) Section 66 (2)

The Minister may make The Minister can spend the expenditures out of the band revenue moneys to assist revenue moneys of the band the sick, disabled, aged, or to assist sick, disabled, destitute Indians of the aged or destitute Indians of band, and to provide the the band and to provide for burial of deceased poor band the burial of deceased members, and to pay the indigent members of the band contributions under the and to provide for the Unemployment Insurance Act payment of contributions for people who are employed under the Unemployment and paid by the band. Insurance Act on behalf of employed persons who are paid in respect of their employment out of moneys of the band.

Section 66 (2.1) Section 66 (2.1)

The Minister may make The Minister can pay out of a expenditures out of the band's revenue moneys, in revenue moneys of a band in accordance with a band by-law accordance with by-laws made for the purpose of paying any pursuant to Paragraph 81 (1) person whose name was deleted (p.3) for the purpose of from the Band List, an amount making payments to any not exceeding one per capita person whose name was share. deleted from the Band list of the band in an amount not exceeding one per capita share of the revenue moneys.

Section 66 (3) Section 66 (3)

The Minister may authorize The Minister can allow a the expenditure of revenue band's revenue moneys to be moneys of the band for all spent for all or any of the or any of the following following purposes: purposes, namely: 89

(a) for the destruction of (a) to destroy weeds and noxious weeds and the pests on reserves : prevention of the spreading or prevalance of Insects, pests or diseases that may destroy or injure vegetation on Indian reserves;

(b) to prevent, mitigate (b) to prevent the spread of and control the spread of infectious or non-infectlous diseases on reserves, diseases on reserves; whether or not the diseases are Infectious or communicable;

(c) to provide for the (c) to provide building inspection of premises on inspection on reserves and to reserves and the destroy or repair the destruction, alteration or building; renovation thereof;

(d) to prevent overcrowding (d) to stop overcrowding in of premises on reserves used reserve housing; as dwellings;

(e) to provide for sanitary (e) to provide for clean and conditions in private hygienic conditions in houses premises on reserves as well and public places on as in public places on reserves; and reserves; and

(f) for the construction (f) to build and maintain and maintenance of boundary boundary fences. fences. 90

Section 67 Section 67

Where money is expended by When the federal government Her Majesty for the purpose has spent money In order to of raising or collecting raise or collect Indian Indian moneys, the Minister moneys, then the Minister can may authorize the recovery recover that amount from the of the amount so expended band's moneys. from the moneys of the band.

Section 68 Section 68

Where the Minister is When the Minister Is satisfed satisfied that an Indian that an Indian

(a) has deserted his spouse (a) has left his spouse or or family without sufficient family without good reason, cause,

(b) has conducted himself (b) has carried on in such a in such a manner as to way that his spouse or family justify the refusal of his cannot be expected to live spouse or family to live with him, or with him, or

(c) has been seperated by (c) has been seperated from Imprisonment from his spouse his spouse and family because and family, he is in jail, the Minister may order that the Minister can oreder that payments of any annuity or the Indian moneys the Indian interest money to which that had been entitled to shall be Indian is entitled shall be used to support his spouse or applied to the support of family or both the spouse and the spouse or family or both family. the spouse and family of that Indian. 91

Section 69 (1) Section 69 (1) The federal cabinet can allow The Governor in Council may a band to control, manage and by order permit a band to expend its revenue monies but control, manage and expend it can also take that power in whole or In part Its a way, revenue moneys and may amend or revoke any such order.

Section 69 (2) Section 69 (2) The federal cabinet can make The Governor in Council may regulations dealing with the make regulations to give situation where a band has effect to Subsection (1) and control of its revenue monies may declare therein the outlining where the Indian extent to which this Act and Act and the Financial the Financial Administration Administration Act do not Act shall not apply to a apply. band to which an order made under Subsection (1) applies.

LOANS

Burrell and Sanders, Handbook of Case Law on the Indian Act, (Department of Indian and Northern Affairs, 1984) , p 139

"Appropriation Act No. 1, 1970 (vote L53b) established new provisions for loans to Indians. Regulations were enacted under the Appropriation Act in 1 972. The Appropriation Act waives the provisions of Section 89 of the Indian Act for any loans made pursuant to It. It allows for loans, to Indians or non-Indians, designed to contribute to the economic development of Indians. In certain circumstances the regulations provide for ministerial guarantee of loans. Because of the Appropriation Act and the regulations, Section 70 of the Indian Act is no longer in use". 92

Section 70 (1)

The Minister of Finance may from time to time authorize advances to the Minister out of the Consolidated Revenue Fund of such sums of money as the Minister may require to enable him

(a) to make loans to bands, groups of Indians or individual Indians for the purpose of farm implements, machinery, livestock, motor vehicles, fishing equipment, seed grain, fencing materials, materials to be used in native handicrafts, any other equipment, and gasoline and other petroleum products, or for the making of repairs or the payment of wages, or for the clearing and breaking of land within reserves;

(b) to expend or to lend money for the carrying out of cooperative projects on behalf of Indians; or

Section 70 (2)

The Governor in Council may make regulations to give effect to Subsection (1). 93

Section 70 (3)

Expenditures that are made under Subsection (1) shall be accounted for in the same manner as public moneys.

Section 70 (4)

The Minister shall pay to the Receiver General all moneys that he receives from bands, groups of Indians or individual Indians by way of repayments of loans made under Subsection (1).

Section 70 (5)

The total amount of outstanding advances to the Minister under this section shall not at any one time exceed six million and fifty thousand dollars.

Section 70 (6)

The Minister shall within fifteen days after the termination of each fiscal year or, if Parliament Is not then In session, within fifteen days after the commencement of the next ensuing session, lay before Parliament a report setting out the total number and amount of loans made under Subsection (1) during that year. 94

FARMS

Section 71 (1) Section 71 (1)

The Minister may operate The Minister can operate farms on reserves and may farms on reserves, hire employ such persons as he someone to teach farming considers necessary to methods, and buy and divide instruct Indians in farming seed among Indian farmers. and may purchase and distribute without charge, pure seed to Indian farmers.

Section 71 (2) Section 71 (2)

The Minister may apply any The Minister can use the profits that result from the profits made from a reserve operation of farms pursuant farming operation to enlarge to Subsection (1) on the existing one, or make reserves to extend farming loans to Indians to enable operations on the reserves them to start up their own or to make loans to Indians agricultural operation, or he to enable them to engage in may apply the profits In any farming or other way that he decides will best agricultural operations or promote the progress and he may apply such profits In development of the Indians. any way that he considers to be desirable to promote the progress and development of the Indians.

TREATY MONEY

Section 72 Section 72

Moneys that are payable to Treaty moneys can be paid out Indians or to Indian bands of the Consolidated Revenue under a treaty between Her Fund. Majesty and the band for the payment of which the Government of Canada Is responsible, may be paid out of the Consolidated Revenue Fund. 95

REGULATIONS

Section 73(1) Section 73 (1) The federal cabinet can make The Governor In Council may regulations make regulations

(a) for protecting and (a) for the protection and preserving wildlife on preservation of fur-bearing reserves; animals, fish and other game on reserves;

(b) for destroying weeds and (b) for the destruction of Insects which might injure noxious weeds and the plants and trees on reserves; prevention of the spreading or prevalence of insects, pests or diseases that may destroy or injure vegetation on Indian reserves.

(c) for traffic control on (c) for the control of the reserves; speed, operation and parking of vehicles on roads within reserves;

See, "Indian Reserve Traffic Regulations", C.R.C. 1978, c.959.

(d) for the taxation, (d) for taxing, controlling control and destruction of and destroying dogs and the dogs and for the protection protection of sheep on of sheep on reserves; reserves;

See, "Indian Reserve Dog Regulations", C.R.C. 1978, c.958.

(e) for the operation, (e) for operating, supervision and control of supervising, and controlling pool rooms, dance halls and pool rooms, dance halls, and other places of amusement on other places of amusement on reserves; reserves;

See, "Places of Amusement Regulations", C.R.C. 1978, c.962. 96

(Section 73 (1) cont'd)

(f) to prevent, mitigate (f) to prevent the spread of and control the spread of infectious or non-infectious diseases on reserves, diseases on reserves; whether or not the diseases are infectious or communicable;

See, "Indian Health Regulations", C.R.C, 1978, c.955.

(g) to provide medical (g) to provide health treatment and health services for Indians; services for Indians;

(h) to provide compulsory (h) to provide for enforced hospitalization and hospitalization and treatment treatment for infectious for Infectious diseases among diseases among Indians; Indians;

(i) to provide for the (i) to provide for building Inspection of premises on inspection on reserves and reserves and the destroy or repair buildings, destruction, alteration or renovation thereof;

(j) to prevent overcrowding (J) to prevent overcrowding of premises on reserves used in reserve housing; as dwellings;

(k) to provide for sanitary (k) to provide for clean and conditions in private hygienic conditions In houses premises on reserves as well and public places on as in public places on reserves; reserves;

(1) for the construction (1) for building and and maintenance of boundary maintaining boundary fences; fences; and and 97

(Section 73 (1) cont'd)

(•) for empowering and (•) for authorizing a band authorizing the council of a council to borrow money for band to borrow money for band projects or housing band projects or housing purposes and also for a band purposes and providing for council to make loans to band the making of loans out of members for housing purposes. moneys so borrowed to members of the band for housing purposes.

Section 73 (2) Section 73 (2)

The Governor in Council may The federal cabinet can allow prescribe the penalty, not for a fine of one hundred exceeding a fine of one dollars or imprisonment for a hundred dollars or term not exceeding three imprisonment for a term not months, or both for a exceeding three months, or violation of any of the both, that may be imposed on regulations mentioned In summary conviction for Subsection (1). violation of a regulation made under Subsection (1).

Section 73 (3) Section 73 (3)

The Governor in Council may The federal cabinet can make make orders and regulations orders and regulations to to carry out the purposes carry out the purposes of the and provisions of this Act. Indian Act.

ELECTIONS OF CHIEFS AND BAND COUNCILS

See, "Indian Bands Election Order", C.R.C. 1978, c.951.

See, "Indian Band Election Regulations", C.R.C. 1978, c.952 98

Section 74 (1) Section 74 (1)

Whenever he deems it Whenever he decides that it advisable for the good is for the good government of government of a band, the a band, the Minister can Minister may declare by order that after a given day order that after a day to be the band council made up of named therein the council of chief and councillors, shall the band, consisting of a be elected according to the chief and councillors, shall Indian Act. be selected by elections to be held in accordance with this Act.

Section 74 (2) Section 74 (2)

Unless otherwise ordered by Unless the Minister decides the Minister the council of otherwise, the elected band a band in respect of which council shall consist of only an order has been made under one chief and one councillor Subsection (1) shall consist for every one hundred band of one chief, and one members, but not less than councillor for every one two or more than twelve. 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.

Section 74 (3) Section 74 (3)

The Governor in Council may, The federal cabinet can make for the purposes of giving election regulations which effect to Subsection (1), provide make orders or regulations to provide

(a) that the chief of a (a) that the chief can be band shall be elected by elected by

(i) a majority of the (i) a majority vote of the votes of the electors of electors of the band, or the band, or

(ii) a majority of the (ii) a majority vote of the elected councillors of elected band councillors, and the band from among them• he shall remain a councillor; selves, but the chief so and elected shall remain a councillor; and 99

Section 74 (3) cont'd)

(b) that the councillors of (b) that the band a band shall be elected by councillors can be elected by

(i) a majority of the (i) a majority vote of votes of the electors of the electors of the band, the band, or or

(ii) a majority of the (ii) a majority vote of votes of the electors of the electors of the band the band in the electoral in the electoral section section in which the in which the candidate candidate resides and lives and which he will that he proposes to represent on the council. represent on the council of the band.

Section 74 (4) Section 74 (4)

A reserve shall for voting A reserve will usually purposes consist of one consist of one electoral electoral section, except section except where a that where the majority of majority of the electors vote the electors of a band who at a referendum or special were present and voted at a meeting that the reserve referendum or a special should be divided into meeting held and called for electoral sections (and the the purpose in accordance Minister recommends the with the regulations have same). The federal cabinet decided that the reserve can make regulations or should for voting purposes orders that the reserve be be divided into electoral divided into not more than sections and the Minister so six electoral sections with recommends, the Governor in as nearly as possible equal Council may make orders or eligible voters, and to regulations to provide that provide how each section is the reserve shall for voting to be identified. purposes be divided 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 shall be distinguished or identified. 100

Section 75 (1) Section 75(1)

No person other than an Only an elector who lives in elector who resides in a a section can be nominated section may be nominated for for councillor to represent the office of councillor to that section. represent that section on the council of the band.

Section 75 (2) Section 75 (2)

No person may be a candidate For a person to be eligible for election as chief or as a candidate for chief or councillor unless his councillor his nomination nomination is moved and must be moved and seconded by seconded by persons who are persons who are themselves themselves eligible to be eligible to be nominated. nominated.

Section 76 (1) Section 76 (1)

The Governor in Council may Generally, the federal make orders and regulations cabinet can make orders and with respect to band regulations with respect to elections and, without band elections, and more restricting the generality specifically can make of the foregoing, may make regulations for: regulations with respect to

(a) meetings to nominate (a) meetings to nominate candidates; people to stand for chief and council;

(b) the appointment and (b) the appointment and duties of electoral duties of electoral officers; officers; (c) voting procedure; (c) the manner In which voting shall be carried out; (d) election appeals; and (d) election appeals; and (e) the definition of (e) the definition of residency on reserve to residence for the purpose of determine voter eligibility. determining the eligibility of voters. 101

Section 76 (2) Section 76 (2)

The regulations under The regulations made for Paragraph (1) (c) shall make voting procedures shall make provision for secrecy of provision for a secret voting. ballot.

Section 77 (1) Section 77(1)

A member of a band who has Any member of a band who is attained the age of eighteen 18 years old and usually years and is ordinarily lives on the reserve can vote resident on the reserve is in the election of a chief. qualified to vote for a He can also vote In the person nominated to be chief election of councillors where of the band and, where the the reserve consists of one reserve for voting purposes electoral section. consists of one section, to vote for persons nominated as councillors.

Section 77 (2) Section 77 (2)

A member of a band who is of A band member who is eighteen the full age of eighteen years old and usually lives years and is ordinarily in an electoral section that resident In a section that has been established for has been established for voting purposes can vote in voting purposes Is qualified the election of a councillor to vote for a person to represent that section. nominated to be councillor to represent that section.

Section 78 (1) Section 78 (1 )

Subject to this section, Usually chiefs and chiefs and councillors hold councillors hold office for office for two years. two years. 102

Section 78 (2) Section 78 (2)

The office of chief or The office of chief or councillor becomes vacant councillor becomes vacant when when:

(a) the person who holds (a) the chief or councillor that office

(i) is convicted of an (i) is found guilty of a indictable offence, serious crime,

(ii) dies or resigns (ii) dies or resigns his office or from his office, or

(iii) is or becomes (iii) is or becomes Ineligible to hold office Ineligible to hold office by virtue of this Act; or by virtue of this Act; or

(b) the Minister dec lares (b) the Minister decid that in his opinion the that the person holding person who holds that office office

(i) is unfit to continue (i) is found guilty of a in office by reason of minor crime, his having been convicted of an offence,

(ii) has been absent (ii) Is absent from from meetings of the three consecutive council for three meetings without consecutive meetings permission; or without being authorized to do so or

(iii) was guilty, in (iii) was fraudulent in connection with an connection with an election, of corrupt election. practice, accepting a bribe, dishonesty or malfeasance . 103

Section 78 (3) Section 78 (3)

The Minister may declare a Where a person was fraudulent person who ceases to hold in connection with an office by virtue of election the Minister can Subparagraph (2)(b)(iii) to declare him ineligible as a be ineligible to be a candidate for up to six candidate for chief or years. councillor for a period not exceeding six years.

Section 78 (4) Section 78 (4)

Where the office of chief or If the office of chief or councillor becomes vacant councillor becomes vacant more than three months more than three months before before the date when another his term is up then a special election would ordinarily be election can be held to fill held, a special election may the vacancy. be held in accordance with this Act to fill the vacancy.

Section 79 Section 79

The Governor in Council may On a report from the Minister set aside the election of a the federal cabinet can set chief or a councillor on the aside the election of a chief report of the Minister that or councillor if he is satisfied that

(a) there was corrupt (a) there was something practice in connection with dishonest done in connection the election; with the election;

(b) there was a violation (b) there was a violation of of this Act that might have the Act that could have affected the result of the affected the election election; results; or

(c) a person nominated to (c) a person nominated was be a candidate in the an ineligible nominee. election was ineligible to be a candidate. 104

Section 80 Section 80

The Governor in Council may Generally, the federal make regulations with government can make respect to band meetings and regulations with respect to council meetings and, band and band council without restricting the meetings, and specifically can make regulations with generality of the foregoing, respect to may make regulations with respect to

(a) presiding officers at (a) the officers in charge at such meetings; such meetings;

(b) notice of such (b) the type of notice required for such meetings; meetings;

(c) the duties of any (c) the duties of the representative of the Minister's representative at Minister at such meetings; such meetings; and and

(d) the number of persons (d) the number of people required at the meeting to required to make binding constitute a quorum. decisions at such meetings.

POWERS OF THE COUNCIL

Section 81 (1) Section 81 (1)

The council of a band may The band council can make by• make by-laws not laws which cannot be inconsistent with this Act Inconsistent with this Act or or with any regulation made with regulations made by the by the Governor in Council federal cabinet for the or the Minister, for any or following purposes: all of the following purposes, namely:

(a) to provide for the (a) to provide health health of residents on the services for reserve reserve and to prevent the residents and for the spreading of contagious and prevention of contagious infectious diseases; diseases; 105

(b) the regulation of (b) for traffic regulation; traffic;

(d) the prevention of (d) for preventing disorderly conduct and disorderly conduct; nuisances;

(e) the protection against (e) for protection against and prevention of trespass and prevention of domestic by cattle and other domestic animal trespass, the animals, the establishment establishment of animal of pounds, the appointment pounds and pound-keepers, and of pound-keepers, the the regulation of their regulation of their duties duties as well as service and the provision for fees fees. and charges for their services;

(f) the construction and (f) for constructing and maintenance of water maintaining water courses, courses, roads, bridges, roads, bridges, and other ditches, fences and other local works; local works;

(g) the dividing of the (g) for subdividing all or a reserve or a portion thereof portion of the reserve into Into zones and the business or residential prohibition of the zones; construction or maintenance of any class of buildings or the carrying on of any class of business, trade or calling in any such zone;

(h) the regulation of the (h) for regulating building construction, repair and use construction and repair and of buildings, whether owned use of buildings whether by the band or by individual individually owned or band members of the band; owned. 106

(i) the survey and (I) for reserve land allotment of reserve lands surveys, reserve allotment among the members of the among band members, and for band and the establishment establishing a registry of a register of relating to those allotments; Certificates of Possession and for setting aside reserve and Certificates of lands for common use If the Occupation relating to band has been granted control allotments and the setting and management over its apart of reserve lands for reserve lands; common use, If authority therefor has been granted under Section 60;

(J) the destruction and (J) for weed control; control of noxious weeds;

(k) the regulation of bee• (k) for bee-keeping and keeping and poultry raising; poultry farming;

(l) the construction and (l) for constructing and regulation of the use of regulating the band's water public wells, cisterns, supply; reservoirs and other water supplies;

(•) the control and (• ) for controlling and prohibition of public games, preventing certain athletic sports, races, athletic sports and other amusements; contests and other amusements;

(n) the regulation of the (n) for regulating conduct and activities of salesperson's conduct on hawkers, peddlers or others reserve; who enter the reserve to buy, sell or otherwise deal In wares or merchandise;

(o) the preservation, (o) for fish and wildlife protection and management of protection and management on fur-bearing animals, fish reserve; and other game on the reserve; 107

(p) the removal and (p) for removing and punishment of persons punishing trespassers on trespassing upon the reserve reserve, or those who or frequenting the reserve frequent the reserve for for prohibited purposes; prohibited purposes;

(p.1) the residence of band (p.1) for residence members and other persons on requirements of band members the reserve; and others on reserve;

(p.2) to provide for the (p.2) for the rights of rights of spouses and spouses and children who live children who reside with on reserve with band members members of the band on the concerning any matter for reserve with respect to any which the band can make by• matter in relation to which laws (i.e., health services the council may make by-laws or housing) in respect of members of the band;

(p.3) to authorize the (p.3) to authorize the Minister to make payments Minister to make payments out out of capital or revenue of band capital or revenue moneys to persons whose moneys to persons who were names were deleted from the deleted from the Band List; Band List of the band;

(p.4) to bring Subsection (p.4) to allow consent for 10(3) or 64.1 (2) into band control of membership by effect in respect of the band members (Subsection band; 10(3)) or to require the "pay back" of capital moneys greater than $1,000.00 (Subsection 64.1 (2));

(q) with respect to any (q) for any matter required matter arising out of or to do the things listed ancillary to the exercise of above; and powers under this section; and 108

(r) the Imposition on (r) for imposing a fine of summary conviction of a fine not more than one thousand not exceeding one thousand dollars or Imprisonment for dollars or imprisonment for not more than thirty days, or a term not exceeding thirty both on summary conviction days, or both, for violation for a violation of a by-law of a by-law made under this made under this section. section.

Section 81 (2) Section 81 (2)

Where any by-law of a band Where a conviction Is entered Is contravened and a for the contravention of a conviction entered, In band by-law, and In addition addition to any other remedy to any other penalty imposed, and to any penalty imposed a court of competent by the by-law, the court In jurisdiction can order the which the conviction has offender not to repeat the been entered, and any court contravention. of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted.

Section 81 (3) Section 81 (3)

Where any by-law of a band Where there Is a passed Is contravened, In contravention of a band by• addition to any other remedy law, the court in addition to and to any penalty imposed any other remedy or any by the by-law, such penalty Imposed, can put a contravention may be restraint on the action at restrained by court action the band council's request. at the instance of the band council. 109

Section 82 (1) Sect ion 82 (1)

A copy of every by-law made A copy of a by-law made under under the authority of this section must be sent to Section 81 shall be the Minister within four days forwarded by mail by the after it is made. chief or a member of the council of the band to the Minister within four days after it is made.

Section 82 (2) Section 82 (2)

A by-law made under Section A band by-law comes Into 81 comes into force forty force forty days after It has days after a copy thereof is been forwarded to the forwarded to the Minister Minister, unless within that pursuant to Subsection (1), time he disallows the by-law; unless it is disallowed by however, the Minister can the Minister within that declare the by-law in force period, but the Minister may at any time before the declare the by-law to be in expiration of the forty days. force at any time before the expiration of that period.

Section 83 (1) Section 83 (1)

Without prejudice to the Aside from the band by-law powers conferred by Section making powers in Section 81 81, where the Governor In where the federal cabinet Council declares that a band declares that a band has has reached an advanced reached an "advanced stage of stage of development, the development" the band council council of the band may, can with the Minister's subject to the approval of approval make by-laws for the the Minister, make by-laws following purposes: for any or all of the following purposes, namely 110

(a) the raising of money by (a) raising money by

(i) the assessment and (i) the assessment and taxation of interests in taxation of reserve lands land in the reserve of held in lawful persons lawfully In possession, and possession thereof, and

(ii) the licensing of (ii) licensing businesses businesses, callings, or occupations; trades and occupations;

(b) the appropriation and (b) by taking and spending expenditure of moneys of the band moneys for band band to defray band expenses; expenses;

(c) the appointment of (c) to hire employees to officials to conduct the conduct band council business business of the council, setting out their duties and prescribing their duties and paying them out of the moneys providing for their collected in assessment remuneration out of any against reserve lands held It. moneys raised pursuant to 1 awful possession by band Paragraph (a); members.

(d) the payment of (d) to pay chief and remuneration, in such amount councillors (as approved by as may be approved by the the Minister) wages out of Minister to chiefs and the moneys collected in councillors, out of any assessment against reserve moneys raised pursuant to lands held in lawful Paragraph (a); possession by band members;

(e) the imposition of a (e) to impose a penalty for penalty for nonpayment of nonpayment of taxes taxes imposed pursuant to recoverable on summary this section, recoverable on conviction, but not exceeding summary conviction, not the amount of tax unpaid; exceeding the amount of the tax or the amount remaining unpaid; 111

(f) the raising of money (f) to raise money from band from band members to support members to support band band projects; and projects; and

(g) with respect to any (g) to make by-laws matter arising out of or regarding any matter arising ancillary to the exercise of out of the exercise of powers powers under this section under this section.

Section 83 (2) Section 83 (2)

No expenditure shall be made Moneys raised by taxation out of moneys raised under Paragraph (1)(a) cannot pursuant to Paragraph (1)(a) be spent without a by-law except under the authority passed by the band council of a by-law of the council authorizing the expenditure. of the band.

Section 84 Section 84

Where a tax that is imposed Where a tax is imposed upon upon an Indian by or under an Indian under the authority the authority of a by-law of a band by-law and it is made under Section 83 is not unpaid the Minister can pay paid in accordance with the the amount owing along with by-law, the Minister may pay an amount equal to one-half the amount owing together of one per cent out of the with an amount equal to one- moneys due to the Indian out half of one per cent thereof of band funds. out of moneys payable out of the funds of the band to the Indian. 112

Section 85 Sect ion 85

The Governor In Council may The federal cabinet can revoke a declaration made revoke a band's authority to under Section 83 whereupon make money by-laws that section no longer However a valid money by-law applies to the band to which will remain in force until it formerly applied, but any the cabinet does revoke It by-law made under the authority of that section and in force at the time the declaration is revoked shall be deemed to continue in force until it is revoked by the Governor in Council.

Section 85.1 (1) Section 85.1 (1)

Subject to Subsection (2), With the consent of the the council of a band may majority of the electors of make by-laws the band, a band council can make by-laws

(a) prohibiting the sale, (a) prohibiting liquor sale' barter, supply or or manufacture on reserve; manufacture of intoxicants on the reserve of the band;

(b) prohibiting any person (b) prohibiting Intoxication from being intoxicated on on reserve; the reserve;

(c) prohibiting any person (c) prohibiting possession from having intoxicants in of liquor on reserve; and his possession on the reserve; and

(d) providing for (d) providing exceptions to exceptions to any of the Intoxication on reserve or prohibitions established possession of liquor on pursuant to Paragraph (b) or reserve. (c). 113

Section 85.1 (2) Section 85.1 (2)

A by-law may not be made A liquor by-law cannot be under this section unless it made unless a majority of the is first assented to by a electors of the band voted majority of the electors of for it at a special meeting the band who voted at a called to consider the liquor special meeting of the band by-law. called by the council of the band for the purpose of considering the by-law.

Section 85.1 (3) Section 85.1 (3)

A copy of every by-law made The chief or council member under this section shall be must send to the Minister a sent by mall to the Minister copy of every liquor by-law by the chief or a member of within four days after it is the council of the band made. within four days after it Is made.

Section 85.1 (4) Section 85.1 (4)

Every person who contravenes Every person who breaks a a by-law made under this liquor by-law is guilty of an section is guilty of an offence and is liable on offence and is liable on summary conviction summary conviction,

(a) in the case of a by-law (a) for selling or made under Paragraph (1)(a), manufacturing liquor to a to a fine of not more than fine of not more than one one thousand dollars or to thousand dollars or to imprisonment for a term not imprisonment for not more exceeding six months or to than six months or to both; both; and and 114

(b) for being intoxicated or (b) in the case of a by-law possessing liquor on reserve made under Paragraph (1)(b) to a fine of not more than or (c), to a fine of not one hundred dollars or to more than one hundred imprisonment for not more dollars or to imprisonment than three months or to both. for a term not exceeding three months or to both.

Section 86 Section 86 certified copy of band A copy of a by-law made by A a by-law is evidence that it the council of a band under was duly made by band this Act, if it is certified a council and approved by the to be a true copy by the Minister even without the superintendent, Is evidence signature of the that the by-law was duly superintendent. No such by• made by the council and law is invalid because of a approved by the Minister, defect in form. 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.

TAXATION

Section 87 Section 87

Notwithstanding any other Despite any other federal or Act of the Parliament of provincial law, but subject Canada or any Act of the to a band's money by-laws legislature of a province, (Section 83), the following but subject to Section 83, property is exempt from the following property is taxation: exempt from taxation, namely: 115

(a) the interest of an (a) an Indian or band's Indian or a band in reserve interest In reserve or or surrendered lands; and surrendered lands; and

(b) the personal property (b) an Indian or band's of an Indian or band personal property situated on situated on a reserve; a reserve;

and no Indian or band is and no Indian or band can be subject to taxation in taxed in respect of property respect of the ownership, mentioned in (a) and (b) occupation, possession or above; and no estate duty use of any property on such property Is taxable mentioned in Paragraph (a) on the death of an Indian if or (b) or is otherwise the property passes to an subject to taxation in Indian; nor can any such respect of any such property be taken, into property; and no succession account when calculating the duty, inheritance tax or duty payable under the estate duty is payable on Dominion Succession Duty Act the death of any Indian in or the tax payable under the respect of any such property Estate Tax Act. or the succession thereto if the property passes to an Indian, nor shall any such property be taken into account in determining the duty payable under the Domimion Succession Duty Act, being Chapter of the Revised Statutes of Canada, 1952, or the tax payable under the Estate Tax Act, on or in respect of other property passing to an Indian. 116

LEGAL RIGHTS

Section 88 Section 88

Subject to the terms of any Subject to the terms of any treaty and any other Act of treaty or federal law all the Parliament of Canada, provincial laws of general all laws of general application (to all citizens) application from time to a re applicable to Indians time in force in any except where such laws might province are applicable to be inconsistent with the and in respect of Indians in Indian Act or any order, the province, except to the rule, regulation or by-law extent that such laws are made under the Indian Act. inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.

Section 89 (1) Section 89 (1)

Subject to this Act, the The real and personal real and personal property property of an Indian or band of an Indian or a band situated on a reserve cannot situated on a reserve is not be seized to settle a debt subject to charge, pledge, with anyone other than mortgage, attachment, levy, another Indian. seizure, distress or execution in favour or at the instance of any person other than an Indian. 117

Section 89 (2) Section 89 (2)

A person who sells to a band A conditional sales agreement or a member of a band a (where a right of property or chattel under an agreement of possession remains with whereby the right of the seller)made with a band property or right of member or the band allows the possession thereto remains conditional seller to wholly or in part in the exercise his rights of seller, may exercise his seizure of the chattel rights under the agreement whether or not the chattel Is notwithstanding that the situated on the reserve. chattel is situated on a reserve.

Section 90 (1) Section 90 (1)

For the purposes of Sections For purposes of property 87 and 89, personal property exempt from taxation or that was seizure, personal property that was

(a) purchased by Her (a) bought by the federal Majesty with Indian moneys government with Indian moneys or moneys appropriated by for the use and benefit of Parliament for the use and Indians or bands, or benefit of Indian bands, or

(b) given to Indians or to (b) given to Indians or a a band under a treaty or band under a treaty or an agreement between a band and agreement between the federal Her Majesty, government and a band,

shall be deemed always to be shall be deemed to be always situated on a reserve. situated on a reserve. 118

Section 90 (2) Section 90 (2)

Every transaction purporting Any transaction purporting to to pass title to any pass title of any property property that is by this that is deemed to be situated section deemed to be on a reserve is Invalid situated on a reserve, or unless the transaction Is any interest in such approved by the Minister or property, is void unless the is made between band members transaction Is entered into or between the band and a with the consent of the band member. Minister or is entered into between members of a band or between the band and a member thereof.

Section 90 (3) Section 90 (3)

Every person who enters Into Any person who enters Into an any transaction that is void agreement purporting to pass by virtue of Subsection (2) title to property situated on is guilty of an offence and a reserve without the every person who, without Minister's consent is guilty the written consent of the of an offence; and any person Minister, destroys personal who destroys person property that is by this property that Is deemed to be section deemed to be situated on a reserve situated on a reserve, is (without the Minister's guilty of an offence. consent) is guilty of an of fence.

TRADING WITH INDIANS

Section 91 (1) Section 91 (1)

No person may, without No person can, without the the written consent of the Minister's consent, acquir Minister, acquire title to title to any of the following any of the following property situated on property situated on a reserve: reserve , namely: 119

(a) an Indian grave house; (a) an Indian grave house;

(b) a carved grave pole; (b) a carved grave pole;

(d) a carved house post; or (d) a carved house post; or

(e) a rock embellished with (e) a rock with paintings or paintings or carvings. carvings on it.

Section 91 (2) Section 91 (2)

Subsection (1) does not Subsection (1) doesn't apply apply to chattels referred to goods made for sale by to therein that are Indians. manufactured for sale by Indians.

Section 91 (3) Section 91 (3)

No person shall remove, take No one can remove or away, mutilate, disfigure, disfigure any Indian grave deface or destroy any house, carved grave pole, chattel referred to in totem pole, carved house Subsection (1) without post, or a rock with the written consent of the paintings or carvings on it Minister. without the Minister's written consent.

Section 91 (4) Section 91 (4)

A person who violates this A person who disfigures or section is guilty of an removes the above-mentioned offence and is liable on property is guilty of an summary conviction to a fine offence and is liable on not exceeding two hundred summary conviction to a fine dollars or to imprisonment of not more than two hundred for a term not exceeding dollars or to imprisonment three months. for not more than three months 120

Section 92 (1) Section 92 (1)

No person who is A Department employee, a missionary, or a school teacher cannot trade with an (a) an officer or employee Indian for profit without a of the Department, licence from the Minister. A full-time Department official or employee cannot (b) a missionary engaged in obtain a licence to trade mission work among Indians, with an Indian. or

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.

Section 92 (2) Section 92(2)

The Minister or his duly The Minister or his authorized representative representative can cancel a may at any time cancel a trading licence issued under licence given under this this section. section.

Section 92 (3) Section 92 (3)

A person who violates A person who does trade with Subsection (1) is guilty of an Indian without a licence an offence and is liable on is guilty of an offence and summary conviction to a fine is liable on summary not exceeding five hundred conviction to a fine of not dollars. more than five hundred dollars. 121

Section 92 (4) Section 92 (4)

Without prejudice to Despite Subsection (3), a Subsection (3), an officer Department official who does or employee In the trade with an Indian without Department who contravenes a licence can be fired from Subsection (1) may be his Job. dismissed from office.

REMOVAL Of MATERIALS FROM RESERVES

Section 93 Section 93

A person who, without Anyone who, without the the written permission of Minister's written the Minister or his duly permission, authorized representative

(a) removes or permits (a) removes or allows anyone anyone to remove from a to remove from a reserve reserve

(i) minerals, stone, (i) minerals, or sand, gravel, clay or soil, or

(ii) trees, saplings, (ii) timber or hay, or shrubs, underbrush, timber, cordwood or hay, o r 122

(b) has in his possession (b) holds in possession anything removed from a anything taken from a reserve reserve contrary to this contrary to this section, section,

is guilty of an offence and is guilty of an offence and is liable on summary Is liable on summary conviction to a fine not conviction to a fine of not exceeding five hundred more than five hundred dollars or to imprisonment dollars or to imprisonment for a term not exceeding for not more than three three months, or to both. months, or to both.

Sections 94 to 100 [Repealed, 198S c.27, s.17]

Note: Sections 94 to 100 have been replaced by the new liouor bylaw Section 85.1 (1) to (4).

OFFENCES

Section 101 Section 101

In every prosecution under In every prosecution under this Act a certificate of the Indian Act a certificate analysis furnished by an of analysis given by a analyst employed by the federal or provincial analyst Government of Canada or by a is acceptable evidence of the province shall be accepted facts, and of the authority as evidence of the facts of the analyst even without stated therein and of the proving his signature. authority of the person giving or Issuing the certificate, without proof of the signature of the person appearing to have signed the certificate or his official character, and without further proof thereof. 123

Section 102 Section 102

Every person who Is guilty Every one who breaks the law of an offence against any as stated in this Act or In provision of this Act or any any of its regulations, and regulation made by the no penalty Is provided for Governor in Council or the anywhere else, then he Is Minister for which a penalty liable to a fine of not more is not provided elsewhere in than two hundred dollars or this Act or the regulations, to imprisonment for not more is liable on summary than three months or to both. conviction to a fine not exceeding two hundred dollars or to imprisonment for a term not exceeding three months, or to both.

FORFEITURES AND PENALTIES

Section 103 (1) Section 103 (1)

Whenever a peace officer, a Whenever a peace officer or superintendent or a person Department official believes authorized by the Minister on reasonable grounds that believes on reasonable there has been a sale of farm grounds that an offence produce (In Manitoba, against Section 33, 85.1, 90 Saskatchewan, or Alberta - or 93 has been committed, he Sect ion 33) without the may seize all goods and Minister's consent, or a chattels by means of or In contravention of a liquor by- relation to which he law - Section 85.1, or believes on reasonable selling on reserve property - grounds the offence was Section 90, or unlawful committed. removal of reserve minerals or timber personal property situated on a reserve - Section 93, he can seize those goods. 124

Section 103 (2) Section 103 (2)

All goods and chattels All goods seized can be kept seized pursuant to for three months following Subsection (1) may be the day of the seizure except detained for a period of where proceedings have three months following the already begun in which case day of seizure unless during the goods can be kept until that period proceedings the proceedings are over. under this Act in respect of such offence are undertaken, In which case the goods and chattels may be further detained until such proceedings are finally concluded.

Section 103 (3) Section 103 (3)

Where a person is convicted Where a person Is convicted of an offence against the of selling farm produce on section mentioned in reserve without the Subsection (1), the Minister's consent, or a convicting court or judge contravention of a liquor by• may order that the goods and law, or of selling on reserve chattels by means of or In property or of removing relation to which the reserve minerals or timber, offence was committed, In those goods in question can addition to any penalty be forfeited to the federal imposed, are forfeited to government and disposed of as Her Majesty and may be the Minister decides. This disposed of as the Minister in addition to any other directs. penalty imposed. 125 Section 103 (4) Section 103 (4)

A Justice who is satisfied A Justice who Is satisfied by by information upon oath information upon oath that that there is reasonable there is reasonable ground to ground to believe that there believe that any of the goods are upon a reserve or in any obtained through a violation building, receptacle or of Sections 30, 85.1, 90 and place any goods or chattels 93 are on the reserve, can at by means of or in relation any time Issue a search to which an offence against warrant to search the reserve any of the sections men• or building where the goods tioned in Subsection (1) has are believed to be held. been, is being or is about to be committed, may at any time issue a warrant under his hand authorizing a pe• rson named therein or a peace officer at any time to search the reserve, building, receptacle or place for any such goods or chattels.

Section 104 Section 104

Every fine, penalty or for• When a person breaks the law feiture imposed under this under the Indian Act any fine Act belongs to Her Majesty he pays or any goods which for the benefit of the band are confiscated are held by with respect to which or to the Department for the one or more members of which benefit of the band in the offence was committed or respect of whom the law was to which the offender, if an broken. If the person who Indian, belongs, but the broke the law was an Indian, Governor in Council may from then the fine is held by the time to time direct that the Department for the use of his fine, penalty or forfeiture band. However, the federal shall be paid to a provin• cabinet can say that fine or cial, municipal or local the confiscated goods are to authority that bears in go to the local law whole or in part the expense enforcement authority to help of administering the law pay its costs. The federal under which the fine, cabinet can also say that the penalty or forfeiture is fines or confiscated goods imposed, or that the fine, can be used for the purpose penalty or forfeiture shall of upholding the law which be applied In the manner was broken. that he considers will best promote the purposes of the 1 aw under which the fine, penalty or forfeiture is imposed, or the administration of that law. 126

Section 105 Section 105

In any order, writ, warrant, In any court proceedings it summons or proceeding Issued Is alright to refer to the under this Act It Is Indian concerned by his name sufficient if the name of or the name he is known by. the person or Indian If his name Is not known, referred to therein Is the then it is alright to name given to, or the name describe him in such a way by which the per son or that he can be Identified. Indian Is known, by the person who issues the order, writ, warrant, Summons or proceedings, and If no part of the name of the person is given to or known by the person Issuing the order, writ, warrant, summons or proceedings, It Is sufficient if the person or Indian is described in any manner by which he may be Identified.

Section 106 Section 106

A police magistrate or a A magistrate has power to stipendiary magistrate has decide cases arising from the and may exercise, with Indian Act. over the whole respect to matters arising district over which he has under this Act, jurisdiction power to decide cases under over the whole county, union provincial law. of counties or judicial district in which the city , town or other place for which he Is appointed or in which he has jurisdiction under provincial laws is situated. 127

Section 107 Section 107

The Governor in Council may The federal cabinet can appoint persons to be, for appoint people to be justices the purposes of this Act, of the peace for the purposes justices of the peace and of this Act. Two of them those persons have and may have the authority to exercise the powers and authority of two justices of the peace with regard to

(a) offences under this (a) decide cases under where Act; and people are charged with breaking this Act; and

(b) any offence against the (b) decide cases under the provisions of the Criminal Criminal Code relating to Code relating to cruelty to cruelty to animals, common animals, common assault, assault, breaking and breaking and entering and entering and vagrancy where vagrancy, where the offence the law was broken by an Is committed by an Indian or Indian or the matter involved relates to the person or an Indian or his property. property of an Indian.

Section 108 Section 108

For the purposes of this Act For the purposes of the or any matter relating to Indian Act and any matter Indian affairs relative to Indian affairs the following people are able to take oaths:

(a) persons appointed by (a) persons appointed by the the Minister for the Minister, purpose,

(b) superintendents, and (b) superintendents, and 128

(c) the Minister, Deputy (c) the Minister, Deput Minister and the chief Minister and the chief officer in charge of the officer in charge of the branch of the Department Indian affairs branch. relating to Indian affairs, are ex officio commissioners for the taking of oaths.

Sections 109 to 113 [Repealed, 1985, c.27, s.19]

SCHOOLS

[Burrell and Sanders, Handbook of Case Law on the Indian Act, ] (Department of Indian and Northern Affairs, 1984)p.225: "In most parts of Canada Indian children have been integrated into the regular provincial and territorial school systems. The most important documents governing Indian education are t' agreements on Indian education entered into by the federal government with various provinces, local school boards and Indian bands. These agreements and the patterns of government funding are the real framework for Indian education, not Sections 114 to 123 of the Indian Act. Present patterns allow some examples of Indian-controlled schools in reserve communities".

Section 114 (1)

The Governor In Council may authorize the Minister, in accordance with this Act, to enter into agreements on behalf of Her Majesty for the education In accordance with this Act of Indian chl1dren , with

(a) the government of a province; 129

(b) the Commissioner of the Northwest Territories;

(d) a public or seperate school board; and

(e) a religious or charitable organization.

Section 114 (2)

The Minister may, in accordance with this Act, establish, operate and maintain schools for Indian c hI1dren.

Section 115

The Minister may

(a) pro vide for and make regulations with respect to standards for buildings, equipment, teaching, education, inspection and discipline In connection with schools;

(b) provide for the transportation of children to and from school;

(c) enter into agreements with religious organizations for the support and maintenance of children who are being educated in schools operated by those organizations; and

(d) apply the whole or any part of moneys that would otherwise be payable to or on behalf of a child who is attending residential school to the maintenance of that child at that school. 130

Section 116 (1)

Subject to Section 117, every Indian child who has attained the age of seven years shall attend school.

Section 116 (2)

The Minister may

(a) require an Indian who has attained the age of six years to attend school;

(b) require an Indian who becomes sixteen years of age during the school term to continue to attend school until the end of that term; and

(c) require an Indian who becomes sixteen years of age to attend school for such further period as the Minister considers advisable but no Indian shall be required to attend school after he becomes eighteen years of age.

Section 117

An Indian child is not required to attend school if the child

(a) is, by reason of sickness or other unavoidable cause that is reported promptly to the principal, unable to attend school ; (b) Is, with the permission in writing of the superintendent, absent from school for a period not exceeding six weeks in each term for the purpose of assisting in husbandry or urgent and necessary household duties;

(c) is under efficient Instruction at home or elsewhere, within one year after the written approval by the Minister of such instruction; or

(d) is unable to attend school because there is insufficient accommodation in the school that the child is entitled or directed to attend.

Section 118

Every Indian child who is required to attend school shall attend such school as the Minister may designate, but no child whose parent is a Protestant shall be assigned to a school conducted under Roman Catholic auspices and no child whose parent is a Roman Catholic shall be assigned to a school conducted under Protestant auspices, except by written direction of the parent. 132

Section 119 (1)

The Minister may appoint persons to be called truant officers to enforce the attendance of Indian children at school, and for that purpose a truant officer has the powers of a peace officer.

Section 119 (2)

Without restricting the generality of Subsection (1), a truant officer may, subject to Subsection (2.1),

(a) enter any place where he believes, on reasonable grounds that there are Indian children who are between the ages of seven and sixteen years of age, or who are required by the Minister to attend school;

(b) investigate any case of truancy; and

(c) serve written notice upon the parent, guardian or other person haying the care or legal custody of a child to cause the child to attend school regularly thereafter.

Section 119 (2.1)

Where any place referred to In Paragraph (2)(a) is a dwelling house, a truant officer may not enter that dwelling-house without the consent of the occupant except under the authority of a warrant issued under Subsection (2.2). Section 119 (2.2)

Where on ex parte application a justice of The peace is satisfied by information on oath

(a) that the conditions for entry described in Paragraph (2)(a) exist in relation to a dwelling-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 been refused or that there are reasonable grounds for believing that entry thereto will be refused, he may issue a warrant under his hand authorizing the truant officer named therein to enter that dwelling-house subject to such conditions as may be specified in the warrant.

Section 119 (2.3)

In executing a warrant Issued under Subsection (2.2), the truant officer named therein shall not use force unless he is accompanied by a peace officer and the use of force has been specifically authorized in the warrant. 134

Section 119 (3)

Where a notice has been served in accordance with Paragraph (2) (c) with respect to a child who is required by this Act to attend school, and the child does not within three days after the service of notice to attend school and continue to attend school regularly thereafter, the person upon whom the notice was served is guilty of an offence and is liable on summary conviction to a fine of not more than five dollars or to imprisonment for a term not exceeding ten days, or both.

Section 119 (4)

Where a person has been served with a notice in accordance with Paragraph (2)(c), it is not necessary within a period of twelve months thereafter to serve that person with any other notice in respect of further non-compliance with the provision of this Act, and whenever such person within the period of twelve months fails to cause the child with respect to whom the notice was served or any other child of whom he has charge or control to attend school and continue in regular attendance required by this Act, such person is guilty of an offence and is liable to the penalties imposed by Subsection (3) as if he had been served with the notice. Section 119 (5)

A child who Is habitually late for school shall be deemed to be absent from school .

Section 119 (6)

A truant officer nay take Into custody a child whom he believes on reasonable grounds to be absent from school contrary to this Act and may convey the child to school, using as much force as the circumstances require.

Section 120 [Repealed, 1980-81-82-83, c.110. s.76]

Section 121 (1)

Where the majority of the members of a band belongs to one religious denomination, the school established on the reserve that has been set apart for the use and benefit of that band shall be taught by a teacher of that denomination.

Section 121 (2)

Where the majority of the members of a band are not members of the same religious denomination and the band by a majority of those electors of the band who are present at a meeting called for the purpose requests that day schools on the reserve should be taught by a teacher belonging to a particular religious denomination, the school on that reserve shall be taught by a teacher of that denomination. 136

Section 122

A Protestant or Roman Catholic minority of any band may, with the approval of and under regulations to be made by the Minister, have a seperate day school or day school classroom established on the reserve unless, in the opinion of the Governor in Council the number of children of school age does not so warrant.

Section 123

In Sections 114 to 122,

"child" means an Indian who has attained the age of six years but has not attained the age of sixteen years and a person who Is required by the Minister to attend school;

"school" includes a day school, technical school, high school and residential school;

"truant officer" includes

(a) a member of the Royal Canadian Mounted Pol ice,

(b) a special constable appointed for police duty on a reserve, and

Section 124 Section 124

Where, prior to the 4th day of September, 1951, a reserve or portion of a reserve was released or surrendered to the Crown pursuant to Part I of the Indian Act, chapter 98 of the Revised Statutes of Canada, 1927, or pursuant to the provisions of the statutes relating to the release or surrender of reserves in force at the time of the release or surrender, and

(a) prior to that date (a) Where before September 4, Letters Patent under the 1951 reserve land was Great Seal were issued surrendered under an old purporting to grant a Indian Act and was granted to reserve or portion of a a person before that date reserve so released or then the grant shall be surrendered, or any interest treated as if it had been therein, to any person and made under this Act. the Letters Patent have not been declared void or inoperative by any Court of competent jurisdiction, or

(b) prior to that date a (b) Where before September reserve or portion of a 4, 1951 reserve land was reserve so released or sur• surrendered under an old rendered, or any Interest Indian Act and was, before therein, was sold or agreed that date, sold or agreed to to be sold by the Crown to be sold then the sale or any person, and the sale of agreement to sell shall be agreement for sale has not treated as if It had been been cancelled or by any made under this Act. Court of competent jurisdic• tion declared void or Inoperative, the Letters Patent or the sale or agree• ment for sale, as the case may be, shall, for all pur• poses, be deemed to have been issued or made at the date thereof under the direction of the Governor in Council.