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Bill C-79

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2nd Session, 35th Parliament,
45 Elizabeth II, 1996-97

The House of Commons of Canada

BILL C-79

An Act to permit certain modifications in the application of the Indian Act to bands that desire them

Preamble

WHEREAS the Government of Canada de sires, for the benefit of both bands and the Government, that Indian bands have the op tion of modifying the application of the Indian Act in certain respects in order to increase band council authority for local governance, as an interim measure until such time as self- government agreements are in place, and for other purposes;

AND WHEREAS the Government of Can ada respects the special historic relationship between Her Majesty and Indians, including the treaty relationship, and the practice of In dian languages, cultures and traditions;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as fol lows:

SHORT TITLE

Short title

1. This Act may be cited as the Indian Act Optional Modification Act.

INTERPRETATION AND APPLICATION

Expressions

2. In this Act, words and expressions have the same meaning as in the Indian Act.

Purpose

3. The purpose of this Act is to provide for certain modifications in the application of the Indian Act for those bands that choose to accept them.

Application of this Act

4. (1) The modifications in the application of the Indian Act provided for by this Act apply to each band named in the schedule after the publication in the Canada Gazette of an order made under subsection 5(1) in respect of the band.

Application of Indian Act

(2) For greater certainty, this Act does not affect the application of the Indian Act to any band, or the interpretation of that Act in relation to the band, before the publication of an order made under this Act in respect of that band, or the application to that band, after the publication of the order, of provisions of that Act not referred to in this Act.

Aboriginal and treaty rights

(3) For greater certainty, nothing in the Indian Act, applied in accordance with this Act, shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of Indians, including the inherent right of self-govern ment, by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.

Schedule

5. (1) On receipt of a resolution of the council of a band adopted for that purpose by a majority of the members of the council, the Minister shall, by order, add the name of the band to the schedule.

Limitation

(2) The Minister may not delete the name of a band from the schedule.

MODIFIED APPLICATION OF INDIAN ACT

6. (1) The definition ``reserve'' in subsec tion 2(1) of the Indian Act shall be read as follows:

``reserve''
« réserve »

````reserve''

      (a) means a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band, and

      (b) except in subsection 18(2), sections 20 to 25, 28, 36 to 38, 42, 44, 46, 48 to 51 and 58 to 60, paragraph 81(1)(o.1) and the regulations made under any of those provisions, includes designated lands;''

(2) Paragraph 2(3)(b) of the Act shall be read as follows:

    ``(b) a power conferred on the council of a band is deemed not to be exercised unless it is exercised

      (i) pursuant to the consent of a majority of the councillors of the band who are present at a duly convened meeting of the council, or

      (ii) by a written resolution assented to in writing by all members of the council of the band.''

7. Section 4.1 of the Act shall be read as follows:

Provisions that apply to all band members

``4.1 A reference to an Indian in any of the following provisions is deemed to include a reference to any person whose name is entered in a Band List or who is entitled to have it entered therein: the definitions ``band'', ``Indian moneys'' and ``mentally incompetent Indian'' in section 2, subsections 4(2) and (3) and 18(2), sections 20 and 22 to 25, subsections 31(1) and (3) and 35(4), sections 51, 52, 52.2 and 52.3, subsection 61(1), sections 63 and 65, subsection 66(2), paragraphs 73(1)(g) and (h), section 84, paragraph 87(1)(a), section 88, subsection 89(1) and paragraph 107(b).''

8. The Act shall be read as including the following after section 16:

``BANDS

Capacity

Legal capacity of bands

16.1 A band has the capacity and, subject to this Act, the rights, powers and privileges of a natural person.''

9. The Act shall be read as including the following after section 20:

Rights-
of-way

``20.1 An allotment of possession of land in a reserve under subsection 20(1) may be made subject to a right-of-way for the benefit of other land in the reserve.''

10. Section 24 of the Act shall be read as including the following:

Transfer of right-of-way

``(2) An Indian who is lawfully in posses sion of land in a reserve may, with the approval of the Minister, grant to the band, or to another member of the band, a right-of-way over the land for the benefit of other land in the reserve.''

11. The maximum fine referred to in section 30 of the Act shall be read as $5,000.

12. The Act shall be read as not including the heading before section 32 or sections 32 to 34.

13. Subsection 38(2) of the Act shall be read as follows:

Designation

``(2) A band may, conditionally or uncondi tionally, designate, by way of a surrender to Her Majesty that is not absolute,

    (a) any right or interest of the band and its members in all or part of a reserve, for the purpose of its being leased or a right or interest therein being granted; or

    (b) any right or interest, or future right or interest, of the band and its members in all or part of land that has been requested by the council of the band to be set apart as a reserve, for the purpose of it being leased or a right or interest in it being granted after it has been set apart as a reserve.''

14. Section 43 of the Act shall be read as including the following after paragraph (c):

    ``(c.1) direct that a person shall be deemed to be the spouse of a deceased Indian for the purposes of devise or descent of property under this Act;''

15. (1) Subsection 46(2) of the Act shall be read as follows:

Where will declared wholly void

``(2) Where a will of an Indian is declared by the Minister or by a court to be wholly void,

    (a) where a prior will was executed by the Indian, subject to subsections 45(2) and (3), the prior will is revived; and

    (b) where no prior will was executed by the Indian, the Indian is deemed to have died intestate.''

(2) Section 46 of the Act shall be read as including the following after subsection (2):

Where will declared partly void

``(3) Where the will of an Indian is declared by the Minister or by a court to be void in part only, any bequest or devise affected thereby, unless a contrary intention appears in the will, is deemed to have lapsed.''

16. Section 47 of the Act shall be read as follows:

Appeal to Federal Court

``47. Any person affected by a decision of the Minister made in the exercise of the jurisdiction or authority conferred under sec tion 42 or 43, subsection 45(2) or section 46 may, within six months after the date thereof, appeal the decision to the Federal Court.''

17. (1) Subsection 48(1) of the Act shall be read as follows:

Surviving spouse's share

``48. (1) Where an intestate dies leaving a surviving spouse and the net value of the estate of the intestate does not, in the opinion of the Minister, exceed the amount fixed by the Minister by regulation or, where no such amount is fixed, $75,000, the estate shall go to the surviving spouse.''

(2) The portion of subsection 48(2) of the Act before paragraph (a) shall be read as follows:

Surviving spouse's share

``(2) Where an intestate dies leaving a surviving spouse and the net value of the estate of the intestate, in the opinion of the Minister, exceeds the amount fixed by the Minister by regulation or, where no such amount is fixed, $75,000, that amount shall go to the surviving spouse of the intestate and''

(3) Paragraph 48(3)(b) of the Act shall be read as follows:

    ``(b) the Minister may direct that the surviving spouse shall have the right to occupy any lands in a reserve that were occupied by the intestate at the time of death of the intestate, subject to such conditions as the Minister may direct.''

(4) Subsections 48(6) and (7) of the Act shall be read as follows:

Distribution to brothers, sisters and their children

``(6) Subject to subsection (7), where an intestate dies leaving no surviving spouse, issue, father or mother,

    (a) any interests in reserve land in the estate of the intestate shall be distributed between any surviving brothers and sisters of the intestate in equal shares; and

    (b) the remainder of the estate of the intestate shall be distributed between the intestate's brothers and sisters in equal shares and, where any brother or sister predeceases the intestate, the share of the deceased brother or sister shall be distrib uted between the brother's or sister's chil dren equally.

Distribution among next of kin

(7) Where an intestate dies leaving no surviving spouse, issue, father, mother, broth er or sister,

    (a) any interests in reserve land in the estate of the intestate shall vest in the surviving grandparents of the intestate in equal shares or, where all grandparents predecease the intestate, in Her Majesty for the benefit of the band; and

    (b) the remainder of the estate of the intestate shall be distributed in equal shares among the surviving nieces and nephews of the intestate or, where all nieces and nephews predecease the intestate, among the next of kin of equal degree of consan guinity to the intestate.''

(5) Section 48 of the Act shall be read as not including subsection (8).

(6) Subsection 48(15) of the Act shall be read as follows:

Definition of ``surviving spouse''

``(15) In this section, ``surviving spouse'', in respect of a deceased person,

    (a) includes an individual of the opposite sex with whom the person had cohabited in a conjugal relationship for a period of not less than twelve months, or to whom the person was married according to the custom of a band, at the time of the person's death; and

    (b) does not include an individual referred to in paragraph (a), or to whom the person was married, from whom the deceased person had been living separate and apart for a period of more than twelve months at the time of the person's death.''

(7) Section 48 of the Act shall be read as including the following after section 15:

Regulations

``(16) For the purposes of subsections (1) and (2), the Minister may make regulations fixing an amount for the purpose of the distribution of estates to surviving spouses.''

(8) In the following provisions of section 48, a reference to a widow shall be read as a reference to a surviving spouse, with such modifications as the circumstances require:

    (a) paragraphs 48(2)(a) to (c);

    (b) the portion of subsection 48(2) after paragraph (c);

    (c) paragraph 48(3)(a); and

    (d) subsections 48(4) and (5).

18. Section 53 of the Act shall be read as including the following after subsection (1):

Management of surrendered and designated lands

``(1.1) The Minister may, at the request of the council of a band assented to, by secret ballot, by a majority of the electors of the band who are present at a meeting of the band called for the purpose, by order, and subject to such conditions as are set out in the order, authorize the council to carry out any of the functions of the Minister under subsection (1).

Withdrawal

(1.2) The Minister may at any time with draw an authorization conferred under subsec tion (1.1).''

19. Section 57 of the Act shall be read as follows:

Regulations

``57. The Governor in Council may make regulations

    (a) respecting the cutting, removal and disposal of timber on surrendered and reserve lands and any related activities;

    (b) authorizing the Minister, or a person or council of the band designated by the Minister on such conditions as the Minister may specify, to grant licences to cut, remove and dispose of timber

      (i) on or from surrendered or designated lands,

      (ii) on or from land in a reserve the possession of which has been allotted to a member of the band under subsection 20(1) or subsequently transferred to a member, with the consent of that mem ber, and

      (iii) on or from other reserve lands, with the consent of the council of the band;

    (c) respecting the exploration for, and the development, mining, processing and dis position of, minerals on or underlying surrendered or reserve lands and any related activities;

    (d) authorizing the Minister, or a person or council of the band designated by the Minister on such conditions as the Minister may specify, to grant leases for activities related to the exploration for, and the development, mining, processing and dis position of, minerals on or underlying designated lands;

    (e) prescribing terms, conditions and re strictions in respect of the granting of licences or leases under regulations made under paragraph (b) or (d) and the exercise of rights thereunder, including those re specting

      (i) the protection of the environment,

      (ii) the prevention and extinguishment of forest fires,

      (iii) the location and standards for access roads, works and buildings,

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