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SCRUTINY OF REGULATIONS -- Report No. 65 -- <I>Indian Act</I>


The Standing Joint Committee for the Scrutiny of Regulations has the honour to present its


(Report No. 65 - Indian Act)

Pursuant to its statutory Order of Reference, your Committee wishes to draw the attention of both Houses to various instruments administered by the Department of Indian Affairs and Northern Development.

1. SOR/82-171, Stuart-Trembleur Lake Band (Tanizul Timber Ltd.) Timber Regulations

The Joint Committee first reviewed these Regulations in 1982 and made its concerns respecting various provisions of the Regulations known to the Department of Indian Affairs and Northern Development. Following several exchanges of correspondence, undertakings were received by the Committee to address these concerns either though amendments to the Regulations or, in a few instances, by way of amendments to the Indian Act itself. Certain of these undertakings were given to the Committee by the then Minister of Indian Affairs and Northern Development in a letter dated December 17, 1987.

Aware that the Department was engaged in complex consultations and negotiations with a view to putting in place a new Indian Forestry Management Regime, the Committee was prepared to accept some delays in the resolution of the issues it had drawn to the attention of the Department and its Minister. Between 1988 and 1993, assurances were received on several occasions from departmental officials that the concerns of the Committee would eventually be addressed. In fact, in 1993, a number of issues were resolved by the instrument registered as SOR/93-244. Others were resolved by the enactment of the instrument registered as SOR/95-531. The following matters, however, remained outstanding.

Sections 23 to 28 of Schedule I to the Regulations require the payment of various fees and the posting of security. These provisions contravene your Committee’s scrutiny criteria in that they require payments to be made to the Crown without express authority having been granted by Parliament.

Section 43 of Schedule I to the Regulations purports to govern the disposal of timber and is ultra vires the authority to prescribe the terms and conditions of a licence to cut timber.

Section 48 of Schedule I provides for the cancellation or suspension of a licence and the forfeiture of security deposits. Inasmuch as the Joint Committee is of the view that the Indian Act does not provide authority for the requirement that security be furnished, it is also of the view there is no statutory warrant for a provision directing the forfeiture of such a security.

Section 49 of the same Schedule, for its part, purports to describe and safeguard the rights of action of the Crown in the event a licence is cancelled or moneys are forfeited to the Crown. If section 49 describes what would be the legal rights of the Crown in any event, it is unnecessary. If, on the other hand, it purports to grant the Crown a right of action it would not enjoy in the ordinary course of the law, it is not authorized by the Indian Act.

In the Spring of 1995, the Chairmen of your Committee wrote to the Minister to express the Committee’s concern with the lack of progress in resolving these issues, and in his reply of October 17, 1995, the Hon. Ron Irwin informed the Committee that amendments would be made to the Indian Act that would put the provisions queried by the Committee on a sound legal footing. The Minister indicated that the consultation process leading to the formulation of amendments to that Act would be completed in the Fall of 1995. In the Summer of 1996, the Minister wrote to the Chairmen of the Committee and informed them that he had been authorized to proceed with the proposed amendments to the Indian Act and legislation was in the process of being drafted.

A few months later, the Minister introduced in the House of Commons Bill C-79, An Act to permit certain modifications in the application of the Indian Act to bands that desire them. This proposed legislation was given First Reading on December 12, 1996 but did not proceed further and the Bill died on the Order Paper upon the dissolution of the 35th Parliament. Clause 19 of Bill C-79 would have enacted a new section 57 of the Indian Act which would have provided authority for all of the sections identified above.

On June 23, 1998, the Minister of Indian affairs and Northern Development informed the Joint Committee that Bill C-79 would not be reintroduced, but also stated that her officials were considering other options to address the outstanding concerns of the Committee. There are in fact but two ways to address these concerns. Either the enabling legislation is amended by Parliament to authorize the provisions queried by the Committee or the provisions of the Regulations are amended so as to come within the scope of the authority that Parliament has granted in section 57 of the Indian Act. Insofar as there is apparently no intention to propose amendments to the Act, the Joint Committee considers that the Government should revoke the provisions of the Stuart-Trembleur Lake Band (Tanizul Timber Ltd.) Timber Regulations for which there exists no proper statutory authority. It is not acceptable in a society founded on the rule of law for the government to persist in relying on regulations which it knows do not have a basis in law. Considering that the concerns of the Joint Committee were made known to the Government more than sixteen years ago, and in the absence of any reasonable likelihood of amendments to the Indian Act being made in the near future, the Committee considers that the Government should amend the Regulations without further delay so as to bring its provisions in accord with current statutory authority.

  1. Fifth Report of the Second Session of the Thirty-third Parliament (No.39)

Tabled before the Senate on March 19, 1987 and before the House of Commons on the following day, this Report dealt with the exercise of by-law making powers by Indian bands pursuant to the powers conferred by the Indian Act. The Report noted that:

Although by-laws made by a band council concern local government on the reserve, they nevertheless have a decided impact on the daily lives of those to whom they apply and Indian band councils have a duty to ensure their by-laws are fair, reasonable and authorized by law.

Based on its scrutiny of Indian band by-laws, the Committee expressed serious reservations that:

… existing procedures, and disallowance in particular, are effective to ensure that those living on reserves are governed by laws "that are fair, reasonable and valid".

The Joint Committee informed the Houses that while it would no longer scrutinize individual Indian band by-laws, it would continue to monitor the overall exercise of legislative powers by band councils, as well as the implementation of the recommendations made in the Report. These recommendations were that:

1. The Statutory Instruments Act or the Indian Act be amended so as to exclude by-laws made by elected Indian band councils from the application of the Statutory Instruments Act;

2. The Indian Act be amended to provide guarantees of the rights to notice of delegated legislation and to access such legislation made by Indian band councils;

3. The Indian Act be amended to guarantee that no person may be convicted for a violation of any by-law made under the Act unless it is proved that reasonable steps have been taken to bring the by-law to the notice of those persons likely to be affected by it;

4. The disallowance policy of the Department of Indian Affairs and Northern Development together with a report of the Department’s review of the jurisdictional scope and administrative treatment of by-laws made under the Indian Act, be tabled in both Houses and referred to the appropriate standing committee of each House;

5. That appropriate measures be taken to ensure the enforceability of certain band membership rules and intoxicant by-laws adopted before June 25, 1987 and that were not registered and published as required by the Statutory Instruments Act.

In a comprehensive government response tabled in accordance with Standing Order 109 of the House of Commons in July of 1987, the Government accepted these recommendations. More than a decade later, not a single recommendation has been implemented. The only action taken by the Government has been to exempt, by regulation, Indian band by-laws and membership rules from the examination, registration and publication requirements of the Statutory Instruments Act. The result of this initiative is that since June 25, 1987, there has been no appropriate legal framework to ensure that by-laws made by Indian Band councils in the exercise of powers granted by the Indian Act are made known to those to whom they apply. This absence of any procedural guarantee is disturbing. Your Committee considers that in a free and democratic society, and irrespective of racial, ethnic or national origin, every citizen has a right to be notified of the making of laws that apply to the citizen. To be effective, such a right must be provided by law. The resulting situation would be considered unacceptable in any community. It is no more acceptable when that community happens to be an Indian reserve.

Your Committee recommends that the Government act upon the recommendations of the Fifth Report as soon as possible.

  1. Sixth Report of the Second Session of the Thirty-third Parliament (No. 40)

On October 29, 1987, the Joint Committee presented its Sixth Report to the Senate and the House of Commons. This Report dealt with the validity of a number of proclamations, including that registered as SOR/82-882, purportedly issued under section 4(2) of the Indian Act. It was the opinion of the Joint Committee that the proclamations reported upon were not authorized by the Indian Act, and it was recommended that legislation be introduced providing for the retroactive validation of the proclamations in question.

In the comprehensive response to this Report tabled on behalf of the government in March of 1988, the Minister of Indian Affairs and Northern Development undertook to introduce legislation that would "include a provision to validate existing proclamations on this subject."

In June of 1993, the Joint Committee adopted its Tenth Report of the Third Session of the Thirty-fourth Parliament. In this Report, the Committee drew attention to the fact that more than five years after its Sixth Report had been made, "a bill to implement the undertaking given by the Government […] has yet to be adopted by the Houses although a moratorium has been placed on the issuing of similar proclamations."

In March of 1995, the Minister announced the Government was considering amendments to the Indian Act. In July of 1996, the Committee was informed by the Assistant Deputy Minister, Lands and Trust Services, that the amendment to validate the proclamations in question was included in a list of amendments which the Minister of Indian Affairs and Northern Development had circulated to leaders of First Nation organizations. In October of 1996, the Committee was again assured that a provision retroactively validating the illegal proclamations was included in the proposed amendments to the Indian Act. Although amendments to the Act were introduced both in Bill C-79 and Bill C-25, neither of these Bills included a provision to validate the proclamations, a fact that was acknowledged by the Department in a letter dated May 16, 1997. Your Committee notes that the failure to include such a provision in these Bills was in clear contradiction of the assurances that had been previously given. Some fourteen years have passed since your Committee first raised the issue of the validity of these proclamations with the responsible Department, and some twelve years have gone by since the Houses received a formal commitment by the Government that validating legislation would be introduced.

The preamble to the Canadian Charter of Rights and Freedoms recites that Canada is founded on principles that recognize the rule of law. The Government’s failure to put forward legislation to validate the illegal proclamations issued from 1982 to 1986 brings into question its commitment to those principles. The practical result is that Indian band elections continue to be held in a manner contrary to section 77 of the Indian Act. This brings into doubt the capacity of band councils that have been elected in an irregular manner to legally exercise the financial, administrative and legislative powers which the Act confers upon them.

Your Committee recommends that the government take appropriate legislative action without further delay.

  1. C.R.C.1978, c. 954, Indian Estates Regulations

Section 14 of these Regulations purports to authorize the Minister of Indian Affairs and Northern Development to "deem" certain persons to be the widow of a deceased Indian for the purposes of section 48 of the Indian Act. Section 48 of the Indian Act deals with the distribution of the property of an Indian who dies intestate and, among other things, defines the entitlement of the widow of the intestate. It is the Joint Committee’s view that section 14 is ultra vires section 42(1) of the Indian Act.

Section 14 of the Regulations reads as follows :

14. The Minister may direct that a woman shall be deemed to be the widow of a deceased Indian and, if there are children issue of the said woman and of the deceased Indian, that they shall be deemed to be their children, for the purposes of these Regulations,

(a) where it is established to the satisfaction of the Minister that the woman had for a period of not less than seven years immediately prior to the death of the deceased Indian with whom she had been residing and whom by law she was prevented from marrying by reason of a previous marriage either of the deceased or of herself to another person, or to whom she was married in a form not recognized by law, but maintained and publicly represented by the deceased Indian as his wife; or

(b) where there had been no prior marriage of the deceased Indian or of herself to another person, the woman establishes that she had, for a number of years immediately prior to the death of the deceased Indian with whom she had been residing, been maintained and publicly represented by the deceased Indian as his wife, whether or not there had been children of that relationship.

This section purports to have been made pursuant to section 42(1) of the Indian Act, which provides that :

42. (1) Subject to this Act, all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister and shall be exercised subject to and in accordance with regulations of the Governor in Council.

In section 48 of the Act, Parliament has enacted that the property of an intestate is to be divided between his issue, if any, and his widow. The word "widow", as used in the Indian Act, refers to a "woman who has survived a man to whom she was lawfully married, and who was his wife at the time of death". This term does not include the surviving spouse in a common law relationship. Indeed, the very enactment of section 14 of the Regulations confirms that the Government shares this understanding. If the surviving spouse in a common law relationship were a "widow", as that term is used in section 48 of the Act, there would be no need for section 14 of the Regulations. Neither the Governor in Council nor the Minister has the authority under section 42 of the Act to modify the statutory rule enacted by Parliament so as to authorize a person who is not a widow to a share of an intestate’s estate. In enacting section 14, the Governor in Council has sought to give the Minister the power to modify an Act of Parliament. Absent clear and explicit authority, such a provision is null and void. If it is thought desirable to allow persons other than widows to share in the distribution of an intestate’s estate, Parliament must be asked to amend the Indian Act.

In a letter dated August 7, 1996, the Minister acknowledged that section 14 of the Indian Estates Regulations "is vulnerable to legal challenge". At the same time, the Minister indicated that he had been authorized to initiate amendments to the Indian Act and that one of these amendments would involve enacting a statutory definition of "widow" which would include a common law spouse. The Minister also referred the Joint Committee to the decision of the Supreme Court of Canada in Miron v. Trudel, (1995) 2 S.C.R. 418, a decision to which we come back shortly.

In reply to the Joint Committee’s request for his assurance that "until such time as the Indian Act is amended, section 48 of that Act will be applied in accordance with the intent of Parliament" and "that section 14 of the Regulations will not be resorted to", the Minister stated that until the courts declared section 14 to be invalid, he would continue to use the power conferred by that section "since its non-application would be prejudicial to a common law spouse as his or her right to be entitled to the estate would be taken away."

This response amounts to little else but an assertion that given a sufficient policy justification, the Minister may properly disregard the law made by Parliament and continue to act in a manner that he knows or suspects to be unlawful until such time as he is told his actions are illegal by a court. This is an extraordinary position for an elected member of the House of Commons and a minister of the Crown to take, and is one which your Committee vigorously rejects as both irreconcilable with the rule of law and a denial of constitutional government.

What the Minister failed to appreciate is that the issue is not whether common law spouses should be treated in the same manner as widows for purposes of the intestacy provisions of the Indian Act. That policy issue has been decided by Parliament itself when it enacted section 48 of the Act. Until such time as Parliament changes the policy by amending the Act, that Act applies to all, including ministers, and irrespective of whether or not they agree with the policy. That such a policy may produce results which, in contemporary society, are thought to be socially undesirable does not entitle anyone to disregard the terms of the statute. That the Minister considers the policy reflected in the Act to be flawed is clear. What should be equally clear is that this does not entitle the Government to seek to circumvent the statute by means of an illegal exercise of the regulation-making powers conferred on the Governor in Council in section 42 of the Act.

The decision of the Supreme Court in Miron v. Trudel dealt with the meaning of the word "spouse" rather than "widow". In any event, this decision simply serves to confirm that the legal meaning of spouse does not include a common law spouse. In that case, a very narrow majority of the Court found that a legislative provision restricting certain benefits to "spouses" was contrary to the Canadian Charter of Rights and Freedoms and elected to "read up" the statutory provisions to include common law spouses.

Even if one were to transpose the rationale of the majority in that case to the Indian Act, the result would simply be that section 48 of that Act would be held to contravene the Charter. In the end, what a court might or might not decide in relation to section 48 has no relevance to the issue of the legality of section 14 of the Indian Estates Regulations. The issue is the validity of section 14 of the Regulations, not the constitutional validity of section 48 of the Act.

On December 12, 1996, the House of Commons gave first reading to Bill C-79, the proposed Indian Act Optional Modification Act. If an Indian band elected to have the proposed legislation apply to it, section 48 would have been read, in relation to that band, as allowing common law spouses to participate in the estate of an Indian dying intestate. This Bill was never proceeded with and there is apparently no intention to re-introduce it.

However, it is your Committee’s opinion that the solution put forward in Bill C-79 was deficient. Had this bill been allowed to become law, its application would have resulted in a situation where surviving common law spouses of Indians dying intestate would have been treated differently according to whether the band of which the deceased was a member was one that had elected to be subject to the proposed Indian Act Optional Modification Act. Your Committee has serious doubts that such an approach is consistent with the provisions of the Canadian Charter of Rights and Freedoms. The proposed legislation was also defective in that it failed to provide retroactive validation of previous decisions of the Minister purporting to deem common law spouses to be a widow for the purposes of section 48 of the Indian Act.

In these circumstances, the Committee considers that section 14 of the Indian Estates Regulations should be revoked without further delay. If the Government is of the view that the policy enshrined in the Indian Act according to which only persons lawfully married to a deceased Indian may participate in the distribution of the estate of an intestate is not appropriate, it should ask Parliament to change the statute. One thing should be clear, however, and it is that the Government is without any authority to seek to alter that legislative policy by means of subordinate legislation.

Alternatively, the Government can propose amendments to the Indian Act which will have the effect of allowing common law spouses a share in the estate of an intestate. If the Government chooses this approach, the proposed legislation should include a clause by which Parliament will validate the decisions previously made by the Minister of Indian Affairs and Northern Development under the purported authority of section 14 of the Indian Estates Regulations.

Pursuant to Standing Order 109 of the House of Commons, your Committee requests the Government to table a comprehensive response to this Report.

A copy of the relevant Minutes of Proceedings and Evidence (Issue No. 24, First Session, Thirty-sixth Parliament) is tabled in the House of Commons.

Respectfully submitted,

Senator Céline Hervieux Payette
Gurmant Singh Grewal, M.P.
Joint Chairmen