An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement (C-428)
A Private Member's Bill, Bill C-428, was introduced by Rob Clarke, M.P. for Desnethé—Missinippi—Churchill River, on June 4, 2012. Bill C-428 received Royal Assent on December 16, 2014. The Act amends the Indian Act by repealing outdated or antiquated clauses and removing barriers to opportunity for First Nations.
Overview of Bill C-428 Amendments to the Indian Act
1. Sections relating to residential schools
In June 2010, as a gesture of reconciliation, the Government of Canada committed to repeal those sections of the Indian Act that allowed for the establishment of Indian Residential Schools and the removal of children from their homes and communities.
These provisions were in the part of the Indian Act dealing with "Schools" (sections 114 to 122).
Bill C-428 repeals:
- Specific references to "residential schools"
- Provisions allowing for forcible removal of children from homes to attend school and related matters
- General requirements and powers which are outdated or unused
- Rights of on-reserve religious majorities and minorities (not currently exercised)
2. Removal of Other Outdated or Antiquated Clauses
Bill C-428 repeals the following outdated and antiquated sections of the Indian Act:
- Section 32 and 33 of the Indian Act which related to the sale or barter of produce. These sections date back to 1881 and have not been enforced for decades.
- Section 36 of the Indian Act was created to address a historical circumstance to bring within the authority of the Indian Act lands held by churches or charitable organizations in trust for First Nation communities in pre-Confederation days. Section 36 is no longer in use. The existing categories within the additions to reserve policy are sufficient to respond to the reserve creation needs of First Nations.
- Section 92, which prohibited an officer or employee of Aboriginal Affairs and Northern Development Canada, a missionary or a school teacher from trading for profit or selling to an Indian goods or chattels without a license issued by the Minister.
- Section 105, which was a provision relating to the identification of an Indian or other person in legal proceedings.
3. Revision to Indian Act sections on By-laws:
Bill C-428 repeals or replaces several sections of the Indian Act which related to by-laws. The revised language eliminates the Minister's oversight in regards to the submission, coming into force and disallowance of by-laws and gives First Nations the autonomy and responsibility over the development, enactment and coming into force of by-laws. The following outlines the key amendments:
Intoxicants by-laws:
Bill C-428 repeals subsection 85.1(3) of the Indian Act therefore removing the Minister's oversight function in regards to the procedural requirements in order for an intoxicant by-law to come into force. As a result, once an intoxicant by-law has been assented to by a majority of the electors of the band who voted at a special meeting of the band called by the council of the band for the purpose of considering the by-law, and publication requirements are met, the by-law will come into force. First Nations are no longer required to forward intoxicant by-laws to the Minister once the aforesaid requirements have been met.
Publication, Accessibility and Coming into Force of By-laws:
Clause 9 of Bill C-428 provides for two improvements:
- It provides for the publication of by-laws enacted by band councils. It requires band councils to publish by-laws on an Internet site, in the First Nations Gazette or in a newspaper that has general circulation on the reserve of the band. A by-law will come into force upon publication or on any later day specified in the by-law. The availability of a by-law, published on an Internet site, must be accessible during the period of time it is in force.
- It requires that the council of the band provide copies of their by-laws upon any person's request.
Previously, band councils enacting by-laws under sections 81 or 85.1 of the Indian Act were required to forward a copy of a by-law to the Minister within four days of its enactment. Upon coming into force, First Nations were responsible for making their by-laws available to their members and the public without explicitly being required to do so in the Act. As well, publication of by-laws was not required under the Indian Act.
In regards to by-laws enacted under section 83 of the Indian Act, Ministerial approval will still be required in order for the by-laws to come into force. Commonly referred to as taxation or money by-laws, these by-laws are processed through the First Nations Tax Commission and not Aboriginal Affairs and Northern Development Canada but must explicitly be approved by the Minister in order to come into effect.
Disallowance power
Clause 7 of Bill C-428 repeals section 82 of the Indian Act. The effect is two-fold in that it means that First Nations are no longer required to forward copies of all by-laws enacted under subsection 81(1), within four days of enactment, to the Minister, and it removes the discretionary disallowance power of the Minister regarding by-laws enacted under subsection 81 of the Indian Act. As a result, First Nations will have autonomy over the enactment and coming into force of by-laws and the day-to-day governance of their communities.
Seizure of goods
Clause 11 of Bill C-428 removes from subsection 103(1) of the Indian Act the reference to section 33, given that this section is repealed by Bill C-428, and also extends search and seizure powers when there is reasonable grounds to believe that an offence has been committed against a by-law made under subsection 81(1) of the Indian Act.
Fine moneys
Bill C-428 amendments regarding fine moneys provide First Nations with direct access to a fine imposed under a by-law made by the council of a band under the Indian Act. This means that by-law fines will no longer belong to "Her Majesty for the benefit of the band ...". Instead, First Nations will be able to access the proceeds of a successful by-law prosecution more efficiently.
4. Annual report to Parliamentary Committee
Bill C-428 requires the Minister of Aboriginal Affairs and Northern Development to report annually on work undertaken in collaboration with First Nations and other interested parties on the development of legislation to replace the Indian Act.
Recent legislative initiatives, such as the First Nations Elections Act, Family Homes on Reserves and Matrimonial Interests or Rights Act and Bill C-33, First Nations Control of First Nations Education Act are but a few examples of initiatives that are a result of consultations with First Nations and either provides an alternative to the Indian Act, or fills a legislative gap.