On December 16, 2014, the federal government passed Bill C-428 An Act to Amend the Indian Act, SC 2014 c 38. It says the Act is part of its incremental approach to improving conditions for First Nations communities.
Reception of the bill has been mixed. On the one hand, it repeals longstanding racist and offensive provisions regarding residential schools and restrictions on trade with Indians. On the other hand, critics say the more substantive changes, such as changes to the way band council by-laws are enacted and administered, don’t go far enough, and continue to call for a complete overhaul of the Indian Act. Though it contemplates future changes to the Indian Act, the Amendment Act does not include a plan for comprehensive and collaborative law reform with First Nations participation.
Practical changes introduced by the Amendment Act include those regarding band council by-laws. The Minister is no longer able to disallow band council by-laws enacted under s. 81 and band-councils will no longer have to wait 40 days before their by-laws come into force (see s. 7 of the Amendment Act, which repeals s. 82 of the Indian Act). This is an improvement and arguably a small step toward better recognizing First Nations’ self-governing authority. Another small change clarifies that all fines under band council by-laws belong directly to the band.
New publication requirements for by-laws are introduced and First Nations should ensure they meet these requirements for existing and future by-laws (see s. 9 of the Amendment Act).
Section 36 of the Indian Act, which established Special Reserves is repealed. The section will continue to apply to those parcels of land that were Special Reserves when the Amendment Act came into force, however it appears that Special Reserves will not be created in the future (see s. 6 of the Amendment Act).
The Amendment Act also modernizes some aspects of the Indian Act by repealing especially offensive colonial provisions. It removes all references to residential schools and the truant officers provisions, and repeals an offensive provision regulating the description of Indians in legal proceedings under the Act. It also repeals prohibitions against sale of produce by bands and individuals off reserve in the Prairie Provinces and against trade between Indians (as defined in the Act) and those acting in a fiduciary capacity with respect to Indians.
Finally, the Minister is required to report to the House committee on Aboriginal Affairs on progress made towards introducing new legislation to replace the Indian Act (see s.2 of the Amendment Act). However, there are no requirements for consultation or specific commitments to law reform and this aspect of the Act has therefore drawn significant criticism.
As always, this post is for informational purposes only. Please contact a member of our legal team if you would like legal advice regarding how these changes may affect your First Nation.