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
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
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Reserves is repealed.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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Federal Court of Appeal recently released a significant decision that limits the scope of Crown conduct that may trigger itsduty to consult with Aboriginal peoples and reinforces parliamentary privilege.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).