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Friday Mar 06, 2015
Federal Bill C-428, the Indian Act Amendment and Replacement Act, came into force on December 16, 2014. The many amendments it makes to the Indian Act are now incorporated into the consolidated Indian Act found on the Department of Justice website.
There are at least three key issues that First Nations should be alerted to:
1. Minister cannot disapprove bylaws enacted under s. 81
First Nations now have the authority to pass by-laws under s. 81 without first having to obtain the Minister’s approval. This will have an immediate impact on certain initiatives that are being undertaken by First Nations as the content of these laws will no longer be constrained by AANDC policy. This is especially relevant to dealing with waste and environmental management issues on reserve. The expanded seizure powers in s. 103 of the Act provide greater enforcement authority. Further, the revisions to s. 104 of the Act mean that monies received from fines imposed under s. 81 bylaws now belong to the First Nation. These changes mean that First Nations are in a much stronger position to enact and meaningfully enforce bylaws in all areas than they ever have been before.
2. Mandatory publication of by-laws
The new Section 86 of the Indian Act requires that the council of a band must publish a copy of every by-law made under the Act (meaning by-laws under s. 81, s. 83, and s. 85.1):
a) On an Internet site,
b) In the First Nations Gazette, or
c) In a newspaper that has general circulation on the reserve of the band.
We recommend that bands publish every by-law made under the Act, whether the by-law existed before this amendment or is created after the amendment.
3. No more Special Reserves
With a little legislative sleight of hand, Parliament has replaced section 36 with a new section 36.1. By changing the word “have” to “had”, Parliament has closed the door on the creation of any new special reserves.
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