ABORIGINAL PRACTICE POINTS Individual rights under the Indian Act These materials were originally prepared by Darwin Hanna and updated by Christine J. Mingie for the Continuing Legal Education Society of British Columbia, August 2007.
2 Key Points The most important individual right granted under the Indian Act is the right to be registered as an Indian. Non-Registered Indians may be denied band membership, housing subsidies, tax exemptions, access to band resources and federally funded national programs, rights to live onreserve, and rights to access cultural events on-reserve. The Indian Act provides mechanisms for registration entitlement. A person born after 1985 is entitled to register under s. 6(1) where both parents are or were entitled to registration, and under s. 6(2) where only one parent is or was entitled to registration. Adopted children of a Registered Indian may also be eligible for registration. The adoption of a Registered Indian child by non-indian adults does not destroy the child s entitlement to registration. Persons who may be entitled to be registered should submit an Application for Registration of Children under the Indian Act or an Application for Registration of an Adult under the Indian Act along with supporting documentation. A decision by the Registrar to remove, omit or add a person to the Indian Register is not final and may be protested within three years. The protest decision itself may also be appealed. The Indian Act requires the Registrar to maintain a Band List on which the name of every member of a band is entered until that band assumes control of its own list. The Registrar has the authority to add or delete the name of any person who is or is not entitled to have his or her name included on the list. A band may assume control over its Band List in place of the Registrar if the band establishes written membership rules which contain an appeal mechanism for reviewing membership decisions, and a majority of the electors approve the transfer of control of the list from the Registrar to the band. If a Band List is under the control of the Registrar, decisions made by the Registrar in connection with the list can be protested. However, if a band maintains its own Band List, any appeals must follow the procedure set out in the membership rules for that band. Bands are governed by a chief and a council who may be elected under Indian Act procedures or appointed under customary laws. Section 74 of the Indian Act and the Indian Band Election Regulations govern election procedures. Custom elections are governed by customary procedures of the band, which may or may not be in written form. Many bands following custom election procedures have adopted election codes similar to the Election Regulation. A band council has authority to make decisions on most band affairs, except those decisions that under the Indian Act require consent of the band members. Councils meet regularly and are generally governed by the Indian Band Council Procedure Regulation. A band council s competence is derived from delegated authority and an exercise of that authority must conform with the Indian Act. When making decisions that may affect band members, the council must follow principles of administrative fairness and natural justice. A council of a band is deemed to be a federal tribunal and its decisions are subject to judicial review in Federal Court. The right of an individual to possess reserve lands is determined by band councils with the approval of the Minister. Exclusive possession of a parcel of reserve land can be granted by way of Certificate of Possession or Certificate of Occupation; customary possession is not formally recognized. Almost all business transactions involving reserve lands require a
3 long-term lease of those lands. There are three categories of leases, each authorized by a specific provision in the Indian Act. There are several types of housing programs funded by federal agencies and administered by band councils. Band councils may make decisions on housing matters or delegate authority to a housing committee which determines eligibility. Band councils may also administer social development programs and post-secondary assistance funding. Some bands administer non-insured health benefits under transfer agreements with the federal government. Otherwise, health care services for Registered Indians are the responsibility of Health Canada but may be provided through provincial programs.
4 CONTENTS I. Introduction II. Registration Under the Indian Act A. The Importance of Registration B. Discrimination and Bill C-31 C. Categories of Registration Registration Under Section 6(1) Registration Under Section 6(2) D. The Registration of Adopted Children E. The Indian Register & The Registrar F. Application for Registration G. Protesting a Decision by the Registrar H. Appeal of Protest Decision III. Entitlement to be Included on a Band List A. Applying to be Included on a Band List B. Protesting Decisions Regarding Band Lists IV. Indian Band Governance A. Elections and Voting Rights B. Custom Elections C. Jurisdiction of the Council of the Band D. Disputes with the Band V. Overview of Dealings in Reserve Lands A. Land Allotment B. Certificate of Possession C. Certificate of Occupation D. Former Location Tickets E. Customary Possession F. Lease of Reserve Lands G. Bylaws Concerning Residence on Reserve VI. Housing Programs A. Types of Housing Programs VII. Social Development Programs A. Eligibility for Assistance B. Appeals From Refusal of Benefits VIII. Health Benefits A. Medical Services Plan B. Non-Insured Health Benefits IX. Post-Secondary Assistance
5 I. Introduction to Individual Rights under the Indian Act Individual rights granted under the Indian Act, R.S.C. 1985, c. I-5, as amended (the Indian Act ) are a complex area of the law. The purpose of this paper is to provide an overview of some of the key individual rights that flow directly or indirectly from the Indian Act. These include entitlements to: registration as an Indian in the Indian Register; membership in a band; participation in elections and resolution of disputes with the council of the band; possession and occupation of reserve lands; housing; social development benefits; health benefits; and post-secondary assistance. There are other important individual rights available to Aboriginal people in Canada that arise pursuant to the terms of treaties signed with successive British or Canadian governments. Although the terms of these treaties differ, they usually provide for certain rights such as hunting, trapping and fishing rights and rights to payments of annuities for clothing, ammunition and agriculture. However, this paper does not cover these treaty rights. The terms Indian and Registered Indian are used in this paper as they are defined terms that continue to be used in the Indian Act. II. Registration Under the Indian Act A. The Importance of Registration The most important individual right granted under the Indian Act is the right to be registered as an Indian. Regretfully, the Indian Act continues to discriminate against Aboriginal people on the basis of their registration status and consequently certain tangible and intangible benefits available to Registered Indians are not available to non-registered Indians. The benefits that may be denied to non-registered Indians include band membership, housing subsidies, tax exemptions, access to band resources and access to federally funded national programs and assistance such as non-insured health benefits and post-secondary education funding. As well, non-registered Indians may be denied the right to live on a reserve with members of their family who are Registered Indians and the right to access cultural events on the reserve. Families may be denied the right to bury deceased family members on reserve land if the deceased was a non-registered Indian. Thus, the benefits conferred by registration are of great importance.
6 B. Discrimination and Bill C-31 The registration process is quite complex, in part because the categories of entitlement are not clearly articulated, and requires knowledge of historic provisions in the Indian Act dealing with registration. Major changes were made to the Indian Act in 1985 by Bill C-31, An Act to Amend the Indian Act, S.C. 1985, c. 27 ( Bill C-31 ), in order to eliminate some of the discriminatory registration provisions and permit the reinstatement of registration for some persons who had lost their registration under the former Indian Act. Bill C-31 was brought into force in response to the decision by the United Nations Human Rights Committee that certain discriminatory provisions in the Indian Act that resulted in a woman who lost her status as a Registered Indian by marrying a non-indian in 1970 being denied the right to reside on her reserve and being denied recognition and a sense of belonging to her band, constituted a breach by Canada of its obligations under the United Nations International Covenant on Civil and Political Rights (Lovelace v. Canada, Communication No. R.6/24, U.N. Doc. Supp. No. 40 (A/36/40) (1981)). Despite the enactment of Bill C-31, the registration provisions in the Indian Act continue to discriminate. Because they prefer descendants who trace their ancestry along a paternal line over those who trace their ancestry through a maternal line, the registration provisions continue to prefer male Indians and their descendants to female Indians and their descendants. However, this may change. On June 8, 2007, Justice Ross of the Supreme Court of British Columbia held that the discriminatory registration provisions embodied in s. 6 of the Indian Act violate the Canadian Charter of Rights and Freedoms, 1982, s. 1, and are of no force and effect insofar as they authorize the differential treatment of Indian men and women born before April 17, 1985 and matrilineal and patrilineal descendants born before April 17, 1985 in the conferring of Indian status (McIvor v. Canada (Registrar, Indian and Northern Affairs), 2007 BCSC 827)). The Registrar has filed an appeal of this decision with the British Columbia Court of Appeal. C. Categories of Registration The Indian Act sets out two mechanisms for registration entitlement in sections 6(1) and 6(2). The difference between the two is that a person born after 1985 is entitled to become a Registered Indian under s. 6(1) where both parents are or were entitled to registration, and under s. 6(2) where only one parent is or was entitled to registration. Registration Under Section 6(1) Under s. 6(1) of the Indian Act, the following are entitled to be registered: those persons listed on the Indian Register or on a Band List, whether or not they were or are entitled to have their name on the list (s. 6(1)(a)); those persons who were entitled to registration under the Indian Act before April 17, 1985, whether or not their name actually appeared on a Band List or on the Indian Register (s. 6(1)(a));
7 any person who belongs to a group that is declared to be a band by the Cabinet after April 17, 1985 (s. 6(1)(b)); women who lost their registration by marrying a man who was not a Registered Indian (s. 6(1)(c)); children who lost their registration when their mother was enfranchised for marrying a man who was not a Registered Indian (s. 6(1)(c)); children caught by the double-mother rule because their mother and father s mother were not Registered Indians before their marriage (s. 6(1)(c)); children of unmarried parents whose registration was rejected because their mother was a Registered Indian but their father was not or because they were female children of only one Registered Indian parent (s. 6(1)(c)); any person born on or after April 17, 1985, both of whose parents are entitled to be registered and to membership in the same band, whether their parents are alive or not (s. 6(1)(f)); any Registered Indian who voluntarily enfranchised, including spouses or dependent unmarried children who lost their registration because of a man s enfranchisement (s. 6(1)(d)); any person who lost their registration for residing outside the country for more than five years before 1951 without the consent of an Indian agent (s. 6(1)(e)(i)); any person who lost their registration as a result of becoming a lawyer, doctor, minister or university graduate before 1920 (s. 6(e)(ii)); and any person both of whose parents are entitled to be registered for any reason under the current Indian Act, whether their parents are alive or not (s. 6(1)(f)). Registration Under Section 6(2) Under s. 6(2) of the Indian Act, any person who has only one parent who is or was entitled to be registered under s. 6(1), whether that parent is alive or not, is entitled to registration. However, the child of a person who is registered under s. 6(2) is not entitled to registration unless their other parent is also entitled to registration. As a result, there is a loss of registration over two successive generations of joint Registered Indian - non Registered Indian parenting. D. The Registration of Adopted Children Custom adoption and legally adopted children of a Registered Indian may be eligible for registration because under the Indian Act the definition of child includes: a child born in or out of marriage; a legally adopted child; and a child adopted in accordance with Indian custom. Also, the adoption of a Registered Indian child by non-indian adults does not destroy the child s entitlement to registration (Natural Parents v. British Columbia (Superintendent of Child Welfare), [1976] 2 S.C.R. 751).
8 E. The Indian Register & The Registrar Indian and Northern Affairs Canada ( INAC ) must maintain a list of Registered Indians, referred to as the Indian Register pursuant to s. 5(1) of the Indian Act. Registration is not an automatic process. A person wishing to be registered must apply in writing to the Registrar to be included on the Indian Register. The Registrar is an appointed official who, in addition to maintaining the Indian Register and making decisions in respect of registration, is responsible for Band Lists. The Registrar has the authority to add, delete or omit persons from the Indian Register. F. Application for Registration Persons who may be entitled to be registered should complete either the Application for Registration of Children under the Indian Act Form or the Application for Registration of an Adult under the Indian Act Form and submit it to INAC. The application process can be onerous and requires substantial documentation, including birth, marriage, and death certificates and names and locations of bands to which ancestors belonged. The Registrar may require statutory declarations to prove eligibility, for example statutory declarations from relatives of a deceased father if a birth certificate is silent on paternity. In situations where the applicant has been adopted by a parent who is a Registered Indian, the Registrar may require documentation confirming the legal or custom adoption in order to process the registration application. For a custom adoption, the Registrar may request that the applicant provide affidavits from family members, elders or others, and evidence of the band council resolution showing that the applicant was adopted pursuant to customary procedure. Once the Registrar receives a completed application, he or she will conduct a background review of the applicant and review documents to determine entitlement to registration. The Registrar will render a determination in writing to the applicant, accepting or denying the request for registration. G. Protesting a Decision by the Registrar A decision by the Registrar to remove, omit or add a person to the Indian Register is not final. The Registrar may deny an application for registration on the basis that the applicant has only one parent who is a Registered Indian. Depending upon the facts, it may be possible to advance arguments to counter such a finding. For example, an argument may be made that the applicant's parent should have been registered pursuant to s. 6(1) of the Indian Act. Or, it may be that the parent was adopted by an Indian who qualifies for registration under s. 6(1) even though his or her biological parent's eligibility for registration rested on s. 6(2). In this case, the applicant's parent should have been registered in accordance with his or her adopted parent's eligibility under s. 6(1) of the Indian Act. Section 14.2 of the Indian Act provides that the Registrar s decision may be appealed by a procedure referred to as a protest. Protests must be submitted to the Registrar in writing within three years from the date of the Registrar s written decision. When a protest is received, the Registrar will conduct an investigation and may receive further evidence in affidavit form or in any other manner. Once the Registrar has made a decision on the protest, the applicant is notified in writing.
9 H. Appeal of Protest Decision Section 14.3(1)(b) of the Indian Act allows an applicant to appeal a protest decision of the Registrar within six months after the protest decision was rendered. In British Columbia an appeal of a protest decision is heard by the Supreme Court of British Columbia, which has the jurisdiction to affirm, vary or reverse the Registrar s protest decision or to refer the subject matter of the appeal back to the Registrar for reconsideration or further investigation. III. Entitlement to be Included on a Band List A. Applying to be Included on a Band List Sections 8 and 9 of the Indian Act require the Registrar to maintain a Band List on which the name of every member of a band is entered until the band assumes control of its own Band List. A Registered Indian is automatically entitled to have his or her name entered on a Band List maintained by the Registrar if that person: was entitled to be entered on the Band List before April 17, 1985, was entitled to be registered under s. 6(1)(c) or s. 6(1)(d) of the Indian Act and ceased to be a member of a band under previous discriminatory and enfranchisement provisions of the Indian Act, or is the child of parents who are both entitled to have their names entered on the Band List. The Registrar has the authority to add to, or delete from, a Band List that it maintains, the name of any person who is or is not entitled to have his or her name included on the Band List. A band may assume control over its Band List in place of the Registrar if the band establishes written membership rules which contain an appeal mechanism for reviewing membership decisions, and a majority of the electors approve the transfer of control of the Band List from the Registrar to the band. To determine whether a band has assumed control of its Band List, an inquiry should be made to INAC or to the band directly. If the band controls its own Band List, a copy of the membership rules may be obtained from the band. Individuals have a right to access membership rules under the Access to Information Act, R.S.C. 1985, c. A-1 (Twinn v. Canada (Minister of Indian Affairs and Northern Development), [1988] 1 C.N.L.R. 159 (F.C.T.D.)), following the application process established in the membership rules. Most band membership rules provide automatic membership for children of band members. Adopted children of a band member may also be entitled to be included on a Band List (Moon v. Campbell River Indian Band, [1997] 1 C.N.L.R. 77 (F.C.T.D.), affirmed [1999] F.C.J. No. 1094 (F.C.A.)). A band cannot disregard Bill C-31 deny membership to anyone entitled to have his or her name on the Band List under the Indian Act (Scrimbitt v. Sakimay Indian Band Council, [2000] 1 C.N.L.R. 205 (F.C.T.D.)). Depending on the band's membership rules, a person may be eligible for band membership but not for registration as an Indian within the meaning of the Indian Act.
10 B. Protesting Decisions Regarding Band Lists If a Band List is under the control of the Registrar, decisions made by the Registrar in connection with Band Lists can be protested and subsequently appealed in the same manner as decisions made in registration matters. However, if a band maintains its own Band List, a person who is unhappy with a decision to add or delete their name from the Band List must follow the appeal procedure set out in the membership rules for that band. If an applicant feels that the band s ultimate decision is unfair or that the membership rules were not followed by the band, he or she may apply for judicial review to the Federal Court within 30 days after the decision was made by the band. IV. Indian Band Governance A. Elections and Voting Rights Section 74 of the Indian Act and the Indian Band Election Regulations, C.R.C. 1978, c. 952 (the Election Regulation ) govern Indian Act election procedures. Bands are governed by a chief and a council of the band who may be elected under Indian Act procedures or appointed under customary laws. Bands that are subject to the Indian Act election procedures are listed in the Indian Bands Council Elections Order, SOR/97-138 (the Order ). Bands that are not listed on the Order follow customary rules for the election or appointment of a chief and council members. In order to be eligible to vote in elections, a person must be on the Band List and be at least 18 years old. Electors are able to make nominations and elect a chief and members of the council of the band. The Election Regulation requires the band to provide the electoral officer with the last known address of all electors who do not reside on a reserve. Before an election, the electoral officer must mail a nomination form and ballot to any elector who does not reside on the reserve. If the band runs its elections according to the Election Regulation, it must post the voter s list in at least one conspicuous place on the reserve at least 30 days before the election with prescribed details of the meeting. If a band member is not listed on the voter's list prior to an election and wishes to be on the voter s list, the member must demonstrate to the electoral officer that his or her name was improperly omitted and the electoral officer must correct the voter s list. If a person s name is not added to the voter s list after evidence has been provided to the electoral officer demonstrating that person s qualification to vote, they may apply for a judicial review to the Federal Court within 30 days after the electoral officer s determination. A candidate for election or an elector may appeal within 45 days after the election to the Assistant Deputy Minister if alleging a corrupt election practice, a violation of the Indian Act or Election Regulation that might have affected the results of the election, or a nominated person was ineligible to be a candidate. The Minister may investigate and consider the appeal, and in doing so, will notify affected parties and provide a right of response. If it appears to the Minister that any of the above allegations are valid, he or she will report the matter to the Governor in Council. If the Minister rejects the appeal, judicial review is possible after first appealing the Minister s
11 decision, applying for reconsideration by the Minister or appealing the Minister s decision to the Governor in Council (Charles v. Semiahmoo Band Council, [1998] F.C.J. No. 45 (F.C.T.D.)). B. Custom Elections Some bands have opted not to be subject to the election provisions of the Indian Act and the Election Regulation. Their elections are governed by the customary election procedures of the band, which may or may not be rendered in written form. Many bands following custom election procedures have adopted their own election codes which may be similar to the Election Regulation. Some bands have no written rules and have a hereditary chief and council of the band. There is much debate over whether a band can rely upon tradition to disallow democratic election practices. That issue remains unresolved, but it has been resolved that a band cannot deny members who have had their membership re-instated pursuant to Bill C-31 the right to vote in band elections (Scrimbitt v. Sakimay Indian Band Council,,supra). A custom election code may set out a process for appealing the voter s list or the results of an election. If an applicant feels that the appeal process was not followed, the election was corrupt in some way, or that a decision made in connection with the election was unfair, they may apply for judicial review to the Federal Court. Whether an election is held pursuant to the Indian Act or custom, the election process must nevertheless be transparent and fair. Reasonable notice of an election must be given to all the members of the band. Otherwise, the effect is to disenfranchise the members who were not notified or present at the election and such an election is invalid (Salt River First Nation 195 (Council) v. Salt River First Nation 195, 2003 FCA 385). C. Jurisdiction of the Council of the Band A council of the band has the authority to make decisions with respect to most band affairs, other than those decisions that under the Indian Act require consent of the members of the band. Councils of the band meet on a regular basis and are generally governed by the Indian Band Council Procedure Regulations, C.R.C., c. 950 (the Council Regulation ). The Council Regulation sets out standard rules for the conduct of meetings of the council including quorum, voting and the establishment of committees. Any member of the band may attend regular meetings of the council but cannot vote or otherwise participate in the council meetings unless invited to do so. The decisions of the council are made by band council resolution. The council cannot pass a resolution unless a quorum of council is present and votes in support of the resolution. Resolutions must be debated and passed in accordance with the rules and guidelines of the band and also in accordance with the principles of democracy (Balfour v. Norway House Cree Nation, 2006 FC 213). The practice, whether customary or not, of adopting a resolution in secret meetings and ratifying the resolution at a subsequent duly convened meeting, without discussion and debate, is not valid. A band council s competence is derived purely from delegated authority and an exercise of that authority is only valid if it strictly conforms with the Indian Act (Isolation Sept-Iles Inc. c.
12 la band des Montagnais de Sept-Iles et Maliotenam, [1989] 2 C.N.L.R. 49). The powers granted to the council more closely resemble the powers of municipal councils than those possessed by the board of directors under company law. The corporate law practice of obtaining approval by written consent resolution cannot be extended to resolutions under the Indian Act (Vollant v. Sioui, [2007] 2 C.N.L.R. 375 (F.C.T.D.); Leonard v. Gottfriedson, [1982] 1 C.N.L.R. 60 (B.C.S.C.)). Band council decisions are implemented by the band s administrative staff. Typically, bands will have a band manager, education coordinator, social assistance worker and a housing manager. D. Disputes with the Band The council of the band may make a decision which adversely affects the interests of a band member. Often, a dispute will arise due to miscommunication or lack of due process in the decision-making process. The persons who serve as council members are fiduciaries insofar as the members of the band are concerned (Assu v. Chickite, [1999] 1 C.N.L.R. 14 (B.C.S.C.)). In making a decision that may affect a band member, the council of the band must follow principles of administrative fairness and natural justice. The council must provide notice to the affected person of the meeting at which a decision will be made; disclose relevant information and any concerns the council may have; and give the person an opportunity to be heard (Sheard v. Chippewas of Rama First Nation Band Council, [1997] 2 C.N.L.R. 182 (F.C.T.D.)). As noted by Justice Rothstein in Long Lake Cree Nation v. Canada (Minister of Indian and Northern Affairs), [1995] FCJ No. 1020 (F.C.T.D.) at para. 31: Councils must operate according to the rule of law whether that be written law, custom law or the Indian Act and cannot take the law into their own hands. Otherwise, there is anarchy. The people entrust the councillors to make decisions on their behalf and councillors must carry out their responsibilities in a way that has regard for the people whose interest they have been elected to protect and represent. If a dispute with the band arises, the first step in attempting to resolve the dispute is to contact the band employee who manages the relevant portfolio or an INAC official who works with the band and obtain further information. Normally, a letter is forwarded to the council of the band or INAC setting out the nature of the dispute and requesting a meeting with the council of the band to discuss the issue. A council of the band is deemed to be a federal tribunal under the Federal Courts Act, R.S.C. 1985, c. F-7, and its decisions are subject to judicial review in Federal Court (Vollant v. Sioui, supra). A band member has 30 days to apply for a judicial review of any final band decision. V. Overview of Dealings in Reserve Lands Section 91(24) of the Constitution Act, 1867, grants exclusive legislative jurisdiction over Indians and lands reserved for Indians to the federal government. The title to lands reserved for Indians is held by the Crown in right of Canada for the use and benefit of a band (see the s. 2(1) definition of reserve in the Indian Act). The following provides an overview of dealings in reserve lands; for a more comprehensive examination of reserve land transactions, see Chapter 17, Land Governed Under the Indian Act, in the Due Diligence Deskbook, looseleaf (CLEBC, 2007).
13 Historically, INAC was responsible for the administration and management of reserve lands for the use and benefit of a specific band. While that is still the case for the majority of reserve lands, INAC no longer administers and manages lands that are the subject of self-government or land rights agreements. Under self-government agreements and accompanying federal legislation, a band may obtain the right to manage reserve lands without INAC s involvement. Bands who choose to opt into the First Nations Land Management Act, S.C. 1999, c. 24, are legally responsible for managing their lands in accordance with the First Nation Land Management Agreement. Several bands are now operating under this legislation. The right to possess reserve lands is determined by band councils with the approval of the Minister pursuant to s. 20 of the Indian Act. There is no automatic right of possession or residence on reserve lands and persons without the requisite authority to possess, or reside on, reserve land are technically trespassing (Squamish Indian Band. v. Findlay, [1981] 3 C.N.L.R. 58 (B.C.C.A.)). Persons who trespass on reserve lands without authority may be subject to a summary conviction pursuant to s. 30 of the Indian Act. Almost all business transactions concerning reserve lands involve a long-term lease of those lands. There are three categories of leases, each authorized by a specific provision in the Indian Act: land that has been surrendered or designated for lease; land in the possession of individual band members; and unallotted reserve lands that are uncultivated or unused. Apart from the lease of reserve lands, the Minister has discretion under s. 28(2) to issue permits authorizing any person to occupy or use reserve lands or a portion thereof, or to reside or otherwise exercise rights on a reserve for a period not exceeding one year. If the permit is to be for a period longer than one year, the consent of the band council is required. Different types of permits authorizing the use of a reserve are available and include utility permits, agricultural or grazing permits and timber, sand or gravel removal permits. Other permits, such as memoranda of understanding and letter permits, are issued to government departments that require reserve lands for federal services. Unless authorized under s. 28(2) by a Minister s permit and/or by resolution of the council of the band, any agreement, deed or other instrument purporting to permit or allow a non-band member to occupy, use or reside on reserve lands is void. A. Land Allotment With the approval of the Minister, a band council can allot parcels of land to Registered Indians pursuant to s. 20 of the Indian Act, granting exclusive right of possession over that parcel of reserve land. In considering a grant of an allotment, the band must follow the principles of administrative fairness and adhere strictly to band council resolution procedures (Kamloops Indian Band v. Gottfriedson, [1982] 1 C.N.L.R. 60) (B.C.S.C.)). After the band council has made the initial decision to grant an allotment, the allotment may be formalized by the issuance of a Certificate of Possession or a Certificate of Occupation.
14 B. Certificate of Possession A Certificate of Possession allows a Registered Indian to possess a parcel of reserve land and is proof of lawful possession. Such possession has all the characteristics of a fee simple ownership in that the person can occupy the land without interference. However, title remains vested in the Crown. A Registered Indian can sell their right of possession to the band or another member of the band with the consent of the Minister. If a Registered Indian ceases to be entitled to reside on the reserve, they must transfer their right of possession to the band or another member of the band within six months. Approval by the Minister is not required for transfers in these circumstances. If the person does not effect the transfer within six months, the right of possession of the land reverts to the band automatically but the band must compensate the person for any permanent improvements made by the departing person. C. Certificate of Occupation A Certificate of Occupation is granted pursuant to s. 20(5) of the Indian Act and allows the occupation of reserve land for an initial two year period, extendable to four years. A resolution by the band council is needed to obtain this certificate and for any extensions. The Minister makes the final determination on extensions. A Certificate of Occupation may be used as a first step in applying for a Certificate of Possession. It can be put into place if there are conditions that are to be fulfilled before the Minister approves the allotment. At the expiration of the time allowed for occupation, a decision must be made to grant a Certificate of Possession or to refuse the allotment. D. Former Location Tickets The issuance of location tickets under former Indian Acts is proof of lawful possession of reserve land. A person, whether registered or not, who holds a location ticket is deemed to hold a Certificate of Possession in respect of those lands. E. Customary Possession A person can be in lawful possession of reserve land by custom or tradition. However, the Indian Act does not recognize such land holdings and the person may not have recourse if a conflict develops over his or her right to possess the land. Evidence will be required to support a claim relating to custom or traditional land holding. An elder's testimony that the individual or the individual's family was given lawful possession of the parcel of land and how it was acquired may be required. Minutes of band council meetings may also be useful in establishing a claim. The Supreme Court of British Columbia has held that customary use does not create a legal interest that conflicts with the Indian Act (Lower Nicola Indian Band v. Trans Canada Displays Ltd., 2000 BCSC 1209). F. Lease of Reserve Lands Section 58(3) of the Indian Act allows the Minister to lease land legally possessed by a Registered Indian.
15 Case law has affirmed the communal nature of reserve land and has limited the power of the Minister to approve reserve land developments which are opposed by a band. In Tsartlip Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [2000] 3 C.N.L.R. 386 (F.C.A.), the court overturned the Minister s decision allowing a band member to lease reserve lands for a trailer park despite an objection by the band council. The court held that the Minister had a duty to ensure that the objectives of the Indian Act were not defeated and to address the interests of the band in making his decision. G. Bylaws Concerning Residence on Reserve A band may have a bylaw in place that prohibits certain persons from residing on the reserve. In order to have effect, such a bylaw must be properly drafted, comply with the Indian Act and have been submitted to the Minister for review (Six Nations of Grand River Band Council v. Henderson, [1997] 1 C.N.L.R. 202 (O.C.J.)). However, such a bylaw may conflict with the Lovelace v. Canada United Nations Human Rights decision, supra, if the bylaw has a discriminatory effect. VI. Housing Programs A. Types of Housing Programs There are several types of housing programs administered by councils of the band and funded by various federal agencies. Band councils may make decisions on housing matters and may delegate authority to a housing committee, which determines eligibility with respect to the allocation of housing funds. When making decisions, the band council or housing committee is under a general duty of procedural fairness. As previously indicated, band councils are considered federal tribunals and their decisions are subject to scrutiny under administrative law principles. Some of the key funding programs supporting on-reserve housing are: subsidy programs providing subsidies to Registered Indians, through their bands, to build new houses or renovate existing houses; direct lending programs provided by the CMHC for social housing projects; residential rehabilitation assistance programs providing financial assistance to band councils or Registered Indians to repair substandard homes; non-profit housing programs available to Registered Indians to build, purchase or renovate affordable rental housing; proposal development funding providing interest-free loans to band councils for non-profit housing projects; loan insurance programs providing loan insurance to Registered Indians for the construction, purchase or renovation of a home; and
16 First Nations market housing funds a loan guarantee program designed to make it easier for Registered Indians to obtain loans for the construction, purchase or renovation of houses. VII. Social Development Programs INAC funds band councils to administer benefits and services for basic requirements for food, clothing and shelter to Registered Indians who are in financial need. The program s benefits include disability payments, hardship assistance, special needs allowance, natal allowance, diet allowance, camp fee allowance, December supplementary allowance, school start up allowance, work clothes/work transportation allowance, burial or cremation allowance, adult in-home care allowance, adult institutional care allowance, family support services allowance, health benefits allowance, and insured and non-insured benefits. A. Eligibility for Assistance In assessing the eligibility of an applicant for social assistance, consideration is given to residency, the family unit, dependency, other available sources of income, existing assets and any special circumstances. Applicants must be a resident on the reserve but there is no requirement that they be a band member or a Registered Indian. The denial of welfare benefits by the council of the band to an unregistered person married to a Registered Indian has been held to be discriminatory (Shubenacadie Indian Band v. Canada (Canadian Human Rights Commission) (Re MacNutt), [2000] 4 C.N.L.R. 275 (F.C.A.), leave to appeal dismissed [2000] S.C.C.A. No. 398 (QL)). B. Appeals From Refusal of Benefits A person can request that the administering authority (usually the council of the band) review a decision of the band s social development worker with respect to a refusal to grant an allowance or service, a reduction of an allowance, or the cancellation or suspension of an allowance or service. If the person is not satisfied with the results of the administrative review, they may request that the case be heard by an appeals committee for final determination, subject to review by the Federal Court. VIII. Health Benefits Health services for Aboriginal people are the responsibility of the federal and provincial governments. The province provides insured physician and hospital services and the federal government provides some treatment and public health services. A. Medical Services Plan The province of British Columbia provides health care programs through the Medical Services Plan to all persons who reside in British Columbia. This plan provides insured health care services by physicians and hospitals in the province. The Medical Services Branch of Health Canada pays the premiums on behalf of all Registered Indians. To apply for coverage under the Medical Services Plan, an applicant must obtain and complete a Medical Services Plan Application for Enrolment Form from the provincial
17 government. Registered Indians must provide their registration numbers on the application so that premiums will be paid by the federal government. Newborn children of Registered Indians are covered for the first three months to give parents time to complete the registration process with INAC. B. Non-Insured Health Benefits Registered Indians are covered by the non-insured health benefits provided by the Medical Services Branch of Health Canada. To receive non-insured health benefits, proof of a Care Card and registration status are required. Noninsured health benefits include coverage for prescription drugs, medical equipment, eyeglasses, medical transportation, dental care, and mental health care and counselling. Some bands administer their own non-insured health benefits through a transfer agreement with the federal government. If a person belongs to a band that administers non-insured health benefits, they must contact the band directly to receive non-insured health benefits. A person may appeal a decision denying coverage for non-insured health benefits. For benefits administered by Health Canada, there are three levels of appeal available. To start an appeal, a person must write a letter to the relevant section of the Medical Services Branch of Health Canada setting out the issue and stating the condition for which the benefit is being requested, the diagnosis and prognosis, relevant diagnostic test results, and justification for the proposed treatment. Supporting documentation must be supplied If a person does not agree with the appeal decision, he or she can proceed further by appealing to the regional director of the Medical Services Branch of Health Canada, who will refer the appeal to a committee for reconsideration. If the person does not agree with the subsequent decision of the regional director, he or she can appeal to the director general of the Medical Services Branch of Health Canada. If non-insured health benefits are administered by a band, the band s community health representative should be contacted to obtain the appeal policy and procedures. IX. Post-Secondary Assistance INAC provides some post-secondary education funding to assist Registered Indian students with tuition fees, books, travel and living expenses. The distribution of these funds is usually administered by the band and many bands have education committees that make funding decisions on behalf of the Registered Indian students. Students who have been denied post-secondary educational assistance can request that the band reconsider the decision to deny funding. Considering the importance of this funding for students and their families, it may be appropriate to also contact the INAC administering body for this program to ensure that the band has complied with INAC s program funding requirements. If the reconsidered decision is unfavourable or unfair, a student may be able to obtain judicial review of the decision. Post-secondary educational assistance has historically been quite comprehensive and a denial of these benefits to eligible students will have a significant and long-lasting impact.