Indian Act (R.S.C., 1985, c. I-5)

Marginal note:Exemption from seizure

29 Reserve lands are not subject to seizure under legal process.

Trespass on Reserves

Marginal note:Penalty for trespass

30 A person who trespasses on a reserve is guilty of an offence and liable on summary conviction to a fine not exceeding fifty dollars or to imprisonment for a term not exceeding one month or to both.

Marginal note:Information by Attorney General

• 31 (1) Without prejudice to section 30, where an Indian or a band alleges that persons other than Indians are or have been

  • (a) unlawfully in occupation or possession of,

  • (b) claiming adversely the right to occupation or possession of, or

  • (c) trespassing on

  a reserve or part of a reserve, the Attorney General of Canada may exhibit an information in the Federal Court claiming, on behalf of the Indian or band, the relief or remedy sought.

• Marginal note:Information deemed action by Crown

  (2) An information exhibited under subsection (1) shall, for all purposes of the Federal Courts Act, be deemed to be a proceeding by the Crown within the meaning of that Act.

• Marginal note:Existing remedies preserved

  (3) Nothing in this section shall be construed to impair, abridge or otherwise affect any right or remedy that, but for this section, would be available to Her Majesty or to an Indian or a band.

32 [Repealed, 2014, c. 38, s. 5]

33 [Repealed, 2014, c. 38, s. 5]

Roads and Bridges

Marginal note:Roads, bridges, etc.

• 34 (1) A band shall ensure that the roads, bridges, ditches and fences within the reserve occupied by that band are maintained in accordance with instructions issued from time to time by the superintendent.

• Marginal note:Idem

  (2) Where, in the opinion of the Minister, a band has not carried out the instructions of the superintendent issued under subsection (1), the Minister may cause the instructions to be carried out at the expense of the band or any member thereof and may recover the cost thereof from any amounts that are held by Her Majesty and are payable to the band or member.

Lands Taken for Public Purposes

Marginal note:Taking of lands by local authorities

• 35 (1) Where by an Act of Parliament or a provincial legislature Her Majesty in right of a province, a municipal or local authority or a corporation is empowered to take or to use lands or any interest therein without the consent of the owner, the power may, with the consent of the Governor in Council and subject to any terms that may be prescribed by the Governor in Council, be exercised in relation to lands in a reserve or any interest therein.

• Marginal note:Procedure

  (2) Unless the Governor in Council otherwise directs, all matters relating to compulsory taking or using of lands in a reserve under subsection (1) are governed by the statute by which the powers are conferred.

• Marginal note:Grant in lieu of compulsory taking

  (3) Whenever the Governor in Council has consented to the exercise by a province, a municipal or local authority or a corporation of the powers referred to in subsection (1), the Governor in Council may, in lieu of the province, authority or corporation taking or using the lands without the consent of the owner, authorize a transfer or grant of the lands to the province, authority or corporation, subject to any terms that may be prescribed by the Governor in Council.

• Marginal note:Payment

  (4) Any amount that is agreed on or awarded in respect of the compulsory taking or using of land under this section or that is paid for a transfer or grant of land pursuant to this section shall be paid to the Receiver General for the use and benefit of the band or for the use and benefit of any Indian who is entitled to compensation or payment as a result of the exercise of the powers referred to in subsection (1).

Special Reserves

36 [Repealed, 2014, c. 38, s. 6]

Marginal note:Special reserves

36.1 Where lands the legal title to which is not vested in Her Majesty had been set apart for the use and benefit of a band before the coming into force of this section, the effect of section 36 of this Act, as it read immediately before the coming into force of this section, continues in respect of those lands and this Act applies as though the lands were a reserve within the meaning of this Act.

Surrenders and Designations

Marginal note:Sales

• 37 (1) Lands in a reserve shall not be sold nor title to them conveyed until they have been absolutely surrendered to Her Majesty pursuant to subsection 38(1) by the band for whose use and benefit in common the reserve was set apart.

• Marginal note:Other transactions

  (2) Except where this Act otherwise provides, lands in a reserve shall not be leased nor an interest in them granted until they have been designated under subsection 38(2) by the band for whose use and benefit in common the reserve was set apart.

Marginal note:Surrender to Her Majesty

• 38 (1) A band may absolutely surrender to Her Majesty, conditionally or unconditionally, all of the rights and interests of the band and its members in all or part of a reserve.

• Marginal note:Designation

  (2) A band may, conditionally or unconditionally, designate, by way of a surrender to Her Majesty that is not absolute, any right or interest of the band and its members in all or part of a reserve, for the purpose of its being leased or a right or interest therein being granted.

Marginal note:Conditions — surrender

• 39 (1) An absolute surrender is void unless

  • (a) it is made to Her Majesty;

  • (b) it is assented to by a majority of the electors of the band

    • (i) at a general meeting of the band called by the council of the band,

    • (ii) at a special meeting of the band called by the Minister for the purpose of considering a proposed absolute surrender, or

    • (iii) by a referendum as provided in the regulations; and

  • (c) it is accepted by the Governor in Council.

• Marginal note:Minister may call meeting or referendum

  (2) If a majority of the electors of a band did not vote at a meeting or referendum called under subsection (1), the Minister may, if the proposed absolute surrender was assented to by a majority of the electors who did vote, call another meeting by giving 30 days’ notice of that other meeting or another referendum as provided in the regulations.

• Marginal note:Assent of band

  (3) If a meeting or referendum is called under subsection (2) and the proposed absolute surrender is assented to at the meeting or referendum by a majority of the electors voting, the surrender is deemed, for the purposes of this section, to have been assented to by a majority of the electors of the band.

• Marginal note:Secret ballot

  (4) The Minister may, at the request of the council of the band or whenever he considers it advisable, order that a vote at any meeting under this section shall be by secret ballot.

• Marginal note:Officials required

  (5) Every meeting under this section shall be held in the presence of the superintendent or some other officer of the Department designated by the Minister.

Marginal note:Conditions — designation

39.1 A designation is valid if it is made to Her Majesty, is assented to by a majority of the electors of the band voting at a referendum held in accordance with the regulations, is recommended to the Minister by the council of the band and is accepted by the Minister.

Marginal note:Certification — surrender

40 A proposed absolute surrender that is assented to by the band in accordance with section 39 shall be certified on oath by the superintendent or other officer who attended the meeting and by the chief or a member of the council of the band and then submitted to the Governor in Council for acceptance or refusal.

Marginal note:Certification — designation

• 40.1 (1) A proposed designation that is assented to in accordance with section 39.1 shall be certified on oath by an officer of the Department and by the chief or a member of the council of the band.

• Marginal note:Ministerial decision

  (2) On the recommendation of the council of the band, the proposed designation shall be submitted to the Minister who may accept or reject it.

Marginal note:Effect of surrenders and designations

41 An absolute surrender or a designation shall be deemed to confer all rights that are necessary to enable Her Majesty to carry out the terms of the surrender or designation.

Descent of Property

Marginal note:Powers of Minister with respect to property of deceased Indians

• 42 (1) Subject to this Act, all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister and shall be exercised subject to and in accordance with regulations of the Governor in Council.

• Marginal note:Regulations

  (2) The Governor in Council may make regulations providing that a deceased Indian who at the time of his death was in possession of land in a reserve shall, in such circumstances and for such purposes as the regulations prescribe, be deemed to have been at the time of his death lawfully in possession of that land.

• Marginal note:Application of regulations

  (3) Regulations made under subsection (2) may be made applicable to estates of Indians who died before, on or after September 4, 1951.

Marginal note:Particular powers

43 Without restricting the generality of section 42, the Minister may

• (a) appoint executors of wills and administrators of estates of deceased Indians, remove them and appoint others in their stead;

• (b) authorize executors to carry out the terms of the wills of deceased Indians;

• (c) authorize administrators to administer the property of Indians who die intestate;

• (d) carry out the terms of wills of deceased Indians and administer the property of Indians who die intestate; and

• (e) make or give any order, direction or finding that in his opinion it is necessary or desirable to make or give with respect to any matter referred to in section 42.

Marginal note:Courts may exercise jurisdiction with consent of Minister

• 44 (1) The court that would have jurisdiction if a deceased were not an Indian may, with the consent of the Minister, exercise, in accordance with this Act, the jurisdiction and authority conferred on the Minister by this Act in relation to testamentary matters and causes and any other powers, jurisdiction and authority ordinarily vested in that court.

• Marginal note:Minister may refer a matter to the court

  (2) The Minister may direct in any particular case that an application for the grant of probate of the will or letters of administration of a deceased shall be made to the court that would have jurisdiction if the deceased were not an Indian, and the Minister may refer to that court any question arising out of any will or the administration of any estate.

• Marginal note:Orders relating to lands

  (3) A court that is exercising any jurisdiction or authority under this section shall not without the consent in writing of the Minister enforce any order relating to real property on a reserve.

Wills

Marginal note:Indians may make wills

• 45 (1) Nothing in this Act shall be construed to prevent or prohibit an Indian from devising or bequeathing his property by will.

• Marginal note:Form of will

  (2) The Minister may accept as a will any written instrument signed by an Indian in which he indicates his wishes or intention with respect to the disposition of his property on his death.

• Marginal note:Probate

  (3) No will executed by an Indian is of any legal force or effect as a disposition of property until the Minister has approved the will or a court has granted probate thereof pursuant to this Act.

Marginal note:Minister may declare will void

• 46 (1) The Minister may declare the will of an Indian to be void in whole or in part if he is satisfied that

  • (a) the will was executed under duress or undue influence;

  • (b) the testator at the time of execution of the will lacked testamentary capacity;

  • (c) the terms of the will would impose hardship on persons for whom the testator had a responsibility to provide;

  • (d) the will purports to dispose of land in a reserve in a manner contrary to the interest of the band or contrary to this Act;

  • (e) the terms of the will are so vague, uncertain or capricious that proper administration and equitable distribution of the estate of the deceased would be difficult or impossible to carry out in accordance with this Act; or

  • (f) the terms of the will are against the public interest.

• Marginal note:Where will declared void

  (2) Where a will of an Indian is declared by the Minister or by a court to be wholly void, the person executing the will shall be deemed to have died intestate, and where the will is so declared to be void in part only, any bequest or devise affected thereby, unless a contrary intention appears in the will, shall be deemed to have lapsed.

Appeals

Marginal note:Appeal to Federal Court

47 A decision of the Minister made in the exercise of the jurisdiction or authority conferred on him by section 42, 43 or 46 may, within two months from the date thereof, be appealed by any person affected thereby to the Federal Court, if the amount in controversy in the appeal exceeds five hundred dollars or if the Minister consents to an appeal.