Designation and Surrender: Interim Bulletin for Chapter 5, Land Management Manual

1. Purpose

This interim bulletin is to be read in conjunction with Chapter 5 of the Land Management Manual ("Chapter 5"). It provides information on the legislative and regulatory amendments to the Indian Act and the Indian Referendum Regulations. It also outlines the procedural changes that have resulted from the amendments.

In line with the legislative amendments in the Jobs and Growth Act, 2012, there are two key changes to the designation process to increase efficiencies, namely:

• The voting threshold is a simple majority, thus eliminating the need for a second vote; and
• The Minister has the authority to accept the designation, rather than seek Governor in Council concurrence.

These amendments apply only to designations, not to surrenders.

2. Summary of the Amendments

1. The Jobs and Growth Act, 2012 S.C. 2012, c. 31 amended sections 37, 39 and 40 of the Indian Act and created new sections 39.1 and 40.1.
2. Sections 39 and 40 of the Indian Act now apply only to absolute surrenders of reserve lands.
3. Sections 39.1 and 40.1 of the Indian Act apply only to designations of reserve lands.
4. Section 1.1 and subsection 3(1) of the Indian Referendum Regulations (the "Regulations") were amended to provide that the Regulations apply to referenda held under both sections 39 and 39.1 of the Indian Act and that the Minister may order a referendum to be held.

Section 23 of the Regulations was amended to reflect that the Minister is the authority in considering the information submitted in a review of a referendum conducted under section 39.1 of the Indian Act.

3. The Effects of the Amendments

1. Absolute surrenders:
   There are no changes to the surrender authorities, policies and processes set out in Chapter 5. While section 39 of the Indian Act provides the options of conducting a vote by way of a general or special meeting, AANDC policy remains that absolute surrender votes be held in accordance with the Regulations. References in Chapter 5 to second referenda are to be read as being with respect to referenda for absolute surrenders.
2. Designations:
   As set out in section 39.1of the Indian Act, for a designation to be valid, it must be:
   
   • made to Her Majesty;
   • voted on at a referendum held in accordance with the regulations;
   • assented to by a simple majority of electors of the band;
   • recommended to the Minister by the band council; and
   • accepted by the Minister.

With respect to designations, references in Chapter 5 to sections 39 and 40 of the Indian Act are to be read as sections 39.1 and 40.1. References to designations are to be read as including the amendment or revocation of designations, either those in existence prior to the amendments or those accepted by the Minister after the amendments. At this time, there are no changes to the designation policies set out in Chapter 5. There are limited process changes to reflect the new validity requirements for designations, including the need for a Band Council Resolution recommending the Minister accept the designation. This additional requirement is intended to provide Chief and Council with a means to assess whether the participation rate of the vote reflects the views of the community.

4. Changes to Chapter 5 of the Land Management Manual:

1. Directive 5-1: General Information
   1. Paragraph 3.7 is amended to read:
      
      Sections 40 and 40.1 of the Indian Act require the Department and the First Nation to certify the surrender or designation and submit the surrender to the Governor in Council and the designation to the Minister.
   2. The following new paragraphs 3.9 and 3.10 are added:
      1. 3.9 Section 39.1 of the Indian Act sets out the validity requirements for a designation. It must be:
         • made to Her Majesty;
         • voted on at a referendum held in accordance with the Referendum Regulations;
         • assented to by a majority of electors of the First Nation;
         • recommended to the Minister by the First Nation Council; and
         • accepted by the Minister.
      2. 3.10 The First Nation council provides its recommendation by way of a Band Council Resolution. Suggested wording has been developed and is available through the AANDC's Designation Regional Support Centre. The Minister accepts the designation by way of a Ministerial Order.
   3. Paragraph 6.1, Authorities is replaced by:
      
      6.1 Departmental policy for absolute surrenders and designations requiring Governor in Council or Ministerial approval is governed by sections 37 to 41 of the Indian Act.
      
      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.
      
      (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.
      
      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. (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.
      
      39. (1) An absolute surrender is void unless
      
      
      1. it is made to Her Majesty;
      2. it is assented to by a majority of the electors of the band
         1.  at a general meeting of the band called by the council of the band,
         2.  at a special meeting of the band called by the Minister for the purpose of considering a proposed absolute surrender, or
         3.  by a referendum as provided in the regulations; and
      3.  it is accepted by the Governor in Council.
      (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.
      
      (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.
      
      (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.
      
      (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.
      
      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.
      
      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.
      
      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.
      
      (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.
      
      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.
   4. Paragraph 6.2 Authorities is amended by including the following as a second paragraph, prior to the text of the legislation:
      
      Note that, for pre-reserve designations for Treaty Land Entitlement First Nations, the claim settlements implementation legislation has not been amended. References in subsection 12(2) of the Manitoba Claim Settlement Implementation Act and subsection 6(2) of the Claim Settlements (Alberta and Saskatchewan) Implementation act to sections 39 and 40 of the Indian Act are to be read as references to sections 39.1 and 40.1 of the Indian Act.
2. Directive 5-4: How to Surrender or Designate Reserve Lands by Referendum
   1. Paragraph 3.1 Authorities, is amended to read:
      3.1 Relevant statutory authorities include the Indian Act, R.S.C. 1985, c. I-5, sections 39, 39.1, 40 and 40.1 (reproduced in Directive 5-1 of this Manual) and the Indian Referendum Regulations.
   2. Paragraph 12.4 Policy – Voting majority is amended to read:
      12.4 (a) At a first referendum for an absolute surrender, valid First Nation consent requires a "majority of a majority" vote in favour of the proposal.
      12.4 (b) At a referendum for a designation, valid First Nation consent requires a simple majority vote in favour of the proposal.
   3. Paragraph 14 Policy – Documentation is amended to include a new 14.5 (s) as required documentation:
      14.5 (s) a Band Council Resolution recommending that the Minister accept the designation. In the event Council determines not to recommend that the Minister accept the designation, written evidence from the First Nation is required.
3. Directive 5-5: How to Terminate or Amend a Designation
   1. For designations, references to acceptance or approval by the Governor in Council are to be read as acceptance by the Minister of Indian Affairs and Northern Development.
   2. The current Paragraph 2.3 is deleted and the following is to be substituted:
      2.3 While the Indian Act is silent on the revocation or amendment of designations:
      • the Minister's acceptance of a designation constitutes a regulation within the meaning of the Interpretation Act; therefore, the Minister may also accept amendments and revocations of designations;
      • to revoke or amend a designation, the First Nation must hold a referendum in accordance with the ReferendumRegulations;
      • the acceptance of a revocation or amendment of designation must be recommended by the First Nation council to the Minister by way of a Band Council Resolution.
   3. Subparagraph 2.4 is replaced by the following:
      
      2.4 The revocation or amendment of a designation that had previously been accepted by the Governor in Council, other than a termination by operation of law (i.e. expired), must be submitted to the Minister for acceptance.
   4. Paragraph 3, Authorities is amended to include reference to section 39.1 of the Indian Act and subsection 44 (g) of the Interpretation Act: Subparagraph 3.1 is replaced by the following:
      
      3.1 Relevant authorities include:
      
      Indian Act, R.S.C. 1985, c. I-5, subsection 39(1) and section 39.1 (reproduced in Directive 5-1 of this Manual); and
      
      Interpretation Act, R.S.C. 1985, c.I-21, subsections 31(4) and 44(g):
      
      31 (4) Where a power is conferred to make regulations, the power shall be construed as including a power, exercisable in the same manner and subject to the same consent and conditions, if any, to repeal, amend or vary the regulations and make others.
      
      44. Where an enactment, in this section called the "former enactment", is repealed and another enactment, in this section called the "new enactment", is substituted therefor,
      
      (g) all regulations made under the repealed enactment remain in force and are deemed to have been made under the new enactment, in so far as they are not inconsistent with the new enactment, until they are repealed or others made in their stead;