Vol. 144, No. 4 — February 17, 2010

Registration

SOR/2010-28 February 4, 2010

INDIAN ACT

Order Exempting Bands from the Operation of Section 32 of the Indian Act

The Minister of Indian Affairs and Northern Development, pursuant to subsection 32(2) of the Indian Act (see footnote a), hereby makes the annexed Order Exempting Bands from the Operation of Section 32 of the Indian Act.

Ottawa, February 3, 2010

CHUCK STRAHL
Minister of Indian Affairs and Northern Development

ORDER EXEMPTING BANDS FROM THE OPERATION OF SECTION 32 OF THE INDIAN ACT

EXEMPTION

1. All bands and their members in Manitoba, Saskatchewan and Alberta are exempt from the operation of section 32 of the Indian Act.

COMING INTO FORCE

2. This Order comes into force on the day on which it is registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issue and objectives

Subsection 32(1) of the Indian Act states that “a transaction of any kind whereby a band or a member thereof purports to sell, barter, exchange, give or otherwise dispose of cattle or other animals, grain or hay, whether wild or cultivated, or root crops or plants or their product from a reserve in Manitoba, Saskatchewan or Alberta, to a person other than a member of that band, is void unless the superintendent approves the transaction in writing.” In addition, section 33 of the Indian Act provides that every person who enters into a transaction that is void under subsection 32(1) is guilty of an offence.

By this Order under subsection 32(2) of the Indian Act, Indian and Northern Affairs Canada wishes to exempt all bands and all band members in Manitoba, Saskatchewan, and Alberta from the operation of subsection 32(1) in order to eliminate an unnecessary legislative burden that has not been and is not being enforced, and which is a clear impediment to agriculture-related economic development.

This measure reduces the risk of a discrimination challenge against Canada being launched in accordance with the Canadian Charter of Rights and Freedoms and/or the Canadian Human Rights Act. Further, even though this provision is not being enforced, this exemption Order ensures that there are no residual impacts of subsection 32(1) that are affecting potential markets or investors related to agriculture and agri-food businesses on-reserve in the Prairie Provinces.

Description and rationale

This Order under subsection 32(2) of the Indian Act purports to exempt all bands and all band members in Manitoba, Saskatchewan, and Alberta from the operation of subsection 32(1) of the Indian Act, which restricts the sale or barter of agriculture-related products from a reserve in Prairie Provinces to a person other than a member of that band.

Had subsection 32(1) and section 33 of the Indian Act been enforced recently, the economic benefit for the First Nations and their members of making this exemption Order would have been much more significant. The Order would also have had the effect of greatly reducing the costs associated with the enforcement of section 32. However, given that there has been little, if any, enforcement of sections 32 and 33 in recent decades, this exemption Order is likely to have little to no economic impacts. In essence, this initiative maintains and confirms the status quo by removing an unnecessary and unenforced legislative burden which is also an impediment to agriculture-related economic development. For the same reasons, it also confirms the status quo with respect to costs or savings to government, industry, consumers, and others as a result.

Consultation

This exemption Order is generally viewed as a positive measure for the First Nations in the Prairie Provinces and it is unlikely to have any adverse impact on their Aboriginal or treaty rights. The prohibition on the disposal of produce from a reserve in the Prairie Provinces and the associated offence have not been enforced for decades.

While there were no requirements to perform consultations regarding this exemption Order, Indian and Northern Affairs Canada has sent letters to all Chiefs and Councils of the First Nations in the Prairie Provinces on September 1, 2009, and has pre-published the proposed Order on October 31, 2009, for a period of 30 days to inform the affected First Nations and the population in general about the intention of the Minister to sign the Order. The prepublication and the letter generated two responses communicated by telephone. Chief Allan Paul of Alexander First Nation in Alberta and Councillor Tim McCloud, the Agricultural portfolio councillor from Waywayseecappo First Nation in Manitoba, expressed their support for the Order to be signed as soon as possible.

Implementation, enforcement and service standards

Given that there has been little, if any, enforcement of sections 32 and 33 of the Indian Act in recent decades, there are no implementation, enforcement and service standard implications associated with this exemption Order.

Contact

Martin Egan
Director
Additions to Reserve and Lands Operational Policy
Lands Branch
Lands and Economic Development Sector
Indian and Northern Affairs Canada
Telephone: 819-953-3073
Fax: 819-994-1667
Email: Martin.Egan@inac-ainc.gc.ca

Footnote a
R.S., c. I-5

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