Canada, regional Obligatory referendum [LOR] - Indian Act: Sales - Meeting or referendum

General Typology

Instrument
Obligatory referendum [LOR]
Location
Canada
Political level
regional
Local Name:
Indian Act: Sales - Meeting or referendum
Normative Level:
statutory
Legally Binding:
yes
Legally Defined:

2 (1) In this Act,

band means a body of Indians
(a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951,
(b) for whose use and benefit in common, moneys are held by Her Majesty, or
(c) declared by the Governor in Council to be a band for the purposes of this Act; (bande)

(..)

elector means a person who
(a) is registered on a Band List,
(b) is of the full age of eighteen years, and
2 (c) is not disqualified from voting at band elections; (électeur)

(..)

Exercise of powers conferred on band or council
(3) Unless the context otherwise requires or this Act otherwise provides,
(a) a power conferred on a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the electors of the band; and
(b) a power conferred on the council of a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the councillors of the band present at a meeting of the council duly convened.

Application of Act
4 (1) A reference in this Act to an Indian does not include any person of the race of aborigines commonly referred to as Inuit.

1. Surrenders and Designations
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.

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.

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.

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.

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.

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.

References: Indian Act, R.S.C., 1985, c. I-5 (accessed Sept. 24, 2021)

Subject Matter:

To decide on land sales in all or parts of the reserve

Actors

Author:
Band
Initiator:
Law
Decision maker:
Electors of the band

Requirements

Available Time:
Turnout Quorum:
Approval Quorum:
Majority of the electors voting
Geographical Quorum:
Excluded Issues:
Other Formal Requirements:

Procedural Elements

Wording Of Ballot Question:
Interaction With Authorities:
Supervision And Support:
Transparency And Finance:

Practice

Archive:
Remarks: