NAMGIS FIRST NATION, also known as THE NIMPKISH INDIAN BAND (hereinafter the "Band")

Transcription

1 NAMGIS FIRST NATION, also known as THE NIMPKISH INDIAN BAND (hereinafter the "Band") A By-law governing the residence of Band members and other persons on the reserves which have been set apart for the use and benefit of the Band (hereinafter "the Reserves") and the health of residents of the Reserves BY-LAW NO o t WHEREAS the Council of the Band deems it advisable and in the best interests of the members of the Band to establish a by-law governing the residence of Band members and other persons on the Reserves and the health of residents of the Reserves; AND WHEREAS since time immemorial the Band has had a process whereby members of the Band may be banished from Residing within the aboriginal territory of the Band and, since the creation of the Reserves, from Residing on the Reserves, if those Band members have conducted themselves in a manner which is inconsistent with the best interests, health and well being of the Band and its members; AND WHEREAS the Band defines heal t Jr in the same terms as endorsed by the World Health Organization, that being as a state of complete physical, mental, emotional, spiritual and social well being and not merely the absence of disease or infirmity; AND WHEREAS the health conditions of the members of the Band cannot be significantly improved without the involvement of the Council of

2 the Band by enacting this By-law; 2 AND WHEREAS nothing in this By-law, including its being enacted in accordance with the provisions of the Indian A c t. R.S.C c. I- 6 and amendments thereto shall be interpreted in such manner as to alter, diminish, abrogate, or breach the aboriginal rights of the Band and its members; AND WHEREAS the Council of the Band is empowered to make by-laws for, inter alia, the following purposes: (a) to provide for the health of residents on the Reserves and to prevent the spreading of contagious and infectious disease ; (b) (c) (d) the observance of law and order; the prevention of disorderly conduct and nuisances; the removal and punishment of persons trespassing on the Reserves or frequenting the Reserves for prohibited purposes ; (e) (f) the residence of Band members and other persons on the s' Reserves ; the imposition on summary conviction of a fine not exceeding $1, or imprisonment for a term not exceeding thirty days or both for violation of this By- 1aw; and (g) with respect to any matter arising out of or ancillary to

3 3 the exercise of powers in relation to the foregoing, pursuant to paragraphs 81 (a), (c), (d), (p), (p.l), (q) and (r) of the Indian A c t, 1985 R.S.C. c. 1-6 and amendments thereto. NOW THEREFORE the Council of the Band enacts as a By-law thereof the following: 1. SHORT TITLE This By-law may be cited as the Residency and Health By- Law, INTERPRETATION In this By-law unless the content otherwise requires: (a) (b) (c) (d) (e) "Appeal" "Appellant" "Applicant" "Band" "Band Council Resolution" means an appeal to the Band membership pursuant to section 14 of this By-law; means any person or persons authorized under this By-law to appeal a decision of Council pursuant to sections 14 and 18 of this By-law; means a person who has submitted an application for permission to be a resident of the Reserves in accordance with section 5 of this By-law; means the Namgis First Nation, also known as the Nimpkish Indian Band; means a motion, as recorded in the minutes of the meeting, passed and approved at a duly convened meeting of the Council

4 4 pursuant to the consent of a majority of the Councillors of the Band present at the meeting; (f) "Band member", "Band members" or "Band membership" means that person or those persons included on the membership list kept by the Band as amended from time to t ime ; (g) "Chief" means the Chief of the Band as elected by the members of the Band pursuant to the custom of the Band; (h) "Child" means a person under the age of 18 years and includes a child born in or out of wedlock, a legally adopted child and a child adopted in accordance with the custom of the Band; "Committee" means the Residency and Health Committee appointed by Council pursuant to section 2 of this By-law; (j) "Council" means the Council of the Band as elected by the members of the Band pursuant to the custom of the Band and includes the Chief and any person or persons designated or delegated by Council to administer or carry out the provisions of this B y law; (k) "Her Majesty" /means Her Majesty the Queen in Right of Canada; (1) "Indian Act" means the Indian Act R.S.C c. 1-6 and amendments thereto; (m) (n) "Investigation Report" "Principal Residence" means a written report prepared by the Residency and Health Committee appointed by Council; means thje place at which a person resides on a more

5 5 (o) (p) (q) (r) (s) "Province" "Reserves" "Reside", "Resides", "Residing" "Resident" "Spouse" permanent basis than at any other place at which the person may reside from time to time; means the Province of British Columbia ; means those lands, the title to which is vested in Her Majesty, that have been set apart by Her Majesty for the use and benefit of the Band whether they be Reserve lands, designated lands or otherwise; means to live in a dwelling otherwise than as a visitor to the Reserves; means a person whose Principal Residence is on the Reserves and is entitled to reside on the Reserves pursuant to section 4 of this By-law; means a person who is married to, or has co-habited in a relationship of permanence and commitment, akin to a conjugal relationship, with a Band member for at least two years without interruption. 2. COMMITTEE (a) Pursuant to this By-law, a Health and Residency Committee r is hereby created whose members shall be appointed from time to time by the Council. There shall be not less than three and not more than five members of the Committee at any give time. (b) Members of the Committee may receive reasonable remuneration and shall be reimbursed for prescribed

6 6 expenses necessarily incurred while discharging their duties as members of the Committee. The remuneration and prescribed expenses shall be determined by Council. (c) A vacancy in the membership of the Committee shall not impair the power of the remaining members of the Committee to act. (d) The members of the Committee shall make decisions by either a show of hands or, alternatively, by secret ballot as may be determined by the members of the Committee. (e) The members of the Committee serve at the will of Council. 3. PURPOSE OF THE COMMITTEE (a) The Committee shall have the following duties: to hear applications for persons wishing to become Residents of the Reserves and make recommendations to Council respecting same; to make inquiries with respect to persons who are or may be endangering the health and well being of other Residents of the Reserves or other Band members and to make recommendations to Council concerning the continued residency of those persons; and (j.ii) to make recommendations to Council respecting

7 7 measures which may improve the health and well being of Residents of the Reserves or other Band members or prevent the deterioration of the health and well being of Residents of the Reserves or other Band members. 4. ENTITLEMENT TO RESIDE ON THE RESERVES (a) A person is entitled to Reside on the Reserves only if that person: has his or her Principal Residence on the Reserves at the time this By-law comes into force and only until he or she ceases to have a Principal Residence on the Reserves; is authorized to Reside on the Reserves pursuant to sections 18.1, 20, and 24 and subsections 28(2) and 58(3) of the Indian Act ; (iii) has the permission of Council pursuant to section 8 or 15 after Council has considered the recommendations of the Committee; and (iv) has not been disentitled to Reside on the Reserves by Council pursuant to section 12, 13 or 15. (b) A Spouse or dependent Child of a person who is entitled to Reside on the Reserves under subsection 4 (a), who actually Resides witl). that person at or after the time

8 8 the entitlement arises, is entitled to Reside on the Reserves until such time as the Spouse or dependent Child ceases to Reside on the Reserves, and such entitlement is independent of the entitlement of that person. (c) Notwithstanding subsection 4 (b), any Spouse or dependent Child who has been granted permission to Reside on the Reserves for a defined period is not entitled to Reside on the Reserves after the end of that defined period. 5. APPLICATION TO BE A RESIDENT (a) Any person may apply to the Committee for permission to be a Resident of the Reserves or to extend any defined period for which permission was previously granted to the person by the Council to be a Resident of the Reserves. (b) The application shall be filed with the Committee and shall include: the Applicant's reason for applying to be a Resident ; if the Applicant proposes to Reside on the s' Reserves for a limited time, duration of the proposed residence; the approximate (iii) the location at which the Applicant proposes to Reside ; (iv) the name of the Applicant's Spouse; (v) the names of any dependent Child of the

9 9 Applicant; and (vi) any additional information the Applicant wishes to provide. 6. COMMITTEE RECOMMENDATION (a) Within 90 days after the filing of a properly completed application, the Committee shall consider the application and within 14 days of considering the application, shall make a recommendation to Council. (b) the Committee shall recommend to Council whether: the Applicant should be allowed to Reside on the Reserves and, if so, whether there should be any conditions with respect to that residency; whether the Applicant should not be entitled to Reside on the Reserves and, if so, the reasons for same; (iii) that the Applicant may be entitled to Reside on the Reserves for a limited period of time and the reasons for same. (a) Within 60 days after receiving the recommendations of the Committee respecting the Applicant, Council shall hold a hearing with respect to the recommendations of the

10 10 Committee. (b) At least 14 days prior to the hearing, the Manager of the Band or such other person as may be appointed by Council shall : give written notice to the Applicant of the date, time and place of the hearing and inform the Applicant that he or she has a right to appear,at the hearing and be heard in support of the application; and post in the Band office a copy of the notice. (c) At the hearing, the Council shall: provide the Applicant with an opportunity to present evidence and to make oral and written submissions, or both, in support of the application; and provide any Resident or other Band member present at the hearing with an opportunity to be heard. (d) The Council may make rules of procedure governing the hearing of applications and shall keep records of its proceedings. 8. DECISION (a) After it has heard all of the evidence and submissions, the Council shall meet in private to consider the application. j

11 11 (b) In determining whether an application for permission to be a Resident of the Reserves shall be granted, the Council may take into consideration the following: whether the Applicant has arranged for a place to Reside on the Reserves; whether the Applicant's residence on the Reserves would be compatible with the culture, society, and community of the Band and the welfare of the Band members Residing on the Reserves; (iii) (iv) whether the Applicant is of good moral character; the extent to which the Applicant is prepared to commit his or her personal and economic resources to the welfare and advancement of the community of Band members Residing on the Reserves; (v) the availability on the Reserves of adequate housing, lands and services; (vi) whether the Applicant is or will be employed on or off the Reserves; and (c) (vii) Within such other considerations as Council may deem relevant. s 14 days after the hearing, the Council shall dispose of the application by granting the Applicant permission to be a Resident of the Reserves for an indefinite period until such time as the Applicant ceases to Reside on the Reserves;

12 12 granting the Applicant permission to be a Resident of the Reserves for a defined period; (iii) extending any defined period for which permission was previously granted to the person by the Council to be a Resident of the Reserves; or (iv) refusing the application; and shall given written notice of its decision to the Applicant incorporating reasons in support of its decision. (d) Within 7 days after disposing of the application, the Council shall post a notice of its decision in the Band office. (e) Any Applicant whose application is refused or is granted for a defined period of time may appeal and request that the matter be put to the Band membership pursuant to section 14. Should an Appeal not be brought within the time allotted Council's decision shall be final. 9. REAPPLICATION Where an application made under section 5 is refused by Council pursuant to the provisions of section 8, the Council is not required to consider any further application by that person for a period of one year from the date of the refusal, unless the Applicant can show that there has been a material chjange in circumstances.

13 INVESTIGATION (a) Where a person Residing on the Reserves makes an allegation in writing to the Committee alleging that another person or persons Residing on the Reserves is or are adversely affecting the health and well being of a person or persons Residing on the Reserves or of other Band members or the community, or is acting in a manner inconsistent with the best interests of the Band and the Band membership, the Committee shall investigate the allegation. (b) In undertaking its investigation, the Committee may interview witnesses and review any and all documentation as may be required. (c) The investigation by the Committee shall include a discussion of the allegations with the person or persons against whom the allegations have been made unless that person or persons refuses to cooperate in the investigation or discuss the allegations, in which case this shall be noted in the Investigation Report to be presented to Council pursuant to section 11. s' 11. INVESTIGATION REPORT (a) Within 90 days of the allegation being made, the Committee shall provide a written Investigation Report to Council.

14 14 (b) The Investigation Report shall detail the findings of the Committee and the Committee may make recommendations with respect to the person or persons against whom the allegations have been made. Should the Committee make such recommendations, they will not be binding upon Council. 12. COUNCIL HEARING RESPECTING HEALTH AND WELL-BEING AND THE BEST INTERESTS OF THE BAND AND THE BAND MEMBERS (a) Where an allegation in writing has been made to the Committee pursuant to section 10, and the Committee has presented Council with an Investigation Report pursuant to section 11, the Council shall, within 60 days of receipt of the Investigation Report, hold a hearing into the matter unless the Committee finds the allegations to be unfounded and that no action be taken, in which case the Council may, in its discretion, decide that a hearing need not be held. (b) At least 14 days prior to the hearing, the Manager of the Band or such person as may be designated by the Council shall: ^ give written notice to the person or persons against whom the allegations have been made as to the date, time, and place of the hearing and informing that person or those persons that he, she, or they has or have the right to appear at the hearing and to be heard; and

15 15 post in the Band office a copy of the notice. (c) At the hearing, the Council shall: provide each person or persons against whom the allegations have been made with an opportunity to present evidence and make oral and written submissions; permit the person or persons against whom the allegations have been made to have legal counsel present at the hearing; (iii) provide any other Resident of the Reserves or other Band member with an opportunity to be heard. (d) The Council may make rules of procedure governing hearings under this section and shall keep records of its proceedings. (e) After it has heard all of the evidence and submissions, the Council shall meet in private to consider the Investigation Report, the submissions, and any documentary or other evidence as it deems appropriate. (f) In reviewing the evidence and the submissions, Council may, but is not limited to, take into consideration: whether the person or persons have a place in which to reside on the Reserve ; whether the continued residence on the Reserves of the person or persons would be compatible with the culture, society, community, and welfare of

16 16 the Band; (iii) whether the person or persons are of good moral character; (iv) whether the person or persons have been convicted of an offense pursuant to the Criminal Code of Canada, the Narcotic Control Act. R.S.C. c. N.-l. the Food and Drucrs Act. R.S.C c and amendments thereto, or any other Act or regulation of Her Majesty or the Province; (v) the extent to which the person or persons is or are prepared to commit his or her personal and economic resources to the welfare and advancement of the community of Band members Residing on the Reserves; and (vi) such other considerations as Council may deem relevant. (g) Within 14 days after the hearing, the Council shall render its decision in writing to the person or persons against whom the allegations have been made. In its decision, the Council may: s' Find that the person or persons against whom the allegations have been made is or are conducting activities which adversely affect the health and well-being of other Residents of the Reserves, other Band members, or the community, or are acting in a manner which is inconsistent with the

17 17 best interests of the Band and the Band members, and m a y : a. find that that person or those persons, if he or she is a Band member or they are Band members, have conducted themselves in a manner which is inconsistent with the best interests and health and well-being of the Band and its members or against the best interests of the Band and the Band members and order that the person or persons, if he or she is a Band member or they are Band members, have his or her privilege to reside on any or all Reserves revoked pursuant to this By-law, b. find that those person or persons, if they are a Band Member or Members, have conducted themselves in a manner which is inconsistent with the best interests and health and wellbeing of the Band and its members or against the best interests of the Band and the Band members and order that he, she, or they have i^ - this privilege to reside within the aboriginal territory of the Band revoked, c. find that the person or persons has or have conducted himself, herself, or themselves in a manner which is inconsistent with the best interests and the health and well-beir g of the

18 18 Band and the Band members and order that he, she, or they no longer be entitled to Reside on any or all the Reserves of the Band and that privilege be revoked, d. find that the person or persons has or have conducted himself, herself or themselves in a manner which is inconsistent with the best interests and the health and well-being of the Band and its members and allow that person or those persons to continue to Reside on the Reserves under certain stipulated conditions; find that the person or persons has not or have not conducted himself, herself or themselves in a manner which is inconsistent with the best interests and the health and well-being of the Band and its members. (h) Within 7 days after the Council's decision, the Council shall post a notice of its decision in the Band office and specify the reasons for its decision. Council shall not make the Orders set forth in subparagraphs 12(g) a, b, and c if the person or persons is or are a Band Member or members is or are a Resident of the Reserves and is, at the time of the hearing, under the age of sixteen years. (j) The revocation of a Resident's entitlement to Reside on I the Reserves pursuant to orders of Council made under

19 19 subparagraphs 12(g)a, b, and c shall not affect the entitlement of a Spouse or Child of that Resident to continue to Reside on the Reserves. (k) A Resident whose entitlement to Reside on any or all of the Reserves has been revoked by Council under subparagraphs 12(g) a., b., c., and d. may appeal the decision of Council and request that the matter be put to the Band membership pursuant to section 14. Should an Appeal not be brought within the time allotted, Council's decision and order shall be final, subject to section 18 herein. 13. BREACH OF CONDITIONS (a) Should Council make an order pursuant to subparagraph 12(g) d and the person or persons against whom the order has been made breach the conditions, Council may hold a further hearing within 90 days of it being informed that the person or persons have breached the conditions. (b) At least 14 days prior to the hearing, the Manager of the Band or such other person as may be designated by the Council shall: give written notice to each person or persons against whom the allegations have been made that ijt is alleged that there has been a breach of the

20 20 conditions, advising that person or persons as to the date, time and place of the hearing, and informing that person or persons that he or she or they has or have the right to appear at the hearing and to be heard; and post in the Band office a copy of the Notice. (c) At the hearing the Council shall: provide each person or persons against whom the allegations have been made with an opportunity to present evidence and to make oral and written submissions or both; have legal counsel be present to act on his, her or their behalf; (iii) provide any Resident or other Band member present at the hearing with an opportunity to be heard. (d) The Council may make rules of procedure governing hearings under this section and shall keep records of its proceedings. (e) After it has heard all of the evidence and submissions, the Council shall meet in private to consider the r allegations. (f) In reviewing the evidence and the submissions, Council may take into consideration but is not limited to: whether the person or persons have a place in which to reside on the Reserve; whether the continued residence on the Reserves

21 21 of the person or persons would be compatible with the culture, society, community, and welfare of the Band; (iii) whether the person or persons are of good moral character; (iv) whether the person or persons have been convicted of an offense pursuant to the Criminal Code of Canada, the Narcotic Control Act, R.S.C. c. N.-l. the Food and Drucrs Act, R.S.C c. F-27. and amendments thereto, or any other Act or regulation of Her Majesty or the Province; (v) the extent to which the person or persons is or are prepared to commit his or her personal and economic resources to the welfare and advancement of the community of Band members Residing on the Reserves; and (vi) such other considerations as Council may deem relevant. (g) Within 14 days after the hearing, the Council shall render its decision in writing to the person or persons against whom the allegations have been made and may find that that person or those persons, if he or she is a Band member or they are Band members, have conducted themselves in a manner which is inconsistent with the best interests and health and well-being of the Band and its members or

22 22 against the best interests of the Band and the Band members and order that the person or persons, if he or she is a Band member or they are Band members, have his or her ability to reside on any or all Reserves revoked pursuant to this By-law, find that those person or persons, if they are a Band Member or Members, have conducted themselves in a manner which is inconsistent with the best interests and health and well-being of the Band and its members or against the best interests of the Band and the Band members and order that he, she, or they have this privilege to reside within the aboriginal territory of the Band revoked. (iii) find that the person or persons has or have conducted himself, herself, or themselves in a manner which is inconsistent with the best interests and the health and well-being of the Band and the Band members and order that he, she, or they no longer be entitled to Reside on any or all the Reserves of the Band and that privilege be revoked, (iv) impose further conditions in order for the person or persons to be allowed to remain on any or all of the Reserves, or in the case of Band members within th/e traditional aboriginal territory of

23 23 the Band, (v) find that the person or persons have not breached the conditions set forth by Council in its order pursuant to subparagraph 12(g)d. (h) Within 7 days after the Council's decision, the Council shall post a notice of the decision in the Band office and give reasons for its decision. 14. APPEALS (a) Within 30 days after the posting of a notice pursuant to subsections 8(d) and 12(h) evidencing the Council's decisions in the Band office, the Applicant in the case of section 8 or the affected Resident in the case of section 12 may appeal the Council's decision and request that the matter be put to the Band membership by filing a written request with the Council. (b) The notice of appeal will briefly set forth the grounds for the appeal and which resolutions or orders of Council are being appealed. (c) Services of notices of appeal shall be made in the following manner: if pursuant to subsection 8 herein, personally upon any two of the following persons: a. the Chief, b. a member of Council, c. the Band Manager; j

24 24 (ü) if pursuant to subsection 12 herein, personally upon any two members of Council; (d) Within 90 days after the filing of the appeal, a general Band membership meeting shall be held in order to consider the appeal. (e) At least 14 days prior to the hearing of the Appeal, the Manager of the Band or such other person as may be designated by Council shall: give written notice to the Appellant of the date, time and place of the general Band membership meeting and shall inform the Appellant that he or she has the right to appear and make oral or written submissions at the hearing in support of the appeal; notify the Band members in a manner consistent with the policies and by-laws of the Band of a general Band membership meeting to be held to hear the appeal; (iii) post at the Band office a copy of the appeal and notice of the general Band membership meeting; (iv) At the general Band membership meeting, the Council shall : a. provide the Appellant with an opportunity to present evidence and to make oral or written submissions or both in support of the appeal; b. permit legal counsel on behalf of the

25 25 Appellant to be present and make submissions; and c. provide any Resident or other Band member present at the hearing with the opportunity to be heard; (v) After the Band members who attend the general Band membership meeting have heard all of the evidence and submissions, a vote shall be held at which time the Band members who attend the general Band membership meeting may a. ratify the decision of Council, b. recommend that Council's decision be altered or amended, or c. recommend that Council's decision and order be rejected. 15. FINAL DECISION Within 14 days after the general Band membership meeting, Council shall make a final decision in relation to the Appeal s' of the Applicant pursuant to subsection 8 (e) or the Appeal of the Resident pursuant to subsection 1 2 (k). An Appellant retains the right of appeal pursuant to section 18 herein. i

26 ENFORCEMENT (a) A peace officer may order any person who is Residing on the Reserves who is not a Resident, or is no longer entitled to Reside on the Reserves pursuant to the decision or order of Council under this By-law, to cease to Reside on the Reserves. (b) Where a person or person who has or have been ordered under subsection (a) to cease to Reside on the Reserves fails or refuses to do so within 60 days after a decision or order of Council has been made under section 8, 12 or 15, a peace officer may issue a further order prohibiting the person or persons from being on the Reserves or re entering the Reserves. (c) Any person who fails or refuses to comply with an order made under subsection 16(b) commits an offence. (d) Every person who assists a person who has been ordered to cease to Reside on the Reserves to continue to Reside on the Reserves commits an offence. 17. PENALTY Any person who contravenes any provisions of this By-law commits an offence and is liable on summary conviction to a fine not exceeding $1, or to imprisonment for a term not exceeding thirty days or both.!

27 18. APPEAL 27 Any person who may be affected by this By-law has the right of appeal to the Federal Court of Canada, Trial Division, or any other Court of competent jurisdiction within 30 days of the rendering of the Order or the posting of same, whichever is the later. 19. SEVERABILITY Should any portion of this By-law be found to be invalid by a Court of competent jurisdiction, it shall not affect the balance of the By-law. 20. BAND COUNCIL RESOLUTION All resolutions, decisions or orders made by Council pursuant to this By-law shall be evidenced by a Band Council Resolution executed by a quorum of Council voting in favour of the resolutions, decisions or orders made.

28 28 BE IT KNOWN that this by-law entitled "Residency and Health By-Law, 1995" is hereby enacted as By-Law no o/ by the Chief and Council of the Namgis First Nation, also known as the WITNESS COUNCILLOR WITNESS COUNCILLOR WITNESS ; COUNCILLOR BANDAD\7145\BYLAW.3