Bands convery their intentions only with BCRs

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PRO BONO

Dear Tuma:

My common law girlfriend and I split up about six months ago. Towards the end of our relationship, we had some fights and the police attended. At that point, my girlfriend was charged with assault. I did not want that to happen so I wrote a letter to the Crown counsel and asked that they do not pursue the charges if she agreed to a peace bond. Later, we tried to reconcile, we got into an argument, and she called the police on me and had me charged with assault. I then agreed to a peace bond. To make my life worse, she then went to the chief and council of her band to request that they put a band council resolution in place to ban me from being on her reserve. She does not live on the reserve. I work for a neighboring reserve. Can chief and council pass a Band Council Resolution prohibiting me from being on their reserve? If so, how can they enforce this?

Should I Stay Or Should I Go?

Dear Should:

It is a good guess that your peace bond has a number of conditions attached to it. The standard conditions are, of course, to keep the peace, be of good behavior, report to the police at prearranged times, and usually other conditions are also included such as staying away from the other party, not be under the influence of drugs or alcohol, etc. etc. One of these conditions can be to stay away from a particular place, such as a building, area or reserve. The band council may have been asked for input in developing conditions for your peace bond and they thought it necessary for a band council resolution to convey their intentions.

In any case, the peace bond is usually for one year. After one year, it disappears, the conditions disappear and you will not be charged with assault. If you break the peace bond, you will go to court for assault. If you feel that you cannot avoid going to this particular reserve, go back to the authority that issued the peace bond (either the police or the court), explain your reasons and ask that that particular condition be removed or amended.

As for enforcement, a band council resolution cannot be enforced by anyone. It is a statement of the position of the band. Now, if it was a band by-law, that is different and that can be enforced by the police or by-law officer.

As for whether you should stay or go, she assaulted you, the reconciliation was not successful, you were in a fight with her and charged with assaulting her. There is a peace bond on you and now you are unable to go to her reserve. You should go.

Dear Tuma:

I was wondering if status Natives living off reserve could send in sales slips and get back the sales tax paid.

Paying Too Much Tax

Dear Paying:

No, the items have to be either purchased on reserve or delivered to the reserve in order for the sales tax to be exempt. I would think the only way to obtain a refund from the province is to provide proof that the items bought were actually bought or delivered on reserve. For this, you will need an actual delivery slip.

Dear Tuma:

I have been talking with unions about workplace safety and health, because it seems unions have been the main driving force behind changes in these areas. An interesting line of questions has emerged through our discussions.

Is the legislation being passed applicable on reserve? The other aspect is: if band council employees were part of a union, could a union go on reserve to support those workers and what legal aspects of that representation is valid?

Solidarity Forever

Dear Solidarity:

The first issue to look at is whether federal or provincial labor laws cover the employees. Band council employees are covered by the Canada Labour Code (federal) and under the code, every employee is free to join a union and to participate in it.

Once the employees have decided that they want a union and have joined one, they then can apply for certification by the Canada Labour Board. Once certified, the union can legally represent the employees in all aspectof labour relations, such as collective bargaining, working for increased protections for their members and dispute resolutions processes such as arbitration or mediations. If the employer does not wish to deal with the union or refuses to negotiate in good faith, then the union may order a strike to be carried out.

The history of unions' advocacy in Canada is very interesting. Unions' have often been at the forefront of changing labor laws in many areas, from workplace safety, health, pension benefits, job security, minimum wage, development of credit unions and employment equity. It will be interesting to see how the union movement develops in Indian Country.

Note to my readers: last month's column contained a letter regarding taxation of educational allowances. Several of you e-mailed me to tell me that CCRA (Revenue Canada) has recently sent out a circular advising that educational allowances are now being taxed. I have checked a number of sources and there does not seem to be a policy change at CCRA. Educational allowances are still considered property deemed to be on a reserve as per section 90 of the Indian Act.

Furthermore, in the case of Greyeyes v. The Queen, the court ruled that a scholarship received by an Indian under an agreement between a band and the federal government was situated on a reserve for the purposes of s. 90(1)(b) of the Indian Act. Under CCRA's tax exemption guidelines, the educational allowance from the tribal organization would be considered non-taxable as it is paid by a First Nations organization to a status person. As far as I can figure out, what may have changed is that CCRA now requires bands or school boards to issue a T4 or T4A slip for the educational allowance.

This column is not intended to provide legal advice but rather highlight situations where you should consult with a lawyer. Tuma Young is currently studying for a PhD in law at the University of British Columbia and questions can be sent to him via email a uoin@telus.net