Ongoing beef tanked chance of employment

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PRO BONO

Dear Tuma:

I was wondering who owns the buildings that are built on cement foundations. My question is that in our community, a religious group constructed a house and now is no longer welcomed on the reserve. Can that group request payment if another band member wishes to lay claim on the building built on a foundation. Please advise.

Living in God's house

Dear Living:

Yes, the religious group has an "interest" in the property and can request payment should another band member take over the property. The payment should only reflect the value of the interest of the group, not the right to live on the property. Only the band council can give permission to live on the reserve and they can do this either formally or informally. This permission can extend to the erection of buildings that are not used for living purposes but for other purposes such as for religious services. These restrictions have made it difficult to sell, transfer or even to place a value on property on a reserve.

Dear Tuma:

I have an on-going beef with my band from the summer when my chief and council signed a Band Council Resolution giving one of the councilors permission to open a cigarette store on the reserve. Previous chief and council had said no because it was a conflict of interest. I said it was wrong and I received advice that said "Don't bite the hand that feeds you!"

Anyways, my sister went for a job and one of the people on the hiring committee asked how close was I to my sister because they thought that she would photocopy documents and pass them on. My sister was not hired. To me this sounds illegal.

Fighting for my sister

Dear Fighting:

I do not have enough information on why your sister was not hired. Did she meet all of the qualifications? Was she the best candidate for the position? Was there a valid concern regarding the loyalty and commitment to the potential employer? Did she have a personality conflict with other staff? Your sister needs to write a letter asking for feedback from the hiring committee as to why she was not hired.

An employer has the right to make hiring decisions based on a number of factors. Politics does play a part in hiring decisions despite promises of fairness in the hiring process. For example, the Liberals would not think of hiring a Conservative or an NDP member to work closely with the prime minister. If the position your sister was applying for was one that worked closely with the political leaders, then the employer has to assess whether they can "trust" the person or that the person will not become a political liability to them.

As for the cigarette store issue, does your band have a conflict of interest code? If so, you may have some recourse there and insist that the band council abide strictly by it. But be forewarned: your letter illustrates one of the problems of conflict of interest situations on reserves. Everyone is related and a very restrictive code might end up causing family fights.

Dear Tuma:

Recently, our band held their elections for chief and councillors. They have not yet been sworn in. If this new band council has not yet been officially sworn to office, is this still a legal body and can they hold referendum meetings to approve of the expenditure of band funds? In addition, one new councillor was elected and has already sat in on band council meetings. Does this also indicate that the former band councilor who lost his position would still, in effect, be a councillor, because no swearing in to office has been done yet? I would appreciate it if you could help me and other concerned band members understand the legalities and logistical aspects of all of this.

Left out in the dark

Dear Left out:

The term of office for a band council is normally two years (unless they are a custom band). The notice, nomination and the election occur within a short period before or at the end of the term. The Indian Act is unclear on whether the old council remais in office until the first meeting of the new council or whether the old council no longer exists after the election. To help us find the answer, let's look at the U.S. and Canadian systems.

In the U.S., the president is elected every four years in November but is not sworn in until January. The old president remains the president until January and can still make executive decisions. In Canada, the House of Commons is dissolved when the election call is made, but the prime minister is still the prime minister. The day after the election, the old prime minister is no longer the prime minister and the first job of the new one is to pay a visit to the governor general to present him or herself and arrange for a swearing in. The old cabinet no longer exists and cannot represent themselves as cabinet ministers until the swearing in of the new cabinet.

Under the Indian Act, the new chief and council have up to one month to have their first meeting. There is no mention of a swearing in, but it is understood that this will be done at this first meeting. The old council no longer exists and cannot represent itself as still being the chief or councillors until the swearing in. Usually, major decisions such as new expenditures or programs are put on hold during this period, but the band council staff that would now be accountable to the new council can still do everyday administrative decisions. Thus, it is important that the new council have a first meeting as quickly as possible after the election.

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 at: puoin@telus.net.