Social problems not solved by bylaws

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PRO BONO

Dear Tuma:

My question is about a possible band residency bylaw. As we know, lately in many First Nation communities there seems to be a steady influx of non-Natives taking up residency on our so-called Indian reserves.

If these non-Natives without band Indian status have no justifiable reason to be living in our community, can the band council adopt a bylaw that will let them reside there with certain conditions? I'd like this bylaw to deal with keeping the peace, selling drugs or bootlegging and marrying band members. The bylaw should have individuals reapply yearly to the band, and sign a binding contract that if they breach any of the conditions they will be banished? Do any of these suggestions violate the Canadian Human Rights Act?

Watered Down Indians

Dear Watered Down:

I'm not so sure that under your proposed residency bylaw, I would be able to live in your community. Your question, boiled down, is What powers does the band council have in determining residency in a First Nation? The other stuff is really your frustration with what is happening in your community.

The band council has the authority under section 81 of the Indian Act. This section states "The council of a band may make bylaws not inconsistent with the Act or with any regulation made by the Governor in Council or the Minister, for any or all of the following purposes..." The act specifically goes on in section 81 (p)(1) and identifies "the residence of band members and other persons on the reserve;" and (p)(2) "the rights of spouses and children who reside with members of the reserve..."

The band council can make a bylaw dealing with all of the items you wrote about, but remember, a bylaw is not law until the Minister of Indian Affairs approves of it. A bylaw dealing with all of your suggestions will probably not be approved by the minister, as it would be going above and beyond the authority of the band or is a violation of natural processes of law (i.e. violation of human rights). Even if the minister were to somehow approve of it, it still would be subject to challenges under the Canadian Human Rights Act or in the courts.

The last thing to remember is the impact of the Indian Act and Bill C-31 on our communities. Many folks who are not legally defined as "Indian" are often more "Indian" than those who are. There are only a few families that have not been touched by the loss of status and the right to live in their home communities. Thus, creating a residency bylaw to try to deal with social problems is not the answer.

Dear Tuma:

I am not sure if you can help me out but it's worth a try! Here are my questions:

1. What can we do as members to do get our elected chief and council out of council as per the Indian Act?

2. If we don't want non-Natives working for our First Nation, how can we get rid of them without them pursuing a lawsuit against the First Nation?

3. If confidential information comes into the memberships hands by way of accidentally being thrown into the garbage, for example, if this information is vital to the First Nation and can have an effect on the First Nation and the membership knows about it, do they have to give it back or can they present it at the next general meeting?

Revenge: A Dish Best Served Cold

Dear Revenge:

1. A person may be disqualified for serving on council if they have been convicted of an indictable offence, dies or resigns from office. The Minister of Indian Affairs can also disqualify someone from sitting on council if they are unfit for the office. Usually, by conviction of an offence, missing three consecutive meetings of council without authorization (rarely happens), or was found guilty of corruption of an election, taking a bribe, dishonesty (more than just telling little white lies) or using the office to do harm. Once a person has tendered his resignation, then that office becomes vacant and the band council does not have the power to reinstate that person.

2. The bandcouncil can get rid of anyone who works for them if they have just cause. If there is no just cause, the band council should prepare to be sued for wrongful dismissal. Being a non-Native or a non-band member is not just cause to fire someone.

3. Band councils should note that proper disposal of waste includes shredding of confidential documents and not just throwing them into the waste paper basket. If a band member comes across confidential documents, then the appropriate thing to do is to bring this to the band manager's attention and have him or her dispose of it properly.

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 Ph.D. in law at the University of British Columbia and questions can be sent to him at puoin@telus.net