CHAPEL ISLAND FIRST NATION BY- LAW NO. 2007-1 Being a By-Law respecting the Regulation and Administration of the construction, ownership, allocation, use, maintenance and repair of buildings and the use of land on the Chapel Island First Nation Reserve WHEREAS paragraphs 81 (l)(c), (d), (g),(h), (p.2) and (q) of the Indian Act, R.S.C. 1985, c. 1-5 as amended, empower the council of a band to make by-laws to provide for the observance of law and order; the prevention of disorderly conduct and nuisances; the division of the reserve or a portion thereof into zones and the prohibition of the construction or maintenance of any class of buildings or the carrying on of any class of business, trade or calling in any such zone; the regulation of the construction, repair and use of buildings, whether owned by the band or by individual members of the band; the rights of spouses or common-law partners and children with respect to any matters included in this by-law; with respect to any matter arising out of or ancillary to the exercise of these powers; and the imposition of a penalty for the violation thereof, AND WHEREAS the Council of the Chapel Island First Nation has determined that it is desirable and necessary for the protection of the people and property located on Chapel Island First Nation Reserve lands to establish a by-law to regulate and to govern the administration of activities related to housing; the construction, repair and the use of buildings; and the use of land on the Chapel Island Reserve. NOW THEREFORE, the Council o f the Chapel Island First Nation at a duly convened meeting of a quorum of the Council, without prejudice to but in express affirmation of its right of self-government, hereby enacts the following by-law: TITLE 1. This by-law may be called the Chapel Island First Nation Housing and Development By-law. DEFINITIONS 2. In this by-law, “Band house” means a housing unit owned by the First Nation and located on the Reserve, including a single family dwelling or a unit in a multiple dwelling complex and any housing unit located on the Reserve for which the First Nation has provided a ministerial guarantee for repayment of a mortgage loan; Chapel Island First Nation” means the Chapel Island Band; “Council” means the Chief and Council of the Chapel Island First Nation; “Development” means any erection, construction, alteration, replacement, or relocation of or addition to any structure and any change or alteration in the use of land or a structure; “First Nation” means the Chapel Island First Nation; “Housing Allocation Priority List” means the Chapel Island First Nation Housing Allocation Priority List established by the Chief and Council of the Chapel Island First Nation pursuant to this by-law;
“Housing Department” means the Chapel Island Housing and Public Works Department which shall administer such provisions of this by-law as may be assigned to it by the provisions of this by-law and shall provide advice to the Council with respect to the management and administration of any housing activities on the Reserve; “member” means a registered member o f the Chapel Island First Nation; “occupant” means a person or persons who has entered into an occupancy agreement whether oral, written or implied with the Council; and, Reserve”, for the purposes o f this by-law, means all Chapel Island Reserve lands. APPLICATION 3. This by-law applies to: (a) all Chapel Island Reserve lands; (b) all existing and future Band houses on the Reserve; (c) any class of buildings and all building construction activities on the Reserve; (d) all activities and programs with respect to housing including allocation, construction, renovation, repair and maintenance; (e) all occupants o f a Band house and all individuals who own, rent or have been allocated a housing unit on the Reserve; and, (f) all individuals who have made or will make application for housing on the Reserve. 5. The Council or its designate shall be responsible for the application o f this by-law. 6. Only members may make application for housing or for repairs, renovations or maintenance of housing under this by-law. 7. In the event of delays in membership registration processing, the Council may treat persons with memberships in progress as being current members. The facts o f the particular situation must be verified by the membership officer. ACCOUNTABILITY 8. The Council is accountable to the members for decisions made with respect to housing programs or activities under this by-law. 9. The Council shall make copies of this by-law available to members upon request. 10. The Council shall make available an annual report each year which summarizes the activities of the Housing Department. OWNERSHIP 11. The First Nation collectively, on behalf of all members, owns all o f the lands within the Reserve. This means that any land within the Reserve on which a Band house may be located remains the property of the First Nation, with the exception of any land for which a Certificate of Possession has been issued. Certificate o f Possession lands are held by individual members of the First Nation with individual rights of possession. 12. All houses located on lands which are subject to a Certificate o f Possession are the sole responsibility of the holder of the Certificate of Possession.
13. A non-CMHC house shall be considered privately owned when an individual: (a) contributes significant financial resources towards the completion of a house, in excess of any First Nation contribution; (b) applies to the Council for their approval of the issuance of a Certificate o f Possession for the land; (c) receives the approval of the Council for the issuance of a Certificate o f Possession for the land; and, (d) receives a Certificate of Possession for the land from the Minister. 14. All individuals who have been allocated a Band house shall be required to execute a Chapel Island First Nation Band House Occupancy Agreement (hereinafter referred to as the “occupancy agreement”) with the First Nation as owner and the individual as occupant, in the form approved by the Council, prior to occupying the Band house. 15. All occupants shall be subject to the terms and conditions o f the occupancy agreement. 16. First Nation members who are allocated a Band house and a lot become occupants only and are provided with the rights of residency and usage pursuant to the terms and conditions of the occupancy agreement. The member does not acquire any ownership rights when they are allocated a Band house. 17. An occupant cannot transfer their interest in their allocated Band house or any part thereof, unless they make an application in writing to the Council and obtain the written consent to the transfer from the Council at a duly convened meeting. 18. Any change of possession or occupancy of a Band house must be approved by the Council, at a duly convened meeting of the Council and all individuals who are seeking a Band house are required to submit an application for housing in the proper form 19. Any individual constructing, purchasing, or being given a privately owned house shall be provided with a copy of this by-law by the Chief and Council as there are sections in this by-law which apply to privately owned houses. 20. Any improvements made to a Band house where the occupant has been reimbursed at cost for the improvements, as well as any fixtures added to a Band house by the occupant become the property of the First Nation as owner and may not be removed from the Band house if the occupant vacates the home. 21. The Council reserves the right to act as the “general developer" of the First Nation reserve lands. In this capacity, the Council may, from time to time, initiate alternative financing programs which may provide for options in the building and allocation of Band houses. ORGANIZATION AND STRUCTURE 22. The Housing Department shall be responsible for the administration of the Chapel Island First Nation housing program. 23. The Manager of the Housing Department shall manage the day to day operations o f the Housing Department including the supervision and management of any staff employed by the First Nation for the purposes o f the housing program. 24. The Manager of the Housing Department shall make regular reports including quarterly reports and an annual report by June lo f each year, as well as such other reports as may be requested by the Council.
25. Prior to the commencement of any work related to housing activities on the reserve, the person proposing to do the work, including contractors or sub-contractors, must be approved by the Council based upon the recommendations of the Manager of the Housing Department. 26. The Council shall ensure that adequate records are kept with respect to all aspects of the housing program including applications for housing, Council resolutions, financial records and all records relating to the construction, occupancy, renovations, repairs, and maintenance of housing on the Reserve. DEVELOPMENT 27. No development shall hereafter be undertaken on the Reserve by any person other than the Council, unless a Development Permit has been approved by the Council and issued by the Manager of the Housing Department. No Development Permit shall be issued unless all o f the provisions o f this by-law are satisfied. 28. No person shall clear any part of the Reserve of natural bush, small trees or shrubs without the approval of the Council. SITING OF HOUSING 29. The Council shall develop a community plan that provides a general framework for the allocation and siting o f new housing construction on the Reserve. 30. The siting preference o f the intended occupant will be taken into account whenever possible within the general framework. 31. All new houses on the Reserve shall be built on a site where water, sewer and electrical services are available at the lot line or, at the discretion of the Council, within a reasonable distance from existing water, sewer and electrical services. 32. In the event that a member wishes to build on a site where water, sewer and electrical services are not already available at the lot line and the construction of the house is approved by the Council, the member shall be responsible for any extra costs associated with building their house on that site. SERVICES AND UTILITIES 33. Each newly constructed Band house shall be fully serviced and offer the necessary water, sewerage, heating and electrical services. 34. All services installed shall meet safety requirements as described herein. 35. The regular monthly charges for heating, telephone, cable, electrical and internet services are the responsibility o f the occupant. 36. Chapel Island First Nation shall pay any charges for necessary repairs to service and utility systems, which are under the ownership and control of the First Nation. The Chapel Island First Nation will not pay for any repairs that arise due to the occupant’s negligence, willful damage, or public mischief. In these types o f situations, the occupant shall be responsible for these repairs. Occupants could also be subject to charges under the Criminal Code. 37. Occupants shall be responsible for providing and maintaining landscaping and fencing and ensuring that their yard is safe, clean and free of any hazardous material such as hazardous wastes or inoperable motor vehicles.
HOUSING ALLOCATION 38. In order to properly and fairly administer the housing program which is based on funding received from the federal government, the Chief and Council shall ensure the establishment of housing priorities and waiting lists in accordance with the following criteria, (a) Band houses shall only be allocated to members except for the circumstances listed below in section 39; (b) any member who wishes to occupy a Band house must fill out an application on a form approved by the Council and the Housing Department; (c) the housing application must be updated by the applicant annually or when circumstances change in order to ensure that the Council has the most recent information available. (d) a member cannot be listed on more than one outstanding housing application at the same time. (e) if a member falsifies information on their housing application, the Council shall remove that person from the priority list for a period of time to be determined by the Council. (f) the following factors shall be considered, in no particular order, when placing applicants on a preliminary housing priority list. However, all o f the factors shall be considered when reviewing housing applications: (i) Number of children under 18 years of age (ii) Total number of individuals in family (including extended family members who will reside in the same house) (iii) Number of years living on reserve (iv) Number of years on waiting list (v) Condition of current residence (vi) Disability o f family members (vii) Number of elders in family (viii) Overcrowding of current residence (ix) Does applicant live off-reserve (x) Health and safety issues (g) the Council shall approve a housing priority list o f applicants based on the following criteria in no particular order. However, priority shall be given to members that may fall under the following criteria: disabled individuals or elders newlywed couples or married couples with children common law couples with children (common law is defined by N.S. provincial legislation as two years cohabiting as husband/wife) single individuals with children single individuals/couples without children First Nation housing units which have been destroyed due to disastrous circumstances or subject to a loss due to fire will be deemed a higher priority than the previous sub-headings
(h) If a person vacates an existing Band house, the vacated Band house shall become available for re-allocation and the matter shall be returned to the Council for a decision on reallocation. The past occupant shall not have any role in the decision on re-allocation. However, the Council may take into consideration other family members of the past occupant who require housing. (i) Upon default under the terms of a mortgage on a house located on the Reserve where the First Nation has provided a ministerial guarantee for the repayment of the mortgage, and upon the First Nation recovering full ownership and possession of the house, the house may be reallocated as a Band house . The Council shall make any decisions in regard to renovations, destruction or future allocation of such houses based upon the criteria described above in this section of the by-law. (j) All decisions of the Council in relation to the allocation of housing shall be posted in a public place on the reserve. DIV ORCE/SEP ARATION 39. When a couple separates or is divorced, and only one of the parties is a member o f the First Nation, the member shall be provided the exclusive right to reside in the house. However, it shall be within the discretion o f the Council to allow the non-member to reside in the house for a reasonable period of time in order to allow that person to make alternative living arrangements. 40. When a couple separates or is divorced and both parties are members, the Council shall decide which of the two members will be allowed to reside in the house. The Council’s decision shall be based on the criteria listed in section 38. 41. The Council shall have the right to delay a decision until the matters before the court have been settled. The parent with full legal or defacto custody and care and control o f any children shall retain the house. In the case where the court awards joint custody of the children to both parents, the house shall be allocated to the parent with primary care and responsibility for the children and with whom the children live for the majority of the time. 42. If the parent or guardian with primary care and responsibility of the children is not a member but the children are, the custodial parent may be granted exclusive possession of the house for whatever period of time the Council deems appropriate. If the non-member begins to cohabit with a non-member, the reserves the right to evict both from the home or demand a payment of rent that the Council deems appropriate. 43. The above rules shall also apply in the case of common-law and same-sex couples. NEW AND PREVIOUSLY OWNED BAND HOUSES 44. Applicants for a housing allocation shall be offered previously occupied Band houses as they become available, in accordance with section 38. 45. Applicants have the right to refuse a previously occupied Band house and to maintain their ranking on the housing priority list. 46. If an applicant accepts a previously occupied Band house, that person shall be removed from the housing priority list and shall not be permitted to apply for a Band house for at least three years from the date of acceptance of the previously occupied Band house subject to a decision to
the contrary by Council. 47. Applicants accepting a new CMHC Band house shall not be allowed to apply for another new CMHC Band house for a period of fifteen years from the acceptance o f the previous new CMHC Band house subject to a decision to the contrary by the Council. REVIEW 48. Any member or members of the First Nation directly affected by a decision of the Council made in relation to the allocation of Band houses under this by-law may request a review of the decision by the Council. 49. The member shall submit a written request to the Council for a review within 10 days of the disputed decision. 50. The member shall clearly state the grounds for the request. 51. Upon receipt of the written request, the Council may deny the request if it determines that the member has not provided sufficient grounds for a review. Such denial by the Council shall be final and binding and shall not be subject to further requests for review. The member shall be notified in writing of the decision. 52. If the Council does not deny the request for the reasons outlined in section 51, the Council shall undertake a review of its decision and the following conditions shall apply: (a) in the course of its review, the Council may meet with the member in order to provide the member with an opportunity to fully explain his or her position; (b) the Council shall make a decision on the review no later than 30 days from the date upon which it was received by the Council from the member; (c) the Council shall advise the member, in writing, of the results of its review; and (d) the decision of the Council in relation to the review shall be binding and final. REPAIRS AND RENOVATIONS 53. The First Nation shall maintain a “Repairs and Renovations Program” within the limits of the financial resources available. In order to make the best use of the limited funds available, the following criteria shall apply to repairs and renovations: (a) once a tenant receives a major renovation of their Band house, they shall not be eligible for placement on the Housing Allocation Priority List for ten years following the date of completion of the major renovations; (b) the Council shall ensure that the tenant is provided with a report of all expenditures that were incurred as a consequence of the major renovation; and (c) for the purposes of this section, a “major renovation” means (i) Repairs in one project exceeding $20,000, (ii) An extension to an existing home, (iii) Replacement of a foundation, (iv) Replacement of a roof, or (v) Replacement of all windows in a home. 54. Occupants must present a written request for repairs or renovations to the Manager of the Housing Department who shall ensure that the request is presented to the Council for a decision. 55. Minor house repairs are the sole responsibility of the occupants of the Band house.
EMERGENCY REPAIRS 56. The First Nation will cover the cost of emergency repairs in the following situations when funds are available and the work is approved by the Manager of the Housing Department: (a) repairs to frozen pipes where it is determined that it was not caused by the neglect of the occupant and not more than once a year; (b) roof leaks, (c) major electrical appliance repair for elders or persons on social assistance if it is determined that the appliance is necessary and can be repaired to a safe operating level, (d) fumigation where it is determined to be necessary, (e) septic tank cleaning but not more than once every two years, (f) furnace repairs, (g) electrical repairs, or (h) chimney repairs not more than once a year. 57. The following situations do not constitute an emergency: (a) broken windows, (b) broken doors or door locks, or (c) repairs required due to neglect, lack of care or intentional abuse. 58.1n order for an occupant to be eligible for reimbursement for emergency repairs, the occupant must: (a) make a written application to the Council; (b) demonstrate that the required repairs are necessary due to fire damage or for health or safety reasons, and (c) receive prior approval from the Council before starting repairs. 59. Occupants are responsible for the day to day maintenance of their Band house. 60. Occupants are responsible for any repairs of damage to the Band house or a need for services that arise from neglect, vandalism, abuse by the occupant, their family, their relatives and guests and any costs of such repairs, including but not limited to the following items:, (a) doors, doorjambs, windows, sills; (b) interior or exterior paint and painting; (c) electrical switches, fixtures or bulbs; (d) damage to walls, ceilings or floors; (e) damage to smoke detectors/CH detectors or fire safety equipment; (f) damage caused by vehicles or machinery, or (g) any other damage that in the determination of the Council has been caused by neglect, abuse, lack of care or vandalism which was preventable by the occupant. 61. All wilful damage to Band houses shall be recovered by the Band’s Administration Department through deduction from wages if the occupant is an employee of the First Nation. All other recovery shall be obtained through the provincial Small Claims Court. 62. The First Nation shall, wherever financially possible, be responsible for the cost of repairs and renovations in relation to the following items: (a) Furnace or heating system unless section 60 applies, (b) Sewer or water systems and septic tanks unless section 60 applies, (c) Electrical wiring, installations, and hook-ups unless section 60 applies,
(d) Structural problems with foundations, roofs, or walls, (e) Deterioration caused by normal wear and tear which does not include the situations contained in section 60, (f) Damage or problems directly related to improper construction, materials, or workmanship where the original work was done by the First Nation or, (g) Damage caused by natural disasters, such as lightning, flood, or hurricane. 63. The Council shall refer to the criteria set out in section 38 as one of the factors to be utilized when determining their priorities for repairs and renovations. 64. The First Nation shall not be responsible for, nor pay for any repairs or renovations that are undertaken without the prior written approval of the Council in a duly convened meeting of the Council. VACANT OR ABANDONED HOUSES 65. No person shall take possession of or begin to live in a vacant Band house, without the prior written approval of the Council and the execution of an occupancy agreement with the Council. Any person occupying a Band house without such approval and the execution of an occupancy agreement shall be removed from the Band house and may be excluded from the Housing Allocation Priority List for a period of time to be determined by the Council. The person may also be subject to criminal and/or civil penalties. 66. If the occupant o f a Band house will not be living in the house for an extended period of time, the occupant shall apply in writing to obtain the consent of the Council to cease living in the house for a specified period of time. 67. A Band house may be declared by the Council to be "vacated" or "abandoned" when the occupant is no longer living in the house and the occupant has not obtained the written consent of the Council to cease living in the house for an extended period of time. 68. If the occupant of a Band house advises the Council in writing that, by reason of a job placement or other compellable reason, the Band house that they are currently occupying will be unoccupied for a specific period of time, the Council may decide not to determine the house to be “abandoned” for the purposes of this by-law for such period of time as the Council may determine. 69. Any Band house which has been declared as vacant or abandoned by the Council shall become available for allocation to an applicant member already on the Housing Allocation Priority List. 70. In cases where a house is privately owned (not a Band house) and the owner vacates the house, the owner is responsible for the safety, care, and security of the house. For the purpose of protecting the safety of the public, the owner shall notify the Council in writing if the house is to be vacant for an extended period of time 71. If a Band house has not been declared by the Council to be “vacated or “abandoned” but remains vacant for an extended period of time, it is the responsibility of the occupant to provide security for the house and to maintain all necessary utilities and services for the home.
72. The First Nation shall not be responsible for any damage that may occur to Band houses or houses located on properties for which a Certificate of Possession has been issued, which are left vacant for extended periods of time. EVICTION 73. The First Nation owns all Band houses and remains responsible and accountable for the proper use and maintenance of the housing assets of the First Nation. The First Nation therefore reserves the right to evict an occupant pursuant to the occupancy agreement. 74. Any of the following circumstances shall be deemed to be "just cause" for the eviction of an occupant pursuant to an occupancy agreement: (a) regular or serious damage to, or abuse of, the Band house, including serious neglect of the maintenance and repair of the Band house; (b) refusal by the occupant to pay service charges or other such fees as set by the First Nation; (c) repeated “abandonment” of the house; (d) repeated cases of criminal activity within the house; (e) repeated partying or complaints with regard to significant noise levels within the house; or (f) the occupant, prior to his or her death, did not indicate their wish for one of their surviving children to become the occupant of the Band house upon the execution of an occupancy agreement with the Council.. 75. The Council may execute and serve an Eviction Notice on the occupant of a Band house upon a determination by the Council at a duly convened meeting that just cause for eviction exists. This notice shall be in the form adopted by the Council and shall provide, at a minimum, thirty (30) days notice to vacate the Band house, unless the Council determines that immediate eviction is required to protect the house from serious damage or destruction or to protect the public from immediate risk of injury. 76. No person who has been served with an Eviction Notice pursuant to s.75 shall fail or refuse to vacate the Band house as required by the Eviction Notice. STANDARDS 77. The First Nation reserves the right to develop and to apply standards for design, construction, maintenance, and the protection of health and safety with regard to any houses on the reserve. All houses, whether owned by the First Nation or privately owned must meet the minimum standards guide in section 78. 78. For the purposes of this by-law, the following list shall be the "minimum standards guide" unless amended by the Council or superseded by Chapel Island First Nation by-laws: (a) The National Building Code o f Canada, (b) Supplement to the National Building Code o f Canada,
(c) Building Standards fo r the Handicapped (Supplement to the National Building Code, (d) National Fire Code o f Canada, (e) Measures fo r Energy Conservation in New Buildings (E.M.R.), (f) relevant Nova Scotia Statutes Codes and Regulations, (g) standards established by the Canadian Standards Association, (h) standards established by the Government of Canada in relation to drinking water, water supply, and sewage treatment and disposal, (i) Environment Canada standards for waste water and sewage, (j) National Plumbing Code o f Canada, (k) Canada Drinking Water Standards and Objectives (M.S.B.), (l) Glossary of House Building Terms (C.M.H.C.), (m) Illuminating Engineering Society Standards, and (n) E.M.R. energy conservation measures and policies, 79. The Council shall ensure that all necessary monitoring and inspections with regard to items contained in the “minimum standards guide” are conducted by qualified inspectors including Chapel Island First Nation inspectors, CMHC. inspectors, federal and provincial health inspectors, and federal and provincial environment inspectors. RENT OR SERVICE CHARGES 80. The First Nation owns all Band houses and related infrastructure and utility systems on the Reserve. The First Nation is responsible for the maintenance, repair and renovations of Band houses. Therefore, the Council may determine that it is necessary to apply rent, fees, or service charges to the occupancy of Band houses from time to time. 81. Band houses and the services and utilities provided to the occupant thereof may be subject to such rent, fees or service charges as may be set from time to time by the Council. Such rents, fees or service charges shall be identified in writing, delivered to the occupant, and publicly posted by the Council. 82 The First Nation may charge rent, fees or service charges for apartments or any other special housing development owned and managed by the First Nation. The Council shall provide notification of such rents, fees or service charges to the occupants of Band houses and to the public on the Reserve. INSURANCE 83. Where the necessary funding is available, the First Nation may insure all Band houses. Occupants shall be notified as to the status of insurance on the house that they are occupying. Where the First Nation is unable to insure a house, the occupant will have the opportunity and will be encouraged to purchase house insurance coverage themselves. In such a case the First Nation shall be named as co
beneficiary and any insurance proceeds with regard to such policies shall be paid to the First Nation. However, the occupant will be guaranteed the benefit of any necessary repairs, renovations or re-building of the Band house that are completed by the First Nation. 84. Occupants will be encouraged by the First Nation, where possible, to purchase contents insurance for their personal possessions located in the Band house. 85. The Council may determine, from time to time, such appropriate policies and coverages that would provide the occupant with adequate insurance coverage for the Band house, or infrastructure and utilities. 86. The owner of a house located on a property for which a Certificate of Possession has been issued shall be responsible for insuring the buildings and any other property located thereon and shall be the beneficiary under any insurance policy. APPROVAL REQUIREMENTS 87. No person shall fail to obtain any approvals from the Council that may be required to conduct any type of operation or do any activity related to housing on the reserve. 88. No person shall fail to comply with the terms and conditions of any permit, licence or approval, or fail to comply with any act or regulation which might apply to any activities related to housing on the reserve. APPOINTMENT OF ENFORCEMENT OFFICER 89. The Council may appoint an employee of the First Nation as an enforcement officer to administer, on behalf of the Council, the provisions of this by-law. PUBLICATION 90. The Council shall ensure public notification of the enactment of this by-law and any subsequent amendments. PENALTIES 91. Any person who violates any of the provisions of this by-law shall be guilty of an offence and shall be liable on conviction to a fine not exceeding one thousand dollars ($1,000.00), imprisonment for a term not exceeding 30 days, or both fine and imprisonment. 92. Where this by-law is contravened and a conviction entered, in addition to any other remedy and to any penalty imposed by the by-law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted.. EFFECTIVE DATE AND AMENDMENTS 93. The Council has duly enacted this by-law according to the provisions of the Indian Act at a properly constituted meeting of the Council. 94. This by-law shall come into force 40 days after a copy of this by-law is forwarded to the Minister unless the Minister declares the By-law to be in force prior to the expiration of the 40 day period.
95. This by-law may be amended in accordance with the provisions of the Indian by a resolution of the Council and all such amendments shall be adhered to and have the same force and effect as if they had been originally embodied in and formed part of this by-law. Chief Wilbert Joseph Marshall Cozmculdfr nzie James Marshall
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.