Part II - Enacted First Nations Legislation

PENTICTON INDIAN BAND COMMUNITY SAFETY BYLAW, No. 2023-03

Enacted: August 4, 2023

Table of Contents

PART 1: GENERAL ................................................................................................................................... 1 TITLE ....................................................................................................................................................... 1 DEFINITIONS .......................................................................................................................................... I INTERPRET A TI ON ................................................................................................................................. 4 APPLICATION OF THIS BYLAW ......................................................................................................... 5 PURPOSE ................................................................................................................................................. 6

PART 2: ADMINISTRATION .................................................................................................................. 6 CHIEF AND COUNCIL PORTFOLIO HOLDER ................................................................................... 6 APPOINTMENT OF BYLAW OFFICER ................................................................................................ 6 APPOINTMENT OF ENFORCEMENT OFFICER ................................................................................. 6 APPOINTMENT OF RESTORATIVE JUSTICE PRACTITIONER ...................................................... 6

PART 3: RESTORATIVE JUSTICE ....................................................................................................... 7 PART 4: DESIGNATING AN INDIVIDUAL .......................................................................................... 9 COMPLAINT LETTER ............................................................................................................................ 9 DESIGNATED INDIVIDUAL ................................................................................................................. 9

PART 5: SPECIAL ORDER COUNCIL MEETINGS ......................................................................... 11 EMERGENCY PROTECTION ORDER OR EXCLUSION ORDER COUNCIL MEETING .............. 11 REQUEST FOR A SPECIAL SUSPENSION OR RECISSION ORDER COUNCIL MEETING ......... 11 SPECIAL SUSPENSION ORDER COUNCIL MEETING .................................................................... 12 SPECIAL RECISSION ORDER COUNCIL MEETING ....................................................................... 12

PART 6: RIGHTS OF THE HARMED PERSON ................................................................................. 12 PART 7: ORDERS .................................................................................................................................... 13 AUTHORIZATION OF AN EMERGENCY PROTECTION ORDER .................................................. 13 AUTHORIZATION OF AN EXCLUSION ORDER ............................................................................. 14 AUTHORIZATION OF A SUSPENSION ORDER ............................................................................... 14 AUTHORIZATION OF A RESCISSION ORDER ................................................................................ 15 ORDERS IN GENERAL ........................................................................................................................ 15

PART 8: EFFECTS OF AN EXCLUSION ORDER ............................................................................. 16 EFFECT OF AN EXCLUSION ORDER ................................................................................................ 16 IF DESIGNATED INDIVIDUAL HAS AN INTEREST IN THE RESERVE LANDS ......................... 16 DESIGNATED INDIVIDUAL MAY NOT ACQUIRE AN INTEREST IN THE RESERVE LANDS.17

PART 9: DELIVERY OF ORDERS ....................................................................................................... 17 PART 10: APPEAL PROCESS ............................................................................................................... 18 PART 11: ENFORCEMENT AND PENALTIES .................................................................................. 20 CONSEQUENCES OF NON-COMPLIANCE WITH ORDERS ........................................................... 20

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DUTY TO REPORT ............................................................................................................................... 20 POWERS OF REMOVAL AND ARREST ............................................................................................ 20 ENFORCEMENT OF ORDERS ............................................................................................................. 20 PENAL TIES ........................................................................................................................................... 21 FEES AND FORMS ............................................................................................................................... 21

PART 12 - AMENDMENTS .................................................................................................................... 21 PART 13 - EFFECTIVE DATE .............................................................................................................. 21 EFFECTIVE DA TE ................................................................................................................................ 21 SCHEDULE 1: RESTORATIVE JUSTICE PROCESS COUNCIL RESOLUTION ........................ 23 SCHEDULE 2: EMERGENCY PROTECTION ORDER COUNCIL RESOLUTION .................... 24 SCHEDULE 3: EXCLUSION ORDER COUNCIL RESOLUTION ................................................... 26

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WHEREAS:

A.

B.

C.

We are sqilx"' I syilx I s?uknaqinx (Okanagan people) who receive our strength from timixw and include what is good for our livelihood. We are committed to our language and the teachings of our captiklx"' and respect that everything has value and purpose to come together as one; and

As an aspect of the exercise of the inherent right of self-determination, Penticton Indian Band (PIB) has the jurisdiction to address on our Reserve Lands, through our own laws, such issues as the right to deter and prevent disorderly or nuisance-like activities from taking place on our Reserve Lands, and this inherent right of self-determination is being exercised on our Reserve Lands through our laws that are paramount to all federal or provincial laws which purpo1i to be contrary to or inconsistent with our laws; and

On June 21, 2021, the United Nations Declaration on the Rights ofI ndigenous Peoples (UNO RIP) Act of Canada came into force and provides a framework to advance implementation ofUNDRIP, including:

Article 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous fimctions.

Article 18: Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

Article 20(1): Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their uwn means of subsistence and development, and to engage freely in all their traditional and other economic activities.

Article 23: Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.

Article 26 (2): Indigenous peoples have the right to own, use, develop and control the Reserve Lands, territories and resources that they possess by reason of traditional mvnership or other traditional occupation or use, as well as those which they have othenvise acquired.

Article 32(1): Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their Reserve Lands or territories and other resources; and

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D.

E.

F.

G.

H.

I.

Federal or provincial laws may not extinguish the PlB's exercise, through our own laws on our Reserve Lands, of our inherent right of self-determination that is constitutionally protected under Section 35 of the Constitution Act, 1982; and

In the passage of this Community Safety Bylaw, the PlB relies upon our inherent right of self­ government protected by Section 35 of the Constitution Act, 1982 as supplemented by the federal authority under Paragraphs 81 (J)(a), (c), (d), (p), (q) and (r) of the Indian Act; and

PIB wishes to enact this Community Safety Bylaw to provide for the protection, health and safety of Members, Owners, and Residents on the Reserve Lands from persons that have committed an Offence, or who pose a serious threat to the physical or psychological health of Members, Owners, and Residents and from Harassment; and

PIB Chief and Council have engaged with its Members who have indicated that they support the passage of this Community Safety Bylaw and so deem it advisable and in the best interests of the PIB to enact this Community Safety Bylaw; and

PIB, in accordance with the syilx tradition, has recognized the importance of the collective rights of the community and the priority of those collective rights over the rights of the individual; and

The syilx people have historically used banishment to help preserve and promote the order, peace, and safety of the community; and

THEREFORE, PIB Chief and Council enacts the following Community Safety bylaw:

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TITLE 1.0

PARTl:GENERAL

This Bylaw may be cited for all purposes as P IB Community Safety Bylaw No. 2023-03.

DEFINITIONS 2.0 In this Bylaw, unless the context otherwise requires:

"Appeal" means an appeal of a Council Order; "Appeal Tribunal" means an appeal tribunal formed in accordance with Section 67.0; "Band Administrator" means the Band Administrator for the PIB appointed by Council who is responsible for the day-to-day operations of the Penticton Indian Band;

"Bylaw" means this Community Safety Bylaw; "Bylaw Officer" means a person or persons appointed under Section 11.0 and who works with Chief and Council to implement and enforce this Bylaw;

"Certificate of Possession" means a Certificate of Possession issued by the Minister, pursuant to subsection 20(2) of the Indian Act, to a Member that is lawfully in possession of the Reserve Lands as evidence of that members right to possession of the Reserve Lands described in the Ce1tificate of Possession;

"Child Care Facility" means a public or private pre-kindergarten facility, day-care center, childcare learning center, preschool facility, or long-term care facility for children;

"Community Facility" means a public facility operated by PIB for the use of Members, Owners, or Residents, such as a Child Care Facility, School, School Bus Stop, Recreational Facility, and Community Gathering Place, owned and/or designated by the PIB for Member, Owner or Resident use;

"Community Gathering Place" means a location designated by Council, as a community gathering place for the purpose of holding a community event;

"Controlled Drugs and Substances Act" means the Controlled Drugs and Substances Act, Canada (1996 c. 19) as amended or replaced from time to time;

"Courts" means the Provincial Cowt of British Columbia, the Supreme Court of British Columbia and the Federal Court of Canada, Trial Division;

"Council" means the lawfully elected government of PIB and includes the Chief;

"Council Portfolio Holder" means the Council portfolio holder appointed to oversee, and propose measures for, the safety of PIB community and the implementation of the provisions of this Bylaw;

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"Criminal Code" means the Criminal Code of Canada (R.S., 1985, c. C-46) as amended or replaced from time to time;

"Designated Individual" means a person who has been determined to have committed a serious Offence and this has been determined to be a designated individual by Council pursuant to Section 26.0 of this Bylaw;

"Election" means an election held by the PIB under its custom Election Code;

"Emergency Protection Order" means an emergency protection order issued as per Pait 5 and Schedule 2 of this Bylaw;

"Emergency Protection Order Council Meeting" means an emergency protection order Council meeting held pursuant to Part 5 and Schedule 2 of this Bylaw;

"Enforcement Officer" means an enforcement officer appointed by Council by Resolution for the purpose of enforcing PIB laws and bylaws, and includes a person or organization authorized or contracted by Council to enforce this Bylaw;

"e11owki11wix"'" means the cultural practice that describes how to plan, solve problems, make decisions, resolve conflicts and/or develop an action plan for syilx people. enowkinwixw principles include a commitment to balance, reciprocity, sustainability, ongoing use, ecological integrity, inclusivity, collective contributions, rights/responsibility, respect, and inter-relatedness.

"Exclusion Order" means an order made under Section 48.0;

"Exclusion Order Council Meeting" means a special exclusion order Council meeting held as ordered by Council under subsection 27.0(d) this Bylaw;

"Harassment" means any action, conduct or comment, including that of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to any person;

"Harmed Person" means an individual who has been personally harmed as the result of an offence or complaint. Harm can be physical, emotional, or financial. This includes direct victims, as well as indirect victims. An indirect victim is a person who is a family member of, or who is emotionally close to, the direct victim. An indirect victim has been harmed because of the harm done to the direct victim because of witnessing an Offence or the aftermath of an Offence.

"Improvements" means improvements, as determined according to the common law, including any buildings, structures, works, facilities, infrastructure, services, landscaping and other improvements (including any equipment, machinery, apparatus and other such fixtures forming patt of or attached to the improvements, but excluding trade fixtures) made by any person and that are, from time to time, situated on the Reserve Lands, including any alterations to any of them;

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"Interest" means a Certificate of Possession, leasehold, permit or other document that provides a right to use or occupy portions of the Reserve Lands;

"Member" means a person that is registered on the PIB membership list;

"Offence" means a drug offence under Section 5.0 and Schedules I to V of the Controlled Drugs and Substances Act; a sex offence under Sections 151 to 173 of the Criminal Code; or a violent offence under Sections 229 to 240, 244 to 248, 264 to 273, 279 to 286 and 433 of the Criminal Code, or a combination of more than one of them;

"Order" means an Emergency Protection Order, Exclusion Order, Suspension Order or Recission Order made under this Bylaw;

"Owner" means: (a) the PIB, in relation to Reserve Lands that are not held under a Ce1tificate of Possession;

(b)

( c)

a person that has a Ce1tificate of Possession for a po1tion of the Reserve Lands; and

a PIB corporate or other entity that holds a legal interest in portions of the Reserve Lands.

"Pardon" means a pardon granted by the National Parole Board under the Criminal Records Act (R.S., 1985, c. C-4 7);

"Penticton Indian Band" or "PIB" means the Penticton Indian Band, a band within the meaning of section 2( 1) of the Indian Act;

"Public Place" means a place or building to which any Member has or is permitted to have access or any other place determined by a quorum of Council to be open to use by the public;

"Recreational Facility" means a public facility operated by the PIB for the use of Members, Owners, or Residents for sports and recreational activities, including, but not limited to, swimming pools, beaches, public parks, skateboarding parks and bicycle paths;

"Referendum" means a referendum held under the Indian Act;

"Rescission Order" means an order made under Section 51.0;

"Rescission Order Council Meeting" means a special recission order Council meeting held pursuant to Part 5 of this Bylaw;

"Reserve Lands" means the following reserve lands that have been set apart for the use and benefit of PIB:

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(a)

(b)

(c)

( d)

(e)

Penticton Indian Reserve No. 1;

Penticton Indian Reserve No. 2;

Penticton Indian Reserve No. 3A;

reserve lands set apart by Canada in the future as Reserve Lands reserved for the use and benefit of the PIB, within the meaning of subsection 91(24) of the Constitution Act, 1982; and

lands legally owned by one of the PIB's corporate or other entities in fee simple and beneficially owned by the PIB.

"Resident", in relation to premises, means a person entitled to use, possess, or occupy a premise(s) on the Reserve Lands either:

(a)

(b)

under a valid reserve land instrument that is registered in the Indian Reserve Lands Registry System (ILRS); or

with the lawful consent of the Owner(s);

"Resolution" means a Band Council Resolution passed at a duly convened Council meeting by a quorum of Council;

"Restorative Justice" means seeking to repair harm by providing an opportunity for those harmed and those who take responsibility for the harm to communicate about and address their needs in the aftermath of an Offence through an enowkinwixw style process;

"Restorative Justice Practitioner" means an individual appointed under Section 13 .0 of this Bylaw;

"Restorative Justice Committee" means the individuals appointed by Council to oversee the enowkinwixw style process;

"School" means a public or private kindergarten, elementary, middle, or secondary school;

"School Bus Stop" means a school bus stop as designated by the PIB;

"Suspension Order" means an order made under Section 50.0;

"Suspension Order Council Meeting" means a special suspension order council meeting held under Section 42.0 of this Bylaw;

INTERPRETATION 3.0 This Bylaw must be interpreted in a fair, large, and liberal manner.

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4.0

In this Bylaw:

(a)

(b)

( c)

(d)

( e) (f)

(g)

(h)

(i)

U)

The use of the word "must" denotes an obligation that, unless this Bylaw provides to the contrary, must be carried out as soon as practicable after this Bylaw comes into effect or the event that gives rise to the obligation;

Unless it is otherwise clear from the context, the use of the word "including" means "including, but not limited to", and the use of the word "includes" means "includes, but is not limited to";

Headings and subheadings are for convenience only, do not form a part of this Bylaw and in no way define, limit, alter or enlarge the scope or meaning of any provision of this bylaw;

A reference to a statute includes every amendment to it, every regulation made under it and any bylaw enacted in substitution for it or in replacement of it;

A reference to a government office includes every successor government office;

Unless it is otherwise clear from the context, the use of the singular includes the plural, and the use of the plural includes the singular;

Unless it is otherwise clear from the context, the use of the masculine includes the feminine, and the use of the feminine includes the masculine;

Where a time is expressed to begin or end at, on or with a specified day, or to continue to or until a specified day, the time includes that day;

Where a time is expressed to begin after or to be from a specified day, the time does not include that day; and

Where anything is to be done within a time after, from, of or before a specified day, the time does not include that day.

APPLICATION OF THIS BYLAW 5.0 This Bylaw applies to the Reserve Lands and all persons that enter the Reserve Lands.

6.0

7.0

8.0

If any section of this Bylaw is for any reason held invalid by a decision of a court of competent jurisdiction, the invalid section or subsection must be severed from, and not affect, the remaining provisions of this Bylaw.

The headings given to the sections and paragraphs in this Bylaw are for convenience of reference only, and do not form part of this Bylaw and must not be used in the interpretation of this Bylaw.

Unless otherwise noted, any specific statute named in this Bylaw is a reference to an enactment of Canada and the regulations thereto, as amended, revised, consolidated, or replaced from time to

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time, and any Law referred to herein is a reference to a bylaw of the PIB, as amended, revised, consolidated or replaced from time to time.

PURPOSE 9.0 The purpose of this Bylaw is to:

(a)

(b)

( c)

Provide for the health and safety of Members, Owners, and Residents on the Reserve Lands;

Prevent Harassment and threats being made to the safety and wellbeing of Members, Owners, and Residents; and

Protect the Members, Owners, and Residents on the Reserve Lands from persons that have committed an Offence.

PART 2: ADMINISTRATION

CHIEF AND COUNCIL PORTFOLIO HOLDER 10.0 Council may, by Resolution at a duly convened meeting, appoint a Council portfolio holder and alternate to oversee implementation of the Bylaw.

APPOINTMENT OF BYLAW OFFICER

11.0

Council must, by Resolution at a duly convened meeting, appoint one or more Bylaw Officers to carry out the duties of the Bylaw Officer as set out in this Bylaw.

APPOINTMENT OF ENFORCEMENT OFFICER 12.0 The Council may, by Resolution:

(a)

(b)

(c)

Appoint a person(s) to be an Enforcement Officer for the purposes of enforcing this Bylaw;

Enter into an agreement with a person or organization, such as the Royal Canadian Mounted Policy (RCMP) First Nations Policing Program (FNPP), to fulfill the duties and responsibilities of an Enforcement Officer under this Bylaw; or

Provide forreasonable remuneration to be paid from the PIB to a person(s) appointed under subsection 12.0(a) or a person(s) or organization that enters into an agreement with the PIB under subsection 12.0(b) .

APPOINTMENT OF RESTORATIVE JUSTICE PRACTITIONER 13.0 The Council may, by Resolution:

(a)

Appoint a person(s) to be a Restorative Justice Practitioner for the purposes of facilitating the restorative justice process under this Bylaw;

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14.0

15.0

(b)

(c)

(d)

Enter into an agreement with a person or organization, to fulfill the duties and responsibilities of a Restorative Justice Practitioner under this Bylaw; or

Provide for reasonable remuneration to be paid from PIB to a person(s) appointed under subsection 13 .0(a) or a person(s) or organization that enters into an agreement with the PIB under subsection 13.0(b).

A Restorative Justice Practitioner under this Bylaw is responsible to:

(i)

(ii)

(iii) (iv)

(v) (vi)

Create conditions that enable participants to communicate about what happened in an open and honest way, to discuss how it affected them, and to identify what can be done to address the harm caused and move forward;

Establish and maintain a safe, sensitive, and respectful environment where participants feel safe to identify and express their thoughts, feelings, and needs;

Work with participants to design a process that can meet those needs; Prepare harmed persons, offenders, their supporters, and Members to participate in the process;

Conduct any necessary assessments; and Guide the process to ensure that no further harm is created.

PART 3: RESTORATIVE JUSTICE For Council to pass a Resolution under subsection 27.0(b), ordering a Restorative Justice Process, the Bylaw Officer will work with a Restorative Justice Practitioner to ensure that the following conditions have been met:

(a) (b)

( c)

The offender must accept or not deny responsibility for the complaint; Both the victim and the offender must be informed of their rights, the nature of the process, and the possible consequences of their decision to participate in the process;

Both the victim and the offender must be willing to participate in the process on a voluntary basis; and

( d) Both the victim and the offender must consider it safe to be involved in the process. If Council passes a Resolution under subsection 27.0(b) the Enforcement Officer must, within fourteen (14) days of the date of the Resolution, deliver to the person who is the subject of that process the following, unless the Enforcement Officer is unable to effect delivery, despite using reasonable effotis to do so:

(a)

A copy of the Resolution passed under subsection 27.0(b);

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16.0

17 .0

18.0

19.0

20.0

21.0

(b)

A notice setting out the name of the Restorative Justice Practitioner and the date, time, and place of the initial restorative justice conference; and

(c) A copy of this Bylaw. The victim and the offender have the right to consult with their own legal counsel concerning the Restorative Justice Process and, where necessary, to translate and/or interpret for them throughout the process.

Minors, in addition to the rights accorded under Section 16.0, have the right to the assistance of a parent, guardian or other person if they request such assistance.