Part II - Enacted First Nations Legislation

Tsartlip Residency and Community Protection Bylaw

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Dated: July 22, 2024

1 Short Title ....................................................................................................................................... 1 2 Interpretation................................................................................................................................. 2 3 Application ...................................................................................................................................... 4 4 Responsibilities of the Complaints Administrator ....................................................................... 4 5 Residency Tribunal ......................................................................................................................... 5 6 Grounds for Removal from the Reserves ..................................................................................... 6 7 Complaints - Initial Review and Investigation .............................................................................. 7 8 Hearing ........................................................................................................................................... 8 9 Decision ........................................................................................................................................ 10 10 Special Emergency Hearings ....................................................................................................... 12 11 Appeals ......................................................................................................................................... 14 12 Re-Integration Application .......................................................................................................... 17 13 Persons Not Affected by Removal .............................................................................................. 19 14 Removal of Non-Residents .......................................................................................................... 19 15 Effective Time of Removal ........................................................................................................... 19 16 Mode of Hearings ........................................................................................................................ 19 17 Visits ............................................................................................................................................. 19 18 Personal Property ........................................................................................................................ 20 19 Penalties and Enforcement ......................................................................................................... 20 20 Additional Policies ........................................................................................................................ 21 21 Judicial Review ............................................................................................................................. 21 22 Severability ................................................................................................................................... 21 23 Immunity ...................................................................................................................................... 21 24 Amendments ................................................................................................................................ 22 25 Review .......................................................................................................................................... 22 26 Enactment .................................................................................................................................... 22 Appendix “A” - Residency Tribunal Oath of Office ............................................................................ 23 Appendix “B” – Template Residency Tribunal Order (Hearing) ........................................................ 24 Appendix “C” – Template Residency Tribunal Order (Removal from Reserve Decision) ................ 25

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WHEREAS Tsartlip has an inherent right of self-government that emanates from our people, culture, and land and is recognized and affirmed by s. 35(1) of the Constitution Act, 1982;

AND WHEREAS Tsartlip’s inherent right of self-government includes jurisdiction over its reserve lands and citizenship, and the right to determine conditions of residency on its reserve lands, including when any right or privilege of residency can be revoked;

AND WHEREAS Tsartlip, since time immemorial, has had traditional laws and teachings regarding the protection of Members, residents, and community, including a custom of banishment where an individual has, through certain actions, lost the trust of the community;

AND WHEREAS the United Nations Declaration on the Rights of Indigenous Peoples (the “UNDRIP”) provides that in exercising their right to self-determination, Indigenous peoples have the right to autonomy or self-government in matters relating to their internal and local affairs (Article 4), and that they have the right to promote, develop and maintain their own juridical systems (Article 34), and that Indigenous peoples have the right to determine the responsibilities of individuals to their communities (Article 35);

AND WHEREAS Section 81(1) of the Indian Act, R.S.C. 1985, c. I-5, as amended (the “Indian Act”) authorizes the Band Council to enact by-laws for the removal and punishment of persons trespassing on reserve lands or frequenting reserve lands for prohibited purposes, for the residence of Members and other persons on reserves and for the observance of law and order and for the prevention of disorderly conduct and nuisance on reserve lands;

AND WHEREAS Council has an obligation to protect our Members and Residents, particularly Elders, children, and other vulnerable community members, from acts or threats of acts that may cause harm or diminish the health and safety of our community;

AND WHEREAS Council seeks to maintain and protect the safety, health and order of the Tsartlip community;

AND WHEREAS it is deemed expedient and in the interest of the Tsartlip to pass this by-law;

AND WHEREAS nothing in this by-law may be interpreted as abrogating or derogating from the Indigenous or treaty rights of Tsartlip;

NOW THEREFORE Council hereby makes the following by-law:

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1.1

SHORT TITLE

This by-law may be cited as the "Tsartlip First Nation Residency and Community Protection By-law.”

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2

2.1

INTERPRETATION

In this by-law:

“Affected Resident” means a Resident who is the subject of a complaint under Part 7 of this by-law;

“Appeals Administrator” means the person appointed by Council under section 11.1;

“Appellant” means a person who submits an appeal under section 11 of this by-law;

“Child” means a person under the age of 19;

“Complainant” means a person who submits a complaint under section 7.1 of this by-law;

“Complaints Administrator” means the person appointed by Council under section 4.1, or, if Council has not appointed such a person, means the Tsartlip Administrator;

“Conflict of Interest” means any interest, relationship, association, or activity that is incompatible with a person’s roles and responsibilities under this by-law, or that can compromise that person’s impartiality. A Conflict of Interest may be actual or perceived and may be pecuniary or non-pecuniary in nature;

"Council" means the duly elected Chief and Council of Tsartlip;

“Councillors” means all members of Council, including the Chief, and “Councillor” means any single member of Council, including the Chief;

“Dependent” means a Child or a person who is over 19 years of age and is under the care of another person due to disability or illness;

"Dwelling" means any house, apartment, or mobile home, including a room located therein, or any similar lodging, whether condemned or suitable for habitation;

“Family Violence” means any of the following acts or omissions committed by a Spouse against another Spouse, any Child or Dependent in the charge of either Spouse, or any other person who habitually resides in the family home:

a) an intentional application of force without lawful authority or consent, excluding any act committed in self-defence;

b) an intentional or reckless act or omission that causes a reasonable fear of bodily harm or damage to property;

c) sexual assault, sexual abuse, or the threat of either;

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d) forcible confinement without lawful authority; or e) criminal harassment;

"Indictable Offence" means an indictable offence contrary to the Criminal Code of Canada or any other Act of Parliament and includes any hybrid offences that may proceed by way of either indictment or summary conviction, whether or not the Crown counsel decides to proceed by way of indictment or summary conviction;

"Member" means a person whose name appears or is entitled to have their name appear on Tsartlip’s band membership list or, if Tsartlip develops membership rules, any person who holds or is entitled to hold membership under those rules;

“Officer” means: a) any person designated in writing by Council to enforce this by-law; b) RCMP officers; and c) any other person charged by Canada or British Columbia with the duty to preserve and maintain public peace in accordance with their laws;

“Reserves” means: a) South Saanich Indian Reserve No. 1; b) Mayne Island Indian Reserve No 6; c) Senanus Island Indian Reserve No. 10; and

d) any lands which have been set apart as “reserves” within the meaning of the Indian Act for the use and benefit of Tsartlip, other than Goldstream Indian Reserve No. 13

and “Reserve” means any of the Reserves, as the context requires.

“Residency Tribunal” means the Residency Tribunal established under 5.1 of this by-law;

“Resident” means a person residing on a Reserve and includes persons who are temporarily absent from that Reserve because of schooling, work, travel, or similar purposes. For greater certainty, a person who has been removed from a Reserve on an interim basis in accordance with this by-law is deemed to be a Resident;

“Spouse” means a person who is married to (either via legal or customary marriage), or who co­habits in a relationship of some permanence and commitment, akin to a conjugal relationship, with another person;

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“Tribunal Member” means a member of the Residency Tribunal;

“Tsartlip Administrator” means the senior-most employee of the Tsartlip administration, whether the title of the position is “Administrator” or otherwise, and, for greater certainty, including any acting Administrator; and

“Tsartlip” means the Tsartlip First Nation;

“Designated Crime” means any sexual offence listed in Part V of the Criminal Code, any offence against the person listed in sections 219-286 of Part VIII of the Criminal Code, any offence against property listed in sections 343-344 of Part IX of the Criminal Code, and any offence listed in section 85(1) of Part III of the Criminal Code.

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3.1

3.2

APPLICATION

This by-law applies to the Reserves.

This by-law applies to all persons on the Reserves, except:

(a) A Child who is a Member; and

(b) A Child who is not a Member but is under the age of 16.

3.3

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4.1

If there is any inconsistency between previously enacted Tsartlip by-laws under section 81 of the Indian Act, this by-law prevails to the extent of the inconsistency.

RESPONSIBILITIES OF THE COMPLAINTS ADMINISTRATOR

Council shall appoint a Complaints Administrator, who is responsible for:

(a) investigating complaints against Residents in accordance with section 7.3; and

(b) unless otherwise directed by Council by Resolution, presenting evidence and making submissions on behalf of Tsartlip during hearings in accordance with sections 8.8(a), 10.4(a), and 11.11(b), as applicable.

4.2

4.3

If Council does not appoint a Complaints Administrator, then the Tsartlip Administrator shall be the Complaints Administrator.

In fulfilling their roles and responsibilities under this by-law, including with respect to any hearings under Parts 8 and 10, the Complaints Administrator must:

(a) comply with this by-law and any other Tsartlip law, policy, or procedure;

(b) act in a fair, impartial, and objective manner;

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4.4

4.5

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5.1

(c) ensure that their mandate is carried out with integrity and dignity; and

(d) avoid any Conflict of Interest.

The Complaints Administrator shall, at the first available opportunity, advise Council if they believe they are in a Conflict of Interest with respect to a matter addressed under this by-law and recuse themselves from the matter in question.

Where the Complaints Administrator recuses themselves under section 4.4, Council will appoint another person to fulfill the role of Complaints Administrator in respect of the matter in which the Complaints Administrator is in a Conflict of Interest.

RESIDENCY TRIBUNAL

The Residency Tribunal is established as an independent institution of Tsartlip and shall:

(a) determine whether to hold a hearing respecting any complaint made under section 7.1;

(b) conduct hearings and make determinations in respect any complaint made under section 7.1; and

(c) investigate and make determinations on re-integration applications in accordance with Part 12 of this by-law

5.2

5.3

5.4

5.5

5.6

5.7

The Residency Tribunal shall be composed at all times of no fewer than three (3) Tribunal Members, all of whom shall be Members.

Tribunal Members may be appointed and removed by Resolution of Council.

Council may appoint alternate Tribunal Members to serve in the event one (1) or more Tribunal Members are unable to participate in a matter dealt with under this by-law.

A Tribunal Member may resign in writing to Council, and the resignation of that Tribunal Member is effective as of the date indicated in that resignation.

Where a Tribunal Member resigns or is removed from the Residency Tribunal, Council will, at the first reasonable opportunity, appoint a replacement Tribunal Member by Resolution.

Unless otherwise specified by Council in the appointing Resolution, the term of office for each Tribunal Member shall be from the date of appointment until that Tribunal Member resigns or is removed by Council.

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5.8

5.9

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6.1

A Tribunal Member must not participate in any matter dealt with under this by-law if by doing so that Tribunal Member is in a Conflict of Interest, and in that event, the Tribunal Member must, disclose the Conflict of Interest to the Residency Tribunal at the first available opportunity, and recuse themselves from the matter in question.

The Residency Tribunal may establish additional rules governing the conduct of its procedures and hearings, provided such additional rules are not inconsistent with this by-law.

GROUNDS FOR REMOVAL FROM THE RESERVES

A Resident may be ordered to leave one or more Reserves and, subject to Part 17, be prohibited from entering one or more Reserves on a temporary basis where there are reasonable and probable grounds to believe that:

(a) the Resident has committed an Indictable Offence, and

(i) the Resident has been or will be charged with committing an Indictable Offence;

(ii) the Resident’s charges have not yet been brought to trial or otherwise resolved; and

(iii) the presence of the Resident on one or more of the Reserves presents a danger to or is likely to endanger the life or safety of one or more persons present on one or more Reserves or poses a risk of damage to property on one or more Reserves; or

(b) the Resident has committed Family Violence, and

(i) the presence of the Resident on one or more Reserves presents or is likely to present an immediate and imminent danger to any person who is at risk of harm or property that is at risk of damage; and

(ii) the seriousness or urgency of the situation requires the immediate protection of a person who is at risk of harm or property that is at risk of damage; or

(c) the Resident, within any period of two (2) years while residing on a Reserve, has been found by Tsartlip to have committed more than five (5) breaches of a duly enacted Tsartlip by-law or law.

6.2

For greater certainty, an order under section 6.1 may be made regardless of whether the Resident has been or will be charged with committing an Indictable Offence and whether or not an application for an emergency protection order has been or will be made under the Family Homes on Reserves and Matrimonial Interests or Rights Act.

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6.3

A Resident may be ordered to leave one or more Reserves and, subject to Part 17, be prohibited from entering one or more Reserves on a temporary or permanent basis where the presence of the Resident on said Reserve or Reserves presents or is likely to present a danger to the health or safety of the Tsartlip community and:

(a) the Resident has been convicted of an Indictable Offence for which a pardon has not been granted, and which offence has endangered the life or safety of one or more persons; or

(b) the Resident, within any period of two (2) years while residing on a Reserve, has been convicted of two (2) or more criminal offences against the person or property of another person, for which a pardon has not been granted.

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7.1

7.2

7.3

COMPLAINTS - INITIAL REVIEW AND INVESTIGATION

Any person may bring a complaint against a Resident to the Complaints Administrator on the basis that the grounds for removal from the Reserve under sections 6.1, 6.3 or 10.1 apply to that Resident.

The Complaints Administrator shall be responsible for receiving any complaints under section 7.1 and will open a file in respect of the complaint.

The Complaints Administrator shall investigate to determine whether a complaint is credible and could reasonably meet the grounds for interim or permanent removal from the Reserves under sections 6.1, 6.3 or 10.1, which investigation may include, but is not limited to:

(a) contacting the Affected Resident or other parties who may have relevant knowledge about the complaint;

(b) consulting with law enforcement or other agencies; and

(c) examining the Affected Resident’s background and record, including any previous complaints made against the Affected Resident which have been kept on file pursuant to section 7.9.

7.4

If, after investigating, the Complaints Administrator determines that the complaint was clearly incorrect, frivolous, vexatious, or submitted in bad faith, the Complaints Administrator will dismiss the complaint, and provide written notification of the dismissal to the person who submitted the complaint, with or without reasons.

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7.5

If, after investigating, the Complaints Administrator determines that a complaint against a Resident is credible and could reasonably meet the criteria for interim or permanent removal from the Reserves under sections 6.1 or 6.3 or 10.1, the Complaints Administrator shall provide a written report to the Residency Tribunal recommending that the Residency Tribunal:

(a) hold a hearing pursuant to Part 8; or

(b) where the circumstances as set out in section 10.1 appear to exist, hold a special emergency hearing pursuant to Part 10.

7.6

7.7

Except to the extent reasonably necessary to properly investigate the complaint, during the investigation process, the Complaints Administrator shall keep the complaint confidential.

Where the Residency Tribunal receives a report from the Complaints Administrator under section 7.5, it may, by order:

(a) hold a hearing pursuant to Part 8;

(b) decline to hold a hearing; or

(c) where circumstances warrant, hold a special emergency hearing pursuant to Part 10.

7.8

7.9

7.10

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8.1

8.2

If the Residency Tribunal declines to order a hearing under section 7.7(b), the Residency Tribunal shall close the complaint and notify the Complainant and the Affected Resident that the complaint has been closed.

If the Residency Tribunal closes a complaint under section 7.8, the complaint and report of the Complaints Administrator will be kept on file at the Tsartlip administration office for five (5) years after the date that the Residency Tribunal closed the complaint.

Only the Residency Tribunal, the Complaints Administrator, and Council shall have access to any record kept on file under section 7.9.

HEARING

Following the issuance of an order to hold a hearing pursuant to section 7.7(a), the Residency Tribunal shall hold a hearing as soon as is reasonably practicable.

Notwithstanding section 8.1, the Residency Tribunal may, in its sole discretion, grant reasonable adjournments of the hearing at the request of the Affected Resident, the Complaints Administrator, or on its own initiative.

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8.3

At least fourteen (14) days prior to a hearing under section 8.1, the Complaints Administrator shall ensure that:

(a) the Affected Resident is personally served with a written notice, setting out:

(i) the date, time, and place of the hearing;

(ii) that the Affected Resident has a right to present written and oral submissions to the Residency Tribunal and to participate fully in the hearing, including to have submissions made on their behalf; and

(b) a copy of the notice to the Affected Resident is posted publicly in the Tsartlip administration building.

8.4

If it is impractical for the Affected Resident to be served by personal service, the Complaints Administrator may serve the Affected Resident with a copy of the written notice referred to under section 8.3(a) by:

(a) posting a copy of the notice on the front door of the known Dwelling of the Affected Resident, such notice which shall be deemed to be served after 24 hours of the time of posting; or

(b) mailing a copy of the notice by registered mail to the known Dwelling of the Affected Resident, such notice which shall be deemed to be served one (1) week later on the same day of the week as the day of mailing.

8.5

8.6

8.7

If an Affected Resident is incarcerated, service of the written notice referred to under section 8.3(a) will be deemed sufficient if it is sent to the attention of the Affected Resident at the applicable correctional facility, such notice shall be deemed to be served one (1) week later on the same day of the week as the day of mailing.

Unless the Complaints Administrator recuses themselves under section 4.4, or Council otherwise directs by Resolution, the Complaints Administrator will be responsible for presenting evidence and making submissions on behalf of Tsartlip in respect of the grounds for removal from the Reserve as set out in sections 6.1 or 6.3.

Where Council appoints a person other than the Complaints Administrator to present evidence and make submissions on behalf of Tsartlip, the responsibilities of the Complaints Administrator as set out in this by-law shall apply to that person for the purposes of the hearing.

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8.8

At the hearing, the Residency Tribunal:

(a) shall provide the Affected Resident and the Complaints Administrator an opportunity to present evidence and to make oral or written submissions, or both; and

(b) may, in its discretion, and acting reasonably, provide any Residents, or other persons present at the hearing, with an opportunity to be heard insofar as time and circumstances reasonably permit.

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9.1

9.2

DECISION

As soon as is reasonably practicable after a hearing is held pursuant to section 8.1, the Residency Tribunal shall meet in private to consider the evidence and submissions presented at the hearing, and shall determine whether, in the opinion of the Residency Tribunal, the relevant grounds in section 6.1 or 6.3 are established.

Where the Residency Tribunal conducts a hearing under section 8.1 that involves grounds for removal listed in section 6.1, it shall dispose of the matter as follows: