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0 0 9 8 8 1 By-law No. 01-2006 of the Madawaska Maliseet First Nation Band A By-Law Governing the Residence of Band Membef'& ahdiOther 07 51 Persons on the St. Basile Indian Reserve #10 Being a By-Law to Repeal and Replace the Residency By-Law (SOR/87-355) of the Madawaska Maliseet First Nation Band Enacted on the 27th Day of April 1987. WHEREAS the Reserve lands of the Madawaska Maliseet First Nation Band are for the sole use and benefit of the band members of the Madawaska Maliseet First Nation Band; WHEREAS the previous enacted Residency By-law (SOR/87-355) did not permit people who are not band members to reside on the reserve; WHEREAS Band Members rights and access to services need to be protected; WHEREAS the Council of the Madawaska Maliseet First Nation Band desires to make a by-law governing the residence of band members and other persons on the reserve; WHEREAS the Council of the Madawaska Maliseet First Nation Band is empowered to make such by-law pursuant to paragraphs 81(l)(p.l), (q) and (r) of the Indian Act; WHEREAS it is considered necessary for the safety, health, welfare, good order and advancement of the Madawaska Maliseet First Nation Band to regulate the residence of persons who are not band members on the reserve; AND WHEREAS the Council of the Band did enact a By-law Respecting Residency on the 27th Day of April, 1987, and wishes to repeal the said By-law and replace it with this by-law; NOW THEREFORE the Council of the Madawaska Maliseet First Nation Band hereby makes the following by-law: Short Title 1. This by-law may be cited as the "Madawaska Maliseet First Nation Band Residency By-Law". Interpretation 2. In this by-law: "applicant" means a person, not being a band member, who has submitted an application for permission to be a resident of the reserve in accordance with section 5;
"band" means the Madawaska Maliseet First Nation Band; "band member" means a person whose name appears on the Madawaska Maliseet First Nation Band Membership List; "child" includes a child bom in or out of wedlock, a legally adopted child and a child adopted in accordance with Indian custom who is under the age of 18, and includes band members and non-band members; "council" means the Council, as defined in the Indian Act, of the Madawaska Maliseet First Nation Band; "dependant child" includes any child under the age of 18, or over 18 who is in school and still dependant or is mentally dependant being so diagnosed by a physician; "dwelling" means any house, apartment, mobile home, or a room located therein, or any similar lodging suitable for habitation; "officer" means any police officer, police constable or other person charged with the duty to preserve and maintain the public peace, and any by-law enforcement officer or other person appointed by the Council; "principal residence" means the place at which a person resides on a more permanent basis than at any other place at which the person may reside from time to time; "reserve" means all reserves occupied by the Madawaska Maliseet First Nation Band; "reside" means to live in a dwelling, otherwise than as a visitor to the reserve; "resident" means a person who is entitled to reside on the reserve, as provided by section 3; "spouse" means a person who is married to, or who co-habits in a relationship of some permanence and commitment, akin to a conjugal relationship, with a resident of the Madawaska Maliseet First Nation Band; "undefined period" does not mean forever; "visiting" is defined as being in a residence for less than one month, unless it is a child visiting for summer vacation, which would be for a maximum of two months. Entitlement to Reside on Reserve 3.(1) A person is entitled to reside on the reserve only if the person:
(a) is a band member; or (b) is authorized to reside on the reserve pursuant to one of the following provisions of the Indian Act: sections 18.1,20, and 24 and subsections 28(2) and 58(3); or (c) has the permission of the Council pursuant to section 7, to be a resident of the reserve. (2) A spouse or dependent child of a person who is entitled to reside on the reserve under subsection 3(1 )(c), who wishes to reside with that person, must also apply to become a resident pursuant to section 5. (3) Notwithstanding subsection (2), any spouse or dependent child of a person who has been granted permission to reside on the reserve for a defined period is not entitled to reside on the reserve after the end of that defined period. Registrar of Residents 4.(1) The Council shall appoint a Registrar of Residents for a term of five (5) years, who shall be a band member of Aboriginal descent, to provide for the administration of applications, petitions and appeals made under this by-law and to maintain records related to the residents of the reserve. (a) In the event that no band member of Aboriginal descent is interested or available to be appointed as a Registrar by the Council, the Council will refer to their current employment policy regarding priorities. (2) The Registrar of Residents shall maintain a Residents List, on which is recorded: (a) the name of each resident, with a corresponding residency number; (b) an indication as to whether each resident is a resident for an undefined or defined period, with or without conditions; / (c) an indication as to whether each resident is a band member pursuant to the membership rules of the Band; (d) the length of any defined period of residence; and (e) the location of each resident's dwelling; (3) The Council shall determine the appropriate remuneration for the Registrar; (4) The Residents List shall remain in the Band Office in a secure location at all times; (5) Only the first and last names on the Residents List shall be accessible by all band members.
Application to be a Resident 5.(1) A person, who is not a band member, who wishes to reside on the reserve shall apply to the Council for permission to reside on the reserve for a defined or undefined period, or to extend any defined period for which permission was previously granted under this by-law by completing an application form provided by the Registrar of Residents and paying any applicable fees set by the Council. (2) The application may be made by the applicant alone or on behalf of the applicant and all or any one or more of his or her spouse and dependent child or children. (3) Non band members that are visiting are not required to apply for an application to reside on the reserve under subsection 1. (4) The application shall be filed with the Registrar of Residents and shall include: (a) the name and marital status of the applicant; (b) the name of the applicant’s spouse and dependent children and whether or not they are band members, if applicable; (c) the applicant's reasons for applying to be a resident; (d) if the applicant proposes to reside on the reserve for a limited time, the approximate duration of the proposed residence; (e) the location at which the applicant proposes to reside; (f) the applicant’s current employer; (g) how the applicant intends to contribute to the community; (h) the applicant’s knowledge of Maliseet history, culture and language; (i) two (2) letters of reference, at least one from a band member; (j) a completed criminal background check by the Canadian Police Information Centre (“CPIC”); and (k) any additional information the applicant wishes to provide relating to the considerations listed in subsection 7(2). (5) The Council may determine from time to time the form or manner of any applications pursuant to subsection 5(1) and may determine any fees or charges payable by the applicant regarding the making of any application.
(6) Notwithstanding subsection 5(1), all non band members currently residing on the reserve at the time this by-law is enacted, will automatically be granted permission from the Band Council to reside on the reserve for an undefined period of time. (a) The Registrar will assist in filling out applications for all non band members currently residing on reserve at the time this by-law is enacted. (b) Any fees or other requirements may be waived and no hearing may take place for those band members currently residing on reserve at the time this by-law is enacted. (c) If a non band member currently residing on reserve at the time this by law is enacted, refuses to sign the application, permission will not be given to reside on reserve pursuant to section 3(1 )(c) and that person will have to make an application under section 5(1). (d) Upon given permission to reside on the reserve, non-band member residents will be issued a Photo Identification Residency Card that contains: (i) the name of the Resident; (ii) the name of the Band Member associated with that resident; (iii) a residency number; (iv) the address of the Resident; (v) the expiry date of the permission (if applicable); and (vi) the Resident’s signature. Hearing 6.(1) Within ninety (90) days after the filing of a properly completed application, the council shall hold a hearing with respect to the application. (2) At least fourteen (14) days prior to the hearing, the Registrar of Residents shall: a) give written notice to the applicant of the date, time and place of the hearing and inform the applicant that he or she has a right to appear at the hearing and be heard in support of the application; and b) post in the Band office a copy of the notice. (3) At the hearing, the Council shall (a) provide the applicant with an opportunity to present evidence and to make oral and written submissions, or both, in support of the application; and (b) provide any resident present at the hearing with an opportunity to be heard; and (c) accept any written evidence by any resident received prior to the hearing.
(4) The council may make rules of procedure governing the hearing of applications and shall keep records of its proceedings. Decision 7.(1) After it has heard all of the evidence and submissions, the Council shall meet in private to consider the application. (2) In determining whether an application for permission to be a resident of the reserve should be granted, the Council shall take into consideration each of the following: (a) where the applicant has arranged for a place to reside on the reserve; (b) whether the applicant is a spouse or dependent child of a band member; (c) whether the applicant is, or is the parent, child or grandchild of, a person who is registered as an Indian or entitled to be registered as an Indian under the Indian Act; (e) whether the applicant's residing on the reserve would be compatible with the culture, society and community of the Band and welfare of the members of the Band residing on the reserve; (f) whether the applicant is of good moral character; (g) the extent to which the applicant is prepared to commit his personal and economic resources to the welfare and advancement of the community residing on the reserve; (h) the availability on the reserve of adequate housing, land and services; and (i) whether the applicant is or will be employed on the reserve; (j) any other consideration that, in the opinion of the Council, is relevant to the health, safety, good order and advancement of the Madawaska Maliseet First Nation Band community. (3) If the Council grants an application, with or without conditions, the applicant and any other persons listed in the application shall be thereupon entitled to reside on the reserve for an undefined or defined period of time (which may be extended if appropriate on proper application pursuant to the provisions of this by-law) subject to the fulfillment of any conditions specified in the decision of the Council considering and deciding upon the application under the provisions of this by-law. (4) If the Council grants an application, with or without conditions, the non band members listed in the application shall be required to sign an Agreement acknowledging that they do not have the right to vote in band council elections; that they do not have the
right to possess land on the Reserve; and shall not be allowed to access discretionary services on the Reserve; and shall be required to keep the peace. (5) Within ten (10) days after the hearing, the Council shall dispose of the application by: (a) granting the applicant permission to be a resident of the reserve for an indefinite period until such time as the applicant ceases to reside on the reserve, and/or with conditions; (b) granting the applicant permission to be a resident of the reserve for a defined period with conditions; (c) extending any defined period for which permission was previously granted to the person by the Council to be a resident of the reserve; or (d) refusing the application, and shall give written notice of its decision to the applicant, incorporating reasons in support of its decision. (6) Within five (5) days after disposing of the application, the Council shall post a notice of its decision in the Band office. (7) Any applicant whose application is refused under this section may appeal to the Committee of Elders pursuant to section 12. Reapplication 8. Where an application made under section 5 is refused pursuant to the provisions of section 7, the Council is not required to consider any further application by that person for a period of one (1) year from the date of the refusal, unless the applicant can show that there has been a material change of circumstances. Enforcement 9.(1) An officer may order any person who is residing on the reserve, and who is not a resident, to cease to reside on the reserve. (2) Where a person who has been ordered under subsection (1) to cease to reside on the reserve fails or refuses to do so within thirty (30) days after the order is made under subsection (1), an officer may issue a further order prohibiting the person from being on or re-entering the reserve for a period of sixty (60) days. (3) Any person who fails or refuses to comply with an order made under subsection (2), commits an offence, and is subject to a fine or jail pursuant to section 14.
(4) Every one who assists a person, who has been ordered to cease to reside on the reserve and continues to reside on the reserve, commits an offence, and is subject to a fine or jail pursuant to section 14. Revocation of Entitlement to Reside 10.(1) When a band member ceases to reside on the reserve (by leaving, and remaining off the reserve with the apparent intention of abandoning the reserve as his or her place of residence), or is legally separated or divorced from a spouse under applicable family law legislation: (a) any dependent child of that band member who is not also a band member shall lose permission that he or she had to reside on the reserve; and (b) any spouse of that band member who is not also a band member shall lose permission to continue to reside on the reserve based upon any permission earlier given by the Council to reside on the reserve. (c) The person or persons referred to in subsections (a) and (b) of this subsection may make a new application under this by-law to continue to reside on the reserve for a defined period. (2) On the petition of any ten (10) residents, who are at least 18 years of age, the Council may revoke the entitlement of any person to reside on the Reserve who is referred to in section 3(1 )(c), where, after a hearing, it has been shown that: (a) the person, while a resident of the reserve, has been convicted of an indictable offence under the Criminal Code (Canada) for which a pardon has not been granted; or (b) the person, within any period of two years while residing on the reserve, has committed two (2) or more offenses under the Criminal Code (Canada), against the person or property of another resident, for which he has been convicted and for which a pardon or pardons have not been granted; and that it would be detrimental to the best interests of the Band to permit the person to continue to be a resident on the reserve; or (c) the person, while a resident of the reserve, has not kept a good moral character which would be detrimental to the community well-being; or (d) the resident, being a resident for a defined or undefined period pursuant to section 7(5)(a) or (b) or 13(l)(a) or (b), has breached any of their conditions. (3) Within thirty (30) days after the petition referred to in subsection (2) is received by Council, the Council shall hold a hearing into the matter. (4) At least fourteen (14) days prior to the hearing, the Registrar of Resident shall:
(a) give written notice to each petitioner and to the affected resident of the date, time and place of the hearing and informing the petitioner and the affected resident that he or she has a right to appear at the hearing and to be heard; and (b) post in the Band office a copy of the notice. (5) At the hearing, the Council shall: (a) provide each petitioner and the affected resident with an opportunity to present evidence and to make oral and written submissions, or both, on the petition; and (b) provide any resident present at the hearing with an opportunity to be heard. (6) The Council may make rules of procedure governing the hearing of petitions under this section and shall keep records of its proceedings. (7) After it has heard all of the evidence and submissions, the Council shall meet in private to consider the petition. (8) Any revocation of entitlement of a person to reside on the reserve shall require a unanimous decision of the Chief and Council voting in favour of the petition and shall incorporate written reasons in support thereof. (9) Within ten (10) days after the hearing, the Council shall render its decision in writing to the petitioners and the affected resident. (10) Within five (5) days after the Council's decision, the Council shall post a notice of the decision in the Band office. (11) No revocation of a resident's entitlement to reside on the reserve shall affect the entitlement of the spouse and children of that resident to continue to reside on the reserve. (12) A resident whose entitlement to reside on the reserve has been revoked by the Council under this section may appeal the decision of Council to the Committee of Elders pursuant to section 12. Committee of Elders 11.(1) The Council shall appoint a Committee of Elders, consisting of three (3) Elders of the Madawaska Maliseet First Nation Band, to hear appeals pursuant to sections 7 and 10 and to make recommendations to the Band Council. (2) Any recommendation of the Committee of Elders requires the support of all three (3) Elders.
(3) The Committee of Elders may make rules of procedure governing appeals and shall keep records of its proceedings. Appeals 12.(1) Within thirty (30) days after the posting of a notice of the Council's decision in the Band office, the applicant in the case of section 7, or the affected resident in the case of section 10, may appeal the Council's decision to the Committee of Elders by filing a written request with the Registrar of Residents that the Committee of Elders hear the appeal. (2) Within thirty (30) days after the filing of the request, the Committee of Elders shall conduct a hearing with respect to the appeal. (3) At least fourteen (14) days prior to the date of the hearing, the Registrar of Residents shall: (a) give written notice to the appellant of the date, time and place of the hearing and shall inform the appellant that he has the right to appear and make oral or written submissions, or both, at the hearing in support of the appeal; and (b) post in the Band office a copy of the notice. (4) At the hearing, the Committee of Elders shall: (a) provide the appellant with an opportunity to present evidence and to make oral or written submissions, or both, in support of the appeal; and (b) provide any resident present at the hearing with the opportunity to be heard. (5) After it has heard all of the evidence and submissions, the Committee of Elders shall meet in private to consider the appeal. (6) In determining whether an appeal should be allowed, the Committee of Elders shall take into consideration the criteria set out in subsections 7(2) in the case of a section 7 appeal, and the criteria set out in subsection 10(2) in the case of a section 10 appeal. (7) Within ten (10) days after hearing the appeal the Committee of Elders shall make written recommendations to the Council. (8) The Committee of Elders shall give written notice of its decision to the appellant. Final Decision 13.(1) Within ten (10) days after the Council has received the recommendations referred to in subsection 12(7), the Council shall dispose of the application by:
(a) granting the applicant permission to be a resident of the reserve for an indefinite period until such time as the applicant ceases to reside on the reserve, and/or with conditions; (b) granting the applicant permission to be a resident of the reserve for a defined period with conditions; (c) extending any defined period for which permission was previously granted to the person by the Council to be a resident of the reserve; or (d) refusing the application, and shall give written notice of its decision to the applicant. (2) Within five (5) days after disposing of the application, the Council shall post a notice of its decision in the Band office. Penalties 14. Any person who contravenes any of the provisions of this by-law commits an offence and is liable on summary conviction to a fine not exceeding one thousand dollars ($1,000.00) or to imprisonment for a term not exceeding thirty (30) days, or both. Repeal 15. By-law SOR/87-355 enacted on the 27th day of April, 1987, and being a By-law to regulate the residence of band members or other persons on the Reserve, be and the same is hereby repealed. * * * This By-Law is hereby made at a duly convened meeting of the Council of the Madawaska Maliseet First Nation this day of , 2006. Voting in favour of the By-Law are the following members of the Council: being the majority of those members of the Council of the First Nation present at the aforesaid meeting of the Council.
The quorum of the Council is 2 members. Number of members of the Council present at the meeting: 3 I, Joanna Bernard, Chief of the Madawaska Maliseet First Nation, do hereby certify that a true copy of the foregoing By-Law was mailed to the Minister of Indian Affairs and Northern Development at the Amherst Atlantic Regional offices of the department pursuant to subsection 82(1) of the Indian Act, this day of > 2006.
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