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KINGSCLEAR INDIAN BAND BY-LAW # 10 A by-law Governing The Residence of Band Members And Other Persons On Reserve WHEREAS the Council of the Kingsclear Band desires to make a by-law governing the residence of Band members and other persons on the reserve; AND WHEREAS the Council of the Kingsclear Band is empowered to make such by-law pursuant to paragraph 81(l)(p.l),(a) and (r) of the Indian Act. AND WHEREAS it is considered necessary for the health and welfare of the Kingsclear Band to regulate the residence of Band members and other persons on the reserve; NOW THEREFORE the Council of the Kingsclear Band hereby makes the following by-law: Short Title 1. This by-law may be cited as the "Kingsclear Band Residency By-Law" Interpretation 2. In this by-law "applicant" means a person who has submitted an application for permission to be a resident of the reserve in accordance with Section 5.; "band" means the Kingsclear Band; "child" includes a child bom in or out of wedlock, a legally adopted child and a child adopted in accordance with Indian customs; "council" means the Kingsclear Indian Band Council; "dwelling" means any house, apartment, mobile home, or a room located therein, or any similar lodging suitable for habitation; "member of the Band" means a person who name appears on the Kingsclear Band list or who is entitled to have his(her) name appear on the Kingsclear Band list pursuant to the Indian Act or the membership rules of the Band;
- 2 -'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 for the purpose of maintaining law and order on the reserve; "reserve" means the Kingsclear Indian Reserve # 6 "resident' ' means a person who is entitled to reside on the reserve, as provided by Section 3; Entitlement to Reside On Reserve 3(1) A person is considered to reside on the reserve only if the person a) is authorized to reside on the reserve pursuant to section 18.1 or subsection 28(2) of the Indian Act: to be resident of the reserve. b) has the permission of the Council to section 7, or of the Committee of Elders pursuant to section 12, to be resident of the reserve. (2) A spouse or dependent child of a person who is entitled to reside on the reserve under subsection (1), who actually reside with that person at or after the time the entitlement arises, is entitled to reside on the reserve until such time as the spouse or dependent child ceases to reside on the reserve, and such entitlement is independent of the entitlement of that person. (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 4(1) The Council shall appoint a Registrar to provide for the administration of applications, petitions and appeals made under this by-law and to maintain records related to reserve membership. (2) The registrar shall maintain a Membership List, on which is recorded a. ) the name of each member; b. ) an indication as to whether each member is a resident for an indefinite or definite period; c.) the length of any defined period of residence.
- 3 Application to be a Resident 5(1) Any person may apply to the Council for permission to be a resident of the reserve or to extend any defined period for which permission was previously granted to the person by the Council to be a resident of the reserve. (2) The application shall be filed with the Registrar and shall include (a) the application’s reasons for applying to be a resident; (b) if the applicant proposes to reside on the reserve for a limited time, the approximate duration of the proposed residence; (c) the location at which the applicant proposes to reside; (d) the name of the applicant’s spouse, if any; (e) the names of the applicant’s dependent children, if any; and (f) any additional information the applicant wishes to provide relating to the considerations listed in subsection 7(2). 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 shall a) give written notice to the applicant of the date, time and place of the hearing and inform the applicant that he 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.
- 4 -(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. (4) The Council may make rules of procedure governing the hearing of applicants 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) whether the applicant has arranged for a place to reside on the reserve; (b) 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; (c) whether the applicant is of good moral character; (d) the extent to which the applicant is prepared to commit his personal and economic resources to the welfare and advancement of the community; (e) the availability on the reserve of adequate housing, land and services; and (f) whether the applicant is or will be employed on the reserve.
(3) 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; (b) granting the applicant permission to be a resident of the reserve for a defined period; (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 applicant, and shall give written notice of its decision to the applicant, incorporating reasons in support of its decision. (4) Within five (5) days after disposing of the application, the Council shall post a notice of its decisions in the Band office. (5) Any applicant whose application is refused under this 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 8, 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.
- 6 -(2) Where a person who has been ordered under subsection (1) to cease to reside on the reserve fails or refuses do 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. (4) Every one who assists a person who has been ordered to cease to reside on the reserve, to continue to reside on the reserve commits an offence. Revocation of Entitlement 10(1) On the petition of any ten (10) residents, the Council may revoke the entitlement of any person to reside on the Reserve who is referred to in section 3, other than a member of the Band or a person referred to in paragraph 3(1) (b), 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), 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 and to permit the person to continue to be a resident of the reserve. (2) Within thirty (30) days after the petition referred to in subsection (1) is received by Council, the Council shall hold a hearing into the matter. (3) At least fourteen (14) days prior to the hearing, the Registrar 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 t he has a right to appear at the hearing and to he heard; and (b) post in the Band office a copy of the notice.
-7 -(4) 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. (5) The Council may make rules of procedure governing the hearing of petitions under this section and shall keep records of its proceedings. (6) After it has heard all of the evidence and submissions, the Council shall meet in private to consider the petition. (7) Any revocation of entitlement of a person to reside on the reserve shall require a special majority of three-quarters (3/4) of the Council voting in favour of the petition and shall incorporate written reasons in support thereof. (8) Within ten (10) days after the hearing, the Council shall render its decision in writing to the petitioners and affected the resident. (9) Within five (5) days after the Council’s decision, the Council shall post a notice of the decision in the Band office. (10) A petition shall not be considered under this section in respect of a resident who, at the time of the petition, is under the age of sixteen (16) years. (11) No revocation of a resident’s 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.
- 8 Committee of Elders 11(1) The Council shall appoint a Committee of Elders, consisting of five (5) Elders of the Kingsclear Band, to hear appeals pursuant to section 7 and 10 and to make recommendations to the Band Council. (2) Any recommendation of the Committee of Elders requires the support of at least 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 that the Committee of Elders hear the appeal. (2) Within thirty (30) days after the filing of the request, the Committee of Elders conduct a hearing with respect to the appeal. (3) At least fourteen (14) days prior to the date of the hearing, the Registrar shall (a) give written notice to the appellant of the date, time and palace of the hearing and shall inform the appellant that he has the right to appear and make oral and written submissions, or both, at he hearing 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) and (3) in the case of a section 7 appeal, and the criteria set out in subsection 10(1) in the case of a section 10 appeal.
- 9 -(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 is 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; (b) granting the applicant permission to be a resident of the reserve for a defined period; (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, (2) Within five (5) days after disposing of the application, the Council shall post a notice of is 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.
- 10 THIS BY-LAW IS HEREBY enacted at a duly convened meeting of the The quorum of the Council is 3 members. Number of members of the Council present at the meeting: Lf I. Qfceua. C ^ L l aL+ CL hief/Councillor of the Band, do hereby certify that7a true copy of the foregoing by-law was mailed to the Minister of Indian Affairs and Northern Development at the District/Regional/Hull office (as the case may be) pursuant to subsection 82(1) of the Indian Act th is/2^ day of . 1993_. / / WITNESS
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