Affiresindi tau New Can wrvss/e0ss INDIAN AFFAIRS Bano Governance ano E9Ts780 10 Wellington, Room 1646 OTTAWA. ON Kia oH 19) 953-6151 Fax (618) 994-0961 Date: To: Fax: Subject: From: FAX TRANSMISSION COVER SHEET aac, 2007 Chief and Council Williams Lake Indian Band (250) 296-4750 Trespass and Nuisance By-Law Josée Beauvais, Administrative Assistant PAGE 1/04 MAR-22-2007 04: 450M You should receive 4 pages, including this cover sheet. If you do not receive all the pages, please call (819) 953-6151 Fax: 8193970034 JD:MILLIANS LEKE INOTAN PGE: 001 95%Page 02/04 Agi indiennes 21 6y Note) Canada WAR 20 2007 £4216-719 BY FAX Chief and Council Williams Lake indian Band 2672 Indian Drive WILLIAMS LAKE BC. V2G 5K9 WILLIAMS LAKE INDIAN BAND TRESPASS AND NUISANCE BY-LAW Dear Chief and Council: Please be informed that the above captioned by-law will come into force on March 24, 2007 pursuant to subsection 82(2) of the indian Act (the Act). We have reviewed the above-mentioned by-law and although it is coming into force we would like to offer the following comments for your consideration, Even though the by-law was not recommended for disallowance to the Minister, we comment upon many serious deficiencies with the Williams Lake Indian Band Trespass and Nuisance By-Law and believe that itis possible that this by-law, if challenged, would be declared invalid by the courts for the following reasons, ‘Section 3.6 provides that the owner of livestock referred to in section 3.5 commits an offence. This provision is inconsistent with paragraph 81(1)(p) of the ‘Act which provides that Band Councits may make by-laws for the removal and punishment of parsons trespassing upon the reserve or frequenting the reserve for prohibited purposes. It is also inconsistent with paragraph 81(1)(e) of the Act which provides that by-laws may be made for the protection against and prevention of trespass by cattle and other domestic animals, the establishment of pounds, the appointment of pound-keepers, the regulation of their duties and. the provision for fees and charges for their services. Canada VER-22-2007 B4:4681 FAX:8199970034 ID:MILLIGYS LAKE INDIAN PAGE:@02 R=9E%heR-22-2007 042468 Section 3.7 provides that “an owner of livestock referred to in section 3.5 shall be solely llable for any and ali damage, cost, loss or expense whether or not atising from or related to any claim, action, suit or other proceeding concerning trespass” and section 3.9 provides that the Council may take such measures that appears reasonable and necessary in order to remedy the trespass, all at the cost of the owner. While these provisions may raise a challenge regarding property rights, they constitute a form af penalty that is beyond the scope of paragraph 81(1)() of the Act (limited to monetary fines and imprisonment - and then only after there has been a conviction by a court) that guides all by-laws made under section 81. Section 3.9 of the by-law includes remedial action at the owner's expense. A court might consider the charge backs to be a fine and/or an exercise of clause (q) ancillary power, but if so characterized, a court would most likely limit the charge back to the maximum under (r) which is $1,000.00. Even if it was found that the powers prescribed under sections 3.7 and 3.9 did not violate para.81(1)(r) of the Act, they run counter to the powers of courts of competent jurisdiction to order injunctive reliet as prescribed under subsections 81(2) and (3) of the Act. By inference, Parliament did not intend for band council to provide such remedies. Accordingly, this penalty and remedies could be ultra vires and may not be enforceable. Even if itis in force, we strongly recommend that you amend the Williams Lake Indian Band Trespass and Nuisance By-Law in accordance with these comments. While these comments should not be treated as a legal opinion, we hope they will be useful to you. Please note that the coming into force of your by-law, pursuant to section 82 of the Indian Aci, is not an expression of opinion by the Minister or a ruling by the Department of Indian and Northern Affairs that the by-law is valid; only a court of law has such power. Please retain at least one original by-law for your records and provide your local law enforcement agency, judge or magistrate with 2 copy of these by-laws, In order to provide assurance to these agencies that this by-law has been properly ‘enacted according to the statutory requirements (in particular section 82 of the Act), it may be useful to provide them with a copy of this letter stating the coming into force date, along with a certified true copy of the by-law. The original by-law submitted to our office will be sent to you through the DIAND. regional office in order to produce certified true copies, as described in section 86 of the Act, These will be sent to you shortly. ofS Fex:6199970034 TO:HILLIANS LAKE INDIAN PAGE:OES ReINDIAN AFFAIRS Pace ad/os Finally, by-laws made under the Indian Act are ‘subject to the Statutory instruments Act. As such, no person may be convicted of an offence for contravening an unpublished by-law unless the Band Council proves that the by-law is exempted from publication in the Canada Gazette and that reasonable stops were taken to bring the by-law to the attention of persons who may be affected by it. An individual has the right to inspect and obtain copies of by-laws. Although not a requirement, we recommend that First Nations submit their by-laws to our office in draft form prior to enactment whenever possible. An initial review of the draft of a proposed by-law gives First Nations an opportunity to discuss it and also assists in avoiding any major difficulties prior to enactment. !Fyou require any further information, please contact France Courtois, By-law Advisor responsible for your file, at (418) 648-7559 or me at (818) 997-6450. sincerely, Mee = Manager By-Laws Advisory Services Unit Band Governance Directorate Lands and Trust Services ec: Katherine Blair, A/ Manager, Governance and Capacity Development Marg Shelly, Housing & Capital Director NeR-22-2007 04:47AN Fe: 8199970034 ID:HILLIANS LAKE INDIAN PAGE:004 R=35%