"Six Nations Band Council reawakens residency permit bylaw to allow non-band members to live at Six Nations"

Six Nations Band Council is rushing to revise its residency by-law to include its own Matrimonial Real Property (MRP) laws before, it fears, the federal government imposes its MRP on Six Nations.

"The MRP law coming down from the federal government has a statement in there that if a non-native is living here and they get divorced for some reason, that (non-native) person gets to stay here," said Councillor Roger Jonathan at a corporate and emergency services committee meeting last week.

Senior Administrative Officer (SAO) Dayle Bomberry said "What we're trying to do is control that and say, okay, you can stay here, but, these are the conditions that you stay under."

Bomberry said the goal is to marry the current residency by-law with Six Nations' MRP laws so they work in conjunction.

"The purpose of the MRP law is to protect the land," he said.

"If we don't do it, the feds are going to apply their MRP law on us," said Jonathan.

Six Nations' current residency by-law allows for only registered band members to live on the reserve, but Canada's proposed Bill C-8 (now called Bill S-2) on MRP says only one spouse must be a band member and gives the non-native partner the right to stay in the matrimonial home on the reserve after a divorce or separation. Bill S-2 passed first reading in parliament last December. It has yet to pass second reading.

Band Council has hired consultants to re-draft the residency by-law to include an MRP law.

"The committee has asked its policy analyst Tim Brubacher to work on redrafting the by-law, with consultants, and to come back to general council with proposed revisions.

Councillor Jonathan said they should look at the bylaw that was turned down in 2004.

"It's got a lot of relevant information; it's got a lot of stuff that's not relevant today either, so we've got to take a look at this document," he said.

District Three Councillor Ross Johnson said: "This permit system might be a really good system."

Brubacher said: "The residency permit by-law was meant to go hand-in-hand with the residency by-law. It lays out how one goes about getting a permit." He said council had three options: only band members can live here, anybody can live here, or somewhere in between, where a person can live here 'somehow.'

"I think the residency by-law that exists right now can't stand. It certainly won't once the federal government's MRP law comes into place," Brubacher said.

He said if council decided it only wanted to allow band members to live at Six Nations, there would be some enforcement challenges with that.

"Do you want to devise some sort of permit system?" he asked. "Do you want to devise your own membership code? That's another option, too. We can't prepare anything until we have that direction (from council)."

Brubacher said if band council goes ahead with the bylaw they will seek community input, but he said under the Indian Act, it doesn't have to.

"Under the Indian Act, residency by-laws fall under section 81. By-laws made under this section do not require a community vote," he said.

He told Turtle Island News, "However, a referendum is certainly an excellent method of gauging community support. Please rest assured that when council has a discussion on how, or whether, they would like to proceed with an updated bylaw we will ensure that a community vote is included as an option," he said.

However AANAC spokesmen confirmed any bylaw passed by a band council has to have ministerial approval before it becomes "law".

AANAC communications officer Michelle Perron cited the Indian Act.

"In order for a First Nation by-law to come into effect a number of steps must be followed and completed. First, the by-law must be passed by the majority of band councillors present at a duly convened meeting.

"Second, the First Nation is required to submit the proposed by-law to the Minister of Aboriginal Affairs Canada. This must be done in accordance with section 82 of the Indian Act, stating a by-law enacted pursuant to section 81 of the Indian Act, must be mailed to the department within four days of its enactment.

"Finally, the Minister reviews the First Nation bylaw and it is during this step that the Minister can use his discretionary power to disallow a proposed by-law. The by-law then comes into force 40 days after being mailed to the Minister, unless he uses his discretionary power.

A by-law must be forwarded to the Minister within four days of its enactment or else it is null and void.

If a by-law is mailed to the Minister within the four days of its enactment, and ministerial discretion to disallow the by-law is not invoked, it will automatically come into force 40 days following its postage date."

SAO Dayle Bomberry said the Six Nations MRP law would have provisions for non-native residency in the event of a break-up but would not allow ownership, whereas the federal MRP law would allow non-natives ownership of matrimonial property.

Six Nations Band Council proposed changes to the residency bylaw in 2004 that would bring in a permit system and allow non-band members to live at Six Nations was overwhelmingly rejected.

Only 90 people voted in favour and 688 voted against the permit bylaw.

A total of 778 people cast ballots in the residency vote.

When the results were announced, people in the crowd clapped and jumped up in celebration, hugging each other shouting "we won. We saved the reserve."

Indian and Northern Affairs Canada (now Aboriginal And Northern Affairs Canada) spokesman said at the time any First Nation that implemented a residency bylaw that allowed non-natives to live in their community are financially responsible for any additional costs associated with those non-band member residents.

The manager of INAC's financial arrangements in Ontario said those costs would have to come from the band's own source revenues or through a taxation scheme.

AANAC only provides funding for those registered on band lists.

He said the First Nation would have to charge user fees or taxes if non-members move onto the reserve.

In the past elected Chief Bill Montour has speculated as many as 3,000 non-band members may be living at Six Nations.