Trespass Law

PREAMBLE

WHEREAS Malahat Nation Chief and Council has determined that a law is necessary to protect Malahat Nation Land and its Members and to remove trespassers from Malahat Nation Land. 

WHEREAS Malahat Nation has assumed control of its lands by adopting the Malahat Nation Land Code pursuant to the Framework Agreement on First Nation Land Management, which affirms the authority of Malahat Nation to make laws to provide for community health and safety (Sec 11.2(j)).

WHEREAS Malahat Nation has an inherent right of self-government which emanates from our people, culture, language, and aboriginal rights including aboriginal title, which was and is central to the customs, practices and traditions of the distinctive culture of our First Nation prior to contact with the Europeans and which is recognized and affirmed by Section 35 of the Constitution Act, 1982; 

AND WHEREAS Malahat Chief and Council adhere to the law-making procedures set out in Section 13 of the Malahat Nation Land Code (2014).

Now therefore, Malahat Nation Council enacts the following law:

PART 1 - TITLE AND PURPOSE

1.1 Title

This Law may be cited as the “MN Trespass Law 2022” (No.XXX)

1.2 Purpose

The purpose of this law is to protect the Malahat community.

1.3 Definitions

In this law:

“Authorized Person” means a person authorized by an Occupier of Premises (as defined in this law) to exercise a power or perform a duty of the Occupier under this Law. 

“Community” means the members living within the Malahat Nation reserve lands.

“Community Facilities” means any building owned by Malahat Nation

“Community Land” has the meaning assigned in the land code. 

“Council” means the Chief and Council of Malahat Nation, which is elected pursuant to the Malahat Nation Election Code. 

“Land Code” means the Malahat Nation Land Code adopted by MN in accordance with the First Nation Land Management Act (Canada) and may be supplemented or amended. 

“MN” means Malahat Nation, recognized under the Indian Act, as represented by Council, or any successor to such band pursuant to a federal statute or otherwise. 

“Malahat Nation Member” means a person whose name appears on the Malahat Nation Indian band membership list.

“Occupier" in relation to Premises, means the following:

(a) a Person entitled to maintain an action for trespass in respect of those Premises; or

(b) a Person lawfully entitled to possession of those Premises; or

(c) Council in relation to any Community Land or Premises on Community Land; or

(d) in any case, a Person who has

(i) responsibility for and control over the conditions of the Premises or the activities carried out on or in the Premises; or

(ii) control over persons allowed to enter the premises.

“Peace Officer” means (a) RCMP Officers; and (b) any other person charged by Canada or British Columbia with the duty to preserve and maintain the public peace in accordance with their laws. 

“Person” includes a partnership, syndicate, association, corporation, society and the personal or other legal representatives of a Person

“Posted Land” includes land that is:

(a) surrounded by a lawful fence;

(b) surrounded by a natural boundary;

(c) surrounded by a lawful fence and a natural boundary; or

(d) a garden, field or other MN Land that is under cultivation, including a lawn, orchard, vineyard and premises on which trees have been planted and woodlots on MN Land that are used primarily for agricultural purposes; or

(e) posted, in accordance with section 5.1, with signs prohibiting trespass.

"Premises" means

(a)  MN Land; and

(b) any thing on MN Land including:

i. buildings and other permanent structures;

ii. a vehicle, except while in operation;

iii. a trailer or a portable structure designed or used as a residence, for shelter or to house a business, and

iv. water;

"Private Land" means MN Land that is not Community Land and land in which a Member or Members or any non-member has an interest pursuant to or recognized by the Land Code (and any subsequent amendments) and includes business premises.

"Resolution" means a resolution of Council enacted under the Land Code or the Indian Act or other law. “Reserve” means all lands comprising IR 11 of Malahat Nation.

“Tenant” means a person listed as a Tenant on a Malahat Nation Tenancy Agreement.

“Unauthorized Person” means a person who meets none of the criteria in section 2.2 ofor this Law and therefore3.1, is not alloweda tomember, benor onan Reserve. employee, nor engaged in an action under an agreement with the Malahat Nation Administration or a Malahat Nation Business.

PART 2 - TRESPASS PROHIBITED

2.1 Subject to section 3, a Person who does any of the following commits an offense:

(a) enters Premises that are Posted Land;

(b) enters Premises after the Person has had notice from an Occupier of the Premises or an Authorized Person that the entry is prohibited;

(c) engages in activity on or in Premises after the Person has had notice from an Occupier of the Premises or an Authorized Person that the activity is prohibited.

2.2 A Person, other than an Occupier the onus of proof of which rests on the Occupier, found on or in Premises that are Posted Land is presumed to be on or in the Premises without the consent of an Occupier of the Premises or an Authorized Person.

2.3 Subject to section 4, a Person who has been directed, either orally or in writing, by an Occupier of Premises or an Authorized Person to:

(a) leave the Premises, or

(b) stop engaging in an activity on or in the Premises,

commits an offense if the Person:

(a) does not leave the Premises or stop the activity, as applicable, as soon as practicable after receiving the direction, or

(b) re-enters the Premises or resumes the activity on or in the Premises, as applicable.

PART 3 - DEFENSES TO TRESPASS CHARGE

 3.1 A Person may not be convicted of an offense under section 3 if the Person’s action or inaction, as applicable to the offense was with

(a) the consent of an Occupier of the Premises or an Authorized Person, including implicit consent by virtue of agreements such as an employment or daycare contracts, or

(b) other lawful authority pursuant to the Land Code or otherwise.

3.2       A MN Member or a person ordinarily resident on reserve may not be guilty of trespass under this law. 

PART 4 - NOTICE

4.1 For the purposes of paragraph (e) of the definition of Posted Land in section 1, signs must be posted so that, in daylight and under normal weather conditions, from the approach to each ordinary point of access to the Posted Land,

(a) a sign is clearly visible;

(b) if the sign contains writing, the writing is clearly legible; and

(c) if the sign uses graphic representation, the graphic representation is clearly visible.

4.2 For the purposes of section 2.1 (b) or (c), notice may be given,

(a) orally or in writing;

(b) by means of signs posted at or near an ordinary point of access to the Premises so that in daylight under normal weather conditions, from the approach to the ordinary point of access, the sign satisfies the requirements of subsection 4.1; and

(c) by Resolution duly posted in a public area of the MN administration building and made available free of charge at the administrative offices of MN.

4.3 A sign, posted in accordance with subsection 4.2(b) and naming an activity or showing a graphic representation of an activity is sufficient for the purpose of giving notice that the activity is permitted.

4.4 A sign, posted in accordance with subsection 5.2(b) naming an activity with an oblique line drawn through the name or showing a graphic representation of an activity with an oblique line drawn through the representation is sufficient for the purpose of giving notice that the activity is prohibited.

4.5 In a prosecution for an offense under section 2.1, proof that a sign that complies with subsection 4.1 or 4.2(b), as applicable, was posted at the ordinary point of access used by the defendant to enter the Premises is sufficient for the purpose of establishing, as applicable, that

(a) the Premises are Posted Land; or

(b) notice was given for the purpose of 2.1(b) or (c).

4.6 Notice given under this section may relate to all or a part of the Premises and different notices may be given or posted in relation to different parts of the Premises.

PART 5 - OFFENSE TO REMOVE, ALTER OR DEFACE POSTED SIGNS

5.1 A person, other than an Occupier or Authorized Person, must not remove, alter or deface signs posted for the purpose of section 5.1 or 5.2(b).

5.2 A person who contravenes subsection 5.1 commits an offense.

PART 6 - TRESPASSER MUST GIVE NAME AND ADDRESS

6.1 On the demand of an Occupier of Premises, or of an Authorized Person, who has reasonable grounds to believe that a person is on or in the Premises, or was on or in the Premises, in contravention of section 2.1 or 2.3, the Person must provide the Person’s correct name and address to the Occupier or Authorized Person.

6.2 A Person who contravenes subsection 6.1 commits an offense.

6.3 A Person who contravenes subsection 6.1 and remains on or in the Premises commits an offense.

PART 7 - OFFENSES

7.1 A person commits an offense if the person does any of the following:

(a) Enters Malahat Nation Land withoutwhen permission

(b) Enters premises without occupier’s permission; or

(c) Engages in an activity on or in a premise after the personnotice has hadbeen notice from the occupier of the premisesprovided that the activityaccess is prohibited.prohibited

PART 8 - PENALTIES

8.1 Any Peace Officer may order any person to leave Malahat Lands who enters Malahat lands for a prohibited purpose. 

8.2 Where a person who has been ordered to leave Malahat Nation lands fails or refuses to do so, the peace officer may take such measures as may be necessary to remove that person from Malahat Nation land.

8.3 A Person who violates any provision of this law commits an offense and is liable on summary conviction to a fine not exceeding $5,000.00 or six months in jail.

PART 9 - APPLICATION OF LAW

9.1 Offenses created under this law constitute offenses punishable on summary conviction for the purposes of section 22(1) of the First Nation Land Management Act (S.C. 1999, c. 24) as amended or replaced, the enforcement of which may be prosecuted pursuant to Provincial and/or Federal Law. 

9.2 Where any federal Act or regulation or provincial Act or regulation or any other MN Law may apply to any matter covered by this Law, compliance with this Law must not relieve the person from also complying with the provisions of the other applicable Act, regulation or law.

9.3 If any section of this Law is for any reason held invalid by a decision of a court of competent jurisdiction, the invalid section or subsection must be severed from this Law in such a way as to minimize the effect of the severance on the remainder of the Law.

9.4 The headings given to the sections and paragraphs in this Law are for convenience of reference only, and do not form part of this Law and must not be used in the interpretation of this Law.

PART 10 - IMMUNITY

10.1 No action for damages lies or may be instituted against present or past Council, or employees, servants or agents of either MN or Council:

(a) for anything said or done or omitted to be said or done by that person in the performance or intended performance of the person’s duty or the exercise of the person’s authority; or

(b) for any alleged neglect or default in the performance or intended performance of the person’s duty or the exercise of the person’s authority.

10.2 Section 10.1 does not provide a defense if:

(a) Council, employees, servants or agents of either MN or Council have, in relation to the conduct that is the subject matter of the action, been guilty of dishonesty, gross negligence or malicious or willful misconduct; or

(b) the cause of action is libel or slander.

10.3 Council, employees, servants or agents of MN or Council are not liable for any damages or other loss, including economic loss, sustained by any person, or to the property of any person, as a result of neglect or failure, for any reason, to discover or detect any contravention of this Law or any other MN Law, or from the neglect or failure, for any reason or in any manner, to enforce this Law or any other MN Law.

10.4 All actions against MN for the unlawful doing of anything that:

(a) is purported to have been done by MN under the powers conferred by this law or any MN law; and

(b) might have been lawfully done by MN if acting in the manner established by law,

must be commenced within six (6) months after the cause of action first arose, or within a further period designated by Council in a particular case, but not afterwards.

10.5 MN is in no case liable for damages unless notice in writing, setting out the time, place and manner in which the damage has been sustained, is delivered to MN, within two (2) months from the date on which the damage was sustained.

PART 11 - POWER TO MAKE REGULATIONS CONCERNING COMMUNITY LANDS

11.1 Council may, by Resolution and posted in accordance with subsection 4.2(c),

(a) set out the rules and regulations for the use of Community Land and Community Facilities, including arenas, community halls, recreational facilities, pools, baseball and soccer fields, schools, health clinics and similar premises,

(b) regulate the hours or seasons in which Premises located on Community Land may be used for specific purposes,

(c) impose limits on the activities to be engaged in on Community Lands,

(d) impose a requirement for a permit to engage in such activities or purposes, and

(e) prohibit entry or activity on Community Land or Community Facilities as it deems appropriate.

PART 12 - CIVIL ACTION FOR TRESPASS PRESERVED

12.1 Subject to section 11, nothing in this Law extinguishes the right of a person, including MN, to bring a civil action for damages arising out of a trespass on any premises on MN Land, and all civil remedies for trespass are preserved.

PART 13 - AMENDMENT

13.1 This law may be amended pursuant to section 13 of Malahat Nation Land Code.