Before you say 'hands off', a word about garnishment

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Pro Bono

Dear Tuma:

I am a status Indian working for a Native political organization. Our head office is located on reserve, but we also have a branch off reserve where I work. Can my wages be garnished by debtors?

Working for the Credit Bureau

Dear Working:

I am assuming that you are being paid from the head office, which is located on reserve. Section 89 of the Indian Act does provide protection against garnishment of your wages by non-Native creditors. Personal income of an Indian is deemed to be personal property and may not be garnished by creditors. Laws regarding garnishment only apply to off-reserve property.

Now there are other considerations to think about before you go tell your creditors they cannot touch your money.

First is that section 89 does not apply between First Nation folks. So, if you owe another First Nation person, that person can garnish your wages. This also applies to bands. A band can sue and garnish the wages of its members.

The other consideration is that you can still be sued and a judgment recorded with the Sheriff. The creditor may not be able to garnish your wages on reserve, but anything off reserve is up for grabs. If you have a bank account off reserve they may be able to seize whatever is in the account. Plus any judgments may be recorded on your credit record, thus making it harder to borrow money in the future.

Dear Tuma:

I heard that retailers on reserve now have to pay the HST (note: the HST is the harmonized sales tax in Atlantic Canada-in other provinces it is the GST, plus any provincial sales taxes) because of a new court case. Is this true?

Afraid of the Tax Man

Dear Afraid:

The court case that you are referring to is called R v. Pictou et al. The appellants were a group of Mi'kmaq retailers who operated gas and convenience retail stores. The store owners argued that they were not obliged to collect the GST from non-Native customers because of Mi'kmaq treaties. They lost at the lower court and appealed to the Federal court of appeal.

The appellants argued four points: a) the trade clause in the treaties preventing the government from obliging the Mi'kmaq to collect and remit the GST, b) that Parliament cannot pass laws to oblige Mi'kmaq to collect the tax, c) that the GST was a tax imposed on the retailers and d) that section 89 of the Indian Act prevented the enforcement of collecting un-remitted GST. They lost on the first three and, on the last, the court said that it was premature because this was not a collection action.

What does this mean? It means that this case, along with similar cases in Ontario and Saskatchewan, will likely end up at the Supreme Court of Canada. Meanwhile, retailers should keep accurate records of sales to non-Natives and be prepared to remit the HST to Canadian Customs and Revenue Agency.

Otherwise they may be looking at being assessed huge tax bills (the retailers in this case were assessed taxes on $26,000 to $159,000 sales to non-Natives per month), plus penalties.

Dear Tuma:

Can a band kick someone out of a band-owned house?

Homeless

Dear Homeless:

The band has the authority under section 81 (p.1) of the Indian Act to pass a bylaw regulating "the residence of band members and other persons on the reserve." This bylaw is enforceable by the tribal police, town police or the RCMP. The fine can be up to a $1,000 or 30 days in jail or both and the provincial court has jurisdiction to hear the case.

The other way is to have a trespass charge laid against an individual under section 20 of the Indian Act. A First Nation person does not have legal possession of reserve land unless a certificate of possession has been issued by the band, or a certificate of occupation. Many bands do not, as a matter of policy, issue CPs and rely on allocations by the chief and council. In any event, the consent of the band council is required in order to be in legal possession of a house or lands on a reserve.

This column is not intende to provide legal analysis or opinion of your situation. Rather this column is meant to stimulate discussion and create awareness of various situations in which you should contact a lawyer. If you have a question you would like to see addressed in this column, please email me at: tyoung@patttersonpalmer.ca. Tuma Young is an associate with the Truro office of the law firm of Patterson Palmer-www.pattersonpalmer.ca