Written by Peter Jones and Tara McDonald
Introduction
Increasingly, First Nations are turning to alternate legal tools as a way of dealing with undesirable behaviour in their communities posed by inadequate policing, lack of resources, and jurisdictional gaps. One such tool is the use of banishment as a punishment to remove undesirable persons from reserve lands.
The term “banishment” can mean different things to different communities, based on that community’s traditions and culture, but at its core, it means evicting a person from reserve lands, either on a temporary or permanent basis. It has been a common practice in many Indigenous communities, some of which have imposed banishment as a punishment since time immemorial.[1] Banishment is also familiar to Canadian law. In the criminal context, it can be imposed as a condition to probation,[2] bail,[3] or as a term in peace bond[4] orders.
In the First Nations context, the authority for First Nations to impose a banishment order may be found under the by-law powers in section 81 of the Indian Act[5] or pursuant to Indigenous customary law.[6] For First Nations who have enacted a Land Code under the Framework Agreement on First Nations Land Management Act,[7] it is likely possible to do so as a Land Code law as well. It may also be possible to prove banishment as a s. 35 Aboriginal Right[8] or enact a banishment law under a Land Code.[9]
Despite its history, banishment remains relatively unexamined by the courts. Accordingly, legal uncertainties remain about the scope of the power to do so, and the parameters surrounding it. This blog post examines the state of the law on banishment and explores the various considerations First Nations communities should take into account when developing a banishment by-law or law.
Right to Reside on Reserve
The starting point for any discussion about removing individuals from reserve is the scope of the right to be present on reserve in the first place. Reserves are substantially different than other “public” places. Reserves are set apart for bands, not individual members (unless members hold a Certificate of Possession).[10]
Members’ right to use and benefit from reserve lands is a collective rather than an individual right[11] and is typically derived from Indigenous laws (“custom” or “customary law”). Non-members, on the other hand, cannot occupy or possess reserve lands except in accordance with the Indian Act.[12]
Legal Authority to Banish
Case law has considered banishment via band council resolution (“BCR”),[13] Indian Act by-laws,[14] and pursuant to band custom.[15] In one such case, Gamblin v Norway House Cree Nation [Gamblin] the Norway House Cree Nation issued a BCR banishing the applicants, Tron Gamblin and Angela Monias, from its reserve lands. The Federal Court held that on its own, a BCR is an insufficient basis for banishing an individual. [16] To withstand challenge, there must be an underlying law, such as a by-law or Indigenous custom, supporting the decision.
Given the Gamblin decision, Indian Act by-laws are likely the most defensible way to support a banishment decision. Under section 81 of the Indian Act, band councils may enact by-laws regulating “the residence of band members and other persons on reserve”,[17] the “removal and punishment of persons trespassing on the reserve or frequenting the reserve for prohibited purposes”,[18] disorderly conduct and nuisance,[19] and “the observance of law and order.”[20] By-laws enacted pursuant to these powers may provide sufficient legal authority to ground a banishment decision.
The residency power is the most frequently used legal basis to ground a banishment bylaw. It is also arguably the strongest basis to do so, as it may allow council to determine the circumstances for when residency will be revoked, establish the process for revocation, and authorize the enforcement of revocation.
The power to prohibit trespass is another tool that may support a banishment decision. A trespass by-law defines what conduct constitutes unlawful trespass on reserve,[21] stipulates when a person can be fined or removed from reserve, and authorizes enforcement of these rules. Trespass by-laws are different from residency by-laws because they typically apply to non-members. Members would normally not be trespassers on reserve since they likely have some right to be present on reserve. Trespass by-laws can stand on their own or be integrated into a residency by-law.
In addition to by-laws, Indigenous customary law is another potential avenue to ground a banishment decision. Customary laws continue as part of the laws of Canada unless specifically extinguished[22] and are increasingly being recognized by Canadian courts.[23] This said, at the time of writing, the courts have yet to expressly accept Indigenous customary law as the basis for band councils to banish individuals from reserve lands. The Federal Court left this possibility open in the recent case of George v Heiltsuk First Nation, but did not decide the issue.[24]
Legal and Practical Considerations
First Nations laws are subject to the same constitutional and administrative law limits as are other Canadian laws. As such, when developing a banishment by-laws or law it is important to consider the Canadian Charter of Rights and Freedoms [Charter], procedural fairness, and how by-laws will be enforced.
(1) Canadian Charter of Rights and Freedoms
Banishment by-laws can be challenged and struck down if they do not comply with the Charter. Laws inconsistent with the Canadian Constitution, which includes the Charter, are of no force and effect to the extent of the inconsistency.[25]
If not drafted carefully, banishment by-laws could potentially infringe the following Charter rights:
- The right to life, liberty, and security of the person (s. 7);[26]
- The presumption of innocence (s. 11(d));[27]
- The right to be free from double jeopardy (s. 11(h));[28] and
- The right to move and gain a livelihood in Canada (s. 6).
If a banishment by-law infringes an individual’s Charter rights, that person can apply to a court of competent jurisdiction to obtain such remedy as a court considers appropriate.[29] That said, an infringement cased by a banishment law or by-law may still be constitutional if it “can be demonstrably justified in a free and democratic society” under section 1 of the Charter.[30]
(2) Procedural Fairness
Procedural fairness means the duty to be fair. It is triggered when a public decision-maker exercises power that may affect the rights of an individual.[31] The exact duty of fairness varies with the circumstances, with a higher duty lying with decisions which have significant impacts on the individual.[32]
Without sufficient procedural fairness, a banishment decision may be set aside on judicial review.[33] As a general rule, banishment will attract a high degree of procedural fairness because of the significant impacts it will have on the individual subject to the order.[34] This may be especially true for members, who have a greater right to be on reserve and have significant personal and cultural ties to the community. Thus, banishment from their community would have a more significant impact on them.
In contrast, non-members may be afforded significantly less procedural fairness, since they often do not have a lawful right to be present on reserve in the first place. That is not universally true, however. Non-members may hold a lawful lease pursuant to subsection 28(2) or 58(3) of the Indian Act or may be the spouse or common-law partner of a member. In those cases, the level of procedural fairness a non-member is entitled to will likely be much higher.
Regardless of any particular case, in order to ensure sufficient procedural fairness and to buttress against any potential challenges to a banishment decision, a banishment law or by-law should contain adequate procedural safeguards, including, at a minimum, the following:
- The right to receive notice of the banishment proposed;
- The right to be heard, and to possibly present evidence;
- The right to be notified about the decision;
- The right to receive reasons in writing;
- The right to appeal; and
- Limitations on the scope of banishment, and an opportunity for reintegration into the community upon satisfaction of certain conditions.[35]
(3) Enforcement
A First Nation developing a banishment by-law or law should consider how the by-law will be enforced. The RCMP is sometimes hesitant to enforce banishment orders, particularly if there is no by-law in place to support the order or if they are concerned that the decision violates the Charter. This is another reason to ensure the by-law or law is procedurally fair and Charter compliant. Indigenous communities may also want to have early discussions with the RCMP regarding enforcement. Doing so may increase the likelihood that the RCMP will recognize the banishment by-law and assist when called upon to do so.
Key Questions to Consider
Each First Nations community differs in its culture, traditions, needs and priorities, and as such, the content of banishment by-laws or laws will necessarily vary. That said, when developing a banishment by-law, First Nations should consider the following key questions as a starting point:
- What type of conduct is worthy of banishment? Typically, banishment is reserved for serious offences and criminal convictions.
- How are proceedings initiated? Will Chief and Council initiate the process, or can community members also bring complaints?
- Who decides on the punishment? Will Chief and Council or a separate board or tribunal make the decision to banish individuals?
- How long is a person banished for, and can they return? Banishment by-laws often impose a time limit with a right to re-apply for residence after the time limit has expired. A time limit may be especially important for members, given their right to reside on reserve.
- Will the bylaw distinguish between members and non-members? Members are likely entitled to a greater degree of procedural fairness because they have a right to reside on reserve.
- Will the bylaw provide a right of appeal and if so, who will hear the appeal? A right of appeal is generally a good idea as it provides greater procedural fairness. The body that hears the appeal needs to be different than the initial decision-maker.
- Should banishment apply to youth? First Nations may not want to banish youth given the extreme nature of banishment and young person’s unique position. Furthermore, banishing youth may not be legally possible because, under section 18.1 of the Indian Act, a band member is entitled to reside on the reserve with their dependent children.
- Does your community have an unwritten custom of banishment? If so, integrating this custom into the by-law may strengthen its defensibility if challenged.
While there remains legal uncertainty about the scope and enforceability of banishment by-laws or laws, they remain a powerful legal tool for First Nations communities, both to assert their jurisdiction over who can be present on reserve, and to fill in gaps left by inadequate policing, resourcing, and jurisdictional uncertainties.
Woodward & Co. Lawyers LLP is experienced in drafting banishment by-laws and can advise your community on how to approach these questions. Contact us today to learn more about developing and enforcing your right to remove individuals from your reserve.
[1] R v Taylor, [1998] 2 CNLR 140 (SK CA) at para 35.
[2] See Criminal Code, RSC, 1985, c. C-46, s 732.1(3)(h) [Criminal Code]. This measure is rare and can only be imposed in exceptional circumstances: R v GN, 2019 NUCA 5 at para 17.
[3] R v S (NJ), 2012 ABQB 479 at para 24.
[4] R v Siemens, 2012 ABPC 116 at para 29.
[5] See Conseil des Atikamekw d’Opitciwan c Weizineau, 2018 QCCS 4170 at paras 9-10 where the Court appears to enforce a banishment decision under ss. 81(1)(c)-(d) of the Indian Act, RSC (1985), c I-5 [Indian Act].
[6] This has been at least implicitly recognized by Canadian courts. See Gamblin v Norway House Cree Nation Band, [2001] 2 CNLR 57 at para 51 [Gamblin].
[7] S.C. 2002, c 19, s 121.
[8] For a discussion on this see David Schulze, Banishment in Aboriginal Law: Rules, Rights, Practice and Limitations, 73 UNB LJ 169 at 188-193.
[9] See e.g., the preamble of the Madawaska Maliseet First Nation’s “Trespassing and Banishment Law” <https://partii-partiii.fng.ca/fng-gpn-ii-iii/pii/en/item/521269/index.do?q=%22land+code%22+and+%22banish%22>.
[10] See the definition of “band” and “reserve” in the Indian Act, s 2(1).
[11] Joe v Findlay, (1981) 122 DLR (3d) 377 (BCCA) at paras 7-9.
[12] Non-members can lawfully reside on a reserve via a permit, which is usually used for right of ways (see Indian Act, s 28(2)) or lease (see Indian Act, s 58(3)).
[14] Solomon v Garden River First Nation, 2019 FC 1505 at paras 7, 40 [Solomon].
[15] George v Heiltsuk First Nation, 2022 FC 1786 at paras 16, 62 [George].
[17] Indian Act, s 81(1)(p.1).
[21] Trespass is a direct, physical, and intentional intrusion on land. “Intentional” does not mean that the trespasser intended to do a wrongful act, simply that the intrusion must be a voluntary and affirmative action on the part of the trespasser: Peter Ballantyne Cree Nation v Canada (Attorney General), 2016 SKCA 124 at paras 131-132. See also R v Gingrich (1958), 122 CCC 279 (AB SC).
[22] Mitchell v Minister of National Revenue, 2001 SCC 33 at para 10.
[23] For a discussion on “custom” in the context of elections see Whalen v Fort McMurray No. 468 First Nation, 2019 FC 732 at para 32 and Pastion Dene Tha’ First Nation, 2018 FC 648 at para 8.
[24] George at paras 79-90. See also Gamblin at para 51.
[25] Constitution Act, 1982, s 52(1).
[26] In Saila v R, [1984] 1 CNLR 173 (NWT SC), the Court held that banishment was consistent with s. 7 of the Charter.
[27] This concern primarily arises where a by-law authorizes banishment prior to being criminally convicted.
[28] In R v Cliffe, 2022 BCCA 305 at paras 25-33 the Court commented that banishment might infringe an accused’s right against being punished twice for the same crime (i.e., being convicted and then being banished).
[29] Constitution Act, 1982, s 24(1).
[30] Charter, s 1; See also R v Oakes, [1986] 1 SCR 103.
[31] Cardinal v Kent Institution, [1985] 2 SCR 643 at para 14.
[32] Baker v Canada (Minister of Immigration), [1999] 2 SCR 817 at paras 21-28.
[33] See e.g., Solomon at paras 19, 34.
[34] See e.g., Edgar v Kitasoo Band Council, [2003] 2 CNLR 124 at para 30.