Band councils base their authority to do this on it being traditional practice (see Gamblin v. Norway House Cree Nation Band, 2000 CanLII 16761 (FC), http://canlii.ca/t/1j1qt ). To say the least, the law is unsettled in this area. If you search CanLii http://www.canlii.org/en/index.php for “banishment” you will come upon several cases that discuss the issue, but take care to differentiate those that deal with court-ordered probation terms (which are not part of this discussion) from straight up band council resolutions that banish Indians from their own reserves.
I am very concerned that this practice, while useful in removing bad people from reserves, misses the mark on a couple of important points. At the personal level, it permits individuals to be removed from their homes, banished from their communities, lose their jobs or reserve based financial support, lose their income tax exemption, and lose their protection against property seizure by non-Indians, based on their notoriety rather than through due process that has arisen out of a system based on natural justice. At the social policy level, it permits such disenfranchisement without right of law, it lays itself open for abuse of power (particularly given that elections on reserves tend to be veryextended-family biased), and it dumps the problem person into the lap of another jurisdiction.
Should Canadian First Nations be granted the power to banish their own members? If such a banishment power is granted to First Nations, should this power also be granted to all municipalities in Canada?
I am curious to see if at some point it does attain legal sanction simply because it has been going on for years and is generally accepted by Indians. How does one deal with the confilict of law issue – traditional aboriginal customs exercised by First Nations v. Canadian law?
I’m not quite clear on the relationship between the Canadian government and First Nations reservations. To what extent does the government typically intervene in the affairs of a reservation?
I know about that much about this whole field, but as I understand it, in the US model, reservations exercise tribal sovereignty, so that government intervention in tribal affairs is sharply limited. Under such a model, I think it would be pretty hard for the US government to prohibit tribes from doing such a thing, AFAIK.
A portion of the law that you linked to on tribal powers includes such powers that include “the observance of law and order” and “the prevention of disorderly conduct and nuisances,” so I can see the case that if they see banishment as a response to crimes or nuisances, and there is no law specifically prohibiting banishment… seems to this layman that the tribe may have the law on their side.
It depends on the relationship between the FNs and the government of Canada. If the FNs are offered a degree of autonomy, then the amount of that autonomy needs to be agreed upon. One might argue that they can make any laws they want as long as they don’t violate civil rights. That would be my take. But if there is some agreement already in place, then that’s another matter.
No, and that does not follow from allowing the FNs to do so.
This was my first thought too. My second thought had to do with Star Chambers and sub rosa in-camera gatherings where someone’s fate is decided without them being able to answer to it, nor appeal it. The potential for abuse is there, certainly.
The problems of drug and alcohol additions on reserves is very real, and something needs to be done, but I’m unsure if this approach cures the problem, or simply makes it some other community’s responsibility.
Wouldn’t such a power violate s. 6 of the Charter?
s.6 on the face of it states that Canadian citizens have the right to live in any province they want. It does not say they have the right to live in any particular municipality.
Having said that, municipalities derive their powers from the provinces; if they by some twist of law had the power to “banish” people, the province could take it away.
Exactly. Municipalities are constituted under provincial power, as granted by s. 92(8) of the Constitution. Ultimately, provinces have the power in municipal affairs.
Section 6 says that any Canadian citizen has the right to move to and take up residence in any province–not necessarily any municipality; but it would seem to me that a good case could be made that a province (and by extension, a municipality constituted under the s. 92(8) power granted to a province) cannot bar someone from living wherever they wish in Canada. Thus, it follows that municipalities constituted under provincial law cannot “exile” a resident who is not a citizen.
This does not apply to First Nations members necessarily, but it likely does apply to the rest of us citizens.
If this went to court I am confident the Supreme Court would decide to make it illegal and would find a reason, whatever the Constitution says; it wouldn’t be the first time. The notion of a city or town banning people is just so repugnant that SOME law or Constitutional section would be shoehorned into the case.
The courts have already decided that t s.7, which grants the right to liberty, should be fairly broadly interpreted beyind just not being imprisoned, so that might be used to strike down such a law.
In any event, the province would squish it like a bug.
As to whether the Constitution would allow for a challenge to a reserve doing this, it’s an interesting argument. s.25 of the Charter says:
[QUOTE=Constitution Act 1982]
25. The guarantee in this Charter of certain rights and freedoms shall not be construed as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
[/QUOTE]
It doesn’t say the Charter doesn’t abrogate any powers.
Hmm. A situation could arise where, say, Nova Scotia could come out and pass a law saying that persons of primarily Asian ancestry not already a provincial resident may only enter Cape Breton Island, and say that since CBI is part of NS, then they are not forbidding anyone from establishing residency. I would think that such an act would be so offensive that the courts would find SOME justification somewhere in the Charter or elsewhere to knock it down.
This apparently used to happen in the US with so called “sundown towns” where persons of undesirable ethnicity were required to leave the town before nightfall, and some areas that had restrictive covenants that ran with the land. For example, at least one neighborhood in Washington, DC had covenants attached to at least some of the residential properties that stated that the land could not be sold to an Irish person. Of course, of those covenants that still exist on paper, they are not enforceable.
