The northern Manitoba Norway House Cree Nation council passed a band council resolution adopting a no-tolerance attitude towards illegal drug and alcohol use on their territory, but the Federal Court shot them down the first time the council tried to enforce it.
Federal Court Justice Francis Muldoon ruled on Dec. 18 that the band did not have the authority to banish Tron Gamblin and his common-law spouse Angela Monias, a member of Cross Lake First Nation. Gamblin was banished from the reserve after he was charged - not convicted -with possession of marijuana in March 1999. Once he was banished, Monias was told to leave because she wasn't a band member. Gamblin later pleaded guilty to the charge and received a small fine and probation.
Ken Albert, special assistant to Norway House Chief Ron Evans, said council will now look at passing a band bylaw to allow for banishment for illegal activities on reserve.
"When chief and council want to deal with issues of bootlegging and drugs being brought into a reserve, it's difficult to take action. Something has to be done. What is there that can be done?" he queried.
The tone of the court decision indicates that banishment, a traditional form of punishment that is present in many, if not most, Indigenous cultures, will never be upheld by a Canadian court.
Michael Paluk, a legal aid lawyer with Winnipeg's Aboriginal Centre Law Office, represented Gamblin and Monias at the Federal Court. After the decision was handed down, he sent out a press release announcing the decision, saying many Native people are "BCR'd" off the reserve- told to leave by council-and they leave, even though band councils have now been proven not to have the legal authority to banish them.
"I think it's questionable whether or not a band council can actually banish a member from reserve lands," he said.
Albert said the chief and council feel their ability to govern their community as they see fit, using tools their people's leaders have used since the distant past, has been limited by federal law.
"That's what raises questions now. It's not only Norway House that has problems in this area. Most of the reserves, probably, have problems in this area. At least the leadership of Norway House tried to do something about it," Albert said. "We have very good leadership in the community; they're trying to do as best they can with problems that exist through these kind of areas. They're difficult to deal with."
But Paluk doesn't believe the issue is a self government issue. He believes it has more to do with protecting people from the tyranny of a government with unlimited power.
"People go around using the expression, 'I've been BCR'd from the reserve,'" said Paluk. "It happens here in Manitoba a lot. If the band council decides they don't want someone on the reserve for one reason or another, because they think they're unsavory, they pass a resolution and the person's told, 'You've been BCR'd and you have to leave.' People leave. They accept it."
At trial, Paluk attacked the process council used in expressing its no-tolerance policy.
"Our point was that a resolution of the council is just that. It's a vote taken at a meeting by the band council. They can vote on all sorts of resolutions. It's not any kind of legislation by any means. The Indian Act sets out that the council has some bylaw-making authority and there may be other law-making authority that the band council derives from other areas," he said.
He suggested council should have created a bylaw to support its policy, something that Sections 81 and 85.1 of the Indian Act allow. But he suggested the minister of Indian Affairs would not have been able to approve such a bylaw because it exceeds the penalties specified for band council bylaw infringements.
"With a bylaw they have to send it to the minister for approval and I would assume the minister would check it for compliance with other legislation, the Charter and that sort of thing. I don't think theminister would ever approve a bylaw with the kind of sanctions the band council wanted to impose," he said. "They included terminating people's income supports like social allowances. It seems to me there'd be a major conflict with other federal legislation."
Paluk based his strategy on the idea that the council must use the available Canadian law to enforce its policies.
"If they decide that this is a policy that they want to implement then they have to do it through whatever means are available to them. If in fact those means are available to them. They may or may not be," he said. "The judge, in his reasons, suggested that they try and write a bylaw. I know that the lawyer for the band council seems to think that that's some kind of vindication and in fact the judge called the policy objectives admirable. But he said they didn't go about it properly. That's all we're saying."
Instead, Gamblin and Monias were evicted from their home on the reserve.
"There's always been a question on the Indian Act. It prevents communities trying to move towards self government to deal with issues that exist in their areas. It's difficult, at times, to do anything when other people become involved," Albert said. "Something will be put in there. Something will come out of it. The leadership . . . they don't like doing these kinds of things, but something's got to be done. There's tremendous responsibilities on leaderships on reserves to address many needs, never mind the problems they have to deal with at the same time."