Mandatory banishment raised constitutional concerns
Lawyers funded by the Justice Centre sent legal warning letters to four Indigenous governments after concluding that several bylaws authorizing mandatory five-year banishment exceeded the authority delegated under the Indian Act, denied affected individuals procedural fairness, and violated protections guaranteed by the Canadian Charter of Rights and Freedoms.
Roseau River Anishinabe First Nation, located approximately 80 kilometres south of Winnipeg, received a warning letter concerning By-Law No. 002: A By-Law to Prohibit Illegal Drugs. Lawyers argued that the bylaw’s mandatory minimum five-year banishment provision could constitute cruel and unusual punishment because it required the same severe penalty regardless of the seriousness of the misconduct, making it capable of imposing a grossly disproportionate punishment.
Little Red River Cree Nation, located approximately 430 kilometres northwest of Grande Prairie, Alberta, received a warning letter concerning By-Law No. 2020-002: A By-Law to Prohibit the Sale of Illegal Drugs, Bootleg of Alcohol, and Banishment from Reserve Lands. Lawyers argued that Parliament had not authorized Indigenous governments to impose mandatory banishment in this manner under the Indian Act. The letter further stated, “the By-Law does not provide any prior notice or a chance to be heard prior to Council making an initial banishment or removal decision.”
Little Grand Rapids First Nation, located approximately 270 kilometres northeast of Winnipeg, received a warning letter concerning Bylaw No. 1-2022: Bylaw Relating to Intoxicants. The letter acknowledged the community’s authority to regulate intoxicants on reserve lands while explaining that those powers must still be exercised consistently with the Charter and longstanding principles of procedural fairness. Lawyers argued that individuals facing banishment must receive notice and a meaningful opportunity to be heard before such a serious sanction was imposed.
Fisher River Cree Nation, located approximately 180 kilometres north of Winnipeg, received a warning letter concerning By-Law No. 2004-01: A By-Law to Prohibit Illegal Drugs. Lawyers argued that the bylaw’s banishment provisions exceeded the powers delegated under the Indian Act, denied affected individuals procedural fairness, and imposed constitutionally disproportionate penalties through mandatory minimum five-year banishment orders.
Lawyers called for Indigenous governments to amend their bylaws
Constitutional lawyer Marty Moore said, “Banishment is a serious and extreme measure, justified only in rare cases. Members of these Indigenous communities, however, are subject to banishment from their Treaty lands for drug or alcohol related infractions for at least five years with minimal procedural safeguards. These laws violate the Charter rights of members and should be amended immediately.”
He continued, “Rescinding illegal banishment after the fact when facing legal action is not good enough: First Nations need to respect their members’ legal and constitutional rights before imposing the extreme measure of banning members from their homes, families and communities on their treaty lands.”
