CALGARY, AB: The Justice Centre for Constitutional Freedoms announces that lawyers funded by the Justice Centre have sent legal warning letters to four Indigenous governments in Alberta and Manitoba calling on them to amend bylaws that authorize the mandatory five-year banishment of community members. The warning letters followed a successful legal challenge that resulted in the Wabauskang First Nation rescinding its banishment of former Chief and band councillor Doug Riffel, who had been barred from his community without prior notice or an opportunity to be heard.
The four new warning letters argue that these bylaws exceed the authority delegated under the Indian Act, deny affected individuals basic procedural fairness, and violate multiple protections guaranteed by the Canadian Charter of Rights and Freedoms.
Roseau River Anishinabe First Nation, located about 80 kilometres south of Winnipeg, is the subject of a legal warning letter concerning By-Law No. 002: A By-Law to Prohibit Illegal Drugs. The letter argues that the bylaw’s mandatory minimum five-year banishment provision may constitute cruel and unusual punishment because it requires 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 about 430 kilometres northwest of Grande Prairie, Alberta, received a legal 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. The demand letter argues that Parliament has not authorized Indigenous governments to impose mandatory banishment in this manner under the Indian Act. It further states, “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 about 270 kilometres northeast of Winnipeg, received a legal warning letter concerning Bylaw No. 1-2022: Bylaw Relating to Intoxicants. The letter acknowledges 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. It argues that individuals facing banishment must receive notice and a meaningful opportunity to be heard before such a serious sanction is imposed.
Fisher River Cree Nation, located about 180 kilometres north of Winnipeg, received a legal warning letter concerning By-Law No. 2004-01: A By-Law to Prohibit Illegal Drugs. The legal letter argues that the bylaw’s banishment provisions exceed the powers delegated under the Indian Act, deny affected individuals procedural fairness, and impose constitutionally disproportionate penalties through mandatory minimum five-year banishment orders.
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.”
The Justice Centre is Canada’s leading civil liberties organization defending Charter rights and freedoms in the courts of law and in the court of public opinion. Founded in 2010, the Justice Centre funds lawyers across Canada, relies entirely on voluntary donations to carry out its mission, and issues official tax receipts to donors.
