Banishment in Aboriginal Law: Rules, Rights, Practice And Limitations.

• Author: Schulze, David

1. Introduction

It is not unusual for First Nations to assert the power to banish members and resident non-members from their reserves. News reports regularly discuss communities which take such initiatives, (1) but the form which banishment takes varies, as do the grounds. Subject to the exceptions discussed below, members and other residents have rarely challenged banishment in court. Banishment is thus a widespread phenomenon whose legality has largely gone unexamined. Analyzing the possible basis for such a power and the limits imposed on it draws on almost every area of Canadian law: criminal law, administrative law, human rights, the Charter, Aboriginal rights and international law.

It should be noted that support for banishment is far from unanimous in Aboriginal communities. The former Crown prosecutor Harold Johnson, who is also a member of the Montreal Lake Cree Nation in Saskatchewan, has eloquently expressed his view that banishment is punitive in nature and therefore unlikely to produce results because it does not promote healing among community members:

First Nations leadership, needing to do something in the face of a crisis, have sometimes turned to banishment of those selling drugs in our communities. The problem with banishing a drug dealer, or locking them up, is that as soon as they are removed from the community, someone takes their place. We do not have a drug dealer problem. We have a substance use problem. The fundamental reason community members demand substances is to self-medicate their trauma. As First Nations people we have a lot of trauma to heal from. Residential schools, the Sixties Scoop, loss of traditional lifestyles, the over-incarceration of our people and the resultant ongoing intergenerational violence all add to the trauma load. (2) It is therefore important to point out that this article is about the legality of banishment, not its advisability or effectiveness, which are questions that Aboriginal communities can best answer themselves.

In addition, the legality of banishment that this article addresses refers to Euro-Canadian law, not to the criteria of any Indigenous legal order that applies of its own force. This limitation has two reasons, the first of which is methodological: the dozens of distinct Aboriginal nations in Canada have varying legal traditions, each of which would require its own analysis. The second reason is practical: to the extent that an Aboriginal nation or community's decision to impose banishment on a member is accepted by that member, the legality of his or her banishment is not an issue. However, when a banishment is challenged in court, the legal issues surveyed below are those most likely to arise.

2. The practice

In many First Nations, (3) band councils impose banishment on members or residents engaged in drug trafficking or violent behaviour and is often imposed on those who refuse treatment for addiction. (4) For instance, the Tsawout First Nation north of Victoria, British Columbia, banned five individuals from Tsawout lands for a period of two years in 2009 and required that:

Before they can return they must demonstrate sobriety, drug free and have successfully completed counselling and anger management treatment. The RCMP have been alerted to this situation and they are willing to pick up and escort these people out of the Community upon receiving a telephone request from [members]. (5) This is similar to a recent case in a Nisga'a community in British Columbia. After a resident who was a member of another nation had been convicted on charges including assaulting his Nisga'a wife in front of an elementary school and assaulting a police officer, (6) the village government advised the probation officer at his correctional facility that he was banished until he had fulfilled the following requirements:

a) He enters a treatment centre to address is challenges with addictions;

b) He enters a treatment program, for anger and violence with a weapon; and

c) He prepares himself for a "retribution feast" [omitted for publication] to his partner's family, the staff members involved, and the children impacted by his actions. (7)

The controversial nature of such decisions is revealed by the fact that subsequently, a new chief in the same Nisga'a village commenced an inquiry into the banishment, which had apparently not been sanctioned by the Council. Others in the community expressed "concerns about expelling troubled citizens from the community rather than reaching out and helping them deal with the hardships they may be experiencing." (8) For some offenders, the consequences of banishment are real: the executive director of a halfway house in Vancouver for Aboriginal men released from prison told a reporter in 2016 that many of the sex offenders residing at the facility were banned by their communities from returning home, even after they had finished serving parole. (9)

On the other hand, at the Grand Rapid First Nation in Manitoba, an administrator admitted in 2006 that some "just sneak back onto the reserve." (10) Similarly, a recent case reveals that a resident of an Ontario First Nation simply returned after a year to the reserve from which he had been banished, though its social assistance administrator subsequently refused to pay him any benefits. (11) In addition, while the stereotype of a reserve is a remote community that is difficult to reach, many reserves are actually in urban or semi-urban locations where banishment could leave individuals residing only a few blocks or a few kilometers from where they previously lived. For instance, in 2010, a non-member was banished from the Squamish Nation reserves in North Vancouver and West Vancouver, where his mother and girlfriend resided, but continued to live on the street in Vancouver. (12)

Banishment is also used as a political measure. Thus, the Council of the Gull Bay First Nation, in north-western Ontario, banned two off-reserve members from attending the community's powwow on reserve, allegedly because of a petition they wanted to circulate concerning health services. (13) More recently, Rainy River First Nation in northwestern Ontario informed a non-member who lived in the community with a member who was her common-law husband that her "continued attacks against our Rainy River First Nation Community Care Program will no longer be tolerated and [will] result in the issuance of a Band Council Resolution authorizing your immediate removal from our properties and lands of Rainy River First Nation." (14)

The record in the United States indicates federally-recognized tribes impose "disenrollment" or loss of membership-with resulting banishment from the reservation-more often for political reasons than for community protection:

In a few cases, especially those centered around criminal activity, it appears that tribes have reluctantly determined that disenrollment is one mechanism they may sometimes have to employ in order to maintain community stability and they have carefully constructed clear guidelines and procedures to carry out this most difficult process. In a majority of disenrollment cases, however, some tribal officials are, without any concern for human rights, tribal traditions or due process, arbitrarily and capriciously disenrolling tribal members as a means to solidify their own economic and political bases and to winnow out opposition families who disapprove of the direction the tribal leadership is headed. (15) 3. Banishment as a sentencing measure

a. Historically

Banishment exists in Canadian criminal law as a sentencing measure, but the courts are reluctant to recognize it, let alone impose it. A judge of the Provincial Court in Newfoundland wrote as follows before prohibiting an offender from entering the municipality where his victim resided:

Banishment, as a form of sentencing, has a long and dreadful history in our common law. The Transportation Act of 1784, 24 Geo. III, c. 56, [by which the British Parliament authorized convicts to be sent to any place designated by the King in Council, such as Australia] is a notorious example. In more modern times, this is a sanction that has fallen into disuse. [...] (16) It is clear American courts will only impose "a sentence of banishment" when there is "affirmative legislative authority to do so." (17) Nevertheless, the United States Court of Appeals noted-while ruling on the issue of banishment among the Seneca-that banishment had been imposed since the earliest times of the Republic and was held to form part of any sovereign government's legislative authority:

Early in American history, the punishment of banishment was imposed upon British loyalists, and was even celebrated as a matter of sound policy in dictum by a Justice of the Supreme Court. See Cooper v Telfair, 4 U.S. (4 Dall) 14, 20, 1 LEd. 721 (1800) ("The right to confiscate and banish, in the case of an offending citizen, must belong to every government.") (Cushing, J.). (18) b. In contemporary criminal law

i. An exceptional measure authorized by the Criminal Code

The courts have held that the power to impose a banishment condition can be found in s. 732.1(3) of the Criminal Code, (19) which provides that a court may, as an additional condition of a probation order, require that the offender:

(h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender's successful reintegration into the community.

Banishment also appears to be an allowable condition for bail, presumably under para. 515(4.2) (a. 1) of the Criminal Code, or for common law peace bonds. (20)

However, the Saskatchewan Court of Appeal summed up the state of the law by stating that banishment "should very much be considered the exception rather than the rule" in sentencing. (21) In another case, the same court held that while "judicial banishment decrees...