Gamblin et al. v. Norway House Cree Nation Band Council, (2000) 198 F.T.R. 242 (TD)

• Judge: Muldoon, J.
• Court: Federal Court (Canada)
• Case Date: June 26, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 198 F.T.R. 242 (TD)

Gamblin v. Norway House (2000), 198 F.T.R. 242 (TD)

MLB headnote and full text

Temp. Cite: [2001] F.T.R. TBEd. JA.072

Tron Gregory Gamblin and Angela Faye Monias (applicants) v. Norway House Cree Nation Band Council (respondent)

(T-640-99)

Indexed As: Gamblin et al. v. Norway House Cree Nation Band Council

Federal Court of Canada

Trial Division

Muldoon, J.

December 18, 2000.

Summary:

The Norway House Band Council ratified a council resolution prohibiting the sale, use, possession or promotion of illegal use of drugs or alcohol. Gamblin, a member of the Norway House Band, was charged with, inter alia, possession of a controlled substance. The Band council evicted Gamblin and his fiancée (the applicants) from their house and banished them from the reserve for violating the resolution. The applicants applied for judicial review.

The Federal Court of Canada, Trial Division, held that the Band Council's decision to evict the applicants from their house was reasonable because Gamblin breached an implied residency condition. However, the court set aside the decision banishing the applicants from the reserve.

Indians, Inuit and Métis - Topic 2106

Nations, tribes and bands - Bands - Resolutions - The Norway House Band Council ratified a council resolution prohibiting the sale, use, possession or promotion of illegal use of drugs or alcohol - The resolution set out various sanctions, including banishment from the reserve - The applicants were banished from the reserve for violating the resolution - They applied for judicial review - The Federal Court of Canada, Trial Division, allowed the application - Sections 81 and 85.1 of the Indian Act authorized band councils to make bylaws for the protection of the community, including bans on intoxicants and the imposition of penalties for breaches of those bylaws - However, the resolution was not a bylaw and did not wield the same authority as a bylaw - The resolution did not come within the ambit of the Act - Therefore, it was not a lawful and enforceable policy - See paragraphs 49 to 58.

Indians, Inuit and Métis - Topic 5516

Lands - Reserves - Band housing - Gamblin, a member of the Norway House Band, was charged with, inter alia, possession of a controlled substance - The Band Council evicted Gamblin and his family from Band housing - Gamblin sought judicial review - The Federal Court of Canada, Trial Division, held that Gamblin and the Band had entered into a private law contract (not a landlord and tenant situation) - Gamblin forfeited the privilege to occupy Band housing by breaching the implied condition that no illegal activity was permitted in the house - Once Gamblin's housing allocation was revoked no other family member met the established criteria to remain - His fiancée was not a Band member and, therefore, was not eligible for Band housing - Although Gamblin's two children were Band members, they were not entitled to remain because they had not applied for housing and their names were not on the eligibility list - The decision to evict Gamblin was not patently unreasonable - See paragraphs 40 to 48.

Indians, Inuit and Métis - Topic 6222

Government - Band councils (incl. councillors) - Powers - Banishment of members - [See Indians, Inuit and Métis - Topic 2106 ].

Indians, Inuit and Métis - Topic 6230.2

Government - Band councils (incl. councillors) - Bylaws - Alcohol and drugs - [See Indians, Inuit and Métis - Topic 2106 ].

Cases Noticed:

Obichon v. Heart Lake First Nation No. 176, [1989] 1 C.N.L.R. 100; 21 F.T.R. 1 (T.D.), refd to. [para. 21].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 30].

Joe v. Findlay, [1987] 2 C.N.L.R. 75 (B.C.S.C.), refd to. [para. 33].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 38].

British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739; 183 N.R. 184, refd to. [para. 38].

Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454 and Hardy, [1998] 1 S.C.R. 1079; 226 N.R. 319; 168 Sask.R. 104; 173 W.A.C. 104, refd to. [para. 38].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 39].

Syndicat des employes de production du Quebec et de l'Acadie v. Commission canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241, refd to. [para. 44].

R. v. Campbell (G.R.) (1996), 113 Man.R.(2d) 288; 131 W.A.C. 288; 142 D.L.R.(2d) 496 (C.A.), refd to. [para. 54].

Counsel:

Michael Paluk, for the applicants;

Paul Edwards and Harley Schachter, for the respondent.

Solicitors of Record:

Michael Paluk, Winnipeg, Manitoba, for the applicants;

Duboff Edwards Haight & Schachter, Winnipeg, Manitoba, for the respondent.

This application was heard at Winnipeg, Manitoba, on June 26, 2000, by Muldoon, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on December 18, 2000.