Gamblin v. Norway House Cree Nation Band, docket T-640-99

     Date: 20001218

     Docket: T-640-99

Between:

     TRON GREGORY GAMBLIN AND ANGELA FAYE MONIAS,

     Applicants,

     - and -

     NORWAY HOUSE CREE NATION BAND COUNCIL,

     Respondent

     REASONS FOR ORDER

Muldoon, J.

[1]          This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, Chap. F-7, brought by the applicants against a decision rendered by the respondent Band Council evicting the applicants from their home and barring them from entering the Reserve lands at Norway House, Manitoba.

FACTS

[2]          The facts of this matter stated herein remain confined to those of which both parties acknowledge they have direct knowledge.

The Band Council Resolution

[3]          On 1 September 1998, a ratified Band Council Resolution (hereinafter BCR) of the Norway House Cree Nation Band Council was brought into force. The BCR was proclaimed as a means by which the Band Council could deal with the problem of illegal drug use and bootlegging on the Norway House Cree Nation Reserve (the reserve). It reads:

Band Council Resolution

To Deal With Illegal Drugs and Bootlegging

Whereas, it is the position and vision of the Norway House Cree Nation to pursue positive plans, programs, initiatives, and developments, and make improvements and changes for a healthy community,

And Whereas, there are illegal activities involved with drugs and bootlegging that are causing much misery and turmoil amongst our people, and which are the major cause of our social concerns and problems in the community,

And Whereas, it is our duty, responsibility, and authority to make decisions and directives to stop illegal activity for anyone, selling, using, possessing or promoting the illegal use of drugs, or use of alcohol on the Reserve,

Therefore, Be It Resolved, that anyone selling, using, possessing, or promoting the illegal use of drugs, or use of alcohol on the Reserve risks the following sanctions:

1.      Employment may be terminated.

2.      Assistance of any kind (i.e. Social assistance, economic and education support) may be terminated or denied.

3.      Housing may be denied and names will be removed from housing list.

4.      Offenders may be subject to arrest and charged.

5.      Names of offenders may be posted publicly.

6.      The Norway House Cree Nation and its affiliated or related companies and agencies may refuse to do business with any offenders.

7.      Repeat offenders may be banished from Norway House Cree Nation as a last resort.

Be It Further Resolved, that a Reward of up to $5,000.00 will be provided for information leading to the conviction of anyone selling drugs or bootlegging alcohol on the Norway House Cree Nation Reserve, and anyone involved directly and indirectly with the illegal drug activity in Norway House Cree Nation Reserve or bootlegging of alcohol has until the 1st day of October, 1998, to come forward voluntarily to meet with Chief and Council and to sign an agreement to stop and desist from illegal activity and change lifestyle in exchange for help and forgiveness.

In addition to placing advertisements on local radio and television stations, public notices stating the contents of the BCR and its potential consequences were posted throughout the reserve. This was done to ensure that all reserve residents were aware of the BCR and its policy aims.

[4]          On October 1 1998, the "amnesty" period created by the BCR ended. Following this date, anyone on the reserve who was found to be acting in contravention of the BCR was subject to its consequences. At this time, local RCMPolice provided the Band Council with a list of approximately 80 residents who were known to be involved, directly or indirectly, with the activities prohibited by the BCR. Those on the list who had not presented themselves to the Band Council during the "amnesty" period were sent a letter requesting a meeting with the Chief and Council, and notified of the potential consequences for continued illegal activity. On 5 October 1998, Tron Gamblin and Angela Monias, the applicants, each received such a letter.

[5]          On 2 November 1998, Tron Gamblin appeared at a Band Council meeting to respond to the letter. The minutes of the meeting indicate Mr. Gamblin asserted that he was not selling drugs and alcohol. They further demonstrate that Mr. Gamblin was informed of the possible consequences should he be either caught, or charged with an offence which contravened the BCR. In exchange for a signed declaration stating that he would stop, and desist from, illegal activities related to drugs and alcohol, the Band Council agreed to continue Gamblin's housing and support.

[6]          Angela Monias did not attend the 2 November, 1998 meeting since she had recently given birth. However, she did appear at a meeting on 18 February, 1999, in answer to the letter she received. Ms. Monias indicated during the meeting that she was not involved, either directly or indirectly, with illegal drugs or alcohol, because she did not wish to jeopardize the welfare of her children. At the conclusion of her remarks, the Band Council took the opportunity to reiterate the possible consequences which could arise, should she be found acting in contravention of the BCR.

[7]          In March 1999, the applicant, Mr. Gamblin was charged with possession of a controlled substance (marijuana).

[8]          Several days after Mr. Gamblin was charged, both he and Ms. Monias received letters from the Band Council instructing them to vacate their residence. In response, Mr. Gamblin arranged to meet with the Chief and Council on 23 March, 1999. Following the meeting, Mr. Gamblin remained unsatisfied with respect to the Band Council's authority to take such action, the family refused to vacate.

[9]          On 30 March, 1999, the Band Council proclaimed two resolutions in support of its decision to banish Gamblin and Monias from the reserve for their contravention of the BCR and refusal to vacate their premises. On 1 April, 1999, Band constables escorted Gamblin to the Band Office in an attempt to encourage a meeting with the Chief and Council. He refused and was subsequently removed from the Reserve. During that same time, Monias and the children were driven by social workers to Cross Lake, Manitoba (her home community), and finally to Thompson, Manitoba, where they now reside. Both Gamblin and Monias were forbidden to re-enter the reserve until further notice from the Band Council.

Individuals involved

[10]          Mr. Gamblin is a member of the Norway House Cree Nation. At the time the BCR was issued, he was living in Band-allocated housing with his fiancée, Ms. Monias, her niece, her daughter and their two infant children. Ms. Monias is not a member of the Norway House Cree Nation.

[11]          Housing in the reserve is allocated as is often the case, by the Band Council, when available, to those Band members who have applied and have been placed on the eligibility list. Only Band members may apply. Although it is not clear whether a residency agreement was signed (no document was submitted), it is apparent from Gamblin's affidavit that he knew of, and accepted, the implied term that continuing residency was contingent on no illegal activity occurring on the premises.

[12]          Since his banishment from the reserve, Mr. Gamblin has pleaded guilty to the charge of possession of a controlled substance. A stay of proceedings was entered on the charge of possession of stolen property.

APPLICANTS' SUBMISSIONS

[13]          The applicants base this application on the premise that the Band Council lacked the lawful authority and jurisdiction to exile the applicants from the reserve, and to evict them from their home for the stated reasons. It is the position of the applicants that they did not receive notice of their impending eviction and, as such, were denied the fairness owed to them. Moreover, the applicants maintain that the Band Council has no legal authority to banish a Band member from Reserve lands.

[14]      The applicants submit that the BCR fails to outline what sanctions will be applied to what type of behaviour, and clearly its policy is, therefore, a vague policy. Furthermore, the applicants maintain that they cannot be held to the sanctions imposed, because they were never notified of their existence.

By-Laws

[15]      The applicable sections of the Indian Act, R.S.C. 1985, C. I-5 (hereinafter Act) state:

81. (1) The council of a band may make by-laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, for any or all of the following purposes, namely,

         ...

(c)      the observance of law and order;

(d)      the prevention of disorderly conduct and nuisances;

         ...

(q)      with respect to any matter arising out of or ancillary to the exercise of powers under this section; and

(r)      the imposition on summary conviction of a fine not exceeding one thousand dollars or imprisonment for a term not exceeding thirty days, or both, for violation of a by-law made under this section.

[16]      Section 85.1 runs:

85.1 (1) Subject to subsection (2), the council of a band may make by-laws

(a)      prohibiting the sale, barter, supply or manufacture of intoxicants on the reserve of the band;

(b)      prohibiting any person from being intoxicated on the reserve;

(c)      prohibiting any person from having intoxicants in his possession on the reserve; and

(d)      providing for exceptions to any of the prohibitions established pursuant to paragraph (b) or (c).

The Act also includes the stated condition that a by-law is not effective until it has been submitted to, and received approval from, the Minister of Indian Affairs and Northern Development. The applicants assert that this procedure was not followed in implementing the BCR, and, therefore, it fails to conform with the Act. As a result, it is the position of the applicants that the sanctions imposed by the BCR are ultra vires the authority delegated to the Band Council by sections 81 and 85.1.

[17]      The applicants assert that since band council resolutions serve the purpose of recording the decisions of a band council during meetings, resolutions are not statutory instruments and have limited governmental and law-making authority. Therefore, they are not binding on anyone other than council members.

Eviction and Banishment

[18]      The applicants assert that sanctions such as eviction and banishment are not penalties contemplated by the Act, and cannot be imposed on band members for any reason.

[19]      It is submitted that the arrangement between the Band Council and the applicants, with regard to the allocated residence, was one of trust rather than landlord-tenant. This position is asserted and maintained by the argument that, whereas the Crown retains legal title, the band holds beneficial title on trust for its members as with all property classed as a band asset. It is on this basis that the applicants assert that the Band Council required a court order to evict them from their home.

[20]      Moreover, the applicants submit that although it was Mr. Gamblin who was charged, the entire family was punished. It is the position of the applicants that Ms. Monias and the children should have been permitted to retain possession of the residence because it was allocated to the family unit, not just Mr. Gamblin. This is especially so since the two youngest children are members of the Norway House Cree Nation.

[21]      The applicants assert that the respondent breached the duty of fairness in failing to provide them with notice of eviction as a considered sanction, which thereby prevented them from making representations which may have altered the outcome. This argument is based on the Federal Court - Trial Division decision in Obichon v. Heart Lake First Nation No. 176, [1989] 1 C.N.L.R 100. In rendering that decision, Mr. Justice Teitelbaum stated:

... council breached its duty to act fairly when it failed to give notice to the Applicant in order to allow him to make representations before any final decision to evict was made ...

[22]      With respect to banishment, the applicants have been unable to find any authority which allows a band council to banish a band member from reserve lands. It is their position that this sanction is an abuse of power which disenfranchises band members who must be ordinarily resident on a reserve in order to vote in band council elections. The applicants submit that to allow such control over residence would grant band councils the ability to control their own electoral processes. That is to contort such processes for extraneous motives.

RESPONDENT'S SUBMISSIONS

[23]      The respondent Band Council separates its argument into four distinct issues:

1.      did the Band Council have the jurisdiction to enact the BCR?

2.      is there a breach of the duty of fairness?

3.      is there control of the electoral process in banishing members who contravene policy?

4.      did the applicants breach their tenancy agreement by permitting illegal activity to occur on the premises? (If such did occur!)

[24]      With respect to the application as a whole, the respondent submits that this is a situation where judicial deference should be exercised. This position is based on the premise that the Band Council has specific expertise, in that they reside in, and are from, the community where the policy in question was implemented. Should this be found, a loss of jurisdiction is required in order to quash their decision, and the primary remedy would be to refer the matter back for reconsideration with directions stated accordingly.

Jurisdiction

[25]      The respondent begins by noting that Lake Winnipeg Treaty No. 5 allows for a prohibition of liquor on reserves, and that all laws created for this purpose shall be strictly enforced. Building on this point, the respondent further submits that the Norway House Cree Nation has always maintained a commitment towards the prevention of inebriant abuse on the Reserve. It is stated that this is a communal desire which dates back to the initial treaty. It is in conjunction with this customary objective, and subsections 81(1)(c) and 81(1)(d) of the Act, that the Band Council professes to wield the requisite authority to enact the policy expressed in the BCR.

Duty of Fairness

[26]      If a duty of fairness exists in this situation, it is the position of the respondent that it was met. However, in the alternative, the respondent asserts that, with regard to the eviction, no duty of procedural fairness was owed due to its nature as a private law matter.

[27]      The respondent asserts that the duty of fairness consists of three aspects: 1) notice; 2) impartiality of the decision-maker; and, 3) granting the opportunity to respond. It is submitted that the notice requirement was fulfilled by the posting of public notices throughout the community of Norway House, and by placing advertisements on both local television and radio. In both their affidavits and the cross-examinations thereon, the applicants admit that they were aware of the BCR policy due to the radio and television advertising. Moreover, Ms. Monias admits to attending a public meeting concerning the implementation of the BCR, and voicing her approval of its objective. On these bases the respondent asserts that adequate notice was given, with regard to the BCR and its consequences, to the applicants.

[28]      With respect to the second requirement, impartiality of the decision-maker, allegations of bias have not been raised in this matter. The Band Council created the BCR with the intention of universal application throughout the community, and has attempted to apply it as fairly as possible. For example, the fair application has included the sanctioning of a council member's son when he was found to be in violation of the policy.

[29]      The final aspect, the opportunity to respond, is one, the respondent asserts, it could not have fulfilled more adequately. At each stage of this matter, the applicants were offered an opportunity to meet with the Chief and Council to make representations regarding their position. At one point, Mr. Gamblin sought a meeting to discuss the escalating situation, and was readily accommodated by the Band Council. The respondent asserts that the applicants were afforded every opportunity to respond to the burgeoning situation, and if no representations were made it was because the applicants chose not to participate.

Effect on Electoral Process

[30]      The allegation that allowing band councils to banish band members thereby creates an opportunity to control the electoral process on the reserve is, in the respondent's submission, sufficiently rebutted by the Supreme Court of Canada decision in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203. It is asserted that this decision states that despite being banished, a band member who is no longer ordinarily resident on a reserve may still vote in council elections, because any policy providing otherwise would be discriminatory and in violation of subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Therefore, banishment does not put band councils in a position to control electoral processes, because the composition of the electorate generally does not change, despite the departure of a band member from a reserve.

Breach of the Tenancy Agreement

[31]      The respondent submits that everyone on the Reserve, including the applicants, knew of the Band Council policy that to remain in Band housing, occupants had to ensure that no illegal activities would occur on the premises. Moreover, occupants, including the applicants, were aware that the presence of illegal substances would vitiate their permission to use the residence. This position is supported in the affidavit of the applicant Gamblin. Thus, it is the position of the respondent that possession of Band housing is a privilege, not a right. Therefore, once the conditions were known to the applicants, repeated and breached, the privilege was lost, and indeed, withdrawn.

[32]      The respondent asserts that no individual Band member has a right to own, possess or reside on Reserve lands. Although the land is owned by the Crown for the benefit of a band, the Act prescribes that it is the Band Council which ultimately determines how the land will be used. Section 20 of the Act sets out the manner in which a band member may obtain the rights associated with possession of reserve land. So, because neither applicant held a certificate of possession or a certificate of occupation as outlined in section 20, they were not entitled to any of the rights flowing therefrom. Therefore, they were not in true possession of the land, which remained under the control of the Band Council, and from which they were ultimately evicted.

[33]      The respondent asserts that the decision of the British Columbia Supreme Court in Joe v. Findlay, [1987] 2 C.N.L.R. 75, found that although band councils may allocate all reserve lands to band members, not all band members may receive allocations. Thus, the failure to receive allocated land has the effect of essentially excluding band members from the reserve. It is on this basis, the respondent submits, that the Court held that band members have no right to use, occupancy or residency on a reserve.

[34]      Reasserting the position that the occupancy agreement is a private law matter, and building on the finding that band members may have the privilege of tenancy but not a right, the respondent maintains that the eviction cannot be questioned. This position is taken because the applicants knew the conditions when they took up residence, and subsequently breached the conditions. Therefore, it is the view of the respondent that no further contractual obligation was owed to the applicants.

Response to the Applicants' Submissions

[35]      In response to the assertion that a band council cannot sanction a band member in the absence of a conviction, the respondent submits that there are a number of governments in Canada who take action to restrict or deny privileges based on a charge alone. In support of this position, the respondent cites the example of the Province of Manitoba whereby, upon a charge of impaired driving, the car will be impounded and the driver's license suspended. This policy has been upheld as reasonable by the Manitoba Court of Appeal due to its social objective. In analogizing the above example, the respondent maintains that it implemented the zero tolerance policy regarding drugs and alcohol due to the necessity of protecting the health and welfare of the Norway House community.

[36]      With respect to the allegation that Monias ought to have been permitted to remain in the residence after Gamblin was evicted due to its allocation to the family, the respondent submits that this is not the case. Section 28(1) of the Act states:

Subject to subsection (2), any deed, lease, contract, instrument, document or agreement of any kind, whether written or oral, by which a band or a member of a band purports to permit a person other than a member of that band to occupy or use a reserve or to reside or otherwise exercise any rights on a reserve is void.

Angela Monias is not a member of the Norway House Cree Nation, therefore, in accordance with section 28, she is not entitled to exercise any of the rights held by Band members on the reserve.

[37]      In answer to the applicants' assertion that the BCR is not a valid and enforceable law by which the Band Council could implement this policy, the respondent submits that a by-law is not required by the Act. In noting the preamble to section 81 of the Act, the respondent asserts that the phrase "may make by-laws not inconsistent with this Act" means that by-laws may be enacted, but they are not required. Thus, it is submitted that resolutions are a valid form of decision-making which are legally binding beyond the membership of the Band Council.

ISSUES

1.      Did the Band Council commit a reviewable error in evicting Mr.Gamblin and Ms. Monias from their Band allocated housing?

2.      Did the Band Council commit a reviewable error in purporting to banish Mr. Gamblin and Ms. Monias from the reserve as a sanction for breaching the BCR?

ANALYSIS

Standard of Review

[38]      In determining the standard to be imposed on an administrative tribunal, Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, states that the central question in determining the relevant standard of review is whether the issue which the provision raises is one which was intended by the legislators to be left to the exclusive jurisdiction of the tribunal. Therefore, some of the factors to consider in determining whether curial deference is owed are: the absence or presence of a privative clause, the expertise of the tribunal, the purpose of the Act as a whole and the provision in particular, and the nature of the problem. This analysis builds on the decision in B.C. Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739, where it was held that a specialized tribunal acting within its area of expertise and jurisdiction is entitled to curial deference. In a situation where curial deference is owed, decisions of the tribunal are held to a standard of avoiding patent unreasonableness. It is important to note that avoiding patent unreasonableness is a very high standard of review, and a tribunal's decision will be found to be patently unreasonable only where a determination has clearly exceeded the tribunal's statutory jurisdiction [Canada Safeway Ltd. v. R.W.D.S.U., Local 454, [1998] 1 S.C.R. 1079].

[39]      However, one must keep in mind that if the tribunal, (meaning the Band Council here) goes beyond the bounds of its jurisdiction, any decisions made must be correct and little deference will be afforded by the courts with respect to the determinations of the tribunal [C.P. Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3].

Eviction

[40]      The issue of the applicants' eviction may be examined separately from that of the banishment since it is not contingent on the BCR.

[41]      At the most basic level, the agreement between the Band Council and Mr.Gamblin regarding the allocation of housing is a private law contract. It does not constitute a landlord-tenant situation because no rent is being paid, nor does it constitute a trust, as counsel for the applicants alleges, because the residence is the property of the Band Council and the Council does not act as trustee with respect to its own property. A private contract is evidenced by the following: Gamblin was offered the opportunity to inhabit the trailer; he accepted the offer with its attached conditions; and, consideration passed between the parties in the form of a mutual promise - Gamblin promised to maintain the residence and not permit any illegal activity in exchange for continued housing for himself and his family.

[42]      In his affidavit, Gamblin distinctly evinces that "everyone" knew that when a Band member obtained housing, an implied condition that no illegal activity was to take place there, was attached. He further swears that he knew of the condition, and accepted that its breach would vitiate his ability to continue occupancy of the residence. Therefore, when he was charged with possession of a controlled substance, (which may soon enough lose that designation) absent any consideration of the BCR, Gamblin breached the implied term of the housing contract. Whether or not the seized marijuana was his, he knew it was in the house and he allowed the activity to persist. Mr. Gamblin offered no evidence, either in his affidavit or on the cross-examination thereon, to suggest he did anything to discourage the use or possession of the marijuana or the stolen property in his home. In failing to prevent an illegal activity from occurring in his residence, Mr. Gamblin surely forfeited the privilege to occupy Band housing.

[43]      Although the Band Council relied on the alleged breach of the BCR to support the decision to evict, a duty of fairness is not owed in a private law matter and, therefore, is not a consideration. However, upon examination of the foregoing argument, one can state that if a duty of fairness were owed to the applicants, it was met.

[44]      The Supreme Court in Syndicat des employés de production du Qué. et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, held that both the rules of natural justice and the duty of fairness are variable standards. As such, their contents depend on the circumstances of the case, the statutory provisions and the nature of the matter to be decided. In the current situation, the applicants were given notice of the BCR and its consequences before and after its implementation. In fact, Ms. Monias admits to attending a public meeting regarding the pending BCR and voicing her opinion in favour of it. One cannot do something so public as voicing a favourable opinion, and then argue that no notice of the subject matter was given. The Band Council made every effort to notify residents of the community by posting public notices and placing advertisements on local television and radio. Moreover, correspondence was sent to those residents who were at risk of being caught by the conditions of the BCR. Given the circumstances, there is nothing further the Band Council could have reasonably done.

[45]      Furthermore, in each notice and piece of correspondence created, the Band Council invited those who might be affected to speak with the Chief and Council about how the potential consequences could be avoided. Both applicants testified in their affidavits that they took the opportunity to appear before the Chief and Council to discuss the letters they received. In fact, the minutes of the 2 November 1998 meeting, attended by Mr. Gamblin, indicate that the matter was addressed and the consequences which could possibly be imposed were discussed.

[46]      The assertion that Ms. Monias and the children ought to have been permitted to remain in the residence after Gamblin was evicted is not an issue. The recognized procedure for obtaining Band housing is that eligible Band members must apply to be placed on the housing list. Monias is not eligible, and never was, because she is not a member of the Norway House Cree Nation. Section 28 of the Act further supports this position by deeming void all contracts, agreements or other legal documents made with non-Band members which pertain to rights on the reserve. Therefore, Band housing could not be, nor was it, allocated to Ms. Monias.

[47]      The contention that the children who are Band members are entitled to remain in the residence is not supported by the Band policy. Although the children are members of the Band, they have not applied for housing nor are their names on the eligibility list. Upon examination of the housing eligibility list submitted as exhibit "J" to the affidavit of Nellie Swanson, it is evident that if housing is intended to be allocated to more than one person, all of the eligible names appear. It may be unfortunate that the children lost their home due to the actions of their father, but the Band cannot be expected to ignore established policy and further inconvenience other eligible applicants because Mr. Gamblin refuses to acknowledge that he is responsible for the loss of the family home. Once the allocation of housing to Mr. Gamblin was revoked, no other member of the family met the established criteria to remain. Therefore, it must be found that the residence was allocated to Mr. Gamblin for the benefit of himself and his family, not to the family without him. This Court is not a family court, but it may be observed that if the applicants abandoned their children - heaven forbid! - the children would have to be found homes, as wards of the Crown.

[48]      As the only administrative tribunal with the expertise to determine which procedures are effective for the allocation of housing to Band members, section 20 of the Act assists in the determination that curial deference must be accorded to the Band Council's decision to evict Mr. Gamblin. On this basis, one cannot find that the determination to evict was ultra vires the statutory jurisdiction granted to the Band Council. Therefore, the decision was not patently unreasonable, and no reviewable error was committed.

[49]      As the only administrative tribunal with the expertise to determine which procedures are effective for the allocation of housing to Band members, section 20 of the Act assists in the determination that curial deference must be accorded to the decision to evict Gamblin. On this basis, one cannot find that the determination to evict was ultra vires the statutory jurisdiction granted to the Band Council. Therefore, the decision was not patently unreasonable, and no reviewable error was committed.

Banishment

[50]      The issue of the applicants' banishment from the reserve is a much more contentious matter than the eviction. Although one is able to appreciate the social objective which the Band Council was attempting to achieve, it falls short of making the resolution enforceable.

[51]      The respondent contends that not only is the BCR a legally enforceable initiative which is binding on the entire community, but also that banishment is a sanction recognized by custom. However, no elders were called to testify respecting the alleged custom, and the only suggestion of it is hearsay found in the affidavit of Fred Muskego. Therefore, one must proceed on the assumption that the only basis for banishment is the BCR itself. Proceeding on this basis, the BCR must be examined within the context of the Act.

[52]      As noted previously, sections 81 and 85.1 of the Act grant band councils the authority to make by-laws for the protection of the community, including bans on intoxicants, and the imposition of penalties for breaches of those by-laws. In following the lead of other northern Manitoba communities which have already enacted similar initiatives, the respondent Band Council constituted the BCR in an attempt to prevent inebriant abuse from establishing a profound presence in Norway House. The intentions of the Band Council are admirable, but the Council failed to enact the BCR in such a way as to bring it within the ambit of the Act, although its quality of being admirable is, no doubt, irrelevant.

[53]      The respondent relies on the authority granted under sections 81 and 85.1 of the Act to assert that by-laws are not necessary when creating initiatives for the enumerated purposes. However, it is difficult to agree with this interpretation of the Act. By-laws are specifically discussed in the relied-upon sections, and the relevant provisions are found under the title "by-laws." Therefore to assume that by-laws are merely an option contemplated by the Act diminishes the authority which properly enacted by-laws assert. A band council resolution is not a by-law and vice versa: to assume they wield the same authority is a fallacy.

[54]      In the matter at hand, the BCR created a situation where the applicants were punished as a result of one of them, Gamblin pleading "guilty" to possession of a controlled substance. The fact that he pleaded guilty to that charge is a serious matter when the BCR indicates that such a charge is enough to justify sanctions. The applicants assert that this policy is contrary to the presumption of innocence. One must consider whether the banned conduct is intrinsically wrong; whether the conduct alone constitutes the offence, or must be accompanied by a guilty mind, or a lack of due diligence. In this instance, due diligence may be a defence to the BCR policy, but Gamblin could still be subject to sanctions. The fact remains that although he maintained that the marijuana was not his, Gamblin knew it was in his home and he failed to exercise due diligence in removing it from the premises.

[55]      The policy inherent in the BCR addresses the feared and serious issue of intoxicant abuse, and one can assert that this has established a strict liability offence to which the defence of due diligence is available. This is not a new response to a known social ill, and the earlier cited example of Manitoba's drinking and driving policy is a clear example of when such an approach is reasonable and necessary. In examining whether the BCR policy is unreasonable, one ought to consider the words of the Manitoba Court of Appeal in R. v. Campbell (1996), 142 D.L.R. (4^th) 496. The last part of the headnote (on p. 498) is helpful. It runs thus:

APPEAL by the accused from a judgment of Wright J., [1996] 2 W.W.R. 708, 106 Man.R. (2d) 135 *** dismissing the accused's application challenging the constitutional validity of s. 85.1 of the Indian Act (Can.) and an Indian band by-law passed pursuant to that section limiting the rights of citizens to possess and use intoxicants on an Indian reserve.

The unanimous Court stated:

The purpose of the enabling legislation is the amelioration of intoxicant abuse on those reserves which face the problem. Each band is left to decide for itself whether it has the problem and, if so, whether to impose a complete or partial ban. A ban can be lifted in whole or part when it considers a change appropriate to the band's circumstances. This is as custom-made as law can ever be. It is far from overbroad.

Subject to minor exceptions for medical and religious purposes, the ... Band has democratically exercised the power to prohibit possession of intoxicants and intoxication on the reserve ... The by-law was passed ... to meet a perceived need to conquer abuse and violence on the reserve. Nothing less, in the band members' judgment, will provide the desired hope for the abuse to stop and the consequential violence to cease.

The prohibitions are rationally connected to the troubles the band is trying to rectify. In the circumstances disclosed by the evidence, the means chosen to accomplish the goal are ... both reasonable and necessary. A court should be very slow to invalidate a local law on the ground of overbreadth when it has been crafted by those to whom it applies to meet their perceived needs. (p.505) (Twaddle, J.A., for the Court)

     (emphasis not in text)

[56]      The applicants have further asserted that the BCR is vague in that it fails to state which sanctions will be applied to what type of breach. However, one cannot agree with this. The BCR provides that a range of sanctions will be imposed if anyone on the reserve is found to be "selling, using, possessing or promoting the illegal use of drugs" or alcohol. If one were to accept the applicants' submission respecting the doctrine of vagueness, one could then argue that this same position may be applied to the Criminal Code of Canada, R.S.C. 1985, c. Chap.-46. The offences to which sanctions will be imposed are clearly stated, and the range of sanctions which could be levied are applied in accordance with the circumstances of each case - just as in the Criminal Code. This does not describe the contents of a vague policy. To adopt the words of the Manitoba Court of Appeal in Campbell: "One must take care ... not to require in the definition of an offence a standard of precision that is unattainable and thereby hamper the achievement of valid social aims."

[57]      In consideration of the above position, one may opine that: Gamblin knew of the initiative; he was repeatedly warned of the potential consequences; and, he forced the Band Council into a position of resorting to banishment with his continued refusal to vacate the residence and his open defiance of the Band Council and the BCR. The decision in Campbell supports the determinations made by the Norway House Cree Nation Band Council in all regards except one - the Norway House Cree Nation Band Council did not enact a by-law.

[58]      Had a by-law reflective of the BCR been passed and approved by the Minister, curial deference would be owed to the Band Council's decision to impose a banishment sanction in an attempt to prevent intoxicant abuse on the reserve. However, because the Band Council never intended to enact a by-law, as sworn in the affidavit of Fred Muskego, the BCR does not wield the authority of the Act. Without the Act to support the initiative, it matters little how much community support the policy enjoyed nor what were its social aims. It is not a lawful and enforceable policy.

[59]      Moreover, in failing to enact a by-law, and in assuming that a by-law was not necessary, the Band Council clearly acted ultra vires the intended authority of their statutory jurisdiction, thereby making their decision subject to the standard of correctness on review.

CONCLUSION

[60]      Despite the reliance of the Band Council on the BCR in supporting their reasons for evicting the applicants and their family, the decision is reasonable in light of Gamblin's breach of the implied residency condition. The breach of the implied contractual provision, whether it is written or oral, vitiates the permission to use the residence and means the Band Council acted within their jurisdiction in rendering a decision to evict. For this reason, the application for judicial review with regard to the eviction is dismissed.

[61]      Although the social aims and objectives intended by the Band Council can be appreciated, the Band Council acted ultra vires in enforcing the BCR absent statutory authority. This application of their jurisdiction was incorrect and is subject to review. On this basis, the application for judicial review with respect to the banishment of the applicants from the Norway House Cree Nation Reserve is allowed. The previous decision of the Band Council will be set aside, and the applicants permitted to return to the Reserve. The respondent is directed to vacate the BCR and seek by-law approval before attempting any further enforcement of this policy.

[62]      Damages will not be awarded in this matter because it is inappropriate to do so in an application of this nature. The Court will not reward the applicants with an award of costs, in light of the Band Council's attempts at persuasion early in this melancholy story. The applicants behaved all along as if they knew better than the Band Council. So the application is dismissed because the Band Council acted unlawfully, but otherwise beyond reproach. In sum, the application is dismissed, but no costs are awarded to any party hereto.

Ottawa, Ontario

December 18, 2000

     Judge