They did it 'their own damn selves': First Nation wins unusual bid to evict bad tenants
K'omoks First Nation successfully prosecutes private criminal charges against couple under land code
Ryan Thordarson and Amelia Sorbie hadn't paid their rent in months. Even when their landlord handed them an eviction notice, they refused to leave and became "quite hostile," in the words of a B.C. judge.
Throughout most of the province, a dispute like this would be settled through the Residential Tenancy Branch, and bailiffs would remove the couple with a writ of possession from the courts.
But Thordarson and Sorbie were renting their Comox Valley home on K'omoks First Nation land, where the Residential Tenancy Act has no power.
Even though they were now trespassers under the First Nation's land code, local RCMP and Crown prosecutors didn't want to get involved, according to a provincial court ruling.
"It was extremely frustrating," K'omoks Chief Nicole Rempel told CBC.
"They flat out refused to leave. We contacted the RCMP numerous times. We had meetings at a council level with the RCMP, and they refused to uphold the law, because the land code wasn't a law they were familiar with."
An 'unprecedented' approach
Since 1999, when the First Nations Land Management Act was enacted, First Nations have had the authority to write their own laws for managing land and resources.
But as K'omoks discovered, having the power to create laws doesn't necessarily mean you have the power to enforce them.
And so the nation opted for a novel approach — applying to the courts to conduct a private criminal prosecution of Thordarson and Sorbie, without the usual assistance from police and the Crown.
It was an "unprecedented" move, Provincial Court Judge Patrick Doherty wrote in a ruling earlier this year.
It was also justified, the judge said, and he confirmed the criminal charges against Thordarson and Sorbie under the K'omoks Land Code in March.
Sorbie and Thordarson were both found guilty in September, and sentenced to a $1,000 fine each and six months of probation. They were finally removed from the house on Diayeesh Street in the presence of RCMP officers last week — more than 10 months after they stopped paying rent.
Photos of the two-storey home taken afterward show damage to the property, as well as piles of junk strewn across the lawn.
"I'm extremely happy that they decided that this was something we could uphold," Rempel said. "Hopefully, we don't have to go through the court again. Hopefully, the relevant authorities recognize the law and uphold it the way they're supposed to."
Comox Valley RCMP have not responded to requests for comment about the case.
Val Napoleon, director of the Indigenous Law Research Unit at the University of Victoria, said she's not aware of another case where a provincial court has signed off on a private prosecution through a First Nation's land code.
She described it as a good precedent, noting that Indigenous communities across the country have long struggled with how to manage housing issues under the laws enacted since colonization.
"Historically, people had ways of managing their collective lives, including living arrangements, and there's been an undermining of the historic laws," Napoleon said.
"What some peoples are doing ... is finding ways through Canadian law to take up the responsibilities and ways of managing responses to contemporary problems."
'First Nations law is law'
The case could have much broader implications than just tenancy disputes, according to Vancouver lawyer John Burns, who represented K'omoks at court.
"We haven't had this super clear articulation that yes, in fact, First Nations law is law and yes, in fact, it will be enforced," Burns said.
He's worked with other First Nations who've had problems with drug dealers hanging around on reserves and no way to remove them without a thorough police investigation and charges. This case could change that.
"This shows everybody that if the normal public law enforcement mechanisms aren't going to be used … then First Nations can take things into their own hands and do it their own damn selves," Burns said.
He added that he hopes the K'omoks case helps spur some changes in policy at the federal level.
"You hear the federal government talking all the time about empowering First Nations and enabling self determination and self government in a meaningful way, Well, come on, if we're taking this seriously, let's start with basic concepts like equal application of law," Burns said.