FAQs | Would Hobbema reserve's gang evictions be legal?

A new bylaw on an Alberta First Nation could see residents thrown off the reserve if enough people deem them a danger. We examine how much leeway reserves have in passing their own laws.
Samson Cree First Nation Chief Marvin Yellowbird at a press conference on July 11, 2011, the day his five-year-old grandson was shot to death by a stray bullet fired in a drive-by shooting on the reserve near Hobbema, Alta. (Ian Jackson/Canadian Press)

A recently adopted bylaw allowing residents to be evicted from an Alberta First Nation if enough people deem them a danger to the community has some asking just how much leeway reserves have in passing their own laws.

The new residency bylaw was passed by the Samson Cree First Nation, one of four nations located in the community of Hobbema, Alta., located 90 kilometres south of Edmonton. It must still get the nod from the federal minister of aboriginal affairs and northern development before it can take effect.

We take a look at some of the rules that govern law and order in aboriginal communities in Canada.

What laws apply on reserves?

The primary piece of legislation governing life on reserves is the Indian Act, but that does not mean that First Nations are exempt from other federal laws. Aboriginals living on or off reserve are subject to the federal Criminal Code and the  Charter of Rights and Freedoms.

The application of provinical laws on reserve is much more limited. They can apply in some instances, but only if the matter in question is not already covered by the Indian Act, the First Nations Fiscal and Statistical Management Act, the First Nations Land Management Act, band bylaws or treaty agreements. Section 88 of the Indian Act lays out the specifics of when provincial laws apply on reserve. 

Can First Nations pass their own laws?

Section 81 of the Indian Act grants band councils the right to create their own bylaws in a number of areas, including traffic, public health, law and order, disorderly conduct, nuisances, animal control, zoning, residency, land use and building construction.

These types of bylaws apply only on the reserve, but they apply to anyone on the reserve, including non-residents and people who are not members of the band.

Some reserves have tried to use bylaws to bar residents involved in criminal activity in order to prevent violent incidents such as the one that killed Ethan Yellowbird, 5, above. (CBC)

Bylaws enacted under Sec. 81 must be approved by the federal minister of aboriginal affairs and northern development.

Bands can also make bylaws governing property taxes (under Section 83 of the Indian Act), which have been the most common type of bylaws used to date on reserves, as well as licensing of businesses and trades.

A special provision of the Indian Act (Section 85) also allows for the passing of laws banning the sale and consumption of intoxicants. Unlike other types of bylaws, which require only the approval of the band council, intoxicant bylaws have to be approved by a majority of electors on the reserve.

First Nations that have signed self-governance agreements have much broader powers to pass their own laws and are subject to the specific conditions of their own governance arrangements with provinces and the federal government.

Who enforces bylaws on reserves?

The police force in charge of policing a reserve — which can be the RCMP, provincial police, municipal police or special First Nations constables — or a bylaw officer employed by the band council is responsible for enforcing bylaws.

Currently, the reality is that most bands don't have the resources to effectively enforce bylaws. Reserves have different agreements with provinces and the federal government to fund and provide police services, but the number of officers patrolling a reserve is often not enough to cover bylaw enforcement.

Who prosecutes bylaw violations on reserve?

Bylaw violations can be prosecuted in provincial courts, but in reality this rarely happens.

In some cases, a justice of the peace specially appointed under a provision of the Indian Act can hear minor Criminal Code offences, such as breaking and entering, or bylaw infractions.

If they can afford it, First Nations can hire in-house prosecutors to pursue bylaw violations in court.

A police car sits outside a home on the Samson Cree reserve where a 23-year-old woman was shot dead in September 2011. It's up to police or bylaw officers to enforce reserve bylaws, but there often is often not enough manpower for the job. ((CBC))

There have been some examples of successful co-operation between bands and provincial authorities to facilitate the enforcement of certain bylaws. In Nova Scotia, for example, the province integrated the Membertou First Nation into its existing system of issuing traffic tickets and collecting fines for traffic violations to spare the reserve having to set up its own enforcement system. When someone violates a Membertou traffic bylaw, they follow the same procedures when paying or contesting a fine as they would for provincial violations.

What penalties for violating bylaws can a band impose?

The penalties for bylaws created under Section 81 of the Indian Act cannot exceed $1,000 or imprisonment of 30 days.

How often do reserves use bylaws?

Many advocates for aboriginal self-government believe bylaws have been underused and could be an important tool in improving life on reserves and providing First Nations with greater autonomy. The First Nations National Building Officers Association, for example, has urged bands to use building code, zoning, surveying and land use bylaws to improve the quality of housing on reserves. It found that houses in communities that had such bylaws needed to be repaired much less frequently than those in communities without such laws.

Have other reserves passed eviction bylaws?

It is not unprecedented for reserves to use their power to enact bylaws in the areas of residency, trespassing, nuisance and law and order to try to bar individuals engaged in criminal activity from the community. The Enoch Cree First Nation in Alberta and several Saskatchewan First Nations, including Mistawasis, Onion Lake, Fishing Lake and Cowessess, have eviction or banishment bylaws on the books.

Enoch Chief Ron Morin met with band councillors from the Samson Cree First Nation to relay his community's experience with the bylaw, which, he told the Edmonton Journal, has made his reserve safer.

The Samson Cree case

What does the bylaw passed by the Samson Cree First Nation say?

According to the Samson Cree First Nation's new residency bylaw, which still has to be approved by the federal minister of aboriginal affairs and northern development, a person can be evicted from the reserve if all of the following conditions are met:

  • The person has been charged with or convicted of an indictable offence that has endangered the life or safety of one or more people on the reserve, or while living on the reserve has been convicted of two or more crimes within two years against a resident or the property of a resident.
  • The person is deemed to "present a danger to the health or safety of the community."
  • At least 25 residents sign a petition calling for that person to be evicted.
  • A Residency Tribunal of at least three members appointed by the band council has reviewed the petition and made a recommendation to the chief and band council to evict the person .
  • Two-thirds of the band council has approved the eviction order. (In the case of a non-band member, only the tribunal's approval is needed.)

A person who violates an eviction order faces a fine of $1,000 or 30 days in jail. An evicted individual can get permission to return to the community for special occasions such as funerals and can apply to have their residency restored if they demonstrate to the tribunal that they have made a change in their circumstances.

The bylaw also stipulates that anyone who wants to move to the community after the bylaw comes into force must first be approved by the newly created Residency Tribunal and must submit to a criminal background check.

How was the bylaw passed?

The Samson Cree decided to hold a referendum on the proposed eviction bylaw, although under the Indian Act this is not a requirement for residency bylaws. Only one-quarter of eligible voters participated, and the bylaw passed by a narrow margin of 479 to 370.

Why was the bylaw passed?

Violence has plagued the 7,000-member Samson Cree reserve and the three neighbouring reserves that make up the Hobbema Four Nations for years, but several recent incidents prompted community leaders to try a new means of curbing what they see as gang warfare tied to the drug trade that is endangering their residents.

In July 2011, the five-year-old grandson of Chief Marvin Yellowbird was killed by a stray bullet in a drive-by shooting, and the toddler's 23-year-old aunt was shot dead two months later.

There have been a number of other shootings and stabbings on the reserve over the years, including a 2008 drive-by shooting in which a 23-month-old Samson girl, Asia Saddleback, was hit in the stomach by a stray bullet.