Banishment Practice Needs To Be Controlled: New First Nation law presents due process concerns

Commentary, Aboriginal Futures, Joseph Quesnel

Norway House Cree Nation has chosen an interesting way to deal with chronic criminal offenders in their community. The only concern with the controversial practice is whether it provides procedural rights for individuals in the community.
Chief and council approved a law that allowed for banishment from the First Nation community. In the past, Norway House used band council resolutions to banish individuals, although federal court prevented them from carrying them out.
Indian Affairs does not believe this law is within the powers of a band council to carry out.
The positive aspect of the legislation is it clearly targets those who engage in illicit activity, like criminal gang activity. It is only a last resort approach and only affects those refusing to take advantage of efforts at reconciliation.
Chief Marcel Balfour stated the law was written in response to an increase in criminal activity on the community. In an interview with CBC, Balfour said his own home was broken into on four occasions.
So, there are positive aspects to the intent behind the new law as it is in response to a community tired of dealing with repeat criminal offenders in their community. I congratulate the community for taking strong measures to protect members from dangerous offenders. In this age of revolving-door justice, it is nice to hear governing officials put the interests of community safety first.
However, one must clearly separate banishment for criminal reasons from banishment for political reasons. The former might be considered legitimate, but should be sharply limited and subject to due process. The latter should never be tolerated.
Banishment has a precedent in indigenous societies. The problem is that during those times being banished from the community meant an individual would be confined to the wilderness where their safety would be in jeopardy.
This is no longer the case. The same controversy will likely greet this decision by Norway House as a Manitoba court that banished a youth to Yorkton, Sask., early this year. In that case, people worried the problem was not being solved but simply transferred to another jurisdiction.
A far greater worry is the issue of due process for those banished.
While culturally First Nations did practice banishment on those who endangered the community, on many modern First Nation communities, removing band members can sometimes be done for political reasons through the use of a band council resolution. This is the case for First Nation individuals who ask too many questions or present problems for those in authority.
While banishment could be seen as a tempting way to deal with crime, it is fraught with problems as it places great authority in the hand of band councils and removes it from individuals. As such, if banishment is deemed legal, it should be subject to individual rights protections and a right of appeal. Band councils already wield too much power over individuals in terms of the provision of funding and services.
Let’s ensure this practice does not become yet another means for indigenous leaders to undermine individual rights.