ADMINISTRATIVE LAW |
Judicial Review |
Certiorari |
Gamblin v. Norway House Cree Nation Band Council
T-640-99
Muldoon J.
18/12/00
27 pp.
Application for judicial review of decision rendered by respondent Band Council evicting applicants from home, barring them from entering Reserve lands at Norway House, Manitoba--Ratified Band Council Resolution (BCR) of Norway House Cree Nation Band Council by which Band Council could deal with problem of illegal drug use, bootlegging on Norway House Cree Nation Reserve brought into force on September 1, 1998--After October 1, 1998, anyone on reserve found to be acting in contravention of BCR subject to consequences--In March 1999, applicant Gamblin charged with possession of controlled substance (marijuana)--Both Gamblin, Angela Monias received letters from Band Council instructing them to vacate residence--Forbidden to re-enter reserve until further notice from Band Council--Whether Band Council committed reviewable error in evicting applicants from Band-allocated housing--Agreement between Band Council, Gamblin regarding allocation of housing private law contract--When charged with possession of controlled substance absent consideration of BCR, Gamblin breached implied term of housing contract--In failing to prevent illegal activity from occurring in residence, Gamblin forfeited privilege to occupy Band housing--Duty of fairness not owed in private law matter, therefore not consideration--Band Council made every effort to notify residents of community by posting public notices, placing advertisements on local television, radio--Nothing further Band Council could have reasonably done--Determination to evict not ultra vires statutory jurisdiction granted to Band Council--Decision not patently unreasonable, no reviewable error committed--Applicants' banishment from reserve more contentious matter than eviction--Indian Act, ss. 81, 85.1 granting band councils authority to make by-laws for protection of community--Band council resolution not by-law, vice versa--Fallacy to assume they wield same authority--Had by-law reflective of BCR passed, approved by Minister, curial deference owed to Band Council's decision to impose banishment sanction in attempt to prevent intoxicant abuse on reserve--Because Band Council never intended to enact by-law, BCR not wielding authority of Act--In failing to enact by-law and in assuming by-law not necessary, Band Council clearly acted ultra vires intended authority of statutory jurisdiction, thereby making decision subject to standard of correctness on review--Breach of implied contractual provision, whether written or oral, vitiated permission to use residence, meant Band Council acted within jurisdiction in rendering decision to evict--Application for judicial review with regard to eviction dismissed--Application for judicial review with respect to banishment of applicants from Norway House Cree Nation Reserve allowed--Indian Act, R.S.C., 1985, c. I-5, ss. 81 (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 15; S.C. 2000, c. 12, s. 152), 85.1 (as enacted by R.S.C., 1985 (1st Supp.), c. 32, s. 16).