Tsuu T’ina Nation: Eviction and Band Membership Issues at Black Bear Crossing

On Thursday, October 30, 2008, the Supreme Court of Canada dismissed application for leave to appeal in the case of Tsuu T’ina Nation v Judy Bearchief et al. This Alberta Court of Appeal case looks at whether a First Nations band could obtain or issue a final order for eviction on an Indian reserve for residents whose band member-status was in debate.

The Tsuu T’ina Nation (Band) Reserve, referred to as Black Bear Crossing, is adjacent to southwest Calgary. The former barracks of the Canadian Army Forces are situated on these lands. Following the closure of the Calgary base, a variety of individuals, including Band members, non-members and individuals who claimed Band membership moved in; however, in October 2006, an officer from Health Canada declared all the units unfit for human habitation as a result of concerns about lead paint and asbestos. After this declaration, all occupants vacated the premises, however, a later evaluation proved that the situation was not as desperate as initially thought, so several residents returned. Later that year, the Band served an eviction notice to the residents, as the premises were set for demolition to make way for new housing. Several of the residents disputed this eviction, claiming that they had a constitutional right pursuant to section 35 of the Constitution Act to access and live upon the Reserve.

The chambers judge issued an interlocutory injunction in favour of four of the residents, finding that they had raised a serious issue regarding Band membership and that failure to grant such an injunction could result in irreparable harm if the four residents were removed from the Black Bear Crossing before the constitutional issues surrounding their membership status could be determined. The Band appealed the granting of the injunction in its eviction action, arguing that the interim injunction should be set aside as there is no irreparable harm and requesting that the court enforce the eviction notices and order the residents to evacuate the premises.

The Alberta Court of Appeal found that while there was no need for an interim injunction, the Band was not entitled to a final notice of eviction until the constitutional issues regarding the residents’ membership statuses were resolved. Since the eviction notices in this case were directed to “non-members” of the Band living at the Black Bear Crossing, as opposed to specific people, the Band must prove, at a minimum, that each person it proposes to evict is both a non-member of the Band and has received a notice of eviction. In order for the Band to demonstrate that each proposed evictee is a non-member of the Band, a trial judge must first deal with the constitutional issues raised by the residents with regard to their rights of membership in the Band. Since the constitutional issues must first be dealt with before the final eviction notice can be issued, the court concluded that there was no irreparable harm present. Thus, there was no need for an interim injunction since the Band could not evict the residents until they received a final eviction order.

The Supreme Court of Canada’s dismissal of the Band’s application for leave to appeal serves as a “win” for the residents remaining at the Black Bear Crossing Reserve who claim membership status with the Band. While the court may ultimately find that they are not members of the Band and allow the Band to issue final eviction notices, until these constitutional issues regarding Band membership are resolved, the residents are allowed to stay on the Reserve. In the meantime, according to an online article by CBC News, there have been rising tensions between the residents still living at Black Bear Crossing and the Band, as the residents’ electricity and water have both been shut off. On October 29, 2008, however, a Court of Queen’s Bench Justice ordered that all utilities be maintained until the membership and eviction issues can be resolved. While the Court of Appeal’s refusal to allow the issuance of eviction notices until the constitutional issues surrounding the residents membership in the Band are laid to rest may potentially push back the date for demolition and the construction of the new residences, it only seems fair that the remaining residents’ membership statuses be determined before the Band is allowed to follow through with the final eviction notices requiring the residents to vacate the property, as the issue that they have raised regarding Band membership is an important constitutional matter.