COVID-19 and Indigenous communities: Authority to restrict access

Summary:

• Indigenous communities are uniquely vulnerable to the COVID-19 pandemic due to their general remoteness, inadequate healthcare infrastructure, overcrowded and poor housing conditions, as well as greater community and inter-generational contact;
• In the face of those vulnerabilities, many have taken steps to restrict access to their communities;
• Measures include advisories and by-laws under the Indian Act;
• An advisory has the benefit of flexibility and expedience, while a by-law has the benefit of being legally enforceable;
• It is likely that a Band Council Resolution ("BCR") alone is not sufficient authority to restrict access;
• For those First Nations that have removed themselves in whole or in part from the Indian Act – through opt-in legislation, modern treaty and/or self-government agreements – those mechanisms typically provide the necessary authority to restrict access to lands;
• Aboriginal title also provides a source of authority to control use and access to lands. Inherent Aboriginal rights can also be invoked, but may not be necessary given the availability of other means described above.

Introduction: Unique Risks and Challenges Faced by Indigenous Communities

Many Indigenous communities have begun restricting access to their communities in an attempt to reduce the spread of COVID-19, including by refusing entry to all visitors other than essential workers (for a recap of certain restrictions by Indigenous communities in British Columbia, see here).

While the outright barring of visitors to communities is a drastic measure, it is one necessitated by the unique vulnerability of many Indigenous communities, due to such factors as remoteness inadequate health care infrastructure (itself a significant and pressing matter to be reconciled, even in the best of times), significant overcrowding within many Indigenous households.[1] In addition to overcrowding, poor housing conditions – endemic in many Indigenous communities – have been associated with increased risk of the spread of infectious and respiratory diseases.[2]

Certain longstanding and ordinarily beneficial hallmarks of Indigenous communities also create added exposure and risk in the face of a highly contagious virus: strong community and, in particular, familial ties. These factors result, generally, in a much greater level of social interaction and of inter-generational contact than in most non-Indigenous communities – something that represents a unique challenge given the particular vulnerability of the elderly to COVID-19, and the growing awareness of asymptomatic carriers of the virus.

The current crisis and Indigenous community responses to it takes place against the backdrop of the impacts of historic pandemics and epidemics on Indigenous communities, including smallpox, measles, and the Spanish flu. On this topic, Terry Teegee, regional chief of the B.C. Assembly of First Nations, noted in a recent interview with CBC:

It's still fresh in our minds. It's not that long ago … that pandemics devastated Indigenous communities. You know, we had communities of hundreds if not thousands of people, and they were just gone. That's the devastation.

Historians generally agree that disease was the primary factor in reducing Indigenous populations by as much as 90% from their pre-contact levels.

As with other governments, different Indigenous communities have taken different approaches to the matter in ways that leadership have determined will best serve their communities. This article gives an overview of some of the different strategies that communities have taken to restrict access during the current crisis.

Strategies to Restrict Access

Advisories

Some nations have issued advisories, asking that the public avoid travel to their communities. For example, Haida Nation's advisory "urges against all leisure travellers to Haida Gwaii" at this time, a decision made to protect citizens, and especially Haida elders, language speakers, and knowledge-holders. This step was seen as particularly urgent (but equally difficult), given the large number of visitors Haida Gwaii welcomes every year from across Canada and from abroad.

Advisories have the benefit of being able to be issued and amended quickly and efficiently as the situation progresses. However, due to their voluntary nature, advisories rely on willing compliance by the public and do not have any legal effect on their own if anyone acts against them.

By-laws under the Indian Act

Other communities, such as the Heiltsuk Nation (of which one of the authors, Keith Brown, is a member) have issued by-laws under the Indian Act setting out legally-enforceable requirements restricting travel.

Heiltsuk Nation by-law 21 empowers its Council, after consultation with hereditary leadership, to declare a "disease emergency" (with a 90-day extendable period), pursuant to which Council may issue a range of orders including: establishing curfews, regulating entry into public spaces, and regulating travel.

Heiltsuk by-law 21 includes escalating steps to encourage compliance, ranging from: issuing a "notice of violation" ordering compliance; calling someone who has disobeyed a notice of violation to attend before Council; and finally, being charged with an offence, the punishment for which is a $1,000 fine, 30 days' imprisonment, or both.

So far, an order has been issued under by-law 21 preventing all non-essential visitors from visiting the Heiltsuk community of Bella Bella for the duration of the pandemic. Under this order, the Nation has turned away pleasure yachts and sailboats from docking at Bella Bella (normally a busy tourist stop on the coast).

By-law 21 identifies the source of its authority as s. 81(1)(a) of the Indian Act, which empowers band councils to make by-laws "to provide for the health of residents on the reserve and to prevent the spreading of contagious and infectious diseases".

Depending on the exact nature and purpose of a COVID-19 related by-law, other subsections of s. 81(1) of the Indian Act allow for the passage of by-laws related to:

• regulating traffic;
• observing law and order;
• preventing disorderly conduct and nuisance;
• regulating construction, repair, and use of buildings;
• control or prohibition of public games;
• the removal and punishment of persons trespassing on the reserve or frequenting the reserve for prohibited purposes; and
• the residence of band members and other persons on reserve.

A by-law has the benefit of clear enforceability: s. 81(3) of the Indian Act provides that, in addition to any other penalty imposed under the by-law itself, a band council may also apply in court to have any conduct contravening the by-law restrained (i.e., applying for an injunction).

BCRs Alone Are Likely Not Enough

For any community considering adoption of a system of access restrictions during the COVID-19 crisis, it is very important to note that such a system very likely cannot be set up via BCR alone.

Although BCRs are quicker to draft and issue than a by-law, they cannot , by themselves, implement initiatives that are identified in the Indian Act as being the proper subject of by-laws.[3] As noted above, many COVID-19 related matters likely fall into this category.

As an example outside of the COVID-19 context, a BCR that attempted to banish someone from Norway House Cree Nation for bootlegging was overturned in court on this very basis, even though the underlying policy of the BCR might have been a sensible one:

…the BCR does not wield the authority of the [Indian Act]. Without the Act to support the initiative, it matters little how much community support the policy enjoyed nor what were its social aims. It is not a lawful and enforceable policy.[4]

The court went on to conclude that, "[h]ad a by-law reflective of the BCR been passed...deference would be owed to the Band Council's decision to impose a banishment sanction".[5]

This reasoning is analogous to the current crisis: no matter how sensible or popular an initiative might be, if that initiative is the proper subject of a by-law, it must be passed in that way to have a better chance of withstanding legal challenge.

Even though by-laws are more resource-intensive to prepare, they come with the benefit of being able to set up a clear and predictable regime for compliance and enforcement (as in the example of the Heiltsuk by-law 21) that all impacted parties can review and understand in advance, contrasted to the legally uncertain and often case-by-case nature of BCRs.

First Nations Land Management and Modern Treaty and Self-Government Agreements

Many First Nations have removed themselves from the Indian Act, either in part or almost in entirety, through opt-in legislation such as the First Nations Land Management Act, modern treaty, or self-government agreements. Each of these specifically address authority in relation to the use and access to First Nations lands.

For example, the First Nations Land Management Act provides nations that are operating under it with broad authority to make laws in relation to reserve lands, resources, and the environment, that could be used to address the crisis.

In the self-government context, an example is found in the Tsawwassen First Nation Final Agreement, the Tsawwassen Government may make laws in respect of access to its lands (Chapter 7) which would appear to permit access restrictions regarding COVID-19.

Aboriginal Title and Inherent Rights

Aboriginal title conveys broad and far-reaching land rights including: deciding how land will be used; the right of occupancy and possession to land; and the right to pro-actively manage the land.[6] In this regard, the Tŝilhqot'in National Government declared a state of emergency due to COVID-19 and has closed access to all of its communities (except for essential services), "as an exercise of its inherent jurisdiction and authority to protect the health and safety of elders, citizens and communities".

Inherent Aboriginal rights protected by s. 35 of the Constitution Act might also be asserted to include a right to exclude others and control access to territories; indeed, this would typically be an essential hallmark of most Indigenous communities' governance and legal systems. Such a right would in any event likely overlap with the availability of tools noted above, and proof of such a right would therefore likely not be strictly required in order to take effective steps to protect Indigenous communities.

Conclusion

Indigenous communities have a wide range of options to respond to the COVID-19 crisis by way of access restrictions. Each community will be best placed to determine for itself which measures are most appropriate.

For more information regarding potential avenues for implementing access restrictions or any other matter, our Indigenous Law practice group would be pleased to assist you.