Man takes First Nation to court over banishment

A Nisichawayasihk Cree Nation man argues bylaws that authorize mandatory checkstops to enter the community and the banishment of band members from reserve lands are unconstitutional.

Terry Wayne Francois, with lawyers funded by the Justice Centre for Constitutional Freedoms working on his behalf, filed a statement of claim in Manitoba’s Court of King’s Bench last week.

The claim names the First Nation, about 80 kilometres west of Thompson, as defendant. The community, also known as Nelson House, has yet to reply in court.

Francois argues two of the community’s bylaws violate multiple Charter of Rights and Freedoms protections and should be struck down by a judge as unconstitutional.

He filed the suit following his banishment from the First Nation after he was involved in an incident at the community’s checkstop in December 2024 that resulted in criminal charges.

The banishment, ordered by the band council, was to be in effect for five years. It was later rescinded after he took earlier legal action in Federal Court last year.

The bylaws authorize the operation of a permanent and mandatory vehicle checkstop at the entrance to the First Nation, where safety officers can search all vehicles entering the community, and allows Nisichawayasihk officials to banish band members without notice or hearings.

Francois, who has lived on and off the community’s reserve lands since he was a child, has been residing in a house in Nisichawayasihk with three of his daughters for the past decade.

The incident occurred on Dec. 30, 2024, when he and his daughter were driving home from Thompson, where they had picked up pizza, his court filing says.

Francois stopped at the checkstop and was prepared to consent to a search of his vehicle, as he had in the past, but First Nation peace officers brought out a drug sniffer dog, he claims in his court filing.

He refused to let the sniffer dog search his vehicle, “believing that such a search was not authorized by law,” the court papers claim. Francois “expressed his strong objections” and left the checkstop.

As he drove home, RCMP officers stopped him and asked him about the incident and he “explained his position” before Mounties let him go, the court filing says.

The next day, RCMP arrested him at his house and charged him with two counts of assault with a weapon on the First Nation safety officers, driving dangerously and resisting his arrest.

He was let out of RCMP custody on Dec. 31, but he was not allowed to stay at his home while his charges were pending, the court papers say.

Francois pleaded guilty in May last year to two counts of resisting peace officers and was fined. The other charges were stayed, but when he tried to return home to Nisichawayasihk from Thompson the next day, he was told at the checkstop he had been banished, the court papers say.

He sought more information and learned he wasn’t able to request a hearing with Nisichawayasihk officials until the end of 2029, the court papers claim.

After unsuccessfully attempting to appeal the banishment decision with First Nation officials, the court filing says, Francois moved for an application of judicial review of the constitutionality of the bylaws in Federal Court in July last year.

He also filed a motion in Federal Court seeking an injunction on the banishment to allow him to return to his house, leading Nisichawayasihk officials to rescind the banishment in October, his court filing says.

Francois returned home and discontinued his Federal Court actions and decided to constitutionally challenge the bylaws in the Court of King’s Bench instead.

Francois seeks at least $50,000 damages.

erik.pindera@freepress.mb.ca