Eviction Notice Stayed for Residents of Black Bear Crossing
by Jennifer Koshan
Tsuu T’ina Nation v. Bearchief, 2008 ABCA 74,
http://www2.albertacourts.ab.ca/jdb%5C2003%5Cca%5Ccivil%5C2008%5C2008abca00
74.pdf
Black Bear Crossing (“BBC”) consists of 161 units on the former barracks of the
Canadian Armed Forces, situated on 940 acres on the northeast corner of the Tsuu T’ina
reserve. The residences have been occupied by Tsuu T’ina Band members, as well as
those claiming Band membership, since Canadian Forces personnel moved out when the
base was decommissioned in 1996. In 1998, four Tsuu T'ina families who had been
unable to find affordable housing moved into the unoccupied residences and within a
month, most of the BBC units were occupied.
In October 2006, BBC was declared “unfit for human habitation” by Health Canada due
to concerns about asbestos and lead paint in the residences. While the occupants of BBC
originally evacuated the premises, some later returned when further Health Canada
investigations showed that some of the units were fit for habitation.
The Band served an eviction notice, directed at “all Non-Tsuu T’ina Nation Members,”
on 29 of the occupants on December 27, 2006, following which four of them initiated an
action – the Peshee action -- to establish their right to reside on the reserve. The Peshee
action occupants also sought an interim injunction against their eviction.
The Peshee action is based in part upon an Aboriginal right under s. 35 of the
Constitution Act, 1982 to access and live upon the Reserve. The Peshee claimants also
challenge the Indian Act, R.S.C. 1985, c. I-5 and the Band’s Membership Code as
unconstitutional and of no force or effect. This argument derives from the continuing
effects of the “marrying out” provisions of the Indian Act, notorious provisions under
which First Nations women lost their “Indian” status and rights to band membership by
marrying non-Indian men. The relevant provisions of the Indian Act were amended by
Bill C-3