Brent Bissaillion’s job as chief of Serpent River First Nation now includes managing border crossings and hiring border guards.
It is one of at least 18 First Nations in northeastern Ontario to control access into their community during the COVID-19 pandemic.
“It’s really weird talking about it as a border. But it is our home, our territory, we want to protect it and it does have quote unquote ‘borders,'” says Bissaillion.
“I’m sure it’s weird for some Canadians to hear ‘First Nations set up their borders’ like ‘What? I thought we were in Canada.”
Every First Nation is handling it differently. Some have imposed a curfew, some are only letting people off the First Nation for essential travel and others are only stopping visitors at checkpoints.
Many communities including Batchewana, Nipissing and Aundeck Omni Kaning are asking visitors to stay away, but not physically restricting them.
Dokis First Nation has warning signs telling people to turn around all along the 28 km road leading to the French River area community from Highway 64, but no checkpoint.
“We did consider it, we looked at how we could. In someways it’s easier for Dokis with just one road in and out,” says Chief Gerry Duquette.
But he says there were worries about the safety of staff at a checkpoint, partly because of poor cell service and the First Nation decided to instead rely on Dokis citizens to follow the rules.
“I’m very proud of how the community has been complying and watching out for one another. It’s essential to get through this,” says Duquette.
Serpent River is not restricting people from venturing out, but is keeping visitors from coming into the community off Highway 17.
“There are people who do get upset, but it can’t be helped. We don’t have the resources non-Indigenous communities have to fight COVID-19, so any kind of outbreak here in the community would be devastating for us,” says Bissaillion.
“Is this the right thing? Have we gone too far? As long as I’m saving lives and none of my elders get sick and none of my kids get sick in my community, I think I’ve done a great job.”
Bissaillion says setting up checkpoints on the Trans-Canada Highway “was thought about” but it was decided to be logistically too difficult and too likely to “upset our neighbours.”
“In the future, who knows? I’m really hesitant when we hear about the provincial government re-opening things and getting back to that business as usual,” he says.
Bissaillion says under the Indian Act, his “hands are very tied” when it comes to actually punishing someone who tries to get around Serpent River’s checkpoints, saying he has no power to fine violators.
But Wahgoshig First Nation near Matheson says it can issue fines up to $10,000 for someone who disobeys an order to stay out of the community and up to 30 days in jail for other offences.
Fred Bellefeuille, the legal counsel for the Anishinabek Nation, has been advising member First Nations on these questions during the pandemic and says there is a “cloud of uncertainty” on the legal landscape.
“But basically if you have a property right, you can limit access to that property,” he says.
Bellefeuille says it’s clear that First Nations have a right over their reserve territory, either through treaties, the Indian Act, the First Nations Land Management Act or inherent Indigenous rights enshrined in the Constitution.
And a community without a treaty, such as Wikwemikong on Manitoulin Island, has even more power to determine where its borders are and how to enforce them.
Several First Nations, most notably M’Chigeeng, have set up checkpoints on provincial highways and turned some travellers away.
Bellefeuille says in most cases, reserve land under highways was surrendered to the provincial government, but says some First Nations may have a legitimate challenge depending on how it was handled.
The Ontario Ministry of Transportation told CBC in a statement that it has “administration and control” over Highways 540 and 551 running through M’Chigeeng, but is not a “road authority” and directed questions to the Ontario Provincial Police.
The OPP provided a statement that does not directly address legal questions, but says officers are speaking with those involved and are aiming to “minimize the impact on the travelling public and to ensure order and public safety.”
“The First Nation may have this right, but what tools do they have to exercise that right?” says Bellefeuille.
“The pandemic’s really brought to the forefront the practical realities of First Nation laws and how to enforce them, who’s going to prosecute them in court, how’s that going to be managed. We have to work out the details, because everybody kind of has a sense that First Nations should have an ability to protect their people from this illness.”
He says there is a lot of risk to a First Nation in closing its borders, including infringing on the charter rights of those in a First Nation who may not be able to leave freely and those passing through the territory.
Naomi Sayers is an Indigenous lawyer living in Garden River First Nation, where she regularly goes through checkpoints on provincial Highway 17B during her morning jogs.
Legally, she wonders about the credentials and authority entrusted in the “border guards” and about what the First Nation might do with the information on travellers it is gathering every day.
“You know, if you question it, I’m sure you probably won’t be let in. So there’s probably a lot of trust going both ways,” says Sayers.
“I’m trusting that they’re collecting it and they’re going to be using it appropriately and they’re trusting me that I’m giving them the correct answer.”
Sayers says the only real way to define what powers a First Nation has and what rules it has to follow in protecting its land is for someone to “question that authority” and take chief and council to court.
She says it has happened in the past, including a case in Garden River where someone who was banished by the First Nation successfully had it overturned in court, but not often enough to have a solid basis of case law to “guide communities.”
“It sucks that people have to go through a legal process to get the right decision,” says Sayers.
“There’s a right to self-govern, but with that right to self-govern comes a responsibility to govern appropriately.”
She says there is a chance that some landmark decisions could come of this pandemic situation, but she doubts anyone will have the energy for that in the midst of a public health crisis.
“I have a fear that people will be charged and some of it will be thrown out or people will just pay whatever fine is enforced on them just to get rid of it,” says Sayers.