Q+A | As Indigenous communities consider banishment to address drug crime, a lawyer explains how it works

As many N.W.T. communities grapple with an ongoing drug crisis, some are looking for new ways to address the issue and increase public safety.

One idea discussed last week at a public safety forum hosted by the Dene Nation in Yellowknife is for communities to banish people deemed responsible for problems.  

Marc Gibson is a lawyer who practices in the Northwest Territories, Yukon and Ontario with a focus on Indigenous rights and constitutional law. He spoke with CBC's Trailbreaker host Hilary Bird on Friday about how banishment works and what rights communities and individuals hold.

This interview has been edited for length and clarity.

We have a number of different types of Indigenous communities here in the Northwest Territories, those with settled claims, and we have reserves. Can you walk us through how banishment works in Indigenous communities?

At its core it's basically the process of removing somebody from a community or from part of a community or from a certain situation. And there's a number of different ways that it can be done depending on what the community is trying to do.

If they're trying to remove non-members from the community, it can be done fairly easily actually, through a trespass law and through trespass enforcement. And if they're trying to remove members who have a right to be in the community, then it's a much more complicated process because the person has a legal right to be there.

Indigenous people have collective rights to the lands that they have, whether they're reserve lands or settlement lands. And so if the person being removed has a right to be there, then the community needs to go through due process in order to remove that person and make sure that they've had a chance to tell their side of the story and that they're making a reasoned decision.

So if it's a non-member, it's much easier to do. How do you go about doing that? 

It's an authority that most First Nations have, regardless of whether they're an Indian Act First Nation or an Indigenous group that has a settlement agreement or a treaty with the government.

They usually have some kind of authority that allows them to control residency on reserve and issues relating to public safety and public health. And those are all powers that can be used to create banishment laws.

But they need the law itself, they need some kind of bylaw or law that allows them to exercise their authority to banish people. So it starts with passing a law that allows them to use the power they have in a specific way that's endorsed by their community members.

And then once that's set, how would they go about enforcing it?

It depends on the community, but usually it's through the police. It's important that if an Indigenous community is thinking of enacting a banishment law or removing people from the community in some way that they have thought about enforcement or else you're just going to end up with a law that people aren't going to respect and that's not going to help the situation.

If you're going to have the police enforce the law, it's important to work with the police as you're crafting the law, as you're drafting it, as you're developing it with your community members. And talk to them about how that should work, whether they have any concerns, and make sure that those are addressed in advance. 

If you're going to use some other kind of enforcement mechanism, like a First Nation enforcement body, a bylaw enforcement body or something else, work that out ahead of time because you don't want to have a law that you don't have an enforcement mechanism in place for.

Sahtu Grand Chief Wilbert Kochon at the meeting this week told delegates that he believes that charter rights could be preventing communities from standing up to drug dealers. Are there limits to a community's power?

Yes, and certainly the Charter is an important limit.

I mentioned that there are collective rights to be on community lands, but there are also Charter rights. Individuals in Canada, including Indigenous people, all have Charter rights and that includes the right to security as a person, rights relating to equality. There's lots of rights that could be engaged, particularly under Section 7 of the Charter when you're starting to remove somebody from a place that they have a deep connection to, that they have a home, where they have their community. 

And so absolutely, Charter rights are engaged and need to be considered. And that doesn't mean that the fact that an individual has Charter rights prevents them from being banished, but it means that the community has to consider that, has to balance those rights against the rights of the community, and has to provide procedural fairness that allows them to make a decision that the courts can uphold and that'll be seen as fair by their own community members.

What if someone owns property in a community? Can they be banished?

Certainly they could still be removed from the community, but the power to banish a person or to remove them isn't necessarily the same power that you would need to appropriate their property or to take their goods or to actually take the land if they own the land in some form. So that would need to be a separate mechanism and that's not a mechanism that I would say Indigenous communities have access to as easily. 

Seizing someone's property is a much different game than removing them from the community under the powers that they have through either their treaties or the Indian Act.

I know it's an ancient practice, but we've been hearing about banishment with, particularly, Indigenous communities over the last little while. I'm thinking of what's happening in Haida Gwaii for instance. How common has banishment become these days?

It's certainly a tool that Indigenous communities are becoming aware of. And like you say, it's an ancient practice. I think a lot of Indigenous communities have practiced banishment going back millennia. And historically it was often the most serious form of punishment. It could be a death sentence. If you're in a remote location and you are cut off from the rest of your community members, you might not be able to survive. And so the roots of banishment go back a long way.

But I think as communities are entering modern treaties and are, sort of, coming to terms with a lot of the powers and authorities that they have, and are reconnecting with their traditional authority, communities are looking at the tools that they have available to them. And banishment is a tool that I think a lot of communities are realizing can help with solving certain kinds of problems in certain situations. 

And it's not a one-size-fits-all solution for all kinds of problems, but it's a tool that can help if you're trying to solve a certain kind of problem involving individuals in the community. Or in a certain location that the community would be safer or healthier if those people were removed.

Yeah, let's dive into that a little bit more. What are some of the other options Indigenous communities might have when dealing with this drug crisis and drug dealers in their community?

Removing the drug dealers themselves are sort of the low-hanging fruit. It can be effective to just remove the people who are causing the problems, especially if it's a remote community and access can be sort of easily controlled.

But often it's not that simple. And often there could be a non-Indigenous community right next door, and so it could be difficult to remove the person from the area entirely unless you're cooperating with your neighbours. 

And even if you can remove the drug dealers or the wrongdoers or whoever it is that's causing the problem in the community, more people could pop up, and you're still not dealing with the entire problem, like a drug crisis, for example. 

It's a very complex problem. It has lots of different causes. It has lots of different effects. And so things like social services, like child welfare, a lot of Indigenous communities control housing, and so they can achieve a lot of the beneficial effects of banishment just by removing people from housing or controlling their housing regulations.

You really need to look at it holistically. I know a lot of First Nations that are considering banishment, at the same time they're considering, how do we provide social supports to our citizens? How do we support children? How do we support the neighbours? And these are all important considerations because just removing the people who are there right now causing the problems doesn't necessarily remove, you know, the root cause of the problem, or any of its effects.