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.