In April of this year, a convicted drug dealer was banished from Haida Gwaii; that same month, Tsilhqot’in Nation called for increased governmental assistance in addressing toxic drug-related harms at the UN headquarters in New York. These actions reflect a growing trend: Indigenous governing bodies (IGBs) responding to a crisis that demands localized, culturally grounded solutions.
There is no universal remedy for the drug crisis. Legal, health, and community interventions must be tailored to the specific cultural, geographic, and social contexts of each Indigenous community. Many communities are seeking, and some have made significant progress in developing, Indigenous-led initiatives focused on prevention, harm reduction, and enforcement to combat growing concerns about the use and sale of harmful drugs on Indigenous lands. They are doing so, increasingly, in the face of inaction by federal and provincial enforcement authorities.
Using trespass laws to address the drug crisis on reserve lands
Across Canada, some IGBs are approaching the drug crisis through the legal framework of trespass. Given the unique legal status of reserve lands, this approach offers a solution that builds on the Canadian legal framework while also supporting Indigenous self-governance.
Reserve lands occupy a distinct legal space as lands owned by Canada but held in trust for a specific community or band; they are akin to private, collectively held lands (see ss. 18(1), 28(1) and 30 of the Indian Act). Section 81(1) of the Indian Act allows Band Councils to create by-laws for a variety of purposes including provisions relating to trespass. Such by-laws often permit a Band Council to deny or remove permission for individuals to remain on a reserve where that person poses a threat to public safety. Such threats may include community harms associated with criminal activity and drug trafficking.
Trespass laws have already been used, in a non-Indigenous context, to combat the drug crisis and to support the prevention of individuals posing a danger to community safety in Canadian municipalities. In Kelowna, B.C., for example, the RCMP’s Inadmissible Patrons Policy (IPP) has been in place for over a decade. This voluntary program allows police, under the BC Trespass Act, to remove individuals from participating bars, restaurants, and hotels if they are involved in organized crime, drug trafficking, or violent activity. This program offers an example of how trespass laws can be applied to limit access to spaces where high-risk individuals pose a threat to community safety.
Whether based in provincial law or under the Indian Act, a program similar to the IPP could presumably apply on reserve lands. Support for application of provincial trespass laws on reserve lands can be seen in R. v. Keeper (2014 ONSC 3537). In that case, the Ontario Superior Court of Justice court found that provincial trespass laws apply assuming they are not in conflict with the Indian Act or an existing band bylaw.
Building on trespass law principles, Community Safety Agreements (CSAs), established between IGBs and the RCMP, offer an additional tool for securing public safety in Indigenous communities. Similar to the operation of the IPP in Kelowna, CSAs offer a pathway to the enforcement of trespass-related policies. Existing CSAs formalize the relationship between key individuals of both parties to the agreement – of the police and of the IGB – fostering bonds of trust and creating a direct line of communication that can be mobilized to good effect in a given situation. Ideally, such agreements have the potential to reinforce Indigenous sovereignty by supporting police enforcement of band-enacted trespassing bylaws. This is a particularly useful tool where there are individuals engaged in drug trafficking or other harmful activities. Like the IPP in Kelowna, these CSAs are community-focused, and operationalized in part through existing provincial laws. While CSAs may offer a useful tool for the enforcement of trespass laws, the success of this strategy depends on the willingness of police to enter into collaborations and to enforce bylaws – something that is often not the case due to current RCMP and Crown policies. Despite clear statutory authority under the Indian Act, enforcement has proven difficult. The RCMP declines or otherwise fails to enforce trespass bylaws, sometimes citing the federal prosecution service’s refusal to prosecute them.
Trespass laws are a practical legal tool to support IGBs in asserting control over their lands and protecting their members during ongoing struggles involving drug use and trafficking, violence, and addiction. But this is only true when those trespass laws can be safely, appropriately and efficiently enforced – a reality that many IGBs are not currently experiencing.
Using private prosecution to address the drug crisis on reserve lands
When the police are not willing to enforce a community’s trespass laws, an IGB may have to take a different approach. Such was the case in K’omoks First Nation v. Thordarson and Sorbie (2018 BCPC 114). Here, K’omoks First Nation (K’omoks) turned to private prosecution to enforce their laws on their lands to protect their community from dangerous persons. The court identified the hurdle to enforcement as follows: “The Band has a law on the books that may give relief from trespass, by way of a court order, but no ability to enforce the law without the cooperation of authorities outside the Band, unless it assumes the burden of prosecution” (at para. 16). K’omoks initiated a private prosecution to bring charges and seek removal of specific individuals from K’omoks lands.
K’omoks was successful in laying its information and was able to continue its prosecution. However, this came at a cost to the Nation – the initiative took time and effort, and it also created a financial burden that K’omoks would not have had to shoulder if its laws had been enforced by the police.
Like K’omoks, Mississauga First Nation (MFN) has had success in the private prosecution of an alleged drug dealer posing a threat to their community. Again, like K’omoks, MFN had passed a law pursuant to its Land Code which allowed it to protect the community by excluding individuals known to be involved in unlawful behaviour, including drug trafficking, from residing on MFN lands. MFN too engaged a private prosecutor leading to successful charges against a known trespasser under the offence provisions of its community protection law.
The difference between the MFN case and the K’omoks case is that some part of the burden of private prosecution was alleviated for MFN. In Ontario, the Ministry of the Attorney General Indigenous Justice Division and Justice Canada have initiated a private prosecution pilot program. This program provides funding up to $35,000 for First Nations. The funding is “specifically intended to support interested First Nations to retain private lawyers to prosecute infractions of First Nations laws.” (weblink here).
The pilot project is timely. The difficulty, if not impossibility, of enforcing IGB laws – Indian Act bylaws in particular – has been the subject of much scrutiny. Senate Bills S-271 and S-272 have taken note of the issue and propose to introduce a solution, if only a partial solution, by advancing amendments to the federal Royal Canadian Mounted Police Act and the Director of Public Prosecution Act, respectively. For links to the Senate Bills and our early commentary on the same, see here. The goal of these bills is to require, by statute, that the RCMP and federal Crown prosecutors enforce and prosecute in response to valid bylaws enacted under the Indian Act.
Private options and harm reduction for addressing the drug crisis
Trespassing laws are a popular route IGBs are taking to address the drug crisis, but are not the only option.
Where the barriers to enforcing IGB trespass laws seem too great, or where interim steps are needed, some IGBs have taken complementary paths. These can include:
- hiring private security teams,
- installing deterrent signage against drug trafficking,
- using surveillance cameras to monitor unlawful activity, and
- establishing community groups to report suspicious behaviour.
IGBs have turned to these approaches in contexts where support from public institutions has been limited or inconsistent. While this approach improves community safety, it does incur additional costs, training and possible liability.
In addition, in the course of implementing these enforcement steps, Indigenous communities have recognized the need to implement harm reduction strategies. These strategies may include:
- engaging community members to provide feedback,
- outreach campaigns and culturally appropriate harm reduction programming,
- land-based programming,
- distributing naloxone kits,
- providing overdose prevention training,
- offering drug testing,
- providing safe consumption sites, and
- establishing public education campaigns led by Elders, knowledge-keepers, and health professionals.
These initiatives reflect the broader legal and jurisdictional realities that IGBs face. IGBs need to be part of the design in order to address the harms hitting their communities disproportionately. This requires a multi-prong approach, requiring Indigenous-led collaboration among many agencies.
Amanda Nurse and Stephanie Lysyk