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Indigenous Communities and the Cannabis Act: A Clash of Tradition and Treaties

On Tuesday, May 1, the Senate Standing Committee on Aboriginal Peoples called for the Senate to amend cannabis legalization Bill C-45 to prevent it from coming into force this summer, and delay it by a full year.

The Aboriginal Peoples Committee’s call for a year’s delay for legalization came as a shock to some. But for those who’ve been following Indigenous discussions about cannabis, the call for delay was almost inevitable.

The Committee cited an “alarming lack of consultation” with Indigenous communities. Committee member Independent Senator Dan Christmas said, “When we spoke to First Nations, Metis communities, none of them were consulted on the bill.”

This flew in the face of what the Committee noted were “this government’s stated intentions of developing a new relationship with Indigenous people.”

The call for a year’s delay came as a shock to those Canadians who presumed that after Bill C-45 passed its hard-fought second-reading in the Senate in late March, it would sail forward to legalization without further challenge. However, for those who have been following Indigenous discussions about cannabis, the call for delay was almost inevitable.

On Wednesday, a Special Chiefs Assembly meeting of the Assembly of First Nations passed a resolution pressing the government to amend Bill C-45 to include First Nations in the spread of revenues from excise taxes. The text of the resolution says that “Federal and provincial governments must recognize and respect First Nations sovereignty and jurisdiction over their reserves and traditional territories.”

There is no mention of First Nations or other Indigenous communities in the text of Bill C-45, meaning provincial and territorial governments are handed the responsibility for regulation and distribution. Given that First Nations are in a relationship with the federal government but not provincial governments, that leaves the entire issue of legal cannabis in Indigenous communities unresolved.

“There is a huge question about whether Ontario's laws can even apply on reserve.”

Speaking to the Globe and Mail last year Donald Maracle, Chief of the Mohawks of the Bay of Quinte near Kingston, said “There is a huge question about whether Ontario’s laws can even apply on reserve.”

The AFN stressed that refusing to sort out the rights and responsibilities of First Nations under legalization would leave it up to the federal government to enforce the law on reserve—a challenging and volatile situation.

“You will have the RCMP doing search warrants because First Nations are not prepared. So whose law is going to apply?” said former Alberta Regional Chief Cameron Alexis, of the six-Nation not-for-profit organization Tribal Chiefs Venture.

Those new to the issue of cannabis and Canada’s Indigenous peoples need to begin with the one thing that every First Nations, Métis, and Inuit community in Canada has in common on this subject, which is the desire for self-determination. Some communities want an all-out ban on cannabis. Some communities want to be able to grow and sell cannabis freely. All feel they have a moral right to decide for themselves how cannabis legalization takes place in their communities, while many believe their right to decide is protected by law.

How We Got Here

In order to understand the kaleidoscope of issues that comprise Canadian Indigenous responses to impending cannabis legalization, it’s important to remember how mind-bogglingly complex Indigenous legal issues always are. To begin with, there are more than 600 First Nations in Canada, four areas of the Inuit Nunangat (Inuit communities are not First Nations), and eight formal Métis settlements in Alberta. (As well, 1.4M square kilometres of land is set aside for Métis people in Manitoba.

In many cases First Nations, Métis settlements, and Inuit communities are connected through linguistic and cultural ties, but Canada’s Indigenous communities differ broadly from one another.

While in many cases First Nations, Métis settlements, and Inuit communities are connected through linguistic and cultural ties, Canada’s Indigenous communities differ broadly from one another. Even in the province of Ontario, southern First Nations close to urban spaces like the Mohawks of the Bay of Quinte are be massively different from northern fly-in-only communities like Attawapiskat. Cree communities in Quebec are comparatively similar to one another, but they’re very different from Plains Cree Nations in the West.

Every one of those Nations and communities wants a say in how legalization takes place on their land, and they don’t all agree with the initiative. Most are working to determine how much constitutional right they have to administer legalization in the manner that best suits their needs, and many maintain they have the right to pass all-out bans on cannabis if they wish.

What is now home to Canada was previously home to dozens if not hundreds of different understandings of society and governance. The League of Five Nations and the Haudenosaunee (Iroquois) Confederacy shared a robust framework for leadership and decision-making that bears no resemblance to the way the many Coast Salish communities on the West Coast organized themselves, for example. Simply put, prior to European contact there were many ways to conceive of law and government in present-day Canada, and many Indigenous communities continue to maintain those differences of opinion.

Treaties complicated things further. First Nations in Canada began signing treaties with the French and later the English Crown in the 18th century, and as a result the map of Canada is a patchwork quilt of different treaties, along with areas where no treaty is in force. Some twenty treaties predate confederation, while the Numbered and Williams Treaties continued treaty-making into the 1920s. Beginning with the 1975 James Bay Northern Quebec Agreement, signed by the Crees of Eeyou Istchee and the Inuit with Quebec, the era of modern treaties and Comprehensive Land Claims began, with more than a dozen to date.

This adds up to a legal situation in which there are dozens of constitutionally recognized documents each reflecting a version of the relationship between Canada and First Nations, who often have drastically conflicting feelings about the value of cannabis. There are also a variety of communities (such as many in British Columbia) with no treaty in place, whose land is considered formally unceded.

A Well-Earned Wariness

Indigenous communities are unique in containing a high percentage of survivors of Indian Residential Schools. Those re-education camps were designed to destroy Native cultures, communities, and languages: officially sanctioned physical abuse (in the form of corporal punishment) was widespread, and non-sanctioned sexual abuse of children was likewise rampant. The Truth and Reconciliation Commission closed its mandate by concluding Residential Schools were a form of “cultural genocide.” Survivors of Residential School were in many cases left with trauma that haunted them for life, and the trauma of Residential School (which has become intergenerational) is frequently cited as a cause of addiction in Native communities.

The legalization of another intoxicant leaves some First Nations uneasy.

While Indigenous people are actually statistically less likely to consume alcohol than non-Indigenous people, those who do binge-drink at nearly three times the Canadian average. The harmful effects of alcohol have been significant enough that the majority of Canada’s dry communities are First Nations reserves. For that reason, the legalization of another intoxicant leaves some First Nations uneasy.

Chief Wallace Fox of the Onion Lake First Nation, a dry community, reacted with surprise when he learned his First Nation had been included in a list of communities selected by the Province of Saskatchewan as eligible for a cannabis sale permit.

“There has been no consultation with the membership, the elders, and the council has not formally made any decision whether to proceed with this project or not,” he told the CBC.

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“Indigenous people were using this plant long before Canada ever existed. I’m not a healer, I’m not a doctor, but I know this medicine and I know it works.”—Clifton Ariwakehte Nicholas

Confirming the Chain of Command

Meanwhile, Chief Nathan Pasap, of White Bear First Nation, planned to challenge Saskatchewan’s decision to leave his Nation off the list of eligible communities, saying that there is case law to support his claim that his Nation’s claim is to the federal government, not the provincial.

“We want to be proactive, we want to create jobs. We want to basically take (a dispensary) on as another way of being self-sustaining.”

“If the provincial government wishes to challenge us or shut us down then we’re going to end up in a judicial process because they failed to consult us,” he said in a CBC interview. Later, speaking to CTV, he continued, “We want to be proactive, we want to create jobs. We want to basically take [a dispensary] on as another way of being self-sustaining.”

In both cases, the First Nations were supported by Saskatchewan’s Federation of Sovereign Indigenous Nations, who believe it is each First Nation’s right to decide for themselves whether they will participate in legalization or not, regardless of federal or provincial laws, depending on the feelings of their membership.

Speaking to the annual conference of the Assembly of First Nations, Ontario Regional Chief Isadore Day explained, “Our people are going to say, ‘Listen, we have Aboriginal treaty rights, we have economic rights as First Nations people. Who is Canada to say we can’t have a dispensary in our community?’”

However, he added, “What if a community says we want [legal age] to be 23 or 24 because the studies show that the development of a young person’s brain isn’t complete until they are in their 20s?”

Another Indigenous group to feel shut out of the discussion is the Manitoba Métis Federation (MMF), who applied to open a recreational cannabis retail store in Manitoba but were refused. Of the four organizations who were granted permission to operate in Manitoba, two—National Access Cannabis and 10552763 Canada Corporation—include First Nations partners. No Métis organizations are included.

In a press release, the MMF railed against the decision, saying “Once again Manitoba has forgotten the Métis nation. The decision to ignore the Métis nation further diminishes an already strained relationship and demonstrates Manitoba’s adversarial views toward the Métis nation.”

The Clash of Opinions

The Globe and Mail reports there is a split in opinion is between southern communities, who hope to market cannabis to non-Indigenous customers, and more isolated northern communities, who tend toward opposing legalization because the majority of users will be locals.

Attawapiskat First Nation, located near James Bay in Northern Ontario, has been the focus of a series of crises over the past decade, from housing crises to sewage floods to the tragic suicide crisis that caught Canadian media attention. Chief Ignace Gull sees little potential advantage in bringing legal cannabis to his community.

“We don't have the resources to deal with this. There is no funding to educate or make people aware of what cannabis is all about.”

“It will affect the community because we don’t have the resources to deal with this,” he said. “There is no funding to educate or make people aware of what cannabis is all about.”

Chief Gull’s opinions were reflected even farther north. Nunavut Tunngavik Inc. (NTI) represents the Inuit of Nunavut on matters related to treaty negotiation. Last October, NTI called for a formal delay in the legalization process to allow for the federal government to consult with Inuit whether or not legalization should occur in Inuit communities, and if it will be happen, to provide support for responding to potential harms that may come with it.

A variety of First Nations and other Indigenous communities were irate they were left out of the discussion between the provinces and the federal government about revenue sharing from the federal cannabis excise tax, which will apply even on reserve (where other taxes are not). At the moment, excise tax revenues will be shared 75/25 between the provinces and the federal government—but none are to be directed to Indigenous governments. Jane Philpott, Minister of Indigenous Services, assured First Nations their interests have been considered, even if their leadership has not been invited to the negotiation table.

“It certainly has come up on many occasions,” she told iPolitics.

While Indigenous governments don’t want to be excluded from the excise tax revenues, one perspective Indigenous communities seem to share toward the federal government as legalization approaches is the conviction that they should be the ones who decide how legalization takes place on their land.

A variety of First Nations and other Indigenous communities were irate they were left out of the discussion between the provinces and the federal government about revenue sharing from the federal cannabis excise tax.

“Listen, this is self-determination. Stay out of our affairs,” said Jeff Hawk of Six Nations of the Grand River First Nation (near Hamilton), following a raid in January on the dispensary he owned. A month after the raid, he presented results of a survey he administered showing broad support for dispensaries in the community, though the raid was undertaken by reserve police and supported by the Nation’s band council.

Between Kingston and Belleville Ontario, Tyendinaga Mohawk Territory, one of the member Nations of the Mohawks of the Bay of Quinte, has 22 dispensaries on reserve, and they expect no raids. The community is hostile to intervention from non-Native police—which includes the Tyendinaga police, funded in part by the Ontario Provincial Police. After Chief Ron Maracle attempted unsuccessfully to close a dispensary last July, community backlash led to a group of ten vendors forming the Kenhteke Cannabis Association, saying they did not recognize the authority of Tyendinaga police or elected band council. Since that time, community police have decided to leave the dispensaries be.

Not all southern communities close to non-Indigenous populations are open to legalization, however. In Akwesasne Mohawk Territory, on the US border near Ottawa, Grand Chief Abram Benedict asked the community for feedback on opening a dispensary there after legalization occurred. He received mixed responses, with many noting that it ran contrary to the spirit of the community’s own ban on intoxicants (which only prohibits intoxicating drinks). The community sent a survey to its membership, but Grand Chief Benedict remained open to the idea.

“We could have a dispensary on Cornwall Island, and if the market we are going after is non-Indigenous people, there is potentially a market to be had,” Benedict told the Cornwall Standard-Freeholder. “We’re saying that perhaps we should try to get ahead of the curve and see how we could benefit.”

The Legislative Coordinating Commission of Kahnawake Mohawk Territory, outside Montreal, is accepting feedback until May 11 on a draft law that will set the minimum age for cannabis purchase on-reserve to 21 (instead of the provincial minimum of 18), ban cannabis smoking and vaping in public areas, and impose a point-of-sale tax for cannabis sales to non-Indigenous buyers (presumably those who are not visibly Native and do not hold an Indian Status card). Businesses intending to sell cannabis in Kahnawake will require permission from both Health Canada and from Kahnawake, and proceeds from the tax will go to fund socio-economic initiatives.

“We're trying to be proactive because if we don't pass this in our own community, federal legislation will be enforced upon us.”

“I know it’s still very controversial for a lot of community members,” Mohawk Council of Kahnawake Chief Rhonda Kirby told community paper The Eastern Door, “but we’re trying to be proactive because if we don’t pass this in our own community, federal legislation will be enforced upon us.”

An hour away, Kanesatake Mohawk Territory was the site of the 1990 Oka Crisis, a two-month armed standoff between the Mohawk community, and more than 2,000 members of Quebec’s provincial police and the RCMP, who were supported by 4,500 Canadian Forces soldiers. In mid-April, Clifton Ariwakehte Nicholas—who carried an AK-47 on patrol during the Oka crisis and says he was ready to die for the unceded Kanesatake Mohawk Territory—opened Smoke Signals, an unlicensed dispensary in the community.

Nicholas explained to the Montreal Gazette, “If you come to me and you’re hurting, I have a responsibility to help you,” Nicholas says. “Indigenous people were using this plant long before Canada ever existed. I’m not a healer, I’m not a doctor, but I know this medicine and I know it works.”

In opening Smoke Signals, Nicholas was defying Kanesatake Chief Serge Simon, who has called for open consultation to decide whether or not to allow cannabis in the community.

“I’m not against medical cannabis — in fact we’re open to it — but the community has to have its say,” Chief Simon told the Montreal Gazette.

Huron-Wendat community Wendake First Nation, just outside Quebec City, is not going to bother trying to attract non-Indigenous money through cannabis. In November Chief Konrad Siouia told Radio-Canada, “We have a zero-tolerance policy [for alcohol], so we want to remain logical in our own economic development.” Even if cannabis is legal in Canada, it will remain prohibited in Wendake.

Drug use “is a scourge in the world of First Nations, you just have to admit it,” Chief Siouia said. “At the time [of alcohol control], that seemed like a scourge. Today we will add to that cannabis and other forms of drugs. We’ll keep watch with our lawyers to best understand how to apply regulations that will make sense.”

The Current Roadblock

Two weeks ago, Acting Director General and Senior General Counsel for the Department of Justice’s Aboriginal Affairs Portfolio Stefan Matiatian told the Senate Standing Committee on Aboriginal Peoples while the right of First Nations to ban alcohol is written into the Indian Act, the wording is so specific that First Nations have no right to ban cannabis. Consequently, he said, any attempt to pass a cannabis ban would violate Bill C-45, which would lead to a legal challenge, meaning, “it would be up to the courts to determine the relationship between the existing Indian Act provisions and the cannabis legislation.”

Quoted on iPolitics, Senator Gwen Boniface said, “From a First Nation leadership perspective… [W]e keep hearing people say well, [First Nations communities] could do the same thing as they do for alcohol, but the answer, in law at least, is no.”

Few who saw that discussion expected the Standing Committee would resolve the issue tidily, and in calling for a year’s delay the group has done the most they could to allow the necessary time to find lasting answers to the array of question legalization presents Canada’s Indigenous communities.. However, with recreational cannabis as a signature issue and the total consumer cannabis sales for 2018 estimated to be $8.6-billion, Trudeau’s Liberals will not likely accept a delay. That places the federal government on a collision course with a multitude of Indigenous communities, which will certainly result in a series of court challenges, and along with that, endless debate.


Top photo: Hundreds of supporters gather on Parliament Hill, in support of a group of young aboriginal people who traveled 1,600 km on foot from the James Bay Cree community of Whapmagoostui, Quebec on Parliament Hill in Ottawa, Monday March 25, 2013. (Fred Chartrand/The Canadian Press)

Midline photo: James Bay, Attawapiskat, North of Ontario. (Ivorr/iStock)

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Jesse B. Staniforth

Jesse Staniforth reports on cannabis, food safety, and Indigenous issues. He is the former editor of WeedWeek Canada.

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