The Long Form - I Fought The Law and The Law Won.
Wanna play a game of ‘So You Think You Know Canadian Law”? Yeah - us neither - but there’s just something about the way the participation of Indigenous communities have been addressed in the Canadian Cannabis act that has us needing to know more.
We’d like to start this newsletter with an acknowledgement that we are on the land of the Anishinabewaki, Huron-Wendat, and Haudenosaunee who were the original occupants and stewards of this land. As current residents of this land we are very fortunate to enjoy the privileges of both the natural resources, and the colonial structures created in our benefit.
Further to the land acknowledgement, we’d like to bring to your attention that evidence of the cannabis family of plants was found in resin scrapings of 500-year-old pipes in Morriston, Ontario. This indicates hemp and cannabis were used in the Americas in the pre-Columbian era. Cannabis was likely here before most Europeans stumbled upon this place…
We’ve been curious about the legal situation around First Nations and cannabis for awhile - with many folks talking about the Indigenous Cannabis Cup in Tyendinaga Mohawk Territory and raving about their consumer experiences at the ‘Green Mile’ in Alderville First Nation, which were operating before the final assent of the Cannabis act and prior to the Ontario government hastily drafting a dispensary plan during an election. What got us thinking about it this week was the news that Ontario will create a new lottery for 50 additional retail stores across the province, with 8 of those locations dedicated to First Nations reserves.
In the first version of Bill C-45, the Canadian Cannabis Act, there was little mention of Indigenous communities. The only point we can find is Section 151.1, which mandates that the Cannabis Act must be reviewed three years after coming into effect - including a review of the impact of cannabis on Indigenous persons and communities. Many First Nations reported having zero consultation on the initial drafting of the bill, leading the Senate Standing Committee on Aboriginal Peoples to ask the senate to prevent the bill from coming into force as they felt they had been shut out of the discussion.
A point of contention is that First Nations reserves have a relationship with the federal government under Canada’s ‘Indian Act’, which includes the provision that a First Nation can develop and govern economic activity on reserve lands. Yet, the cannabis regulations did not acknowledge this, instead transferring many of the responsibilities of administration to the provincial governments.
The task force had some interesting last words on the matter in the lead up to October 17th, after the final draft was released for public digestion. According to Bill Blair: “If a First Nation decided to ban marijuana it would run counter to the aim of the Cannabis Act and may not survive a legal challenge… However, Ottawa would not fight the issue.” So… that’s all well and fine for reserves who vote to be dry - a.k.a. cannabis free - but what about folks who would like to participate in this new industry?
Health Canada vows to continue to work closely with Indigenous governments and communities, stating in the recently amended cannabis act that “Support for the self-determination of Indigenous peoples is a key objective of the Government of Canada.” Much uncertainty remains though, as the main areas of law addressed in the act - land use, health, and law and order - are also supposed to be the legal areas in which Indigenous communities are able to self-govern. Some First Nations have been working on their own cannabis law for some time, and are suspicious of the recent Ontario announcement that eight dispensary locations will be set aside for reserves - does this undermine their plans for cannabis autonomy?
Maybe you’re confused by all of this legal mumbo-jumbo? Maybe we are too? Could you tell we're not lawyers? We really thought this topic needed to be discussed, although we’d also like to wrap up by acknowledging that we are not - by any means - the experts on this matter, legally, culturally, or otherwise. If you can further school us on this matter, we’re all ears!