Senate Committee on Indigenous Peoples calls for jurisdiction over cannabis possession, sale, distribution in Canada

| David Brown

The Senate Committee on Indigenous Peoples calls for more control over cannabis rules within First Nations communities, says a report tabled today. 

The committee’s report is intended to inform the work of the ongoing legislative review of the Cannabis Act, which is expected to table their report in 2024. 

The report argues that the Cannabis Act has failed to recognize the argument made by many First Nations’ representatives in the lead-up to legalization in regard to a desire for jurisdictional authority around how cannabis is sold and distributed on First Nations land. In 2018, the committee called for delaying legalization until these issues were resolved.

The report concludes that this has effectively “shut out” First Nations’ participation in the cannabis industry in Canada. 

Among the report’s 13 recommendations is for legislation to amend the federal Cannabis Act to allow First Nations to regulate the possession, sale and distribution of cannabis on their lands. The committee also calls for increased funding for policing and enforcement of First Nations cannabis laws and additional funding and training for First Nations police services. 

The report also notes that only a small portion of First Nations-owned or affiliated cannabis businesses have received a federal commercial cannabis licence. As of March 31, 2023, six percent of all cannabis production licences in Canada were Indigenous-affiliated. The 2021 Census noted Indigenous people accounted for accounting for five percent of the total population in Canada.

“It is disappointing to once again be forced to try to correct oversights that could have been prevented had the federal government listened to First Nations people from the beginning,” said Senator Brian Francis, Chair of the committee. “In the spirit of reconciliation, the government must promote, rather than hinder, the full and equal participation of our people and communities in the economy.”

The report also calls for more supports for First Nations communities with enforcement of their own cannabis rules and regulations. One example the report provides is from Edward Lennard Busch, of the First Nations Chiefs of Police Association, who told the committee that First Nations police services have noted that illicit dispensaries are operating on their territories.

Busch said that the fines issued to these stores were not sufficient deterrence, noting “It’s anywhere from a $1,000 to $5,000 fine. A lot of these dispensaries make that in a day. The majority of the dispensaries open the same day or the next day after we execute a search warrant on the premises.”

The report calls on the Government of Canada to ensure better funding is available to Indigenous communities for the policing and enforcement of band by-laws related to cannabis.

As of March 31, Health Canada says there are 55 cannabis production licences that are Indigenous-affiliated (six percent of all licences), and another 44 applications in the queue. The federal government also maintains an Indigenous Navigator program to help First Nations-affiliated companies navigate the application process. 

While provincial governments control cannabis sales and distribution in their jurisdiction, several provincial governments have also been providing assistance to First Nations in their quest to operate cannabis stores.

The BC government has created special agreements with First Nations seeking to operate cannabis retail and production licences in the province, and Saskatchewan recently passed legislation giving First Nations the authority to licence cannabis retailers in their territories.  

Many Indigenous communities in Canada have disputed this interpretation, saying they have the right to manage cannabis as they see fit, either restricting it or regulating it. 

The Osoyoos Indian Band (OIB) first passed a moratorium against any cannabis stores in their community in 2019. The community then adopted their own Osoyoos Indian Band Cannabis Bylaw in 2020, citing section 35 of the Constitution Act, 1982, which recognizes and affirms the existing Aboriginal self-government and treaty rights of the Aboriginal peoples of Canada. 

The OIB’s corporate plan for 2018-2022 includes their intention to open “a new legal marijuana growing facility” and new marijuana retail outlets. The band licensed their first retailer in September 2020, Brewer’s Timix’w Wellness.

These approaches are not unique to BC. A First Nations community in New Brunswick put a moratorium on cannabis stores in their community in 2021.

Many First Nations community leaders argue for their own authority to manage cannabis sales and even production. Some legal experts and activists have also seen the potential to utilize the issues surrounding cannabis licensing to highlight overarching and historical jurisdictional challenges to federal and provincial laws

One Indigenous man in BC is suing the government over a raid of his store in 2020. A Mi’kmaw band councillor from Millbrook First Nation in Nova Scotia, arrested in a 2020 police raid of Indigenous cannabis dispensaries, is mounting a constitutional defence arguing his right to sell cannabis on First Nations land is constitutionally protected.

Not all First Nations are opposed to working with federal and provincial regulations. Several Indigenous businesses and governments across Canada have opted to work within these frameworks, as well as crafting their own rules to work in coordination with federal and/or provincial governments.

In 2022, a group of cannabis retailers in BC sued the government for what they say is a lack of enforcement of the province’s own cannabis regulations, highlighting unregulated cannabis stores, many of which operate on First Nations land in BC’s interior. The Tseshaht First Nation Elected Chief and Council on Vancouver Island, which is home to a First Nations-owned, provincially-licensed retail store, has called on the BC government to “take swift action on provincially unlicensed stores within Tseshaht’s territory”.

Representatives from the Senate Committee on Indigenous Peoples Committee spoke to media today on CPAC. Deputy chair of the committee, Senator David Arnot, said he is disappointed that the government is failing to live up to its promises of reconciliation.

“Once again, a government that says it is committed to building a renewed relationship with Indigenous Peoples based on the recognition of rights, respect, and partnership has failed to live up to its promise. Once again, Indigenous Peoples have been excluded from participation in the economic prosperity of the country. And once again, little regard has been given to how our lives have been impacted.”

On the Outside Looking In: The Implementation of the Cannabis Act and its effects on Indigenous Peoples 32 List of Recommendations 

Recommendation 1 That the Expert Panel engage in substantive consultations and propose solutions to the problems raised by Indigenous peoples related to legal jurisdiction, enforcement, equity and inclusion in the industry, and mental health and substance abuse and that funding be made available to Indigenous peoples during this process. 

Recommendation 2 That the Minister of Health introduce legislation in Parliament to amend the Cannabis Act to permit First Nations to regulate the possession, sale and distribution of cannabis on their lands.

Recommendation 3 That the Government of Canada convene a meeting with First Nations, federal, provincial and territorial governments in the spirit of cooperation and collaboration to solve jurisdictional challenges to enable First Nations to exercise their rightful place in the cannabis marketplace.

Recommendation 4 That the Government of Canada, as it develops legislation related to First Nation policing, in collaboration with the provinces and the territories and First Nations governments, establish legislative mechanisms for the enforcement of band by-laws and other laws related to cannabis by all police services and to ensure that related offences can be investigated and prosecuted effectively. 

Recommendation 5 That the Government of Canada furthermore ensure adequate funding is available to Indigenous communities for the policing and enforcement of band by-laws related to cannabis. 

Recommendation 6 That the Royal Canadian Mounted Police provide dedicated space for First Nations police services to undertake Drug Recognition Expert Training and that Public Safety Canada provide additional funding to First Nations policing to support this work. 

Recommendation 7 That Finance Canada work with First Nations to identify options for the development of an excise tax-sharing framework as part of its discussions on the fuel, alcohol, cannabis and tobacco tax. 

Recommendation 8 That Finance Canada and Indigenous Services Canada work with First Nations communities to identify options for the establishment of a First Nation-led agency to support First Nations participation in the cannabis market. 

Recommendation 9 That Health Canada and the Canada Revenue Agency work with Indigenous peoples and communities to undertake a review of their application processes for all cannabis-related licences and report the findings back to the committee by December 2023. 

Recommendation 10 That Indigenous Services Canada cover cannabis for medical purposes under the Non-Insured Health Benefits Program. 

Recommendation 11 That the Government of Canada work with cannabis producers to ensure the product is available for medical coverage under Indigenous Services Canada’s Non-Insured Health Benefits. 

Recommendation 12 That Health Canada and Indigenous Services Canada work with Indigenous peoples and communities to establish and fund a research strategy on cannabis and its effects on Indigenous peoples and communities. 

Recommendation 13 That Health Canada and Indigenous Services Canada provide funding for the development and update of Indigenous-led public health information on cannabis.