The RCMP recently raided two cannabis dispensaries on Indigenous Nations land near Chilliwack, BC. While many have questioned the use of police resources to shut down dispensaries with the pending legalization of cannabis, there remain major questions regarding the regulation and control of the cannabis market with respect to Indigenous Nations.
This is not the first time we've commented on this issue. Consistent with the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP"), Indigenous Nations are owed, and have been promised, by both the province and the feds, more input, consultation and control over their rights and resources, including the impacts of a new cannabis industry on those rights and resources. In a previous article we posted, Maya Stano and Merle Alexander noted the concerns raised by the Senate Standing Committee on Aboriginal Peoples in its report regarding the federal government's consultation with Indigenous Nations in connection with the Cannabis Act. The Senate Committee stressed the urgent need for greater consultation between the federal government and Indigenous Nations before recreational cannabis is legalized. Following the Senate Committee's report and concerns raised by several Indigenous senators, it appeared that the Cannabis Act may fail at the Senate vote. The Senators' concerns were mollified, however, by an eleventh-hour letter from two federal cabinet ministers, who promised detailed reporting (a full report to Parliament on Indigenous Nations' involvement in the cannabis market in September 2018, followed by another report within 12 months), and other commitments, including jurisdiction over the new industry by Indigenous governments and revenue-sharing. Apparently, these promises were sufficient to satisfy the senators' concerns, as the Cannabis Act passed the Senate vote and, notwithstanding the federal government's rejection of a number of the Senate's proposed changes to the legislation, passed both houses and received Royal Assent on June 21, 2018. (We've been following this for a while.)
While the federal government has made some promises, much remains uncertain regarding the extent of consultation and implementation of UNDRIP principles with respect to the recreational cannabis market for Indigenous Nations. Fundamental concerns remain as Indigenous Nations were simply lumped in with municipalities and local governments in the provincial and federal regulatory regime, and no independent revenue-sharing structure for Indigenous Nations governments was included in the Cannabis Act. BC has taken some preliminary steps to meet UNDRIP principles in its Cannabis Control and Licensing Act (Bill 30), by giving Indigenous Nations a veto over cannabis retail establishments in their "areas", which suggest a broader jurisdiction than simply "reserve" lands. As Maya and Merle pointed out, however, there are other requirements within BC's licensing regime that impose impediments on Indigenous Nations' participation in and control of the recreational cannabis market in their "areas".
BC has now renamed the Liquor Control and Licensing Branch as the Liquor Control and Cannabis Regulation Branch, and recently posted its Cannabis Licensing Application Portal online, and along with it, a guide entitled "Indigenous Nations' Role in Licensing Non-Medical Cannabis Retail Stores". The guide is intended to help Indigenous Nations understand their role in provincial retail licensing regime.
The guide provides that the Branch, after receiving an application for a non-medical cannabis retail store licence, will notify a "relevant" Indigenous Nation and allow it to respond by:
- Choosing to not recommend approval of the licence;
- Imposing restrictions on where the store may be located;
- Imposing restrictions on the hours of the store; and
- Imposing fees on potential licence applicants for assessing their applications.
If the Indigenous Nation chooses to consider the licence, it must gather views of "area" residents and provide comments and a recommendation to the Branch within a specified time period. The Branch cannot issue a licence if the Indigenous Nation for the area in which the store is located does not give a positive recommendation.
What seems not to be contemplated in BC's draft legislation or the guide is the frequent overlapping and/or shared territories of BC's Indigenous Nations. Conflicts are sure to arise in terms of the Branch's provision of notices of retail licence applications to "relevant" Indigenous Nations, especially if it mishandles the relevance assessment. Additionally, although Indigenous Nations may impose fees on potential licence applicants for assessing their applications, it is unclear whether such fees will include the full costs incurred by the Indigenous Nations' consideration of the application (including costs and expenses of gathering views from "area" residents).
The date of recreational cannabis legalization (October 17, 2018, for those of you living under a rock) is quickly approaching, and many questions remain about Indigenous Nations' role in the recreational cannabis market. Notably, consistent with the resolution of the Assembly of First Nations' Special Chiefs Assembly in May 2018, the First Nations associated with the recently-raided dispensaries in Chilliwack issued a press release on the opening of one of the shops on July 6, 2018, stating that:
"[t]he Cannabis Industry is being built and developed on First Nation community lands and the community laws will govern how this is to be done."
Despite the questions that remain, what is clear is that Indigenous Nations are not uniform in their desired approaches to recreational cannabis, and full Indigenous Nations jurisdiction and authority over the development of this new market within their Territories is essential to meaningful Indigenous self-government, reconciliation, rights recognition and implementation of UNDRIP.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.