Indigenous Nations possess extensive governance rights that have never been ceded or surrendered. These rights reasonably extend to the regulation of plants and medicines on their lands. Nonetheless, current cannabis legislation fails to include provisions for Indigenous Nations to regulate the cannabis industry within their territories.
Lack of jurisdictional recognition has been viewed as ongoing economic exclusion. An inclusive approach might have enabled Indigenous communities to manage cannabis possession, sale and distribution, providing potential economic and regulatory benefits. The situation highlights the need for future legislation to better respect Indigenous Nations’ governance rights.
Indigenous Nations have authority both under their inherent jurisdiction and enabling legislation that may be used to regulate cannabis on their lands. First Nations are using their governance authority in a variety of ways to regulate cannabis possession, sale and distribution. Some Nations have exclusively invoked the inherent authority they hold over their lands and people. Others use the power to regulate land uses under Land Code to regulate cannabis. There are also Indian Act authorities for this authority, including the power to regulate nuisance, to enact bylaws in relation to health, and business licensing powers.
One approach for First Nations is a “hybrid” approach that combines development of laws based on inherent jurisdiction with reference to other authorities, such as Land Code. This approach establishes that Indigenous Nations have their own jurisdiction over cannabis, while also creating a regulatory scheme around, say, licensing that may have benefits when it comes to enforcement. In the recent decision, George v Heiltsuk, the Federal Court held that it has no jurisdiction to review a power not granted or recognized by Federal legislation1. This suggests that if a court has no jurisdiction to review a bylaw or law, it might also say it cannot enforce that law. And, even with laws or bylaws that may be recognized by the court, enforcement may still prove challenging.
A difficult issue stemming from the failure to recognize Indigenous jurisdiction is lack of access to the legal cannabis market where a business is operating under First Nation laws. This may give rise to a cannabis grey market. It is important to note that the grey market may still be subject to testing and standards. However, the fact that First Nations must choose between their sovereignty and the legal market is problematic.
Addressing the challenges faced by First Nations in the cannabis market requires strategic interventions. A good step forward would be to work with Indigenous Nations to support them to manage cannabis on their lands, in accordance with their own legal regimes. An associated step would be to increase federal funding to support Nation-made cannabis laws and bylaws, including enforcement of these laws. This would bolster effective regulation and control of cannabis within First Nation jurisdictions, reaffirming their inherent rights to self-governance.
Within the context of British Columbia, agreements under section 119 of the Cannabis Control and Licensing Act may be useful. Although these are agreements based on provincial law, they could support First Nations to have access to the legal market while still respecting Indigenous sovereignty. If British Columbia intends to foster a cooperative relationship with Indigenous Nations, it is imperative that the province interprets section 119 in a broad, rights-based manner.
Working cooperatively with Indigenous Nations ensures that their governance rights are recognized and upheld. This not only respects Indigenous jurisdiction but also allows for potential economic growth and development of their communities. It is essential to make this a standard practice to avoid future missed opportunities.
- 2023 FC 1705, at 73. | ↩