Over the past months, the federal and provincial governments have been busy drafting new laws for the pending legalization of cannabis. Indigenous governments have, however, been sidelined, with a focus on information sharing rather than ensuring these governments have a substantive role in the legislative drafting. This, in an era where Canadian governments repeatedly assert their commitment to reconciliation and its implementation through the framework of the United Nations Declaration of Indigenous Peoples (“UNDRIP”).

At the federal level, where cannabis regulation is focused on the production side, Bill C-45 (the proposed Cannabis Act) has been heavily criticized by the Standing Senate Committee on Aboriginal Peoples. That Committee recently recommended that the coming into force of Bill C-45 be delayed for up to a year to allow time for Canada to reach agreement with Indigenous peoples on various matters – including the sharing of revenues from cannabis produced on Indigenous lands, substantial funding increases for health and related services, and culturally appropriate addiction treatment centres.

In its report, the Committee also recognized Indigenous peoples’ inherent right of self-determination, which the Committee noted includes their law-making authority to regulate cannabis. To a certain extent, some provinces have also recognized the regulatory authority of Indigenous governments over the retail side of the business.

For example, under BC’s proposed Cannabis Control and Licensing Act (Bill 30), Indigenous Nations are granted a veto over cannabis retail establishments proposed in their “areas.”  As the province expressly used the term “area” instead of “reserve,” and has committed to full implementation of UNDRIP (which recognizes traditional territories as the area over which Indigenous Nations hold rights), it appears that Indigenous Nations will have a veto on proposed cannabis retail facilities located within their traditional territories in British Columbia.

Concurrently, however, British Columbia had previously released a cannabis retail licence guide that placed onerous requirements on retail applicants that could have a disproportionate effect on Indigenous Nations. These include having fully executed leases in place (which can be a lengthy process for those Nations that have not yet adopted land codes and are thereby bound by federal bureaucratic backlogs) and restrictions on the business relationships between producers and retailers. This latter restriction can create a challenge for Indigenous Nations seeking to expand their economic development activities by partnering with different businesses.  As such, these new cannabis policies could have the effect of disrupting commercially viable operations in a similar manner as early agriculture policies that were used as a form of assimilation and adversely affected the abilities of Indigenous farmers to compete in the Canadian economy.

The Senate Committee seems alive to this issue and recommended that at least 20% of all cannabis production licences be reserved for producers on lands under the jurisdiction or ownership of Indigenous governments. This reflects the importance of ensuring that this new crop is only developed with appropriate economic involvement and governance by Indigenous Nations. True reconciliation demands nothing less than a full and fair opportunity for Indigenous Nations.