Ottawa won’t take a First Nation to court if it decides to ban marijuana from its territory, according to Bill Blair, the lead minister of the government’s cannabis file.
Blair, the Border Security and Organized Crime Reduction minister, and Indigenous Services Minister Jane Philpott appeared before the Senate Aboriginal Peoples committee Wednesday to face questions on how marijuana legalization, which comes into force Oct. 17, will impact Indigenous communities.
First Nations have complained loudly over getting shut out in the development of the Cannabis Act while questioning whether they would need to follow federal, provincial or territorial rules when it comes to regulating the plant.
Senators pressed Blair for a clear answer on how First Nation jurisdiction applies within the Cannabis Act framework given that excise tax revenues and regulatory frameworks are split between Ottawa, the provinces and territories.
Blair told senators that First Nations need to follow the intent of the federal law along with provincial and territorial regulations.
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, said Blair.
However, Ottawa would not fight the issue, he said.
“A court could determine it frustrates the intent of the act,” he said. “My understanding is that the minister of Justice does not intend to litigate on that issue.”
Indian Act silent on marijuana
Under the Indian Act, bands can pass bylaws prohibiting “intoxicants” from a reserve which are defined in the legislation as alcoholic or fermented drinks.
Because marijuana is not expressly mentioned in the Indian Act, a First Nation governed by the legislation would technically have a limited ability to ban the plant.
Blair told senators that First Nations couldn’t pass enforceable regulations unless they aligned with federal, provincial and territorial frameworks.
He said Ottawa would work with First Nations to ensure their proposed laws fit within federal provincial laws and rules.
“Until that work is done there are regulatory frameworks in every [jurisdiction], primarily under the federal legislation, to regulate those aspects,” said Blair.
Indigenous producers receiving licences
Blair also said there is no plan to directly share tax revenues — which have already been divided by Ottawa, the provinces and territories — from the sale of marijuana with Indigenous communities.
Blair said the issue would be addressed through separate nascent talks between Finance Minister Bill Morneau and First Nations on developing a new fiscal relationship.
Philpott told the committee that Indigenous communities are already benefiting from the potential windfall from legal marijuana. She highlighted Health Canada’s decision last week to award a licence to Seven Leaf in the Mohawk community of Akwesasne — the first producer licensed to grow marijuana in a First Nation.
Philpott said Health Canada has already given seven licences to Indigenous cannabis producers along with 19 that have an Indigenous partner.
“There is room within the new framework for Indigenous partners to participate in the federally regulated industry,” said Philpott.