In the past weeks and days, increasing numbers of individuals on reserve asserting jurisdiction to sell Cannabis have faced increasing scrutiny, and even arrests, at the hands of police officers purporting to enforce the Ontario Cannabis License Act. The arrests and confiscation of products at the Wahnapitae First Nation last week are merely the tip of the iceberg, and showcases a lot more to come if the rights to sell cannabis on reserve are not clarified and addressed.
In July of this year, Ontario announced the introduction of 8 cannabis retail licenses to First Nations communities across the province. Stores were invited to apply for a license once they obtained approval from the First Nations Band Council, on a first-come, first-served basis. At the time of allocation of the 8 licenses, there were 18 applicants on the waitlist to obtain a license to retail. Across the province, there are still tens, if not hundreds, of cannabis retail stores operating on reserves without an Ontario license.
The issue is complex, as Ontario has jurisdiction over “Indians, and lands reserved for Indians” only in respect of laws of general application. While certain provisions of the Cannabis License Act apply generally, as a whole this Act purports to do something that only the Band Council in a Nation-to-Nation consultation process with the Federal Government has jurisdiction to do. The lack of meaningful consultation with First Nations and Métis communities in Ontario to address these concerns means that the Act as it stands doesn’t do enough to support sovereignty. This is why you don’t see hundreds of applications for an Ontario license, as many communities consider that to operate within Ontario’s jurisdiction would be contrary to the Crown’s duty to consult, undermines their sovereignty and treads on federal jurisdiction.
Indigenous Canadians living on reserve need to be able to regulate their economic activities in accordance with the by-laws and wishes of Band Council. Ontario’s enforcement of the Cannabis License Act on First Nations and Métis territory needs to be addressed through a meaningful consultation process between the province, Band representatives, and the federal government, if required. Until then, enforcing Ontario’s Cannabis License Act through the use of police enforcement and quasi-criminal law is a recipe for litigation, and is only going to light the fire under an already smoldering pipe.