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Water Today Title April 25, 2019

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Update 2019/2/6
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INDIGENOUS PEOPLE AND LEGALIZED CANNABIS




The 2nd National Indigenous Cannabis & Hemp Conference is taking place in Ottawa on February 19 to 21. Cannabis has been legalized. Cannabis is all about water. WT sent email questions to Lillian Dyck, Chair of the Standing Senate Committee on Aboriginal Peoples. She was not available. Deputy Chair, Scott Tannas agreed to get back to us. His answers are below, (in CAPS as sent).

This is an abbreviated version of Mannas' Senate bio: Scott Tannas is a proud Albertan who was born in High River, Alberta. Senator Tannas is Founder and Vice Chairman of Western Financial Group Inc. ("Western"). He was appointed to the Senate by Stephen Harper. Scott Tannas sits on a number of important Senate committees including Aboriginal Peoples'; Banking, Trade and Commerce; and Internal Economy, Budgets and Administration.

Q&A

WT - Along with many other legal experts, Mark D. Walters, the F.R. Scott Professor of Public and Constitutional Law at McGill University's Faculty of Law has pointed out that planning to regulate cannabis use and sales on Indigenous reserves, despite provincial laws to the contrary, raises important and controversial legal and constitutional issues. On the one hand,"lands reserved for Indians" is an area of federal jurisdiction under s. 91(24) of the Constitution Act, 1867, the federal Indian Act states that provincial laws of general application extend to reserves; on the other hand, there are very strong arguments to the effect that s. 35(1) of the Constitution Act, 1982, protects a much broader right to Aboriginal self-government than the courts have so far acknowledged. Can you give us your opinion on this legal issue for our viewers?

Senator Mannas - I am not qualified to comment on the legal issues or speculate on how quickly (or not) the legal status described would be bestowed through broadening interpretations by the court.

WT - Taxation also remains a key sticking point, with a deal hashed out between Ottawa and the provinces last December giving provincial governments 75 cents of every dollar collected in cannabis excise taxes and the rest flowing to the federal coffers. However, Manny Jules, chief commissioner of the First Nations Tax Commission, says that in the rush to legalize, Ottawa failed to properly consult First Nations on the cannabis tax framework and regulatory control. What is your view on this issue?

Senator Mannas -I believe the government missed an important opportunity to share a new revenue source with indigenous governments. Our committee had recommended that they do so. The senate chose not to include or consider this concept when they made amendments to the bill.

WT - In a submission to the Senate aboriginal peoples committee last March, Manny Jules called for First Nations authority over production, licensing and distribution as well as a share of the taxes. Had there been developments on this front?

Senator Mannas - Our committee recommended that a percentage of production licences be reserved for facilities located on land owned or controlled by indigenous governments. However, the government did not want this enshrined in the bill, which would have made it an obligation for health canada to manage. I believe the government again missed an opportunity to ensure economic participation to the advantage of indigenous communities. Instead, during the final days of senate deliberations, the minister made some vague promises to certain indigenous senators in exchange for their support of the cannabis bill, including this issue. I do not believe the senators made a good bargain on behalf of indigenous people. I said so at the time. We'll see.

WT - In the absence of legislation that allows for First Nations regulation of cannabis, dozens of Indigenous-run dispensaries have been popping up in Ontario and Quebec. In the Tyendinaga reserve, near Belleville, Ont., roughly 40 dispensaries serve an Indigenous and non-Indigenous clientele. Their owners say that as members of a sovereign Mohawk nation, they have the right to sell traditional medicines on their territory. How do you see this situation evolving? Being resolved?

Senator Mannas -I don't know how it will resolve itself.

WT - Chief Clarence Louie of the Osoyoos Indian Band was quoted in a Financial Post article stating that" cashing in on the crop is tougher for smaller, more remote First Nations" Why is this? Have other remote communities expressed this opinion?

Senator Mannas -I don't recall any testimony on this, but it is self evident. Proximity to large markets, cost of energy for greenhouse heat and light, are examples of the challenges Chief Louis refers to.

WT - Some First Nations bands have indicated that they would ban the sale of cannabis on this territory due to addiction problems in their communities. Under the Indian Act, bands can pass bylaws prohibiting "intoxicants" from a reserve which are defined in the legislation as alcoholic or fermented drinks. However, 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. Do you have any comments on this?

Senator Mannas -The government has flip flopped on this - initially saying that communities could not ban cannabis from the community, then a minister appeared to soften the position on this when testifying at our committee, and then subsequently sent a letter reverting back to the original position.

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