08/02/2025
Assertion of Treaty Rights Under Section 35: Legal Basis: First Nations dispensaries often argue that their right to operate cannabis businesses is protected under Section 35 of the Constitution Act, 1982, which recognizes and affirms Aboriginal and treaty rights.
Treaty Provisions: Specific treaties, like the 1752 Peace & Friendship Treaty cited in the case of Chris Googoo in Nova Scotia, are invoked to claim a right to trade. This treaty promises the Mi’kmaq “free liberty to bring to sale to Halifax or any other settlement within this province skins, feathers, fowl, fish or any other thing they shall have to sell.” Defendants argue that cannabis, as a medicinal plant, falls under “any other thing” they have a right to trade.
Argument: The dispensary may assert that treaty rights include the ability to cultivate, distribute, and sell cannabis as an extension of traditional economic activities, particularly if cannabis is framed as a medicinal or cultural plant used historically or in contemporary practice.
Claim of Indigenous Sovereignty and Jurisdiction: Many First Nations assert inherent jurisdiction over their lands, arguing that federal and provincial cannabis laws (e.g., the Cannabis Act) do not apply on reserve lands without their consent.
Community Laws: Some communities, like Six Nations or Tyendinaga, have developed or are developing their own cannabis regulations, asserting that these take precedence over federal or provincial laws. For example, Six Nations has issued licenses for cannabis production under its own laws, challenging the need for federal or provincial approval.
Defense Tactic: The dispensary may argue that operating under band council approval or community cannabis laws constitutes an exercise of self-governance, rendering provincial or federal enforcement (e.g., raids) an infringement on Indigenous sovereignty.
Challenging Federal and Provincial Jurisdiction:Constitutional Challenge: Dispensaries often file a Notice of Constitutional Question to challenge the applicability of the Cannabis Act and Excise Act on reserve lands. They argue that these laws infringe on treaty and Aboriginal rights by imposing external regulations on Indigenous economic activities.
Historical Context: Defendants may present evidence (e.g., expert reports) to demonstrate that cannabis or similar plants were part of pre-contact trade or medicinal practices, though courts have often rejected such claims for lack of sufficient historical evidence. For example, in R. v. Marshall et al., the Nova Scotia court found insufficient evidence to support a treaty right to trade cannabis, as there was no proof of pre-contact cannabis cultivation or sale.
Push for Stronger Evidence: Courts have indicated openness to “stronger” arguments with robust historical or cultural evidence, so dispensaries may bolster their case with expert testimony or community oral histories to establish cannabis as part of traditional practices.
Economic and Reconciliation Arguments:Economic Development: Dispensaries often frame their operations as exercises of economic self-determination, aligning with broader Indigenous goals of economic independence. For instance, the Oneida Nation of the Thames has pursued cannabis as part of its economic strategy, arguing that licensing requirements undermine sovereignty.
Reconciliation: Defendants may argue that federal and provincial cannabis regulations perpetuate colonial exclusion from economic opportunities, citing the need for reconciliation and recognition of Indigenous rights in the cannabis economy. This aligns with calls from First Nations leaders for amendments to the Cannabis Act to grant jurisdictional control.
Community Benefit: Dispensaries like Northern Superior Cannabis in Michipicoten First Nation emphasize that profits benefit the entire community (e.g., funding infrastructure or education), strengthening the argument that their operations align with treaty-protected economic rights.
Public Health and Cultural Context:Medicinal Use: Some dispensaries argue that cannabis is a traditional medicine, aligning with treaty rights to trade medicinal plants. This was a key argument in cases like Chris Googoo’s, where cannabis was framed as a medicine under Aboriginal rights.
Cultural Relevance: Defendants may draw on community-specific cultural practices or intergenerational trauma (e.g., as noted in Health Canada’s engagement with Indigenous partners) to argue that cannabis regulation should be community-led to address unique public health needs.
Defense Tactic: By emphasizing culturally appropriate regulation, dispensaries challenge the one-size-fits-all approach of the Cannabis Act, advocating for Indigenous-led frameworks.
Precedents and Community Support:Case Law: While courts have often rejected treaty-based defenses (e.g., R. v. Marshall et al. in 2024), dispensaries may draw on successful precedents like fishing or hunting rights cases (R. v. Marshall for Mi’kmaq fishing rights) to argue for analogous trade rights.
Community Backing: Support from band councils, community consultations (e.g., Millbrook First Nation’s report on sovereign cannabis regulations), or organizations like the Mi’kmaq Cannabis Association can strengthen the defense by showing community consensus on asserting these rights.
Public Advocacy: Rallies, as seen in Googoo’s case, or backing from figures like Chief Del Riley (former National Indian Brotherhood president) can frame the defense as part of a broader Indigenous rights movement.
Challenges and Court ResponsesJudicial Skepticism: Courts, like in R. v. Marshall et al., have dismissed treaty-based defenses as “manifestly frivolous” when evidence is lacking, particularly if there’s no proof of pre-contact cannabis use or trade.
Evidentiary Burden: Defendants must provide robust historical or cultural evidence, which has proven difficult, as cannabis was not historically documented in pre-contact Indigenous practices in Canada.
Provincial vs. Federal Jurisdiction: Courts often uphold that provincial and federal laws apply on reserves unless a clear treaty or Aboriginal right is proven, complicating sovereignty-based defenses.
Community Division: Some First Nations leaders, like Chief Bob Gloade in 2019, initially argued that treaties do not cover cannabis sales, though community consultations have shifted toward supporting sovereign regulation.
Strategic ConsiderationsEngage Expert Testimony: Retain historians or anthropologists to provide evidence of cannabis or analogous plant use in traditional trade or medicine.
Community Regulation: Develop and document community cannabis laws to strengthen sovereignty claims, as seen in Six Nations or Millbrook.
Political Advocacy: Push for amendments to the Cannabis Act during legislative reviews (e.g., the 2021 review) to recognize First Nations jurisdiction, as suggested by leaders like Chief Scott McLeod.
Negotiation with Governments: Pursue agreements with provinces, like Shxwhá:y Village’s partnership with British Columbia, to operate within provincial frameworks while asserting sovereignty.
Public Support: Leverage community rallies or media to frame the case as part of broader Indigenous rights, as done by Chris Googoo.
ConclusionThe defense strategy for a First Nations ma*****na dispensary typically centers on asserting treaty and Aboriginal rights under Section 35, emphasizing sovereignty, and challenging federal/provincial jurisdiction. Key treaties, like the 1752 Peace and Friendship Treaty, are invoked to claim a right to trade cannabis, often framed as a medicinal or economic activity. However, courts require strong historical evidence, which has been a barrier. Dispensaries strengthen their case by aligning with community laws, engaging expert testimony, and advocating for legislative changes to recognize Indigenous jurisdiction.
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