After Cannabis Retail Partnership Scrapped, Long Plain First Nation Wants To Take on Manitoba In Court
With Manitoba scrapping a planned cannabis retail partnership with Long Plain First Nation and Long Plain officials promising a lawsuit, Canada may be moving toward its first federal-Indigenous court battle of the post-legalization age. If that’s the case, Long Plain First Nation will have a challenging case to make.
Cannabis retail on First Nations reserves is a complicated affair. Broadly speaking, there are two issues. One debate is over whether or not to follow the federal cannabis laws and regulations as laid out by Health Canada and the 2018 Cannabis Act. The second is whether or not to cooperate with provincial laws and authorities, given First Nations have few to no jurisdictional relationships with the provinces. Each debate is driven by passionate, informed voices on all sides, and in both lies the capacity for escalation.
Manitoba Cancels Retail Licence For Long Plain First Nation
In late May, Manitoba’s Liquor, Gaming and Cannabis Authority, along with Manitoba Liquor & Lotteries, terminated their plan for a partnership with Long Plain First Nation to open a Meta Cannabis Supply Co. store in Long Plain urban Reserve lands (located within the city of Winnipeg). In the process of ending the agreement, LGCA also canceled the store’s retail license—though there was no allegation of non-compliance at the store itself.
Though the LGCA’s press release announcing the end of the deal claims Long Plain First Nation “failed to respond to efforts to collaborate with both” LGCA and Liquor & Lotteries, the principal point of contention seems to be “the continued ongoing sale of unregulated cannabis from an unlicensed store on the First Nation’s Keeshkeemaquah reserve,” an hour west of Winnipeg.
Sides Say Consumer Safety, Sovereignty Are Issues
LGCA and Liquor & Lotteries officials stress that unregulated cannabis sold on reserve could present a threat to consumer safety. “Protecting the integrity of Manitoba’s cannabis licensing-framework is a fundamental priority,” argues LGCA CEO Kristianne Dechant.
The issue for Long Plain, however, is one of sovereignty. Band leadership published a statement through its Arrowhead Development Corporation arguing it has the right to independent cannabis production under Section 35 of the Canadian constitution (which protects the general category of “Aboriginal Rights”), the First Nations Land Management Act, and the UN Declaration on the Rights of Indigenous Peoples. Long Plain has adopted its own cannabis law, under which it argues Long Plain First Nation has an “inherent right to self-determination, which includes the right to exclusively govern cannabis-related activities on-reserve.”
The statement by Long Plain First Nation argues Canada failed to include Indigenous interests during the rushed lead up to legalization in 2018, forcing First Nations “to exercise their jurisdiction in respect of cannabis to fight for access to this market.”
As for consumer safety, the statement argues, “The standards adopted by the Long Plain First Nation [including those for Indigenous Bloom] meet or exceed health and safety standards established under federal and provincial laws.”
Though the band says it set out with the intent to work with Canada on a nation-to-nation basis to operate within their respective legal systems harmoniously, it does not intend to back down from a fight.
“There will be a price to be paid,” Chief Dennis Meeches told the Winnipeg Free Press. He believes one issue that led to the termination of the agreement was Long Plain First Nation’s refusal to pay a provincial six percent “social responsibility fee” on revenue from cannabis sales. Many First Nations leaders see such a fee as an infringement of treaty rights, while the fact that the law derives from provincial authority is a sticking point to Nations whose jurisdictional relationships exist mostly or only with the federal government of Canada.
“There are a lot of moving parts to this story,” Meeches said. “When legalization of the cannabis industry first happened we thought initially there would be an opportunity to look at mirroring the tobacco rebate program and we would have been fine with that.”
Instead, Meeches expects to see Manitoba in court.
The Potential Argument
Anishinaabe (Ozaawaagiizis’okwe) lawyer Naomi Sayers, based in Sault Ste-Marie, isn’t sure how invoking Section 35 of the constitution to defend cannabis might play out in front of a judge. Though she is not familiar with the situation between Long Plain First Nation and Manitoba, she says any constitutional defence of cannabis cultivation and consumption as a traditional practice will face an uphill battle.
“In order to bring that to court and have a court make a finding on it,” Sayers tells Cannabis Health, “you have to have a specific type of evidence that would support that claim. Historically, it’s been very hard to prove traditional practices as connected to an Aboriginal Right under Section 35 of the constitution. We know that because of the case law that has resulted from Section 35 litigation being litigated all the way up to the Supreme Court of Canada. We have to put [cannabis arguments] in that context.”
‘Traditional Practice’ Argument May Not Hold Up
In order to prove something is a “traditional practice” subject to Section 35 of the constitution, courts expect First Nations to show a pattern of historical practice going back over many generations.
“There’s usually expert evidence that’s relied on,” Sayers explains. “Expert evidence from Elders, evidence from current practices in the community. We have to really look at what they have been doing—from before, up to now.”
Sayers stresses she does not necessarily agree with this process of argument—just that this is the legal circumstance created by previous cases. She understands that for many communities, the end of cannabis prohibition is similar to the ends of racist laws that banned traditional practices like Potlatches and pow-wows, as well as traditional ceremonies and spirituality.
As laws banning traditional practices were scrapped, communities openly took the practices up again, so it’s hardly surprising to see First Nations embracing the cannabis market. But the use of cannabis for medicine is often considered modern and separate from historical approaches to plant-based medicine.
“Previously, in those analogies, you had [communities] still engaging in the [traditional] activities, except they did them underground,” Sayers stresses. “It would be hard to prove that [medicinal cannabis] use was happening if there isn’t evidence of it happening.”
Those arguments will come later, if and when Long Plain files suit against its former provincial partners.