Drafting And Monitoring Regional cannabis law

A new cannabis shop scheduled to open soon in London will function outside of federal and provincial regulatory systems — with a cultivation plant to follow.

"The Witset First Nation has an intrinsic and constitutionally guaranteed right to self-government over their citizens, their economy and their territory," Kyah Development Corporation CEO Trevor Morrison said in an email. "The Witset First Nation takes the view that this includes a right to govern exclusively cannabis-related activities from seed to reserve land, and that right is protected by section 35 of the Constitution Act, 1982."

Witset has recently become the seventh First Nation to collaborate with Indigenous Bloom, a First Nations and Indigenous Peoples Cooperative engaged in the production and retailing of medicinal and recreational hemp and cannabis products in B.C.

B.C. In an email. The Attorney General 's Ministry (AG) confirmed that existing Indigenous Bloom operations are unregulated for the Province.

"Indigenous Bloom has no licence from the federal government to produce cannabis, and has no access to legal cannabis from licenced producers, so its product is unregulated," the ministry said.

"The province currently does not have any Indigenous Bloom stores licenced to sell non-medical cannabis."

Indigenous Bloom was already operating on the Kwaw-Kwaw-A-Pilt First Nation (Chilliwack) when on 17 Oct. 2018 cannabis became lawful for recreational use. As many First Nations across the country have done, including Witset, Kwaw-Kwaw-A-Pilt quickly wrote its own cannabis law to replace Canada's Cannabis Act.

In fact, the Witset Indigenous Bloom operation will become part of a growing cannabis cultivation and retailing network of First Nations on-reserve that currently numbers more than 160 nationwide.

Cannabis Control Law (CCL) of the Witset First Nation

Morrison said Witset passed its Cannabis Control Law (CCL) of the Witset First Nation on April 22, and was designed to meet or exceed federal and provincial standards.

"The Cannabis Law was designed to protect members of the Witset First Nation and anyone else involved in the cultivation, sale, possession or consumption of cannabis on reserve land, and the law includes explicit safeguards in respect of sales to minors and the credibility of a person applying for cannabis cultivation and retail licences," he wrote.

Darwin Douglas, councillor for the Cheam First Nation, who assisted Kwaw-Kwaw-A-Pilt with Indigenous Bloom, explained that many First Nations take the view that pot production, distribution and sales are protected under the Constitution and UNDRIP provisions on self-determination and self-governance.

Under the federal-provincial deal, marijuana distribution was technically established as provincial responsibility, and excise tax revenues were divided between provinces (75%) and Canada (25%).

"The province has no authority over First Nations territories," said Douglas, "which is why some of the First Nations have enforced their own cannabis laws locally."

While the office of the AG made it clear that Indigenous Bloom operations on reserves fall outside federal and provincial regulations, it appears that the Province is walking slightly on the issue.

The Community Safety Unit (CSU) is responsible for regulation of the Cannabis Control and Licensing Act (CCLA) of B.C .. Numerous unlicensed dispensaries in the province have been shut down by the CSU but largely unaffected on-reserve outlets so far.

"When carrying out compliance and enforcement activities, the CSU works with Indigenous communities in consideration of their local needs and interests," the AG Ministry said. "There is understanding that needs and desires can differ from community to community."

Perhaps a jurisdictional showdown was inevitable after the government ignored a warning in a report from the Senate Standing Committee on Aboriginal Affairs that First Nations could have jurisdiction over cannabis production, distribution and sale.

The government responded to Senate questions regarding jurisdiction by stating that the Cannabis Act is a law of general nature, like the Criminal Code, which extends to all Canadians, including indigenous peoples, and that indigenous cannabis growers and sellers will need to obtain the required federal and provincial licences.

It said First Nations communities could address local control issues in the same way that municipalities were given control over whether and where dispensaries and manufacturing facilities can be located within their communities. It said concerns about revenue generation could be addressed by implementing the First Nations General Services Tax Agreement or by property taxes for First Nations governments.

Skeena-Bulkley Valley MP Taylor Bachrach said the government has failed to properly consult First Nations, which he said may be why the feds are also treading on the issue very lightly.

"When it comes to cannabis on property, it does seem that there is a relatively wide grey area in the federal regulatory strategy," he said. "In my opinion this should have been sorted out by the federal government before the Cannabis Act passed."

He was also raised concerns about the safety of unregulated cannabis products, Bachrach said.

Morrison has excepted any suggestion products made or sold on the reserve will be the highest standard of anything but.

"The Witset First Nation will take all steps under its Cannabis Law to ensure that the quality of the cannabis grown, packaged, processed and sold on its reserve land meets or exceeds federal and provincial standards," said Morrison.

Indigenous Bloom also insists that their standards are as high or higher than those set out in the federal law.

"As a company, we pride ourselves on compliance with regulations and product standards," states the company's website. "We make sure to meet or exceed all Health Canada standards and guidelines using state-of-the-art equipment and high-end manufacturing facilities."

Bachrach believes that uniform standards are important but should not be unilaterally reached.

"There has been a lot of frustration from First Nations who have not felt consulted and at the same time we have this real situation where we have the potential for real divergent on- and off-reserve standards," he said.

"It seems to me it would be better to have consistent standards across the board, but to get there, there must be concerted discussions between can legal advice be shared the federal and First Nations governments."