THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Tuesday, October 25, 2022
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 9:04 a.m. [ET] to examine the federal government’s constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Métis peoples and any other subject concerning Indigenous Peoples.
Senator Brian Francis (Chair) in the chair.
[English]
The Chair: Honourable senators, I would like to begin by acknowledging that the land on which we gather is the traditional, unceded territory of the Algonquin Anishinaabeg people whose presence here reaches back to time immemorial. I am Mi’kmaq senator Brian Francis from Epekwitk, also known as Prince Edward Island, and I am the chair of the Committee on Indigenous Peoples. Before we begin our meeting, I would like to ask committee members in attendance to introduce themselves by stating their name and province or territory.
Senator Arnot: Good morning. I’m David Arnot from Saskatchewan.
Senator Hartling: Good morning. I’m Nancy Hartling from New Brunswick.
Senator Lovelace Nicholas: Good morning. I’m Senator Sandra Lovelace Nicholas from New Brunswick, Wolastoq territory.
Senator Christmas: Good morning, everyone. I’m Senator Daniel Christmas from Nova Scotia, from the Membertou First Nation.
Senator Coyle: Good morning, everyone. I’ll continue that East Coast Mi’kma’ki connection. I’m Mary Coyle from Nova Scotia.
Senator Tannas: Scott Tannas from Alberta.
The Chair: Good morning, everyone. Thank you for joining us. I’d like to ask witnesses joining remotely to keep their microphones muted at all times unless recognized. Should any technical challenges arise, please let us know in the Zoom chat. I’d also like to remind everyone that the Zoom screen should not be copied, recorded or photographed. However, official proceedings can be shared via the Senate’s website.
Today, we are here to continue our study on the federal implementation of the Cannabis Act as it relates to Indigenous people in what is now known as Canada.
The meeting is divided into two panels. I’d like to introduce our first witnesses for panel one. From the First Nations Chiefs of Police Association, Edward Lennard Busch, Executive Director; from the Six Nations Police Service, Rob Monteforte, Detective-Sergeant, Drug Enforcement Unit; and from the File Hills First Nations Police Service, Jeff Laforte, Staff Sergeant.
Each witness will provide opening remarks of approximately five minutes. We will then move to a question-and-answer session of approximately five minutes per senator. Since we have a limited amount of time, I ask everyone to keep their interventions as precise and brief as possible. To avoid interrupting or cutting anyone off, I will indicate when witnesses or senators have one minute left on their allocated time. In the event witnesses are unable to answer a question in full, I ask them to send a written response to the clerk before Friday, November 4, 2022.
Edward Lennard Busch, Executive Director, First Nations Chiefs of Police Association: Good morning from Alberta. As stated, I’m the Executive Director for the First Nations Chiefs of Police Association —
The Chair: I am sorry, Mr. Busch, but I will have to interrupt. We have sound issues here. We will be with you shortly. Sound quality is an issue and we’re unable to proceed because the interpreters are unable to interpret what you’re saying there.
Unfortunately, due to technical issues we will not be able to hear from Mr. Busch. My apologies. We will go on to Mr. Monteforte for his remarks.
Rob Monteforte, Detective-Sergeant, Drug Enforcement Unit, Six Nations Police Service: Good morning, everyone. My name is Rob Monteforte. I’m the Detective-Sergeant in the Drug Enforcement Unit for the Six Nations Police Service. I’ve been in the unit for the past three years.
In relation to the Cannabis Act, the last warrant we’ve dealt with would have been last year, approximately in the summer. We have had good experiences overall in obtaining Cannabis Act warrants and the execution of them. The issues we have in our community include the fact that we have about 30 illicit cannabis shops right now throughout the territory. Our band council formed the Six Nations Cannabis Commission due to the enactment of the Cannabis Act. When the Cannabis Commission implemented their own self-regulated Cannabis Control Law, due to the delay, we had a number of cannabis dispensaries open. We did enforcement on those. As a result of that, we had a lot of backlash from the community, which resulted in some protests.
Overall, in the community, we don’t get many complaints about the cannabis shops. We’re only a three-person drug unit on Six Nations, and the bulk of our time goes toward fentanyl trafficking, so we rarely have time to deal with any of the Cannabis Act stuff. If we do get information that a dispensary may be dealing other illicit substances, we will look into that and enforce it. But as of right now, due to our manpower and, as I said, the issue with fentanyl on the reserve, we haven’t had anything with the Cannabis Act since last year.
In my experience with the court process related to the Cannabis Act, no one receives jail time and it’s anywhere from a $1,000 to $5,000 fine. A lot of these dispensaries make that in a day. The majority of the dispensaries open the same day or the next day after we execute a search warrant on the premises.
That’s where we’re at. On the enforcement side, when it comes to court, we’re not seeing any real action. For our resources, spending a week conducting surveillance and executing a search warrant, processing exhibits and going to court for a fine, we just don’t have the time to deal with any of that right now.
The Chair: Thank you, Mr. Monteforte. We were going to go to Mr. Laforte, but he is not with us at this point, so we will go to questions.
Before we do, I would like to ask members in the room to please refrain from leaning too close to the microphone or remove your earpiece when doing so. This will avoid any sound feedback that could negatively impact the committee staff in the room. The floor is now open for questions.
Senator Tannas: Thank you very much for being here. You mentioned 30 shops in operation on-reserve. Do you have any estimate as to the percentage of folks coming from off the reserve to buy marijuana at the shops versus on-reserve customers?
Mr. Monteforte: Based on our observations when we conduct surveillance, we find that the shops on the outskirts of the reserve that are closer to the city or other counties have a larger number of non-Indigenous persons coming to purchase cannabis. For some of the shops we have in the heart of the reserve, it’s more of the people in the community going to it.
Everyone likes a shorter drive. You can go right there and buy it and you’re back out, similar to the gas stations and the smoke shops; everyone likes to hit the first one and they’re back out. We don’t see a lot of traffic at the ones in the heart of the reserve.
Senator Tannas: Thank you.
Senator Christmas: Thank you very much, Mr. Monteforte. In Six Nations, do you consider cannabis a major issue in the community? Have things changed since the Cannabis Act was enacted back in 2017?
Mr. Monteforte: I don’t see it being a major issue at all. Like I said, we get very few complaints. The odd time we’ll get someone calling in about a smell, but overall our major issue currently is fentanyl on the reserve. In regard to cannabis, we don’t even look at it, unless we hear that the shops are dealing other illicit substances. There’s nothing in regard to any kind of overdoses from products purchased from these shops.
The issue we do have is how they display products. If you go to a regulated cannabis shop off the reserve, it’s similar to cigarettes, where if they’re gummies, it’s just plain packaging. On the reserve, cannabis gummies might say Skittles or Smarties. A small child may see that, and if they’re not able to read, they may very well take one of those. That is a concern. We haven’t had that happen yet, thankfully. The only issue I see is how it’s packaged down here. That’s the problem we have, but that’s it.
Senator Christmas: Since the enactment of the Cannabis Act, have there been any associated or related crimes with the introduction of the act? Is it possible those 30 illegitimate shops may be a gateway for other drugs?
Mr. Monteforte: I would say for sure. Any time you’re dealing with cannabis, it could be used for organized crime, but again, not to our knowledge that we’re aware of. We did have an issue with some non-Indigenous people from the Greater Toronto Area who opened a dispensary. When we see something like that, we execute a search warrant on that dispensary and the people haven’t been back. We did see that. They’re trying to come onto the territory and open shops on people’s properties, but it’s not so much an issue right now.
There have been a couple of dispensaries that were robbed at gunpoint, but no more so than smoke shops that have been robbed.
Senator Christmas: Have there been any issues or difficulties in dealing with people intoxicated or impaired by cannabis? Do you have the training or equipment to detect that?
Mr. Monteforte: We do have officers who are trained. If we conduct a traffic stop or we believe the person may be impaired while operating a motor vehicle, the Ontario Provincial Police will assist with conducting field sobriety tests for us in relation to that. I know a couple of charges have been laid but nothing on a regular basis in relation to cannabis and being intoxicated in public or hallucinating, for example. We haven’t come across that.
Senator Lovelace Nicholas: Thank you for being here today. You claim these shops are illegal, but do they improve the economy of the communities?
Mr. Monteforte: As I mentioned before, the elected band council is self-regulated, so if there are shops that have applied through the band council to open a dispensary, we know where those products are coming from. In the other ones they call illicit cannabis shops, we have no idea where the stuff is manufactured.
I have seen at some of the dispensaries there that they do donations around Christmastime and stuff like that. For the other ones that I call illicit, we have no idea where these products are coming from or what kind of mixtures they have in them, whereas in the ones with the elected council, we know where they’re being manufactured, and if someone purchased anything from that dispensary that was an issue, we know where we can go to look into that.
Senator Lovelace Nicholas: Do you believe that the province should be involved in controlling these shops in any community?
Mr. Monteforte: I like how our band council has done it. On the reserve, I know a lot of Indigenous people, in relation to dealing with the Ontario government, may not feel comfortable in doing so. With us having it on our reserve, it’s pretty unique to apply with them and you’re only dealing with us on the reserve. I do see that persons would have difficulty dealing directly with the Ontario government. It was an issue here when we were raiding dispensaries because the Cannabis Act was out at the time and everyone deemed it to be legal. I think the delay in the band council coming up with their own self-regulation hindered the divide within the community on that. I hope that answers your question. I think they prefer to deal with us on the reserve than the actual government themselves.
Senator Lovelace Nicholas: Thank you.
The Chair: Mr. Monteforte, have you noticed a higher rate of usage among underage youth since the Cannabis Act came into effect? Is this consumption mostly coming from illicit purchases made by adults or from the illicit market?
Mr. Monteforte: Again, no more than usual that we would see with teenagers using marijuana. I know from playing local sports and being at the local venues here, I don’t come across it too often and it is not reported much, although it is more easily accessible now due to all the dispensaries. We’re not seeing an increase that’s been reported to us. Living in the community, it’s not what I see out there on a daily basis.
Senator Hartling: Thank you to the witnesses for being here. I really appreciate it. It sounds like you’re a busy person and you have lots going on there, especially with the fentanyl, which is still quite serious. There are a lot of things happening there.
Your role is probably very complex. How has the legalization of cannabis challenged your role? Also, in the community, have there been challenges that you see? I know you probably don’t have time to examine everything, but can you talk a bit about that, please? Thank you.
Mr. Monteforte: It is a unique role in the drug enforcement unit here. Anytime there’s an overdose, we would investigate. It’s a huge issue with prescription drugs, cocaine and fentanyl, and there are a number of overdoses. For us to spend any time on cannabis with a three-person team, it’s not realistic and not a good use of our time. When we come across or hear that a dispensary may have other illicit substances, pills or cocaine or fentanyl, that’s when we execute raids. We did one on a dispensary where we believe they may have been trafficking from there and we found cocaine residue and scales. It is very unique down here.
Senator Hartling: Do you have any recommendations on that for the government or for us?
Mr. Monteforte: Yes. For the number of search warrants we do for a three-person team compared to larger services, we’re doing warrants every couple of weeks. There are that many dealers down here. There is a lack of funding for us on the reserve and I’m sure in other Indigenous communities as well. I know a lot of other drug enforcement teams are 6-, 8- and 10-man teams. We’re doing a lot with very little, but it’s our community and we live here and we have to do it.
Senator Hartling: Thank you for your good work.
Senator Coyle: Thank you very much, Detective-Sergeant Monteforte. It’s wonderful to have your testimony here and we thank you for taking the time away from that vital work that you’re doing. I think we all hear you that you have to focus your efforts on the very serious issues of fentanyl and the other drugs you’re concerned about, overdoses and serious harms in the community.
We’re trying to get to this issue of harm. One of the purposes of the Cannabis Act was actually harm reduction, not an increase in harm in communities. Do you have any overall sense, since the act has been in place, of having seen anything directly related to cannabis that would cause you to say there’s more harm rather than the existing amount of harm, or less harm? I’d like to hear that.
There was a sense at one point that some people who may have used more alcohol previously might switch and use more cannabis now, and that actually might have a bit of a taming effect, particularly on violent actions, domestic violence and that sort of thing. Do you see any of those observations in your community?
Mr. Monteforte: No, there hasn’t really been a change since the Cannabis Act has been in place. For us, we still get a lot of alcohol-related instances. We do come across persons who may have alcohol and cannabis as well, but not that it’s mentioned in specific reports or that we see when officers are on the scene.
The only real issue we do have is the way it’s packaged down here with these dispensaries because it’s geared towards the younger population with products made to look like Skittles and Smarties. They have cereal that looks like Frosted Flakes and someone who didn’t read or take the time to read a THC symbol might consume that. That’s the fear we have, but we haven’t come across that and we haven’t seen any major changes since the Cannabis Act has come into place in our community other than the large amount of dispensaries, but people see it as an opportunity to make a living and that’s what happens.
The Chair: How has the level of funding available to your police service affected your ability to retain staff?
Mr. Monteforte: It’s huge. We should be funded for a six- to eight-man unit. With any police service, you have people off on long-term leave, there are injuries or persons may get seconded to other investigations in relation to residential schools. I know we have three to four officers off on that right now. Funding would be amazing to handle all these issues.
I know certain people have cannabis teams — the OPP has an actual cannabis team. With the funding we have and the three-man team, it’s just not possible. It’s something we’re looking forward to in the future. We’re in discussions right now for expanding our team and getting funded for that. It’s needed because we’re getting people from the GTA and other communities coming onto the reserve and setting up shop to deal in illicit drugs. It’s non-stop here.
The Chair: Thank you for that.
The time for this panel is now complete. I wish to thank Mr. Busch and Mr. Monteforte for joining us today. I apologize again to Mr. Busch for the sound difficulties, but we’ll invite him to submit something in writing to us as well.
For our next panel, we wish to welcome, from the Indigenous Bar Association, Drew Lafond, President; and from JFK Law LLP, Sara Mainville, Partner.
Each witness will be able to provide opening remarks of approximately five minutes. We will then move to a question-and-answer session of approximately five minutes per senator.
Since we have a limited amount of time, I ask everyone to keep their interventions as precise and brief as possible and to avoid interrupting or cutting anyone off, I’ll indicate when there is one minute left.
In the event that witnesses are unable to answer a question in full, I would ask them to send a written response to the clerk before Friday, November 4, 2022.
I now invite Drew Lafond to give his remarks.
Drew Lafond, President, Indigenous Bar Association: Good morning, members of the committee. Thank you for the invitation. [Indigenous language spoken]. I am attending here today in my capacity as President of the Indigenous Bar Association of Canada. We are a not-for-profit organization representing Indigenous lawyers, judges, academics and students across Canada.
I’m joining you today from the Coast Salish territory and I feel very privileged to be able to speak to this matter today.
In its report dated May 2018 in respect to Bill C-45 —
The Chair: I’m sorry to interrupt. Unfortunately, we will have to suspend. We have sound issues.
(The committee suspended.)
(The committee resumed.)
The Chair: Mr. Lafond, I would like to extend my apologies to you. I regret to tell you that interpretation is not possible due to insufficient sound quality, and as a result we cannot proceed with your testimony.
Please know that your testimony is very valuable to the committee. To ensure you can still be part of this study, I would like to invite you to please submit your opening remarks and any other relevant information in writing before November 4, 2022. Our clerk will reach out to you after the meeting today to advise you as to how to do this. Again, my sincerest apologies for this inconvenience, and I thank you very much for taking the time to join us today.
Now, I would like to invite Sara Mainville to give her remarks.
Sara Mainville, Partner, JFK Law LLP: Thank you. [Indigenous language spoken]
JFK Law LLP is a national Indigenous law firm, and I am working from our new Toronto office. We also have offices in Vancouver and Victoria.
I have been working with First Nations since I began my private law practice in 2005, including from my own First Nation, Couchiching, which now has an expanding First Nation-licensed cannabis retail store and a successful entrepreneur supporting a young family of six who is licensed to operate this store. He calls it The High Council, also known as THC.
My first nation regulates that store’s safe supply and product mix in order to legitimately and legally license cannabis. I have worked for some of the most difficult and promising situations. My clients include the great First Nation of Membertou, whom I love working for; as well as the Mohawks of the Bay of Quinte, who I’ve helped draft an interim cannabis law before legalization on October 17, 2018, and a more robust cannabis law through a 16-month community consultation process that resulted in a referendum in November 2019. While the vote was “yes” to regulate, it was clear that there were economic interests unwilling to be regulated by anyone in this process. That’s the problem, and it’s an opportunity lost.
You see, in Tyendinaga, the Indian Act gives no one a sense of protection or security. It also does not align with the Haudenosaunee’s traditional lawmaking process. For them, the Indian Act and the Cannabis Act live in colonialism. I have worked from 2016 to 2019 on moratoriums and prohibitions against on-reserve, unlicensed cannabis stores under the so-called Vancouver model of medical dispensaries. I have helped advise about band council resolutions to restrict the delivery of cannabis to reserve locations as well as assisted in obtaining provincial and federal licensing of community-owned cannabis projects. I am a former chief of Couchiching First Nation. I’m very aware of the lack of economic and social sustainability within the First Nation, and I entirely understand why grey markets are so attractive to First Nation entrepreneurs.
Cooperative federalism is a potentially progressive framework for cannabis reform in 2023. We can look at how Indigenous self-government is recognized and how jurisdiction is navigated within the former Bill C-92 for child welfare, self-government, or through the matrimonial real property law, or even in the Financial Management Board’s processes to build capacity in order to find solutions to the mischief of the Indian Act or any federal act of ignoring First Nation jurisdiction when reforming federal law.
It should not surprise you that a provincial police force has told one of my clients, in a video conference that I attended, that it is difficult to enforce the Cannabis Act on-reserve. The senior official said, “It’s like a game of Whac-A-Mole. You close one down, and three more open up.” Both First Nations policing and First Nation governance in southern Canada are very under-resourced. Therefore, it’s very much a losing proposition to try to enforce a federal or even provincial law against a grey market very much fuelled by large groups of people looking for tax-free, unregulated and cheaper high-tax products such as tobacco and cannabis.
One thing we have learned — that is, those of us who provide general counsel legal services to First Nations governments — is that the lack of enforcement is creating a breeding ground for grey market activity. I don’t want to stereotype First Nations. That’s the last thing I want to do. If we had the tools, First Nation governments could be models of productive, responsible and economically sustainable communities. The promise of cannabis’s green rush has been overexaggerated, for sure, but the promise of equity and opportunity has certainly not been made, either in 2018 or 2022, for Indigenous peoples generally and First Nations specifically.
There are social equity policies in many cannabis regimes, most notably in the state of California and in Oregon. The accelerator licence holder can help a social equity applicant in gaining the knowledge and technical capacity required on-site of a California-licensed facility in order to help the social equity applicant participate in the industry in the future. Let’s think about how that social equity applicant in Canada can bring their skills home to a First Nations jurisdiction.
We all know that the personal growers supplying the grey market came out of the medical cannabis regime. Many are creating better and less expensive products for First Nations stores licensed on-reserve. We see this predominantly in Alberta, Saskatchewan and British Columbia and also in First Nations in Ontario and Nova Scotia. Let’s not forget the roots of cannabis. The BC Bud Co and the growers across Canada have supplied safe recreational cannabis to otherwise law-abiding adults knowing full well the positive attributes of cannabis long before energy and high-tech companies rushed in front of the line for a big payday, or the promise of one, in late 2018. Many of my clients want to have licensed cultivation and processing facilities but lack the investment or the capacity to enjoy a highly regulated market. In fact, it’s those market suppliers that are best focused to serve the market, those personal growers and other entities grown out of the Vancouver model of dispensaries.
Like the delegated model of retail and distribution under the Cannabis Act, First Nations need to be seen as legal buyers of bulk quantities from licensed, personal growers. Licensed personal growers who have grounded attitudes of cannabis quality, health and safety do exist for First Nations to purchase from.
The licensed personal grower can help get First Nations licence activity outside of the grey market, away from nefarious elements who see First Nations reserves as lawless enclaves where police will dare not or will not enforce laws. Operating in the grey is not something that I advise for people as a lawyer. It is not where I want my First Nations clients to be. The lack of business services for these business entities is definitely a roadblock. Like the environmental racism in the past, certain activities being allowed on-reserve have left their impacts, both social and legal, on First Nations.
Jurisdictional racism — as I will call it — was flagged long before October 17, 2018. We have the legalization of gaming experience in our recent past. It would not take more than a junior policy researcher to discover the long and arduous journey of First Nations in Ontario, Saskatchewan, Manitoba and other jurisdictions who continue to work towards equity and recognition for their jurisdiction in gaming.
The major gift that keeps on giving is that Supreme Court of Canada case of 1996 R. v. Pamajewon, which stands for the legal rule that we cannot make general claims for the right of self-government. This hampers us in trying to create legitimate and legalized systems today.
There are better approaches. Bill C-92 is a not a perfect example, but it is one. There are other examples of jurisdiction discussions happening at various tables across Canada and with willing provinces. Relying on willing provinces is a problem in Canada. It creates inequity within the regions across Canada. That’s entirely a problem that is borne by First Nations.
Recognizing Indigenous knowledge is something we need to navigate. Negotiated agreements is really where we want to be. We can call it a coordination agreement. My elders like to call it a “harmonization of the administration of separate jurisdictions agreement,” as wordy as that is. It’s simply self-determination by us, for us.
Our laws and our sovereignty are not identical to Canadian laws and sovereignty. I would like to say that law’s role in Anishinaabe society is more about teachings and knowledge than enforcement and fines. The most important thing is to navigate this through legislative mandates. What law says and what law does are two very important things to Indigenous peoples. Meegwetch.
The Chair: Thank you, Ms. Mainville. The floor is now open for senators to ask questions.
Senator Christmas: Thank you very much for your extremely insightful and valuable testimony.
Ms. Mainville, I would like you to elaborate on a phrase you just used: “jurisdictional racism.” Do you consider the Cannabis Act as a piece of legislation that exhibits jurisdictional racism?
Ms. Mainville: It’s certainly something that I have experienced in my law practice. First Nations don’t have a boot strap in which to have negotiations with the federal government on jurisdiction. Some of the more progressive provinces — including Ontario, in the early days — did have section 44 of their Cannabis Licence Act and section 26 of their Cannabis Control Act. Those helped in negotiations between some of my clients with the government of the day at that time. It was also very expensive; exerting jurisdiction is a very expensive process.
One of the clients I mentioned, the Mohawks of the Bay of Quinte, went through the 16-month process of consultation, but they didn’t really have the tools. They had a bunch of naysayers who are making a lot of money in the grey market in cannabis who were fuelling misinformation as the band council was trying to create a form of law with all the uncertainty around it, especially around the Indian Act. It was very difficult and expensive and unfortunately a missed opportunity because now there isn’t an enforceable law in that community and there are at least three dozen grey-market cannabis stores in that community. I don’t think it is telling tales out of school to say that some of them are fuelled by organized crime.
Senator Christmas: Creating a legal framework for Indigenous communities in Canada to produce and to retail cannabis would be a challenge. One of the observations very early on in this process when we studied this bill in 2017-18 was the lack of jurisdiction this bill provides for Indigenous communities in terms of self-governance and self-government. If you had the opportunity to go back to 2017-18 and you had the opportunity to make provisions within the Cannabis Act for Indigenous jurisdiction and Indigenous governance of cannabis products, what would you recommend? What would you suggest as a way of creating that legal framework for Indigenous communities?
Ms. Mainville: It’s an entirely new innovation, but under section 69 where the provincial governments have delegated authority to licence, retail and distribution of recreational cannabis, there’s a requirement that they have to abide by the goals of the Cannabis Act. One of the goals could have been Indigenous participation. If that goal were there, then the provincial regimes would have done more than Ontario and B.C. have done with section 144. I’ve seen and worked on some of these agreements and it’s really not making a lot of accommodations for First Nations jurisdiction inside of these agreements. I’ve seen the Kahnawake MOU with Health Canada in its information sharing and its expertise sharing and some capacity transfer, but it’s not jurisdiction sharing or recognition of jurisdiction in any way.
Senator Christmas: Thank you very much, Ms. Mainville.
Senator Arnot: I want to build on what Senator Christmas and the witness have already started, just to get some clarification. Thank you, Ms. Mainville.
I’m making an observation. The honour of the Crown is a very high standard, and it seems to me that high standard is in breach in relation between federal governments, provincial governments and First Nations governments. You’ve mentioned jurisdictional racism. I think it’s fair to say we’ve heard in this committee on this issue about long-standing systemic racism, which does not give First Nations governments the proper recognition for jurisdiction. I’m wondering if this committee should reference that this blatant systemic racism is alive and well and it’s one of the impediments to having proper recognition of First Nations jurisdiction and it has a crossover with a number of other issues, certainly not just the cannabis issue.
It seems to me there’s a role for the federal government to play in taking leadership in addressing what this really is and making room for First Nations jurisdiction between the provincial Crown and the federal Crown. I’d like you to comment on anything you think we can do in this report which would accelerate that and really call out the federal government to take a stronger leadership view. I realize you’ve just answered a portion of that question, but anything you can say in addition would be helpful to me. Thank you.
Ms. Mainville: I think there’s probably a recipe here that involves several ingredients, and one of the major ones is that there are ideas from different Indigenous groups. Specifically, I think of my clients in B.C. who are really pushing a willing provincial government to do more on this side. I think there are some good ideas jurisdictionally that could be helped by a willing federal government as well.
The other thing is this: Who’s advising the governments? I find that my experience when working on legislative reform — and I’ve had a few, including working on the Impact Assessment Act — is there are not believers on your side about the fact that there is inherent First Nations jurisdiction and there needs to be more believers of that fact on the side of the legal advisers that are informing the Department of Justice. I think there have been some inroads, but you have to decide. There are for sure different of flavours of lawyers across Canada and you really have to decide which flavour will be advising the Crown government when they’re sitting across the table in negotiating legislative reform. I’m assuming there are a few believers on the side of Canada when the act for child welfare reform was created, formerly Bill C-92, and more of that has to happen as part of the ingredients.
The third is that, generally, the economic prospects are so diminished for First Nations on-reserve in terms of infrastructure and all of those things. Until we actually get to fundamentally erasing systemic racism for First Nations communities, we are still going to have the prospect of the attraction of grey markets and doing things a little bit differently, skirting the law in order to afford more economic opportunity. That’s definitely a blight for all of us.
Senator Arnot: Thank you.
Senator Coyle: Thank you very much, Ms. Mainville. Your testimony has been absolutely enlightening and very pertinent to our study here.
As you know, the government is charging an independent expert panel with leading the legislative review of the Cannabis Act. Our interest here today with you is looking at both the impacts, positive and negative, and — as you rightly have identified — opportunities gained or lost for communities. You’ve talked about the importance of jurisdiction and you’ve talked about how expensive it can be to have to assert your jurisdiction as a First Nations community. If we had in the original Cannabis Act the identification of the cooperation with Indigenous communities and the goal of creating economic opportunity with Indigenous communities, you’ve spoken about capacity and some of the very interesting things that have been done in California and Oregon in terms of capacity development for new entrants to the industry.
With this legislative review coming up — it will be five years in with this law — what are the things that you think absolutely need to be paid attention to in that review? If you were talking to that expert panel right now, what would your top items be for them to look at in terms of improving? It wasn’t perfect, it isn’t perfect and in fact, it caused a lot of problems. What can be done at this stage to change things to improve going forward?
Ms. Mainville: I would love to have a few days and a couple of associates of mine to work on answering that for you.
Yes, there is a lot there. I would like to reconsider — especially for the First Nations market and the First Nations access to market — cannabis as a pharmaceutical product. I think that has created the barriers to participating in this industry because of the standards related to how recreational cannabis is cultivated and processed.
Frankly, I think folks — I don’t know what they call themselves; cannabis connoisseurs, perhaps — will tell you the reason that they leave Toronto and go to Alderville or Tyendinaga is because they enjoy that product much more. It is like Oregon or California. It is an agricultural product. It is something that is consumed as a plant, not as a pharmaceutical product. That’s where the connections between British Columbia and First Nations as far away as Nova Scotia have been fostered.
One of the things that we have to talk about is how to legitimize and legalize the transportation from good sources of supply of this agricultural product to First Nations and legitimize that market. That’s different from the Health Canada-produced, cultivated and processed market. It’s quite different.
I would ask the expert panel to go and talk to Seven Leaf and talk about their journey through the Health Canada system in trying to make that a success story. There’s definitely a lot of time and effort that company has made to follow the rules, and they are resorting to First Nations markets and trying to create avenues to supply First Nations markets, because they have not been successful in responding to RFPs, from my vantage point. I’m not entirely sure, but I would really like the expert panel to talk to them and I’d really like the expert panel to talk to some of my clients.
I always talk about the great First Nation of Membertou. They’re doing great work. They will have a cannabis law early next year, and they’re doing their consultation and discussion and all the right things. They’ve always had that economic lens that’s certainly bang on, and they’re going to get this right. I would like the expert panel to talk to them.
I’m leery about speaking for myself, because I represent clients, but this is what I’ve learned from them, and I’ve learned quite a bit.
Senator Lovelace Nicholas: Thank you very much.
I’m mostly concerned about the people living in the communities. A lot of them are on social assistance. They don’t have vehicles. They’re practically stuck in the community. How much would a licence cost them?
Ms. Mainville: The licensing process was focused on how much money was to be made in the cannabis industry as forecasted in 2017 or 2018. A former client of mine does have an entire cannabis store on their reserve, and they’ve had to license through the Ontario legislation.
We’ve made some inroads with the Ontario government as far as a discount on the wholesale price for the store so that they can compete against the neighbouring First Nation-licensed store. Still, it’s quite expensive. It’s about $25,000, and I have to say that’s just to be licensed. The entire project was about a half a million dollars.
That’s because, unlike in Toronto or other municipalities, there’s a storefront there. For First Nations across Ontario and other provinces, there may or may not be a storefront. There may or may not be infrastructure. These are half-million-dollar projects just to open up a retail store, for sure.
Senator Lovelace Nicholas: Thank you for your answer.
Senator Hartling: Thank you, Ms. Mainville, for your wonderful presentation. I wish we could spend a whole day with you. You have so much knowledge and passion, but I’m sure at times it must be very frustrating, because you have all this knowledge and understanding of what should happen.
I liked some of the things you were saying. You mentioned cannabis being an agricultural product. It sort of fits with the First Nations’ understanding of the way they work with nature, and I like that.
You also talked about the social equity policies, and I’m wondering how you would see that maybe working in Canada. Tell us more about that and how it could possibly work here.
Ms. Mainville: The first innovation I talked about is having one of the five major goals of Canadian cannabis legalization policy being Indigenous participation or Indigenous and Black participation. Those are the segments of society that have been most impacted by cannabis criminalization in the past.
There are some specific reforms. New York legalization is looking at specific reforms that will help equity investment and other investments into the cannabis industry that they’re legalizing. California has some interesting innovations, I think, that work well with the marginalized populations that they serve to participate in the business of commercial cannabis activity, and I think that’s helpful.
I like the one program that I mentioned in my opening remarks, because I think it demystifies cultivation by having a requirement that some of the licensees should allow in social equity applicants who want to do similar activities and allow them to learn in those facilities that are licensed by Health Canada.
There are several different ideas that work out there. We haven’t even looked at what’s happening in other countries in South America and the Caribbean that are looking at legalization. There are very interesting reforms.
I think one of the things that everybody has learned from the cannabis experience in Canada is that there’s going to be a whole host of folks who have the capacity to skip to the front of the line that may or may not have any business doing so. I think you see those bigger companies that have opened and closed doors since 2018, and you wonder if what we were incentivizing at the time wasn’t a mistake at the cost of social equity in cannabis policy.
Senator Hartling: Thank you. I think what you’re recommending is that they look at some of these programs as they’re doing the review more broadly and maybe understand what might work better here in Canada.
Do you have any information on New Brunswick and what’s going on there? That’s where I live. I’m just wondering if you have any intelligence on that.
Ms. Mainville: Other than having a potential client who was looking at the sale of the stores and was interested in purchasing them, I haven’t really looked at it.
The approaches, to me, have all been test marketing ideas. Some work, some don’t and some are very expensive test-marketing processes.
One of the things that I’ve often seen is that you get someone from the old grey market and black-market regime and they know what’s happening. They know what sells. They know what works. That’s one of my major understandings from this entire process is those folks that are personal growers in B.C. and other parts of different provinces — mostly in the South — are a tremendous wealth of information about who’s buying, what they’re buying, what works and the type of information needs that they have. My clients who partner with those folks tend to work. There’s a safe supply in First Nations. They’re good products, and they sell.
Senator Hartling: Thank you very much. Keep up the good work.
Ms. Mainville: Meegwetch.
The Chair: Ms. Mainville, how can the delegated authority model in An Act respecting First Nations, Inuit and Métis children, youth and families inform the legislative review of the Cannabis Act?
Ms. Mainville: The recognition of jurisdiction in section 18 was helpful. That being said, my firm is involved in the Supreme Court challenge by the Province of Quebec.
The major thing is that there have to be incentives for provinces to engage with First Nations, Inuit and Métis on jurisdiction. We can look at very successful models. We can look at the Saskatchewan Indian Gaming Authority as a model.
Unfortunately, Drew Lafond isn’t here to testify in front of you. One of the major things he says is that his clients were told, “You don’t have the capacity to regulate. It’s too hard.” And then, learning that it was actually three people in the province of Saskatchewan regulating, it couldn’t have been too hard if three people were managing for the entire province.
Those types of experiences and real models that can be learned from gaming and child welfare, I think that’s an important and rich area of study that’s happening in real time across Canada.
Senator Christmas: Thank you again, Ms. Mainville. I appreciate your mentioning the community of Membertou. Before coming to the Senate, I worked for the community for many years.
You’re perfectly correct; the community there had a referendum about the whole question of cannabis retail stores in the community. Among the options, the community decided to self-regulate the retail of cannabis. Since Membertou is an urban First Nation within a large urban area, there’s definitely still a strong market, and I think the community’s desire to self-regulate is the right way to go.
You’re correct; the community is in the process of engaging the community in developing an appropriate law. I thank you for your assistance with that.
I want to approach this in a different way. What would be the benefits to Canada, to provinces and to First Nations if there were a proper Indigenous jurisdictional framework for cannabis?
Ms. Mainville: I think there would be a threefold benefit. The first is that there would be a real stemming of black-market cannabis if this level of First Nations integration were allowed to happen and allowed to foster that element of personal growers who, frankly, hate Health Canada-licensed cannabis. They just hate it. To be able to produce and to offer through a legitimate source of supply through First Nations governments, it’s a partnership that’s already working, but it’s a partnership that will stem black markets for sure. It’s that same type of cannabis that you can only get through grey or black markets. You will not see that level of quality or satisfaction for the cannabis connoisseur.
The other thing is economic development. I think I mentioned this once or twice: the lack of economic opportunity in general in First Nations. I know there are several that find themselves luckily in urban centres and have more market capacity, but several don’t and they have to make their own market choices based on a lack of opportunity.
This would create some opportunity, especially for the mid-sized First Nation that maybe serves a smaller population of 20,000 or 25,000 folks surrounding them. In my community near Fort Frances, Ontario, there is a person who is really doing well. He is a cannabis entrepreneur. I think he has hired 11 staff. He’s supporting a young family of six. He’s putting out information that is very important for other cannabis stores. He has a safe and good source of supply and he shares that with other entrepreneurs as well.
This will afford more economic development and better information about cannabis itself and cannabis use. It’s also going to build partnerships that I think are very fruitful with the personal growers in the grey market who want to serve legitimate cannabis and who are not necessarily focused on — like so many of them are — money laundering of more serious drug money.
That’s one of the things that frightens me about some of this activity. The ATMs inside those cannabis stores are doing a bit of money laundering that they shouldn’t be allowed to do.
All of that is to say that it would be meeting the Health Canada objectives in the Cannabis Act in a more focused way if we were allowed. Again, we’re always doing this expensive test marketing. This is a much more economic one. We know it works in places where it’s been allowed to operate. There are better models and we can all learn from them.
Senator Christmas: Thank you, Ms. Mainville. Thank you very much for your testimony today. It’s very valuable. Thank you for the great work you’re doing.
Ms. Mainville: Meegwetch.
The Chair: Ms. Mainville, would you suggest specific amendments to the Cannabis Act to address the jurisdictional issues at this point in time?
Ms. Mainville: I think there’s a prospect of a regulation in the Cannabis Act that would meet the needs of the diversity in interest. There’s certainly an interest in enforcing against unlicensed cannabis activity. But there’s also a strong interest in allowing for the jurisdiction to license commercial cannabis. I can’t suggest one or two sections that can do both of those things, but I would suggest that there could be a regulation that, in a partnered way, Indigenous peoples in Canada could create that would allow for both the tools and for commercial cannabis activity to be licensed in order to legitimately provide good products to consumers across Canada.
The Chair: Thank you for that.
Senator Coyle: To follow up on the question from our chair, Ms. Mainville, if recommendations were to come forth on changing the Cannabis Act — and you’ve spoken about the regulation — that’s a good area for us to focus attention on, and often we don’t. Thank you for directing us there.
You did mention that if, in the stated fundamental goals of the Cannabis Act — I’m not going to say it very eloquently — the Indigenous opportunity was clearly outlined as a stated goal of the Cannabis Act, things would have gone differently and, in particular, in terms of the jurisdictional relationship with provinces, there would be more guidance and push towards cooperation there.
Would you say that at this stage, with this legislative review coming up, it would also be a recommendation that we go back to the fundamentals of the goals of the Cannabis Act itself?
Ms. Mainville: It definitely would work more efficiently if it happened at the outset, before the provinces created their own regimes. But I don’t see why, in cooperative federalism terms, that amendment wouldn’t give pause to provincial governments to think about whether or not they could meet that goal if it was a truly legislative goal and if it was seen as a requirement.
We know that, through the Bill C-92 challenge and the Quebec reference to Bill C-92, provinces don’t necessarily like being directed in some instances. But I think for this one, all Crown governments should see the importance of meeting the goal of Indigenous participation, particularly given the lack of economic opportunity in First Nations generally. Yes, I think it would work. I think it would have worked better if it was done at the outset.
The Chair: The time for this panel is now complete. I wish to thank Ms. Mainville and Mr. Lafond for being here today.
Colleagues, as a reminder, our final meeting on this topic is tomorrow, Wednesday, October 26, at 6:45 p.m.
(The committee adjourned.)