Honourable colleagues, I think this is a good day in the Senate. It’s a good day for Canada. I’m grateful to Senator Patterson. I understand it’s with a great deal of emotion that you are not proceeding with this amendment, because I know how deeply you felt, and I think we all owe you a debt of gratitude.

Hon. Senators: Hear, hear.

Senator Gold: I’m happier to be speaking today not in opposition to an amendment that you have put forward. I’d rather work together than in opposition, dare I say that.

I’d like to think that today is an important step forward for us as we move towards a nation-to-nation relationship, but we cannot underestimate the long road that lies ahead. If we are going to succeed in moving forward, as I hope we will, it must be based on a true understanding of where we have been and upon what foundations our country was founded.

So let me take a few moments to say some simple, unavoidable and uncomfortable truths that I have come to learn over the years as a student of Canadian constitutional law. I think these are the truths that underpin the recommendations and aspirations of the Standing Senate Committee on Aboriginal Peoples, and they inform the commitments — I certainly hope they do — that the government has made today. They certainly inform my personal aspirations for the future.

What are these simple and unavoidable truths? The first is the colonial basis for our legal system. I’m not referring only to the fact that Canada was once a colony of Great Britain, though that is part of it. It is that our entire legal system, including our Constitution itself, is based upon a colonial conception of law and our relationship with the land and its peoples.

I remember very well when my former colleague Professor Brian Slattery began writing on this subject. It seemed really strange and unfamiliar at the time to a young law professor in the early pre-Charter days, but now, thanks to a new generation of legal scholars, both Indigenous and non-Indigenous, this understanding is part of mainstream understanding, at least in constitutional law circles. There are many ways in which this colonial basis of our law has shaped the Canadian legal landscape and imagination, including the most fundamental rules concerning the ways in which the English common law came to be applied in the various provinces and territories.

Why is this important for us today? It’s because it rendered legally irrelevant the rich and diverse legal and political traditions and institutions that were constitutive of the Indigenous communities that the Europeans first encountered, thereby leaving no room for the application of Indigenous law on the territories that were either conquered or ceded by treaty or even just left alone. This lies at the heart of the demand for legislative and taxation power regarding cannabis on the territories under the control of Indigenous communities today, as reflected in the report of the committee.

The second is the extent and degree to which the Crown, both before and after Confederation, simply failed to honour the letter and the spirit of the treaties that it entered into with our First Nations, treaties that were literally at the heart of the creation of Canada, even more fundamental to the creation of Canada than the British North America Act of 1867.

There are many books on this, but this is a pitch for my former mentor and esteemed colleague Professor Peter Russell and his book Canada’s Odyssey: A Country Based on Incomplete Conquests, which I commend to all of you and to all Canadians who may be listening.

[Translation]

One of the consequences is that Indigenous peoples were not treated as partners or beneficiaries in the development of the territories that initially belonged to them and that they agreed to cede in accordance with prior treaties. This is the basis for the committee’s request that the economic benefits of cannabis legalization be shared with Indigenous communities.

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Honourable colleagues, as we take these first steps towards reconciliation, we must allow ourselves to be guided by the truth about our past, a truth of which a great many Canadians are not aware.

Looking at the world around us, there are other unavoidable truths we should find inconvenient, such as the prevalence of addiction and mental health problems in Indigenous communities as well as the relative lack of programs and the absence of treatment services for these problems, just to name two.

These are not new but longstanding problems. These are undeniable truths that we cannot and must not ignore.

[English]

Today, the formal commitments made by the government represent tangible and concrete progress in addressing these very real needs.

Equally importantly, the government appears to have taken an important step in working with the leaders of Indigenous communities to address the vexing and difficult issues of jurisdiction, participation and revenue sharing. This is most welcome.

Senator Patterson, the other week, gently took me to task in this chamber for comments that I made about the diversity of law-making powers amongst Indigenous communities, but I believe that inadvertently he may have misunderstood the point I was trying to make, perhaps not very well, so let me try here again. I think it’s important as we go forward on this path. The fact is that the scope of the legislative and taxation jurisdiction of Indigenous communities is really complex.

[Translation]

First of all, every community has different powers, in particular self-government pursuant to treaties and regulatory powers pursuant to the Indian Act. For our colonial relationship to evolve into a nation-to-nation relationship, it is critical that we consider communities’ legitimate interests with respect to the control they have over their lands. I support this evolution. It will take more than a year to accomplish, however.

That said, there are ways to make constructive progress now. I would like the government to be more flexible in its interpretation of regulatory powers under the Indian Act in order to allow those communities who so desire to regulate cannabis in the same way they currently regulate alcohol. It is not impossible. It is not just about political will.

I also think there are creative ways for governments and Indigenous communities to meet and find new ways to create fair and equitable partnerships to distribute any of the economic benefits that may flow from the legalization and regulation of cannabis.

[English]

On the latter point, we might take some guidance from Ontario Regional Chief Isadore Day in his testimony before the Standing Committee on Aboriginal Peoples as part of its study on the new relationship between Canada, First Nations, Inuit and Metis peoples.

The core idea is to return to the spirit and shared understanding of early treaties at the time they were entered into, not to try to undo past; that is not possible. We know that. It is to take the underlying principles of these treaties and apply them today in concrete and creative ways to our current circumstances.

This, honourable senators, should give rise to treating our Indigenous communities as true partners with governments in planning for and sharing the benefits, not only from the current cannabis industry but from all current economic development on the lands that were covered by these treaties, and for developing institutions to address educational, health and other needs of the communities.

In this respect, the work being done to assist Indigenous applicants for production licences, and the number coming forward, is very encouraging, as is the commitment that we heard today — it will be a while, I suspect, but nonetheless a commitment — to move forward on a new fiscal relationship with Indigenous communities.

Let’s be clear and be under no illusions. These are issues that will take time to work through. It’s not realistic to expect that we can undo centuries of unilateralism and colonialism in one year. Nor should we do it on the back of Bill C-45 because every day we maintain the criminal prohibition against cannabis possession and use, we do more harm than good.

This brings me to my final point. Honourable senators, the current system of criminalizing cannabis use has failed to keep cannabis out of the hands of not only Indigenous Canadians and communities but all Canadians, young and old. However, it has succeeded admirably in maintaining a system whereby Indigenous youth and adults are marginalized and are stigmatized by the criminal justice system while at the very same time they lack adequate access to treatment and other basic services. I am grateful to the Standing Committee on Aboriginal Peoples for bringing these issues forward —