The Six Nations government in Ontario is gearing up to challenge Ottawa's claim of exclusive federal and provincial jurisdiction over the regulation of cannabis.
According to the Toronto Star, Canada's most populous First Nation is drafting its own cannabis law.
“We have to start developing our own source revenue,” the elected chief, Ava Hill, told the newspaper.
In a speech to the UN Permanent Forum on Indigenous Issues, Hill said that there are 26,000 members of the Six Nations of the Grand River Territory.
Section 35 of the Constitution Act, 1982 recognizes and affirms Aboriginal and treaty rights. These include "rights that now exist by way of land claims agreements or may be so acquired".
There have been no court rulings over whether cannabis falls within the definition of Aboriginal rights.
At an Assembly of First Nations meeting in May, a motion drafted by Chief Glen Hudson of the Peguis First Nation in Manitoba asserted that First Nations "possess the authority to manage production, licensing and distribution of legalized cannabis".
The motion noted that the federal government agreed to split revenues on excise duties from cannabis with provinces. Provincial governments will collect 75 percent because they will bear greater costs.
Hudson pointed out that "the lack of First Nations inclusion in the cannabis tax framework is a missed opportunity for the federal government to demonstrate its commitment to a nation-to-nation relationship that incorporates First Nations governments into the federation".
The motion called upon Canada to amend Bill C-45 to recognize that the jurisdiction of First Nations supersedes provincial legislation and regulation with regard to the licensing, production, distribution, and sale of cannabis.
The stakes are high for provincial governments, which are counting on their federally legislated monopolies to bring in massive amounts of money.
The B.C. government, for example, has forecast revenues of $75 million per year from cannabis taxes starting in 2019–20, with $50 million expected in this fiscal year.
Statistics Canada has estimated that Canadians spent nearly $6 billion on cannabis last year, with 90 percent of that for nonmedical purposes.
If First Nations pass their own laws and create their own distribution networks, this could create a legal quagmire, given the propensity of the courts to affirm Aboriginal rights over the objections of various governments.
The federal government has already come under scathing criticism for failing to include Indigenous communities in the process that led up to Bill C-45, which legalizes cannabis, effective October 17.
The Senate committee on Aboriginal peoples released a report in May highlighting "an alarming lack of consultation".
"Indigenous peoples have the inherent right of self-determination, including the appropriate law-making authority to make meaningful decisions that affect the lives of their people and communities, including regulating cannabis," the report declared.
The chair of the federal task force on cannabis legalization, Anne McLellan, has denied there was a lack of consultation with Indigenous people.
However, former B.C. chief James Delorme also expressed concerns about this in an interview with the Georgia Straight in June.
He's the founder of First Sky Media Group, and has maintained that "using traditional medicines is part of our DNA".
"The point people are missing is that we, First Nations people, are the original stewards of the land," Delorme said. "It’s important we are consulted about how the process should take place, yet we’ve been left out of the conversation.”