Saskatchewan First Nation won't recognize government jurisdiction over cannabis

There won't be any pot shop grand openings Wednesday on the Sakimay First Nation in southeastern Saskatchewan. 

Instead, the streets are expected to remain quiet while Chief Lynn Acoose and her council develop a plan to create the community's own cannabis laws and regulations.

"We're just going our own way," Acoose said.

"I think that the compromises that we've had to make in the past have weakened our ability to determine our own economic future."

Recreational pot shops are stocking up on the eve of legalization across Canada, but some First Nations feel shut out because of a jurisdictional issue.

Under the Cannabis Act, authority falls to the provinces, territories and Ottawa. If a First Nation wants to produce and sell pot, it needs to apply for a licence with one of those governments. But Saskatchewan First Nations don't see it that way.

"We're not prepared to recognize the jurisdiction of the province on reserve," Acoose said.

"It's always been a one-sided agreement with the province holding all of the power and being able to regulate over us, so we're not interested in that kind of relationship this time."

More consultation needed

Acoose said she is interested in using cannabis for therapeutic purposes to combat opioid addictions and address residential school and intergenerational trauma.

Sakimay First Nation recently conducted a survey in which the majority of the population agreed with the community entering the cannabis industry. It is considering a small craft operation, Acoose said, where community members could grow and sell marijuana.

Under the current system, Sakimay will need a licence from the federal government. If it or any other community doesn't get one and moves ahead, legal experts warn they could face prosecution. 

"Unfortunately, I think it's a little bit of a mess," said Dwight Newman, Canada Research Chair in Indigenous Rights at the University of Saskatchewan.

"I think at this point, [governments] should be continuing to consult with First Nations and to consider necessary statutory changes in order that the law can be functional and meet everyone's needs."

Changes would have to be made to the Indian Act to give First Nations authority over cannabis, according to Newman.

Band councils can make bylaws under Section 81 of the Indian Act related to the health of residents and the observance of law and order as long as they are consistent with the objectives of the Cannabis Act, according to Health Canada.

But Newman said communities could also argue they have a sovereign right. 

"Under the Canadian Constitution, there hasn't been recognized any general right of self-government as yet," Newman said.

"That might happen in the future. This might be the context where it's tested out."

Reconciling economic aspirations

Some provinces and territories, including Ontario and Quebec, have taken specific steps to include negotiations with First Nations in their cannabis legislation. 

Marijuana dispensaries are already operating in those provinces. Some are reaping thousands of dollars a day.  

But it's a different case in Saskatchewan.

"It's always a fight," said David Pratt, vice-chief of the Federation of Sovereign Indigenous Nations

"We're dealing with these jurisdictional debates and issues when we should be coming together to work on the challenges within the Saskatchewan region."

The Assembly of First Nations passed a resolution in the spring calling on Ottawa to address the jurisdictional issue across the country.

'Right to decide'

"First Nations have a range of views on the best approach to cannabis licensing, production, distribution and sale, but we all agree our rights and jurisdictions must be respected and upheld by governments," said Assembly of First Nations National Chief Perry Bellegarde in an email statement sent to CBC News.

"First Nations have the right to decide if they want to participate in this new economic sector. We will continue to work with governments and advocate for First Nations-led approaches to ensure community safety, health and well-being for our families and youth."

Health Canada told CBC News the federal government will continue to engage with First Nations on ways to participate in the cannabis industry and accommodate jurisdictional issues. 

But on the Sakimay First Nation, Acoose says that's not enough.

"Reconciliation is meaningless without the action behind the words," Acoose said.

"Until they [governments] start to reconcile the economic aspirations of First Nations people with the economic aspirations with the rest of Canada, … there can't be reconciliation."