Dispute over pot shop on Sask. First Nation may hinge on jurisdiction, treaty rights

A dispute between the provincial government and a First Nation that opened its own pot shop may boil down to who has jurisdiction when applying laws.

On November 12, members of the Muscowpetung Saulteaux Nation voted in favour of the band creating its own cannabis and hemp act. One day later it opened a cannabis retail store in their community. The shop opened to the general public Wednesday.

Provincial Minister of Justice Don Morgan urged the band Tuesday not to open a shop. Muscowpetung did not receive one of the 51 retail permits issued by the province earlier this year.

Following Question Period on Nov. 14, Morgan said the federal government handed jurisdiction over to the provinces.

"The province has a regulatory framework in place and our expectation is that people in the province comply with that," Morgan said.

He said the province is open to sitting down with First Nations to develop "a good path forward."

"I have no appetite to end up court on this, so our ask of them is that they comply with the law," Morgan said, later adding if need be, the province would take the issue to the courts.

The Saskatchewan Liquor and Gaming Authority (SLGA) stated via email it would be reaching out to officials from Muscowpetung to "remind them of the requirements relating to operating a licensed cannabis retail outlet in Saskatchewan."

"Action against individuals and/or businesses that undertake unlicensed activities (cannabis, gaming, liquor) is a matter for police to consider," the SLGA statement read.

Dwight Newman, a professor of law at the University of Saskatchewan and Canada research chair in Indigenous rights in constitutional and international law, said the dispute came about due to "chaos" left behind at the federal level in terms of jurisdiction over cannabis regulations.

"There are some questions that were never really entirely resolved in terms of provincial jurisdiction over tobacco activities at one stage, and now those questions are going to be faced," Newman said.

He said there are two streams of thought in the argument. The province has argued their laws apply when applied in a general nature, while Muscowpetung appears to be relying on a treaty rights claim.

Muscowpetung Saulteaux Nation implemented their own cannabis or hemp act, which Newman said was a strategic step in terms of asserting their jurisdiction on the matter.

"If they have the jurisdiction under a treaty right they probably wouldn't need legislation to do it," he said. "Strategically, it's smart for them to frame it in terms of legislation."

He said Muscowpetung's claim may appear more appealing to the courts with legislation in place to provide a framework around how cannabis will be sold on the reserve.

Parallels to past issues

The provincial government has delved into jurisdictional issues on-reserve before.

Both gambling and smoking bans on-reserve have been addressed through the courts.

A dispute between First Nations and the province over gambling led to the creation of the Saskatchewan Indian Gaming Authority in 1995.

When the province implemented a smoking ban in enclosed spaces a decade later, some bands complied and others introduced their own bylaws to address the issue.

"I think there are parallels certainly to past issues related to casinos and related to when there were tobacco bans being introduced in restaurants," Newman said. "The issues are going to have to be fought out in court, probably."

He said because the dispute now involves cannabis, there are going to have to be separate discussions as to how it relates to the numbered treaty documents.