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Sask First Nation Challenges Provincial Jurisdiction over Cannabis

Dylan Robertson (2L)

Last month, the Muscowpetung Saulteaux First Nation, located northeast of Regina, became the first Indigenous nation in Canada to pass its own cannabis legislation and open its own dispensary. Claiming a sovereign right to pass laws on its territory, the First Nation argues that it is outside the jurisdiction of the cannabis framework established by the Government of Saskatchewan. The provincial system requires cannabis retailers to be approved and regulated by the Saskatchewan Liquor and Gaming Authority.

Not surprisingly, the provincial government is opposed to the move. It has urged the First Nation to close the dispensary and instead apply for a government-approved licence to sell cannabis products. A total of 51 permits have been granted across the province. However, as of writing, less than ten stores have actually opened their doors.

The conflict between the Muscowpetung and the provincial government is an interesting one without much precedent. It is not habitual for an entirely new industry to be created overnight. It is understandable that many First Nations believe they not only have a right to share in the economic spin-off of that industry, but as sovereign nations they also deserved a voice in the legalization process. According to the Muscowpetung Chief, Anthony Cappo, both the federal and provincial governments acted without proper consultation of First Nations people.

At the time of writing, Cappo and the provincial Justice Minister are scheduled to meet and discuss the issue. While it is possible that the issue may be resolved by the time this article comes out, the Muscowpetung have been steadfast in their belief that they have the right to pass their own regulations. Furthermore, they have received the backing of the Federation of Sovereign Indigenous Nations (FSIN) as well, which has threatened legal action if the provincial government continues to oppose the dispensary.

Were the case to make it to trial, the Muscowpetung would likely seek a declaration that the province does not have the jurisdiction to legislate cannabis on First Nation territory. Because the provincial system is mandated by the federal Cannabis Act, it is possible that they might try to claim that the federal government failed at its duty to consult First Nations during the drafting of the statute. Invalidating the authority of the Cannabis Act over First Nations territory would be difficult under the framework established by the Supreme Court in Haida Nation v British Columbia (Minister of Forests), but arguably, it might be necessary. As it stands, the Muscowpetung are in violation of several of its provisions, including its requirements that all dispensaries are properly licenced and that all cannabis products come from a federally-licenced grower (the Muscowpetung have yet to explain how they acquire their stock).

This is not the first time the Government of Saskatchewan has found itself in a jurisdictional battle with a First Nation, which might alleviate concerns that this issue is destined for the Supreme Court. In 1993, a similar dispute over gambling on the White Bear First Nations ended with the province and the FSIN signing the Gaming Framework Agreement, which allowed for reserves to establish their own casinos. Given the similarities between the two situations, there is a good chance that the current dispute will be resolved outside of the courts—something which both sides likely prefer. Whatever course the dispute ultimately takes, it is certain that governments and First Nations from other provinces are watching closely.