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Lawyer and former RCMP officer push Canadian cannabis regulations on unwilling Tyendinaga Mohawks

Originally published on no-vote.ca


The Mohawks of the Bay of Quinte Band Council is trying to assert Canadian law over sovereign Mohawk Territory by pushing for a “Cannabis Control Law” that Mohawks warn will bring “civil war” and “as much carnage as has ever been done in our world.”

TYENDINAGA MOHAWK TERRITORY – The latest drafts of the Mohawks of the Bay of Quinte (MBQ) “Cannabis Control Law” was presented to a community meeting on September 12th, 2019. The elected Band Council’s draft law – which was only provided to community members at the opening of the meeting – was roundly condemned by Mohawks opposed to bringing in foreign laws to regulate their lands and industry and who warned the inevitable result of this approach would be conflict and violence. 

The meeting was part of a process organized on behalf of the MBQ by former Tyendinaga Police Chief, OPP Officer, and RCMP Senior Investigator Larry Hay, who now works in the private sector as a private investigator and independent military contractor. According to Hay’s LinkedIn profile, he is a 19 year veteran of the RCMP specializing in drugs, undercover operations, and investigations of organized crime. 

While the meeting was organized by the Band Council, no speakers from the Council made presentations or spoke as to why they supported this framework. Instead, the main speaker was former Couchiching FN Chief and Anishinaabe lawyer Sara Mainville, who drafted the law and has worked for a number of First Nations who have accepted Provincial regulation and the introduction of recreational cannabis dispensaries selling Crown cannabis on their territory.

Although the intent of the proposed “Cannabis Control Law” is ostensibly to “protect the commercial interests of the businesses for the licenses and the consumer interests of members, residents, and visitors to Tyendinaga,” Mainville’s focus on the need to license every aspect of the industry in accordance with Health Canada’s regulations left many in attendance wondering if the law was meant to help the people, or to hand control of the industry over to Canadian government bureaucrats. 

Lawlessness in Tyendinaga?

Following a lengthy overview of how the new law would tie the Mohawk cannabis industry to the federal government’s Cannabis Act through a comprehensive licensing regime, audience members spent the next hour and a half peppering Mainville with questions critical of her framework. Her answers appeared to do little to address their concerns or to resolve the fundamental issues that were raised. 

According to a recording of the event provided to the website Dispensing Freedom, one audience member described the process of “law making” as follows: 

“So, we have an elected system that’s really an extension of the Federal government, that is proposing in this document to protect us from the Federal government and the Provincial government. I would like to hear from you how you see the council being the ones in charge of this as a legitimate way of presenting it to the community, when they are part of the Federal entity? They’re not really representing the people here. They’re representing the Indian Act and what they can do with the Indian Act.”

Mainville tried to circumvent the question, acknowledging that while the “imposition of the Indian Act and…of a Chief and Council” are real issues to contend with, the “well-intentioned” nature of the Chief and Council were paramount.

“We know that there are things that are happening here that shouldn’t be happening, and there needs to be rules,” she said, calling Tyendinaga a “lawless community where nobody is following the rules.” Mainville received push back on her comments about lawlessness, as one community member replied:

“This place is not lawless. I grew up here and there are a whole set of rules and laws that the people that grew up here live by that aren’t written down. And this place is not lawless at all. And even with operating in the cannabis industry, we all know that it’s not lawless. And it’s offensive to hear that. You need to know that. Because I understand you don’t, maybe you don’t see it or can’t smell it, I don’t know. But I would. And I know that the people in this room that I’ve lived with, that I’ve seen either their children growing up or I watched as I was a child growing up, know these laws and rules and how this stuff gets managed and taken care of.”

The laws the member was referring to are the customs and conventions of the Mohawk people, many of which have been summarized in a document written by Bear Clan members available at www.dustingoffthepath.com. These laws are separate and distinct from the Canadian system, and the Mohawk people have never given up their right to live by them or surrendered them to Canadian jurisdiction. 

The cannabis control law being proposed by Mainville and Hay would ensure the complete submission of the Mohawk cannabis industry to the rules and regulations of Health Canada. While Mainville tried to downplay the level of control the Canadian government would have should this law be passed and enforced, she nevertheless made it clear that the chief concern would be the issue of licensing.

“Everything and everyone involved in the cultivation, processing, extraction, production and distribution of recreational and medical cannabis in Tyendinaga” she explained, “will be covered by this law. Those folks have to be licensed.”

“If you are operating in an unlicensed way, you’re considered to be working with illicit cannabis or black or grey-market cannabis,” she said, referring to the rules under Canada’s Cannabis Act. “Well, it’s the same sort of orientation that this regime will have within Tyendinaga.” Those operating outside of the Cannabis Control Law in this way would face “compliance officers” and a “corrective system” enforced by the Canadian state, according to Mainville. 

Oversight by the Cannabis Control Board

Under Canada’s Crown cannabis framework, all “legal” cannabis can only be produced by Licensed Producers (LPs), which, in turn, are licensed by Health Canada. Only they can produce cannabis for sale to Crown Corporations, who are the only ones who retailers are allowed to legally purchase their product from. 

That Health Canada has already approved the use of over 90 different pesticides and herbicides in the production of their cannabis is a deep concern to many indigenous growers and consumers. Because they have been operating outside of the confines of the Canadian government’s framework, Indigenous growers in Tyendinaga and elsewhere have been able to prosper while offering their customers high quality pesticide-free product. 

Mainville explained that in building the law “we started with Kahnawake’s law.” In Kahnawake, the Band Council successfully imposed a moratorium on cannabis and repeatedly raided the shops that sold cannabis. Despite originating the first Band Council law on cannabis, no licensed retail stores or cultivators have emerged in Kahnawake, and the Band Council’s much vaunted agreement with LP Canopy Growth recently fell through when the company backed out. 

Outside of harmonizing with Canada’s Cannabis Act, much of the MBQ’s proposed Cannabis Control Law would be upheld by a special five person commission operating at “arm’s length” from the MBQ. This body would be the one responsible for issuing the licenses, scrutinizing the industry, and developing further rules and regulations as they see fit. The members of this board are not allowed to have any personal or familial ties to the cannabis industry, and must not have a criminal record containing any indictable offenses. Two of the members would be paid “professional board members” and be appointed by the MBQ, while the other three would be elected in Band Council elections.

This “Tyendinaga Mohawk Cannabis Control Board” would run all aspects of the cannabis industry at Tyendinaga and liaise “regularly and cooperate” with other jurisdictions and the regulatory and law enforcement agencies of Canada. This board is also empowered “to enter into an agreement on price and point of sale taxation arrangements with the Ontario Cannabis Store and the Ministry of Finance.” Board meetings can be open or closed to the public at the will of the board. 

The board is given full powers to create new categories of licenses, set the price of licence fees, determine the operating hours of stores, the type of products, number of licenses, maximum amount of cannabis a store can sell in a given time to customer, potency limits on cannabis, standards and testing procedures, may impose fines up to $100,000 per breach; set up procedures to “accurately track all cannabis sold by a cultivator, processor, distributor, and retail store” and “any other regulations required.”

A “lack of transparency and communication”

Another angle of community critique concerned the lack of transparency and communication from the team organized by Larry Hay to develop the cannabis law. As one community member noted: “I’m looking at this [27 page document] which was given to me about five minutes before we started, which I find extremely frustrating. If you want to have a valid conversation with the community, then if you have a piece of paper, [it should be] given to you ahead of time. Most of us are extremely busy with our lives and to be called to a meeting to have a conversation for the very first time about this, which has been called a law, is very frustrating to me.” 

In response, Mainville suggested that the consultation process in Tyendinaga “has been happening, I think probably more comprehensively in your community than in a lot of other communities, which I think is a good thing.”

Further concerns were raised in terms of the fact that “this is the second time we haven’t gotten the information prior to a meeting so that we can properly be able to review it and have questions.” Larry Hay replied that “this really was meant to be a delivery, a presentation. It wasn’t even going to be a Q&A. It was to say here you go, have a look at this. We’ll explain it. It wasn’t to have a debate about it today.” 

Hay explained that the last meeting of the committee drafting the law was held on July 31st, and that “since March we really haven’t done a whole lot with the community but there’s been reasons for that. To be perfectly frank, right up until now, like even this afternoon, there was still some tweaking going on in terms of the vision. So there’s no point in putting out a draft law that we know full well doesn’t represent an accurate picture of what it is you want.”

That did not resolve the general feeling of a lack of communication and transparency surrounding this process, as the community member replied: “so there was this big race to get us in by October 17, we did it on the eve of. Now it’s almost a year later and we’re not seeing communication, no one knows what’s happening, we’re not seeing things on websites, that kind of thing… But we’re getting this and we’re expected to read it. When is our next chance to ask questions and answers then if we’re not seeing regular meetings, we’re not seeing regular communication?”

Hay responded that “you will have ample time to look through it, there will be availability of the service offered up through email. I’m around to try and relay questions or try and make sure you understand.”

Hay’s suggestions were not accepted by one member of the Bear Clan who pointed out that the traditional people had not been consulted in this discussion. “Historically, what I know is when this man comes, [pointing at Larry Hay] he’s trying to impose another government’s will on us. That’s what I know. Every time I see him, it’s another government’s will. And here, we aren’t Canadian… And we have the authority ultimately of that, because this land was handed to us, the traditional people, not the MBQ. The MBQ did not exist at the time the Simcoe Deed was written. This is our land, the people, not MBQ. And we have not had any consult or input into this draft of this law at all.”

The Bear Clan speaker further stressed that the traditional people in Tyendinaga operate according to their own systems of rules and laws. “We have one. It’s 117 Wampums under the Kayenerekowa that dictates how we conduct this business, how we conduct the gas industry, how we conduct the cigarette industry. And we’ve been challenged in the ‘70s on the gas, in the ‘90s on the cigarettes by the Canadian government. And they did not win. They’re trying again, once again to put us into a taxable income bracket over something that they aren’t getting their money from us. That’s the only reason they want in on this. Let’s face it. Let’s look at the bottom line. They’re looking at the dollar they’re missing out on. They’re not looking at our wellbeing, our welfare, or our children’s inherent right to govern this land. They’re looking at themselves.”

To this comment, Mainville simply replied “I hear you, but I’m not here to respond.”

Another traditional person warned of the violence and trouble that the passing of this law would bring to Tyendinaga. “We set the rules for our own land. This is not Canada. This is our land.… Now when you think about this, when you go home and [this law] passes, there are people in this community that will fight to the death. They will bring blood, they will bring as much carnage as has ever been done in our world. This will be a civil war that they won’t tell you about, because it’s the people that are here that have to fight it. It’s for our kids who want to be able to make their own rules and their own laws. And what you’re doing is helping the Federal government split us. But right now, Canada won’t move in on Tyendinaga. And when they do, they’ll have a fight. That’s what makes us Sovereign.” 

The speaker further warned Mainville that “if you want to push that onto our people and try to split them, I want you to think about what you’re actually doing. They’ll just take the money and then kill us. They’ll just say okay, well something needs to be done because these people don’t have anything. We have each other. We love each other. When our community comes together and they need stuff, it’s the people that own these businesses that pay for it. They don’t need to be asked. One of the greatest things is that there is no hunger here, there’s no poverty. Anything that people need, they have it. That’s our community. That’s us. The Mohawk people. That is not Canada. We don’t trust Canada, never will…. We can’t trust a single word that is written in their language. That’s what I wanted to say.”

The meeting concluded with a statement from one of the Bear Clan people reminding the audience that the terms of the Simcoe Deed are what matter concerning Canada’s relationship to the Mohawks of Tyendinaga. “The words of the Simcoe Deed say the land is given and granted unto the Chiefs, warriors, women, and people of the said Six Nations and their heirs forever. The land is granted to them and their heirs forever, freely and clearly of and from all matters of rents, fines and services whatsoever to be rendered by them the said Chiefs, Warriors and people of the said Six Nations to use or our successors to the same, and free of and from all conditions, stipulations, and agreements whatever except as hereinafter by us expressed and declared.”

Larry Hay, Councilor Stacia Loft, and Chief Donald Maracle declined to provide any comment for this story. Sara Mainville was asked for comment but did not respond. 

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