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Oct 22nd Cannabis Control Law Open House a “confusing failure”

originally published on no-vote.ca

TYENDINAGA MOHAWK TERRITORY – The Mohawks of the Bay of Quinte (MBQ) Elected Band Council held the first of two scheduled “open house” meetings at the Mohawk Community Centre on Tuesday, Oct 22nd. The gathering was attended by about 30 people, but the Chief and Council members present faced a steady stream of criticism from community members unhappy with their decision to bring the MBQ’s “Cannabis Control Law” to a plebiscite. At previous community meetings, including one held on Sept 12th, the MBQ Cannabis Control Law faced near-unanimous opposition and criticism from the people of Tyendinaga Mohawk Territory in attendance. 

The MBQ’s original draft cannabis control law – passed through Band Council Resolution on Oct 17th, 2018 – was nearly identical to the one developed for Kahnawake by Murray Marshall, lawyer for the Mohawk Council of Kahnawake (MCK). Marshall established the Legal Services department of the MCK in the 1990’s and has drafted numerous laws for the MCK including the Kahnawake Gaming Law  Kahnawake Alcoholic Beverages Control Law, Kahnawake Membership Law, Kahnawake Peacekeepers Law and the Kahnawake Cannabis Control Law. 

The more recent version of the MBQ cannabis control law has been augmented by Sara Mainville, a lawyer and partner at Olthuis Kleer Townshend and a former Indian Act Chief of Couchiching First Nation. Mainville has been advising Indian Act Band Councils in the cannabis sector for several years, and has advised a number of First Nations that have opted to utilize the Province’s licensing scheme and who are now seeking to operate Provincially licensed dispensaries on reserve. The other main actor for the MBQ on the cannabis file is Larry Hay, a former Senior Investigator and 19 year veteran of the RCMP who was formerly a Tyendinaga Police Chief under the OPP and who has been leading the “community engagement” around the MBQ’s Cannabis Control Law.

What’s in the MBQ’s Cannabis Control Law?

According to the MBQ law, all cannabis operations involving cultivation, processing, extraction, production, distribution and retail of cannabis must be licensed by the MBQ according to regulations that are harmonized with Canada’s Cannabis Act. Those with criminal records containing indictable offenses will be prohibited from participation in the industry. 

The cannabis plant itself would also be prohibited on the territory, and only be allowed if “the cannabis has been acquired from a licensed retailer or from a facility that is licensed by Health Canada; and the total amount possessed at any given time does not exceed limits found in Canada’s Cannabis Act.” 

When it comes to cultivation, the law stipulates that all growers must have “a valid Standard Cultivation Licence or Micro-cultivation License from Health Canada.” Furthermore, “No person is eligible to apply for or hold a Standard Cultivation Licence, a Micro-cultivation Licence, a Standard Processing or a Micro-processing Licence unless the facility from which operations are intended to be conducted has been inspected, certified and licenced by the health and safety authorities designated by the Board, which may include Health Canada officials.” 

In short, the MBQ’s proposed Cannabis Control Law would place the Tyendinaga cannabis industry under the full control and regulation of Health Canada. 

Confusion at the “open house”

As guests entered the October 22nd “Open House” they were able to pick up copies of The Tyendinaga Mohawk Cannabis Control Law v8.0which differed in some ways from the earlier version of the law that was presented on September 12th. One obvious difference is the change to using terms not commonly used to describe Mohawk people or their institutions in Tyendinaga. The term “Tyendinagaro:non” is used to describe members of the MBQ, and the MBQ is euphemistically called the “Tyendinaga Mohawk Council”. The effect of using these terms is to conflate and confuse the traditional governance structures of the Kanyen’keha:ka (Mohawk) people with the seperate Indian Act system through which the MBQ operates. 

Sara Mainville and members of Chief and Council were sitting at a nearby table to greet community members and answer questions. In the centre of the room were presentation boards with sections of the proposed law posted on them. However, there were no scheduled speakers and no opportunities for collective dialogue or decision making at the event. Chief Donald Maracle, Councillor Stacia Loft and lawyer Sara Mainville spoke to scattered groups at various points, but there was never a sustained discussion or debate of specific points of the law.

A number of people arriving at the meeting were confused about the format of the evening. “Who are the speakers?” one person asked “There are none, this is just an open house” was the response.

One prominent dispensary owner, was unimpressed with the event and by the way in which the consultation had been undertaken. Reflecting on the small turn out at the gathering, he said “Look who’s not here. There’s only three or four dispensary owners, where’s the other 30?” He added, “The fact that they aren’t here shows that they’re not interested, that they are not being engaged, and that this process is a confusing failure.” 

The owner concluded, “They’re circumventing our sovereign rights. Our businesses, including mine, are already meeting and exceeding [Canada’s] standards and regulations.” He went on to say “We’ve been operating for five years, and other businesses have been operating, so we know what we’re doing.”

Another Mohawk man addressed council members present and said, “Why do you guys want to do this when all the stores are saying we don’t want to do it? You are going to vote on this thing that the stores don’t want, the stores are willing to fight for this stuff. Don’t make it a fight, if you want to make it a fight, make it a fight between Canada and us, not us and us.”

One Bear Clan member questioned why the council had hired Larry Hay, a 19 year veteran of the RCMP who is still active as a private investigator. “Why would you hire a police agent if you were seeking community input?” At various other “consultations” and “community meetings” organized by Hay, active duty police officers attended and took notes on the proceedings, a practice counter to open discussion and communication amongst Mohawk people. 

Speaking of the cannabis industry, a community member insisted that Mohawks have the right to participate in it with or without Indian Affairs or Canada’s blessings. “We have the right to develop all aspects of our own cannabis industry, staying within the confines of our own cultural and political paradigm. This is exactly what Canada agreed to when signing UNDRIP. As Mohawks we can do this on our own without including or involving the Indian Act or the Canadian State’s legal systems.”

Currently, no other businesses in the territory – including cigarette shops, gas stations, and restaurants – allow outside Canadian inspectors to come in and examine their products or books. Nor do they pay tax or a licensing fee to the MBQ, a creation of the Indian Act.

Further concerns were expressed that the fees for licensing and testing are nothing more than taxation by another name. As one Mohawk man said, “It looks like every move we make under this regime is going to cost us money…. I am fearful that this is part of a wider attempt to bring taxation on alcohol, cigarettes, and cannabis to our territory.”

The format of the vote was also called into question. As opposed to a referendum which has to follow specific rules under the Indian Act, the MBQ’s decision to hold a plebiscite means that it does not follow these regulations and is not legally binding. Since so few people have actually had a chance to have input into the cannabis control law’s development, view the law or have their questions and concerns addressed, it is unclear why council is holding this plebiscite in the first place.

“Let’s have basic principles we can all agree on, let’s establish that and then more forward”  another suggested. “You need to postpone that plebiscite, and rename it while you’re at it.” 

At the end of the Open House, Lawyer Sara Mainville asked Chief and Council if they had a mailing list for all Band Members so that a greater turn out could be arranged for the next Open House on Sunday. 

The MBQ’s plebiscite is scheduled for November 16, with voting taking place from 9:00am to 6:00pm at the Mohawk Administrative Office.

As of press time, the The Tyendinaga Mohawk Cannabis Control Law is not easily available on the MBQ website. Visitors to the site have to navigate through the “Contact Us” section to an obscure “Documents” section, as the proposed law is not posted in the section of the site dedicated to the cannabis law.

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. 

The MBQ’s original draft cannabis control law – passed through Band Council Resolution on Oct 17th, 2018 – was nearly identical to the one developed for Kahnawake by Murray Marshall, lawyer for the Mohawk Council of Kahnawake (MCK). Murray established the Legal Services department of the MCK in the 1990’s and has drafted numerous laws for the MCK including the Kahnawake Gaming Law  Kahnawake Alcoholic Beverages Control Law, Kahnawake Membership Law, Kahnawake Peacekeepers Law and the Kahnawake Cannabis Control Law. 

The more recent version of the MBQ cannabis control law has been augmented by Sara Mainville, a lawyer and partner at Olthuis Kleer Townshend and a former Indian Act Chief of Couchiching First Nation. Mainville has been advising Indian Act Band Councils in the cannabis sector for several years, and has advised a number of First Nations that have opted to utilize the Province’s licensing scheme and who are now seeking to operate Provincially licensed dispensaries on reserve. The other main actor for the MBQ on the cannabis file is Larry Hay, a former Senior Investigator and 19 year old veteran of the RCMP who was formerly a Tyendinaga Police Chief under the OPP and who has been leading the “community engagement” around the MBQ’s Cannabis Control Law.

What’s in the MBQ’s Cannabis Control Law?

According to the MBQ law, all cannabis operations involving cultivation, processing, extraction, production, distribution and retail of cannabis must be licensed by the MBQ according to regulations that are harmonized with Canada’s Cannabis Act. Those with criminal records containing indictable offenses will be prohibited from participation in the industry. 

The cannabis plant itself would also be prohibited on the territory, and only be allowed if “the cannabis has been acquired from a licensed retailer or from a facility that is licensed by Health Canada; and the total amount possessed at any given time does not exceed limits found in Canada’s Cannabis Act.” 

When it comes to cultivation, the law stipulates that all growers must have “a valid Standard Cultivation Licence or Micro-cultivation License from Health Canada.” Furthermore, “No person is eligible to apply for or hold a Standard Cultivation Licence, a Micro-cultivation Licence, a Standard Processing or a Micro-processing Licence unless the facility from which operations are intended to be conducted has been inspected, certified and licenced by the health and safety authorities designated by the Board, which may include Health Canada officials.” 

In short, the MBQ’s proposed Cannabis Control Law would place the Tyendinaga cannabis industry under the full control and regulation of Health Canada. 

Confusion at the “open house”

As guests entered the October 22nd “Open House” they were able to pick up copies of The Tyendinaga Mohawk Cannabis Control Law v8.0which differed in some ways from the earlier version of the law that was presented on September 12th. One obvious difference is the change to using terms not commonly used to describe Mohawk people or their institutions in Tyendinaga. The term “Tyendinagaro:non” is used to describe members of the MBQ, and the MBQ is euphemistically called the “Tyendinaga Mohawk Council”. The effect of using these terms is to conflate and confuse the traditional governance structures of the Kanyen’keha:ka (Mohawk) people with the seperate Indian Act system through which the MBQ operates. 

Sara Mainville and members of Chief and Council were sitting at a nearby table to greet community members and answer questions. In the centre of the room were presentation boards with sections of the proposed law posted on them. However, there were no scheduled speakers and no opportunities for collective dialogue or decision making at the event. Chief Donald Maracle, Councillor Stacia Loft and lawyer Sara Mainville spoke to scattered groups at various points, but there was never a sustained discussion or debate of specific points of the law.

A number of people arriving at the meeting were confused about the format of the evening. “Who are the speakers?” one person asked “There are none, this is just an open house” was the response.

One dispensary owner was unimpressed with the event and by the way in which the consultation had been undertaken. Reflecting on the small turn out at the gathering, he said “Look who’s not here. There’s only three or four dispensary owners, where’s the other 30?” He went on to add, “The fact that they aren’t here shows that they’re not interested, that they are not being engaged, and that this process is a confusing failure. They’re circumventing our sovereign rights. Our businesses, including mine, are already meeting and exceeding [Canada’s] standards and regulations.”

Another Mohawk man addressed council members present and said, “Why do you guys want to do this when all the stores are saying we don’t want to do it? You are going to vote on this thing that the stores don’t want, the stores are willing to fight for this stuff. Don’t make it a fight, if you want to make it a fight, make it a fight between Canada and us, not us and us.”

Others questioned why the council had hired Larry Hay, a 19 year veteran of the RCMP who is still active as a private investigator for the job of developing a supposedly Mohawk cannabis framework. One man asked “Why would you hire a police agent if you were seeking community input?” At various other “consultations” and “community meetings” organized by Hay, active duty police officers attended and took notes on the proceedings, a practice counter to open discussion and communication amongst Mohawk people. 

Speaking of the cannabis industry, a community member insisted that Mohawks have the right to participate in it with or without Indian Affairs or Canada’s blessings. “We have the right to develop all aspects of our own cannabis industry, staying within the confines of our own cultural and political paradigm. This is exactly what Canada agreed to when signing UNDRIP. As Mohawks we can do this on our own without including or involving the Indian Act or the Canadian State’s legal systems.”

Currently, no other businesses in the territory – including cigarette shops, gas stations, and restaurants – allow outside Canadian inspectors to come in and examine their products or books. Nor do they pay tax or a licensing fee to the MBQ, a creation of the Indian Act.

Further concerns were expressed that the fees for licensing and testing are nothing more than taxation by another name. “It looks like every move we make under this regime is going to cost us money…. I am fearful that this is part of a wider attempt to bring taxation on alcohol, cigarettes, and cannabis to our territory,” said one local man.

The format of the vote was also called into question. As opposed to a referendum which has to follow specific rules under the Indian Act, the MBQ’s decision to hold a plebiscite means that it does not follow these regulations and is not legally binding. Since so few people have actually had a chance to have input into the cannabis control law’s development, view the law or have their questions and concerns addressed, it is unclear why council is holding this plebiscite in the first place.

“Let’s have basic principles we can all agree on, let’s establish that and then more forward”  a community member suggested. “You need to postpone that plebiscite, and rename it while you’re at it.” 

At the end of the Open House, Lawyer Sara Mainville asked Chief and Council if they had a mailing list for all Band Members so that a greater turn out could be arranged for the next Open House on Sunday. 

The MBQ’s plebiscite is scheduled for November 16, with voting taking place from 9:00am to 6:00pm at the Mohawk Administrative Office. 

As of press time, the The Tyendinaga Mohawk Cannabis Control Law is not easily available on the MBQ website. Visitors to the site have to navigate through the “Contact Us” section to an obscure “Documents” section, as the proposed law is not posted in the section of the site dedicated to to the cannabis law.

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. 

Read more posts about AnalysisCommunity MeetingsMBQ Cannabis Law or Presentations

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