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Legal Opinion Prepared for AFN Outlines Indigenous Jurisdiction Over Cannabis

The Assembly of First Nations has published a presentation they obtained from MLT Aikins on the possible paths to indigenous jurisdiction over cannabis.

The first option would be to exercise Aboriginal Rights, which are vaguely defined in the Constitution Act of 1982. It is often up to the courts to decide if Aboriginal Rights apply by using a test known as the Van der Peet test; which mostly involves proving that it was an original Right practiced before the arrival of Europeans.

The second path would be to invoke Aboriginal Title, this essentially means proving ownership of the land in question through continuous and exclusive occupation.

The last and possibly most difficult path would be to assert Aboriginal Treaty Rights. The reason this may be difficult is that treaties are open to interpretation and it is up to courts to determine the original intent of signatories that are long since dead. However, the Supreme Court has upheld that historical treaties may be interpreted to apply to modern legislation such as the Cannabis Act.

You can view the entire PowerPoint presentation here or download it here.

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