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B.C. ignoring First Nations goes far beyond cannabis: It flies in the face of established Aboriginal Rights and Title in Canada

“Reconciliation is not just words. Reconciliation is action.”
– B.C. Premier John Horgan

From Original article by Amanda Siebert December 11 2020

Canada’s legal cannabis industry presents an agricultural opportunity of profound potential for First Nations and their governments; one could also argue that participating in such an industry is part of their inextinguishable Aboriginal rights and title. But in Canadian politics and especially in business, it has become the norm to see these rights and calls to fulfill promises of truth and reconciliation completely ignored.

The B.C. government, one that in November 2019 passed legislation to implement the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP), is being called out for continuing to avoid such calls, recently showing its true colours by blatantly ignoring a consortium of First Nations seeking government guidance.

Last month, Inside the Jar sat down with Chief Robert Gladstone of Shxwhá:y First Nation to discuss the aspirations he has for his community, the “glacial pace” at which his discussions with the provincial government have moved, and cannabis as a path to self-determination for First Nations seeking to improve their economies.

The context of our conversation shifted significantly last week when we learned Premier John Horgan and Solicitor General Mike Farnworth failed to attend a closed-door session virtual roundtable on cannabis hosted by Gladstone and other Indigenous leaders on December 2.

Foresight fails to pay off

Before then-MP Justin Trudeau promised Canadians ahead of the 2015 election that he would legalize cannabis, Chief Gladstone of the Shxwhá:y Village, a band of the Stó:lō Nation, had a hunch that cannabis would be part of the Liberal party’s platform.

“We started working early on with our attorneys,” he said. “I asked them to begin working on developing a regulatory structure that we could adopt within our band. We looked towards the future and we saw an emerging economic opportunity, one that would be a game changer for us.”

“Being cultural in our day was not something we just did on Saturdays, it permeated every aspect of our life.”

Gladstone has been the elected chief councilor of Shxwhá:y Village for nine years, serving his people and working with other local governments toward the best economic and cultural outcomes for a population that has been displaced time and time again from its land, first by settlers and then by rising waters of the Chilliwack and Fraser Rivers.

For Gladstone, preserving culture is at the heart of his work, and participating in Canada’s legal cannabis industry, one that’s expected to reach sales of $2.5 billion in 2020, presents a monumental opportunity to do so.

“One of the things that influences me as a leader are the elders that were my teachers—they always taught us about the value of our songs, our stories, our histories, our culture; the flavour of who and what we are,” he said. “Being cultural in our day was not something we just did on Saturdays, it permeated every aspect of our life.” Gladstone said his guiding principle comes from his grandmother, who “always stressed to us that we had beautiful, pristine lands and resources, and we needed to find a way someday to unlock their potential.”

“The one thing that we want to do in our village is develop an economic base that would provide jobs for our people, and meaningful jobs,” he said. “We want to provide a level of employment and a means to allow you the tools and resources to live a comfortable middle class life, just like everyone else.”

A lack of meaningful consultation to blame

Gladstone is in agreement with many Indigenous leaders across the country who say that consultation prior to legalization with Indigenous communities was largely inadequate.

While the federal government did hold consultations with some Indigenous groups ahead of legalization, the standing Senate committee on Aboriginal peoples was aware of the desire for increased consultation, and in May 2018 proposed that legalization be delayed so that Indigenous leaders could have more meaningful discussion with lawmakers. According to a CBC report, fewer than a dozen groups that advocate for Indigenous peoples were consulted by the federal task force on cannabis.

“Representatives of Indigenous communities from across the country told us they are not ready,” said committee deputy chair Senator Scott Tannas at the time. Health Canada argued a delay would put young people in Canada at risk, and the proposal was eventually shot down.

When Gladstone and councillors of Shxwhá:y Village learned the federal government had legalized cannabis and passed complete distribution authority to the provinces, his lawyers responded right away.

“We said, ‘we are creatures of the federal government, and should have been consulted directly because we need to be included in the market.’ We’ve stated all along that we stand in our inherent rights. We believe that we have inextinguishable rights and title, and we have an inherent right to establish our cannabis business, and trade and barter with other First Nations,” he said, adding that competition with federal and provincial regulators is not something his people are interested in.

“We also want to be real working partners with the federal and provincial government, to create a system of regulatory and licensing agreements with the province so that we could work together side by side, not against one another.”

Inherent rights unequivocally recognized

Gladstone points to several cases throughout Canada’s history, including the repatriation of the Constitution and the addition of Section 35 in 1982, clearly recognizing and affirming  treaty rights, as well as two Supreme Court cases, Delgamuukw and Tsilhqot’in, as direct recognition of Aboriginal rights and title.

“All of these things have recognized that there are three branches of government in Canada: federal, provincial, and First Nations,” he said.

In their attempts at relationship building with both levels of government, Gladstone said the message from his community to both has been clear: “We want to work beside you, we don’t want to work underneath you.”

The initial lack of consultation on behalf of both federal and provincial governments has led to several unfavourable outcomes for First Nations eager to participate in the cannabis industry, not the least of which is being forced to operate within the bounds of reserves while provincial regulators prevent them from participating in the legal market (while reaping all the tax benefits that go along with it).

“This whole movement of ours is based on the search and hope for self-determination and a better future for ourselves and our children.”

As a result, Shxwha:y’ Village has joined together with Cheam First Nation, Soowahlie First Nation and Sq’éwlets First Nation to form All Nations Cannabis, a cooperative of shops on reserves that intend to buy, sell, and trade with each other. Rather than going against existing laws that currently prohibit such activity, Gladstone and others in the coop want to codify these agreements in accordance with federal and provincial regulations.

As such, the Shxwhá:y First Nation has applied and expects to receive authorization from Health Canada to operate a 30,000 square-foot cultivation and processing facility located on Shxwhá:y reserve lands to supply retailers in the coop. Gladstone’s goal is to use the space to share agency and profit with other First Nations through a unique social enterprise model involving long-term registered retail lease agreements in communities throughout the province. On-reserve retail locations would be staffed by members of the partner nation’s community and each nation would receive 51 percent of operations.

“This whole movement of ours is based on the search and hope for self-determination and a better future for ourselves and our children,” Gladstone said. “It’s about livelihood.”

Lobbying for access

Because legalization at the federal level failed to provide a mechanism for the inclusion of First Nations specifically, Gladstone and others lobbied the province and met with Solicitor General Mike Farnworth to develop a legal framework that would enable the minister to make an agreement with a First Nation on behalf of the province.

Their social enterprise could be made possible if the First Nation was granted a Section 119 agreement. Section 119 of the Cannabis Control and Licensing Act (CCLA) pertains to potential for agreements between the province and an Indigenous nation.

Gladstone filed an application for a Section 119 agreement under the CCLA in July 2020. By mid-October, the Ministry of Public Safety had yet to respond to the First Nation’s application. While the Chief said the section is important, he’s encouraged the government to include provisions around trade and bartering among First Nations as well, something he said is recognized within their inherent rights.

“Section 119 is a beautiful thing,” he said, “but it’s something that has to be negotiated and worked on.”

Gladstone said the process of pursuing a federal license from Health Canada was challenging, but he felt there was support and cooperation from agency representatives. His experience with the provincial government has not been so positive, something he said is troubling especially in light of the provincial governments recent commitment to UNDRIP.

“As UNDRIP says, the government should assist in developing our economic capability, which will help us to generate employment and revenues that will support our programs on social health and welfare, on the path toward self-determination,” he said. “We don’t want to be welfare bums, we don’t want to exist forever on grants. We’re trying to create our own way.”

Nothing but delays

In an October 15 press release from the village, Gladstone described a clear “lack of willingness to facilitate Indigenous success in cannabis distribution.” 

“As British Columbia’s NDP government seeks re-election on a platform of equity, inclusion and commitment to reconciliation, Shxwha:y and their partners have experienced only delays and exclusion from an industry they were assured would include space for them,” said the release.

“With all due respect, there needs to be more of a concerted effort. There needs to be true actions. We opened the talks with him two years ago saying, ‘we don’t want to be left behind.’ One thing I want to remind him is we’ve not just come to the table with an empty ask. We’ve prepared within Section 119 a detailed working model involving distribution and supply that is viable.”

Gladstone told ITJ that while he had had positive conversations with Minister Farnworth in the past, his discussions with the province around cannabis were moving incredibly slowly, if at all.

“We’re trying to raise the standard of living for our people, and we’re trying to exercise our traditional inherent rights, and codify them and build new relationships in this day and age of what they call ‘reconciliation,’” he said. “I’m not just talking about the written word. I’ve said to political leaders many times, ‘what does reconciliation mean? What does UNDRIP mean?’ It means that Indigenous people of the world have suffered a loss of land, culture, livelihood, and it’s about trying to make direct and true amends, to build bridges.”

Gladstone said he believed based on previous meetings with Farnworth that the minister was sincere in his desire to build better relationships between the government and First Nations, but without a real commitment to improvement, his nation and others remain stuck in limbo.

“With all due respect, there needs to be more of a concerted effort,” he said. “There needs to be true actions. We opened the talks with him two years ago saying, ‘we don’t want to be left behind.’ One thing I want to remind him is we’ve not just come to the table with an empty ask. We’ve prepared within Section 119 a detailed working model involving distribution and supply that is viable.”

‘We brought the table to them… but they still didn’t come’

Despite several attempts and weeks of correspondence trying to secure attendance from both Horgan and Farnworth, neither responded to invitations to the December 2 online forum that the All Nations Chiefs had specifically initiated to obtain direction from the government on how the group could move forward in the legal industry.

“We needed government to come to the table to help us understand how to legally participate so we brought the table to them with this event,” said Darwin Douglas, Councillor for Cheam First Nation and CEO of All Nations Cannabis in a press release responding to last week’s news.

“We even set the table with our licensing proposal, but they still didn’t come. The time has come to move beyond nicely worded commitments and present real examples of government support for reconciliation,” he said. “Today, we remain on the fringes of an industry that we should have the equal right to participate in. Our rights are not recognized on our reserves, segregating our communities from creating a livelihood and fighting poverty.”

Douglas concluded: “We invite Premier Horgan to consider the implications of their failure to engage today. We invite them to live up to their commitments and to set a table for this important discussion with our communities.”

Though they have still failed to respond to All Nations Cannabis in the context of their Section 119 application, the Ministry of Public Safety issued a statement to By the Ounce journalist David Wylie, who covered the news in Castanet:

“The province is committed to supporting Indigenous participation in the emerging legal cannabis industry and always willing to sit down with Indigenous nations to talk about opportunities. We recognize that some Indigenous nations may have differing views with respect to jurisdictional responsibilities outlined in federal cannabis legislation, and are committed to understanding these perspectives.”

When asked what he would say to Premier Horgan at the roundtable, Gladstone, emphasizing the importance of friendship, replied to ITJ: “I would ask Premier Horgan to remember the spirit of UNDRIP and reconciliation, and what he felt in his heart that day he stood up in the legislature and said we’re in a new era, a new direction.”

In September, the day before it called an election, the B.C. government said it would improve cannabis policies to give Indigenous growers better access to retail locations and allow farm-gate sales, however these changes will not be implemented until 2022.

According to a September 2020 report from MJBizDaily, just four percent, or 19 of the 459 of cannabis licensees in Canada are affiliated with Indigenous groups. Just one is located on a reserve.

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