Cannabis is emerging as a new battleground over Mi'kmaw rights
Some unauthorized store owners are asserting they have a treaty right to sell cannabis
It's no mistake that Thomas Durfee calls his cannabis and cultural arts store in north-end Dartmouth, N.S., a "truckhouse," a reference to trading posts outlined in a 1752 treaty signed between a Mi'kmaw chief and the British governor of Nova Scotia.
It's that treaty that Durfee says will be central to his defence to charges laid following a January police raid on his Amu Leaf store, joining other cases where Mi'kmaw operators are claiming the right to sell marijuana outside Nova Scotia regulations that restrict its retail to a Crown corporation.
"I believe as long as we're fighting, as long as we're using wisdom and education to move forward, then they don't really have a choice but to allow us to live in prosperity, peace and friendship, and to the best of our advantages," Durfee, who is Mi'kmaq, said in an interview. "They have to uphold that treaty."
While Mi'kmaw treaty rights have long been asserted in the fisheries, most prominently in the Nova Scotia lobster industry and increasingly with lucrative baby eels, cannabis is emerging as a contentious new legal and social battleground since its legalization in 2018.
But those claiming the right to sell marijuana face significant hurdles to prove it under Supreme Court of Canada precedents that date back more than two decades, one of which has become the standard "test" in such cases.
The question had been set to come to a head this summer, with a multi-day hearing scheduled in a case involving a band councillor from a central Nova Scotia First Nation.
Chris Googoo, who was recently re-elected in Millbrook First Nation, was challenging two charges he faced under the Cannabis Act related to a December 2020 RCMP search of a dispensary he runs on reserve land in Cole Harbour, N.S.
In a legal filing in the case, federal prosecutor Michael Taylor outlined a series of elements he said the Supreme Court of Canada requires a defendant to prove in order to successfully claim a treaty or Aboriginal right under Section 35 of the Canadian Constitution.
The Peace and Friendship Treaty of 1752 outlined that "said Indians shall have free liberty" to bring to sale "skins, feathers, fowl, fish or any other thing they shall have to sell."
But the Crown argues, citing the landmark 1999 Marshall decision, that to prove a treaty right, there must be evidence that the item or commodity was being traded at the time, or it was "reasonably contemplated by the parties to the treaty."
In order to prove an Aboriginal right, according to the brief, a defendant must follow the test outlined in the Supreme Court's 1996 Van der Peet decision. This means they must show that the "practice, custom or tradition" existed before European contact, that it was "integral" to a community's way of life, and that the modern right has a "reasonable degree of continuity" with the practice of the past.
The constitutional challenge launched by Googoo won't go ahead, as he was recently acquitted of the charges by a judge.
But it does reveal a crucial question at the heart of similar treaty rights cases that could come down the pipeline: Did Mi'kmaw communities trade in cannabis historically? That's far from clear.
Some historians have pointed to the French apothecary Louis Hebert as the person who first planted cannabis, in the form of hemp used for clothing and rope, in Nova Scotia in the early 1600s.
But it also appears cannabis was growing wild in parts of North America when Europeans arrived, as noted by French explorer Jacques Cartier during his travels along the St. Lawrence River.
A 2022 brief filed in the Googoo case by his lawyer doesn't claim the Mi'kmaq were selling or using marijuana hundreds of years ago, but instead points to medical cannabis as a "plant medicine."
"The Aboriginal approach to traditional healing and plant medicine," the brief said, "has been in existence among the Mi'kmaw people long before first contact with Europeans."
The legal landscape may shift, however. In a recent Quebec decision concerning two men from Kahnawà:ke, south of Montreal, accused of dodging tobacco import taxes, the judge recast the test for claiming Aboriginal and treaty rights.
"The court also viewed economic development as a generic right that was shared by pretty well all Indigenous peoples," said Roger Townshend, a long-time lawyer practising Aboriginal law.
In doing so, the judge rejected the standard pre-European-contact test, which has been criticized for being difficult to meet and for "freezing" certain rights in time by ignoring their evolution, according to lawyer Lara Koerner-Yeo.
She said the Quebec case is also significant because the judge relied on the United Nations Declaration on the Rights of Indigenous Peoples, which the federal government has agreed to implement under 2021 legislation.
The case has been appealed by the Quebec government, but has not yet been litigated in the province's highest court or in the Supreme Court of Canada, both of which could reject the findings of the judge.
The federal Cannabis Act delegated the regulation of the sale and distribution of cannabis to the provinces, and the federal government has been criticized for not consulting in a meaningful way with First Nations.
In Nova Scotia, the provincial government decided cannabis could only be legally sold through the Crown corporation Nova Scotia Liquor Corp. There is currently only one NSLC store on a reserve in Nova Scotia, at Eskasoni First Nation in Cape Breton.
Even so, numerous unauthorized dispensaries have popped up. Patrick Kaizer, who opened Treaty Nugz Truck House on the Gold River reserve in southwest Nova Scotia in January, is operating without the approval of Acadia First Nation (also known as Wasoqopa'q First Nation).
He said he is prepared to be raided and charged by RCMP, but maintains he has a treaty right to sell cannabis, which he views as far less harmful than alcohol and of medicinal value.
"If the government can sell cannabis, then we should be able to sell cannabis as well," he said in an interview. "We were never brought to the table for discussions about anything to do with cannabis-related in the government."
Acadia Chief Deborah Robinson did not reply to interview requests, but a notice posted to the band's website in December said it has not authorized any cannabis stores, and warned that those that do open without approval are "illegal and will be closed down."
The band has said it has the inherent right to self-govern over issues of health, safety and welfare in its communities, including regulating cannabis. But it has cast doubt on whether there is a treaty right to sell cannabis.
"The advice we have received is that the retail sale of cannabis would be difficult to protect as an Aboriginal right or as a treaty right, since retail sale of similar products in the 1700s would be very difficult to prove," according to a 2020 update from chief and council.
Millbrook First Nation, which has a number of unauthorized dispensaries on its reserves, imposed a moratorium on new cannabis stores in 2021 that will remain in place until the community can adopt its own regulations.
A report summarizing consultations with Millbrook members two years ago noted that given cannabis is organic, some young people argued they had a right to earn a "moderate livelihood" from its sale, a reference to the treaty right that's been asserted in the fisheries.
Elders, however, worried about the proliferation of dispensaries on the reserve and how it might normalize marijuana use among youth. They were also concerned operators were getting rich while others were not, creating a divide between "have's and have not's," the report said.
Chief Bob Gloade told CBC News that the band's proposed Cannabis Control Law is still in draft form and is being presented to the newly elected council. He declined to say whether he believes individual band members have a treaty right to sell cannabis.
In a February 2023 letter, Millbrook executive director Claire Marshall said band administrators "have been active in the deterrence of new shops" and added that those erected before the moratorium are unlicensed and could still be raided by the RCMP.
Durfee, the recently charged founder of Amu Leaf, which is not on reserve land, was so open about his intentions to sell cannabis that he hand-delivered letters last May announcing his store to Halifax Regional Police and city hall.
He vows to keep pressing ahead in the courts.
"Patience is virtue," he said. "I'm only 40 years old, so I am in it for the long haul."
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