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Report of the Standing Senate Committee on Aboriginal Peoples (Subject matter of Bill C-45, Cannabis Bill)

Report of the Standing Senate Committee on Aboriginal Peoples (Subject matter of Bill C-45, Cannabis Bill)

Report of the Standing Senate Committee on Aboriginal Peoples (Subject matter of Bill C-45, Cannabis Bill)

Hon. Lillian Eva Dyck:

Honourable senators, on May 1, 2018, the Standing Senate Committee on Aboriginal Peoples tabled our report outlining the committee’s findings and recommendations from its study of the subject matter of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, insofar as it relates to the Indigenous peoples of Canada. The committee’s study took place between February and April 2018.

In response to witness testimony, the committee’s report includes 10 recommendations divided into two parts. The first two recommendations are recommended amendments to Bill C-45, and the second set of recommendations are policy recommendations to the Government of Canada and relevant government departments. These recommendations were made by witnesses but are addressed either in other pieces of legislation, are not within the scope of Bill C-45, or are non-legislative matters within the authority of the federal government.

In the case of the excise tax recommendation, the Senate itself is prevented from making an amendment that would result in the appropriation of funds or a new taxation measure. This is an important fact to note and underlies part of our recommendation to delay the coming into force of the bill.

With regard to those we heard from and what they said, the committee recognizes the complexity of studying the implications of the proposed legislation of cannabis on Indigenous communities. However, given the time constraints, the committee is fortunate to have heard from a wide range of witnesses.

The committee’s report is informed by testimony held over five meetings in Ottawa, one meeting in Winnipeg, as well as briefs received from organizations and individuals.

The committee heard from a diverse group of 23  witnesses, including Indigenous organizations, First Nations, Inuit elders, police services, Indigenous cannabis industry groups and the Manitoba Advocate for Children and Youth representing the Canadian Council of Child and Youth Advocates.

The committee’s report is organized around the following themes raised during its hearings: consultation, public education, mental health and addiction services, justice and policing, jurisdiction, and economic development.

With regard to consultation, we heard that Indigenous communities and organizations were not consulted on the proposed legalization of cannabis. Where consultations had taken place, the committee heard that these sessions were inadequate, providing few opportunities for meaningful Indigenous participation. With regard to public education, the committee heard that Indigenous communities lack culturally specific public education materials on this subject of cannabis and its health effects.

With regard to mental health and addictions, we heard from witnesses, including Indigenous elders, Indigenous communities and front-line service providers who raised concerns about the lack of access to and funding for culturally specific mental health and addictions services.

With regard to justice and policing, the committee heard about the need, due to the proposed legislation of cannabis, for proactive policing focused on prevention, but that the resources and labour force were insufficient to help move beyond crisis mode response.

With regard to jurisdiction, the committee heard that First Nations were in agreement that they should have a mechanism available to them as an essential element of self-government to permit or prohibit access to cannabis on their own territories.

For example, while First Nations can ban alcohol from their reserves, they will not be able to ban cannabis unless other measures are enacted.

With regard to economic development, the committee heard that some communities are interested in economic development opportunities as a result of the proposed legislation on cannabis. First Nations, Indigenous businesses and organizations proposed ways to allow for First Nations to collect and distribute excise tax revenue charged to on-reserve cannabis manufacturers.

The committee, therefore, has recommended an amendment to delay the coming-into-force of the bill for up to a year to allow time for Indigenous communities and the federal government to negotiate and agree on the following five deliverables: first, the implementation of a cannabis excise tax revenue-sharing regime; second, increased funding for mental health and addiction services; third, the development and funding of culturally sensitive public education materials on cannabis; fourth, the establishment of additional residential addiction treatment centres; and, fifth, the recognition and affirmation of the inherent right of Indigenous communities to self-government, including the right to regulate cannabis.

The committee also recommends an amendment prescribing preferential production licences for producers on lands under the jurisdiction or ownership of Indigenous communities.

The report also provides eight policy recommendations to the Government of Canada related to the implementation of the proposed legislation of cannabis as well as the necessary health and societal supports required including: First, developing and providing stable funding for culturally specific education materials about cannabis; second, enabling Indigenous communities to restrict cannabis on their lands; third, respecting the right of Indigenous communities to establish their own cannabis and taxation regimes; fourth, increasing funding on an urgent basis for mental health and addictions programs, residential treatment centres, health services, traditional healing centres and police services that serve Indigenous people and communities in anticipation of increased demand due to the proposed legalization of cannabis; fifth, increasing the number of residential addictions treatment centres in anticipation of increased demand due to the proposed legislation of cannabis and the establishment of residential addictions treatment centres for Indigenous peoples in Nunavut, the Northwest Territories and the Yukon; sixth, committing cannabis excise tax revenues towards investments in front-line mental health and addiction service delivery, treatment facilities in the vicinity of communities, public health programs and recreational infrastructure in the communities; seventh, working with First Nations and First Nations institutions to allow them to collect excise tax on cannabis production; and, eighth, reserving 20 per cent of all cannabis licences for production activities on lands under the jurisdiction or ownership of Indigenous governments.

In conclusion, the committee heard that the proposed legislation of cannabis may have a disproportionate impact on Indigenous peoples. Indigenous peoples must be meaningfully consulted on legislation that affects them, including the proposed legislation of cannabis. The committee ultimately believes that Indigenous peoples have the inherent right of self-determination, including the appropriate law-making authority to make meaningful decisions that affect the lives of their people and communities, such as regulating cannabis.

The committee supports Indigenous communities that want to fully participate in the cannabis market, especially given the economic opportunities missed by these communities in the past. Interested Indigenous communities should have the appropriate tools to seize economic opportunities as they arise.

Due to the legislative structure and drafting of Bill C-45, we found and were told that there was no appropriate mechanism to amend certain clauses of the bill in order to address our concerns. Moreover, on the issue of the specific recommendation on the excise tax, we were advised that this would be beyond the scope of the Senate as it dealt with taxation and appropriation measures.

We are hopeful this report and its recommendations will provide clear guidance to the Standing Senate Committee on Social Affairs, Science and Technology to guide their deliberations on Bill C-45. We are specifically asking for a response without delay from the Government of Canada with regard to our eight policy recommendations, which are fundamental to accommodating the needs of Indigenous peoples with respect to legalizing cannabis.

Honourable senators, it’s interesting that only yesterday, at the AFN Special Chiefs Assembly, there was a resolution passed with regard to this bill entitled “Federal Recognition of First Nations Jurisdiction over Recreational and Medicinal Cannabis.” It’s important to note for the record part of what this resolution states. I’ll read several of the clauses. Under the “Whereas,” section, it states:

D. As it currently stands, Bill C-45 makes no room for the inclusion of First Nations governments within the proposed Act.

E. The federal and provincial governments must recognize and respect First Nations sovereignty and jurisdiction over their reserves and traditional territories.

F. In December 2017, the federal government reached a deal with the provinces to divide the excise duty collected on the sale of cannabis, a 75-25 split in favour of the provinces, owing to the costs they will incur with legal cannabis.

G. The federal government has committed to a new First Nations fiscal relationship based on First Nations fiscal powers to implement First Nations jurisdiction in areas such as cannabis regulation. However, the lack of First Nations inclusion in the cannabis tax framework is a missed opportunity for the federal government to demonstrate its commitment to a nation-to-nation relationship that incorporates First Nations governments into the federation.

It goes on to state:

THEREFORE BE IT RESOLVED that the Chiefs-in-Assembly:

1. Direct the Assembly of First Nations to inform Canada that First Nations must be consulted by the federal and provincial governments to ensure their full involvement in the design of licensing, production, distribution, and sale of legalized cannabis.

2. Call upon Canada to amend Bill C-45 to recognize that First Nations jurisdiction supersedes provincial legislation and regulation as it pertains to cannabis licensing, production, distribution and sale of legalized cannabis.

I put this on the record, honourable senators, because it underscores that what the committee heard was something that is felt all across the country. It is shown in the resolution that was passed just yesterday at the Special Chiefs Assembly. Thank you.