Hon. Lillian Eva Dyck:
I was not planning to speak today, but I have been inspired by the previous speakers.
First of all, I would like to thank Senator Eggleton and the committee members because you had an enormous task, and you held your marathon sessions and produced a report with many amendments. I very much appreciate the fact that you did consider the report from the Aboriginal Peoples Committee seriously, and you mentioned it in the observations, which is good, but, as my colleague Senator Patterson said, it is not good enough.
It’s really sad that we are in this situation partly because of the way our Parliament is structured. We are in this situation where we have a law of general application — the cannabis law, because it’s amending the Controlled Drugs and Substances Act — which then applies across the country, including on reserves, and so that takes away some of the section 35 constitutional rights of Indigenous people to govern themselves.
Of course, now we’re in an age where we’re talking about nation-to-nation relationships and the ability of Indigenous people to govern themselves. This law of general application rams right up against that. They’re conflicting laws, and we have not sorted that out yet. That’s one of the reasons we are in this pickle, if you want to call it that, that we are faced with a law that does interfere with section 35 rights. We are also faced with the Indian Act, which regulates what goes on on reserves, and because the Indian Act does not mention cannabis or marijuana, then individual bands, individual reserves, individual First Nations cannot legally pass bylaws to ban cannabis from their reserves.
Similarly, they are not legally able to sell it, although some are doing that. In some of the Mohawk reserves, they have already set up cannabis shops, and they are selling it, but it’s what is called a “grey market.” It is being done, but it is not legal.
We have these conflicting laws, and then we also have a quandary that in the Senate we know that First Nations should be allowed to have the excise tax revenue just like the provinces are getting, but because we are in the Senate, we cannot propose an amendment to do that. Our committee could not do it; the Finance Committee could not do it. The provisions for taxation measures are in Bill C-74. When we got it, we could not amend that to include what we want done either. Our hands are tied in many ways to do what we know is the right thing to do. That’s the quandary we are in.
It’s frustrating. It’s sometimes mind-boggling. All these constraints prevent us from amending the bill. It is not amending simply just to get the revenue. Because once you put those excise tax measures into the appropriate authorities, the Excise Tax Act and the First Nations Fiscal Management Act, then the First Nations have the ability not only to sell and make money, but they can regulate and pass those bylaws that say, “We are banning cannabis from our reserve.”
There is a debate as to whether or not prohibition works. I don’t think anyone has ever conducted a study to see whether prohibition works on reserves. It may not work in the mainstream community, but I don’t think we know whether or not it works on First Nation reserves. In fact, one of the comments that Senator White made during committee was that, from his experience as an RCMP officer, those reserves that were dry, that had banned alcohol, had a lower rate of crime.
The other quandary we have is that there is no Indigenous lens on this bill. There should be because the impacts of drugs, we know, are much more severe in Indigenous communities. Not because we are genetically inferior, but because of the socio-economic conditions that we find ourselves in in many remote reserves. And, unfortunately, with the things that happened at residential schools and through colonialization, you have communities that are not functioning properly, and people in those communities turn to various drugs and alcohol to help them cope.
So we have a vulnerable community. There should have been an Indigenous lens. There are promises made that the government is now working on a new First Nations fiscal management framework. This fits into that perfectly.
The cannabis legislation and regulation secretariat, in their material given to various committees — and Senator Dean passed this one around — it talks about the Government of Canada respecting and committing to nation-to-nation engagement. With respect to cannabis legislation, it says that Canada will engage closely with Indigenous communities representative organizations on issues of particular concern, including public health issues, economic perspectives and public education.
That’s in a written document, a very fancy little PowerPoint, and yet that did not happen. We had the working task force that said that we did consultation. In the news, Anne McLellan said, “We heard their concerns.” They were concerned about the excise tax revenue and the harm to communities, but yet that is not in the report. It’s in our report.
We did the real consultation. Consultation means you actually listen and try to address their concerns. You try to bring it forth. You try to find a solution to what they brought forth. It is more like a cooperation. That task force or working force, or whatever they called it, may have talked to people, but they clearly listened and forgot. Our committee heard those concerns. We heard those concerns very clearly. We had the solutions. We found out we could not implement what we heard.
Here we are saying that we know what needs to be done. The excise tax is not simply about money; it’s about getting control so you can ban it and regulate it in your own community. With the tax revenues, you could funnel those toward residential treatments for those who become addicted to offset culturally appropriate education.
Well, look where we are today, senators. Look at the rates of smoking and alcohol addiction on reserves. Public education has not worked because it’s not culturally sensitive. If we don’t have culturally sensitive materials at hand, it’s not going to do any good. It may be that the communities are in such despair that they may not work. In my mind, I’m sorry, I believe a delay is necessary. Although there may be up to 60,000 Canadians now who have been charged — and that’s a concern — they can get an expungement. They can pay a $631 fee and get their conviction expunged.
There is also talk of amnesty. I still believe a delay is necessary because there is potential for harms. You have to weigh that with the harms that are happening in the vulnerable, mostly northern communities, where there are incredibly high rates of mental unwellness and incredibly high rates of suicide. The person who came to us from the native alcohol drug and safety committee — whatever the committee is called — talked about the kids that came into residential treatment. Honourable senators, 79 to 80 per cent of them were cannabis users. How will this help us unless we take the proper measures? That’s why, in our first round, we asked for the delay. We knew we wouldn’t get it but that’s why we asked for it. Thank you.
Some Hon. Senators: Hear, hear!
Senator Patterson: Would the senator take a question?
Senator Dyck: Yes.
Senator Patterson: Senator, we heard that many First Nations are interested in participating in the economic opportunities flowing from the production of cannabis. Is it your understanding, from what the committee heard, that unless the law is changed to give First Nations a share of the excise tax for production of marijuana on First Nation reserves, First Nations who participate in the economic opportunities to produce cannabis will be required to collect and submit the excise tax to Canada?
Senator Dyck: I don’t think I heard you clearly. Could you repeat the last part of the question?
Senator Patterson: What I meant was that unless the excise tax issue is dealt with, and the bill is passed as it is, if First Nations are producing marijuana on reserve, they will have to pay an excise tax like everybody who manufactures marijuana will have to pay under this law of general application.
Do you believe that, under the law, First Nations who do produce marijuana on reserve will be required to collect the excise tax for Canada and submit it to the Government of Canada?
Senator Dyck: Yes, that’s my understanding, although I do believe there will be some communities who will refuse to do that and will operate their business and enter this grey market that has been happening with things like cigarettes, and so on. It will create situations that are not good for anyone.