Former senator Dan Christmas says that little was put in place to include the First Nations communities when cannabis was first legalized in 2018 — and that’s causing problems.
“Cannabis retailers in my community (of Membertou) had no rules to follow,” he told the standing Senate committee for Indigenous People recently. “We basically had an unregulated industry at the beginning. It was because of all those issues and all of the community problems that arose, that we are doing this backwards.”
COMMON RULES
He said in Nova Scotia, there has been no opportunity to develop a common set of rules as has happened in other provinces such as Alberta where regulations are left up to the municipalities.
“It’s like trying to put the genie back in the bottle,” he said.
Christmas said the federal Cannabis Act as regulated in some provinces is failing to live up to the United Nations Declaration on the Rights of Indigenous Peoples’ intent of self-determination and governance of the health, safety and well-being of all First Nation communities as it relates to cannabis.
Christmas appeared before a recent meeting of the standing Senate committee as it continues looking into a report called “On the Outside Looking In: The Implementation of the Cannabis Act.”
The retired senator was one of several witnesses who spoke to the committee about the effects the Cannabis Act is having on Indigenous people.
Sara Mainville, a senior lawyer and managing partner with JFK Law LLP, a national Aboriginal law firm headquartered in Toronto said “speaking about inherent jurisdiction, Indigenous peoples have been managing resources and fulfilling their obligations to the land, waters and all creation since time immemorial.
“These obligations are not frozen in time but instead have meant managing resources as they arise in our communities, including when cannabis and cannabis products were legalized in October 2018.
“I’ve worked with communities such as Membertou First Nation, which is currently working on a draft cannabis law and engaging with the community despite tobacco tax enforcement happening on their reserve lands and Cannabis Act enforcement happening across Mi’kma’ki.”
Mainville has also worked with other communities in other provinces and it is clear that First Nations want to be able to enforce cannabis laws on their own lands.
“Many of my clients want to have licensed cultivation and processing facilities, which are federal jurisdiction, along with retail stores, which are provincial jurisdiction.”
She continued by saying that many First Nations “don’t have the friendliest environment for provincial relations” and haven’t been able to work together to have a clear solution to enacting laws.
TASKED BY CHIEF
Christmas, appearing before the Senate as an individual, has been tasked by Membertou chief and council to engage the community and draft a new cannabis law as part of that First Nation’s local governance.
He said he wanted to focus on the ability for First Nations to regulate the distribution, sale and possession of cannabis on First Nation lands.
Christmas said that during the Committee on Indigenous People’s pre-study of the original bill, the body believed that under section 35 of the 1982 Constitution Act, 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 – including regulating cannabis.
He proposed an amendment to the Cannabis Act for the Senators to consider.
The 105 senators in the Canadian Parliament are not elected but appointed by the Governor General of Canada under the advisement of the Prime Minister. Often referred to as the “Upper Chamber,” it is a body with more power than many people realize.
All bills from the House of Commons must pass the Senate to become law.
The amendment Christmas brought forward is a section he would like to see included in the Cannabis Act and reads: “The inherent right of self-government, recognized and affirmed by section 35 of the Constitution Act, 1982, includes jurisdiction in relation to health, safety and well-being, including legislative authority in relation to those services pertaining to cannabis and authority to administer and enforce laws made under that legislative authority.”
Christmas told the Senate committee that the Assembly of Nova Scotia Mi’kmaq Chiefs has unsuccessfully sought to work co-operatively with the Province of Nova Scotia about cannabis regulation.
“I am currently assisting my home community of Membertou by leading a community engagement process,” he said. “I strongly believe that First Nations have the right to enact their own laws in matters relating to their health, safety and well-being, including the regulation of cannabis.”
Christmas said the original Cannabis Act was silent on Indigenous self-government and lacked meaningful consultation with First Nations.
“The community approach is the right way,” he said.
“Just enforcing top-down laws has been a game that First Nations have played for a long time. I don’t think that’s the way to do cannabis in our communities.”
One of the sitting senators questioned Sara Mainville about the 2024 R. v Marshall et al. case out of Millbrook that may have set a precedent impacting the sale of cannabis on First Nations lands.
“It’s not necessarily a precedent,” Mainville said. “It’s basically a warning to everyone that if you are going to assert a section 35 right to ground your jurisdiction for simply opening up a store, it’s going to be very difficult.”
EXPENSIVE CASE
She said she works with First Nation communities in order to establish governance responsibility and authority for what happens on their lands.
“As an Aboriginal rights lawyer, one of the last things I wanted was a cannabis defence to go up against a Cannabis Act because a full cannabis defence is a million-dollar defence to bring a section 35 Aboriginal rights case in front of a court. It’s very expensive.”
Mainville said she recently met with retail store owners in Membertou.
“We heard how they are, in fact, very open to common rules,” she said.
Both she and Christmas spoke about the priority on safety for children and acknowledged that retailers are open to taking actions to protect them as well.
She said if everyone works together, it can be a win-win situation for everyone.
Rosemary Godin is the Local Journalism Initiative Reporter for the Cape Breton Post, a position funded by the federal government.
By Rosemary Godin, Local Journalism Initiative Reporter
Original Published on Jun 12, 2026 at 09:45
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