On July 5, the Mohawk Council of Kahnawà:ke (“MCK”) announced the signing of a Memorandum of Understanding with Health Canada (“MOU”) which allows MCK to establish its own laws and regulations regarding the production and sale of cannabis within their territory – the full statement is available here.

The Kahnawà:ke First Nation is located on the banks of the St. Lawrence River near Montréal, Québec. The MOU is the first agreement to establish a formal relationship between a First Nation and the federal government in relation to cannabis cultivation.

Background

Since the legalization of cannabis in 2018, provincial and federal laws surrounding the production and sale of recreational cannabis have caused significant uncertainty regarding the jurisdiction of cannabis-related activities on reserve. As we discussed in our blog posts First Nations and Cannabis Jurisdiction: The Calm before the Storm? and Williams Lake First Nation: First to Enter into Cannabis Agreement with the BC Government, this uncertainty has led to Indigenous communities across Canada asserting jurisdiction over the regulation of cannabis within their territories, and some leveraging this asserted jurisdiction to create competitively positioned businesses in the cannabis industry.

The Kahnawà:ke established a framework for the production and sale of cannabis in their territory long before the signing of the MOU. In December 2018, MCK enacted the Kahnawà:ke Cannabis Control Law with the goal of protecting the health and safety of their community by restricting access to cannabis and cannabis products, and deterring the production and sale of illicit cannabis in their territory. The Kahnawà:ke were also in negotiations with Canopy Growth Corp. to build a large production facility on their territory, before the plans fell through.

Memorandum of Understanding

Letsénhaienh Tonya Perron, Kahnawà:ke’s lead negotiator on the cannabis file, stated that the MOU “sets out the terms and conditions that will govern the sharing of information between Health Canada and MCK, as well as the Kahnawà:ke Cannabis Control Board (“KCCB”), with respect to cannabis cultivation and processing licences” and “is an important step in the ongoing work to create a safe and well-regulated industry within the territory.” The MOU provides for a dual licensing system, requiring the issuance of a licence from both the KCCB and Health Canada in order to legally cultivate and/or process cannabis within the territory. The MOU additionally provides for cooperation between Health Canada and the KCCB for inspections; information sharing between Health Canada and the Kahnawà:ke Peacekeepers; and Health Canada providing assistance to the KCCB in order to acquire more expertise in the oversight of their cannabis supply chain.

The eventual goal of the agreement is for the Kahnawà:ke to legally regulate and operate the cannabis industry within their territory absent any assistance from Health Canada. “Within our cannabis control law, it specifically states that the Health Canada permit is only necessary until we develop our own expertise in that area,” said Perron, “It’ll then be pushed out since there will be no need for it anymore.”

What does this mean?

The agreement will hopefully pave the way for other Indigenous communities within Canada to establish similar systems of lawful cannabis regulation that both recognize Indigenous jurisdiction and autonomy, while also reducing the potential for tainted and non-compliant cannabis products reaching consumers. “My hope is that for those First Nation communities that want to develop something along those lines that we’ve paved the way for, these laws don’t give up their jurisdiction, it doesn’t talk about jurisdiction. It really talks about a coexistence and being on equal footing” stated Perron. A spokesperson for Health Canada was also hopeful that the MOU could serve as a template for other First Nations interested in developing their own cannabis industry.

Given the potential lucrative opportunities the production and sale of cannabis provide, First Nations across the country continue to regulate the production and sale of cannabis pursuant to their own laws, outside the federal and provincial licensing regimes. The federal government may look to enter into similar agreements as the MOU to reduce the cannabis grey market and ensure the safe and effective regulation of cannabis on reserves.

Want More?

For more information on this subject, or if you’re interested in how we can help your community or business navigate these issues, please contact Yvan Guy Larocque.

A special thank you to our summer student, Iain Thomas, for his contributions to this blog post!