Written By: Sonya C Pighin
Date: July 8, 2019
Disclaimer: This Article represents a general overview of how a court may look at the validity, applicability and operability of provincial cannabis laws on-reserve. This is not intended to be used as a source of legal advice. If the reader would like to develop their own laws regarding cannabis on-reserve or determine how a court may respond to their specific indigenous laws regarding cannabis on-reserve, a fact-specific legal opinion must be sought.
INTRODUCTION
Canada’s historical criminalization of cannabis dates back to at least 1923 when Parliament enacted The Opium and Drug Act, which added cannabis to a list of already prohibited drugs[1]. Today, while cannabis has been decriminalized, its production, distribution, importation and sale are still highly regulated by federal and provincial governments. Pursuant to section 91 of the Constitution Act, Parliament, by and with the advice and consent of the Senate and the House of Commons of Canada, revised the Excise Act[2], 2001to include cannabis, and enacted theCannabis Act[3]. The Governor General in Council then made the Cannabis Regulations[4](the “Federal Regulations”). Together they provide a regulatory regime over cannabis production, distribution and sale. Pursuant to section 92 of the Constitution Act, the Legislature of British Columbia enacted the Cannabis Control and Licensing Act[5](the “CCLA”) and the Cannabis Distribution Act[6](the “CDA”). By provincial order in council, the Lieutenant Governor in Council made the Cannabis Licensing Regulation[7]. Together they provide a regulatory regime for the sale, supply, production, packaging, purchase and consumption of cannabis within the boundaries of British Columbia. Other provinces have enacted similar legislation but for the purpose of limiting the scope of this paper we will refer only to the CCLA.
Some aboriginal peoples in British Columbia have expressed a desire to create their own regulatory regimes over cannabis retail and production on their reserve lands and wonder whether they can successfully challenge the CCLA’s validity, operability or applicability on their reserve lands[8]. In this paper, we will explore whether aboriginal peoples may be successful in making constitutional challenges to this effect. However, due to the limited scope of this article, we will not explore arguments that may be made by all groups of aboriginal peoples. This article will not focus on aboriginal peoples who have a declaration of aboriginal title over their lands, which gives them certain rights, including rights to decide how their aboriginal title land will be used, economic benefits of the land, and proactive management of the land, subject to certain exceptions[9]. Nor will this article focus on aboriginal peoples in British Columbia who have treaties and self-governance agreements setting out their authority over matters such as business licensing and land use, some of which are subject to federal and provincial laws. This article will consider arguments that could be made by those aboriginal peoples who:
· do not have declarations of aboriginal title over their traditional territories,
· do not have treaties or self-government agreements,
· are designated as a band of Indians; and
· have authority to control the use, possession and occupation of their reserve lands through delegating federal legislation.
First, we will review the federal legislation that recognizes specified aboriginal peoples as a band of Indians and that grants bands of Indians control over the management of their reserve lands. Then, we will explore the legal doctrines of pith and substance, inter-jurisdictional immunity and paramountcy, and discuss whether those aboriginal peoples have a chance at succeeding in a constitutional challenge regarding the validity, applicability or operability of the CCLA with regard to their reserve lands.
BANDS OF INDIANS WITH AUTHORITY TO CONTROL MANAGEMENT OF THEIR RESERVE LANDS
Pursuant to section 91(24) of the Constitution Act, Parliament enacted theIndian Act[10]and First Nations Land Management Act[11], which grant a band of Indians authority to control management of their reserve lands. A“band” is:
… a body of Indians
(a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951,
(b) for whose use and benefit in common, moneys are held by Her Majesty, or
(c) declared by the Governor in Council to be a band for the purpose of [the Indian Act][12].
An “Indian” is “a person who pursuant to [the Indian Act] is registered as an Indian or is entitled to be registered as an Indian”, and “registered” means “registered as an Indian in the Indian Register”, which is a register maintained in accordance with specific rules set out in the Indian Act[13].
A band can obtain control over management of their reserve lands pursuant to the Indian Act, which grants them authority to enact bylaws affecting use and occupation of reserve lands, including a bylaw:
· to provide for the health of residents on the reserve[14];
· for the dividing of the reserve or a portion thereof into zones and the prohibition of the construction or maintenance of any class of buildings or the carrying on of any class of business, trade or calling in any zone[15];
· for the regulation of the use of buildings, whether owned by the band or by individual members of the band[16];
· for the regulation of the conduct and activities of hawkers, peddlers or others who enter the reserve to buy, sell or otherwise deal in wares or merchandise[17]; and
· with consent from the electors of the band, prohibiting the sale, barter, supply or manufacture of intoxicants on the reserve of the band, prohibiting any person from being intoxicated on the reserve, prohibiting any person from having intoxicants in his possession on the reserve, and providing for exceptions to any such prohibitions regarding possession and intoxication[18].
Pursuant to the First Nations Land Management Act, bands may also elect to create their own Land Code and enter into an Individual Agreement with Her Majesty, which together give the band power to enact their own laws respecting land use and economic development opportunities within their new land management authorities[19]. The self-government type powers a band may exercise pursuant to their own Land Code that relate to the regulation of cannabis on-reserve include the enactment and enforcement of laws regarding:
· interests or rights in and licences in relation to [their reserve] land and any matter arising out of or ancillary to the exercise of this power[20];
· the development, conservation, protection, management, use and possession of [their reserve] land[21]; and
· the regulation, control or prohibition of land use and development including zoning and subdivision control[22].
Such laws may also provide for enforcement measures, consistent with federal laws or the laws of the province in which the First Nation land is situated, such as the power to inspect, search and seize and to order compulsory sampling, testing and the production of information[23]. When aboriginal peoples enact a land code, no interest or right in or licence in relation to their reserve lands which are subject to the land code may be acquired or granted except in accordance with that land code[24].
CHALLENGING VALIDITY, OPERABILITY AND APPLICABILITY OF THE CCLA TO RESERVE LANDS
There are three ways aboriginal peoples may challenge the CCLA in relation to their reserve lands.First, aboriginal peoples may challenge the constitutionality of the CCLA, by claiming it is ultra viresand therefore not valid, insofar as it relates to their reserve lands, by reason of the pith and substance analysis. Next, an aboriginal group may challenge the constitutionality of the CCLA by claiming it is, in whole or in part, constitutionally inoperative in relation to the regulation of cannabis on reserve lands, by way of the doctrine of federal paramountcy. Finally, an aboriginal group may challenge the constitutionality of the CCLA by claiming it is, in whole or in part, inapplicable to the regulation of cannabis on reserve lands by reason of the doctrine of interjurisdictional immunity. In this part of the paper, we will review the legal thresholds that must be met for each type of constitutional challenge. In the following part, we will attempt to apply these legal thresholds to the CCLA, as it relates to reserve lands.
1. Challenging Validity of the CCLA Provisions Regarding Reserve Lands (Pith and Substance)
Where a court is considering a challenge to the CCLA under a pith and substance analysis, they must assess the specific provisions of the CCLA that regulate cannabis on reserve lands, read within the context of the CCLA as a whole, to determine their pith and substance[25]. If those provisions in themselves are not in pith and substance within the constitutional power of British Columbia’s legislature, then the court must ask if they are sufficiently integrated as a part of a valid legislative scheme[26].
The court must first determine the true nature of those sections of the CCLA dealing with cannabis affecting reserve lands for the purpose of identifying the “matter” to which those sections essentially relate. If the pith and substance of those provisions can be related to a matter that falls within the jurisdiction of the legislature of British Columbia, the courts will declare them intra vires. If, however, they can more properly be said to relate to a matter that is outside the jurisdiction of the British Columbia legislature, they will be held invalid owing to this violation of the division of powers.[27]. To do this, a court must complete a two-step pith and substance analysis, as follows:
1. First, the court must conduct a characterization analysis to determine the specific provisions’ main thrust, dominant purpose, or dominant characteristic: what in fact do those provisions do and why[28]. In doing so, the court must look at:
a. their purpose, within the context of the CCLA as a whole. This includes examining extrinsic evidence, like purposive clauses, preambles and the general structure of the CCLA, as well as extrinsic evidence, such as Hansard, minutes from debates, or other accounts of the legislative process; and
b. their effect, in the context of the CCLA as a whole, which is found in both the legal effect of the text and the practical effects that flow from their application. Merely incidental effects will not generally affect the constitutionality of an otherwise intra vires law[29]. However, there must be a rational connection between the impugned provisions and the broader objective of the regulatory scheme, as a matter of reason or logic, that shows the provisions serve the purpose of the law as a whole[30].
2. Next, the court must conduct a classification analysis to determine whether the matter of those provisions, in the context of the CCLA as a whole, comes within the powers of the legislature of British Columbia. This involves asking whether they relate to a head of power under which the legislature of British Columbia has authority under the Constitution Act[31].
If the Attorney General of Canada were to intervene in support of British Columbia in a case where aboriginal peoples are challenging validity of those CCLA provisions affecting reserve lands, such an intervention would not be conclusive of the matter, but the court would need to be particularly cautious if they decide to invalidate those provisions of the CCLA[32].
When a matter possesses both federal and provincial aspects, the “double aspect doctrine” allows concurrent application of both federal and provincial legislation. A federal law may govern the matter from one perspective while a provincial law governs it from another perspective so long as the objectives of each law are within Parliament and the province’s respective jurisdictions[33].
2. Challenging Operability of The CCLA on Reserve Lands (Federal Paramountcy)
The doctrine of federal paramountcy states that where the operational effects of a provincial law are in actual conflict with federal legislation, the federal legislation must prevail and the provincial legislation must be deemed inoperative to the extent of the conflict[34]. This doctrine applies in two situations. First, it applies where one law says “yes” and the other says “no”, so citizens are being told to do inconsistent things and left in a position where complying with one requires defying the other[35]. It is also applicable where applying the provincial law would frustrate the purpose of the federal law[36]. To determine whether the impugned legislation frustrates a federal purpose, it is necessary to consider the regulatory framework that governs the decision[37]. First, the purpose of the relevant federal statute must be established and then in must be proven that the provincial legislation is incompatible with that purpose[38]. Without more, permissive federal legislation will not be frustrated if provincial legislation does nothing more than restrict the scope of the federal permission[39].
3. Challenging Applicability of the CCLA to Reserve Lands (Interjurisdictional Immunity)
The doctrine of interjurisdictional immunity is used to protect that which makes certain works or undertakings, things (e.g., Aboriginal lands) or persons (e.g., Aboriginal peoples and corporations created by the federal Crown) specifically of federal jurisdiction[40]. Interjurisdictional immunity should only be considered in situations where there is prior case law providing for precedent of its use in a given situation[41]. As for how it applies:
[57] When interjurisdictional immunity applies, the impugned law is not rendered invalid; it is “simply inapplicable to the extra-jurisdictional matter”, and it is read down to limit the scope of its application: Hogg, at p. 15-28 (emphasis in original)[42].
Despite the absence of a law enacted by one level of government, the laws enacted by the other level of government cannot seriously or significantly impair the basic, minimum and unassailable content, or “core” of the first level of government’s jurisdiction[43]. The core of a federal power is the authority that is absolutely necessary to enable Parliament “to achieve the purpose for which exclusive legislative jurisdiction was conferred”[44]. It is the essential and vital elements of those undertakings that are to be protected[45]. However, if a case can be resolved by the application of a pith and substance analysis, and federal paramountcy where necessary, it is preferable to take those approaches, which are consistent with flexible federalism[46].
APPLYING THE LEGAL THRESHOLD TESTS TO CONSTITUTIONAL CLAIMS BROUGHT FORWARD BY ABORIGINAL PEOLE
Now that we have reviewed each of the relevant legal thresholds that must be met by an aboriginal group that wishes to challenge the constitutionality of the CCLA in its relation to reserve lands, we will turn our attention to an overview of what aboriginal peoples may argue to support their challenges and the manner in which British Columbia may respond to those arguments.
1. Pith and Substance Analysis
Aboriginal peoples who wish to challenge the CCLA based on its pith and substance will want to argue that the main thrust of those provisions affecting reserve lands are to restrict the band’s authority to control the use and possession of their reserve lands, as well as their authority to control the operation of businesses and retail activities on their reserve lands and to ensure the health of their residents, with particular attention on the health of children. Whereas aboriginal peoples would otherwise have control over these matters by way of delegated authority vis-a-visthe Indian Actand First Nations Land Management Act, the province uses the CCLA as a colorable attempt at gaining such control themselves.
In making this argument, aboriginal peoples may wish to rely upon Vancouver (City) v. Karuna Health Foundation[47], where two cannabis dispensaries challenged whether Vancouver’s zoning and licencing bylaws that allowed for medical marijuana related uses of land were ultra vires the City’s delegated authority from the province to regulate land-use and business regulation. The two dispensaries were refused business licences by the City and then claimed the City was using its bylaws to legalize or authorize non-medical cannabis sales[48]. The City, along with the Attorney Generals of British Columbia and Canada, claimed the bylaws were concerned with business regulation, land use, crime prevention, and public safety, all of which were valid municipal purposes under the Vancouver Charter, which granted the City bylaw making authority[49]. The BC Supreme Court decided the bylaws purpose was to regulate businesses and manage land-use in the City[50]. It was made clear in the bylaws themselves that they applied to and regulated existing and future medical cannabis stores, if such were permitted by federal legislation, and that all dispensaries would need to comply with federal and provincial laws as well[51]. The court found the effects of the bylaws were to regulate businesses and land-use, and to facilitate community planning, and that the pith and substance of them were land-use control and the regulation of business[52]. In this case, the court found that Laws governing land-use and business regulation fall within provincial jurisdiction with respect to “Property and Civil Rights in the Province” (s. 92(13)) and “Matters of a Merely Local or Private Nature in the Province” (s. 92(16))[53]and that any effects or overlap with federal legislative authority regarding the criminal law under s. 91(27) are merely incidental and do not render the City’s bylaws invalid[54].
If relying on Vancouver (City) v. Karuna Health Foundation, aboriginal people may wish to highlight the courts following statement:
[83]Retail cannabis dispensaries may well raise issues that touch upon health, safety, public nuisance, and youth exposure, but like every other business operating in a municipality, the operation of cannabis dispensaries may result in land-use conflicts, which will impact upon the local economy and character of a neighbourhood … the provisions of the zoning bylaw that specifically prohibited the use of land and buildings for the cultivation, storage, or sale of marihuana were, in “pith and substance”, the regulation of land and building use[55].
This is a relevant case because aboriginal peoples have the same authority over regulation of land and building uses on-reserve delegated to them under the Indian Actand First Nations Land Management Act.
Aboriginal peoples can further argue that a legal effect of the CCLA is that the rights of aboriginal peoples to use their lands for purposes that benefit their communities are restricted and their ability to open cannabis retail operations on-reserve are restricted to those circumstances deemed by the general manager to be in the public interest. Another practical effect of the CCLA is that it restricts aboriginal peoples’ ability to collect licensing fees that would help them combat health and safety issues related to cannabis use in their communities because persons wanting to operate cannabis retail stores will be deterred from doing so on-reserve if it means paying two application and licensing fees and direct reporting to additional governmental entities. Another practical effect of the CCLA is that it removes the aboriginal people’s capacity to ensure uses of their reserve lands are culturally appropriate. The CCLA grants a general manager authority to issue licences in the province for cannabis-related retail stores and marketing. On the one hand, it sets out that the general manager must not issue or amend a licence unless either the local government or the Indigenous nation for the area in which the establishment is proposed to be located or is located gives a recommendation that the licence be issued or amended[56]. However, on the other hand, it does not require the general manager to make their decision in accordance with that recommendation[57]. The final decision-making rests with the general manager. For the purposes of the CCLA, “Indigenous nation” includes a band within the meaning of the Indian Act[58]. The general manager may also cancel or suspend a licensee’s licence or require them to transfer it to a person at arm’s length from the licensee in certain circumstances, including where the licensee is convicted of an offence under the laws or bylaws of an Indigenous Nation, if the offence relates to their establishment or to the operation of their establishment[59]. The general manager may also suspend or cancel a licensee’s licence where the licensee does not have a valid licence, permit, registration or certificate they are required to have from an Indigenous nation[60].
While these provisions acknowledge that an Indigenous Nation may have their own laws in place, there is no requirement in the CCLA that a licensee comply with those laws. There is no obligation here for the general manager to cancel or suspend a licence. The general manager maintains full control over licensing decisions.
Aboriginal peoples may also argue that a practical effect of the CCLA is to undermine their creation of laws and bylaws affecting land use that comply with culturally appropriate decision-making procedures and keep their children safe. If a local government or Indigenous nation decides to give comments and recommendations, the CCLA states they must gather the views of residents of their area and take such views into account when determining whether to recommend the issuance or amendment to the licence, and those views must be gathered either by way of a public notice and written comments, a public hearing, a referendum, or some other method the Indigenous nation considers appropriate[61]. While the last part allows for some flexibility, the Provincial Regulation sets out that regardless of the manner in which those views are gathered, the comments and recommendations must meet the following requirements:
· the comments and recommendations must be in writing;
· the comments must include the views of the Indigenous nation on the general impact on the community;
· if the Indigenous nation has gathered the views of residents, the comments must include:
o the views of the residents, and
o a description of the method used to gather those views;
· the recommendations must include whether the application should be approved or rejected; and
· the recommendations must include the reasons on which they are based[62].
Aboriginal peoples could also argue that their position is supported by s. 69 of the federal Cannabis Act, which is a clear indication the federal government has jurisdiction but is granting delegated authority to the provinces to exercise that jurisdiction. S.69 provides that a person may sell or distribute cannabis if they are authorized to do so under a Provincial Act that contains the following measures:
· they may sell only cannabis that has been produced by a person that is authorized under the Cannabis Act to produce cannabis for commercial purposes;
· they may not sell cannabis to young persons;
· they are required to keep appropriate records respecting their activities in relation to cannabis that they possess for commercial purposes; and
· they are required to take adequate measures to reduce the risk of cannabis that they possess for commercial purposes being diverted to an illicit market or activity[63].
The aboriginal peoples may argue that without s.69 of the Cannabis Act, the province would have no authority over cannabis licensing on-reserve, which is otherwise a federal matter managed pursuant to s.91(24) by way of Parliament’s enactment of the Indian Actand First Nations Land Management Act. In making this argument, they may wish to rely upon the constitutional principle of parliamentary sovereignty which provides that Parliament, or a legislature, has authority to enact laws, as well as delegate to some other person or body certain administrative or regulatory powers, including the power to make binding but subordinate rules or regulations[64]. This is explained by the former Chief Justice Rinfret in Nova Scotia (Attorney General) v. Canada (Attorney General)as follows:
No power of delegation is expressed either in section 91 or in section 92, nor, indeed, is there to be found the power of accepting delegation from one body to the other; and I have no doubt that if it had been the intention to give such powers it would have been expressed in clear and unequivocal language. Under the scheme of the British North America Act there were to be, in the words of Lord Atkin in The Labour Conventions Reference [[1937] A.C. 326], "watertight compartments which are an essential part of the original structure."
Neither legislative bodies, federal or provincial, possess any portion of the powers respectively vested in the other and they cannot receive it by delegation. In that connection the word "exclusively" used both in section 91 and in section 92 indicates a settled line of demarcation and it does not belong to either Parliament, or the Legislatures, to confer powers upon the other. (St. Catharine's Milling Co. v. The Queen, [[1887] 13 Can. S.C.R. 577 at 637], by Strong J.; C.P.R. v. Notre Dame de Bonsecours Parish [[1899] A.C. 367, -- per Lord Watson and Lord Davey -- See Lefroy's Canada's Federal System, 1913, p. 70 note 10(a)])[65].
In enacting the Indian Actand First Nations Land Management Act, Parliament created a comprehensive regime for control over use of reserve lands. Parliament cannot then delegate their primary legislative authorities with respect to use of reserve lands, over which they have exclusive constitutional jurisdiction, to a legislature[66].
British Columbia could counteract aboriginal peoples’ arguments by pointing out that nowhere in the CCLA does it state a purpose of controlling reserve lands or land use in general. In making this argument, British Columbia may rely on the second reading of Bill 30, which became the CCLA. During this second reading, the Honorable M. Farnworth who introduced it to legislature described it as one that supports the government’s goals of prioritizing health and safety, protecting children and youth, reducing crime and the illegal market and supporting economic development opportunities in the province[67]. At second reading, the Honorable M. Morris also described the CCLA as addressing public safety and health and mitigating the involvement of organized crime[68]. Much of the discussion in debate focussed on the differentiation of legal and illegal cannabis, the issues that arise for health and safety when it comes to children and youth and the risks of organized criminal infiltration of the cannabis industry. At the second reading, there was nominal discussion around section 136, which authorizes the Lieutenant Governor in Council to make regulations for treaty first nations law-making in respect of cannabis on their treaty lands. There was absolutely no discussion regarding section 119, which authorizes agreements with Indigenous Nations, or sections 33 to 35 which address consultations with Indigenous Governments regarding licencing[69]. Last, British Columbia could assert that in the context of the overall CCLA scheme, reserve lands are only incidentally affected by the CCLA and that their inclusion is necessary for the effective operation of what is an otherwise constitutionally sound regulatory regime.
British Columbia may also rely upon Bruce v. Yukon Territory (Commissioner)[70], to support a claim that the CCLA is in pith and substance a law about intoxicants, despite their incidental effect on aboriginal peoples. In that case, Justice Lilles of the Yukon Territorial Court considered whether a liquor prohibition regulation was ultra viresthe commissioner who passed it under his authority granted through the Yukon Liquor Act. In deciding the issue, Justice Lilles discussed the legislation, which allowed for prohibitions to be passed following approval from the community to which the prohibitions would apply:
26. … While the legislation incidently impacts or affects Indians who live within the defined geographic area, its pith and substance is intoxicants. Indians have not been singled out for special treatment, although the majority of persons affected are Indian due to their chosen place of residence." Even if Indians were singled out, the regulation's dominant feature is not "Indians" quo Indians; see Bank of Toronto v. Lambe (1887), 12 App. Cas. 575 (privy Council) and the discussion by Hogg supra at para. 15.5(b). The purpose and effect of the law is to regulate intoxicants within the Territory.
It is uncertain whether aboriginal people would be successful in convincing a court that the matter of the provisions of the CCLA affecting reserve lands is to control the use and possession of their reserve lands and to take control over business licencing, or whether British Columbia would be successful in convincing a court that the matter of the CCLA is to address issues relating to public safety, health and organized criminal activity. Although it can’t be denied that British Columbia has a strong argument regarding the matter of the CCLA based on this theoretical assessment, due to the limited length of this paper we will continue exploring the parties’ potential arguments on an assumption that the court decides the matter of the CCLA is control over land use and business licencing.
Once a court concludes upon the matter at hand, its next task would be to classify where that matter falls within the division of powers set out in sections 91 and 92 of the Constitution Act. The relevant sections of the Constitution Actthat a court must consider are:
91… the exclusive Legislative Authority of the Parliament of Canada extents to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, –
…
24. Indians and Lands Reserved for the Indians
92 In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, –
…
13. Property and Civil Rights in the Province
…
16. Matters of a Merely Local or Private Nature in the Province
First, we will begin with an overview of how aboriginal peoples may argue that the matter of land use and business licencing is within the core of s.91(24). Then, we will turn our attention to how British Columbia may respond to these arguments.
In arguing that land use and business licencing is within the ambits of s.91(24), Aboriginal peoples may wish to rely upon Surrey (District) v. Peace Arch Enterprises Ltd., in which the British Columbia Court of Appeal considered whether construction of an amusement park within the Semiahmoo Indian Reserve, that is also located within the outer boundaries of the Corporation of the District of Surrey, was subject to the Corporation of the District of Surrey’s zoning and health laws[71]. In considering this question, the Court concluded that:
If [the lands in question here are “lands reserved for the Indians” within the meaning of that expression appearing in sec.91(24) … then one must ask whether there is any room for provincial and municipal legislation which purports to regulate how land shall be used and what types of buildings may or may not be erected on the land. The zoning bylaws of the municipality do spell out very explicitly the manner in which the land can and cannot be used, and the same may be said of the regulations under the Health Act of the province…
In my view the zoning regulations passed by the municipality, and the regulations passed under the Health Act, are directed to the use of the land. It follows, I think, that if these lands are "lands reserved for the Indians" within the meaning of that expression as found in sec. 91(24) of the B.N.A. Act, 1867, that provincial or municipal legislation purporting to regulate the use of these "lands reserved for the Indians" is an unwarranted invasion of the exclusive legislative jurisdiction of Parliament to legislate with respect to "lands reserved for the Indians"[72]
The court found that while the lands had been conditionally surrendered to Canada for the purposes of a leasehold interest being granted to Peace Arch Enterprises Ltd., they were still lands reserved for Indians within the meaning of s.91(24)[73].
Aboriginal peoples’ may also wish to rely on Delgammukw v. British Columbia[74], where Justice Lamer of the SCC discussed s.91(24) of the Constitution Actin his consideration of who has jurisdiction to extinguish aboriginal title. Justice Lamer explained that s.91(24) protects a “core” of Indianness from provincial intrusion[75]. In doing so he stated:
178 … this core … encompasses … the whole range of Aboriginal rights that are protected by s.35(1). Those rights include rights in relation to land; that part of the core derives from s.91(24)'s reference to "Lands reserved for the Indians". But those rights also encompass practices, customs and traditions which are not tied to land as well; that part of the core can be traced to federal jurisdiction over "Indians"…[emphasis added][76]
They may also wish to raise the courts attention to Kitkatla Band v. British Columbia[77], where the SCC described when a provincial law would be ultra viresthe province’s authority based on its singling out of aboriginal peoples, bringing it within the ambit of s.91(24):
66 … First, the Court must remember the basic assumption that provincial laws can apply to aboriginal peoples; First Nations are not enclaves of federal power in a sea of provincial jurisdiction: see Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695. The mere mention of the word "aboriginal" in a statutory provision does not render it ultra vires the province.
67 Second, it is clear that legislation which singles out aboriginal people for special treatment is ultra viresthe province: see Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031
68 Nevertheless, "singling out" should not be confused with disproportionate effect. Dickson J. said in Kruger, at p. 110, that "the fact that a law may have graver consequence to one person than to another does not, on that account alone, make the law other than one of general application"
In the Kitkatla case, the question was whether British Columbia’s Heritage Conservation Act, which placed restrictions on the cutting of culturally modified trees and granted the province power over decisions regarding such cutting, was ultra vires the authority of the province. The court decided that it was not as it did not single out aboriginal peoples or impair their status or condition as Indians, and its main purpose was heritage conservation. In making this decision, the court specifically pointed out that the culturally modified trees in question were not located on an Indian reserve but on Crown land[78].
Further support for the “singling out” approach is found in Tsawwassen Indian Band v. Delta (City), where the SCC elaborated on what “singling out” may look like by quoting the words of Professor Hogg who said:
… A Provincial law that singled outIndians orIndian reserves for special treatment would run the risk of being classified as a law in relation toIndians or Indian reserves; and, if so classified, the law would be invalid.
… A provincial law that affects "an integral part of primary federal jurisdiction overIndians and lands reserved for Indians" will be inapplicable toIndians and lands reserved for Indians, even though the law is one of general application that is otherwise within provincial competence. This vague exception, which has been framed as precluding laws that impair the "status or capacity" of Indians, or that affect "Indianness", has its analogy in the immunity from provincial laws that affect a vital part of undertakings within federal jurisdiction [emphasis added][79].
In both the Kitkatlaand Tsawwassencases, the courts allude to “Lands Reserved for Indians” as a separate part of s.91(24) from “Indians”. In Kitkatla, the court makes note of the fact that the culturally modified trees were not located on reserve lands. This begs the question of where the court may have gone had they been on reserve lands and highlights that the SCC is cognizant of the differentiation between “Indians” and “Lands Reserved for Indians”. In Tsawwassen, the court specifically elaborates on what would happen when a provincial law singles out “Lands reserve for Indians” for special treatment.
In addition to the court’s decisions of what’s included in ss.91(24), 92(13) and 92(16), aboriginal peoples’ may argue that when ss.91 and 92 were developed, the drafters of the Constitution Actmade a conscious decision to include “Lands Reserved for Indians” within s.91(24) despite their decision to have “Property” included in s.92(13). This supports a view of reserve land use decisions as falling within s.91(24). Aboriginal peoples may also raise the manner in which Parliament has exercised their jurisdiction over “Lands Reserved for Indians”. They have done so in their enactment of the Indian Act, much of which places restrictions on how reserve lands can be used and by whom they may be used. They have also done so in their enactment of the First Nations Lands Management Act, which very clearly sets out a federal intention to authorize aboriginal peoples to take control over reserve land use by way of enacting laws. This is illustrated in Westbank First Nation v. British Columbia Hydro and Power Authority, where Justice Downs of the BC Supreme Court stated:
24 Obviously, the Indian Act as a whole is legislation the pith and substance of which relates
to Indians and Indian Lands under s.91(24). The British Columbia Court of Appeal described the
Indian Act's intent or purpose as "the protection of Indians in most phases of their ordinary life,
including ... management of their properties": see Brown v. R. in right of B.C. et al., [1980] 3
W.W.R. 360 at p. 372 [ [1979] 3 C.N.L.R. 67 at p. 78] [emphasis added][80].
While it is a weak argument, aboriginal peoples’ may also attempt to rely on Derrickson v. Derrickson, in which the SCC decided that the right to possession of lands on an Indian reserve is manifestly at the very essence of the federal exclusive legislative power under s.91(24) and that provincial legislation cannot apply to rights of possession in reserve lands[81]. However, if relied upon by aboriginal peoples it is likely British Columbia would respond by claiming that a cannabis retail licence does not give a person a right of possession in reserve lands. It only gives them a right to the manner in which they may use reserve lands within their possession.
British Columbia could counter aboriginal peoples’ arguments by referring to Nil/tu’o Child and Family Services Society v. BC Government and Services Employees’ Union, where Chief Justice McLachlin and Justice Fish’s dissenting opinion describes limits to s.91(24) as applying predominantly to the status and rights of “Indians”:
[70] We may therefore conclude that the core, or “basic, minimum and unassailable content” of the federal power over “Indians” in s. 91(24) is defined as matters that go to the status and rights of Indians. Where their status and rights are concerned, Indians are federal “persons”, regulated by federal law: see Canadian Western Bank, at para. 60.
[71] … The cases illustrate matters that may go to the status and rights of Indians. These include,
inter alia:
· Indian status: Natural Parents v. Superintendent of Child Welfare, [1976] 2 S.C.R. 751, per Laskin C.J., writing for himself and three other Justices, at pp. 760-61, and per Beetz J., writing for himself and Pigeon J., at p. 787;
· The “relationships within Indian families and reserve communities”: Canadian Western Bank, at para. 61;
· “[R]ights so closely connected with Indian status that they should be regarded as necessary incidents of status such for instance as registrability, membership in a band, the right to participate in the election of Chiefs and Band Councils, reserve privileges, etc.”: Four B, at p. 1048;
· The disposition of the matrimonial home on a reserve: Paul v. Paul, [1986] 1 S.C.R. 306;
· The right to possession of lands on a reserve and, therefore, the division of family property on reserve lands: Derrickson v. Derrickson, [1986] 1 S.C.R. 285, at p. 296;
· Sustenance hunting pursuant to Aboriginal and treaty rights, such as the killing of deer for food: Dick;
· The right to advance a claim for the existence or extent of Aboriginal rights or title in respect of a contested resource or lands: Delgamuukwand Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; and
· The operation of constitutional and federal rules respecting Aboriginal rights: Paul v. British Columbia, among others.
British Columbia could also revisit Vancouver (City) v. Karuna Health Foundation Ltd. to support that lands use and business regulation are within their jurisdiction as the BC Supreme Courtsaid “Laws governing land-use and business regulation fall within provincial jurisdiction with respect to “Property and Civil Rights in the Province” (s. 92(13)) and “Matters of a Merely Local or Private Nature in the Province” (s. 92(16))[82]”.
It is possible that, even if the CCLA is characterized as a law affecting land use and business regulation, the court could determine the regulation of such matters falls within the authority of the Province as well as Parliament and that the CCLA as well as any aboriginal laws enacted under the Indian Actor First Nations Land Management Actwould be valid. The court could likely determine that from one perspective, land use and business regulation falls within the authority of the Province who has interests in restricting zones within which cannabis retail can operate and a business licencing oversight scheme, both of which provincial actions will contribute to an overall strong provincial economy, the safety of employees (despite whether they work on or off reserve lands), safety of children and youth, and combatting against the influence of criminal organizations. On the other perspective it may be seen as within the authority of Parliament to protect and oversee how “Lands Reserved for Indians” are managed, including with regard to zoning and business licencing matters.
2. Paramountcy Analysis
Now, let’s look at the arguments that could be put before a court regarding the CCLA and the paramountcy doctrine. An aboriginal group wishing to challenge the operability of the CCLA as it relates to reserve lands could try to claim that in operation the CCLA grants a person a licence to do something that the aboriginal people can say no to through the enactment of their own law that says there will be no cannabis retail operations on reserve. On the one side, the CCLA says “yes”, you can operate a cannabis retail shop, and on the side the aboriginal people would be saying “no”, you cannot do this. Licensees under the provincial CCLA will be told two inconsistent things. The aboriginal people can support their argument by referring to the Derrickson v. Derricksoncase, where the SCC decided provisions of British Columbia’s Family Relations Actdealing with real property could not extend to reserve lands because there was a direct conflict between the Indian Act, which required all transfers of lawful possession in reserve lands to be approved by the Minister, and the Family Relations Act, which empowered the courts to deal with land and declare the ownership or lawful possession of property[83].
If British Columbia wanted to refute this argument, they would want to claim that it should fail on the basis that the CCLA is permissive legislation. A Licensee is told they “may” operate a cannabis retail shop but they are not required to do so in the face of the aboriginal people’s law that prohibits it. In essence, the aboriginal law would do no more than restrict the scope of an otherwise valid provincial permission.
3. Interjurisdictional Immunity Analysis
Now, let’s explore the last chance arguments that could be made by aboriginal peoples before a court with regard to constitutionality of the CCLA on the basis of interjurisdictional immunity. The first step, is for aboriginal peoples to assert that prior case law exists to support the inapplicability of the CCLA to reserve lands. They can do this by raising the example of Bearspaw, et al v. PanCanadian Petroleum Ltd.[84], to show that Indian Lands are in fact within specific federal jurisdiction, bringing their argument within the parameters of an interjurisdictional immunity analysis. In that case, the Alberta Court of Queen’s Bench considered when a provincial law that is otherwise valid would apply to Indians and lands reserved for the Indians. In doing so, Justice McIntrye summarized the law as follows:
82The generally-accepted rule is that "provincial laws apply to Indians and lands reserved for the Indians", subject to five important exceptions (P.W. Hogg, Constitutional Law of Canada, 3d ed. (Toronto: Carswell, 1996) at 27-10).
85The first exception is conflict or paramountcy. This provides that where a provincial law conflicts with a federal law, the latter is paramount. In other words, the provincial law does not apply.
89 The second exception is, for lack of a better term, "Indianness". That is, an otherwise acceptable provincial law is inoperable as to Indians and land reserved for Indians if it affects "an integral part of primary federal jurisdiction" in that field (Four B Manufacturing Limited v. United Garment Workers, [1980] 1 S.C.R. 1031 at 1047). One category of this exception relates to land use. In Four B, the court held that provincial labour laws applied to a business located on reserve lands, with Indian ownership and with Indians as a majority of the employees. This decision was based on the operational nature of the business (the production of shoe components).
…
92 The Alberta Attorney General cited cases that were found not to deal with land use and, therefore, not to fall within the Indianness exception. The most relevant to the present case is Rempel Brothers Concrete Ltd. v. Chilliwack (District), [1994] 5 W.W.R. 122 (B.C.C.A.). There, the municipality's by-law charging a fee for soil removal and disposal on lands within the municipality, including a reserve, was valid. The reasoning was that the by-law did not purport to regulate use of land on a reserve, but only soil removal. The court held that the "pith and substance" of the bylaw was regulating removal or deposit of large quantities of soil to pay for road damage caused by heavy-laden gravel trucks. The court also found no conflict between federal and provincial laws, although it left open the possibility in the future.
While the next case predates the current interjurisdictional immunity test, British Columbia may raise it in support of their position that liquor control laws do not conflict with the core of s.91(24). In R. .v. Gloade[85], a Micmac Indian appealed a conviction of unlawfully keeping liquor for sale contrary to Nova Scotia’s Liquor Control Act, claiming it did not apply to him while on reserve land. The Micmac Indian’s argument was that the field of liquor control had been occupied by s.94 of the Indian Act, which created an offence of a person selling an intoxicant to any person on a reserve, or to an Indian outside a reserve[86]. Justice MacDonald of the Nova Scotia Court of Appeal held that “the provincial Liquor Control Act applies to Indians without touching on their Indianness and therefore applies to Indians ex proprio vigore, i.e. by their or its own force.[87]” Similarly, the SCC has decided that while provincial zoning laws are in applicable to federal aeronautical undertakings, the provision of liquor is not an integral part of Parliament’s federal aeronautical undertaking, which includes not only regulation of aircraft operations but also of airports[88]. This is because while in some circumstances the provision of food and beverages on an aircraft will affect a vital part of an airline’s operations, such as on a long flight where the public need to eat, the provision of alcohol would not do this[89]. Similar argument could be raised by British Columbia, who could say that while food and beverages may form an important part of the way in which aboriginal peoples undertake their land use and business licencing decisions, for example if a decision-making structure is physically within a feast hall, the provision of cannabis for the purpose of that feast would be unnecessary.
CONCLUSION
The legal thresholds that have been set for constitutional invalidity, inoperability and inapplicability are high thresholds that will only apply in very limited circumstances to s.91(24) claims. The courts seem hesitant to find provincial laws that otherwise operate validly are inoperable or inapplicable in relation to reserve lands. For the most part, the courts focus on the “core” of s.91(24) being “indianness” and pay little attention to the second part of s.91(24) which speaks to “Lands Reserved for the Indians”. While an aboriginal group may be unsuccessful in claiming that the CCLA is unconstitutional, they still have it within their power to enact and enforce their own laws. This may be beneficial to aboriginal peoples who want to prohibit the retail of cannabis on their reserve lands but it will come at the cost of enforcement measures, which include ensuring adequate training for staff so they don’t inadvertently breach anybody’s legal rights under the Canadian Charter of Rights and Freedomsor procedural rights as set out in administrative law, both of which would be applicable to their enforcement actions. Where an aboriginal group wants to make it easier for someone to get a cannabis retail licence on-reserve, or where they want to use regulation of cannabis as a means of revenue generation for the purpose of combatting issues related to the use of cannabis on their reserve lands, they may just be out of luck.
[1]The Opium and Drug Act, S.C. 1923, c.22;R. v. Malmo-Lavine; R. v. Caine, [2003] 3 S.C.R. 571, at para 31 [“Malmo-Lavine”]
[2]Excise Act, 2001 (S.C. 2002, c. 22)
[3]Cannabis Act, S.C. 2018, c.16
[4]Cannabis Regulations, (SOR/2018-144)
[5]Cannabis Control and Licensing Act[SBC 2018] Chapter 29 [“CCLA”]
[6]Cannabis Distribution Act[SBC 2018] Chapter 28
[7]Cannabis Licensing Regulation, B.C. Reg. 202/2018, O.C. 528/2018 [“Cannabis Regulation”]
[8]This is personal knowledge I hold as an aboriginal law practitioner
[9]Tsilhqot’in Nation v. British Columbia, [2014] S.C.R. 257, at para 73 [“Tsilhqot’in”]
[10]Indian Act,(R.S.C., 1985, c.I-5) [“Indian Act”]
[11]First Nations Land Management Act, (S.C. 1999, c.24) [“FNLMA”]
[12]Indian Act, at s.2(1) – “band”
[13]Indian Act, at s.2(1) – “Indian”, “registered”, “Indian Register” and ss. 5 & 6
[14]Indian Act, at s.81(1)(a)
[15]Indian Act, at s.81(1)(g)
[16]Indian Act, at s.81(1)(h)
[17]Indian Act, at s.81(1)(n)
[18]Indian Act, at s.85.1
[19]FNLMA, at s.6; Also see: Canada, Indigenous and Northern Affairs Canada, First Nations Land Management, Online: https://www.aadnc-aandc.gc.ca/eng/1327090675492/1327090738973
[20]FNLMA, at ss.20(1)(a) & (e) and
[21]FNLMA, at s.20(1)(b)
[22]FNLMA, at s.20(2)(a)
[23]FNLMA, at s.20(3)
[24]FNLMA, at s.16(1)
[25]Reference Re Securities Act, 2011 SCC 66, at para 91
[26]Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture),[2002] 2 S.C.R. 146 at paras 56 to 58 [“Kitkatla”]
[27]Canada Western Bank v. Alberta, 2007 SCC 22, at para 26
[28]Quebec (Attorney General) v. Canadian Owners and Pilots Association,[2010] 2 S.C.R. 536, at paras 16 and 17 [“Quebec”];Reference Re Securities Act, 2011 SCC 66, at para 63 [“Securities Reference”]
[29]CBA v A, at paras 27 & 28; Quebec, at para 18; Securities Reference, at para 65
[30]R. v. Comeau, 2018 SCC 15,at para 114
[31]Quebec, at para 22
[32]Kitkatla, at paras 72 and 73
[33]Securities Reference, at para 66
[34]Canada Western Bank v. Alberta, 2007 SCC 22, at para 69 and 71 [“CWB”]
[35]CWB, at para 71
[36]CWB, at para 75
[37]Quebec, at para 66
[38]Quebec, at para 66
[39]Quebec, at paras
[40]CWB, at para 41
[41]CWB, at para 77; Marine Services v. Ryan Estate, 2013 SCC 44at para 50
[42]Marine Services v. Ryan Estate, 2013 SCC 44, at para 57
[43]CWB, at paras 34 and 48 to 50; Quebec, at paras 43 and 45
[44]Quebec, at para 35
[45]CWB, at para 51
[46]CWB, at paras 38, 42 and 77
[47]Vancouver (City) v. Karuna Health Foundation, 2018 BCSC 2221 [“Karuna”]
[48]Karuna, at paras 57 and 58
[49]Karuna, at para 59
[50]Karuna, at para 69
[51]Karuna, at paras 75 and 76
[52]Karuna, at paras 78 and 79
[53]Karuna, at para 81
[54]Karuna, at para 82
[55]Karuna, at para 83
[56]CCLA, at s.33(1)
[57]CCLA, at s.33(5)
[58]CCLA, at s.1 – “Indigenous nation”
[59]CCLA, at s.37(1)(b) and 37(2)
[60]CCLA, at s.37(4)
[61]CCLA, at s.33(3)
[62]Cannabis Regulation, at s.13(5)
[63]Cannabis Act, at s.69
[64]Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, at para 73 [“Securities Reference”]
[65]Nova Scotia (Attorney General) v. Canada (Attorney General),[1951] S.C.R. 31, per C.J. Rinfret
[66]Securities Reference, at paras 75 and 76
[67]British Columbia, Legislative Assembly, Hansard41stParliament, 3rdSession, No. 30, (14 May 2018) at 4:10pm
[68]Ibid, at 4:10pm
[69]See: British Columbia, Legislative Assembly, Hansard41stParliament, 3rdSession, No. 30, (14 May 2018; 16 May 2018)
[70]Bruce v. Yukon Territory (Commissioner),[1993] Y.J. No. 189 [“Bruce”]
[71]Surrey (District) v. Peace Arch Enterprises Ltd., 1970 CanLII 1118 (BCCA), at p.382 [“Surrey v. Peach Arch”]
[72]Surrey v. Peace Arch, at p.383
[73]Surrey v. Peace Arch, at p. 387
[74]Delgamuukw v. British Columbia,[1998] 1 C.N.L.R. 14 [“Delgamuukw”]
[75]Delgamuukw,at para 177
[76]Delgamuukw, at para 178
[77]Kitkatla
[78]Kitkatla, at para 74
[79]Tsawwassen Indian Band v. Delta (City), [1998] 1 C.N.L.R. 290, at para 81
[80]Westbank First Nation v British Columbia Hydro and Power Authority, [1997] 2 C.N.L.R. 229, at para 24
[81]Derrickson v. Derrickson, [1986] 1 S.C.R. 285, at para 41
[82]Karuna, at para 81
[83]Derrickson v. Derrickson, [1986] 1 S.C.R. 285, at paras 64 and 65
[84]Bearspaw, Chiniki and Wesley Bands v. PanCanadian Petroleum Ltd., [1998] A.J. No. 381
[85]R. v. Gloade,[1987] 1 C.N.L.R. 87 [“Gloade”]
[86]Gloade, at p.3
[87]Gloade, at p.5
[88]Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581, at paras 72 to 75
[89]Ibid
