On April 29, the Senate of Canada’s Standing Committee on Indigenous Peoples convened to hear perspectives on the implementation of the federal Cannabis Act – what has been working, what needs to change, and how Indigenous governments can be better supported in their control and regulation of cannabis. Sara Mainville, Managing Partner of JFK Law, appeared as a witness before the Committee and spoke about the models that have worked for First Nations clients enacting cannabis laws, as well as some of the concerns they have about bearing the cost and responsibility without federal support or recognition. First Nations have ready-made solutions, but this requires Canada coming to the negotiation table with a willingness to collaborate with and support Indigenous governments.
Sara previously appeared before the Senate Committee in October 2022 and was referenced in their June 2023 interim report titled On the Outside Looking In: The Implementation of the Cannabis Act and its effects on Indigenous Peoples, where she emphasized the need for a new approach within cooperative federalism based on negotiated agreements (or coordination agreements) between First Nations and Canada. She highlighted that Indigenous knowledge needs to play a key role in jurisdictional discussions with an end goal of Indigenous self-determination and decision-making about how to regulate and control cannabis in Indigenous communities. Most recently, the Senate Committee on Indigenous Peoples was tasked with considering Canada’s response to concerns previously raised about gaps in cannabis legislation, highlighted in their 2023 report. Hearing from the witnesses at the recent Senate Committee meeting, it became clear that more needs to be done. There is a need for meaningful dialogue and collaboration between all levels of government.
Former Senator Dan Christmas of Membertou First Nation also provided his thoughts, outlining some proposed changes to the Cannabis Act that would recognize the rights of Indigenous governments to regulate cannabis, and calling on the Committee to adopt the amendment. Senator Christmas was quoted as saying that “the Cannabis Act has failed to accommodate First Nations’ jurisdiction to regulate the health, safety and well-being of its communities as it relates to cannabis.” He also pointed out that the Cannabis Act as it currently exists does not align with the federal United Nations Declaration on the Rights of Indigenous Peoples Act, which recognizes Indigenous People’s right to self-determination.
Such jurisdictional challenges are often worsened by misconceptions and a lack of willingness to work with Indigenous governments to find a better path forward. In Nova Scotia, the Premier recently publicly conflicted with Mi’kmaq leaders[1] about the regulation of cannabis sales and distribution, highlighting Nova Scotia’s position that the Mi’kmaq do not have a treaty right to sell (and regulate) cannabis in their communities.[2] Based on these remarks, it seems like Nova Scotia is misinformed about the 2024 decision in R v. Marshall et al., a decision that JFK Law has previously written a blog about. It is ill-advised to rest on these preliminary decisions about how Cannabis Act enforcement can root out the opportunity now available to First Nations in Nova Scotia. These public pronouncements do nothing but create misconceptions about First Nations exerting jurisdiction over cannabis licensing and sales. Nova Scotia should be cautious about asserting bald statements of criminality, painting an unfortunate stereotype of lawlessness in First Nation communities. At the same time, relying on the provinces to work with First Nations on cannabis regulation creates inequity across the regions of Canada, leaving First Nations to carry the burden of slow or meaningless consultations. Such an approach by governments serves nobodies’ best interests.
Above all, First Nations governments need to be supported in their traditional and community-based lawmaking processes, especially as it relates to drafting laws and regulations related to cannabis and cannabis products in their communities. Storeowners are likely to be challenged again and again to prove a commercial right to trade in cannabis, while the better jurisdictional assertion is for First Nations to commit to regulate the commercial trade themselves. This approach should be bolstered by an act of “legislative reconciliation” as offered by Sara and Senator Dan Christmas. Senator Dan Christmas’ proposal is amending the Cannabis Act to allow for First Nations jurisdiction to sit alongside provincial jurisdiction, while Sara Mainville’s proposal is creating a new regulation under the Cannabis Act to support a safe supply being available to First Nation licenced cannabis stores.
Sara and JFK Law are honoured to be working with numerous clients who are asserting and exercising jurisdiction over the regulation of cannabis and cannabis products. There is no one-size-fits-all approach to regulating cannabis or enacting a cannabis law that meets the needs of the specific Indigenous community. An important step forward would be having the support of the federal and provincial governments to implement these necessary changes and to ensure that respectful dialogue can take place.
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[1] CBC News, April 5, 2026, N.S. premier blasts First Nation highway blockades, calls for RCMP to be respected.
[2] The Chronicle Herald, April 5, 2026, Premier Houston says the Mi’kmaq don’t have a treaty right to sell pot … do they?