A Nova Scotia judge has dismissed the arguments of four defendants who claimed they had treaty and aboriginal rights to sell cannabis at dispensaries on Indigenous land north of Halifax.
In a decision released Thursday, Provincial Court Judge Ronda Van der Hoek sided with the Crown, stating that two expert reports submitted by the defendants failed to substantiate their claims. Consequently, the defendants can no longer argue for constitutional exemptions.
“I grant the [Crown’s] application to summarily dismiss the constitutional issues, based on the information before me at this time,” Judge Van der Hoek stated, deeming the application for constitutional arguments “manifestly frivolous.”
In Nova Scotia, cannabis sales are exclusively managed by the Nova Scotia Liquor Commission, with all products subject to provincial and federal duties.
The four defendants were charged under the federal Cannabis Act for illegally possessing cannabis for sale, distributing illicit cannabis, and failing to pay federal duties.
Two defendants claimed exemption from federal cannabis laws as operators of an Indigenous business on the Millbrook First Nation, asserting their right to run a parallel system based on their band membership.
Judge Van der Hoek referenced the Supreme Court of Canada’s confirmation that two Mi’kmaq treaties from the 1700s granted the aboriginal right to trade, but limited this right to items traditionally harvested through hunting, fishing, and gathering before European contact.
“The relevant time period … is prior to European contact,” the judge noted. “The claimant must demonstrate that a practice, custom, or tradition was integral to the Indigenous community’s distinctive existence and relationship to the land in the period before European contact.”
The Crown argued there was no historical evidence that the Mi’kmaq community used or traded psychoactive cannabis before European contact.
Judge Van der Hoek found the expert reports lacked evidence that cannabis was used or traded by the Mi’kmaq, other than as hemp.
The respondents have provided no argument whatsoever to support a modern interpretation of such trading evolving to include the sale of cannabis and the avoidance of duties pursuant to the [federal] Excise Act,” the decision stated.
The defendants also argued that the federal government failed to consult the Mi’kmaq before enacting the Cannabis Act. However, Judge Van der Hoek clarified that Ottawa’s duty to consult Indigenous Peoples does not extend to the enactment of legislation criminalizing their conduct.
“They are unable to advance the duty to consult argument based on the exercise of legislative authority alone,” she concluded.
Judge Van der Hoek emphasized the significance of decisions affirming and defining aboriginal and treaty rights for Indigenous communities and all Nova Scotians.
“The court is aware that we are all treaty people, but how the treaties are interpreted must be based on a foundation that warrants consideration. At this time, that foundation has not been established for cannabis sales outside the lawful regime, and the existing regime applies to all Nova Scotians.”
