Wednesday, October 19, 2022

Skeena MLA Ellis Ross takes lead for Opposition Liberals on discussion of Cannabis Control Act Amendments, consultation process with First Nations

The BC Government's plans for some amendments to the Cannabis Control Act framed much of the discussion from Tuesday's afternoon session of the BC Legislature, a discussion which featured BC Liberal MLA for Skeena, Ellis Ross prominent with questions for the Government side of the House.

The opening salvo in the lengthy exchanges between the MLA and Solicitor General Mike Farnworth puts some focus on the Government's plans of implementation of UNDRIP and whether suitable consultation with First Nations was taken on as part of the amendments. 

I sound like a broken record here, because we've been having this discussion about UNDRIP for the past four years at least, in terms of the commitments that were made by this government. Back then, the discussion was that not only would every bill be consulted with in terms of the legislation coming out of this building, but also, all the laws would be aligned with the principles of UNDRIP.

Mr. Ross making note of some terminology on the issue from the Solicitor General.

Notification is not consultation. In fact, the process for consultation is defined very clearly in the court cases that actually dictate the duty and the honour of the Crown — specifically, the Haida court case versus B.C. of 2004. It's got to be a deep consultation. It can't be just notification, or it can't be just a process for a First Nation to let off steam and then the government goes back to decide whatever they wanted to do in the first place. 

Now, normally, I would agree with the Solicitor General in terms of the technical nature of this bill. But using the government's own language when we're debating UNDRIP, it was going to be taken to a higher level. 

And we're talking about a higher level than, say, what the court said about Chilcotin. Granted, the bill that was passed in this House is very vague. It's very general. 

And a lot of the principles in that bill have already been accomplished or are already in place for many First Nations. 

But the issue here is the legal definition of "consultation." The duty to consult was actually hired by the government's own conversation around what they would do once UNDRIP was passed, and we have not seen that commitment actually materialize here. 

All we've seen are the reasons why this government didn't consult the true titleholders of B.C, which are 203 communities in B.C. 

And the reasons we're getting are because there was notification or "we consulted an advocacy group." 

So I heard the Solicitor General say that there will be future consultations. I don't mean to put words in the Solicitor General's mouth, but there will be further consultations with the true rights and titleholder of B.C., moving forward on Bill 30, I believe. 

Am I correct in saying that?

Minister Farnworth's reply, while not specific to the Cannabis themes, did offer a glimpse to how the Province is moving forward.

I thank the member for his question. And in my comments — not related specifically to this particular bill, but rather to the broader policy questions, which take a lot more time to develop — all First Nations are going to be invited to take part in those discussions around those broad policy questions. -- Solicitor General Mike Farnworth

The conversation on process and consultation carried on over the course of a few hours, with the Skeena MLA making note of where the current amendment sits, as well as other legislation and how those elements may be viewed by First Nations Governments.

I seriously doubt many First Nations read the original Cannabis Control and Licensing Act, let alone whether or not they'll have the time or the capacity to read the amendment we're talking about here today. 

So, given that the government is actually adding the Civil Forfeiture Act and the Cannabis Distribution Act to the Cannabis Control and Licensing Act. 

Is the government of the opinion that the Cannabis Control and Licensing Act and the Civil Forfeiture Act and the Cannabis Distribution Act will be enforceable on First Nations land once this is passed in this House? 

I thank the Member for the question. As I said earlier in our discussions, we view these as laws of general application that apply right across the province.  -- Solicitor General Mike Farnworth

The Skeena MLA also outlined, how he views the legislation being viewed among First Nations leaders in many communities in the province.

It'll be a mixed bag of questions, concerns, coming from First Nation leaders, who will ultimately come up against this legislation and will understand at some point that they do not have the inherent right to grow, acquire and sell cannabis on their lands. Not even under that constitutional question that I'm sure is going to be asked at some point when their assets get seized or there's an investigation into their lands. 

Everybody under the provincial government will be bound by legislation. I understand that. DRIPA is legislation. I'm just trying to find out where that…. Does that run parallel to the rights and title case law that the previous Attorney General promised that DRIPA would be implemented under? Is it parallel to the constitution, to section 35, or is it underneath it?

I understand that the courts will look at the constitutional question just as a constitutional question. They'll look at the rights and title case law principles that were laid out to define section 35, but they'll have to cover new ground when they're trying to figure out exactly what DRIPA means in the context of something as serious as growing, acquiring and selling cannabis. 

Under DRIPA: "Indigenous peoples have full enjoyment of their rights to self-determination and self-government, including developing, maintaining, and planning their own institutions, laws governing bodies and political, economic and social structures related to Indigenous communities." 

My question is: does the government have a mandate or set of principles related to the constitution that that will basically inform First Nations of their rights and responsibilities in comparison to the rights and responsibilities of the B.C. government when enforcing a bill such as Bill 30?

Towards that enquiry, the Solicitor General observed how the theme of discussion was moving beyond the scope of the Legislation up for conversation on the day.

I appreciate the question from the member, and I would make this point. I think the questions that he raises are important, but they are far above and beyond the scope of this particular piece of legislation. 

That I think what he's raising refers to earlier, around that parallel process of the broader policy discussions that take place through the DRIPA action plan in terms as it relates to the broader issue of cannabis, for example. -- Solicitor General Mike Farnworth

The full amendment proposal for the Cannabis Act Amendments can be reviewed here.

The discussion from Tuesday's afternoon session can be reviewed through the Legislature Hansard Minutes and by way of the Legislature video review of the day, the conversation starts around the 2:30 PM part of the proceedings.

More notes on the Legislature can be explored through our archive page.

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