R. v. Plain, 2026 ONSC 63

R. v. Plain, 2026 ONSC 63

CITATION: R. v. Plain, 2026 ONSC 63

COURT FILE NO.: 2113/20, 2114/20, 2115/20, 2141/21

DATE: 20260105

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

KEVIN BLAIR PLAIN

Applicant

I. Bell, L. Precup-Pop and A. Francis, for the Respondent, Federal Crown

C. Vitsentzatos and W. Corston, for the Applicants

AND BETWEEN:

HIS MAJESTY THE KING

-and-

THOMAS ADAM JACKSON

AND BETWEEN:

HIS MAJESTY THE KING

-and-

AARON ARTHUR MANESS

AND BETWEEN:

HIS MAJESTY THE KING

-and-

MARK SIEFKER

HEARD: March 31, April 1, 7, 8, 9, 10, 11, 15, 16, 17, 22, 23, 24, 29, and 30, 2025

JUSTICE R. RAIKES

1The Applicants, Kevin Plain, Aaron Maness and Mark Siefker, are members of the Aamjiwnaang First Nation. The Applicant, Thomas Jackson, is a member of the Chippewas of Kettle and Stony Point First Nation.

2Each Applicant operated a commercial retail cannabis business situate on their respective Reserves. None of the Applicants had a licence issued by the Province of Ontario for a retail business to sell cannabis products.

3Police obtained warrants and conducted searches and seizures from the business locations operated by the Applicants. The Applicants were charged under s. 10(2) of the Cannabis Act with unlawfully possessing cannabis for the purpose of selling it.

4A trial proceeded before Thomas J. on the charges against the Applicants, Plain, Jackson, and Maness. Thomas J. found that the Crown had proven the essential elements of the offences charged but deferred the imposition of convictions pending the outcome of the constitutional challenge before me.

5There is a separate information charging Mr. Siefker who is represented by the same counsel. He raises the same constitutional challenge and agrees to be bound by the outcome of this application.

Caution

6It is my intention to be culturally appropriate in the language used in this decision and to the extent it may appear that I fail to do so, I mean no disrespect to the Applicants or their First Nations. Much of the written historical evidence tendered and referred to in this application derives from papers and correspondence written by one side – British officers, colonial officials, and settlers. The language used by them is a product of their history, culture, and beliefs.

7It is critical that at the outset, the parties understand the limited scope of this decision. It will address, inter alia, whether the Applicants’ aboriginal and treaty rights have been infringed by the federal Cannabis Act, and if so, what remedy is appropriate.

8To be clear, this decision will not address whether any particular treaty or land transaction was fair, reasonable and consistent with the honour of the Crown. I am not tasked with determining the merits of land claims. I observe only that there is much in the sad history of the Crown’s dealings with these First Nations and their ancestors to regret.

Roadmap

9In this decision, I will:

1. outline the constitutional challenge made,
2. set out the legislation and legislative scheme impugned,
3. set out the law applicable to aboriginal rights,
4. review the evidence as it relates to the aboriginal rights asserted and make findings as necessary to determine whether an aboriginal right existed, its scope, and whether the legislation infringes upon that right,
5. set out the law applicable to treaty rights,
6. review the evidence as it relates to the treaties and alleged treaty rights asserted, make findings of fact as necessary to determine whether a treaty right exists, its scope, and whether the legislation infringes upon that right,
7. set out the law as it relates to the Applicants’ claim to infringement of their “inherent” and/or “international” rights under the United Nations Declaration on the Rights of Indigenous People Act (hereafter “UNDRIPA”),
8. review the evidence and make findings of fact as necessary to determine whether such a breach has occurred, and
9. address the remedy, if any, that is appropriate in these circumstances.

Constitutional Challenge Asserted

10The Applicants seek an order pursuant to s. 24(1) of the Charter that:

1. the proceedings be stayed or dismissed because the indictments and prosecutions violate their constitutional, inherent, treaty, international, and legal rights,
2. section 355(b) of the Criminal Code be declared to be constitutionally inapplicable and inoperative in the context of these proceedings, and
3. sections 8(1)(b) and 10(2) of the Cannabis Act, S.C. 2018, c. 16 be declared to be constitutionally inapplicable and inoperative in respect of the Applicants in the context of these proceedings.

11At its core, the Applicants challenge the validity and application of ss. 8(1)(b) and 10(2) of the Cannabis Act because those provisions and the prosecution of the Applicants is a breach their treaty, aboriginal, and inherent rights which are protected by ss. 25, 35, 35.1 and 52(1) of the Constitution Act, 1982 and the provisions of the United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14.

12In their most recent iteration of the Notice of Constitutional Question, the Applicants assert, inter alia, that, with respect to treaty rights:

1. Treaty 29 and other “Imperial instruments” deal simply with land for settlement, thereby leaving all other rights such as free trade, medicine, commerce, and self-government unaltered and intact.
2. Various agreements were concluded between First Nations and the British Crown according to the diplomatic language and customs understood and used by the Chippewa and Ojibway Nations. Those agreements were treaties that respected and protected pre-contact practices including trade.
3. The “Covenant Chain” symbolizes the alliance between the Three Fires Confederacy, the Chippewa and Ojibway Nations, and the Crown. The Covenant Chain is a series of treaties and wampum belts meant to record and memorialize military and trade alliances, including neutrality pacts, between the Crown and First Nations. It formalized and recorded commerce and trading systems between the First Nations and the Crown which were to be free from interference by either party.
4. The treaties recognize the right of the Chippewa and Ojibway Nations to trade freely, not only with colonial powers, but among themselves and with other First Nations. This right of free trade included the trade of plants, plant-based medicines, and products.
5. The treaties, including oral terms, reflect the longstanding trade practices of the Chippewa and Ojibway Nations. They crystallized such customary trade practices into treaty rights to acquire, exchange, distribute, and trade goods without interference from the Crown, consistent with their trade practices pre-contact.
6. These treaty rights have not been extinguished or replaced and remain binding on the Crown.
7. The Crown owed a duty to consult the First Nations before enacting legislation that impacts use of Reserve lands, and which is at odds with existing treaty and aboriginal rights. The Crown failed to consult and thereby breached its fiduciary and constitutional duties owed to the First Nations of which these Applicants are members.

13With respect to aboriginal rights, the Applicants assert, inter alia, that:

1. As members of their First Nations, the Applicants have an aboriginal right of free trade in a range of goods acquired, used, and traded since pre-contact.
2. This aboriginal right of free trade includes the right to acquire and use plant-based medicines and products, and to trade in same with other Chippewa and Ojibway people and with non-aboriginal persons without obligation to the Crown.
3. They have an aboriginal right to trade in plant-based medicines on a commercial scale which cannot be constrained by regulation or legislation. They do not require a licence or certificate to operate their retail cannabis stores, nor do they have a duty to collect or remit duties or taxes from such activity.
4. The use and trade of goods including plant-based medicines has always been a defining and integral feature of the Chippewa and Ojibway culture, traditions and practices.
5. Post-contact trading and the conduct of their First Nations evidence the extent and importance of trading rights and practices which have continued without interruption since before contact.

14The Applicants further assert, inter alia, that they have the following “constitutional, inherent, and international rights” that are violated by the impugned provisions and their prosecution:

1. unextinguished treaty and aboriginal rights of free trade and provision of medical services (prescribing and dispensing);
2. treaty rights to acquire, transport, exchange and trade goods including hemp and derivative products such as cannabis and other plant-based medicine, free of regulation or constraint including any requirement of licencing by the Crown;
3. rights as indigenous peoples under the United Nations Declaration on the Rights of Indigenous Peoples Act (hereafter “UNDRIPA”) including but not limited to, i. the right to freely determine and freely pursue their economic development which includes free trade and commerce; ii. the right to traditional medicines and to maintain their health practices including conservation of vital medicinal plants; iii. the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or occupied lands and resources; iv. the right to own, use, develop, and control their traditional lands; v. the right to have States (Canada and Ontario) legally recognize and protect these lands with due respect for their customs, traditions, and land tenure systems of the indigenous peoples; vi. the right to conserve and protect the environment and productive capacity of their lands, territories and resources; vii. the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions including traditional seeds and medicines; and viii. the right to maintain, control, protect and develop their intellectual property over such cultural heritage and traditional knowledge.

15The Applicants contend that the licencing requirement mandated under the Cannabis Act and its regulations violate their aboriginal, treaty, and inherent rights that are protected by the Constitution Act, 1982 and UNDRIPA.

Cannabis Act and Regulations

16The legislative scheme governing the sale of cannabis in Canada has both federal and provincial components.

17The federal Cannabis Act was proclaimed in force on October 17, 2018. Under the federal legislation, provincially licenced adults and businesses may sell legal cannabis to adults. The regulations for licencing are prescribed by the Province - in this case, Ontario.

18Section 8(1)(b) of the Cannabis Act states:

(1) Unless otherwise authorized under this Act, it is prohibited (b) for an individual who is 18 years of age or older to possess any cannabis that they know is illicit; …

19“[I]llicit cannabis” is defined in s. 2(1) to mean, “cannabis that is or was sold, produced, or distributed by a person prohibited from doing so under this Act or any provincial Act or that was imported by a person prohibited from doing so under this Act.”

20Subsections 10(1) and (2) of the Cannabis Act state:

(1) Unless authorized under this Act, it is prohibited to sell cannabis, or any substance represented or held out to be cannabis, to (a) an individual who is 18 years of age or older; (b) an individual who is under 18 years of age; or (c) an organization.

(2) Unless authorized under this Act, it is prohibited to possess cannabis for the purpose of selling it contrary to any of paragraphs (1)(a) to (c).

21To be “authorized” to sell cannabis under the federal Act, the person must be licenced by the Province.

22Section 6(1) and (2) of the Ontario Cannabis Control Act, 2017, S.O. 2017, c. 26 state:

(1) No person shall sell cannabis, other than an authorized cannabis retailer. (2) No person shall distribute cannabis that is sold, or that is intended to be sold, other than by an authorized cannabis retailer.

23“[A]uthorized cannabis retailer” is defined in s. 2(1) as “the Ontario Cannabis Retail Corporation or the holder of a retail store authorization under the Cannabis Licence Act, 2018 when acting in accordance with the authorization.

24Section 8.2 of the Ontario Cannabis Control Act, 2017 prohibits any knowing advertisement or promotion of the sale of cannabis by a person or entity not authorized to produce, sell or distribute cannabis under that Act or the federal Cannabis Act.

25Thus, it is unlawful to sell cannabis or to advertise or promote the sale of cannabis unless the person or entity doing so is an authorized cannabis vendor; viz. a holder of a licence issued under the Cannabis Licence Act, 2018.

26The Cannabis Licence Act, 2018 and its Regulation provide the rules and mechanism by which a person may become an authorized cannabis retailer. Subject to certain eligibility restrictions, any adult in Ontario may apply for a licence; that includes members of First Nations: s. 3(1) and (4). The legislation also expressly contemplates such businesses operating on Reserve unless the First Nation Council expresses its opposition to that business being operated on Reserve: s. 43.

27No evidence was adduced on this application that:

1. any of the Applicants applied for or sought a licence under the Ontario legislation;
2. any of the Applicants was ineligible for any reason to obtain such a licence;
3. any of the Applicants first approached their respective First Nation Chief and Council to obtain their permission or support for these businesses before they opened or that they did so after they opened; and
4. either First Nation Council communicated to the Province their opposition to licencing a commercial retail cannabis store to operate on Reserve.

28I note that the Applicants have not challenged the validity of the Ontario legislation. The Attorney General for Ontario was served with this application and has not responded, nor participated.

29I am mindful that it is the Applicants’ position that they did not need to apply for a licence because, inter alia, their activities were in pursuit of their aboriginal and treaty rights. In these circumstances, they contend that they cannot be prosecuted or convicted because the federal legislation is inoperable.

Charter Claim

30The Applicants rely on s. 25 of the Charter of Rights and Freedoms which states:

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights and freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.

Constitution Act, 1982

31The Applicants also rely on s. 35 of the Constitution Act, 1982. Section 35(1) of the Constitution Act, 1982 states:

35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

32The purpose of s. 35(1) is protection and reconciliation of the interests that arise from the fact that before the arrival of Europeans in North America, aboriginal peoples lived on the land in distinctive societies with their own practices, customs and traditions: Van der Peet, [1996] 2 S.C.R. 507, at para. 44

33These pre-contact customs, traditions and practices were absorbed into the common law as rights unless incompatible with the Crown’s assertion of sovereignty or surrendered voluntarily by way of the treaty process, or explicitly extinguished by the Crown: Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911, at para. 10.

34In Mitchell, at para. 9, the Chief Justice wrote:

9…English law, which ultimately came to govern aboriginal rights, accepted that the aboriginal peoples possessed pre-existing laws and interests, and recognized their continuance in the absence of extinguishment, by cession, conquest, or legislation: see, e.g., the Royal Proclamation of 1763, R.S.C. 1985, App. II, No. 1, and R. v. Sparrow, …1990 104 (SCC), [1990] 1 S.C.R. 1075, at p.1103. At the same time, however, the Crown asserted that sovereignty over the land, and the ownership of its underlying title, vested in the Crown: Sparrow, supra. With this assertion arose an obligation to treat aboriginal peoples fairly and honourably, and to protect them from exploitation, a duty characterized as “fiduciary” in Guerin v. The Queen, …1984 25 (SCC), [1984] 2 S.C.R. 335.

Aboriginal Rights

35Section 35(1) of the Constitution Act, 1982 did not create aboriginal rights; aboriginal rights existed and were recognized under the common law before the Constitution came into effect: Calder v. British Columbia (Attorney General), [1973] S.C.R. 313. The enactment of s. 35(1) elevated existing common law aboriginal rights and those not yet recognized at common law to constitutional status: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 136.

36Post-enactment of s. 35(1), aboriginal rights cannot be extinguished by legislation; they can only be regulated if justified according to the test laid out in R. v. Sparrow, [1990] 1 S.C.R. 1075; Mitchell, at para. 11.

37In assessing whether an aboriginal right is made out, a court must take into account the perspective of the aboriginal people claiming the right. That perspective must be framed in terms cognizable to the Canadian legal and constitutional structure. Aboriginal rights exist within the general legal system of Canada: Van der Peet, at para. 49.

38The Applicants submit that the test for determination of the existence of an aboriginal right should be modified; viz. I should apply the test recently articulated in R. v. Montour, 2023 QCCS 4154, not that of the Supreme Court in Van der Peet.

39In Montour, the Applicants were members of the Mohawks of Kahnawake who were charged under s. 42 of the federal Excise Act, 2001, S.C. 2002, c. 22 for failure to pay duty on tobacco products. Justice Bourque of the Quebec Superior Court held that circumstances warranted a reconsideration and revision of the test for aboriginal rights established by the Supreme Court in Van der Peet. She concluded that the conditions necessary to depart from the principle of vertical stare decisis were met; specifically:

1. the adoption by Canada of UNDRIP and enactment of UNDRIPA;
2. the evolution of the court’s knowledge and understanding of Indigenous peoples’ lives through public inquiries;
3. the rising collective awareness of a pressing need for a renewed relationship in which reconciliation is central;
4. the steps taken by the executive and legislative branches toward reconciliation; and
5. a different and/or expanded understanding of what reconciliation entails.

40Justice Bourque formulated the following test that the Applicant was required to meet to establish an aboriginal right:

1. the Applicant must identify the collective right that he/she/they invoke;
2. the Applicant must prove that such a right is protected by his or her traditional legal system; and
3. the Applicant must show that the litigious practice or activity in question is an exercise of that right.

41In R. v. Kane, 2024 QSSC 1833, Justice Royer of the Quebec Superior Court declined to follow the approach in Montour. He concluded that the court was bound to follow the decisions of the Supreme Court – that vertical stare decisis applied. He contrasted the limited evidentiary record before him with the months of evidence in Montour.

42The decision in Montour is not binding upon me. Although there is some overlap in the evidence as it concerns treaty rights, it is obvious from a review of Montour that significant oral history evidence was adduced as to tobacco, its trade, and its cultural significance to the Haudenosaunee. The evidence included the traditional legal system of the Haudenosaunee.

43The evidentiary record before me is far less robust. It does not warrant a departure from the principle of vertical stare decisis. I am bound by the decisions of the Supreme Court including the principles in Van der Peet as to the test for an aboriginal right. That test has been confirmed and applied by the Supreme Court repeatedly since 1996

44To be an aboriginal right protected by s. 35(1), an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right: Van der Peet, at para. 46.

45It is insufficient for the aboriginal claimant to merely show that a practice, custom or tradition was an aspect of, or took place in, the aboriginal society of which he is a part. The claimant must demonstrate that the practice, custom or tradition was “a central and significant part of the society’s distinctive culture”: Van der Peet, at para. 55. That means that the practice, custom or tradition was one of the things that truly made the culture what it was: Van der Peet, at para. 55.

46Put another way, the question to be asked is whether or not the practice, custom or tradition is a “defining feature of the culture in question”: Van der Peet, at para. 59.

47At para. 56, Lamer C.J. explained:

56. This aspect of the integral to a distinctive culture test arises from the fact that aboriginal rights have their basis in the prior occupation of Canada by distinctive aboriginal societies. To recognize and affirm the prior occupation of Canada by distinctive aboriginal societies it is to what makes those societies distinctive that the court must look in identifying aboriginal rights. The court cannot look at those aspects of the aboriginal society that are true of every human society (e.g. eating to survive), nor can it look at those aspects of the aboriginal society that are only incidental or occasional to that society; the court must look instead to the defining and central attributes of the aboriginal society in question. It is only by focusing on the aspects of the aboriginal society that make the society distinctive that the definition of aboriginal rights will accomplish the purpose underlying s. 35(1). [Underlining in original.]

48The relevant time period for identification and definition of the aboriginal right is pre-contact with European societies: Van der Peet, at paras. 60-61. This does not require that the claimant produce conclusive evidence from pre-contact times about the practices, customs and traditions of the community. The evidence relied upon by the applicant may relate to aboriginal practices, customs and traditions post-contact and, if so, it simply needs to be directed at demonstrating which aspects of the aboriginal community and society have their origins pre-contact: Van der Peet, at para. 62.

49A claimant has established that the practice, custom or tradition is an aboriginal right for purposes of section 35(l) where he demonstrates, on a balance of probabilities, that a particular practice, custom or tradition is integral to the aboriginal community’s distinctive culture today, and that this practice, custom or tradition has continuity with the practices, customs and traditions of pre-contact times: Van der Peet, at para. 63.

50Continuity does not require the claimant to provide evidence of an unbroken chain of continuity between current practices, customs and traditions and those that existed before contact. There may be gaps or interruptions in engagement in the practice, custom or tradition that existed before contact.

51The existence of an aboriginal right depends entirely on the practices, customs and traditions of the particular aboriginal community claiming the right: Van der Peet, at para. 69. The fact that one group of aboriginal people have an aboriginal right to do a particular thing is insufficient, without more, to prove that another aboriginal community has the same aboriginal right.

52The practice, custom or tradition must be one that is independently significant to the aboriginal community claiming the right. It cannot simply be incidental to another practice, custom or tradition: Van der Peet, at para. 70.

53The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that the practice, custom or tradition be distinct: Van der Peet, at para. 71.

54It may well be that the practice, custom or tradition that was an integral part of the aboriginal community’s culture before contact adapted in response to European arrival. The fact that Europeans in North America engaged in the same practices, customs or traditions as those under which an aboriginal right is claimed is only relevant to the aboriginal claim if the practice, custom or tradition in question can only be said to exist because of that European influence: Van der Peet, at para. 73.

55Aboriginal rights arise from the prior occupation of the land and from the prior social organization and distinctive cultures of peoples on that land. In considering whether a claim to an aboriginal right has been made out, the court must look at both the relationship of the aboriginal claimant to the land and at the practices, customs and traditions arising from the claimant’s distinctive culture and society: Van der Peet, at para. 74.

56An aboriginal right, once established, generally encompasses other rights necessary to its meaningful exercise: Mitchell, at para. 22; R. v. Cote, [1996] 3 S.C.R. 139.

57Once an existing right is established, any restriction on that right through the imposition of regulation, legislation, duties or taxes should be considered at the infringement stage: Mitchell, at para. 23 and the cases cited therein.

Evidence to Prove Aboriginal Rights

58Where an aboriginal right is claimed, the court “should approach the rules of evidence and interpret the evidence that exists with a consciousness of the special nature of the aboriginal claims and the evidentiary difficulties in proving a right that originates in times where there were no written records of the practices, customs and traditions engaged in”: Van der Peet, at para. 68; Mitchell, at para. 27.

59This admonition applies both to the admissibility of evidence and the weighing of aboriginal oral history: Mitchell, at para. 28.

60In Mitchell, the Supreme Court set out the following principles governing the admissibility and weighing of evidence in aboriginal right claims:

• the fundamental principle that courts render decisions on the basis of evidence applies equally in aboriginal claims (para. 29)
• the rules of evidence must be applied flexibly, in a manner commensurate with the inherent difficulties posed by aboriginal rights claims and the promise of reconciliation inherent in s. 35(1) (para. 29)
• the flexible application of the rules of evidence permits, for example, admissibility of evidence of post-contact activities to prove continuity with pre-contact practices, customs, and consideration of various forms of oral history (para. 29)
• the rules of evidence must be adapted to accommodate oral histories but there is no blanket admissibility of such evidence nor is there any rule that dictates the weight that should be accorded to that evidence by the trier of fact. Such determinations are made on a case-by-case basis (para. 31, citing Delgamuukw)
• oral histories are admissible as evidence where they are both useful and reasonably reliable subject to the exclusionary discretion of the trial judge (para. 31)
• aboriginal oral histories may meet the test of usefulness on two grounds: 1) they offer evidence of ancestral practices and their significance that is not otherwise available, and 2) they may provide the aboriginal perspective on the right claimed without which it may be impossible to gain a true picture of the aboriginal practice relied on or its significance to the society in question (para. 32)
• in determining whether a witness presents a reasonably reliable source of the particular people’s history, the trial judge need not find a special guarantee of reliability. Nevertheless, inquiries as to the witness’ ability to know and testify as to the aboriginal traditions and history are appropriate both for admissibility and the weight to be assigned to that evidence (para. 33)
• in determining usefulness and reliability of oral histories, judges must resist assumptions based on Eurocentric traditions of gathering and passing on historical facts and traditions (para. 34)
• oral histories reflect the distinctive perspectives and cultures of the communities from which they originate. They should not be discounted simply because they do not conform to the expectations of the non-aboriginal perspectives (para. 34)
• there are no absolute principles that govern the assessment of evidence by the trial judge including evidence of oral histories (para. 36)
• the requirement that courts interpret and weigh the evidence with a consciousness of the special nature of aboriginal claims is critical to the meaningful protection of s. 35 rights (para. 37)
• it is imperative that the laws of evidence operate to ensure that the aboriginal perspective is “given due weight by the courts” (para. 37, citing Delgamuukw, at para. 84)
• consciousness of the special nature of aboriginal claims does not negate the operation of general evidentiary principles. Evidence adduced in support of aboriginal claims must not be undervalued but neither should it be interpreted or weighed in a manner that fundamentally contravenes the principles of evidence law as they relate to the weighing of evidence: (para. 38)
• evidence advanced in support of aboriginal claims, like the evidence offered in any case, can run the gamut of cogency. Claims must still be established on the basis of persuasive evidence demonstrating their validity on the balance of probabilities. Placing “due weight” on the aboriginal perspective or ensuring its supporting evidence “an equal footing” with other forms of evidence means equal and due treatment. It does not mean that evidence presented by aboriginal claimants should be “artificially strained to carry more weight than it can reasonably support” (para. 39).

Aamjiwnaang First Nation and Kettle and Stony Point First Nation

61The Aamjiwnaang First Nation Reserve is located within the boundaries of the City of Sarnia along the St. Clair River. The Chippewas of Kettle and Stony Point First Nation Reserves (2) are also in Lambton County along the shore of Lake Huron, approximately 25 km northeast of Sarnia.

62Those Reserves were established in 1827 by Treaty 29 (also known as the Huron Tract Treaty) whereby the First Nations ceded a vast tract of land known as the Huron Tract to the Crown for settlement. The original boundaries of the Reserves were marked out by survey.

63The Aamjiwnaang and Kettle and Stony Point peoples are Anishinaabe which is to say that their ancestors were part of the culturally related indigenous peoples who occupied the lands on both sides of what is now the Canada/U.S border along Lakes Erie, St. Clair, Huron and Georgian Bay. They were the indigenous inhabitants of what is now Lambton County and much of Southwestern Ontario.

64There were two large language families in Eastern North America: Algonquian and Iroquoian. The languages are completely different. The Anishinaabe people were part of the Algonquian language family. The Haudenosaunee belonged to the Iroquoian language family.

65In the 18th century, both Aamjiwnaang and Kettle and Stony Point First Nations belonged to the Council of the Three Fires or Three Fires Confederacy. Early written colonial records refer to the “Western Nations” or “Western Confederacy” of which the Three Fires Confederacy was considered part. The Three Fires Confederacy consisted of Chippewa, Odawa, and Pottawatomi tribes. The latter were the keepers of the sacred fire.

66The exact population of the Aamjiwnaang and Kettle and Stony Point First Nations pre-contact is unknown. The ancestors of these First Nations occupied local villages at the rapids at the St. Clair River and in the vicinity of the current Reserves along the shore of Lake Huron.

67The villages were comprised of interrelated families. Decisions affecting the village were made by the headmen at councils held to discuss issues. There were two distinct types of chief – one for war and the other for civil matters. They were chosen by the community based on their aptitudes for each role.

68Each village was connected to the broader Anishinaabe Nation in the Great Lakes basin. They shared the territory. They came together typically in the summer where they discussed issues affecting them, had celebrations and feasts, and traded amongst themselves.

69Ceremonies were an integral part of gatherings and councils. Anishinaabe spirituality infused their society and activities. Meetings or gatherings were solemn occasions witnessed by the Great Spirit. Gatherings typically had an opening ceremony with a condolence ceremony to mark and pay respect to those who had passed on since the last gathering. Issues were discussed, decisions made, and a closing ceremony marked the end of the council.

70These ceremonies and customs were accepted and adapted by colonial representatives, both British and French, in their dealings with indigenous people in the 17th and 18th centuries. They became part of the diplomatic conventions employed when councils or congresses were convened by either the British Crown or the indigenous peoples. Typically, presents were distributed by the British after the final ceremony and before the tribes dispersed to return to their traditional territories.

71I will address those councils and congresses below when considering the treaties between the Crown and First Nations.

Pre-Contact Indigenous Economy

72Pre-contact, the primary economic activity of the Applicants’ ancestors focused on subsistence. They fished, hunted, farmed, and traded with other indigenous groups.

73The indigenous peoples of Southwestern Ontario, including the Applicants’ ancestors, followed a seasonal cycle. In the Spring, they took advantage of the fish run and had maple sugar harvest camps. In the Summer, they tended to be at village sites where they grew corn, beans, and squash. They also attended gatherings and engaged in intertribal trading. The Fall was mainly devoted to hunting and harvesting crops to store up food for the Winter.

74They traveled within their traditional territory to where the crop or product was plentiful. Plants, including those with medicinal uses, flourished in the late summer.

75Post-contact evidence confirms intertribal trading between indigenous peoples. This trading typically took place at summer gatherings at what is now Sault Ste. Marie and at Aamjiwnaang. There is little physical evidence of that activity but there is mention in correspondence by Europeans who observed these larger gatherings of trading.

76Exhibit 1 is a map created in the 1930’s to depict trails regularly used by indigenous people in this region going back beyond European contact including on what is now the U.S. side of the border. Some of these trails were used and expanded by settlers.

77The existence of a trail system is not disputed, nor is the fact that indigenous groups including the Applicant’s ancestors used these trails to travel to points within their traditional territory for harvesting, fishing etc. Exhibit 1 shows a trail running along the north side of Lake St. Clair and the St. Clair River to a point opposite the Aamjiwnaang village.

Post-Contact Trading

78The Anishinaabe traded with and were allied for a time with the French who erected forts at Detroit and Michilimackinac. Both forts were eventually surrendered and turned over to the British after the defeat of the French in Lower Canada.

79The Anishinaabe were participants in the fur trade. They traded at forts, with independent and government aligned traders, and with settlers.

80The fur trade became a staple or key driver of the indigenous economy as contact with Europeans expanded. Animals were hunted, trapped and traded for prized manufactured goods from Europe. Initially, the goods were aligned with tools that aided in hunting and trapping like rifles, ammunition, knives, and kettles.

81In the early days, the indigenous trappers set the price for furs. When the French and British were competing, prices were still favourable for indigenous trappers. When the French ceded their interests and authority to the British, the trappers had less bargaining power. More of the trade was concentrated at forts which evolved into outposts with general stores.

82As lands were “settled” and occupied by immigrants, the indigenous people traded directly with them for European goods and/or food like eggs, flour etc. Local animal populations declined, and indigenous hunters and trappers had to go further away to trap. That affected their traditional migratory hunting/gathering/harvesting food cycle.

83When the fur trade moved further north and west, the indigenous peoples of this area, including those at Aamjiwnaang and Kettle and Stony Point were encouraged by British and colonial officials to farm. This was especially the case in the aftermath of the Huron Tract land cession.

84In the 1830’s, the railroad came to Sarnia. By that point, some members of the First Nations farmed, some worked as labourers, some worked on farms owned by settlers, and others worked in the United States. Traditional crafts like basket making and blankets continued to be made by members of the First Nations.

85As will be seen below, the attitude and policy of the Crown toward the indigenous population shifted over time. Initially, there was a keen recognition of the military and trade benefits through alliances and treaties. As more and more Europeans emigrated to North America, the need for land for settlers expanded. The Crown’s focus shifted to acquiring that land through land surrenders. Thereafter, efforts moved to “civilizing” the indigenous populations through conversion to an agrarian economy and conversion to Christianity of the indigenous population. Indian Residential Schools were but one facet of that policy.

Historical Evidence of Pre-Contact Customs, Practices and Traditions

86The Applicants called the following witnesses:

1. Dr. Karen Travers, an expert historian;
2. David Plain, an elder of the Aamjiwnaang First Nation;
3. Former Chief, Phillip Maness, also an elder of the Aamjiwnaang First Nation;
4. Marshall George, an elder and former councillor of the Chippewas of Kettle and Stony Point First Nation;
5. Bryan Myers, a member of the Iroquois Confederacy; and
6. Jake Agoneh, a traditional healer and medicine man who is a member of an Anishinaabe First Nation on Manitoulin Island.

87Dr. Travers is an historian. She authored a report and reply report both of which were served by the Applicants’ counsel as expert reports on which the Applicants would rely at the hearing of this application. Dr. Travers’ reports addressed the following issues:

1. trade and the economies of the Anishinaabeg of Aamjiwnaang and Kettle Point including the role of plants and medicines;
2. cannabis history and use in North America;
3. economic relationships with non-Indigenous people and the intentions and circumstances surrounding the negotiation and implementation of the Huron Tract Treaty;
4. the effects of historic legislation and government policies on Anishinaabeg economies; and
5. federal and provincial cannabis legislation in the context of Indigenous sovereignty and government commitments to reconciliation and implementing of the United Nations Declaration on the Rights of Indigenous People.

88A voir dire was conducted regarding the scope of Dr. Travers’ expertise to provide expert opinion evidence. In cross-examination during the voir dire, Dr. Travers indicated that although she provided a report dealing with all five issues, she did so only to assist counsel, not expecting that the draft reports would be served as her final expert reports.

89Of the five topics on which she was asked to write a report, she testified that only issues three (3) and four (4) were within her area of expertise based on her past research and study. Further, she testified that she was comfortable addressing indigenous trade and economies, but not the specific role of plants and medicines referenced in issue one (1). She had not directly researched or written on aboriginal plants and/or cannabis. She would not hold herself out as an expert on the history of cannabis or on what plants were part of traditional indigenous medicines pre-sovereignty.

90In my ruling, I indicated that Dr. Travers was qualified as an expert historian to provide opinion evidence as to:

a. trade and economies of the Aamjiwnaang and Kettle and Stony Point peoples post-contact to Confederation; b. the economic relationship(s) of those aboriginal peoples with non-indigenous people during the same time period; c. the intentions, expectations, and circumstances surrounding the negotiation and implementation of the Covenant Chain of Silver and subsequent treaties between 1763 and Confederation; and d. the effects of historical legislation and policies on Anishinaabeg economies during the time between the Covenant Chain of Silver and Confederation.

91Although the ruling refers to post-contact economies, Dr. Travers did testify on the pre-contact economies of the Anishinaabe peoples including the Aamjiwnaang and Kettle and Stony Point peoples. No objection was taken to that evidence which, it seems to me, is logically connected to and relevant to the issues raised by the aboriginal rights asserted.

92Dr. Travers was not qualified, by her own admission, to provide opinion evidence as to the history of cannabis in Canada or traditional plants and medicines including the trade of same, if any. The Applicants called no other expert witness on this subject.

93The Crown called Dr. Alexander von Gernet, an anthropologist and ethnohistorian. Dr. von Gernet testified that anthropology is the study of human culture, past and present. Ethnohistory is a methodology used by historians to familiarize themselves with all species of evidence to reconstruct indigenous culture in relation to contact with Europeans. It involves the examination of the change and continuity of these cultures.

94Dr. von Gernet has conducted research of a number of First Nations including the Anishinaabe, Haudenosaunee and their constituent members. He has taught forensic anthropology of aboriginal peoples. He has taught change and continuity in Canadian aboriginal society. He has published numerous papers on indigenous history and anthropology including regarding the Anishinaabe. He has published and written on the use of oral history.

95Further, Dr. von Gernet has researched cannabis and its connection to indigenous peoples, if any. He has published peer-reviewed articles and spoken on tobacco, hallucinogens, and other psychoactive plants used by indigenous peoples. His initial work focused on tobacco but expanded to include other psychoactive plants including cannabis. He has been qualified as an expert witness in other cases.

96Dr. von Gernet authored a lengthy expert report which was provided to the Applicants. After cross-examination, the Applicants took no issue with his qualifications to opine on the issues addressed in his expert report. He was engaged by the Crown to address the following questions:

1. Who are the Anishinaabe and where did they live at the time of their first contact with Europeans and thereafter?
2. What was the date of first contact between Europeans and the Anishinaabeg (including the ancestors of the Anishinaabe of Aamjiwnaang and Kettle Point)?
3. Was cannabis sativa or any other species belonging to the cannabis genus already present anywhere in North America prior to first contact between indigenous peoples and Europeans?
4. Was cannabis sativa known to, used by, and/or traded by the Anishinaabe at the time of or prior to first contact with Europeans?
5. Did cannabis sativa itself, or any of the uses humans have made of this plant, form an integral part of the distinctive culture of the Anishinaabe at the time of or prior to first contact with Europeans?
6. During the centuries after first contact did the Anishinaabe, and more specifically, the Anishinaabe of Aamjiwnaang and Kettle Point, trade cannabis sativa (either the plant or products made therefrom) amongst themselves or to anyone else?
7. Did the Anishinaabe peoples make use of any fibre-producing plants (which Europeans might have called “hemp”) to make cordage and textiles, and if so, what were these plants?
8. Was a protection of trade in cannabis sativa (either the plant or products made therefrom) within the contemplation of the parties to the treaty?

He was also tasked with responding to or critiquing the expert reports of Dr. Travers.

97Dr. von Gernet was qualified as an expert witness to provide opinion evidence on the above subject matters. He testified that:

• Contact by Europeans with the Anishinaaabe first occurred in either the 1500’s, 1620’s or 1634 depending on how contact is defined. There are European reports of direct contact with Anishinaabe persons in the 1620’s and 1634. There is indirect evidence of earlier contact from excavation of a hunting camp estimated to be from the 1530’s. It is unclear whether initial contact occurred in or outside of their traditional territory.
• At the time of first contact, the Anishinaabe were living along the north shore of Lake Huron and the St. Mary’s River. Some moved south to the strait between Lake Huron and Lake Erie. They settled in that area sometime after 1701.
• French colonial documents refer to the ancestors of the Applicants’ First Nations in the Detroit-Lake St. Clair and St. Clair River region in the first decade of the 18th century.
• Pre-contact, the Applicants’ ancestors were a foraging society. They relied on hunting, fishing, and gathering with limited cultivation and harvesting cultigens like corn.
• Information from early sources like Champlain and the Jesuits refer to trade between the Anishinaabe and Iroquoians who were neighbours. They traded corn for furs and fish. It was trading on a small scale. There was a social aspect to the trade. It was not a commercial fur trade.
• Once the Anishinaabe became involved in the fur trade, they turned their attention from subsistence foraging to market hunters seeking furs to trade to the French. They thereby became part of the global market for furs.

98With respect to cannabis, Dr. von Gernet testified that:

• As an anthropologist, he relies on plant taxonomy to classify plants. Each plant can be categorized by genus and species. A genus may have one or more species.
• For cannabis, there is a single genus: Cannabis. There are two species: 1) cannabis sativa and 2) cannabis indica. Some botanists contend that there is a single species, sativa, with variations. The seeds of the two species are very similar in appearance.
• Cannabis originated in Asia. Its primary use was for cordage made from fiber in the stalks of the plant. It was not used as a drug; there was insufficient THC concentration to produce psychotropic effects.
• Cannabis sativa (also called “fiber cannabis”) was important as a raw product for production of rope and sails in Asia and Europe. Only the stalk of the plant was used in making rope. The rest was not used and as mentioned, was not psychoactive.
• A typical British ship required 5 acres of cannabis sativa to produce sails and rope for that ship.
• Cannabis indica (also called “drug cannabis”) was used primarily in India and lower parts of Malaysia as a psychoactive drug.
• Thus, cannabis sativa and cannabis indica derived from different regions in the Old World. They also have different dispersal histories from the Old World to the New World.
• Hemp may refer to fiber cannabis or may involve other plants used to make rope. Thus, hemp and cannabis are not interchangeable terms. Hemp is a usage category, not a species.
• Cannabis does not appear in the archaeological record for Canada. By contrast, tobacco seeds do show up in the archaeological records at pre-contact sites.
• Cannabis seeds are far larger than tobacco seeds. If there were cannabis seeds on archaeological sites in Ontario, they would have been found. Of the tens of thousands of archaeological sites in Ontario and hundreds of thousands in North America, no cannabis seeds were found.
• The history of cannabis in Canada varies depending on the type of cannabis in question. Cannabis sativa – the fiber plant – was present in Canada much earlier than cannabis indica.
• There is indisputable evidence that cannabis sativa was imported to Canada as early as 1606 when the French came to the Port Royal/Annapolis area in Nova Scotia. They brought Old World plants which included fiber cannabis. They planted it to grow cannabis to make rope.
• The drug cannabis – cannabis indica – followed a different path. Europeans were unaware of that species until the Portuguese and British began colonizing India and Asia. They noted it and described its effects on humans. It did not become part of the European culture until the 19th century.
• An Irish physician in India is credited with having brought cannabis indica to England. It is referred to in a published 1839 medical paper. Cannabis indica became integrated into the European medical system as part of the pharmacological industry. Around the same time, it was imported to North America with other medicines and tinctures. Its diffusion into North America likely occurred in the second half of the 19th century.
• By the late 19th century, cannabis indica was used in the United States recreationally. In the early 20th century, its recreational use came to Canada.
• The efforts to grow and experiment with cannabis sativa in Canada did not include any known Anishinaabe participation. The French promoted fiber cannabis production in the 1660s in the St. Lawrence Valley. That failed.
• Fiber cannabis only arrived in Southwestern Ontario early in the 19th century. The British tried to grow cannabis sativa in Upper and Lower Canada with different degrees of success. Incentives were given to farmers in Upper Canada to do so.
• By 1804, there was a hemp farm in the St. Clair region. John Askin was a prominent settler who grew hemp on his farm in Sandwich, Ontario.
• There is no evidence that the Anishinaabe attempted to cultivate fiber or drug cannabis at any time.
• In preparing his report, he looked at various types of written records including accounts of explorers, missionaries, journals of those who interacted with indigenous peoples. He found no reference to cannabis in 18th and 19th century records dealing with treaties and treaty negotiations.
• He reviewed extensive ethnobotany literature including paleoethnobotany literature by anthropologists and botanists in the field in the late 19th and early 20th century. There is a great deal of literature including investigations of traditional plants from that era.
• That literature provides a listing of plants with Anishinaabe names and corresponding Latin binomials. Members of the Anishinaabe Nations were asked to identify traditional plants. They went into the field and took samples of the identified plants. These inventories of plants indigenous to the Great Lakes basin and used by the Anishinaabe are voluminous and cover many Anishinaabe communities in the Great Lakes region. There is no reference to cannabis in that literature.
• By way of example, in 1891, Hoffman prepared a lengthy list of plants that the Anishinaabe told him were part of their medicines. Cannabis was not among the listed plants.
• Dr. von Gernet was asked in cross-examination about “Indian hemp” which is not part of the cannabis genus. He indicated that so far as he was aware, it had no psychoactive properties and was never used as an intoxicant or for psychoactive reasons.
• There are plants that grew in the forest in the wild that could be used to make cordage. None of those plants are part of the cannabis genus. There is no reference in the early histories that indicates use of cannabis as an intoxicant.
• He searched for and could not find any oral history of use or trade of cannabis by the Anishinaabe. There is no mention directly or indirectly of cannabis.
• There are recorded oral histories where members of the Anishinaabe wrote about their history and culture. These accounts go back to the 1850s. There is nothing in them referring to cannabis or cannabis use. There is reference to other plants like tobacco.
• Likewise, there is no evidence that the Anishinaabe engaged in the trade of cannabis before first contact. Cannabis is not indigenous to Canada. It was introduced to North America by Europeans. It could not have been and was not central to the Anishinaabe culture before contact nor is there any evidence that they traded in cannabis after contact in the 17th through 19th centuries.
• Cannabis became illegal in Canada in the 1920’s through passage of the Opium Narcotic Drug Amendment Act in 1923 which prohibited cannabis indica and hashish. Cannabis sativa was not prohibited.

99Dr. von Gernet was clear and consistent: cannabis is not native to Canada. Cannabis sativa, which has no medical or pharmacological properties was imported to Canada. Cannabis indica which does have psychoactive properties did not come to Canada until the 19th century. Cannabis was never used or traded by the Anishinaabe before or after contact.

100I observe that I have no expert evidence that contradicts or undermines Dr. von Gernet’s evidence as to the nature, uses, and history of cannabis. His evidence on this subject remained clear and consistent under cross-examination. I accept his evidence with respect to cannabis as reliable.

Oral History Evidence

101David Plain is a member of the Aamjiwnaang First Nation and an elder. He was 81 years old when he testified. He has authored eight (8) books, including “The Ways of Our Grandfather” in 2007. In that book he listed approximately 40 plants used as traditional medicines. Cannabis was not one of the listed plants.

102Mr. Plain can trace his genealogy to his great grandfather who was a signatory to the Treaty of Detroit and Treaty No. 29 (also known as the Huron Tract Treaty). His great grandfather was a hereditary war chief. His father was an elected chief of the First Nation.

103Mr. Plain testified that in addition to hearing and learning stories from his father, grandmother and step-grandfather, he researched documents from the Wisconsin Historical Society that had letters, documents and reports written by, inter alia, French commanders and traders.

104He testified that many of the traditions and customs of the First Nation were lost when Christianity came to the Reserve. In the 1960’s, many members of the First Nation became disenchanted with Christianity and sought out the “old teachings”. They went to communities in Northern Ontario, Minnesota and southern Manitoba seeking that knowledge.

105Mr. Plain was approached by Applicants’ counsel to assist in this matter. He had a nephew who was then operating a cannabis dispensary on Reserve. They provided him with Dr. Travers’ expert report which he read. He felt comfortable with those portions of her report dealing with treaties and interactions between colonial powers and indigenous peoples based on his own previous research and the stories told to him by his family. He was less certain as to the accuracy of those parts of her report addressing cannabis.

106With respect to traditional medicines, Mr. Plain testified:

• There was oral history about traditional medicines that were used in his family when he was growing up.
• That knowledge was passed down by his grandparents and it was something they did or lived through use of those medicines.
• He did not learn about these medicines in a classroom. They were part of life. Everyone used them.
• He became familiar with these traditional medicines and what they were used for. He helped gather the plants. It was something they did as a family.
• He recalled hanging the plants in the basement to dry.
• Members of the First Nation shared medicines as needed. They did not do so for profit; rather, they had a duty to share.
• Traditionally, one gained respect in the community by sharing with others.
• Medicines have a spiritual property. To unlock that property, they had to pray and chant as the medicine was administered. Each plant had its own chant.
• The gathering, sharing, and use of these traditional medicines was the practice before the Reserve was created. That was part of their traditional life.
• The healing knowledge of plants was known by other First Nations. They did not hoard that knowledge.
• When asked about traditional medicines involved in trade - what he referred to as “dawaad” - he referred only to sweet grass which was plentiful at Walpole Island and cedar, which is more common in the north. He did not mention cannabis as a traditional medicine or plant, nor as a medicine that was shared or traded.
• The “other medicines” were abundant all over so there was no need to share or trade them.
• He has never been told one way or the other whether cannabis is indigenous to Canada. He could not say if cannabis is indigenous to this part of Canada.

107I note the following:

1. Mr. Plain did not identify cannabis as a traditional medicine or plant gathered, shared, traded or used.
2. He did not indicate that traditional medicines or plants were traded; rather, they were shared. If someone needed medicine, it was given.
3. The knowledge of traditional plants and medicines was likewise shared.
4. To the extent they traded pre-Reserve (before 1829), they traded what they had an abundance of, like sweet grass from Walpole Island or cedar from Northern Ontario. He gave no evidence that cannabis was a plant in abundance in this region or elsewhere in the Anishinaabe territory, nor that they traded with others to obtain cannabis.
5. He gave no oral history evidence that cannabis was traded or used pre-contact.

108Jake Agoneh is an Anishinaabe traditional healer. He is not a member of either Aamjiwnaang or Kettle and Stony Point First Nations. He did not testify to having lived in or even having visited either First Nation.

109Mr. Agoneh first became involved in traditional healing roughly 40 years ago. His parents both attended Spanish Residential School. He was raised in the Catholic faith but could not understand why they had to go to church and learn about a man who died overseas. He indicated that growing up, he was deprived of his language and culture. He rebelled and began to explore his indigenous history and traditions.

110He testified that:

• He could not simply go to an elder at one of the First Nations on Manitoulin Island to learn about their culture and traditions. Instead, he went to Southern Manitoba to learn from an elder there. He then met elders from Red Lake, Minnesota one of whom was a healer. He became intrigued with learning about traditional medicines.
• The Spirit chose him to be a healer. He fasted in the forest for four days without food or water and had a vision that told him to go down this path.
• He worked in Toronto for 15 years, at the Chippewa Tribal Council in Sault Ste. Marie on the U.S. side for 8 years, in Timmins for 10 years, and then came back home where the community provides him a space to practice traditional healing.
• Everything is medicine. Thoughts are medicine. Alcohol is medicine but if one takes too much, it turns into abuse.
• Everything has a spirit including marijuana. It becomes a bad spirit if abused.
• He was first introduced to marijuana roughly 30 years earlier when visiting an elderly terminally ill woman in a hospital in Toronto. The nurse gave her a marijuana cookie to get her appetite back. He tried it and thought it was ‘nice’.
• The only negative aspect to using marijuana as a traditional medicine is if one takes too much.
• He has six bins containing more than 100 traditional medicines that can be mixed or used alone to treat various ailments. He uses cannabis as a ‘traditional medicine for depression’. He indicated that there was a danger that it could be exploited so “we did not speak of it much as a medicine we used and what for”.
• In cross-examination, he testified that he could not really say if cannabis was non-indigenous to Canada; he always thought it was part of Canada. He swore an affidavit in November 2022 in which he indicated that marijuana was known to Canada through trade. When confronted with that affidavit, he indicated that he thought it was found in Canada. He explained that a lot of traditional medicines came to Canada as seeds from Europe that were planted here.

111I note the following from Mr. Agoneh’s evidence:

1. Mr. Agoneh gave no evidence linking use of cannabis as a ‘traditional medicine’ to pre-contact healing practices, customs, or traditions.
2. Mr. Agoneh’s knowledge of traditional healing derives, in part, from training and education gained outside of Ontario. There is nothing connecting what he learned to traditional Anishinaabe customs, practices or traditions.
3. His evidence that cannabis/marijuana is a medicine native to Canada is at odds with his earlier affidavit. It appears that some of what he termed ‘traditional medicine’ used in his practice are derived from plants and seeds imported to Canada.

Aboriginal Right Claim Analysis

112The first step in the analysis is identification of the nature of the right claimed: Van der Peet, at para. 51.

113In doing so, the court must consider, inter alia, the nature of the action the applicant is claiming was done pursuant to an aboriginal right, the nature of the governmental statute, regulation, or action being impugned, and the practice, custom or tradition being relied upon to establish the right: Van der Peet, at para. 53.

114The characterization of the claim should bear in mind that the activities in question may be the exercise in modern form of a practice, custom or tradition that existed prior to contact: Van der Peet, at para. 54.

115The right claimed must be characterized in context and not distorted to fit the desired result. It must be neither artificially broad nor narrow. An overly narrow characterization risks dismissal of valid claims and an overly broad characterization risks distorting the right by neglecting the specific culture and history of the claimant’s community: Mitchell, at para. 15, citing R. v. Pamajewon, [1996] 2 S.C.R. 821.

116The Applicants characterize the aboriginal right variously as: 1) the trade of medicinal plants, 2) trade of cannabis, and 3) harvest and trading generally.

117In this case, the nature of the Applicants’ activities is the commercial retail sale of cannabis and cannabis products to the public, including but not limited to members of their First Nations. There is no evidence on this application that they were selling other traditional medicinal plants or plant products; that cannabis was simply one of many indigenous plant-based medicines sold. Likewise, there is no evidence that the Applicants were growing, harvesting, and reselling that which was indigenous to their lands.

118The Applicants challenge only the federal Cannabis Act. They do not seek to impugn the related derivative provincial legislation which prescribes licencing, packaging, restrictions on age of customers, strength or concentration of the product, etc. The provincial legislation encompasses a wide range of provisions aimed at public safety.

119Until the federal Cannabis Act came into effect, it was illegal to sell cannabis. It remains illegal to do so absent compliance with the licencing requirement under provincial legislation. Thus, the nature of the legislation challenged is criminal law.

120The Applicants contend that since before European contact, their First Nations engaged in trade with one another. That trade included plants harvested by them including medicinal plants. They continued to harvest and trade crops and plants grown on the traditional lands and reserves post-contact. They traded their goods with other indigenous groups, with the French, then the British, with traders, with settlers, and with others.

121I infer from the post-contact practices observed by settlers, British officials and other Europeans that, pre-contact, the Applicants’ ancestors, like the other groups forming part of the Anishinaabe, gathered for celebrations, councils, and special events, and during those gatherings, they traded with one another. Those with a surplus of a particular product or resource traded for items that were surplus for other groups. They traded for items that were scarce or not abundant in their traditional migration zone including crops and plants.

122While trading with other indigenous groups was a practice that was an essential component of their economy and integral to their society, I cannot conclude on the very scant evidence adduced here that trading of medicinal plants was a material or even modest component of that trade. The evidence does not establish what medicinal plants or traditional medicines were cultivated, harvested, produced or traded by the Applicants’ ancestors. The most that can be said on this record is that they traded with other indigenous groups, usually at gatherings.

123The Applicants’ ancestors grew crops like corn, squash and beans which they traded. No evidence was presented to show that, for example, these First Nations were known for certain traditional medicines derived from plants native to their traditional territory. No evidence was adduced as to what traditional indigenous medicines were used and from what plants they were produced. Simply put, the evidence of trading in medicinal plants is vague, non-specific, and seems to me to be simply added as an item of trade without any underlying support.

124Thus, I find that the Applicant’s ancestors engaged in trade with other indigenous groups pre-contact. However, I am not satisfied on a balance of probabilities that that trade included the trade of medicinal plants or traditional medicines derived from plants.

125Further, no evidence was adduced that cannabis was cultivated, harvested or used by the Anishinaabe including those at Aamjiwnaang or Kettle and Stony Point, pre-contact. The uncontradicted evidence of Dr. von Gernet is that cannabis is not native to Ontario and, contrary to common misconception, cannabis and hemp are not part of the same plant family. They have two different genus. Cannabis was not introduced to North America and Upper Canada until the 18th century. Cannabis indica -the drug cannabis – was not introduced to Canada until the late 19th, early 20th century.

126Similarly, no evidence was adduced that the Applicants’ ancestors adopted a practice of planting, harvesting, using or selling cannabis to other indigenous groups or to non-indigenous persons, at any point post-contact. There is no mention in the written historical records adduced during this application hearing that the indigenous peoples of Aamjiwnaang and Kettle and Stony Point historically cultivated, used, or traded cannabis for medicinal or other purposes. There is no oral history evidence that cannabis was traded among the Anishinaabe or with non-indigenous persons.

127In my view, to characterize the aboriginal practice, custom or tradition as a general right to trade is too broad. It ignores the context of the trade in question and the legislation challenged. Thus, the nature of the aboriginal right asserted here is the trade of medicinal plants including cannabis.

128As already indicated, the evidence fails to establish on a balance of probabilities that there was a practice, custom or tradition of trade of cannabis. Cannabis is not a plant indigenous to Canada. There is no evidence as to when cannabis indica first came to Lambton County. There is no evidence that the First Nations or their members have a history of cultivation and trade of cannabis.

129There is no evidence of a history of trade of cannabis by the First Nations in question or their members, nor could such trade have occurred since at least 1923 when sale of cannabis became illegal. Assuming an aboriginal right to trade in cannabis (and I find that such a right did not exist), the federal Crown effectively extinguished that right in 1923 when it made such trade a criminal offence.

130Simply put, the evidentiary basis for a claim for an aboriginal right to trade in cannabis is wholly inadequate. There is insufficient fabric to stitch together even a tenable argument for such an aboriginal right.

131As for a more broadly based claim of an aboriginal right to trade in traditional plants and medicines, the claim is similarly bereft of merit. The evidence adduced here fails to show that traditional plant-based medicines were traded. What constituted a traditional plant-based medicine is absent. Mr. Plain indicated that medicines were shared when needed. I had the sense he was referring to such sharing within the Reserve, but, in any event, he did not testify that such sharing was part of trading.

132Did they trade plant-based medicines? What were those plants? Did those plants have similar benefits to those ascribed to cannabis? Was such trade integral to the distinctive culture of these indigenous groups? Was the trade of medicinal plants a defining feature of the culture in question?

133The evidence fails to establish on a balance of probabilities that:

1. the First Nations and their members traded plant-based medicines;
2. what plants were traded;
3. any of the traditional medicines derived from plants had benefits similar to cannabis;
4. the trade of plant-based medicines was integral to their distinctive culture; and
5. the trade of medicinal plants was a defining feature of their culture.

134To be clear, the evidence shows that the First Nations and their members had/have a tradition, practice, or custom of trade with others. What is absent here is reliable evidence that such trade included plant-based medicines or cannabis.

135I have already declined to apply the modified ‘aboriginal right’ test in Montour. I pause to note that even under that revised test, the evidence on this application is inadequate. For example, there is virtually no evidence before me of the legal traditional system of the Anishinaabe or the subject First Nations or that the Applicants’ conduct would be protected by same.

136Further, I conclude that criminal legislation prohibiting the sale of cannabis since 1923 operates to extinguish any aboriginal right to trade cannabis and cannabis related products. The challenged legislation continues that prohibition with criminal consequences subject to a limited exception. The Applicants have not constitutionally challenged the validity of the provincial legislation and regulations.

137For the above reasons, I find that the Applicants have failed to establish an aboriginal right that is infringed by the federal Cannabis Act. They have failed to establish the aboriginal right asserted was in existence as of 1982 when the Constitution Act, 1982 and Charter were proclaimed.

138I turn next to the claim of infringement of a treaty right.

Treaty Rights

139Treaties between indigenous people and the Crown are sui generis. A treaty is a written agreement between indigenous people and the Crown that has the following characteristics:

1. The parties to the treaty are the Crown and an indigenous group/collective.
2. The signatories had the authority to bind the parties.
3. The parties intended to create a legal obligation.
4. The agreement must have been entered into for valuable consideration.
5. There is a measure of solemnity to the agreement.

(See R. v. Sioui, [1990] 1 S.C.R. 1025; and R. v. Simon, [1985] 2 S.C.R. 387.)

140A treaty represents a solemn promise between the Crown and the indigenous peoples: R. v. Badger, [1996] 1 S.C.R. 771, at para. 41. It is always assumed that the Crown intends to fulfill its promises: Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, at para. 28.

141What constitutes a treaty should be interpreted broadly: R. v. Sioui, at p. 1035.

142Restrictions on rights should be narrowly construed: R. v. Badger.

143For historic treaties, careful consideration must be given to the context in which the treaties were negotiated and written, including the fact that other oral agreements may have been made at the time the agreement was signed: R. v. Sundown, [1999] 1 S.C.R. 393; Ross River Dena Council v. Canada (Attorney General), 2013 YKCA 6.

144Indigenous treaties should be given a fair, large, and liberal construction in favour of the indigenous people: R. v. Simon, at para. 27. Such treaties must be construed, not according to the technical meaning of the words, but in the sense that they would naturally be understood by the indigenous people: Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 36.

145The honour of the Crown is part of every treaty and the performance of every treaty obligation. It is also a core animating principle of treaty interpretation: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at paras. 19-20; R. v. Badger, at para. 41; R. v. Marshall, [1999] 3 S.C.R. 456, at para. 43.

146The critical question is: what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the indigenous peoples with respect to the interests at stake: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, at para. 45.

147Where there is more than one possible interpretation of the parties’ common intention at the time the treaty was made, the court must choose the one that best reconciles the interests of the indigenous signatories and the Crown: R. v. Marshall, at paras. 14 and 78.

148The court may imply a contractual term based on the presumed intentions of the parties where it is necessary to assure the efficacy of the treaty. In doing so, the court must confine itself to interpreting and applying the actual terms agreed upon by the parties; it must not rewrite the bargain struck under the guise of reconciliation: Saskatchewan (Attorney General) v. Witchekan Lake First Nation, 2023 FCA 105, at para. 131.

149The indigenous perspective must be considered and given due weight. In determining the parties respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the parties. The words of the treaty must be given the sense which they would naturally have held for both parties at the time the treaty was made: R. v. Marshall, at para. 78. It must be recognized that at the time of the treaty making, only the Crown representatives were familiar with the English common law and treaties were written in English using terms whose concepts were largely unknown to the indigenous signatories: R. v. Sioui.

150Extrinsic evidence of the historical and cultural context of the treaty may be received even absent any ambiguity on the face of the treaty: R. v. Marshall, at para. 11. Verbal promises made at the time of treaty making are an important part of interpreting the treaty and understanding the sense in which the treaty would have been understood by the indigenous signatories: R. v. Badger, at para. 41.

151Like aboriginal rights, treaty rights are not frozen in time. The traditional practices provided for in treaties can evolve and remain protected: R. v. Morris, 2006 SCC 59; Quebec (Attorney General) v. Moses, 2010 SCC 17, at para. 7.

152Section 35(1) of the Constitution Act, 1982 did not create treaty rights. Although protected, the existence and scope of the treaty rights are determined by the terms of the treaty interpreted with the principles set out in Marshall: Shot Both Sides v Canada, 2024 SCC 12, at para. 54.

153In Shot Both Sides, the Supreme Court reiterated the impact of s. 35(1) at para. 55:

55This Court has recognized that s. 35(1) was intended to “provide constitutional protection” to pre-existing Aboriginal and treaty rights (Badger, at para. 12; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 84). Furthermore, as stated clearly in Marshall (No. 1), at para. 48, the core impact of s. 35(1) was to prevent abrogation by legislation:

Until enactment of the Constitution Act, 1982, treaty rights of aboriginal peoples could be overridden by competent legislation as easily as could the rights and liberties of other inhabitants. They hedge offered no special protection, as the aboriginal people learned in earlier hunting cases such as Sikyea v. The Queen, [1964] S.C.R. 642 and R. v. George, [1966] S.C.R. 267. On April 17, 1982, however, this particular type of “hedge” was converted by s. 35(1) to sterner stuff that could only be broken down when justified according to the test laid down in R. v. Sparrow, [1990] 1 S.C.R. 1075, at pp. 1112 et seq., as adapted to apply to treaties in Badger, supra, per Cory J., at paras. 75 et seq.

Covenant Chain of Silver

154In her evidence, Dr. Travers referenced “foundation belts” – the Two Row Wampum, the Dish with One Spoon, and the Covenant Chain. Some explanation is required.

155According to Dr. Travers, the Applicants’ expert, the Two Row Wampum was a Haudenosaunee diplomatic convention. It is symbolized in a physical belt that acted as a mnemonic device to be brought out when the oral history of the relationship between the First Nations and British was recounted. The beadwork symbolized events and/or customs and promises.

156The Two Row Wampum belt is made of beads with two purple rows with a white stripe between. The purple rows signify two vessels traveling down a river together. One represents a European vessel, the other a canoe for the First Nations. They work together as they travel along as independent peoples.

157Dr. Travers testified that the Two Row Wampum belt contemplates that neither party would interfere in the customs or ways of the other including their laws. The white stripe of beads between the purple rows represents peace, friendship and respect. It conceptualized the broader relationship between indigenous peoples and the newcomers.

158Although Dr. Travers indicated that there were examples of the Anishinaabe using Two Row diplomacy in the 1840’s, she could not provide a date or year that they adopted the Two Row Wampum.

159According to Dr. Travers, the Covenant Chain was a framework of protocols that the Haudenosaunee used for diplomatic purposes as a way of negotiating or navigating through complex issues while keeping a balance. It was intended to create an environment wherein issues could be discussed in a mutually beneficial manner, one that respected both viewpoints. It was a dispute resolution mechanism and a tool to reinforce trade and alliances - military and friendship. It was also used in the negotiation of treaties.

160The protocols were very structured. Congresses or gatherings typically began with a ceremony such as a condolence ceremony to remember those who died since they last convened. There were speeches by both sides. There are written records of draft speeches by British and colonial officials and summaries of speeches recorded by colonial secretaries, often military officers. Interpreters were used. After one side spoke, the other side would withdraw to deliberate and formulate a response. This process continued until a consensus was arrived at. At the end, a feast was held, and the British would distribute presents to those attending – usually manufactured goods that were much desired by the indigenous peoples present.

161In these gatherings, both parties used words of kinship and alliance. The British referred to the King as the Great Father, and to the indigenous leaders present as brethren or brothers. The First Nations’ speakers likewise invoked familial terms of address. Such terms of address were consistent with their cultures and clans which were inextricably linked to interfamily bonds. A reference to the King as Father did not connote subservience or hierarchal deference; rather, it signified respect for and recognition of the close bond between the indigenous peoples and the newcomers.

162The origins of the Covenant Chain began with initial contact with Dutch traders. The British were adopted into these protocols when the Dutch surrendered their interests to the British in 1664. There is no precise date for the origin of the convention.

163The earliest written references to the Covenant Chain allude to an ancient custom among the ancestors of the indigenous peoples. Sir William Johnson wrote in his diaries in 1748 that the custom arrived with the first ship of Europeans.

164The early written record and oral traditions utilise a metaphor of a rope that tied the Haudenosaunee to the British. Over time, the rope became a chain, then a silver chain that required polishing by regular meetings and presents to prevent rust.

165The early written records refer to a ship laden with goods tied to tree along the bank or shore by a rope. Per Dr. Travers, all the indigenous people had to do was tug on the rope and the British would be there to deal with them. The rope, and later chain, were a metaphor for the bond between them. They were joined together in friendship.

166Thus, the origin story for the close alliance between the Crown and Haudenosaunee featured trade, and a ready willingness and understanding that if either side had an issue they wished to address, they needed only to say so by convening a meeting to discuss it. When the British wanted to discuss something important, for example the Royal Proclamation of 1763, runners were sent from village to village to gather those whose attendance was important to the issue at hand.

167There were occasions where those bonds were strained, when each was concerned that the other was neglecting the relationship or being influenced by outsiders like the French. Irritants that undermined the relationship like traders who sold rum and other spirits, settlers who encroached on lands not yet ceded, and sharp trade practices were similarly raised by the indigenous leaders and discussed with the British using the conventions and protocols of the Covenant Chain. Gatherings took place. Promises were made. The alliances were confirmed. Trade was strengthened.

168The historical record in evidence highlights the importance of the military and economic benefits the indigenous peoples provided. The British were mindful of those benefits and keen to nurture and manage them to avoid unrest and conflict, especially before the War of 1812. After the War of 1812, the establishment of the border between what is now Canada and the United States, and a period of peace along the border, the attitude of the British toward indigenous peoples changed as will discussed below.

169Sir William Johnson was a noted expert in the use of the Covenant Chain protocols to deal with First Nations including the Anishinaabe. He married a Mohawk woman. He spoke Iroquois. He was a trader and later Colonel for the British who led and fought with indigenous fighters. He was based in what is now New York state where he acquired significant land holdings, trading upon his relationships with Iroquois leaders. It was at their request in the mid-18th century that he eventually became superintendent of what became the British Indian Department.

Treaty of Detroit

170The British defeated the French at the battle of Quebec in 1759. At the end of the Seven Years’ War in 1763, France surrendered, inter alia, its colonial interests in Lower and Upper Canada to the British.

171Between December 3-5, 1760, a conference was held at Fort Detroit with the Huron, Wyandotte, Ottawa and Potawatomi Nations who had villages nearby. This was a precursor to a larger conference held the following year at Fort Detroit with many more First Nations including Chippewas. It is unknown whether any from villages at Aamjiwnaang or Kettle and Stony Point were present in 1760.

172The British were represented by George Croghan, Sir William Johnson’s Deputy Superintendent, who was based at Fort Pitt, now Pittsburgh. Also present was Captain Campbell who took control of the fort from the French.

173The objects of the conference were to calm relations with First Nations that had been loyal to the French, to claim the fort publicly, to ensure the future safety of British subjects and their property, to discuss an exchange of prisoners, and to normalize trade with these First Nations. These were unsettled times. Peace was an essential prerequisite to trade. The British wanted peace.

174In his speech to the First Nations at the conference, Major Croghan asked for an exchange of prisoners and that British subjects not be harassed or harmed. He stated:

Brethren, on condition of your performance of what has been said to you, I by this belt renew and brighten the ancient Chain of Friendship between His Majesty’s subjects and the Six United Nations and our brother of the several Western Nations, to the sun setting and wish it may continue as long as the sun and moon give light. [Italics added.]

He then gave a belt to memorialize the promise made.

175I note the following:

1. The Chain was referred to as a “Chain of Friendship”.
2. Major Croghan referred to the Chain with the Haudenosaunee and some other Western Nations.
3. He promised to bring the First Nations assembled into that Chain so long as they did as the British requested.
4. He employed Covenant Chain protocols for the speech and conference.
5. This was a provisional meeting to facilitate the transition to peaceful relations with the indigenous peoples who occupied the lands in which forts belonging to the French were being turned over to the British.
6. The British had an economic and military interest in establishing positive, peaceful relations with these First Nations.

176Over time and especially after defeat of the French at Quebec in 1759, British sovereignty expanded and British officers and officials assumed responsibility for dealings with the Western Nations, including the Three Fires Confederacy. Some of those Western Nations were already familiar with the British from their trade with the Haudenosaunee.

177For their part, the First Nations present at the council appeared to accept the invitation to peaceful relations. They wanted normal trade to resume. Until normal trade resumed, they could not get ammunition or guns needed for hunting. They want British traders to be fair in their dealings with them. They needed access to a gunsmith for repairs and to a doctor. They agreed to strengthen the Ancient Chain of Friendship – to join with the Six Nations in that Chain with the British.

178The following year, in 1761, a larger conference was held at Detroit. It is referred to in the papers of Sir William Johnson as “Proceedings at a Treaty held at Detroit by Sir William Johnson Bart [Baronet] with the Sachems & Warriors of the several Nations of Indians there assembled”. Dr. Travers testified that not all treaties involved the surrender of land. Treaty in this context meant “to treat with”. From the British perspective, a treaty is “a meeting of the minds or a bringing together of two groups in a council”.

179Sir William Johnson’s papers list the officers present. They also list various indigenous groups present including but not limited to the Chippewas, Ottawas, Potowatomis, Mohawks, Oneida, Senecas. Per Dr. Travers, the indigenous peoples listed were the primary people in the Great Lakes.

180The Covenant Chain protocol was used for this council. It started with a ceremony. It was a solemn occasion. The words spoken were written down by a recording secretary on the British side. Interpreters were present. There are no signatures on the documents created.

181The following is evident from the speeches of Sir William Johnson at this conference or “treaty”:

1. He held out that as King George’s Superintendent, he had sole management and care of all the King’s Indian allies in the northern part of North America.
2. He had a permanent council fire at his home which all were welcome to attend.
3. He hoped to establish another permanent council fire at Detroit where councils could be held to discuss issues and trade.
4. The British wished to extend their alliance of friendship to more First Nations.
5. He referred to the Covenant Chain and extended it to the First Nations present to join.
6. He made clear that it was only by embracing the Covenant Chain could the First Nations flourish and be happy. This was a means to secure peace and prosperity – an alliance with the British.
7. If accepted, the British would promote trade on equitable terms.
8. Past grievances and disputes including prior support of the French would be swept away.
9. The British had no intention of taking their lands from them - a rumour planted by the French.
10. Peace meant open trade.

182According to Dr. Travers, a treaty was made at Detroit in 1761. It consisted of mutual promises: 1) by the First Nations - to keep the peace, to return any prisoners, and to commit themselves to the Covenant Chain going forward, and 2) by the British – if the First Nations adhere to their obligations, they will be treated as independent nations and be treated as allies. This was a treaty of peace, alliance, and friendship which, if followed by the First Nations, would allow equitable trade to occur. From that trade and alliance, the First Nations would flourish.

Royal Proclamation of 1763

183Trade with indigenous peoples, especially with those previously allied with the French, did not immediately resume as before. There was tension between military officials like General Amherst and Indian Department officials like Sir William Johnson. By all accounts, Amherst despised indigenous people and was vehemently opposed to trading rifles and ammunition that could be used against the British.

184Some First Nations did not embrace British overtures for peace. Some believed rumours that the British were simply going to take Indian lands.

185The delay in resumption of normal trade caused significant hardship for many indigenous communities. The tools they needed for hunting, like rifles and ammunition, were denied them. They could not get credit as before. The available goods were lower quality. Their conditions became dire. This contributed to the conflict with Pontiac and others which served to further delay normal trade.

186The concerns expressed by indigenous leaders to colonial and British officials like Johnson were passed up the proverbial ladder. Irritants to trade were chief among them including expansion of the colonies into unceded indigenous lands, the use of alcohol to obtain land sales, unfair or unscrupulous traders, and persistent rumours that the Crown planned to take, not buy unceded lands. Trade with the indigenous peoples was important to the Crown and its colonies. Hostilities were bad for business. Even though the French had capitulated, their former indigenous allies could threaten peace and trade.

187It is against this backdrop that the King issued a Royal Proclamation on October 7, 1763. By this Proclamation, the King, inter alia,

• fixed the boundaries of the colonies at the Appalachian Mountains with all known land west of that boundary reserved for the use of the tribes that resided there,
• established administrative structures for the colonies but not for Indian lands,
• directed those already within the indigenous territories to remove themselves, viz. settlers who had moved in without First Nation permission,
• interposed the Crown between the indigenous peoples and prospective purchasers and settlers to prevent frauds and abuses. All future sales of Indian lands had to be to the Crown at a public meeting of the First Nation with a vote by them to surrender the lands, and
• directed that those who traded with the indigenous peoples be licenced by the Crown.

188Dr. Travers opined that the Royal Proclamation of 1763 was a response to indigenous complaints raised in Covenant Chain ceremonies throughout the colonial period. It was also in response to the uprising that occurred in 1763 with Pontiac and some of the Western and Six Nations. She testified that the Royal Proclamation did not take away any indigenous rights; to the contrary, it recognized and acknowledged them.

189I pause to note that part of the Applicants’ theory is that none of the treaties limited or proscribed their right to trade, either with each other or with non-indigenous peoples. The Royal Proclamation likewise did nothing to remove, limit, or restrict their trading practices and traditions. By omission, the treaties and Royal Proclamation accepted the First Nations’ rights in the land and right to deal by trade with others. It is implicit in the treaties made between separate nations that indigenous peoples were free to continue to trade without Crown interference.

190I will address that position below.

Treaty of Niagara

191A Congress was held at Niagara at the request of the British from July 17 to August 4, 1764. It was well-attended with 1725 people recorded as attending with likely many more also present.

192According to the papers of Sr William Johnson, some British traders had been harmed and their goods taken. He met with leaders of the First Nations to push for peace, to have them exert their influence on those indigenous groups fighting the British to stop. He indicated that until peace was achieved, trade could not resume.

193During the Congress, he met with, inter alia, the headmen of the Applicants’ ancestors. A pipe of peace was presented to him. They told him of their poverty and distressed circumstances.

194His papers indicate that Johnson invoked their past commitments to peace and friendship. He reminded them of the Covenant Chain. He used Covenant Chain metaphors to describe their relationship. He provided a belt and gave medals to those who had fought for the British in the past. Those medals were a symbol of the commitments to peace and mutual security previously made.

195Dr. Travers opined that the First Nations’ speakers indicated their approval of what Johnson had communicated by acceptance of the medals. They would look to the medals as symbols of the relationship. They were also a reminder of the promises made by the British. This was a meeting where the themes of friendship, alliance, and trade were discussed using Covenant Chain diplomacy. They ironed out their differences and came to mutual agreement on their commitments to one another.

Treaty No. 2

196Sir William Johnson died in 1774. He was replaced as Superintendent by William Butler. Alexander McKee was appointed Deputy Superintendent responsible for much of the area that is now Southwestern Ontario.

197Following the American War of Independence, the Americans steadily pushed westward into Ohio and elsewhere taking up indigenous lands that were supposedly subject to the protections of the Royal Proclamation.

198For its part, the British focus was to acquire indigenous lands in what is now Ontario for settlement by white settlers. They entered into a series of numbered treaties with First Nations for large and smaller tracts of land.

199Treaty No. 1 was a surrender of Michilimackinac Island. Treaty No. 2 in 1790 was a surrender of a vast tract of land in Southern Ontario. Exhibit 13 is a map that depicts the boundaries of Treaty No. 2. The lands surrendered are bounded as follows:

• On the east by a line that represents the westerly boundary of a treaty of surrender from the Mississaugas from 1784
• On the north by the southern edge of the Thames River (referred to on the map as the Riviere la Tranche)
• On the south by the edge of Lake Erie
• On the west by Lake St. Clair and the Detroit River (referred to on the map as the Straits of Erie).

200The Treaty became known as the McKee Treaty. As mentioned, Alexander McKee was a deputy superintendent of the British Indian Office. He was a trader. He had been stationed at Fort Pitt in what is now Pittsburgh. He fought with First Nations during the War of 1812.

201By 1790, there were numerous squatters on Indian lands in this area. They occupied lands for which no prior surrender had been obtained. Some were British officers and officials who acquired the lands directly from the chiefs, trading on their personal relationships. In doing so, they circumvented or outright ignored the requirement in the Royal Proclamation of 1763 that lands be first surrendered to the Crown at a public meeting. These illicit land transactions, the presence of settlers in the area, and the need for more land for settlement prompted the Crown direct McKee to seek a surrender of a larger tract of land from the First Nations.

202The meeting for the surrender of lands by Treaty No. 2 took place at a council held at Detroit on May 19, 1790. The principal chiefs of the Ottawa, Pottawatomi, Huron and Chippewa Nations were present. Two interpreters were used. McKee and officers of the Fort were present for the Crown. The lands were acquired for a one-time payment of goods valued at 1200 pounds in Halifax currency. Merchants were present with the goods purchased by the surrender funds.

203Unlike the earlier councils and congresses where agreements and alliances were made dealing with friendship, trade, and military alliance but no formal written agreement signed, the Crown prepared a formal surrender document for signature by the chiefs and principal men of the First Nations. The document was written entirely in English with generous use of legal words and terms. The indigenous signatories placed their mark or dodem on the document.

204Treaty No. 2 is silent with respect to trade. It makes no reference to any promises or commitments to the indigenous peoples with respect to their use of their unsurrendered lands. The written record of the May 19, 19790 council is similarly silent. No oral history evidence was adduced of any such discussions or promises.

205Although Dr. Travers opined that it was doubtful that the First Nations understood the nature of the document signed or the implications of the transaction, there is nothing in the evidence adduced for this surrender of land that touches upon cannabis, the trade of cannabis, rights to trade indigenous medicines or plants, or the right to trade generally.

Chenail Ecarte Reserve

206The Jay Treaty was signed by the British and Americans in 1796. Pursuant to that treaty, the forts at Detroit and Michilimackinac were to be turned over to the Americans. A new fort was constructed at Amherstburg on the British side of the river.

207On August 30, 1796, a council was held for the purpose of discussing a surrender of land along the St. Clair River (Chenail Ecarte) for use by other indigenous groups loyal to the Crown who were being forced from their lands by Americans in the Ohio Valley. The documents of the council meeting indicate that the First Nations were being asked to set aside this land which they would be able to use as well. In other words, would they share this relatively small area of land with those indigenous peoples displaced from the Ohio Valley.

208The surrender document does not align with the request made. It is a surrender of land to the Crown absolutely. There is no reference to any ongoing right of use by the First Nations nor to any sharing of the land with others. The land was subsequently granted to white soldiers who fought in the War of 1812. The honour of the Crown appears notably absent in this transaction. However, as indicated, the fairness or lack thereof for this transaction is not an issue to be decided on this application.

209Once again, there is nothing in the discussions or documentation for this surrender of land that refers to cannabis, trade of cannabis, trade generally, or protection of traditional practices and customs of the indigenous peoples on the lands they traditionally occupied that were not being surrendered. There is no oral history put forward to suggest such discussions, representations or promises occurred.

210According to Dr. Travers, the written records available show that the Covenant Chain ceremonies were not used although Covenant Chain language was employed by McKee. She testified that she has observed a trend in this period that Covenant Chain language is either absent or used in some circumstances but not others. Covenant Chain protocols were not used at treaty councils after this.

War of 1812

211The Applicants’ ancestors fought on the British side of the War of 1812. Minutes of a council held at Quebec on March 17, 1814 list the chiefs and warriors of the Western Nations present. The British wanted these nations to help drive the Americans back from the Province.

212The Applicants’ ancestors and other Western Indians played a vital role in the defence of Upper Canada. In doing so, they kept their side of the promises made to support the Crown.

213On April 24, 26, and 27, 1815, a council was held at Burlington Heights. The meeting was attended by William Clause who succeeded Alexander McKee as deputy superintendent. The purpose of the council was to inform the indigenous allies of the peace agreement reached with the Americans.

214During the council, the indigenous leaders reminded the Crown of promises made that they receive monies and pensions for their services during the war. They also wanted support because having been away fighting, they had not planted corn and other foods. Many of the promises made by the British to their indigenous allies during the war were not honoured.

215There is nothing in the evidence of this council or of their efforts for the British in the war that deals with protection or recognition of trade rights.

Treaty 29 (Huron Tract Treaty)

216The treaty that set apart the Reserves occupied by the Applicants’ First Nations took nine years to negotiate.

217Once again, the Crown wanted land for settlement. They approached the First Nations who indicated that they wanted:

1. Four Reserves set aside at locations identified by them.
2. Fair value for the lands surrendered.
3. If the British assessed that the lands reserved were insufficient to support them by farming and hunting, additional lands would be provided to the First Nations.
4. Provision of a blacksmith and husbandry or farming instructor near the Reserves. The blacksmith would repair their traps, axes, and guns. The farming instructor would instruct them in the art of husbandry.
5. Payment for the lands to be made over the course of 50 years, such payment to be separate and distinct from payments made yearly by the King for their loyalty and past services.

218On April 26, 1925, James Givins, Superintendent of Indian Affairs on behalf of the King, and the chiefs and principal men of the Aamjiwnaang and Kettle and Stony Point First Nation entered in a provisional treaty (Treaty No. 27 1/2) for the surrender and conveyance to the Crown of 2,756,960 acres of land – the Huron Tract. It is written in English and reads like a contract, even referring to the “contracting parties”.

219The provisional treaty made no reference to a blacksmith or farming instructor. It did not provide for additional lands to be given to the First Nations should their lands prove insufficient for farming and hunting. The population of the Chippewa Nation inhabiting the territory is stated to comprise 440 individuals who would share in an annual annuity of 1100 pounds in goods at the Montreal price paid by the Crown unless the number of annuitants fell below one-half that number in which case the annuity would reduce accordingly.

220The Reserves were surveyed by Malcolm Burwell in 1826.

221The final treaty (Treaty No. 29) was signed July 10, 1827. The Treaty states:

THIS INDENTURE, made the tenth day of July, in the year of Our Lord one thousand eight hundred and twenty-seven, between Wawanosh, Osawip, Shashawinaisie, Pukinince, Negig, Cheebican, Mukatwokijigo, Mshikinaibik, Animikince, Peetawtick, Shawanipinissie, Sagansh, Anottowin, Penessiwagum, Shaioukima, Chekayeyan, Mokeetchiwan and Quaikeegon, Chiefs and Principlal Men of that part of the Chippewa Nation of Indians inhabiting and claiming the territory or tract of land hereinafter described of the one part, and Our Sovereign Lord George the Fourth, Defender of the Faith, of the other part.

Whereas, His Majesty being desirous of appropriating to the purposes of cultivation and settlement a tract of land hereinafter particularly described, lying within the limits of the Western District and District of London, in the Province of Upper Canada, and heretofore possessed and inhabited of the Chippewa Nation of Indians, it was proposed to the Chiefs and Principal Men of the said District, on the twenty-sixth day of April, in the year of Our Lord one thousand eight hundred and twenty-five, that they should surrender the said tract of land in the possession and right of possession heretofore enjoyed by them in the same to His Majesty, His heirs and successors, for such recompense to be made by His Majesty to the said Nation of Indians as should at the said Council be agreed upon.

And whereas it was at the said Council, concluded upon and agreed between James Givins, Esquire, Superintendent of Indian Affairs, acting in behalf of His said Majesty in the premises, and the Chiefs and Principal Men of the said Nation of Indians assembled at the said Council, that the parcel or tract of land hereinafter particularly described should, for the consideration herein set forth, be surrendered and for ever yielded up by the said Nation of Indians to His Majesty, His heirs and successors, and a provisional agreement was for that purpose made and executed by the said James Givins, Esquire, and the Chiefs and Principal Men of the said Nation of Indians, bearing a date the said twenty-sixth day of April, in the year aforesaid.

And whereas, the tract of land intended and agreed to be surrendered as aforesaid has been since accurately surveyed, so that the same, as well as certain small reservations expressed to be made by the said Indians from and out of the said tract for the use of themselves and their posterity, can now be certainly defined. …

222There is a lengthy description of the lands surrendered and ceded to the Crown which comprise 2,200,000 acres more or less. The treaty states the following with respect to the reservations:

… saving, nevertheless, and expressly reserving to the said Nation of Indians and their posterity at all times hereafter, for their own exclusive use and enjoyment, the part or parcel of the said tract…[description of lands reserved follows].

223I note the following with respect to this treaty and the negotiations and discussions that led to it:

1. The indigenous peoples were referred to as part of the Chippewa Nation of Indians. They were not referred to as “Subjects”.
2. The lands surrendered and reserved were acknowledged to be lands possessed and inhabited by them.
3. The reserved lands were for their “exclusive use and enjoyment”.
4. There is no reference to trade in the treaty or the discussions that led to the treaty.
5. By the same token, there was no restriction or express limitation on the activities that may be carried on by the First Nations on the reserved lands.
6. Correspondence between provincial land administrators in the 1790’s discussed the need to acquire as much land as possible from the First Nations before they discovered how valuable the land really was.
7. In 1797, the Indian Department advocated and pursued a policy to keep the Indian Nations “separate and unconnected with one another” so that they would be “rendered in proportion more dependent on the King’s government”.
8. In their dealings directly with the Chippewas to obtain the Huron Tract Treaty, the Crown continued to use words of kinship and to assure the indigenous peoples of the King’s benevolence and concern for their best interests. For their part, the indigenous Chiefs indicated their trust in the King’s benevolence and generosity. They continued to subscribe to the spirit of the Covenant Chain relationship.

224This is the final treaty relied upon by the Applicants. It is silent as to trade. It makes no commitments as to future economic activities on the reserves established. There is nothing in the written record and oral histories of this treaty or the provisional treaty that preceded it that suggest or even hint at cannabis, trade of cannabis, trade of plant-based medicines, or trade generally.

225The annuity monies paid annually pursuant to the Huron Tract Treaty were spent off-Reserve at nearby merchants in Sarnia and Forest, Ontario. There is no evidence of indigenous commercial business activity apart from farming on Reserve until the 1960’s or 1970’s. Both First Nations now have retail businesses owned and operated by the First Nation and entrepreneurial members of their communities. Aamjiwnaang First Nation developed an industrial park where several indigenous run businesses operate.

226Following the Huron Tract Treaty, petitions were sent to government officials protesting encroachment on Reserve lands by whites and the taking of stone and timber without permission and without payment again by whites. In 1839, the provincial Crown enacted legislation appointing commissioners to investigate and remove trespassers on Reserve and unsurrendered lands, and to address resources removed from Reserves illegally. This step proved largely unsuccessful but led to greater and greater control of treaty monies and use of reserve lands exercised by Crown officials like Indian agents.

227In the 1830’s, Sir Francis Bond Head hatched an ill-advised scheme to remove indigenous peoples including those on established reserves to Manitoulin Island. That plan was part of the “civilization” theme prevalent at that time. The aim was to remove the indigenous population to a remote area to avoid conflict with settlers, to get more land from the indigenous peoples for settlement, and to make easier the task to converting them to an agrarian lifestyle and Christian values.

228During the period between 1827 and Confederation, the Applicants’ ancestors protested by way of letters and petitions the failure of the Crown to uphold the Treaty and promises made before, during and after the War of 1812. Covenant Chain language was used in those letters and petitions. Those letters largely fell on deaf ears.

229None of the letters or petitions to the Crown in this period refer to trade on Reserve by the members of the First Nation, to interference with trade on Reserve, or to trade of medicinal plants to other First Nations or to settlers. There is no reference to cannabis.

Treaty Rights Claim Analysis

230In oral submissions, Applicants’ counsel submitted that:

1. The Covenant Chain is a treaty.
2. Pursuant to that treaty, the Crown was obliged to first come to the First Nation(s) if there was an issue that would affect the First Nation or First Nation lands.
3. The purpose of coming to the First Nation(s) was to work things out with the First Nation(s) directly.
4. The Covenant Chain treaty rights have not been extinguished.
5. The Crown failed to follow the process required by that treaty.

231In their written submissions, the Applicants contend that the Royal Proclamation of 1763 and the various treaties with the Crown recognized the First Nations as independent nations, free to trade and use their lands as they saw fit. The Huron Tract Treaty of 1827 guaranteed the First Nations exclusive use and enjoyment of their Reserves. Nothing in the Royal Proclamation of 1763 or the treaties signed with the Crown limited the use the First Nations were entitled to make of unsurrendered and reserve lands. It is implicit in those treaties that the First Nations and their members would be free to carry on trade on reserve and unsurrendered lands without interference or restriction. Thus, the Applicants are at liberty to sell cannabis on Reserve without need of a licence to do so consistent with their treaty rights.

232The Crown’s position is that:

1. The Covenant Chain is no more than a diplomatic convention used in the 17th and 18th centuries. It was not a treaty.
2. Nothing in the Royal Proclamation of 1763 or the councils, congresses, and treaties, including land surrender treaties, mentioned trade of cannabis. That subject simply never came up. There is no treaty right to sell or trade cannabis.
3. Even if the treaties were construed to capture trade of cannabis, which they should not, that right was extinguished by legislation in 1923 prohibiting possession and sale of cannabis indica. It remained a criminal offence to possess and sell cannabis until 2018. It remains a criminal offence to do so without a licence from the Province of Ontario. Thus, there was no existing treaty right to trade or sell cannabis as of April 17, 1982 when the Constitution Act, 1982 became law.
4. The Applicants have not challenged the constitutionality of the Ontario legislation.

233I will deal first with the Covenant Chain. Is it a treaty?

234The Covenant Chain is described variously by Dr. Travers as diplomatic protocols and conventions, a dispute resolution mechanism, and a tool used in the negotiation of treaties. It involved ceremonies, solemnity, a clearing of the air to allow thoughtful discussions unburdened by strong emotion, kinship addresses, feasts, and presents at the end to polish the chain.

235Dr. von Gernet testified that the Covenant Chain was little more than a figure of speech, part of what is referred to as forest diplomacy. It has no known date of origin. It first appears in written records in the 1670’s in relation to dealings with the Haudenosaunee. It was not a treaty, per se. It was an approach to addressing issues with indigenous peoples to avoid conflict and smooth trading relationships. It was a practice that was used extensively by Sir William Johnson and others but fell out of favour by the 19th century. Both parties failed to follow the protocols at different points. Neither was naïve to the other parties’ interests and failings.

236I observe that there is no formal document entitled “Covenant Chain Treaty” with signatories from both sides. There is no signed treaty that embodies the terms ascribed by the Applicants.

237There are documents where the Covenant Chain is referenced – usually in speeches made to remind one side or the other of the ancient bond or covenant between them. There are documents of councils, congresses and documents that reflect the customs and protocols utilised by the Haudenosaunee and British from the earliest days of their special relationship. They were military allies in times of conflict. They were trading partners. They shared mutual goals, e.g. defeat of the French and their Western Indian allies.

238I accept that in the aftermath of the defeat of the French and their indigenous allies, including the Western Indians of which the Three Fires Confederacy was part, the British followed the protocols, customs, and conventions that were identified as part of the Covenant Chain in their dealings with the Applicants’ ancestors. They offered to expand their ‘special relationship’ with the Haudenosaunee to include these indigenous groups. Peace and trade were central to that relationship.

239Thus, the indigenous peoples at Aamjiwnaang and Kettle and Stony Point were invited to join the special relationship already in place between the British and Haudenosaunee. That special relationship was built on a military alliance and trade between the British and indigenous peoples. The indigenous peoples at Aamjiwnaang and Kettle and Stony Point took up that offer. They fought along side the British in the War of 1812. They trusted the Crown when asked to share what they had in abundance – land. They engaged in trade at the forts operated by the British and with settlers who moved into this region. They did so peaceably.

240I accept that the indigenous peoples at Aamjiwnaang and Kettle and Stony Point embraced the spirit of the relationship signified by the symbolism of the Covenant Chain metaphor. They trusted the Crown to deal fairly and honourably with them, even when it should have been apparent that the Crown had not done so in past dealings.

241I find that the Covenant Chain was a diplomatic protocol, a dispute resolution mechanism, a treaty negotiation protocol, and a treaty of friendship and alliance. That friendship and alliance was the sine qua non for trade between the British and indigenous groups who were part of the special relationship. Although not set out in a formal written agreement signed by the parties, it was nevertheless evidenced by the Crown’s own records of communications with the First Nations.

242The terms of the treaty were understood by the indigenous peoples to be:

1. they must maintain peaceful relations with the British;
2. they will support the British in the event of conflict including by fighting with the British;
3. they must not harm or harass British settlers or traders;
4. if they adhere to items 1-3 above, the British will trade with them and in doing so, will be fair in their dealings;
5. the British will not take their lands without first purchasing them from the indigenous group that used those lands; and
6. if either side had an issue they wished to discuss with the other, each could request a council to discuss the issue to find a resolution.

243The evidence establishes that while either side could call for a meeting to discuss an issue of concern, the Crown was not obligated to discuss each and every issue with the First Nations in advance of acting. Likewise, nothing required the First Nations to raise every concern with the Crown first before proceeding. Each side had the option to convene a council to discuss their concerns. Neither side was obligated to accede to the other’s position on the issue discussed.

244Thus, if the Covenant Chain is indeed a treaty, I find that at its highest, it obligates the Crown to meet to discuss issues of concern to the First Nations upon request by the First Nations. To use the original analogy, if the First Nations “tug on the rope”, the Crown will meet to discuss the issues important to the First Nations in the spirit of their special relationship.

245Here, there is no evidence that either First Nation sought a meeting with or directed correspondence to the federal or provincial Crown to discuss the impact(s) on Reserve of the changes to the prohibition against the sale of cannabis. There is no evidence that the Chiefs and Councils invoked the Covenant Chain treaty to raise concerns about the government’s proposed legislation or to say that cannabis stores on Reserve should be exempted from licencing and regulation.

246I do not agree that the special relationship between the Crown and indigenous peoples symbolized by the Covenant Chain metaphor gives rise to a treaty right that permits the Applicants to sell cannabis on Reserve without being licenced to do so and without regulation. I find that there is nothing in the circumstances surrounding the creation, maintenance and expansion of the Covenant Chain relationship that deals with cannabis or the trade of cannabis. Nothing in the Covenant Chain documents or oral histories refers to the trade of cannabis or medicinal plants.

247Applicants’ counsel appears to argue that the Crown was obligated by the Covenant Chain to first consult with these First Nations (and presumably every other First Nation encompassed by the treaty) before enacting the cannabis legislation above. I disagree for the reasons above.

248Moreover, it is clear on the evidence including that of Dr. Travers that by Confederation, the Crown was no longer adhering to Covenant Chain protocols, language, or processes. There is no evidence that in 1923 when possession and sale of cannabis indica was first prohibited or after that the First Nations or its members protested the Crown’s prohibition or asserted an infringement of their treaty rights. Neither First Nation invoked the Covenant Chain to seek a council with the Crown to discuss the prohibition on possession and sale of cannabis.

249Thus, I find that the Covenant Chain did not establish treaty rights to trade in cannabis nor did it obligate the Crown as a matter of treaty to first contact and discuss its planned legislation. As will be explained below, the legislation does not abrogate an “existing” treaty right.

250I turn next to the other treaties referred to above. None of the treaties by which the Aamjiwnaang and Kettle and Stoney Point surrendered lands to the Crown (Treaty No. 2, Chenail Ecarte Reserve, the Huron Tract Treaty (Treaty No. 29)) refer to the trade of cannabis, trade of medicinal plants, or trade generally on Reserve. The Treaties of Detroit and Niagara are likewise silent. The historical written records and oral history evidence show no promises or representations made by the Crown that the First Nations would be a liberty to trade whatever they wanted to whomever they wanted on reserve.

251To the extent trade was discussed, it focused on trade with the British and with traders affiliated with the British. Cannabis and medicinal plant trade was never discussed or, at least, there is no evidence it was.

252As indicated, the Applicants submit that the right to exclusive use and enjoyment coupled with the absence of any restrictions on their right to trade amount to an implicit treaty right to trade generally without limitation or restriction. That includes sale of cannabis without a licence or regulation.

253As at April 17, 1982, cannabis remained a controlled substance that was illegal to possess or sell. If there was a treaty right to sell or trade in cannabis, and I conclude there was never such a treaty right, it had been extinguished by legislation for almost 60 years. There was no ‘existing’ treaty right to sell or trade cannabis in 1982 that is entitled to constitutional protection.

254The submission that the First Nations (Aamjiwnaang and Kettle and Stoney Point) have an unfettered and unlimited right to carry on any form of trade on Reserve because there are no restrictions expressed in the treaties on their right to trade is overbroad: R. v. Pamajewon, [1996] S.C.R. 821, at paras. 26 and 27. Further, there is an absence of compelling evidence of such an intention by either party to the treaties.

255In Pamajewon, the accused were charged with keeping a common gaming house under s. 201(1) of the Criminal Code. The First Nations asserted inherent rights of self-government and self-regulation in its economic development. Although the case was framed as an aboriginal rights case, the positions advanced are comparable to that before me. The approach taken by the Court is apropos. At para. 27, the court rejected the claim as “a broad right to manage the use of their reserve lands” on the basis that the claim asserted was too general and thereby overbroad

256There is nothing in the treaties relied upon by the Applicants, including the Covenant Chain that establishes or recognizes a right to sell or trade in cannabis. There is nothing in the said treaties that provides for or recognizes a right by the First Nations to regulate the trade or sale of cannabis.

257There is no evidence that either First Nation has enacted or passed any Band Council resolution or law to regulate the operation and sale of cannabis on Reserve. The reserves are not the ‘wild west’ for sale of cannabis; i.e. a place where the laws of Canada including criminal law do not apply.

258I conclude that:

1. There is no treaty right that allows the Applicants to sell or trade in cannabis without a licence as required by legislation enacted by the federal Crown.
2. The Covenant Chain is a treaty of friendship and alliance, but it confers no right to trade in cannabis.
3. The Covenant Chain Treaty contains a right to require the Crown to meet with and discuss issues of concern to the First Nations. No such request has been made by either First Nation under the Covenant Chain.
4. Nothing in the circumstances surrounding the making of the treaties referred to above contemplated the sale or trade of cannabis by the First Nations or their members.
5. The establishment of the reserves by treaty and right to exclusive use and possession of same does not include the right to sell substances, the sale of which would be a criminal offence.
6. Cannabis sale was prohibited by law – an exercise of sovereignty – since 1923. There was no existing treaty right to sell or trade cannabis when the Constitution Act, 1982 and Charter were proclaimed. No constitutional protection attaches to an alleged right to sell or trade in cannabis on Reserve.

259In light of my findings above, it is unnecessary to consider whether the failure to challenge the provincial legislation is fatal to the Applicants’ claim.

260I turn next to the claim under UNDRIPA.

United Nations Declaration on the Rights of Indigenous Persons Act

261The United Nations Declaration on the Rights of Indigenous Persons Act, S.C. 2021, c. 14 received Royal Assent on June 21, 2021. The 2007 United Nations Declaration on the Rights of Indigenous Peoples is attached as Schedule I to the legislation.

262The preamble to the UNDRIPA provides, inter alia:

Whereas the United Nations Declaration on the Rights of Indigenous Peoples provides a framework for reconciliation, healing and peace, as well as harmonious and cooperative relations based on the principles of justice, democracy, respect for human rights, non-discrimination and good faith;

Whereas the rights and principles affirmed in the Declaration constitute the minimum standards for the survival, dignity and well-being of Indigenous peoples of the world, and must be implemented in Canada;

Whereas First Nations, Inuit and the Metis Nation have, throughout history and to this day, lived in the lands that are now in Canada with their distinct identities, cultures and ways of life;

Whereas Indigenous peoples have suffered historic injustices as a result of, among other things, colonization and dispossession of their lands, territories and resources;

Whereas the Government of Canada rejects all forms of colonialism and is committed to advancing relations with Indigenous peoples that are based on good faith and on the principles of justice, democracy, equality, non-discrimination good governance and respect for human rights;

Whereas the Declaration emphasizes the urgent need to respect and promote the inherent rights of Indigenous peoples of the world which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories, philosophies and legal systems, especially their rights to their lands, territories and resources;

Whereas the Government of Canada recognizes that all relations with indigenous peoples must be based on the recognition and implementation of the inherent right to self-determination, including the right of self-government;

Whereas the Government of Canada is committed to taking effective measures - including legislative, policy and administrative measures - at the national and international level, and cooperation with Indigenous peoples, to achieve the objectives of the Declaration;

Whereas the Declaration is affirmed as a source for the interpretation of Canadian law;

Whereas the protection of Aboriginal and treaty rights - recognized and affirmed by section 35 of the Constitution Act, 1982 - is an underlying principle and the value of the Constitution of Canada, and Canadian courts have stated that such rights are not frozen and are capable of evolution and growth;

Whereas there is an urgent need to respect and promote the rights of Indigenous peoples affirmed in treaties, agreements and other constructive arrangements, and those treaties, agreements and arrangements can contribute to the implementation of the Declaration;

And whereas measures to implement the Declaration in Canada must take into account the diversity of Indigenous peoples and, in particular, the diversity of the identities, cultures, languages, customs, practices, rights and legal traditions of First Nations, Inuit and the Metis and of their institutions and governance structures, their relationships to the land and Indigenous knowledge;

263Section 4 of the Act sets out the purposes of the legislation being:

(a) to affirm the Declaration as a universal international human rights instrument with application in Canadian law; and (b) to provide a framework for the Government of Canada’s implementation of the Declaration.

264The following Articles in the Declaration are noteworthy:

Article 3 – Indigenous peoples have the right to self-determination. By virtue of that right they may freely determine their political status and freely pursue their economic, social and cultural development.

Article 4 – Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs as well as ways and means for financing their autonomous functions.

Article 9 – Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.

Article 11 – 1. Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature. 2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 12 – 1. Indigenous peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains. 2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

Article 13 – 1. Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons. 2. States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.

Article 18 – Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by them in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

Article 20 – 1. Indigenous peoples have the right to maintain and develop their own political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities. 2. Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress.

Article 24 – 1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals. Indigenous individuals also have the right to access, without any discrimination, to all social and health services. 2. Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right.

Article 25 - Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and to uphold their responsibilities to future generations in this regard.

Article 26 – 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 31 – 1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

Article 37 – 1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have the States honour and respect such treaties, agreements and other constructive arrangements. 2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.

265The legislation contemplates that the responsible Minister will develop an action plan in cooperation and conjunction with the indigenous peoples of Canada. The Minister will report to Parliament on progress made achieving the objectives of the Declaration.

266I pause to note that some of the principles enumerated in the Declaration are already part of Canadian law; see for example, the recognition and protection of aboriginal and treaty rights.

267The Applicants refer in their submissions to their “inherent rights” as aboriginal persons. Neither the Act nor the Declaration appended as a schedule to the Act defines “inherent rights”.

268In R. v. Desautel, 2019 BCCA 151, at para. 63, the British Columbia Court of Appeal referred to aboriginal rights as inherent rights that existed at the time of contact. In R. v. Montour, 2023 QCCS 4154, the trail judge wrote at para. 1309:

1309. The UNDRIP recognizes inherent rights that Indigenous peoples have, as peoples. In the philosophy of the UNDRIP, Indigenous peoples do not have to prove their rights, right by right, group by group. They are generic rights inherent to Indigenous peoples by the sole fact that they are Indigenous and that they are peoples.

269In Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10, at para. 47, the Supreme Court discussed inherent rights in the context of the inherent right to self-determination and self-government:

47As a preliminary matter, we note that this Court has yet to recognize an inherent right to indigenous self-government as an Aboriginal right protected under s. 35 of the Constitution Act, 1982 (see. R. v. Pamajewon, [1996] 2 S.C.R. 821, at para. 24; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 171), an inherent right to Indigenous self-government has now been affirmed on the international plane by Article 4 of the United Nations Declaration on the Rights of Indigenous Peoples …In 2016, the Canadian government supported the Declaration committed to adopt and implement it in accordance with the Canadian Constitution. Recent federal legislation has affirmed the declaration as “a universal international human rights instrument with application in Canadian law” and provides “a framework for the Government of Canada’s implementation of the Declaration” [cites UNDRIPA, s.4].

Unfortunately, the Supreme Court did not define inherent rights and their relationship to constitutionally protected aboriginal rights.

270Clause 7 of the preamble to the Declaration refers to the source of Indigenous inherent rights as deriving “from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources”.

271In Di Blasé, Antoinetta and Vadi, Valentina, Introducing the Inherent Rights of Indigenous Peoples (February 2023, 2020, found in A. Di Blasé and V. Vadi (eds.) The Inherent Rights of Indigenous Peoples in International Law (Rome: University of Rome 3 Press 2020), 15-39, https: //ssrn.com/abstract=3659409, the authors defined inherent rights at p. 32 in the following terms:

The inherent rights of indigenous peoples are not granted by states; rather, they pertain to indigenous peoples. They are historically and currently inherent rather than acquired rights, They are based on the deep connection of indigenous peoples to their lands, cultures, and legal systems...Nonetheless, the concept of inherence is at the heart of human rights law and current international law itself. Human rights are inherent rights, rights that pertain to human beings because of their intrinsic human dignity. The recognition of the ‘inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.’ Therefore, the recognition of the inherent rights of indigenous peoples is an expression of ‘the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family’. It expresses ‘the idea that human rights are inherent in the human person and not simply the result of social, legal or political processes’

272At page 33 of the same paper, the authors indicate that “Self-determination entails indigenous peoples being entitled to be ‘in control of their own destinies”.

273It is unclear whether ‘inherent rights’ are a subset of ‘aboriginal rights’ protected by the Canadian constitution, or vice versa. It seems to me that inherent rights and aboriginal rights share common ground but inherent rights are broader in scope.

274Both aboriginal and inherent rights are rooted in indigenous culture, the connection to their traditional lands, and their traditions including, but not limited to, legal traditions. Both are inextricably linked to the fact that the person or group asserting the right are indigenous. Inherent rights recognize and protect the indigenous person’s right to identify as indigenous, to pursue and practice his or her traditions and culture, and to live as an indigenous person. That includes the right to self-determination within the bounds of the Canadian constitution and laws.

275Does the impugned federal legislation infringe upon the Applicants’ inherent rights as indigenous persons?

276I find that the legislation does not infringe their inherent rights as indigenous persons because:

1. There is nothing inherently indigenous in the retail sale or trade of cannabis.
2. Cannabis is not a plant native to Canada. It is not a plant essential to the history and culture of the indigenous groups (First Nations) to which the Applicants belong. Certainly, the evidence fails to establish such a link.
3. Selling or trading in cannabis is not an aspect of indigenous identity.
4. There is no persuasive evidence that requiring the Applicants to hold a licence for the sale of cannabis undermines their indigeneity.
5. The right to self-determination as an indigenous person does not give carte blanche to engage in any activity imaginable simply because it occurs on reserve.
6. Requiring a licence to engage in a specific economic activity, particularly one where public safety is a paramount concern, does not meaningfully restrict or impede economic development.

277I conclude that the Applicants have failed to prove any breach of their inherent rights as indigenous persons by the federal Cannabis Act.

Conclusion

278For the reasons above, the Applicants’ constitutional challenge is dismissed. The matter is remitted to the next Assignment Court to schedule a date to return before Thomas J.