It's business as usual for this Mohawk First Nation's marijuana stores while court challenges planned

Mohawk cannabis retailers in Ontario are eyeing court action to challenge federal and provincial control over marijuana.

Tyendinaga Mohawk Police Chief says no action against pot shops still open after Wednesday

Seaira Maracle, 28, pours a cannabis salve based on a traditional recipe for arthritis into containers for sale. She is an alchemist at Legacy 420 at Tyendinaga, Ont. (CBC)

In one of the production rooms of Legacy 420, the first marijuana retail outlet to open in the Mohawk community of Tyendinaga, Seaira Maracle, 28, brews a cannabis ointment based on a traditional recipe for arthritis.

She scoops the substance from a stainless steel double-boiler and pours it into glass jars.

"I learned it from my Elders, from my grandfathers," said Maracle, whose job title is alchemist.

The Legacy 420 facility also includes a kitchen and a laboratory where everyone wears white lab coats and features a massive glass contraptions for extracting oil from cannabis.

And, like more than 31 marijuana stores operating throughout this community, which sits about 200 km east of Toronto, it will keep its doors open, selling the ointment along with more than 60 cannabis products, after the new federal and provincial laws come into force Wednesday.

Jason Brant is the chief of the Tyendinaga Mohawk Police. (CBC)

Tyendinaga Mohawk Police Chief Jason Brant said his officers won't be moving on any of the cannabis stores.

"We are still looking for direction from the legislative body here on the territory," said Brant.

Brant said his force's resources are limited, putting any thought of a cannabis enforcement operation out of the question for now in a territory that bristles at the presence of the Ontario Provincial Police.

The Tyendinaga police have a total of seven officers and one works per shift, he said.

"To do something of this magnitude — we can't do it with this many people, if in fact we were going to do it at all," said Brant.

Ontario delay presents opportunity

For Tim Barnhart, owner of Legacy 420, Ontario's decision to delay licensing private cannabis shops until April 2019 presents a lucrative opportunity for business in Tyendinaga.

"We are not fools, we see a trend and a lucrative market we can utilize for the next six to 12 months," he said.

"We are going to take that."

Barnhart employs about 43 people with a payroll of $3.7 million. He said his operations generate about $20 million in revenue a year.

Tim Barnhart, owner of Legacy 420, plans to keep operating after Oct. 17. (CBC)

Barnhart said that his operation meets all the aims of the federal law, including age restrictions, product quality control, a closed production and retail loop to keep out organized crime along with a high level of security.

If his compound, which is ringed by metal fencing topped with barbed-wire, is ever raided, he plans to open up the next day and launch a constitutional challenge.

"We have been assured by lawyers that we are constitutionally sound," said Barnhart.

Constitutional challenge planned

Seth LeFort, a Tyendinaga member who was charged with trafficking last November after police in Six Nations, Ont., raided his dispensary there, said he is planning a constitutional challenge to Canada's new pot law as part of his case.

An officer from the Six Nations police aims an assault rifle during a Nov. 16, 2017, raid of the Mohawk Medicine herbal dispensary in Six Nations. (Submitted by Seth LeFort)

LeFort said he would have faced a fine in the thousands of dollars on a guilty plea, but he chose to launch the constitutional challenge as a matter of principle.

"The issue I am raising is we have an inherent right as Onkwehón:we [the people] to make medicine and to have an economy," said LeFort.

"We have a right to add new technology and knowledge to our medicine chest."

LeFort said he believes the new cannabis law will be a back door to charge tax on reserve through arrangements between the provinces and First Nations that want to cash in on the business.

Tyendinaga is 200 km east of Toronto, near Kingston, Ont. (Google)

"This cannabis thing is a smokescreen for the real issue, which is our land and taxation," he said.

LeFort said his Brantford, Ont., trial is scheduled for next February and the filing deadline for his constitutional challenge legal arguments is set for Nov. 2.

Ontario laws may be open to challenge

Sara Mainville, a partner with Toronto law firm Olthuis Kleer Townshend, said a court challenge of the federal law may prove futile.

Mainville said there were parallels between the new pot law and the legalization of gambling by Ottawa in the 1970s which delegated regulatory authority to the provinces.

A 1996 Supreme Court ruling involving two Ontario First Nations seeking to self-regulate gaming concluded there was no general self-governing right in Section 35 of the Constitution, which enshrined Aboriginal and treaty rights. Mainville said the court determined a First Nation needed to prove that the specific activity was regulated in some form before contact and in continuity to the present day.

Mainville believes Ontario's laws may be open to a challenge because the province gave itself the exclusive right to be the wholesaler and regulator of the cannabis industry.

"I think the province is overreaching," she said.

"It is my strong belief that provincial governments have to work with First Nations to figure out how laws could work because First Nations hold the governing authority."

Mohawks of the Bay of Quinte Chief Donald Maracle speaks with community members after a cannabis meeting Monday evening. (CBC)

Community works on its own rules

Tyendinaga's government, the Mohawks of the Bay of Quinte band council, held a community meeting Monday evening to discuss the need to pass an interim cannabis law to prevent Ontario's rules from applying on Wednesday.

Coun. Josh Hill said passing an interim band law was the best way to protect the territory until community consultations produce a final version. He said the leadership met with Ontario officials last Friday and were told the province would not be taking any drastic measures against the community for now.

"It's in everyone's best interest to try to find a solution to this by talking," said Hill.

Jamie Kunkel, the owner of Smoke Signals dispensary, said he's willing to hold his nose and work with a band developed regulatory regime if it means keeping local control of the industry.

"If it's reasonable...then I'll probably license it," said Kunkel, who has franchised out into other First Nations.

Some community members at the meeting expressed frustration with the amount of traffic and disturbances in the community — including three cases of suspected arson — they see as connected to the cannabis industry.

Mohawks of the Bay of Quinte Band councillor Josh Hill says talks are ongoing with Ontario over marijuana. (CBC)

The police said there is no evidence the three incidents have anything directly to do with the cannabis business and suggested the increased traffic may also be due to lower gas prices on the reserve.

Tammy Brant, 49, voiced her concerns during the community meeting. One of her two sons has worked at a cannabis store, but she doesn't see it as a viable career goal. While the pay, in cash, is often good, there are no benefits that come with employment like disability or employment insurance, she said.

Brant said the industry has expanded with little regard for community impact.

"We haven't been respected as a people at this point, as a community," said Brant, in an interview.

"Just those who are specifically benefiting from it right here, right now."

About the Author

Jorge Barrera

Reporter

Jorge Barrera is a Caracas-born, award-winning journalist who has worked across the country and internationally. He works for CBC's Indigenous unit based out of Ottawa. Follow him on Twitter @JorgeBarrera or email him jorge.barrera@cbc.ca.