Cannabis is emerging as a new battleground over Mi'kmaw rights

It's no mistake that Thomas Durfee calls his cannabis and cultural arts store in north-end Dartmouth, N.S., a "truckhouse," a reference to trading posts outlined in a 1752 treaty signed between a Mi'kmaw chief and the British governor of Nova Scotia.

It's that treaty that Durfee says will be central to his defence to charges laid following a January police raid on his Amu Leaf store, joining other cases where Mi'kmaw operators are claiming the right to sell marijuana outside Nova Scotia regulations that restrict its retail to a Crown corporation.

"I believe as long as we're fighting, as long as we're using wisdom and education to move forward, then they don't really have a choice but to allow us to live in prosperity, peace and friendship, and to the best of our advantages," Durfee, who is Mi'kmaq, said in an interview. "They have to uphold that treaty."

While Mi'kmaw treaty rights have long been asserted in the fisheries, most prominently in the Nova Scotia lobster industry and increasingly with lucrative baby eels, cannabis is emerging as a contentious new legal and social battleground since its legalization in 2018.

But those claiming the right to sell marijuana face significant hurdles to prove it under Supreme Court of Canada precedents that date back more than two decades, one of which has become the standard "test" in such cases.

The question is set to come to a head this summer, with a multi-day hearing scheduled in a case involving a band councillor from a central Nova Scotia First Nation.

Chris Googoo, who was recently re-elected in Millbrook First Nation, is challenging two charges he faces under the Cannabis Act related to a December 2020 RCMP search of a dispensary he runs on reserve land in Cole Harbour, N.S.

In a legal filing in the case, federal prosecutor Michael Taylor outlined a series of elements he said the Supreme Court of Canada requires a defendant to prove in order to successfully claim a treaty or Aboriginal right under Section 35 of the Canadian Constitution.

The Peace and Friendship Treaty of 1752 outlined that "said Indians shall have free liberty" to bring to sale "skins, feathers, fowl, fish or any other thing they shall have to sell."

But the Crown argues, citing the landmark 1999 Marshall decision, that to prove a treaty right, there must be evidence that the item or commodity was being traded at the time, or it was "reasonably contemplated by the parties to the treaty."

In order to prove an Aboriginal right, according to the brief, a defendant must follow the test outlined in the Supreme Court's 1996 Van der Peet decision. This means they must show that the "practice, custom or tradition" existed before European contact, that it was "integral" to a community's way of life, and that the modern right has a "reasonable degree of continuity" with the practice of the past.

In short, the case could come down to a crucial question: Did Mi'kmaw communities trade in cannabis historically? That's far from clear.

Some historians have pointed to the French apothecary Louis Hebert as the person who first planted cannabis, in the form of hemp used for clothing and rope, in Nova Scotia in the early 1600s.

But it also appears cannabis was growing wild in parts of North America when Europeans arrived, as noted by French explorer Jacques Cartier during his travels along the St. Lawrence River.