*This
article was originally published in Lawyer's Daily on April 4, 2018
Prime
Minister Justin Trudeau claims that there is no more important relationship
than the one with Indigenous peoples and committed to a renewed nation to
nation relationship based on respect for Indigenous rights. To this end,
Trudeau made many promises to First Nations, including a commitment to review
and repeal all of the laws imposed on First Nations by the former Conservative
government led by Stephen Harper.
This
is a significant commitment from the Liberal government, as Harper passed
numerous laws impacting Indigenous rights — without complying with the legal
duty to consult, accommodate and obtain the consent of First Nations. Laws
related to drinking water, elections, financial transparency, matrimonial
property, land surrenders and the removal of protections for lakes and rivers
were passed in spite of strong opposition by First Nations. One bill which
attracted a great deal of resistance was Bill
C-10 An Act to amend the Criminal Code (trafficking in contraband tobacco).
Bill C-10 created the new
offence of trafficking in contraband tobacco and also prescribed minimum prison
terms for repeat offenders. The RCMP defines contraband or illicit tobacco as
including product “unlawfully manufactured in Canada, mainly on First Nations
reserves and territories.” Yet, it is only unlawful to the extent that the
federal government has made it unlawful.
Current
laws completely ignore the inherent, Aboriginal and treaty right of Indigenous
nations to engage in their traditional economies. Not only do Indigenous
nations have a right to trade in tobacco with other Indigenous nations, but
they have a right to trade with settlers as well. Part of the traditional
practice of trading in tobacco was trading with Europeans — which is in fact
how Europeans came to enjoy tobacco today.
Indigenous
nations in North and South America have been growing, manufacturing and trading
tobacco for thousands of years. Some anthropological estimates put the growth
and use of tobacco as a crop by Indigenous peoples as early as 5000 BC.
Indigenous peoples manufactured the tobacco plant for use in ceremonies, sacred
rites and rituals, and it is still used in ceremonies today. Tobacco is often
gifted to elders to perform ceremonies or exchanged between First Nations as
part of cultural protocols, for example. Tobacco was also traditionally
manufactured for snuffing, chewing and smoking as well as medicinal purposes
and was even used as insect repellent. By comparison, European settlers did not
start growing, using or trading in tobacco until very recently — in the last
several hundred years — and only because Indigenous nations introduced it to
them. If there is one economy that should be exclusively managed, controlled
and legislated by First Nations — it is the tobacco trade.
The
Indigenous tobacco trade is an essential part of the traditional and modern
cultural practices and economies of many Indigenous nations in what is now
known as Canada and the United States. They have managed, protected and
benefited from the many natural resources within their traditional territories
since time immemorial — including tobacco. Today, the inherent, Aboriginal and
treaty rights of Indigenous nations to engage in traditional practices, such as
the growth, manufacture and trade in tobacco, are governed by traditional and
modern Indigenous laws and regulations. These practices are also protected in
s. 35 of Canada’s Constitution Act, 1982
which specifically protects Aboriginal and treaty rights — including
pre-contact practices that were integral to Indigenous cultures.
The
United Nations Declaration on the Rights
of Indigenous Peoples (UNDRIP)
provides that Indigenous nations have the right to self-determination which
includes the right to freely pursue their economic development (article 3); the
right to be secure in their own means of subsistence and engage freely in all
traditional and economic activity (article 20); and the right to benefit from
their own lands and natural resources in their territories (article 25). While
the United Nations considers these standards to represent the minimum standards
for the “dignity, survival and well-being” of Indigenous peoples, Trudeau’s
government has also committed to implementing UNDRIP into domestic law. At a minimum, the current government
should exempt First Nations from these unconstitutional and human
rights-infringing laws which criminalize the Indigenous tobacco trade.
Article
III of the Jay Treaty of 1794
recognized the trading practices of Indigenous nations north and south of the
imposed border and confirmed that their rights to live and pass freely over the
border would continue to be protected and included an exemption from customs,
duties and other fees. In fact, a report of the Special Parliamentary Committee
on Indian Self-Government (known as the Penner Report) specifically recommended
that Article III of the Jay Treaty be
specifically implemented into legislation. Instead, Canada has continued to
deny Indigenous nations their long held rights to trade over the border.
The
problem is less about Indigenous criminality and more about colonial control of
Indigenous practices for the benefit of non-Indigenous governments and
corporations. In other words, the crime of contraband tobacco was created to
disentitle Indigenous nations from engaging in their own tobacco trade. Not
unlike what federal and provincial governments did with hunting and fishing.
Characterizing
Indigenous peoples who engage in the tobacco trade as gangs, criminals or
members of organized crime is racist, factually wrong and is itself a form of
hate crime insofar as it paints all Indigenous peoples in the trade as criminals
and dangerous. Indigenous nations have just as much right to provide food,
clothing and shelter for their families as anyone else, including Canadian
businesses, like convenience store owners - who do not have constitutionally
protected rights to engage in the tobacco trade.
The
racist backlash experienced by First Nations from being characterized as
criminals stems directly from federal and provincial laws, policies, and
enforcement measures which appear to target First Nations. Canada can’t have it
both ways — they can’t complain about the cost of First Nation poverty and
continually criminalize all our means of subsistence. This focus on contraband
tobacco appears to be less about addressing organized crime and more about who
gets to profit from the tobacco trade.
*Link
to the article that was originally published in Lawyer's Daily on April 4, 2018
