First Nations’ Rights Relating to Psychedelics
North America’s psychedelic community is deeply interested in Indigenous rights and related matters, including increasing Indigenous representation in the nascent legal psychedelics industry.
While various cultural and political reasons likely explain this, one foundational reason may be that numerous popular psychedelic substances (including psilocybin mushrooms, ayahuasca, and iboga) were used for centuries, even millenia, by Indigenous peoples. Especially, but not exclusively, those of South America.
Many medical and psychedelic community members also believe that Indigenous cultures preserve valuable wisdom and knowledge regarding the beneficial use of psychedelics. This belief is supported most obviously by the popularity of ayahuasca ceremonies, and the epiphanic testimonials of those who’ve experienced such ceremonies.
Peyote and the Native American Church
Canada’s Indigenous peoples have not historically used or valued psychedelics to the same extent as Indigenous peoples situated further south. That is not to say, though, that Canadian Indigenous groups have no historical relationship with psychedelic substances.
The Native American Church (NAC), which originated in the US, has chapters in Canada that engage in peyote ceremonies. These ceremonies - sometimes misconstrued by local communities and media in Western Canada as scandalous, even satanic events - became a flashpoint in relations between Indigenous peoples and the Canadian federal government in the 1950s, and tested the legal and political interpretation of the federal Indian Act of 1951.
Ultimately, the Canadian government made no formal laws regarding peyote, thereby permitting its use in NAC ceremonies (if NAC chapters could manage to get it, since the government also didn’t change the law at that time to allow its importation). And because of peyote’s association with such ceremonies, peyote has specifically been legally exempted from Canadian criminal drug legislation, notwithstanding the criminalized status of peyote’s active psychedelic agent, mescaline.
Cannabis Regulation by Native Authorities
Several key issues between Indigenous groups and the federal government remain unresolved in relation to the Cannabis Act.
The Cannabis Act establishes certain foundational regulatory standards applicable throughout all jurisdictions in Canada, including those governed by First Nations, Metis, and Inuit governments. Like provinces and territories, Indigenous governments have power to establish certain rules applicable to cannabis-related activities provided they do come into conflict with the Act and provincial/territorial law.
The federal government discussed its engagement with Indigenous groups interested in exercising greater authority over cannabis-related activities in jurisdictions under their control in a report, and in June 2021, Health Canada reached the first mutually beneficial arrangement with the Mohawk Council of Kahnawà:ke supporting “a cooperative application of federal and local cannabis frameworks.”
However, some Indigenous groups claim jurisdiction to regulate cannabis on reserves by asserting inherent jurisdiction, negotiating agreements with the provinces, or through delegated powers under the Indian Act or First Nations Lands Management Act.
In R. v. Plain, 2026 ONSC 63, the Ontario Superior Court rejected a constitutional challenge brought by members of the Aamjiwnaang and Kettle and Stony Point First Nations who operated unlicensed cannabis dispensaries on reserve. The applicants argued that their Aboriginal rights, treaty rights, and rights recognized under the United Nations Declaration on the Rights of Indigenous Peoples Act protected a right to trade cannabis without provincial licences. Justice Raikes accepted that the Anishinaabe historically engaged in extensive trade and that trade was an integral aspect of their society, but held that the evidence did not establish any historic practice of cultivating, using, or trading cannabis, nor a protected Aboriginal right to trade medicinal plants generally. The Court also declined to follow the Quebec Superior Court’s decision in R. v. Montour (pertaining to tobacco), holding that it remained bound by the Supreme Court of Canada’s Van der Peet framework for assessing Aboriginal rights. As a result, the constitutional challenge failed, and the federal Cannabis Act licensing and prohibition provisions remained fully applicable to the applicants, including on reserve.