A host of legal snags awaits the regional district if it chooses to go down the road toward development permit areas to regulate the cannabis industry in rural West Kootenay, a new report warns.
Despite rural West Kootenay’s long and profitable association with the cannabis industry, the regional district government is looking at ways to regulate the green economy on the eve of the release of federal government legislation.
With numerous local governments across Canada legislating or looking to legislate ahead of the federal government’s regulation of cannabis, the regional district’s rural affairs committee needed information on what the RDCK could do to become involved in the decision making process concerning cannabis regulations.
As a result, the Regional District of Central Kootenay (RDCK) board of directors had instructed its staff to compile a report on how it could regulate the growing industry, as well as how it might move forward district-wide if it elected to do so.
Although no decision has been made on the report’s findings — it was received for discussion purposes only at the board meeting late last month — it did reveal that cannabis regulation may be a hard legislative nut to crack if regional government should choose to go down that road.
The cannabis industry is well established in the regional district, said regional district planner Darcy Roszell in the report delivered to the RDCK’s rural affairs committee and then to the board for comment, and with legalization will likely experience further growth.
“Knowledge and preparedness on the subject are a key piece in developing the industry in a suitable manner,” said Roszell.
A number of regional district electoral areas with zoning have already put in place regulations regarding cannabis production.
“Instituting development permit areas to regulate the cannabis industry was explored by staff, but this option would not be a legal option as local government cannot defacto override federal legislation,” Roszell said.
Zoning was the key for those areas that may want to regulate the industry. For areas that do not have zoning in place, Roszell said, creating development permit areas for the sole purpose of regulating producers would be considered discriminatory and may lead to legal action by the industry.
The option would only be a temporary solution, Roszell explained, since the Cannabis Act is scheduled to come into effect in 2018 and will likely make many local government regulations obsolete.
“Ultimately, the most effective method to regulate and have input on cannabis production facilities will be to use zoning,” Roszell said.
It could be the impetus for some areas to create zoning, Roszell added, since the ability to regulate cannabis facilities could generate public support for developing a zoning bylaw.
“It should be noted that, even with zoning in place, MMAR licensees cannot be regulated at the local government level as they are created and regulated by the federal government,” Roszell said.
Cannabis has been listed as a prohibited substance under the Controlled Drugs and Substances Act (CDSA) for decades, but in 2001 the tide began to turn as the consumption of cannabis for medical purposes was exempted from the CDSA through the enactment of Medical Marihuana Access Regulation (MMAR).
Twelve years later the MMAR was replaced by the Marihuana for Medical Purposes Regulation (MMPR), followed by a 2016 Federal Court of Canada ruling that the MMPR infringed on the Canadian Charter of Rights and Freedoms by prohibiting authorized users from growing medical cannabis for personal use (and allowed those with an existing or expired license under the MMAR to continue operations under an appeal).
As a result, Health Canada introduced the current regulations — which are the Access to Cannabis for Medical Purposes Regulations (ACMPR) — which replaced the MMPR. Under the new rules, medical users are allowed to produce medical cannabis for personal use, similar to regulations permitted under the MMAR which allow medical users to produce their own cannabis or designate another individual to produce it for them.
It has been reported that in some cases these producers may exceed their license by producing far more plants than permitted and selling the excess product to unauthorized users, Roszell said in the report.
The Federal Task Force on Cannabis Legalization and Regulation released a report which provides recommendations to the federal government going forward. The Task Force report has provided affected parties with an idea of how regulation may unfold, but federal direction has not gone any further to other levels of government.
Currently, producers making application within the regional district under MMPR/ACMPR are required to provide a local government approval in their application to Health Canada. A “comfort letter” is used as a form of approval by the RDCK to applicants upon request.
The next step, regardless of whether the property has zoning or not, sees the letter sent to the area director, the local fire department and the RCMP detachment having jurisdiction in the area.
To confuse the issues, the producers who are growing under licenses left over from the (now replaced) MMAR are not subject to the same notification requirements as the licensed producers under the MMPR/ACM PR.
Growers under the previous certification system are not required to notify the RCMP, local fire department or the local government under federal regulations.