Friday, November 3, 2023
Written by: Krista Nerland
On November 1, 2023, an important aboriginal and treaty rights case was released by the Quebec Superior Court, R. v. Montour and White. Montour attempts to address some critical flaws in the jurisprudence interpreting section 35 of the Constitution Act, 1982. It has the potential to push the law governing Aboriginal and Treaty rights under section 35 in a new and better direction.
The decision is 440 pages long (!), so this blog post is intended as a quick first look. OKT will be providing a more detailed analysis of this case and its potential implications in the weeks ahead.
As you read this, keep in mind that this is a decision of the Quebec Superior Court, which means it won’t be binding on other courts in other provinces or in the territories. There is also a good chance that either Canada or Quebec will appeal this decision because it creates new law. Still, we hope that some of the promising ideas in this judgment will be upheld if there is an appeal and picked up for their persuasive value by judges in other jurisdictions.
What are the facts of the case?
Two members of the Mohawks of Kahnawà:ke were charged with a series of offences related to a scheme to import large quantities of tobacco without paying duties.
The accused people made three main arguments:
- Ten treaties negotiated between 1664 and 1760, together with and as part of the larger Covenant Chain treaty relationship between the Haudenosaunee and the British, guaranteed their rights to trade in tobacco and to discuss any related issues to the tobacco trade with the Crown.
- They had an Aboriginal right to trade in tobacco.
- The Crown breached its Honour and the Covenant Chain relationship when it failed to consult and negotiate with them in good faith before legislating duties on importing tobacco.
What did the Court decide?
The Court held that:
- The Crown infringed its obligations under the Covenant Chain Treaty by failing to discuss regulation of the tobacco trade with the Mohawks of Kahnawà:ke before adopting the Excise Act, 2001.
- The Mohawks of Kahnawà:ke had an Aboriginal right to freely pursue economic development, which included the right to trade in tobacco as the accused did. The Excise Act, 2001 infringed this right.
- These infringements could not be justified.
Four reasons why this case is important:
1. It says UNDRIP is a binding human rights instrument which should serve as a “floor” for judges interpreting section 35 rights
Since Canada signed into the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), Indigenous peoples have been fighting to get Canadian judges to recognize its importance and apply it in cases that deal with Aboriginal rights.
So far, with some exceptions. Courts have usually said that UNDRIP is not binding and have ignored or minimized its legal effect.
The Court in Montour held that UNDRIP is binding international law. And because it is a binding international human rights instrument, the Court also said section 35 should provide at least the level of protection for Indigenous rights as set out in UNDRIP. Right now, our section 35 jurisprudence in Canada falls far short of this mark.
2. It sets out a new test for Aboriginal rights under section 35 rooted in Indigenous law
The Court in Montour said it was not appropriate to follow the old test for Aboriginal rights set out in R v Van der Peet because it did not meet the standards set by UNDRIP.
The Van der Peet test says that to establish an Aboriginal right protected under section 35, Indigenous peoples need to show that the activity they want to protect is an element of a “practice, custom or tradition that was integral to [their] distinctive culture” prior to the time they came into contact with Europeans.¹ This test has been widely criticized because it stereotypes Indigenous peoples, and treats Indigenous customs and laws as if they are relics of the past. It makes Aboriginal rights about protecting historic practices (like hunting and fishing), rather than about protecting space for Indigenous peoples to continue to exist as distinct peoples with their own laws, social and political systems, and ways of life.
The Court in Montour attempts to chart a new course that addresses these criticisms and is more consistent with UNDRIP. Picking up on elements from Chief Justice McLachlin’s dissent in Van der Peet, the Court said that the test for whether an exercise of a right is protected by section 35 should have three components:
- Identification of the collective right that the Applicant invokes;
- Then, the Applicant will have to prove that this right is protected by his or her traditional legal system; and
- Finally, the Applicant will have to show that the practice or activity in question is an exercise of that right.
The Court also abandoned Van der Peet’s baffling reliance on contact with Europeans as the “magic moment” for determining what section 35 rights an Indigenous Nation holds. Frankly, this has always been both racist and incoherent. Under the approach proposed in Montour, it will be enough to show that the asserted right is part of the traditional legal system of the community.
3. It says that Indigenous Nations have a generic right to freely pursue economic development
The Court held that Mohawks of Kahnawà:ke have a right to freely pursue economic development, noting that there was evidence that such a right was protected under Haudenosaunee law.
However, the Court went even further. It said that in fact, the right to freely pursue economic development is a “generic right” – a right that all Indigenous Nations have, and which has the same basic contours for all of them because of their fundamentally universal nature. The Court said the right to freely pursue economic development is intimately tied to the survival and dignity of any Nation. Without it, Indigenous societies would be not only deprived of the opportunity to flourish, but also threatened with the inability to meet their basic needs.
This is also novel. The traditional approach following Van der Peet has been to insist that section 35 protects only practices and customs that are specific to a particular Indigenous group, rather than broader powers or rights that all Indigenous Nations share in common.
There are some indications that the law on this might be changing. Aboriginal title is a generic right– in the sense that it offers the same basic protections to all Nations who can establish it – and it is well entrenched in Canadian law after Delgamuukw. In Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, the Quebec Court of Appeal found all Indigenous peoples shared a generic right to self-govern in the area of child and family services. Their decision was appealed to the Supreme Court of Canada, who is expected to release its decision very soon. And, now we have Montour, which tells us Indigenous peoples have a generic right to freely participate in economic development.
This is significant because these “generic” rights tend to go to jurisdiction – over land, over people, over a way of life – rather than to individual activities or practices. Broader recognition of these rights under section 35 would be a positive development.
4. It says the Covenant Chain is a binding treaty, and it obligates the Crown to meet in council with the Haudenosaunee to resolve key issues in the relationship
Finally, the Court found that the Covenant Chain relationship is a binding treaty protected under section 35 of the Constitution Act, 1982.
The Covenant Chain is an alliance of peace and friendship between the British and the Haudenosaunee, which was built and maintained pursuant to Haudenosaunee protocol. Under the Covenant Chain, the British Crown and the Haudenosaunee held regular councils to resolve conflict, discuss issues that arose and kept the relationship strong. Based on this history, the Court held that the Covenant Chain included a conflict resolution procedure that the Crown was now required to follow when dealing with aspects of the Covenant Chain relationship, like trade.
The Crown breached this part of the Covenant Chain when it failed to bring the issue of tobacco regulation to the council sessions mandated by the Covenant Chain.
The Court came to this conclusion even though there was no specific discussion of tobacco trade during the Covenant Chain councils of the 17th and 18th centuries. The Court said that the Covenant Chain was intended to create a lasting relationship of friendship and peace that would flourish through the development of trade. It would be contrary to this intention to limit the parties to discuss only those products that were exchanged in the 17th and 18th centuries.
This part of the decision is notable because it relies so heavily on Haudenosaunee diplomatic protocol, and the Crown participation in that protocol, to interpret what the Treaty means. It also requires the Crown to act in a way that would maintain and uphold the relationship the parties built together – including by meeting with the Haudenosaunee before passing laws that could affect the Covenant Chain relationship. This is a departure from the more transactional view of treaties that Canadian Courts often adopt.
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