What does NASCAR and tobacco have to do with s. 35 Aboriginal and Treaty rights? Turns out: a lot.
A landmark decision has outlined a new definition of Aboriginal rights that could usher in an era where Indigenous laws gain more influence in the country’s courts.
In 2016 Derek White and Hunter Montour were busted for selling tobacco in Kahnawà:ke. The Kanien’kehà:ka men faced multiple charges, including bringing tobacco from the United States into Kanien’kehà:ka (Mohawk) territory and Kahnawà:ke. White was found guilty of committing an indictable offense for the benefit of a criminal organization, conspiring to defraud the Government of Canada, and perpetrating fraud against the Government of Canada. Montour was found guilty of having participated in activities of a criminal organization.
Both men appealed their convictions.
Fast forward to November 1, 2023, the Quebec Superior Court released the R. v White et Montour decision. The court found that the Kanien’kehà:ka men had a constitutional right under section 35 to freely determine and pursue economic development. In plain language: they have the right to import and sell tobacco because their inherent rights as Indigenous People pre-date the laws of Canada.
In making this determination, the court also modified the test for determining an Aboriginal right.
That’s a seismic shift. The three part test has been consistent since the Van der Peet decision in 1996.
Operation Mygale
In March, 2016, over sixty people were arrested by the Sûreté du Québec (SQ) as part of Operation Mygale. At the time, this was the largest cross-border operation targeting contraband tobacco that the SQ had ever conducted. The majority of individuals arrested were not Kanien’kehà:ka; many chose to plead guilty to avoid trials. At the time of the operation, headlines across Canada and the US focused on the bust, alleging connections to money laundering and drug trade, and White’s ties to the NASCAR racing world.
White and Montour chose to fight the charges as Kanien’kehà:ka men who knew that they had been acting within their rights to engage in a trade Kanien’kehà:ka people had been conducting for generations, before the assertion of the Canada-US border. Or, as songwriter Pura Fe puts it, “we didn’t cross the border. The border crossed us.”
The Legal Case
The central object of this case was the need to define the Indigenous perspective on Treaties. The Mohawk Nation Council of Chiefs (MNCC) acted as intervenors, and provided evidence relating to the Kanien’kehà:ka Nation and the Haudenosaunee (Iroquois) and their culture, history, and laws. The court emphasized the importance of this evidence in their judgment and dedicated a whopping 65 pages to a summary of the evidence provided by MNCC and the importance it played in their decision. This is one example of how crucial court interventions can be, as they allow for the deep knowledge and perspectives of other Nations who’ll be impacted by decisions, and ensure a court has all the evidence required to make a ruling. This is why RAVEN has a fund dedicated to court interventions.
There were several main issues relating to Aboriginal and Treaty rights at play here :
- the right to free trade as guaranteed by the Treaties;
- the nature and role what is known as the Covenant Chain — an early alliance between Haudenosaunee and early settlers — and whether it can be considered a Treaty;
- Whether the Crown has infringed upon the Honour of the Crown and the Covenant Chain relationship by not consulting in good faith with the Kanien’kehà:ka or seeking to negotiate a resolution to the trade dispute;
- Whether there is a section35 Aboriginal right at play.
On the matter of the section 35 Aboriginal right, the lawyers for Mohawk defendants White and Montour asked the court to depart from the test arising from the Van der Peet case and offered a new framework. Typically, a court has limited options to depart from precedent on issues that have already been decided. This principle is called stare decisis.
Here’s where the case gets really interesting: and could impact how UNDRIP is applied elsewhere. In determining that the court could depart from the previous precedents in this case, the court considered the fact that UNDRIP has been adopted by Canada. The changes in the law that will be required to raise standards to accord with ‘free, prior, and informed consent’ mean that laws will need to change. In this case, we see more than the potential of UNDRIP: cases like this indicate it may well live up to its promise, to usher in a new era in Indigenous justice.
The court outlined a new test for section 35 Aboriginal rights:
“The Court concludes that the question it has to answer when faced with a notice to recognize an Aboriginal right is whether the activity or practice under consideration the exercise of is a right protected by the traditional legal system of the Indigenous peoples claiming the right. This question imposes the following three burdens on an Applicant:
- It will require first to identify the collective right that the Applicant invokes;
- Then, the Applicant will have to prove that such a right is protected by his or her traditional legal system; and
- Finally, the Applicant will have to show that the litigious practice or activity in question is an exercise of that right.”
In the case of the Kanien’kehà:ka trade in tobacco as economic development, the court ruled that this test was met. This new definition draws on Indigenous legal frameworks in a deeper way than ever before, and holds tremendous potential for the braiding of common law and Indigenous legal traditions that visionaries like John Borrows and Rebecca Johnson envision.
Impact
This decision is probably going to be appealed to the Quebec Court of Appeal, and possibly the Supreme Court of Canada (SCC). Unfortunately, until then this decision is not binding on other courts in other provinces or territories, as trial decisions are a lower level of court decision and are only binding on the same court it is made in. If this decision is appealed, the decisions made on appeal will have greater influence on the rest of the country. This means that while an appeal can be risky or seen as a negative for White and Montour, it can also ensure that this win can be shared among other Nations across Canada.
This court decision is an exciting change for a few reasons.
The new test removes Aboriginal rights from a test that has been keeping them “frozen” in time, and in which courts have taken very narrow interpretations as to what the right itself is. With this new, broader interpretation, the new test explicitly relies on Indigenous legal systems, which is a huge forward in the recognition of Indigenous legal systems in the Canadian courts.
The respect for and importance placed on Indigenous legal orders was also evident in the consideration made of Haudenosaunee laws in the decision itself.
We celebrate this decision and will be watching for — and updating you about — an appeal.
