R. v. Montour: a drastic shift in Indigenous rights jurisprudence

On November 1, the Honourable Sophie Bourque of the Superior Court of Québec handed down a decision that will have a huge impact on Indigenous law in the case of R. c. Montour. This decision marks a major paradigm shift in how the relationship between the Crown and Indigenous peoples is conceived; it has also upset Canada’s constitutional order.

Our team has put together an overview of several important matters addressed in this decision.

Overview

Mr. White and Mr. Montour, both members of the Mohawk Nation of Kahnawà:ke, (the “Accused-Applicants”) were charged under the Excise Act, 2001¹ (“EA 2001”) with failing to pay taxes on large quantities of tobacco imported from the United States and subsequently faced a jury trial.

After the jury delivered a guilty verdict against Mr. White on several charges in May 2019, the Court was required to consider a number of constitutional questions submitted previously by the Accused-Applicants that were only to be ruled on if a guilty verdict was rendered.

In support of their Notice of Constitutional Question and Motion to Stay Proceedings, the Accused-Applicants claimed that the charges and the resulting proceedings were an unjustified infringement of their constitutional rights, inherent rights and international rights. Based in particular on free trade treaties, the protection of Aboriginal rights set out in section 35 of the Constitution Act, 1982 (“CA 1982”)² and the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), the Accused-Applicants asserted the Mohawk Nation’s unextinguished free trade rights, including the right to trade tobacco tax-free, as well as the right to freely determine and pursue their economic development, encompassing the right to free trade.

They also claimed that 10 treaties negotiated between 1664 and 1760 between the Haudenosaunee³ and the British form an overarching and binding “meta-treaty” (known as the Covenant Chain) that guarantees the Mohawks’ right to trade in tobacco and to discuss any related issues with the Crown. The Accused-Applicants, therefore, requested a permanent stay of proceedings. In an unprecedented turn of events, the Court was asked to rule on a request that, if granted, had the potential to overturn a verdict delivered by a discharged jury.

After conducting an exhaustive study of the Indigenous perspective, which, in the Court’s view, was essential to understanding this case and falls within the ambit of the courts’ responsibility to take part in reconciliation with Indigenous peoples, Justice Bourque ruled in favour of the Accused-Applicants, not only on the question of rights derived from treaties, but also on that of Aboriginal rights.

Justice Bourque thus concluded that the Accused-Applicants enjoyed protected rights stemming from the treaty forming the Covenant Chain, i.e. the right to trade tobacco and the right to a conflict resolution procedure, in keeping with the Haudenosaunee legal tradition. In addition, she held that their involvement in the Kahnawà:ke commercial tobacco trade was protected by the generic Aboriginal right to freely pursue their economic development. In Justice Bourque’s view, these rights were unjustifiably infringed, in particular because the Crown did not consult the Mohawks during the drafting of the EA 2001. Upholding the arguments put forward by the Accused-Applicants, she declared s. 42 of the EA 2001 constitutionally unenforceable and inoperable with respect to the Accused-Applicants and ordered a permanent stay of proceedings against them.

Aboriginal rights

UNDRIP’s status in Canadian law

Justice Bourque’s decision provides long-awaited clarification of UNDRIP’s status in Canadian law, particularly in light of Canada’s adoption of the United Nations Declaration on the Rights of Indigenous Peoples Act (“UNDRIP Act”) in 2021. The jurisprudence remains relatively sparse with respect to the interpretative weight that UNDRIP may be accorded in Canadian law.⁴ Justice Bourque’s remarks, which came in the wake of a detailed study on the background to UNDRIP’s adoption, both nationally and internationally, are sure to spur reflection in this regard. The following considerations, in particular, are noteworthy.

Even though the presumption of compliance in the context of legislative interpretation only applies to ratified international instruments, Justice Bourque held, together with the Québec Court of Appeal in the case 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 (“Renvoi C-92”),⁵ that UNDRIP, although it imposes no obligations on Canada, remains a source of interpretation in Canadian law insofar as it is a universal international human rights instrument implemented in Canadian law by the adoption of the UNDRIP Act.

Justice Bourque added that despite the fact that UNDRIP is not a ratified treaty, it was adopted by a near-unanimous resolution of the General Assembly, the UN’s highest deliberative body; this point, in her opinion, should not be underestimated. As regards UNDRIP’s unratified status, she noted that “[t]he choice of a ‘non-binding’ instrument over a binding one might very well be ‘to garner greater state buy-in’”,⁶ citing Prof. Naiomi Mettalic, author of Breathing Life into Our Living Tree and Strengthening Our Constitutional Roots: The Promise of the United Nations Declaration on the Rights of Indigenous Peoples Act.

Lastly, the Court held that the provisions of the UNDRIP Act demonstrate that UNDRIP is an interpretive tool in Canadian law; moreover, it is tantamount to a binding international instrument because (i) the preamble states that UNDRIP is a source of interpretation in Canadian law; (ii) s. 2(3) stipulates that nothing in the UNDRIP Act should be construed as delaying UNDRIP’s application in Canadian law; and (iii) s. 4(a) stipulates that one of the purposes of the UNDRIP Act is to reaffirm that UNDRIP is a universal international human rights instrument that applies to Canadian law.

Stare decisis and the decision to depart from the Van der Peet test

Justice Bourque shook the foundations of the constitutional order by setting the Van der Peet test to one side and, after nearly 30 years, substituting a brand new set of criteria.⁷ In so doing, she departed from vertical stare decisis, which posits that a court must follow decisions made by higher courts, holding that both criteria for doing so were met, i.e. there is a new point of law, as well as a substantial modification of the situation or evidence, as described below.⁸

New point of law: In Justice Bourque’s view, Canada’s unreserved support for UNDRIP and the adoption of the UNDRIP Act raise a new point of law, i.e. whether the presumption of compliance of Canadian law with international instruments ratified by Canada applies when the scope of protection afforded in s. 35 CA 1982 is interpreted in light of the rights recognized by UNDRIP.

Substantial modification of the situation or the evidence: Justice Bourque stated that the debate’s context and parameters have been fundamentally altered since the Van der Peet decision, just as Canadian society has profoundly changed since the establishment of major commissions dealing with Indigenous peoples, including the importance of achieving genuine reconciliation. The question that must be asked when developing the test applicable under s. 35 CA 1982 is no longer, or is not merely, a matter of determining how to strike a balance between claims of Indigenous rights and Crown sovereignty, but also, and most importantly, how to reconcile the interests of sovereign nations.

In addition to marking a major change in defining the context in which Indigenous claims are made, this decision holds that reconciliation today means maintaining respectful relations between two sovereign peoples.

A new test to determine whether there is an Aboriginal right protected under s. 35 CA 1982

Justice Bourque unambiguously placed the notion of reconciliation at the centre not only of her analysis, but also of the process to develop a new test aimed at determining whether an Aboriginal right is protected under s. 35 CA 1982. Striving to address numerous criticisms of the Van der Peet test (e.g. a culture cannot be deconstructed to determine which of its elements are integral, rather than ancillary; the test attempts to crystallize Indigenous rights in a pre-colonial past and is incapable of recognizing economic or political rights in their modern form), Justice Bourque proposed the following new criteria:

1. The court must begin by identifying the collective right invoked by the Applicant;
2. The Applicant must then demonstrate that this right is protected by their traditional legal system; and
3. The Applicant must finally demonstrate that the activity or practice at issue is an exercise of the right being claimed.

It should be noted that this analysis is thus refocused on recognizing and protecting rights, rather than on specific examples of exercising those rights. It will be interesting to see how this new test is affected by case-law developments. The test put forward by Justice Bourque responds to certain criticisms of the Van der Peet test. For one thing, it is more in keeping with the spirit of the Canadian Charter of Rights and Freedoms and the judiciary’s fundamental role insofar as it emphasizes the protection of rights formulated generally, rather than specific examples of certain rights. Furthermore, it sidesteps the notion of contact with Europeans, thus eliminating the previous test’s Eurocentrism and the stereotypes that often accompanied the requirement to provide evidence of pre-contact practices.

Recognition of the right to pursue economic development as a generic Aboriginal right

The Court recognized that the practices of the Accused-Applicants were protected by the generic Aboriginal right to freely pursue their economic development. In the Court’s view, the right to economic development is a generic right by virtue of its universality and uniformity, encompassing all Indigenous peoples of Canada and intimately tied to their survival and dignity. It should be noted that as regards the application of the new test’s second criterion, Justice Bourque underlined that there is a strong presumption that a generic right is protected by the traditional legal system of the Indigenous group in question.

This is the first decision in Canada to recognize that all Indigenous peoples have a constitutionally protected right to pursue their economic development as part of their right to self-determination. As Justice Bourque pointed out, without this right, Indigenous societies would be threatened because they would be deprived of the opportunity to prosper. According to Justice Bourque, a myriad of other rights essential to the continuity of Indigenous societies in Canada also depends on a group’s ability and right to pursue its economic development, such as the right to develop an education system or the right to develop independent Indigenous media. The acknowledgment that Indigenous peoples enjoy such a right, as other people do, is also reflected in Justice Bourque’s oft-stated desire to achieve reconciliation with Indigenous peoples.

Conclusion

Unsurprisingly, given the innovative nature of this decision and how many questions have been raised within the legal community following its publication, the judgment is now being appealed.

In an upcoming bulletin, our team will consider Justice Bourque’s analysis in R. v. Montour of the treaty rights asserted by the Accused-Applicants.

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¹ SC 2002, c. 22.
² Schedule B, Canada Act, 1982 (UK) 1982, c. 11.
³ The Haudenosaunee are the great Iroquois family made up of six nations: Mohawk, Oneida, Onondaga, Cayuga, Seneca and Tuscarora.
⁴ See in particular Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, 2022 QCCA 185 (appeal as of right to the SCC, 14-03-2022, no. 40061), Westley v. Alberta, 2022 ABKB 713 and AltaLink Management Ltd. v. Alberta (Utilities Commission), 2021 ABCA 342.
⁵ Renvoi C-92, 2022 QCCA 185 (appeal as of right to the SCC, 14-03-2022, no. 40061).
⁶ 2023 QCSC 4154, para 1178.
⁷ The Van der Peet test is a three-part process used to determine: i) the exact nature of the Aboriginal right being claimed; ii) whether the applicant established the existence of the pre-contact practice, tradition or custom in question and whether it formed an integral part of the society’s distinctive culture prior to contact with Europeans; and iii) whether the contemporary right being claimed is manifestly linked to the pre-contact practice and whether it may be reasonably considered an extension thereof.
⁸ See Canada (Attorney General) v. Bedford, 2013 SCC 72, Carter v. Canada (Attorney General), 2015 SCC 5 and R. v. Comeau, 2018 SCC 15.