Quebec Superior Court relies on UNDRIP to prescribe new section 35(1) test in R v White and Montour

On November 1, 2023 the Quebec Superior Court released its R v Montour decision (2023 QCSC 4154) in which it recasts the section 35(1) test for Aboriginal rights in Canada.
In this post we summarize the case and highlight the following two key reasons why this case is one to watch: (1) the trial judge’s interpretation and application of UNDRIP to the section 35(1) Aboriginal rights test; and (2) the development and application of a new section 35(1) test.

Case Summary

Derek White and Hunter Montour are members of the Mohawks of Kahnawà:ke; the Mohawk Nation is one of the six Haudenosaunee Nations. White and Montour were charged in 2016 with various criminal offences for importing tobacco into Canada from the United States without paying taxes on the tobacco as required by Canada’s Excise Act, 2001 (the “Act”).

White and Montour mounted an Aboriginal rights defence to the charges, asserting an Aboriginal right to trade in tobacco and a treaty right to trade as provided for in the Covenant Chain and ten treaties entered into between the Haudenosaunee and British from 1664 to 1760. They argued that the Act unconstitutionally infringed their right to trade in tobacco and that the Crown acted dishonourably and contrary to the Covenant Chain treaty relationship when it imposed taxes on tobacco imports without first consulting with the Haudenosaunee on legislating a tax on the trade.

The Court held that the Covenant Chain is a treaty establishing mutually binding obligations and responsibilities through the peace and friendship alliances and that the treaty relationship includes the councils of the Covenant Chain as a conflict-resolution process. The Court relied on oral history and surrounding written records to make its determination, acknowledging that the treaty relationship, including treaty processes, is predominantly unwritten. The Court concluded that the regulation of the tobacco trade comes within, and is protected by, the Covenant Chain.

The Court also found an Aboriginal right to freely determine and pursue economic development and that White and Montour’s participation in the Mohawks of Kahnawà:ke’s tobacco industry is protected by the Mohawk’s collective Aboriginal right to freely pursue economic development. In making this finding, the Court adopted a new s. 35(1) test. The Court found the Act’s infringement of White and Montour’s Aboriginal and treaty rights to be unjustified and stayed the charges as a result.

The novel findings of the Court, departing from precedent and the established s. 35(1) test, are likely to be challenged on appeal. While this decision is not binding outside the province of Quebec, depending on how any appeals progress, this case may become a significant appellate level authority.

(1) UNDRIP’s Role in the Common Law

The Court relied on 2007 adoption of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) by the General Assembly of the United Nations, and on Canada’s enactment of domestic implementing legislation, the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (“UNDA”) in 2021, as reason to revisit the common law’s approach to recognizing s. 35 Aboriginal and treaty rights.

The Supreme Court of Canada’s s. 35(1) Aboriginal rights test pre-dates both the Geneal Assembly’s adoption of UNDRIP and UNDA’s entering into force in Canada. The Court acknowledged, and rightly so, that the present s. 35 Aboriginal rights test does not align with UNDRIP; nor does the test align with UNDA’s intent to achieve the objectives of UNDRIP in Canada which requires, in part, that Canada take all measures necessary to make its laws consistent with UNDRIP.

The Court adopted the presumption of conformity approach utilized by courts when considering international treaties for the purpose of Charter rights interpretation, finding that UNDRIP has the “weight of a binding international instrument” (para 1194). The presumption of conformity provides that constitutional Charter rights in Canada – such as the section 15 Charter right to equality and section 7 Charter right to life, liberty, and security of the person – ought to be interpreted by the courts as providing at minimum the same level of protection as the international human rights guarantees Canada has ratified. In applying the presumption of conformity to UNDRIP, the Court follows the Quebec Court of Appeal’s application of UNDRIP in the Bill C-92 reference (Renvoi a la Cour d’appel du Quebec relative a la Loi concernant les enfants, les jeunes et les families des Premieres Nations, des Inuits et des Metis, 2022 QCCA 185, leave to appeal to SCC granted), where the Court of Appeal articulated that although UNDRIP is non-binding, it has “been implemented as part of the federal normative order” through UNDA. The Court of Appeal’s Bill C-92 decision is currently under appeal at the Supreme Court of Canada (“SCC”) with a decision expected shortly from the SCC. The SCC may settle the approach to the interpretation and application of UNDRIP and UNDA in its Bill C-92 decision; such guidance will be welcome.

(2) A New Section 35(1) Aboriginal Rights and Title Test

The Court used UNDRIP to reject the Van der Peet s. 35(1) Aboriginal rights test. The three-part test is reframed as follows:

Van der Peet Test (As recently summarized in R v Desautel, 2021 SCC 17, para 51)

1. Characterize the right claimed in light of the pleadings and evidence.
2. Determine whether the claimant has proven that a relevant pre-contact practice, tradition or custom existed and was integral to the distinctive culture of the pre-contact society.
3. Determined whether the claimed modern right is “demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice”.

White and Montour Test

1. Identify the collective right invoked.
2. Prove that the right is protected by the collective’s Indigenous legal system.
3. Show that the activity or practice in question is an exercise of the collective right.

This new formulation of the test is a welcome shift that better aligns Canada’s common law with UNDRIP. The Court’s reframing intends to better recognize and protect generic Indigenous rights grounded in Indigenous legal systems instead of limiting Aboriginal rights to specific pre-contact practices, traditions, or customs. The Court makes this move by recognizing the collective right as the generic right to freely determine and pursue economic development. In so concluding, the court cites to the Court of Appeal’s framing of the generic right to self-government in relation to child and family services in the Bill C-92 reference, which as highlighted by the Court of Appeal, aligns with UNDRIP’s protection of the right to autonomy or self-government in matters relating to their internal and local affairs (article 4 of UNDRIP). The movement of the Court in Montour and the Court of Appeal in the Bill C-92 reference towards recognition of generic rights is a fundamental step forward in the case law as generic rights to self-govern and to freely pursue economic development, for example, go to Indigenous governance and legal systems and, fundamentally, the exercise of Indigenous jurisdiction over such matters.

The s. 35(1) test is likely to develop as appellate courts grapple with trial court pronouncements, such as the holding in Montour, on how to reconcile UNDRIP and UNDRIP implementing legislation with the common law. New formulations of the test will bring to the fore important questions – such as the nature of evidence going to Indigenous legal systems and the competence of Canadian courts to decide on the existence of a collective right within Indigenous legal systems.

JFK Law is following this case closely and may update this blog in the future.