Update Part I: Attorney General of Quebec Appeals trailblazing R v Montour and White decision

Recap of the Quebec Superior Court case & hot button issues

On November 1, 2023, the Quebec Superior Court released its decision in the groundbreaking Aboriginal and Treaty rights case of R v Montour and White (2023 QCSC 4154). As covered in depth within a previous blog post, this novel judgment received broad praise from many Indigenous peoples, allies, and advocates for its novel and welcome developments in rendering Canadian common law more consistent with the Indigenous right to self-determination recognized in—though certainly not created by—the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”).

In this blog we provide a recap of the decision and further elaborate on the decision’s hot-button issues to keep an eye on as this case moves through the courts.


Derek White and Hunter Montour (the accused) are members of the Mohawks of Kahnawà:ke who were charged with various criminal offences relating to the import of tobacco in contravention of Canada’s Excise Act, 2001. In response to the charges, Montour and White mounted an Aboriginal rights defense, arguing that the Covenant Chain of Friendship and numerous other treaties formed between the Crown and Haudenosaunee Confederacy provided for an Aboriginal and Treaty right to trade, including in the trade of tobacco.

First engaging in a Treaty analysis pursuant to Canadian Aboriginal law jurisprudence, Justice Sophie Bourque found that the Covenant Chain of Friendship originally established between the Haudenosaunee Nations and the Crown is a non-extinguished oral meta-Treaty made in accordance with Haudenosaunee law and protected by s. 35(1) of the Constitution Act, 1982. Importantly, the Court also found that the Covenant Chain establishes a procedural promise to utilize Treaty Councils as the dominant form of conflict resolution when issues arise between the two parties.

Next, and towards determining the existence of an Aboriginal right to trade in tobacco, the Court took note of the Quebec Court of Appeal’s holding in the Bill C-92 Reference decision[1] that Canada’s domestic law must conform with its internationally ratified instruments. Being that Canada had previously enacted UNDRIP into its domestic law via the United Nations Declaration on the Rights of Indigenous Peoples Act (SC 2021, c 14), the Court turned to the presumption of conformity towards the dated Section 35(1) test for Aboriginal rights. Thereby provided with an impetus to reassess the extant test for Aboriginal rights, the Superior Court ultimately found the test inconsistent with UNDRIP and thus saw fit to break with decades of common law tradition dating back to the 1996 Supreme Court cases of Van der Peet[2] and Pamajewon.[3]

Long maligned for its paternalistic and “frozen” picture of Indigenous cultures and legal traditions,[4] the Van der Peet “integral to distinctive culture” test for Aboriginal rights requires Canadian courts to limit the judicial consideration of Aboriginal rights to specific practices grounded in pre-contact activities. By way of contrast, the Quebec Superior Court’s novel formulation of a new s. 35(1) test is in much greater alignment with Indigenous peoples’ inherent right to self-determination and modern understandings of Canada’s reconciliation imperative. Under the new test proposed by Justice Bourque, courts would instead focus on whether and how Indigenous legal systems support collective practices that can be viewed as Aboriginal rights under Canadian law.[5]

Ultimately accounting for written Treaty records, oral history, and the Treaty understandings of both the Crown and the Haudenosaunee Confederacy, the Court applied its novel s. 35(1) test towards the conclusion that (among other things) Kahnawà:ke Mohawks hold a general Aboriginal right to freely pursue economic development and that this right protects the more specific practice of tobacco trading. As such, the criminal charges against White and Montour were permanently stayed.

Hot-button Issues

More specifically, there are several notable hot-button issues to keep an eye on going forward, many of which may be of interest to Indigenous Nations, communities, and representative groups seeking to intervene in the upcoming appeal. Herein we set out our take on hot button issues as they pertain to the Attorney General of Quebec’s notice of appeal of the trial decision. Check out Part II of this blog for more details on the grounds of appeal.

The Role of UNDRIP in Canadian domestic law

In complaining that the Trial Court misinterpreted the role of the UN Declaration in Canadian domestic law, the grounds of appeal pick up the thread of an ongoing debate with respect to the meaning of UNDRIP in Canada. In particular, it remains an open question whether UNDRIP merely serves as an interpretive aid or as a more substantial tool in the project of rendering Canadian laws consistent with principles of Indigenous self-determination and other internationally recognized rights. Notably, the Supreme Court of Canada recently provided its most direct guidance to date with respect to UNDRIP within its Bill C-92 Reference decision[6] by remarking in obiter that UNDRIP “has been incorporated into the country’s positive law.”[7] In further utilizing a number of UNDRIP’s articles in the rendering of its reference decision, the Supreme Court’s ruling is likely to prove helpful towards impressing upon other courts and adjudicative bodies the importance of UNDRIP in settling disputes related to Indigenous peoples and the state. As recently noted elsewhere, it remains to be seen what will happen when an Indigenous group challenges Canada’s UNDRIP statute, the United Nations Declaration on the Rights of Indigenous Peoples Act (“UNDA”),  based on its inconsistency with UNDRIP, or how exactly s. 35 Aboriginal rights will be impacted.[8] Both of these questions reverberate within the case of Montour and White. Barring a more substantial intervention by the Supreme Court in the meantime, it will likely be left to appellate level courts such as the Quebec Court of Appeal to clearly elaborate upon the role of UNDRIP in recognizing section 35 rights in Canada.

The future of the Van der Peet test

Likely incidental to questions regarding the role of UNDRIP (addressed in the immediately above), another issue relates to how the dated Van der Peet test for Aboriginal rights will be handled by appellate level courts going forward. Similar in many respects to the dissenting opinions of Justices McLachlin (as she was then) and L’Heureux-Dube in Van der Peet, critics have long asserted that the existing test unjustifiably narrows the extent of Aboriginal rights and provides too much leeway for the Crown to extinguish them. Moreover, as broader societal views inch closer to the long-held understandings of Indigenous Peoples, the test is increasingly viewed as overtly colonial, assimilative, and unaligned with modern understandings of reconciliation or the Indigenous right to self-determination. Being that the modern Supreme Court has broken with stare decisis and overruled itself on a number of occasions, including in the cases of Bedford,[9] and Carter,[10] similar revisions to Aboriginal law jurisprudence are no longer unthinkable towards reaching better alignment with contemporary societal understandings, mores, and federal policies. Any such revision could potentially be a watershed moment for Aboriginal law in Canada, and as such the Montour and White decision, for better or for worse, will be one to keep a close eye on.

The extension of the Covenant Chain of Friendship

Justice Bourque’s finding that the Covenant Chain of Friendship exists as an enforceable treaty is another groundbreaking conclusion to keep in mind going forward. Despite Montour and White’s focus on the Treaty in the context of Haudenosaunee-Crown relations, the Covenant Chain relationship had also been extended to and relied upon by other Indigenous peoples of the “Western Alliance” pursuant to the 1764 Treaty of Niagara,[11] including at least the Anishinaabe and Huron-Wendat Nations. Being that the Covenant Chain holds a sacred place in the understandings of many First Nations with respect to their ongoing relationships and treaty rights within Canada, the Court of Appeal’s findings with respect to the Covenant Chain may set the stage for further profound implications in the coming years.

Procedural Treaty Rights and Treaty Councils

Another notable aspect of Justice Bourque’s decision in Montour and White relates to the finding that procedural treaty rights may constitute existing Treaty promises just as much as the more-familiar treaty promises—typically viewed as “substantive” promises—relating to preservation of Indigenous ways of life (e.g., harvesting rights). As such, the future of this decision may hold important implications for the recognition of rights that have long been asserted by First Nations, such as Treaty Councils in Treaty #3,[12] or other dispute resolution mechanisms germane to agreements and relationships formed between Indigenous parties and the Crown.

In Part II of our Montour and White update, we turn to consider the grounds of appeal put forth by Quebec as well as some of the implications the appeal holds for Indigenous peoples.


[1] 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, 2022 QCCA 185

[2] R v Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 SCR 507.

[3] R v Pamajewon, 1996 CanLII 161 (SCC), [1996] 2 SCR 821.

[4] John Borrows, “Frozen Rights in Canada: Constitutional Interpretation and the Trickster” (1997) 22:1 American Indian L Rev 37.

[5] In short, the test from Montour and White involves: (1) identifying the collective right invoked; (2) proving that the right is protected by the collective’s Indigenous legal system, and; (3) showing that the activity or practice in question is an exercise of the collective right.

[6] Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII). [C-92 Reference]

[7] Ibid, para 4.

[8] Nigel Bankes and Robert Hamilton, “What Did the Court Mean When It Said that UNDRIP “has been incorporated into the country’s positive law”? Appellate Guidance or Rhetorical Flourish?” (28 February 2024) University of Calgary Faculty of Law Blog, online: <https://ablawg.ca/2024/02/28/what-did-the-court-mean-when-it-said-that-undrip-has-been-incorporated-into-the-countrys-positive-law-appellate-guidance-or-rhetorical-flourish/>

[9] Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101.

[10] Carter v Canada (Attorney General), 2015 SCC 5 (CanLII), [2015] 1 SCR 331.

[11] See: John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government” in Michael Asch ed, Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (Vancouver: UBC Press, 1997); Alan Theodore Ojiig Corbiere, Anishinaabe Treaty-Making in the 18th-and-19th-Century Northern Great Lakes: From Shared Meanings to Epistemological Chasms [PHD Dissertation], online: <https://hdl.handle.net/10315/37402>.

[12] For more information on Treaty Councils see Sara Mainville, “Treaty Councils and Mutual Reconciliation Under Section 35” (2007) 6:1 Indigenous L J 141, online: <https://tspace.library.utoronto.ca/bitstream/1807/17128/1/ILJ-6.1-Mainville.pdf >