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

The Grounds of Appeal and their implications 

In our previous blog post we recapped the Quebec Superior Court’s trailblazing decision in the case of R v Montour and White. As widely expected, the Attorney General of Quebec has appealed the trial court’s decision, making the case of Montour and White one to keep a close eye on in 2024 and going forward. In this blog post we set out some of the grounds of appeal brought forward by Quebec as well as some of the implications this may hold for Canadian Aboriginal law in the near term.

Appeal by the Attorney General of Quebec

Though an appeal of the trial court’s decision in Montour and White was widely expected—even by Justice Bourque herself[1]—the extent of the grounds put forth by the Attorney General of Quebec may come as something of a surprise. Standing in sharp contrast to interpretations of Canada’s obligations under UNDRIP as well as its project of reconciliation with Indigenous peoples, the appeal by Quebec effectively contests the entirety of the Court’s findings over its approximately 400-page ruling.

Initially only available in French language, an English translation of Quebec’s Notice of Appeal may be found here. Among the thirteen total grounds of appeal, Quebec alleges numerous errors of law, fact, and principle. The following briefly describes some of grounds of appeal posited by Quebec (“appellants”).

First, Quebec insists that several aspects of the decision go beyond Canada’s constitutional framework.[2] These allegations include, inter alia, that:

  • the Court’s determination that the Crown must communicate[3] with certain Covenant Chain First Nations through Treaty Council before enacting laws affecting Treaty rights is unconstitutional;
  • the constitutional principle of reconciliation in s. 35 has been unduly transformed;
  • “a wide range of generic rights” have been wrongly incorporated into section 35; and
  • Indigenous (“Aboriginal”) Peoples are erroneously characterized in the decision as sovereign nations.

In no particular order, further grounds of appeal put forward by Quebec include:

  • that the Court failed to correctly apply established treaty interpretation jurisprudence and thereby erroneously concluded that the Covenant Chain of Friendship exists as an unextinguished peace and friendship treaty that includes a conflict resolution procedure (the promise of Treaty Councils);
  • that the Court committed errors of law when interpreting UNDRIP’s status in Canadian law;
  • that the Court erroneously departed from stare decisis by overturning the Van der Peet test for Aboriginal rights and erred in applying this new test to establish an Aboriginal right to economic development;
  • that owing to the Court’s erroneous overturning of the Van der Peet test, the Court erred in fact and law in its finding that the Aboriginal and Treaty rights in question were unextinguished and unjustifiably infringed upon by the Crown;
  • that the Court erroneously held that the principles of reconciliation and the honour of the Crown impose special obligations on Crown counsel and the courts themselves;

Numerous other grounds of appeal are listed, including that the Court failed to comply with the rules of procedural fairness and that the court erred in multiple instances with respect to assessing the credibility of various expert witnesses, reports, and their respective admissions or rejections. Lastly, and somewhat surprisingly, Quebec also contests the Court’s allowance of the Mohawk Nation Council of Chiefs to act as an intervenor.

What does this all mean?

The grounds of appeal put forth by Quebec amount to nothing less than a full-frontal assault on the groundbreaking ruling of the Superior Court and serve as a reminder of the staunch resistance faced by Indigenous peoples and advocates seeking to propel the laws of Canada into alignment with UNDRIP and modern societal understandings of Indigenous self-determination, legal systems and practices.

Being that the appeal essentially contests every conclusion reached by the Quebec Superior Court in R n. Montour and White, the frustration felt by many Indigenous observers and allies should not be lightly shrugged-off, especially given the historic and long-overdue recognition afforded to First Nations perspectives and laws throughout this decision. Indeed, given the lofty promises of reconciliation and respect often peddled by provincial and federal governments, such zealous advocacy on the part of Quebec might appear manifestly incompatible with a restored relationship between First Nations, Inuit, and Metis peoples on the one hand, and a Canadian state founded on the backs of Indigenous lands and resources on the other.

As noted by Mohawk scholar Taiaiake Alfred, the grounds of appeal lend to an apprehension from certain First Nations perspectives “that our treaties with the Crown are meaningless, that our peoples didn’t and don’t exist as nations, reconciliation doesn’t mean structural change; and, the only rights we have as the original peoples of this land are those the newcomers decide to give us.”[4] These are heady words that should be difficult to ignore, for as much as any action in recent history, the appeal can be interpreted as representing the forceful pushback of state interests in maintenance of a status quo ultimately favouring a dated, one-dimensional jurisprudence that predominantly supports non-Indigenous interests and perspectives despite the promise of a legally pluralistic and just society. Discouraging as this may be, it is trite to say that appeal motions made by provincial and federal governments need not represent the conclusions of the judiciary, and that what the future holds for this case at the Quebec Court of Appeal—and potentially the Supreme Court of Canada thereafter—remains to be seen.


At least within the arena of Canadian Aboriginal law, the case of Montour and White stands as one of the most controversial trial court decisions in recent memory. Though there can be little surprise that the conclusions of Justice Sophie Bourque were appealed by Quebec, it may indeed be the case that the extent of the grounds for appeal come as a shock to many. Going forward, important issues such as the constitutional status of the Covenant Chain of Friendship, the role of UNDRIP in Canadian domestic law, and the status of the dated s. 35 test for Aboriginal rights are all at stake, making this an extremely important decision to keep apprised of. In line with remarks by the notorious English juror Lord Denning, in all the great cases representing milestones of progress in the law, there have always been “bold spirits” and “timorous souls.”[5] Despite the promise of an appeal now made good, we are thankful that Justice Bourque may be counted among the bold.

JFK Law LLP will be following subsequent developments to this case very closely and welcome any inquiries related to potential interventions as the case moves forward.


[1] Ka’nhehsí:io Deer, “Quebec appeals ‘landmark’ decision recognizing Kanien’kehá:ka treaty right to trade tobacco” (11 January 2024) CBC News, online: <https://cbc.ca/news/indigenous/quebec-appeals-treaty-right-tobacco-trade-1.7080655>

[2] Here it is worth noting that at least to a certain extent these grounds of appeal reflect Quebec’s understanding of the ruling and may not necessarily be reflected in the judgment itself.

[3] That is, bare communication and discussion through Treaty Councils. Not necessarily consultation let alone accommodation.

[4] Taiaiake Alfred, “The Government of Canada is once again proving its solid commitment to Settler-Colonialism […]” (9 December 2023 at 6:11pm), online: X [formerly known as Twitter] <https://x.com/TaiaiakeAlfred/status/1733625428517290067?s=20>

[5] Candler v. Crane, Christmas & Co. [1951] 2 KB 164, 178