On November 1, 2023, the Quebec Superior Court issued a lengthy but ground-breaking decision on both how Canadian courts should apply the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and the nature of aboriginal rights of the Indigenous peoples of Canada. If the decision finds traction with other Canadian courts, its approach may transform both aboriginal law in Canada, and the interpretation of all Canadian laws. First, the decision recognizes that ideas of reconciliation between Indigenous peoples and Canada have significantly evolved in past decades, culminating in Canada adopting UNDRIP without qualification in 2016, such that Canadian laws should now be presumed consistent with the Indigenous rights set out in UNDRIP. Second, the Court’s approach to the scope of the aboriginal rights are recognized by Canada’s constitution derives from what rights were protected by the Indigenous legal orders that existed when the Crown asserted sovereignty over different parts of Canada at different times: R. v. Montour and White, 2023 QCCS 4154.
Background: The Montour case involved two Indigenous individuals convicted in May 2019 for planning to bring tobacco from the United States to Canada without paying excise taxes. The individuals asserted that the tax law unjustifiably infringed their Aboriginal and treaty rights. More specifically, they asserted that the Covenant Chain and related treaties and council meetings between the Haudenosaunee and the British Crown between 1664 and the 1830s are existing, binding treaties, which guarantee their rights to trade and to discuss any related conflicts with the Crown. Further, they asserted an inherent Aboriginal right to trade tobacco.
The court granted leave to the Mohawk Nation Council of Chiefs, a traditional government, located in New York state, to intervene and present evidence about the perspective of the Mohawk Nation and to call two witnesses. The court addressed ten historical reports of council meetings, including whether they are treaties, and a number of historical documents and expert witness testimony regarding both the Haudenosaunee and Crown perspectives on and actions following agreements made at council meetings.
The court found that the Covenant Chain was a binding treaty, and that treaty councils had been conducted according to Haudenosaunee diplomatic practices.
Further, as part of deciding whether the individuals had an inherent Aboriginal right to trade tobacco, the court found that social conditions, including change in the legal parameters of debate and a novel legal issue, were such that the court could depart from the test for Aboriginal rights established by the Supreme Court of Canada in the Van der Peet case (or R. v. Van der Peet, 1996 CanLII 216 (SCC),  2 SCR 507).
The Court’s treatment of UNDRIP: As part of exploring whether the court could depart from the law established in Van der Peet, decided more than 25 years previous, the court concluded that the entire societal landscape surrounding the decision in Van der Peet has changed. Among the many changes, including the Final Report of the Truth and Reconciliation Commission in 2015 (TRC), a key change was UNDRIP. Canada initially objected to UNDRIP, but later endorsed it without qualification in May 2016. As part of its speech endorsing UNDRIP, Canada emphasized it was “breathing life into s. 35 [of the Constitution Act, 1982]” and recognizing a “full box of rights” for Indigenous peoples in Canada. Further, Canada had enacted the United Nations Declaration on the Rights of Indigenous Peoples Act (the “UNDRIPA” or “Federal Declaration Act”) which affirmed UNDRIP “as a universal human rights instrument with application in Canadian law”. The Court accordingly concluded that while UNDRIP was not technically a treaty that Canada could ratify, Canada had taken enough steps for the Court to conclude UNDRIP “should be given the same weight as a binding international instrument in the constitutional interpretation of s. 35(1)” (at para. 1201).
As the Court had previously noted (at para. 1161), there is a presumption of conformity that the Charter’s protection is at least as great as that afforded by international human rights documents that Canada has ratified. By treating UNDRIP as a binding international instrument, the Court presumed that s. 35 is consistent with UNDRIP, or in other words, provides for at least the same “box of rights” set out by UNDRIP.
The Court’s acceptance of UNDRIP as giving rise to a presumption of conformity is important not only to federal laws, but also to all laws in British Columbia, given a similarity of language under BC’s Declaration Act. BC has already enacted s. 8.1(3) of the Interpretation Act, which requires that all enactments be construed as consistent with UNDRIP. However, that provision does not extend to the common law. The approach of the Court in Montour gives UNDRIP a role in how courts may interpret the common law in British Columbia, as well as the nature of existing aboriginal rights recognized and affirmed by section 35(1).
A new test for aboriginal rights: Moving on to consider the “test” for aboriginal rights created by Van der Peet has been the subject of strong and steady criticism. For example, the Van der Peet test looks to whether an activity, like fishing, is “integral” to the distinct society of an Indigenous people at the time of first contact. This approach has many flaws, including the need for a non-Indigenous judge to decide which practices are “integral” and which are not; requiring that judges act as historians; the freezing of Aboriginal rights in the past, based on static Indigenous cultures; and the use of a “magic moment” of first contact, instead of recognizing that Indigenous cultures may evolve. Accordingly, the Court developed new steps for identifying when a particular activity comes within an Aboriginal right:
“a) It will require first to identify the collective right that an Applicant invokes;
“b) Then, an Applicant will have to prove that such a right is protected by his or her traditional legal system; and
“c) Finally, an Applicant will have to show that the litigious practice or activity in question is an exercise of that right.”
Notably, the Court recognized that the aim of s. 35 of the Constitution Act, 1982 was to protect rights, not specific exercises of rights: “ The UNDRIP does not protect a catalog of practices, but, rather, rights which are recognized because of their normative significance. The logic is much closer to other human rights instruments, such as the Charter or the Universal Declaration of Human Rights.” Accordingly, the right at issue in the case was not a right to transport tobacco, but rather “to freely pursue economic development by their own chosen means” (at para. 1370).
Further, by requiring reference to traditional legal systems, the Court noted that, “ …reference to the Indigenous traditional legal system is a means of ensuring that the aboriginal aspect of ‘Aboriginal rights’ is taken into account, while avoiding the stereotypes that accompany the notion of pre-contact practices.” Such an approach “fully recognizes that Indigenous peoples were not only occupying the land, but were and are nations with political, social, economical and also legal systems” (at para. 1321). The court also noted (at para. 1328) that, “Some rights could even be generic, benefitting from a presumption that they are protected under traditional Indigenous legal systems because of their universal nature.”
The significance of the Montour case in BC: The Montour decision is by the Quebec Superior Court, which means it does not bind BC courts. However, the decision interprets a federal statute — the Federal Declaration Act — which itself applies in BC. Further, the reasoning of the Court is compelling. The Montour decision represents a basis for substantial change to aboriginal rights across Canada.
In the recent British Columbia case, Gitxaala v. British Columbia (Chief Gold Commissioner), 2023 BCSC 1680, a court, after rejecting an argument by the BC Human Rights Commissioner that UNDRIP had been “implemented” in BC, concluded that UNDRIP was a “non-binding” international instrument. The court did not, however, address Gitxaala Nation’s submission that UNDRIP must a play role in statutory interpretation, given the wording in BC’s Declaration Act (similar to wording in the Federal Declaration Act) that UNDRIP has “application” to the laws of British Columbia. The decision in Montour illustrates a very live issue about the significance of UNDRIP’s “application” to BC’s laws.
R. v. Montour and White, 2023 QCCS 4154
Lisa C. Fong, KC and Michael Ng