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Departure from Stare Decisis: Quebec Superior Court Sets Out New Aboriginal Rights Test in R. c. Montour, 2023 QCCS 4154

A recent Quebec Superior Court decision departs from Supreme Court of Canada precedent and proposes a new framework for Aboriginal rights under s.35(1).

Historical Background

The Haudenosaunee, also known as the Iroquois, have shaped the landscape of North America for millennia. Originating as the Five Nations, the Mohawk, Oneida, Onondaga, Cayuga, and Seneca came together to form the Iroquois Confederacy, grounded in The Great Law of Peace. In 1724, the Tuscarora joined, and the the Confederacy became known as the Six Nations, which it is still referred to as today. A crucial facet of their history lies in the Covenant Chain, a diplomatic relationship with the British that saw ten treaties between 1664-1760, addressing trade, military, and political matters. This relationship, rooted in council meetings, gradually eroded amid demographic, social, and political changes.

Decision Summary: R. c. Montour, 2023 QCCS 4154

Derek White and Hunter Montour (the Applicants), both Mohawks of Kahnawà:ke, were found guilty on charges related to tobacco importation under the Excise Act, 2001. Seeking a permanent stay of proceedings, they argued that their Aboriginal and treaty rights were unjustifiably infringed.

During their jury trial, the Applicants had filed Notice of constitutional questions for these Aboriginal and treaty rights issues. In an interim ruling, the case management judge decided that the Notice would be heard if the jury returned a guilty verdict. Here, the Quebec Superior Court considered the constitutional questions.

Legal Issues Raised

The Applicants raised issues with regards to treaty rights and Aboriginal rights. Treaty issues concerned alleged procedural rights under the Covenant Chain and the alleged right to free trade as guaranteed by the ten historical treaties between 1664-1760. The Aboriginal right alleged was a “right of participation in the tobacco trade.”

Indigenous Perspective

The Court, recognizing its obligation to understand and consider Indigenous perspectives, extensively analyzed Haudenosaunee culture. The paid close attention to Haudenosaunee language, metaphors, and symbolism, and law. In doing so, the Court found that Haudenosaunee vocabulary established relational obligations with the British based on family metaphors. Furthermore, it was found that The Great Law of Peace was at the heart to the treaty relationship between the Haudenosaunee and the British and this included a diplomatic system of conflict resolution through council meetings.

Treaty Rights

The Court held that the Covenant Chain is a non-extinct treaty, binding the Haudenosaunee and the Crown, that includes a conflict resolution procedure that required good faith negotiation with the aim of consensus. The Court also found that the contemporary issue of tobacco trade between parties is subject matter that must be discussed at modern councils. The Court declined to delve into the question of a right to engage in tobacco trade guaranteed by the ten historic treaties.

The Applicants argued that the Crown infringed the honour of the Crown and the Covenant Chain relationship because it failed to consult and negotiate in good faith, following council meeting protocols, before legislating tobacco regulations. On the other hand, the Attorneys General viewed the Covenant Chain as a symbolic alliance, not containing any procedural rights.

As a preliminary matter, the Court rejected the Attorney General of Canada’s argument that the Crown in Canada is not bound by treaties concluded by the British Cown outside Canadian territory,  affirming their transfer upon the Constitution’s repatriation in 1982.

The Court held that the Covenant Chain is a treaty because it was rooted in mutual obligations established with solemnity. The Court affirmed the British and Haudenosaunee’s mutual intent, rooted in Haudenosaunee law and diplomatic traditions. The enduring relationship evolved through consistent Covenant Chain councils.

The Court firmly rejected the argument that the British only participated in council meetings as a diplomatic measure to obtain collaboration with the Haudenosaunee, confirming a high degree of solemnity upheld through ceremonies and protocols.

Aboriginal Right

The Court concluded that the Applicants demonstrated that their participation in the Mohawks of Kahnawà:ke tobacco trade industry is protected by their Aboriginal right to freely pursue economic development.

Decision: A Departure from Stare Decisis

The Court held that the circumstances were such that it may depart from vertical stare decisis because a new legal issue was raised and there was a change in the circumstances that fundamentally shifted the parameters of the debate.

The Court held that the endorsement of UNDRIP without qualification, and the adoption of the UNDRIP Act, raised a new legal issue that was not before the SCC in Van der Peet. In doing so, the Court concluded that UNDRIP should be given the same weight as a binding international instrument in the interpretation of s.35(1).

The Court found profound social change evidenced in Canada’s endorsement of UNDRIP without qualification and the adoption of the UNDRIP Act. The Court found that Canada is in a new social landscape than it was twenty years ago and now reconciliation, with the aim of building respectful nation-to-nation relationships, is now central to any discussion concerning Indigenous peoples in Canada.

New Aboriginal Rights Test

The Court set aside Van der Peet and rendered its decision based on a new test for Aboriginal rights, focused on avoiding lengthy historical debates and concentrating on essential legal questions, particularly those related to reconciling the interests of two sovereign nations. It decided that an Aboriginal right analysis must determine whether the activity or practice under consideration “is the exercise of a right protected by the traditional legal system of the Indigenous peoples claiming the right” (para 1296).

The new Aboriginal rights test proposed imposes three burdens on those wishing to establish a right, which can be summarized as follows.

    1. Identification of a Collective Right: The focus is on constitutionally defining Aboriginal rights in a manner similar to Charter Accordingly, rather than cataloging specific practices, collective rights are defined in relation to fundamental norms and values. This aligns with UNDRIP principles.

    1. Protection by Traditional Legal Systems: The test requires proof that the identified right is safeguarded by the Applicant’s traditional legal system. The court rejects the notion of a “magic moment” of European contact, recognizing the sufficiency of a connection with the traditional legal system. Moreover, the Court recognizes that some rights could be generic, benefitting from a presumption that they are protected under traditional Indigenous legal systems because of their universal nature.

  1. Distinguishing Collective and Individual Rights: The final step differentiates between the existence of a collective right and its individual exercise. This allows courts to assess the justification for violating an individual’s exercise of a collective right without undermining the collective right itself. The overall goal is to contribute to reconciliation between sovereign nations by recognizing traditional Indigenous legal systems.

Application of New Aboriginal Rights Test

In identifying the collective right, the Court took a broad approach and identified the fundamental norm that the Applicants invoked that could deserve protection from State intervention. The Court determined that the Applicants invoked the right to freely pursue economic development.

The Court held that the right to pursue economic development is protected by the traditional legal system of the Mohawks of Kahnawà:ke. In its reasons, the Court held that the right to pursue economic development is a generic right that applies to all Indigenous peoples. There is a strong presumption that generic rights are part of traditional legal systems.

The Court held that the Applicants’ conduct was pursuant to the right of their community to freely pursue economic development. There was conclusive evidence of the extensive development of the tobacco industry in the community for economic purposes and as an expression of self-governance.

Prima Facie Infringement

The Court held that there was prima facie infringement of the Applicants’ treaty right to discuss issues under the Covenant Chain and their Aboriginal right to freely pursue economic development.

The treaty right infringement was straightforward given that the regulation of tobacco trade was a well-known subject of disagreement, yet there was no attempt by the Crown to discuss the matter prior to adopting the Excise Act, 2001.

There were multiple reasons for the Aboriginal right infringement, the strongest being that the Applicants could only exercise their rights at the discretion of the Minister, who may refuse to deliver a licence on the nebulous ground of public interest. The Court held that Parliament cannot give an unfettered power, without any guidance, where it is obvious that the legislation will apply to Indigenous applicants– where Aboriginal rights are at stake, explicit guidelines are necessary.

Justification and Remedy

Canada did not meet its burden to prove that infringements of the Aboriginal and treaty rights were justified because its conduct was inconsistent with the honour of the Crown and its fiduciary obligations. The Court followed the justification test as articulated in Tsilhqot’in.

In the result, the Court concluded that the criminal proceedings against the Applicants should be permanently stayed.

Significance of Decision

Significant aspects of this decision are summarized as follows.

    1. New Test for Aboriginal Rights: The decision rests on a new test, departing from the “magic moment” concept and instead assessing whether there is protection of rights within traditional Indigenous legal systems (paras, 1296-1297, 1326,1328).

    1. Aboriginal Right to Economic Development: The Court recognizes the right to freely pursue economic development as a generic right for all Indigenous peoples (para 1375). The Court also indicates that other universal rights required to meet basic needs of nations, such those outlined in UNDRIP, are also generic (para 1309). These generic rights apply to all Indigenous peoples unless there is compelling evidence to the contrary (para 1328).

    1. Easing the Aboriginal Rights Test: The Court holds that the task of establishing an Aboriginal right should be eased in light of the reconciliatory purpose of s.35(1) (para 1333).

    1. UNDRIP as Binding: The Court holds that UNDRIP is binding to the Court’s interpretation of rights under s.35(1) (para 1201).

    1. Impact of UNDRIP: The Court makes the novel finding that social shifts in Canadian with respect to recognition of Indigenous rights and reconciliation, and the UNDRIP Act, are fundamental and may justify a departure from vertical stare decisis (paras 1224-1233). This may be raised to revisit jurisprudence in other areas of Aboriginal law.

    1. Applicability of Tsilhqot’in Justification Analysis: The Court indicates that the Tsilhqot’in justification analysis is applicable to Aboriginal rights infringements, not just Aboriginal title (para 1537).

    1. Recognition of Treaties Outside Canadian Borders: The Court holds that Canada may be bound to treaties concluded by the Crown with Indigenous peoples outside present-day Canadian borders (paras 527-528).

    1. Unwritten Treaties: The Court’s assessment of the Covenant Chain reiterates that unwritten agreements, by oral exchanges and patterns of conduct, can establish treaty rights constitutionally protected under s.35(1) (paras 901-1099).

  1. Evolution of Treaty Rights: The Court’s assessment of the Covenant Chain strongly emphasized the Indigenous perspective and the Indigenous nation’s intent to create mutually beneficial long-term relationships that are responsive to change (paras 901-1099). The result was recognition that treaty rights could not be restricted to the exact subject matter in play at the time agreements were concluded (para 1010). This may create more space for constitutional protection of other evolved, modern practices by First Nations.

The Attorney General has appealed the Court’s decision, with the appeal anticipated in 2024.


In R c. Montour, the Quebec Superior Court departs from established Supreme Court of Canada jurisprudence to introduce new framework for establishing an Aboriginal right under s.35(1). In this approach, the Court places new emphasis on traditional Indigenous legal orders and reaffirms the reconciliatory object of s. 35(1) to facilitate long-term respectful nation-to-nation relationships. In doing so, the Court raises important questions on the impact of UNDRIP and the UNDRIP Act and has potentially opened the door for future reconsideration and reformulation of other areas of Aboriginal law. This framework will likely be developed on appeal.

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