The Superior Court Proposes To Replace the Van der Peet Test

Introduction

In May 2019, two members of the Kahnawà:ke Mohawk Nation, Derek White and Hunter Montour, were charged with criminal offences relating to the importation of tobacco into Canada without complying with the tax obligations arising under section 42(1) of the Excise Act, 2001. The judgment in R. c. Montour,^[1] released on November 1, 2023, and written by the Honourable Sophie Bourque, accepted  the accused arguments and proposed to amend the law applicable to the recognition of Aboriginal rights in Canada.

On December 1, 2023, the AGQ filed its notice of appeal in this matter.

Background

The Superior Court had to rule on the accused’s application to determine whether their rights protected by section 35(1) of The Constitution Act, 1982 (hereinafter “CA 1982”) had been infringed. Specifically, the accused argued that (1) the federal Crown had failed in its duty to consult by adopting the tobacco trade scheme set out in the Excise Act, 2001 without consulting the Mohawk parties and that (2) given that the regime does infringe on section 35 of the CA 1982, the requirement to obtain a permit from the federal Minister violates their right to economic self-determination, specifically the tobacco trade.

The Mohawk parties relied in particular on the Covenant Chain alliance between the British Crown and the Haudenosaunee nation to support their argument.

The Attorney General of Canada, on the other hand, objected, arguing that the Covenant Chain alliance was something symbolic rather than a true alliance and that the treaties did not give the Mohawks the right to trade in tobacco, nor, a fortiori, to do so without complying with the country’s tax laws.

The Amendment to the Test in R. v. Van der Peet (1996)

In Canadian law, a lower court will be permitted to revisit a jurisprudential precedent where a new legal issue is raised, or if there is a significant change in the circumstances or evidence.^[2]

In the opinion of the Superior Court, the incorporation of the United Nations Declaration on the Rights of Indigenous People (hereinafter the “UNDRIP”) into Canadian law through the United Nations Declaration on the Rights of Indigenous Peoples Act (SC 2021, c 14, the “UNDRIPA”) raises new legal issues that were not before the Supreme Court when it developed the test in R. v. Van der Peet. According to the Superior Court, UNDRIP is equivalent to a ratified international instrument and so it raises the question of analyzing section 35 of the CA 1982 in light of this new legal framework.^[3] The Court specifically said that it wanted to prevent UNDRIP from becoming an empty shell, and that the Canadian government showed a clear willingness to comply with it.^[4]

The Superior Court also considered that there had been significant changes at the societal level, given the reconciliation efforts in recent years with Indigenous peoples. In the opinion of the Court, the society in which the Supreme Court issued its ruling in 1996 was largely not inclined to supporting an important redistribution of wealth and land to Indigenous peoples;^[5] those circumstances would be very different in 2023.

The Court therefore concluded that it was appropriate to set aside the stare decisis rule in relation to the Van der Peet decision. Moreover, it notes that there is a real risk that by putting the stare decisis rule above all other considerations, the Canadian Constitution will cease to represent the fundamental values of the Canadian society.[^6]

Development of a New Test

In developing the new test to be established in relation to section 35 of the CA 1982, the Court noted certain shortcomings in the current Van der Peet test, including the fact that it is better suited to protect hunting and fishing rights and that it tends not to protect commercial rights of economic significance in a modern capitalist system.^[7]

The Court then proposed a test that seeks to determine whether the activity or practice under consideration constitutes the exercise of a right protected by the traditional legal system of the Indigenous peoples claiming this right.^[8]According to the Court’s proposal, a person claiming the protection of section 35 of the CA 1982 must demonstrate that the following three criteria have been met:

(1) the collective right being invoked must be identified,

(2) this collective right must be protected under the traditional legal system of the individual’s nation, and

(3) the activity in question must be the exercise of a collective right by an individual.

Under this new test, the second step aims to determine whether the traditional legal system protects the asserted right, just as one might question whether Canadian law protects the right to security, for example. The Court indicates that it wants to distance the analysis under section 35 of the CA 1982 from any reference to the arrival of Europeans, which purpose is to ensure the continuity of traditional Indigenous legal systems.^[9]

For the third step of the test, the Court will have to determine whether the exercise of a collective right by an individual is protected under section 35 of the CA 1982. The Court saw this as a way to remedy the tensions that may exist between an individual’s claims and the recognition (or not) of the collective right claimed.^[10]

In closing, with regard to the development of this new test, the Court held that judicial efforts and resources will be put to better use in that it will aim at conciliating the exercise of a collective right by an individual with the overall interests of society rather than undergoing long historical debates unsuited to the judicial system.^[11]

In the case of Mr. White and Mr. Montour, the Court determined that the Mohawk Nation benefited from a general right to economic self-determination, which includes the right to choose the means of that economic development.^[12]The Court also determined that this right was recognized in the traditional Mohawk legal system and that the commercial tobacco trading activities engaged in by Mr. White and Mr. Montour were part of the right to economic self-determination.^[13] In reaching this conclusion, the Court considered that the Kahnawà:ke community had suffered repercussions related to the construction of the St. Lawrence Seaway and the end of the iron work industry, and that it had to turn to other sources of income.^[14]

Having found that there was a protected right under section 35 of the CA 1982, the judge then had to determine whether Canadian tax laws, under which Mr. White and Mr. Montour were charged, violated that right.

Analysis of the Violation to the Right Protected by Section 35 of the CA 1982

In her analysis, the judge determined that section 42 of the Excise Act, 2001 gave broad discretionary power to the Minister. Section 42 provides that a permit related to the tobacco trade will be issued on the recommendation of the Minister, without the regulatory scheme providing any framework that would have allowed for consideration of the rights protected in section 35 of the CA 1982.^[15]

Considering the regulatory scheme as a whole, the Court determined that it violated Mr. White’s and Mr. Montour’s right protected by section 35 of the CA 1982.^[16]

The Court also determined that section 42 of the Excise Act, 2001 was in contravention of the Crown’s duty to consult arising from the Covenant Chain alliance and that it therefore constituted a violation of the rights protected by section 35 of the CA 1982. The Covenant Chain is an oral meta-treaty that originates from a tradition dating back to the 17^th century between the British Crown and the Haudenosaunee Nation, which includes the Mohawks of Kahnawà:ke, and that sought to maintain dialogue and provide a comprehensive mechanism for resolving disputes between the nations.

The Court determined that this violation was not justified in this case given that there were no circumstances to suggest that the entry into force of the new Excise Act, 2001 had to be done urgently considering it was replacing the existing regulatory scheme. Although the Excise Act, 2001 had valid public health objectives, the lack of consultation or attempt to find a solution relating to the tobacco trade with the Mohawk community of Kahnawà:ke was unjustifiable.

In rendering its decision, the Court determined that the Covenant Chain was indeed a treaty protected by section 35 of the CA 1982, that this treaty was still in force and that it is not extinct. The Court determined that the failure of the federal Crown to consult with the parties to the Covenant Chain before enacting the Excise Act, 2001 was a violation of the rights protected by the Treaty.

The Court entered a stay of criminal proceedings against Mr. White and Mr. Montour.

Conclusion

If the judgment of the Superior Court were to be upheld on appeal, assuming that the AGQ’s appeal is indeed accepted, this new test of section 35 of the CA 1982 regarding what constitutes an Aboriginal right will significantly change the nature and scope of the rights of Indigenous peoples in Canada and, by extension, the interactions between those rights and the application of federal and provincial legislation.

Additionally, the Court’s findings with respect to the Covenant Chain could lead to the recognition of new treaty rights based on oral tradition and to the creation of obligations to consult First Nations more directly in the development and adoption of legislation.

We will certainly continue to monitor this decision in 2024.