Policy & Legal

BTCC Co-Investigator is an expert witness in landmark Indigenous Rights case

R. C. White and Montour, Quebec Superior Court

In 2019, Derek White and Hunter Montour were found guilty of various charges under the Excise Act for bringing in substantial quantities of tobacco from the United States without paying duty mandated by the Excise Act.

White and Montour mounted an Aboriginal rights defence to the charges, asserting an Aboriginal right to trade in tobacco and a treaty right to trade as provided for in the Covenant Chain and ten treaties entered into between the Haudenosaunee and British from 1664 to 1760. They argued that the Act unconstitutionally infringed their right to trade in tobacco and that the Crown acted dishonourably and contrary to the Covenant Chain treaty relationship when it imposed taxes on tobacco imports without first consulting with the Haudenosaunee on legislating a tax on the trade.

BTTC Co-Investigator Professor Mark Walters was an expert witness in the case, providing expert testimony and a written report on historic Mohawk treaty rights. The court analysed extensive historical evidence and found that the Covenant Chain is a treaty, characterized as a diplomatic peace and friendship alliance with a conflict-resolution procedure protected by section 35 of the Constitution Act, 1982. The court found that trade was a central component of the Covenant Chain and a key topic of council meetings between the British and Haudenosaunee. While evidence of a tobacco trade was weak, the court did not interpret the intention of the parties as to freeze their trading relationship in the 18^th century. Rather, the intention was to maintain a peaceful and productive trade relationship, aided by discussions that helped the parties reach consensus. The court found the parties must meet their obligations under the Covenant Chain through meaningful discussion.

The court held that the levy of duty imposed on the Applicants, without sufficient opportunity to discuss or resolve the application of the Excise Act to the Applicants, unjustifiably infringed their treaty rights.

The court developed and applied a new legal test to determine whether the Applicants had an Aboriginal right to trade tobacco based on contemporary rather than historical practices. The court found the old Aboriginal rights test, established in Van der Peet, needed to be updated to reflect a modern understanding of Indigenous Peoples, Aboriginal rights, and reconciliation. The Court also found an Aboriginal right to freely determine and pursue economic development and that White and Montour’s participation in the Mohawks of Kahnawà:ke’s tobacco industry is protected by the Mohawk’s collective Aboriginal right to freely pursue economic development. In making this finding, the Court adopted a new s. 35(1) test. The Court found the Act’s infringement of White and Montour’s Aboriginal and treaty rights to be unjustified and stayed the charges as a result.

News coverage of the R. C. White and Montour Case:

• Quebec judge rules Kanien’kehá:ka have treaty rights to trade tobacco (CBC News)
• Quebec Superior Court relies on UNDRIP to prescribe new section 35(1) test in R v White and Montour (JFK Law LLP)
• Judge overturns Mohawk pair’s tobacco conviction, citing centuries-old treaties (Montreal Gazette)
• Landmark Canadian case “an earthquake in Indigenous rights jurisprudence” (National Indigenous Times)
• Quebec decision on Mohawk tobacco trade a ‘game-changing advancement’ in Aboriginal law, says lawyer (Canadian Lawyer Magazine)
• History made in tobacco case (The Eastern Door)
• “A new era in Canadian law” (National Magazine, The Canadian Bar Association)
• Quebec appeals ‘landmark’ decision recognizing Kanien’kehá:ka treaty right to trade tobacco (CBC News)