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Feds appeal to fight self-determination

Megan Kanerahtenha:wi Whyte The Eastern Door

The White and Montour tobacco case is a major victory for Kahnawa’kehró:non and a big set-back for the federal government’s unilateral self-government policy.

That’s why Canada has appealed it.

First of all, I want to congratulate Derek White and Hunter Montour for their court victory at first instance and getting a stay of proceedings for their charges. 

Raising the constitutional arguments in their defence turned out to be a winning legal strategy at the trial level, thanks to Derek and Hunter’s legal team, along with the intervention of Mohawk Nation Council of Chiefs and their lawyer, and, very importantly, having justice Sophie Bourque as the Quebec Superior Court Justice assigned to the case.

In terms of importance for the future of Kahnawa’kehró:non, if the case is upheld on appeal, then I put this White and Montour case up there with the Paul K. Diabo case of 1927, which got the men from Kahnawake, including my father, and the Haudenosaunee Confederacy – who supported the case – and North American Indians from the Canadian side the recognized right to cross the Canada-US border to work in the US without a green card based on the 1794 Jay Treaty.

Bourque heard evidence regarding a series of treaties between the Haudenosaunee Confederacy and the British Crown from the 17th and 18th centuries, referred to as the Covenant Chain – which includes Kahnawake. 

She was also faced with considering previous legal tests adopted by the court for proving Section 35 constitutional rights – and the fact the previous tests came before Parliament passed a federal law in 2021, Bill C-15, adopting a process to ensure federal laws are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Based on these three factors, justice Bourque made the following key conclusions in her judgment:

  • The Court concludes that the Covenant Chain is a peace and friendship alliance that includes a conflict-resolution procedure.
  • The Court concludes that the Covenant Chain is a treaty between the Haudenosaunee and the British, as recognized by Section 35(1).
  • The Court concludes that the UNDRIP, despite being a declaration of the General Assembly, should be given the same weight as a binding international instrument in the constitutional interpretation of Section 35(1).
  • The Court concludes that the question it has to answer when faced with a notice to recognize an Aboriginal right is whether the activity or practice under consideration of the exercise is a right protected by the traditional legal system of the Indigenous peoples claiming the right. This question imposes the following three burdens on an applicant:

1- It will require first to identify the collective right that the applicant invokes;

2- Then, the applicant will have to prove that such a right is protected by his or her traditional legal system; and

3- Finally, the applicant will have to show that the litigious practice or activity in question is an exercise of that right.

  • The Court concludes that the right to freely pursue economic development is one of the generic rights shared by all Indigenous peoples. It is intimately tied to the survival and dignity of any nation.
  • The Court comes to the conclusion that the Mohawks of Kahnawake benefit from this generic right in the same way as any other Indigenous people. In addition, there is evidence on the record for the Court to conclude that the right to pursue economic development is indeed protected under the traditional legal system of the Mohawks of Kahnawake, the Haudenosaunee law.

In her conclusions, Justice Bourque has determined that previous case law establishing legal tests for proving Aboriginal rights, like the racist Van der Peet decision of 1996 – which required proof that a pre-contact right survived into modern times – was adopted before Parliament passed the 2021 United Nations Declaration Act (Bill C-15) into law, which Justice Bourque has also concluded creates a new legal and political framework for reconciliation.

This new framework for reconciliation also seems to support the need for Canada to replace its blanket “self-government” policy, which is based on a municipal model, with a policy that recognizes the international right of Indigenous nations to self-determination.

For example, I would say the reason the federal government did not reach out to the Mohawks of Kahnawake regarding the 2021 federal Excise Act is because the so-called federal 1995 Inherent Right to Self-Government Policy – which remains in use today – has two lists of subject matters for negotiation and one list of non-negotiable matters:

  1. Matters Canada accepts as “inherent rights,” but which still must be negotiated;
  2. Matters that Canada doesn’t accept as “inherent rights,” but will delegate authority over;
  3. Matters that Canada will not negotiate, such as self-determination; extinguishment of Aboriginal title; Crown sovereignty, international treaty-making; international trade, import and export; trade and commerce; and criminal law and fiscal policy.

The 2021 federal Excise Act, federal fiscal policy, and regulation of tobacco are all non-negotiable matters, according to the Inherent Right to Self-Government Policy, which prime minister Jean Chrétien imposed in 1995. 

The Mohawk Council of Kahnawake used the federal “self-government” to negotiate previous agreements with the federal and Quebec governments, as is noted in Bourque’s decision, and the Trudeau government still uses the policy today, despite its assertions of “reconciliation” and Parliament’s passage of the United Nation Declaration Act (Bill C-15), which has set up an “action plan” to ensure consistency of federal laws with UNDRIP.

In the end, on Friday, December 1, 2023, the White and Montour case was appealed by the federal government, essentially because it contradicts the status quo colonial “self-government” policy, which does not include recognition of the international right of self-determination.

Despite this ongoing legal conflict, the White and Montour case continues to be a good basis for Kahnawa’kehró:non (and Haudensaunee) to demand that the Trudeau government replace its unfair, one-sided federal policies and laws, because as justice Bourque concluded, the 2021 federal Excise Act is a breach of the unextinguished Haudenosaunee-British Covenant Chain Treaty and inconsistent with international standards of Indigenous human rights, including the right to survival and to freely pursue economic development.

This article was originally published in print on Friday, December 8, in issue 32.49 of The Eastern Door.

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