Last month, Derek White and Hunter Montour made history, being granted a permanent stay of criminal proceedings in one of the most high-profile tobacco trade cases to date, after a Quebec Superior Court judge gave recognition to historic treaty rights including the Covenant Chain.
Now, Quebec is trying to reverse that decision and has served notice that it will be appealing the landmark judgment rendered on November 1 by Justice Sophie Bourque.
“It’s a wire-to-wire appeal. They’ve raised just about everything under the sun,” said Vincent Carney, White’s lawyer.
“They are contesting the entirety of the decision, they want it sent back to trial court to be reheard in accordance with the law as it was before,” Carney said. “Justice Bourque has caused this paradigm shift in terms of law, and because the goalposts have moved, they’re very unhappy.”
White said the appeal is reflective of Quebec’s attitudes towards Indigenous people.
“It’s obvious that Quebec doesn’t want us to make money or to thrive in business. This goes along with gaming, cannabis, and tobacco. They don’t want any Native to make money,” he said. “They want us to be poor and to beg the government for money.”
A number of specific contestations are raised in the appeal document, which was issued solely in French, in accordance with Quebec French-language legislation. Some objections were not necessarily expected, according to Carney, such as the contesting of the decision to allow the Mohawk Nation Council of Chiefs (MNCC) to be interveners in the case.
The MNCC had been allowed to intervene on the basis that the issue at hand concerned collective rights and not just the individual rights of White and Montour.
“We take that very seriously, because so much of (Bourque’s) decision is devoted to the Mohawk and Haudenosaunee perspective provided by the MNCC and their witnesses, the condoled chief Curtis Nelson and Dr. Amber Adams,” Carney said. “If their strategy would be to have the decision granting the MNCC intervenor status overturned, that means that they would no longer be a party, and furthermore that all their evidence would no longer be on the record. That would have great implications for the possible outcome of the case.”
Taiaiake Alfred, who was an expert witness in the case, said that though it’s not surprising that there has been an appeal, it’s disappointing.
“You have people who are making decisions at this level who just can’t accept the fact that they’re wrong, and they need to use the court system again to try to limit our inherent rights and to try to scale back the broad recognition that justice Bourque gave to the facts of history,” he said.
Justice Bourque made history when she said that the Covenant Chain and other historic treaties stand as unbroken agreements between Canada and Indigenous people. She said that these treaties mean that Indigenous people are exempt from the 2001 Excise Act at the crux of the criminal charges against White and Montour.
That judgement has an impact on other Indigenous people who rely on historic treaties in asserting their rights in Canada. Carney said that this may mean that there will be other intervenors in the case, should it go to retrial.
“We suspect that there could be those other motions for intervention. We think the (MCK) might be interested, possibly other First Nations who are treaty partners of Canada under the Covenant Chain, possibly even nations out west who are very interested in the issues raised here,” Carney said. “There are lots of people interested by this judgment. The Abenaki might be interested, the Mi’kmaq, we know that Algonquins are interested, and other Mohawk communities too, so this goes beyond Derek and Hunter.”
White said he hopes other Onkwehón:we will support him.
“We need to win this. We need all people across the nation to get involved in this and help with the fight. We need every community to intervene and put up a fight,” he said.
The case and its appeal will be discussed at an upcoming community meeting next Tuesday at 7 p.m. at the Golden Age Club, which MCK grand chief Kahsennenhawe said should give community members more clarity about the impacts of the decision moving forward. She said Quebec’s refusal to recognize Indigenous rights is testament to the province’s attitude towards Indigenous people.
“It’s frustrating. We take three steps forward and then we go back. They can’t even acknowledge how much time and diligence that the judge took to really understand the long-term relationship, and what our expectations are. They just undermine it all and take us backwards,” she said.
“It’s so disheartening. All of those rights existed before, and we were hopeful that now we’d finally have the ability in a modern context to live and breathe and exercise them. But Quebec doesn’t want to hear that, they want to keep us suppressed.”
Sky-Deer said Quebec’s refusal to acknowledge the Covenant Chain and other treaty rights amounts to attempts at rewriting the past.
“It’s a complete disrespect,” she said. “It’s revisionist history.”
If Quebec loses again at the appeals court, it’s possible that it could appeal once more, which would take the case to the Supreme Court of Canada, to be heard in front of nine Supreme Court justices.
“It’s a long battle ahead of us. This is like game three in a seven-game series,” Alfred said. “It’s been proven again that the people in the Justice Department who make these decisions are wedded to older ideas about the relationship between our people and Canada, and they’re not willing to accept the depth of understanding that justice Bourque layed out in her judgment.”
A brief will be filed by Quebec expanding on the grounds of appeal, which will likely come in late February or early March. After that, the defendants will have 60 days to file their response brief, though the process could take longer depending on if there are any special motions presented by the parties. Though written pleadings will likely be filed next year, it’s unlikely that White and Montour will be in court pleading the oral argument until at least 2025 – possibly later, if there are intervenors who wish to provide fresh evidence.
Though the path ahead is long, White said he refuses to give up.
“I’m not going down without a fight. I started this almost eight years ago, and I’m going to finish this with the help of MCK, with the help of anyone, or with no help from anyone. I’m going to fight this alone if that’s what it takes,” he said.
For now, the permanent stay of criminal procedure remains in place, so White and Montour are free of limitations on their individual rights, such as freedom of movement, that they endured while the recent verdict was pending.