Quebec judge rules Kanien’kehá:ka have treaty rights to trade tobacco

A Quebec Superior Court judge ordered a stay of proceedings on charges related to tobacco trade against two Kanien’kehá:ka (Mohawk) men on Wednesday, citing treaty rights.

Derek White and Hunter Montour, both from Kahnawà:ke, south of Montreal, were granted a permanent stay of criminal proceedings on charges related to the largest Sûreté du Québec operation targeting a cross-border contraband tobacco ring.

“It’s a lot of weight lifted off my chest,” White told CBC Indigenous on Thursday.

In 2019, a jury acquitted White on charges of defrauding Quebec of $44 million in tobacco taxes but found the two guilty on federal charges for not paying excise tax on tobacco products.

The pair had asked for a stay of proceedings, arguing that the government had violated their Section 35 Constitutional rights, as well as the United Nations Declaration on the Rights of Indigenous Peoples, and inherent rights as Kanien’kehá:ka to trade tobacco tax-free.

The Covenant Chain

The pair cited the Covenant Chain, a series of agreements starting in the 1700s between the Haudenosaunee Confederacy and British colonies that included the right to trade.

While the Crown argued that the Covenant Chain was not a treaty, Justice Sophie Bourque concluded in her nearly 400-page decision that it was still binding.

She also ruled that the federal Excise Act “unjustifiably infringes” on Section 35 and treaty rights of the defendants, and ordered a stay on their convictions. She wrote that the government also failed a duty to consult with Haudenosaunee, including Kahnawà:ke, on the adoption of the Excise Act.

“It’s going to benefit everyone,” said White, about the decision. 

Montour echoed similar sentiments.

“It’s a history changing event,” he said.

“We’ve always been talking about this, we’ve always known this, but nobody ever listened, especially the government.”

‘Landmark decision’

The Mohawk Council of Kahnawà:ke (MCK) described it as a “landmark decision.” In a news release Wednesday, the MCK said it will conduct a comprehensive legal analysis of the decision, but congratulated White and Montour.

“The judge meaningfully understood the true essence of the nation-to-nation relationship between the Haudenosaunee and Canada,” said Ohén:ton Í:iente ne Ratitsénhaienhs (Grand Chief) Kahsennenhawe Sky-Deer in the release.

“Not only did she capture the spirit and intent of the Covenant Chain, but she understood that Aboriginal rights cannot be frozen in time and are living, breathing rights.”

The proceedings took place between October 2021 and April 2022. The Mohawk Nation Council of Chiefs, a traditional government, was authorized to intervene in the case to present evidence of a Kanien’kehá:ka perspective.

Its lawyer Paul Williams said the most important part of Bourque’s decision is the recognition of the Covenant Chain relationship.

“We’re talking about the relationships almost entirely inside Indigenous legal systems rather than inside the Crown’s common law system. That’s big,” he said.

“A relationship like this is permanent. It cannot be terminated unilaterally by one party.”

‘Judicial pioneering’

James O’Reilly, who was one of four lawyers on the case representing White and Mountour, also said he considered the case precedent-setting. 

“This is judicial pioneering in certain aspects. The result is, basically, she said that the commerce of tobacco in Kahnawà:ke is constitutionally protected,” said O’Reilly.

“It’s a pretty fantastic development when you think about all the problems at the Mohawks of Kahnawà:ke and other groups that have endured.”

O’Reilly said while the government will likely appeal, the judgment remains a “strong declaration by the court.” He expects it will be an “extremely helpful decision” for Indigenous people across Canada asserting treaty rights.

The Attorney General of Canada referred a request for comment to the Canada Revenue Agency, which said it is carefully reviewing the decision.

“The matter considered by the court is important to our ongoing efforts to preserve the integrity of Canada’s tax base and to protect the interests of the Government and Canadians, including Indigenous Peoples,” media relations spokesperson Kim Thiffault said in an emailed statement.  

CBC Indigenous also asked the Attorney General of Quebec for comment but did not receive a response by time of publishing.

ABOUT THE AUTHOR

Ka’nhehsí:io Deer is a Kanien’kehá:ka journalist from Kahnawà:ke, south of Montreal. She is currently a reporter with CBC Indigenous covering communities across Quebec.