This case concerned a criminal prosecution for illegal import of tobacco and whether duty levied on tobacco under the Excise Act, 2001 infringes Aboriginal and treaty rights.
Photo credit: Gordon Lyall
Analysis: Historical evidence of a treaty and a new test for Aboriginal rights
The court analyzed 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 18th 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. While the court held that the government’s goal of controlling tobacco is a worthy policy objective, it held that the adverse effects of the limitations imposed under the Excise Act, including criminalization of Indigenous people, were not proportional.
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. In the court’s words, “[t]he notion of reconciliation, as referring to a work-in-progress to arrive at a mutually-respectful long-term relationship between sovereign peoples, did not have the same importance at the time Van der Peet was delivered as it has nowadays.” (At para. 1233.) The court also justified the development of a new test based on the view that the UN Declaration, though not a binding instrument of international law, should be given the weight of a binding instrument of international law in the interpretation of section 35 of the Constitution Act, 1982, and reflect ongoing and significant changes in the understanding of Indigenous Peoples in Canada.
Photo credit: Gordon Lyall
The new Aboriginal rights test articulated by the court is “whether the activity or practice under consideration… is a right protected by the traditional system of the Indigenous Peoples claiming the right.” This burden of proof is on the party asserting the right to (1) identify the collective right, (2) prove that is protected by their traditional legal system, and (3) show a practice or activity that exercises that right. The court found the Applicants’ evidence met the requirements of the new test. Applying this test, the court held that the Mohawk had an Aboriginal right to trade tobacco, which the application of the Excise Act unjustifiably infringed.
This is a remarkable, unusual decision in many respects. While there is much to admire in the court’s analysis, it represents a stark departure from foundational principles regarding Aboriginal rights articulated by the Supreme Court of Canada.