Defining Aboriginal Rights: How the Decision in R v. Montour Protects the Goal of Section 35(1)

 What is Section 35(1) and why is it important?

Section 35(1) is a section of the Constitution Act, 1982. Under section 35(1), “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Section 35(2) clarifies that “aboriginal peoples of Canada include the Indian, Inuit, and Métis peoples of Canada.”

Indigenous Peoples fought to include section 35(1) in the Constitution to restore and protect a particular relationship they established with the Crown when the British first arrived in North America. During the mid-1700s, the British Crown signed treaties with Indigenous Peoples that outlined the nature of their relationship. In 1763, the Crown issued a Royal Proclamation, which defined the treaty formation process between the Crown and Indigenous Peoples. The Proclamation stated that the Crown was the only entity that could form treaties with Indigenous Peoples[NM1]  for their lands. In 1764, a treaty between the Crown and Indigenous Peoples called the Treaty of Niagara clarified the relationship outlined in the Royal Proclamation. Indigenous legal scholar John Borrows highlights that, when interpreted together, the Royal Proclamation and the Treaty of Niagara establish a binding agreement between the Crown and Indigenous Peoples. Under this agreement, the Crown and Indigenous Peoples would have a nation-to-nation relationship. In this relationship, neither the Crown nor Indigenous Peoples could interfere with each other’s internal operations without their consent.

Despite this binding agreement, the Crown ignored the relationship it established. Claiming that Crown laws were superior to Indigenous laws, the Crown imposed its own legal system on top of Indigenous legal systems. When constitutional negotiations arose in the early 1980s, Indigenous peoples fought to recognize and affirm Indigenous rights in the Constitution and restore the nation-to-nation relationship previously established with the Crown.

Due to the efforts of Indigenous Peoples, section 35(1) was ultimately included in the Constitution Act, 1982. Resistance from the provinces resulted in the word “existing” being included before the words “aboriginal rights” in this section.

Section 35(1) test for Aboriginal Rights

While section 35(1) specified that it protected “existing” Aboriginal rights, it did not specify which rights were considered “Aboriginal” and therefore protected under that section. In R v. Van der Peet, the Supreme Court of Canada (SCC) outlined a three-part test for deciding whether a right is an Aboriginal right under section 35(1).

Under the test in Van der Peet, a claimant has proven that they have an Aboriginal right under section 35(1) if they meet the following requirements:

1.     Characterize the right that they argue is protected. This characterization is done using three sub-factors: the kind of action infringing the right, the kind of law infringing the right, and the “pre-contact practice, custom, or tradition relied on to establish the right.”

2.     Establish that the right is “integral to a distinctive culture of the Aboriginal group claiming the right.” For First Nations claimants, the court stated that the right must be integral to a distinctive culture in the period before contact with Europeans. In a later case, the court clarified that for Métis claimants, the relevant period is post-contact, pre-control.

3.     Establish that there is “continuity” between the right they are claiming and the “pre-contact practice, custom, or tradition relied on to establish the right.”

After meeting these requirements, the analysis shifts to whether the government has infringed on that right and whether that infringement is justified. The SCC outlines this test in a case called R v. Sparrow. However, that test is beyond the scope of this blog post.

Criticisms

Several Indigenous legal scholars argue that, since the SCC decided for itself which rights are considered “Aboriginal,” the test in Van der Peet inappropriately defines Aboriginal rights.

In Van der Peet, the court held that section 35(1) has “the purpose of reconciling pre-existing aboriginal societies with the assertion of Crown Sovereignty over Canada.” According to Brenda Gunn, this statement reveals that the SCC assumed that the Crown had the right to impose its laws on top of Indigenous laws. This assumption ignores that the Crown could not impose its own definition of rights on Indigenous Peoples. Rather, Indigenous Peoples have the right to define their rights according to their own legal practices and traditions. Since the court relied on that assumption of superiority when creating the Van der Peet test, Gunn argues that this test can never fulfill the intended purpose of section 35(1): to restore the nation-to-nation relationship between the Crown and Indigenous Peoples.

As Karen Drake elaborates, the unquestioned assumption of Crown legal superiority also results in the test being overly specific. The court in Van der Peet curiously held that Aboriginal rights are different than liberal rights because not all members of society hold them. As Drake argues, the court’s assessment that Aboriginal rights are “illiberal” leads to their conclusion that they are “extra” or “special” rights. This conception of Aboriginal rights leads to a test that is overly restrictive, which decides whether a right exists on a case-by-case basis instead of recognizing that the rights are held by the collective group.

Similarly, John Borrows highlights how considering that rights must be “integral to a distinctive culture” and have “continuity” with past practices creates a test that is unnecessarily focused on past expressions of rights. This focus leads to a test that restricts the types of rights that can be asserted under section 35(1). It particularly makes it difficult to assert rights such as child welfare and healthcare, as these cannot easily be linked to past practices under the test.

United Nations Declaration on the Rights of Indigenous Peoples

Gunn, Drake, and Borrows also highlight that the test in Van der Peet is inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The Articles in UNDRIP outline “minimum standards for the survival, dignity and well-being of Indigenous Peoples of the World.”   

Under a legal principle called “the presumption of conformity,” countries are expected to make and interpret laws that conform to international law. Under this principle, Canada has a duty to make and interpret laws that conform to UNDRIP. Since the UN issued UNDRIP, Canada has also implemented the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIP Act), which outlines a plan for how Canada will incorporate UNDRIP into its domestic law. The decision to implement the UNDRIP Act only underscores Canada’s duty to adhere to the UNDRIP Articles.

By continuing to use the Van der Peet test to define Aboriginal rights, Canadian courts are failing to uphold a legal duty imposed on them in international law. As Gunn argues, subjecting Indigenous law to Crown law goes against statements in UNDRIP that Indigenous legal systems are protected as appropriate avenues for the expression of rights.

Since Indigenous Peoples included section 35(1) in the constitution to restore the nation-to-nation relationship between themselves and the Crown, the Van der Peet test also defies Article 40 of UNDRIP, which states that “remedies for past violations are to be identified in relation to Indigenous Peoples’ laws and consultation should be carried out in accordance with Indigenous peoples’ own laws.” Borrows similarly points out that, according to UNDRIP, Indigenous rights claims do not need to be limited to past expressions of rights.

While the Van der Peet test sees Aboriginal rights as “special” or “extra,” Gunn highlights that under Articles 1 and 2 of UNDRIP, “Indigenous Peoples have a right to be considered Indigenous and that special protections may be necessary to ensure their inherent rights are protected.”

Overturning Van der Peet 

Despite the concern that the Van der Peet decision does not respect UNDRIP, Gunn points to this inconsistency as a tool to overturn the decision and create a new section 35(1) test.

A principle called stare decisis normally prevents a lower court from overturning a decision of a higher court. However, as outlined in a case called Canada (Attorney General) v. Bedford, trial courts can overturn decisions from a higher court if certain elements are met. Carter v. Canada (Attorney General) clarified how this can be done: Per Carter, “Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate.”  

Per Gunn, the introduction of UNDRIP constitutes a change in circumstances that would warrant reconsidering Van der Peet. In turn, Canada’s legal obligation to adhere to UNDRIP creates a new question of law of whether Van der Peet is consistent with those obligations.  Once it could be established that these elements require that Van der Peet be overturned, the provisions in UNDRIP could be used as a framework for courts to create a new test under section 35(1).

 

R v. Montour  

A recent decision in the Quebec trial court, R v. Montour, has taken a very similar approach to that outlined above. Using Canada’s commitments under UNDRIP, the UNDRIP Act, and the test outlined in Carter, Justice Bourque overturned the Van der Peet test and created a new test to define Aboriginal rights under section 35(1).

This case involved two men from the Mohawk nation of Kahnawà:ke, who were convicted under the Excise Act of failing to pay duties on tobacco they imported from the United States. The men argued that, based on a series of treaties between the Mohawk Nation and the British Crown, and an oral treaty called the Covenant Chain, the Mohawk Nation had a right to free trade, including the trade of tobacco. These treaties also established a right to discuss any issues related to tobacco trade with the Crown. The men argued that these treaty rights are protected under section 35(1). In drafting the Excise Act without consulting the Mohawk Nation, the government had unjustifiably infringed on those rights.

The men also argued that they had an additional Aboriginal right to participate in the trade of tobacco that was protected under section 35(1). Importantly, they argued that the court should use a new test to assess whether they had this right. They argued that the conditions in the test from Carter had been met, and the test in Van der Peet should be overturned. 

The judge in this case, Justice Bourque, agreed with the men that the Covenant Chain established these rights. Drawing on historical and expert evidence, she found that the Covenant Chain established a “peace and friendship alliance” that established both a right to freely trade tobacco and a conflict resolution procedure to discuss this right. Since the parties had not extinguished these rights, she decided that the Mohawk Nation currently held these treaty rights.

She then considered what test was appropriate to decide whether the claimants had an Aboriginal right under section 35(1). Drawing on the test in Carter, Justice Bourque agreed that the conditions had been met to overturn the test in Van der Peet.

Citing Canada’s endorsement of UNDRIP, Justice Bourque concluded that Canada’s duty to adhere to UNDRIP raises a new legal issue and satisfies the first element of the test.

Next, she concluded that Canada’s endorsement of UNDRIP is symbolic of a growing public awareness of the issues Indigenous Peoples face in Canada. The numerous public inquiries on these issues, such as the Truth and Reconciliation Commission and National Inquiry into Missing and Murdered Indigenous Women and Girls, have added to this public awareness. These events formed new circumstances that shift the parameters of the debate because they have resulted in Canada’s increasing prioritization of reconciliation with Indigenous Peoples. She added that the idea of reconciliation itself has also shifted since the decision, from one that emphasizes “conciliation,” which imposes Canadian law on top of the Indigenous laws, to reconciliation based on “mutual recognition and respect.”

Using this new test, Justice Bourque found that the men also had an Aboriginal right under section 35(1): “a right to freely pursue economic development.” She found that the government had infringed both their treaty rights and an Aboriginal right under section 35(1) and that the case against the men should be stopped.

New test:

Finding that Van der Peet is overturned, Justice Bourque outlined the new test for whether an Aboriginal right exists under section 35.

She stated that, to establish a right under section 35(1), the claimant must meet three requirements:

1.     “Identify the collective right that the Applicant invokes;”

2.     Establish that that right “is protected by his or her traditional legal system;”

3.     Establish that the activity or practice that is being targeted by the lawsuit “is an exercise of that right.”

In her reasoning, Justice Bourque seems to address many of the issues raised with the Van der Peet decision. In doing so, she provides a test that is better suited to restoring the nation-to-nation relationship intended by section 35(1). 

By grounding the definition of Aboriginal rights in Indigenous legal systems, Justice Bourque addresses Gunn, Drake, and Borrows’ arguments that definitions of Indigenous rights should be rooted in Indigenous Peoples’ own legal traditions. 

Justice Bourque also implies that by recognizing Indigenous legal systems as the definers of Indigenous rights, the new test acknowledges the nation-to-nation relationship between Indigenous Peoples and the Crown. She states that the test “fully recognizes that Indigenous Peoples were not only occupying the land, but were and are nations with political, social, economical, and also legal systems.” In recognizing and respecting this relationship, Justice Bourque responds to Gunn’s criticism and establishes a solid foundation for the contents of the test.

Justice Bourque also grounds the test in Indigenous definitions of rights by emphasizing that Indigenous rights are collective and should not be litigated on a case-by-case basis. In doing so, she acknowledges Borrows’ and Drake’s arguments that the Van der Peet test is unnecessarily restrictive.

Overall, this test is an improvement to the Van der Peet test because it acknowledges the inherent right of Indigenous Peoples to define their rights and cultures. In doing so, it not only respects Canada’s obligations under UNDRIP but also works to restore the nation-to-nation relationship intended by section 35(1).

Takeaways

Justice Bourque’s decision is currently being appealed. However, principles outlined in a recent SCC decision suggest that her decision may be upheld on appeal. In Reference re an Act respecting First Nations, Inuit and Métis children, youth and families, the SCC held that UNDRIP “has been incorporated into the country’s positive law.” The court held that under section 5 of the UNDRIP Act, the Canadian government is required to consult and cooperate with Indigenous Peoples and “to take ‘all measures necessary to ensure that the laws of Canada are consistent with the Declaration.’” The Supreme Court’s confirmation of Canada’s duties under UNDRIP may reinforce Justice Bourque’s decision and increase the likelihood that the decision will be upheld. Overall, the finding in Montour is a promising development in respecting the intention behind section 35(1). Justice Bourque’s decision to depart from Van der Peet is a positive reminder that the courts can be flexible and adopt creative solutions to protect Indigenous rights.

List of Resources Consulted:

Legislation

- United Nations Declaration on the Rights of Indigenous Peoples, UN General Assembly, 2 October 2007, A/RES/61/295.

-     United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14.

Cases

-       Carter v Canada (Attorney General), 2015 SCC 5.

-       Canada (Attorney General) v Bedford, 2013 SCC 72.

-       Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5.

-       R v Montour, 2023 QCCS 4154.

-       R v Van Der Peet, [1996] 2 SCR 507, 137 DLR (4th) 289.

Secondary Sources

-       Brenda L. Gunn, “Beyond Van der Peet: Bringing Together International, Indigenous and Constitutional Law” in Centre for International Governance Innovation, UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws (Special Report).

-       Briand et al., “R. v. Montour: a drastic shift in Indigenous rights jurisprudence” Langlois (11 January 2024) online: <https://langlois.ca/r-v-montour-a-drastic-shift-in-indigenous-rights-jurisprudence/>.

-       John Borrows, “Challenging Historical Frameworks: Aboriginal Rights, the Trickster, and Originalism” (2017) 98: 1 Can Rev 114.

-       John Borrows, “Wampum at Niagara: the Royal Proclamation, Canadian Legal History and Self-Government,” in Michael Ash, ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (Vancouver; UBC Press, 1997). (From Classes 2-3 reading materials).

-       Karen Drake, “R v Pamajewon” in Kent McNeil & Naiomi Metallic, eds, Judicial Tales Retold: Reimagining Indigenous Rights Jurisprudence (forthcoming) (from Classes 17-18 reading materials).

-       Naomi Metallic, “The Relationship between Canada and Indigenous Peoples – Where are We?” Irwin Law Special Series, Special Lectures 2017 – Canada at 150: The Charter and the Constitution (2017).