In the third article of our firm's four-part series on the landmark decision of the Quebec Superior Court (QCSC) in Montour[1], we explore the significance of the Court's findings of a generic Aboriginal right to pursue economic development.
Montour marks an 'abrupt' departure from Van der Peet
In Montour, Mohawks of Kahnawa:ke members, White and Montour, were convicted for importing tobacco without paying taxes required under the federal Excise Act.2 They argued the Act violated their Aboriginal and treaty rights under the historic Covenant Chain treaty. The QCSC agreed, and in reaching its conclusion, Justice Bourque recognized a collective s. 35(1) Aboriginal right to pursue economic development, and a treaty right to discuss tobacco trade issues with the Crown. The Court held that Canada illegally interfered with these rights and ordered a permanent stay of the charges.
In assessing whether White and Montour had applicable Aboriginal or treaty rights, the Court departed from the 1996 Van der Peet[3] test and applied a new test aimed at better protecting contemporary, rather than historic rights. The first step is to identify the collective right of the Indigenous group deserving of protection. The second step is to determine whether the collective right is protected by the traditional legal system of the Indigenous group. If so, the third step is to determine whether the specific right or activity at issue (e.g. tobacco trade activities) is protected under the collective right of the Indigenous group.
A collective Aboriginal right to freely pursue economic development
At the first step of the Montour test, Justice Bourque stated that an approach centered on collective rights is more aligned with the judiciary's role of interpreting and enforcing legal norms in light of factual circumstances. The Court observed that Aboriginal rights are thus viewed similarly to rights protected under the Charter and the Universal Declaration of Human Rights, recognizing that they are deserving of protection and need not be proven right by right, group by group.4
In Montour, the QCSC held that the collective right protected by s. 35(1) invoked by White and Montour was the right to freely determine and pursue economic development. The Court stated that this right is intimately tied to the survival and dignity of any Indigenous nation, for without it, they would be deprived of the opportunity to flourish and meet their basic needs.5 Therefore, this right is one of the "generic" rights shared by all Indigenous peoples, and carries a strong presumption that it is also part of the traditional legal system of all Indigenous groups.6
Removing barriers to economic rights recognition and protection
Indigenous groups in Canada continue to face significant legal barriers to obtaining recognition and protection of their economic rights and interests, despite the inclusion of these rights in UNDRIP and governments' endorsement and commitments to implement such rights. For nearly 30 years, Van der Peet has led to an impoverished view of Aboriginal rights tied to pre-contact activities, such as hunting, trapping and fishing. Although these practices can evolve into modern-day rights,7 it has nonetheless been challenging for Indigenous groups to break away from this colonial perspective in order to attain legal recognition and protections for their present-day economic interests and well-being, such as establishing the right to a commercial fishery, and to freely pursue resource development in their territories that benefit their communities.
Montour helps to remove these barriers by acknowledging that rights are not frozen in time, and by starting from the presumption that all Indigenous groups possess a right to pursue economic development that is deserving of constitutional protection. Further, rather than engaging in historical debate about pre-contact activities to assess the continuity of a specific right, at the third step of the Montour test, the focus is on whether the specific activity is protected under the group's collective right and, if so, how to reconcile the interests of two sovereign nations. In Montour, the Court considered evidence of the development of the Mohawks of Kahnawa:ke's tobacco trade, including during the 20th century, when they faced significant political, economic and cultural disruption, causing many community members to find other economic means to cope with the loss of traditional subsistence, including the cross-border sale of cigarettes, and more recently, the production of tobacco products. The Court noted that the tobacco industry has become a major source of employment for community members, improves their economic well-being and quality of life, and is supported by the nation's own economic policies.8
Although Montour marks a departure from Van der Peet, it is noteworthy that the decision aligns with other cases that have affirmed constitutional protections for economic rights and interests of Indigenous groups. For example, Delgamuukw[9] and Tsilhqot'in[10] established that Aboriginal title includes the collective rights to use, enjoy and profit from the economic benefits of the land. Most recently in Gitxaala v. B.C. (Chief Gold Commissioner),11 the BC Supreme Court held that the duty to consult is triggered at the mineral claims staking stage, in part because the granting of rights to a mineral claim holder removes opportunities from Indigenous groups asserting rights and title to own, and achieve the financial benefits from, the minerals within their traditional territories.
New considerations in the Crown's duty to consult and accommodate
Montour also raises important considerations for the Crown's duty to consult and accommodate. With some exceptions, the duty to consult is most often triggered when the Crown is considering an action or decision where physical impacts may affect the exercise of 'traditional' Aboriginal rights. However, Montour signals that the Crown should also be required to consider whether an Indigenous group may have particular economic rights or interests that may be adversely affected, and which may trigger the duty to consult. This could potentially extend to a broad range of commercial activities or interests of the group and its members.
There have been some recent efforts in case law to protect Indigenous nations' economic interests through consultation. In addition to the Court's comments in Gitxaala, in Ermineskin Cree Nation v. Canada,12 the Federal Court held that the duty to consult was triggered by a Crown decision that would adversely affect contractual financial benefits that Ermineskin would receive under two impact benefit agreements with a mining proponent. However, rather than finding that the economic losses were themselves sufficient to trigger the duty to consult, the Court first felt the need to draw a causal relationship between the economic benefits under the agreements and the impacts to Ermineskin's hunting, trapping, fishing and gathering rights for which they were intended to compensate. The Montour approach to rights recognition would avoid this artificial and cumbersome approach, by recognizing that an Indigenous group's economic interests are presumptively protected under its traditional legal system, and are likely also deserving of constitutional protection.
On accommodation, at law, the focus has typically been on reducing, mitigating or eliminating impacts on the exercise of Aboriginal rights. Although financial compensation is a negotiating tool by the Crown and proponents to obtain an Indigenous group's support for an activity or decision and avoid legal challenges, the concept that the honour of the Crown can be satisfied by accommodating impacts with financial compensation has not gained traction in the courts. However, Montour raises the question of whether a violation of a particular right to pursue economic development could be suitably or justifiably accommodated with financial compensation or, instead, whether the mitigation of impacts on the exercise of the right is still the proper focus of accommodation.
In summary, Crown governments and decision-makers should be aware of the developments in Montour and proactively seek to ensure that the scope of consultation and accommodation is cast wide enough to consider potential impacts to Indigenous groups' modern-day economic rights and interests. It is hoped that Montour will open the door to an improved approach to consultation and accommodation that, while still short of achieving free, prior and informed consent, takes a more holistic perspective of the impacts of Crown actions on Indigenous communities, including impacts on economic rights and interests, and which is grounded in both current realities and historical facts.
A step towards recognition of other generic Aboriginal rights
The Court noted that there are many other generic Aboriginal rights, including those set out in UNDRIP,13 that depend upon the right to develop an autonomous economy, such as rights to revitalize cultural traditions and customs, establish and control an education system, and establish Indigenous media.14 By opening this discussion, Montour presents potential opportunities for Indigenous groups wishing to pursue strategic rights recognition to identify and advocate for the recognition and protection of other generic rights. This could potentially also lead to the negotiation and advancement of legislated protections for Aboriginal rights, similar to the federal legislation on children, youth and families, which the SCC upheld as constitutional on February 9, 2024, in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families.15
Footnotes
1. R. c. White et Montour, 2023 QCCS 4154, released November 1, 2023.
2. 2001, S.C. 2002, c. 22.
3. R v. Van der Peet, [1996] 2 SCR 507
4. Montour, at paras. 1309-1310.
5. Montour, at para. 1375.
6. Montour, at para. 1374.
7. Lax Kw'alaams Indian Band v. Canada (A.G.), 2011 SCC 56, at paras. 49-51.
8. Montour, at paras. 1394 – 1405.
9. Delgamuukw v. British Columbia, [1997] 3 SCR 1010, at paras. 166, 169.
10. Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, at paras. 67, 70.
11. 2023 BCSC 1680, at paras. 14, 262, 559.
12. 2021 FC 758, at paras. 100-107.
13. See Articles 3, 4 and 20 of the United Nations Declaration on the Rights of Indigenous Peoples.
14. Montour, at para. 1295.
15. 2024 SCC 5.
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