Quebec appeals 'landmark' decision recognizing Kanien'keh:ka treaty right to trade tobacco

Quebec is appealing a ruling last year that stayedproceedings onchargesrelated to tobacco trade against two Kanien'keh:ka (Mohawk) men, citing treaty rights.

The Attorney General of Quebec and director of criminal and penal prosecutions filed a notice of appeal in December regarding a Quebec Superior Court judge's decision to stay proceedings against Derek White and Hunter Montour, both from Kahnaw:ke, south of Montreal, for importing untaxed tobacco.

According to the appeal, Justice Sophie Bourque "erred in principle, in law and in fact" in her nearly 400-page decisionin November that has been described as a "landmark"ruling.

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 (UNDRIP), and their inherent rights as Kanien'keh:ka to trade tobacco tax-free.

The appellants disputeBourque's declaration that section 42 of the Excise Act constitutes an unjustified infringement of Montour and White's Aboriginal and treaty rights, andthe order staying the criminal proceedings, among other aspects of her ruling.

The appeal argues that the judge erred in law and in fact in concluding that the Covenant Chaina series of agreementsstarting in the 1700sbetween the Haudenosaunee Confederacy and British colonies that included the right to trade is an unextinguished treaty of peace and friendship and that it includes a conflict resolution procedure. Itarguesthat she also erred in law in her interpretation of the UNDRIPand made errors of fact in assessing the credibility of certain expert witnesses.

In an emailed statement, a representative of Quebec's ministry of Justice said it will not comment on the case out of respect for the legal process.However, the appeal doesn't come as a surprise from those involved with the case.

"It was always going to happen, and we all assumed that from the beginning," said Nathan Richards, one of four lawyers on the case representing White and Montour.

"The judge would make remarks from time to time that 'no matter what I decide, it's going to be appealed.' Andshe was right about that."

Richards said the appeal process is expected to be long, and believes the case could end up before the Supreme Court of Canada.

Gerald Taiaiake Alfred, aKanien'keh:ka scholar from Kahnaw:kewho testified for the defence as an expert witness on Indigenous governance and the community's politics, said of the appeal,"What they're asking for is for us to keep our minds within the Canadian legal framework and to operate in the parameters of legal precedents that have been set by white reasoning and to not bring in Native understandings of law and to exclude Native understandings of law, to disregard First Nations knowledge of what our past was and what our treaties are and what they mean."

Regardless of the outcome,Alfred said the case still has significant impacts.

"I think the significant impact is in Kahnaw:ke, in validating the perspective that we have," he said.

"I can't see other communities right now disregarding that. But I also think that because of the appeal, it's not having the ripple effect that other people would anticipate having and know that's going to have to wait for the appeal."