Introduction
David Ben-Gurion, the founder of Israel, “was infuriated by legal constraints on the sovereignty of the nation and the state”. “They don’t know the meaning of statesmanship”, he griped… “Policy is made by policy makers, not by legalists…The most knowledgeable person in the world knows not just the law but also has common sense”.[i]
Ben-Gurion was trying to create a state in fast-moving, fluid and perilous circumstances, and was frustrated by what he felt was unrealistic, legalistic thinking.
Ben-Gurion’s words about legalists impairing state sovereignty ring true for Canada, but in an almost opposite context.
Our governments, especially our federal government, instead of trying to create a state like Ben-Gurion, are actively taking down and fragmenting our existing, once-healthy Canadian state, to the benefit of Indigenous interests- are actively surrendering large swaths of their national and provincial sovereignty to these interests. Our legalists -our judiciary- rather than fighting this- rather than imposing, to the extent they are able, some commonsensical, legal constraints on these state-weakening and fragmenting government policies- are actively enabling and even extending them.
If a part of “statesmanship” is simply understanding and fulfilling the crucial need for laws that sustain a strong and sovereign state, then our Canadian judiciary is demonstrating through its state-harming, senseless rulings that it no longer understands either the meaning and significance of the state and how their own positions depend on it, or its prima facie duty to, to the extent it is able, prevent legal, economic and even moral harm befalling it.
It is only a strong, healthy and sovereign state, represented in Canada by our Crowns, that, subject to our Charter of Rights, can regulate and protect the rights of the individual- that can best ensure the protection of our environment- that can, through stable and predictable laws, create and protect property rights- that can make and enforce the rules of the marketplace- that is the fount and guarantor of the rule of law- that can best protect the sources of the necessary tax revenue that is required to carry out its many and varied functions and obligations.
As the political philosopher Edmund Burke wrote: “Any society which destroys the fabric of its state, must soon be disconnected into the dust and powder of individuality”: in other words, into legal chaos, with attendant great social, economic and moral harm.
As the state goes so goes state institutions, including its judiciary. Our courts are making radical rulings in Aboriginal rights cases that impair the functioning of the state- rulings completely out of touch with the traditions, values and sentiments of the citizenry, (illustrating that in unstable or decaying times, elites seems to feel no discomfort in their separation from the people). The damage that has resulted from these rulings not only harms the state, but harms the efficacy and indeed, the very legitimacy, of the courts that make them.
These harms have been occurring in Canada since the passage of section 35 of the Constitution Act in 1982, which section recognizes and affirms the existing rights of the Aboriginal peoples of Canada.
Our Supreme Court has interpreted section 35 in such a radical, overly-activist, unforeseen manner- issuing socially divisive, tribalism-endorsing and economically ruinous rulings that have elevated Canada’s “Aboriginal peoples” to a status above and apart from the rest of the Canadian citizenry- making them a de facto third fount of constitutional sovereignty- that it makes more sense to say that our Supreme Court has, on its own, with no democratic participation, amended our Constitution rather than just interpreted it.
By inventing and imposing the duty to consult and accommodate First Nations in relation to all proposed resource projects, a duty innocently conceived but now being cynically and harmfully exploited, the Supreme Court, in addition to permanently weakening Crown sovereignty, has caused serious, ongoing harm to Canada’s economy, and again, by the detached, radical activism inherent in such a decision, harmed its own legitimacy.
The Supreme Court foolishly granted Aboriginal constitutional rights to certain American Indians, thereby giving foreigners the legal right to meddle in Canada’s affairs, and in particular its resource economy.
It has attacked and debilitated British Columbia’s jurisdiction and control over its own land base and natural resource laws to the extent that a B.C. Superior court, following the Supreme Court’s Crown sovereignty-wounding, “Aboriginal title” lead, recently invalidated a crucial part of the province’s mineral exploration law. In future, contrary to over 150 years of well functioning mining laws and practices, a prospector will only be able to stake a mineral claim in B.C. after first consulting and accommodating all nearby First Nations.
Thanks to these rulings it is not unreasonable to contemplate the prospect of B.C. being fragmented into multiple, quasi-secessionist, Aboriginal title fiefdoms, with the Lower Mainland, Victoria and a few scattered cities in the B.C. interior being the last, rump bastions of undisputed Crown sovereignty.
Even the Canadian Charter of Rights and Freedoms is falling victim to the mad tendency of our federal government and our courts- increasingly seen by Canadians as forgetful of what has made Canada great and, in court cases, seemingly biased in favour of the Aboriginal side– to elevate so-called “collective”, tribal Aboriginal rights above non-Aboriginal, individual, human rights.
All across the country Aboriginal legal attacks against the rights and privileges of the federal and provincial Crowns are occurring, well-backed by Supreme Court section 35 jurisprudence and an ahistorical, compliant, sleep-walking, elite class. These attacks have recently been given a rocket boost by the tribalism-promoting, economically suicidal, Crown sovereignty-weakening, Trudeau federal government and its UNDRIP Action Plan.
The Montour case
On November 1st, 2023, ruinously consistent with the above, Canadians were subjected to one of the most serious judicial challenges against their liberal, universalist sensibilities and against the sovereignty, fiscal well being and the healthy functioning of their governments, with the release by the Quebec Superior Court of its decision in the case of R. c. White et Montour, (“Montour”), a blatantly anti-state, pro-tribalism ruling that not only excuses and rewards Aboriginal criminal activity, but it goes further: it attacks the very life stream of our federal and provincial governments- their tax revenue.
Edmund Burke, (above) who on this topic said: “The revenue of the state is the state”, is rolling over in his grave.
The trial judge in this case, the Honourable Sophie Bourque, said that the “litigious practice” in issue before the court was the smuggling into Canada from New York State of 23 fully loaded, 53-foot tractor/trailers of bulk tobacco, and the delivery of same to the Mohawk Kahnawake reserve south of Montreal and to the Six Nations reserve near Brantford, Ontario for processing into “Native smokes”.
The duty required to be paid under the federal Excise Act, 2001 for the importation of this quantity of tobacco, $18,700,000, was of course not paid, such non-payment of duty being the essence of smuggling.
After a two-month jury trial in 2019, Mohawk member Derek White was found guilty of the Criminal Code offences of fraud, conspiracy and gangsterism. Hunter Montour was found guilty of gangsterism.
At the end of a long, 365-page chain of judicial fact-finding and reasoning, each weak link of which endorsed the creation of semi-sovereign, Aboriginal “nation”/substates somehow legally able to exist within and mesh with the Canadian state, each entitled to ignore and have immunity from Canadian tax and criminal laws in favour of dicey “laws” emanating from their own purported “Indigenous legal systems”, Justice Bourque stayed all criminal proceedings against the two convicted criminals, saying that they violated their Aboriginal and treaty rights to “tobacco trade” and thus were “of no force and effect” against them.
The decision is an attack on the rule of Canadian law, and a massive, further blow to the sovereignty and unity of the Canadian state and to its mother’s milk-like sustenance: its tax revenue.
The briefest of overviews of the evidence and arguments at trial, and some commentary thereon
The Mohawk evidence was adduced through, amongst others, two patently biased, conflicted witnesses, Dr. Amber Adams, a non-Mohawk American person who has a Ph.D. in “Indigenous Studies” from the State University of New York at Buffalo, and Kahnewake Chief Curtis Nelson, the latter who at one point early in his evidence, to highlight that he was testifying on behalf of a sovereign, independent nation, (But keep the cheques coming, Canada.), said: “I won’t be a Canadian”. Dr. Adams, to her credit, told the Court that the Mohawk’s oral history evidence was “weakened because of decades of colonialism that prevented the Indigenous communities from maintaining those essential elements and, thus, their ability to adequately represent their version of events”. Ignoring this, the Judge found her evidence (and that of Chief Nelson) to be “unassailably credible”.
The court heard that allegedly there were ten treaties made between the Mohawks and Britain between 1664 and 1760, which together became the “Covenant Chain”, “an overarching, oral meta-treaty”, which created “a permanent relationship of which trade was a central component”, and which guaranteed them, and still guarantees them today, the right to tobacco trade and the right to be consulted at Covenant Chain “council meetings” prior to any proposed Crown action that might affect that right, such as the passage of the Excise Act, 2001.
The Judge found, based on the evidence she heard, that in the minds of the Mohawks the Covenant Chain treaty was a perpetual family alliance, that could never be broken. She wrote: “The British were not merely seen as friends but were adopted and considered brothers. From the Haudenosaunee perspective, family relationships are meant to endure perpetually”.
The court heard much evidence about Mohawk/ “Haudenosaunee culture”. Part of this culture, still today, is allegedly “The Great Law of Peace”, where disputed issues are supposedly discussed at all levels with the objective of “coming to one mind”. The protocols of the Covenant Chain treaty require the Crown to consult and cooperate with the Mohawks in order to reach a negotiated solution- a “one mind” solution- to all disputes regarding the tobacco trade. The vehicle to attain the council meetings’ “one mind” solution/goal was, and, according to Judge Bourque, still is, the Covenant Chain treaty’s mandatory conflict-resolution procedure.
The Judge ruled that treaties can be either written or oral, and the lack of a written form is not fatal to an agreement or a course of conduct, (the latter as in this situation), being recognized as a treaty.
She went on to amazingly conclude in this regard that the absence of any written treaty was not evidence that there was never a treaty. On the contrary. In this case, she ruled, it was “conclusive” evidence that “the British accepted and embraced the Haudenosaunee diplomatic protocol, which included treaties that were not put into writing.” She wrote, citing no direct evidence in support, that “the British were content with the oral nature of the Covenant Chain and opted not to document it in writing.” (!)
For Judge Bourque, the absence of a written treaty conclusively proved, to her satisfaction, the existence of a perpetual, “unextinct” oral treaty.
Based entirely on the purest of speculation and an almost inexcusable, wilful disregard of history, she wrote:
The evidence demonstrates that the British authorities well knew that they were negotiating with free and independent nations, and those nations were able to propose, and in a way even impose the structure of that relationship i.e the Covenant Chain. (emphasis added)
The Judge rejected the Crowns’ (Canada and Quebec) expert evidence and argument that the oral Covenant Chain was not a treaty, but rather was more “a symbol or metaphor for the political and/or military alliance between Indigenous peoples and the British Crown in the 17th and 18th centuries”.
She rejected the Crown’s expert evidence and argument that the British never intended to enter into a perpetual treaty with the Mohawks with this mandatory conflict resolution procedure, and that their conduct during this period, reasonably viewed, never gave the appearance that they intended to enter into such an unusual, unprecedented-in-nature treaty.
Rather, as the Crown argued, these meetings with the Mohawks during the period 1670-1830 (the year of the last council meeting) were, as indicated above, basically just standard, non-binding, diplomacy-as-usual meetings, where each side had only its own, ever-changing notions of its own best interests in mind.
She rejected the Crown’s assertions that neither Canada nor Quebec were ever bound by this ancient, disputed “Covenant Chain alliance-treaty”. In particular, as they argued, whether there was ever a legal treaty or not, and whatever its terms may have been, at the time of the passage of the Excise Act, 2001 and the time of the smuggling after that, it had certainly been rendered extinct by virtue of almost 200 years of changing circumstances and total, mutual neglect.
There was no evidence before the court that the British had actual knowledge that they had been “adopted” and were considered “brothers” by the Mohawks, and that they were thusly, allegedly in the minds of the Mohawks, in a perpetual, legally binding, treaty relationship with them which bound the Crown, even during the long period extending from the 1830’s to the present, during which there were no council meetings and no requests for same, and, as stated, neither party appeared to act as though that pre-1830’s conduct, however it was characterized, had any bearing on or relevance to their ongoing modern relations.
But given this alleged Mohawk perpetual, regardless-of-changed-circumstances, perspective, of which, as the Judge ruled, the British ought to have been aware, she ruled that, based on the principles of the Honour of the Crown and (in effect) detrimental reliance, Canada, as the successor to New France/Lower Canada, is bound now and perpetually into the future by the 1760 Covenant Chain treaty, with its attendant duty to consult and discuss, and its mandatory conflict resolution procedure.
She wrote in this regard in her Summary of her decision:
The many years of engaging in a relationship based on the principles of the Covenant Chain convince the Court that the British were well aware of the significance and meaning behind its words and rituals for the Haudenosaunee. They deliberately used this language because they understood its importance to the Haudenosaunee, and they intended for the Haudenosaunee to take these words seriously and to act upon them. By using them, they sought to establish a genuine and lasting bond with the Indigenous nations, fostering trust and cooperation in the Covenant Chain alliance.
On these words, the Haudenosaunee relied.
The historical records and the historical context clearly indicate that the words and actions of the British demonstrated a genuine willingness to honour the Covenant Chain alliance and to engage in a collaborative process with the Haudenosaunee, reinforcing their commitment to maintaining a strong and enduring partnership based on trust and mutual respect.
The argument presented by the Attorneys General suggest that the British words and conduct were insincere, misleading and even dishonest for over a century. It evokes an enduring pattern of deception and insincerity in their dealings with Indigenous nations.
Such a suggestion should be rejected, because this would contravene the legal principle of the honour of the Crown.
The Crown is presumed to act, and to have acted, honourably in all its dealings with the Indigenous Nations, urbi et orbi, heri et hodi, here and everywhere, yesterday and today….Dishonourable conduct in the past cannot be used to escape obligations in the present…Applying the law to the proven facts means holding the Crown accountable for its actions, irrespective of the time period and ensuring that legal obligations are met in the current context.
The argument questioning the honor and sincerity of the Crown’s historical conduct goes against the goal of reconciliation, which is at the core of s. 35(1). Reconciliation aims to address past injustices, acknowledge historic wrongs, and work towards a more respectful and equitable relationship between the Crown and Indigenous people. Reconciliation requires the cessation of dishonourable conduct or distrust of the past. The honour of the Crown requires a generous and purposive interpretation in furtherance of the objective of reconciliation…Rejecting arguments that hinder reconciliation efforts is essential to achieving that goal.
There are many things wrong with this quoted passage. I mention only a few.
Rejecting a meritorious legal argument simply because it might hinder a Judge’s view of what “reconciliation” should be, is improper. It substitutes legal reasoning with non-legal, overly activist, subjective, “social-justice-today” reasoning.
The Crowns never suggested that their predecessors lacked honor and sincerity. Judge Bourque came up with this herself, setting up such a suggestion as a straw woman argument for her to knock down.
Judge Bourque engaged in pure speculation and clear bias projection about what, 250-350 years ago, the British, who had been fighting a long, colonial war with the French over control of Northeastern North America at the time, were thinking and intending. For her to conclude that their perfectly normal, self-interested (as are all international relations) diplomatic, trade and military relations with the Mohawks, unbeknownst to them, embroiled Britain in an unheard-of-before, perpetual, unbreakable, oral treaty with the Mohawks of Kahnewake, (who were situated on French territory for most of the relevant time), is contrary to history, the practices of nations, common sense and the nature and texture of reality itself.
There was simply no evidence before her that demonstrated a British intention to bind themselves permanently to such an unprecedented, indefinite, (in time and terms), strait-jacket agreement.
There was, on the evidence, clearly no meeting of the minds- no common intention- to enter into such an agreement.
To get to her biased, pre-judged conclusion, she in effect chose to simply deem the British to have agreed to her self-conjured, perpetual “Covenant Chain treaty”, or, in the alternative, as suggested by her quoted words above, she in effect ruled that the British were forced by circumstances to acquiesce in the imposition on them of the Covenant Chain treaty, which despite that being duress, a legal ground for vitiating a contract, she seems to be okay with.
Further, the “honour of the Crown” is a principle of interpretation created by the Supreme Court of Canada after the passage of section 35 of the Constitution Act in 1982. It was not part of Canadian or British Aboriginal law before that. It is not a stand-alone legal cause of action in Aboriginal law. It is only relevant in the context of a post-1982 s. 35 analysis of whether or not a Crown has breached a treaty obligation towards a particular Aboriginal treaty signatory or otherwise breached any other kind of actual or potential Aboriginal right.
By using it to make her amateurish, historical and moral judgment that Britain acted improperly in the 18th century, not only did Judge Bourque misapply the principle, but she also engaged in a spectacular and legally inappropriate act of judicial presentism. She related it 250-350 years back in time to a period when the context was entirely different, and the Honour of the Crown concept was unheard of. She then used Britain’s alleged “dishonorable, deceptive and insincere” conduct, an unargued judicial conclusion for which there was no evidence on the record, and of which she simply and improperly took judicial notice in order to get to the ultimate conclusion she wanted.
Based on this alleged inequitable, unjust and harmful conduct of Britain on which, according to the judge, the Mohawks relied upon to their detriment, she granted them in substance the equitable remedy of imposing on Britain and its successor, Canada, this devoutly- judicially-wished, perpetual Covenant Chain treaty.
She did this for another reason: to provide justification for her new, unprecedented, woke definition of “reconciliation”, which binding treaty-finding she needed to make in order to get to her predetermined judicial goal: a new definition of “reconciliation” which would include as a key component the recognition of “Indigenous legal systems”.
This was key for her in order to be able to rationalize staying the convictions of the two Mohawk smugglers, whose conduct had been adjudged criminal by a jury under the nation of Canada’s Criminal Code. She wanted to vitiate that jury finding on the ground that the smuggling “litigious practice” was “legal” under the Kahnewake nation’s superseding “laws”.
She wanted to get to her goal of ruling that it was and is a legal, Aboriginal right for Mohawks to engage in the “tobacco trade” by means of clandestinely importing, license and duty-free, 23 tractor-trailers loads of bulk tobacco.
The fact that she would be creating a floodgates precedent that would balkanize and mortally wound the rule of Canadian law across the country and that she would be costing the treasury of her own, financially hard-pressed country $18,700,000 in the process, (for starters), was apparently of little concern to her.
Judge Bourque refuses to follow Supreme Court of Canada precedent re “reconciliation.”
The only legal use of the word “reconciliation” by the Supreme Court of Canada is in Aboriginal rights cases, where the Court is analysing whether or not the Crown acted honourably in the particular situation before the court. Honourable Crown conduct, the Supreme Court has written, “which must be understood generously”, is required “if we are to achieve the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown”.
To establish an Aboriginal right which supersedes Crown-passed laws the Aboriginal community claiming it must demonstrate “that a particular practice, custom or tradition is integral to its distinctive culture today…and that it has continuity with the practices, customs and traditions of pre-contact times” (the Van der Peet test).
The present Supreme Court Van der Peet test, focussing on the pre-contact period, generally “freezes” Aboriginal rights to those practiced at the time of the particular First Nation’s first contact with Europeans, and continuously practiced up to the present time in issue.
The Mohawks here could not sufficiently prove that they traded in tobacco at the time of first contact with Europeans- with the Dutch in the early 1600’s- and that they then continued to engage in the tobacco trade up to the date of the impugned “litigious practice” i.e., the smuggling. The evidence showed that they only started seriously trading in tobacco in the mid-1980’s.
Thus, under the Supreme Court Van der Peet test the Mohawks could not prove that trading in tobacco was an Aboriginal right protected by section 35.
So, citing the need to “presumptively conform” with Trudeau’s UNDRIP Action Plan (above), and citing “changes in circumstances that fundamentally shift the parameters of the debate”, Judge Bourque ruled that she was not bound by the restrictive Van der Peet Supreme Court test. She correctly said that “it is questionable whether the current test can be applied in the context of commercial rights with economic significance in modern times”.
In this regard she approvingly adopted Minister of Indigenous and Northern Affairs Carolyn Bennett’s witless, gushing, 2016 political endorsement of UNDRIP “without qualification”, and her statement:
It’s about righting historical wrongs. Its about shedding our colonial past. Its about writing the next chapter together as partners…By adopting and implementing the Declaration, we are excited that we are breathing life into s. 35 and recognizing it now as a full box of rights.”
The Judge said that this endorsement “speaks volumes”.
Judge Bourque wrote that Prime Minister Trudeau’s decision to adopt the UNDRIP “without qualifications” shows that Canada intended to elevate UNDRIP “beyond an aspirational, non-legally binding document that does not change Canadian laws”.
She opined:
“Since Van der Peet knowledge about Indigenous peoples’ life in Canada has tremendously evolved. Numerous chapters of Canada’s history have been revealed, notably through the 1996 Royal Commission on Aboriginal Peoples (RCAP), the 2015 Truth and Reconciliation Commission (TRC), and the 2019 National Inquiry into Missing and Murdered Indigenous Women and Girls…These public inquiries have shed light on dark times in Canadian history”.
She cited Prime Minister Harper’s apology for the residential school system and the creation of a National Day of Truth and Reconciliation.
She cited the Trudeau government’s adoption of its country-damaging (the writer’s words) Principles Regarding the Government of Canada’s Relationship with Indigenous Peoples, (linked to above) which tout throughout Indigenous self-government under Indigenous “systems of laws”.
She referred to the “subjugation” of Indigenous peoples by the Van der Peet test.
She wrote:
“The entire social landscape in which Van der Peet was decided has changed…In this difficult exercise of interpreting s. 35(1) courts must be led by the objective of reconciliation…It is time to enter an era of reconciliation…where the question is, (in addition to Van der Peet considerations), how to reconciliate sovereign peoples through the recognition of Indigenous peoples’ rights”.
She then went on to invent a more Indigenous sovereignty-friendly test that would “encompass the notion of reconciliation between sovereign nations” or would “conciliate the existence of the interests of two sovereign nations in a reconciliation perspective” (italics added).
Judge Bourque invents a new definition of “reconciliation” and a new “Aboriginal reconciliation right”.
Judge Bourque wrote that the new legal meaning of reconciliation requires:
“…as the Preamble of the UNDRIP Act recalls, to reject all forms of colonialism …It must recognize modern rights with economic impacts that could help realize other important Indigenous rights, such as the right to develop an autonomous economy…the right to revitalize cultural traditions and customs, the right to establish and control an education system, the right to establish Indigenous media. Without independent financial leverage, most collective rights are just empty shells”.
Based on the above, (and the 280 pages of her written Decision before that), Judge Bourque concluded that, in relation to the question of whether a contested activity or practise is a section 35-protected Aboriginal right- now in effect a protected “Aboriginal reconciliation right”- (my coinage) that would take precedence over Canadian law, is answered by determining:
…whether the activity or practise under consideration is the exercise of a right protected by the traditional legal system of the Indigenous peoples claiming the right.
The Aboriginal reconciliation right need only be identified by the person or group claiming its protection, proven to be part of the Aboriginal claimant’s legal system, and shown to be exercised.
No problem identifying these rights. According to Judge Bourque they are apparently self-evident and need only be declared. As she wrote:
“The UNDRIP recognizes inherent right that Indigenous peoples have, as peoples. In the philosophy of the UNDRIP, Indigenous peoples do not have to prove their rights, right by right, group by group. They are generic rights inherent to Indigenous peoples by the sole fact that they are Indigenous and that they are peoples”.
(Well, that’s clear!)
And no problem proving that the contested activity or practise is legal in accordance with the relevant Indigenous legal system. Just as in the Montour case before her, get a biased, conflicted Aboriginal “expert” to testify that it is.
Judge Bourque:
“The evidence for traditional Indigenous legal systems could be made in a number or ways. For instance, an expert in Haudenosaunee law could share his expertise with the Court, an elder could testify about relevant oral tradition or meta-narratives, or a chief could testify about his deep knowledge of his culture. Historical evidence would still be part of the proof. The UNDRIP would be one of the sources to consider…All these elements would be part of the grab bag available to the Court in determining if a right is part of the legal tradition of an Indigenous society for the purpose of s. 35(1). Some rights could even be generic, benefitting from a presumption that they are protected under traditional Indigenous legal systems because of their universal nature.”
Judge Bourque applies the new definitions to the facts of the Montour case and declares that Mohawk “tobacco trade” smuggling activity is a s. 35(1)-protected Aboriginal reconciliation right.
Dr. Gerald Taiaiake Alfred testified as an expert witness for the Mohawks. Court was told that Dr. Alfred obtained his Ph.D. in the field of government from Cornell University in 1994. The title of his thesis was Kanawake Mohawk Politics and the Rise of Native Nationalism. A few of his fields of scholarly and professional interests are “Indigenous resurgence”, “decolonization” and” Indigenous-State relations”.
Dr. Alfred testified to “a strong attachment amongst the Mohawks of Kahnawake to their right to self-government and a deep conviction that the protection of their right to self-government is dependant on an autonomous economy”.
Judge Bourque referred to UNDRIP, which states amongst other things that Indigenous peoples have the right to pursue economic development and to maintain their own legal systems.
She referred to the 1997 RCAP, Trudeau’s Principles (above) and a recent government report, all of which said that Indigenous peoples have the right to pursue their own economic development.
She pointed to the written tobacco policy of the Kahnawake Tobacco Association, called the Draft Kahnawake Tobacco Law, as an illustration of the right to pursue freely economic development being “protected by the traditional legal system of the Mohawks of Kahnawake.”
Finding of Crown Unjustified Infringement of Aboriginal Reconciliation Right
Based on the above Judge Bourque ruled that” the right to pursue economic development is protected under the traditional legal system of the Mohawks of Kahnawake”, and that
“…the actions of (Montour and Hunter) that have been criminalized were done pursuant to the right of their community to freely pursue economic development…Taken as a whole the regulatory scheme (of the Excise Act, 2001) places unreasonable limits on them on the exercise of their Aboriginal right, imposes undue hardship on them as holders of the right, and could deny them their preferred means of exercising that right”.
In making that finding Judge Bourque rejected the Crowns’ arguments that public health, public security, reduction of organized crime and raising revenue for the government were justifications for the Excise Act 2001 and the Criminal Code convictions of Hunter and Montour.
Finding of Crown Unjustified Infringement of Covenant Chain Treaty
Judge Bourque said that the evidence showed that it was well-known since the 1990’s that trade and commerce were subject matters on which the Mohawks had expectations of negotiations on as the basis of a new relationship and that the Mohawk Council was at all relevant times willing to discuss issues regarding tobacco with Canada; “a live issue covered by the Covenant Chain”.
She said that Canada made no attempt to engage in any such discussions, for which she heard “no reasonable explanation” from Canada. (On the other hand, the Judge cited no evidence demonstrating that the Mohawk Council itself ever specifically asked for a Covenant Chain council meeting, leading one to conclude that they weren’t even aware of existence of this purported treaty. Treaties are two-way streets.)
Accordingly, she ruled that Canada unjustifiably infringed the constitutional right of the Mohawks and/or Hunter and Montour, (she confusingly fails throughout to distinguish between the Mohawk collective and these two individual convicted criminals), to discuss “live issues” under the Covenant Chain, and in particular, to discuss disagreements about the tobacco trade prior to the adoption of the Excise Act, 2001.
As she wrote:
“The evidence demonstrates that the Crown did not discuss tobacco-related issues with the Mohawks to any relevant degree, much less with an open mind, and even less with the intention of coming to one mind in accordance with the Covenant Chain’s precepts”.
In making her ruling in this regard Judge Bourque rejected the Crowns’ arguments that the failure to so discuss and consult was justified by the compelling and substantive objectives of, again, “protecting public health, public security (fighting organized crime), national security (border control and fighting trafficking and smuggling), reducing organized crime and raising revenue to finance programs and services for Canadians, including Indigenous communities”.
None of these public objectives, the Judge ruled, were as important as protecting the Aboriginal and Covenant Chain treaty rights of Hunter and Montour, and the Mohawks of Kahnawake generally, to engage in smuggling 23 tractor-trailer loads of tobacco into the country and depriving the Treasury of Canada of $18,700,000 of tax revenue now, and, based on her ruling, given the fact that tobacco smuggling across Canada is already costing the Canadian treasury $2 billion annually, which Canadian taxpayers have to make up with higher taxes, depriving the treasury of much more in the future.
Brief and Incomplete Criticisms of Aspects of the Judge Bourque’s Judgment
To the extent that the writer’s disapproval of almost everything about Judge Bourque’s decision has already not been either expressly or impliedly expressed, the writer offers the following, few, bullet-style, additional questions, criticisms and comments. If space and the reader’s patience and attention span were infinite, so would be the number of additional criticisms, because the kind of weak and selective judicial reasoning exhibited by this ruling is fatal to the ongoing viability and functioning of the Canadian state, and thus deserves a much longer and better criticism than this retired, provincial lawyer can provide.
– “Aboriginal peoples” are people who were already living in what is now Canada at the time of first contact with Europeans. Mohawks were not living in Canada when the French first arrived and settled. Only the Algonquins lived in southern Quebec. The Mohawks lived near present-day Albany, New York. In 1667 they were first invited to move to the St. Lawrence Valley by the government of France and by French Jesuits, in order to, amongst other things, learn more of the Christian religion. They wanted this, accepted the invitation, (giving the lie to “forced assimilation”), and so migrated to New France, and in particular to what is now Kanhawake, Akwesasne and Kanesatake. It is strongly arguable that it’s a myth that Mohawks are Aboriginal peoples of Canada. Judge Bourque acknowledged this history but indicated that it was legally insignificant. It was very significant.
-Judge Bourque was enamoured by the evidence of Dr. Amber Adams, the American Indigenous Studies Ph.D. She testified that “in Haudenosaunee law there is no principle that either applies to or leads to the extinction of a treaty”. She testified that “according to the Great Law of Peace, the objective of resolving conflict involves repairing the chain through councils and never breaking it”. She testified that “Haudenosaunee languages have no word for “coercion”, such as “must”, “have to”, “shall not”. As a result, she said:
“Haudenosaunee law is not based on punitive consequences for unacceptable behaviour, but rather, is oriented toward finding the best possible action…. The Haudenosaunee’s…legal system’s entire orientation does not need to focus on enforcing consequences for harmful action. It can emphasize a duty to work for the greatest good possible in a given situation. In other words, Haudenosaunee law is not predicated on the question: How much bad behavior can I get away with before the legal system stops me?”, but, rather, “What are my responsibilities in working for the greatest good?”
Judge Bourque based her finding that the Covenant Chain treaty was perpetually binding on the British, and on Canada, and is still binding on Canada, on the basic ground that the Mohawks were so inherently peaceful, reasonable, empathic, conciliatory, accommodating and constructive that they couldn’t even imagine an agreement they made with “family” ever coming to an end in any way. They always worked things out peacefully after “council meetings”.
This is absurd.
Famed Canadian Anthropologist Diamond Jenness, wrote what was for the decades in Canada the premier academic authority on Indigenous peoples. The Indians of Canada, published by the National Museum of Canada, went through six editions and eight printings between 1932 and 1973.
He wrote the following about the Mohawks, countering Dr. Amber Adams’ fabulist, Disney-like drivel about the Mohawks, their alleged peaceful ways and their alleged “Great Law of Peace”:
“The Mohawks of the seventeenth century were the most aggressive nation in the (Iroquois) confederacy and at the same time, perhaps the most savage. Its war parties raided Ontario and Quebec almost to the shores of James Bay so that even today the mere mention of its name causes a shudder of fear and hatred in the hearts of many Ojibwa, Cree and Montagnais. Although the rules of the confederacy strictly prohibited cannibalism, we find records of several cases in which the Mohawk cruelly sacrificed a prisoner to their war-God Aireskoi and divided up the body to be devoured in different villages…in the later wars of the eighteenth century they and all other Iroquois conducted themselves in fairly close accord with the rules that were prevalent among European nations at the time.”(Italics added.)
In other words, they practiced war, peace and diplomacy in the same way, with the same attitudes and assumptions, as the British and the French, but with a little extra savagery, kidnapping, torture and cannibalism thrown in.
As to the alleged absence of coercion, force or punishment in the Mohawk “legal system”, Mr. Jenness wrote:
In the absence of chiefs and of any legislative or executive body within the tribes and bands, law and order depended solely on the strength of public opinion. There were no written laws of course; merely rules and injunctions handed down by word of mouth from immemorial antiquity, and more temporary taboos operative during the lifetime of an individual. Persuasion and physical force were the only methods of arbitrating disputes, social outlawry or physical violence the only means of punishing infractions of the moral code or offences against the welfare of the band or tribe…. Strangers however, even people of a neighbouring tribe, might be killed or robbed with impunity; they had no rights, unless they married into a band or placed themselves under the protection of some powerful family.
If there was no organization for the submission of disputes to arbitration or for maintaining law and order within the communities, neither was there any organization for prosecuting war with neighbouring peoples. (italics added)
The Indians of Canada completely undermines the factual basis upon which Judge Bourque found that the Covenant Chain was a legal treaty perpetually binding the British and by extension, Canada.
-Judge Bourque heard from Mohawk witnesses Amber Adams, Chief Nelson and others an extensive array of historical facts, details and viewpoints spanning multiple centuries and involving the histories of various nations. She heard, analysed and had no problem “conclusively” accepting it all.
Yet she inexplicably acted completely differently in dealing with the expert evidence of Crown witness Professor Alain Beaulieu, who, since 1999, has been a professor in the History Department at the University of Quebec at Montreal, and had been declared a qualified expert witness by courts in 14 previous cases. He testified that the Covenant Chain is not and was never intended to be an unbreakable treaty. He testified that it was a mere, temporary political alliance that could be ended by either side at any time.
A Judge’s duty is to grapple with competing witnesses’ versions of litigious events through methods of judicial fact review and reasoning. That’s his/her job.
Judge Bourque failed to do her job with respect to Professor Beaulieu’s cogent evidence. She basically said his evidence was “over her head” to deal with, and thus she bailed on her duty to do so, by failing to give reasons for rejecting his evidence, committing a reversible error, (amongst many). In this regard, clearly showing her bias against the Crowns, she jaw-droppingly wrote:
The Court makes no reproach to Prof. Beaulieu, who is an outstanding historian and delivered and enlightening and engaging testimony. However, in a case like this, which spans multiple centuries and involves the histories of various nations, the Court felt overwhelmed by the extensive array of historical facts, details and viewpoints that Professor Beaulieu provided. Assessing and analysing such evidence would demand a level of expertise that the Court lacks”. (!)
-Assuming there was a legal treaty, it was made between the British and New York State Mohawks. The ambit of the treaty could only have been the physical territory to which each had a claim i.e. present day New York State. It had no validity in the St. Lawrence Valley, which was French territory. New France was not bound by it. Thus today, neither Quebec nor Canada should be bound by this treaty, which was made in a foreign country and dealt with foreign lands.
-The Judge wrote that “two civilizations encountered one another” in present-day New York State in the 17th and 18th centuries. All the dictionaries define a “civilization” as an advanced society with towns, maybe cities, and writing. The Mohawks at the relevant time did not make up a “civilization”. They constituted a small, paleolithic, pre-literate band or tribe. Judge Bourque made a totally false equivalency here, which pervades her judgement, and in fact pervades and poisons today all rational discussion of the situation, past and present, of the Aboriginal peoples of Canada.
-As confirmed by Diamond Jenness, above, common sense and the most cursory knowledge of history and human affairs must lead one to conclude that Aboriginal “law”, qua law, and “Indigenous legal systems” are romantic myths. Myths should not be the basis of convicted smugglers- convicted according to real, state-created and state-enforced laws- getting off scot-free. To put It mildly, it’s very bad for the country.
– Judge Bourque, as justification for declining to follow the Supreme Court of Canada’s more restrictive meaning of “reconciliation” and then inventing and applying a more “modern” version that permitted her to use “Indigenous legal systems” as a basis for letting the smugglers, walk, cited “changes in circumstances that fundamentally shift the parameters of the debate”.
She listed a press release statement of Carolyn Bennett, Harper’s apology for residential schools, and the RCAP, TRC and Murdered and Missing Women and Girls reports, the latter of which she said, “revealed numerous chapters of Canadian history”, hitherto unknown, which revealed “dark times” experienced by Indigenous peoples which now demand that we “shed our colonial past” and “right historical wrongs”. All these, she said, were the “changes in circumstances” justifying her departure from the principle of stare decisis, which obligates a lower court to follow precedent set by a higher court.
In fact, there have been no changes in circumstances in facts “on the ground”. The only significant changes that have occurred is in the perception of the past and present situation of Indigenous peoples in Canada. Grievance and identity politics have taken over. There has been an historical forgetting of true Indigenous history, to the extent that it is now dominated by academic, media, government and court-backed false Indigenous history. Indigenous history has been obscured, not revealed, over the past 20 years.
Those Royal Commissions were shallow, ahistorical, dishonest, grievance-obsessed boondoggles, that stupidly blamed all present Indigenous social ills on “colonialism” and residential schools.
Substituting a new UNDRIP-based form of racial segregation and racial exceptionalism is no way to purportedly “right” the old, segregationist “historical wrongs” of reserves and the Indian Act.
Residential schools mainly helped those Indigenous youth who attended them. That they are described as by the TRC and the Murdered and Missing Woman Girls report as “genocidal” is a ridiculous, insulting, shameful, blood libel against all our non-Indigenous ancestors.
Indigenous peoples have benefitted from colonialism, and the relatively peaceful, civil and conscientious manner by which France, Britain and now Canada have carried out the historically inevitable colonization of what is now Canada. (Would Judge Bourque rather Canada, and Quebec, be part of the United States?)
None of these reports and statements were properly entered into evidence. Judge Bourque improperly took judicial notice not only of their existence, but of the truth of their contents. This was highly improper. Judges are only supposed to base their evidence on relevant facts and documents properly made part of the record through witnesses, as exhibits, and subject to cross-examination.
-However, Judge Bourque was correct to name UNDRIP as a legitimate, change in circumstances.
With the enactment of UNDRIP into domestic Canadian law the Trudeau federal government, and the B.C provincial government, which enacted similar legislation, and our courts, which are enthusiastically embracing and applying it, as Judge Bourque did, have all jointly handed a loaded gun to well-heeled Indigenous interests, and invited them to, while being careful not to kill the Golden Goose, shoot and pistol-whip Canadian state sovereignty to their hearts’ content and to the limit of their always-well-paid, Indian Industry[ii] lawyers’ imaginations.
-Final bullet point: What is a meta-treaty? The Judge never explains or defines it. This again is a failure of judicial reasoning, which must focus on the judicial reasoning process and on guidance on the matter at hand for the benefit of other courts, higher courts (in the event of an appeal), lawyers, and the public in general. Dictionary definitions of this ancient Greek word, now only recently been used in modern contexts, leave the reader totally confused. What did Judge Bourque mean? The reader of this interminable, profound judgement shouldn’t have to ask this question about a major judicial finding central to the disposition of the such an important, precedent-setting case.
The need for a new, overarching legislative and judicial meta-interpretation principle in Aboriginal rights cases.
The Oxford Languages online dictionary provides a somewhat intelligible definition of this elusive-in-meaning word: “Of a creative work, referring to itself or to the conventions of its genre: self-referential”.
The search for the right meaning of this hard-to-pin-down word, and how a treaty could be a “meta treaty”, led the writer to a… meta-insight.
Our legislatures and courts must reverse their anti-state, UNDRIP-promoting course, and develop and be governed by an overarching, pro-state sovereignty, meta-interpretation principle applicable to all laws, legislative initiatives and court rulings relating to tribalist “Aboriginal rights”, which “deny human universality and personal individuality”,[iii]and are thus fundamentally illiberal and anti-Enlightenment.
With respect to each applicable law, legal initiative or court ruling, in all but Charter of Rights cases, the meta-question must first be asked: “Will it promote or harm state sovereignty?” If the answer is “harm”, then they must change the law or legal initiative to remove the harm, and in case of a proposed court ruling, the Judge must give as much of an aggressively favourable interpretation promoting state sovereignty as the context of the case will reasonably bear.
As the above review amply shows, the Montour case could easily and reasonably have been decided the opposite way- in favour of promoting Canadian state sovereignty and the necessary hegemony and rule of Canadian law-in favour of protecting the revenue of the Canadian state (out of which this Judge’s huge salary is paid)- had Judge Bourque been governed by this suggested pro-state sovereignty meta-interpretation principle.
This principle should be the basis for the federal and B.C. governments repealing their Panglossian, suicidal UNDRIP legislation, and should be the basis for the federal government not going forward with its proposed amendments to the federal Interpretation Act, which will mandate that all federal laws be ”consistently interpreted to uphold, not diminish, Aboriginal and treaty rights”.
There should be an amendment of that statute to the opposite effect: “All federal laws be consistently interpreted to uphold, not diminish, the sovereignty of the Crown”.
Judges have almost as much responsibility as legislators to do their part to maintain the fundamental, essential institutions of a well-functioning state, which depends upon the rule of Canadian law being applied equally to all its citizens, regardless of race. The integrity of their courts and of their own roles in the court system depend on that.
David Ben-Gurion railed against “legalists”, with their lack of common sense, imposing constraints on the nascent sovereignty of the Israeli state. As stated, Canada has a similar problem but in an opposite context: Our legalists are senselessly weakening and harming the former proud, necessary, justified, productive and in all other ways beneficial sovereignty of our Canadian state, and, in the process, not only seriously damaging and undermining their own fundamental interests, but causing the opposite consequences for Indigenous peoples to occur than intended: a civically infantile, harmful separation from their fellow Canadians, where all Canadians lose, especially Indigenous peoples.
Legislators and judges must realize that the country is in an existential struggle here.
Canada risks becoming a failed state unless the absolute sovereignty of its duly elected legislatures is restored, subject to the Charter of Rights. In this struggle our legislators and judges- our elites generally- must stop being so “liberal”- so “broadminded”- that they are unable even to take their own legitimate and necessary sides in this struggle.
It shouldn’t be such a big ask.
The demand- essentially a demand for equality under the law for all Canadians- the same demand that Nelson Mandela, Gandhi and Martin Luther King made in their respective countries- is a demand that Canada end its benignly racist, legally sanctioned tribalism, revive and walk its classically liberal talk, and once again, after the quick ending of this illiberal hiatus occasioned by the passage and interpretation of section 35 of the Constitution Act, go with, no longer against, the general spirit of the Canadian people, and strive to adhere in its laws and court rulings to our highest and best universalist, Western Enlightenment values.
Its time for our elites to work towards the restoration of Champlain’s dream of racial unity and equality between Indigenous and non-Indigenous Canadians.
For, as anti-tribalist thinker Ako Seki-Otu[iv] argues:
“…race obstructs our perpetual horizon, distracts us from attending to other foundational questions of human being and social existence, so we should move on to those other questions, questions we would still have to address were the domination of a racist culture as a world system ever to come to its long overdue end.”
The time is fitted for this duty.
Peter Best
Sudbury
November 28, 2023
[i] From A State at Any Cost- The Life of David Ben-Gurion, by Tom Segev, translated by Haim Watzman, Picador/Farrar, Straus and Giroux, New York, 2020, at pages 482 and 483
[ii] A phrase used by British Columbia Aboriginal writer/lawyer/businessman Calvin Helin, the son of a Tsimshian Nation Chief, In his book Dances with Dependency- Out of Poverty Through Self-Reliance, (Ravencrest Publishing, Woodland Hills, California, 2008). Mr. Helin writes:
“If lasting solutions are to be found (to eliminate the dependency mindset forged by welfare economics), the real Aboriginal social and political problems must be discussed openly and frankly…Aboriginal citizens must squarely face the Industry of Non-Aboriginal Hucksters and “consultants”, and those Aboriginal politicians who are openly profiting from this sea of despair and poverty. Is spite of what they say, this “Indian Industry” has no real interest in changing a system from which they are profiting”.
[iii] From Susan Neiman’s Left is not Woke, Polity Press, Cambridge, England, 2023
[iv] From his book, Left Universalism, Africacentric Essays (New York: Routledge, 2019), quoted in Left is not Woke, above.
