A Quebec Superior Court judge on Wednesday ordered a stay of proceedings on charges related to the tobacco trade against two Kanien’kehá:ka (Mohawk) men, citing treaty rights.
Derek White and Hunter Montour, both from Kahnawà:ke, south of Montreal, have been granted a permanent stay of criminal proceedings on charges related to the Sûreté du Québec’s largest operation targeting a cross-border tobacco smuggling ring.
“A lot of weight has been lifted off my shoulders,” White told CBC Indigenous on Thursday.
In 2019, a jury acquitted White of charges of defrauding Quebec of $44 million in tobacco taxes, but found them guilty of federal charges of failing to pay excise taxes on tobacco products.
The couple had asked for a stay of the proceedings, arguing that the government had violated their constitutional rights under Section 35, as well as the United Nations Declaration on the Rights of Indigenous Peoples, and inherent rights as Kanien’kehá:ka to trade in tobacco taxes. free.
The chain of the covenant
The pair cited the Chain of Covenant, a series of agreements that began in the 18th century between the Haudenosaunee Confederacy and the British colonies that included the right to trade.
While the Crown argued that the Chain of Covenant was not a treaty, Judge Sophie Bourque concluded in his nearly 400-page decision which was still binding.
He also ruled that the federal Excise Tax Law “unreasonably infringes” Section 35 and the defendants’ treaty rights, and ordered their sentences suspended. He wrote that the government also failed in its duty to consult with Haudenosaunee, including Kahnawà:ke, on the adoption of the Excise Law.
“It’s going to benefit everyone,” White said of the decision.
Montour echoed similar sentiments.
“It’s a history-changing event,” he said.
“We’ve always been talking about this, we’ve always known about it, but no one listened to us, especially the government.”
The Mohawk Council of Kahnawà:ke (MCK) described it as a “historic decision.” In a news release Wednesday, MCK said it will conduct a comprehensive legal analysis of the decision, but congratulated White and Montour.
“The judge significantly understood the true essence of the nation-to-nation relationship between the Haudenosaunee and Canada,” Ohén:ton Í:iente ne Ratitsénhaienhs (Grand Chief) Kahsennenhawe Sky-Deer said in the statement.
“Not only did he capture the spirit and intent of the Chain Covenant, but he also understood that Aboriginal rights cannot be frozen in time and are living, breathing rights.”
The trial took place between October 2021 and April 2022. The Council of Chiefs of the Mohawk Nation, a traditional government, was authorized to intervene in the case to present evidence of a Kanien’kehá:ka perspective.
His attorney Paul Williams said the most important part of Bourque’s decision is the recognition of the Covenant Chain relationship.
“We’re talking about relationships almost entirely within Indigenous legal systems rather than within the Crown common law system. That’s important,” he said.
“A relationship like this is permanent. It cannot be terminated unilaterally by one of the parties.”
James O’Reilly, one of four attorneys in the case representing White and Mountour, also said he considered the case to be precedent-setting.
“This is a judicial initiative in some respects. The result is, basically, that the tobacco trade in Kahnawà:ke is constitutionally protected,” O’Reilly said.
“It’s a pretty fantastic development when you think about all the problems the Kahnawà:ke Mohawks and other groups have suffered.”
O’Reilly said that while the government is likely to appeal, the ruling remains a “firm statement from the court.” He hopes it will be an “extremely helpful decision” for Indigenous peoples across Canada asserting treaty rights.
Canada’s Attorney General referred a request for comment on the decision to the Canada Revenue Agency, which has not yet commented. CBC Indigenous also asked Quebec’s Attorney General for comment, but did not receive a response at the time of publication.