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Court and Tribunal Decisions - Canada
Supreme Court of Canada (McLachlin CJ and Gonthier, Iacobucci, Major, Binnie, Arbour and LeBel, JJ)
24 May 2001
Aboriginal rights to trade — nature of aboriginal rights — characterisation of aboriginal rights — whether activity or practice is part of the broader aboriginal right — evidentiary concerns for proving aboriginal rights — approach for the adoption of evidence in aboriginal right cases — whether aboriginal right is incompatible with Canadian sovereignty.
The Mohawks of Akwesasne and Tyendinaga intended to renew their historic trading relationship. In 1988, Grand Chief Mike Mitchell brought goods (blankets, bibles, motor oil, food, clothing and a washing machine) purchased in the United States across the international border into Canada. All goods except the motor oil were gifts to be presented to the Tyendinaga community who would witness the re-establishment of their trade relations. The motor oil was to be resold in Akwesasne to members of that community. Chief Mitchell declared goods to the Canadian customs agent, but refused to pay any custom duties. He claimed he had an aboriginal right to bring goods across the Canadian–United States border for the purposes of trade. The customs agent notified Chief Mitchell that he would be charged $142.88 in duty. In 1989, Chief Mitchell was served with a Notice of Ascertained Forfeiture claiming $361.64 for unpaid duty, taxes and penalties. Chief Mitchell sought declaratory relief.
McKeown J of the Federal Court (Trial Division) agreed that Chief Mitchell had a right to bring items across the border, duty free, subject to the limitation that such items be used for personal and community use and non-commercial scale trade with other First Nations. He further held that the Customs Act did not extinguish the aboriginal right. The Minister of National Revenue appealed. Sexton JA, Isaac CJ of the Federal Court of Appeal affirmed the trial judges finding but limited the right to the traditional geographic range of Mohawk trading. Letorneau JA of the same court would have further narrowed the right by requiring Mohawks to report goods brought over the border for trade purposes and pay customs duties to custom officials.
The Minister of National Revenue appealed the Federal Court of Appeal decision to the Supreme Court of Canada.
(Appeal allowed, aboriginal right not established, custom duties applicable on goods imported into Canada, lower court decisions overturned).
Per McLachlin CJ (Gonthier, Iacobucci, Arbour and LeBel JJ concurring):
1. The proper characterisation of right claimed is whether or not the Mohawks have ‘the right to bring goods across the Canada-United States boundary at the St Lawrence River for the purposes of trade’. The claimed right is best characterised as a right to trade simpliciter. This trading right is a mobility right.
2. The trial judge made a ‘clear and palpable error’ when he found that Chief Mitchell had a cross-border trading right.
3. There was insufficient evidence to support the aboriginal right claimed. Evidence at trial did not show that Mohawk trade relations with other First Nations north of the St Lawrence River was vital to the Mohawk’s collective identity nor that such northerly trade was a defining feature of Mohawk culture. Geographical considerations taken into account did not show that trading was integral to the Mohawk’s culture. Any such trade was clearly incidental to Mohawk culture. The evidence did not show that the right claimed was an ancestral practice of the Mohawk.
4. The aboriginal right claimed has not been established. There was no need to address questions of extinguishment, infringement, and justification. Any Mohawk practice of cross-border trade, even if established on the evidence, would be barred from recognition under s 35(1) as incompatible with the Crown’s sovereign interest in regulating its borders.
5. Custom duties are applicable to goods brought over border by Chief Mitchell.
Per Binnie JJ (Major J, concurring):
6. Agreed with majority that there was insufficient evidence to establish the aboriginal right claimed. The practice of trading north of the St Lawrence River was neither a defining feature of Mohawk culture nor vital to their collective identity.
7. Even if evidence supported an international trading/mobility right claimed by the respondent, this right would be incompatible with the historical attributes of Canadian sovereignty. The claimed aboriginal right would not have survived Canadian sovereignty. There was nothing in existence in 1982 to which s 35(1) protection of existing aboriginal rights could attach.
...
8. The issue on appeal is whether Chief Mitchell has an aboriginal right which precludes the imposition of duty under the Customs Act on certain imported goods. ...
...
...
12. In the seminal cases of R v Van der Peet [1996] 2 SCR 507, and Delgamuukw, supra, this Court affirmed the foregoing principles and set out the test for establishing an aboriginal right. Since s 35(1) is aimed at reconciling the prior occupation of North America by aboriginal societies with the Crown’s assertion of sovereignty, the test for establishing an aboriginal right focuses on identifying the integral, defining features of those societies. Stripped to essentials, an aboriginal claimant must prove a modern practice, tradition or custom that has a reasonable degree of continuity with the practices, traditions or customs that existed prior to contact. The practice, tradition, or custom must have been ‘integral to the distinctive culture’ of the aboriginal peoples, in the sense that it distinguished or characterized their traditional culture and lay at the core of the peoples’ identity. It must be a ‘defining feature’ of the aboriginal society, such that the culture, would be ‘fundamentally altered’ without it. It must be a feature of ‘central significance’ to the people’s culture, one that ‘truly made the society what it was’ (Van der Peet, supra, at paras 54-59 (emphasis in original)). This excludes practices, traditions and customs that are only marginal or incidental to the aboriginal society’s cultural identity, and emphasizes practices, traditions and customs that are vital to the life, culture and identity of the aboriginal society in question.
13. Once an aboriginal right is established, the issue is whether the act which gave rise to the case at bar is an expression of that right. Aboriginal rights are not frozen in their pre-contact form: ancestral rights may find modern expression. The question is whether the impugned act represents the modern exercise of an ancestral practice, custom or tradition.
14. Before we can address the question of whether an aboriginal right has been established, we must first characterise the right claimed. The event giving rise to litigation merely represents an alleged exercise of an underlying right; it does not, in itself, tell the scope of the right claimed. Therefore it is necessary to determine the nature of the claimed right. At this initial stage of characterisation, the focus is on ascertaining the true nature of the claim, not assessing the merits of this claim or the evidence offered in its support.
15. In Van der Peet, supra, at p 53, the majority of this Court provided three factors that should guide a court’s characterisation of a claimed aboriginal right: (1) the nature of the action which the applicant is claiming was done pursuant to an aboriginal right; (2) the nature of the governmental legislation or action alleged to infringe the right, ie the conflict between the claim and the limitation; and (3) the ancestral traditions and practices relied upon to establish the right. The right claimed must be characterised in context and not distorted to fit the desired result. It must be neither artificially broadened nor narrowed. An overly narrow characterisation risks the dismissal of valid claims and an overly broad characterisation risks distorting the right by neglecting the specific culture and history of the claimant’s society: see R v Pamajewon [1996] 2 SCR 821.
16. ...The claimants asserted that ‘trade and commerce [is] central to their soul’. Witness after witness was asked to describe historical Mohawk trading practices. Furthermore, when Chief Mitchell exercised his alleged right, all of the goods brought into Canada were trade-related: they were intended as gifts to seal a trade agreement with Tyendinaga and to signify renewed trading relations, in accordance with customary practice. Therefore the first factor, the action claimed as an exercise of an aboriginal right, suggests that the heart of the claim is the right to bring goods across the Canada–United States border for purposes of trade.
17. The second factor, the nature of the conflict between the claimed right and the relevant legislation, while more neutral, does not displace this conclusion. The law in conflict with the alleged right is the Customs Act. It applies to both personal goods and goods for trade.
18. The third factor to be considered in characterising the claim is the relevant traditions and practices of the aboriginal people in question. The ancestral aboriginal practices upon which the claimant relies provide a strong indication of the nature and scope of the right claimed. In this case, the claimants emphasize their ancestral trading practices; indeed these practices and the alleged limitations on them raised by the appellant, lie at the heart of the case. As noted, the claimants assert that historically ‘trade and commerce [is] central to their soul’. One of the claimant’s expert witnesses testified that trade ‘came as easily to the Iroquois as living and breathing’. The government, while not denying that the Mohawks traditionally traded, asserts that such trade did not extend north into what is now Canada and that, in any event, the Mohawks traditionally accepted the custom of paying tributes and duties to cross boundaries established by other polities.
19. I conclude that the Van der Peet factors of the impugned action, the governmental action or legislation with which it conflicts, and ancestral practice relied on, all suggest the claim here is properly characterised as the right to bring goods across the Canadian-United States boundary at the St Lawrence River for purposes of trade.
...
21. The trial judge characterised the right claimed as including a right to engage in ‘small, non-commercial scale trade’ (p 12). He does not make it clear what inferences arise from this characterisation, but one possible inference might be that evidence of minimal pre-contact trade would suffice to establish the right. I note without comment the practical difficulties inherent in defining ‘small, non-commercial scale trade’ and the obvious fact that many small acts of trade may add up to more trade. For purposes of this appeal, it suffices to note that Chief Mitchell did not seek at trial to limit his claim to small-scale or non-commercial trade. While he did not claim a right to trade goods brought across the border in the commercial mainstream, he did assert a right to trade with other First Nations, without qualifying the scale of such trade. He then called evidence emphasising the centrality of trade to the ancestral Mohawk way of life. Moreover, his express purpose in transporting the goods across the border was the revival of trading relations with a neighbouring community. In these circumstances, it seems inappropriate to place much weight on the limitation proposed by the Federal Court, and the claimed right is best characterised as a right to trade simpliciter.
22. In another attempt at limitation, Chief Mitchell denies that his claim entails the right to pass freely over the border, ie, mobility rights. Perhaps recognising that mobility has become a contentious issue in recent cases (eg, Watt v Liebelt [1999] 2 FC 455 (CA); R v Campbell (2000) 6 Imm LR (3d) 1), he answers that his claim is contingent on his existing right to enter Canada pursuant to the Canadian Charter of Right and Freedoms and the Immigration Act, RSC 1985, c I-2. He does not seek a right to enter Canada because he does not require such a right. Again, however, narrowing the claim cannot narrow the aboriginal practice that defines the claimed right. An aboriginal right, once established, generally encompasses other rights necessary to its meaningful exercise. In R v Côté [1996] 3 SCR 139, for example, it was held that the right to fish for food in a specified territory necessarily encompassed a right of physical access to that territory. The evidence in the present case showed that trade involved travel. It follows that any finding of a trading right would also confirm a mobility right.
23. The Attorney General of Manitoba raises two additional points about the characterisation of the right. First, he argues that the claim should not be characterised in the negative. The original claim was to bring goods across the border ‘without having to pay any duty or taxes whatsoever to any Canadian government or authority’. Manitoba argues that the right should be characterised simply as a right to bring goods, without qualification. I agree. As in the fishing and hunting cases, once an existing right is established, any restriction on that right through the imposition of duties or taxes should be considered at the infringement stage: see, eg, R v Adams [1996] 3 SCR 101; Côté, supra; R v Nikal [1996] 1 SCR 1013; Gladstone, supra; see also R v Badger [1996] 1 SCR 771. The right claimed in those cases was not the right ‘to fish (or hunt) without restriction’. Similarly, here the right is not ‘to bring trade goods without having to pay duty’; properly defined, the right claimed is to bring trade goods simpliciter.
24. Manitoba also argues that the right should not be construed as a right to cross the border. Technically this argument is correct, as the border is a construction of newcomers. Aboriginal rights are based on aboriginal practices, customs and traditions, not those of newcomers. This objection can be dealt with simply: the right claimed should be to bring goods across the St Lawrence River (which always existed) rather than across the border. In modern terms, the two are equivalent.
25. Properly characterised, then, the right claimed in this case is the right to bring goods across the St Lawrence River for the purposes of trade.
26. Van der Peet set out the test for establishing an aboriginal right protected under s 35(1). Briefly stated, the claimant is required to prove: (1) the existence of the ancestral practice, custom or tradition advanced as supporting the claimed right; (2) that this practice, custom or tradition was ‘integral’ to his or her pre-contact society in the sense it marked it as distinctive; and (3) reasonable continuity between the pre-contact practice and the contemporary claim. I will consider each of these elements in turn. First, however, it is necessary to consider the evidence upon which claims may be proved, and the approach courts should adopt in interpreting such evidence.
27. Aboriginal right claims give rise to unique and inherent evidentiary difficulties. Claimants are called upon to demonstrate features of their pre-contact society, across a gulf of centuries and without the aid of written records. Recognising these difficulties, this Court has cautioned that the rights protected under s 35(1) should not be rendered illusory by imposing an impossible burden of proof on those claiming this protection (Simon v The Queen [1985] 2. SCR 387, at p 408). Thus in Van der Peet, supra, the majority of this Court stated that ‘a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in’ (para 68).
28. This guideline applies both to the admissibility of evidence and weighing of aboriginal oral history (Van der Peet, supra; Delgamuukw, supra, at para 82).
29. Courts render decisions on the basis of evidence. This fundamental principle applies to aboriginal claims as much as to any other claim. Van der Peet and Delgamuukw affirm the continued applicability of the rules of evidence, while cautioning that these rules must be applied flexibly, in a manner commensurate with the inherent difficulties posed by such claims and the promise of reconciliation embodied in s 35(1). This flexible application of the rules of evidence permits, for example, the admissibility of evidence of post-contact activities to prove continuity with pre-contact practices, customs and traditions (Van der Peet, supra, at para 62) and the meaningful consideration of various forms of oral history (Delgamuukw, supra).
30. ...Underlying the diverse rules on the admissibility of evidence are three simple ideas. First, the evidence must be useful in the sense of tending to prove a fact relevant to the issues in the case. Second, the evidence must be reasonably reliable; unreliable evidence may hinder the search for the truth more than help it. Third, even useful and reasonably reliable evidence may be excluded in the discretion of the trial judge if its probative value is overshadowed by its potential for prejudice.
31. In Delgamuukw, mindful of these principles, the majority of this Court held that the rules of evidence must be adapted to accommodate oral histories, but did not mandate the blanket admissibility of such evidence or the weight it should be accorded by the trier of fact; rather, it emphasised that admissibility must be determined on a case-by-case basis (para 87). Oral histories are admissible as evidence where they are both useful and reasonably reliable, subject always to the exclusionary discretion of the trial judge.
32. Aboriginal oral histories may meet the test of usefulness on two grounds. First, they may offer evidence of ancestral practices and their significance that would not otherwise be available. No other means of obtaining the same evidence may exist, given the absence of contemporaneous records. Second, oral histories may provide the aboriginal perspective on the right claimed. Without such evidence, it might be impossible to gain a true picture of the aboriginal practice relied on or its significance to the society in question. Determining what practices existed, and distinguishing central, defining features of a culture from traits that are marginal or peripheral, is no easy task at a remove of 400 years. Cultural identity is a subjective matter and not easily discerned: see R L Barsh and J Y Henderson, ‘The Supreme Court’s Van der Peet trilogy: naive imperialism and ropes of sand’ (1997), 42 McGill LJ 993, at p 1000, and J Woodward, Native Law (loose-leaf), at p 137. Also see Sparrow, supra, at p 404; Delgamuukw, supra, at paras 82-87, and J Borrows, ‘The trickster: integral to a distinctive culture’ (1997) 8 Constitutional Forum 27.
33. The second factor that must be considered in determining the admissibility of evidence in aboriginal cases is reliability: does the witness represent a reasonably reliable source of the particular people’s history? The trial judge need not go so far as to find a special guarantee of reliability. However, inquiries as to the witness’s ability to know and testify to orally transmitted aboriginal traditions and history may be appropriate both on the question of admissibility and the weight to be assigned the evidence if admitted.
...
35. In this case, the parties presented evidence from historians and archaeologists. The aboriginal perspective was supplied by oral histories of elders such as Grand Chief Mitchell. Grand Chief Mitchell’s testimony, confirmed by archaeological and historical evidence, was especially useful because he was trained from an early age in the history of his community. The trial judge found his evidence credible and relied on it. He did not err in doing so and we may do the same.
36. The second facet of the Van der Peet approach to evidence, and the more contentious issue in the present case, relates to the interpretation and weighing of evidence in support of aboriginal claims once it has cleared the threshold for admission. For the most part, the rules of evidence are concerned with issues of admissibility and the means by which facts may be proved. As J Sopinka and S N Lederman observe, ‘[t]he value to be given to such facts does not ... lend itself as readily to precise rules. Accordingly, there are no absolute principles which govern the assessment of evidence by the trial judge’ (The Law of Evidence in Civil Cases (1974), at p 524). This Court has not attempted to set out ‘precise rules’ or ‘absolute principles’ governing the interpretation or weighing of evidence in aboriginal claims. This reticence is appropriate, as this process is generally the domain of the trial judge, who is best situated to assess the evidence as it is presented, and is consequently accorded significant latitude in this regard. Moreover, weighing evidence is an exercise inherently specific to the case at hand.
37. Nonetheless, the present case requires us to clarify the general principles laid down in Van der Peet and Delgamuukw regarding the assessment of evidence in aboriginal right claims. The requirement that courts interpret and weigh the evidence with a consciousness of the special nature of aboriginal claims is critical to the meaningful protection of s 35(1) rights. As Lamer CJ observed in Delgamuukw, the admission of oral histories represents a hollow recognition of the aboriginal perspective where this evidence is then systematically and consistently undervalued or deprived of all independent weight (para 98). Thus, it is imperative that the laws of evidence operate to ensure that the aboriginal perspective is ‘given due weight by the courts’ (para 84).
...
39. There is a boundary that must not be crossed between a sensitive application and a complete abandonment of the rules of evidence. As Binnie J observed in the context of treaty rights, ‘[g]enerous rules of interpretation should not be confused with a vague sense of after-the-fact largesse’ (R v Marshall [1999] 3 SCR 456, at para 14). In particular, the Van der Peet approach does not operate to amplify the cogency of evidence adduced in support of an aboriginal claim. Evidence advanced in support of aboriginal claims, like the evidence offered in any case, can run the gamut of cogency from the highly compelling to the highly dubious. Claims must still be established on the basis of persuasive evidence demonstrating their validity on the balance of probabilities. Placing ‘due weight’ on the aboriginal perspective, or ensuring its supporting evidence an ‘equal footing’ with more familiar forms of evidence, means precisely what these phrases suggest: equal and due treatment. While the evidence presented by aboriginal claimants should not be undervalued ‘simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case’ (Van der Peet, supra, at para 68), neither should it be artificially strained to carry more weight than it can reasonably support. If this is an obvious proposition, it must nonetheless be stated.
40. With these principles in mind, I turn now to the consideration of whether the evidence offered in the present case in fact supports an aboriginal right to bring goods across the St Lawrence River for the purposes of trade.
41. ... A critical question in this case, however, is whether these trading practices and northerly travel coincided prior to the arrival of Europeans; that is, does the evidence establish an ancestral Mohawk practice of transporting goods across the St Lawrence River for the purposes of trade? Only if this ancestral practice is established does it become necessary to determine whether it is an integral feature of Mohawk culture with continuity to the present day.
42. With respect, the trial judge’s affirmative response to this question finds virtually no support in the evidentiary record. Indeed, McKeown J concedes as much (at p 44):
There is little direct evidence that the Mohawks, prior to the arrival of the Europeans, brought goods from their homeland and traded with other First Nations on the Canadian side of the boundary ...
Nonetheless, he goes on to state:
[H]owever, I am satisfied that Mohawk society is distinctive, that trade was an integral part of Mohawk tradition and that the Mohawks travelled freely across the border to expand trading territory and to obtain goods for the purposes of trade, ... I find that the plaintiff and the Mohawks of Akwesasne have established an aboriginal right to pass and repass freely what is now the Canada–United States boundary with goods for personal and community use and for trade with other first nations.
These statements are contradictory on two levels. First, the findings in the second statement do not lead logically to its conclusion: Mohawks travel across the border in attempts to expand trading territory through ‘commercially motivated warfare’ (as it was called at trial (p 33)) or to obtain goods for trade elsewhere simply does not address the question of whether goods were brought across the border for purposes of trade with First Nations to the north. On this question, McKeown J was quite correct to state there exists ‘little direct evidence’. This leads to the second contradiction: the inconsistency between this concession of little direct evidence and the finding of an aboriginal right ... In this case, however, the ‘little direct evidence’ relied upon by the trial judge is, at best, tenuous and scant, and is perhaps better characterised as an absence of even minimally cogent evidence. This conclusion seems inescapable after a review of the evidence upon which McKeown J relied in support of his holding. In particular, McKeown J relied upon archaeological evidence; the testimony of Chief Mitchell and Dr Venables, a cultural historian; and post-contact Mohawk involvement in treaty-making and the fur trade.
43. The archaeological evidence consisted of two works, submitted by expert witnesses, purportedly documenting an historical north-south trade in copper and ceremonial knives, respectively. Sexton JA, writing for the majority of the Federal Court of Appeal in upholding the trial judge’s finding of a cross-border trading right, placed significant emphasis on the former. He concluded at para 50 that D K Richter’s book, The Ordeal of the Longhouse: The Peoples of the Iroquois League in the Era of European Colonization (1992), demonstrated
that the Iroquois living in what is now the State of New York traded in copper which originated from the north shore of Lake Superior. Justice McKeown recognized that this was clear archaeological evidence of North-South trade across what is now the Canada–United States border.
44. This is, with respect, an overly generous interpretation of both the book and the trial judgment. The book merely states that plates of worked copper originating in the Great Lakes region were particularly prized as gifts by the members of the Five Nations Confederacy (Richter, supra, at p 28). It indicates that this copper originated to the north of the Mohawk Valley, not that the Mohawks obtained this copper through direct trading with their northern neighbours. Indeed, Richter’s book confirms that long-distance Mohawk trade, at least at the time of contact, fell along an east-west axis. The Mohawks traded with the Wenros and Neutrals to the west (in the Niagra Region, south of the Great Lakes) and the Mohicans in the east, but not with their enemies in the disputed territory to the north...
...
46. Consequently, while Richter’s book may support the pre-contact existence of north-south trade routes, it refutes the direct involvement of the Mohawks in this trade. This is a significant fact, given the reliance by the trial judge on this evidence in concluding the aboriginal right was established, and in rejecting the testimony of the appellant’s expert witness, Dr von Gernet, to the effect that he had ‘yet to find a single archeological site anywhere in Ontario dating to the prehistoric, the protohistoric or the early historical period which has in any way ever been associated with the Mohawks’ (p 30).
47. The second item of archaeological evidence relates to an alleged trade in chalcedony ceremonial knives, raised by the claimant’s expert witness, Dr Venables, on the basis of W A Ritchie’s The Archeology of New York State (rev ed 1980) Again, Ritchie describes the Iroquois trade networks as falling ‘chiefly westward toward the Upper Great Lakes, where also the strongest cultural ties are found’ (p 196 (emphasis added)). The only evidence of northerly trade is found in a single ‘smoky chalcedony ceremonial (?) knife,’ from which Ritchie postulates a potential trade route ‘evidently to the north in Quebec’ (p 196) established somewhere between 3000 BC and 300 BC This evidence, standing alone, can hardly be called compelling.
48. The trial judge preferred the evidence of Dr Venables and Chief Mitchell where it conflicted with that of Dr von Gernet. He properly admitted the testimony of Chief Mitchell relaying the oral history of his people, correctly stating, in accordance with Van der Peet, that the weight he accorded ‘to oral history and to documentary evidence does not depend on the form in which the evidence was presented to the court’ (p 25). However, Chief Mitchell did not discuss Mohawk trading activity north of the St Lawrence River. Referring to Akwesasne, he simply stated that ‘[a]ccording to our traditions it had always been one of our areas where we did all our planting, we did our fishing and we did our hunting’. Dr Venables testimony was equally limited. He referred to extensive trade between the Mohawks and their Iroquois confederates to the west, but did not identify any direct evidence of trade to the north. Dr Venables cited the works by Richter and Ritchie but, as discussed above, the latter offers only the most tenuous support for northerly trade and the former, if anything, refutes the existence of such trade during the time preceding contact. Dr Venables also referred to the Historical Atlas of Canada, but the trial judge found at p 29 that this text ‘does not demonstrate cross-border trade by the Mohawks’.
49. Finally, the trial judge relied on post-contact Mohawk activity as proof of continuity with pre-contact practices, an adaptation of the rules of evidence approved in Van der Peet. He found it ‘particularly noteworthy that the early treaties entered into by the Mohawks and other Iroquois were largely concerned with trade’ (p 43). None of these early treaties, however, support a reasonable inference of pre-contact cross-river trade. For example, the trial judge relied on a 1645 treaty between the Hurons, French and Mohawks. The Mohawks had defeated the Hurons (allies of the French) and now sought to restrict their trade and travel through the peace treaty, to their own benefit. Dr Venables interpreted the Mohawk negotiator’s speech at the treaty conference as demonstrating the integrity of trade to Mohawk culture. The Mohawk negotiator did not actually refer to pre-existing trade, nor did Dr Venables claim he had. The Mohawks had warred against the Hurons and Algonquins for years. While the treaty might suggest the existence of trade during the uneasy year of peace before it was broken, it offers no evidence of pre-contact trade across the St Lawrence River.
50. The trial judge also relied on evidence of Mohawk participation in the Montreal–Albany fur trade as suggesting pre-contact trade along a northerly route. He rejected the assertion that this fur trade activity arose solely in response to the arrival of Europeans, reasoning that ‘it seems highly unlikely that the Mohawks would start trading immediately upon the arrival of Europeans if they had not been involved in some prior trade’ (p 39). In his view, ‘a north-south trade existed prior to the European presence and after the arrival of the Europeans, the trade was expanded to include furs’ (p 37). While this inference may indeed be drawn from the evidence, it is drawn in the absence of any other evidence — oral or documentary, aboriginal or settler, direct or otherwise — substantiating the existence of this pre-contact trade route. It cannot carry much force.
51. As discussed in the previous section, claims must be proven on the basis of cogent evidence establishing their validity on the balance of probabilities. Sparse, doubtful and equivocal evidence cannot serve as the foundation for a successful claim. With respect, this is exactly what has occurred in the present case. The contradiction between McKeown J’s statement that little direct evidence supports a cross-river trading right and his conclusion that such a right exists suggests the application of a very relaxed standard of proof (or, perhaps more accurately, an unreasonably generous weighing of tenuous evidence). The Van der Peet approach, while mandating the equal and due treatment of evidence supporting aboriginal claims, does not bolster or enhance the cogency of this evidence. The relevant evidence in this case — a single knife, treaties that make no reference to pre-existing trade, and the mere fact of Mohawk involvement in the fur trade — can only support the conclusion reached by the trial judge if strained beyond the weight they can reasonably hold. Such a result is not contemplated by Van der Peet or s 35(1). While appellate courts grant considerable deference to findings of fact made by trial judges, I am satisfied that the findings in the present case represent a ‘clear and palpable error’ warranting the substitution of a different result (Delgamuukw, supra, at paras 78-80). I conclude that the claimant has not established an ancestral practice of transporting goods across the St Lawrence River for the purposes of trade.
52. This holding should not be read as imposing upon aboriginal claimants the ‘next to impossible task of producing conclusive evidence from pre-contact times about the practices, customs and traditions of their community’ (Van der Peet, supra, at para 62). McKeown J correctly observed that indisputable evidence is not required to establish an aboriginal right (p 20). Neither must the claim be established on the basis of direct evidence of pre-contact practices, customs and traditions, which is inevitably scarce. Either requirement would ‘preclude in practice any successful claim for the existence’ of an aboriginal right (Van der Peet, supra, at para 62). My conclusion, rather, is premised on the distinction between sensitively applying evidentiary principles and straining these principles beyond reason. In Adams, supra, this Court recognized a Mohawk right to fish on the St Lawrence River, but this was on the basis of evidence that ‘clearly demonstrated’ (para 46 (emphasis added)) that fishing for subsistence in the area constituted a significant aspect of Mohawk life at the time of contact. Similarly, the recognition in Gladstone of an aboriginal right to engage in the commercial trade of herring spawn was founded firmly on an indisputable historical and anthropological record that ‘readily bears this out’ (para 26), complemented by written documentation by European observers of such inter-tribal trade at the time of contact (para 26–27). This Court concluded that the claimant had ‘provided clear evidence from which it can be inferred that, prior to contact, Heiltsuk society was, in significant part, based on such trade’ (para 28). Here, no such ‘clear evidence’ of a trading practice north of St Lawrence River exists and no comparable inference can be drawn.
53. In view of the paucity of evidence of Mohawk trade north of St Lawrence River, I need not consider the argument that, even if it were established, any Mohawk trading right should be characterised as inherently subject to border controls, tolls and duties imposed by other peoples, as recognized by ancestral aboriginal custom.
54. Even if deference were granted to the trial judge’s finding of pre-contact trade relations between the Mohawks and First Nations north of the St Lawrence River, the evidence does not establish this northerly trade as a defining feature of the Mohawk culture. As discussed earlier, the Van der Peet test identifies as aboriginal rights only those activities that represent ‘an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right’ (para 46 (emphasis added)). It is therefore incumbent upon Chief Mitchell in this case to demonstrate not only that personal and community goods were transported across the St Lawrence River for trade purposes prior to contact, but also that this practice is integral to the Mohawk people.
55. The importance of trade — in and of itself — to Mohawk culture is not determinative of the issue. It is necessary on the facts of this case to demonstrate the integrality of this practice to the Mohawk in the specific geographical region in which it is alleged to have been exercised (ie, north of the St Lawrence River), rather than in the abstract. This Court has frequently considered the geographical reach of a claimed right in assessing its centrality to the aboriginal culture claiming it... For example, in recognizing a constitutionally protected Mohawk fishing right in Adams, supra, the majority of this Court framed the Van der Peet test as follows (at para 34):
The appellant argues that the Mohawks have an aboriginal right to fish in Lake St Francis. In order to succeed in this argument the appellant must demonstrate that, pursuant to the test laid out by this Court in Van der Peet, fishing in Lake St Francis was ‘an element of a practice, custom or tradition integral to the distinctive culture’ of the Mohawks.
The majority, in assessing the integrality of this practice to the Mohawks in Adams, consistently tied the claimed right to the specific area at issue — the region of Lake St Francis (see paras 37 and 45). Côté, supra, similarly emphasised that it is the exercise of the claimed right in a specific geographical area that must be integral (paras 41-78). In that case, the Court stated that ‘[a]n aboriginal practice, custom or tradition entitled to protection as an aboriginal right will frequently be limited to a specific territory or location, depending on the actual pattern of exercise of such an activity prior to contact’ (para 39).
56. Thus, geographical considerations are clearly relevant to the determination of whether an activity is integral in at least some cases, most notably where the activity is intrinsically linked to specific tracts of land. However, as Lamer CJ observed in Delgamuukw, ‘aboriginal rights ... fall along a spectrum with respect to their degree of connection with the land’ (para 138). In this regard, I note that the relevance of geography is much clearer in hunting and fishing cases such as Adams and Côté, which involve activities inherently tied to the land, than it is in relation to more free-ranging rights, such as a general right to trade, which fall on the opposite end of the spectrum. General trading rights lack an inherent connection to a specific tract of land... Consequently, trading rights will seldom attract geographical restrictions.
57. In the present case, however, the right to trade is only one aspect, and perhaps a peripheral one, of the broader claim advanced by Chief Mitchell: the right to convey goods across an international boundary for the purposes of trade. For this reason, Chief Mitchell’s claim cannot simply be equated with the claims in the aboriginal rights trilogy as involving a broad ‘right to trade’. This distinction is manifest in the contrasting manners in which the claimed rights are framed in these cases, pursuant to the Van der Peet factors.
58. In the present case, unlike past trading cases, all three Van der Peet touchstones resonate with considerations of geography. The action giving rise to the case is Chief Mitchell arriving at the Cornwall International Bridge and claiming a right to cross this international boundary with goods for trade. Absent a border, this case would not be before the Court. Similarly, the government restriction alleged to infringe the right arises from provisions of the Customs Act regulating the importation of goods. Unlike the provisions implicated in the aboriginal rights trilogy, the Customs Act is fundamentally concerned with the geographical origins and destinations of goods. The ancestral practice relied upon in support of the right, while argued broadly, also involved allegations of an historical trade route north across the St Lawrence River. Chief Mitchell’s characterisation of his claim, while not determinative, reflects the undeniable geographical element of the claim: he asserts the right to enter Canada from the United States with personal and community goods, without paying customs and other duties, for trade with First Nations.
59. Ultimately, the characterisation of the claimed right in this case, as in Adams and Côté, imports a necessary geographical element, and its integrality to the Mohawk culture should be assessed on this basis. By contrast, geographical considerations were irrelevant to the framing of the claimed trading right in the aboriginal rights trilogy, and were therefore equally irrelevant to whether the claimed trade constituted a defining feature of the cultures in question and the scope of the right if successfully established. In this manner, the Van der Peet approach to characterising the claimed right will generally determine when — and to what extent — geographical considerations are relevant to the claim.
60. The claimed right in the present case implicates an international boundary and, consequently, imports a geographical element into the inquiry. Instead of asking whether the right to trade — in the abstract — is integral to the Mohawk people, this Court must ask whether the right to trade across the St Lawrence River is integral to the Mohawks. The evidence establishes that it is not. Even if the trial judge’s generous interpretation of the evidence were accepted, it discloses negligible transportation and trade of goods by the Mohawks north of the St Lawrence River prior to contact. If the Mohawks did transport trade goods across the St Lawrence River for trade, such occasions were few and far between. Certainly it cannot be said that the Mohawk culture would have been ‘fundamentally altered’ (para 59) without this trade, in the language of Van der Peet. It was not vital to the Mohawks’ collective identity. It was not something that ‘truly made the society what it was’ (Van der Peet, supra, at para 55). Participation in northerly trade was therefore not a practice integral to the distinctive culture of the Mohawk people. It follows that no aboriginal right to bring goods across the border for the purposes of trade has been established.
61. The conclusion that the right claimed is not established on the evidence suffices to dispose of this appeal. I add a note, however, on the government’s contention that s 35(1) of the Constitution Act, 1982 extends constitutional protection only to those aboriginal practices, customs and traditions that are compatible with the historical and modern exercise of Crown sovereignty. Pursuant to this argument, any Mohawk practice of cross-border trade, even if established on the evidence, would be barred from recognition under s 35(1) as incompatible with the Crown’s sovereign interest in regulating its borders.
62. This argument finds its source in the doctrine of continuity, which governed the absorption of aboriginal laws and customs into the new legal regime upon the assertion of Crown sovereignty over the region. As discussed above, this incorporation of local laws and customs into the common law was subject to an exception for those interests that were inconsistent with the sovereignty of the new regime: see Slattery, supra, at p 738; see also Delgamuukw v British Columbia [1993] 5 WWR 97 (BCCA), per Lambert JA, at paras 1021-24; Mabo, supra, per Brennan J, at p 61; Inasa v Oshodi [1934] AC 99 (PC); and R v Jacobs [1999] 3 CNLR 239 (BCSC).
63. This Court has not expressly invoked the doctrine of ‘sovereign incompatibility’ in defining the rights protected under s 35(1). In the Van der Peet trilogy, this Court identified the aboriginal rights protected under s 35(1) as those practices, customs and traditions integral to the distinctive cultures of aboriginal societies: Van der Peet, supra, at para 46. Subsequent cases affirmed this approach to identifying aboriginal rights falling within the aegis of s 35(1) (Pamajewon, supra, at paras 23-25; Adams, supra, at para 33; Côté, supra, at para 54; see also: Woodward, supra, at p 75) and have affirmed the doctrines of extinguishment, infringement and justification as the appropriate framework for resolving conflicts between aboriginal rights and competing claims, including claims based on Crown sovereignty.
64. The Crown now contends that ‘sovereign incompatibility’ is an implicit element of the Van der Peet test for identifying protected aboriginal rights, or at least a necessary addition. In view of my conclusion that Chief Mitchell has not established that the Mohawks traditionally transported goods for trade across the present Canada–US border, and hence has not proven his claim to an aboriginal right, I need not consider the merits of this submission. Rather, I would prefer to refrain from comment on the extent, if any, to which colonial laws of sovereign succession are relevant to the definition of aboriginal rights under s 35(1) until such time as it is necessary for the Court to resolve this issue.
65. I would allow the appeal. Chief Mitchell must pay the duty claimed by the government. I note that the government has undertaken to pay Chief Mitchell’s costs.
66. I have read the reasons of the Chief Justice and I concur in the result and with her conclusion that even if Mohawks did occasionally trade goods across the St Lawrence River with First Nations to the north, this practice was not on the evidence a ‘defining feature of the Mohawk culture’ (para 54) or ‘vital to the Mohawk’s collective identity’ (para 60) in pre-contact times. There are, however, some additional considerations that have led me to conclude that the appeal must be allowed.
67. It has been almost 30 years since this Court emphatically rejected the argument that the mere assertion of sovereignty by the European powers in North America was necessarily incompatible with the survival and continuation of aboriginal rights: Calder v Attorney-General of British Columbia [1973] SCR 313. Because not all customs and traditions of aboriginal First Nations are incompatible with Canadian sovereignty, however, does not mean that none of them can be in such conflict...
...
70. Counsel for the respondent does not challenge the reality of Canadian sovereignty, but he seeks for the Mohawk people of the Iroquois Confederacy the maximum degree of legal autonomy to which he believes they are entitled because of their long history at Akwesasne and elsewhere in eastern North America. This asserted autonomy, to be sure, does not presently flow from the ancient Iroquois legal order that is said to have created it, but from the Constitution Act, 1982. Section 35(1), adopted by the elected representatives of Canadians, recognises and affirms existing aboriginal and treaty rights. If the respondent’s claimed aboriginal right is to prevail, it does so not because of its own inherent strength, but because the Constitution Act, 1982 brings about that result.
71. The aspect of Mohawk autonomy at issue in this case is reflected in the declaration granted by the Trial Division of the Federal Court ((1997), 134 FTR 1), at p 4:
... that the plaintiff as a Mohawk of Akwesasne resident in Canada has an existing aboriginal right which is constitutionally protected by ss. 35 and 52 of the Constitution Act, 1982 to pass and repass freely across what is now the Canada — United States boundary including the right to bring goods into Canada for personal and community use, including for trade with other First Nations, without having to pay any duty or taxes whatsoever to any Canadian Government or authority... [Emphasis added.]
This is essentially a description of a trading/mobility right of people and their goods across the international boundary subject only to such restrictions as can be justified by the government under the principles laid down in R v Sparrow [1990] 1 SCR 1075.
72. The Crown’s argument on the appeal is that such a claim goes beyond the sort of economic or cultural activity or land-based interest that the courts have previously recognized under s 35(1) in such cases as R v Van der Peet [1996] 2 SCR 507, R v Gladstone [1996] 2 SCR 723, R v NTC Smokehouse Ltd [1996] 2 SCR 672, and R v Adams [1996] 3 SCR 101.
73. In terms of traditional aboriginal law, the issue, as I see it, is whether trading/mobility activities asserted by the respondent not as a Canadian citizen but as an heir of the Mohawk regime that existed prior to the arrival of the Europeans, created a legal right to cross international boundaries under succeeding sovereigns. This aspect of the debate, to be clear, is not at the level of fact about the effectiveness of border controls in the 18th century. (Nor is it about the compatibility of internal aboriginal self-government with Canadian sovereignty.) The issue is at the level of law about the alleged incompatibility between European (now Canadian) sovereignty and mobility rights across non-aboriginal borders said by the trial judge to have been acquired by the Mohawks of Akwesasne by reason of their conduct prior to 1609.
...
125. For the reasons already mentioned, the respondent’s claim, despite the concessions made in argument, is not just about physical movement of people or goods in and about Akwesasne. It is about pushing the envelope of Mohawk autonomy within the Canadian Constitution. It is about the Mohawks’ aspiration to live as if the international boundary did not exist. Whatever financial benefit accrues from the ability to move goods across the border without payment of duty is clearly incidental to this larger vision.
...
127. In the constitutional framework envisaged by the respondent, the claimed aboriginal right is simply a manifestation of the more fundamental relationship between the aboriginal and non-aboriginal people. In the Mohawk tradition this relationship is memorialized by the ‘two-row’ wampum, referred to by the respondent in Exhibit D-13, at pp 109–110, and in his trial evidence (trans, vol 2, at pp 191–92), and described in the Haudenosaunee presentation to the Parliamentary Special Committee on Indian Self-Government in 1984 as follows:
When the Haudenosaunee first came into contact with the European nations, treaties of peace and friendship were made. Each was symbolized by the Gus-Wen-Tah or Two Row Wampum. There is a bed of white wampum which symbolizes the purity of the agreement. There are two rows of purple, and those two rows have the spirit of your ancestors and mine. There are three beads of wampum separating the two rows and they symbolize peace, friendship and respect.
These two rows will symbolize two paths or two vessels, travelling down the same river together. One, a birch bark canoe, will be for the Indian people, their laws, their customs and their ways. The other, a ship, will be for the white people and their laws, their customs and their ways. We shall each travel the river together, side by side, but in our own boat. Neither of us will try to steer the other’s vessel.
(Indian Self-Government in Canada: Report of the Special Committee (1984), back cover)
128. Thus, in the ‘two-row’ wampum there are two parallel paths. In one path travels the aboriginal canoe. In the other path travels the European ship. The two vessels co-exist but they never touch. Each is the sovereign of its own destiny.
129. The modern embodiment of the ‘two-row’ wampum concept, modified to reflect some of the realities of a modern state, is the idea of a ‘merged’ or ‘shared’ sovereignty. ‘Merged sovereignty’ asserts that First Nations were not wholly subordinated to non-aboriginal sovereignty but over time became merger partners. The final Report of the Royal Commission on Aboriginal Peoples, vol 2 (Restructuring the Relationship (1996)), at p 24, says that ‘Aboriginal governments give the constitution [of Canada] its deepest and most resilient roots in the Canadian soil.’ This updated concept of Crown sovereignty is of importance. Whereas historically the Crown may have been portrayed as an entity across the seas with which aboriginal people could scarcely be expected to identify, this was no longer the case in 1982 when the s 35(1) reconciliation process was established. The Constitution was patriated and all aspects of our sovereignty became firmly located within our borders. If the principle of ‘merged sovereignty’ articulated by the Royal Commission on Aboriginal Peoples is to have any true meaning, it must include at least the idea that aboriginal and non-aboriginal Canadians together form a sovereign entity with a measure of common purpose and united effort. It is this new entity, as inheritor of the historical attributes of sovereignty, with which existing aboriginal and treaty rights must be reconciled.
...
133. ...In Gladstone (at para 73) and again in Delgamuukw v British Columbia [1997] 3 SCR 1010 (at para 165), Lamer CJ repeats that ‘distinctive aboriginal societies exist within, and are part of, a broader social, political and economic community, over which the Crown is sovereign’ (emphasis added). The constitutional objective is reconciliation not mutual isolation.
...
135. It is unnecessary, for present purposes, to come to any conclusion about these assertions. What is significant is that the Royal Commission itself sees aboriginal peoples as full participants with non-aboriginal peoples in a shared Canadian sovereignty. Aboriginal peoples do not stand in opposition to, nor are they subjugated by, Canadian sovereignty. They are part of it.
...
137. The respondent’s claim thus presents two defining elements. He asserts a trading and mobility right across the international boundary and he attaches this right to his current citizenship not of Canada but of the Haudenosaunee Confederacy with its capital in Onondaga, New York State.
...
148. I am far from suggesting that the key to s 35(1) reconciliation is to be found in the legal archives of the British Empire. The root of the respondent’s argument nevertheless is that the Mohawks of Akwesasne acquired under the legal regimes of 18th century North America, a positive legal right as a group to continue to come and go across any subsequent international border dividing their traditional homelands with whatever goods they wished, just as they had in pre-contact times. In other words, Mohawk autonomy in this respect was continued but not as a mere custom or practice. It emerged in the new European-based constitutional order as a legal trading and mobility right. By s 35(1) of the Constitution Act, 1982, it became a constitutionally protected right. That is the respondent’s argument.
...
149. Care must be taken not to carry forward doctrines of British colonial law into the interpretation of s 35(1) without careful reflection. In R v Eninew (1984) 12 CCC (3d) 365 (Sask CA) and R v Hare (1985) 20 CCC (3d) 1 (Ont CA), for example, it was held by two provincial courts of appeal that s 35(1) ‘recognised and affirmed’ (and thus set in constitutional concrete) the traditional frailties of common law aboriginal rights, including their vulnerability to unilateral extinguishment by governments. This was rejected in Sparrow, supra, where the Court construed s 35(1) as affirming the promise of a new commitment by Canadians to resolve some of the ancient grievances that have exacerbated relations between aboriginal and non-aboriginal communities.
150. Yet the language of s 35(1) cannot be construed as a wholesale repudiation of the common law. The subject matter of the constitutional provision is ‘existing’ aboriginal and treaty rights and they are said to be ‘recognised and affirmed’ not wholly cut loose from either their legal or historical origins. One of the defining characteristics of sovereign succession and therefore a limitation on the scope of aboriginal rights, as already discussed, was the notion of incompatibility with the new sovereignty. Such incompatibility seems to have been accepted, for example, as a limitation on the powers of aboriginal self-government in the 1993 working report of the Royal Commission on Aboriginal Peoples, Partners in Confederation: Peoples, Self-Government and the Constitution, supra, at p 23:
... Aboriginal nations did not lose their inherent rights when they entered into a confederal relationship with the Crown. Rather, they retained their ancient constitutions so far as these were not inconsistent with the new relationship.
151. Prior to Calder, supra, ‘sovereign incompatibility’ was given excessive scope. The assertion of sovereign authority was confused with doctrines of feudal title to deny aboriginal peoples any interest at all in their traditional lands or even in activities related to the use of those lands. To acknowledge that the doctrine of sovereign incompatibility was sometimes given excessive scope in the past is not to deny that it has any scope at all, but it is a doctrine that must be applied with caution.
152. I take an illustration from the evidence in this case. The trial judge showed that pre-contact the Mohawks, as a military force, moved under their own command through what is now parts of southern Ontario and southern Quebec. The evidence, taken as a whole, suggests that military values were ‘a defining feature of Mohawk [or Iroquois] culture’, to use my colleague’s expression at para 54. Indeed, the Mohawk warrior tradition has its adherents to this day. As previously noted, the trial judge at p 35 thought the Mohawks’ military activities in the St Lawrence River Valley probably got in the way of their trading activities:
[I]t is difficult to see how an army would engage in trade with their enemies while in pursuit of them.
153. However, important as they may have been to the Mohawk identity as a people, it could not be said, in my view, that pre-contact warrior activities gave rise under successor regimes to a legal right under s 35(1) to engage in military adventures on Canadian territory. Canadian sovereign authority has, as one of its inherent characteristics, a monopoly on the lawful use of military force within its territory. I do not accept that the Mohawks could acquire under s 35(1) a legal right to deploy a military force in what is now Canada, as and when they choose to do so, even if the warrior tradition was to be considered a defining feature of pre-contact Mohawk society. Section 35(1) should not be interpreted to throw on the Crown the burden of demonstrating subsequent extinguishment by ‘clear and plain’ measures (Gladstone, supra, at para 31) of a ‘right’ to organise a private army, or a requirement to justify such a limitation after 1982 under the Sparrow standard. This example, remote as it is from the particular claim advanced in this case, usefully illustrates the principled limitation flowing from sovereign incompatibility in the s 35(1) analysis.
154. In my opinion, sovereign incompatibility continues to be an element in the s 35(1) analysis, albeit a limitation that will be sparingly applied. For the most part, the protection of practices, traditions and customs that are distinctive to aboriginal cultures in Canada does not raise legitimate sovereignty issues at the definitional stage.
...
158. The question is whether the asserted legal right to the autonomous exercise of international trade and mobility was compatible with the new European (now Canadian) sovereignty and the reciprocal loss (or impairment) of Mohawk sovereignty.
159. In the resolution of this legal issue, as stated, we are addressing legal incompatibility as opposed to factual incompatibility. The latter emerged more slowly as assertions of sovereignty gave way to colonisation and progressive occupation of land. From the outset, however, frontiers were a fundamental expression or demarcation of sovereignty amongst First Nations as well as in the European conception (Nicholson, supra, at pp 8-9), and indeed amongst and between Britain’s North American colonies (J Story, Commentaries on the Constitution of the United States (4th ed 1873), vol II, at pp 463–64). Akwesasne is the point at which, since 1783, British (and later Canadian) sovereignty came face to face with the sovereignty of the United States.
160. Control over the mobility of persons and goods into one country is, and always has been, a fundamental attribute of sovereignty.
It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. [Emphasis added.] (R v Simmons [1988] 2 SCR 495, per Dickson CJ, at p 528)
See also R v Jacques [1996] 3 SCR 1075, per Gonthier J, at paras 15 and 18; Almeida-Sanchez v United States, [1973] USSC 155; 413 US 266 (1973), at p 279; and United States v Ramsey [1977] USSC 97; 431 US 606 (1977). In other words, not only does authority over the border exist as an incident of sovereignty, the state is expected to exercise it in the public interest. The duty cannot be abdicated to the vagaries of an earlier regime whose sovereignty has been eclipsed (Cain, supra, at pp 545–46).
161. The legal situation is further complicated by the fact, previously mentioned, that the respondent attributes his international trading and mobility right not to his status as a Canadian citizen but as a citizen of the Haudenosaunee (Iroquois Confederacy) based at Onondaga, New York. Border conditions in the modern era are vastly different from those in the 18th century. Nevertheless, as stated, borders existed among nations, including First Nations. They were expressions of sovereign autonomy and then, as now, compelled observance.
162. The courts of the United States, being in this case the country of export, also view border controls as incidental to territorial sovereignty. In Chue Chan Ping v United States [1889] USSC 131; 130 US 581 (1889), it was said by Field J, for the United States Supreme Court, at pp 603–4:
Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power.
In Ekiu v United States, [1892] USSC 26; 142 US 651 (1892), at p 659, the United States Supreme Court stated:
It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.
To the same effect is the holding of Gray J, for the court, in Fong Yu Ting v United States [1893] USSC 185; 149 US 698 (1893), at p 707.
163. Similar views were expressed by scholars writing before the Canada–United States border was ever established. E de Vattel, whose treatise The Law of Nations was first published in 1758, said this:
The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual. (The Law of Nations (Chitty ed 1834), book II at pp 169–70)
To the same effect is Blackstone, supra, at p 259:
Upon exactly the same reason stands the prerogative of granting safe-conducts, without which by the law of nations no member of one society has a right to intrude into another.
In my view, therefore, the international trading/mobility right claimed by the respondent as a citizen of the Haudenosaunee (Iroquois) Confederacy is incompatible with the historical attributes of Canadian sovereignty.
164. The question that then arises is whether this conclusion is at odds with the purpose of s 35(1), ie the reconciliation of the interests of aboriginal peoples with Crown sovereignty? In addressing this question it must be remembered that aboriginal people are themselves part of Canadian sovereignty as discussed above. I agree with Borrows, supra at p 40, that accommodation of aboriginal rights should not be seen as ‘a zero sum relationship between minority rights and citizenship; as if every gain in the direction of accommodating diversity comes at the expense of promoting citizenship’, (quoting W Kymlicka and W Norman eds, Citizenship in Diverse Societies Oxford University Press, NY (2000), at p 39). On the other hand, the reverse is also true. Affirmation of the sovereign interest of Canadians as a whole, including aboriginal peoples, should not necessarily be seen as a loss of sufficient ‘constitutional space for Aboriginal peoples to be Aboriginal’ (Greschner, supra, at p 342). A finding of distinctiveness is a judgment that to fulfill the purpose of s 35, a measure of constitutional space is required to accommodate particular activities (traditions, customs or practices) rooted in the aboriginal peoples’ prior occupation of the land. In this case, a finding against ‘distinctiveness’ is a conclusion that the respondent’s claim does not relate to a ‘defining feature’ that makes Mohawk ‘culture what it is’ (Van der Peet, at paras 59 and 71); it is a conclusion that to extend constitutional protection to the respondent’s claim finds no support in the pre-1982 jurisprudence and would overshoot the purpose of s 35(1). In terms of sovereign incompatibility, it is a conclusion that the respondent’s claim relates to national interests that all of us have in common rather than to distinctive interests that for some purposes differentiate an aboriginal community. In my view, reconciliation of these interests in this particular case favours an affirmation of our collective sovereignty.
...
171. The question under consideration here is rather different from the question discussed in that passage. It is not about post-1982 extinguishment. It is about the prior question of whether the claimed international trading and mobility right could, as a matter of law, have arisen in the first place.
172. It was, of course, an expression of sovereignty in 1982 to recognise existing aboriginal rights under s 35(1) of the Constitution Act, 1982. However, if the claimed aboriginal right did not survive the transition to non-Mohawk sovereignty, there was nothing in existence in 1982 to which s 35(1) protection of existing aboriginal rights could attach. It would have been, of course, quite within the sovereign’s power to confer specific border privileges by treaty, but the respondent’s claim to a treaty right was dismissed.
173. In my respectful view the claimed aboriginal right never came into existence and it is unnecessary to consider the Crown’s argument that whatever aboriginal rights in this respect may have existed were extinguished by border controls enforced by Canada prior to April 17, 1982.
174. I would allow the appeal.
Solicitor for the appellant:
The Deputy Attorney General of Canada, Ottawa
Solicitors for the respondent:
Hutchins, Soroka & Dionne, Montréal
Solicitor for the intervener the Attorney General of Quebec:
The Department of Justice, Sainte-Foy
Solicitor for the intervener the Attorney General for New Brunswick:
The Solicitor General for the Province of New Brunswick, Fredericton
Solicitors for the intervener the Attorney General of Manitoba:
Borden Ladner Gervais, Vancouver
Solicitor for the intervener the Attorney General of British Columbia:
The Attorney General of British Columbia
Solicitors for the intervener the Mohawk Council of Kahnawake:
The Mohawk Council of Kahnawake Legal Services, Kahnawake
Solicitors for the intervener the Assembly of First Nations:
Pitblado Buchwald Asper, Winnipeg
Solicitor for the intervener the Union of New Brunswick Indians:
Bear Law Office, Maliseet, New Brunswick
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