When The Courts Are Called Upon To Formally Rule On The Scope Of S. 35, Montour Provides A Racially Just Approach

In the second article of our firm's four-part series on Montour, I examine how Montour's shift in thinking about Aboriginal rights marks a crossroads in Canadian law's commitment ...
Canada Government, Public Sector
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In the second article of our firm's four-part series on Montour1, I examine how Montour's shift in thinking about Aboriginal rights marks a crossroads in Canadian law's commitment to racial justice in judicial decision-making.

In Montour, Justice Bourque of the Québec Superior Court set the stage for eliminating the Van der Peet test. If our legal system can become truly just, it must include racial justice, leaving no place for the Van der Peet test. The choices that judges make will determine whether we get there.

Van der Peet's cultural essentialism is untenable in a racially just legal system

The Van der Peet test relies on cultural essentialism, a tool used in and born out of the oppression of racialized peoples, to define when Indigenous practices are worthy of legal protection and when they are not. Cultural essentialism is based on the belief that every person categorized as part of a racial group behaves and believes in the same things in the same ways.2 It assumes each race has distinctive cultural behaviours.3 Essentialism has provided the foundation for slavery, eugenics, apartheid and genocide.4 This author argues it should have no place in Canadian law.

And yet cultural essentialism is inherent in the Van der Peet test. The test is premised on the idea that Indigenous peoples have a set of pre-contact practices, customs and traditions that define them, i.e. that are "integral to [their] distinctive culture."5 And that the only practices, customs and traditions of Indigenous peoples worthy of legal protection are those ones. In applying the test, judges assume that cultural essentialism, and particularly, a period-specific pre-contact essence, is relevant and appropriate to determining legal rights.

Montour cuts through the shaky foundations of Van der Peet

Notably, Canadian law does not make this assumption when defining any other rights – just those of Indigenous peoples. Rather, Canadian law defines other rights by looking at the threat posed by the state and the society's value in protecting the claimant's interest from it.6 But in Van der Peet, the Court merely borrowed from an anthropological description of the evidence at issue in a prior case – R v Sparrow. In Sparrow, the Court noted:

The scope of the existing Musqueam right to fish must now be delineated. The anthropological evidence relied on to establish the existence of the right suggests that, for the Musqueam, the salmon fishery has always constituted an integral part of their distinctive culture. Its significant role involved not only consumption for subsistence purposes, but also consumption of salmon on ceremonial and social occasions.[7]

To be clear, the Sparrow Court did not find that the right existed because the practice was integral to the distinctive culture of the claimant. Earlier in the judgement, it found the right existed because the claimant "was fishing in ancient tribal territory where his ancestors had fished from time immemorial in that part of the mouth of the Fraser River for salmon".8 In other words, the integrality of the salmon fishing to the distinctive culture was material to defining the scope, but had no bearing on the existence, of the right.

Nonetheless, the Van der Peet Court conflated the two ideas. This author does not advocate for relying on cultural essentialism to scope Aboriginal rights either. This only means to spotlight the awkward reasoning the Van der Peet Court used to deal with the question of rights. The fact that courts have continued to unquestionably rely on it is part of the downsides of stare decisis.

In Montour, Justice Bourque rejected this way and crafted a new test. Specifically, the Court looked to the Indigenous peoples themselves and their laws to determine whether a practice attracted legal protection. In doing so, she eliminated the idea cultural essentialism should inform the determination of Aboriginal rights. Eliminating this idea is necessary to work in a racially-just legal system.

Montour gives us a choice to make going forward

Montour marks a crossroads. A path to racial justice lies on one side of it.

Whether we get there depends on whether we confront implicit judicial bias. Legal scholars have long argued that judges impose implicit bias when making decisions.9 Justice Bertha Wilson, the first woman to be appointed to the Supreme Court of Canada, publicly stated that judicial neutrality had not been accomplished in her time on the bench, and would require, in the case of judicial gender bias, laws and the justice system to reflect female as well as male perspectives.10

Similarly, in Montour, Bourque J notes how the Van der Peet test arose at a time of societal ignorance about the pressing need for a reconciliation-centric relationship.11 She was not suggesting that it was Indigenous peoples themselves who were unaware of this need. Nor was she suggesting Van der Peet was shaped outside the courtroom, somehow divorced from judicial choices. What these comments in Montour point to is that Canadian law about Aboriginal rights has been shaped by non-Indigenous judges who themselves had not escaped the ignorance plaguing the society from which they came.

The author does not mean to fault judges, or anyone, for having implicit bias. Some would argue that it is a natural consequence of the human brain's evolution.12 But once we are aware of our implicit biases, we have a choice. Confront and overcome them or not. Justice Wilson, and many others, started a wave of activity to confront and try to overcome judicial gender-based bias, resulting even in legislative reforms such as to the Criminal Code's offence of rape.13 On implicit bias concerning Indigenous peoples, Montour shines a light and asks, will we do the same?


1. 2023 QCCS 4154 [Montour] released November 1, 2023.

2. Ladson-Billings, G. (2012). Through a glass darkly: The persistence of race in education research and scholarship. Educational Researcher, 41(4), 115–120.

3. Smedley, A. & Smedley, B. D. (2005). Race as biology is fiction, racism as a social problem is real: Anthropological and historical perspectives on the social construction of race. American Psychologist, 60 (1), 16–26 at 20.

4. See e.g. Cornell S, Hartmann D. 1998. Ethnicity and Race: Making Identities in a Changing World. Thousand Oaks, CA: Pine Forge Press; Kevles, Daniel J. 1995. In the Name of Eugenics: Genetics and the Uses of Human Heredity. Cambridge, MA: Harvard University Press.

5. R v Van der Peet, [1996] 2 SCR 507 at para 46.

6. Kenji Tokawa, "Van der Peet Turns 20: Revisiting the Rights Equation and Building a New Test for Aboriginal Rights" (2016) 49:2 UBC L Rev 817.

7. R v Sparrow, [1990] 1 SCR 1075 at 1099 [Sparrow]. The Court in Van der Peet cited to this passage at para 45, however, omitted the first sentence indicating that the Sparrow Court was referring to the scope rather than the existence of the right.

8. Sparrow at 1095.

9. Kathleen Mahoney, "Judicial Bias: The Ongoing Challenge" [2015] 2015:1 J Disp Resol 43 at 46 [Mahoney "Judicial Bias].

10. Bertha Wilson, "Will Women Judges Really Make a Difference?", 28 OSGOODE HALL L. J. 507 at 515 (1990).

11. Montour at paras 1205-1215.

12. Jennifer Elek & Andrea Miller, The Evolving Science on Implicit Bias: An updated resource for the State Court Community. National Centre for State Courts (2021).

13. Mahoney, "Judicial Bias" at 46.

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