UNDRIP IN ACTION: White And Montour Decision

In late 2023, the Quebec Superior Court (QCSC) issued a landmark decision in R. c. White et Montour[1], attracting considerable attention and a Crown appeal.
Canada Government, Public Sector
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A New Chapter in Aboriginal Rights Jurisprudence

In late 2023, the Quebec Superior Court (QCSC) issued a landmark decision in R. c. White et Montour 1, attracting considerable attention and a Crown appeal. This ruling marks a pivotal moment in Aboriginal law, potentially reshaping legal interpretations and Canadian jurisprudence.

Montour challenges existing precedents, advocating for a re-examination of legal doctrines given Canada's commitment to the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP 2"). It signifies a shift towards recognizing Aboriginal rights grounded in Indigenous peoples' laws and traditions, in line with the rights affirmed by UNDRIP.

In response to Montour's significance, our firm presents a four-part series of in-depth analyses. Each article will explore a distinct aspect of this critical decision, illuminating its multifaceted implications and potential to redefine the integration of Aboriginal rights within Canada's legal framework.

This first article delves into the heart of Montour, particularly the court's conclusion that Canadian law is presumed to conform with UNDRIP. We will explore how the court's decision, influenced by the evolving understanding of Canada's relationship with Indigenous peoples, sets a precedent for a more inclusive and respectful legal landscape.

Case Overview: Montour

In Montour, Mohawks of Kahnawa:ke members, Derek White and Hunter Montour, contested the federal Excise Act's3 constitutional applicability. Convicted for importing tobacco without paying taxes required under the Act, they argued the Act violated their Aboriginal and treaty rights under the historic Covenant Chain treaty. The QCSC agreed, recognizing their collective right to economic development under s. 35(1) of the Constitution Act, 1982, including a historical treaty right to discuss tobacco trade. Consequently, the court held the Act unjustifiably infringed upon these rights and ordered a permanent stay of the charges against White and Montour.

UNDRIP: Reshaping Canadian law

In Montour, the court recognized UNDRIP as a crucial interpretive tool in Canadian law, akin to a binding international instrument. This implies a presumption of conformity with UNDRIP in Canadian legislation, policy, and law, including s. 35(1) of the Constitution.

This approach is part of the broader movement in Canada to operationalize UNDRIP's foundational rights of Indigenous peoples. The court traced Canada's engagement with UNDRIP from its 2007 adoption by the UN General Assembly to Canada's unqualified endorsement in 2015.

Regarding domestic implementation since then, British Columbia led in 2019 with the Declaration on the Rights of Indigenous Peoples Act or "DRIPA,4" embedding UNDRIP into provincial law and setting a precedent. Following BC's lead, the federal government enacted the UN Declaration on the Rights of Indigenous Peoples Act or "UNDA5" in 2021. UNDA reinforced UNDRIP's growing role in Canadian law at the national level. Most recently, the Northwest Territories' UNDRIP Implementation Act or "UNDRIP-IA,6" passed in 2023, continues this trend, demonstrating a collective commitment across government levels to embrace and implement UNDRIP's minimum standards for Indigenous rights.

Though not a binding international treaty, the court reasoned that Canada gave UNDRIP domestic standing through UNDA and this broader movement of operationalizing UNDRIP into Canadian domestic law. The court's presumption of conformity with UNDRIP indicates a significant legal and societal shift, necessitating that Canadian jurisprudence align with these legislative developments. By embracing UNDRIP as a binding international instrument, the court has set a precedent that could transform s. 35(1) jurisprudence. Viewing Aboriginal rights through the UNDRIP framework, the court opens possibilities for reshaping Canadian law to recognize and protect Indigenous peoples' sovereignty and self-determination over their lands and governance.

New Test for Proof of Aboriginal Rights and Alignment with UNDRIP

Aligning with the court's recognition of UNDRIP as a binding interpretive tool, the Montour decision introduces a new test for proving Aboriginal rights under s. 35(1). This test assesses if a practice is an exercise of a collective right protected by the traditional Indigenous legal system of the Indigenous people claiming the right. This marks a decisive departure from the Supreme Court of Canada's Van der Peet test, aligning more closely with UNDRIP.

The court's reasoning for this new test reflects Canada's evolving understanding of its relationship with Indigenous peoples, influenced by the Royal Commission on Aboriginal Peoples (RCAP), the Truth and Reconciliation Commission (TRC), and the adoption and progressive implementation of UNDRIP.

  1. Collective Rights: The court's approach under the new test emphasizes identifying the collective Indigenous rights or "fundamental norms" within communities. In Montour, the right to freely determine and pursue economic development was recognized as a collective right, aligning with UNDRIP's emphasis on self-determination and economic autonomy. This approach opens the door to acknowledging 'generic' rights common to all Indigenous nations, marking a departure from previous jurisprudence.
  2. Indigenous Legal Orders: The court's decision acknowledges the existence of generic, non-specific Aboriginal rights, i.e. those aspects of the inherent rights that are presumptively protected under all traditional Indigenous legal systems because of their universal nature. Here, the court's decision draws on the Quebec Court' of Appeal's interpretation in the Bill C-92 Reference. The SCC's forthcoming decision on the Bill C-92 Reference is expected to further clarify this approach.

The Montour decision, particularly in recognizing economic development as a collective right, aligns with UNDRIP's focus on self-determination and economic autonomy. This approach could broaden the recognition of other generic rights held by all Indigenous peoples, as the Crown has recognized legislatively through Bill C-92 and the Indigenous Languages Act7.

The Montour test marks a pivotal shift in Aboriginal rights jurisprudence by placing Indigenous legal systems at the forefront. It moves beyond the limitations of pre-contact practices, focusing instead on the traditional legal systems of Indigenous peoples. This realignment with UNDRIP paves the way for profound changes in the legal landscape. A notable example is implementing Free, Prior and Informed Consent (FPIC), a core component of UNDRIP. This requires re-evaluating the existing 'duty to consult and accommodate' framework, which falls short in respecting Indigenous self-determination and does not align with UNDRIP. Embracing this challenge, Montour could lead to a legal framework that not only integrates but also prioritizes Indigenous legal orders and traditions in decision-making processes. This approach promises a more inclusive and respectful legal framework, realigning Canadian jurisprudence with the spirit and requirements of UNDRIP.

Embracing Reconciliation and Indigenous Sovereignty

The Montour decision heralds a new era of reconciliation, affirming Indigenous peoples are not mere participants in a settler-defined legal system, but sovereign entities with rich, complex legal orders of their own. It challenges us to confront and dismantle colonial frameworks that have historically denied this reality. As stated in Montour, it requires courts to "reject all forms of colonialism, as well as any reasoning based directly or indirectly on the doctrine of terra nullius and discovery8." This is encouraging commentary from the courts, driven by the work and advocacy of Indigenous peoples.

Montour opens a path to honouring and protecting Indigenous legal orders and traditions, moving beyond protracted legal battles to a future where Indigenous rights are not just recognized but woven into Canada's pluralistic legal fabric. This transformative approach demands more than legal acknowledgment; it calls for a moral commitment to respect, protect, and celebrate Indigenous laws and governance systems.

The implications for Indigenous sovereignty and governance are profound and far-reaching. It calls upon us—as a society—to actively engage in a collective effort to uphold Indigenous legal orders. Embracing this change is a step towards healing, inclusivity, and a better society.

This is far more than a legal shift; it's a moral imperative, a call to action for transformative change. As we embrace this path, it's crucial to ensure that Indigenous laws and legal orders are not simply acknowledged but are fully respected and protected, standing as equal and vital components of this land's legal landscape. This commitment is essential for building a future where the rights and dignity of Indigenous peoples are celebrated as an integral part of our society such that it is grounded in true reconciliation and mutual respect.


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

2. 2 October 2007, A/RES/61/295.

3. R.S.C. 1985, c. E-14.

4. S.B.C. 2019, c. 44.

5. S.C. 2021, c. 14

6. S.N.W.T. 2023, c. 36

7. S.C. 2019, c. 23.

8. R. c. Montour, 2023 QCCS 4154 at para. 1292.

Originally published 30 January 2024

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