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A new era in Canadian law – CBA National Magazine

by ahnationtalk on December 12, 202350 Views

11 Dec 2023

What a difference a few decades can make. Back in 2001, lawyer Elisabeth Patterson’s boss, Peter Hutchins, was acting for Grand Chief Michael Mitchell as the Mohawk leader pursued a legal challenge of Canadian customs law all the way up to the Supreme Court. He lost.

In 1988, Mitchell crossed the border carrying goods he bought in the U.S. He argued he was exempt from paying duties because his aboriginal and treaty rights allowed members of his nation to trade freely across the St. Lawrence. The Federal Court trial and appeal divisions agreed with him. The Supreme Court did not.

It’s worth revisiting the top court’s reasons for rejecting Grand Chief Mitchell’s claim now — if only to understand the earthquake in Indigenous rights jurisprudence the Quebec Superior Court delivered in November when it stayed federal charges against two Mohawk men, Derek White and Hunter Montour, for not paying excise tax on tobacco products.

“The arguments in both cases were basically the same — that the border cannot be an impediment to Indigenous trade,” said Patterson, a partner at Dionne Schulze in Aboriginal, environmental and commercial law.

“But society has changed a lot in the 22 years since Mitchell. The way our elected leaders talk about Indigenous rights and self-government has changed. It’s a different landscape.”

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