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Quebec Court Finds UNDRIP Binding and a Universal Aboriginal Right to Economic Development – Cassels

by ahnationtalk on November 28, 202355 Views

On November 1, 2023, the Quebec Superior Court (Court) released R. c. Montour, which considered whether two First Nation-member defendants were criminally liable for importing substantial amounts of tobacco without paying duties under the Excise Act, 2001.1 R. c. Montour found that the defendants, as members of the Mohawks of Kahnawà:ke, were exempt from import taxes on tobacco under the Excise Act, 2001 based on the following:2

  • The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) should be given the same weight as a binding international instrument when interpreting section 35 of the Constitution Act, 1982 (Section 35);3
  • The test for Aboriginal rights, originally set out in the Supreme Court of Canada’s (SCC) 1996 decision v. Van der Peet, must be updated and reformulated to reflect a more modern understanding of Indigenous rights and reconciliation, including those reflected in UNDRIP;4 and
  • Under the revised approach to determining Aboriginal rights, Indigenous peoples have a general right to economic development within their communities under Section 35.5

R. c. Montour’s findings represent a notable departure from and potential evolution of existing law. The findings also run contrary to many recent decisions on UNDRIP and Aboriginal rights in other Canadian courts. Given that R. c. Montour was released by a superior court, it remains to be seen if its findings are upheld at the appellate level or applied elsewhere in Canada.

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