Mitchell v. M.N.R.
T-434-90
McKeown J.
27/6/97
105 pp.
Appeal from MNR's decision demanding payment of customs duty when plaintiff, Mohawk, descendant of Mohawk nation located in Mohawk Valley (New York), arrived at Canada-United States border at Cornwall in 1988 and sought to bring into Canada certain goods described as personal and community goods: one washing machine, 10 blankets, 20 bibles, various articles of used clothing, one case of lubricating oil, 10 loaves of bread, 2 pounds of butter, 4 gallons of whole mild, 6 bags of cookies and 12 cans of soup-Customs officials charged plaintiff duty in amount of $361.64 which plaintiff refused to pay, asserting Aboriginal and treaty rights under Constitution-Issues (1) Whether Mohawks of Akwesasne resident in Canada have Aboriginal right to bring personal and community goods across border, duty and tax free-(2) Whether Mohawks of Akwesasne have right to trade freely across border with other First Nations, and, if yes, contents of that right-(3) Whether Mohawks of Akwesasne resident in Canada have treaty rights to trade across border with other First Nations and to bring personal and community goods into Canada without paying duties or taxes-Appeal allowed-(1-2) Aboriginal rights-Test for identifying Aboriginal rights: must be derived from pre-contact (between Europeans and Aboriginal peoples) activity, itself element of practice, custom or tradition integral to Aboriginal claimant's distinctive culture-Whether, without this practice, tradition or custom, would culture in question be fundamentally altered-Practices, customs and traditions which constitute Aboriginal rights those which have continuity with traditions, customs and practices integral to Aboriginal society prior to contact-Relevant time period: period prior to contact with Europeans-Therefore, where Aboriginal community can demonstrate particular practice integral to its distinctive culture today, and that practice, custom or tradition has continuity with practices of pre-contact times, that community will have demonstrated that practice, custom or tradition Aboriginal right for purposes of Constitution Act, s. 35(1)-Scope and existence of Aboriginal rights must be determined on case-by-case basis-As to nature of right being claimed, amount of goods brought into Canada herein by plaintiff cannot be characterized as "commercial"-Claim best characterized as right to pass freely across Canada-United States border with goods for personal and community use and for small, non-commercial scale trade with other First Nations-As to entitlement to Aboriginal right, plaintiff and Mohawks of Akwesasne resident in Canada entitled to claim right based on activity of ancestors who lived in Mohawk Valley prior to arrival of Europeans-On evidence, first contact: 1609-Plaintiff, Mohawk of Akwesasne, tracing ancestral roots to Mohawks of Mohawk Valley-Akwesasne Mohawk affiliated to Iroquois Confederacy since XVth century-In 1888, Akwesasne became capital of Mohawk nation-Mohawks frequently travelled North into Canadian territory from homelands in Mohawk Valley, and freely crossed what is now CanadaUnited States boundary-Akwesasne part of Mohawk nation and part of Six Nations Confederacy-After first contact with Europeans, Mohawks continued travelling North into Canadian territory from homelands in Mohawk Valley and crossed boundary freely-Mohawks established homelands in Canada and in Akwesasne-Testimony on pre-contact period indicating trade of vital importance to Iroquois people and evidence of small-scale, long-distance trade-In 1645 Iroquois concluded treaty with French and Hurons to open access to trade between parties-In 1664, Five Nations Confederacy concluded treaty with British, providing Iroquois to have free trade, as formerly-Mohawks frequently travelled across what became Canada-United States boundary in pursuit of trade and to engage in commercially motivated warfare-Mohawks involved in Montréal-Albany trade-Territory in and around Akwesasne used by Mohawks for purposes of travel, diplomacy and trade prior to arrival of Europeans-Right plaintiff claims practice integral to distinctive culture of Mohawks of Akwesasne-Therefore, plaintiff and Mohawks of Akwesasne have established Aboriginal right to pass and repass freely what is now Canada-United States boundary with goods for personal and community use and for trade with other First Nations-(3) Treaty rights-Treaty of Utrecht of 1713 (between France, Spain and Bavaria on one side, and England, United Provinces and Hapsburg Empire on other), Jay Treaty of 1794 (between Britain and United States) and councils, Treaty of Ghent of 1814 (between United States and Britain) and councils not treaties within meaning of Constitution Act, 1982, s. 35 as not treaties between Crown and Indians: R. v. Vincent (1993), 12 O.R. (3d) 427 (C.A.)-Indians may have benefitted from provisions therein, but not parties thereto, nor involved in negotiation, execution or terminations thereof-International treaties cannot confer rights on individuals or groups-Councils referred to were meetings used to explain contents of Jay and Ghent treaties to First Nations, not treaty making councils-Provisions of international treaties referring to Indians do not amount to estoppel creating rights for plaintiff-However, wording of Jay Treaty "goods and bales and other large packages, unusual among Indians shall not be considered as goods belonging bona fide to Indians" reinforcing characterization of Aboriginal right as one exercised on non-commercial scale-Therefore, goods for "personal and community use" can be brought into Canada in accordance with plaintiff's Aboriginal right-Such goods including goods used for sustenance, household goods and goods used for First Nations' custom-Wording of Jay Treaty also supporting characterization of plaintiff's Aborig inal right as right to trade such goods on non-commercial scale with other First Nations-Nothing in any legislation, including Customs Act, to demonstrate clear and plain intention on part of Crown to extinguish plaintiff's Aboriginal right to pass and repass freely Canada-United States boundary with personal and community goods and to trade such goods with other First Nations-Plaintiff as Mohawk of Akwesasne resident in Canada has existing Aboriginal right, as defined above, protected by Constitution Act, 1982, ss. 35 and 52-Said Aboriginal right not including right to bring into Canada any firearms, restricted or prohibited alcohol, plants and like-Aboriginal right also limited to extent any Mohawk of Akwesasne entering Canada with goods from United States will be subject to search and declaration procedures at Canadian Customs-Provisions of Customs Act inconsistent with plaintiff's Aboriginal right of no force or effect to extent of inconsistency-Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 35, 52-Customs Act, R.S.C., 1985 (2nd Supp.), c. 1.