Quebec judge rules Kanien'kehá:ka have treaty rights to trade tobacco

A Quebec Superior Court judge ordered a stay of proceedings on charges related to tobacco trade against two Kanien'kehá:ka (Mohawk) men on Wednesday, citing treaty rights.

Derek White and Hunter Montour, both from Kahnawà:ke, south of Montreal, were granted a permanent stay of criminal proceedings on charges related to the largest Sûreté du Québec operation targeting a cross-border contraband tobacco ring.

"It's a lot of weight lifted off my chest," White told CBC Indigenous on Thursday.

In 2019, a jury acquitted White on charges of defrauding Quebec of $44 million in tobacco taxes but found the two guilty on federal charges for not paying excise tax on tobacco products.

The pair had asked for a stay of proceedings, arguing that the government had violated their Section 35 Constitutional rights, as well as the United Nations Declaration on the Rights of Indigenous Peoples, and inherent rights as Kanien'kehá:ka to trade tobacco tax-free.

The pair cited the Covenant Chain, a series of agreements starting in the 1700s between the Haudenosaunee Confederacy and British colonies that included the right to trade.

While the Crown argued that the Covenant Chain was not a treaty, Justice Sophie Bourque concluded in her nearly 400-page decision that it was still binding.

She also ruled that the federal Excise Act "unjustifiably infringes" on Section 35 and treaty rights of the defendants, and ordered a stay on their convictions. She wrote that the government also failed a duty to consult with Haudenosaunee, including Kahnawà:ke, on the adoption of the Excise Act.

"It's going to benefit everyone," said White, about the decision. 

Montour echoed similar sentiments.

"It's a history changing event," he said.

"We've always been talking about this, we've always known this, but nobody ever listened, especially the government."

The Mohawk Council of Kahnawà:ke (MCK) described it as a "landmark decision." In a news release Wednesday, the MCK said it will conduct a comprehensive legal analysis of the decision, but congratulated White and Montour.

"The judge meaningfully understood the true essence of the nation-to-nation relationship between the Haudenosaunee and Canada," said Ohén:ton Í:iente ne Ratitsénhaienhs (Grand Chief) Kahsennenhawe Sky-Deer in the release.