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Landmark Canadian case “an earthquake in Indigenous rights jurisprudence"

Giovanni Torre -

The Quebec Superior Court last month stayed federal charges against two Mohawk men; sparking what some legal experts have called "an earthquake in Indigenous rights jurisprudence."

In 2016, Derek White and Hunter Montour were charged with importing large amounts of tobacco into Canada from the United States without paying millions of dollars in taxes.

Their defence asserted an Aboriginal right to trade based on 18th century treaties; which required historical expertise to prove.

Professor Jon W. Parmenter, a historian of colonial North America, specialising in the history of indigenous peoples in the Northeast, particularly that of the Haudenosaunee (former Iroquois), was called to the stand in 2021.

Kate Blackwood, reporting for Cornell's College of Arts & Sciences, noted that Professor Parmenter helped the defence successfully make the case that a specific treaty between Indigenous nations and the British Crown was recognised on 20 different occasions between 1700 and 1760 and is still legally binding, and thus the defendants do not owe tax.

The defence attorneys for the two men learned of the Professor's expertise through his book, The Edge of the Woods: Iroquoia, 1534-1701.

"The question I was tasked to answer was to what degree did the British Crown recognise the right of the Haudenosaunee [a confederacy that includes the Mohawks] to engage in trade across international boundaries at and shortly after the time of contact," Professor Parmenter said.

"Because I've researched that issue for many years, I was able to provide a lengthy paper trail documenting that the Crown not only recognized the right of Mohawk people to trade across what at the time were intercolonial boundaries between colonial New France, Quebec and colonial British America in New York, its officials actually encouraged it because it was profitable for everyone involved."

Professor Parmenter submitted a written report of about 120 pages, then testified in the Montreal courtroom via video from Ithaca for a total of two days in 2021, Ms Blackwood reported for Cornell's College of Arts & Sciences. The court's final decision came in November 2023.

Professor Parmenter's testimony, together with several other expert witnesses, built a case that Mr White and Mr Montour do have treaty-guaranteed rights as Indigenous people.

The argument convinced Quebec Superior Court Justice Sophie Bourque.

Professor Parmenter noted that the judge avoided what he described as the common error of assuming the ultimate outcome of the colonial process - the subjugation of Indigenous peoples and the consequent abandonment of treaties - as something that was clearly predictable to people at the time the treaties were agreed upon.

"When you try to understand it as people at the time would have, these [treaties] were necessary and important concessions because the Haudenosaunee had the military capacity to create significant problems for the British," he said.

Justice Bourque's decision to stay the federal charges against White and Montour was based on bringing Canadian law into alignment with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which Canada endorsed in 2016 and enshrined into law in 2021.

"It's a rare moment where testimony on behalf of Indigenous rights actually persuaded a judge," Professor Parmenter said.

The governments of Quebec and Canada have since appealed the decision, which was brought down on 1 November, and Professor Parmenter expects the case will ultimately be resolved before the Supreme Court of Canada, Cornell's College of Arts & Sciences reports.

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