By Lloyd Dolha
A 13-year legal battle to establish an aboriginal right for cross-border immunity to taxation ended on May 24, 2001 when the Supreme Court of Canada handed down its unanimous ruling in Mitchell that declared the Mohawks of Akwesasne must pay duty on goods brought across the Canada-US border.
Citing a lack of evidence to support their claim, the Supreme Court ruled 7-0 that the aboriginal right claimed had not been established and ordered Akwesasne Grand Chief Mike Mitchell to pay $361.64 in duty on items he brought into Canada from New York in a symbolic border-crossing to initiate the test case.
“While appellate courts grant considerable deference to findings of fact made by trial judges, the finding of a cross-border trading right in this case represents, in view of the paucity of evidence, a “clear and palpable error.” Evidentiary principles must be sensitively applied to aboriginal claims but they cannot be strained beyond reason.” wrote Chief Justice Beverley McLachlin.
Grand Chief Mike Mitchell of the Mohawk Council of Akwesasne expressed bitter disappointment at the ruling of the court suggesting that the ruling was, in part, the Supreme Court’s response to the furor ignited on the east coast by the court’s September ruling in Marshall of September 1999, which found a treaty right for increased access to the fisheries for the Mi’kmaq of the east coast. Mitchell, who grew up watching Customs agents confiscating goods at the checkpoint near his home, said he “just lost faith in the Canadian system.”
The decision overturned earlier rulings of the Federal Court and the Federal Court of Appeal which found that the Mohawks have a historical right to immunity from paying duty taxes on goods brought over the Canada-US border.
The Mohawks of Akwesasne number over 5200. They straddle the Canada-US border living on reserves located on Cornwall Island as well as several other islands on the St. Lawrence River at Cornwall and in the St. Regis village and islands in Quebec.
The Mohawks argued the right as a right to bring goods into Canada from the United States for: personal use; community use; and, non-commercial scale trade with other First Nations. They say that, in its decision, the Supreme Court re-characterized the aboriginal right claimed in the case.
“Rather than examine the question of bringing goods for personal and community use, the Supreme Court concentrated only on the trading component of our aboriginal rights. There is nothing in the majority of the court’s reasons rejecting the views expressed by the trial judge and the court of appeal on goods for personal use and community consumption at Akwesasne.” stated the Mohawk Council press release of that day.
In emphasizing the need to establish trade to the north as a central and defining feature of Mohawk society at the time, the court ruled that the evidence showed that the Mohawks engaged in east-west trade before European settlers arrived, but not a north-south relationship because Mohawks on either side of the St Lawrence River were constantly at war.
“In the present case, the evidence indicates that the Mohawks traveled north on occasion and trade was a distinguishing feature of their society. The evidence does not show, however, an ancestral practice of trading north of the St. Lawrence River … Even if the trial judge’s generous interpretation of the evidence was accepted, it discloses negligible transportation and trade of goods by the Mohawks north of the St. Lawrence River prior to contact. This trade was not vital to the Mohawk’s collective identity. It follows that no aboriginal right to bring goods across the border for the purposes of trade has been established.” ruled the court.
AFN National Chief Matthew Coon Come was also extremely critical of the Supreme Court ruling, charging that the ruling is grounded in a colonial mentality that perpetuates poverty among First Nations.
“The Supreme Court seems to be moving in a further direction, recalling Marshall Two, of narrowing the trade and commercial rights of indigenous peoples in Canada. Our socio-economic conditions are terrible; as observed by the Royal Commission, First Nations peoples have been marginalized and locked out. The Supreme Court ruling perpetuates this disturbing trend.” said Coon Come.
Aboriginal rights advocates now argue that the courts are rendering such rights impotent against the political and economic demands of non-aboriginal Canada. Indeed, the ruling states:
“The enactment of s. 35(1) of the Constitution Act, 1982 accorded constitutional status to existing aboriginal and treaty rights, including aboriginal rights recognized at common law. However, the government retained the jurisdiction to limit aboriginal rights for justifiable reasons in the pursuit of substantial and compelling public objectives.”
That statement is drawn from the second Marshall decision of November 1999, when the Supreme Court issued a rare clarification of its earlier ruling, in which the same court ruled that the federal government’s power to regulate the Mi’kmaq treaty right to an extended fishery “extends to other compelling and substantial public objectives which may include economic and regional fairness, and recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups.” It’s a direct quote from Gladstone (1996) which argued an aboriginal right for the commercial sale of herring roe-on-kelp and similar wording is found in Delgamuukw (1997).
Nevertheless, the Mohawks of Akwesane are determined to move forward on this issue through negotiation.
“The Mohawk people, through the past three and a half centuries have survived between colonizing nations. First the English and the French. Then between the British and the United States. Then between Canada and the United States. We are determined that our nation and our rights will continue to survive. The Supreme Court’s decision has not, in our view, resolved the border crossing issue. We prefer the court’s conclusion four years ago in Delagamuukw, that these issues are best left to negotiation.”