Border Crossing Case Fails at Supreme Court of Canada: Mitchell v. Canada
On May 24, 2001 the Supreme Court of Canada issued an important aboriginal law decision in the case of Mitchell v. Canada (Minister of National Revenue - MNR). At issue in this case was whether Michael Mitchell, Grand Chief of the Mohawks of Akwesasne, was exercising an aboriginal right when he brought certain goods into Canada from the United States. Mitchell asserted that he had the aboriginal right to trade with other First Nations without paying customs duties.
On March 22, 1988, Chief Mitchell crossed an international border from the United States to Canada. He stopped at the customs office, declared the goods he brought with him, and asserted that his aboriginal and treaty rights exempted him from paying duty on the goods.
The customs officer told Chief Mitchell that he would be charged duty for the goods and allowed him to continue to Canada. All the goods except for some motor oil were presented to the Tyendinaga Mohawk community as gifts to symbolize the renewal of the historic trading relationship between the two communities. The motor oil was sold to a store in Akwesasne territory for resale to members of the community.
Chief Mitchell was subsequently served a "Notice of Ascertained Forfeiture" for unpaid duty, taxes and penalties. At trial, Justice McKeown ruled that Chief Mitchell possessed an existing aboriginal but not a treaty right "to pass and repass freely across what is now the Canada-United States boundary including the right to bring goods from the United States into Canada for personal and community use without having to pay customs duties on those goods . . ."
The Federal Court of Appeal affirmed Justice McKeown's finding that Chief Mitchell had "an aboriginal right to bring goods into Canada duty-free, subject to limitations based on the evidence of the traditional range of Mohawk trading."
Canada appealed to the Supreme Court of Canada, which ruled unanimously against Chief Mitchell. The judgment issued by Chief Justice McLachlin for five judges is a conventional aboriginal rights ruling. The Chief Justice sets out the test that First Nations must meet in order to establish aboriginal rights in Court. She notes that when Europeans asserted sovereignty over Canada, there "... arose an obligation to treat aboriginal peoples fairly and honourably and to protect them from exploitation, a duty characterized as ‘fiduciary' in Guerin v. Canada". She noted that European settlement did not terminate the rights of aboriginal peoples, but rather the "practices, customs, and traditions that defined the various aboriginal societies as distinctive cultures continued as part of the law of Canada...".
The Chief Justice went on to note that these common law aboriginal rights were "vulnerable to unilateral extinguishment" by the Crown. The situation changed in 1982 when s.35(1) of the Constitution Act, 1982 "elevated existing common law aboriginal rights to constitutional status". This is a useful confirmation of a position that Aboriginal peoples have put forward repeatedly - namely that the Crown cannot unilaterally extinguish constitutionally protected aboriginal rights.
She noted, as other cases have in the past, that the Crown has the jurisdiction to "limit aboriginal rights for justifiable reasons, in pursuit of substantial and compelling public objectives".
Chief Justice McLachlin emphasized the law, as set out by the Supreme Court of Canada in Delgamuukw, that oral histories of First Nations must be given due regard in Court. She repeated the caution set out by earlier Supreme Court of Canada decisions that s.35 rights should not be "rendered illusory by imposing an impossible burden of proof on those claiming this protection". She went on to note, however, that the Courts will not uncritically and always accept oral evidence as correct.
The Court's position underlines the practical importance of ensuring that one's evidence, whether oral or written, be as strong as possible in order to maximize the likelihood of winning in Court. Applying this approach to evidence, the Chief Justice found that the lower Courts in that case had erred in concluding that Mitchell had established an aboriginal practice of transporting goods across the St. Lawrence River for the purposes of trade.
In the alternative, the Chief Justice concluded that even if this practice had been established, the evidence did not suggest that the practice was integral to Mohawk culture. Accordingly, the evidence was not sufficient to make out an aboriginal right.
Justice Binnie delivered an interesting judgment, speaking only for himself and Justice Major. Justice Binnie agreed with the Chief Justice that the aboriginal right in question had not been sufficiently established on the evidence. He went on, however, to discuss the broader issue of whether a right to bring goods into Canada for the purpose of trade could be an aboriginal right.
Justice Binnie emphasized that the caselaw has underlined the need to reconcile aboriginal rights with Canadian sovereignty. Part of this analysis is what Binnie calls the "doctrine of sovereign incompatibility".
This doctrine places inherent limits on the scope of aboriginal rights. Canadian sovereignty, Binnie notes, has certain inherent characteristics. He would refuse to give effect to any aboriginal right that conflicts with Canadian sovereignty. For example, he would not agree that the Mohawks could acquire a legal right "to deploy a military force" even if this was consistent with the warrior tradition of the Mohawk society. Similarly, he would not give effect to any aboriginal right that would interfere with the ability of Canada to control its borders. Border control, Binnie concluded, is a critical incident to territorial sovereignty.
Justice Binnie is careful in his analysis not to rule against the concept of an inherent right to aboriginal self government. He noted that the concept of aboriginal self government poses a challenge "to the orthodox view that constitutional powers in Canada are wholly and exhaustively distributed between the federal and provincial governments". He stated that this is precisely the issue before the British Columbia Courts in the Campbell case.
Justice Binnie in no way rules out the concept of an inherent aboriginal right to self government. Indeed, he seems to conclude that the finding of an aboriginal right would necessarily create some "constitutional space" required to accommodate particular activities. The point that Justice Binnie seems to be making here, and we believe it is a correct and important one, is that the finding of an aboriginal right (including title) implies the existence of further aboriginal governance rights. Thus, the right to fish may well include a right to traditional governance practices that surrounded fishing. A finding of aboriginal title, which involves a right to use land according to the aboriginal Nation's discretion, would likely imply a protected constitutional right to make those very land use decisions.
In summary, Justice Binnie's decision is a minority statement on the issue of sovereignty. It is one that will likely be accepted by the Courts in the future. The Courts have consistently held that Canada is a sovereign Nation and any position that interferes with Canadian sovereignty will likely be rejected. This, on the other hand, does not imply that aboriginal Nations do not have some form of "limited sovereignty" or inherent self government powers. Indeed, Justice Binnie's decision expressly keeps this issue open and, if anything, is supportive of certain constitutionally protected self government rights.
On the whole, this is an important Supreme Court of Canada decision, but not one that will fundamentally alter the balance in aboriginal litigation. It clearly emphasizes that the First Nation bears the onus of proof of the aboriginal right (including title) in question. It also emphasizes that while oral evidence must be considered and given due weight, oral evidence must and will be considered and assessed by the Courts.
Finally, Justice Binnie's decision suggests that aboriginal rights that challenge Canadian sovereignty will not be accepted, but that this decision does not in any way rule out the potential for the establishment of constitutionally protected aboriginal self government powers.