A-657-97
The Minister of National Revenue (Appellant)
v.
Grand Chief Michael Mitchell, also known as Kanantakeron (Respondent)
and
The Mohawk Council of Kahnawake, in its own right and on behalf of the Mohawk People of Kahnawake (Intervener)
Indexed as: Mitchellv. M.N.R (C.A.)
Court of Appeal, Isaac C.J., Létourneau and Sexton JJ.A."Ottawa, September 14, 15, 16, 17 and November 2, 1998.
Native peoples — Respondent registered Mohawk of Akwesasne residing on Cornwall Island — Entered Canada from New York State with various goods — Declared goods at customs office but refused to pay customs duties alleging Aboriginal right, treaty rights — Aboriginal right claimed right to be exempted from payment of customs duties when entering Canada from U.S.A. — Trial Judge failing to determine geographical scope of right — Right limited to non-commercial trade of goods acquired in New York State with other First Nation communities in Quebec, Ontario.
Customs and Excise — Customs Act — Respondent, Mohawk resident of Akwesasne, allegedly evading payment of duties on goods contrary to Customs Act, s. 153(c) — Claiming right to be exempt from payment of customs duties when crossing Canadian border for goods bought in U.S.A. — Customs Act, 1970, s. 22(1) governing provision for payment of duty — Ability to regulate application of duties integral part of Act — Aboriginal right not extinguished prior to 1982 by Customs Act.
Constitutional law — Aboriginal and Treaty Rights — Respondent, as Mohawk of Akwesasne, granted Aboriginal right to cross Canada-United States border, including right to bring goods for personal, community use, without having to pay customs duties — Right protected under Constitution Act, 1982, ss. 35, 52 — Trial Judge failing to impose geographical restrictions upon Aboriginal right — Respondent's Aboriginal right including right to duty-free trade with other First Nation Communities on non-commercial scale — Jay Treaty not limiting scope of Aboriginal right — Right protected by Constitution unless extinguished — Aboriginal right not extinguished by Customs Act.
These were an appeal and a cross-appeal from a Trial Division decision declaring inter alia that the respondent, as a Mohawk of Akwesasne resident in Canada, had an existing Aboriginal right to cross the Canada-United States border, including the right to bring goods from United States into Canada for personal and community use, without having to pay customs duties on those goods. On March 22, 1988, the respondent entered Canada from the State of New York at Cornwall Island with various goods. He declared the goods at the Cornwall customs office but refused to pay the customs duties alleging an existing Aboriginal right as well as treaty rights to an exemption from such duties. The goods were not seized by the customs officers, but it was alleged that the respondent had failed to pay the duties on the goods as required by paragraph 153(c) of the Customs Act. The Trial Judge found, among other things, that the Aboriginal right claimed by the respondent included the right to bring goods for personal and community use from the United States into Canada for non-commercial scale trade with the First Nations. He also ruled that any Mohawk of Akwesasne entering Canada from the United States with goods will be subject to search and declaration procedures at Canadian customs, and finally declared any provisions of the Customs Act which are inconsistent with the Aboriginal right to be of no force or effect to the extent of the inconsistency. Two main issues were addressed on appeal: (1) the nature, scope and extent of the Aboriginal right recognized by the Trial Judge and (2) whether the Trial Judge erred in concluding that the respondent's right had not been extinguished by the Customs Act prior to 1982 (when treaty rights were accorded constitutional protection).
Held, the appeal should be allowed in part; the cross-appeal should be dismissed.
Per Létourneau J.A.: (1) The right claimed by the respondent is the right to be exempt from the payment of customs duties when crossing the Canadian border in respect of goods purchased in the United States. The Trial Judge inadvertently transformed the Aboriginal right to be exempt from customs duties claimed by the respondent into an international mobility right, that is a right to travel freely across the Canada-United States border, including the right to be exempted from the payment of customs duties. The international mobility right thus granted to the respondent is much broader in scope than the right he had originally claimed as it may relate to the existence and exercise of litigious personal, economic and commercial mobility rights. The legislative ramifications of such rights are not limited to the Customs Act; they extend to the Citizenship Act, the Immigration Act, the Extradition Act and the various provincial laws regulating the right to reside in a province and gain a livelihood. The declaration issued by the Trial Judge failed to determine the geographical scope of the respondent's Aboriginal right. The Canadian government has a legitimate and pressing interest in effectively protecting its borders and the existing Aboriginal rights, when recognized and protected by section 35 of the Constitution Act, 1982, must be reconcilied with the sovereignty of the Crown. The modern acknowledgment and recognition of the respondent's Aboriginal right required first that it be exercised by his reporting at the Cornwall customs office and, second, that it be claimed only in relation to goods bought in the State of New York. The evidence did not support the Trial Judge's conclusion that the respondent's Aboriginal right entitled him to bring goods from the United States to engage in non-commercial trading with all First Nations' members. Such conclusion overstated the scope of the Aboriginal right at issue.
The respondent was, in fact, claiming a right to an exemption whose content is the same whether it finds its source in the Mohawks' practices and traditions or the terms of the Jay Treaty which is said to embody such practices and traditions. The first paragraph of Article III that Treaty indicates no intention on the part of the parties to the Treaty to exempt from the payment of customs duties the trade and commerce that would be resumed between the two states. The second paragraph clearly establishes, as a rule, an obligation to pay customs duties on all goods whose importation is not prohibited. The purpose of Article III of the Treaty was to guarantee freedom of trade, rather than free trade, to everyone. The respondent's Aboriginal right is the right, when crossing the international border at Cornwall Island, to bring with himself into Canada, for personal use or consumption, or for collective use or consumption by the members of the community of Akwesasne, goods bought in the State of New York without having to pay any duties or taxes to the Canadian government. Paragraph 1 of the declaration issued by the Trial Judge should be amended accordingly.
(2) The appellant has not satisfied the onus of demonstrating that the Customs Act exhibits the "clear and plain intention" necessary to extinguish the Aboriginal right. The adoption of section 35 of the Constitution Act, 1982 makes clear that if the right was extinguished it would have had to be before 1982. Thus the current Act is not relevant to the question of extinguishment. Sections 9 and 18 of the 1970 Customs Act, relied on by the appellant, do not address the question of duties and therefore cannot extinguish the Aboriginal right to bring in personal and community goods duty free. The fact that the Governor in Council may regulate the application of duties in the Customs Act is inconsistent with the appellant's assertion that the Act is an absolute bar to duty-free entry. The ability to regulate the application of duties is not merely a passing feature of the legislation but an integral part of the Act and has been retained in the current Act. The evidence revealed no clear intention on the part of those charged with enforcing the Customs Act to extinguish the respondent's Aboriginal right.
Per Sexton J.A.: The Trial Judge did not err in finding that the respondent's Aboriginal right includes the right to bring in goods intended for non-commercial scale trade (right to duty-free trade) with other First Nation communities. This finding was not dependent on his conclusion that Article III of the Jay Treaty grants the identical right. Consequently, the Trial Judge did not commit a palpable or overriding error in making his finding that would warrant the intervention of the Court. He properly considered the totality of the evidence of pre-contact trade before coming to his conclusion. Such evidence supported the Trial Judge's finding that the respondent's Aboriginal right included the right to duty-free trade with other First Nation communities on a non-commercial scale. The Trial Judge's interpretation of the Jay Treaty supported his finding that the Aboriginal right included the right to duty-free trade. The Jay Treaty could not be employed to limit the scope of the Aboriginal right. Once it has been determined that the test for the existence of an Aboriginal right has been satisfied, this right is protected by the Constitution unless it has been extinguished. The fact that Aboriginals may have been granted a more limited form of the Aboriginal right in an international treaty cannot serve to restrict the right which is protected by section 35 of the Constitution Act, 1982. The Trial Judge made no error in relying on the Jay Treaty as support for the Aboriginal right to duty-free trade. However, he failed to impose any geographical restrictions on the Aboriginal right. The modern form of the Aboriginal right is the right to purchase goods anywhere in the State of New York and to bring these goods duty-free across the New York-Quebec or New York-Ontario border. Trading was historically limited to members of the First Nations in Quebec, Ontario and the State of New York. Consequently, the respondent's right is further restricted to goods intended for personal or community use or for non-commercial trade with other First Nation communities living in Ontario or Quebec.
statutes and regulations judicially considered
Citizenship Act, R.S.C., 1985, c. C-29.
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. 1970, c. C-40, ss. 9, 18, 22(1),(3).
Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, ss. 32(6) (as am. by S.C. 1992, c. 28, s. 5), 131 (as am. by S.C. 1993, c. 25, s. 84), 153(c).
Extradition Act, R.S.C., 1985, c. E-23.
Federal Court Rules, C.R.C., c. 663.
Immigration Act, R.S.C., 1985, c. I-2.
Indian Act, R.S.C., 1985, c. I-5.
Jay Treaty (1794).
Treaty of Ghent (1814).
Treaty of Utrecht (1713).
cases judicially considered
applied:
R. v. Adams, [1996] 3 S.C.R. 101; (1996), 138 D.L.R. (4th) 657; 110 C.C.C. (3d) 97; [1996] 4 C.N.L.R. 1; 202 N.R. 89.
referred to:
Watt v. Liebelt and Canada (Minister of Citizenship and Immigration) (1994), 82 F.T.R. 57 (F.C.T.D.); Ekiu v. United States, 142 U.S. 651 (1892); Attorney-General for Canada v. Cain, [1906] A.C. 542 (P.C.); R. v. Jacques, [1996] 3 S.C.R. 312; (1996), 110 C.C.C. (3d) 1; 202 N.R. 49; R. v. Sparrow, [1990] 1 S.C.R. 1075; (1990), 70 D.L.R. (4th) 385; [1990] 4 W.W.R. 410; 46 B.C.L.R. (2d) 1; 56 C.C.C. (3d) 263; [1990] 3 C.N.L.R. 160; 111 N.R. 241; R. v. Van der Peet, [1996] 2 S.C.R. 507; (1996), 80 B.C.A.C. 81; 200 N.R. 1; 130 W.A.C. 81; R. v. Gladstone, [1996] 2 S.C.R. 723; (1996), 137 D.L.R. (4th) 648; [1996] 9 W.W.R. 149; 79 B.C.A.C. 161; 23 B.C.L.R. (3d) 155; 109 C.C.C. (3d) 193; [1996] 4 C.N.L.R. 65; 50 C.R. (4th) 111; 200 N.R. 189; 129 W.A.C. 161; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
authors cited
Beaudoin, Gérald A. and Errol P. Mendes, eds. The Canadian Charter of Rights and Freedoms, 3rd ed. Toronto: Carswell, 1996.
Brun, Henri et Guy Tremblay. Droit constitutionnel, 3e éd. Cowansville (Qué.): Éditions Yvon Blais, 1997.
Richter, Daniel, "Ordeal of the Longhouse: The Five Nations in Early American History" in D. K. Richter and J. H. Merrel eds., Beyond the Covenant Chain: The Iroquois and their Neighbors in Indian North America 1600-1800 , Syracuse, N.Y.: Syracuse University Press, 1987.
van den Bogaert, Harmen Meyndertsz. A Journey into Mohawk and Oneida Country, 1634-1635, Syracuse, N.Y.: Syracuse University Press, 1988.
APPEAL and CROSS-APPEAL from a Trial Division decision ((1997), 134 F.T.R. 1) declaring that the respondent had, as a Mohawk of Akwesasne resident in Canada, an existing Aboriginal right protected by sections 35 and 52 of the Constitution Act, 1982 to cross the Canada-United States border, including the right to bring goods from United States into Canada for personal and community use, without having to pay customs duties on those goods. Appeal allowed in part, cross-appeal dismissed.
appearances:
Graham R. Garton, Q.C., and Sandra E. Phillips for appellant.
Peter W. Hutchins, Anjali Choksi and Paul Williams for respondent.
François Dandonneau for intervener.
solicitors of record:
Deputy Attorney General of Canada for appellant.
Hutchins, Soroka & Dionne, Montréal, for respondent.
Mohawk Council of Kahnawake, Legal Services, Kaknawake, Quebec, for intervener.
The following are the reasons for judgment rendered in English by
Létourneau J.A.: This is an appeal from a well articulated decision of McKeown J. of the Trial Division, rendered on June 27, 1997 [(1997), 134 F.T.R. 1], by which he granted to the respondent, Grand Chief Mitchell, a declaration that the said respondent had, inter alia [at page 75], "as a Mohawk of Akwesasne resident in Canada . . . an existing aboriginal right which is constitutionally protected by ss. 35 and 52 of the Constitution Act, 1982 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".
In the said declaration, the Trial Judge stated that goods for personal and community use include goods used for sustenance, household goods and goods used for First Nations' custom. He also concluded that the Aboriginal right included the right to bring these goods from the United States into Canada for non-commercial scale trade with the First Nations.
In terms of limitations, he excluded from the Aboriginal right the right to bring into Canada any form of firearm, restricted or prohibited drug, alcohol, plants and the like. He ruled, as a further limitation to the exercise of the Aboriginal right, that any Mohawk of Akwesasne entering in Canada with goods from the United States will be subject to search and declaration procedures at Canadian customs.
Finally, he declared any provisions of the Customs Act, R.S.C., 1985 (2nd Supp), c. 1, which are inconsistent with the Aboriginal right to be of no force or effect to the extent of the inconsistency.
However, in the process of coming to this conclusion, the Trial Judge dismissed two other claims made by the respondent. One was that his right to be exempt from customs duties was also guaranteed or protected by Article XV of the Treaty of Utrecht [1713], Article III of the Jay Treaty [1794] and Article IX of the Treaty of Ghent [1814]. As for the other, the respondent submitted that a series of five Councils or Meetings1 held pursuant to the Treaty of Ghent between representatives of the British Crown and various groups of Aboriginal people to explain the Treaty to them and reassure them resulted in Treaties and created treaty rights protected by sections 35 and 52 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. As for the Aboriginal right, the respondent submitted that these treaty rights had not been extinguished by the Customs Act.
The respondent has launched a cross-appeal against the dismissal of these two claims and the Trial Judge's findings associated with it.
I intend to dispose immediately of the cross-appeal. The Court heard the submissions of the cross-appellant on these issues and called upon counsel for the Minister of National Revenue (Minister), to answer only these two questions: whether the five Meetings or Councils resulted in Treaties or gave rise to treaty rights under section 35 of the Constitution Act, 1982 between the British Crown and the Mohawks of Akwesasne and, if so, whether these rights have been extinguished prior to 1982.
After a careful review of the Trial Judge's decision and the submissions of the parties and the intervener, I see no merit in the cross-appeal. I agree with the conclusions of the Trial Judge substantially for the reasons that he gave. Therefore, I would dismiss the cross-appeal with costs.
[A.]Après examen attentif de la décision de première instance et des conclusions des parties ainsi que de l'intervenant, je juge que l'appel incident n'est pas fondé. Je partage les conclusions du juge de première instance essentiellement pour les mêmes motifs. Je me prononce donc pour le rejet de l'appel incident avec dépens.
The appellant raises a number of issues on appeal but, in my view, only two need be addressed: the nature, scope and extent of the Aboriginal right recognized by the Trial Judge and the submission that the Trial Judge erred in concluding that the respondent's right had not been extinguished prior to 1982 by the Customs Act.
Facts and Procedure
However, before I do, a short summary of the facts is necessary for a better understanding of the right claimed in this case. The respondent is a registered Mohawk of Akwesasne under the Indian Act, R.S.C., 1985, c. I-5. He resides on Cornwall Island which is part of the Akwesasne Indian Reserve in the Province of Ontario.
He entered Canada from the State of New York on March 22, 1988 at Cornwall Island with various goods (i.e., a washing machine, 20 bibles, 10 blankets, used clothing, 10 loaves of bread, 2 pounds of butter, 4 gallons of milk, 6 bags of cookies, 12 cans of soup and a case of motor oil) that he had bought in the United States. The goods were destined as gifts to the residents of the Tyendinaga Indian Reserve near Belleville, Ontario, with the exception of the motor oil which the respondent intended to deliver to Jock's Store on Cornwall Island for resale to the residents of the reserve living there.
The respondent declared the goods at the Cornwall customs office but refused to pay the customs duties alleging an existing Aboriginal right as well as treaty rights to an exemption from such duties. The goods were not seized by the customs officers and the respondent was allowed to proceed to the Tyendinaga reserve. On September 15, 1989, he was served with a Notice of Ascertained Forfeiture under the Customs Act and it was alleged that he had evaded payment of the duties on the goods contrary to paragraph 153(c) of the said Act. As a result, the Minister demanded payment of a sum of $361.64 consisting of $142.88 unpaid duty, $98.21 unpaid sales tax and a penalty of $120.55 corresponding to one-half of the revenue evaded.
The respondent requested on the issue a decision of the Minister pursuant to section 131 [as am. by S.C. 1993, c. 25, s. 84] of the Customs Act. Unhappy with the decision, he challenged it by way of an action in the Trial Division.
The Nature, Scope and Extent of the Aboriginal Right in Issue
In his statement of claim (A.B., vol. 1, paragraph 42(a), at page 7) the respondent sought a declaration that, "as a Mohawk of Akwesasne resident in Canada he has an existing aboriginal right which is constitutionally protected by sections 35 and 52 of the Constitution Act, 1982 to pass and repass freely across what is now the Canada-United States boundary with his goods without having to pay any duty or taxes whatsoever to any Canadian government or authority".
It is clear that the right claimed by the respondent is the right to be exempt from the payment of customs duties when crossing the Canadian border for goods that he would have bought in the United States. The whole debate at the hearing before the Trial Judge turned on and was related solely to the scope and impact of the Customs Act on the respondent's right not to pay duties. However, in his written submissions to the Trial Judge, the respondent changed the text of the declaration he was seeking and, in so doing, altered the very nature and contents of the right that he was claiming. No amendment to the statement of claim was sought and obtained in accordance with the Federal Court Rules [C.R.C., c. 663]. The Trial Judge issued the declaration on the basis of the wording found in these submissions. Paragraph 1 of the declaration reads [at page 75]:
1. the plaintiff as a Mohawk of Akwesasne resident in Canada has an existing aboriginal right which is constitutionally protected by ss. 35 and 52 of the Constitution Act, 1982 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. [Emphasis added.]
In effect, the Trial Judge inadvertently transformed the Aboriginal right to be exempt from customs duties claimed by the respondent into an international mobility right, that is to say a right to travel freely across the Canada-United States border, back and forth, which would also include, amongst other undefined rights, the right to be exempted from the payment of customs duties.
The international mobility right granted to the respondent is not notionally of the same nature and magnitude as the right he had originally claimed. It is much broader in scope as it may relate to the existence and exercise of litigious personal, economic and commercial mobility rights such as the right to reside and benefit from the other implied rights associated with the notion of residence, the right to own a passport and the right to work or pursue the gaining of a livelihood.2 The legislative ramifications of such rights are not limited to the Customs Act. They extend to the Citizenship Act, [R.S.C., 1985, c. C-29] the Immigration Act [R.S.C., 1985, c. I-2], the Extradition Act [R.S.C., 1985, c. E-23] and the various provincial laws regulating the right to reside in a province and gain a livelihood. Yet, none of these issues were addressed by the parties and the Trial Judge as the debate focussed on customs duties exemptions and the Customs Act.
The respondent claims his international mobility right as a citizen of the Mohawk nation. I would be inclined to agree with counsel for the appellant that an aboriginal right to enter a sovereign state that is not based on citizenship of that state cannot be reconciled with that state's right to self-preservation by effecting an appropriate control of its borders. As early as 1892, the Supreme Court of the United States asserted the link between sovereignty and the control of a state's border:
It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.3
I shall, therefore, examine the Aboriginal right claimed as the right to be exempted from the payment of customs duties when entering Canada from the United States. In this respect, the declaration issued by the Trial Judge fails to determine the geographical scope of this Aboriginal right. As it stands, the respondent can cross the Canadian border in British Columbia and claim customs duties exemptions for goods bought in California. Yet, the evidence adduced before the Trial Judge, whether it is in the form of oral history, expert or documentary evidence of past practices customs and traditions, does not support the existence nor warrant the granting of an Aboriginal right free of clear specific geographical limitations.
Indeed, when pressed on this issue by the Court, counsel for the respondent responsibly admitted that evidence of the Mohawks' travelling and trading prior to and during their contacts with the Europeans involved crossing between what is now the State of New York and the provinces of Quebec and Ontario. The historical evidence reveals a Montréal-Albany (New York) travelling route to and from the Mohawk village in the Mohawk valley located in the State of New York, northwest of present-day Albany, stretching to the upper St-Lawrence valley and including, by 1747 at the earliest, the actual site of the reserve of Akwesasne. Such site is unique in that the reserve is located partly in Quebec, Ontario and the State of New York and members of the Mohawk community living on the reserve regularly have to cross the U.S.-Canada boundary to visit each other.
According to the teachings of the Supreme Court of Canada with respect to the proper exercise of sovereignty by the Canadian government and the appropriate interpretation of existing Aboriginal rights (see R. v. Jacques, [1996] 3 S.C.R. 312, at page 322; R. v. Sparrow, [1990] 1 S.C.R. 1075, at page 1093; and R. v. Van der Peet, [1996] 2 S.C.R. 507, at page 539), the Canadian State has a legitimate and pressing interest in effectively protecting its borders, existing Aboriginal rights have to be "affirmed in a contemporary form rather than in their primeval simplicity and vigour" and these rights, when recognized and protected by section 35 of the Constitution Act, 1982 , must be reconciled with the sovereignty of the Crown. In addition, as Lamer C.J. stated in R. v. Adams, [1996] 3 S.C.R. 101, at page 119:
Even where an aboriginal right exists on a tract of land to which the aboriginal people in question do not have title, that right may well be site specific, with the result that it can be exercised only upon that specific tract of land . . . . A site-specific hunting or fishing right does not, simply because it is independent of aboriginal title to the land on which it took place, become an abstract fishing or hunting right exercisable anywhere; it continues to be a right to hunt or fish on the tract of land in question.
Pursuant to these principles and in view of the evidence before the Trial Judge that, in the present case, the alleged practice, for the Mohawk residents of Akwesasne, of bringing goods into Canada from the United States, without the usual payment of customs duties, was site-specific to the State of New York and the reserve of Akwesasne, it appears to me that the modern acknowledgement and recognizance of the respondent's Aboriginal right require first that it be exercised by his reporting at the Cornwall customs office and, second, that it be claimed only in relation to goods bought in the State of New York. This requirement provides a reasonable measure of conciliation for a modern exercise of both the State right to sovereignty and the respondent's Aboriginal right to be exempted from the general obligation to pay customs duties.
Furthermore, in my view, the evidence does not support the Trial Judge's conclusion at page 72 of his decision that the respondent's Aboriginal right entitles him to bring goods from the United States to engage in non-commercial trading with all the members of First Nations. Again, and counsel has admitted as much at the hearing, trading would have historically been limited geographically to members of the First Nations in Quebec, Ontario and the State of New York. Therefore, assuming that the Aboriginal right extends to non-commercial trading, the exercise of such right would, at best, have to be further circumscribed and limited accordingly to members of First Nations living in these two provinces. However, I believe that, in this respect as well as in respect of the definition of the goods that could be imported free of customs duties, the Trial Judge overstated the scope of the Aboriginal right in issue.
In his decision at page 71, after having referred to the respondent's assertion that the wording of the Jay Treaty is indicative of the content of the Aboriginal right claimed in this case, he concluded that such wording "reinforces the characterization of the aboriginal right as one that is exercised on a noncommercial scale". Then, he proceeded to find that the goods described in Article III of the Treaty are goods for "personal and community use", and further concluded, at page 72, that the wording of the Treaty supports the characterization of the right as a right to trade these goods on a non-commercial scale with other First Nations. It need be repeated that the respondent is, in fact, claiming a right to an exemption whose content is the same whether it finds its source in the Mohawks' practices and traditions or the terms of the Jay Treaty which is said to embody such practices and traditions.
Article III of the Treaty reads in part:
It is agreed that it shall at all Times be free to His Majesty's Subjects, and to the Citizens of the United States, and also to the Indians dwelling on either side of the said Boundary Line freely to pass and repass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America (the Country within the Limits of the Hudson's Bay Company only excepted) and to navigate all the Lakes, Rivers, and waters thereof, and freely to carry on trade and commerce with each other.
All Goods and Merchandize whose Importation into His Majesty's said Territories in America shall not be entirely prohibited, may freely, for the purposes of commerce, be carried into the same in the manner aforesaid, by the Citizens of the United States, and such Goods and Merchandize shall be subject to no higher or other Duties than would be payable by His Majesty's Subjects on the Importation of the same from Europe into the said Territories. And in like manner, all Goods and Merchandize whose importation into the United States shall not be wholly prohibited, may freely, for the purposes of Commerce, be carried into the same, in the manner aforesaid, by His Majesty's Subjects, and such Goods and Merchandize shall be subject to no higher or other Duties than would be payable by the Citizens of the United States on the Importation of the same in American Vessels into the Atlantic Ports of the said States. And all Goods not prohibited to be exported from the said Territories respectively, may in like manner be carried out of the same by the Two Parties respectively, paying Duty as aforesaid.
No Duty of Entry shall ever be levied by either Party on Peltries brought by Land, or Inland Navigation into the said Territories respectively, nor shall the Indians passing or repassing with their own proper Goods and Effects of whatever nature, pay for the same any Impost or Duty whatever. But Goods in Bales, or other large Packages unusual among Indians shall not be considered Goods belonging bona fide to Indians.4
The first of these three paragraphs merely states that all the belligerents in the war, i.e., the British subjects, the citizens of the United States as well as the Indians who had fought on either side of the Boundary Line, would be free to use the land routes, inland waters, rivers and lakes on both sides of the border and to resume among themselves the trade and commerce that had been in all likelihood interrupted by the war. The signatories to the Treaty undertook to allow for the common use of land and water routes on either side of the border. It is worth noting that the freedom hereby given is not specific to the Indians. It is granted to everyone and, therefore, of little assistance in establishing the existence and defining the content of the Aboriginal right to customs duties exemptions claimed by the respondent.
In addition, nothing in this paragraph, especially when read in context with the second and third paragraphs, evidences an intent on the part of the parties to the Treaty to exempt from the payment of customs duties the trade and commerce that would be resumed between the two states. On the contrary, the right given to everyone is to freely carry on trade and commerce with each other, not to carry on free trade with each other (emphasis added). To put it in another way, the purpose of Article III of the Treaty, after a disruptive period of hatred and enmity engendered by war, was to guarantee freedom of trade to everyone, not free trade to everyone.
Indeed, the second paragraph clearly establishes, as a rule, an obligation to pay customs duties on all goods whose importation is not prohibited. The third paragraph provides a specific exemption of duties to everyone on Peltries only and a limited exemption to Indians on their own proper goods and effects.
The limited exception to the payment of customs duties given to Indians travelling with their own proper goods and effects, in my view, refers to goods for their personal use as well as goods belonging to their own community for collective or common use by the members of that community. It does not grant them a right to import, for trading purposes on a non-commercial scale, other goods duty-free. I am comforted in this view by the following limitation to the exception found in the last sentence of the paragraph:
But Goods in Bales, or other large Packages unusual among Indians shall not be considered Goods belonging bona fide to Indians.
This limitation indicates that goods transported in large quantities or quantities larger than what usually corresponds to personal and community belongings and effects cannot be reasonably considered as "own proper goods or effects" exempt from taxation. They are considered to be goods for trade and, therefore, subject to customs duties.
To sum up on the scope and content of the respondent's Aboriginal right, I am of the view that the Aboriginal right of the respondent is the right, when crossing the international border at Cornwall Island, to bring with himself in Canada, for personal use or consumption, or for collective use or consumption by the members of the community of Akwesasne, goods bought in the State of New York without having to pay any duties or taxes to the Canadian government or authority. Consequently, paragraph 1 of the declaration issued by the Trial Judge should be amended accordingly.
Whether the Aboriginal Right has been Extinguished prior to 1982 by the Customs Act
In his submissions on appeal, the Minister pressed the argument that the Aboriginal right had been extinguished by the Customs Act provisions which he says impose a blanket obligation on all persons to report at customs when entering Canada all goods sought to be imported.
In my view it is not necessary to engage in a detailed assessment of the appellant's argument. I agree with the Trial Judge's conclusion that the appellant has not satisfied the onus of demonstrating that the Customs Act exhibits the "clear and plain intention" necessary to extinguish the Aboriginal right.
In addition to the reasons provided by the Trial Judge, I find support for my view in that the Customs Act provides for exemptions from duty by regulation and from the fact that its application to the Mohawks of Akwesasne during the late nineteenth and twentieth century was sporadic and inconsistent.
The appellant has relied solely on the reporting requirements of the Customs Act, 1985 and its predecessors to argue that the Aboriginal right has been extinguished. With the adoption of section 35 of the Constitution Act, 1982, it is clear that if the right was extinguished it would have had to be done so before 1982. Thus the current Act is not relevant to the question of extinguishment. Rather, the appellant is left with relying on the Customs Act (R.S.C. 1970, c. C-40) and its predecessors. The appellant relies on sections 9 and 18 of the 1970 Act which the appellant emphasizes have been consistently in force in Canada since 1906. The sections state:
9. All goods imported into Canada, whether by sea, land, coastwise, or by inland navigation, whether dutiable or not, shall be brought in at a port of entry where a custom-house is lawfully established.
. . .
18. Every person in charge of a vehicle arriving in Canada, other than a railway carriage, and every person arriving in Canada on foot or otherwise, shall
(a) come to the custom-house nearest to the point at which he arrived in Canada, or to the station of the officer nearest to such point if that station is nearer thereto than a custom-house;
(b) before unloading or in any manner disposing thereof, make a report in writing to the collector or proper officer at such custom-house or station of all goods in his charge or custody or in the vehicle and of the fittings, furnishings and appurtenances of the vehicle and any animals drawing it and their harness and tackle, and of the quantities and values of such goods, fittings, furnishings, appurtenances, harness and tackle; and
(c) then and there truly answer all such questions respecting the articles mentioned in paragraph (b) as the collector or proper officer requires of him and make due entry thereof as required by law.
It is immediately seen that the sections relied on by the appellant do not address the question of duty and therefore cannot extinguish the Aboriginal right to bring in personal and community goods duty free. While the appellant did not raise the provisions which relate specifically to duty, an analysis indicates that even these provisions do not evince a clear and plain intention to extinguish the right. Subsection 22(1) of the Customs Act, 1970 is the governing provision for the payment of duty. It states:
22. (1) Unless the goods are to be warehoused in the manner provided by this Act, the importer shall, at the time of entry,
(a) pay or cause to be so paid, all duties upon all goods entered inwards;
. . .
and the collector or other proper officer shall, immediately thereupon, grant his warrant for the unlading [sic] of such goods, and grant a permit for the conveyance of such goods further into Canada, if so required by the importer.
Subsection 22(1) imposes the general rule that duty must be paid on all goods. However subsection 22(3) allows the government to exempt certain goods from duties through the enactment of regulations. It states:
22. . . .
(3) The Governor General in Council may make regulations prescribing
(a) the terms and conditions upon which goods may be entered into Canada free of any requirement that the importer shall, at the time of entry, pay or cause to be so paid all duties on the goods so entered inwards; . . . .
The fact that the Governor in Council may regulate the application of duties in the Customs Act is inconsistent with the appellant's assertion that the Act is an absolute bar to duty-free entry and supports the Trial Judge's view that it is of a more regulatory nature, akin to the legislation found in R. v. Gladstone, [1996] 2 S.C.R. 723 and R. v. Sparrow, [1990] 1 S.C.R. 1075. I note that the ability to regulate the application of duties is not merely a passing feature of the legislation but an integral part of the Act and has been retained in the current Act.5
With regard to the application of the Customs Act, the evidence reveals that there was no clear intention on the part of people charged with enforcing the Act to extinguish the right. Indeed for extensive periods of time in the period from 1900 to the 1950's, Aboriginals were not assessed duty on their personal goods. In allowing this practice, local customs officials were not acting alone, but were following the instructions of high ranking officials. The evidence demonstrates that different levels of officials condoned and encouraged such treatment of the Aboriginals with respect to the paying of duties. As late as 1951, the Deputy Minister of Justice believed that Aboriginals had the right to bring in personal goods duty free. This is evident from a letter written by the Deputy Minister of Citizenship to the Deputy Minister of Customs & Excise in which the Deputy Minister of Justice is quoted as saying:
With reference to the importation of goods into Canada from the United States free of duty, I am of the opinion that it will depend on the particular facts of each case as it arises. In view of Article III, . . . Indians passing or repassing with their own proper goods and effects of whatever nature . . . need pay no duty." Consequently, it will depend in each instance whether the article in question is the Indian's own proper goods and effects. When the goods are in bales . . . or other large packages, unusual among Indians . . . they would be liable for duty.
Finally, I note that an analogy can be drawn between the preferential treatment given to Aboriginals at the border and the government behaviour cited in Gladstone, supra, at page 754, where the fact that the government had given preference to Aboriginal commercial fishing by providing greatly reduced licensing fees and encouraging Aboriginal participation in the fisheries was support for the finding that the Crown had not intended to extinguish the Aboriginal right to fish.
I would not want to conclude my analysis of the Trial Judge's decision without underlining the substantial effort required from him in reviewing the voluminous, and often conflicting, evidence adduced before him. Our intervention should not obscure the fact that his decision contains numerous factual and legal findings that we endorse.
For these reasons, the cross-appeal will be dismissed with costs. The appeal will be allowed, but success being divided, there will be no costs. There will also be no cost for or against the intervenor. The first paragraph of the declaration issued by the Trial Judge will be replaced by the following:
1. the plaintiff as a Mohawk of Akwesasne resident in Canada has an existing aboriginal right which is constitutionally protected by sections 35 and 52 of the Constitution Act, 1982, when crossing the international border at Cornwall Island, to bring with himself in Canada, for personal use or consumption, or for collective use or consumption by the members of the community of Akwesasne, goods bought in the State of New York without having to pay any duty or taxes to the Canadian government or authority.
The following are the reasons for judgment rendered in English by
Sexton J.A.: I have read the reasons of my learned colleague and I agree with his disposition of the cross-appeal. Regarding the appeal, while I adopt his reasons in the other issues in this case, I find it necessary to add these remarks as I have concluded that the Trial Judge did not err in finding that the respondent's Aboriginal right includes the right to bring in goods that are intended for non-commercial scale trade (right to duty-free trade) with other First Nation communities. As is made clear below, I find that the right is limited geographically to goods intended for trade with other First Nation communities in Quebec or Ontario.
In this regard I differ in two aspects from my learned colleague. First, I do not find that the Trial Judge committed an error in his findings of fact that mandates the intervention of this Court. Second, I do not believe that the interpretation of the Jay Treaty is relevant to determining the scope of the respondent's Aboriginal right.
It is clear that an appellate court should not intervene in the findings of fact of the Jrial Judge unless faced with a "palpable and overriding error". In this case, I cannot agree that the evidence does not support the finding that the Mohawks of Akwesasne engaged in trade across what is now the Canada-United States border in pre-contact times. Furthermore, I believe it is important to emphasize that the finding that the Aboriginal right includes the right to duty-free trade is not dependent on his conclusion that Article III of the Jay Treaty grants the identical right. Consequently, in my view, the Trial Judge did not commit a palpable or overriding error in making his finding that would warrant the intervention of this Court.
The Trial Judge's conclusion on the issue of duty-free trade is found at page 44 of his reasons, where he states:
I am satisfied that the Mohawks travelled across the boundary from their homeland in the United States into Canadian territory for trade related purposes prior to the arrival of the Europeans. The Mohawks crossed the boundary with their goods for personal and community use without having to pay duty or taxes on those goods. Whatever goods they obtained either by raiding or by hunting and fishing could be freely brought back across the border. There is little direct evidence that the Mohawks, prior to the arrival of the Europeans, brought goods from their homeland and traded with other First Nations on the Canadian side of the boundary, however, I am satisfied that Mohawk society is distinctive, that trade was an integral part of Mohawk tradition and that the Mohawks travelled freely across the border to expand trading territory and to obtain goods for the purposes of trade . . . . I find that the plaintiff and the Mohawks of Akwesasne have established an aboriginal right to pass and repass freely what is now the Canada-United States boundary with goods for personal and community use and for trade with other First Nations.
This passage illustrates that the Trial Judge properly considered the totality of the evidence of pre-contact trade before coming to his conclusion. Despite his finding that there was little direct evidence, he found, after applying the evidentiary principles established by the Supreme Court for Aboriginal cases, that the evidence supported the right to duty-free trade. In R. v. Van der Peet, [1996] 2 S.C.R. 507 and Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, the Supreme Court recognized that it would be exceedingly difficult to produce conclusive evidence from pre-contact times of traditional practices of the community. Thus, the Trial Judge was entitled to rely on post-contact evidence that was directed at demonstrating that the Mohawks engaged in the pre-contact practice of trade across what is now the Canada-United States border.
In my view, the evidence relied on by the Trial Judge is sufficient to ground his finding of pre-contact trade. It should be emphasized that at trial, the issue contested between the expert witnesses was the geographical extent of the trading (whether trading was North-South) rather than the existence of trading itself. The fact that trading was an important part of the Iroquois Nation is well documented. I note in particular, the Trial Judge's reliance on the early entry in the diary of Dutch explorer Dr. van den Bogaert in 1634 published in Harmen Meyndertsz van den Bogaert, A Journey into Mohawk and Oneida Country 1634-1635, (Syracuse, New York: Syracuse University Press, 1988) which describes the trading of dried fish and tobacco by a number of Iroquois women. The significance of this type of early evidence has already been recognized by the Supreme Court of Canada (see R. v. Gladstone, [1996] 2 S.C.R. 723, at page 747). Justice McKeown also noted that the 1645 Treaty which opened trade between the French, Iroquois and other First Nations was further evidence of the importance of trade to the Iroquois.
In my view, the Trial Judge made a full appraisal of the submissions of both parties on the existence of North-South trade before reaching his conclusion. The respondent's experts testified that the geographic position of the Mohawks enabled them to gain easy access to the St. Lawrence valley and the lower Great Lakes region for purposes of trade and diplomacy. This view was supported by the evidence of experts from both sides who testified that the Iroquois frequently travelled north into what is now Canada to engage in commercially motivated warfare. In the respondent's expert's view this was to further their control over trade. The Trial Judge accepted this position and specifically rejected the view of the appellant's expert, Dr. von Gernet, on the basis that he concentrated "too much on the raiding activities" of the Mohawks and because it was inconsistent with archaeological evidence from Daniel Richter's article entitled "Ordeal of the Longhouse: The Five Nations in Early American History" in Beyond the Covenant Chain: the Iroquois and their Neighbors in Indian North America 1600-1800, D. K. Richter and J. H. Merrel eds. (Syracuse N.Y.: Syracuse University Press, 1987).
This article, which was submitted by the appellant's expert witness, demonstrated that the Iroquois living in what is now the State of New York traded in copper which originated from the north shore of Lake Superior. Justice McKeown recognized that this was clear archaeological evidence of North-South trade across what is now the Canada-United States border. He concluded that the Richter article confirmed that trade was of vital importance to the Iroquois and that it was evidence of long distance trade.
In my view, the evidence of pre-contact trade supported the finding of the Trial Judge that the respondent's Aboriginal right included the right to duty-free trade with other First Nation Communities on a non-commercial scale. I turn now to the second issue: the significance of the Trial Judge's interpretation of the Jay Treaty.
With respect, I cannot agree that the Trial Judge improperly relied on his interpretation of the Jay Treaty to support his finding that the Aboriginal right included the right to duty-free trade. As seen above, the Jay Treaty is not addressed in his initial analysis of the Aboriginal right. After finding that the respondent's Aboriginal right included the right to duty-free trade, the Trial Judge turned his mind to the issue of treaty rights. It is not until after this discussion, at page 71, that he concluded that the wording of the Jay Treaty reinforced his characterization of the Aboriginal right. It should be noted that these comments were made in obiter while addressing the relationship between Aboriginal rights and treaty rights. As has been illustrated above, at this point in his judgment the Trial Judge has already recognized the existence of the Aboriginal right to duty-free trade.
In my view, the Jay Treaty could not possibly be employed to limit the scope of the Aboriginal right. As the Trial Judge rightly points out at page 71, the Jay Treaty "cannot serve as a limitation on a constitutionally protected Aboriginal right". Once it has been determined that the test for the existence of an aboriginal right established in Van der Peet , supra, has been satisfied, this right is protected by the Constitution unless the right has been extinguished. In these proceedings, the appellant has not argued that the Jay Treaty or its implementing legislation extinguished the Aboriginal right. In any event, it is clear that this argument would have failed: the fact that Aboriginals may have been granted a more limited form of the Aboriginal right in an international treaty cannot serve to restrict the right which is protected by section 35 of the Constitution Act, 1982.
In sum, I have concluded that the Trial Judge did not err in finding that the respondent's Aboriginal right includes the right to trade on a non-commercial scale with other First Nations. It is my opinion that the Trial Judge made no error in relying on the Jay Treaty as support for the Aboriginal right to duty-free trade. However, even if the Jay Treaty did not include the right to trade duty-free, this error is immaterial to the content of the Aboriginal right that he has found is supported by the breadth of evidence in this case. The sole remaining issue to be considered is the geographical scope of this right.
The Trial Judge did not impose any geographical restrictions on the Aboriginal right. It is clear that his declaration must be clarified in order to address the potentially broad ramifications of his order which are discussed by my colleague at paragraph 19 of his reasons. In my view, the modern form of the Aboriginal right is the right to purchase goods anywhere in the State of New York and to bring these goods duty-free across what is now the New York-Quebec or New York-Ontario border. As my colleague has pointed out, counsel admitted at the hearing of this case that trading was historically limited to members of the First Nations in Quebec, Ontario and the State of New York. Consequently, the right is further restricted to goods that are intended for personal or community use or for non-commercial trade with other First Nation communities living in Ontario or Quebec.
Finally, I agree with my colleague on his disposition of the costs in the case. In the result, the appeal should be allowed in part and paragraph 1 of the judgment below should be varied to read:
1. the plaintiff as a Mohawk of Akwesasne resident in Canada has an existing aboriginal right which is constitutionally protected by sections 35 and 52 of the Constitution Act, 1982, when crossing the international border from New York to Ontario or Quebec, to bring with him to Canada, for personal use or consumption, or for collective use or consumption by the members of the community of Akwesasne, or for non-commercial scale trade with First Nation communities in Ontario or Quebec, goods bought in the State of New York without having to pay any duty or taxes to the government of Canada.
Isaac C.J.: I agree.
1 Lord Dorchester's (The Governor-in-Chief of Quebec) speech on August 15, 1791 to the Chiefs and Warriors, Deputed by the Confederated Indian Nations of the Ottawas, Chippewas, Potawatamies, Hurons, Shawanese, Delawares, Turturs and the Six Nations, the Meeting at Fort Erie on August 28, 1795 at which the British were represented by Lieutenant Governor John Graves Simcoe of Upper Canada and the Six Nations by Joseph Brant, the Meeting of August 1796 at Chenail Écarté, near Lake St Claire, between the Deputy Superintendent General of Indian Affairs and Chiefs of the Chippewas and the Ottawas, the Meeting of April 24, 1815 at Burlington Heights between the Deputy Superintendent General of Indian Affairs and various Chiefs and Warriors including a Huron Chief and an Onondaga War Chief from the Grand River territory, and finally the Meeting of August/September 1815 at Niagara where the Deputy Superintendent General reiterated to members of the First Nations what he had said at the Burlington Height Meeting earlier in April.
2 See for example Watt v. Liebelt and Canada (Minister of Citizenship and Immigration) (1994), 82 F.T.R. 57 (F.C.T.D.) on appeal before this Court where an American citizen, member of the Arrow Lake tribe, is claiming, as included in his Aboriginal mobility right, the right to remain in Canada. See also by analogy the discussion as to the scope and nature of mobility rights under the Charter in G.-A. Beaudoin and E. Mendes in The Canadian Charter of Rights and Freedoms, 3rd ed., Toronto: Carswell, 1996, at pp. 389-413; H. Brun and G. Tremblay, Droit constitutionnel, 3rd ed., Les Éditions Yvon Blais Inc., Cowansville, 1997, at pp. 174-185.
3 Nishimura Ekiu v. United States, 142 U.S. 651 (1892), at p. 659. See also Attorney-General for Canada v. Cain, [1906] A.C. 542 (P.C.), at p. 546 per Lord Atkinson; R. v. Jacques, [1996] 3 S.C.R. 312.
4 Treaty of Amity, Commerce and Navigation, 12 Bevans 13 (1794) [Jay Treaty (1794)].
5 See s. 32(6) [as am. by S.C. 1992, c. 28, s. 5] of the Customs Act 1985.