TODAY’S DOCKET
Quebec court recognizes Aboriginal right to trade in tobacco
BC Premier has an unfettered right to call an election
Ohio guarantees the right to abortion
ABORIGINAL LAW
Quebec court recognizes broad Aboriginal right to pursue economic development
A jury found two men guilty of crimes because they brought tobacco into Canada without paying tax. We’re not talking about a pack of cigarettes — they brought in 23 semi-trucks filled with bulk tobacco. As of last week, though, the two men are off the hook.
The Superior Court of Quebec said the law imposing the tobacco tax is unconstitutional. By imposing a tax on tobacco, the government restricted the rights of Indigenous peoples to freely pursue economic development. That was done without proper consultation, which means the tax doesn’t apply to the two men and their criminal convictions are stayed.
The Court’s decision is a landmark ruling that’s likely to be appealed. To get to the result, the Court chose not to follow the Supreme Court of Canada and created a broad new approach to recognizing Aboriginal rights.
Covenant Chain: The British and the Haudenosaunee people held a series of meetings starting in the 17th century. Those meetings followed deep rooted Haudenosaunee traditions. The parties exchanged gifts and formed agreements. Each subsequent meeting “polished” the chain. The Covenant Chain is a metaphor for this ongoing diplomatic relationship.
But it’s not just a metaphor — according to the Court, the Covenant Chain is a binding treaty that was never extinguished. And, at a minimum, the government needs to comply with that treaty by consulting with the Haudenosaunee on issues of trade and military conflict.
Based on the Covenant Chain, tobacco tax was an issue worthy of discussion.
Economic rights: The Covenant Chain wasn’t the only reason for striking down the tax. The Court also said the Mohawk of Kahnawà:ke, who are part of the Haudenosaunee confederacy, have a constitutionally-protected right to pursue economic development as they see fit. Given the current importance of tobacco trade to their economy, the government can’t just unilaterally impose a tax.
Big picture: Before this decision, the law only recognized Aboriginal rights that existed before Europeans came to Canada. The Court said that’s no longer appropriate and broke new ground by protecting the right to trade in tobacco. According to the Court:
[T]he “magic moment” of European contact is no longer relevant.
If this new approach stands, it marks a major change for the treatment of Aboriginal rights in Canadian law.
Decision report card:
◻️◻️◻️😃◻️ Factual interest
◻️◻️◻️◻️🔥 Legal interest
◻️◻️◻️◻️🔗 Strength of the chain
HEARSAY ROUNDUP
Canadiana
🗳 The British Columbia Court of Appeal held the province’s Premier and Lieutenant Governor have a completely unfettered right to call an election. The New Brunswick Court of Appeal reached a different conclusion last year, holding that the sitting NB government needs to act honourably and can’t call an election just to gain an advantage. Democracy Watch, the group that started the court proceedings, hoped the BC Court of Appeal would go even further. Democracy Watch argued the government needs to stick to election dates on a fixed schedule, but — no such luck.
🕵️ Toronto Metropolitan University is conducting an external review of a letter signed by TMU law students. The letter referred to the October 7 attack by Hamas against Isreal as a laudable act of resistance. Former Chief Justice of Nova Scotia J. Michael MacDonald is conducting the review as an independent expert. He’ll determine whether the students involved breached their code of conduct and — if so — what should happen next.
Beyond the border
📜 Ohio’s constitution will guarantee abortion rights. In a state election yesterday, most voters approved an amendment that enshrines the right to reproductive medical treatment, including abortion.
⌛️ The High Court of Australia said the government can’t hold people in immigration detention indefinitely, overturning a 2004 decision on the same issue. The case before the Court involved a man that no country would accept because of his criminal record for child sex offences. Without a state to accept him, he faced the prospect of a permanent immigration detention.
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