[NDLE : L’annexe n’est pas reproduite en l'espèce, veuillez télécharger le format Word ou PDF accessibles au début de cette page.]

SUMMARY[2]

The Fresh as amended consolidated constitutional pleading is allowed. Section 42(1) of the Excise Act, 2001, unjustifiably infringes the Aboriginal right and the treaty right of the Applicants as guaranteed by sec. 35(1) of the Constitution Act, 1982. It is of no force and no effect against them. Consequently, the criminal procedures are permanently stayed.

I- INTRODUCTION

On May 9th, 2019, at the end of a two-month-long trial, a jury rendered a verdict, finding Derek White guilty of committing an indictable offense for the benefit of a criminal organization, conspiring to defraud the Government of Canada, and perpetrating fraud against the Government of Canada. He was acquitted of conspiring to defraud and committing fraud against the Government of Québec. The maximum prison sentence for these infractions is fourteen years.

Hunter Mountour was found guilty of the only offence he was charged with, to have participated in activities of a criminal organization. The maximum prison sentence for this infraction is five years.

All these infractions are connected to the scheme employed by the Applicants to bring in Canada substantial quantities of tobacco from the United States while evading the taxes mandated by the Excise Act, 2001.

Before the jury trial, they filed a Notice of constitutional questions. The present judgment is about the fourth and final version of this motion, filed on November 21, 2021, titled Fresh as amended consolidated constitutional pleading (hereafter the Notice).

They alleged that ten treaties (hereafter the Treaties) negotiated between 1664 and 1760, along with the Covenant Chain, an overarching oral meta-treaty, guarantee them the right to tobacco trade and to discuss any related issue with the Crown. Additionally, they asserted an Aboriginal right to tobacco trade. They are thereby seeking a permanent stay of proceedings arguing that their Aboriginal and treaty rights guaranteed by s. 35(1) of the Constitution Act, 1982 (hereafter s. 35(1)) have been unjustifiably infringed.

The judgment is divided in six sections: the Indigenous perspective, the treaty right, the Aboriginal right, the infringement, the justification, and the remedy.

The Summary will follow the same structure and the facts mentioned herein come from the evidence that the Court has found conclusive.

II- THE INDIGENOUS PERSPECTIVE

Central to the context put forward in the Notice is the relationship that existed between the Mohawk and the British nations between 1664 and 1760.

The Mohawk Nation Council of Chiefs (hereafter the MNCC) was authorized to intervene to present evidence as to the perspective of the Mohawk nation in order to assist the Court in its analysis of the evidence. It was done through the testimonies of Dr. Amber Adams, Ph.D., and of Chief Curtis Nelson.

Despite the limits imposed by the Court on the MNCC’s intervention, Dr. Adams and Chief Nelson provided an impressive amount of complex, relevant, and useful evidence on the perspective of the Mohawk nation and the Haudenosaunee. The Haudenosaunee family (the Indigenous name for Iroquois) is composed of six nations: the Mohawk, the Oneida, the Onondaga, the Cayuga, the Seneca and the Tuscarora. They share a common culture relevant to the present judgment.

This evidence gave the Court a better understanding of the Haudenosaunee culture, history, and law. Of course, it is neither enough evidence nor enough time to develop a profound understanding of the culture of any nation.

Before the auditions, as the vast majority of the non-Indigenous Canadian population, the undersigned was ignorant of the Haudenosaunee and Mohawk cultures. It was a privilege to have it explained by two members of the Mohawk nation who came to the Court with their own personal experience, understanding and cultural knowledge of their Nation.  It is important, for the parties, for the public and for the higher courts that may have to examine this judgment, to know what the Court understood and retained of this evidence and how it was used. That is why the Court has devoted a full section of the present judgment to the evidence presented by the MNCC.

Respect and attention for such evidence is part of the reconciliation process, a goal and an obligation for the courts. 

This judgment and its conclusions cannot be understood without first reading the part on the Indigenous perspective. If it was a great challenge to condense and present this evidence in 65 pages, it would be impossible to do this task in the form of a summary. This said, essentially, the Court has retained the following from the evidence on the Indigenous perspective.

The evidence of the Haudenosaunee perspective brought by Dr. Adams and Chief Nelson explained the traditional ways of the Haudenosaunee that have survived hundreds of years of colonisation and assimilation. This demonstrated how strong and vital culture is for this community and how rooted it is in the people of the Haudenosaunee nations. 

Language is the heart, the soul, the lungs and the voice of a culture. It is so much more than just words. That is what Dr. Adams brought to the Court, an understanding of how the Mohawk language shapes the perception of the world, the philosophy, the conduct and the behaviour of Haudenosaunee people.

She also brought an understanding of the close connection between that language and the narratives and how family relationships are central and shape any relationship in the Haudenosaunee culture. She also shed light on the importance and the meaning of the symbols and metaphors of the Haudenosaunee culture, most specifically, the ones of the Covenant Chain and of the ceremonies. Her testimony set the table for Chief Nelson’s participation in this case.

For his part, Chief Nelson brought his knowledge of the Haudenosaunee culture as a hereditary chief. He testified on numerous aspects of it, which, when put together, give a better understanding of the persistence of that culture over time, and of its continuity.

He gave life to the meta-narratives notably the Creation Story and The Great Law of Peace. From his testimony, the Court came to better grasp important aspects of the Haudenosaunee traditional ways that are key to the understanding of the treaty relationship with the British in the 17th and 18th centuries.

He explained how those traditions were the way of life of the Haudenosaunee at the arrival of the Europeans, and how they are still present in the Haudenosaunee communities. He showed us how, despite colonisation, the traditions have survived from generation to generation and how central they were and still are.

In the culture of the Haudenosaunee, there is a golden thread that runs through generations. It weaves together their desire, their efforts and their determination through all those years to live in peace.

For the Haudenosaunee, the need to have two sides for discussion in order to achieve peace is at the heart of the conflict resolution process. In a very real way, it is the equivalent of the audi alteram partem rule of the non-Indigenous justice system.

To implement this, they have structures and processes like the Condolence ceremonies and councils. These originated in the teachings of The Great Law of Peace, where conflicting issues are discussed at all levels with the objective of “coming to one mind”.

These processes, that preceded the arrival of the Europeans, animated their relationship with them in the 17th and 18th centuries. Today, the Haudenosaunee still use it, albeit sometimes in different ways.

This transmission, which secures and guarantees the existence and exercise of this culture and its traditional ways today, confirms the undeniable probative value of this evidence. It is essential and unassailably credible for the purpose of understanding the motivation, the intentions and the objectives of the Mohawk nation during the treaty relationship with the British.

For the Haudenosaunee, this is not only history. It is also the present.

III- THE TREATY RIGHTS

The arguments of the Applicants on their treaty rights can be divided into two different but related issues: the right to free trade as guaranteed by the Treaties and the nature and the role of the Covenant Chain.

 Position of the parties on the Treaties

The Applicants invoked ten Treaties. For them, these Treaties show that free trade, including the tobacco trade, was a central component of the relationship between the Haudenosaunee and the British. The Applicants considered that these treaties formed what is known as the “Covenant Chain”, a symbol of the alliance between the parties. In the words of the Applicants, the Covenant Chain is a series of treaties that were meant to record military and trade alliances (and, in some cases, neutrality pacts) between the British Crown and the Mohawk nation and other nations of the Iroquois Confederacy, especially in the context of the ongoing colonial rivalry between the French and British Crowns in the 17th and 18th centuries which ultimately culminated in the conquest of New France in 1760.

The Attorneys General submit that the parties to the Treaties could not have intended to include a treaty right to trade tobacco, as the Mohawks had no tradition of trading tobacco at the time of their conclusion. None of the Treaties can be read as allowing the Applicants to import large quantities of tobacco without reporting them at the border and paying the excise duties. None of them expressly address the trade of tobacco, or trade on a commercial scale. What is more, there is no provision excluding the Mohawk from any regulation of trade.

Where the Attorneys General recognize that certain Treaties refer to trade, they suggest that, given the historical context, this alludes to the trade of fur in exchange for the necessaries of life, and not for the accumulation of wealth.

Position of the parties on the Covenant Chain

The Applicants also plead that the Crown infringed the Honour of the Crown and the Covenant Chain relationship, because it failed to consult and negotiate in good faith with the Mohawks of Kahnawà:ke before legislating.

The Applicants have maintained throughout this proceeding that the protocols of the Covenant Chain require the Crown to consult and cooperate with the Mohawks of Kahnawà:ke in order to reach a negotiated resolution to the longstanding Crown-Mohawk dispute over the trading of tobacco.

For their part, the Attorneys General consider that the Covenant Chain is not a treaty, but more a symbol or a metaphor for the political and/or military alliance between Indigenous peoples and the British Crown in the 17th and 18th centuries.

The Attorneys General also provide an alternative argument that if the Covenant Chain is a treaty, it does not contain a right to a negotiated resolution of disputes outside courts.

As for the MNCC, it asked the Court to define the principles of the Covenant Chain in order to guide successful negotiations in the future.

The MNCC views the Covenant Chain as a relationship that has bound the Haudenosaunee and the Crown since 1677. It is the framework for the thinking and conduct of every treaty council from 1677 to the 1830s.

For the MNCC, the procedural right flowing from the Covenant Chain is not consultation, it is communication, listening and working together to resolve concerns. It is different from the common law right to be consulted. It is an obligation to actively work together to resolve a concern.

The Court will first examine the Applicants’ argument on the Covenant Chain because it is presented as a meta-treaty of peace and friendship, overarching the treaty relationship between the Haudenosaunee and the British since the late 17th century, and as containing a conflict-resolution procedure.

Preliminary issues

The Court ruled as followed on the preliminary issues.

The Crown in Right of Canada is bounded by the Treaties entered into at Albany between the British Crown and the Mohawks of Kahnawà:ke.

The Court will not rule on the issue of the criminal jurisdiction under the Treaty of 1664 that was introduced by the MNCC. This issue was not raised by the Applicants, and it is not one under which the MNCC was authorized to intervene. It is an important and very complex issue, one that should have the benefit of a full and complete hearing. In the context of this Notice, it was not the case, and the Court is thereby ill-equipped to address it.

The Court rejects the argument of tardiness raised by the Attorneys General on the issue of whether the Covenant Chain is a treaty that gives enforceable rights.

The Covenant Chain

Although the Attorneys General do not contest the existence of a relationship referred to as the Covenant Chain, they are strongly opposed to the argument that the Covenant Chain is a treaty.

The Court finds that the following elements are undisputed and supported by the evidence presented:

• The origin of the Covenant Chain can be traced back to the beginning of the relationship between the Haudenosaunee and the British in the 17th century.
• Throughout the core historical period discussed in this judgment, the nations involved in the Covenant Chain were independent, sovereign, and equal politically and militarily.
• Both parties were skilled in the art of diplomacy, engaging in negotiations with other nations on matters such as military alliances, neutrality, peace and trade.
• The metaphor of the Covenant Chain illustrates the relationship between the Haudenosaunee and the British, and it is represented by a vessel (British) and a mountain (Haudenosaunee) linked by a durable silver chain that symbolizes a lasting bond, requiring regular care and polishing to prevent tarnishing and potential breakage.
• This metaphor represents an alliance between the nations.
• The Covenant Chain originates with the Haudenosaunee and is deeply rooted in their law and diplomatic traditions, characterized by the practice of conducting councils.
• Councils hold a central place in the political structure of the Haudenosaunee, utilized both within the Iroquois Confederacy and across various Haudenosaunee nations. This structure is deeply rooted in the Great Law of Peace and had been in existence long before the arrival of the first Europeans in North America.
• The Covenant Chain councils took place in Albany, NY and could be initiated by either one of the parties by sending a wampum belt as an invitation for the gathering.
• At council, wampum belts were exchanged, some of which served as a symbolic representation of the treaty concluded.
• The British followed that diplomatic structure in their relationship with the Haudenosaunee nations, including the Mohawks of Kahnawà:ke.
• The relationship between the Haudenosaunee and the British evolved through the Covenant Chain councils.
• The Covenant Chain diplomacy was conducted through councils that played a central role in maintaining the relationship. Regularly polishing the silver chain symbolized that any conflict or issue affecting the relationship should not be left unattended. Instead, the parties should address conflicts through discussions to find a mutually satisfying solution. 
• The council's procedure involved a Condolence ceremony at the opening, which could sometimes last a few days. This was followed by speeches to introduce a proposition and an exchange of gifts to support it. Then there was a suspension for reflection on the answer, after which speeches were given to present the answer to the proposition, accompanied by an exchange of gifts. The proposition procedure was repeated until an agreement was reached.
• Depending on the subject of discussion, a council may or may not lead to a treaty. In the present case, all the Treaties except the first one of 1664 are oral treaties.
• At councils, the Covenant Chain was frequently renewed, as were the treaties concluded before.
• The relationship between the Haudenosaunee and the British was governed by the Covenant Chain diplomacy well into the 19th century.
• The Covenant Chain eventually became part of the British diplomacy with other Indigenous nations, such as the Anishinaabe.

To decide if the Covenant Chain is a treaty protected by s. 35(1), the Court had examined the following issues: 

1-     What are the obligations of the Covenant Chain?

2-     Did the parties intended to create mutually binding obligations?

3-     Was it concluded with a certain measure of solemnity?

4-     Is the Covenant Chain extinct?

To these questions, the Court answered as follows: The Covenant Chain is an unextinct Treaty that creates mutually binding obligations by way of military and friendship alliances that includes a conflict-resolution procedure.

The Covenant Chain is a peace alliance

All European nations recognized the importance and the advantages of securing alliances with Indigenous nations in North America.  Over time, alliances were established with various Indigenous nations, with some enduring, while others failed to stand the test of time.

The nature of the peace alliance between the British and the Haudenosaunee varied over different periods. At times, they acted as allies, while at others, they took a neutral stance. Also, different Haudenosaunee nations had different alliances with the British.

The Covenant Chain is a friendship alliance

The evidence reveals that, while British written records refer to it as "friendship," the friendship alliance holds a deeper meaning for the Haudenosaunee, representing, in fact, a family alliance. The British were not merely seen as friends but were adopted and considered brothers. From the Haudenosaunee perspective, family relationships are meant to endure perpetually and are even stronger than mere friendship.

A friendship alliance, which creates a family tie, entails nurturing a relationship that benefits all parties across various spheres of activities. While a peace alliance primarily addresses the military aspects of a society, friendship or family pertain to its civil aspects.

This peace and friendship alliance is a fundamental cornerstone of the Covenant Chain, as well as of the relationship between the Haudenosaunee and the British.

The councils of the Covenant Chain: a conflict-resolution process

Within the context of the Covenant Chain, the pivotal element of the friendship alliance, or family, revolves around the utilization of councils as a conflict-resolution procedure.

Originating in The Great Law of Peace, councils held a significance beyond mere gatherings. Within Haudenosaunee culture, ceremonies like Edges of the Woods or Condolence ceremonies were essential components of councils, each serving specific functions. Councils followed a structured format that was adhered to by all participants to effectively achieve their objectives.

While councils adhered to the Haudenosaunee diplomatic protocol and the principles of The Great Law of Peace, they were conducted on British territory in Albany. The fact that councils took place in Albany means that both parties adjusted to each other's customs, thereby establishing a framework to govern their relationship.

The evidence demonstrated that issues relating to peace, military alliance, neutrality, trade practices, and criminal offenses were all discussed. The council proceedings were conducted orally, with each party making proposals and supporting them with gifts. Responses were provided, generally later, excuses were made and accepted, and agreements were reached orally. There were no official written records, written agreements, or written treaties during these meetings, yet this orality persisted for over a century.

In the metaphor of the Covenant Chain, the act of holding regular councils served as a means to polish and keep the chain clean and bright. The importance of maintaining the brightness of the chain through regular meetings was duly acknowledged by all parties.

This framework originated from the meta-narratives initially narrated centuries previously. For the Haudenosaunee, the foundation of a treaty relationship is rooted in the belief that the parties possess the knowledge and understanding required to foster a successful and effective relationship. Indeed, the Covenant Chain epitomizes this principle by employing council meetings as a means to resolve conflicts between the parties. The councils serve as a platform used by the parties for maintaining and strengthening their relationship, thereby upholding the spirit of the treaty.

From the evidence provided, it can be reasonably inferred that the British were not only aware, but also agreed, that holding councils was the designated process for resolving conflicts and governing their relationship with the Haudenosaunee. The historical records demonstrate instances where conflicts were successfully addressed through these council meetings, reinforcing the understanding and acceptance of this conflict-resolution mechanism by the British.

The entire relationship is predominantly unwritten. Given that, the fact that the conflict-resolution process lacks written documentation should not be interpreted as a sign of non-agreement by the British but, rather, as a state of affairs that is consistent with the general rule of oral transactions within this unique relationship.

Treaties can be either written or oral, and the lack of a written form does not invalidate the recognition of an agreement as a treaty.

The written records show that the parties relied on the council process for more than a century. By sending wampum belts as invitations to council meetings, they consistently utilized this mechanism to address conflictual issues. The longevity and consistency of the practice of holding councils to resolve disputes directly contradict the argument that the Covenant Chain lacked a conflict-resolution procedure. It is compelling evidence that the Covenant Chain did indeed include a conflict-resolution procedure through the vehicle of council meetings.

While acknowledging that colonization was indeed a primary objective of colonial powers, the Court is not convinced that agreeing to a conflict-resolution procedure within the Covenant Chain contradicts British colonial logic. Creating a conflict-resolution process might well have served the interests of the British in effectively managing relations with Indigenous nations, maintaining peace and securing their territorial interests. In this perspective, a conflict-resolution mechanism would be a pragmatic approach in pursuit of colonial objectives, as it allowed for the resolution of disputes without resorting to armed conflicts that might disrupt the British colonial efforts. Therefore, the presence of a conflict-resolution process within the Covenant Chain does not necessarily undermine or contradict British colonial logic, rather, it appears to be a practical means of achieving colonial goals more effectively.

In the present context, the Court considers the distinction between procedural and substantive rights as irrelevant. When parties enter into a treaty, they have the freedom to agree on any matter they deem necessary. If the parties have reached an agreement on a procedural aspect of their relationship, it becomes an integral part of the treaty. Consequently, if the parties have agreed on a conflict-resolution procedure and it is not respected such non-compliance would constitute a violation of the treaty. In such a case, both procedural and substantive aspects are equally enforceable and integral components of a treaty.

As a result, the Court concludes that the Covenant Chain is a peace and friendship alliance that includes a conflict-resolution procedure.

The intention of the parties to create mutually binding obligations

The Court concludes that the historic record of council meetings and the conduct of the parties demonstrate that both parties intended to enter into both a peace and a friendship alliance and to have their relationship governed and regulated through councils. 

The Crown argued that the only reason the British employed the rituals of the Covenant Chain was to obtain the collaboration of the Indigenous nations.  They submit that the protocols and rituals were understood by the British as necessary diplomatic protocols, but not as importing substantive or procedural rights or obligations. They argued that the process must be distinguished from the intention to create binding obligations and that s. 35(1) protects only the latter.

The inference to be drawn from this argument is that the British had no real intention to create mutually binding obligations with the Haudenosaunee through the Covenant Chain. They just pretended to do so in the pursuit of their colonialist agenda, which was certainly not an agenda common to both parties. It means that they hid their real intentions.

This interpretation raises doubts about the authenticity and sincerity of their words and actions.

The evidence demonstrates that the British consistently employed the language and the protocols of the Covenant Chain. They sent wampum belts to convoke the Haudenosaunee to councils and gave them at the conclusion of treaties, they actively participated to the Condolence ceremonies, before any proposition they addressed the Haudenosaunee as “Brethren”, they frequently spoke of renewing the Covenant Chain, they acknowledged the existence of the “ancient” Covenant Chain dating back to the time of their ancestors, and they emphasized the enduring friendship that has always existed between them and the Haudenosaunee nations.

This language used by the British was the language of Haudenosaunee councils, and it had been for generations. 

The many years of engaging in a relationship based on the principles of the Covenant Chain convince the Court that the British were well aware of the significance and meaning behind its words and rituals for the Haudenosaunee. They deliberately used this language because they understood its importance to the Haudenosaunee, and they intended for the Haudenosaunee to take these words seriously and to act upon them. By using them, they sought to establish a genuine and lasting bond with the Indigenous nations, fostering trust and cooperation within the framework of the Covenant Chain alliance.

On these words, the Haudenosaunee relied.

The historical records and the historical context clearly indicate that the words and actions of the British conveyed their intention to establish mutually binding obligations with the Haudenosaunee. These obligations encompassed respecting the alliances forged and committing to resolve any issues arising in the relationship through council meetings. The British demonstrated a genuine willingness to honor the Covenant Chain alliance and to engage in a collaborative process with the Haudenosaunee, reinforcing their commitment to maintaining a strong and enduring partnership based on trust and mutual respect. 

The argument presented by the Attorneys General suggests that the British words and conduct were insincere, misleading, and even dishonest for over a century. It evokes an enduring pattern of deception and insincerity in their dealings with Indigenous nations.

Such a suggestion should be rejected, because this would contravene the legal principle of the honour of the Crown.

The Crown is presumed to act, and to have acted, honorably in all its dealings with the Indigenous Nations, urbi et orbi, heri et hodie: here and everywhere, yesterday and today.  The principle of the Honour of the Crown applies to its dealings with Indigenous peoples and obliges the Crown to act with integrity, good faith, and fairness in its dealings with them. Dishonorable conduct and sharp dealing would go against this principle and would not align with the Crown's legal duty toward its Indigenous partners.

Dishonorable conduct in the past cannot be used to escape obligations in the present. One cannot legitimize the past in this manner. Applying the law to the proven facts means holding the Crown accountable for its actions, irrespective of the time period, and ensuring that legal obligations are met in the current context.

This argument questioning the honor and sincerity of the Crown's historical conduct goes against the goal of reconciliation, which is at the core of s. 35(1). Reconciliation aims to address past injustices, acknowledge historical wrongs, and work towards a more respectful and equitable relationship between the Crown and Indigenous people. Reconciliation requires the cessation of dishonorable conduct or distrust of the past. The honour of the Crown requires a generous and purposive interpretation in furtherance of the objective of reconciliation. By embracing the principles of the honour of the Crown and recognizing the importance of honorable conduct in the present, the path towards reconciliation becomes more achievable. Rejecting arguments that hinder reconciliation efforts is essential to achieving that goal.

The Attorneys General also argued that the British could not have intended the Covenant Chain to be a treaty because its form is contrary to their culture of written treaties.

As the Court has said, the absence of written treaties during that period indicates that the British accepted and embraced the Haudenosaunee diplomatic protocol, which included treaties that were not put into writing.

The evidence of the intention of the Haudenosaunee to engage in mutually binding obligations is also conclusive.

The evidence demonstrates that the Haudenosaunee adopted the British as a nation, and that the British actively and knowingly participated in these ceremonies. Such an adoption is not exceptional, since the Peacemaker in The Great Law of Peace proclaimed that the law is not exclusive to the Haudenosaunee but is open to anyone willing to embrace it. The Covenant Chain, of Haudenosaunee origins, reflects this inclusive approach.

Trade as an aspect of the Covenant Chain

Once the Court has concluded that the Covenant Chain is a peace and friendship alliance with a conflict-resolution procedure, the issues submitted to the Court require to determine if conflict about the regulation of tobacco trade should be submitted to council.

For the Applicants, trade is a central component of the Covenant Chain relationship. Indeed, from a Haudenosaunee and Mohawk perspective, “peace and trade were indivisible”. The Covenant Chain provides that the parties are in a relationship or alliance that is fundamentally about trade and peace. Therefore, they plead that trade was at the core of the Covenant Chain. The Treaties concluded between 1664 and 1760 were intended to create a permanent relationship of which trade was a central component.

Therefore, they argue that the Crown had a duty to discuss with the Mohawks of Kahnawà:ke when an issue relating to the free trade of tobacco was raised, a duty that it failed to respect.

The first argument of the Attorneys General is that there could be no obligation to consult under the Covenant Chain without first establishing the existence of a treaty right or Aboriginal right to trade tobacco.

Secondly, they argue that the Covenant Chain, being merely a metaphor for a political and military alliance between Indigenous peoples and the Crown, does not cover trade.

Moreover, the Treaties do not refer to tobacco trade or even to trade on a commercial scale. They add that the parties could not have intended to cover the trade of tobacco in them, since at the time the Treaties were concluded, the Mohawk had no tradition of trading tobacco. They were trading only pelts.

Regarding the first argument of the Attorneys General that the Applicants must first establish an Aboriginal or treaty right to trade tobacco, the Court must reject it in light of its previous conclusions on the Covenant Chain. The Court considers the Covenant Chain to be an independent source of obligations with no need for the party invoking it to first prove an Aboriginal or treaty right.  It creates, by itself, a protected right to require that certain issues be discussed in councils. This decided, the question now becomes whether the regulation of the tobacco trade, and notably the imposition of excise duties on Indigenous participants in it, is covered by the Covenant Chain. The Court concludes that this is the case for the reasons set out below.

It appears clearly from the evidence, including the reading of the historical records relating to the Treaties that the requirement for council discussion is established, and this, with respect to at least two distinct topics: military alliances and trade.

An analysis of the historical records of the Treaties reveals that several aspects relating to trade were subjects to be addressed in councils in order to maintain the Covenant Chain relationship: the price, the free access to merchants, the choice of the trading partner, the behaviour of traders, the products that can be traded between the nations, etc.

For the parties, trade and peace were interlinked. Difficulties regarding trade could have an impact on their friendship and in turn, on peace. It is thus clear that trade was a sensitive subject that the parties wanted to resolve in councils.

Nothing in the historical records of the Treaties and the evidence leads to the conclusion that the parties intended to discuss solely issues relating to the fur trade. It would be contrary to the intention of the parties to limit the extent of the Covenant Chain to the exact same products that were exchanged in the 17th and 18th centuries. That is not the essence of the Covenant Chain. The intention of the parties was to create a lasting relationship of friendship and peace, which would flourish through the development of trade, and not just the fur trade, the whole aided by the application of the Covenant Chain and the discussion at councils. The councils aimed at resolving any difficulties that would come between the parties and endanger their relationship.

While the Court acknowledges that the evidence of the Mohawks of Kahnawà:ke selling tobacco to Europeans is weak, it does not necessarily follow that the intention of the parties was to freeze their trading relationship in the 18th century, i.e., with each party limited to trading only what it was offering at that time.

Their intention was to maintain their friendship and peace, and this required protecting and maintaining a trade relationship that benefited both sides. The fact that the fur trade has become less profitable, while the tobacco trade has become more lucrative should not be determinative of the parties’ rights.

The solemnity of the promises

The law does not require any specific formality for the conclusion of a treaty. It only demands a certain degree of solemnity, which is to be analysed in its historical context.

Covenant Chain councils were held with a high degree of solemnity. This was reflected in the ceremonies preceding the discussions, their structure, and the exchange of wampum to support propositions, which all contributed to the solemnity of the councils.

The evidence also reveals numerous instances of Covenant Chain renewals, with both parties expressing solemn promises and mutual commitments. Words spoken on these occasions, such as "the chain that will not break" or "lasting and bright" as well as the promises to maintain its brightness all exude a sense of solemnity that underscored the gravity and significance of these engagements. The recognition that the Covenant Chain has endured for generations and will persist into the future further emphasizes the solemn nature of these commitments.

The nature of the Covenant Chain, the words used by both parties at its renewals, the extended period over which this was done, all combined to bestow a solemn character upon the Covenant Chain.

Conclusion on the constitutional status of the Covenant Chain

Amidst the turbulence of that era, two civilizations encountered one another and, in response to the challenge that this represented, they devised a distinctive mechanism to favour and govern a mutually beneficial relationship, the Covenant Chain.

Through their entry into and subsequent renewals of the Covenant Chain, the parties intended to establish a lasting relationship characterized by both a military and friendship alliance. This alliance was to be guided by the principles of Haudenosaunee diplomatic protocol and included a conflict-resolution procedure.

The Court concludes that the Covenant Chain is a treaty between the Haudenosaunee and the British, as recognized by s. 35(1). 

Extinction of the Covenant Chain

In Canadian law, the burden to prove the extinction of a treaty lies with the party making the claim of extinction. 

In Haudenosaunee law, there is no principle that either applies to or leads to the extinction of a treaty.

The evidence shows that the Covenant Chain is an agreement designed to last for perpetuity. 

The historical records contain numerous references where the parties expressed their intent to uphold, renew, or rejoin the Covenant Chain, with a desire for its longevity across generations to come. In line with that, the inclusion of a diplomatic forum for conflict resolution further supports the parties' intention to utilize it in a lasting relationship.

Canadian law requires the consent of both parties for the extinction of a treaty. Not only is there no evidence that the Haudenosaunee consented to the extinguishment of the Covenant Chain, but the evidence points to the contrary.

Breaking the Covenant Chain cannot result from mere negligence or dysfunction. To do that requires an explicit gesture from the parties expressing their intent to sever the relationship.

The Covenant Chain is thereby an unextinct Treaty.

IV- THE ABORIGINAL RIGHT

The Applicants also allege an Aboriginal right of participation in the tobacco trade.

The first issue that must be addressed is the applicable test to determine whether the right claimed by the Applicants is protected by s. 35(1). The Applicants ask the Court to depart from the Van der Peet test and offer a new framework that aims at protecting contemporary, rather than historic, practices.

The Court concludes that the conditions to depart from stare decisis are met.

After reviewing the historical background of the adoption of the United Nations Declaration on the Rights of Indigenous Peoples of 2007 (hereafter the UNDRIP) and the content of the Canadian UNDRIP’s Act adopted in 2021, the Court concludes that the UNDRIP, despite being a declaration of the General Assembly, should be given the same weight as a binding international instrument in the constitutional interpretation of s. 35(1). Therefore, the presumption of conformity, according to which the Charter should provide a protection at least as great as that afforded by similar provisions in international documents which Canada has ratified, applies. This presumption also applies to s. 35(1). As the presumption of conformity with the UNDRIP was not an issue raised before the Supreme Court in Van der Peet, the Court finds that the endorsement of the UNDRIP without qualification and the adoption of the UNDRIP Act bring a new legal issue into the debate that could have an impact on the s. 35(1) framework established by the jurisprudence.

Moreover, the Court comes to the conclusion that the endorsement of the UNDRIP without qualification and the adoption of the UNDRIP Act are more than additional instruments in the Aboriginal law landscape. They are also expressions of more profound changes. Since Van der Peet, knowledge about Indigenous peoples’ life in Canada has tremendously evolved, notably through the contribution of several public inquiries. The raising of a collective awareness on the past and present situations of Indigenous peoples in Canada is palpable. Canadian society is starting to grasp the pressing need for a renewed relationship in which reconciliation is central. As well, the executive and legislative branches have made significant steps towards reconciliation. The Court thus concludes that the parameters of the debate have fundamentally changed. The notion of reconciliation, as referring to a work-in-progress to arrive at a mutually respectful long-term relationship between sovereign peoples, did not have the same importance at the time Van der Peet was delivered as it has nowadays. The question before the Court when elaborating a s. 35(1) framework is no longer, or at least not only, how to “conciliate” Aboriginal rights claims with Crown’s sovereignty, but also how to reconciliate sovereign peoples through the recognition of Indigenous peoples’ rights.

While certain aspects of the test offered by the Applicants are convincing, the Court cannot adopt it entirely. The Court is notably not convinced by the reference to the UNDRIP as the direct source of Aboriginal rights. They did not demonstrate, or really argue, that the substantive norms of the UNDRIP were integrated into the domestic legal framework. Also, the Applicants’ test continues to espouse the notion of integrality. This notion does not conform to the current state of social sciences, and a court is ill-suited to determine from the outside, in the context of a trial, what is and what is not integral to a culture.

The Court’s reasoning to elaborate a new test is informed by several concerns. One of them is that its analysis must be guided by the notion of reconciliation.  The Court has also been particularly careful in the elaboration of a test to protect rights and not specific exercises of rights.

The Court concludes that the question it has to answer when faced with a notice to recognize an Aboriginal right is whether the activity or practice under consideration the exercise of is a right protected by the traditional legal system of the Indigenous peoples claiming the right. This question imposes the following three burdens on an Applicant:

1-     It will require first to identify the collective right that the Applicant invokes;

2-     Then, the Applicant will have to prove that such a right is protected by his or her traditional legal system; and

3-     Finally, the Applicant will have to show that the litigious practice or activity in question is an exercise of that right.

First step: To identify the collective right invoked

The test puts the emphasis on the fact that s. 35(1) aims at protecting rights, and not specific exercises of rights.

The reasoning of the Court is based on its reading of s. 35(1) in conjunction with s. 37 of the Constitution Act, 1982, and the observations made in dissent by Justices McLachlin and L’Heureux-Dubé in Van  der Peet.

The test adopted by the Court tries to reconcile the judicial framework for applying s. 35(1) with the intent of the constituent power when adopting s. 37 and s. 37.1 of the Constitution Act, 1982. The Court is of the view that the aim of the constitutional conferences would not have been to catalog a list of specific practices, customs or traditions but, rather, to identify collective rights which a party could then have claimed before a court.

An approach centered on collective rights is more aligned with the judiciary’s fundamental role of interpreting and enforcing legal norms in light of factual circumstances. It is also in conformity with the approach adopted in the UNDRIP.

Indeed, the UNDRIP recognizes inherent rights that Indigenous peoples have, as peoples. In the philosophy of the UNDRIP, Indigenous peoples do not have to prove their rights, right by right, group by group. They are generic rights inherent to Indigenous peoples by the sole fact that they are Indigenous and that they are peoples. The logic is much closer to other human rights instruments, such as the Charter or the Universal Declaration of Human Rights.

The majority in Van der Peet underlined the “aboriginal” aspect of the “aboriginal rights”. The majority intended to define the scope of s. 35(1) in a way which captures both the aboriginal and the rights in aboriginal rights.

However, after nearly thirty years, the evolution of the jurisprudence shows that the notion of rights might have disappeared behind the notion of “aboriginality”. It is now necessary to put more emphasis on the notion of rights in order to rebalance the two notions and offer an adequate protection for Aboriginal rights. For s. 35(1) to serve its function, it is necessary to put at the forefront of the test the fact that the Constitution protects rights with normative value.

Having said that, the test must also capture the “aboriginal” aspect of the right, and that is what is done at the second step of the test.

Second step: To prove that the right is protected by the traditional legal system

In the new parameters of the debate, reference to the Indigenous traditional legal system is a means of ensuring that the aboriginal aspect of “Aboriginal rights” is taken into account, while avoiding the stereotypes that accompany the notion of pre-contact practices.

The majority stated in Van der Peet that the reference to the pre-existing legal rights would take “s. 35(1) too far from that which the provision is intended to protect”. However, the purpose of s. 35(1) now encompasses the notion of reconciliation between sovereign nations, and the Court is convinced that the new test will better encapsulate what s. 35(1) aims to protect.

Indeed, by acknowledging and giving due recognition to the existence of the traditional Indigenous legal systems at the second step, the new test favour reconciliation. This is a clear departure from the doctrine of discovery and terra nullius. It fully recognizes that Indigenous peoples were not only occupying the land, but were and are nations with political, social, economical and also legal systems.

It is also in harmony with the UNDRIP, which calls for the due recognition of Indigenous legal systems.

For this stage of the test, Aboriginal rights must incorporate the notion of a certain continuity in time. Once the focus is on rights instead of on practices, the anchoring in time does not have the same negative impact. It will not prevent the evolution of the exercise of that right, nor will it favour a stereotyped vision of Indigenous rights.

If the Court is of the opinion that some continuity in time is essential to establishing constitutional rights, the “magic moment” of European contact is no longer relevant to determine the existence of an Aboriginal right. The reference to traditional legal systems will be sufficient to ensure continuity. Each claim should be dealt with on a case-by-case basis.

Third step: To show that the litigious practice or activity in question is an exercise of that right

Aboriginal rights are collective rights, but they are often pleaded before the courts by individuals. This can sometimes lead to tension, as the interests of the individual and those of his or her community might not align. The community might not necessarily want to embrace or support the litigious activity in question, but at the same time still want to defend its collective right.

The third step of the test would allow the Court to distinguish between the existence of a collective right, which has already been decided at step two, and the alleged exercise of that right by an individual. This distinction will make the justification analysis more acceptable since it will focus on the exercise of a collective right by an individual and not on the existence of the collective right itself.

In the end, in the spirit of reconciliation, the task should be eased for establishing the existence of an Aboriginal right. In most cases, the debate should no longer focus on the existence of the collective Aboriginal right, but on whether the individual practices at hand are protected by the collective right, and how to conciliate, at the justification step, the individual exercise of the Aboriginal right with other collective interests. The new test should avoid long historical debates unsuited to the judicial context and concentrate the efforts on the essential legal questions, notably, on how to conciliate the existence of the interests of two sovereign nations in a reconciliation perspective.

In this case, the Court applied the new test as followed.

First step: the identification of the collective right that the Applicants invoked.

The new test offers a different approach, starting with the first step. Rights are seen in a perspective closer to the approach adopted for Charter rights. Hence, at that initial step, the Court seeks only to identify the fundamental norm that the Applicants invoked which could deserve protection from State intervention. With this in mind, the right to transport tobacco across a frontier or the right to participate in the tobacco trade are not, in themselves, constitutional rights deserving to be protected from State intervention. They have no intrinsic normative value. The Court retains instead the right identified by the Applicants for the purpose of the test they offered: the right to freely determine and pursue economic development. That reflects the true foundation of the Applicants’ position, as it emerged from a general perspective of their pleadings and the evidence they brought. They argued that their actions should not have been criminalized, since they were done in pursuance of the right of their nation to freely pursue economic development by their own chosen means.

Second step: whether this right is protected by the Applicants’ traditional legal systems

The right to freely pursue economic development is arguably what is called a “generic” right. By their nature, there is a strong presumption that generic rights are part of the traditional legal system of the Indigenous group to which the individuals claiming the rights belong. The Court concludes that the right to freely pursue economic development is one of the generic rights shared by all Indigenous peoples. It is intimately tied to the survival and dignity of any nation. Without it, Indigenous societies are not only deprived of the opportunity to flourish, but they could also be threatened with the inability to meet their basic needs. Moreover, a myriad of other rights essential to the continuity of Indigenous societies depends on the right to pursue economic development, as the right to develop an education system, the right to develop independent Indigenous media, etc. This interpretation is supported by the UNDRIP, which illustrates that there is a consensus amongst the states that Indigenous peoples have the right to pursue economic development. The Court comes to the conclusion that the Mohawks of Kahnawà:ke benefit from this generic right in the same way as any other Indigenous people. In addition, there is evidence on the record for the Court to conclude that the right to pursue economic development is indeed protected under the traditional legal system of the Mohawks of Kahnawà:ke, the Haudenosaunee law.

Third step: whether the litigious activities before the Court are protected under the right of the Mohawks of Kahnawà:ke to freely pursue economic development

The Court concludes that there is conclusive evidence on the record that the tobacco trade to which the Applicants participated improves the economic well-being and quality of life of the community as a whole. The evidence shows that a large part of the community sees the tobacco trade as the best way to economic self-determination, and that it is, indeed, a considerable source of income for a large number of members of the community.

The Applicants have not called witnesses to testify on how their own activities fit into the larger Mohawk tobacco trade. This is not surprising as the previous test did not require such evidence. It is worth reminding that the Notice was raised in the context of criminal prosecutions. Any evidence by the Accused to demonstrate how their trade involved the community could lead to criminal prosecution of the people involved and even to self-incrimination.

Still, the Court believes that there is enough undisputed evidence on the records to link the Applicants’ actions with the right to economic development of their community:

• The Applicants are Mohawks of Kahnawà:ke;
• The tobacco was delivered to unlicensed manufacture on the reserves of Kahnawà:ke and/or Six Nations;
• The substance imported is bulk tobacco. It was presented in evidence to the jury that 23 fully load 53-foot tractor/trailers crossed the boarder, each containing 13, 172 kilograms of tobacco[3]. Eleven of those shipments were made under the surveillance of the police authorities. The evidence has shown that in Kahnawà:ke in the early 1990s, the tobacco trade started with the exportation of manufactured cigarettes to duty free zones which were then smuggled back into Canada. But then, in the 2000s, there was a transition with the development of manufacturing facilities instead.
• Dr. Alfred testified on the network of trade among Haudenosaunee communities from both side of the frontier[4].

Despite any reluctance one might have towards the tobacco industry, the evidence demonstrates that the actions of the Applicants that have been criminalized were done pursuant to the right of their community to freely pursue economic development.

The Court thus concludes that the Applicants have demonstrated on a balance of probability that their participation in the Mohawks’ of Kahnawà:ke tobacco trade industry is protected by their Aboriginal right to freely pursue economic development.

V- INFRINGEMENT

Infringement of the Covenant Chain

The Court concludes that the Crown has infringed its obligation under the Covenant Chain. The regulation of the tobacco trade was a well-known subject of disagreement between the Mohawks of Kahnawà:ke and the Crown, yet there was no attempt by the Crown to discuss the matter prior to the adoption of the Excise Act, 2001 even though other interested parties - including representatives of the tobacco industry - were consulted. Where discussion or collaboration did take place between the Crown and the Mohawks of Kahnawà:ke, they dealt essentially with matters relating to criminal law enforcement. The evidence demonstrates that the Crown did not discuss tobacco-related issues with the Mohawks to any relevant degree, much less with an open mind, and even less with the intention of coming to one mind in accordance with the Covenant Chain’s precepts.

Infringement of the Aboriginal right

The Court considers that the strongest argument of the Applicants is that the Excise Act, 2001 violates their Aboriginal rights by giving broad discretion to the Minister to issue licences without providing any guidance regarding Aboriginal or treaty rights, thereby imposing an unreasonable limitation of the rights.

The Excise Act, 2001 contains no exception or special guidelines or guidance for Aboriginal and treaty rights. The Regulations provide no precise grounds for the initial refusal to issue a licence. The issuance of a licence is not a right that an applicant automatically enjoys when certain conditions are fulfilled. It is more in the nature of a privilege, granted at the discretion of the Minister. There is a risk of infringement when a constitutional right is turned into a privilege, and despite this risk, the Excise Act, 2001 contains no guidance on how this discretionary power should be exercised. In the current scheme, the Mohawks of Kahnawà:ke can only exercise their rights at the discretion of the Minister, who may refuse to deliver a licence on the nebulous ground of public interest. In a s. 35(1) context, this is unacceptable. It cannot be assumed that discretion will be exercised in a manner that will accommodate the Applicants’ constitutional rights. In addition, the discretionary power of the Minister also allows him to “impose any other conditions” that he considers appropriate when issuing a licence. The imposition of conditions might be completely reasonable in the context of tobacco industry, and, indeed, might well be necessary to address public health and public security concerns. The difficulty arises from the fact that, in a s. 35(1) context, Parliament cannot give an unfettered power, without any guidance, where it is obvious that the legislation will apply to Indigenous applicants.

VI- JUSTIFICATION

Justification of the infringement of the Covenant Chain

There is not much that needs to be said in a case such as this, where the infringement in itself is the absence of discussion. The Attorneys General fail at the first step of the test, i.e., the duty to consult and accommodate.

In general, it will be difficult for the Attorneys General to demonstrate that a violation of an obligation to discuss is justified. Of course, there could be exceptional circumstances, such as a situation of emergency requiring immediate action. Such circumstances, however, were not present here. The Excise Act, 2001 was the modernisation of a provision that had existed for years. Moreover, the government found the time to meet other members of the industry.

The Court, therefore, concludes that the infringement of the Covenant Chain is not justified.

Justification of the infringement of the Aboriginal right

Even though the Court concludes that the Attorneys General have met their burden to demonstrate that the legislation pursues a valid, compelling, and substantial objective, the infringement is not justified. The evidence demonstrates that the Crown did collaborate, or at least tried to collaborate, with the Mohawks of Kahnawà:ke to enforce the Excise Act, 2001 and fight organized crime. The evidence also shows important efforts to implicate Indigenous peoples in the elaboration of strategies to reduce tobacco use in their communities. That said, these efforts are not enough for the Crown to discharge its procedural duty to consult the Mohawks of Kahnawà:ke on the adoption of the Excise Act, 2001 itself, and to find accommodation regarding the taxation scheme. It is not just any consultation about tobacco with just any Indigenous community that can fulfil the Crown obligation in this regard. There could not be adequate consultation, as any discussion was based on the premise that the Mohawks of Kahnawà:ke had no right regarding tobacco and that their current activities were criminal. The lack of consultation with the Aboriginal right holders is exacerbated by the fact that the government took the time to consult with industry associations and representatives to accommodate their needs.

As important as the public health objective might be, it does not override the Crown’s obligation to consult in the absence of exceptional circumstances. The Court concludes that the Crown did not discharge its duties to consult - and even less to accommodate. But the honour of the Crown and its fiduciary obligations are not limited to consultation. Other factors must be taken into consideration.

In Tsilhqot’in, the Supreme Court established that the “Crown’s fiduciary duty infuses an obligation of proportionality into the justification process”. One of the elements of proportionality is that the incursion in the protected right must be necessary to achieve the government’s goal. The Court acknowledges that the price of tobacco is an efficient tool to reduce tobacco use. Still, the absence of consultation blocked the possibility of exploring avenues that might have led to achieving the government’s goal, while limiting the infringement of an Aboriginal right. What is more, given that Indigenous peoples are amongst the first victims of tobacco use, their input on a law aimed at reducing the use of tobacco was even more critical to the quest to achieve the government’s goal. Another important consideration in assessing the measures adopted by the Crown is that the benefits expected from achieving that goal must not outweigh the adverse effects on the Aboriginal interest. It goes without saying that the benefits expected are huge. Nonetheless, the adverse effects must not be underestimated. First, the legislation has an important impact on the criminalisation of members of the community. This is all the more important in the current context where the overrepresentation of Indigenous peoples in the criminal system is well known and alarming. Second, the impact on economic development cannot be minimised. Third, the evidence shows the importance of the tobacco industry in the eyes of the community, which sees it as a means of developing their capacity to govern themselves. Thus, there is a negative symbolic impact that results, which inevitably prejudices the relationship between the Mohawks of Kahnawà:ke and the Crown.

VII- REMEDY

The jury, after the criminal trial, has found the accused guilty of offences based on a disposition which, by virtue of s. 35(1) and s. 52 of the Constitution Act, 1982, is of no force and effect with respect to the Applicants. The current jurisprudence defines very strictly the conditions to enter an acquittal once a jury has rendered a guilty verdict and has been discharged. These conditions are not met. The Court considers that the closest situation to the present circumstances is the case where an accused has been found guilty by a jury of a non-existent offence and that a Tribunal became aware of the situation before sentencing. In such circumstances, the solution is not an acquittal but an arrest of judgment.

The Court therefore concludes that the common law stay of proceedings is the adequate remedy and the criminal proceedings against Derek White and Hunter Montour should be permanently stayed.

I.            INTRODUCTION

[1]   Derek White and Hunter Montour, two Mohawks of Kahnawà:ke[5] (hereafter the Applicants) were found guilty by a jury of different criminal infractions relating to the importation of large quantities of tobacco without paying the Excise Act, 2001[6] duties (hereafter the Excise Act, 2001).

[2]   They are now seeking a permanent stay of proceedings arguing that their Aboriginal and treaty rights guaranteed by s. 35(1) of the Constitution Act, 1982 (hereafter s. 35(1)) have been unjustifiably infringed. They allege that ten treaties negotiated between 1664 and 1760 (hereafter the Treaties), along with the Covenant Chain, an overarching oral meta-treaty, guarantee their right to tobacco trade and to discuss any related issue with the Crown. Additionally, they assert an Aboriginal right to tobacco trade.

A.       AN OVERVIEW OF THE PAST

[3]   In this case, the past is always present. It is a past that many are unfamiliar with, but it has been brought to the forefront for the purpose of this case. 

[4]   First and foremost, it is essential to present a succinct overview of the historical narrative pertaining to the matters under consideration, creating a framework for enhanced comprehension.

[5]   The Haudenosaunee had been living in North America for thousands of years before the arrival of the Europeans. Haudenosaunee means People of the Longhouse. They are also commonly referred to as the Iroquois. They were residing in the northern part of what is known today as New York State, along the Mohawk River Valley, the largest tributary of the Hudson River. It was a strategic passage through the Appalachian and the Adirondack Mountains, flowing into the Hudson River just a few miles north of the state capital of Albany. The Haudenosaunee family was originally known as the Five Nations living along the river from east to west, starting with the Mohawk, then the Oneida, the Onondaga, the Cayuga and the Seneca at the western end of the territory. 

[6]   Before the arrival of the Europeans and after a dark period of fratricidal wars, the five nations of the Haudenosaunee finally attained peace and created the Iroquois Confederacy (hereafter The Confederacy), also known as The League. The Confederacy is founded on The Great Law of Peace, one of the fundamental meta-narratives of the Haudenosaunee. In 1724, the Tuscarora joined the Confederation that became recognized as the Six Nations.

[7]   These fratricidal wars, and the process of negotiating and maintaining the peace that followed, made the Haudenosaunee not only great warriors but also skilled diplomats.

[8]   Despite the creation of the Iroquois Confederacy and the precepts of The Great Law of Peace, there were subsequent episodes of warfare among the Haudenosaunee, but this did not result in the break-up of the Confederacy. It still exists today and is composed of the same number of hereditary Chiefs, has the same political structure, and is governed by the same legal precepts.

[9]   Due to its strategic geographical location, the Mohawk nation was the keeper of the Eastern door for the Confederacy. Therefore, in the seventeenth century, they hosted the European newcomers who arrived in North America. This began with the Dutch around 1610, followed by the British in 1664.

[10]           The Haudenosaunee displayed a hospitable stance towards the Europeans, accommodating their presence on their land without resorting to conflict to remove them. They actively participated in trade with both the Dutch and, later, the British, demonstrating an eagerness for the European goods that could enhance the well-being of their people.  This resulted in a robust diplomatic and commercial relationship that endured for centuries.

[11]           At the end of the seventeenth century, an important contingent of Mohawk moved north, to what became known as Kahnawà:ke. They converted to Catholicism under the influence of French missionaries.

[12]           The Mohawks of Kahnawà:ke nonetheless continued their diplomatic relationship and trade with the British in Albany. Positioned strategically, they entertained diplomatic and trade relations with the French as well.

[13]           In 1664, the British arrived in Albany with the goal of colonizing the local populations and acquiring land and resources.

[14]           Upon arrival, they quickly realized that they needed to establish agreements with the Indigenous population if their colonization project was to be successful.

[15]           One of the reasons they sought to forge agreements with the Indigenous population was for military purposes. Wars in Europe between England and France frequently spilled over into the American theatre, like the Spanish and Austrian Succession Wars. While both the British and the French desired to gain the support of Indigenous nations as allies, maintaining their neutrality often became the preferred option for the Europeans, who were also concerned by conflicts between Indigenous nations.

[16]           Another motive for forging agreements was the highly profitable fur trade. Both Britain and France were actively involved in the fur trade with the Indigenous nations and millions of beavers’ and muskrats’ skins were transported across the Atlantic during that era.

[17]           The British and French employed distinct commercial trading systems. Under the French system, control of the fur trade was granted to a few companies, and sometimes even to a monopoly, with payments made once a year. In contrast, the British allowed their traders to conduct business independently, and payments were made at the time of each transaction.

[18]           The Mohawks of Kahnawà:ke were strategically situated at the crossroads of the travel and trade routes between the St. Lawrence River Valley and the British colonies. Due to the more flexible nature of the British fur trading system, a parallel market to the French monopole emerged, involving both French merchants from Montreal and British traders in Albany. In this parallel market, the Mohawks of Kahnawà:ke acted as intermediaries, facilitating the transportation of furs from the French merchants to Albany, while also engaging in trade with the British merchants.

[19]           Due to various factors, such as extensive hunting leading to a decline in animal populations and a waning European interest in beaver and muskrat fur, the fur trade gradually diminished during the nineteenth century.

[20]           Shifting our focus to the relationship between the Indigenous nations and the British, following the British acquisition of New Netherland in 1664, they continued to use Albany as the primary center for commerce and diplomacy with the Haudenosaunee, much like it had been during the Dutch era.

[21]           The relationship developed and evolved through council meetings, a vital component of the Haudenosaunee diplomatic system. These meetings took place in Albany. Whenever one party sought to convene a council, a wampum belt was sent as an invitation to the other party. The Haudenosaunee representatives then traveled to Albany, where they were warmly received, provided with food, and offered accommodation by the British. These councils typically took place from spring to fall, as winter posed challenges for long-distance travel.

[22]           The councils followed a specific Haudenosaunee procedure, where one party present a proposal to the other. The recipient party would take the necessary time to consider the proposition, which could sometimes extend over several days, or even months. Once they were ready to provide a response, they reconvened at the council, where the proposition was frequently repeated, followed by their answer. The goal was to reach a consensus that would satisfy all parties concerned. These council sessions could extend for days or even weeks, depending on the time needed to achieve a mutually acceptable compromise. The attendance fluctuated, sometimes involving just a handful of representatives, while at other times they could draw hundreds or even thousands of individuals.

[23]           From 1664 to 1755, the Albany Commissioners held the authority to hold councils and to negotiate agreements and treaties with the Haudenosaunee, including with the Mohawks of Kahnawà:ke. Initially, these Commissioners were primarily traders of Dutch descent. However, in 1755, Sir William Johnson took on the role of British Superintendent of Indian Affairs, becoming the key figure in negotiating treaties, including those relevant to this case.

[24]           Sir William Johnson is known for his knowledge of the Mohawk language, culture and society. He was the common-law partner of Molly Brand, a Mohawk clan mother who held significant influence in the community. They had nine children, one of which, John, later followed in his father’s footsteps and assumed the position of Superintendent of Indian Affairs.

[25]           The Treaties invoked by the Applicants were concluded between 1664 at the arrival of the British and September 16, 1760, one week after the capitulation of Montreal. Of those Treaties, only the one of 1664 is written. All, expect the two last one, were concluded in Albany at council meetings.

[26]           On August 30, 1760, as the British advanced toward Montreal in the final stages of the British campaign against France, Sir William Johnson secured the Mohawk's neutrality through the Oswegatchie Treaty. He guaranteed, among other things, the protection of all rights and privileges enjoyed during the French regime.

[27]           Montreal capitulated on September 8, 1760. As part of the French surrender, a two-day treaty council was held in Kahnawà:ke on September 15 and 16, where the trade routes to Albany were reopened with the assurance that they will remain clear of any obstacle.

[28]           The Mohawk and the British continued to held councils meeting well into the nineteenth century, until the relationship slowly erodes through demographic, sociological and political changes.

[29]           Canadian policies of civilization and assimilation of Indigenous nations during the nineteenth and twentieth centuries are extensively recorded in the findings of the Royal Commission on Aboriginal People (1991-1996) and the Truth and Reconciliation Commission of Canada (2008-2015). While not the primary focus of this case, the events they documented are nonetheless part of the relationship between the Crown and the Mohawk and are the impetus for our current era of reconciliation, as will be further explained.

[30]           This is but a very brief description of the historical narrative.

[31]           That being said, a few additional preliminary comments are necessary to help to the comprehension of this judgment. These comments pertained to an overview of the procedural history of the Notice's hearing, the methodology used, the Indigenous perspective, the challenges posed by the case, and the period of reconciliation.

B.                 THE PROCEDURAL BACKGROUND

[32]           An outlined of the procedural background is helpful to the understanding of the overall context.

[33]           In the aftermath of an extensive investigation known as "Mygale," which involved law enforcement agencies from both sides of the Canada-USA border, the Applicants, who both belong to the Mohawk community of Kahanawà:ke, were jointly charged, alongside several other individuals not concerned by this judgment, of multiple criminal offenses committed between 2014 and 2016. These offenses pertained to the failure to remit taxes following the importation of large quantities of tobacco from the United States.

[34]           On May 9th, 2019, at the end of a two-month-long trial, a jury rendered a verdict, finding Derek White guilty of committing an indictable offense for the benefit of a criminal organization (s. 467.12 of the Criminal Code), conspiring to defraud the Government of Canada (s. 465(1)(c) of the Criminal Code), and perpetrating fraud against the Government of Canada (s. 380(1)(a) of the Criminal Code). He was acquitted of conspiring to defraud and committing fraud against the Government of Québec. The maximum prison sentence for these infractions is fourteen years.

[35]           Hunter Mountour was found guilty of the only offence he was charged with, to have participated in activities of a criminal organization (s. 467.11 Cr. C.). The maximum prison sentence for this infraction is five years.

[36]           All these infractions are connected to the scheme employed by the Applicants to bring in substantial quantities of tobacco from the United States while evading the taxes mandated by the Excise Act, 2001. The unpaid taxes on the eleven shipments of tobacco under police control presented in evidence amount to a total of 18,700,000$.

[37]           On July 27, 2018, before the jury trial, they filed a Notice of constitutional questions. The present judgment is about the fourth and final version of this motion, filed on November 21, 2021, titled Fresh as amended consolidated constitutional pleading (hereafter the Notice).

[38]           The initial filing of the Notice on July 27, 2018, came after an interim ruling by Justice Pennou, who was serving as the case management judge. This ruling stated that the Notice would be heard if the jury returned a guilty verdict[7].

[39]           Originally, the Notice was also alleging infringement of their rights by the provincial government, reflecting the charges of fraud against the Gouvernement du Québec. Following the acquittal of Dereck White on all the charges involving that government, the Notice was amended to reflect the verdict. Only the federal Excise Act, 2001, remained under scrutiny.

[40]           The Attorney General of Québec as well as the Attorney General of Canada intervened on the Notice.

[41]           In October 2019, the Mohawk Nation Council of Chiefs (hereafter the MNCC), the traditional government of the Mohawk Nation that is part of the Confederacy, heard about the Notice.  They first contacted the Applicants and asked them to refrain, as individuals, from making arguments involving Mohawk or Haudenosaunee treaty or Aboriginal rights that are collective rights. The Applicants refused to do so.

[42]           On January 7, 2020, the MNCC sent a letter to the Court advising that, as the holders and stewards of the collective’s rights, it wished to formally request the Court to refrain from considering the constitutional arguments presented by the Applicants.

[43]           On February 11, 2020, the MNCC filed a Communication of the Mohawk Nation Council of Chiefs. On March 12, 2020, following a series of case management hearings, that procedure was amended and refiled as the Mohawk Nation Council of Chiefs Motion in Support of Application for an Adjournment and an Order for Consultation.

[44]           In this motion, the MNCC alleged that the reception of the Notice by the Attorneys General triggers a duty to consult with the MNCC before they decide to intervene, because their intervention may adversely affect Aboriginal and treaty rights.  The MNCC thereby requested a six-month adjournment of the proceedings on the Notice to permit good faith discussion to take place.

[45]           For the case to move forward despite the COVID-19 pandemic, the parties and the MNCC identified a question of law that could be argued in writing only: whether the principle of the honour of the Crown, in a criminal trial, requires consultation with the holders of Aboriginal and treaty rights, where those rights are engaged in the trial. 

[46]           On September 18, 2020, the Court issued short conclusions in writing[8], holding that the reception of the Notice did not engender a duty to consult by the Attorneys General before intervening. However, the Court also concluded that the principle of the honour of the Crown and the rule of natural justice, more particularly the rule of audi alteram partem, required that upon receiving a notice of a constitutional question concerning Aboriginal or treaty rights, the Attorneys General have to publicize it as to allow the Indigenous nations that are potentially concerned by the Aboriginal or treaty rights identified in the notice to make an informed decision about it.

[47]           The Attorneys General conformed to this conclusion and the Notice was publicized on their websites. 

[48]           On November 30, 2020, the MNCC filed the Motion to Intervene of the Mohawk Nation Council of Chiefs. Beside the MNCC, no other Indigenous nation or organisation presented a motion to intervene. The MNCC motion was contested by both Attorneys General.

[49]           On February 19, 2021, in a written judgment[9], the Court granted the motion, allowing the MNCC to present evidence about the perspective of the Mohawk nation. The MNCC was authorized to call two witnesses: one expert in Haudenosaunee historical and cultural research and a Mohawk chief recognized by the Haudenosaunee institutions. That evidence was presented by Dr. Amber Adams and Chief Curtis Nelson. The MNCC was also authorized to cross-examine the witnesses called by the parties and to file written notes and authorities and to make arguments within the scope of the authorization to intervene.

[50]           The evidence on the Notice was presented mostly by experts during a four-month hearing, with oral arguments spanning 24 days and supplemented by 600 pages of written submissions. The historical evidence consists of hundreds of documents written in the language of the era, making their analysis and comprehension quite intricate. Since the Notice is part of a criminal jury trial, the presentation of evidence has been condensed. What would have taken maybe a year or even more in the context of a civil declaratory motion, was presented in four months. However, this does not imply that the issues at hand are any less intricate.

C.                 METHODOLOGY

[51]           This judgment is notably extensive, and its length is attributed to the substantial quantity and complexity of the legal matters examined, encompassing both Aboriginal and treaty rights, as well as the vast historical context. A few words on issues of methodology are thereby necessary for a better understanding of the judgment.

C.1            The evidence

[52]           As customary in s. 35(1) cases, a formidable amount of evidence was presented. Hundreds, if not more, of historical records were produced, as well as historical secondary sources. Expert witnesses testified for days, supporting their extensive written reports.

[53]           It is of course impossible to summarize or refer to all the evidence presented. That is why only the evidence essential to its understanding found its way in the judgment. That being said, all the evidence was considered and has informed the analysis of the Court.

C.2            The languages

[54]           Language has a significant place in this case. In addition to the use of both official languages throughout the hearing (with the explicit consent of the Applicants who have a right to a criminal trial in the language of their choice (s. 530 Cr.c.)), a third language, the Mohawk language, Kanyen’kéha, was prominently featured. It serves not only as a component of relevant evidence illustrating its influence on Mohawk culture, societal structures, and political organizations, but also because certain witnesses used it to convey its significance and deep meaning, thereby showcasing its connection to both the past and the present.

[55]           Ideally, and as a mark of respect for all parties involved, the use of Kanyen’kéha should have been employed when referencing to Mohawk concepts, along with their English translation. However, Kanyen’kéha is an exceedingly intricate language, characterized as one of the most complex in the world, as highlighted by Dr Adams during her testimony. It is a language where individual words encompass entire phrases, and the grammar is both elaborate and intricate. As an example, the Kanyen’kéha word for Covenant Chain is Tehontatenentshonteronhtáhkwa, which signifies "They (males) together have attached the ends of one another’s arms at some point in the past and continue to do so now."

[56]           Incorporating both languages on every occasion would have significantly added to the complexity of the judgment, making it more cumbersome to read. Given that English is the more widely understood language among all parties, Kanyen’kéha terminology will be employed only when essential for comprehension purposes.

C.3  The historical terminology and spelling

[57]           In a historical context as extensive as this one, it is unsurprising that the terminology used to describe events or entities, whether governmental or not, has evolved over time, and that some of them may have been referred to by different names. To stay as faithful as possible to the evidence as it was originally presented, the Court is adopting the terminology employed by the witnesses, even if it varies from one witness to another. Despite these variations, it does not result in any confusion.

[58]           The same principle applies to the spelling found in historical records. When reproducing historical documents, the Court replicates them exactly as they are written. Also, when referring to events or document of a certain era, the Court will use the terminology of that time to facilitate the comprehension.

C.4  The structure of the judgment

[59]           The judgment is divided in six sections: the Indigenous perspective, the treaty right, the Aboriginal right, the infringement, the justification and the remedy.

[60]           This order was guided by the presentation of the evidence, the nature and the strength of the arguments presented and the internal logic of the decision. It is expected that the order of the sections will facilitate the comprehension of the judgment and will also help to reduce as much as possible the inevitable repetitions of such a lengthy judgment.

[61]           Finally, because it is not easily accessible, the historical documentation directly relating to the Treaties invoked have been annexed to the judgment.

II.            THE INDIGENOUS PERSPECTIVE

A.                 THE LAW

[62]           The obligation to understand and consider the perspective of the Indigenous nations is well established in Canadian jurisprudence. It is a principle of equity.

[63]           The concept of Indigenous perspective was incorporated in the Canadian jurisprudence by Chief justice Lamer in Van der Peet[10] to integrate in the decision-making process the perspective of a different society, culture and normative system.

[64]           The Indigenous perspective is often, but not exclusively, brought to the courts through evidence coming from oral tradition. Since Van der Pet, the courts have adapted to the challenges of presenting evidence arising from oral tradition and the tension that this creates in a legal system where hearsay evidence is intrinsically suspicious and seen as unreliable.

[65]           In Van der Peet, the Supreme Court recognized the challenges in aboriginal law cases where written evidence may simply not exist:

 68. In determining whether an aboriginal claimant has produced evidence sufficient to demonstrate that her activity is an aspect of a practice, custom or tradition integral to a distinctive aboriginal culture, a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in.  The courts must not undervalue the evidence presented by aboriginal claimants simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case[11].

[66]            In Delgamuukw, the Court also stated:

84. This appeal requires us to apply not only the first principle in Van der Peet but the second principle as well and adapt the laws of evidence so that the aboriginal perspective on their practices, customs and traditions and on their relationship with the land, are given due weight by the courts.  In practical terms, this requires the courts to come to terms with the oral histories of aboriginal societies, which, for many aboriginal nations, are the only record of their past.  Given that the aboriginal rights recognized and affirmed by s. 35(1) are defined by reference to pre-contact practices or, as I will develop below, in the case of title, pre-sovereignty occupation, those histories play a crucial role in the litigation of aboriginal rights[12].

[67]           The Supreme Court added that the evaluation of the evidence must be done on a case-by-case basis:

87. Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents. This is a long-standing practice in the interpretation of treaties between the Crown and aboriginal peoples: Sioui, supra, at p. 1068; R. v. Taylor (1981), 1981 CanLII 1657 (ON CA), 62 C.C.C. (2d) 227 (Ont. C.A.), at p. 232.  To quote Dickson C.J., given that most aboriginal societies “did not keep written records”, the failure to do so would “impose an impossible burden of proof” on aboriginal peoples, and “render nugatory” any rights that they have (Simon v. The Queen, 1985 CanLII 11 (SCC), [1985] 2 S.C.R. 387, at p. 408).  This process must be undertaken on a case-by-case basis.  I will take this approach in my analysis of the trial judge’s findings of fact[13].

[68]           The Supreme Court also cautioned trial judges on their approach to such evidence:

98. Although he framed his ruling on weight in terms of the specific oral histories before him, in my respectful opinion, the trial judge in reality based his decision on some general concerns with the use of oral histories as evidence in aboriginal rights cases.  In summary, the trial judge gave no independent weight to these special oral histories because they did not accurately convey historical truth, because knowledge about those oral histories was confined to the communities whose histories they were and because those oral histories were insufficiently detailed.  However, as I mentioned earlier, these are features, to a greater or lesser extent, of all oral histories, not just the adaawk and kungax.  The implication of the trial judge’s reasoning is that oral histories should never be given any independent weight and are only useful as confirmatory evidence in aboriginal rights litigation.  I fear that if this reasoning were followed, the oral histories of aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system, in contradiction of the express instruction to the contrary in Van der Peet that trial courts interpret the evidence of aboriginal peoples in light of the difficulties inherent in adjudicating aboriginal claims[14].

[69]           In Mitchell[15], the Supreme Court revisited the issue of the admissibility of oral tradition and its probative value. The Court reiterated that oral tradition is admissible if it is useful and reasonably reliable:

31. In Delgamuukw, mindful of these principles, the majority of this Court held that the rules of evidence must be adapted to accommodate oral histories but did not mandate the blanket admissibility of such evidence or the weight it should be accorded by the trier of fact; rather, it emphasized that admissibility must be determined on a case-by-case basis (para. 87).  Oral histories are admissible as evidence where they are both useful and reasonably reliable, subject always to the exclusionary discretion of the trial judge[16]. 

[70]            The Supreme Court suggests the following method to assess its admissibility and reliability:

33. The second factor that must be considered in determining the admissibility of evidence in aboriginal cases is reliability: does the witness represent a reasonably reliable source of the particular people’s history?  The trial judge need not go so far as to find a special guarantee of reliability.  However, inquiries as to the witness’s ability to know and testify to orally transmitted aboriginal traditions and history may be appropriate both on the question of admissibility and the weight to be assigned the evidence if admitted.

34. In determining the usefulness and reliability of oral histories, judges must resist facile assumptions based on Eurocentric traditions of gathering and passing on historical facts and traditions.  Oral histories reflect the distinctive perspectives and cultures of the communities from which they originate and should not be discounted simply because they do not conform to the expectations of the non-aboriginal perspective.  Thus, Delgamuukw cautions against facilely rejecting oral histories simply because they do not convey “historical” truth, contain elements that may be classified as mythology, lack precise detail, embody material tangential to the judicial process, or are confined to the community whose history is being recounted[17].

[71]            In R. v. Marshall[18], Justice McLachlin stated that the goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed.  She added that, in this exercise, the court must be sensitive to the unique cultural and linguistic differences between the parties, and that the words of the treaty must be given the sense that they would naturally have held for the parties at the time they concluded the treaty[19].

[72]           Finally, the Supreme Court reminds us that the admissibility of oral tradition should not be interpreted as the abandonment of all rules of evidence, and that the trial judge still must be convinced on the balance of probability:

39.  There is a boundary that must not be crossed between a sensitive application and a complete abandonment of the rules of evidence.  As Binnie J. observed in the context of treaty rights, “[g]enerous rules of interpretation should not be confused with a vague sense of after-the-fact largesse” (R. v. Marshall, 1999 CanLII 665 (SCC), [1999] 3 S.C.R. 456, at para. 14).  In particular, the Van der Peet approach does not operate to amplify the cogency of evidence adduced in support of an aboriginal claim.  Evidence advanced in support of aboriginal claims, like the evidence offered in any case, can run the gamut of cogency from the highly compelling to the highly dubious.  Claims must still be established on the basis of persuasive evidence demonstrating their validity on the balance of probabilities.  Placing “due weight” on the aboriginal perspective, or ensuring its supporting evidence an “equal footing” with more familiar forms of evidence, means precisely what these phrases suggest: equal and due treatment.  While the evidence presented by aboriginal claimants should not be undervalued “simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case” (Van der Peet, supra, at para. 68), neither should it be artificially strained to carry more weight than it can reasonably support.  If this is an obvious proposition, it must nonetheless be stated[20].

B.       THE PARTICULAR HISTORICAL CONTEXT OF THE INDIGENOUS PERSPECTIVE IN THIS CASE

[73]           Central to the context put forward in the Notice is the relationship that existed between the Mohawk and the British nations between 1664 and 1760.

[74]           Rarely, even in a s. 35(1) case, does the Superior Court have to decide the outcome of a case based on facts that have occurred over a period of one hundred years, some three centuries ago.

[75]           By 1664, when the British took over New Amsterdam, the Mohawk had been trading with the Dutch for several decades, but they did not know much about the British. Thus, an issue for them was to determine if their previous trading relationship would continue with the newcomers.

[76]           When the British arrived, the Mohawk were living in a complex political and diplomatic structure. They had laws and a code of conduct established through meta-narratives further described herein, that had been orally transmitted from generation to generation for hundreds of years. They were skilled diplomats and seasoned warriors, and they were open to engage in a new relationship with the newcomers.

[77]           England, for its part, was a dominant European nation engaged in a race with other nations from abroad to expand their sovereignty over new territories that they were beginning to covet. The British arrived on this side of the Atlantic Ocean with the intention to take possession of the land in order to establish colonies on it. They also brought with them their European wars.

[78]           One of the issues before the Court is whether the Treaties currently bind the parties. The Applicants also submit that the Covenant Chain is a treaty that currently governs their relationship. They argue that it is a far-reaching agreement and a permanent alliance that is not extinct.

[79]           In this regard, the Court is being asked to consider the effect of one hundred years of a treaty relationship between two nations. This analysis is all the more complicated by the fact that these parties had different cultures, languages, laws, interests, and social and political organisations. The fact that only one of the Treaties is written and that the Covenant Chain is expressed in a metaphoric form heightens the complexity of the task at hand.

[80]           At the time of the Treaties, neither nation was asserting sovereignty over the other. The Royal Proclamation will be issued three years after the Treaty of September 1760. Nor were they at war, even though occasional conflicts arose between them, or between certain members of their respective communities. 

[81]           Considering this historical backdrop, it is easy to understand that the Court’s analysis cannot be limited to an examination of the Treaties and the respective perspectives of each party on a particular treaty disposition. It must go deeper.

[82]           This case involves two different cultures, each with its own separate context and with different interests, perspectives, and objectives, as well as their relationship that spanned over one hundred years. The Court must then keep these differences in mind and remain sensitive to the nuances brought by their lengthy relationship.  

C.       THE EVIDENCE PRESENTED BY THE MNCC

[83]           To determine the perspectives of two quite different nations over a period of one hundred years starting more than 350 years ago is, to say the least, an evidentiary challenge. It is not an easy task to present this type of evidence in order for the Court to be able to reach the necessary conclusions on it.  One might even question if it is possible at all, particularly in the context of a criminal jury trial.  That question was addressed by the Mohawk Nation Council of Chiefs.

[84]           Mtre. Paul Williams, counsel for the MNCC, argued that the obligation to consider the Indigenous perspective is unfair to the Court. He stated that it is impossible to acquire such a knowledge with a presentation made by only two witnesses, and without going into the communities. As a result, it is equally unfair to the Indigenous nation he said.

[85]           He certainly has a point. But that does not relieve the Court from its duty to assess the evidence, even if confined by the limited time and evidence available.

[86]           As previously said, the MNCC was authorized to present evidence as to the perspective of the Mohawk nation. It was done through the testimonies of Dr. Amber Adams, Ph.D., and of Chief Curtis Nelson.

[87]           Despite the limits imposed by the Court on the MNCC’s intervention, Dr. Adams and Chief Curtis Nelson provided an impressive amount of complex, relevant, and useful evidence on the perspective of the Haudenosaunee and of the Mohawk nation.  The Haudenosaunee family (the Indigenous name for Iroquois) is composed of six nations: the Mohawk, the Oneida, the Onondaga, the Cayuga, the Seneca and the Tuscarora. They share a common culture relevant to the present judgment. This evidence gave the Court a better understanding of the Haudenosaunee culture, history, and law.  Of course, it is neither enough evidence nor enough time to develop a profound understanding of the culture of any nation.

[88]           One of the reasons the Court granted permission to intervene to the MNCC was for its unique position to bring to the Court the perspective of the collectivity and of the nation, something that the Applicants, who are arguing collective rights in their defence, are under no obligation to do.

[89]           Having heard that evidence, the Court acknowledge that there is not only one Indigenous perspective. Nations and societies are too complex and plural to have only one sole perspective. The conclusions of this Court on the Indigenous perspective are drawn in the context of the legal issues submitted and based solely on the evidence presented. This is a very narrow and limited context compared to the actual relationship that exists between the Crown and the Mohawk Nation and the Haudenosaunee.

[90]           The following words of Mtre. Williams in oral argument are worth repeating:

The Mohawk Nation Council of Chiefs was allowed to become a full party intervenor in this matter to help the Court by providing the Indigenous perspective on some of the issues.

There is no indigenous perspective. Amber Meadow Adams expressed her discomfort at being asked to write her report alone for that's not our way of working.

She pointed out all she can provide is a perspective, a personal one, not the perspective.

But there is Haudenosaunee law and history and knowledge, and I hope what we have brought to the Court has been of assistance. Within the rules, and I'll speak about them more, we've done our best[21].

[91]           The Court will devote a full section of the present judgment to the evidence presented by the MNCC for the following reasons.

[92]           At first glance, this section of the judgment may seem unduly long. Usually, a judgment tends to focus on the evidence necessary to deal specifically with the issues presented. This evidence is somehow different. Its purpose is not to establish material facts per se, but to help the Court to know better and to understand the culture of the Haudenosaunee and the Mohawk in order to determine the intention of the parties at the treaties concluded in the 17th and 18th centuries.

[93]           Even if it is presented to show the perspective of the Mohawk and the Haudenosaunee at the time of the conclusion of the Treaties, this evidence can only be understood through the broader spectrum of the culture, the social organization, the laws and the codes of conduct of this society, all of which are different from the one non-Indigenous people know and live under. This is a lengthy process that takes time.

[94]           Before the hearings, as, unfortunately, the vast majority of the non-Indigenous Canadian population, the undersigned was ignorant of the Haudenosaunee and Mohawk culture. It was a privilege to have it explained by two members of the Mohawk nation who came to the Court with their personal experience, understanding and cultural knowledge of their Nation.  It is important, for the parties, for the public and for the higher courts that may have to examine this judgment, to know what the Court understood and retained of this evidence and how it was used.

[95]           A few final remarks. As Dr. Adams reminded the Court, the Haudenosaunee perspective, comprised of the language, the culture, and the collective memory of a nation, was weakened because of decades of colonialism that prevented the Indigenous communities from maintaining those essential elements and, thus, their ability to adequately represent their version of historical events. This should be kept in mind in the analysis of this evidence.

[96]           Europeans were the writers, and still are, while the Haudenosaunee were the tellers, and still are, who for years were deprived of the ability to tell. In her report Dr. Adams said:

And, finally, before that beginning, I would respectfully ask the court to bear in mind that none of the people who taught me exercised their generosity without pain. Holding onto our onkwehonwenéha, our Haudenosauneeness — enough, at least, to present the court with a Haudenosaunee perspective — has cost us. Whether imprisonment for practicing our ceremonies when Canada made laws forbidding them, or removal of one’s children to a residential school, from being beaten, starved, or raped for speaking a Haudenosaunee language in such schools, to the armed imposing of an elective system where a government still stood, real grief and real pain have been the price of keeping our voices. And so it remains. When an Indigenous person enters a Canadian court to talk about our communities, our families, our histories, and our lives, it’s the rare witness who doesn’t have to struggle to speak past their scars. These scars are the direct result of our fight to keep the very knowledge this court now requires. When we enter your court, our ancestors come with us, and with them, generations of accumulated pain. With humility, I invite the court to consider that pain as the quietest and the heaviest part of the Haudenosaunee perspective[22].

[97]           Those are not just words. Tears were shed during this hearing, tears for what was endured personally and collectively by many Indigenous peoples of Canada.  They flowed when Chief Curtis Nelson talked about his childhood and how, when just a child, he was sent to a residential-type school where he was beaten for speaking the only language he knew, the Mohawk language. This was a place where his hair was cut, where he was subject to multiple testing for every disease there was, where, under threats made to his parents of sending him to another residential school far away, he was put on a bus with other children to have his tonsils removed. He lost his language; he did not learn his traditions[23].

[98]           Respect and attention for such evidence is part of the reconciliation process, a goal and an obligation for the courts. 

[99]           Finally, even though this section of the judgment puts the emphasis on the evidence presented by the MNCC, the evidence on the Indigenous perspective is not restricted to that proof. It also comes from other sources, such as historical documents and other witnesses, lay and expert, presented by the parties. Consequently, it is by studying all that evidence and all its specificities that the Court will analyze the issues before it.

D.       Dr. ADAMS TESTIMONY

[100]       Dr. Amber Meadow Adams was declared an expert in Haudenosaunee cultural and historical research and narrative. The Mohawk nation is one of the six nations composing the Haudenosaunee family. Their culture and perspective are the same and the reference to one entity shall be understood as applying equally to the other, except for an indication to the contrary.

D.1  The Attorneys General’s concern over Dr. Adams’ evidence

[101]       While not objecting to Dr. Adams’ qualification as an expert nor to her evidence, the Attorneys General raised concerns about the probative value of her expertise related to oral tradition and narratives. The Court will address these concerns before analysing the evidence.

[102]       Dr. Adams was declared an expert in Haudenosaunee cultural and historical research and narrative[24] and her qualifications were not contested. She presented an 89-page report (MNCC-1) and testified for two days. 

[103]       Her evidence dealt with the Haudenosaunee language and how it shapes their society, the structure of relationships between individuals or nations, narratives, the longhouse, the stories as law (the four meta-narratives), as well as the meaning of the Covenant Chain. 

[104]       Her curriculum vitae[25] and credentials speak for themselves. In 2013, she obtained her Ph.D. from the State University of New York at Buffalo. Her dissertation is titled Teyotsi’tsiahsónhatye: Meaning and Medicine in the Haudenosaunee (Iroquois) Story of Life’s renewal, presented in the Department of Indigenous Studies. She has written fiction and non-fiction publications in different forms and is invited regularly to give presentations relating to the Haudenosaunee culture and stories both in Canada and the United-States.

[105]       The Attorneys General raised a general concern as to the probative value of her evidence. The Court notes that the reasons for that concern changed somewhat between the voir-dire on her qualifications and the final arguments.

[106]       Before the voir-dire, the Attorneys General focused on parts of her testimony relating to history, arguing that she is not an historian and that she even mentioned so herself in her report[26]. At that moment, the Court understood the argument of the Attorneys General to mean that, to testify about what is called history, you need to be an historian, which, in the non-Indigenous academic structure of knowledge, means that the person is trained to do research in archives and to have published material submitted to peer review, among other qualifications.

[107]       In spite of her strong academic qualifications, the Attorneys General seemed to imply that her educational and professional background did not rise to the level required. While not objecting to her testimony and the production of her report, they argued that for that reason her report and testimony lacked probative value.

[108]       In final argument[27], their position shifted to a concern about the probative value of the oral tradition and narratives reported by Dr. Adams, arguing that her expertise is not supported by identified written records or primary sources[28] of the oral tradition and narrative she brought to the Court. For the Attorneys General, the fact that Dr. Adams is presented as an expert and not as an elder, the kind of witness usually presenting the evidence of oral tradition, accentuates the impact of the absence of sources. They argued that, in the absence of those sources, their experts could not respond or verify the evidence presented, which negatively affects the probative value of this evidence.

[109]       Since the argument that Dr. Adams is not an historian was not repeated in final argument, the Court considers that it was abandoned and will not address it. In any event, considering Dr. Adams qualification and the evidence she presented, that argument has no merit.

[110]       On the issue of the absence of primary sources, as a starting point it must be mentioned that Dr. Adams’ report was communicated to all parties on June 4, 2021. On June 18, 2021, a summary was sent to the Court. On August 27, 2021, a copy of Dr. Adams’ PhD dissertation was sent to the parties.

[111]       Dr. Adams was scheduled to start testifying four months later, on Monday, October 18, 2021, and it was only two days before, on Friday, October 15, that the Attorney General of Quebec questioned her qualifications and raised a concern about the probative value of her evidence as an expert. 

[112]       The Attorneys General had more than enough time to raise their concern on this point with the Applicants, who could have reacted, if they deemed it necessary. Throughout the case management hearings and the trial, there was excellent collaboration between the parties, which assured that the hearings would not be delayed by questions of this nature, especially when it related to expert evidence.

[113]       This concern should have been addressed promptly; it should not have been raised at the last minute. It should also be said that Dr. Adams’ report does mention numerous sources, and that many of those are the same as those used by the Attorneys General’s experts.

[114]       In its written argument and final oral pleading, the Attorney General of Quebec raised general comments made by its experts (Profs. Von Gernet and Beaulieu) about what make oral tradition reliable evidence in their respective field of expertise. They questioned the scientific process used by Dr. Adams without identifying the content of the oral tradition or the narratives reported by her that were of concern in terms of probative value.

[115]       Their argument was formulated in terms so general that it makes it impossible for the Court to deal with it in a meaningful manner.

[116]       A trial judge is not a historian nor an anthropologist. Especially in cases such as this one, with voluminous expert evidence and where the essential facts are in large part established through the experts’ reports, it is for the party raising a concern to identify and direct the Court to the specific evidence whose probative value is being challenged. This was not done.

[117]       The fact that oral tradition or narrative may be unreliable in certain circumstances is not enough to discredit all oral tradition and narrative presented in a specific case without substantiating the argument. Even though Prof. Von Gernet testified in general terms about the existence of a methodology to record, examine, and analyze oral history and traditions, the only part of his testimony that touched upon the evidence of Dr. Adams is his statement that he is not aware of claims made among the Mohawk in general that they had a cultural tradition resembling some of the other nations that he has seen, i.e., where there are internal checks and protocols that oral traditions have to go through, or that there is some kind of internal testing process to enhance their reliability[29]. As we will see, this is inexact.

[118]       Furthermore, in cross-examination, the Attorneys General did not take the opportunity to explore those aspects of her testimony.  Moreover, apart from the general comments of their experts, no contradictory evidence was presented.

[119]       The content of Dr. Adams’ evidence is also relevant here.

[120]       Inevitably, Dr. Adams’ evidence is a condensed explanation of complex notions about the Haudenosaunee as a people and as a nation. This is how she presented her contribution to this case:

In writing this report, I’ve tried to present complex, multifaceted subjects — like Haudenosaunee grammar, ceremony, and masterworks of narrative — in terms simple enough (with all due respect to the court and to fellow parties to this action) for a stranger in Haudenosaunee country to understand, but not so oversimplified as to underrepresent the great substance and depth of our culture. My task, as I understand it, is to help the court. This requires to choose a few threads of the last 10,000 years of Haudenosaunee life in this land and braid them into a coherent perspective. There are, of course, worlds more knowledge on the subject that could be offered, some of which I have enough insight to discuss, but most of which I don’t. A single report can’t contain “the” Haudenosaunee perspective, because it can’t be carried in one person’s mind. The sheer scope of the matter would make such a thing impossible, and, even if that weren’t so, Haudenosaunee languages (as we’ll see below) always insist that the person speaking say where they’re speaking from. To the extent that there’s a “the” Haudenosaunee perspective, it’s for the rotiyaneshon (Chiefs) and yotiyaneshon (Clanmothers) to offer, not for me. I can present only “a” Haudenosaunee perspective, which is the one I’ve developed in the place where I’m standing. This perspective is informed by graduate and professional work with primary sources written in English and several Haudenosaunee languages. It’s also informed by work with people. This “work” has rarely meant formal interviews (which, I’ve found, has a chilling effect on spontaneous, friendly communication), but rather conversations, some unfolding over decades with people I’ve come to respect as teachers and love as friends. When citing sources of information in this report, I’ll identify the written documents from which they come, and also the people who’ve confirmed, clarified, and added to these documents in conversation[30].

[121]       In her testimony, she explained the use of the term “narrative” and its place in the Haudenosaunee culture as well as her experience with it. 

[122]       A narrative traditionally means stories told and heard. It has a central place in Haudenosaunee culture. Narrative is where the Haudenosaunee keep their family structure, economy, and law. It is woven into every aspect of culture and is of enormous importance. Some has been put down in writing, but mostly not in their original language.

[123]       The narratives on which Dr. Adams focused on her evidence are the four meta-narratives that have existed for hundreds of years and shaped the Haudenosaunee culture, society, family, and diplomatic relationships. They are: The Creation Story, The Story of the Clan System, The Great Law of Peace, and The Handsome Lake Code. She gave special attention to The Creation Story and The Great Law of Peace since they are more relevant to the present case. This type of evidence differs from the oral tradition that is used to establish a historical fact such as how a first nation was fishing hundreds of years ago.

[124]       She also testified about her personal experience around narratives and why they are more accessible to her. She has an undergraduate degree in literature and writing, which gives her a background in how stories work and what makes them last and how a story might change over time in a culture that passes them on orally.

[125]       For her PhD thesis, she examined one specific story amongst the thousands of traditional ones, and focussed on the Haudenosaunee Story of Creation, an old and long story. She worked from written sources in the Mohawk language, and in the Onondaga language, Onoῆda’gegá’, from the 19th and 20th century. She spoke with elders in their language and asked them to explain certain scenes or words when she did not understand. She used text and knowledge that people shared with her. When she wrote her thesis, she brought her experience as a writer of fiction/non-fiction into how these stories were born.

[126]       The testimony of Dr. Adams is largely on the importance of the Mohawk language, to understand fully and correctly the true meaning of oral tradition and the narratives.

[127]       For Dr. Adams, it is vital to be able to understand the texts in the original written language. She understands the Mohawk language, but it is very complex, and she asked for help to understand archaic words or apparent contradictions. She noted that, although some oral traditions and narratives were put down in writing, it was mostly done in English.

[128]       The one existing written source of those stories in their original language became accessible only recently. It was in the late 1880’s that a Haudenosaunee collector, J.N.B. Hewitt, began to record these narratives as retold by knowledgeable Haudenosaunee story tellers in Haudenosaunee languages.

[129]       Hewitt was raised in Tuscarora, a Haudenosaunee community in upstate New York.

[130]       He worked for the Bureau of American Ethnology in Washington D.C. Between 1888 and his death in 1937 he visited many Haudenosaunee communities and recorded thousands of pages of manuscript in the Haudenosaunee language. For over 60 years, he collected those narratives, interviewing some of the most knowledgeable and respected Haudenosaunee of the era. He collected over 10,000 manuscript pages of narrative, ceremony, vocabulary, and other vital Haudenosaunee cultural information, the great majority of which remains to this day unpublished and untranslated in English or French. Thus, only scholars with a sufficient knowledge of the Mohawk language or another Haudenosaunee language can use most of this unique source of information.

[131]       Hewitt died in 1937 and William N. Fenton assumed his post at the Bureau of American Ethnology in 1939.

[132]       Fenton did not understand Haudenosaunee languages. He exercised a strict control over Hewitt’s records until his death in 2003. So strict was his control that for 66 years no scholars could access Hewitt’s unique work. That situation was corrected after Fenton’s death but, even today, Dr. Adams does not know if the process of scanning Hewitt’s records to make them digitally available is finished. 

[133]       What this means is that this essential material has been accessible only for the last 17 years (excluding pandemic years), and still today, most of it is accessible only to a speaker of the Mohawk language.

[134]       Dr. Adams had access to the parts of Hewitt’s record relating to the four meta- narratives, which encompassed The Creation Story, The Story of the Clan-O’tara system, The Great Law of Peace, and materials related to the Condolence ceremony, as well as to aspects of medicine, vocabulary and other elements.

[135]       She testified that she also obtained information from other people. Access to people having this knowledge is difficult. She did not grow up with Haudenosaunee people because of the early death of her Haudenosaunee father. It was as an adult that she began to try to find her relatives and other people in the community, starting through a small group of people studying the Seneca language in Buffalo when she was a student there. She eventually got to know and earn the confidence of elders and Haudenosaunee speakers.

[136]       She considered Hewitt’s record as an important source of primary material. In 2015, she made a presentation to the Native American Conference on the subject of the differences in the versions of the Creation Story that Hewitt collected, and what they mean, and why it is important that there are differences[31].

[137]       In 2016, she was mandated by the Passamaquoddy Nation in the Maritimes to produce an expert report about their relationship with the Covenant Chain.

[138]       She is also one of the authors, with colleagues from McMaster University, of a yet-to-be-published anthology about the Covenant Chain and the role of the Two-Row Wampum – Tékini Teyohà:te.

[139]       She also explained that her PhD is not specifically in history, but in Indigenous studies, a multi-disciplinary field that includes history, linguistics, ethnography and ecology.

[140]       As for her background in cultural research, she testified that she began acquiring this knowledge through studying research done by others, as most graduate students do. She looked at primary sources and then started talking to more people. In 2009-2010, she had a job that allowed her to drive to Mohawk communities and talk to people running language programs. This allowed her to understand how Haudenosaunee used language to tell stories and conduct ceremonies. It was through talking to people and reading primary sources and looking at scholarship produced in other fields that she acquired her expertise.

[141]       This is the background against which the Attorneys General raised a concern formulated in very general terms.

[142]       The expertise of Dr. Adams might come from different sources and academic traditions than those of Prof. Von Gernet and Beaulieu, but, in a judicial forum, this does not automatically reduce its probative value.

[143]       Dr. Adams explained when and how she acquired her expertise. The content of her testimony demonstrated that she is a well-qualified expert in the field of Haudenosaunee cultural and historical research and narrative.

[144]       The Court finds nothing in the evidence that raises a concern over the probative value of the oral tradition or the narratives she presented.

[145]       In conclusion, considering Dr. Adams’ credentials and expertise, the nature of the oral tradition and the narratives reported, that the testimony of Dr. Adams is confirmed by that of Chief Nelson, that the arguments are so general and without specificity, the Court concludes that the concerns raised by the Attorneys General are unfounded.

D.2  The Mohawk language

D.2.1          The importance of Mohawk language in this case

[146]       The evidence on the Mohawk language is relevant for different reasons.

[147]       First, since the treaty relationship in this case started when the parties first met and were not speaking each other’s language, it is essential to comprehend, to the extent possible, the impact of the Mohawk language on their culture and on their understanding of the world and treaty relationships.

[148]       Secondly, because the parties were usually communicating through interpreters, we thus know that the Mohawk representatives were speaking the Mohawk language at the treaty conferences.  As we will see, the Mohawk language is crucial to the understanding of the various forms of relationships in the community. Therefore, knowledge of the Mohawk language and its social and political role is critical to the determination of the intention and objectives of the Mohawk during this treaty relationship.

[149]       Thirdly, because one of the key issues in this case centers on the Covenant Chain, which is not a written document but nonetheless, is very much part of the treaty relationship between the Mohawk and the British. 

[150]       Finally, because the true meaning of what the Mohawk representatives were saying is central to the analysis of the written documents prepared by the Europeans.  Those documents record the understanding of the writer, necessarily through the filter of the interpreter and, hence, not necessarily what the Mohawk speaker said or meant. This is an additional difficulty in the interpretation of the Treaties.

D.2.2          The Haudenosaunee language structure

[151]       The Mohawk name for the Mohawk language is Kanyen’kéha.

[152]       There are six languages spoken by the nations of the Haudenosaunee Confederacy and they have some of the most complex grammar of all languages spoken in the world[32].

[153]       Today, from a total population of 160,000 Haudenosaunee, approximately 5,000 people speak a Haudenosaunee language with proficiency and, of those, 2,500 are Mohawk. This small number of speakers is the heritage of decades of colonisation and assimilation.

[154]       Haudenosaunee languages are syncretic, meaning that morphemes (unit of meaning) can attach to a root, which in this case is almost always a verb root.  This means that most words are based on actions.

[155]       There is almost always a pronominal prefix attached to these morphemes that describes the relationship between actors. Where English has about 15 pronouns, the Mohawk language has more than 50. To illustrate the complexity, one needs only to consider that there are 18 different transitive pronominal prefixes for the word “they”.

[156]       It is a language that puts relationship first, teaching its speakers to identify with precision who acts upon whom with almost every word they speak[33].

[157]       As an example, Rake’hina is a verb phrase usually translated as the sentence “He is my father”. The pronominal prefix of ra+ke can be broken down further: ra identifies a male actor who is acting upon -ke-, meaning me, i.e., the speaker.

D.2.3          The verb tenses

[158]       In her report, Dr. Adams explained that the Mohawk language has four basic tenses: the present (I go, I am going), the definite (I went), the non-definite (I would go, I may go) and the intentive (I mean to go), describing one’s plans. There is also a fifth verb form, the stative, that describes an action started at some point in the past and continuing in the present (I have gone and I am still going).

[159]       Using the example of the intentive tense, Dr. Adams explained the interaction between the language and the culture in the following way:

Even though the intentive verb, is often translated as “I will”, it really describes only one’s plans. “I intend to go” versus “I will go”, better acknowledges the limits of our own agency in a world filled with beings who think and act for themselves, and our total dependence upon the plans and intentions of the waters, winds, and weathers that determine human action much more than our plans or intentions do[34].

[160]       She also adds that the “humility” of Mohawk grammar is reflected in the way people think, by allowing the speaker to communicate in suggestions and possibilities. In a society physically structured around the longhouse – kanonhsehs, where many families live under the same roof, this mode of communication soothes everyday human interaction[35].

[161]       This humility in the Mohawk language also influenced the diplomatic relations of the Mohawk and the way they practiced diplomacy. Here is what Dr. Adams said:

It also serves as a standard of etiquette and protocol in Council, easing the delicate work of negotiating with people of one’s own and of other nations. Second, it enables hearers to hold multiple, sometimes conflicting, meanings and interpretations in their minds simultaneously. A royaner (Confederacy council Chief), for example, has a personal name given by his o’tara (Clan) as a small child, but also holds a title, such as Tehatkarine, which is also a name that goes back to the founding of Kayanerenhtsherakó:wa (the Great Law or Great Peace). Tehatkarine is supposed to embody all those who have held the title before him; yet we know that the person currently holding that title is also a unique being with his own personal name. He is both one, and everyone who has come before him and will come after him. In the same way, Kanyen’kéha speakers can think about Tékeni Teyohàte (the Two Row wampum) as both an object (a wampum belt, or a design on a tee shirt, or a bumper sticker) symbolising the idea of both distance between brothers and the love, respect, and compassion that continues to bind them to one another. In other words, verb tenses in Kanyen’kéha make room for diplomacy without compromising intellect or integrity[36].

D.2.4          No word for coercion

[162]       One relevant aspect of the Mohawk language is the absence of a word for coercion.

There are no words that can be translated as the English one like “have to”, “made me”, “must”, “shall’ or “shall not”. The nearest equivalent to any of these is the verb phrase Tkakonte, usually translated as “it must be so”, but is closer to “it’s attached to what is”, often describing a natural or biological phenomenon. An absence of compulsion in Haudenosaunee grammar characterises action - in relationships and, so, in law - as the product of one’s choice. To do is to have chosen to do. Since no one’s actions can be forced by another, one’s freedom to act – well, or poorly – can be influenced only through persuasion and example[37].

[163]       This distinctive feature reflects the tolerance of Mohawk society for individual actions, good or bad, and their consequences in the broader relationship. 

D.2.5          A language based on relationships

D.2.5.1          Much more than just biology

[164]       Haudenosaunee languages prioritize relationships and identify all relationships with nature, between individuals and between nations, by words reflecting family relationships.

[165]       Although the notion of family is a generic one, its concept, its structure, and who composed it vary greatly between societies and eras.

[166]       Many Haudenosaunee family terms are prescriptive, naming the actions that represent an expected behaviour within the relationship[38]. This language pattern is also reflected in the relationship between generations, the elder providing protection and guidance and the younger responding with attentiveness and deference. The greater the generation gap, the more pronounced the reciprocal attitude. Generally, the brother-to-brother or sister-to-sister relationship is the default structure for people approximately the same age.

[167]       The Mohawk language also distinguishes between older and younger brothers, not in terms of hierarchy but, rather, in terms of needs, desires, and capacity that change through the course of one’s life. There is no term in Haudonausanee languages for just “my brother”; it is only “my elder brother” – rakhtsi’a, or “my younger brother” – ri’kenha.

[168]       Another example of how descriptive of the action Haudenosaunee languages are is the word rake’hiha. It has been translated as “my father” but literally means “he is lent me”.  This is a reflection of the Haudenosaunee clan structure, where a father is a man lent to one woman’s family by another woman’s family, and whose clan the man retains throughout his lifetime. Through this structure, the primary responsibility of ensuring the safety and good conduct of children rested with their maternal uncles.

[169]       Because family names reflect action and expected behaviour between individuals more than a biological link, family terms are also used to define relationships outside the biological link:

Within the Haudenosaunee o’tara (Clan) system, one may consider the other members of that o’tara as siblings, aunts, uncles, and grandparents, even if they are none of these things in a strictly biological sense. A traveller from another village, or another nation, can seek shelter in the house of the same o’tara and expect hospitality, even if one has never before met the people inside[39].

[170]       People address each other using family names, without the biological link:

Father Joseph-François Lafitau observes in 1724 that “[u]sually, however, the Indians do not willingly hear themselves called by the name given to them and an inquiry as to what that is, is a kind of affront which causes them to blush. In addressing each other, they call each other by names of kinship, brother, sister, uncle, nephew etc. observing exactly the degrees of subordination and all the proper age relationship unless there is a real relationship by blood or adoption.” Thwaites, The Jesuit Relations and Allied Documents, 72. Although Lafitau cannot refrain from seeing “degrees of subordination” where there are none, he does define “real relationship[s]” as resulting from “blood or adoption[40].

D.2.5.2          Adoption

[171]       Adoption occupies a central place in the Haudenosaunee communities. A single person, a group or a whole nation can be adopted, and it is often, but not necessarily, marked by the ceremony of adoption. 

[172]       Ceremonies are a central part of the Haudenosaunee culture. We will come back to this aspect later. For the present, suffice it to say that the adoption ceremony resembles very closely the ceremony of presenting a child born to the clan, or as Dr. Adams said, giving a child born into the clan.

[173]       This is how Dr. Adams described the adoption ceremony:

Held at Anonhwaróri (Midwinter) or Okahseróta (Green Corn, taking place in midsummer), a representative of the adopting family (usually the person’s closest male relative, his maternal uncle) walks the new member up and down the longhouse, arm in arm in the case of an adult, and held in arms in the case of a small child. People without biological siblings, or those who have formed a special bond with a peer, can become siblings or “medicine friends” with that person in a ceremony that resembles those for adoption and naming. All these ceremonies include an agreement between people wishing to become family, an exchange of gifts, and a public acknowledgement of the new form the relationship is taking and the responsibilities each party assumes. Family made through such formal processes are family, to no lesser or greater degree than those born into an o’tara (Clan). The relationship lasts the rest of one’s life, and the secondary bonds created can persist for generations beyond. Informally, without the public acknowledgement of ceremony, sisterhoods, brotherhoods, aunt, uncle, and grandparent relationships are frequently created and sustained between people. This is true even in contemporary Haudenosaunee society, in which maintaining traditional patterns of extended — and extending — family has been made harder by the replacement of kanonhsehs (longhouses) with single-family homes, urbanisation, and the restrictions on free movement through our territory by the Canada-United States border[41].”

D.3  The longhouse – across the fire

[174]       The longhouse – kanonhsehs - is a fundamental feature of the Haudenosaunee culture.

[175]       So important is this feature that it reflects in the name Haudenosaunee. In the Mohawk language, Haudenosaunee is Rotinonhsyón:ni. In English, it is usually translated by “longhouse”, but the exact meaning is more akin to “They have begun building the house and are still building it.”[42]

[176]       Taken from Dr. Adams’ report, here is a description of the longhouse, both architecturally and sociologically.

[177]       Metaphorically, the longhouse represents a “shelter of a house built from east to west across the core of traditional Haudenosaunee homelands”[43].

[178]       This metaphorical longhouse is always in the process of being built. The traditional dome-shaped roof represents the earth, which must be continually taken care of. That links it with The Creation Story and it is also coming up in The Great Law of Peace, from which emerges a complex political system with a comprehensive set of laws that are, as we will see later, both substantive and procedural[44].

[179]       This house is said to have an eastern door, guarded by the Mohawk, the nation at the easternmost of the Haudenosaunee, and a western door, guarded by the Seneca – Onödowa’ga nation – the westernmost of the Haudenosaunee. A central fire, kept by the Onondaga – Onoñda’gegá nation, located at the geographical center of the Haudenosaunee territory, acts as the political capital of this brotherhood of nations[45]. 

[180]       Architecturally, between about 25 and 200 feet long, these houses were usually built on an east-west axis. The roofs were domed with several smoke holes and had two rows of platforms on each side with a central fire or fires between them, as seen from the picture below. 

[181]       This photo (by Michael Chamberlin) of an interior of a longhouse reproduced at Ganondagan State Park near Victor, NY shows the domestic structure of traditional Haudenosaunee daily life. A central line of hearths produces heat and light. Lower platforms were used for sleep and work, upper platforms, for storage. Doors at each end were often protected by a shallow roof, anteroom, or the household’s dogs. Families living across the fire from one another expected to help one another in daily tasks and times of difficulty[46].

[182]       Small groups of family, perhaps a mother, father, and small children, would occupy the platforms on one side of a fire. Depending on the size of the house or village, the family across the fire might be of the same clan as their neighbours opposite, or of a different clan. Regardless, families living across the fire expected to work with and help one another. Gardening, gathering, hunting, cooking, childcare, and other daily activities could be shared, and moments of crisis, such as illness, an accident, or a death would also bring the support of the family across the fire.

[183]       So deeply grounded was this daily reality that it has become a metaphor for many kinds of dualities in Haudenosaunee philosophy: between elder and younger, of course, but also between female and male, earth and sky, day and night, growing season and resting season, and, ultimately, life and death.

[184]       That metaphor expands to include the nations of the Haudenosaunee when The Great Law of Peace came and when the Haudenosaunee formed treaty relationships with other nations. The Haudenosaunee understand these across-the-fire relationships as perpetual, heritable from one generation to the next, and fundamental to their identity. They are never, at least from a traditional perspective, one-time-only transactions[47].

[185]       During the hearing, the metaphor of “bringing an issue across the fire” was used by different witnesses, demonstrating how deeply rooted and important that part of the Mohawk culture is. It also demonstrates how the concept of perpetuity in all kinds of relationships is not just metaphoric, but also a distinctive trait of Mohawk culture. 

[186]       The architecture of the longhouse, where everybody lives together without walls, forged the need to resolve conflict rapidly, efficiently and to everyone’s satisfaction.

[187]       In her report, Dr. Adams explained that families no longer reside in longhouses today. The transition from the longhouse to a single-family dwelling, which still often hosts the extended family, happened in the 1790’s under pressure from the increasing European colonisation of Haudenosaunee territory. Nonetheless, longhouses still exist and are used mostly for ceremonies and other gatherings, political or social. That is a reflection as to the strength of Haudenosaunee society and culture. In the same vein, the reciprocity embedded in the longhouse, a distinctive component of this culture also survived[48].

D.4  The narratives or the oral tradition

D.4.1          The narratives, an overview

[188]       In this case, evidence of the narratives was not presented to establish specific historical facts but, rather, to expose the aspects of the Mohawk culture and society relevant to the understanding and the determination of the intention of the Mohawk during the treaty relationship.

[189]       For Dr. Adams, the narrative tradition, or what may be referred to as the oral tradition in the jurisprudence, is not something said by someone about something. It is composed of thousands of stories, some brief, some self-contained, some of epic length and scope. These stories are meant to be told rather than read and have been recounted for hundreds, if not thousands, of years in Haudenosaunee languages.

[190]       They are traditionally told to gatherings of people, from elders to small children, by one or by a few very knowledgeable narrators. They are also preserved and transmitted in less formal settings, in the past, during the long winter evenings around the fires in the longhouse and, in more recent times, in long car trips or around someone’s kitchen table.

[191]       As Dr. Adams explains, these stories are meant to be told by different narrators, over and over again, and to be heard by as many people as possible and as often as possible in a lifetime.

[192]       Repetition serves three purposes. First, it ensures equitable access to this publicly held information. The same principles illustrated by the same narrative episodes teach core concepts of Haudenosaunee society to everyone.

[193]       Second, it preserves the consensus about the story that is being told. Differences between versions, even between retellings by the same narrator, are appreciated, even relished.  Indeed, they can help the listener separate themes and principles from details, and so serve as a tool of healthy interpretative debate[49].

[194]       In a courtroom environment, where differences between previous versions automatically raise a concern of reliability, it may seem counter-intuitive to cherish differences. But viewed in the broader sense as metaphors and that these stories are mostly important for the principles they teach, the wisdom and efficiency of such a procedure is better appreciated.

[195]       Third, repetition keeps fresh an awareness of agreements made and mutual responsibilities undertaken together – relationships, in a word – in the personal and collective memory of the clan and the Haudenosaunee.

D.4.2          Oral tradition and ceremonies

[196]       Narratives are stories, they do not stand alone. They are part of the broader culture, social organisation and the ceremonies central to the Haudenosaunee way of life; all of which have deep ties to the narratives. Ceremonies reinforce them and keep them accurate and alive in the community[50].

[197]       It would be too long to expand on the Haudenosaunee ceremonies, what they refer to and how and when they are performed, but a few words need to be said in order to understand their importance in the Haudenosaunee culture and the place occupied by some of them during the treaty conferences of the 17th and 18th centuries.

[198]       The annual cycle of ceremonies follows the cycle of nature and the seasons. Winter is a time to thank all parts of Creation. The spring ceremonies celebrate the wakening of nature after a long winter.  The summer ones celebrate the height of the growing season. In the fall, the harvest and the closing for winter ahead are central. They center on specific elements like maple syrup, strawberries, corn, etc. as metaphors for the larger gifts of nature that support the survival of the community.

[199]       These ceremonies are public, held in modern-style community longhouses. People work together to prepare the food shared by everyone. Music, singing, and dances are performed. Their substance is the same each time, each year. They are also the occasion to renew the connections with ancestors, a reminder of the profound dependence with mother Earth and the continues responsibilities to support her. Each ceremony is unique but by its repetition and continuity from year to year they unite people, families, clans and nations. It permits to continue to build and maintain relationships with one another[51].

D.4.3          The meta-Narratives

[200]       Dr. Adams’ evidence focussed on the four meta-narratives that have existed for thousands of years and that have shaped the Haudenosaunee culture and society. These four meta-narratives are:  The Creation story, about the creation of Earth, The Story of the Clans system, The Great Law of Peace - Kayanerenhtsherokó:wa about the relation with other nations and The Code of Handsome Lake about the relation with Christianity[52].

[201]       These meta-narratives are not one-time statements made by an individual and repeated by others. They comply with the Haudenosaunee culture of storytelling and its authentication process.

[202]       The meta-narratives are where the Haudenosaunee keep the family structure, ecology and law. They can touch every aspect of culture possible and are of enormous importance in Haudenosaunee society[53].

[203]       The Court understands that these are not only stories, but that they also relate history, code of conduct and law. Their authenticity and reliability come from a different process than the one that non-Indigenous people may be comfortable with. That does not mean that they are unreliable and have no value in the Canadian judicial process.

[204]       As previously mentioned, there are four meta-narratives.

[205]       These four meta-narratives, which are foundational to the relationships nurtured by the Haudenosaunee, were summarized by Dr. Adams as follows:

In very simple terms, the story of Earth’s creation defines our relationship with yethi’nihstenha tsi yonhwentsyake, our mother the Earth, and how we can and cannot behave in this place if we wish to live in it. The story of how our o’tara (Clans) emerged defines our relationship with an organised society, and how we can and cannot behave with our families if we are to live in the large, stable groups that the bounty of our lands supports. The story of how Kayanerenhtserakó:wa (the Great Law of Peace) was made defines our relationships with one another as nations, and how we can and cannot behave if we wish to maintain a state of skén:nen (usually translated as “peace,” but a term incorporating many levels of well-being) within our own lands and with our neighbours. The story of Karihwí:yo (the Code of Handsome Lake) defines our relationships with Christianity and Christians and how we might and might not choose to adapt to these rapid changes at a time when Europeans and their descendants were using their religion (and the political claims they derived from it) to justify the dispossession and death of many of our people[54].

Each story builds the foundation for the one that comes after it, sequentially and chronologically. Some stories articulate conflicts that aren’t fully solved without telling another story, creating many layers of the oral equivalent of intertextuality. The only story that can be precisely dated is Karihwí:yo, first told by a man holding the royaner’s title of Skanyatarí:yo (translated as “Handsome Lake”) at the very end of the 18th century. The rest can be approximated through ecological details, linguistic archaisms and morphology, and, sometimes, physical setting. Treaty relationships, as they are articulated in sources from the 17th and 18th centuries, emerge directly from the relationship dynamics, conflicts, and resolutions detailed in stories first told centuries, if not millennia, earlier[55].

Our family relationships to one another, told in the story of the Clan system, is the foundation for how we heal conflict within and between nations by reaffirming and making new family, as told in the story of Kayanerenhtsherakó:wa. Once we understand how to build skén:nen between our nations, we can work toward doing so with other nations. Approaches to other nations are explained in Karihwí:yo, as well as treaty relationships, (…)[56]

[206]       Treaty relationships are therefore based on the idea that the parties know how to make the relationship work[57].

D.4.3.1          Written version of the meta-narratives

[207]       Although these stories have been told for hundreds if not thousands of years, only some of them and part of others have been put into writing.

[208]       The earliest written version of the Creation Story was written by Jesuits missionaries in the 1630’s in their Relations des Jésuites de la Nouvelle-France[58].  It was used to show the need for Christian evangelism and the monetary resources to support it. It also demonstrates that this meta-narrative was part of the Haudenosaunee culture a long time before the arrival of the Europeans.

[209]       In the 19th century, very few other versions were put into writing, whether by Haudenosaunee narrators or guided by them. Dr. Adams reported specifically on two versions, but neither was written by a Haudenosaunee writer or in a Haudenosaunee language. They are drafted in an over-simplified manner either in Dutch, French or English, and take no heed of the Haudenosaunee interest[59].

[210]       As previously seen, it was not until the late 1880’s that J.N.B. Hewitt, a Haudenosaunee himself, started collecting the stories in Haudenosaunee languages and writing them down in their original language.

D.5  Haudenosaunee law 

D.5.1          The meta-narratives are the law

[211]       The Indigenous law[60] of the Haudenosaunee- tsi niyonkwarihò:ten is found in the meta-narratives. They are the pillars of Haudenosaunee law.

[212]       Tsi niyonkwarihòten means “the way of our business” [61] or “our ways of addressing matters”[62], that can refer to the aspects of Haudenosaunee culture, such as speech, protocol, ceremony, and law.

[213]       As Dr. Adams stated, the meta-narratives “dramatize the relationships our languages identify, explaining and illustrating the ways in which these relationships work, or fail to work, for our survival all together, in this place”[63].

[214]       As a code of conduct, the meta-narratives articulate the goals of Haudenosaunee society, such as to live sustainably on this planet (The Creation Story) or to maintain peace with other nations (The Great Law of Peace). They are both substantive, for example, agreeing that everyone has the right to use resources necessary for survival, and procedural, by establishing a decision-making process based on consensus and determining what consensus is and how exactly people can work to reach it. 

[215]       The meta-narratives are also consistent, details may change but the principles remain constant. One story reiterates, reinforces, and elaborates upon those that came before it or that are concurrent with it. No story unmakes or voids another.

[216]       They are made accessible to everyone by being repeated throughout a person’s life, both through retellings and through the ceremonies, songs, natural phenomena, personal names, humour, and other allusions that weave the daily cultural texture of Haudenosaunee society, what they call onkwehonwenéha, our way of doing things. Thus, everyone can understand what behaviour is expected of them and why, and what the consequences of their transgressions might be[64].

[217]       A valid objective, an identified conduct and the consequences of not respecting it, are all universal components of laws regulating relationships.

[218]       The meta-narratives are more than laws. In Haudenosaunee, the word tsi niyonkwarihò:ten is the closest one to law. It touches upon spirituality, art and science.

[219]       As seen previously, Haudenosaunee languages have no word for coercion, such as “must”, “have to”, “shall not”.  As a result, Haudenosaunee law is not based on punitive consequences for unacceptable behaviour but, rather, is oriented toward finding the best possible action. 

[220]       Haudenosaunee law, like Haudenosaunee leadership, is based on persuasion, on example, and on appeals to shared ethics. Important among these is the principle of ka’nikonhriyo’tshera’t, a lifelong cultivation of intellect, character, knowledge, compassion, and generosity. It is because the Haudenosaunee investment in ka’nikonhriyo’tshera’t is so fundamental, combined with personal freedom, choice, and responsibility for actions resulting from that choice, that the legal system’s entire orientation does not need to focus on enforcing consequences for harmful action. It can emphasize a duty to work for the greatest good possible in a given situation[65]. In other words, Haudenosaunee law is not predicated on the question: “How much bad behaviour can I get away with before the legal system stops me?” but, rather, “What are my responsibilities in working for the greatest good?”[66].

D.5.2          The four essential legal principles

[221]       Haudenosaunee law can be described as yorihowaneh, the Haudenosaunee Circle of Law, a structure far from being static.

[222]       There are four essentials principles that are in constant interaction.

[223]       The three first principles are skén:nen (peace), ka’shatstenhsera (power) and ka’nikonhriyo’tshera’t (good faith).

[224]       Skén:nen is often translated simply as “peace” but it unifies not only the absence of conflict but also the physical health, emotional wellness, social cohesion, ecological balance, and spiritual fulfilment of a multidimensional synchronous thriving. Skén:nen describes the whole-existence vibration. The best English equivalent might be “harmony.”

[225]       Ka’shatstenhsera, the second principle, is often translated as “power” or “strength.” It includes both capacity of body, mind, or spirit, and ruggedness, toughness, and durability. It can also describe strictness and rigidity, and habits of demand, brutality, and violence. These positive and negative connotations demonstrate the distrust running through Haudenosaunee philosophy regarding power or capacity, at least when it is not balanced by any other force. This distrust appears in many Haudenosaunee narratives[67].

[226]       A Haudenosaunee legal system with skén:nen as its object cannot function with a minimally-acceptable standard of behaviour as its baseline. It requires everyone’s good-faith effort to develop and use ka’nikonhriyo’tshera’t, the third principle[68].

[227]       At the center of this interaction is the force, kentèn:ron (compassion, friendship), which is the fourth principle. It represents the emotional response to another human being that prompts a practical response to that human being’s needs. It involves compassion, kindness and gentleness. Consideration for others’ needs and feelings is upheld and rewarded.

[228]       If we imagine the three principles of Haudenosaunee law as they are presented in the Great Law of Peace as forming a circle in perpetual motion, kentèn:ron (compassion, friendship) is the centripetal force pulling them all toward the middle, and keeping any one of them from spinning away under the external forces of conflict.  

[229]       Dr. Adams in her report presents a good illustration of the synergy of these principles[69]:

Circle of Law, MNCC-1, p. 35

[230]       Like many Haudenosaunee words, kentèn:ron differs from its English translations at its verb root. The phrase -itenhr- describes an action, something one does to help someone else. “Pity” and “compassion,” its most common English translations, describe a feeling one has for someone else, but do not indicate whether or not that feeling is ever acted upon, or whether that action relieves the other person’s suffering.

[231]       Like the other Mohawk language family terms, this fourth principle describes the fundamental act that creates and sustains an emotional bond. We hold, we carry, we lend, we care for, we love — this is living Haudenosaunee law[70].

[232]       This, of course, is but a brief overview of Haudenosaunee law, but they are the core principles that are relevant to this case.

D.5.3          The Great Law of Peace, Kayanerenhtsherokó:wa

[233]       Since these principles of the Haudenosaunee law system are found in the meta-narratives, it means that they were regulating Haudenosaunee society long before the arrival of the Europeans and that it was the system the Haudenosaunee knew when they engaged in treaty relationships with the Dutch, the French and the British. 

[234]       Again, the Haudenosaunee language reveals a lot about their perspective on treaty relationships. According to Dr. Adams, many speakers of Haudenosaunee languages, when asked the word for “treaty,” will say that the nearest equivalent is orì:wa. Usually defined as a matter of business undertaken by a group of people, orì:wa can refer to an agreement, an issue to be decided, an ongoing project, such as a marriage, or, in the vocabulary of the Canadian legal system, a law or treaty[71]. 

[235]       Orì:wa, or treaty, whether between the nations of the Haudenosaunee, between the Haudenosaunee and other Indigenous nations or between the Haudenosaunee and European nations, derives from Haudenosaunee law, which, as discussed, is carried in Haudenosaunee meta-narratives[72].

[236]       The Great Law of Peace is the meta-narrative at the heart of any treaty relationship involving the Haudenosaunee. Consequently, understanding its origin, its meaning and its importance for the Haudenosaunee is essential for anyone who must determine the intention of the parties between 1664 and 1760. This said, it is impossible to fully understand The Great Law of Peace in the context of this judgment.

[237]       The Great Law of Peace is complex and rich in its many levels of symbolism[73]. It is also structurally and culturally different from non-Indigenous law.

[238]       The Haudenosaunee still have an oral tradition. Contrary to the procedure under Canadian law, there is no legislative process for a governmental or political entity to adopt stories as law, and there is no official publisher. Narratives, like The Great Law of Peace, are told publicly, and the collective memory plays a role that can be compared to that of an official publisher in Canadian law.

[239]       That is why the Court must look to a number of sources or witnesses to obtain the evidence needed for understanding it. These sources need not be jurists or juridical, provided that the Court considers them to have sufficient knowledge of The Great Law of Peace to educate and help it to understand the concept.  In this case, Dr. Adams and Chief Curtis Nelson were two such sources.

D.5.3.1          Overview of The Great Law of Peace

[240]       The Great Law of Peace, describes the process of bringing the five Iroquoian nations out of an intractable war and the slow construction of finding peace, skén:nen, at all levels, whether personal, familial or national. It embodies both a process and a permanent goal[74].

[241]       Even though what is important here is to focus on the meaning and principles of The Great Law of Peace, it worth saying a few words about the story itself.

[242]       As previously mentioned, the Great Law of Peace is a complex story with many parts, far too long and intricate to deal with at length in this judgment.

[243]       During her testimony, Dr. Adams gave the following short version of it, one that starts after The Creation Story:

By the time we get to the beginning of the story of Kayanerenhtsherakó:wa, the Great Law, there are many more people. They’re living in much more complex and larger groups. And the beginning of the story starts in what is usually called “the Dark Time”, and it’s this period — nobody knows exactly when it starts. It's something that happens well before Europeans arrive in North America, but nobody has a precise date. There have been different guesses about it. But what’s important is there’s a long period of major, profound conflict. There’s murder between different clans between different nations, between different families. There’s fear. There’s, I think what it would be fair to call, terrorism. There’s torture. There’s even, possibly, cannibalism; it’s referred to in the story. But this is a horribly destabilized, unsafe, destructive — not just destructive to these communities’ people but also pretty destructive to the ecology, to the environment. People are not treating earth very well, and it’s affecting their ability to survive. And so into this apparently endless horrible cycle steps a person usually referred to as “the Peacemaker”. He has a name, but we don’t use it outside certain ceremonial contexts. This young man, this very man, who’s living removed from this conflict has an idea about how to begin to resolve it. So there — and again, this is a very long story. There are multiple episodes, multiple characters. This young man begins one person at a time to bring this message of peace, saying, “Listen, it’s not inevitable that people live this way. Here’s how we can begin to shape a system for resolving conflict that’s already happening and for avoiding or attenuating conflict that hasn’t happened yet.” And over the course of 40 or 50 years, a couple of generations, this is exactly what is created. And the culmination of the story is saying, “All right, we’re going to have this group of 50 roiá:ner, these 50 chiefs, that are going to be chosen by their families and put up by their yakoyaner, or their Clan mothers, but they’re going to have a very explicit, specific set of things that they’re responsible for. They’re going to have designated helpers, and those helpers will have a role. There will be a way to remove them office. There will be a way to run council so that there is no conflict, or at least there’s minimal conflict, and we’ll be able to have a political — a legal system that’s building on our clan system, that’s building on our ecological system, that will sustain peace, skén:nen, which is a slightly, again, different meaning in Kanien'kehá. But this whole system of establishing leaders, maintaining peace, reiterating relationships, using ceremony, is something that is extended almost whole cloth into treaty relationships that the Haudenosaunee developed with Europeans when they first encounter them[75].

[244]       There is a special part in The Great Law of Peace where the five nations bind their arms together in brotherhood, creating a treaty relationship.  This part carries the name of Haudenosaunee and the core of the name invokes the earlier Creation Story, reminding that this orì:wa (matter, business, treaty relationship) is built on those that came before it and that it remains in force[76].

[245]       One of the objectives of the process put in place by the Great Law of Peace is to resolve conflict to everyone’s satisfaction. It adopts the process of first seeking agreement on relatively easy matters, thereby building a momentum of success and trust before addressing more difficult matters[77].

[246]       Another principle is that everyone has the responsibility to use the resources of the earth carefully. The spoon is the symbol of that responsibility and of the commitment to share food peacefully, equitably, and sustainably[78].

[247]       That brings us to the metaphor of The Great Law of Peace itself, represented by the great tree of peace, usually a white pine, with roots growing in the four cardinal directions. This symbolizes the principle that any nation finding these white roots of peace could follow them back to the tree, under which they could shelter if they so chose.

[248]       Trees are important symbols in the metaphoric culture of the Haudenosaunee, starting with the Peacemaker who uproots a great tree so that everyone can throw their weapons into the hole it left behind. Sometimes chiefs are also referred too as trees.

[249]       At the end of the story, the Peacemaker declares that this law of peace is not just for the Haudenosaunee, but that it is open to anyone who wants to embrace it[79].

D.5.3.2          Conclusions about The Great Law of Peace

[250]       The Great Law of Peace is part of the Haudenosaunee and Mohawk culture long before the arrival of the Europeans. It incorporates family relationships not only as a model, but also as a political and a diplomatic system. Because in the Mohawk language, the words used to describe a family relationship, is a description of the responsibility of each person in the relationship, those words were also applied in the treaty relationship.

[251]       When the British arrived and entered into a relationship with the Haudenosaunee, The Great Law of Peace already formed the central part of their legal and diplomatic system. As we will see later, the evidence shows that this system was used both with the French and the British[80].

[252]       For the Haudenosaunee, the principles of relationships between individuals, as well as between Haudenosaunee nations and Indigenous and non-Indigenous nations, are still today the governing law principles that apply to those relationships.

[253]       The Haudenosaunee system of governance comprised of 50 hereditary chiefs designated by the clan mothers and installed by the Great Law of Peace continues to this day. This shows how deeply entrenched the precepts of the Great Law of Peace are in Haudenosaunee culture and society.

D.6  Treaty relationship and the language of family

[254]       For the Haudenosaunee, treaty relationships, like any other relationship, are governed by the Haudenosaunee family relationship and its language[81].

[255]       As already seen, words describing family members refer to more than just the position of one person toward the other.  They also explain the responsibilities that the position in the “family” carries and the nature of the relationship, i.e., the responsibilities of one person towards another.  “My child” means “I hold you”; “my father” is understood as “he is lent to me”; and “brother” evokes a relationship of reciprocity that acknowledges that different people have different needs and capacities, while remaining equals[82]. This permits the expansion of family ties into other relationship, like the one between treaty partners.

[256]       This evidence is important in the analysis of the treaty relationship between the Mohawk and the British.

[257]       The objective of The Great Law of Peace is to maintain sustainable relationships of skén:nen, peace. This objective is and has always been a long-term one, intended for perpetuity.  It applies to all relationship, including with non-Indigenous nations.

[258]       Most of the primary sources about treaty conferences, all written in English, used the term “Brethren”, the old English word for brother, indistinctly for a Mohawk or a British speaker. It is important to be aware that, for the Haudenosaunee speaker, this word was more than just a greeting term.

[259]       Chief Nelson testified about the importance of the use of the family terms in the treaty relationship with the Europeans:

I remember being told that when one of the European parties arrived here we’re going to hold each other up as family. And they said, “We will be the fathers and you will be our sons.” And our leadership back then thought about that and said, “You know, that’s really nice. We thank you for that opportunity. However, we know that a father can punish his son or his children, and we don’t operate that way. We believe that it’s best that we be brothers of equal standing, as equals so that none of us can punish each other in any way, shape or form[83].

[260]       In her report, Dr. Adams made reference to such a situation where at Albany, on September 18, 1688, Governor Edmond Andros of New England greeted the delegation of Haudenosaunee speakers with the term “children”. On the second day of council, he was corrected and reminded that they are brothers, and not children:

The Maquase Sachems who spoke formerly with you are dead, and we have not so much knowledge as they had. Nevertheless, although they are buried, yet let the old Covenant that was made with our Ancestors be kept firm. Then we were called Brethren, and that was also well kept; therefore let that of Brethren continue without alteration[84].

D.7  The Covenant Chain, its language, its symbolism

D.7.1          The meaning of the word Tehontatenentshonteronhtáhkwa

[261]       Dr. Adams explained that Tehontatenentshonteronhtáhkwa is not really a word, it is a phrase that can be broken into several parts:

• Te, the prefix, describes something doubled, dual or done together;
• Hontate, the pronominal prefix, describes a group of people doing something to or with itself, or for one another;
• Nentsh, the root, refers to an arm, or specifically the forearm;
• Onte, the propositional infix, describes something attached to the end of something else;
• Ronhtahkwa, the ending, indicate that the action was undertaken sometime in the past, and continues into the present moment.

[262]       Together, they might be translated as: “They (males) together have attached the ends of one another’s arms at some point in the past and continue to do so now”[85].

[263]       For Dr. Adams, the term Covenant Chain in English and Tehontatenentshonteronhtáhkwa in Mohawk are not too far apart:

The meaning of this verb phrase in Kanyen’kéha (the Mohawk language) lies some distance from the English phrase “Covenant Chain.” Covenant, meaning a solemn agreement or mutual promise, carried a specific dimension of meaning in the seventeenth and eighteenth centuries C.E., when it was first used regarding the Haudenosaunee. The word appears frequently in the King James Bible (1611), often referring to binding mutual promises between humanity and God; its widening distribution throughout England and rising literacy rates put covenant into more common usage. Chain, the word for interlocking closed loops, usually of metal, describes a European technology not in use by the Haudenosaunee at the time of European arrival in North America. The figurative meaning of chain as a series of related ideas or events comes close to the Haudenosaunee construction of law as an ordered, layered matrix of interlocking relationships. Covenants, too, in the sense of agreements or mutual, reciprocal commitments upheld over time, approaches Haudenosaunee definitions (linguistic, narrative, legal, etc.) of relationships. Thus, the spirit of the translation “Covenant Chain” doesn’t grossly differ from Tehontatenentshonteronhtáhkwa, but some specific instructions about how the relationship works are missing from the English version[86].

(References omitted)

D.7.2          The metaphors of the Covenant Chain

[264]       In addition to the meaning of the word Tehontatenentshonteronhtáhkwa, there are numerous metaphors that come from the Covenant Chain.

[265]       There are the arms linked together and the rope that tied the vessel of the newcomers to the bushes that became a silver chain attaching it to the mountain in the heart of Haudenosaunee territory.

[266]       Those metaphors reflect the evolution of the relationship. The stronger the relationship became, the stronger the metaphor of the link.

D.7.2.1          Arms linked together

[267]       We shall begin with the arms linked together, because they are part of the name Tehontatenentshonteronhtáhkwa.

[268]       Dr. Adams said that the metaphor originated in The Creation Story, which speaks of the process of extending a family not only by birth but also by a wilful decision to include a person as part of the same family.

[269]       Then it comes back in The Great Law of Peace, where the Peacekeepers and other leaders build another layer of brotherhood by crafting a political structure of fifty Chiefs – rotiyaneshon. The chiefs become brothers, each gripping the others’ arms so tightly that not even a falling tree can separate them[87].

[270]       In the Haudenosaunee culture, arms linked together are meant to be unbreakable. The fact that this concept is included in the name Tehontatenentshonteronhtáhkwa is an indication that the Haudenosaunee considered this alliance unbreakable.

[271]       The image of holding arms is also reflected physically in certain ceremonies, such as the naming of a child or the adoption of a child or of an adult as seen previously[88].

D.7.2.2          From the rope attached to the bushes to the silver chain attached to the mountain

[272]       The metaphor of the European vessel tied to the mountain in the heart of Haudenosaunee territory in Onondaga represents the evolution over decades of the relationship between the Europeans and the Haudenosaunee to an unbreakable connection of friendship and alliance.

[273]       In 1694, Sadakanahtie, an Onondaga speaker addressing Governor Fletcher of the colonies of New York and Maryland, referred to the relationship with the Crown by recounting that, from a bark rope attached to bushes, they are now attached together by an iron chain fastened to a great mountain at the center of the Haudenosaunee territory[89].

[274]       Fifty years later, in 1744, Canesatego, addressing the governor of Maryland, reminded him that the Dutch had entered into the Iroquois League and Covenant with the Haudenosaunee and that, when the English replaced the Dutch, they also wanted to be part of the League. This is when the iron chain was replaced by a silver one to reinforce the relationship[90].

[275]       In 1755, Sir William Johnson, Superintendent General of Indian Affairs of the British Crown, in an address to the Haudenosaunee referred again to the evolution of the relationship through its symbolism, starting with the first handshake when the British arrived and progressing to the securing of that handshake by a rope, then by an iron chain and, afterwards, by a silver chain fixed to the immoveable mountain. He also referred to the need to keep the chain shining through almost annual meetings held in public, a procedure that kept the chain unbroken, avoiding any spilling in anger of one drop of each other’s blood[91].

[276]       Dr. Adams recalled that the Haudenosaunee did not mine or work silver. But once it was included in the trade with the Europeans, they quickly adopted it. Silver is also charged with symbolism. It attracts light and it appears white, the color of peace, compassion and friendship in the wampum design. It is also associated with the long daylight of the growing season and the physical and spiritual protection for the one wearing it[92].

[277]       What is important to understand from this symbolism is that it makes the relationship much stronger and more precious and reinforces the notion of a permanent character. Moreover, it was used by both parties.