Mohawk Council of Kahnawake seeks to intervene in case

The Mohawk Council of Kahnawake (MCK) and three other entities are seeking to intervene in the government’s appeal of a landmark Superior Court decision that granted a permanent stay of proceedings to Kahnawa’kehró:non Derek White and Hunter Montour three years ago.

“Since I won everybody’s going to be backing me up now, hopefully,” said White, who was present last Thursday as a Court of Appeal of Quebec judge heard the requests to intervene from the MCK, Kitigan Zibi Anishinabeg, Association of Iroquois and Allied Indians, and Grand River Enterprises Six Nations Ltd.

The MCK came prepared with a strong argument to get involved, White believes. The Court of Appeal will rule at a later date on whether some or all of the requests to intervene will be granted.

“It’s not about me. It kind of is, but it isn’t. It’s for everyone. It’s not just Kahnawake. It’s every Native person in Canada,” said White.

“It’s a really big deal, but I don’t think people really understand how big this is.”

Although he feels like the government is squeezing him financially with the appeal – his lawyer bills haven’t stopped, he said – he is undeterred.

“I’m going to fight it right till the end,” said White.

The charges against White and Montour stemmed from the government’s contention that the pair had violated the 2001 Excise Act by bringing in large quantities of tobacco from the United States without paying taxes. However, after guilty verdicts were handed down by a jury, Superior Court judge Sophie Bourque agreed with the defence’s motion casting the Excise Act as an infringement of constitutionally guaranteed Aboriginal and treaty rights.

White and Montour’s lawyers had invoked 10 treaties negotiated between the Haudenosaunee and the British between 1664 and 1760, and the overarching “meta-treaty” known as the Covenant Chain.

Bourque’s judgment, issued in 2023 after 18 months of deliberations, has been lauded as a precedent-setting milestone for the recognition of Indigenous rights in Canadian courts.

It was almost immediately appealed by the crown, however, a process that is still ongoing.

“It’s a lengthy judgment. She made a lot of findings that I think should withstand appellate scrutiny,” said Vinceny Carney, one of the lawyers on the defence legal team along with Nathan Richard, James O’Reilly, and Laurence Prud’homme.

The judgment made some of the treaties the oldest ones recognized by any court anywhere in Canada.

“There’s a rich historical record there for the judge to deal with. Our job is to have that trial judgment affirmed by the Court of Appeal,” Carney said.

At stake is not only the legal fate of White and Montour, who respectively faced up to 14 and five years’ imprisonment, but Bourque’s finding that the Covenant Chain is still in force as an unextinct treaty, as well as a new, more expansive test she applied to determine the existence of an Aboriginal right.

“The trial judgment concerns constitutional rights and in particular treaty rights that affect different nations. Obviously, it’s not just the Mohawks of Kahnawake or the Mohawk Nation or Haudenosaunee, but it seems pretty clear that the Convenant Chain is a broader treaty implicating many other First Nations,” he said.

The test Bourque proposed was used in place of the Van der Peet test established by the Supreme Court 30 years ago, which only recognizes practices predating European contact as being protected as Aboriginal rights under Section 35(1) of the Canadian Constitution.

“It’s not often that a trial judge can depart from the principle of stare decisis and Supreme Court precedents,” said Carney.

Bourque determined in her judgment that a new test was necessary.

“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,” she wrote in her 2023 judgment.

While the Mohawk Nation Council of Chiefs (MNCC) participated as an intervenor in the Superior Court case, the MCK’s participation in the appeal would enable Council’s lawyers to speak to the importance of the judgment to Kahnawake.

Carney noted the particular significance of Kahnawake to the historical record, and MCK grand chief Cody Diabo said it was time for Council to step in.

“We know it’s a nation discussion. It’s not for the MCK alone, it’s not the MCK’s rights, but there are now some things with this decision that we are able to insert ourselves in,” said MCK grand chief Cody Diabo.

“For us, we want to make sure that whatever was decided, what the decision was with Justice Bourke, that that doesn’t get undone.”

He said the MCK was particularly motivated by the decision’s connection to the United Nations Declaration on the Rights of Indigenous Peoples and by Bourke’s application of a new test to replace the Van der Peet test, which he described as archaic.

“It was a win for everyone,” said White of the Superior Court victory; he expects the case to reach the Supreme Court of Canada, regardless of the outcome of the appeal.

According to Carney, the Court of Appeal is expected to hear the appeal around spring 2027.

marcus@easterndoor.com

Marcus Bankuti, Local Journalism Initiative Reporter

Copyright 2026, The Eastern Door. All rights reserved.

Marcus Bankuti, Local Journalism Initiative Reporter, The Eastern Door.