Supreme Court of Canada –  1 S.C.R. 911
This was a test case of the Akwesasne Mohawks’ right to carry goods across the border between Canada and the United States without having to pay customs duties because of an aboriginal right to trade on this axis. The Court unanimously rejected this possibility, guided in part by considerations of sovereignty and foreign relations.
Do the Akwesasne Mohawks hold an aboriginal right which exempts them from paying customs duties on US merchandise brought into Canada? If so, what is the nature of this right?
The aboriginal right was not established. Mitchell must pay duties on the merchandise brought into Canada (unanimous decision – some concurring).
Between: the Crown of Canada (Minister of National Revenue)
And: Grand Chief Michael Mitchell, also known as Kanentakeron
Interveners: Quebec, New Brunswick, Manitoba, British Columbia, the Mohawk Council of Kahnawake, the Assembly of First Nations and the Union of New Brunswick Indians
Michael Mitchell (Kanentakeron) is the Grand Chief of Akwesasne. The Mohawks’ reserve extends across the provinces of Quebec and Ontario and the State of New York. The Band is also part of the Iroquois Confederacy (Haudenosaunee).
In 1988, Mitchell crossed the border at the Cornwall International Bridge, bringing into Canada goods bought on the American part of the reserve to be given to another tribe and to be resold within his community. He told the customs officer he was exempt from paying customs duty since he held Aboriginal and treaty rights to trade across international borders. The customs agents let him into Canada but informed him that he would nevertheless be charged duty on the said goods.
In 1989, Mitchell was served with a Notice of Ascertained Forfeiture in the amount of $361.64 for unpaid duty, taxes and penalties.
Mitchell: Trading across the border was an integral practice in the Mohawks’ culture at the time of the Europeans’ arrival. Therefore, it should be considered as an Aboriginal right that is protected under section 35 (1) of the Constitution Act, 1982.
The Minister of National Revenue: The traditional range of the Mohawks’ commerce did not include Canada and at the time of the first contact with Europeans, they were familiar with the concept of customs and their payment when an individual crossed an international border.
Federal Court, Trial Division (1997): The Mohawks possessed an Aboriginal right to trade across international borders without being required to pay customs duties on merchandise used for personal or community purposes.
Federal Court of Appeal (1999): Despite the existence of an Aboriginal right to trade, it is limited by the “traditional range” of the Mohawk commerce, which was not done on a north/south axis.
McLachlin, Gonthier, Iacobucci, Major, Binnie, Arbour, LeBel
The claim concerned the right to bring goods across the US/Canada border (here, the St. Lawrence River) for trading activities and for personal use.
The Van der Peet test was then used to determine whether the activity falls under the protection of section 35 (1) of the Constitution Act, 1982.
Binnie and Major partially agreed with the majority on the evidence regarding the trading activities north of the St. Lawrence River, but they argued that other factors tilted the balance in favour of the appeal. They maintained that giving section 35 (1) an interpretation that would freeze Aboriginal rights is incompatible with the section’s purpose. It should not diminish the Mohawks’ capacity to engage in economic and community building objectives.
However, such limitations are not fatal to these objectives. Also, control over the mobility of goods and people across the border is an attribute of Canadian sovereignty. Since the Aboriginal right claimed by the Akwesasne Mohawks would hinder this sovereignty, the Court cannot recognize it.
As for the use of historical evidence in this case, both the majority and the minority justices expressed the concern that the Akwesasne Mohawks could use this potential Aboriginal right to resell the goods to non-Aboriginal people and consequently evade customs regulations (Imai, 2006: 160). Some authors deduced that the Court was heavily influenced by these practical consequences for cross-border commerce in assessing this Aboriginal right claim (Imai, 2003: 324). Hence, there was a need to develop another approach to resolving disputes concerning Aboriginal rights, such as negotiations. The Aboriginal group could self-limit the scope of their claim in order to address some of the Crown’s concerns (Ibid: 326).
In 2001, Grand Chief Mitchell also petitioned the Inter-American Commission on Human Rights where he alleged a violation of his “right to culture,” protected by the American Declaration, by the Canadian state, since it charged him customs for the goods he brought back from the US side of the Akwesasne reserve and the courts refused to recognize the Mohawks’ Aboriginal right to trade across the border duty-free, even though the Mohawks feel that this practice is an integral part of their culture. He also refers to international instruments which recognizes cross-border contact between Aboriginal nations, such as the draft version of the U.N. Declaration on the Rights of Indigenous Peoples.
In 2003, the Commission declared itself competent to examine the issue and considered that there was a prima facie (at first sight) infringement by the Canadian state of Mitchell’s “right to culture”, but needed further analysis of its specific content (Grand Chief Michael Mitchell, also known as Kanentakeron, 2004).
According to some authors, such as James A. O’Reilly, the Mitchell case did not close the door to aboriginal sovereignty (O’Reilly, 2009). ON the contrary, even if it opposes Canadian and Aboriginal sovereignty in terms of foreign affairs, it recognizes that aboriginal sovereignty could have survived in common law.
Francis v. The Queen,  S.C.R. 618
Delgamuukw v. British Columbia,  3 S.C.R. 1010
R. v. Van der Peet,  2 S.C.R. 507
R. v. Pamajewon,  2 S.C.R. 821
Grand Chief Michael Mitchell, also known as Kanentakeron; Report on admissibility No. 74/03; Petition No. 790/01,  C.N.L.R. 117 (Inter-American Court of Human Rights).
Imai Shin. 2003. Creating Disincentives to Negotiate: Mitchell v. M.N.R.’s Potential Effect on Dispute Resolution, Windsor Yearbook of Access to Justice 22: 309-327.
Imai Shin. 2006. The Adjudication of Historical Evidence: A Comment and an Elaboration on a Proposal by Justice LeBel, University of New Brunswick Law Journal 55: 146-171.
O’Reilly, James A. 2009. « Aboriginal Self-Government », Aboriginal Law since Delgamuukw, Maria Morellato (dir.). Canada Law Book : Aurora, p. 373-392.