Federal Court Decisions

     T-434-90

     IN THE MATTER OF an Appeal pursuant to section 135

     of the Customs Act, S.C. 1986, c. 1 and

     IN THE MATTER OF an Action for declaratory relief

BETWEEN:

     GRAND CHIEF MICHAEL MITCHELL,

     also known as KANANTAKERON

     Plaintiff

     - AND -

     THE MINISTER OF NATIONAL REVENUE

     Defendant

     REASONS FOR JUDGMENT

McKEOWN J.

INDEX

INTRODUCTION      page 2

PLAINTIFF'S REMEDIES SOUGHT      page 3

EVENTS GIVING RISE TO THIS CASE      page 5

ABORIGINAL RIGHT      page 10

WHAT IS THE NATURE OF THE RIGHT BEING CLAIMED?      page 13

WHO IS ENTITLED TO THE ABORIGINAL RIGHT?      page 16

DATE OF FIRST CONTACT      page 19

THE IROQUOIS CONFEDERACY      page 22

TERRITORY TRAVELLED OVER, USED AND CONTROLLED

BY THE MOHAWKS      page 26

TRADE IN PRE-CONTACT AND CONTACT TIMES      page 34

EARLY MOHAWK TREATIES      page 41

COMMERCIALLY MOTIVATED WARFARE      page 44

MONTREAL-ALBANY TRADE      page 49

SUMMARY OF FINDINGS ON ABORIGINAL RIGHT      page 57

TREATY RIGHTS      page 61

TREATY OF UTRECHT 1713      page 63

JAY TREATY 1794 AND COUNCILS      page 65

TREATY OF GHENT 1814 AND COUNCILS      page 79

ANALYSIS OF TREATIES AND COUNCILS      page 89

RELATIONSHIP BETWEEN ABORIGINAL RIGHT AND

TREATY RIGHTS      page 98

DOES THE PLAINTIFF HAVE AN "EXISTING" ABORIGINAL RIGHT

WITHIN THE MEANING OF SUBECTION 35(1) OF

THE CONSTITUTION?      page 100

DOES THE CUSTOMS ACT INFRINGE THE ABORIGINAL

RIGHT?      page 103

DECLARATIONS      page 104

INTRODUCTION

     Grand Chief Michael Mitchell (hereinafter called Chief Mitchell or the plaintiff), a Mohawk, descendant of the Mohawk nation located in the Mohawk Valley, arrived at the Canada - United States border at Cornwall on March 22, 1988, and sought to bring into Canada certain goods which he described as personal and community goods. He asserted the right not to pay duties or taxes on those goods and also the right to trade freely across the border with other First Nations.

     The primary issues are whether the plaintiff and, more generally, the Mohawks of Akwesasne resident in Canada have an aboriginal right to bring personal and community goods across the border, duty and tax free. There is also an issue as to whether the plaintiff and the Mohawks of Akwesasne have the right to trade freely across the border with other First Nations, and if they do have such a right, what is the content of the right? Finally, do the plaintiff and the Mohawks of Akwesasne resident in Canada have treaty rights to trade across the border with other First Nations and to bring personal and community goods into Canada without paying duties or taxes?

PLAINTIFF'S REMEDIES SOUGHT

     The plaintiff seeks:

a)      a declaration that the plaintiff as a Mohawk of Akwesasne resident in Canada has an existing aboriginal right which is constitutionally protected by sections 35 and 52 of the Constitution Act, 1982 to pass and repass freely across what is now the Canada - United States boundary including the right to bring goods into Canada for personal and community use, including for trade with other First Nations, without having to pay any duty or taxes whatsoever to any Canadian Government or authority;

(b)      a declaration that Article XV of the Treaty of Utrecht 1713, Article 3 of the Jay Treaty 1794 and Article IX of the Treaty of Ghent 1814 are recognized in law in Canada as being valid and subsisting treaty provisions;

(c)      a declaration that the treaty provisions set out in (b) result in existing treaty rights within the meaning of section 35 of the Constitution Act, 1982;

(d)      a declaration that the mutual undertakings by the Crown's representatives and the Indian nations, including the Mohawks, proved in the present proceedings, notably those of 1791, 1795, 1796 and 1815, constitute valid and subsisting treaty provisions and resulted in existing treaty rights, within the meaning of section 35 of the Constitution Act, 1982;

(e)      a declaration that the plaintiff as a Mohawk of Akwesasne resident in Canada is a beneficiary under the Jay Treaty and the other written and oral treaties proved in the present proceedings and consequently has existing treaty rights as stipulated in the said treaties which are constitutionally protected by sections 35 and 52 of the Constitution Act, 1982 and which include the right to pass and repass freely across what is now the Canada - United States boundary including the right to bring goods into Canada for personal and community use, including for trade with other First Nations, without having to pay any duty or taxes whatsoever to any Canadian Government or authority;

(f)      a declaration that the undertakings by the Crown and the duties on the Crown under Article XV of the Treaty of Utrecht, Article 3 of the Jay Treaty and Article IX of the Treaty of Ghent as well as the treaty undertakings made at the conferences of 1791, 1795, 1796 and 1815 engage defendant's fiduciary and constitutional duty not to interfere with plaintiff's treaty and aboriginal rights including defendant's positive constitutional duty to protect those rights and ensure the free exercise of the said rights of the plaintiff as a Mohawk of Akwesasne residing in Canada to pass and repass freely across what is now the Canada - United States boundary including the right to bring goods into Canada for personal and community use, including the right to trade with other First Nations, without having to pay any duty or taxes whatsoever to any Canadian Government or authority;

(g)      a declaration that insofar as any provisions of the Customs Act are inconsistent with the rights protected by and duties flowing from sections 35 and 52 of the Constitution Act, 1982, they are, to that extent, of no force or effect; and

(h)      an order allowing this appeal and quashing the decision of the defendant dated November 23, 1989, whereby the defendant demanded payment by the plaintiff of the amount of $361.64.

THE EVENTS GIVING RISE TO THIS CASE

     For the purposes of this case, the defendant recognizes that the plaintiff, Chief Mitchell, is a Mohawk of Akwesasne resident in Canada and is a descendant of the polity known as the Mohawk Nation in the Mohawk Valley which was part of the Iroquois Confederacy before the arrival of the Europeans. Chief Mitchell is seeking the above declarations as a result of the failure of the Mohawks of Akwesasne and the Canadian Government to negotiate recognition of the right to cross the border with goods duty free. The Government of Canada told the Mohawks of Akwesasne that in light of such court decisions as Francis v. The Queen, [1956] S.C.R. 618, and Regina v. Vincent (1993), 12 O.R. (3d) 427 (C.A.); leave to appeal to the Supreme Court of Canada refused [1993] 3 S.C.R. ix, the Mohawks would have to pursue the issue in a court of law.

     Chief Mitchell conferred with other Mohawk Chiefs and their elders and the women in the community of Akwesasne regarding what items should be brought into Canada to test the aboriginal border crossing rights. Following those discussions, Chief Mitchell, accompanied by a number of his fellow community members, entered Canada from New York State at the Cornwall International Bridge on March 22, 1988. When he was stopped by the customs officials, he notified them quite openly that he had the following goods in his vehicle: one washing machine, 10 blankets, 20 bibles, various articles of used clothing, one case of lubricating motor oil, 10 loaves of bread, two pounds of butter, four gallons of whole milk, six bags of cookies and 12 cans of soup. With the exception of the motor oil, all of the goods were destined for the Mohawk territory of Tyendinaga in Canada. The motor oil was destined for Jock's Store in the portion of the Mohawk territory of Akwesasne on the Canadian side of the border. The store is located just a few hundred yards from the Canadian customs check point.

     Customs officials charged Chief Mitchell duty in the amount of $361.64. Chief Mitchell refused to pay the duty claiming aboriginal and treaty rights under the Constitution. Chief Mitchell and other community members took the goods to Tyendinaga and presented them to the community. There was a ceremonial dinner at Tyendinaga, the gifts were passed and it was indicated that this was to be the start of a renewal of trade ties with Tyendinaga. The goods were given as a gift to Tyendinaga, reflecting customary practice. Tyendinaga is a Mohawk territory and is the birth place of the Peacemaker. When a trade agreement is reached with the First Nations, gifts are exchanged to seal the agreement. The giving of gifts to Tyendinaga signified a renewed commitment to trade.

     At the ceremony at Tyendinaga Chief Hill who was Chief at Tyendinaga for twenty years, was later declared an Honourary Chief and is now an elder for the reserve, presented Chief Mitchell with Eagle Feathers because he had provided the community with goods that it needed. Religious goods and the blankets brought by Chief Mitchell were given to the Bible College and the food was eaten by the community. Chief Hill also stated that, in the past, the people from Tyendinaga had traditionally traded with people from Akwesasne. Goods traded included food stuff, fish, lacrosse sticks, snow shoes, crafts, pottery, baskets, medicines and roots. Chief Mitchell stated that the trading relationship goes back a hundred years before the birth of Chief Mitchell's grandfather, which would be close to the time of the founding of Akwesasne.

     The women who decided what goods would be brought across the border interpreted personal goods as being food products and household appliances. The rest of the food and personal items were for trade. As stated earlier, the motor oil was destined for Jock's Store. Chief Mitchell testified that ninety-nine percent of the clientele at Jock's Store are from the community of Akwesasne. The store sells groceries, household items, food products, and anything else that the community desires. It is regarded as an institution by the residents on Cornwall Island. Customs officers go in the store occasionally for small items. However, anyone coming from Canada to the store must pay a toll of $2.50 each way; non-Akwesasne residents rarely pay the toll to shop at Jock's Store. Chief Mitchell described the most expensive item in Jock's Store as a pair of work gloves. Chief Mitchell further testified that the goods supplied in the store are for the community of Akwesasne. If community members were unable to get the goods they needed at the store because of sales to a non-native, the store owner would have to answer to the community.

     In this case, the plaintiff argues two separate and distinct, but mutually confirming sources of his right: an aboriginal right and treaty rights. In R. v. Sparrow, [1990] 1 S.C.R. 1075 Dickson C.J. and La Forest J., writing for a unanimous Court, outlined the framework for examining claims under subsection 35(1) of the Constitution. First, a court must determine whether an applicant has demonstrated that he or she was acting pursuant to an aboriginal right. Second, a court must determine whether that right has been extinguished. Third, a court must determine whether that right has been infringed. Finally, a court must determine whether the infringement is justified. Section 35(1) of the Constitution Act, 1982 states:

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are herby recognized and affirmed.

     The Supreme Court of Canada has outlined a number of interpretative principles that guide section 35(1) cases. In Sparrow, supra, the Court stated at 1106:

The approach to be taken with respect to interpreting the meaning of s. 35(1) is derived from general principles of constitutional interpretation, principles relating to aboriginal rights, and the purposes behind the constitutional provision itself.

...

The nature of s. 35(1) itself suggests that it be construed in a purposive way. When the purposes of the affirmation of aboriginal rights are considered, it is clear that a generous, liberal interpretation of the words in the constitutional provision is demanded.

     The Supreme Court of Canada has identified the link between the legal relationship of the Crown to aboriginal peoples and an appropriate and principled way to analyze and interpret the effect of section 35(1). That link is established through the fiduciary character of the Crown relationship with aboriginal peoples and the resulting duties that flow from that relationship. InVan der Peet, supra, Lamer C.J. wrote at paragraph 24:

This interpretive principle, articulated first in the context of treaty rights -- Simon v. The Queen, [1985] 2 S.C.R. 387, at p. 402; Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 36; R. v. Horseman, [1990] 1 S.C.R. 901, at p. 907; R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1066 -- arises from the nature of the relationship between the Crown and aboriginal peoples. The Crown has a fiduciary obligation to aboriginal peoples with the result that in dealings between the government and aboriginals the honour of the Crown is at stake. Because of this fiduciary relationship, and its implication of the honour of the Crown, treaties, s. 35(1), and other statutory and constitutional provisions protecting the interests of aboriginal peoples, must be given a generous and liberal interpretation: R. v. George, [1966] S.C.R. 267, at p. 279. This general principle must inform the Court's analysis of the purposes underlying s. 36(1), and of that provision's definition and scope. The fiduciary relationship of the Crown and aboriginal peoples also means that where there is any doubt or ambiguity with regards to what falls within the scope and definition of s. 35(1), such doubt or ambiguity must be resolved in favour of aboriginal peoples.

     The principles articulated above will guide my analysis in the present case. I will review first, the evidence and law with respect to the aboriginal right claimed, second, the evidence and law with respect to the treaty rights claimed, third, the interrelationship between the claims to an aboriginal right and treaty rights and finally, very briefly, the evidence and the law in relation to extinguishment, infringement and justification.

     Before I review the evidence, I will outline the witnesses who testified during the trial. The plaintiff called the following witnesses: Chief Michael Mitchell, the plaintiff, Elder Ernest Benedict, Chief Earl Hill, an Honourary Chief and Elder at Tyendinaga, John Mohawk, a Seneca from Cattaraugus territory in New York, Grand Chief Russell Roundpoint, the current Grand Chief of the Mohawk Council of Akwesasne and Harold Tarbell, a former Tribal Chief on the St. Regis Mohawk Tribal Council.

     The plaintiff called three expert witnesses. Dr. Robert Venables was qualified as a cultural historian with particular expertise on the history of the Iroquois Confederacy, colonial frontier history and the history of Indian European contact and relations during the colonial period and the era of the American Revolution, with special emphasis on the 17th and 18th centuries. Professor Charles Johnston was qualified as a historian, with particular expertise on the Six Nations Iroquois of Grand River, British colonial history, and the British/Indian relations in the period 1780 through the War of 1812 and the Treaty of Ghent. Joan Holmes was qualified as a research consultant and analyst with expertise in the field of aboriginal claims and Crown First Nation relations during the latter half of the 17th century and 18th, 19th and 20th centuries as revealed through Treaty Council minutes and other archival documentation including archival documentation on federal policies, legislation and practices regarding Indian claims generally and border-crossing and transportation practices of Indians in particular.

     The defendant called two witnesses, both qualified as experts. Dr. Alexander von Gernet was qualified as an archaeologist and ethnohistorian, specializing in the prehistory and history of Iroquoians and Algonquins and the study of the contact between aboriginal peoples and Europeans in Northeastern North America and in the theories and methods used to reconstruct the past from material remains, documentary records and oral narratives. Mr. Donald Graves was qualified as a historian with particular expertise in diplomatic and military aspects of the colonial period of Canadian history, between 1700 and 1815.

ABORIGINAL RIGHT

     R. v. Van der Peet, [1996] 2 S.C.R. 507 outlines the test for identifying aboriginal rights. An aboriginal right must be derived from a pre-contact activity that was an element of a practice, custom or tradition integral to the aboriginal claimant's distinctive culture. Lamer C.J., writing for the majority, beginning at paragraph 49, outlined a number of factors that must be considered in applying the "integral to a distinctive culture" test. It is useful to outline these factors before I review the evidence in relation to them.

     Lamer C.J. explained that in assessing aboriginal claims, courts must take into account the perspective of aboriginal peoples themselves. One of the fundamental purposes of subsection 35(1) is to reconcile the assertion of Crown sovereignty with the constitutional recognition that distinctive aboriginal societies existed before that assertion. Courts adjudicating aboriginal rights claims must, therefore, be sensitive to the aboriginal perspective, but they must also be aware that aboriginal rights exist within the general legal system of Canada. Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims. The court must not undervalue the evidence presented by aboriginal claimants simply because it does not conform precisely with the evidentiary standards that would be applied in other cases. This means that contrary to the submissions of the defendant, I am not compelled to support the opinions of its experts because their opinions are supported by documentation while in some instances the oral testimonies and the opinions of the plaintiff's experts are not.

     Courts must identify precisely the nature of the claim being made in determining whether an aboriginal claimant has demonstrated the existence of an aboriginal right. The correct characterization of the claim is important because whether or not the evidence supports the claim will depend, in significant part, on what, exactly, that evidence is being called to support. To characterize the claim correctly, the court should consider the nature of the action which the applicant claimed was done pursuant to an aboriginal right, the nature of the government regulation, statute or action being impugned, and the tradition, custom or practice being relied upon to establish the right.

     In order to be integral, a practice, custom or tradition must be of central significance to the aboriginal society in question. The claimant must prove more than the existence of the practice. The practice had to be a central and significant part of the society's distinctive culture. It must be something that truly made the society what it was. The court cannot look at the aspects of aboriginal society that are true to every human society and the right being claimed cannot be a practice that is incidental to the society in question. Subsection 35(1) is meant to reconcile pre-existing aboriginal societies with the assertion of Crown sovereignty over Canada. The practical way to ask the question is to ask whether, without this practice, tradition or custom, would the culture in question be fundamentally altered?

     The practices, customs and traditions which constitute aboriginal rights are those which have continuity with the traditions, customs and practices that were integral to the aboriginal society prior to contact. The time period that a court must consider when determining whether the right claimed meets the standard of being integral to the community is the period prior to contact with the Europeans. This does not mean that the aboriginal group must meet the impossible task of producing conclusive evidence from pre-contact times about the traditions in their community. The evidence may relate to aboriginal practices post-contact. The evidence simply needs to be directed at demonstrating which aspects of the aboriginal community have the origins pre-contact. Therefore, where an aboriginal community can demonstrate that a particular practice is integral to its distinctive culture today, and that this practice, custom or tradition has continuity with the practices of pre-contact times, that community will have demonstrated that the practice, custom or tradition is an aboriginal right for the purposes of subsection 35(1). The Supreme Court noted that trial judges should have flexibility regarding the establishment of continuity. The group may have stopped the practice for a period of time, and then resumed. The chain does not have to be an unbroken chain of continuity between current practices and those that existed prior to contact.

     Claims to aboriginal rights must be adjudicated on a specific rather than a general basis. The existence of an aboriginal right will depend entirely on the traditions, customs or practices of the particular aboriginal community claiming the right. Aboriginal rights are not general or universal; their scope and existence must be determined on a case by case basis.

     For a practice, tradition or custom to constitute an aboriginal right it must be of independent significance to the aboriginal culture in which it exists. Incidental practices, customs and traditions cannot qualify as aboriginal rights. Where two customs exist, but one is merely incidental to the other, the custom which is integral to the aboriginal community in question will qualify as an aboriginal right. The incidental practice will not qualify.

     The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice, custom or tradition be distinct. A tradition that is distinct is one that is unique while a tradition that is distinctive is one that is distinguishing. It is a claim that this tradition makes the culture what it is, not that the tradition is different from the practices of another culture.

     The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence. If the practice existed pre-contact, the fact that the practice continued and adapted is not relevant to the determination. On the other hand, where the practice arose solely in response to European influences then the practice does not meet the standard for recognition as an aboriginal right.

     Courts must take into account both the relationship of aboriginal peoples to the land and the distinctive societies and cultures of aboriginal peoples. Aboriginal rights arise from the prior occupation of land, and also from the prior social organization and distinctive cultures of the peoples on that land. Courts must not focus entirely on the relationship of aboriginal peoples with the land. They must also look at the practices, customs and traditions arising from the claimant's distinctive culture and society.

WHAT IS THE NATURE OF THE RIGHT BEING CLAIMED?

     The first stage of the "distinctive to a culture" test outlined in Van der Peet requires me to identify the precise nature of the right being claimed by the plaintiff.

     Lamer C.J. noted at paragraph 52 of Van der Peet, supra, that the characterization of the nature of the claim must be taken with some caution. The activities must be considered at a general rather than a specific level and they may be the exercise, in a modern form, of a practice, tradition or custom. The plaintiff has characterized his claim as an aboriginal right to bring personal and community goods across the Canada - United States border, duty and tax free, and the right to trade those goods with other First Nations. The plaintiff does not claim any right to bring across the border any form of firearm, restricted or prohibited drug, alcohol, plants or the like, nor do the facts in this case raise the issue of importation into Canada of commercial goods for the primary purpose of competing in Canada's commercial mainstream. Furthermore, the plaintiff recognizes that the Mohawks of Akwesasne, resident in Canada, will continue to be subject to search and declaration procedures at Canada Customs.

     This case presents particular problems at the characterization stage. Although the plaintiff does not claim a right to trade goods brought across the Canada - United States boundary in the commercial mainstream in Canada, he does claim a right to trade those goods with other First Nations. The question remains whether or not the claim of a right to trade with other First Nations is to be characterized as a right to trade on a commercial scale or as a right to trade for money and other goods. The plaintiff recognizes that defining the right in terms of "personal and community goods" implies a limitation as to the type and quantity of goods. This distinction between community goods and commercial goods was recognized by the Supreme Court of Canada in R. v. Gladstone, [1996] 2 S.C.R. 723 at paragraph 57 where Lamer C.J. stated:

Two points of variation are of particular significance. First, the right recognized and affirmed in this case -- to sell herring spawn on kelp commercially -- differs significantly from the right recognized and affirmed in Sparrow -- the right to fish for food, social and ceremonial purposes. That difference lies in the fact that the right at issue in Sparrow has an inherent limitation which the right recognized and affirmed in this appeal lacks. The food, social and ceremonial needs for fish of any given band of aboriginal people are internally limited -- at a certain point the band will have sufficient fish to meet these needs. The commercial sale of the herring spawn on kelp, on the other hand, has no such internal limitation; the only limits on the Heiltsuk's need for herring spawn on kelp for commercial sale are the external constraints of the demand of the market and the availability of the resource ...

     Lamer C.J. in Van der Peet, supra characterized the claim to an aboriginal right not as a claim for the right to fish commercially but rather simply as a claim for the right to exchange fish for money or other goods. The right was characterized in this way because the transaction engaged therein by Mrs. Van der Peet, the sale of 10 salmon for $50, could only be characterized as commercial in the broadest sense of the word. Further, the regulation under which she was charged prohibited all sale or trade of fish caught under the authority of an Indian food fish licence, regardless of the extent or nature of the transaction.

     In R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672, at paragraph 20, Lamer C.J. stated that:

The claim to an aboriginal right to exchange fish commercially places a more onerous burden on the appellant than a claim to an aboriginal right to exchange fish for money or other goods: to support the latter claim the appellant needs only to show that exchange of fish for money or other goods was integral to the distinctive cultures of the Sheshaht and Opetchesaht, while to support the former claim the appellant needs to demonstrate that the exchange of fish for money or other goods, on a scale best characterized as commercial, was an integral part of the distinctive cultures of the Sheshaht and Opetchesaht peoples.

     In Gladstone, supra the majority reviewed the findings of the trial judge and found that the extent and scope of the trading activities of the Heiltsuk supported the claim that they have an aboriginal right to sell herring spawn on kelp to an extent best described as commercial. At paragraph 28, the majority stated:

... Moreover, while to describe this activity as "commercial" prior to contact would be inaccurate given the link between the notion of commerce and the introduction of European culture, the extent and scope of the trading activities of the Heiltsuk support the claim that, for the purposes of s. 35(1) analysis, the Heiltsuk have demonstrated an aboriginal right to sell herring spawn on kelp to an extent best described as commercial ...

     The findings that led the majority to describe the activity as "commercial" were that a number of large canoes laden with boxes and hampers filled with dried herring spawn were used for trade. In addition, herring spawn was only found in certain areas. Since some native groups had access to much more than they needed and other groups had little or no access, there was extensive trade in spawn.

     In the case before me, Chief Mitchell refused to pay customs taxes on the goods he brought over the Canada - U.S. border on March 22, 1988. All of the goods were meant as a gift for another First Nation community while one item was destined for resale at a community store in Akwesasne. The amount of goods brought into Canada by Chief Mitchell, like in Van der Peet, cannot be characterized as "commercial". The quantity of goods demonstrates that the right claimed is best characterized as an exchange of goods for money and other goods. There is also an inherent geographical limitation on the goods, given that they must come into Canada from the United States.

     Chief Mitchell's claim as a Mohawk of Akwesasne resident in Canada is best characterized as a right to pass and repass freely across what is now the Canada - United States boundary with goods for personal and community use. The claim is also to bring these goods across the Canada - United States boundary for small, non-commercial scale trade with other First Nations.

WHO IS ENTITLED TO THE ABORIGINAL RIGHT?

     In determining this matter I must keep in mind that the plaintiff is seeking relief in his capacity as a Mohawk of Akwesasne resident in Canada. This is important because the law states that these issues should be decided on a case by case basis on the facts pertinent to the particular First Nation and its territory. As Dickson J. stated in Kruger v. The Queen, [1978] 1 S.C.R. 104 at 109:

... Claims to aboriginal title are woven with history, legend, politics and moral obligations. If the claim of any Band in respect of any particular land is to be decided as a justiciable issue and not a political issue, it should be so considered on the facts pertinent to that Band and to that land, and not on any global basis ...

     Lamer C.J. reiterated this point in Gladstone v. The Queen, supra at paragraph 65 where he stated:

... The rights recognized and affirmed by s. 35(1) are not rights held uniformly by all aboriginal peoples in Canada; the nature and existence of aboriginal rights vary in accordance with the variety of aboriginal cultures and traditions which exist in this country ...

     The plaintiff's Mohawk name is Kanantakeron. He is a member of the Wolf Clan and is distinguished from others by his Mohawk name and his clan membership. He presently lives on Cornwall Island in the territory of Akwesasne. He spent much of his youth on St. Regis Island, living with his grandparents. Chief Mitchell's grandfather was a faithkeeper in the Longhouse and chose him to learn the teachings of the Longhouse and the culture and history of the Mohawks. As a faithkeeper in the Longhouse, Chief Mitchell's grandfather exposed him to the teachings and histories of his people. Chief Mitchell has attended almost every ceremony and political meeting that has taken place in his lifetime. Chief Mitchell is a faithkeeper and has held the lifetime position for 25 years. Faithkeepers are responsible for conducting ceremonies. They work with the clan mothers and the chiefs to explain to the people the traditions and the conduct of the ceremonies.

     Chief Mitchell is also an elected leader. He was District Chief for St. Regis from 1982 to 1984. From 1984 to 1994, he served as Grand Chief of the Mohawk Council of Akwesasne. In February 1996, he was again elected District Chief for St. Regis.

     The Crown has conceded that the plaintiff is a member of the Mohawks of Akwesasne and is a descendant of the polity known as the Mohawk Nation whose members used and occupied the Mohawk Valley at the time of first contact with the Europeans. This concession is important because as the Supreme Court of Canada held in R. v. Van der Peet, supra at paragraph 32:

[t]he purpose of s. 35(1) lies in its recognition of the prior occupation of North America by aboriginal peoples is suggested by the French version of the text. For the English "existing aboriginal and treaty rights" the French text reads "Les droits existants -- ancestraux ou issus de traités". The term "ancestral", which Le Petit Robert dictionary defines as "[q]ui a appartenu aux ancêtres, qu'on tient des ancêtres", suggests that the rights recognized and affirmed by s. 35(1) must be temporally rooted in the historical presence -- the ancestry -- of aboriginal peoples in North America.

     The Crown, however, does not concede that the Mohawk Valley Mohawks used or occupied the Akwesasne area for anything other than raiding other First Nations or for war parties pre-contact or at the time of contact.

     Chief Mitchell testified that his ancestors used and occupied areas of the Mohawk Valley and the upper St. Lawrence at the time of first contact with the Europeans. Dr. Venables, an expert for the plaintiff, confirmed that the Mohawks who live at Akwesasne are a part of the Mohawk nation both culturally and biologically. Chief Mitchell's first language is Mohawk, his family is Mohawk and he is a member of the Mohawk Council of Akwesasne. He is registered as a member of the Mohawks of Akwesasne under the Indian Act, R.S.C. 1985, c. I-5. He grew up in the tradition of the Iroquois Longhouse.

     In R. v. Adams, [1996] 3 S.C.R. 101, Mr. Adams claimed rights in the vicinity of Akwesasne on the basis of the traditional activities of his ancestors, the Mohawks. Chief Mitchell is claiming an aboriginal right derived from the history, the prior social organization and the distinctive culture of his Mohawk ancestors.

     A great deal of evidence was led at trial to show that other aboriginal peoples at certain times in history were adopted and/or taken prisoner and became absorbed into the Mohawk people. The effect of this absorption was to assimilate them and make them Mohawk. The first permanent settlement was established at Akwesasne some time between 1747 and 1755. This community was established by Mohawks primarily from Caughnawaga/Kahnawake as well as various other Mohawks. Sources referred to by Dr. von Gernet, expert for the defendant, indicate that some Mohawks from the Mohawk Valley in New York established themselves at Akwesasne.

     While there is evidence of a prominent church role, particularly Catholic, in Akwesasne, historically this does not displace the essence of traditional Mohawk culture. Chief Mitchell testified that many of the church functions at Akwesasne incorporated traditional aspects of Iroquois rituals and culture in order to gain acceptance among the Mohawks. Harold Tarbell, a former Tribal Chief of the St. Regis Tribal Council, testified that the Catholic church in Akwesasne has incorporated important symbols and ceremonies from traditional Iroquois culture. As Dr. Venables stated:

... very quickly the Mohawk nation dominated the settlement area. They also converted to christianity but they continued their language and they continued some of the important symbols from the confederacy.

     Dr. von Gernet took the position that Akwesasne was a different polity from the Mohawk nation but in light of the defendant counsel's concession during argument, I will not review his testimony in this regard. I conclude that the plaintiff and the Mohawks of Akwesasne resident in Canada are entitled to claim the right based on the activity of their ancestors who lived in the Mohawk Valley prior to the arrival of the Europeans.

DATE OF FIRST CONTACT

     The Supreme Court of Canada established that the relevant time frame for determining the existence of activities or traditions that form the basis for existing aboriginal rights is "prior to the arrival of the Europeans". For example, Lamer C.J. at paragraphs 43 and 61 of Van der Peet, supra stated:

The Canadian, American and Australian jurisprudence thus supports the basic proposition put forward at the beginning of this section: the aboriginal rights recognized and affirmed by s. 35(1) are best understood as, first, the means by which the Constitution recognizes the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive aboriginal societies, and second, as the means by which that prior occupation is reconciled with the assertion of Crown sovereignty over Canadian territory. The content of aboriginal rights must be directed at fulfilling both of these purposes; the next section of the judgment, as well as that which follows it, will attempt to accomplish this task.

...

... It is not the fact that aboriginal societies existed prior to Crown sovereignty that is relevant; it is the fact that they existed prior to the arrival of Europeans in North America. As such, the relevant time period is the period prior to the arrival of Europeans, not the period prior to the assertion of sovereignty by the Crown.

     The Supreme Court of Canada recognized the inherent difficulty in determining the existence of pre-contact activities since it acknowledged in Van der Peet, at paragraph 62 "the next to impossible task of producing conclusive evidence from pre-contact time". In recognition of this difficulty, Lamer C.J. made it clear that courts must be flexible in their consideration of pre-contact activities. At paragraph 62 of Van der Peet, supra he stated:

That this is the relevant time should not suggest, however, that the aboriginal group claiming the right must accomplish the next to impossible task of producing conclusive evidence from pre-contact times about the practices, customs and traditions of their community. It would be entirely contrary to the spirit and intent of s. 35(1) to define aboriginal rights in such a fashion so as to preclude in practice any successful claim for the existence of such a right. The evidence relied upon by the applicant and the courts may relate to aboriginal practices, customs and traditions post-contact; it simply needs to be directed at demonstrating which aspects of the aboriginal community and society have their origins pre-contact. It is those practices, customs and traditions that can be rooted in the pre-contact societies of the aboriginal community in question that will constitute aboriginal rights.

     Lamer C.J. further stated in Van der Peet at paragraph 68 that:

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.

     The Supreme Court of Canada then specifically applied this aspect of the Van der Peet test in Adams with respect to Mohawk rights at Akwesasne. Lamer C.J. stated at paragraph 46:

This conclusion is sufficient to satisfy the Van der Peet test. The arrival of Samuel de Champlain in 1603, and the consequent establishment of effective control by the French over what would become New France, is the time which can most accurately be identified as "contact" for the purposes of the Van der Peet test. The evidence presented clearly demonstrates that from that time fishing for food in the fishing area was a significant part of the Mohawks life. Further, where there is evidence that at the point of contact a practice was a significant part of a group's culture (in this case fishing for food in the fishing area) then the aboriginal group will have demonstrated that the practice was a significant part of the aboriginal group's culture prior to contact. No aboriginal group will ever be able to provide conclusive evidence of what took place prior to contact (and here the witnesses agree that it is unclear which aboriginal peoples were fishing in the fishing area prior to 1603); evidence that at contact a custom was a significant part of their distinctive culture should be sufficient to demonstrate that prior to contact that custom was also a significant part of their distinctive culture. The appellant here has clearly demonstrated that at the time of contact fishing in the St. Lawrence and Lake St. Francis for food was a significant part of the life of the Mohawks. This is sufficient to demonstrate that it was so prior to contact.

     In this case, three different dates have been suggested for the date of first contact relevant for the Mohawks: 1535, 1609 and 1634. Dr. Venables suggested that 1535 was the appropriate date because he concentrated on the meeting between the St. Lawrence Iroquoians and Jacques Cartier. However, the plaintiff's case is based primarily on the routes of the Mohawks of Akwesasne in the Mohawk Valley in New York State. In 1609, the Mohawks first encountered Europeans in a battle which took place on Lake Champlain. This was a hostile encounter but it appears to provide sufficient contact to meet the test of the Supreme Court of Canada with respect to the date of first contact, i.e. the arrival of Europeans in an area where Chief Mitchell's ancestors travelled. The first evidence of Europeans coming into a Mohawk village and actually visiting with them is in 1634 when the Dutch surgeon Harmen van den Bogaert travelled to the Mohawk villages. From a Mohawk point of view, this is the date of first contact because war is not an acceptable form of contact.

     I find the date of first contact as 1609, in keeping with the Supreme Court of Canada approach. In Adams it was 1603, but the Supreme Court of Canada examined the period from 1603 to the 1650s in order to assess the evidence of the aboriginals' right to fish. Accordingly, in my view I should examine the evidence concerned up to 1650, bearing in mind the date of first contact as 1609, which was confirmed by the plaintiff's expert, to determine whether the Mohawks of Akwesasne have an aboriginal right to bring personal and community goods across the Canada - United States border duty free and to trade with other First Nations during that period.

     I will now examine the evidence relating to the Mohawks' social organization and culture and the Mohawks' relationship to the territory in what is now known as Akwesasne.

THE IROQUOIS CONFEDERACY

     The Mohawk nation is one of the founding members of the Iroquois Confederacy which is also known as the Haudenosaunee or the People of the Longhouse. Most of the plaintiff's and defendant's witnesses agree that the Iroquois Confederacy was formed around 1450. John Mohawk, a Seneca scholar from Cattaraugus territory in western New York, described, through oral history, the formation of the Iroquois Confederacy. I accept his evidence on this issue.

     The Confederacy was formed out of social chaos. Nations and villages were at war. An individual known as the Peacemaker came forth and travelled through the nations with a message that violence could be replaced with thinking if the nations came together and organized around the Great Law of Peace. The Peacemaker went first to the Mohawk nation and it embraced the idea. From there, he moved through the Oneida, the Onondaga, the Cayuga and the Seneca Nations. Over time, the Peacemaker was able to construct a large following. There were two people who did not accept the idea. One was an Onondaga chief named Tadadaho and the other was a Seneca chief named Gonyogai. The Peacemaker persuaded Gonyogai and the Senecas to join. They could not get Tadadaho to join so they went to a woman named Jo-kohnsaseh and asked her to help. Her plan was to offer the chairmanship of the council to Tadadaho and he eventually agreed. The Confederacy was formed with the five founding nations -Mohawk, Oneida, Onondaga, Cayuga and Seneca and was known as the Five Nations, that is until the Tuscarora joined in the 1720s. The Confederacy was then known as the Six Nations. I note that even after the 1720's, the Six Nations is often referred to as the Five Nations in the documentary evidence. The Six Nations operate under a national council fire that burns in the Confederacy's capital.

     The Mohawk nation also has a council fire which burned at Onondaga until it was moved to Akwesasne in 1888, when that territory became the capital of the Mohawk nation. Chief Mitchell testified that the Mohawk nation includes Akwesasne, Kahnawake, Kanesatake and Whata. In my view, this is strong evidence that the Akwesasne Mohawks remained an important community of the Iroquois Confederacy. Dr. von Gernet testified that the only reason the Mohawk nation fire was moved to Akwesasne in 1888 was so that the Confederacy based at Onondaga could have Mohawks, resident on the American side of the border, to validate treaties made with the United States. At page 182 of his report, Dr. von Gernet writes:

In April of 1988 a general council of the New York counterpart of the Six Nations passed a resolution providing for the adoption of Akwesasne as the successor of the Mohawk nation in the American Iroquois Confederacy. This was a convenient artifice motivated by the belief that having representation from all six nations was necessary in order to validate treaties the Confederacy had made with the United States. Since the Mohawks had moved from New York to Grand River and Tyendinaga over a century earlier (Section 5.4.3. supra), Akwesasne was the only community on the American side of the border with "Mohawk" inhabitants.

     The defendant also argued that between the period immediately following the American Revolution, when a large portion of Mohawks moved to Grand River, the American version of the Confederacy did not have a Mohawk component to it and, therefore, did not have a Mohawk nation council fire. It was only in 1888, for the reasons stated above, that the Mohawks of Akwesasne, Kahnawake, Kanesatake and Whata were recognized as members. Chief Mitchell testified that the Mohawk nation council fire was never extinguished. It was kept at the Onondaga capital from the period after the American Revolution until 1888.

     In my view, even if the validation of treaties with the United States was one of the motivations for moving the Mohawk nation council fire to Akwesasne, this motivation does not diminish the importance of Akwesasne as an Iroquois community, nor does it diminish the evidence of continuous ties between these Mohawk members of the Confederacy to their people who remained in the South.

     The Great Law provides that the Confederacy Council be composed of 50 titled chiefs who are chosen by clan mothers and put in their position through a condolence ceremony. These chiefs are known as sachems and they preside over the Confederacy in times of peace. In times of war, the Confederacy's council fire is covered over and the chiefs do not reconvene until the hostilities are over. There was no evidence led with respect to any interaction between the war chiefs and the sachems or which chiefs decided on when a war started and finished. Dr. von Gernet testified that Joseph Brant, a Mohawk, led his people in the late 18th century, not only in times of war but also in times of peace. He was neither a sachem nor a pine-tree chief.

     Chief Mitchell claims that the Mohawks of Akwesasne are presently and have always been a member of the Iroquois Confederacy whose capital is based at Onondaga in New York State. The defendant maintained that, since the American Revolution, there has been two separate Iroquois Confederacies; one based at Grand River and one based at Onondaga.

     Dr. von Gernet testified that although the Mohawks of Akwesasne are now members of the Iroquois Confederacy based at Onondaga, at the times when the alleged treaties were made, they were not members of either the Confederacy based at Grand River or the Confederacy based at Onondaga.

     Both parties agree that after the American Revolution, the Iroquois Confederacy was depleted. The Confederacy Council declared neutrality at the beginning of the American Revolution but the various First Nations took sides. The Confederacy had lost much of its land and its people. Chief Mitchell testified that after the American Revolution, the Confederacy held a Grand Council meeting at Buffalo Creek and rekindled the council fire that had been covered over during the war. The members decided that the best way that the Confederacy could survive would be to allow those who wanted to move to Grand River, a parcel of land guaranteed for the Six Nations who had lost lands during the war, to do so and those that stayed behind would rebuild the Confederacy from there. The two groups split the council fire and one part of the fire was taken to Grand River while the other part remained burning at Buffalo Creek until it was transferred back to Onondaga. The plaintiff's witnesses explained that the splitting of the council fire did not create two separate confederacies. The capital of the Confederacy remained in Buffalo Creek until it was returned to the restored territory at Onondaga which had been destroyed in 1779 by patriot troops.

     Dr. von Gernet testified that the Six Nations at Grand River is a distinct polity from the one whose capital is at Onondaga. When the council fire was split, two confederacies were created. The Six Nations at Grand River set up a traditional system of 50 chiefs that mirrors that at Onondaga. Because of this split, Dr. von Gernet stated that when British officials spoke to the Six Nations at the alleged treaty councils, they were not necessarily speaking to all of the members of the Six Nations. Since there was in effect two separate "Six Nations", the presence of Six Nations from the Canadian side of the border at a meeting with the British did not mean that the interests of the Six Nations residing in American territory were represented. According to Dr. von Gernet, the reverse is also true. He admitted that reconciliation and unity may have been a goal of the Iroquois Confederacy council but he repeatedly stressed that these ideals were not operationalized on the ground.

     For the purposes of this case, it is not necessary for me to decide whether there are now two separate confederacies. I have found that Chief Mitchell is a Mohawk of Akwesasne and, as such, traces his ancestral roots to the Mohawks of the Mohawk Valley. The affiliation of Akwesasne to the Iroquois Confederacy is important only to the determination of whether or not they were present or represented at the alleged treaty councils in 1791, 1795, 1796 and 1815. Both the defendant's and the plaintiff's witnesses agree that present membership and structure of the Iroquois Confederacy is a matter for the Confederacy to decide.

TERRITORY TRAVELLED OVER, USED AND CONTROLLED BY MOHAWKS

     Dr. von Gernet correctly pointed out in his testimony that we have to distinguish between the Mohawk homelands and Mohawk territory because the homelands are much smaller than the territory. The Mohawk homelands are the villages that the Mohawks occupied and the surrounding clearings. I accept Dr. von Gernet's description of this homeland as being restricted entirely to a 48 kilometre stretch of the Mohawk Valley in what is now New York State. What is at issue in the present case, however, is what constituted Mohawk territory.

     As Dr. von Gernet explained, Iroquoians, including the Iroquois and the Mohawks, were horticulturalists. They settled in villages surrounded by palisades. They had longhouses, beautifully constructed, elaborate dwellings which were semi-permanent in that they changed the location of these villages up river or down river a few kilometres every 10 or 15 years. Even though they were horticulturalists, the Iroquois, including the Mohawks, supplemented their corn, beans and squash diet with some products of the chase such as deer or fishing so they did not confine themselves to these homelands. They obviously exploited a larger territory in order to supplement their horticulture diets.

     Dr. von Gernet testified that in defining territory, we have to ensure that the territory that we are talking about is the one that is regularly exploited. Mohawk territory should be defined in terms of the area that the people traditionally exploited regularly during the subsistence quest.

     The boundary of the Mohawk territory that is the most crucial one in this case is the northern boundary. Dr. von Gernet testified that the academic consensus is that the northern boundary of this territory was bounded on the north by the Adirondacks, which is the mountain range in upstate New York, and did not include any parts of what is now Canada. Dr. von Gernet did not suggest that Mohawks never came to what is now Canada. He focussed on the territories that they regularly exploited in their subsistence quest. In terms of their regular subsistence quest, Dr. von Gernet's view is that it is unlikely that the Mohawks went to Canada because it involved crossing a height of land and many aboriginal peoples limited their subsistence quest to waters easily travelled by canoe.

     Dr. von Gernet stated in examination-in-chief:

More importantly, however, we have Champlain actually describing for us what was going on in 1603 in the upper St. Lawrence. Champlain made it as far as where modern Montreal is, and he asked his aboriginal guides, "Tell me, what happens with the river further upstream?" They told him, "Well, if you go further upstream, you turn right and you go and visit Algonquins ...", which of course is on the Ottawa River, "... if you keep going up the St. Lawrence River ...", of course they didn't call it St. Lawrence then, "... but if you continue up this grand river you reach a lake and into that lake empty two rivers and you go up those two rivers and you reach the Iroquois." His informants told him that, "This is the way we go sometimes in our warfare with the Iroquois." There's no mention of any aboriginal occupation or any aboriginal use of this area. It is basically the same as the lower St. Lawrence, a deserted "no man's land" in which all parties were somewhat hesitant to use because of fear of one another.

     Both Dr. Venables and Professor Johnston testified that the upper St. Lawrence area was part of territory travelled over, used and controlled by the Mohawks at the time of contact throughout much of the 17th century. Professor Johnston testified that the upper St. Lawrence area almost seems to be "natural territory" of the Mohawks stating:

What strikes me also was that that section of the St. Lawrence is tied in so closely with the Hudson, Richelieu River, Lake Champlain, the Hudson and the Mohawk valley, that looked at from one vantage point it almost seems to be a kind of integrated region. One should avoid using terms like this, but it almost seems to be the natural territory of the Mohawk, that in effect they could be as much at home on the middle St. Lawrence as in the Mohawk valley.

     Dr. Venables and Chief Mitchell stated that the area in the vicinity of Akwesasne was a Mohawk hunting and fishing area prior to the time that a permanent settlement was established there. Dr. Venables in his report described Mohawk territory, in their perspective, as including the clearings and the woods. The clearings, the villages, the gardens and corn fields were controlled by the women; the woods, lands beyond the clearings over which the Iroquois men hunted, fished and traded. Dr. Venables at page 9 of his report described the extent of these hunting and fishing territories:

The hunting and fishing territories were vast compared to the agricultural fields necessary for each village. This vast territory was due to the wide-ranging habitats of various species of both animals and fish. These concentrations of animals and fish did not just occupy wide ranges geographically, they frequently occupied different territories depending upon the season. This seasonal factor added another factor multiplying the size of the homeland necessary for the Mohawks to survive because spring hunting or fishing locations, for example, might be different from the locations in the summer or the fall.

     Dr. von Gernet at 65-66 concluded that the Mohawk territory did not extend to the St. Lawrence. He stated, inter alia:

For present purposes, and in accord with scholarly practices, I will define the Mohawk "homelands" as the maximum geographical extent of the villages, hamlets, and contiguous clearings indisputably associated with the Mohawk nation. Mohawk "territory" includes not only the Mohawk homeland but also the surrounding forests and drainages which were regularly exploited during the subsistence quest (figure 3.1).

[emphasis on the word "regularly" is in the original, emphasis of the word "indisputably" added]

     As stated earlier, the Supreme Court of Canada authorities make it clear that indisputable evidence is not required to establish the existence of aboriginal rights. The Supreme Court of Canada did not require aboriginal claimants to establish exclusive use of the territory in order to establish aboriginal rights and, of course, they also did not require aboriginal title to the territory. Dr. von Gernet described the northern boundary of Mohawk territory as a natural feature, the Adirondack Mountains, whereas Dr. Venables, Professor Johnston and Chief Mitchell extended it to the St. Lawrence River. In Adams, supra the Supreme Court of Canada relied on the testimony of Dr. Bruce Trigger regarding the evidence of Mohawk use and control of the St. Lawrence Valley. Dr. von Gernet took issue with the summary of evidence presented in the judgment of the Supreme Court of Canada in the Adams case, and testified he "found no evidence whatsoever that the Mohawks fished and hunted in that particular lake -- no direct evidence, that is", but he added:

What I can say that in the course of their raiding expeditions along the St. Lawrence while they were engaged in warfare with their northern enemies, they would almost certainly have had occasion to travel along this route, presumably stop, victualize their armies, provide their armies with food.

     I also acknowledge that Dr. von Gernet directly contradicted Professor Trigger's evidence that the Mohawks effectively occupied and controlled this territory from at least 1603 and probably before. Dr. Trigger supported the notion that the Mohawks controlled the Upper St. Lawrence because the Hurons avoided the Upper St. Lawrence. Dr. von Gernet attributed the avoidance to geography because the regular route to Huron country was the Ottawa River prior to 1603.

     Dr. von Gernet's view was that:

... prior to 1603 it is unclear which aboriginal peoples made use of the St. Lawrence Valley, although there is evidence to suggest that at that time the lands were occupied in part by a group of Iroquois unrelated to the Mohawks.

     On this point, he agreed with Dr. Trigger with one exception. Dr. Trigger described the group as Iroquois-speaking and Dr. von Gernet referred to them as Iroquoian-speaking.

     He agreed with that statement from the Supreme Court of Canada and stated that he also agreed:

From 1603 to the 1650s the area was the subject of conflict between various aboriginal peoples, including the Mohawks.

     It is interesting that the Supreme Court of Canada in Adams was faced with a similar divergence of experts' opinions as to the Mohawks' use and control of the area, Lamer C.J. in Adams, supra found at paragraphs 45-46:

This general picture, regardless of the uncertainty which arises because of the witnesses' conflicting characterization of the Mohawks' control and use over this area from 1603 to 1632, supports the trial judge's conclusion that the Mohawks have an aboriginal right to fish for food in Lake St. Francis. Either because reliance on the fish in the St. Lawrence for food was a necessary part of their campaigns of war, or because the lands of this area constituted Mohawk hunting and fishing grounds, the evidence presented at trial demonstrates that fishing for food in the St. Lawrence River and, in particular, Lake St. Francis, was a significant part of the life of the Mohawks from a time dating from at least 1603 and the arrival of Samuel de Champlain into the area.

     Regardless of the conflicting characterization of the Mohawks' use and control of the territory in the St. Lawrence Valley, in my view, the Mohawks whose homelands were in the Mohawk Valley prior to the arrival of the Europeans, regularly exploited the area in the St. Lawrence Valley which is now part of Canadian territory. It is not clear from the evidence whether the Mohawks consistently used the area as a hunting and fishing territory or whether the area was mainly a battle and raiding ground with other First Nations. However, it is clear that the territory around the St. Lawrence River, in what is now Canada, was regularly travelled by the Mohawks. The plaintiff in the case before me, as in the Adams case, did not claim aboriginal title to the tract of land over which he claims that his ancestors exercised their aboriginal rights, nor, as was explained in Adams, is a claimant required to have aboriginal title to the land over which an aboriginal right is claimed to have been exercised. I am satisfied that the Mohawks frequently travelled North into Canadian territory from the homelands in the Mohawk Valley, and freely crossed what is now the Canada/United States boundary.

     Akwesasne is part of the Mohawk nation and is part of the Six Nations Confederacy. As stated earlier, the plaintiff is a Mohawk and is a descendant of the Mohawks of the Mohawk Valley. The defendant argued that the Mohawks of Akwesasne and, by extension, the Mohawks of Kahnawake were not part of the Mohawk nation. The Crown also argued that, as members of the Seven Nations (the Christian alliance of aboriginals in Canada) the Mohawks of Akwesasne could not be members of the Six Nations Confederacy. Dr. von Gernet testified that the establishment of a permanent Mohawk settlement on the St. Lawrence River in 1670 "led to the break-up of a unified Mohawk nation and the appearance of two distinct national identities". He contends that the Mohawks living in the Mohawk Valley and the Mohawks living in permanent settlements on the St. Lawrence (Kahnawake, Kanesatake and later Akwesasne) were two different polities with two different histories.

     Beginning in the 1660s, Mohawks from the Mohawk Valley, as well as other Iroquois including Oneida and Onondaga, began migrating north to establish permanent communities near Montreal, at Caughnawaga and later at Lake of Two Mountains or Kanesatake. The reasons behind the decision to establish permanent communities on the St. Lawrence are complex. Many Mohawks moved for religious reasons but not all the Mohawks who converted to Catholicism left the Mohawk Valley. Some moved north because they believed that an alliance with the French was preferable to neutrality or an alliance with the English. There was also much alcohol and many disease problems in the Mohawk Valley and some may have moved to Caughnawaga to escape the problems. Professor Johnston testified, in cross-examination, that trade was a vital factor in the establishment of a permanent Mohawk presence in Caughnawaga. He stated:

The other way I would look at that of course is the emigration of so many Mohawks from the Mohawk Valley to Kahnawake, to the middle St. Lawrence, depleting the Mohawk population in the Valley, and thus weakening the Confederacy. That's another way I would look at it. I read somewhere that at times there were more Mohawks at Kahnawake than there were in the Mohawk Valley, given the influx to that particular part of the world.

What strikes me also was that that section of the St. Lawrence is tied in so closely with the Hudson, Richelieu River, Lake Champlain, the Hudson and the Mohawk Valley, that looked at from one vantage point it almost seems to be a kind of integrated region. One should avoid using terms like this, but it almost seems to be the natural territory of the Mohawk, that in effect they could be as much at home on the middle St. Lawrence as in the Mohawk Valley.

Both were maritime extensions of European empires ...

     Dr. von Gernet also listed trade as a reason for the move to establish permanent settlements on the St. Lawrence. He stated:

Others may have had economic motivations, since Montreal emerged as an important centre for the fur trade and promised opportunities for secure commerce with the French. Still others probably left to serve as hired porters in the illicit trade between Montreal and Albany that emerged after 1670 and flourished in the eighteenth century.

     Further, statements made by a Caughnawaga chief at a Council on Isle La Mote, in Lake Champlain, in 1766, confirm the importance of trade in the decision to establish a permanent settlement at Caughnawaga. The Caughnawaga spokesman states at a conference at Isle a la Mote, September 8-9, 1766, published in The Papers of Sir William Johnson, vol. XII (Albany: The University of the State of New York, 1957) at 172:

Brethn.

What we have been speaking of to you concerning the Lands & Lake in Question was only of latter Times & since the Europeans have come amongst us; As to the original Owners [of] thereof any; one that knows the history of this Country before that period will [find] testify it to have been then ye. undisputed Right of the 6 Nations & their Allies & was chiefly occupied in the hunting Seasons by the Ancient Mohawks whose Descendants we are, and our Forefathers going to hunt[ing] mostly in this Neighbourhood was one of the principal Reasons for our Settling upon the river St. Lawrence near Montreal, Since whenever they killed an Game nearest that market they brought it there, and being well received & flattered by the french (on the Contrary were slighted by the Dutch who then possessed the Province of N York) families after families settled & remained in Canada which occasioned the Establishment of what to this day is called the french Mohawks & our present habitation.

     Dr. von Gernet questioned the motives behind the statements made by the Caughnawaga spokesman since it was given in the context of a land dispute but he agreed that the document does establish that a Kahnawake Mohawk gave trade and a good reception from the French as one of the reasons for settling there. It is an important document because it provides evidence of an oral tradition or history explaining the motives for the establishment of a permanent Mohawk community in Kahnawake. While it was made in the context of a land dispute, I am satisfied that it is a credible document.

     Two letters to the King written by Frontenac, Governor of New France, in 1681 and 1679 are of great relevance to the question as to whether Akwesasne and Kahnawake Mohawks are within the Mohawk nation. In the letter of November 2, 1681, Frontenac explained to the King some of his concerns regarding the trade taking place between Albany and Montreal:

The only difficulty, Sire, was to know, before it would please Your Majesty so to prescribe, how to proceed with the Savages and principally with the Loups and the Iroquois of the five large villages who have been engaging in this trade for a long time, by means of those of their nation who live at the Sault St. Louis near Montreal, which they use as a warehouse for this traffic, as I have already had the honour of informing Your Majesty, but which I do not think it necessary until now to oppose other than by protests, for fear that having them arrested with their merchandise would only give rise to a breach that the country would not be in a position to sustain.

(See exhibit P 41B at p.3, translation of letter by Compte de Frontenanc to His Majesty, King of France, dated November 6, 1679, emphasis added.)

     Dr. von Gernet did not think this document should be read at face value. He felt that Frontenac was being "imprecise". On the other hand, Dr. Venables concluded from this letter that:

... the Mohawks of the St. Lawrence area were Mohawks. In 1681 Frontenac comments that he cannot close the trade for fear of affecting the five Nations who were benefitting from it.

     I also note that in 1888, the Mohawk nation fire was transferred to Akwesasne by the Confederacy chiefs. Thereafter, Akwesasne was the official Mohawk seat of the Confederacy.

     Also, the Onondaga spokesman indicates that the Mohawks living at Caughnawaga were considered to be "our people", as can be seen by the fact that he finished his address to Governor Frontenac by saying:

We do not ask you to send us back those of our people whom you may have here; but if there be any among them who may desire to return to our country, we ask you not to keep them, but only those who wish to remain.

[See E.J. Devine, Historic Caughnawaga (Montreal: Messenger Press, 1922) at 118]

     Dr. Venables in his testimony stated that there was constant communication, cultural ties, intermarriages and movement between the northern and southern Mohawk communities. An example of these ties came about in 1755 when the French lost a key battle because of the absolute refusal of the Kahnawake and Kanesatake (Lake of Two Mountains) Mohawks to fight against their own people. I accept the evidence of the plaintiff on this issue.

     In my view, post contact, the Mohawks continued travelling North into Canadian territory from the homelands in the Mohawk Valley and crossed what is now the Canada/United States boundary freely. The Mohawks established homelands in Canada and in Akwesasne.

TRADE IN PRE-CONTACT AND CONTACT TIMES

     I must now examine the evidence with respect to trade in the first half of the 17th century and oral evidence relating to pre-contact trade.

     I note that Dr. von Gernet has now done a study on oral narratives. However, this study was not a part of the expert report of Dr. von Gernet nor was it filed as a supplementary document to his report. Accordingly, I ruled that the report was not properly before the Court and that the result of his investigation as it affects the validity of oral history would have to await another case when the matter was properly adduced in evidence. However, I note that Dr. von Gernet did testify as to his scepticism with respect to oral traditions and made the following remarks:

Anthropologists study not only the content of oral narratives and oral traditions, for the possibility of historical events being contained in these; they also study these oral narratives as beliefs. I think it is crucial to distinguish between what people believe about the past and what happened in the past.

     Dr. von Gernet also noted that the concurrence of voices was a weak test; hence, even when all the Mohawk witnesses "embody one truth", this does not mean that such a truth bears any relation to an actual history or that this raises a reasonable presumption that their facts are clear.

     In my view, Dr. von Gernet's opinion on oral histories is contrary to the position of the Supreme Court of Canada, which has directed that oral narratives or oral histories should be accepted as any documentary evidence would in cases involving aboriginal peoples. The Supreme Court in Van der Peet, supra at paragraph 48 warned that:

[t]he 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 tort case.

     I have reviewed the oral histories given by the plaintiff's witnesses in the same manner that I have reviewed documentary evidence provided by both parties. The weight that I accord to oral history and to documentary evidence does not depend on the form in which the evidence was presented to the Court. The aboriginal perspective is based on oral tradition and history, and not on belief as submitted by the defendant.

     The earliest recorded observations of Mohawk life and traditions are found in the diaries of Dr. van den Bogaert published in Harmen Meyndertsz van den Bogaert, A Journey into Mohawk and Oneida Country 1634-1635, (Syracuse, New York: Syracuse University Press, 1988). Dr. von Gernet, like Dr. Venables, emphasized the importance of this Dutch explorer's observations at page 89 of his report:

For this reason, [Dutch concern over rumours that the Iroquois had begun trading with the French] the commissary of Fort Orange sent Harmen Meyndertsz van den Bogaert and two other employees into Mohawk "country" (i.e. homelands) to investigate the matter. This resulted in the earliest record of a European journey to the Mohawk villages, as well as the first detailed account of the Iroquois and first known reference to the League.

     During Dr. van den Bogaert's sojourn in the Mohawk homelands, he observed the arrival of three Iroquois women, perhaps Oneidas, carrying dried salmon and green tobacco which they then sold in at least two Mohawk villages. He described at page 6 of the Journals:

Three women came here from the Sinnedens [a general Dutch term often referring to any Iroquois living west of the Mohawks, as well as to the "Senecas" proper] with some dried and fresh salmon ... They also brought much green tobacco to sell, and had been six days underway. They could not sell all their salmon here, but went with it to the first castle [that is, a Mohawk village further east].

     Dr. Venables emphasized the importance of this evidence. In his testimony, he stated:

What I think is remarkable about that is that the trade is coming in this dried fish, but it also seems to be, from the evidence, that these women are unescorted, that they feel perfectly comfortable trading within the Confederacy without escort, without a police or military escort. There doesn't seem to be any apprehension on their part that this is unusual.

When they show up, no one seems to find this remarkable, so I would suggest that this is one of the indications of what trade looked like prior to the arrival of the Europeans.

     Dr. van den Bogaert also described the dwellings in the Mohawk village and was sceptical that the materials in those dwellings that were not available to Mohawks were obtained through legitimate trading. At page 4 of the journal, van den Bogaert wrote:

There were also some interior doors made of split planks finished with iron hinges. In some homes we saw ironwork: iron chains, bolts, harrow teeth, iron hoops, spikes, which they steal when they are away from here.

     The editors of the journal, in footnote 20, explain that the presence of iron materials among the Mohawk is not surprising, because these goods first appeared in small numbers in Mohawk sites around 1550, and as early as 1580, European trade goods were being obtained by Mohawk raiding parties in the St. Lawrence Valley. In my view, the evidence demonstrates that the Mohawks were involved in both legitimate trade, although not on a commercial scale, and obtained goods through raiding at this time.

     Dr. Venables linked diplomacy, travel and trade together as distinguishing features of the Mohawks. Dr. Venables agreed with and adopted a statement by Elisabeth Tooker in "The League of the Iroquois: Its History, Politics, and Ritual" at 418 regarding the distinguishing features of the Iroquois confederacy:

However, advantage unused avails nothing, and without the strength afforded by their League, it is doubtful that the Iroquois would have played such a crucial role in the history of the Northeast. Other tribes, including other northern Iroquoian tribes, formed confederacies; therefore, that fact alone cannot account for Iroquois superiority. But combined with skilful use of geographic advantage, it earned the Iroquois a reputation for political genius. Gov. Clinton (1812:9) termed them the Romans of the West, and Morgan (1901,1:3) stated that the Iroquois had achieved for themselves the most remarkable civil organization in the New World excepting only Mexico and Peru. The League organization still serves the Iroquois on some reservations as a basis of governance.

     At page 24 of his report Dr. Venables writes: "Prior to the arrival of the Europeans, the Haudenosaunee were already experienced traders who had taken advantage of their geographic position". Professor Johnston, an expert for the plaintiff, also affirmed the skilful use of geographic advantage for the purpose of trade and diplomacy. He stated that:

The Mohawks, of course, established a very close connection with whatever European power dominated the Hudson Valley. Of course, the focus in the upper country was Albany.

The Dutch had established themselves there first, made contact with the neighbouring Mohawk, upper and lower Mohawks and they became the agents through which first the Dutch and then the English, who succeeded the Dutch, established relations with Indian bands further west. So there was a close bond between Albany and the Mohawk valley.

I don't want to get into geographical determinism here, but you've got the Hudson, you've got the Mohawk River, you've got the watercourses of central and western New York all seem to be pointing like an arrow at the lower Great Lakes country. That whole area was a means of access that geographically competed with the St. Lawrence and Lake Ontario as a means of gaining entry into the fur-bearing lands.

The French arrested the Dutch first and then the English established their control in the Hudson and Mohawk valleys and the French do the same thing on the St. Lawrence. So you have these competing systems. The point is the Mohawks are right in the middle.

Even if the Mohawks had wanted to stay out of things, they couldn't. They were overtaken by factors of geography and strategy and all the rest of it. Had they not been in such a central location they wouldn't have been so profoundly affected by what happened after the Europeans came, but the Mohawk became the Europeans' trading partner, the liaison with the western nations.

     Dr. Venables further stated in his report, at 26:

European trade goods first appeared among the Mohawks as early as 1550, according to archaeological excavations of Mohawk sites. In 1634, the Dutch trader Harmen Meyndertsz van den Bogaert himself observed the impact of this earlier trade and the more recent Dutch trade on the Mohawks when he noted that the Mohawk town of Canowarode had bark longhouses with "interior doors made of split planks furnished with iron hinges. In some houses we also saw ironwork: iron chains, bolts, harrow teeth, iron hoops, spikes ..." -- much of which van den Bogaert indignantly assumed the Mohawks had stolen rather than obtained through trade.

[footnote omitted]

     Dr. von Gernet confirmed that European goods appeared in New York State and Britain by the middle of the 16th century, long before there was actual contact. He stated that European goods were given to aboriginal peoples who were on the eastern seaboard and they in turn took them into the interior or traded with their aboriginal partners further inland.

     In the course of addressing a question regarding trade between the Iroquois at Grand River and the Iroquois living in New York, Professor Johnston referred to trade being a defining element of the Mohawk people and the Iroquois Confederacy. He stated:

Well, let's put it this way, trading and making war came as easily to the Iroquois as living and breathing. When they weren't making war, they were usually engaged in trading. Trading was certainly one of the customs, ritualized customs and activities of the Iroquois. When you talk about Iroquois you have to talk about trade and commerce. It's central to their soul, just as war was. War, of course, stemmed out of trade and trade came out of war.

So to say that the Iroquois were not trading with their southern brethren is to suggest that they had dispensed with one of the basic features of their culture. They'd just trade to live.

     Professor Johnston testified he was really depending on what ethnographers and anthropologists said about the trades and customs of the Iroquois to back up the statement that trading came as readily to them as living and breathing.

     Archeological records reveal evidence of trade in the early prehistoric period. Dr. Venables stated in his report at 24-25:

Indian nations throughout North America traded with each other for thousands of years before the arrival of the Europeans. Various American Indian nations had moved into what is now the State of New York following the retreat of the glacier after 8,000 B.C. By 3,000 B.C. in what is now central New York State, some of the ancestors of today's Haudenosaunee had begun forming settlements in which trade became increasingly important over the next several hundred years. By 300 B.C., trade was so extensive that it extended in every direction. The prominent archaeologist William A. Ritchie noted that the evidence for trade to the Great Lakes to obtain copper dated to a period as early as about 3,000 B.C. (the "Oberlander No. 2 site immediately northwest of Oneida Lake). Ritchie also vividly described what he called the "Meadowood" phase or culture (flourishing between 3,000 B.C. and 300 B.C.) as

the earliest recognized culture in the New York area to give evidence of fairly diversified trade relationships with distant regions ... The location of Meadowood sites on rivers and lakes, all part of an extensive system of interlinked waterways, doubtless facilitated this intercommunication, possibly through a system of trading partners, which probably took place by canoe travel, as in earlier times, rather than by overland forest trails, as [in later centuries] among the Iroquois and other Late Woodland tribes.

Ritchie elaborated his description of the trade networks by citing specific objects which were found by archaeologists at the sites of various villages. The quote below is significant because the chalcedony stone which Ritchie describes was taken from Quebec to central New York by Indians passing through the St. Lawrence territory specific to this case. This trade occurred as early as 3,000 B.C. and definitely by 300 B.C.:

These trade routes point in all directions from central New York, eastward to the Atlantic coast for the marine-shell beads; evidently to the north in Quebec for the smoky chalcedony ceremonial (?) knife [that is, a knife made of this type of semiprecious, quartz stone]; southward into eastern Pennsylvania for jasper and the steatite pots; but chiefly westward toward the Upper Great Lakes, where also the strongest cultural ties are found, for the copper tools and ornaments, the striped slate gorgets and birdstones, and the Harrison County, Indiana, flint "Turkey Tail" knives or spears.

In fact, the determined development of an extensive trade network enabled the ancestors of today's Haudenosaunee to participate in one of the most revolutionary events in Northeast history: the arrival from the west of corn (maize). The adaptation of corn cultivation throughout the northeast provides dramatic and significant evidence of international trade. The trade in corn evolved gradually and reflects the gradual building by the Indians of North America of an international trade network with a source in Mesoamerica ... By about 3,500 B.C., corn had reached Arizona and New Mexico, and by 1,000 B.C. it was being traded east of the Mississippi. (Like many trade networks in Europe, it is possible that trade was extended both peacefully and imperially.) Perhaps as early as 500 B.C., perhaps by 500 A.D., but certainly by 1000 A.D., the Haudenosaunee were cultivating corn, the marvellous invention from Mesoamerica. [emphasis added]

     I find the map from the Historical Atlas of Canada, supplied by Dr. Venables, which shows prehistoric trade and trade routes does not demonstrate cross-border trade by the Mohawks.

     In Dr. von Gernet's supporting material, there is evidence of prehistoric trade. He includes an excerpt from Daniel Richter's article, "Ordeal of the Longhouse; The Five Nations in Early American History" in Beyond the Covenant Chain: The Iroquois and their Neighbours in Indian North America, 1600 - 1800, D.K. Richter and J.H. Merrell, eds. (Syracuse, N.Y.: Syracuse University Press, 1987) at 28-29 which vividly describes the importance of both gift-giving and trade for the ancestors of the Iroquois:

... Particularly prized as gifts from great sources of power were chunks of worked plates of copper originating in the Great Lakes region, beads made from seashells from the Atlantic coast, and exotic stones or volcanic materials from any distant locale ...

Small-scale long-distance trade supplied many of these vital, spiritually powerful goods. In their more mundane material needs, however, Iroquois communities were almost entirely self-sufficient. Food, clothing, shelter -- all the basic demands and even amenities of everyday life -- women and men gleaned from the fertile fields and bountiful forests, lakes, and streams surrounding their towns and hamlets. Consequently, the villagers of the Five Nations had no need for, and evidently no tradition of, large-scale trading relationships with other peoples or even, before the fifteenth century, other Iroquois. In this they stood in sharp contrast to, for instance, the Hurons, a nearby group of Iroquoian-speakers whose culture was in most respects very similar to theirs. Apparently from time out of mind, those residents of the Georgian Bay peninsula had exchanged corn and other items for venison from the Algonquian-speaking hunter-gatherer neighbours to their north.

[emphasis added]

     Dr. von Gernet testified that this passage from Richter must have been based upon an archaeological record since Richter referred to a period pre-contact. Dr. von Gernet then acknowledged that it was fair to say that the trade would have been small scale but it would have been "vitally important to them". In my view, this testimony indicates firstly, that trade was of vital importance to the Iroquois people and secondly, that while this trade was not on as large a scale for the Iroquois as it was for the Hurons, there is evidence of small scale long distance trade. From the 16th century on, there was indeed a tradition of trading between Iroquois peoples. While Dr. von Gernet essentially agreed with the plaintiff's witnesses that the Mohawks and other Iroquois were trading with each other and with other First Nations before contact with Europeans, (in Dr. von Gernet's view the trade was limited to barter trade) the major difference is that Dr. von Gernet testified that the geographic territory over which the Mohawks traded was limited. He did so, firstly, by disputing the nature of Mohawk control over the territory in the vicinity of the upper St. Lawrence and, secondly, by deeming the Montreal-Albany fur trade illicit. He was referring to the trade which flourished between the Mohawk community of Kahnawake and Albany, New York in the late 17th and early 18th centuries.

     I also note that Dr. von Gernet, who was qualified as an archeologist, testified "I have yet to find a single archeological site anywhere in Ontario dating to the prehistoric, the protohistoric or the early historical period which has in any way ever been associated with the Mohawks". Archeological evidence is not the only evidence available and further, this statement does not correspond with Dr. von Gernet's agreement that the passage from Richter refers to archeological evidence of pre-contact trade.

     I prefer the evidence of Dr. Venables and Professor Johnston which is supported to some extent by Dr. von Gernet in that the Mohawks engaged in small scale trade pre-contact and that in the early 17th century, the trade with their aboriginal partners was expanded to include European goods.

     I must decide whether the activity for which the plaintiff claims an aboriginal right has some continuity with activities of his ancestors' pre-contact. As was stated in the Supreme Court of Canada in Van der Peet, supra at paragraph 64:

... Because the practices, traditions and customs protected by s. 35(1) are ones that exist today, subject only to the requirement that they be demonstrated to have continuity with the practices, customs and traditions which existed pre-contact, the definition of aboriginal rights will be one that, on its own terms, prevents those rights from being frozen in pre-contact times ....

EARLY MOHAWK TREATIES

     Dr. Venables stated in his report at page 26 that:

The Haudenosaunee were very aware of travel and trading rights -- their national survival depended upon them. In 1643, they made an alliance with the Dutch and agreed to help the Dutch fight Algonquin Indian enemies in exchange for access to Albany and New York City where they could acquire guns, a previously restricted commodity.

Because the Iroquois needed these guns to fend off the French, Algonquin, Huron, Susquehanna, and other enemies, the Haudenosaunee awareness of the access to travel and trading rights was a practical, ongoing political motivation. Moreover, since the consequence of any restrictions on their access to travel and trade would have meant their defeat and possible annihilation, the Haudenosaunees' tradition of asserting travel and trade rights -- through negotiation and, if necessary, war -- was never regarded as separate from their continued survival and identity as a distinct people.

In fact, by the 1640s, the Iroquois were determined to restrict the trade and travel of others, both Indians and Europeans. Thus in a 1645 treaty with the French and the Hurons, whom the Iroquois had at least temporarily defeated, the Iroquois insisted on restrictions on both the trade of the Hurons and the French, to the primary benefit of the Haudenosaunee. The negotiations were carried out in Montreal by a Mohawk spokesman, Kiotsaeton, who presented wampum belts for each point he wished to stress. When this treaty was broken by the Hurons and the French the following year, the Iroquois went to war.      [footnotes omitted]

     As stated by F. Jennings et al. in The History and Culture of Iroquois Diplomacy: An Interdisciplinary Guide to the Treaties of the Six Nations and their League (New York: Syracuse University Press, 1985) at 127, the treaty in 1645 constitutes "the best description available of what Iroquois treaty processes were like before being modified by the influence of the Europeans." Dr. Venables discussed the Iroquois perspective with respect to this treaty in his testimony in chief. He stated:

... In that speech he [Kiotsaeton] is attempting to make a bridge of peace towards French allied Indians. In that he uses imagery to clear the path of limbs that are in the way and to get canoes over the difficult places of the water.

His imagery refers to two forms of the way people would trade, by land and by water. These symbols seem to be once again not unusual to the listeners. No one seems to have thought that this was an unusual idea.

In fact, his concept of clearing the rivers goes all the way back to the creation and transformation of the world, where there were two spiritual males who set about making the world that we see. One was a positive and one was the opposite.

We are told in that account that originally rivers were created by the positive twin with currents that ran both ways, so that you could travel in your canoe without any difficulty at all.

But the negative opposite changed the rivers, so that they only flow in one direction, which makes it more difficult to take your canoes up and down these water passages.

I think there is a lot of evidence that indicates that trade and diplomacy were all interrelated during the historic period of contact with the Europeans, and that if we upstream it, using Dr. Fenton's word, we can surmise that these same ideas preceded contact with the Europeans.

    

     Dr. von Gernet stated there are earlier treaties between the Iroquois and the Europeans than the 1645 treaty but he agrees that the conference and treaty are the earliest to be described. He does not agree that the 1645 treaty involved trade. He recognized the opinions of a number of writers who believe that the treaty dealt with trade. However, he concludes that the 1645 treaty provided only an opportunity to exchange prisoners. At page 94 of his report, Dr. von Gernet states:

... Hunt argued that this was a commercial treaty that would allow the Iroquois to trade with the Hurons and Algonquins. Fenton believes that the Iroquois, in an effort to satisfy their need for trade goods, needed access to Algonquin hunting grounds north of the St. Lawrence. Jennings argues that the Mohawks were interested in gaining control over both the Dutch and French trade, in addition to access to the hunting territories of their former enemies. Druke implies that the Iroquois were interested only in an alliance with the Hurons and that they tried to use the French as a gateway to negotiations. Both Trigger and Heidenreich argue that, from a Mohawk perspective, the truce was intended to regain relatives who had been captured by the enemy, create competition between European rivals, and have hunting access to Algonquin territories (or at least to the no-man's land that lay between them). Dennis implies that the proceedings were part of an Iroquois effort to cultivate peace and amalgamate all the nations into one confederation; while he concedes that this had been a French initiative, he neglects to mention that Mohawks eventually broke the truce. Whatever the motivations of the various parties, the 1645 treaty provided only an opportunity to exchange prisoners and did not last long enough to alter the political alignments in the theatre.

[footnotes omitted]

     Dr. von Gernet relies on Delage, Fenton and Tooker, Jennings et al., Trelease, and Trigger. All of the sources relied on by Dr. von Gernet discuss the 1645 treaty in terms of trade. These sources recognize that the peace was short lived, however, all of their discussions centre around trade issues. The 1645 treaty may have dealt with the exchange of prisoners and a restoration of peace, however, I find this peace was a means to open access to trade between the parties.

     Dr. von Gernet also described an earlier treaty. In 1613 the Dutch were in the Hudson River area. They were engaged in treaty-making and other negotiations with the Mohicans and with the Iroquois. The Iroquois had a problem with the Mohicans because the Mohicans were getting in the way of the Dutch trade goods. The Dutch took action to alleviate these tensions. T.J. Brasser in the Handbook of North American Indians, vol. 15 (Washington, D.C.: Smithsonian Institution, 1978) at 202 states:

In April 1613 Capt. Hendrick Christianesen and Jacob Eelckens came up the Hudson River in order to establish a permanent trading post for the Van Tweehuysen Company. They may have been already aware of the unpleasantness between their future Mahican and Mohawk customers, and the two traders appear to have made an effort to conciliate the two parties during a meeting on Tawasgunshi Hill near Normans Kill, Albany County. The memory of this treaty lived on in the oral traditions of the Mohawk, Delaware and Mahican up to the 1740s ... These traditions have received considerable support with the publications of the original document of the treaty, acquired from the Iroquois on the Grand River Reserve in Canada ... In this first treaty between North American Indians and Europeans, the Mahican Indians gave their approval of the founding of a trading post, which was established on Castle Island, opposite a Mahican village, in 1614. The peace treaty did not restrain the Mahican from exploiting their monopolistic trade position, and they forced the Mohawk to pay tribute in return for the privilege of access to the trading post. Continuous skirmishes were the result and the traders abandoned Fort Nassau in 1617.

     The first treaty which was signed by the aboriginal peoples in North America was between the Five Nations, including the Mohawks, and the British, entered into in 1664. This treaty also included two articles with respect to trade. Both the first article of the treaty and the third article of the additional articles proposed by the "Indian princes" and accepted by the British refer to trade. It is noteworthy that the strongest statement about trade in this treaty is the article proposed by the Iroquois and Mohawks and accepted by the British: "3. That they may have free trade, as formerly." The treaty is particularly noteworthy because both clauses on trade refer to earlier times. In article 1 the reference is to the English trading the same wares and commodities with the Five Nations as the Dutch had and the third additional article implies the continuation of free trade by the Five Nations.

     It is significant that trade was considered to be so fundamental to the Iroquois that they referred to it in their earliest treaties with the Europeans, and indeed insisted that clauses related to trade be inserted. From this evidence I conclude, in conformity with the tests set out by the Supreme Court of Canada in Gladstone and Van der Peet, supra that trade was an integral part of the distinctive culture of the Iroquois in general and the Mohawks in particular. Since the Mohawks were part of the Iroquois league at that time, trade must have been an integral part of their distinctive culture.

COMMERCIALLY MOTIVATED WARFARE

     The Iroquois frequently travelled north into the territory which today constitutes Canada in order to further their control over trade. Dr. von Gernet agreed it could be termed "commercially motivated warfare". The real question in his view is whether trade was also a substantial part of such use of the territory. Dr. Venables has characterized such commercially motivated warfare as the "imperial extension" of trade networks. He described well used trade routes that constituted both trade routes and military routes as follows:

Originally, they [traders] would go up through -- they could take several routes -- the water chain that links Lake George, [Lake] Champlain and the Richelieu River. There are other ways that they could take. There are all kinds of trading routes that go through the Adirondacks. There are records of those trade routes as both routes of trade and routes of war. There are any number of ways they could have gotten around French authorities. Frontenac wanted to set up a force on the St. Lawrence to block that trade.

     The extension of trading networks in the 17th and 18th centuries was frequently carried out through warfare. Indeed, commerce, in the form of the fur trade was the principal pursuit of the French Crown in Canada and a fundamental pursuit for both the Dutch and British. Dr. von Gernet explained the history from 1609 which I have summarized below. I accept Dr. von Gernet's evidence as a general description of this period, but do not accept his opinion that the Akwesasne area was not used for trade purposes by the Mohawks.

     The Hurons, Algonquins and Montagnais were, militarily and through trade relations, allied with the French newcomers. That original alliance dates back to 1603. The Hurons became part of that alliance when Champlain actually began his travels into the interior and engaged in a trading relationship with the Hurons. Thus the Hurons, Algonquins, Montagnais and French were allies to the north and they were enemies of the Five Nations Iroquois who were living in what is now New York State. To the east or southeast of the Mohawks were an Algonquin people called the Mohicans.

     In 1609 Champlain went up the Richelieu River and then down what is now Lake Champlain. There, his party had a hostile encounter with a Mohawk war party. Coincidentally, that same year, the Dutch had hired Hudson to explore the Hudson River from the south and to travel all the way up into Mohican country. When Hudson went up in 1609, he encountered the Mohicans. Some say he may even have encountered the Mohawks. That is still unclear. Regardless, this encounter marked the beginning of a trade relationship between the Mohicans and the Dutch. At the time, the English were not involved.

     The Mohicans who controlled the area of the upper Hudson River were the enemies of the Mohawks. The Mohawks could not get European goods from the French because they were at war with them, and they could not get European goods from the Dutch because the Mohicans were in the way.

     During the period between 1614 and 1628, the Mohicans were restricting the Mohawk trade with the Dutch. The Mohicans had only one way in which they could preclude the Mohawks from engaging directly with the Dutch and that was to impose tributes or tolls on the Mohawks.

     This was a commonly used method of controlling trade at the time; the elicitation of tolls or tributes from those seeking passage over an aboriginal people's territory. Since the Mohawks were reluctant to continue this practice with respect to the Dutch, they eventually went to war with the Mohicans. In 1628, this war finally resolved in favour of the Mohawks. In essence, the Mohawks defeated the Mohicans and were able to trade directly with the Dutch. The Mohawks also succeeded in restricting and, for the most part, precluding trade between the Algonquins and the Dutch.

     Dr. Venables and Ms. Holmes agreed with the following opinion tendered by D. Peter Mcleod, an expert witness at the trial in R. v. Vincent (1993), 12 O.R. (3d) 427 (C.A.):

Amerindians .. were thus accustomed to the concept of boundaries and paying for the privilege of crossing arbitrary lines established by other groups. Requesting payment for this privilege was a general Amerindian custom, practised at many times and places and not in any way unusual. One should also note that this is accepted as factual by all historians of the period, and is not controversial.

     The defendant submitted that even if the aboriginal right claimed exists, the paying of tolls and tributes is consistent with the exercise of the right in pre-contact times because there is evidence that the concept of tribute, tolls and boundaries existed before the arrival of the Europeans.

     I agree with the submission of the plaintiff on this issue. The fact that an activity was regulated in pre-contact times in no way indicates that such activity cannot constitute an aboriginal right. For instance, if it could be shown that the Mohawks regulated who amongst them could fish or how members of their people could fish, how could this be used to argue that those rights could not be infringed under Canadian law?

     According to Dr. von Gernet, during this period, Mohawk trade followed an east-west axis. It did not follow a north-south axis because the northern neighbours were hostile and the Mohawks were unable to trade with either the French or their aboriginal trading partners and military allies. Moreover, the Mohawks made it very difficult for other Iroquois who lived to the west of them to trade with the Dutch causing considerable enmity among the Five Nations. The Mohawks, because they were strategically situated in the Mohawk Valley, were able to restrict and regulate the trade that the other Iroquois, especially the Onondagas, wanted to have with the Dutch. This created considerable tensions and enmity during the 17th century.

     Dr. von Gernet, however, described a pattern of raiding involving Mohawks and other Iroquois going north into the St. Lawrence and across the St. Lawrence into Huron territory and Algonquin territory. The Algonquins and Hurons retaliated with raiding expeditions into what is now New York State. This was punctuated on occasion with efforts for peace which often resulted in not much more than a few months of peace, with one exception in the 1670s. This peace lasted a little longer and offered an opportunity for exchange of prisoners and some friendly relations in the short term. According to Dr. von Gernet "despite the availability of a voluminous literature, there is no evidence whatsoever for a sustained "north-south commerce by the Mohawk nation". Dr. von Gernet was the only witness qualified as an archeologist. He denied that the Mohawks engaged in what is now cross border trade into Canada. In my view, Dr. von Gernet concentrates too much on the raiding activities and I prefer the evidence of Dr. Venables that there was north-south cross-border trading. It is also supported by the evidence of Chief Mitchell that the Akwesasne area was used for hunting and fishing and was travelled frequently by the Mohawks.

     Dr. von Gernet stated that in the 1650s the Iroquois, particularly the Mohawks and Senecas, decided they would put an end to the problem that they had with the Hurons and Algonquins. They massed an invasion force in the late 1640s and early 1650s which led to the dispersion of the aboriginal peoples of Ontario.

     In the early 1650s, the Mohawks and other Iroquois for the first time could have unimpeded access to the northern territories. Dr. von Gernet testified that some scholars have suggested that the whole reason for this warfare was so that the Iroquois could gain access to the beaver hunting grounds in Ontario. Dr. von Gernet referred to recent scholars who have brought forth arguments that involve other reasons for this warfare. Dr. von Gernet felt that it is unlikely that a purely economic incentive was involved in this kind of warfare. However, in my view, it is sufficient that expanding trade was a primary factor in this kind of warfare.

     The Iroquois were now in a position where they could exploit the area to the north of Lake Ontario and the St. Lawrence Valley for the first time unimpeded, without any Algonquin or Huron reaction. While this was happening in the early 1650s, a great deal of factional strife broke out among the Five Nations Iroquois. This factional strife was related primarily to the position of the Mohawks in the trade. The Mohawks had virtual hegemony in this trade because they were in the strategic position where others were passing through their territory to trade with the Dutch.

     According to Dr. von Gernet, another source of tension was that the Iroquois, during this period, were vying with one another for the dispersed Huron people. It was a common practice, for groups whose population had been decimated by war and disease, to supplement their population by adopting prisoners.

     European nations engaged in warfare in order to control or extend their trade. This was legitimate at that time. My view is that if it was legitimate for European nation states, I should not hold the aboriginal people to a different standard simply because the Iroquois trading network was extended by war. I note that in Adams, supra at paragraphs 45 and 46 the Supreme Court of Canada recognized that aboriginal fishing rights could be established by evidence of presence in the area in pursuit of raiding expeditions. However, the plaintiff did not identify the nature of the extended trade network or the people with whom the Iroquois were trading. Furthermore, while one might be obliged to fish in order to victualize an army, it is difficult to see how an army would engage in trade with their enemies while in pursuit of them.

     It is significant, however, that the warfare described by Dr. von Gernet was commercially motivated. The evidence demonstrates that one of the major concerns of the Mohawks during the 17th century was securing control over and expansion of trade territory and trade routes, particularly in the territory that is now on the Canadian side of the boundary. I find the Mohawks frequently travelled across what became the Canada/United States boundary in pursuit of trade.

MONTREAL-ALBANY TRADE

     While experts gave different characterizations of "licit" or "illicit" to the Montreal-Albany trade, all agreed that the community of Kahnawake participated in the trade network between Montreal and Albany, New York. As Dr. von Gernet admitted, the Montreal-Albany trade took place despite the fact that aspects of it were characterized as illicit by the French. Frontenac, a contemporary observer and a possible participant in the trade, wrote that the trade took place with the participation of the Mohawks of the community of Kahnawake and those living in communities in New York and that the French were unable to stop this trade:

The only difficulty, Sire, was to know, before it would please Your Majesty so to prescribe, how to proceed with the Savages and principally with the Loups and the Iroquois of the five large villages who have been engaging in this trade for a long time, by means of those of their nation who live at the Sault St. Louis near Montreal, which they use as a warehouse for this traffic, as I have already had the honour of informing Your Majesty, but which I do not think it necessary until now to oppose other than by protests, for fear that having them arrested with their merchandise would only give rise to a breach that the country would not be in a position to sustain.

(Frontenac to the King, supra, emphasis added)

     Dr. von Gernet did not agree with Frontenac's explanation that the Five Nations had been trading for a long time because there had been six decades of warfare among the Five Nations. He stated that Frontenac was engaged in trade himself and was trying to impress the king so he could keep his position as governor. Frontenac's earlier letter to the King of November 6, 1679 clearly indicates that there was active trading between the Five Nations Iroquois and the French:

I have heard from Jesuit Fathers and other Missionaries that General Andros [the official in charge of the English at Fort Orange] was underhandedly soliciting the Iroquois to break with us and planned to convene an assembly of the five nations to whom he would propose things thought to be strange and that could disrupt our trade with them, as well as that with the Outaouacs and the nations to the north and west.

(Exhibit P 41A p. 1, fifth paragraph)

Although it was open to Dr. von Gernet to speculate on Frontenac's motives, I do not agree that the reference to "trade for a long time" should be disregarded.

Dr. Venables, in his report, quotes from Mr. Douglas E. Leach who, in his view, is the preeminent North American scholar specializing in colonial North America military history who is also specialized in the Indian-White relations. He quotes from Mr. Leach's book Arms for Empire: A Military History of the British Colonies in North America, 1607-1763 where he notes that:

Of all the many Indian tribes scattered along these expanding frontiers and therefore affected by the imperial conflict, five in particular were destined to play a crucial role. These were the so-called Five Nations of the Iroquois Confederacy, whose home territory [during the colonial period, after contact] extended through New York from the upper Hudson River west to the Genesee. The geographical location of this loose confederation athwart the crossroads of the western fur routes and the lines of communication from both Albany and Montreal to the Great Lakes gave the Iroquois a remarkable opportunity. Both the English and the French could profit tremendously from their friendship and support; both feared their hostility. However, the French and their Indian allies had long since earned the enmity of the Five Nations, while the English of New York were so fortunate as to inherit from their Dutch predecessors a mutually advantageous trade relationship with them. This meant that during most of the colonial period, the Five Nations, sometimes singly and sometimes in concert, tended to support the British and oppose the French in order to protect their own vital interests.

[footnote omitted]

     It is also interesting to note the comments of Cornelius Jaenen, in The French Relationship with the Native Peoples of New France and Acadia (Ottawa: Indian and Northern Affairs, 1984) one of the sources used by Dr. von Gernet who states at page 140:

The crux of the problem was that the Native people were not bound by French mercantilist directives, and they have the right to trade with anyone, including the English. When the French seized bales of fur being carried illicitly to Albany, the plea invariably was that they belonged to the "domiciled natives" of either the Jesuit or the Sulpician reserve near Montreal, who enjoyed freedom of trade.

The firm of Neret and Gayot, which held the lease on the fur trade monopoly in 1715, was obliged to repay to the Sault St. Louis Iroquois the duties they charged them. A clause had been written into the Treaty of Utrecht (1713) confirming the Iroquois right to trade freely.

     I find that the trade could not have been all illicit since the French would not have insisted that the duty be repaid to the Sault St. Louis Iroquois by virtue of Article XV of the Treaty of Utrecht. Dr. von Gernet admitted there was a "licit" trade between Montreal and Albany, although he qualified it as limited to peltry that the Kahnawake Mohawks had hunted and goods that they actually used. He distinguished the fur trade as trade which involves European goods from "aboriginal trade which involves trade between aboriginal groups in goods that are non-European in nature". The defendant's view was that the fur trade was a response to the European presence and, by definition, cannot be projected back into prehistory. In my view, a north-south trade existed prior to the European presence and after the arrival of the Europeans, the trade was expanded to include furs.

     The major Iroquois participants in the Montreal-Albany trade were the Mohawks living in Kahnawake and those living in communities in New York. It was Mohawks from these particular communities who established a permanent settlement in Akwesasne between 1747 and 1755.

     According to Dr. von Gernet, by the end of the 17th century, the Iroquois in the Mohawk Valley were losing control over the fur trade. The fur trade over the entire colonial period inexorably moved westward. Dr. von Gernet testified that in Albany, which was on the Hudson River, just south of where the Mohawk River emptied into the Hudson, there were merchants who were involved in the fur trade. These Albany merchants decided that they would by-pass the Iroquois who usually would bring furs to Albany through Iroquois territory by obtaining furs from Montreal merchants.

     Dr. von Gernet testified that the Montreal merchants received cheaper British goods which they used to obtain peltry from the western Indians. The Montreal merchants were getting their furs from the west, either through trade directly with aboriginal peoples bringing these furs to Montreal or through the coureur des bois and later voyageurs who actually went into the western posts and obtained furs there and brought them back to Montreal. The Montreal merchants could not get as many furs for the French goods as they could get for the British goods. This provided an economic incentive for the Montreal merchants to actually get British goods from the Albany merchants for their furs and then use those goods in the western fur trade.

     Dr. von Gernet did agree, however, that Kahnawake Mohawks participated in this Montreal-Albany trade but primarily as carriers. Dr. von Gernet added, however, that in the late 17th century, particularly in the 1670s, there is some evidence that they may have in fact engaged in some of this trade themselves, but either way the majority of these furs were actually going to merchants in Albany and they were being purchased in Montreal from other western Indians. The Albany merchants, who used to get their furs from the Iroquois, by-passed the Iroquois and they got them directly from Montreal. The Iroquois lost control of the trade and asked the British to stop it. Dr. von Gernet stated that the trade was "illicit" because both French and British officials were eventually opposed to it.

     According to Dr. von Gernet, the British feared that if they did not stop the trade, there would be more defections from the Iroquois to the French. They had a strategic interest in maintaining the Iroquois in their existing locations. The Iroquois were opposed to this trade, on the grounds that it increased defections and squeezed out the Mohawks and the fur trade. The British also sought to prohibit the trade in order to keep the Iroquois allied with them. The French sought to stop the trade since it deprived the treasury of export duties.

     Dr. von Gernet stated that there were exceptions to the illicit trade at times. The French tried to ensure that people in Kahnawake could pass through with their own personal possessions. There was a limited number of goods that went back and forth whose movement the French instructed their people not to stop. At page 155, von Gernet quotes from Jaenen, supra:

... The local Governor of Montreal should also assure himself that only goods for the personal use of the reserve residents were imported. The local authorities agreed to these controls, saying they would "continue to give the Natives to understand their canoes bound to and from Orange [Albany] are searched only to prevent the French from committing fraud" and that they should bring back only "goods of the quantity and quality used by them". It was common knowledge that these consignments included English trade goods suitable for the western fur trade and luxury goods for the Montrealers, including the religious communities.      [Footnote omitted]

     I find that it was a regulated trade that was intended to ensure that abuse would not occur and that large quantities of trade goods did not become the basis of an illicit trade. Despite Dr. von Gernet's testimony that the Iroquois gradually lost control of the fur trade, I find that they were active participants.

     According to Dr. Venables traders from the newly settled Akwesasne immediately got involved in the trade. Dr. Venables stated in his report at page 95:

The Akwesasne Mohawks carried the furs of a wide variety of animals to the English at Albany and returned to Canada -- New France -- with English manufactured goods, working through and for English and French traders. The English trader Robert Sanders, in 1753, was aware that his French Canadian connections were being pressured to cease their trade with the English. So he sent letters of account back to his French connections with their names designated by a pictorial code which only he and his Mohawk traders knew. Sanders thus wrote to his French contact at Akwesasne as Monsieur Partridge -- Akwesasne being a Mohawk word for the place where the partridge dwells or drums. Sanders' letters of account thus began: "Monsr: [Partridge]" -- a "partridge" being drawn after "Monsr" (Monsieur).

Despite the setbacks to the Caughnawaga and Akwesasne Mohawks caused by their siding with the French in the colonial war of 1754-1763, both they and the English readjusted to trade again after the French surrendered Canada and the English found themselves dominant in both Albany and Montreal: the two locations most favored by the Caughnawaga and Akwesasne Mohawks.      [footnote omitted]

     Dr. von Gernet disagreed with Dr. Venables and testified "I have found no evidence whatsoever that Akwesasne was involved in this trade". I prefer the evidence of Dr. Venables in this regard. The fur trade continued to be significant after the colonial war and increased until 1802. Thereafter Canadian exports of furs both to Great Britain and the United States declined.

     I accept that the American did not take over the fur trade in the United States until after the signing of the Jay Treaty because up until that time the British had been able to hold posts in what was called "the Old Northwest" which included Ohio, Indiana, Illinois, Michigan, Wisconsin and Minnesota.

     As Dr. Venables stated in his report at page 97:

The 1815 Treaty of Ghent did not protect the right of white Canadians to cross into the United States in free trade ...

Only aboriginals could cross the borders freely. The hopeful revival of fur trade in the east did not occur but it did become predominant west of the Great Lakes. I do not agree with the defendant's submission that the Montreal-Albany fur trade was a practice that arose solely in response to the arrival of Europeans. There may not have been prior fur trading but it seems highly unlikely that the Mohawks would start trading immediately upon the arrival of the Europeans if they had not been involved in some prior trade. The Iroquois had demonstrated since the 1640s that they were more than willing to go beyond their homelands to secure furs. Nor do I agree with the defendant that the characterization of the Montreal-Albany trade as illicit is significant. In my view, much of the trade was licit and the most important element for the present case is the evidence that the Mohawks were involved in the trade.

     The Montreal Albany trade is not the only evidence of continuous trading and travelling with goods over what is now the Canada-United States border. I find that the evidence of Ms. Holmes demonstrates a continuing effort by the Mohawks of Akwesasne to participate in their border-crossing activities throughout the nineteenth and twentieth centuries. Ms. Holmes testified that during the second half of the nineteenth century, Customs officials wrote several letters which stated that the Indians at Akwesasne could carry items across the border, and that they were allowed to bring in duty-free goods described as being for their own use, family consumption and goods of Indian manufacture.

     Ms. Holmes concluded in her testimony:

The general situation to the turn of the century then is that Customs has made an agreement that people at Akwesasne can transport goods duty-free. There is some indication, as you see written in the report, that there is an effort to restrict the duty, to restrict the privilege to domestic or goods for their own personal use and not to be extended.

In regard to the twentieth century, Ms. Holmes testified:

...basically, until around the twenties and thirties what we see from the correspondence is that there's a considerable amount of inquiry regarding the rights of Indians to bring goods into the country without paying duty. It indicates to us or it shows us that the Indians believed that they still had the right to bring the goods in duty free and that they claimed that they have been doing it for quite some time.

     As Ms. Holmes pointed out, the understanding by the Mohawks at the turn of the century was that they were not liable to pay duty on goods which they brought across the border in Akwesasne.

Some of the interesting things on the aboriginal side that they're saying is, for example, the quote on page 33, this gentleman Peter White who is a clerk for the St. Regis Council, he's making an inquiry, and in his 1906 inquiry he says:

The old people claim that they never paid no duty before, they say the boundary line is for the white people, that the Indians are not supposed to pay any duty on stuff we buy on the American side unless they are taking it over to where the white people lives.

It's an interesting concept because he's expressing this concept that the boundary line is something that as a Mohawk or as an Indian person should not affect him or his activities, that the boundary line is for white people. It's a demarkation between the United States and Canada.

     Ms. Holmes characterized the state of Canada's policy and practice on the matter of duty-free border crossing by First Nations during the twentieth century as follows:

I think that much the same as we saw before the turn of the century there is certainly an inconsistency between the stated policy and the practice and at times there is inconsistency in the policy itself. The result is that for fairly long periods of time there is a significant amount of activity where aboriginal people are bringing goods across the border with paying duty and are not challenged.

     I find that Ms. Holmes' evidence demonstrates that the official policy of the government throughout this period was to not allow the duty-free border crossing, however, the Mohawks of Akwesasne frequently travelled over the border with goods and often, those goods were not subject to customs duties by the local customs officers. Further, from time to time officials from Revenue Canada issued directives to local customs officers not to collect customs duties from aboriginals.

     I accept the evidence of Elder Benedict, who was born in 1918, that the Akwesasne Mohawks travelled frequently across the border with goods while he was growing up. I also accept the evidence of Elder Benedict that gift-giving has been and remains an important element of Mohawk custom.

     The plaintiff's witnesses testified that because of the unique geographical location of the Akwesasne territory, the Mohawks of Akwesasne frequently cross and recross the Canada-United States boundary with goods, sometimes, according to Chief Mitchell, several times a day. I accept this evidence.

     This evidence of continuity must be assessed and examined in light of the following statements by the Supreme Court of Canada in Van der Peet, supra at paragraphs 64 and 65:

The concept of continuity is also the primary means through which the definition and identification of aboriginal rights will be consistent with the admonition in Sparrow, supra at p. 1093, that "the phrase 'existing aboriginal rights' must be interpreted flexibly so as to permit their evolution over time." The concept of continuity is, in other words, the means by which a "frozen rights" approach to s. 35(1) will be avoided. Because the practices, traditions and customs protected by s. 35(1) are ones that exist today, subject only to the requirement that they be demonstrated to have continuity with the practices, customs and traditions which existed pre-contact, the definition of aboriginal rights will be one that, on its own terms, prevents those rights from being frozen in pre-contact times. The evolution of practices, customs and traditions into modern forms will not, provided that continuity with pre-contact practices, customs and traditions is demonstrated, prevent their protection as aboriginal rights.

I would note that the concept of continuity does not require aboriginal groups to provide evidence of an unbroken chain of continuity between their current practices, traditions and customs, and those which existed prior to contact. It may be that for a period of time an aboriginal, for some reason, ceased to engaged in a practice, tradition or custom which existed prior to contact, but then resumed the practice, tradition or custom at a later date. Such an interruption will not preclude the establishment of an aboriginal right. Trial judges should adopt the same flexibility regarding the establishment of continuity that, as is discussed, infra, they are to adopt with regards to the evidence presented to establish the prior-to-contact practices, customs and traditions of the aboriginal group making the claim to an aboriginal right.

     I find that the plaintiff has demonstrated that the events of March 22, 1998 have continuity with the activities of his ancestors in the Mohawk Valley prior to contact with the Europeans.

SUMMARY OF FINDINGS ON ABORIGINAL RIGHT

     I will summarize my findings in respect of the aboriginal right claimed by the plaintiff in accordance with the foregoing. I must be able to conclude that the aboriginal right asserted is an integral part of the distinctive society of the Mohawks now and at the time of first contact. The plaintiff submits that in the 1600s, the Mohawks and the Iroquois had a distinct society, their institutions, language and how they did things were different from the neighbouring aboriginal nations. It is not necessary for me to show that the rights sought are distinct, but rather I must be satisfied that the society is distinctive and that the right was an integral part of that aboriginal society.

     As I stated above, the right that the plaintiff is claiming is characterized as a right to pass and repass freely across what is now the Canada - United States boundary with goods for personal and community use without paying customs duties. The claim is also to bring these goods across the Canada - United States boundary for small, non-commercial scale trade with other First Nations.

     The defendant argued that the territory that became Akwesasne was not controlled by the Mohawks and was not used for trade prior to European contact i.e., in the early 1600s. Dr. von Gernet's testimony was not that the Mohawks never travelled into what is now Canadian territory. Rather, he simply disputed that the territory was "regularly" used by the Mohawks. However, in Adams, supra, the Supreme Court of Canada clarified that it is not necessary for aboriginal rights to be connected to aboriginal title to land. Lamer C.J. explained at 14:

...Where an aboriginal group has shown that a particular activity, custom or tradition taking place on the land was integral to the distinctive culture of that group, then even if they have not shown that their occupation and use of the land was sufficient to support a claim of title to the land, they will have demonstrated that they have an aboriginal right to engage in that practice, custom or tradition. The Van der Peet test protects activities which were integral to the distinctive culture of the aboriginal group claiming the right; it does not require that that group satisfy the further hurdle of demonstrating that their connection with the piece of land on which the activity was taking place was of a central significance to their distinctive culture sufficient to make out a claim to aboriginal title to the land. Van der Peet establishes that s. 35 recognizes and affirms the right of those peoples who occupied North America prior to the arrival of the Europeans; that recognition and affirmation is not limited to those circumstances where an aboriginal group's relationship with the land is of a kind sufficient to establish title to the land.

     Little evidence put forth by the plaintiff to demonstrate that the territory that is now known as Akwesasne was part of a specific trade route used by the Mohawks prior to European contact. I find, however, that the evidence presented by the plaintiff does demonstrate that trade was an integral part of Iroquois and Mohawk custom and tradition. It further demonstrates that the Mohawks from the Mohawk Valley freely travelled across what is now the Canada - United States boundary into the territory now known as Akwesasne for the purposes of hunting and fishing and to engage in commercially-motivated warfare.

     In my view, however, to establish the rights claimed, the plaintiff must prove that the Mohawks either traded across the Canada - United States boundary in the Akwesasne area or obtained goods on one side of the boundary and traded those goods with other First Nations on the other side of the boundary. Furthermore, I must be able to conclude that this practice was integral to the Mohawks and was being exercised by using the territory on the Canadian side of the boundary in the Akwesasne area.

     Dr. von Gernet strongly opposed the idea that the Akwesasne territory was used for purposes of travel, diplomacy and trade. He testified:

Since hostile raiding was by far the most important motivation Mohawk travel outside their protohistoric territories ... the 'diplomacy, trade and commerce' mentioned at paragraph 25 of the statement of claim seems rather incongruous. There is no evidence whatsoever for such peaceful activities during this period.

     Furthermore, in response to a question as to whether trading was an element of the practice, custom or tradition integral to the distinctive culture of the Mohawks prior to European contact in an area that today would require crossing the Canada - United States boundary, he testified:

I can say, with some confidence, no, given that caveat with respect to the current international boundary. As an anthropologist, although I have no direct evidence of trade among Iroquoian peoples in the prehistoric period that could be construed as being an integral part of their society, I would be a fool to deny that people did not trade. Surely, trade is something that people who are in a barter economy do. But if location is important, if where it is that they were engaged in these trading activities, and certainly what is now the Canada-U.S. border, or the St. Lawrence Valley, to use a geographical border, I would have to say not to your question.

     I prefer the evidence of Chief Mitchell and Dr. Venables on this issue. The territory in and around Akwesasne was used by the Mohawks for the purposes of travel, diplomacy and trade prior to the arrival of the Europeans.

     As the Supreme Court has directed, the aboriginal right being claimed must be of central significance to the aboriginal society in question. In my view, the evidence demonstrates that the right that the plaintiff claims is a practice that is integral to the distinctive culture of the Mohawks of Akwesasne. As Professor Johnston testified and I have already noted:

Well, let's put it this way, trading and making war came as easily to the Iroquois as living and breathing. When they weren't making war, they were usually engaged in trading. Trading was certainly one of the customs, ritualized customs and activities of the Iroquois. When you talk about Iroquois you have to talk about trade and commerce. It's central to their soul, just as war was. War, or course, stemmed out of trade and trade came out of war.

So to say that the Iroquois were not trading with their southern brethren is to suggest that they had dispensed with one of the basic features of their culture. They'd just trade to live.

Trading and travelling freely across the border made the Mohawk society what it was. The activities of the Mohawks centered around travel, diplomacy and trade. This activity was integral and not incidental to Mohawk society.

     There is also archeological evidence demonstrating that trade occurred prior to the arrival of Europeans. I find it particularly noteworthy that the early treaties entered into by the Mohawks and other Iroquois were largely concerned with trade. Upon the arrival of the Europeans, the Mohawks immediately took advantage of their geographical position to maximize their participation in trade and engaged in warfare to expand the territory over which they could control access to trade goods and trade routes. The evidence demonstrates that the Mohawks did not begin trading as a response to the Europeans. Trade routes and trade goods may have adapted to the new European market, however, I find that the Mohawks were trading long before the arrival of the Europeans and that they travelled in pursuit of trade and trade goods before the seventeenth century. This trade was not an incidental activity for the Mohawks. Trading is one of the things that made the society what it is.

     The descendants of Mohawks from the Mohawk Valley moved to territory in what is now Canada partly for reasons related to trade and eventually established themselves in Akwesasne in or around 1755. I accept that the Mohawks of Akwesasne immediately became involved in trade and prior to the establishment of Akwesasne, the Mohawks at Kanawake participated in the Montreal-Albany fur trade that crossed the Canada - United States boundary.

     With respect to the use of the territory in and around Akwesasne for the purposes of trade, I am satisfied that the Mohawks travelled across the boundary from their homeland in the United States into Canadian territory for trade related purposes prior to the arrival of the Europeans. The Mohawks crossed the boundary with their goods for personal and community use without having to pay duty or taxes on those goods. Whatever goods they obtained either by raiding or by hunting and fishing could be freely brought back across the border. There is little direct evidence that the Mohawks, prior to the arrival of the Europeans, brought goods from their homeland and traded with other First Nations on the Canadian side of the boundary, however, I am satisfied that Mohawk society is distinctive, that trade was an integral part of Mohawk tradition and that the Mohawks travelled freely across the border to expand trading territory and to obtain goods for the purposes of trade. The evidence given by Ms. Holmes in her report and testimony confirms the consistent and continuing assertions by the Mohawks of Akwesasne of their rights and continuing attempts to exercise their rights. I find that the plaintiff and the Mohawks of Akwesasne have established an aboriginal right to pass and repass freely what is now the Canada-United States boundary with goods for personal and community use and for trade with other First Nations.

     I will now review the evidence surrounding the plaintiff's claimed treaty rights.

TREATY RIGHTS

     The leading cases from the Supreme Court of Canada on what constitutes a treaty are R. v. Simon, [1985] 2 S.C.R. 387 and R. v. Sioui, [1990] 1 S.C.R. 1025. In Sioui, supra at 1043 Lamer J. (as he then was) set out the constituent elements of a treaty. He first referred to and confirmed the Court's analysis in Simon.

In Simon this Court noted that a treaty with the Indians is unique, that it is an agreement sui generis which is neither created nor terminated according to the rules of international law. In that case the accused had relied on an agreement concluded in 1752 between Governor Hopson and the Micmac Chief Cope, and the Crown disputed that this was a treaty. The following are two extracts illustrating the reasons relied on by the Chief Justice in concluding that a treaty had been concluded between the Micmacs and the British Crown (at pp. 401 and 410):

In my opinion, both the Governor and the Micmac entered into the Treaty with the intention of creating mutually binding obligations which would be solemnly respected. It also provided a mechanism for dispute resolution.

         ...

The Treaty was an exchange of solemn promises between the Micmacs and the King's representative entered into to achieve and guarantee peace. It is an enforceable obligation between the Indians and the white man and, as such, falls within the meaning of the word "treaty" in s. 88 of the Indian Act.

From these extracts it is clear that what characterizes a treaty is the intention to create obligations, the presence of mutually binding obligations and a certain measure of solemnity.

     [emphasis added]

     The Supreme Court of Canada has held that formalities are of secondary importance in deciding on the nature of the document containing an agreement with the Indians. Lamer J. in Sioui, supra at 1045 stated that the factors in determining the existence of a treaty are the same ones that assist in determining the intent of the parties to enter into a treaty. He stated:

... Among these factors are:

1.      continuous exercise of a right in the past and at present,

2.      the reasons why the Crown made the commitment,

3.      the situation prevailing at the time the document was signed,

4.      evidence of relations of mutual respect and esteem between the negotiators, and

5.      the subsequent conduct of the parties.

     The plaintiff submits that each of the Treaty of Peace and Friendship concluded at Utrecht in 1713 (hereinafter the Treaty of Utrecht), the Jay Treaty of 1794, the Treaty of Ghent of 1814 and five meetings held between the British Crown and the First Nations is a source of recognition and protection of pre-existing rights, an independent source of treaty rights, a source of positive protection for their aboriginal rights, a source of positive duties and obligations on the British Crown and act as a constraint on the Crown. A treaty can be both a source of a negotiated right and/or evidence of a pre-existing aboriginal right.

     The plaintiff further submits that these treaties and meetings demonstrate a clear and consistent course of European conduct and particular conduct by the British Crown to assure First Nations that boundary lines drawn by and between European powers were not intended to prejudice any rights of the First Nations. According to the plaintiff, this consistent course of Crown conduct creates a constraint on the Crown in the nature of estoppel in international law and precludes the Crown from now denying aboriginal and treaty border crossing rights or infringing upon those rights.

     I note that no aboriginal nations or groups were parties to any of these treaties, but this is not necessarily conclusive. I will briefly review the relevant facts concerning the aforesaid three treaties and five meetings.

TREATY OF UTRECHT 1713

     The Treaty of Utrecht brought to a conclusion the War of Spanish Succession fought on one side by France, Spain and Bavaria and on the other side by England, the United Provinces and the Hapsburg Empire. It is interesting that there were two treaties of Utrecht in 1713. The provision relied on by the plaintiff is found in the Treaty of Peace and Friendship rather than the Treaty of Navigation and Commerce. However, on cross-examination, Mr. Graves, the defendant's expert, conceded that it was logical, given the Indian nations' military role and status as allies, that provisions respecting them would be found in the Treaty of Peace and Friendship. Article XV of the Treaty of Utrecht 1713 is the relevant article.

TREATY OF UTRECHT - ARTICLE XV

The Subjects of France inhabiting Canada, and others, shall hereafter give no Hindrance or Molestation to the five Nations or Cantons of Indians, subject to the Dominion of Great Britain, nor to the other Natives of America, who are Friends to the same. In like manner, the Subjects of Great Britain shall behave themselves peaceably towards the Americans, who are Subjects or Friends to France; and on both sides they shall enjoy full Liberty of going and coming on account of Trade. Also the Natives of those Countrys shall, with the same Liberty, resort, as they please, to the British and French Colonys, for promoting Trade on one side and the other, without any Molestation or Hindrance, either on the part of the British Subjects, or of the French. But it is to be exactly and distinctly settled by Commissarys, who are, and who ought to be accounted the Subjects and Friends of Britain or of France.

     Britain and France guaranteed that "the Five Nations or Cantons of Indians, subject to the Dominion of Great Britain", and other First Nations who were their allies "the full Liberty of going and coming on account of Trade" without "any Molestation or Hindrance".

     Mr. Graves emphasized the last sentence in Article XV which reads:

... But it is to be exactly and distinctly settled by Commissarys, who are, and who ought to be accounted the Subjects and Friends of Britain or of France.

     Two of the plaintiff's expert witnesses omitted reference to this sentence in their reports. The plaintiff submitted in argument for the first time that the French version, which was the original version of the Treaty, referred to the future tense as opposed to the present tense. In light of the other paragraphs of the Treaty that are of somewhat similar language and the lack of expert testimony, I am unable to accept the French version as being different from the English version. Accordingly, in my view, Mr. Graves is right when he says that it makes the exercise of the rights guaranteed under the first two sentences of the article conditional on the prior identification by commissioners as subjects and friends of France and Britain. In any event Article XV seems somewhat neutral as far as granting any rights with respect to immunity from duties or taxes. Mr. Graves in his report at page 7 stated:

To sum up, Article XV addresses a number of issues. First, it provides for the cessation of hostilities between the North American colonies of Britain and France and their respective Indian allies. Without a cessation of hostilities, trade is unthinkable. Secondly, it permits these same Indian allies to enter the colonies of either nation for the purposes of trade, a permission essential to the continuance of the fur trade. Third, it grants the same privilege to the white North American subjects of both nations, again a freedom of movement essential to continuance of the fur trade. Finally, the article stipulates that this trade is to be subject to regulation as agreed upon by representatives of both France and Britain.

     In my view, the clause relates strictly to permitting the Five Nations to travel without hindrance in pursuit of trade and the clause does not assist us in determining whether or not any duties or taxes could be imposed on such trade.

     The plaintiff submits that Article XV of the Treaty of Utrecht is but one component in a course of Crown conduct that establishes that boundary lines drawn by Europeans were not intended to affect First Nations peoples or their rights and that Crown undertakings were not intended to interfere with those rights. Mr. Graves, however, testified that the context surrounding the Treaty of Utrecht is important. The single largest source of income during this period was excise taxes, customs duties and user fees. In the 18th century, the government wanted to encourage movement, traffic, and commerce but it also wanted to regulate that commerce to generate revenue.

JAY TREATY 1794 AND COUNCILS

     The Jay Treaty was negotiated to settle outstanding problems between Britain and the United States that dated from the closing of the Revolutionary War by the Treaty of Paris in 1783. Before considering Article 3 of the Jay Treaty the plaintiff's experts sought to place it in historical context. According to the plaintiff's experts, the historical context of the Jay Treaty essentially involved European powers vying for alliances with First Nations. These diplomatic efforts consisted largely of interfering as little as possible with, and ensuring the continuation of First Nations societies and economies, including trade. The plaintiff claims that the conduct of the parties shortly before, contemporaneous with and shortly after the signing of the Jay Treaty demonstrates the intention to establish binding and lasting treaty arrangements.

     Dr. Venables explained that the background of the Jay Treaty involved a quid pro quo. Britain and the United States wished to avoid further conflict on the western United Sates frontier and did not wish to have the Six Nations join the warriors of Ohio. In his report, he expressed the situation as follows:

... In the context of the times, the free trade provisions were a relatively inexpensive method by which both Great Britain and the United States avoid antagonizing Indian nations any further ...

     The defendant's experts put the Jay Treaty and its surrounding meetings in a similar context, however, the defendant claimed that Britain, in negotiating provisions for the First Nations in the Jay Treaty, and in holding meetings with the First Nations to explain the content of the Treaty, was concerned only with those First Nations living in the North West on the American side of the newly-created boundary. The defendant's experts testified that Britain was not concerned with First Nations living on what is now the Canadian side of the boundary and was therefore not concerned with the Mohawks of Akwesasne. Mr. Graves testified that in the period leading up to the Jay Treaty, after the Revolutionary War, the Six Nations, and their Algonkian neighbours to the west in the area of the Ohio River, were angered by the Treaty of Paris which, containing no mention of the Indian peoples, placed their lands within the new boundaries of the United States. British officials feared that their former allies would attack British territory in retaliation. To ease the situation, members from the Six Nations living on American territory were offered land to settle on British territory at Grand River and the Bay of Quinte. A number of British trading posts were retained on the American side of the new boundary. Mr. Graves described a growing tension between the First Nations in American territory and the American government over the next decade. The Six Nations living in New York and the Ohio nations formed the "northwest confederacy".

     The first event put forth by the plaintiff to explain the context of the Jay Treaty is a speech given by Lord Dorchester in 1791. Lord Dorchester's speech was addressed to the "Chiefs and Warriors, Deputed by the Confederated Indian Nations of the Ottawas, Chippeways, Potawatamies, Hurons, Shawanese, Delawares, Turturs, and the Six Nations." Lord Dorchester was answering an address from the Confederated Indian Nations. He stated in part:

You have told me, there were people who say; that the King your Father when he made peace with the United States, gave away your lands to them.

I cannot think that the government of the United States would hold that language, it must come from ill informed individuals.

You well know that no man can give, what is not his own.

When the King made peace and gave independence to the United Sates, he made a Treaty in which he marked out a line between them and him; this implies no more than that beyond this line he would not extend his interference.

     ...

But Brothers, this line, which the King marked out between him and the States even supposing the Treaty had taken effect, could never have prejudiced your rights.

The Kings rights with respect to your territory were against the Nations of Europe; these he resigned to the States. But the King never had any rights against you but to such parts of the Country as had been fairly ceded by yourselves with our own free consent by Public convention and sale. How then can it be said that he gave away your lands?

     Professor Johnston testified that Lord Dorchester was acknowledging the creation of the boundary in 1783 and was stating that the boundary did not apply to Indians. In Professor Johnston's opinion, Lord Dorchester was referring not only to territorial rights but to the rights that would be expressed in the Jay Treaty, three years later - the right to pass and repass freely with goods. Professor Johnston, stated however, that Lord Dorchester's speech was addressed to the Indians in the American Northwest.

     Ms. Holmes testified that the term "Confederated Indians" is used to encompass several different collections of people so it is unclear from where the nations present at this meeting came. She stated that Lord Dorchester addressed the fact that the Indian Nations felt that they had been abandoned by the British and that because of the representations that Americans had made to them, the British had given up their lands. Lord Dorchester assured the Indians that the British had no claim over the land in question. He also stated that the boundary line was not meant to affect the Indian Nations. At the end of the speech, Lord Dorchester stated:

You see, that the King has not forgot you, that he is solicitous of your comfort, and that he has ordered his servants to take care of you, and to give you every mark of his bounty and friendship.

     Ms. Holmes testified that this meant generous trade with all of the Indians. At this time, there were Six Nations at Grand River, Kahnawake, Akwesasne and Kanesatake. The people at the conference were chiefs and warriors that were deputed to attend. Ms. Holmes also stated that a meeting held with the Seven Nations in 1794 indicates that the Seven Nations and therefore, the community of Akwesasne was represented at the meeting in 1791. At the 1794 conference when he addressed the Seven Nations, Lord Dorchester made reference to a meeting "just before my last departure for England." The meeting he was referring to was that held in 1791. In my view, Lord Dorchester was only referring to trade with the British on the Canadian side of the border.

     Mr. Graves testified that Lord Dorchester was telling the Indian Nations assembled at the Council that the King would not extend his influence into American territory with respect to their land. Joseph Brant was there, representing the Six Nations resident in British territory, the other nations were from the Northwest Confederacy. Brant also spoke for the Northwest Confederacy. Mr. Graves stated that it was natural for the Northwest Confederacy to choose Brant as their speaker as he was best known to the white people on both sides of the border. His cause was not seen as a Six Nations' cause. The American government in 1791 sent an official emissary to the Six Nations resident in American territory at Buffalo Creek, to ask representatives from that confederacy, (meaning the Six Nations resident in American territory) to travel to the west on a peacemaking mission. This request was rejected. However, at Brant's suggestion, the Six Nations decided to send their own delegation. Brant headed this delegation and arrived at the foot of the Maumee Rapids (near present day Maumee, Ohio) in June 1791 to attend a meeting between the Six Nations and the Ohio nations. By that time, the latter group had formed a loose confederacy which historians have commonly termed the "northwest confederacy". Brant found the northwestern nations to be divided in their opinion and the discussions were made more tense when word came that an American force was advancing. The assembly, therefore, decided to send a delegation to Quebec to find out from Lord Dorchester if the northwest confederacy could expect British military aid. The Americans were not advancing on either the Iroquois resident in Canada or the Iroquois resident in the United States, they were advancing on the Algonkian peoples resident in what was termed the old northwest. There was some urgency about this, so they went to Quebec and told Lord Dorchester that they needed help. Therefore, when Lord Dorchester said "The King could never have given up your rights" he was, from the context, talking about the Northwest Confederacy.

     Mr. Graves stated that there were Iroquois present at the meeting but from the context, the problems being discussed were those of Indians resident on American territory. The Iroquois resident on British territory did not have a problem because they had been given a land grid. The only Indians left who were engaged in active hostilities against the United States were the northwest nations resident on American soil.

     Mr. Graves concluded at page 23 of his report:

In sum, Dorchester's speech of 15 August 1791, which was addressed to delegates from the northwest confederacy and the Six Nations, located on what was now American territory, stated the position of the Crown as he saw it with regard to the events of the previous decade. Dorchester, however, was quite clear that British influence did not now extend into American territory and that the best he could do for the delegates was to offer mediation in their disputes with the American government. When Dorchester told the delegates that the 1783 Treaty of Paris "could never have prejudiced your rights," the unmistakable reference was to these nations' right of pre-emption, not trading rights.

     I accept Mr. Graves' opinion with respect to Lord Dorchester's speech. Although there were Iroquois present, Lord Dorchester was addressing the First Nations residents on American territory.

     The Jay Treaty of 1794 was negotiated between Lord Grenville, the British Foreign Minister and American Chief Justice John Jay. Article 3 of the Jay Treaty provides:

JAY TREATY - ARTICLE 3

It is agreed that it shall at all Times be free to His Majesty's Subjects, and to the Citizens of the United States, and also to the Indians dwelling on either side of the said Boundary Line freely to pass and repass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America (the Country within the Limits of the Hudson's Bay Company only excepted) and to navigate all the Lakes, Rivers, and waters thereof, and freely to carry on trade and commerce with each other.

All Goods and Merchandize whose Importation into His Majesty's said Territories in America, shall not be entirely prohibited, may freely, for the purposes of Commerce, be carried into the same in the manner aforesaid, by the Citizens of the United States, and such Goods and Merchandize shall be subject to no higher or other Duties than would be payable by His Majesty's Subjects on the Importation of the same from Europe into the said Territories. And in like manner, all Goods and Merchandize whose Importation into the United States shall not be wholly prohibited, may freely, for the purposes of Commerce, be carried into the same, in the manner aforesaid, by His Majesty's Subjects, and such Goods and Merchandize shall be subject to no higher or other Duties than would be payable by the Citizens of the United States on the Importation of the same in American Vessels into the Atlantic Ports of the said States. And all Goods not prohibited to be exported from the said Territories respectively, may in like manner be carried out of the same by the Two Parties respectively, paying Duty as aforesaid.

No Duty of Entry shall ever be levied by either Party on Peltries brought by Land, or Inland Navigation into the said Territories respectively, nor shall the Indians passing or repassing with their own proper Goods and Effects of whatever nature, pay for the same any Impost or Duty whatever. But Goods in Bales, or other large Packages unusual among Indians shall not be considered as Goods belonging bona fide to Indians.

No higher or other Tolls or Rates of Ferriage than what are, or shall be payable by Natives, shall be demanded on either side; And no Duties shall be payable on any Goods which shall merely be carried over any of the Portages, or carrying Places on either side, for the purpose of being immediately reimbarked, and carried to some other Place or Places. But as by this Stipulation it is only meant to secure to each Party a free passage across the Portages on both sides, it is agreed, that this Exemption from Duty shall extend only to such Goods as are carried in the usual and direct Road across the Portage, and are not attempted to be in any manner sold or exchanged during their passage across the same, and proper Regulations may be established to prevent the possibility of any Frauds in this respect.

As this Article is intended to render in a great Degree the local advantages of each Party common to both, and thereby to promote a disposition favourable to Friendship and good neighbourhood, It is agreed, that the respective Governments will mutually promote this amicable Intercourse, by causing speedy and impartial Justice to be done, and necessary protection to be extended, to all who may be concerned therein.

[emphasis added]

     The key paragraph with respect to the question before me is the paragraph that reads:

No Duty of Entry shall ever be levied by either Party on Peltries brought by Land, or Inland Navigation into the said Territories respectively, nor shall the Indians passing or repassing with their own proper Goods and Effects of whatever nature, pay for the same any Impost or Duty whatever. But Goods in Bales, or other large Packages unusual among Indians shall not be considered as Goods belonging bona fide to Indians.

     Professor Johnston explained that the British had committed a blunder by ignoring any reference to Indians in the Treaty of Paris of 1783. In his view, the Jay Treaty was a supplementary peace treaty. In his report, Professor Johnston stated that while the final version of the Jay Treaty formally surrendered the western posts to the United States, a British-inspired article was written into the treaty to pacify the confederated nations. Unlike the 1783 Treaty of Paris, the Jay Treaty fully acknowledged the Indians' presence and circumstances. However, as Mr. Mohawk acknowledged, the provision which the Indians in the United States did expect the British to insert in the Paris Treaty of 1783 was to the effect that Britain never claimed ownership of their lands and that the United States were not entitled to claim those lands as their own by means of the Treaty of 1783. Thus, in my opinion the Jay Treaty was not a supplementary peace treaty to the Treaty of Paris.

     Professor Johnston was asked about the meaning of the qualification in the Jay Treaty:

... But goods in Bales, or other large Packages unusual among Indians shall not be considered as Goods belonging bona fide to Indians.

     He responded that:

... if the Indians were to be seen bearing goods that could only belong to others, say, British traders, who were not eligible for the Indian's duty exemptions and who might have been eager to circumvent the regulations in this way. That would constitute a mischief.

     In his report at page 74, Dr. Venables stated:

For the British and their Indian allies, the Jay Treaty would assert through international law what had before been asserted by the presence of British troops in posts such as Oswego and Niagara. For its part, the United Sates gained the concession of the forts. For both Britain and the United States, the absence of a guarantee of Indian free trade across borders would have meant risking a war not unlike the war launched by Pontiac and his followers in 1763 -- that war having been caused by a British strangulation of Indian trading rights.

     Dr. Venables in his report at 55-56, explained the language in Article 3 of the Jay Treaty as follows:

Clearly, in eighteenth century usage, Indians were "traders" not "merchants". The restrictive clause in Article III of the Jay Treaty seems to intend to insure that Indians do not become merchants because they were not citizens of British Canada or the United Sates. Since Indians could not be regulated by either Great Britain or the United States, it behooves both the British and the United States to specifically prohibit Indians from acquiring merchant status -- capable of acquiring massive shipments of goods, acquiring these goods wholesale, on credit, and abroad.

The fact that a "trader" was regarded during eighteenth century North America as someone not engaged in wholesale dealings, not involved in massive purchases on credit, "frequently mobile" indicates how and why Indians, in the English language, were defined as "traders" not "merchants."

     At pages 52 to 54 of his Report, Dr. Venables addressed the wording in Article 3 of the Jay Treaty "with their own proper Goods and Effects of whatever nature". Dr. Venables stated in his Report that at the time of the Jay Treaty, what was "usual" among Indians included a wide range of manufactured goods. The term "usual" is relative to the time period and the specific Indian Nations. At pages 53 and 54, Dr. Venables wrote:

The 1761 "List of Indian Goods" in The Papers of Sir William Johnson, discussed earlier in this report at footnote 89, indicates the wide range of manufactured goods which were already "usual" among American Indians in the mid-eighteenth century. Each year, American Indians adapted more objects from the non-Indian material cultures. Thus what is "usual" would be relative to the year and the specific Indian nation. As an example of how trade had an early impact on what would be regarded as "usual", by 1634 the Mohawks had iron hinges on split plank doors which separated rooms within the interiors of their longhouses.

The term "usual" has thus historically always been a relative term. In this context, at the close of the twentieth century, virtually no object from any material culture around the world would be regarded as "unusual among Indians" at Akwesasne.

Furthermore, in Canada at least since the seventeenth century, goods had been carried by Indian middlemen to Indian nations other than their own so that these goods could be exchanged for locally-hunted fur pelts.

Given the continuing evolution of Indian free trade, the wording of the Jay Treaty also evidently intended to permit payments in goods and/or funds which the Indians obtained as compensation for their work as traders. To permit the continued functioning of the free trade guaranteed to Indians, the Jay Treaty also evidently permitted Indians to carry goods and/or funds which Indians intended to pay to other Indians participating in Indian free trade.      [footnotes omitted]

     Dr. Venables then testified to the Iroquois perspective and how they would have understood the Jay Treaty as involving trade. They understood that:

... just as a war would have been destructive for England and its trade out west, so a war would have been destructive for the Haudenosaunee. They had experienced that war in the American Revolution. They did not want to risk that kind of conflict again.

The English and the United States, on the other hand, used the opportunity to isolate the Five Nations from a possible alliance with the Indians of what is now Ohio.

Dr. Venables explained that the Iroquois at this time were very conscious of the need to open the road of trade in a time of peace.

     Mr. Graves testified that there were two facets of the Treaty of Paris that caused problems and led to the negotiation of the Jay Treaty. First, there was no mention of the Indian Nations of North America in the treaty. Second, although under the terms of the treaty Britain was to give up all her military posts on American territory, she retained seven or eight of these posts. Three of these posts were in New York (Ogdensburg, Oswego and Youngstown); four were in what was at that time called the northwest. The old northwest was roughly Michigan, Ohio and Illinois (Erie), Pennsylvania; Sandusky, Ohio; Detroit, Michigan; and Mackinac Island, Michigan. Britain was to retain these posts until 1796 and this was one of the matters that was negotiated in the Jay Treaty of 1794.

     Mr. Graves stated that Lord Grenville, the British Foreign Minister, First Secretary for Home Affairs, was tasked by the British Government with negotiating a treaty on behalf of Britain. Chief Justice John Jay was given similar instructions from the American government to negotiate a treaty. John Jay realized that if they allowed only the native peoples resident in British territory to cross into the United States, they would lose business and revenue. Therefore, he insisted on a reciprocal agreement. John Jay's instructions were to get an article into the treaty to reduce British influence over Indians living on American territory. Grenville's concern was the continuance of the fur trade. Jay had to settle for a reciprocal article.

     Mr. Graves testified that by Article 3, peltries were exempt from duties, no matter who was carrying them. The meaning of "own proper goods and effects of whatever nature" is expressed in Jay's draft. It permitted Indians to cross the border without paying duty on their personal possessions but commercial goods or goods in quantity for resale ("goods in bales or other large packages unusual among Indians") did not qualify as their personal possessions and were therefore not exempt from duty. Proper goods usual among Indians were handicrafts, Indian goods, raw fur, peltries. Everything else was subject to duty or taxes.

     Mr. Graves stated that this satisfied Grenville's overriding concern that the fur trade continue without hindrance and Jay's concern that there be no loss of customs revenue. Indians could bring peltries and their own personal possessions. The British wanted to allow Indians resident in American territory to cross the border to bring furs to British posts, but nothing else, nothing in commercial quantities, no large bales, because there was a clear fear that this privilege granted to the Indians would be misused by whites and there would be contraband. This is reflected in Simcoe's letter:

... the full power of admitting the Subjects of both Great Britain and the United States into their Territory for the purposes of traffic, yet most assuredly, it never could have been intended that contraband goods should be permitted to pass from the Indian Lands into the Dominion of the respective Powers without being subject to the forfeiture or penalties which each Government might think proper to ordain for the regulation of its Commerce.

[see Simcoe to Hammond, 20 July 1794, in E.A. Cruikshank, ed. The correspondence of Lieut. Governor John Graves Simcoe, vol. II (Toronto: Ontario Historical Society, 1924) at 332]

     According to Mr. Graves, this reflects the goal beginning with the Treaty of Utrecht - to regulate trade. Reciprocity of movement was encouraged for both whites and natives so that they would trade. In turn, the government had more taxable activity. With due regard to the broader historical background of the northwest troubles, the retention of British posts on American territory, the nature of the fur trade, the preparation and intent of Grenville and the British government towards the negotiations to the treaty, the instructions, the intent and the preparation of Chief Justice John Jay and the actual form of Article 3 of the treaty itself, Mr. Graves' conclusion is that the Jay Treaty does not grant a right to Chief Mitchell as a Mohawk of Akwesasne to cross the border with goods without paying duty or taxes. The Jay Treaty was concerned with Indians living in American territory. British officials performed a military threat assessment and determined that the threat was not coming from the native peoples living in British North America after 1783. The threat was assessed as being from native peoples living in what is now American territory who might have felt abandoned. Again, I accept Mr. Grave's evidence in this respect.

     The plaintiff relied on two meetings that were held with First Nations following the Jay Treaty to demonstrate that the rights recognized and affirmed in Article 3 of the treaty were confirmed and accepted by the Iroquois. The first of those meetings was held on August 28, 1795 at Fort Erie. The Crown was represented at Fort Erie by Lieutenant Governor John Graves Simcoe of Upper Canada and Joseph Brant was the speaker for the Six Nations. In my view, the references to the "Present Treaty" are to the Jay Treaty. Lieutenant Governor Simcoe stated:

Brothers: By the present Treaty your rights are guarded, and specifically placed on their ancient footing.

Brothers: I have the Treaty in my hands, as printed in the U. States, it establishes your rights upon the same Basis that had been formerly agreed upon between the French and British Nations, and which I repeated in October last to the Western Indians in the following words, "Children. In the victory over the French Nation, the common Enemy, the interests of your forefather, and of you, their Children were not forgotten, in the Treaty between the English the Conquerors, and the French, it was stipulated that your rights should be preserved, those rights which you enjoy as an Independent People. It was declared that you had a right to go to the English and French fires for the purpose of traffic, and that you had a right inseparable from an independent people to admit the traders of either Nation to your Fires as suited your interest or inclinations".

Brothers of the Six Nations: Upon these principles the present Treaty is established, you have a right to go to the British Settlements, or those of the U. States, as shall suit your convenience, nor shall your passing or repassing with your own proper goods and effects of whatever nature, pay for the same any impost or duty whatever.

Brothers: you see therefore that by the treaty a perpetual and constant communication is secured between you and the King's Subjects and our future Trade and intercourse is guaranteed on the most unrestrained and General footing.

     In my view, Simcoe was making a link between Article 3 of the Jay Treaty and the Treaty of Utrecht. Professor Johnston confirmed that in his opinion the reference to the treaty between the English conquerors and the French was to the Treaty of Utrecht and not to the Peace of Paris of 1763. Furthermore, he was also referring to the rights of the Five Nations to travel freely and to cross the border with their own proper goods without paying duty or taxes on those goods.

     Brant's reply thanked Simcoe for his explanation of the perfidy of the United States and confirmed the continuation of the annual presents ("our Father's bounty") and he requested an increase in the bounty, and then he confirmed his understanding of the treaty that Simcoe had referred to:

Brother: We are happy to hear that the late Treaty has preserved our rights as a free and independent people entire, we hope that we may find better and cheaper articles as we may from time to time want among the British, as we would prefer dealing with them.

     Ms. Holmes testified that the language and ritual performed at the meeting was part of diplomatic protocol. Ms. Holmes noted that the language Governor Simcoe used indicates that the treaty was not creating a new right. Rather, it was guarding a right that he considered to exist, and "placed on their ancient footing". When Simcoe finished and said: "... and it will give me pleasure in any respect, to be the instrument of kindness to all his Indian children", Ms. Holmes testified that he was referring not only to the Six Nations present at the meeting but to all Indians. Professor Johnston stated that at this meeting, Governor Simcoe was addressing the Six Nations from the Grand River but that it is not possible to determine whether those present are from American territory or Canadian territory.

     Ms. Holmes emphasized that Governor Simcoe was acting under instructions from the Duke of Portland, Secretary of State for the Home Department. The Duke wrote to Dorchester, the Governor of Lower Canada and to Simcoe, the Lieutenant Governor of Upper Canada. In the letter to Dorchester he stated:

... I beg leave to draw your Lordship's particular attention to such articles as relate to His Majesty's North American Provinces, and particularly to Lower & Upper Canada, in order that no time may be lost by your Lordship in taking such steps, as are needed.

The particular care and attention which has been paid to the Commercial Interests of the two Canadas both as connected with the American States and the Indians, will be well understood and accordingly duly estimated by your Lordship. To reap however all the advantages that may result from those stipulations and at the same time to obviate the temporary difficulties which such of them as relate to our surrender of the Posts may occasion, are the first objects which will occupy your Lordship's attention.

With this view it will be requisite, I conceive, to use your utmost ... [assertions] to satisfy the Indians that Provision is made not merely for continuing as heretofore but for increasing without the possibility of interruption our present Commercial Intercourse with them to the upmost extent to which it may be capable of being carried.

     Ms. Holmes testified that Portland was drawing to the attention of the two governors in Canada the importance of transmitting the information in the Jay Treaty to the Indian Nations in both Upper and Lower Canada and to facilitate and to encourage the trade with them. At page 170, he stated:

Your Lordship should use your best endeavours in concert and conjunction with Mr. Hammond and Lt. Governor Simcoe for the attainment of an object so advantageous to all parties concerned as the termination of the present hostilities between the American States and the Indians.

Acording to Ms. Holmes, again, he was tying together the notions of peace, alliance and trade and instructing them to facilitate the implementation of the treaty by explaining this to the Indians.

     Portland, in his letter to Simcoe, stated:

I have already remarked in my letter of the 19th of November, of what importance it is at this moment to conciliate the affection of the Indians by every means in my Power. This will be much facilitated by fully explaining to them that Part of the Treaty (when it is made public) which secures and guarantees Our future Trade and Intercourse with them and places both on a more unrestrained and general footing than they could rest upon under the present circumstances, and by convincing them that by having already bound ourselves not to retain any Lands on the American side of the Treaty Line ...

    

He goes on to say how they should be reconciled to the return of the posts.

     Mr. Graves also emphasized the importance of the instructions issued by Prime Minister Portland to Lord Dorchester and Governor Simcoe. In his report at page 54, Mr. Graves referred to the letter from Portland to Dorchester. Portland stated that Dorchester should emphasize to the Indians that the British withdrawal from the disputed posts would not interfere with the Indians' traditional freedom to move to trade with the British but would:

... secure to us and the Indians, both within and without the Line of 1783, the most unrestrained intercourse and communications, and both the power and the means of trading with each other to an extent which is denied to the Americans from the very nature of their situation with regard to the Indians.

     Mr. Graves testified that the nations present at Fort Erie were the Six Nations, both from the Grand River and from western New York. Governor Simcoe described the rights outlined in the Jay Treaty and the Six Nations, through Joseph Brant, a Chief of the Grand River Iroquois responded. Mr. Graves stated that from his response, it is clear that Joseph Brant was speaking on behalf of the Six Nations in American territory. In his Report at page 62, Mr. Graves wrote:

It is clear from these words that Brant was primarily speaking for the Six Nations located in American territory and not the Grand River Indian peoples located in Canada as the latter already had free access to British posts. The reference to wanting "better and cheaper articles" among the British indicates that the major concern on the part of the Six Nations on American territory was that they would continue to cross the border to trade at British posts.

     The second meeting relied on by the plaintiff was held at Chenail Ecarté in August 1796 at which Colonel McKee, the Deputy Superintendent General of Indian Affairs met with the Chiefs of the Chippewas and Ottawas. There was no representative of the Iroquois nations present at this council. Colonel McKee, the British representative echoed Simcoe's earlier statements to the Six Nations. He made reference to promises contained in the Jay Treaty and invited all the Indian nations who were referred to in the last treaty with the United Sates to use Chenail Ecarté (Walpole Island) as a meeting place and place of residence.

Children, the change I allude to is the delivery of the Posts to the United States; these People have at last fulfilled the Treaty of 1783 and the Justice of the King towards all the world would not suffer him to withhold the right of another after a compliance with the terms stipulated in that Treaty but has notwithstanding taken the greatest care of the rights and independence of all the Indian nations who by the last Treaty with America, are to be perfectly free and unmolested in their Trade and hunting grounds to trade with whom they please.

     ...

Children, The situation of this place is particularly favourable for a general Council fire for all Nations - The Communication between the 6 Nations, the Nations of Canada and all the Nations and Tribes to the Northward and the Mississippi is extremely easy and there will be little difficulty of their assembling here at all times when the business or interests of the Indians may require it.

     Ms. Holmes stated there are three important things to take from the above quotation:

It is the independence of the Indian nations, the all inclusive language of all Indian nations and then the reference to the free and open trade.

     Ms. Holmes explained that the reference by Colonel McKee at the conference at Chenail Ecarté was to all the Indian nations and not just to the Ojibways and Ottawas who were present. Professor Johnston also holds this view. He testified that even though Colonel McKee was addressing the Chiefs of the Ojibways and Ottawas, he made a reference to all the Indian Nations who by the last treaty with America were to be perfectly free and unmolested in their trade. In Professor Johnston's view, he was referring to all the Indians beyond his immediate audience, otherwise it might have read: "all the Indian Nations here assembled". Although Colonel McKee was in the western country and was assuring the northwest nations at this meeting, the all inclusiveness of the statement meant it was intended to embrace other nations as well.

     Mr. Graves in his report emphasized that the meeting was not attended by the Seven Nations of Canada, the Grand River Nations or the Six Nations located on American soil. At page 63 of his report, Mr. Graves wrote that Colonel McKee advised the Indians that the disputed posts would be evacuated and that he assured the Chippewa and Ottawa that the King in the treaty had ensured their rights and their independence. The remainder of McKee's speech addressed the land that the Indian Department, on Simcoe's instructions had procured near Chenail Ecarté to provide homes for the thousands of Indian refugees from the Ohio valley. In my view, the Iroquois were not present or represented at this meeting.

TREATY OF GHENT 1814 AND COUNCILS

     The Treaty of Ghent was negotiated between the Americans and the British at the close of the War of 1812. The plaintiff submits that the Treaty of Ghent also involved a quid pro quo between the British and the First Nations. It served as the occasion for the British to acknowledge the assistance of Britain's Indian allies during the War of 1812. Again, the defendant submits that the Treaty of Ghent and the surrounding meetings were meant to maintain alliances with the Indians of the American Northwest.

     With respect to the role of Britain's Indian allies in the War of 1812, Professor Johnston at pages 22-23 of his report, wrote:

Whatever the Indians' commitment and role, it is evident that without their physical or moral support the British cause early in the war would have been in serious trouble, that is, at a time when British forces were comparatively thin on the ground. Indeed, as a number of authorities have demonstrated, including G.F.G. Stanley, Helen J. Tanner, and most recently Robert S. Allen, the outcome of particular engagements was determined by the timely intervention of Britain Indian allies. The taking of Detroit in August, 1812 and the crucial battle of Queeston Heights the following October are cases in point. On other occasions in both the West and on the Niagara frontier (most notably at the battle of Beaver Dams in June, 1813, where Caughnawagas and Six Nations warriors were engaged) success was largely attributable to the efforts of Native forces.

To turn the situation inside-out in a kind of nightmare scenario, as a Hawkesbury might have done: what if the Indians had for one reason or another actually forsaken the British and opted for an accommodation with the Americans? Brock himself had feared this possibility early on in the war. Thankfully, for the British, the situation that didn't bear thinking about did not arise.

     To illustrate that the Six Nations were independent allies during the War of 1812, given their initial position of neutrality, Professor Johnston adopted the statement made by John Burrows in "A Genealogy of Law: Inherent Sovereignty and First Nations Self-Government":

The impetus for First Nations' involvement in the War of 1812 is evidence of the desire of the Indian people to continue to exercise responsibility over their people, their institutions, and their surroundings. This interpretation contrasts with standard "Western" interpretations of the motivations of First Nations in fighting this war. It is often felt that First Nations relinquished their powers of government by siding with them during the war. However, when one approaches this history from a First Nations' perspective, aboriginal involvement in the War of 1812 indicates that my ancestors strove to retain inherent responsibility to define and govern themselves as a people.

     Dr. Venables also testified to the involvement of the Six Nations and particularly the Mohawks of Akwesasne in the War of 1812. According to Dr. Venables, despite the fact that they lacked the numbers of a European-sized army, the Mohawks were significant British allies during the war. At Chrysler's Farm and at Beaver Dams, the Mohawks served well. At Beaver Dams, which is west of the Niagara River, 60 Akwesasne Mohawks joined their Mohawk brethren from the Six Nation Reserve at Grand River in successfully defeating an American force. Dr. Venables noted that this demonstrates the kind of commitment that the Akwesasne Mohawks had to the British cause because Niagara is a considerable distance from Akwesasne for sixty warriors to travel. Dr. Venables relied on "Dominique Ducharme's Account of the Battle of Beaver Dam" where it stated:

On the 26th day of May, 1813, I was ordered by Sir John Johnson to set out from Lachine at the head of a body of 340 Indians, namely: 160 from Sault St. Louis, 120 from Lake of Two Mountains and 60 from St. Regis. I was accompanied by Lieutenants J.B. DeLorimier, Gedeon G. Gaucher, Louis Langlade, Evangeliste St. Germain and Isaac Leclair.

We proceeded to the head of the lake (Ontario) where we were placed under the command of Colonel Claus. When we arrived near the 40 Mile Creek this officer sent with us Captain Carr, (Kerr), Lieutenant (John) Brant and 100 Mohawks (or Agniers). On the 20th of June we encamped at 20 Mile Creek, or Beaver Dams, with all our Indians.

     Mr. Graves, in his report stated that with the exception of the battle of Beaver Dams in 1813, Akwesasne Indians played a very limited role in the War of 1812. Mr. Graves described the War of 1812 as a divisive period in the history of the Akwesasne settlement. At page 69 of his report Mr. Graves relied on the unpublished Ph.D. thesis of Carl Benn, "The Iroquois in the War of 1812" written in May 1995.

The Indians of Akwesasne at first tried to adopt a neutral stance, a not unreasonable position as their settlement abutted both British and American territory. As the most recent scholarly assessment of the role of the Indian nations in the War of 1812 states:

That location created three conditions which forced neutrality. One was that the people were acutely divided between pro-British and pro-American parties, and many people wanted to avoid the split that would be caused by a decision to go to war. The second was that the Americans could occupy St. Regis easily with war if the natives did not remain neutral. A third factor was the community's dependence on presents from both the British and Americans and a desire not to endanger either source. Sir George Prevost recognized the precariousness of the St. Regis situation and approved the neutralist position while agreeing to continue to supply presents to the community to keep the St. Regis people favourably disposed towards the British.

     Mr. Graves went on to explain that the attempt to remain neutral was not successful as a small American force attacked St. Regis in 1812. The settlement was then occupied by a force of Canadian militia and by November, 1812, many of the pro-American element among the inhabitants left St. Regis. At page 70 of his report, Mr. Graves stated: "throughout the war, both Britain and the United States tried to recruit warriors from Akwesasne, using a combination of bribes, gifts and threats. One small group of warriors fought with the American army in 1813 and 1814." I prefer the evidence of Dr. Venables on this point.

     The plaintiff claims that the negotiations leading up to the Treaty of Ghent further illustrate the continuum of Crown conduct in regard to the rights of First Nations. The British insisted during these negotiations on their right to negotiate for the "future security" of their Indian allies and made the restoration of the free trade and free passage rights in Article 3 of the Jay Treaty a prerequisite for the conclusion of the Treaty.

     Ms. Holmes stated at page 10 of her report that during negotiations for the Treaty of Ghent "[t]he British ministers asserted their right to include their Indian allies" in the treaty and referred to the Governor General's public assurance that Great Britain "would not desert" her Indian allies. Ms. Holmes referred to documentation by British Ministers in her report that outlined the position of both the British and American governments during the negotiations. At pages 10-11 Ms. Holmes refered to a letter from three British Ministers involved in the negotiations to the United States Ministers dated 4 September 1814 published in W. R. Manning, ed., Diplomatic Correspondence of the United States, Canadian Relations, 1784-1860 (Carnegie Endowment for International Peace, 1940) at 641-646.

... It is with equal astonishment and regret the Undersigned [British Ministers] find that the American Plenipotentiaries have not only declined signing any provisional Article by which the Indian Nations who have taken a part with Great Britain in the present Contest, may be included in the Peace, and may have a Boundary assigned to them, but have also thought proper to express surprise at any proposition on the subject having been advanced.

     ...

The British Plenipotentiaries have yet to learn that it is contrary to the acknowledged principles of public Law to include Allies in a Negotiation for Peace, or that it is contrary to the practice of all civilized Nations to propose that a provision should be made for their future security ...

     Ms. Holmes at pages 11-12 of her report also referred to a letter written by John Quincy Adams, James A. Bard, Henry Clay, Jona Russell and A. Gallatin dated September 26, 1814 published in American State Papers, Foreign Relations, vol. III, 1832 at 719-721 that summarizes the positions of the American and British governments in relation to Indians during the negotiations.

... [t]he Americans assured the British that following peace with Britain] ... the Indians would thereby be reinstated in the same situation in which they stood before the commencement of hostilities. The British plenipotentiaries insist, in their last note, that the Indian nations shall be included in the treaty of peace between Great Britain and the United States, and be restored to all the rights, privileges, and territories, which they enjoyed in the year 1811, previous to the commencement of the war by virtue of the treaty of Greenville and the treaties subsequently concluded between them and the United States. Setting aside the subject of boundary, which is presently as for discussion only, there is no apparent difference with respect to the object in view, the pacification and tranquillity [sic] of the Indians, and placing them in the same situation in which they stood before the war; all which will be equally obtained in the manner proposed by the undersigned. And the only point of real difference, is the British plenipotentiaries insist that it should be done by including the Indians, as allies of Great Britain, in the treaty of peace between her and the United States.

... To go as far as possible in securing the benefit of the peace to the Indians, now the only object professed by the British Government in their present sine qua non, the undersigned offer a stipulation in general terms: that no person or persons, whether subjects, citizens or Indians, residing within the dominions of either party, shall be molested or annoyed, either in their persons or their property, for any part they many have taken in the war between the United States and Great Britain; but shall retain all the rights, privileges, and possessions which they respectively had at the commencement of the war; they, on their part, demeaning themselves peaceably and conformably to their duties to the respective Governments. This, the undersigned have no doubt will effectually secure to the Indians peace, if they themselves will observe it, and they will not suppose that Great Britain would wish them included in the peace, but upon that condition.

     Mr. Graves stated that the clause with respect to Indians in the Treaty of Ghent was addressed to Indians resident on American territory and more particularly to nations of the northwestern part of the United States. Mr. Graves, after referring to a draft article prepared by Lord Bathurst, the British Secretary of war stated in his report at page 74 that:

... [t]here is little doubt that the Indians contemplated by the authors of this draft clause were those nations residing on American territory who had fought for Britain in 1812-1814. More particularly, Bathurst was contemplating the nations of the northwestern part of the United States who had been members of Tecumseh's confederacy. This is evidenced by the specific reference to the year 1811, when fighting that led to the battle of Tippecanoe in November of that year, broke out in the northwest, and not 1812 when the United States had declared war on Britain. By attempting to revive the idea of an "Indian barrier state", Britain was trying to pay the debt she owed the nations of the confederacy in the territory of the United States for their assistance during the war. She was also trying to avoid repeating the failure to provide for Indian interests in the treaty as had happened in 1783 and had been the cause of so much trouble from 1783 to 1794.

     [footnotes omitted, emphasis in original].

     Mr. Graves concluded that the reference to "possessions, rights and privileges" in Article IX of the Treaty of Ghent is not related to trade but to Indian lands, the most fundamental and pressing problem in the minds of Indian leaders.

     The final article agreed upon in the Treaty of Ghent is Article IX.

TREATY OF GHENT - ARTICLE IX

The United States of America engage to put an end, immediately after the Ratification of the present Treaty, to hostilities with all the Tribes or Nations of Indians, with whom they may be at War at the time of such Ratification; and forthwith to restore to such Tribes or Nations respectively, all the Possessions, Rights, and Privileges, which they may have enjoyed, or been entitled to in 1811, previous to such hostilities: Provided always, that such Tribes or Nations shall agree to desist from all hostilities against The United States of America, their Citizens and Subjects, upon the Ratification of the present Treaty being notified to such Tribes or Nations, and shall so desist accordingly.

And His Britannic Majesty engages, on his part, to put an end, immediately after the Ratification of the present Treaty to hostilities with all the Tribes or Nations of Indians with whom he may be at War at the time of such Ratification; and forthwith to restore to such Tribes or Nations, respectively, all the Possessions, Rights and Privileges, which they may have enjoyed or been entitled to in 1811, previous to such hostilities: Provided always, that such Tribes or Nations shall agree to desist from all hostilities against His Britannic Majesty, and his Subjects, upon the Ratification of the present Treaty being notified to such Tribes or Nations, and shall so desist accordingly.

     The plaintiff submits that after the signing of the Treaty of Ghent, further councils were held with First Nations at which treaty promises, accepted by the First Nations were made. The first council was held at Burlington Heights on April 24, 1815. The Crown was represented by William Claus, the Deputy Superintendent General of Indian Affairs. The aboriginals were represented by various chiefs and warriors including a Huron chief and an Onondaga war chief from the Grand River territory. After they had spoken, they turned matters over to "Tekarihoga" (also spelled "Tekarihoken") the title of the principal Mohawk Turtle Clan chief. The main thrust of this council was to inform the King's aboriginal allies at their military base at the head of Lake Ontario, that peace had been made with the United States and that they had been provided for in the Treaty. William Claus assured them:

I am further instructed to inform you that in making Peace with the Government of the United States of America, your interests were not neglected, nor would peace have been made with them had they not consented to include you in the treaty, which they at first refused to listen to. I will now repeat to you one of the Articles of the Treaty of Peace which secures to you the peaceable possession of all the Country which you possessed before the late War, and the road is now open and free for you to pass and repass freely without interruption.

     Immediately after, Claus read, almost verbatim, Article IX of the Treaty of Ghent. He then stated:

During the long and expensive wars the King of England was engaged in beyond the Great Lakes and with the Big Knives his attention to his Indian Children never cease, and I am now instructed to assure you of his affections and regard ... Nothing is required in return for your Father's benevolence towards you, but a renewal of the Engagements made by your Ancestors and yourselves. He has the utmost reliance on your attachments to him and the Officers who represent him in this Country.

     The next day, the Indian nations replied to Claus' address. The main speaker was Tekarihoga who began by asserting that "the Six Nations and the assembled nations, and the other nations here assembled understand you perfectly". He expressed that "We are not able to make Peace with the Indians with whom we have been at War" and requested that Claus help to organize a meeting of the Six Nations on the Grand River and those in the United States. Tekarihoga then stated:

You told us that the Road is now open to the setting of the Sun, and that whenever the Western Indians shall be inclined to set out homeward they should be furnished with Provisions. Many who are Sick, and others who are lame will not be able to Travel and Carry their provisions, it is therefore the sincere wish of us the Six Nations, that they may be assisted with Transport as far as the River Thames, when they can build Canoes to proceed in. When these people came down Provisions were furnished them at several Stages. We hope the same indulgence will be now shewn to them.

     Dr. Venables explained that the context of Claus' speech indicates that he was using an Iroquois metaphor to describe a trade network. The "Road" was a symbol of trade and he was stating to the Six Nations that the road was now open for them to pass and repass.

     Professor Johnston testified that this council at Burlington Heights amounted to a treaty. When Claus stated that "nothing is required in return for your Fathers benevolence towards you, but a renewal of the Engagements made by your ancestors and yourselves", this was an expression of a covenant between the Indians and the government. The British would offer protection and in return the Indians would offer support in times of need as allies. In my view, Professor Johnston did not tie the council in with the trade rights asserted by the plaintiff in the case at bar.

     Mr. Graves, in his report, stated that the council was held at Burlington Heights to explain the contents to the Treaty of Ghent to the contingent of warriors from the northwest confederacy who had fled to Burlington Heights when the British had withdrawn from western Upper Canada in 1813. Members from the Grand River and Six Nations Iroquois and other Canadian Indian nations were also present. However, according to Mr. Graves, there is no evidence that any Mohawks from Akwesasne were present at the council.

     Mr. Graves, in his report, stated that it is clear from the context of the speech that Claus was addressing himself primarily to the nations of the northwestern confederacy. The reference to Article IX "which secures to you the peaceable possession of all the Country, which you possessed before the late War" was addressed to the Indians who had fled their homelands in the United States and could now return. According to Mr. Graves, these comments could not have been addressed to the Mohawks of Akwesasne because they had not lost any lands during the war.

     Mr. Graves also emphasized that Tekarihoga, in his response, made no reference to customs or trade matters of any kind. Mr. Graves noted that in stating that "the Road is now open to the setting of the Sun," (meaning the west), Tekarihoga substantiated the defendant's position that the Grand River nations realized that Claus' speech was addressed to those present from the nations that had resided in the northwestern part of the United States prior to 1811 and not to the Mohawks of Akwesasne.

     Another meeting was held at Niagara in August/September 1815. William Claus again addressed the nations assembled and he reiterated what he stated at the meeting at Burlington Heights in April.

The road has been open'd and made smooth for you all. When the King of England made Peace with the Americans he was particular in stipulating that no difficulties should be thrown in the road to interrupt the free intercourse between his Indian Children.

     The Mohawk Chief, Tekarihoga, announced to those present his understanding of what had occurred at Burlington Heights.

Brothers and Relations, Our Father has performed the Ceremonies which were customary with our Ancestors, and which we endeavour to continue. Our meeting is at our Father the Kings Council fire which has just been uncovered that we may proceed to deliberate upon the good work for which we are now assembled. We the several Nations residing at the Grand River Salute you from the other side we are the same people with you we are relations and of the same colour notwithstanding our having been opposed to each other in the Field during the late Contest between our Father the King of England and the Americans. Our friend who has just uncovered the Council fire has removed all obstructions our minds are set at ease. The River which separates us is opened that we may have free passage at all times. The Roads are cleared of all briars and rubbish, that we may again renew that friendly intercourse which formerly existed between us. I now speak to you on behalf of the Indians residing on the Grand River, and I am desired to assure you that all ill will is removed from their Hearts towards You from the [other?] American land.

    

     delivered a bunch of Strings of Wampum.

     Both the plaintiff's and the defendant's experts agree that the purpose of this meeting was to reconcile the Grand River Iroquois with the American Iroquois who fought each other during the war. Professor Johnston went so far as to state that "...this meeting resulted in a peace treaty between the Indians."

     Dr. Venables testified that the term "road" again signified trade. Dr. Venables stated that since the War of 1812 disrupted trade that had been going on for a long period of time, it was necessary for Claus to reiterate that the road was now open.

     Both Claus and Tekarihoga used the term "renew friendly intercourse which formerly existed" between Indian nations. In the Oxford English dictionary "intercourse" is defined as including trade, especially in early use. It states:

Communication to and from between countries, etc.; mutual dealings between the inhabitants of different localities. In early use exclusively with reference to trade, and hence sometimes -- commerce, traffic; now in more general sense.

     John Mohawk also confirmed this meaning when he stated:

The free intercourse doesn't mean just that they can travel back and forth. We have to believe that it means something else. Free intercourse means, of course, that they carry on some sort of business, trade, commerce, something, that they are doing something there, other than transporting their bodies between each group.

     Ms. Holmes, in her report, explained that evidence of the commitments made during the councils in 1815 were communicated to other Iroquois communities by relating the contents of an 1870 letter from the Chiefs of Caughnawaga (Kahnawake) to Passamaquoddies of Maine:

In answer also to the Wampum which you have sent to us in return therefore we send to you ours, specifying our treaty which took place A.D. 1810 [sic likely 1815]. Therefore, all nations and tribes of Indians from the East and West and from the North and South wherein our Chiefs from every nation and tribe were present, therefore we should bind the good-doing of our ancestors in this treaty of peace. The English and American generals were present having freed all the Indians of Wars incurring between them, and no Boundary line should exist between us Indian Brethren, not any duties, taxes or customs should be levied on us.

     Ms. Holmes also explained the First Nations understanding of the rights secured for them in the Treaty of Ghent and the surrounding meetings. An Indian Affairs official, William Elliott, was questioned at a court of inquiry dealing with some difficulty with Indians crossing the river at Detroit in 1815. He was asked when the Treaty of Ghent was read and explained to the Indians. He replied:

Immediately on its being received at Burlington Heights, it was read and explained to them; I explained it myself at my own quarters afterwards by orders from the Superintendent General, and all the Chiefs were perfectly satisfied with it.

The Indians on our coming down to Sandwich accused me of being a Liar, as they were not allowed to cross the Detroit River by the Americans, and that by such conduct, I had either told them what was not true, or else that the Americans had broke the Treaty, and we were still at war with them.

     William Elliott was also asked what the Indians had ever said about their country and he replied that

... [t]hey have always said that if the Americans attempted to take their Lands from them that it would be an act of war, and as the Treaty of Ghent secured them, they were satisfied, and that they would always rely on their British Father, if injustice was ever offered to them by the American Government.

     John Mohawk testified that in oral tradition, there is a general sense that the right to pass back and forth was consistently preserved throughout this period. The tradition is not detailed in the sense of describing specific meetings held with the First Nations. More importantly, he testified that there are no oral histories about the two 1815 conferences. The tradition says that the right to cross the border was preserved and that there are agreements to this effect.

ANALYSIS OF TREATIES AND COUNCILS

     The Ontario Court of Appeal in R. v. Vincent (1993), 12 O.R. (3d) 427 leave to appeal to S.C.C. refused, dealt with similar issues relating to treaties as those in the present case. In Vincent, the plaintiff was a Huron Indian who re-entered Canada at the Cornwall International Bridge with several cartons of cigarettes. The Ontario Provincial Court found her liable to pay the necessary duties and taxes on the imported goods. On appeal, the plaintiff and her intervenor, the Chiefs of Ontario, argued that she was, as an Indian, entitled to bring goods into Canada of a commercial nature without having to pay the duty or tax. The issue before the Court of Appeal was whether this historical right existed and, if so, whether this right was entrenched in the Constitution. Lacourcière J.A. found that the provision in the Jay Treaty dealing with moving goods across the border did not apply to goods in a commercial sense. It applied only to goods for personal use. This could have disposed of the issue, however, the Court went on to deal with the issue of whether the Jay Treaty was a treaty within the meaning of section 35 of the Constitution.

     The Court of Appeal found that the Jay Treaty, as an international treaty, is not a treaty within the meaning of section 35(1) of the Constitution. Section 35(1) refers only to rights arising from treaties concluded with aboriginal peoples. Even if the right to cross borders with personal goods was created in the Jay Treaty, this right would have been revoked or extinguished before the proclamation of the Constitution in 1982. Section 35(1) does not create rights. It only recognizes and affirms existing rights. An international treaty is one between the nations who are parties to the treaty, and the rights created or conferred by an international treaty belong exclusively to the sovereign countries which are contracting parties to it. In order for individual members of those nations to have rights under the treaty, the treaty must have been implemented by national legislation. The United Kingdom, Upper and Lower Canada implemented the Jay Treaty, but the law was allowed to expire during the first decade of the 19th century. Furthermore, the Jay Treaty was abrogated by the war of 1812-14.

     This decision was based in part on the Supreme Court of Canada's decision in Francis v. R., [1956] S.C.R. 618 at 631, wherein Kellock J. stated:

I think it is quite clear that "treaty" in this section [section 88 of the Indian Act] does not extend to an international treaty such as the Jay Treaty but only to treaties with Indians which are mentioned throughout the statute.

In my opinion, the provisions of the Indian Act constitute a code governing the rights and privileges of Indians, and except to the extent that immunity from general legislation such as the Customs Act or the Customs Tariff Act is to be found in the Indian Act, the terms of such general legislation apply to Indians equally with other citizens of Canada.

     The Court of Appeal reviewed a number of other decisions and found that the word "treaty" has always had the meaning of a treaty between the Crown and the Indians. There is no court decision which gives it the meaning of an international treaty.

     In Vincent, the appellant also claimed that in the historical context of the time, the promises made by the white man to the Indians have a special meaning for the interpretation of the Jay Treaty and constitute a treaty which confers constitutional rights. The Court of Appeal found that the historical documents between 1713 and 1815, submitted by the appellant, do not succeed in establishing that the British Crown had given to the Indians of Canada, the rights asserted by the appellant. No historical fact capable of satisfying the criteria laid out in the Sioui case was submitted in evidence to demonstrate the existence of such a right based on a written or oral treaty with the Indians.

     The Court of Appeal found that it was not necessary for it to proceed with a detailed analysis of the historical context to determine that the first two elements, and the fifth, do not permit a finding of an intention to create a treaty. The Court accepted the respondent's submission that the meetings between the Amerindians and the British officers were intended to reassure the Amerindians of the Northwest United States that political, miliary and commercial relations with the British would be preserved. The meetings were not meant to recognize or grant Canadian Indians any commercial right of free passage over the border without paying duty. This recognition would have been contrary to the British policy of increasing customs and mercantile profits.

     The plaintiff in the case before me, argued that the Ontario Court of Appeal's decision in Vincent is distinguishable from the present case for a number of reasons. First, in Vincent, the accused was found in possession of a large amount of tobacco and cash. The Court of Appeal found that the tobacco imported by the accused in seven large cardboard boxes could not be considered exempt from duty because the tobacco was "goods and bales or other large packages unusual among Indians" and therefore fell under the exemption in Article III of the Jay Treaty. Second, the accused in Vincent is a Huron, whereas Chief Mitchell claims rights through his Mohawk ancestors. Third, the scope of the right pleaded in Vincent is much broader than the right being claimed by Chief Mitchell. In Vincent, the accused claimed that she had an historic right which allows her to import into Canada any commercial merchandise free of duty and of any other form of taxation, to sell such merchandise in Canada in competition with legitimate Canadian manufacturers and businesses. Chief Mitchell does not claim the right to import into Canada any commercial merchandise or to sell such merchandise in Canada in direct competition with Canadian manufacturers or businesses. Finally, the plaintiff argued that the accused in Vincent did not argue that she had an aboriginal right to carry on the activity for which she was charged. In the present case, Chief Mitchell argues that Article III of the Jay Treaty and various treaty councils confirmed the aboriginal rights of his ancestors.

     I am not bound by the Ontario Court of Appeal's decision in Vincent, however, the findings made by the Court with respect to the treaty rights are instructive. I agree with the plaintiff that the Ontario Court of Appeal did not make any findings on the appellant's aboriginal rights. I also agree that the content of the right claimed by Mrs. Vincent is different that that being claimed by Chief Mitchell. However, I am in agreement with the Ontario Court of Appeal's findings with respect to the effect of international treaties.

     The Treaty of Utrecht 1713, the Jay Treaty 1794 and the Treaty of Ghent 1814 are not treaties within the meaning of section 35(1) of the Constitution Act. I adopt the reasoning of the Ontario Court of Appeal in Vincent, supra on this issue. Lacoucière J.A. at 436-437 stated:

It is obvious that according to Canadian court decisions the word "treaty", when it deals with aboriginals, has always had the meaning of a treaty between the Crown and the Indians. There is no court decision which gives it the meaning of an international treaty.

In our opinion, the Jay Treaty is not a treaty within the meaning of s-s. (1) of s. 35, and the provisions of art. III do not confer "treaty rights" within the meaning of this paragraph. The expression "treaty rights" in s. 35(1) means rights attached to or belonging to the aboriginal peoples which issue from treaties concluded with them.

     Although First Nations and the Mohawks in particular may have benefitted at times from the provisions of these treaties, they were not parties to the treaties, nor were they involved in the negotiation, execution or terminations of these treaties. Legislation was passed implementing the Jay Treaty in Lower Canada in May 1796 and remained in force until June 1813. The Upper Canada legislation was passed in 1801 and continued until 1824. Without other legislation implementing the treaty into Canadian legislation, it is not in force in Canada.

     The plaintiff acknowledged that no First Nations were involved in the negotiations of these international treaties. The plaintiff relied on the Vienna Convention on the Law of Treaties to argue that rights in favour of a third party will arise from a treaty if such was the intention of the parties and that these rights cannot be altered in any way without the consent of the third party if it is established that such was the intention of the parties to the treaty. The plaintiff argued that such is the case with Article III of the Jay Treaty which was intended to be permanent and reaffirmed by the Treaty of Ghent. The plaintiff argued that it was a "stipulation pour autrui" at international law.

     Under the Vienna Convention on the Law of Treaties, a third party being referred to is a third State. Article 34 of the Convention reads:

A treaty does not create either obligations or rights for a third State without its consent.

     The plaintiff submitted that whether the Indian Nations were recognized as States is irrelevant, as formal requirements of statehood were not a necessary requirement of British treaty-making in the mid-18th and 19th centuries. Formal requirements of statehood may not have been a necessary requirement, however, in my view, the British Crown considered the First Nations to be British subjects and not independent nations or states. The capacity of First Nations to enter into treaties with European powers has long been recognized in Canada, however, this does not change the requirement that states creating treaty provision in favour of a third state must demonstrate the intention to do so. It follows, that the British Crown would have to have viewed the First Nations as independent nations or states.

     I recognize that the First Nations were often referred to as "brothers", and that the plaintiff's experts testified that the First Nations were viewed as independent peoples, however, in my view, the conduct of the British Crown toward the First Nations during that period demonstrates that it did not view them as independent nations or states. Lord Dorchester in 1791 referred to "the King your Father"; Lieutenant Governor Simcoe referred to the First Nations as "Children"; Colonel McKee referred to the First Nations present at Chenail Ecarte in August 1796 as "Children".

     I adopt the reasoning of the Ontario Court of Appeal in Vincent, supra where the Court found that an international treaty cannot confer rights on individuals or groups. After reviewing the case law, Lacoucière J.A. at 440 stated:

This excerpt clearly demonstrates that an international treaty cannot confer a right upon an individual, or upon a group of individuals. A right mentioned in an international treaty is not justiciable before a Canadian court. We are of the opinion that an international treaty cannot create rights in favour of individuals, nor groups of individuals, who reside in the contracting countries. In an international treaty with a sovereign state, the Crown is not and cannot be the trustee or agent of a subject, and the subject cannot be the beneficiary of the trust: Rustomjee v. R. (1876), L.R. 2 Q.B. 69 (C.A.); Civilian War Claimants Assn. v. R. [1932] A.C. 14 (H.L.).

     With respect to the Crown's meetings with the First Nations, the plaintiff submits that these meetings create treaty rights within the meaning of subsection 35(1) of the Constitution Act, 1982. The evidence demonstrates that these meetings were used to explain the contents of the Jay Treaty and the Treaty of Ghent to the First Nations. In my view, with respect to the Mohawks of Akwesasne resident in Canada, these meetings do not satisfy the test for valid treaties as outlined by the Supreme Court of Canada in Sioui, supra. I agree with Mr. Graves who testified that the meetings, councils or conferences were not treaty making councils. He is supported by the validity and authority of the 1985 Iroquois "treaty calender" published in the History and Culture of Iroquois Diplomacy: An Interdisciplinary Guide to the Treaties of the Six Nations and their League. This is confirmed by Iroquois Indians: A Documentary History of the Diplomacy of the Six Nations and their League. These publications list treaties made with the Six Nations and these meetings are not included.

     I accept the plaintiff's evidence describing the protocol followed at these meetings and I accept that this protocol is consistent with that used by First Nations in treaty councils, however, the plaintiff's witnesses also stated that the protocol was often followed in meetings that did not involve treaties.

     The Crown representatives would have been viewed by the First Nations present at these meetings as authorized to speak for the Crown and the First Nations had the capacity to enter into treaties, however, the evidence does not support an intention on the part of the Crown to create a treaty with the Mohawks of Akwesasne, nor does the evidence demonstrate an exchange of promises by the parties. Furthermore, I note that the Ontario Court of Appeal rejected the claim in Vincent, supra where Lacourcière stated at 443:

We are of the opinion that the historical documents between 1713 and 1815, submitted in evidence by the appellant and the intervenors, do not succeed in establishing that the British Crown had given to the Indians of Canada, or to the Hurons of Lorette in particular, the rights asserted by the appellant. In our view, the sovereign European countries or the United States never intended to recognize or confirm the right of aboriginals to undertake commercial activity free of custom duties.

     I accept the evidence of the defendant's experts that the situation prevailing at the time of these meetings demonstrates that the Crown was concerned with the First Nations resident on American territory and not those living in Canada. Although the plaintiff's witnesses testified that the Mohawks of Akwesasne were either represented at these meetings or that the messages were relayed to them, I accept the defendant's submission that the Mohawks of Akwesasne were not being addressed by the British Crown at this time.

     At Fort Erie in 1795, Joseph Brant represented the Six Nations. His response to Lieutenant Governor Simcoe's speech indicates however, that he was speaking for those resident on American territory. I accept Mr. Graves' evidence that when Joseph Brant stated that : "we hope to find better and cheaper articles that we may from time to time want among the British, as we would prefer dealing with them", he was speaking on behalf of First Nations on American territory who, after the signing of the Jay Treaty would no longer have access to British posts on the American side and would have to travel to Canada to obtain British goods. The Council at Chenail Ecarte in 1796 did not involve any representatives of the Iroquois Confederacy.

     At the meeting at Burlington Heights in 1815, following the Treaty of Ghent, Tekarihoga, a Mohawk Chief from the Grand River territory spoke on behalf of the Six Nations. With respect to the terms of the Treaty of Ghent, he requested that William Claus mediate between the Six Nations and the Iroquois on the other side of the border. In my view, he did not mention the right to trade.

     I find that the meeting at Niagara that same year was the opportunity for the Iroquois who had fought for the British and those that had fought for the Americans during the war to reconcile. Tekarihoga, in reiterating what had occurred during the meeting at Burlington Heights, in my view, did mention trade when he used the term "renew friendly intercourse which formerly existed" between Indian nations. However, in light of the intentions of the British Crown during that period, I can not accept that these statements demonstrate the requisite intention by the British Crown to create a treaty with the Mohawks of Akwesasne or their representatives.

     It is not clear from the evidence whether or not the Mohawks of Akwesasne were seen by either the Six Nations at Grand River or by the British Crown to be represented by the Iroquois resident on American territory or by the Iroquois living on the Grand River. I do accept, however, that the historical context of these meetings demonstrates that the British Crown held these meetings with the First Nations to relieve tensions and fears on the part of First Nations living on American territory that were created by the war with the Americans.

     The plaintiff further submitted that the rule of estoppel precludes the Crown from claiming that no rights arose in favour of First Nations from the provisions of Article XV of the Treaty of Utrecht, Article III of the Jay Treaty, and Article IX of the Treaty of Ghent, confirmed in subsequent treaty councils, as well as by Crown conduct over a period of at least a hundred years. In Jurisdiction of the Court and Admissibility of Application, Decision of 26 November 1984, reproduced in (1984), 24 I.L.M. 59 at 71 the court states:

...estoppel may be inferred from the conduct, declarations and the like made by a State which not only clearly and consistently evidenced acceptance by the State of a particular regime, but also had caused another State or States, in reliance of such conduct, detrimentally to change position or suffer some prejudice.

     The plaintiff submitted that the elements of the doctrine of estoppel have been met because the meaning of the representations made by the Crown in the Treaty of Utrecht, the Jay Treaty, the Treaty of Ghent and the various treaty councils are clear and unambiguous. The representations were voluntary, unconditional and authorized and made by persons in authority. The plaintiff relied on the representation to his detriment by acting on the basis of the representations made to his ancestors since he has been accused of contravening Canadian legislation and has been forced to litigate these rights.

     For the reasons I outlined above, I do not accept that the meetings held with First Nations to explain the contents of the Jay Treaty and the Treaty of Ghent amount to representations made to the Mohawks of Akwesasne. Nor do I accept that the provisions of the international treaties amount to estoppel creating rights for the plaintiff. If these treaties create an estoppel on the part of the plaintiff in the present case, it would follow that any treaty entered into by the Canadian Crown would create substantive rights for individuals if they relied on its provisions to their detriment.

RELATIONSHIP BETWEEN ABORIGINAL RIGHT AND TREATY RIGHTS

     I have found that the plaintiff, as a Mohawk of Akwesasne resident in Canada, has established that he has an aboriginal right to pass and repass freely across what is now the Canada - United States boundary including the right to bring goods into Canada for personal and community use, including for non-commercial scale trade with other First Nations. I have also found that this right is not expressed in a "treaty" within the meaning of subsection 35(1) of the Constitution Act, 1982.

     The wording of the Jay Treaty is however instructive in characterizing the nature and scope of the aboriginal right being claimed by the plaintiff. This is not to say that the Jay Treaty is a binding document on the parties in this case. I have already determined that the Jay Treaty is not a "treaty" within the meaning of section 35(1) of the Constitution and therefore does not serve as an independent source of a constitutionally protected right for aboriginal peoples. It follows therefore, that the Jay Treaty, because it is not enforceable in Canada cannot serve as a limitation on a constitutionally protected aboriginal right. If the Jay treaty is not a treaty within the meaning of section 35(1) of the Constitution, partly because it is a treaty between two sovereign powers, one of which is not the First Nations, how can its wording be an indication of the content of the aboriginal right being claimed in this case? The treaty does not have legal validity and is not enforceable in Canada, however, it is a historical document and therefore has some historical significance. Consequently it is useful as evidence of the historical context of the treatment of First Nations during that period. However, since the First Nations were not involved in the negotiations, drafting or ratification of the agreement, at best it is evidence of what two countries were prepared to include in an agreement between themselves on behalf of a third party.

     That being said, the plaintiff has stated that the wording of the Jay Treaty is indicative of the content of the aboriginal right being claimed in this case. The plaintiff led evidence to explain the scope of Article III of the Jay Treaty. The plaintiff, in argument stated that "while Indians were recognized to have the rights of passing and repassing with their own proper goods and effects of whatever nature, there was a qualification that "goods and bales and other large packages, unusual among Indians shall not be considered as goods belonging bona fide to Indians."

     As noted above, the plaintiff's experts described this limitation as one that would limit the quantity and type of goods that were exempt from duty. As Dr. Venables described, the First Nations were traders, not merchants. Dr. Venables also described the term "usual among Indians" as a fluid term that included both goods manufactured by First Nations and goods obtained from Europeans.

     Given the above, the wording of the Jay Treaty reinforces the characterization of the aboriginal right as one that is exercised on a non-commercial scale. The types of goods contemplated by the Jay Treaty are those "usual" among Indians. In keeping with the jurisprudence on the evolution of the exercise of aboriginal rights, "usual" among Indians should be defined as a relative term. Goods that are "usual" among Indians today are not the same types of goods that were "usual" among Indians in the 17th, 18th and 19th centuries. In my view, any goods that can be termed for "personal and community use" as described by the plaintiff in his testimony, can be brought into Canada in accordance with the plaintiff's aboriginal right. Personal and community use includes goods used for sustenance, household goods and goods used for First Nations' custom. The wording of the Jay Treaty also supports the characterization of the plaintiff's aboriginal right as a right to trade these goods on a non-commercial scale with other First Nations.

DOES THE PLAINTIFF HAVE AN "EXISTING" ABORIGINAL RIGHT WITHIN THE MEANING OF SUBSECTION 35(1) OF THE CONSTITUTION?

     Subsection 35(1) of the Constitution protects existing aboriginal rights. If an aboriginal right was extinguished by the Crown prior to the enactment of subsection 35(1), the right is not considered to be an existing right within the meaning of that section. Lamer C.J. succinctly set out the test for extinguishment in Gladstone, supra when he stated at paragraph 19:

The test for determining when an aboriginal right has been extinguished was laid out by this Court in Sparrow. Relying on the judgment of Hall J. in Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313, the Court in Sparrow held at p. 1099 that '[t]he test of extinguishment to be adopted, in our opinion, is that the Sovereign's intention must be clear and plain if it is to extinguish an aboriginal right'. Further, the Court held that the mere fact that a right had, in the past, been regulated by the government, and its exercise subject to various terms and conditions, was not sufficient to extinguish the right. That argument that it did so (Sparrow, at p. 1097)

confuses regulation with extinguishment. That the right is controlled in great detail by the regulations does not mean that the right is thereby extinguished.

     The Crown in the case before me did not argue that extinguishment was applicable except to a limited extent with respect to the Jay Treaty. I find nothing to demonstrate a clear and plain intention on the part of the Crown to extinguish the plaintiff's aboriginal right to pass and repass freely the Canada-United States boundary with personal and community goods and to trade those goods with other First Nations. The provisions of the Customs Act that require payment of duty and taxes on goods entering into Canada may tax and regulate the activity, however, the Customs Act does not exhibit a clear and plain intention to extinguish the plaintiff's aboriginal right.

     The Supreme Court of Canada in Côté, supra stated that a lack of recognition of a right should not undermine the constitutional guarantees accorded to aboriginal peoples. The fact that the Crown has not recognized the plaintiff's aboriginal right is not evidence of an extinguishment of that right. In Côté, supra Lamer C.J. stated:

As such, the fact that a particular practice, custom or tradition continued, in an unextinguished manner, following the arrival of Europeans but in the absence of the formal gloss of legal recognition from French colonial law should not undermine the constitutional protection accorded to aboriginal peoples. Section 35(1) would fail to achieve its noble purpose of preserving the integral and defining features of distinctive aboriginal societies if it only protected those defining features which were fortunate enough to have received the legal recognition and approval of European colonizers. I should stress that the French Regime's failure to recognize legally a specific aboriginal practice, custom or tradition (and indeed the French Regime's tacit toleration of a specific practice, custom or tradition) clearly cannot be equated with a "clear and plain" intention to extinguish such practices under the extinguishment test of s. 35(1).

     To determine whether a given right could be considered an "existing" right within the meaning of section 35, Courts have analyzed the effect of legislation and regulations prior to 1982 which on their face appeared incompatible with the aboriginal right being claimed. On its face, the Customs Act appears to provide a complete code regulating duty and taxes on goods being brought into Canada that is inconsistent with the continued existence of an aboriginal right to bring goods across the Canada-United States border duty-free. In Sparrow, supra and more recently in Gladstone, supra, the Supreme Court has made a distinction between statutory regulation and clear and plain extinguishment. In Gladstone, supra at paragraph 34, Lamer C.J., after examining the regulatory scheme under the Fisheries Act concluded:

None of these regulations, when viewed individually or as a whole, can be said to express a clear and plain intention to extinguish the aboriginal rights of the Heiltsuk Band. While to extinguish an aboriginal right the Crown does not, perhaps, have to use language which refers expressly to its extinguishment of aboriginal rights, it must demonstrate more than that, in the past the exercise of an aboriginal right has been subject to a regulatory scheme. In this instance, the regulations and legislation regulating the herring spawn on kelp fishery prior to 1982 do not demonstrate any consistent intention on the part of the Crown. At various times prior to 1982 aboriginal peoples have been entirely prohibited from harvesting herring spawn on kelp, allowed to harvest herring spawn on kelp for food only, allowed to harvest herring spawn on kelp for sale with the written permission of the regional director and allowed to take herring roe pursuant to a licence granted under the Pacific Fishery Registration and Licensing Regulations. Such a varying regulatory scheme cannot be said to express a clear and plain intention to eliminate the aboriginal rights of the appellants and of the Heiltsuk band. As in Sparrow, the Crown has only demonstrated that it controlled the fisheries, not that it has acted so as to relineate the extent of aboriginal rights.

     The Customs Act, its regulations and its predecessor acts are akin to the regime established by the Fisheries Act and regulations examined by the Supreme Court of Canada in Sparrow, supra and again in Gladstone, supra.

     In Gladstone, Lamer C.J. distinguished the fishing regulations at issue with the provision relied on for a finding of extinguishment in R. v. Horseman, [1990] 1 S.C.R. 901, which was a constitutional enactment. For him the important distinction was the lack of a clear and plain intention for a "permanent settlement of the legal rights of the Aboriginal groups to whom it applies", as opposed to regulations dealing with immediate problems and subject to amendment "through nothing more elaborate than the normal legislative process".

     The specific duties and taxes imposed from time to time under the Customs Act are not permanent features required to maintain Canadian sovereignty. They are not, as like the constitutional enactment in Horseman, supra, aimed at a permanent settlement of the legal rights of the aboriginal peoples. In effect they change over time or are eliminated completely with respect to certain goods. The plaintiff's right to cross the border with personal and community goods without paying duty is not incompatible with the regime of the Customs Act or cannot co-exist with and within that regime.

     The only evidence of possible extinguishment of the plaintiff's aboriginal right is the Customs Act. The legislative history of the Customs Act was not before me. Although the Customs Act effectively regulates and taxes the exercise of the plaintiff's aboriginal right, in my view, it is not evidence of a clear and plain intention on the part of the Crown to extinguish that right. The onus of proving extinguishment lies upon the Crown and the Crown, in the case before me, has not satisfied that onus.

DOES THE CUSTOMS ACT INFRINGE THE PLAINTIFF'S ABORIGINAL RIGHT?

     The test for determining whether or not the government has infringed an aboriginal right was outlined in Sparrow, supra at 1111-1112.

The first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. It ist does have such an effect, it represents a prima facie infringement of s. 35(1). Parliament is not expected to act in a manner contrary to the rights and interests of aboriginals, and, indeed, may be barred from doing so by the second stage of a s. 35(1) analysis ...

     ...

To determine whether the fishing rights have been interfered with such as to constitute a prima facie infringement of s. 35(1), certain questions must be asked. First, is the limitation reasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny the holders of the right their preferred means of exercising that right? The onus of proving a prima facie infringement lies on the individual or group challenging the legislation...

     In Gladstone, supra Lamer C.J. provided some further clarification on the Sparrow test for infringement.

The Sparrow test for infringement might seems, at first glance, to be internally contradictory. On the one hand, the test states that the appellants need simply show that there has been a prima facie interference with their rights in order to demonstrate that those rights have been infringed, suggesting thereby that any meaningful diminution of the appellants' rights will constitute an infringement for the purpose of this analysis. On the other hand, the questions the test directs courts to answer in determining whether an infringement has taken place incorporate ideas such as unreasonableness and "undue" hardship, ideas which suggest that something more than meaningful diminution is required to demonstrate infringement. This internal contradiction is, however, more apparent than real. The questions asked by the Court in Sparrow do not define the concept of prima facie infringement; they only point to factors which will indicate that such an infringement has taken place. Simply because one of those questions is answered in the negative will not prohibit a finding by a court that a prima facie infringement has taken place; it will just be one factor for a court to consider in its determination of whether there has been a prima facie infringement.

     The Customs Act applies to goods brought into Canada by the Mohawks of Akwesasne. The exercise of the plaintiff's aboriginal right to cross the Canada-United States border with goods free of any duty or taxes, is a prima facie infringement of the right.

     Having found a prima facie infringement of the plaintiff's aboriginal right, I must determine whether the Crown has proven that this infringement is justified. In Sparrow, the Supreme Court set out the test for justification in the context of seeking reconciliation between constitutionally entrenched aboriginal rights and federal legislative power. At 1109, the Court stated:

In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights.

     The Crown has not led any evidence on justification for infringement of the plaintiff's aboriginal right. In R. v. Badger, [1996] 1 S.C.R. 771 at 822, Cory J. stated:

In the present case, the government has not led any evidence with respect to justification. In the absence of such evidence, it is not open to this Court to supply its own justification.

     Without any evidence on justification, I will not speculate about possible justifications for an infringement of the plaintiff's aboriginal right. Consequently, I do need to review this part of the Sparrow test. In light of these findings, I make the following declarations:

DECLARATIONS

1.      the plaintiff as a Mohawk of Akwesasne resident in Canada has an existing aboriginal right which is constitutionally protected by sections 35 and 52 of the Constitution Act, 1982 to pass and repass freely across what is now the Canada-United States boundary including the right to bring goods from the United States into Canada for personal and community use without having to pay customs duties on those goods. Goods for personal and community use includes goods used for sustenance, household goods and goods used for First Nations' custom. The aboriginal right includes the right to bring these goods from the United States into Canada for non-commercial scale trade with other First Nations.

As the plaintiff has explained, the aboriginal right does not include the right to bring into Canada any form of firearm, restricted or prohibited drug, alcohol, plants and the like. The aboriginal right is also limited to the extent that any Mohawk of Akwesasne entering Canada with goods from the United States will be subject to search and declaration procedures at Canadian Customs.

2.      insofar as any provisions of the Customs Act are inconsistent with the plaintiff's aboriginal right, they are, to that extent, of no force or effect.

     The plaintiff's appeal is allowed and the decision of the Minister of National Revenue dated November 23, 1989, demanding payment in the amount of $361.64 from the plaintiff is set aside. Costs to the plaintiff in the amount of $293,991.92.

         "William P. McKeown"

Judge

Toronto, Ontario

June 27, 1997

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                  T-434-90

STYLE OF CAUSE:              GRAND CHIEF MICHAEL MITCHELL,

                     also known as KANANTAKERON

                     - and -

THE MINISTER OF

                     NATIONAL REVENUE

DATE OF HEARING:          DECEMBER 10, 1996

PLACE OF HEARING:          OTTAWA, ONTARIO

REASONS FOR ORDER BY:      MCKEOWN, J.

DATED:                  JUNE 27, 1997

APPEARANCES:

                     Peter Hutchins

                     Anjali Choksi

                     Micha Menczer

                     Paul Williams

                         For the Plaintiff

                     Mr. Dogan Akman

                         For the Defendant

SOLICITORS OF RECORD:

                     HUTCHINS, SOROKA & DIONNE

                     Barristers & Solicitors

                     245, Rue St-Jacques

                     Suite 400

                     Montréal, Québec

                     H2Y 1M6

                         For the Plaintiff

                      Department of Justice

                     Justice Building, Room 532

                     239 Wellington Street

                     Ottawa, Ontario

                     K1A 0H8

                         For the Defendant

                     FEDERAL COURT OF CANADA

                     Court No.:      T-434-90

                     Between:

                     GRAND CHIEF MICHAEL MITCHELL,

                     also known as KANANTAKERON

     Plaintiff

                         - and -

                     THE MINISTER OF

                     NATIONAL REVENUE

                    

     Defendant

                     REASONS FOR ORDER