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Mitchell was a member of the Mohawk First Nation. He attempted to bring goods back across the border from the United States and refused to pay duty, claiming that he had an aboriginal right to trade that exempted him from having to pay duty on the goods. The goods were intended as gifts to another First Nation as a gift of friendship.

The Crown argued that there is no aboriginal right that excludes Mitchell from having to pay duties at the border, and that even if there is it is inconsistent with Canadian sovereignty and therefore necessarily invalid. Mitchell was successful at trial and on appeal.


  1. How is evidence dealt with when determining if an aboriginal right exists?
  2. Is Canadian sovereignty inconsistent with some aboriginal rights?


Appeal allowed.



McLachlin, writing for the majority, discusses the rules of evidence and how they relate to aboriginal rights claims, and how aboriginal rights are defined generally.

She states that in the Van der Peet test there are three things that you look for to help define the specific aboriginal right being claimed in a case:

  1. the nature of the action that the appellant is claiming was done pursuant to the right;
  2. the nature of the governmental legislation or regulation alleged to infringe the right; and
  3. the ancestral traditions and practices relied upon to establish the right.

In this case, the aboriginal right claimed is the right to bring goods north across the St. Lawrence River (not Canada/United States border, as this did not exist when the right is claimed to have existed) for purposes of trade.

McLachlin confirms that a flexible application of the rules of evidence must be used in aboriginal cases. This includes admitting evidence of post-contact activities to prove continuity with pre-contact practices, and meaningful consideration of oral histories. However, this does not mandate blanket acceptance of such evidence if it potentially prejudicial, irrelevant, or unreliable.

Oral histories may be admitted for two reasons:

  1. they may offer evidence of ancestral practices that would not otherwise be available, and;
  2. they may provide the aboriginal perspective on the right claimed.

Again, these cannot be prejudicial and must be reliable. Overall, the courts must interpret and weigh evidence in aboriginal cases with a consideration of the special relationship between the Crown and aboriginal peoples in light of s. 35(1). However, this does not permit a complete abandonment of the rules of evidence; particularly, aboriginal evidence should not be artificially inflated to have more weight than it can reasonably support.

In the case at bar, the evidence does not support the existence of the alleged aboriginal right. Therefore, the claim fails on that basis – but McLachlin goes on to make clear that geographic restrictions are necessary in rights linked to specific tracts of land, like hunting and fishing cases, but they are not overly important in cases that only deal with general rights (to trade, etc.). The geographic restriction is important in this case as it deals with the right to trade in a particular area – the border along the St. Lawrence River. Thus, if the aboriginal right were found to exist, then the Court would have to ask if the right to trade across the St. Lawrence was integral to the Mohawk.

McLachlin is hesitant to address the Canadian sovereignty question – she says that it is better left for a case that turns on the decision.


Binnie, in a concurring judgement, discusses the sovereignty question at length. He concludes that aboriginal people, although they have individual rights, are governed by the Canadian Constitution, and that their rights can be overruled by underlying principles such as sovereignty. For example, no one would argue that the Mohawks continue to have their aboriginal right to raid lands in Canada with their armies, because this is contrary to Crown sovereignty. The right in this case deals with border jurisdiction issues, which are fundamentally important to sovereignty, and overrule aboriginal rights. As a result, even if the right was found to exist and be integral it would be overruled by Canadian sovereignty.


  • When defining the aboriginal right in a particular case, look to:
    • the nature of the action that the appellant is claiming was done pursuant to the right
    • the nature of the governmental legislation or regulation alleged to infringe the right
    • the ancestral traditions and practices relied upon to establish the right.
  • Rules of evidence must be flexible in aboriginal rights cases, and it should include things like post-contact histories proving continuity of practices, and oral histories, however these are only included if they are reliable and not prejudicial.
  • Aboriginal evidence must be interpreted and weighted with the special relationship between aboriginals and the Crown in mind.
  • Geographical restrictions are relevant to aboriginal rights claims dealing with rights in a particular area – such as hunting, fishing, or trading in a specific area - however they are not relevant for general rights claims – such as a right to trade generally.
  • Canadian Crown sovereignty can potentially act to overrule legitimate aboriginal rights that are incompatible with Crown sovereignty; aboriginals must abide by the Constitution, and sovereignty is an underlying principle of the Constitution.