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November 3, 2023
On November 1, 2023, an important aboriginal and treaty rights case was released by the Quebec Superior Court, R. v. Montour and White. Montour attempts to address some critical flaws in the jurisprudence interpreting section 35 of the Constitution Act, 1982. It has the potential to push the law governing Aboriginal and Treaty rights under section 35 in a new and better direction.
The decision is 440 pages long (!), so this blog post is intended as a quick first look. OKT will be providing a more detailed analysis of this case and its potential implications in the weeks ahead.
As you read this, keep in mind that this is a decision of the Quebec Superior Court, which means it won’t be binding on other courts in other provinces or in the territories. There is also a good chance that either Canada or Quebec will appeal this decision because it creates new law. Still, we hope that some of the promising ideas in this judgment will be upheld if there is an appeal and picked up for their persuasive value by judges in other jurisdictions.