Boozhoo! We hope that everyone is well and staying safe.
FNT2T Life Long Learning has been watching the events taking place on the east coast with our relations, the Mi’kmaq (spelling may vary). Many First Nations share a common lived experience and rich history while at the same time remaining cognizant that we are diverse across Turtle Island. And when learning about a history, a people, a Nation, or an event, First Nations understand that it is best to learn direct from the source. First Nations in Treaty 2 Territory are not Mi’kmaq, but many understand the importance of upholding and respecting Aboriginal Rights and Treaty Rights. These are sacred.
Dr. Pam Palmater is an Indigenous activist. She is a Mi’kmaw (spelled as Palmater spells it) citizen and member of the Eel River Bar First Nation in northern New Brunswick. She has been a practicing lawyer for 20 years and is currently an Associate Professor and the Chair in Indigenous Governance at Ryerson University (source: PamPalmater.com). Dr. Palmater has posted a few videos to her YouTube channel speaking to the events taking place on the east coast. In one of her videos, Palmater states: “What is happening in Nova Scotia is not a lack of public education on Mi’kmaw rights. These [non-Native] Fishermen know all about Mi’kmaw treaties. They know very well that our treaties have been protected in the Constitution and that the Supreme Court of Canada has upheld our treaty rights to fish in the treaties of 1760-61. How do I know they know? Well it was the non-Native fishermen who appealed to the Supreme Court of Canada to try to have our legal victory overturned….We have the right to fish and to sell it. We have the constitutionally-protected Aboriginal right to do this and the constitutionally-protected Treaty right to do this. But even more powerful than any Canadian law is found in our Mi’kmaw laws. We are a sovereign Nation with our inherent powers and jurisdiction to govern our lands, waters, and resources according to our laws. And neither our laws nor our jurisdiction over all of Mi’kma’ki have ever been extinguished or surrendered. And now even International Laws protects our rights to self-determination and our land and resource rights…They all know this.” (source: YouTube, Pam Palmater).
The Kwilmu’kw Maw-klusuaqn Mi’kmaq Rights Initiative (website) writes: “Treaties of Peace and Friendship were made by the Governor of Nova Scotia with Mi’kmaq, Maliseet and Passamaquoddy communities in Nova Scotia. These are the same treaties that were upheld and interpreted by the Supreme Court in the Donald Marshall case. They include the right to harvest fish, wildlife, wild fruit and berries to support a moderate livelihood for the treaty beneficiaries. While the Mi’kmaq promised not to molest the British in their settlements, the Mi’kmaq did not cede or give up their land title and other rights” (source: https://mikmaqrights.com/negotiations/treaties ).
The Canadian Encyclopedia describes the Peace and Friendship Treaties made on the east coast with First Nations as “guarantee[ing] hunting, fishing and land-use rights for the descendants of the Indigenous signatories. The Peace and Friendship Treaties remain in effect today” (source: https://www.thecanadianencyclopedia.ca/en/article/peace-and-friendship-treaties). This is true for all treaties signed between Canada and First Nations.
It is so important to know and to understand First Nations peoples Aboriginal Rights and Treaty Rights. These are not always upheld by those with whom our ancestors signed treaties, but they remain and they are believed by many to be sacred. They are entrenched in Canada’s constitution. They are part of International Law. We often see organizations and businesses across Turtle Island with signs that read “Established in (year)”. This would mean that history and time is important to everyone; therefore, the establishment of treaties should be equally as important. We are told to remember important events, to never forget. This remains true for treaties. This remains true for First Nations who’ve been in their traditional territories since Time Immemorial.
There are many disputes taking place across Canada. In Wet’suwet’en Territory, they are fighting against Coast GasLink pipeline being built on their traditional territory. Secwépemc Territory is protesting the Trans Mountain pipeline expansion in which the Tiny House Warriors are building homes along the pipeline’s path. The 1492 Landback Lane involves land defenders from Six Nations of Grand Rapids protecting their traditional territory from development. Kanehsata:ke are questioning an archeological dig in their territory. And the Algonquin of Barrier Lake (Quebec) are calling for a Moose Moratorium to protect declining populations from sports hunting.
In Manitoba, the Wildlife Amendment Act took effect on October 10th, 2020. This Act prohibits night hunting which is 30 minutes after sunset and 30 minutes before sunrise. On October 9th, 2020, a news release was issued by Manitoba that stated the goal of this Act is to protect Manitobans while balancing Indigenous hunting rights with public safety (source: https://news.gov.mb.ca/news/index.html?item=49377&posted=2020-10-09). The word choice and phrasing, when used together, is problematic in that it suggests Indigenous hunting rights are a threat to Manitobans. They are not. Nor does the Act address how forestry activities have impacted moose populations. It is not plausible that (night) hunting, singlehandedly, would impact moose populations. A thorough study of most animal populations would surely result in numerous factors influencing animals and their habitats, particularly in a time of climate change. And we must remember, that First Nations (Indigenous) peoples have harvested from the earth in a way that has been sustainable throughout generations. This Act also states it will establish a Shared Management Committee in which at least half of its members are Aboriginal.
Over time, there have been a number of profound court cases (based in the Western judicial system) that have spoken to Aboriginal Rights and Treaty Rights:
The Sparrow Case (1990) resulted in the Sparrow Analysis which sets guidelines for any federal or provincial legislation that may interfere with an Aboriginal or treaty right. First, is the limitation that is being set by the legislation unreasonable? Secondly, is the legislation imposing an unnecessary hardship on Aboriginal peoples affected? And lastly, does the legislation deny rights-holders from exercising their right(s)?
The Van Der Peet Case (1996) resulted in the Van Der Peet Test which determines how an Aboriginal Right is defined. It has ten criteria for a practice to be considered an affirmed and protected Aboriginal Right under Section 35 of the Constitution. The fourth criteria states that a practice must have existed prior to contact. However, Justice Lambert is quoted by Kent McNeil: “[A]boriginal rights are evolving rights” (“The Meaning of Aboriginal Title”, p.147). This means that Aboriginal rights should be understood as evolving over time just like humans do as a means to survive and subsist. First Nations (Indigenous) peoples and their cultures are not static nor frozen, they integrate new tools and technologies into their way of life.
However, there are critiques of both the Sparrow and Van Der Peet tests. Indigenous Foundations (UBC) points out that these tests can also work to restrict Aboriginal rights and their scope, which can allow for the Crown to extinguish them. They also critique “the court system for being ethnocentric, and failing to apply the same criteria to non-Aboriginal populations [because] to do so would mean that only pre-contact European practices, for example, would be considered integral to Euro-Canadian culture” (Eisenberg qtd. by Indigenous Foundations: https://indigenousfoundations.arts.ubc.ca/van_der_peet_case/). First Nations (Indigenous) peoples can adapt and change while remaining, First Nations (Indigenous) peoples. According to Dr. Peter Kulchyski, First Nations (Indigenous) peoples retain Aboriginal rights by virtue of being Indigenous, the original peoples, of these lands and territories who’ve been practicing their ways including ways of subsistence since time immemorial.
It is for this reason, First Nations (Indigenous) peoples also hold Inherent Rights, sacred rights, which stem for the Creator who placed each in their traditional territories; that is, the Wet’suwet’en, Secwépemc, Six Nations, Kanehsata:ke, Algonquin, Mi’kmaq, Anishinaabek, Cree and countless more. The world is experiencing an unprecedented time. With a global pandemic, it seems that nature has reminded the world of who is in control as we watched the economy shut down for weeks and struggle to return. This is something that First Nations (Indigenous) peoples have understood since Time Immemorial.
Miigwetch. Renew and revitalize.
Sources: All the above sourced websites were accessed on Oct. 16/20. Print (book) sources used include “The Meaning of Aboriginal Title” by Kent McNeil in the book, Aboriginal and Treaty Rights in Canada edited by Michael Asch (UBC Press, 1997, pp. 135-154); and, Aboriginal Rights are not Human Rights in Defence of Indigenous Struggles by Peter Kulchyski (ARP, 2013, pp. 22).