Treaty-Making Period Protecting Our Rights By David Perley

David Perley, Tobique First Nation Treaty-Making Period (1693 – 1794)  Aboriginal Rights: Rights of Native people arising from their Aboriginal use and occupation of a territory  Aboriginal Title: An Aboriginal people’s right to ownership of their territory  Inherent Rights: Rights specific to you because of your ancestry; rights that are not given to you by an external government  Treaty Rights: Rights explicitly affirmed in a treaty; a treaty is a formal agreement between two or more nations relating to peace, alliance, trade, etc

David Perley, Tobique First Nation Treaty-Making Period (1693 – 1794)  Maliseet, Mi’kmaq, Passamaquoddy, and Penobscot societies were considered as sovereign nations  “Nation” is defined as a “stable, historically developed community of people with a territory, economic life, distinctive culture, and language in common; people of a territory united under a single government”

David Perley, Tobique First Nation Treaty-Making Period ( 1693 – 1794)  Treaties with Wabanaki nations were entered into by the English in the name of their King  Treaty interpretations need to consider the individual treaties as well as minutes of the treaty conferences  The Supreme Court of Canada has ruled in favor of Maliseet, Mi’kmaq, and Passamaquoddy First Nations

David Perley, Tobique First Nation Treaty-Making Period ( 1693 – 1794)  Wabanaki nations take the position that the following treaty rights were recognized by the crown: –land rights –Hunting, fishing, and fowling –Harvesting rights –Self-government –Economic development –Religious freedom –Social support

David Perley, Tobique First Nation Treaty-Making Period ( 1693 – 1794) “…we know that a king’s word is a king’s word; a man’s word is his word for ever and ever….” (taken from a petition of Noel Thomas Conish, a Mi’kmaq, on behalf of the Mi’kmaqs of Burnt Church, N.B., March 10 th, 1862)

David Perley, Tobique First Nation Treaty Rights Court Cases Syliboy, 1828: Chief Syliboy, a Mi’kmaq from Nova Scotia, was charged with and convicted of possessing pelts in contravention of the Lands and Forests Act. Syliboy argued that, as an Aboriginal person, he was exempt from the provisions of the act and he had by treaty the right to hunt and trap at all times. The court rejected Syliboy’s argument that First Nations rights under treaty superseded provincial regulations.

David Perley, Tobique First Nation Treaty Rights Court Cases Simon, 1985: James Simon, a member of the Shubenacadie First Nation, had been arrested for possession of a rifle and ammunition. He argued that the Treaty of 1752, which stated that the Mi’kmaq should have “free liberty of hunting and fishing as usual,” provided him with immunity from provincial hunting regulations. Simon lost in the lower courts but obtained a favorable decision in the Supreme Court of Canada. The Simon case recognized the Treaty of 1752 and related only to subsistence harvesting rights.

David Perley, Tobique First Nation Treaty Rights Court Cases Denny, Paul, and Syliboy, 1990: Mi’kmaq members from Eskasoni and Afton River were charged for fishing without a licence for cod and salmon. They argued that their Aboriginal right to fish for food had not been extinguished through treaty, other agreement or competent legislation”. The Nova Scotia Supreme Court agreed and ruled that the Mi’kmaq food fishing rights were recognized and took precedence over commercial or sport fishing.

David Perley, Tobique First Nation Treaty Rights Court Cases Donald Marshall Jr., 1999: A Mi’kmaq from Membertou First Nation, Cape Breton Island was charged with 3 offences set out in the federal fishery regulations (selling of eels without a licence, fishing without a licence and fishing during closed season with illegal nets). He argued that the Treaties of 1760 and 1761 guaranteed Mi’kmaq the right to fish for commercial purposes and to benefit from their resource activities. Marshall lost in the lower courts but won at the Supreme Court level.

David Perley, Tobique First Nation Treaty Rights Court Cases Bernard, 2005: Joshua Bernard, a Mi’kmaq was charged with possession of logs that were cut from Crown Lands. He argued that his status as “Indian” gave him the right to log on Crown land for commercial purposes as granted by the Treaties of Peace and Friendship. The Supreme Court held that there was no right to commercial logging granted in the Peace and Friendship Treaties of 1760.

David Perley, Tobique First Nation Treaty Rights Court Cases Gray/Sappier/Polchies, 2007: Darrell Gray, a Mi’kmaq of the Pabineau First Nation, was charged with illegally harvesting 4 bird’s eye maple trees from Crown land. Dale Sappier and Clark Polchies, both members of the Maliseet Nation at Woodstock, were charged with unlawful possession of timber from Crown lands. All three argued that they had an Aboriginal right and a treaty right to harvest wood for personal use. The Supreme Court agreed that they have an Aboriginal right to harvest wood for domestic use.

David Perley, Tobique First Nation Treaty Rights Court Cases in N.B. Thomas Peter Paul Case, 1997: A member of Pabineau First Nation who was charged for harvesting bird’s eye maple on land licenced to Stone Consolidated (Canada) Inc. with the intent of selling it at a profit. Paul argued that he a had a treaty right to harvest trees for commercial purposes. The lower courts agreed with his argument but the N.B. Court of Appeal overturned the decision. The Supreme Court refused to hear the case.