treaty-making period protecting our rights by david perley

Treaty-Making PeriodTreaty-Making PeriodProtecting Our RightsProtecting Our Rights

ByBy

David PerleyDavid Perley

David Perley, Tobique First NationDavid Perley, Tobique First Nation

Treaty-Making PeriodTreaty-Making Period(1693 – 1794)(1693 – 1794)

Aboriginal Rights: Rights of Native people arising Aboriginal Rights: Rights of Native people arising from their Aboriginal use and occupation of a from their Aboriginal use and occupation of a territoryterritory

Aboriginal Title: An Aboriginal people’s right to Aboriginal Title: An Aboriginal people’s right to ownership of their territoryownership of their territory

Inherent Rights: Rights specific to you because of Inherent Rights: Rights specific to you because of your ancestry; rights that are not given to you by your ancestry; rights that are not given to you by an external governmentan external government

Treaty Rights: Rights explicitly affirmed in a treaty; Treaty Rights: Rights explicitly affirmed in a treaty; a treaty is a formal agreement between two or a treaty is a formal agreement between two or more nations relating to peace, alliance, trade, etcmore nations relating to peace, alliance, trade, etc


Treaty-Making PeriodTreaty-Making Period(1693 – 1794)(1693 – 1794)

Maliseet, Mi’kmaq, Passamaquoddy, and Maliseet, Mi’kmaq, Passamaquoddy, and Penobscot societies were considered as Penobscot societies were considered as sovereign nationssovereign nations

““Nation” is defined as a “stable, historically Nation” is defined as a “stable, historically developed community of people with a developed community of people with a territory, economic life, distinctive culture, territory, economic life, distinctive culture, and language in common; people of a and language in common; people of a territory united under a single government”territory united under a single government”


Treaty-Making PeriodTreaty-Making Period((1693 – 1794)1693 – 1794)

Treaties with Wabanaki nations were Treaties with Wabanaki nations were entered into by the English in the name of entered into by the English in the name of their Kingtheir King

Treaty interpretations need to consider the Treaty interpretations need to consider the individual treaties as well as minutes of the individual treaties as well as minutes of the treaty conferencestreaty conferences

The Supreme Court of Canada has ruled in The Supreme Court of Canada has ruled in favor of Maliseet, Mi’kmaq, and favor of Maliseet, Mi’kmaq, and Passamaquoddy First NationsPassamaquoddy First Nations



Wabanaki nations take the position that the Wabanaki nations take the position that the following treaty rights were recognized by the following treaty rights were recognized by the crown:crown:– land rightsland rights– Hunting, fishing, and fowlingHunting, fishing, and fowling– Harvesting rightsHarvesting rights– Self-governmentSelf-government– Economic developmentEconomic development– Religious freedomReligious freedom– Social supportSocial support



“…“…we know that a king’s word is a king’s we know that a king’s word is a king’s word; a man’s word is his word for ever and word; a man’s word is his word for ever and ever….” (taken from a petition of Noel ever….” (taken from a petition of Noel Thomas Conish, a Mi’kmaq, on behalf of the Thomas Conish, a Mi’kmaq, on behalf of the Mi’kmaqs of Burnt Church, N.B., March 10Mi’kmaqs of Burnt Church, N.B., March 10thth, , 1862)1862)


Treaty RightsTreaty RightsCourt CasesCourt Cases

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



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



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



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



Bernard, 2005:Bernard, 2005:

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



Gray/Sappier/Polchies, 2007:Gray/Sappier/Polchies, 2007:

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


Treaty RightsTreaty RightsCourt Cases in N.B.Court Cases in N.B.

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

treaty-making period protecting our rights by david perley

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