[Please note: The following mainstream news article may contain biased or distorted information and may be missing pertinent facts and/or context. It is provided for reference only. -- S.I.S.I.S.]
The initial reaction to the decision of a New Brunswick court has been subdued, considering the potential ramifications. It is yet another case involving native rights to harvest natural resources pursuant to treaties that are, by Canadian historical standards, ancient. The uncertainty that results, however, is very current.
In this case, Thomas Paul, a Micmac Indian, was charged under the New Brunswick Crown Lands and Forest Act with illegally cutting a valuable bird's eye maple tree on Crown land - land on which a license to harvest timber had already been sold to somebody else. Mr. Paul took the position that, according to the terms of Dummer's Treaty of 1725, the land, and all that it grows, belongs to the Indians. The province took the view that Crown land is not subject to any such claims.
Stepping into the breach, the judge characterized himself as an "activist judge," one working to place this case in the larger historical context. He commented that Indians in New Brunswick have enjoyed the right to live on Crown land, and perhaps even cut timber there for personal use. To assess the scope of the use, however, it is necessary to look at the historical conditions that existed at the time the treaty was made.
The judge concluded that in 1725 not a single English person resided in present-day New Brunswick. Neither Dummer's Treaty nor the Royal Proclamation of 1763 extinguished native rights in the land. And, on that basis, he came to a bold conclusion, that "the Indians of New Brunswick do have land rights and that such are treaty rights... It does not matter what such rights are called. It is not a right restricted to personal use, but a full-blown right of beneficial ownership and possession in keeping with the concept of this is our land - that is your land."
This seems to mean that New Brunswick natives enjoy a right to harvest trees on Crown land, with no restriction. A commercial enterprise may have a licence to cut, but the treaty right apparently takes priority, throwing existing arrangements into some turmoil. How far do such rights extend? Is the native treaty right limited to cutting trees - or does it extend to all sorts of other activities? The New Brunswick government reportedly fears widespread poaching of trees and is considering an appeal of the decision. It is unlikely that the 15,000 New Brunswick Indians pose an overnight commercial challenge to the established logging interests. What this decision does give them, though, is a lever to use in negotiation with government, or private companies.
Judicial restraint, particularly in such complex circumstances, where the fundamentals of land use are in question, is imperative. Ultimately, our elected representatives may be faced with the difficult task of negotiating an equitable resolution to address native claims. Whether or not this decision stands, it sharply focuses the pressing national need to work to resolve the competing interests laying claim to Crown land and resources. One year ago, the Royal Commission on Aboriginal Peoples recommended that Ottawa reject the doctrine of terra nullius, which says that Canada was vacant land when European settlers arrived. After examining the applicable treaties in this case, the judge seemed to agree.
It is time for a concerted leadership effort to determine the scope of treaty rights, to bury the uncertainty that flares up each time they are litigated. Treaties have to be respected, but through negotiation they can be adopted to suit modern circumstance.
To the Editor:
I'd like to draw attention to the very last sentence of the following editorial that appeared in the Thursday, Nov. 6, Globe and Mail.
"Treaties have to be respected, but through negotiation they can be adopted to suit modern circumstance."
In what appears to be a statement of balance, the editor disarms the Native, empowers the Canadian (i.e. European-Canadian) and attempts to give all power to the nation-state of Canada. Much of Canadian and USA international law and national law (with regard to treaty rights) is based thoroughly on the doctrine and laws of the European colonial powers and their approach to the sovereign and independent Native American nations of the entire Western Hemisphere. This is the basis and foundation of the so-called "right of law." Native American nations are independent and sovereign. It is not the MicMac who is going in cutting trees on the land of New Brunswick. It is the entire province that has imposed and forced it's way onto the common land of the First Nations/Native American.
As much as neo-colonials, provincials and federalists want to disarm that power and complain about the presumed power the Native has (e.g. the editor's reference to Native American nations coming in to cut forests without restriction, license or guidelines), the opposite is true with regard to the power and potential that First Nations have to actually come to the negotiating table as equal sovereign powers. Essentially, Canada, USA, Mexico and other nation-states of the Western Hemisphere have not only willfully undermined the quality of life and well-being of the First Nations peoples, but have also employed a systematic policy of genocide (passive and active). Your complaints not only ring hollow, but also show a lack of cultural, historical and current understanding of justice and equity.
Your editorial centers on "no restrictions" as if, (even if you claim there is no immediate threat by a mere 15,000 First Nations people) there were going to be a population or group of First Nations people that would go around cutting down trees willy-nilly, expanding into a populated area with the force of law and might behind them, and fundamentally alter the well-being of the people who already inhabit the land. I'll be damned, that sounds like what the USA and Canada has already done to the First Nations people. Rest assured that the First Nations people understand what has been done to them and also understand what other populations will not put up with.
First Nations sovereignty alongside with Canadian sovereignty, not subverted by it!
Monday, November 10, 1997
This editorial seems to tell us a little of what to expect as Mi'kmaq struggle to retain the rights to our land; negotiation, negotiation, negotiation. Wonder when we're going to ask the clan mothers about these negotiations?