Reflections and Experiences on Treaties - Hon. Graydon Nicholas, Chancellor and Endowed Chair in Native Studies St. Thomas University
I want to share my experiences with the cases I was involved with before the Courts in New Brunswick that set precedents.
I was not brought up with any knowledge of our Treaties. I only became aware of them when I attended UNB Law School in 1968-1971. But the professors knew nothing about them while I studied there.
I was involved in Research in the summer of 1969 in Toronto on Aboriginal Rights, Treaty Rights, Land Claims and the beginning of Colonization in the Americas by Spain and Portugal with the blessing of the Catholic Church. The book that was published, Native Rights in Canada, was the first legal book in Canada.
I learned about the Court cases in Canada that were decided about the numbered Treaties and the Treaty of 1752 that was signed in Halifax, NS and in a decision of Acting County Court Judge Patterson in Cape Breton, NS on September 10, 1929, in R. v. Syliboy, (1928), 50 C.C.C. 389). Grand Chief Syliboy was convicted in violation of unlawful possession under the Lands and Forests Act, 1926 (N.S.), “fifteen green pelts, fourteen muskrat and one fox”. This case established what needed to be proved on two important issues; (1) The Treaty is valid and (2) personal connection to the Treaty.
I was hired by the Union of New Brunswick Indians [UNBI] in the summers of 1972 and 1973 to do research with Darrell Paul, Joe Knockwood and Marjorie Perley on Aboriginal Rights, Treaty Rights and Land Claims. They were a great team who believed in the importance of these three areas.
UNBI hired me to work full time from 1974 to 1988. I was involved in several legal issues and travelled to our communities to speak about the Indian Act, Treaties and Land Claims. I was also asked to represent our people in the Criminal and Youth Courts, Family Court and Civil Courts. The Chiefs of our Reserves were my bosses. They told me to stop defending our people in the Courts and concentrate on matters involving hunting, fishing and trapping under our Treaties.
I had very little success in defending our people who exercised their fishing rights because Parliament did not recognize our fishing rights under the federal Fishery Acts and Regulations. This was true across Canada.
I had more success in hunting and trapping cases because it was under Provincial legislation. The defendants were from Belijk [Kingsclear], Esgenoopetitj [Burnt Church], Sitanisk [St. Mary’s], Elsipogtog [Big Cove], Oinpegitjoig [Pabineau] and Metepenagiag [Red Bank].
I mentioned Metepenagiag [Red Bank] intentionally because the case of R. v. Gregory Paul, 54 C.C.C. (2nd) 506, ruled that the Treaties of 1779 and 1752 acknowledged pre-existing rights to hunt, fish and trap game and that the Game Act of NB would not apply to Mr. Gregory Paul. This was the highest Court that finally recognized these two Treaties. This was by using the provision of Section 88 of the Indian Act:
88 Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that those laws make provision for any matter for which provision is made by or under this Act.
There was another case entitled R. v. Atwin and Sacobie, [1981] 2 CNLR 99, a decision of Provincial Court Judge Blake Lynch on September 5, 1980, when the Judge Lynch ruled that the Treaty of 1725 overruled the Game Act of NB to protect the hunting provisions. Again, Section 88 of the Indian Act was used. The defendants were from Bilijk.
These cases gave us the political and legal precedents in the relationships with Canada and New Brunswick.
The significance of these two cases met the two legal issues from the Syliboy decision which ruled that the Treaty of 1752 was not valid. It had been terminated by outbreak of hostilities that took place in Halifax. Secondly, that was made with the mainland Mi’kmaq, given that Jean Baptiste Cope was Grand Chief at that time. And now you're here in Cape Breton, you cannot trace yourself back to the Treaty of 1752 because at the time, Cape Breton was under French control. You cannot bring that treaty right here.
We had to wait ninety days when the Prosecutor called and informed me on late September 1981 that the Province was not going to appeal the decision of Gregory Paul to the Supreme Court of Canada. It was a victory. It happened that 10 days later we met with Premier Hatfield in Fredericton.
I want to give a bit of background to the recognition of our Peace and Friendship Treaties.
In the Fall of 1970, Richard Hatfield defeated Louis Robichaud in the Provincial election of October 26, 1970, and became the Premier. The Chiefs of New Brunswick had a General Assembly meeting in the Madawaska First Nation area, and they challenged Hatfield. They asked him, Mr. Premier, what are you going to do about treaty rights in New Brunswick? Hatfield’s background was as a lawyer and a politician. His response was that if you could prove to me that there was a valid treaty in New Brunswick, and the court recognized it, he will be the first one in New Brunswick to jump up and say, hey guess what? You've got treaty rights. Guess what? They’re valid.
We gathered in the Cabinet room in the Centennial Building in Fredericton. Chief Albert Levi from Elsipogtog asked me to let him take the lead on this part of the agenda since he was present in Edmundston in 1970. I had to write all the information for the Chiefs to make their presentations. We were in cabinet chambers with Hatfield and several of his ministers. Chief Levi said, Mr. Premier, I want to remind you what happened in 1970 in Edmundston. Here's what we asked you, and you said you're prepared to stand up. Okay, we’ve got a decision of the highest court in the Province of New Brunswick, recognizing a treaty right, recognizing that Gregory Paul is not guilty against provincial law. Now, what do you want to tell the public of New Brunswick? We were waiting with anticipation like you are right now.
Hatfield said that’s only one Indian. I thought that Chief Levi would smack him in the mouth. Hatfield must have thought that with all the good legal advice he had, that it was a concession, that Paul was a descendant.
What Hatfield and the government did not know was that we were gathering more evidence at the same time. The persons who helped me in doing the research were Darrell Paul, Joseph Knockwood [Joe died in December 2023] and Marjorie Perley. It was Joe Knockwood who introduced me to an expert from the University of Moncton Acadian archives, Stephen White. We got a hold of some French birth records from the Catholic Church on Kingsclear First Nation through the research of Margorie Perley and shared them with Stephen White. With this important record, he told us, I can trace all your people back to the 1600s. I asked him, Steve, are you prepared to come to court and be an expert witness on that part of the treaty? He agreed and I called him to validate the treaty and benefits for the descendants. This is how we beat the Province of New Brunswick. We established the genealogy that was required.
I was involved in the decision of Simon v. The Queen, [1985] 2 SCR 387, where the Supreme Court of Canada ruled that the Treaty of 1752 was valid and applied to Matthew Simon who was Mi’kmaq from Nova Scotia and found not guilty of Lands and Forests Act, RSNS, 1967, s. 150(1). Chief Justice Dickson stated that:
None of the Maritime treaties of the eighteenth century cedes land. To find that s. 88 applies only to land cession treaties would be to limit severely its scope and run contrary to the principle that Indian treaties and statutes relating to Indians should be liberally construed and uncertainties resolved in favour of the Indians.
We have proven our Treaty Rights in the highest Courts in New Brunswick and Canada.
Today’s struggle is to have recognition of our land and territorial rights, and our Aboriginal Title. There have been numerous cases in the Supreme Court of Canada that have examined these concepts. This takes me back to the time of discussion around the White Paper Policy of June 1969. The Prime Minister was Pierre Trudeau and the Minister of Indian Affairs was Jean Chretien. At the time, Trudeau was asked about Aboriginal Rights and Treaty Rights. Here is his response:
Regarding Treaty Rights
We will recognize treaty rights – we will recognize forms of contract which have been made with the Indian people by the Crown. And we will try to bring justice in that area. And this will mean that perhaps the treaties shouldn’t go on forever. It’s inconceivable I think that in a given society, one section of the society have a treaty with the other sections of the society. We must be all equal under the laws and we must not sign treaties amongst ourselves and many of these treaties indeed would have less and less significance in the future anyhow.
Regarding Aboriginal Tights, Trudeau Reiterated His Ahistorical Rationale
Our answer may not be the right one and may not be one which is accepted but it will be up to all of you people to make your minds up and to choose for or against it, and discuss it with the Indians. Our answer is no. We can’t recognize aboriginal rights because no society can be built on historical “might-have-beens.”
-excerpt from Making Canadian Indian Policy by Sally Weaver U of T Press, 1981, p.179.
The definition of a Treaty was quoted by Chief justice Dickson in the Simon decision:
Definition from R. v. White and Bob BCCA, Justice Norris
The question is, in my respectful opinion, to be resolved not by the application of rigid rules of construction without regard to the circumstances existing when the document was completed nor by the tests of modern-day draftsmanship. In determining what the intention of Parliament was at the time of the enactment of s. 87 [now s. 88 ] of the Indian Act, Parliament is to be taken to have had in mind the common understanding of the parties to the document at the time it was executed. In the section "Treaty" is not a word of art and in my respectful opinion, it embraces all such engagements made by persons in authority as may be brought within the term "the word of the white man" the sanctity of which was, at the time of British exploration and settlement, the most important means of obtaining the goodwill and cooperation of the native tribes and ensuring that the colonists would be protected from death and destruction. On such assurance the Indians relied.
There was a decision of the United States Supreme Court by Chief Justice Marshall in Worcester v. Georgia, 31 US. 96 Pet) 515 [USSC 1832],
The very term “nation,” so generally applied to them, means “a people distinct from others.” The constitution, by declaring treaties already made, as well as those to be made, by the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words “treaty” and “nation” are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.
The final reference I want to share with you is Article 37 of the United Nations Declaration on the Rights of Indigenous Peoples adopted by the UN General Assembly on September 13, 2007,
Article 37
Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.
Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.
This will be the next legal journey for our Wolastoqiyik Nation, and I want to wish you the very best. Do not give up.
Our Ancestors did their best to protect our Nation. It is now our responsibility to do it for our future generations.
Woliwon!