Native land rights ‘complex issue’

Body of case law concerning specific definition still developing, something of a moving target

Re: Peter McKenna’s letter, “No surrender of P.E.I. lands,” (Feb. 5), I feel obliged to make a brief response. I might point out that for several years I was involved in negotiating native land claims in the Canadian North and feel I have something of value to add to this important discussion. The point of my earlier op ed piece was to indicate that the issue for P.E.I. specifically is actually more complex than John Joe Sark suggests.

There is no question that the Mi’kmaq of P.E.I. have never signed a treaty or otherwise “surrendered” their ancestral claim to the land, but what entitlement that provides is still open to interpretation. The body of case law concerning the specific definition of native land rights is still developing and as such is something of a moving target, in large measure flowing from Clauses 25 and 35 in the 1982 Canadian Constitution, which provide broad recognition of aboriginal rights.

More to the point, Mill River, the federal P.E.I. National Park, and all the other various provincial parks on the Island were built on lands purchased from private landowners (mostly farmers). These are not the wilderness lands west of the Appalachians that King George III referenced in his famous 1763 Proclamation. He gave no recognition of aboriginal property rights on Ile St. Jean (now P.E.I.) and by all accounts there were very few natives actually occupying the Island then.

This Island’s lands became private property when the same king authorized the Samuel Holland lottery, and ownership was subsequently passed on to the Island leaseholders upon joining Confederation in 1873. All property ownership on P.E.I. today stems from those events. This is why the issue is not as straightforward as Prof. McKenna cavalierly alleges.

I should also emphasise that I have a considerable respect for Dr. John Joe Sark, who I have known for many years, and whose op ed piece of Jan.25 began this discussion. This is a very important though complex subject and one in which all Islanders have a stake.