Cape Breton Post
Debate on details of treaties.
HALIFAX — A massive federal response met the launch of Sipekne'katik First Nation's treaty fishery last week.
Five DFO rigid-hull inflatables and a Canadian Coast Guard Cape Islander checked and hauled traps set in St. Mary's Bay by First Nation fishers.
A surveillance plane flew back and forth up the coast and two large coast guard vessels cruised off the Saulnierville wharf that has been the fishery's base of operations.
A large fleet of RCMP cruisers, based at a command centre at the nearby Meteghan Fire Department, patrolled the gravel and broken pavement tributaries linking the wharves, used by First Nation fishermen, to Highway 1.
“We have a treaty right,” said Chief Mike Sack, wearing a hat emblazoned with Honour Treaties, when asked why the band had renamed its effort from the “moderate livelihood” fishery they launched last fall.
The latter term was coined by the Supreme Court of Canada in its 1999 Marshall decision.
But the decision that acknowledged a moderate livelihood treaty right also stated the authority to regulate, after consultation with First Nations, is held by the federal fisheries minister.
With Sipekne'katik fishers setting traps under a self-regulated treaty fishery and federal officers hauling them and arresting Sack for questioning on suspicion of inciting an illegal fishery, the question is raised: what do the treaties say?
PEACE AND FRIENDSHIP
The treaties that Sipekne'katik is basing its fishery upon were signed between various Mi'kmaq leaders and English governors in Atlantic Canada between 1726 and the early 1760s.
Enshrined when Canada passed its Constitution in 1982, they will figure largely in Sack's defence if he is charged, and in the future of Atlantic Canada's fishery if the treaty fishery launched by Sipekne'katik is expanded to other Mi'kmaq communities seeking more access to lucrative marine resources.
“It is agreed that the said Tribe of Indians shall not be hindered from, but have free liberty of Hunting & Fishing as usual,” reads the Treaty of 1752, signed by Jean-Baptiste Cope, chief of a community of Mi'kmaq living along the banks of the Shubenacadie River and governor Thomas Hopson.
“… and that if they shall think a Truckhouse needful at the River Chibenaccadie or any other place of their resort, they shall have the same built and proper Merchandize lodged therein, to be Exchanged for what the Indians shall have to dispose of, and that in the mean time the said Indians shall have free liberty to bring for Sale to Halifax or any other Settlement within this Province, Skins, feathers, fowl, fish or any other thing they shall have to sell, where they shall have liberty to dispose thereof to the best Advantage.”
This oft cited quote is the most explicit in all the treaties between the Mi'kmaq and English Crown regarding the right of the former to harvest and commercially sell their catch.
It was initially relied upon by the lawyers and academics arguing Donald Marshall had a treaty right to catch and sell eels from Pomquet Harbour, Antigonish County, in 1993.
But, by the time the case had made it to the Supreme Court of Canada for its famed 1999 Marshall Decision, the Treaty of 1752 argument had been dropped. Instead, they relied primarily upon the less clear Treaty of 1760-61 with Paul Laurent, chief of a Mi'kmaq community in LaHave. The only reference to trade in this later treaty reads:
“I do further engage that we will not traffick, barter or Exchange any Commodities in any manner but with such persons or the managers of such Truck houses as shall be appointed or Established by His Majesty's Governor at Lunenbourg or Elsewhere in Nova Scotia or Accadia.”
To understand why the treaty of 1752 argument was dropped and the ongoing debate over what the Mi'kmaq have and don't have a treaty right to, requires us to first walk back in time 250 years.
WARS FOR ATLANTIC CANADA
“You have to keep in mind the Mi'kmaq and the British fought a war that lasted 130 years,” begins Daniel Paul.
In his book, "We Were Not the Savages," Paul introduces us to a Mi'kmaq people with complex political, cultural, military, trade and social institutions that predated European arrival.
They resisted a twocentury-long inundation of European settlers and troops, militarily and by forging alliances despite still reeling from diseases borne by the first visitors to their shores, which decimated their population before the political struggle began.
“I don't think any of these treaties signed by British were signed in good faith,” said Paul. “They were more an effort to pacify the Mi'kmaq into submission.”
And, unlike the treaties signed with central and western Canadian First Nations, the Mi'kmaq never ceded any land.
In 1726, the British presence in what's now Nova Scotia consisted of just 400 troops stationed at Canso and Annapolis Royal, with the rest of the province settled by Mi'kmaq and Acadians.
The treaty signed that year with the Mi'kmaq, Maliseet (who lived along the Saint John River) and Pasmaquoddy (of modern day Maine and New Brunswick) saw these nations, known as the Wabanaki Confederacy, promise not to attack existing British forts or any future “lawful” ones, which has been interpreted to mean new settlements agreed to by both parties.
In exchange, the British promised not to interfere in First Nation fishing, hunting, planting and other “lawful activities.” The latter term is not spelled out in the treaty.
Peace didn't last and soon the Mi'kmaq, most of whom were allied with the French, were back at war with the British.
The founding of Halifax by Edward Cornwallis in 1749, without first seeking permission from the Mi'kmaq as promised in the 1726 treaty, further inflamed the situation.
After Mi'kmaq and Acadian raids on Canso and what is now Dartmouth, Cornwallis issued a bounty on the scalps of Mi'kmaq men or for women and children captured alive. He set the bounty at 10 guineas — the same price paid to the Mi'kmaq by the French for English scalps.
A series of bloody battles on land and sea followed with British soldiers and New England militias on one side and combined Mi'kmaq and Acadian militias on the other.
The Treaty of 1752, which among other things states the Mi'kmaw won't be interfered with when selling what they hunt or catch at English settlements, was an attempt to end the hostilities.
While governor Hopson signed on behalf of the British, the question of who the Mi'kmaq chief Jean-Baptiste Cope represented is a matter of debate.
And whether it was abided to by both parties.
“The Mi'kmaq believe, and still do today, that JeanBaptiste Cope signed (the Treaty of 1752) on behalf of all Mi'kmaq because he was grand chief of the grand council at the time,” York University history professor William Wicken, who testified on behalf of Donald Marshall to the historical record, told SaltWire Network last week.
The prosecution in R vs. Marshall responded with their own historian, Prof. Stephen Patterson from the University of New Brunswick.
Though reached by SaltWire Network, he directed us to his testimony and his writings on the subject of the treaties.
“(The Treaty of 1752) was never meant to apply to all of the Micmac people, as the wording of the treaty itself and all of the other evidence surrounding it, including the proclamation that immediately followed and the governor's subsequent report to his superiors in Britain, prove categorically,” wrote Patterson of the treaty in the academic journal Acadiensis.
“This was a treaty with one band which Halifax officials hoped would serve as a model for dealing with all of the Micmac people.”
He points to a letter written after its signing by governor Hopson to the London Board of Trade in which he states he had a treaty "with one tribe of the Mickmack Indians; tho it is but a small tribe I hope it may have the good effect to bring over the Rest but this is more to be hoped for than trusted to.”
In exchange for signing the treaty, Hopson sent Cope away with presents and shortly after sent a boat with three months provisions for 90 people to where the band was encamped on the Shubenacadie River.
The following year, Cope's son, Joseph Cope, arrived in Halifax, and according to British documents from the time, informed the governor that his father had failed to convince chiefs in Cape Breton and Chignecto to sign the treaty.
Joseph Cope asked that a boat be sent to pick up the band's provisions so they could settle near Halifax under the King's protection. Though sent, the vessel never returned. The only member of the crew to return was the Acadian translator Anthony Casteel, who had been employed by the English.
In a deposition he gave upon returning to Halifax in July 1753, Casteel said the vessel had been captured and the crew killed by Mi'kmaq. His life was spared because he was French and that while a prisoner of Cope's in Shubenacadie, he saw the treaty burned.
Hostilities resumed, with the British and New England militias trading reprisals with the Acadians and Mi'kmaq. In 1756, the British governor formally renounced the Treaty of 1752.
Fast forward 240 years to an Ottawa courtroom, and the lawyers/historians arguing on behalf of Donald Marshall's right to sell his eels dropped the Treaty of 1752 from their argument.
They relied upon the Treaty of 1760-61, which instead of guaranteeing the ability to sell their catch in English settlements (as had the Treaty of 1752) required them to sell it at truck houses established by the Crown.
Signed after the fall of Louisbourg in 1758, it removed a critical ally and trading partner to the Mi'kmaq, the treaty signed by Chief Paul Laurent of the LaHave band saw him promise peace with the British, not to work with the French, and to have his people's dealings with colonists fall under English law.
The Crown agreed to establish six truckhouses around Nova Scotia and New Brunswick to prevent unscrupulous practices by private British traders from undermining the new peace.
In its Marshall decision, the Supreme Court of Canada found the treaties acknowledged the right of the Mi'kmaq to continue as a fishing, hunting and trading people.
The court interpreted the right to trade their catch for “necessaries” at truckhouses into the modern context by stating it was a right to make a “moderate livelihood.”
“The treaty right is a regulated right and can be contained by regulation within its proper limits,” reads the decision.
In the Supreme Court's clarification issued shortly after, known as Marshall II, it goes further: “The paramount regulatory objective is conservation and responsibility for it is placed squarely on the minister responsible and not on the aboriginal or non-aboriginal users of the resource,” reads the preamble to Marshall II.
“The regulatory authority extends to other compelling and substantial public objectives which may include economic and regional fairness, and recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups. Aboriginal people are entitled to be consulted about limitations on the exercise of treaty and aboriginal rights.”
BACK ON ST. MARY’S BAY
With a huge federal presence on land surrounding, in the air above and on the water of St. Mary's Bay, Fisheries Minister Bernadette Jordan's only comment has been a written statement issued two days before the launch of
Sipekne’katik’s treaty fishery.
“Our government has tried to negotiate with Chief Sack to implement a plan for Sipekne’katik First Nation that meets the needs of their community. We have always been willing to collaborate on a moderate livelihood fishery plan, and we would welcome Chief Sack back to the table at any time to continue that work,” reads the statement.
In R vs. Marshall and Marshall II, the Supreme Court of Canada told the federal government to negotiate a regulatory framework with First Nations that allows for the Mi’kmaq to fish for a moderate livelihood.
Instead, the department spent over $585 million by 2009 buying up more than 1,285 commercial licences of varied species (10.5 per cent of all commercial licences in Atlantic Canada) and transferring them, along with training, boats and gear to First Nations.
On the day it launched its treaty fishery, Sipekne’katik put a request for quotes up on its website to lease out its nine commercial licences in lobster fishing area 34 (which includes St. Mary’s Bay). A similar request was issued Aug. 13 for its two commercial licences in lobster fishing area 33, off southern Nova Scotia.
After Sipekne’katik, Potlotek in Richmond County and Pictou Landing First Nations launched their selfregulated moderate livelihood lobster fisheries outside of the local commercial seasons last fall, Jordan’s office began attempting to negotiate agreements with First Nations around Atlantic Canada that would formalize the fishery under federal control.
Those negotiations are nation-to-nation and their details haven’t been released, but Sack told SaltWire Network last year that the minister offered Sipekne’katik 10 licences with 50 traps each in an area that wasn’t acceptable to his band.
The federal government is holding out the offer of moderate livelihood licences required by a Supreme Court decision, based upon the Treaty of 1760-61.
“You look at what (Halifax founder and governor Edward) Cornwallis himself had to say about treaties. He said treaties are nothing but force will prevail,” said Daniel Paul.
“I would hope somewhere along the line cooler heads prevail and they sit down and come up with a solution that is satisfactory. But the Supreme Court is probably where we’ll end up again.”
The Supreme Court has already interpreted the single sentence regarding trade in the Treaty of 1760-61 to acknowledge the right to a moderate livelihood fishery that falls under the fishery minister’s control.
The more expansive right acknowledged under the Treaty of 1752 remains to be tested in court.
If that happens, a few key questions will once again need to be debated: Did JeanBaptiste Cope represent all Mi’kmaq when he signed it? What happened to the sloop sent to collect the supplies of Cope’s band and did Cope burn the treaty in a cabin near Shubenacadie 269 years ago?