Mi’kmaw, Treaties, and the Rule of Law


The Mi’kmaq indigenous people on the east coast of Canada were among the first to make a treaty with Canada, and among the last to go to the Supreme Court and yet, as I write in 2020 their treaty rights are still not as clear as they should be and there is another dispute in the Maritimes.


The first Mi’kmaq treaty (though some say this was more of a Maliseet treaty, their cousins) was agreed upon in 1713. That treaty was called the Treaty of Portsmouth and was made in New Hampshire. It was followed by a second treaty in 1752 basically reaffirming what had been agreed upon. At that time of course, there was neither a country of Canada nor a country of the United States. It was a treaty between some of the east coast indigenous people and Great Britain. It was referred to as a treaty of “peace and friendship.” It permitted the indigenous people (as if they needed permission) the “free liberty for Hunting, Fishing, Fowling, and all other their Lawful Liberties and Privileges.” But what did that mean? Did provincial fishing laws apply to them?


In early cases that treaty was held to require certain actions on the part of the Mi’kmaq, such as obeying provincial  laws, but there was no mention of the obligations of the British. Those were conveniently forgotten. Funny how that happens. In 1984 the “other side” of the agreement was “discovered” in the public archives. Then it became clear that the British (now Canada) had to respect the right of the Mi’kmaq to hunt and fish. Before then the Canadian courts held that they did not guarantee aboriginal rights at all.

This matter was heard by the Supreme Court in 1985 in the case of R. v. Simon, where the court held that the law recognized that the treaty took priority over provincial hunting laws. This is what the court said,

“In my opinion both the Governor and the Micmac (as their name was spelled at that time) entered into the Treaty with the intention of creating mutually binding obligations that would be solemnly respected. The Treaty was an exchange of solemn promises between the Micmac and king’s representatives entered into to achieve and guarantee peace. It is an enforceable obligation between the Indians and the white man and, as such, falls within the meaning of the word “treaty” in s. 88 of the Indian Act. (emphasis added)”


But as so often happened the “white man” forgot about this again. In 1988 14 Mi’kmaq were arrested by a Nova Scotia Lands and Forests officer charging them with hunting illegally contrary to provincial legislation.

The charges against the Mi’kmaq were dismissed after the Supreme Court held that the Mi’kmaq did have the aboriginal right to hunt and fish for food and were exempt from provincial regulations when they were doing that. That was a right given to the Mi’kmaq by a Treaty freely negotiated with the British Crown in the 18th century and was still binding law in Canada. That is how Treaties work. They were not gifts granted to them by the crown, they were negotiated agreements  that resulted in a treaty that had the force of law. Ordinary provincial laws could not just override those treaty rights.

Again, non-native fishers were not done trying to overcome these rights. In 1996 in a case that made international news when white fishermen destroyed some of the boats of the Mi’kmaq fishers. Donald Marshall, Jr. who was also the subject of another famous case in which he had been wrongfully convicted and imprisoned for 11 years, was now convicted of catching eels out of season. This case also went all the way to the Supreme Court of Canada where the court declared that the treaty right “…is not a right to trade generally for economic gain, but rather a right to trade for necessities.” The court also determined that catch limits could be imposed on the Mi’kmaq by the province provided they allowed for a moderate livelihood for individual Mi’kmaq families. The treaty rights did not give absolute right to disobey provincial laws.

When this decision was made the lobster season was starting and the Mi’kmaq began to set up lobster traps. Many non-native lobster fishers objected vehemently as they felt this would threaten their livelihoods. At first the white protesters relied mainly on harsh words but then moved up to destructive actions. They destroyed more than 3,500 Mi’kmaq lobster traps and processing plants that were believed to be processing Mi’kmaq caught lobsters were vandalized. 3 Mi’kmaq were injured and a Mi’kmaq arbour used for sacred ceremonies was burned. These non-native fishers were not too keen on the rule of law. The rule of law was for natives, not them. Some of the Mi’kmaq also retaliated by burning some trucks of the non-native protesters as well as an Acadian flag. Neither side was perfect.

33 of the 35 Mi’kmaq communities agreed to a 30-day moratorium to allow negotiations to proceed but 2 did not. One of those was at Burnt Cove in New Brunswick. At that site there was a major confrontation and was watched by a large contingent of international press. Canada was in the news. I remember hearing about that case and wondering why indigenous fishers would be damaging their own fishery. I was ignorant in other words.

Later I learned that the reaction of non-native fishers, besides ignoring the law, was out of all proportion to the numbers of lobsters caught by the Mi’kmaq. At the time in the Maritimes about 2 million lobster traps were set. After the Supreme court decision the Mi’kmaq added about 12,000 traps. Burnt Cove, with a population of between 1,200 and 1,300 people was allowed 600 traps. The second Mi’kmaq community Shubenacadie Nova Scotia with a slightly larger population was permitted to have 800 traps. The non-native fishers however treated this as a flagrant attempt to decimate the lobster fishery on the east coast. As John L. Steckley and Bryan Cummings reported, “Generally, commercial lobster fishermen are permitted 300 traps each.”

The non-natives broke various laws to support their crybaby protest. The Mi’kmaq complied with the laws. Their Treaty rights by law gave them the right to fish for a moderate living. There can be no doubt that their actions were moderate. Hardly destructive of the fishery.

Of course the issue was never finally resolved. The federal government was given the right to regulate the fishery by the Supreme Court. As usual, as soon as the press left, and people stopped reading about the issue, successive federal government chose to do nothing more to avoid problems in the future, leaving the problems to reoccur again, as it did recently in 2020.

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