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The Wolastoqey title claim in N.B., a centuries-old issue and the honourable solution
Given that the Wolastoqey Nations hold a pre-existing and unextinguished plenary title to all of New Brunswick, the Wolastoqey Nations and the province could enter into a modern-day treaty to craft a resource revenue-sharing agreement based on existing constitutional and treaty law. (File Photo: Nick Martin/Unsplash)
In New Brunswick, a Mi’kmaw title claim by the Wolastoqey Nations is underpinned by a simple truth: the Mi’kmaw Nation of New Brunswick was unfairly dispossessed from its traditional territory by Euro-Canadian settlement without its consent or compensation. This title claim needs to be considered within its broader historical and legal significance, and with the recognition that Canadian governments have systematically ignored Indigenous land and treaty rights at least since Confederation.
The claim is at least decades long in its making and was filed in October 2021. It seeks the court’s declaration that the Wolastoqey have Aboriginal title to their traditional territory, which they never ceded by any treaty agreement with the Crown. The territorial claim still stands as an “existing Aboriginal right.”
An honorable solution exists to resolve this centuries-old issue.
Given that the Wolastoqey Nations hold a pre-existing and unextinguished plenary title to all of New Brunswick, the Wolastoqey Nations and the province could enter into a modern-day treaty to craft a resource revenue-sharing agreement based on existing constitutional and treaty law. That would be the honourable way to deal with the Wolastoqey title claim and would be a win-win solution for both parties without disturbing private interests and property.
Instead, New Brunswick Premier Blaine Higgs and his ministers have treated it as a confrontational issue. They have spoken out against the land title claim by stating that it would jeopardize private land and business interests. Their assertion shows great ignorance of Indigenous history, Indigenous law and how European settlers unilaterally claimed ownership of North American Indigenous territories.
However, Higgs and his ministers cannot be totally blamed. The provincial education ministries and the public school system in Canada have failed in their obligation to teach Indigenous history beginning with the Royal Proclamation of 1763 and all the way to section 35 of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal and treaty rights.
The notion of European discovery of the New World laid the seeds for the current disputes concerning North American Indian land rights. In 1823, in the case of Johnson v. M’Intosh, Chief Justice John Marshall of the U.S. Supreme Court reasoned that discovery gave legal title to the English, “which annulled the pre-existing rights of its ancient possessors.”
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In Canada in 1888, the Privy Council of England reasoned in the case of St. Catharines Milling that Indians held no legitimate title to their lands and were considered no more than mere leasehold tenants when British sovereignty was established in 1759. It said, “…the tenure of the Indians was a personal and usufructuary right, dependent upon the good will of the Sovereign… There has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title…”
Such denial did not abate until 2014, when the Supreme Court of Canada held in Tsilhqot’in that Aboriginal title confers ownership rights akin to fee simple title, similar to private land property rights. Indigenous nations such as the Wolastoqey of New Brunswick are now challenging the legitimacy of the English claim to North America based on the justiciable legal fictions of discovery and terra nullius (no one’s land).
Fifteenth-century popes, kings and Premier Higgs
The reaction to the Wolastoqey land title claim has been incredulity, which is emblematic of the Euro-centric attitude dating back to the 16th century, when the pope and European kings would argue that Christian nations had a God-given right to dispossess non-Christian nations from their lands. Higgs’s and his ministers’ assertion shows a great depth of prejudice against legitimate Indian land rights.
Let’s puts things in modern perspective: very little remains of the original Mi’kmaw traditional territory. Crown lands in Canada are extensive and they were carved out of Indigenous territories: 99.75 per cent of New Brunswick is occupied by the descendants of the original European settlers. New Brunswick encompasses 72,908 square kilometres. There are 32 Indian reserves totalling 183 square kilometres. That amounts to only 0.25 per cent of the province.
Premier Higgs’s position is hard to fathom or justify given that the Mi’kmaw Nations in the Maritime provinces never signed any land-sharing treaties with the British.
Obviously, the Maritime provinces ignored the dictates of the Royal Proclamation after Confederation in 1867. Nonetheless, the proclamation still applies throughout Canada not only via its geographic reach but also by the development of pre-Confederation constitutional law and the common law: Regina v Koonungnak (1963-64), which can be found in Aboriginal Legal Issues, Cases, Materials & Commentary.
Today’s hard truths
Canadians have to face some hard truths behind the Wolastoqey land title claim.
First, the British needed the co-operation of Indigenous nations for early European settlement. The Mi’kmaw Nation greatly assisted the early English settlers as the Maritime provinces were established. Diplomatic and treaty initiatives were essential requirements for the “peace, order and good governance” of the British colonies. The Maritime provinces have yet to express their gratitude to the Mi’kmaw Nation for the land and all that it provides.
Second, after the repatriation of the Canadian Constitution in 1982, Canada entered what is now the “rights recognition and reconciliation era” in relation to Aboriginal peoples as per section 35 of the Constitution Act, 1982. The Wolastoqey land title claim falls within that era and it probably won’t be the last title claim.
There is a solution to this impasse: the New Brunswick government needs to take a hard look at its current policies and legislation in relation to Indigenous legal interests in land and resources. Reconciliatory action is needed and it is a quintessential Canadian issue. It’s not solely Aboriginal.
Canada should take a cue from Australia’s High Court 1992 decision in Mabo, which holds that Australian land laws should not be based on terra nullius and that Torres Strait Islander peoples have land rights that existed prior to British occupation, which can still be exercised today. The facts are the same. Canada and Australia belong to the same British Commonwealth family, they share the same Indigenous land issues and have the same history of long denial of Indigenous land rights.
Past federal policies and legislation since 1867, such as the Indian Act under the Macdonald and Mackenzie governments, are to blame for creating today’s tensions. Safeguards for Indian land trusts and interests were routinely ignored but nonetheless remained constitutionally protected via the British North America Act (1867), i.e., sections 109, 146, and the Rupert’s Land Order, Term 14. The continuing denial of Aboriginal land rights did not abate until 1973 via the Calder Supreme Court decision. This led then-prime minister Pierre Trudeau to declare, “You Indians have more rights than I thought you had.” Thereafter, Canada instituted the Indian land claims policy to address the wrongful taking of Indian lands.
A legal obligation to honour Indigenous land rights
Section 146 of the B.N.A. Act, 1867, provided for the admission of Rupert’s Land and the North-Western Territory into Canada based on certain terms and conditions. They included the equitable principles doctrine, which provides as follows: “…upon the transference of the territories in question to the Canadian Government, the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines.”
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Also, pursuant to the Rupert’s Land and North-Western Territory Order of June, 23, 1870, Term 14, the transfer of all Crown lands and natural resources to the provinces is “subject to any Trusts existing in respect thereof, and to any Interest other than that of the Provinces in the same,” i.e., B.N.A. Act, s. 109. All provinces are constit utionally obligated to respect residual Indian trusts and interests existing on Crown lands. The current Euro-Canadian occupation of New Brunswick might be challenged on the basis that the requirements set out in the Rupert’s Land Order for settling Indian claims were not adhered to.
It is therefore clear that the Higgs government remains in continuing violation of the Rupert’s Land Order including section 146 of the Constitutional Act, 1982, and now sections 25 and 35 of the said constitutional provisions.
No evidence of land-sharing treaty in New Brunswick
Indigenous territories constitute high Crown trust responsibilities and, as such, orderly and lawful occupation of Indigenous territories is required. Indigenous nations in the provinces where land-sharing treaties are absent, such as New Brunswick, are entitled to be compensated for the Euro-Canadian occupation their lands. New Brunswick stands in direct violation of such law and such justiciable Euro-Canadian occupation in that part of Canada is contrary to our liberal-democratic ideals and respect for the rule of law.
The Wolastoqey title claim is based on the Peace and Friendship Treaties signed by the Mi’kmaw Nation and the British Crown between 1725 and 1778 for the sharing of resources. However, those treaties did not provide for the surrender of any Mi’kmaw land. Those historic treaties perhaps provide a template for a possible resolution, though.
An amicable resolution
Canada was built on the backs of Indigenous Peoples, their lands and resources. European settlers became prosperous. Indigenous Peoples did not, and that was not by chance. Natural resources revenues, to which First Nations have a rightful claim, create the wealth needed to drive the Canadian economy for all Canadians, including Indigenous Peoples. Yet, through restrictive and racist government policy and legislation since 1867, Indigenous Peoples have been totally excluded from sharing in such wealth. Importantly, such exclusionary policy is contrary to the spirit and intent of the Victorian Treaties (1871-1921) in Western Canada, otherwise referred to as the Numbered Treaties (1-11).
An amicable resolution to the title claim of the Wolastoqey Nations exists. It would go a long way toward improving their capacity to participate in the Canadian economy as equal partners in Confederation. New nation-to-nation arrangements such as resource revenue sharing and equity participation in resource development projects between the Mi’kmaw Nation and the New Brunswick government will have to be made. Such initiatives have been started with the Yukon, the Northwest Territories, Nunavut, British Columbia, Quebec, and Newfoundland and Labrador, to their credit. One thing is for certain: the status quo of government denial and exclusion is no longer sustainable.
This article first appeared on Policy Options and is republished here under a Creative Commons license.
Andrew Bear Robe
