Charles Auds: Comment on Treaty Rights

17 08 2015

Yesterday, on CBC Radio One’s Information Morning (Fredericton, Moncton and St. John editions), lawyer Bruce McIvor spoke of two types of native land rights, treaty rights and aboriginal rights. [http://www.cbc.ca/player/News/Canada/NB/Audio/ID/2673502352/] Treaty rights are those that stem from the treaties signed between the Crown and native people; aboriginal rights are those that are inherent to the original or first peoples of any nation.

It’s law, right? That means it’s voluminous and it’s complicated, but can be boiled down to this: Article 35 of the Canadian Constitution Act of 1982 gives the natives of New Brunswick very strong treaty rights to Crown lands in this province, which courts have determined were never ceded by treaty and are being held “in trust” for the natives by the Crown. In other words, the Crown is responsible for seeing that the natives’ wishes are considered before that land is exploited for any purpose.

The aboriginal rights that attach to this fight are codified into international law under the UN International Covenant on Civil and Political Rights (to which Canada is a signatory nation), which guarantees self-determination to indigenous peoples.

And there’s a third right that the First Nations enjoy here in the Maritimes; homestead rights; recognized by English tradition, and (ironically) the very same legal grounds by which most of Canada was taken from its indigenous peoples. Here in the eastern Canada, unlike in the west, where the indigenous peoples were nomadic and were held not to “occupy” the land which sustained them, the Mi’kmaq have occupied these lands for uncounted generations; they’ve buried their ancestors here. In their view, the Mi’kmag of Acadia have always lived here, on land given them by the Creator; their role as protectors of the land is a sacred duty. Their fight is a matter of honor.

This struggle is gonna be fun to watch … Canada’s aboriginal population could very well be recognized as essential to Canada’s resource future.

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