Indigenous peoples in province did not surrender title to land through treaties, says Bruce McIvor
First Peoples Law Report: Canadian Lawyer – Last week, the Mi’gmawe’l Tplu’taqnn Inc. (MTI), a group of eight Mi’kmaq communities in New Brunswick, circulated a map identifying the lands to which they say the Mi’kmaq Nation holds title, and over which, the nation has governance rights and decision-making authority.
Bruce McIvor, a partner and founder at First Peoples Law, says similarly to much of British Columbia, Indigenous peoples in New Brunswick did not surrender title to the land through treaties, and are now being “increasingly assertive” on the issue.
To circulate a map in this way is standard practice, particularly for Indigenous nations on the West Coast, to put the government on notice that the nation asserts title over the land indicated, says McIvor. “In BC, First Nations have been doing this for decades,” he says.
It helps focus the government on its duty to consult, says McIvor. Since the government is aware that the nation asserts title, there is an obligation on the government to consult if it makes a decision affecting the land. With the ball in their court, he says the province should take steps to engage with the First Nations. “Indigenous nations are working well together, and the responsibility falls on the provincial government,” says McIvor. “The New Brunswick government is quite behind the times on coming to the table and having serious negotiations with Indigenous people about their Aboriginal title. They keep sticking their head in the sand.”
“The issue is not going to go away. In some ways, it’s similar to the position the provincial government in BC had 20-to-25 years ago. Now, things move on in BC and there are serious negotiations and agreements done between the provincial government and First Nations, based on their Aboriginal title over the land. New Brunswick has a lot of work to do to catch up with the rest of Canada on this.”
If the province wants certainty and economic prosperity for everyone, they will have to come to the table, he says.
In 2016, the Elsipogtog First Nation, a Mi’kmaq community and member of MTI, filed an Aboriginal title claim on behalf of the Mi’kmaq nation. McIvor represents Elsipogtog, and the nation’s claim applied to the district of Sikniktuk, one of seven geographical districts within the Mi’kmaq Nation’s title lands claimed in the MTI’s map.
That was followed in 2020 with the Wolastoqey Nation’s title claim to the St. John River, its watershed and surrounding area. According to the law firm, Olthuis Kleer Townshend, which represents the Wolastoqey Nation, its claim is “grounded in the Nation’s members’ and ancestors’ use, occupation, protection and stewardship of this territory from time immemorial.” The firm adds that the Wolastoqey’s Peace and Friendship Treaty from 1725/26 acknowledged the Nation’s title by noting the need for a “lawful settlement process” if others wanted to settle on Wolastoqey lands. The CBC reported that the Wolastoqey title claim encompasses lands spanning over half of New Brunswick.
David Kelly, communications officer for the Government of New Brunswick, says the province has been notified of the Mi’kmaq claims and they are currently under review.
“The province will address the Mi’gmaq’s position in due course and as part of that process must consider how it implicates the current claim by the Wolastoqey to land that is in the Mi’gmaq map area and all citizens of New Brunswick,” he says. “As a result of the Mi’gmaq’s position, there are First Nation claims against all land in New Brunswick. First Nations are claiming the entire province of New Brunswick, including the majority of the Bay of Fundy and the Northumberland Strait.”
The MTI’s map is a “necessary step” to protect the inherent rights of the Mi’kmaq Nation, said Kenneth Francis, spokesperson for Kopit Lodge, an Elsipogtog-based conservation non-profit. This step is also “consistent with the Crown’s solemn promises under the Peace and Friendship Treaties,” he said.
“New Brunswick is, to a large degree, in a similar situation to much of BC, where there’s no argument that there has been surrendered title through treaties,” says McIvor. “There are Peace and Friendship treaties from the 1760s, but no one – that I’m aware of – takes the position that those treaties surrendered Aboriginal title to the land.”
“The communities of the Mi’kmaq Nation, including MTI and Elsipogtog, have never surrendered Mi’kmaq title,” said Francis. “The Peace and Friendship Treaties signed by our ancestors set out mutual promises with the Crown to guide our ongoing relationship on our lands and ensure peace. This relationship recognizes our continued right to make decisions over our title lands.”
Elsipogtog said in its announcement that its members will work with MTI to ensure the province initiates “meaningful discussions” recognizing title and rights.