INTRODUCTION

As Mi’gmaq, we know that we have Aboriginal rights and title to our territory. Here, we will look at the legal basis for the assertion of our rights and title to our territory.  

We will explore rights and title from two angles: (1) the Mi’gmaq view and (2) the legal view (laws of Canada, policies of the Government of Canada that also affect provinces, as well as international law).

A Few Key Terms:
  • Inherent - pre-existing, hereditary or natural
  • Title - anything that provides a ground or basis for a claim 
  • Inviolable - secure from destruction
  • Right - a legally, morally, or traditionally just and obligatory claim
Sometimes these terms are used interchangeably but they do have slightly different meanings, as seen above.
Click here to see our English glossary, which explains some other key terms we may encounter in the claims process and negotiations.
MIGMAQ PERSPECTIVE
We, the Mi’gmaq of Gespe’gewa’gi, believe that our Aboriginal title and inherent rights to our land have come from our relationship with Creation. We have inviolable, pre-existing rights and title to Gespe’gewa’gi, which pre-date the coming of Europeans to our territory. 
Before Europeans arrived, we made treaties with other Indigenous nations. Then, in the eighteenth century, we participated in the signing of numerous Peace and Friendship Treaties and agreements. 
Between 1725 and 1779, a series of treaties, known as the Covenant Chain of Peace and Friendship Treaties were agreed to and signed by delegates of the Mi’gmaq and officials of the Crown. During each and every one of these negotiations, the Crown acknowledged that the Mi’gmaq people were a sovereign nation capable of signing in its own right and invited by the Crown to do so. 
 
  • The peace and friendship treaties do not contain any words or even hints of surrendering Aboriginal rights and title to our territory. These treaties are considered inviolable and form the basis of our claim.
LEGAL PERSPECTIVE
 
Canadian Legislation
When the Constitution Act, 1982 was drafted, it contained what is known as the “Canadian Charter of Rights and Freedoms”, all of which is applicable to each and every person in Canada.
Section 35:
  • recognizes and affirms the Aboriginal and treaty rights of Aboriginal peoples of Canada, 
  • defines what the term “Aboriginal peoples of Canada” includes (Indians, Metis, and Inuit peoples),
  • defines “treaty rights” to include rights that already existed in 1982 by way of previous land claims agreements and also any rights that may be acquired by later land claims,  
  • ensures that all treaty rights are guaranteed equally to male and female persons,

            and

  • commits the Government of Canada and provincial governments to this principle: the Prime Minister of Canada will invite representatives of the Aboriginal peoples of Canada to participate in any constitutional conference that affects Aboriginal peoples, so that they may participate in the discussions about proposed changes.
 
Canadian Cases
There have been a number of Supreme Court of Canada cases that have dealt with Aboriginal title.   Here are comments about some of them:

In this decision, which Delgamuukw won, the Court emphasized the importance of giving equal weight to the Aboriginal perspective in considering evidence of Aboriginal occupation and exclusive use of a territory.  The Court also insisted on the need for involvement and compensation of Aboriginal interests.  

This case has led to the idea of “consultation and accommodation,” an area for further development of Aboriginal law.  This idea is mentioned extensively in the Gespe’gewa’gi our Statement of Claim, Nm’tginen.

            and

These cases were decided together because of their similarity.  Both of these decisions were won by the Crown. In these two decisions, the Court appears to have created some more obstacles to Aboriginal peoples who are trying to establish title in the first place. 

The Court insisted that equal weight be given to Aboriginal and common law (Canadian law) points of view, but the Court also insisted on the notion of a “modern legal right” which seems to favour the Canadian law side.  

The Court also seemed to be reviving the idea that Aboriginal peoples have to prove that their land had a “central significance to their distinctive culture” as opposed to simply proving their occupation of the lands in question.

As shown in Nm’tginen, the Mi’gmaq have repeatedly met this test by proving that pur land base is of central importance to our culture and ways of life.


International Law

A number of international documents exist about the protection of human rights worldwide. Many of these are declarations of the United Nations and similar multi-national organizations such as the Organization of American States and the Council of Europe.
Of particular interest to Mi’gmaq and other Aboriginal peoples are the various declarations that talk about Aboriginal rights. These include, among others:

                  and

  “protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall  encourage conditions for the promotion of that identity.” 

Unfortunately, international law is not always followed by nations.  There are few ways that an international body like the UN can actually force governments to abide by these declarations.  Most of the time, interested citizens of a nation, or pressure groups within a country, try to embarrass or somehow politically urge a government into following the declarations.  This is what citizens of Canada have done with respect to trying to pressure the Government of Canada to uphold UN and other human rights statements and accords.
Here is an example of trying to apply pressure on government:
  • Canada stated that it was flawed and said that federal Government agencies “will continue to uphold their obligations to respecting the rights of Aboriginal people in this country.” 
  • Canada’s unwillingness to sign raised concern among the 1.3 million First Nations people living in Canada. The Assembly of First Nations and other political pressure groups are continuing to press Canada to join the declaration. 
 
GOVERNMENT OF CANADA AND GOVERNMENT OF QUEBEC
In 1995, the Government of Canada issued an important policy statement known as the 1995 Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government
This statement gives clear guidance about how the Government intends to recognize many Aboriginal rights under Section 35 of the Canadian Constitution.  In particular, the 1995 statement refers to various types of treaties that may be entered into between Aboriginal groups and the Governments of Canada and the provinces and territories.
In general, there are two types of Aboriginal claims in Canada that are commonly referred to as “land claims” – comprehensive claims and specific claims.  Comprehensive claims always involve land, but specific claims are not necessarily always land-related.
COMPREHENSIVE CLAIMS 
 
“Comprehensive Land Claims Agreements” arise and are negotiated in areas of the country, such as Gespe’gewa’gi, where Aboriginal rights and title have not been previously addressed by treaty or through other legal means (such as court cases).
These agreements are negotiated to create forward-looking modern-day treaties between Aboriginal claimant groups, Canada and the relevant province or territory.  
While each claim is unique, these agreements usually include such things as land ownership, money, wildlife harvesting rights, participation in land, resource, water, wildlife and environmental management, as well as measures to promote economic development and protect Aboriginal culture.  Many agreements also include provisions relating to Aboriginal self-government.
  • Comprehensive claims deal with the unfinished business of treaty-making in Canada.  
GESPEGEWAGI CLAIMS PPROCESS
Today, the governments of Canada and Québec are engaged in a reconciliatory process with the Gespe’gewa’gi Mi’gmaq. This was formally initiated in 2007 when we deposited our statement of claim, the Nm’tginen.  TheChiefs and Councils of the Mi’gmawei Mawiomi submitted the Nm’tginen to the communities of Gespeg, Gesgapegiag and Listuguj, and to the Governments of Canada and Québec.  

In their official transmittal letter, the leadership of the Mi’gmawei Mawiomi stated that,

  • …In this statement we are officially notifying both the Federal and Provincial governments that we have an un-ceded right to live and make a prosperous living on this territory…
  • …this document is not a land claim but rather a … statement intended to protect Mi’gmaq rights against further denial and encroachment by the Provincial and Federal Governments…”
 
CONCLUSION
  • …The Government of Canada is prepared, where the other parties agree, to constitutionally protect rights set out in negotiated self-government agreements as treaty rights within the meaning of section 35 of the Constitution Act, 1982.  Implementation of the inherent right in this fashion would be a continuation of the historic relationship between Aboriginal peoples and the Crown…”
With the 2007 filing of the Nm’tginen, the Gespe’gewa’gi Mi’gmaq began the process of initiating a claim process based on their constitutionally protected rights.  This claim is a continuance of the peace and friendship treaties we signed long ago with the Crown.
LEARN MORE
 
Read Section 35 of the Constitution Act, 1982, about Aboriginal rights
Read our statement of claim, Nm’tginen, in your choice of Mi’gmaq, English, or French
Legal References:

R. v. Marshall and R. v. Bernard 

Link to a list of many human and Aboriginal rights sites in international law