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).
- 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
- 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.
- 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,
- 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.
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.
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.
- the 1948 UN Declaration of Human Rights that refers to the rights of all persons, regardless of where they live or their ethnic, linguistic or religious beliefs,
- the 1976 International Covenant on Economic, Social and Cultural Rights that refers to cultural rights and development,
- the 1993 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities that specifically says that governments must:
“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.”
- In September of 2007, the UN adopted its Declaration on the Rights of Indigenous Peoples. Of the 192 state members of the UN General Assembly, Canada was among only four nations that voted against this agreement.
- 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.
- Comprehensive claims deal with the unfinished business of treaty-making in Canada.
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…”
- “…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…”