Some facts behind the Joshua Bernard Decision

FREDERICTON -- In all of the hand-wringing about the effects of the Bernard Decision on non-Aboriginal people there has been practically no one unconnected to Aboriginal People who applauds the decision. This worries me, and it tells me a lot. Clearly, either no one knows, or no one is speaking about, the most important element of this story -- the generations and centuries of suffering and desperation experienced by Aboriginal People, as a result of the theft of their lands, resources, and way of life, a theft that explains the conditions that Aboriginal People still suffer today.

How do we know about the suffering? A most revealing source is to be found in the abundant government records that show a dramatic increase in appeals for assistance from and on behalf of "starving, sick, and infirm Indians" beginning in the 1820s. It can be found in the death records of Aboriginal families who commonly suffered multiple deaths in short periods from the combined effects of recurrent disease and starvation. Another rich source lies in 19th century descriptions of Aboriginal People, usually written by visitors with no stake in hiding the poverty. In contrast to government reports we have such descriptions as the following written in 1873:

"Thus shod in her native mocassins, with her battered features and stealthy gait, she may be seen prowling about the streets in broad daylight, at once a conspicuous and sad picture of utter wretchedness and poverty."

While such writings are starkly revealing of the wretched conditions in which Aboriginals were living, they tend to blame Aboriginal People themselves for their poverty and suffering, a tendency which serves only one purpose extremely well - that of concealing the true reasons for the poverty. For a deeper understanding of the connection between Aboriginal poverty and the theft of their lands one needs to read only a few books, such as Gustavus Myers' History of Canadian Wealth (1914), or R.T. Naylor's Canada in the European Age (1987), or Neu and Therrien's Accounting for Genocide (2003).

Beginning in the days of the Pre-Loyalists, when New Brunswick was still part of Nova Scotia, it became a standard practice of government officials to help themselves, and their cronies, to the best lands in the Province. As Brebner (1969) has put it: "Naturally the Halifax officials had their fingers in the pie from the beginning." In ten short years more than three and a half million acres of Mi'kmaq. Maliseet, and Passamaquoddy lands had been granted away for a song; and a pattern of patronage and personal corruption had become entrenched. These grants also represented an enormous violation of imperial law, particularly the Royal Proclamation of 1763, which declared that no one could take possession of Indian lands unless they had first been ceded or sold by Indian nations to the Crown.

Within a few years after the American Revolution, however, every inch of Maliseet land on the St. John River up to and beyond Woodstock had been granted and settled by upwards of 10,000 Loyalists, in complete violation of the Royal Proclamation. For Maliseets it was the beginning of yet another diaspora, for the land and the river had been their sole source of life for millennia. Even small patches of land that had been previously reserved for Maliseets were now granted away. Of course the wealthiest and most powerful Loyalists got the largest grants, some consisting of thousands of acres of prime land. And, it was from those lands, the lands of Aboriginal People, that the descendants of the Loyalists became wealthy, simply from the "increment of the lands granted to them". (Myers p.81)

With huge demands for timber in Great Britain, and rich forest resources on both private and public lands (the so-called Crown Lands), enterprising farmers and wealthy landowners alike turned early in the 1800s to full-time lumbering. First there was the masting trade, then the square timber trade, and by 1825, "New Brunswick was supplying nearly twice as much timber as the rest of British North America". As the richest group of landowners, many of the old loyalist families became the fabulously wealthy "timber barons who controlled provincial affairs and forest resources simultaneously". (Naylor, pp. 177-185) In effect, these few families were the main beneficiaries of the enormous revenues from a resource stolen directly from Aboriginal Peoples.

To compound the tragedy, the massive lumbering almost completely denuded large areas of woodlands, which practically eliminated hunting as the major source of sustenance for First Nations. And if the forests were not denuded by lumbermen, they were soon denuded by the great Miramichi fire of 1825, which fed on piles of dry scrap wood left everywhere by careless lumbermen. Meanwhile the rise of the deals industry (sawn logs) meant that not only would the rivers be regularly choked with logs, but also with sawmills and sawdust, which quickly took their toll on fish, another important source of sustenance for First Nations.

Beginning in the 1830s the provincial legislature began promoting the sale of huge chunks of un-granted lands (really Aboriginal lands) to foreign interests in order to boost provincial coffers and stimulate immigration. And in 1837 the legislature finally wrested full control of the remaining 11 million acres of so-called "crown" lands from the Loyalist-dominated executive branch in New Brunswick only to turn them over to capitalists and railway promoters who were poised to "plunder" both public monies and the "crown" lands. Within a few decades over a million and a half more acres soon passed into the hands of the wealthy railroad promoters, who, for the most part, were the legislators themselves! In Myers words "almost the whole personnel of the government of the Province of New Brunswick were among the incorporators" of one railroad in 1851. In addition to voting huge government subsidies for the project, they also voted themselves a huge land grant five miles wide on each side of the railroad for its entire length. (Myers, pp.163-164)

Now suddenly the abject poverty of Aboriginal People in the Maritimes becomes perfectly comprehendable, for it appeared only after the timber barons began raping the forests, and it worsened as railroad promoters/legislators began grabbing and developing prime lands for personal benefit. With hunting and fishing territories being lumbered or settled so rapidly nearly every Aboriginal person in the province became desperately dependent on assistance from the very people who were robbing them blind. As if to pretend that it had nothing to do with the rape and plunder, the New Brunswick government began very early showering Aboriginal People with regular displays of attention and false generosity in what proved to be the ultimate hypocrisy. That Maliseet, Passamaquoddy, and Mi'kmaq people were now reduced to starvation and begging in their own lands is a huge blot on New Brunswick history. It is also a story that has remained virtually unchanged, and unknown, into the present, and for very good reason.

Unbelievably, this story of the dispossession of First Nations in the Maritimes did not end with Confederation. In fact, the patronage and conflict of interest on the part of railway promoters who were also government legislators, soon escalated into widespread price-fixing, bribery, blackmail, and fraud. Only now it was most federal parliamentarians who also engaged in the practices. (Myers 289-90) Meanwhile, their patronage appointees in the Department of Indian Affairs exercised increasingly coercive control over First Nations, and willingly engineered many questionable deals for lands on reserve on behalf of their railway bosses in Parliament. Uncovering and detailing the improprieties of these deals will be the subject of investigations for years to come.

At the Provincial level Native hunting and fishing territories on so-called "crown" lands continued to be sold or leased for a pittance to huge lumbering interests closely connected with government. With the advent of the multi-national corporations in the 20th century this story continued to repeat itself. Wealthy and powerful government officials and their friends continued to gain huge profits from the resources of the land, while Maliseets, Mi'kmaqs and Passamaquoddies became increasingly shut out of any benefit, other than as lumber-men and guides, from their ancient hunting and fishing territories. And they continued to be the poorest of the poor. From time to time governments would shower Aboriginal People with attention, and sometimes money, to feign friendship and compassion while arresting and criminalizing Aboriginals for accessing resources, on both reserve and "crown" lands.

Through it all one would never have known that Aboriginal access to the resources of their lands had been solemnly promised in an important pre-confederation treaty, the Treaty of 1725/26. But since Aboriginal People no longer had an actual copy of that treaty they were usually arrested, charged, stripped of their gear, and thrown into jail, even though several copies of the treaty existed in government archives in Halifax and Ottawa. And for a while Aboriginals were even forbidden by the Indian Act to hire legal services to defend themselves. It was only by our own efforts that a copy of this treaty was finally located in 1983, and for the first time ever, two Maliseet hunters won recognition in court to access game resources unmolested.

With so many powerful interests at stake, however, the New Brunswick government refused to respect this newly discovered treaty, though bound to do so under the 1982 Constitution Act and the 1985 Supreme Court decision in the case of Simon. Instead, it chose to appeal the case of the two Maliseet hunters, not once but twice. And when it lost the last time it chose instead to offer huge bribes to First Nations communities to give up accessing resources in return for money and jobs. Had the province respected the treaty it would have moved to bring its own laws into line with the it, in the same way that Aboriginal nations have been required to keep their laws consistent with federal and provincial laws. The province could also have taken the opportunity to re-educate the public on the matter of the newly found treaty. Instead, not a word was spoken, either in newspapers or in any school textbooks published after 1983.

It is difficult not to see this quashing of information as yet another attempt to hide the truth, in the interest of maintaining the wealth and power of the few who benefit most from "crown" lands. The strategy certainly worked when court decisions recognizing Aboriginal rights were handed down in 1997 and 2000. Instead of directing their anger at a government that had historically enriched its own members and friends, and hidden the truth of the treaties and the original theft, the people of New Brunswick openly directed their anger and frustration at Aboriginal People.

While the Bernard decision speaks only of Miramichi Mi'kmaqs, the implication is that Mi'kmaqs, Maliseets and Passamaquoddies, alike, can no longer be shut out of access either to the (Crown) lands or to the natural resources they never surrendered. That no one outside of the Aboriginal community is applauding the decision suggests that the stage is being set for yet another confrontation in which ordinary people will get used (once again) as tools to protect the wealthy and powerful interests now benefiting from "crown" lands. Many of these ordinary New Brunswickers have built their livelihoods around the extraction of natural resources that were stolen from Aboriginal People, but they were never told the truth. It is time now that the truth, as enunciated by former Chief Justice Daigle in Bernard, be given due attention. Aboriginal People in this province never surrendered either their lands or their access to the resources. If the province does not show some leadership in public education on these matters, then there is little question that Aboriginals will be forced once again to defend themselves from the misdirected anger of non-Aboriginals.

Negotiation now appears to be the only way through this situation. Unfortunately, the Provincial government has done nothing to demonstrate leadership in this area, either. At a meeting with chiefs held this week to "discuss" the moose hunt, the position of the provincial government was predetermined, and the meeting was only a pretext to announce that position as a unilateral ultimatum. If this was negotiation then Aboriginal People are headed for a rough ride.

Considering that the Bernard decision has implications for all resources, including moose-hunting, the ultimatum seems to indicate the province's stubborn determination to continue taking the hard line of arresting Aboriginals and litigating each resource separately. What the province seems to be gambling on is the hope that Aboriginal leaders might be desperate enough to trade off access to yet another resource for the crumbs of money and jobs, as in the fishery agreements. Though the Bernard decision is a strong and promising chip for Aboriginal leaders, it is obviously not strong enough to force the province to the negotiating table as partners just yet.

Granted, the province clearly intends to appeal the Bernard decision, but with a year to negotiate before implementation, it seems to be studiously avoiding the inevitable, and still treating Aboriginal People as beggars and underlings to be controlled by mandate, muscle, and money. And it is beginning to look ridiculously like the tail wagging the dog.

As for the strategy of throwing money at Aboriginal People, the lie now needs to be exposed in the recent initiatives of so-called cooperation and sharing in such areas as archaeology, economic development, and highway building. Such wining and dining has always been intended to buy our good will in the hope that we will go away and never ask the big questions, like how much money the province and its wealthy friends have been earning from lands and resources stolen from us. As long as the theft has gone un-recognized and un-addressed by the courts the province got away with playing the game.

Now the tide has turned. With the Bernard decision, it is hoped that Aboriginal communities will be able to stand firm and not be pressured into bargaining away our access to any more resources at the very moment that the courts have begun to recognize our claims to Aboriginal title. If not, we will have lost for winning.

*Andrea Bear Nicholas is Chair in Native Studies, St, Thomas University, Fredericton, New Brunswick. This article was written on 3 September 2003.

"I'm really getting tired of threats from the fishermen. They've already made their livelihood. I think they should just leave us alone," said Burnt Church Chief Wilbur Dedam.
Native fishermen say the Supreme Court ruling gives them the right to set as many as 5,200 traps annually, but Ottawa says they are allowed to set only a fraction of that number. Last week police arrested 14 Indians and seized four fishing boats.

Copyright 2000 Reuters. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

Two battles are under way at Burnt Church, New Brunswick. One -- a skirmish --has been all over the headlines; the other -- a revolution -- has been entirely ignored.

The skirmish, between natives and white fishermen, is over whether Mi'kmaq bands are entitled to control a small portion of the lobster and other fisheries. Though won last year by the natives at the Supreme Court, this skirmish has simmered ever since because the losers -- the white lobster fishermen and the federal government's Department of Fisheries and Oceans (DFO) -- don't accept the Supreme Court's decision. The parties may need to go back to the courts for a clarification, but the end result is crystal clear: The natives have constitutionally protected property rights to the fisheries; the non-natives do not. The natives' superior right to the fisheries will stand.
The revolution, which is being fought among the natives themselves, is over who controls the fishing rights the Supreme Court has decreed belong to the Burnt Church natives. Is it the Burnt Church establishment, headed by Chief Wilbur Dedam, who has operated a patronage regime with the assistance of the federal government? Or is it the young renegades, headed by Lloyd Augustine, Burnt Church's hereditary chief, who are attempting a radical democratization of the band's resources? If Mr. Augustine and the revolutionaries have their way, the Burnt Church community will usher in sweeping free market reforms that could spread like wildfire to native communities across the country, profoundly modernizing the native economy and increasing native wealth.
Before the Supreme Court's decision last September, which decided that all Mi'kmaq were entitled to a moderate income from the land, the Department of Fisheries and Oceans had a cozy arrangement with the leadership of Indian bands. In the case of Burnt Church, for example, the fisheries department provided the band council with 13 lucrative lobster licences, each with the right to set 325 traps. The band council members then distributed those 13 licences to a handful of friends and family members. The rest of the Burnt Church community, many of whom lived in abject poverty, were out of luck.

This type of patronage system typifies life in native bands, which are creatures of the federal government's Indian Act. The Indian Act chief, as opposed to the hereditary chief, is little more than the federal government's surrogate. His chief purpose -- some say his only purpose -- is to administer federal government programs by dispensing federal government spoils. Young natives have been especially critical of the Indian Act system.
After the Supreme Court decided the Mi'kmaq were entitled to earn their living from fishing -- not just to fish for food and ceremonial purposes -- the young natives had a prize worth fighting for. They set out for sea with a vengeance to claim their long-denied fishing rights from the white man, and they did so brandishing a home-grown fisheries plan designed to break the DFO-backed political patronage system.
Mr. Augustine and his young renegades want all Mi'kmaq -- not just holders of DFO licences -- to share equally in the lobster fishery. Their plan entitles every member of the Burnt Church community -- each of its 1,400-odd men, women and children -- to four lobster traps each. Because four traps per individual, or 16 traps for a family of four, would rarely make business sense, and because many Indians wouldn't be interested in fishing in any case, Mr. Augustine's plan calls for the creation of a free market in fishing rights in which Indians would come together to form partnerships or buy and sell lobster traps among themselves, to create logical business units.
"Every family would decide what's best for itself," explained Mr. Augustine, who put the plan to depoliticize the fishery to a referendum at Burnt Church. "The vote was 326 in favour of our plan, eight for DFO," he reports, adding that other Mi'kmaq fishing communities are considering adopting the Burnt Church approach.
In Canada, no individual holds constitutionally protected property rights, a drawback that hurts each citizen's ability to accumulate wealth and to conduct business confidently, without fear of government interference. The Mi'kmaq could soon prove an exception to this sad state of affairs. The fishing rights the Supreme Court gave to the Mi'kmaq are communal -- they belong to the Mi'kmaq as a group, not to individuals. But the Mi'kmaq can convert these constitutionally protected communal property rights into constitutionally protected individual property rights because Canada's Constitution not only recognizes treaty rights, it also recognizes native law. Mr. Augustine's plan, if it is adopted by the Mi'kmaq Grand Council, a centuries-old traditional law-making body, would be protected by the Canadian Constitution. That protection would make the Mi'kmaq the only individuals in Canada with property rights that our federal and provincial governments couldn't rescind, as, for example, the federal government can rescind the licences of white fishermen.
Would the Mi'kmaq Grand Council approve Mr. Augustine's plan? "It would. No doubt in my mind," said Alex Denny, a member of the Grand Council. Do the Mi'kmaq favour a market system in which natives can trade their fishing entitlement? "This is what you need," states Mr. Denny, who as a Mi'kmaq Grand Captain is near the top of this First Nation's traditional hierarchy. "We have to be able to trade with whoever gives us the best deal, for the best advantage."
Would the Assembly of First Nations, Canada's national Indian body, accept policies that promote individual property rights and free markets? "We support whatever position a First Nation community chooses," states Jean LaRose, the Assembly of First Nations' Acting Communications Director. "If the Mi'kmaq, or any other First Nation, adopts a market-oriented approach, it would have the full support of the AFN."
Strong, tradeable property rights in fishing can be a powerful economic and environmental force, as shown by the experience in New Zealand, Australia and Iceland, jurisdictions that have adopted them. Because fishermen there don't fear that others will plunder the seas if they don't plunder them first, fish stocks have soared, and fishermen who hold individual property rights in fish have become wealthy. Wealth has also started to come to New Zealand's natives, the Maori, following treaty settlements in the late 1980s and early 1990s that gave them 10% of some fish species and 20% of the others. The Maoris -- through tribes, through corporations and as individuals -- soon began buying out white fishermen's rights on the open market, and now control 57% of the country's fisheries, as well as New Zealand's largest fish processing company. Although Maoris are less affluent than New Zealand's non-natives, the average wealth of the Maori has risen dramatically over the past decade.
In Canada, the Assembly of First Nations sees similar entrepreneurial potential. The AFN takes pride in the business prowess of Indian youth who, unlike Indians older than 30, are likelier to start their own businesses than non-natives. To encourage what it sees as an important and encouraging trend, the AFN formally began promoting youth entrepreneurship two years ago. "We want to start with the young to promote a class of adult entrepreneurs," explained Bradford Kelly, an AFN policy officer.
More entrepreneurship, and less government dependence, suits the East Coast Mi'kmaq just fine. "Government money is fool's gold," says Mr. Denny, who is frustrated by a federal government bent on maintaining control over its citizens. The government insists on meddling in the affairs of others, thinks it knows how to pick winners, and refuses to let the entrepreneurial talents of its people thrive. "You'd think that government, especially here in Cape Breton, would learn from the steel plant," he says.
Soon, all Canadians may learn from the natives. In New Zealand, because the Maoris so rigorously and so successfully pressed their case for strong property rights, the government ultimately decided to level the playing field by strengthening the property rights of non-natives, too. Canada's white fishermen -- indeed, all of us -- may demand strong individual property rights once Canada's natives secure them. As in New Zealand, Canada's First Nations may in the end bring the white man back to that most important of first principles: property rights.

PUBLICATION The Fredericton Daily Gleaner DATE Monday February 19, 2001 BYLINE CHARLES MOORE

Some of Canada's jurists seem to be hell-bent on stoking the fires of racial resentment. In the September 1999 Supreme Court of Canada decision in R. v. Marshall, the five justices of the majority endeavoured to write resource exploitation rights into an obscure, 240-year-old treaty that simply weren't there -- as the now chief justice pointedly noted by in her dissent, observing that the majority decision created "an unintended right of broad and undefined scope."

Even the writer for the Marshall majority, Justice Ian Binnie, conceded in his ruling that: "The right to fish is not mentioned in the March 10, 1760, document nor is it expressly noted elsewhere in the records of negotiations put in evidence."

The court subsequently backed away from some of the ruling's more egregiously extravagant provisions in a hasty "clarification."

Another Supreme Court justice, Michel Bastarache, who did not sit on the Marshall panel, has publicly criticized the Marshall decision and raised hackles among some native politicians by suggesting that historical aboriginal rights are "ill-defined." Justice Bastarache observed that many Atlantic Canadians think that the high court invented rights that are not in the ancient treaties and that the public may see the court as unfairly favouring natives.

You might think that the high court's backtracking and self-criticism on Marshall, not to mention the hornet's nest of conflict it stirred up in the East Coast lobster fishery, would have made lower court justices cautious about writing creatively generous interpretations into their rulings on aboriginal rights cases, but evidently not.

On Feb. 5, Nova Scotia Associate Chief Justice Michael MacDonald ** overturned the conviction of a Mi'kmaq who had been found guilty of deer-jacking -- hunting at night using a light -- on the basis of supposed treaty rights.

You have to wonder what Justice MacDonald and the majority in Marshall were thinking. Do they imagine that they can create a race-based distinctions and two-tier laws in areas of common stakeholding without all hell breaking loose, especially on the specious basis of alleged "treaty rights" that were never mentioned in the original treaties?

I have news for them, and for the gutless politicians who have chosen to lead by following this judicial activism: it isn't going to fly. They should review the outrage being expressed in letters to the Editor columns of Nova Scotia newspapers over Justice MacDonald's deer-jacking ruling.

Ordinary Canadians have had just about a bellyfull of this tomfoolery. Nova Scotia MLA Brooke Taylor, who is currently co- ordinating a petition demanding that Justice MacDonald's ruling be appealed, says that in nine years of public life he has never seen his constituents more upset and outraged than they are over this matter.

The central problem here, besides the ideology of liberal guilt, is the notion of special status for a certain category of Canadians based on race.

This writer, along with I'm confident a substantial majority of the Canadian public, believes that there should be only one class of citizen and the same laws and privileges should apply to all citizens equally.

Special status based on race is unacceptable. What is it that made Apartheid repugnant and evil in South Africa, but a principle championed and advocated by the courts and the government here in Canada?

There are many problems with the notion that treaties European colonizers negotiated with (or imposed on) aboriginals hundreds of years ago should be considered the equivalent to agreements between sovereign nation states, even in the context of what's actually articulated in them. University of Calgary political scientist Tom Flanagan has observed that this "doctrine of equivalence" is a theory originated by anthropologists and advanced by political activists.

The fact is, North American aboriginals were outgunned and eventually outnumbered by the European invaders. They did not win the Indian wars.

This sort of defeat has happened to many peoples over the centuries and their sovereignty, such as it was, ceased to exist.

In short, the old treaties should be declared null and void, and torn up, to be replaced by whatever transition process will be necessary to integrate aboriginals into mainstream society as full equals. Yes, that's assimilation. It's not a dirty word. It is a very un-racist concept. It is also, ultimately, the only politically viable solution if there is to be social peace.

Are aboriginals Canadians or not? That is the operative question here. If they are, then this treaty rights fiasco must stop. And if aboriginals don't want to be Canadians on an equal footing with their fellow citizens, the only viable alternative to assimilation is real independence, which would involve decades of negotiation over territorial partition and jurisdiction, and in the end, a shutoff of the transfer of funds from non-aboriginal Canadian taxpayers.

Those are the options. What is it going to be?

(Charles Moore writes from Nova Scotia.)