October 15, 1999 Halifax Herald

Recognition of aboriginal rights poetic justice

If Nova Scotia's natural resources had been shared with the Mi'kmaq on an equitable basis by governments, and if our people had been permitted to earn a living comparable to that enjoyed by white Nova Scotians, there would not have been any aboriginal and treaty rights litigations and consequent favourable Supreme Court decisions for this country to struggle with. The two and a half centuries of exclusion is what pushed our people to opt for legal action to obtain justice. Racism begets acrimony.

However, a valuable benefit can be derived by society from its immoral behaviour: It teaches that mindless hate is expensive. Because of it, First Nations Peoples were made dependent on government assistance for the necessities of life, costing taxpayers billions. To reduce the cost, end racism!

The denial of equity has caused a growing sense of rage, discontent and frustration, especially among the young, within Mi'kmaq communities. Federal and provincial governments must accept most of the responsibility for it. Their stubborn refusal to negotiate an equitable settlement of aboriginal entitlement is among the worst irritants and is indefensible. Not once since the British sit up shop here has a colonial, federal or provincial government voluntarily come forward to negotiate.

Now, for an interpretation, based on facts, of who is entitled to enjoy treaty rights:

Treaties were entered into by the British and Mi'kmaq Nations for the purpose of ending war between them. The provisions of these pacts were worked out and ratified on behalf of the British Crown by its delegated authorities, and on behalf of the Mi'kmaq Nation by its chiefs and councillors. The signatures of chiefs and councillors on treaties stand as proof of the authority held by them to act on behalf of their constituency. The fact that the Supreme Court of Canada has declared that treaties are valid agreements makes such a declaration incontestable.

Thus, in the face of the incontestable fact that band councils are the bonafide governing authority of the Mi'kmaq Nation, one has to wonder what was going on when the Crown's representatives refused to deal with them as such. Based on the British acceptance of the authority of chiefs and councillors, and the modern confirmation of such by the highest court in the land, the government never had any choice in the matter.

The federal government seems to be finally accepting this fact. It has stated publicly that it views aboriginal and treaty rights as communal rights to be negotiated with band councils. Consequently, on October 2, 1999, it ordered non-status Indians to stop fishing because they were not affiliated with Bands. This position should begin to clear up the muddy waters that the feds created in the first place by pretending it was unclear who was entitled to enjoy aboriginal and treaty rights.

For those who think the Feds had cause to waver, this should settle their misgivings: All aboriginal and treaty rights court cases won to date have been won by First Nations' Band Councils on behalf of Registered Indians. No such cases have ever been won by the federal government's new tribal creation - "those who perceive themselves to be Aboriginal." The fact that the Justices of the Supreme Court, when formulating their decisions, used the litigant's registered band membership as proof of Indian entitlement settled the matter long ago.

As for those non-status who deride the authority of the "Indian Act Band Councils," here is a fact to chew on. Many of the Bands across Canada have traditional-custom forms of government. Section 2 (1) of the Indian Act, "council of the band," para. (b) recognizes that such forms of government predate the Act itself. The reason why many bands elect their Chiefs and Councillors under the Act's Band Council Election provisions is that they have voluntarily opted to switch from custom elections to Indian Act.

These Councils, whether custom or Indian Act, are the legal representatives of the people whose ancestors signed treaties and first populated this land. This truth is cemented by the fact that under Canadian law, Bands are the only Indian political units recognized as governing bodies.

Thus, the Nova Scotia Native Council's claim that it universally represents off-reserve Indians has no basis in law. The Council, as constituted under the Nova Scotia Societies Act, represents the 200 or 300 people (an estimate, as it refuses to provide a membership list) who have applied for and have been accepted as members. The reason such organizations came into existence was to help people who had lost status to regain it, not to undermine the authority of the traditional government structures of First Nations!

As for the Council's contention that off-reserve Registered Indians cannot enjoy aboriginal and treaty rights, it's baseless: A band member living off-reserve is entitled to access any benefits of general application that on-reserve band members have. Thus, Status Mi'kmaqs residing in any part of Nova Scotia can exercise their band council-regulated aboriginal and treaty rights.

The unwarranted aura of confusion that federal and provincial governments promoted about aboriginal and treaty rights entitlement makes one suspect that it was done deliberately to try to dilute such rights, and to set the stage to someday make a legal claim that the Mi'kmaq are assimilated!

Daniel N. Paul


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