(Mi’kmaq chiefs gather for Nova Scotia Treaty Day. Photo: Trina Roache/APTN)
APTN National News
A legal brief submitted on behalf of the province of Nova Scotia denies treaty rights and labels the Mi’kmaq as conquered peoples.
“To suggest that we are ‘conquered’ is a racist taunt,” wrote Millbrook Chief Bob Gloade in a media release. “At its worst, it has been used against Indigenous Canadians to perpetuate or justify a state of inferior legal, social or socio-economic conditions.”
The brief is part of a court case centred on consultation with the Sipekne’Katik Band over a natural gas storage project. The band asked for a judicial review of the provincial permits that approved the Alton Gas project.
But a court case about whether the Crown meaningfully consulted with one band over a particular project, has brought up what many are calling offensive arguments about treaty rights that extend to all Mi’kmaq in Nova Scotia.
Alex Cameron, legal counsel for the province’s Department of Justice spent several pages of the submission arguing that the Treaty of 1752 is void, as it was “terminated by subsequent hostilities.” Cameron goes on to point out that the Supreme Court of Canada “wrongly decided” the Marshall Decision, which upheld the Mi’kmaq Treaty right to hunt, fish and gather.
“Is this the best the Crown can offer? His position is a betrayal of the province’s commitment to reconciliation,” said Gloade.
Cheryl Maloney, a former band councillor for Sipekne’Katik, led the fight against Alton Gas and sat in court, listening to Cameron’s arguments.
“I think it’s dishonourable not only to Aboriginal people,” said Maloney, “but it’s a real dishonour to Nova Scotians when we’re in an era of trying to reconcile our past.”
Every October 1, for 30 years, the Mi’kmaq have gathered with provincial leaders in Halifax to celebrate and honour the Treaty of 1752.
Walking out of the courtroom on the Alton Gas case, however, Maloney was left wondering if the province even thinks the treaty exists.
“We now know what kind of province, what kind of government we’re dealing with,” she said. “They showed their true colours.”
In 2009 Cameron wrote a book, Power without Law, which was highly critical of the Marshall decision. At the time, the Nova Scotia chiefs asked the province to prohibit Cameron from working on cases tied to Mi’kmaq issues. That didn’t happen.
Mi’kmaq lawyer Naiomi Metallic said Cameron is “clearly biased. He has a very particular agenda and this is the question I wonder; is it more him that’s driving this bus?”
She pointed out that there had to be oversight on a document filed in a court of law on behalf of the attorney general of Nova Scotia. And that has her asking what it says about the province and what that might mean for relations with the Mi’kmaq.
“Why is he making an argument about Mi’kmaq being conquered?” she asks. “No one is going to accept that and it just really shatters the relationship or has the potential to.”
The Nova Scotia Chiefs have been at the negotiating table since 2002, working out how to implement the treaties in a modern context.
Eric Zscheile is a lawyer for the Assembly of Nova Scotia Chief’s negotiating body, Mi’kmaq Rights Initiative, or as it’s called in Mi’kmaq, Kwilmu’kw Maw-klusuaqn. He was also the legal counsel for the Mi’kmaq when Donald Marshall was charged with catching and selling eels; the case that was victorious at the Supreme Court in 1999.
Hearing Cameron’s arguments around treaty rights in 2016, Zscheile shakes his head.
“How do you react to that? And do you get pulled down the rabbit hole of getting involved in that dynamic again? I argued with all of those things decades ago,” said Zscheile. “As far I’m concerned the Supreme Court has already answered it.”
He said the legal argument seems at odds with the political point of view he sees at the negotiation and tripartite tables.
“Unlike what Alex Cameron says, we have two governments that are willing to sit down and say yes, we need to recognize those treaties, we need to recognize them as valid. We need to recognize them as legal and constitutional,” said Zscheile.
And the premier of Nova Scotia agrees.
On Thursday, Stephen McNeil sat down for an interview with APTN wanting to clarify the government position.
“Mi’kmaq have traditional rights in this province, determined by treaties and we have an obligation and a duty to consult,” said McNeil.
The premier, who is also minister for Aboriginal Affairs, said he had not read the brief before it was presented in court, and then it was too late to take it back.
McNeil called the arguments questioning the validity of treaty rights “unacceptable” and said he understands the angry reaction from Mi’kmaq.
“I’m not happy, not just as the minister, but as the premier that that position was put forward in the court,” said McNeil.
“Disappointed would be a huge understatement. To say that I was furious would probably be more accurate.”
The premier is putting distance between Cameron’s take on the treaties and his own.
But he acknowledges, “I’m going to wear this. We as a government are wearing this. No matter who put it forward, somebody in government should’ve been signing off on this.”
McNeil is already looking into how that happened. In the meantime, he’s doing damage control.
“My hope is that the chiefs and the Mi’kmaq community will understand it is not a reflection of who I am, and who our government is,” said McNeil.
The premier said he has not read Cameron’s book. He can’t say whether Alex Cameron will be removed from cases involving the Mi’kmaq.
“I take this issue very seriously and we will be looking into it to see what is the proper course of correction,” he said.