Nova Scotia court certifies class action against province over hunting rights

The Supreme Court of Nova Scotia has certified a class-action lawsuit filed by status and non-status Mi’kmaw living off-reserve against the province over hunting rights.

For decades members of the Native Council of Nova Scotia (NCNS) have harvested moose in Cape Breton under what is called an Aboriginal Rights Treaty Access (ARTA) passport.

“After 30 years how can you just stop something without at least negotiating, or at least talking to the harvesters or talking to the council itself because we issued them,” says Lorraine Augustine, chief of the NCNS.

“It’s just mind-boggling how they would just stop.”

ARTA passport holders who lost access to hunting filed a class-action lawsuit in 2019. The suit is also asking for $40 million in damages for “breach of constitutional rights” and to have their right to hunt reinstated.

“The ARTA passports were only issued to those who went through a process to demonstrate that they were Mi’kmaq and that they were the beneficiaries of section 35 rights,” says Andrew Lokan, legal counsel for the plaintiffs.

Hunting rights
‘If you go back and read the 1752 treaty… there was no bands, there was no reserves, there was no status, there was no non-status, it was signed with the Mi’kmaw Nation,’ says Lorraine Augustine, chief of the NCNS.

The NCNS was formed in 1974 and represents 3,500 Mi’kmaw people living off-reserve – with or without status according to its website.

They say members self-identify as Mi’kmaw and claim ancestry and connection to a community.

The council developed the ARTA passports in the 1980s as part of its harvesting management plan which the province had commended in past correspondence.

The print on the card states: “The bearer of this passport is a person of Mi’kmaq ancestry, deemed an Aboriginal person and is a beneficiary of Aboriginal, treaty and other rights guaranteed by Section 25 of the Canadian Constitution and part two of Section 35.”

Augustine says that passport holders are Mi’kmaw.

“Our ARTA passport holders have the direct descendent, they have the connection to their Aboriginality,” she says.

It’s not clear why the province allowed people to hunt under the ARTA passport for so long but then revoked the right.

On Aug. 15, 2017, it posted notice on its website.

“To be accepted as a Mi’kmaq of Nova Scotia harvester, individuals must have a federal Indian status card associated with a Mi’kmaq of Nova Scotia First Nation or a Nova Scotia Mi’kmaq Harvester Identification Card issued by the Assembly of Nova Scotia Mi’kmaw Chiefs,” the notice says.

“Cards or identification issued by other organizations will not be accepted.”

The Nova Scotia Attorney General’s office declined an interview request with APTN News saying the matter is before the courts and it can’t comment.

Augustine suspects the Assembly of Nova Scotia Chiefs (ANSC), which represents 11 Mi’kmaw bands in Mi’kma’ki, complained.

“The only thing that we can think of from the native council’s perspective is that the Assembly of Mi’kmaw Chiefs spoke with the province and said not to accept them anymore,” says Augustine.

APTN News contacted the ANSC for comment but was told no because the matter is before the courts.

According to the statement of claim, the assembly believes that “only the 13 Nova Scotia Indian Act bands could decide who had an Aboriginal or treaty right to hunt in Nova Scotia.”

Lokan says the province made the final decision.

“The assembly of chiefs didn’t have a role in accepting or declining the passport, it was the province that had previously accepted that passport and then decided it would no longer accept that passport,” he says.

According to the statement of claim, the province said in 2016 that treaty rights belonged to the Mi’kmaw and that Aboriginal and treaty rights in Nova Scotia “are collective rights held by the appropriate rights-bearing community.”

Augustine disagrees.

“If you go back and read the 1752 treaty, it says that treaty was signed with the Mi’kmaw Nation, there was no bands, there was no reserves, there was no status, there was no non-status, it was signed with the Mi’kmaw Nation,” she says.

It seems the federal government doesn’t agree either.

Passport holders harvest lobster, under the Native Council of Nova Scotia’s food, social, and ceremony fishery.

According to the Department of Fisheries and Oceans (DFO), “fisheries officers may request to see a harvester’s identification and/or proof of designation. In the case of a member of the Native Council of Nova Scotia, the required proof of designation would be the Aboriginal and treaty access passport.”

Lokan says the federal acceptance of the passport to harvest lobster – and the provincial rejection of it to hunt moose doesn’t make sense.

“You know how complicated and irrational the world of  regulation of Indigenous rights is, this is just a very striking case of how screwed up it can get,” he says.

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