Wabanaki Treaties in Canadian Courts
Both politically and legally, in Canada, for decades, a “treaty” was considered to be an agreement in which an Indigenous people gave up its land rights to the Crown. The official collection of Indian Treaties and Surrenders1 contained only land transactions. As for the political agreements of the 17th and 18th centuries, especially those in what is now the Maritime Provinces, southern Quebec and southern Ontario, both the federal government and the courts ignored or rejected them. In the Maritimes, Canadian courts took their time to recognize treaties. In 1929, an acting County Court judge decided that the Mi’kmaq had no treaty rights at all, convicting Grand Chief Ben Syliboy of trapping muskrats without a license. In his decision, which stood for nearly fifty years, he confirmed the Doctrine of Discovery, as well as the idea that Indians were essentially part of the furniture of the land.
“Treaties are unconstrained acts of independent powers.” But the Indians were never regarded as an independent power. A civilized nation first discovering a country of uncivilized people or savages held such country as its own until such time as by treaty it was transferred to some other civilized nation. The savages’ rights of sovereignty even of ownership were never recognized. Nova Scotia had passed to Britain not by gift or purchase from or even by conquest of the Indians but by treaty with France, which had acquired it by priority of discovery and ancient possession, and the Indians passed with it. 2
It took until 1985 for the Supreme Court of Canada to finally distance Canadian law from the racism of the Syliboy decision. In the Simon decision in 1985, the Court said:
It should be noted that the language used by Patterson J. illustrated in this passage reflects the biases and prejudices of another era in our history. Such language is no longer acceptable in Canadian law and indeed is inconsistent with a growing sensitivity to native rights in Canada. With regard to the substance of Patterson J.’s words…his conclusions on capacity are not convincing. 3
The Treaty [of 1752] is of as much force and effect today as it was at the time it was concluded… It is an enforceable obligation between the Indians and the white man … 4
The Supreme Court of Canada in 1985 rejected Judge Patterson’s language strongly, his legal conclusions more gently.
In the 1970s and 1980s, the Government of Canada refused to negotiate with Indigenous nations in the Maritime Provinces, even as it accepted “comprehensive” claims in the north and British Columbia. It held firmly to the position that Aboriginal title and rights had been “superseded by law,” displaced and replaced by de facto settlement of the area by Europeans. 5
In 1999, the Supreme Court of Canada gave more positive meaning to the Maritime treaties in the Donald Marshall Jr. decisions, confirming Treaty fishing rights that would support a “modest livelihood.” The court supported the conclusions of a trial judge who considered that “the key negotiations took place not with the Mi’kmaq people directly, but with the St. John River Indians, part of the Maliseet First Nation, and the Peskotomuhkati First Nation, who lived in present-day New Brunswick.” 6 The treaties were negotiated by Peskotomuhkati representatives first. The Supreme Court of Canada said:
The treaties were entered into in a period where the British were attempting to expand and secure their control over their northern possessions. The subtext of the Mi’kmaq treaties was reconciliation and mutual advantage. I would allow this appeal because nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi’kmaq people to secure their peace and friendship, as best the content of those treaty promises can now be ascertained. 7
If the law is prepared to supply the deficiencies of written contracts prepared by sophisticated parties and their legal advisors in order to produce a sensible result that accords with the intent of both parties, though unexpressed, the law cannot express the honour and dignity of the Crown in its dealings with First Nations.8
The Marshall decision led to comprehensive negotiations with Mi’kmaq and Maliseet nations as well as the implementation of their treaty commercial fishing rights. The federal government allocated Peskotomuhkati traditional waters as commercial fishing grounds to Maliseet communities. In doing so, it did not consult at all with the Peskotomuhkati Nation.
- Indian Treaties and Surrenders, from 1680 to 1890, Ottawa: B. Chamberlin, 1891. The Maritime treaties are not included in the volume, and the 1680 transaction is an isolate: the book really begins with the post- 1783 land transactions in southern Ontario.
- R. v. Syliboy,  1 DLR 307 (County Court). In 2016, the Canadian Conference of Catholic Bishops repudiated the Doctrine of Discovery, stating: “We firmly assert that there is no basis in the Church’s Scriptures, tradition or theology, for the European seizure of land already inhabited by Indigenous Peoples; we reject the assertion that the principle of the first taker or discoverer, often described today by the terms Doctrine of Discovery and terra nullius, could be applied to lands already inhabited by Indigenous Peoples.” March 19, 2016** R. v. Simon,  2 SCR 387 at 399-400 (Paragraph 21).
- R. v. Simon,  2 SCR 387 at 400.
- The “superseded by law” position was never made fully public. In the historic 1973 speech in which he announced future land rights negotiations, Minister of Indian Affairs Jean Chrétien would say only that in Southern Quebec and the Maritime provinces, there were “of a different nature.”
- R. v. Marshall,  3 SCR 456 at Paragraph 26.
- Marshall, Paragraphs 3 and 4
- Marshall, Paragraph 44. The statement implies that the Wabanaki were neither sophisticated nor acting according to law. It took another seven years, and the Delgamuukw decision, for the Supreme Court to recognize that Canadian courts, in dealing with Aboriginal land issues, must pay equal respect to the legal systems of Indigenous nations. The Truth and Reconciliation Commission distinguishes between “Indigenous Law,” the law of the nations, and “Aboriginal Law,” the laws of Canada about those nations and their rights.
- R. v. Syliboy,  1 DLR 307 (County Court). In 2016, the Canadian Conference of Catholic Bishops repudiated the Doctrine of Discovery, stating: “We firmly assert that there is no basis in the Church’s Scriptures, tradition or theology, for the European seizure of land already inhabited by Indigenous Peoples; we reject the assertion that the principle of the first taker or discoverer, often described today by the terms Doctrine of Discovery and terra nullius, could be applied to lands already inhabited by Indigenous Peoples.” March 19, 2016.