I'm really hoping they rule in favour - it will also stand to reason that it will reach outside the maritimes

I recall taking First Nations Law in 2nd Year law school and writing a paper arguing that the Royal Proclamation should actually be viewed as an international treaty between nations. The professor basically poo-pooed the argument on the basis that the Canadian Courts have ruled otherwise. I still think there is something wrong with his argument: Canadian Courts using Canadian law to make a ruling on international law that is favourable to their own country kind of seems like the Chinese government passing laws making Tibet legally part of China. But I digress. As you point out, the Royal Proclamation has been referenced in the Canadian Constitution and there have been a number of rulings by Canadian courts on the matter that the Mikmaq Nation has gone along with. What is sad is when provincial and federal governments ignore the constitution, ignore the treaties and ignore court rulings facilitating the perpetuation of the common perception that it was okay for our government and its predecessors to take Indian land. I can't think of an instance where a court has ruled against the Mikmaq in relation to the Royal Proclamation but not before years of acrimony, protacted appeals, administrative obstruction and racial tension.

But the Proclamation was a one-way executuve decree. The treaties are the negotiated thing that stands in that place beyond the sole discretion of the state. I had a rather nice "ah-ha" in my legal career a few years ago at a conference of aboriginal law lawyers when I pointed out this idea that the treaties are like the colonial constitutions which still exist and support the nature of the provinces: there is an excellent late 30s or early 40s Canadian Bar Reports article on the provincial constitutions. When I raised it, all these other lawyers started saying "sure...why not? Hey, that might actually work!" <p>As far as I can tell there are now four constitutional soveriegns of one degree or another: fed, prov, aboriginal and autonomous individual. Good and complex - like society.

Re: the negotiated treaties being like the colonial constitutions.

I like that idea.

Re: the Proclamation being a one way executive decree, there is at least on argument opposing this position.

Borrows, John. ‘Wampum at Niagara: The Royal Proclamation, Canadian Legal History,and Self-Government,’ in Michael Asch ed. "Aboriginal and Treaty Rights in Canada: Essays on Law Equality and Respect for Difference". Vancouver, UBCP,1997.

Borrows argues that the Proclamation needs to be considered in conjunction with the Treaty of Niagara of 1764 along with the Aboriginal oral history related to the two documents. He argues that the Proclamation and Niagara Treaty were originally considered two parts of a fairly comprehensive charter between the First Nations of eastern North America and the English ensuring Aboriginal protection and land use right.

I can't recal the article well enough to remember the specifics, but that's the general argument.

I would have to be coaxed off my perch on the issue of the structural meaning of the tool of any Royal Proclamation circa 1760 before I'd buy that argument.

It is interesting to see my prof, Bruce Wildsmith; the leader of the conference I refer to above, Joe Magnet; and an former idea bouncer, Bruce Clarke, were all on the case for various parties as well as Keptin John Joe Sark Keptin Frank Nevin, intervenors and leaders of the Mi'kmaq people, two of the nicest and most interesting guys to have ever greased me out for my own good as a lawyer.

Looks very very good; there'll hopefully be a lot less guesswork figuring out which way the courts are going to jump in the future, which is good for everyone. The Micmac spokesman on CBC didn't seem too put out -- I suspect they thought this one was a flyer also.

Section 87 has a wee kick in the arse to the present government of PEI (which chose not to be represented) and their wacky official unhistory:<blockquote class="smalltext">87. The first issue is whether the Royal Proclamation applies to the former colony of Nova Scotia. The Royal Proclamation states that it applies to “our other Colonies or Plantations in America” and at the beginning annexes Cape Breton and Prince Edward Island to Nova Scotia. Other evidence, including correspondence between London and Nova Scotia, suggests that contemporaries viewed the Royal Proclamation as applying to Nova Scotia (Marshall Trial decision, at para. 112). Interpreting the Royal Proclamation liberally and resolving doubts in favour of the aboriginals, I proceed on the basis that it applied to the former colony of Nova Scotia.</blockquote>

Hi Alan,

Could you point me in the direction of the PEI Government's "policy pieces" that claim the Mi'kmaq never lived on the Island; I'd be curious to read them.

Cheers,

John Boylan

I have had no luck hunting for it on the web - there was a generic economic policy glossy book that came out with a great flourish and a presentation at UPEI that said, in passing, that the Mi'kmaq only "visited" PEI and when I asked an official I was told that, yes, it was the position of the government that the Mi'kmaq never actually lived on PEI. I think it was maybe 1999 or 2000.<p>I'd love to be corrected so if you can find otherwise send an update. It would be a relief as unhistory is not good.

to paraphrase Bill Clinton: It all depends on what the word "lived" means...

Well, no... PEI was Abeqweit and one of the seven "provinces" of the Mi'kmaq with assigned Keptin, etc. As they were nomadic in the sense they followed all the bounty, there were no locations but the idea that they just "visited" is farcical as it was heartland territory where they have been for thousands of years.

Conversely, consider the treatment by another jurisdiction. Maine has a specials seat in its House of Representatives for the Passamaquoddy and Penobscot nations at least one of which signed the Treaty of 1725 as well as the Treaties of 1760/61, the latter being the one the SCC ruled on today. Interesting, too, to note the 1725 one was signed at Falmouth, now Portland, Maine, though it is about the governorship of Nova Scotia which then included PEI and New Brunswick.

Thanks Alan,

Wasn't trying to catch you out, just genuinely curious.

As much as anything, I'm amazed (while not doubting it)to hear of someone from the Province claiming there was an official government position on the matter. I worked for the Heritage Section of Community and Cultural Affairs from 1998 to 2002 and it wasn't something I came across.

I suppose the Province's legal position on the matter will be clarified if the issue of land claims ever comes to a head on the Island. Based on the experience of a number of historians and archaeologists I know, that's when the unhistory really gets interesting.

This Government of PEI page indicates a different understanding though the last sentence is fairly bizarre:<blockquote class="smalltext">since Easter and Christmas were good times of the year to sell baskets, it also fit the non-native traditions, marking the seasons of the Christian calendar, and it showed another way the Mi'kmaq people adapted to the economy and the world-view of the non-native community.</blockquote>Seeing as the Mi'kmaq accepted the Christian faith around 400 years ago (at a time when my forefathers worshipped Odin and rolled burning wheels into the sea) the idea that Easter and Christmas were just good marketing time is fairly dense. The Mi'kmaq signed a treaty with the Vatican, as best as I can tell, before 1700.

Thanks for the background, John. I am sure it was not well-fleshed out policy so much as a theme that kept popping up in the choice of words, attitudes at meetings <i>but</i> you have got me hunting around and all interested. <p>I would be interested in the archeologists reports as I thought the brakes were put on that, too. I saw some once from before that but recall no specifics.

I think it's generally accepted amongst archaeologists that the oldest known site on the Island (the Jones Site at Greenwich)dates to around 8,000 to 10,000 years.

As you'd expect, there are any number of questions about what resources were being exploited, what the settlement patterns were and what the cultural affiliation of the inhabitants was at any given point. I don't know who came up with the notion that the natives summered on PEI and wintered on the mainland, but it's certainly an oft repeated one. And a moot point for the inhabitants of 8,000 years ago given that the Island was joined to the mainland at that time.

Whether the Mi'kmaq were here from day one on a permanent basis or not, there doesn't seem to be much doubt that they were comfortably in residence when the first Europeans arrived, and had been for a hell of a long time.

On a side note, rolling burning wheels into the ocean sounds like a lot more fun than my experience of Christianity; sign me up!

I am now concerned about how the Court has characterized the test for aboriginal title. At section 55 it states:<blockquote class="smalltext">55. This review of the general principles underlying the issue of aboriginal title to land brings us to the specific requirements for title set out in <i>Delgamuukw</i>. To establish title, documents must prove "exclusive" pre-sovereignty "occupation" of the land by their forebears: per Lamer C.J., at para. 143.</blockquote>In the cited <i>Delgamuukw</i> v. <i>British Columbia</i>, [1997] 3 S.C.R. 1010 it states at section 21 and 22:<blockquote class="smalltext">21 After rejecting the appellants' claim for ownership of and jurisdiction over the disputed territories, McEachern C.J. turned to the possibility that the appellants nevertheless have aboriginal rights exercisable therein. He set out, at p. 388, the four part test from Baker Lake for an aboriginal right:<blockquote>1. That they (the plaintiffs) and their ancestors were members of an organized society.<br>2. That the organized society occupied the specific territory over which they assert the aboriginal title.<br>3. That the occupation was to the exclusion of other organized societies.<br>4. That the occupation was an established fact at the time sovereignty was asserted by England.</blockquote>McEachern C.J. noted that the requirement for an organized society had been satisfied, even though he did not believe the appellants' ancestors had institutions and governed themselves. However, he held that no specific level of sophistication ought to be required in satisfying this requirement. He then stated that there was evidence that the ancestors of the plaintiffs occupied specific locations in the territory (the villages) and they used surrounding lands. Although there was evidence that the Gitksan and Wet'suwet'en would not have been able to keep invaders or traders out of their territory, no other organized societies had established themselves in the core areas on any permanent basis. Moreover, he noted at the outset of his reasons on this point that he was uncertain about the requirement for exclusivity.</blockquote>So in <i>Delgamuukw</i> you have ideas about defeating invasion as the standard of when there is exclusion. In around section 80 of today's ruling it is accepted that the Mi'kmaq "welcoming" Europeans was indicia of non-exclusivity. If I welcome you to my house, is it somehow less my house?

Also, the welcoming (as well as the lack of intent to exclude) were trial findings discounted at appeal. As I understand, no one tried to oust the Mi'mkmaq from their territories, that access was based on agreements required by European nations because of the might of the Mi'kmaq. If they did not have exclusivity, why all the treaty writing?

BTW: I'll be in your neck of the woods on the weekend. My cell is 416.569.5994 (and hopefully I'll remember to bring it!).

Sadness reigns. As of 4:31 pm I am gone for two weeks and two days. NE US seafood is quivering in its shells.

Ah, so it goes. Good luck. Road trip I assume!

I am still afraid to read the latest logging decision. I am not an academic but still find it difficult to understand why it would be the aboriginal people that need to prove title. Why would the colonizers be able to log without proving title? When does a nation stop being a nation without the consent of its people?

Eyes rolling. The downside of RSS feeds showing discussions past their due date.

Please, David. Given the vagueries of the Royal Proclaimation of 1760/61, in terms of Atlantic Canada, not out of the ballpark.

"Constant"'s little piece is steeped in the language (in both conotation and denotation) of trendy modern victomology and is about as useful for a working understanding of aboriginal relations as is, say, the _Lone Ranger_.

In my head, I always translate "nation" into "band", as the notational swap was mainly done to imply a set of rights and privledges ... that the Micmac, for example ... were and are equivalent to countries peer to the Crown.

The Mi'kmaq were and are different in that respect as the British circa 1720 to 1760 treated them and had to treat them as equivalents due to British weakness in the area and Mi'kmaq strength. Not to be confused with the experience in the 1800s further west. Not victimology at all - holding the government to a promise framed in law.

Think Ghurkas without being asked.