The Mi’kmaq community says the provincial government is setting back its relationship with First Nations by decades.
“The Nova Scotia government refuses to recognize what has been recognized by the Supreme Court of Canada, the highest law of the land,” said Cheryl Maloney, a member and former councillor of the Sipekne’katik band.
Maloney was responding to a legal brief written by Justice Department lawyer Alex Cameron that maintains the Crown’s obligation to consult extends only to “unconquered people.” Cameron will argue before the Supreme Court of Nova Scotia that the Sipekne’katik band’s submission to the Crown in 1760 negated its claim of sovereignty and negated government’s constitutional duty to consult.
An associate political science professor for Cape Breton University who has been teaching students about aboriginal treaty agreements, Maloney said Cameron’s argument pulls the relationship between the Mi’kmaq people and the government back to an era when aboriginal rights were “ignored and trampled on.”
“The Supreme Court of Canada in the Simon decision said that language is no longer acceptable,” Maloney said. “In 1985, Nova Scotia got a slap on the hands for promoting and putting forth these positions based not in law but in bias and prejudice.”
Mike Sack, the newly elected Sipekne’katik chief, said he would not comment while the band’s appeal of the province’s decision to issue permits for the Alton natural gas storage project is before the Supreme Court of Nova Scotia. The case is being heard on Monday and Tuesday. The band has appealed Environment Minister Margaret Miller’s decision to permit Alton Gas, a subsidiary of AltaGas, to run a brining operation at the Shubenacadie River estuary in Colchester County as part of its underground gas storage project.
Millbrook Chief Bob Gloade said the government's surprise position would be prime fodder for discussion at the chiefs meeting Thursday at Wagmatcook First Nation, near the Bras d’Or Lake in Cape Breton.
“It contradicts their commitments and their obligations to the duty to consult and to engage the Mi’kmaq of Nova Scotia and to provide adequate consultation that everybody understands,” Gloade said. “It just contradicts what the province is committed to doing. What position are they taking is the question that I am wondering.”
The Justice Department said in a statement that it would be "inappropriate to speak on the specifics" of a matter that is before the court. "Government is committed to a positive relationship with the Mi'kmaw," the statement said.
Naiomi Metallic, a lawyer, law professor and chair of aboriginal law and policy at Dalhousie University in Halifax, said the government's position is disturbing.
“I find it deeply disconcerting that the government of Nova Scotia formally accepts and adopts these positions, especially when it talks about reconciling and it’s been in negotiations with Mi’kmaq for over a decade,” Metallic said. “The government comes to Treaty Day and they say really beautiful, nice things about relationships and working together and that we’re all here to stay, and then you get this crap in court.”
Gloade said the about-face is upsetting.
“The province is sitting down at the table talking to us about engagement, consultation, the duty to consult and that they are committed to do that and then they turn around in a legal brief in their submissions and they are contradicting their commitments.”
Maloney thinks it’s time for the Mi’kmaq communities across the province to take a look at their negotiation processes with government.
“The reason those negotiation rights are in place is because the Mi’kmaq have been to the Supreme Court of Canada twice, the Simon 1752 treaty of the Shubenacadie River and the Marshall decision,” Maloney said. “So they (government) are not there negotiating because they want to be, they are there because they have already lost twice. The language that this government is using in 2016 is the same language from 1982 that the Supreme Court of Canada rejected.”
Maloney said government always has to pass the justification test.
“We take our cases to the courts and the province and the governments have to justify that these infringements are warranted. This position of the Nova Scotia government is a very dangerous position. The Mi’kmaq of Nova Scotia in the Shubenacadie District have a very strong case for aboriginal title.”
Metallic said the government is taking a “scorched-earth” approach.
“They could say that based on the test to consult, we feel we’ve met it. That would be perfectly reasonable. I am saying that in general, not weighing in on the facts of Alton, but instead they say there is no title, there is no treaty, that we're conquered. What? Why don’t you say that at the negotiation table if you feel that strongly about it? Why are you investing so much in working on this relationship, the hours, money, staff, an office called Aboriginal Affairs, if you feel that these things are worthless?”
Shelly Martin, lawyer for the Millbrook band that will be observing the court proceedings next week, said the government argument puts things into play that really aren’t at issue in the Alton Gas case.
“Questions of sovereignty and questions about the validity of our treaties, that’s not really what is being argued here at all,” Martin said. “But, it’s like he’s (Cameron) gunning for a fight on that. Really, what’s being argued is that there wasn’t sufficient consultation and that they (government) has a duty to make sure it was done properly.”
The NDP caucus, too, weighed in on Cameron’s argument.
“Taking aim at the sovereignty of aboriginal communities is not a path towards reconciliation,” said party leader Gary Burrill. “The shameful history of the treatment of aboriginal peoples in Nova Scotia and across the country calls on us to take our commitment to reconciliation very seriously and avoid actions that will further harm aboriginal communities.”
It is not the first time that Cameron has taken aim at the laws of the land that deal with aboriginal sovereignty.
In his 2009 book Power without Law, Cameron argues that there are serious defects in the Supreme Court of Canada’s 1999 Marshall decision confirming the treaty rights of Mi'kmaq and Maliseet people on the East Coast to hunt, fish and gather to earn a moderate livelihood, rights that flowed from a then nearly 250-year-old treaty.
“He wrote a book on how he feels that the Marshall decision was wrongly decided,” Metallic said. “That may well be his position but this is the law of Canada and it is to be followed. There is this thing called the rule of law and if there is a decision of the Supreme Court, you follow it. The Nova Scotia government is bound by it.”
Metallic said presenting that argument as a Nova Scotia position is problematic.
“They take the 1752 treaty, for which we've marched down Barrington Street for the last 30 years, and say that treaty is invalid, terminated.”