Elsipogtog-The Elsipogtog Band is about to launch court action asserting the reality of its legal title to its ancestral lands.
Band lawyer Bruce McIvor, who was in Elsipogtog on April 21 to complete preparations for an Aboriginal title claim, won’t say precisely when the claim will be made, but does promise that it will be soon.
McIvor told an evening meeting in Elsipogtog, that ultimately the claim is about making it possible for the Mi’kmaq to survive as a distinct people into the future. He points out that the forests, waterways and plants and animals their ancestral lands provide are indispensible for the Mi’kmaq’s survival as a people.
That survival is currently threatened by clearcutting the forest in what one woman at the meeting called a “corporate feeding frenzy.” One highly visible effect of clearcutting and the subsequent spraying of a chemical identified as a likely carcinogen to prevent natural regrowth is the collapse in provincial deer populations. Many other species of plants and animals are threatened with extinction by clearcutting.
The sense of urgency about stopping the forest are wiped out has been heightened by the Gallant government’s refusal to respond to repeated requests by the Mi’kmaq to begin consultations on a number of issues. Like the Alward government before it that attempted to force shale gas on communities like Elsipogtog without consultation, the Gallant government is refusing to consult with the Mi’kmaq, including on the apparent drive to clearcut as much forest as possible before the Mi’kmaq can get to court.
Kopit Lodge spokesperson Ken Francis told the Elsipogtog meeting that since being elected, the Gallant government has been refusing requests to consult on a range of issues affecting the Mi’kmaq and their land. Kopit Lodge represents the Elsipogtog Band in matters dealing with resource extraction.
McIvor cautioned the meeting that the Aboriginal title claim “is not a silver bullet” that will immediately end all threats to the Mi’kmaq’s ancestral lands. Rather, he described the claim as a “strategy to force the provincial government to seriously engage” with Aboriginal people and begin respecting their rights.
“There’s no better way to get someone’s attention than with a lawsuit,” McIvor said, adding that, in terms of dealing with governments and corporations, “if they can ignore you, they will ignore you.”
He noted that once an Aboriginal title claim is in place, governments and corporations have to start taking Aboriginal concerns seriously because the liability involved in continuing to ride roughshod over Aboriginal rights becomes too great.
The Mi’kmaq case will be strengthened by a 2014 Supreme Court of Canada ruling that, as McIvor noted in his 2014 publication First Peoples Law, “regular use of definite tracts of land on a territorial basis for hunting, fishing and otherwise exploiting resources is sufficient to establish Aboriginal title.” That case, Tsilhqot’in vs. British Columbia, means “when Aboriginal title is established … the Crown must either obtain the consent of Indigenous peoples to use Aboriginal title lands or meet the legal requirement for justifying an infringement.”
As with the Tsilhqot’in in British Columbia, so-called “Crown lands” in New Brunswick were never ceded by treaty or sold, and so remain Aboriginal land.
Terming New Brunswick a “political backwater” with provincial governments that are “still back in the 19th century,” McIvor said the Elsipogtog legal action serves the interests of both Aboriginal and non-Aboriginal peoples who do not want to see their children, grandchildren, and subsequent generations deprived of their rightful heritage. He did not address the prevailing culture of collusion between New Brunswick provincial governments and the province’s largest corporations.
McIvor also recounted a case in British Columbia that saw the residents of a single industry town siding with Indigenous people, and against their employer, to protect and preserve a river and its fish stocks. The same parallels exist in New Brunswick where support among non-Indigenous people for the efforts of Indigenous peoples to protect the province’s natural heritage is strong and growing.
McIvor is no stranger to the struggle for justice for Indigenous people and the environment. He and his firm have extensive experience defending and advancing Aboriginal title, Aboriginal rights and Treaty rights across Canada.
“Unlike many countries, Indigenous Peoples in Canada have constitutional rights and protections that require governments to consult with them and accommodate their interests,” McIvor said.
“We should be proud of Section 35 [which enshrines Aboriginal rights in the Constitution] because it represents history and principles inherited from our ancestors that are fundamental to Canada.”
Section 35 of the Constitution, which requires both consultation with Aboriginals and the accommodation of their interests, was put in place “to ensure distinctive Aboriginal nations survive into the future,” McIvor says. “To perpetuate the Mi’kmaq in the future means they have to have their land, because ‘who’ they are is intimately connected to their land.”
“This is not just about harvesting rights; it’s about the power to be part of the decision-making process. When people, and not just governments and corporations, are involved in decision-making, better decisions get made.”
McIvor said that when Aboriginals are ignored and shut out of the decision-making process, “it means that non-Aboriginal people are sidelined too.” Thus, there is a natural alliance between Aboriginal and non-Aboriginal people alike who love the planet and want to protect the natural heritage of their children and of all subsequent generations.
McIvor also noted that the provincial government in British Columbia did not take Aboriginal concerns seriously until Aboriginal title was asserted, and the same thing seems to be going on in Mi’kmaq territory.
Dallas McQuarrie writes for the NB Media Co-op in Kent County.