The Elsipogtog First Nation has filed an Aboriginal Title Claim in the Saint John Court of Queen’s Bench on behalf of the Mi’kmaq people for title to the Mi’kma’ki district of Sikniktuk. The claim was filed November 9, 2016 by Vancouver lawyer Bruce McIvor who specializes in Aboriginal law.
Sikniktuk is traditional Mi’kmaq territory, and covers about 30% of New Brunswick. It extends from south of Sackville, north along the Northumberland Strait, as far as Baie Sainte-Anne, and inland to the west as far as Saint John, on the Bay of Fundy.
“This claim is about protecting our lands and waters for our children and our future generations,” said Elsipogtog Chief Arren Sock, one of two plaintiffs officially making the title claim, at a news conference in Elsipogtog on November 9.
The other plaintiff in the case is Kopit Lodge spokesperson Kenneth Francis. Kopit Lodge is a Mi’kmaq organization representing the Elsipogtog First Nation on resource development issues and has been trying, unsuccessfully, to begin consultations with Brian Gallant’s Liberal government about resource development in the Sikniktuk district.
“We cannot stand by while the government ignores us and makes decisions that threaten the traditional lands of the Mi’kmaq people,” Chief Sock said. “It’s time for us to exercise our rights and responsibilities to protect our territory.”
Elsipogtog’s claim asks the Court to confirm that the Mi’kmaq Nation continues to hold Aboriginal title and rights in its traditional Sikniktuk territory. It also asks the Court for injunctions to prevent the further destruction of the land, water, air and forest.
The Elsipogtog title claim comes at a time when Indigenous peoples, Acadians and Anglophones living in the Sikniktuk territory and elsewhere are opposing clearcutting and glyphosate spraying of the forest.
The Mi’kmaq case is bolstered by a unanimous 2014 Supreme Court of Canada ruling in British Columbia (Tsilhqot’in Nation v. British Columbia) recognizing the Tsilhqot’in First Nation’s Aboriginal title claim to the territory they had historically occupied.
Critical to the Tsilhquot’in Nation’s victory in court was the fact that the Tsilhquot’in had never signed any treaty surrendering, ceding or in any way relinquishing title to their traditional territory. Like the Tsilhqot’in, the Mi’kmaq of New Brunswick have never surrendered, ceded or sold their traditional territories.
Sock and Francis also noted the 1761 “treaty of peace and friendship” between the British Crown and the Mi’kmaq nation. By that treaty, “the British Crown confirmed and recognized the existence of the Mi’kmaq Nation’s Aboriginal title.”
“We want to offer hope and strength to our youth by taking a stand to protect Mi’kmaq title and rights,” stated Francis. “The federal government has promised a renewed relationship with Indigenous peoples based on partnership and respect, … consistent with the United Nations Declaration on the Rights of Indigenous Peoples.
Unfortunately, we still see Canada and the Province disregarding our rights and making decisions that threaten the health of our people and our lands. By filing this claim we are asking both levels of government to step up and take our rights seriously.”
Francis thanked Elsipogtog’s French and English allies, including Notre Environnement, Notre Choix in Kent County, and both the Fredericton and Kent County branches of the Council of Canadians, for their financial support of its court case.
Sock and Francis both talked about justice for the Mi’kmaq people, before McIvor answered questions pertaining to the case. Speaking to Elsipogtog supporters and the media, Chief Sock said the court action was rooted in the long struggle against shale gas.
In 2010, the Conservative Alward government ignored its constitutional obligation to consult with Aboriginal people about developments on traditional Aboriginal lands, and simply announced shale gas development was proceeding. As peaceful protests against shale gas gathered momentum, in 2013, the government had special RCMP and CSIS tactical squads use violence to try to silence protesters and force shale gas development on a very unwilling Kent County populace.
At the time, the internationally respected human rights organization Amnesty International was harshly critical of the New Brunswick government for violating both Canadian law and Canada’s obligations to Aboriginal people under international agreements. A subsequent federal commission of inquiry into complaints of RCMP misconduct during the protests against shale gas has yet to report.
“Elsipogtog intends to continue to work with our Indigenous neighbours and our Canadian allies to ensure the protection of the lands and waters that sustain us,” said Chief Sock. “As part of the Mi’kmaq Nation we have a responsibility to act as stewards of our territory.”
While the election of a new Liberal government in New Brunswick in 2014 led to a moratorium on shale gas development, the province continues to ignore its constitutional obligation and duty to consult with Aboriginal people. Francis notes that Kopit Lodge has been attempting to start consultations about development on Mi’kmaq lands with the Liberal government of Brian Gallant for the last two years. All attempts by Kopit Lodge to begin a dialogue or consultations with the Gallant Liberals have so far been ignored.
A lawyer unwilling to be publicly identified says it is clear that the Mi’kmaq have a very strong prima facie case. When and if the Mi’kmaq do gain title, they will have the right to decide how the land will be used, to enjoy, occupy and possess the land, and to proactively use and manage the land, including its natural resources.
Francis cautioned that the court battle could be long and expensive. The Tsilhquot’in Nation was always the rightful and legal owner of its traditional lands, but it took more than 20 years and a lot of money for the Tsilhquot’in to have this right and ownership asserted in court.
Online donations to the Elsipogtog legal fund can be made here.
Dallas McQuarrie is a retired journalist living in the unceded Mi’kma’ki district of Sikniktuk.