Hello Reader, this time Tabir Hukum will discuss about the comprehensive land claims policy and modern treaty-making and the treaties of peace and friendship in atlantic canada : R. v. Marshall.
The Supreme Court of Canada decision in Calder v. British Columbia (A.G.), [1973] S.C.R. 313, changed existing thinking on aboriginal rights and opened the way for the modern land claims process. In Calder, the Nisga'a sought a declaration that they owned their traditional lands in the Nass Valley in what is now British Columbia. Of the seven judges who participated in the decision at the Supreme Court, six ruled that the Nisga'a title still existed; three ruled that it had been extinguished. The seventh judge, Justice Pigeon, dismissed the Nisga'a claim on the basis of a procedural defect in bringing the case to court. The Nisga'a thus failed to obtain recognition of their aboriginal title, but they considered the decision a victory nonetheless, because it affirmed the possibility of a continuing right to traditional lands.
Following the Calder decision, the federal government implemented a comprehensive land claims policy to settle outstanding First Nations lands claims. As of 2004, the federal and provincial or territorial governments had signed comprehensive land claims settlement treaties covering parts of British Columbia, Northern Quebec, Labrador, the Yukon and the Northwest Territories. These included a treaty providing for creation of the new territory of Nunavut, which came into existence in 1999, and, at long last, a treaty with the Nisga'a Nation. The Alberta government, acting independently of the federal government, negotiated a settlement with Metis peoples providing a secure land base, development funds and some self-government for Metis living in eight settlement areas in northern Alberta.
THE TREATIES OF PEACE AND FRIENDSHIP IN ATLANTIC CANADA : R. V. MARSHALL
In September 1999, the Supreme Court of Canada released its decision in R. v. Marshall, [1999] S.C.J. No. 55 (QL), [1999] 3 S.C.R. 456; [1999] S.C.J. No. 66 (QL), [1999] 3 S.C.R. 533, allowing Donald Marshall's appeal against his conviction on charges of catching and selling eels in violation of federal fisheries regulations. Marshall, a Mi'kmaq from Nova Scotia, asserted that, under treaties signed in 1760-61, Mi'kmaw people had the right to fish and to sell fish without having to comply with federal regulations. The Court, in a five-to-two decision, agreed, basing its ruling on the "truckhouse clause" of the 1760-61 Treaty, which reads as follows :
And I do further promise for myself and my tribe that we will not either directly nor indirectly assist any of the enemies of His most sacred Majesty King George the Second, his heirs or Successors, nor hold any manner of Commerce traffick nor intercourse with them, but on the contrary will as much as may be in our power discover and make known to His Majesty's Governor, any ill designs which may be formed or contrived against His Majesty's subjects. And I do further engaged that we will not traffick, barter or Exchange any Commodities in any manner but with such persons or the managers of such Truck houses as shall be appointed or Established by His Majesty's Governor at Lunenbourg or Elsewhere in Nova Scotia or Acadia.
The Majority held that this clause, when read in light of the British need for peace with the Mi'kmaw during a period of war with France, implicitly recognized the right to hunt and fish to obtain goods to trade. The treaty rigth to trade, however, was for the purpose of obtaining necessaries, which the majority defined for the modern context as a right to sell enough to secure "a moderate livelihood", or "food, clothing and housing, supplemented by a few amenities"; that is, something beyond "bare subsistence" but not enough for the "accumulation of wealth".
It follows that hunting and fishing rights recognized in the 1760-61 Treaties are limited by the definition of a moderate livelihood. They are also limited by the right of the government, as determined by earlier Supreme Court decisions on aboriginal hunting and fishing rights, to enforce hunting and fishing regulations intended to protect the stock or for some other purpose of public importance, such as public safety or general economic development. The government has the onus of demonstrating that such regulations are necessary for the stated purpose, and that they infringe as little as possible on the right of First Nations people. Such justification is more difficult if the regulations have been put in place without any consultation with First Nations peoples.
Umpteen posts of tabir hukum about the comprehensive land claims policy and modern treaty-making and the treaties of peace and friendship in atlantic canada : R.V. Marshall, hopefully the writing of tabir hukum about the comprehensive land claims policy and modern treaty-making and the treaties of peace and friendship in atlantic canada : R.v. Marshall can be beneficial.
Books : In Writing Tabir Hukum :
Alan M. Sinclair and Margaret E. McCallum, 2005. An Introduction to Real Property Law (Fifth Edition). LexisNexis : Canada.
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| Figure Property Law : First Nations Rights in Land and Resources - The Comprehensive Land Claims Policy and Modern Treaty-Making |
