THE GOVERNMENT ANNOUNCED in February 2018 that there will be a new legal “Recognition and Implementation of Indigenous Rights Framework,” as a way to breathe new life into Section 35 of the Constitution.

Section 35 is the Canadian constitutional protection of Aboriginal and Treaty Rights. The purpose of this brief is to highlight some of the issues and concerns about this new framework approach as it pertains to the northeastern part of Turtle Island, with a particular focus on the Mi’kmaq in negotiations with the federal and provincial governments in what is known as the Made-In-Nova Scotia Process (Mi’kmaq Rights Initiative (MRI) Negotiations).

It is well-documented that older policies of assimilation such as the White Paper of 1969 have been re-articulated as narratives of self-determination and reconciliation with an emphasis on nation-to-nation or “Crown” relations.[1] I contend that this is also the case with the recently announced new legislative framework.

The Peace and Friendship Treaties are being domesticated under Canadian law through the framework of Section 35. Section 35 is further domesticating the international law of UNDRIP and Indigenous rights to free, prior and informed consent.

Domesticating Marshall

Current treaty and self-government negotiations with Mi’kmaq and Wolastoqiyik (Maliseet) (and more recently with Passamaquoddy) Chiefs in the maritime provinces and the Gaspésie region of Québec were triggered by the Supreme Court of Canada (SCC) decision known as the Marshall Decision in 1999.[2] The Marshall Decision is based on the case of the late Donald Marshall, Jr., a Mi’kmaw[3] from Unamaki (Land of the Fog, now known as Cape Breton) who was charged for fishing and selling eels without a license. In Marshall, the SCC upheld the 1760 and 1761 Peace and Friendship Treaties as the basis for a treaty right to fish for a moderate livelihood.[4]

Though treaty fishing rights are the precursor for negotiations, since 1999 the Made-In-Nova Scotia process has culminated into negotiations over other resource sectors, as well, such as forestry and various energy development projects.

Canada lists the Made-In-Nova Scotia process as a Comprehensive Lands Claims process on its website, despite repeated confirmations from the federal government that the process is not a “modern treaty” process and “extinguishment” is not being contemplated for participating groups.[5]

Rather, as stated in a letter from Joe Wild, Senior Assistant Deputy Minister on Treaties and Aboriginal Government, the failure to properly categorize the Made-In-Nova-Scotia process indicates that Canada is looking to “change the terminology.”[6]

It is in this light that we must interpret the Liberal’s announcement that the Nova Scotia Process has transformed into a “Recognition of Indigenous Rights and Self-Determination Discussion Table” (or “rights and recognition” table, for short). This table has expanded now to include the Mi’kmaq of Nova Scotia along with the Mi’kmaq of New Brunswick and Prince Edward Island, the Maliseet of New Brunswick and now includes the Maliseet of Viger, Quebec and the Peskotomukati (Passamaquoddy), New Brunswick.