Treaty Renewal

Treaty Renewal (c. 1985 to present)
The renewal of the treaty relationship between the Mi’kmaq and the Federal and Provincial governments has been a defining period in Canada’s history. Rather than an exact year, or even decade, Treaty Renewal is marked by the growing empowerment and self-determination of the Mi’kmaw Nation.

Community organizations, led by the Union of Nova Scotia Indians (now the Union of Nova Scotia Mi’kmaq) in the 1970s, began to articulate and push for Mi’kmaw sovereignty and equity for the Nation. Land claims, and the formation of organizations like the Nova Scotia Native Women’s Association, the Native Council of Nova Scotia, and the Micmac Association of Cultural Studies were all early efforts to move the Nation toward a larger goal of renewing the treaty relationship.

Legal Success and Changing Dynamics
A series of monumental developments in the 1980s secured a new era through which the Mi’kmaq continued to seek a renewed treaty relationship with the Federal and Provincial governments. The 1982 repatriation of the Constitution enshrined Treaty and Aboriginal Rights in modern law through Section 35 of the Constitution Act, which recognized and affirmed Treaty Rights. Section 52 of the Act made the treaties part of the supreme law of Canada. Section 25 of the Canadian Charter of Rights and Freedoms also protected Treaty Rights from being infringed upon by the private rights of Canadians. This was a watershed moment where the rights and responsibilities embedded in the 18th century treaties would no longer be a responsibility of the British Crown. Instead, they became constitutional responsibilities of the Government of Canada and its provinces.

The 1985 James Matthew Simon case (R v. Simon) was the first modern Supreme Court decision to affirm the Peace and Friendship Treaties. It was followed by affirming decisions in R v. Marshall (1999) and R v. Bernard (2005), as well as others. These Supreme Court of Canada decisions, along with other related cases, changed the way people across Canada understood treaty rights and obligations. Here in Mi’kma’kik, the cases changed the way that Mi’kmaw and non-Mi’kmaw individuals and organizations interacted in the public sphere.

Donald Marshall Jr. was charged with fishing for eel out of season in 1993. His appeal of this charge, rooted in the knowledge that the Peace and Friendship Treaties protected Mi’kmaw rights to fish led to the groundbreaking Marshall decision in 1999, which affirmed these treaty rights. (Courtesy of Mi’kmaq-Maliseet Nations News)

A series of national and provincial commissions and inquiries have worked alongside these Supreme Court decisions to challenge Canadians to work towards equity with indigenous peoples on matters of land, water, natural resources, ancestral places, health, education, justice, economic development, culture, language, and governance. The Royal Commission on the Donald Marshall Jr. Prosecution, the Royal Commission on Aboriginal Peoples (RCAP), and the Truth and Reconciliation Commission (TRC) have laid out frameworks,
identified key issues, and made recommendations that continue to affirm Mi’kmaw efforts to seek justice and equity from the harms of the Treaty Denial period.

Consultation and the Duty to Consult
Today, the Crown—represented by the Federal and Provincial governments—works together with the Mi’kmaq to determine how best to implement Treaty Rights. It is not always an easy process, but the parties have remained committed to this tri-lateral process. Consultation is required when Federal and Provincial actions or decisions impact Treaty Rights. The consultation process brings all parties to the table through sanctioned representatives to discuss the priorities of those involved. If Treaty Rights are impacted, then everyone works together to find an acceptable solution. All parties have both responsibilities and rights in this negotiation process. Ultimately, governments seek long-term solutions that are acceptable to all.

Dr. Viola Robinson has been a long-time champion for Mi’kmaw treaty rights, (among other important initiatives like Mi’kmaw women’s rights). She was the president of the Native Council of Nova Scotia from 1975 to 1990, a Commissioner on the Royal Commission on Aboriginal Peoples, as well as the Lead Negotiator for Kwilmu’kw Maw-klusuaqn from 2011-2021. (Courtesy of Viola Robinson)

Generations of Effort
Treaty Renewal has grown through the efforts of many people across a myriad of organizations. Akin to reconciliation, it has required the work of people across communities and sectors to make it a reality. If Treaty Denial is defined by the loss and damage of land and water, children and education, health and well-being, and community and identity, then the Treaty Renewal period has seen growing strength and independence in these same areas.

There are a great many issues facing contemporary communities. The Treaty Rights process is just one pathway through which people are seeking greater equity for Mi’kmaw people as well as for other indigenous people in Canada. As Canadian society moves forward, learners will increasingly be asked to understand the realities of the modern treaty relationship in many personal and professional contexts. The more they understand the context of the relationship, the stronger it will be.