Aboriginal rights refer to practices, traditions and customs that distinguish the unique culture of each First Nation and were practiced prior to European contact. These are rights that some Aboriginal peoples of Canada hold as a result of ancestors’ long-standing use and occupancy of the land. Aboriginal rights vary from group to group depending on the custom, practices and traditions that have formed part of their distinctive cultures. Aboriginal rights are protected under s. 35 of the Constitution Act, 1982.

Treaty rights refer to Aboriginal rights set out in a treaty. Starting in 1701, in what was to eventually become Canada, the British Crown entered into treaties to encourage peaceful relations with First Nations. Some early treaties, like the Peace and Friendship treaties in the Atlantic region, were strategic alliances. Other later treaties, such as the Numbered Treaties in Ontario, Prairies, as well as parts of the Northwest Territories (1871 to 1921), involved First Nations ceding or surrendering rights to the land in exchange for treaty rights. Treaty rights are protected under s.35 of the Constitution Act, 1982.

Aboriginal land claims can involve both the right to the use of lands and/or an Aboriginal title to the land. In 1997, the Supreme Court of Canada ruled in the Delgamuukw case that Aboriginal title is a property rights to the land itself – not just the right to hunt, fish and gather. Aboriginal title is a communal right; an individual cannot hold Aboriginal title.

In September 1999, the Supreme Court of Canada in the Marshall decision confirmed that Mi’kmaq and Maliseet people of the East Coast continue to have treaty rights to hunt, fish and gather. These treaty rights are outlined in the Peace and Friendship Treaties signed in 1760 and 1761 between the British Crown and the ancestors of the Mi’kmaq, Maliseet and Passamaquoddy people. The Supreme Court did not, however, define how these treaty rights were to be implemented, but instead encouraged the parties to negotiate a resolution in a fair and equitable manner.

Yes, the Mi’kmaq, Maliseet and Passamaquoddy people maintain that we continue to hold Aboriginal rights and title throughout our traditional beyond the treaty rights affirmed in the Marshall decision. The Peace and Friendship Treaties did not involve any land surrender of rights to the land and resources.

Additional Questions and Answers arisen from the Marshall Decision (August/ 04)

1. How is the situation in the Maritimes and Gaspe with the Mi’kmaq and Maliseet different from other parts of Canada?

The Supreme Court of Canada confirmed that Mi’kmaq and Maliseet First nations continue to have treaty rights to hunt fish and gather towards earning a moderate livelihood. These treaty rights must be implemented. Along with these treaty rights, First Nations maintain that they continue to hold Aboriginal rights and title through out their traditional territory. This creates a special situation unlike any other found in Canada. There is no model or generic approach to follow on how to proceed in these negotiations. All parties must be prepared to consider how to devise a negotiation process which meets everyone’s circumstances, needs and interest.

2. Who is the Chief Federal Negotiator?

Mr. Tom Molloy has been appointed to represent Canada as Chief Federal Negotiator. A lawyer from Saskatchewan, Tom has considerable experience and expertise in dealing with Aboriginal issues. He has successfully negotiated the Nunavut Land Claim Agreement and the Nisga’a Treaty in British Columbia.

3. What is in the Chief Federal Negotiator’s Mandate to Negotiate?

The Chief Federal Negotiator currently has a mandate to enter into framework Agreement negotiations with respect to outstanding issues of Aboriginal and treaty rights with Mi’kmaq and Maliseet First Nations and provincial governments in Nova Scotia, New Brunswick, Prince Edward Island and Gaspe region of Quebec. The Chief Federal Negotiator’s mandate does not limit what subjects may be negotiated. It is up to the parties to agree on subject matters for negotiations. Generally, the areas of Federal Jurisdiction which are open for negotiations include, fish, National Parks, migratory birds and federal Crown Lands.

4. How long will it take to negotiate these agreements?

We have to be realistic-setting up long term negotiation processes and reaching agreements on issues of Aboriginal and treaty rights will take time. Entering into a negotiation process is a long commitment. It is impossible to say how long it will take, except that it is important to take the time and care necessary to develop approaches and agreements that will work and stand the test of time.

5. How much will the negotiations cost?

It is too early to estimate how much these agreements may cost. Canada will strive for agreements that are affordable and cost-effective and that result in stronger, more self-sufficient Mi’kmaq and Maliseet First Nations who are able to participate fully in their regional and provincial economies.

6. For example, what might be negotiated as part of one of these agreements?

The rights and benefits set out in these agreement may include, but are not limited to:

• Ownership of certain lands
• Wildlife harvesting rights
• Participation in land, water, wildlife and environmental management in specific areas
• Financial payments
• Ownership of certain lands
• Role in managing heritage resources and parks in the area
• Resource revenue sharing
• Self-government
• Measures to participate in the economy

7. What Happens to the treaties once a new long-term agreement is negotiated?

This will be up to the parties to determine though negotiations. Section 35 of the Canadian Constitution recognizes and affirms existing Aboriginal and treaty rights and this includes the Peace and Friendship Treaties signed in the Maritimes and Gaspe region of Quebec. Negotiations will respect the Peace and Friendship treaties.

8. Who will be involved in Negotiations?

Negotiations generally involve three parties: Government of Canada, Provincial Government and the First Nation group. Each party is represented by a negotiation team. It’s Canada’s preference to have one main negotiation table in each province. Because most lands and resources issues fall under provincial jurisdiction, the participation of the provincial government in the negotiation of Aboriginal and treaty rights is strongly encouraged. Provincial participation is necessary for any negotiations involving areas of provincial jurisdiction or provincial lands and resources.

9. How will the Mi’kmaq and Maliseet be represented in Negotiations?

Canada wants these negotiations to be inclusive and will work with the other parties to ensure that as many potential beneficiaries are represented in these processes as possible to address both Aboriginal and treaty rights. There are 34 Mi’kmaq and Maliseet First Nations in Nova Scotia, New Brunswick, Prince Edward Island and Gaspe region of Quebec who are potentially affected by the Marshall decision. The Peace and Friendship Treaties were signed by groups of Mi’kmaq and Maliseet before the concept of “Bands” was introduced by the “Indian Act” in 1876. Today, Canada views Mi’kmaq and Maliseet bands as the modern day successors of the original groups that signed the treaties. Canada will continue to encourage First Nations to work with other Aboriginal groups to try to ensure and inclusive Processes which can address both Aboriginal and Treaty rights.

10. What will the negotiations process look like?

In each region, the negotiations process will deal with Aboriginal and treaty rights, including aboriginal title, and will be designed around the circumstances, needs and interests of all involved parties. As a preliminary step, Canada believes that exploratory discussions are helpful for the parties to exchange view and determine if there is enough common ground to proceed. Typically, after these discussions, the parties might begin to set out the basis for negotiations, including subjects to be negotiated, in some sort of frame work.

11. What issues are going to be discussed?

It is up to parties to identify the topics for discussion. For example, the government of Canada can propose subjects matter that fall within federal jurisdiction such as fish, National Parks, migratory birds and federal Crown lands.