That's a question many people are asking. Hundreds of years after Europeans first arrived in North America, why do we now need to negotiate with First Nations?
There are several compelling reasons:
We must honour our treaties.
There is a four century history of co-existence between the European settlers and the Mi'kmaq, Maliseet and Passamaquoddy First Nations in the Maritimes and Gaspé. On the East Coast, Peace and Friendship Treaties were signed with Mi'kmaq, Maliseet and Passamaquoddy First Nations between 1725 and 1779. Treaties are solemn agreements that set out longstanding promises, mutual obligations and benefits for both parties. The British Crown first began entering into treaties to end hostilities and encourage cooperation between the British and First Nations. As the British and French competed for control of North America, treaties were also strategic alliances which could make the difference between success and failure for European powers. Unlike later treaties signed in other parts of Canada, the Peace and Friendship Treaties did not involve First Nations surrendering rights to the lands and resources they had traditionally used and occupied, but focused on peace, diplomacy and trade. In 1982, the Constitution Act recognized and affirmed the existing Aboriginal and treaty rights of the Aboriginal people of Canada, including the Peace and Friendship Treaties. Canadians must show respect for the longstanding Peace and Friendship Treaties and our continuing treaty relationship with First Nations by honouring these treaties.
The courts have recognized treaty rights and encouraged negotiations.
In September 1999, the Supreme Court of Canada (SCC) in the Marshall decision confirmed that the Mi'kmaq and Maliseet people of the East Coast continue to have treaty rights to hunt, fish and gather to earn a moderate livelihood. These treaty rights flow from the Peace and Friendship Treaties signed in 1760 and 1761 between the British Crown and the Mi'kmaq and Maliseet people of the East Coast. 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. Canada is committed to finding a resolution which will implement these rights to the satisfaction of all parties involved.
There are outstanding issues of Aboriginal rights and title.
The Mi'kmaq and Maliseet maintain that they continue to hold Aboriginal rights and title throughout their traditional territory beyond the treaty rights affirmed in the Marshall decision. The Peace and Friendship Treaties in the Maritimes and Gaspé region of Québec did not involve any Mi'kmaq or Maliseet surrender of rights to the land and resources. In 2006, the Sappier & Polchies and Gray decisions confirmed site-specific Aboriginal rights to harvest logs for personal use in New Brunswick, further clarifying the Aboriginal rights context on the East Coast and highlighting the need to resolve outstanding Aboriginal rights through negotiations.
The Canadian Constitution recognizes and affirms existing Aboriginal rights, but does not define them. Over the years, the courts have helped to clarify certain aspects of the relationship between Aboriginal people and the Crown. However, the courts have only partially defined the nature and scope of Aboriginal rights and have encouraged governments and First Nations groups to resolve these outstanding rights issues through negotiations.
Negotiation is a practical and constructive way forward.
Canada needs to address its treaty obligations, while at the same time addressing other potential rights that may exist. Negotiation is the most practical and constructive means to achieve this and help build a new relationship between Government, First Nations people and Atlantic Canadians. It's a flexible instrument, allowing the parties to come up with a plan together for what will be negotiated and how.
Negotiating treaty rights, at the same time as Aboriginal rights and title, creates a special situation. There is no model or a generic approach to follow on how to proceed in these negotiations. Negotiations will only succeed through understanding, good will and cooperation on all sides. Together, we have to devise processes in each Maritime province and in the Gaspé region of Québec which meet the needs and interests of the parties.
These are some of the reasons we are negotiating with Mi'kmaq and Maliseet First Nations and provincial governments in the Maritimes and Québec.
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