History and Establishment of the Treaties
Throughout the 17th and 18th centuries, the French and English empires fought for control over land in the Maritime Provinces. France originally claimed much of the East Coast as its territory (known as Acadia) given the importance of access to the St. Lawrence River and to natural resources including forests, furs, and fishing. To this end, the French were the first to establish strong commercial and military alliances with local Indigenous nations with member nations of the Wabanaki Confederacy, including the Mi’kmaq, Wolastoqiyik, Passamaquoddy, Abenaki, and Penobscot nations.
France fought the British in a series of wars from 1675-1713, and one result was that great deal of Acadia was ceded to the British (in the signing of the Treaty of Utrecht). As the borders of the ceded land were not clearly defined, there was subsequent conflict between the nations of the Wabanaki confederacy and the British.
By 1725, however both sides wanted the escalating conflicts to end. A Penobscot spokesman, named Sauguaaram, led talks among relevant nations to move towards peace. The British Governor, William Dummer, sought to negotiate peace and friendship with the Indigenous peoples through the 1725 Treaty of Boston. Under the treaty’s terms, Indigenous signatories agreed to, “…forbear all acts of hostility injuries and discords towards all the subjects of the Crown of Great Britain, and not offer the lease hurt violence or molestation to them or any of them in their Persons or Estates.” By signing the treaty, Indigenous peoples agreed to cease hostilities against the British in exchange for protection of their right to hunt, fish and farm. One year later, the Mi’kmaq and Wolastoquiyik in both Nova Scotia and New Brunswick signed a similar agreement, known as Mascarene’s Treaty.
The 1725 treaty did not establish a form of stable and long-lasting peace. The French continued to instigate Indigenous attacks on the British, triggering bounties placed on Mi’kmaq heads. The British colonial government under Governor Edward Cornwallis, did order a temporary end to the bounty hunting, although the bounty hunters continued their grisly work. By September of 1752, the Chief of the Shubenacadie Mi’kmaq, Jean Baptiste Cope, looked to end conflict with the British through some sort of agreement. After several murders, Chief Cope wanted to “prevent the complete annihilation of his people.” The colonial government agreed, and began drafting a new agreement, one of what would come to be known as the Peace and Friendship Treaties. The British and groups of Mi’kmaq and Passamaquoddy nations continued to make peace and friendship treaties throughout the 1760s and 1770s.
The Peace and Friendship Treaties are not land surrender treaties, but rather establish terms of “peace and commercial relations,” including rights to hunt, fish, farm, and to earn a reasonable livelihood. Both the 1752 and 1760 treaties in particular have unique provisions about hunting and fishing rights, namely the right to establish “truck houses” (i.e., trading posts) for the exclusive use of Indigenous people.
Treaty Rights to Hunt, Fish, and Earn a Reasonable Livelihood
Few disputes or actions occurred around the guarantees associated with full hunting and fishing rights as outlined in the treaty, until 1985, after the Canadian Charter of Rights and Freedoms recognized Indigenous treaty rights. In the wake of the Charter, it was clear that the rights to hunt and fish on traditional territory could be observed.
In 1993, Donald Marshall Jr., a Mi’kmaq man, was arrested in relation to his work fishing and selling eels in Nova Scotia. His catch was seized by the Department of Fisheries and Oceans and Marshall was charged with fishing without a license, selling the fishes without a license, and fishing during a closed season. The charges led into a six-year legal battle over First Nations treaty rights, eventually reaching the Supreme Court of Canada. In this case, Marshall, fought back against the charges, which explicitly violated the terms of the 1760 and 1761 Peace and Friendship treaties that allowed Mi’kmaq people to sell and catch fish under the law. The Supreme Court of Canada finally rendered its decision in September of 1999 and acquitted Donald Marshall Jr. of all charges, recognizing the treaty rights of Mi’kmaq people. As Indigenous communities applauded the Court’s willingness to respect their treaty rights and earn a moderate living, non-Indigenous people involved in the fisheries expressed concern about their capacity to fish.
Following the decision in Marshall, members of Burnt Church (Esgenoopetitj) First Nation exercised their treaty rights to earn a living through fishing, and began working in small cooperative lobster fishing dories. However, the neighbouring non-Indigenous community (also named Burnt Church) relied heavily on lobster fishing, and became concerned with the growing Indigenous fishery. Their concerns were mainly about stock and the legitimacy of Indigenous fishers being able to fish in the off-season, and to be able to fish without government-issued licenses or tags. The non-Indigenous fishers released a statement against the Indigenous fishery in the fall of 1999, and a protest at the community’s wharf followed shortly thereafter. The violence that ensued was the beginning of what is now known as the Burnt Church Crisis, during which tensions escalated over four fishing seasons, as non-Indigenous and Indigenous fishers clashed over the right of Mi’kmaq people to exercise their treaty rights to fish without substantive regulation. During this time, the Department of Fisheries and Oceans seized catches and traps and arrested fishers, enforcing regulations to which, following Marshall, people with treaty rights should not have been subject.
By the summer of 2001, the Department of Fisheries and Oceans offered the members of Burnt Church First Nation a licence to fish for traditional and ceremonial purposes. This meant the Department would recognize the fishery as legal, and therefore, aggressive enforcement was no longer necessary. On August 1st, 2002, the Minister of Fisheries and Oceans, Robert Thibault, and Chief Wilbur Dedam announced they had reached an agreement on how to govern the Burnt Church fishery. The Mi’kmaq fishers could participate in the normal spring commercial fishing season but could also fish in the fall for food and ceremonial purposes. Following Sarah King’s research on the Burnt Church Crisis, this agreement allowed many to earn extra income for their families, as the cost for a fishing license and the gear required was often cost-prohibitive. Others felt that it was a bittersweet victory–they were able to operate an Indigenous fishery, but not under Indigenous authority, as they had to still operate under federal license. For many Mi’kmaw sovereigntists, the dispute at Burnt Church was not solely about fishing rights, but about their right to govern themselves (a right the Canadian government continuously denies). Many felt the agreement made in 2002 did not address their goals of sovereignty and justice.
Contemporary Relevance of the Peace and Friendship Treaties
In September of 2020, a similar dispute over the treaty rights to fish and earn a reasonable livelihood raged in Nova Scotia. After the Sipekne’katik First Nation “launched its own Mi’kmaq-regulated, rights-based lobster fishery,” non-Indigenous lobster fisherman engaged in targeted violence and harassment, ransacking a catch and storage facility, trapping an Indigenous fisherman in a contested lobster pound, damaging property, and eventually burning a lobster pound to the ground. A number of assault charges were also laid related to the protests. The Department of Fisheries and Oceans seized hundreds of lobster traps in November 2021, and although Indigenous people have purchased one of the major buyers of seafood on the East Coast, in some ways taking control of the market, the dispute is ongoing.
Despite the the recognition of treaty rights in the Charter of Rights and Freedoms and the decision in Marshall, not to mention the experiences at Burnt Church and since, rights to fish and earn a reasonable livelihood as established under the the Peace and Friendship Treaties continue to be contested.
Additional Resources:
- A documentary by Alanis Obamsawin on the Burnt Church Crisis (Is the Crown at War with Us?)
- Daniel Paul’s book on First Nations history and encounters with settlers (We Were Not the Savages)
- An article from APTN News describing the relationship between the Peace and Friendship Treaties and the contemporary exercise of fishing rights.
Contributors: Keith Ablao, Nigel Augustine, Matt Bonnell, Joshua Bell, Bryden Forbes, Lukas Hewitson, and Anna Jones