📜 New Brunswick: Treaties, Land Claims, and the Path to Reconciliation

This quick overview provides key information on the treaties, land claim complexities, government failures, and the critical role of archaeology in New Brunswick's relationship with its Indigenous peoples, the Wolastoqiyik (Maliseet) and Mi'kmaq Nations. This is highly relevant material for a blog focused on reconciliation and governance in Canada.

🤝 Treaties of New Brunswick (1725–1779)

The relationship between the Crown and the Indigenous peoples of the region is fundamentally rooted in the Peace and Friendship Treaties. These treaties were negotiated between the British and the Wabanaki Confederacy (which includes the Mi'kmaq, Wolastoqiyik, Passamaquoddy, and others) primarily between 1725 and 1779.

 * Purpose: The treaties were designed to reaffirm peace, end hostilities following periods of war, and regulate trade. They were not treaties of land surrender.

 * Key Terms: Indigenous signatories agreed to cease hostilities and resolve conflicts through the legal system. In return, the British promised not to interfere with Indigenous hunting, fishing, and farming.

 * Significance: These treaties remain legally binding documents today. The Canadian Constitution recognizes and affirms existing Aboriginal and treaty rights, making these 18th-century agreements foundational to modern legal and political relationships.

⚖️ Land Claims on Private and Crown-Granted Lands

The question of Aboriginal title, which predates and was not extinguished by colonization, is central to contemporary land claims, including those involving private property.

 * The Wolastoqey Nations Claim: The Wolastoqey Nations in New Brunswick have filed a significant Aboriginal title claim covering over half the province, including lands held by private owners, even those granted by the Crown during colonization (fee simple interests).

 * The Court's Stance: Recent New Brunswick court decisions have clarified a critical legal distinction:

   * A court can declare Aboriginal title over all lands within a claim area, including privately owned lands, recognizing that the Crown’s original grants were burdened by this pre-existing title.

   * However, the legal claim for Aboriginal title must be brought against the Crown (federal and provincial governments), not directly against private third parties (landowners/companies).

 * The Crown's Responsibility: The court has affirmed that the Crown is solely responsible for the process of reconciliation. This means that if Aboriginal title is proven over private lands, the Crown may be ordered or directed to use its expropriation powers to return the land to the Indigenous group, with the Crown then obligated to pay compensation to the private landowner. This framework is the mechanism by which the government has legislated the ability for Indigenous title claims to challenge historical Crown grants.

💔 Government Failures and the Path for Canada

The strained relationship between the government and New Brunswick's Indigenous communities reflects systemic issues that are mirrored across Canada, yet could have been handled differently to offer a better model for reconciliation.

 * Jurisdictional Deferred Responsibility: New Brunswick, like many provinces, has historically deferred responsibility for Indigenous affairs to the federal government, citing the federal government’s fiduciary duty. This has often led to stalled negotiations and a lack of cohesive provincial action on critical issues.

 * Exclusion from Governance: Events like the entrenchment of Bill 88 in the New Brunswick constitution, which recognized the rights of the English and French communities but not the Aboriginal community's right to self-government, contributed to a feeling of exclusion and mistrust.

 * Stalled Treaty Implementation: There has been limited progress on reaching long-term agreements regarding the harvesting of timber and other resources on Crown land, despite court rulings affirming resource rights. The slow pace of implementing the original Peace and Friendship Treaties and modern land claims (Specific Claims and Comprehensive Claims) is a widespread Canadian failure.

A proactive New Brunswick could have laid a better path by:

 * Provincial Leadership: Taking provincial leadership to proactively settle resource and title claims rather than waiting for court-mandated obligations.

 * Constitutional Inclusion: Ensuring the constitutional recognition of the rights of Wolastoqiyik and Mi'kmaq peoples.

 * Co-Management: Establishing robust co-management frameworks for Crown lands and natural resources.

🏺 Prioritizing Archaeology and History

The proper prioritization of archaeological research in collaboration with Indigenous nations is crucial for reconciliation, land claims, and protecting history.

 * The Damage of Neglect: When the discovery or protection of sites is swept under the rug due to fear of halting development or facing land claims, it often leads to unauthorized disturbance, theft of artifacts, and permanent loss of cultural history. Unregulated digging and looting cause far more damage than controlled, ethical archaeological excavation.

 * Archaeology as Evidence: Archaeological findings are invaluable evidence in Aboriginal rights and title cases, helping to prove continuous, exclusive, and sufficient use of a territory, which is a key legal standard.

 * Empowering Indigenous Protection: Prioritizing and funding archaeological study, undertaken with the guidance and consent of Indigenous communities, provides tribes with the specific historical data needed to:

   * Identify and confirm significant sites for protection.

   * Validate land claims with material proof, strengthening their legal position.

   * Protect their sacred and cultural history from destruction or theft.

 * Economic Clarity: By using archaeological surveys to narrow in on lands that do not have any significant history (or where no historical occupation can be proven), the government and industry can streamline development approvals and focus land claim negotiations on demonstrably significant areas. This reduces uncertainty for New Brunswickers and the economy while honouring the duty to protect heritage.