With regard to specific treaties being made between the crown and aboriginal bands or communities in the Maritimes, the British crown signed a number of historical documents with the Mi’kmaq, Maliseet and Passamaquoddy people between 1725 and 1779. These historical documents are commonly referred to as treaties, but only three of them, the two LaHeve treaties of 1760-61 and the Cope treaty of 1752, have been formally recognized by the Supreme Court of Canada as having the constitutional status of treaties.
In response to part (a) of the question, it is important to consider the geographical boundaries and political structures of the Maritimes in the 1700s. In the Marshall decision, the Supreme Court of Canada noted that “...the British signed a series of agreements with individual Mi’kmaq communities in 1760 and 1761 intending to have them consolidated into a comprehensive Mi’kmaq treaty that was never in fact brought into existence. The trial judge found that by the end of 1761 all of the Mi’kmaq villages in Nova Scotia had entered into separate but similar treaties”. It is important to note that during the colonial period, Nova Scotia was considered to include modern day New Brunswick.
Regarding parts (b) and (c) as they relate to the Supreme Court of Canada decision on Marshall, only the 1760-61 treaties were recognized by the Supreme Court of Canada as treaties under s. 35 of the Constitution Act, 1982. The 1760 LaHeve treaty was signed on March 10, 1760 in Halifax. The 1761 LaHeve treaty was signed on November 9, 1761 in Halifax.
In addition, the other “historical documents” that have been identified from various archival sources are virtually identical to the LaHeve treaty of 1760 with the exception of the February 23, 1760 agreement with the Saint John (Maliseet) and Passamaquoddy Indians, which contained similar promises but also renewed previous peace and friendship treaties with the crown.
Copies of the following 1760-61 documents were provided to the House of Commons Standing Committee on Fisheries and Oceans, by the Department of Fisheries and Oceans in May 2001:
Renewal of 1725 Articles and 1749 Articles, with the delegates of the Saint John and Passamaquoddy, at Chebucto (Halifax) Harbour, 23 February 1760; Treaty dated 10 March 1760 with Chief Michael Augustine of the Richebuctou Tribe; Treaty with Chief Paul of LaHeve Tribe at Halifax, 10 March 1760; Treaty with Claude René, Chief of Chibennacadie and Muscadoboit, concluded at Halifax, 10 March 1760; Treaty with the Merimichi Tribe, concluded 25 June 1761; Treaty with Chief Claude Atouash of the Jedaick Tribe, concluded at Halifax, 25 June 1761; Treaty with Etiene Apshobon of the Pogmouch Tribe, Halifax, 25 June 1761; Treaty with Joseph Argimaut, Chief of Mesiguash Indians, Halifax, 8 July 1761; Treaty with Chief Jeannot Picklougawash on behalf of the Pictouk and Malegomich Tribes, 12 October 1761; and Treaty with Chief Francis Mius of the LaHeve Tribe, concluded at Halifax, 9 November 1761.
In part (d) reference is made to “Marshall or Halifax treaties”. It is assumed this is in reference to the LaHeve treaties of 1760-61, which were considered by the Supreme Court of Canada in the Marshall decision. Therefore, with respect to which bands or communities are covered by these treaties, the Government of Canada is of the view that while modern day first nations are the most likely successor groups of the original signatory groups, it is impossible to determine a direct correlation between the application of treaties to modern day first nations.
It is important to keep in mind that the passage of time has meant that there have been changes to the composition of some of the signatory groups. We recognize the difficulty in connecting the signatories of historic treaties to particular contemporary first nation communities. This may be due in part to migration of first nations, intermarriage, government policies creating bands and other initiatives such as the centralization of reserves. However, since the court found that all Mi’kmaq communities participated in the treaties, members of modern communities are likely beneficiaries of these treaty rights.
For these reasons, the Government of Canada has determined that the most appropriate course of action is to enter into a dialogue with the 34 Mi’kmaq and Maliseet first nations in present day Nova Scotia, New Brunswick, Prince Edward Island and Quebec to consider the implications of the Marshall decision.
Parts (e) and (f) of the question are unanswerable since only the two LaHeve treaties of 1760-61 and the Cope treaty of 1752 have been formally recognized by the Supreme Court of Canada as having the constitutional status of treaties. In addition, the Government of Canada maintains that while modern day first nations are the most likely successor groups to the original collectives that signed the treaties, it is impossible to determine a direct correlation between the application of treaties to contemporary first nations. As for which bands are not covered by treaties, part (g), the question is unanswerable due to changes in the composition of some of the signatory groups over the years. Nonetheless, the Government of Canada has drawn from the observations of the Supreme Court of Canada in its decision on Marshall and has determined that working with the 34 Mi’kmaq and Maliseet first nations on the implications of this decision is the most appropriate course of action.
