By Keith Cherry
*Note: the word L’nu is the autonym of the people otherwise known as Mi’kmaq, an Indigenous group spanning much of what is sometimes called Atlantic Canada.
When Indigenous L’nu fishers launched their own lobster fishery in pats of Nova Scotia this fall, they faced brutal, racist violence and chilling police indifference. For many Canadians, the spectacle of hate and violence are shocking. For anyone who follows aboriginal law, it’s barely surprising. Images of burning lobster pounds fit easily alongside images of assault riffles on Wet’suwet’en Yintah, bullet riddled landscapes at Guftaffson lake, and armed troops at Oka.
At the heart of all these confrontations, however, there lies a set of racist legal doctrines whose continued existence is even more shocking – and even more violent. Those concerned by the violence in L’nu territory should take this opportunity to reflect on the racist foundations of Canadian law, and to consider how the long-overdue recognition of Indigenous jurisdiction could transform those foundations for the better.
Trick or Treaty?
When European Settlers first encountered the L’nu, they met a sovereign people who enjoyed full jurisdiction over their lands and waters. Recognizing this, Settlers sought treaties to negotiate space for themselves on L’nu land. Though treaty, they gained certain rights and jurisdictions from the L’nu, who reserved other rights and jurisdictions for themselves. Treaty, then, is both the foundation of Settler authority in L’nu territory, and also a recognition that L’nu jurisdiction persists to this day.
However, Settlers quickly disregarded the treaties that gave them authority. Instead, courts developed racist legal doctrines which re-cast the L’nu as too primitive to make binding agreements. As a result, Settler authorities proclaimed treaties were not real law, and the perceived foundation of Crown sovereignty came to rest on racial superiority, rather than international diplomacy.
This racism denied Indigenous jurisdiction, thereby extending Settler powers beyond what was legally granted to them.
More recently, courts have moved to a subtler form of racism. In 1985,the Supreme Court finally recognized that treaties are indeed law. However, they subsequently ruled that treaty rights can be infringed unilaterally by the Crown.
The effect of these cases is to re-cast treaties as documents that can be modified and violated by Settler institutions without Indigenous consent, rather than as international agreements that can only be modified through negotiation. By empowering Settler governments to manage the relationship unilaterally, these cases continue to deny L’nu jurisdiction and therefore expand settler jurisdiction beyond its legal foundations.
When the L’nu asserted their treaty rights to fish in the Marshal cases, Canadian courts used this logic allow the crown to regulate L’nu fisheries unilaterally, thereby denying the L’nu jurisdiction over their fisheries. 21 years after Marshal, the crown-managed fishery continues to leave little space for L’nu participation.
It’s in this context that L’nu communities launched modest fisheries under their own jurisdiction, outside of Settler law. In essence, the L’nu are asserting what their treaties guarantee them—jurisdiction, subject to no other authority than themselves and the terms of their agreements.
All Eyes on L’nu territory?
This denial of Indigenous jurisdiction is familiar from coast to coast to coast.
Much of the territory in B.C. is unceded—meaning it has no treaties at all. As such, the Crown never legally acquired ownership or jurisdiction from the nations who continue to hold it.
In Sparrow, however, courts found that Indigenous jurisdiction has somehow been transformed into ‘Aboriginal rights’—rights which can be defined and violated unilaterally in Settler courts without Indigenous consent.
Just as in L’nu territory, Canadian law works to present Indigenous peoples not as nations who enjoy jurisdiction like any other, but as subjects of Settler jurisdiction. Thus, whether treaties exist or not, Settler law works to deny Indigenous jurisdiction and thereby expand Settler jurisdiction beyond its legal foundations.
Towards Treaty Federalism
Thankfully, there is a clear alternative to the racist unilateralism of contemporary Canadian law. Settler governments can accept that Indigenous nations have jurisdiction over their lands and waters subject only to the terms of their treaties. To recognize Indigenous jurisdiction is also to recognize limits on Settler jurisdiction. To put it simply – the Crown is not at liberty to violate the terms on which it was granted authority in Canada.
The implications are both clear and profound. In B.C., rejecting racism means accepting there is no foundation for Settler jurisdiction in the province until treaties are established. In L’nu territory, it means that Crown jurisdiction is confined by the terms of treaty. In both cases, it means recognizing that Indigenous peoples retain certain jurisdictions on their lands and waters to this day.
Where Settler governments seek to control or profit from those lands and waters in ways not provided for by treaty, they cannot do so unilaterally. They must negotiate nation-to-nation agreements, just as it would be if Canada sought to regulate or profit from the lands of any other nation. In this sense, ours must become a treaty-federation that recognizes independent Indigenous jurisdictions and establishes forums for negotiating governance multilaterally.
The implications for the current dispute in L’nu territory are clear – Ottawa must recognize that the L’nu have jurisdiction over their waters subject only to the terms of their agreements. This is what it means to say, “we are all treaty people.”
Guest Author Profile
Keith Cherry is a settler academic and community activist living on unceded Lekwungen territories. Keith is a Killam Postdoctoral fellow at the University of Alberta, a fellow at the Center for Global Studies at the University of Victoria, and a founding member of the Cedar Trees Institute. His doctoral research explored legal pluralism in two contrasting settings, settler/Indigenous relationships in Canada and member-state/Union relations in the European Union. Moving forward, Keith is interested in exploring the relationship between Indigenous activists and settler allies as an alternative form of pluralism that can help transcend the limits of state-based discourses.