Mi'kmaq own entire Province, N.S. court told

KELLY TOUGHILL
Toronto Star
Saturday, December 9, 2000

New battle unfolds over native rights

HALIFAX. Mi'kmaq people own the entire province of Nova Scotia, from gas fields far offshore to the precious metals that may lie beneath the hills of Cape Breton, a court was told this week.

A dramatic new battle over native rights is unfolding here, where lawyers are arguing for the first time that Mi'kmaq people have title to the entire province.

The court case centres around 35 native loggers who cut timber on crown land, saying they had a treaty right to do so.

But the case goes far beyond who can cut down trees.

Lawyer Bruce Wildsmith calls it the next phase of the same battle that prompted bloody conflicts over native lobster fishing earlier this year.

In last year's Donald Marshall decision, the Supreme Court of Canada ruled that 240-year-old treaties give Mi'kmaq and Maliseet people commercial rights over the fishery.

That prompted battles with both commercial fishermen and federal fishery officials over who would control the lobster fishery in Nova Scotia and New Brunswick.

Wildsmith was the lawyer who argued the Marshall case for the Mi'kmaq people before the Supreme Court.

"It's like a second Marshall case, except it's dealing with the forest resources instead of the fishery resources," Wildsmith said.

"The Marshall case was ground-breaking in establishing that the treaties were valid and related to harvesting resources and trading those resources. This is like a follow-up case to Marshall and stands very much on the shoulders of Marshall, but it just moves the name of the game to a different resource."

Wildsmith said he is going further now, by arguing that Mi'kmaq people have aboriginal title to the land.

"Nova Scotia and the Maritime provinces are prime candidates for having unceded aboriginal title," Wildsmith said.

"The bottom line is that the Mi'kmaq were here, both at the point of contact and at the point that British acquired sovereignty.

"They were using and occupying all of Nova Scotia and they never did anything in their treaties or otherwise to give up their interest in that land."

If the judge agrees, he said, it would be a beginning point for negotiations with the federal government.

Prosecutor Richard MacKinnon says the case has nothing to do with aboriginal rights.

He said it was about the fact Mi'kmaq loggers violated the Crown Lands Act by cutting timber without a permit.

Judge Patrick Curran is expected to rule on the case in the new year.

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{ au: Kelly Toughill dt: 12/09/00 sc: tstar}