May 9, 2007
First Perspective
On behalf of the Miawpukek First Nation, Chief Mi'sel Joe expresses dismay and disappointment that the Supreme Court of Canada has declined to hear an appeal from the Supreme Court of Newfoundland and Labrador in the case Her Majesty the Queen in Right of Newfoundland versus Ken Drew et al (short form, R. v. Drew).
The Drew case arose when members of the Miawpukek Band were ordered to remove their hunting and trapping cabins in the Bay du Nord Wilderness Area, as established in 1990. Band members asserted their aboriginal and treaty rights under the Constitution Act, 1982 (the Canadian Charter of Rights and Freedoms) to carry on traditional activities in a geographic area long established as a primary hunting area for the people of Miawpukek.
The Province commenced a legal action in 1996. Justice Leo Barry of the Supreme Court of Newfoundland and Labrador (Trial Division) held in a decision dated 17 July 2003 that the Miawpukek Mi'kmaq did not have the claimed aboriginal or treaty rights. On 11 October 2006 the Supreme Court of Newfoundland Court of Appeal upheld the decision at trial.
Mr. Drew made application for leave to appeal to the Supreme Court of Canada, with the support of the Miawpukek First Nation, the Assembly of First Nations, and the Atlantic Policy Congress of First Nation Chiefs. On 3 May 2007 the Supreme Court of Canada rejected this application.
"It is indeed unfortunate that the Supreme Court of Canada declined to hear the Drew case. The application of the law, in this case, effectively extinguishes the rights of the First Peoples of this land, and we continue to firmly believe that his is contrary to the Constitution," said Assembly of First Nations National Chief Phil Fontaine. This is especially disheartening when it relates to the basic rights of our people such as hunting, fishing and trapping.
"It would seem that First Nations do not have fair access to judicial remedies when the main source of evidence is documents written from a European perspective only, and are interpreted in a manner contrary to the recognition of First Nations rights," added National Chief Fontaine. "By this decision, the Miawpukek First Nation has been denied access to their economy, and their traditional activities in the Bay du Nord Wilderness Reserve, which constitutes a violation of their collective Indigenous rights, and basic human rights."
Chief Joe states: "This is very disappointing to the Miawpukek First Nation. We have long held that the Province's challenge to our aboriginal and treaty rights should come before the Supreme Court of Canada. Current Supreme Court of Canada legal precedent which the justices in Drew strictly adhered to requires the Mi'kmaq of Newfoundland to prove their use of the area since before European contact in the 1500's. The Metis in Newfoundland, however, have to only demonstrate their use of the area since effective European control in the 1800's. The Drew case involved some very important national legal issues that the Supreme Court of Canada will at some time need to address. The Miawpukek First Nation is not alone in asking for clarification on these issues as numerous legal academic articles have also indicated that the Supreme Court will have to clarify some issues such as the threshold date for aboriginal rights of Metis versus that of Indian and Inuit aboriginal peoples."
"In September of 1763 a Treaty of Peace between the British Crown and the Mi'kmaq people was renewed on the west coast of Newfoundland. But in 1764 Newfoundland Governor Hugh Palliser ordered the Mi'kmaq to remove themselves from Newfoundland. He was unsuccessful, for the simple reason that we were at home, living the full range of our lives in Newfoundland, and roaming the interior of the Island while the Imperial power and European settlement was limited to a narrow coastal strip. The Supreme Court of Canada's decision to not hear our appeal gives effect to Palliser's orders. If we are barred from the land, how can we continue to teach our children our customs and traditions? How can we continue to live in our homeland in Newfoundland as Mi'kmaq people?
"At least Governor Palliser was honest with our people. He did not want us here because of who we were, Mi'kmaq people. The Supreme Court of Canada has condemned us just as certainly. We believed that the Supreme Court of Canada would be a forum in which our voice would be heard and a fair disposition rendered. We have not abandoned that hope. But we are deeply, deeply disappointed that a Canadian court refuses to hear us."
We are currently reconsidering our options. And our faith in the Supreme Court of Canada."