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On February 18, the CBC reported that MP Leah Gazan (NDP – Winnipeg Centre), whose motion to recognize what happened in residential schools as genocide received unanimous consent in the House of Commons last October, now proposed to outlaw denial of that genocide as “hate speech.”¹ The Inroads listserv responded quickly, and honed in on a question that became the subject of an intense – but civil and informed – discussion: What is genocide?

February 18

HENRY MILNER

I hadn’t realized that Parliament had unanimously voted to call what happened at the residential schools genocide. Once something is called genocide, then the next logical step is to make denying it a criminal act.

FRANCES ABELE

According to the UN Genocide Convention, which Canada has signed on to,

Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.²

Seems to fit.

Okay, now let’s see if we can discuss this calmly. My first question: Do you oppose all legislation against hate speech?

HENRY MILNER

Two answers, Frances:

One: I do not believe that the same word adequately describes what was done in residential schools and in Nazi death camps.

Two. As someone all of whose grandparents, uncles and aunts were killed in the latter, I still support the United States in rejecting restrictions on hate speech.

Here is my thinking on this.

Consider the statements below and how we are to react to them. Should we

1. Make it illegal to express them publicly,
2. Disprove them.
3. Ignore them.

A: The six million killed by the Nazis is an exaggeration.
B: The death camps are a myth.
C: The residential schools did some good as well as harm.
D: The residential schools did more good than harm.

My answer to all of them is to prove them untrue where that is the case, but not to use the state to punish the person who stated them, however hateful the content. It comes down to the simple proposition that in the end “because it hurts my feelings” is insufficient justification for the use of state sanctions. Otherwise, we open ourselves to what we see in certain academic settings where discussion of controversial issues is silenced (and people’s careers threatened) because they (might) hurt someone’s feelings.

FRANCES ABELE

Thanks for this, Henry. I hate to spoil a good argument, but I find myself largely in agreement with you.

HENRY MILNER

Great.

How about your thoughts on:

NDP MP Leah Gazan, who got the House of Commons last October to unanimously recognize that genocide occurred at residential schools, now wants to take the issue a step further by drafting legislation to outlaw attempts to deny that genocide and make false assertions about residential schools.

“Denying genocide is a form of hate speech,” said Gazan, who represents the riding of Winnipeg Centre.

“That kind of speech is violent and re-traumatizes those who attended residential school.” …

The Office of Crown-Indigenous Relations Minister Marc Miller said he would be interested in reviewing the proposed legislation.

“Residential school denialism attempts to hide the horrors that took place in these institutions,” Miller’s office told CBC News.³

FRANCES ABELE

I agree that the residential school system constituted genocide.

I don’t think it is wise or helpful to compare horrors and suffering. My imagination can hardly stretch to comprehend the Shoah. But there are other horrors: Pol Pot’s Cambodia, Rwanda, slavery in the Americas …

I am willing to keep considering Gazan’s legislation idea to see if there is something I have missed, but I start from the position that it won’t help and will quite possibly do harm. Seems like an ill-considered response.

HENRY MILNER

We are getting closer, though not yet on genocide: On one level it is just semantics; on another, however, since the term genocide really only emerged with the Shoah, I find attaching it to the residential schools a bridge too far.

Consider not uncommon historical examples of Nation A conquering lands belonging to Nation B. The conqueror imposes the language and culture of A upon B. For example, this is what happened when the Americans took over parts of what been Spanish colonies by force. Genocide?

PS: The trouble with semantics is that they can sometimes kill. This could be the case now if ideologues denouncing it as white colonialism manage to keep an armed intervention in desperate Haiti from happening.

PHILIP RESNICK

I think we need to distinguish physical genocide, i.e. the attempt by a majority group to kill any or all of a minority group or people on the basis of their racial, tribal, religious character, from cultural genocide, i.e. the attempt to extirpate the linguistic, cultural, religious identity of a minority group by imposing the culture of the dominant group to the exclusion of that of the minority one.

Examples of the first would include the Armenian massacres of World War I by the Turks, the Holocaust, Rwanda 1994, Tigray in recent years. Examples of the second would include the Uyghurs in China, First Nations in Canada and various other New World societies, and arguably what would happen to Ukraine if Putin had his way.

The lines are not always clearcut, but the examples I cite may help to clarify the discussion.

FRANCES ABELE

Why is this a useful distinction?

The UN definition of genocide, which lacks an adjective to modify it, covers every one of the cases you list.

PHILIP RESNICK

There seems to me to be an important difference between the desire to physically exterminate a particular group of people and the desire to extirpate their cultural identity and replace it with another. While many Canadians might accept that an element of cultural genocide was at play in our historical treatment of First Nations, they would not accept the argument that the physical extermination of First Nations was the name of the game in this country. Perhaps the drafters of the UN definition may think it makes no difference how we define the word genocide – ask the victims of physical genocide if they agree,

FRANCES ABELE

I follow you, Phil, but what you are saying does not quite make sense to me.

First, we should not make arguments based on what “many Canadians” might accept. On that reasoning, we’d still have the death penalty. Surely we need labels that state frankly what happened, whether or not “many” agree.

It has been established that the purpose of the residential school system and its companion, the Indian Act, was to eliminate First Nations as societies, and that such leaders as John A Macdonald wished to “kill the Indian in the child.” It’s true that the physical side of this involved starvation, residential segregation, separation of children from their parents, mistreatment of children and policing, not death camps.

I think it does not advance understanding to try to compare horrors. But I wonder if you are thinking that we risk normalizing or “demoting” the massive horror of the Shoah by naming other instances with the same term. Maybe that is the case. But the drafters of the UN Convention did not think so. It always seemed to me that they just did not want anything remotely like the Shoah to ever happen again, to anyone.

ARTHUR MILNER

I’m increasingly sceptical of attempts to use extreme words as a way to fan the flames of solidarity, discontent and resistance.

As Henry pointed out, genocide was coined to describe the Holocaust. (I’m not sure why we needed a new word.) But once it was associated with the Holocaust, people recoiled from the word genocide in horror. So naturally all the oppressed people of the world wanted access to that horror.

As far as I can make out, then, killing or causing distress to two members of a group can be genocide, as long as it’s done with the intent to destroy part of a group. (Well, two is part, isn’t it?) How do you prove intent? Or lack of intent? The result: “Well, I guess genocide isn’t really serious.”

The point is, laws don’t work unless they’re respected, in both senses of the word. Language escalation creates scepticism of national and international law, which does no one any good.

PHILIP RESNICK

The origin of the term genocide goes back to 1944. It was framed by Raphael Lemkin, with the Holocaust very much in mind, to refer to the attempted destruction of a people. To that degree, physical destruction was central to the original definition. And to that degree, it could be extended in its original meaning to include other cases such as the Armenian massacres, the Rwandan massacre and many others throughout history.

I have no problem with widening the definition to include the extirpation of cultural identities of the type that the historical treatment of First Nations in this country often entailed. But if we are going to use the term genocide in this case, I think it is important to distinguish it from the physical extermination that has underlain the practice of genocide in the cases referred to above. If we fail to do so, by not inserting the term cultural genocide into the discussion, we end up equating Canada’s treatment of First Nations with the practice of the Turks during World War I, the Nazis during World War II or the Hutu exterminationists. And that simply won’t do, Frances, however much you may wish to argue the contrary.

GARETH MORLEY

Phil, Lemkin was closely involved in the drafting of the Genocide Convention and it is very explicit that “killing” is just one of the means by which genocide can be accomplished.

PHILIP RESNICK

Fair enough, Gareth. But that doesn’t change the fact that if we use the term too loosely to apply to any and all cases of cultural, racial or religious victimization, we end up diluting it beyond measure. Is the treatment of the Kurds by Turkey, Syria, Iraq and Iran a case of genocide? Of the Rohingya in Myanmar? Of Muslims in Modi’s India? Of Christians in various parts of the Middle East? By Boko Haram of its victims in the Sahel?

Genocide is one of those words that has to be used carefully. And if we want to extend its use more broadly, as in the Canadian case where First Nations are concerned, then the qualifier cultural becomes all-important.

ARTHUR MILNER

Gareth is right about Lemkin, though his wide-ranging accusations of genocide seem to have remained a secret. As Michael A. McDonnell and A. Dirk Moses wrote in the Journal of Genocide Research in 2005,

In “Part III: modern times” of a projected global history of genocide from antiquity to the present, he wrote, inter alia, on the following cases: “1. Genocide by the Germans against the Native Africans”; “3. “Belgian Congo”; “11. Hereros”; “13. Hottentots”; “16. Genocide against the American Indians”; “25. Latin America”; “26. Genocide against the Aztecs”; “27. Yucatan”; “28. Genocide against the Incas”; “29: Genocide against the Maoris of New Zealand”; “38. Tasmanians”; “40. S.W. Africa”; and finally, “41. Natives of Australia.” Then, in a “Report on the preparation of a volume on genocide” dated March–May 1948, a less ambitious project comprising ten chapters, two of which covered extra-European colonial cases: “2. The Indians in Latin America” and “10. The Indians in North America (in part).” The Holocaust, a term Lemkin never used, was not included, although the Armenians and Greeks in Turkey were, as well as the Early Christians, and the Jews of the Middle Ages and Tsarist Russia.⁴

Which brings us back to the problem. If genocide is extreme and rare, we will be horrified. If it’s ubiquitous, well, we shrug.

MARK CRAWFORD

What worries me is how the politics of hate speech and “social activist” scholarship is having a chilling effect. Part of that chilling effect derives from the expanding definition of words like harm, hate, genocide, discrimination, abuse and now even phrases like residential school denialism and hostile work environment. Paradoxically, I think that our working vocabulary in this area is actually shrinking with each new edition of the Newspeak Dictionary, as each word or phrase is expanded to cover more territory – because, as Arthur nicely put it, “all oppressed people want access to that horror.” The emotional, political and often legal and financial investments are so great that academics are needed to provide some detachment and objectivity that is otherwise lacking.

Volume 4 of the Truth and Reconciliation Commission report points to the death or disappearance of about 3,000 children over the history of the schools, about half from tuberculosis, and a majority in “school or school-related cemeteries.” Just how clandestine they were is a bit vague and varies quite a bit. Shockingly, but not surprisingly, the main reason most kids’ bodies weren’t returned to their families or home communities was just described as “cost.” The ground-penetrating radar results broadly confirm the Truth and Reconciliation Commission analysis, but there are some credible suggestions that they may be inflating the results because not every disturbance or burial is necessarily of a distinct human skeleton. A sceptical, questioning attitude is essential to this scholarly enterprise, but I know that most of my colleagues are afraid to have one when it comes to Indigenous policy.

FRANCES ABELE

Phil, it’s not about what I want. I used to lean towards the use of the term cultural genocide myself, until I actually read the UN definition. Since then, I have not been able to see what is not “physical” about the things that were done to First Nations.

Obviously one is free reject the UN definition, or find ways to modify it.

February 19

ARTHUR MILNER

According to the UN definition, neither I nor anyone I know is guilty of genocide. That’s a relief.

Wait. I wonder if dozens of people I know are guilty of genocide because they participated in “forcibly transferring children of the group to another group,” i.e., they adopted BIPOC children. If so, I would think many of them are justifiably proud of their part in genocide.

Since immigration involves integration and, likely, eventually absorption, is accepting refugees an example of genocide? Refugees are, after all, forced to migrate.

We can see that there are millions of instances of genocide daily, and since “it does not advance understanding to try to compare horrors,” they’re all equally genocide. (Should we try to prevent the international adoption of Turkish and Syrian children orphaned by the earthquake?)

Has anyone written about “systemic genocide”? In that case, every murder of an Indigenous person, committed by anyone – in fact, every death of an Indigenous person under the average life expectancy of Canadians – would be an instance of genocide. Every Indigenous person unable to speak his or her language is an example of genocide. Every refusal by any government to provide cradle-to-grave education in the appropriate Indigenous language is …

The other day I had a conversation with an Indigenous person about his pipe ceremony, which relegates women to an inferior role. Am I guilty of genocide? I admit it – I had the intent of modifying an Indigenous religious practice.

Perhaps I’m also guilty of reductio ad absurdum. But the UN definition is absurd to begin with.

Really, read Tomson Highway’s Permanent Astonishment⁵ and see if you want to use the same word to describe residential schools and the intentional murder by starvation of Ukrainians.

GARETH MORLEY

Arthur, there are plausible and implausible arguments in law. You can’t just pick a phrase and then argue something is genocide without regard to the rest of the definition.

Not all atrocities are genocide. The famines in Ukraine in the 1930s and in Ireland in the 1840s were not genocides because they lacked the intent to destroy a national, ethnic, racial or religious group. I am willing to court controversy by saying the Canadian state’s current neglect of violence against Indigenous women is also not genocide, because however much it might be rooted in racism, the element of intention isn’t there. But it definitely was with the Indian Residential School system, and this has been documented extensively.

Apartheid and colonialism also aren’t (or aren’t necessarily) genocide. The coalition in Israel has genocidal parties in it, but Israel hasn’t committed genocide – although that was the program of Vladimir Jabotinsky’s Revisionists, and almost all the mainstream Israeli parties now are their descendants. This does not necessarily mean they wanted to kill every last Palestinian, but they did want to destroy them as a people. And that was the “unnamed crime” for which Lemkin developed the concept of genocide.

HENRY MILNER

Perhaps for these various acts where no one is trying to physically wipe out a people, we can use another term. I suggest crime against humanity, which is defined by the International Criminal Court as an act “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” This can include, among other things, murder, extermination, torture, enslavement, sexual violence, deportation or forcible transfer of population or other inhumane acts.

REG WHITAKER

This is an “interesting” discussion about an awful topic, but I would like to make one simple point that may be overlooked in all this. While I understand that it might seem repugnant to separate moral condemnation from “objective” analysis of matters like the Holocaust, ideologically inspired exterminations of entire peoples, deliberately engineered famines, etc., I must assert the necessity of social science analysis requiring some degree of detachment, however painful, from moral repulsion. Here is where the all-encompassing UN definition of genocide falls short. Genocide has indisputably become a highly charged political term – understandably of course. A one-size-fits-all definition has a clear political value. But as an analytical term it just won’t do. Surely the industrial-scale extermination of the Jews of Europe in death camps is a different phenomenon from residential schools designed to “kill the Indian in the child.” Both are morally repulsive and I wouldn’t want to even open a discussion of comparative moral turpitude because it would be fruitless and dispiriting for all concerned. But from a position of social science, conflating the two is only going to make for poor analysis. Here’s where cultural genocide does have a demonstrable analytical advantage over genocide, tout court.

February 20

WILLIAM SCHABAS

Indeed, Raphael Lemkin invented the term genocide. In his vision, it was broad enough to cover what today we think of as “cultural genocide.” He contributed to drafting the 1948 Convention. But the text adopted by the UN General Assembly was considerably narrower in scope than what he had envisaged.

African Americans were among the first to invoke the Genocide Convention. In 1951, a very compelling petition focusing on lynching was presented to the United Nations. By then, Lemkin had become a cold warrior. He was dismissive of the African American complaints, arguing that “real” genocide was being perpetrated by the Soviets in the Baltic states.

The definition in the 1948 Convention lists five punishable acts, of which killing members of the group is only one. However, it is misleading to focus on the five acts, because the introductory paragraph requires that any of these acts be committed with the intent to destroy the group. That requirement has been interpreted by the major international courts as requiring an intent to destroy the group physically.

Some commentators have suggested that “forcible transfer of children,” as such, amounts to genocide. But the Convention, as it has been interpreted by the International Court of Justice, requires that such forcible transfer be committed with the intent to exterminate the group physically. If the evidence of the intent to destroy the group is circumstantial, based upon inferences drawn from conduct, it is also necessary to rule out any other reasonable explanation for the facts. This is where most of the allegations of genocide falter.

International lawyers have no monopoly on use of the word genocide any more than criminal lawyers have ownership of terms like murder, torture and rape. Journalists, pundits and politicians, including national legislatures, often use the term in a manner that suggests they have departed from the legal definition. This may be deliberate. Many are probably unaware of the legal definition. Some of them obviously think genocide is no more than a synonym for atrocity.

HENRY MILNER

Hello Bill,

Bringing your unquestioned expertise in this area into our discussion is much appreciated.⁶

Let me put you on the spot. Does Canada’s policy of residential schools qualify as genocide?

WILLIAM SCHABAS

Henry,

The first question to be answered is whether there is direct evidence proving intent to destroy the group physically. This might take the form of official statements or policy documents confirming that in establishing the residential schools the federal government intended the physical destruction of Canada’s First Nations. I’m not aware of such evidence.

Then, the second question: whether evidence of genocidal intent – the intent to destroy the First Nations physically – can be inferred from the conduct of the government of Canada and those who administered the residential schools.

If the answer to the second question is positive, we must consider what is usually the stumbling block. Is there another reasonable explanation for the conduct other than the intent to destroy the group physically? If there is, then the genocide charge fails.

We apply the same reasoning in Canadian law when people are charged with first-degree murder. If they have provided clear direct evidence of homicidal intent in the form of a statement or an admission, this will generally be enough to convict. But if the charge of first-degree murder is based only on inferences drawn from patterns of conduct – what we call “circumstantial evidence” in Canadian law – all other reasonable explanations for the crime must be ruled out.

In my earlier post I emphasized that the restrictive and narrow approach to genocide is a consequence of the interpretation of the Convention adopted by the major international tribunals. My own sense is that while a new and broader interpretation is possible, it is also unlikely. The International Court of Justice adopted its interpretation in 2007, in the Bosnia case. It was invited to revise this in 2015 in the Croatia case but declined to do so. The same is the case for the International Criminal Tribunal for the former Yugoslavia, which maintained a narrow interpretation of the crime throughout its existence, from the late 1990s until it closed in about 2017. And its successor, known as the International Mechanism, has refused to deviate from this in its most recent rulings. These are recent rulings, and they have been confirmed again and again. We are not dealing with some old precedent that has passed its sell-by date.

The reluctance to change the definition is readily explained by the fact that the conduct in question, although it fails to reach the genocide threshold, is easily condemned as a crime against humanity where the requirements are not as restrictive. It’s a bit like distinguishing between first-degree and second-degree murder. Either way, the convict gets sentenced to life in prison.

PHILIP RESNICK

This has been a stimulating debate and has now prompted my muse to pen some lines:

Genocide

The very word sends shivers down the spine,
the ghosts of vanished tribes and pariah peoples,
of deep-seated intolerance and gruesome slaughter,
leaving a trail of bone and ashes
for the chroniclers of human malice to record.

We can debate the whys and wherefores,
disaggregate the data,
quibble about the numbers,
and still remain in awe
at what our reptilian brain,
when freed of all compunction and restraint,
has wrought.

And if we turn to the gods for solace,
we will find little consolation
as they battle amongst themselves,
hurling anathemas each against the other,
until the vaults of heaven itself
come crashing down.

ARTHUR MILNER

Your clarity, William, made me shiver. And sensible judges. Who would have thought?

I would say to anyone who thinks forced assimilation is the same as physical annihilation: pick any recognized genocide or mass murder. Imagine if Jewish victims of the Holocaust had been assimilated or expelled or prevented from living their lives as Jews. Imagine if the Ukrainian peasants starved to death by Russian Communists had been expelled or forcibly assimilated into the working class and all their ploughshares beaten into swords or looms. Imagine if the Tutsi had been expelled or assimilated. Children would play and go to school. Grandparents would hug their grandchildren. Perhaps the Jews and Ukrainian peasants and Tutsi would have disappeared as distinct groups, as has happened to tens of thousands of tribes and nations and peasants and linguistic groups since the beginning of humanity.

Do we really want the same word – the same law – for physical annihilation and forced assimilation or exile?

I have virtually nothing left of my parents’ culture. No Polish or Yiddish. No religion. Different values. All I have is lox and bagels. Am I to regard myself as dead?

Twenty years ago, I found myself on the mailing list of Lubavitcher ultra-Orthodox Jews. A large envelope arrived; on the outside a headline screamed, “A Second Holocaust Worse Than The First.” What was going on!? I opened the letter. It was “the Holocaust of intermarriage.” That’s what happens when you take inappropriate metaphor for reality.

I hope that – rather than water down the definition of genocide to include “cultural genocide” (itself an unfortunate term as it reduces -cide to metaphor) – the UN and its institutions change the definition and explanation of genocide to match what they’re actually doing.

February 21

MARIO POLÈSE

I am definitely on the side of reserving the (loaded) word genocide for the willful mass killing of a people, which is not the same thing as forced assimilation (also not pretty). A useful way, in my mind, of understanding the distinction is the appropriate punishment. Both are criminal and deserve to be prosecuted, but the first can warrant the death penalty (i.e., Nuremberg), while the second certainly cannot.

As an aside, I have always been wary of debates surrounding the meaning of words, since words are tied to language. I have five languages spinning around in my head, German my mother tongue. The German translation for genocide is Völkermord, which is much clearer. I wonder what the Chinese translation is.

Continue reading “The Meaning of Genocide” →

Image: Nova Scotia lobster boats. Via NSPaul, Wikimedia Commons.

Written by Inroads Contributors Ian Peach and David Perley

The year 2021 was marked by conflict between the federal Department of Fisheries and Oceans (DFO) and Mi’kmaq and Wolastoqi (formerly commonly known as Maliseet) lobster fishers in the Maritime provinces, provoked by DFO’s failure to respect treaty rights. Under the 18th-century Peace and Friendship Treaties between the Wabanaki Confederacy – which includes the Mi’kmaq and Wolastoqi nations – and the British Crown, those nations have a treaty right to fish “as usual” or “as formerly.” The Wabanaki Confederacy agreed to share the use and “fruits” of their lands with the British, but not to transfer control or ownership. In summary, DFO persists in claiming the right to unilaterally regulate a fishery that does not belong to the federal Crown. The department needs to sit down with Mi’kmaq and Wolastoqi fishers and negotiate a comanagement system, based on a mutual commitment to sharing.

On March 3, 2021, Bernadette Jordan, then Minister of Fisheries and Oceans, announced that her department would work with Wabanaki communities to develop Moderate Livelihood Fishing Plans. Jordan promised to “license activities under these fishing plans, opening up the ability for First Nation harvesters to fish and sell their catch, and the opportunity to earn a moderate livelihood.” But she also announced that a key element of these fishing plans would be that the Indigenous fishery would have to operate within the commercial fishing season. Her justification was that this would help ensure “that fish species are harvested sustainably and maintain orderly, predictable, and well-managed fisheries.”¹ Under the treaties, this was not up to DFO to decide.

Perry Bellegarde, at the time Assembly of First Nations (AFN) National Chief, wrote to Prime Minister Trudeau two days after the Minister’s announcement, demanding that the federal government restart negotiations with the Nova Scotia Mi’kmaw. He described Jordan as having “badly mismanaged” the matter because, instead of consulting meaningfully with the Mi’kmaw, she was trying to impose a policy on them. He also called out DFO’s plan to increase federal enforcement of this policy as “overtly hostile actions,” and contrasted this policy with the federal government’s public commitments to implement the United Nations Declaration on the Rights of Indigenous Peoples.²

Mike Sack, Chief of Sipekne’katik First Nation, a Mi’kmaw First Nation in Nova Scotia, said that his community’s fishery would continue to operate outside DFO seasons, and he urged all Mi’kmaw First Nations to reject the federal position.³ PEI Mi’kmaw chiefs also denounced the federal government’s plan.⁴ PEI Senator Brian Francis commented that the federal position “will not reduce the potential for hostility or even violence against the Mi’kmaq but rather increase the surveillance and policing of our fishers and communities … I am left deeply troubled and concerned that the Mi’kmaq and/or other First Nations will be forced to once again resort to the courts to ensure our rights are honoured. That, to me, is not how we achieve real reconciliation.”⁵

Senators Francis and Dan Christmas, along with Liberal MP Jaime Battiste, had earlier recommended that DFO create an Atlantic First Nations Fishing Authority to protect the treaty rights of Atlantic First Nations. Minister Jordan had indicated that she was open to exploring the idea. But the March announcement showed that this openness had given way to DFO’s traditional culture of unilateralism.

In early August, Canadian Press reported that several Mi’kmaq-owned lobster boats were cut loose from their moorings at a Nova Scotia wharf and their catch taken. Chief Sack alleged that the boats were cut loose to damage the Mi’kmaq’s property and intimidate their fishers: “This is unfortunately what we have to deal with, harassment and property damage with no recourse or substantive protection to safeguard our people.”⁶ Later that month, DFO officials arrested Chief Sack, seized his lobster traps and detained him for 45 minutes. The reason for the arrest was the decision of the Sipekne’katik to expand their self-regulated “treaty fishery,” which would begin before the non-Indigenous lobster fishing season opened.⁷

Chief Sack was undeterred in response to his detention. He said that his First Nation would operate under the guidelines of its own fisheries management plan, based on sound conservation principles. Minister Jordan called the “unauthorized” First Nations fishery “concerning” and declared that DFO would enforce the federal Fisheries Act. Chief Sack retorted, “It’s unfortunate they come in, push their weight around and do what they want and aren’t held accountable. For me, it’s systemic racism.”⁸

Wolastoqi chiefs in New Brunswick have repeatedly decried harassment and aggressive intimidation of First Nations fishers by DFO conservation officers, such as their seizure in September 2021 of a small boat owned by members of the St. Mary’s First Nation. The chiefs said conservation officers have stated that “their instructions are to focus on Indigenous fishers.”⁹

Back to the treaties

To really understand the rules that are meant to govern resource management on the territories of the member nations of the Wabanaki Confederacy,¹⁰ one should not begin with what the Supreme Court of Canada has said about treaties but with the Peace and Friendship Treaties themselves. In R. v. Sparrow, the Court invented the idea that the Crown could interfere with an Aboriginal right to fish without Indigenous consent. In R. v. Marshall, the Court invented the idea that Indigenous commercial fishers are limited to earning a “moderate livelihood.”¹¹

But in the Peace and Friendship Treaties, the British made a commitment to allow the nations of the Wabanaki Confederacy to fish “as usual”: in other words, to fish and manage the fishery for the benefit of the people of the nations of the Wabanaki Confederacy as they had always done prior to contact. The limitations on the rights of Indigenous peoples that the Supreme Court of Canada created in Sparrow, Marshall and other cases are not consistent with the terms of the treaties agreed to by the nations of the Wabanaki Confederacy and the British Crown.

As the Wabanaki Nations, never conquered, were parties to treaties with the Crown, these treaties are constitutional documents – constitutive of the terms on which the relationship between the Wabanaki Nations and the British Crown was established and, therefore, the source of whatever rights the Crown has in Wabanaki territory. The Supreme Court of Canada has no more authority than any other institution to change these terms without the consent of the signatories.

Wabanaki people view the Peace and Friendship Treaties as solemn international agreements between the Wabanaki Nations and the British Crown. As historian Sarah Isabel Wallace explains, the French readily established alliances with the Wabanaki that emphasized peace and collaboration in trade.¹² As a consequence of these alliances, the Wabanaki Confederacy fought on the side of France against English colonial forces in the late 17th and early 18th centuries.

By the summer of 1725, both the British and the Wabanaki wanted to end the escalating violence. In December 1725, the Penobscot and some other allied nations in the northeastern United States signed what became known as the Treaty of Boston (or Dummer’s Treaty). The following year, the Mi’kmaq and Wolastoqiyik (as well as the Abenaki and Passamaquoddy in Massachusetts and New Hampshire) signed essentially the same agreement, Mascarene’s Treaty. These treaties, along with others signed later in the 18th century, became known as the Peace and Friendship Treaties.

The Wabanaki consider the treaties to be sacred agreements; in the Wolastoqey language, treaties are referred to as “kci lakutuwakonol,” which means “making sacred relations as long as the sun and moon shall endure.” The Supreme Court of Canada correctly ruled that the Peace and Friendship Treaties are just as valid today as they were in the 18th century. They are timeless.

In the worldview of the Indigenous signatories, the British Crown became a “family member” of the Wabanaki Confederacy on signing the treaties. The British therefore joined the Wabanaki family in accordance with Wabanaki law. As family members, they were expected to coexist in Wabanaki territory and live in peace and harmony with the rest of their Wabanaki family. This is incompatible with unilateral infringement “justified” under a test imposed by a court obtaining its authority from British-derived law.

Wabanaki Elders have shared stories of their hunting activities within Wabanaki hunting territory. A typical hunting activity would include harvesting medicinal plants, securing materials for lodges and birchbark canoes, and following spiritual protocols for the preparation of the food supply provided by specific game found in the territory, such as moose and deer.

Wabanaki Elders further emphasized that the principle of the conservation of resources was an important aspect of hunting, fishing and fowling activities. One hunted and fished only what one needed for clan survival. Each generation was expected to save resources for future generations. This way of life ensured the survival of each succeeding generation. For the Wabanaki, their traditional lands and rivers encompassed a spirit which was tightly connected to the people. This was their identity as Wolastoqiyik, Mi’kmaq, Peskotomuhkati, Penobscot and Abenaki. The Wabanaki honoured all of creation and, in particular, traditional lands and rivers because they provided all that was required for survival.

The British, too, understood that these were the terms of the Peace and Friendship Treaties. At the treaty negotiations in November 1720, the British Treaty Commissioners, on behalf of their Government, told the Wabanaki representatives that “the English have no design to take your country or any of your lands from you; or to deprive you of any of your just Rights or Privileges.”¹³

The English text of the treaties demonstrates that these treaties are treaties of peace and alliance, not agreements to cede the lands or the political sovereignty of the Wabanaki to the Crown. In the English text of the Treaties of 1725 and 1726, for example, the Wabanaki Nations agreed to

forbear all Acts of Hostility Injuries and Discords towards all the Subjects of the Crown of Great Britain, & not offer the least hurt Violence or Molestation to them or any of them in their Persons or Estates, But will hence forward hold & maintain a firm and Constant Amity and Friendship with all the English and will never Confederate or Combine with any other Nation to their prejudice … That His Majesties Subjects the English shall and may peaceably and Quietly Enter upon, Improve & forever Enjoy … their rights of Land and former Settlements Properties & possessions within the Eastern parts of the said Province of the Massachusetts Bay … without any Molestation or Claims by us, or any other Indians.

In exchange, the British promised:

Saving unto the Penoscot, Narridgewalk And other Tribes within His Majesties Province aforesaid and their Natural descendants respectively All their Lands, liberties & properties not by them Conveyed or sold to, or possess’d by any of the English Subjects or aforesaid As also the Privelege of Fishing, Hunting & Fowling as formerly.

The Treaty of 1752 reaffirmed the relationship of peace and friendship, stating that the terms of the treaties of 1725 and 1726

are hereby from this time forward renewed, reiterated, and forever Confirmed … That all Transactions during the Late War shall on both sides be buried in Oblivion with the Hatchet, And that the said Indians shall have all favour, Friendship & Protection shewn them from this His Majesty’s Government … It is agreed that the said Tribe of Indians shall not be hindered from, but have free liberty of Hunting and Fishing as usual and that if they shall think a Truck house needful at the River Chibenaccadie … they shall have the same built and proper Merchandize, lodged therein to be exchanged for what the Indians shall have to dispose of and that in the meantime the Indians shall have free liberty to bring to Sale to Halifax or any other Settlement within this Province, Skins, feathers, fowl, fish or any other thing they shall have to sell, where they shall have liberty to dispose thereof to the best Advantage.

The 1760–61 treaties also provided:

No person or persons belonging to the said Tribes shall at any time hereafter aid or Assist any of the Enemies of His most Sacred Majesty King George the Second or of his Heirs and successors nor shall hold any Correspondence or Commerce with any such His Majesty’s Enemies in any way or manner whatsoever and that, for the more effectually preventing any such Correspondence and Commerce with any of His Majesty’s Enemies, the said Tribes shall at all times hereafter Traffic and barter and exchange Commodities with the Managers of such Truckhouses as shall be established for that purpose by his Majesty’s Governors of this Province at Fort Frederick or elsewhere within the Said Province and at no other place.

While there are differences between the terms of the agreements negotiated with the Wabanaki Nations as understood by those nations and the terms recorded in English, it is clear from both understandings that the Peace and Friendship Treaties did not impede the freedom of the Wabanaki peoples to hunt, fish, trap and gather as they had always done. Nor did they transfer what the common law would understand as “ownership” of their territories and the fruits of those territories to the British Crown.

Rather, the treaties established and confirmed the military alliance between the Wabanaki and the British, and provided that British settlers who had already occupied lands would be allowed to continue to occupy those lands while the rest of the Wabanaki territory not sold to British settlers would remain Wabanaki land. The treaties guaranteed the Wabanaki the right to continue to hunt, fish, trap and gather on their territories as they had always done. The later treaties also promised that the Wabanaki would trade all of the goods that they wished to sell to the British and that “truckhouses” (trading posts) would be established to allow them to do so, so that they did not trade with anyone else.

As the Supreme Court of Canada noted in the 1985 case of Simon v. the Queen,

The Treaty was entered into for the benefit of both the British Crown and the Micmac (sic) people, to maintain peace and order as well as to recognize and confirm the existing hunting and fishing rights of the Micmac … The Treaty, by providing that the Micmac should not be hindered from but should have free liberty of hunting and fishing as usual, constitutes a positive source of protection against infringements on hunting rights … Article 4 of the Treaty appears to contemplate hunting for commercial purposes when it refers to the construction of a truck house as a place of exchange and mentions the liberty of the Micmac to bring game for sale.¹⁴

As well, the Court stated, “None of the Maritime treaties of the eighteenth century cedes land … The treaty was an exchange of solemn promises between the Micmacs and the King’s representative entered into to achieve and guarantee peace. It is an enforceable obligation between the Indians and the white man.”¹⁵

Thus, logic dictates that the terms of the treaties prevent the Crown from regulating the hunting, fishing, trapping and gathering of the Wabanaki, as such regulation would “hinder” their freedom to hunt, fish, trap and gather “as usual.” Only the Wabanaki have the authority to regulate the hunting, fishing, trapping and gathering of Wabanaki people. Indeed, the Treaty of 1752 says that the Wabanaki can sell anything that they have to dispose of to the British at truckhouses or, until truckhouses are built, at Halifax or any other settlement “where they shall have liberty to dispose thereof to the best Advantage.”

A way forward: Fisheries comanagement

The Wabanaki could simply rely on the terms of the Peace and Friendship Treaties and insist that, since their right to fish as they always had, unhindered by the Crown, is primary, the non-Indigenous commercial fishery must accommodate the Indigenous treaty fishery, not the other way around. The treaty texts (including the English texts) suggest that this is a perfectly valid argument. Furthermore, the history of Indigenous fishery litigation in the United States Pacific Northwest presents an interesting parallel suggesting that such an argument might be worth making in seeking a negotiated solution.

In February 1974, Federal District Judge George Boldt decided a legal challenge by the U.S. federal government against the state of Washington designed to protect the treaty fishing rights of the First Nations that fished in Puget Sound. Judge Boldt decided that the treaty provisions authorizing the First Nations to fish “in common with the citizens of the (Washington) territory” meant that the First Nations had the right to catch half of the harvestable salmon and steelhead trout in their traditional fishing grounds beyond their reserves and that the treaties guaranteed the protection of the salmon’s habitat from destruction.¹⁶

Washington state challenged the decision all the way to the U.S. Supreme Court, but in 1979 the Supreme Court upheld Judge Boldt’s decision, with its interpretation of the 1853 Stevens Treaty that gave the First Nations significant control over their traditional fishery grounds.¹⁷ This decision led the First Nations of the Pacific Northwest to establish the Northwest Indian Fisheries Commission to regulate the treaty fishery in an orderly way and act as the voice for the Northwest First Nations in fisheries management and conservation matters.

Ultimately, this Commission led to the establishment of fisheries comanagement, first through Fishery Advisory Boards and finally, in 1983, through the establishment of a formal fisheries comanagement regime between the state government and the First Nations. In establishing such a regime, the state government acknowledged the First Nations’ right and capacity to regulate their fishery.¹⁸

In Atlantic Canada, to retain the amity that is at the heart of the Peace and Friendship Treaty relationship and avoid conflict, the treaty parties need to recognize that they have an obligation to consult with each other. Consultation should be required for any activities that each party wishes to undertake that could harm the other or that, if undertaken by both parties in an uncoordinated way, could harm the land, water or air (along with beings that are part of the land, water or air). In this way, the parties would come to shared regulatory decisions.

For the Wabanaki Nations, the U.S. v. Washington decision could be a useful example supporting insistence that the federal government create a fisheries comanagement regime, if Ottawa persists in engaging in an unproductive dispute. Wouldn’t it be better, though, for the federal government to simply emulate fisheries management in Washington state in the aftermath of U.S. v. Washington and establish a genuine comanagement regime through negotiation?

This would certainly be the approach most consistent with the federal Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples. Litigation guideline #3 in this directive states,

Litigation is by its nature an adversarial process, and cannot be the primary forum for broad reconciliation and the renewal of the Crown-Indigenous relationship. One of the goals of reconciliation in legal matters is to make conflict and litigation the exception, by promoting respectful and meaningful dialogue outside of the courts … Working with the client and other departmental counsel, counsel must develop a coordinated approach with the aim of achieving a resolution that avoids litigation.¹⁹

According to litigation guideline #4, “Counsel’s primary goal must be to resolve the issues, using the court process as a last resort and in the narrowest way possible … Counsel must work with client departments and agencies to develop problem-solving approaches that promote reconciliation. These approaches should include alternative dispute resolution processes such as negotiations and mediations.”²⁰

In regulating the use of the fruits of their territory, the Wabanaki may well have a duty to consult with the officials of the Crown, as do the officials of the Crown with the Wabanaki, and negotiate agreements on how the two parties will fairly and sustainably share the fruits of Wabanaki territory to abide by the relationship of peace and friendship that was at the root of the Peace and Friendship Treaties.

This approach would also be consistent with how the Wabanaki traditionally made decisions about how the fruits of the lands, waters and air of Wabanaki territories were to be used. Traditionally, Wabanaki clans were assigned hunting territories by the grand council, consisting of the Grand Chief, village Chiefs, Elders and Clan Mothers (or in some cases, by village Chiefs, Elders and Clan Mothers after discussion). Regardless of which group made an individual decision, it was always emphasized that conservation of resources such as game, fish, medicines and wildlife in general had to be considered. This was “Seventh Generation Thinking” or, in Wolastoqey, “‘Ciw Weckuwapasihtit.” This traditional process of managing resource use would be a valuable guide to modern sustainable resource management processes.

The best approach to managing the Atlantic fishery would be for the Mi’kmaq and Wolastoqiyik to negotiate a joint process for determining catch limits and seasons with the federal government. In this way, overfishing as a consequence of uncoordinated regulation of the East Coast fishery could be avoided. Such a joint process will require the Mi’kmaq and Wolastoqiyik to have the resources necessary to allow them to contribute to the comanagement process based on evidence about sustainable harvesting levels, for example.

From existing Canadian jurisprudence on the Crown’s duty to consult and accommodate Indigenous interests, we know that a party’s duty to consult another party does not give that other party a right of veto over the consulting party’s chosen course of action. Nor does the treaty relationship give the federal government a right to veto the Mi’kmaq and Wolastoqey governments’ decisions about managing the Mi’kmaq and Wolastoqey fishery. It certainly does not give them the power to impose licensing regimes, seasonal restrictions and “moderate livelihood” catch limits on Mi’kmaq or Wolastoqi fishers. Thus, DFO’s current attempts to restrict the Mi’kmaq and Wolastoqey lobster fishery are, simply, inconsistent with the terms of the Peace and Friendship Treaties, which are – let us not forget – part of the Constitution of Canada.

Ian Peach is a constitutional law and public policy scholar who has worked as a policy adviser and negotiator in federal, provincial and territorial governments across Canada. David Perley is cofounder of the Wolastoq Lanquage and Culture Center, Tobique First Nation, New Brunswick.

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