Aboriginal title: What it means for Elsipogtog First Nation

Elsipogtog First Nation took a step toward self-determination on Thursday, according to the federal Crown-Indigenous relations minister.

Carolyn Bennett was in the eastern New Brunswick community to sign a memorandum of understanding between Ottawa and the First Nation that will launch discussions about the Mi'kmaq claim of Aboriginal title to a third of New Brunswick.

The move comes three years after Elsipogtog filed a claim for Aboriginal title to a part of the province the Mi'kmaq call Sikniktuk.

There's a lot of history here — history that dates back 500 years — so let's touch on some key points.

What is the Mi'kmaq Nation?

The Mi'kmaq Nation is an Indigenous group that lived in the region long before European settlers arrived in the mid-1500s. It's comprised of several communities, including Elsipogtog First Nation, about 90 kilometres north of Moncton.

What is Mi'kma'ki?

Traditionally, Mi'kma'ki is a geographic region split into seven districts throughout Nova Scotia, Prince Edward Island, eastern New Brunswick and the Gaspé Peninsula of Quebec. An eighth district that covers all of Newfoundland was later introduced in the 1800s.

What is Sikniktuk?

Sikniktuk is one of the Mi'kma'ki districts, and it is the area at the centre of the Aboriginal title claim. The district covers about a third of New Brunswick — the southeastern corner — and stretches across the Nova Scotia border.

What is Aboriginal title?

Elsipogtog's case is not about land claims, which First Nations have made across the country. It's an assertion of Aboriginal title, or the right to use and benefit from ancestral land and have more say regarding the management of the land, resources and fisheries.

A landmark Supreme Court case in 2014 involving the Tsilhqot'in First Nation in British Columbia defined what Aboriginal title means. The court ruled title includes the right to the benefits associated with the land and the right to use it, enjoy it and profit from it.

But the court also declared that economic development can still proceed on the land if one of two conditions is met: the development has the consent of the First Nation or the government must explain why the development is pressing and meet its fiduciary duty to the Indigenous group.

The Mi'kmaq case differs from the B.C. case because the latter only dealt with Crown land. That's not the case in Sikniktuk.

The statement of claim filed by Elsipogtog First Nation in 2016 said representatives of the Mi'kmaq Nation entered into a treaty with the British Crown in 1761 that recognized the existence of Aboriginal title.

"Aboriginal title to the Claim Area has never been surrendered or lawfully extinguished," the court document stated.

So, what's a land claim case?

In short, land claim cases are land-related disputes between government and Indigenous groups that can be resolved through a few different avenues, depending on the type of claim.

Disputes where the land in question does not fall under a historic signed treaty — also called comprehensive land claims — can be resolved through negotiated agreements called modern treaties. The negotiation framework is outlined in the Comprehensive Land Claims policy.

Since 1975, 25 modern treaties have been signed.

The settlement often gives the Indigenous group some land ownership, cash and/or some form of self-governance, but the group will no longer be able to assert its title rights on the traditional territory.

Many Indigenous activists are critical of the framework, describing it as the "termination tables."

Bruce McIvor, the lawyer representing Elsipogtog in its Aboriginal title case, said his client wants to implement title rights, not "substitute" them, and, as such, are not pursuing a land claim.

What's in the statement of claim?

The 17-page statement of claim describes the claim area, Sikniktuk, the history behind the Aboriginal title and rights, and the alleged wrongful conduct of the defendants.

The document lists New Brunswick and Canada as defendants. It alleges the defendants breached the treaty through the management and allocation of land, waters and resources while ignoring Aboriginal title and rights as well as failing to consult the Mi'kmaq people.

According to the document, Elsipogtog wants, among other things, a declaration that Mi'kmaq Nation holds Aborginal title and rights in respect to Sikniktuk; damages and compensation; and an injunction that prohibits future land use without consent.

Why was the claim filed?

Elsipogtog members have said the title claim was filed on behalf of all Mi'kmaq people in New Brunswick and was motivated by fears of shale gas exploration clashes like the one that ensued between protesters and police in Rexton, near Elsipogtog, in October 2013. More than 40 people were arrested during the protests.

"We as a people decided 'no,'" Chief Arren Sock said on Thursday.

"That's when we said that's enough. We're Mi'kmaq. We're a people. This our late nation. This is our land, and we decide what happens to it."

The fight for agency began long before the 2013 protests, however, and the history is complex. The 2017 CBC News feature "A Mi'kmaq seat at the table" explores the issue in depth.

What about the memorandum of understanding?

The MOU signed Thursday is about implementing the rights that are protected in Section 35 of the Constitution Act, Bennett said. Section 35 affirms existing Aboriginal and treaty rights and defines Aboriginal peoples in Canada.

Bennett said it's a waste of time and money to go through the court system.

A collaborative approach can help avoid confrontation, and proposed development projects can be redrawn with the Mi'kmaq representatives at the table, she said.

Elsipogtog and the government will now explore entering into negotiations for the recognition of Mi'kmaq title, rights and treaty rights, and the protection and management of the environment and natural resources in Sikniktuk.