Supreme Court ruling could help Indigenous people on Maine border

A Supreme Court of Canada ruling extending Aboriginal rights to some non-Canadian Indigenous people could have wide-ranging implications for the Peskotomuhkati living on both sides of the Maine-New Brunswick border.

The decision says that U.S.-born Indigenous people with historical connections to territory now in Canada have rights under the Canadian Constitution.

"My people are already affected by everything around this ruling, so I'm hoping that this ruling actually helps us to basically reinforce what we've been saying all along: how we are one people, one nation," said Chief Hugh Akagi of the Peskotomuhkati, also known as the Passamaquoddy Nation.

Their traditional territory straddled the St. Croix River, which forms part of the border between New Brunswick and Maine.

"Yes, we're divided by territory, a boundary, a border and a river, but the truth is we've been saying to the world that we've always been one people," Akagi said.

Last week, the top court ruled that an American member of the Sinixt Nation had a right to hunt in British Columbia because his people's traditional territory included parts of B.C. before the drawing of the Canada-U.S. border.

"Persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right" under the Constitution, the court said, if they are "modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact."

Case involved U.S. hunter

The B.C. case involved Richard Desautel, an American citizen who killed an elk without a hunting licence in October 2010.

The court ruled 7-2 that Section 35 of the Constitution, which recognizes the rights of "Aboriginal peoples of Canada," extended to Desautel. 

It marks the first time the country's top court has interpreted the meaning of the phrase "of Canada" in Section 35. 

Desautel lives on a reserve in Washington state and is a member of the Lakes Tribe of the Colville Confederated Tribes, considered a successor group to the Sinixt, whose territory included the part of present-day B.C. where he was hunting.

The court said hunting was a continual part of a traditional practice that existed before European colonization and before the Canada-U.S. border was drawn there in 1842.

"An interpretation of 'Aboriginal peoples of Canada' ... that includes Aboriginal peoples who were here when the Europeans arrived and later moved or were forced to move elsewhere, or on whom international boundaries were imposed, reflects the purpose of reconciliation."

The ruling has also caught the attention of a Wolastoqey community just across the Canada-U.S. border from Woodstock, N.B.

"I can see this being something that people would be interested in," said Clarissa Sabattis, chief of the Houlton Band of Maliseet Indians. "It will definitely open some things up for some of our tribal citizens who do hunt." 

The Peskotomuhkati have been trying for more than a decade to negotiate a comprehensive land claim agreement with Ottawa and for recognition as a First Nation under the Indian Act.

That would allow for the delivery of federally funded services on the Canadian side of the border.

It is a complex negotiation in part because reserves on the Canadian side were eliminated by the Crown, while two reservations exist on the U.S. side.

Lawyer Paul Williams, who is negotiating for the Peskotomuhkati, said the Supreme Court decision could clarify that the nation is a single cross-border entity. 

'A template'

Akagi said the ruling won't change much in terms of moose hunting because an agreement on moose was reached with the New Brunswick government three years ago.

But it could clear the way for other, more complex issues to be resolved.

The moose hunting agreement allows members from the Maine side to hunt in the province and bring the moose back to the U.S. side under carefully managed conservation rules.

"To us, it's a template," Akagi said. "It's an experiment, and I like to think the experiment worked." 

That paved the way for a deal on freshwater fishing, but an agreement on lobster fishing, where large-scale commercial interests are involved, would be more complicated to negotiate, he said.

"It's a bit dangerous," he said, referring to tensions over Indigenous fishing rights in other parts of the Maritimes. He hopes individual members of the nation from the Maine side won't start fishing on their own without heeding Peskotomuhkati leaders.

But he said last week's ruling reinforces the nation's position in any future discussions.

No one from the provincial Department of Natural Resources and Energy Development or the Office of the Attorney-General responded to a CBC request for comment on the Supreme Court ruling.