Citation: Queen v. Drew et al, 2003NLSCTD105  
Date: 20030717  
Docket: 199601T1022; 199601T1024; 199601T1025; 199601T1026;  
1996 01T1027; 199601T1028  
1996 St. J. No. 1022  
IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR  
TRIAL DIVISION  
BETWEEN:  
HER MAJESTY THE QUEEN IN RIGHT OF  
NEWFOUNDLAND, as represented by the Minister  
of Government Services and Lands  
PLAINTIFF  
AND:  
AND:  
KEN DREW  
DEFENDANT  
ABITIBI-CONSOLIDATED INC. and ABITIBI-  
CONSOLIDATED COMPANY OF CANADA  
INTERVENERS  
INTERVENER  
AND:  
CORNER BROOK PULP AND PAPER LIMITED  
AND  
1996 St. J. No. 1024  
BETWEEN:  
HER MAJESTY THE QUEEN IN RIGHT OF  
NEWFOUNDLAND, as represented by the Minister  
of Government Services and Lands  
PLAINTIFF  
AND:  
AND:  
WILFRED JOHN  
DEFENDANT  
ABITIBI-CONSOLIDATED INC. and ABITIBI-  
CONSOLIDATED COMPANY OF CANADA  
INTERVENERS  
INTERVENER  
AND:  
CORNER BROOK PULP AND PAPER LIMITED  
AND  
1996 St. J. No. 1025  
BETWEEN:  
HER MAJESTY THE QUEEN IN RIGHT OF  
NEWFOUNDLAND, as represented by the Minister  
of Government Services and Lands  
PLAINTIFF  
Page: 2  
AND:  
AND:  
LARRY JOHN  
DEFENDANT  
ABITIBI-CONSOLIDATED and ABITIBI-  
CONSOLIDATED COMPANY OF CANADA  
INTERVENERS  
INTERVENER  
AND:  
CORNER BROOK PULP AND PAPER LIMITED  
AND  
1996 St. J. No. 1026  
BETWEEN:  
HER MAJESTY THE QUEEN IN RIGHT OF  
NEWFOUNDLAND, as represented by the Minister  
of Government Services and Lands  
PLAINTIFF  
AND:  
AND:  
LARRY JOHN  
DEFENDANT  
ABITIBI-CONSOLIDATED INC. and ABITIBI-  
CONSOLIDATED COMPANY OF CANADA  
INTERVENERS  
INTERVENER  
AND:  
CORNER BROOK PULP AND PAPER LIMITED  
AND  
1996 St. J. No. 1027  
BETWEEN:  
HER MAJESTY THE QUEEN IN RIGHT OF  
NEWFOUNDLAND, as represented by the Minister  
of Government Services and Lands  
PLAINTIFF  
AND:  
AND:  
RALPH JOHN  
DEFENDANT  
ABITIBI-CONSOLIDATED INC. and ABITIBI-  
CONSOLIDATED COMPANY OF CANADA  
INTERVENERS  
INTERVENER  
AND:  
CORNER BROOK PULP AND PAPER LIMITED  
AND  
1996 St. J. No. 1028  
BETWEEN:  
HER MAJESTY THE QUEEN IN RIGHT OF  
Page: 3  
NEWFOUNDLAND, as represented by the Minister  
of Government Services and Lands  
PLAINTIFF  
AND:  
AND:  
WILFRED DREW  
DEFENDANT  
ABITIBI-CONSOLIDATED INC. and ABITIBI-  
CONSOLIDATED COMPANY OF CANADA  
INTERVENERS  
INTERVENER  
AND:  
CORNER BROOK PULP AND PAPER LIMITED  
Before: The Honourable Mr. Justice L.D. Barry  
Place of Hearing:  
Heard:  
St. John’s, Newfoundland and Labrador  
January 31, 2000 to December 2, 2002  
(Aboriginal hunting and treaty rights - Whether Mi’kmaq of  
Conne River entitled to retain hunting cabins in Bay du Nord  
Wilderness Reserve - Whether Mi’kmaq of Conne River on Island  
of Newfoundland before European contact - Whether Mi’kmaq of  
Conne River on Island of Newfoundland before European  
sovereignty established -Whether Mi’kmaq on Island of  
Newfoundland entitled to claim rights under treaties made in  
Nova Scotia -Whether any aboriginal hunting rights extinguished)  
Held:  
The Defendants do not enjoy aboriginal or treaty rights to fish, hunt, or trap  
in the Bay du Nord Wilderness Area and have no incidental right to retain  
hunting cabins in the Area, for the following reasons:  
1.  
The ancestors of the Mi’kmaq of Conne River arrived on the Island of  
Newfoundland some time after 1550 A.D., by which time European  
contact and influences prevented their fishing, hunting and trapping  
practices from attaining the status of aboriginal rights.  
Page: 4  
2.  
3.  
Even if the Mi’kmaq ancestors were present on the Island of  
Newfoundland before European contact, the Defendants have not  
proven on a balance of probabilities that they then fished, hunted or  
trapped in the territory now known as the Bay du Nord Wilderness  
Area.  
The 1725 treaty ratified at Annapolis Royal in 1726 by Mi’kmaq  
representatives by its express terms did not apply to Newfoundland, it  
should in any event be interpreted as restricted to territory within the  
jurisdiction of the Governor of Nova Scotia, and in any event it was  
terminated by subsequent hostilities between the Mi’kmaq and the  
British.  
4.  
The 1752 treaty signed by the Governor of Nova Scotia and the Chief  
of the Shubenacadie Mi’kmaq Band applied only to the territory of  
that Band and not to Newfoundland and in any event was terminated  
by subsequent hostilities.  
5.  
6.  
The Defendants have not established that the 1759 Schomberg -  
Whitmore treaty involved anything more than an oath of allegiance by  
the Mi’kmaq to the British Crown.  
The Defendants have not established the Halifax Treaty of June 25,  
1761, signed by the Chief of the Cape Breton Mi’kmaq Band and the  
Lieutenant-Governor of Nova Scotia, applies to Newfoundland since  
the express terms of a treaty probably similar to the missing Cape  
Breton document confines its application to Nova Scotia, it should in  
any event be interpreted as restricted to territory within the  
jurisdiction of the Governor of Nova Scotia, and in any event it would  
not apply to territory on the Island of Newfoundland where Cape  
Breton Mi’kmaq only infrequently fished, hunted and trapped up until  
1761.  
7.  
8.  
The renewal of a treaty with Cape Breton Mi’kmaq by Captain  
Thompson aboard the Lark in September, 1763 was a renewal of the  
oath of allegiance to General Whitmore and did not involve rights to  
fish, hunt or trap.  
In light of the above conclusions, the Court need not determine  
whether legislation in the Colony of Newfoundland before  
Confederation with Canada in 1949 extinguished aboriginal rights.  
But the trial judge questioned whether legislation could demonstrate a  
clear and plain intention to so extinguish, when the evidence is that no  
Page: 5  
government in Newfoundland ever considered the Mi’kmaq to have  
aboriginal rights in Newfoundland.  
Appearances:  
Donald Burrage, Q.C.  
Edward Hearn, Q.C.  
Deborah Paquette  
Counsel for Her Majesty the Queen.  
Counsel for the Defendants.  
Robert M. Matthews  
Shane G. McDonald  
James Thistle, Q.C.  
Colm St. R. Seviour  
Counsel for the Intervenor Corner Brook  
Pulp & Paper Limited.  
Counsel for the Intervenors Abitibi-  
Consolidated Inc. and Abitibi-Consolidated  
Company of Canada.  
REASONS FOR JUDGMENT  
Barry, J.:  
TABLE OF CONTENTS  
I. THE PARTIES AND THEIR CLAIMS  
Page  
1.  
2.  
3.  
The Defendants  
12 - 14  
14  
The aboriginal rights claimed  
Summary of the Defendants’ position on  
aboriginal rights  
The treaty rights claimed  
Summary of the Province’s position  
The Intervenors’ position  
14 - 17  
18 - 19  
19 - 29  
29  
4.  
5.  
6.  
Page: 6  
Page  
30  
II.  
THE ISSUES  
1.  
2.  
3.  
Does each Defendant enjoy an aboriginal right  
to hunt, fish or trap in the Bay du Nord  
Wilderness Reserve?  
Does each Defendant enjoy a treaty right to  
hunt, fish or trap in the Bay du Nord  
Wilderness Reserve?  
If aboriginal rights existed, have they  
been extinguished by legislation of the  
Newfoundland government?  
III. HISTORICAL EVIDENCE - ABORIGINAL RIGHTS  
A.  
The Defendants’ View of the Evidence on  
Aboriginal Rights  
1.  
2.  
3.  
4.  
5.  
The East Country  
The Mi’kmaq  
30 - 35  
35 - 36  
36 - 40  
41 - 45  
Native peoples of Newfoundland  
The Protohistoric/Early Historic Period  
Mi’kmaq and French in Newfoundland  
(1662 - 1714)  
British activity and references to native  
peoples (1714 - 1763)  
45 - 55  
55 - 76  
6.  
B.  
The Province’s View of the Evidence on  
Aboriginal Rights  
1.  
The Contact period  
(a) Anthropological insights  
(b) Initial contact  
(c) The Mi’kmaq prior to contact  
(d) The consequences of contact  
76 - 79  
79 - 83  
83 - 86  
86 - 91  
2.  
Oral history and traditions  
(a) Mi’kmaq oral histories  
(b) Mi’kmaq oral traditions  
(c) The Klu’skap stories  
(d) Other traditions  
91 - 92  
92 - 93  
93 - 95  
95 - 97  
97 - 98  
Page: 7  
3.  
The archaeological evidence  
(a) The role of archaeology  
98 - 100  
100 - 105  
105 - 106  
106 - 108  
109 - 113  
(b) The theoretical quagmire  
(c) The direct historical approach  
(d) The archaeology of Nova Scotia  
(e) The archaeology of Newfoundland  
4.  
5.  
The protohistoric evidence  
(a) The French notarial records  
(b) The French fishery in Newfoundland  
(c) The development of the fur trade  
114 - 115  
115 - 118  
118 - 127  
Evidence of the 17th and 18th centuries  
(a) Introduction  
(b) The silent sources  
127 - 128  
128 - 133  
(c) Rumours of a fur trade  
in Newfoundland  
(d) The struggle for North America  
(e) The French lose Plaisance  
134 - 141  
141 - 148  
148 - 158  
6.  
Province’s critique of Defendants’  
historical Submission  
(a) Introduction  
158 - 159  
159 - 164  
(b) The Witte Leeuw - 1606  
(c) Passage from R. Douglas Francis,  
Origins  
(d) Fur trade “In the Region”  
(e) Nicolas Denys  
164 - 165  
165 - 170  
170 - 172  
172 - 175  
175 - 177  
(f) Bartholomew Gosnold, 1602  
(g) Champlain  
(h) October 25, 1694, Report of  
de Brouillan  
177 - 178  
(i)  
March 22, 1703, Report of  
Durand de la Garenne  
Pierre de Neufville  
179  
180 - 182  
182 - 183  
183 - 185  
185 - 186  
(j)  
(k) Mi’kmaq Chiefs Poboneskou and Michau  
(l) Establishment of Placentia  
(m) October 22,1705, Subercase Report  
Page: 8  
(n) John Thomas  
(o) John Aylred  
186 - 189  
189 - 193  
7.  
Province’s view of the emergence of  
Conne River  
193 - 211  
C.  
The Court’s Findings of Fact on Aboriginal Rights  
1.  
First users of the Bay du Nord  
Wilderness area  
211 - 212  
212  
212 - 213  
213  
2.  
3.  
4.  
5.  
Practice integral to the culture  
Use of European technology  
The geographic range of pre-contact activity  
Mi’kmaq arrival on the Island of Newfoundland  
(a) First evidence of Mi’kmaq on  
Island of Newfoundland  
213  
213 - 214  
214  
(b) Contact at Cape Breton  
(c) The travel account of Crignon  
(d) Mi’kmaq place names on maps  
(e) Cartier’s contact  
214  
215  
215  
(f) Report of Jean Alfonse de Saintonge  
(g) The archaeological record  
(h) The French notarial records  
215  
215- 216  
216- 217  
217- 218  
(i)  
(j)  
The silent sources  
The accounts of John Matthews,  
John Downey and John Thomas  
218  
218 - 219  
219 - 221  
221 - 223  
(k) The Placentia records  
(l) The British record of the Mi’kmaq arrival  
(m) The Rotational Foraging Model  
IV. THE LAW AND ANALYSIS - ABORIGINAL RIGHTS  
1.  
2.  
3.  
Introduction  
The test for aboriginal rights  
The evidentiary burden  
223 - 227  
227 - 228  
228 - 239  
Page  
4.  
Contact, occupation and sovereignty  
(i)  
Mi’kmaq activity before  
European occupation  
239 - 246  
Page: 9  
(ii) Mi’kmaq activity before  
European sovereignty  
246 - 255  
(iii) British sovereignty over  
Southwestern Newfoundland  
(iv) The Supreme Court and contact  
Specific nature of aboriginal rights  
255 - 261  
261 - 268  
5.  
6.  
(i)  
Introduction  
268  
268 - 272  
(ii) Site - and fact-specific  
Integral to the distinctive culture  
(i)  
Introduction  
272  
272 - 277  
277  
277-279  
279- 286  
(ii) Requirements of “distinctiveness”  
(iii) Geographical requirement  
(iv) Continuity requirement  
7.  
Oral history and traditions  
V.  
HISTORICAL EVIDENCE - TREATY RIGHTS  
A.  
The Province’s View of the Evidence on  
Treaty Rights  
1.  
2.  
Introduction  
The Treaty of 1725-26  
(a) Wording and circumstances  
of signing  
287 - 288  
288 - 290  
(b) The parties to the Treaty of 1725-26  
(c) Is the Treaty valid and subsisting?  
(d) Geographic scope of the treaty right  
The Treaty of 1752  
290 - 293  
293 - 298  
298 - 300  
3.  
(a) The Wording  
300 - 302  
302 - 304  
304 - 307  
307 - 308  
308 - 317  
(b) The parties to the Treaty of 1752  
(c) Is the Treaty valid and subsisting?  
(d) Geographic scope of the treaty right  
The Schomberg - Whitmore Treaty of 1759  
The Treaty of June 25, 1761  
4.  
5.  
(a) Wording and circumstances of signing  
317 - 324  
Page  
(b) The parties to the Treaty of 1752  
(c) Is the Treaty valid and subsisting?  
324 - 325  
325  
Page: 10  
(d) Geographic scope of the treaty right  
(e) The effect of Captain Thompson’s  
“Renewal”  
325 - 352  
352 - 356  
356 - 363  
(f) Nature of the treaty right  
B.  
The Defendants’ View of the Evidence on  
Treaty Rights  
1.  
2.  
3.  
4.  
5.  
6.  
7.  
British - Mi’kmaq treaties  
The Context of the treaties  
364 - 368  
369 - 382  
382 - 385  
385 - 388  
388 -395  
395 - 402  
The Schomberg-Whitmore Treaty  
Hunting and gathering as religion  
Mc’kmaq in Newfoundland before 1761  
The Lark Treaty  
The Conne River Band as a modern  
manifestation of the 1759, 1762 and  
1763 treaty signatories  
402 - 407  
VI. FINDINGS OF FACT, THE LAW AND ANALYSIS - TREATY RIGHTS  
1.  
2
3.  
Introduction  
Principles of treaty interpretation  
The Treaty of 1725-26  
407 - 408  
408 - 422  
(a) The parties to the treaty  
(b) Subsequent hostilities  
(c) Geographic scope  
422 - 423  
423 - 424  
424  
4.  
The Treaty of 1752  
(a) The parties to the treaty  
(b) Is the treaty valid and subsisting?  
The Whitmore Treaty of 1759  
The Treaty of 1761  
424 - 425  
425  
425 - 429  
5.  
6.  
(a) The parties to the treaty  
(b) The geographic extent of the treaty  
(c) Subsequent conduct of the parties  
429 - 430  
430 - 432  
433 - 434  
Page  
•
The absence of truckhouses  
and the issuance of licences  
Page: 11  
•
•
Chief Jeannot’s passport  
Reaction of Governors Groves  
and Palliser  
•
Reaction in London  
7.  
8.  
9.  
The effect of Captain Thompson’s “Renewal”  
The nature of any 1761 treaty right  
Religion as a treaty right  
434 - 435  
435 - 438  
438  
VII. EXTINGUISHMENT  
1.  
2.  
3.  
4.  
Introduction  
438  
438- 441  
441- 444  
The extinguishment test  
Power of Extinguishment  
Alleged acts of extinguishment  
(a) Colonial legislation  
(b) Control over lands  
(c) The forestry legislation  
(d) Nature of Interveners’ titles  
Analysis - Extinguishment  
444- 445  
445- 447  
447  
447- 463  
463- 465  
5.  
VIII. SUMMARY AND DISPOSITION  
A.  
B.  
C.  
D.  
Aboriginal Rights  
Treaty Rights  
Extinguishment  
Disposition  
465  
465-466  
466  
466  
1.  
THE PARTIES AND THEIR CLAIMS*  
1. The Defendants  
Page: 12  
[1] Although affectionately known as “the Rock”, the Island of Newfoundland  
does have areas with an abundance of natural resources. One of these is Conne  
River, a Mi’kmaq reserve in Bay d’Espoir on the south coast of the Island. Nestled  
by the salmon river of the same name, Conne River is today a vibrant and thriving  
community, with residents involved in many occupations, including, fish farming,  
saw milling, tree farming, commercial outfitting, Internet distribution, lobster  
fishing, housing development, hunting, and fur trapping. A dispute with the  
Province over the right to have hunting cabins in a wilderness reserve raises issues  
concerning whether the Mi’kmaq of Conne River have aboriginal hunting rights  
based on an alleged presence on the Island before European contact or,  
alternatively, before British sovereignty, and whether they may claim treaty rights  
based upon treaties entered into by the British in the 18th century with Mi’kmaq of  
Nova Scotia. The Intervenors, paper companies with forest rights from the  
Province, submit any aboriginal rights were extinguished by legislation before  
Newfoundland joined Canada in 1949.  
[2] This action was commenced with a request by the Province under Section  
30(b) of the Lands Act, S.N.L. 1991, c.36, for an order that the Defendants be  
found wrongfully in possession of Crown Lands and that their cabins be removed  
from the Bay du Nord Wilderness Area, comprising some 2895 square kilometres  
north and east of Conne River.  
[3] The Defendants’ grounds for requesting that the cabin removal notices be  
vacated are as follows:  
*To expedite a decision involving voluminous records and transcripts and to capture the rich historical  
material presented, I have borrowed freely from the electronic copies of submissions generously provided  
by all parties. [Citation key: CD = Court Document; ED = Ethnography Document.]  
(a) The Defendants are aboriginal people of Canada, of Mi’kmaq  
ancestry, members of the Miawpukek First Nation, residing on an  
Indian Reserve at Conne River and “Indians” by virtue of the  
provisions of the Indian Act, R.S.C. 1985, c. I-5.  
Page: 13  
(b) The Bay du Nord Wilderness Area consists of territory upon which  
the Mi’kmaq have long relied for subsistence and as an important fur-  
trapping area.  
(c) Cabins in the Bay du Nord Wilderness Area are necessary for the  
exercise of the claimed rights to fish, hunt and trap in this traditional  
territory.  
(d) These activities are protected aboriginal and treaty rights of the  
Mi’kmaq.  
[4] The trial consisted of 47 days of testimony, followed by oral submissions.  
The case generated approximately 150,000 pages of historical material,  
encompassing some 2,000 primary holograph documents which were either  
transcribed from English or translated from French, Basque, Portuguese, or Dutch.  
In addition, parties filed over 1,000 secondary documents, 33 maps and 11 expert  
reports.  
[5] The Plaintiffs presented seven expert witnesses: historians Dr. Frederick  
Thorpe, Dr. Stephen Patterson, Dr. Olaf Janzen and Dr. Laurier Turgeon;  
archaeologists David Christianson and Martha Drake; and anthropologist Dr.  
Alexander von Gernet.  
[6] The Defendants presented as witnesses one of the Defendants, Ken Drew,  
Saqamaw (Chief) Mi’sel Joe, two Elders, John Nicholas Jeddore and Aloysius  
Benoit, and five expert witnesses: Dr. Harold Prins, an anthropologist; Helen  
Keeleyside and Gerald Penney, archaeologists; and Robert Cuff and Dr. William  
Wicken, historians.  
[7] The documentary evidence produced included correspondence, travelers’  
accounts, and the reports of officials dating back several centuries, as well as  
academic studies, expert opinion reports and supporting documents. Archival  
research for this case produced certain material, such as notarial records from  
French ports relating to early European voyages to North America, which provide  
information not previously referred to by North American historians or  
anthropologists.  
2.  
The aboriginal rights claimed  
Page: 14  
[8] Each Defendant claims an aboriginal right to fish, hunt and trap over an area  
which is much greater than the Wilderness Reserve. In fact, the geographic scope  
of the area over which aboriginal rights are claimed is actually 21,887 square  
kilometres, or 21% of the Island of Newfoundland. It includes both the Wilderness  
Reserve and the Middle Ridge Wildlife Reserve and embraces land to the east and  
west of the Bay d’Espoir Highway, referred to in the defence evidence as the “East  
and West Country” respectively.  
[9] The Defendants assert that their aboriginal rights, as claimed, enjoy  
constitutional protection by virtue of section 35(1) of the Constitution Act, 1982,  
which provides that “the existing aboriginal and treaty rights of the aboriginal  
peoples of Canada are hereby recognized and affirmed”.  
3.  
Summary of the Defendants’ position on aboriginal rights  
[10] The Defendants’ position on their aboriginal rights claims may be  
summarized as follows:  
(a) This case turns to a large extent on interpretation of the historical  
record. Crucial to this is the issue of how this Court should use  
scattered historical references to fill gaps in the record.  
(b) The Defendants point to evidence of what they refer to as the absence  
of European civil or religious authority until the early 18th century on  
the south coast of Newfoundland west of Placentia, even during the  
summer fishing season, and the near-absence of military authority.  
This is the context, they say, in which the scarcity of documentary  
records should be viewed.  
(c) The Defendants point to references between 1529 and 1680 to the  
presence of Indians, of unknown ethnicity, along the coast of  
Newfoundland, who could have been Mi’kmaq, and specific  
references to Mi’kmaq presence between 1695 and 1730, and contend  
that proper extrapolation and reasonable inference requires this Court  
to conclude that Mi’kmaq were probably on the Island of  
Newfoundland, in the territory now known as the Bay du Nord  
Wilderness Area, before European contact. The main references to  
the presence of aboriginals are set out in the next two sections.  
(d) The Defendants refer to the following evidence of the presence of  
aboriginals along the coast of Newfoundland, who they submit could  
have been Mi’kmaq:  
Page: 15  
•
Crignon reported in 15391, based on Jean Parmentier’s voyage  
of 1529, that “Between Capo di Ras and Capo de Bretton live a  
cruel and austere people...” .  
•
•
In 1536 Richard Hore travelled to Newfoundland and Cape  
Breton and recorded “a boate with savages of those partes”.2  
In 1542-4 Alfonse de Saintonge recorded that “Cape Breton  
[mic-mac] make war against those from Newfoundland when  
they go fishing”.3  
•
•
In 1602 Gosnold encountered Mi’kmaq in a shallop sailing off  
the coast of Maine who could name Placentia.4  
In 1610 Lescarbot stated that “the people who are at Port Royal,  
and in the adjacent countries extending toward Newfoundland,  
are called Souriquois and have a language of their own”.5  
In 1616, Fr. Biard referred to “savages...from Newfoundland to  
Chouacoet”.6  
•
•
•
In 1687 a Placentia census referred to three “sauvages”.7  
In 1670 John Matthews reported that in 1662 he had been sent  
to St. Mary’s “to bring one Mr. Russell ye Inhabitant & the  
masters of the Indians (who came to kill Beavers & other beasts  
1
Published in 1556 by Italian scholar Ramusio and included in Bernard G. Hoffman, “Account of a  
Voyage Conducted in 1529 to the New World, Africa, Madagascar, and Sumatra, Translated from the Italian, with  
Notes and Comments”, Ethnohistory, vol. 10. no. 1 (Winter 1963), [CD18].  
2
Richard Hakluyt, Copy of Excerpt of Richard Hore’s Voyage to Newfoundland and Beyond [1589], in  
David B. Quinn, New American World: A Documentary History of North America to 1612 (1979), vol. I, c. 17, pp.  
207-08 (CD 19].  
3 Quoted in Charles Martijn, Historical Review 5.3.3, pp. 4-5, in “Netukleuk” (On the Country):  
Miawpukek Mi’Kamawey Mauri oni Land Claim and Self-Government Submission (1966) [von Gernet  
Supporting Documents, Tab 237].  
4
See the references in Dr. Alexander von Gernet’s Expert Report, p. 97, fn 602.  
5
Thwaites, 1959, The Jesuit Relations, vol. 1, p. 73.  
6
The same, p. 83.  
7
Fernand-D. Thibodeau, Recensement de Terre-Neuve, 1687-1704 [CD 956]. Minister to Parat (1687) [CD  
115].  
Page: 16  
for ffurs)... to answer & give an account of their accons for  
making an attempt upon ye Island”.8  
•
•
In 1676 John Downing reported information from John Aylred  
that “some Canada Indians, from the fort of Canida in french  
Shalloways”9 come to Newfoundland....  
In 1680, John Thomas’ referred to “salvadges”, who were  
enemies of the English and having commence with the  
French.10  
(e) The Defendants also note these records of a specific Mi’kmaq  
presence on the south coast:  
•
In 1695 the Placentia record refers to a court-martial relating to  
the murder of members of the Mi’kmaq Turbis family.11  
In 1705 Governor Subercase of Placentia reported 20 - 30  
Mi’kmaq had crossed from Cape Breton to Newfoundland and  
subsequent reports up to 1708 referred to having them return to  
Cape Breton.12  
•
•
•
In 1720 Lieutenant-Governor Gledhill remarked that “there was  
two open Boats full of Indians seen from the Island of Saint  
Peters but supposed to be Only a Party a hunting from the  
Main”.13  
In 1727 Governor de Brouillan reported on the seizure of a  
Boston vessel by Indians (by agreement probably Mi’kmaq) at  
Port-aux-Basques.14  
8 Memorandum by John Matthews entitled “Concerning the French in Newfoundland”, January  
27, 1670 [CD 83].  
9
John Downing, A brief Narrative Concerning Newfoundland, (1676) [CD 94]  
10  
Letter to Sir Richard from Bay Bulls, September 15, 1680 (Codrington Library, All Souls College,  
Oxford, Wynne Collection, MS 239, ff 229-30v) [Defendants’ Historical Documents, vol. 12, Tab 6]  
11  
“Sentence of court-martial, Plaisance” (1695) [CD 151].  
12  
Subercase to the Minister (1705) [CD 200].  
13  
Calendar of State Papers: Colonial Series 1933, pp. 216-17 [CD 318].  
14  
Gov. de Brouillan to Lt. Gov. Armstrong (1727), Calendar of State Papers, Colonial Series, America and  
West Indies, vol. 35, Doc. No. 789(xiv), p. 402 [CD 338].  
Page: 17  
•
In 1730 de Bourville reported from Louisbourg that he had  
been told “fifteen sauvages from Ile Royale [Cape Breton] have  
been taken prisoner near St. Pierre off Newfoundland, by an  
Englishman living on an island called Desgaules” [most likely  
either Grole or Pass Island, both at the tip of the Hermitage  
Peninsula].15  
(f) As to the time of European contact the Defendants submit this Court  
should not select a particular date, such as 1500 A.D. selected by the  
Province, but, rather, should recognize that there was a transition  
period between 1500 and 1610 when contacts of varying intensities  
were occurring between Europeans and aboriginals on the east coast  
of Canada and in Newfoundland. The Defendants submit reasonable  
evidence exists placing the Mi’kmaq in Newfoundland in the early  
contact period and, in any event, this Court should recognize that  
officialdom confined to eastern Newfoundland probably missed  
altogether a Mi’kmaq presence in both southern and western  
Newfoundland and this explains the scarcity of official references.  
The Defendants submit events recorded in the early contact period are  
sufficient to allow this Court to make reasonable inferences as to a  
Mi’kmaq presence in pre-contact times.  
(g) The Defendants also argue that, in any event, it is sufficient for them  
to establish a Mi’kmaq presence on the Island of Newfoundland  
before Europeans occupied the territory now known as the Bay du  
Nord Wilderness Area or, alternatively, before the British established  
sovereignty over the territory.  
4.  
The treaty rights claimed  
[11] In addition to aboriginal rights, each Defendant also claims treaty rights to  
hunt, fish and trap over an area inclusive of, but not limited to, the area over which  
the Defendants claim aboriginal rights. The outer limit of the claimed treaty  
15  
Copy of letter by Le Coutre de Bourville, Francois to Minister of Marine, December 14, 1730. Archives  
des Colonies. Series C11B, Correspondence Generale, Ile Royale, vol. 11, ff. 42-43 [CD 351].  
Page: 18  
territory is undefined but at a minimum includes roughly 50% of the Island of  
Newfoundland.  
[12] Each Defendant claims to be the beneficiary of four treaties, as follows:  
(a) The 1725 Treaty negotiated at Boston by Paul Mascarene, on behalf  
of Nova Scotia, and subsequently ratified at Annapolis Royal in 1726  
by John Doucett, Lieutenant-Governor of Annapolis, and seventy-  
seven Mi’kmaq, Maliseet and Passamaquoddy representatives.16  
(b) The 1752 Treaty ratified by Governor Peregrine Thomas Hopson and  
Chief Jean Baptiste Cope, on behalf of the Shubenacadie Band of  
Mi’kmaq.17  
(c) The 1759 Schomberg - Whitmore treaty signed at Louisbourg, on  
behalf of the Cape Breton Mi’kmaq Band.18  
(d) The Treaty of June 25, 1761, signed at Belcher’s Farm in Halifax, by  
Chief Jeannot, on behalf of the Cape Breton Mi’kmaq Band, and  
Lieutenant-Governor Belcher and colonial officials, on behalf of Nova  
Scotia.19  
[13] The specific treaty right claimed by the Defendants is the right to fish, hunt,  
and trap for subsistence and to earn what is described as a “moderate livelihood”.  
[14] Each Defendant maintains that his respective cabin in the Bay du Nord  
Wilderness Reserve is necessary for the effective exercise of the aboriginal and  
treaty rights claimed.  
16Treaty of Peace and Friendship, June 4, 1726 (Colonial Office - CO 217/38), ff. 100-102v.  
17Treaty or Articles of Peace and Friendship, November 22, 1752 (CO 217/40), ff. 379-88.  
18  
No copy found but based upon a letter from Lieutenant Schomberg to Abbé Majillard, October 26, 1759  
[Wicken Supporting Documents, vol. 8, Tab 9], Articles of Capitulation accepted by the Mi’kmaq on November 20,  
1759, a diary entry of Jonathan Proctor, a Massachusetts soldier at Louisbourg, and related correspondence..  
19Treaty of Peace and Friendship, June 25, 1761 (CO 217/18), ff. 276-84.  
Page: 19  
5.  
Summary of the Province’s position  
[15] The Province accepts that there are people with Mi’kmaq ancestry, including  
the Defendants, presently residing in Newfoundland as members of the  
Miawpukek Band at Conne River.  
[16] The Province begins by noting that those presently occupying the Island,  
whether they be of native or European ancestry, ended up here by journeying from  
somewhere else, a story, ultimately, of human migration. The question for the  
Province, therefore, comes down to when, where, and why the Mi’kmaq came to  
Newfoundland. Did the Mi’kmaq hunt and fish in parts of the Island as part of a  
traditional foraging practice prior to contact with Europeans? If not, when and  
under what circumstances did the Mi’kmaq arrive? What were their motivations  
for so doing? Was their arrival in Newfoundland integral to their distinctive  
culture, or was their principal interest in the Island a consequence of the European  
presence in North America?  
[17] A question arises as to where the Mi’kmaq originally arrived on the Island.  
The aboriginal and treaty rights claimed are geographically quite broad, although  
the cabins owned by the respective Defendants are located within the  
comparatively smaller confines of the Bay du Nord Wilderness Reserve, north and  
east of Conne River. The Defendants tended to refer to the broad geography of the  
Province’s “south and west coasts”. Aboriginal rights, however, are site - and fact-  
specific, submits the Province, therefore necessitating a closer inquiry into the  
evidence relating to the arrival of the Mi’kmaq in what is now the Conne River  
area, at the head of Bay d’Espoir.  
[18] To state the Province’s position in its most simplistic terms, the aboriginal  
homeland of the Mi’kmaq at the time of contact with European fishermen (circa  
1504-1550) included parts of Nova Scotia, New Brunswick, the Gaspé in Quebec  
and Prince Edward Island. The Province says the only aboriginal occupants of the  
Island of Newfoundland at the time of contact were those referred to in historic  
times as the Beothuk, who archaeologists believe descended from a stone age  
culture called the Little Passage Complex.  
[19] The Province accepts it is possible that there are Mi’kmaq living in  
Newfoundland today whose ancestors immigrated from Nova Scotia after the  
Page: 20  
declaration of the first Treaty of Paris in 1763. The Province submits it is more  
likely, however, that most arrived in the following century. 20  
[20] The Province argues the Mi’kmaq are no different from the English, Irish,  
French, Scottish and other “newcomers” who have made this Island their home.  
Many of their descendants can trace their European ancestry well before the 19th  
century, predating that of the Mi’kmaq says the Province.  
[21] The Province claims the Conne River community as it exists today has its  
roots in the early 1800's. The Mi’kmaq from Nova Scotia and from St. George’s  
Bay on the west coast, where they had arrived late in the previous century says the  
Province, used Conne River as a seasonal encampment when they began to travel  
to the Bay d’Espoir area to participate in the fur trade with the French. If this is  
correct, Mi’kmaq utilization of resources in what is now the Bay du Nord  
Wilderness Reserve at best began approximately 300 years following the Mi’kmaq  
initial encounter with Europeans.  
[22] When European explorers, such as Cormack, Jukes and Millais,  
encountered the Mi’kmaq, their reports show the primary objective of the Mi’kmaq  
hunt was to procure furs, particularly beaver, for trade. While the pre-contact  
Mi’kmaq may have utilized animal skins to survive, the Province argues trapping  
as a commercial enterprise was not a distinctive aboriginal practice of the Mi’kmaq  
at contact, but arose directly as a result of the European presence in North  
America. The Mi’kmaq in 19th and 20th century Newfoundland did not pursue a  
lifestyle distinctive from that of their European neighbours. Hunting, trapping, and  
fishing was the means of survival for all newcomers, whether native or European.  
Life “on the country” in the hinterland of Conne River was not exclusively an  
aboriginal practice. Stories recounted by older residents such as John Jeddore are  
certainly deserving of respect and do indeed represent the rich life of individuals,  
but they are not unique to Conne River submits the Province.  
[23] While oral histories and traditions have the potential to illuminate the past,  
the Province notes there are no such histories or traditions describing  
Newfoundland as part of Mi’kmaq traditional territory prior to contact.  
20  
None of the Mi’kmaq witnesses traced their ancestry beyond two generations.  
Page: 21  
Additionally, there are no traditions linking the Miawpukek Mi’kmaq with the  
treaties signed in Nova Scotia between various Mi’kmaq bands and the British.  
[24] The Province does not adopt the argument that the Mi’kmaq were brought to  
Newfoundland by the French to exterminate the Beothuk. Expressed in these  
terms, the so called Mi’kmaq “mercenary myth” is precisely that, a myth says the  
Province, and by the time of the Mi’kmaq arrival, in the Province’s view after  
1763, the Beothuk had already abandoned much of their traditional territory on the  
south coast. The Mi’kmaq presence in Newfoundland increased pressure on the  
Island’s scarce resources, subsequently leading to some hostilities between the two  
groups. But the Province accepts the Mi’kmaq are not “responsible” for the  
Beothuk extinction.  
[25] An understanding of the Mi’kmaq arrival in Newfoundland, and their  
motivations for so doing, requires an appreciation of the consequences of very  
early contact between Mi’kmaq and Europeans, the impact of the fur trade on  
Mi’kmaq subsistence practices, and the alliance which developed between the  
Mi’kmaq and French during the 17th century in present day Nova Scotia.  
[26] Experts for both the Defendants and the Province are in agreement that the  
Mi’kmaq were among the first aboriginals in northeastern North America to make  
contact with Europeans. By 1504 French Bretons were fishing off the coast of  
what is now Nova Scotia and perhaps trading as well. By 1534 the Mi’kmaq in  
Chaleur Bay were what the Defendants’ expert, Dr. Harald Prins, described as  
“eager and experienced traders”.  
[27] The Mi’kmaq, through their participation in the fur trade, had early access to  
European technology. By the early 1500's they had acquired copper kettles and  
were no longer reliant on kettles carved out of tree trunks, thereby greatly  
increasing their mobility, suggests the Province. By the late 1500's the acquisition  
of European sailing vessels known as shallops, which by all accounts the Mi’kmaq  
navigated with great skill, enabled them to traverse larger bodies of water in  
greater numbers and with relative safety. By the beginning of the 17th century  
some Mi’kmaq had also acquired firearms.  
[28] There are many examples of fur trade ventures in the 16th century with the  
Mi’kmaq in what is now Nova Scotia, followed by the establishment of trading  
posts in Nova Scotia and Cape Breton in the following century, and for a brief  
Page: 22  
period truckhouses in the late 1700's in Nova Scotia. However, there is no  
evidence of such trade in Newfoundland during this period, says the Province, nor  
were native trading posts or truckhouses established on the Island.  
[29] According to Dr. Prins and others, at the time of contact the Mi’kmaq were  
essentially a Maritime people who extracted 90% of their needs from the sea, ten  
out of twelve months of the year. Their participation in the fur trade drastically  
changed this subsistence pattern, as they spent more and more time in the interior  
in pursuit of furs. This, in turn, increased their dependency on European goods, as  
fur bearers brought little in the way of food. The relentless pursuit of furs, together  
with the introduction of firearms, resulted in a depletion of game stocks.  
[30] According to Dr. Prins, the Mi’kmaq and French formed a system of closely  
associated linkages: economic, military, religious and social. This alliance with the  
French, which was to fully develop in the 1600's, initially began through mutual  
trade in the previous century.  
[31] What began as a trading alliance quickly grew into a religious one, with the  
first documented conversion in North America occurring in Port Royal in 1610  
with the baptism of the Mi’kmaq Chief, Membertou. By the turn of that century  
most, if not all, Mi’kmaq had become devoted Roman Catholics. The spiritual  
needs of these early converts were met by Jesuit, Capuchin, and Recollet mission  
stations in Nova Scotia and New Brunswick. There were no Indian mission  
stations in Newfoundland.  
[32] The French and Mi’kmaq formed a close military alliance. This persisted  
throughout the 17th and 18th centuries until the cessation of hostilities following the  
fall of Louisbourg in 1758, Quebec City in 1759 and the first Treaty of Paris in  
1763. During the period 1759-1761, the British, through a series of “Peace and  
Friendship” Treaties, were able to successfully establish peace with various  
Mi’kmaq bands and other native groups. Prior attempts by the British to obtain  
lasting peace with various tribes of Mi’kmaq failed as agreements were overtaken  
by hostilities.  
[33] Finally, beginning in the 17th century the Mi’kmaq and French shared a  
close social relationship through intermarriage.  
Page: 23  
[34] The Province submits an understanding of this Mi’kmaq/French relationship  
is essential in order to put into perspective the motivations for Mi’kmaq arrival in  
Newfoundland following the cessation of hostilities between France and England,  
and to determine why, following the death of Father Maillard in Cape Breton in  
1762, Mi’kmaq were anxious to visit St. Pierre to obtain the services of a priest.  
[35] The accounts of early 16th century explorers such as Corte Real, Verranzo,  
and Crignon are simply too ambiguous in the Province’s view to enable us to  
identify with any certainty the ethnic group encountered, or for that matter even  
where the event occurred. In many cases the reports we have are second hand and  
in some cases recognized by scholars as fictitious. The Province argues one  
cannot, for example, say that a particular group is Mi’kmaq, Montagnais, or  
Abenaki based on how they responded to Europeans at a given point of time.  
Responses are situational and, as such, emotional traits such as “aggressive” or  
“friendly” are simply not a valid identifier of ethnicity, says the Province.  
Similarly, contends the Province, physical characteristics such as the use of tattoos  
or hairstyles are unhelpful in identification as they are so common among the  
northeastern aboriginals. As to the location of these early encounters, the Province  
argues the cartography, particularly in the 16th century, is so imprecise that we  
really do not know whether these encounters occurred on the New England coast,  
the coast of Labrador, the Gulf of St. Lawrence, Newfoundland, or elsewhere. For  
example, prior to Cartier’s discovery of the Cabot Strait in 1536, early maps do not  
show Newfoundland as an Island, but assume a continuous coastline from Cape  
Race through Nova Scotia and along the eastern seaboard.21  
[36] There is, however, a body of historical material, notarial records, that the  
Province believes sheds some light on whether aboriginal people, such as the  
Mi’kmaq, were present on the south coast of Newfoundland in the 16th century.  
During this century the Mi’kmaq were active participants in the fur trade, and there  
are surviving notarized contracts for the supply of vessels from France to fish in  
Newfoundland and to trade in furs in what is now Cape Breton, the south shore of  
Nova Scotia and along the coast of Maine,22 or the Gulf of Canada. However, the  
Province submits there is no evidence of vessels being outfitted to trade in furs in  
21  
See map in Hoffman, note 1 above, p. 17.  
22  
Sometimes then referred to as the Coast of Florida, as distinct from the Florida of today.  
Page: 24  
Newfoundland, leading to the reasonable conclusion that there were, at that time,  
no natives on the south coast with whom to trade.23  
[37] Indeed, says the Province, the Newfoundland coast was not a place where  
fur trading occurred, with Mi’kmaq or any other group, until after the arrival of  
Mi’kmaq following the first Treaty of Paris in 1763. Faced with an absence of  
local trading partners, the resident European population took to the woods and  
conducted their own trapping in an effort to supplement income from the fishery.  
There were no fur trade posts and it was not until the late 1700's that ledgers of  
companies, such as Newman and Company, show evidence of a trade in furs in  
addition to fish.24  
[38] The classic literature of the 17th century, written by Lescarbot, d’Iberville,  
Champlain, Biard, and notably Nicholas Denys, who for 20 years operated a fur  
trade post in Cape Breton and whose monopoly included Newfoundland, makes no  
mention of Mi’kmaq travelling to Newfoundland to trade or as part of a traditional  
subsistence quest.  
[39] In addition, the voluminous official correspondence from Plaisance makes  
no mention of the presence of aboriginal peoples until a 1687 census records three  
unidentified “sauvages” (a man, woman and child)25 among a substantial year-  
round French population in Plaisance and the environs of Bay d’Espoir. While the  
ethnic identity of these three natives is uncertain, they may have been Mi’kmaq.26  
In 1694, the presence of a group of natives, likely Beothuk, was discovered on the  
south coast, providing evidence that the Beothuk had not completely abandoned  
the area by this time.27  
23  
See “The French notarial records” discussed below at Part III. B.4(a).  
24  
While a few natives, who might well have been Mi’kmaq, are recorded in these ledgers, the majority of  
those recorded as trading furs were European.  
25  
Memoir of Instruction to the Sr d’Iberville, Captain of light frigate, concerning the undertaking in  
Newfoundland, March 31, 1696 (France: Archives des Colonies B/19), ff. 50-52v [Province’s Historical Documents,  
vol. 11, CD 155]. See von Gernet, Expert Report, p. 167.  
26  
There is an equal possibility that these natives were Abenaki, as the French had developed an alliance  
with the Abenaki by this time and, indeed, Abenaki assisted d’Iberville in his winter campaign of 1696-97.  
27  
Letter from de Brouillan to the Minister, October 25, 1694 (France: Archives des Colonies C11C/2), ff.  
19-21 [Province’s Historical Documents, vol. 11, CD 149].  
Page: 25  
[40] The first undisputable presence of Mi’kmaq at Plaisance is recorded in the  
1695 court-martial of two French men for murdering members of the Turbis  
family, who were likely baptized Christians.28 Mi’kmaq in Nova Scotia were  
known to camp near the French, and this family appears to be an isolated case in  
Newfoundland. Indeed, there were no natives available to assist the French in the  
d’Iberville campaign of 1696-97, contends the Province, leading to the suggestion  
that “sauvages” from Acadia be imported for the purpose.  
[41] Not until 1705, over forty years after official record-keeping began at  
Plaisance, did the French record the arrival of Mi’kmaq in a sufficient enough  
number to comprise a band in the area. The French initially welcomed the arrival  
of 20 to 25 Mi’kmaq families from Cape Breton, as the Mi’kmaq could be put to  
good use by the French in their campaigns against the English.29 Within a few  
years, however, the French stated that the Mi’kmaq were troublesome and no  
longer of assistance and attempted to send them back to Cape Breton.30  
[42] After the loss of St. Pierre in the Treaty of Utrecht (1713) and the  
abandonment of Plaisance by the French, there is no evidence of a continued  
Mi’kmaq presence on the south coast of Newfoundland, or for that matter even on  
the west coast of Newfoundland, until after the Treaty of Paris in 1763 (when St.  
Pierre was restored to the French). Surveys of the south coast, conducted by  
William Taverner in 1714-171531 and John Gaudy in 1716,32 make no mention of  
28  
Sentence of court-martial, Plaisance, September 17, 1695 (France: Archives des Colonies, Serie F3,  
Collection Moreau de Saint-Méry, vol. 54), f. 352 [Province’s Historical Documents, vol. 11, CD 151].  
29  
Letter from Subercase to the Minister, October 22, 1705 (France: Archives des Colonies, Serie C11C,  
Amerique du Nord, vol. 4), f. 219 [Province’s Historical Documents, vol. 16, CD 200].  
30  
Letter from Costebelle to the Minister, July 10, 1707 (France: Archives des Colonies, Serie C11C,  
Amerique du Nord, vol. 5), f. 96 [Province’s Historical Documents, vol. 19, CD 216]; Letter from Costebelle to the  
Minister, August 10, 1709 (France: Archives des Colonies, Serie B, Lettres envoyees, vol. 30), ff. 310-311  
[Province’s Historical Documents, vol. 21, CD 235].  
31  
William Taverner, Some Remarks on the Present State of the South Part of Newfoundland, February 15,  
1715 (CO 194/6), ff. 44v-51 [Province’s Historical Documents, vol. 24, CD 280]; William Taverner, Second  
Report, May 20, 1718 (CO 194/6), ff. 226v, 241v [Province’s Historical Documents, vol. 26, CD 299].  
32  
John Gaudy, Journal kept by John Gaudy Lieutenant of His Majesty’s Sloop Swift, June 1716 - October  
1717 [Province’s Historical Documents, vol. 26, CD 294]. See also Captain Thomas Durell, Journal H.M.S. Swift,  
May 17, 1716 - December 23, 1718 (ADM 51/4363) [Province’s Historical Documents, vol. 25, CD 286].  
Page: 26  
Indians although both had orders to report any encounters with natives.33 In 1734,  
H.M.S. Roebuck, under the Command of Captain Crawford, visited the  
southwestern corner of Newfoundland to investigate reports of a French settlement  
at Codroy. But he does not indicate that he saw or encountered aboriginals while  
he sailed to and from Codroy or even while he was there.34 Mi’kmaq hostilities  
against the English continued during this period and the capture of a New England  
vessel off Port aux Basques in 1727 probably was not part of a subsistence quest,  
suggests the Province, but a military campaign in retaliation for the hanging of  
Mi’kmaq kinsmen in Boston.35  
[43] The death of the French Missionary, Father Maillard, left the Mi’kmaq in  
Cape Breton without spiritual guidance. Shortly thereafter we learn of Mi’kmaq  
travelling to St. Pierre in shallops specifically looking for the services of a priest.  
[44] Evidence dating Mi’kmaq arrival in the Bay d’Espoir area following the first  
Treaty of Paris comes from Hugh Palliser, Governor of Newfoundland. In 1766  
Palliser records Mi’kmaq from Cape Breton travelling up Bay d’Espoir where  
“they had never been before”.36 Palliser attempted, without success, to confine  
these new arrivals to “their own side of the Gulph,”37 although his counterpart in  
33  
See copy of additional instructions from Board of Trade to William Taverner, July 22, 1713 (CO 194/5),  
ff. 103-104v [Province’s Historical Documents, vol. 24, CD 266]; and Board of Trade to Secretary of State  
Stanhope, March 10, 1715 (CO 5/4), f. 28 [Janzen Supporting Documents, vol. 1, Tab 6].  
34  
Olaf Janzen, On Evidence for the Presence of Native People on the South Coast of Newfoundland in  
Royal Navy records to 1770, p. 3 [hereinafter cited as Janzen, Expert Report]; Lord Muskery’s Answers to Heads of  
Enquiry, #60, 61, 62, October 31, 1734 (CO 194/9), ff. 259-259v [Province’s Historical Documents, vol. 30, CD  
362]; see also Letter from Captain Lee, Governor of Newfoundland to Board of Trade, September 25, 1736 (CO  
194/10), ff. 25-28v [Province’s Historical Documents, vol. 30, CD 369].  
35  
Letter from Lt. Governor Armstrong to Governor de Brouillan, Calendar of State Papers, Colonial  
Series, America and West Indies, vol. XXXV, 1726-1727, Doc. No. 789 (xv), pp. 402-403 [Province’s Historical  
Documents, vol. 28, CD 335]; Letter by St. Ovide de Brouillan to the Minister, September 13, 1727 (France:  
Archives des Colonies C11B, Correspondence Generale, Ile Royale, vol. 9), ff. 50-51 [Province’s Historical  
Documents, vol. 29, CD 337]; Letter by St. Ovide de Brouillan to the Minister, November 20, 1727 (France:  
Archives nationales de France, Colonies C11B/9), ff. 64-70v [Province’s Historical Documents, vol. 29, CD 340].  
36  
Palliser to Henry S. Conway, October 30, 1765 (CO 194/27), ff. 132-135v [Province’s Historical  
Documents, vol. 45, CD 627].  
37  
Copy of Despatch by Thomas Graves, Governor of Newfoundland to Board of Trade, October 20, 1763  
(CO 194/15), f. 108v [Province’s Historical Documents, vol. 36, CD 521].  
Page: 27  
Nova Scotia, who viewed them as British subjects, observed that they were free to  
travel throughout His Majesty’s domain.38  
[45] The modern Miawpukek Reserve at Conne River has its roots in the early  
1800's, says the Province, gradually emerging as a permanent settlement by the  
middle of that century. Lieutenant Chappell, who sailed the ship Rosamond into  
St. George’s Bay in 1813, was told by two young Mi’kmaq of their first arrival in  
St. George’s Bay sometime after the War of American Independence (which ended  
in 1782).39 Governor MacGregor visited Conne River in 1908 and was provided a  
first hand account of the Mi’kmaq arrival in the area by a woman named Sarah  
Aseleka, who was then 90 years old. She told MacGregor that 60 years previously  
her family moved from Bay St. George, where she had been born, to Conne River.  
This would place her arrival at around 1848.40 Reverend St. Croix, who  
administered to the Mi’kmaq in Conne River in the early 1900's, records that  
Maurice Lewis came to the area sometime between 1815 and 1816.41 Reverend  
Edward Wix arrived in Conne River in 1835 and noted that children were still  
being carried to St. Pierre for baptism. Bishop Fleming, who also arrived in 1835,  
recorded a seasonal encampment at Conne River of 72 persons, some of whom he  
baptized and others who had been confirmed in Canada twenty years previously.42  
[46] The Province argues the archaeological evidence is wholly consistent with  
the historical evidence. There is no archaeological evidence that the Mi’kmaq  
inhabited or visited Newfoundland prior to the arrival of the Europeans. There is  
38  
Montagu Wilmot, Governor of Nova Scotia to Lieutenant Colonel Pringle, December 12, 1765 (RG  
1/136), ff. 72-73 [Province’s Historical Documents, vol. 46, CD 636].  
39  
Lieutenant Edward Chappell, Voyage of His Majesty’s Ship Rosamond to Newfoundland and the  
Southern Coast of Labrador (London: J. Mawman, 1818), pp. 75-77 [Province’s Historical Documents, vol. 60, CD  
889].  
40  
Report by Governor Upon the Settlement of the Micmac Indians at Bay d’Espoir: Despatch No. 86 to S.  
State by Governor, July 8, 1908 [Province’s Historical Documents, vol. 68, CD 936]; “Newfoundland: Report by  
the Governor on a visit to the Micmac Indians at Bay d’Espoir”, Colonial Reports - Miscellaneous, No. 54 (London:  
HMSO, 1908 [Province’s Historical Documents, vol. 68, CD 937].  
41  
Stanley St. Croix, The Micmacs of Newfoundland [Province’s Historical Documents, vol. 72, CD 954].  
42  
Luca Codignola, “Documents Relating to the Aboriginal Peoples of the Atlantic Region of Canada, With  
Special Attention to the Mi’kmaq of Newfoundland, Nova Scotia, and Saint-Pierre and Miquelon: A Calendar”,  
(Unpublished MS, Università di Genova, Italy, 14 December 1999), p. 32 [Prins Supporting Documents, vol. 14,  
Tab 10].  
Page: 28  
archaeological evidence, however, for the presence of the Beothuk and their pre-  
contact ancestors of the Little Passage period. There is a rich archaeological  
record, as well, for the existence of other ethnic groups in Newfoundland’s past  
during what archaeologists call the Maritime Archaic and Paleoeskimo period.  
Notably, there is archaeological evidence for the presence of Mi’kmaq in the  
interior of Newfoundland in the 1800's although by that time the material culture of  
Europeans and Mi’kmaq is largely indistinguishable.  
[47] In contrast, there is ample evidence in the archaeological record in Nova  
Scotia for the widespread presence of the Mi’kmaq prior to and at the time of  
contact. In fact, the evidence is so overwhelming, said archaeologist Christianson,  
that the ancestors of the Mi’kmaq have given rise to an archaeological period, not  
known in Newfoundland, called the Ceramic Period. Here too Nova Scotia’s  
archaeology is supported by the historical record.43  
[48] Each Defendant claims to be the beneficiary of treaties signed in 1725,  
1726, 1752 and June 25, 1761 by the British and various native groups, including  
Mi’kmaq in Nova Scotia. Defence historian, Dr. William Wicken, expressed the  
opinion that all treaties existed as a seamless whole with the 1760-61 treaties  
constituting a renewal of those terms favourable to the Mi’kmaq in the prior  
treaties of 1725 and 1752.  
[49]  
It is the Province’s position, however, that there were no general treaties  
entered into between the British and the Mi’kmaq nation, as the notion of Mi’kmaq  
“nationhood” did not exist in the 18th century. Rather, there were a number of  
individual treaties signed with specific bands of Mi’kmaq and other native groups  
beginning in 1725-26, 1752, 1760-61 and 1776. The Province argues these treaties  
do not form a seamless whole and the treaty of June 25, 1761 did not constitute a  
renewal of prior treaties. Treaties between the British and individual Mi’kmaq  
bands prior to 1760-61 were aimed at establishing peace between the two groups  
but were subsequently overtaken by hostilities, contends the Province.  
[50] The Province submits the only valid and subsisting treaties are those of  
1760-61, and these must be interpreted by looking at their text and the  
circumstances surrounding their execution. Two of these relate to the Mi’kmaq of  
Cape Breton: the oath of allegiance taken by General Whitmore at Louisbourg in  
43  
See “The Mi’kmaq Prior to Contact”, Part III.B.1(c) below.  
Page: 29  
1760 and the Treaty on Belcher’s farm outside Halifax on June 25, 1761. The  
Province submits there is no evidence of a treaty between the ancestors of the  
modern Miawpukek Band and the British.  
[51] The Province argues the Cape Breton Mi’kmaq were not given treaty rights  
beyond the jurisdiction of Nova Scotia. They were British subjects with all the  
rights and privileges of British subjects wherever the flag flew. Captain  
Thompson’s “renewal” of the Treaty in 1763 on The Lark off Codroy44 constituted  
a reaffirmation of the oath of allegiance taken by Whitmore in 1759 but not of the  
treaty signed at Halifax on June 25, 1761, says the Province.  
[52] In sum, the Province submits that, while the contribution of the Mi’kmaq to  
the cultural diversity of the Province is beyond question, there is still no basis in  
fact or law for concluding that the Mi’kmaq enjoy constitutionally protected rights  
greater than the residents of the Province as a whole.  
6. The Interveners’ positions  
[53] The Interveners allege any aboriginal or treaty rights acquired by the  
Mi’kmaq of Conne River were extinguished by legislation of the government of  
Newfoundland, before Newfoundland became a province of Canada in 1949.  
II. THE ISSUES  
[54] Three issues arise:  
1.  
2.  
3.  
Does each Defendant enjoy an aboriginal right to hunt, fish or trap in  
the Bay du Nord Wilderness Reserve?  
Does each Defendant enjoy a treaty right to hunt, fish or trap in the  
Bay du Nord Wilderness Reserve?  
If aboriginal rights existed, have they been extinguished by legislation  
of the Newfoundland government?  
44  
See discussion below, Part V.A.5(e) and V.B.6.  
Page: 30  
III.  
HISTORICAL EVIDENCE - ABORIGINAL RIGHTS  
[55] Because of the importance of context and the significance placed by many  
historians today on the narratives or “stories” of the parties, I believe it important  
to fully set out the views of the Province and the Defendants on the historical  
evidence.  
A.  
The Defendants’ View of the Evidence on Aboriginal Rights  
1. The East Country  
[56] The Bay du Nord Wilderness Area, as established by the Province of  
Newfoundland in 1990, incorporates a significant hunting, fishing, and trapping  
area for members of the Miawpukek Band, part of what is known to its members as  
"the East Country." The Mi'kmaq have traditionally accessed the East Country  
from Bay d'Espoir, rather than from the south by the Bay du Nord River.  
[57] The Province in 1994 posted for removal eleven cabins within the Bay du  
Nord Wilderness Area. In 1995 a further seven cabins, those associated with five  
members of the Miawpukek Band, were also posted. Band members who maintain  
these seven cabins regard their hunting and trapping grounds in the East Country as  
inherited from their ancestors.  
[58] The majority of the seven cabins at issue were built by the Band in the 1970s  
and 1980s to facilitate trapping as well as subsistence hunting and fishing, under  
the auspices of the Band's Trappers' Association and guide-training programs.  
[59] The Defendants submit seasonal residence "on the country" has been vital to  
the cultural survival of the Mi'kmaq of Newfoundland. Elder John Nicholas  
Jeddore testified that going on the country for food and furs "was important,  
because that was our life. That's the way we lived. To us, there was no other way.  
To me and my father, there was no other way." Saqamaw Mi'sel Joe testified that  
hunting, trapping and fishing remain "part of our identity and it's part of our  
survival... it's being out there using the land, being part of the land, teaching your  
children about the land."  
[60] The Defendants contend family-based hunting and trapping territories, and  
the central cultural significance of the hunt, are long-standing features of Mi'kmaq  
society. Father Le Clerq, writing of a chief of the "Gaspesians" [Mi'kmaq] in 1691  
Page: 31  
noted: "The occupation of this chief was to assign the places for hunting, and to  
take the furs of the Indians, giving them in return whatever they needed."45 Writing  
in 1835 Reverend Wix noted of the Newfoundland Mi'kmaq that they "separate son  
from father, and brother from brother, that they may have uninterrupted space for  
their hunting and furring excursions."46 In 1887 geologist James P. Howley, who  
made the first European maps of the East Country, observed while at Rainy Lake  
that his party was in Peter Stride's "section of country. It may not be generally  
known that the Micmacs have the whole island divided off in sections and parceled  
out amongst themselves ..." .47  
[61] The Defendants contend the East Country remained unknown to and  
unexplored by Europeans and Newfoundlanders of European descent until the 19th  
century. Then explorers of that territory, who were guided by Mi'kmaq, noted a  
pre-existing Mi'kmaq presence. From the time European documentation of the  
interior began in the 19th century, observers consistently noted (a) the presence of  
Mi'kmaq and (b) the absence of Europeans and European-descended settlers, other  
than those explorers, surveyors and their employees themselves. The earliest  
documented instance of a European-descended settler in the East Country relates to  
a short-lived sawmill near the mouth of the Bay du Nord River between 1901 and  
1911. J.G. Millais related how a Mi'kmaq hunter, Steve Bernard, rescued a  
hopelessly lost mill employee, a resident of the coastal village of Bay du Nord, in  
the East Country, c.1903.48  
[62] In 1822 explorer William Cormack was accompanied by Mi'kmaq guide  
Sylvester Joe on a journey across the "totally unknown interior" of Newfoundland -  
a journey that traversed the northern portion of what became in 1990 the Bay du  
Nord Wilderness Area. Although Cormack and Joe did not meet any hunters in the  
interior during this part of their journey (roughly from September 11 to October 7,  
1822), Cormack's Journal notes that they did observe two sets of tracks "on the  
45Father Chrestien Le Clerq, New Relation of Gaspesia (1691) [CD 127], p. 235.  
46Edward Wix, Six Months of a Newfoundland Missionary’s Journal (1836) [CD 995], p. 101  
47James P. Howley, Reminiscences (1887), p. 48 [Cuff Supporting Documents, vol. 2, tab 5].  
Frank G. Speck, Beothuk and Micmac (1922) [ED 1], pp. 83-88; 130-136.  
48J.G. Millais, Newfoundland and its Untrodden Ways (1907) [CD 933], pp. 298-300.  
Page: 32  
savannas [Cormack's term for the barrens] [t]hroughout this great Eastern Division  
of the interior." He wrote:  
... we concluded that one of them was that of a Mickmack or  
mountaineer Indian, who had been hunting here in the preceding year,  
and from the point of the foot being steep that he was going, laden with  
furs, to the Bay of Despair. The other track was on the shores of Gower  
Lake, of an Indian who had passed by this season apparently from the  
Bay of Despair towards Gander Bay.49  
[63] Like many of Cormack's assigned toponyms, Gower Lake is not currently in  
use. From his map Gower Lake would appear to be northeast of Mount Sylvester,  
between Kepenkeck and Rainy Lake, in any case in the northern part of the Bay du  
Nord Wilderness Area.  
[64] In 1851, while engaged in a telegraph survey, Englishman F.N. Gisborne  
observed (while to the northeast of the village of Bay du Nord, traversing an area  
which is probably in the southern part of the Bay du Nord Wilderness Area) what  
he took to be signs of Indian inhabitation: "we picked up an Indian drinking cup of  
birchbark, frequently came across the prints of moccasins & furthermore saw the  
remains of an old tilt in the woods ... .” Gisborne did not observe signs of  
European habitation or seasonal use of the interior. On reaching Conne River, the  
Mi'kmaq informed him as to their preferred route across the country from Placentia  
Bay to Bay d'Espoir, virtually across the middle of what is now the Bay du Nord  
Wilderness Area : "clear of the bad lay of the country in North Bay [Bay du  
Nord]."50  
[65] In 1887 geologist James P. Howley, in company with Mi'kmaq guides from  
Conne River, was the first European or Newfoundlander of European descent to  
traverse and map the East Country.51 Howley's party made a difficult ascent of the  
Bay du Nord River, hampered by the fact that there were no pre-existing portages  
above Smokey Falls (pp. 12-14). Howley did not meet any settlers in the East  
49William E. Cormack, Narrative of a Journey Across the Island of Newfoundland in 1822,  
reproduced in James P. Howley, The Beothucks or Red Indians (1915) [CD 945], p. 145.  
50F.N. Gisborne, Gisborne’s Journal of an Electric Telegraph Survey in Newfoundland 1851,  
October 7th and 18th [Cuff Supporting Documents, vol. 1, Tab 6].  
51James P. Howley, Reminiscences, note 47 above.  
Page: 33  
Country, but did encounter several Mi'kmaq trappers and hunters at Medonnegonix  
Lake. Medonnegonix, a Mi'kmaq name meaning "the end of the portage," was a  
major gathering-place on the traditional route from Bay d'Espoir into the East  
Country by the Little River system. Members of the Miawpukek Band encountered  
in the East Country included unnamed "Indians from Bay Despair" and Louis John  
(p. 9), Bernard John and Nicholas Jeddore (p. 20), then Peter Stride and "a young  
fellow named Bennoit" in the vicinity of what Howley named Rainy Lake, to the  
north of Mount Sylvester. Howley noted of Stride that "[a]s Peter knows this part  
of the country thoroughly, he was able to give me much valuable information" (p.  
48). Howley further noted a tilt at Kaguedeck that belonged to a Mi'kmaq, Reuben  
Lewis (p. 41).  
[66] J.G. Millais detailed his understanding of family-based trapping territories in  
the early 20th century.52 He identified 26 Mi'kmaq hunting territories on the Island  
of Newfoundland, including 11 in the East Country:  
John Bernard  
John Stride  
Reuben Lewis  
- Middle Ridge and Glenwood  
- Northern side of Sylvester  
- Kagudeck  
Stephen Bernard - Sandy Pond and Shoe Hill Ridge  
Peter John - Eastern Maelpeg  
Micky John & Peter John - St. John's Pond  
John Hinx &}  
Paddy Hinx &} - Wiskomonagodie, Eastern Patridgeberry Hills,  
Johnny Hinx}  
Mathew Burke & Johnny Benoit  
John Barrington - Eastern side of Tolt  
Lewis John - Eastern side of Tolt  
- S. of Maelpeg  
- Tolt and Pipers Hill Brook  
[67] The Mi’kmaq elders testified that especially during the late fall and winter,  
the Mi'kmaq depended for subsistence on the Island's various terrestrial mammals:  
caribou, black bear, beaver, hares, muskrat, wild fowl and other small game. The  
Defendants submit the "inland" portions of the seasonal cycles were, and remain,  
vital to a Mi'kmaq way of life.  
52J.G. Millais, Newfoundland and its Untrodden Ways (1907), p. 222 [CD 933].  
Page: 34  
[68] Traditionally hunting and trapping expeditions in the interior employed  
wigwams or tilts as a home-base for such activities. Both F.N. Gisborne (1851)53  
and J.P. Howley (1887)54 noted the existence of such tilts in the Bay du Nord  
interior. Elder John Nicholas Jeddore described a practice of building a main  
wigwam or "home tilt" which would be used from year-to-year.  
[69] The Defendants submit it is a paradox of Newfoundland's recorded history  
that the Island was one of the earliest parts of North America to be "discovered" by  
Europeans, and portions of its coast remained the part of North America most  
frequented by Europeans for more than a century; yet the interior and the south and  
west coasts, "the back partes of Newfoundland," remained virtually unknown or at  
least undescribed. The English had only the vaguest notions as to the south and  
west coasts of the Island, while French cartography lacked consistency and  
accuracy. A map of Newfoundland produced by French cartographer Jacques  
Nicolas Bellin in 1743 has written across it "l'Interieur de l'Isle & le cours des  
rivieres ne sont pas connu", while Bellin's 1755 map of St. Pierre and Miquelon  
notes the "Baye de Fortune don't l'Interieur est tres pas connu." According to E.R.  
Seary, "[c]ommonly maps left the interior blank or very rarely, bore a legend" such  
as that on so late a map as Thomas Kitchin's 1762, "The inland parts of this Island  
are entirely unknown".55 The Defendants note as a Canadian context that  
Cormack's pioneer journey across the "unknown interior parts" of Newfoundland  
came years after the interior of British Columbia was traversed by Alexander  
Mackenzie, Simon Fraser and David Thompson.  
2.  
The Mi'kmaq  
[70] The Defendants say the evidence shows the pre-contact practices, customs  
and traditions of the Aboriginal peoples of the present-day Atlantic Provinces  
centred on a seasonal round of hunting, fishing and foraging. The ancestral  
53Above, note 50.  
54Above, note 47.  
55 See Cuff, Expert Report, pp. 4-8; Charles Martijn, Historical Maps Relevant to the  
Newfoundland Mi’kmaq 5.2.1 annexe #1, in “Netukleuk” (On the Country): Miapukek Mi’Kamawey  
Mawi’omi Land Claim and Self-Government Submission (1996) (von Gernet Supporting Documents, Tab  
237); Olaf Uwe Janzen, Showing the Flag: Hugh Palliser in Western Newfoundland, 1764 (1993), pp. 7-  
8; E.R. Seary, Place Names of the Avalon Peninsula of the Island of Newfoundland (1971), p. 15;  
Edward Tompkins, Newfoundland Interior Explored (1986).  
Page: 35  
Mi'kmaq exploited a variety of land-based and marine resources, moving  
seasonally between interior hunting and trapping grounds and various coastal  
locations to gather shellfish, fish and hunt for seals. Yearly migrations of the  
pre-contact Mi'kmaq employed regular, seasonal camp sites at locales with reliable  
access to a variety of resources. However the routes were not inflexible. As with  
other hunter-gatherer people, ancestral Mi'kmaq adjusted their seasonal rounds in  
response to environmental and socio-economic factors.56  
[71] Although some animals were killed year-round, the Defendants note that  
anthropologists and ethnographers theorize, from observation of the seasonal round  
of 'more primitive' peoples of remote northern regions of Canada, from early  
historic accounts of the Mi'kmaq, and from archaeological evidence, that moose  
and caribou were typically hunted most intensely in the late fall and early winter.  
Seasonal concentration of hunting and trapping activities has continued to date,  
owing to a variety of factors, including quality of meat and fat, the exigencies of  
tracking and the chase, and ease of preservation - coincident with a low ebb in the  
cycle of coastal resources. The hunt of fur bearing animals for clothing,  
nourishment and trade was opportunistic year-round, but concentrated in the  
'inland' months of the fall and early winter.57  
[72] Elders, and Defendant Ken Drew, testified to seasonal use of interior hunting  
and trapping camps consistent with the Defendants’ picture of annual cycles of  
seasonal exploitation of interior game and furs.  
[73] The Defendants refer to writers who noted that hunting larger animals for  
food and furs, while concentrated at certain times of year, has a significant cultural  
significance for the Mi'kmaq, being inextricable from such practices, customs and  
traditions as rites of passage, one's identity as a Mi'kmaq, food gathering, status  
within the community and traditional religious rites.58  
56Bernard G. Hoffman, The Historical Ethnography of the Micmac of the Sixteenth and  
Seventeenth Centuries (1955), pp. 151-156. Charles Martijn, Historical Review in On the Country, note  
45 above, 5.3.3: pp. 2-3.  
57Father Chrestien Le Clerq, note 45 above, pp. 274-287. Wilson D. Wallis and Ruth Wallis,  
The Micmac Indians of Eastern Canada (1955), pp. 34-42 [von Gernet Supporting Documents, vol. 51,  
Tab 461].  
58Hoffman, note 56 above [CD 18], pp. 268-272. Father Chrestien Le Clerq, note 45 above, pp.  
274-277.  
Page: 36  
[74] The Defendants argue that as with other native peoples of North America the  
Mi'kmaq have been significantly affected by imported cultures, a reduction in their  
numbers through introduced diseases, and their increasing relegation to minority  
status within their ancient homeland. They submit one key impact, felt across the  
whole of Mi'kmaq culture by the 20th century, was increasing sedentarization and  
the adoption of fixed village sites, such as that at Conne River [Miawpukek]. The  
Defendants submit loss of habitat for game and fur-bearing animals due to the  
pressure and land-hunger of European settlement has further limited Mi'kmaq  
nomadism.59  
3.  
Native Peoples of Newfoundland  
[75] The archaeology of southern Newfoundland remained largely unknown until  
surveys and investigations instigated by the Miawpukek Band and the Defendants  
suggest it has still not been studied exhaustively. To date no archaeological site  
identifiable as definitively Mi'kmaq has been dated any earlier than the 19th  
century. The Defendants argue this does not meant that sites which date to earlier  
periods do not exist, but only that no such site has been yet located or identified.  
[76] The limitations of archaeology to ethnically identify material objects after  
aboriginal groups incorporated articles of European manufacture into their material  
culture are well known. After contact and the switch from a stone-tool culture the  
ethnic identification of artifacts becomes a cloudy issue. The Defendants suggest  
aboriginal sites dating to the 17th and 18th centuries are very often  
indistinguishable from European sites of the same date. Dr. von Gernet testified  
that "the archaeological record may not be sensitive enough to pick up a Mi'kmaq  
presence [in Newfoundland] in the 16th and 17th centuries because the Mi'kmaq  
material culture had changed considerably, and it resembled that of a European  
assemblage".  
[77] The Beothuk were the terminal phase of an aboriginal group who flourished  
in Newfoundland from the time of Dorset Eskimo demise during the first  
millennium A.D. Archaeologists suggest they are the descendants of a stone age  
59See generally, Doug Jackson, On the Country: The Micmac of Newfoundland (Gerald Penney  
ed.1993) and Harold Prins, The Mi’kmaq: Resistence, Accommodation, and Cultural Survival (1996), pp.  
189-198 [von Gernet Supporting Documents, vol. 20, Tab 192 and vol. 36, tab 334]  
Page: 37  
culture called the Little Passage Complex. There is no archaeological consensus as  
to the prehistoric relationship between the Beothuk, Innu, Dorset Eskimo and  
Mi'kmaq. During the 17th and 18th centuries the native Newfoundland Indians are  
referred to as “Red Indians” and during the 19th century as “Beothuk” (spelling  
varies). Although the Beothuk were more dispersed throughout Newfoundland  
during the prehistoric period, most historical knowledge relates to one particular  
group situated along the Exploits River system during the late 18th and early 19th  
centuries. After initial amicable contacts with Europeans, conflicts increased and  
the Beothuk moved to the interior as the coastal zone in Notre Dame Bay became  
more frequented by Europeans. Expert witnesses presented by both parties rejected  
an "insular model" of the prehistory of Newfoundland. See, for example, Dr. von  
Gernet’s cross-examination:  
Q:... recognizing the problem with identity in making specific inferences,  
but as a general proposition, would you agree that the Protohistoric  
period probably had other aboriginal groups over and above the Beothuk  
utilizing Newfoundland.  
A: Yes, I think I need to preface my answer with defining what this  
insular model is. The insular model suggests that only one aboriginal  
population could have occupied and did occupy Newfoundland at any  
point in time. I think there is sufficient evidence that model is contrary to  
the evidence. For example, we know in the pre-contact period that there  
was some contemporaneity to some of the archaeological assemblages.  
We also know that the Montagnais and the Mi'kmaq and the Beothuk  
were on the island in the early 19th century ... So we have a pre-contact  
record suggesting that more than one population could be on the island at  
the same time, and we have the much later record. So I think that it - I  
don't think we should rule out that there could have been more than one  
aboriginal group in Newfoundland in the intervening period, and so I  
agree with Professor Prins in the rejection of any model that suggests  
only one group could be on the island at a time. Whether there's any  
evidence for this in the intervening period, that's, of course, another  
question, but as a general proposition I agree.  
[78] The people more recently known as “Innu” are referred to in historic  
documents relating to Newfoundland as “Montagnais”, “Mountaineer” or  
“Montagnais-Naskapi”. They are speakers of a dialect of the Cree language and  
archaeologists suspect that their immediate pre-historic ancestors, in Labrador,  
were a prehistoric culture named “Point Revenge”. Since the 16th century at least it  
appears the Montagnais-Naskapi of the Labrador peninsula have lived and hunted  
in the wooded areas of Hamilton Inlet and the drainage of the Little Mecatina and  
Saint Augustine Rivers, to the shores of the Saint Lawrence River. Their range was  
Page: 38  
wide and they subsisted almost entirely on the animal resources of the country.  
During the short summer season they vacated the fly-infested interior to gather  
along the shores of large interior lakes or the mouths of rivers discharging into  
James Bay, Hamilton Inlet and the St. Lawrence. While the opportunities of the  
early 16th and 17th century fur trade arguably drew them to the coast, the demands  
of the trade of the later centuries apparently encouraged them to return to the  
northern and eastern hinterlands where interior trade posts were constructed. Their  
presence in southern Labrador was recorded by George Cartwright.60 Pioneer  
ethnographer of the Newfoundland Mi'kmaq, Frank Speck, makes a point of  
referring to the Mi'kmaq of Newfoundland as "Micmac-Montagnais" because  
Montagnais hunters from Labrador “... have become thoroughly incorporated with  
the Micmac, so that while the language in Newfoundland has remained Micmac,  
many ethnological and some physical characteristics ... are largely Montagnais."61  
[79] The Labrador Inuit are cultural and racial descendants of Thule people who  
first arrived on the Labrador coast from Baffin Island and possibly Greenland  
during the period A.D. 1350-1500. By the early 1500s their southward migration  
had taken them as far as the Strait of Belle Isle and northern Newfoundland. There  
is no agreement among scholars as to whether the southward movement of the  
Inuit was encouraged or interrupted by the presence of Europeans. Up to the  
mid-1700s the Inuit were seasonally settled on both sides of the Strait of Belle Isle  
and along the shores of the St. Lawrence. Here, they traded baleen and ivory with  
established French traders and seasonal European fishermen for manufactured  
items. These encounters were often marked by violence and after the ousting of the  
French following the Treaty of Paris in 1763 the British sought to keep the Inuit  
confined to the northern regions and have there their seasonal forays. The  
establishment of forts in southern Labrador by Governor Palliser and his invitation  
to the Moravian Brethren to establish a mission along the north coast of Labrador  
were efforts to bring about this desired outcome.62  
60  
George Cartwright, A Journal of Transactions and Events During a Residence of Nearly Sixteen Years  
on the Coast of Labrador (1792) [CD 799].  
61Frank G. Speck, Beothuk and Micmac (1922), p. 118. See also, Charles A. Martijn, Innu  
(Montagnais) in Newfoundland, in Papers of the Twenty-First Algonquin Conference (William Cowan ed.  
1990) [von Gernet Supporting Documents, vol. 25, Tab 235].  
62 Drake Supporting Documents, Tabs 3 & 6.  
Page: 39  
[80] The only remaining natives on the Island of Newfoundland, the Mi'kmaq,  
were for centuries erroneously regarded as having been brought to Newfoundland  
by the French to aid in the extermination of the Beothuk. An influx of Mi'kmaq  
from Cape Breton in the late-18th and early-19th centuries may have coincided  
with the final stages of the demise of the Beothuk. But scholarly consensus is that  
the demise of the Beothuk can be traced to other factors, including European  
diseases and a forced withdrawal from summer coastal settlements.63 The  
Defendants refer to an alleged oral tradition of the Beothuk, transmitted to Bishop  
John Inglis and William Cormack in the 1820s by the Beothuk Shawnawdithit, and  
noted by Marshall, p. 47, that the Mi'kmaq had by that time been "visitors here [in  
Newfoundland] for centuries."  
[81] The Defendants contend that by the time Europeans began venturing into the  
interior of Newfoundland in the 18th century they found the Mi'kmaq firmly  
established there. Practicing a mixed subsistence economy, supplemented by a  
modicum of 'cash' income (usually taken up in the form of goods such as guns and  
powder, flour and salt pork) from furring and woodswork, the Mi'kmaq were able  
to retain an independent lifestyle and distinctive culture at several village locations.  
[82] Expert witnesses on both sides testified the Mi'kmaq indeed had the  
technology and the skill to journey to Newfoundland by sea in the pre-contact  
period, as evidenced by their pre-historic contact with the Magdalene Islands and  
many accounts of Mi'kmaq sea-voyages by canoe from the early historic period.  
Dr. von Gernet, however, emphasized his view that the Mi'kmaq would have had  
no motivation to journey to Newfoundland in the pre-historic period and that it was  
the presence of Europeans that motivated Mi'kmaq journeys in the historic period  
"in search of priests and presents." Dr. Prins on the other hand maintained that the  
record of the early historic period depicts the Mi'kmaq as a people accustomed to,  
and capable of, acting from their own cultural and economic imperatives, which  
included periodic extensions of their hunting, fishing and gathering activities in a  
“rotational foraging strategy”.  
63 See, Olaf Uwe Janzen, “Handcock, Marshall, and Breakwater Books” (1991), 7 Nfld. Studies  
65, p. 72, Cuff Supporting Documents, vol. 2, Tab 8] and authors there mentioned, including Ingeborg  
Marshall, A History and Ethnography of the Beothuk (1996) pp. 47-49 [von Gernet Supporting  
Documents, vol. 24, Tab 232].  
Page: 40  
[83] The importance of the "contact" issue and the date of contact is rooted in the  
fact that beginning about 1500 A.D. profound cultural changes occurred in the  
cultural institutions that governed specific native societies. The Defendants submit  
this is based on a view that Amerindians encountered a technological and social  
order that was profoundly different from their own and were unable to resist the  
strong material and social incentives for interacting with Europeans. It is also often  
assumed that the nature of these interactions were similar irrespective of  
geography, native culture type and the specific nature of the European group.  
[84] The Defendants submit the initial period of European contact in northeastern  
North America commenced with the Norse voyages at the end of the first  
millennium and lasted until the 1550s. This period is characterized by discrete,  
sporadic and unpredictable visits by European ships. The nature and extent of  
contact in this era is difficult to reconstruct from surviving sources.  
4.  
The Protohistoric/Early Historic Period  
[85] Several expert witnesses tempered their conclusions with a caveat about the  
difficulties involved in reconstructing the early history of North American native  
peoples from European documents. Some of the difficulties in interpretation that  
were raised, both in experts' reports and in evidence, include: ethnocentric bias,  
imprecision in indicators of geographic location, temporal variation in  
nomenclature, and a general dearth of surviving records that is most pronounced in  
the earliest periods - precisely when Mi'kmaq presence in Newfoundland is most  
contentious in the present case. It largely fell to Drs. Prins and von Gernet to  
interpret a broad range of documents, first brought to the attention of the  
community of scholars by Dorothy Anger and Charles Martijn in the 1980s.64  
[86] The expert report of Dr. Laurier Turgeon reviewed documentary evidence of  
French activity on or near the south and west coast of the island of Newfoundland  
during the period 1508-1655, by employing a database of French notarial records,  
particularly the records of the French port of Bordeaux. The Defendants point out  
64Dorothy Anger, Noywa’mkisk (Where the Sand Blows): Vignettes of Bay St. George Micmacs  
(1988); Charles A. Martijn. An Eastern Mi’kmaq Domain of Islands (1989) [von Gernet Supporting  
Documents, Tabs 9 and 234].  
Page: 41  
none of the notarial records cited by Dr. Turgeon identified Fortune Bay, Bay  
d'Espoir, St. Pierre, Chapeau Rouge, Cape Ray, Bay St. George or indeed any  
harbour or locale in southern Newfoundland west of the Avalon Peninsula as a  
place where the French were fishing. Dr. Turgeon testified that this "could be an  
indication that there's not very much [in terms of a European fishery] going on in  
these places". The Defendants note his expert report further suggested that the  
Burin Peninsula, Fortune Bay, and St. Pierre were known to be the preserve of  
fishers from the Breton port of St. Malo rather than Bordeaux, but that for many  
ports, including St. Malo, notarial records for the relevant period are no longer  
available. The Defendants argue that Dr. Turgeon's conclusions as to what notarial  
records can tell about trade or direct contacts with Mi'kmaq or other Amerindians  
on the south coast must be tempered by the knowledge that his "Southern Coast of  
Newfoundland" would appear to be merely the port of Placentia and east -- with no  
direct bearing on the geographic area in which the Defendants claim a Mi'kmaq  
presence. The Defendants note Dr. Turgeon's statement that in 1661 "French  
fishermen occupied the entire southern coast of Newfoundland, from Trepassez  
Bay to Bay Despair" was acknowledged to have been based on a misinterpretation  
of the source cited.65  
[87] The earliest known reference to the possible presence of Mi'kmaq in  
southern Newfoundland occurs in the third volume of a collection of travel  
literature, published in 1556 by Italian scholar Ramusio,66 which includes an  
account of a voyage to several parts of the world, including Newfoundland,  
apparently made at some time in the 1520s or 1530s by the Parmentier brothers of  
Dieppe, France. Most authorities believe this account to be the work of Pierre  
Crignon, an associate of the Parmentier's. It reads in part:  
From the said Capo di Ras the coast runs east and west 100 leagues to  
Capo di Brettoni... Between Capo di Ras and Capo di Brettoni live a  
cruel and austere people, with whom it is impossible to deal or to  
converse. They are of large stature, dressed in the skins of seals and other  
savage animals tied together, and are marked by certain lines made by  
65Recensement des havres et galets de la cote du Chapeau Rouge fait par les maitres, contre-  
maitres et mariniers de St.-Malo (1662) [CD 69].  
66Bernard G. Hoffman, Account of a Voyage Conducted in 1529 to the New World, Africa,  
Madagascar, and Sumatra, Translated from the Italian, with notes and comments(1963) [CD 18], pp. 13-  
14.  
Page: 42  
applying fire to their faces, and are as if striped with a colour between  
black and brown... .  
Crignon goes on to describe a second native group in Newfoundland:  
On the coast running north and south above Capo di ras, as far as the  
entrance to the Castelli [Strait of Belle Isle] ... The land is more sparsely  
inhabited than the before-mentioned coast, and the inhabitants are  
smaller, more humane, and friendlier than the others... .  
Crignon is of specific interest in providing an early indication that more than one  
native group was present on the Island of Newfoundland. The Defendants submit  
the most likely explanation is that the bellicose people of the south coast, who had  
tattoos or face-painting, were Mi'kmaq and that the more northerly people were  
Beothuk.  
[88] A further reference to an aggressive people present in southern  
Newfoundland comes from navigator Jean Alfonse,67 who wrote a set of sailing  
directions in 1544, drawing not only on his own observations as a member of the  
1542 Roberval expedition to the St. Lawrence River, but also on information  
provided by others. His "Cosmographie" contains sketch maps of coastal areas in  
what is now eastern Canada, demonstrating the common knowledge at the time that  
Newfoundland (la terre-neufve) was an island, based on the voyages of Jacques  
Cartier in 1534 and 1535-36. Concerning the native inhabitants of Newfoundland,  
Alfonse states:  
The People of this coast [the Gulf of Maine and Nova Scotia -- from  
context] are evil persons, strong, great archers, and subsist on fish and  
meat, and have a language and speak almost the same tongue as those in  
Canada and are a tall people. And those from Cape Breton make war  
upon those of Newfoundland when they go fishing.... .  
[89] In his expert report and subsequent testimony Dr. Harald Prins maintained  
that reference to two native groups either residing in or habitually traveling to  
Newfoundland in the 16tth century was, on the balance of probabilities and  
considering varied contextual information, a reflection of a Mi'kmaq and Beothuk  
presence on the Island in the early historic period. The works of Marc Lescarbot, a  
lawyer who lived at Port Royal 1606-07, contain statements which the Defendants  
67Quoted in Charles Martijn, Historical Review, note 55 above, 5.3.3, pp. 4-5.  
Page: 43  
say strongly suggest that he associated Mi'kmaq with Newfoundland. He stated in  
1610 “The people who are at Port Royal, and in the adjacent countries extending  
toward Newfoundland, are called Souriquois and have a language of their own”.68  
[90] The Defendants argue any ambiguity as to what Lescarbot meant by this  
passage is cleared up by a second statement later in that same year when he  
referred to the Eastern Mi'kmaq in these general terms:  
... the following is an example of their way of living: from the first land  
(which is Newfoundland) to the Country of the Armouchiquois  
[Abenaki], a distance of nearly three hundred leagues, the people are  
nomadic, without agriculture, never stopping longer than five or six  
weeks in a place.69  
[91] The Defendants submit that since Lescarbot and his informants were almost  
certainly unacquainted with the Beothuk and their habits, this specific reference to  
Newfoundland can only apply to the Mi'kmaq. In addition, say the Defendants,  
Lescarbot's statements serve as context for Father Pierre Biard's later declaration in  
1616, that:  
I have often wondered how many of these people there are. I have found  
from the Accounts of the Savages themselves, that in the region of the  
great river, from Newfoundland to Chouacoët, there cannot be found  
more than nine or ten thousand People. The Souriquoys [Mi'kmaq], in  
all, 3000, or 3500" .70  
[92] The Defendants argue that by the same token Lescarbot’s statements should  
influence the interpretation accorded to another statement, in 1611, by Father  
Biard71 to the effect that the Mi'kmaq, in conversations with the French, called  
Newfoundland Praesentis [Placentia], and to Samuel de Champlain's statement that  
"the savages sometimes in summer cross over from the mainland to see vessels  
engaged in the cod-fishery".72  
68Thwaites, 1959, The Jesuit Relations, vol. I, p. 73.  
69 The same, p. 83.  
70  
The same, vol. III, p. 109 and 111.  
71 The same, vol. II, p. 67  
72  
Henry P. Biggar, ed., The Works of Samuel de Champlain, vol. 5 (Toronto: The Champlain Society,  
1922-36), p. 160 [Province’s Historical Documents, vol. 3, CD 54].  
Page: 44  
[93] Further documents which the Defendants contend indicate Mi'kmaq  
familiarity with Newfoundland in the early 1600s were discussed by Drs. Prins and  
von Gernet. During a 1602 voyage to Virginia by Captain Bartholomew Gosnold a  
native trading vessel was encountered in the Gulf of Maine. The natives, who were  
in a European shallop and dressed in part in a European manner, are presumed by  
most scholars to have been Mi'kmaq. "[T]hese with a piece of Chalke described the  
Coast there-abouts, and could name Placentia of the Newfoundland...".73 The  
context in which the name Placentia came up is unclear. The Defendants submit  
the most likely explanation is that in drawing the chalk sketch map this location  
was identified as a point of reference to ensure comprehension by the English. The  
Defendants argue the geographical knowledge suggests personal familiarity with  
Newfoundland and that this interpretation is reinforced by Father Biard's noting, a  
decade later, that in conversation with the French the Mi'kmaq referred to  
Newfoundland as Praesentis, a name derived from Placentia/Plaisance.  
[94] The next set of documents relied on by the Defendants come from the period  
1662 to 1714.  
5.  
Mi’kmaq and French in Newfoundland (1662-1714)  
[95] In his expert report concerning this era, Dr. Frederick Thorpe stated: "By  
1650 French settlers were scattered along the coast from Trepassey Bay to Cap des  
Espoirs" (citing French historian Charles de la Morandiere).74 Dr. Turgeon's report  
cites the same source to support a statement that “in 1661... French fishermen  
occupied the entire southern coast of Newfoundland from Trepassez to Bay  
Despair." Under cross examination, Dr. Turgeon agreed that the source refers to  
"Cap des Espoirs" rather than "Bay," that this Cape appears to have been on the  
east coast of Newfoundland, bearing no relation to Bay d'Espoir, and that la  
Morandiere's text offers no evidence at all of settlement or occupation of the  
southern coast of Newfoundland in 1661.  
73Gabriel Archer, The Relation of Captain Gosnolds Voyage (1602) [CD 42]; John Brereton,  
Notes of the same Voyage [CD 43], pp. 96-101.  
74Charles de la Morandiere, Voyage of the Grace of Bristol (1594) [CD 38].  
Page: 45  
[96] After the French decided to fortify and establish a colony at Plaisance  
[present-day Placentia], settlement was confined initially to the area around the  
fort. Eventually French settlement spread throughout Placentia Bay, and by the  
1680s beyond Chapeau Rouge (the western headland of Placentia Bay, just outside  
present-day St. Lawrence) to St. Pierre. As with so much in the early years of the  
French colony, certain knowledge of the frontier of settlement is hampered by a  
scarcity of records. Of the Governors appointed to Plaisance prior to 1685, and  
their administrations, we know very little – not even in several cases the full names  
of officials or the dates when they were actually present in Newfoundland. The  
Defendants suggest those few reports which do survive – those of Thalour du  
Perron in 1662 and 1663, and de Palme (or la Palme) in 1667 – are preoccupied  
with the state of the fortification that the Governor found on arrival at the town and  
garrison of Plaisance, rather than being informed assessments based on residence  
in the colony. De Palme’s successor, La Poippe, was Governor for 15 years, for  
which period virtually no report from Plaisance has survived. There was a census,  
of the port of Plaisance only, in 1671 and another in 1673.75 Table 1 is a summary,  
prepared by the Defendants, showing the Governors, Governors’ reports, clergy  
reports, references to St. Pierre, references to Indians, and census years. The  
Defendants point out that up to 1685, 35 years after the beginning of Dr. Thorpe's  
period of investigation, the only French primary documents cited are:  
-
-
-
The census (of Placentia proper only) of 1671 and that of 1673;  
a Malouin survey of fishing rooms at Chapeau Rouge in 1662;  
4 reports of Governors, all of which are reports of the colony's state (most  
specifically with respect to fortifications) on the Governor's arrival rather  
than being based on experience in the colony; and  
-
a report of Thalour du Perron's murder.  
Table 1: Plaisance and the Mi’kmaq 1650-1695  
Year  
1650  
1651  
1652  
Governor  
Govs’ Rpt?  
Clergy Rpt? St. Pierre  
Indians?  
Census  
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
75  
Thalour du Perron, Governor of Plaisance (letter, 1662) [CD 72]; Thalour du Perron, Governor of  
Plaisance (letter, 1662) [CD 75]; de Palme, Governor of Plaisance, to Colbert, Minister of Marine (1667) [CD 82];  
“Captain Taverner’s Second Report” (1718) [CD 299], p. 231.  
Page: 46  
1653  
1654  
1655  
-
-
-
-
-
-
-
-
-
-
-
-
-
Sr. Kereon  
(never took  
appointment)  
1656  
1657  
1658  
1659  
1660  
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
N Gargot  
(never  
-
confirmed)  
Year  
1661  
1662  
Governor  
-
Govs’Rpt?  
Clergy Rpt? St. Pierre  
Indians?  
Census  
-
-
-
-
-
-
-
du Perron  
CD72  
FJTn18  
(18 fish  
(fishing)  
rooms, no  
ref. settlers)  
1663  
died Feb  
(CD75  
-
-
-
-
(murder)  
1664  
1665  
1666  
1667  
1668  
1669  
Bellot  
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
Bellot  
-
-
-
“
-
de Palme  
CD82  
-
“
-
-
-
-
-
La Poippe  
CD84  
1670  
1671  
“
-
-
-
-
Placentia  
only  
1672  
1673  
“
-
-
-
-
-
-
-
-
“
-
Placentia  
only  
1674  
1675  
“
“
-
-
-
-
-
-
-
-
-
-
Page: 47  
clergy,  
appointed but  
no reports  
1676  
“
-
-
-
-
1677  
1678  
1679  
1680  
1681  
1682  
1683  
1684  
Year  
1685  
1686  
“
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
“
-
-
-
“
-
-
-
“
-
-
-
“
-
-
-
“
-
-
-
“
-
-
-
-
“
Governor  
Parat  
“
-
-
Govs’ Rpt?  
CD102/5/6  
CD111/2  
Clergy Rpt? St. Pierre  
Indians?  
Census  
-
(Parat at St.  
Pierre, need  
for priests, no  
report from  
clergy)  
-
-
-
1687  
1688  
1689  
“
“
“
CD117/8  
-
-
-
pop 76  
Y-3 census  
pop 638  
-
-
-
-
-
(parish est, no  
reports)  
CD121  
1690  
1691  
1692  
1693  
1694  
“
-
-
-
-
-
-
-
-
-
-
-
de Brouillan  
FJTn56  
-
Placentia  
“
“
“
Y
Y
CD134  
-
Y
-
-
CD143/48  
Y
Placentia  
(unwarlike)  
1695  
“
Y
-
-
(Turbis  
CD151)  
[97] For the decade 1685-95, there are Governors' reports surviving, some being  
more detailed than others. For the first time a very few reports in (1686 and 1694)  
touch on Fortune Bay. It is also in this period that we get the first indisputable  
accounts of “sauvages” living on the fringes of the colony. The Defendants point  
Page: 48  
out that the three 1687 census Indians (see para 103 below) and the 1695 Turbis  
murder (see para 104 below) are not recorded in the everyday records of Plaisance.  
Later surviving reports of the period are dominated by those having to do with  
military campaigns rather than the few settlers. Dr. Wicken wrote:  
... understanding Mi'kmaq occupation of southern Newfoundland is  
hampered by the paucity of source materials before 1700. Indeed, it is no  
accident that the clearest evidence regarding a Mi'kmaq presence stems  
from the late 1600s and early 1700s, a period which witnesses the  
escalation of French and British Imperial ambitions in the region. As  
both nations exhibited a keener interest in securing control over the  
fishery, so too did the number of men and monies they were willing to  
expend to realize that ambition. As a result, both nations dispatched a  
larger official presence to the region, precipitating more contact with the  
region's inhabitants. From these contacts, came more letters sent back to  
London and Versailles than ever before. This change in the region's  
political conjuncture was as much true for Newfoundland as it was for  
Acadia.76  
[98] The Defendants argue that from the sparse body of records actually  
generated in Plaisance from 1662-1685 it is difficult to reach firm conclusions  
concerning the extent to which French settlement spread beyond Placentia itself,  
concerning the existence of a fur trade, or concerning the presence of Amerindians  
in the colony. There are, however, three relevant English records from eastern  
Newfoundland, contemporary with the poorly-documented early decades at  
Plaisance. In 1670 one John Mathews of Ferryland reported that in 1662 he had  
been despatched by the deputy governor at the English colony of Ferryland to St  
Mary's "to bring one Mr Russell ye Inhabitant their & the masters of the Indians  
(who came to Kill Beavers & other beasts for ffurs)... to answer & give an account  
of their accons for makeing an attempt upon ye Island...".77 In 1676 John Downing  
of St. John's recounted information provided to him in that year by an Irish  
merchant, John Aylred "that p[ar]t of the land where the french ports are, as  
Placentia, St Peters and the rest no Indians come but some Canida Indians, from  
the port of Canida in french/ Shalloways, with french fowling peices, all spared  
them by the French of Canida...".78 Further in 1680 an English clergyman, John  
76  
Wicken, Expert Report, p. 16.  
77John Matthews, Concerning the French in Newfoundland (1670) [CD 83].  
78John Downing, A Brief Narrative Concerning Newfoundland (1676) [CD 94].  
Page: 49  
Thomas, writing from Bay Bulls mentions "The Ancient Nations who formerly in a  
wilde manner possessed this Land, are mear Salvadges, tawny and Naked; till that  
some are now clothed, since they have some doings with New England men."79  
These unnamed Indians are described by Thomas as enemies of the English and  
having commerce with the French.  
[99] These three references were dealt with at length by Dr. Prins and Dr. von  
Gernet, in expert reports and testimony. Both dismissed notions that the documents  
could be referring to the Beothuk. Dr. Prins concluded that these Indians were most  
likely Mi'kmaq and that the reports, read together, suggested an ongoing presence.  
Dr. von Gernet concluded records indicate that Thomas probably never saw any  
aboriginals first hand and could have been referring to Innu at the Petit Nord (the  
Great Northern Peninsula of Newfoundland); that the Indians noted at Placentia  
and St. Mary's could have been brought by the French from Quebec and were not  
necessarily Mi'kmaq; and that, when placed in the context of other contemporary  
evidence from Placentia, Mathews, Downing and Thomas must be viewed with  
circumspection.  
[100] Beginning with the governorship of Antoine Parat in 1685, more regular  
reports are available from the colony of Plaisance. In 1686 Parat visited Cap Negre  
[Great Harbour, Connaigre] and L’hermitage [Hermitage]. His report from there,  
concerning how the inhabitants committed to support a priest to be stationed at Cap  
Negre, is the earliest first hand report from the north side of Fortune Bay (a coast  
in some proximity to the Bay du Nord Wilderness Area) in the surviving  
documentation.80 The Defendants note that this report comes a century and a half  
after Jacques Cartier. The following year (1687) Parat submitted a census of the  
whole Plasiance colony, indicating a population of 640 in specified fishing  
stations, the majority being indentured fishing servants. The population recorded  
on the north side of Fortune Bay, consistent with Parat's report of five fishing  
establishments in 1686, indicated a population of 139, 119 of whom were male  
79  
Letter to Sir Richard (?) from Bay Bulls, September 15, 1680 (Codrington Library, All Souls College,  
Oxford, Wynne Collection, MS 239, ff 229-30v) [Defendants Historical Documents, vol. 12, Tab 6].  
80Antoine Parat, Report of the installation, at the request of the settlers of Cap Naigre,  
Lhermitage and Havre Bertrand, of a priest whose up keep they shall be required to pay (1686) [CD  
107].  
Page: 50  
servants. With one exception all nine of the women and children (as well as a  
priest) were at Cap Negre.81  
[101] There is no indication in the records of the French colony as to when these  
pioneer settlements were founded. By the 1691 census the village of Cap Negre  
had been abandoned. Subsequent census figures for the north side of Fortune Bay  
(1693, 1694, 1698, 1711) indicate that only Hermitage continued, occupied by two  
or three people -- no fishing servants, and no families.82 There was a single man at  
Harbour Breton until 1694, but not thereafter. There are also indications that Simon  
Bellorme, who fished at St. Pierre, wintered at what is now Belleoram from 1694  
(in which year's census he is recorded at St. Pierre as a man “sans femme” and  
without servants).83  
[102] Dr. von Gernet suggested that references to Mi'kmaq in Fortune Bay in the  
early 1700s could be explained by their connection to French settlers in the area.  
The Defendants challenge this, noting the small number of settlers. In addressing  
the possibility of an unrecorded French-Mi'kmaq fur trade prior to 1714, Dr. von  
Gernet rejected Dr. Prins' explanation for the absence of French references to a fur  
trade (that the trade took place to the west, at Saint-Pierre and in the Fortune Bay  
area, and that the practice was too incidental to be reported in official documents).  
Dr. von Gernet stressed the unlikelihood of a significant and sustained Mi’kmaq  
presence escaping the notice of a French governor with an interest in fur-trading.  
[103] The 1687 census of French fishing stations in Newfoundland was compiled  
by Governor Parat after several reminders and the provision from France of "a  
model, to which you must conform exactly", the earliest known instruction to the  
Governors of Plaisance that specifically queried the presence of “sauvages”. The  
Parat census recorded three “sauvages”, not identified as to ethnicity, two adults  
and a boy at Plaisance itself.84  
81Fernand-D. Thibodeau, Recensement de Terre-Neuve, 1687-1704 (1962) [CD 956].  
82 The same.  
83Captain Taverner’s Second Report (1718) [CD 299].  
84Fernand-D. Thibodeau, Recensement de Terre-Neuve, 1687-1704 (1962) [CD 956]. Minister to  
Parat (1687) [CD 115].  
Page: 51  
[104] A second reference to an extended Indian family, living in this case near  
Plaisance, was also discussed by experts from both sides. The Turbis family, in one  
of the earliest known uses of the ethnonym anywhere in what are now the Atlantic  
Provinces of Canada, are identified as "micmas." The Defendants submit the  
Turbis family appear in the records generated by the Plaisance colony only because  
family members were murdered by two French deserters, resulting in a  
court-martial.85 Dr. Prins concluded this record, read with others such as the 1687  
census and given that there were apparently other members of this extended family  
in addition to the 10 members either murdered or assaulted in this incident,  
suggests a Mi'kmaq presence in the French colony, which is otherwise not reflected  
in the official record and one which was not likely limited to three individuals in  
1687 and 11 in 1695. Dr. Thorpe saw the Turbis family as an "isolated case," while  
Dr. von Gernet suggested that they "need not have been part of an established local  
group”.  
[105] The Defendants suggest one possible explanation for the contraction of  
French settlement in remote areas after 1687 could lie in the outbreak of war in  
1689. From 1689 to 1697 and 1702 to 1713, France and Britain were at war. Even  
in the interim, in Newfoundland, an uneasy peace hampered the fishery and  
thwarted European settlement. There were raids and skirmishes in Newfoundland  
during these wars, including several in which Mi'kmaq fought the British during  
the War of the Spanish Succession (1702-13). The Province contends a suggestion  
by Governor de Brouillan that 150 sauvages be sent to Placentia from Acadia86 and  
a letter about the discovery of “unwarlike” sauvages on the south coast who flee  
from Europeans indicate de Brouillan did not have a local force of aboriginals  
available.  
[106] References to a Mi'kmaq presence in Newfoundland become much more  
frequent during the 18th century, coincident with a more voluminous documentary  
record (although one preoccupied with military and strategic considerations rather  
than settlement). On October 22, 1705 Governor Subercase of Placentia reported  
that 20 to 25 Mi'kmaq families had crossed over to Newfoundland from Cape  
Breton in July of that year. Subercase implies that this arrival was unexpected and  
further that it was motivated by Mi'kmaq subsistence rather than being a French  
85“Sentence of court-martial, Plaisance” (1695) [CD 151].  
86  
Letters from de Brouillan to the Minister, 1694 [CD 143 and CD 149].  
Page: 52  
strategic initiative: "They are abandoning that land [Cape Breton] in order to give  
the moose, and other animals on which they have been subsisting, time to  
regenerate."87 Governor Subercase subsequently engaged Mi'kmaq warriors to  
serve in the war against the English. In 1706 an additional 20 families of Mi'kmaq  
came over to St. Pierre. From 1706 to 1708 these Mi'kmaq are recorded as having  
used seasonal base camps, including St. Pierre and an unspecified locale in inner  
Fortune Bay, from where they hunted, trapped and carried out overland sorties  
against the English as far north as Bonavista. This situation differed from previous  
occasions when the French in Newfoundland recruited and employed native  
warriors, including Abenaki and Mi'kmaq, in expeditions against English  
settlements on the eastern Avalon Peninsula.  
[107] Unlike those earlier occasions in the 1690s, when there were French military  
or religious authorities attached to French/Indian/Canadian raiding parties in  
Newfoundland, we have no eyewitness accounts as to how these Mi'kmaq families  
moved about, and subsisted, on the land. We do learn that Subercase's successor,  
Governor de Costebelle, was not able to exert direct military control over the  
Mi'kmaq "given that this sort of nation was free to roam the forests like wolves and  
bears" and eventually sought to have them sent to Cape Breton.88 By 1708 some  
Mi'kmaq had returned to Acadia.  
[108] In 1714 and 1715 William Taverner conducted a survey of Placentia Bay,  
the Burin Peninsula, the islands of St. Pierre and Miquelon, and parts of Fortune  
Bay and Hermitage Bay - territories recently acquired by Great Britain under the  
terms of the Treaty of Utrecht. Taverner was charged with making  
... Surveys of the of the Coast of Newfoundland where the French used  
to Fish, and with Our Subjects are at Present unacquainted... And  
Whereas We are informed that the French as well from their Settlements  
on Newfoundland as from Canada have driven a considerable Trade with  
the Nations of Indians inhabiting the aforesaid Island ... You are further  
to use your utmost Endeavours to gain the said Trade to Our Subjects...  
89  
.
87Subercase to the Minister (1705) [CD 200].  
88Costebelle to Minister (1707) [CD 218].  
89Board of Trade, “Additional Instructions to William Taverner” (1713) [CD 266].  
Page: 53  
[109] In July-October 1714 Taverner primarily surveyed St. Pierre and Miquelon,  
as well as the Burin Peninsula ports of Grand Bank and Fortune, spending a week  
in Hermitage Bay. Taverner did not enter Bay d'Espoir, nor the inner recesses of  
Fortune Bay. He did report that fish and furs were traded at St. Pierre by holdover  
French inhabitants of "the Baye de Espere" [from context what is now Hermitage  
Bay, rather than Bay d'Espoir in the modern sense], Cap nigro, Grand Bank,  
Fortune, Courbin &c".90 Taverner does not record any encounter with Indians at St.  
Pierre or in Hermitage Bay (where he was from July 27th to August 4th). However,  
on returning to Placentia he "hired a Canadean for his Majtys Service who speaks  
the Indian Language very well, that when I meet with any Indians I may the better  
settle a Commerce with them."91  
[110] Despite Taverner's expectation that Indians were likely to be encountered in  
the following season's continuation of his survey, this was not the case. In fact in  
1715, owing to poor weather and the loss of his ship, Taverner was unable to go  
even as far west as he had the previous season. He did submit a "Second Report"  
which incorporates, from his own wartime experiences on the coast and from  
details provided by others, a rough description and resource inventory of Fortune  
Bay, Hermitage Bay and Bay d'Espoir. He also provided a description of  
Newfoundland's west coast from a Basque fishing captain, presumably met at St.  
Pierre. Taverner's (admittedly second hand) information is in many cases the  
earliest indication of European activity on the coasts adjacent to the Bay du Nord  
Wilderness Area. He notes having been informed by the French that certain  
harbours are good for hunting of "deer" [caribou] and "Bay de North East"  
[modern-day Bay d'Espoir] as good for timber, seals and furs. Taverner also  
includes what may be the earliest description of the area at the mouth of the Bay de  
Nord River:  
Bay de Noor, is the best place in all those Bays, for Deer, and Seale, The  
french Yearly took a great many in that Bay, the hunters told me that in  
90William Taverner, “Report” (1714) [CD 278] p. 260v. Olaf Janzen. “William Taverner as  
Witness to Permanent Inhabitancy on Newfoundland’s South Coast” (1995), pp. 4-6, [Janzen Supporting  
Documents, vol. 2, Tab 11].  
91  
Taverner, “Report” (1714), [CD 278], p. 261v.  
Page: 54  
the Bottom of it, the Country is so plaine, that it's like a Corne ffeild or  
Meadow".92  
[111] The Defendants submit this notation as to Bay du Nord being surrounded by  
flat land calls into question either the veracity of his informant, or whether  
Taverner's "Bay de Noor" was indeed modern Bay du Nord, which is remarkably  
hilly and rugged. In any case, Taverner was not informed that either "Bay de Noor"  
or "Bandalore" [Belleoram] was a locale for the trapping of furs, the closest  
sources of furs cited being English Harbour [East] and Cape Negro [Connaigre],  
each more than 50 kilometres from the Bay du Nord River and each in the  
Defendants’ view, with no feasible river or overland access to the Bay du Nord  
Wilderness Area.  
[112] The Defendants submit Taverner's identification in 1714 of various locales  
as being employed by the French for hunting and furring may reflect a quite recent  
phenomenon then among European fishermen in Fortune Bay rather than a practice  
of any antiquity. Other sources note that in 1711, suffering from an English  
blockade and a poor fishery, 130 French settlers and fishing servants of Plaisance  
had been turned out into the woods to fend for themselves.93  
[113] Taverner records that he was credibly informed by a Basque captain  
“That in the Mo of Septembr last came from Cape Bretton a great many french  
ffishermen, to furr, and hunt, the Winter Season, some of them as farr to the  
Eastward as the Bay de Espere [Hermitage Bay], which I have markt in my Chart,  
the Indians of Cape Britton, Freqtly hunt, and takes furrs on the coast of Cape  
Ray... .94  
[114] He appends further information from the Basque captain that (presumably in  
addition to Mi'kmaq frequenting Cape Ray) "The harbour of Langwile [Codroy] is  
very good for salmon fishing as for Cod... There is very good woodes abundance  
92“Captain Taverner’s Second Report” (1718) [CD 299], p. 232. See also Olaf Janzen “William  
Taverner as Witness to Permanent Inhabitancy on Newfoundland’s South Coast” (1995) [Janzen  
Supporting Documents, vol. 2, tab 11].  
93John Humphreys, Publications in History, No. 3: Plaisance (1970), p. 7 [von Gernet  
Supporting Documents, vol. 19, Tab 186]; Durand la Garenne to Minister (1711) [CD 247]; De  
Costebelle to Minister (1711) [CD 248].  
94Taverner’s Second Report, above note 83, p. 237v.  
Page: 55  
of Geese and Deer the Savages of Cape Britton sometimes frequent this harbour  
but not often".95  
[115] The next set of documents relied on by the Defendants come from the period  
1714 to 1763.  
6.  
British Activity and References to Native Peoples in  
Newfoundland 1714-1763  
[116] In considering the historical record as to British activity in southern and  
western Newfoundland in the half-century between the Treaty of Utrecht and the  
Treaty of Paris, the Defendants’ outline in tabular form, compiled from references  
in the annual Schemes of the Fishery and Heads of Enquiry (discussed below at  
note 689), is useful. Table 2 (below) plots available references to Beothuk and  
Mi'kmaq, references to naval patrols of southern Newfoundland, as well as the few  
references in the documents to English fishermen west of Placentia and to English  
activity at St. Pierre. The numbers under the headings “Scheme” and “Heads”  
refer to the CD (Court Document) number.  
Table 2: References to Native Peoples and Europeans in Southwestern Newfoundland 1714-1763  
Year  
1714  
1715  
Navy  
Patrol  
Scheme  
Heads  
Fishery W St. Pierre? Beothuk?  
Placentia  
Mi’kmaq?  
-
-
-
-
-
278  
Taverner  
“no truck”  
Cape Ray &  
Adjnt  
Cape  
Ray/Angwile  
279  
299  
Taverner  
“
1716  
1717  
1718  
1719  
1720  
Y
-
-
-
-
295  
-
-
Gaudy  
-
-
-
-
-
-
-
-
N
-
-
-
-
-
297  
307  
-
-
-
-
-
312  
-
Mi’kmaq off near  
Bonavist  
@St. Pierre  
318  
1721  
-
-
-
-
-
-
-
95The same, pp. 240v.  
Page: 56  
1722  
1723  
1724  
1725  
1726  
1727  
1728  
1729  
1730  
-
-
-
-
-
-
-
-
-
321  
-
320  
326  
327  
331  
-
-
-
-
-
-
-
-
-
Skeffington  
Gaulin:324  
-
-
-
-
-
-
328  
-
French  
Skeffington  
-
-
-
-
-
-
-
-
-
-
334  
-
-
-
Taverner  
338  
-
-
-
-
-
343  
347  
346  
@desgraules  
351  
-
Mi’kmaq  
near  
1731  
1732  
-
-
352  
354  
-
“neglected”  
-
-
-
-
-
-
355  
“did not  
comply”  
Year  
Navy Patrol Scheme  
Heads  
Fishery W  
Placentia  
St. Pierre?  
Beothuk?  
Mi’kmaq?  
1733  
1734  
-
-
356  
362  
-
-
-
“no traffick”  
“
-
Y
336  
Portobask  
@Cape Ray  
359  
1735  
1736  
-
-
367  
368  
364  
369  
-
-
“
-
-
“some  
places..great  
-
-
fishing”  
1737  
1738  
1739  
-
-
-
-
-
-
-
-
-
-
-
-
-
-
371  
372  
-
373  
St. Pierre &  
LaPoile  
-
“no traffick”  
1740  
1741  
-
-
375  
377  
374  
378  
“
-
-
“
“
-
-
St. P. Lapoile  
& Mortier  
St. P. “no  
scheme from  
thence”  
1742  
-
379  
380  
-
-
-
-
1743  
1744  
-
-
381  
-
St. P. “not  
returned”  
-
-
“no traffick”  
-
-
-
-
-
Page: 57  
St. P. “no  
fishing there”  
1745  
1746  
-
-
385  
387  
-
-
-
-
-
-
-
St. P. “no  
fishery”  
@White  
Bay CD388  
1747  
-
-
-
-
-
-
Overwinter  
CD914  
1748  
1749  
-
-
390  
392  
389  
-
-
-
-
“no traffick”  
-
-
-
Maillard  
CD439  
1750  
-
397  
-
St. P. “no  
account”  
-
-
-
“no account”  
“no account”  
Yes - 423  
1751  
1752  
1753  
1754  
Year  
-
-
-
-
400  
405  
423  
426  
401  
-
-
-
-
-
-
406  
“
-
-
-
-
-
Yes - 426  
-
-
Navy Patrol Scheme  
Heads  
Fishery W  
Placentia  
St. Pierre?  
Beothuk?  
Mi’kmaq?  
1755  
1756  
1757  
1758  
1759  
1760  
1761  
1762  
1763  
-
-
-
-
429  
-
-
-
-
-
-
-
-
-
-
left blank  
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
445  
-
-
-
444  
450  
-
Yes - 444  
-
-
Yes - 450  
-
-
-
-
blank  
-
-
490  
503  
left blank  
-
Y
Indians at  
Codroy  
[117] The table shows nine years in this half-century (1716; 1721; 1726; 1728;  
1737; 1744; 1747; 1756 and 1761) in which no Commodore's or Governor's report  
of the fishing season is filed and for which no "Scheme of the Fishery" or "Heads  
of Inquiry" has been found. In at least some cases it appears that no such reports  
were submitted to the Board of Trade or Admiralty, either because no Governor  
was appointed or the office-holder did not visit Newfoundland that fishing season.  
In 1747 Otho Hamilton of Placentia complained that a Governor had not visited  
Page: 58  
Newfoundland "these four years." Governor Richard Dorrill (1755-56) did not visit  
until August in 1755, remaining a little over a month with one ship only, and does  
not seem to have visited at all in 1756.  
[118] As noted by Dr. Janzen, there are only three recorded occasions (1716, 1734  
and 1763) when the Royal Navy ventured west of St. Pierre. It is not clear how  
often the Navy patrolled even as far west as St. Pierre in the half-century 1714 to  
1763. Neither is the extent of the English commercial presence at St. Pierre clear.  
A naval surveyor, Lt. Gaudy, was in St. Pierre in 1716 (but his spare journal offers  
no observations as to the presence or otherwise of migratory or resident fishermen  
at that time). There were naval ships at St. Pierre in the summer of 1763, at which  
time the islands were turned over to the French, but these are the only visits of the  
Royal Navy to St. Pierre or Fortune Bay documented with certainty.96 Because of  
the limited reports from St. Pierre for the period 1714 to 1763 and their  
irregularity and lack of detail, the Defendants argue the Court should avoid  
drawing negative conclusions as to the extent of Mi'kmaq (or indeed European)  
presence in Fortune Bay and southwestern Newfoundland.  
[119] After 1716 there is a stretch of more than two decades in which there is no  
record whatever of an English military, civil, religious, or commercial presence at  
St. Pierre in Schemes of the Fishery, Heads of Enquiry or other Admiralty or Board  
of Trade records pertaining to Newfoundland. The Defendants contend that, to  
1729, while Placentia was nominally under the jurisdiction of the Governor of  
Nova Scotia, there may have been some confusion as to whether that Governor had  
jurisdiction over the south coast. The Defendants submit that, when Placentia was  
removed from Governor Richard Phillips' jurisdiction and placed under the new  
Governor of Newfoundland, it was in a manner that leaves a question whether  
"Placentia" in this context meant merely the fort and town:  
Richard Philipps Governor of Placentia in Newfoundland, and Our  
Captain General and Commander in Chief in and over Our Province of  
Nova Scotia or Accadia in America, for and during Our Will and  
Pleasure and whereas we have since thought it necessary for Our Service  
that Newfoundland, Placentia and all other the Forts, Islands and Places  
thereunto belonging should be under the Gov. of one and the same  
Person and that a Gov. should be appointed there, to prevent the Great  
Irregularities outrages: Rapes, Felonies, Murders, and other heinous  
96  
Olaf U. Janzen, “The Royal Navy in Newfoundland, 1650-1770" [Janzen Supporting Documents, vol. 1,  
Tab 2.]  
Page: 59  
offences which are frequently committed in Our Island of  
Newfoundland, especially during the Winter Season, by wicked People,  
for want of proper persons legally authorized to restrain and punish such  
Offenders; Now Know you therefore that We have revoked determined  
and made Void, and by these presents do revoke, determine and make  
Void so much of the recited Letters Patents and every part, Clause and  
Article Herein contained, so far as the same members or relates to the  
Government of Our Garrison of Placentia or any other Fort, Place or Part  
of Our said Island of Newfoundland or the Forts or Garrisons erected or  
to be erected, there, or any the People or Inhabitants abiding or resorting  
thereto.97  
[120] In practice Placentia was the farthest port west visited during the Royal  
Navy's summer patrol of the Newfoundland fishery prior to 1763. Cmdr. Passenger  
noted in 1717, it was "the most exact account that I could possibly get, in that short  
time I was there wch. was less than two months, and 12 months would have been  
too short a time to have done it effectually, it being 110 leagues from Bonavist to  
Placentia...".98 Other occasional notations appear in Schemes of the Fishery to the  
effect that no reports are available from St. Peters [St. Pierre]. The only two  
appearances of St. Pierre in the records between 1716 and 1739 are those -- neither  
of which originates with the Navy - mentioning Mi'kmaq in the vicinity.99 In three  
years, 1739 to 41, Schemes of the Fishery do record a fishery at St. Pierre, perhaps  
suggesting a naval patrol (although in previous years, when the fishing admirals  
are blamed for not submitting reports, it is clear that it was expected that such  
reports would make their way to the nearest civil authorities, at Placentia). As Dr.  
Janzen writes, "the fishing admirals ... were understandably indifferent to the task,  
preferring instead to attend to their own priorities in Newfoundland, namely to  
catch and make as much fish as possible".100 In 1736 the captain of the Torrington,  
charged with investigating a reported French presence at Port aux Basques, did so  
97Letters patent to Governor Richard Phillips (1719), referred to in Report by F. Fane to Board of  
Trade (enclosure) 26 April 1730, at pp. 310-310v [CD 349].  
98“Answers to Heads of Enquiry” (1717) [CD 295].  
99Samuel Gledhill: letter to the Commissioners of Trade and Plantations (1720); de Bourville:  
letter to the Minister (1730) [CD 351. “General scheme of the fishery and inhabitants of Newfoundland  
in the year 1745" [CD 385]. General scheme of the fishery and inhabitants of Newfoundland in the year  
1746" [CD 387]. “General scheme of the fishery and inhabitants of Newfoundland in the year 1753" [CD  
423].  
100  
Janzen, Expert Report, para. 24.  
Page: 60  
from Placentia, some 250 miles distant. Thereafter there was "no fishery" reported  
at St. Pierre for some years (1745, 1746)101 and "no account" in others. The  
Defendants submit that, with the exception of the years 1739 to 41, it does not  
appear even remotely possible that there was any English naval patrol at St. Pierre  
prior to 1753 at the earliest.102  
[121] Similarly, the Royal Navy did not patrol the coast of Newfoundland north of  
Bonavista, which the Defendants suggest helps to account for the fact there is no  
useful or specific report of the Beothuk at all in the 18th century, prior to 1768,  
when Lt. John Cartwright goes into the interior in search of the "Red Indians."  
Other than negative reports of the Beothuk in Heads of Enquiry, most often given  
as the stereotypical answer "no traffick or Trade with the Indians," no sources  
specify locales where Beothuk were encountered from 1700 to 1768 and indeed  
there are very few references for the period: (1) In 1720 Cmdr. Percy notes that  
Indians "have been seen near Bonavist".103 (2) In 1722 and 1724 salmon fisher  
George Skeffington complains of his men having been killed and/or harassed by  
Indians in some unnamed northern harbour.104 (3) Ingeborg Marshall notes one  
further offhand reference to Beothuk, from the 1726 journal of Edward Burd: "The  
Indians are now pretty much worn out... still some towards the northward".105  
[122] In terms of records pertaining to the Mi'kmaq in Newfoundland during this  
era, the Defendants note there are more reports than for either the Beothuk, or  
European fishers in the area west of Placentia in that same era - eleven for the  
period 1714 to1763 (see Table 2). Locales identified include Cape Ray, Codroy,  
White Bay, off St. Pierre, and Isle Desgraules near St Pierre [Grole or Pass Island].  
Although the surviving records are too few to confidently offer a full picture of the  
Mi'kmaq presence in southern Newfoundland with geographical and seasonal  
variation, the Defendants’ expert historian, Robert Cuff, testified the records show  
101  
“General Scheme of the fishery and inhabitants of Newfoundland in the year 1745" [CD 385]. “General  
Scheme of the fishery and inhabitants of Newfoundland in the year 1746" [CD 387].  
102  
“General Scheme of the fishery and inhabitants of Newfoundland in the year 1753" [CD 423].  
103“Answers to Heads of Enquiry” (1720) [CD 312].  
104“Answers to Heads of Enquiry” (1724) [CD 327]; “Answers to Heads of Enquiry” (1725) [CD  
331].  
105Ingeborg Marshall, A History and Ethnography of the Beothuk (1996), note 63 above, p. 65.  
Page: 61  
during this period a Mi'kmaq presence to a far greater extent and over a much  
broader temporal and geographic range than either the Royal Navy presence or  
European settlement in southern Newfoundland.  
[123] One measure of both the range of the Royal Navy and the completeness of  
the British historical record concerning Newfoundland, is the manner in which  
French "deserters" from Ile Royale were able to establish a colony near Cape Ray,  
in southwestern Newfoundland, in the 1720s. Although the officers commanding  
the ships on the Newfoundland station were asked each year to determine whether  
the French were violating the Treaty of Utrecht by fishing on the Newfoundland  
coast and trapping for furs during the winter, no conclusive evidence could be  
found. The Defendants argue this does not prove that French fishermen were now  
avoiding Newfoundland but rather that the naval commodores never had enough  
ships to cruise the more remote parts of the island.106  
[124] The Defendants submit it is in the context of a rudimentary civil  
establishment limited to the east coast and the summer months, an absence of civil  
or religious authority in Newfoundland west of Placentia even during the summer  
fishing season, and the near-absence of military authority, that the available record  
of Mi'kmaq presence in the early 18th century must be viewed. Robert Cuff  
summarized the situation:  
As for the effective administration of the south and southwest  
1713-1763, it is difficult to support the notion that there was any at all,  
effective or otherwise. The system of winter justices after 1729 did not  
extend west of Chapeau Rouge, the proclaimed boundary of the district  
of Placentia. Naval officers on the Newfoundland station had some  
powers to adjudicate in relation to the fishery for the whole Island, but  
prior to 1764 there was no regular patrol of the station west of Placentia,  
if indeed there were any patrols at all of the coast between Chapeau  
Rouge and Port aux Basques.  
[125] Dr. von Gernet also emphasized the scarcity of documentary records of the  
Mi'kmaq in Newfoundland and Dr. Janzen stated:  
...[t]he official evidence in support of any argument for or against the  
presence on the south and southwest coasts of Newfoundland of  
106Olaf Uwe Janzen, “Une Grande Liasion: French Fishermen from Ile Royale on the Coast of  
Southwestern Newfoundland, 1714-1766 - A Preliminary Survey” (1987), 3 Newfoundland Studies 183  
[von Gernet Supporting Documents, vol. 20, Tab 194].  
Page: 62  
aboriginals from off the island of Newfoundland is ... admittedly slim.  
One is therefore obliged to draw conclusions based on circumstantial  
evidence and interpretation of what little information we do have.  
[126] Dr. Janzen's expert report drew conclusions based on his assumption that  
"[d]uring the decades after the Treaty of Utrecht, encounters with Micmac on the  
South Coast are not recorded until after 1763." The Defendants note, however, that  
in testimony Dr. Janzen acknowledged the existence of three records of a Mi'kmaq  
presence on the south coast which were put to him by counsel: 1720 (St. Pierre),  
1727 (Port aux Basques) and 1730 ("Desgraules").107  
[127] In 1720 Samuel Gledhill, Lieutenant-Governor at Placentia reported "there  
was two open Boats full of Indians seen from the Island of Saint Peters but  
supposed to be Only a Party a hunting from the Main for They have done no  
Damage."108 Experts from both sides agreed that these Indians were, on a balance  
of probabilities, Mi'kmaq, and that "from the Main" was in context Newfoundland.  
The Defendants note Dr. von Gernet admitted he was mistaken in his expert report  
in stating "[t]his is the only hint we have of Indians in the southeast during the half  
century [1714-1763] the French were dispossessed of St. Pierre."  
[128] In 1727 Governor de Brouillan of Louisbourgh reported the seizure of a  
Boston vessel by Indians at Port aux Basques, Newfoundland, in revenge for  
natives hanged the previous year at Boston.109  
[129] In 1730 de Bourville, a French functionary at Louisbourg, wrote that "I have  
this very moment [letter dated 14 December 1730] received a letter from M. de  
Lavalliere, officer commanding at Port Toulouse, in which he tells me that fifteen  
sauvages from Ile Royale [Cape Breton] have been taken prisoner near St. Pierre  
off Newfoundland, by an Englishman living on an island called Desgraules."110 Dr.  
Janzen suggested that the Desgraules reference was most likely either Grole or  
107Samuel Gledhill: letter to the Commissioners of Trade and Plantations (1720) [CD 318]; Gov.  
de Brouillan to Lt. Gov. Armstrong (1727) [CD 338]; de Bourville: letter to the Minister (1730) [CD  
351].  
108Samuel Gledhill: letter to the Commissioners of Trade and Plantations (1720) [CD 318].  
109  
De Brouillan to Minister, 13 September 1727 [CD 337 & 338].  
110De Bourville: letter to the Minister (1730) [CD 351].  
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Pass Island, both at the tip of the Hermitage Peninsula. Under cross-examination  
Dr. Janzen agreed that the 1720 and 1730 references, read together, suggested that  
the Mi'kmaq were engaged in hunting and fishing in this area rather than raiding at  
the behest of the French. He also noted that despite the French and British being at  
peace the Mi'kmaq could have engaged in acts of warfare on their own initiative:  
... you have to understand, the aboriginals had their own agenda. They  
would engage in hostilities and did engage in hostilities against the  
English during the 1720s at a time when France and England were  
nominally at peace. They weren't the servants of the French. They were a  
separate nation and regarded themselves as such, and acted as such.  
[130] In 1727 William Taverner, who was by this time trading in the Port aux  
Basques area, requested assistance from the British Admiralty for a voyage to the  
south and west coasts, anticipating encounters with Indians.111 Later that year we  
have a record from the French at Louisbourg that 25 to 30 Mi'kmaq seized an  
English fishing vessel at Port aux Basques, dropped the crew at Louisbourg and  
took the vessel "to their mission at Mirilgeck".112 In 1734 Taverner again reported  
Mi'kmaq interfering with his trade in the Port aux Basques area:  
That some Private Men in the Port of Ingarnish [Ingonish] in Cape  
Bretton, Contrary to the Governor's Order, as I have often been informed,  
Enable the Indians to come from thence to Cape Bay [Cape Ray], to take  
Furrs and Hunt for Venison, which is a very great Prejudice to us, that  
Fish and Trade in those parts, the fear of those Indians deterrs our People  
so much that We have great Difficulty to get Men to go there.113  
[131] Several documents were introduced regarding Indian-English hostilities in  
Newfoundland during the 1740s, which the Defendants say suggest these hostile  
acts were incidental to Mi'kmaq subsistence activities in Newfoundland.  
2 July 1746: ‘The Indians from Canada last Winter taken several of the  
Furriers in the White Bay [on the north coast of Newfoundland], they  
killed one, wounded another, the Chief of the Indians were kind to 'em,  
there were only twelve Indians of the party, there were three more partys  
111 “A memorial from Captain William Taverner to the Lords Commissioners for Trade and  
Plantations, 1926", CO 194/8, pp. 22-22v, St. John’s, filed as O.U.J. 11.  
112de Brouillan to Minister (1727) [CD 337].  
113William Taverner to Board of Trade (1733/34) [CD 360].  
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on the Island; they were well acquainted with the Country as far as the  
Bay of Bulls [on the Avalon Peninsula, in eastern Newfoundland], and  
had been there the last War; they are thought to be Hunters, who yearly  
come to the Northward a Furring.’114  
8 August 1748: ‘40 Micmacs of Ile Royale have been wintering at  
Newfoundland, and struck a blow in the fall on several isolated English  
houses, which they pillaged; they took 23 prisoners whom they have kept  
all winter; treated them well up to the month of April, then put 12 of the  
23 in a boat in company with 8 old Indians and their families, whom they  
have sent with them to the neighbourhood of St. John [Prince Edward  
Island], where they were to wait for the tribe which was to follow  
immediately, in order to proceed altogether to Quebec. On arriving at the  
rendezvous, the 12 prisoners who were free killed the 8 old Indians, and  
the women and children and escaped. Two days after the blow, the tribe  
arrived with the 11 other prisoners, and being surprised at seeing their  
people dead were informed by a Micmac squaw, who had not yet  
expired, of what had occurred; seeing which, these Indians made their  
prisoners land, and explaining to them their comrades' conduct, killed  
them all to avenge the death of their people, and have arrived with the 11  
scalps.’115  
May 1749: ‘In 1749, towards the end of the month of May, at a time that  
the suspension of arms between the two crowns was not yet known in  
New France, the savages, having made prisoners two Englishmen of  
Newfoundland, had from these same prisoners the first news of the  
cessation of hostilities. They believed them on their bare words,  
expressed their satisfaction to them, treated them like brothers, unbound  
them, and carried them to their huts. The said prisoners rose in the night,  
and massacred twenty-five of these savages, men, women, and children.  
There were but two of the savages escaped this carnage, by being  
accidentally not present.’ 116  
[132] The Crown's expert on this period of Newfoundland history, Dr. Janzen,  
conceded on being presented with the 1748 document, above, that the presence of  
families and elders overwintering in Newfoundland lent credence to the notion that  
Mi'kmaq were in Newfoundland in the first instance to hunt and trap, and that the  
opportunity to wage warfare was incidental to subsistence. Further, Dr. Janzen  
114Thomas Craven to Admiral Townshend (1746) [CD 359 and CD 387].  
115John R. Broadhead, Documents Relative to the Colonial History of New York State (1748)  
[CD 914].  
116Abbé Maillard, An Account of the Customs and Manners of the Micmakis and Maricheets  
Savage Nations &c (1758) [Cd 439], pp. 67-68.  
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agreed that the 1748 reference lent support to the conclusion that the 1746 "Indians  
from Canada... who yearly come to the Northward a Furring" were Mi'kmaq.  
[133] That hunting and trapping in Newfoundland were a regular part of Mi'kmaq  
subsistence strategy, independent of any French commercial and religious agenda,  
say the Defendants, is further supported by a statement c. 1755 by the Cape Breton  
priest, Abbé Maillard: "In effect he [the Mi'kmaq] does go far away, like to the  
Island of Newfoundland, where nothing prevents him from making a very good  
hunt: but he will report nothing about how it went, because the true plan that he  
had was nothing other than to spend all the furs that he had acquired for brandy  
and French wine which fishermen on the shores there offer in exchange without  
any scruples."117  
[134] A report by Newfoundland Governor Palliser in 1764 also suggests the  
practice of Mi'kmaq hunting and trapping in Newfoundland continued regularly  
after 1749, and further notes that the Mi'kmaq encountered in Codroy in 1763 at  
the time of the signing of the "Lark Treaty" (para. 136 and Parts V.A.5(e) and  
V.B.5 below) had been in Newfoundland before the outbreak of the Seven Years  
War in 1756:  
When I was at the Bay of three Islands [Bay of Islands] I saw Sufficient  
Proofs of [French] Encroachments during the last Peace [i.e. 1749-55]  
even if that Place had been within the Limits where they are Allowd to  
Fish for they have dwelling Houses there; and besides the Cod Fishery  
they have carry'd on a great Salmon Fishery up the Rivers: there remains  
an infinate Number of their Traps for taking Fur which I saw myself,  
there is no doubt from these Circumstances as well as from certain  
Informations, that their people stay'd there during the Winter those Parts  
being very Rich in Furrs, and that from thence they Encourag'd the  
Indians from Cape Briton (the same as were the last year at Caderoy) to  
Cross the Island to Kill our People Employd in the Winters Seal Fisherys  
on the east Side of this Island.118  
[135] Although Governor Palliser, as is characteristic of British observers  
generally, attributes Mi'kmaq actions to the designs and encouragement of the  
French, the Defendants argue it is clear from the foregoing that Mi'kmaq ranging  
117 Lettre de M. L’Abbe sur les Missions de l’Acadie et Particulierenant sur les Missions  
Micmaques [CD 440], p. 366, and Prins, Expert Report, p. 142.  
118Governor Hugh Palliser: despatch (1764) [CD 569], p. 2v.  
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across the interior of the Island pre-dates the re-institution of French settlement in  
southwestern Newfoundland, which Dr. Janzen dates to c. 1750.119  
[136] For the period of the French and Indian (Seven Years) War (1755-63), no  
unequivocal references to Mi'kmaq frequenting Newfoundland were introduced.  
However, historian Stephen Patterson did note in his expert testimony that  
substantial numbers of Acadians and Mi'kmaqs travelled to St. Pierre and  
Miquelon after the surrender of Louisbourg (1758) and both before and after the  
final transfer of sovereignty in the region in June 1763. The French attempt late in  
the war to use Newfoundland as a springboard to return to Cape Breton kept alive  
the hopes of some Acadians and their most loyal Mi'kmaq followers from Cape  
Breton. The question to Dr. Patterson and his response was as follows:  
Q: Is it fair to say that the Mi'kmaq were still a military threat or military  
consequence to the security of the province in 1760, '61, in this early  
time period?  
A: It was the perception of the governor or acting governor that that was  
the case. I recall letters from the early 1760s that expressed some concern  
about the Canadian contact of the Mi'kmaq with the French at St. Pierre  
and Miquelon and the concern that they may have once again become  
military. So there was not the immediate sense that everything was  
settled to the British satisfaction.  
Dr. Janzen gave evidence to the effect that the Mi'kmaq had been in Codroy in  
1762:  
... the [English] settlers [at Codroy] do, in fact, catch furs, and what we  
see though, is there's a concern by this year, 1763, that Indians had been  
coming over since the year before, 1762, and that they feel at risk, and  
they're unwilling to venture out into the trap lines or into the interior for  
fear of whatever might happen.  
[137] The small number of references during the period 1755-1763 may be related  
to deficiencies in the surviving record, but may also be a reflection of what Dr.  
Patterson characterized as "how completely the war disrupted the normal living  
119Olaf U. Janzen. “‘Une Peitite Republique’ in Southwestern Newfoundland: The Limits of  
Imperial Authority in a Remote Marine Environment” (1992), supporting document to his Expert Report,  
Tab 16.  
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patterns of the Mi'kmaq people...".120 He noted: "The lives of hundreds of  
self-sufficient Indians were completely disrupted by their service to the French  
cause as they came to rely on regular supplies of food and ammunition from the  
French government".121 Large numbers of Mi'kmaq were engaged as soldiers by  
the French, in military campaigns in which the French and Indian forces were  
ultimately defeated at almost every turn, in Nova Scotia and Cape Breton. With an  
estimated one third of the total Mi'kmaq population abandoning traditional  
subsistence and hunting grounds pursuits to engage in what Dr. Prins has termed  
"ethnic soldiering," the Mi'kmaq became dependent upon the French for  
sustenance.122 As expert witness Dr. William Wicken noted in a 1994 article  
"traditional fishing and hunting sites... in some cases, had been abandoned  
temporarily in consequence of an expanding imperial rivalry between England and  
France in the Atlantic region 1744-60."123  
[138] Records show that with the end of the Seven Years War in 1763 Mi'kmaq  
quickly resumed the practices of hunting, trapping, and fishing in western and  
southern Newfoundland. The British had defeated the French in Cape Breton,  
Nova Scotia and Quebec, the conquest affirmed by the Treaty of Paris (February  
1763). The victors further emerged from the war with the intention of asserting the  
British claim to sovereignty over western and southern Newfoundland.124 The  
Defendants submit it is in this context that British pronouncements on the Mi'kmaq  
of Newfoundland in the era of Governor Hugh Palliser must be viewed.  
[139] In September of 1763 Captain Samuel Thompson, on the Newfoundland  
station in the Lark called at the harbour of Codroy, then the only English outpost in  
120Patterson, Expert Report, p. 25.  
121Stephen Patterson. “Indian-White Relations in Nova Scotia, 1749-1761" (1993), 23  
Acadiensis 23 [supporting document to his Expert Report, Tab 13].  
122Harald Prins, The Mi’kmaq: Resistence, Accommodation, and Cultural Survival (1996), pp.  
117-119; 148-151 [von Gernet Supporting Documents, vol. 36, Tab 334]  
123William Wicken, “The Mi’kmaq and Wuastukwiuk Treaties” (1994), 43 U.N.B.L.J. 241.  
124Olaf U. Janzen, “The Royal Navy in Newfoundland, 1650-1770", [Janzen Supporting  
Documents, Tab 2], paras. 28-30; Stephen Patterson, “1744-1763: Colonial Wars and Aboriginal  
Peoples” (1994) [Patterson Supporting Documents, Tab 47].  
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western Newfoundland. Near Codroy he met with Mi'kmaq Chiefs Jeannot  
Peguidalouet and Bernard:  
At my return to Codroy I found the C. Breton Indians were come over to  
Furr dureing the winter between C. Ray and C. Anguille - This had  
greatly intimidated the Settlers at Codroy, but on my haveing an  
interview with the Indian chiefs, their fears somewhat abated and part of  
them talked of Furring dureing the winter, by which the winter before  
they had made £50 a man. The Indians promise perpetual Friendship, yet  
they are hardly to be relyed on as they are Roman Catholicks. They were  
very anxious to purchase a Shallop of the People of Codroy, to go to St.  
Peters for a Priest - This I forbad them possitively under pain of being  
carried Prisoners to the Governour if they were taken in ye attempt - yet I  
am apt to think they will do it, & perhaps by means of ye People of  
Codroy who may have no objection to Trade to St. Peters themselves...  
125  
.
[140] Nowhere do Captain Thompson's reports indicate that the five families of  
English settlers at Codroy had been there any longer than one or two years. The  
Defendants submit that, given the recent war between Britain and France and the  
remoteness of Codroy from the English settlements in eastern Newfoundland, it  
would be surprising if the Codroy settlers were not newcomers. However,  
Governor Palliser's report of 1764 indicates that the Mi'kmaq Captain Thompson  
met at Codroy in 1763 were the same ones who had previously crossed the  
Newfoundland interior to kill English settlers in eastern Newfoundland (see para.  
131 above) and the Defendants contend presumably were the same Mi'kmaq whose  
regular hunting expeditions (which included the presence of elders and families) in  
Newfoundland are noted above (paras. 129 - 131).126  
[141] The English did not make an exploratory journey to Bay d'Espoir until 1765  
and the surveying voyage of Captain James Cook. Captain Cook was then involved  
in a general survey of Newfoundland. This set out to affirm British sovereignty on  
the south and west coasts by making the first reliable nautical charts, in order to  
facilitate the movements of the Royal Navy and the extension of the British ship  
fishery. Captain Cook's log of 1765 (which is the earliest first-hand report from  
Bay d'Espoir unearthed by either of the parties) does not mention the Mi'kmaq.  
However, Governor Palliser reported on 30 October 1765: "I have lately receiv'd  
125Captain Samuel Thompson: Report to Admiralty (1763) [CD 504].  
126Governor Hugh Palliser: despatch (1764) [CD 569] p. 2v.  
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Advice of a party of about 130 of the Mickmack Indians being seen on the 10th  
Inst sailing up the Bay of Despair, where they said they were going to settle, to  
hunt &ca ...".127 Robert Cuff testified that the sequence of events made it highly  
likely that this report of Mi'kmaq in Bay d'Espoir was received from Captain Cook,  
who was, by his log, departing Bay d'Espoir on October 10, 1765. As Robert Cuff  
testified:  
Q: Did he encounter any Mi'kmaqs in 1765 or when he did his survey?  
A: Well, again it's curious in that Cook doesn't talk a lot about people. There are some  
pilots mentioned by name in his log and account books and he does mention encounters  
with individuals from time to time, but actually his log books do not say anything about  
having met any Mi'kmaq. However, it's, I believe, inevitable to infer from his reports or  
from subsequent reports that Cook did indeed meet a party of Mi'kmaq in Bay d'Espoir  
on the 10th of October, 1765. On the 10th of October, Cook had been held up for some  
time in Ship Cove, which we now call St. Albans's, repairing, careening, cleaning off his  
vessel, and on the 10th of October, according to his log books, he was headed out to Bay  
d'Espoir. He'd left Ship Cove and was heading for St. John's. Subsequently he arrives in  
St. John's on, I believe it is the 22nd of October ... and on the same date that he arrives in  
St. John's we have Governor Palliser writing to, I believe it's Lieutenant Pringle at  
Louisburg, that he has just received report of a party of Mi'kmaq, 150 to 175 Mi'kmaq,  
heading into Bay d'Espoir to settle. If you look at subsequent communications between  
Palliser and his counterpart in Nova Scotia or others in Nova Scotia, he does mention that  
the 10th of October was the date that the Mi'kmaq were encountered. So even though  
Cook does not say, I met a, Cook's logs do not say on the 10th of October, met a party of  
Mi'kmaq coming down to Bay d'Espoir, somebody did meet a party of Mi'kmaq on the  
10th of October and Cook was coming down to Bay d'Espoir on the 10th of October,  
1765.  
Q: So you're drawing the inference, if you want, that, if you will, that this was reported  
by Cook to Palliser and Palliser reported it to somebody else.  
A: Yes. I think it's pretty much inescapable, although, as I said, it does not say in Cook's  
log book, met a bunch of Mi'kmaq. I think it's inescapable that is the source of the report  
that Palliser refers to on the 10th of October.  
[142] In that same report Governor Palliser states of the Mi'kmaq: "I am of the  
Opinion they never would have attempted to come to a part of the Island where  
they never have been before...".128 The Defendants submit Palliser is mistaken as to  
the Mi'kmaq having never been to this part of the Island before, a Mi'kmaq  
127Governor Hugh Palliser: despatch (1765) [CD 627], p. 133; Captain James Cook, “Proceedings  
of H.M. Schooner ye Grenville from the 14th of June 1764 to the 31st of December 1765" (1765) [CD  
533].  
128Governor Hugh Palliser: order and pass (22 October 1765) [CD 625].  
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presence having been documented decades earlier, namely: 1707, at the bottom of  
Fortune Bay, St. Pierre and Bay d'Espoir [CDs 214-218]; 1720 at St. Pierre [CD  
318]; and 1730 at "Desgraules" [CD 351]. In an order issued the same date  
(October 22, 1765) as Palliser's observation, above, he implies an ongoing seasonal  
Mi'kmaq presence: "whereas I am informed that several of His Majesty's Indian  
subjects from Cape Breton resort to this country to hunt and trade during the  
winter" [CD 625]. Further, there was a Mi'kmaq presence at St. Pierre noted two  
years before Palliser's statement of 1765. Governor Montagu Wilmot of Nova  
Scotia commented on the presence of the chief of the Cape Breton Indians at St.  
Pierre and on September 17, 1764 he stated: "I have lately had the mortification to  
find that he was not only well received [at St. Pierre], but that he has continued on  
that Island ever since with his whole tribe."129  
[143] It is worth noting that of the seven instances noted in the last paragraph,  
none of the reports of Mi'kmaq on the south coast originated with the Royal Navy -  
including those of 1763-64, when naval ships were active in the area to oversee the  
handover of St. Pierre to the French. As Dr. Janzen testified "It's one thing to  
notice 150 to 170 Mi'kmaq in 1765, but its another to notice the inhabitants of one  
shallop, among others, were Mi'kmaq. So I'm not really surprised by that."  
[144] In the winter of 1765-66 Governor Palliser decided to station a naval ship,  
the schooner Hope, at Grand Jervais at the mouth of Bay d'Espoir to prevent  
encroachments by the French at St. Pierre on the island of Newfoundland and to  
discourage Mi'kmaq commerce with the French. Several Mi'kmaq (including  
families) were encountered. As Dr. Janzen writes:  
The British authorities had long been concerned that Indians from Cape  
Breton Island were visiting Newfoundland to hunt and fish, and though  
there had been no firm evidence to support such suspicions, it was also  
true that the Newfoundland station ships had never patrolled regularly  
along the South Coast before 1763. It therefore must have come as no  
real surprise to the men of the Hope to find natives in Bay d'Espoir, and  
the schooner's logs refers to numerous encounters as the men gathered  
firewood or, using a shallop, probed the inner reaches of the deep inlets  
that characterize the coast in that area.130  
129Governor Montagu Wilmot to Board of Trade (1763) [CD 528] and (1764) [CD 571]. See  
also von Gernet, Expert Report, p. 192.  
130Olaf U. Janzen, “The Royal Navy in Newfoundland, 1650-1770", note 124 above .  
Page: 71  
[145] The following two winters (1766-67 and 1767-68) Governor Palliser again  
stationed a naval ship at Grand Jervais. No Mi'kmaq were encountered, nor indeed,  
by 1767, European inhabitants nor overwintering persons of any nationality. In that  
year Palliser suggested the Mi'kmaq "have disbursed themselves along the west  
side of Newfoundland in the neighbourhood of Point Riche" in response to his  
patrols of the south coast. It was also in 1767 that Captain Cook encountered "a  
tribe of the Mickmack Indians" in St. George's Bay.131  
[146] These preventative naval patrols at the mouth of Bay d'Espoir ceased in  
1768. In 1769 Mi'kmaq returned. Baron de l'Esperance, Governor of St. Pierre  
from 1763, noted that "a shallop of sauvages mich mach have stopped off here on  
the pretext of asking for news of the King's health and to assure him of their  
continued strong attachment".132 Baron d'Esperance notes further Mi'kmaq visits to  
St. Pierre in 1777, 1778 and 1784.133  
[147] In the 20 years from 1764 to 1783 there are also records of baptism,  
marriage and burial of Mi'kmaq in the parish registers of Miquelon and St. Pierre -  
in the years 1764, 1768, 1773, 1775, 1776, and 1778 - suggesting a continuing  
relationship of greater extent than the few visits noted by d'Esperance, above.134  
[148] Charles Martijn has noted that less than 25% of the Miquelon or St. Pierre  
baptismal and other parish records of this era specify a place of birth or residence.  
The earliest that specifies Bay d'Espoir as a place of residence is the baptism of a  
girl, Jeanne Heli, on August 18, 1778.  
Le dix-huit août de la présente année mille Sept cens Soixante dix huit  
a été baptisée sous condition, jeanne, ondoyée à la Maison par Jacob  
Abamau, sauvage mickmak native à la baye des Experes, [? indistinct]  
de huit mois, Scavoir le premier janvier de cette presente année, fille de  
jean Heli et de Anne ... (fille de Charles ... epoux de  
131 Palliser Report to Board of Trade, December 5, 1767 [CD 702] and Olaf U. Janzen, “The  
Royal Navy in Newfoundland, 1650-1770", note 124 above.  
132Charles Martijn. “Historical Review”, note 3 above, 5.3.1: pp. 9-10.  
133  
[CD 766]; [CD 787]; [CD 788].  
134Charles Martijn, note 3 above, 5.3.3: pp. 8-10.  
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Magdelaine)... Les quels ses pere et mere, demeurans actuellement a la Baye des experes.  
Le parrain pierre Bonis, oncle [?indistinct] la marrainejeanne Bonis epouse de jacques...  
tous Sauvages et Sauvagesses Mickmakes, résidans actuellement a la Baye des expers, les  
quels tous m'ont Sans Signer approuve les lignes [?indistinct] de cet acte.  
[signé]PARADIS, Vicar  
[in translation]  
The eighteenth of August of the present year one thousand seven hundred seventy eight  
was given conditional baptism, Jeanne, privately baptized at home by Jacob Abamau,  
Mi'kmaq Savage, native of the Baye des Experes, [aged about ?] 8 months, that is to say  
the 1st of January of this present year, daughter of Jean Heli and of Anne... (daughter of  
Charles....husband of Magdelaine...) who are the father and mother, actually living in the  
Baye des Experes [Bay Despoir]. The godfather: Pierre Bonis, uncle [maternal ?]...The  
godmother: Jeanne Bonis, wife of Jacques...all Mi'kmaq Indians actually residing in the  
Baye des Experes, who, without signing, all signified their approval to me [of the  
preceeding ?] lines of this act. [Signed] PARADIS, Vicar135  
[149] The baptism of a further Heli child, in October 1784 at Baye des  
Hexesperes136 as well as other register entries concerning the Heli family, suggest  
continuity amongst the Mi'kmaq residents of Bay d'Espoir, as does the presence of  
Mi'kmaq named "Jacob Omo" and "John Elly" in a 1790-91 mercantile register  
from Little Bay, on the north side of Fortune Bay.137 Other parish records from the  
1770s which specify a place of residence are records pertaining to the family  
Beguiddavalouet (an alternate transcription of Peguidalouet and a family name  
subsequently rendered in Newfoundland as "Bernard"), likely relatives of Chief  
Jeannot living at "Yles Berjaus" [Burgeo].  
[150] In the Miquelon and St. Pierre registers investigated by Martijn there are no  
less than 11 individuals and likely three generations of a Mi'kmaq Heli family in  
acts recorded in the years 1778, 1784, 1786, 1790 and 1791. Most of the Helis are  
either identified as living in Bay d'Espoir or (in records where no place of  
residence is given) are the spouses or children of Helis identified elsewhere as  
135Charles Martijn, “Nine Mi’kmaq Acts...” in On the Country, note 3 above, 5.3.3: annexe #5,  
pp. 25-26. From Archives nationales du Quebec, Reel 4M00-1437A, Ile de Miquelon. Charles Martijn,  
“Alphabetical List of Mi’kmaq Names Occurring in the Parish Registers of the Islands of St. Pierre and  
Miquelon 1763-1848" in On the Country, note 3 above, 5.3.3: annexe #4.  
136  
Martijn, “Nine Mi’kmaq Acts”, note 135 above, annex #5, p. 24.  
137  
“Little Bay Ledger: Newman Hunt and Company” (1790-91) [CD 1009].  
Page: 73  
living at Bay d'Espoir. The baptismal records of Heli family members identified as  
living in Bay d'Espoir include at least five other Mi'kmaq adults as witnesses,  
including married couples Jacques and Jeanne Bonis and Jacob and Marieanne  
Amabou.  
[151] In records pertaining to five adult members of the Begguiddavalouet or  
Bernard family at Burgeo (1773; 1776; 1778) two further adult males are  
mentioned, as well as Jacob Amabou or Abamau. Amabou is of particular interest,  
appearing in the parish registers from 1773 to 1789. He witnessed a wedding of the  
Begguiddavalouet family of Burgeo and performed conditional baptisms for  
members of the Heli family at Bay d'Espoir (and may well have been the  
"neighbour" who conducted a further baptism in 1784), suggesting he was an  
individual of some status within the Bay d'Espoir Band. Amabou also had some  
connection with the Mi'kmaq at Bay St. George, a son of his having been baptized  
there in 1789, and was likely the same person as the Jacob Omo who traded furs  
with Newman and Hunt at Little Bay in 1791.  
[152] The Defendants submit Dr. von Gernet is mistaken in his expert report (p.  
210) when he cites Martijn's work as evidence that for Mi'kmaq, whose baptisms  
and marriages are recorded at St. Pierre and Miquelon, "there is no indication that  
they used these occasions to go north to Newfoundland". The Defendants contend  
it appears that many Mi'kmaq came from the north, and Newfoundland, on such  
visits to St. Pierre and Miquelon.  
[153] No baptismal records were kept at St. Pierre or Miquelon from 1779 to 1782,  
the islands being abandoned by the French during the American Revolutionary  
War.138 The difficulty of reconstructing the Mi'kmaq presence at Bay d'Espoir in  
the interim, from English records of the period, say the Defendants, is exacerbated  
by the fact that the English fishery and English settlement in Fortune Bay was  
negligible in the 1770s, declining from ten families in 1771, to one master and nine  
servants at Harbour Breton by 1776.139 In 1778 the Scheme of the Fishery notes of  
Fortune Bay "No Fishery this Year but in Harbour Breton and that was a great deal  
138Olaf Janzen. “St. Pierre and Miquelon” (1994), Encyclopedia of Newfoundland and Labrador,  
p. 53 [Cuff Supporting Documents, vol. 3, Tab 2].  
139 “General Scheme of the fishery and inhabitants of Newfoundland for the year 1771" [CD  
733]; “General Scheme of the fishery and inhabitants of Newfoundland for the year 1776" [CD 759].  
Page: 74  
destroyed by the American privateers".140 In the 1782 Scheme of the Fishery no  
fishery or settlement was recorded in Fortune Bay or at St. Peters.141 As Dr. von  
Gernet put it "[w]e know very little about what transpired [in western  
Newfoundland] over the course of the next two decades [1767-1787]."  
[154] That the Mi'kmaq continued to frequent Newfoundland during the American  
Revolutionary War, a period when the European fisheries at southern and western  
Newfoundland were either abandoned or, at least, went unrecorded, is suggested by  
an observation of Lt. Edward Chappell at Bay St. George in 1813:  
During our war with America, between the years 1775 and 1782, the  
Micmac Indians, inhabiting the island of Cape Breton and the parts  
adjacent, were amongst the number of our most inveterate enemies; but  
at length one of our military commanders having concluded an amicable  
treaty with them, he selected one of the most sagacious of their Chiefs to  
negotiate a peace with a neighbouring tribe, who were also hostile to the  
English cause. The old Indian ambassador succeeded in the object of his  
mission; and received, as his reward, the grant of a sterile tract of land in  
St. George's Bay, Newfoundland, together with permission to transport  
as many of his countrymen thither as might be willing to accompany him  
in the expedition. Accordingly the old Sachem left his native land,  
accompanied by a strong party of Indian followers; and boldly launching  
out to sea in their crazy shallops or canoes, they eventually reached St.  
George's Bay in safety... .142  
Dr. von Gernet observed in his report:  
Of course, we now know that the Mi'kmaq had been at St. George's Bay  
in the 1760s, so their association with the area was deeper than the period  
of the American Revolution... the discrepancy may be accounted for by  
postulating an occasional use in the 1760s and an annual overwintering  
by the 1780s - in other words a difference in the level of sedentariness.143  
140 “General Scheme of the fishery and inhabitants of Newfoundland for the year 1778" [CD  
763].  
141“General Scheme of the fishery and inhabitants of Newfoundland for the year 1782" [CD 779].  
142Lt. Edward Chappel, Voyage of His Majesty’s Ship Rosamond to Newfoundland and the  
Southern Coast of Labrador (1818) [CD 889], pp. 76-77.  
143 von Gernet Expert Report, pp. 210-211.  
Page: 75  
[155] In Dr. von Gernet’s opinion, a Mi'kmaq presence in Bay d'Espoir can be  
dated to 1784, when 80 Mi'kmaq visited Miquelon, were well treated and, on  
departing "They added that to give evidence more and more of their attachment to  
France, they were proposing to settle at Baie Désespoir in order to be more within  
reach of coming to visit us more often".144 Dr. von Gernet suggests that this letter  
not only indicates the starting point of Mi'kmaq settlement in Bay d'Espoir, but  
"offers confirmation from the Mi'kmaq themselves that their interest in the Bay  
d'Espoir was inextricably linked to the French presence at Saint-Pierre and  
Miquelon."145 The Defendants question this, noting that one Mi'kmaq baptismal  
record from Bay d'Espoir in 1784 is of a family, Heli, who had been resident in  
1778.  
B. The Province’s View of the Evidence on Aboriginal Rights  
1.  
The Contact Period  
(a) Anthropological Insights  
[156] The Supreme Court of Canada says that in order for an activity to be  
identified as an aboriginal right one must demonstrate that the activity is a  
distinctive cultural feature that existed in some form prior to contact with  
Europeans and has not subsequently been extinguished.146 This emphasis on the  
examination of cultures and how they change over time brings the issue into the  
realm of anthropology. Anthropology is, by definition, the study of culture and  
anthropologists do, indeed, explore many of the same issues that arise in aboriginal  
rights litigation. However, the Province’s expert witness, Dr. von Gernet, notes  
that the two fields differ somewhat in their notion of “contact” between natives and  
Europeans. The Province submits the more rigorous and precise anthropological  
approach should be considered in defining the temporal parameters of the Van der  
Peet contact test.  
[157] In Van der Peet Chief Justice Lamer ruled that, when identifying aboriginal  
rights, the courts must look to the “pre-contact period,” which is defined as the  
144Baron de l’Esperance and M. Malherbe to Minister, August 20 (1784) [CD 788].  
145  
von Gernet Expert Report, pp. 202-203.  
146 R. v. Van der Peet (1996), 137 D.L.R. (4th) 289 (S.C.C.), p. 315, para. 60.  
Page: 76  
“period prior to contact between Aboriginal and European societies.”147 In the next  
paragraph, however, he writes the relevant temporal context is the period “prior to  
the arrival of Europeans in North America.”148 Elsewhere, the Court again implies  
that “arrival” and “contact” may be used interchangeably.149  
[158] According to Dr. von Gernet, anthropologists see an important distinction  
between arrival and contact, and recognize that contact may be either direct or  
indirect. For most aboriginal peoples in Canada, the arrival of Europeans in North  
America was largely irrelevant, since they had no knowledge of the event and  
continued in what was essentially a “pre-contact” period for centuries after the first  
Europeans set foot on this continent. For example, the initial arrival of newcomers  
on the shores of eastern Canada did not affect the lives of the Blackfoot of central  
and southern Alberta because the first Europeans did not arrive in Alberta until the  
middle of the 18th century.  
[159] Dr. von Gernet defined “arrival” as the “arrival of Europeans in the territory  
occupied by the ancestors of the nation or cultural group claiming the Aboriginal  
rights.”150 But this definition may also be inadequate. For instance, John Cabot’s  
landing in 1497 did not actually involve direct contact with the aboriginal people,  
the Beothuk, who the parties agree were already present on the Island of  
Newfoundland in certain areas. On the other hand, the first European “contact”  
between Europeans and the Huron occurred prior to the arrival of the first  
European in the Huron country and took place over 1000 kilometres from their  
homeland. Dr. von Gernet explained:  
…aboriginal peoples were in indirect contact with Europeans in the sense  
that they were on good terms with aboriginal neighbours who were in  
direct contact and they had probably received these European goods  
through trade. So you can have the influence of Europeans long before  
you have actual face-to-face contact… .  
147  
The same.  
148  
At para. 61.  
149  
At para. 44.  
150  
von Gernet, Expert Report, p. 3.  
Page: 77  
[160] The Province accepts that contact between natives and Europeans was a  
complex process of transculturation in which goods, behaviours and ideas flowed  
both ways, not easily reduced to a single point in time. The Province submits the  
first occasion of direct contact was often preceded by culture change brought about  
by indirect contact.  
[161] Fortunately, in the case of the Mi’kmaq, the matter of contact is not as  
complicated as it is for other aboriginal groups living further inland, since evidence  
indicates the Mi’kmaq did not have a significant period of indirect contact before  
their first meeting with Europeans. In fact, because of their maritime subsistence  
economy they were one of the first North American aboriginal groups to have  
regular contact with Europeans. So the time of the face-to-face contact roughly  
coincides with the time that Europeans first arrive in North America. The  
Defendants’ expert agreed with this. In his 1996 book, Dr. Prins wrote “The  
Mi’kmaqs’ geographic position on the northern Atlantic Seaboard singled them out  
for the dubious honor of being among the very first indigenous peoples in  
northeast America to encounter the European vanguard.”151  
[162] It is also true that, from an anthropological perspective, contact is more than  
just a date on a calendar. It is a simple word that expresses the complex concept of  
cultural adaptation and transformation that occurred over the transitional period  
known as the “protohistoric”. In testimony, Dr. von Gernet defined this as:  
…a transitional period between the time that Europeans first arrived and  
the time that there is actual sustained face-to-face contact that results in  
the production of a significant documentary record, a written record.  
[163] David Christianson, Curator of Archaeology at the Nova Scotia Museum,  
offered the following time frame for this period of history in Nova Scotia:  
Ordinarily, contact would only be used for the period prior to permanent  
settlement occurring… From an archaeological perspective, it would be  
the time from initial contact. I can’t give you a precise date, but certainly  
second quarter 16th century, certainly from that period up until the  
151  
Prins, The Mi’kmaq: Resistance, note 122 above, p. 2. At p. 19 in this same publication Dr. Prins  
defines “traditional Mi’kmaq country” as stretching “from Cape Breton Island west to the St. John River and north to  
the Gaspé Peninsula”, thereby excluding the Island of Newfoundland.  
Page: 78  
beginning of permanent settlement, which is generally agreed to be Port  
Royal 1604.  
[164] While admitting the historical record for the early contact period is  
fragmented, the Province argues a critical review of the few available documents in  
conjunction with the archaeological record does reveal evidence of profound  
cultural change among the aboriginal (Mi’kmaq) people of Nova Scotia as a direct  
consequence of the European presence.  
(b) Initial Contact  
[165] The earliest known encounters between Europeans and the aboriginal people  
of North America occurred when the Norse explored the coast of Newfoundland  
and Labrador and attempted to establish a settlement in L’Anse au Meadows  
around 1000 A.D. Their sagas describe hostile encounters with the natives, called  
“skraelings” by the Norse, which led to fatalities on both sides. The Norse settlers  
eventually abandoned Newfoundland and there is no indication that they were ever  
able to establish friendly relations with the local aboriginal population. However,  
while this Scandinavian presence in Newfoundland is an interesting episode in our  
history, it is currently not thought to have had a significant impact on aboriginal  
culture.  
[166] The period of sustained and significant contact between Europe and the new  
world began in 1492, when Columbus rediscovered America for the Europeans. A  
few years later, in 1497, John Cabot followed a more northerly route to the west,  
which brought him to the east coast of Newfoundland. Although Cabot did not  
make contact with the native people of the region during this voyage, he did  
observe signs of human occupation. John Day, alias Hugh Say, a contemporary of  
Cabot, reported:  
...they found a trail that went inland, they saw a site where a fire had  
been made, they saw manure of animals which they thought to be farm  
animals, and they saw a stick half a yard long pierced at both ends,  
carved and painted with brazil, and by such signs they believe the land to  
be inhabited… and it seemed to them that there were fields where they  
thought might also be villages… .152  
152Letter from John Day alias Hugh Say to the Grand Admiral [Christopher Columbus], in David  
B. Quinn, New American World: A Documentary History of North America to 1612, vol. 1 (New York:  
Arno Press and Hector Bye, 1979), pp. 98-99 (Province’s Historical Documents, vol. 1 [CD 3].  
Page: 79  
[167] There is a great deal of uncertainty about the circumstances surrounding the  
first actual face-to-face contact between Europeans and the natives of North  
America. It appears that the initial encounters, like those with the Norse, were not  
friendly. Gaspar Corte Real is reported to have captured 57 natives from  
Newfoundland and carried them back to Lisbon as slaves in 1501.153 The French  
are also reported to have captured “seven human savages” from the Island called  
“Terre-Neuve” and brought them back to Rouen in 1509.154 It is not possible to  
identify the ethnicity of those involved with any measure of probability, although  
some scholars, including Dr. Prins, have previously stated that those captured in  
Newfoundland were Beothuk.155  
[168] In addition, the earliest travel accounts offer only vague descriptions of the  
geography and people, so we really do not know if the “savages” were Beothuk,  
Mi’kmaq, Abenaki, Iroquois, Montagnais, or, in some cases, even Inuit. Dr. von  
Gernet warned in his testimony:  
There’s often a tendency for the 16th century for scholars to try to squeeze out of  
these documents more than the evidence warrants simply because they are so  
vague that you can interpret them according to any pet theory that you have, and  
that tendency, I think, is one that we have to be mindful of when we look at  
interpretations of this material.  
[169] The Province submits this is especially true for the report written by Pierre  
Crignon in which he mentions an unidentified group living between Cape Race and  
Cape Breton. Crignon described these people as “cruel and austere” with tattoos  
and a top knot hairstyle. The report also mentions a group of people on the coast  
from Cape Race to the Strait of Belle Isle who were described as smaller, more  
humane, and friendlier than the others.156 While Dr. Prins suggested in testimony  
153  
Bernard G. Hoffman, Cabot to Cartier: Sources for a Historical Ethnography of Northeastern  
North America 1497-1550 (Toronto: University of Toronto Press, 1961), p. 29 [Ethnography Documents,  
vol. 5, ED 8].  
154  
The same, p. 31.  
155 Prins, The Mi’kmaq: Resistance, note 122 above, p. 51.  
156  
Hoffman, “Account of a Voyage”, note 1 above, pp. 13-14 [Province’s Historical Documents, vol. 1  
[CD 18].  
Page: 80  
that this may be the earliest reference to a Mi’kmaq presence on the south coast  
Newfoundland, the Province argues there are several problems with the source and  
this interpretation. First, Crignon was a skilled cosmographer and navigator, but  
his description of the coast in this report does not distinguish between  
Newfoundland and Cape Breton. As is typical for maps of the day, Newfoundland  
is not described as a separate Island, so the two areas are perceived as being one  
continuous coastline. This raises the possibility, as Dr. von Gernet noted, that  
Crignon did not base his description on personal observations, but paraphrased and  
plagiarized from other published and unpublished sources, including hearsay. The  
second major problem is the assumption that tattoos, hairstyle, and temperament  
may be used as ethnic indicators. Dr. von Gernet testified that many aboriginal  
groups, including the Mi’kmaq, the Beothuk and the Mohawk, used tattoos and the  
top knot hairstyle could be found from the Timucua in Florida to the Innu in  
Labrador. There is also no evidence that the Mi’kmaq were inherently xenophobic  
or hostile toward Europeans, says Dr. von Gernet, so it is not appropriate to use  
such a trait as an ethnic identifier.  
[170] There is more of a consensus in the historical community concerning the  
Lopo Homen chart of c. 1550. This is a Portuguese map of the Newfoundland-  
Cape Breton region which shows Mi’kmaq place names on the northern part of  
Cape Breton Island. The map is believed to have been generated as a result of a  
Portuguese attempt to settle in Cape Breton in the 1520's, which evidently led to  
encounters with the local Mi’kmaq population.157 Dr. von Gernet stated:  
... most scholars tend to agree that this is pretty good evidence that there  
were Mi’kmaq in Cape Breton in the first half of the 16th century, and  
that they were contacted by Europeans to the point where some of the  
names that they used for local features were transcribed unto European  
maps.  
[171] According to W.F. Ganong “... their very existence on so ancient a map  
indicates for him who collected them a contact with the Indians far more lasting  
and intimate than was possible to the usual explorer of the sixteenth century,  
157  
W.F. Ganong, Crucial Maps in the Early Cartography and Place - Nomenclature of the Atlantic Coast  
of Canada (Toronto: University of Toronto Press in cooperation with Royal Society of Canada, 1964), p. 75 [Prins  
Supporting Documents, vol. 11, Tab 2].  
Page: 81  
suggesting rather some contemporary settler there. Such settlers we know only in  
the group which followed Fagundes...” .158  
[172] Dr. Prins is also familiar with the Portuguese attempt to settle in Cape  
Breton. He testified:  
We have already established that the Gulf of St. Lawrence and the whole  
north shore of Mi’kmaq country from 1504 onwards has been in touch  
with a variety of Europeans including the fact that the Portuguese in  
1521 had a settlement on Cape Breton Island.  
[173] Although Dr. Prins was not familiar with the 1550 Lopo Homen map, he did  
refer to the 1568 Diogo Homen map which also shows Mi’kmaq place names in  
Cape Breton and he agrees that the maps may well have originated with the  
Portuguese settlement there. When asked if there are any maps of Newfoundland  
showing Mi’kmaq place names, Dr. Prins stated:159  
As a matter of fact, I don’t know of any indigenous names that are  
attached to any place in Newfoundland in the early map making. In  
other words, I am not aware of indigenous Beothuk, Innuit, Innu, or  
Mi’kmaq place names attached to the island of Newfoundland in the 16th  
century cartography.  
[174] Other examples of early names relating to Cape Breton with Mi’kmaq  
references include the depiction on the Miller Atlas (c. 1520) of the Bras d’Or  
Lake area as “terra de muyta gemte”, meaning a land of many people,160 and the  
designation of St. Paul Island as Inhigo on the Bertius Map (c. 1660).  
[175] In 1933 Père Pacifique made a record of Mi’kmaq place names for  
Newfoundland toponyms. In the following year the same author provided a census  
158 The same, p. 81.  
159The Province notes that the first recording of the current Mi’kmaq name for Newfoundland,  
“Ktaqamkuk”, appears as “Oktakumkook” in Rev. Sila Rand’s dictionary. In this dictionary Nova Scotia  
appears as Megamage meaning “Land of the Micmacs” or “Micmacland”. See Sila T. Rand, Dictionary  
of the Language of the Micmac Indians (Halifax: Nova Scotia Printing Company, 1888), pp. 179, 181  
[Province’s Historical Documents, vol. 65, CD 924].  
160Charles Martijn, “An Eastern Micmac Domain of Islands”, note 64 above, Tab 234, p. 216.  
Page: 82  
of the Mi’kmaq population which described Newfoundland, together with Canada  
and the United States, as “Out of the Micmac Country”.161  
[176] The early Portuguese attempt to settle in the region may offer some  
explanation for the rather bold and familiar behaviour displayed by the Mi’kmaq  
toward Jacques Cartier when he arrived at the Bay of Chaleur in 1534. Cartier  
noted a large group of natives have “set up a great clamour and made frequent  
signs to us to come on shore, holding up to us some skins on sticks.”162 Cartier was  
apprehensive about confronting such a large number of strangers and shot cannon  
and fire lances over their heads to scare them away. The next day, still desirous to  
trade with the Europeans, who finally agreed, the natives bartered all they had to  
such an extent that they all went away naked. There is a general consensus in the  
academic community that these natives were indeed Mi’kmaq. For Dr. Prins, the  
incident clearly shows that the Mi’kmaq were, even by this early date, “eager and  
experienced traders” who used a Portuguese pidgin, “a trade language, typically  
used in contact,” to ask Cartier to give them something.  
[177] The Province submits that, while it is quite difficult to pinpoint a precise  
date of initial contact between the Mi’kmaq and Europeans, given the foregoing  
evidence it may be stated with some certainty that the contact, or protohistoric,  
period began sometime between 1497 and 1534. It accepts as reasonable Dr.  
Prins’ statement that “the Mi’kmaq and their Aboriginal neighbors first  
encountered European invaders circa 1500.”163  
(c) The Mi’kmaq Prior to Contact  
[178] David Christianson testified the archaeological record of Nova Scotia  
extends back almost 11,000 years and may be divided into four distinctive cultural  
periods: the Palaeoindian Period (11,000 – 9000 years ago); the Archaic Period  
161  
Père Pacifique, “Le Pays Des Micmacs - The Micmac Country,” Bulletin de la Societe de Geographie  
de Quebec 28, nos. 1&2 (January 1934), p. 106 [Province’s Historical Documents, vol. 71, CD 948].  
162  
The Voyages of Jacques Cartier (U. of T. Press,Ramsey Cook ed. 1993), p. 20 [von Gernet  
Supporting Documents, vol. 7, Tab 75].  
163  
Harald Prins, The Mi’kmaq of Ktaqamkuk: A Political Ecological Perspective on Colonial Ethnohistory  
in Newfoundland, 1500-1750 [Expert Opinion Report, Revised September 22, 2000), p. 7, hereinafter cited as Prins,  
Expert Report].  
Page: 83  
(9000 – 2500 years ago); the Ceramic Period (2500 – 500 years ago); and the  
Contact Period (500 years ago – present). The modern Mi’kmaq are generally  
believed to be the direct descendants of those who lived during the Ceramic Period,  
but there is uncertainty as to whether these people are the direct descendants of the  
Palaeoindian and Archaic groups. Fortunately, for the purposes of this case, that  
particular question is irrelevant. Contact and its consequences is a topic that  
encompasses a relatively recent and discrete time frame. Dr. von Gernet  
explained:  
…you’d be hard pressed to find much deviation from the consensus that  
the archaeological sites pre-contact found in Nova Scotia are the remains  
left by the ancestors of the Mi’kmaq encountered in the 16th and 17th  
centuries. Now in some cases, archaeologists have, in fact, gone back as  
far as 2000 or 2500 years. For my purposes, that’s entirely  
unnecessary… All we need to do is root 16th and 17th century culture in a  
15th century record, and I think that has been successfully done in Nova  
Scotia to the satisfaction of the archaeological community.  
[179] Gerald Penney testified that attempts on behalf of the Miawpukek Band to  
archaeologically locate the Mi’kmaq in Newfoundland c. 1500164 have been  
unsuccessful.  
[180] There are 483 Ceramic Period archaeological sites in Nova Scotia, which,  
based on the uncontradicted testimony of David Christianson, Curator of  
Archaeology at the Nova Scotia Museum, are “ancestral Mi’kmaq sites” and  
“reflect Mi’kmaq settlement in Nova Scotia.”165 Such a large number of sites offer  
invaluable insight into the settlement, economy, and lifestyle of those who lived in  
the area prior to contact with Europeans.  
[181] The pre-contact Mi’kmaq definitely used pottery. In fact, the name  
“Ceramic Period” is used as a cultural identifier because of the large amounts of  
pottery sherds found on archaeological sites dated to this time period. Many of  
their tools were made of sharpened stones, animal bones, horn, wood and leather.  
Nicolas Denys wrote in the 17th century that in earlier times, before Europeans  
arrived, the Mi’kmaq used gigantic wooden kettles that were too cumbersome to  
164  
For a detailed discussion of these efforts see “The Archaeology of Newfoundland”, at III.B.3(e) below.  
165  
The identification of such sites was through the direct historic approach [discussed below at III.B.3(c)],  
the same technique used on Beothuk sites in Newfoundland.  
Page: 84  
transport so they were left behind and provided ties to certain camping locations.166  
He also wrote that, “They did not lack animals, which they killed only in  
proportion as they had need of them.”167  
[182] The Mi’kmaq were migratory people with a largely maritime subsistence  
economy, who would, at certain times of the year, follow the rivers into the interior  
in pursuit of fish and game. In his testimony, David Christianson provided a  
succinct summary of the contiguous habitat model used to describe the Mi’kmaq  
mode of subsistence prior to the arrival of Europeans. He stated:  
Generally in the Ceramic period, there was a reliance on coastal  
resources on maritime resources, but also use of the interior and there are  
basically – it’s been best summarized by one author, Dr. Stephen Davis,  
where he defines four ecological zones that are being exploited by  
Mi’kmaw residents of the province… Under the Davis model, Mi’kmaw  
people would be exploiting the open ocean partly, also exploiting the  
inner bay, and then into the rivers and lakes directly and then going into  
the forest from the rivers and lakes, that determining where people are  
harvesting food, people are also living and that’s why we have a  
settlement pattern showing sites in the interior, but these sites are also  
related to locations along this bay.  
[183] Dr. Prins wrote that the Mi’kmaq moved “seasonally between particular  
hunting districts and specific coastal fishing, clamming, fowling, and sealing sites,”  
and “although some animals were killed year-round, furbearing animals were  
typically hunted in the winter and spring only.” He estimated that for ten out of  
twelve months their economy was oriented toward maritime resources which may  
have provided up to 90% of their diet.168  
[184] It is apparent from both history and archaeology that prior to the arrival of  
Europeans on this continent the Mi’kmaq had a largely self-reliant, subsistence  
based economy with relatively simple technology. The Province submits that what  
166  
Nicolas Denys, The Description and Natural History of the Coasts of North American (Acadia) (c.  
1672), 1968 Reprint of the Original Champlain Society Publication II of 1908, p. 443 [Province’s Historical  
Documents, vol. 6, CD 88].  
167  
The same, p. 403.  
168  
Prins, The Mi’kmaq: Resistance, note 122 above, pp. 27-29.  
Page: 85  
was distinctive to Mi’kmaq culture at the time of contact was their maritime  
adaptation.  
(d) The Consequences of Contact  
[185] For the Mi’kmaq people, the protohistoric period basically refers to the 16th  
century, which covers the first hundred years of contact with Europeans.169 This  
was a century of cultural adaptation and transformation as the Mi’kmaq found  
ways to integrate new European technology and ideas into their traditional modes  
of subsistence.170 The nature and extent of these early changes to the Mi’kmaq  
culture are evident in the archaeological record and historical sources.  
[186] The Province contends the most significant cultural change stems from the  
introduction of a new economic system. The establishment of the fur trade led to a  
transition from a migratory subsistence economy, mostly oriented toward marine  
resources on the coast, to a market-based economy with increased emphasis on the  
pursuit of furbearing animals in the interior forests. By 1550, as noted by David  
Christianson, Mi’kmaq archaeological sites in Nova Scotia begin to show  
assemblages of a broad range of goods that would have been acquired through  
trade with Europeans. When asked if Mi’kmaq archaeological sites reflected any  
changes in settlement pattern after the arrival of Europeans, Mr. Christianson  
testified:  
Yes, there was. With the arrival of Europeans, more time was now spent  
in the interior catching furbearing animals than had been the case prior to  
contact. Whereas prior to contact the seasonal focus had been primarily  
a coastal one, with some use of interior resources, after contact there’s a  
much greater attempt to harvest furbearing animals from interior  
resources… .  
[187] Gerald Penney shares this opinion. He also agreed that the description of the  
19th and 20th century Mi’kmaq as having “their backs to the sea” would not be an  
appropriate description of the Mi’kmaq prior to the development of the fur trade.  
169  
Dr. Prins suggested in his testimony that Newfoundland has an early contact period that covers 1497-  
1610 and a late contact period that covers 1610-1713.  
170  
According to Dr. Prins “Because Mi’kmaqs were among the first Indians of northeast America to have  
contact with Europeans, they had early access to European goods.” See Prins, The Mi’kmaq: Resistance, note 122  
above, p. 49.  
Page: 86  
[188] The Province submits that in this new market economy the self-reliance of  
the traditional Mi’kmaq subsistence economy gave way to a reliance on European  
goods acquired through trade. Both sides depended on each other to supply them  
with the goods that they wanted or needed. Friendship exchange trips, facetiously  
described recently as a 16th century Fulbright program for natives, were used, quite  
successfully, to build and maintain secure trade partnerships. For example, in the  
late 1570's the Governor of Bayonne invited the Mi’kmaq Chieftain, Messamoet, to  
France where he was treated like royalty. When he returned to Nova Scotia,  
Messamoet served for many years as a broker between the natives, the French and  
other Europeans trading in the area.171 There are also reports of a Mi’kmaq named  
Chief Cacagous travelling to France, sometime before 1610, on “friendship  
exchange trips”.172  
[189] The early establishment of secure trade partnerships with the French  
provided the Mi’kmaq with new types of tools, weapons and luxury items before  
many of the neighbouring inland tribes who had not yet made direct contact with  
Europeans. Bernard Hoffman notes:  
Not only did some of these items become indispensable in native life, but  
they also gave the seacoast tribes an enormous advantage in trade and  
war. The end result was that the fur trade soon became a fundamental  
part of the Indian economic structure, and led to an intensification of the  
native hunting activities and to a shift in the cultural pattern.173  
[190] The Mi’kmaq were, in Dr. Prins’ words, “ahead of the curve in terms of  
culture contact.” They adopted European technology very quickly, which altered  
their material culture to such an extent that many Mi’kmaq archaeological sites  
from the 16th century contain very few native artifacts.  
171  
The primary source for the Messamoet story is Marc Lescarbot, who reports on hearing it from  
Messamoet himself. Marc Lescarbot, History of New France (1609), a 1968 Reprint by Greenwood press of the  
original Champlain Society Publication I of 1907 [Province’s Historical Documents, vol. 2, CD 45].  
172  
The primary source for Cacagous is Father Biard: see Reuben G. Thwaites, ed. The Jesuit Relations and  
Allied Documents, vol. I (New York: Pagent Company, 1959), pp. 163-165 [Province’s Historical Documents, vol.  
74, CD 957].  
173Bernard G. Hoffman, The Historical Ethnography of the Micmac of the Sixteenth and  
Seventeenth Centures (Ph.D. diss., University of California, Berkeley, 1955), p. 32 [Province’s  
Ethnography Documents, vol. 2, ED 6].  
Page: 87  
[191] Copper kettles were one of the most important European trade items. They  
appear in significant numbers on 16th century Mi’kmaq sites and in the inventories  
of Basque vessels being outfitted for trade with the natives.174 Nicolas Denys  
wrote:  
They have abandoned all their own utensils, whether because of the  
trouble they had as well to make as to use them, or because of the facility  
of obtaining from us in exchange for skins which cost them almost  
nothing, the things which seemed to them invaluable, not so much for  
their novelty as for convenience they derived therefrom. Above  
everything the kettle has always seemed to them, and seems still, the  
most valuable article they can obtain from us.175  
[192] Dr. Prins testified the “grotesque” immobile wooden kettles that were used  
prior to the arrival of Europeans limited the Mi’kmaq to certain camping locations.  
The new copper kettles were highly valued because they were portable and,  
therefore, perhaps allowed the Mi’kmaq much more mobility and freedom.  
[193] Muskets were another important addition to Mi’kmaq material culture during  
the protohistoric period. This gave them a military advantage over other native  
groups, and also significantly increased their hunting capability. With a hunting kit  
that included bows and arrows, traps, and firearms, the Mi’kmaq “declared war on  
game animals,” which led to a serious depletion of resources in their traditional  
hunting territories. A 1642 deposition by Dericq Henesse, master of the Jupiter,  
indicates the extent of this game depletion. Hennesse stated he had advanced goods  
to the sauvages and received in exchange 200 moose hides and 500 beaver pelts.176  
[194] Bartholomew Gosnold’s famous encounter with a group of natives, who  
were sailing in a Basque shallop off the coast of Maine, is clear evidence that by  
1602 the Mi’kmaq had also embraced European sailing technology and some were  
174  
Laurier Turgeon, The French Presence and Activity on the Southern Coast of Newfoundland 1508-1655  
(Expert Report, December 2000), p. 35 [hereinafter cited as Turgeon, Expert Report]; and von Gernet, Expert  
Report, p. 52.  
175  
Denys, The Description, note 166 above, pp. 440-441 [Province’s Historical Documents, vol. 6, CD  
88].  
176  
Interrogation of Dericq Henesse, master of the Jupiter, seized at Cape Breton Island for contraband  
(October 23, 1642) [Province’s Historical Documents vol. 4, CD 64].  
Page: 88  
beginning to wear European clothing.177 Nicholas Denys also observed “that the  
Indians of the coast use canoes only for the rivers, and all have boats for the sea”.178  
[195] When European fishermen and traders came to No/rth America in the late  
15th and early 16th centuries they not only brought new technology, but deadly new  
diseases as well. The native people of North America were especially vulnerable to  
these foreign contagions and vast numbers succumbed to terrible illnesses such as  
tuberculosis, cholera, and smallpox. Dr. Prins testified:  
The population collapsed and that’s pretty much well described for all of  
the Americas, both North and South and Central America, that on a  
conservative level, you have a population decline, as a result of the  
European invasion, of about 75 percent, which means one out of every  
four survives. Three out of every four dies... and that, of course, has an  
impact on the social fabric of the communities that were afflicted... .  
[196] The contact period was also a time of religious conversion. European  
missionaries had been working sporadically in North America throughout the  
1500's, but by the turn of the century they were engaged in a more concerted effort  
to convert the “savages” to Christianity. Dr. Prins testified:  
In the 1600s, we see the activities of missionaries in Mi’kmaq country  
and that’s when we begin to see a large scale conversion. So by the end  
of the 1600s, early 1700s, then you begin to say many Mi’kmaq would  
be Catholic.  
[197] Pierre Biard, a Jesuit missionary working among the natives of eastern North  
America in the early 17th century, commented on the friendship and intimacy  
between the French and the Mi’kmaq in 1612. He observed that, “They stay over  
night among us; we rove about with them, and hunt with them and live among  
them without arms and without fear; and, as has thus far appeared, without  
danger.”179 In his memoirs, the great French explorer, Samuel de Champlain,  
observed that the “captain of Indians [Mi’kmaq Chieftain Membertou] ... promised  
177  
David B.Quinn, “Sources for the Ethnography of Northeastern North America to 1611,” National  
Museum of Man Mercury Series, Canadian Ethnology Service Paper, no. 76 (Ottawa: National Museums of Canada,  
1981), pp. 48-49 [Province’s Ethnography Documents, vol. 6, ED 11].  
178  
Denys, The Description, note 166 above, p. 196 [Province’s Historical Documents, vol. 6, CD 88].  
179  
See Thwaites, The Jesuit Relations, vol. II, pp. 49, 71 [Province’s Historical Documents, vol. 74, CD  
957].  
Page: 89  
to look after them [the French], and they should be no more unhappy than if they  
were his own children.”180 He suggested that this intimacy arose as a result of the  
fur trade. This friendship between the French and the Mi’kmaq undoubtedly  
provided the missionaries with a receptive audience and a degree of safety to  
preach the gospel.  
[198] The missionaries’ message may have offered some solace to the natives who  
were suffering from the ravages of European disease. Dr. Prins thinks a few  
natives may have converted to Christianity, not so much out of faith in the  
teachings of Jesus Christ, but as a form of inoculation against the terrible epidemics  
that appeared to spare the Europeans. He testified conversion to Catholicism was,  
however, initially used as a public expression of Mi’kmaq loyalty to the French and  
as a powerful means of securing the important economic and military alliance that  
had developed between the two groups. Catholic baptism also had the practical  
purpose of forming “fictive kinship” ties with French godparents, which, along  
with actual kinship ties through intermarriage, created strong familial and spiritual  
allegiances with a level of trust and intimacy that would stand the test of time.  
According to Pierre Biard, the Mi’kmaq “... accepted baptism as a sort of sacred  
pledge of friendship and alliance with the French.”181 The Mi’kmaq and the French  
had essentially become business partners, friends and family.  
[199] During the contact period Europeans brought a new economic system, new  
technology, new diseases, and new ideas to North America. The Mi’kmaq efforts  
to adjust to the new realities of life in the 16th and 17th centuries led to a profound  
cultural transformation. The Province describes the Mi’kmaq of the post-contact  
period as “Catholic capitalists” with an economic strategy that relied on trade  
partnerships and focused primarily on the resources of the interior forests.  
According to Dr. Prins: “No longer self-sufficient, Mi’kmaq gradually transformed  
into market hunters, producing pelts for export in exchange for imported  
commodities.”182 It was a strategy that differed significantly from the largely self-  
reliant maritime subsistence economy of the people who lived during the late  
“Ceramic Period.” The transformation of the Mi’kmaq during the contact period  
180  
Prins, The Mi’kmaq: Resistance, note 122 above, p. 59.  
181Thwaites, The Jesuit Relations, vol. II, p. 89 [Province’s Historical Documents, vol. 74, CD  
957].  
182Prins, The Mi’kmaq: Resistance, note 122 above, pp. 96, 106.  
Page: 90  
prompted anthropologist Bernard Hoffman to conclude that, “the events of the 16th  
century may have been sufficiently important to render the 17th century culture of  
the Micmac definitely unaboriginal.”183 The Province accepts his opinion may be  
considered a little extreme, but notes that the significance of contact and its  
consequences for the Mi’kmaq people of Nova Scotia should not be  
underestimated.  
[200] It is beyond question that profound cultural changes occurred during the 16th  
century in what is now Nova Scotia and parts of New Brunswick. Since the  
Defendants do not argue for a separate and discrete Mi’kmaq population in  
Newfoundland, the Province submits the question therefore becomes: were  
portions of Newfoundland ancestral to the Mi’kmaq at the time of contact or is the  
presence of the Mi’kmaq on the Island today more probably explained as a  
consequence of contact? The Province says the answer to this question lies in an  
assessment of the oral history and traditions of the Miawpukek Band, the  
archaeological record and the historical record.  
2.  
Oral Histories and Traditions  
[201] The Supreme Court of Canada has recognized that the oral histories and  
traditions of aboriginal people can play an important role in illuminating distinctive  
cultural practices. The Court has stated that in the reception of such evidence,  
“due weight” must be given to the aboriginal perspective and this perspective must  
be placed on “equal footing” with other more familiar forms of evidence.184  
[202] “Equal and due treatment” means, of course, that when oral evidence is  
presented as proof of what actually happened in the past it must be treated with the  
same critical care as other historical sources.185  
[203] In the treatment of oral evidence, anthropologists distinguish between oral  
histories and oral traditions. Oral histories are defined as recollections of  
183  
Hoffman, “The Historical Ethnography”, p. 42 [Province’s Ethnography Documents, vol. 2, ED 6].  
184  
See Mitchell v. M.N.R. (2001), 199 D.L.R. (4th) 385 (S.C.C.). For a more detailed assessment of the law  
relating to oral histories and traditions see Part IV.7.1(g) below.  
185  
For an analysis of the anthropological approach in the assessment of such evidence, see von Gernet,  
Expert Report, pp. 10-16.  
Page: 91  
individuals who were eye-witnesses or had personal experience with events  
occurring within their lifetime. Oral traditions, on the other hand, are the  
transmission of past events by word of mouth over at least a generation. “Both  
types can exist as a non-recorded performance or as a record fixed in time.”186  
(a) Mi’kmaq Oral Histories  
[204] To accommodate elders and those with infirmities, this Court convened in  
the Roman Catholic Church at Conne River on February 15-17, 2000. The Court  
received viva voce evidence from two elder residents of the community, Aloysius  
Benoit and John N. Jeddore; from one of the Defendants, Ken Drew; and from the  
Miawpukek Band’s chief, Saqamaw Misel Joe.  
[205] The first witness, Aloysius Benoit, was born in 1928 at Conne River. He  
recalled his life of trapping on the country in western Bay du Nord187 as well as  
past employment in the lumber industry, on coastal freighters and fishing boats, as  
an electrician and construction worker as well as a monitor of caribou during the  
Upper Salmon Hydro Development. The Province submits that, while certainly  
deserving of respect, Mr. Benoit’s evidence was more biographical in nature, and  
not in the nature of an oral tradition handed down from earlier times. The Province  
also argues that his evidence did not illuminate a cultural pattern that is  
distinctively Mi’kmaq, but described a life not unlike many non-aboriginal  
Newfoundlanders.  
[206] The second witness, John N. Jeddore, born in 1922, also described a rich and  
interesting life of fur trapping. He served overseas with the forestry service during  
the Second World War and was later employed in the lumbering industry and as an  
operator of a general store and a bus line. His evidence dates back to c. 1930, but  
through one oral tradition relating to a bear hunt he was able to project to his  
grandfather’s generation. Again, the Province notes his evidence was biographical  
in nature and the lifestyle described by Mr. Jeddore was not unlike that of many  
non-aboriginal Newfoundlanders.  
186  
The same., pp. 10-11.  
187  
This area is to the west of Conne River and should not be confused with the current Bay du Nord  
Wilderness Reserve or the community of Bay du Nord which is to the east.  
Page: 92  
[207] Of the Defendants, only Ken Drew provided viva voce evidence. Mr. Drew,  
born in 1948, testified that his principal occupation is carpentry. He is typically  
laid off in the winter, collects employment insurance, and spends a few weeks  
trapping at his cabin. He started trapping in 1979 and does so in the environs of his  
cabin on Koskaecodde Lake. While Mr. Drew testified that he did some hunting,  
as well as trapping, he made no mention of fishing. There are times when he has  
had to delay a trip to the cabin due to an overrun in the construction season. His  
evidence was confined to the second half of the 20th century, although he also  
recalled his father’s fur trapping, hunting, logging and construction activities.  
Again, the Province notes there was nothing in Mr. Drew’s evidence establishing  
the antiquity of the Mi’kmaq in Newfoundland, nor descriptive of a cultural  
practice distinctive of the Mi’kmaq.  
[208] The final witness to testify in Conne River was Saqamaw Misel Joe, born in  
1947. Misel Joe described his role as Chief within the community (he was  
appointed in 1983) and his experience on the country hunting and trapping as a  
young boy with his grandfather and uncle. While Misel Joe stated that he knows  
the name of his great-great-great-great grandfather, like Mr. Drew much of his  
evidence related to the second half of the 20th century.  
(b) Mi’kmaq Oral Traditions  
[209] Of the viva voce testimony at Conne River the only evidence in the nature of  
an oral tradition was a story related by John Jeddore about what happened to his  
grandfather and Reuben Lewis on a bear hunt. According to Mr. Jeddore, when  
Lewis approached what he thought was a mortally wounded bear the animal  
suddenly jumped up and attacked him. With careful aim, his grandfather, Noel  
Jeddore, shot the bear and Reuben survived to tell the tale. Although considered by  
Dr. von Gernet to be reliable, unfortunately, this story goes back no more than a  
century and does little to illuminate the arrival and antiquity of the Mi’kmaq in  
Newfoundland.  
[210] While Chief Joe could relate events dating to 18th century Nova Scotia, the  
Province submits his understanding of these events can be attributed to his literacy  
and the effect of written feedback on oral traditions. For example, the Chief  
alluded to an event in 1749, in apparent reference to the scalping proclamation of  
Lord Cornwallis. However, memory of this event, which has gained great  
notoriety in recent Mi’kmaq consciousness, is actually derived from European  
Page: 93  
documents rather than from aboriginal oral traditions. The Chief also spoke of the  
seven districts, Membertou and a Concordat with Rome in 1610. The Province  
contends the Concordat is actually a neotradition based on a mnemonic device  
which evidence indicates never belonged to the Mi’kmaq in the first place.188  
Further, Chief Joe’s description of Newfoundland’s place within the “traditional”  
seven district scheme is not in accord with the understanding of other Mi’kmaq.  
According to Dr. von Gernet, “such confusion is, in my opinion, a consequence of  
the novelty of the proposition that Newfoundland was always part of Mi’kmaq  
territory”.189  
[211] While the Defendants rely in part on treaties entered into between the British  
and the Mi’kmaq during the 18th century, the Province argues there is no evidence  
to suggest that these treaties were, or are, part of Mi’kmaq consciousness in  
Newfoundland. The Province notes neither the Chief nor elders offered anything  
in the nature of an oral tradition linking the Mi’kmaq in Newfoundland to these  
treaties or, for that matter, to the so-called “renewal” by Captain Thompson on the  
Lark in 1763. There is no evidence of an intergenerational transmission which  
suggests the Mi’kmaq in Newfoundland felt that they held special rights arising  
from treaty. The Province submits that, in fact, when asked to explain the source  
of his right to maintain a cabin in the Reserve, Ken Drew responded as might any  
Newfoundlander:  
[Matthews]  
[Drew]  
So, you feel you have a right to be in there?  
Oh, yes. I inherited that right to be in there from my grandfather.  
Your grandfather, John Hinks.  
[Matthews]  
[Drew]  
John Hinks, yes.  
[Matthews]  
[Drew]  
And is it something that is important or essential or necessary for you -  
It’s important, yes, it’s important to be on the land, enjoying the country.  
188See, R. v. Marshall, [2001] N.S.J. No. 97, upheld in [2002] N.S.J. No. 98, where Curran  
P.C.J. referred to a wampum belt in the Vatican Archives, which the Chief of the Mi’kmaq of Nova  
Scotia mistakenly believed had been made by their ancestors for the Pope when in fact it had been made  
by aboriginals in Quebec.  
189  
von Gernet, Expert Report, pp. 20-21.  
Page: 94  
[212] The absence of oral tradition is consistent with the historical record, says the  
Province, since there is not a single documentary record which speaks of Mi’kmaq  
treaty rights in Newfoundland. The Province submits that any Mi’kmaq visiting  
Newfoundland after 1761 were regarded as either interlopers belonging to the  
Government of Nova Scotia, who ought to be removed from Newfoundland, or,  
latterly, British subjects to be accommodated, or at least tolerated.  
[213] The Province contends that, since the viva voce evidence referred only to the  
past 100 years, it lacked the time frame necessary to illuminate the Mi’kmaq arrival  
in Newfoundland.  
(c) The Klu’skap Stories  
[214] In his report and testimony, Dr. Prins referred to a number of Klu’skap  
myths recorded in the mid to late 19th century which, in Dr. Prins’ words, included  
Newfoundland as part of the “traditional Mi’kmaq world view”.190 According to  
Dr. Prins these “ancient” myths and legends have been passed down since “time  
immemorial”.191  
[215] Elsewhere Dr. Prins stated:  
The Mi’kmaq culture hero Klu’skap is associated with primordial  
activities in shaping and transforming the land of the Wabanaki  
(Mi’kmaq, Maliseet, Passamaquoddy, Penobscot, and Abenaki). Given  
that there are no Kluskap stories associated with territories that are not  
ancestral to the Wabanaki peoples, the existence of several Klus’kap  
myths that specifically situate some of his activities in Newfoundland  
may serve as evidence that Mi’kmaqs have considered Ktatamkuk as part  
of their aboriginal domain since time immemorial.192  
[216] In this respect, says the Province, Dr. Prins is quite mistaken, for among the  
collection of stories relied upon by him is a story of Klu’skap travelling to England  
and France in a stone canoe with a sail made from tanned buffalo skins. According  
190  
Prins, Expert Report, p. 1.  
191  
The same.  
192  
The same, pp. 152-153.  
Page: 95  
to this story, it was through this visit that the white men came to know America.193  
However, no anthropologist or historian would seriously argue for a Mi’kmaq  
familiarity with Europe before the 16th century contends the Province.  
[217] It is unclear what Dr. Prins means by “ancient” or “time immemorial”. It  
leaves the impression of remote antiquity, but in reality, submits the Province, the  
evidence with respect to the Klu’skap stories suggests a 19th century origin.  
[218] In fact, Dr. Prins agreed the Klu’skap legends receive no mention  
whatsoever in the voluminous 17th and 18th century literature on the Mi’kmaq.194 In  
his 1996 publication, Dr. Prins wrote that these legends came to the fore in the mid-  
1800's, when it appeared that the Mi’kmaq would become extinct as a people by  
the end of the century.195 Elsewhere, in the same publication, under the chapter  
heading “Survival Under Internal Colonialism”, Dr. Prins writes:  
...[The] Mi’kmaqs found mental shelter in the realm of their collective  
imagination. Fantastic stories about kinap, brave ancestors with magic  
powers, came to the fore, along with folktales about heroic tricksters ... .  
Perhaps not surprisingly, it is during this period that the figure of  
Klu’skap, the great Wabanaki culture hero, first appears in written  
records.196  
[219] Dr. von Gernet is in agreement with Dr. Prins on the 19th century origin of  
the Klu’skap stories:  
The few references to Newfoundland in the Klu’skap stories are a  
product of a period some 350 years after first Mi’kmaq-European contact  
and in my opinion are likely not much older than the mid nineteenth  
century. As such, they are not evidence of an ‘age-old importance’ of  
Newfoundland to the Mi’kmaq, they are unlikely to have been ‘passed  
down orally since time immemorial’, and they in no way demonstrate  
that the island ‘has long featured in’ or was ‘well integrated into the  
193  
See Charles G. Leland, The Algonquin Legends of New England or Myths and Folk Lore of the Micmac,  
Passamaquoddy, and Penobscot Tribes (Boston: Houghton, Mifflin and Co., 1884; reprint, Detroit: Singing Tree  
Press, 1968), pp. 32-35, 50-57, 59-64, 127-129 [von Gernet Supporting Documents, vol. 22, Tab 205].  
194  
This literature includes the classical sources of Lescarbot, Denys, Champlain and Biard, noted earlier.  
195  
Prins, The Mi’kmaq: Resistance, note 122 above, p. 10.  
196  
The same, p. 168.  
Page: 96  
traditional Mi’kmaq world view’- that is, if by these ambiguous phrases  
Prins meant to imply a pre-contact antiquity.197  
[220] Further, says the Province, as subsequent research has shown, Glooskap the  
Divinity, published by Charles Leland in the 1880's and referred to by Dr. Prins in  
his evidence, is in fact a highly unreliable source. Dr. von Gernet states:  
Far from a single coherent tradition, Glooskap the Divinity was actually  
patched together from murky and disparate Passamaquoddy, Mi’kmaq,  
Penobscot and Maliseet sources. I am surprised that Prins has introduced  
this material, especially after a brilliant study by Thomas C. Parkhill  
demonstrated Leland’s carelessness about his sources and his deliberate  
additions to and alterations of the story.198  
[221] According to Dr. von Gernet, the anthropologist Frank Speck astutely  
recognized that “Each band of the Micmac seems inclined to localize the Gluskap  
myth”.199 For example, Cape Breton had been occupied long enough for the island  
to localize some episodes in the career of Klu’skap. This, however, is not the case  
for Newfoundland and “one searches in vain for Klu’skap stories in the  
Newfoundland literature.”200  
(d) Other Traditions  
[222] There are, however, stories of a different nature, such as that related to J.G.  
Millais which characterized Newfoundland as a “big rubbish heap”201 and the story  
related by the Reverend M.F. Power of Harbour Breton in 1909 of a tribal tradition  
among the “old Micmac”, which the Province submits suggested that ancestors of  
the Miawpukek Mi’kmaq migrated from Cape Breton in relatively recent times.202  
197  
von Gernet, Expert Report, pp. 29-30.  
198  
The same, p. 25.  
199  
Frank Speck, Beothuk and Micmac (New York: Museum of the American Indian, Heye Foundation,  
1922), p. 145 [von Gernet Supporting Documents, vol. 45].  
200  
von Gernet, Expert Report, p. 30.  
201  
J.G. Millais, Newfoundland and its Untrodden Ways (New York: Arno Press, 1967), p. 1 [Province’s  
Historical Documents, vol. 67, CD 933]. This reference was probably more of a joke than a serious tradition.  
202  
M.F. Power, “The Micmacs,” The Newfoundland Quarterly 9, no. 4 (March 1910), pp. 2-3 [Province’s  
Historical Documents, vol. 86, CD 997].  
Page: 97  
A story related by John Paul in 1914 may serve as an explanation, after the fact, of  
conflict and hostility between the Mi’kmaq and the Beothuk, but cannot be traced  
back beyond the 18th century.203 Similarly, stories recorded by Speck regarding the  
“ancients” of Newfoundland and memories of crossing the Cabot Strait could well  
relate to the migration of Mi’kmaq from Cape Breton or peninsular Nova Scotia  
after the British conquest of 1763 says the Province.204  
[223] In sum, the Province submits there is nothing in the oral history or traditions  
offered by the Defendants in support of a pre-contact Mi’kmaq association with  
Newfoundland. Indeed, says the Province, what evidence there is suggests a more  
recent migration in the late 18th century. Further, there is no evidence to suggest  
that treaties form part of the historical consciousness of the Mi’kmaq of the  
Miawpukek Band at Conne River.  
3.  
The Archaeological Evidence  
(a) The Role of Archaeology  
[224] The Province accepts anthropology to be the holistic study of human beings  
as biological organisms and purveyors of culture. This discipline may be divided  
into four major sub-fields: biological anthropology studies human evolution and  
biological variation; cultural anthropology focuses on the “evolution” and variation  
in forms of cultural expression; linguistic anthropology examines language systems  
as expressions of culture; and archaeology is concerned with the excavation and  
analysis of the material remnants of long ago cultures and forgotten ways of life.  
[225] Archaeological interpretation is the process of ascribing meaning to the  
archaeological record. It has a certain level of subjectivity which does, at times,  
provide fodder for lively scholarly debate. Yet, despite this propensity for  
disagreement, the Province submits the archaeological record is the best source of  
information about pre-contact cultures. Dr. von Gernet testified as to the  
advantages and disadvantages of using archaeological evidence. Unlike oral  
history, which is generated in the post-contact period and projected into the past,  
203  
Speck, Beothuk and Micmac, pp. 27-29 [von Gernet Supporting Documents, vol. 45, Tab 387].  
204  
The same, pp. 25-27. See also von Gernet, Expert Report, pp. 35-40.  
Page: 98  
the archaeological record was actually created in the past.205 It is, therefore, direct  
evidence against which other sources of information might be corroborated. Dr.  
von Gernet noted archaeology is the only discipline that allows us to reach far back  
into the mists of antiquity to grasp some understanding of cultures that pre-date  
written history. Also, because the archaeological record was created by the  
aboriginal people themselves, it is not as inherently biased as many of the early  
documents that were written by people who quite often did not understand or  
appreciate the strange “savage” cultures that inhabited the new world.  
[226] Archaeology can also provide evidence of human movement across bodies  
of water. Obviously, boats have to be launched from one shore and eventually  
landed on another shore. The culture of the people in these boats would not have  
changed during a brief journey, so there should be some consistency, submits the  
Province, in the cultural expression reflected in the dry-land data comprising the  
archaeological record of the two shores. The Defendants argue that the seafaring  
Mi’kmaq had the technological ability to travel from Cape Breton to  
Newfoundland with a stop-over on St. Paul’s Island. However, as Charles Martijn  
noted in 1989, “that the capacity for traversing the Cabot Strait existed in ancient  
times cannot be contested, but confirmation of this will require archaeological  
proof.” He also stated: “a final answer in this regard can only be provided by more  
intensive archaeological research along the southern coast of Newfoundland.”206  
Seven years later, despite an increasing number of research projects in  
Newfoundland, Martijn still had to admit that “archaeologists working there have  
yet to come across any cultural material which can be identified with assurance as  
being pre-contact Mi’kmaq.”207  
[227] Although scientific methods are used to collect archaeological data,  
archaeology is usually considered to be a social science. As social scientists,  
archaeologists do not work with certainties, says the Province, but explore  
possibilities and produce conclusions based on probabilities. The Province  
205  
For a detailed discussion about the uses and limitations of oral history, see Chapter 2 of von Gernet,  
Expert Report, pp. 10-41.  
206  
Martijn, “An Eastern Micmac,” pp. 212-213, 224 [von Gernet Supporting Documents, vol. 25, Tab  
234].  
207  
Charles Martijn, “5.0 Historical Review,” in Netuklemk (On the Country), note 55 above, para. 5:2: 25;  
quoted in von Gernet, Expert Report, pp. 42-43.  
Page: 99  
suggests that this lack of absolute certainty provides an opening for some to  
embark on flights of fantasy in the guise of archaeology. The Province refers to  
some of the more fantastic theories to explain how and why the Great Pyramid of  
Giza and Stonehenge were constructed. A lack of absolute certainty means that  
anything is possible. But the issue says the Province is whether anything is  
probable. While there is always the remote possibility that alien visitors built the  
Pyramid and the Stonehenge, the Province submits the available archaeological  
evidence and common sense tells us that it is most likely that they were constructed  
with the blood, sweat, and engineering skill of human beings. Archaeologists are  
well aware of the fringe element in the discipline and generally caution themselves  
not to become so overwhelmed by the possibilities that they fail to read the  
archaeological evidence to its most logical conclusion. Dr. von Gernet explained:  
...despite all of the post-modernist rhetoric that we’ve seen in the last  
twenty-five years or so, the archaeological record is an empirical record  
that constrains the infinite variability and the types of interpretations that  
we can place on it. It is not a record that is subject to infinite  
interpretation. The record, itself, constrains the manner in which we can  
interpret it. There are only so many things that you can derive from that  
record, and archaeologists have been able to come up with reasonable  
opinions based on often very little evidence and, while certainty is never  
attainable, a reconstruction of what happened must remain the aim... .  
[228] The Province concludes that, while there is a possibility the Mi’kmaq  
travelled to Newfoundland in the pre-contact period, the available archaeological  
evidence suggests, on the balance of probabilities, that they did not do so.  
(b) The Theoretical Quagmire  
[229] The Province submits the expert opinions offered by Gerald Penney and  
Helen Keenlyside on behalf of the Defendants, because of the radical theory  
adopted, place insufficient weight on the fact that no archaeological evidence of  
Mi’kmaq settlement in Newfoundland before contact has been found.  
[230] The Province accepts Mr. Penney is a highly regarded professional  
archaeologist with extensive research experience in Newfoundland. During the last  
twenty years, he has conducted more fieldwork on the south coast and the interior  
of the Island than any other archaeologist and has spent much of that time under  
Page: 100  
contract with the Miawpukek Band208 specifically searching for a pre-contact  
Mi’kmaq presence.209 The Province notes that, despite his obvious archaeological  
expertise, Mr. Penney’s Expert Report for this case focuses primarily on written  
documents from the 18th and 19th centuries.210 When asked to comment on the  
cultural affiliation of the pre-contact sites that he found in his explorations of  
Newfoundland, Mr. Penney deferred to Helen Keenlyside.  
[231] Mr. Penney was prepared to ascribe ethnicity to the Burnt Knaps site, which  
he described as the first Mi’kmaq site excavated in Newfoundland, dating to the  
last quarter of the 19th century.211 In the same article, he asserted that “we have no  
archaeological evidence of Micmac settlement in Newfoundland during the  
prehistoric period.”212  
[232] Although Gerald Penney defers to her authority, the Province contends  
Helen Keenlyside’s Expert Report and testimony are of no assistance in  
interpreting the archaeological record. Instead of focusing on the central question  
of whether, on a balance of probabilities, the archaeological record in  
Newfoundland shows a Mi’kmaq presence in the pre-contact period, Ms.  
Keenlyside chose to provide “a professional opinion on the utility of archaeology  
as a means to substantiate pre-contact Mi’kmaq presence in Newfoundland.”213  
208  
Gerald Penney is not the only archaeologist contracted by the Band to find Mi’kmaq sites. The Band  
funded Sylvie LeBlanc in an effort to identify an archaeological Mi’kmaq presence on St. Pierre and Miquelon. Ms.  
LeBlanc has searched in vain to locate such sites on St. Pierre, although Little Passage artifacts were located. See  
Sylvie LeBlanc, “Report on an Initial Archaeological Reconnaissance of Oentjoi Gtjigan and Miquelem” (August  
1997) [on file with the Court as Consent 142]; and Sylvie LeBlanc and Jean-Louis Rabottin, Cinq Mille Ans  
D’Occupation a L’Anse A Henry: Rapport D’Etape, Phase 1, Mission de Reconnaissance (Saint-Pierre et Miquelon:  
Carrefour Culturel Saint-Pierrais, 2000).  
209  
The results of Mr. Penney’s fieldwork on the south coast and central region fill a large volume on the  
subject. See Gerald Penney, Archaeology Reports, filed with the Court as Consent 135.  
210  
See Gerald Penney, “...with their backs turned towards the sea”: A Review of documents relating to the  
Mi’kmaq of Newfoundland, focused on permanent settlement at Conne River, associated land use, and resource  
exploitation in traditional Mi’kmaq territory [hereinafter cited as Penney, Expert Report].  
211  
Gerald Penney and Heather Nicol, “Burnt Knaps: A Micmac Site in Newfoundland,” Canadian Journal  
of Archaeology 8, no. 1 (1984), p. 69 [Gerald Penney, Archaeology Reports, Tab 8].  
212  
The same, p. 57.  
213  
Helen Keenlyside, Opinion Report: The Utility of Archaeology as a Means to Substantiate Pre-Contact  
Mi’kmaq Presence in Newfoundland (January 2000), p. 3 [hereinafter cited as Keenlyside, Expert Report].  
Page: 101  
The Province submits her report lapses into a high level epistemological debate in  
theoretical archaeology that explores the philosophy of knowledge and the question  
of whether we can truly develop an objective understanding of the past. In her  
judgment, archaeologists can neither prove nor disprove the pre-contact use and  
occupation of any area by the Mi’kmaq or any other specifically named ethnic  
group. The Province contends this is a strange argument for an archaeologist to  
make as it implies that archaeology does not have any practical applications in  
society. Dr. von Gernet observed that:  
...the hole left by Penney was filled by another archaeologist who offered  
the peculiar proposition that her field of study is incapable of  
illuminating the question [at bar] in the first place. If I understand this  
correctly, Mr. Penney’s labours over the course of two decades were for  
nothing.214  
[233] The Province notes Helen Keenlyside’s theoretical agenda is inspired by the  
writings of Sian Jones, a British archaeologist, whose primary research focus is the  
identification of ethnicity in European prehistory. Dr. Jones basically argues that  
ethnic groups are not discrete or static entities frozen in time and this fluidity of  
ethnicity makes the identification of ethnic groups an exceedingly difficult task,  
though not impossible. Dr. Jones assures us that “very few archaeologists have  
recognized the more radical conclusions of some recent anthropological research  
which questions the very existence of ethnic groups.”215  
[234] In fact, submits the Province, archaeologists can, with the proper  
methodological approach, observe ethnic variation in the archaeological record.  
But the level of certainty with which a specific ethnic identification can be made  
varies with the quality and quantity of evidence. Generalizations simply cannot be  
made. According to Dr. von Gernet:  
In some instances ethnicity may be reflected in material culture, in other  
cases material culture is actively used in self-expression of ethnicity, and  
in still other cases we have difficulty establishing a relationship because  
certain types of material culture transcend ethnic boundaries. While  
there are many similarities in the material culture of the indigenous  
214  
von Gernet, Expert Report, p. 44.  
215  
Sian Jones, The Archaeology of Ethnicity: Constructing Identities in the Past and Present (New York  
and London: Routledge, 1997), p. 110 [von Gernet Supporting Documents, vol. 20, Tab 195].  
Page: 102  
peoples of Canada, there are also many differences. A mapping of the  
latter will not always coincide with ethnic boundaries, but few would  
argue that things are completely arbitrary and that there is absolutely no  
connection.216  
[235] Ms. Keenlyside subscribes to the view that archaeology can only provide a  
range of probable answers on non-cognitive aspects of human behaviour, such as  
diet, technology or migration patterns. She argues the discipline cannot, with any  
degree of certainty, get inside the minds of ancient peoples to explore and  
understand their beliefs and attitudes, especially about something as tenuous as  
ethnicity. While archaeologists can prove that there were people occupying a  
particular geographical region in the pre-contact period, in her view they cannot  
prove the ethnic identity of those people. In her words, “we cannot yet prove  
archaeologically that the Mi’qmak were in pre-contact Newfoundland,” nor prove  
“that they were not” there.217 Pre-contact artifacts have to be “proven without  
doubt to be related or unrelated to historic Mi’kmaq cultures,” but “there is no  
evidence that what we know as ‘Mi’kmaq’ extends beyond historic description.”218  
This argument is tautological in the Province’s view.  
[236] Dr. von Gernet does not agree with Ms. Keenlyside’s argument. In his  
report, he states:  
One must necessarily ask, why should ‘a range of probable answers’ be  
acceptable for some aspects of archaeological inquiry, while questions of  
groups identity must be considered in terms of certainty and proof  
beyond doubt? That ‘we cannot yet prove’ also seems to suggest that the  
problem is merely a poverty of evidence, rather than an inherent  
incapacity to prove. More importantly, if the Mi’kmaq do not extend  
beyond historic description, how can Keenlyside opine that the ancestors  
of the historic Mi’kmaq ‘had probably long since been a part of  
Newfoundland prehistory,’ or that ‘some pre-contact populations in  
Newfoundland were probably ancestral to Mi’kmaq’?219  
216  
von Gernet, Expert Report, p. 45. Provincial Archaeologist, Martha Drake, is in agreement.  
217  
Keenlyside, Expert Report, p. 4.  
218  
The same, p. 17.  
219  
von Gernet, Expert Report, p. 46, referring to statements in Keenlyside, Expert Report, at pp. 12, 18. It  
was Ms. Keenlyside who obtained carbon dating of a ceramic sherd found by Mr. Penney at L’Anse a Flamme. The  
date, 630 A.D., corresponds to a Dorset occupation. See, “Report of Radiocarbon Dating Analyses”, January 28,  
Page: 103  
[237] The Province argues that the viewpoint expressed in the Keenlyside opinion  
does little to help the Mi’kmaq, or any other aboriginal group, in their quest for  
recognition. In R. v. Van der Peet,220 an aboriginal right is defined as any custom,  
practice or tradition that is an integral or defining feature of a particular culture that  
can be shown to have pre-contact origins. Furthermore, as a defining feature of a  
particular culture, it cannot be applied generally to all aboriginal groups that might  
be living in the area. The Van der Peet decision builds on R. v. Sparrow221, which  
used anthropological evidence to identify distinctive cultural features of the  
Musqueam in historic and prehistoric contexts in order to demonstrate an  
aboriginal right. In Sparrow, Dickson, C.J. and La Forest, J. stated, respectively:  
The evidence reveals that the Musqueam have lived in the area as an  
organized society long before the coming of European settlers, and that  
the taking of salmon was an integral part of their lives and remains so to  
this day. Much of the evidence of an aboriginal right to fish was given  
by Dr. Suttles, an anthropologist, supported by that of Mr. Grant, the  
band administrator.222  
The anthropological evidence relied on to establish the existence of the  
right suggests that, for the Musqueam, the salmon fishery has always  
constituted an integral part of their distinctive culture.223  
[238] The Province submits if one were to accept Helen Keenlyside’s argument  
that ethnicity cannot be identified archaeologically, then aboriginal groups have an  
impossible burden of proof in the establishment of aboriginal rights. The Province  
argues this was hardly the intention of the Supreme Court when it articulated the  
test for such rights in Van der Peet. The courts assume that anthropology, which  
includes archaeology, is a legitimate source of information about pre- and post-  
contact cultures. The Province contends the better view is that of Dr. von Gernet:  
1999, filed with the Court as MD 8..  
220  
[1996] 2 S.C.R. 507.  
221(1990), 70 D.L.R. (4th) 385 (S.C.C.).  
222  
The same, p. 398.  
223  
The same, p. 402.  
Page: 104  
“the Mi’kmaq in Nova Scotia, as also the Beothuk of Newfoundland, can in fact be  
reasonably extended beyond historic description.”224  
[239] The Province notes the Mi’kmaq of Nova Scotia have no difficulty with the  
use of archaeological evidence for the establishment of aboriginal rights in that  
Province. The Nova Scotia archaeology maps submitted into evidence in this case  
were first prepared by David Christianson, Curator of Archaeology at the Nova  
Scotia Museum, at the request of the Mi’kmaq defendant in the R. v. Marshall225  
logging prosecution.  
(c) The Direct Historical Approach  
[240] The Province explained how archaeologists use a specialized form of  
analogical reasoning known as the direct historical approach. Although it is very  
restricted in its application, it does provide a higher level of certainty than any  
other type of archaeological interpretation. It is based on the simple premise that  
the known can be used to build models of the unknown. Basically, what is known  
from the historic record of a specific community is then traced back into the  
unknown (unwritten) past of that same community through a process of direct  
stratigraphic and seriation sequencing. The approach was developed in Europe  
during the 19th century, but by the 20th century it had been successfully applied  
throughout the United States and Canada. The renowned anthropologist, Julian  
Steward, was one of its most influential proponents. In 1942 he wrote:  
Methodologically, the direct historical approach involves the elementary  
logic of working from the known to the unknown. First, sites of the  
historic period are located. These are preferably, but not necessarily,  
those of identifiable tribes. Second, the cultural complexes of the sites  
are determined. Third, sequences are carried backward in time to  
protohistoric and prehistoric periods and cultures. This approach has the  
crucially important advantage of providing a fixed datum point to which  
sequences may be tied. But, far more important than this, it provides a  
point of contact and a series of specific problems which will coordinate  
224  
von Gernet, Expert Report, p. 47.  
225  
[2001] N.S.J. No. 97 (Provincial Court) [hereinafter cited as Marshall #3].  
Page: 105  
archaeology and ethnology in relation to the basic problems of cultural  
studies.226  
[241] While the direct historical approach is primarily concerned with tracing  
cultural continuity, the Province submits it is equally useful for distinguishing  
between contemporaneous cultures. Despite Helen Keenlyside’s assertion that  
ethnicity is not visible in the archaeological record, the Province argues a careful  
application of the direct historic approach can, in fact, provide information about  
who lived where and when. In Dr. von Gernet’s opinion:  
...a rigorous and multi-faceted strategy has over the years yielded more  
than clever speculation... In various parts of Canada we have been able to  
determine with a relatively high degree of probability that a historically-  
known group developed in situ rather than migrated into an area.227  
[242] Dr. von Gernet’s report indicates that the test for aboriginal rights set out in  
Van der Peet does not impose an impossible burden of proof on aboriginal groups,  
and, in fact, he asserts that “the modern Mi’kmaq have already overcome this  
burden with the ample archaeological evidence of their pre-contact use and  
occupancy of Nova Scotia”.228  
(d) The Archaeology of Nova Scotia  
[243] The Province submits the Mi’kmaq fulfil the basic criteria for proper  
application of the direct historical approach in the interpretation of archaeological  
data. They are an ethnic group with their own distinctive cultural identity. We  
know where and how they live today and we have references to where and how  
they lived in the historic past when Europeans first arrived and wrote about them.229  
226  
Julian H. Steward, “The Direct Historical Approach to Archaeology,” American Antiquity 7, no. 4  
(April, 1942), p. 337 [von Gernet Supporting Documents, vol. 46, Tab 391].  
227  
von Gernet, Expert Report, p. 49.  
228 The same.  
229  
For example, Jacques Cartier’s 1534 encounter with the Mi’kmaq in the Bay of Chaleur; the c. 1550  
map drawn by Portuguese cartographer Lopo Homen showing Mi’kmaq place names in Cape Breton; and the 17th  
century writings of Nicolas Denys, Marc Lescarbot, and the Jesuit missionary Pierre Biard. See “The Contact  
Period”, III.B.1(a) above.  
Page: 106  
The Province argues it, therefore, does not require a huge leap of faith to place the  
historically known Mi’kmaq of the post-contact era into the pre-contact past.  
[244] According to David Christianson, archaeologists divide the archaeology of  
Nova Scotia into four different time periods: the Palaeoindian Period (11,000-9000  
years ago); the Archaic Period (9000-2500 years ago); the Ceramic Period (2500-  
500 years ago); and the Contact/Historic Period (500 years ago to present).  
Archaeologists who work in the Maritime provinces generally agree that the 483  
Ceramic Period sites in Nova Scotia are ancestral Mi’kmaq sites.  
[245] The Ceramic Period derives its name from the large amounts of pottery  
sherds found on the sites. Using the direct historic approach, archaeologists have  
been able to link this pre-contact period with the Mi’kmaq of the historic period.  
There are references in the historical sources to the Mi’kmaq switching from the  
use of ceramic pots to copper utensils after contact with Europeans. Dr. von  
Gernet noted:  
Now this Ceramic Period is interesting because one of the things we learn  
from the ethnohistoric record is a reference in passing by Marc Lescarbot  
who, as you know, was an eyewitness among the Mi’kmaq in the early  
17th century, and he said in 1606 that formerly the Mi’kmaq had made  
ceramic pots, but they had now abandoned the practice now that  
Europeans were bringing them copper kettles.  
He continued:  
...it’s not surprising that thousands of ceramics have been recovered from  
hundreds of pre-contact sites in Nova Scotia if, in fact, the Mi’kmaq had  
been making pottery prior to Europeans replacing them with copper  
kettles.  
[246] There are also references in the historical sources to the Mi’kmaq using  
stone pipes, which are found in both the pre- and post-contact archaeological  
record. Dr. von Gernet testified: “It’s much more rare than pottery, but they do  
occur, and of course, we do have very good descriptions in the ethnohistoric record  
by Lescarbot and by Nicolas Denys describing Mi’kmaq smoking pipes.”  
[247] Archaeologists have also been able to demonstrate a link between the  
historic Mi’kmaq and the pre-contact Ceramic Period through analysis of multi-  
component sites. Dr. von Gernet explained how, for example, in her study of the  
Page: 107  
Brown Site (BeCs-3) near Halifax, Helen Sheldon began with an area of known  
historic Mi’kmaq occupation and attempted to trace cultural continuities into the  
prehistoric period. She found a relatively abrupt change in the material culture of  
the site at the beginning of the historic period when Europeans first arrived, but for  
many centuries prior to contact there was very little change in the style of the  
projectile points, scrapers, and ceramics. Multi-component sites showing pre- and  
post-contact Mi’kmaq occupation have also been studied at Delorney Island in  
northeastern Nova Scotia and near the Minas Basin (the Melanson village site).230  
Dr. von Gernet concluded:  
...there is a general scientific consensus that the Mi’kmaq can, in fact, be  
traced back into the pre-contact record in Nova Scotia, and having looked  
at the evidence, I have little cause to question that archaeological  
consensus because it’s in accord with the methodologies that I’ve seen  
employed elsewhere in Canada.  
[248] The Province submits that, if the Mi’kmaq can be identified in the  
archaeological record of Nova Scotia, then it is reasonable to assume that pottery  
and other non-perishable artifacts associated with the Mi’kmaq culture would be  
found in all areas where these people maintained a substantial presence.231 Indeed  
this is the evidence Gerald Penney has sought for the Conne River Band:  
[Burrage, Q.C.]  
So they [Mi’kmaq] would bring their material culture with them,  
and that’s the kind of material culture you’re looking for in  
Newfoundland, or you have been looking for in Newfoundland.  
[Penney]  
That’s what I had been looking for. I’ve been looking for stones  
or bones or something like that that I could definitely say was  
produced in Nova Scotia and brought to Newfoundland.  
[Burrage, Q.C.] And that’s the record that you’ve not been able to find?  
[Penney]  
That’s right...  
(e)  
The Archaeology of Newfoundland  
230  
231  
von Gernet, Expert Report, pp. 53-55.  
For example, von Gernet, Expert Report, p. 56, states that sites with cultural features belonging to the  
mainland Ceramic Period have been identified on the Magdalen Islands.  
Page: 108  
[249] The Defendants submit that the small scattered nomadic aboriginal  
populations of Newfoundland combined with the climate and destructive acidic soil  
restricts the amount of archaeological information available to researchers in this  
Province. The Province questions this, noting that nomadic people do leave  
physical traces of their activity. Dr. von Gernet testified:  
Virtually all of Canada’s archaeological sites, and there are literally tens  
of thousands of them, are the remains of forager peoples......and, of  
course, the Mi’kmaq who were foragers left a significant material culture  
inventory in the Maritimes. We have literally hundreds and hundreds of  
sites which archaeologists have identified as Mi’kmaq.  
[250] Regarding the preservation of archaeological sites, his evidence was  
uncontradicted:  
I think certainly there are issues of preservation, but I’ve examined the  
ground conditions in Newfoundland, I’ve travelled extensively  
throughout the province, and I don’t see it as being any more difficult  
than in other places in Canada where I’ve done the same, and, of course,  
what we have in Newfoundland is not a paucity of archaeological sites,  
but rather we have a surprisingly large number.  
[251] Newfoundland and Labrador does, indeed, have a rich archaeological  
heritage. According to Martha Drake, the Provincial Archaeologist for  
Newfoundland and Labrador, the Island has 873 archaeological sites with 968  
identified cultural affiliations. Southern Labrador has another 267 sites with 283  
cultural affiliations.232 The archaeology of the Island can be traced back nearly  
9000 years and may be divided into several cultural traditions: Maritime Archaic  
(9000-3200 years ago); Palaeoeskimo (2800-1900 years ago), which includes the  
Groswater and Dorset people; Recent Indian (2000-500 years ago), which includes  
the Beaches, Cow Head and Little Passage people; and, Historic (500 years ago to  
present). There is a scholarly consensus among archaeologists that, of the Recent  
Indians, those occupying the Little Passage period are ancestral to the Beothuk of  
232  
Some sites have more than one cultural affiliation, hence the difference in numbers. For a detailed  
accounting see A Survey of All Known Archaeological Sites on the Island of Newfoundland and Southern Labrador,  
3 vols. (St. John’s: Culture and Heritage Division, Department of Tourism, Culture and Recreation, 2000) filed by  
Martha Drake [M.D. 2A-C]. A distribution of the sites can be seen in “Archaeological Sites in Newfoundland and  
Labrador - Maritime Archaic Indian”; “Archaeological Sites in Newfoundland and Labrador - Palaeoeskimo”;  
“Archaeological Sites in Newfoundland and Labrador - Beothuk and Recent Indian”; and, “Archaeological Sites in  
Newfoundland and Labrador - Historic Mi’kmaq, in this survey and on maps filed as M.D. 3-6.  
Page: 109  
the Historic period.233 While he initially expressed some reservation, Gerald  
Penney conceded the existence of this consensus. When asked to comment on this,  
Martha Drake stated, “I think it’s been totally accepted by archaeologists in the  
province. I’ve never spoken with nor read any report from any archaeologists in  
the province who does not take that as a given.”234 Little Passage and Beothuk are  
different words for the same cultural group. Martha Drake testified that the word  
“Beothuk” simply  
...refers to post-contact, Little Passage, identified by the introduction of  
European goods. They still maintain a lot of their Little Passage, their  
little tiny points, their stone tool assemblages that they use, their scrapers,  
you’ll still find material they used before contact. But now you see the  
addition of European nails, European ceramic associated with what  
would, say, 10 years before contact, [be] that same tool kit.... It’s just the  
addition of European goods.  
[252] Martha Drake noted archaeologists can state this with certainty because  
some archaeological sites, such as Boyd’s Cove and Russell’s Point, show a clear  
sequential association between the Little Passage and Beothuk components over  
time.235 Gerald Penney also acknowledged the temporal proximity between some  
Little Passage artifacts and Beothuk artifacts. He noted radiocarbon dating for  
some Little Passage artifacts comes close to, or overlaps the contact period: L’Anse  
à Flamme 820 AD ± 80; Inspector Island 1260 AD ± 40 and 1340 AD ± 60;  
Temagen Gospen 1420 AD ± 50; and Couteau Cove 1500 AD ± 100.  
[253] Dr. von Gernet noted it is also generally agreed in the archaeological  
community that the Little Passage/Beothuk people are not the same cultural group  
as the Ceramic/Mi’kmaq people. Although they overlap in time, they are  
233  
There are 40 Recent Indian, 39 Little Passage, 24 Beaches, 14 Cow Head, and 73 Beothuk sites  
scattered around Newfoundland. See, Survey [M.D. 2A, M.D. 2B, M.D. 2C]; and “Archaeological Sites in  
Newfoundland and Labrador - Beothuk and Recent Indian” [M.D. 5]. It was Mr. Penney who first coined the term  
Little Passage, after artifacts found at the L’Anse à Flamme site at the mouth of Bay d’Espoir.  
234  
See also von Gernet, Expert Report, pp. 59-60.  
235  
von Gernet, Expert Report, p. 61, notes that John Guy saw a Beothuk camp on the Russell’s Point site  
on October 26, 1612 and Boyd’s Cove is the location of an historic Beothuk assemblage dating to 1650-1720.  
Page: 110  
considered to be “sufficiently dissimilar to warrant archaeological distinction.”236  
During his viva voce evidence, Dr. von Gernet stated:  
...as far as I can tell from the archaeological literature, these Little  
Passage people have never been connected with the ancestors of the  
historic Mi’kmaq on Cape Breton or on Peninsula Nova Scotia, and if  
anything, most of the literature points to a connection with Labrador, or  
the Quebec/Labrador border region. There have been suggestions that  
it’s related to the progenitors of the historic Innu. So the connection is  
closer to the Innu. In other words, it’s closer to the Strait of Belle Isle  
than it is to the Cabot Strait.  
[254] The site record forms filed by archaeologists with the Province’s Historic  
Resources Division record some 39 Little Passage and 73 Beothuk sites distributed  
throughout virtually all major bays on the Island as well as the interior, including  
the south and west coasts.237 In addition, there are a further 40 sites simply  
recorded as Recent Indian, some of which are Little Passage.238  
[255] Unlike Nova Scotia, the pre-contact culture of Newfoundland is not  
characterized by the use of ceramics. A few isolated fragments, radiocarbon dated  
to approximately 450-500 A.D., were found in a Recent Indian Component at Port  
au Choix239 and a single pot sherd, identified as Point Peninsula, was found  
associated with Dorset cultural material at the L’Anse à Flamme site.240 While this  
236  
von Gernet, Expert Report, p. 62.  
237  
See map, “Archaeological Sites in Newfoundland and Labrador - Beothuk and Recent Indian” filed by  
Martha Drake [M.D. 5].  
238  
A Survey of All Known Archaeological Sites on the Island of Newfoundland and Southern Labrador,  
vol. 1 (St. John’s: Culture and Heritage Division, Department of Tourism, Culture and Recreation, 2000), p. 8 [M.D.  
2A]. Penney testified that there are Little Passage sites in the Codroy Valley and in Furbey’s Cove, Hermitage Bay.  
Drake, also indicated that the sites at Boyd’s Cove and Inspector Island were initially listed as Recent Indian, but are  
actually Little Passage.  
239  
M.A.P. Renouf and Trevor Bell, The Port au Choix Archaeology and Sea Level History Project  
Preliminary Report of the 1998 Field Season (St. John’s: Culture and Heritage Division, Department of Tourism,  
Culture and Recreation, April 29, 1999), p. 15 [von Gernet Supporting Documents, vol. 40, Tab 353]. See also  
M.A.P. Renouf and Trevor Bell, Gould Site, Port au Choix 1999 Report of Field Activities (St. John’s: Culture and  
Heritage Division, Department of Tourism, Culture and Recreation, 2000), pp. 12-13.  
240  
Gerald Penney, “A Point Peninsula Rim Sherd from L’Anse a Flamme, Newfoundland,” Canadian  
Journal of Archaeology 5 (1981), pp. 171-172 [Gerald Penney, Archaeology Reports, Tab 4]; Letter from J.V.  
Wright to Penney, September 23, 1980; and, Report of Radiocarbon Dating Analyses filed by Martha Drake [MD 8].  
Page: 111  
does suggest the possibility of trade in the region, the Province submits it is hardly  
sufficient evidence that Ceramic Period people occupied Newfoundland. Dr. von  
Gernet explained:  
...[an] isolated find does not give us a Ceramic Period in Newfoundland.  
A Ceramic Period is identified based on pretty significant assemblages,  
not on isolated finds. So, you know, I suppose, loosely you could say  
that there was a kind of Ceramic Period in Newfoundland, but it’s not  
really an archaeological assemblage that’s in the usual scientific sense of  
the term.  
[256] Twelve Mi’kmaq sites have been identified in Newfoundland, but none of  
them date to the pre-contact period. In fact, the European artifacts found on these  
sites indicate that they are all very recent 19th and 20th century occupations.241  
There is a possibility that other post-contact sites identified as European may be, at  
least in part, Mi’kmaq given that, by this time, they had already acquired European  
goods.  
[257] The Defendants and archaeologists testifyiing for them suggest that the pre-  
contact Mi’kmaq sites simply have not been found yet and that, in this case, “an  
absence of evidence is not evidence of absence.” The Province submits this is  
scientifically unsound because there is, in fact, a great deal of archaeological  
evidence in Newfoundland. Dr. von Gernet testified:  
...among the 54 volumes that I’ve submitted in the supporting documents  
are numerous archaeological analyses and theses and so forth, and I  
looked in vain in that literature for any reference to a single – out of the  
873 - a single pre-contact Mi’kmaq artifact or site that’s been identified  
in Newfoundland. Not one pre-contact Mi’kmaq site. Instead what we  
have are hundreds of sites occupied by the ancestors of the Beothuk and  
unrelated groups scattered throughout the island, including, incidentally,  
in areas where the Mi’kmaq settled long after their first contact with  
Europeans. ...it’s not as if we have no evidence whatsoever  
archaeologically of a Mi’kmaq presence, but the sites that have been  
identified so far, and have been associated with the Mi’kmaq, have been  
post-contact.  
He concluded:  
241  
See, “Archaeological Sites in Newfoundland and Labrador - Historic Mi’kmaq” filed by Drake [M.D.  
2A, Tab 5].  
Page: 112  
In this case, we’re not actually dealing with an absence of evidence.  
What we have instead is we’re confronted with the presence of a great  
deal of data. It’s just that the evidence that we do have, these hundreds  
and hundreds of sites, on the balance of probabilities, point to the  
Beothuk rather than the Mi’kmaq.  
[258] The Province submits the direct historical approach shows evidence of  
Mi’kmaq pre-contact occupation and use of Cape Breton, mainland Nova Scotia  
and even the Magdalen Islands. The same approach shows evidence of Beothuk  
pre-contact (i.e. Little Passage) occupation and use of Newfoundland and St.  
Pierre. However, notes the Province, despite Gerald Penney’s efforts on behalf of  
the Miawpukek Band during the last twenty years, the archaeological record does  
not support a Mi’kmaq pre-contact occupation and use of any part of  
Newfoundland. Further, says the Province, Newfoundland has had more  
archaeological investigation than Nova Scotia, due in part to Newfoundland’s  
graduate program in archaeology. Cape Breton, in turn, has had less archaeological  
investigation than mainland Nova Scotia, yet archaeologists have had no difficulty  
in locating pre-contact Mi’kmaq (Ceramic) sites there, as noted by Christianson  
and Drake.  
[259] The Van der Peet test states that an aboriginal right must be a tradition,  
practice or custom that existed as an integral or defining feature of that particular  
cultural group “prior to contact with Europeans.”242 The Province claims the  
archaeological evidence suggests that Newfoundland was not a part of Mi’kmaq  
traditional hunting territory prior to contact. The archaeological evidence,  
therefore, does not support the Defendants’ claim for an aboriginal right to hunt,  
fish and trap on the Island, but rather is compelling evidence to the contrary, says  
the Province. It also argues the historical record of the five hundred years  
following initial contact is consistent with the archaeological evidence.  
4.  
The Protohistoric Evidence  
(a) The French Notarial Records  
242  
R. v. Van der Peet, note 146 above, para. 44.  
Page: 113  
[260] Dr. Laurier Turgeon’s analysis of historical documents from the 16th and  
early 17th centuries provides compelling evidence, submits the Province, that the  
initial contact between the Mi’kmaq and Europeans occurred, not in  
Newfoundland, but further to the west, on the mainland of the eastern seaboard and  
Cape Breton Island. Dr. Turgeon testified this contact is directly linked with the  
development of the fur trade, a rapidly developing and lucrative, commercial  
enterprise in the new world that was not associated with the Island of  
Newfoundland at that time.  
[261] Dr. Turgeon’s data was gathered primarily from the notarial records  
preserved in the archives of the great port cities of Bordeaux, Rouen, and La  
Rochelle.243 Bordeaux had the most complete archive with over 6000 documents  
dealing with fishing and trade in North America during the 16th century.  
Unfortunately, the notarial records at Rouen and La Rochelle were not as well  
preserved, particularly after the 1560's. Also, although the ports of St. Malo,  
Bayonne, St. Jean de Luz and Ciboure were involved in outfitting ships for the new  
world during the 16th century, the records are not well preserved until the 17th  
century. This lack of preservation is a common problem in historical research. But  
despite the problems with preservation of notarial records, there are a large number  
of these documents available, which provides researchers with a continuous  
account of events that occurred. Also, Dr. Turgeon noted, because notarial records  
are legal contracts, they offer a reliable and detailed account of the commercial  
transactions between the merchants and the owners and suppliers of ships being  
outfitted in those ports. When used in conjunction with the travel accounts of early  
explorers, they provide a great deal of insight into this murky period of  
Newfoundland history. Dr. Turgeon stated:  
Although notarial records are much less descriptive and elaborate than  
administrative reports and travel accounts, the information they contain is  
more reliable, precisely because it is more fragmentary and factual. The  
former types of documents are more interpretative and rhetorical by  
definition. Brought together, the information gathered from both types of  
documents presents a more complete and accurate picture of the  
development of trade and of European contacts with Amerindian  
populations in Northeastern North America.244  
243The Defendants’ expert witness, Dr. Prins, testified that he was not familiar with the French  
notarial records.  
244Turgeon, Expert Report, p. 4.  
Page: 114  
[262] He reiterated this view during his court testimony, stating that the notarial  
documents are:  
...in a sense more factual, and in a sense also more reliable because  
there’s no – we have no reason to think that people were lying when they  
were providing this information, and the use of the notary was sort of a  
way of guaranteeing that they weren’t... There’s no reason for us to  
question them to the same extent that we would question travel literature,  
in terms of their reliability.  
(b) The French Fishery in Newfoundland  
[263] During the 16th and early 17th centuries the French, particularly the French  
Basque, were the Europeans who were most active in the Newfoundland fishery.  
The earliest documented evidence of French participation in the cod fishery is a  
1508 reference to a vessel from Brehat returning from the “New Found Lands.”  
Another vessel was outfitted at Dahouet in 1510. Throughout the 1520's and  
1530's there was a gradual increase in the number of vessels being outfitted, but by  
the 1540's and 1550's there had been a great upsurge of interest in the fishery  
around Newfoundland and the Gulf of St. Lawrence. The notarial records indicate  
that the port cities of Bordeaux, Rouen, and La Rochelle outfitted up to 150 ships  
in 1559 and by 1565 the number had increased to 156. These figures do not  
include the ships that would have been outfitted at ports such as St. Malo and St.  
Jean de Luz, so the actual number of French ships engaged in the fishery at that  
time may have been much higher. In 1578 the English navigator, Anthony  
Parkhurst, estimated the number of European ships around the “New Found Land”  
to be between 350 and 380. Robert Hitchcock estimated that the French fleet  
included approximately 500 ships in 1580. These figures have often been  
dismissed by historians as exaggerations, but the notarial records suggest that they  
are realistic estimations. A fleet of 350 to 380 ships would have carried between  
8000 and 10,000 men. This matches the formidable trade network between Europe  
and the Caribbean at the time. Indeed, at La Rochelle there were only two records  
of ships being outfitted for Central America between 1523 and 1565, but at least  
269 were outfitted for the “New Found Land.”245  
245  
Turgeon, Expert Report, pp. 9-11.  
Page: 115  
[264] The notarial records indicate that the French fishery was concentrated on the  
southern portion of the Avalon Peninsula. But there is evidence from supplemental  
sources that the French, primarily the Basque, were also fishing and whaling along  
the southern coast of Labrador, the Northern Peninsula and the west coast of the  
Island. Jacques Cartier encountered a vessel from La Rochelle fishing for cod in  
the Straits of Belle Isle during his 1534 voyage and legal depositions provided by  
fishermen in 1542 indicated that there were approximately 17 ships fishing in that  
part of Newfoundland in 1537.246 The Grace of Bristol sailed along the south and  
west coast in 1594 and reported finding the wreckage of “2 great Biskaine ships”  
with 700 to 800 whale fins, broken casks of train and other commodities in Bay St.  
George. They also encountered “savages” who stole the two pinnaces that the  
Bristol men had acquired from the Basque who were fishing in the area.247  
Although these natives are not specifically identified in the report, Dr. Turgeon  
concluded, based on the location of the incident and their reluctance to trade, that  
they were probably Beothuk.  
[265] Dr. Turgeon testified there must have been a substantial amount of activity  
in the area known as the “Basque Coast”, but, unfortunately, due to the lack of  
preservation of the notarial records from the major Basque ports, it is difficult to  
ascertain the true extent of the fishery from that area. There is, however, no doubt  
that the Avalon Peninsula as well as the south coast was a beehive of activity. In  
1527 there were 14 fishing vessels in St. John’s alone. In 1535 Cartier encountered  
several French and Breton ships at the Isles of St. Pierre. As the century wore on,  
the English began to infiltrate St. John’s and the north east Avalon and the French  
fishermen evidently made use of much of the southern coastline. The notarial  
records make references to the port of Conception in Conception Bay,248 Cape Race  
(“Capderase”), Trepassey (“Trepasse”), and St. Mary’s (“Ste Marie”).249 However,  
246  
The same, pp. 21-23. See also Ramsay Cook, ed., The Voyages of Jacques Cartier, note 162 above, p.  
9.  
247  
Quinn, New American, vol. IV, pp. 64-65 [Province’s Historical Documents, vol. 2, CD 38].  
248  
Sale of a Shallop taken at the port of “Conception in Newfoundland, January 21, 1550 (Departmental  
Archives of the Gironde, 3E 9843), f. 553r-v [Province’s Historical Documents, vol. 91, CD 1030]; and Declaration  
of whaling and cod fishing at Conception, for the Baptiste of Saint Jean de Luz, November 5, 1555 (Departmental  
Archives of the Gironde, 3E - 2407), f. 1032r-v [Province’s Historical Documents, vol. 91, CD 1031].  
249  
Sale of cod fish from Cape Race [“Capderase”] to be brought back on the Sebastienne of Capbreton,  
November 23, 1555 (Departmental Archives of the Gironde, 3E - 9550), ff. 353v-354v [Province’s Historical  
Page: 116  
by the end of the 1550's Placentia250 had emerged as the primary destination of  
vessels outfitted in Bordeaux, La Rochelle and the Basques ports and remained the  
most prominent centre of French activity in Newfoundland until the 18th century.251  
According to Dr. Turgeon, it is quite apparent in the documents that:  
...the fish which is caught in Placentia is considered prime cod fish,  
premium cod fish, because it is often the cod fish that is paid most for  
and it’s also indicated there often the buyers, the people who are buying  
the fish, specified that they want cod fish from Placentia.  
[266] The importance of the northern regions of the new world during the 16th  
century is quite apparent from the existing records. It was not a marginal  
backwater where only a few of the more adventurous fishermen dared to venture.  
There was, in fact, a vibrant fishery that attracted literally thousands of Europeans  
Documents, vol. 91, CD 1032].  
250  
Dr. Turgeon testified that Placentia first appears on the Desceliers map of 1546 and the Vallard map of  
1547 and then fairly regularly on maps after those dates.  
251  
Sale of cod fish from Placentia, The Magdaleine of Saint Jean de Luz, April 6, 1558 (Departmental  
Archives of the Gironde, 3E-2410), f. 84v - 85r [Province’s Historical Documents, vol. 91, CD 1033]; Sale of Cod  
fish from Placentia, the Saint-Espirit of Saint Jean de Luz, April 7, 1558 (Departmental Archives of the Gironde, 3E-  
2410), f. 98v - 99v [Province’s Historical Documents, vol. 91, CD 1034]; Sale of Cod fish from Placentia, the Marie  
of Saint Jean de Luz, April 9, 1558 (Departmental Archives of the Gironde, 3E-2410), f. 110v-111v [Province’s  
Historical Documents, vol. 91, CD 1035]; Anticipated sale of 6,000 Cod fish from Placentia, Newfoundland, from  
the cargo of the Bonne Adventure of Saint-Jean-de-Luz, January 16, 1565 (Departmental Archives of the Gironde,  
3E-2417), f. 998v-999v [Province’s Historical Documents, vol. 91, CD 1041]; Anticipated sale of 2,500 cod fish  
from Placentia Newfoundland, from the cargo of the Bonne Adventure of Saint-Jean-de-Luz, January 18, 1565  
(Departmental Archives of the Gironde, 3E-9850), f. 416v-418v [Province’s Historical Documents, vol. 91, CD  
1042]; Charter party of the Baillotte of Arvert for the delivery of dried Cod fish from Placentia and Saint Marie to  
Saint Sebastian, December 8, 1565 (Departmental Archives of the Gironde, 3E-2418) f. 858r-859r [Province’s  
Historical Documents, vol. 91, CD 1048]; Sale of Cod fish from “Placentia or Grand Bay, “ The Marie of Saint Jean  
de Luz, March 29, 1570 (Departmental Archives of the Gironde, 3E-2424) f. 524r-525r [Province’s Historical  
Documents, vol. 91, CD 1051]; Bottomry loan on the Catherine of Capbreton bound for the Cod fishery at Placentia,  
December 12, 1570 (Departmental Archives of the Gironde, 3E-2424), f. 1264r-1266r [Province’s Historical  
Documents, vol. 91, CD 1053]; Victualing the Catherine of Saint Vincent for Placentia, February 10, 1575  
(Departmental Archives of the Gironde, 3E-5415), f. 232r-235r [Province’s Historical Documents, vol. 92, CD  
1056]; Charter party to transport cod fish from Placentia on the Francoise of La Tremblade, for La Rochelle,  
February 9, 1585 (Departmental Archives of the Gironde, 3E-3918), f. 86v [Province’s Historical Documents, vol.  
92, CD 1062]; Outfitting the Domingine of Bidard for Placentia, Newfoundland, March 28, 1585 (Departmental  
Archives of the Gironde, 3E-3918), f. 211v-213v [Province’s Historical Documents, vol. 92, CD 1064]; Charter  
party of the Don-de-Dieu of St. Gilles-sur-vie to transport cod fish from Placentia to Sevilla, Spain, December 16,  
1585 (Departmental Archives of the Gironde, 3E-5426), f. 696v-697v [Province’s Historical Documents, vol. 92, CD  
1066]; Victualing for Placentia, the Marie of Bordeaux, March 13, 1596 (Departmental Archives of the Gironde, 3E-  
3927), f. 328r-v [Province’s Historical Documents, vol. 92, CD 1071]; Provisioning for Placentia, the Marchand  
Royal of Scotland, March 19, 1596 (Departmental Archives of the Gironde, 3E-3927), f. 375r-376r [Province’s  
Historical Documents, vol. 92 , CD 1072].  
Page: 117  
to Newfoundland and the surrounding area every year. The Defendants’ expert  
witness, Dr. Prins, admitted to being surprised by the amount of activity in the  
region. He stated:  
... I was actually amazed once I was going through both the various  
French records, as well as the records that are available in this country,  
that I was astounded at the quantity and the rapid increase of the number  
of voyages and the enormous number of men involved in these summer  
fisheries.  
(c)  
The Development of the Fur Trade  
[267] The fur trade developed alongside the fishery as a means for fishermen and  
whalers to supplement their somewhat unpredictable income from the sea. During  
the late Medieval Period and early 16th century, fishermen from continental Europe,  
who fished off the coast of Iceland, Ireland and Scotland, often traded with the  
locals. When these fishermen and whalers came to the new world they continued  
this practice by establishing trade relationships with the natives of North America.  
Given the large number of ships and men coming to Newfoundland in the 16th  
century, the Province submits it would be reasonable to expect that there was also a  
substantial fur trade here. The notarial records indicate that this was not the case.  
According to Dr. Turgeon:  
There is evidence of trade between fishers and Amerindians from the  
1530s onward in different parts of eastern Canada: the coast of Labrador,  
the Gaspé peninsula, Canada, Cape Breton Island, Nova Scotia and  
probably as far south as present-day Maine. Although there were large  
numbers of French ships outfitted for the southern coast of  
Newfoundland throughout the sixteenth and the first half of the  
seventeenth century, there is no first-hand evidence of direct trade with  
Amerindians in this area. In fact, it is one of the few areas where direct  
and regular trade with Amerindians does not seem to have occurred.252  
[268] There is some evidence that trading relationships between Europeans and the  
native inhabitants of the new world had been established very early in the 16th  
century. In July of 1534 Jacques Cartier encountered a group of about 300  
Mi’kmaq in Chaleur Bay who were already familiar with European traders and  
were eager to draw the attention of passing ships to come ashore so they could  
trade their pelts. Later that same year, Cartier met with another group of natives,  
252  
Turgeon, Expert Report, p. 28.  
Page: 118  
who, Dr. Turgeon suggests, were most likely Montagnais, along the north shore of  
the St. Lawrence, near Natashkwan.253 In a 1542 deposition for the Spanish Crown,  
Robert Lefant testified that in 1537 he had been cod fishing in Brest (Riviere St.  
Paul), where the Indians traded skins in exchange for ironware and understood  
several European languages.254  
[269] According to Dr. Turgeon, the notarial records show an almost continuous  
stream of references to fur trading after the 1550's, which indicates that it had  
changed from an unofficial trade that fishermen used to supplement their income to  
a large scale commercial activity aimed at earning profits for merchants in Europe.  
The Province submits the most interesting and, for the purposes of this case,  
important feature of these records is the clear distinction that is made between the  
fishery, which is carried out in Newfoundland, and the fur trade, which takes place  
on the “coast of Florida.” During his testimony, Dr. Turgeon stated that:  
... the reverse is never true. You never find references to fur trading in  
Newfoundland, and then you’ll never find references to cod fishing in Florida,  
and fur trading in Newfoundland, for example. That I’ve never encountered.  
[270] A review of the French maps of that period shows that in the 16th century the  
“coast of Florida” was a general term that referred to the whole Atlantic seaboard,  
including Cape Breton and Nova Scotia, but excluded the Island of  
Newfoundland.255 Dr. Turgeon provided the following explanation of the  
nomenclature relating to the region:  
...it’s important to specify that the geographical expressions that are used  
to designate different parts of North America which were only  
progressively being discovered at the time, become more and more  
precise as we advance in the century. And at the first, say the first half of  
the century, the designations are usually quite general. The term that is  
most often used is the “New Found-Lands.” Quite generally, especially  
until Cartier’s voyages in the 1530s, the general– the designation is  
usually the New-found-land and without being more specific than that,  
253  
Dr. Turgeon explains that, although his report is about the French presence on the south coast, he  
included examples to indicate that there was also trade going on in the Strait of Belle Isle in these early years and  
that it most likely involved the Montagnais and St. Lawrence Iroquoian groups.  
254  
Turgeon, Expert Report, pp. 30-31; see also Ramsay Cook ed., The Voyages of Jacques Cartier, note  
162 above, pp. 20-21.  
255  
Turgeon, Expert Report, pp. 32-34.  
Page: 119  
but then as we go along, as the century wears on, the activity increases,  
so there’s more and more activity going on especially after the – 1540s  
and 50s, there’s more and more ships being outfitted, and so and also the  
area becomes better known, names are given to different geographical  
locations, and the documents become more and more precise in their – in  
the designations of these different places. And so, in the second half of  
the century, for example, notaries will start distinguishing between  
Newfoundland which will then be identified as an island, whereas in the  
first part of the century it was always, that wasn’t always the case. And  
places like Grande Baye, which represents the Strait of Belle Isle; Canada  
which is generally the St. Lawrence River, the Estuary, everything sort of  
west of Gaspe... And so generally especially in the second half of the  
century, the notarial records are much more precise... .256  
[271] When asked if, in the second half of the 16th century, the term Canada would  
have included Newfoundland, Dr. Turgeon responded:  
Oh no, they would be definitely different, because actually in one of the  
notarial records, they actually specify that Canada is beyond Gaspe... So  
in their minds...it was pretty clear what they meant by Canada.  
[272] There are several examples of this geographical dichotomy between fish and  
fur in the notarial records. In 1560 the Bonadventure of Havre de Grace was  
outfitted to, “go to Newfoundland and Florida for the cod fishery and fur.”257 Four  
years later the Jehan of Honfleur was outfitted, “to go to Newfoundland for the cod  
fishery and to Cape Breton for the fur trade, and other merchandise of the said  
places.”258 The 1566 contract of the Fleur de Lys states that the ship will go to  
Terre Neuve to fish for cod “a la terre” and then on to Florida to barter for furs.259  
In 1583 an expedition led by Etienne Belanger from Rouen “had traffique with the  
256  
For location of Grand Bay on a Dutch map of 1687, see Johannes van Keulen, Terra Nova (1687),  
Association of Canadian Map Libraries, Facsimile Map Series, no. 56 (n.p.: the Association, 1980).  
257  
Loan for the Bonadventure of the Havre de Grace bound for Newfoundland and Florida, December 14,  
1560 (Departmental Archives of the Seine Maritime, series 2E1/430) [Province’s Historical Documents, vol. 91, CD  
1038].  
258  
Outfitting contract for the Jehan of Honfleur bound for Newfoundland and Cape Breton, March 1, 1564  
(Departmental Archives of the Seine Maritime, series 2E1/881) [Province’s Historical Documents, vol. 91, CD  
1040].  
259  
[Contract of the Fleur de Lys], December 19, 1565 (Departmental Archives of the Seine Maritime,  
series 2E1/444) in Bernard Allaire, Pelleteriers, Manchons et Chapeaux de Castor: Les Fourrures nord-américaines  
à Paris 1500-1632 (Paris: Les Presses de L’Universitié De Paris - Sorbonne, 1999), p. 59 [Turgeon Supporting  
Documents, vol. 6, Tab 103].  
Page: 120  
people which are of verie good disposition and stature of bodie,” in Cape Breton,  
the coast of Maine, and around the Straits of Canso, but not Newfoundland. The  
account clearly identifies the Island as a separate area by reporting that the fish in  
the region visited during this expedition are “bigger and better than that of New  
found Land.”260  
[273] The Basque also saw the fishery and the fur trade as location-specific  
commercial activities.261 Many of the available documents show that they often  
sent ships on joint fishing and trading ventures in the new world. For example, in  
1586 Micgueto Doiharsabal, master of the Marie of St. Vincent, victualled his ship  
to go, “to Newfoundland for the codfishery, whaling, and other fishing, as well as  
to Canada to trade and negotiate with the savages in furs and other merchandise.”262  
In 1587 Johannis Dagourrete outfitted the Lande of Talemont to go, “to  
Newfoundland and to Canada for the cod fishery, whaling and other fishing, and  
for trade and negotiation with the savages of the said Canada.”263 Sometimes  
convoys with ships specifically outfitted for either the fishery or fur trade would be  
sent as a single venture to the new world. There is even evidence that  
Newfoundland served as the base for organizing trade on the mainland. The 1584  
contract outfitting the Marie of St. Vincent states that the ship will, “go to  
Newfoundland for the fishery, trade, and negotiations in merchandise at the place  
in Canada, or another place that he will be advised to go from the said  
Newfoundland.”264 Dr. Turgeon summarized this fish and fur scenario in the  
following words:  
260  
Quinn, New American, vol. IV, pp. 307-308 [Turgeon Supporting Documents, vol. 7, Tab 104].  
261  
Dr. Turgeon stated that he knows of no references to St. Malo fishermen trading for furs on the  
southern coast of Newfoundland: “...from all of the evidence that I’ve been able to gather, this is what the evidence  
points to, and I haven’t found a clear reference to fur trading in Newfoundland, and less so the southern part of  
Newfoundland.”  
262  
Victualing the Marie of Saint Vincent for Newfoundland and Canada, Duharriet and Doyharsabal, April  
30, 1586 (Departmental Archives of the Gironde, 3E-5427), f. 265v-267v [Province’s Historical Documents, vol. 92,  
CD 1067].  
263  
Lease of the Lande of Talemont for Newfoundland and Canada, February 5, 1587 (Departmental  
Archives of the Gironde, 3E-5428), f. 81v-82v [Province’s Historical Documents, vol. 92, CD 1068].  
264  
Bottomry loan on the Marie of St. Vincent for Newfoundland and Canada, April 28, 1584  
(Departmental Archives of the Gironde, 3E-5425), f. 439v [Province’s Historical Documents, vol. 92, CD 1059].  
Page: 121  
The crew was to set up a shore station for the fishery in Newfoundland,  
probably at Placentia, and the vessel would be directed to the fur trade  
from that place, probably depending on the climate and on information  
gathered from other fishers. At the season’s end, the fur trading ship  
could rejoin its cohort off Newfoundland before the journey home,  
rounding out its cargo of furs with dried cod.265  
[274] The Dutch notarial records show a similar geographical dichotomy. The  
1606 voyage of the White Lion (Witte Leeuw) is often described in secondary  
sources as an expedition involving trade and privateering on the coast of  
Newfoundland and in St. Mary’s Bay. However, Dr. Turgeon noted that an  
examination of the original notarial records, located in Amsterdam, indicates that  
this vessel did not trade with natives in Newfoundland. The White Lion was  
actually outfitted for the fur trade in Canada, but stopped in Newfoundland to  
engage in some privateering on its way back from the mainland. By this date, there  
was not as much confusion about the geography of the region and most Europeans  
were distinguishing between Canada and Newfoundland. The fur trade was still  
seen as a distinctly Canadian activity, said Dr. Turgeon.  
[275] The Province submits the apparent role of the southern coast of  
Newfoundland as the administrative centre of the French fishery and of the fur  
trade of the Island means that the area would have been known to most of the  
people, native and European, who were involved in these activities on the Island  
and on the mainland. The Province argues this provides some clarification of the  
often cited encounter between Bartholomew Gosnold and a group of natives sailing  
in a Basque shallop along the coast of Maine in 1602. One of the natives was  
wearing European clothing and claimed that they had been trading nearby with  
Basques from St. Jean de Luz. One account states that the natives were able to  
draw the surrounding coastline and were familiar with the name Placentia, but  
another account of the incident does not specifically mention Placentia. In Dr.  
Turgeon’s opinion the most reasonable conclusion is that the natives traded with  
the Basques, not in Placentia, but near the place of their reported encounter with  
Gosnold,  
265  
Turgeon, Expert Report, p. 36.  
Page: 122  
...which would have been 43rd degree latitude, and in the vicinity again of  
the coast of Maine or the mouths of the Penobscot, the Kenebek, or  
perhaps even – more likely the Kenebek or the Penobscot River.266  
[276] Similarly, an account written in 1612 by the Jesuit Priest, Father Biard,  
stated that the huge Island at the mouth of the St. Lawrence, known as Terre-Neuve  
to the French, was called “Presentic” by the Indians of Acadia.267 Hewson points  
out that the word is a Mi’kmaq variation of the word “Placentia”; a place name  
with European, not Mi’kmaq origins.268 Biard’s account, therefore, says the  
Province, does not prove that the Mi’kmaq actually named Placentia, or even went  
there, but only demonstrates that the native people of Acadia knew of Placentia.  
This is a reasonable expectation, especially in the early 17th century, as many  
Europeans apparently would have stopped at Placentia before proceeding to the  
mainland, where they participated in the fur trade with the natives. In Dr.  
Turgeon’s words:  
... with the better context that the notarial records give us, we have an  
idea now, we realize that the French were trading on this coast and had  
been for almost half a century, and so it’s not surprising that the Native  
Americans of this area had heard of Placentia because this is where many  
of these vessels seem to have been stationed when they came to the new  
world, and this is where many of them were actually fishing. So this  
corresponds quite well with what we know about Placentia as being a  
very major place for the fishery, and for European activity in the new  
world during the second half of the 16th century.  
[277] The Province notes that documents concerning the monopolization of the fur  
trade also indicate that this was not a significant commercial activity in  
Newfoundland. Trading monopolies had been granted to French merchants since  
the late 16th century, but the practice was eliminated in 1609 when a Royal Decree  
was issued by the French Crown allowing trade to be carried out on the coasts of  
266  
Dr. Prins tells us of a Basque fisherman named Savalet from St. Jean de Luz who, from the 1560's  
onward (each year for more than forty years), sailed his vessel to Canso harbour on the north east coast of Nova  
Scotia. See Prins, The Mi’kmaq: Resistance, note 122 above, p. 47.  
267  
Turgeon, Expert Report, pp. 37-39.  
268  
John Hewson, “The Name Presentic and Other Ancient Micmac Toponyms,” The Newfoundland  
Quarterly 77, no. 4 (1981), p. 11 [Prins Supporting Documents, vol. 2, Tab 7]; Dr. Prins, agreed with the statement  
that, “the name Placentia has its origins in the Basque village near San Sebastian called ‘Plazencia’ or Placentia... As  
opposed to a Mi’kmaq linguistic base.”  
Page: 123  
Acadia and the River of Canada up to Tadoussac. The fact that the Decree did not  
mention Newfoundland leads to the logical conclusion, submits the Province, that  
there were no fur monopolies on the Island to eliminate.269  
[278] The ban on monopolies was lifted in 1616 and the fur trade once again fell  
under the exclusive control of private companies that were fortunate and powerful  
enough to secure these valuable rights. The monopolization of the fur trade would  
have made it very difficult for the fishermen on the south coast of Newfoundland to  
continue acquiring furs from the mainland. This should have been a powerful  
incentive to build a local fur trade, or to encourage the Mi’kmaq to bring their pelts  
to Newfoundland. However, the documents include several examples of ships  
being outfitted for a clandestine trade in furs on the mainland in 1616, 1620, 1621,  
1630 and 1645, but still show no references to a fur trade in Newfoundland. In Dr.  
Turgeon’s words:  
If Micmac groups from Cap Breton Island and other parts of the maritime  
provinces had been coming to southern Newfoundland on a regular basis,  
it should have been relatively easy to convince them to bring furs for the  
purpose of trade. This was not the case. Instead, fishermen took great  
risks by launching illegal expeditions to the mainland in search of furs,  
choosing less frequented coasts and harbors to avoid being caught by  
monopoly traders.270  
[279] The Province asks why would the French deem it necessary to take such  
risks to get to the mainland if there was a fur trade, or even the potential of  
developing a fur trade, on the relatively safe, monopoly-free shores of  
Newfoundland? The most logical answer to this question, the Province suggests, is  
that the Mi’kmaq, the natives most actively trading with the French, were not  
residents or even frequent visitors to the Island at that time. According to Dr.  
Turgeon:  
If Micmac groups had been coming to this region on a regular basis, they  
would certainly have traded with the French. Since there is no evidence  
of any trade or direct contacts with Micmacs or any other Amerindian  
269  
Turgeon, Expert Report, p. 38-39.  
270  
The same, p. 39.  
Page: 124  
groups on this coast, one must conclude that they were simply not present  
there on a regular basis during this period.271  
[280] During his testimony, Dr. Turgeon reiterated his conclusions about the  
French presence on the south coast of Newfoundland, stating:  
When we examine the types of activities that they had, as I said earlier, it  
was primarily – it was almost exclusively fishing and cod fishing, with a  
bit of whaling. I have not found any evidence of trade, contacts or  
interactions with Amerindians or more specifically, with Mi’kmaq, in  
this area. I have, however, found a fairly large number of documents  
which testify to the contacts and especially trade with Amerindians in  
other parts of northeastern North America, in Cape Breton Island, south  
of Cape Breton Island, perhaps as far south along that coast as the Gulf of  
Maine, and there was also a lot of evidence of trade with Amerindians in  
the Gaspe peninsula area and especially in the St. Lawrence River valley.  
...I think one has to conclude that there just wasn’t any trade or  
interactions – because there wasn’t any trade or interactions in this area,  
it’s an indication that there were no Amerindians present in this area.  
[281] Dr. von Gernet concurs with this assessment of the historical record from  
that period. He notes:  
In contrast to Cape Breton, there are no references to Mi’kmaq repairing  
to the coast to attract passing fishing vessels with ‘great smokes to let it  
be known that they are there.’ Reports of local indigenous folk greeting  
newcomers on shore or later emerging from the forest are noticeably  
absent. Whatever the reasons, there is not a single clear record of trade  
between the Mi’kmaq and Europeans anywhere along the coastline of  
Newfoundland during the sixteenth and early seventeenth centuries. This  
fact cannot be altered by the weight of effort to account for it... In light  
of the foregoing, I believe it would necessitate a stretch of credulity to  
accept that a significant presence in Newfoundland of an indigenous  
people, known for their coastal habitation and for their strong desire to  
contact the newcomers who were pining for their peltry, would go  
completely unnoticed during the century and a half. We have a record  
and it is silent.272  
271  
The same, p. 41.  
272  
von Gernet, Expert Report, p. 119.  
Page: 125  
[282] The Defendants note that Dr. Turgeon’s report was largely limited to the  
preserved records from the ports of Bordeaux, Rouen, and La Rochelle, when the  
lost records from St. Malo, St. Jean de Luz and other Basque ports may have also  
been of assistance. The Province submits this is a common problem in historical  
research noting that, when piecing together the complex puzzle of our past,  
professional historians attempt to get beyond the unfortunate vagaries of  
preservation by interpreting the data that are available within their proper historical  
context and avoiding the temptation to make the data say more, or less, than it  
really does. While the notarial records were the primary data source in this  
research, the Province points out they were analyzed in relation to other available  
sources of information, such as travel accounts and legal depositions, and provide a  
more complete understanding of this period of Newfoundland history.  
[283] The Province submits the reliability of the information contained in the  
notarial records from the port cities was dramatically illustrated during Dr.  
Turgeon’s cross-examination:  
...we find traces of the ships being outfitted in the ports after to respond  
to this fairly major contract, and you know, we have proof that they are  
going to Canada to trade for furs. And so, I think this is proof that the  
Parisian notaries were using Terre-Neuve generally but to [refer to] the  
new found lands and not specifically to the Island of Newfoundland.  
[284] The Province says this indicates it is evident that the records kept by the  
notaries of Paris were not as precise as those of the port notaries. For example, in  
1584 Rene Duret, a clothing merchant, signed an agreement with Matthew Garnier,  
a Parisian furrier, to supply him with furs from Newfoundland, but the Bordeaux  
notarial records show that the furs for this contract were actually being acquired  
from Canada.  
[285] The Province submits it makes sense that the port notaries, who were more  
directly involved and more knowledgeable about the logistics of the trans Atlantic  
trade and fishery, would be more precise with their descriptions than the inland  
notaries and merchants of Paris. A few isolated references to furs from “Terre  
Neuve” being used on a coat cuff or a collar in Paris does not necessarily mean that  
there was a fur trade with aboriginals in Newfoundland in the late 16th and early  
17th centuries says the Province. Indeed, it argues, there is a possibility that such a  
small number of furs may have been trapped by the European fishermen who were  
wintering in Newfoundland at that time.  
Page: 126  
[286] The Province also notes that contrary to the implied existence of an  
information vacuum, we do, in fact, have reliable documentation of Basque activity  
in Newfoundland. The records from the archives of Bordeaux, Rouen, and La  
Rochelle do contain occasional references to the activities of the Basque fishermen  
in the 16th century273 and the notarial records of Basque ports such as Bayonne, St.  
Jean de Luz and Ciboure are fairly well preserved after 1640.274  
[287] In short, argues the Province, the French notarial records combined with  
other historical documents from the 16th and 17th centuries offer compelling  
evidence that there was no fur trade between the Mi’kmaq and Europeans in  
Newfoundland at that time. The reason, quite simply, in the Province’s view, is  
because the Mi’kmaq were not occupying or using the Island during that period of  
history. It follows logically, submits the Province, that the time and place of initial  
contact between the Mi’kmaq and Europeans would have occurred in those areas  
where the fur trade subsequently developed; that is, on mainland Nova Scotia and  
Cape Breton Island. The information provided by the notarial records is therefore,  
says the Province, in complete accord with that offered by the archaeological  
evidence.  
5.  
Evidence of the 17th and 18th Centuries  
(a) Introduction  
[288] The evidence shows that a symbiotic relationship between the Mi’kmaq and  
the French developed very early in the contact period. The focal point of this  
relationship was the fur trade, which Europeans used to supplement their somewhat  
unpredictable income from the fishery. The Mi’kmaq became more and more  
involved in the fur trade with the French to satisfy their increasing dependence on  
the new European tools, weapons, and supplies. The Province submits this quickly  
led to a transformation from the traditional Mi’kmaq migratory subsistence  
economy, which was primarily oriented toward marine resources on the coast, to a  
market-based economy with increased emphasis on hunting furbearing animals in  
the interior forests. In this new economic pattern the Mi’kmaq summered on the  
273  
Turgeon, Expert Report, p. 7.  
274  
The same, p. 8.  
Page: 127  
coast, not to take advantage of marine resources as in the pre-contact period, says  
the Province, but to trade with the Europeans.  
[289] The Province argues that when the historical evidence is considered in  
conjunction with the archaeological evidence from Nova Scotia and Newfoundland  
it is quite apparent that the Mi’kmaq were not in Newfoundland in the pre-contact  
or protohistoric period. The Province also made submissions on when the  
Mi’kmaq finally came to Newfoundland, where they arrived, and their motivations  
for so doing.  
(b) The Silent Sources  
[290] The early 17th century marks the transition from the protohistoric to the  
historic period and the accumulation of a substantial documentary record relating to  
the Mi’kmaq as well as their relationship with the French. The writings of  
Lescarbot, Biard, Champlain, Denys, Le Clercq and Diereville are considered to be  
the classic sources of information from this period of history. But the Province  
notes none of them provide any support for the claim that the Mi’kmaq frequented,  
or even visited, Newfoundland at that time,275 and suggests their silence supports  
the Province’s position.  
[291] Marc Lescarbot was a lawyer who lived in Port Royal in 1606-1607 and  
published the first major book describing the Mi’kmaq people. Although he does  
write that the Mi’kmaq, or Souriquois as they were then called by the French, were  
in Port Royal and in the adjacent countries extending “toward” Newfoundland, the  
Province notes this does not amount to a statement that their territory actually  
included Newfoundland.  
[292] While the description of Mi’kmaq territory as “toward”, or in other words in  
the direction of Newfoundland, might well include the geographical territory of  
Cape Breton, the Province submits the ordinary grammatical usage of “toward”  
here does not include the territory of Newfoundland. Despite his theory that the  
Mi’kmaq used Newfoundland as part of a rotational foraging pattern, Dr. Prins did  
concede that Lescarbot’s original description “...doesn’t say they are there in  
275  
von Gernet, Expert Report, pp. 103, 106, 114-116, 123-126.  
Page: 128  
Newfoundland and all of Newfoundland is Souriquois country, meaning Mi’kmaq  
country...” .  
[293] The Jesuit priest Pierre Biard arrived at Port Royal in 1611. In the following  
year he completed a report with a detailed description of the Mi’kmaq people. It is  
apparent from Biard’s report that by the first decade of the 17th century there was a  
high level of trust and intimacy between the Mi’kmaq and the French. But Dr. von  
Gernet notes that at no time  
...did this level of intimacy lead Biard to understand that these people  
travelled to Cape Ray or Placentia or any other part of Newfoundland or  
that, in fact, the Mi’kmaq considered Newfoundland as being part of their  
territory. So here we have one of our best primary sources of the period,  
but he says nothing about Newfoundland being associated with the  
Mi’kmaq.  
[294] Samuel de Champlain, the famous cartographer, explorer and Governor of  
New France, arrived in the new world in 1603 and wrote extensively about his  
experiences in eastern North America. In the 1620's, he described Newfoundland  
as being uninhabited and writes, “The savages sometimes in summer cross over  
from the mainland to see the vessels engaged in the cod-fishery.”276 Although this  
passage has been cited as evidence that Newfoundland was part of Mi’kmaq  
territory, both Charles Martijn and Dr. von Gernet point out that a reading of the  
complete passage actually suggests that the “savages” are not Mi’kmaq, but  
probably Montagnais or Inuit from Labrador277 who, unlike the Mi’kmaq, would  
have still viewed the European vessels as a bit of a novelty. Dr. von Gernet  
testified:  
...when you look at the passage, what strikes me immediately is how that  
paragraph is introduced. He says, “From the island to the mainland on  
the north is from eight to ten weeks, according to the locality.” Now,  
he’s talking here about, where is says the island, he’s talking about  
Newfoundland. And when he talks about the mainland it’s quite clear,  
from the context, that what he’s referring to is Labrador. There’s no  
question in my mind. Because when you place this paragraph in the  
context that can be the only place he’s referring to. So the only other  
276  
Henry P. Biggar, ed., The Works of Samuel de Champlain, note 72 above, vol. 5, p. 160.  
277  
For a more complete assessment of this Champlain reference see “Critique of Defence Historical  
Submission”, III.B.6(g) below.  
Page: 129  
place in that paragraph where the mainland is identified is actually  
Labrador, and not Nova Scotia or Cape Breton...  
...  
The Montagnais, of course, came over to Newfoundland from Labrador  
at various points during the historic period. And the Inuit are also  
believed to have made these crossings. So there’s no sound reasoning for  
favouring an interpretation of this passage that automatically assumes a  
Cabot Strait crossing.  
[295] Chrestian Le Clercq was a Recollet priest who lived among the Mi’kmaq in  
the Gaspé between 1675 and 1686. He wrote a detailed ethnography of the  
Mi’kmaq people which included a commentary from the Mi’kmaq people  
themselves regarding the extent of their territory. Dr. von Gernet noted that Le  
Clercq’s book, “...doesn’t hint, at all, that they considered Newfoundland as part of  
their territory.” Indeed, to the contrary, as a Mi’kmaq leader told Le Clercq “thou  
knowest that the nation of the Gaspesians [Mi’kmaq] extends from the Cape des  
Rosiers as far as Cape Breton.278 As with Lescarbot, this is another suggestion that,  
while Mi’kmaq territory may extend in the direction of Newfoundland, it falls short  
of including Newfoundland. Additionally, noted Dr. von Gernet, the writings of  
Sieur de Diereville, a surgeon at Port Royal in 1669-1700, whose 1708 publication  
provided a detailed description of the Mi’kmaq, did not in any way associate the  
Mi’kmaq with Newfoundland.279  
[296] Nicolas Denys’ book, which was published in 1672, is perhaps the most  
compelling of the silent sources. Denys was engaged in fishing, lumbering,  
trading, and ship-building throughout the Maritimes, including Cape Breton,  
between 1633 and 1669 and had extensive contact with the Mi’kmaq people in the  
region. The collateral documents section of his book indicates that his seigneurial  
rights included Cape Breton, Prince Edward Island, Newfoundland (Isle de Terre-  
neuve) and other adjacent islands.280 Given the length of time that he spent in the  
278  
Chrestien Le Clercq, New Relation of Gaspesia: With the Customs and Religion of the Gaspesian  
Indians (Toronto: The Champlain Society, 1910), pp. 191-192 [Province’s Historical Documents, vol. 9, CD 127].  
279  
Dièreville, Sieur de, Relation of the Voyage to Port Royal in Acadia or New France (1933 edition by  
John Webster, The Champlain Society, Toronto) [von Gernet Supporting Documents, vol. 12, Tab 112].  
280  
Denys, The Description, note 166 above, pp. 62-63 refers to “...Sieur Denys in so far as is or may be  
necessary, and have ordered and established, and do order and establish by these presents, signed by our own hand,  
[as] Governor and our Lieutenant-General, representing our person, in all the country, territory, coasts, and confines  
of the Great Bay of Saint Lawrens, to commence with the Cap de Canceaux as far as the Cap des Rosiers, Isles de  
Terre-neuve, Isles du Cap-Breton, de Saint-Jean, and other Islands Islands adjacent, in order to re-establish our rule  
Page: 130  
area and the extent of his business interests, it is reasonable to assume that he  
would have been aware of any trade-related activity in Newfoundland. But he  
makes no mention of his Mi’kmaq trading partners foraging, hunting or trapping on  
the Island. Even Dr. Prins, who was not familiar with the collateral documents,281  
agreed that if Denys’ seigneury included Newfoundland, “He would have had a  
vested interest to write about it.” When asked if that means that we should expect  
to see more written about Mi’kmaq hunting and fishing in Newfoundland in  
Denys’ book, Dr. Prins replied:  
Yeah. I mean, the big question, of course, did it at that time occur, and if  
he had included that seigneury, the seigneurial rights would have  
included southern Newfoundland, what would he have described. He’s  
silent on it.  
[297] Dr. von Gernet agreed, making the following comments about Denys:  
...here’s a guy who’s a fur trader. He’s in the area for decades. And his  
jurisdiction, his patent, includes Newfoundland. And he writes a whole  
book which, in great detail, talks about the Mi’kmaq, and yet, nowhere in  
this classic source does he ever allude to a Mi’kmaq association with  
Newfoundland. Now surely if the Mi’kmaq were trading with Europeans  
in his own jurisdiction he would have an interest in that and either try to  
put a stop to it, if it was within his jurisdiction, but not within his control,  
or if it was within his control, make note of it.  
[298] Some in support of Mi’kmaq claims in Newfoundland suggest that the lack  
of references to the Mi’kmaq in these early sources are the result of differences in  
the habitation patterns of the Mi’kmaq and the Europeans. The Mi’kmaq tended to  
occupy the interior forests but the Europeans remained near the coast and did not  
begin to explore the interior until much later. Thus, it is suggested that their  
cultural paths never crossed in Newfoundland. Dr. von Gernet noted there are,  
however, several significant difficulties with this “hiding in the bush theory.” He  
points out that Europeans were not disinterested in southern Newfoundland. There  
were, in fact, hundreds frequenting the region on a regular basis in the 16th and 17th  
centuries. These Europeans were not only interested in the fishery, but also in  
acquiring furs. In Nova Scotia the easiest way to obtain furs from the interior was  
through trade with the Mi’kmaq who summered on the coast. Furthermore, the  
there...”  
281  
See “Critique of Defence Historical Submission”, III.B.6 below.  
Page: 131  
Mi’kmaq did not display any fear or shyness around Europeans. In fact, they are  
described as eager traders who would go to great lengths to attract the attention of  
passing ships so they could trade their furs for European goods. In short, they  
would have no reason to hide. Yet, there are no accounts of this ever happening in  
Newfoundland. The Province asks why would a people who are so bold in Nova  
Scotia resort to hiding in Newfoundland?  
[299] Dr. Prins suggested that Newfoundland’s rugged coastline may have  
prevented the development of a fur trade between the Mi’kmaq and Europeans.282  
The Province notes, however, that the coastline of Cape Breton and Nova Scotia is  
far from smooth. Dr. von Gernet stated:  
...I also see no logical reason why this alleged jagged coastline of  
Newfoundland would serve as an impediment to the recording of trade or  
even the establishment of fur trading posts, because similar coastlines in  
Cape Breton and Nova Scotia still eventuated in the establishment of  
such posts. And, incidentally, we have records in Cape Breton and Nova  
Scotia of a fur trade with indigenous peoples long before the  
establishment of official trading posts. So the establishment of official  
trading posts is not even a prerequisite to a record... .  
...  
So, in light of all this I think it would necessitate a stretch of credulity to  
accept that there was a significant presence in Newfoundland of an  
indigenous people who were known for their coastal habitation. I mean,  
they came to the coasts, in fact, they were Maritime-adapted people. And  
even after the fur trade developed they came to the coast to trade their  
furs, so we expect them on the coast.  
[300] In short, argues the Province, if the Mi’kmaq included Newfoundland as part  
of their territory in the 17th and early 18th centuries, then surely the prominent  
writers from that period would have known and written about it. The classic  
sources by Lescarbot, Biard, Champlain, Le Clercq, Diereville, and Denys are,  
however, mute. In the Province’s view the silence speaks volumes.  
(c) Rumours of a Fur Trade in Newfoundland  
[301] The French at Plaisance compiled one of the most substantial documentary  
records of 17th and 18th century Newfoundland and yet, notes the Province, these  
records are completely silent on the usual North American practice of obtaining  
282  
Prins, Expert Report, pp. 12, 71.  
Page: 132  
furs from an indigenous population. Given the fact that they were instructed to  
explore all possibilities for securing income, including the procurement of pelts  
within French jurisdiction,283 it seems highly unlikely, submits the Province, that  
knowledge of a sustained and significant Mi’kmaq presence in southern  
Newfoundland would have eluded the French governors at Plaisance.  
[302] Dr. Prins asserted that the French established a colony at Plaisance in 1662  
to protect their fishing and fur trade interests on the south coast of  
Newfoundland.284 However, the reports of Thalour du Perron, the first governor,  
make no mention of a fur trade with the natives or anyone else.285 In 1670, Charles  
Colbert noted in his instructions to Governor La Poippe that the fort at Plaisance  
had been established to maintain the dry fishery being conducted by His Majesty’s  
subjects and suggested that profits could be increased if inhabitants of the colony  
also took part in agriculture, stock raising, and hunting for furs. He wrote:  
Besides the profit from the fishery, the inhabitants may still be helped by  
taking up agriculture, stock raising and a few furs their hunting may  
bring them. The Sr. de la Poippe is to examine all these means of  
subsistence diligently, with a view to urging the inhabitants to develop  
them, perhaps reaching a point where, in addition to their upkeep, they  
would find some field of trade that would provide them with  
commodities in greater quantity than what is necessary for mere  
subsistence. The Sr. de la Poippe must not limit himself to the  
knowledge acquired by his predecessors. He is to try to go further, and  
to learn as much as he can about the interior of the island, and to see  
whether it would not be possible to derive something from it that would  
be of value to H.M. and to the inhabitants, whether timber for  
283  
Draft instructions for the Sieur [name left blank] to be His Majesty’s Commander of the fort and  
settlement of Plaisance on the Island of Newfoundland, December 8, 1666 (France: Archives des Colonies, Serie  
C11C, Amerique Nord, vol. 1), ff. 24-26v [Province’s Historical Documents, vol. 5, CD 81].  
284  
Prins, Expert Report, p. 93. For a critique of Dr. Prins on this point see “Critique of Defence Historical  
Submission”, III.B.6 below.  
285  
See Letter from Thalour du Perron, Governor of Plaisance to the [Minister], September 18, 1662  
(France: Bibliotheque nationale de France, Departement des manuscrits, Collection Mélanges de Colbert, vol. 111),  
ff. 322-322v [Province’s Historical Documents, vol. 5, CD 72]; Letter from Thalour du Perron, governor of  
Plaisance to the [Minister], February 1663 (Bibliotheque nationale de France, departement des manuscrits,  
Collection Mélanges de Colbert, vol. 114), ff. 566-567v [Province’s Historical Documents, vol. 5, CD 75].  
Page: 133  
construction, minerals, hemp, or anything else that could become a  
subject of trade.286  
[303] Since Colbert suggests that the inhabitants themselves should begin to hunt  
furs in order to produce a profit for the colony, the Province argues it would be  
reasonable to conclude that there was no aboriginal fur trade in southern  
Newfoundland at that time.  
[304] The Court qualified Dr. Frederick Thorpe as an expert historian to give  
opinion evidence on the history of New France with emphasis on the Colony of  
Plaisance and evidence for the presence (or absence) of native peoples in  
Newfoundland during the period 1650 to 1713. After an extensive review of the  
correspondence to and from Plaisance, when asked if Plaisance was created to  
protect a French fur trade, Dr. Thorpe’s response was unequivocal:  
[Dr. Thorpe] No, there’s absolutely no mention of this. Certainly, the policy is  
outlined under Colbert, who took over the ministry of marine, when  
they’re going to put a colony into being. His mention is the fishery. The  
emphasis is on the fishery. There’s no mention of fur trade.  
[305] Dr. von Gernet submits that out of the hundreds of French documents  
generated at Plaisance there should have been at least a mention of the fur trade and  
any Mi’kmaq involvement in it; if indeed such activity was taking place.287 A fur  
trade between the French and the Mi’kmaq had long been established in mainland  
Canada, so it would not have been an unfamiliar concept to the governors of the  
new colony. Yet, the only French allusion to natives in Newfoundland during the  
1660's comes from a report by Pierre de Neufville, in which Neufville complains  
that French, Basque, and Italian fishermen are being annoyed by certain savages  
286  
Charles Colbert de Terron to La Poippe, April 7, 1670 (France: Archives nationales de France, Colonies  
B/2), ff. 62-63 [Province’s Historical Documents, vol. 5, CD 84]; similar instructions had been issued four years  
earlier, see Draft instructions for the Sieur [name left blank] to be His Majesty’s commander of the fort and  
settlement of Plaisance on the Island of Newfoundland, December 8, 1666 (France: Archives nationales de France,  
Colonies C11C/1), ff. 24-26v [Province’s Historical Documents, vol. 5, CD 81]; see also John Humphreys,  
Plaisance: Problems of Settlement at this Newfoundland Outpost of New France 1660-1690, Publications in History,  
no. 3 (Ottawa: National Museums of Canada, 1970), p. 11 [von Gernet Supporting Documents, vol. 19, Tab 186].  
287  
von Gernet, Expert Report, p. 127.  
Page: 134  
who have no knowledge of God.288 Indeed, in 1671, a Decree of the States Council  
referred to hostile sauvages in the Petit Nord:  
Whereas it has been represented to the King in Council that the  
merchants of Saint Malo and others of the Province of Brittany have until  
now been the only ones to fish for Newfoundland cod along the coast of  
the Petit Nord; and whereas disorders have occurred as a result of  
disagreement among the ships' captains or masters concerning the  
allocation of harbours where the said fishery is carried on; and whereas  
the sauvages, taking advantage of this dissension, very often killed  
sailors, and smashed ... .289  
[306] Both Dr. von Gernet and Dr. Prins agreed that, given the location, these  
“sauvages” were most likely Inuit, not Mi’kmaq.  
[307] The Province notes that, due to an absence of evidence in the French record,  
the Defendants focus a great deal of attention on several English documents of the  
late 1600's. The first of these is the 1670 account by John Mathews, who testified  
that in 1662 he had been sent by English deputy governors to St. Mary’s bay with a  
warrant to bring a certain Mr. Russell “& the masters of the Indians (who came to  
Kill Beavers & other beasts for ffurrs)” back to Ferryland to answer charges that he  
was “makeing an attempt” upon the Island without proper authority from His  
Majesty of Great Britain. Mathews could not execute the warrant because he was  
intercepted by a French captain who claimed he was infringing on French  
jurisdiction.290 The fact that this testimony was taken eight years after the alleged  
incident raises serious questions about its reliaibility says the Province.  
Furthermore, Mathews never did confirm the presence of savages, so it remains  
nothing more than an unconfirmed rumour in the Province’s view. Dr. von Gernet,  
in reference to this incident, noted:  
288  
Prins, Expert Report, p. 95.  
289  
Decree of the Council of state, applying to all of the King’s subjects, the Regulation made by the  
wholesale dealers of Brittany pertaining to the fishery of the Petit Nord, and the decree issued in consequence in the  
month of March 1640 by the Parlement of Rennes, April 28 1670 [sic], April 28, 1671 (MG2/A1), pp. 37-39  
[Province’s Historical Documents, vol. 5, CD 87].  
290  
Letter from John Matthews entitled “concerning the French in Newfoundland,” January 27, 1670  
(London: British Museum, Egerton MSS 2395), f. 471 [Province’s Historical Documents, vol. 5, CD 83].  
Page: 135  
...there were a number of rumours during this period floating around  
among the English, which later turned out to be false... So the long and  
the short of it is that nobody really could investigate this rumour and it  
stayed as a rumour. Nothing was done. The man was not arrested. The  
whole matter was intercepted by the French and we hear no more of it.  
So I don’t think that we can reach any confident conclusions about  
Mi’kmaq trading with Europeans in St. Mary’s based on this particular  
source.  
[308] In 1675 rumours continued to circulate in England that the French built the  
fort at Plaisance to defend themselves “from the Indians who come off from the  
main and molest them in their beaver trade, for which trade only they inhabit  
there.”291 Based upon stories told by the Mi’kmaq to Father Biard in the early 17th  
century regarding Mi’kmaq involvement in the murder of Basque and French  
Bretons, Dr. Prins suggests that such acts of violence may have indeed been the  
impetus for the French building the fort at Plaisance.292 The Province notes it has  
also been suggested, however, that the English rumours were “very far from the  
truth” and were most likely based upon the “testimony of West Country fishermen,  
who would naturally understate the French interest in the fishery in order to  
counter demands for fortification and settlement.”293 Indeed, such rumours were  
put to rest, when in the same year Sir John Berry, captain of the H.M.S. Bristol,  
reported that the fortifications of Plaisance were for securing their fishing trade,  
and not "for the beaver trade as pretended, for no Indians ever come to those  
parts."294 According to Dr. Thorpe, Berry’s report “tallies with everything I’ve  
seen in the French material”.  
[309] Another English report cited by Dr. Prins as evidence for a Mi’kmaq-French  
trade in Newfoundland comes from John Thomas, a chaplain on the ship H.M.S  
Assistance, which was anchored off Bay Bulls in 1680. Thomas wrote:  
291  
Order in Council: Report of the Committee for Foreign Plantations, May 5, 1675, in Calendar of State  
Papers, Colonial Series, America and West Indies, vol. IX, 1675-1676, Doc. No. 550, p. 227 [Province’s Historical  
Documents, vol. 6, CD 92]; see also Prins, Expert Report, p. 95.  
292  
Prins, Expert Report, p. 95.  
293  
Humphreys, Plaisance, p. 23, note 69 [von Gernet Supporting Documents, vol. 19, Tab 186].  
294  
Observations in the year 1675 by me (Sir John Berry), then commanding H.M.S. Bristol, in relation to  
the trade and inhabitants of Newfoundland, in Calendar of State Papers, Colonial Series, America and West Indies,  
vol. IX, 1675-1676, Doc. No. 769, p. 329 [Province’s Historical Documents, vol. 6, CD 90].  
Page: 136  
The Ancient Nations who formerly in a wilde maner possessed this Land,  
are mear Salvadges, tawny and Naked; till that some are now clothed,  
since they have some doings with New England men. They are verie  
dextrous att bows and Arrows (and have Guns now got amounst them  
alsoe) with which they most comonly fight and kill their food.  
Multitudes of them doe yet live and keep in the Northern partes. They  
destroy the wilde dear (& Bears which are alsoe by the English said to be  
good meat here) likewise they kill foxes and otters and the provident  
Beaver, feding upon their flesh, which is most if not all the food these  
Salvadges have; and preserving the Fur they sell a great quantitie of it.  
They bear a deadly few’d and hatred to the English, but are said to have a  
Commerce with the french in this land. The English alsoe take many of  
these wilde beasts and make great profitts of them, especially the beaver,  
whereof here is found a greate many, whos skill in Building his hous and  
care in providing for winter with his great industrie otherwaies is well  
worthy anie mans observation. Here’s plentie of all maner of Fowl,  
which are shot, especially in the winter, by the planters every where.295  
(Emphasis added.)  
[310] Dr. Prins suggested that Thomas was describing two different ethnic groups  
in Newfoundland: the Beothuk in the north, and the Mi’kmaq to the south. The  
Province submits there are several notable shortcomings to Dr. Prins’ interpretation  
of this report. First, the strange allusion to “New England men” raises the  
possibility that Thomas conflated hearsay from disparate sources that were not  
necessarily limited to Newfoundland. Furthermore, the actual account only refers  
to Indians living in the northern parts; it does not mention Indians in the south.  
Given that the H.M.S. Assistance travelled no further north than Bay de Verde and  
no further south than Renews on the Avalon Peninsula, it is highly probable that  
Thomas never actually met any Beothuk people, let alone Mi’kmaq or Innu, during  
his visit to Newfoundland. Dr. von Gernet concluded:  
...I really don’t think we can make much more of that record. And in any  
event, Prins’s interpretation of the Thomas account is inconsistent with  
other English reports, and of course, as well with the French record at  
Plaissance.296  
295  
Letter to Sir Richard ... from Bay Bulls, September 15, 1680 (Codrington Library, All Souls College,  
Oxford, Wynne Collection, MS 239), ff. 229-230v [Defendants Historical Documents, vol. 12, Tab 6]; see also  
Prins, Expert Report, pp. 92-93.  
296  
See also Peter Pope, “A True and Faithful Account,” Newfoundland Studies 12, no. 1 (1996), p. 34 [von  
Gernet Supporting Documents, vol. 36, Tab 328].  
Page: 137  
[311] The French conducted a census of permanent residents at the port of  
Plaisance in 1671 and 1673, but no natives were recorded.297 Dr. Thorpe testified  
that in 1687 an expanded census covering the entire French colony in  
Newfoundland was taken.  
[312] The Province notes the results of the 1687 census are also inconsistent with  
the suggestion of a fur trade between the Mi’kmaq and the French on the south  
coast of Newfoundland. This census includes French inhabitants at Plaisance,  
Point Verde, Petit Plaisance, Saint-Pierre, Fortune and Grand Banque (Grand  
Bank), Harbour Breton, Cap Negre, and L’Hermitage (Hermitage).298  
Significantly, says the Province, those reported in the census were not seasonal  
fishermen (of which there were thousands) but those living in the communities year  
round.299  
[313] Among those residing at Plaisance are three people described as a “sauvage”,  
“sauvagesse” and “garçon de sauvage”. Although their ethnicity is not clearly  
stated, there is a possibility that they may have been a Mi’kmaq family. The reason  
for their presence in Plaisance at that time remains a mystery. The rotational  
foraging model advocated by Dr. Prins does not adequately explain their presence  
because the Acadia census, taken around the same time, notes that resources were  
plentiful on Cape Breton and that trade with the natives was good.300 However, Dr.  
von Gernet commented that it was not uncommon for aboriginals to reside in or  
297  
Frederick J. Thorpe, Plaisance and the Micmacs (January, 2001), p. 67 [hereinafter cited as Thorpe,  
Expert Report].  
298  
Fernand D. Thibaudeau, “Recensement de Terre-Neuve, 1687-1704 (suite),” Mémoires de la Société  
Généalogique Canadienne-Française XIII, no. 10 (Octobre 1962), p. 205 [Province’s Historical Documents, vol. 77,  
CD 959]; von Gernet, Expert Report, p. 134 states that “during this period no less than 22 percent of the entire  
French population in the region was actually established not far from Bay d’Espoir at such places as Harbour Breton,  
Cape Negre (Seal Cove and Pass Island) and Hermitage.” See John Mannion and Gordon Handcock, “The 17th  
Century Fishery,” in Historical Atlas of Canada, vol. 1, ed. R. Cole Harris (Toronto: University of Toronto, 1987),  
plate 23, for the location of these communities.  
299  
Thorpe, Transcript of Evidence (April 11, 2001), p. 100. For example, Thibaudeau, “Recensement,” p.  
205 [Province’s Historical Documents, vol. 77, CD 959] indicates that there were “Eglises/hopitaux” at most of  
these places.  
300  
Prins, Expert Report, p. 91 includes a quote that describes Cape Breton Island in the late 1680's as a  
place that “abounds in Fish, Seals, etc.” and that “trading with the natives is fairly good.”  
Page: 138  
near the places occupied by their European allies, so it would not be surprising to  
find them at Plaisance. But he warns:  
...it would be a mistake to infer, from this limited presence, the existence  
of a Mi’kmaq band operating independently of the French. I think that  
would stretch beyond what the evidence allows.301  
[314] The Province submits it is difficult to imagine that a sustained Mi’kmaq  
presence on the south coast of Newfoundland, more significant than one family,  
would have eluded the French governor at Plaisance. Since the census reports for  
other years do not mention this family, their presence in 1687 appears to have been  
an isolated incident. Dr. Thorpe noted that in the previous year the Governor of  
Plaisance personally visited communities in the vicinity of Bay d’Espoir, Cap  
Negre, L’Hermitage, Havre Breton, Grand Bank, Fortune and St. Pierre in response  
to a request by the French inhabitants there for the services of a priest. He made no  
report of native peoples.302 Eventually, in 1689, Bishop Saint Vallier made  
Plaisance a parish and the inhabitants came under the spiritual care of the Recollets.  
The Province notes that the Recollects were quite active in missionary work with  
native people in Canada and submits their failure to establish “Indian missions” in  
Newfoundland indicates there were no native people in Newfoundland associated  
with the French.  
[315] A court-martial held at Plaisance on September 17, 1695 provides the first  
confirmation of a Mi’kmaq family dwelling in proximity to the French at Plaisance.  
The proceedings state:  
In the month of July 1695 Henry Olivary of Marseille, 20 years of age,  
and Adrien Acard of Buly near Dieppe, 26 years of age, sought refuge at  
the hut of a sauvagesse Micmac living with her family near Plaisance.  
They lived there for 40 days. The woman’s eldest son, called Daniel  
Turbis, went to get provisions and, during that time another son, Claude  
Turbis, went in a shallop with his mother and 4 children, his sister  
301  
von Gernet, Transcript of Evidence (June 13, 2001), p. 74.  
302  
See also Official report by Antoine Parat of the installation, at the request of the settlers of Cap Naigre,  
Lhermitage and Havre Bertrand, of a priest whose upkeep they shall be required to pay, July 7, 1686 (France:  
Archives nationales de France, Colonies F3 54), ff. 273-274 [Province’s Historical Documents, vol. 8, CD 107]; and  
Official report by Antoine Parat of the installation, at the request of the settlers of Grand Banc, Fortune, St. Pierre, of  
a priest whose upkeep they shall be required to pay, July 9, 1686 (France: Archives nationales de France, Colonies  
F3 54), ff. 275-276 [Province’s Historical Documents, vol. 8, CD 108].  
Page: 139  
Magdelaine Turbis and her 3 young children, and the two Frenchmen, to  
try to take some game on a small island. Once there, Claude went ashore.  
As soon as he was out of sight, the Frenchmen seized the pistols and the  
axes and massacred the old mother and the four children, along with two  
of those of the said daughter, and struck her with an axe, giving her an  
open wound in the back. They then threw her into the sea with her  
younger child in her arms. Still holding on to the child, she had the  
strength to escape by swimming. This unfortunate woman and her  
brothers are the accusers and witnesses against the two scoundrels, who  
have confessed.303  
[316] While this is indisputable evidence that an extended Mi’kmaq family of the  
Christian faith was living near Plaisance in the 1690's, there is no indication, says  
the Province, that the Turbis family belonged to a larger Mi’kmaq band that was  
extracting resources in that area of Newfoundland. If this family had been part of a  
more substantial Mi’kmaq population, argues the Province, their presence would  
have been noted by French officials who had a keen interest, not only in the fur  
trade, but also in employing Mi’kmaq to serve in their military campaigns.304 The  
Turbis family did not appear in either the 1693 or the 1694 census.305  
[317] Given that there was a permanent French population and thousands of  
seasonal fishermen residing in the area of Plaisance and Bay d’Espoir, the Province  
argues there can be little doubt that if Mi’kmaq were frequenting Newfoundland  
shores their presence would not have gone unreported. From the testimony of Dr.  
Thorpe:  
[Burrage, Q.C.] To what extent would the governor in Plaisance be expected ... to have  
knowledge of what was going on outside of Plaisance itself?  
[Dr. Thorpe]  
Yes, well, he was responsible for the area, including the ports  
where his inhabitants, habitants they were called, because that  
term is used differently in different colonies, depending on what  
the main activity is. In this case, it’s fishing, and so in various  
outports, as we learned in the census, there were inhabitants and  
he was responsible for them.  
303  
Sentence of court-martial, Plaisance, September 17, 1695 (France: Archives des Colonies, Serie F3,  
Collection Moreau de Saint-Méry, vol. 54), f. 352 [Province’s Historical Documents, vol. 11, CD 151].  
304  
von Gernet, Expert Report, p. 140.  
305  
Thorpe, Expert Report, p. 44.  
Page: 140  
[Burrage, Q.C.] Would this include these communities we looked at outside or to the west  
of the Burin Peninsula?  
[Dr. Thorpe]  
Yes, very definitely.  
(d) The Struggle for North America  
[318] During the late 17th and early 18th centuries a series of wars between England and  
France were fought to determine which nation would ultimately control North America.  
Due to the active participation of aboriginal peoples in these conflicts, they came to be  
known as the French and Indian Wars.306 After an attack by the English in 1690, the  
French decided to fortify Plaisance to provide protection to the French settlers there and  
in other places along the coast. In 1691, the King of France appointed Jacques-Francois  
de Mombeton de Brouillan, as “Governor of the Island of Newfoundland, of the said fort  
of Plaisance and of other places dependant thereon.” De Brouillan, much like his  
predecessors, was instructed to:  
...send censuses of each district, separated in columns, of the number of  
families, men, women, boys, children, domestic animals, weapons and  
houses. He shall continue from one year to another to send similar  
censuses, as well as returns on the ships that fish near all the ports within  
his jurisdiction, even from what he can learn from those who go to the  
Petit Nord, and from what is done and has happened with respect to the  
trade and fishery of the King's subjects and between them. Those who  
were representing the king before at Plaisance failed to inform H.M. of  
the state of the interior of the island of Newfoundland. H.M. wishes him  
to become informed on the subject, and to reveal what knowledge he is  
able to have of the peoples who inhabit it, their manners, customs and  
commerce, and what methods may be adopted to engage in trade with  
them, in order to reap some advantage from it for the colony and for the  
protection of the sauvages.307  
[319] The French knew from their experience in Acadia and Canada that amicable  
contact with natives would lead to the establishment of a formal trading partnership,  
306  
von Gernet, Expert Report, p. 136.  
307  
Instructions for the Sr. de Brouillan, Governor of the Island of Newfoundland of the fort of Plaisance  
and of the adjacent islands, February 17, 1691 (France: Archives des Colonies, Serie B, vol. 16), ff. 23-24  
[Province’s Historical Documents, vol. 10, CD 130].  
Page: 141  
which could eventually develop into a formidable military alliance. The fact that officials  
at Plaisance were still looking for local “sauvages” to trade with in 1691 leads to the  
conclusion that there were no allies of the French with whom to barter in southern  
Newfoundland at that time, argues the Province.  
[320] In 1694, de Brouillan, the Governor of Plaisance, submitted a detailed  
memorandum to his superiors in France recommending an attack against English  
settlements on the Island’s east coast. De Brouillan’s proposal called for the import of  
“150 sauvages from Acadia” and 100 Canadian militia. He wrote, “The sauvages are to  
be picked up at Baie des Espagnals (Sydney) where they will undoubtedly be.” The  
Province submits this suggests there were no local natives who might be of assistance to  
the French.308  
[321] In a letter dated October 25, 1694, de Brouillan informed the Minister of various  
proposals to fortify the vulnerable post at St. Pierre and hinted that the success of that  
facility could be enhanced by establishing a fur trade with indigenous inhabitants. The  
Province suggests that if there was ever an opportunity for the French to identify a band  
of Mi’kmaq foragers in southeastern Newfoundland this was it. Yet, this is all de  
Brouillan had to say:  
Much advantage may still be derived from that settlement since the  
discovery of sauvages living in the south of the island of Newfoundland.  
Those people are so unwarlike that the presence of a few Europeans puts  
them to flight, and they are given over only to hunting. All of which  
leads one to estimate from the nature of their country that more beaver  
than furs of lesser importance could be taken there.309  
[322] Scholars are in general agreement that the natives referred to in this report were  
most likely Beothuk. The Mi’kmaq, who were longstanding allies and clients of the  
French, would have reacted quite differently to Europeans.310  
308  
Thorpe, Transcript of Evidence (April 9, 2001), at pp. 115-119; see also de Brouillan to the Minister,  
1694 (France: Archives nationales de France, Colonies C11/C/2), ff. 35v-36 [Province’s Historical Documents, vol.  
11, CD 143].  
309  
Letter from Brouillan to the Minister, October 25, 1694 (France: Archives nationales de France,  
Colonies C11C/2), f. 19 [Province’s Historical Documents, vol. 11, CD 149]. Dr. Thorpe is of the opinion that the  
French, who were sent to learn more about the interior, would have made this discovery.  
310  
See, von Gernet, Expert Report, p. 137; and Prins, Expert Report, p. 100. The Province submits Dr.  
Prins’ conclusions here clash with his statement in Prins, Expert Report, p. 155 that “it makes sense to doubt  
identifications of natives on Newfoundland’s south or southwest coasts as being Beothuk” whenever there is no  
mention of red ochre.  
Page: 142  
[323] In 1694 la Boulaye, a civil officer of the Marine from Bayonne, carried out an  
inspection of Plaisance. In his report, la Boulaye proposed, for the protection of the  
French settlements, to lay waste to the English by importing Canadians from Quebec  
“who know how to make war in the snow, the way the sauvages do.”311 The Province  
notes this also suggests that there were no local native allies of the French in  
Newfoundland.  
[324] As the wars between Britain and France continued in Europe, the French continued  
with their struggle against the English in North America. With the aid of native warriors,  
Pierre le Moyne d’Iberville carried out his military campaigns in Acadia and  
Newfoundland in 1696 and 1697. Dr. Thorpe explained how over three hundred Abenaki,  
Malecite, Penobscot, and Mi’kmaq warriors assisted d’Iberville in the crushing attack on  
Pemaquid. After the English surrendered to d’Iberville in 1696, the French then made  
plans to go to Newfoundland. However, reports indicate that eighty “sauvages” from  
their force were dropped off in Cape Breton and did not make the journey to  
Newfoundland.312 Indeed, only three natives are said to have continued with the French  
force in their Newfoundland campaign.313  
[325] Father Jean Baudoin accompanied d’Iberville on his campaigns and had close  
connections with the Mi’kmaq. It is significant that Baudoin’s diary, which chronicles his  
adventures in detail, says nothing about an indigenous presence on the Island of  
Newfoundland.314 In fact, Baudoin’s writings indicate that the English were active  
311  
Memoir by Plomier de la Boulaye, Louis-Hyacinthe, January 30, 1695 (France: Archives nationales de  
France, Centre d’archives d’Outremer, Aix-en-Provence: Dépôt des Fortifications des Colonies, Terre Neuve, Carton  
2, no. 104), p. 448 [Province’s Historical Documents, vol. 11, CD 150].  
312  
Captain Goutin to the Minister, September 23, 1696 (France: Archives nationales de France, Colonies  
C11C/2), f. 117v [Province’s Historical Documents, vol. 11, CD 156]; Iberville to the Minister, September 24,  
1696 (France: Archives nationales de France, Colonies C11A/14), f. 243 [Province’s Historical Documents, vol. 12,  
CD 157]; Journal of Monsieur Baudoin, Missionary, June 26, 1696 to May 27, 1697 (France: Archives nationales de  
France, Colonies C11D/3), f. 28v [Province’s Historical Documents, vol. 12, CD 158].  
313  
See also von Gernet, Expert Report, p. 141, and Prins, Expert Report, pp. 101-102.  
314  
In Dr. Thorpe’s opinion neither d’Iberville nor de Brouillan recruited native peoples in Newfoundland.  
Page: 143  
hunters and trappers who were much more familiar with the interior of the Avalon than  
the French and their native allies:  
[The English] had a perfect knowledge of the interior of that whole  
island, even the parts belonging to the French, for they [i.e., captured  
Englishmen] guided us everywhere when we had to go through the  
woods or along the shores, where they had beaten trails, for they went  
almost from one settlement to another on horseback throughout all of  
their part of the island, be it that we might go into the depths of the  
woods of this island, where they were to be found every autumn hunting  
at the gates of Plaisance. It was ten leagues from there, in the baie de  
Plaisance itself that the English having come to hunt as it was their  
custom, learned from Frenchmen whom they obliged to give them news  
from Plaisance, that there were 150 Canadians with sauvages who were  
going to make war against them that winter; that alerted those  
Englishmen and led them to withdraw to their own homes. We captured  
those Englishmen, who told us all that. There were more than two  
hundred English hunters who spent every winter in the woods killing  
beaver, otter, deer and bear: in a word, all the wild animals of this  
island.315  
[326] Indeed, it was English freebooters who travelled overland to capture Plaisance,  
much to the surprise and humiliation of the governor.  
[327] When the War of the Spanish Succession (Queen Anne’s War) broke out in 1702,  
hundreds of Mi’kmaq warriors assisted the French in their attacks against the English  
along the coast of Maine.316 The Province questions Dr. Prins’ assertion that there were  
Canadian Indians in Newfoundland who were anxious to take part in attacks against the  
English,317 noting that historical documents do not indicate that there was a local force of  
aboriginals to assist the French in Newfoundland. The Province submits this is the  
reason why Durand la Garenne requested his superiors to send him “15 or 20 sauvages  
from Acadia to apprehend deserters and, along with a few Canadians who are in this  
315  
Journal of Monsieur Baudoin, Missionary, June 26, 1696 to May 27, 1697 (France: Archives nationales  
de France, Colonies C11D/3), ff. 38-38v [Province’s Historical Documents, vol. 12, CD 158]. See also Philip E.L.  
Smith, “Transhumant Europeans Overseas: The Newfoundland Case,” Current Anthropology 28 (1987), pp. 241-250  
[von Gernet Supporting Documents, vol. 45, Tab 380] which describes the unusual role reversal between the English  
and natives on this Island as an early form of classic Newfoundland transhumance.  
316  
von Gernet, Expert Report, p. 143; see also Prins, The Mi'kmaq: Resistance, note 122 above, p. 12.  
317  
The Province notes here Dr. Prins’ use of William Newbigging’s misleading translation in Prins, Expert  
Report, p. 108, instead of the original March 22, 1703 document, set out at note 393 below.  
Page: 144  
place, to detect enemies in hiding.”318 The following year, in 1704, Daniel Auger de  
Subercase asked the Governor of Quebec to send “un detachement de troupes  
Canadiennes et de Sauvages pour aller enlever les colonies que les Anglois tiennent à  
l’isle de Terre Neuve.”319 In October of 1705 Subercase reported the arrival of Mi’kmaq  
in Newfoundland:  
I shall inform you, my lord, that 20 or 25 families of the sauvages  
Miquemacs from Cape Breton have crossed over to this island. I have  
sent them twice to the English coasts, where they have worked wonders.  
It is they who killed the 18 men on the ships of the Queen of England,  
that I have already told you about. They have spread unbelievable terror  
into enemy ranks. They intend to settle on this island, which most  
certainly will reap great advantages from their doing so. The rest of their  
nation is to come in the spring, and I shall do everything within my  
power to hold them to that. I hope, in the interest of the King’s service  
and the well-being of this colony (where they will fit in as well as they  
would at Port Royal), you will be pleased to send them, here, the presents  
they have been given where they have been living. They are abandoning  
that land in order to give the moose, and other animals on which they  
have been subsisting, time to regenerate. I even hope that, out of charity,  
you will give the order for us to be sent the funds intended for their  
missionaries, which they are vigorously pressing me to request.320  
[328] While allowing the wildlife population in Cape Breton to regenerate, the Mi’kmaq  
families who remained in Newfoundland during this period apparently did so under  
invitation from the French, who promised them presents and missionary funding in  
exchange for their military service. The significance of their arrival at this time is noted  
by Dr. von Gernet:  
...their arrival in 1705, which is a full two centuries after first contact  
with Europeans, marks the first time that we have indisputable evidence  
318  
Durand la Garenne to the Minister of Marine, March 22, 1703 (France: Archives nationales de France,  
Colonies C11C/4), f. 20 [Province’s Historical Documents, vol. 15, CD 190] refers to Canadians, not “Canadian  
Savages”, and, as noted by Dr. Thorpe, Canadians in this context are Francophone militiamen.  
319  
[Chaussegros Lery or Gedon de Catalogne], “1704,” in Collection de Manuscrits Contenant Lettres,  
Memoires, et Autres Documents Historiques Relatifs à la Nouvelle-France ... , vol. 1 (Quebec: A. Cotê, 1883), p.  
604 [von Gernet Supporting Documents, vol. 22, Tab 207]. See also Prins, Expert Report, p. 109.  
320  
Letter from Subercase to Minister, October 22, 1705 (France: Archives nationales de France, Colonies  
C11C/4), ff. 219 [Province’s Historical Documents, vol. 16, CD 200].  
Page: 145  
in Newfoundland for a Mi’kmaq population that’s of a size that could  
have comprised a band.  
[329] While Subercase was quite pleased with the Mi’kmaq soldiers, Costebelle, his  
second in command and eventual successor as governor, was less impressed. He  
considered them to be undisciplined and cruel soldiers whose presence in Plaisance was  
nothing more than a drain on the colony’s limited resources. Costebelle clearly stated in  
letters to the Minister that he wanted the “sauvages brought from Acadia at the behest of  
Subercase”321 to return to their homeland. In July of 1707 he wrote:  
About 20 families of sauvages from Cape Breton wintered at the bottom  
of Fortune Bay. They laid waste several English settlements in the north  
of the island. To my taste they are awkward neighbours, quite  
undisciplined, waging a cruel kind of war quite unsuited to an island  
inhabited only by Europeans. The said sauvages, who are now only 6  
leagues from here, are expected almost momentarily. Their useless  
assistance consumes a great deal of our food that we could very well get  
along without. I shall send them back to their country, where M. de  
Subercase can make better use of them than we can; we are strong  
enough to defend our own ground.322  
[330] By 1709 Costebelle received the full approval of the Minister and His Majesty the  
King to carry out his decision to return the Mi’kmaq to Cape Breton. The Minister wrote:  
I have noted with deep concern what you have told me about the cruelties  
the sauvages Mikmats who were brought to Newfoundland have inflicted  
there on the English and the unfortunate consequences that have ensued,  
for without them the English would never have had knowledge of the  
bayes de Fortune and des Experts, nor of the Grand Banc off St. Pierre.  
H.M. has approved the course of action you have taken with these  
sauvages in obliging them to return to Cape Breton.323  
[331] Without the support of Costebelle, the Mi’kmaq arrivals did not receive the  
presents or the missionary funding that were originally promised. This, combined with  
321  
Letter from Costebelle to Minister, 28 October 1708 (France: Archives nationales de France, Colonies  
C11C/6), ff. 54-55 [Province’s Historical Documents, vol. 20, CD 226].  
322  
Letter from Costebelle to the Minister, July 10, 1707 (France: Archives nationales de France, Colonies  
C11C/5), ff. 96 [Province’s Historical Documents, vol. 19, CD 216].  
323  
Letter from the Minister to Costebelle, August 10, 1709 (France: Archives nationales de France,  
Colonies B/30), ff. 310-311 [Province’s Historical Documents, vol. 21, CD 235].  
Page: 146  
the fact that the French were now offering incentives for the Mi’kmaq to settle in  
southeastern Nova Scotia, prompted many to counter-migrate to the mainland.324 When  
asked to comment on the events of this period, Dr. von Gernet noted: “I’ve not been able  
to find good evidence that they lingered much beyond 1708.”325 The Province submits  
their departure appears to have essentially put an end to this brief first instance of a  
Mi’kmaq presence in Newfoundland.  
[332] In the following exchange, Dr. Thorpe summarized his opinion on the utility of the  
Plaisance records in illuminating the question of a Mi’kmaq presence in Newfoundland  
during this time:  
[Burrage, Q.C.] ... Had the Mi’kmaq been hunting in southern Newfoundland or fishing  
in southern Newfoundland prior to this date, prior to this 1705 date?  
[Dr. Thorpe]  
No evidence of that.  
[Burrage, Q.C.] Okay. Would you expect to find evidence of it in the records of  
Plaisance?  
[Dr. Thorpe]  
If there had been, I would, yes. It would have been something  
quite new because all of the records before that suggest that – in  
fact, they didn’t even know there were any natives at all for a  
considerable time.  
[Burrage, Q.C.] Would the Governor of Plaisance have knowledge of what was going on  
on the other side of the Burin Peninsula to the west?  
[Dr. Thorpe]  
Yes, yes, because there were settlements along there of boat  
fishermen, resident fishermen, and we know that there was a  
request for clergy because they had no priest at all and they  
wanted clergy, and so agreements were undertaken to provide  
those, and to specify the number of times each priest would visit  
each community and so forth, and the Governor had actually  
gone there to these places to hear the requests.  
[Burrage, Q.C.] Would the presence of native peoples, Mi’kmaq, in particular, have been  
noteworthy? Is it something that you would expect the Governor to  
note?  
324  
Prins, Expert Report, p. 116, states that “the French were actively drawing them away from southern  
Newfoundland.”  
325  
von Gernet, Transcript of Evidence (June 13, 2001), p. 87.  
Page: 147  
[Dr. Thorpe]  
Oh, yes, and the Governor would certainly have heard of it, and  
even if he didn’t see any personally, it would certainly be  
reported to him, either formally or informally.  
(e)  
The French Lose Plaisance  
[333] The signing of the Treaty of Utrecht in 1713 brought an end to Queen Anne’s War  
and shifted the balance of power in North America. Under the terms of this treaty, Britain  
acquired peninsular Nova Scotia and Newfoundland, along with its adjacent islands, while  
the French were relegated to Cape Breton (Ile Royale), Prince Edward Island (Ile St.-  
Jean) and the Magdalens. The French were required to relinquish their holdings in  
Newfoundland within seven months:  
The Island called Newfoundland, with the adjacent Islands, shall from  
this time forward belong of Right wholly to Britain, and to that end the  
Town and Fortress of Placentia, and whatever other Places in the said  
Island are in possession of the French, shall be yielded and given up,  
within seven Months from the Exchange of the Ratification of this  
Treaty... Moreover, it shall not be lawful for the Subjects of France to  
fortify any Place in the said Island of Newfoundland, or to erect any  
Buildings there, besides Stages made of Boards, and Huts necessary and  
usual for drying of Fish; or to resort to the said Island, beyond the time  
necessary for fishing and drying of Fish. But it shall be allowed to the  
Subjects of France to catch Fish, and to dry them on Land, in that Part  
only, and in no other besides that, of the said Island of Newfoundland,  
which stretches from the Place called Cape Bonavista to the Northern  
Point of the said Island; and from thence running down by the Western-  
side, reaches as far as the Place called Point Riche. But the Island called  
Cape-Breton, as also all others, both in the Mouth of the River of St.  
Lawrence, and in the Gulph of the same Name, shall hereafter belong of  
Right to the French... .326  
326  
Fred L. Israel, ed., “Treaty of Utrecht,” in Major Peace Treaties of Modern History, 1648-1967, vol. 1  
(New York: Chelsea House in association with McGraw-Hill, 1967), pp. 209-210 [von Gernet Supporting  
Documents, vol. 19, Tab 190]. According to the treaty, the “French shore” extended along the northern coast from  
Cape Bonavista to Point Riche, near Port au Choix on the west coast of the Northern Peninsula. In reality, the  
French disputed or misunderstood the boundaries and frequented various locations in southwestern  
Newfoundland. It was only in 1783 that the “French shore” officially shifted to the coast between Cape St John in  
north-central Newfoundland and Cape Ray in the extreme southwest.  
Page: 148  
[334] On September 2, 1713, de Brouillan formally took possession of Cape Breton and  
made plans to resettle the inhabitants of Plaisance, St. Pierre and other places ceded to  
Britain.327  
[335] While the historical record suggests that the French moved to Cape Breton along  
with their Mi’kmaq allies, rumours abounded that they were still conducting a fishery in  
Newfoundland. Britain quickly took measures to establish their authority in the region.  
Any French fishermen in Newfoundland who refused to move to Cape Breton were  
required to take an oath of allegiance to the British Crown. Also, in order to address the  
rumour of a persistent French presence and to better understand the resource potential of  
their new possession, the Board of Trade appointed William Taverner to survey “such  
parts of the Coasts of Newfoundland & the Islands adjacent, as the ffrench have usually  
fished upon, and wherewith Our Subjects are at present unacquainted ...” .328  
[336] In 1714 Taverner visited St. Pierre and Miquelon, and then spent about a week in  
Hermitage Bay before heading back to Grand Bank. From there he surveyed the fishing  
stations at Grand Bank, Fortune, and vicinity; then returned for a month at St. Pierre  
before finally heading back to Placentia in September. In October 1714, Taverner  
resumed his activities and set out from Placentia in a shallop, following a counter-  
clockwise course around Placentia Bay. He reports that:  
...in the Mo of Septemr last came from Cape Britton several of the French  
Inhabitants servants over to Cape Ray and the Coast adjacent to kill Furrs  
and hunt and I was Inform that some of them came as far to the Eastward  
as the baye de Espere.329  
[337] Later in this same report he confides that the French are:  
... very Industrious in Spreading Reports that the Indians of Cape Britton  
are comeing to St. Peters and the Harbrs Adjacent to Plunder the French  
Inhabitants that remain there, their dessign in so Doeing is to hinder the  
Inhabitants of those Places from goeing to Cape Ray to Catch Furr, and  
327  
St. Ovide de Brouillan, Prise de possession de l'Isle du Cap Breton, September 2, 1713 (France:  
Archives nationales des France, Colonies C11B/1), ff. 11 [Province’s Historical Documents, vol. 24, CD 267].  
328  
Her Majesty’s Commission appointing Captain Taverner of Newfoundland and parts adjacent, July 21,  
1713 (CO 194/5), f. 90 [Province’s Historical Documents, vol. 24, CD 264]. See also Board of Trade to William  
Taverner, July 21, 1713 (CO 194/5), ff. 101-102v [Province’s Historical Documents, vol. 24, CD 265].  
329  
Copy of reports entitled “Abstract of Capt. Taverner’s Remarks on the South Part of NF” and “Some  
Remarks on the present state of the South Part of Newfoundland ... ,” February 5, 1715/16 (CO194/6), f. 50  
[Province’s Historical Documents, vol. 24, CD 280].  
Page: 149  
the English Inhabitants to settle in those Harbours, their dessign hitherto  
have had [ye] desired effect... .330  
[338] Taverner did not get as far west during his second survey of the coast as he had in  
his first and again it appears that much of his information came from third party  
informants. He stated that he was:  
... Credibly Informed, that 8 saile of ffrench Biscayers, fished last Year  
about the Coast of Cape Ray. That in the Mo of Septembr last came from  
Cape Britton a great many french ffishermen, to furr, and hunt, the  
Winter Season, some of them as farr to the Eastward as the Bay de  
Espere...the Indians of Cape Britton, Freqtly, hunt and takes ffurrs on the  
coast of Cape Ray, it’s accounted by the ffrench, to be the best part of  
Newfoundland, for hunting, and ffurring ... .331  
[339] Further to this statement, Duhaldy, captain of a ship hailing from Saint-Jean-de-  
Luz, provided Taverner with additional details about the coast of Newfoundland,  
particularly near Codroy. He claimed that “the Sauvages of Cape Britton sometimes  
frequent this harbour but not often.”332  
[340] In 1734 Taverner, again gleaning information from a third party, reported to the  
Board of Trade:  
That some Private Men in the Port of Ingarnish in Cape Bretton, contrary  
to the Governor’s Order as I have often been informed, Enable the  
Indians to come from thence to Cape [R]ay to take Furrs and Hunt for  
Venison, which is very great Prejudice to us, that Fish and Trade in those  
parts, the fear of those Indians deterrs our People so much, that We have  
great Difficulty to get Men to go there.333  
[341] The Province stresses it is important to note that the references to natives in  
Taverner’s accounts do not give any indication that families of Mi’kmaq were migrating  
to Newfoundland during this time period and the references to savages are generally  
limited to the west coast, not southern Newfoundland. The fact that Taverner got his  
330  
The same., f. 50v.  
331  
Captain Taverner’s Second Report to the Board of Trade, May 20, 1718 (CO 194/6), f. 237v  
[Province’s Historical Documents, vol. 26, CD 299].  
332  
The same, f. 240v; see also Wicken, Transcript of Evidence (January 25, 2001), pp. 126-127.  
333  
Memorial from William Taverner to the Board of Trade, February 2, 1734 (CO 194/23), f. 181  
[Province’s Historical Documents, vol. 30, CD 359].  
Page: 150  
information about natives from second hand sources suggests that they may be only  
rumours, says the Province, generated by the French to keep the English away from prime  
fishing and hunting areas on the west coast. Yet, Taverner’s reports do offer tantalizing  
insight into the activities of French colonists in Newfoundland. The Province notes it is  
particularly significant that the French appear to have been extracting pelts from the  
interior themselves instead of relying on aboriginal trade partners.334 Dr. von Gernet  
explained that Taverner’s surveys:  
...reveal a very strong sense of French furring activities in southern  
Newfoundland. And I think this has been overlooked because of the  
emphasis that’s given to the fishery. We know that the French planters  
hunted and furred in Belle Bay, Corbin Bay, Bay du Nord, Connaigre  
Bay, Hermitage Bay, Bay d’Espoir, Facheux Bay. And when I say they  
furred, what they did is they engaged in activity which appears to be an  
early version of the seasonal transhumance that’s become a classic  
economic pattern in Newfoundland. That is, they would fish in the  
summer and in the winter they’d remove to more interior locations,  
where they’d set up a type of winter house and then engage in furring  
activities or other winter extraction, resource extraction activities. And  
we begin to get an indication of this in the Taverner reports.  
He continued:  
Now, if any of these Frenchmen had encountered Mi’kmaq, surely there  
would be some record of this. These Frenchmen were Taverner’s  
principal informants. And Taverner himself, of course, had been  
instructed to find savages to trade with. And at one point I recall he even  
hired a translator from Canada in case there were any Aboriginal savages  
to contact. So he was very interested in finding them, but he didn’t find  
any. There’s no mention, whatsoever. He didn’t see any, personally, nor  
did he receive intelligence from the many French informants he  
interviewed  
[342] The Royal Navy, the primary instrument by which the British asserted its authority  
over the Island during the 17th and 18th centuries, provides another group of historical  
records with the potential for identifying a Mi’kmaq presence in Newfoundland.  
Unfortunately, however, between 1713 and 1763, ships of the Royal Navy rarely paid  
formal visits to the south coast of Newfoundland. The French had been removed from the  
334  
For example, see William Taverner to the Secretary of State, October 22, 1714 (CO 194/5), ff. 260-  
261v [Province’s Historical Documents, vol. 24, CD 278].  
Page: 151  
area under the terms of the 1713 Treaty of Utrecht, so it did not require constant military  
surveillance.335 Nevertheless, the area was not completely ignored.  
[343] In 1716 the Board of Trade ordered Lieutenant John Gaudy, of H.M. Sloop Swift,  
to conduct a cartographic survey along the south coast in an effort to “incourage our  
Fishing Ships to resort thither, who are now unacquainted with that Coast."336 Gaudy  
began in 1716 with a survey of St. Pierre, which lasted several days; then headed west to  
Ramea and Burgeo; and finally worked his way back east, to the area around Bay  
d’Espoir and Fortune Bay. He concluded his survey at Placentia in early August of 1717.  
Although Gaudy’s charts no longer survive, his personal journal and the ship’s log are  
still available to researchers.337 When Dr. Olaf Janzen, who studied the documents in  
detail, was asked if the ship’s log contained any references to natives, he replied, “None  
whatsoever.”338 He also asserted that there were no references to natives in Gaudy’s  
journal and agreed that one would expect to see such references if he had actually  
encountered native peoples.  
[344] A second exception to the general lack of Royal Navy visits to the south and west  
coast occurred in 1734, when Captain Crawford, of the H.M.S Roebuck, was ordered to  
investigate reports that French fishermen were settling in the areas around Port aux  
Basques and Codroy. This would have been a blatant violation of the Treaty of Utrecht,  
which prohibited the French from settling on the coast of Newfoundland. Crawford  
caused the removal of any French settlers who refused to swear allegiance to England, but  
left those who willingly took the oath. Crawford’s report on the situation, which was  
summarized in Lord Muskerry’s despatch to London,339 does not indicate that he saw or  
encountered any aboriginal people during this trip. Since Crawford, like all Royal Navy  
commanders serving in Newfoundland, was operating under the direction of the Heads of  
335  
The islands of St. Pierre and Miquelon were returned to the French in 1763 under the terms of the  
Treaty of Paris.  
336  
Board of Trade to Secretary of State Stanhope, March 10, 1715 (CO 5/4), f. 28 [Janzen Supporting  
Documents, vol. 1, Tab 6].  
337  
See Journal Kept by John Gaudy, Lieutenant of His Majesty’s Sloop the Swift, June 1716 - October  
1717 (National Maritime Museum, ADM/L/S 587) [Province’s Historical Documents, vol. 26, CD 294]; and  
Journal kept on board His Majesty’s Sloop the Swift by Commander Thomas Durell, May 17, 1716 - December 23,  
1718 (PRO, ADM 51/4363) [Province’s Historical Documents, vol. 25, CD 286]. Dr. Wicken was not aware that  
Gaudy did a survey of the south coast.  
338  
Olaf Janzen, Transcript of Evidence (May 23, 2001), p. 69.  
339  
Lord Muskerry’s Answers to Heads of Inquiry, October 31, 1734 (CO 194/9), f. 258 [Province’s  
Historical Documents, vol. 30, CD 362].  
Page: 152  
Inquiry, and the Heads of Inquiry explicitly required that he report any encounters with  
people crossing over to the south coast of Newfoundland from Cape Breton Island to hunt  
and trap furs, Dr. Jansen submitted it can be reasonably concluded that he did not, in fact,  
encounter any natives.  
[345] A significant population of French and Irish fishermen had settled in the Codroy  
area between the 1720's and 1750's. The community, which primarily subsisted on  
fishing and trade, was visited by Catholic priests who performed marriages and baptisms.  
There are existing baptismal records from the area, so many of these early settlers can be  
identified. According to Dr. Janzen the French documentation for this settlement is  
substantial, but “there’s never any reference made to aboriginals being present. It’s  
always French or Irish.”  
[346] In 1755, Admiral Boscawen, the Royal Navy Commodore in the North American  
station, launched a preemptive strike against the French fishery in an effort to weaken the  
French Navy. Renewed tensions had made the British much less tolerant of French  
settlers in their territory. British warships unexpectedly arrived in Codroy and herded the  
settlers on board, destroyed their shore facilities, and carried them to Cape Breton Island  
where they were unceremoniously dumped on the shores of Gabarus Bay. According to  
the uncontradicted testimony of Dr. Janzen, there is French and British documentation  
arising from this event, “but, again, there’s no reference to any aboriginals in these two  
sets of information.”340  
[347] It was not until 1763, by which time the settlement at Codroy had been re-  
established under British control, that there was any mention of aboriginals from Nova  
Scotia visiting the area. Captain Samuel Thompson’s report indicates that there were five  
families residing at Codroy and that for the past two winters the settlers were successfully  
employed in furring, but such efforts were “Damp’d” in 1763 by “the Indians from Cape  
Breton ... [who] come over to the Principal Places they used to catch their Furrs".341  
During his testimony Dr. Janzen commented:  
I read that as...that the Indians come over to the principal places that the  
settlers used to catch their furs, and have so intimidated the settlers that  
followed that employ, that the settlers do not intend going out this year to  
fur.  
340  
See also Janzen, Expert Report, p. 7.  
341  
Samuel Thompson, Answers to the Queries of the Board of Trade, 1763 (National Maritime Museum,  
Graves Papers /105), f. 46 [Province’s Historical Documents, vol. 35, CD 505]. See also Letter from Samuel  
Thompson to Admiralty Secretary, Philip Stephens, April 16, 1764 (CO 217/20), f. 320 [Province’s Historical  
Documents, vol. 40, CD 546].  
Page: 153  
[348] Why would the Mi’kmaq suddenly decide to come to Newfoundland in the early  
1760's? In an administrative report relating to his 1763 visit to Codroy, Thompson wrote:  
At my return to Codroy I found the C. Breton Indians were come over to  
Furr dureing the winter between C. Ray & C. Anguille -- This had greatly  
intimidated the Settlers at Codroy, but on my haveing an interview with  
the Indian chiefs, their fears somewhat abated and part of them talked of  
Furring during the winter, by which the winter before they had made £50  
a man. The Indians promise perpetual Friendship, yet they are hardly to  
be relyed upon as they are Roman Catholicks. They were very anxious  
to purchase a Shallop of the People of Codroy, to go to St. Peters for a  
Priest.342  
[349] The Province submits the move to Newfoundland appears to have been motivated  
by a mixture of politics and religion. Isle Royal (Cape Breton Island) had been captured  
by the English in 1758 and the Treaty of Paris in 1763 ensured that it would remain  
English. But the Treaty also returned St. Pierre and Miquelon to the French. The British  
Government had an anti-Catholic attitude at that time, which did not sit well with the  
staunchly Catholic Mi’kmaq. When Abbé Maillard died in 1762, the Cape Breton  
Mi’kmaq no longer had access to a priest and were unable to receive the essential  
sacraments of their faith. The only Catholic and French-speaking clergy available to the  
Mi’kmaq were those on the newly restored island of St. Pierre.343 Although the official  
French position was to discourage the Mi’kmaq from coming to St. Pierre, Dr. Janzen  
testified that in reality their visits were frequent and regular.344 Dr. Janzen offered the  
following conclusions during his testimony:  
The French documentation suggests that the motivation was governed in  
considerable measure by religious concerns. The British documentation  
out of Nova Scotia supports that, that they wished to avail themselves of  
the services of a priest. They wished to restore contact with church  
sacraments, that these had been available to them until the French  
missionary Maillard passed away. I’m sorry I don’t know the precise  
date of that. That was in the early 1760s. And that they therefore made  
an attempt to get in touch with the nearest available settlement of French  
342  
Samuel Thompson, Administrative Report, 1763 (Greenwich NMM, Graves Papers/105), f. 46v  
[Province’s Historical Documents, vol. 35, CD 504].  
343  
Dr. Janzen described the encounter between Thompson of the H.M.S. Lark and a group of aboriginals.  
Thompson suggested that they should direct their requests for a priest to their own governor in Nova Scotia.  
344  
See also Dennis A. Bartels and Olaf U. Janzen, “Micmac Migration to Western Newfoundland,” The  
Canadian Journal of Native Studies, vol. X, no. 1 (1990), p. 78 [von Gernet Supporting Documents, vol. 2, Tab 23].  
Page: 154  
Roman Catholics, which was the island of St. Pierre and the island of  
Miquelon. There may also have been an expectation that if they could  
renew contact with the French, they would be able to renew the process  
of gift exchanges and securing the kinds of supplies and gear that they  
had been receiving in the past and which the British did not seem to  
engage in that kind of exchange to the same degree, if at all. Certainly  
Governor Franklin felt this would be a wise thing to do. Certainly  
Captain Thompson felt that the cost of such gifts would be greater than –  
would be outweighed by the benefits. So possibly there was some  
material concerns as well as the religious ones.345  
[350] Hugh Palliser, the Governor of Newfoundland, did not welcome the Mi’kmaq. In  
Palliser’s view, the Mi’kmaq were illegal immigrants entering Newfoundland with false  
passports that were supposedly issued by British officials in Cape Breton. Although  
many Mi’kmaq had sworn an oath of allegiance and were now officially British subjects,  
Palliser was concerned that their primary motivation for settling in an area so close to St.  
Pierre and Miquelon was to maintain ties with the French through illegal trade. The  
Mi’kmaq presence near this last vestige of the French occupation of North America was  
also seen as a threat to the security of that coast. Palliser expressed his concerns to the  
Secretary of State in a letter dated October 22, 1765:  
I have lately receiv’d Advice of a party of about 130 of the Mickmack  
Indians being seen on the 10th Instt sailing up the Bay of Despair, where  
they said they were going to settle, to hunt &ca; and they pretend to show  
Passports from the Commanding Officer at Louisbourgh to do so. Please  
to permit me to offer my Apprehensions of the dangerous Consequences  
to His Majesty’s Service those People coming to this Country may  
produce, one thing certain is, that it will be impossible to prevent them  
Comunicating with the French, or the French from mixing with them  
disguis’d as Indians, thus the interior part of this Island will very soon be  
filled with them, for if these are permitted to stay all other Indians under  
French influence will directly flock thither ... therefore such People  
getting a footing in such a Situation, I am humbly of Opinion ought to be  
prevented, and I am of Opinion they never would have attempted to come  
to a part of this Island where they never have been before, if they was not  
invited by the French on receiving this [Advice].346  
345  
In discussing the Mi’kmaq presence on the west coast of the Island, Dr. Janzen stated that there were  
sporadic encounters after 1713, but “for the most part, Mi’kmaq did not have a seasonal presence or a regular  
presence in Newfoundland until the early 1760s when everything seems to change...”  
346  
Palliser to Henry S. Conway, October 30, 1765 (CO 194/27), ff. 132-135v [Province’s Historical  
Documents, vol. 45, CD 627].  
Page: 155  
[351] Palliser attempted to deport the Mi’kmaq interlopers, but in a letter to the  
Lieutenant Governor of Nova Scotia dated October 16, 1766, he lamented:  
... they proceeded directly to St. Pierre’s, and thence disper’sed  
themselves through this Country in that Neighbourhood, to the great  
terror of all His Majesty’s Subjects in that part of this Island. I have  
taken those Passes from them, and gave them preemptory Orders to  
return to their own Government; but I now despair of ever getting them  
out of this Country.347  
[352] According to Dr. von Gernet, the historical evidence does not support the  
Defendants’ contention that this migration to Newfoundland was part of the traditional  
Mi’kmaq rotational foraging pattern. He testified it was, in fact, motivated by European  
activities in the region. He explained:  
Basically the 1760s saw the first migration of a significant number of  
Mi’kmaq to southeastern Newfoundland. It’s the first time we see them  
in any numbers since their departure from the region at about the time of  
the Treaty of Utrecht. So, once again, as was the case earlier in the  
century, this was precipitated by events ultimately in Europe. And we  
have to look at history again, and not at an anthropological model.  
Dr. von Gernet also asserted:  
... that the arrival of the Mi’kmaq in Newfoundland has nothing to do  
with the French presence is not, to me, a sensible proposition. And I’ve  
found no good reason to project the events of the early 18th Century back  
into the 16th Century or into the pre-contact period, even with the  
principled use of analogical reasoning.  
[353] The Province notes the vital trading partnership between the Mi’kmaq and the  
French led to important social, religious, and political ties. A formidable military alliance  
was forged between the two groups and in the Province’s view became a prime  
motivating factor for their initial forays to Newfoundland. The late 17th and 18th centuries  
were a volatile period of history, as European powers struggled for supremacy and the  
native groups fought to secure their own advantage in a rapidly changing North American  
environment. The British colonial population along the Atlantic seaboard was much  
greater than that of the French. Dr. Patterson explained how it was, therefore, crucial for  
France to secure an alliance with all of the aboriginal peoples located within its territory  
in order to advance its own colonial objectives and protect its territory from the British.  
French officials provided native men with French firearms, powder, and shot; dispensed  
347  
Letter from Palliser to M. Francklin, October 16, 1766 (CO 217/44), ff. 81-83v [Province’s Historical  
Documents, vol. 48, CD 677].  
Page: 156  
food, medals, and honours at French forts; and, encouraged resettlement so native  
warriors could be more immediately directed in times of war. Despite their efforts to  
maintain a stronghold in North America, the French were eventually defeated by the  
British, thus altering the relationship between natives and Europeans on this continent.  
The Province submits a sustained and significant Mi’kmaq presence in Newfoundland  
emerged as a direct result of their relationship with the French and their participation as  
market hunters in the European fur trade economy. The Province argues it follows that  
the Mi’kmaq arrival in Newfoundland, some 250 years after contact, was as a result of the  
European presence in North America.  
6.  
Critique of Defendants’ Historical Submission  
(a) Introduction  
[354] In the submission of its evidence the Province notes it has relied, wherever  
possible, on primary source documents rather than on secondary source articles or  
interpretation. The 95 volumes of historical documents filed by the Province contain  
some 1,162 primary documents, many of which have been transcribed from English, or  
translated from French, Basque or Dutch. The Province says the reason for its reliance on  
primary material is because the further one is removed from the original source the greater  
the likelihood of error. The Province cautions against relying on secondary articles  
written over the past few decades, particularly following the emergence of aboriginal  
rights litigation. The Province argues there is a tendency by some to interpret and place a  
gloss on the material in support of the author’s pet theory. In this section I discuss  
instances where the Province says defence experts have relied solely on secondary  
literature in the formulation of their opinion and a subsequent review of the primary  
source material, cited within the secondary source, has shown the secondary literature  
erred in its conclusions.  
[355] The Province notes many of these errors occur in the testimony of Dr. Prins, an  
ethnohistorian currently living in Kansas, whose evidence was key to the Defendants’  
theory of a pre-contact Mi’kmaq familiarity with Newfoundland. The Province’s critique,  
however, was not intended as a personal criticism of Dr. Prins, or of his general  
scholarship. The Province accepts that Dr. Prins did not have access to, or at least was  
not provided with, all the primary sources relevant to this enquiry. Dr. Prins was candid  
in expressing his concern over whether he had had the time and resources necessary to  
properly explore the subject of his expert report. During cross-examination, he stated:  
Yeah. I, regretfully, do not have the same resources as you have, and I  
admire all the translations and the ability on the part of the Crown to get  
the originals. I’m a one man operation in the Flint Hills of Kansas.  
...  
Page: 157  
As a matter of fact, if I may answer, I was actually surprised to see that  
all this stuff was available. I wish that I had seen this earlier.  
[356] As an anthropologist, Dr. Prins has acquired a considerable knowledge of the  
Mi’kmaq people in the Maritimes and Maine, and in 1996 wrote a well received book,  
The Mi’kmaq: Resistance, Accommodation, and Cultural Survival (which the Province  
notes does not refer to Newfoundland as part of Mi’kmaq traditional territory). By his  
own admission, however, Dr. Prins knows considerably less about Newfoundland history,  
and the place of the Mi’kmaq in that history. Towards the end of his evidence, Dr. Prins  
candidly stated:  
I should also qualify this answer that I was not called in by Shane  
McDonald, the counsel for the Miawpukek Band, as a Newfoundland  
expert. I was primarily called in as a Mi’kmaq culture specialist and so,  
as a result, in the process, I became much more of someone who has at  
least some knowledge regarding Newfoundland, but I recognize that my  
knowledge regarding Newfoundland history in general is still very  
scanty. I think that was pretty much demonstrated during this trial.348  
[357] The Province’s critique follows, organized by subject.  
(b) The Witte Leeuw - 1606  
[358] In an attempt to support the Defence’s argument of an early Mi’kmaq association  
with Newfoundland, Dr. Prins wrote:  
Among the numerous European sailing vessels active in the region was  
an armed Dutch privateer from Amsterdam named “the White Lion” (“de  
Witte Leeuw”). In 1606, it was reported to be trading with Indians in St.  
Mary’s Bay, on Avalon Peninsula’s southern shore. Afterwards, it  
captured a Spanish and a Portuguese ship and robbed the cargo of whale  
oil, codfish, and guns (in Marshall 1996: 39). Based on circumstantial  
evidence, it appears most likely that these Indians on Newfoundland’s  
south coast were Mi’kmaq hunters and trappers, as it is highly unlikely  
that they were Beothuks.349  
[359] During his examination-in-chief, Dr. Prins repeated the assertion that it was  
the Mi’kmaq who traded with the Witte Leeuw in St. Mary’s Bay in 1606. The  
Province points out that, in reaching this conclusion Dr. Prins had relied on a  
348  
Prins, Transcript of Evidence (December 14, 2000), p. 123.  
349  
Prins, Expert Report, pp. 78-79.  
Page: 158  
secondary source, Ingeborg Marshall’s book entitled, A History and Ethnography  
of the Beothuk. In reference to the Witte Leeuw, Ms. Marshall states:  
The record states that they [the crew of the Witte Leeuw] privateered a Spanish  
and a Portuguese ship, from which they extorted train oil, cod, and guns after  
having “traded with the Indians.” This occurred in St. Mary’s Bay in  
Newfoundland. Presumably, these Indians were Beothuk, perhaps from the band  
in Trinity Bay that met with John Guy six years later.350  
[360] The debate between Ms. Marshall and Dr. Prins was reduced to identifying  
the ethnicity of the Indians who supposedly traded in St. Mary’s Bay in 1606. Ms.  
Marshall’s reference for this information is itself a secondary source: a 1959  
monograph by Simon Hart entitled, The Prehistory of the New Netherland  
Company. The reference in Hart subsequently relied upon by Ms. Marshall reads  
as follows:  
Besides engaging in trade, this voyage expected to do some privateering. During  
the war with Spain many trading vessels sailed westward were supplied with  
letters of marque. Lonck [the captain of the Witte Leeuw] himself stated that in  
1606 he took two ships in St. Mary’s Bay in Newfoundland after trading with the  
Indians. They took 107 barrels of train and seven guns off a Spanish and 24000  
pieces of cod off a Portugese ship.351  
[361] The assumption made by Ms. Marshall, and adopted by Dr. Prins, was that  
the trading referred to by Hart took place in St. Mary’s Bay, Newfoundland.  
However, as Dr. Prins acknowledged during cross-examination, the locus for the  
trading is not obvious from a plain reading of Hart:  
[Burrage, Q.C.]  
... but my suggestion is when you look at the actual Hart  
reference that Ms. Marshall relies on and that in turn, Dr. Prins,  
you rely on, it seems to be clear that the White Lion did indeed  
take - capture two ships in St. Mary’s Bay, but it does not seem  
to be clear from reading it that they actually traded with Indians  
in St. Mary’s Bay.  
[Dr. Prins]  
You are actually right. ... And so I would agree that a conclusive  
statement that it was at St. Mary’s Bay, is not justified, if you are going  
350  
Ingeborg Marshall, A History and Ethnography of the Beothuk (Montreal: McGill-Queen’s University  
Press, 1996), p. 39 [Prins Supporting Documents, vol. 3, Tab 9].  
351  
Simon Hart, The Prehistory of the New Netherland Company (Amsterdam: City of Amsterdam Press,  
1959), p. 14.  
Page: 159  
to be precise on this. So I don’t disagree with your finding, and actually  
I’m delighted to see this [Hart’s] report.352  
[362] Hart’s reference finally takes us to the primary source document; a notarial  
record found in the City Archives of Amsterdam, dated December 4, 1606:  
At the request of the owners of the ship named the “Witte Leeuw” [=  
White Lion], on which Hendrick Cornelisz Lonck was skipper, the said  
skipper and some of his crew were interrogated in order to draw up a  
notarial deed.  
If it is not true that they, the witnesses, were aboard and sailed with the  
above mentioned ship on its previous and last voyage?  
They declare that this article is true.  
And when they returned from Canada, in the Bay of St. Mary in Terra  
Nova last August did they not find a Spanish ship lying there?  
They say yes and affirm unitely that this question is true.  
And if they did not invade and capture the same ship?  
Answer: Yes.  
And if they did not find that it contained one hundred and seven quarters  
of train and seven cannons and no more?  
They declare that this article is also true.  
And if they did not find and capture also a small Portugese ship at the  
same place?  
Answer: Yes.  
And if it was not loaded with about twenty-four thousand fishes?  
Answer: Yes.  
And if they did not capture anything else on the same voyage?  
They state and affirm: No.353  
[363] The Province submits it is clear from the primary source that the Witte  
Leeuw was returning from Canada when it located a Spanish and a Portuguese ship  
in St. Mary’s Bay. The addition of a comma following “Canada” in the original of  
352  
Unfortunately, at the time of Dr. Prins’ cross-examination the primary documents had not yet been  
translated.  
353  
Document regarding the Witte Leeuw (White Lion), December 4, 1606, City Archives Amsterdam,  
Notarial Archives 195, pp. 85v-86v, copy obtained from National Archives of Canada, MG 18, Vol. 012, Series I,  
V.1, c.6, pp. 30-36, filed as L.T. 12.  
Page: 160  
the December 4, 1606 notarial record makes it clear, says the Province, that the  
author drew a geographical distinction between Canada and St. Mary’s Bay in  
Terra Nova. There is no mention, whatsoever, of trading with the Indians in St.  
Mary’s Bay, or elsewhere. But, given the propensity of the Dutch to trade with  
native peoples, the Province accepts there is a possibility that the Witte Leeuw  
traded in what was then known as Canada.  
[364] The Witte Leeuw’s voyage to Canada is further confirmed by Hart’s  
reference to a notarial record from the City of Amsterdam dated December 11,  
1606. The record in this instance is a deposition from Nicolaes Banguemaire, a  
Frenchman from Rouen, “who served as a supercargo during this last voyage on  
the ship arriving from Canada, named the Witte Leeuw [White Lion], on which  
Hendrick Cornelissen Lonck, from Amsterdam, is and was skipper”.354  
[365] In reference to the Witte Leeuw, Dr. Turgeon testified as to the distinction  
between Canada and Terra Nova during this time period:  
[The Court]  
... - check with Dr. Turgeon as to whether there’s anything he  
can elaborate on with respect to this reference particularly that  
Canada – Terre Neuve can mean Canada.  
[Dr. Turgeon]  
Um-hm. Well, not at this particular time. At the beginning of  
the 17th century, there was a clear distinction between Terre  
Neuve and Canada and at least, I don’t see it being conflated in  
my documents. Usually the word “Canada” is used quite  
frequently from the 1580s onwards and at this time, it doesn’t –  
there doesn’t seem to be much confusion, at least not on the part  
of the French. It should also be – perhaps it might be worthwhile  
pointing out that at this time most of the other people who are  
mentioned here, like Dupon Gravais (phonetic) have trading  
posts in Tadoussac and they are trading very actively for furs in  
Canada at the time and there are references to Dutch vessels  
intercepting the French and trading in Tadoussac during this  
period, and so it’s not surprising that this particular reference has  
come up and if I were to speculate on where they traded furs, if  
they traded furs, it would have been in Canada and there is a  
definite reference to Canada in the Hart – at least in the Hart  
document. So I don’t know if that can clear things up.  
354  
Document regarding the Witte Leeuw (White Lion), December 11, 1606, City Archives Amsterdam,  
Notarial Archives 106, pp. 54v-55v, copy obtained from National Archives of Canada, MG 18, vol. 012, Series I,  
V.1, c.7, pp. 37-42, filed as L.T. 13.  
Page: 161  
[The Court]  
...If Terre Neuve refers to Canada, I’m wondering, you know, if  
there’s any possibility of the Canada referring to Terre Neuve?  
Now in your view, as I take it from what you’ve said, you  
believe that most people were distinguishing – most Europeans  
were distinguishing between Canada and Newfoundland and  
presumably between Newfoundland and Canada. Is that – do I  
understand you correctly?  
[Dr. Turgeon]  
Yes, especially the French, who were active in this region and  
who were familiar with the area. I think it was quite clear in their  
minds that there was – when they referred to Newfoundland, it  
was to the island generally, and when they referred to Canada, it  
was everything, as I said yesterday, that was up river from  
Anticosti Island or Gaspe.  
[366] During the examination of Dr. Turgeon, the Court inquired about one further  
reference in Hart concerning the possibility of trade with native peoples, namely, a  
letter read from the King of France at a meeting of the States General on February  
2, 1607.355 The primary reference was eventually located in the Archives of the  
States General, The Hague. It reads:  
Was read a letter from the King of France, containing accusations - that a  
ship which was fit out for war in Amsterdam, named the Witten Leeuwe,  
had been in the land of Canada - which was occupied by the kings of  
France, who, already a hundred years ago - began to colonize [literally:  
populate] it, and there had robbed two ships, which the Lord [/Sir] de  
Monts (who had authority from His Majesty) had sent there, of guns,  
carriages [or mountings] and munitions of war, in addition he wanted  
from them furs, in order that new [?] orders would be issued, that no  
ships from these lands would sail there, because these lands were found  
and colonized at the expense of the kings of France, and after the above  
noted letter and other related documents were deliberated upon, It was  
resolved that the said letter and documents would be placed in the hands  
of the College of Admiralty in Amsterdam, and to charge them, to inquire  
after this matter immediately, and to advise the lords of State about it - in  
order that the stolen guns, carriages and munitions of war can be taken in  
custody soon, in so far as matters are found to substantiate the above  
information and complaint.356  
[367] This letter, as with the preceding sources, says nothing to support a trading  
encounter in St. Mary’s Bay, with Mi’kmaq or for that matter any native peoples.  
355  
Hart, The Prehistory, note 351 above, pp. 14-15.  
356  
Translation of Council of State Minutes, February 2, 1607 (The Hague: Archives of the States General,  
55.1), pp. 83-84.  
Page: 162  
The secondary source, A History and Ethnography of the Beothuk, relied upon by  
Dr. Prins in this instance was, therefore, demonstrably in error says the Province.  
(c) Passage From R. Douglas Francis, Origins  
[368] In his expert report, Dr. Prins states:  
Of course, given the thousands of European fishers on their shores from  
the early 1500s onwards, coupled with growing numbers of European  
hunters and trappers from the early 1600s onwards, Mi’kmaqs confronted  
growing competition for these game animals. ‘With the increasing  
number of European fishermen on the Newfoundland coast it became  
difficult in the mid-seventeenth century for the Indians to obtain access to  
their seaside summer campsites and food resources, particularly those on  
the eastern and southern coast...’ .357  
[369] This extract from R. Douglas Francis, Richard Jones, and Donald B. Smith,  
Origins - Canadian History to Confederation (1988), p. 326, is cited by Dr. Prins  
to promote the notion that the Mi’kmaq faced competition from European hunters  
and trappers in Newfoundland, thereby making it difficult for them to access their  
seaside summer campsites and food resources.  
[370] The complete passage from the Origins shows it is not about the Mi’kmaq at  
all, but the Beothuk, who withdrew to the interior in response to European  
encroachment on the coastal territories. Indeed, as the Origins observes, unlike the  
Beothuk, the Mi’kmaq of the Maritimes accommodated themselves by living near  
the French (a circumstance borne out in 19th century Newfoundland). The  
complete passage reads:  
Newfoundland’s original inhabitants, the Beothuk Indians, suffered  
greatly from the presence of the newcomers. The Beothuk first  
encountered European fishermen in the sixteenth century. On account of  
their use of ochre on their bodies, clothing, and utensils, the early  
Europeans called them “Red Indians” - an expression still used in Britain  
to describe the American Indians. The word Beothuk means “people,”  
and it is the term that the aboriginal Newfoundlanders applied to  
themselves.  
Unlike the Micmac in the Maritimes, who accommodated themselves to  
living near the French, the Beothuk habitually withdrew from the  
357  
Prins, Expert Report, p. 89.  
Page: 163  
Europeans. With the increasing number of European fishermen on the  
Newfoundland coast it became difficult in the mid-seventeenth century  
for the Indians to obtain access to their seaside summer campsites and  
food resources, particularly those on the eastern and southern coast.  
Starvation became a major problem.358 [Emphasis added.]  
[371] The Province submits this shows Dr. Prins’ reliance on the Origins for the  
proposition that the Mi’kmaq hunted and trapped in Newfoundland in the 1500's  
and 1600's is erroneous. What Francis does confirm is the accommodation of the  
Mi’kmaq “in the Maritimes” with the French; a fact substantiated by the primary  
historical material, says the Province.  
(d) Fur Trade “In the Region”  
[372] In his expert report, Dr. Prins states:  
Fishermen active on Newfoundland’s shores often tried to supplement  
their income by bartering with local aboriginals, including Mi’kmaq.359  
[373] Dr. Prins then refers to a number of primary sources which supposedly  
provide evidence of a Mi’kmaq fur trade on the shores of Newfoundland in the 16th  
century. On closer examination, however, submits the Province, it is clear that  
none of the references cited by Dr. Prins support such a conclusion.  
[374] The first reference cited is actually a secondary source, an excerpt from Dr.  
Wicken’s unpublished 1994 doctoral dissertation. The particular reference cited  
reads as follows:  
During the sixteenth century, fishermen heading towards Ktaqamkuk and  
the Labrador coast supplemented their income by trading with local and  
Native populations. Similiar exchanges would also have taken place with  
the Mi’kmaq.360  
358  
R. Douglas Francis, Richard Jones, and Donald B. Smith, Origins: Canadian History to Confederation  
(Toronto: Holt, Rinehart and Winston of Canada, Limited, 1988), p. 326.  
359  
Prins, Expert Report, p. 60.  
360  
William C. Wicken, “Encounters with Tall Sails and Tall Tales: Mi’kmaq Society, 1500-1760” (Ph.D.  
diss., Department of History, McGill University, 1994), pp. 170-171 [Prins Supporting Documents, vol. 9, Tab 4].  
Page: 164  
[375] The Province notes Dr. Wicken does not state that fishermen of the 16th  
century bartered with Mi’kmaq in Newfoundland and the primary documents cited  
by Dr. Wicken do not support this conclusion. These documents include:  
•
•
Archaeological reports evidencing a Basque presence and contact with  
native people at or near the Strait of Belle Isle.  
The narrative of the 1597 voyage of Charles M. Leigh which describes  
a trading encounter at the harbour of Cibo on Cape Breton Island in  
July 1597. Dr. Turgeon and Dr. Prins agree Cibo is in all likelihood in  
St. Anne’s Bay near modern day Sydney and most scholars agree that  
those encountered by Leigh were Mi’kmaq. The Leigh reference says  
nothing of Mi’kmaq trade in Newfoundland, but, to the contrary, is an  
example of such trade in what is now Cape Breton. It reads:  
This day about twelve of the clocke we tooke a Savages boat  
which our men pursued: but all the Savages ran away into the  
woods, and our men brought their boat on boord. The same day  
in the afternoone we brought our ship to an anker in the  
harborow: and the same day we tooke three hogsheads and an  
halfe of traine, and some 300 of greene fish. Also in the evening  
three of the Savages, whose boat we had, came unto us for their  
boat; to whom we gave coats and knives, and restored them their  
boat againe. The next day being the first of July, the rest of the  
Savages came unto us, among whom was their king, whose name  
was Itarey, and their queene, to whom also we gave coats and  
knives, and other trifles. These Savages called the harborow  
Cibo.361  
•
A reference to trading encounters between the Mi’kmaq and a Norman  
merchant named Etienne Bellenger in the spring of 1583; as cited by  
Dr. Wicken on page 171 of his dissertation. The Province notes Dr.  
Wicken does not suggest, however, that this trade occurred in  
Newfoundland. Again, Cape Breton (Unimaki) is identified, along  
with the eastern seaboard and this is borne out by the primary  
source.362  
361  
Richard Hakluyt, The Principal Navigations Voyages Traffiques & Discoveries of the English Nation,  
vol. VIII (New York: AMS Press Inc., 1965), pp. 173-174, filed as Consent 149.  
362  
See T.N. Marsh, “An Unpublished Hakluyt Manuscript,” The New England Quarterly 35 (1962), pp.  
247-252 [Prins Supporting Documents, vol. 13, Tab 15].  
Page: 165  
[376] In relation to his second reference for a supposed Mi’kmaq trade in  
Newfoundland, Dr. Prins states: “By the late 1530s the Portuguese estimated that  
the French had already brought back some 10,000 hides and pelts from the  
region.”363 He supports this statement by citing a letter from Lagarto to John the  
Third, King of Portugal, on January 22, 1539. In this letter Lagarto is reporting on  
what he has been told by the King of France. The relevant passage reads:  
... and he has despatched thither a Breton pilot named Jacques Cartier,  
who lives in Brittany, in a town called St. Malo; and in the two voyages  
he made thither, on the first he lost two ships out of three, and on the  
second one out of two, but always brought one home; and on the last  
voyage he brought back three Indians, two of whom are dead, the one  
who is left being King of three or four towns, according to what the King  
said, for all that I say here I heard from his own lips. And thus he told me  
that the river he sent to discover he has heard is eight hundred leagues  
long, and well up the river there are two falls, and he wishes to send two  
brigantines with the ships, and when the falls are reached the brigantines  
can be taken overland; and beyond the falls the King of France says the  
Indian King told him there is a large city called Sagana, where there are  
many mines of gold and silver in great abundance, and men who dress  
and wear shoes like we do; and that there is abundance of clove, nutmeg,  
and pepper. And thus I believe he will again decide to send there a third  
time seeing his great desire; and thus he told me that he wished to build a  
fort well up the river, on the north side, and that commencing it in the  
summer, in the following year the brigantines may go there to pass the  
falls, for in that land the summer is short, and winter long and  
exceedingly cold; and it is said that down the river are snow-clad  
mountains; and the river contains an abundance of good fish, and at its  
mouth there are oranges and pomegranates. And that there are certain  
animals whose hides as leather are worth ten cruzados each, and for this  
sum they are sold in France, and that ten thousand of these skins being  
brought they are worth 100,000 cruzados.364  
[377] While Dr. Prins was prepared to assume that the geographical reference in  
this passage would include Newfoundland, the Province submits such an  
assumption is not borne out from the text of the passage itself. Taken in proper  
context, says the Province, the King is clearly talking about Jacques Cartier’s  
voyage up what is now the St. Lawrence River and all references are to that area,  
not Newfoundland.  
363  
Prins, Expert Report, p. 60.  
364  
Cook, The Voyages, pp. 130-131 [Prins Supporting Documents, vol. 10, Tab 8].  
Page: 166  
[378] Dr. Prins goes on to provide two additional examples of fur trade “in the  
region”,365 to support the view that “the region” in this context includes the south  
coast of Newfoundland. These examples include:  
•
A deposition from a French mariner from Bayonne describing a  
voyage to the western shore of the Strait of Belle Isle in 1537. Here  
the native peoples are not identified, but are clearly accustomed to  
dealing with Europeans and appear to occupy the western end of Strait  
of Belle Isle, not southern Newfoundland. The citation reads:  
... and to the port where the said Jacques went, called Canada,  
800 leagues; and before reaching Canada, about half-way, that is  
400 leagues, he went up a river and found fresh water for  
drinking; and the entrance is called Grand Bay, and its width  
from one shore to the other is twelve leagues, and entering the  
river they went two leagues inland; and he further stated that the  
said Breton told him that there is wine, millet, herbs, and all  
kinds of animals for meat in that land, which is very healthy, and  
the people very well clothed in skins of deer, sheep, and cows.  
Asked what wind is favourable to entering the river: said he was  
told the entrance could be made in all winds, but wind from the  
east and east to west is more favourable than any. And that five  
years ago this witness was at the said harbour called Grand Bay,  
and fifty leagues farther on at a port called Brest, where he  
loaded his ship with a cargo of cod, and there are no houses but  
only huts made of the bark of trees; and there is an abundance of  
cattle and birds of all kinds, and skins, and the people trade in  
marten skins and other skins, and those who go there take all  
kinds of ironware. And that the Indians understand any  
language, French, English, and Gascon, and their own tongue.366  
•
A deposition from Clemente de Odelica of Fuenterrabia who sailed on  
a vessel from St. Jean de Luz in 1542.367 The relevant passage reads:  
Asked whether he knows or has heard what wind is favourable  
for entering the river which goes from Grand Bay to Canada, and  
what is the distance: said that he heard from the men of St. Jean  
de Luz that from Grand Bay, which is at the mouth of the river,  
to Canada, is 300 leagues, and that the coast runs west-south-  
365  
366  
367  
Prins, Expert Report, p. 61.  
Cook, The Voyages, pp. 161-162 [Prins Supporting Documents, vol. 10, Tab 8].  
Turgeon, Expert Report, p. 29.  
Page: 167  
west, and the river is seven to eight leagues wide from shore to  
shore, and sometimes more, sometimes less; and that there are  
walnut and chestnut trees on the banks, and that farther up the  
land juts out. And that outside in Grand Bay which is at the  
entrance, and in Terra Nova, the country is very cold, so much so  
that not until June is it possible to navigate or to enter by Grand  
Bay because of the cold and snow and ice, and the mountains of  
ice which touch the bottom of the sea, though 100 fathoms deep.  
Asked who are the inhabitants of this land of Grand Bay, and  
farther up the river: said that many Indians came to his ship in  
Grand Bay, and they ate and drank together, and were very  
friendly, and the Indians gave them deer and wolf skins in  
exchange for axes and knives and other trifles; and for Indians  
dressed in skins they are men of skill, and he believes that farther  
up the river the inhabitants are much the same, for they gave  
them to understand that one of their number was Chief in  
Canada. And that they killed more than thirty-five of Jacques’  
men, and their arms are bows and arrows and pinewood shields;  
and they have many boats; and there are many springs and rivers,  
and the country is very healthy.368  
[379] The trading reference in the 1542 deposition is to the “Grand Bay”369 and  
again refers to native peoples who are apparently very familiar with Europeans.  
This time we are given a further clue to the ethnic identity as it is stated that “one  
of their number was Chief in Canada”. This prompted Charles Martjin to conclude  
that they were most likely St. Lawrence Iroquois.370  
[380] Harold Innis’ book, The Fur Trade in Canada,371 is the final source relied  
upon by Dr. Prins to support his proposition that the Mi’kmaq engaged in a fur  
trade in Newfoundland. The reference is to fur trading generally and, at no point in  
this book, does Ennis suggest that the Mi’kmaq were engaged in a fur trade from  
the shores of Newfoundland during the 16th century, notes the Province.  
368  
H.P. Biggar, A Collection of Documents Relating to Jacques Cartier and The Sieur De Roberval  
(Ottawa: Public Archives of Canada, 1930), pp. 462-463 [Prins Supporting Documents, vol. 10, Tab 5].  
369  
van Keulen, Terra Nova [Map], filed by Dr. Turgeon, shows that “Grand Bay” is located in the area  
now known as the Strait of Belle Isle.  
370  
Charles A. Martijn, “The Iroquoian Presence in the Estuary and Gulf of the Saint Lawrence River  
Valley: A Reevaluation,” Man in the Northeast, 40 (1990), p. 56 [von Gernet Supporting Documents, vol. 25, Tab  
236].  
371  
Harold Innis, The Fur Trade in Canada: An Introduction to Canadian Economic History (New Haven:  
Yale University Press, 1930), p. 8 [Prins Expert Report, p. 61].  
Page: 168  
[381] The Province submits that, upon careful examination, it is apparent that none  
of Dr. Prins’ sources support his proposition that fishermen on Newfoundland’s  
shores bartered with Mi’kmaq. To the contrary, all refer either to Cape Breton  
(where trade with the Mi’kmaq is well documented) or to unidentified natives in  
the Gulf of St. Lawrence; the Strait of Belle Isle, entrance to the Gulf then known  
as the “Grand Bay”; and the St. Lawrence River Valley. The Province notes this is  
entirely consistent with the primary sources, particularly the official  
correspondence from Plaisance and the notarial records examined by Dr.Turgeon.  
(e) Nicolas Denys  
[382] As Dr. Prins observed, Nicolas Denys spent a “40-year career as a fur trade  
and cod fisheries entrepreneur on the Mi’kmaq coasts ...”.372 In 1672 Denys  
published a classic work, entitled Description and Natural History of the Coasts of  
North America (Acadia).373 This source provides a great deal of information about  
Mi’kmaq foraging and subsistence practices, as well as their hunting and migratory  
patterns. Dr. Prins accepted that Denys’ work is generally regarded by historians  
as being a reliable source.  
[383] During his evidence-in-chief, Dr. Prins offered the following explanation for  
Denys’ failure to make a single reference to Mi’kmaq travel to Newfoundland in  
order to hunt, fish or trade:  
Nicholas Denys who had a fur-trade post at St. Pierre–or St. Peter’s on southern  
Cape Breton Island, and later in the des Chaleurs Bay. He has been there for  
about 40 years, and his livelihood depends, of course, whether these Micmac are  
showing up with these moose hides and other things that he can sell on to the  
merchant captains coming from Europe. So he begins to keep a close eye as to  
what is happening within his seigneurie. You know, he has the seigniorial rights,  
the entrepreneurship rights, if you will, to Gaspesia, which is the North Shore of  
New Brunswick and parts of northwest Nova Scotia. But he has no seigniorial  
rights as to what’s happening in southern Newfoundland, so that eludes him in  
terms of what’s going on there. ...  
372  
Prins, Expert Report, p. 91.  
373  
Nicolas Denys, The Description, note 166 above .  
Page: 169  
[384] Dr. Prins agreed that, if Denys’ seigneury had included Newfoundland he  
would have written about Mi’kmaq hunting there if it had occurred.  
[385] The Province notes that, in fact, the relevant portion of Denys’ letters patent  
reads:  
To render us a service of this importance, being assured of the zeal,  
devotion, industry, courage, valour, good and wise conduct of the said  
Sieur Denys, who has been nominated and presented to us by the said  
Company, we have, of our certain knowledge, full power and royal  
authority confirmed, and do confirm anew, this Sieur Denys in so far as  
is or may be necessary, and have ordered and established, and do order  
and establish by these presents, signed by our own hand, [as] Governor  
and our Lieutenant-General, representing our person, in all the country,  
territory, coasts, and confines of the Great Bay of Saint Laurens, to  
commence with the Cap de Canceaux as far as the Cap des Rosiers, Isles  
de Terre-neufve, Isles du Cap-Breton, de Saint-Jean, and other Islands  
adjacent, in order to re-establish our rule there and the said Company of  
New France in its rights; to make known there our name, power, and  
authority, to subjugate, subdue, and bring into obedience the peoples who  
live there, and to have them instructed in the knowledge of the true God  
and in the light of the Christian faith and religion; and to command there  
both by sea and by land ... .374 [Emphasis added.]  
“IT IS OUR WILL that the said Sieur Denys, exclusively and over all  
others, shall enjoy the privilege, power, and right to traffic and make the  
fur trade with the said Indians throughout all the extent of the said  
country of mainland and coast of the Great Bay of Saint-Laurens, Terre-  
neufve, Cap-Breton, and other islands adjacent, to enjoy all the privileges  
above declared, [himself] and those whom he will appoint, and to whom  
he will wish to give the charge ...”.375 [Emphasis added.]  
[386] Dr. Prins indicated he had not reviewed the letters patent appended to the  
1908 Champlain Society publication of Denys’ work.  
[387] The Province stresses Dr. Prins’ admission that, if Denys’ seigneury  
included Newfoundland and the Mi’kmaq were travelling to and from the Island,  
then one would expect to see some reference to this in Denys’ book. A careful  
reading of the collateral documents, says the Province, reveals that Denys’  
seigneury did, in fact, include Newfoundland and that his career as a fur trader  
374  
The same,, pp. 62-63.  
375  
The same, pp. 64-65.  
Page: 170  
spanned nearly forty years, which included between twenty and thirty years in the  
official role of Governor and Lieutenant-General.376 Given the extent of Denys’  
interests and power in the region, the Province argues one can reasonably interpret  
his silence to mean that the Mi’kmaq were not travelling to Newfoundland at that  
time.  
(f) Bartholomew Gosnold, 1602  
[388] In support of an early Mi’kmaq familiarity with Newfoundland Dr. Prins  
relied on the account of Barthelomew Gosnold’s voyage in 1602. We have two  
eyewitness accounts from those who accompanied Gosnold on the voyage, Gabriel  
Archer and John Brereton. Archer observes that the “savages” encountered were in  
a shallop with sails and oars, were dressed as Europeans, and “spake divers  
Christian words”:  
From the said Rocke, came towards us a Biscay shallop with saile and  
Oares, having eight persons in it, whom we supposed at first to bee  
Christians distressed. But approching us neere, wee perceived them to  
bee Savages. These comming within call hayled us, and wee answered.  
Then after signes of peace, and a long speech by one of them made, they  
came boldly aboord us being all naked, saving about their shoulders  
certaine loose Deere-skinnes, and neere their wastes Seale-skinnes tyed  
fast like to Irish Dimmie Trouses. One that seemed to be their  
Commander wore a Waste-coate of blacke worke, a paire of Breeches,  
cloth Stockings, Shooes, Hat, and Band, one or two more had also a few  
things made by some Christians, these with a piece of Chalke described  
the Coast thereabouts, and could name Placentia of the New-found-land,  
they spake divers Christian words, and seemed to understand much more  
then we, for want of Language could comprehend. These people are in  
colour swart, their haire long up tyed with a knot in the part of behind the  
head. They paint their bodies which are strong and well proportioned.377  
[389] Archers’ account is partially corroborated by his shipmate, John Brereton:  
And standing faire alongst by the shore, about twelue of the clocke the  
same day, we came to an anker, where sixe Indians, in a Baske-shallop  
with mast and saile, an iron grapple, and a kettle of copper, came boldly  
376  
The same, pp. 57-77. Denys arrived in Acadia in 1633 and received his first concession in 1653. His  
seigneurial rights, along with the title of Governor and Lieutenant-General, were reissued for ten years in 1654, 1667  
and 1677. He died in 1688 at the age of 90.  
377  
Samuel Purchas, Hakluytus Posthumus or Purchas His Pilgrimes: Contayning a History of the World in  
Sea Voyages and Lande Travells by Englishmen and others, vol. XVIII (Glasgow: James MacLehose and Sons,  
1906), p. 304 [Province’s Historical Documents, vol. 2, CD 42].  
Page: 171  
aboord vs, one of them apparelled with a wastcoat and breeches of blacke  
serdge, made after our seafashion, hose and shoes on his feet; all the rest  
(sauing one that had a paire of breeches of blue cloth) were all naked.  
These people are of tall stature, broad and grim visage, of a blacke swart  
complexion, their eie-browes painted white; their weapons are bowes and  
arrowes: it seemed by some words and signes they made, that some  
Basks or of S. John de Luz, haue fished or traded in this place, being in  
the latitude of 43 degrees.378  
[390] There is a general consensus among scholars that the natives met by  
Brereton and Archer were likely Mi’kmaq and the encounter took place off Cape  
Neddick on the coast of what is now Maine. Dr. Prins suggested that the Mi’kmaq  
commander may have been Messamoet, who travelled to France in 1578 and later  
(in 1604 and 1606) acted as a guide for Samuel de Champlain on his first voyages  
along the Maine coast.379  
[391] In his examination-in-chief, Dr. Prins expressed the view that those  
encountered by Gosnold could “describe” Placentia and were able to draw a map  
showing how they came from Placentia in southern Newfoundland to the New  
England coast:  
And what you see here is pretty much the same as Brereton and Archer in  
1602 who were already indicating when they saw these Mi’kmaq on the  
coast of Maine being able to draw out a map, how they came from  
Placentia in southern Newfoundland all the way to northern New  
England and here you see a similar, over and over, the similar kind of  
maritime skills being noted by European observers.  
[392] The Province notes that in fact, the natives encountered by Gosnold did not  
“describe” Placentia. Rather, what Archer recorded was the ability of those  
encountered to “name” Placentia and, with a piece of chalk, describe the coast  
“thereabouts”. Dr. Prins insisted in cross-examination that the reference to “the  
coast thereabouts” could refer to the entire eastern seaboard from Cape Neddick  
(where the encounter occurred) to Placentia in Newfoundland. However, says the  
Province, such an interpretation only serves to stretch what Archer has written  
beyond its ordinary grammatical meaning.  
378  
George Parker Winship, Sailors Narratives of Voyages along the New England Coast 1524-1624 (New  
York: Burt Franklin), pp. 34-35 [Province’s Historical Documents, vol. 2, CD 44].  
379  
Prins, The Mi’kmaq: Resistance, note 122 above, pp. 51-52.  
Page: 172  
[393] The Province submits Dr. Turgeon’s evidence on this point is to be  
preferred:  
[Hearn, Q.C.]  
What do you understand, Dr. Turgeon, by the coast  
‘thereabouts’, described the coast thereabouts?  
[Dr. Turgeon]  
Well, in my interpretation, this is the coast of – the place of their  
encounter, which would have been 43rd degree latitude, and in  
the vicinity again of the coast of Maine or the mouths of the  
Penobscot, the Kenebek, or perhaps even – more likely the  
Kenebek or the Penobscot River. And then they describe the  
coast thereabouts, and they could also name Placentia in the new  
found land. So they were able to draw an outline of the coast of  
the Maine coast, and also named Placentia in the new found  
lands. What I’ve noticed here is that very often the authors have  
conflated the naming of the coast and Placentia in the new found  
lands, and have associated the two, and have – I think in one  
instance, I don’t exactly remember which author does it, but  
indicates that – suggested that they were able to draw a map of  
Newfoundland and Placentia. And if you read this carefully, you  
realize that that’s not the case. I think if you – with the better  
context that the notarial records give us, we have an idea now,  
we realize that the French were trading on this coast and had  
been for almost half a century, and so it’s not surprising that the  
Native Americans of this area had heard of Placentia because this  
is where many of these vessels seem to have been stationed when  
they came to the new world, and this is where many of them  
were actually fishing. So this corresponds quite well with what  
we known about Placentia as being a very major place for the  
fishery, and for European activity in the new world during the  
second half of the 16th century.  
[394] Dr. Prins conceded that the name “Plaisance” is not of Mi’kmaq linguistic  
origin, but is likely Basque in origin. The name first appears on the Vallard map in  
1547 as “Ille de Plaisance.”380  
[395] While Dr. Prins was unfamiliar with the Basque notarial records presented  
by Dr. Laurier Turgeon, he agreed that Basque (including Basque from St. Jean de  
Luz) had been trading with Mi’kmaq in Nova Scotia from 1504 onwards:  
[Burrage, Q.C.] ... Whether, in fact, it wouldn’t be entirely conceivable that those encountered by  
Gosnold would have gotten the name Placentia from those with whom they  
traded over in Nova Scotia.  
380  
See, Hewson, “Presentic,” p. 11 [von Gernet Supporting Documents, vol. 17, Tab 175].  
Page: 173  
[Dr. Prins]  
But I don’t dispute that at all. We have already established that  
the Gulf of St. Lawrence and the whole north shore of Mi’kmaq  
country from 1504 onwards has been in touch with a variety of  
Europeans including the fact that the Portuguese in 1521 had a  
settlement on Cape Breton Island. ...  
(g) Champlain  
[396] In his expert report, Dr. Prins states that Samuel de Champlain wrote that  
“savages” from the mainland (which Dr. Prins interpreted as Mi’kmaq from Nova  
Scotia) sometimes came over to Newfoundland to trade with European fishermen.  
However, notes the Province, the actual passage from Champlain says nothing  
about trade:  
From the island to the mainland on the north is from 8 to 10 leagues,  
according to the locality. The coast of the island running north-east and  
south-west, and facing the Gulf of St. Lawrence, is a hundred leagues in  
length, and is but little known, except in the neighbourhood of Cape Ray,  
where there is a port in which fishing is carried on. The whole circuit of  
the said island of Newfoundland measures over 300 leagues, and, as I  
have mentioned, it has a number of good ports. The land is nearly all  
mountainous, covered with pine, spruce, cedar, birch, with other trees of  
little value. A large number of little rivers and streams come from the  
mountains and fall into the sea. The salmon-fishing is very good in most  
of these rivers, as well as that for other kinds of fish. The cold there is  
severe, and the snow, which falls to a great depth, lasts for nearly seven  
months of the year. Moose, rabbits, and grouse are plentiful. The island  
is not inhabited. The savages sometimes in summer cross over from the  
mainland to see the vessels engaged in the cod-fishery.  
[397] Furthermore, Charles Martijn, in his critique381 of the 1980 Mi’kmaq land  
claims submission,382 noted that the authors of the report relied on an article written  
by Ralph Pastore, who stated that in 1604 Samuel de Champlain “observed that  
Indians from the mainland sometimes came over to the Island to trade with  
European fishermen. In this instance ... the Indians in question were probably  
381  
Charles Martijn, “A Review of the Past Newfoundland Micmac Land Claims Submission” (August 1,  
1995), p. 5, filed as Consent 155.  
382  
Jerry Wetzel, Pat Anderson, and Douglas Sanders, Freedom to Live Our Own Way in Our Own Land,  
ed. Peter J. Usher (Conne River: Ktaqamkuk Ilnui Saqimawoutie and the Conne River Indian Band Council, 1980),  
pp. 2-3 [von Gernet Supporting Documents, vol. 52, Tab 463].  
Page: 174  
Micmacs...”.383 Martijn asserts that Pastore misinterpreted Champlain’s description  
of the coast.384 He states:  
The explorer provides brief discussions on three areas of Newfoundland:  
the southeast coast, the southwest coast, and the northwest coast. When  
he refers to the mainland here, Champlain means the Labrador coast  
which he designates as the “grand terr du Nort” or as “la gradtaire”... It  
is this particular geographical context that he refers to visits by native  
people. Champlain must therefore be talking about trips made by the  
Inuit, or possibly even Montagnais, across the Strait of Bell-Isle to  
French cod fishers in Northwestern Newfoundland. Such crossings by  
the Inuit and the Montagnais were a common occurance well into the 19th  
century ... .385  
[398] Martijn also points out that Champlain “explicitly refers to Cape Breton as  
an island, and not as the continent...”.386  
[399] The Province submits it is possible that Dr. Prins’ error stems from his  
reliance on a secondary source for this passage. Apart from the obvious absence of  
any reference to trade, one might ask, says the Province, as Dr. von Gernet does,  
“why bring furs to Newfoundland when you can dispose of them in Cape Breton?”  
Further, while Champlain learned from the Mi’kmaq various details about their  
travels in Acadia, he left no indication in his seven volume account that they  
travelled beyond Cape Breton.  
[400] Dr. Prins did not have the primary reference while writing his report, but  
relied on notes that he had taken sometime in the 1980's. He was therefore unable  
to contradict the suggestion that Champlain made no mention of trade, or the fact  
that the “mainland” referred to Labrador and not Cape Breton.  
(h) October 25, 1694, Report of de Brouillan  
383  
Ralph T. Pastore, Newfoundland Micmacs: A History of their Traditional Life, Newfoundland Historical  
Society, Pamphlet no. 5 (St. John’s: Newfoundland Historical Society, 1978), p. 11 [von Gernet Supporting  
Documents, vol. 32, Tab 298].  
384  
See Biggar, The Works, vol. V, pp. 157-161 [Province’s Historical Documents, vol. 3, CD 54].  
385  
Martijn, “Review”, note 3 above, p. 5  
386  
The same. See also Biggar, note 384 above, p. 161.  
Page: 175  
[401] In his Expert Report, Dr. Prins makes reference to Villabon, the commander  
at Acadia, sending 45 Indians, probably Mi’kmaq, to Placentia from the Bay of  
Fundy in 1694.387 There is no evidence, however, says the Province that those sent  
by Villabon actually arrived in Placentia. In fact, Villabon’s journal indicates that  
the privateer, Baptiste, took 15 of the 45 on board his ship, but he did not travel  
further than the St. John River.388 The Province submits it is questionable whether  
the naval captain, de Bonaventure, arrived at Placentia with the remaining  
Mi’kmaq, as neither Villabon’s journal nor the existing documents from Plaisance  
make any mention of such an occurrence.  
[402] In the absence of evidence, Dr. Prins makes the assumption that the Indians  
sent by Villabon arrived at Placentia. Whether they did or not is not really the  
issue, says the Province. Dr. Prins stated: “Having come to Newfoundland, these  
Mi’kmaq informed the French commander of the garrison at Plaisance, Brouillan,  
about ‘la decouverte de sauvages qui habitent au sud de l’isle de Terre-Neuve...’.”  
He goes on to state: “Although it is unclear who these Indian hunters reported by  
the Mi’kmaq were, they may have been Beothuk”.389  
[403] The letter cited by Dr. Prins to support his proposition that the Mi’kmaq had  
informed de Brouillan of sauvages living on the south coast of Newfoundland  
actually reads:  
Much advantage may still be derived from that settlement since the  
discovery of sauvages living in the south of the island of Newfoundland.  
Those people are so unwarlike that the presence of a few Europeans puts  
them to flight, and they are given over only to hunting. All of which  
leads one to estimate from the nature of their country that more beaver  
than furs of lesser importance could be taken there.390  
[404] It is not apparent from reading the letter whether it was Mi’kmaq, or indeed  
the French themselves, who discovered the Indians on the south coast. On cross-  
387  
Prins, Expert Report, p. 100.  
388  
John Clarence Webster, Acadia at the End of the Seventeenth Century (Saint John: The New Brunswick  
Museum, 1934), p. 56 [Province’s Historical Documents, vol. 71, CD 949].  
389  
Prins, Expert Report, p. 100.  
390  
Letter from de Brouillan to the Minister of Marine, October 25, 1694 (France: Archives des Colonies  
C11C/2), f. 20 [Province’s Historical Documents, vol. 11, CD 149].  
Page: 176  
examination Dr. Prins agreed his supposition that Mi’kmaq were present and were  
the ones to inform the French was speculation and unsupported by the primary  
source. Dr. Prins also agreed that the tribe encountered by the French were not  
Mi’kmaq, but in all likelihood Beothuk, since the Beothuk were continuing to  
make forays to the south coast of Newfoundland at that time.  
(i)  
March 22, 1703, Report of Durand de la Garenne  
[405] Dr. Prins referred to a report dated March 22, 1703 by Judge Durand de la  
Garenne of Plaisance’s Admiralty Court. Dr. Prins viewed Garenne’s report as  
offering a “small but important window on a very complex geopolitical situation  
involving the Mi’kmaq in southern Newfoundland”.391 Dr. Prins then quoted from  
a primary document, which was erroneously cited in William Newbigging’s 1993  
report for the Federation of Newfoundland Indians. The Newbigging citation  
relied upon by Dr. Prins reads as follows:  
M. de Costebelle was outfitting men for an attack against the English in  
the next year. For this he had as allies, fifteen or twenty Indians from  
Acadia, [Mi’kmaq and Abenaki ?] who were to be used to spread terror  
amongst the enemy ... There were also some other Canadian Indians  
[Mi’kmaq] who lived in this area and were anxious to take part in the  
attack on the part of the French against the English.392  
[406] The actual primary document, however, says nothing of “Canadian Indians”  
who “lived in this area”. Rather, it reads as follows:  
For the protection of the two forts it would be well if it pleased H.M. to  
approve an increase in garrison strength of two companies, one for the  
upper fort, which would be relieved only two or three times a year; the  
other for the lower fort, which is fairly extensive; and to bring here 15 or  
20 sauvages from Acadia to apprehend deserters and, along with a few  
391  
Prins, Expert Report, p. 108.  
392  
William J. Newbigging, “Interim Report Federation of Newfoundland Indians: French Documents”  
(Unpublished MS, March 31, 1993), p. 39 [Prins Supporting Documents, vol. 5, Tab 4].  
Page: 177  
Canadians who are in this place, to detect enemies in hiding. These are  
the people the English here fear much more than they do Frenchmen.393  
[407] Indeed, Durand de la Garenne’s suggestion to bring “sauvages” from Acadia  
to Newfoundland implies that none were present in Newfoundland at that time.  
Therefore, despite Dr. Prins assertion, says the Province, Durand de la Garenne’s  
report does nothing to support the suggestion that there are Mi’kmaq, or any other  
native groups, living in the area of Plaisance.  
(j) Pierre de Neufville  
[408] As an example of Mi’kmaq/French conflict in the 17th century, Dr. Prins  
refers to a 1668 report of the secular priest, Pierre de Neufville.394 De Neufville’s  
report, as translated by Luca Codignola, tells us that Neufville recently returned  
from:  
northern parts, known as Newfoundland, where there is neither bishop  
nor spiritual superior, because the land is only inhabited by savages and  
refugees, all of whom live without without [sic] law or knowledge of  
God, [being] without any consecrated place in which a priest, sent here,  
would be able to celebrate. Yet every year several ships gather there  
from southern France, for example, during the past year there were 53,  
each of them containing almost 100 men who are fishers by trade, and are  
very often annoyed by these savages and refugees when they; ‘labour in  
salting the fish, which nourish France, Spain, Italy, etc.’. For four years  
the writer applied for faculties to the bishop of Saint-Malo... .395  
[409] Based on Neufville’s report, Dr. Prins concluded that the hostilities were  
probably between Mi’kmaq and French fishermen in the vicinity of St. Pierre. His  
explanation for reaching this conclusion was twofold: there was what he described  
as a “tenuous relationship” between the Mi’kmaq and French; and fishermen from  
Saint-Malo were known to be in St. Pierre.  
393  
Letter from Durand de la Garenne to the Minister of Marine, March 22, 1703 (France: Archives des  
Colonies C11C/4), f. 20 [Province’s Historical Documents, vol. 15, CD 190].  
394  
Prins, Expert Report, p. 95.  
395  
Codignola, “Documents”, p. 15 [Prins Supporting Documents, vol. 14, Tab 10].  
Page: 178  
[410] However, on cross-examination, Dr. Prins agreed there was at the time a well  
documented conflict between fishermen from Saint-Malo and the Inuit396 on the  
east coast of Newfoundland’s Northern Peninsula (known at the time as the Petit  
Nord). The Province also notes there is nothing to suggest that the Mi’kmaq were  
in conflict with French fishermen at this time. Rather, the evidence indicates that  
the Mi’kmaq and the French were on friendly terms with one another. The  
Province submits Neufville’s description of the hostile savages as “without law or  
knowledge of God” is hardly an apt description of the Mi’kmaq of the late 1600's.  
[411] The conflict between Inuit and Saint-Malo fishermen in the Petit Nord is  
well documented in the primary sources throughout the 1600's. We have, for  
example, petitions from the residents of Saint-Malo to arm a vessel and locate it at  
the harbour of Petit Maître on the Northern Peninsula.397  
[412] These primary sources relating to Saint-Malo had not been reviewed by Dr.  
Prins prior to the preparation of his report. During cross-examination Dr. Prins  
commented: “as a matter of fact, if I may answer, I was actually surprised to see  
that all this stuff was available. I wish that I had seen this earlier.”  
[413] Ultimately, Dr. Prins accepted that, if the instance described by Neufville  
occurred in the Petit Nord, the aggression was more likely to be with the Inuit.  
Upon perusal of the original document he stated, “it is not possible to rule out Inuit  
396  
For an identification of those involved, see an anonymous document circa 1690 quoted in Charles de la  
Morandière, Histoire de la pêche française de la morue dans l’Amérique septentrionale, des origines à 1789, vol. 1  
(Paris: G.P. Maisonneuve et Larose, 1962), p. 437 [Province’s Historical Documents, vol. 8, CD 123] which states,  
“...the Biscayens do their fishing from there to Grand Bay, where they barter with the sauvages we call Esquimaux,  
who make war on our fishermen of the Petit Nord.”  
397  
Extract from the Registers of Parlement [of Brittany], March 31, 1640 (France: Archives des Colonies,  
Serie F3, Collection Moreau de Saint-Méry, vol. 54, pt. 1), ff. 251-251v [Province’s Historical Documents, vol. 4,  
CD 63]. See also Interrogation of Dericq Hensse, October 23, 1642 (France: Archives departementales de la  
Charente-Maritime. Amirauté de la Rochelle. B-5656, pièce 12) [Province’s Historical Documents, vol. 4, CD 64];  
Decree of the Parlement of Rennes concerning the arming of a warship to protect the fishery of the Petit Nord,  
December 23, 1643 in de la Morandière, Histoire de la pêche, vol. I, p. 387 [Province’s Historical Documents, vol.  
5, CD 65]; Letters patent authorizing merchants of St. Malo to arm an escort vessel for the fisheries of the Petit  
Nord, January 7, 1647 in de la Morandière, Histoire de la pêche, vol. I, pp. 387-388 [Province’s Historical  
Documents, vol. 5, CD 66]; and Decree of the Council of State, April 28, 1671 (France: Archives de la marine, Serie  
A1, Liasse 11, Item 18) [Province’s Historical Documents, vol. 5, CD 87]. For the location of Petit Maître, see  
Partie Orientale de la Nouvelle France ou du Canada avec L’Isle de Terre-Neuve ... Tobias Conrad Lotter, 1720,  
filed as F.J.T. 20.  
Page: 179  
or that it happened at Petit Nord”, and “there’s no reason for me, now, to maintain  
that [those] in the Petit Nord were Mi’kmaq.”  
[414] Dr. Frederick Thorpe translated the Saint-Malo documents and testified that  
the incident referred to by Neufville most likely occurred in the Petit Nord because  
there is recorded violence between fishermen from Saint-Malo and natives in that  
region and by this time the French and Mi’kmaq had developed a close allegiance.  
[Dr. Thorpe]  
Yes. I believe it’s the Petit Nord that he’s [Neufville] referring  
to because I don’t know any other area where the St. Malo  
people were fishing, where there was this kind of violence.  
There’s no record of it anywhere else, so it must be the Petit  
Nord.398  
(k) Mi’kmaq Chiefs Poboneskou and Michau  
[415] In his expert report, under the heading “Mi’kmaq Chiefs Poboneskou and  
Michau in Newfoundland”, Dr. Prins stated: “During the summer of 1711, there  
were a large number of Mi’kmaq in southern Newfoundland. This group probably  
included not only warriors following Chief Poboneskou, but also Cape Breton  
Chief Jean Michau”.399 Dr. Prins goes on to quote from a primary document, as  
translated by Newbigging, for the proposition that “French authorities at Plaisance  
provided some 200 Mi’kmaq with supplies during their stay on Newfoundland’s  
south coast”.400 The Newbigging quote reads:  
The Indians who have come from the coast of Acadia have taken since  
the last year, four or five small English fishing boats along the south  
coast of Newfoundland. They were commanded by Poboneskou. All  
along the coast all the way to Boston, the English are afraid of what these  
Indians will do to them. There are about 200 of these Indians who right  
now are taking part in attacks against the English but they will leave  
before too long. They have eaten much of the corn which we had as  
provisions.401  
398  
This is an opinion shared by Dr. von Gernet; see von Gernet, Expert Report, p. 128.  
399  
Prins, Expert Report, p. 119.  
400  
The same.  
401  
Newbigging, “Interim Report”, pp. 43-44 [Prins Supporting Documents, vol. 5, Tab 4].  
Page: 180  
[416] The primary source supposedly quoted by Newbigging is a letter from  
Durand la Garenne to the Minister dated July 20, 1711, written from Plaisance.  
The relevant portion of the letter reads:  
Since last year, the sauvages of the coast of Acadia have taken 4 or 5  
small English fishing vessels along the coast. One Silvain, commanding a  
small privateer plying the Boston coast, has taken several small prizes  
and, returning along the coasts of Acadian, entered the port of  
Poboneskou. There he found the said Sieur de Poboneskou and almost  
200 sauvages, who were, as one might say, dying of hunger. That led  
him to leave about 80 barrels of wheat from one of his prizes at the  
disposal of M. de Pobomeskou, who took charge of distributing it among  
them according to their need, to be ground in his mill. And they were  
taken out of their desperate straits when he shared some of [f.72v] the  
lead and powder from his privateer with them; for they had quite run out  
of it.402  
[417] The Province notes the letter says nothing about 200 Mi’kmaq on  
Newfoundland’s south coast, but describes an encounter of 200 sauvages  
[presumably Mi’kmaq] and Sieur de Poboneskou in the port of Poboneskou403 on  
the coast of Acadia. Further, the reference to the capture of 4 or 5 English ships  
“along the coast” seems, in the context of the document, to refer to the coast of  
Acadia. There is no basis to conclude from the language of the document that the  
capture occurred in Newfoundland, says the Province.  
[418] This misquotation in Newbigging led Dr. Prins to devote an entire subsection  
of his expert report to what he erroneously thought was the presence of Mi’kmaq  
Chiefs Poboneskou and Michau and some 200 Mi’kmaq in Newfoundland. Faced  
with this contradiction on cross-examination Dr. Prins candidly stated:  
In other words, there’s a red flag that I did not see because I trusted the secondary  
source, and this is, yet, another incident of being very careful with secondary  
sources if primary sources are available.  
(l)  
Establishment of Placentia  
402  
Letter from Durand la Garenne to the Minister of Marine, July 20, 1711 (France: Archives des Colonies  
C11C/7, ff. 72-72v [Province’s Historical Documents, vol. 22, CD 247].  
403  
The Yarmouth area of Nova Scotia. See Prins, Transcript of Evidence (December 13, 2000), p. 188.  
Page: 181  
[419] In his expert report and during his testimony, Dr. Prins expressed the belief  
that Plaisance was fortified by the French, in part, to protect a fur trade with the  
Mi’kmaq:  
In order to protect a sea route to Canada, as well as their considerable  
fishing and fur trade interests on the south coast of Newfoundland, the  
French began building a small permanent settlement at Plaisance  
(Placentia) in 1662.404  
[420] In reaching this conclusion, Dr. Prins relied on a report in the Calendar of  
State Papers, which suggested that the French “fort at Placentia in the south part of  
the island is only to defend them from the Indians [Mi’kmaq] who come off from  
the main and molest them in their beaver trade, for which trade only they inhabit  
there”.405  
[421] Further to the reference relied upon by Dr. Prins is a report to the Privy  
Council Committee on Newfoundland in 1675, which according to John  
Humphreys, “probably drew its conclusion from the testimony of West Country  
fishermen, who would naturally understate the French interest in the fishery in  
order to counter demands for fortification and settlement”. Humphreys also states  
that “French sources indicate that this report was very far from the truth”.406 It  
appears, therefore, says the Province, that Dr. Prins’ conclusion is based on nothing  
more than false rumours generated by the English to protect their fishing interests  
in the region.  
[422] The Province notes that Dr. Prins was apparently unaware that in 1675 Sir  
John Berry, commanding the H.M.S. Bristol, was sent to Newfoundland with  
specific instructions to investigate the rumours of a fur trade. In his report Berry  
states unequivocally, “The strongly garrisoned French fortifications in Placentia  
404  
Prins, Expert Report, p. 93.  
405  
Prins, Expert Report, p. 95. See also Order-in-Council, May 5, 1675, Calendar of State Papers,  
Colonial Series, America and West Indies, vol. IX, 1675-1676, Doc. No. 550, p. 227  
[Province’s Historical Documents, vol. 6, CD 92].  
406  
Humphreys, Plaisance, note 93 above, p. 23.  
Page: 182  
and other parts are for securing their fishing trade only, and not for the beaver trade  
as pretended, for no Indians ever come to those parts”.407  
[423] The Province notes that in the many primary documents from Plaisance filed  
in this proceeding, there is not a single reference to the French establishing  
Plaisance for the purpose of protecting a fur trade. To the contrary, says the  
Province, all sources show that the inhabitants of Plaisance were doing their own  
trapping and hunting and were not engaged in trade with the Mi’kmaq or any other  
native group.408  
(m) October 22, 1705, Subercase Report  
[424] In his expert report, Gerald Penney relied, in part, on an article he co-  
authored with Heather Nichol entitled, “Burnt Knapps: A Mi’kmaq Site in  
Newfoundland”. An excerpt from that article, quoted by Mr. Penney in his Report,  
states: “In 1705, 20 to 25 Micmac families, over 100 people, are reported as  
arriving ‘out of the forests’ at Placentia ...”.409  
[425] The secondary source relied upon by Mr. Penney in reaching the conclusion  
that the Mi’kmaq arrived “out of the forests” is a 1978 article by Dr. Ralph Pastore  
entitled, Newfoundland Micmacs: A History of Their Traditional Life.410 However,  
the page relied upon says nothing about Mi’kmaq arriving “out of the forests”.  
407  
Observations in the year 1675 by Sir John Berry, Calendar of State Papers, Colonial Series, America  
and West Indies, vol. IX, 1675-1676, Doc. No. 769, p. 329 [Province’s Historical Documents, vol. 6, CD 90].  
408  
Account of the sacking of the stores at Plaisance, October 15, 1663 (France: Archives des Colonies  
C11C/1), ff. 13-13v [Province’s Historical Documents, vol. 5, CD 76]. See also Letter from Thalour du Perron,  
September 18, 1662 (France: Bibliothèque nationale de France, Département des manuscrits, Collection Mélanges de  
Colbert), vol. 111, ff. 322-322v [Province’s Historical Documents, vol. 5, CD 72]; Draft instructions for commander  
of fort and settlement of Plaisance, December 8, 1666 (France: Archives des Colonies C11C/1), ff. 24-26v  
[Province’s Historical Documents, vol. 5, CD 81]; Instructions from Colbert de Terron to La Poippe, April 7, 1670  
(France: Archives des Colonies B/2), ff. 61-63 [Province’s Historical Documents, vol. 5, CD 84]; Summary of letter  
from Parat to the King, 1685 (France: Ministère des Affaires Étrangères, Mémoires, Amérique, 1661-1789), ff.  
468v-471v [Province’s Historical Documents, vol. 7, CD 102]; Summary of letter from Parat to the Minister,  
September 18, 1687 (France: Archives des Colonies, Serie F3, Collection Moreau de Saint-Méry, vol. 54), ff. 256-  
266 [Province’s Historical Documents, vol. 8, CD 119]; and Letter from Parat to the Minister, September 4, 1689  
(France: Archives des Colonies C11C/1), ff. 115-119 [Province’s Historical Documents, vol. 8, CD 121].  
409  
Penney, Expert Report, p. 125.  
410  
Pastore, Newfoundland Micmacs, p. 11 [Penney Supporting Documents, vol. 2, Tab 3].  
Page: 183  
Rather, Dr. Pastore takes us to the primary source, a letter from Subercase to the  
Minister dated October 22, 1705, in which Subercase states:  
I shall inform you, my lord, that 20 or 25 families of the sauvages  
Miquemacs from Cape Breton have crossed over to this island. I have  
sent them twice to the English coasts where they have worked wonders.  
It is they who killed the 18 men on the ships of the Queen of England,  
that I have already told you about. They have spread unbelievable terror  
into enemy ranks. They intend to settle on this island, which most  
certainly will reap great advantages from their doing so. The rest of their  
nation is to come in the spring, and I shall do everything within my  
power to hold them to that. I hope, in the interest of the King’s service  
and the well-being of this colony (where they will fit in as well as they  
would at Port Royal), you will be pleased to send them, here, the presents  
they have been given where they have been living. They are abandoning  
that land in order to give the moose, and other animals on which they  
have been subsisting, time to regenerate. I even hope that, out of charity,  
you will give the order for us to be sent the funds intended for their  
missionaries, which they are vigorously pressing me to request.411  
[426] On cross-examination Mr. Penney agreed that the letter from Subercase says  
nothing of Mi’kmaq arriving “out of the forests”, but simply that they had crossed  
over from Cape Breton. The Province submits this corrects the erroneous  
impression that Mi’kmaq were present at Placentia and simply walked out of the  
woods to be of assistance to the French.  
(n) John Thomas  
[427] As further evidence of the presence of Mi’kmaq hunters on the Island of  
Newfoundland, Dr. Prins relied upon a narrative written by John Thomas:  
In 1680, another Englishman on the Newfoundland coast reported  
Mi’kmaq hunters on the Island. Writing from Bulls Bay in mid-  
September, John Thomas wrote about the Island’s “salvadges”  
(obviously lumping together Beothuk and Mi’kmaq Indians) ... .412  
[428] The relevant portion of Thomas reads:  
411  
Letter from Subercase to the Minister of Marine, October 22, 1705 (France: Archives des Colonies  
C11C/4), ff. 219-219v [Province’s Historical Documents, vol. 16, CD 200].  
412  
Prins, Expert Report, p. 92.  
Page: 184  
The Ancient Nations who formerly in a wilde maner possessed this Land,  
are mear Salvadges, tawny and Naked; till that some are now clothed,  
since they have some doings with New England men. They are verie  
dextrous att bows and Arrows (and have Guns now got amounst them  
alsoe) with which they most comonly fight and kill their food.  
Multitudes of them doe yet live and keep in the Northern partes. They  
destroy the wilde dear (& Bears which are alsoe by the English said to be  
good meat here) likewise they kill foxes and otters [f. 230] and the  
provident Beaver, feeding upon their flesh, which is most if not all the  
food these Salvadges have; and preserving the Fur they sell a great  
quantitie of it. They bear a deadly few’d and hatred to the English, but  
are said to have a Commerce with the french in this land.413  
[429] In his report and evidence-in-chief, Dr. Prins expressed the view that  
Thomas was referring to two ethnic groups, Mi’kmaq in the south and Beothuk in  
the north:  
In this context it is useful to mark out how this somewhat confusing  
account lumps the Beothuk inhabiting the Island’s northern woodlands  
and the Mi’kmaq on the Island’s southern coasts.414  
[430] In forming his conclusion, Dr. Prins relied upon the words “are said to have  
a Commerce with the french in this land”. Dr. Prins concluded that such commerce  
would entail a trading establishment and since, in his opinion, Placentia was  
established in part as a fur trading post, the commerce referred to must be in that  
region of the Island:  
[The Court]  
I understand Dr. Prins to be saying that he reads “Commerce  
with the French in this land” as implying that the French are  
established somewhere in this land, would that be correct?  
[Dr. Prins]  
That’s correct. And the only place that I know of that they are  
established is Placentia and St. Pierre.  
[Burrage, Q.C.] Maybe part of the answer will come if you look at the Placentia material in detail  
to see whether there is indeed evidence of fur trade in Placentia.  
[431] As previously noted, however, says the Province, Plaisance was not  
established by the French as a fur trading establishment.  
413  
Letter from John Thomas, September 15, 1680 (Oxford: Codrington Library, All Souls College, Wynne  
Collection, ms 239), ff. 229-230v [Defendants Historical Documents, vol. 12, Tab 6].  
414  
Prins, Expert Report, p. 93.  
Page: 185  
[432] The Province suggested that Thomas could well have been referring to the  
Montagnais, a group known to dwell in northern parts, trade with the French, and  
be in possession of firearms. This prompted the following exchange:  
[Burrage, Q.C.]  
So to come back to my question then, having had this discussion,  
my question was did Montagnais have guns at this point in time?  
Is that a question you feel confident to answer?  
[Dr. Prins]  
Many Montagnais by this time have guns.  
But not all?  
[Burrage, Q.C.]  
[Dr. Prins]  
Not all.  
[Burrage, Q.C.]  
[Dr. Prins]  
Some - those without guns are using what?  
Most likely bows, spears, and bows and arrows.  
[Burrage, Q.C.]  
Bows and arrows. And were the Montagnais at this time  
engaged in trade with the French?  
[Dr. Prins]  
Not as far as I know on Newfoundland, but in the area  
opposite Anticosti Island and of course from the  
Saguenay River, in that area. There is extremely little  
information about what is going on at that period and a  
little bit farther up as you indicated.  
[433] Dr. Prins eventually acknowledged that Thomas may not be referring to two  
ethnic groups at all, but rather to one group:  
[Dr. Prins]  
... But I find it a very interesting interpretation. I had not even  
thought about it until he [Burrage] posed it to me. So in that  
regard, it is certainly fodder for my mind to contemplate when  
I’m flying back to Kansas. Could they have been Montagnais.  
[434] The Province submits Dr. von Gernet’s measured approach to the reliability  
of Thomas ought to be given greater weight:  
[Dr. von Gernet]  
Well, I think Thomas conflated hearsay derived from disparate  
sources. And I think most scholars agree with that assessment,  
including Professor Prins. I’m not convinced that the sources  
that Thomas relied on were reliable or confined their  
observations to Newfoundland. And it’s this allusion to  
intercourse with New Englanders is rather suspicious. And  
Page: 186  
furthermore, Thomas says absolutely nothing about Indians in  
the south. On the contrary, he says, “They live and keep in the  
northern parts.” And here again, we have to go back to the  
hundreds of ships from St. Malo who frequented the Petite Nord  
during this period. So this raises the possibility that his comment  
about these French Amerindian trade relations occurred on the  
Northern Peninsula.  
I would concur with Professor Pope, who concluded that we may  
well doubt that Thomas actually met any Beothuk, let alone  
Mi’kmaq or Innu during his visit to Newfoundland. And we  
know that the ship that he was on travelled no further than the  
Bay de Verde and no further south than Renews on the east coast  
of the Avalon. So, his remarks are basically a record of what  
Pope describes as the folk ethnography of planters, somewhat  
removed from the various Native peoples of a region. So as the  
hearsay of a belief of the planters, we shouldn’t give it much  
more weight than some of the English rumours that we have  
during this time.  
There are some aspects of the Thomas account that I think we  
can give some weight to. I think he probably did see the English  
engaged in furring during his brief soldiering in the vicinity of, if  
I recall, I think it was in Bay Bulls. But beyond that, I really  
don’t think we can make much more of that record. And in any  
event, Prins’s interpretation of the Thomas account is  
inconsistent with other English reports, and of course, as well as  
with the French record at Plaissance.  
(o) John Aylred  
[435] In his expert report, Dr. Prins cited a report by John Aylred and erroneously,  
says the Province, describes the narrative as a 1661 sojourn in southern  
Newfoundland:  
An Englishman named John Aylred made a revealing report after  
returning from a 1661 sojourn in southern Newfoundland -- a place he  
described as frequented by what were obviously Mi’kmaq and apparently  
not inhabited by any other tribe. In his words, ‘... to that part of the land  
where [since 1662] the French forts are at Plasensia, St. Peters & the rest,  
no Indians come but some Canida Indians from the forests in Canida in  
frensh shalloways [shallops] with frensh fowling peises [shotguns] all  
Spared them by the frensh of Canida soe for them need noe chaine,  
souldiers nor ordinanse’.415  
415  
Prins, Expert Report, p. 92.  
Page: 187  
[436] In fact, the information provided by Aylred is actually contained in “A Breif  
Narrative Concerning Newfoundland” written by John Downing, received and  
marked on November 24, 1676. The Province notes the primary source dates  
Aylred’s sojourn to Newfoundland as 1676 and not 1661.416  
[437] Further, the primary source refers to the fort (or possibly fort’s) of Canida  
and not forests as suggested by Dr. Prins:  
A Mercant of Waterford in Ireland M.r John Aylred, being in  
Newfoundland in June 1676 gave this following relation concerning  
Placentia; the french Inhabitants were then near two hundred and fifty  
families, which according to our families may bee above two thousand  
men, their garrison of Soldiers four hundred men paid by the King.  
Three hundred Kintalls for each boat one yeare, with other account.d with  
them an ordinary voyage, their fishes from trepasse round the Island near  
to Bonivista, many french and Biskenners, the Biskenners Subjects to the  
King of Spain, the french shipps are Supposed not lesse then two hundred  
Saile of Ships of good force, from thiry gunns to twelve; scarce any  
under eight; in time of warr they have two men of warre about 50 gunns  
each of them, so that p.t of the land where the french forts are, as  
Placentia, S.t Peters and the rest, no Indians come but some Canada  
Indians, from the fort of Canida in french/Shalloways, with french  
fowling peices, all sparred them by the french of Canida; so for them  
need no chaine, Soldiers, nor Ordinance.417  
[438] In his expert report, Dr. Prins states that:  
Given the earlier scenario traced out for the region’s theater, it is clear  
that these Indians were Mi’kmaq, not Beothuk.418  
[439] However, the Province notes that in 1996, prior to his retention as an expert  
witness and before he was even aware of this proceeding, Dr. Prins was asked to  
critically evaluate the previous land claim submissions prepared on behalf of the  
Miawpukek Band. In evaluating the Aylred reference, Dr. Prins then held a  
different view of the ethnic identity of those involved:  
416  
John Downing, “A Breif Narrative concerning Newfoundland”, 1676 (CO 1/38), ff. 560-563  
[Province’s Historical Documents, vol. 6, CD 94].  
417  
The same.  
418  
Prins, Expert Report, p. 92.  
Page: 188  
As far as I know, these ‘Canida’ Indians are most likely Abenakis from  
Jesuit mission villages. Mi’kmaqs are seldom if ever referred to as  
‘Canada Indians’ [i.e., from Quebec Province] in English records.419  
[440] Also within his 1996 critique, in response to a suggestion that in 1768  
Captain Cartwright had identified “Canadians” as Mi’kmaq. Dr. Prins wrote:  
This is erroneous. In fact, Cartwright (p. 25) wrote in his journal: ‘The  
Mickmack Indians, who come from Cape Breton ... are also their  
implacable enemies.’ The term ‘Canadian’ did not apply to Mi’kmaqs.420  
[441] When confronted with this contradiction during cross-examination, Dr. Prins  
downplayed the role of his initial critique, characterizing it as merely raising “red  
flags.” The Province notes that in his introduction to the critique, however, Dr.  
Prins states that after he agreed to assist in the Conne River native rights case he  
employed the following procedure in evaluating the land claims submissions  
provided to him:  
I first prepared a 35-page ‘master’ document based on my own detailed  
Mi’kmaq ethnohistorical research note books; subsequently, I went  
through the submitted documents; as per request, I disputed or corrected  
factual errors, deflated undocumented assertions, critiqued  
interpretations, and challenged conclusions.  
In this undertaking, I based myself not only on the aforementioned  
notebooks about Mi’kmaq ethnohistory, but also on my personal library  
and my own recently published book The Mi’kmaq: Resistance,  
Accommodation, and Cultural Survival (Harcourt Brace, 1996).  
[442] During cross-examination Dr. Prins asserted, contrary to his 1996 critique,  
that the natives described in Aylred’s report were not likely Abenaki:  
[Dr. Prins]  
... It is highly unlikely that they would have been Abenakis  
Indians from refugee villages at this particular time; namely we  
speak here about 1661, right? So basically 1660's. It is  
extremely unlikely and I would like to go on record.  
[Burrage, Q.C.]  
I think we are referring to 1662, I think.  
419  
Harald Prins, “Mi’kmaq Territorial Claims in Newfoundland: Critical Review of Supporting  
Documents” (Report Prepared for the Miawpukek Band of Miawpukek Band of Mi’kmaq Indians, Conne River,  
Newfoundland, June/July 1996), p. 6 [Consent 152].  
420  
The same, p. 5. Dr. Prins testified that “their” in this context refers to Beothuk.  
Page: 189  
[Dr. Prins]  
Okay. It was extremely unlikely that this would involve  
Abenakis from Jesuit Mission villages in the province or  
at that time the territory of Canada.  
[443] The opinion expressed by Dr. von Gernet is more in keeping with that  
originally expressed by Dr. Prins in his 1996 critique:  
[Dr. von Gernet]  
... So I looked at this in some detail. And with respect to the first  
point, it should be kept in mind that when you look at the  
original handwritten version of this source, these Indians are not  
merely described as Canada Indians from a generalized  
geographic region known as Canada, but more specifically they  
are said to hail from the Fort of Canada. Now, I’ve seen one  
written version that has from the Fort of Canada. It’s possible  
that another written version had forts, plural, but either way,  
we’re not talking about a generalized region, we’re talking about  
forts in Canada. And this tends to swing the balance of  
probability to Quebec and the St. Lawrence valley.  
[The Court]  
So it’s not possible that it was ‘forêt’ that was being written  
there, is it?  
[Dr. von Gernet]  
Yes. I looked at – I’ve seen some people suggest that it was the  
forests of Canada. But I looked at the original handwriting. It’s  
clearly not forest, I’m certain of that. It’s fort, possibly forts.  
And it’s not port, either, which is the way the transcription reads.  
Now, with respect to the second point, Professor Prins doesn’t  
cite reasons why there could not have been Abenaki at Quebec in  
1661. And I indicate that there were Abenaki who were allied  
with the French against the Mohawk during the 1650s, so there  
was already an intimacy between the Abenaki and the French  
going back a decade earlier. And they begin appearing in French  
church records in Canada in 1662. So, there is, in fact, a French  
Abenaki connection in the St. Lawrence during this period.  
But what I find more intriguing is that when you look again at  
the original handwritten version, in my view, the date is not  
actually 1661. The date in the original handwritten version, the  
ones that I’ve seen, all point to 1676. And that’s the same year,  
of course, that John Downing wrote this, which makes sense,  
because John Downing wrote this late in the year in 1676. And  
the Irish merchant was apparently there, I believe sometime in  
June, in Plaissance.  
So if, in fact, the source is 1676, rather than 1661, by that time,  
of course, there’s no question whatsoever of a Abenaki French  
connection in the St. Lawrence. And these Abenaki were  
Page: 190  
frequently accompanying the French in their military adventures  
and in other campaigns. So, again, we should not so easily  
dismiss the Abenaki. And of course, we know that later during  
the Plaissance period Abenaki are known to have actually come  
to Plaissance. We have indisputable records of that.  
So again, my conclusion on this source is that, you know, look,  
they could have been Mi’kmaq, but they were not at all  
obviously so.  
7.  
The Province’s View of the Emergence of Conne River  
[444] The Province submits the emergence of Conne River as an identifiable  
community is a relatively recent event in the history of Newfoundland. In the  
Province’s view the Mi’kmaq in the late 18th century used temporary campsites in  
the Bay d’Espoir area as final stopover points on the developing overland trade  
route between the west coast of Newfoundland and the French islands of St. Pierre  
and Miquelon. By the middle of the 19th century what began as a temporary  
campsite at Conne River had developed into the permanent settlement which  
eventually became the modern Miawpukek Reserve, says the Province. The roots  
of the Mi’kmaq settlement, like many European settlements in the Bay d’Espoir  
area, on this view, extend back about two hundred years.421 This would make it a  
rather young community, especially when compared to other places near Bay  
d’Espoir, such as Hermitage and Harbour Breton (Havre Bertrand), which were  
first settled by the French as early as 1687 and continue to exist to this day.422  
[445] The Province suggests the Mi’kmaq temporarily left the Bay d’Espoir region  
of southeastern Newfoundland after being rebuffed by Palliser in 1766. However,  
they continued to visit the west coast of the Island to obtain furs which they then  
bartered with Europeans. While conducting a survey of the coast in 1767, Captain  
James Cook encountered “a Tribe of the Mickmack Indians” in Cape St. George.423  
421  
See Penney, Expert Report, pp. 141-146; see also Province of Newfoundland, Department of Mines,  
Agriculture and Resources, Crown Lands and Surveys Branch, Province of Newfoundland [map], scale 1:633,600  
(St. John’s: Department of Mines, Agriculture and Resources, 1962), filed as Consent 92.  
422  
See Thibaudeau, “Recensement,” p. 205 [Province’s Historical Documents, vol. 77, CD 959].  
423  
Copy of the Journal of the proceedings of His Majesty’s Brig the Grenville between the 3rd of March  
1767 and the 15th Novr. following (PRO, ADM 52/1263), p. 3 [Province’s Historical Documents, vol. 49, t 49, CD  
687].  
Page: 191  
By the time John Cartwright explored the region in 1767-1768, the Mi’kmaq were  
familiar with the hinterland of the west coast, the Upper Humber River, Grand  
Lake and perhaps the western end of Red Indian Lake. The Province argues it was  
from their temporary base camps on the Island’s west coast, particularly the areas  
around Cape Ray, Codroy, Cape Anguille, St. George’s Bay, Point Riche, Ferolle,  
and Port au Choix, that the Mi’kmaq were able to traverse the interior to Bay  
d’Espoir and eventually settle at Conne River.  
[446] Dr. von Gernet stated that very little is known about what transpired on the  
southeast coast between 1763 and 1783.424 There are only a few sporadic  
references to Mi’kmaq people travelling to St. Pierre and Miquelon during this  
murky period of Newfoundland history. In 1769 Baron de l’Espérance noted that a  
shallop of “sauvages mich mach” had stopped off at St. Pierre on the pretext of  
inquiring about the King’s health and to assure him of their continued fidelity to  
France.425 A similar incident was also noted nine years later:  
A family of sauvages from île Royale, composed of seven persons, came  
to St. Pierre with a shallop. The object of their voyage was to be  
informed of the health of the King of France their father, under whose  
domination they wished to return. This family, during their stay, gave  
proof of catholicity. The administrators helped by providing them with  
food in order to put them in a fit state to return to their home.426  
[447] The Defendants point out that there are Mi’kmaq mentioned in the Parish  
Registers of St. Pierre and Miquelon between 1764 and 1783. They refer  
specifically to a baptismal record at Miquelon dated August 18, 1778 which  
describes Jeanne Heli as a Mi’kmaq Indian who was born at “Bay des Esperes” and  
whose parents and godparents are actually residing at “Bay des Esperes”. The  
Province says this is not at all surprising because Mi’kmaq people did frequently  
travel to the French islands during the late 1700's to engage in trade and to avail  
themselves of the services of the local priest. The Province submits the Heli child  
424  
von Gernet, Expert Report, p. 201.  
425  
Letter from Baron de l’Espérance to the Minister, September 15, 1769 (France: Archives nationales de  
France, Colonies C12/3), ff. 49-49v [Province’s Historical Documents, vol. 51, CD 730].  
426  
Extracts from various letters of Messrs. the Baron de l’Espérance and Beaudeduiel, February 20, 1778  
(France: Archives nationales de France, Colonies C12/5, no. 21), ff. 19-22v [Province’s Historical Documents, vol.  
53, CD 766].  
Page: 192  
was probably born at a temporary campsite in Bay d’Espoir during one of the  
family’s excursions to the southeast coast of Newfoundland.  
[448] The Province attributes more significance to a 1784 report that a group of 80  
Mi’kmaq arrived at St. Pierre where they received gifts of guns, ammunition, food,  
tobacco, axes, rope, yarn, pitch, nails, canvas for sails, compasses and other  
necessities from the French. They also informed local officials of their intention to  
settle nearby in the Bay d’Espoir area. The Governor, Baron de l’Espérance,  
together with the Financial Commissary, Malherbe, wrote to the Minister about the  
arrival of these Mi’kmaq settlers:  
Your Lordship, We have the honour to address to you herewith a  
statement of the presents that M. the Baron de l’Espérance considered  
suitable for distribution to the sauvages who inhabit the vicinity of île  
Royale. These sauvages, numbering 80 persons, men, women and  
children, went first to Miquleon where a contrary wind forced them to  
land. Their plan was for all of them to come here [to Saint-Pierre]  
subsequently, but they were unable to do so because they were informed  
that there were several children infected with smallpox. Since they  
feared this disease very much, they resolved to detach 15 from the group,  
12 men and 3 women. They were taken care of both here and on  
Miquelon, and after a three-week stay they left, very happy with their  
presents. They added that to give evidence more and more of their  
attachment to France, they were proposing to settle at Baie de Désespoir  
in order to be more within reach of coming to visit us more often. We  
beg you to be so kind as to approve our conduct in this matter.  
[Emphasis added.]427  
[449] The Province submits here is confirmation from the Mi’kmaq themselves  
that their interest in Bay d’Espoir was not motivated by a traditional subsistence  
quest, but by a desire to be close to the French. The only reasonable conclusion,  
says the Province, is that the Mi’kmaq presence in southern Newfoundland is  
inextricably linked to the French presence at St. Pierre and Miquelon.  
[450] In 1788 Captain Reynolds wrote a report entitled, “Report of Native and  
Foreign Indians who visited at the undermentioned places within the French  
Limits, in the year 1788". According to this report, Reynolds had entered many  
427  
Letter from the Baron de l’Espérance and M. Malherbe to the Minister, enclosing a statement dated  
August 16, 1784 of the presents given by the Baron de l’Espérance to the sauvages from the vicinity of île Royale,  
August 20, 1784 (France: Archives nationales de France, Colonies C12/8), ff. 72v-73 [Province’s Historical  
Documents, vol. 54, CD 788].  
Page: 193  
ports but heard nothing of the native Indians. However, under the category  
“Foreign Indians”, he recorded 30 Mi’kmaq families from “Halifax”, at St.  
George’s Bay, whose trade was confined to the French.428 Reynolds drew a clear  
distinction between the native population of Newfoundland and the Mi’kmaq, who  
he considered to be from Nova Scotia.  
[451] The British regained St. Pierre and Miquelon in 1793 and maintained control  
of the islands until they were finally handed back to the French in 1814. During  
this period of British control Major Peregrine F. Thorne observed that the Mi’kmaq  
were cautiously avoiding the English settlements, but they carried on “a  
considerable Trade” with the French.429 Thorne, like Reynolds, was also of the  
opinion that the Indians who visited the various bays were not indigenous to  
Newfoundland, but hailed originally from Cape Breton. In 1793 he wrote:  
The Tribe of Indians whic[h] visit the Bay of Isles, St. Georges and  
Despoir Bay are the Mickmacks who are in some measure civilised, but  
these are not the Aborigines, being originally from Cape Briten, I  
understand there is another Tribe to the North West, which are suppose to  
be the [so]; These Indians have an Inveteracy to the Esquemaux and  
Labradore Indians, if any of them come over to Newfoundland they give  
them Battle. – I have employed a Woodman who lives on the isle of  
Ram[ea] to endeavour to get at some of these Indians and to assure the  
Chief that if they will visit me they will receive the kindest Treatment  
should this happen, I presume my giving them a few Articles, such as  
Powder, Bull[ets] &c. will not be deemed wrong.430  
[452] He expressed a similar view a year later when a group of Mi’kmaq people  
arrived in St. Pierre in search of a priest:  
I have lately had a visit from two Indian Familys Eleven in Number, they  
came here to have their Children Baptized by the Priest, They had been  
informed last year by some Americans and French, that we should treat  
them Ill. I have given them Powder &c, and have sent them away  
428  
Reynolds, “Report of Native and Foreign Indians who visited at the undermentioned places within the  
French Limits, in the year 1788" (CO 194/38), ff. 53v-54 and (CO 194/21), ff. 171v-172 [Province’s Historical  
Documents, vol. 54, CD 794].  
429  
Letter from Peregrine Thorne to John Sullivan, June 25, 1793 (CO 194/43), f. 263 [Province’s  
Historical Documents, vol. 55, CD 804].  
430  
The same, f. 263v.  
Page: 194  
perfectly satisfied and convinced of the Contrary I understand there is  
about 150 of them Micmacks, who chiefly reside at the Head of The Bay  
of St. George Newfoundland, They inform me the Americans usually  
visit them early in June to get Furs but distrust them; and the two or three  
English Families which are there in their Fishery for Salmen confirmed  
to me the Idea, that there are Indians in the Interior of Newfoundland.  
An Englishman/Dennis/from Dorchester, came out with them, at the great  
age of 104, has resided in Newfoundland upwards of 80 Years, he [dined]  
with me, and I found he had his Faculties perfect, except his Sight  
imparoed.431  
[453] Captain Ambrose Crofton, of the Pluto, gathered additional details about the  
Mi’kmaq presence during his visit to the west coast of Newfoundland in 1797. He  
did not report any inhabitants until he reached St. George’s Bay at the end of  
August:  
Being arrived near St. George’s Bay and having heard of the Foreign  
Indians, viz those from Nova Scotia and Isle of Cape Britton resorting to  
St. George’s Harbour, the head of that Bay, it therefore become a  
necessary object, particularly as St. George’s Bay was mentioned in your  
Orders, I therefore worked to windward up the Bay and anchored in St.  
George’s Harbour on the 29th: of August [and] remaind two days. on  
exploring the Harbour, which is very spacious, I found the Inhabitants  
consisted of but two Small Families, who had been there many years, and  
were in a wretched state, not having any establishments for carrying on  
the Cod fishery although very convenient to them, and seemed to depend  
on the Salmon fishery for their principal support, which they carry  
annually to Harbour Britton and there receive Cloathing and some  
Provisions in return.  
From these people I was informed that the Foreign Indians always remain  
near to this Harbour during the Winter; that their principal motive, is on  
account of the great quantity of Eels that are found in Flat Bay near St.  
George’s Harbour, and all along the South Shore from Cape Anguille.  
These Indians have always been on an amicable Footing with the two  
families alluded to and travel over land with their Furs annually to  
Fortune Bay, of the Bay of Despair, where they receive Powder, Shot and  
Blanketing in lieu of their Furs, which I find has been very trifling owing  
to their indolence. The greater part of them having removed from Cape  
Britton in consequence of being informed that Deer was more abundant  
in Newfoundland.  
431  
Letter from Peregrine Thorne to Henry Dundas, May 26, 1794 (CO 194/41), f. 81 [Province’s Historical  
Documents, vol. 56, CD 806].  
Page: 195  
I understand their total number does not exceed One Hundred, and that  
its Ten years since they established themselves in St. George’s Bay: they  
speak French, and profess the Roman Catholic Religion. When the  
French were at Newfoundland those Indians always carried their furs to  
them in preference to trading with the British Merchants, consequently  
they cannot be considered any great acquisition to this country.432  
[454] The Province suggests other sources indicate that the Mi’kmaq had an  
occasional presence in St. George’s Bay since the 1760's;433 and that, therefore,  
Crofton’s allusion to the Mi’kmaq establishing themselves at St. George’s Bay  
around 1787 may be referring to a more permanent base camp.  
[455] Crofton’s description of Mi’kmaq travelling overland from St. George’s Bay  
to Bay d’Espoir is significant for two reasons, says the Province, first, it offers  
additional support for the assertion that Mi’kmaq motivations for moving to  
Newfoundland had more to do with the presence of Europeans than continuing  
with an alleged traditional pre-contact foraging pattern;434 and, secondly, the  
transportation of furs overland provided the Mi’kmaq with a detailed knowledge of  
the Island’s interior. In Dr. von Gernet’s words:  
By the last decade of the eighteenth century, a knowledge of the interior  
as accessed from St. George’s Bay had combined with knowledge of the  
interior obtained by sailing up Bay d’Espoir. The weight of evidence  
suggests that it was during this period, two and a half to three centuries  
after their first contact with Europeans, that much of Newfoundland’s  
interior between these two bays become known to the Mi’kmaq.435  
432  
Letter from Ambrose Crofton to Captain William Waldegrave, January 10, 1798 (CO 194/40), ff. 19-20  
[Province’s Historical Documents, vol. 56, CD 820].  
433  
See Copy of administrative report (extract) by Captain Samuel Thompson to Admiralty, 1763  
(Greenwich: National Maritime Museum, Graves Papers/105), f. [46] [Province’s Historical Documents, vol. 35, CD  
504]; Samuel Thompson, Answers to the Queries of the Board of Trade, 1763 (Greenwich: National Maritime  
Museum, Graves Papers/105), f. 46 [Province’s Historical Documents, vol. 35, CD 505]; and, Letter from Samuel  
Thompson to Admiralty Secretary, Philip Stephens, April 16, 1764 (CO 217/20), f. 320 [Province’s Historical  
Documents, vol. 40, CD 546].  
434  
For example, Newman and Hunt Company’s Little Bay Ledger, 1790-1791 (MG 482,B-3-1, Reel E8),  
p. 2 [Province’s Historical Documents, vol. 89, CD 1009] indicates that there were a few Indians among the  
numerous settlers who were trading furs at Little Bay (on Long Island separating Bay d’Espoir from Hermitage  
Bay).  
435  
von Gernet, Expert Report, p. 206.  
Page: 196  
[456] The Province suggests it was inevitable that the Mi’kmaq expansion into the  
interior of the Island would lead to encounters with the Beothuk. Unfortunately,  
contact between the two groups was not always friendly. By the late 1700's  
hostilities with the Beothuk were perceived to be such a problem that  
Newfoundland governors began issuing proclamations for their protection. These  
proclamations invariably drew a distinction between the Mi’kmaq and the native  
Indians of the Island. For example, in 1810 Governor Duckworth issued a  
proclamation to “the Micmacs, the Esquimaux, and other American [i.e., mainland]  
Indians frequenting the said Island” encouraging these various mainlanders to live  
in peace with the “native Indians of this Island”.436  
[457] During the summer of 1810 the British Governor commissioned William  
Parker to investigate the conduct of the Cape Breton Mi’kmaq in Newfoundland.  
The Province suggests Parker’s subsequent report to Governor Duckworth provides  
a great deal of insight into the extent of Mi’kmaq resource extraction and their  
rather difficult relations with other groups inhabiting the Island. He wrote:  
I have made the strictest enquiries respecting the general conduct of the  
Canadian or Cape Breton Indians, and I have not failed to avail myself of  
every possible opportunity to gain information on that head. I am of  
opinion that they decidedly do the greatest possible mischief to the  
Fishermen and Merchants of Newfoundland in a variety of ways and that  
their Trafic instead of compensating for such injuries rather adds to the  
evil. They are in number between two and three hundred and commonly  
rendezvous in the Bay of Despair; Sometimes in the Winter Months if  
they fall short of provisions & other necessaries, they have been known  
to get supplied of some of the poor Planters rather tumultuously;  
obligating them to sell what they want themselves, perhaps run in debt,  
and never reimburse them for what they parted with so much against their  
will. From every three to seven years they go to the Island of Cape  
Breton to obtain absolution, and [?] the Priests forgive them their debts as  
well as their Sins; by reason of which many of the Planters and  
Merchants are sufferers. They destroy all sorts of Animals without the  
least regard to the proper times and seasons, consequently vast quantities  
of their fur are of little use being killed too soon and what is worse they  
destroy the Animals when with young, thereby reducing the natural stock  
without advantage. The Deer in some places herd together by thousands  
and every year in the latter end of April or beginning of May, a herd of  
436  
Proclamation “To the Micmacs, the Esquimaux, and other American Indians frequenting the said  
island”, August 1, 1810 (MG 24, A45, vol. 1), pp. 111v-112 [Province’s Historical Documents, vol. 58, CD 867].  
See also letter from Duckworth regarding treatment of natives at Newfoundland, August 1, 1810 (GN 2/1/A), ff.  
104-106 [Province’s Historical Documents, vol. 58 CD 868].  
Page: 197  
them cross the Bay of Despair; on the ice if they are in time; but if it be  
broken they will take to the water. It happened last year that they Swam  
over and these Indians with their Canoes surrounded them, and most  
wantonly wounded as many as a thousand so that some could but just  
reach the landwash where they died, and many could not; the whole place  
for weeks afterwards stunk of their Carcasses and very many floated past  
the harbours. I have also been informed that they have gone to the  
Penguin Islands and killed thousands of birds and left them to rot in piles  
that they might get their feathers with less trouble. They always takes as  
much money as they can collect from Newfoundland with them to Cape  
Breton for the Priests and return with fresh Zest to recommence their  
devastations. It appears clear from this statement that the Planters and  
Merchants of Newfoundland are considerable Sufferers as the Indians by  
destroying everything they come near prevent the Inhabitants from  
killing in due season what would be so much for their benefit; when  
probably there would not be then that danger of annihilating the Species.  
It is also a fact that these Indians are at open War with the Aborigines  
and kill them whenever they can: which puts it past doubt that they are a  
great cause of the difficulty we experience in establishing any  
communication with them.437  
[458] Parker’s report is an important reminder, says the Province, that aboriginal  
hunters were not the only ones utilizing the Island’s interior resources. European  
settlers built winter houses and practised a form of non-pastoral transhumance  
which involved collecting wood, hunting and trapping. Indeed, anthropologist  
Philip Smith considered Newfoundland to be an exception to the normal colonial  
settlement pattern:  
Probably the most extreme case of departure or deflection from the  
‘typical’ European pattern occurred in colonial Newfoundland, where it  
existed from at least the early 18th until the 20th century. Here the settlers  
in much of the island practised a system of dual residence based on  
seasonal aggregation and dispersal along a summer-winter axis.  
Specifically, the settlers resided for part of the year in the nucleated  
coastal fishing villages (“outports” in the local vocabulary) and wintered  
in dispersed groupings in nearby or distant forests. The seasonal  
migrations were family rather than individual movements, and in many  
cases the entire community or at least the majority of the residents of the  
outport moved into the woods for up to half of each year. This is indeed  
a remarkable deviation from the ancestral pattern in the British Isles from  
437  
Letter from Parker to John T. Duckworth, September 28, 1810 (MG 24, A45), pp. 4684-4687  
[Province’s Historical Documents, vol. 58, CD 871].  
Page: 198  
which most of the settlers had come and one that has few, if any,  
equivalents on other continents colonized by Europeans.438  
[459] This relationship between Europeans and aboriginals was also observed by  
Edward Wix, a Protestant missionary and Archdeacon of Newfoundland, who  
visited Hermitage Bay in 1830. He noted:  
The influx of Canadian Micmac Indians who, by the progress of  
cultivation, have been driven from their own hunting and fishing grounds  
& have taken refuge in search of game in the woods & barrens of  
Newfoundland is said by the inhabitants hereabouts to have had a  
sensible effect upon the game, & have impoverished the Europea settlers  
who depended upon the furs, upon the hunting & lake- & river- fishing  
for their subsistence.439  
[460] The Province submits this observation makes it clear that the Mi’kmaq were  
still perceived as newcomers who were infringing on hunting areas that European  
settlers had been utilizing. According to Dr. von Gernet this is, “a curious situation  
in which a migratory Aboriginal people were coming to extract resources in an area  
used by a localized European settler population engaged in seasonal  
transhumance.”440 Similarly, Philip Smith remarked:  
That European settlers should perceive their traditional foraging  
livelihood threatened by recently arrived aborigines who competed with  
them for the same natural resources is an extraordinary reversal of roles,  
perhaps without equivalent in North America or even elsewhere in the  
colonial world.441  
[461] In Dr. von Gernet’s opinion the documentary evidence from this period leads  
to two inescapable conclusions: (1) the resource extraction activities of the  
Mi’kmaq who gathered at Bay d’Espoir had a significant impact on the fur and  
hide bearing animal populations; and, (2) the Mi’kmaq competed with the  
European settlers for the same interior resources. Indeed, says the Province, the  
type of market hunting practised by the Mi’kmaq during the post-contact period  
438  
Smith, “Transhumant,” p. 242 [von Gernet Supporting Documents, vol. 45, Tab 380].  
439  
The same, p. 248.  
440  
von Gernet, Expert Report, p. 217.  
441  
Smith, “Transhumant,” p. 248 [von Gernet Supporting Documents, vol. 45, Tab 380].  
Page: 199  
was very likely the cause of the rapid penetration of the interior from the landfalls  
at the heads of St. George’s Bay and Bay d’Espoir. Competition from the English  
and other furriers of European heritage in the proximal interior probably  
contributed to the Mi’kmaq expansion into the distal interior. This, in turn,  
contributed to an increased concern for the Beothuk and prompted the Governors to  
issue proclamations for their protection.  
[462] In the early 19th century government officials continued to express concern  
about the growing Mi’kmaq presence and how it was affecting the Island’s  
indigenous population. In 1815 Governor Richard Keats informed the Earl of  
Bathurst that:  
Some years ago, the Micmac Indians formed a settlement in St. George’s  
Bay on the West Coast of Newfoundland which is thriving and  
industrious. The success of this Settlement has probably induced others  
to follow them; and latterly they have come over in more considerable  
numbers, punctuated into the Country and shown themselves the present  
Season on the Eastern Coasts of Newfoundland. It is to be feared the  
arrival of these New Comers will prove fatal to the Native Indians of the  
Island, whose arms are the bow, with whom their Tribe as well as the  
Esquimaux are at War, and whose number it is believed has for some  
years past, not exceeded a few hundreds.442  
[463] Apparently, the Cape Breton Mi’kmaq were not the only aboriginal  
newcomers to the Island. In 1819 Governor Charles Hamilton asked a clergyman  
at Twillingate to warn the “Micmac, Esquimaux and other Indians frequenting the  
Northern parts of this Island” not to harass the “Native Indians” or they would be  
punished and “prevented from resorting to the Island again”.443 A French  
Commodore’s report from the early 1820's also indicates that there are three  
different groups of Indians at Codroy Island, Bay St. George and the Bay of Islands  
area: the Mi’kmaq from Cape Breton, the Montagnais from Labrador, and the “red  
savages” of the interior with whom there was no communication. The report reads:  
There are on Codroy Island, in Bay St. George’s and in the Bay of  
Islands, three kinds of Indian, called Micmacs and Montagnais [the third  
being “red savages” of the interior with whom there was no  
communication]. They have gathered together and form a population of  
442  
Report by Keats to Earl of Bathurst and Board of Trade, November 10, 1815 (CO 194/56), ff. 109v-110  
[Province’s Historical Documents, vol. 59, CD 884].  
443  
Letter from Hamilton to John Leigh, May 31, 1819 (PANL GN 2/1/a, vol. 30), f. 149 [Province’s  
Historical Documents, vol. 60, CD 892].  
Page: 200  
80 to 90 individuals. The former are from Cape Breton and the latter  
from Labrador, they sell their furs to the English inhabitants of St.  
George’s who, in exchange, give them basic essentials at a very high  
price, and treat them quite badly; they scarcely allow them to fish for  
salmon. These savages are all Catholic, are very devoted to the French  
and some of them are the sons of Basque sailors who fish in these parts.  
One of our former seamen by the name of Benoit married a savage  
woman with whom he has nine children... I repeat again, these Indians  
seem most attached to the French and if the latter were one day to be  
allowed to form settlements in Newfoundland, they could be even more  
useful, since a greater number of them would come over from Cape  
Breton, with which they have frequent contact.444  
[464] Newfoundland’s attraction appeared to be the same for both the Mi’kmaq  
and the other aboriginal groups. In 1822 William Epps Cormack met a Montagnais  
named James John who claimed that he came to Newfoundland in the previous  
year because he heard that “it was a better hunting country than his own”.445  
Cormack repeatedly states in his journal that the principal reason for the Indians  
being in the interior was for the procurement of furs which were then brought to  
the coast for trade with the Europeans. Based on his personal observations and  
conversations with informants, Cormack was also able to estimate the population  
of the various aboriginal groups on the island. He wrote:  
All the Indians in the Island, exclusive of the Red Indians [Beothuk],  
amount to nearly a hundred and fifty, dispersed in bands, commonly at  
the following places or districts: St. George’s Harbour and Great Codroy  
River on the west coast; White Bear Bay and the Bay of Despair on the  
south coast; Clode Sound in Bonavista Bay on the east; Gander Bay on  
the north coast; and occasionally at Bonne Bay and the Bay of Islands on  
the north-west coast. They are composed of Micmacs, joined by some of  
the mountaineer [Montagnais or Innu] tribe from the Labrador, and a few  
of the Abnakis from Canada. The Esquimaux, from Labrador,  
occasionally, but seldom, visit the Island. There are twenty-seven or  
twenty-eight families altogether, averaging five to each family, and five  
or six single men. They all follow the same mode of life, hunting in the  
interior, from the middle of summer to the beginning of winter in single  
families, or two or three families together. They go from lake to lake,  
hunting all over the country, working round one before they proceed to  
the next. They paddle along the borders, and the men proceed on foot up  
444  
Michael Wilkshire and Gerald Penney, “Five Micmac Photographs,” The Newfoundland Quarterly 86,  
no. 3 (1990), p. 15 [von Gernet Supporting Documents, vol. 54, Tab 473].  
445  
William Epps Cormack, Narrative of a Journey Across the Island of Newfoundland in 1822, ed. F.A.  
Burton (London: Longman’s, Green and Co., 1928), p. 57 [Province’s Historical Documents, vol. 61, CD 899].  
Page: 201  
every rivulet, brook, and rill, beavers being their primary object of  
search, as well as otters, martens, musk-rats, and every living thing;  
secondly, when the lakes are connected by rivers, or when the portages  
between them are short, they proceed in their canoes, or carry them with  
them; otherwise they leave these, and build others on arriving at their  
destination. The hunting season, which is in the months of September  
and October, being over, they repair to the sea-coast with their furs, and  
barter them for ammunition, clothing, tea, rum, etc.; and then most of  
them retire to spend the winter at or near the mouths of the larger rivers,  
where eels are to be procured through the ice by spearing, endeavouring  
at the same time to gain access to the winter paths of the deer.446  
[465] The Province notes that Cormack’s numbers are in general accordance with  
the previously cited French Commodore’s report. His description also indicates  
that the Mi’kmaq were then still following a seasonal migration pattern which  
included forays to the Bay d’Espoir area.  
[466] Having said this, there was no indication of a permanent Mi’kmaq settlement  
when the Wesleyan missionary, Simeon Noall, visited the Bay d’Espoir area in  
1827. He reported that he was:  
...informed by those who know their habits well, that the Indians  
belonging to Bay Despair (of whom there are eighteen families, and  
about a hundred persons) are still under the bondage of the vilest habits;  
very indolent and false in their dealings; and there is too much reason to  
fear that they murder a great many of the Aborigines, or Red Indians,  
who inhabit the interior. After all, I think them an interesting race of  
men, and who, if they could be properly instructed, might emerge from  
that darkness in which they are now enveloped. At present they are only  
the dupes of those priests by whom they have been baptized, but never  
instructed. Although they are bound together by some social order, and  
have a sort of cantonment, or rather rendezvous in Bay-Despair, yet they  
enjoy very few of the comforts of civilized life. They spend the summer  
chiefly in the woods, procuring fur; and, in the winter, from want of  
economy, have sometimes to endure the severity of hunger. It is  
impossible to calculate on the advantages that might follow, could their  
conversion be effected. It would at once open a religious intercourse  
between much greater numbers at White-Bear Bay; and is perhaps the  
only possible way of gaining access to the Aborigines of this island, of  
whom, notwithstanding what has been said to the contrary, it appears  
great numbers still exist.447  
446  
The same, pp. 66-67.  
447  
Philip Tocque, Newfoundland: As it Was, and As it Is in 1877 (Toronto: John B. Magurn, 1878), pp.  
200-201 [von Gernet, Supporting Documents, vol. 47, Tab 424].  
Page: 202  
[467] The first description of a Mi’kmaq campsite in the vicinity of the modern  
Miawpukek Reserve comes from Bishop Michael Fleming, who visited Bay  
d’Espoir in the summer of 1835. He wrote:  
We passed along the coast of the charming Isle du Bois; and sailing by  
the mouth of Little River, at length came in sight of the Indian wigwams  
at the entrance of Conne River early in the day. These present a singular  
appearance to the stranger. Imagine to yourself a large collection of tents  
irregularly disposed, constructed of long straight poles struck in the  
ground and coming together at the top, tied with birch fastenings, and the  
whole kept in a circular form by means of hoops within and covered with  
the bark of trees. At the entrance of the river a high sand-bank runs  
across, leaving barely room for a vessel to enter the pond or basin within  
[the gut], and upon this peninsular bank are those conical tents or  
wigwams disposed.448  
[468] The Mi’kmaq heard that a priest would visit and anxiously awaited  
Fleming’s arrival. Fleming instructed them, said Mass, heard their confessions and  
“eventually we confirmed most of them, the others having been confirmed 20 years  
ago in [Lower] Canada.”449  
[469] These Mi’kmaq were devout Catholics who observed the Sabbath, routinely  
sang Kyrie Eleison and offered the rosary. According to Fleming they also had  
prayer books written in their own language and the hymns and principal psalms set  
to music.  
[470] The Conne River campsite described by Fleming was not yet a permanent  
settlement, but the winter rendezvous point for a band that otherwise dispersed  
further into the interior where small family groups trapped furbearing animals.450  
Furthermore, his observation that some of those encountered were confirmed 20  
years earlier in Canada takes us back to 1815 when, submits the Province, the  
448  
See von Gernet, Expert Report, p. 219.  
449  
Codignola, “Documents,” p. 32 [Prins Supporting Documents, vol. 14, Tab 10]. But see Doug Jackson,  
On the Country: the Micmac of Newfoundland, ed., Gerald Penney (St. John’s: Harry Cuff Publications, 1993), p.  
113 [von Gernet Supporting Documents, vol. 20, Tab 192] which states that the others were “confirmed fifty years  
ago in Canada”. This appears to be a mistranslation of the original document which indicates that they were  
confirmed “20 years ago”.  
450  
von Gernet, Expert Report, p. 219.  
Page: 203  
original party of Mi’kmaq arrived in this region. This date corresponds with other  
evidence from the French records at St. Pierre and Miquelon.  
[471] The Province accepts that by the close of the 18th century the Mi’kmaq were  
visiting the southwest coast and had gained familiarity with the interior, including  
the Bay d’Espoir area, and by 1835 there is evidence of a seasonal Mi’kmaq  
encampment in the environs of what is now the Miawpukek Reserve. The Province  
contends the only reasonable view of the evidence is that the Mi’kmaq are, like  
Europeans, relatively recent immigrants to the area. The Province refers to reports  
showing that, until very recently, many Mi’kmaq readily admitted this fact  
themselves.  
[472] In 1839 Joseph Jukes, the Geological Surveyor of Newfoundland, visited St.  
George’s Bay where he met a Mi’kmaq named Sulleon who agreed to guide him to  
Grand Lake. Jukes had this to say about the antiquity of the Newfoundland  
Mi’kmaq:  
At the beginning of the last century a body of Mic Mac Indians, partly  
civilized and converted to the Roman Catholic faith, either came or were  
sent from Nova Scotia, and settled in the western part of Newfoundland.  
These were armed with guns and hunted the country, making great havoc  
amongst the game. A quarrel soon arose - perhaps on this account -  
between them and the Red Indians; and Sulleon gave me a confused  
account of a battle that took place between them at the north end of the  
Grand Pond about seventy years ago. In this the Red Indians were  
defeated, as they were armed only with bows and arrows, and, according  
to Sulleon’s statement, every man, woman, and child was put to death.451  
[473] During the first decade of the 20th century, English naturalist, J.G. Millais,  
also made several expeditions to the interior of Newfoundland with the assistance  
of Mi’kmaq guides. While he rejected the notion that the Mi’kmaq were brought  
over to exterminate the Beothuk, he understood that they “first arrived in  
451  
J.B. Jukes, Excursions in and About Newfoundland During the Years 1839 and 1840, vol. 1 (London:  
John Murray, 1842), p. 172 [Province’s Historical Documents, vol. 62, CD 908].  
Page: 204  
Newfoundland about the middle of the eighteenth century” and, even as late as  
1907, they still considered Cape Breton as “their home.”452  
[474] Millais went on to describe the seasonal round as it then stood. February to  
April was spent in their houses, “eating dried fish, smoked caribou flesh, together  
with such civilized commodities as flour, bacon, tea, coffee, and sugar, which they  
either exchange for furs with the Gaultois and Pushthrough merchants or purchase  
with their fur money.” In April some went logging, while May to early August was  
spent fishing in the bays, creeks, and rivers. In August and September “regular  
hunters” walked to their “tilts” in the interior where they hunted caribou and bear.  
In October they set traps throughout much of central Newfoundland, so that “a  
man could not go for twenty miles without having his dog killed or caught by the  
foot”. These traps were subsequently visited and reset several times during the  
winter. A caribou hunt took place in February and then work in the interior was  
closed for the year.453 While the Mi’kmaq were no longer trapping furs in the  
interior during the summer months and living in coastal encampments in the winter  
as they had a century earlier, it remains clear that trapping continued to be a major  
occupation. Indeed, as Millais noted about his guide, Joe Jeddore:  
‘Furring’ was his sole means of livelihood, and as he had first found the  
hunting-ground and could get no other if it were spoilt, he naturally was  
incensed at the incursion of white men whose business, he considered,  
was amongst the ships. ‘The coast is the white man’s; the woods are  
ours,’ is the Micmacs’ motto.454  
[475] As Dr. Prins observed, the traditional economy of the Mi’kmaq was oriented  
toward Maritime resources thereby requiring them to spend much of the year along  
the coast.455 Indeed, what was integral to the distinctive culture of the Mi’kmaq at  
the time of European contact, says the Province, was their Maritime adaptation and  
452  
Millais, Newfoundland and its Untrodden Ways, (Arno Press Reprint, 1967) pp. 217-218 [Province’s  
Historical Documents, vol. 67, CD 933].  
453  
The same, pp. 219-221.  
454  
The same, p. 227.  
455  
Prins, The Mi’kmaq: Resistance, note 122 above, p. 27.  
Page: 205  
not the trapping of furs for a market economy.456 Therefore, the “Micmacs’ motto”  
and the description of the Mi’kmaq as having “their backs towards the sea”, while  
appropriate for the Mi’kmaq of 19th century Newfoundland, are hardly reflective of  
their traditional pre-contact mode of subsistence, in the Province’s view.  
[476] During a visit to Conne River in 1908, Sir William MacGregor, the  
Governor of Newfoundland, recorded the presence of 130 people, comprising 23  
families, living in the community. MacGregor wrote that he,  
...saw one woman of ninety years of age, Sarah Aseleka, perhaps the only  
Micmac of pure blood in the settlement. She was born at Bay St. George,  
and came to Bay d’Espoir some three score of years ago when the  
Micmacs first settled in this bay.457  
[477] The Province submits here is an aboriginal voice confirming the arrival of  
the Mi’kmaq in Bay d’Espoir from Bay St. George, which does, in fact, correspond  
with the information provided in other historical sources. “Three score of years”  
ago would place the emergence of Conne River as a community around 1848.  
Indeed, the 1836 census return does not include any entries for Bay d’Espoir or  
Conne River, but the 1857 census records 55 Indians in Bay d’Espoir458 and the  
1869 census records 88 Indians specifically at Conne River.459 The Province notes,  
these early census returns do not identify the ethnicity of these “Indians” so one  
can only assume that they were Mi’kmaq.460 Although we know that there was at  
456  
von Gernet, Expert Report, p. 232.  
457  
“Newfoundland: Report by the Governor on a visit to the Micmac Indians at Bay d’Espoir”, p. 4  
[Province’s Historical Documents, vol. 68, CD 937].  
458  
Abstract Census and Return of the Population of Newfoundland, 1857 [St. John’s: Queen’s Printer,  
1858], p. 96 [Province’s Historical Documents, vol. 83, CD 982]. The miscellaneous notes for the Bay Despair  
entry states that, “The Indians do not fish, except to spear for Salmon and Eels for the supply of their temporary  
wants, but derive their subsistence chiefly from the chase. During the winter they frequently employ themselves  
making hoops, and in the spring they strip off and cure a large quantity of birch rinds, which they readily exchange  
at the Merchant’s store for bread, clothing, ammunition, &c.”  
459  
Abstract Census and Return of the Population, &c. of Newfoundland 1869 (St. John’s: Robert Winton,  
Printer, 1870), Fortune Bay Electoral District [Province’s Historical Documents, vol. 83, CD 983].  
460  
Gale Warren, “Census Reports for Newfoundland” (St. John’s: Legal Information Management,  
Department of Justice, Government of Newfoundland and Labrador, 2000), p. 1 [Province’s Historical Documents,  
vol. 83, CD 978] indicates that the 1921 nominal census was the first time that enumerators specifically asked if the  
individual being questioned was Mi’kmaq.  
Page: 206  
least a temporary encampment in the area prior to the 19th century, it appears that  
1848 may well reflect the date that the Mi’kmaq settled permanently in the region,  
says the Province.  
[478] The Province notes this timing is in remarkable accordance with a report by  
Reverend St. Croix, a parish priest who served in Conne River during the first half  
of the 20th century. Father St. Croix stated that there are no records of the Mi’kmaq  
at Conne River prior to 1800 and that the first Chief, Maurice Lewis, came to  
Conne River some time between 1815 and 1860.461  
[479] Following his 1908 visit to Conne River, Governor MacGregor stated that  
the Conne River Mi’kmaq “have claims on Newfoundland by right of a century of  
Micmac occupation, and by virtue of the European blood that probably each one of  
them has inherited.”462 He understood that their rights flowed, not necessarily from  
being an indigenous people, but from being squatters on Crown land. While  
MacGregor considered the Mi’kmaq to be a special population, in his view their  
rights did not differ from those of non-aboriginal squatters in Newfoundland.  
[480] The Province notes that, although they had a formal settlement at Conne  
River, which to this day serves as the focal point of Mi’kmaq culture in  
Newfoundland, the Mi’kmaq people did not confine themselves to the Bay  
d’Espoir area. By the turn of the century, the fur trade was no longer a viable  
source of income, so the Mi’kmaq, much like their 16th century ancestors who  
encountered Europeans for the first time, opted to embrace the changing economic  
realities of the 20th century. For some Conne River Mi’kmaq, this meant moving to  
predominantly white interior communities, such as Glenwood, to take advantage of  
new employment opportunities in the sawmill and with the railway.  
[481] The travel literature from the 19th and early 20th centuries have several  
themes which illuminate the significance of the Mi’kmaq presence in  
Newfoundland. These themes, as confirmed by Gerald Penney, are as follows:  
461  
Stanley St. Croix, “The Micmacs of Newfoundland,” in The Book of Newfoundland, vol. 1, ed. J.R.  
Smallwood (St. John’s: Newfoundland Book Publishers, 1937), p. 286 [Province’s Historical Documents, vol. 72,  
CD 954].  
462  
“Newfoundland: Report by the Governor on a visit to the Micmac Indians at Bay d’Espoir”, p. 7  
[Province’s Historical Documents, vol. 68, CD 937].  
Page: 207  
•
The 19th and 20th century Mi’kmaq were active participants in the fur  
trade and, indeed, those encountered in the interior of Newfoundland  
by explorers, such as Cormack and others, were in pursuit of furs to  
trade.  
•
•
The Mi’kmaq themselves expressed concerns to the Newfoundland  
Government about the deleterious effects of over-hunting, particularly  
on the beaver population.  
The Mi’kmaq were not the sole participants in the fur trade during this  
period. Other aboriginals, such as the Montagnais from Labrador, and  
Europeans were trapping and hunting in the interior as well.  
The Mi’kmaq presence was first noted on the west coast, particularly  
the Bay St. George area, and then later in the Bay d’Espoir area.  
Europeans in the 19th and 20th century referred to the Mi’kmaq as  
“Indians from Cape Breton”, “French Indians”, “Foreign Indians”, or  
“Canadian”, but the Beothuk were referred to as “aborigines”, “native  
Indians” or “Islander Indians”.  
•
•
[482] The Province submits that the Mi’kmaq, like the Europeans, are newcomers  
to the Island. It refers to Dr. von Gernet’s comments regarding the timing and  
motivation of the Mi’kmaq migration to Newfoundland. Based on the available  
evidence, his conclusion is that:  
...the Mi’kmaq did not come to Newfoundland to engage in activities that  
were integral to their distinctive culture at the time of – or at pre-contact  
times, and their interest in the island had to do with the European  
presence. It was, in one way or another, connected to the European  
presence in North America. Two major factors are involved here: their  
intimacy with the French, which explains a lot of the geographical  
distributions, at least during the early period before they became well  
established; and secondly, the fur trade, which by definition is also a  
consequence of the European presence in North America.  
[483] The Province argues the historical evidence presented in this case indicates  
that colonial officials have throughout the centuries considered the Mi’kmaq to be  
newcomers to the Island and that the Mi’kmaq have, until very recently, viewed  
themselves as newcomers. The Mi’kmaq had seasonal campsites in the Bay  
d’Espoir area in the late 18th century so they could be close to their French allies on  
St. Pierre and Miquelon, in the Province’s view, and by the middle of the 19th  
century these temporary sites had developed into a permanent settlement at Conne  
River. The fact that the Mi’kmaq did not arrive in Bay d’Espoir or settle at Conne  
Page: 208  
River until relatively recently simply does not support their claim for a pre-contact  
use and occupancy of the Island, says the Province.  
C.  
The Court’s Findings of Fact on Aboriginal Rights  
[484] Before considering the law applicable in the present case, I will now set out  
what I see as the required findings of fact from the evidence presented by the  
Defendants and the Province.  
1.  
First users of the Bay du Nord Wilderness Area  
[485] I accept the Defendants’ submissions that the reports of Cormack, Gisborne,  
Howley and Millais (paras. 61 - 65 above) establish Mi’kmaq use of the territory  
now known as the Bay du Nord Wilderness Area, goes back to at least 1822, with  
no indication in these reports of a European use or presence. However, the report  
of William Parker to Governor Duckworth in 1810 (para. 456 above), the report of  
Rev. Edward Wix from Hermitage Bay in 1830 (para. 458 above) and Philip  
Smith’s documenting of the Newfoundland settler’s practice of moving from  
coastal summer homes to inland winter homes (para. 459 above), prevent my  
concluding that the Mi’kmaq hunted, fished and trapped in the Bay du Nord  
Wilderness Area before the arrival of Europeans to that territory. I note here that  
the Defendants’ cabins are only approximately 25 to 50 kilometres from Conne  
River, a one day journey (Ken Drew testified his cabin was approximately 12 hours  
walking and canoeing from his home). The Wilderness Area, although several  
days journey away, also would have been within range of hunters travelling from  
the Newman and Hunt Company’s premises at Little Bay (on Long Island  
separating Bay de’Espoir from Hermitage Bay) where Europeans traded furs in  
1790 and 1791 (fn 409 above) and within range of those settlers at Hermitage Bay  
whom Rev. Wix noted had depended upon inland hunting and fishing for their  
subsistence. In any event, as will be discussed in more detail when I turn to the  
case law, in order to have aboriginal rights, the Defendants must do more than  
establish that they hunted, fished and trapped in the Bay du Nord Wilderness Area  
before the Europeans. They must establish on a balance of probabilities that their  
hunting, fishing or trapping practices, customs or traditions in the territory have  
continuity with practices, customs and traditions that existed before the  
Defendants’ ancestors had contact with Europeans. Where the practice, tradition or  
custom utilized European technology or arose solely as a response to European  
Page: 209  
influence , that practice, tradition or custom will not meet the standard for  
recognition of an aboriginal right.  
2.  
Practice integral to the Culture  
[486] The Defendants have established that hunting animals for food and furs was  
a practice, tradition and custom which existed in Nova Scotia and Cape Breton  
prior to contact with Europeans. They have not established that hunting furbearing  
animals for trading purposes was integral to their culture. But, as I will discuss  
further below, I do not believe the Defendants need prove in this respect more than  
they have, namely, that they hunted and trapped furbearing animals for food and  
sources of material for clothing and shelter. Two further problems arise, however,  
for the Defendants. First, they must prove on a balance of probabilities that their  
method of hunting and trapping was not influenced by European contact. If they  
utilized European technology by the time they hunted and trapped in the Bay du  
Nord Wilderness Area, the European influence would prevent the establishment of  
an aboriginal right in the area. Second, the Defendants must establish on a balance  
of probabilities that they hunted and trapped in the specific territory falling within  
the Bay du Nord Wilderness Area.  
3.  
Use of European Technology  
[487] The evidence before this Court establishes that, by the time of the Cormack  
report in 1822, the Mi’kmaq ancestors of the Defendants had available to them for  
their fishing, hunting and trapping, European technology such as, shallops,  
firearms, copper kettles, and European metal traps. See, for example, the 1784  
report from the Barron l’Espè to Minister Malherbe referring to the provisioning of  
80 Mi’kmaq at St. Pierre (fn 402 above). The Defendants’ case, therefore, depends  
upon whether their ancestors fished, hunted and trapped in the territory now known  
as the Bay du Nord Wilderness Area before being exposed to this European  
influence.  
4.  
The Geographic Range of Pre-contact Activity  
[488] The first reference to a Mi’kmaq presence specifically in the territory now  
referred to as the Bay du Nord Wilderness Area is that of Cormack in 1822. As  
noted above, that would be after contact with Europeans and after Mi’kmaq access  
to European technology. The Defendants have not established their Mi’kmaq  
Page: 210  
ancestors fished, hunted or trapped in the area where they now have hunting cabins  
before 1822. Even if I assume, as I believe it is reasonable to do because of  
reasonable proximity, that the Defendants’ ancestors would have fished, hunted  
and trapped in the area in question once they settled at Conne River, the evidence,  
noted in detail in the next section, satisfies me that the Defendants’ ancestors did  
not settle at Conne River until the 18th century, and, indeed, probably not until the  
latter part of that century.  
5.  
Mi’kmaq Arrival on the Island of Newfoundland  
[489] Not only have the Defendants not met the burden of establishing on a  
balance of probabilities that their Mi’kmaq ancestors fished, hunted, and trapped on  
the Island of Newfoundland before contact with Europeans; the evidence before  
this Court has satisfied me to the contrary , namely, that, the Mi’kmaq ancestors of  
the Defendants arrived in Newfoundland from Cape Breton after the 1550 date  
when archaeological evidence supplied by Dr. Christianson (Part III.B.3(d) above)  
shows they probably had had contact with Europeans at Cape Breton. Also by then  
Europeans probably had arrived not only at St. John’s (John Cabot, 1497) but also  
at St. Pierre and Miquelon (Cartier 1535-6). I base the conclusion about Mi’kmaq  
arrival in Newfoundland after 1550 upon the following evidence:  
(a) First Mi’kmaq evidence on island of Newfoundland  
[490] While there may have been a small group of Mi’kmaq around Placentia  
sometime after the French census of 1673 (fn 305 ff. above), the first evidence of a  
Mi’kmaq population on the island sufficient to comprise a Band and reported in the  
area of the south coast in proximity to the Bay du Nord Wilderness Area was in  
1705 or 1707, as noted by the letters from Subercase and Costebelle to the Minister  
(fn 321 and fn 322 above).  
(b) Contact at Cape Breton  
[491] The first contact of the Mi’kmaq of Cape Breton with Europeans was  
probably with French Bretons in 1504 (Hoffman, ED 6, p. 7). By 1520 the  
Portugese Fergundes had explored and by 1525 settled in Cape Breton (Ganong,  
Crucial Maps, in von Gernet Supporting Documents, vol. 13, Tab 136, pp. 45-7;  
and Prins, The Mi’kmaq Resistance, in von Genet, vol 36, tab 334, p. 45).  
Page: 211  
(c) The travel account of Crignon  
[492] The Defendants rely strongly upon the 1539 report by Pierre Crignon, an  
associate of the Parmentier brothers, reported by Ramusio and translated by  
Hoffman, with a reference from the Jean Parmentier voyage of 1529 to a “cruel and  
austere people, with whom it is impossible to deal or to converse....of large statute,  
....marked by certain lines made by applying fire to their faces...as if stripe were the  
colour between black and brown...” (fn 66 above) Crignon contrasts them with  
another native group “smaller, more humane, and friendler” (fn 66 above). In  
earlier references to natives of the Island of Newfoundland, for example, the 57  
captured by Gaspar Corte Real in 1501 and the 7 captured by the French and  
brought to Rouen in 1509 (fn 134 and fn 135 above) it is not possible to identify  
the ethnicity of the natives with any measure of probability, although scholarly  
consensus accepts that they were probably Beothuk. As for those reported by  
Crignon, I conclude the ethnicity again has not been established because:  
-
-
it appears Crignon was relying largely on hearsay;  
he believed the coastline between Cape Race and Cape Breton to be  
continuous (Newfoundland was not then shown as a separate island on  
the maps of the day, for example, the Weimar-Ribero Chart, CD 18, p.  
17) and apparently did not distinguish between Newfoundland and  
Cape Breton;  
-
-
tattoos and a topknot hairstyle could be found in many aboriginal  
groups, including the Beothuk, according to Dr. von Gernet; and  
lacking evidence that the Mi’kmaq were hostile towards the French,  
aggressiveness should not be used as an ethnic identifier (para. 163  
above).  
(d) Mi’kmaq Place Names on Maps  
[493] While the 1550 Lopo Homen map and the Diogo Homen maps (fn 157 to fn  
159 above) show Mi’kmaq place names in Cape Breton in the 16th century, there  
are no maps from the 16th century with aboriginal place names for the Island of  
Newfoundland.  
(e) Cartier’s Contact  
Page: 212  
[494] Cartier’s report of trading with aboriginals at the Bay of Chaleur in 1534 is  
accepted by scholars as a reference to Mi’kmaq and shows that by this time,  
probably as a result of exposure to the Portugese, the Mi’kmaq of that region were  
involved in trade with Europeans (Cartier, in von Gernet, vol. 7, Tab 75, at pp. 20-  
22; and Prins, in von Gernet, vol. 36, Tab 334, at p. 46).  
(f) Report of Jean Alfonse de Saintonge  
[495] There is a reference by Jean Alfonse de Saintonge in 1544 (based on his  
observations as a member of the 1542 Robervale expedition to the St. Lawrence  
River) that aboriginals “from Cape Breton make war against those of  
Newfoundland when they go fishing....” (Marshall, in von Gernet, vol. 24, Tab 232,  
at p. 423). Dr. Prins concludes this refers to the presence of Mi’kmaq and Beothuk  
on the Island at this time. I find that this conclusion is rebutted by the analysis of  
Dr. von Gernet, who noted Alfonse’s account was at best hearsay and questionable  
in its reference to the similarity of the languages of the two groups. Dr. Prins’  
conclusion is also rebutted by the following evidence from the archaeological  
record and the notarial records.  
(g) The Archaeological Record  
[496] The archaeological evidence from Nova Scotia clearly establishes the  
Mi’kmaq used pottery before Europeans arrived. I am satisfied that, had the  
Mi’kmaq been present on the Island of Newfoundland early in the 16th century, one  
would expect to find archaeological sites in Newfoundland with Mi’kmaq ceramics  
and stone, bone and horn tools, if not wood and leather. Dr. Christianson testified  
that Mi’kmaq archaeological sites in Nova Scotia by 1550 had begun to show  
assemblages with European goods, including axes, iron spear points and arrow  
heads, and copper kettles. Despite more than twenty years of archaeological  
investigation on behalf of the Miawpukek Band there is no archaeological record to  
support the view that the Mi’kmaq were present on the Island of Newfoundland  
before 1550. Indeed the twelve Mi’kmaq sites identified in Newfoundland are all  
very recent 19th and 20th century sites (fn 241 above). Some of the sites identified  
as European may be, at least in part, Mi’kmaq, but dated after they had acquired  
European goods.  
[497] I do not accept the Defendants’ contention that this is a situation where “an  
absence of evidence is not evidence of absence”. I agree with Dr. von Gernet’s  
Page: 213  
rebuttal of Helen Keenlyside and accept that in the present case the Court is not  
dealing with an absence of evidence. There is evidence of 873 archaeological sites  
on the Island of Newfoundland with 968 identified cultural affiliations ( para. 251  
above). There are 40 Recent Indian, 39 Little Passage, 24 Beaches, 14 Cow Head,  
and 73 Beothuk sites scattered around Newfoundland (note 233 above). Yet there  
has not been a single pre-contact Mi’kmaq artifact or site identified on the Island.  
Only two ceramic sites have been recorded on the Island of Newfoundland. One  
ceramic artifact (a single potsherd from the south coast) was identified as Point  
Peninsula and found associated with 630 A.D. Dorset cultural material. In  
addition, a few fragments, radiocarbon dated to approximately 450 - 500 A.D.,  
were found in a Recent Indian Component at Port aux Choix (para. 255 above).  
Archaeologists in Cape Breton and on mainland Nova Scotia have had no difficulty  
in locating pre-contact Mi’kmaq ceramic sites there. Newfoundland, which has  
had more archaeological investigation than Nova Scotia due to a university  
graduate program in archaeology, has not revealed evidence of Mi’kmaq artifacts  
or sites. This is compelling evidence against the Defendants’ submission that the  
Mi’kmaq were present on the Island of Newfoundland before European contact.  
(h) The French Notarial Records  
[498] Other compelling evidence against the Defendants’ claim comes from the  
French Notarial Records, found by the Province’s researchers in the course of  
preparing for this case. Dr. Turgeon’s data from the notarial records reports of  
Bourdeau, Rouen and Rochelle show that up to 150 ships were outfitted to fish in  
Newfoundland in 1559. The records indicate that French fishery occurred not only  
on the Avalon Peninsula but also along the south and west coasts by 1594 (paras.  
263-67 above). They indicate the Europeans were attracted to fish in  
Newfoundland every summer, by the end of the 16th century. Given the large  
numbers of Europeans, it would be reasonable to expect there would be a  
substantial fur trade. The notarial records indicate, however, this was not the case.  
The French records confirm a fishery was carried out in Newfoundland and a fur  
trade on the “coast of Florida”, that is, along the Atlantic Seaboard, including Cape  
Breton and Nova Scotia, but excluding the Island of Newfoundland (paras. 268 -  
286). A Dutch record on the voyage of the Witte Laeuw also confirms a fur trade  
in Canada but not Newfoundland (para. 268 above).  
[499] I agree with Dr. Turgeon that records showing ships being outfitted for a  
clandestine trade in furs on the mainland from Newfoundland between 1616 and  
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1645, with no reference to a fur trade in Newfoundland, support the inference that  
there were no Mi’kmaq groups then coming from Cape Breton to Newfoundland.  
If they had been, there would had been less risk for the fishermen to trade with the  
Mi’kmaq instead of launching these illegal expeditions and risking confrontations  
with the holders of the trading monopolies on the mainland (paras. 276-280 above).  
The record submitted by the Defendant for the later 16th and early 17th centuries,  
with references to furs from “terre neuve” being used on clothing in Paris does not  
satisfy me that there was at that time a fur trade with aboriginals in Newfoundland.  
Dr. Turgeon explained that records indicate the Parisian notaries were using “terre  
neuve” to refer to the newly found lands of North America generally and not  
specifically to the Island of Newfoundland at that time. Also, the small number of  
furs involved may have been trapped by European fishermen.  
[500] The compelling evidence from the French notarial records that there was no  
fur trade between the Mi’kmaq and Europeans in Newfoundland in the 16th and  
most of the 17th century in itself would be enough to satisfy me on a balance of  
probabilities that the Mi’kmaq were not occupying or using the Island during that  
period. This information is corroboration of and is corroborated by the  
archaeological evidence earlier mentioned.  
(i)  
The Silent Sources  
[501] The reference by Lescarbot in 1610 to “Souriquois” (Mi’kmaq) being on  
territory “extending toward Newfoundland”; his reference to nomadic people  
living “from the first land (which is Newfoundland) to the Country of the  
Armouchiquois [Abenaki]” (paras. 88-89 above), and the reference of Father Biard  
in 1616 to the Savages found “from Newfoundland to Chouacoët” (para. 90)  
because of their ambiguity do not establish that Mi’kmaq territory included  
Newfoundland. Neither do the records showing the Mi’kmaq knew the name of  
Placentia (information which was probably obtained from European fishermen in  
Cape Breton who had previously been to Newfoundland) or Champlain’s reference  
to aboriginals crossing over from the mainland to see vessels engaged in the cod  
fishery (para 91) (the aboriginals could have been from Labrador). I prefer the  
opinion of Dr. von Gernet to that of Dr. Prins on these points and I accept the  
Province’s submission as to the unreliability of the evidence noted here for  
establishing a Mi’kmaq connection with Newfoundland. I also agree with the  
Province’s submission that the lack of other references by Lescarbot and Fr. Biard  
and the silence of the reports by Champlain, Denys, Le Clerq and Diereville as to a  
Page: 215  
Mi’kmaq presence in Newfoundland (paras. 289-99 above), support the conclusion  
there probably was none until at least the late 1600's. But I recognize the inference  
to be drawn from the silence of these reports is weakened by the fact that they were  
also silent about a Mi’kmaq presence on the Magdalen Islands, where historical  
and archaeological support exists for this.  
(j) The accounts of John Matthews, John Downing and John Thomas  
[502] I accept the detailed and well-reasoned testimony of Dr. von Gernet  
concerning the reports of John Matthews in 1670, John Downing in 1676 and John  
Thomas in 1680, of “Indians” coming from Canada to hunt (paras. 96-97 above)  
and agree with him that these references are unclear as to whether they refer to  
Mi’kmaq.  
(k) The Placentia records  
[503] The Placentia records satisfy me that until 1687 there was no reference to  
aboriginals and then only three were recorded, two adults and a boy with no  
ethnicity noted (para. 101). The court-martial documents of 1695 relating to the  
murder of members of the Turbis family indicate there were at least twelve  
Mi’kmaq near Placentia by this date. I do not accept the Defendants’ submissions  
that I should assume there were other Mi’kmaq who just did not get reported  
because of either lack of official presence along the south coast or because of  
French disinterest in ordinary everyday aboriginal matters. Records from Cape  
Breton, Nova Scotia and other areas indicate a French interest in recording  
aboriginal activity and, particularly, economic activity such as fur trading, when  
aboriginals were actually present. I accept Dr. von Gernet’s opinion as to the  
unlikelihood of a Mi’kmaq fur trade to the west not being reported by the French  
governor at Placentia. I also accept his opinion and that of Dr. Turgeon that there  
is nothing in the Placentia records from which one might reasonably infer that other  
Mi’kmaq resided around Placentia or on the south coast of Newfoundland in  
addition to those recorded in the Placentia censuses.  
[504] I agree with the Province that the letters of Governor de Brouillon from  
Placentia in 1694, calling for the import of savages from Acadia to aid in attacking  
the English and noting only “unwarlike” savages on the south coast who flee from  
Europeans (paras. 103 and 319-322 above), leads to the reasonable inference that  
the Governor knew of no Mi’kmaq available at Placentia or along the south coast.  
Page: 216  
The request of Duraud la Garenne for 15 - 20 savages to apprehend deserters (para.  
326 above) leads to the same conclusion. The report of Governor Subercase on  
October 22, 1705, about Mi’kmaq families having crossed from Cape Breton to  
Newfoundland the previous July (paras. 104 and 326 above) supports the  
conclusion that this was probably the first time Mi’kmaq had arrived on the Island  
in significant numbers on their own accord.  
[505] The letters of Governor Costebelle in 1707 and 1709 (paras. 328-330 above)  
also confirm the French view that the “country” or homeland of the Mi’kmaq at  
that time was Cape Breton.  
(l)  
The British Record of Mi’kmaq Arrival  
[506] With the signing of the Treaty of Utrecht on July 13, 1713, Britain acquired  
Newfoundland and St. Pierre. French peninsular Acadia became English Nova  
Scotia. Only Cape Breton (Ile Royale), Prince Edward Island (Ile St.-Jean) and the  
Magdalen Islands remained in the hands of the French. The French in  
Newfoundland transferred to Cape Breton, and, as Dr. von Gernet noted, sought to  
ensure the support of the Mi’kmaq by having them move to French territory (von  
Gernet Expert Report, pp. 158-160).  
[507] Capt. Taverner’s surveys (paras. 334-341 above), though to a large extent  
apparently based on hearsay, indicate Mi’kmaq from Cape Breton were coming to  
fur at Cape Ray, the southwest tip of the Island, and along the west coast of  
Newfoundland from 1714 to 1734. The 1720 report of Samuel Gledhill of two  
open boats full of Indians seen from St. Pierre (para. 124 above), the 1727 report  
of de Brouillan about a Mi’kmaq capture of a Boston vessel at Port aux Basques,  
and the 1730 report of de Bourville that 15 savages from Cape Breton had been  
taken prisoner near St. Pierre by an Englishman from Desgaules [Grole or Pass  
Island] (paras. 125-126), establish this is probably accurate and that Mi’kmaq were  
by then at least occasionally hunting along the south coast as far as St. Pierre and  
the Hermitage Peninsula. Accepting the Defendants’ submission that this Court  
must determine the degree to which the reasonable inferences may be drawn to  
show a Mi’kmaq presence of greater extent than that officially recorded, I am not  
satisfied these references establish a Mi’kmaq presence in the Bay du Nord  
Wilderness Area. Capt. Taverner also confirmed the existence of French settlers on  
the south coast in proximity to Bay du Nord, who wintered and hunted for furs, for  
example, Monsieur Belorme, who by 1718 had spent 20 winters at Belleoram and  
Page: 217  
others in the Bay du Nord and Long Harbour areas (von Gernet Expert Report, pp.  
164-65). I agree with Dr. von Gernet that, had there been Mi’kmaq regularly then  
in proximity to the Bay du Nord Wilderness Area, one would expect these French  
settlers and Taverner to have reported this (para. 340 above). I also agree with Dr.  
von Gernet’s suggestion that, while the English occupied St. Pierre & Miquelon, it  
is doubtful the Mi’kmaq would have come this far east with any regularity at this  
time, since they would have few, if any, trading partners, not being on good terms  
then with the English (von Gernet Expert Report, at 183).  
[508] The infrequent surveys of the Royal Navy along the south coast between  
1713 and 1763 (for example, Gaudy in 1716, Crawford in 1734, and Boscawen in  
1755) did not report the presence of aboriginals. But there are reports of hostilities  
between the English and Indians (probably Mi’kmaq) in 1746463, 1748464 and  
1749465, and by 1755 Abbé Maitland is referring to the Mi’kmaq going away to  
Newfoundland.466 French and Irish fishermen settled in the Codroy area between  
the 1720s and 1750s (para. 344 above). Codroy records make no reference to  
aboriginals until the 1763 report of Capt. Samuel Thompson (para. 346).  
[509] Capt. Thompson’s report of Indians from Cape Breton coming to fur during  
the previous two winters, provides evidence of when the Mi’kmaq began returning  
regularly to Newfoundland. I agree with the Province that the evidence indicates  
the Mi’kmaq desire to be near French priests at St. Pierre was a significant reason  
for the Mi’kmaq return to the south coast after the Treaty of Paris in 1763 returned  
St. Pierre to the French (para. 348 above). I need not determine the Mi’kmaq  
primary motivation for their return since I find by this time the Mi’kmaq were  
clearly utilizing European technology (para. 352 above), the French had had a  
presence in the area of the south coast of Newfoundland for many years, and the  
British had established sovereignty.  
463  
Thomas Craven to Admiral Townsend, 2 July 1746: “Indians from Canada last Winter taken several of  
the Furriers in the White Bay” [CD 388].  
464  
John R. Brodhead, Documents Relative to the Colonial History of the State of New York (1858), vol. 10,  
pp. 174-5": “40 Micmacs of Ile Royale have been wintering at Newfoundland, and struck a blow in the fall on  
several isolated English houses” [Cd 914].  
465  
Abbé Maitland, An Account of the Customs and Names of the Micmakis and Maricheets Savage  
Nations (1758): “...the savages, having made prisoners two Englishmen of Newfoundland...”.  
466  
The same.  
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[510] I need go no further in historical analysis for the purposes of this decision. It  
may be helpful to note, however, that, while the evidence does not establish a  
definite date for the establishment of Conne River as a temporary and then  
permanent Mi’kmaq settlement, I am satisfied from the letters of Baron de  
l’Esperance in 1769 and 1784 (paras. 445 & 447 above), and St. Pierre and  
Miquelon Parish Registers, including the Miquelon baptismal record of Jeanne Heli  
of “Bay des Esperes” (para. 446) that the Mi’kmaq were regularly frequenting St.  
Pierre and Miquelon and, therefore, probably the Conne River area and probably  
the territory now within the Bay du Nord Wilderness Area, by as early as 1764.  
(m) The Rotational Foraging Model  
[511] Although my findings on this issue may be inferred from conclusions  
previously noted, it may assist the parties to have specific comments on the  
rotational foraging model of Mi’kmaq natural resource use relied on by the  
Defendants.467  
[512] Dr. Prins agreed with the use of this model, originally developed by Charles  
Martijn in 1989, to help explain why European records frequently mention the  
Mi’kmaq had “abandoned” a certain area when several years later the Mi’kmaq are  
reported as showing up there again, hunting and trapping as usual. As postulated  
by Martijn, the model accepts:  
that the Mi’kmaq needed to make continued adjustments to their seasonal  
rounds in response to a variety of environmental and socio-economic  
factors such as periodic decreases in certain animal populations,  
unfavourable snow conditions for hunting big game, forest fires,  
occasional droughts and variations in sea water temperature which  
affected the reliability of springtime anadromous fish runs, human  
population pressure, and conflict with other groups. Any such factor, or  
a combination of them, could have resulted in hardship for particular  
Mi’kmaq bands if it led to a scarcity of food supplies. In periods of such  
stress, the Eastern Mi’kmaq responded by adopting a procedure whereby  
they extended their hunting, fishing and gathering activities to different  
adjoining geographical areas in order to supplement a variety of needs.  
Depending on the circumstances, and on the political situation of the  
moment, this permitted them to exploit specific sections of their  
territorial domain on a concurrent, seasonal, rotational and even  
opportunistic basis. It is from such a perspective that we should consider  
467  
Discussed in Prins, Expert Report, pp. 17ff, and in von Gernet, Expert Report, pp. 172 ff.  
Page: 219  
the question of the land use of Southern Newfoundland by the Eastern  
Mi’kmaq, starting perhaps already in prehistoric time.  
[513] I agree with the Defendants that this is not an unreasonable perspective from  
which to approach analysis of the evidence in the present case. I also accept, as  
does the Province, that the Mi’kmaq had sea-going canoes capable of crossing the  
24 km from Cape Breton to St. Paul Island and the 76 km from St. Paul Island to  
Cape Ray, Newfoundland, a headland visible from the Cape Breton coast. Still, I  
am not persuaded I should accept, as Maritijn and Dr. Prins suggest, that the  
“eastern domain” of the Mi’kmaq for this rotational foraging, included  
Newfoundland as well as Cape Breton Island, the Magdalen Islands, and St. Pierre  
& Miquelon. The issue for this Court is not whether the Mi’kmaq could have  
crossed to Newfoundland. The issue is whether in fact they did cross. While the  
archaeological evidence justifies the model’s application to the Magdalen Islands,  
no archaeological support appears for its application to Newfoundland. Indeed the  
historical records previously noted establish that the Mi’kmaq probably did not  
appear in Newfoundland to hunt and trap until after contact with Europeans and  
after access to European shallops and other European technology in the early  
1700s.  
[514] I accept Dr. von Gernet’s opinion that the Mi’kmaq depletion of resources  
on Cape Breton due to involvement in the European fur trade was a significant  
factor in their extending their foraging domain from Cape Breton to  
Newfoundland, but probably not until the early 18th century (von Gernet’s Expert  
Report, p. 177). In summary, the rotational foraging model supports the view that  
Mi’kmaq bands moved with a degree of regularity from place to place. But other  
than as a context for analysis, it does not provide evidence of which places.  
IV. THE LAW AND ANALYSIS - ABORIGINAL RIGHTS  
1.  
Introduction  
[515] The Defendants claim a right to maintain and use cabins located in the Bay  
du Nord Wilderness Area as an incidental right to their aboriginal rights protected  
by s.35(1) of the Constitution Act, 1982. Section 35(1) states: "The existing  
aboriginal and treaty rights of the aboriginal peoples of Canada are hereby  
Page: 220  
recognized and affirmed." The subject of aboriginal and treaty rights has seen  
significant recent development by the Supreme Court of Canada.468  
[516] The Supreme Court considers the doctrine of aboriginal rights a unique part  
of the common law. As Lamer C.J.C. in Delgamuukw summarized from Van der  
Peet:  
In other words, although the doctrine of aboriginal rights is a common  
law doctrine, aboriginal rights are truly sui generis, and demand a unique  
approach to the treatment of evidence which accords due weight to the  
perspective of aboriginal peoples. However, that accommodation must be  
done in a manner which does not strain ‘the Canadian legal and  
constitutional structure’ (at para 49). Both the principles laid down in  
Van der Peet - first, that trial courts must approach the rules of evidence  
in light of the evidentiary difficulties inherent in adjudicating aboriginal  
claims, and second, that trial courts must interpret that evidence in the  
same spirit - must be understood against this background.469  
[517] In Van der Peet,470 Lamer C.J. writing for the majority set forth a number of  
principles in relation to aboriginal rights:  
In my view, the doctrine of aboriginal rights exists, and is recognized and  
affirmed by s. 35(1), because of one simple fact: when Europeans arrived  
in North America, aboriginal peoples were already here, living in  
communities on the land, and participating in distinctive cultures, as they  
had done for centuries. It is in this fact, and this fact above all others,  
which separates aboriginal peoples from all other minority groups in  
Canadian society and which mandates their special legal, and now  
constitutional, status.  
[518] Van der Peet established that a purposive analysis of s.35(1) must be  
undertaken in the context of the general principles which apply to the legal  
relationship between the Crown and aboriginals. Section 35(1) should be given a  
generous and liberal interpretation in favor of aboriginal peoples. The Crown has a  
468  
See, particularly R. v. Van der Peet, [1996] 2 S.C.R. 507 (S.C.C., 4 C.N.L.R. 1 (S.C.C.; R. v. Adams  
[1996] 4 C.N.L.R. 1 (S.C.C.); R. v. Cote, [1996] 4 C.N.L.R. 26 (S.C.C.); R. v. Sparrow, [1990] 3 C.N.L.R. 160  
(S.C.C.); Delgamuukw v. British Columbia, [1998] 1 C.N.L.R. 14 (S.C.C.); and Mitchell v. M.N.R. (2001), 199  
D.L.R. (4th) 385 (S.C.C.)  
469Delgamuukw, note 468 above, para. 82.  
470  
Note 468 above, at para. 30.  
Page: 221  
fiduciary obligation to aboriginal peoples such that in dealings between the  
government and aboriginals the honor of the Crown is at stake. Where there is any  
doubt or ambiguity with regards to what falls within the scope of s.35(1), such  
doubt or ambiguity must be resolved in favor of aboriginal peoples. Lamer C.J.  
noted in Van der Peet471:  
Before turning to a purposive analysis of s. 35(1), however, it should be  
noted that such analysis must take place in light of the general principles  
which apply to the legal relationship between the Crown and aboriginal  
peoples. In Sparrow, supra, this Court held at p. 1106 that s. 35(1) should  
be given a generous and liberal interpretation in favor of aboriginal  
peoples:  
When the purposes of the affirmation of aboriginal rights  
are considered, it is clear that a generous, liberal  
interpretation of the words in the constitutional  
provision is demanded. [Emphasis added][by Lamer J.]  
This interpretive principle, articulated first in the context of treaty rights -  
Simon v. The Queen [1985] 2 S.C.R. 387, at p. 402; Nowegijick v. The  
Queen, [1983] 1 S.C.R. 29, at p. 36; R. v. Horseman, [1990] 1 S.C.R.  
901, at p. 907; R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1066 - arises from  
the nature of the relationship between the Crown and aboriginal peoples.  
The Crown has a fiduciary obligation to aboriginal peoples with the  
result that in dealings between the government and aboriginals the  
honour of the Crown is at stake. Because of this fiduciary relationship,  
and its implication of the honour of the Crown, treaties, s. 35(1), and  
other statutory and constitutional provisions protecting the interests of  
aboriginal peoples, must be given a generous and liberal interpretation:  
R. v. George, [1966] S.C.R. 267, at p. 279. This general principle must  
inform the Court's analysis of the purposes underlying s. 35(1), and of  
that provision's definition and scope.  
The fiduciary relationship of the Crown and aboriginal peoples also  
means that where there is any doubt or ambiguity with regards to what  
falls within the scope and definition of s. 35(1), such doubt or ambiguity  
must be resolved in favor of aboriginal peoples. In R. v. Sutherland,  
[1980] 2 S.C.R. 451, at p. 464, Dickson J. held that paragraph 13 of the  
Memorandum of Agreement between Manitoba and Canada, a  
constitutional document, ‘should be interpreted so as to resolve any  
doubts in favor of the Indians, the beneficiaries of the rights assured by  
the paragraph’. This interpretive principle applies equally to s. 35(1) of  
the Constitution Act, 1982 and should, again, inform the Court's  
purposive analysis of that provision.  
471Paras 23-25.  
Page: 222  
[519] The substantive rights which fall within s. 35(1) must be defined in light of  
the purpose of reconciling the reconciliation of the pre-existence of aboriginal  
societies with the sovereignty of the Crown:  
More specifically, what s. 35(1) does is provide the constitutional  
framework through which the fact that aboriginals lived on the land in  
distinctive societies, with their own practices, traditions and cultures, is  
acknowledged and reconciled with the sovereignty of the Crown. The  
substantive rights which fall within the provision must be defined in light  
of this purpose; the aboriginal rights recognize and affirmed by s. 35(1)  
must be directed towards the reconciliation of the pre-existence of  
aboriginal societies with the sovereignty of the Crown.472  
[520] The legal test for identifying an “existing aboriginal right” within the  
meaning of section 35(1) of the Constitution Act, 1982 was first set out by Lamer  
C.J.C. in Van der Peet. Speaking for the majority of the Court, Lamer C.J.C. stated:  
... the following test should be used to identify whether an applicant has  
established an aboriginal right protected by s. 35(1): in order to be an  
aboriginal right an activity must be an element of a practice, custom or  
tradition integral to the distinctive culture of the aboriginal group  
claiming the right.473  
[521] In the more recent case of Mitchell v. M.N.R., McLachlin C.J.C. restated the  
test:  
... the claimant is required to prove: (1) the existence of the ancestral  
practice, custom or tradition advanced as supporting the claimed right;  
(2) that this practice, custom or tradition was ‘integral’ to his or her  
pre-contact society in the sense it marked it as distinctive; and (3)  
reasonable continuity between the pre-contact practice and the  
contemporary claim.474  
[522] In order to assist trial courts in the application of the test for aboriginal  
rights, the Supreme Court of Canada in Van der Peet set out ten principles of  
interpretation. These principles may be summarized, as follows:  
472 The same, para. 31.  
473  
Note 468 above, p. 310, para. 46.  
474  
Note 468 above, at p. 405, para. 26.  
Page: 223  
•
•
Courts must take into account the perspective of aboriginal peoples  
themselves.  
Courts must identify precisely the nature of the claim being made in  
determining whether an aboriginal claimant has demonstrated the  
existence of an aboriginal right.  
•
•
In order to be integral a practice, custom or tradition must be of central  
significance to the aboriginal society in question.  
The practices, customs and traditions which constitute aboriginal  
rights  
are those which have continuity with the practices,  
customs and traditions that existed prior to contact.  
•
•
•
Courts must approach the rules of evidence in light of the evidentiary  
difficulties inherent in adjudicating aboriginal claims.  
Claims to aboriginal rights must be adjudicated on a specific rather  
than a general basis.  
For a practice, custom or tradition to constitute an aboriginal right it  
must be of independent significance to the aboriginal culture in which  
it exists.  
•
The integral to a distinctive culture test requires that a practice, custom  
or tradition be distinctive; it does not require that the practice,  
custom or tradition be distinct.  
•
The influence of European culture will only be relevant to the inquiry  
if it is demonstrated that the practice, custom or tradition is only  
integral because of that influence.  
•
Courts must take into account both the relationship of aboriginal  
peoples to the land and the distinctive societies and cultures of  
aboriginal peoples.  
2.  
The test for aboriginal rights  
Page: 224  
[523] From Van der Peet,475 it follows that the test for identifying aboriginal rights  
recognized and affirmed by s. 35(1) must be directed at identifying the crucial  
elements of those pre-existing distinctive societies. It must, in other words, aim at  
identifying the practices, traditions and customs central to the aboriginal societies  
that existed in North America prior to contact with Europeans.  
[524] Peter Hogg in his text, Constitutional Law of Canada, puts the Van der Peet  
test this way:  
In order for a practice to be ‘integral’, the practice must be ‘of central  
significance’ to the aboriginal society, it must be a ‘defining’ characteristic of the  
society, ‘one of the things that made the culture of the society distinctive’. The  
practice must have developed before ‘contact’, that is, ‘before the arrival of  
Europeans in North America’. The practice could evolve over the years as the  
result of contact, for example, the bone hook would be replaced by the steel hook,  
the bow and arrow by the gun, and so on, but a practice that has evolved into  
modern forms must trace its origins back to the pre-contact period. Contemporary  
practices that developed ‘solely as a response to European influences’ do not  
qualify.476  
[525] The aboriginal right at issue in the present case is a claimed right to hunt,  
fish and trap in the Bay du Nord Wilderness Area. Expert witnesses for both the  
Defense and the Crown gave evidence distinguishing the Mi'kmaq as a  
hunting-gathering society in which hunting, fishing and trapping was integral to the  
distinctive society in pre-contact and post-contact times. Witnesses asserted that a  
shift in focus occurred in the post-contact era, in that maritime-oriented aspects of  
the seasonal round of hunting and gathering received less emphasis and land-based  
activities increased. This shift was occasioned in part by increased involvement in  
the fur trade after initial contact. But experts agreed that the Mi'kmaq continued  
hunting and gathering of both land and marine resources after initial contact.477  
(c) The Evidentiary Burden  
475  
Note 468 above, para. 44.  
476  
Peter W. Hogg, Constitutional Law of Canada (loose-leaf ed.) (Toronto: Carswell, 1997), para. 27.5(b).  
477 von Gernet Expert Report, pp. 175-176; Prins Expert Report, pp. 25-28; 35-36; 60-62.  
Page: 225  
[526] The Defendants have to establish their claim on a balance of probabilities.  
On this issue the standard most often cited is that of Lord Denning in Miller v.  
Minister of Pensions.478  
That degree [of cogency]is well settled. It must carry a reasonable degree  
of probability, but not so high as is required in a criminal case. If the  
evidence is such that the tribunal can say: ‘We think it more probable  
than not’, the burden is discharged, but, if the probabilities are equal, it is  
not.  
[527] The Defendants submit jurisprudence provides ample support for the  
proposition that the balance of probabilities standard is fluid and will vary  
depending on the nature of the case. They quote Lord Denning:  
The case may be proved by a preponderance of probability, but there may  
be degrees of probability within that standard. The degrees depend on the  
subject matter. A civil court, when considering a charge of fraud, will  
naturally require a higher degree of probability than that which it would  
require if considering if negligence were established. It does not adopt so  
high a degree as a criminal court, even when it is considering a charge of  
a criminal nature, but it still requires a degree of probability which is  
commensurate with the occasion.479  
[528] The Supreme Court adopted a similar approach in R. v. Oakes,480 where  
Dickson C.J.C. held that "... within the broad category of civil standard, there exists  
different degrees of probability depending on the nature of the case”.  
[529] The Defendants submit that the standard of proof in aboriginal rights cases  
may be lower than a civil standard, relying upon the following statement from the  
Federal Court:  
The evidence as to some disputed questions of fact is extremely meagre,  
so meagre that, in other circumstances, I should feel that the burden of  
proof had not been discharged. The meagreness of the evidence is,  
however, inherent in its subject-matter. The barren lands are vast and  
their inhabitants few and, until the present generation, widely scattered  
and constantly on the move. Their history, beyond living memory, is  
unrecorded except by the handful of whites who, largely by accident,  
478  
[1947] 2 All E.R. 372 (C.A.), p. 374.  
479  
Bater v. Bater, [1950] 2 All E.R. 458 (C.A.), p. 459.  
480  
[1986] 1 S.C.R. 103, para. 67.  
Page: 226  
encountered them. Their resources did not interest early traders; their  
nomadic ways and tiny camps did not arouse the enthusiasm of  
missionaries. Snow houses leave no ruins and, until the proto-historic  
period, most of their tools and weapons were made of local materials  
which, like themselves, their dogs and tents, were organic and, hence,  
biodegradable. Even today the mineral exploration is carried on over  
large areas where, except near major water crossings close to the  
community, even the Inuit hunters are quite unlikely to come across  
them. Two or three witnessed incidents may well reflect a reality of  
countless unwitnessed incidents.481  
[530] The Defendants submit that expert witnesses for the Crown have looked for  
conclusive, unequivocal and continuous evidence of a Mi'kmaq presence in  
Newfoundland in pre-contact and post-contact times. Moreover, say the  
Defendants, Crown witnesses often evidenced a reluctance to credit circumstantial  
evidence and contextual evidence as to the limitations of European documentation.  
The Defendants contend the Crown's interpretation is inconsistent with the  
Supreme Court of Canada's enunciation of the burden of proof required in  
aboriginal rights cases.  
[531] The Crown submits that a careful analysis of the cases reveal that the  
Supreme Court does not actually accept a lower standard of proof and this is  
confirmed, in any event, by its recent Mitchell482 decision, which explicitly rejects  
that proposition.  
[532] The Province contends the Defendants’ submission focuses much of its  
attention on minor gaps and other small inadequacies in the historical record. The  
Province submits that without demonstrating any “clear evidence” themselves, the  
Defendants have attempted to draw a positive inference of pre-contact occupation  
from a perceived incompleteness of the historical record. In other words, says the  
Crown, the Defendants begin with a presumption of Mi’kmaq occupancy and, in  
the absence of what they characterize as “highly cogent evidence” to the contrary,  
ask the Court to accept on a balance of probabilities that the Mi’kmaq regularly  
hunted, trapped and fished in Newfoundland prior to contact. I agree with the  
Province that the Defendants’ written Submission contains demonstrations of this  
type of reasoning. For example, at para. 26, the Defendants state:  
481  
Hamlet of Baker Lake v. Minister of Indian Affairs (1979), 107 D.L.R. (3d) 513 (F.C.T.D.), p. 540; also  
see Van der Peet, para. 68 and Delgamuukw, para. 82.  
482  
Mitchell v. M.N.R., note 468 above, para. 39.  
Page: 227  
To date no archaeological site identifiable as definitively Mi’kmaq has  
been dated any earlier than the 19th century. This does not mean that sites  
which date to earlier periods do not exist, it means only that no such site  
has been yet located or identified.  
[533] Further, in their Submission the Defendants point to a “gap” in the Schemes  
of the Fishery and the Heads of Enquiry as suggesting Mi’kmaq occupation. They  
state at para. 62:  
There are nine years in this half-century ... in which no commodore’s or  
Governor’s report of the fishing season is filed and in which no “Scheme  
of the Fishery” or “Heads of Inquiry” is extant.  
[534] Similarly, the fact that the Royal Navy only patrolled the area west of St.  
Pierre three times in the period 1714-1763, and found no evidence of aboriginals, is  
also promoted as showing the possibility of occupancy. The Defendants state at  
para. 63:  
The number, regularity and detail of reports from St. Pierre 1714-1763 offers  
some indication as to the limitations of the documentation in this period in  
drawing negative conclusions as to the extent of Mi’kmaq (or indeed European)  
presence in Fortune Bay and southwestern Newfoundland.  
Dr. von Gernet addressed this type of fallacious reasoning in respect of  
archaeological evidence. He stated:  
Overall, the application of the DHA [Direct Historical Approach] to  
Newfoundland points to an absence of Mi’kmaq during pre-contact  
times. To partly compensate for this serious deficiency, a hackneyed  
mantra has been invoked: ‘absence of evidence is not evidence of  
absence’. The phrase is attractive but scientifically unsound. In many  
instances it is indeed inappropriate to form a positive conclusion from  
negative evidence, but there are times when the absence of evidence is in  
fact evidence of absence. If an Aboriginal group is alleged to have used  
or occupied a particular tract and, after extensive searching, the remains  
they routinely left behind elsewhere are nowhere to be seen in the subject  
lands (which are, however, replete with the remains of their unrelated  
neighbours), this is at minimum evidence of absence. In this case, we are  
not actually dealing with an absence of evidence. Rather, we are  
confronted with the presence of a great deal of evidence that tends to  
favour a conclusion that the pre-contact Newfoundland population was  
other than Mi’kmaq. Had there been no archaeological research in  
Page: 228  
Newfoundland, and had archaeologists not found nearly 1000 individual  
components, then the matter might have been quite different.483  
[535] No historical record is 100% complete. I agree that small gaps in an  
otherwise persuasive historical record, demonstrating that the Mi’kmaq were not  
present in Newfoundland prior to European occupation, cannot be translated into  
proof of a positive presence. In aboriginal rights cases, as in all cases, gaps in the  
evidentiary record are inevitable and what is required of the Court is an assessment  
of the evidence in its totality in order to determine what is most probable. Second,  
the Defendants are the ones who bear the onus of proving the existence of a pre-  
contact aboriginal right and an interference with that right. It is not for the  
Province to “disprove” an assumed practice or presence prior to contact. As Lamer  
C.J.C. indicated in Van der Peet “The claimant must demonstrate that the practice,  
tradition or custom was a central and significant part of the society’s distinctive  
culture”.484 Similarly, concerning interference with an existing right, the Supreme  
Court of Canada stated in R. v. Sparrow485: “The onus of proving a prima facie  
infringement lies on the individual or group challenging the legislation”.  
[536] The lower standard of admissibility in aboriginal cases has no bearing on  
issues of onus, weight and sufficiency. The onus remains with the Defendants to  
adduce the evidence necessary to meet their case on a balance of probabilities.  
Raising the theoretical possibility that Newfoundland was part of Mi’kmaq  
territory prior to contact, owing to the maritime orientation of the Mi’kmaq  
subsistence quest, is not enough. There must be sufficient evidence to elevate the  
possibility to the probability that the Mi’kmaq did hunt, fish or trap on the Island of  
Newfoundland.  
[537] Recently, in Mitchell v. M.N.R., the Supreme Court stated that aboriginal  
“[c]laims must still be established on the basis of persuasive evidence  
demonstrating their validity on the balance of probabilities”.486  
483  
von Gernet, Expert Report, pp. 63-64.  
484  
R. v. Van der Peet, note 468 above, pp. 313-314, para. 55.  
485  
(1990), 70 D.L.R. 385 (S.C.C.), p. 411.  
486  
Mitchell v. M.N.R., note 468 above, p. 409, para. 39.  
Page: 229  
[538] The Defendants suggest that the burden they are required to meet may in fact  
be lower than this. The Defendants rely on the Supreme Court decisions in Van  
der Peet and in Delgamuukw. The relevant paragraph from Van der Peet reads, as  
follows:  
Courts must approach the rules of evidence in light of the evidentiary difficulties  
inherent in adjudicating aboriginal claims  
68  
In determining whether an aboriginal claimant has produced evidence  
sufficient to demonstrate that her activity is an aspect of a practice, custom or  
tradition integral to a distinctive aboriginal culture, a court should approach the  
rules of evidence, and interpret the evidence that exists, with a consciousness of  
the special nature of aboriginal claims, and of the evidentiary difficulties in  
proving a right which originates in times where there were no written records of  
the practices, customs and traditions engaged in. The courts must not undervalue  
the evidence presented by aboriginal claimants simply because that evidence does  
not conform precisely with the evidentiary standards that would be applied in, for  
example, a private law torts case.487  
[539] This comment concerning proof was subsequently reiterated in  
Delgamuukw. The Court stated:  
... although the doctrine of aboriginal rights is a common law doctrine,  
aboriginal rights are truly sui generis, and demand a unique approach to  
the treatment of evidence which accords due weight to the perspective of  
aboriginal peoples. However, that accommodation must be done in a  
manner which does not strain ‘the Canadian legal and constitutional  
structure’ (at para. 49). Both the principles laid down in Van der Peet --  
first, that trial courts must approach the rules of evidence in light of the  
evidentiary difficulties inherent in adjudicating aboriginal claims, and  
second, that trial courts must interpret that evidence in the same spirit --  
must be understood against this background.488  
[540] The Province notes comments made in Delagmuukw were principally made  
in relation to oral history and not to written documentation. The Court there  
wished to ensure that oral history evidence of aboriginal people was admitted and  
given the appropriate weight. The Province points out the majority of evidence led  
in the present case was either archaeological (which, unlike European records  
487  
R. v. Van der Peet, note 468 above, pp. 317-318, para. 68.  
488  
Delgamuukw v. British Columbia, note 468 above, p. 230, para. 82.  
Page: 230  
presents an “aboriginal voice”) or was in the form of written documents and not in  
the form of oral histories or oral traditions. The information provided by the Elders  
at Conne River, while reflecting the rich life of Mi’kmaq in the Province, did not  
refer back far enough to establish the time when Mi’kmaq presence in  
Newfoundland commenced.  
[541] The Supreme Court in Mitchell v. M.N.R. stated: “... Delgamuukw cautions  
against facilely rejecting oral histories simply because they do not convey  
‘historical’ truth, contain elements that may be classified as mythology, lack  
precise detail, embody material tangential to the judicial process, or are confined to  
the community whose history is being recounted.”489 I agree with the Province that  
the Court there was referring to the admissibility of evidence originating within the  
aboriginal community. It would be illogical for courts to heavily weight European  
historical records that favour aboriginals while dismissing all unfavourable written  
records. However nothing in the present case turns on this.  
[542] The second point made by the Province about the Van der Peet comments  
referred to by the Defendants is that they are directed towards the part of the test  
that deals with proving that an activity is an “element of a practice, custom or  
tradition integral to the distinctive culture of the aboriginal group claiming the  
right”490 and not the contact requirement. In Van der Peet the Court refers only to  
“the evidentiary difficulties in proving a right which originates in times where there  
were no written records of the practices, customs and traditions engaged in”.491  
[Emphasis added.] There is no reference to the issue of contact, which the  
Province submits is conceptually very different. Establishing the date of contact is  
fundamentally a different type of fact, says the Province, than showing that an  
aboriginal community engaged in a particular activity at a certain point in time.  
Customs and traditions are internal to an aboriginal community and it is therefore  
logical to extend a degree of latitude in the proving of such traditions. Contact  
dates are supported by external European evidence and most importantly by the  
archaeological record. I do not find this distinction particularly useful or  
significant in the present case .  
489  
Mitchell v. M.N.R., note 468 above, p. 407, para. 34.  
490  
R. v. Van der Peet, note 468 above, p. 310, para. 46.  
491  
The same., p. 318, para. 68.  
Page: 231  
[543] I do agree with the Province’s submission that there is no explicit reference  
in either Van der Peet or Delgamuukw to actually lowering the standard of proof in  
aboriginal litigation; nor is there much guidance given as to how trial courts are to  
weigh evidence. However, the Supreme Court has since stated in Mitchell v.  
M.N.R., “the Van der Peet approach does not operate to amplify the cogency of  
evidence adduced in support of an aboriginal claim”.492 Also, the Court in Van der  
Peet clearly states that courts adjudicating claims “must also be aware that  
aboriginal rights exist within the general legal system of Canada”.493  
[544] In support of their lower standard of proof argument, the Defendants claim  
to rely on Hamlet of Baker Lake v. Min. of Indian Affairs.494 This case dealt with  
the issue of whether the Inuit hold aboriginal title to an area of the Northwest  
Territories. The Defendants suggest that in Baker Lake the Court applied a lower  
standard when the trial judge stated:  
“The evidence as to some disputed questions of fact is extremely  
meagre, so meagre that, in other circumstances, I should feel that the  
burden of proof had not been discharged. The meagreness of the evidence  
is, however, inherent in its subject-matter”.495  
The Province submits this statement does not imply a lower standard, but simply  
indicates that the evidence available to both parties was limited, noting that  
Mahoney J. went on to say:  
On the evidence, I cannot find that the entire Baker Lake Area was  
exclusively occupied by the Inuit on the advent of English sovereignty.  
The archaeological and historical evidence leads to the conclusion that  
probably, at that date, the boundary between Inuit and Indian land  
traversed the southwesterly portion of the Baker Lake Area. I have  
concluded, admittedly on the basis of very meagre evidence and  
recognizing a large element of arbitrariness as necessary to a definition of  
the boundary of exclusive Inuit occupation, that the territory to the south  
492  
Mitchell v. M.N.R., note 468 above, p. 409, para. 39.  
493  
R. v. Van der Peet, note 468 above, p. 312, para. 49.  
494  
Note 481 above.  
495  
The same., at p. 540.  
Page: 232  
and west of a line drawn from the east end of Aberdeen Lake to the  
confluence of the Kazan and Kunyak Rivers was not Inuit territory.496  
[545] The decision suggests that where there is only meagre evidence available,  
this evidence may allow findings for either party. The Province has properly noted  
that this decision was rendered prior to section 35 of the Constitution Act, 1982 and  
the case has since been overtaken by the Supreme Court’s decisions on evidence in  
Van der Peet and Delagamuukw and by the “clear evidence standard” expressed in  
Mitchell.  
[546] In the more recent Mitchell decision the Supreme Court of Canada clarified  
its comments in Van der Peet and Delagamuukw on the interpretation and  
weighing of evidence in aboriginal cases. The clarification seems to be driven by a  
concern that the Court’s comments in earlier cases were resulting in trial courts  
deciding aboriginal rights cases on insufficient evidence. The Province submits the  
decision is directly applicable to this case where the sufficiency of the claimant’s  
evidence is very much in issue.  
[547] Mitchell was a Mohawk chief who claimed a cross-border exemption from  
custom duties based on an aboriginal ancestral right to bring goods across the St.  
Lawrence River. The trial judge found an aboriginal right to trade across the river  
despite conceding that there was “little direct evidence”. The relevant evidence in  
support of the claim consisted of an archaeological unearthing of a single artifact  
along with some tangential evidence of east-west trading amongst aboriginal  
groups.  
[548] The Supreme Court in reviewing the decision in Mitchell took a generous  
approach to the issue of admissibility. But when it came to the issue of weight, it  
rejected any presumption of weight in favour of the claimants. McLachlin C.J.C.  
concluded that aboriginal claims should “not negate the operation of general  
evidentiary principles” and that:  
While evidence adduced in support of aboriginal claims must not be  
undervalued, neither should it be interpreted or weighed in a manner that  
fundamentally contravenes the principles of evidence law, which, as they  
496  
The same, p. 546.  
Page: 233  
relate to the valuing of evidence, are often synonymous with the ‘general  
principles of common sense’.497  
[549] The Mitchell decision suggests that evidence that is tenuous and scanty will  
be insufficient for the purposes of proving an aboriginal rights claim. It is worth  
quoting McLachlin, C.J.C.’s decision at length:  
There is a boundary that must not be crossed between a sensitive  
application and a complete abandonment of the rules of evidence. As  
Binnie J. observed in the context of treaty rights, ‘[g]enerous rules of  
interpretation should not be confused with a vague sense of after-the-fact  
largesse’ (R. v. Marshall, [1999] 3 S.C.R. 456, 177 D.L.R. (4th) 513, at  
para. 14). In particular, the Van der Peet approach does not operate to  
amplify the cogency of evidence adduced in support of an aboriginal  
claim. Evidence advanced in support of aboriginal claims, like the  
evidence offered in any case, can run the gamut of cogency from the  
highly compelling to the highly dubious. Claims must still be established  
on the basis of persuasive evidence demonstrating their validity on the  
balance of probabilities. Placing ‘due weight’ on the aboriginal  
perspective, or ensuring its supporting evidence an ‘equal footing’ with  
more familiar forms of evidence, means precisely what these phrases  
suggest: equal and due treatment. While the evidence presented by  
aboriginal claimants should not be undervalued ‘simply because that  
evidence does not conform precisely with the evidentiary standards that  
would be applied in, for example, a private law torts case’ (Van der Peet,  
supra, at para. 68), neither should it be artificially strained to carry more  
weight than it can reasonably support. If this is an obvious proposition, it  
must nonetheless be stated.498  
[550]The Province submits that the evidence presented in support of the  
Defendants’ aboriginal rights claim is being “artificially strained to carry more  
weight than it can reasonably support”. The Province emphasizes McLachlin’s  
C.J.C.’s requirement that “[c]laims must still be established on the basis of  
persuasive evidence demonstrating validity on a balance of probabilities” and her  
comment that, as with other types of constitutional cases courts must “insist upon  
the careful preparation and presentation of a factual basis.”499  
497  
Mitchell v. M.N.R., note 468 above, pp. 408-409, para. 38.  
498  
The same, p. 409, para. 39.  
499  
MacKay v. Manitoba (1989), 61 D.L.R. (4th) 385 (S.C.C.), p. 388.  
Page: 234  
[551] In Mitchell, McLachlin C.J.C. rejected the trial judge’s drawing of an  
inference that a pre-contact north-south trade route existed, which the trial judge  
based on the fact that many of the early treaties between Mohawks and other  
aboriginal groups involved trade. McLachlin C.J.C then concluded that the trial  
judge committed a “clear and palpable error”, and that:  
... claims must be proven on the basis of cogent evidence establishing  
their validity on the balance of probabilities. Sparse, doubtful and  
equivocal evidence cannot serve as the foundation for a successful claim.  
With respect, this is exactly what has occurred in the present case. The  
contradiction between McKeown J.’s statement that little direct evidence  
supports a cross-river trading right and his conclusion that such a right  
exists suggests the application of a very relaxed standard of proof (or,  
perhaps more accurately, an unreasonably generous weighing of tenuous  
evidence). The Van der Peet approach, while mandating the equal and  
due treatment of evidence supporting aboriginal claims, does not bolster  
or enhance the cogency of this evidence. The relevant evidence in this  
case -- a single knife, treaties that make no reference to pre-existing  
trade, and the mere fact of Mohawk involvement in the fur trade -- can  
only support the conclusion reached by the trial judge if strained beyond  
the weight they can reasonably hold. Such a result is not contemplated  
by Van der Peet or s. 35(1).500  
[552] The Court goes on to assert that the standard in aboriginal cases should be  
one of “clear evidence”.501 McLachlin C.J.C. is clear that she is not suggesting that  
an aboriginal right “can never be established on the basis of minimal evidence,  
direct or otherwise, provided it is sufficiently compelling and supports the  
conclusions reached”.502 I agree with the Province her comments suggest that  
where there is little evidence, the evidence that does exist must be compelling in  
order to establish the aboriginal right. I accept the Province’s submission that this  
means “in the absence of quantity, the quality of the existing evidence becomes  
critically important and should be carefully scrutinized”.  
[553] In applying the criteria of “clear evidence”, McLachlin, C.J.C. went on to  
say:  
500  
Mitchell v. M.N.R., note 468 above, pp. 414-415, para. 51.  
501  
The same, p. 415, para. 52.  
502  
The same, pp. 410-411, para. 42.  
Page: 235  
This holding should not be read as imposing upon aboriginal claimants  
the ‘next to impossible task of producing conclusive evidence from pre-  
contact times about the practices, customs and traditions of their  
community’ (Van der Peet, supra, at para. 62). McKeown J. correctly  
observed that indisputable evidence is not required to establish an  
aboriginal right (p. 20). Neither must the claim be established on the  
basis of direct evidence of pre-contact practices, customs and traditions,  
which is inevitably scarce. Either requirement would ‘preclude in  
practice any successful claim for the existence’ of an aboriginal right  
(Van der Peet, supra, at para. 62). My conclusion, rather, is premised on  
the distinction between sensitively applying evidentiary principles and  
straining these principles beyond reason. In Adams, supra, this Court  
recognized a Mohawk right to fish on the St. Lawrence River, but this  
was on the basis of evidence that ‘clearly demonstrated’ (para. 46  
(emphasis added)) that fishing for subsistence in the area constituted a  
significant aspect of Mohawk life at the time of contact. Similarly, the  
recognition in Gladstone of an aboriginal right to engage in the  
commercial trade of herring spawn was founded firmly on an  
indisputable historical and anthropological record that ‘readily bears this  
out’ (para. 26), complemented by written documentation by European  
observers of such inter-tribal trade at the time of contact (para. 26-27).  
This Court concluded that the claimant had ‘provided clear evidence  
from which it can be inferred that, prior to contact, Heiltsuk society was,  
in significant part, based on such trade’ (para. 28). Here, no such ‘clear  
evidence’ of a trading practice north of St. Lawrence River exists and no  
comparable inference can be drawn.503  
Mitchell therefore confirms that, as held in Adams, events recorded in the contact  
period may be sufficient to permit reasonable inferences about pre-contact times.  
[554] I agree Mitchell establishes there is no third standard of proof that applies  
only to aboriginal claims. The onus rests squarely with the Defendants on a  
balance of probabilities. This Court must examine the evidence in its totality rather  
than in abstraction and bear in mind the Supreme Court of Canada’s statements in  
Mitchell. Claims must be proven on the basis of the “clear evidence” standard.  
Sparse and doubtful evidence cannot serve as a foundation for a successful claim.  
Small and relatively insignificant gaps and inadequacies in an otherwise  
compelling historical and evidentiary record cannot be translated into positive  
proof of Mi’kmaq presence.  
[555] As will be shown below, this case does not turn upon any nuanced  
refinement of the burden of proof. The parties submitted sufficient historical,  
503  
.The same, p. 415, para. 52.  
Page: 236  
archaeological and anthropological evidence to permit this court to arrive at a  
conclusion on the balance of probabilities.  
4.  
Contact Versus Occupation and Sovereignty  
(i) Mi’kmaq Activity Before European Occupation  
[556] Aboriginal peoples in the northeast were among the first to encounter  
European visitors to North America. Drs. Prins and von Genet were in agreement  
that initial contact probably occurred between European fishers and the Mi'kmaq in  
what is now the Atlantic Provinces at some unrecorded time in the early 1500s. The  
Defendants argue that rather than identifying a hidebound "date of contact," this  
Court should follow the lead of scholars who suggest it might be more useful to  
adopt a notion of an "early contact period" encompassing A.D. 1500-1600 (Dr.  
Prins) or A.D. 1497-1620 (Dr. von Gernet)504. This period corresponds roughly to  
that interval between the European re-discovery of North America in 1497 and  
initial attempts by Europeans to establish colonies in what are now the Atlantic  
Provinces of Canada (1608-1620), an interval also known as the “protohistoric”  
period.  
[557] The context of early European contact involved a seasonal migratory fishery  
along the coast of the Atlantic seaboard. European interest in land was initially to  
provide for the drying and curing of fish, vessel repair and maintenance. This  
brought casual contact and trade between Europeans and Aboriginals. This period  
was referred to at trial as the “first contact”, “initial contact”, “early contact” or  
“cultural contact” period.  
[558] The early date of "first contact" in eastern Canada adds to the evidentiary  
task faced by aboriginal claimants. As discussed previously, this task has been  
noted by the Supreme Court:  
In determining whether an aboriginal claimant has produced evidence  
sufficient to demonstrate that her activity is an aspect of a practice,  
custom or tradition integral to a distinctive aboriginal culture, a court  
should approach the rules of evidence, and interpret the evidence that  
exists, with a consciousness of the special nature of aboriginal claims,  
and of the evidentiary difficulties in proving a right which originates in  
times where there were no written records of the practices, customs and  
traditions engaged in. The courts must not undervalue the evidence  
504  
von Gernet Expert Report, pp. 66-67; Prins Expert Report, pp. 46-71.  
Page: 237  
presented by aboriginal claimants simply because that evidence does not  
conform precisely with the evidentiary standards that would be applied  
in, for example, a private law torts case.505  
[559] The Defendants assert that the evidence at trial supports a finding on a  
balance of probabilities that the Mi'kmaq frequented Newfoundland in the "early  
contact" period to hunt, trade, and possibly to wage war on other tribes. The  
Defendants rely upon the documents referred to by Anger and Martijn506,  
particularly the reports of Crignon, Alfonse, Lescarbot, Biard, Champlain, Archer  
and Brereton, which they contend point to Mi'kmaq familiarity with and  
frequenting of Newfoundland in the protohistoric, or early contact period.  
[560] The Supreme Court in Adams507 recognized that activities in the post-contact  
period that have continuity with activity pre-contact can be considered to meet the  
test for aboriginal rights. The Defendants ask this court to consider not only the  
activity in the post-contact period but also what is known of pre-contact Mi'kmaq  
society; that it was a marine-adapted society of foragers and gatherers with the  
technical capacity to engage in sea-travel. In addition the Defendants note the  
geographic proximity of Newfoundland to Cape Breton Island (approximately 100  
km, with each Island being visible from high ground on the opposite side). The  
Defendants argue this lends support to the inference that there were periodic  
voyages, pre-contact, to Newfoundland, since if the Mi'kmaq did not make sea  
voyages to lands visible on the horizon, they would be the only sea-going people in  
recorded history to show such a lack of curiosity or ambition. The Defendants note  
that the Mi'kmaq can be demonstrated to have made such voyages to the  
Magdalene Island (at a comparable distance).  
[561] The Defendants accept that plain meaning suggests “pre-contact” means that  
time before a given aboriginal society came in contact with Europeans. For the  
Mi'kmaq this date is unrecorded, yet thought to be around 1500. The earliest  
recorded contact of which there is a first-hand account is a visit to the Gulf of St.  
Lawrence by Jacques Cartier in 1534.  
505Van der Peet, note 468 above, para. 68.  
506  
See paras. 89-93 and 290-300 , above.  
507  
Note 468 above.  
Page: 238  
[562] The Supreme Court in Adams508 considered the situation of the Mohawk and  
their fishing activity in the St. Lawrence River Valley and found that:  
This general picture, regardless of the uncertainty which arises because  
of the witnesses' conflicting characterization of the Mohawks control and  
use over this area from 1603-1632, supports the trial judge's conclusion  
that the Mohawks have an aboriginal right to fish for food in Lake St.  
Francis. Either because reliance for food was a necessary part of their  
campaigns of war, or because the lands in this area constituted Mohawk  
hunting and fishing grounds, the evidence presented at trial demonstrates  
that fishing for food in the St. Lawrence River and in particular Lake St.  
Francis, was a significant part of the life of the Mohawks from a time  
dating from at least 1603 and the arrival of Samuel de Chaplain into the  
area.  
...  
The arrival of Samuel de Champlain in 1603, and the consequent  
establishment of effective control by the French over what would become  
New France, is the time which can most accurately be identified as  
"contact" for the purposes of the Van der Peet test".  
[563] Chief Justice Lamer in Adams further stated:  
No aboriginal group will ever be able to provide conclusive evidence of  
what took place prior to contact (and here the witnesses agree that it is  
unclear which aboriginal group was fishing in the fishing area prior to  
1603); evidence that at contact a custom was a significant part of their  
distinctive culture should be sufficient to demonstrate that prior to  
contact that custom was also a significant part of their distinctive  
culture.509  
[564] In Côté, the Court also adopted a date of contact of 1603 in relation to the  
Algonquin of Quebec and further contrasted the date of Champlain's "arrival" with  
the earlier "date of Jacques Cartier's visit." The Court stated:  
In this instance, similar to the situation of the geographically proximate  
Mohawks in Adams, I believe that the relevant time period for contact is  
best identified as the arrival of Samuel de Champlain in 1603, when the  
French began to assume effective control over the territories of New  
France.510  
508  
Adams, para. 45.  
509  
The same, para. 46.  
510  
Cote, note 468 above, para. 58.  
Page: 239  
[565] The Defendants contend the Court's reasoning in Adams and Côté suggests  
that "contact" under the Van der Peet test involves European occupation,  
administration or settlement: the beginning of "effective control" rather than mere  
presence. They note that in Adams the aboriginal rights of the Mohawk were  
confirmed despite academic and judicial consensus that they had not occupied the  
St. Lawrence Valley in pre-historic times.  
[566] In the present case, the Defendants submit there was a pre-contact Mi'kmaq  
presence in southwestern Newfoundland; that is, that portion of the west coast of  
the Island of Newfoundand south from Bay St. George to Cape Ray and Port aux  
Basques, thence east to the Burin Peninsula - and the adjacent interior. The Bay du  
Nord Wilderness Area encompasses much of the eastern section of these alleged  
traditional lands, "the East Country". The Defendants note the earliest recorded  
visit by a European explorer to any portion of southwestern Newfoundland is that  
of Jacques Cartier in 1536. On the return trip of his second voyage Cartier called  
briefly at Port aux Basques and the island of St. Pierre, not meeting any natives.  
[567] The Defendants accept that in the 16th century fishermen from France, and  
possibly Britain, Spain and Portugal, fished to an undetermined extent out of  
harbours in the eastern portion of the coast in question, at St. Pierre and at the tip of  
the Burin Peninsula ("the coast of Chapeau Rouge"). The Defendants submit that  
such seasonal visits to headland shore stations in Newfoundland cannot be  
regarded as constituting any measure of "effective control." They argue that, on  
the basis of Adams, this Court should conclude contact between Mi’kmaq and  
Europeans did not occur in southwestern Newfoundland until after the 16th century.  
[568] The Defendants submit that for southwestern Newfoundland the earliest  
possible date for settlement or administration by a European power (in this case,  
France) - the earliest conceivable beginning of the assumption of effective control  
by European standards - comes with the founding of the colony of Plaisance in  
1662. Even then, says the Defendants, French presence was concentrated at  
modern-day Placentia and Argentia, outside the Bay du Nord Wilderness Area.  
There is no indication that the French occupied, administered, controlled or even  
visited what is now the Bay du Nord Wilderness Area before, after, or during the  
period 1662-1713, contend the Defendants.  
Page: 240  
[569] Noting the Crown's attempts to place Mi'kmaq presence in Newfoundland  
well after the founding of Plaisance and to explain Mi'kmaq presence as motivated  
by the French, the Defendants submit academic consensus up to now has either  
accepted, or allowed for, the strong likelihood of Mi'kmaq arrival pre-dating the  
founding of Placentia.511  
[570] The Defendants contend British officials of the 1760s underestimated the  
degree to which the Mi'kmaq had been going back and forth from Cape Breton to  
Newfoundland.  
[571] The Defendants note Crown witnesses in the present case concentrated on a  
lack of clear evidence of year-round, permanent, and continuous occupancy of  
southwestern Newfoundland by the Mi'kmaq and interpreted gaps in the historical  
record as indicative of the Mi'kmaq being absent from Newfoundland. The  
Defendants argue this same approach should be applied to gaps in the record as to  
European presence in southwestern Newfoundland.  
[572] The Defendants submit the Supreme Court in Adams also recognized that  
aboriginal rights are as much rooted in custom and tradition as they are rooted in a  
connection with land, quoting Chief Justice Lamer:  
To understand why aboriginal rights cannot be inexorably linked to  
aboriginal title it is only necessary to recall that some aboriginal peoples  
were nomads, varying the locations of their settlement with the season  
and changing circumstances. That this was the case does not alter the fact  
that nomadic peoples survived through reliance on the land prior to  
contact with Europeans and, further, that many customs, practices, and  
traditions of nomadic peoples that took place on the land were integral to  
their distinctive cultures. The aboriginal rights recognized and affirmed  
by s.35(1) should not be understood or defined in a manner which  
excludes some of those the provision was intended to protect.  
Moreover, some aboriginal peoples varied the location of their settlement  
both before and after contact. The Mohawks are one such people; the  
facts accepted by the trial judge in this case demonstrate that the  
511  
Citing, Ingeborg Marshall. A History and Ethnography of the Beothuk (1996); Charles Martijn.  
“Historical Review” in Netuklek (On the Country); Miawpukek Mi’kmamawey Mawi’omi Land claim and Self-  
Government Submission. (1996), 5.3.3: pp. 8-10; Charles A. Jartijn. “An Eastern Mi’kmaq Domain of Islands”  
(1989), supporting documents for the Expert of Report of Dr. Alexander von Gernet vol. 25; Charles A. Martijn. “An  
Eastern Mi’kmaq Domain of Islands” (1989), supporting documents for the Expert of Report of Dr. Alexander von  
Gernet vol. 25, tab 233; Ralph Pastore. Newfoundland Micmacs: a History of their Traditional Life (1978),  
supporting documents for the Expert of Report of Dr. Alexander von Gernet vol. 32, tab 298.  
Page: 241  
Mohawks did not settle exclusively in one location either before or after  
contact with Europeans. That this is the case may (although I take no  
position on this point) preclude the establishment of aboriginal title to the  
lands on which they settled; however, it in no way subtracts from the fact  
that, wherever they settled before or after contact, prior to contact the  
Mohawks engaged in practices, traditions or customs on the land which  
were integral to their distinctive culture.512  
[573] The Defendants contend the reasoning in Adams cited above resonates of  
McLachlin J.'s dissent in Van der Peet, where she stated:  
I cannot agree with the Chief Justice, however, that it is essential that a  
practice be traceable to pre-contact times for it to qualify as a  
constitutional right. Aboriginal rights find their source not in a magic  
moment of European contact, but in the traditional laws and customs of  
the aboriginal people in question.  
...  
What must be established is continuity between the modern practice at  
issue and a traditional law or custom of the native people. Most often,  
that law or tradition will be traceable to time immemorial; otherwise it  
would not be an ancestral aboriginal law or custom. But date of contact is  
not the only monument to consider. What went before and after can be  
relevant too.513  
[574] The Defendants note that, like the Mohawk in what is now the Province of  
Quebec, and like all the native peoples known to have frequented Newfoundland  
and Labrador, the Mi'kmaq were a semi-nomadic society both before and after  
contact. Moreover, they say, the marine adaptions of the Mi'kmaq were such that  
their society was one of the more mobile of North American native peoples.  
[575] The Defendants accept that, like all aboriginal cultures in Canada, Mi’kmaq  
society and economy underwent change (even to the extent of catastrophic  
upheaval) post-contact. But they note expert and lay witnesses agreed that from  
early contact through contemporary times the Mi'kmaq of Newfoundland have  
remained distinctive as a hunter-gatherer society, distinguished from the emerging  
European-dominated codfishing society by its degree of dependence on the land  
and its resources for subsistence. The Defendants note this distinction, and  
dependence, continued even after purely subsistence activities were supplemented  
by a modest cash economy (fur-trapping, woodswork, and guiding). That Mi'kmaq  
512  
Adams, paras. 27-28.  
513  
Van der Peet, para. 247.  
Page: 242  
culture and identity survived in Newfoundland was in large part because of a  
distinctive relationship to the land and its faunal resources, contend the Defendants.  
[576] The Defendants submit they meet the test for aboriginal rights as presented  
in Van der Peet, Adams, Mitchell and Côté in that the Defendants and their  
ancestors have maintained a customary and traditional aboriginal society and  
economy, that being a reliance on land for hunting and fishing and sustenance,  
having origins in and continuity with "pre-contact" times.  
(ii) Mikmaq Activity Before British Sovereignty  
[577] As an alternative argument, the Defendants assert that they have aboriginal  
rights because they have established the Mi’kmaq had occupation of the land in  
question before Europeans acquired sovereignty.  
[578] The Defendants refer to Delgamuukw, where with respect to the issue of  
sovereignty, Lamer C.J. stated:  
...I conclude that Aboriginals must establish occupation of the land from  
the date of the assertion of sovereignty in order to sustain a claim for  
aboriginal title. McEachern C.J. found, at pp.233-34 [W.W.R; p.88  
C.N.L.R.], and the parties did not dispute on appeal, that British  
sovereignty over British Columbia was conclusively established by the  
Oregon Boundary Treaty of 1846. This is not to say that circumstances  
subsequent to sovereignty may never be relevant to title or compensation;  
this might be the case, for example where native bands have been  
dispossessed of traditional lands after sovereignty.514  
[579] The Defendants note the Supreme Court in Delgamuukw recognized that  
aboriginal rights and aboriginal title both serve to reconcile the prior presence and  
prior social organization of aboriginal peoples in North America with the arrival of  
Europeans. The Court also stated that the test for aboriginal rights and aboriginal  
title share broad similarities:  
This difference between aboriginal rights to engage in particular  
activities and aboriginal title requires that the test I laid down in Van der  
Peet be adapted accordingly. I anticipated this possibility in Van der Peet  
itself, where I stated that (at para 74):  
514  
Delgamuukw, para. 145.  
Page: 243  
Aboriginal rights arise from the prior occupation of  
land, but they also arise from the prior social  
organization and distinctive cultures of aboriginal  
peoples on that land. In considering whether a claim to  
an aboriginal right has been made out, courts must look  
at both the relationship of an aboriginal claimant to the  
land and [emphasis in original] at the practices, customs  
and traditions arising from the claimant's distinctive  
culture and society. Courts must not focus so entirely on  
the relationship of aboriginal peoples with the land that  
they lose sight of the other factors relevant to the  
identification and definition of aboriginal rights.  
[Emphasis added by Lamer C.J.C.].  
Since the purpose of s. 35(1) is to reconcile the prior presence of  
aboriginal peoples in North America with the assertion of Crown  
sovereignty, it is clear from this statement that s. 35(1) must recognize  
and affirm both aspects of that prior presence - first, the occupation of  
land, and second, the prior social organization and distinctive cultures of  
aboriginal peoples on that land. To date the jurisprudence under s. 35(1)  
has given more emphasis to the second aspect. To a great extent, this has  
been a function of the types of cases which have come before this Court  
under s. 35(1) - prosecutions for regulatory offences that, by their very  
nature, proscribe discrete types of activity.  
The adaptation of the test laid down in Van der Peet to suit claims to title  
must be understood as the recognition of the first aspect of that prior  
presence. However, as will now become apparent, the tests for the  
identification of aboriginal rights to engage in particular activities and for  
the identification of aboriginal title share broad similarities. The major  
distinctions are first, under the test for aboriginal title, the requirement  
that the land be integral to the distinctive culture of the claimants is  
subsumed by the requirement of occupancy, and second, whereas the  
time for the identification of aboriginal rights is the time of first contact,  
the time for the identification of aboriginal title is the time at which the  
Crown asserted sovereignty over the land.515  
[580] The present case is concerned with tests for aboriginal rights, as opposed to  
aboriginal title. The Defendants note, however, both are based on the reconciling  
of British sovereignty with the pre-existing social organization of aboriginal  
peoples and their prior occupation of what is now Canada.  
[581] The tests for aboriginal rights and aboriginal title are delineated and  
explained in Delgamuukw. The threshold date for aboriginal rights is "contact"  
515  
The same, paras. 141-42.  
Page: 244  
whereas the threshold date for aboriginal title is sovereignty. The Defendants  
submit it is paradoxical and makes no sense in law that an aboriginal group  
asserting aboriginal title (which is a broader and more comprehensive grouping of  
aboriginal rights) will have a much later, and probably easier, threshold test to  
meet.  
[582] The Defendants refer to Professor Brian Slattery’s comments on the question  
of sovereignty versus contact:  
We may observe that the Court's choice of threshold date is somewhat  
puzzling. In British imperial law, the simple fact of 'contact' between  
Crown and indigenous peoples had no legal significance. Contact did not  
give indigenous peoples any rights in British law, nor did it have any  
legal impact on indigenous systems of laws and rights. Contact was a  
legally innocent event. It was only when the Crown acquired jurisdiction  
over a territory that the issue of the rights of the local inhabitants arose in  
British law. Only at this point could the doctrine of aboriginal rights  
come into play. So, while it would not be impossible [emphasis in  
original] for the doctrine to recognize only customary rights that existed  
at some prior date of ‘contact’, in practice this would be a strange and  
inconvenient way for the doctrine to operate. It would have made it  
virtually impossible for British officials on the spot at the time to know  
which asserted rights they should respect, without a battery of historians  
and anthropologists at their elbows. Not surprisingly, there seems to be  
no historical evidence that imperial law functioned in this manner.  
In the subsequent case of Delgamuukw, the Court ruled that the threshold  
date for aboriginal title was the time of Crown sovereignty rather than  
contact. The court aptly observed that, since aboriginal title was a burden  
on the Crown's underlying title, it did not make sense to speak of its  
existence prior to the date of sovereignty. However, the Court did not  
overrule the Van der Peet criterion as it applies to specific rights. This  
gives rise to an odd discrepancy. Suppose that an aboriginal group of  
hunters moved into a certain area after the date of contact but  
substantially before the date of Crown sovereignty.* Under current law,  
the group would apparently be precluded from showing an aboriginal  
right to hunt in the area; however, paradoxically, it might be able to  
establish aboriginal title there, despite the fact that aboriginal title would  
include hunting rights. In effect, the test for the lesser right is more  
onerous than for the greater right. The anomaly is compounded where  
Group A occupied the area at the time of contact but had been displaced  
by Group B by the time of sovereignty. Here, Group A could show a  
specific aboriginal right to hunt in the area but not aboriginal title. By  
contrast, Group B could show aboriginal title but not a specific right to  
hunt. Such complications suggest the need [for?] a common historical  
Page: 245  
baseline for establishing both aboriginal title and specific aboriginal  
rights. [Emphasis in the original.]516  
[Prof. Slattery’s fn 74] In some parts of Canada, contact took place long  
before the date that sovereignty was asserted or achieved. In the interval  
there was often considerable movement among aboriginal groups, as  
people migrated from one area to another in response to such factors as  
war, internal strife, trade opportunities, and changing ecological  
conditions.  
[583] Rather than "contact" as the threshold test for aboriginal rights, Professor  
Slattery advocates that specific aboriginal rights can be proven in either of two  
ways:517  
(1) Historical evidence showing that the right was a recognized strand in  
the fiduciary relationship established at the time when the Crown  
assumed governmental responsibility for the particular group in question  
(the ‘transition date’) . The evidence could consist of official practice,  
legislation, negotiations or treaties, and it could emanate either from the  
era when the Crown assumed responsibility, or from periods before or  
after that era, so long as it tended to show the basic terms of the  
relationship at the transition date.  
(2) Proof that the right is grounded in practices, customs or traditions  
that were integral to the distinctive culture of the specific aboriginal  
group at the transition date.  
The second criterion can be linked to the first in the following way. If it  
can be proven that an activity was integral to the culture of the aboriginal  
group, it is presumed to have formed an incident in the fiduciary burden  
assumed by the Crown, even in the absence of specific historical  
evidence to this effect.  
[584] The Defendants submit that it was only when the British Crown assumed  
governmental responsibility for the native peoples of Newfoundland that such a  
"transition" was effected. Further, contend the Defendants, as the Courts have  
accepted that dates for both contact and sovereignty vary across Canada according  
to specific local circumstance, the issue arises as to when the British may be said to  
have assumed sovereignty (rather than merely having proclaimed this) over the  
south and west coasts of Newfoundland.  
516  
Brian Slattery “Making Sense of Aboriginal and Treaty Rights” (2000), 79 Can. Bar Rev. 196, 217.  
517  
At p. 218.  
Page: 246  
[585] The Defendants submit that the earliest date at which the British Crown can  
be said to have assumed governmental responsibility for either the native peoples  
of Newfoundland or the southwestern coast of Newfoundland (and the coasts  
adjacent to the Bay du Nord Wilderness Area) is 1763. They note European  
settlement was officially discouraged, difficult on that account, and had in fact  
been declared to be illegal in 1698. The Defendants contend that, other than  
codification of customary practices of the migratory fishery, Newfoundland was  
not governed until 1729, with the appointment of the first naval governor. They  
note that until 1787 there was no resident civil, religious, military nor judicial  
authority west of Placentia Bay. Up to 1763 there were no regular naval patrols of  
the south and west coast of Newfoundland and before that only one naval patrol  
was recorded in 1734.  
[586] With respect to governmental assumption of authority over native peoples in  
Newfoundland, reports of commodores of the fishing fleet and, after 1729, of  
Governors of Newfoundland, had made regular, if perfunctory replies to a query  
contained in their instructions as to whether fishermen or settlers had traded with  
natives. From Governor Henry Osbourne's commission (1729):  
25. Whether any Trade is carried on for Beaver... ? What Quantities they  
have taken this last Winter and whether they have any Traffick with the  
Indians?518  
[587] This in marked contrast to the Royal Instructions to other British Governors,  
such as to the Governor of Nova Scotia, who from 1719 was enjoined in his  
instructions to "cultivate and maintain strict Friendship and good Correspondence  
with the Indians inhabiting the said Province...".519 In 1763 the commission of  
Newfoundland Governor Thomas Graves directed the Governor to go beyond  
merely recording trade with native peoples to the encouragement of trade with  
those residing in or resorting to the colony:  
8: You are also to enquire and report to Us, by Our Commisioners for  
Trade & Plantations, whether any of what further Establishment may be  
necessary to be made, or Forts erected in any part of Newfoundland, or  
the other Islands or Territories under your Government, either for the  
Protection of the Fishery, the Security of the Country, or the establishing  
518  
Commission of Governor Henry Osbourne, CD 344.  
519  
Letters patent to the Governor of Nova Scotia, CD 1091.  
Page: 247  
and carrying on a Commerce with the Indians resideing in or resorting to  
the said Islands, or inhabiting the coast of Labradore.  
9. You are not to permit the Subjects of any foreign Prince or State what  
ever to carry on any Commerce with the said Indians, and to use Your  
best endeavours to conciliate their Affections, and induce them to trade  
with Our Subjects, reporting to Us, by Our Commissioners for Trade and  
Plantations, the best Account you can obtain of the Number of the said  
Indians, the places they frequent, the Nature and extent of the Commerce  
that is or may be carried on with them, and how the same may, in Your  
Opinion be further extended and improved520  
[588] The Defendants submit that the sui generis nature of aboriginal rights in  
Canadian common law provides sufficient flexibility to adopt Professor Slattery's  
approach in analyzing aboriginal rights. The Defendants note the common law on  
aboriginal rights is a body of law that is evolving and developing over time and  
that claimants who cannot prove exclusive occupancy of land may be able to prove  
aboriginal rights:  
In my opinion, this accords with the general principle that the common  
law should develop to recognize aboriginal rights (and title when  
necessary) as they were recognized by de facto practice or by the  
aboriginal system of Governance. It also allows sufficient flexibility to  
deal with this highly complex and rapidly evolving area of the law.521  
[589] The Defendants quote Professor Brian Slattery:  
In a nutshell, the doctrine of aboriginal rights is a body of Canadian  
common law that defines the constitutional links between aboriginal  
peoples and the Crown and governs the interplay between indigenous  
systems of law, rights and government (based on aboriginal customary  
law) and standard systems of law, rights and government (based on  
English and French law). The doctrine of aboriginal rights is a form of  
‘inter-societal’ law, in the sense that it regulates the relations between  
aboriginal communities and the other communities that make up Canada  
and determines the way in which their respective legal institutions  
interact.  
....  
The doctrine of aboriginal rights has two main sources. The first is a  
distinctive body of custom generated by the intensive relations between  
indigenous peoples and the British Crown in the seventeenth and  
520Commission of Governor Thomas Graves, CD 510.  
521Delgamuukw, note 468 above, para. 159.  
Page: 248  
eighteen centuries. This body of custom coalesced into a branch of  
British imperial law as the Crown gradually extended its protective  
sphere in North America. Upon the emergence of Canada as an  
independent federation, it became part of the fundamental Canadian  
common law that underpins the Constitution.  
The second source of the doctrine of aboriginal rights consists of basic  
principles of justice. These principles have broad philosophical  
foundations, which do not depend on historical practice or the actual  
tenor of Crown relations with aboriginal peoples. They provide the  
doctrine of aboriginal rights with inner core of values and mitigate the  
rigors of a strictly positivistic approach to law. Basic principles of justice  
have always informed the common law doctrine of aboriginal rights to  
some extent. However, in modern times, their influence has been  
enhanced by the entrenchment of aboriginal and treaty rights in s.35(1) of  
the Constitution Act, 1982.522  
[590] The Defendants submit one distinctive custom of the Mi'kmaq, respected in  
relations with the French, is a liberty to hunt over and gather from the land. The  
French regime in what is now Atlantic Canada did not make the Mi'kmaq subjects  
or extend French law to the Mi'kmaq. As W. J. Eccles has noted, French assertions  
of criminal jurisdictions over Indians in New France remained largely theoretical,  
unsubstantiated by actual enforcement due to the fact that they were dependent on  
the friendship or at least neutrality of the neighboring Indian Nations.523  
[591] In Connolly v. Woolrich and Johnson et al,524 Monk J. in confirming the  
validity of a marriage according to Cree customary law stated:  
Neither the French Government, nor any of its colonists or their trading  
associations, ever attempted, during an intercourse of over two hundred  
years, to subvert or modify the laws and usages of aboriginal tribes,  
except where they had established colonies and permanent settlements,  
and then only by persuasion.  
522Brian Slattery, “Making Sense of Aboriginal and Treaty Rights”, note 516 above, pp. 198-99.  
523  
W. J. Eccles The Canadian Frontier 1534 - 1760 (1969), pp. 77-78 [Defendants’ Book of Authorities,  
vol. 1, Tab 7].  
524  
(1867) Superior Court of Quebec No. 902, p. 203.  
Page: 249  
[592] Many writers during the French regime in Atlantic Canada (1600-1763)  
commented on the Mi'kmaq affinity for the "chase" and the value Mi’kmaq placed  
on their liberty to hunt and gather.525  
[593] The Defendants submit that on a balance of probabilities Mi'kmaq were  
hunting and gathering in Newfoundland prior to the European re-discovery of  
North America, prior to British sovereignty over Newfoundland being recognized  
by the French in 1713, beyond question before British authority was asserted either  
over native peoples or the southwestern coast of Newfoundland, and considerably  
prior to the extension of British judicial authority and protection over what is now  
the Bay du Nord Wilderness Area. The Defendants contend that, as a  
hunter-gatherer society, it is reasonable to assume that the Mi'kmaq exercised and  
imparted their customs and laws regarding hunting and gathering into their activity  
and way of life in Newfoundland. The Defendants note among contemporary  
Mi'kmaq the term Netukulimk is used to refer this body of such custom. The term  
embodies the Mi'kmawey concept of using the natural bounty of the Creator for  
personal subsistence, as well as for the support of the family and the community as  
a whole - NetukulimKewe'l refers to the practices and customs, a code of conduct,  
governing the way Netukulimk is exercised. While it is not possible to trace the  
pedigree of a particular term or concept in a pre-literate society, observers have  
noted the importance not only of hunting practices in Mi'kmaq society but of  
customary codes of conduct, ritual practices, and territorial observances. In 1922  
Frank Speck in reference to Mi'kmaq hunting grounds in Newfoundland stated:  
"The districts are termed netueylo'mi, (my hunting ground) the same as in Cape  
Breton",526 a term similarly derived from the verb to hunt. The Defendants submit  
the Mi'kmaq observed and practiced customary law relating to hunting and  
gathering practices while in Newfoundland in the same manner as they did in other  
areas of Atlantic Canada. The laws and customs developed and evolved as the  
circumstances and context of Mi'kmaq reality changed. The Defendants contend  
that, in addition to any rights or recognition of customary Mi'kmaq laws and  
practices relating to hunting and gathering included in the Peace and Friendship  
Treaties, such customary laws and practices became, in the words of Professor  
525  
See, for example, Father Chrestien Le Clerq. New Relation of Gaspesia (1691) CD 127, pp. 274-287;  
Abbé Maillard, An Account of the Customs and Manners of the Micmakis and Maricheets Savage Nations &c (1758)  
CD 439, pp. 80-96; Father Antoine Gaulin to d’Aguesseau (1720) CD 311, p. 115.  
526  
Frank Speck, Beothuk and Micmac, Miscellaneous Series No. 22, Indian Notes and Monographs, Heye  
Foundation, New York: Museum of the American Indian, p. 130.  
Page: 250  
Slattery, "part of the fundamental Canadian common law that underpins the  
Constitution.”527  
[594] The Defendants argue that, as previously stated, the Supreme Court's  
reasoning in Adams and Côté suggests that "contact" under the Van der Peet test  
involves European occupation, rather than mere presence, and some degree of  
effective control over an area. They submit that in effect the Supreme Court  
employed a test in Adams and Côté with striking similarities to that advocated by  
Professor Slattery. In the present case, say the Defendants, we are concerned with  
the date of British sovereignty as opposed to French sovereignty (as in Adams and  
Côté) because the French never assumed effective control over southwestern  
Newfoundland and there was an interval of a half century between the initial  
assertion of British sovereignty over southwestern Newfoundland and the  
beginning of settlement and effective control. Moreover the concept of aboriginal  
rights stems, in part, from British Common Law.  
[595] In Delgamuukw the parties agreed on a date of assertion of sovereignty and  
the case does not elaborate on or offer any guidance as to what constitutes an  
assertion of sovereignty. The Defendants submit jurisprudence and scholarly  
opinion suggest that assertion of British sovereignty requires more than the raising  
of a flag over a territory or the making of broad declarations of ownership in the  
name of the Monarch. The Defendants argue it is important to make a distinction  
between the initial declaration of sovereignty and its perfection over time. This  
point was made in Mabo v. Queensland528:  
...In particular, contemporary international law would require a degree of  
actual occupation of a ‘discovered’ territory over which sovereignty was  
claimed by settlement and it is scarcely arguable that the establishment  
by Phillip in 1788 of the Penal camp at Sydney Cove constituted  
occupation of the vast hinterland of eastern Australia designated by his  
commissions.  
[596] The Defendants submit it is noteworthy that the year of 1787, notes in  
paragraph 586 above as the earliest year for the establishment of resident civil,  
religious, military or judicial authority west of Placentia Bay, comes decades after  
527  
Brian Slattery, note 522 above.  
528  
(1992), 175 C.L.R. , p. 48, para. 3.  
Page: 251  
the first British voyage to (and claiming of) Australia by Captain Cook and well  
after the "discovery" of the continent by the Dutch.  
[597] The Defendants also rely on the comments of Professor Kent McNeil where  
he states:529  
The efficacy of voyages of discovery and symbolic acts as means of  
acquiring sovereignty in the seventeen century is extremely doubtful,  
both in international and colonial law. While the European colonizers all  
relied on those means to support their own pretensions, they tended to  
ridicule such flimsy claims when presented by their rivals. Clearly there  
was no established state practice - even among European nations - that  
would validate these means of acquiring sovereignty in international law.  
Similarly, in British colonial law acquisition of sovereignty by settlement  
was based on the concept of occupancy, which required effective taking  
of possession.  
(iii) British Sovereignty over Southwestern Newfoundland  
[598] The Defendants note Newfoundland as a territory is considered to have been  
acquired by the British through settlement,530 even though a declaration of  
sovereignty was made on behalf of England against other European nations as early  
as Sir Humphrey Gilbert's voyage of 1583. The Defendants argue such a  
declaration, while within the Crown's prerogative, does not meet international legal  
criteria for acquiring territory unless further acts of conquest, cession or settlement  
accompany it.531 Moreover, in the case of Newfoundland, the Island was  
acknowledged to be outside the British colonial system, a fishery rather than a  
colony in the usual sense, say the Defendants. They note settlement was officially  
prohibited until colonial status was belatedly granted in 1824.  
[599] The Defendants submit such English settlement as did exist was confined to  
the east coast of Newfoundland prior to 1763. They note many scholars reviewing  
this context have suggested that Newfoundland, although clearly part of His  
Majesty's Dominions in a broad sense, was not even considered a proper colony in  
529  
Kent McNeil, “Sovereignty and the Aboriginal Nations of Ruperts Land”, Manitoba History (1999), p.  
3.  
530  
K McNeil, Common Law Aboriginal Title (1989), pp. 117-118.  
531  
Relying upon De la Penha v. Newfoundland (1984), 46 Nfld. & P.E.I.R. 26, (Nfld. T.D.), para. 56, and  
McNeil, note 512 above, at 133.  
Page: 252  
1763 at the time of the Royal Proclamation.532 Although the Commander-in-Chief  
on the Newfoundland Station, posted to protect the summer fishery on the east  
coast from 1675, was further appointed Governor by the Crown after 1729, until  
1817 the Governor and civil establishment were only resident during the fishing  
season. During the 18th century, note the Defendants, Newfoundland had no civil  
establishment, no council or assembly and only a rudimentary, seasonal, system of  
justice up to 1791.  
[600] The settlement of Newfoundland was impeded by obstacles laid down in the  
"Act to Encourage the Trade to Newfoundland", enacted in 1698, which declared  
the Island to be a seasonal fishing colony rather than a settled colony. The  
Defendants contend that even as late as 1763 King William's Act was a virtual  
constitution for Newfoundland.533 The policy implicit in that statute was reiterated  
by the Board of Trade on June 8, 1763, in their report to the King leading up to the  
issue of the Proclamation:  
As no such regular civil Government is either necessary or indeed can be  
established, where no perpetual Residence or planting is intended; it will  
be sufficient to provide for the free Trade of all Your Majesty's Subjects  
under such Regulations and such Administration of Justice as is best to  
that End. Such We apprehend to be the case of Newfoundland, where  
temporary Fishery is the only object.... .534  
[601] The Defendants submit English settlement was restricted to the east coast of  
Newfoundland and cannot be demonstrated to extend west of Placentia prior to  
1763. They say continuous English settlement of Fortune Bay, the coasts in closest  
proximity to the Bay du Nord Wilderness Area, began in 1782. The first official in  
this area was appointed in 1787 (a Justice of the Peace, still returning to England  
after each fishing season). The Defendants note the testimony of historian Robert  
Cuff:  
Q: You say that things, however, changed in 1763. Can you tell us why  
that date is important?  
A: Well, if you step back for a minute to 1729 when the first governor of  
Newfoundland was appointed, Henry Osborne, he did a number of things  
532  
See, for example, B. Slattery, “The Land Rights of Indigenous Canadian Peoples”, (D. Phil. Thesis,  
Oxon, 1979).  
533  
Brian Slattery, note 516 above.  
534  
The same, p. 251.  
Page: 253  
to establish civil government on the Island, establish civil government on  
the English shore in particular, one of which was to divide the colony  
into six districts, the extension of his six districts to the west, if you like.  
There were districts-Bonavista was the northern most district and the  
southern most and western most district was Placentia, which district he  
defines as extending to the west side of Placentia Bay. From 1729 up  
until 1763, the governors of Newfoundland made very few efforts to  
either extend naval patrols or extend the Government of Newfoundland  
west of the west side of Placentia Bay. After 1763 ... there was an  
increased effort by the governors of Newfoundland to once again chart,  
obtain knowledge of and ultimately extend the administration of  
Newfoundland west of Placentia Bay, west of Placentia Bay to Cape Ray.  
This is-1763 is a signal event in the history of Newfoundland. It's also a  
signal milestone in the history of, well, British colonial history in North  
America. After the Seven Years' War, the English obtained many of the  
former French possessions in North America by virtue of having defeated  
the French in the Seven Years' War, however, they lost the war in  
Newfoundland, they won it in Europe, and there was a real effort by the  
English to say, all right, we've got this colony, we've got a substantial  
naval establishment which was built up during the war, we're going to  
apply some increased vigor to the way in which we govern our overseas  
possessions. This increased vigor is really, most historians would look to  
it for instance as being one of the major causes of the American  
Revolution. The Seven Years' War and the Treaty of Paris was not just  
about Newfoundland, but the change of attitude, the determination to  
take some actions which would affirm British Sovereignty over these  
territories can be traced to the year 1763 and the end of the war and the  
Treaty of Paris ...  
Q: Okay. You do however indicate that, in terms of settlement of Fortune  
Bay, that you identify probably a date of 1780 as the date when actually  
Fortune Bay became "settled." What were your reasons for selecting that  
date of 1780? Or I think maybe you even give a range of dates.  
THE COURT:  
Q: '83 to '87.  
...  
A: Well, one of the reasons that I would look at that range is that, is the  
establishment of Waldron and Young at Harbour Breton, which is a firm  
that continued to be active under different names in the area for another,  
oh, 60 years or so. Another would be taking the date of 1763 as when a  
number of people moved in from St. Pierre into various sites within the  
bay, taking 20 years from that point as being a generation. Because we  
don't know very much about the names of these people, about, well,  
because there's not a lot of records of these people, we can't say with  
certainty that there were people, for instances, at Harbour Breton or at  
Conaigre in 1783 who had been there in 1763, but given some of the  
family names, in particular Grand Bank, it seems likely that there are  
some threads of continuity between 1763 and 1783, and so if you take a  
Page: 254  
generation, if you like, from 1783, which is what you require I think to  
establish settlement. You have to establish some sort of generational  
continuity. I don't think that continually sending crews out to a-I don't  
think sending crews out to a seasonal fishing station, crews which consist  
entirely or almost entirely of males, would be, would get you into  
anybody's definition of settlement. So taking 20 years from 1763, that  
brings you to 1783. By 1787, we know very little actually about the  
activities of the firm of Clarke and Young at Harbour Breton in the  
1770s, but by 1787 the firm is there. They're in premises or they're in,  
they're occupying shore space that Cook identifies them as having  
occupied in 1765, and from the documents it can be seen that these  
people are supplying individuals who are probably their former servants;  
that is, people who have been brought out for summer seasons or for 18  
months at a time, in some of the harbours around Harbour Breton. It's  
1787 that the number of women and children in the recorded population  
in Fortune Bay beings to approach the number of seasonal fishing  
servants. I think that the presence of women and children and families is  
necessary to establish a settlement that has any potential for succeeding  
itself, for growing and expanding, and this is a handy date and here is a  
date by which you can say, all right. Harbour Breton, for instance, is still  
fundamentally a seasonal fishing station occupied by fishing servants, but  
if you look at the bay as a whole, there are as many women and children  
in the bay as there are seasonal fishing servants who are over-wintering  
for one season or another. The population of the bay is still much less the  
purely seasonal, migratory ship fishery, ship fishing population, but you  
have, you begin to have something you can call a settlement, and finally  
in 1787 you have the agent of Clarke and Young, John Waldron, being  
appointed Justice of the Peace and Naval Officer for Fortune Bay, which  
is the first evidence of any regular or established governmental presence  
in the bay.  
[602] The Defendants contend the earliest date it can be argued that British  
sovereignty was established over southern and western Newfoundland is 1713,  
based on the international recognition of British claims to the Island of  
Newfoundland in the Treaty of Utrecht. Given that settlement did exist in some  
areas, notwithstanding a ban on settlement, the Defendants submit the most  
appropriate test to be applied in the Newfoundland claim is that of effective  
occupation and use of a defined territory at the point of British settlement. The  
Treaty of Utrecht involved France ceding territorial rights and claims in  
Newfoundland to Britain. The Defendants accept this represents recognition in the  
international sphere of Britain's territorial claims and rights in Newfoundland.  
However actual sovereignty had to be perfected by actual occupation, say the  
Defendants.  
Page: 255  
[603] The Defendants rely on De la Penha v. Newfoundland535, where the  
Supreme Court of Newfoundland had to consider a land grant in the vicinity of  
Rigolet, Labrador, from a descendant of a Royal grant holder. In 1697, Rodrigo de  
la Penha, a freeman of Rotterdam, received a grant to territory in Labrador from  
William of Orange (subsequently William III of England). The direct male ancestor  
of the grantee, Dr. De la Penha, a resident of the U.S.A., claimed title to this  
territory as against Canada and Great Britain.  
[604] Chief Justice Hickman concluded that,without actual occupation through  
settlement, sovereign declarations or grants are meaningless. He held, at p. 35,  
citing Oppenheims International Law (8th ed.), that "territory must really be taken  
into possession and with established administration and not just fictitious  
occupation such as a flag-raising". He concluded that British sovereignty over  
Labrador commenced no earlier than the Treaty of Paris, executed on February 10,  
1763, when the territory was ceded by France. Further, he stated in barring De la  
Penha’s action:  
The illustrations in history books often show courageous and resolute  
adventurers firmly entrenching a flag on some barren soil, but such an  
act, standing alone, does not necessarily constitute taking possession of  
the land so depicted..  
It is a firmly established principle of international law that the acquisition  
of sovereignty over a territory does not occur merely by making a claim,  
no matter how formal the manner by which such claim was made.536  
[605] The Defendants submit it is clear from the above reasoning that after 1713,  
when British sovereignty was recognized by France, actual occupation of  
Newfoundland, especially the southwest coast (other than seasonal use for fishing)  
was required for effective sovereignty. In his testimony, Dr. Janzen had this to say  
about issues of sovereignty:  
Q: You mentioned the surveys of the southwest coast in the 1714-1715  
was an attempt to establish British sovereignty over the area?  
A: No, it wasn't actually of the southwest coast. It was the area from  
Placentia Bay as far as Cape la Hune.  
Q: So south coast?  
535  
(1984), 46 Nfld. & P.E.I.R. 26 (Nfld. T.D.).  
536  
The same, para. 34.  
Page: 256  
A: Yes.  
Q: And is it correct that this was an attempt to assert or effect British  
sovereignty over the area?  
A: Yes.  
Q: You mentioned, I think, in direct I think you used the phrase "putting  
theory to practice," in terms of the sovereignty issue?  
A: Yes. The theory being that the Treaty of Utrecht had assigned  
sovereignty over Newfoundland, the island of Newfoundland, to Great  
Britain and that the French had agreed to this. The practice however is a  
different matter. Practice meaning are there in fact British fishermen  
engaged in the fishery in this region which hitherto had been part of the  
French domain.  
Q: So are you speaking about the difference between I guess sovereignty  
as emanating from the Treaty of Utrecht versus effective sovereignty on  
the ground, in the area?  
A: That's how I would phrase it. I don't know what the legal implications  
of effective sovereignty are.  
Q: I'm just speaking from an historical perspective.  
A: Yes.  
Q: So is it your understanding that during this period that no evidence  
suggests that there were any British settlements or activities farther west  
than Hermitage and Grole?  
A: In 1714-1715?  
Q: Yes.  
A: No. We know that there may have been some Englishmen in the  
Placentia area, . . .  
[606] Robert Cuff concluded in his report:537  
The Treaty of Utrecht (1713) constitutes European recognition of British  
Sovereignty over the island of Newfoundland. To 1763 there was neither  
effective administration nor continuous settlements to buttress English  
537  
Expert Report of Robert Cuff, “European Settlement & Government in Newfoundland: A Survey with  
Particular Emphasis on the South Coast”, pp. 26-27  
Page: 257  
claims of sovereignty west of Placentia Bay. From 1763 English pioneer  
settlement extended into Fortune Bay.  
...  
European knowledge and use of the interior of Newfoundland was  
limited to a narrow coast strip in settled harbours and about nearby  
‘bottoms’ of bays, until the 1760s and preliminary mapping of the  
Exploits and Humber River Systems. Useful cartographic representations  
of the southwestern interior prior to the late 1800s is based on Mi'kmaq  
rather than European experience and report.  
[607] The Defendants submit that recognizing a transition period from 1713 (when  
British Sovereignty over southwestern Newfoundland theoretically began with the  
Treaty of Utrecht to 1763 (when actual possession by settlement and effective  
control arrived) the evidence at trial proves on a balance of probabilities that  
Mi'kmaq were frequenting Newfoundland and engaged in hunting, fishing, and  
gathering activities pursuant to their customs and traditions as a hunter-gather  
society prior to 1713 and clearly so by 1763.  
(iv) The Supreme Court and Contact  
[608] The Province properly notes that the Defendants err on the test for aboriginal  
rights when they define “contact” as requiring “use, occupation or administration”  
of the territory in question by Europeans or, alternatively, “sovereignty”.  
[609] In Van der Peet, Lamer C.J.C. stated with respect to the temporal framework  
for establishing an aboriginal rights claim:  
The time period that a court should consider in identifying whether the  
right claimed meets the standard of being integral to the aboriginal  
community claiming the right is the period prior to contact between  
aboriginal and European societies.538  
[610] In Van der Peet the Chief Justice spoke for a majority of seven judges, while  
McLachlin and L’Heureux-Dube J.J. wrote separate and dissenting opinions that  
specifically rejected Lamer, C.J.C.’s analysis of the temporal issue. L’Heureux-  
Dube J. decided that the temporal framework for delineating aboriginal rights  
should be based on a substantial continuous period of time with specific reference  
to: the type of aboriginal practices, traditions and customs; the particular  
538  
R. v. Van der Peet, note 468 above, para. 60.  
Page: 258  
aboriginal culture at issue; and to a general time period of 20-50 years.539  
McLachlin J. in her dissent made the suggestion that the Court should adopt what  
she termed an “empirical approach” to the time frame issue.  
[611] The Court in subsequent jurisprudence failed to adopt any of the suggestions  
of the dissenting judges and remained firmly committed to the “contact test” as first  
set out by Lamer C.J.C. in Van der Peet.540 Indeed, in its most recent decision on  
aboriginal rights, the Supreme Court of Canada again endorsed and reaffirmed the  
“contact test”. In Mitchell, McLachlin C.J.C., speaking for the majority, stated:  
In the seminal cases of R. v. Van der Peet, [1996] 2 S.C.R. 507, 137  
D.L.R. (4th) 289, and Delgamuukw, supra, this Court affirmed the  
foregoing principles and set out the test for establishing an aboriginal  
right. Since s. 35(1) is aimed at reconciling the prior occupation of North  
America by aboriginal societies with the Crown’s assertion of  
sovereignty, the test for establishing an aboriginal right focuses on  
identifying the integral, defining features of those societies. Stripped to  
essentials, an aboriginal claimant must prove a modern practice, tradition  
or custom that has a reasonable degree of continuity with the practices,  
traditions or customs that existed prior to contact.541 [Emphasis added.]  
[612] It appears that despite earlier differences concerning the “contact test”, the  
Supreme Court continues to endorse the requirement that claimants must show  
aboriginal traditions existed prior to contact to establish a constitutionally protected  
right under s. 35(1).  
[613] The use of contact as a reference point has its critics within both academic  
and judicial circles. Professor Slattery suggests that the choice of “contact” is  
incorrect in that it had no legal meaning in British law. In an article relied on  
extensively by the Defendants, he states:  
Contact did not give indigenous peoples any rights in British law, nor did  
it have any legal impact on indigenous systems of law and rights.  
Contact was a legally innocent event. It was only when the Crown  
539  
The same, para. 178.  
540  
See: R. v. Cote (1996), 138 D.L.R. (4th) 657 (S.C.C.); R. v. Adams (1996), 138 D.L.R. (4th) 385  
(S.C.C.); R .v. N.T.C. Smokehouse Ltd. (1996), 137 D.L.R. (4th) 528 (S.C.C.); R. v. Gladstone (1996), 137 D.L.R.  
(4th) 648 (S.C.C.).  
541  
Mitchell v. M.N.R., note 468 above, para. 12.  
Page: 259  
acquired jurisdiction over a territory that the issue of the rights of the  
local inhabitants arose in British law.542  
[614] Similarly, Lambert J.A. of the British Columbia Court of Appeal has also  
argued that the choice of “contact” as the key date has no legitimate basis and that  
“sovereignty” is the more appropriate reference point.  
You will remember that in Delgamuukw the relevant date, for  
considering the existence and nature of an aboriginal title to determine  
whether it was aboriginal, was said to be the date of sovereignty. But in  
Van der Peet, for no very good reason that I can see, it was said to be the  
date of contact. If the Supreme Court of Canada did not want to take the  
trading of fish at Fort Langley between 1828 and 1846 into account  
because, for example, no similar custom was exercised before 1828, then  
they could have said that the custom was not, in their view, an aboriginal  
one because it required non-aboriginal people for its exercise. It was  
unnecessary to set the relevant date for assessing the practice as being  
aboriginal or not as a date before contact. It seems to me that the  
Doctrine of Continuity supports the date of sovereignty as being the  
relevant date, not only for aboriginal title but also for aboriginal rights,  
including site-specific aboriginal rights.543  
[615] These opinions ignore the reason for the selection of “contact” by the Court,  
namely, the desire to ensure that aboriginal rights are in fact “aboriginal”.  
Aboriginal customs exercised only after contact may have been influenced by  
European custom. As Lamer, C.J.C. stated in Van der Peet:  
Aboriginal rights cannot ... be defined on the basis of the philosophical  
precepts of the liberal enlightenment. Although equal in importance and  
significance to the rights enshrined in the Charter, aboriginal rights must  
be viewed differently from Charter rights because they are rights held  
only by aboriginal members of Canadian society. They arise from the  
fact that aboriginal people are aboriginal.544  
[616] The Province correctly notes that the selection of any date other than  
“contact” would produce the illogical position that aboriginal people could adopt  
European traditions after contact, which would then in the 21st century be subject to  
542  
Brian Slattery, note 516 above, p. 217.  
543  
Douglas Lambert, “Van der Peet and Delgamuukw: Ten Unresolved Issues” (1998), 32 University of  
British Columbia Law Review 249, at p. 263.  
544  
R. v. Van der Peet, note 468 above, para. 19.  
Page: 260  
constitutional protection, while the same European traditions among non-aboriginal  
people would be denied protection. A test other than contact would undermine the  
very purpose of section 35(1), which Lamer, C.J.C. describes as being focused on  
“the reconciliation of the pre-existence of aboriginal societies with the sovereignty  
of the Crown”.545 A reference point other than contact would produce neither legal  
nor social reconciliation.  
[617] Professor Kent McNeil seems to accept this. He states:  
Lamer C.J.C. was obviously concerned about one segment of Canadian  
society having constitutional protection for rights not enjoyed by all  
Canadians. In my opinion, this concern prompted him to limit those  
rights as much as possible, and one way of accomplishing that was to  
define those rights in terms of pre-contact practices, customs and  
traditions. In doing so, he adopted a narrow, time-orientated conception  
of what ‘Aboriginal’ means in the context of s. 35(1), so that it includes  
only those aspects of Aboriginal societies that pre-dated and therefore did  
not arise as a result of contact with Europeans.546  
[618] Lamer C.J.C. in Van der Peet is emphatic that the entire doctrine of  
aboriginal rights is premised on the basis of temporal priority or what might be  
termed as the “we were here first” justification. He stated:  
In my view, the doctrine of aboriginal rights exists, and is recognized and  
affirmed by s. 35(1), because of one simple fact: when Europeans arrived  
in North America, aboriginal peoples were already here, living in  
communities on the land, and participating in distinctive cultures, as they  
had done for centuries. It is this fact, and this fact above all others, which  
separates aboriginal peoples from all other minority groups in Canadian  
society and which mandates their special legal, and now constitutional,  
status.547  
[619] The Defendants argue that the supposed contact requirement of “occupation,  
administration, or settlement” is confirmed by the Supreme Court of Canada in R.  
v. Adams. In particular they rely on the comments of Lamer, C.J.C. when he states  
that:  
545  
R. v. Van der Peet, note 468 above, para. 31.  
546  
Kent McNeil, “Aboriginal Title and Aboriginal Rights: What’s the Connection?” (1997), 36 Alberta  
Law Review 117, p. 131.  
547  
R. v. Van der Peet, note 468 above, para. 30.  
Page: 261  
The arrival of Samuel de Champlain in 1603, and the consequent  
establishment of effective control by the French over what would become  
New France, is the time which can most accurately [be] identified as  
‘contact’ for the purposes of the Van der Peet test. The evidence  
presented clearly demonstrates that from that time fishing for food in the  
fishing area was a significant part of the Mohawks life.548  
[620] The Province correctly notes that the supposed “Adams standard for contact”  
is however, a finding of fact made in the closing pages of the decision and not a  
statement of law nor a principle of interpretation. It is important to keep in mind  
Lamer’s C.J.C.’s comments in Van der Peet, that aboriginal rights cases are fact-  
specific and that they “are not general and universal; their scope and content must  
be determined on a case by case basis”.549 In Adams contact happened to occur  
simultaneously with European control. However, it is very easy to imagine cases  
where aboriginal communities had engaged in an extensive trading relationship for  
decades with Europeans, but the Europeans failed to occupy or control the area in  
question. To say no contact occurred between the two groups would be neither  
logical nor supported by the cases.  
[621] The Defendants also rely on R. v. Cote550 as support for the occupation and  
control standard for contact. However, there are no references in Cote supporting  
this as a point of law. As with its sister case, Adams, there was simply a finding of  
fact that contact with the Algonquins, like the Mohawks, occurred with the arrival  
of Champlain.  
[622] The Supreme Court of Canada has defined the threshold test for aboriginal  
rights as contact, not sovereignty, in the clearest of terms:  
The time period that a court should consider in identifying whether the  
right claimed meets the standard of being integral to the aboriginal  
community claiming the right is the period prior to contact between  
aboriginal and European societies. Because it is the fact that distinctive  
aboriginal societies lived on the land prior to the arrival of Europeans  
that underlies the aboriginal rights protected by s. 35(1), it is to that pre-  
contact period that the courts must look in identifying aboriginal rights.  
548  
R. v. Adams, note 468 above, p. 674, para. 46.  
549  
Van der Peet, para. 69.  
550  
Note 468 above.  
Page: 262  
.. it is to those pre-existing societies that the court must look in defining  
aboriginal rights. It is not the fact that aboriginal societies existed prior to  
Crown sovereignty that is relevant; it is the fact that they existed prior to  
the arrival of Europeans in North America. As such, the relevant time  
period is the period prior to the arrival of Europeans, not the period prior  
to the assertion of sovereignty by the Crown. 551 [Emphasis added]  
[623] Lamer C.J.C in Delgamuukw makes it clear that “sovereignty” and “contact”  
are two conceptually distinct ideas, with the latter applying to aboriginal rights and  
the former to aboriginal title. He explains:  
In order to establish a claim to aboriginal title, the aboriginal group  
asserting the claim must establish that it occupied the lands in question at  
the time at which the Crown asserted sovereignty over the land subject to  
the title. The relevant time period for the establishment of title is,  
therefore, different than for the establishment of aboriginal rights to  
engage in specific activities. In Van der Peet, I held, at para. 60 that  
‘[t]he time period that a court should consider in identifying whether the  
right claimed meets the standard of being integral to the aboriginal  
community claiming the right is the period prior to contact . . . .’ This  
arises from the fact that in defining the central and distinctive attributes  
of pre-existing aboriginal societies it is necessary to look to a time prior  
to the arrival of Europeans. Practices, customs or traditions that arose  
solely as a response to European influences do not meet the standard for  
recognition as aboriginal rights.552 [Emphasis added.]  
[624] The choice of “sovereignty” as the threshold date for aboriginal title was not  
an arbitrary selection. In Delgamuukw, Lamer C.J.C. stated, “ … in the context of  
aboriginal title, sovereignty is the appropriate time period to consider for several  
reasons.”553 The Chief Justice’s reasons may be summarized as follows:  
•
Aboriginal title is a burden on Crown title and therefore it is not  
possible to speak of the existence of the burden prior to the title  
existing.  
•
The claim of title does not require separating aboriginal traditions  
from European. “Under common law the act of occupation or  
551  
552  
Van der Peet, note 468 above, paras. 60, 61.  
Delgamuukw, note 468 above, para. 144.  
553  
The same, para. 145.  
Page: 263  
possession is sufficient to ground aboriginal title and it is not  
necessary to prove that the land was a distinctive or integral part of the  
aboriginal society before the arrival of Europeans.”  
•
From a practical point, sovereignty is more certain than the date of  
contact. “It is often very difficult to determine the precise moment that  
each aboriginal group had first contact with European culture... .”  
[625] I do not accept the Defendants’ submission that the evolving nature of  
aboriginal rights doctrine permits me to avoid the very clear direction given to trial  
judges and to substitute use, occupation and administration or sovereignty as the  
test in place of contact.  
[626] Accepting that contact is in fact the legal test for aboriginal rights, it is clear,  
based on the archaeological evidence earlier noted (para. 496) that contact had  
occurred between the Europeans and the Mi’kmaq by 1550, long before any  
evidence of the arrival of the Mi’kmaq in Newfoundland. The Defendants own  
expert, Dr. Prins, accepted that “the Mi’kmaq and their aboriginal neighbors first  
encountered European invaders ca. 1500”554 and that the Mi’kmaq had “the dubious  
honor of being among the very first indigenous peoples in northeast America to  
encounter the European vanguard” when they encountered Breton fishermen in  
1504.555 This marks the beginning of a process of cultural adaptation and  
transformation for Mi’kmaq society and its way of life. Even accepting that this  
Court should not assume Mi’kmaq practices, customs and traditions immediately  
changed with initial European encounters, the archaeological assemblages in Nova  
Scotia (para. 496 above) satisfy me that by 1550 there were sufficient European  
influences on Mi’kmaq culture to prevent practices commencing after that date  
(such as fishing, hunting, and trapping in Newfoundland) from meeting the test of  
“aboriginal” set out in Delgamuukw and Mitchell. Historical references to  
Mi’kmaq use of European technology such as shallops by 1602 (para. 27 above)  
support this timeframe.  
5.  
Specific Nature of Aboriginal Rights  
(i) Introduction  
554  
555  
Prins Expert Report, p. 7.  
Prins, The Mi’kmaq: Resistance, p. 2.  
Page: 264  
[627] Even if the Defendants had otherwise met the test and established aboriginal  
rights, there is also a requirement that aboriginal claims be site and fact specific.  
This requirement has two particular aspects. First, there must be a specific  
delineation of the right and area claimed. Second, the evidence adduced in support  
of the right must be specific rather than general in nature. I will now consider  
whether the Defendants have met these requirements.  
(ii) Site and Fact Specific  
[628] Aboriginal rights are by their very nature site and fact specific. The notion  
of specificity is a common thread found in aboriginal rights, title and treaty  
jurisprudence. The concept was first enunciated in the case of Kruger v. R556 when  
Dickson J. observed that:  
Claims to aboriginal title are woven with history, legend, politics and  
moral obligations. If the claim of any Band in respect of any particular  
land is to be decided as a justiciable issue and not a political issue, it  
should be so considered on the facts pertinent to that Band and to that  
land, and not on any global basis.  
[629] This requirement for specificity was recently incorporated into the test for  
aboriginal rights by the Supreme Court of Canada in R. v. Van der Peet:  
As has already been suggested, aboriginal rights are constitutional rights,  
but that does not negate the central fact that the interests aboriginal rights  
are intended to protect relate to the specific history of the group claiming  
the right. Aboriginal rights are not general and universal; their scope and  
content must be determined on a case by case basis. The fact that one  
group of aboriginal people has an aboriginal right to do a particular thing  
will not be, without something more, sufficient to demonstrate that  
another aboriginal community has the same aboriginal right. The  
existence of the right will be specific to each aboriginal community.557  
[630] It is clear that generalized rights claims are not acceptable. Van der Peet,  
when read in conjunction with the evidentiary requirements in Mitchell, means that  
556  
(1977), 75 D.L.R. (3d) 434 (S.C.C.), p. 437.  
557  
R. v. Van der Peet, note 468 above, p. 318, para. 69.  
Page: 265  
in order to find an aboriginal right a court must have evidence that is both  
“specific” in nature and at the same time meets the “clear evidence” standard.558  
[631] The requirement that an aboriginal group be specific in asserting a claim  
imposes certain evidentiary obligations on the group. This was made clear in R. v.  
Blais559 when the Manitoba Court of Appeal stated:  
On the evidence presented in these proceedings, it would have been  
difficult indeed for the appellant to have succeeded in establishing an  
aboriginal entitlement to hunt. There was a lack of evidence to  
demonstrate any connection between the land or area of the province in  
which the hunting took place with the claimed aboriginal right. It was  
not enough for the appellant and Senator Head to talk in vague  
generalizations; the authorities have consistently indicated something  
much more specific is required.  
[632] One of the key questions in this case is whether the vagueness of the claim  
and the evidence adduced in support of the Defendants’ claim is sufficient to allow  
a court to find a nexus between the Defendants and the territory in question. Not  
all aboriginal rights need be tied to the land. However, a claim involving a right to  
fish, trap or hunt has obvious territorial requirements. In these types of cases the  
courts have recognized that there must exist a nexus between the right claimed and  
the land in question. This is supported by the Manitoba Court of Appeal’s decision  
in Blais, concerning an aboriginal (Metis) right to hunt deer in a particular area out  
of season. Scott, C.J.M. stated: “There must be some material connection between  
the distinctive practice, custom and tradition in question, and the ‘occupation and  
use of the land’. It is not a right at large. The right in issue in this case must be  
anchored to the land”.560  
[633] The statements contained in Blais are supported by the comments of the  
Supreme Court of Canada in R. v. Cote.561 There Chief Justice Lamer commented  
on the relationship of aboriginal rights to specific native traditional territory. He  
stated:  
558  
See “The Evidentiary Burden”, Part IV.1(c) above.  
559  
(2001), 198 D.L.R. (4th) 220 (Man. C.A.), para. 86.  
560  
The same, para. 63.  
561  
(1996), 138 D.L.R. (4th) 385 (S.C.C.).  
Page: 266  
An aboriginal practice, custom or tradition entitled to protection as an  
aboriginal right will frequently be limited to a specific territory or  
location, depending on the actual pattern of exercise of such an activity  
prior to contact. As such, an aboriginal right will often be defined in site-  
specific terms, with the result that it can only be exercised upon a specific  
tract of land.562  
[634] Similarly, in Adams v. The Queen563, Chief Justice Lamer stated:  
The recognition that aboriginal title is simply one manifestation of the  
doctrine of aboriginal rights should not, however, create the impression  
that the fact that some aboriginal rights are linked to land use or  
occupation is unimportant. Even where an aboriginal right exists on a  
tract of land to which the aboriginal people in question do not have title,  
that right may well be site specific, with the result that it can be exercised  
only upon that specific tract of land. For example, if an aboriginal people  
demonstrates that hunting on a specific tract of land was an integral part  
of their distinctive culture then, even if the right exists apart from title to  
that tract of land, the aboriginal right to hunt is nonetheless defined as,  
and limited to, the right to hunt on the specific tract of land. A site-  
specific hunting or fishing right does not, simply because it is  
independent of aboriginal title to the land on which it took place, become  
an abstract fishing or hunting right exercisable anywhere; it continues to  
be a right to hunt or fish on the tract of land in question.  
[635] When one examines the magnitude of what is claimed in this case it becomes  
readily apparent that the Defendants are in essence claiming a free-ranging  
aboriginal right or an aboriginal right at large, over a large part of the Island of  
Newfoundland. The “tract of land in question” over which the Defendants are  
claiming a right to hunt, fish and trap constitutes one fifth of the Island and totals  
21,887 square kilometres.  
[636] While in theory there is no limit to the area over which aboriginal rights may  
be claimed, I conlude that as the geographical magnitude of a claim expands there  
should be a corresponding increase in the amount of positive evidence required to  
show the necessary nexus between the right claimed and the territory. In other  
words, the size of the claim and the evidentiary burden increase proportionally.  
562  
The same, para. 39.  
563  
(1996), 138 D.L.R. (4th) 657, para. 30.  
Page: 267  
[637] Even if the Defendants could meet all of the existing requirements of the test  
for aboriginal rights, such as the pre-contact existence of a tradition which is  
integral to a distinctive culture, the existing jurisprudence would also require that  
the rights exist in relative proximity to the cabins in question, otherwise the  
Defendants would be asserting what amounts to a claim for aboriginal rights at  
large.  
[638] Correct application of the legal test elucidated by the Supreme Court  
facilitates a balancing of perspectives in defining the rights. As Lamer, C.J.C.  
quoted in Van der Peet:  
The challenge of defining aboriginal rights stems from the fact that they  
are rights peculiar to the meeting of two vastly dissimilar legal cultures;  
consequently there will always be a question about which legal culture is  
to provide the vantage point from which rights are to be defined.564  
[639] The nature of the law surrounding the test for aboriginal rights is highly fact-  
specific and courts are by the very nature of the test restricted to the narrow issues  
of the claim presented. As the Ontario Court of Appeal indicated in R. v.  
Powley:565  
It is impossible to define the rights of an entire people within the confines  
of one case. As the record in this case so amply demonstrates, claims of  
aboriginal rights are intensely fact specific, and involve a close, careful  
and detailed scrutiny of events long past. Recognition of a right on one  
set of facts does not necessarily mean that the right will be made out on  
the next set of facts. We must guard against the temptation to pronounce  
broadly upon all possible aspects of the rights of the Métis people and  
should instead confine ourselves to what is necessary for the resolution of  
the case before us.566  
[640] Because it is insufficiently site - and fact-specific, the evidence in the present  
case does not support the Defendants’ assertion that they possess constitutionally  
protected aboriginal rights in the Bay du Nord Wilderness Area.  
564  
The same, p. 309, para. 42.  
565  
(2001), 196 D.L.R. (4th) 221 (Ont. C.A.).  
566  
The same, p. 249, para. 75.  
Page: 268  
6.  
Integral to the Distinctive Culture  
(i) Introduction  
[641] The test for aboriginal rights is cultural, based upon the finding that an  
activity is central and distinctive to a particular aboriginal society. The test is not  
based on ethnicity, nor does it insulate all activities carried out by aboriginal  
societies simply because the activities owe their origins to the pre-contact period.  
In order for the activity to qualify for constitutional protection it must be a  
distinctive feature of the aboriginal group exerting the claim, exhibit continuity  
with a pre-contact activity, and not have arisen solely in response to European  
influence.  
(ii) Requirement of “Distinctiveness”  
[642] In proving their case the Defendants must, in the words of Lamer C.J.C.,  
demonstrate “that the practice, tradition or custom was one of the things which  
made the culture of the society distinctive - that it was one of the things that truly  
made the society what it was”.567 In applying the test for aboriginal rights, Lamer  
C.J.C. cautioned that:  
...[the] court cannot look at those aspects of the aboriginal society that are  
true of every human society (e.g., eating to survive), nor can it look at  
those aspects of the aboriginal society that are only incidental or  
occasional to that society; the court must look instead to the defining and  
central attributes of the aboriginal society in question. It is only by  
focusing on the aspects of the aboriginal society that make that society  
distinctive that the definition of aboriginal rights will accomplish the  
purpose underlying s. 35(1).568  
[643] Lamer C.J.C. further reduces this part of the test to a single affirmative  
question: “whether or not a practice, tradition or custom is a defining feature of the  
culture in question”.569 Later in the Van der Peet decision the Supreme Court is  
careful to point out that the test requires that the activity be a “distinguishing  
567  
R. v. Van der Peet,, note 468 above, para. 55.  
568  
.The same, p. 314, para. 56.  
569  
The same, pp. 314-315, para. 59.  
Page: 269  
characteristic” of an aboriginal society rather than being “distinct” to the aboriginal  
culture in question. The Court explains:  
It is a claim that this tradition or custom makes the culture what it is, not  
that the practice, custom or tradition is different from the practices,  
customs or traditions of another culture. The person or community  
claiming the existence of an aboriginal right protected by s. 35(1) need  
only show that the particular practice, custom or tradition which it is  
claiming to be an aboriginal right is distinctive, not that it is distinct.  
That the standard an aboriginal community must meet is distinctiveness,  
not distinctness, arises from the recognition in Sparrow, supra, of an  
aboriginal right to fish for food. Certainly no aboriginal group in Canada  
could claim that its culture is “distinct” or unique in fishing for food;  
fishing for food is something done by many different cultures and  
societies around the world. What the Musqueam claimed in Sparrow,  
supra, was rather that it was fishing for food which, in part, made  
Musqueam culture what it is; fishing for food was characteristic of  
Musqueam culture and, therefore, a distinctive part of that culture.570  
[644] McLachlin C.J.C. in Mitchell carefully set out the restrictions on the test.  
She stated that the test specifically:  
... excludes practices, traditions and customs that are only marginal or  
incidental to the aboriginal society’s cultural identity, and emphasizes  
practices, traditions and customs that are vital to the life, culture and  
identity of the aboriginal society in question.571  
[645] The test as articulated by the Supreme Court of Canada therefore requires:  
(1) that there exist some evidence to show that the custom was central to the  
aboriginal society claiming the right; and (2) that there is a degree of continuity  
between the past and present practices.  
[646] A determination of whether the practice was integral to the culture of an  
aboriginal group rests upon factual considerations. As Lamer C.J.C. indicated in R.  
v. N.T.C. Smokehouse Ltd.:  
I would also note with regard to the second stage of the Van der Peet  
analysis that the determination of whether the exchange of salmon is an  
570  
The same, paras. 71-72.  
571  
Mitchell v. M.N.R., note 468 above, para. 12.  
Page: 270  
integral part of the distinctive cultures of the Sheshaht and Opetchesaht  
will depend, in significant part, on the factual evidence that was before  
the trial court and, here at the appellate level, on the findings of fact made  
by the trial judge.572  
[647] The Court in N.T.C. Smokehouse clearly indicated a need for specific factual  
evidence in respect to determining the centrality of the tradition. The Province  
submits vague generalizations that the Mi’kmaq, like all aboriginal peoples, were  
hunters and gatherers is not sufficient to meet the evidentiary requirements of  
demonstrating that each of the separate activities of trapping, hunting and fishing  
were of central cultural significance to the Mi’kmaq. The Province notes the  
comments of Lamer C.J.C. with regard to determining the centrality of the activity  
in question, “The court cannot look at those aspects of the aboriginal society that  
are true of every human society (e.g., eating to survive) ...”.573 The Province  
contends that to make hunter-gatherer generalizations is to change the nature of the  
test for rights from one focused on specific individual aboriginal cultures to one  
based on ethnicity.  
[648] In N.T.C. Smokehouse the Supreme Court of Canada ultimately rejected the  
aboriginal claim because of the absence of evidence on the integrality point. The  
Court held that “The findings of fact made by the trial judge do not support the  
appellant’s claim that, prior to contact, exchanging fish for money or other goods  
was an integral part of the distinctive cultures of the Sheshaht or Opetchesaht”.574  
[649] In contrast, the Supreme Court of Canada in R. v. Gladstone determined that  
trading herring spawn on kelp was an integral part of the distinctive culture of the  
Heiltsuk. Importantly, the Court found that in Gladstone there existed an  
anthropological and historical record that confirmed the central and defining role  
that such activity played in Heiltsuk society. The Province contends no similar  
type of historical or anthropological evidence in respect of pre-contact Mi'kmaq fur  
trapping has been presented in this case. I do not agree. The evidence satisfies me  
that, although prior to contact the Mi’kmaq of Cape Breton did not engage in  
trapping furbearing animals for trade, this activity arising in response to European  
demand, the Mi’kmaq did trap and hunt to obtain fur for clothing, hides for shelter  
572  
R. v. N.T.C. Smokehouse, note 540 above, para. 24.  
573  
R. v. Van der Peet, note 468 above, para. 56.  
574  
R. v. N.T.C. Smokehouse, note 540 above, p. 539, para. 26.  
Page: 271  
and meat for food. This is sufficient to establish that hunting and trapping in the  
interior was a defining feature of Mi’kmaq culture. For this case I need not decide  
whether they are entitled to trap and hunt commercially. Hunting and trapping for  
personal reasons would have been sufficient to establish entitlement to retention of  
hunting cabins, had the Defendants been able to establish this activity occurred  
before European contact in the Bay du Nord Wilderness Area.  
[650] Prior to the arrival of Europeans the Mi’kmaq culture and way of life was  
one of subsistence focussed largely on the utilization of marine resources. As Dr.  
Prins testified, the Mi’kmaq moved “seasonally between particular hunting districts  
and specific coastal fishing, clamming, fowling, and sealing sites”, and “Although  
some animals were killed year-round, furbearing animals were typically hunted in  
the winter and spring only”.575 This does not support the Province’s contention  
that hunting and trapping was only marginal or incidental to the Mi’kmaq way of  
life, even though I conclude they were probably more dependent upon maritime  
resources than on those of the interior, before trapping for the European fur trade  
became important to them.  
[651] In addition to being required to prove the centrality of trapping to the  
Mi’kmaq culture, the Defendants must also prove that the activity in question did  
not occur solely in response to contact with Europeans. As Lamer C.J.C. indicated  
in Van der Peet, “where the practice, custom or tradition arose solely as a response  
to European influences then that practice, custom or tradition will not meet the  
standard for recognition of an aboriginal right”.576 The historical evidence  
supports the assertion that trapping for trade occurred as a response to European  
influence. The arrival of the Europeans and the desire to trade produced a  
transition from a migratory subsistence economy that was focused on marine  
resources along the coast to a market based economy focused on fur trapping in the  
interior. As David Christianson testified:  
... with the arrival of Europeans, more time was now spent in the interior  
catching furbearing animals than had been the case prior to contact.  
Whereas prior to contact, the seasonal focus had been primarily a coastal  
one, with some use of interior resources. After contact there’s a much  
greater attempt to harvest furbearing animals from interior resources ...  
575  
Prins, The Mi’kmaq: Resistance, pp. 27-29..  
576  
R. v. Van der Peet, note 468 above, para 73.  
Page: 272  
[652] According to the expert opinion of Dr. von Gernet, European contact  
significantly changed Mi’kmaq culture and it was only afterwards that fur trapping  
developed any economic importance or cultural significance. He stated:  
The Mi’kmaq became involved in the fur trade from the beginning of  
their contact with Europeans in the early sixteenth century. In the  
process, the Mi’kmaq were gradually transformed from self-sufficient  
subsistence foragers into market hunters. The trade precipitated a change  
in the Aboriginal economic structure and timing of the seasonal round.  
There was a shift in emphasis from aquatic to terrestrial resources ... .577  
And he testified that with the arrival of Europeans:  
... there’s a new economy that’s introduced to them by virtue of European  
demand for fashionable hats, which simply does not exist prior to  
contact, and sure they do not completely abandon their previous mode of  
subsistence, but this is really a matter of emphasis, and a market  
economy is really quite different from a subsistence foraging economy.  
[653] I am satisfied, however, that hunting and trapping, although not a year-round  
activity, was a central and defining feature of Mi’kmaq life in Cape Breton, before  
European contact, in that it was an essential component of the Mi’kmaq strategy  
for survival. I conclude, therefore, that the Defendants have met the  
“distinctiveness” aspect of the test for aboriginal rights.  
(iii) Geographical Requirement  
[654] In determining the requirement of being integral to a culture, a court must  
consider not just culture but also geography. As the Supreme Court of Canada  
observed in Mitchell:  
[55] The importance of trade – in and of itself – to Mohawk culture is not  
determinative of the issue. It is necessary on the facts of this case to  
demonstrate the integrality of this practice to the Mohawk in the specific  
geographical region in which it is alleged to have been exercised (i.e.,  
north of the St. Lawrence River), rather than in the abstract. This Court  
has frequently considered the geographical reach of a claimed right in  
assessing its centrality to the aboriginal culture claiming it. ...  
577  
Von Gernet, Expert Report, p. 230.  
Page: 273  
[56] Thus, geographical considerations are clearly relevant to the  
determination of whether an activity is integral in at least some cases,  
most notably where the activity is intrinsically linked to specific tracts of  
land.578  
Therefore, based on the above, the Defendants must establish: (1) that the practice  
was central to the culture; and (2) that this centrality is intrinsically linked to the  
Bay du Nord area.  
[655] Neither the historical nor the contemporary evidence in this case has linked  
Mi’kmaq hunting and trapping to the Bay du Nord Wilderness Area or indeed to  
the Island of Newfoundland generally before 1550, which as noted at para. 625  
above, I conclude is the appropriate date to adopt for the date of contact of the  
Mi’kmaq with Europeans.  
(iv) Continuity Requirement  
[656] The Province submits the contemporary evidence presented at Conne River  
supports the view that trapping is a marginal activity and not central to Mi’kmaq  
culture. The Province notes there was no evidence of trapping playing a part in any  
ceremonial or religious rites engaged in by the Mi’kmaq. Evidence given by the  
Elders indicates that trapping in the Bay du Nord area was a means by which  
non-Mi’kmaq people in the area supported themselves and that amongst the  
Mi’kmaq trapping was one means of earning a living amongst a multitude of  
others, including cutting wood for the paper company and working at the hydro  
developments. The Province contend the Defendants have failed to demonstrate  
the required continuity of tradition.  
[657] In Gladstone the Court spoke of the need for “continuity” between present  
practices and pre-contact activity. Lamer C.J.C. observed: “In Van der Peet this  
was described as the requirement of ‘continuity’- the requirement that a practice,  
tradition or custom which is integral to the aboriginal community now be shown to  
have continuity with the practices, traditions or customs which existed prior to  
contact”.579 The Province argues this suggests the Defendants must demonstrate  
578  
Mitchell v. M.N.R., note 445 above, paras. 55-56.  
579  
R. v. Gladstone, note 540 above, para. 28.  
Page: 274  
that trapping is central to Mi’kmaq society today while contemporary evidence  
demonstrated that trapping constitutes a marginal activity in a market-based  
economy at Conne River. I do not interpret Lamer C.J.’s statement to mean that  
where evidence establishes a practice, tradition or custom, was integral to a culture  
before European contact, the aboriginal group must prove it has continued to be an  
important and defining feature of the aboriginal sanity. What if a practice cannot  
be continued because, for example, of competing resource uses by Europeans? I  
understand Lamer C.J.C. to have been saying in Gladstone that if the only evidence  
of a pre-contact practice, custom or tradition is post-contact activity, the party  
claiming an aboriginal right must establish a link with similar activity before  
contact.  
[658] I accept the evidence of Chief Misel Joe who testified:  
Physical survival. It’s a part of who we are when we go out to use the  
land. Our people come to live and it’s not always going out to catch  
twenty beaver, it’s being out there using the land, being part of the land,  
being on the land, teaching your children about the land. Those are all  
part of what identifies you as a Mi'kmaq person.  
[659] I conclude that where, as here, the evidence establishes trapping was central  
to an aboriginal group’s culture and way of life before contact, this is sufficient to  
meet the continuity requirement of the test for aboriginal trapping rights.  
7.  
Oral History and Traditions  
[660] I end my analysis of the evidence on aboriginal rights with some remarks on  
oral history and traditions. As noted above, the viva voce testimony of the defence  
witnesses did not provide any evidence of a Mi’kmaq oral history or tradition  
where Newfoundland was designated as part of traditional Mi’kmaq territory prior  
to European arrival, or for that matter prior to the last century. Rather, the  
evidence was of a biographical nature, and while interesting and worthy of respect,  
it reflected a lifestyle not unlike that of a non-aboriginal Newfoundlander in the  
first half of the 20th century.  
[661] Further, there was nothing in the oral traditions recorded by others, such as  
Gerald Penney, Elsie Clues Parsons, Silas Rand and Frank Speck, that dated the  
Mi’kmaq arrival in Newfoundland prior to the late 1700's. In this regard, where  
“oral tradition” does exist, it is in accord with the historical record.  
Page: 275  
[662] The oral evidence offered in this case stands in marked contrast to that  
tendered in Delgamuukw. There, the Supreme Court of Canada first considered  
three different forms of oral history: (1) the adaawk and the kungax (special oral  
histories, that specifically contained indicia of reliability and circumstantial  
trustworthiness); (2) the personal recollections of the members of the appellant  
nations; and (3) territorial affidavits filed by the heads of the individual houses  
within each nation.  
[663] In Delgamuukw, Lamer C.J.C. highlighted some of the problems associated  
with this type of evidence. After discussing the nature of oral histories, he stated:  
The difficulty with these features of oral histories is that they are  
tangential to the ultimate purpose of the fact-finding process at trial the  
determination of the historical truth. Another feature of oral histories  
which creates difficulty is that they largely consist of out-of-court  
statements, passed on through an unbroken chain across the generations  
of a particular aboriginal nation to the present-day. These out-of-court  
statements are admitted for their truth and therefore conflict with the  
general rule against the admissibility of hearsay.580  
[664] Despite these problems, Lamer C.J.C., in granting the appeal, took a very  
broad approach concerning the admissibility of oral histories and further found  
that, even though the trial judge in the case had admitted much of the oral history  
evidence, he had failed to give sufficient weight to that evidence. In relation to the  
adaawx and kungax, Lamer, C.J.C. specifically concluded:  
... the trial judge gave no independent weight to these special oral  
histories because they did not accurately convey historical truth, because  
knowledge about those oral histories was confined to the communities  
whose histories they were and because those oral histories were  
insufficiently detailed. However, as I mentioned earlier, these are  
features, to a greater or lesser extent, of all oral histories, not just the  
adaawk and kungax. The implication of the trial judge's reasoning is that  
oral histories should never be given any independent weight and are only  
useful as confirmatory evidence in aboriginal rights litigation. I fear that  
if this reasoning were followed, the oral histories of aboriginal peoples  
would be consistently and systematically undervalued by the Canadian  
legal system, in contradiction of the express instruction to the contrary in  
580  
Delgamuukw v. British Columbia, note 468 above, para. 86.  
Page: 276  
Van der Peet that trial courts interpret the evidence of aboriginal peoples  
in light of the difficulties inherent in adjudicating aboriginal claims.581  
[665] Read broadly, Delgamuukw could be interpreted as meaning that aboriginal  
oral histories should be assigned weight by a trial court regardless of whether or  
not they confer any truth; in other words, that weight should be given merely by  
virtue of their aboriginality. This interpretation of the Delgamuukw decision was  
subsequently rejected in Mitchell when the Supreme Court clarified its position on  
weighing evidence in aboriginal litigation. The Court stated:  
... it must be emphasized that a consciousness of the special nature of  
aboriginal claims does not negate the operation of general evidentiary  
principles. While evidence adduced in support of aboriginal claims must  
not be undervalued, neither should it be interpreted or weighed in a  
manner that fundamentally contravenes the principles of evidence law…  
582  
.
[666] The Court in Mitchell went on to indicate that evidence should not be  
“artificially strained to carry more weight than it can reasonably support”.583  
McLachlin C.J.C. in Mitchell also made the important point that the Van der Peet  
approach, which was applied in Delgamuukw, “does not bolster or enhance the  
cogency of this evidence”.584 In other words, the fact that the evidence forms part  
of an aboriginal oral tradition does not mean that the evidence is automatically  
trustworthy or cogent.  
[667] Although the Court did not actually cite Mitchell, it would appear that this  
type of approach was adopted by the Nova Scotia Supreme Court in the aboriginal  
timber rights case of R. v. Marshall585. The Court clearly rejected some oral history  
evidence, pointing out:  
581  
The same, para. 98.  
582  
Mitchell v. M.N.R., note 468 above, pp. 408-409, para. 38.  
583  
The same, p. 409, para. 39.  
584  
The same, para. 51.  
585  
[2002] N.S.J. No. 98 (N.S.S.C.) [hereinafter cited as R. v. Marshall #4].  
Page: 277  
Both Van der Peet and Delgamuukw make it clear that oral evidence is  
important in terms of conveying aboriginal perspective. That does not  
mean it must be accepted as being historically accurate if there is  
convincing evidence to the contrary. Oral tradition is not any better than  
documentary evidence and it is not to be blindly accepted over a  
mountain of documentary evidence. The risks associated will [sic] oral  
history or oral tradition become very apparent when as in the present case  
it became obvious that the wampum belt was not part of Mi’kmaq  
history.586  
[668] I agree with these comments, which I believe are consistent with Mitchell.  
The Court’s position in Marshall #4, that oral evidence must be considered in the  
context of other evidence, is also consistent with the anthropological approach  
advocated by Dr. von Gernet.  
[669] I find Dr. von Gernet’s methodology for interpreting oral history and  
tradition is consistent with the rationalist approach to the law of evidence which  
emphasizes a search for truth, justice and reason. In many respects, Dr. von  
Gernet’s approach incorporates the traditional values of evidence law. In  
conducting his examination of Mi’kmaq oral traditions Dr. von Gernet places a  
premium on using a balanced approach which combines a respect for aboriginal  
traditions along with a rigorous and scientific methodology. He explains his  
approach this way:  
The most useful approach, and the one I adopt, recognizes the legitimacy  
of self-representation and acknowledges that what people believe about  
their own past must be respected and receive serious historical  
consideration. At the same time, it assumes that there was a real past  
independent of what people presently believe it to be, and that valuable  
information about the past may be derived from the various sources  
including oral histories and oral traditions, as well as archaeological data  
and written documents. It accepts that both non-Aboriginal and  
Aboriginal scholars can be biased, that various pasts can be invented for  
political reasons, and that a value-free history is an impossible ideal.  
Nevertheless, it postulates that the past constrains the way in which  
modern interpreters can manipulate it for various purposes. While the  
actual past is beyond retrieval, this must remain the aim. The  
reconstruction that results may not have a privileged claim on a universal  
‘truth’, but it will have the advantage of being rigorous. The approach  
rejects the fashionable notion that, because Aboriginal oral documents  
are not Western, they cannot be assessed using Western methods and  
586  
The same, para. 116. For the background to the wampum belt story, see von Gernet Expert Report, pp.  
22-23.  
Page: 278  
should be allowed to escape the type of scrutiny given to other forms of  
evidence.587  
[670] I accept this and agree with Dr. von Gernet that, while the value of orally  
communicated history “does not always lie in its factual accuracy, when it comes to  
historical inquiry in fact-finding exercises requiring decisions about what happened  
in ancient times, it is important to at least try to distinguish between what people in  
the present believe might have happened and what on the weight of combined  
evidence actually did happen”.588 Dr. von Gernet’s rigorous approach supports the  
values associated with the principle of good faith in decision-making. If one  
accepts, as I do, that a good faith attempt to establish the truth about particular past  
events at issue in a case is a necessary condition for achieving justice in  
adjudication, then it is necessary to adopt Dr. von Gernet’s approach to oral history  
and tradition.  
[671] This general approach to oral history and tradition accords with the position  
of the Supreme Court of Canada in Mitchell, where the Court stated: “Placing ‘due  
weight’ on the aboriginal perspective, or ensuring its supporting evidence an ‘equal  
footing’ with more familiar forms of evidence, means precisely what these phrases  
suggest: equal and due treatment”.589 Consistent with this statement, in conducting  
his assessment, Dr. von Gernet also applied a standard of equal treatment of  
evidence. He stated in his report:  
There is a general academic consensus among mainstream scholars that  
when oral documents are used as evidence about what ‘actually  
happened’ in the past, they must be assessed using the same tests used to  
check the reliability of written documents and must be treated with the  
same degree of critical care as any other historical sources. ... Now that  
the double standard once privileging written over oral documents has  
been dismantled, it should not be replaced with another double standard  
exempting oral histories and traditions from the critical scrutiny that all  
primary and secondary sources deserve. It is in this spirit that I turn to  
the Mi’kmaq and Newfoundland.590  
587  
von Gernet, Expert Report, p. 11.  
588  
The same, pp. 12-13.  
589  
Mitchell v. M.N.R., note 468 above, p. 409, para. 39.  
590  
von Gernet, Expert Report, pp. 16-17.  
Page: 279  
[672] Putting oral histories on an “equal footing” means subjecting both written  
and oral evidence in aboriginal rights claims to very careful examination.  
[673] This anthropological method of examining oral evidence in conjunction with  
other types of evidence is consistent with the principle that evidence in a trial must  
be assessed in its totality. Indeed, the “totality approach” was applied in Marshall  
#3.591 In that case the Court correctly considered the oral history/tradition evidence  
by examining it in relation to other evidence. The Court observed that the Supreme  
Court of Canada in Van der Peet and Delgamuukw “did not say oral tradition was  
better than documentary evidence or that the smallest amount of oral tradition was  
to be accepted over a mountain of documentary evidence”. Curran Prov. Ct. J.  
concluded:  
In the present case we have evidence of oral tradition provided by a  
single witness. We don’t know whether the traditions he relates were  
influenced by his own literacy or that of his forebears. We don’t know  
whether there are other Mi’kmaq tradition bearers or other traditions  
about the same topics. On the other hand, we do have a mass of 18th-  
century documents, both French and British, containing no evidence of  
seven districts or a grand council. The massive written record is far more  
convincing than the minimal oral evidence.592  
[674] The approach of considering evidence in its totality was also applied in  
Squamish Indian Band v. R.593 There the Federal Trial Court assessed oral history  
evidence in relation to several factors. These included:  
•
•
its relevance to the specific dates in issue;  
its reliability when considered in light of:  
-
-
-
competing oral history evidence;  
evidence of other types; and  
any corroboration;  
591  
592  
593  
R. v. Marshall #3 [2001] N.S.J. No. 97 (N.S. Prov. Ct.), para. 64.  
The same, para. 65.  
[2000] F.C.J. No. 1568.  
Page: 280  
•
•
the source of the evidence (this includes a consideration  
of who related the information, when it was related and  
for what purpose); and  
changes or events which could have distorted the  
evidence.594  
[675] The oral evidence in Squamish was tendered “to demonstrate that either the  
Squamish or the Musqueam People were the predominant, or at least a significant,  
presence in and around Burrard Inlet in 1869 when the Reserve was created” and  
“to demonstrate that the residents of the Reserve in 1869 and 1877 were either  
Musqueam or Squamish Indians”.595 The Squamish case was not an aboriginal  
rights claim and the judge seemed to impose a higher standard on the oral history  
evidence because of the need for “greater historical accuracy”. The Court was  
careful to distinguish it from a claim for aboriginal rights or title, stating:  
In contrast to cases such as Marshall, Badger and Delgamuukw, precise  
historical accuracy is important in this case. Here the evidence described  
as oral history was tendered for the following very specific purposes: to  
demonstrate that either the Squamish or the Musqueam People were the  
predominant, or at least a significant, presence in and around Burrard  
Inlet in 1869 when the Reserve was created; and to demonstrate that the  
residents of the Reserve in 1869 and 1877 were either Musqueam or  
Squamish Indians.596  
[676] The Province submits that evidence surrounding geographical location and  
utilization of an area is fundamentally different from evidence pertaining to  
customs and traditions. Oral history evidence as to the geographical location of an  
aboriginal group may require a degree of accuracy not normally required in cases  
where it is merely a custom that is in dispute. A more historically precise type of  
evidence may be required in determining if a group hunted and trapped in a small  
portion of the Island than would be required to demonstrate that an aboriginal  
group engaged in a practice such as potlatches. In light of my conclusion that the  
Defendants have provided no evidence to show pre-contact hunting, trapping or  
594  
The same, para. 40.  
595  
The same, para. 34.  
596  
The same, para. 34.  
Page: 281  
fishing activity in the Bay du Nord Wilderness Area, I need not determine this  
point.  
[677] Some comments on the reliability of oral evidence may be helpful.  
Reliability is a criteria that frequently determines the admissibility of evidence.  
Although weight and admissibility are two different concepts, reliability also  
figures largely in determining the appropriate amount of weight to be assigned to  
evidence once a court has chosen to admit it. In Delgamuukw some, but not all, of  
the oral history presented in the case contained circumstantial guarantees of  
reliability in the form of cultural practices. The evidence presented formed part of  
specific traditions known as the adaawk and the kungaax. These oral traditions  
were deemed to be reliable by virtue of their frequent public retellings. While  
absence of a circumstantial guarantee of trustworthiness does not bar the Court  
from admitting or assigning weight to the evidence presented, it does have a  
bearing on the cogency of the evidence presented.  
[678] Courts look at whether Defendants have proven some cultural practice that  
would imbue the evidence with a degree of reliability. For example, in the case of  
R. v. Ironeagle.,597 Moxley Prov. Ct. J. noted:  
While oral history evidence is now routinely accepted as an exception to  
the hearsay rule and admissible in Canadian courts, judges are  
nevertheless left with the problem of the weight to be given that  
evidence. Judges in Canada cannot take judicial notice of the unique  
cultural traditions of each of the various First Nations in Canada that give  
authenticity to their oral history. Some decisions relying on oral history  
(Delgamuukw … for example) involved a considerable amount of  
evidence about the particular culture and cultural practices which gave  
reliability to that oral history. Unfortunately, no evidence was given to  
me about that part of the culture and traditions of the Cree First Nations,  
of which Ironeagle is part.  
[679] Similarly, the Court in R. v. Jacobs found that the Sto:lo community had a  
type of oral history, known as the Sqwelqwel or “true history”, that also contained  
circumstantial guarantees of reliability. The Court observed that:  
Its cultural legitimacy is established by ‘oral footnoting’, a process  
involving consideration of the respect accorded by the community to  
both the speaker and his or her lineage through which the story has been  
597  
[2000] 2 C.N.L.R. 163 (Sask. P.C.), para. 3.  
Page: 282  
passed back to its source. ... Only those speakers providing appropriate  
footnotes were considered reliable. Controls by the community were  
exercised in a subtle fashion; those who did not provide proper  
footnoting were not invited to speak at future public gatherings.598  
[680] There was no similar indicia of circumstantial reliability in the present case.  
The viva voce testimony was limited largely to the living memory of the litigants  
and the Klu’skap stories presented appear to have their origins in the mid-19th  
century. There was nothing presented which would indicate that there is anything  
special or particularly trustworthy about the evidence.  
V.  
HISTORICAL EVIDENCE - TREATY RIGHTS  
A. The Province’s View of The Evidence on Treaty Rights  
1. Introduction  
[681] As noted above, each of the Defendants claim treaty rights over an area  
which includes the territory comprising the Bay du Nord Wilderness Area. The  
outer limit of the claimed territory is undefined but, at a minimum, includes  
roughly 50% of the Island of Newfoundland.  
[682] The specific treaty right claimed is the right to fish, hunt, and trap for  
subsistence and to earn what is described by the Defendants as a “moderate  
living”.599 This claim is made in addition to the common law aboriginal rights  
claimed by each Defendant.  
[683] Each Defendant claims to be the modern day beneficiary of four treaties,  
namely:  
•
The 1725 treaty negotiated at Boston by Paul Mascarene, on behalf of  
Nova Scotia, and subsequently ratified at Annapolis Royal in 1726 by  
598  
599  
R. v. Jacobs, [1999] 3 C.N.L.R. 239 (B.C.S.C.), para. 57.  
See the discussion of the ‘truckhouse clause” by the Supreme Court of Canada in its consideration of  
the March 10, 1760 Treaty between the Nova Scotia Governor and Council and the Richibuctou, La Have and  
Shubenacadie Mi’kmaq in R. v. Marshall (1999), 177 D.L.R. 513 (S.C.C.) [Marshall #1].  
Page: 283  
John Doucett, Lieutenant Governor of Annapolis, and seventy-seven  
Mi’kmaq, Maliseet and Passamaquoddy representatives.  
•
•
The 1752 treaty signed by Nova Scotia Governor Peregrine Thomas  
Hopson and Chief Jean Baptiste Cope, on behalf of the Shubenacadie  
Band of Mi’kmaq.  
The treaty of November, 1759, between Chief Jeannot and six other  
chiefs on behalf of the Cape Breton Mi’kmaq Band and General  
Whitmore, following articles of capitulation presented by Lieutenant  
Schomberg and accepted by Chief Jeannot on November 20, 1759, at  
Merigomish.  
•
The treaty of June 25, 1761, signed at Belcher’s Farm in Halifax, by  
Chief Jeannot, on behalf of the Cape Breton Mi’kmaq Band, and  
Lieutenant Governor Belcher and colonial officials, on behalf of Nova  
Scotia.  
2.  
The Treaty Of 1725-26  
(a) Wording and Circumstances of Signing  
[684] From 1722 to1725, Britain and France were formally at peace. However,  
their aboriginal allies continued to carry on frontier conflicts, largely in defence of  
territorial interests throughout New England and Nova Scotia. The Mi’kmaq,  
Maliseet and Passamaquoddy actively participated with northern New England  
natives in a war against British settlers and colonial governments.600 While the  
Mi’kmaq operated on the fringe of this war, their harassment of New England  
fishermen fishing at Canso and their capture of as many as twenty-five New  
England vessels in 1722 off the coast, from Cape Sable to Canso, quickly placed  
them in the same category as other enemies of New Englanders.601  
600  
Stephen Patterson, “Anatomy of a Treaty: Nova Scotia’s First Native Treaty in Historical Context”  
(1999), 48 U.N.B.L.J. 41, p. 47 [Patterson Supporting Documents, vol. 6, Tab 82]. The Wabanaki Confederacy  
consisted of native peoples inhabiting the Atlantic Coast, namely the eastern Abenaki, Passamaquoddy and Maliseet.  
The Mi’kmaq, while not formally members, were allies of the Confederacy. See Bill Wickens, “26 August 1726: A  
Case Study in Mi’kmaq-New England Relations in the Early 18th Century” (1993) Acadiensis 5 [Patterson  
Supporting Documents, vol. 6, Tab 83].  
601  
Patterson, note 600 above, pp. 47-8.  
Page: 284  
[685] In the fall of 1724, Lieutenant Governor Dummer of Massachusetts took the  
initiative in establishing a cease fire and setting up negotiations with the natives.  
Four Penobscot delegates presented themselves at the negotiations in Boston in  
November 1725. They were referred to as the four delegates of the so-called  
“eastern Indians,” there to negotiate on behalf of the Abenaki, Maliseet,  
Passamaquoddy and Cape Sable Mi’kmaq.602 The Nova Scotia council responded  
positively to the invitation, set down its treaty objectives and appointed Paul  
Mascarene to represent the colony at the negotiations.  
[686] Draft treaties were prepared for Nova Scotia, Massachusetts and New  
Hampshire with the understanding that each agreement would be ratified in 1726  
by the natives who lived in each of these jurisdictions.  
[687] During the summer of 1726, the treaty instruments negotiated in Boston the  
previous year were ratified at Casco Bay in Maine for those aboriginals living in  
Maine and New Hampshire and at Annapolis for those living in Nova Scotia. Dr.  
Patterson testified this method of ratification was the British way of saying “we  
have separate British jurisdictions, each with its own government, and each is to  
deal with its own natives.”  
[688] Both the draft treaty and the ratified treaty contained the same articles and  
differed only in their preambles. On June 4, 1726 the first natives came to sign the  
draft treaty that had been negotiated in Boston. Once the treaty was seen and  
ratified, it became a binding agreement for those bands who were signatories to it.  
[689] While the Mascarene Treaty was redrafted slightly at Annapolis Royal to  
reflect the fact that John Doucett, Lieutenant-Governor of Annapolis, was in  
charge, in substance the document remained as Mascarene had first written it. The  
articles of the treaty consisted of a native submission and several promises  
summarized by Dr. Patterson as follows:  
•
Indians acknowledge King George’s jurisdiction and dominion over the  
territories of Nova Scotia and make submission.  
•
Indians will not molest king’s subjects in their settlements, present or future, or in  
carrying on their trade.  
602  
Patterson, Expert Report, p. 35.  
Page: 285  
•
•
•
Indians promise restitution for robbery or outrage.  
Indians will not help soldiers run away.  
Misunderstandings between English and Indians will be redressed according to  
the King’s laws as opposed to private revenge.  
•
Indians will release any prisoners.603  
[690] In addition to the principal treaty document, which contained the native  
signatures, there were reciprocal promises made by the British, signed by  
Mascarene at Boston and Doucett at Annapolis Royal. The Doucett promises, as  
they came to be known, stated:  
•
•
Indians shall have the protection and friendship of the Nova Scotia government.  
Indians shall not be molested in their persons, hunting, fishing, planting, or the  
exercise of their religion.  
•
Indians suffering injury by the King’s subjects will have satisfaction according to  
King’s laws and will have benefits equal to other subjects.  
•
•
Indians bringing back runaway soldiers will be rewarded.  
Indians in custody at Annapolis will be released.604  
[691] The two treaty instruments were physically separate and their subsequent  
histories quite different. The articles of submission and agreement would be  
subsequently renewed in 1749, by the Maliseet and the Checnecto band of  
Mi’kmaq, and in 1760, by the Maliseet, and Passamaquoddy, and the Richibuctou,  
La Have and Shubenacadie-Musquodoboit Mi’kmaq. The Doucett promises, so far  
as the archival record discloses, were never discussed again.605  
603  
Patterson, Expert Report, p. 36; Treaty of Peace and Friendship, December 15, 1725 (CO 217/38), f. 98  
[Province’s Historical Documents, vol. 28, CD 332].  
604  
Patterson, Expert Report, p. 37; Treaty of Peace and Friendship, December 15, 1725 (CO 217/38), f. 99  
[Province’s Historical Documents, vol. 28, CD 332].  
605  
Patterson, “Anatomy of a Treaty,” p. 61 [Patterson Supporting Documents, vol. 6, Tab 82]; see also  
Patterson, Expert Report, p. 50.  
Page: 286  
(b) The Parties to the Treaty of 1725-26  
[692] The Defendants claim the 1726 treaty marked the beginning of an ongoing  
treaty-making process which continued up until 1763. The Defendants argue that  
the June 25, 1761 Halifax Treaty with the Cape Breton Mi’kmaq was a renewal of  
previous treaties, including that of 1726. The Defendants claim ancestral links to a  
Cape Breton band. Given what it sees as the relatively recent migration of the  
Mi’kmaq to Newfoundland, the Province accepts it is reasonable to conclude that  
the Defendants may have ancestral links to parts of Nova Scotia including Cape  
Breton. The Province notes, however, the Defendants called no genealogical  
evidence to establish such a link between any of the Defendants and one or more of  
the existing bands in Nova Scotia or Cape Breton. The Province submits that, in  
any event, the Miawpukek Band cannot be viewed as a community with which  
treaties were signed, since the evidence is that the Miawpukek Band of Conne  
River was not established at the time of the execution of any of the relevant  
treaties. (See, the Province’s view of the “Emergence of Conne River”, III.B.7  
above).  
[693] The Province also submits that, even assuming the existence of an ancestral  
link, the Defendants’ “renewal” argument further presumes that the Cape Breton  
Band were signatories to the 1725-26 treaty, which the Province contends was not  
the case.  
[694] On June 4, 1726, seventy-seven Mi’kmaq, Maliseet and Passamaquoddy  
delegates gathered at Annapolis Royal to ratify the agreement negotiated by Paul  
Mascarene in Boston the previous year.606  
[695] However, despite the hope of the British, the 1726 treaty did not have the  
adherence of the Mi’kmaq people as a whole. While all Mi’kmaq bands were  
invited to sign the treaty, Dr. Patterson testified the only Mi’kmaq band named in  
the 1726 Treaty were the Cape Sables.  
606  
The ratification of the Massachusetts and New Hampshire treaties at Casco Bay in 1726 was not as  
successful as the British had hoped. Many native groups were not taking seriously the British efforts to treat with  
them. Only the Penobscot presented themselves to ratify the agreement; the Kennebec and other eastern Abenaki  
tribes failed to appear. Patterson, “Anatomy of a Treaty,” p. 55 [Patterson Supporting Documents, vol. 6, Tab 82].  
Page: 287  
[696] The Province submits the 1726 treaty was not ratified by any Cape Breton  
band. The Province notes only one individual is identified as being from Cape  
Breton. In the Province’s view, he was acting on his own accord as there is  
nothing to indicate he acted on behalf of any Cape Breton chief or band, and Dr.  
Patterson’s opinion was that this was unlikely since Cape Breton was outside Nova  
Scotia at that time.607  
[697] Dr. Patterson testified:  
... [I have] looked over the 77 total names of signatories from the native side and  
looked at their identifying marks, that is they are usually identified from their  
band, the chief of the Shubenacadie, the chief of La Have. Those are identified as  
such, and I cannot find representation from several of the important Mi'kmaq  
bands in the province. For example, no chief from anywhere on the north shore  
of Nova Scotia, that would be Antigonish, Pictou, Merigomish.  
...  
There is no ratification from Miramichi or points north of Miramichi, such as  
Pokemouche.  
[698] The Defendants do not assert they are members of the Cape Sable Mi’kmaq  
band or that one or more of these bands have been replaced by the present  
Miawpukek Band. The Province submits the Mi’kmaq Band of Conne River is a  
separate and distinct community that has no connection to treaties made in Nova  
Scotia with the local Nova Scotia communities.  
[699] The Province also notes the ratification of the 1725 treaty at Annapolis  
Royal referred to His Majesty as being possessor of the Province of Nova Scotia or  
Acadia with the tribes described as belonging to or inhabiting His Majesty’s  
Province of Nova Scotia or Acadia.608 There was no mention of Cape Breton.  
[700] The explanation, says the Province, was provided by Dr. Wicken during  
cross-examination. Cape Breton did not constitute part of Nova Scotia at the time  
607  
Patterson, Expert Report, p. 38.  
608  
Patterson, Expert Report, pp. 35-37; and Treaty of Peace and Friendship, December 15, 1725 (CO  
217/38), ff. 98-99 [Province’s Historical Documents, vol. 28, CD 332].  
Page: 288  
of the 1726 Treaty and, further, it did not fall under British control but instead was  
controlled by the French pursuant to the 1713 Treaty of Utrecht.609  
[701] The Province submits it is not surprising, then, that there is no evidence that  
the Cape Breton Mi’kmaq, as a collective, were signatories to this treaty.  
According to Dr. Patterson:  
... not all bands or communities of the Mi’kmaq were represented. One  
individual is identified as “from Cape Breton,” but there is nothing to indicate  
that he acted for the Cape Breton chief or band, and it is unlikely that he did since  
Cape Breton was outside of Nova Scotia at that time.610  
[702] Dr. Prins also challenged the suggestion that the Cape Breton Band was  
signatory to this treaty. Dr. Prins, in his critique of the Miawpukek land claim  
submission prepared for the Miawpukek Band, stated:  
Not until the 1763 Treaty of Paris was the British Crown in charge of all  
of Mi’kmaq Country. Accordingly, what transpired between the  
Mi’kmaq and British between 1713 and 1763 did not have much  
relevance to the Mi’kmaq of Prince Edward Island, Cape Breton, and  
others ranging in territories beyond the British claim area. ... Although  
Dummer’s Treaty was ratified in Anappolis [sic], NS, 1726, there is no  
evidence that all Mi’kmaq chiefs did so, let alone the Chief of Cape  
Breton. This is particularly important to note, because the 1713 Treaty of  
Utrecht provided that Cape Breton remained under the French Crown,  
whereas “Acadia” was ceded to the British. ... Accordingly, for a Cape  
Breton Mi’kmaq Chief, allied to the French, to have signed a treaty in  
which he “submitted” himself to the British would have constituted  
political suicide.611  
[703] The Province submits it is clear, then, that no Mi’kmaq Bands in Cape  
Breton were signatory to the 1725-1726 treaty ratified at Annapolis Royal. It  
609  
In 1713, Britain established the colony of Nova Scotia after France ceded Acadia “according to its  
ancient limits” in the Treaty of Utrecht. The present provinces of New Brunswick and Nova Scotia minus Cape  
Breton made up the Nova Scotia of the period 1713-1763. In 1763, by the Treaty of Paris, France surrendered Cape  
Breton and Isle St. Jean (P.E.I.), which were temporarily joined to Nova Scotia. Thus, by 1763, almost all of the  
traditional Mi'kmaq homeland fell within the jurisdictional limits of the colony or province of Nova Scotia.  
Patterson, Expert Report, p. 1.  
610  
Patterson, Expert Report, p. 38.  
611  
Prins, “Mi’kmaq Territorial Claims in Newfoundland” (1996), pp. 72-73.  
Page: 289  
stresses with Dr. Prins that it would have been “political suicide” for them to have  
done so, as the Cape Breton Mi’kmaq were outside the ambit of the Province of  
Nova Scotia (or Acadia) at the time and remained French allies.  
[704] The Province argues that, since neither of the Defendants can be considered  
a modern day beneficiary of the 1725-1726 Treaty, this Court need proceed no  
further in the consideration of this Treaty. The Province addressed the following  
questions in the alternative.  
(c) Is the 1725-26 Treaty a Valid and Subsisting Treaty?  
[705] The objective of the 1725-1726 treaty was to establish peace between Britain  
and the native groups involved in a war, referred to by New Englanders as  
Dummer’s War, waged against the British from 1722-1725 in Nova Scotia and  
New England.612  
[706] In the early 17th century, both England and France asserted sovereignty over  
parts of what are now the Maritime Provinces and Maine. By the terms of the  
Treaty of Utrecht (1713), French sovereignty was reduced to Isle Royale (Cape  
Breton) and Isle St. Jean (Prince Edward Island), while Britain took possession of  
Acadia. This allowing the French to maintain their relationship with the Mi’kmaq.  
[707] The British hoped that the 1726 treaty would bring natives in their  
jurisdiction under their effective control. That treaty, however, would prove to be  
short- lived. After more than a century of French missionary activity and contact  
with the French, the Mi’kmaq remained steadfast in their alliance with the French.  
[708] The Province submits it is clear from the historical record that those  
Mi’kmaq groups who were signatories did not adhere to the treaty of 1726. As an  
example it refers to the following 1727 report of Louis XV:  
On Sieurs de Longueuil and Begon’s report that M. Gaulin, Missionary, had  
prevailed on the Micmaks and the Indians on the River St John to conclude peace  
with the English, his Majesty caused Sieur de St Ovide, Governor of Isle Royale,  
to be written to, with a view to obtain correct information on the subject, and had  
orders sent him at the same time to encourage hostilities. That officer has  
reported that the Micmaks had not made peace, and so far from M. Gaulin and  
612  
Patterson, “Anatomy of a Treaty,” p. 47 [Patterson Supporting Documents, vol. 6, Tab 82].  
Page: 290  
the other Missionaries having prevailed on these Indians to do so, that they had,  
on the contrary, incurred the displeasure of the English for having incited the  
Indians to continue the war; that it is true some young Micmaks and Indians of  
the River St John, who had been invited to make peace, had, in the month of July,  
1726, visited Port Royal, rather for the purpose of being entertained there than of  
negotiating a treaty; that the Governor had submitted propositions to them, but  
that their Chiefs had recalled them, and sent word to Sieur de St Ovide that they  
would refer them to him until the spring; that a party of 8 Micmaks had since  
pillaged an English vessel; that two of these Indians had been killed, and two  
others taken prisoners, and that this affair would again enkindle hatred and  
distrust among them; that the Indians assured him that they would not listen to  
the proposed Treaty of Peace, and seemed disposed to reject any proposals that  
might be made.613  
[709] French officials, particularly French missionaries, worked continuously to  
undermine Mi’kmaq adherence to the 1725-1726 treaty. French officials at  
Louisbourg were not pleased with the peace concluded between the Mi’kmaq and  
the British and therefore sought to convince the Mi’kmaq to treat the British as  
enemies.614  
[710] The role of the priests in organizing native hostility against the British was  
quite explicit. Both the Mi’kmaq and the Maliseet, under direct orders from  
priests, says the Province, served as couriers, scouts and warriors and assisted  
French soldiers in attacking Annapolis and other British settlements.615  
[711] An account by French officials at Quebec provides insight into the  
contemporaneous structure of the Mi’kmaq-French alliance:  
Father Germain, who is here [at Quebec], has represented to us the  
necessity of immediately sending to Beaubassin [on the Isthmus of  
Chignecto], at least, 100 [to] 120 barrels of flour, for the support of the  
Malecites and other Indians of different villages belonging to Acadia,  
with some munitions of war and some merchandise. Should these  
Indians not receive some aid, it is to be feared that distress will force  
them to have recourse to the English. We yielded to these  
613  
Louis XV to Messrs. de Beauharnois and Dupuy, April 29, 1727, in E.B. O’Callaghan, ed., Documents  
Relative to the Colonial History of the State of New-York, vol. IX, Paris Documents (Albany: Weed, Parsons and  
Company, Printers, 1855), p. 989 [Patterson Supporting Documents, vol. 4, Tab 40].  
614  
Wicken, “26 August 1726: A Case Study,” p. 20 [Patterson Supporting Documents, vol. 6, Tab 83].  
615  
Patterson, Expert Report, p. 23.  
Page: 291  
representations. Mr. Hocquart has sent two skiffs to Mr Maillard, the  
Indian missionary, with 400 lbs. of powder and 1000 lbs of lead and ball,  
30 blankets and some other articles, to be distributed among them by  
him, and 50 barrels of flour will be put on board Father Lacorne’s vessel,  
to be kept at Miramichi, whither boats will be sent for them this fall from  
Bay Verte. All this consumption greatly increases the expenses, but it is  
impossible to avoid them, without abandoning the Indians of Acadia and  
the Micmacs, who, of all the nations, are the most faithful to us.616  
[712] In August 1726, only two months after the signing of the treaty, a group of  
natives captured a Massachusetts fishing sloop at Mirligueche, Nova Scotia.617 In  
November, five of the captors (including three Mi’kmaq men) were found guilty of  
piracy and were executed by officials in Boston.618  
[713] On September 13, 1727, Governor de Brouillan was informed that, in  
retaliation for the Boston hangings, 25 to 30 “sauvages” had taken an English ship  
of about 70 tons off Port aux Basques, Newfoundland. The ship had been carrying  
some 300 to 400 quintals of cod, among other goods, all of which the “sauvages”  
had taken to their mission at Miriligeck.619  
616  
“Journal of Occurrences in Canada, 1746, 1747,” in O’Callaghan, ed., Documents Relative, vol. X  
(1858), p. 126 [Patterson Supporting Documents, vol. 4, Tab 43].  
617  
Mirligueche is the Mi’kmaq name for present day Lunenburg, Nova Scotia. See, Wicken, “26 August  
1726: A Case Study,” p. 5 [Patterson Supporting Documents, vol. 6, Tab 83].  
618  
Prins, The Mi’kmaq: Resistance, p. 140 [Consent 145]. Letter from Governor de Brouillan to Lt.  
Governor Armstrong, October 3, 1727 in Calendar of State Papers, Colonial Series, America and West Indies, vol.  
XXXV, 1726-1727, Doc. No. 789 (xiv), p. 402 [Province’s Historical Documents, vol. 29, CD 338]; Letter from de  
Brouillan to the Minister, November 20, 1727 (France: Archives Nationales de France, Colonies C11B/9), ff. 64-70  
[Province’s Historical Documents, vol. 29, CD 340].  
619  
Letter from de Brouillan to the Minister, September 13, 1727 (France: Archives Nationales de France,  
Colonies C11B/9), ff. 50-50v [Province’s Historical Documents, vol. 29, CD 337]; see also Letter from Lt.  
Governor Armstrong to Governor de Brouillan, 1727, Calendar of State Papers, Colonial Series, America and West  
Indies, vol. XXXV, 1726-1727, Doc. No. 789 (xv), pp. 402-403 [Province’s Historical Documents, vol. 28, CD  
335]; Letter from Governor de Brouillan to the Minister, November 20, 1727 (France: Archives Nationales de  
France, Colonies C11B/9), ff. 66-68 [Province’s Historical Documents, vol. 29, CD 340].  
Page: 292  
[714] When war erupted between France and England in 1744, the Mi’kmaq allied  
themselves with France.620  
[715] The Province submits the historical record amply justifies Dr. Patterson’s  
conclusion that “the subsequent behaviour of both Mi’kmaq and British indicates  
that neither felt bound by the treaty of 1725-1726 and that both believe that the  
treaty was terminated by their hostilities.”621  
[716] The Province argues the historical record does not support the argument that  
there existed a unified treaty-making process incorporating all treaties from 1726 to  
1761. Even if the Cape Breton Band could be construed to be a signatory, says the  
Province, this submission ignores the effect of subsequent hostilities. According to  
Dr. Patterson:  
... the idea of linking all the Mi’kmaq treaties together as if they applied to all  
Mi’kmaq, and as if all provisions survived historically, appears to be a twentieth-  
century political argument as opposed to a verifiable historical truth. The  
interpretation ignores who signed each of the treaties, as well as what the treaties  
say on their face. It takes no account of the impact of hostilities, or of the  
possibility that war represented a mutual termination or extinguishment of earlier  
agreements, especially of peace agreements. Moreover, it takes a one-sided view  
that promises once made by the British, even if only to some Mi'kmaqs, were  
perpetual and inclusive regardless of what the Mi'kmaq people might have done  
subsequently. According to this view, treaty terms settled in 1725 survived  
subsequent hostilities and found their way into later treaties whether specifically  
mentioned or not. This interpretation may serve a present-day strategy but it  
violates fundamental principles of treaty interpretation, and is ahistorical.622  
620  
O’Callaghan, ed., Documents Relative, vol. X (1858), pp. 3-19, 38-132 [Patterson Supporting  
Documents, vol. 7, Tab 84]. See also Dr. von Gernet’s comments regarding the 1726 treaty and the adherence to the  
treaty by the Cape Breton Mi’kmaq, in von Gernet, Expert Report, p. 183, note 1122 .  
621  
Patterson, Expert Report, at p. 38.  
622  
Patterson, Expert Report, p. 31. According to Dr. Patterson, “The covenant chain, strictly speaking,  
was an alliance system and diplomatic protocol of the Iroquois. The British made extensive use of the Iroquois as  
intermediaries in their relationship with many of the Native tribes of the North American interior ... To my  
knowledge, the Mi’kmaq were never part of a covenant chain with the Iroquois. They never formed an alliance with  
the Iroquois, they were never drawn into a covenant chain relationship with the Iroquois, that is a diplomatic  
relationship with the Iroquois, at least in the period up to, say, 1760 or 1763. I see no evidence of that. It’s true that  
the Mi’kmaq and the Iroquois have had a relationship in the 19th and 20th Centuries, but that’s considerably after  
the fact, and I’m not disputing that. To me, from the basis of the evidence for the 18th Century, I see no historical  
proof that the Mi’kmaq were part of a larger alliance system that included the Iroquois or the so-called covenant  
chain.”  
Page: 293  
[717] The Province notes in addition that a treaty made at Halifax between the  
Governor of Nova Scotia and the Maliseet-Passamaquoddy on February 23, 1760  
explicitly provided for the renewal of the terms of the 1725 treaty, as ratified in  
1726. However, in stark contrast, none of the treaties made with the Mi’kmaq in  
Halifax provided for a renewal of earlier treaties.623  
[718] As Dr. Patterson explained:  
While they were based on the Maliseet-Passamaquoddy Treaty, the  
Mi’kmaq treaties looked quite different in form. The various articles  
contained in the former were repeated, but not as a renewal of earlier  
treaties. Rather, they began de novo, as if this were the first treaty the  
Mi’kmaq had ever made. There was compelling logic to this: many  
Mi’kmaq communities had not subscribed to earlier treaties and in fact  
this was their first. As written, the several Mi’kmaq treaties were  
identical in substance; with small variations in wording, they have been  
accurately described as “separate but similar.” But the process of treating  
with each group separately allowed each chief the opportunity of raising  
issues of concern to his band, and thus the final agreements – written and  
unwritten – varied both in ways that we know and ways that we do not.  
Each must be read in the context of its time and place. For some at least,  
there are minutes of what was said, permitting a reconstruction of events  
and analysis of what was agreed to.624  
[719] The Province notes that if this Court is satisfied the treaty of 1725-1726 was  
subsequently overtaken by hostilities and was not “renewed” on June 25, 1761, a  
consideration of the geographic scope and terms of the treaty is unnecessary. The  
Province addressed the following in the further alternative.  
(d) Geographic Scope of the Treaty Right  
623  
Following the renewal of the treaty, the natives acknowledged they had violated their earlier  
agreements. See Treaty of Peace and Friendship concluded with the Delegates of the St. John’s and Passamaquody  
Tribes of Indians, February 23, 1760 (CO 217/18), ff. [3-31] [Province’s Historical Documents, vol. 93, CD 1097]  
and Patterson, Expert Report, pp. 51-53.  
624  
Patterson, Expert Report, at p. 53. At page 41 of his report, Dr. Patterson points out that it is incorrect  
to assume that the 1752 treaty had general application in its time and that its provisions have survived to the present.  
Such interpretation ignores: the fact that the treaty was signed by only one band; the subsequent hostilities between  
the Mi’kmaq and the British, especially during the Seven Years’ War; and the fact that all Mi’kmaq bands or  
districts signed treaties with the Crown in right of Nova Scotia in 1760-1761 and these treaties did not renew or refer  
to the provisions of any previous treaty.  
Page: 294  
[720] Dr. Stephen Patterson pointed out that throughout the 1726 Treaty the  
emphasis repeatedly is on Nova Scotia. When asked, during his testimony, to what  
the phrase “within the said province” would refer, Dr. Patterson gave the following  
opinion:  
It would refer to Nova Scotia. The submission [of the natives to the British  
Crown] makes it clear that it deals with Nova Scotia, “and the said province  
thereafter would be the Province of Nova Scotia...”625  
[721] The Province submits the terminology used by the Nova Scotia Council  
when it drew up its treaty terms for the negotiations at Boston, in November 1724,  
clearly delineated the jurisdiction for which the treaty terms were intended. The  
Council’s first demand for the natives would be for them to:  
... Acknowledge That the Province of Nova Scotia (alias Accadia) to its  
Utmost Extent & Boundarys, With all its Rivers, Cricks, Bays & Islands  
&ca thereunto belonging; Belongs & Appertains (not only by Conquest)  
but as Settled at the Treaty of Utricht, to the Crown of Great Britain: And  
that his Majestys King George and his Heirs and Successors are the Sole  
Owners & the only True & Lawfull Proprietors of the Same.626  
[722] The Province notes the language of the 1726 Treaty makes no mention of  
territory outside of Nova Scotia. There is no reference to Cape Breton, nor is there  
any reference to Newfoundland.  
[723] As noted above, when the 1726 Treaty was ratified at Annapolis Royal, Cape  
Breton was not part of Nova Scotia. At that time Cape Breton was still occupied,  
administered and controlled by the French under the terms of the 1713 Treaty of  
Utrecht. The British hope that all Mi’kmaq bands or communities would be  
represented by this treaty went unfulfilled. One individual was identified as “from  
Cape Breton,” but there is nothing, says the Province, to indicate that he acted in  
any capacity for the Cape Breton chief or represented the band in any manner.627  
625  
For the text of the documents negotiated and ratified at Boston and Annapolis, respectively see Treaty  
of Peace and Friendship, December 15, 1725 (CO 217/38), ff. 98-99 [Province’s Historical Documents, vol. 28, CD  
332]; Articles of Peace and Agreement, June 4, 1726 (CO 217/38), ff. 102-103 [Patterson Supporting Documents,  
vol. 5, Tab 62].  
626  
Patterson, “Anatomy of a Treaty,” p. 52 [Patterson Supporting Documents, vol. 6, Tab 82].  
627  
Patterson, Expert Report, p. 38.  
Page: 295  
Based on the fact that there is no reference in the treaty to Cape Breton, unlike  
Nova Scotia and Acadia, and given the complete absence of any Cape Breton chief  
to ratify the document, the Province argues it is clear that the treaty did not apply to  
Cape Breton,628 much less Newfoundland.  
[724] The Province notes the Defendants’ expert, Dr. Wicken, agreed that the  
British had no authority over Cape Breton:  
[Hearn, Q.C.]  
So we have a situation where the signing authority, from the  
British side, his authority is restricted to the province of Nova  
Scotia or Acadia, given the reservation that you mention of some  
question as to how far the boundaries extended., whether it also  
included what’s now New Brunswick.  
[Dr. Wicken]  
[Hearn, Q.C.]  
[Dr. Wicken]  
That’s right.  
But there’s [no] dispute that he had no authority over Cape Breton.  
No, there’s no dispute.  
[725] The Plaintiff submits it clearly could not have been the intent of the British  
to treat for an area that was beyond their effective control.629  
3.  
The Treaty of 1752  
(a) The Wording  
[726]  
Each Defendant claims to be the beneficiary of a treaty ratified in  
Halifax, Nova Scotia in 1752 which reads:  
Treaty or Articles of Peace and Friendship Renewed between  
His Excellency Peregrine Thomas Hopson Esquire Captain General and  
Governor in Chief in and over His Majesty’s Province of Nova Scotia or  
Accadie. Vice Admiral of the same and Colonel of One of His Majesty’s  
Regiments of Foot, and His Majesty’s Council on behalf of His Majesty.  
and  
628  
The Defendants expert, Dr. Prins, appears to have accepted this. See, Prins, “Mi’kmaq Territorial  
Claims,” note 608 above, pp. 71-73. The Defendants have nevertheless not withdrawn their reliance on this treaty.  
629  
Patterson, Expert Report, p. 38.  
Page: 296  
Major Jean Baptiste Cope chief Sachem of the X X X Tribe of Mick Mack  
Indians, Inhabiting the Eastern Coast of the said Province and Andrew Hadley  
Martin, Gabriel Martin and Francis Jeremiah members and Delegates of the said  
Tribe for themselves and their said Tribe their heirs and the heirs of their heirs  
forever. Begun, made and concluded in the manner form and Tenor following  
vizt.  
1.  
It is agreed that the Articles of Submission and Agreement made at  
Boston in New England by the Delegates of the Penobscot Norridgwolk and St.  
Johns Indians in the year 1725 Ratifyed and confirmed by all the Nova Scotia  
Tribes at Annapolis Royal in the Month of June 1726 and lately Renewed with  
Governor Cornwallis at Halifax and Ratifyed at St. Johns River, now read over  
Explained and Interpreted shall be and are hereby from this time forward  
renewed, reiterated and forever confirmed by them and their Tribe and the said  
Indians for themselves and their Tribe and their Heirs aforesaid do make and  
renew the same Solemn Submissions and promises for the strict observance of all  
the Articles therein Contained as at any time heretofore hath been done.  
2.  
That all Transaction during the late War shall on both sides be burried in  
Oblivion with the Hatchet, And that the said Indians shall have all favour,  
Friendship and Protection shewn them from this His Majesty’s Government.  
3.  
That the said Tribe shall use their utmost endeavours to bring in the other  
Indians to Renew and Ratify this Peace and shall discover and make herein any  
attempts or designs of any other Indians or any Enemy whatever against His  
Majesty’s Subjects within this Province so soon as they shall know thereof and  
shall also hinder and Obstruct the same to the utmost of their power, and on the  
other hand if any of the Indians refusing to ratify this Peace shall make War upon  
the Tribe who have now confirmed the same; they shall upon Application have  
such aid and Assistance from the Government for their Defence, as the case may  
require.  
4.  
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  
Truckhouse needfull at the River Chibenaccadie or any other place of their resort,  
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 mean time  
the said 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.  
5.  
That a Quantity of bread, flour, and such other Provisions as can be  
procured, necessary for the Familys, and proportionable to the number of the said  
Indians shall be given them half yearly for the time to come; and the same regard  
shall be had to the other Tribes that shall hereafter Agree to renew and Ratify the  
Peace upon the Terms and Conditions now Stipulated.  
Page: 297  
6.  
That to Cherish a good harmony and mutual Correspondance between the  
said Indians and this Government His Excellency Peregrine Thomas Hopson  
Esqr. Capt. General and Governor in Chief in and over his Majesty’s Province of  
Nova Scotia or Accadie, Vice Admiral of the same and Colonel of one of His  
Majesty’s Regiments of Foot, hereby promises on the part of His Majesty, that  
the said Indians shall upon the first day of October Yearly, so long as they shall  
Continue in Friendship, Receive Presents of Blankets, Tobacco, some Powder  
and Shott and the said Indians promise once every Year, upon the said first of  
October, to come by themselves or their Delegates and Receive the said Presents  
and Renew their Friendship and Submissions.  
7.  
That the Indians shall use their best Endeavours to save the lives and  
goods of any People Shipwrecked on this Coast where they resort and shall  
Conduct the People saved to Halifax with their Goods, and a Reward adequate to  
the Salvadge shall be given them.  
8.  
That all Disputes whatsoever that may happen to arise between the  
Indians now at Peace, and others His Majesty’s Subjects in this Province shall be  
tryed in His Majesty’s Court of Civil Judicature, where the Indians shall have the  
same benefit, advantage and Priviledges as any others of His Majesty’s Subjects.  
In Faith and Testimony whereof the Great Seal of the Province is hereunto  
Appended, and the Partys to these Presents have hereunto interchangeably set  
their Hands in the Council Chamber at Halifax this 22nd day of Nov. 1752 in the  
26th Year of His Majesty’s Reign. ... .”630  
(b) The Parties to the Treaty of 1752  
[727] The Province notes Mr. Justice Binnie, in Marshall #1, specifically  
concluded that this treaty was between the Crown and the Shubenacadie Band of  
Mi’kmaq:  
In 1749, following one of the continuing wars between Britain and  
France, the British Governor at Halifax had issued what was apparently  
the first of the Proclamations “authorizing the military and all British  
subjects to kill or capture any Mi’kmaq found, and offering a reward”. ...  
By 1751 relations had eased to the point where the 1749 Proclamation  
was revoked, and in November 1752 the Shubenacadie Mi’kmaq entered  
into the 1752 Treaty ... .631  
630  
Treaty of Peace and Friendship, November 22, 1752 (CO 217/40), ff. 379-388 [Patterson Supporting  
Documents, vol. 5, Tab 65].  
631  
R. v. Marshall #1, note 599 above, pp. 526-527, para. 15.  
Page: 298  
[728] Dr. Patterson confirmed that the Treaty of 1752 was of limited applicability.  
He testified:  
... It’s a Mi’kmaq treaty that was signed by one chief who said he  
represented 90 to 100 people. He represented one band. His band was  
the Shubenacadie band, and he even explained to the British where they  
could be found. They were out on the eastern shore, east of Jeddore in  
1752. He was very specific. Now, subsequent to the signing of that  
treaty it has been claimed by some, historians or others, that the Treaty of  
1752 was a general Mi’kmaq treaty and it applied to all Mi’kmaq. Well,  
my point here is I don’t have any evidence of that. Unless I have  
concrete evidence that other Mi’kmaq people adhered to the treaty  
through a person empowered to adhere to the treaty, then it’s not a  
general Mi’kmaq treaty. It is simply a treaty with Jean Baptise Cope,  
Chief Sachem of the Shubenacadie band of the Mi’kmaq as resident in  
Nova Scotia on the eastern shore in 1752.  
...  
... When Major Cope came to Halifax first in September of 1752 he was  
asked by the Council of Nova Scotia, whom do you represent, who are  
you. Major Jean Baptise Cope, he said, and my tribe is made up of 40  
men who live on the east coast not far from here. In other words, he  
never claimed, at any time, that he represented more than a single village  
or a single band of the Mi’kmaq. ...  
[729] Dr. Wicken also testified the 1752 Treaty was signed specifically with the  
Chief of the Shubenacadie Band and was of limited applicability. He said:  
... the 1752 Treaty is signed specifically with Jean Baptist Cope, who is  
known within the documentation as the chief of [Shubenacadie]. There is  
some discussion, both within the Mi’kmaq communities today and  
among historians, whether or not Jean Baptist Cope represents a larger  
group of Mi’kmaq, sometimes who are known as the Grand Council.  
That is the Grand Council that represents all Mi’kmaq communities,  
including Cape Breton or Unimaki, within Atlantic Canada. However,  
within at least the scant documentation, there is no reference to Jean  
Baptist Cope as representing this larger political entity.  
[730] Dr. Wicken also acknowledged that the 1752 Treaty signed with the  
Shubenacadie did not include the Cape Breton Mi’kmaq:  
[Dr. Wicken]  
There is a subsequent treaty after the August 1749 Treaty which is signed  
with Shubenacadie on November 22nd in 1752.  
[Hearn, Q.C.]  
[Dr. Wicken]  
That’s with Sebastian Cope?  
Jean Baptiste Cope.  
Page: 299  
[Hearn, Q.C.]  
[Dr. Wicken]  
[Hearn, Q.C.]  
Jean Baptiste Cope, I’m sorry.  
And there’s three other signatories.  
And that treaty, again, did not include the Cape Breton  
Mi’kmaq?  
[Dr. Wicken]  
Not to my knowledge.  
[731] The Plaintiff notes there is no suggestion (or evidence) that the Defendants  
are members of, or have ancestral links to, the Shubenacadie Band, with whom the  
treaty was signed, or that this treaty applied to either the Cape Breton Mi’kmaq, or  
to the Miawpukek Band at Conne River. In short, says the Province, there is no  
evidence upon which the Defendants can claim to be the modern day beneficiaries  
of this treaty.  
[732] The Province submits that if this Court concludes that none of the  
Defendants are beneficiaries of the 1752 Treaty, the Court need go no further in its  
consideration of this treaty. The Province advanced the following argument in the  
alternative.  
(c) Is the Treaty Valid and Subsisting?  
[733] The majority of the Supreme Court of Canada in Marshall #1 had the  
following to say regarding the 1752 Treaty:  
In Simon, Dickson, C.J.C., at p. 404, concluded that on the basis of the  
evidence adduced in that case, “[t]he Crown has failed to prove that the  
Treaty of 1752 was terminated by subsequent hostilities” and left the  
termination issue open (at pp. 406-407). The Crown led more detailed  
evidence of hostilities in this case. It appears that while the British had  
hoped that by entering the 1752 Treaty other Mi’kmaq communities  
would come forward to make peace, skirmishing commenced again in  
1753 with the Mi’kmaq. France and Britain themselves went to war in  
1754 in North America. In 1756, as stated, another Proclamation was  
issued by the British authorizing the killing and capturing of Mi’kmaq  
throughout Nova Scotia. According to the trial judge, at para. 63, during  
the 1750s the “French were relying on the Mi’kmaq assistance in almost  
every aspect of their military plans including scouting and  
reconnaissance, and guarding the Cape Breton coast line”. This evidence  
Page: 300  
apparently persuaded the appellant at trial to abandon his reliance on the  
1752 Peace and Friendship Treaty.632  
[734] Unlike the Appellant in Marshall #1, the Defendants in this case have not  
conceded that the 1752 treaty was terminated by hostilities, thereby necessitating a  
closer look at this question.  
[735] Authorities at Annapolis spoke of Cope’s reputation for being perfidious  
with both the English and the French. The story being circulated was that Cope  
had signed the treaty in order to obtain presents from the British, but that he had no  
intention of honouring it.633 Thus, Governor Hopson felt uneasy about the treaty-  
making process, especially since the British had the signature of only the  
Shubenacadie Band.  
[736] In early 1753, stories of atrocities were reaching British officials. By July of  
1753, Governor Hopson was informed of an attack on the schooner he had sent to  
Jeddore to retrieve the provisions the British had given to Major Cope. Upon their  
arrival at Jeddore, Major Cope informed the crew of the schooner that he was in  
trouble with the other Mi’kmaq because of the treaty he had signed with the  
British. Anthony Casteel, the only survivor of the attack carried out by Cope and  
his followers, told Hopson that events thereafter turned violent, as all the  
Europeans on board were killed and scalped. During the attack, Major Cope took  
his copy of the 1752 treaty and threw it into the fire, proclaiming “that was the way  
they made Peace with the English.”634  
[737] A group of Mi’kmaq came to meet with the Nova Scotia Council in 1755 to  
discuss the issue of land being set apart for them. The British, however, were  
convinced that a much larger demonstration of the Mi’kmaq interest in peace was  
needed and that representations by a few Mi’kmaq individuals did not show a  
632  
R. v. Marshall #1, note 596 above, p. 599, para. 16.  
633  
Stephen Patterson, “Indian-White Relations in Nova Scotia, 1749-1761: A Study in Political  
Interaction,” (1993), 23 Acadiensis 23, p. 42 [Patterson Supporting Documents, vol. 2, Tab 13].  
634  
Prins, The Mi’kmaq: Resistance, p. 147. Casteel was apparently spared by the Mi’kmaq because he  
was French; see also Patterson, “Indian-White Relations,” note 630 above, p. 46 [Patterson Supporting Documents,  
vol. 2, Tab 13].  
Page: 301  
sufficient promise that they were going to be peaceful in the future. In reference to  
the 1752 treaty, the Council wrote:  
You are sensible that certain Captains of your Tribes (at least Persons  
styling themselves such) have appeared here and made Peace under  
promises of bringing in the other Tribes, That instead of bringing those  
Tribes, the Treaties have been immediately and perfidiously broken; and  
that when these things have happened and we have complained of them,  
the Tribes in general have disclaimed such Proceedings from whence it is  
apparent we can have no certain dependance on overtures made by one or  
a few Individuals.635  
[738] When conflict later erupted between Britain and France in 1755, the  
Mi’kmaq, as in the past, allied themselves with France. By the spring of 1756,  
Governor Lawrence had received reports, from all parts of the province, of  
Mi’kmaq and Maliseet attacks on both British vessels and settlers. On May 14,  
1756 the Council agreed to a new proclamation, repealing that which had  
accompanied the 1752 Treaty. The proclamation read:  
notwithstanding the earlier treaty of 1752, the Indians ... have of late, in a  
cruel and treacherous manner, killed and carried away divers of His  
Majesty's subjects in different parts of the province.636  
[739] The officers and subjects of the British Crown of Nova Scotia were therefore  
commanded:  
to annoy, distress, take and destroy the Indians inhabiting different parts  
of this province, wherever they are found.637  
635  
Council Minutes, February 13, 1755 (RG/1, vol. 187), pp. 187-189 [Patterson Supporting Documents,  
vol. 12, Tab 186]; Patterson, “Indian-White Relations,” note 630 above, p. 50 [Patterson Supporting Documents,  
vol. 2, Tab 13].  
636  
Patterson, “Indian-White Relations”, note 630 above, p. 52,  
637  
The same.  
Page: 302  
[740] The proclamation of 1756 effectively ended British treaty-making attempts,  
for the time being, on the grounds that the Mi’kmaq themselves had violated earlier  
treaties.638  
[741] Both Dr. Patterson and Dr. Prins are in agreement with counsel in Marshall  
#1 in concluding that this treaty was subsequently terminated by hostilities. Dr.  
Patterson writes:  
The evidence that this treaty was terminated by hostilities is readily  
available. My research has permitted a very close reconstruction of  
events. Nevertheless, interest in this treaty has revived in the twentieth  
century since it explicitly recognizes the rights of the Mi’kmaq to hunt  
and fish “as usual” and to trade to their “best advantage”. In other words,  
the issues dealt with in the Mascarene/ Doucett promises of 1725-26  
were dealt with in 1752 if in different words. The common mistake,  
however, is to assume that this treaty had general application in its time,  
and that its provisions have survived to the present. Such an  
interpretation ignores (1) the fact that the treaty was signed by one band,  
not by representatives of all Mi’kmaq bands or districts; (2) the historical  
record of subsequent hostilities between the Mi’kmaq, including the  
Shubenacadie, and the British, especially during the Seven Years’ War;  
(3) the fact that all Mi’kmaq bands or districts subsequently signed  
treaties of peace with the Crown in right of Nova Scotia during the years  
1760 and 1761, and that these treaties did not renew or even refer to the  
provisions of any previous treaty.639  
[742] The Province argues the evidence is uncontradicted and overwhelming that  
the 1752 Treaty with Cope was quickly repudiated by hostilities and is therefore no  
longer a valid and subsisting treaty.  
[743] The Province submits if this Court is satisfied that the Treaty of 1752 was  
subsequently overtaken by hostilities, a consideration of the geographic scope and  
terms of the treaty is unnecessary. The Province advanced the following in the  
further alternative.  
(d) Geographic Scope of the Treaty Right  
638  
Patterson, “Indian-White Relations,” note 633 above, p. 52 [Patterson Supporting Documents, vol. 2,  
Tab 13].  
639  
Patterson, Expert Report, p. 41. Dr. Prins also acknowledges that the 1752 treaty was terminated by  
subsequent hostilities between the Mi’kmaq and the British. See Prins, “Mi’kmaq Territorial Claims,” note 608  
above, p. 18, 63, 74-75.  
Page: 303  
[744] The Province submits it is clear from the language of the treaty and the  
surrounding circumstances that this was a local treaty made with the Shubenacadie  
Band of Mi’kmaq in Nova Scotia and had no application to the Mi’kmaq in Cape  
Breton,640 much less the Miawpukek Band in Newfoundland.  
[745] Dr. Patterson testified:  
[Dr. Patterson]  
... it is my interpretation that the treaty of 1752 was a very short-  
lived treaty. That it succeeded in making peace with only one  
band of the Mi’kmaq. The one band, I think we can say with  
confidence, was Cope’s Shubenacadie band, as found on the  
eastern shore of the province, numbering at maximum 100  
persons, and within a year of its being made, it was a dead letter.  
And the British recognized that the treaty failed to accomplish its  
essential purpose.[Emphasis added]  
[Hearn, Q.C.]  
[Dr. Patterson]  
When you say “dead letter,” do you mean that it was terminated by  
hostilities?  
I mean that it was terminated by hostilities and that both sides seemed to  
acknowledge they no longer had a treaty that guaranteed peace between  
them.  
[746] The Province argues there is no evidence linking the Shubenacadie Band on  
the eastern shore of Nova Scotia with the Island of Newfoundland and no evidence  
linking the 1752 Treaty to Cape Breton, or any part of Newfoundland. The  
Province notes Cape Breton was under French control at the time, not British,  
pursuant to the terms of the Treaty of Utrecht of 1713.  
4.  
The Schomberg - Whitmore Treaty of 1759  
[747] The Province adduced evidence which attempts to establish that, subsequent  
to the fall Louisbourg in 1758 and the fall of Quebec City in 1759, there was a  
pattern throughout the Atlantic region of British military officers receiving the  
submissions of native people and administering oaths of allegiance to them. The  
Province contends there is no evidence that these military treaties (i.e. the  
submissions and oaths of allegiance) included special treaty rights to hunt, fish or  
trade. These treaties are nevertheless of particular significance, says the Province,  
640  
R. v. Marshall #1, note 599 above, pp. 526-527, paras. 15-16.  
Page: 304  
in putting into context the June 25, 1761 Peace and Friendship Treaty, relied upon  
by the Defendants, along with Captain Thompson’s “renewal” on the Lark in 1763.  
[748] The Province’s position is that during the period of the Seven Years War the  
balance of power in North America shifted. The Mi’kmaq came to realize that  
French power was collapsing and that they had little ability to obtain from the  
French the supplies they had become accustomed to receiving; and that there was  
no longer a French presence to provide them with powder and shot, to fix their  
guns, or to provide them with foodstuffs when hunting and fishing was not  
possible. In Dr. Patterson’s words:  
All of these things eventuated in the coming forward of various Mi’kmaq  
and Maliseet groups to military officials scattered about the region, and  
bit by bit, the natives made it clear that they wanted to give up the fight.  
That they wanted to establish a peaceful relationship with the British.  
[749] When the British attacked Louisbourg, Father Maillard, who was still inside  
Louisbourg, escaped before the French commander capitulated. Maillard, along  
with 300 native followers and a large number of French settlers, escaped and hid on  
the north shore of Nova Scotia at Merigomish. A year later, they were found there  
by a British officer, Lieutenant Henry Schomberg, who was sent from Louisbourg,  
under the command of General Edward Whitmore, with the express purpose of  
tracking them down and preventing any further privateering by the Acadians and  
Mi’kmaq along the north shore of Nova Scotia.641 Upon finding Maillard, several  
hundred Mi’kmaq, and a significant number of Acadians and French settlers,  
Schomberg ordered their surrender.  
[750] Schomberg found that both the French and Mi’kmaq, at this time, were quite  
willing to submit to British authority. In a letter to Amherst, Whitmore described  
what had transpired when Schomberg arrived at Merigomish:  
..[Schomberg] went to Pictou and Malligomich; before his arrival the  
French had heard of Quebec being Reduced; Thus Cutt off from Support,  
immediately on his appearance They show’d a Flagg of Truce, the French  
agreed to Surrender Themselves, and the Indians to enter into Terms of  
Peace, and to live henceforward on a footing of Friendship with all his  
Majestys Subjects, and to Show their Sincerity (as I advised in the Letter  
641  
Patterson, Expert Report, pp. 41-45.  
Page: 305  
I had the honour of writing to you o’the 1st ulto) the Chief of the Indians  
of this Island, 6 others, and Thirty French People came in with Lt  
Schomberg... .642  
[751] After Schomberg’s arrival back at Louisbourg in late November,  
accompanied by the seven native chiefs who had surrendered to him, General  
Whitmore proceeded to provide the details of the recent events to his superior,  
General Jeffrey Lord Amherst, commander of British forces in America:  
Thirty four French People have Surrendered & also Seven Indians,  
among Them Jeanot Pequid [Oualouet] chief of the Indians of this Island;  
They have taken the Oaths of Allegiance to his Britannick Majesty and  
promised to be faithful good Subjects in all time to Come.643  
[752] In his testimony, Dr. Patterson clarified the authority of British military  
officers to conclude such agreements:  
It was a typical power of a British commander that he could receive the  
surrender of opposing enemy forces. When the British took Louisbourg  
in 1758, the commander of the operation issued articles of capitulation  
which were accepted by the French commander and the surrender was  
made complete in July of 1758. The French agreed: that they would  
withdraw from Louisbourg; that they would surrender Cape Breton  
Island to the British; that they would withdraw all of their military  
garrisons from throughout the region, especially the one on what we call  
Prince Edward Island, Ile St. Jean; all the French troops would leave and  
go back to France; and the territory would be turned over to the English.  
Those terms were laid out in articles of capitulation. So it was a typical  
aspect of a British military officer’s power that he could receive the  
surrender of enemy forces and he could lay down conditions. Now there  
are, in a sense, intermediate preliminary treaties of a sort. They do not  
have the sanction of the highest officials in the respective Imperial  
power. England and France eventually were to make a treaty in 1763, the  
peace of Paris, which brought the Seven Years War to a conclusion.  
But with that same analogy in mind, it was possible for a British military  
officer to receive the surrender and the submission of native people who  
were allied with the French, and they did. We have clear evidence of it  
in the fall of 1759 and in the months thereafterwards, and that’s what I’m  
642  
Letter from Edward Whitmore to Jeffrey Amherst, January 22, 1760 (WO 34/17), f. 53v [Province’s  
Historical Documents, vol. 34, CD 452].  
643  
Letter from Whitmore to General Jeffrey Amherst, December 1, 1759 (WO 34/17), f. 46v [Province’s  
Historical Documents, vol. 33, CD 448].  
Page: 306  
referring to as military treaties. One should think of them as preliminary  
submissions of native people to the British Crown.  
[753] Dr. Patterson, in conducting his research on the military treaties, located the  
actual articles of capitulation presented by Lieutenant Henry Schomberg to the  
Mi’kmaq and to the French, offered on October 26 and accepted November 20,  
1759:  
•
•
The savages and French to lay down their arms to me.  
To send six Indian chiefs with me to Louisbourg to pay homage to His  
Excellency General Whitmore, Governor of the fortress and town.  
•
•
To surrender up all their effects to me.  
The savages to stretch along the sea coast to endeavour to save the part of such  
ships and vessels as are cast onshore, to save the peoples lives and to protect and  
maintain them with what the woods afford.  
•
•
The savages to run all about the woods to acquaint other savages who do not  
know of the peace, to prevent any accident that may happen.  
That Captain Paul Leblanc, a privateer who has taken many of our vessels and  
who is now at Richibuctou, deliver them up to me.644  
[754] Reciprocally, Schomberg promised the natives that they would be well  
treated and that they would be allowed to practise their religion freely.  
[755] Dr. Wicken, relying on a letter from Lieutenant Schomberg to Father  
Maillard, suggested that the discussions with the various tribes of natives,  
including the Cape Breton Mi’kmaq, were part of a negotiating process that  
implicitly contained reciprocal obligations.  
[756] The Province submits correspondence from Whitmore and Amherst in  
November of 1760 explains more fully what had transpired at Louisbourg in 1759.  
The Province contends it is clear from this correspondence that the various tribes  
were not involved in any process of “negotiation”. Dr. Patterson explained:  
644  
“Articles of Capitulation at Pictou and Merogomish, November 20, 1759,” Boston Evening Post, March  
31, 1760 [Province’s Historical Documents, vol. 94, CD 1117]. Schomberg’s Articles of capitulation were, prior to  
this case, an unknown historical source and were not before the Supreme Court in Marshall #1.  
Page: 307  
Whitmore is writing on this occasion in November of 1760, and it’s  
many months later, but he says ‘I acquainted you’ -- again to General  
Amherst:  
‘I acquainted you in some of my letters in December and January last that  
the Indians were come in and that they had agreed to live with us upon a  
footing of friendship. Accordingly, several of their chiefs came in here  
and articles were agreed on and signed by them and me in form, on  
which occasion as they pleaded were naked and starving, I clothed them  
and gave them some presents of provisions. Afterwards, several others  
came in, to whom I was obliged to do the like. And at this time, the chief  
of the island is here, who besides some clothing makes the demand of  
powder, shot and arms for four men, which if I would remain in peace  
with him, I find I must comply with. They say the French always  
supplied them with these things and they expect that we will do the same.  
I can foresee that this will be constant annual expense.’  
So it is apparent from this that there was more than just a verbal  
agreement that there would be peace. Something was drawn up. There  
was a form to it, and it embraced the idea that there would be friendship  
and peace between the natives and the British and I take from this that is  
typically a submission of the Mi’kmaq, at least as represented by their  
chief, Jeannot, the chief of Cape Breton, that hereafter they intend to deal  
with the English as they had previously dealt with the French and that  
their friendship, allegiance and alliance does require that the British help  
them out by providing them with the things that they traditionally have  
relied on the French for. There’s no talk here about a quid pro quo, but  
there is a specific demand for powder, shot and arms for four men.  
[757] Dr. Patterson further explained that the British were well aware of the shift  
in military circumstances to their favour and that the former native allies of the  
French had lost any bargaining position that they may have had previously:  
... I think, especially after the fall of Quebec and the fall of Montreal, that  
there was a widespread belief among the natives of Nova Scotia that they  
no longer could rely on France for assistance.  
...  
According to Amherst, ‘what the Indians pretended then doing out of  
choice,” he means back at the beginning of the treaty process, “is now  
absolutely through compulsion and their sensibility of our superiority  
which more than anything else will keep them in awe and make them  
refrain from hostilities.’  
Amherst was asked, on a number of occasions, by General Whitmore and  
Governor Lawrence and others, ‘shouldn’t we have more troops in Nova  
Scotia?’ and Amherst’s reply was, ‘I don’t think so. The balance of  
power has shifted now. We’ve got a hand up on the French, and the fall  
Page: 308  
of Quebec and especially the fall of Montreal pretty much clinches the  
whole thing, and we don’t need to have a large military force occupying  
all of the territory that we’ve taken.’ And in this instance, he’s saying,  
‘the natives understand this and they know that even if they were saying  
in 1759, ‘we’re surrendering because we choose to,’ by 1760, they pretty  
much have no choice.’ It’s his belief. This is just his belief, but it’s his  
belief that they are surrendering because of the superiority of British  
arms and that natives recognize that.  
...  
Well, my belief is that when the treaties were negotiated in Halifax, the  
balance of power had shifted significantly that natives fully accepted  
they had little choice but to make a treaty with the British. They were  
trying to make the best of what they saw perhaps as a bad situation.  
They may have still had very strong ties to France. They may still have  
felt very strongly that they wanted to protect their Catholic religion.  
They may have wanted French priests, but they recognized the British  
had won this war and had proven it with their overwhelming numbers.  
[758] Faced with this evidence, the Defendants suggest that Whitmore’s treaty  
with Jeannot included other articles in addition to an Oath, citing as evidence the  
following report from Whitmore to Amherst:  
I acquainted you in some of my Letters in December and January last that  
the Indians were Come in, and that they had agreed to live with us upon a  
footing of Friendship. Accordingly Several of their Chiefs came in here  
and articles were agreed on and Signed by Them and Me in Form, On  
which Occassion as They pleaded they were Naked and Starving I  
Cloathed Them and gave Them Some Presents of Provisions etc.645  
[759] The Province submits there is no evidence whatsoever that military treaties  
included trading rights or were anything other than submissions and oaths of  
allegiance. A letter from Colonel Frye, writing from Fort Cumberland in 1760,  
confirms, says the Province, that the natives were coming to these military  
authorities in order to submit to the British Crown:  
With the French Priest came two Indian Chiefs, viz. Paul Lawrence and  
Augustine Michael; Lawrence tells me he was a Prisoner in Boston, and  
lived with Mr. Henshaw a Blacksmith; he is Chief of a Tribe that before  
the war lived at La Have; Augustine is Chief of a Tribe at Richibucta. I  
have received their Submissions for themselves and Tribes, to His  
Britannic Majesty, and sent them to Halifax for the Terms by Governor  
Lawrence. I have likewise received the Submissions of two other Chiefs,  
645  
Letter from Whitmore to Amherst, November 14, 1760 (WO 34/17), ff. 195-197 [Province’s Historical  
Documents, vol. 94, CD 1119].  
Page: 309  
who I dealt with as those before mentioned, and was in Hopes (which I  
mentioned to Mr. Manach) I had no more Treaties to make with Savages;  
but he told me I was mistaken as there wou’d be a great many more here  
upon the like business, as soon as their Spring Hunting was over; and  
upon my inquiry how many, he gave me a list of fourteen Chiefs,  
including those already mentioned (Copy of which I have inclosed) most  
of which he said would come.646  
[760] The Defendants suggest that Colonel Frye, like other British officials, was  
not fully aware of the number of Mi’kmaq bands or the extent of their territory in  
Cape Breton. The Province accepts that not all British officials were responsible  
for natives or were equally involved in the governance of Nova Scotia. Colonel  
Frye was from Massachusetts, a colonial or provincial officer who commanded  
New England troops garrisoning Fort Cumberland. Since these troops arrived  
after the British had taken Louisbourg they would have known little about Nova  
Scotia: thus the reason for Frye’s initial surprise at the number of bands of  
Mi’kmaq. By January or February 1760, however, Frye had learned of the number  
and distribution of Mi’kmaq bands and even he was no longer ignorant on the  
subject, says the Province.  
[761] The Province submits the British knew that the Mi’kmaq were a  
decentralized people and chose to negotiate treaties with individual bands in  
recognition of this fact. It contends this point is the crux of the decisions in  
Marshall #1 and #2.  
[762] The Defendants rely on the diary of Jonathan Proctor as further evidence that  
the negotiations between the Mi’kmaq and General Whitmore supposedly included  
a right to trade:  
November the 29th. Lt. Shambrey in from Pigto and has come to a  
Cap[itulation] with the french and the Ingens and som of them have Com  
Down with him to Conferme their Peace, that they May have Liberty to  
Trade.647  
[763] The Province notes Dr. Wicken did not mention Jonathan Proctor’s diary in  
his report. In discussing the actions of Lieutenant Schomberg Dr. Wicken stated:  
646  
Letter from Colonel Frye to Governor Lawrence, March 7, 1760, Boston Post-Boy & Advertiser, April 7,  
1760, [Province’s Historical Documents, vol. 94, CD 1120].  
647  
Jonoathan Proctor of Danvers, Diary Kept at Louisbourg 1759 to 1760 (29 November 1759); in Essex  
Institute Historical Collections 70 (1934), pp. 31-57 [Wicken Supporting Documents, vol. 2, Tab 5, p. 32].  
Page: 310  
Not much is known about the discussions between Chief Jeannot and  
Whitmore. On 1 December, Whitmore wrote that both the Acadians and  
the Mi’kmaq had “taken Oaths of Allegiance to His Britannick Majesty  
and promised to be good faithful subjects in all time to come.”648  
[764] The Province emphasizes that Proctor was a Massachusetts Provincial, not a  
British Regular, and was not in a position to have any first-hand information about  
the contents of Whitmore’s treaty. Indeed, nowhere does he say that he saw the  
treaty. If Whitmore had made a treaty promise respecting trade, it is  
inconceivable, argues the Province, that he would not have said so in writing to  
one or more of his many official correspondents who, after all, included the  
Governor of Nova Scotia, Charles Lawrence, and the commander-in-chief of  
British forces in North America, General Amherst. Whitmore’s letters to his  
superiors are available and they say nothing about a trade concession. Even if one  
takes Proctor’s point at face value as an expression of the motivation of the  
Mi’kmaq - that is, that they were confirming their peace in order to have “liberty to  
trade” - the statement in fact tells one nothing about Whitmore’s treaty, contends  
the Province. By taking an oath of allegiance to the British Crown, the Mi’kmaq  
would normally be allowed the privileges of British subjects which would include  
many things, one of which would be a trading privilege. A “liberty to trade” means  
freedom to trade, a liberty of all British subjects. “Liberty to trade” does not imply  
a treaty right to do so beyond that of British subjects generally, in the Province’s  
view.  
[765] The Proctor diary represents, at best, says the Province, what ordinary foot  
soldiers knew of what was going on at Louisbourg and the actual wording should  
be examined. It says that the Indians have come down with Schomberg “To  
conferme their Peace”,649 implying that peace has already been made. The  
Province contends such wording acknowledges that the Indians have in fact given  
up their bargaining power. If they had already made peace, they lacked bargaining  
power to extract concessions from the British in return, argues the Province.  
[766] The Province contends the Schomberg letter of October 26, 1759, to which  
Dr. Wicken made reference, is clear evidence of a British awareness that the  
648  
Wicken, Expert Report, p. 21.  
649  
Note 647 above.  
Page: 311  
Mi’kmaq were not in any position to negotiate or make demands on the Crown and  
were in fact faced with no choice other than subjugation. This letter reads (in part):  
It is necessary that I make known to you that your Capital Quebec has  
fallen to the arms of the King, my master, your armies are in flight, thus  
if you and your people are so reckless to continue [this war] without  
justification, it is certain you will perish by starvation since you have no  
other assistance.  
...  
... by some misfortune, and against my hopes you refuse my Christian  
offerings, as well as my white flag, on returning the signal will be the red  
banner a mark of the indignation of my King, this I would be obliged to  
do. I would not be responsible for the cruelties inflicted on (your)  
people, being resolved to put all to the sword.650  
[767] This sense of complete subjugation to the British colonial authorities in  
Nova Scotia was recognized by Dr. Wicken in his testimony. He dismissed it as  
the product of duplicity on the part of the translator Father Maillard:  
The second thing, I think, to emphasize is that there is, also within  
Lieutenant Governor -- I should say, Jeannot’s translated speech, a sense  
of complete subjection to the British and I would argue, at least, that that  
is more problematic.  
[768] When pressed, Dr. Wicken stated that he was not implying dishonesty on the  
part of Father Maillard:  
Maillard was extraordinarily concerned with the plight of not only the  
Mi’kmaq, but also the Acadians, and as a result of his concern for their  
future survival, he played a critical role in negotiating and mediating  
their relationships with the British after the fall of Louisbourg and then of  
Quebec and Montreal in 1759-60. What I meant by his duplicitous role  
was that Maillard’s concern was to ensure that the Mi’kmaq would  
continue to survive as an entity within the changed political and  
economic conjuncture, brought about by the fall of French forces in  
North America. He wanted them, I believe -- this is my opinion - I  
believe that he wanted to ensure that they would not resort to war again,  
that there would be peace in the future, that a peace agreement was  
signed and this would ensure his continuance among them as a  
missionary, and continue to instruct them as a missionary of God and  
God’s word, and so, what I was referring to when I talked about  
duplicitous, was that there is a -- or rather, there are documents -- there is  
650  
Correspondence from Schomberg to Maillard, October 26, 1759 (Archives Nationales, C11A/105), ff.  
59-59v [Wicken Supporting Documents, vol. 8, Tab 9].  
Page: 312  
one document which suggests, from November 9th 1761, which indicates  
that Maillard, at some point, may have chosen to interpret the words or  
the ideas and to counsel the Mi’kmaq that “yes, you should go -- you  
should make this peace with the British” in case of hesitancy or in case  
where the Mi’kmaq, in some instances, showed their disapproval or just  
concern that perhaps this agreement was not something they could  
actually sign.  
[769] The Defendants, in their argument, rely on Dr. Wicken, who suggested that a  
letter from Lieutenant Schomberg to Father Maillard was circulated to Abbé  
Manach, thereby providing the basis for the execution of the Treaty at Richibucto  
and providing the link to the Halifax Treaty of 1760. The Province submits this is  
not factually accurate. Since there is no historical proof that Father Maillard  
circulated a letter to Abbé Manach before March 10, 1760 and there is no evidence  
of a direct link between the Schomberg episode, the Richibucto signing and the  
Halifax signing on March 10, 1760.  
[770] In summary, the Province’s position is that General Whitmore, like other  
military officers in the Atlantic region, received submissions and administered  
oaths of allegiance; there is no evidence that military treaties included trading  
rights; and there is no evidence that General Whitmore went further than other  
military officers in granting specific treaty rights in exchange for oaths of  
allegiance. After the fall of Louisbourg (1758) and Quebec (1759) many of the  
Mi’kmaq and Maliseet made treaties with the British military before treating with  
civilian authorities in Halifax. One such military treaty was executed by General  
Whitmore in 1759. In the Province’s view, as Dr. Patterson stated, the Whitmore  
Treaty involved an act of capitulation by the Mi’kmaq whereby they swore an oath  
of allegiance to the British Crown.651  
5.  
The Treaty Of June 25, 1761  
(a) Wording and Circumstances of Signing  
[771] Following the defeat of France in North America the British sought to bring  
stability to the region. During the period 1759-1761, in an attempt to achieve this  
stability, Britain signed a number of treaties (commonly referred to as Peace and  
Friendship Treaties) with individual Mi’kmaq bands and other native groups. The  
651  
Patterson, Expert Report, p. 42.  
Page: 313  
Province submits there was no political concept, as there is today, of Mi’kmaq  
“nationhood”, hence the British were obliged to treat with individual bands.  
[772] Dr. Patterson put the treaties of 1760-1761 in context:  
Recognizing the difficulty of getting all the Mi’kmaq together to make a  
single treaty, the governor and council settled on a policy of signing a  
separate treaty with each individual band as its chief made himself  
available. In part, the approach reflected the logistical obstacles  
involved, but more fundamental was the British recognition that the  
Mi'kmaq were a highly decentralized people, made up of autonomous  
local communities each of which had its own sakamow or chief. There  
was no Grand Chief or Grand Council in 1760, and thus no central  
agency that could act for all. The several treaty instruments thus  
accurately mirror the particularistic structure of the Mi'kmaq people. On  
March 10, the governor and council formalized treaties with Michel (or  
Michael) Augustine of the Richibuctou, Paul Laurent of the La Have, and  
Claude René who was sakamow of the Shubenacadie-Musquodoboit.  
These were the first of the several treaties made with the Mi’kmaq in  
Halifax.  
While they were based on the Maliseet-Passamaquoddy Treaty, the  
Mi’kmaq treaties looked quite different in form. The various articles  
contained in the former were repeated, but not as a renewal of earlier  
treaties. Rather, they began de novo, as if this were the first treaty the  
Mi’kmaq had ever made. There was compelling logic to this: many  
Mi’kmaq communities had not subscribed to earlier treaties and in fact  
this was their first. As written, the several Mi'kmaq treaties were  
identical in substance; with small variations in wording, they have been  
accurately described as “separate but similar.” But the process of treating  
with each group separately allowed each chief the opportunity of raising  
issues of concern to his band, and thus the final agreements - written and  
unwritten - varied both in ways that we know and ways that we do not.  
Each must be read in the context of its time and place. For some at least,  
there are minutes of what was said, permitting a reconstruction of events  
and analysis of what was agreed to.  
The most complete description of a treaty ceremony is that of June 25,  
1761, when headmen of the Cape Breton, Shediac, Miramichi, and  
Pokemouche bands made their treaty with Jonathan Belcher, acting  
lieutenant governor. Particularly striking were the words of the Cape  
Breton chief who, speaking for all the others, said: ‘our intentions were  
to yield ourselves up to you without requiring any terms on our part.’ 652  
652  
Patterson, Expert Report, pp. 52-53.  
Page: 314  
[773] Dr. Patterson further explained that the military treaties and those signed at  
Halifax in 1760-1761 constituted treaties with each of the Mi’kmaq bands in Nova  
Scotia:  
The governor and council in Halifax continued to entertain native chiefs  
and sign treaties into the fall of 1761. Then, in a speech to the legislative  
assembly in March, 1762, Lieutenant-Governor Belcher (newly  
appointed as such) reported “that Treaties of Peace have been concluded  
between this His Majesty's Government and every District of the Tribes  
of Indians amongst us.” The historical record supports this view, but  
only if we consider that the treaties included both military submissions  
and oaths of allegiance and the treaties made in Halifax. The record  
contains ten extant treaties or clear official references indicating that  
treaties like those extant were signed in Halifax by Mi’kmaq sakama or  
chiefs. There is no similar record respecting the Cape Sable or Annapolis  
bands (which may have been a single community by this point), and none  
for the Mi’kmaq at Restigouche or Isle St. John. On the other hand, we  
know from the military records that all of these Mi’kmaq indicated a  
w’ish to make peace, and we have varying degrees of detail respecting  
their actual submission. Taking both kinds of treaty into consideration,  
one would have to conclude that Belcher was correct in his assertion that  
treaties had been made with all of the bands or districts in the region.653  
[774] The Defendants claim to be the modern day beneficiary of one such Peace  
and Friendship Treaty; that signed at Halifax on June 25, 1761 by the Nova Scotia  
colonial and military authorities and the Cape Breton Mi’kmaq, led by Chief  
Jeannot Pequidoualouet.  
[775] While no existing copy of the June 25, 1761 Treaty has been found, the  
Province accepts it seems probable that the text is similar to that of the “Halifax  
Treaty” signed by the Shediac Tribe, which reads as follows:  
I Claude Atonash for myself and the Tribe of Jedaick Indians of which I  
am Chief, Do acknowlege the jurisdiction and Dominion of His Majesty  
King George the Third, over the Territories of Nova Scotia or Accadia,  
and we do make Submission to His Majesty in the most perfect, ample,  
and Solemn manner.  
And I do promise for myself and my Tribe that I nor they shall not molest  
any of His Majesty's Subjects or their Dependants in their Settlements  
already made or to be hereafter made, or in carrying on their Commerce,  
653  
Patterson, Expert Report, p. 54.  
Page: 315  
or in any thing whatever within this the Province of His said Majesty, or  
elsewhere.  
And if any Insult, Robbery or Outrage shall happen to be committed by  
any of my Tribe, Satisfaction and Restitution shall be made to the person  
or persons injured.  
That neither I nor my Tribe shall in any manner entice any of His said  
Majesty's Troops Or Soldiers to desert, nor in any manner assist in  
conveying them away, but on the contrary will do our utmost endeavours  
to bring them back to the Company, Regiment, Fort or Garrison to which  
they shall belong.  
That if any Quarrel or Misunderstanding shall happen betwixt myself and  
the English, or between them and any of my Tribe, neither I nor they  
shall take any private Satisfaction or Revenge, but we will apply for  
redress according to the Laws established in his said Majesty's  
Dominions. ~  
That all English prisoners made by myself or my Tribe shall be set at  
Liberty and that we will use our utmost endeavours to prevail on the  
other Tribes to do the same if any prisoners shall happen to be in their  
Hands. ~  
And I do further promise for myself and my Tribe, that we will not either  
directly nor indirectly assist any of the Enemies of His Most Sacred  
Majesty King George the Third, his Heirs or Successors, nor hold any  
manner of Commerce, Traffick, nor intercourse with them; but on the  
contrary will as much as may be in our power discover and make known  
to His Majesty's Governor any ill designs which may be formed or  
contrived against His Majesty's Subjects. And I do further engage, that  
we will not Traffick, Barter or Exchange any Commodities in any  
manner but with such persons, or the Managers of such Truckhouses as  
shall be appointed or established by His Majesty's Governor at Fort  
Cumberland or elsewhere in Nova Scotia or Acadia. ~  
And for the more effectual Security of the due performance of this Treaty  
and every part thereof, I do promise and Engage that a certain Number of  
persons of my Tribe which shall not be less in number than Two persons  
shall on or before the Thirtieth Day of September reside as Hostages at  
Fort Cumberland or at such other place or places in this Province of Nova  
Scotia or Accadia as shall be appointed for that purpose by His Majesty's  
Governor of said Province; which Hostages shall be exchanged for a like  
number of my Tribe when requested.  
And all these foregoing Articles and every one of them made with the  
Honourable Jonathan Belcher Esquire President of His Majesty's Council  
and Commander in Chief of His Majesty's Province of Nova Scotia or  
Page: 316  
Accadia, I do promise for myself and in behalf of my Tribe that we will  
most strictly keep and observe in the most solemn manner. In Witness  
whereof I have hereunto. put my Mark at Halifax in Nova Scotia this  
Twenty fifth Day of June One Thousand Seven Hundred and Sixty one  
and in the First Year of His Majesty's Reign.  
His  
Claude X Atouash  
Mark  
This wording is also similar to that in the treaty signed the previous year by the La  
Have Tribe, which was considered in Marshall #1.  
[776] In June 25, 1761 representatives of the Mirimichi, Shediac, Pokemouche and  
Cape Breton bands assembled at Jonathan Belcher’s farm to sign a treaty with the  
British.654 Also present was Father Maillard, who had agreed to assist the British in  
bringing the Mi’kmaq people to peace terms.  
[777] The 1761 Mi’kmaq treaties, while based on the Maliseet-Passamaquoddy  
Treaty of 1760, were quite different in form. The articles of the Maliseet-  
Passamaquoddy Treaty were repeated in 1761, but not as a renewal. The Mi’kmaq  
treaties are often described as separate but similar, given that they were similar in  
substance with slight variations in wording. The process of treating with each  
group separately allowed each chief the opportunity to raise issues of concern to  
his own band.655  
[778] The main points in Belcher’s speech, as Dr. Patterson points out, summarize  
the perception of the events by both parties. These points are:  
•
•
The Mi’kmaq are expected to be faithful to the British Crown.  
Regarding trade Belcher stated: “your traffic will be weighed  
and settled in the scale of honesty and secured by severe  
punishment against attempts to change the just balance of that  
scale.”  
654  
Patterson, “Indian-White Relations,” p. 56 [Patterson Supporting Documents, vol. 2, Tab 13]. Belcher  
replaced Lawrence, who died in 1760, as the King’s representative in Nova Scotia.  
655  
Patterson, Expert Report, p. 53.  
Page: 317  
•
•
Belcher tells the Mi’kmaq they could still practice their Catholic  
religion: “your religion will not be rooted out of this field.  
Your patriarch will still feed and nourish you in this soil as his  
spiritual children”.  
Belcher stated from thenceforth British and Nova Scotia law  
would apply to the Mi’kmaq as they were now British subjects:  
“The laws will be like a great hedge about your rights and  
properties. If any break this hedge to hurt and injure you, the  
heavy weight of the laws will fall upon them and punish their  
disobedience.”  
•
Referring to past hostilities, Belcher said: “You see the  
Christian spirit of the King’s government, not only in burying  
the memory of broken faith by some of your people, but in  
stretching out the hand of love and assistance to you.”656  
[779] After Belcher finished his speech and the treaties were signed and the  
hatchets were buried, Chief Jeannot of the Cape Breton Mi’kmaq, who had been  
chosen by the natives to be their spokesperson, gave his speech. The words spoken  
are important in ascertaining Chief Jeannot’s understanding of the treaty and the  
terms sought on behalf of his Band. They are therefore reproduced in full:  
My Lord and Father!  
We come here to assure you, in the name of all those of whom we are Chiefs, that  
the propositions which you have been pleased to cause to be sent to us in writing  
have been very acceptable to me and my Brethren, And that our Intentions were  
to Yeild ourselves up to you without requiring any Terms on our part.  
Our not doubting your Sincerity has chiefly been owing to your Charitable, mercifull &  
bountifull behaviour to the poor French wandering up and down the Sea Coasts and  
Woods without any of the necessaries of Life; Certain it is that they, as well as we, must  
have wretchedly perished unless relieved by your humanity; for we were reduced to  
extremities more intollerable than Death itself.  
You are now Master here; such has been the will of God; He has given you the  
Dominion of those vast Countries, always crowning your Enterprises with  
Success. You were, before these Acquisitions, a very great People; but we now  
acknowlege you to be much more powerfull; tho’ less Great, in the extensiveness  
of your possessions, than in the uprightness of your Heart, whereof you have  
given us undoubted and repeated proofs, Since the Reduction of Canada. You  
656  
Treaty of Peace and Friendship, June 25, 1761 (CO 217/18), ff. 281-283v [Province’s Historical  
Documents, vol. 34, CD 482].  
Page: 318  
may be confident that the moderation and Lenity wherewith we have been  
treated, has deeply imprinted in our Hearts a becoming Sense of Gratitude.  
Those good and noble Sentiments of yours, towards us in our distressed and  
piteous Circumstances have [emboldened] us to come out of the Woods our  
natural Shelter, from whence we had previously resolved not to stir, till the  
Establishment of Peace between both Crowns, whatever Hardships we might  
have suffered.”  
Your Generous manner, Your good Heart; your propensity to Clemency, make us  
hope that no mention will ever be made of any Hostilities that have been  
committed by us against you and Yours. The Succours so seasonably given us in  
our greatest wants and necessities have been so often the Subject of our Thoughts  
that they have inspired us with the highest Sentiments of gratitude and Affection.  
We felt ourselves in consequence, forcibly drawn to Halifax to acquaint the  
Representative of the King, not only with the resolutions we had taken in his  
favour, arising from his kindness to us, but also to let him understand, that the  
many proofs he has given us of the goodness of his Heart at a time and in a  
Conjuncture in which we could not hope for such favourable Treatment have so  
intirely captivated Us that we have no longer a will of our own. His will is ours.  
You now, Sire, see us actually in your presence, dispose of us as you please. We  
account it our greatest misfortune that we should so long have neglected to  
embrace the opportunity of knowing you so well as we now do. You may depend  
we do not flatter. We speak to you at this time according to the dictates of our  
Hearts. Since you are so good as to forget what is past, we are happy in its being  
buried in Oblivion. Receive Us into your Arms; into them we cast ourselves as  
into a safe and Secure Asylum from whence we are resolved never to withdraw or  
depart.  
I swear, for myself, Brethren & People, by the Almighty God who sees all things,  
Hears all things, and who has in his power all things, visible and invisible, that I  
sincerely comply with all and each of the Articles that you have proposed to be  
kept inviolably on both Sides.  
As long as the Sun and Moon shall endu[re] as long as the Earth on which I dwell shall  
exist in the same State you this day see it, so long will I be your friend and Ally,  
Submitting myself to the Laws of your Government; faithful and obedient to the Crown,  
Whether things in these Countries be restored to their former State or not; I again Swear  
by the Supreme Commander of Heaven and Earth, by the Sovereign disposer of all things  
that have life on Earth or in Heaven, that I will for ever continue in the Same Disposition  
of mind I at present am in.  
There is one thing that binds me more Strongly and firmly to you than I can  
possibly express, and that is your indulging me in the free Exercise of the  
Religion in which I have been instructed from my [Cradle].  
Page: 319  
You [confess] and believe, as well as I, in Jesus Christ the eternal Word of  
Almighty God. I own I long doubted whether you was of this Faith. I declare  
moreover that I did not believe you was baptised; I therefore am overwhelmed  
with great Sorrow and repentance that I have too long given a deaf ear to my  
Spiritual director touching that Matter, for often has he told me to forbear  
imbruing my hands in the Blood of a people who were Christians as well as  
myself. But at present I know you much better than I did formerly; I therefore  
renounce all the ill Opinions that have been insinuated to me and my Brethren in  
times past against the Subjects of Great Britain.”  
To conclude, in the presence of him to whom the most hidden thoughts of Men’s  
Hearts are laid open; in your presence Governor, (for I conceive that I see in your  
person him who you represent, and from whom you derive your Authority as the  
Moon borrows her light from the Rays of the Sun;) And before all this noble  
Train who are round about you I bury this Hatchet as a Dead Body that is only fit  
to become rotten, looking upon it as unlawful and impossible for me to make use  
hereafter of this Instrument of my Hostilities against you.  
Let Him be happy and blessed for ever, the August person for the Sake of whom I  
make to Day this funeral! Great God, let him be happy and blessed during his  
whole reign over his Subjects. May he never have occasion to scruple calling us  
his Children, and may we always deserve at his hands the Treatment of a Father.  
And Sir, we pray you must humbly, as you are intrusted by George the third our  
King that you will be pleased to inform His Majesty, as soon as possible, of what  
you have this Day seen and heard from our People, whose Sentiments have now  
been declared unto the King by my mouth.657  
[780] The Province notes that nowhere in his speech does Chief Jeannot mention  
trade or request a special trade deal with the British. All he asks of the British was  
that they allow the Mi’kmaq to continue their Christian religion.  
(b) The Parties to the Treaty  
[781] The Province argues there is no evidence that any of the Defendants are  
members of a Cape Breton band, or for that matter have ancestral links to an  
existing Cape Breton band or that the Miawpukek Band of Conne River is a  
community with which the Treaty of June 25, 1761 was made.  
657  
Treaty of Peace and Friendship, June 25, 1761 (CO 217/18), ff. 281-283v [Province’s Historical  
Documents, vol. 34, CD 482].  
Page: 320  
[782] The Province notes that in their Submission the Defendants concede that the  
Miawpukek Band of Conne River was not a party to any of the Peace and  
Friendship Treaties entered into by the British during the period 1759-1761:  
The situation of the Mi’kmaq of Prince Edward Island and Quebec with  
respect to the Treaties of 1759-61 is strikingly similar to that of the  
Newfoundland Mi’kmaq. Mi’kmaq Bands in these locales were not  
specifically parties to Treaties in the period 1759-1761. They were not in  
law under the jurisdiction of the Governor of Nova Scotia during the  
1760-1761 series of Peace and Friendship Treaties (and it might be noted  
that Cape Breton was not a part of the Colony and Province of Nova  
Scotia until annexed in 1763). It is clear the major difference between  
the Mi’kmaq of Quebec and Prince Edward Island and those of  
Newfoundland with respect to the Treaty-making process of the1760s is  
that there was in Newfoundland a specific Treaty renewal. The honour  
and fiduciary duty of the Crown would be compromised if jurisdictional  
issues and divisions within British colonial/constitutional structure served  
to render invalid rights stemming from the Peace and Friendship Treaties.  
This is even more amplified when one considers that from the Mi’kmaq  
perspective they were treating with an indivisible British Crown. The  
Mi’kmaq had no appreciation of British law, government and  
constitutional structure – which were in any case at this point in  
Canadian history scarcely operational in the colonies.  
[783] The Province submits the Defendants are mistaken in their belief that this  
“renewal” by Captain Thompson while six or seven leagues offshore from Codroy  
on the Lark in 1763, refers to the June 25, 1761 Treaty since recent research has  
shown this not to be the case. Rather, says the Province the “renewal”“ probably  
referred to the oath of allegiance taken by General Whitmore in 1759. The Lark  
incident is discussed in greater detail below, at Part V.A.5(e).  
(c) Is the Treaty a Valid and Subsisting Treaty?  
[784] The Province accepts that the Treaty of June 25, 1761 provided for lasting  
peace between the signatories and is a valid and subsisting treaty.  
(d) Geographic Scope of the Treaty Right  
[785] On the geographical scope of the June 25, 1761 Treaty, and whether it  
specifically encompasses the area in Newfoundland claimed by the Defendants,  
Page: 321  
the Defendants suggest that the test for determining its geographical scope is to  
determine the area “traditionally used” by the Mi’kmaq. The Defendants further  
suggest that “the territorial scope of the 1759-1761 Peace Treaties must be  
interpreted in consideration of the Mi’kmaq communities’ way of life and the  
perspective of the Mi’kmaq.  
[786] The Province submits the Defendants have misapprehended the legal test for  
determining the territorial scope of a treaty right. The Province notes the Supreme  
Court of Canada was clear in its articulation of the test in R. v. Sioui.658 In that case  
the Court rejected the Quebec Court of Appeal’s conclusion that the treaty applied  
simply to an area “frequented” by the the Hurons. The Court concluded that this  
would imply an extremely vast area and suggested that the better test was to look  
at the common intentions of both parties in respect to the territory claimed. Lamer  
J. in Sioui stated that:  
In my view, the treaty essentially has to be interpreted by determining the  
intention of the parties on the territorial question at the time it was  
concluded. It is not sufficient to note that the treaty is silent...659 .  
[787] The Court went on to suggest that an interpretation of the geographical scope  
“must be realistic and reflect the intention of both parties, not just that of the  
Hurons.”660 This approach is in accord with the comment made by Binnie J. that  
the “bottom line” of treaty interpretation is to “choose from among the various  
possible interpretations of the common intention [at the time the treaty was made]  
the one which best reconciles the Mi’kmaq interests and those of the British  
Crown”.661  
[788] The Province submits areas of “traditional use” or those “frequented” by the  
Mi’kmaq are not determinative of the territorial scope of a treaty right. Rather they  
are simply evidence or indicia of the geographical scope of such a right. It is easily  
possible to conceive of treaty processes that would specifically exclude areas of  
traditional use or included additional areas, says the Province.  
658  
(1990), 70 D.L.R. (4th) 427 (S.C.C.)  
659  
The same, p. 460.  
660  
At 461.  
661  
R. v. Marshall #1, note 599 above, p. 526, para. 14.  
Page: 322  
[789] The Province argues that in order to arrive at an accurate answer as to the  
geographical scope of the 1761 treaty it is therefore necessary to examine the  
common intention of the parties as evidenced by the following factors: the  
Supreme Court’s characterization of the Peace and Friendship Treaties of 1759-  
1761; the express language of the treaty; the authority of those signing the treaty;  
the historical evidence relating to the traditional territory of the Cape Breton  
Mi’kmaq signatories; and the understanding of the parties evidenced by their  
subsequent conduct. It is to those considerations I now turn.  
(i)  
The Supreme Court’s Characterization  
[790] The Defendants take the position that the Supreme Court of Canada decision  
in Marshall #1 determined that the June 25, 1761 Treaty conferred on the  
Mi’kmaq, rights to hunt, gather, and trade in order to earn a moderate livelihood.  
The Province notes that, in fact, however, the specific treaty under consideration in  
Marshall #1 was not the June 25, 1761 Treaty but a treaty signed on March 10,  
1760 between the Nova Scotia Governor and Council and the Richibuctou, La  
Have and Shubenacadie Mi’kmaq. While in Marshall #1 the Supreme Court  
concluded that the surrounding circumstances leading to the inclusion of the so  
called truckhouse clause gave Marshall, as a beneficiary of the treaty, the treaty  
right to earn a “moderate livelihood”, the Province argues the evidence relating to  
the June 25, 1761 Treaty does not lead to the same result.  
[791] In their Submission the Defendants suggest that there was a comprehensive  
Mi’kmaq treaty conferring rights on all Mi’kmaq. The Province submits the  
Supreme Court of Canada held that there was no such comprehensive treaty.  
Rather, during the period 1759-1761, there was a series of local treaties with  
individual Mi’kmaq communities, which provided local rights to these respective  
communities.662  
[792] The Province submits that in its consideration of the so-called “Marshall  
Treaty” the Supreme Court of Canada concluded these treaties are local, limited in  
662  
Marshall #1, note 599 above, p. 521, para. 5. See also R. v. Marshall (1999), 179 D.L.R. (4th) 193  
S.C.C. [Marshall #2], pp. 203-204, para. 17.  
Page: 323  
scope, and confer limited communal rights upon the local communities. In  
Marshall #2 the Court noted:  
In the event of another prosecution under the regulations, the Crown will  
(as it did in this case) have the onus of establishing the factual elements  
of the offence. The onus will then switch to the accused to demonstrate  
that he or she is a member of an aboriginal community in Canada with  
which one of the local treaties described in the September 17, 1999  
majority judgment was made, and was engaged in the exercise of the  
community’s collective right to hunt or fish in that community’s  
traditional hunting and fishing grounds. The Court’s majority judgment  
noted in para. 5 that no treaty was made by the British with the Mi’kmaq  
population as a whole:  
... the British signed a series of agreements with individual Mi’kmaq  
communities in 1760 and 1761 intending to have them consolidated into  
a comprehensive Mi’kmaq treaty that was never in fact brought into  
existence. The trial judge, Embree Prov. Ct. J., found that by the end of  
1761 all of the Mi’kmaq villages in Nova Scotia had entered into separate  
but similar treaties. [Emphasis added.]  
The British Governor in Halifax thus proceeded on the basis that local  
chiefs had no authority to promise peace and friendship on behalf of  
other local chiefs in other communities, or to secure treaty benefits on  
their behalf. The treaties were local and the reciprocal benefits were  
local. In the absence of a fresh agreement with the Crown, the exercise  
of the treaty rights will be limited to the area traditionally used by the  
local community with which the ‘separate but similar’ treaty was made.  
Moreover, the treaty rights do not belong to the individual, but are  
exercised by authority of the local community to which the accused  
belongs, and their exercise is limited to the purpose of obtaining from the  
identified resources the wherewithal to trade for ‘necessaries’.663  
(ii) The Express Treaty Language  
[793] The Province submits that, as Binnie J. observed in Marshall #1, the starting  
point for an analysis of any alleged treaty right must be an examination of the  
particular words used in the written document itself.664 The text of the 1761 Treaty  
refers to Jonathan Belcher as president of His Majesty’s Council and Commander-  
in-Chief in and over His Majesty’s Province of Nova Scotia or Acadia and  
663  
Marshall #2, pp. 203-204, para. 17.  
664  
Marshall #1, p. 521, para. 5.  
Page: 324  
describes the local tribe as being the Shediac (in the Province of Nova Scotia or  
Acadia). The terms of the treaty describe it as:  
[A] Treaty of Peace and Friendship concluded by the Honorable Jonathan  
Belcher Esq.r President of His Majesty’s Council and Commander in  
Chief in and over His Majestys Province of Nova Scotia or Acadia &c  
with Claude Atonash Chief of the Jediack Tribe of Indians at Halifax in  
the Province of Nova Scotia or Acadia.665  
[794] The Province contends that, in the context of the local Nova Scotia treaties  
with the local Mi’kmaq communities, it is clear from the treaty text that the  
geographic scope of the June 25, 1761 Treaty does not extend to Newfoundland  
and Labrador, since the treaty expressly refers to “in and over His Majestys  
Province of Nova Scotia or Acadia.”666 None of the local Nova Scotia treaties  
contain any reference whatsoever to the Island of Newfoundland.  
[795] The fact the Mi’kmaq promised not to molest British subjects in Nova Scotia  
“or elsewhere”, is interpreted by the Defendants as meaning that the territorial  
region of the local treaties was not intended to be limited to Nova Scotia. The  
Province argues this term in the treaty constituted an oath of allegiance and was for  
the benefit of the Crown, not the Mi’kmaq. The Province submits the term  
“elsewhere” cannot be read in such a manner as to transform local rights under  
local treaties into personal, portable rights that are exercisable anywhere in the  
British realm. To undertake such an interpretation would be to go beyond  
construing the language generously and would “alter the terms of the treaty by  
exceeding what ‘is possible on the language’ or realistic”667, says the Province.  
[796] Dr. Patterson also summarized the main points of the Halifax treaties of  
1760-61, including the June 25, 1761 treaty, as follows:  
•
Indians acknowledge the jurisdiction and dominion of King George over  
the territories of Nova Scotia, and make submission.  
665  
Treaty of Peace and Friendship, June 25, 1761 (CO 217/18), f. 277 [Province’s Historical Documents,  
vol. 34, CD 482].  
666  
The same.  
667  
Marshall #1, note 599 above, p. 554, para. 78 per McLachlin C.J.C; See also Marshall #2, note 659  
above, and R. v. Sioui (1990), 70 D.L.R. (4th) 427 (S.C.C.).  
Page: 325  
•
Indians promise not to molest the King’s subjects in settlements already  
made or that may hereafter be made or in carrying on their commerce “or  
in any thing whatever within this the Province of His said Majesty or  
elsewhere.”  
•
•
•
Indians will make restitution for robbery or outrage.  
Indians will not entice soldiers to desert.  
Indians will not take private revenge but will apply for redress of  
misunderstandings between Indians and English according toKking’s  
laws.  
•
•
•
Indians will free their English prisoners and will urge other Indians to do  
likewise.  
Indians will not assist the enemies of the King, nor hold intercourse or  
trade with them, but will report ill designs against the king’s subjects.  
Indians agree to confine their trade to government truckhouses, and to  
leave hostages at places appointed by the government as security for their  
adherence to the treaty.668  
[797] In Dr. Patterson’s opinion there is nothing in the express language of the  
treaty to encompass the Island of Newfoundland.  
(iii) Authority of the Signatories  
[798] The Province submits it can reasonably be concluded that Chief Jeannot had  
authority to act on behalf of the Cape Breton Mi’kmaq Band as there is ample  
evidence of his position as leader of this band.669 The Province notes Jeannot was  
chosen by the natives to be their spokesperson at the 1761 Treaty ceremony and he  
was the only native to address the ceremonial gathering.  
[799] By the time these various treaties were signed on Jonathan Belcher’s farm  
near Halifax, Cape Breton was under British military control and, for civilian  
668  
Patterson, Expert Report, pp. 55-56.  
669  
Letter from Whitmore to General Jeffrey Amherst, December 1, 1759 (WO 34/17), ff. 46-47  
[Province’s Historical Documents, vol. 33, CD 448].  
Page: 326  
matters, under the jurisdiction of the Governor in Halifax.670 According to Dr.  
Patterson:  
... Historically, Cape Breton was British as soon as the French  
surrendered it, because they wrote it right into the terms of capitulation.  
You didn’t take me back to the cross-examination I had on that subject in  
Marshall, but we talked about that, but in this case, I can say  
categorically, I have seen the articles of capitulation that were made at  
Louisbourg in the summer of 1758 and the French commandant  
surrendered Cape Breton Island to the British, surrendered Louisbourg.  
He surrendered Isle St. Jean. He promised to remove all French forces  
from the garrisons at Louisbourg and elsewhere in the region and turn  
them completely over to the British. In my estimation, Cape Breton  
became British in 1758.  
[800] Governor Lawrence of Nova Scotia was acting under Royal Instructions  
which specifically authorized him to treat with Indians within his jurisdiction. The  
Province submits the historical evidence is clear and uncontradicted and shows  
Governor Lawrence’s authority did not extend to Newfoundland, a separate  
colony.671  
[801] The Province notes that subsequent to the Treaty of Utrecht in 1713 each  
successive Governor of Nova Scotia received Standing Orders to treat with  
aboriginals within his jurisdiction.672 The territory explicitly referred to in each of  
670  
After the fall of Louisbourg, Edward Whitmore, the British commander there, was designated  
Governor; Cape Breton and Isle St. Jean fell under his jurisdiction, although he was subordinate to and answerable to  
the Governor of Nova Scotia, See, Patterson Report, p. 70.  
671  
Royal Instructions to Governor Charles Lawrence, March 2, 1756 (MG/40, B13) [Province’s Historical  
Documents, vol. 95, CD 1160].  
672  
The Governor’s instructions were as follows:  
And Whereas His Majesty has judged it highly necessary for His Service that You should cultivate  
and maintain a strict Friendship and good Correspondence with the Indians Inhabiting within the  
said Province of Nova Scotia, that they may be induced by Degrees not only to be good  
Neighbours to His Majesty’s Subjects, but likewise themselves to become good Subjects to His  
Majesty. You are therefore directed upon Your Arrival in Nova Scotia to send for the several  
Heads of the said Indian Nations or Clans, and enter into a Treaty with them, promising them  
Friendship and Protection on His Majesty’s part, and if you shall judge proper, bestowing upon  
them in His Majesty’s Name such presents as you shall judge proper.  
See Instructions to Peregrine Thomas Hopson, Governor of Nova Scotia or Acadia, April 23, 1752 (CO 218/4), ff.  
177, 255-256 [Province’s Historical Documents, vol. 93, CD 1091]; and Instructions to Richard Philips, Governor of  
Placentia, Nova Scotia or Accadie, June 19, 1719 (CO 218/1), ff. 428, 439-440 [Province’s Historical Documents,  
Page: 327  
the subsequent treaties signed by the Mi’kmaq was Nova Scotia.673 There is no  
evidence that any Newfoundland governor received similar orders at any time, says  
the Province.  
(iv) Traditional Territory  
[802] The concept that treaty rights are limited by territorial scope has been  
articulated by the Supreme Court of Canada in earlier decisions. In R. v. Sioui the  
Court stated:  
“for a freedom to have real value and meaning, it must be possible to  
exercise it somewhere. That does not mean, despite the importance of the  
rights concerned, that the Indians can exercise it anywhere.674  
The specific nature of the rights was confirmed by the Court in R.v. Sundown:  
Aboriginal and treaty rights ... are the right of aboriginal people in  
common with other aboriginal people to participate in certain practices  
traditionally engaged in by particular aboriginal nations in particular  
territories.675  
vol. 93, CD 1092]. See also Patterson, Expert Report, p. 32.  
673  
See Treaty of Peace and Friendship, June 4, 1726 (CO 217/38), ff. 100-102v [Province’s Historical  
Documents, vol. 28, CD 333]; See also Treaty of Peace and Friendship, June 25, 1761 (CO 217/18), ff. 276-284  
[Province’s Historical Documents, vol. 34, CD 482]; Treaty or Articles of Peace and Friendship between Peregrine  
Thomas Hopson and Jean Baptiste Cope, November 22, 1752 (CO 217/40), ff. 379-388 [Province’s Historical  
Documents, vol. 93, CD 1096]; Treaty of Peace and Friendship concluded with the Delegates of the St. Johns and  
Passamaquody Tribes of Indians, February 23, 1760 (CO 217/18), ff. [3-31] [Province’s Historical Documents, vol.  
93, CD 1097]; Treaty of Peace and Friendship concluded by Charles Lawrence, the Governor of Nova Scotia and  
Paul Laurent, Chief of La Have tribe of Indians, March 10, 1760 (PANS Andrew Brown Collection) [Province’s  
Historical Documents, vol. 93, CD 1098]; and Council Minutes, March 10, 1760 (RG/1, vol. 188), ff. 137-140  
[Province’s Historical Documents, vol. 93, CD 1099].  
674  
R. v. Sioui (1990). 70 D.L.R. (4th) 427 (S.C.C.), p. 460.  
675  
R. v. Sundown, (1999), 170 D.L.R. (4th) 385 (S.C.C.), p. 400, para. 35.  
Page: 328  
[803] The Province submits treaty rights are similar to aboriginal rights generally,  
in that they do not create a free-ranging right or rights at large.676 Treaty rights,  
like aboriginal rights, are not transportable and the beneficiaries are not able to go  
elsewhere and exercise a collective treaty right. The Province argues that, while in  
theory the appropriate British authority could have given Mi’kmaq a treaty right to  
fish in the Thames estuary, in practice the rights were usually limited to the  
traditional territory of the particular band with whom the treaty was made.  
Traditional territory, then, may be indicative of the parties’ intention, but it is not  
determinative, submits the Province.  
[804] The Defendants agree that the June 25, 1761 Treaty applies to a restricted  
territory that was part of the local communities’ traditional territory at the time the  
treaty was made and accept that the test required for determining territory pursuant  
to a treaty right is similar to that required in establishing aboriginal rights.  
[805] The question, therefore, becomes: was the area of Newfoundland over which  
the Defendants claim treaty rights part of the traditional territory of the Cape  
Breton Mi’kmaq at the time the treaty was signed? The Province submits that,  
based on the available anthropological, archaeological and historical evidence  
discussed in some detail in Part I of this Memorandum, the answer is clearly, no.  
[806] Dr. Wicken testified that, in his opinion, at the time of the June 25, 1761  
Treaty, the traditional territory of the Cape Breton Mi’kmaq included not only the  
area of Cape Breton itself but also the coastline of southern Newfoundland.  
However, the Province notes that, when confronted with the historical record, Dr.  
Wicken was forced to concede that “the secondary material does indicate that there  
676  
R. v. Jacobs, [1999] 3 C.N.L.R. 239 (B.C.S.C.), para. 126. The Court in Jacobs rejected the argument  
that the Mi’kmaq and Mohawk residents of a Sto:lo community could be included in a Sto:lo claim. The Court  
stated at paragraph 126: “Nor do I view a test based solely on residency, or domicile, to be sufficient. The sui  
generis nature of Aboriginal rights connotes an historical connection between the community rights and the territory  
where the rights were exercised. In my view, a Sto:lo person is not entitled to go elsewhere and exercise a collective  
Sto:lo right which is necessarily and uniquely connected to the occupation, or use of traditional territory. Equally, it  
appears to me, first, that only Aboriginal peoples are entitled to exercise Aboriginal rights; and, second, only Sto:lo  
Aboriginal persons are entitled to exercise Sto:lo Aboriginal rights. Although I have little difficulty concluding that  
the Sto:lo community accepted Jacobs, Connal and, for a limited period, Flamand as members, I do not accept that  
this is sufficient to establish individual entitlements to the benefit of Sto:lo constitutionally entrenched rights.  
Although Mr. Gregory is an Aboriginal person, there is no evidence that he has any present or historical connection  
to the Sto:lo community. In arriving at these conclusions, I have considered and rejected the reasoning in R. v.  
Wolfe, [1997] 1 C.N.L.R. 171 (B.C. Prov. Ct.).”  
Page: 329  
was infrequent usage of areas in southern Newfoundland during this time period up  
until 1761.”677  
[807] Further, Dr. Wicken admitted that his opinion was based in part on French  
sources from the period 1705-1708. The Province submits that, when placed in  
context, however, it is apparent the presence of the Mi’kmaq at Plaisance was  
temporary during that period as the French had, at this time, enticed the Mi’kmaq  
to stay in their employ as mercenaries.678 The evidence is clear, says the Province,  
that the Mi’kmaq were recent arrivals at Plaisance and the area was not part of their  
traditional territory.  
[808] The Province notes the Mi’kmaq abandoned Plaisance around 1708 and for  
the next 50 years references to a Mi’kmaq presence in Newfoundland are few and  
far between. Eight references relied on by the Defendants include hearsay  
evidence of Captain Taverner about Mi’kmaqs furring in the vicinity of Codroy;679  
two episodes at sea, including the seizure of a ship off Port aux Basques in 1727;680  
677  
Bartels and Janzen do not place the Mi’kmaq in Newfoundland until the 1760's, Ingeborg Marshall says  
they were here in the early 1700's, but subsequently abandoned the area, and Martijn suggests that their presence in  
the decades preceding the 1760's has yet to be established.  
678  
Letter from Subercase to the Minister, October 22, 1705 (France: Archives des Colonies, Serie  
C11C/4), ff. 195-227v [Province’s Historical Documents, vol. 16, CD 200]; Letter from Costebelle to the Minister,  
November 8, 1706 (France: Archives des Colonies, Serie C11C/5), ff. 30-70v [Province’s Historical Documents,  
vol. 18, CD 210]; Letter from Costebelle to the Minister, July 10, 1707 (France: Archives des Colonies, Serie  
C11C/5), ff. 90-97 [Province’s Historical Documents, vol. 19, CD 216]; Letter from de Sourdeval to the Minister,  
October 18, 1707 (France: Archives des Colonies, Serie C11C/5), ff. 215v-217 [Province’s Historical Documents,  
vol. 19, CD 217]; Letter from de Sourdeval to the Minister, December 1, 1707 (France: Archives des Colonies,  
Serie C11C/5), ff. 342-344 [Province’s Historical Documents, vol. 20, CD 219]. For a more detailed analysis of the  
French documentation and of the Mi’kmaq as military allies of the French, see von Gernet, Expert Report, pp. 143-  
158; and Thorpe, Expert Report, pp. 47-64.  
679  
William Taverner, Some Remarks on the Present State of the South Part of Newfoundland, [February  
15, 1715] (PANL, CO 194/6), ff. 44v-51 [Province’s Historical Documents, vol. 24, CD 280]; Board of Trade,  
Extract of representation to His Majesty upon the state of Newfoundland, February 29, 1716 (CO 194/26), ff. 209-  
209v [Province’s Historical Documents, vol. 25, CD 287]; William Taverner, Second Report, May 20, 1718 (CO  
194/6), ff. 226-241v [Province’s Historical Documents, vol. 26, CD 299]; and Memorial from William Taverner to  
the Board of Trade, February 2, 1734 (CO 194/23), ff. 180-183v [Province’s Historical Documents, vol. 30, CD  
359].  
680  
Letter from de Brouillan to the Minister, September 13, 1727 (France: Archives des Colonies, Serie  
C11B/9), ff. 50-51 [Province’s Historical Documents, vol. 29, CD 337] and von Gernet, Expert Report, pp. 182-  
183.  
Page: 330  
and the capture of fifteen Indians near St. Pierre around 1730.681 These are  
separate, discrete incidents, unrelated to the traditional territories or the traditional  
lifestyle of the Mi’kmaq, argues the Province.  
[809] Furthermore, says the Province, the area in which these events are recorded  
is geographically removed from the area over which treaty rights are claimed.  
[810] The Province contends that, contrary to the position of the Defendants, it is  
not correct to speak of an economy practised by Cape Breton Mi’kmaq in  
Newfoundland. As Dr. Olaf Janzen explained, the presence of Cape Breton  
Mi’kmaq was occasional or sporadic and not a traditional activity in traditional  
territory:  
[Dr. Janzen]  
Sporadic means simply that every once in awhile there is a  
reference to suggest that the Mi’kmaq did show up in  
Newfoundland. And at the moment, all we have -- at least all I  
can find are these references that suggest that they were there in  
1727 and 1730 and 1748, perhaps, somewhere in Newfoundland.  
...  
[Dr. Janzen]  
So hence, my conclusion that the British records don’t show anything  
more than a sporadic presence, supplemented with a few French  
references, and that’s the interpretation.  
[811] As explained by Dr. Janzen in his testimony, the most that this evidence  
supports is a sporadic presence in a few undefined areas by certain Mi’kmaq from  
Cape Breton. Dr. Janzen stated:  
I wouldn’t use the word “seasonal exploitation,” but perhaps sporadic  
would be more consistent with my view of the evidence. And I don’t  
think I would include the south coast as part of that pattern. My view is  
that -- my view today would be that the Mi’kmaq of Cape Breton Island  
essentially were inhabitants of Cape Breton Island and Peninsula Nova  
Scotia. That after 1713 we begin to see some sporadic encounters with  
Newfoundland. The most clearly defined ones are --involve acts of  
aggression or hostility. Witness the incident in Port aux Basques in  
1727. Witness the attack on the Mi’kmaq by the Englishmen at Pass  
Island or Ile de Grole in 1730. And when we do have, in relative peace time,  
when we do have British warships cruising or patrolling, for whatever reason,  
whether it’s a cartographic survey or just an investigatory visit, there is no  
reference made to Mi’kmaq encounters. So I think that for the most part,  
681  
Letter from de Bourville to the Minister, December 14, 1730 (France: Archives des Colonies, Serie  
C11B/11), ff. 42-43 [Province’s Historical Documents, vol. 29, CD 351].  
Page: 331  
Mi’kmaq did not have a seasonal presence or a regular presence in  
Newfoundland until the early 1760s when everything seems to change, and by  
everything, I mean, Cape Breton Island was captured by the British during the  
Seven Years War and the political and diplomatic and religious and social  
environment changed for the Mi’kmaq and St. Pierre and Miquelon were  
restored to the French, which created a situation in which, I think, the Mi’kmaq  
now looked to St. Pierre as a possible point which could satisfy their particular  
needs, religious needs, the needs for certain European products and goods... .  
[812] The Province argues the commercial fur trade in which the Mi’kmaq were  
active participants developed as a result of contact with Europeans and was not a  
practice distinctive to the Mi’kmaq at the time of contact. Dr. von Gernet  
discussed the transformation of the Mi’kmaq economy from one of subsistence to a  
market oriented economy in the post-contact period:  
The Mi’kmaq became involved in the fur trade from the beginning of  
their contact with Europeans in the early sixteenth century. In the  
process, the Mi’kmaq were gradually transformed from self-sufficient  
subsistence foragers into market hunters. The trade precipitated a change  
in the Aboriginal economic structure and timing of the seasonal round.  
There was a shift in emphasis from aquatic to terrestrial resources ... .  
...  
Historically, their presence in Newfoundland was inextricably linked to  
the presence of the French and to the fur trade. Both were a consequence  
of European contact, and neither can be rooted in pre-contact times.682  
[813] The Province contends that, as McLachlin C.J.C. noted in the aboriginal  
rights context of Mitchell, the relevance of geographic consideration is critical  
where, as in this case, hunting and fishing rights are asserted and “the activity is  
intrinsically linked to specific tracts of land.”683 The Province submits the  
Defendants must show the specific practice was integral to the geographic area.  
[814] The Province contends that when the Supreme Court of Canada in Marshall  
#2 spoke of the community’s collective traditional right to hunt and fish in the  
community’s hunting and fishing grounds the Court was speaking of more than  
mere occasional presence. The standard of proof on these matters should be one of  
682  
von Gernet, Expert Report, pp. 230, 232.  
683  
Mitchell v. M.N.R., note 468 above, p. 417, paras. 55-56.  
Page: 332  
“clear evidence”, says the Province, requiring an historical and anthropological  
record complemented by written documentation.  
[815] The Province notes the evidence, relied upon by the Defendants, shows only  
occasional appearances in defined areas – none of which is related to areas where  
the Defendants have constructed their cabins. The occasional appearance in  
Newfoundland to seize a ship, act as military allies, or to travel to St. Pierre to see a  
priest, does not establish Newfoundland as being “traditional territory” of the Cape  
Breton Mi’kmaq, submits the Province. These disparate episodes do not point to  
traditional hunting and fishing in these undefined areas but, rather, non-traditional  
presence associated with European contact, in the Province’s view.  
[816] The Defendants say that, in any event, as a matter of public policy, the  
Mi’kmaq of Conne River should be given treaty rights similar to those enjoyed by  
the specific communities which were signatories to the original treaties. The  
Province contends that to do so is to view the treaty rights as being pan-Mi’kmaq  
and would do away with the legal requirements for treaty rights set out in the  
Supreme Court of Canada’s jurisprudence. This would transform treaty rights  
adjudication into a matter of public policy preference with little or no consideration  
of the historical context or the wording of the document itself.  
[817] The Province argues that, since Newfoundland cannot reasonably be  
considered part of traditional Mi’kmaq territory, it is unlikely either party would  
have contemplated a treaty right to hunt, fish or trap on the Island at that time.  
(v) Subsequent Conduct of the Parties  
[818] The Supreme Court of Canada has recognized that subsequent behaviour by  
the signatories to a treaty is a relevant indicator in determining the intent of the  
parties.684  
[819] The Province submits the subsequent conduct of the parties indicates that  
neither the Nova Scotia authorities, the Newfoundland authorities, the British  
Board of Trade nor the Mi’kmaq themselves saw the June 25, 1761 Treaty as  
conferring special rights on Mi’kmaq in Newfoundland. The Province contends  
684  
R .v. Sioui, note 671 above, p. 442.  
Page: 333  
this is evident from the failure of the British to establish truckhouses in  
Newfoundland, the request by Chief Jeannot for passports to travel as a British  
subject to another jurisdiction, Palliser’s reaction to Mi’kmaq arrival on the Island,  
and official British reaction to the Mi’kmaq request for presents from Captain  
Thompson.685  
• The Absence of Truckhouses and the Issuance of Licences  
[820] The June 25, 1761 Treaty included a so-called “truckhouse clause”. As a  
method of ensuring that the Mi’kmaq remained faithful to the British Crown, and  
to prevent further trade between the Mi’kmaq and the French, the British required  
that the Mi’kmaq trade only at the truckhouses established by His Majesty’s  
Government in Nova Scotia. The Mi’kmaq promised:  
And I do further engage, that we will not Traffick, Barter or Exchange  
any Commodities in any manner but with such persons, or the Managers  
of such Truckhouses as shall be appointed or established by His  
Majesty’s Governor at Fort Cumberland or elsewhere in Nova Scotia or  
Acadia.686  
[821] Truckhouses were subsequently established in six locations in Nova Scotia  
including Chignecto, Lunenburg, St. John, Windsor, Annapolis and the Eastern  
Battery.687 Truckhouses, however, were never established in Newfoundland.  
[822] The cost of the truckhouse system was borne from the public purse of Nova  
Scotia,688 and the Nova Scotia public authority would not fund a truckhouse in a  
distant and different jurisdiction, such as Newfoundland, says the Province. There  
685  
Patterson, Expert Report, pp. 58-87.  
686  
Treaty of Peace and Friendship, June 25, 1761 (CO 217/18), f. 278 [Province’s Historical Documents,  
vol. 34, CD 482];  
687  
Marshall #1, para. 32. Dr. Wicken states that there were five truckhouses; one at Annapolis,  
Lunenburg, Fort Windsor, Fort Edward and the Eastern Battery, while Binnie J. stated the British established six  
truckhouses, following the signing of the treaties in 1760 and 1761, including Chignecto, Lunenburg, St. John,  
Windsor, Annapolis and “the Eastern Battery” along the coasts from Halifax.  
688  
Marshall #1, para. 32. Dr. Wicken confirms that there was no truckhouse set up in Newfoundland.  
Page: 334  
is nothing in the historical record to suggest that the local Mi’kmaq were to bring  
trade items from Newfoundland to any of the Nova Scotia truckhouses.  
[823] The notion that the system of truckhouses did not apply to Newfoundland is  
also supported by the evidence provided in the Schemes of the Fishery, which make  
no reference to an established fur trade in Newfoundland between natives and  
Europeans.689  
[824] Following the Treaty of Utrecht in 1713, there are sporadic references in the  
Schemes of the Fishery to Cape Breton Indians coming to Cape Ray to hunt, but  
there is nothing to indicate any form of established fur trade.690  
[825] The first mention in the Schemes of the Fishery of any fur trade with the  
natives occurs in 1769, long after the establishment of the truckhouses. In that  
year the record indicates trade with the natives at Codroy and the Bay of Islands to  
the value of £50.691  
[826] Dr. von Gernet pointed out that in 1790, the venerable Newman and Hunt  
Company, which had a presence in southeastern Newfoundland since the 17th  
century, reported only a few “Indians” among the numerous non-aboriginal settlers  
689  
Gale Warren, Schemes and General Returns of the Fishery in Newfoundland, January 7, 2000  
[Province’s Historical Documents, vol. 82, CD 973]. The Schemes of the Fishery were annual reports provided by  
Commodores, on board Newfoundland fleets, to the British Board of Trade. They were initially attached to the  
Answers to the Heads of Enquiry and provided details exclusively on the fishery. However, the Schemes were  
eventually expanded to include critical information on population, overwintering statistics, and most importantly, the  
fur trade and native European contact.  
690  
Letter from the Council of Trade and Plantations to Secretary Stanhope, March 2, 1716, Calendar of  
State Papers, Colonial Series, America and West Indies, vol. XXIX, 1716 - July 1717, Doc. No. 70, p. 39  
[Province’s Historical Documents, vol. 25, CD 290]. Letter from Gledhill to the Commissioners of Trade and  
Plantations, December 17, 1720 (CO 194/7), ff. 64-65 [Province’s Historical Documents, vol. 27, CD 318]. In order  
to keep the English from hunting in the area, the French are reported as being “very industrious in spreading reports  
that the Indians of Cape Britton are comeing to St. Peters and the harbours adjacent to plunder the French  
inhabitants...”. Letter from Captain Taverner to Mr. Popple, 1716, Calendar of State Papers, Colonial Series,  
America and West Indies, vol. XXIX, 1716 - July 1717, Doc. No. 44, pp. 14-15 [Province’s Historical Documents,  
vol. 25, CD 285].  
691 “A General Scheme of the Fishery and Inhabitants of Newfoundland for the Year 1769” (CO 194/28),  
f. 121 [Province’s Historical Documents, vol. 51, CD 716]. For other references to 18th century trade see CD 745,  
CD 748, CD 789, CD 791 and CD 811. Dr. von Gernet clearly explains the post-1760 presence of natives in  
Newfoundland in his report. See von Gernet, Expert Report, pp. 187-188.  
Page: 335  
who were trading furs at Little Bay (on Long Island which separates Bay d’Espoir  
from Hermitage Bay).692 Again, this activity is not indicative of any form of long  
term established trade.  
[827] Additional evidence that the truckhouse did not apply to Newfoundland can  
be found in the licencing system that superceded the truckhouses. Within a little  
less than two years of its establishment, the Nova Scotia truckhouse system was  
replaced by a system of licencing that applied only to Nova Scotia. Dr. Patterson  
stated in his report:  
Mi’kmaq traders made use of the truckhouses established for a brief time  
in the early 1760s under the terms of their treaties and given the force of  
law by acts of the Nova Scotia legislature. When the Crown vetoed the  
truckhouse arrangement, the Mi’kmaq accepted the system of licenced  
traders that followed.693  
The Government of Nova Scotia passed an Act on July 2, 1762 for the “Regulation  
of the Indian Trade.”694 In his report, Dr. Wicken described the new system of  
trade put in place by this Act:  
This new system entailed licensing a select number of merchants to trade  
with the Mi’kmaq. In order to ensure that the Mi’kmaq would be treated  
fairly, the government forced merchants to post a bond which would be  
confiscated if they were found to be guilty of unsavoury practices. As  
many as twenty-four licences were issued. Significantly, no restrictions  
were placed upon where the merchants could trade, an abrupt change  
from the previous system. For Cape Breton families this would have  
meant that henceforth, they would have traded with any licenced trader  
who chose to trade with them. For instance, Charles Robin, engaged in a  
series of transactions during the Spring of 1768 with various Mi’kmaq  
communities inhabiting coastal areas between Pictou on the north shore  
692  
von Gernet, Expert Report, at pp. 205-206; Little Bay Ledger: Newman and Hunt Company, 1790-  
1791 (MG 482, B-3-1, Reel E8), pp. 2, 34 [Province’s Historical Documents, vol. 89, CD 1009].  
693  
Patterson, Expert Report, at p. 60. See also An Act to prevent any Private Trade or Commerce with the  
Indians, September 23 1760, Nova Scotia Assembly Minutes [Province’s Historical Documents, vol. 94, CD 1132];  
Abstract of supplies to truckhouses, November 1760 (CO 217/18), n.p. [Province’s Historical Documents, vol. 94,  
CD 1133]; Legislation regulating the Indian trade, Statutes at Large of Nova Scotia, I (Halifax, [1805]), pp. 53, 62,  
78 [Province’s Historical Documents, vol. 95, CD 1134].  
694  
An Act for the Regulation of the Indian Trade, July 2, 1762 (CO 217/19), ff. 33-37v [Province’s  
Historical Documents, vol. 95, CD 1135].  
Page: 336  
of mainland Nova Scotia to Gaspesie. Other licenced merchants may  
have traded with Mi’kmaq either on the island of Cape Breton itself or  
along the southern coast of Newfoundland, though there are no extant  
documents which record such transactions.695  
[828] The licences were general in form and read as follows:  
Licence is hereby given unto Edward Barron to Traffack with the Indians  
in the Bay of Fundy he Conducting himself without Fraud or Violence &  
submitting himself to the observance of such Regulations, as may at any  
time be hereafter Established for the Better ordering of such Traf[fak] or  
Commerce This Licence to Continue during Pleasure  
Given under my Hand and Seal at Halifax this twenty Fourth Day of  
September 1765 in the fifth Year of his Majesty’s Reign  
M Wilmot.696  
[829] This licencing system, like the truckhouses, did not exist in Newfoundland.  
During his testimony Dr. Wicken readily accepted Newfoundland did not establish  
a licensing regime comparable to that of Nova Scotia.  
• Jeannot’s Request for a Passport  
[830] In 1765, Chief Jeannot Pequid Oualouet of the Cape Breton Mi’kmaq  
applied for and received a passport to travel to Cape Ray, Newfoundland.697  
[831] In his report, Dr. Patterson explained the significance of the Chief’s  
behaviour:  
The fact that in 1765 a Mi’kmaq sagamaw or chief from Cape Breton  
applied for and received a passport to travel outside of Nova Scotia  
illustrates a number of points. It suggests that the chief was aware of the  
need and value of official passports and of the law requiring them; he  
accepted that laws governing subjects of the crown in Nova Scotia  
695  
Wicken, Expert Report, pp. 22-23.  
696  
Licence to trade with Indians, issued by Montagu Wilmot, Governor of Nova Scotia to Edward Barron,  
September 4, 1765 (RG 1/165), f. 390 [Province’s Historical Documents, vol. 45, CD 619]. See also Licence to  
trade with the Indians, November 9, 1765 (RG 1/165), f. 394 [Province’s Historical Documents, vol. 45, CD 633].  
697  
Pass issued to Chief Jean Pegedeux Oulaut by Richard Bulkeley, July 22, 1765 (RG 1/165), f. 385  
[Province’s Historical Documents, vol. 45, CD 614]. See also von Gernet, Expert Report, pp. 192-193.  
Page: 337  
included natives; and he realized that travel to Newfoundland was travel  
to another jurisdiction and thus required a passport.698  
[832] Jeannot’s request for a passport is understandable given the number of  
events, during the 1760's, which would have facilitated the desire of the Mi’kmaq  
to travel outside of their traditional territory to the Island of Newfoundland. Dr.  
von Gernet summarizes these events in his report:  
The facts of the period are well known. In brief, the French and Indian  
War (Seven Years War, 1756-63) led to the expulsion of Acadians from  
the Maritimes, the fall of Louisbourg to the British in 1758, the  
capitulation of the French and Mi’kmaq on Ile Royale, and the  
annexation of Cape Breton to Nova Scotia in 1763. Not only did the war  
significantly disrupt the lives of the Mi’kmaq people, but many of their  
allies and trading partners moved to other places, including the islands of  
Saint-Pierre and Miquelon which were restored to the French in 1763 by  
the Treaty of Paris. The Mi’kmaq also signed treaties in 1760-61 by  
which they submitted to British authority, promised not to engage in  
commerce with Britain’s enemies and agreed to bring their peltry to  
official government trading establishments. Then there was the death in  
1762 of Father Maillard, the most important spiritual leader of the  
Mi’kmaq. While the British had agreed that the Mi’kmaq could continue  
in their Roman Catholic faith, Mi’kmaq converts failed to find priests in  
Nova Scotia and were forced to seek spiritual fulfilment elsewhere.  
Furthermore, a Mi’kmaq dependency on French trade goods, subsidies  
and gratuities in the form of firearms, ammunition, emergency food  
rations and other articles proved problematic after the French began to  
falter and such supplies dried up. After the war, the Mi’kmaq were  
obliged to chase down their expelled allies or request the goods from  
their former enemies. Finally, increased encroachment on their  
homelands in Nova Scotia by white surveyors and settlers put additional  
pressure on the indigenous population. The Mi’kmaq had been in  
Newfoundland before, but now they came in unprecedented numbers.  
What had changed in the interim was the staggering loss of Ile Royale  
and the restoration of Saint-Pierre.699  
698  
Patterson, Expert Report, p. 71.  
699  
von Gernet, Expert Report, at pp. 187-188. See also Administrative Report by Captain Samuel  
Thompson to the Admiralty, 1763 (Greenwich: National Maritime Museum, Graves Papers/105), f. 46 [Province’s  
Historical Documents, vol. 35, CD 504]; Despatch from Thomas Graves to the Board of Trade, October 20, 1763  
(CO 194/15), ff. 108-109 [Province’s Historical Documents, vol. 36, CD 521] and Letter from Thomas Graves,  
Governor of Newfoundland to Philip Stephens, Secretary of the Admiralty, October 20, 1763 (ADM 2/371), f. 466  
[Province’s Historical Documents, vol. 36, CD 523].  
Page: 338  
[833] Passes were issued to Mi’kmaqs in Nova Scotia at various times during the  
treaty-making period. The object in issuing what Dr. Patterson refers to as military  
passes was to facilitate the signing of peace treaties, and subsequently to recognize  
and protect those who had indicated their peaceful intentions.700 The second  
category of passes was less military and more a part of the regulatory regime of  
British civil law.701 Any British subject who planned to leave Nova Scotia, whether  
for travel or trade, had to acquire a passport. In 1758, the first Nova Scotia  
legislature passed an Act which forbade travel outside of the province without first  
acquiring a passport.702  
[834] In a letter to Colonel Pringle, the Governor of Nova Scotia defended his  
actions of providing a passport to Jeannot in 1765:  
Jean Oulah, thro’ a decent Submission to the Authority of Government,  
Applied for my leave to go over to the other Shore for the purpose of  
trading and hunting; had I refus’d my Consent, which I could not with  
propriety have with held, he might have taken that liberty with impunity,  
nor indeed can I find out the Law which prevents any of the Kings  
subjects passing from any part of his Dominions to the other...703  
[835] Dr. Patterson, in relation to the pass issued to Jeannot, stated:  
[Nova Scotia Colonial Officials] issued passes to British subjects, and  
that was the basis upon [which] Jeannot received [his]. In fact, it’s the  
basis upon which he asked for [it].  
[836] The Province argues the passes are indicative of the intentions of both parties  
with respect to the treaties of 1760-1761; the British, by issuing the pass, indicated  
that the Mi’kmaq were subject to the laws of Nova Scotia and that there had not  
700  
Patterson, Expert Report, p. 62.  
701  
Patterson, Expert Report, p. 70.  
702  
An Act for Preventing Persons Leaving the Province Without a Pass, 32 Geo. II, Cap. XXIII (N.S.),  
Nova Scotia Statutes at Large (1805), pp. 96-98 [Province’s Historical Documents, vol. 95, CD 1148].  
703  
Letter from Montagu Wilmot, Governor of Nova Scotia to Lieutenant Colonel Pringle, Commanding  
Officer at Louisbourg, December 12, 1765 (RG 1/136), ff. 72-73 [Province’s Historical Documents, vol. 46, CD  
636].  
Page: 339  
been any rights granted in Newfoundland and, correspondingly, the Mi’kmaq in  
applying for the passes were conceding that they did not normally possess rights in  
such a place and that Newfoundland was an area beyond the scope of what was  
considered their traditional territory.  
[837] Therefore, through his conduct in applying for a passport from Nova Scotia  
authorities to travel to Newfoundland, Chief Jeannot Pequid Oualouet clearly  
indicated that he saw himself as a resident of Nova Scotia and was subject to its  
laws,704says the Province.  
• Reaction of Governor Palliser  
[838] In October 1763, Governor Graves informed the Board of Trade that a small  
number of Mi’kmaq had arrived in Newfoundland. In an attempt to prohibit them  
from trading with the French, Graves suggested that the Mi’kmaq should be  
confined to their own side of the Gulf and that the Board of Trade should  
implement a policy of removal while their numbers were still few.705  
[839] In 1764, the newly appointed governor of Newfoundland was Hugh Palliser.  
While his predecessor, Governor Graves, had shown concern about the presence of  
Nova Scotia Mi’kmaq in Newfoundland, Palliser was even less enthusiastic. He  
stated explicitly that he did not want them in Newfoundland and felt that the  
government of Nova Scotia was not doing enough to keep the Mi’kmaq from  
travelling to Newfoundland.  
[840] Initially, Palliser was quick to place blame on British officials in Nova  
Scotia for the increased Mi’kmaq presence in Newfoundland. He felt that what had  
started as isolated passes to two Cape Breton chiefs had now turned into many.706  
In 1765, Palliser began writing his barrage of letters to British officials in Nova  
Scotia castigating them for issuing passes to the Mi’kmaq. On July 2, 1765,  
704  
Patterson, Expert Report, p. 71. See also Pass Issued to Chief Jeannot by Richard Buckley, July 22,  
1765 (RG 1/165), f. 385 [Province’s Historical Documents, vol. 45, CD 614].  
705  
Despatch from Thomas Graves, Governor of Newfoundland to the Board of Trade, October 20, 1763  
(CO 194/15), ff. 108-109 [Province’s Historical Documents, vol. 36, CD 521].  
706  
Patterson, Expert Report, p. 79.  
Page: 340  
Palliser wrote Colonel Pringle, the commanding officer at Louisbourg, on the  
matter:  
I have Just now receiv’d Information that a party of the Mickmack  
Indians belonging to the Government of Nova Scotia, have Landed in  
this Country in ye Neighbourhood of the Island St Pierres and Miquelon  
in the Bay of Despair in Order to take up their Residence there, that they  
Produce Passports with your Authority to do so, at which I am  
exceedingly Surpriz’d as you cant be a Stranger to the impropriety & ye  
Dangerous Consequence of such a Measure without first having His  
Majs Comands upon that Head, which in that case would also have been  
Signified to me, I must therefore Inform you that Incouraging or  
Authorizing these People to come to this Country is of the most  
Dangerous Consequence to the Kings Service, and I desire you will recall  
any Passports you have granted of that Kind, and to Issue no more such  
till you may receive proper Authority for so doing, none of His Majs  
Subjects whether Indians or others from  
the Plantations can by Law, or ever have been permitted to resort to this  
Government, except to bring Suply’s of Provisions for the British Fishers  
during the Fishing Season, and even such are by the Kings Express  
Comands to quit this Country when I do.707  
[841] Palliser was also of the opinion that the Mi’kmaq would never have  
attempted to come to a part of this Island (southeastern Newfoundland), “where  
they have never been before”, if they had not been invited by the French. He  
believed that the French were luring the Mi’kmaq back into an alliance with them  
by supplying arms and ammunition.708  
[842] Palliser informed officials that both natives and Acadians, who were trading  
at St. Pierre, were breaking the law according to the Acts of Trade and  
707  
Letter from Hugh Palliser, Governor of Newfoundland to Lieutenant Colonel Pringle, October 22, 1765  
(GN 2/1/a vol. 3), f. 345 [Historical Documents Relating to Hugh Palliser and the Exercise of his Authority on the  
South Coast, CD 624, Tab 9]. Palliser continued to write to officials throughout 1766. See Letter from Hugh  
Palliser, Governor of Newfoundland to Philip Stephens, Secretary of the Admiralty, August 25, 1766 (CO 194/27),  
ff. 257-264v [Historical Documents Relating to Hugh Palliser and the Exercise of his Authority on the South Coast,  
CD 669, Tab 16] and Letter from Hugh Palliser, Governor of Newfoundland to Michael Francklin, Governor of  
Nova Scotia, October 16, 1766 (CO 217/44), ff. 81-83v [Historical Documents Relating to Hugh Palliser and the  
Exercise of his Authority on the South Coast, CD 677, Tab 26].  
708  
Despatch from Hugh Palliser to the Board of Trade, October 30, 1765 (CO 194/27), ff. 132-135v  
[Historical Documents Relating to Hugh Palliser and the Exercise of his Authority on the South Coast, CD 627, Tab  
14]. See also, Patterson, Expert Report, pp. 82-83.  
Page: 341  
Navigation.709 In February 1767, Secretary of State, Lord Shelburne, concurring  
with Palliser on the illicit trade issue, wrote Lord William Campbell, then  
Governor of Nova Scotia, and stated:  
...There is too much reason to think that a very pernicious and extensive  
clandestine Trade is carried on between Nova Scotia and the French  
Islands of St. Pierre and Miquelon particularly at Sigonick and Port  
Dauphin; your Lordship will therefore be particularly careful to detect  
and discourage this Trade, & to prevent as much as possible the  
Intercourse between the Canadians & Indians with the French at those  
Islands; [Directions] will be given to the [Cruizer] to cooperate in this  
Service. The Indians in particular require the utmost attention, their  
unusual and, tumultuous [Meetings] must be prevented and their Annual  
migrations to Newfoundland & the Islands above [mentioned].710  
[843] By October 1765, Palliser had begun taking official steps to remove the  
Mi’kmaq from the Island of Newfoundland, and on the 22nd of that month, issued  
the following order and pass:  
Whereas I am Inform’d that several of His Majesty’s Indian Subjects  
from Cape Breton resort to this Country to Hunt and Trade during the  
Winter without first Aplying for & obtaining my Leave for that Purpose,  
and whereas none of His Majesty’s Subjects from the Plantations are  
permitted to resort to this Country but in ye Sumer Season with Suply’s  
of Provsions for the Fishers and Inhabitants, I therefore hereby Order and  
Direct that all People whatever from the Plantations whether Indians or  
others without Distinction, that may be met with in this Country after the  
first day of November, shall Imediately retire to the Governments to  
which they respectively belong, and in Case it should be His Majesty’s  
Pleasure that any of them should hereafter be permitted to resort to and  
abide in this Country, Notice thereof will be given by the Governor of  
Hallifax, to the Chiefs of the Indians who may desire such Liberty, but  
till report thereof is made to His Majesty and his Pleasure thereon known,  
none can be Admitted, in the mean time this is to Serve as a Passport to  
all such as may be met with, to retire as above directed without any  
hindrance or Molestation from any Persons whatsoever, and all His  
709  
Leonard Woods Labaree, ed., Royal Instructions to British Colonial Governors, 1670-1776, vol. II  
(New York: Octagon Books, 1967), pp. 752-760 [Patterson Supporting Documents, vol. 10, Tab 171]. The Acts of  
Trade and Navigation, passed by the British Parliament, regulated trade within the British empire and applied to all  
subjects of the Crown, specifically restricting with whom they could trade as well as the procedures they must follow  
in trade outside the empire. See also Patterson, Expert Report, p. 83.  
710  
Despatch from Lord Shelburne, Secretary of State to William Campbell, Governor of Nova Scotia  
February 19, 1767 (CO 217/44), ff. 164v-165 [Province’s Historical Documents, vol. 50, CD 691].  
Page: 342  
Majesty’s Officers & Subjects are Accordingly hereby Strictly Charg’d  
to be Aiding and Assisting to all such in their return.711  
[844] By the following year, Palliser felt that he had enough evidence to justify  
ordering the Mi’kmaq out of the country. In 1766, he informed the Secretary of the  
Admiralty, Phillip Stephens, and Lieutenant Governor Francklin of Nova Scotia of  
the action that he had recently taken:  
The Chiefs of the Indians were summoned and had delivered to them my  
Orders to quit this Country, with my Passports to intitle them to friendly  
treatment and Asssistance from all whom they might meet in their return,  
they accordingly went away; had they been permitted to stay, we should  
most certainly have seen by this time some Thousands of Nova Scotia  
and Canada Indians under French Influence in that part of this Island,  
with all the disaffected Accadians (who under French influence refuse to  
take the Oaths) mix’d with them disguised as Indians, which would have  
accomplished the French Plan for rendering that part of the Coast useless  
to us, by frightening our People away...712  
and  
I have taken those Passes from them, and gave them peremptory Orders  
to return to their own Government; but I now despair of ever getting  
them out of this Country.713  
[845] The Province contends the actions of Governor Palliser of Newfoundland, as  
described above, clearly show that it was not within British contemplation that the  
treaty rights conferred on the Cape Breton Mi’kmaq were exercisable in any part of  
Newfoundland.714 Dr. Janzen reiterated this when he pointed out that the Mi’kmaq  
were the only group that Palliser attempted to remove from Newfoundland.  
711  
Order and Pass, October 22, 1765 (CO 194/27), ff. 144-144v [Historical Documents Relating to Hugh  
Palliser and the Exercise of his Authority on the South Coast, CD 625, Tab 15].  
712  
Letter from Hugh Palliser, Governor of Newfoundland to Philip Stephens, Secretary of the Admiralty,  
August 25, 1766 (CO 194/27), f. 260 [Historical Documents Relating to Hugh Palliser and the Exercise of his  
Authority on the South Coast, CD 669, Tab 16].  
713  
Letter from Hugh Palliser, Governor of Newfoundland, to Michael Francklin, Lieutenant Governor of  
Nova Scotia, October 16, 1766 (CO 217/44), f. 82 [Historical Documents Relating to Hugh Palliser and the Exercise  
of his Authority on the South Coast, CD 677, Tab 26].  
714  
See Patterson, Expert Report, at pp. 78-84 [S.E.P. 2]. See also Despatch from Palliser to the Board of  
Trade, October 30, 1765 (CO 194/16), ff. 170-174v [Province’s Historical Documents, vol. 45, CD 628]; Despatch  
from Palliser to the Board of Trade, October 21,1766 (CO 194/16), ff. 302-305 [Province’s Historical Documents,  
vol. 48, CD 678].  
Page: 343  
• British Reaction to Jeannot’s Request for Presents  
[846] On April 16, 1764 Captain Samuel Thompson, commanding H.M.S. Lark,  
wrote to the Admiralty that he had renewed a Treaty of Peace with “Jenot Piquid  
Oülat and Bernard, Chiefs of the Mickmack Indians of Cape Breton,” while off the  
island of Codroy the previous September.715  
[847] Subsequent to Thompson’s letter, the Secretary of State wrote the Board of  
Trade in London to suggest that Jeannot’s and Bernard’s request for presents be  
fulfilled when His Majesty’s ship the Tweed arrived at its station on that part of  
Newfoundland.716  
[848] On April 28, 1764, Captain Thompson requested permission, directly from  
the Board of Trade in London, to provide presents to the Cape Breton Mi’kmaq as  
requested by Jeannot and Bernard in September 1763:  
I wrote to Mr. Stephens Secretary to the Admiralty on the 16th. Inst  
relative to some Things which two Indian Chiefs with their Tribes who  
came on board his Majesty’s Ship Lark under my Command, begg’d I  
would bring them on my return to Newfoundland, & sent him annexed an  
Inventory of the Things they required, of which Letter Mr Stephens has  
inform’d me that a Copy has been sent to your Board, & that the Lords  
Commissrs of the Admiralty have submitted to you, whether it may not be  
proper to notify these Indians in their Request. Permit me to tell your  
Lordships that as the Value of the Articles they demand is but small, & the  
granting of them may here after induce these Indians to do every thing in  
their Power to promote the Interest of His Majestys subjects, and as I have  
(I may say) promis’d to carry said things to them (if permitted so to do) I  
am humbly of Opinion, that their Request ought to be comply’d with, but  
submitting this to your Rt Honble. Board. I am,...717 .  
715  
Letter from Captain Samuel Thompson to Philip Stephens, Secretary of the Admiralty, April 16, 1764  
(CO 217/20), ff. 320-320v [Historical Documents Relating to Captain Thompson’s Request 1763, CD 546, Tab 8].  
See also Letter from Thomas Graves, Governor of Newfoundland to Philip Stephens, Secretary of the Admiralty,  
October 20, 1763 (ADM 2/371), f. 466 [Historical Documents Relating to Captain Thompson’s Request 1763, CD  
553, Tab 5].  
716  
Despatch from Philip Stephens, Secretary of the Admiralty to the Board of Trade, April 21, 1764 (CO  
217/20), ff. 318-318v [Historical Documents Relating to Captain Thompson’s Request 1763, CD 547, Tab 9].  
717  
Despatch from Captain Samuel Thompson to the Board of Trade, April 28, 1764 (CO 217/20), f. 322  
[Historical Documents Relating to Captain Thompson’s Request 1763, CD 550, Tab 10].  
Page: 344  
[849] The Province submits the reaction of the British Board of Trade indicates that  
the Cape Breton Mi’kmaq were seen as resident in and dependent upon Nova  
Scotia. On May 1, 1764 the Board of Trade sent the following despatch:  
... I am directed to desire you will acquaint the Lords Commissioners of  
the Admiralty, that all affairs, relative to the Indians in America, whether  
of Treaty with them, or delivery of Presents from His Majesty, have been  
usually transacted by the Governor or Commander in Chief of the Colony,  
within which they reside, and with which they are in connection or  
alliance: and as my Lords Commissioners for Trade and Plantations are of  
Opinion, that the delivery of Presents to the Micmacs, who are dependent  
upon Nova Scotia, through any other Channel than that of the Governor of  
the Colony, may be attended with inconveniencies, they submit to the  
Lords Commissioners of the Admiralty, whether it may not be proper to  
direct the Commander of His Majesty’s Ships, to be stationed on that part  
of Newfoundland frequented by these Indians, to desire the said Indians to  
make application to the Governor of Nova Scotia for what necessary  
supplies they may want, in which Case my Lords Commissioners for  
Trade and Plantations will send proper directions to the said Governor of  
Nova Scotia... .718  
[850] While the Board of Trade understood that it was in their best interest to  
supply the Mi’kmaq with presents, the Board also felt that it was not the  
responsibility of British naval officers stationed at Newfoundland to supply such  
goods to the Cape Breton Mi’kmaq. The Board resolved that “directions be given  
to Cap:t Percival of the Tweed, who is to be stationed on that part of Newfoundland,  
in case the said Indians should come on Board in expectation of the Presents, to  
desire them to apply to the Gov:r of Nova Scotia for them, who will have proper  
instructions on that head.”719  
718  
Despatch from Board of Trade to Philip Stephens, Secretary of the Admiralty, May 1, 1764 (CO 218/6),  
ff. 203v-204v [Historical Documents Relating to Captain Thompson’s Request 1763, CD 552, Tab 12]. See also  
Despatch from the Board of Trade to Montagu Wilmot, Governor of Nova Scotia, May 8, 1764 (CO 218/6), ff. 205-  
206 [Historical Documents Relating to Captain Thompson’s Request 1763, CD 557, Tab 16]; Despatch from the  
Board of Trade to Montagu Wilmot, Governor of Nova Scotia, July 13, 1764 (RG 1/31, no. 34) [Historical  
Documents Relating to Captain Thompson’s Request 1763, CD 565, Tab 18].  
719  
Minutes of the Admiralty, May 3, 1764 (ADM 3/72), f. 6 [Historical Documents Relating to Captain  
Thompson’s Request 1763, CD 555, Tab 13]. See also Letter from Philip Stephens to the Board of Trade, May 2,  
1764 (CO 217/20), ff. 324-324v [Historical Documents Relating to Captain Thompson’s Request 1763, CD 554, Tab  
14]; Letter from Philip Stephens to Captain Percival, May 3, 1764 (ADM 2/724), ff. 211-213 [Historical Documents  
Relating to Captain Thompson’s Request 1763, CD 556 Tab 15]; and von Gernet Expert Report, p. 191.  
Page: 345  
[851] The response of the Governor of Newfoundland, Hugh Palliser, is consistent  
with that of the Board of Trade. In 1766, Palliser ordered the Cape Breton Mi’kmaq  
to return to “their own government.”720 He also left instructions for John Broom,  
the principal resident at Codroy, that if he:  
should meet with the Chief of the Mickmack Indians Named Jeannot,  
Pequid, Oülat, and Bernard I desire you will Inform them in Consequence  
of their Application the Last Year to Captain Thompson of the Lark  
Frigate for some things, that their Request has been sent home to England  
and I am Directed to Acquaint them that all Applications of that sort must  
be made through the Governor of Hallifax as they belong to that  
Government and not to Newfoundland.721  
[852] The Province submits there is no evidence, then, based on the post-treaty  
behaviour of the signatories to the 1761 Treaty in Halifax, to indicate that the treaty  
with the Cape Breton Mi’kmaq was intended to confer any rights in Newfoundland  
to either the Cape Breton Mi’kmaq or the Miawpukek Band.  
[853] The historical record does not show that the local Mi’kmaq from Cape  
Breton, the Newfoundland authorities, the Nova Scotia authorities, or the British  
Board of Trade intended or understood any of the local Nova Scotia Treaties to  
have conferred treaty rights on any portion of the Island of Newfoundland, says the  
Province, and Dr. Patterson was correct when he stated:  
It appears to me that the Newfoundland Mi’kmaq of the 19th and 20th  
Centuries were not covered by a treaty that was made in Nova Scotia, in  
the sense that they were granted no rights that were transferable to  
Newfoundland. My interpretation, and I believe based upon solid  
evidence, not only for Nova Scotia but other jurisdictions, is that  
governors of British colonies made treaties with Natives residing within  
their provinces or that were dependent upon their province or colony, and  
that they did not confer rights that were exercisable in distant places,  
particularly not in other people’s jurisdiction. It appears to me, on the  
basis of my study of the Treaties of 1725 and ’26, that this point was made  
very clear by the British to Native delegates, at a very early stage.  
720  
Letter from Hugh Palliser to Michael Francklin, Governor of Nova Scotia, October 16, 1766 (CO  
217/44), f. 82 [Historical Documents Relating to Hugh Palliser and the Exercise of his Authority on the South Coast,  
CD 677, Tab 26].  
721  
Letter from Hugh Palliser to John Broom, July 29, 1764 (GN 2/1/a vol. 3), f. 235 [Historical Documents  
Relating to Captain Thompson’s Request 1763, CD 567, Tab 19].  
Page: 346  
Separate treaties for Massachusetts, New Hampshire and Nova Scotia tells  
Native people we are not lumping you all together, you will have [a]  
treaty with the government that’s closest to you and in which your  
territory or most of your territory can be found, where you live ... .  
[854] The Province argues, therefore, the Halifax Treaty of June 25, 1761, on  
which the Defendants rely, is a local treaty with the Mi’kmaq Band of Cape Breton,  
a local treaty of local application. There is no evidence to suggest that the 1761  
Treaty with the Cape Breton Mi’kmaq was intended to confer rights to anyone other  
than the local tribe of Cape Breton, says the Province, or to confer rights outside of  
the present territory of Nova Scotia. Further, it was outside the capacity of a Nova  
Scotia Governor to grant rights in Newfoundland, submits the Province. Also, there  
is no indication that either of the parties to the 1761 Treaty (the Nova Scotia  
colonial officials or the Cape Breton Mi’kmaq Band) intended the treaty to confer  
rights exercisable in the area to which the Defendants now claim a treaty right.  
(e) The Effect of Captain Thompson’s “Renewal”  
[855] If this Court concludes that at the time of its execution the June 25, 1761  
Treaty did not extend treaty rights to the Cape Breton Mi’kmaq Band in a  
jurisdiction as far away as Newfoundland, there is the further issue raised by the  
Defendants of whether Captain Thompson’s “renewal” of a treaty while off Codroy  
had the effect of extending such rights to the Miawpukek Band and to the Island.  
[856] In September of 1763, a group of Mi’kmaq led by two Mi’kmaq chiefs from  
Cape Breton, all of whom were on their way to St. Pierre to seek the services of a  
Roman Catholic priest, met Captain Samuel Thompson, commander of H.M.S. Lark  
off Codroy, Newfoundland. During this encounter a Treaty of Peace was renewed.  
Captain Thompson informed the Secretary of the Admiralty of this event in a letter  
dated April 16, 1764:  
Jennot Piquid Oulat and Bernard, Chiefs of the Mickmack Indians of Cape  
Breton, being onboard His Majestys Ship Lark under my Command (when  
off the Island of Codroy) in September last, to renew a treaty of Peace  
with his Majesty (a Copy whereof I have already sent you) they then  
begged of me, on my return to Newfoundland to bring them the things  
mentioned on the other side hereof, of which if their Lordships would  
permit, I promised to do. I therefore desire you may be pleased to inform  
me, whether the Government will supply these Indians with said things, or  
Page: 347  
whether they will allow me to carry them to them, as I should be glad to  
have it in my Power to perform my Promise... .722  
[857] To date, despite extensive research, a copy of the treaty, referred to by  
Captain Thompson, has not been located. However, we are given an important clue  
as to its identity in a letter from Newfoundland Governor, Thomas Graves, to Philip  
Stevens, Secretary of the Admiralty, in October 1763:  
...I learn from Captain Thompson, that some of the Louisbourg Indians are  
upon this Island, and wanted to go to St. Peters to get a Priest, he renewed  
the Treaty with them made by General Whitmore... .723  
[858] Since the June 25, 1761 Treaty at Halifax was signed by Belcher and not  
Whitmore, it seems probable, says the Province, that Captain Thompson’s  
“renewal” is in reference to the oath of allegiance taken by General Whitmore,  
discussed below.724 The Province notes that Edward Whitmore was not even  
725  
present at the signing of the 1761 Treaty at Belcher’s farm in Halifax.  
[859] Dr. Patterson described the incident on the Lark in the following terms:  
The Mi’kmaq encounter on the Lark also shows how well the Mi’kmaq  
had learned to position themselves between rival European nations to their  
advantage. Their request for English supplies was opportunistic, while  
their willingness to renew a treaty with the king shows that they knew  
how to go about getting gifts... Thompson’s statement that they renewed a  
treaty rather than that they agreed to a new treaty is fully consistent with  
the fact that the chief of the Cape Breton band had already made as many  
as three treaties with the British: at Merigomish (with Lieutenant  
Schomberg), at Louisbourg (with General Whitmore), and at Halifax (with  
Jonathan Belcher)...Effectively, then, the Cape Breton chiefs simply  
722  
Letter from Captain Samuel Thompson to Philip Stephens, Secretary of the Admiralty, April 16, 1764  
(CO 217/20), ff. 320-320v [Province’s Historical Documents, vol. 40, CD 546].  
723  
Letter from Thomas Graves, Governor of Newfoundland to Philip Stephens, Secretary of the Admiralty,  
October 20, 1763 (ADM 2/371), f. 466 [Province’s Historical Documents, vol. 36, CD 523].  
724  
Dr. William Wicken, the historian relied upon by the Defendants, stated in his report and initially  
testified that the renewal likely included the 1761 treaty. Wicken, Expert Report, p. 30. However, in cross-  
examination, Dr. Wicken conceded that what is likely referred to by Captain Thompson is the renewal of the 1759  
treaty made by General Whitmore.  
725  
Wicken, Expert Report, pp. 4-5.  
Page: 348  
renewed their oaths of allegiance to the British crown, as they might have  
done with British military officers anywhere in the region since this was  
by now standard practice. The term “renew” is useful also in establishing  
that in the mind of both the British and the Mi’kmaq, Jeanot was still  
bound by former treaties even though he was outside of Nova Scotia by a  
considerable distance.  
...  
The treaty renewal off Codroy did not establish a new relationship, but rather  
simply confirmed the position of the Mi’kmaq people as subjects of the British  
crown. These were precisely the grounds on which Governor Wilmot of Nova  
Scotia had issued passports to the Mi’kmaq in the first place. As British subjects,  
they were entitled to passports to travel to Newfoundland or any other part of His  
Majesty’s dominions.726  
[860] At the time of the meeting on the Lark, there is no indication in the historical  
record that the relationship between the Cape Breton Mi’kmaq and the British  
colonial authorities in Nova Scotia had broken down. Rather, consistent with the  
oath taken by Whitmore, it seems probable, says the Province, that Thompson’s  
“renewal” was affirmation of the oath of allegiance the Cape Breton Mi’kmaq had  
to the British Crown. According to Dr. Patterson:  
..military treaties were common practice and that the Mi’kmaq, many of  
the Mi’kmaq first made a military treaty of submission to the British  
Crown through a military officer, such as Whitmore. And, this is the only  
occasion in which I’ve seen one renewed. I think that perhaps that’s just  
Jeannot’s way of proving to Captain Thompson, look, I’m friendly, I’ve  
got a treaty with General Whitmore, I’ll renew it anytime at all. I’ve  
promised my allegiance to the British Crown. Now, I’m, of course,  
putting words in his mouth, but to me, that’s the type of thing that I think  
would characterize this meeting. It was a friendly meeting and it was  
based on the fact that Jeannot saw himself as a British subject and was  
willing any day of the week to prove it by renewing his treaty, his oath to  
uphold his loyalty to the British Crown.  
...  
... I think what we have here is simply a renewal of an oath of allegiance to the  
British Crown.  
[861] The Province submits this is consistent with Captain Thompson’s having no  
authority to grant to the Cape Breton Mi’kmaq special rights exercisable in  
Newfoundland. Captain Thompson declined to grant the presents requested by the  
726  
Patterson, Expert Report, pp. 77-78.  
Page: 349  
Cape Breton Mi’kmaq even though they were financially of little value. Instead, he  
wrote to his superiors in London to request permission:  
Permit me to tell your Lordships, that as the Value of the Articles they  
demand is but small, & the granting of them may hereafter induce these  
Indians to do evrything in their Power to promote the Interest of His  
Majestys subjects and as I have (I may say) promis’d to carry said things  
to them (if permitted so to do) I m humbly of Opinion, that their Request  
ought to be comply’d with, but submitting this to your Rt Honble. Board ...  
727  
.
[862] The Province contends it is incongruous to say that a naval captain who felt it  
necessary to request permission to provide trivial goods would nevertheless, on his  
own accord, grant treaty rights in Newfoundland.  
[863] Dr. Wicken, in his report, stated that the significance of this so-called treaty  
renewal is that it took place in Newfoundland:  
In September 1763, Jeannot Peguidalouet and Bernard, both of whom are  
identified as “Chiefs of the Mickmack Indians of Cape Breton,” renewed a  
“treaty of Peace with His Majesty,” near Cape Ray, on the southwestern  
coast of Newfoundland.  
...  
... Regardless of the exact text which formed the basis of the treaty signed  
[by] Chief Jeannot, what is important is that he did so in Newfoundland.728  
[864] The Province notes, however, that in cross-examination, Dr. Wicken  
acknowledged that the incident on H.M.S Lark did not occur on the Island of  
Newfoundland, but on a boat off the coast of Newfoundland.  
[865] The Province argues that even if the renewal by Captain Thompson  
constituted a renewal of the June 25, 1761 Treaty it is unclear how the place of  
renewal could have anything to do with the territorial scope of the treaty right,  
noting that the Treaty of Paris gave no rights in Paris, nor did the June 25, 1761  
signing give the Mi’kmaq rights to Belcher’s farm.  
[866] As Dr. Patterson explained:  
727  
Despatch from Captain Samuel Thompson to the Board of Trade, April 28, 1764 (CO 217/20), f. 322  
[Province’s Historical Documents, vol. 40, CD 550].  
728  
Wicken, Expert Report, pp. 30-31.  
Page: 350  
... the purpose of the native chiefs being on the board the Lark is to renew  
a treaty, and it may well be that they renewed the treaty before any  
evidence on the land at Codroy manifested themselves, including concern  
among the citizenry. The way Thompson puts it is that the Indians  
promised perpetual friendship, meaning “well, if they’ve already renewed  
their treaty with me, this seems to be their line. We’ve got a treaty and we  
promised to be friendly.”  
In any event, if there’s a connection in a cause and effect relationship,  
such as you have suggested, it appears to me that not a whole lot hinges  
upon the thing. The point is the Mi’kmaq from Cape Breton are fully  
under the understanding that they have a treaty with the British. They  
believe they have pledged their allegiance to the British crown and are  
friends, not foes, and they demonstrate it by expressing their willingness  
to renew a treaty with the British. The reason why people, settlers on  
Codroy, might have been afraid of them is not clear to me. Have the  
Mi’kmaq done anything? Maybe they’ve done nothing. Maybe their  
simple presence there has alarmed settlers. Maybe they’ve done nothing.  
[867] The Province submits the historical record is clear in that the Cape Breton  
Mi’kmaq were seen as resident in and subject to Nova Scotia laws and any requests  
for presents should be made to their own government.729  
[868] There is nothing in the historical record to indicate that the British authorities,  
the Newfoundland authorities, the Nova Scotian authorities or the Cape Breton  
Mi’kmaq understood that the episode on board the Lark created treaty rights  
anywhere in Newfoundland, says the Province.  
(f) Nature of the Treaty Right  
[869] If this Court concludes that the Defendants are the modern day beneficiaries  
of the June 25, 1761 Treaty and that the rights accruing under this Treaty include  
the geographical area in Newfoundland claimed by the Defendants, the Province in  
the alternative questions the nature of the treaty right and asks whether the June 25,  
729  
Letter from Phillip Stephens to Captain Percival, May 3, 1764 (ADM 2/724), ff. 211-213 [Historical  
Documents Relating to Captain Thompson’s Request 1763, CD 556, Tab 15]. See also Minutes of the Admiralty,  
May 3, 1764 (ADM 3/72), f. 6 [Historical Documents Relating to Captain Thompson’s Request 1763, CD 555, Tab  
13]; Answers to the Queries of the Board of Trade, 1763 (Greenwich: National Maritime Museum, Graves Papers /  
105, Articles 41-67) [Historical Documents Relating to Captain Thompson’s Request 1763, CD 505, Tab 1]; and  
Palliser to John Broom, July 29, 1764 (GN 2/1/a vol. 3), f. 235 [Historical Documents Relating to Captain  
Thompson’s Request 1763, CD 567, Tab 19].  
Page: 351  
1761 Treaty gave the Defendants the right to hunt, fish and trap for subsistence or to  
earn a moderate likelihood, as contended by the Defendants?  
[870] The Supreme Court of Canada in Marshall #1 concluded that the truckhouse  
clause, contained in the March 10, 1760 Treaty, provided the Le Have, Richibucto  
and Shubenacadie - Musquodoboit Mi’kmaq signatories the right to earn a moderate  
livelihood. The Province notes the Court did so, however, not based on the express  
language of the treaty but on the circumstances leading to its signing. Binnie J.  
noted:  
The appellant’s position is that the truckhouse provision not only  
incorporated the alleged right to trade, but also the right to pursue  
traditional hunting, fishing and gathering activities in support of that trade.  
It seems clear that the words of the March 10, 1760 document, standing in  
isolation, do not support the appellant’s argument. The question is  
whether the underlying negotiations produced a broader agreement  
between the British and the Mi’kmaq... .730  
Binnie J. observed after considering the extrinsic evidence “that the surviving  
substance of the treaty is not the literal promise of a truckhouse, but a treaty right to  
continue to obtain necessaries through hunting and fishing by trading the products  
of those traditional activities subject to restrictions that can be justified under the  
Badger test.”731  
[871] The Court concluded that “necessaries” equated to a “moderate livelihood”,  
which included:  
such basics as “food, clothing and housing, supplemented by a few  
amenities”, but not the accumulation of wealth (Gladstone, supra, at para.  
165). It addresses day-to-day needs. This was the common intention in  
1760. It is fair that it be given this interpretation today.732  
[872] In order to arrive at this interpretation of the nature of the right the Court  
adopted the principle that, when engaging in treaty interpretation the courts may  
consider extrinsic evidence. Binnie J. stated:  
730  
Marshall #1, note 468 above, p. 523, para. 7.  
731  
The same, p. 546, para. 56.  
732  
The same, p. 547, para. 59.  
Page: 352  
even in the context of a treaty document that purports to contain all the  
terms, this Court has made clear in recent cases that extrinsic evidence of  
the historical and cultural context of a treaty may be received even absent  
any ambiguity on the face of the treaty.733  
[873] Similarly, Cory J. stated in Badger:  
... when considering a treaty, a court must take into account the context in  
which the treaties were negotiated, concluded and committed to writing.734  
[874] In Marshall #1, in determining the extent of the rights of the Nova Scotia  
Mi’kmaq under the March 10, 1760 Treaty, Binnie J. concluded:  
it is necessary to ascertain the treaty terms not only by reference to the  
fragmentary historical record, as interpreted by the expert historians, but  
also in light of the stated objectives of the British and Mi’kmaq in 1760  
and the political and economic context in which those objectives were  
reconciled.735  
[875] Given the Supreme Court of Canada’s comments concerning extrinsic  
evidence, the Province argues it becomes critically important not to draw  
generalizations pertaining to treaties since each one is surrounded by different  
pieces of extrinsic evidence that will fundamentally affect the way in which courts  
interpret treaties. The nature of a right under one treaty will not be the same as that  
found under another treaty. Although the June 25, 1761 Treaty between the Crown  
and the Cape Breton Mi’kmaq was part of the 1760-1761 Peace and Friendship  
Treaties, this does not mean that a court can make generalized findings in respect to  
the Cape Breton treaty, simply based on evidence surrounding other treaties signed  
by different aboriginal groups as part of the larger process, says the Province. As  
the Supreme Court stated in R. v. Sundown:  
“Treaty rights, like aboriginal rights, are specific and may be exercised  
exclusively by the First Nation that signed the treaty. The interpretation  
733  
The same, p. 524, para. 11.  
734  
R. v. Badger, (1996), 133 D.L.R. (4th) 324 (S.C.C.), p. 344, para. 52.  
735  
Marshall #1, note 599 above, p. 539, para. 41.  
Page: 353  
of each treaty must take into account the First Nation signatory and the  
circumstances that surrounded the signing of the treaty”.736  
[876] The Province notes this approach is supported by the Supreme Court’s words  
in Kruger v. R, where Dickson J. observed that aboriginal title “should be so  
considered on the facts pertinent to that Band and to that land, and not on any global  
basis”.737 A consideration of extrinsic evidence, relevant to the June 25, 1761  
Treaty, leads inevitably to a consideration of the military treaties discussed above in  
connection with Schomberg and Whitmore, as well as the religious circumstances of  
the Mi’kmaq.  
•
Religion as a Treaty Right  
[877] The Defendants also rely on the fact that the Whitmore Treaty of 1759 and  
the Halifax Treaty of June 25, 1761 with the Cape Breton Mi’kmaq tribe included  
the promise of a free exercise of religion. The Defendants argue that hunting,  
fishing and trapping can be regarded as a spiritual experience within the  
contemplation of the Mi’kmaq religious experience.  
[878] The Province submits that what the Mi’kmaq sought in demanding such  
terms was the ability to practise their faith as Roman Catholics, nothing more. The  
British promise to permit the Mi’kmaq the free exercise of their religion had  
nothing to do with hunting and fishing, says the Province.  
[879] When Chief Jeannot spoke of religion in his speech of June 25, 1761, he was  
speaking of the exercise of Roman Catholicism. The Province notes he affirmed  
himself to be a Christian and expressed regret that he had not previously known that  
the British were Christian:  
There is one thing that binds me more Strongly and firmly to you than I  
can possibly express, and that is your indulging me in the free Exercise of  
the Religion in which I have been instructed from my [Cradle].  
736  
R. v. Sundown, (1999), 170 D.L.R. (4th) 385 (S.C.C.) p. 396, para. 25.  
737  
Kruger v. R, (1977), 75 D.L.R. (3d) 434 (S.C.C.) p. 437.  
Page: 354  
You [confess] and believe, as well as I, in Jesus Christ the eternal Word of  
Almighty God. I own I long doubted whether you was of this Faith. I  
declare moreover -  
Moreover that I did not believe you was baptised; I therefore am  
overwhelmed with great Sorrow and repentance that I have too long given  
a deaf ear to my Spiritual director touching that Matter, for often has he  
told me to forbear imbruing my hands in the Blood of a people who were  
Christians as well as myself. But at present I know you much better than I  
did formerly; I therefore renounce all the ill Opinions that have been  
insinuated to me and my Brethern in times past against the Subjects of  
Great Britain.738  
[880] In response to Jeannot’s speech, Governor Belcher reiterated: “Your Religion  
will not be rooted out of this Field. Your patriarch will still feed & nourish you in  
this Soil as his Spiritual Children.”739 According to Dr. Patterson, Belcher is saying  
“you can be Catholics. He’s saying Catholicism is your religion and you can  
practice it.”  
[881] The early conversion of the Mi’kmaq to Catholicism and the fervour with  
which they embraced that faith is well documented, notes the Province, Jeannot’s  
request, then, comes as no surprise, nor was Captain Thompson surprised to  
encounter Chief Jeannot and other Cape Breton Mi’kmaq on their way to St. Pierre  
to seek the services of a Roman Catholic priest, in order to receive the  
sacraments.740  
[882] Some years later, the observation of Lieutenant Governor Michael Francklin  
of Nova Scotia made it clear that the Nova Scotia officials also understood the  
promise of religious liberty as being the right to practise Roman Catholicism with  
the assistance of Catholic priests:  
As your Lordships require to know the Nature and extent of the Promises  
made to the Indians, respecting Romish Priests, I am to Acquaint Your  
738  
Treaty of Peace and Friendship, June 25, 1761 (CO 217/18), ff. 282v-283 [Province’s Historical  
Documents, vol. 34, CD 482].  
739  
The same, f. 280.  
740  
Administrative Report from Captain Samuel Thompson to the Admiralty, 1763 (Greenwich: National  
Maritime Museum, Graves Papers/105), f. [46v] [Province’s Historical Documents, vol. 35, CD 504].  
Page: 355  
Lordships, that in the Year 1759 & 1760, when the New Settlements were  
forming, and it was so necessary to make Peace with the Indians, they had  
Assurances given them of the free Exercise of their Religion, without  
which, it is certain they would not have come to any terms; these  
assurances were made by the interposition of Abbé Maillard a Man of  
very reputable Character, who had been a French Missionary many Years  
at the Isle of Breton, and was employed by General Whitmore and  
General Laurence...  
...  
In the Year 1763 the Indian Chiefs of St Johns River and Passamaquodie,  
came here to Sollicit for a Preist as Pere Germain a Jesuit who had resided  
with them, having retired to Quebec; and it appears by the Minutes of  
Council of the 5th July, that they were Acquainted, endeavours would be  
Used to procure a Preist as soon as a fit person could be Obtained he  
should be sent to them.  
...  
Preists they seem determined to have whether permitted by the  
Government or not, for they have found Methods to be supplyed from  
Miquelon & St Peters with Books and Many Superstitious Baubles, and as  
it is suspected, from the hands of Preists ...  
...  
I would therefore humbly propose to Your Lordships, that leave may be  
given for an Application from this Government to the Governor of  
Canada, to Select One or two Preists, natives of Canada if possible, and  
such on whose Attachment & fidelity to the English interest dependance  
may be had, and that an Allowance be provided for their Support.741  
[883] The discussion of Mi’kmaq culture and spiritualism at the time of first  
contact, which occurred centuries before the Halifax Treaties, is simply not relevant  
to requests by the Cape Breton Mi’kmaq to practise the Catholic religion, contends  
the Province.  
[884] As well, says the Province, indications that Mi’kmaq in Newfoundland  
retained some aspects of aboriginal spiritualism in the time of Cormack, and even at  
present, does not translate to mean that either the Nova Scotia colonial officials or  
the Cape Breton Mi’kmaq were contemplating spiritualism practices other than the  
practice of Christianity at the time of the signing of the Halifax Treaties.  
741  
Extract of a letter from Michael Francklin, Governor of Nova Scotia, to the Board of Trade, September  
13, 1766 (CO 217/44), ff. 89v-92v [Province’s Historical Documents, vol. 48, CD 672].  
Page: 356  
[885] The Province submits the references to sun worship in Wallis and Wallis, The  
Micmac Indians of Eastern Canada,742 in no way indicates that Chief Jeannot is  
requesting anything other than his tribe’s right to be Christians.  
[886] Further references in Wallis and Wallis to the importance of communal feasts  
in the traditional Mi’kmaq culture was not a discussion of religion, but of social  
organization, says the Province. While Christian missionaries may have contributed  
to the evolution of such ceremonies into feast days such as St. Anne’s day, the  
Plaintiff submits there is simply no relation between this and the treaty promise to  
the Cape Breton Mi’kmaq to practise Catholicism.  
[887] The Province contends the evidence of Nicholas Jeddore reinforces the  
importance of Catholicism to the Miawpukek Band in contemporary times:  
[Matthews]  
Okay. How about the spiritual side of things in Conne River and  
in your family and so on? What could you say about that? Was  
there –the Mi’kmaq people in Conne River, their spiritual beliefs  
and so on, do you have any comments to make on that?  
[Jeddore]  
Well, everybody seemed to me to be practicing their religion, you  
know, all the old people, as well as young. You know, when we  
did get the chance to go to church, everybody was to church.  
Everybody went to confession. Everybody went to Holy  
Communion. Everybody got married and seemed, you know,  
there was a belief that there was a God and the salvation of your  
soul.  
[888] The Province submits the right of freedom of religion presented to the Nova  
Scotia Mi’kmaq tribes in the local Nova Scotia treaties related to the practice of  
Catholicism. The Defendants’ assertion that the freedom of religion contained in  
the Nova Scotia military treaties, signed by General Whitmore in 1759, and the  
Halifax Treaty, signed at Belcher’s farm in 1761, could be exercised by hunting,  
fishing, and gathering is not valid in history or law, contends the Province.  
[889] The Province notes there are no oral traditions among the Mi’kmaq of Conne  
River relating to the treaty rights now claimed. None of those who testified at  
Conne River, whether the Elders or the present Chief, made mention of “treaty  
rights” or that they had been told of such rights.  
742  
Wilson D. Wallis and Ruth Sawtell Wallis, The Micmac Indians of Eastern Canada (Minneapolis:  
University of Minnesota Press, 1955), p. 143 [Province’s Ethnography Documents, vol. 4, Ed 7].  
Page: 357  
[890] The Province relies upon the report of Dr. Patterson:  
Were the Newfoundland Mi'kmaq, then, covered by a treaty with the  
British? The only treaties that might qualify were, in my interpretation,  
those made during the Seven Years’ War, including the military treaties  
and the Halifax treaties. These treaties were, in general, comprehensive  
and enduring treaties governing the relationship between the Mi'kmaq and  
the British Crown. Yet the military treaties were simply treaties of  
submission, strengthened by oaths of allegiance; there were no known  
reciprocal promises to the Mi’kmaq related to hunting, trade, settlement or  
anything other than perhaps liberty of religion. The Halifax treaties,  
furthermore, were limited in their scope to the jurisdiction of Nova Scotia;  
if they conferred special rights to the Mi’kmaq, they could not have  
exceeded what was in the power of a Nova Scotia governor to give.  
... the evidence suggests that the Newfoundland Mi'kmaq of the 19th and  
20th centuries came from Cape Breton. Like others from Cape Breton,  
they or their forefathers experienced the British military success at  
Louisbourg in 1758, the subsequent capitulation of the French  
commander, and the surrender of French sovereignty in Cape Breton to  
the British. For their part, the Cape Breton Mi’kmaq acknowledged and  
formally accepted the British triumph in several ways. They accepted  
articles of capitulation from a British military officer. They followed up  
by making a treaty with General Whitmore at Louisbourg, in the form of  
an oath of allegiance to the British crown. Finally, they made a treaty in  
Halifax in 1761, wherein they affirmed their peaceful intentions and  
established a relationship with the colony of Nova Scotia that was similar  
to that established by other Mi’kmaq communities in Nova Scotia. Thus,  
when Cape Breton was joined to Nova Scotia in 1763, there was no need  
to revisit the matter. The Cape Breton Mi’kmaq had a treaty with the  
British crown in right of Nova Scotia in which they affirmed their  
willingness to live as British subjects, accept British law, and exercise  
their rights and privileges as British subjects in accordance with British  
custom. The passport subsequently sought by and issued to Chief Jeannot  
is an excellent example of the nature of the rights and privileges  
anticipated by both parties. There is, moreover, nothing in the Cape  
Breton treaties, or in the historical record extrinsic to the treaties, to  
suggest that the British granted the Mi’kmaq distinctive rights which they  
could transfer to another jurisdiction. Jeannot and his followers were  
viewed as residents of Cape Breton, and nothing in the record suggests  
that either party construed their territory as extending beyond Cape Breton  
itself. Certainly, no governor of Nova Scotia had the authority under his  
commission or instructions, to grant treaty rights beyond the jurisdiction  
of his province. The historical evidence confirms the interpretation  
adopted elsewhere that the treaties of 1760 and 1761 were local treaties of  
local application. Available evidence provides no support for the notion  
Page: 358  
that a Cape Breton treaty could confer aboriginal benefits to be enjoyed by  
the Mi’kmaq in Newfoundland.  
B.  
The Defendants’ View of the Evidence on Treaty Rights  
1.  
British-Mi’kmaq Treaties  
[891] Experts from both sides discussed four components of the treaty relationship  
between the Mi'kmaq Band headed by Chief Jeannot Peguidalouet and British  
authorities during the years 1759-1763:  
20 November 1759: Articles of capitulation negotiated by Lieutenant  
Schomberg with Abbe Maillard on behalf of Acadians and Mi'kmaq at  
Merigomish, [CD 1117]  
? November 1759: Articles "agreed on and Signed... in Form" between Chief  
Jeannot and General Whitmore at Louisbourg [no copy found];  
25 June 1761: Treaty of peace and friendship signed by Chief Jeannot,  
Lieutenant-Governor Jonathan Belcher and various colonial officials at Halifax -  
the "Halifax Treaty" [no copy found, agreed by Dr. Patterson and Dr. Wicken to  
be virtually identical to a treaty signed that same place and date, with the Shediac  
Tribe [CD 482];  
6 September 1763: Treaty or renewal signed by Captain Thompson of the  
Lark on the Newfoundland station and Chiefs Jeannot and Bernard off  
Codroy - the "Lark Treaty" [no copy found; the Defendants submit this  
was a renewal of the Schomberg - Whitmore Treaty]  
[892] In July 1758 the fortress of Louisbourg on Cape Breton Island surrendered to  
the British. Chief Jeannot Peguidalouet and his followers, as well as Mikmaq from  
other Bands who had fought alongside the French, fled to the mission of Abbé  
Maillard at Chapel Island and then, in company with the missionary and some  
Acadians, to Merigomish (near present-day New Glasgow on the Nova Scotian  
mainland). In October, 1759, Brigadier-General Edward Whitmore despatched Lt.  
Henry Schomberg to Merigomish from Louisbourg. General Whitmore was short of  
troops and vessels, having contributed both to the siege of Quebec, and wished to  
put an end to privateering out of Merigomish. Lieutenant Schomberg arrived there  
in late October, informed the Acadians and Mi'kmaq that Quebec had recently fallen  
to the British, and warned of military action if they persisted in their resistance.  
Lieutenant Schomberg also stated, in a letter to Abbé Maillard dated October 26,  
1759:  
Page: 359  
“I am commanded to assure you by His Majesty that you will enjoy all  
your possessions, your liberty, property with free exercise of your religion  
as you can see by the declaration that I have the honour of sending you.743  
[893] Another version of this letter, presumably based on a contemporary  
translation, was reproduced as a preamble to the "Articles of Capitulation" signed  
on November 20, 1759 and published in the March 31, 1760 Boston Evening Post.  
In this published version, the whole, including the articles, is identified as a letter of  
that date to Abbé Maillard from Lieutenant Schomberg. In this version the  
Schomberg assurance is worded as follows:  
I am authorized by the King my master's commands to assure you that you  
shall enjoy all your liberties and properties with a free exercise of your  
religion as you will perceive by the enclosed manifesto I have the honour  
to send you.744  
[894] The Defendants submit that, despite his Principle of Treaty Interpretation #2  
"the contents of a treaty are to be found in the treaty document, the minutes of its  
negotiation, or in some other reliable historical form",745 Dr. Patterson did not  
address these assurances to Abbé Maillard in either his expert report or testimony.  
In his view "the British promised to treat the natives fairly, and assured them they  
would have religious liberty, but beyond this they made no promises".746  
[895] Maillard and Schomberg agreed upon articles of capitulation and an exchange  
of hostages. Six Mi'kmaq chiefs were to journey back to Louisbourg in company  
with Schomberg for a parlay with General Whitmore. In the event, seven Mi'kmaq  
journeyed to Louisbourg, including Jeannot Peguidalouet, identified in Whitmore's  
later correspondence as “chief of the Indians of this island". Some further  
negotiation occurred, resulting in a document or documents which neither party was  
743Translation of a copy of the letter sent to the Governor of New France and copied in turn by  
him to Versailles May 6, 1760, Archives Nationales: Original Correspondence, October 26,1759 -  
Schomberg to Maillard, A.C., C11A, p. 59r-v [Wicken Supporting Documents, vol. 8, Tab 9].  
744The Boston Evening Post (March 31, 1760) [CD 1117] - only the Articles of Capitulation are  
transcribed. Schomberg’s letter to Maillard appears in the appended original.  
745Patterson, Expert Report, pp. 28; 44-45; 49  
746Patterson, Expert Report, p. 49.  
Page: 360  
able to produce. The first report on this process from General Whitmore's hand is  
dated December 1, 1759:  
Thirty four French People have surrendered & also Seven Indians, among  
Them Jeanot Pequid OuaLouet chief of the Indians of this Island; They  
have taken the Oaths of Allegiance to his Britannick Majesty and  
promised to be faithfull good Subjects in all time to Come. 747  
[896] The Defendants contend this agreement probably included other articles in  
addition to an Oath of Allegiance taken by both Indians and Acadians. The  
Defendants refer to the further report of Whitmore, also addressed to General  
Jeffrey Lord Amherst, then commander of British forces in America (where a state  
of war between various Indian nations and the British continued):  
I acquainted you in some of my Letters in December and January last that  
the Indians were Come in, and that they had agreed to live with us on a  
footing of Friendship. Accordingly Several of their Chiefs came in here  
and articles were agreed on and Signed by Them and Me in Form, On  
which Occasion as They pleaded they were Naked and Starving I  
Cloathed them and gave them Some presents of Provisions etc.748  
[897] Further insight into the negotiations between the Mi'kmaq and General  
Whitmore is offered, say the Defendants, by the diary of Jonathan Proctor, the New  
England soldier posted to Louisbourg 1759-1760;  
November the 29. Lt Shambrey in from Pigto and has Come to a  
Cap[itulation?] With the french and the Ingens and som of them have Com  
Down with him To Conferme their Peace, that they May have Liberty to  
Trade.749  
[898] Subsequently, Chief Jeannot represented the Cape Breton Band at the signing  
of a formal Treaty of Peace and Friendship in Halifax, on June 25, 1761 (the  
"Halifax Treaty"). The Cape Breton Mi'kmaq were one of four Mi'kmaq  
communities to treat with British colonial officials, including Lieutenant-Governor  
of Nova Scotia Jonathan Belcher, on that date. Within this treaty there is no express  
747Gen. Whitmore to Gen. Amherst (December 1, 1759) [CD 448].  
748Gen. Whitmore to Gen. Amherst (November 14, 1760) [CD 1119].  
749Jonathan Proctor of Danvers., “Diary kept at Louisbourg 1759 to 1760" (November 29,1759)  
[Wicken Supporting Documents, vol. 2, Tab 5, p. 32]..  
Page: 361  
renewal of the Reciprocal Promises of the 1726 Treaty, nor of the assurances as to  
liberty and property made by Lt. Schomberg to Abbé Maillard in 1759. The  
Defendants rely upon Dr. Wicken’s opinion that items such as the reciprocal  
promises of the 1726 Treaty "that the said Indians should not be Molested in their  
Persons, Hunting Fishing and Shooting & planting on their planting ground"750  
would have been understood by Chief Jeannot Peguidalouet to have been renewed  
during the events of 1759-1763, emphasizing that "For the Mi'kmaq, treaties  
embodied a living relationship."751  
[899] Within the text of the Halifax Treaty there is no specific mention of hunting,  
trapping and fishing. But, according to Dr. Wicken, this would be implicit in the  
"truckhouse clause", which reads: “And I do further engage that we will not traffick,  
barter or Exchange and Commodities in any manner but with such persons or the  
managers of such Truck houses as shall be appointed or Established by His  
Majesty's Governor...”.  
[900] In Dr. Wicken’s opinion the truckhouse provision reflects broader  
underlying negotiations, where the Mi'kmaq were assured of a right to pursue  
hunting, trapping, fishing and gathering activities in support of trade.752  
[901] Dr. Wicken testified that, in his view, the truckhouse clause was "... a central  
component of this new treaty, that is absolutely fundamental to the British is that  
there be a commercial relationship" and that this was critical to both sides in  
anticipation of abandoning the artificial dependence of the Mi'kmaq on European  
goods during wartime.  
[902] The Defendants submit that the difference of historical opinion between Dr.  
Patterson and Dr. Wicken, with respect to whether the treaties of 1759-1761  
incorporate negotiated rights to trade or are merely abject submissions, has its  
counterpart in the contrasting opinions of Dr. Prins and Dr. von Gernet regarding  
the motivation for Mi'kmaq presence in Newfoundland. The Defendants note each  
party was restricted to using European-produced documentation in an attempt  
750Treaty of Peace and Friendship (1726) [CD 333].  
751Wicken, Expert Report, pp. 26-27.  
752Wicken, Expert Report, pp. 21-23.  
Page: 362  
understand the timing and motivation of Mi'kmaq use of Newfoundland. Dr. Prins  
accepts the Mi'kmaq as agents of their own history and this, say the Defendants,  
underlies his view of their presence in Newfoundland. Dr. von Gernet advocates an  
interpretation whereby Mi'kmaq presence in Newfoundland was precipitated by  
Europeans. The Defendants submit that such a view relies to a great extent on  
British documents, which suggested that the Mi'kmaq are moved by the French.  
The Defendants submit that, in contrast, numerous documents from the French era  
bolster the view expressed by Dr. Janzen:  
... you have to understand, the aboriginals had their own agenda. They  
would engage in hostilities and did engage in hostilities against the  
English during the 1720s at a time when France and England were  
nominally at peace. They weren't the servants of the French. They were a  
separate nation and regarded themselves as such, and acted as such.  
[903] The Defendants submit the following reports give examples of the Mi'kmaq  
acting as a "separate nation" from the French:  
•
•
"They are abandoning that land in order to give the moose, and other  
animals on which they have been subsisting time to regenerate."753  
"... the sauvages were acting without a commission and, given that this  
sort of nation was free to roam the forests like wolves and bears, I was  
in no position to regulate their conduct nor oppose their whims. "754  
"In effect he [the Mi'kmaq] does go far away, like to the Island of  
Newfoundland, where nothing prevents him from making a very good  
hunt: but he will report nothing about how it went, because the true  
plan that he had was nothing other than to spend all the furs that he had  
acquired for brandy and French wine which fishermen on the shores  
there offer in exchange without any scruples."755  
•
2.  
The Context of the Treaties  
753Subercase to the Minister (October 22, 1705) [CD 200].  
754Costebelle to the Minister (1707) [CD 218].  
755Abbé Maillard, An Account of the Customs and Manners of the Micmakis and Maricheets  
Savage Nations, etc.(1758) [CD 439].  
Page: 363  
[904] Dr. Wicken concludes the treaty of 1761 does apply to the Mi'kmaq of  
Newfoundland. He indicates in his summary that the Mi'kmaq frequented  
Newfoundland before and after the 1761 treaty and that treaty renewal at  
Newfoundland in 1763 confirms that the Mi'kmaq-British Treaty relationship  
extended to Newfoundland. Dr. Wicken, under cross-examination, testified that if  
the 1763 Treaty renewal in Newfoundland involved the 1759 "Whitmore Treaty"  
rather than the 1761 "Halifax Treaty," this did not alter his opinion. Dr. Wicken  
indicated that the Schomberg capitulation and the Whitmore Treaty began a process  
defining the treaty relationship between the Mi'kmaq and the British that continued  
with the 1761 Halifax Treaty:  
Q: So would you give credence to the presumption or conclusion reached  
by the authors there that this may have been the Whitmore Treaty?  
A: Yes, this could be the Whitmore Treaty, but my feeling about this is  
that it may be identified as the Whitmore Treaty and they may talk about  
it as the Whitmore Treaty, but the basis of that Whitmore Treaty is  
Lieutenant Schomberg's letter which he sends to Maillard at Mirligueche  
on October, later October 1759. And that letter becomes the basis by  
which Richibucto signs the treaty with Governor Lawrence on March  
10th, 1760. And you find that letter actually becomes circulated by  
Maillard to Abbe Manach who is the French missionary at Richibucto in  
late 1759 and 1760. So there is a common basis which sort of links the  
treaty which was signed with Whitmore and the later treaty which is  
signed by Governor Lawrence with the Mi'kmaq in March 10th, 1760, and  
which is also the same treaty which is signed by Jeannot later on June  
25th, 1761.  
Q: So documentation that refers to the Whitmore Treaty, which we  
understand earlier from your report and from the other documents that we  
have seen to be effectively an oath of allegiance from what we know, that  
you now want us to infer that where the documentation says that, and not  
the 1761 Treaty, that we must now encompass the 1761 Treaty? How do  
we know what's in the mind of Chief Jeannot at the time?  
A: Well, we don't know everything that's in his-head of Jeannot at this  
time period. But what I would suggest to you is that treaty which was  
signed with Whitmore, regardless of how we might conceptualize it, it  
involves more than just an oath of allegiance, that it implicitly, in my  
mind, encompasses the words that are within the manifest sent from  
Schomberg to Abbe Maillard and it also encompasses discussions about  
trade. In Jonathan Proctor's journal of Chief Jeannot's arrival in  
Louisbourg in late November of 1759, he notes that there have been a  
group of Indians arrive at Louisbourg and among those issues that they are  
going to discuss is to have the liberty to trade.  
Page: 364  
[905] Dr. Patterson also concluded that the "military treaties" of 1759 "at the very  
least" provided important context for the 1760-61 Treaties of Peace and Friendship:  
The very existence of these treaties may shape our interpretation of the  
treaties later made in Halifax. At the very least, we must recognize that  
our understanding of the treaty relationship between natives of Atlantic  
Canada and the British crown has been incomplete. For some of the native  
communities, military treaties were part of a process that eventuated in  
treaties made in Halifax, in the years 1760 and 1761.756  
[906] Although researchers disagree as to when the Mi'kmaq first occupied and  
used southwestern Newfoundland, the Defendants submit it has been established  
that they used the area before and after 1761. Dr. Wicken concluded on the evidence  
that Mi'kmaq from Cape Breton frequented and used Newfoundland from the early  
1700s. He further concluded that by the time Chief Jeannot Peguidalouet signed the  
1761 treaty in Halifax, his Band's territory encompassed not only Cape Breton, but  
also parts of southern Newfoundland.757  
[907] Dr. Wicken pointed out that treaty-making between the British and natives  
has to be looked at as a process rather than a series of incidents in isolation, or even  
a series of recorded incidents. For the Mi'kmaq this process started in 1725 and  
continued up to 1763. In his opinion, the treaty-making process was intended not  
only to terminate specific hostile acts, but also to "wean" the Mi'kmaq from an  
historic alignment with the French - to allow British trade and settlement to  
flourish.  
[908] Dr. Wicken indicated that in his view the Mi'kmaq, in general, and Chief  
Jeannot Peguidalouet, in particular, would have understood the on-going  
treaty-making process and that, in signing the Halifax Treaty on behalf of his  
people, Chief Jeannot was also renewing previous treaties (including that of 1726).  
According to Dr. Wicken, in September of 1763 it mattered less what particular  
treaty was renewed than it did that both Mi'kmaq and British were assured that their  
treaty relationship and process extended to Newfoundland, to the benefit of both  
sides.  
756  
Patterson, Expert Report, p. 42.  
757  
Wicken, Expert Report, pp. 13-15.  
Page: 365  
[909] The Defendants contend Chief Jeannot Peguidalouet, obviously viewed  
Newfoundland as part of the territory in which he and his Band hunted, fished and  
trapped. The Defendants submit that by the terms of the 1761 treaty, and of the  
treaty process of 1759-61, the British encouraged the Mi'kmaq to engage in hunting,  
fishing and other harvesting activities, which would result in trade with the British,  
with no attempt to restrict the territory in which the Mi'kmaq could hunt, trap or  
fish.  
[910] The 1761 treaty was signed by Chief Jeannot Peguidalouet at Halifax but, as  
Dr. Wicken points out, it was the same text as was signed by three other Mi'kmaq  
communities on March 10, 1760. Dr. Patterson also supported this interpretation:  
Q: In terms of what we know of the Halifax treaties, amongst the various  
bands, are all the treaties, of the same tenor, in terms of what they  
delineate therein?  
A. Well, I want to stress that the written treaties, the written documents,  
are all written pretty much the same way, with very minor variations in  
the wording. They all have the same substance. But I've already testified  
and still believe that a treaty could be more than what's written. So it's my  
belief that as they actually were developed, each treaty was a distinctive  
treaty. If we accept that bona fide good faith negotiations took place for  
each, then one has to accept that the Cape Breton treaty of 1761 could be  
different from the treaty that was made by Chief Augustine in that it  
reflected the concerns and interests of those who were present in 1761.  
We do know, in 1761, something of what was said and that becomes part  
of our understanding of the treaty relationship between the British  
government of Nova Scotia and the Cape Breton Mi'kmaq. Each of these  
treaties therefore, in my view, must be understood in its context and each  
much be thought of as distinctive and unique. But if your question simply  
is are the written terms of these treaties the same from one to the other, the  
answer is yes, with the exceptions of the location of truckhouses, which  
we've talked about before (13 July 2001).758  
[911] The Defendants note that there were benefits to both parties in a treaty  
relationship and that the British anticipated Mi'kmaq hunter-gatherer subsistence  
was not a one-sided benefit to Mi'kmaq survival, but would also remove a drain on  
the colony's finances. As stated in Marshall #1759:  
758  
Wicken, Expert Report, pp. 21-22.  
759  
R. v. Marshall (1999) 177 D.L.R. (4th) 513 (S.C.C.), para 37.  
Page: 366  
While the tone of some of this criticism strikes the non-professional  
historian as intemperate, the basic objection, as I understand it, is that the  
judicial selection of facts and quotations is not always up to the standard  
demanded of the professional historian, which is said to be more nuanced.  
Experts, it is argued, are trained to read the various historical records  
together with the benefit of a protracted study of the period, and an  
appreciation of the frailties of the various sources. The law sees a finality  
of interpretation of historical events where finality, according to the  
professional historian, is not possible. The realty, of course, is that the  
courts are handed disputes that require for their resolution the finding of  
certain historical facts. The litigating parties cannot await the possibility  
of a stable academic consensus. The judicial process must do as best it  
can. In this particular case, however, there was an unusual level of  
agreement amongst all of the professional historians who testified about  
the underlying expectations of the participants regarding the treaty  
obligations entered into by the Crown with the Mi'kmaq. I set out, in  
particular, the evidence of the Crown's expert. Dr. Stephen Patterson, who  
spent many days of testimony reviewing the minutiae of the historical  
record. While he generally supported the Crown's narrow approach to the  
interpretation of the Treaty, which I have rejected on points of law, he did  
make a number of important concessions to the defence in a relatively  
lengthy and reflective statement which should be set out in full:  
Q: I guess it's fair to say that the British would have understood that the  
Micmac lived and survived by hunting and fishing and gathering  
activities.  
A: Yes, of course.  
Q: And that in this time period, 1760 and 61, fish would be amongst the  
items they would have to trade. And they would have the right under this  
treaty to bring fish and feathers and furs into a truckhouse in exchange for  
commodities that were available.  
A: Well, it's not mentioned but it's not excluded. So I think it's fair to  
assume that it was permissible.  
Q: Okay. It's fair to say that it's an assumption on which the trade  
truckhouse clause is based.  
A: That the truckhouse clause is based on the assumption that natives will  
have a variety of things to trade, some of which are mentioned and some  
not. Yes, I think that's fair. (emphasis added)  
Page: 367  
[912] Dr. Patterson also testified in the present case that General Whitmore in 1759  
had clear and specific motives for encouraging the Mi'kmaq to resume subsistence  
activities, and trade:  
Q: If I can direct your attention to page 46 of your report, Doctor, under, I  
guess, the paragraph that's footnoted as footnote 98. And I guess partway  
down that quote, I guess, Whitmore in his letter is stating "and at this  
time, the chief of the islands, who besides some clothing, makes a demand  
of powder, shot and arms for four men, which I would remain-besides, if I  
would remain in peace with them, I find I must comply with." And he  
talks about the French always supplying those items.  
A: Yes.  
Q: And he foresees that this would be an annual expense. In the context of  
French-English war in which the Mi'kmaq bore arms against the British,  
does it not seem strange or awkward that, in this instance, the British are  
now providing powder and shot and arms for four men?  
A: Well, I don't think so because they very fact that General Whitmore is  
prepared to provide arms and ammunition to the Mi'kmaq must indicate  
that he really doesn't think they're a threat, number one, not a military  
threat, and number two, he recognizes that this is the way they hunt, and  
he does want them to go out and to be self-sufficient in their hunting and  
he's acknowledging here-perhaps he's just learning, what we now  
recognize from years of study of the matter, that the Mi'kmaq have  
become very dependent on the French for certain items. And if the French  
are gone, then they're dependent on the British for the same items, and I  
think this is really what Whitmore is saying. "I'm discovering their  
dependence and I'm gone to have to do something about this. It's going to  
cost us money. Tell me what to do."  
[913] The Defendants also note that in Marshall #1, Justice Bennie, for the  
majority, indicated that the British signed a series of agreements with individual  
Mi'kmaq communities in 1760 and 1761, intending to have them consolidated into a  
comprehensive Mi'kmaq treaty that was never in fact brought into existence. Justice  
Binnie at para 5 stated:  
By the end of 1761 all of the Micmac Villages in Nova Scotia had entered  
into separate but similar Treaties.  
[914] The Court in Marshall #1 found that the truckhouse clause in the above treaty  
and the negotiations and context of the treaty process contemplated that the  
Mi'kmaq would hunt and fish and trade to obtain necessities from such activity.  
Page: 368  
[915] Dr. Patterson's view in the present case is that the British understood the  
Mi'kmaq to be a hunter-gathering society and the treaties recognized this. However,  
in Dr. Patterson's view, such rights were not preferential rights and existed only to  
the extent that they were enjoyed by all British subjects. The Defendants submit the  
Supreme Court in Marshall #1 specifically addressed this issue:  
The point is that a treaty right holder not only has a right or liberty  
"enjoyed by all other British subjects" but may enjoy special Treaty  
protection against interference with its exercise.760  
The fact the content of Mi'kmaq rights under the treaty to hunt and fish  
and trade was no greater than those enjoyed by other inhabitants does not,  
unless those rights were extinguished prior to April 17, 1982, detract from  
the higher protection offered to the Mi'kmaq people.761  
[916] In his expert report entitled "The Mi'kmaq in Nova Scotia and  
Newfoundland: Treaties and Rights in Historical Context", Dr. Patterson drew the  
following conclusions with respect to a Newfoundland treaty:  
Were the Newfoundland Mi'kmaq, then covered by a treaty with the  
British? The only treaties that might qualify were, in my interpretation,  
those made during the Seven Years' War, including the military treaties  
and the Halifax treaties. These treaties were, in general, comprehensive  
and enduring treaties governing the relationship between the Mi'kmaq and  
the British Crown. Yet the Military treaties were simply treaties of  
submission, strengthened by oaths of allegiance; there were no known  
promises related to hunting, trade or settlement or anything other than  
religion. The Halifax treaties, furthermore, were limited in their scope to  
the jurisdiction of Nova Scotia; if they conferred special rights to the  
Mi'kmaq, they could not exceed what was in the power of a Nova Scotia  
Governor to give".762  
[917] Dr. Patterson suggested that the Newfoundland Mi'kmaq, who are  
"derivative" or descended from the Cape Breton Mi'kmaq, may be covered by the  
military treaties of 1759, but asserts that those treaties confer no rights except  
liberty of religion. Dr. Patterson also suggested the Halifax Treaty might apply to  
760  
The same, para. 47.  
761  
The same, para. 48.  
762  
Patterson, Expert Report, p. 98.  
Page: 369  
the Newfoundland Mi'kmaq, but any rights conferred were confined to the  
jurisdiction of the colony of Nova Scotia.  
[918] The Defendants submit Dr. Patterson's conclusion in his expert report for the  
present case is at variance with his statements at trial in J.N. Jeddore v. Her  
Majesty:  
I explained that in my belief the Newfoundland Mi'kmaq were derivative  
of Cape Breton and I pointed out that there was a treaty governing the  
Mi'kmaq in Cape Breton. Even if Mi'kmaq in Newfoundland came from  
areas other of Nova Scotia or later New Brunswick, not Cape Breton, they  
would have been covered by the treaties since all bands that were known  
signed treaties in 1760 and 1761.763  
[919] Dr. Patterson in Jeddore, at p. 19, further stated:  
Well, the point that I would make in response to that is that the treaties  
that were signed between 1725 and 1779 were signed treaties between the  
British authorities representing the Crown and the Mi'kmaq. And the  
Mi'kmaq would comprehend all of the Mi'kmaq people of Atlantic Canada  
wherever they lived. It happens that some of those Mi'kmaq in due course  
dispersed to places other than Nova Scotia, but nonetheless, it is my  
understanding, it is my personal belief that these are treaties that represent  
the understanding between the Mi'kmaq people of Atlantic Canada and the  
Crown.764  
[920] Dr. Patterson in the present case explained that at the time of his testimony in  
Jeddore he was of the opinion, as he again asserts in this case, that the treaties  
conferred no special rights on the Mi'kmaq. Dr. Patterson also classified his expert  
opinion as to the applicability of treaties to the Mi'kmaq of Newfoundland as an  
historical opinion only which should not be tendered nor perceived as a legal  
opinion.  
I might stress at this point, perhaps parenthetically, that my examination  
analysis and answer to such questions is always meant to be simply  
historical. I do not presume to give a legal interpretation of these matters  
And later:  
... and it seems to me implied that they could practice their Catholicism.  
But whatever else, in my opinion, only, my historical opinion, whatever  
763  
Read into the record 13 July 2001, pp. 205-210.  
764  
Read into the record 13 July 2001, pp. 211-13.  
Page: 370  
else flows from the treaty, flows from the fact that the native people are  
British subjects and they have certain rights within the law as British  
subjects.  
[921] The Defendants argue Dr. Patterson has adopted an approach to treaty  
interpretation that has been specifically considered and specifically rejected by the  
Court in Marshall #1.  
[922] Dr. Patterson in his report and evidence presented "Principles of treaty  
interpretation" which govern his interpretation of the Mi'kmaq Treaties:  
1. Historians recognize that treaties between European colonizers and  
aboriginal peoples represent a distinctive kind of contractual agreement  
that differs from international treaties between imperial powers such as  
Britain and France.  
2. Treaty-making was a British practice through-out their North American  
colonies. While it took time to evolve, British practice by the eighteen  
century was to treat with Indians in order to reconcile them to British  
settlement, establish or preserve peace, open up trade, and detach them  
from imperial rivals such as France. There was no one way to make a  
treaty.  
3. Treaty making was a British idea and not embraced by the French. The  
British made the initiative not the Aboriginals. A treaty could be a formal  
signed agreement, made with some semblance of ceremony, or it could be  
simply a discussion whether it brought about an agreement or not.765  
[923] Dr. Patterson went on to summarize several other principles that guided his  
historical analysis:  
1. Treaties depend for their legitimacy on evidence that they were made  
by persons duly authorized to do so. For the British, such persons were  
governors, lieutenant governors, or their duly authorized subordinates; or  
they were British military officers operating outside of areas under  
civilian jurisdiction. In both cases, such officials acted under instruction  
from the crown. Equally, aboriginal communities were bound only by  
those treaties that they agreed to first-hand, through their chiefs or other  
duly authorized headmen.  
2. The contents of a treaty are to be found in the treaty document, the  
minutes of its negotiation, or in some other reliable historical form.  
765  
Patterson, Expert Report, pp. 26-28.  
Page: 371  
3. The contents of a treaty made with one aboriginal community cannot be  
assumed to apply to another without some clear empirical evidence that  
the parties intended this to be so.  
4. Special consideration must be given to the ways aboriginal people  
understood treaties, given that they generally lacked literacy, education, or  
experience equivalent to Europeans, and they rarely left behind a written  
record expressing their point of view. Contextual evidence may be  
essential here: evidence of the presence of qualified interpreters, evidence  
of previous native experience with Europeans, linguistic evidence to  
establish whether certain phrases or concepts were intelligible, and  
evidence of subsequent behavior may all shed light on questions of native  
understanding and acceptance of treaty terms.  
5. Where parties to a treaty made subsequent treaties with each other, the  
purpose of which was to renew or re-establish a relationship, the later  
treaty may be understood to supercede the earlier one.  
6. Where either or both parties behaved in a manner that indicated that  
they no longer adhered to their treaty agreement, the treaty was effectively  
terminated. (Especially where a treaty was meant to establish peace,  
subsequent acts of hostility or war terminated the treaty, requiring a new  
treaty if the parties wished to re-established a relationship.) In such cases,  
I hold that principle (2), as stated above, applies. That is, the new treaty  
consisted only of what the parties agreed to; for the content of their new  
agreement we must depend entirely on empirical evidence.766  
[924] The Defendants submit item 5 is of particular significance in that Dr.  
Patterson agreed that a treaty renewal serves to renew or re-establish a treaty  
relationship and supercedes the earlier one. As will be seen below, the Defendants  
assert Dr. Patterson failed to employ these principles of treaty interpretation in his  
analysis of the 1763 treaty renewal at Codroy, Newfoundland.  
[925] Dr. Patterson gave other evidence at trial which helps guide our interpretation  
of the 1760-1761 treaties. He testified that the written record is inadequate in  
conveying the aboriginal perspective in relation to Treaty interpretation and  
therefore the behavior of the Mi'kmaq must be considered:  
This is the kind of thing that historians have been struggling with in, I'd  
say, the last 30 years in order to compensate for the fact that there is a  
deficiency of written records from the Mi'kmaq perspective. The other  
thing is this, we don't always know what is in the heads of the Mi'kmaq,  
766  
Patterson, Expert Report, pp. 28-29.  
Page: 372  
but you can interpret behavior. If the Mi'kmaq do certain things one can  
assume that they're doing it for a reason, for a purpose. And it's essential, I  
think to be fair mind as broad minded as possible in determining what that  
was ... to assume Mi'kmaq or any Native people are rational people who  
understand their own best interest, who know what is good for them and  
to act accordingly. If they do something it's because they analyzed a  
problem and they believe this is what we have to do in order to protect our  
interest. And if one adopts that approach always open to an interpretation  
that gives full measure to the thought process and the rational approach of  
Native people. I think that one is being as fair as one can be, given this  
deficiency of a written record from a Mi'kmaq perspective.  
[926] Dr. Patterson recognized that "context" is also important in treaty  
interpretation. Especially important in understanding "context" is the relationship  
between the Mi'kmaq and the French.  
A ... It's an aspect of this study, too, to provide context for understanding  
the treaties. The treaties made by the Mi'kmaq were treaties with the  
British, but the Mi'kmaq had their own society, culture and way of  
governing themselves that predated the arrival of Europeans. We need to  
know something about that. It seems to me it's essential context to be fair  
and as fully responsible as possible to convey the Mi'kmaq perspective  
that we outline some of the salient features of Mi'kmaq society and  
culture, so I've attempted to do that, not only as background, but as  
essential context in understanding the role of the Mi'kmaq in treaty  
making. We need to know who were the Mi'kmaq people, how did they  
govern themselves, how did they live, where did they live, how many of  
them were there who could speak for a Mi'kmaq group, how did they  
define their political groups, who was competent to make a treaty, all of  
those things, I think, flow from and analysis of Mi'kmaq society and  
culture.  
Q: Would you care to summarize the effect or the changes in the Mi'kmaq  
as a result of their experience with the French?  
A: In summary, I would say this, by the time the British met the Mi'kmaq  
and began making treaties with them they were no longer living a  
traditional Mi'kmaq lifestyle. Their way of life had been transformed by  
their adoption of European technology, European food and clothing,  
French language, Catholic religion, and by years of military alliance with  
France. The second point is this, the British started making treaties with  
the Mi'kmaq in 1725, but the French remained on Cape Breton until 1758.  
During that period of time the British were trying to win the Mi'kmaq over  
to their side, or at least to neutralize them so that the British could  
populate Nova Scotia, and at the same time the French were doing  
everything in their power to hold the Mi'kmaq faithful and loyal to the  
King of France. They used religion to help them do it, they used French  
Page: 373  
priests to carry the message and to organize Native people. I do not accept  
the interpretation of some that the Mi'kmaq simply became the puppets of  
France, but I think that we missed altogether an extremely important point  
if we fail to understand that the Mi'kmaq learned of Europeans and  
European ways from the French and they were very, very reluctant to give  
up their ties with France. They clung to them even as the military reality  
of the fall of Louisbourg settled in after 1758. The Mi'kmaq still thought  
of themselves and referred to themselves, for years, as French Indians. So  
it was hard, the British were up against a very, very tough situation in  
winning the Mi'kmaq over by treaty and by other forms to support the  
British cause or to at least accept that the British were going to settle in  
Acadia and Nova Scotia and the surrounding area.  
[927] Dr. Patterson at trial indicated he felt that the Mi'kmaq were affected by the  
French relationship in terms of dependency and in terms of the Mi'kmaq "no longer  
living a traditional way of life." By traditional Dr. Patterson seemingly means  
pre-contact or early/initial contact practices and traditions. However, he agreed that  
despite the change the Mi'kmaq continued as a hunter-gatherer society,  
notwithstanding such disruptions as brought about by war.  
A: ... It's clear that we have the minister of Marine, who would be in  
charge of colonial affairs in France, writing to Father Gaulin in Acadia  
and mentioning that he is sending munitions, food and supplies for the use  
of the missionary in his work with the Native people of Acadia. He is  
sending them by way of Canada-or New France, which means that French  
sailing vessel will deliver them to Quebec City, perhaps, and then the  
governor at Quebec City will send them on to Acadia.  
And he says, in the part that I quoted, "The King's intention is for you to  
distribute them among the Sauvages for you to induce them to wage war  
against the garrison of Port Royal in order to prevent the latter from  
building new fortications and from forming any kind a durable  
settlement." And what we need to know in 1711, as of the time that this  
was written, is that Port Royal, the traditional headquarters of the French  
in Acadia, had fallen to New England forces the previous year and it was  
under New England control in 1711. So the plan of the French Crown is  
that Father Gaulin will use his influence with the Mi'kmaq to get them to  
participate in taking Port Royal back from the New Englanders and he is  
sending the supplies to make that possible. He goes on to say that the war  
will have to be waged by several small parties. That reflects an  
understanding of the way in which Natives can best be used in military  
operations. And it says "In such a way that there will always be three or  
four engaged at once during the summer and during the winter. For that  
reason, it is necessary for you to be sure to manage the distribution of the  
food and supplies with care so that they last you through the end of the  
winter, at which time you'll receive new assistance which will be more  
substantial and which will be followed by forces sufficient to retake Port  
Page: 374  
Royal. I am convinced that your zeal for the religion and your  
devotedness to His Majesty's service will lead to you to use every effort to  
keep the colonists and the Sauvages in the King's interest, and that you  
will induce them, in all sorts of ways to prevent the English from being  
able to establish themselves on a permanent basis."  
And I've read all of that again because I think it illustrates several of the  
important points that I'm trying to make in the report and that I think are  
valuable for the purposes of the Court. One of them is that the French,  
quite consciously, are attempting to influence the behaviour of the  
Mi'kmaq. Number 2, in order to do it the French ministry is conscious of  
the need to provide the Mi'kmaq with supplies because these are a hunting  
and gathering people who will not be hunting and gathering during the  
winter of 1711 and through the summer of 1711 into the winter of  
1711-12. So presumably they're going to need subsistence and that is  
being provided all the way from France. (10 July 2001)  
Q: So you're saying that as a result of the military activity, they had gotten  
away from the hunter gathering and had become as allies basically,  
relying upon the provisioning from the French in return for their military  
service? Is this it?  
A: That's correct. And as a matter of fact, my lord, I think I have footnoted  
a reference here to materials I've seen in the French sources from  
Louisbourg that show that in the period from 1756 to 1758, the two years  
immediately preceding the fall of Louisbourg, the French at Louisbourg  
were regularly, on a daily basis, provisioning 700 native people on the  
island of Cape Breton. That would have been not just warriors, not just  
men, but in some instances their families as well, and it means to me that  
the Mi'kmaq men had given up being traditional Mi'kmaq during that  
period. They were not hunting, fishing, gathering. They weren't supplying  
themselves.  
Moreover, when they come into Fort Louisbourg and talk to General  
Whitmore afterwards, they say "we need provisions. We're naked and  
starving." Well, you would think that native people, who are used to  
taking care of themselves, would never ever make such a statement.  
They'd go out and fish if they were hungry. They'd go out and hunt. But  
my point is their lifestyle had been so disrupted over these previous years  
that they'd become more or less dependent on these hand-outs.  
The key here though, the British understood this. The British didn't want  
the native people seeking out the French for hand-outs. Secondly, as in the  
case of General Whitmore, the British didn't really want the native people  
coming in and asking them for free regular provisions.  
So the British solution is this: "we prevent them from trading with the  
French, but we're going to ask them to trade, become self-reliant again, get  
back to your hunting and fishing and bring the fruits of your trade in and  
Page: 375  
trade them at our truckhouses. That way we keep you away from the  
French. That way we make you self-sufficient people. You develop your  
own self-sufficiency within the framework of the British economy as it's  
developing here in Nova Scotia." I don't think this is-this is my own  
historical gloss on this. I don't think this was saying "you have a special  
privilege here". I think what they're saying is "we want to make sure that  
you do not lapse into a renewed contact with the French and get us back in  
the situation we've been in the past." It's very much contingent on the  
circumstances of the time and the need to bring the Mi'kmaq into the  
British economy, as well as into the British social and political structure.  
[928] Moreover, Dr. Patterson highlighted the Mi'kmaq relationship with the  
French in terms of Mi'kmaq understanding of the concept of allegiance with the  
"King". Furthermore, the annual giving of presents by the French to the Mi'kmaq  
and the Mi'kmaq provision of military support to the French were highlighted as  
aspects of the French-Mi'kmaq relationship. In terms of treaty interpretation, he  
indicated that the Mi'kmaq may have perceived the treaties with the British as a  
transfer of allegiance and relationship from the French King to the British King.  
I think this reflects this gradual trend that the Crown was asking governors  
to develop, that is to make natives first good neighbours and then to make  
them good subjects... In 1725 and '26... the wording is that the Mi'kmaq  
will "acknowledge King George's jurisdiction and dominion over the  
territories of Nova Scotia and make our submission to his said Majesty in  
as ample a manner as we have formerly done to the most Christian King,"  
which is a reference to the King of France. ... To me, that indicates that the  
British are adopting a gradual approach.  
... the Mi'kmaq, at least as represented by their chief, Jeannot, the Chief of  
Cape Breton, that hereafter they intended to deal with the English as they  
had previously dealt with the French and that their friendship, allegiance  
and alliance does require that the British help them out by providing them  
with things they traditionally have relied on the French for.  
3.  
The Schomberg - Whitmore Treaty  
[929] Dr. Patterson outlined in evidence the circumstances leading up to the signing  
on November 20, 1759 of a what he characterized as a "military treaty" (the  
"Whitmore Treaty"), by Brigadier-General Edward Whitmore and Chief Jennot  
Peguidalouet at Louisbourg. Dr. Patterson characterized this Treaty as a submission,  
or oath of allegiance to the Crown. As such he contended the Whitmore Treaty  
conferred no benefits and pledges the Crown to no promise, excepting a possible  
re-confirmation of the freedom of religion pledged by Lieutenant Schomberg. It is  
Page: 376  
the Defendants' submission however that the Whitmore Treaty was indeed part of a  
treaty process and that as such affirmed (whether in the now-lost text or the  
negotiations leading up to signature) the promises embodied in Lt. Schomberg's  
letter to Abbé Maillard on October 26, 1759:  
I am commanded to assure you His Majesty that you will enjoy all your  
possessions your liberty, property with the free exercise of your religion  
as you can see by the declaration that I have the honour of sending you.767  
[930] Dr. Wicken discounted Dr. Patterson's contention that the Military and/or  
Whitmore Treaties conferred no rights to the Mi'kmaq other than freedom of  
religion:  
Well, we don't know what was in the head of Jeannot at this time period.  
But what I would suggest to you is that that treaty which was signed by  
Whitmore, regardless of how we might conceptualize it, it involves more  
than just an oath of allegiance, that it implicitly, in my mind, encompasses  
the words that are in the manifesto sent from Schomberg to Abbe Maillard  
and it also encompasses discussions about trade. In Jonathan Proctor's  
journal of Chief Jeannot's arrival at Louisbourg among those issues that  
they are going to discuss is to have liberty to trade.  
[931] Absent a copy of the Whitmore Treaty, Dr. Patterson agreed that it was a  
preliminary Treaty and part of the process that resulted in the 1761 Halifax Treaty:  
Q. I'd like to start off with a general question. Would you consider the  
military treaties separate or part of the 1760-1761 treaty making process?  
A. There's certainly a link, but on the other hand there is no link. A  
military treaty would have been the only treaty. For example, I know of  
no treaty between the Mi'kmaq of Prince Edward Island and Nova Scotia,  
but according to General Amherst, they did make their submission to  
General Whitmore at Louisbourg, and I assume there is a military treaty.  
...  
Q. Doctor, in that after the 1760 treaty process, the British were  
comfortable that all tribes enter treaties of peace and friendship of like  
tenor suggest.in light of your evidence that not all bands signed a formal  
treaty at Halifax, would the fact that the British were comfortable that all  
bands entered a peace and friendship treaty suggest that the difference  
between the military treaties and the formal treaties were not all that  
significant from the British perspective?  
767Wicken, Expert Report, pp. 20-21.  
Page: 377  
A.. ...the British believed that these treaties established peace, that native  
people acknowledged the sovereignty of the British Crown, and that the  
full import and meaning of the treaties was that the Mi'kmaq would be  
integrated into the Nova Scotia economy and they would be , like  
non-natives, subjects of the British crown, subject to the laws as other  
subjects of the British Crown. So if you accept that as the premise, then it  
wouldn't matter that some had signed treaties with military officers that  
were of the nature of oath of allegiance and others had signed treaties that  
were slightly more elaborate.  
...  
Ultimately, one would think that the senior British authority in the region  
would want to affirm all these treaty arrangements and that may be an  
explanation as to why we had Halifax treaties rather than a series of  
military.  
...  
There submission and their oaths of allegiance to various British Military  
officers is a demonstration to me that the Mi'kmaq were now prepared to  
cease the war. So the whole issue of war and peace in the future was  
settled.  
You might ask yourself why even bother with the treaties in Halifax, why  
even have them. Well, the British did have some objectives. They wanted  
to formalize it. They wanted to involve the government Halifax, they  
wanted ceremony. And perhaps, also, they wanted to ensure that there was  
no back slipping on the part of the Mi'kmaq.  
[932] When asked why the British (i.e. General Whitmore in 1759) would give the  
Mi'kmaq powder, shot and arms in the "context of French-English war in which the  
Mi'kmaq bore arms against the British" Dr. Patterson replied:  
...must indicate that he really doesn't think they're a real threat, number  
one, not a military threat. And number two, he recognizes this is the way  
they hunt, and he does want them to go out to be self-sufficient in their  
hunting.  
[933] The Defendants contend Dr. Patterson considered neither Lt. Schomberg's  
letter to Abbé Maillard nor Jonathan Proctor's diary in his reconstruction of the  
context of the Whitmore Treaty. The Defendants submit that Dr. Patterson has  
overlooked direct evidence that both liberty and trade were not only discussed with  
Whitmore and his emissary, but on a balance of probabilities were amongst the  
"articles... agreed on and Signed... in Form" between Whitmore and Chief Jeannot  
Peguidalouet. The Defendants submit Dr. Patterson has not considered the  
Page: 378  
economic and political context to determine if a Treaty right to hunt, gather and  
trade is implied in the Whitmore Treaty.  
[934] The Defendants suggest Dr. Patterson agreed with Dr. Wicken, when  
Patterson stated: "I think I'm safe in saying that the foundation of the Mi'kmaq  
treaty relationship with the British dates to 1759, '60 and '61". Dr. Wicken in his  
evidence said: "So what we're seeing here is actually a longer process of negotiation  
than just a one-time deal which was signed at Halifax on June 25th, 1761."  
[935] Given Dr. Wicken's testimony that trade was discussed at Louisbourg in  
1759, and given a British desire to make peace with the Mi'kmaq and facilitate their  
economic independence through traditional subsistence, and trade in items obtained  
through hunting and gathering, the Defendants submit that the "military treaties" of  
the Seven Years War in general, and the Whitmore Treaty in particular, are an  
essential underpinning of Treaty rights - as the Supreme Court found in Marshall  
#1.  
[936] The Defendants assert that the Whitmore Treaty in itself, based on the  
evidence, provides rights such as those found in Marshall #1 to exist in the 1761  
Treaties. In any event, say the Defendants, the evidence of both Dr. Wicken and Dr.  
Patterson suggests that the Military Treaties and the 1761 Treaties represent a  
process that resulted in the Treaty relationship between the Mi'kmaq and the British  
and, therefore, the two Treaties (i.e. the Whitmore Treaty and the Halifax Treaty)  
can be viewed as one and the same. Dr. Patterson felt that the Halifax Treaty  
provided the formal ceremony and involvement of government to the "preliminary"  
Military Treaties. Furthermore, he felt that there was no significant difference  
between the Military and Halifax Treaties. He makes this statement in the context of  
his opinion that neither the Military Treaty nor the Halifax Treaty conferred any  
rights on the Mi'kmaq. The Defendants argue, however, neither Dr. Patterson nor  
the evidence adduced at trial present any convincing reasons or argument that  
suggest that if the Halifax Treaty conferred rights upon the Mi'kmaq such rights  
would be different from or not included in the Military Treaty.  
[937] The Defendants submit a finding that the Whitmore Treaty 1759 in itself or as  
part of the 1759-1760-1761 Treaty process conferred Treaty rights to the Mi'kmaq  
(the same as the Treaty rights found by the court in Marshall #1) is supported by the  
evidence. Moreover, they say, such finding is in accordance with the principle of  
"just, broad and liberal construction" and the underlying duty of the Courts to  
Page: 379  
uphold the "honour of the Crown" as enunciated by the Supreme Court of Canada in  
Simon and Marshall #1.  
4.  
Hunting and Gathering as Religion  
[938] Alternatively, the Defendants submit that the freedom of religion, as  
conceded by the Province to be conferred by the Whitmore and Halifax Treaties, as  
practiced and understood by the Mi'kmaq in 1759, included more than Roman  
Catholicism in terms of religious doctrine or beliefs. The Defendants contend that  
the Mi'kmaq subsumed their worldview, customs and traditions into a unique blend  
of Roman Catholicism, a perspective which included customs of hunting, fishing  
and gathering.  
[939] Dr. Patterson in his expert report gives an account of Mi'kmaq culture and  
spiritualism at the time of first contact:  
Static descriptions of Mi'kmaq society and polity, however, fail to capture  
the historical change that both underwent in the first centuries after  
contact with Europeans. Mi'kmaq culture at the time of first contact was  
characterized by a spiritual attachment to the land and a belief that the  
spirit world animated the natural environment. Hunting practices were in  
harmony with this belief, and generally Mi'kmaq hunters, fishers, and  
gatherers would take only as much of a resource as they needed to satisfy  
their immediate needs. Myths and legends, passed on from generation to  
generation in the oral tradition, celebrated the spiritual qualities of certain  
animals (rabbits were a favorite) and emphasized their supposed magical  
powers. Variations of such stories could be found from one Mi'Kmaq  
community to another, and early observers remarked on the importance of  
story-telling at feasts and other occasions when those of one village might  
meet another. The creation story, fashioned around the exploits of the  
hero-figure Glooscap, could be found in various family versions  
throughout Mi'kmaq society. The language, stories, and beliefs of the  
Mi'kmaq are what defined them as a people, although they also shared a  
technical knowledge based on the use of stone and a limited use of copper  
metal, and common techniques for building shelters, hunting fishing tools,  
and transportation devices such as canoes and snow-shoes.768  
[940] Dr. Patterson agreed that the religion of the Mi'kmaq in the 1700s included a  
blend of pre-contact beliefs and Roman Catholicism. He testified:  
768  
Patterson, Expert Report, pp. 6-7.  
Page: 380  
I thinks its fair to say that the Mi'kmaq managed to blend elements of their  
traditional religious beliefs with the European religious beliefs and that  
their conversion to Christianity was never, perhaps, as complete as the  
missionaries hoped, at least in the colonial period.  
[941] Historically, observers of Mi'kmaq religious practices in Newfoundland  
emphasize not only Roman Catholicism in village life, but further that traditional  
practices and "superstitions" were most in evidence on the country. As W.E.  
Cormack wrote in 1822:  
They are Roman Catholics, but their religious ceremonies, of which they  
are observant, consist of a combination of those of that church and their  
own primitive ceremonies, blended together, to suit their convenience and  
tastes.769  
[942] Elders at trial, while affirming contemporary Mi'kmaq adherence to Roman  
Catholicism, also spoke about their beliefs in animal and natural spirits and  
"superstitions," suggesting that a pre-contact world-view still coloured Mi'kmaq  
Roman Catholicism.  
[943] A more detailed account of the religious beliefs of the Mi'kmaq is given by  
Wallis and Wallis. They indicate that the religion of the Mi'kmaq in 1750s (as  
recounted by French missionaries) was a blend of prior religious beliefs and Roman  
Catholicism. Furthermore, this blend involved a strong connection with land, its  
resources and hunter-gatherer activity:  
A young medicine man told Father Biard that when the people were in  
great need "he put on his sacred robe and turning towards the east said, ...  
Our sun or God give us something to eat that after that they went hunting  
cheerfully with good luck".  
Abbe Maillard saw or heard about a great deal more. Micmac religion  
observed in the mid-eighteen century was as general or vague as noted  
earlier: Manitoo was an indeterminate being or source of power ...  
Sun worship continued, and in aid of war was sought by sacrifice and by  
invocation. More rarely hunters and night travelers besought help from the  
moon. In 1755 we find set down in words and concepts these petitions.  
769  
William E. Cormack, Narrative of a Journey across the Island of Newfoundland in 1822, p. 71 [CD  
899].  
Page: 381  
Micmac metaphor and allegory "in which even their conservation abounds  
" appealed to Maillard.770  
[944] Wallis and Wallis also speak about the importance of gatherings and feasts to  
the Mi'kmaq for religious reasons such as, marriage, funerals, and (later) St. Anne's  
Day celebrations:  
A century and a half latter, Abbe Maillard writing from "Micmaki  
Country", March 27, 1755, viewed these still popular feasts with  
ambivalence. That part of him which considered it his priestly duty to spur  
the savages to "make a copious chase" so that furs would pay the Micmac  
debt to French traders, deplored the waste of time, meat and poultry. But  
his weakness for Indian oratory has given us a detailed account of the  
speeches following a friendly feast of undercooked dog (de-fleaed) and  
hot seal grease.771  
[945] Dr. Patterson spoke about the dual role of French missionaries using religion  
and supplies in spurring the Mi'kmaq to assume a military role. The role of  
missionaries in their "zeal for religion" and devotedness to the French King were  
combined in what Dr. Patterson called a "natural kind of confluence."  
[946] In the Supreme Court's decision in Sioui,772 the Murray Treaty of 1760 which  
stated the Hurons will be allowed the "free exercise of their religion and customs"  
was held to confer a right to exercise the customs (including hunting and gathering)  
and rites of the Huron in the area in question. In the case of the Mi'kmaq and the  
Whitmore Treaty of 1759, the Defendants assert that the Treaty conferred more than  
the right of religious practice. But they also assert that the religion of the Mi'kmaq  
in the context of Mi'kmaq religious beliefs and practice in the mid-1700's included  
customs and beliefs relating to land and utilization of resources intertwined with  
introduced Christianity.  
5.  
Mi’kmaq in Newfoundland before 1761  
770  
771  
772  
Wallis & Wallis, The Micmac Indians of Eastern Canada (1955), p. 143 [ED7].  
The same, p. 179.  
R. v. Sioui, (1990), 70 D.L.R. (4th) 427 (S.C.C.), p. 157.  
Page: 382  
[947] The Defendants submit it is clear from the evidence that the Cape Breton  
Mi'kmaq frequented the southern and western coasts of Newfoundland prior to the  
signing of the 1759 and 1761 treaties.  
[948] Expert witnesses agreed that the Mi'kmaq were disbursed in groups or Bands;  
that one such group occupied what is now Cape Breton, and that the Mi'kmaq  
adapted to European type shallops soon after initial contact and were able to travel  
by sea. The experts did not dispute that the Mi'kmaq from Cape Breton visited  
Newfoundland in the early 1700's and thereafter.  
[949] The Defendants submit that Mi'kmaq use of Newfoundland, prior to the treaty  
process of 1759-1761, was not entirely or even primarily related to French military  
activity. They deny the motivation for the Mi'kmaq presence to avail of a French  
Roman Catholic religious presence in Newfoundland, noting that between 1714 and  
1758 that was readily available in Cape Breton. They say, in any event, whatever  
the motivation, the presence was there and involved extraction of resources in  
Newfoundland pursuant to hunter-gatherer customs and traditions.  
[950] The Defendants argue Crown witnesses interpreted gaps in the written record  
as indicative of Mi'kmaq absence from Newfoundland but did not apply the same  
standard to inferences regarding European presence.  
[951] The Defendants submit the same level of presence or land use for the purpose  
of aboriginal rights should apply to treaty rights. They note in Delgamuukw, the  
Court determined that for aboriginal title, which is a greater right, occupation need  
not be demonstrated to be continuous; in Adams, the Court found that Mohawk use  
of the land during war and other times was sufficient to ground aboriginal rights in  
that during times of war warriors would subsist by fishing in the area in question; in  
Sioui, the Court recognized the Huron were not indigenous to the area and were  
brought into the area by French Jesuits in 1650 and that their presence was  
relatively recent.  
[952] Dr. Patterson argues that the 1759-1761 treaty process had a territorial aspect  
in that the Governor of Nova Scotia's jurisdiction included Nova Scotia only, and  
further, that the British knew the territory of the various Mi'kmaq Bands. Dr.  
Patterson stated:  
Page: 383  
Therefore, if there are any rights conveyed by any of the treaties, and I am  
not answering the question, I am just saying "if", it appears to me that the  
intent of the British was that those treaties should be applied within the  
range of territory that those native people inhabited. Given that fact, I  
would expect that the Cape Breton Mi'kmaq who made several treaties, or  
at least three, with the British, were making it clear to the British that they  
were normally resident of Cape Breton Island.. And it appears to me that  
any promises that the British made to the Mi'kmaq, if they had  
implications that related, say to resource extraction or the like, would  
relate directly to the territory that was understood to be Cape Breton  
Territory.  
[953] However, notwithstanding Dr. Patterson's statement above, he did concede in  
cross-examination that the treaty process (which is to say discussions, negotiations  
and final text) did not address the limits of the specific territory of each Band:  
Q: I guess, in terms of territory related to the Peace and Friendship  
treaties, is it fair to say that although chiefs were identified by area, Cape  
Breton chief, Shubenacadie chief, etcetera, that the specific territory of  
each band wasn't specifically delineated or detailed in any way during the  
treaty process?  
A: I think that's correct to say. I think it's also though important for us to  
understand that the British, by 1760, had come to understand that the  
Mi'kmaq were organized in communities that had territories and that they  
would exploit the resources or continue to live in their respective  
territories.  
[954] The Defendants submit the evidence does not support the assertion that the  
British knew with precision the entire territory frequented by the Mi'kmaq. The  
British may have associated Chief Jeannot's Band with Cape Breton Island, say the  
Defendants, but the evidence does not support Dr. Patterson's assertion that the  
Band knew all the territory of the Mi'kmaq, and maintained that such territory  
extended only to Cape Breton. The Defendants note Colonial Frye in 1760 was  
surprised to learn that many more Bands were left to sign peace treaties and ask: If  
the British officials were not aware of the number of Bands, how could they be  
aware of the territory they frequented?773  
[955] The Defendants note the treaties of 1769 and 1761 are silent in terms of  
territorial scope. However, we see that in terms of the promise on the part of the  
773  
Col. Joseph Frye to Gov. Lawrence (March 7, 1760) [CD 1120]  
Page: 384  
Mi'kmaq not to molest British subjects they agree not to molest British subjects in  
Nova Scotia "or elsewhere":  
And I do promise for myself and my Tribe that I nor they shall not molest  
any of His Majesty's Subjects or their Dependants in their Settlements  
already made or to be hereafter made, or in carrying on their Commerce,  
or in any thing whatever within this the Province of His said Majesty, or  
elsewhere.  
[956] On the jurisdiction of the Nova Scotia Governor, the Defendants submit the  
evidence illustrates that the boundary of Nova Scotia was evolving and the  
Governor of Nova Scotia did treat with aboriginals outside Nova Scotia, noting Dr.  
Patterson’s testimony:  
Under the circumstances, the governor of Nova Scotia did have some  
responsibility for the Mi'kmaq in Nova Scotia and in the immediate  
vicinity. The special relationship of Cape Breton to Nova Scotia, I think is  
a factor. It's a territory that had been acquired from France, it was under  
military governance, but in this instance a governor in Nova Scotia was  
extending his arm to the Mi'kmaq who lived there and providing for them  
a trading relationship that took place in Nova Scotia.  
[957] On the application of treaty rights to Newfoundland, the Defendants note Dr.  
Wicken stated: "While British colonial officials later insisted that any presents  
which were offered to Chief Jeannot be done through the auspices of the  
government of Nova Scotia, for Chief Jeannot and his people such jurisdictional  
niceties held little meaning"774. Expert witnesses for the Crown agreed that the  
Mi'kmaq at the time of the Treaties would have no appreciation of British Colonial  
law or constitutional framework. Dr. Patterson testified: "I'm also realistic enough  
to know that probably most of the of the non-aboriginal people in Nova Scotia  
didn't understand, in any depth at all, the nature of law and the finer points of  
British constitutional practice". And Dr. Janzen testified with respect to the treaty  
signed at Codroy in 1763:  
Q: ... is there anything in your research would suggest that the Mi'kmaq  
would be, in any way, familiar with the jurisdictional issues or wranglings  
that came into play or that -  
A: No, I don't think that they would be. I think that they recognize that  
they were dealing with a representative of the Crown, an officer. That is  
774  
Wicken, Expert Report, p. 31.  
Page: 385  
what they had done in Cape Breton Island when they dealt with the  
military authorities there, and it was perfectly consistent with their past  
experience to assume that they might be able to have the same kind of  
relationship with this naval officer.  
[958] The Mi'kmaq entered into Peace and Friendship treaties with the British  
Crown, say the Defendants, not with the Governor of Nova Scotia or the Nova  
Scotia colony in itself. Dr. Patterson agreed that Mi'kmaq familiarity with the  
concept of allegiance and alliance, gained through the French experience, helped in  
the peace treaty process. The Defendants submit the concept of the Royal  
personification of an alliance, when considered in the context of the Mi'kmaq  
experience with the French in Newfoundland, allows a reasonable inference that the  
Cape Breton Mi'kmaq would expect the same Treaty relationship they had with the  
British in Cape Breton or Nova Scotia would apply to Newfoundland.  
[959] Prior to the arrival of the British in what are now the Maritime Provinces,  
Mi'kmaq relations with the French had not been characterized by a series of written  
treaties, argue the Defendants, but rather by "give-and-take" and "reciprocal  
agreement." The Mi'kmaq provided the French with military support and a general  
allegiance to the French King and cause, and the French provided the Mi'kmaq with  
annual gifts, and European trade goods.  
[960] Experts called by both parties emphasized the examination of political and  
economic context as a principle of treaty interpretation. The Defendants submit that  
both the previous Mi'kmaq relationship with the French and the sparse opportunity  
the Mi'kmaq had to observe the British colonial constitution in practice are  
appropriate contexts to consider when approaching the question of the territorial  
scope of the treaties. The Defendants argue it is reasonable to infer an expectation  
on the part of Chief Jeannot Peguidalouet that the treaties and/or negotiations he  
entered into at Merigomish, then Cape Breton, then Halifax, then Codroy, applied in  
Newfoundland.  
[961] The Defendants note each of Chief Jeannot's treaty dealings were conducted  
under colonial constitutions, administrations or hierarchies that were quite diverse,  
and in circumstances which would not have contributed to a full Mi'kmaq  
understanding of the territorial boundaries of British colonies, namely:  
1. At Merigomish 1759 - The British are represented by a Lieutenant, a  
delegate of the military governor of what had been until recently a French  
Page: 386  
colony, who has been despatched to treat with Mi'kmaq on territory which  
is not a part of that former French colony, but rather a part of the colony  
of Nova Scotia.  
2. At Louisbourg 1759 - The British representative is military governor over the  
former French colony (Cape Breton).  
3. At Halifax 1761 - The British representative is the Lieutenant-Governor  
of Nova Scotia, which colony does not actually include Cape Breton until  
1763.  
4. At Codroy 1763 - The British representative is the captain of a naval  
vessel and surrogate, who personifies the first manifestation of the British  
colony of Newfoundland on a coast where the Mi'kmaq had been active  
throughout living memory, in the Defendant’s view.  
[962] Dr. Patterson contended that any rights stemming from the peace treaties  
could not extend beyond the jurisdiction of the Nova Scotian Governor. In 1761 that  
jurisdiction did not extend to Cape Breton, in that Cape Breton was not formally  
under the authority of Nova Scotia until 1763. The Defendants argue that in the  
immediate post-war era, the British would not be overly concerned with such  
jurisdictional issues, their overriding interest being peace and expansion of their  
presence in North America. Moreover, trade with natives was a common goal  
among British and French colonies. Finally, the situation with respect to  
Newfoundland and Cape Breton, in terms of not being under the Nova Scotia  
Governor's authority, was not an immediate concern in that both Newfoundland (or  
at least its southwest coast) and Cape Breton had no regular civil authority with  
whom to contend. It is submitted that precedent suggests that the issue the Governor  
of Nova Scotia's authority to enter into treaties with Chief Jeannot giving his Band  
rights outside the peninsular Nova Scotia does not invalidate such a Treaty. In  
Sioui,775 the Defendants note the Supreme Court stated:  
In short, even apart from my conclusion with respect to Murray's actual  
authority to sign a treaty, I am of the view that the Hurons could  
reasonably assume that, as a general, Murray was giving them safe  
conduct to return to Lorette, and that as Governor of the Quebec district,  
he was signing a treaty guaranteeing the Hurons free exercise of their  
religion, customs and trade with the English. In either case no problems  
concerning Murray's capacity would invalidate the treaty, if there was one.  
775  
R. v. Sioui, note 769 above, p. 440.  
Page: 387  
[963] The Defendants rely upon the Supreme Court's guidance on what constitutes  
territory in the Sioui case, in determining the territorial scope of the Treaties  
affecting the Cape Breton Mi'kmaq:  
The treaty gives the Hurons the freedom to carry on their customs and  
their religion. No mention is made in the treaty itself of the territory over  
which these rights may be exercised. There is also no indication that the  
territory of what is now Jaques-Cartier Park was contemplated. However,  
for a freedom to have real value and meaning, it must be possible to  
exercise it somewhere. That does not mean, despite the importance of the  
rights concerned, that the Indians can exercise it anywhere.  
...  
No one argued that the area between the Saguenay and the St. Maurice  
was land over which there was aboriginal title in favor of the Hurons. In  
fact, a group of about 300 people had been brought into the area around  
Quebec by the Jesuits in 1650... and its relatively recent presence in the  
Lorrette area suggests that the Hurons did not have historical possession  
of these lands.  
...  
Accordingly, I conclude that in view of the absence of any express  
mention of the territorial scope of the treaty, it has to be assumed that the  
parties to the treaty of September 5 intended to reconcile the Hurons' need  
to protect the exercise of their customs and the desire of the British  
conquerors to expand. Protecting the exercise of their customs in all parts  
of the territory frequented when it is not incompatible with its occupancy  
is in my opinion the most reasonable way of reconciling the competing  
interests.776  
[964] In Marshall #2,777 the Supreme Court of Canada determined that rights  
created by the Peace Treaties of 1760-1761 were local in nature and "limited to the  
area traditionally used" by the local community. The Defendants argue the Court's  
reasoning in Sioui suggests that "area traditionally used" includes areas used by the  
aboriginal group for hunting and gathering activity prior to the signing of the  
Treaty. Furthermore, say the Defendants, the degree or level of use of the area, as  
previously stated, must accord with the Court's principles for aboriginal and Treaty  
rights as enunciated in Sioui and Adams. If "traditionally used" is "pre-contact use"  
as suggested by Dr. Patterson, a claimant will have an additional burden in adducing  
evidence of the pre-contact practice of the aboriginal society to which he or she  
776  
The same, pp. 459-60, 462, 463.  
777  
R. v. Marshall 919990, 179 D.L.R. (4th) 193 (S.C.C.) [Marshall #2].  
Page: 388  
belongs. The Defendants say that suggestion founders on the Supreme Court's  
rejection of the "frozen rights" approach in Marshall #1:  
53. ... It was established in Simon at p. 402, that treaty provisions should  
be interpreted ‘in a flexible way that is sensitive to the evolution of  
changes in normal practice,’ and Sundown, supra at para. 32, confirms  
that courts should not use a ‘frozen in time’ approach to treaty rights.778  
[965] The Defendants assert that the territorial scope of the 1759-1761 Peace  
Treaties must be interpreted in consideration of the Mi'kmaq communities' way of  
life, their concerns and perspectives, citing Simon and Badger.  
[966] On the Cape Breton Mi'kmaq's mode of life or settlement patterns, the  
Defendants note Curran, P.C.J. in Marshall #3 (the Marshall logging case):  
The Mi'kmaq did not have permanent homes or permanent settlements.  
They moved from time to time during the year and did not necessarily  
return to the same places each year. Where they went and where they  
stayed depended on the availability of resources ... (para 11).  
The Mi'kmaq picture in Cape Breton at that time is not clear. At times in  
the previous century they had apparently left the island altogether because  
there was no moose. When the French missionaries conducted census in  
1708, 1722 and 1735, there were said to be between about 100 and 200  
Cape Breton Mi'kmaq, but it is not clear where they were living. By the  
mid-1700s some Cape Breton Mi'kmaq had moved temporarily or  
permanently to Newfoundland (para. 133).779  
[967] The Defendants submit that the test required for determining territory  
pursuant to a treaty right involves use of land and resources to a degree similar to  
that required for aboriginal rights. They argue, however, that the relevant time is  
that before the treaty-making process. They say it is clear Newfoundland was used  
prior to and during the treaty process, for hunting, fishing and trapping activities.  
Moreover, contend the Defendants, evidence of Cape Breton land use and  
settlement patterns, as discussed in Marshall #3, confirms that Cape Breton  
Mi'kmaq moved around, and that Newfoundland was part of the of the territory used  
and therefore part of the territory covered by the peace treaties of 1759-61.  
778  
R. v. Marshall (1999), 177 D.L.R. (4th) 513 (S.C.C.) [Marshall #1].  
779  
R. v. Marshall, [2001] N.S.J. No. 97, paras. 11 and 133, upheld on appeal, [2002] N.S.J. No. 98  
(N.S.S.C.) [Marshall #3].  
Page: 389  
6.  
The "Lark Treaty"  
[968] In September of 1763, Captain Samuel Thompson of the Royal Navy, on his  
vessel, Lark, off Codroy, Newfoundland, met two Mi'kmaq chiefs:780  
Jeanot Piquid Oulat and Bernard, Chiefs of the Mickmack Indians of Cape  
Breton, being onboard His Majestys Ship Lark under my Command (when  
off the island of Codroy) in September last to renew a Treaty of Peace  
with his Majesty (a Copy whereof I have already sent you)... .  
[969] No copy of the treaty mentioned by Captain Thompson has been found. A  
letter of Newfoundland Governor Thomas Graves suggests that the renewal was of  
the 1759 "Whitmore Treaty"781, a copy of which is also missing.  
[970] Of the parties to the Lark Treaty, one of the Cape Breton chiefs, Jeannot, was  
a Mi'kmaq long recognized as a leader of his people in war and peace. Captain  
Thompson, as captain of the Lark, was the highest-ranking military official to have  
visited western Newfoundland since 1734. He was also, according to the custom of  
the seasonal British government of Newfoundland, accorded a civil role,  
commissioned a Justice of the Peace for the season, and the Governor's Surrogate.782  
[971] There is no indication in contemporary documents as to the number of  
Mi'kmaq in company with the two chiefs in 1763. Yet the numbers identified as  
travelling to Newfoundland in the 1740s (see paragraph 128, above) suggest 30-40  
people in a Band.783 A report in 1765, that 130 Mi’kmaq had made the journey  
from Cape Breton to Newfoundland indicates a substantial number of Cape Breton  
Mi'kmaq made seasonal journeys to Newfoundland.784  
780  
Capt. Samuel Thompson, “Report to Admiralty” (1763) [CD 504]; Capt. Samuel Thompson to Board of  
Trade (1764) [CD 550]; Patterson, Expert Report, pp. 74-75; Wicken Expert Report, pp. 30-31.  
781  
Wicken, Expert Report, p. 30; Patterson, Expert Report, p. 77; Thomas Graves to Philip Stevens (1763)  
[CD 523].  
782  
Wicken, Expert Report, pp. 5-9; L.A. Anspach, A History of the Island of Newfoundland (1819) [CD  
891, pp. 142, 181; “Surrogate Commission, 1765" [CD 603].  
783  
1746: four parties in total, 12 identified as making up one party [CD 388]; 1748: 40 individuals [CD  
914]; 1749: 27 individuals {CD 439].  
784  
Note 127 above.  
Page: 390  
[972] Writing in 1764, Governor Hugh Palliser expressed his view the Indians  
encountered at Codroy in 1763 were the same as those who had, prior to the late  
war, frequented Newfoundland (see para. 131 above).785 Circumstances further  
suggest that Captain Thompson was aware of previous Mi'kmaq presence in  
Newfoundland as was, of course, Chief Jeannot, say the Defendants.  
[973] The Defendants submit a further indication that the Lark treaty renewal was  
imbued with meaning by both parties was Captain Thompson's interjection on  
behalf of the English settlers at Codroy when Mi'kmaq had "... greatly intimidated...  
but on my haveing an interview with the Indian chiefs, their fears somewhat abated  
and part of them talked of Furring dureing the winter."786 The Defendants note Chief  
Jeannot also requested presents, including muskets, powder and shot, which  
Thompson promised to provide for the next season. The Defendants contend the  
context of the 1763 treaty suggests that each party sought assurance from the other  
that there would be no interference in the economies practiced by English and  
Mi'kmaq in Newfoundland and further that treaty arrangements previously  
negotiated by Chief Jeannot did indeed apply to Newfoundland.  
[974] Central to the contrast between the expert opinions of Dr. Patterson and Dr.  
Wicken with respect to treaty interpretation is the degree to which each saw the  
treaty-making process of 1759-1763 as reflecting a negotiation of terms between the  
Mi'kmaq and the British. Dr. Patterson saw the treaty relationship as one initiated by  
the British, reflecting British policy intent. He generally characterized Mi'kmaq  
input into the treaties as being that of submission to the British Crown. In Dr.  
Patterson's interpretation, the only rights and privileges conferred on the Mi'kmaq  
were those of British subjects:  
These treaties were, in general, comprehensive and enduring treaties  
governing the relationship between the Mi'kmaq and the British Crown.  
Yet the military treaties were simply treaties of submission, strengthened  
by oaths of allegiance; there were no known reciprocal promises to the  
Mi'kmaq related to hunting, trade, settlement or anything other than  
perhaps liberty of religion.  
785  
Governor Hugh Palliser: despatch (1764) [CD 569], p. 2 (verso).  
786  
Captain Samuel Thompson: report to Admiralty (1763) [CD 504]; Samuel Thompson to Philip Stevens  
(1764) [CD 546].  
Page: 391  
For their part, the Cape Breton Mi'kmaq acknowledged and formally  
accepted the British triumph in several ways. They accepted articles of  
capitulation from a British military officer. They followed up by making a  
treaty with General Whitmore at Louisbourg, in the form of an oath of  
allegiance to the British Crown. Finally, they made a treaty at Halifax in  
1761, wherein they affirmed their peaceful intentions and established with  
a colony of Nova Scotia that was similar to that established by other  
Mi'kmaq communities in Nova Scotia.787  
[975] Dr. Wicken's interpretation emphasized process, negotiation, and the interest  
of both parties in the Mi'kmaq returning to their traditional practices after the  
disruptions of wartime:  
Q: So what do you see as the significance of this particular clause called  
the "truckhouse clause," in the overall scheme of things? Does this - from  
your point of view, is this particularly important in the treaty?  
A: Absolutely. This is a central component of this new treaty, that is that  
absolutely fundamental to the British is that there be a commercial  
relationship. Absolutely fundamental to the British is that the Mi'kmaq  
will continue to live in their communities where they have settled and  
lived before this time, and for the British, this is absolutely essential  
because they do not have the where with all, in order to provide for the  
subsidy of the Mi'kmaq economy.  
[976] The Defendants submit that, since the Whitmore Treaty as part of the 1759,  
1760, and 1761 treaty process or by itself confers on the Mi'kmaq the same rights as  
provided in the 1761 Halifax Treaty, the Codroy renewal therefore, as part of the  
treaty process or in itself, confers the same rights onto the Mi'kmaq. Dr. Wicken  
viewed the Codroy renewal as evidence the Mi'kmaq-British Treaty relationship  
extended to Newfoundland.788  
[977] Dr. Patterson viewed the Codroy renewal as nothing more than a renewal of  
allegiance by the Mi'kmaq to the British. Furthermore, he interpreted the exchanges  
between Palliser and Nova Scotia officials as evidence the Mi'kmaq were not  
allowed to apply for or demand foodstuffs outside Nova Scotia. He also interpreted  
the interchange between Graves and Wilmot as indicating the Mi'kmaq were under  
787  
Patterson, Expert Report, pp. 98-99.  
788  
Wicken, Expert Report, pp. 31-32.  
Page: 392  
British law in that no one mentioned the Mi'kmaq have a treaty right to hunt in  
Newfoundland.  
[978] Dr. Patterson in cross-examination agreed that the issue in the interchange  
between Wilmot and Graves was not whether the Mi'kmaq could as before apply for  
European items while in Newfoundland but which jurisdiction should provide the  
items requested. At the end of the day, the Nova Scotia authorities agreed to provide  
the items to the Cape Breton Mi'kmaq in Newfoundland.  
[979] The Defendants submit the fact that there was no specific mention of a treaty  
right to hunt, fish and trap in Newfoundland does not imply that no right existed.  
Dr. Patterson agreed that at the time in Nova Scotia, let alone Newfoundland, the  
historical record did not refer to activity of the Mi'kmaq under the term treaty rights.  
Yes, I agree with you, it doesn’t. And I think there’s a reason for it, I  
don’t think that it ever crossed anyone’s mind that there was a special  
treaty right that needed to be defined in that way.  
Dr. Patterson's opinion was that no special rights were conferred in the treaties  
beyond what were available to all British subjects. The Defendants note the Court  
in Marshall #1 held that the fact the treaties provide for rights which can be held by  
British citizens does not detract from the constitutional protection such rights enjoy.  
Moreover, in Côté,789 the Court held that lack of recognition of aboriginal rights by  
colonial regimes, does not extinguish such rights. The Defendants contend this  
shows that in Newfoundland if colonial authorities failed to recognize or  
characterize Mi'kmaq hunting, fishing, and trapping activity in the post-Treaty era  
as treaty rights or activities, that failure does not invalidate or extinguish the  
existence of such rights.  
[980] Dr. Patterson indicated that the Codroy renewal was the only known renewal  
of a military treaty. Furthermore, he stated that whenever there is a renewal of a  
treaty the renewal takes the place of the former treaty relationship. The Defendants  
submits that Dr. Patterson, despite his assertions about renewals and context being  
important, appeared to abandon his principles of treaty interpretation and made no  
attempt to place the Lark Treaty within the economic and political context of the  
789  
Note 468 above.  
Page: 393  
time, when he stated that the Lark Treaty of 1763 is merely a renewal of an oath of  
allegiance.  
[981] The Defendants say Dr. Patterson failed to consider the context of the Codroy  
treaty renewal and placed no significance on the concern the settlers at Codroy had  
with the Mi'kmaq, the Mi’kmaq desire to hunt, fish and trap in Newfoundland, and  
their request for hunter-gathering items from the British. Dr. Patterson accepted that  
settler concern was a context to consider in the treaty renewal, "one possible  
reasonable interpretation". But, without more documentary evidence, Dr. Patterson  
would not accept that as "cause and effect" context to the treaty renewal.  
[982] Dr. Patterson felt that the treaty at Codroy could have been renewed before  
the settler concern was indicated by Thompson. The Defendants note, however, a  
review of the relevant documentation presents reasonable evidence that the settler  
concern precipitated the treaty renewal, the Mi'kmaq having "... greatly intimidated  
the Settlers at Codroy, but on my haveing an interview with the Indian chiefs, their  
fears somewhat abated and part of them talked of Furring dureing the winter."790  
[983] The Defendants submit the Codroy treaty renewal is significant in that it  
reaffirms that the Mi'kmaq and British treaty relationship extended to  
Newfoundland and that the interests of both parties were not incompatible. The  
Defendants agree the mere act of renewing the peace treaty in Newfoundland in  
itself does not necessarily mean that the treaty applies to Newfoundland. They say,  
however, when one considers the context of the treaty renewal and applies the  
principles of interpretation as suggested by the courts and by expert witnesses, it  
becomes clear that the Codroy renewal further affirmed the Mi'kmaq-British treaty  
relationship applied in Newfoundland. Case law, in itself, say the Defendants,  
suggests that the treaty relationship will apply to the territory frequented by the  
aboriginal group and the Codroy renewal provides additional historical evidence of  
both parties actually applying the treaty relationship in the context of  
Newfoundland. In sum, submit the Defendants, the Codroy renewal has all the same  
economic and political context underpinning as the treaty signing in Cape Breton in  
1759 and Halifax in 1761. At Codroy there is a settler concern with Mi'kmaq  
presence, a known history of prior Mi'kmaq aggression in the area, and hence a  
need to reaffirm peace. There is also a Mi'kmaq desire to hunt, fish and trap in  
790  
Captain Samuel Thompson: report to Admiralty (1763) [CD 504]; Samuel Thompson to Philip Stevens  
(1764) [CD 546].  
Page: 394  
Newfoundland, there is a request for items that will allow the Mi'kmaq to pursue a  
hunter-gatherer economy, a British resolve to supply such items in order to facilitate  
the self-sufficiency of the Mi'kmaq, and, finally, there is a formal treaty signing by  
both parties. Subsequent actions of the British, and Mi'kmaq, in Newfoundland lend  
credence to the position that a treaty relationship between the parties extended to  
Newfoundland, say the Defendants. Although Governor Palliser attempted to expel  
the Mi'kmaq from Bay d'Espoir (and was for three years successful in this) in an  
over-zealous application of his commission to prevent trade with the French,  
contend the Defendants, they note his successors accepted Mi'kmaq hunting and  
trapping in Newfoundland.  
[984] Dr. Patterson agreed that the Peace and Friendship Treaties had the desired  
effect in Newfoundland, although in his opinion no rights were conferred, in that no  
further hostilities against the British in Newfoundland were perpetrated by the  
Mi'kmaq. The Defendants note that Mi'kmaq hostilities against the British during  
the French-British battle for dominion in North America, which in part precipitated  
the peace treaties, did manifest itself in Newfoundland on several occasions.  
Moreover, twelve months prior to the treaty renewal, in 1762, the former allies of  
the Mi'kmaq, the French, resumed hostilities against the British in Atlantic Canada  
with a raid on St. John's. At trial Dr. Patterson accepted that war and the prolonged  
conflict between the French and British represented an important context in treaty  
interpretation, since there was still a concern about potential hostilities.  
[985] The Defendants note the Mi'kmaq on their part continued to keep the peace  
and not interfere with British settlements in Newfoundland. They continued to  
pursue a traditional economy during the 1700s, 1800s and much of the 1900s.  
During the latter half of the 19th century, after Responsible Government was  
established in Newfoundland and Imperial and Colonial authorities sponsored  
exploration of the Newfoundland interior, Mi'kmaq traditional knowledge of  
Newfoundland geography and subsistence strategies were key to developments in  
exploration, cartography, tourism, and resource extraction, say the Defendants.  
[986] The Defendants note the Supreme Courts emphais on reconciliation. Thus, in  
Sioui, the Court stated:  
...I conclude that in view of the absence of any express mention of the  
territorial scope of the treaty, it has to be assumed that the parties to the  
treaty of September 5 intended to reconcile the Huron's need to protect the  
exercise of their custom and the desire of the British conquers to expand.  
Page: 395  
Protecting the exercise of the customs in all parts of the territory  
frequented when it is not incompatible with its occupancy is in my  
opinion the most reasonable way of reconciling the competing interests.791  
[987] The history of the Mi'kmaq and British in the post-treaty era suggests to the  
Defendants that the interests of both parties in Newfoundland were not  
incompatible. The Lark Treaty of 1763 and its surrounding circumstances represent  
one of the first accounts of Mi'kmaq-British interaction in Newfoundland during the  
1759 to 1761 period. In this instance the Defendants see a renewal of the Peace  
Treaty of 1759 setting the stage for Mi'kmaq-British interaction in Newfoundland.  
The Defendants submit the settlers at Codroy represented the first British settlement  
west of St. Pierre signaling British desire to make real its theoretical sovereignty  
over the former French sphere. From 1763 British settlement and interest in the  
southwest coast grew with no conflict or interruptions from the Mi'kmaq. For all  
intents and purposes, history has shown us that the treaty relationship in  
Newfoundland worked, say the Defendants.  
7.  
Miawpukek Mi'kmaq as a Modern Manifestation of the 1759,  
1760, and 1763 Treaty Signatories.  
[988] The Defendants note Dr. Patterson, while casting the Newfoundland Mi'kmaq  
as "derivative" of the Cape Breton Mi'kmaq, also offered an opinion that "the  
individual Mi'kmaq who moved to Newfoundland sort of severed their ties with the  
Band that was known as the Cape Breton Mi'kmaq". Yet, they point out, in his  
expert report he stated:  
Cape Breton was viewed by the Newfoundland Mi'kmaq as their  
homeland and their cultural life revolved around it ... Nova Scotia officials  
likewise recognized that the Mi'kmaq of Newfoundland had close ties  
with those on Cape Breton, and continued to regard the Newfoundland  
Mi'kmaq as part of the larger Mi'kmaq community of Nova Scotia.792  
[989] The Defendants note in Marshall #3, concerning present bands in Nova  
Scotia, Curran P.C.J. stated:  
Until about 40 years ago the Department of Indian Affairs considered all  
the Mi'kmaq of Nova Scotia as members of a single band. The federal  
791  
Note 769 above, p. 157.  
792  
Patterson, Expert Report, pp. 96-7.  
Page: 396  
government encouraged the Mi'kmaq of the province to come together in  
larger communities such as Eskasoni and Indian Brook. Over the last 40  
years the federal; government has divided the Mi'kmaq of Nova Scotia  
into several bands. It is not clear what relationship the current bands have  
to the local communities which signed the 1760-1761 treaties or those in  
existence when the British acquired sovreignty.793  
[990] The Defendants point out that in Simon, the Supreme Court indicated a direct  
genealogical link to the original signatories of a treaty is not required:  
The Micmac signatories were described as inhabiting the eastern coast of  
Nova Scotia. The appellant submitted at trial that he was a registered  
Indian under the Indian Act, and was an "adult member of the  
Shubenacadie-Indian Brook Band of Mi'kmaq Indians, living in the same  
area as the original Micmac tribe party to the Treaty of 1752.  
This evidence alone, in my view, is sufficient to prove the appellant's  
connection to the tribe originally covered by the treaty. True this evidence  
is not conclusive proof that the appellant is a direct descendant of Micmac  
Indians covered by the Treaty of 1752. It must, however, be sufficient, for  
otherwise no Micmac Indian would be able to establish decendency ... To  
impose an impossible burden of proof would, in effect, render nugatory  
any right to hunt that a present-day Shubenacadie Micmac Indian would  
otherwise be entitled to invoke based on this treaty.794  
[991] The Defendants contend that in implementing the Marshall #1 decision in  
Nova Scotia, Prince Edward Island, New Brunswick, and Quebec, the Government  
of Canada has offered some insight as to the accepted policy implications of the  
judicial confirmation of Mi'kmaq treaty rights in Canada and the scope of such  
treaties. The following comes from deliberations of the House of Commons  
Standing Committee on Fisheries and Oceans, April 3, 2001:  
Mr. John Cummins M.P.: Minister, the court has tied the benefits it  
allowed to the signing of treaties. My information is there was no treaty  
signed in P.E.I., there were no specific treaties signed with southern Nova  
Scotia natives, from Cape Sable to Annapolis, where St. Mary's Bay is  
located, and in fact, there were no specific treaties signed with Quebec  
natives. So how can you engage in discussions based on Marshall if in fact  
there were no treaties signed with natives in those areas?  
793  
Marshall #3, at para. 124.  
794  
Simon v. R. (1986), 24 D.L.R. (4th) 390 at 407 (S.C.C.).  
Page: 397  
Hon. Herb Dhaliwal M.P. (Minister of Fisheries and Ocean): They may  
not exist specifically, but the treaty that was signed was with the Mi'kmaq  
and the Maliseet people, and the people who are the beneficiaries of that  
are the ones directly linked to the original signatories. You could argue  
that, in your view, the Lennox Island Band are not direct beneficiaries of  
those treaties. I would beg to differ with your view.  
Mr. Cummins: Well, Minister-  
The Chair: Hold on, Mr. Cummins. Mr. Minister, have you finished?  
Hon. Mr. Dhaliwal: I don't agree with your view. In the view of the  
department and the government, they are the beneficiaries of the original  
signatories and linked to the original signatories of that treaty.  
Mr. Cummins: I think, Minister, you're turning yourself in and out to  
justify government policy, or to attribute government policy to the  
decision of the Supreme Court. Consider, if you will, the Miramichi  
natives. The Miramichi natives signed a 1760-61 treaty. My  
understanding is that they broke that peace treaty and sided with the  
Americans during the American revolution. They later signed a treaty in  
1779, but the Supreme Court does not discuss a relationship with the 1779  
treaties. It does with the 1760-61 treaties, which were broken by the  
Miramichi natives. Yet, again, you're entering into negotiations and  
claiming those negotiations are based on a requirement from Marshall.  
How can that be?  
The Chair: Mr. Minister.  
Hon. Mr. Dhaliwal: It can be because there was a treaty signed, called the  
peace and friendship treaty. You've come to the conclusion that was  
broken, but I certainly don't have any evidence that any treaty was broken.  
But the fact of the matter is, in 1760 and 1761-  
Mr. Cummins: There's historical evidence, Minister.  
The Chair: John, can you give the minister time to respond? You're just  
taking away from your own time.  
Hon. Mr. Dhaliwal: The fact of the matter is there's a treaty signed and the  
Supreme Court of Canada has recognized that treaty and has said under  
the Marshall decision that the Mi'kmaq and the Maliseet people have a  
right to fish and gather. I'm sure that evidence will have been looked at by  
the court. We have to follow the court ruling, and we're following the  
Marshall decision as stated by the Supreme Court.  
The Chair: Last question this round, Mr. Cummins.  
Page: 398  
Mr. Cummins: I'm not going to get into the next chunk right away, but let  
me just come back to what you've said. You're trying to suggest a linkage  
between the court and Marshall when it's convenient, and when it's not,  
you say it doesn't matter. You say "descendants" and that includes  
everybody. How are people to take some satisfaction that their affairs are  
being well handled when you're not prepared to take ownership of your  
policy, but want to blame it on the Supreme Court of Canada?  
The Chair: Mr. Minister.  
Hon. Mr. Dhaliwal: Well, Mr. Cummins, the Supreme Court ruling is the  
law of the land, and whether we want to or not, we have to abide by the  
law of the land. The Supreme Court clearly has recognized that treaty, and  
the first nations we have recognized are collective descendants of the  
original signatories of that treaty. That's the basis on which we've  
recognized them, and they're the ones who are the benefactors of that  
treaty. So the Supreme Court ruling is the law of the land. We all have to  
make sure we abide by it, and that's what we're recognizing-we're  
respecting the Marshall ruling.  
Ms. Suzanne Tremblay M.P.: Who determines the legitimacy of a  
community group that says it descends from the Mi'kmaq who were in  
Nova Scotia? Who determines that legitimacy?  
[English]  
The Chair: Mr. Minister.  
Hon. Mr. Herb Dhaliwal M.P.: That's a very good question. Right now  
we're dealing directly with the chiefs of each of the first nations, and  
certainly we rely on them to determine who is part of their collective first  
nation group. But there may be others who feel they're being left out. I  
think this is something we need to look at, because the native councils feel  
they should be beneficiaries of it. But they have to show a link with the  
collective group. Right now, however, we're dealing with the first nations,  
and it's up to them to determine who their collective groups represent. But  
there may be others who feel that they too should benefit. At some time in  
the future we need to determine that, but at this time we're looking at those  
groups that are the direct descendants and are the collective of the original  
signatories. (emphasis added)  
The Chair: Madam Tremblay.  
[Translation]  
Ms. Tremblay: That is not very clear. You meet with the chiefs who  
decide whether they are descendants or not. It is their decision. You say in  
your written statement that it applies to people in the Maritimes and the  
Gaspé Region. What do you do, for example, with the North Shore and  
Lower North Shore Montagnais?  
Page: 399  
[English]  
The Chair: Mr. Minister.  
Hon. Mr. Dhaliwal: Maybe I'll ask Jack. He can be more specific on that  
issue for you.  
The Chair: Mr. Stagg.  
Mr. Jack Stagg (Associate Deputy Minister, Department of Fisheries and  
Oceans): From the Supreme Court decision, the collectives or the  
communities we viewed as descendants from the original treaties in 1760  
and 1761 are primarily those communities we see as status Indian  
communities, mainly in Nova Scotia, New Brunswick, and four  
communities in Quebec. (emphasis added) We were told from a legal  
point of view, you don't have to be a status Indian person to be a  
beneficiary or a descendant from the original treaty signatories. There may  
be first nations people outside, or non-first nations people, or non-status  
people outside, who may be beneficiaries as well. But we're dealing  
primarily with the communities as collectives as treaty beneficiaries.  
Those communities are reasonably well defined. They're more than  
self-identified. In fact, in most cases status Indian people are registered in  
Ottawa, and the communities are reasonably well defined. The community  
members themselves know who the communities are. They know who the  
members of the communities are. And from the status Indian list we have  
here in Ottawa we know generally the size of those communities  
officially.  
[992] On May 15, 2001, before the same Standing Committee, the Deputy Minister  
of Fisheries and Oceans was directed by the Minister to further address the  
Government of Canada's position with respect to the applicability of Mi'kmaq  
Treaty rights to Prince Edward Island, stated:  
With regard to the treaties in P.E.I, the honorable member has raised the  
fact the Mi'kmaq in P.E.I did not sign a treaty. Clearly the documents that  
were signed with groups differ from modern day first nations. We have  
historical evidence that in fact some of the Mi'kmaq spent part of their  
time residing in Prince Edward Island during the period in which those  
agreements were signed. On that basis, of course, they are the modern  
manifestations of these individuals, these first nations, who signed at the  
time. As a result of that, our legal advice is that those who now reside in  
P.E.I., the Mi'kmaq, are in fact the modern descendants of those treaties.  
So while there isn't a specific treaty, there is that historical evidence, as is  
the case for the Mi'kmaq and Malecite in the Gaspe, who moved to that  
part of Canada following the signing of the treaties. So it is by that  
extension that we have provided first nations the right to fish under the  
Marshall decision.  
Page: 400  
[993] The Defendants submit the situation of the Mi'kmaq of Prince Edward Island  
and Quebec with respect to the treaties of 1759-61 is strikingly similar to that of the  
Newfoundland Mi'kmaq. Mi'kmaq Bands in these locales were not specifically  
parties to treaties in the period 1759-1761. They were not in law under the  
jurisdiction of the Governor of Nova Scotia during the 1760-1761 series of Peace  
and Friendship Treaties (and it should be noted that Cape Breton was not a part of  
the Colony and Province of Nova Scotia until annexed in 1763). The Defendants  
argue the major difference between the Mi'kmaq of Quebec and Prince Edward  
Island and those of Newfoundland with respect to the treaty-making process of the  
1760s is that there was in Newfoundland a specific treaty renewal. The honour and  
fiduciary duty of the Crown would be compromised, say the Defendants, if  
jurisdictional issues and divisions within British colonial and constitutional  
structure served to render invalid rights stemming from the Peace and Friendship  
Treaties. This is even more amplified, in the Defendants’ view, when one considers  
that from the Mi'kmaq perspective they were treating with an indivisible British  
Crown. The Defendants contend the Mi'kmaq had no appreciation of British law,  
government and constitutional structure - which they say were in any case at this  
point in Canadian history scarcely operational in the colonies.  
[994] The Defendants note Professor Brian Slattery, like other scholars working in  
fields such as anthropology, First Nations history, and aboriginal legal issues has  
advocated a doctrine of aboriginal rights rooted above all in "basic principles of  
justice." As Dr. Patterson put it in the case at bar: "I think there are times when you  
just have to find out what's workable in a given case and what seems fair". The  
Defendants submit that the Constitution of Canada, precedent, the historical record,  
the basic principles of fairness, the dignity of the Mi'kmaq, and the honour and duty  
of the Crown cry out in unison to support a finding that the Mi'kmaq of  
Newfoundland enjoy aboriginal and treaty rights similar to the modern applications  
of treaty rights to Mi'kmaq in Nova Scotia, Prince Edward Island, New Brunswick,  
and Quebec. They say the constitutional guarantee of aboriginal rights applies in  
Canada generally and the Island of Newfoundland is not exempt.  
VI. FINDINGS OF FACT, THE LAW AND ANALYSIS - TREATY  
RIGHTS  
1.  
Introduction  
Page: 401  
[995] As noted above, each Defendant claims to be the modern day beneficiary of  
four treaties:  
•
The 1725 treaty negotiated at Boston by Paul Mascarene, on behalf of  
Nova Scotia, and subsequently ratified at Annapolis Royal in 1726 by  
John Doucett, Lieutenant Governor of Annapolis, and seventy-seven  
Mi’kmaq, Maliseet and Passamaquoddy representatives.  
•
The 1752 treaty signed by Nova Scotia Governor Peregrine Thomas  
Hopson and Chief Jean Baptiste Cope, on behalf of the Shubenacadie  
Band of Mi’kmaq.  
•
•
The 1759 Schomberg - Whitmore treaty  
The treaty of June 25, 1761, signed at Belcher’s Farm in Halifax, by  
Chief Jeannot, on behalf of the Cape Breton Mi’kmaq Band, and  
Lieutenant-Governor Belcher and colonial officials, on behalf of Nova  
Scotia.  
[996] To properly address the Defendants’ claim there are a number of questions  
which must be answered with respect to each of the treaties relied upon. In logical  
sequence these are, as follows:  
1.  
2.  
3.  
4.  
Who were the parties to the treaty? On the assumption that the treaty is  
valid and subsisting, is each Defendant, by virtue of his membership in  
the Miawpukek Band, a modern-day beneficiary of the treaty?  
If the answer to 1 is in the affirmative, did the treaty remain  
unrepudiated by subsequent hostilities between the parties, so as to be  
valid and subsisting today?  
If the answers to both 1 and 2 are in the affirmative, what is the  
geographic scope of the treaty and, specifically, does it include the area  
in Newfoundland over which each Defendant asserts a treaty right?  
If the answers to 1, 2 and 3 are in the affirmative, what is the nature of  
the treaty right, and does it specifically include the right to hunt, fish  
Page: 402  
and trap for subsistence or to earn a moderate livelihood, as claimed by  
the Defendants?  
5.  
Finally, what effect, if any, does the treaty “renewal” by Captain  
Thompson on the Lark of Codroy, Newfoundland, in September 1763  
have on the June 25, 1761 treaty rights claimed by each Defendant?  
Before answering these questions, it is important to consider what the Supreme  
Court has established as principles of treaty interpretation.  
2.  
Principles of Treaty Interpretation  
[997] The onus of establishing the existence of a treaty right rests with the  
Defendants. McLachlin C.J.C. stated in Marshall #1:  
A claimant seeking to rely on a treaty right to defeat a charge of violating  
Canadian law must first establish a treaty right that protects, expressly or  
by inference, the activities in question ... Only then does the onus shift to  
the government to show that it has accommodated the right or that its  
limitations of the right are justified.795 [Emphasis in original.]  
[998] The approach to evidence in an aboriginal treaty case, while adhering to the  
general principles of treaty interpretation, must also adhere to the general standards  
of proof established by the Supreme Court of Canada in Mitchell796, where  
McLachlin C.J.C. stated:  
... [it should] be emphasized that a consciousness of the special nature of  
aboriginal claims does not negate the operation of general evidentiary  
principles. While evidence adduced in support of aboriginal claims must  
not be undervalued, neither should it be interpreted or weighed in a  
manner that fundamentally contravenes the principles of evidence law,  
which, as they relate to the valuing of evidence, are often synonymous  
with the ‘general principles of common sense’ ...  
[999] Though the comments of McLachlin C.J.C. were made in relation to  
aboriginal rights cases they apply also on the adjudication of treaty claims. The  
795  
R. v. Marshall (1999), 177 D.L.R. 513 (S.C.C.) [Marshall #1], para. 111.  
796  
Mitchell v. M.N.R., (2001), 199 D.L.R. (4th) 385 (S.C.C.), para. 38.  
Page: 403  
Supreme Court of Canada has also extended the Mitchell principles to apply to  
division of powers cases involving aboriginal groups.797  
[1000]  
The parties agree that aboriginal treaties constitute a unique type of  
agreement and attract special principles of interpretation. In Marshall #1,  
McLachlin C.J.C. (dissenting in result, but not on the applicable principles) restated  
the principles of treaty interpretation, as follows:  
1. Aboriginal treaties constitute a unique type of agreement and attract special  
principles of interpretation: R. v. Sundown, [1999] 1 S.C.R 393, 170 D.L.R. (4th)  
385, 132 C.C.C. (3d) 353, at para. 24; R. v. Badger, [1996] 1 S.C.R. 771, 133  
D.L.R. (4th) 324, 105 C.C.C. (3d) 289, at para. 78; R. v. Sioui, [1990] 1 S.C.R.  
1025, at p. 1043, 70 D.L.R. (4th) 427, 56 C.C.C. (3d) 225; Simon v. The Queen,  
[1985] 2 S.C.R. 387, at p. 404, 24 D.L.R. (4th) 390, 23 C.C.C. (3d) 238. See also:  
J. [Sákéji] Youngblood Henderson, “Interpreting Sui Generis Treaties” (1997), 36  
Alta. L. Rev. 46; L.I. Rotman, “Defining Parameters: Aboriginal Rights, Treaty  
Rights, and the Sparrow Justificatory Test” (1997), 36 Alta. Law Rev. 149.  
2. Treaties should be liberally construed and ambiguities or doubtful expressions  
should be resolved in favour of the Aboriginal signatories: Simon, supra, at p. 402;  
Sioui, supra, at p. 1035; Badger, supra, at para. 52.  
3. The goal of treaty interpretation is to choose from among the various possible  
interpretations of common intention the one which best reconciles the interests of  
both parties at the time the treaty was signed: Sioui, supra, at pp. 1068 and 1069.  
4. In searching for the common intention of the parties, the integrity and honour  
of the Crown is presumed: Badger, supra, at para. 41.  
5. In determining the signatories' respective understanding and intentions, the  
court must be sensitive to the unique cultural and linguistic differences between  
the parties: Badger, supra, at paras. 52-54; R. v. Horseman, [1990] 1 S.C.R. 901 at  
p. 907, 55 C.C.C. (3d) 353.  
6. The words of the treaty must be given the sense which they would naturally  
have held for the parties at the time: Badger, supra, at para. 53 et seq.; Nowegijick  
v. The Queen, [1983] 1 S.C.R. 29 at p. 36, 144 D.L.R. (3d) 193.  
7. A technical or contractual interpretation of treaty wording should be avoided:  
Badger, supra; Horseman, supra; Nowegijick, supra.  
797  
The Supreme Court of Canada has also extended the Mitchell principles to apply to division of powers  
cases involving aboriginal groups. See Kitkala Band v. British Columbia (Minister of Small Business, Tourism and  
Culture), [2002] S.C.J. No. 33, para. 46.  
Page: 404  
8. While construing the language generously, courts cannot alter the terms of the treaty by  
exceeding what ‘is possible on the language’ or realistic: Badger, supra, at para. 76; Sioui,  
supra, at p. 1069; Horseman, supra, at p. 908.  
9. Treaty rights of aboriginal peoples must not be interpreted in a static or rigid  
way. They are not frozen at the date of signature. The interpreting court must  
update treaty rights to provide for their modern exercise. This involves  
determining what modern practices are reasonably incidental to the core treaty  
right in its modern context: Sundown, supra, at para. 32; Simon, supra, at p.  
402.798  
[1001]  
Dickson C.J. in Simon799 held that James Matthew Simon as an  
aboriginal person had a treaty right to hunt and that the treaty right prevailed over  
s.150(1) of the Lands and Forests Act of Nova Scotia. That case dealt with a treaty  
of 1752 and Simon was a member of the Shubenacadie Mi’kmaq Band in Nova  
Scotia. This was one of the first cases in which the Supreme Court of Canada  
upheld and validated a treaty signed in the Atlantic Provinces.  
[1002]  
In Sundown the Supreme Court rejected the "frozen rights" concept and  
determined that a right to shelter is incidental to the treaty right:  
How should the term ‘reasonably incidental’ be defined and applied? In  
my view it should be approached in this manner. Would a reasonable  
person, fully apprized of the relevant manner of hunting or fishing,  
consider the activity in question reasonably related to the act of hunting or  
fishing? It may seem old fashioned to apply a reasonable person test but I  
believe it is both useful and appropriate.  
A hunting cabin is, in these circumstances, reasonably incidental to this  
First Nation's right to hunt in their traditional expeditionary style. This  
method of hunting is not only traditional but appropriate and shelter is an  
important component of it. Without a shelter, it would be impossible for  
this First Nation to exercise its traditional method of hunting and their  
members would be denied their treaty rights to hunt. A reasonable person  
apprized of the traditional expeditionary method of hunting would  
conclude that for this First Nation the treaty right to hunt encompasses the  
right to build shelters as a reasonable incident to that right. The shelter  
was originally a moss-covered lean-to and then a tent. It has evolved to  
798  
R. v. Marshall #1, note 599 above, para. 78.  
799  
Simon v. R., [1985] 2 S.C.R. 387.  
Page: 405  
the small log cabin, which is an appropriate shelter for expeditionary  
hunting in today's society.800 [Emphasis added.]  
The Province does not dispute that the Defendants would be entitled to have shelter  
sufficient to exercise any fishing, hunting or trapping rights they may hold.  
[1003]  
In Badger the Court again dealt with the principles of interpretation  
when dealing with treaty rights:  
At the outset, it may be helpful to once again set out some of the  
applicable principles of interpretation. First, it must be remembered that a  
treaty represents an exchange of solemn promises between the Crown and  
the various Indian nations. It is an agreement whose nature is sacred. See  
R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1063; Simon v. The Queen, [1985]  
2 S.C.R. 387, at p. 401. Second, the honour of the Crown is always at  
stake in its dealing with Indian people. Interpretations of treaties and  
statutory provisions which have an impact upon treaty or aboriginal rights  
must be approached in a manner which maintains the integrity of the  
Crown. It is always assumed that the Crown intends to fulfil its promises.  
No appearance of "sharp dealing" will be sanctioned. See Sparrow, supra,  
at pp. 1107-8 and 1114; R. v. Taylor (1981), 34 O.R. (2d) 360 (Ont.  
C.A.), at p. 367. Third, any ambiguities or doubtful expressions in the  
wording of the treaty or document must be resolved in favour of the  
Indians. A corollary to this principle is that any limitations which restrict  
the rights of Indians under treaties must be narrowly construed. See  
Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 36; Simon, supra, at p.  
402; Sioui, supra, at p. 1035; and Mitchell v. Peguis Indian Band, [1990] 2  
S.C.R. 85, at pp. 142-43. Fourth, the onus of proving that a treaty or  
aboriginal right has been extinguished lies upon the Crown. There must be  
"strict proof of the fact of extinguishment" and evidence of a clear and  
plain intention on the part of the government to extinguish treaty rights.  
See Simon, supra, at p. 406; Sioui, supra, at p. 1061; Calder v.  
Attorney-General of British Columbia, [1973] S.C.R. 313, at p. 404.801  
[1004]  
Some further comment may be helpful concerning Marshall #1. There  
the accused, Donald Marshall Jr., a Mi'kmaq, was charged with offences under the  
Federal Fisheries Regulations for selling eels without a license and fishing during a  
closed season, with illegal nets. The issue at trial was whether Marshall possessed a  
treaty right to catch and sell fish under the treaties of 1760-61 which would exempt  
him from compliance with such regulations. By a majority decision of the Supreme  
800  
R. v. Sundown, (1999), 170 D.L.R. (4th) 385 (S.C.C.), paras. 28 and 33.  
801  
R. v. Badger, (1996), 133 D.L.R. (4th) 324 (S.C.C.), para. 41  
Page: 406  
Court of Canada Marshall's appeal was allowed and an acquittal entered on all  
charges.  
[1005]  
The right of Marshall to catch and sell eels to support his family was  
upheld as being a treaty right under a Treaty of Peace and Friendship signed March  
10, 1760 at Halifax. Marshall’s position was that the "truckhouse clause" of that  
treaty incorporated the right to trade and also the right to pursue traditional hunting,  
fishing, and gathering activities in support of trade. Although the Court found that  
these rights were limited to securing "necessaries", they upheld that position. The  
Court concluded that in the historical context of signing treaties the British would  
have wanted the Mi'kmaq to resume their hunting, fishing, and gathering lifestyle in  
the aftermath of the Seven Years War. The Court further considered the fact that the  
British were involved in treaty-making not only with the Mi'kmaq in Nova Scotia  
but with the Maliseet and Pasomoquodi, who live in present day New Brunswick.  
The Court accepted that there was general policy in effect by the British to reach  
Agreements of Peace and Friendship with all the native peoples of the region. The  
treaties had to be interpreted in their historical context. With the collapse of French  
power in North America, the British were anxious to make peace with the Mi'kmaq  
who were allies of the French. As Binnie J. stated for the majority:  
[25]...It is apparent that the British saw the Mi'kmaq trade issue in terms  
of peace, as the Crown expert Dr. Stephen Patterson testified, ‘people who  
trade together do not fight, that was the theory’. Peace was bound up with  
the ability of the Mi'kmaq people to sustain themselves economically.  
Starvation breeds discontent. The British certainly did not want the  
Mi'kmaq to become an unnecessary drain on the public purse of the  
colony of Nova Scotia or of the Imperial purse in London, as the trial  
judge found. To avoid such a result, it became necessary to protect the  
traditional Mi'kmaq economy, including hunting, gathering and fishing.  
[26] The trial judge concluded that in 1760 the British Crown entered into  
a series of negotiations with communities of first nations spread across  
what is now Nova Scotia and New Brunswick. These treaties were  
essentially ‘adhesions’ by different Mi'kmaq communities to identical  
terms because, as stated, it was contemplated that they would be  
consolidated in a more comprehensive and all-inclusive document at a  
later date, which never happened. The trial judge considered that the key  
negotiations took place not with the Mi'kmaq people directly, but with the  
St. John River Indians, part of the Maliseet First Nation, and the  
Passamaquody First Nation, who lived in present-day New Brunswick.  
[56] My view is that the surviving substance of the treaty is not the literal  
promise of a truckhouse, but a treaty right to continue to obtain  
Page: 407  
necessaries through hunting and fishing by trading the products of those  
traditional activities subject to restrictions that can be justified under the  
Badger test.  
[59] The concept of ‘necessaries’ is today equivalent to the concept of  
what Lambert J.A., in R. v. Van der Peet (1993), 80 B.C.L.R. (2d) 75, at p.  
126, described as a "moderate livelihood". Bare subsistence has thankfully  
receded over the last couple of centuries as an appropriate standard of life  
for aboriginals and non-aboriginals alike. A moderate livelihood includes  
such basics as "food, clothing and housing, supplemented by a few  
amenities", but not the accumulation of wealth (Gladstone, supra, at para  
165). It addresses day-to-day needs. This was the common intention in  
1760. It is fair that it be given this interpretation today.802  
[1006]  
Binnie J. found that in 1760 and 1761 the British entered into separate  
but similar agreements with all Mi'kmaq Bands in what was Nova Scotia at the time  
(as well as Cape Breton):  
[27] The trial judge found as a fact, at para 108, that the relevant Mi'Kmaq  
treaty ‘did make peace upon the same conditions’ as the Maliseet and  
Passamaquody. Meetings took place between the Crown and the Maliseet  
and the Passamaquody on February 11, 1760, twelve days before these  
bands signed their treaty with the British and eighteen days prior to the  
meeting between the Governor and Mi'Kmaq representatives, Paul  
Laurent of LaHave and Michel Augustine of the Richibucto region, where  
the terms of the Maliseet and Passamaquody treaties were ‘communicated’  
and accepted.  
[28] The trial judge found (at para101) that on February 29, 1760, at a  
meeting between the Governor in Council and the Mi'kmaq chiefs, the  
following exchange occurred:803  
His Excellency then Ordered the Several Articles of the  
Treaty made with the Indians of St. John's River and  
Passamaquody to be Communicated to the said Paul  
Laurent and Michel Augustine who expressed their  
satisfaction therewith, and declar'd that all the Tribe of the  
Mickmacks would be glad to make peace upon the same  
Conditions .[Emphasis added.]  
802  
Marshall #1, note 599 above, paras. 25, 26, 56 & 59.  
803  
The same, paras. 27 and 28.  
Page: 408  
Governor Lawrence afterwards confirmed, in his May 11,  
1760 report to the Board of Trade, that he had treated  
with the Mikmaq Indians on ‘the same terms’.  
[1007]  
Concerning the principles of treaty interpretation Binnie J. stated804:  
[14]...’Generous’ rules of interpretation should not be confused with a  
vague sense of after-the-fact largesse. The special rules are dictated by  
the special difficulties of ascertaining what in fact was agreed to. The  
Indian parties did not, for all practical purposes, have the opportunity to  
create their own written record of the negotiations. Certain assumptions  
are therefore made about the Crown’s approach to treaty making  
(honourable) which the Court acts upon in its approach to treaty  
interpretation (flexible) as to the existence of a treaty (Sioui, supra, at p.  
1049), the completeness of any written record (the use, eg., of context and  
implied terms to make honourable sense of the treaty arrangement: Simon  
v. The Queen, [1985] 2 S.C.R. 387, 24 D.L.R. (4th) 390, 23 C.C.C. (3d)  
238, and R. v. Sundown, [1999] 1 S.C.R. 393, 170 D.L.R. (4th) 385, 132  
C.C.C. (3d) 353), and the interpretation of treaty terms once found to exist  
(Badger). The bottom line is the Court’s obligation to ‘choose from  
among the various possible interpretations of the common intention [at the  
time the treaty was made] the one which best reconciles’ the Mi’kmaq  
interests and those of the British Crown (emphasis added) (Sioui, per  
Lamer J., at p. 1069). In Taylor and Williams, supra, the Crown conceded  
that points of oral agreement recorded in contemporaneous minutes were  
included in the teraty (p. 230) and the court concluded that their effect was  
to “preserve the historic right of these Indians to hunt and fish on Crown  
lands” (p. 236). The historical record in the present case is admittedly less  
clear-cut, and there is no parallel concession by the Crown.  
[40] In my view, the Nova Scotia judgments erred in concluding that the  
only enforceable treaty obligations were those set out in the written  
documents of March 10, 1760, whether construed flexibly (as did the trial  
judge) or narrowly (as did the Nova Scotia Court of Appeal). The findings  
of fact made by the trial judge taken as a whole demonstrate that the  
concept of a disappearing treaty right does justice neither to the honour of  
the Crown nor to the reasonable expectations of the Mi'kmaq people. It is  
their common intention in 1760 - not just the terms of the March 10, 1760  
document- to which effect must be given.  
[41] Having concluded that the written text is incomplete, it is necessary  
to ascertain the treaty terms not only by reference to the fragmentary  
historical record, as interpreted by the expert historians, but also in light of  
804  
The same, paras. 14, 40, 41 & 43.  
Page: 409  
the stated objectives of the British and Mi'kmaq in 1760 and the economic  
and political context in which those objectives were reconciled..  
...  
[43] ...If the law is prepared to supply the deficiencies of written contracts  
prepared by sophisticated parties and their legal advisors in order to  
produce a sensible result that accords with the intent of both parties,  
though, unexpressed, the law cannot ask less of the honor and dignity of  
the Crown in its dealings with First Nations.  
[1008]  
In Marshall #1, the Court was prepared to go outside the treaty  
document itself and to look at extrinsic evidence to interpret and put the treaty in  
proper context. This same approach is found in Sioui where Lamer J. stated for a  
unanimous court that treaties should be liberally construed and uncertainty resolved  
in favour of the aboriginals:  
Finally once a valid treaty is found to exist that treaty must in turn be  
given a just, broad and liberal construction.805  
[1009]  
The Defendants submit the Sioui case has striking similarities to the  
present one, involving as it does a "military treaty" of the Seven Years War, an  
issue regarding when a band first occupied an area in relation to a European  
presence, and traditional practices by aboriginal defendants on lands set aside by the  
Province as a protected area. The Court in Sioui went on to deal with the unique  
nature of a treaty. Lamer J. stated:  
In Simon this court noted that a treaty with the Indians is unique that it is  
an agreement sui generis which is neither created nor terminated  
according to the rules of international law.806  
[1010]  
Lamer J. also noted what characterizes a treaty:  
... is the intention to create obligations, the presence of mutually binding  
obligations and a certain measure of solemnity.807  
805  
R. v. Sioui, (1990), 70 D.L.R. (4th) 427 (S.C.C.), p. 435.  
806 The same, p. 441.  
807  
The same, para. 43.  
Page: 410  
[1011]  
The document at issue in Sioui (which was determined by the Court to  
be a treaty) was between General James Murray and the Huron of Lorette, Quebec,  
entered into on September 5, 1760. The Court accepted that this treaty remained  
operative in 1982 and that the Defendants were protected by that treaty from  
prosecution under the Parks Act for cutting logs. It is further significant that the  
treaty in question in Sioui did not expressly specify hunting, fishing, and gathering  
rights:  
The document the respondents rely on in support of their contentions is  
dated September 5, 1760 and signed by Brigadier General James Murray.  
It reads as follows:  
THESE are to certify that the CHIEF of the HURON Tribe of Indians,  
having come to me in the name of His Nation, to submit to His  
BRITTANICK MAJESTY, and make Peace, has been received under my  
Protection, with his whole Tribe; and henceforth no English Officer or  
party is to molest, or interrupt them in returning to their Settlement at  
LORETTE; and they are received upon the same terms with the  
Canadians, being allowed the free Exercise of their Religion, their  
Customs, and Liberty of trading with the English: - recommending it to  
the Officers commanding the Posts, to treat them kindly.  
Given under my hand at Longueil, this 5th day of September, 1760.  
By the Genl's Command,  
JOHN COSNAN,  
Adjut. Genl.  
J.A.MURRAY  
The Hurons had been in the Quebec area since about 1650, after having  
had to leave their ancestral lands located in territory which is now in  
Ontario. In 1760, they were settled at Lorette on land given to them by the  
Jesuits 18 years earlier and made regular use of the territory of  
Jacques-Cartier park at that time.808  
[1012]  
The Court in Sioui did not require that the Huron occupy the area in  
question previous to the 1760 Treaty to a degree that would give rise to aboriginal  
title. The Court specifically recognized that the territory occupied by this particular  
Band of Huron had changed since initial contact. The Court held:  
The treaty gives the Hurons the freedom to carry on their customs and  
their religion. No mention is made in the treaty itself of the territory over  
which these rights may be exercised. There is also no indication that the  
808  
The same, pp. 431-2.  
Page: 411  
territory of what is now Jacques-Cartier Park was contemplated. However,  
for a freedom to have real value and meaning, it must be possible to  
exercise it somewhere. That does not mean, despite the importance of the  
rights concerned, that the Indians can exercise it anywhere.[pp. 459-60]  
...  
No one argued that the area between the Saguenay and the St. Maurice  
was land over which there was aboriginal title in favor of the Hurons. In  
fact, a group of about 300 people had been brought into the area around  
Quebec by the Jesuits in 1650...and its relatively recent presence in the  
Lorrette area suggests that the Hurons did not have historical possession  
of these lands.[462]  
...  
Accordingly, I conclude that in view of the absence of any express  
mention of the territorial scope of the treaty, it has to be assumed that the  
parties to the treaty of September 5th intended to reconcile the Hurons'  
need to protect the exercise of their customs and the desire of the British  
conquerors to expand. Protecting the exercise of their customs in all parts  
of the territory frequented when it is not incompatible with its occupancy  
is in my opinion the most reasonable way of reconciling the competing  
interests.809 (Emphasis added).  
[1013]  
The Supreme Court dealt with the honour of the Crown in its dealings  
with aboriginal rights. Binnie J. in Marshall #1 quoted Cory J. in Badger:  
... the honour of the Crown is always at stake in its dealings with Indian  
people. Interpretations of treaties and statutory provisions which have an  
impact upon treaty or aboriginal rights must be approached in a manner  
which maintains the integrity of the Crown. It is always assumed that the  
Crown intends to fulfil its promises. No appearances of ‘sharp dealing’  
will be sanctioned.810  
[1014]  
Binnie J. also quoted with approval MacKinnon A.C.J.O. in Taylor:811  
Further, if there is any ambiguity in the words or phrases used, not only  
should the words be interpreted as against the framers or drafters of such  
treaties, but such language should not be interpreted or construed to the  
prejudice of the Indians if another construction is reasonably possible.  
809  
The same, paras. 108, 117 & 120.  
810  
811  
Marshall #1, para. 49, quoting Cory J. in Badger, para. 41.  
R. v. Taylor (1981), 62 C.C.C. (2d) 227 (Ont. C.A.); leave to appeal to S.C.C. refused [1981] 2 S.C.R.  
xv.  
Page: 412  
[1015]  
While the Province acknowledges that aboriginal treaties should be  
construed liberally, with doubtful expressions resolved in favour of aboriginal  
signatories, it submits this is not the only principle of treaty interpretation and is not  
to be applied to the exclusion of all others.  
[1016]  
Of necessity, there are reasonable limits on treaty interpretation.  
McLachlin, C.J.C. emphasized that “While constructing the language generously,  
courts cannot alter the terms of the treaty by exceeding what is ‘possible on the  
language’ or realistic”.812  
[1017]  
Therefore, construing specific ambiguities contained in treaties in  
favour of the aboriginal signatories should not be confused with simply construing  
treaties generally in favour of aboriginals, regardless of the specific treaty terms,  
and the signatories’ intentions.  
[1018]  
While courts are required to interpret treaties generously, with  
sensitivity to the linguistic and cultural differences between the parties, the central  
aim of treaty interpretation remains arriving at the realistic interpretation that best  
reflects the common intention of the parties.813 The minority in Marshall #1 agreed  
with Binnie J.’s adoption of Lamer J.’s approach in Sioui:  
The bottom line is the Court’s obligation is to ‘choose from among the  
various possible interpretations of the common intention [at the time the  
treaty was made] the one which best reconciles’ the Mi’kmaq interests and  
those of the British Crown.814 [Emphasis added by Binnie J.]  
[1019]  
The Province submits the Defendants’ argument suggests that  
aboriginal intent should be granted primacy in the Court’s consideration due to the  
sui generis nature of the right and the fact that treaties should be liberally construed,  
with ambiguities resolved in favour of the aboriginals. I agree such an approach  
would be incompatible with the principles articulated in Marshall #1 and runs  
contrary to Lamer J.s comments in R.v. Sioui. There the Court adopted a balanced  
812  
Marshall #1, pp. 553-555, para. 78; R. v. Sioui, p. 461.  
813  
See Robert Normey, “Angling for ‘Common Intention’: Treaty Interpretation in R. v. Marshal,” (2000),  
63 Saskatchewan Law Review, 645.  
814  
Binnie J. in Marshall #1, para. 14, and McLachlin C.J.C., para. 98..  
Page: 413  
approach to interpretation that considered the intent of both parties to a treaty.  
Lamer, J. concluded that:  
...if the rights of the Hurons are defined without...adopting such a position  
would go beyond what General Murray intended. Even a generous  
interpretation of the document such as Bisson, J.A.’s interpretation, must  
be realistic and reflect the intention of both parties, not just that of the  
Hurons. The court must choose from among the various possible  
interpretations of the common intention the one which best reconciles the  
Hurons’ interests and those of the conqueror.815 [Emphasis added.]  
[1020]  
In the present case the Defendants say they are merely stating that  
aboriginal intent should be considered when addressing ambiguities and seeking the  
intent of both parties.  
[1021]  
In Marshall #1 the Supreme Court made it clear that in the  
interpretation of treaties it is entirely appropriate to consider the extrinsic evidence  
surrounding the signing of the treaty in an effort to ascertain the intentions of the  
parties. However, as noted above (at para. 1000) in principles 6 and 8 stated by  
McLachlin C.J., this consideration is constrained by reasonable limits imposed by  
the language of the text.  
[1022]  
Dr. Stephen Patterson was qualified by the Court as an expert witness  
with authority to give opinion evidence on the history of aboriginals in Atlantic  
Canada, with special reference to Mi’kmaq, to Mi’kmaq treaties of the 18th Century,  
and to other aspects of the relationship between the Mi’kmaq and colonial  
governments and societies. Dr. Patterson based his opinion on a series of principles  
he used as a guide in the interpretation of local Nova Scotia treaties.  
The practice of making treaties with aboriginal people was primarily a  
British idea. Other European colonizers, notably the French, rarely sought  
to establish a relationship with aboriginal people through treaties, while  
aboriginal communities themselves seldom took the initiative, but rather  
waited for the British to make treaty overtures. A treaty could be a formal  
signed agreement, made with some semblance of ceremony, or it could be  
simply a discussion, whether it brought about agreement or not. Even  
without agreement, a treaty discussion at least indicated that the parties  
dealt with one another with respect, and preferred discussion to other  
forms of dispute resolution. One must accept, as a principle, that treaties  
can be either written or unwritten, although in either case, historians rely  
815  
R. v. Sioui, p. 461.  
Page: 414  
on concrete empirical evidence to establish the existence of a treaty  
agreement. Some form of verifiable proof is essential. It is equally  
important to consider any other written or unwritten evidence that sheds  
light on a treaty, even if the evidence is not part of the treaty itself. This is  
the principle of context, a standard aspect of all historical inquiry.  
Context may speak to many issues and, importantly, it may shed light on  
the intent of the parties to a treaty, or illustrate what each may have  
understood of the treaty discussion or agreement. All of these principles  
may be considered matters of definition: an Indian treaty was sui generis  
or distinctive, it established a relationship between a colonial power and  
an aboriginal community, it could take written or unwritten form, and it  
must be understood in its proper historical context.  
For matters of convenience, let me briefly summarize several other  
principles that guide my historical analysis, as follows:  
(1)  
Treaties depend for their legitimacy on evidence that they were  
made by persons duly authorized to do so. For the British, such persons  
were governors, lieutenant governors, or their duly authorized  
subordinates; or they were British military officers operating outside of  
areas under civilian jurisdiction. In both cases, such officials acted under  
instruction from the crown. Equally, aboriginal communities were bound  
only by those treaties that they agreed to first-hand, through their chiefs or  
other duly authorized headmen.  
(2)  
The contents of a treaty are to be found in the treaty document,  
the minutes of its negotiation, or in some other reliable historical form.  
(3)  
The contents of a treaty made with one aboriginal community  
cannot be assumed to apply to another without some clear empirical  
evidence that the parties intended this to be so.  
(4)  
Special consideration must be given to the ways aboriginal people  
understood treaties, given that they generally lacked literacy, education, or  
experience equivalent to Europeans, and they rarely left behind a written  
record expressing their point of view. Contextual evidence may be  
essential here: evidence of the presence of qualified interpreters, evidence  
of previous native experience with Europeans, linguistic evidence to  
establish whether certain phrases or concepts were intelligible, and  
evidence of subsequent behaviour may all shed light on questions of  
native understanding and acceptance of treaty terms.  
(5)  
Where parties to a treaty made subsequent treaties with each  
other, the purpose of which was to renew or re-establish a relationship, the  
later treaty may be understood to supercede the earlier one.  
(6)  
Where either or both parties behaved in a manner that indicated  
that they no longer adhered to their treaty agreement, the treaty was  
effectively terminated. Especially where a treaty was meant to establish  
Page: 415  
peace, subsequent acts of hostility or war terminated the treaty, requiring a  
new treaty if the parties wished to re-establish a relationship. In such  
cases, I hold that principle (2), as stated above, applies. That is, the new  
treaty consisted only of what the parties agreed to; for the content of their  
new agreement we must depend entirely on empirical evidence.816  
Naturally it is the principles of interpretation of the Supreme Court which must be  
applied if any conflict arises between these and any expert witnesses. Generally,  
however, that has not been a problem in the present case. I find Dr. Patterson’s  
principles are compatible with those of the Supreme Court of Canada.  
[1023]  
In the present case I conclude the proper approach to interpretation,  
distilled from the principles established by the Supreme Court, requires  
consideration of the express treaty language, the historical circumstances under  
which the treaty was signed, what the parties sought to accomplish, and the conduct  
of the parties subsequent to the signing of the treaty, in order to ascertain the  
common intention and understanding of the parties, with ambiguities resolved in  
favour of the aboriginals. I will now apply this approach to each treaty and attempt  
to answer the questions raised in the Introduction to this part of my decision.  
3.  
The Treaty of 1725-26  
(a) The parties to the treaty  
[1024]  
As a threshold requirement the Defendants must establish that they are  
members of the local community with which the treaty was made. The Supreme  
Court of Canada stated in Marshall #2817 that when a treaty defence is raised:  
The onus will then switch to the accused to demonstrate that he or she is a  
member of an aboriginal community in Canada with which one of the  
local treaties described in the September 17, 1999 majority judgment was  
made, and was engaged in the exercise of the community’s collective right  
to hunt or fish in that community’s traditional hunting and fishing  
grounds.818  
816  
Patterson, Expert Report, pp. 27-29 .  
817  
R. v. Marshall (1999), 179 D.L.R. 193 (S.C.C.).  
818  
The same, para. 17.  
Page: 416  
[1025]  
The Supreme Court in Sundown819 took the same position, noting that  
treaty rights, like aboriginal rights, are specific and may be exercised exclusively by  
the First Nation that signed the treaty. The Court followed Lamer C.J. in Van der  
Peet820 in holding the existence of the right will be specific to each aboriginal  
community.  
[1026]  
The draft treaty of 1725, prepared on behalf of the Cape Sable  
Mi’kmaq, referred expressly seven times to tribes inhabiting or government  
jurisdiction over “Territories of Nova Scotia or Accadie and New England”.821 The  
treaty ratified in 1726 by Mi’kmaq at Annapolis Royal822 referred to tribes  
inhabiting “his Majesty of Great Britain Territories of Nova Scotia & New  
England”, referred to King George by the Treaty of Utrecht having become the  
“rightfull Possessor of the Province of Nova Scotia or Accadia”, again referred to  
representatives from tribes inhabiting “his Majesties Province of Nova Scotia or  
Accadia & New England”, and, finally, has the representatives “acknowledge his  
said Majesties King George’s Jurisdiction and Dominion Over the Territories of the  
said Province of Nova Scotia or Accadia”. The Doucett promises,823 reciprocal to  
the treaty document signed by the native representatives, also refer to the promises  
being made on behalf of the government of Nova Scotia. I conclude, therefore, that  
the express words of the treaty of 1925-26 support the conclusion that the common  
intention of the parties was that the treaty was intended to bind the natives of Nova  
Scotia, which at that time did not include Cape Breton.824 I agree with Dr. Patterson  
that the fact one individual is identified as “from Cape Breton” does not establish he  
acted for the Cape Breton band. Nothing in the circumstances surrounding the  
treaty gives a reason to deviate from its express terms.  
819  
R. v. Sundown (1999), 170 D.L.R. (4th) 385 (S.C.C.).  
820  
R. v. Van der Peet, [1996] 2 S.C.R. 507, para. 69.  
821  
See, C.O. 0.217/38, ff. 98-99 [CD 332].  
822  
C.O. 217/38, ff. 102-03 [Patterson Supporting Documents, Tab 62].  
823  
C.O. 217/38, ff. 100-01 [Patterson Supporting Documents, Tab 63].  
824  
“French sovereignty was dramatically reduced to Isle Royale (Cape Breton) and Isle St. Jean (Prince  
Edward Island) by the Treaty of Utrecht in 1713, and removed completely in the Treaty of Paris in 1763".: Stephen  
E. Patterson, “Anatomy of a Treaty: Nova Scotia’s First Native Treaty in Historical Context” (1999), 48 U.N.B.L.J.  
41, at 45.  
Page: 417  
(b) Subsequent hostilities  
As explained by Dr. Patterson,825 the Mi’kmaq allied themselves with  
[1027]  
the French when war broke out in 1744 between Britain and France. I agree with  
Dr. Patterson that the subsequent behaviour of both Mi’kmaq and British indicates  
that neither felt bound by the Treaty of 1725-26 and that both believed the treaty  
was terminated by their hostilities. Accordingly, even if the treaty had been  
intended to apply to Cape Breton Mi’kmaq, generally, which I do not accept, the  
Defendants cannot now rely upon this treaty as descendants of the Cape Breton  
band, since the treaty was repudiated by the parties.  
(c) Geographic scope  
[1028]  
The express references in the Treaty of 1725-26 to Nova Scotia or  
Acadia, combined with the fact that Cape Breton was not then part of Nova Scotia,  
establishes the geographic scope of the treaty was Nova Scotia and did not include  
Cape Breton or Newfoundland.  
[1029]  
I need not consider the nature of the treaty rights provided for in the  
Treaty of 1725-26 since, for the above reasons, I have concluded the Defendants  
cannot rely upon it.  
4.  
The Treaty of 1752  
(a) The parties to the treaty  
[1030]  
The express words of the treaty refer to the British signatory being the  
“Captain General and Governor in Chief in and over His Majesty’s Province of  
Nova Scotia or Accadie” and the native signatories being of the “Tribe of Mick  
Mack Indians, Inhabiting the Eastern Coast of the said Province”. From this the  
reasonable conclusion is that the common intention of the parties was that the treaty  
would apply to those on whose behalf they had authority to sign, in the case of the  
natives this being the Mi’kmaq of Nova Scotia and not of Cape Breton, which was  
not then part of Nova Scotia.  
825  
Patterson Expert Report, pp. 38-40, and Patterson, “Anatomy of a Treaty”, note 821 above, pp. 62-3.  
Page: 418  
[1031]  
I note the majority in Marshall #1 concluded the 1752 treaty was  
between the Crown and the Shubenacadie Band of Mi’kmaq. I have received no  
evidence in this case warranting another conclusion.  
[1032]  
I agree with Dr. Patterson that the Treaty of 1752 was of limited  
applicability, there being no evidence other Mi’kmaq bands adhered to the Treaty so  
as to make it of general applicability to all Mi’kmaq. The Defendants presented no  
evidence to show the treaty applied to either the Cape Breton Mi’kmaq or its  
territory or to the Conne River Band.  
(b) Is the Treaty valid and subsisting  
[1033]  
If I am wrong as to the Defendants not being parties to the Treaty of  
1752, I am satisfied that, in any event, this treaty was terminated by subsequent  
hostilities between the parties. Dr. Patterson confirmed that, as noted in Marshall  
#1,826 skirmishing commenced again in 1753 between the British and the Mi’kmaq.  
The Mi’kmaq signatory, Major Jean Baptiste Cape, staged a violent demonstration  
of his repudiation of the treaty.827 I note the subsequent treaties of 1761-62 did not  
renew this treaty and I am satisfied it was repudiated by the subsequent hostilities.  
[1034]  
I conclude the Defendants cannot rely upon the treaty of 1752, since  
the treaty did not include the Mi’kmaq of Cape Breton, whom the Defendants claim  
as ancestors, and, in any event, the treaty was terminated by subsequent hostilities.  
5.  
The Whitmore Treaty of 1759  
[1035]  
For reasons already given, I have concluded the Treaty of 1725-26 did  
not apply to the Cape Breton Mi’kmaq or their territory. Therefore, I reject the  
conclusion of Dr. Wicken (para. 908 above) that Cape Breton Mi’kmaq Chief  
Jeannot Peguidalouet would have understood that the treaties of 1759-1761  
constituted a renewal of the provisions of the 1725-26 treaty. I accept the opinion  
of Dr. Patterson that this earlier treaty was by 1759 a dead letter.  
826  
R. v. Marshall, note 599 above, p. 527, para. 16.  
827  
Patterson, Expert Report, p. 41.  
Page: 419  
[1036]  
I am satisfied that, following the fall of the fortress of Louisbourg to  
the British on Cape Breton Island in July 1758 and the fall of Quebec in 1759,  
General Whitmore dispatched Lieutenant Schomberg to put an end to privateering  
out of Merigomish (para. 892 above). I agree with the Defendants that the Articles  
of Capitulation ratified by the Mi’kmaq at Pictou and Merigomish, must be  
considered in the context of the assurances contained in the letter of Lieutenant  
Schomberg to Abbé Maillard dated October 26, 1759, the more reliable version of  
which I conclude is the official document, that is, that translation from the copy of  
the letter sent to the Governor of New France, rather than the translation in the  
Boston Evening Post (para. 893 above).  
[1037]  
I also agree that Lieutenant Schomberg’s letter and the diary of  
Jonathan Proctor are relevant matters to consider in attempting to determine what  
may have been set out in the missing “Whitmore Treaty” subsequently concluded at  
Louisbourg. For the following reasons, however, I am not persuaded that  
Lieutenant Schonberg’s assurance to the Mi’kmaq of enjoyment of “all our  
possessions, your liberty, property with free exercise of your religion” should be  
interpreted as a recognition by the British that the Mi’kmaq of Cape Breton would  
have fishing, hunting and trapping rights in what is now the Bay du Nord  
Wilderness Area on the Island of Newfoundland.  
[1038]  
First, the Defendants have not established that Lieutenant Schomberg  
even knew the Mi’kmaq of Cape Breton were by that time travelling to  
Newfoundland. Accepting, as I previously found (paras. 507 to 509 above) that by  
1759 the Mi’kmaq probably would have been occasionally travelling to the Island  
of Newfoundland to fish, hunt and trap, the Defendants have not proven that the  
Mi’kmaq were doing this in the territory of the Bay du Nord Wilderness Area  
(paras. 507-510 above). Even if the Mi’kmaq understood that their “liberty” or  
“property” included liberty to fish, hunt and trap in Newfoundland, the Supreme  
Court of Canada in Sioui828 makes it clear that the common intentions of both  
parties determines the extent of territory to which a treaty applies. Binnie J. in  
Marshall #1 also looked for “the common intention...that best reconciles the  
Mi’kmaq interests and those of the British Crown”.829 The Defendants have not  
proven the British intended to recognize Mi’kmaq rights on the Island of  
828  
R. v. Sioui (1990), 70 D.L.R. (4th) 427 (S.C.C.), pp. 460-61.  
829  
R. v. Marshall, note 599 above, para. 14.  
Page: 420  
Newfoundland. Unlike the situation in Sioui, the aboriginals dealing with  
Lieutenant Schomberg had territory within which to exercise any rights granted,  
namely, their traditional territory within Cape Breton. I conclude restricting any  
rights granted to that territory was the common intention that best reconciled  
Mi’kmaq and British interests. Emphasis upon preserving the integrity and honour  
of the Crown does not change this result. The Crown here is not engaging in a  
sharp practice but merely asking for a reasonable interpretation.  
[1039]  
A second reason for rejecting the Defendants’ submissions concerning  
the Schomberg - Whitmore Treaty is the vagueness of the language upon which  
they rely. Even applying a liberal construction in favour of the Defendants, in the  
context of demanding submissions and capitulation from the Mi’kmaq allies of its  
defeated French enemy it would be an extraordinary and unrealistic interpretation of  
Schomberg’s assurance of enjoyment of “possessions...liberty...property” to  
conclude this was intended by either party as a grant to the Cape Breton Mi’kmaq of  
a right to fish, hunt and trap on the Island of Newfoundland. To so interpret would  
be to exceed what “is possible on the language”.830  
[1040]  
A third reason for accepting the Province’s submissions regarding the  
Schomberg - Whitmore Treaty is the unlikelihood of Lieutenant Schomberg or  
General Whitmore having an intention to purport to deal with territory outside their  
jurisdiction. The Defendants argue that Cape Breton was not within their  
jurisdiction either, since it did not become officially British until the Treaty of Paris  
in 1763. I disagree. As Dr. Patterson testified (para. 752 above), British General  
Whitmore took jurisdiction by articles of capitulation from the French commandant  
of Louisbourg in 1758. Subsequently, Whitmore was designated Governor of Cape  
Breton and Prince Edward island, subordinate to and answerable to the Governor of  
Nova Scotia. I do not accept that the British officers would have had the intention  
to conclude a treaty, which would affect territory, such as the Island of  
Newfoundland, where other British officials had been granted authority to exercise  
jurisdiction. Whether or not the British had authority under international law to  
conclude a treaty in Cape Breton before 1763 is not the issue. The de facto control  
of the British over Cape Breton would be a sufficient basis for the 1761 treaty, just  
830  
See, Marshall #1, note 599 above, para. 78, and authorities there noted.  
Page: 421  
as in Sioui831 the Court held the British could enter into a treaty with the Hurons in  
1760, though the British Crown was still not sovereign in Canada.  
[1041]  
The diary of Jonathan Proctor, with its reference to the Indians having  
come to Whitmore “to conferme their Peace, that they May have Liberty to Trade”,  
if correct confirms that the parties considered the Schomberg negotiations to be  
merely an interim measure. We do not know the terms of the missing document  
ratified by the Mi’kmaq and Whitmore. However, the subsequent letters from  
General Whitmore to General Amerhust, dated December 1, 1759 and November  
14, 1760 do not refer to provisions regarding rights to fish, hunt and trap or to trade.  
The first letter refers merely to “Oaths of Allegiance” and the second to an  
agreement to live “on a footing of Friendship”, with “articles...agreed on and  
Signed...in Form” and notes Whitmore’s clothing the Mi’kmaq and giving them  
“some presents of Provisions etc.” I believe these letters provide better evidence of  
what was contained in the Whitmore Treaty than the speculative notes in the diary  
of New England militiaman Jonathan Proctor. If the Whitmore Treaty had dealt  
with fishing, hunting, trapping or trade rights, I believe General Whitmore probably  
would have so informed General Amherst. And General Whitmore was in a better  
position to know the terms than a soldier of Proctor’s rank.  
[1042]  
Supporting the view that the military treaties did not include trading  
rights or were anything other than submissions and oaths of allegiance is a letter  
from Colonel Frye, writing from Fort Cumberland in 1760, which confirms that the  
natives were coming to these military authorities in order to submit to the British  
Crown:  
With the French Priest came two Indian Chiefs, viz. Paul Lawrence and  
Augustine Michael; Lawrence tells me he was a Prisoner in Boston, and  
lived with Mr. Henshaw a Blacksmith; he is Chief of a Tribe that before  
the war lived at La Have; Augustine is Chief of a Tribe at Richibucta. I  
have received their Submissions for themselves and Tribes, to His  
Britannic Majesty, and sent them to Halifax for the Terms by Governor  
Lawrence. I have likewise received the Submissions of two other Chiefs,  
who I dealt with as those before mentioned, and was in Hopes (which I  
mentioned to Mr. Manach) I had no more Treaties to make with Savages;  
but he told me I was mistaken as there wou’d be a great many more here  
upon the like business, as soon as their Spring Hunting was over; and  
upon my inquiry how many, he gave me a list of fourteen Chiefs,  
831  
R. v. Sioui (1990), 70 D.L.R. (4th) 427 (S.C.C.), pp. 436-7.  
Page: 422  
including those already mentioned (Copy of which I have inclosed) most  
of which he said would come.832  
[1043]  
Further support for this view of the Whitmore military treaty comes  
from the fact that it was approximately two weeks after its ratification, on  
November 30, 1759, that the Nova Scotia Council decided to encourage natives to  
go to Halifax, where they would have “an opportunity of extending their trade, by  
the establishment of truckhouses amongst them.833  
[1044]  
For these reasons I conclude the Defendants cannot rely upon the  
Whitmore Treaty as a basis for claiming fishing, hunting and trapping rights in the  
Bay du Nord Wilderness Area.  
6.  
The Treaty of 1761  
On March 10, 1760, the British formalized treaties at Halifax with the  
[1045]  
first three Mi’kmaq communities of Richibuctou, La Have, and Shubenacadie -  
Musquodoboit. Unlike the earlier Maliseet - Passawaquoddy Treaty, the Mi’kmaq  
treaties did not expressly refer to renewal of earlier treaties. On June 25, 1761 Chief  
Jeannot Pequidoualouet signed a treaty with Jonathan Belcher, Acting Lieutenant  
Governor, at Belcher’s farm (paras. 766-778, above). No existing copy of this  
treaty has been found. The parties agree, however, it probably was similar to the  
Shediac Band treaty.834 The parties also agree the treaty is valid and subsisting.  
[1046]  
Disagreement exists concerning whether the Defendants’ ancestors at  
Conne River, the Miawpukek Band, should be considered parties to the treaty and  
whether the common intention of the signatories was to have the treaty extend to the  
Island of Newfoundland.  
(a) The parties to the treaty of 1761  
832  
Letter from Colonel Frye to Governor Lawrence, March 7, 1760, Boston Post-Boy & Advertiser, April  
7, 1760 [Province’s Historical Documents, vol. 94, CD 1120].  
833  
Minutes of the Nova Scotia Council for November 30, 1759, Record Group (RG) 1, vol. 188, pp. 110-  
12, Public Archives of Nova Scotia [Patterson, Expert Report, p. 44].  
834  
Treaty of Peace and Friendship, June 25, 1761 (CO 217/18), ff. 281-283v [Province’s Historical  
Documents, vol. 34, CD 482].  
Page: 423  
[1047]  
I agree with the Province that the Defendants have not established the  
Miawpukek Band of Conne River is a community with which the treaty of June 25,  
1761 was made. Indeed the Defendants concede their band, like bands on Prince  
Edward Island and Quebec, was not specifically a party to the treaty. But the  
Province’s case for rejecting aboriginal rights is that the Defendants’ ancestors  
probably came from Mi’kmaq bands in Cape Breton. I have earlier found that  
Mi’kmaq were travelling to the Island of Newfoundland sporadically and  
occasionally in the period 1713 to 1763 (paras. 507-510 above). I also found that  
by 1764 the Mi’kmaq probably were regularly frequenting the Conne River area  
(para. 510 above). I conclude the evidence sufficiently establishes the Defendants’  
ancestors’ connection with the Mi’kmaq in Cape Breton at the time the treaty of  
1761 was made. The Province’s expert, Dr. Patterson, agreed that by March, 1762  
treaties of peace had been concluded with “every District of the Tribes of  
Indians”835 with whom the Governor and Council in Halifax dealt, although Dr.  
Patterson was of the opinion some of these treaties were merely military  
submissions and oaths of allegiance.836 I believe this is sufficient evidence to  
establish that the Defendants’ ancestors were probably parties to a treaty with  
British officials in Nova Scotia similar to the Shediac Band treaty.  
(b) The geographic extent of the treaty of 1761  
[1048]  
As with the Schomberg - Whitmore Treaty, I am not satisfied the  
British officials had the intention, when they entered into the treaty in 1761 with the  
Mi’kmaq of Cape Breton, to have it apply to territory on the Island of  
Newfoundland.  
[1049]  
The Defendants argue the honour and fiduciary duty of the Crown  
would be compromised if jurisdictional issues and divisions within the British  
colonial and constitutional structure resulted in the Mi’kmaq not obtaining treaty  
rights in Newfoundland. I do not agree. Whatever the understanding of the  
Mi’kmaq as to the authority of Lieutenant Governor Belcher, the Supreme Court in  
835  
Journals of the Nova Scotia House of Assembly, II (1761-64), 53-4, RG 1, vol. 430, f. 21 (CD 488].  
836  
Patterson, Expert Report, at 54.  
Page: 424  
Sioui837 and Marshall #1838 has clearly stated courts must look for the common  
intention of the signatories to treaties. Seeking a reasonable interpretation of  
language expressing that intention does not compromise the honour and integrity of  
the Crown.  
[1050]  
By the time the treaties were signed on Belcher’s farm near Halifax,  
Cape Breton was under British military control. As noted above (para. 752), Dr.  
Patterson testified that by the articles of capitulation made at Louisbourg in the  
summer of 1758, the French commandant surrendered Cape Breton Island to the  
British and Cape Breton then fell within the military control and jurisdiction of the  
British General Whitmore, who was subsequently designated Governor for Cape  
Breton and Prince Edward Island, subordinate to and answerable to the Governor of  
Nova Scotia. The Royal Instructions to Governor Lawrence839 establish that his  
jurisdiction did not extend to the Island of Newfoundland, a separate colony. The  
Instructions granted authority to treat with Indians “within the Province of Nova  
Scotia” and the territory explicitly referred to in the 1761 treaty is Nova Scotia. I do  
not accept that Governor Belcher would have had the intention to conclude a treaty  
which would affect territory, such as the Island of Newfoundland, where other  
British officials had been granted authority to exercise jurisdiction.  
[1051]  
This conclusion is supported by the express language of the Treaty,  
which notes Jonathan Belcher is “President of His Majesty’s Council and  
Commander in Chief in and over His Majesty’s Council of Nova Scotia or Acadia”.  
I do not accept that the Mi’kmaq promise not to molest British subjects in Nova  
Scotia “or elsewhere” has the effect of extending territorial rights outside of Nova  
Scotia. That particular term was for the benefit of the Crown, not the Mi’kmaq. It  
would be straining that language and an unreasonable interpretation to construe this  
as the creation of some form of portable Mi’kmaq right, particularly considering the  
case law which establishes treaty rights are specific to a particular territory and do  
not create a free-ranging right or a right at large.840  
837  
R. v. Sioui (1990), 70 D.L.R. (4th) 427 (S.C.C.), p. 641.  
838  
R. v. Marshall (1999), 177 D.L.R. (4th) 513 (S.C.C.), p. 526.  
839  
Royal Instructions to Governor Charles Lawrence, March 2, 1756 (MG/40, B13) [Province’s Historical  
Documents, vol. 95, CD 1160]. Belcher replaced Lawrence, who died in 1760.  
840  
R. v. Sundown (1999), 170 D.L.R. (4th) 385 (S.C.C.), para. 35; R. v. Jacobs, [1999] 3 C.N.L.R. 239  
(B.C.S.C.), para. 126.  
Page: 425  
[1052]  
The doctrine of constitutional law that the Crown was one and  
indivisible841, relied on by the Defendants, does not persuade me otherwise. British  
Crown officials in London then may have had the authority to instruct the Governor  
of Nova Scotia to treat with Indians in Newfoundland. But the question before this  
Court is whether in fact they did so. The Royal Instructions establish they did not.  
[1053]  
The Defendants note that in June, 1761 there had been no Governor in  
Newfoundland for eight months. Their expert historian, Robert Cuff, explained  
how “The commodore of the convoy dispatched to the Newfoundland fishery had  
been commissioned Governor of Newfoundland since 1729, typically arriving in St.  
John’s in July or August and departing to convoy the fishing fleet in September or  
October”, and that these had been referred to by D.W. Prowse as “[t]he floating  
Governors”.842 The fact that no person then occupied the post does not change the  
structure of authority within the British constitutional system. British Crown  
officials had assigned authority in Newfoundland to “floating Governors” and not to  
the Governor of Nova Scotia.  
[1054]  
The geographic extent of treaty rights is normally restricted to the  
territory that was part of the traditional territory of the aboriginal community at the  
time the treaty was made. I do not accept that the occasional and sporadic visits of  
the Mi’kmaq to Newfoundland between 1713 and 1761 noted earlier (paras. 507-  
510) establish that the Island of Newfoundland was part of the traditional territory  
of the Mi’kmaq, even if Governor Belcher was aware of the Mi’kmaq visits to  
Newfoundland, of which I have no evidence. The Defendants’ expert, Dr. Wicken,  
agreed the record indicates there was infrequent usage of areas of southern  
Newfoundland by the Mi’kmaq up until 1761. I do not agree that occasional  
Mi’kmaq appearances in Newfoundland before 1761, more than 200 years  
following initial contact with Europeans and utilizing European technology, warrant  
the conclusion that Governor Belcher should be taken to have intended to include  
Newfoundland in the territory affected by the Treaty of 1761. I am not satisfied the  
Mi’kmaq would have intended this either. I find support for this conclusion in the  
practice of the British, from at least as far back as the treaties of 1725-26, when  
841  
See, Lord Denning’s statement of this doctrine in R. v. Secretary of State for Foreign and  
Commonwealth Affairs, ex parte Indian Association of Alberta, [1982] 2 All E.R. 118 (C.A.), p. 123.  
842  
Cuff, Expert Report, p. 1.  
Page: 426  
separate treaties were prepared for Massachusetts, New Hampshire and Nova  
Scotia, which would have made very clear to natives that different British officials  
had authority to treat for different territories.  
(c) Subsequent conduct of the parties  
[1055]  
The subsequent conduct of the parties also supports this conclusion.  
Subsequent conduct is a relevant indicator in determining the intent of the parties.843  
I agree with the Province’s submissions (paras. 818-853, above) that the failure of  
the British to establish truckhouses (as promised in the treaty of 1761) in  
Newfoundland, the request of Chief Jeannot for passports to travel to  
Newfoundland, and official British reaction to the Mi’kmaq request for presents  
from Captain Thompson, all indicate that neither Nova Scotia authorities,  
Newfoundland authorities, the British Board of Trade, nor the Mi’kmaq themselves  
saw the 1761 treaty as conferring treaty rights on Mi’kmaq in Newfoundland.  
No truckhouses or licences  
[1056]  
I am in agreement with the Province that, had Governor Belcher or the  
Mi’kmaq of Cape Breton intended to have territory in Newfoundland covered by  
the treaty of 1761, a truckhouse system and a subsequent licensing system for fur  
traders would have been set up for Newfoundland as it was for Nova Scotia (paras.  
820-829 above). Yet the Defendants’ expert witness, Dr. Wicken, agrees no record  
exists to show this was ever done. Indeed, the historical record is to the contrary.  
The Schemes of the Fishery made sporadic references after 1713 to Cape Breton  
Indians coming to Cape Ray in Newfoundland to hunt, but contain no reference to  
any form of established long term fur trade (paras. 823-825 above).  
Chief Jeannot’s Passport  
[1057]  
The historical record establishes that the Governor of Nova Scotia  
issued a passport to Mi’kmaq Chief Jeannot in 1765 (paras. 830-837 above), to  
allow him to trade and hunt in Newfoundland on the basis that he had the same right  
as any other British subject to pass from one part of British territory to another.  
Although the Governor noted the possibility of Chief Jeannot having gone in any  
event, (“he might have taken that liberty with impunity”), the fact that the Governor  
843  
R. v. Sioui, note 834 above, p. 442.  
Page: 427  
did not refer to a treaty right held by Chief Jeannot to do this confirms for me that  
the Governor did not believe Chief Jeannot had any such treaty right. Also, Chief  
Jeannot’s request for a passport indicates he also did not believe he had a treaty  
right to fish, hunt and trap in Newfoundland.  
Reaction of Governor’s Graves and Palliser  
[1058]  
The correspondence of Governor Graves in 1763 and that of Governor  
Palliser in 1764 (paras. 838-845 above) also supports the inference that British  
officials in Nova Scotia, Newfoundland and Britain did not consider the Mi’kmaq to  
have treaty rights in Newfoundland. Governor Graves believed they should be  
confined “to their own side of the Gulf”. Governor Palliser in October, 1765 noted  
Indians from Cape Breton were coming to Newfoundland to hunt and trade during  
the winter without obtaining his leave to do so. He ordered they “retire to the  
Governments to which they respectively belong”. This supports the inference that  
neither in 1765 nor in 1761 did British officials intend for Mi’kmaq to have treaty  
rights in Newfoundland.  
Reaction in London  
[1059]  
Similar support for the same inference comes from the British Board of  
Trade’s reaction to Captain Thompson’s request for permission to distribute  
presents to the Mi’kmaq (paras. 846-854 above). On May 1, 1764 the Board of  
Trade directed that “all affairs, relative to the Indians in American, whether of  
Treaty with them, or delivery of Presents from His Majesty, have been usually  
transacted by the Governor or Commander in Chief of the colony, within which  
they reside, and with which they are in connection or alliance”. The Board  
recommended that British naval officers in Newfoundland direct Indians to apply to  
the Governor of Nova Scotia for supplies. This establishes a British practice which  
makes it unlikely Governor Belcher would have ignored the authority of the  
Governor of Newfoundland in the 1761 Treaty with the Mi’kmaq. It is also post-  
treaty conduct which supports the view that the Treaty of 1761 was not intended to  
confer any rights in Newfoundland to the Defendants’ ancestors and I so find.  
7.  
[1060]  
The effect of Captain Thompson’s “Renewal”  
Captain Thompson’s letter of April 16, 1764 confirms Mi’kmaq Chiefs  
Jeannot and Bernard were aboard his ship “Lark” off the Island of Codroy in  
Page: 428  
September, 1763 “to renew a treaty of Peace with his Majesty” (para. 856 above),  
no copy of which has been found. But the letter from Governor Graves to Secretary  
of the Admiralty Stevens in October, 1763 (para. 857 above) satisfies me the treaty  
renewed was that made by General Whitmore in 1759 and not the Halifax Treaty of  
1761. I agree with Dr. Patterson that the most probable conclusion as to what  
transpired is that renewal of the Whitmore Treaty simply renewed their oath of  
allegiance to the British Crown (para. 859 above). I agree with the Defendants’  
submission that this Court “must take into account the historical context and  
perception each party might have as to the nature of the undertaking contained in  
the document under consideration.844 Also, “[t]o arrive at the conclusion that a  
person had the capacity to enter into a treaty with the Indians, he or she must thus  
have represented the British Crown in very important, authorized functions”.845 The  
Mi’kmaq may have believed Captain Thompson had the authority to convey rights  
over territory in Newfoundland. But the Defendants have not established in the  
present case (unlike Sioui) that the British officer in fact said or did anything to give  
the Mi’kmaq that impression. Indeed the weight of the evidence establishes that  
probably the only communication between the parties was that required to renew an  
oath of allegiance. There is no evidence, in any event, that Captain Thompson dealt  
in any way with the territory now referred to as the Bay du Nord Wilderness Area.  
Also, I agree with the Province that it is highly unlikely Captain Thompson would  
have been prepared to grant extensive treaty rights to fish, hunt, and trap in  
Newfoundland when he so cautiously requested prior permission from London to  
distribute presents of little value. I conclude the “Lark” incident does not entitle the  
Defendants to treaty rights to fish, hunt and trap in Newfoundland.  
8.  
[1061]  
The nature of any 1761 treaty right  
In case I have erred as to the parties to the 1761 treaty and its  
geographic extent, I shall consider now the nature of any treaty rights granted. I  
agree with the Province that this Court’s conclusions regarding the 1761 treaty with  
Cape Breton Mi’kmaq have not been determined by the Supreme Court of Canada’s  
findings in Marshall #1 and #2. The Supreme Court held the treaties concluded in  
the period 1759-1761 were local, limited in scope, and conferred communal rights  
upon specific communities (para. 792 above). The Court has also clearly stated  
844  
R. v. Sioui (1990), 70 D.L.R. (4th) 427 (S.C.C.), pp. 434-5.  
845  
The same, p. 438.  
Page: 429  
that, in the interpretation of specific treaties with specific aboriginal communities,  
the specific evidence presented in the case shall determine the outcome. Thus in  
Sundown the Court stated:  
Treaty rights, like aboriginal rights, are specific and may be exercised  
exclusively by the First Nation that signed the treaty. This interpretation  
of each treaty must take into account the First Nation signatory and the  
circumstances that surrounded the treaty.846  
And in Kruger v. R., Dickson J. noted that aboriginal title “should be considered on  
the facts pertinent to that Band and to that land, and not on any global basis”.847  
[1062]  
The evidence that the express wording of the 1761 Cape Breton  
Mi’kmaq treaty was probably similar to the wording of the 1760 La Have Treaty  
considered in Marshall #1 and #2 supports the Defendants’ argument that the 1761  
treaty with the Cape Breton Mi’kmaq granted them the same rights as those granted  
to the La Have tribe, which the Supreme Court of Canada found included the right  
to continue to obtain necessaries sufficient for a moderate livelihood through  
hunting and fishing and trading the products of those traditional activities. The  
Province has properly pointed out, however, that this Court has evidence before it  
concerning the circumstances surrounding the signing of treaties in 1761, which the  
Supreme Court of Canada did not have, including the Articles of Capitulation  
presented by Lieutenant Schomberg to the Mi’kmaq and to the French with them at  
Merigomish (para. 753 above).  
[1063]  
In Marshall #1, Binnie J., for the majority, concluded:848  
I do not think an interpretation of events that turns a positive Mi’kmaq  
trade demand into a negative Mi’kmaq covenant is consistent with the  
honour and integrity of the Crown. Nor is it consistent to conclude that  
the Lieutenant Governor, seeking in good faith to address the trade  
demands of the Mi’kmaq, accepts the Mi’kmaq suggestion of a trading  
facility while denying any treaty protection to Mi’kmaq access to the  
things that were to be traded, even though these things were identified and  
priced in the treaty negotiations. This was not a commercial contract.  
846  
847  
R. v. Sundown (1999), 170 D.L.R. (4th) 385 (S.C.C.), para. 25.  
Kruger v. R. (1977), 75 D.L.R. (3d) 434 (S.C.C.), p. 437.  
848  
R. v. Marshall (1999) 177 D.L.R. (4th) 513 (S.C.C.), para. 52.  
Page: 430  
The trade arrangement must be interpreted in a manner which gives  
meaning and substance to the promises made by the Crown. In my view,  
with respect, the interpretation adopted by the Courts below left the  
Mi’kmaq with an empty shell of a treaty promise.  
[1064]  
Binnie J. arrived at this conclusion after noting that British-drafted  
minutes of the negotiating sessions with representatives of the La Have tribe  
established that it was the Mi’kmaq who asked for truckhouses to be set up in  
response to the Governor’s inquiry whether they wished to propose any other  
particulars for the treaty. Binnie J. noted:  
It cannot be supposed that the Mi’kmaq raised the subject of trade  
concessions merely for the purpose of subjecting themselves to a trade  
restriction.849  
[1065]  
Binnie J. also found that the British saw the Mi’kmaq trade issue in  
terms of peace, noting the comment of the Crown’s expert, Dr. Patterson, who also  
testified in the present case, to the effect that “people who trade together do not  
fight, that was the theory”. Binnie J. found that peace meant avoiding Mi’kmaq  
starvation. He found the British did not want the Mi’kmaq to become an  
unnecessary drain on the public purse. He concluded to avoid that result it had been  
necessary to protect the traditional Mi’kmaq economy, including hunting, gathering  
and fishing. He stressed the same strategy of economic aboriginal self-sufficiency  
was common across Canada, noting various cases to that effect.  
[1066]  
While we do not have evidence in the present case that the Cape Breton  
Mi’kmaq specifically requested the truckhouse clause, and while the Cape Breton  
Mi’kmaq capitulation to Lieutenant Schomberg may not have left the Cape Breton  
Mi’kmaq with the same negotiating power as had been available to the La Have  
tribe, I believe the Province in the present case underestimates the significance of  
British officials in 1761entering into a treaty with the Shediac tribe (which the  
parties agree was probably the same wording as that of the Cape Breton Mi’kmaq  
treaty) in language similar to that entered into in 1760 with the La Have tribe. To  
me this indicates that the British had for strategic reasons decided to treat all  
Mi’kmaq in Nova Scotia and Cape Breton, generally in a similar fashion, whether  
the treaties were entered into when the Mi’kmaq had bargaining power or not.  
While I may not have arrived at the same interpretation of the effect of the  
849  
The same, para. 19.  
Page: 431  
truckhouse clause as did Binnie J., now that the Supreme Court of Canada has  
concluded that, as of 1760, the La Have tribe had acquired by treaty the right to fish,  
hunt and trap for trading purposes, and now that the Court has concluded the British  
search for peace with the Mi’kmaq required adoption of a strategy of aboriginal  
economic self-sufficiency, I believe a reasonable interpretation of the similar  
truckhouse clause in the Cape Breton Mi’kmaq Treaty of 1761 is that it granted a  
similar right to fish, hunt and trap for trading purposes as was granted to the La  
Have tribe. I note that this conclusion may not be necessary for my decision, in  
light of my previous finding that the Cape Breton Mi’kmaq treaty did not grant  
rights in Newfoundland. I provide it solely for the assistance of the parties in the  
event that I may have erred in my prior conclusions.  
9.  
[1067]  
Religion as a treaty right  
The treaty of 1761 clearly granted the Cape Breton Mi’kmaq the  
freedom to practice their religion. The historical record establishes that by 1761 the  
Mi’kmaq had for many years been fervent practising Roman Catholics. The  
evidence in the present case does not support the Defendants’ submission that  
Mi’kmaq religion at the time retained aspects of aboriginal spiritualism which  
required fishing, hunting and trapping rights for their expression to such an extent  
that these rights would have been in the intention of the parties when enacting the  
1761 treaty. It is reasonable to conclude the Mi’kmaq religion in 1761 retained  
some aspects of pre-contact aboriginal beliefs. But the Defendants had to provide  
more evidence to warrant a conclusion that fishing, hunting and trapping rights were  
so essential to their religious practices that the signatories to the 1761 treaty must  
have contemplated Mi’kmaq being entitled to exercise those rights wherever they  
travelled, including in Newfoundland.  
VII. EXTINGUISHMENT  
1.  
Introduction  
[1068]  
The Intervenors submit that, if it is determined the Defendants acquired  
aboriginal rights to fish, hunt, and trap on the Island of Newfoundland, those rights  
were extinguished, in relation to the Intervenors’ lands, by instruments of title  
issued by Government to the Intervenors’ predecessors, where these instruments  
apply to lands over which the Defendants claim rights.  
2.  
The Extinguishment Test  
Page: 432  
[1069]  
Recognizing the qualification expressed in the language of section  
35(1) of the Constitution Act, 1982, the constitutional provision which recognizes  
and affirms “the existing aboriginal and treaty rights of the aboriginal peoples of  
Canada” (emphasis added), courts have held that such rights may have been  
extinguished prior to 1982.850  
[1070]  
Parties invoking extinguishment, in this case the Intervenors, have the  
onus of establishing that an aboriginal right has been extinguished.851  
[1071]  
As to the legal test for extinguishment, a legislative enactment which  
demonstrates a “clear and plain intention” to extinguish aboriginal rights has been  
accepted by the courts as the principal method by which aboriginal rights could be  
extinguished prior to 1982. As enunciated by Dickson C.J.C. and La Forest J.,  
writing for the unanimous Supreme Court of Canada in R. v. Sparrow:852  
The test of extinguishment to be adopted, in our opinion, is that the  
Sovereign’s intention must be clear and plain if it is to extinguish an  
aboriginal right.  
[1072]  
Enactments need not include language which refers expressly to  
extinguishment of aboriginal rights. The necessary “clear and plain intention” to  
extinguish can arise by necessary implication from the language in the title  
documents and the legislation under which they were granted.853  
[1073]  
In Delgamuukw, the plaintiffs were Gitksan and Wet’suwet’en  
hereditary chiefs who, both individually and on behalf of their “Houses”, claimed  
850  
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 35(1); R. v.  
Sparrow (1990), 70 D.L.R. (4th) 385 (S.C.C.), 395; R. v. Gladstone (1996) 137 D.L.R. (4th) 648 (S.C.C.), 693 (La  
Forest J.); Delgamuukw v. British Columbia, note 468 above, p. 267.  
851  
R. v. Badger, note 801 above, p. 341; R. v. Gladstone, note 540 above, p. 694.  
852  
R. v. Sparrow, (1990), 70 D.L.R. (4th) 385 (S.C.C.), p. 401; see also R. v. Gladstone, note 540 above, p.  
663 (Lamer C.J.C.), p. 694 (La Forest J.), p. 707 (L’Heureux-Dube J.), and, R. v. Adams (1996), 138 D.L.R. (4th)  
657 (S.C.C.), pp. 675-676.  
853  
R. v. Gladstone, p. 664, cited with approval in Delgamukw, note 468 above, p. 271; and Osoyoos Indian  
Band v. Oliver (Town) (2002), 206 D.L.R. (4th) 385 (S.C.C.), p. 407.  
Page: 433  
aboriginal title to 58,000 square kilometres of lands situate in northwest British  
Columbia.854  
[1074]  
The majority judgment of Macfarlane J.A. in the British Columbia  
Court of Appeal’s decision in Delgamu’ukw acknowledged that the requisite “clear  
and plain intention” to extinguish aboriginal rights can arise by implication:  
In my view, the honour of the Crown, arising from its role as the historic  
protector of aboriginal lands, requires a clear and plain intention to  
extinguish aboriginal title that is express or manifested by unavoidable  
implication. Consequently, applying the clear and plain test to  
extinguishment of aboriginal rights, there can only be extinguishment by  
necessary implication if the only possible interpretation of the statute is  
that aboriginal rights were intended to be extinguished... Whether the  
intention to extinguish an aboriginal right is clear and plain must of  
necessity depend upon the nature of the Indian interest affected by the  
grant, and the nature of the grant itself.855 [Emphasis added.]  
[1075]  
In Gladstone the Supreme Court of Canada reiterated that for  
legislation to have extinguished an aboriginal right, it must be more than regulation  
of an activity. Legislation may exhibit a “clear and plain intention” to extinguish  
aboriginal rights by creating a situation that is irreconcilable with their continued  
existence. Such legislation does not have to specifically state that its purpose was to  
eliminate aboriginal rights.856 The Court confirmed this in Delgamuukw, where  
Lamer C.J.C. stated for the majority:  
While the requirement of clear and plain intent does not, perhaps, require  
that the Crown ‘use language which refers expressly to the extinguishment  
of aboriginal rights’ (Gladstone, at para. 34), the standard is still quite  
high.  
[1076]  
More recently, in Osoyoos, the Supreme Court of Canada addressed the  
question of whether or not lands taken by the federal government for a canal  
pursuant to section 35 of the Indian Act had been removed from reserve status so as  
to be exempt from assessment and taxation by the affected aboriginal band council.  
The Crown in the Osoyoos case argued that by the taking the Crown had acquired a  
854  
Delgamuukw, note 468 above, p. 251.  
855  
Delgamuukw, p. 524-525.  
856  
Note 826 above. See also: Osoyoos, [2001] S.C.R. 85, para. 57.  
Page: 434  
fee simple interest which extinguished aboriginal rights. The majority decision of  
Iacobucci J. rejected the Crown’s argument, holding that the Crown had acquired  
merely a statutory easement and the canal lands were deemed “in the reserve” for  
the purposes of taxation by the band council.857  
[1077]  
In applying the “clear and plain intention” test to the Crown’s assertion  
of the extinguishment of aboriginal interests in the reserve lands, Iacobucci J.  
acknowledged that such interests can be extinguished by implication, where clearly  
and plainly supported by context. The Crown’s argument of extinguishment in  
Osoyoos was rejected because the nature of interest acquired by the Crown was not  
a complete but rather a limited use interest in the lands in question.858  
3.  
Power of Extinguishment  
[1078]  
Before 1949 the Province of Newfoundland was not part of Canada.  
This section analyses the means by which the Newfoundland legislature had the  
power, prior to Confederation in 1949, to extinguish aboriginal rights. There were  
no pre-Confederation cases in Newfoundland that specifically addressed aboriginal  
matters. Legislation regarding aboriginal peoples was limited to a statute  
prohibiting removal of Innu and Nascapi - Montagnois from Labrador, following  
incidents where natives had been brought to exhibitions in Europe and America and  
contaced serious diseases.859  
[1079]  
Newfoundland was a unitary state, with no need to specifically allocate  
legislative powers between levels of Government, as was done for Canada in 1867:  
The Dominions, which are equal in status with the United Kingdom:  
(1)  
Unitary Dominions: New Zealand, Irish Free State,  
Newfoundland.  
857  
858  
859  
Osoyoos Indian Band v. Oliver (Town), note 828 above.  
The same, p. 414  
See Of the Protection of Esquimau and Indians, Consolidated Stats. Nfld. 1916, c. 80.  
Page: 435  
(2)  
Federations: Canada, with the Provinces of ...,  
Commonwealth of Australia.”860 [Emphasis added.]  
[1080]  
The starting point for examining the pre-Confederation legislation of  
Newfoundland is with early cases that define the authority of colonial legislatures.  
[1081]  
The most commonly cited case is Campbell v. Hall.861 Campbell, an  
English citizen owned an estate in Granada. He sued Hall, a customs collector,  
alleging that an excise tax imposed on sugar by Royal Proclamation after the  
establishment of a legislature was not properly authorized.  
[1082]  
In ruling that the second proclamation was, in effect, ultra vires, the  
Court made several determinations:  
(1)  
(2)  
The existing body of law in a conquered country, continues in  
force until altered by the conqueror.  
A conquering King has the authority to change laws in a  
conquered area, without reference to Parliament.  
(3)  
(4)  
This power is lost when a new legislative assembly is constituted.  
Once the legislative assembly was constituted, Granada was in the  
same role as the other British colonies, and only the Legislative  
Assembly, or Parliament, could impose a tax, and the second  
Letters Patent, while entirely reasonable, were void for lack of  
authority.  
[1083]  
The case is relevant to Newfoundland, as it stands for the proposition  
that the authority of the Royal prerogative ends with the initial appointment of a  
legislative assembly. While in Campbell, reference was to a conquered colony and  
the starting point for legal authority is somewhat different in a settled colony, the  
rule that the Crown has no legislative authority in its own right, from at the latest  
the establishment of a local legislature, applies a fortiori:  
‘Representative government was accorded to Newfoundland by Letters  
Patent. March 2nd, 1832, and responsible government by Letters Patent  
860  
Halsbury’s Laws of England, 2nd ed., vol. 2 (London: Butterworths, 1933), p. 7.  
861  
(1774), 1 Cowper 205 (K.B.), reprinted 98 E.R. 1045.  
Page: 436  
in 1855. Only in slight particulars has it been regulated by imperial as  
opposed to local legislation’.862  
[1084]  
The leading early case on the status of Newfoundland, is Kielley v.  
Carson, where the Privy Council stated:  
Newfoundland is a settled, not a conquered colony, and to such colony  
there is no doubt that the settlers from the mother country carried with  
them such portions of its common and statute law as was applicable to  
their new situation, and also have the rights and immunities of British  
subjects. ...the Sovereign had ... the right... of creating a local Legislative  
Assembly, with authority subordinate indeed to that of Parliament, but  
supreme within the limits of the colony, for the government of its  
inhabitants. This latter power was exercised by the Crown in favour of  
the inhabitants of Newfoundland in the year 1832, by a Commission under  
the Great Seal, with accompanying instructions from the Secretary of the  
State for the Colonial Department... .863  
[1085]  
The authority of the local Legislature within Newfoundland was  
supreme. Acts bound the Crown when so intended. See, for example, the 1854  
case of Des Barres v. Morris,864 to the effect that the Chattels Real Act, was binding  
on the Crown.  
[1086]  
The determination that Newfoundland was a settled colony was never  
questioned. In Hounsell v. Hounsell, Dunfield J. restated the proposition:  
Apart from Statute, what is the basic law of Newfoundland? This is not a  
conquered but a settled colony. When it was first reached, it was  
inhabited only by a handful of savages-though not more savage than the  
early settlers who shot them down, so that they are long since extinct.  
They had no civilized or organized polity. Thus, on well accepted rules,  
862  
Halsbury’s Laws of England, note 858 above, p. 37.  
863  
Edward Kielley v. William Carson, John Kent and others (1842) 4 Moore 63 (P.C.), reprinted 13 E.R.  
225, at 233. See also, Jennings & Long v. Hunt & Beard, [1817-28] Nfld. L.R. 220, p. 225, and Walbank v. Ellis,  
[1846-53] Nfld. L.R. 400.  
864  
[1854-64] Nfld. L.R. 79.  
Page: 437  
the settlers took with them in theory the Common Law of England so far  
as the same was applicable to their condition.865  
[1087]  
I must note here that Dunfield J.’s view on the cause of the extinction  
of the Beothuk is not universally accepted; many scholars now point to the effects  
of illness and inaccessibility to coastal resources rather than any deliberate policy to  
exterminate.866 But Hounsell correctly stated the rule relating to the reception of  
English law.  
[1088]  
In summary:  
(1) In Newfoundland there was no pre-existent body of law  
acknowledged by the courts or the legislative assembly.  
(2) English law was applied to Newfoundland.  
(3) No prerogative authority to legislate existed in the Crown.  
(4) The Legislative Assembly was “supreme within the limits of the  
colony”.  
4.  
Acts of Extinguishment in the Present Case  
(i)  
Extinguishment by Colonial legislation  
[1089]  
The Abitibi interests affected by the present claim derive from  
instruments of title issued by Government during the period 1904 to 1921; the  
Corner Brook Pulp and Paper interests from instruments issued between 1915 and  
1938.  
[1090]  
During those years, the Island of Newfoundland was a settled colony of  
the territory known as British North America. Of significance, and consistent with  
the treatment accorded to other provinces entering Confederation with Canada, the  
previous laws of Newfoundland were preserved and continued upon the admission  
865  
Hounsell v. Hounsell, [1947-49] Nfld. L.R. 310, p. 323-4  
866  
See, for example, the reference in paras. 362-364 above.  
Page: 438  
of Newfoundland to Canada in 1949. This principle is reflected in section 18(1) of  
the Terms of Union of Newfoundland with Canada, which was approved and given  
force of law by the British North America Act, 1949:  
18. (1) Subject to these Terms, all laws in force in Newfoundland at or  
immediately prior to the date of Union shall continue therein as if the  
Union had not been made, subject nevertheless to be repealed, abolished,  
or altered by the Parliament of Canada or by the Legislature of the  
Province of Newfoundland according to the authority of the Parliament or  
of the Legislature under the British North America Acts, 1867 to 1946,  
and all orders, rules, and regulations made under any such laws shall  
likewise continue, subject to be revoked or amended by the body or  
person that made such orders, rules or regulations or the body or person  
that has power to make such orders, rules, or regulations after the date of  
Union, according to their respective authority under the British North  
America Acts, 1867 to 1946.867  
[1091]  
I accept the Intervenors’ submissions that legislation of the  
Government of the Colony of Newfoundland could extinguish the aboriginal rights  
claimed by the Defendants. This follows from the supreme authority of the  
legislature within the Province. The cases which have considered the issue have  
accepted that aboriginal rights may be extinguished by way of enactments by  
Colonial governments.868  
(b) Control Over Lands  
[1092]  
In Newfoundland, legislation to control public or Crown lands was  
passed even prior to Responsible Government being accorded in 1855. An Act to  
make provision for the Disposal and Sale of ungranted and unoccupied Crown  
Lands within the Island of Newfoundland and its Dependancies, and for other  
purposes,869 read:  
867  
Act to approve the Terms of Union of Newfoundland with Canada, Stats. Can.. 1949, c. 1, reprinted  
R.S.C. 1985, App. II, No. 32, Sched., Term 18(1). See also Reid Newfoundland Co. v. Newfoundland (1982), 39  
Nfld. & P.E.I.R. 103 (Nfld.), pp. 110-111; and P.W. Hogg, Constitutional Law of Canada, Vol. 1, (updated to 2001 -  
Release 1), p. 2-16.  
868  
See the judgments of the British Columbia Court of Appeal in Delgamuukw v. British Columbia, note  
468 above, and Paul v. Canadian Pacific Ltd. (1989), 53 D.L.R. (4th) 487 (S.C.C.), pp. 505-506.  
869  
S.N. 1844, 7 Vic. c. 1, s. 19.  
Page: 439  
That from and after the passing of this act, the whole of the general and  
casual Revenues that are now derived, from and out of the Sale and  
Rentals of all Crown Lands and Ship’s Rooms within this Colony or its  
Dependancies, together with the surplus or balance remaining in the hands  
of the Receiver thereof, shall... be annually accounted for and paid over by  
the Receiver of the said Revenues into the Hands of the Colonial  
Treasurer, to be appropriated to the general uses and purposes of the  
Colony.”  
[1093]  
See also An Act to amend an Act passed in the Seventh Year of Her  
Majesty’s Reign, entitled “An Act to make Provision for the Disposal and Sale of  
Ungranted and Unoccupied Crown Lands within the Island of Newfoundland and  
its Dependancies, and for other Purposes,” and to make Provision for Granting  
Mining Licences, Leases and Grants of Mineral Lands, and for other Purposes.870  
[1094]  
Local authority in laws respecting land was complete upon, at the  
latest, the granting of Responsible Government in 1855. By the time of the most  
relevant forestry legislation, the status of Newfoundland, and other British Colonies  
was, as put in the Balfour declaration... “autonomous communities within the  
British Empire, equal in status, in no way subordinate one to the other in any aspect  
of their domestic or external affairs”.871  
[1095]  
During Newfoundland’s Commission of Government period from 1933  
to 1949, there was still a government functioning within and for Newfoundland, and  
legislation passed during this period was still binding and authoritative within  
Newfoundland. While the nature and composition of the legislative authority was  
amended, the functionality and authority of legislation when passed pursuant to the  
new system was not. The English Parliament did not assume a new legislative role  
within Newfoundland.  
[1096]  
In Reference re Newfoundland Continental Shelf, the Supreme Court of  
Canada outlined, in general, the status of Newfoundland prior to 1949 in terms of its  
sovereignty in international law. Notwithstanding the limits the Court surprisingly  
determined existed on Newfoundland’s international status as a Dominion, the case  
870  
S.N. 1860, 23 Vic. c. 3.  
871  
Halsbury’s Laws of England, 2nd ed., vol. 2, (London: Butterworths, 1933), p. 23.  
Page: 440  
recognized the internal sovereignty of Newfoundland within the British Crown.872  
[1097]  
There do not appear to be any statutory provisions of general  
application in the period up to 1949 that support an argument for general legislative  
extinguishment of aboriginal rights for the Province as a whole. This follows from  
the early determination that Newfoundland was a settled colony, with no pre-  
existent body of law recognized.  
[1098]  
In summary, the power to extinguish aboriginal title lay with the  
legislature of Newfoundland up to 1933, and with the Commission of Government  
for the period 1934-1949. There is no apparent record of aboriginal issues on the  
Island being specifically addressed by Newfoundland or the British Crown in the  
period 1933-1949.  
[1099]  
There are no sections of the 1949 Terms of Union between Canada and  
Newfoundland that address aboriginal matters.  
(iii) The Forestry Legislation  
[1100]  
The practice in Newfoundland for many years, most relevantly from  
the late 1800's until 1949, was for significant agreements entered into by  
Government and developers to be ratified and given the force and effect of law by  
statute. Rights now held by the Interveners originate in statutory arrangements.  
[1101]  
The Interveners submit that where forestry rights are held by them for  
lands under the provisions of the applicable statutory agreements, aboriginal rights,  
if any, have been extinguished by competent Newfoundland legislation.  
(iv) Nature of Intervenors’ titles  
•
Abitibi’s interests  
[1102]  
Abitibi’s timber and surface holdings, which are affected by the  
Defendants’ aboriginal rights claim, are grounded in three distinct roots of title, as  
follows:  
872  
Reference re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86.  
Page: 441  
(a) The first group of titles devolves from grants by the Crown to the Reid  
Newfoundland Company (the “Abitibi Freehold Lands”);  
(b) The second affected title devolves from a perpetually renewable  
statutory lease (the “Charter”) granted by the Crown to Anglo-  
Newfoundland Development Company Limited, a predecessor in title  
and interest of Abitibi (the “AND Charter Lands”); and,  
(c) The third type of land holding affected is land licensed from the Crown  
for the purpose of harvesting timber (the “Abitibi Timber Licenses”)873  
(The instruments grounding these real property interests are referred to  
collectively as the “Abitibi Instruments of Title”.)  
- The Abitibi Freehold Lands  
[1103]  
The courts have expressly left open the issue of whether or not Crown  
grants of fee simple interests, by necessary implication, demonstrate a “clear and  
plain intention” to extinguish aboriginal rights. In both Delgamuukw and Osoyoos,  
the majority judgments of the British Columbia Court of Appeal and the Supreme  
Court of Canada, respectively, make clear that no findings were being made as to  
the effect of fee simple titles on aboriginal interests.874  
[1104]  
Abitibi’s title to the Freehold Lands is derived from uniquely  
comprehensive grants issued by the Government of Newfoundland as represented  
by the Colonial Secretary and the Minister of Agriculture and Mines. The grants  
pertain to lands as described in Schedules and depicted in plans attached, together  
with “the woods, ways, water-courses, mines, ores and minerals of every kind.”  
They also contain broad residuary grants of “all of Our [ie. the Crown’s] estate,  
right, title, interest, trust, claim, property and demand both in law and in equity, of,  
in, to or out of the said land and premises, and every part thereof.”  
873  
The instruments grounding these real property interests are referred to collectively as the “Abitibi  
Instruments of Title.  
874  
Delgamuukw v. British Columbia, note 468 above; and Osoyoos Indian Band v. Olilver (Town), note 853  
above, 415 (S.C.C.)  
Page: 442  
[1105]  
To reiterate the finding expressed in Macfarlane J.A.’s majority  
judgment in Delgamuukw: “Whether the intention to extinguish an aboriginal right  
is clear and plain must of necessity depend upon the nature of the Indian interest  
affected by the grant, and the nature of the grant itself.”875 As previously noted, the  
Defendants claim aboriginal rights to fish, hunt and trap (for subsistence or to make  
a moderate living) in respect of lands encompassed by the Abitibi Instruments of  
Title.  
[1106]  
With regard to the analysis of the “nature of the grant itself”, it is  
noteworthy that Abitibi’s title and interest in the Freehold Lands devolves from  
grants by the Crown to the Reid Newfoundland Company. These grants were made  
pursuant to special or private Acts of the Newfoundland Legislature which were  
enacted to confirm and ratify agreements made between the Governor of the island  
of Newfoundland and Robert Gillespie Reid.876  
[1107]  
It is of further significance that such grants are extraordinarily  
comprehensive and exhaustive in respect of the property rights being conveyed by  
the Newfoundland Government. As previously indicated, all such title instruments  
include broad residuary grants of “all of Our [ie. the Crown’s] estate, right, title,  
interest, trust, claim, property and demand both in law and in equity, of, in, to or out  
of the said land and premises, and every part thereof.” Abitibi submits that such  
words of grant exhibit an intent and serve to vest absolute and complete title and  
interest in the Freehold Lands in Abitibi so as to preclude the exercise of aboriginal  
rights over such lands. Alternatively stated, and consistent with the approach of  
Macfarlane J.A. in Delgamuukw, Abitibi submits that the “clear and plain intention”  
test of extinguishment is satisfied in relation to the Freehold Lands because the only  
reasonable inference to be drawn from the granting language in the title documents  
is that the Newfoundland Colonial Government must have intended to extinguish all  
other interests in such lands, including aboriginal rights.877  
- The AND Charter Lands  
875  
Delgamuukw v. British Columbia, note 468 above.  
876  
Railway Maintenance Act, 1893, 56 Vic., 1893, Cap. 3; Transportation of Timber Act, 4 Ed. VII, 1904,  
Cap. 13.  
877  
Delgamuukw v. British Columbia, note 468 above.  
Page: 443  
[1108]  
Abitibi further submits that the perpetually renewable statutory lease  
respecting the AND Charter Lands similarly reflects a “clear and plain intention” on  
the part of the Newfoundland Government to extinguish aboriginal rights. The  
Charter lease is a renewable ninety-nine (99) year statutory lease which is  
confirmed by and granted subject to the provisions contained in An Act to  
Encourage the Manufacture of Pulp and Paper in this Colony,878 (the “Pulp and  
Paper Act, 1905”), also a special or private statute of the Colonial legislature.  
Section 6 of that legislation confirms and guarantees “title” in Abitibi’s predecessor  
to the “demised premises.” The lands and waters demised under the AND Charter  
are described in clause 1. That provision also confers upon the lessee “by way of  
grant, sale or demise, and not of exception, all timber and trees being on the said  
lands, and also all mines and minerals therein and thereunder.”  
[1109]  
By reason of the broad delineation and perpetually renewable demise  
of the lands and waters, and associated timber and mineral rights under the AND  
Charter, it is Abitibi’s submission that the “title” and interest demised by the  
Charter is sufficiently absolute so as to imply that no other persons, including  
aboriginal persons, would retain any rights over such lands during the term of the  
statutory lease.  
[1110]  
The recent decision of the Supreme Court of Canada in Osoyoos lends  
support to the argument that the rights granted under the AND Charter are, in effect,  
equivalent to a fee simple transfer by the Crown. The Osoyoos decision involved an  
Order in Council which made a grant of canal lands to the Province of British  
Columbia under section 35 of the Indian Act. The last sentence of the Order in  
Council reserved to the federal Government all mines and minerals in respect of the  
lands embraced by the grant. Both the majority and dissenting judgments suggest  
that such a reservation is an indicator of legislative intent to transfer a fee simple  
interest. By reverse implication, it is submitted that a title document, such as the  
AND Charter, which identifies not only the leased lands and waters, but also the  
minerals and timber rights demised thereunder, constitutes even stronger evidence  
of legislative intent to transfer an interest equivalent to that of a fee simple. In other  
words, it is suggested that the absence of any mineral rights reservations in the  
AND Charter provides further illustration of Government’s intent to transfer  
comprehensive real property rights to Abitibi’s predecessor, which by necessary  
878  
S.N. 1905, c. 10.  
Page: 444  
implication excludes use of the AND Charter Lands by other persons, including  
aboriginal persons.879  
- The Timber Licenses  
The Abitibi Timber Licenses are the third and final type of Abitibi real  
[1111]  
property interest asserted to be affected by the Defendants’ claims. The Abitibi  
Timber Licenses were granted under and subject to the conditions and provisions of  
Crown lands legislation in force in the Colony of Newfoundland at the time the  
licenses were issued, and the Rules and Regulations made thereunder in relation to  
the licensing of timber lands (referred to collectively as the “Crown Lands  
Legislation”).  
[1112]  
The Crown Lands Legislation applicable to the Timber Licenses is  
consistent as to the nature of the real property rights conferred under timber  
licenses. Section 25(7) of An Act respecting Crown Lands, Timber, Mines and  
Minerals,880 (the “Crown Lands Act, 1903”) is indicative of the nature of the real  
property interest conferred by the Timber Licenses. That section reads, in part:  
The license shall describe the land on which the timber may be cut, and  
shall vest in the licensee during its continuance the right to take and keep  
exclusive possession of the land so described, subject to the conditions  
herein provided or referred to; and such license shall vest in the holder  
thereof all right of property whatsoever in all trees and timber cut within  
the limit of the license during the continuance thereof... such license shall  
entitle the licensee to seize as his property, such timber where the same is  
found in the possession of any unauthorized person, and also to bring any  
actions or suits at law against any party unlawfully in possession of any  
such timber, or of any land included in such license, and to prosecute all  
trespassers thereon, and other such offenders as aforesaid, to conviction  
and punishment, and to recover damages, if any...881  
[1113]  
The conditions and provisions applicable to licenses issued under the  
Crown Lands Legislation, which are reproduced in part in each of the Abitibi  
879  
Osoyoos Indian Band v. Oliver (Town), note 853 above, pp. 412 & 443.  
880  
S.N. 1903, c. 6.  
881  
The same, s. 25(7). See also Of Crown Lands, Timber, Mines and Minerals, Consolidated Statutes of  
Newfoundland (Third Series), c. 129, s. 28(7).  
Page: 445  
Timber Licenses, offer further insight as to the real property rights granted by the  
Newfoundland Government to Abitibi’s predecessors in title. The conditions  
established under section 25(7) of the Crown Lands Act, 1903 are representative in  
this regard:  
...Provided that such license shall be subject to the right of the Governor  
in Council to grant any of the said land, exclusive of the trees or timber  
thereon, and to grant any of the said land absolutely, after the timber has  
been cut therefrom, for the purpose of agriculture or for mining, and to  
deal with the same fully and effectively for such purposes; and provided  
also, that nothing in the said license shall be construed to prevent or debar  
any person in this Colony from cutting or using any trees or timber on  
such lands for the bona fide purposes of the fisheries, for building vessels,  
for masts, for poles for erecting flakes, for fencing and for firewood, and  
such like purposes; provided further, that any person or persons may, at all  
times make and use roads upon and travel over the ground so licensed;  
and that the said license shall not be so construed as to prevent any person  
or persons from taking from the ground covered by the said license,  
standing timber of any kind (without compensation therefor) to be used  
for the making of roads, bridges, or public works, by or on behalf of the  
Government of Newfoundland, the authority of the Minister of  
Agriculture and Mines having been first obtained; and that persons  
settling under lawful authority or title on the land so licensed shall not in  
any way be molested or interrupted in clearing and cultivation by the  
licensee or any person acting for or on his behalf.882  
[1114]  
Abitibi submits that the rights and entitlements acquired pursuant to the  
Abitibi Timber Licenses issued under the Crown Lands Legislation must, by  
necessary implication, preclude the exercise of aboriginal rights over the licensed  
lands. That legislation contemplated and expressly authorized the grant of  
“exclusive possession” over the licensed lands to the licensee, with a correlative  
right to “prosecute all trespassers thereon.” In addition, courts have held that a  
timber license granted under the Crown Lands Legislation is, in effect, a lease  
which confers upon the licensee an exclusive title to the land itself. These “leases”  
confer an exclusive right of occupation over the licensed lands, “even though there  
may be restrictions in respect of the purpose for which the land may be used.”883  
882  
The same.  
883  
Phillips v. Glenwood Lumber Co. (1897-1903), 8 N.L.R. vii (appendix) (P.C.) pp. vii and ix; and  
Bowaters Newfoundland Ltd. v. Pelley Enterprises Ltd. (1973), 5 Nfld. & P.E.I.R. 233 (S.C.T.D.) pp. 240-241.  
Page: 446  
[1115]  
The Crown Lands Legislation also stipulated specific exceptions to the  
licensee’s exclusive possessory rights over the licensed lands. These exceptions can  
be condensed and summarized as follows:  
C
C
the Governor in Council could make grants of the licensed lands “for  
purposes of agriculture and mining”;  
persons in the Colony could make use of trees and timber on the  
licensed lands for purposes of fisheries, for building vessels, for masts,  
for erecting flakes, for fencing, for firewood and for like purposes;  
C
C
C
persons in the Colony could make use of the roads and travel upon the  
licensed lands;  
timber could be taken from the licensed lands if it was to be used for  
making roads, bridges or public works; and,  
the licensee could not ‘molest or interrupt’ persons who had settled on  
the licensed land under lawful authority or title.  
[1116]  
In the present proceedings, the Defendants neither claim aboriginal  
title, nor do they suggest that they, or their ancestors, have ever permanently settled  
upon Abitibi lands “under lawful authority.” More importantly, it is of note that  
the Crown Lands Legislation contained no exceptions in respect of whether persons  
in the Colony, including aboriginals, could exercise fishing, hunting and/or trapping  
rights over the licensed lands. Abitibi submits this fact assumes greater significance  
if one considers that at approximately the time of issuance of the Abitibi Timber  
Licenses, the Newfoundland Government had passed other legislation which  
recognized the need to protect certain aboriginal groups in the Colony.884  
[1117]  
It is Abitibi’s submission that the enumeration of conditions applicable  
to timber licenses issued under the Crown Lands Legislation, and the absence of any  
reference in such legislation, or in the Timber Licenses themselves, to the  
reservation of fishing, hunting or trapping rights over the licensed lands at a time  
when legislators were aware of the need to protect aboriginal persons in the Colony,  
884  
See generally, Of the Protection of Esquimaux and Indians, Consolidated Stats. Nfld. 1916, c. 80.  
Page: 447  
demonstrates a “clear and plain intention” on behalf of the Newfoundland  
Government to extinguish aboriginal rights.  
[1118]  
That the courts have recognized licenses such as the Abitibi Timber  
Licenses as constituting, in effect, leasehold interests in land further illustrates the  
exclusive possessory rights conferred by the Licences. Abitibi argues that,  
therefore, the clear and necessary implication of the Crown Lands Legislation, and  
the Abitibi Timber Licenses issued thereunder, is that the Newfoundland  
Government must have intended to extinguish all other interests, including  
aboriginal rights, over the licensed lands, with the exception of those uses as  
permitted under section 25(7) of the Crown Lands Act, 1903, and amendments  
thereto.  
[1119]  
Abitibi submits that the nature of the real property rights conferred by  
the Abitibi Instruments of Title is necessarily inconsistent, and directly conflicts  
with, the exercise of aboriginal rights over Abitibi’s lands as described in the  
Abitibi Instruments of Title. The clear implication from the language of the Abitibi  
Instruments of Title, says Abitibi, is that the Newfoundland Colonial Government  
intended to extinguish all other interests in the lands covered thereby, excepting as  
was expressly limited by their terms.  
•
Corner Brook Pulp and Paper’s Interests  
[1120]  
In the case of Corner Brook Pulp and Paper some of the relevant  
provisions of legislation confirming statutory rights in them or their predecessors in  
title include:  
-
Newfoundland Products Corporations Act, S.N. 1915, 6  
Geo. V, c. 4.  
[1121]  
Under the Act, an Agreement was entered into on April 16th, 1915 by  
the predecessor of CBPP and the Governor in Council. By section 1 of the enabling  
legislation, the Agreement was approved and confirmed; the clauses of the  
Agreement were determined to be valid and binding; and the parties were declared  
to have “full power and authority” to do all matters provided for in the Agreement.  
This legislation initially addressed chemical development.  
Page: 448  
[1122]  
lands.  
Section 3 of the Act, granted immunity from taxation for company  
[1123]  
By Section 10 of the Act, the power of the Company to expropriate  
lands contained in Section 10 of the Agreement, was confirmed.  
[1124] In the Agreement, appended to the Act, Section 15 granted the power  
to the Company to exercise its rights even if in conflict with third party rights, but  
the Company could be obliged to pay compensation.  
[1125]  
Section 16 of the Agreement imposed an arbitration regime on the  
Company and Government for instances in which the Company had adversely  
affected public or Crown rights, interests or lands.  
-
A significant revision to the 1915 Agreement was made pursuant  
to the Newfoundland Power and Paper Co. Ltd. Act, S.N. 1923,  
14 Geo. V. c.1.  
[1126]  
Part I of the Schedule to Newfoundland Power and Paper Co. Ltd. Act ,  
consisted of a June 9th, 1923 agreement between the Governor in Council and the  
Company, along with Sir W.G. Armstrong Whiteworth and Company Limited.  
This schedule dealt with construction matters.  
[1127]  
Part II of the Schedule to the 1923 Act consisted of a further agreement  
between the Governor in Council and the Company. This statutory agreement  
recited that the Company had acquired lands, timber and water rights, previously  
held by Reid Newfoundland Company, and confirmed the conveyance and demise  
of the lands and rights.  
[1128]  
Section 2 of the Act confirmed the Company’s (now named  
Newfoundland Power and Paper Company Limited) power to manufacture pulp and  
paper.  
[1129]  
Section 5 of the Act amended the 1915 Agreement to permit  
expropriation by the company of all third party rights “including all rights, (if any),  
of the Government therein”.  
Page: 449  
[1130]  
By Section 9 of the Act, “to prevent doubt” the Company was declared  
to not have exclusive rights within their holdings to game, including moose or  
caribou. The legislation confirmed that Newfoundland game laws continued in  
force on Company lands.  
[1131]  
By Section 10 of the Act, the Company was granted the right, subject  
to the approval by the Governor in Council, to make fire prevention regulations  
with the force and effect of law. The public retained the right to “fish, shoot, hunt  
and trap over the lands and timber areas.”  
[1132]  
By Section 7 of the 1923 Statutory Agreement, the Government  
agreed, upon the nomination of the Company, to appoint a Chief Fire Warden to be  
paid by the Company, who would possess “within the lands of the Company both  
freehold and leasehold... all the powers with respect to the prevention of forest fires  
and the prosecution of offences as are given to any ranger or other official under  
any act of the Legislation in reference to the prevention of forest fires.”  
[1133]  
The section continued:  
In particular he and the assistant fire wardens shall be empowered to  
patrol the forest lands of the Company and arrest all violators of the laws  
or regulations to prevent forest fires. The said Chief Fire Warden may on  
the nomination of the Company appoint assistant fire wardens who shall  
be paid by the Company and shall perform such duties as may be  
prescribed by the Chief Fire Warden and approved by the Government.  
The Chief Fire Warden and Assistant Fire Wardens shall hold office  
during the pleasure of the Government and shall be dischargeable by the  
Government or the Company.  
-
In 1927 by the International Paper Company Act, S.N. 1927, c.  
4, a new agreement was entered into between Government and  
the International Paper Company of Newfoundland which was  
acquiring the operations of the former company. The new  
company was declared, by the Agreement dated August 2, 1927  
appended to the Act or Schedule to be  
Entitled to all the rights, powers, privileges, franchises  
and exemptions vested in or owned or enjoyed by the Old  
Company under the Act and Agreement of 1915 and the  
Subsequent Acts and Agreements, and shall be bound by  
all the obligations imposed upon the Old Company under  
Page: 450  
said Acts and Agreements, except in so far as such rights,  
powers, privileges, franchises and exemptions and such  
obligations are extended, modified or otherwise affected  
by the following provisions.  
[1134]  
The Legislation approving the Agreement, which consolidated the  
earlier holdings, obligations and rights, used slightly different language than the  
1915 or 1923 legislation. Clause 1 of the Act read:  
The Agreement made between His Excellency Sir William Lamond  
Allardyce, G.C.M.G., Governor of Newfoundland and its Dependencies,  
in council, of the one part, and International Paper Company of  
Newfoundland Limited of the other part, dated 2nd day of August, A.D.  
1927, and forming the Schedule to this Act, is hereby approved,  
confirmed and adopted, and all and singular the several clauses and  
provisions thereof are hereby declared to be valid and binding upon the  
said parties thereto and each of them respectively, and to have the force  
and effect of law, and all and singular the several acts, matters and things  
therein provided to be done or performed by or on the part of the parties  
respectively are hereby declared to be proper and lawful, and the authority  
from time to time to do and perform or omit to do and perform all and  
singular the several acts, matters and things in and by the said Agreement  
provided to be done or not to be done, as the case may be, in the manner  
and with the effect and under the conditions stipulated and provided in the  
said Agreement. [Emphasis added.]  
-
Bowater’s Newfoundland Act, 1938, S.N. 1938, no. 53.  
[1135]  
On December 31st, 1938, new legislation was passed by the Governor,  
by and with the advice of the Commission of Government. This ratified and gave  
statutory effect to an Agreement made between Bowater’s Newfoundland Pulp and  
Paper Mills Limited, the successor of the earlier companies, and the Governor of  
Newfoundland.  
[1136]  
The legislation again slightly modified the wording of the enacting  
section.  
[1137]  
Clause 1 approved and confirmed the Agreement, and declared it valid  
and binding upon the parities.  
Page: 451  
[1138]  
Clause 3 stated that subject to the amendments in the Act “... all and  
singular the several clauses and provisions of the said Agreement set forth in the  
Schedule hereto are declared to have the force and effect of law for all purposes as  
if expressly enacted herein”.  
[1139]  
Clause 4 read: “Subject to the amendments above set forth , the parties  
and each of them shall have full power and authority from time to time to do and  
perform or omit to do and perform all and singular the several acts, matters, things  
and agreements in and by the said Schedule provided to be done or not to be done ...  
in the manner and with the effect and under the conditions stipulated and provided  
in the said Schedule”.  
[1140]  
The Schedule is primarily concerned with consolidation of Bowater’s  
rights; the relevant sections are 14, 15 and 16 which state:  
(14)  
(15)  
The Government hereby declares that the respective grant,  
timber licences, the water power lease and the mineral  
lease referred to in the First and Second Schedules hereto  
are valid and subsisting but does not make any declaration  
as to the accuracy of the descriptions, boundaries or areas  
set forth in any document or record relating thereto.  
The Government agrees that so far as possible adjoining  
timber areas held by the Company under existing licences  
shall be consolidated under one or more licence or  
licences in accordance with Clause 16 of this Agreement  
and that any small pieces...of unlicenced Crown  
land...adjoining any of the timber areas mentioned in the  
First or Second Schedule hereto shall be included in the  
area to be covered by any such consolidating licence... .  
(16)  
Every licence issued pursuant to the provisions of this  
Agreement shall as nearly as circumstances shall permit  
be in the form set forth in the Third Schedule hereto:  
every such licence shall operate to vest in the licensee  
during the continuance of such licence the right to take  
and keep exclusive possession of the land therein  
described subject to the conditions therein provided; and  
such licence shall vest in the holder thereof all right of  
property whatsoever in all trees and timber cut within the  
limit of the licence during the continuance thereof,  
whether such trees be cut by the authority of the holder of  
such licence or by any other person with or without his  
Page: 452  
consent; such licence shall entitle the licensee to seize as  
his property such timber where the same is found in the  
possession of any unauthorized person, and also to bring  
any actions or suits at law against any party unlawfully in  
possession of any such timber, or of any land included in  
such licence, and to prosecute all trespassers thereon, and  
other such offenders as aforesaid, to conviction and  
punishment, and to recover damages, if any, and all  
proceedings pending at the expiration of any such licence  
may be continued and completed as if the licence had not  
expired: provided that such licence shall be subject to the  
right of the Governor in Commission to grant any of the  
said land absolutely, after the timber has been cut  
therefrom, for the purpose of agriculture or for mining,  
and to deal with the same fully and effectively for such  
purposes; and provided also, that noting in the said  
licence shall be construed to prevent or debar any person  
from cutting or using any trees or timber on such lands for  
the bona-fide purposes of the fisheries, for building  
vessels, for masts, for poles for erecting flakes, for  
fencing and for firewood, and for such like purposes;  
provided further that any person or persons may, at all  
times make and use roads upon and travel over the ground  
so licensed; and that the said licence shall not be so  
construed as to prevent any person or persons from taking  
from the ground covered by the said licence, standing  
timber of any kind (without compensation therefor) to be  
used for the making of roads, bridges, or public works, by  
or on behalf of the Government of Newfoundland. The  
authority of the Commissioner for Natural Resources  
having been first obtained... .[Emphasis added.]  
[1141]  
Sections 22 and 23 authorized the Company to expropriate, without  
any form of Governmental approval any third party lands property or rights.  
Section 22 reads:  
(22)  
If the Company shall at any time or times be desirous of  
acquiring lands or property or rights therein not belonging  
to, or not in possession of, the Crown and reasonably  
required in connection with its operations in any of the  
areas mentioned in the First or Second Schedule hereto  
for any of the matters mentioned in Clause 20 of this  
Agreement and if the Company shall be unable to agree  
with the owners or occupiers of such lands, property or  
rights as to the purchase money or compensation to be  
paid therefor, (1) the Company may enter on such lands  
Page: 453  
or property to ascertain and measure and obtain the  
description of same, (2) the Company shall then notify the  
owner in writing that the said lands or property or rights  
(describing ad delimiting the same) are required and will  
be taken for the purposes of the Company and thirty days  
after the service of the said notice...” “...the said lands or  
property or rights shall vest in the Company and the  
Company may enter upon ad take possession thereof  
forthwith, (3) the Company shall make compensation to  
the owner of any lands or property or rights expropriated  
under this Clause for all damages necessarily resulting  
from the exercise of the powers given hereunder....  
[Emphasis added.]  
[1142]  
Sections 23 and 24read:  
(23)  
If in any instance the Company is desirous of exercising  
the powers of expropriation herein contained so as to  
affect the timber or mining lands or rights of any person  
or company conducting on or under such lands logging or  
lumbering operations or mining, it shall give notice in  
writing of its desire to such person or company...” “If  
such person or company objects to such expropriation he  
or it shall give to the Company notice in...and the  
objection shall be referred to arbitration in manner  
hereinafter provided and if the arbitrators find;  
(a)  
(b)  
that the lands are needed by the Company...; and  
that its purposes cannot be as well served without increased  
expense or considerable inconvenience to the Company as by the  
expropriation of the said lands; and  
(c)  
that is upon the whole expedient in the public interest that the  
Company shall be allowed to expropriate the said lands;  
the Company may enter and take such lands, and the same arbitrators shall  
proceed to assess the amount to be paid or compensation to be given, and  
upon payment thereof the said lands or rights shall best in the Company.  
(24)  
All property of the Company within the area of any towns or  
settlements established by the Company shall be exempt from  
municipal taxation.  
[1143]  
The Company was granted the Power to make regulations by Section  
34 of the Agreement:  
Page: 454  
(1)  
The Company shall have the power (subject as hereinafter mentioned) to  
make regulations having the force of law applicable within the area of  
every such town or settlement and within a protective area of 10 square  
miles to be selected by the Company adjoining the same and any further  
area which on the request of the Company the government may consider it  
advisable to include therein, for dealing with the following classes of  
subject;  
(a)  
(e)  
(f)  
(g)  
(h)  
(i)  
Controls of building,  
Water supply,  
Fire protection,  
The keeping of animals,  
Public health general,  
Closing hours of shops,  
(j)  
Any other subjects which `may from time to time at the request of  
the company be assigned to the Company by the Government.  
(2)  
Such regulations may prescribe penalties recoverable  
before a court of summary jurisdiction for the violation of  
any of the terms thereof and all regulations shall be  
subject to the prior approval of the Government and shall  
come into force on such date or dates as may be  
prescribed by the Government, who may at the same time  
direct that any portion of the protective area which is not  
owned by the Company shall be excluded from the  
operation of any or all of such regulations. Provided  
however that the Government may require the Company  
at any time to revoke or vary any regulations made  
hereunder and in default of compliance with such request  
the Government may revoke or vary such regulations by  
notice published in the Newfoundland Gazette.  
•
Status of CBPP Licences  
[1144]  
A number of changes have occurred after Confederation, but are not  
relied upon by the company in support of extinguishment.  
[1145]  
It should be noted that while some of the legislation and documents  
refer to providing authority for issuing licences, forestry licences in Newfoundland  
are in many instances actually leases, with exclusive possession of the land being  
passed. The question is not one of words, but “of substance”.  
Page: 455  
[1146]  
In the case of Phillips v. Glenwood Lumber Co.885, the Privy Council  
determined that words granting a right to take and keep exclusive possession,  
subject to conditions recited in an act, and to bring action to prosecute trespassers  
and recover land, was sufficient to pass title to the land by the licence, in effect  
making it a lease.  
If the effect of the instrument is to give the holder an exclusive right of  
occupation of the land, though subject to certain reservations or to a  
restriction of the purposes for which it may be used, it is in law a demise  
of the land itself.  
[1147]  
Typical timber licences would be granted under the provisions of the  
Crown Lands, Mines and Minerals Act886, the relevant provisions of which include:  
(28)  
All licences [timber] shall be subject to the following conditions...  
(7)  
The licence shall... vest in the licencee during its  
continuance the right to take and have exclusive  
possession of the land... such licence shall vest in the  
holder thereof all right of property whatsoever in all trees  
and timber cut... .  
[1148]  
See also Newfoundland Power and Pulp Co. Ltd., v. The Anglo-  
Newfoundland Development Co. Ltd.887, which decided that Crown timber licences  
are “...in effect leases.”  
•
Summary of CBPP’s Position  
[1149]  
Corner Brook Pulp and paper submits the rights granted under the  
legislation referred to above, are fundamentally inconsistent with the continued  
existence of any aboriginal rights to forest resources. They grant to the  
predecessors of CBPP the right of expropriation of private lands; a higher level of  
right than exists in other cases. The power to make and enforce subordinate  
legislation in reference to its trees is unique, in effect constituting the Company as a  
885  
Phillips v. Glenwood Lumber Co., [1897-1903] 8 Nfld. L.R. vii at viii (appendix) (P.C.).  
886  
Consolidated Stats. Nfld. 1916, c. 129.  
887  
[1912-1920] Nfld. L.R. 7, p. 13 (C.A.).  
Page: 456  
fourth order of Government, says CBPP. The ability to acquire Crown lands by  
statutory right, removing any vestige of discretion, left CBPP’s predecessors in title  
in a position unlike normal holders of rights under legislation.  
[1150]  
The reservation of rights for the public to game and trapping stand in  
contrast to the forestry rights. CBPP contends that if the Legislature intended  
residual rights for third parties this language would be unnecessary. The extent of  
Company rights is illustrated by legislation stipulating that public game laws still  
apply. The rights in the 1923 legislation are striking examples of the degree to  
which the Company’s rights are exclusive.  
[1151]  
CBPP argues the legislation that was passed granting rights and  
immunities to CBPP’s predecessor, was, in the context of a settled colony and the  
case law that established the framework for such legislation, comprehensive and  
irreconcilable with continuing aboriginal rights. The Company says there was no  
legal basis in Newfoundland for advancing any aboriginal title at that time, and  
therefore no reason to specifically refer to the termination or extinguishment of  
those rights since pre-Confederation Newfoundland law was that no such rights  
existed.  
ANALYSIS  
[1152]  
I need not decide whether the actions and legislation of Colonial  
governments in Newfoundland had the effect of extinguishing Mi’kmaq aboriginal  
or treaty rights, because of my decision that no aboriginal or treaty rights exist. The  
following comments are made solely for the assistance of the parties.  
[1153]  
I agree with the Defendants that proclamations or actions of the  
government of the Colony of Newfoundland could not extinguish aboriginal rights.  
That could only be done by legislation which either expressly or by unavoidable  
implication exhibited a clear and plain intent to extinguish such rights.888  
[1154]  
The evidence clearly establishes that the governments of  
Newfoundland, both before and after Confederation with Canada, did not consider  
888  
See, Delgamuukw, note 468 above, and Osoyoos, note 853 above.  
Page: 457  
the Mi’kmaq to have any aboriginal rights within Newfoundland. The question  
accordingly arises whether any form of legislation, without expressly doing so,  
could be construed in these circumstances to exhibit a clear and plain intent to  
extinguish aboriginal rights. As previously noted, I need not decide this issue. I  
will note, however, that if any legislation can in these circumstances meet the test of  
“unavoidable implication”, it would appear to be that of Abitibi, which by the  
uniquely comprehensive and exhaustive nature of the language used in the grants  
and licences exhibits an intention to vest absolute and complete title and interest in  
Abitibi, to the exclusion of all others, including aboriginals.  
[1155]  
Thus, in the case of the Abitibi Freehold Lands, the grant of all the  
Crown’s “estate, right, title interest, trust etc.” in lands together with “the woods,  
ways, water-courses, mines, ores and minerals of every kind”; in the case of the  
Abitibi Charter Lands, the reviewable 99 year lease confirming and guaranteeing  
“title” and conferring “by way of grant, sale or devise, and not of exception, all  
timber and trees being on the said lands, and also all mines and minerals therein and  
thereunder”; and in the Abitibi Timber Leases, granted subject to the Crown lands  
legislation in force from time to time, vesting in the licence “the right to take and  
keep exclusive possession of the land”, vesting “all right of property whatsoever in  
all trees and timber” and authorizing prosecution of “all trespassers”, with  
reservation to the Crown of the right to grant cut-over land for agriculture or mining  
and to use timber for public works and reservation to the public of the right to cut  
timber for the fisheries, for fencing and for firewood and like purposes; would  
appear by necessary implication to preclude the exercise of aboriginal rights over  
the Abitibi lands.  
[1156]  
In the case of Corner Brook Pulp and Paper, the situation is not as  
clear, because of the conditions in sections 9 and 10 of the 1923 amendment to the  
1915 statutory agreement which preserved for the public the right to “fish, shoot,  
hunt and trap over the lands and timber areas”. The question arises whether a  
possible interpretation of this is that aboriginal rights to fish, shoot, hunt and trap  
(and the incidental right to have shelter for exercise of these rights) is preserved as  
part of the public right, a question I need not now answer.  
SUMMARY AND DISPOSITION  
A.  
Aboriginal Rights  
Page: 458  
1.  
2.  
The ancestors of the Mi’kmaq of Conne River arrived on the Island of  
Newfoundland some time after 1550 A.D., by which time European  
contact and influences prevented their fishing, hunting and trapping  
practices from attaining the status of aboriginal rights.  
Even if the Mi’kmaq ancestors were present on the Island of  
Newfoundland before European contact, the Defendants have not  
proven on a balance of probabilities that they then fished, hunted or  
trapped in the territory now known as the Bay du Nord Wilderness  
Area.  
B.  
Treaty Rights  
1.  
The 1725 treaty ratified at Annapolis Royal in 1726 by Mi’kmaq  
representatives, by its express terms did not apply to Newfoundland; it  
should in any event be interpreted as restricted to territory within the  
jurisdiction of the Governor of Nova Scotia; and in any event it was  
terminated by subsequent hostilities between the Mi’kmaq and the  
British.  
2.  
The 1752 treaty signed by the Governor of Nova Scotia and the Chief  
of the Shubenacadie Mi’kmaq Band applied only to the territory of that  
Band and not to Newfoundland and in any event was terminated by  
subsequent hostilities.  
3.  
4.  
The Defendants have not established that the 1759 Schomberg -  
Whitmore treaty involved anything more than an oath of allegiance by  
the Mi’kmaq to the British Crown.  
The Defendants have not established the Halifax Treaty of June 25,  
1761, signed by the Chief of the Cape Breton Mi’kmaq Band, and the  
Lieutenant-Governor of Nova Scotia, applies to Newfoundland since  
the express terms of a treaty probably similar to the missing Cape  
Breton document confines its application to Nova Scotia; it should in  
any event be interpreted as restricted to territory within the jurisdiction  
of the Governor of Nova Scotia, and in any event it would not apply to  
territory on the Island of Newfoundland where Cape Breton Mi’kmaq  
only infrequently fished, hunted and trapped up until 1761.  
The renewal of a treaty with Cape Breton Mi’kmaq by Captain  
Thompson aboard the Lark in September, 1763 was a renewal of the  
5.  
Page: 459  
oath of allegiance to General Whitmore and did not involve rights to  
fish, hunt or trap.  
C.  
[1157]  
Extinguishment  
In light of the above conclusions, the Court need not determine  
whether legislation of the Crown in the Colony of Newfoundland before  
Confederation with Canada in 1949 extinguished aboriginal or treaty rights. But a  
question arises whether Crown legislation could demonstrate a clear and plain  
intention to extinguish Mi’kmaq rights when the Crown at the time did not consider  
such rights to exist in Newfoundland.  
D.  
[1158]  
Disposition  
The Crown shall have an order pursuant to s. 30(b) of the Lands Act,  
S.N. 1991, c. 36, that the Defendants are wrongfully in possession of Crown lands  
and that the Defendants’ cabins must be removed from the Bay du Nord Wilderness  
Area.  
L. BARRY, J.  


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