i'm still learning about this. a single course in aboriginal law does not an expert in the topic make. of the courses i took in my time formally studying constitutional law, though, it set off the deepest interest.
debates over how to approach these treaties and/or resist imperial authority are pretty similar to activist debates, in general. so, diversity of tactics. ok. but i've noticed a serious problem: those that want to work within the system of british law tend to want to bring in these analyses that make little sense within it's framework, and then get upset when the court dismisses them. if you're going to try and work through the british legal system, it's necessary to recognize that the historical understanding that it presents to this whole thing is drastically different than that that is presented by activists. activists can't just show up in court with a completely different concept of history and expect the court to side with them. so, we should have a debate about which is more correct, one may suggest. unfortunately, the british legal system doesn't give people at our level that kind of authority - the british legal historical context is defined by decisions that are made in parliaments, or, in the case of aboriginal law, often even by monarchs. and don't forget case law. arguing a case at this level is about interpreting the laws that the aristocrats make, not rewriting them; that interpretation then becomes put aside for future use.
so, fuck the system? well, ok. but for those that want to work in it, that contradiction sort of needs to be addressed to prevent themselves from wasting their time.
regarding the new brunswick dispute, there was, in fact, a treaty signed in 1760 by the group in question. now, you have to get the context of this right to understand the way the law is going to interpret this. france and britain had just ended a war that would give britain control of what would become eastern canada. the indigenous populations of the region had supported france in this war. that means that, from a british legal perspective, the indigenous people of eastern canada were *conquered* at the end of the "french and indian" war. why conquered? because they were aligned with the french, and the french were conquered. the treaties that followed were written within this context of being conquered.
the conquering part is huge within a british legal context. british imperial law in this context is rooted in roman imperial law. how far-reaching is the influence of the monarch (and then later of parliament)? the rule is that if a population is composed of "settlers" (like the american colonies, or australia) then they take british law with them, but if a population is composed of "conquered people" (like india or canada) then they keep their own laws, so long as those laws didn't interfere with the imperial administration. and, so quebec retained a roman civil law system rather than a british case law system, just as the romans allowed their conquered peoples to worship their own gods.
the particular treaty was not a land treaty, it was a friendship treaty. there are two reasons for this.
the first is that the indigenous signatories did not accept euro-centric concepts of land ownership. please decrypt that sentence carefully and purposefully. there were concepts of communal land ownership, and of land use, and of land sharing, but the idea of kicking the europeans out of "their" land would have been foreign to the indigenous peoples of the region, at the time. there were isolated exceptions (the six nations apparently had more european concepts of land ownership), but none in the maritime area. the view was more or less along the lines that nations could migrate through the land as they desired so long as they didn't prevent other nations from using it. (you'd end up with multiple tribes and nations *sharing* "hunting areas"). so, they sought no land treaty because they themselves would have rejected the concept of land ownership.
the other is that the land issue was already dealt with - the indigenous people, of course, being conquered in the seven years war, from the british perspective, and thus coming under their rule (but allowed to keep their laws and customs, which ironically included this rejection of land ownership). what was there to discuss on that point? what land treaty would a conquered people sign off on?
the treaty was about trade. on the indigenous side, the populations needed access to certain types of european goods - most importantly ammunition, for hunting. on the british side, they wanted to prevent uprisings, which they considered bothersome in the sense that they disrupted trade routes.
now, these treaties are in a perilous legal position. trudeau once claimed they weren't worth the paper they were written on, and he was right - legally. some of them weren't even written on paper, they were passed down orally. we've since had a constitutional overhaul. in theory, the contents of these treaties are legally binding (up to a set of convoluted caveats i'm going to ignore for right now), but they haven't been upheld in court yet. given past precedent, it's likely that the court will uphold individual rights while ignoring communal ones. yes, those fucking liberals...
that's not to say that a modern treaty isn't something that should happen. personally, i think that's along the right line of thinking, at least, although i don't like the xenophobia of ethnic nationalism. however, the legal position of the maritime groups is starkly different than those in british columbia or in the far north, or even in ontario. this claim of sovereignty has little chance of success within our court system.
here's something else to read:
http://etc.lib.unb.ca/acva/contestedterrain/sites/default/files/patterson_nsr_2009.pdf