Dalhousie Law Journal


Jonathan Belcher, legal history, aboriginal, treaty, rights, title claims, Nova Scotia, Mi'kmaq, Proclamation, New Brunswick, court of appeal


History occupies a central place in aboriginal rights litigation. As a result, the circumstances and characters of the distant past play crucial roles in the adjudication of aboriginal treaty, rights and title claims. One such character is Jonathan Belcher. the first chief justice and former lieutenant governor of Nova Scotia. In 1762, Belcher issued a Proclamation reserving the north-eastern coast of Nova Scotia (and what Is now the eastern coast of New Brunswick) for the Mi'kmaq. In R. v Bernard, the accused pleaded a right to log timber on Crown land on the basis of Belcher's Proclamation. This article argues that in rejecting the legal validity of the Proclamation, the New Brunswick Court of Appeal failed to recognize and grapple sufficiently with the historical circumstances surrounding the Proclamation's issuance and later slide into obscurity The article contends that in adjudicating contemporary aboriginal constitutional claims, courts must remain sensitive to the complexities and nuances of this period of Maritime history in order to avoid the pitfalls inherent in a narrow legal analysis of the past