A commercial harvesting prosecution in context: the Peter Paul case, 1946.

• Author: Bell, D.G.
• Position: Canada - Special Forum: Perspectives on R. v. Marshall; R. v. Bernard

In 1946 Peter Paul, a Lower Woodstock Malecite, was convicted in Magistrate's Court of theft of ash saplings. Had he appealed his conviction the resulting case report would have entered the law books as New Brunswick's first considered adjudication of Maritime treaty rights. But Paul abandoned his appeal, and so the episode passed into obscurity.

In an earlier essay I showed how the dominant culture, having gained the long-sought Maritime peace treaties in the 18th century, proceeded to disregard their significance for Amerindians in the 19th century. (1) The present offering takes the Peter Paul case as a context for extending this exploration of treaty knowledge into the mid 20th century. Paul's conviction may be only an historical footnote but it brought into conjunction two ideas of great importance, Malecite dispossession and Malecite entitlement. By dispossession I mean that this 1946 case was the precise historical moment when the long process of dispossessing the Malecites became complete. For nearly 200 years the dominant society had used the machinery of the state to take things away from the Malecites. Prosecution and conviction of Peter Paul for something as trivial as harvest of ash saplings marked the final act of this taking process. By a remarkable symmetry the Peter Paul case was also the first occasion when someone--it was the extraordinary Tappan Adney--researched an argument for aboriginal entitlement. Although it would not be until 1999 that the Supreme Court of Canada finally embraced the view that Maritime aboriginals had ancient treaty rights still operating in the modern world, that idea began its modern New Brunswick life half a century earlier in Peter Paul's case. (2)

The Dispossession Context

In the course of a long life Peter Louis Paul (1902-1989) gained renown as a consultant on the language, ethnology and craft of Malecites, the St John valley tribe of Amerindians. He resided on a small reserve in the lower part of the parish of Woodstock, in western New Brunswick. This Lower Woodstock reserve is near and yet distinct from Medoctec, one of the principal Malecite encampment sites in traditional times. Paul never lived at Medoctec, which had long been in private hands and in the 1960s was flooded by the headpond of a hydroelectric dam, but the site's fate illustrates vividly the Amerindian dispossession that is necessary background to understanding his 1946 harvesting prosecution.

The Medoctec site was located where what is now called Hay's Creek debouches into the St John River. (3) Here commenced the ancient portage and canoe route between the St John valley and both Passamaquoddy Bay and the Penobscot River. Here Malecites maintained a council fire and constructed a stockade, probably for protection against raiding Mohawks; and here, from 1717 to 1767, stood the first Christian chapel in what is now New Brunswick. Medoctec was remote from the Atlantic coast. During the French regime in Acadia, and even after the entry of English-speaking settlers into the St John valley in the 1760s, it was never within 100 kilometres of the advancing settlement frontier. About the only English speakers who reached the place in pre-Loyalist times were captives. (4) Occupation of the site was seasonal, during the warmer months. In the mid 18th century there may possibly have been an attempt by some Malecites to settle year round in the vicinity of the Medoctec chapel; if so, the number of permanent settlers was small. (5)

It was the arrival of thousands of American Loyalists into the St John valley in the 1780s that brought Medoctec within the settlement frontier. While Medoctec appeared as a place-name on government maps held at Halifax, officials at Saint John conducting the lottery that divided the central St John valley into settlement blocks for the disbanding Loyalist regiments can have known of it only as a rumour. Consequently they made no attempt to exempt the ancient campsite from allocation. The vicinity of Medoctec fell within the block drawn by the 2nd DeLanceys, who occupied the neighbourhood beginning in 1784. In their collective land grant, issued first under the authority of Nova Scotia and then by the newly-separated colony of New Brunswick, the site fell between two lots. Whether settlers actually took up these lots at this early date is not known. Certainly Medoctec would have seemed an advantageous spot both for the presence of the abandoned but still-standing chapel and because it contained many cleared acres, where Malecites had grown corn for generations. Be that as it may, there is no evidence of an immediate collision between settlers and Malecite claimants, and one historian has speculated that the Malecite withdrew away from the Loyalists, into the upper St John valley. However, late in the 1780s an English Anglican charity opened a school for Malecites near Medoctec. It was situated a few kilometres upriver, near a spot that, decades later, would become the Woodstock Indian reserve. The school ran for only a few years, just until 'white' settlers were well established, but during that time it distributed provisions to about 100 Amerindian families, numbering more than 300 souls. (6) It is natural to suppose that some of these Malecites camped at least temporarily near the school and for that purpose used, or attempted to use, the traditional Medoctec site.

At some point the Malecites did assert their claim to Medoctec. This must have caused tensions and apprehensions in the whole settler community. Concern was sufficiently strong that the central government at Fredericton decided to restore it to its aboriginal claimants. One witness to the parlay that communicated this to the Malecite was the 16-year-old son of the Crown's representative. Years later he recounted the proceeding. As paraphrased by others, his words took on a fanciful colouration:

With a view to extend the settlement of the country, two commissioners were sent from Halifax [sic] to make a treaty with the Indians. They were poled tip the [St John] river by two men in a canoe from Fredericton. Approaching the Meductic [site] at nightfall, they became alarmed at the huge fires burning near the fort [the old Malecite stockade] and the unearthly yelling of the semi-nude Indians dancing around them. Passing quietly by, on the opposite side of the river, they proceeded to the house of my lather (J. Bedell, Esq), a few miles farther on, where they were entertained tbr the night. On the following day I was permitted to accompany my father and the commissioners to the fort. Arriving at the entrance, the commissioners made known the object of their visit. Presently a number of stalwart men presented themselves, dressed in gorgeous attire. After salutations, the commissioners asked: "By what right or title do you hold these lands?". A tall powerful chief, standing erect, and, with the air of a plumed knight, pointing within the walls of the fort, replied: "There are the graves of our grandfathers! There are the graves of our fathers! There are the graves of our children!" (7) Even absent corroborating documentation, one would judge the dramatic reference to graves as literally correct, for that is just the sort of vivid detail that a witness would remember. While none of the rest can be accepted as accurate in a literal sense, from the whole one can infer: that Malecites were claiming Medoctec, that the settler community was alarmed, and that government responded by sending someone to reach an accommodation.

One need not rest with inferences and speculations, however, for this transaction is documented. A collection of manuscripts on "Indian" affairs that Lord Beaverbrook presented to the University of New Brunswick in the 1950s includes this 1807 treaty pertaining to Medoctec. (8) It identifies its parties as the Crown, as represented by local magistrate John Bedell "for this purpose duly authorized", and "the Indians of the River St John commonly called and known by the name of the Milasite Tribe represented by those [eleven males] who have subscribed and sealed this Instrument and who alledge that they are duly authorized to agree for the whole". It recites the tribe's long possession of the site and the Malecite wish to continue to cultivate it and make a village there. Government considered these assertions as valid historically and the present claim to be "founded in equity", and it promised to acquire the two lots in question. Then it would "appropriate" to the Malecites a tract measuring 200 rods along the river and half a mile in depth "for the sole use of the said Indians and their Posterity forever". This promised appropriation was subject to certain conditions, including that it would satisfy all claims that Malecites might have to land along the St John River and that Malecites would not dispose of any part of the site without Crown permission. Bedell and the eleven Amerindians signed duplicate originals, one copy of which, following Crown ratification, was to be returned to the Malecites. (9)

Analyzing the legal standing of this 1807 treaty and tracing minutely the further history of the Medoctec site, including how nearly the Crown kept its promise, are not the present concern. It is sufficient to say that ownership of the site became contested once again, so that by 1841 the province's first Indian commissioner found only 29 Malecites in residence. Moses Perley thought the place:

"shamefully neglected, and almost a public common. It was stated to me that they had at first 113 rods in front on the River, and that their land run back three miles continuing the same breadth. That they had a writing signed by Governor Carleton [sic], which some years ago was left at the Crown Lands' Office, and they have not seen it since. That latterly one Peter Watson has taken possession of a considerable portion of their land by virtue of a Grant or Licence as he alleges, and they now have...