Academic journal article University of New Brunswick Law Journal

A Commercial Harvesting Prosecution in Context: The Peter Paul Case, 1946

Academic journal article University of New Brunswick Law Journal

A Commercial Harvesting Prosecution in Context: The Peter Paul Case, 1946

Article excerpt

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. …

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