Toma Young Closes the Circle

When Justice Claire MacLellan presided over the first Supreme Court hearing ever held on a Mi'kmaq reserve last Friday, the event marked the closing of an historic circle dating back 74 years.

Or perhaps it would be more accurate to say 249 years.MacLellan was at Eskasoni, Nova Scotia's largest native community, to call Tuma Young to the bar. A graduate of the University of British Columbia Law School who articled at Patterson Palmer Hunt Murphy, Young is the first fluent speaker of Mi'kmaq admitted to the bar.

Young, 35, leaves next month for a year at the University of Arizona's Indigenous Law and Policy Program, where he will clerk for a judge of the Navajo Tribal Court while preparing a master's thesis on"Rediscovering Mi'kmaq Legal Concepts using the Mi'kmaq Language." He will return to Nova Scotia next year as an associate at Patterson Palmer and an important addition to Nova Scotia's growing cadre ofAboriginal lawyers.

It almost didn't happen.

Young found the first days of law school terrifying. Fellow studentstraded horror stories about the workload they would face, the hundreds of pages of legal texts they would have to read and assimilate daily.

"I was filled with self-doubt," he recalled. "All my life, I had been hearing people tell me 'You can't do that.' I think I almost believed it."

One night, Young paced back and forth in his apartment, staring at the stack of case books he was supposed to be reading. He wanted to quit.

"If I do quit," he told himself, "it means they've won."

With that thought, Young opened the case book for a course in Aboriginal Legal Perspectives. His eyes lit upon the first case, a 1928 decision of the County Court of Nova Scotia, Rex v. Syliboy.

He started to cry.

The late Grand Chief Gabriel Syliboy was Tuma Young's great-grandfather. On November 4, 1927, while hunting at Askilton, Inverness County, he was charged with illegal possession of 14 muskrat pelts.

A magistrate found him guilty, but Syliboy appealed to the County Court. He argued that the Treaty of 1752 guaranteed his right to hunt and trap.

According to York University historian Bill Wicken, theSuperintendent of Indian Affairs underwrote the appeal, hiring a pair of senior Sydney lawyers and paying a series of native witnesses to travel from Membertou and Eskasoni to the courthouse at Port Hood, where they recounted their traditional understanding of the treaty's meaning.

To hear the case, said David Bell, professor of law at the University of New Brunswick, the province brought in Acting Judge George Patterson, son of Rev. George Patterson, a renowned historian and Presbyterian minister from Pictou County. The younger Patterson, an amateur historian and author of an undistinguished History of Victoria County, took a keen interest in the testimony.

On September 10, 1928, he ruled the Treaty of 1752 invalid on several grounds. Though its signatories included two Cape Breton Mi'kmaq, Patterson concluded that it applied only on the mainland. Even there, it had never been validated by parliamentary enactment. But most jarringly to our ears, Patterson found the treaty invalid because the Mi'kmaq, as savages, were not competent to sign it.

"Indians were never regarded as an independent power," he wrote. "A civilized nation first discovering a country of uncivilized people or savages held such country as its own until such time as by treaty it was transferred to some other civilized nation. The savages' rights of sovereignty, even of ownership, were never recognized."

Having made a big show of underwriting the defence, the Superintendent of Indian Affairs declined further appeal. Wicken suspects that's because the bureaucrats' real goal was to decisively dispose of Native treaty claims. The reason: to appease local whites upset over out-of-season native hunting.

For 50 years, Rex v. Syliboy reigned as the leading Canadian case on Native treaties. It was not repudiated by the Supreme Court of Canada until R. V. Simon, a 1985 decision involving another Mi'kmaq, arrested with a hunting rifle near the Shubenacadie reserve.

One of 14 children of Fred and Mary (Siliboy) Young, Tuma spent his childhood summers hunting, fishing, and gathering berries with his parents at Malagawatch on the Bras d'Or Lakes. He took his BA in Mi'kmaq studies at the University College of Cape Breton, where his focus was ethno-botany.

Though he often heard his father speak of Gabriel Syliboy's case, hehad no thoughts of law school until Patrick Johnson, a Mi'kmaqprofessor, dragged him along to a recruitment meeting for Dalhousie'sIndigenous Black and Mi'kmaq program. Johnson signed him up for theLSATs, and Young soon found himself sorting through competing offersof admission.

"Every Mi'kmaq has had an experience of being treated differently, ofracism," he said. Reading Patterson's words in his Vancouver apartment, "It all came back."

"Part of my job studying Aboriginal law is to change that, so those words will never be spoken again by a judge."

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