Breathing New Life into Treaties: History, Politics, the Law, and Aboriginal Grievances in Canada's Maritime Provinces

Abstract

The 1999 Supreme Court of Canada decision in the case of R. v. Donald Marshall Jr. brought about a dramatic change in Aboriginal (First Nations) fishing and harvesting rights in Canada's Maritime Provinces. Marshall argued that a series of eighteenth-century treaties signed between the Mi'kmaq and the British government guaranteed his right to fish for commercial purposes. The British and, later, the Canadian governments accorded little priority to these treaties, despite repeated protests by the Mi'kmaq. The Supreme Court's decision caught most observers by surprise, particularly because of the sweeping provisions it made for Aboriginal participation in the commercial fishery. Political controversy followed, sparked by the absence of decisive action by the federal governement, by the First Nations' determination to commence commercial fishing and by growing anger at judicial activism by the Supreme Court. The resulting tensions exacerbated long-standing ethnic tensions in the region. The Marshall decision represented a major turning point in Aboriginal harvesting rights in Canada. The Supreme Court's judgment gave new power to treaties that non-Aboriginal governments had chosen to ignore. At the same time, the decision provided Aboriginal Maritimers with assured access to important fisheries (particularly the lucrative lobster trade) and therefore a key role envolving regional economy