Emancipation as Oppression: The Marshall Decision and Self-Government

Abstract

The Decision It was August 1993, and for a second time the name Donald Marshall Jr. would be associated with a court decision in Canada. History was set to repeat itself. Once a symbol of justice miscarried, Donald Marshall Jr. was setting in motion the most important Aboriginal treaty rights case in Eastern Canada, for on that day in August he was arrested for catching 210 kilograms of eels in Pomquet Harbour and selling them for $787.10. Charged with fishing without a license during a closed season, he argued that as a Mi'kmaq he was exercising his treaty rights under the eighteenth-century Peace and Friendship treaties. The case was finally heard by the Supreme Court of Canada, and the decision of that court was released on 17 September 1999, with a further clarification on 17 November of that year. Citing primarily the treaties of 1760-61, the court ruled that Mi'kmaq and Maliseet peoples had the right to hunt, fish, and gather, and to sell their products to make a moderate livelihood. Although the Mi'kmaq and Maliseet people would not now own all the resources, they could access them subject only to limitations justified by conservation needs or other pressing public objectives (Coates 2000, 3-7; INAC 2001; R. v. Marshall #1 1999, § 7) The Supreme Court decision was hailed as a historic breakthrough by Aboriginal peoples. The right to provide a reasonable living for oneself and one's family by directly accessing resources seemed to many to be a significant step in reversing centuries of dispossession and impoverishment. The decision had come shortly after the New Brunswick case of Thomas Peter Paul, who was tried in 1997 for harvesting wood for commercial purposes. The first decision in favour of Thomas Peter Paul was upheld a year later at the Court of Queen's Bench, only in the end to be overturned in 1999 by the New Brunswick Court of Appeal (R. v. Thomas Peter Paul 1996, 1997, 1998). The result, though, despite the eventual defeat, was the expectation that a treaty right to commercial resource gathering existed and would soon be a reality. Both cases prompted Mi'kmaq and Maliseet fishers to purchase the necessary gear and begin to make a living for themselves. Ken Coates wrote in The Marshall Decision and Native Rights of the new optimism that provincial governments appear to be genuinely committed to new resourcesharing arrangements that have real potential to add to the economic sustainability of First Nations (2000, 164). Although he tempered this judgment in his conclusion by drawing attention to the legacy of bitter words and nasty actions, especially around Burnt Church, where the worst violence against Aboriginal fishers occurred, Coates nonetheless saw evidence in the bureaucratization of the process of negotiating agreements with reserves that progress was being made (205-206). Now that ten years have passed, the effects of the Marshall decision can be seen. By exploring the aftermath of the Marshall decision, this essay inquires into the effects that the subsequent agreements between Fisheries and Oceans Canada and the various reserve communities have had both on the attempts to preserve traditional forms of life and on the ongoing governance of reserves. Specifically, I will argue that the fishing agreements have created economic opportunities and jobs at the cost of further eroding traditional political and economic practices, by replacing the direct access to resources provided for by Marshall (and consistent with traditional economic practices) with a system of limited and regulated access. Under these agreements, the management of access will rest with the chief and council. The federal policy of self-government over the past three decades has been to increase the power of the chief and council by devolving areas of authority. The Marshall agreements are structured in terms consistent with this nowestablished policy of self-government. A number of critics have expressed concern that the political structure of chief and council, which exist under the Indian Act, are incommensurate with tradition. …