Rights in the Courts, on the Water, and in the Woods: The Aftermath of R. v. Marshall in New Brunswick

Abstract

In September 1999, the Supreme Court of Canada released its decision in R. v. Marshall, allowing Donald Marshall's appeal against his conviction on charges of catching and selling eels in violation of federal fisheries regulations. Marshall, a Mi'kmaq from Nova Scotia, admitted that he and two companions had caught 463 pounds of eels in Pomquet Harbour, Antigonish, Nova Scotia, and sold them for $787, without having a licence to do so as required under federal regulations. In his defence, Marshall asserted that, under treaties signed by British and Mi'kmaw leaders in 1760-61, Mi'kmaw people had the right to fish and to sell fish without having to comply with the federal regulatory scheme. The Supreme Court, in a five-to-two decision, accepted Marshall's basic argument. The majority noted that Marshall did not have an absolute right to harvest eels; the federal Department of Fisheries and Oceans could limit his treaty right, if the limits were necessary for conservation, public safety, or some other compelling public purpose. The Crown, however, had not introduced any evidence on the purpose or the necessity of the regulations, choosing instead to dispute the claim to a treaty right. Without that evidence, once the Supreme Court confirmed the treaty right, Marshall's acquittal followed (R. v. Marshall #1 1999). The facts of the Marshall case required the Supreme Court judges to decide only whether Donald Marshall had a treaty right to catch and sell eels, but in explaining the treaty right, the court spoke in general terms of a right to sell the products of fishing, hunting, and gathering. In consequence, First Nations peoples viewed the decision as a recognition of their existing rights over natural resources. In a world of disappearing fish stocks and degraded forests, those who derive their livelihood from natural resources sometimes react with fear and anger to the prospect of others seeking their livelihood from the same source. Mike Belliveau, executive director of the Maritime Fishermen's Union, responded to the prospect of increased Aboriginal participation in the east-coast fishery by describing the resource as maxed-out ... so if you're bringing in a whole bunch of new entrants... you're going to have to have compensation for those leaving (Daily Gleaner 1999c). Ken Coates, an academic who has written about Aboriginal and treaty rights in the Maritimes, observed that it is sad and unfortunate that the courts only affirmed First Nations rights to harvest natural resources at a time the resource sectors are not booming (qtd. in Davies 2003). This essay explores some of the public reaction to the R. v. Marshall decision in New Brunswick,1 and argues that this reaction shaped a subsequent ruling of the New Brunswick Court of Appeal in R. v. Bernard, affirming First Nations rights to cut wood on Crown land (2003). In the last few years, judges in Nova Scotia, New Brunswick, and Newfoundland have issued many decisions dealing with charges laid against First Nations people who assert an Aboriginal or treaty right to hunt, fish, or cut wood. As in R. v. Marshall, in most of these cases, the accused admit that their actions violate relevant government regulations, but they claim that their Aboriginal or treaty rights override the regulations. Aboriginal and treaty rights are creatures of history, but with different sources: treaty rights are contained in solemn agreements negotiated between the Crown and various First Nations communities, while Aboriginal rights derive from Aboriginal peoples' occupation and use of the land when Europeans arrived, or when a European nation acquired sovereignty over an area in accordance with the principles of international law. A defence based on an assertion of Aboriginal or treaty rights must be supported by evidence of the historical basis of the right, provided by experts such as historians, anthropologists, or other specialists (Mainville 2001, 26-36, 52). Thus, judicial proceedings have become the forum for presentation of some of the best new research into First Nations-European relations in the Atlantic region in the eighteenth and nineteenth centuries (Bell 1998, 23; Wicken 2002, 1-13, 19-21). …