The Marshall Decision and Native Rights

Abstract

This book begins in its opening chapter with the individual at the centre of this controversy--Donald Marshall, Jr. He is a figure already well known to Canadians as a result of his wrongful conviction and the subsequent judicial inquiry of the 1980's. Here, Marshall is before the Court system again B this time for fishing without a licence, selling eels without a licence and fishing during a closed season. He admits to having caught and sold 463 pounds of eels without a licence and with a prohibited net within closed times. The only issue at trial, then, is whether he possesses a treaty right to catch and sell fish under the treaties of 1760-61 which exempted him from compliance with the regulations.Joined by Mi'kmaq chiefs, the Union of Nova Scotia Indians and the Confederacy of Mainland Mi'kmaq, a legal battle ensues which works its way through the court system ending up finally before the Supreme Court of Canada. In its ruling of September, 1999, the Supreme Court not only finds for Marshall but holds that he has established the existence and infringement of a local Mi'kmaq treaty right to carry on a small scale commercial eel fishery. Amidst the controversy which follows, the Court takes the rather unprecedented step of issuing a statement of clarification [November, 1999]. The statement addresses certain misconceptions about the judgement, principal among these being, that the Marshall decision is specifically about eels and not about other natural resources. Further the treaty right referred to in Marshall is a regulated right. This recognizes the stewardship of the Federal government, the continuing pre-eminence of conservation, and the need to consider the of other users. Finally, the right to a moderate livelihood is interpreted as being limited to securing necessaries--meaning food, clothing and housing, supplemented by a few amenities and not to the open-ended accumulation of wealth.For Coates, making sense of the Marshall decision requires a very broad and comprehensive perspective which must take account of the historical as well as contemporary circumstances of First Nations within the Maritime provinces. Accordingly, there are the historical relations which developed between First Nations and newcomers culminating in the treaties of 1760-61 B the agreements immediately relevant to the case at hand (chapter 2). As well, there are the contemporary social, economic and cultural conditions among these First Nations which finds them largely marginalized from the opportunities enjoyed by most non-Aboriginal Maritimers. Indeed, hardest hit appear to be Aboriginal youth who, even in the face of more vibrant First Nation communities and the reinforcement of language and culture, continue to experience a lack of belonging in a world markedly different from that of their ancestors (chapter 3).The Marshall decision is a legal case in a long line of other such cases, from St. Catherine's Milling and Lumber Company (1888) through Syliboy (1928), White and Bob (1965), Calder (1973), Guerin (1985), Simon (1985), and Sparrow (1990) to Van der Peet, N.T.C. Smokehouse, Gladstone (1996) and Delgamuukw (1997). Together these cases form not only a body of law on issues of resource, treaty and Aboriginal rights but have come to symbolize a hope for greater opportunity (chapter 4). …