Supreme Court of Canada –  3 S.C.R. 456 - “Marshall I”
The Marshall decision is a leading case for treaties, in particular for historical and peace and friendship treaties. The Court summarizes the main principles in interpretation adopted so far (see par. 78) and confirms that the Mi’kmaq have a right to hunt, fish, gather and trade for subsistence.
I do not think an interpretation of events that turns a positive Mi’kmaq trade demand into a negative Mi’kmaq covenant is consistent with the honour and integrity of the Crown. Nor is it consistent to conclude that the Lieutenant Governor, seeking in good faith to address the trade demands of the Mi’kmaq, accepted the Mi’kmaq suggestion of a trading facility while denying any treaty protection to Mi’kmaq access to the things that were to be traded… (par. 52 of the decision).
Did Marshall have a treaty right to catch and sell fish under the treaties signed by the Mi’kmaq in 1760-61?
Yes, Marshall does have a treaty right to sell his fish. Treaties must be interpreted in the light of their historical context and of the verbal exchanges surrounding negotiations (7 judges against 2).
Between: Donald John Marshall, Jr.
And: Her Majesty The Queen
Interveners: New Brunswick, the West Nova Fishermen’s Coalition, the Native Council of Nova Scotia and the Union of New Brunswick Indians
In 1760, the Mi’kmaq living on Nova Scotia’s territory (known as the LaHave tribe) entered into a peace and friendship treaty with the British Crown in which the Mi’kmaq promised to trade only with the Crown’s representatives through trading post or truck house.
In 1993, Marshall, a Mi’kmaq Indian of the Membertou First Nation of Pomquet Harbour (near Sydney, Nova Scotia), caught 463 pounds of eels and sold them for $787.10. He was accused of three offences pursuant to the federal fishery regulations: the selling of eels without a licence, fishing without a licence and fishing during the closed season with illegal nets.
Marshall, who wanted to build a test case to have his treaty rights recognized by the Canadian courts, admitted to the offences (Rotman, 2000: 8).
Marshall: The treaties of 1760-61 grant the Mi’kmaq the right to catch and sell fish.
The Crown: The trading clause should not be interpreted as giving permission to trade fish.
Provincial Court of Nova Scotia (1996): Marshall was convicted on all three counts. The Mi’kmaq had the right to trade within the truck house or trading post system. Since the latter were not in place at the time of the offence, Marshall should be found guilty (Rotman, 2000: 10-11).
The Nova Scotia Court of Appeal (1997): The convictions are maintained. The trade clause is interpreted as not granting the Mi’kmaq any rights. Rather, they stand for a system destined to guarantee a lasting peace between the Mi’kmaq and the British.
Lamer, L’Heureux-Dubé, Cory, Iacobucci, Binnie
The extrinsic evidence related to the historical and cultural context at the time the treaties were signed must be considered even tough there is no ambiguity in their text, even more so since Aboriginal peoples face numerous difficulties when it comes to evidence. This is even more true in the case of a treaty orally concluded, and then written by the British.
The Court of Appeal erred when it rejected evidence pertaining to the historical and cultural context in which the 1760-61 treaty was signed. The negotiation minutes kept by the British needed to be considered since it showed that the treaty did not include all the terms agreed upon by both parties. Consequently, it seemed inconceivable that the Crown could ignore the oral terms of the treaty and rely only on the written ones since there was an oral agreement before there was even a written document.
The parties’ intent
The intent of the parties in 1760 must be considered and interpreted in a way that would uphold the Crown’s honour and integrity. The minutes show that the Mi’kmaq themselves asked for the establishment of a trading post system. In the treaty, the obligation to trade only with the British Crown is written as a restriction of their trading rights, but they could not have asked themselves for a limitation. That was not their intent.
Therefore, the disappearance of the trading post, the mechanism used by the Mi’kmaq to facilitate their commercial activities at the time of the treaty, does not extinguish their right to fish, hunt and trade. We cannot transform a request by the Mi’kmaq to continue to trade as a subsequent engagement not to trade – it would be inconsistent with the meaning and substance of the promises made by the Crown, and would leave the Mi’kmaq with an “empty shell of a treaty promise” (par. 52).
Marshall’s right to fish and trade is a treaty right protected under section 35 of the Constitution Act, 1982 which allows him to fish and trade for his subsistence – not to enrich. It can be limited by the criteria established in Sparrow. A discretionary right must be framed. Since Marshall caught and sold the eels for the subsistence of himself and his wife, the discretionary imposition of a licencing system and a closed period without any justification infringe his treaty right to fish and trade. Marshall must be acquitted of all charges.
The decision was criticized by non-Aboriginal people for “creating law”. This criticism was the basis of the Marshall II decision (see Marshall II for further information).
The decision had the effect of limiting the scope of treaty rights, since they are circumscribed to day-to-day needs of the beneficiaries. Also, it affirmed the local nature of treaty rights. Hence, the advantages granted by treaties are to be applied in the area habitually used by the community (Isaac, 2001: 121). The Court also reaffirmed Badger, where it was recognized that treaty rights can be infringed like aboriginal rights following the Sparrow test.
Agreements on fisheries
Before Marshall was issued, Simon was the only Supreme Court decision relating to treaty rights in the Maritimes. In a sense, Marshall has significantly boosted awareness of Aboriginal and treaty rights in the Maritimes region (Isaac, 2001: 145).
Since the Court’s decision, the Department of Fisheries and Oceans Canada negotiated commercial fisheries agreements with both the Mi’kmaq and Maliseet Nations (32 out of a possible 34) in the Maritimes and Quebec regions.
From 2000 to 2007, the Marshall Response Initiative received more than $600 million in grants from the Department of Fisheries and Oceans. It set out initiatives to increase commercial fishing and economic development in the communities concerned (DFO, 2009a). Some of the most well-known government initiatives included the At-Sea Mentoring Initiative, established in 2004 for a four-year period, which helped First Nations members acquire fishing and marine skills through training with mentors (both Native and non-Native). The Fisheries Operations Management Initiative also helped eleven First Nations to establish community-run fisheries enterprises (DFO, 2009b).
In 2004, the Aboriginal Aquatic Resource and Oceans Management Program was set up in order to help First Nations gain expertise in aquatic resource management in their communities, mostly in the areas of integrated watershed and ecosystem-based planning (DFO, 2009b). For some First Nations, this has meant initiatives such as aquaculture projects; for others, it has meant new equipment or facilities related to the commercial fishery.
In 2007, the communities received assistance ($20 million over two years) from the Atlantic Integrated Commercial Fisheries Initiative for the improvement of their business management skills (DFO, 2009b).
In the long term, the Mi’kmaq and Maliseet First Nations and the Department of Fisheries and Oceans are seeking a permanent fishing agreement that will vary for each Nation (DFO, 2009a).
Actualization of Treaties
The Mi’kmaq launched the Mi’kmaq Rights Initiative in the hope to enforce their historical treaties of peace and friendship. This initiative is part of a negotiation process between the Mi’kmaq of Nova Scotia, the province and Canada. An Agreement in principle was concluded in 2011. It covers issues of territory, governance and economy.
Fisheries and Oceans Canada. 2009a. First Nation Participation in Commercial Fisheries Following the Marshall Decision. On-line. http://www.dfo-mpo.gc.ca/fm-gp/aboriginal-autochtones/marshall/index-eng.htm. Consulted September 29, 2009.
Fisheries and Oceans Canada. 2009b. Aboriginal Fisheries in Atlantic Canada – Two Decades of Progress. On-line. http://www.dfo-mpo.gc.ca/fm-gp/aboriginal-autochtones/marshall/timeline-chonologie-eng.htm. Consulted September 29, 2009.
Fisheries and Oceans Canada. 2009c. Aboriginal Aquatic Resource and Oceans Management Program. On-line. http://www.dfo-mpo.gc.ca/fm-gp/aboriginal-autochtones/marshall/aarom-pagrao-eng.htm. Consulted September 29, 2009.
Isaac Thomas. 2001. Aboriginal and treaty rights in the Maritimes: the Marshall decision and beyond. Saskatoon: Purich Pub.
Rotman Leonard. 2000. “Marshalling Principles From the Marshall Morass,” Dalhousie Law Journal 23: 5-47.