Supreme Court of Canada –  3 S.C.R. 533 – “Marshall II”
This case was a response to growing discontent following Marshall I, that recognized that the Mi’kmaq had a treaty right to fish.
The Court refused that a new trial be held, but reiterated many key principles in terms of interpretation and application of treaty rights. These rights are limited, the minister has the responsibility to apply regulation ensuring the conservation of the resource, the minister can also limit aboriginal rights in the public interest (including the “pursuit of economic and regional fairness”), and Aboriginals must be consulted about restrictions to the exercise of their rights.
Should a new trial be held to restrict the issues covered in Marshall I, and to determine whether the application of fishing regulation that has the effect of restricting the exercise of the Mi’kmaq treaty rights can be justified for conservation or other motives?
No, there is no need to hold a new trial. The Court nonetheless takes the occasion to explain its decision in Marshall I.
Between: the West Nova Fishermen’s Coalition (intervener in Marshall I – filed the motion for Marshall II)
And: Donald John Marshall, Jr.
And: the Crown of Canada
Interveners: New Brunswick, the West Nova Fishermen’s Coalition, the Native Council of Nova Scotia and the Union of New Brunswick Indians
The West Nova Fishermen’s Coalition, an intervener in the Marshall I case, applied to the Supreme Court for a rehearing of the appeal. The Coalition was seeking to obtain another trial to establish whether the Crown could adopt fisheries regulations for conservation or other purposes.
This request was filed in part as a reaction to discontent from non aboriginal fishers. They were mad that Aboriginal fishers had been installing lobster traps outside the season.
The Crown, Marshall and other interveners were opposed to a new trial.
West Nova Fishermen’s Coalition: Their claim mainly pertained to the alleged impact of the first Marshall decision on the lobster fishery. During the first trial, the Crown had not tried to justify the licencing limitation or the closed season to restrict the exercise of the Natives’ treaty right, meaning that there was an unreasonable burden placed on the intervener’s shoulders to address the multitude of issues covered in the first trial. A new trial was said to be necessary in order to clarify the government’s legislative power in fisheries.
For further arguments, see Marshall I.
See Marshall I.
The Court. Lamer, L’Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Binnie
The Coalition’s motion is dismissed, and Marshall I is affirmed.
The first decision clearly defined the regulatory powers of both federal and provincial governments in connection with the treaty right invoked by the appellant. Furthermore, the issue of justification for conservation or other purposes was of a distinct nature.
In the end, the Crown is at leisure to choose whether it wants to address the applicability of government regulations when taking action against an accused who claims to be exercising an Aboriginal or treaty right.
Discontent towards Marshall I
After the release of Marshall I, reactions in the Maritimes were mixed. Aboriginal people were thrilled with the recognition of their rights, and non-Aboriginal people were puzzled with regard to the concrete application of the principles laid down by the decision. The confusion persisted because of the federal government’s failure to take immediate action.
Violent acts (protest and sabotage) were committed against Aboriginal fishermen by non-Aboriginal ones, primarily in Burnt Church, New Brunswick, and Indian Brook, Nova Scotia, which led to an escalation of violence in these regions. Non-Aboriginal fishermen were not happy with the Court’s decision to give Aboriginal people in Nova Scotia, New Brunswick, Prince Edward Island and Québec (Gaspésie region) priority of access to natural resources and the right to fish without a licence.
Some groups, such as the Maritime Fishermen’s Union and the West Nova Fishermen’s Coalition, were afraid that an increase in out-of-season fishing would lead to a significant decline in the fish population in the Atlantic Ocean. This decision and others affecting non-Aboriginal rights resulted in a decrease in popular support for Aboriginal issues (Frank, 2000).
In response, most First Nations in the Maritimes (with the notable exception of those in Burnt Church and Indian Brook) decided to stop their lobster fishing activities in order to give the government enough time to regulate the matter. The Indian Brook Band applied for an interlocutory injunction to prevent the application of new lobster fishery regulations, which was rejected by the New Brunswick Court of the Queen’s Bench (Isaac, 2001: 150).
Two months after Marshall was rendered, a motion for a rehearing of the case was brought to the Supreme Court by the West Nova Fishermen’s Coalition, the first time in the Court’s history that a non-Aboriginal party had asked for a rehearing in a case concerning Aboriginal rights (Palmater, 2000). The Court used the ruling on the motion as a way to clarify Marshall I and to guide authorities in its implementation (Des Rosiers, 2000: 150).
The “gathering” of resources as laid out by Marshall could not be extended beyond the scope of what was allowed by the first Marshall decision. Hence, the Court decided that First Nations could not read into the rights acknowledged in Marshall the inclusion of forestry, mineral rights and natural gas deposits (Isaac, 2001: 123).
The Court also upheld licencing schemes (fishery and wildlife) as representing the government’s valid exercise of authority to regulate and determine how the rights of First Nations and those of other Canadians should interact. These schemes were deemed reasonable and seemed to point towards their amendment in order “to accommodate a limited commercial fishery” (Isaac, 2001: 124).
This action did not appease the irritation of other fishermen, nor did it meet Native peoples’ hopes. The Maritime Fishermen’s Union appeared before the Parliamentary Standing Committee on Fisheries and Oceans to express their concerns. The government agreed to set up a Community and Fisheries Relation Office in New Brunswick (Isaac, 2001: 150). Negotiations of interim agreements with Maritime First Nations began in October 1999.
In 2000, the Department of Fisheries and Oceans (DFO) confiscated crab fishing boats and charged several individuals with illegal fishing in Indian Brook. An interim agreement was also rejected in Burnt Church, which gave way to a new wave of violence (Isaac, 2001: 151).
In 2001, the government of Nova Scotia, the federal government and the First Nation Chiefs of Nova Scotia endorsed a joint statement of intent and reaffirmation, under which a framework was to be elaborated to guide all negotiations. Under this framework, five new agreements were reached. To prevent other violent altercations, the DFO issued short-term fishing licences for purposes other than commercial in Burnt Church (Isaac, 2001: 152-155).
In order to prevent legal actions by West Coast Aboriginal people, the DFO allocated fishing licences to them, as well as gear and capacity building tools. But the federal government has failed to develop a comprehensive and thoughtful strategy for dealing with the impacts of Marshall (Isaac, 2001: 156).
R. v. Morris,  2 S.C.R. 915
R. c. Marshall,  3 S.C.R. 456 (Marshall I)
Department of Fisheries and Oceans Canada. 2000. The Management of Fisheries on Canada’s Atlantic Coast: A Discussion Document on Policy Direction and Principles. Ottawa: Atlantic Fisheries Policy Review.
Des Rosiers Nathalie. 2000. “Du dialogue au monologue : un commentaire sur l’arrêt R. c. Marshall,” Dalhousie Law Journal 23 (1): 149-167.
Frank Steven. 2000. “Getting angry over native rights,” Time (Canadian edition) 155 (20): 16-25.
Isaac Thomas. 2001. Aboriginal and treaty rights in the Maritimes: the Marshall decision and beyond. Saskatoon: Purich Pub.
The Marshall Decision and the Maritime Canadian Fisheries. 2001. Mi’kmaq / Maliseet / Passamaquoddy Integrated Natural Resource Management Policy. On-line. http://www.rism.org/isg/dlp/bc/perspectives/mmp2.htm. Consulted October 25, 2009.
Palmater Pamela D. 2000. “An Empty Shell of a Treaty Promise: R. v. Marshall and the Rights of Non-Status Indians,” Dalhousie Law Journal 23 (1): 102-147.
Rotman Leonard. 2000. “Marshalling Principles From the Marshall Morass,” Dalhousie Law Journal 23 (1): 5-47.