Simon v. The Queen

Supreme Court of Canada – [1985] 2 S.C.R. 387

Nova Scotia Application of laws to AboriginalsTreaties

Summary

Simon is one of the first cases about peace and friendship treaties in Canada. The Court recognizes that peace and friendship treaties can be considered as treaties within the meaning of section 88 of the Indian Act and, as such, exempt their beneficiaries from the application of certain provincial laws.

Issue

Is the Treaty of 1752 valid and still in force and, if so, does it guarantee hunting rights for the Micmacs? Is it included within the meaning of treaty in section 88 of the Indian Act and can Simon invoke an exemption from prosecution under the Lands and Forests Act of Nova Scotia as a direct descendent of the Micmacs who signed the Treaty with the British in the first place?


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R. v. Marshall

Supreme Court of Canada – [1999] 3 S.C.R. 456 - “Marshall I”

Nova Scotia Honour of the CrownTreaties

Summary

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.

Issue

Did Marshall have a treaty right to catch and sell fish under the treaties signed by the Mi’kmaq in 1760-61?


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R. v. Marshall; R. v. Bernard

Supreme Court of Canada – [2005] 2 S.C.R. 220

New BrunswickNova Scotia Aboriginal titleTradeTreaties

Summary

After their fishing rights were confirmed in the Marshall decisions, the Mi’kmaq tried to have their right to harvest lumber for commercial purposes recognized as well. The Supreme Court, however opened to the evolution of trading rights, did not accept their argument.

Issue

  1. Was lumber harvesting part of the Mi’kmaq’s traditional activities at the time of the signing of the treaty?
  2. If so, is modern forest harvesting part of the logical evolution of this practice?
  3. Also, can the Mi’kmaq claim an Aboriginal title over the Crown lands on which they harvested timber?


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R. v. Marshall

Supreme Court of Canada – [1999] 3 S.C.R. 533 – “Marshall II”

Nova Scotia Application of laws to AboriginalsTreaties

Summary

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.

Issue

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?


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