Supreme Court of Canada Marshall Decision

On September 17, the Supreme Court of Canada acquitted Donald Marshall Jr. of three charges relating to federal fishing regulations: selling eels without a license, fishing out of season, and using illegal nets. Following are excerpts from the decision:

Donald Marshall Jr. "caught and sold the eels to support himself and his wife. Accordingly, the closed season and the imposition of a discretionary licensing system would, if enforced, interfere with the appellant's treaty right to fish for trading purposes, and the ban on sales would, if enforced, infringe his right to trade for sustenance."

"[The SCC] would allow this appeal [acquittal] because nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi'kmaq people to secure their peace and friendship."

The key question in the Marshall case was what the 1760 treaty means today. According to the SCC, the treaty gave the Mi'kmaqs the right to trade products of their hunting, fishing and gathering for "necessaries." The court interpreted this to mean the right to trade fish and wildlife resources for a "moderate" livelihood. The SCC decision stated that it was recognizing a "treaty" trading right.

"The treaties were entered into in a period where the British were attempting to expand and secure their control over their northern possessions. The subtext of the Mi'kmaq treaties was reconciliation and mutual advantage."

The SCC accepted Mi'kmaq Donald Marshall Jr.'s argument that the treaties gave him the right to fish for a living even if it meant disregarding federal regulations. Justice Ian Binnie said the treaty referred specifically to the Mi'kmaq bringing fish and wildlife to "truckhouses" to exchange for other goods, but that other documents and oral history show much more was at stake.

"Such an overly deferential attitude to the treaty document was inconsistent with a proper recognition of the difficulties of proof confronted by Aboriginal people."

"If the law is prepared to supply the deficiencies of written contracts prepared by sophisticated parties and their legal advisors in order to produce a sensible result that accords with the intent of both parties – though unexpressed – the law cannot ask less of the honour and dignity of the Crown in its dealings with the First Nations."

Ironically, the events in the Maritimes unfolded during the federal government's throne speech where the government committed itself to "focus on improving the living conditions of Aboriginal people and, increasingly, on strengthening their economic opportunities." Clearly, recognizing and acting upon the Mi'kmaqs' rights to fish to earn a livelihood was an opportune moment for the federal government to make good on it's pledge.

Aboriginal and non-Aboriginal peoples in the Maritimes feel that the federal government, the RCMP, and the media have let them down. The peaceful co-existence and reconciliation they seek can be achieved only through constructive dialogue and education and only if the federal government is willing to honour and uphold Aboriginal rights.

The AFN National Chief Phil Fontaine said he was particularly concerned about the role some commentators have played in creating a climate of hostility towards First Nations citizens. "First Nations rights are human rights. No-one would question the right of women or other identifiable segments of society to fight against discriminatory practices, yet some commentators are trying to deny the rule of law as upheld by the Supreme Court in such cases as Delgamuukw or Marshall that uphold the inherent, Aboriginal, and treaty rights of First Nations peoples."

The problem is not that the federal government was unprepared for the Marshall decision, but that the federal government is unprepared to recognize Aboriginal rights. Clearly, the government's strategy of stalling to wear down Aboriginal peoples, as in the case of the Delgamuukw and Marshall decisions, is frustrating for Aboriginal peoples who are harvesting natural resources and for non-Natives who feel threatened by what appears to be a situation of anarchy. This divisive strategy creates a lack of confidence in Canadian institutions and breeds contempt for the law.

The federal government must recognize Aboriginal rights to resources in order to make Aboriginal economic self-sufficiency a realistic option. Aboriginal initiatives, such as the maritime Aboriginal fishery, which are based on rights recognized by the Supreme Court and affirmed in the Canadian Constitution, will not succeed as long as the government adheres to its extinguishment policy and refuses to engage in negotiations with First Nations.