Standing or Who May Bring
The concept of "standing" presents a very important first step in determining who has or holds the “right” being advanced in a particular case. In a civil case, as in this action, the Plaintiff (the person or persons advancing the right) must have the right, or "standing", in order to be the one to bring, and proceed with the action. This precludes parties without the relevant rights and position, to bring an action on behalf of another group.
So what has to be determined in the proposed class action is first of all who has the right, and this will be an important step in defining the "class", a pre-requisite to bringing forth a class action.
As you can see from the other sections of the website, in order to advance the Marshall Decision past where it has been for the last 21 years, it is necessary to start a civil suit against the Crown seeking declaratory relief. The first step in initiating this action is to determine who has the rights in order to bring the action – or who has the standing to bring the action. What has to be done in this particular case is to establish who has the right (both the Treaty right and the aboriginal right as both form part of this action) and who can be the named plaintiff(s). It all comes back to the Treaties (in this case the series of Peace and Friendship Treaties) and the role they play in determining who may start the action.
First of all, the Peace and Friendship Treaties are all what are referred to as “non-ceding” Treaties. This makes these Treaties unique compared to most of the treaties in Canada. Although many take the view that all treaties are the same, this distinction is of particular relevance in the present circumstance. What this term means is that those who signed the Peace and Friendship Treaties did not have the authority to give away any rights that belonged to the Mi’kmaw at the time of those Treaties and also the Treaties themselves did not have any language that even suggested that those who were signing were giving up any rights belonging to the Mi’kmaw. Most other treaties in Canada were signed by representative governing bodies on behalf of a group and those treaties granted to the Crown rights (both aboriginal and otherwise) that were owned by the group they were representing. The Courts (both in the Marshall Decision and otherwise) have established that the Peace and Friendship Treaties were non -ceding Treaties so this is not a new concept at all.
So what does this all mean? The Peace and Friendship Treaties did not give away anything that belonged to the Mi’kmaw. In addition to this there was a positive promise from the Crown that any individual Mi’kmaw could fish and sell the products of their fishing in what is now known as a commercial fishery. Also, although this is yet to be established here but has been established in some cases in BC, each Mi’kmaw would have the aboriginal right to fish and sell the products of their fishing as they always had even before the Treaties. All of these rights (aboriginal and Treaty) both before and after the Treaties belonged to each and every Mi’kmaw and none of these rights were ever transferred to Crown or any other body.
The Marshall Decision verifies in a number of places that the Treaty Right belonged to Donald Marshall personally as his right to earn a livelihood.
The regulatory charges for fishing and selling the fish the charges will continue and the
Crown at law can do so and clearly have done this on countless occasions, both before and
after Marshall. Indeed, if Donald Marshall fished and sold his fish the day after the Supreme
Court of Canada issued its Decision he could be charged. There is nothing that has happened
which has changed that. On the other side though with the more recent case law it is possible
and indeed more expedient to start a civil action against the Crown. Donald Marshall could
have, and as shown below, his Band could not. Hubert Francis (see the section of the website
on the Hubert Francis Saga) started a civil suit which failed only because of lack of funding –
the substance of his case remains outstanding.
So who can the Plaintiff(s) be?
The Crown has taken the position for years that the Bands have the authority over the right. This is how they deal with this issue across the country in the “ceding” treaties which they can legally do. The problem here is that because of the nature of the Peace and Friendship Treaties this approach won’t work. The reason why is that the Bands or Band Councils or the Chiefs or any other organizations do not have the authority over the right which belongs to the individual Mi’kmaw as established in Marshall.
The activities related to this fishery do not occur on the Reserve. The Bands here were created some 200 years after the Treaties and were created under the Indian Act with limited powers only to manage the Reserve. Very limited powers. The right granted under the Treaties and indeed the aboriginal rights which were not given away (ceded) under the Treaties here vested in the individual Mi’kmaw, not anyone else. So the Bands could not have had the rights before they were created or even after. These rights existed both before and after Marshall. The Mi’kmaw have never had – according to the caselaw and the expert opinions – any overall body which could represent their individual rights as is the case in most parts of the country. So there is no organization that can speak on their behalf on this issue as that organization does not represent the overall or indeed any of the individual rights held by the Mi’kmaw people.
All of the activities associated with this livelihood fishery occur off Reserve. The Bands or any other organization created by the Bands collectively or otherwise do not have any jurisdiction outside of the Reserves so how can it be argued that they have any authority over this issue?
The other issue associated with this is that membership in a Band is not required. A Mi’kmaw
who is not a member of a Band has the right. Also, membership in a Band does not mean
that the person has the rights. So how can the Bands say that they are representing their
members when all members are not included? Also, any one Band has many members who
can trace their ancestry back to different areas, so which of the Bands hold their right?
Additionally, do the Bands have the authority over any rights of Mi’kmaw people outside of
the Reserves? No. Do the Bands have authority over the Food Social and Ceremonial (“FSC”)
right and who may exercise it? No. Having said that, it is clear that the Bands have played
an active very effective role over the years in assisting and facilitating the rights that belong
to their members both with the FSC and otherwise.
Just recently this concept was affirmed in BC. You may recall that in one area of BC, the Band agreed with the development of a pipeline over the “traditional” lands of that group. There was no Treaty and therefore there was no ceding of rights or lands. The hereditary Chiefs claimed that they were the only group which had jurisdiction over the traditional lands and the Band did not have any say in the matter because the Band was only a creation of the Crown under the Indian Act to deal with Reserve issues. There were national demonstrations on behalf of the hereditary Chiefs’ position on non-development. In the end it was determined that the hereditary Chiefs had the authority to make the decisions and the Band which had such limited authority had no say in the matter. Note that all or most of this proposed development was occurring outside of the Reserve governed by the Band.
What we can conclude from this then is that the right as established in Marshall as well as the aboriginal right to be established is “owned” by the individual Mi’kmaw – not anyone else.
The Marshall decision stated:
61 Catch limits that could reasonably be expected to produce a moderate
livelihood for individual Mikmaq families at present-day standards can be
established by regulation and enforced without violating the treaty right.
66 The appellant caught and sole the eels to support himself and his wife.
Accordingly, the close 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. In the absence of any justification of the regulatory
prohibitions, the appellant is entitled to an acquittal.
Based on those quotes, it is clear that Donald Marshall had the right, not exercised by any
apparent Band authority. Further, how can any one or more Bands represent all Mi’kmaw
families? The Supreme Court of Canada was very clear on this.
As outlined above the “holders” or “owners” of the right must be the Plaintiffs or initiators of the action. Donald Marshall could have done it. Not his Band. Hubert Francis could do it – not his Band. What is happening in the present circumstance is that the rights are being advanced past Marshall in civil suit. This has taken the form of a class action. The members of the class as shown in this website are the individuals who are members of the class. The action by the class is being pursued by the Representative Plaintiffs and these individuals represent the class and each of them are “owners” of the right which is required in a class action suit of this kind.
The Supreme Court of Canada in the Marshall decision also stated:
40 The findings of fact made by the trial judge taken as a whole
demonstrate that the concept of a disappearing treaty right does justice neither
to the honour of the Crown nor to the reasonable expectations of the Mi’kmaq
Clearly the right and expectation belong to all Mi’kmaw people. The Bands either collectively
or individually cannot represent the “expectation” of the Mi’kmaw people associated with
In conclusion - the rights in question here belong to each and every Mik’maw individually who belong or can establish they are members of the class. The Marshall Decision was very clear on this. There is no overall governance of the Mi’kmaw collectively or otherwise. The Bands have been in negotiations with the Crown which has effectively broken the whole issue down in to Bands, other organizations, Provincial boundaries and otherwise causing divisions within and between the Bands and otherwise. These divisions must stop for the benefit of all Mi’kmaw people. A unified civil class action is the first step.