The Marshall Decision and its Limitations
The Marshall decision on September 17, 1999 was a
ground-breaking decision for the Mi’kmaw in advancing the
Treaty Right. Donald Marshall, a Mi’kmaw, and member of
the Membertou Band in Sydney, was charged for selling
eels which he caught in Pomquet (near Antigonish).
There is no suggestion that he did this with any authorization
from his Band and he fished and sold his eels a very long
way from his Band’s Reserve or area claimed by his Band.
The charges were laid under the Regulations pursuant to the Fisheries Act.
The only issue before the courts in that case was whether Donald Marshall was innocent or guilty of the charges. The Courts at all levels could only deal with this issue.
The Court process took six years before Donald Marshall was found not guilty by the Supreme Court of Canada.
This case was well-funded. If it wasn’t, it could not have proceeded through the lengthy and complex legal process. The initial trial itself consisted of 40 days of hearings, stretching over an 18 month period and included 5,800 pages of testimony, expert reports and written submissions. There was then an appeal to the Nova Scotia Court of Appeal – both the Trial and the Appeal Courts found Donald Marshall guilty.
The Marshall Decision
The Supreme Court of Canada found Donald Marshall not guilty as a result of the 1760 Treaty made by the British Crown with the Mi’kmaw.
According to the Supreme Court, the British agreed with the Mi’kmaw people that they would allow and, indeed promised, the Mi’kmaw (and each and every Mi’kmaw) to continue to gather, in this case fish, and trade the fish gathered in order to obtain what was referred to by the Court as a “moderate” living. The British needed peace with the Mi’kmaw, needed the Mi’kmaw to be economically viable and therefore were willing to make this promise to the Mi’kmaw people in exchange for peace. As the Supreme Court said, “a deal is a deal."
Based upon this promise, the Supreme Court found that the regulations under the Fisheries Act which were the basis for the charges, were presumed to be an infringement on Donald Marshall’s Treaty right and further, were of no effect unless justified by the Crown under the test known as the Badger test.
The Badger test outlines the priorities of interests to be considered once an aboriginal or Treaty right has been established. (For more on the Badger test, please refer to The Hubert Francis Saga section of this website.) The Crown offered no justification and were prepared to allow the not guilty finding to proceed. Such justification requires the Crown to show it has appropriately “accommodated” the right. It does not appear that the Crown, either through its actions or legislation changes, has done this.
Consequently, after this long and extremely costly and protracted process, Donald Marshall was found not guilty.
As an aside, the Supreme Court found that the Treaty in question in the Marshall case, was a non-ceding Treaty relatively unique in Canadian law. (All of the Peace and Friendship Treaties from 1725 to 1778 are non-ceding Treaties!)
The signatories to the Treaties on behalf of the Mi’kmaw people did not give up any rights on behalf of the Mi’kmaw and as was found at trial, they could not because they were only consensus gatherers and therefore did not have the authority to grant any rights (aboriginal or otherwise) to the British Crown. This is fundamental to these Peace and Friendship Treaties.
Further, the Supreme Court of Canada expressed the Treaty right throughout the decision as an individual right belonging to all Mi’kmaw. One can therefore conclude, based upon this decision that this Treaty right does not belong to any Band or other organization of the Mi’kmaw, it vests in each Mi’kmaw person who can trace their ancestry back to the Treaties without geographical consideration or membership in a particular Band. The Bands were created more than 200 years after the 1760 Treaty primarily to administer the Reserves created under the Indian Act. The Treaty right was given as a promise to all Mi’kmaw whose territory at the time of the Treaties at least consisted of all the present provinces of Nova Scotia, New Brunswick, and extending into the Gaspe portion of the Province of Quebec. What this means it would seem, is that any Mi’kmaw person can fish in salt water off the coastal waters of Eastern Canada and sell those fish in order to earn a living as long as the income generated does not exceed a moderate living.
Note that the Marshall decision only dealt with the Treaty right and not any aboriginal right. The civil class action will include the aboriginal right for every individual Mi’kmaw to earn a livelihood from fishing. See Question 10 under the Frequently Asked Questions section of this website.
What Has Happened Since Marshall:
This is the crux of the problem. The Crown’s regulations related to
fishing without a license are of no effect against a Mi’kmaw
exercising their Treaty right unless justified by the Crown. Donald
Marshall was found not guilty because of that. The problem is that
there is nothing to stop the Crown from continuing to charge and
harass Mi’kmaw in their attempts to exercise the right. This they have
done both before and after Marshall and have never been required
to justify either their actions or the regulations.
This is because of the limited nature of the decision – it only dealt
with the guilt or innocence of Donald Marshall!
There was not any way that the Courts could consider or order
anything otherwise, particularly where the Crown refused to justify
the regulations under the Badger tests and the Court could not force
them to do so otherwise.
The Marshall decision was a monumental first step in the process, but only a first step.
For the last 21 years, the Crown has acted as if the Marshall decision did not exist by harassing and charging Mi’kmaw in the same manner as Donald Marshall was.
At the same time, the Crown has been “negotiating” with the Bands who have had some licenses “sprinkled” on them dealing with certain species and limited to local access only. The licenses granted fall far short of any accommodation of the Treaty right as required by Marshall.
Also note the Bands do not have the necessary authority to deal with the areas where individual Mi’kmaw can exercise their right to earn a moderate living from fishing let alone to enforce the right for their members. Again, this is an individual right.
The Crown, through the use of the procedures outlined in 2 and 3, above, have been very effective in preventing the exercise of the Treaty right for the last 21 years.
Defending charges by an individual Mi’kmaw can only lead to the best result possible in that process – not guilty. This involves a trial and possible appeals which is time-consuming and can be very costly. All of which will only place one in the same position of Donald Marshall. Consequently, the best result possible allows the Crown to continue doing what they are doing – and the right is not advanced past Marshall. This is a fruitless process.
The only way to advance the right is through a civil class action initiated by and on behalf of every Status Indian who is a Mi’kmaw person who can trace their ancestry back to the time of the Treaties. In other words, the class sues the Federal Crown for a declaration that any member of the class can fish, trade in the fish and earn not more than a “moderate” living. This will force the Crown to justify the regulations and if they fail to do so, then the declaration is granted.
Also, the civil class action will claim that every individual has, in addition to the Treaty right, the aboriginal right to earn a livelihood from fishing. This issue has not been considered by the Courts. See Questions 10 under the Frequently Asked Questions section of this website.
In addition to item 5, the class action would seek an interim declaration whereby the Court would order that the Crown will be prevented from charging or harassing any member of the class attempting to exercise the right until such time as all matters are determined under the main action.
The whole issue here is allocation of the quota per species. Conservation, yes, is the primary concern. Quota is determined based upon such conservation considerations. The next priority is the proven claims of the indigenous peoples as a result of their proven claims. Where the quota has already, to a very large extent, been granted to non-Mi’kmaw fishers, the Crown cannot justify the regulations under the Badger test as they are required to do under a civil suit. It is this point that is most important and which cannot be reached unless a civil suit is initiated.
There are no guarantees in any legal actions. It all rests upon the Courts. On the other hand, if nothing is done or even attempted to advance the rights on behalf of the Mi’kmaw people, then the problems of the last 21 years will continue.
The Marshall case was well-funded. Advancing the right beyond Marshall is a complex process requiring a civil suit. (See The Hubert Francis Saga portion of this website). The class action cannot go forward without substantial funding from all sources including Bands, organizations created by or on behalf of Mi’kmaw persons and otherwise, national and other organizations across the country, individual Mi’kmaw and any others who wish to contribute.