Marshall Case

The Marshall case is a landmark ruling in Indigenous treaty rights in Canada. The case centres on Donald Marshall Jr., a Mi’kmaq man from Membertou, Nova Scotia. In August 1993, Marshall caught and sold 210 kg of eel with an illegal net and without a licence during closed-season times. He was arrested after being charged under the federal Fisheries Act and the Maritime Provinces Fishery Regulations. In Marshall’s court case, R. v. Marshall, he was found guilty on all three charges in provincial court (1996) and appeals court (1997). The Supreme Court of Canada reversed Marshall’s convictions in September 1999. The Supreme Court recognized the hunting and fishing rights promised in the Peace and Friendship Treaties. These treaties were signed between the British and the Mi’kmaq, Wolastoqiyik and Peskotomuhkati in 1760–61.



Donald Marshall
Donald Marshall Jr., pictured here with Governor-General Adrienne Clarkson. (Courtesy the Marshall family)

Trial Case and Appeal

In R. v. Marshall, Donald Marshall Jr. argued that he was fishing lawfully, based on the Peace and Friendship Treaties. Judge John Embree of Nova Scotia’s Provincial Court agreed that the 1760–61 treaties once gave the Mi’kmaq the right to “bring the products of their hunting, fishing and gathering to a truckhouse to trade.” However, since a system of truckhouses (licensed Indigenous traders) did not exist in August 1993, Judge Embree ruled that there was no right to trade. Embree convicted Marshall on all three offences on 27 June 1996. ( See also Rights of Indigenous Peoples in Canada.)

Marshall then pleaded his case in the Nova Scotia Court of Appeal in February 1997. On 26 March 1997, the appeals court maintained his conviction. The court rejected Marshall’s argument that he was exempted from obeying the province’s fishing regulations.

Supreme Court Case

The Supreme Court of Canada heard the Marshall case on 5 November 1998 and a decision was reached on 17 September 1999. The judges ruled that the scope of Donald Marshall Jr.’s fishing activities fell within treaty rights. This is because Marshall was selling eel only in limited quantities to “obtain necessaries” as a “moderate livelihood.” Marshall was supporting himself and his family, not operating a large-scale commercial fishery.

The Supreme Court ruled that the Peace and Friendship Treaties of 1760–61 created an ongoing treaty right “to obtain necessaries through hunting and fishing by trading the products of…traditional activities.” It also stated that courts must “choose from among the various possible interpretations…the one which best reconciles” Indigenous interests and those of the Crown.

These treaty rights are protected under section 35 of the Constitution of Canada. According to Marshall’s lawyer, Bruce Wildsmith, the rights apply to the Mi’kmaq in Nova Scotia, New Brunswick and Prince Edward Island. They also apply to Quebec’s Gaspé area and the south coast of Newfoundland. The Supreme Court noted that these rights are held by the community as a whole because Indigenous groups, rather than individuals, negotiated the treaties.

DID YOU KNOW?
Donald Marshall Jr.’s eeling nets, taken by fisheries officials in 1993, are now displayed at a heritage park in Membertou First Nation on Cape Breton Island. ( See also Reserves in Nova Scotia.) After storing the weathered nets in an Antigonish locker for about 26 years, Fisheries and Oceans Canada returned them to the Marshall family. The nets were on display at a 20th-anniversary event commemorating the Supreme Court of Canada’s Marshall decision on Indigenous fishing rights

Marshall II

The Supreme Court of Canada’s initial ruling drew criticism and protest from non-Indigenous fishermen. They were upset because some Indigenous people immediately started fishing out of season. In addition, the court never defined what it meant to fish for “a moderate livelihood.”

On 17 November 1999, the Supreme Court clarified its ruling in what became known as Marshall II. The court stated that Indigenous treaty rights were not unlimited. Indigenous fishing activities can be regulated based on conservation concerns or other important public objectives. This ruling angered some Indigenous groups, who viewed it as backpedalling on the original decision.

In Marshall II, the Supreme Court defined the term “gathering” as relating to resources historically gathered in an Indigenous economy, aside from fishing and hunting. However, the term “moderate livelihood” remains undefined. Federal fisheries minister Dominic LeBlanc appointed a federal consultant in November 2017 to negotiate with the Mi’kmaq, Wolastoqiyik and Peskotomuhkati towards the “reconciliation of fisheries rights.” Together, they plan to come up with a workable definition of a “moderate livelihood.”

Impact

The Marshall case is a ground-breaking decision in Indigenous treaty rights. It affirms the rights of the Mi’kmaq, Wolastoqiyik and Peskotomuhkati as set out in the Peace and Friendship Treaties.

Indigenous communities covered by the decision gained access to commercial fisheries, including the lucrative lobster industry, with the help of federal funding from Fisheries and Oceans Canada. In exchange for training, licences and vessels, Indigenous communities agreed to operate by the federal government’s commercial fishery regulations. (See also Fisheries Policy.) The number of Indigenous workers in fisheries has increased. The Marshall decision has helped Indigenous communities develop. Processing plants and related businesses have expanded, bringing substantial economic benefit. R. v. Marshall has helped to revive sustainable and responsible harvesting, known as netukulimk in Mi’kmaq.


Indigenous Perspectives Education Guide

Indigenous Peoples Collection

First Nations Collection

Further Reading

  • Ken Coates, The Marshall Decision and Native Rights (2000).

  • Jean-Pierre Morin, Solemn Words and Foundational Documents: An Annotated Discussion of Indigenous-Crown Treaties in Canada, 1752–1923 (2018).

  • L. Jane McMillan, Truth and Conviction: Donald Marshall Jr. and the Mi’kmaw Quest for Justice (2018).

  • Alex M. Cameron, Power Without Law: The Supreme Court of Canada, the Marshall Decisions, and the Failure of Judicial Activism (2009).

  • John Borrows and Michael Coyle, eds., The Right Relationship: Reimagining the Implementation of Historical Treaties (2017).

  • William C. Wicken, Mi’kmaq Treaties on Trial: History, Land, and Donald Marshall Junior (2002).

  • Michael Asch, On Being Here to Stay: Treaties and Aboriginal Rights in Canada (2014).

External Links