The pursuit of peace and friendship in Mi'kma'ki: The legacy of the Marshall decisions

On an August morning in 1993, Donald Marshall Jr. and a companion slipped their small outboard motorboat into the coastal waters of Pomquet Harbour, Nova Scotia to fish for eels. They landed 463 pounds, which they sold for $787.10. Later, Mr. Marshall was arrested and charged with three offences: (i) the selling of eels without a licence; (ii) fishing without a licence; and (iii) fishing during the close season with illegal nets. Over the next six years, Mr. Marshall's case would find its way to the Supreme Court of Canada, which ultimately rendered two landmark decisions known colloquially as Marshall (1)[1] and Marshall (2).[2]

Marshall (1): The Recognition of Mi'kmaq Treaty Rights

At trial, Mr. Marshall admitted to catching and selling eels out of season, arguing that he was entitled to do so by virtue of a treaty right agreed to by the British Crown in a 1760 Treaty of Peace and Friendship.

The Peace and Friendship Treaties of 1760-1761 are a series of treaties that the British entered into with individual Mi'kmaq communities following the military defeat of the French in Nova Scotia. At the time, the Mi'kmaq were allies of the French King and had been involved in intermittent hostilities with the British for more than a decade. The British were eager to quell these hostilities and to secure their position in the region by entering into treaties with the Mi'kmaq. Writing for the majority of the Supreme Court of Canada, Binnie J. noted, "the subtext of the Mi'kmaq treaties was reconciliation and mutual advantage".

The written treaty terms applicable to Mr. Marshall's case were contained in a Treaty of Peace and Friendship entered into by Governor Charles Lawrence on March 10, 1760 (the "Treaty"). The key clause of the Treaty, often referred to as the "trade clause", reads as follows:

And I do further engage that [the Mi'kmaq] will not traffick, barter or Exchange any Commodities in any manner but with such persons or managers of such Truck houses as shall be appointed or Established by His Majesty's Governor at Lunenbourg or Elsewhere in Nova Scotia or Accadia.

The trial judge found that the "trade clause" gave the Mi'kmaq the right to bring products of their hunting, fishing, and gathering to trade at truckhouses (a type of trading post). However, focusing on the written text of the Treaty, the trial judge ultimately ruled that this trading entitlement had been terminated in the 1780's once the truckhouses and other trade regimes had disappeared. Mr. Marshall was convicted on all three charges.

On appeal, the Nova Scotia Court of Appeal upheld Mr. Marshall's convictions. In doing so, the Court of Appeal applied a more narrow interpretation of the written Treaty, ruling that the Mi'kmaq had acquired no right to trade at the truckhouses, but were merely authorized and required to do so.

Before the Supreme Court, Binnie J. held that the lower courts had erred in finding that the only enforceable Treaty obligations were those contained within the four corners of the written document. The Court criticized the lower courts' strict approach to treaty interpretation and re-affirmed the principle that the words in a treaty document must not be interpreted in their strict technical sense nor be subjected to modern rules of construction.

In line with this principle, the Supreme Court considered extrinsic evidence to ascertain the intended meaning of the Treaty's "trade clause". In doing so, the Court determined that the written Treaty was an incomplete memorial of the Treaty terms and that the honour and dignity of the Crown required the written text to be supplemented.

Relying on the minutes from negotiation sessions and other historical records, the Supreme Court held that the surviving substance of the Treaty was a right to continue to obtain a moderate livelihood through hunting and fishing by trading the products of those traditional activities. This Treaty right is subject to any restrictions that can be justified under the Badger test.[3]

Upon articulating the scope of the Treaty, the Supreme Court held that the regulations that Mr. Marshall was charged under did not accommodate his Treaty right and were inoperative against him unless justified under the Badger test. As the Crown had not raised any justification arguments at trial, Mr. Marshall was acquitted on all charges.

Marshall (2) : Clarifying the Narrow Scope of the Treaty Right

Almost immediately following the release of the Marshall (1) decision, Indigenous peoples throughout Mi'kma'ki began to exercise their Treaty rights to fish in the pursuit of a moderate livelihood. Fearing the impact that the Marshall (1) decision would have on the lobster fishery, the West Nova Fishermen's Coalition (an intervener in the Marshall (1) case) brought a motion for a rehearing of the case and for a stay of the Supreme Court's 1999 judgment.

Though the Supreme Court dismissed the motion, it took the opportunity to clarify the narrow scope of its decision in Marshall (1). In doing so, the Court re-affirmed, among other things, that the federal and provincial governments have the authority to regulate the exercise of the Mi'kmaq's Treaty right subject to the constitutional requirement that such regulation be justified on the basis of conservation or some other compelling and substantial public objective.

The Legacy of the Marshall Decisions

To this day, the Marshall decisions remain the centrepiece of any discussion related to Mi'kmaq Treaty rights. Indeed, the impact of these decisions could once again be felt last fall, when Sipekne'katik First Nation implemented its own self-regulated moderate livelihood fishery.

Mi'kmaq communities like Sipekne'katik First Nation have made it clear that they intend to exercise their right to fish and trade while they wait for the Department of Fisheries and Oceans to engage them in meaningful negotiations. Anchored by their historic role in the east-coast fisheries, these communities are carving their own paths forward, relying on the Marshall decisions to do so.