Papers and Articles
R. v. Marshall: Supreme Court of Canada Recognizes Aboriginal Treaty Rights to Trade in Fish.
On September 17, 1999, the Supreme Court of Canada released a landmark decision, recognizing the constitutionally protected treaty rights of the Mi’kmaq Indians in Nova Scotia to catch and sell fish. Since that time, a number of other aboriginal groups on both the East and West coast have claimed similar rights. This article shall: (1) explain the basis of the courts finding of a treaty right to catch and sell fish; (2) describe the limits which the Government can place on this treaty right; and (3) describe some of the implications of the decision for both the East and West coast fisheries.
Existence of a Treaty Right
The treaty upon which Donald Marshall Jr. based his claim was signed in Halifax, Nova Scotia on March 10, 1760. This was a time in history when France and Britain were still at war with each other. It was shortly after the fall of the French fortresses at both Louisbourg, Cape Breton and Quebec City, but before the fall of Montreal. Since the Mi’kmaq had historically allied themselves with the French, this treaty represented a new alliance. It was a treaty of mutual benefit. Since the Mi’kmaq could no longer depend on the availability of the French for trade, it offered them an opportunity to secure a new source of necessities such blankets, gunpowder and shot. For the British, it offered an opportunity to secure peace with a once hostile enemy. This alliance would benefit them in their war against France and in their settlement efforts.
The part of the treaty relied upon by Donald Marshall, was the trade clause. This provided as follows:
And I do further engage that we will not traffick, barter or Exchange any Commodities in any manner but with such persons or the 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.
After reviewing a great deal of historical evidence, the trial judge concluded that the British wished the Mi’kmaq to continue their hunting, fishing and gathering lifestyle so as to avoid them being a long term burden on the public treasury. This was to be facilitated by the creation of a series of “truckhouses” where the Mi’kmaq could bring their goods to trade. Although these truckhouses would operate at a loss, Britain was prepared to “tolerate certain losses in their trade with the Mi’kmaq for the purpose of securing and maintaining their friendship and discouraging their future trade with the French.” Although the trading clause did not specifically grant a right to hunt and fish, the trial judge was prepare to imply into the agreement, a “right to bring the products of their hunting, fishing and gathering to a truckhouse to trade.”
If this system of trade had continued, there would likely have been no dispute. However, soon after the treaty was entered into, the British stopped insisting that the Mi’kmaq trade exclusively with them and replaced the expensive truckhouses with licenced traders in 1762. Furthermore, in the 1780’s, they also discontinued the system of licenced traders.
The legal effect of this turn of events was the subject of considerable judicial debate. Both the trial judge, and Madame Justice McLachlin, speaking for the minority of the Supreme Court of Canada, were of the opinion that once the Mi’kmaq lost the benefit of the trading houses and gained the right to fish and trade freely like any other inhabitants of the colonies, they also lost the benefit of a treaty protected right to fish and trade.
The majority decision of the Supreme of Canada written by Mr. Justice Binnie, reached the opposite conclusion. After emphasizing the need to uphold the honour of the Crown when interpreting treaties, he concluded that the interpretation advocated by the trial Judge and Madame Justice Mclachlin left the Mi’kmaq with an “empty shell of a treaty promise.” He concluded that the Mi’kmaq treaty right to fish and trade survived the discontinuance of the exclusive trading arrangement with the British.
Limited Scope of Treaty Promises
In finding in favour of Donald Marshall, the court was careful to point out that this treaty right was not without its limits. For example, in rejecting an argument that the Crown was in breach of an obligation to continue to supply licenced traders and truckhouses, the courts said “[t]he appellant cannot , with any show of logic, claim to exercise his treaty rights using an outboard motor while at the same time insist on restoration of the peculiar 18th century institution know as truckhouses.”
The court also addressed the concern that its decision “could lever the treaty right into a factory trawler in Pomquet Harbour gathering the available harvest in preference to all non-aboriginal commercial or recreational fishermen.” In doing so, it pointed out that the treaty only gave a right to trade for “necessaries”. In a modern day context, this translates into a right to earn a “moderate livelihood”. It said that a moderate livelihood “includes such basics as ‘food, clothing and housing, supplemented by a few amenities’, but not the accumulation of wealth.” It also added that catch limits that could reasonably be expected to produce a moderate livelihood at present day standards could be established by regulation.
Since the regulations under which Donald Marshall was charged contained no limits on the discretion of the Minister of Fisheries, they were held to be an infringement of section 35 of the Constitution Act. However, the court did say that regulations could be enacted to limit the treaty rights of the Mi’kmaq, so long as they outlined criteria for recognizing aboriginal rights in a manner, which can be justified under the test set out in R. v. Sparrow. In 1996, this test was discussed in the context of an aboriginal commercial fishery in case of R.v. Gladstone. In this decision, the Supreme Court of Canada recognized the prima facie aboriginal right of a member of the Heiltsuk Band to catch and sell herring roe on kelp. In discussing the possible justifications for limiting the aboriginal right to catch and sell the roe on kelp, the court suggested that the Government could consider such factors as the pursuit of regional and economic fairness and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups. The court noted, that under some circumstances, the reconciliation of aboriginal societies with the rest of Canada may well depend on such recognition.
Implications for the East Coast
Although the Marshall decision involved the catching and selling of eels, it is noteworthy that the Mi’kmaq have been using the decision as a justification for participating in the much more lucrative lobster fishery. There are also some concerns that they will also be trying make inroads into the scallop fishery.
It is noteworthy that the response of the Department of Fisheries and Oceans to the Gladstone decision on the West coast was to negotiate the issuance of several communal roe on kelp licences to the Heiltsuk Band. Apparently, a number of commercial herring licences were retired through a buy back to accommodate the issuance of these additional licences. Following this lead, Fisheries Minister Dhaliwal has announced his intention of responding to the Marshall decision by issuing communal licences to the Mi’kmaq. According to Press Releases, the Mi’kmaq bands and aboriginal leaders have indicated an acceptance of such licences, at least for the short term.
The extent to which the fishing rights of other existing fisherman will be diluted is not entirely clear. This will depend upon both the number of persons who qualify as Mi’kmaqs and how generous D.F.O. is in interpreting what amounts to a reasonable standard of living. It is hoped that the pre-existing non-aboriginal fisherman will still able to make a reasonable standard of living. No doubt, there will be some lobbying for a buy-back, to offset the impact of all of the additional fishing effort.
Implications for the West Coast
On the West coast, we do not have as many treaties as does the East coast. However, the Douglas Treaty was signed with about a dozen aboriginal groups on Vancouver Island, including the Nanoose, Beecher Bay, Malaht, Songhees and T’Soouke First Nations. It is reported that these treaties included the right to “hunt and fish as formerly”. Without reviewing the historical context of these treaties, it is unclear whether or not they will be interpreted so as to contain a right to sell fish. On their face, it would appear that these treaties do not give any rights above and beyond what has already been established in the Gladstone decision. That is, in order to establish a current right to commercially catch and sell fish, the aboriginal group must establish that in pre-contact times, trade in fish was an integral part of its distinctive culture and was not merely incidental to social or ceremonial activities.
In the harsh winter of 1759-1760 it was reported that “so many Mi’kmaq turned up at Louisbourg [Nova Scotia] seeking sustenance, that the British Commander expressed concern that unless their demand for necessaries was met, they would become ‘very troublesome’ and ‘entirely put a stop to any settling or fishing all along the Coast’ or indeed ‘the settlement of Nova Scotia’ generally.” It was also noted by a historian who gave evidence a trial, that “[p]eace was bound up with the ability of the Mi’kmaq people to sustain themselves economically. Starvation breeds discontent.”
It would appear, that things have not really changed that much since 1760. Peace with our current aboriginal groups is still bound up with the ability of these groups to sustain themselves economically. Furthermore, the level of poverty amongst aboriginal groups still breeds discontent. While at first blush the implications of the Marshall decision are unsettling, when viewed in the context of the limitations imposed upon these treaty rights by the court, this decision may well have the unexpected result of helping to secure peace with our First Nations.
This article was published in the November 1999 issue of Westcoast Fisherman.
Brad Caldwell is a Vancouver based lawyer and former fisherman whose practice is primarily devoted to fisheries and maritime matters.