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Native Rights: The Aftermath of the Marshall Decision

What are Treaty Rights?

Long before Europeans arrived in “Turtle Island” (North America) the Aboriginal peoples had been living in their own distinct societies with their own laws, customs and economies for thousands of years.  When the British government felt the need to legitimize their settlement claims in the Americas they began to negotiate with the various indigenous nations.  The results of these negotiations were treaties, contracts signed by two parties to legalize agreements between nations.  When these treaties were made the indigenous peoples owned and occupied these American territories and when they entered into the agreements with the British Crown, they signed as independent nations and not as subjects of the British Crown.  Had the British perceived them as subjects, the making of the treaty between the two nations would not have been necessary. 

In 1760 the Peace and Friendship Treaty was signed between the Mi’kmaq, Maliseet and Passamaquoddy and the British Crown.  It was recognized as an international treaty between two sovereign nations and is upheld by the Supreme Court of Canada as being legitimate. The SCC has ruled that the provision within section 35(1) “did not create aboriginal rights; rather, it accorded constitutional status to those rights that were already existing.”  This means that Aboriginal rights and treaty rights are not something that can be granted to Aboriginals from Canadians but are already present and are based on historical fact.

What is the Marshall Decision?

On September 17, 1999 the Supreme Court of Canada acquitted Mi’kmaq Donald Marshall Jr. of three charges relating to federal fishing regulations: selling eels without a license, fishing out of season, and using illegal nets.  The SCC accepted his argument that the treaties gave him the right to fish for a living.                                                     

The key question arising from this decision is what the 1760 treaty means today.  The treaty gave the Mi’kmaqs the right to trade the products of their hunting, fishing and gathering for “necessaries”.  The SCC interpreted this to mean the right to earn a “moderate livelihood” through trading fish and game.

The Canadian government later opposed the SCC’s decision and asked them to review the case after problems between the Department of Fisheries and Oceans (DFO) and Native fishermen arose.  The SCC then claimed that they never intended the decision to mean that Native’s could regulate their own industry and fish whenever and wherever they wanted.  At issue is the question of resource regulation.  Did the SCC mean Natives have the right to fish with no regulations, under DFO regulations, or under their own regulations?  Because of the confusion involved in interpreting the treaty, many issues have begun to surface.  The government and the courts need to clarify what these treaties really mean for today’s First Nations peoples. 

Consequences of the Marshall Decision

On-going disputes between the Department of Fisheries and Oceans and Maritime Native fishermen have been developing since the Supreme Court of Canada released the Marshall Decision in September of 1999.  A number of native reserves in Nova Scotia and New Brunswick have been the site of controversies between Native and non-Native fishermen over the last year.  A policy drawn up on September 29, 1999 by the Mi’kmaq, Maliseet and Passaquoddy describes “a commitment to conservation” as the first priority for the Aboriginal fishery.  The policy also specifies a commitment to education and peaceful co-existence with Canadians.  It is as follows:

  • Mi’kmaq/Maliseet people will exercise control of all fisheries resources within traditional tribal territories.
  • Any fisheries policy must protect and promote fishing rights recognized within relevant treaties and laws
  • Mi’kmaq and Maliseet leaders will not enter into fishing agreements that appear to abrogate or derogate from Treaty or Aboriginal rights recognized in applicable treaties or are protected by law.  Such treaties and laws express Mi’kmaq and Maliseet responsibilities and intentions to assert full control over all fisheries resources within traditional tribal territories.

Twenty-seven of the 34 First Nations affected by the Marshall decision have come to agreements with the government concerning their fishing practices. To accommodate these natives affected by the decision, the government implemented a $160 million plan to help them establish a commercial fishing industry. The money being distributed to the reserves is in the form of boats, equipment, licenses, training and fishing facilities.  Many natives believe that the program is not necessarily about native access to the commercial industry but is a way to reduce the economic hardship on the reserves.  Many of the First Nation reserves have signed the one-year agreement, hoping it will make a difference in the future of their band members.

Burnt Church, a native reserve in northeastern New Brunswick was one of the reserves apposed to the plan and did not sign the deal with the government. They were part of on-going negotiations with the Department of Fisheries and Oceans throughout the year 2000, and had still not reached an agreement as of August 2000.  Burnt Church band members are sticking by their beliefs that they have the right to regulate their own fisheries as indicated to them by the Supreme Court of Canada.  The Department of Fisheries and Oceans has stepped in, seizing lobster traps and making arrests, stating that they must abide by the regulations set up by the DFO.  Confrontations have arisen throughout the summer months and many more are likely to ensue. Both the government and the Native fishermen are refusing to back down, creating tension throughout northeastern New Brunswick. 

To read more on the Marshall Decision and native rights, visit this website:


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