The Pursuit Of Peace And Friendship In Mi'kma'ki: The Legacy Of The Marshall Decisions

• Published date: 23 June 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Indigenous Peoples
• Law Firm: Gowling WLG
• Author: Mr Brent Murphy

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...