High court upholds native treaty rights: Donald Marshall not guilty of trapping eels without a licence, judges rule

The Ottawa Citizen
Saturday, September 18, 1999

The Supreme Court has bestowed increased importance on historical agreements by upholding a 240-year-old treaty between the King of England and Mi'kmaq Indians.

The high court's 5-2 decision yesterday striking down Donald Marshall Jr.'s 1996 conviction for catching and selling eels without a licence and in the off-season establishes a new, deeper approach to interpreting native treaty rights.

''It's been hard work, but hard work pays off in the end,'' Mr. Marshall said yesterday in Halifax.

Mr. Marshall, the man who spent 11 years imprisoned for a murder he didn't commit, said he had dealt with bigger problems and was determined not to quit his treaty case.

In 1993, he sold 200 kilograms of eels caught off Nova Scotia for $787. 10. He was convicted and appealed his conviction to the Supreme Court.

Mr. Marshall maintained that under the treaty signed between the Mi'kmaq and King George II in 1760, he had the right to catch and sell fish without government intervention.

The Supreme Court agreed yesterday, but stressed that the treaty limits the Mi'kmaq's fishing rights to daily needs, or what it called a ''moderate livelihood'' including ''food, clothing and housing, supplemented by a few amenities,'' Justice Ian Binnie wrote for the majority.

The treaty does not allow those governed by it to establish factory-scale commercial ventures, the court said.

In reaching its decision, the Supreme Court's analysis of the treaty went beyond what the document stated but what it meant to the parties involved.

The high court examined historical records, other documents and looked at expert testimony in the case, establishing a degree of measurement that may set a new approach to treaty disputes.

In the wake of favourable rulings for natives in the areas of taxation and land rights, Supreme Court justices have identified native rights as being among the chief issues facing the judiciary heading into the next century.

Although yesterday's decision specifically concerns natives represented by the 1760 treaty with the Mi'kmaq, the Maliseet First Nation and the Passamaquody First Nation living in New Brunswick, its impact could reach into all outstanding legal treaty disputes.

The federal government immediately began assessing the depth of the ruling.

The Department of Indian Affairs is currently litigating 334 outstanding treaty cases. They encompass hundreds of billions of dollars of resources in such areas as oil and gas, fishing, logging and land, as well as taxation cases.

Native groups also began weighing the virtues of yesterday's ruling, said Chief Ron Derrickson of the Westbank Tribal Nation, which is embroiled in a dispute with the B.C. government over ownership of logging and land rights near Kelowna.

''I am delighted with the decision. The Supreme Court recognizes that aboriginal people do have significant rights.''

Yesterday's ruling seems to be at odds with earlier Supreme Court rulings on inherent aboriginal rights (as opposed to written treaty rights) and could potentially create other conflicts, said Reform aboriginal affairs critic Mike Scott.

''There has to be consideration for the greater community good and the provincial government's right to regulate resources. There could be problems here,'' Mr. Scott said from Toronto.

Some observers speculate that the Supreme Court's decision will lead to refined fishing legislation for Atlantic Canada.

Beyond the treaty restriction for Mi'kmaq to earn a ''moderate livelihood, '' the high court theorized about the issuance of ''communal licenses,'' or new limits on the number of fish treaty fishermen could catch to maintain conservation.

Phil Fontaine, national chief of the Assembly of First Nations, applauded the ruling but urged governments not to use the restriction to impose quotas.

Atlantic fishermen who run small operations were disappointed with the ruling, said William Moreira, a Halifax lawyer.

''We think it's going to create more problems than it solves. I'm not sure anyone knows yet exactly what the court has done here,'' said Mr. Moreira, who represented the West Nova Fishermen's Coalition in the case, a group of small fishing vessel operators.