Hostname: page-component-586b7cd67f-g8jcs Total loading time: 0 Render date: 2024-11-22T20:37:51.192Z Has data issue: false hasContentIssue false
  • English
  • Français

Historian and Courts: R. v. Marshall and Mi'kmaq Treaties on Trial1

Published online by Cambridge University Press:  18 July 2014

Douglas C. Harris
Douglas C. Harris
Affiliation:
Faculty of Law, University of British Columbia, Vancouver (B.C.)CanadaV6T [email protected]
Get access Rights & Permissions [Opens in a new window]

Extract

In September, 1999, the Supreme Court of Canada (SCC) released its decision in R v. Marshall. Donald Marshall Jr., no stranger to Canadian law, had been convicted of catching eels out of season, without a licence, and selling them, contrary to the federal Fisheries Act. He admitted the offences, but appealed his conviction to the Nova Scotia Court of Appeal and then to the SCC on the grounds that the 1760–61 treaties between the Mi'kmaq and the British recognized his right, as a Mi'kmaq, to catch and sell fish, and that this right was protected under the guarantee of Aboriginal and treaty rights in the Canadian constitution. Justice Binnie, writing for the majority of the SCC, overturned the convictions. The Mi'kmaq, he held, did have treaty rights based on the 1760–61 treaties to catch and sell fish, including eels.

The Mi'kmaq were delighted. After many years and many appearances before Canadian judges (R. v. Syliboy, R. v. Issac, and R. v. Simon), it appeared that the courts were finally prepared to recognize what the Mi'kmaq had long believed: that the eighteenth century treaties were the foundation of their relationship with Canada, that the treaties were still in force, and that they guaranteed commercial hunting and fishing rights in their traditional territories.

Type
Review Essays/Notes critiques
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 18 , Issue 2 , August 2003 , pp. 123 - 131
Copyright
Copyright © Canadian Law and Society Association 2003

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

2 R. v. Marshall, [1999] 4 C.N.L.R. 161 [Marshall I]

3 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, s. 35.

4 R. v. Syliboy, [1929] 1 D.L.R. 307; R. v. Issac (1975), 13 N.S.R. (2d) 460; R. v. Simon, [1985] 2 S.C.R. 387. See also Wicken, William C., “Heard It From Our Grandfathers”: Mi'kmaq Treaty Tradition and the Syliboy Case of 1928 (1995) 44 UNBLJ 145.Google Scholar

5 See Wildsmith, Bruce H. Q.C., “Vindicating Mi'kmaq Rights: The Struggle Before, During and After Marshall” (2001) 19 Windsor Y.B. Access Just. 203.Google Scholar

6 Marshall I, supra note 2, para 5.

7 See Coates, Ken, The Marshall Decision and Native Rights (Montreal & Kingston: McGill-Queen's University Press, 2000).Google Scholar

8 R. v. Marshall, [1999] 4 C.N.L.R. 301 [Marshall II].

9 Issac, Thomas, “The Courts, Government, and Public Policy: The Significance of R. v. Marshall” (2000) 63 Sask. L. Rev. 701Google Scholar, is almost alone in describing Marshall II as a “useful clarification and reiteration of the laws relating to treaty rights”.

10 See Rotman, Leonard, “Marshalling Principles from the Marshall Morass” (2000) 23 Dal. L.J. 5Google Scholar; Saunders, Phillip M., “Getting Their Feet Wet: The Supreme Court and Practical Implications of Treaty Rights in the Marshall Case” (2000) 23 Dal. L.J. 48.Google Scholar

11 Barsh, Russel Lawrence and (Sa'ke'j), JamesHenderson, Youngblood, “Marshalling the Rule of Law in Canada: Of Eels and Honour” (1999) 11 Const. Forum Const. 1.Google Scholar

12 Wicken, William C., Mi'kmaq Treaties on Trial: History, Land, and Donald Marshall Junior (Toronto: University of Toronto Press, 2002).Google Scholar

13 R. v. Marshall [1997] N.S.J. No. 246, para 19. Embree, Prov. Ct. J., provides a summary of the expert historian witnesses and their testimony at paras. 12–20.

14 Patterson, Stephen E., “Anatomy of a Treaty: Nova Scotia's First Native Treaty in Historical Context” (1999) 48 UNBLJ 41 at 63.Google Scholar See also Patterson, , “Indian-White Relations in Nova Scotia, 1749–61: A Study of Political Interaction” (1993) 13 Acadiensis 23.Google Scholar

15 Wicken, supra note 12, 10.

16 For another example, see Mills, Antonia, Eagle Down is Our Law: Witsuiwit'in Law, Feasts, and Land Claims (Vancouver: University of British Columbia Press, 1994).Google Scholar

17 Wicken, supra note 12, 16.

18 See, for example, Ray, Arthur J., “Native History on Trial: Confessions of an Expert Witness” (2003) 84 Can. Hist. Rev. 253.CrossRefGoogle Scholar

19 Wicken's Ph.D thesis was a study of Mi'kmaq society in the first 260 years of European contact: Encounters with Tall Sails and Tall Tales: Mi'kmaq Society, 1500–1760 (D. Thesis, McGill University, 1994).

20 Wicken, supra note 12, 88.

21 Ibid. 118.

22 Ibid. 128.

23 This would include works such as Axtell, James, The Invasion Within: The Contest of Cultures in Colonial North America (New York: Oxford University Press, 1985)Google Scholar and White, Richard, The Middle Ground: Indians, Empires and Republics in the Great Lakes Region, 1650–1815 (Cambridge: Cambridge University Press, 1991).CrossRefGoogle Scholar

24 Wicken, supra note 12, 12–13.

25 Marshall I, supra note 2, paras. 36 and 37

26 In the context of Marshall, see Walters, Mark D., “Brightening the Covenant Chain: Aboriginal Treaty Meanings in Law and History after Marshall” (2001) 24 Dal. L.J. 75Google Scholar; Ray, Arthur J., “Regina v. Marshall: Native History, the Judiciary and the Public” (2000) 29 Acadiensis 138.Google Scholar Another thoughtful contribution in the context of Aboriginal title litigation is Fortune, Joel R., “Construing Delgamuukw: Legal Arguments, Historical Argumentation, and the Philosophy of History,” (1999) 51 U of T Fac. L.Rev. 80.Google Scholar See also the papers given at the Osgoode Society for Canadian Legal History Symposium, “History Goes to Court” 18 June 1999 [unpublished].Google Scholar Binnie J. was a participant at the symposium and the paragraphs from his judgment reproduced above seem to reflect its influence.

27 Ray, supra note 18, 272

28 Ray, Arthur J., “Aboriginal Title and Treaty Rights Research: A Comparative Look at Australia, Canada, New Zealand and the United States” (2003) 37 New Zealand Journal of History 5.Google Scholar

29 Bell, David, “Was Amerindian Dispossession Lawful? The Response of 19th Century Maritime Intellectuals” (2000) 23 Dal. L.J. 168.Google Scholar

30 Marshall I, supra note 2, paras. 37–39

31 Patterson's comments were widely in the national media, but these comments here are as reported in the National Post, October 28, 1999, under the following front page headline: “High Court Accused of ‘Distorting’ History: Professor says his testimony used out of context: Supreme Court judge ‘simply ignored’ historical evidence in ruling on native fishing.”

32 Sunday Herald, 17 October 1999, C2.

33 These tactical moves are not uncommon. Defence counsel in R. v. Sparrow, [1990] 3 C.N.L.R. 160, made a similar concession, admitting that the Federal government had a role to play in regulating the B.C. salmon fishery for conservation purposes. In Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, the pleadings changed after the trial court decision from a claim to ownership of and jurisdiction over traditional territories to Aboriginal title and self-government.

34 In particular, see the SCC's decision in R. v. Gladstone, [1996] 4 C.N.L.R. 65, and commentary, Harris, Douglas C., “Territoriality, Aboriginal Rights, and the Heiltsuk Spawn-on-Kelp Fishery” (2000) 34 UBCLR 195–238.Google Scholar

35 Bernard, R. v., [2003] 4 C.N.L.R. 48.Google Scholar