Supreme Court of Canada
Marshall Decisions
“Pillars” of Marshall
On September 17, 1999, the Supreme Court of Canada issued its ruling in R v Marshall. This ruling, which affirmed an aboriginal treaty right to fish, hunt and gather in pursuit of a moderate livelihood, left many questions unanswered respecting the ambit of the decision, and consequent uncertainty. The ruling was followed by unfortunate occasions of public disorder in the Maritimes and Quebec. The commercial fishing industry, federal and provincial governments, and First Nations all struggled to understand the full meaning and implications of the ruling.
In the wake of the Marshall decision (Marshall 1), the Supreme Court issued a clarification of its ruling (Marshall 2), and subsequently clarified the decision further in the later case of R v Marshall; R v Bernard. Listed below are key pillars of those clarifications.
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Federal and provincial governments have authority to regulate treaty rights. “The Mi’kmaq treaty right to participate in the largely unregulated commercial fishery of 1760 has evolved into a treaty right to participate in the largely regulated commercial fishery of the 1990’s
(Marshall 2, para 38, and see para 24) -
The treaty right is a “limited right” (Marshall 2, para 36). It does not extend to the “open ended accumulation of wealth” (Marshall 1, para 7). It does not extend “beyond the quantities required to satisfy the need for necessaries.”
(Marshall 2, para 36). -
“Compelling and substantial public objectives” may justify infringement of the treaty right including, “historical reliance upon, and participation in, the fishery by non-aboriginal groups”, and “economic and regional fairness”
(Marshall 2, para 41) -
The treaty right is not a right to gather “anything and everything physically capable of being gathered” (Marshall 2, para 20). It is, rather, a right “to continue to trade in items traded in 1760-61”, a right to “practice a traditional 1760 trading activity in the modern way and modern context”
(R v Marshall; R v Bernard, para 16,21,26)
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The treaty right is local. “… the exercise of the treaty rights will be limited to the area traditionally used by the local community”
(Marshall 2, para 17, 38)
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The Minister of Fisheries has regulatory responsibility for conservation of fisheries resources. “This responsibility is placed squarely on the Minister and not on the aboriginal or nonaboriginal users of the resource”
(Marshall 2, para 40)
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The Marshall decision dealt with the eel fishery, not the lobster fishery. Marshall 1 and Marshall 2 raised issues that, “…largely relate to the lobster fishery, not the eel fishery, and, if necessary, can be raised and decided in future cases that involve the specifics of the lobster fishery” (Marshall 2, para 15)
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The treaty right is a “limited right” (Marshall 2, para 36). It does not extend to the “open ended accumulation of wealth” (Marshall 1, para 7). It does not extend “beyond the quantities required to satisfy the need for necessaries.”
(Marshall 2, para 36).