Marshall Case Comment
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Churning the Waters: The Supreme Court of Canada and the Marshall Decision Cameron Jose University of Alberta Law School Table of Contents I. Introduction 1 II. The Lower Courts and the Marshall Case 2 II. The Supreme Court of Canada on Marshall 2 A. Extrinsic Evidence 3 B. Implied Rights 3 C. Right to Restrict Access 4 D. The Majority Decision 5 E. The Dissent 6 F. Courts Look to Parliament 7 IV. The Application 8 V. The Memorandum 9 A. Summary of the Marshall Decision Presented in the Memorandum 9 B. Distinguishing the Decision 10 C. Calming the Storm 12 D. No Decision on “Gathering” Rights 13 VI. Role and Requirements of the Federal Governments 14 VII. How Will Marshall Affect Future Decisions? 15 A. Marshall, 2001 16 VIII. The Marshall Decision Affect on Society 17 A. Assumptions by the Aboriginal Peoples 18 B. Reaction from the Non-Native Community 18 C. Reaction from the Hill 19 D. Criticism from the Scholars 20 IX. Conclusion 22 TABLE OF SOURCES Marshall v. The Queen; Attorney General for New Brunswick et al., Interveners (1999), 177 D.L.R. (4th), pages 513 – 568. Marshall v. The Queen; Attorney General for New Brunswick et al., Interveners (1999), 179 D.L.R. (4th), p. 193 – 218. R. v. Marshall, [2001] N.S.J. No.97, QL. ...
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Churning the Waters: The Supreme Court of Canada and the Marshall Decision
Cameron Jose University of Alberta Law School
Table of Contents
I. Introduction II. The Lower Courts and the Marshall Case II. The Supreme Court of Canada on Marshall A. Extrinsic Evidence B. Implied Rights C. Right to Restrict Access D. The Majority Decision E. The Dissent F. Courts Look to Parliament IV. The Application V. The Memorandum A. Summary of the Marshall Decision Presented in the Memorandum B. Distinguishing the Decision C. Calming the Storm D. No Decision on “Gathering Rights VI. Role and Requirements of the Federal Governments VII. How Will Marshall Affect Future Decisions? A. Marshall, 2001 VIII. The Marshall Decision Affect on Society A. Assumptions by the Aboriginal Peoples B. Reaction from the Non-Native Community C. Reaction from the Hill D. Criticism from the Scholars IX. Conclusion
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TABLE OF SOURCES
Marshall v. The Queen; Attorney General for New Brunswick et al., Interveners(1999), 177 D.L.R. (4th), pages 513 568. Marshall v. The Queen; Attorney General for New Brunswick et al., Interveners(1999), 179 D.L.R. (4th), p. 193 218. R.v.harsMall, [2001] N.S.J. No.97, QL. Canadian Charter of Rights and Freedoms,Part I of theConstitution Act, 1982, being Schedule B to theCanada Act1982 (U.K.), 1982, c. 11. T. Isaac,Understanding Treaty Rights in Atlantic Canada: R. v. Marshall, Solicitor’s Journal, The Canadian Bar Association, New Brunswick Branch, Summer 2000, vol. 16, issue 3. E. Walter, R. M. M'Gonigle and C. McKay,Fishing Around the Law: The Pacific Salmon Management System as a "Structural Infringement" of Aboriginal Rights, (2000) 45 McGill L.J., pages 263-314. J. S. Y. Henderson,Constitutional Powers and Treaty Rights, (2000), 63 Sask. L. Rev., pages 719-749. B. Edwards,Toward a Bilateral Fiduciary Relationship: Recognizing Mutual Vulnerability in R. v. Marshall, University of Toronto Faculty of Law Review, (2001) 59(1) U.T. Fac. L. Rev., pages 107 116. L. I. Rotman,My Hovercraft is Full of Eels: Smoking Out the Message in R. v. Marshall, (2000), 63 Sask. L. Rev., pages 617-644. Government Response to the Standing Committee on Fisheries and Oceans,The Marshall Decision and Beyond: Implications for Management of the Atlantic Fisheries, :awattO( Government of Fisheries and Oceans, April, 2000). O. Wood, CBC News Online, <http: www.cbcnews.ca>. R. MacLean, CBC News Online, <bcncwe.s:p//ww.whttca>. CBC news staff, CBC on line, “Ottawa Extends Burnt Church Lobster Licence, http://navigation.helper.realnames.com/framer/1/112/default.asp?realname=CBC+News &url=http%3A%2F%2Fcbc%2Eca%2Fnews%2F&frameid=1&providerid=112&uid=177 00403
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I. Introduction This case comment focuses on the appeal ofMarshall v. The Queen; Attorney General for New Brunswick et al., Intervenersof September 19, 19991afinreHer te[ referred to as Marshall] to the Supreme Court of Canada and the subsequent memorandum to clarify that decision rendered November 17, 1999.2 The clarification was required because the Canadian community as a whole was having difficulties understanding what the Court decided with respect to the rights given to the Mi’kmaq people within the treaties of 1760 61. In examining the responses of the affected people reported by the media, the academic papers discussing the decision and the political communiqués that were released following the decision, we can see the confusion and its result. It is interesting to note that the people who made the application that led to the memorandum had no right to do so, yet the Court used the application as a vehicle to rectify the misconceptions and misinterpretations the decision had created. After examining the areas of confusion, this comment will look at the effects the decision has had on existing law, the effect on later decisions by the lower courts, and its effects on Canada as a whole. The comment will focus mainly on the memorandum, as it is the defining word from the Supreme Court on the matter ofR. v. Marshall.
1 v. The Queen; Attorney General for New Brunswick et al., IntervenersMarshall (1999), 177 D.L.R. (4th), at pages 513 - 568, [Hereinafter referred to as Marshall] 2 Marshall v. The Queen; Attorney General for New Brunswick et al., Interveners(1999), 179 D.L.R. (4th), at p. 193 218, [Hereinafter referred to as memorandum].
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II. The Lower Courts and the Marshall Case The accused was a Mi’kmaq Indian who caught eels and sold them when the season was closed and he did not possess a commercial fishing license. The trial judge determined the peace treaties between the British and the Mi’kmaq of 1760 61 did include a right to bring fish to the truckhouses to trade and to the licensed traders that replaced the truckhouses. The treaties did not, however, include the right to fish or hunt to obtain the means to trade. The trial judge held that the right had expired in 1780 when the licensed traders ceased to exist. The Nova Scotia Court of Appeal upheld this decision. The court stated the treaties are peace treaties and therefore the Mi’kmaq had submitted to British law. The case was appealed to the Supreme Court of Canada. III. The Supreme Court of Canada on Marshall In a five to two split the decision of the court of appeal was overturned and acquittals were entered for the appellant.3 The Court used several avenues to determine exactly what was contained in the treaties. The Court accepted extrinsic evidence, examined the role of the governments, and examined the necessity to give the aboriginal people a right to generate a moderate livelihood. Professor Hogg suggests that the Supreme Court of Canada uses its decisions as a means of dialogue with Parliament.4 This is exactly what the Court has done with this decision. The fishing industry is a long time tradition for both aboriginal and non-aboriginal people, both treaty and non-treaty, in the Maritimes. The Court suggests that the best way to solve these problems is with negotiation and looks to Parliament to lead the way.
3Marshall, at p. 514. 4P. Hogg, Guest lecture, March 22, 2001.
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A. Extrinsic Evidence Previous decisions by the Supreme Court of Canada inR.v.wkuelDmuga5andR. v.Van der Peet6have stated that the courts of Canada must consider the oral documentary evidence and oral traditions handed down in story by the aboriginal peoples when considering the historical context in which treaties were signed. The Supreme Court did not say, however, that the oral evidence should be given greater weight than the written documents.7 Withoral evidence and minutes of the meetings the use of the between the British representatives and the chiefs of the Mi’kmaq, the Court determined the trade clause meant more than what was stated in the treaties. The Court concluded the only way the objectives of the treaties would be met was if the Mi’kmaq were to have continuing access to the wildlife to trade.8 The Statement of Facts from the trial and appeal transcripts did not explicitly state that Mr. Marshall was exercising his right to fish to obtain necessaries or to provide himself and his family with a moderate livelihood. In order to bring these facts into evidence it allowed new testimony to be introduced, which normally is not allowed in the appeal process. The Supreme Court decided it was necessary in this case in order to render a just verdict. B. Implied Rights The Court stated that the honour and dignity of the Crown must be upheld. The way this would be done was to see the discussions as implied rights that were in addition
56 R.v.kwuumagleD, [1997] 3 S.C.R. 1010, [Hereinafter referred to as Delgamuukw]. R.v.Van der Peetreferred to as Van der Peet]., [1996] 2 S.C.R. 507, [Hereinafter 7 R.v.lraMlahs, [2001] N.S.J. No.97, [hereinafter referred to as Marshall 2001], at par. 64. 8M rshall, at p. 514 a
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to the expressed rights within the treaties. The result of this was that the truckhouse rights took on a new meaning. Fishing was not mentioned in the treaties of 1760-61 or in the minutes of the oral discussions leading up to the treaties. The court held, nevertheless, that the right to take and trade fish was part of what was in the minds of the parties to the treaties when they were made. Binnie J. stated in the firstsrahll Ma decision:9 The thread of continuity between these events, it seems is that the Mi’kmaq people have sustained themselves in part by harvesting and trading fish (including eels) since Europeans first visited the coasts of what is now Nova Scotia in the sixteenth century. The Court saw the Mi’kmaq as a people who fished as part of their lives and, in fact, this was and is a very important part. Though their was little evidence before the Court that the Mi’kmaq engaged in trading fish with the Europeans, it felt the Mi'kmaq engaged in trade with Europeans and considered the Mi'kmaq as a fishing people. Therefore, the Mi’kmaq people had the right to obtain necessaries through hunting and fishing. The Mi’kmaq have the right to take their catch or kill and trade it for other items they need. The Mi’kmaq have a right to a moderate livelihood. The extension of a people who fished to a people who had a right to fish is a tenuous one at best. The Court was looking for a way to replace the peltry right the Mi’kmaq did enjoy but was no longer a viable source of income in present day Canada. C. Right to Restrict Access The Supreme Court determined that the federal and provincial governments did have the right to restrict the amount of fishing and hunting the Mi’kmaq engaged in. The 9Marshall, at par. 2.
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Court also stated that a catch limit for each Mi’kmaq family that would allow them a moderate livelihood could be granted and could be regulated by the Minister of Fisheries.10did not properly interpret the statements made by the The media and society Court in the first decision. The aboriginal lawyers did not interpret the decision as giving the governments the right to restrict fishing, and the non-aboriginal society listened to the reports by the media and thought that the decision is was, in fact, a restriction of the fishing rights of aboriginals. The decision laid out several allowances for the government to regulate and close the eel fishery, but no allowances were identified in the public arena. The communities also thought this was a decision which affected all fisheries but that was a misinterpretation of the decision as well. D. The Majority Decision The majority looked to theOakestest used under section one of the Canadian Charter of Rights and Freedoms11 to test the justification of an infringement on the right of the Mi’kmaq to obtain a moderate livelihood from fishing. The Court concluded that the prohibition against the accused to fish for eels out of season and his prohibition to sell without a commercial right was aprima facieinfringement against the accused’s rights under the treaty. The Supreme Court also concluded that without any justification for the infringements, the prohibitions were of no force or affect.12 Since the Crown did not enter any evidence to justify the regulation and closure of the eel fishery, Mr. Marshall
110Marshall, at p. 514 1 Canadian Charter of Rights and Freedoms,Part I of theConstitution Act, 1982, being Schedule B to the Canada Act11 [Hereinafter referred to as the Charter].1982 (U.K.), 1982, c. 12Marshall, at p. 514
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was acquitted.13 The Crown erred in not presenting evidence to justify the infringement. When an argument is before any court that could possibly involve the infringement of a person’s rights, the Crown should be ready to justify that infringement under section one of the Charter. Here the Crown argued there was no right but did not argue in the alternative. E. The Dissent The dissenting opinion in the decision felt that the parol evidence rule should be adhered to strictly. The dissenting Justices felt that the treaties should be interpreted on their face. Once this was done, then the Court should look at the historical context. It is by looking at the historical context in which the document was written that the intentions of the parties are determined.14 tsrocilac noettxaw s ha tethhTt shiide tnes gnitsuJseci showed that both parties had made concessions in order to have peace. The Mi’kmaq allowed their trading rights to be restricted and the British accepted the cost to set up the truckhouses and the licensed traders to give the Mi’kmaq access to European goods they had come to rely on while allied with the French. When peace came to the area and the need to control with whom the Mi’kmaq traded with was no longer necessary, the truckhouses were dissolved and the Mi’kmaq were under the general laws of the province and could trade with whomever they wished, not restricted to only the truckhouses. They
13T. Isaac, “Understanding Treaty Rights in Atlantic Canada: R. v. Marshall, Solicitor’s Journal, The Canadian Bar Association, New Brunswick Branch, Summer 2000, vol. 16, issue 3 [Hereinafter referred to as Treaty Rights], at p. 17. 14Marshall, at p. 515
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could not agree with the majority that the breach of the British to provide truckhouses for trade could be transferred into a right to fish and a right to trade with any individual.15 Binnie J., for the majority, describes an incident that happened 235 years ago to show that there is this thin thread of continuity from the past before the treaties to the present. This scenario he describes shows the possibility of an aboriginal right not a treaty right and as Justice McLauchlin pointed out, the appellant did not rely on an aboriginal historical right defense but only relied on a supposed treaty right.16 This created the requirement of the Court to find the right in the treaty or Mr. Marshall would be guilty. F. Courts Look to Parliament The Court left several issues to be resolved by the negotiation process.17 They believe that it is in the best interests of both the Mi’kmaq peoples and the non-native community to sit at the bargaining table with the federal and provincial governments and resolve these conflicts rather than the Court deciding what the answer should be. There must be a balance struck between the rights of the treaty aboriginal, the non-treaty aboriginal and the non-aboriginal fishing communities. All three of these communities have long standing traditions of fishing for their livelihood. We cannot discriminate against one for the benefit of the other. It will be up to Parliament to find the middle ground and to assist in reaching an agreement with which all people can live with. It
15Marshall, at p. 515 16 17a sakla,tpc.hte waarn Malsh .v sraMllahS ,’rerptita ionR.n 5 91For ing Angly, ‘ R. Norme "Common Intention": Treaty Inte Law Review (2000), 63 Sask. L. Rev. 645-665, at par. 2 4.
