RAVEN - Respecting Aboriginal Values and Environmental Needs

The Marshall Case – the right to livelihood

R v Marshall

Year: 1999

Court: Supreme Court of Canada

Citation: [1999] 3 S.C.R. 456

Location: NS

TAGS: Treaty Rights 

This landmark case summarized the principles of interpretation for historic Indigenous-Crown treaties in Canada.

Summary:

Donald Marshall, a Mi’kmaq person, caught 463 pounds of eels in Pomquet Harbour, Nova Scotia, and sold them for $787.10, for which he was charged. He argued that this charge is in violation of his treaty rights under the Mi’kmaq treaties of 1760-1761. No arguments were made for an Aboriginal right under s.35 of the Constitution Act, 1982. 

The majority of the Supreme Court of Canada found in favour of Marshall.  The Court held that the 1760 Mi’kmaq treaty includes the right to provide for their sustenance by trading the products of their hunting, fishing and other gathering activities for what was termed ‘necessaries’ in 1760. The court interpreted ‘necessaries’ to be a ‘moderate livelihood.’ The court held that this treaty right was subject to regulation. 

Why this Case Matters:

R v Marshall sets out how to interpret historical treaties in Canada. Courts should take into account the negotiating history of the treaty, how the Indigenous nation(s) who were parties to the treaty negotiations would have understood that treaty, and the honour of the Crown. Furthermore, any ambiguity in the treaty provisions should be resolved in favor of the Indigenous nation(s). 

Supreme Court Judgment:

https://www.canlii.org/en/ca/scc/doc/1999/1999canlii665/1999canlii665.html?autocompleteStr=R%20v%20marshall&autocompletePos=1

Go Deeper: 

http://www.admiraltylaw.com/fisheries/Papers/treatyrights.htm

https://www.rcaanc-cirnac.gc.ca/eng/1100100028614/1539611557572

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