In solidarity with Mi’kmaw: the Marshall Decision, explained

What is the Marshall Decision?

Do Treaties guarantee commercial fishing rights for the Mi’kmaq and other  Indigenous Peoples of the Atlantic Coast? That question is at the heart of the Supreme Court of Canada decision in the Marshall case.

In Marshall the Supreme Court was grappling with the interpretation of historic Peace and Friendship Treaties between the British Crown and the Mi’kmaq and Wolastoqiyik Nations in New Brunswick, PEI, Nova Scotia and the Gaspé region of Québec. Signed between 1725 and 1779, these treaties established peace and commercial relations, and guaranteed hunting, fishing and land use rights.

The original case involved Donald Marshall Jr., a Mi’kmaw man from Nova Scotia who was charged and convicted with fishing eels out of season and selling them. The case went all the way to the Supreme Court of Canada.

On September 17, 1999 the Supreme Court acquitted Marshall and affirmed the Mi’kmaq treaty right to hunt, fish and gather in pursuit of a “moderate livelihood.” This goes beyond the Aboriginal right to fish for “food, social or ceremonial” purposes, and includes the right to sell the catch. However, the exact meaning of “moderate livelihood” was not defined. 

When Mi’kmaq fishers began exercising these rights, some non-Indigenous fishers in New Brunswick and Quebec responded with violence. The West Nova Scotia Fishermen’s Coalition applied for a rehearing. 

In November 1999 the Supreme Court issued a clarification, known as Marshall 2, confirming that Mi’kmaq fisheries would still be regulated by the federal government for conservation purposes. However, the decision did not clarify the meaning of “moderate livelihood”.

Since then successive federal governments have failed to fully implement Marshall.

“Canada tells us repeatedly that they acknowledge our treaty right to sell fish in pursuit of a moderate livelihood. But as an institution, the DFO won’t change how it operates to allow us to sell the lobster we catch every fall. Instead, they criminalize us for exercising our rights. That is systemic racism.” – Chief Darcy Gray, Listuguy Mig’maq First Nation

In September 2020, Mi’kmaq fishers in Nova Scotia experienced harassment, including damage to fishing gear, by non-Indigenous fishers, prompting the Assembly of Nova Scotia Mi’kmaw Chiefs to declare a state of emergency.

“Canada must fully embrace the spirit and intent of the ruling of the highest court in the lands in respect of Moderate Livelihood. Unless and until this occurs any sense of meaningful reconciliation cannot be realized” – Canada’s Mi’kmaw Senators Brian Francis and Dan Christmas


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