Constitution

The Marshall Case: A Deal is a Deal the Supreme Court held. (But What’s the Deal?)

The Ugly Violence in Nova Scotia

In the last two weeks there has been escalating violence in Nova Scotia, including assaults, a mob of 200 people threatening Mi’kmaq fishers, and burning down a building containing the lobsters they had caught.  This led to Chief Mike Sack’s calls for military support, to prevent non-Indigenous fishers from ‘taking the law into their own hands’.  On Friday, October 16, Prime Minister Trudeau called for federal agencies to ensure that those involved in an Indigenous-led lobster fishery are safe.  Chief Sack criticized Prime Minister Trudeau, saying he had to go beyond sending comforting tweets and begin to send reinforcements for the law enforcement agencies on land and water. 

It was an unresolved the legal issue that led to the violence: do the Mi’kmaq have a treaty right to fish for lobster out of season, and if so, for how large a catch?  Underlying the legal dispute is the economic battle over a limited natural resource.  It is essentially a zero-sum game.  To the extent that one side wins by catching more, the other side loses by catching less.  Even if their loss is modest, it is the principle that infuriates the non-Indigenous side: ‘they can do something to make money from a common resource that we can’t, so they are unfairly stealing our livelihood.’

The Two Supreme Court of Canada Decisions in the Marshall Case

In order to understand the legal issues we have to go back to 1999, when there were two Supreme Court of Canada decisions (discussed below) involving the prosecution of Mi’kmaq Donald Marshall for fishing for eels without a licence. The Court had to consider a 1760 treaty between the Mi’kmaq and the British.  In the first Marshall decision, a 5:2 split decision, the Court acquitted Marshall of the charges.  In interpreting the treaty, the majority of the Court held that “a deal is a deal”, but failed to clarify what the deal was. The second Marshall decision also didn’t clarify it.  So the question remains unresolved: do the Mi’kmaq today have a treaty right to fish for lobster out of season, and if so, for how large a catch? 

The Court held that catch of each aquatic species raises different issues. What applied to Mr. Marshall’s eels in 1999 may not apply to lobsters today. As well, the Mi’kmaq are only entitled to earn an undefined “modest livelihood”.  Modest in whose opinion?  And the Court held that even such a modest livelihood may be reduced or eliminated by federal fisheries regulation, if that is necessary.  Who will decide what’s necessary? Ultimately, the courts.

Today, 21 years after the Marshall decisions, we have no better answer.  That is not the fault of either the Mi’kmaq or the non-Indigenous fishers who oppose them.

In the Marshall decisions the Court tried to give something to each side, to make everyone a winner.  But despite its good intentions, the Court effectively gave each side a sharper legal sword with which to attack the other side.  Sometimes,  when the judicial process is too slow, too costly and the outcome too uncertain, people take the law into their own hands. The Indigenous fishers did that by fishing for lobster out of season; and the non-Indigenous fishers did that by attacking them.

Interpreting a 1760 treaty, written in the language and the historical context of that time, cannot be easy. Still, how could our top court have created such uncertainty?

The Court Giveth and the Court Taketh Away

In the first of the two SCC Marshall decisions (which I will call Marshall I) the court was split 5:2, with a strong dissent by Justice McLachlin. The majority of the Court held that the 1760 treaty granted Mr. Marshall the right to a modest income by fishing for eels.  But that was not an unlimited or unqualified right, and the court described several limitations. 

After that decision was released, the West Nova Fishermen’s Coalition brought a motion for a rehearing, and to stay (i.e., to stop) the decision from coming into force.  This motion led to the second Marshall decision (Marshall II), which was unanimous.  To get the two dissenting justices in Marshall I to come on side with the five judges in the majority, there had to be some sort of compromise.  The majority had to give up something to gain the agreement of the two dissenters.  The compromise gave up some of the clarity in Marshall I, thereby increasing the uncertainty about what the “deal” was.

Here are some quotations from the two decisions to illustrate my point, and my comments on these quotations.

Marshall I

The Majority Reasons

“….. While it is true that there is no applicable land cession treaty in Nova Scotia, it is also true that the Mi’kmaq were largely dispossessed of their lands in any event, and (as elsewhere) assigned to reserves to accommodate the wave of European settlement which the Treaty of 1760 was designed to facilitate.  It seems harsh to put aboriginal people in a worse legal position where land has been taken without their formal cession than where they have agreed to terms of cession.  A deal is a deal.  The same rules of interpretation should apply. ….. [paragraph 21]

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The policy of not being harsh to aboriginal people and enforcing the deal the parties signed in 1760 are worthy policies.  But that would not justify changing today, through judicial interpretation, a treaty written 239 years ago.  The treaty that was written then was the deal then, it is still the deal now. 

The McLachlin Dissent

[From the Editor’s Summary headnote] ….The core of the trade clause is the obligation on the Mi’kmaq to trade only with the British.  Ancillary to this is the implied promise that the British will establish truckhouses where the Mi’kmaq can trade.  These words do not, on their face, confer a general right to trade.   Nor does the historic and cultural context in which the treaties were made establish such a right.  …. To achieve the mutually desired objective of peace, both parties agreed to make certain concessions.  ……  The …. system was a temporary mechanism to achieve peace in a troubled region between parties with a long history of hostilities.  When the restriction on the Mi’kmaq trade fell, the need for compensation for the removal of their trading autonomy fell as well.  At this point, the Mi’kmaq were vested with the general non-treaty right to hunt, to fish and to trade possessed by all other British subjects in the region.  The conditions supporting the right to bring goods to trade at truckhouses, as agreed to by both parties, ceased to exist.

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Justice McLachlin’s interpretation of the treaty was quite different from that of the majority.  She concluded that events that occurred over the years after the treaty was signed showed that the treaty rights had expired.  Once it had expired, the Mi’kmaq were granted no rights greater than those of all other British subjects in the region.  (They are British subjects because Canada did not yet exist at that time.) In Justice McLachlin’s opinion, Marshall should have been convicted as charged.

Marshall II

The Court’s Unanimous Reasons.

“ The fact the Crown elected not to try to justify a closed season on the eel fishery at issue in this case cannot be generalized, as the Coalition’s question implies, to a conclusion that closed seasons can never be imposed as part of the government’s regulation of the Mi’kmaq limited commercial “right to fish”.  A “closed season” is clearly a potentially available management tool, but its application to treaty rights will have to be justified for conservation or other purposes.  In the absence of such justification, an accused who establishes a treaty right is ordinarily allowed to exercise it.  As suggested in the expert evidence filed on this motion by the Union of New Brunswick Indians, the establishment of a closed season may raise very different conservation and other issues in the eel fishery than it does in relation to other species such as salmon, crab, cod or lobster, or for that matter, to moose and other wildlife.  The complexities and techniques of fish and wildlife management vary from species to species and restrictions will likely have to be justified on a species-by-species basis.  Evidence supporting closure of the wild salmon fishery is not necessarily transferable to justify closure of an eel fishery. “ [Paragraph 21]

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Similarly, evidence supporting a right to fish for eel is not necessarily transferable to a right to fish for lobster out of season.

“At para. 64, the majority judgment again referred to regulation permitted by the Badger test.  The Court was thus most explicit in confirming the regulatory authority of the federal and provincial governments within their respective legislative fields to regulate the exercise of the treaty right subject to the constitutional requirement that restraints on the exercise of the treaty right have to be justified on the basis of conservation or other compelling and substantial public objectives, discussed below. “ [Paragraph 24]

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Necessary Next Steps

Suggestions have been made for mediation to resolve the dispute.  Mediation can help, but only if the parties want it to.  Otherwise, someone must make a decision that is binding on both sides of the dispute.  That someone should be the federal Department of Fisheries and Oceans, on the basis of conservation and other resource management issues, as the Court set out in the two Marshall decisions.

Someone must be held responsible for the mob violence of some 200 people against the Mi’kmaq fishers.  The RCMP officers who were present at the scenes of these violent activities, but didn’t stop it, will have a good idea of who did what. They should investigate further.  Anyone who committed a criminal offence, such as assault or arson, should be charged. 

7 replies »

    • I do not have access to enough information to be able to comment on this particular filibuster. For example, I have not seen the redacted documents and therefore cannot judge whether or to what extent information necessary to this parliamentary committee has been withheld. However, my view of filibusters in general is that their only intention is to obstruct opposing political parties through excessive delay. This obstruction typically has two purposes:

      1. To try to prevent a resolution from coming to a vote because the party conducting the filibuster would lose the vote; or
      2. To try to prevent a resolution of an issue, even if the party has enough votes to win, because voting in that manner would be politically unpopular.

      If the Liberals have enough of a majority on the committee to win every vote, then the filibuster would probably be to prevent the vote from happening, because voting to suppress information about alleged wrongdoing would be politically embarrassing.

      If you want an informed answer, however, rather than my speculation, I suggest you ask one of the members of the opposition parties complaining about the filibuster.

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  1. Thank you for providing some background on the unfortunate violence in N.S. and needed clarity on the SCC Marshall decisions that now brought us to this stalemate and some backbone by the DFO and police.

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  2. Thanks from me also, Mr. Roman, for your explanation of the Supreme Court’s rulings in Marshall. Of course the Dept. of Fisheries and Oceans must scientifically regulate the lobster fishery in the interests of sustainable conservation if we are not to have a repeat of the collapse of the cod fishery from over-fishing. Especially vulnerable are egg-laden females, which are particularly delectable in parts of the world eager to buy them, sustainability be damned. And yes, the courts must ultimately decide what constitutes a modest living from species traditionally taken by indigenous fishermen before Contact — lobsters weren’t, because they were not accessible to people using Neolithic watercraft. (Eels are fished with weirs and nets placed in estuaries and don’t require seaworthy boats that can traverse open ocean.)

    But this works only if indigenous fishermen obey DFO regulations and Court decisions. If instead they use their political styling as “sovereign nations” to flout Canadian law, they might continue to fish out of season, as.much as they can take. Because they can. Then to prevent collapse of the fishery DFO will have to further reduce quotas for non-Indigenous fishermen, against whom Canadian law can be enforced…or they will have to arrest and charge all boats fishing illegally, whosever flag they are flying.

    So “ultimately”, it comes down to another test of Canada’s willingness and ability to assert its sovereignty when it is challenged on its lands and territorial waters. Shall we reward those who obey our laws and punish those who don’t? Or will it be the other way round?

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    • Thank you for your thoughtful comment. The Marshall case is but one example of the problem arising from the declining willingness of journalists to read source documents before writing their stories rather than relying on each other’s opinions. I have read literally dozens of stories about the Marshall case that say the same thing and are wrong for the same reason. This carelessness is not limited to Marshall, which is why I have written about misinformation in several of my blog posts such as the ones dealing with UNDRIP, C-69 and the pipeline.

      I do not blame the Mi’Kmaq for asserting more rights than they actually have. Everyone does that in an effort to expand their rights. This push seems to work in most cases unless someone pushes back. In the zero-sum game where one group’s expanding rights contracts the rights of others there will usually be push-back. If this occurs in a regulated area only the regulator – in this case DFO – can resolve the competition over rights.

      On the question of a moderate income, that is a secondary question that only arises after it has been determined that there is actually a treaty right to fish. There has been no treaty right to fish for lobsters upheld by a court, and therefore, the moderate income issue does not even arise. For the conservation issue of fishing for female lobsters with eggs that you mention, there is a strong likelihood that a court would not uphold a treaty right to fish for lobsters out of season. However, the case is not before the court so it is up to DFO to decide whether to enforce the law.

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  3. I feel the crown should have supported the West Nova Coalition argument at the time and called evidence on Lobster conservation and seasons.

    Why would the crown not ask to court for an advisory opinion on lobster seasons now ?. This would help the court process of avoiding lower court ruling winding its way back to the Supreme Court. If not a lot of court time and expense will ensue. In the meantime at the expense of the lobster resource and those dealing with the fallout from both sides of the issue.

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  4. There are two possible reasons that I can see as to why the Federal Crown did not support the prosecution of Marshall by the Provincial Crown. One reason might be that the Feds didn’t want Marshall to be convicted for political optics reasons. Another might be that eels were not being regulated and there was no off season for them because not a lot of people wanted to eat them. And there may be other possible reasons.

    There would have bee no legal reason to mention lobsters in a criminal trial about eels. Mentioning lobsters would not have been relevant to the guilt or non-guilt of Donald Marshall.

    The Court does not issue “advisory opinions” as such, but the government can present a reference case for a ruling on whether a planned action would be unconstitutional. This is to be used sparingly and only for urgent issues that cannot be resolved in any other way.

    Anyone in government can take an hour to read the two Marshall sets of reasons, as I did. There is no reason to accept the media’s “Marshall myth” that Indigenous fishers can fish whenever they want for whatever species they want.

    If the government wants the law to be different than what the Court announced in Marshall it should enact the law it wants, not pretend it is already what it wants.

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