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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?

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