[1999] 3 S.C.R. R. v. Marshall 456
Donald John Marshall, Jr. Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for New Brunswick,
the West Nova Fishermen's Coalition,
the Native Council of Nova Scotia
and the Union of New Brunswick Indians Interveners
Indexed as: R. v. Marshall
File No.: 26014.
1998: November 5; 1999: September 17.
Present: Lamer C.J. and L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and
Binnie JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR NOVA SCOTIA
Indians -- Treaty rights -- Fishing rights -- Accused, a Mi'kmaq Indian, fishing with
prohibited net during close period and selling fish caught without a licence in violation of
federal fishery regulations -- Whether accused possessed treaty right to catch and sell fish
that exempted him from compliance with regulations -- Mi'kmaq Treaties of 1760-61 --
Maritime Provinces Fishery Regulations, SOR/93-55, ss. 4(1)(a), 20 -- Fishery (General)
Regulations, SOR/93-53, s. 35(2).
The accused, a Mi'kmaq Indian, was charged with three offences set out in the federal
fishery regulations: the selling of eels without a licence, fishing without a licence and
fishing during the close season with illegal nets. He admitted that he had caught and sold
463 pounds of eels without a licence and with a prohibited net within close times. The
only issue at trial was whether he possessed a treaty right to catch and sell fish under the
treaties of 1760-61 that exempted him from compliance with the regulations. During the
negotiations leading to the treaties of 1760-61, the aboriginal leaders asked for
truckhouses "for the furnishing them with necessaries, in Exchange for their Peltry" in
response to the Governor's inquiry "Whether they were directed by their Tribes, to
propose any other particulars to be Treated upon at this Time". The written document,
however, contained only the promise by the Mi'kmaq not to "Traffick, Barter or
Exchange any Commodities in any manner but with such persons, or the Manager of such
Truckhouses as shall be appointed or established by His majesty's Governor". While this
"trade clause" is framed in negative terms as a restraint on the ability of the Mi'kmaq to
trade with non-government individuals, the trial judge found that it reflected a grant to
them of the positive right to bring the products of their hunting, fishing and gathering to a
truckhouse to trade. He also found that when the exclusive trade obligation and the
system of truckhouses and licensed traders fell into disuse, the "right to bring"
disappeared. The accused was convicted on all three counts. The Court of Appeal upheld
SNIPPETS:
Indians -- Treaty rights -- Fishing rights -- Accused, a Mi'kmaq Indian, fishing with
During the negotiations leading to the treaties of 1760-61, the aboriginal leaders asked for
While this "trade clause" is framed in negative terms as a restraint on the ability of the
He also found that when the exclusive trade obligation and the system of truckhouses and
It concluded that the trade clause did not grant the Mi'kmaq any rights, but represented a
Firstly, even in a modern commercial context, extrinsic evidence is available to show that a
extrinsic evidence of the historical and cultural context of a treaty may be received even if
Thirdly, where a treaty was concluded orally and afterwards written up by representatives of
The trial judge's narrow view of what constituted "the treaty" led to the equally narrow
If the law is prepared to supply the deficiencies of written contracts prepared by
The trade arrangement must be interpreted in a manner which gives meaning and substance to
In the absence of any justification of the regulatory prohibitions, the accused is entitled
The British, in exchange, undertook to provide the Mi'kmaq with stable trading outlets where
The exclusive trade and truckhouse system was a temporary mechanism to achieve peace in a
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