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 Indigenous North Americas  Canadaportal |
R v Marshall (No 1) [1999] 3 S.C.R. 456 and R v Marshall (No 2) [1999] 3 S.C.R. 533 are two decisions given by the Supreme Court of Canada on a single case regarding a treaty right to fish.
The Court held in the first decision that Donald Marshall's catching and selling of eels was valid under 1760 and 1761 treaties between the Mi'kmaq and Britain and that federal fishery regulations governing a closed fishing season and the regulating and the requirement of licences to fish and sell the catch would infringe the treaty right.
In 1999, the court of appeal heard the Marshall case, indicated that the trial judge had made an error in law and overturned the decision (p. 89). The appeal judge Justice Binnie, stated that the trial judge's error was in not focusing attention on the Maliseet–British treaty of 1 February 1760.
A 2009 book by a former Nova Scotia crown attorney, Alex M Cameron, who had argued similar cases for the Province against Indigenous logging, was sharply critical of the Supreme Court's decision in R v Marshall. [1] Other commentators, including Greg Flynn (2010), and Dianne Pothier (2010), have seen Alex Cameron's analysis as lacking "nuance and balance," and as being "fundamentally flawed" [2]
Cameron argues, among other things, that the Supreme Court was wrong in asserting that it was being asked to decide on the rights of all Mi'kmaq. He holds that the courts were being asked to decide only on the right of an individual Mi'kmaq from Cape Breton, Donald Marshall. [3]
In its second decision, the Supreme Court elaborated the extension of Indigenous treaty rights stating that they are still subject to regulation when conservation is proven to be a concern or other public interests.
Both decisions proved highly controversial. The first elicited anger from the non-Indigenous fishing community for giving seemingly-complete immunity to Indigenous peoples to fish. [4] The second decision, which was claimed to be an "elaboration," was seen as a retreat from the first decision and angered Indigenous communities. The second decision was issued on a motion for re-hearing the case brought by fishermen's associations in which the court elaborated in particular about such things as the relationship between treaty rights and conservation that had been more implicit in the first decision.
Canadian federalism involves the current nature and historical development of the federal system in Canada.
The Mi'kmaq are a First Nations people of the Northeastern Woodlands, indigenous to the areas of Canada's Atlantic Provinces, primarily Nova Scotia, New Brunswick, and Newfoundland, and the Gaspé Peninsula of Quebec as well as Native Americans in the northeastern region of Maine. The traditional national territory of the Mi'kmaq is named Miꞌkmaꞌki.
Donald Marshall Jr. was a Mi'kmaw man who was wrongly convicted of murder. The case inspired a number of questions about the fairness of the Canadian justice system, especially given that Marshall was Aboriginal; as the Canadian Broadcasting Corporation put it, "The name Donald Marshall is almost synonymous with 'wrongful conviction' and the fight for native justice in Canada." The case inspired the Michael Harris book, Justice Denied: The Law Versus Donald Marshall and the subsequent film Justice Denied. His father, Donald Marshall Sr., was grand chief of the Mi'kmaq Nation at the time.
Roland Almon Ritchie, was a Canadian lawyer and puisne justice of the Supreme Court of Canada.
Section 24 of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated. Some scholars have argued that it was actually section 24 that ensured that the Charter would not have the primary flaw of the 1960 Canadian Bill of Rights. Canadian judges would be reassured that they could indeed strike down statutes on the basis that they contradicted a bill of rights.
Section 35 of the Constitution Act, 1982 provides constitutional protection to the indigenous and treaty rights of indigenous peoples in Canada. The section, while within the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms. The section does not define the term "aboriginal rights" or provide a closed list; some examples of the rights that section 35 has been found to protect are fishing, logging, hunting, the right to land and the right to enforcement of treaties. There remains a debate over whether the right to indigenous self-government is included within section 35. As of 2006 the Supreme Court of Canada has made no ruling on the matter. However, since 1995 the Government of Canada has had a policy recognizing the inherent right of self-government under section 35.
R v Van der Peet, [1996] 2 S.C.R. 507 is a leading case on Aboriginal rights under section 35 of the Constitution Act, 1982. The Supreme Court held that Aboriginal fishing rights did not extend to commercial selling of fish. From this case came the Van der Peet test for determining if an Aboriginal right exists. This is the first of three cases known as the Van der Peet trilogy which included R v NTC Smokehouse Ltd and R v Gladstone.
R v Marshall; R v Bernard 2005 SCC 43 is a leading Aboriginal rights decision of the Supreme Court of Canada where the Court narrowed the test from R. v. Marshall for determining the extent of constitutional protection upon Aboriginal practices. The Court held that there was no right to commercial logging granted in the "Peace and Friendship treaties of 1760", the same set of treaties where the right to commercial fishing was granted in the R. v. Marshall decision. This decision also applied and developed the test for aboriginal title from Delgamuukw v British Columbia.
Mackeigan v Hickman, [1989] 2 S.C.R. 796 is a leading Supreme Court of Canada decision on judicial independence. The Court unanimously held that to require a federal judge to explain his or her decisions would violate the principle of judicial independence.
Miron v Trudel, [1995] 2 S.C.R. 418 is a famous Supreme Court of Canada decision on equality rights under section 15 of the Canadian Charter of Rights and Freedoms where the Court found "marital status" was an analogous ground for discrimination. The Court held that an insurance benefit provided only to married couples discriminated against common-law couples.
The Burnt Church Crisis was a conflict in Canada between the Mi'kmaq people of the Burnt Church First Nations (Esgenoôpetitj) and non-Aboriginal fisheries in New Brunswick and Nova Scotia between 1999 and 2002.
Chippewas of Sarnia Band v Canada (AG), 2000 CanLII 16991, 51 OR (3d) 641; 195 DLR (4th) 135 was a decision of the Court of Appeal for Ontario concerning aboriginal title in Canada.
St. Marys Bay south western Nova Scotia, Canada, is surrounded by the modern municipal districts of Clare Municipal District and Digby.
Treaty Day is celebrated by Nova Scotians annually on October 1 in recognition of the Treaties signed between the British Empire and the Mi'kmaq people. The first treaty was signed in 1725 after Father Rale's War. The final Halifax Treaties of 1760–61, marked the end of 75 years of regular warfare between the Mi'kmaq and the British. The treaty making process of 1760–61, ended with the Halifax Treaties (1760–61).
Gabriel Sylliboy was the first Mi'kmaq elected as Grand Chief (1919) and the first to fight for the recognition by the state of Canada of the treaties between the government and the First Nations people.
The Treaty of 1752 was a treaty signed between the Mi'kmaq people of Shubenacadie, Nova Scotia and the governor of Nova Scotia on 22 November 1752 during Father Le Loutre's War. The treaty was created by Edward Cornwallis and later signed by Jean-Baptiste Cope and Governor Peregrine Hopson. Cornwallis was at the signing at Cope's request.
Donald Joseph Marshall Sr. was a Grand Chief of the Mi'kmaq who lived at Membertou First Nation near Sydney, Nova Scotia. He served as Grand Chief for 27 years, from 1964 until his death in 1991. His son, Donald Marshall Jr., was wrongly convicted of murder and rose to prominence again as the primary petitioner in the landmark Supreme Court of Canada case of R v Marshall [1999] 3 SCR 45 regarding native fishing rights.
The Peace and Friendship Treaties were a series of written documents that the Crown of the Royal House of Stuart signed bearing the Authority of Great Britain between 1725 and 1779 under the English Crown and Throne of the Royal House of Stuart with various Mi’kmaq, Wolastoqiyik (Maliseet), Abenaki, Penobscot, and [[Passamaquo] peoples living in parts of what are now the Maritimes and Gaspé region in Canada and the northeastern United States. Primarily negotiated to reaffirm the peace after periods of war and to facilitate trade, these treaties remain in effect to this day.
The 2020 Mi'kmaq lobster dispute is an ongoing lobster fishing dispute between Sipekne'katik First Nation members of the Mi'kmaq and non-Indigenous lobster fishers mainly in Digby County and Yarmouth County, Nova Scotia. The dispute relates to interpretations of R v Marshall, a 1999 Supreme Court of Canada ruling upholding the Halifax Treaties, empowering Indigenous Canadians the right to fish. Non-Indigenous fishers negatively reacted to off-season fishing activities of a self-regulated Indigenous lobster fishery, mainly citing concerns of potential overfishing.
Alexander Denny, otherwise known as Kji-keptin Alex Denny of the Mi'kmaq Grand Council, both a founding member and two-term president of the UNSI, was most prominently known for the role he played in the ongoing battle for recognition of Mi'kmaq treaties and Aboriginal rights. Born to the Eskasoni First Nation and raised by two elders in the community, Denny was taught the importance of Mi'kmaq treaties from a young age. His passion for and knowledge of his community ultimately led Denny to be credited with attaining linguistic and political rights for the Mi'kmaq Nation at an international level. Additionally, It was Denny and the UNSI that organized the very first Treaty Day.