R v Marshall

Marshall recognised that the 1760-61 Treaties of Peace and Friendship include a treaty right for Mi'kmaq to hunt, fish, and gather for trade up to a moderate livelihood. The decision triggered substantial fishery disputes (Burnt Church) and clarification (Marshall No 2).

Donald Marshall Jr was charged with selling 463 lbs of eels caught out of season without a licence. He defended on the basis of treaty rights under the 1760 Mi'kmaq treaties.

Do the 1760-61 treaties give a right to fish, hunt and gather for trade?

Yes — for trade leading to a moderate livelihood, not for unlimited commercial accumulation. Acquittal restored.

Treaties are interpreted liberally and in favour of the Indigenous parties; ambiguities are resolved against the Crown. Oral promises and the historical context are part of the treaty even if not in the written text. The 1760 truckhouse clause implies a corresponding right to acquire goods to trade — including fish — to a level enabling a moderate livelihood.

Binnie J held that the written treaty was incomplete; the surrounding negotiations included an exchange in which the Crown undertook to provide truckhouses for trade. The right to trade implies a right to acquire trade goods; otherwise the truckhouse provision is meaningless.

Watershed treaty-rights case. Provoked the Burnt Church confrontation in NB. Marshall No 2 (1999, same parties) clarified the Crown could regulate the fishery for conservation under Sparrow. Subsequent cases (Marshall/Bernard 2005) have refined the interplay of treaty rights and territorial use.

R v Marshall, [1999] 3 SCR 456, 1999 CanLII 665 (SCC).

Lamer CJ, L'Heureux-Dubé J, Gonthier J, Cory J, McLachlin J, Iacobucci J, Major J, Bastarache J, Binnie J