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''R v Marshall (No 1)''
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.
Full text
for ''R v Marshall (No 1)'' via CanLII
for ''R v Marshall (No 2)'' via CanLII {{DEFAULTSORT:Marshall 1999 in Canadian case law Canadian Aboriginal case law Supreme Court of Canada cases
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3 S.C.R. 456 and ''R v Marshall (No 2)'' 999 999 or triple nine most often refers to:
* 999 (emergency telephone number), a telephone number for the emergency services in several countries
* 999 (number), an integer
* AD 999, a year
* 999 BC, a year
Media
Books
* 999 (anthology), ''99 ...
3 S.C.R. 533 are two decisions given by the Supreme Court of Canada
The Supreme Court of Canada (SCC; , ) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants eac ...
on a single case regarding a treaty right to fish.
Decision No. 1
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.
Commentary
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''. 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" 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.Decision No. 2
In its second decision, theSupreme Court
In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
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. 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.
See also
* Burnt Church Crisis * Burying the Hatchet ceremony (Nova Scotia) * Canadian Aboriginal case law *The Canadian Crown and First Nations, Inuit and Métis
The association between the monarchy of Canada and Indigenous peoples in Canada stretches back to the first interactions between North American Indigenous peoples and European colonialists and, over centuries of interface, treaties were estab ...
* Exclusive Economic Zone
An exclusive economic zone (EEZ), as prescribed by the 1982 United Nations Convention on the Law of the Sea, is an area of the sea in which a sovereign state has exclusive rights regarding the exploration and use of marine natural resource, reso ...
* ''Indian Act
The ''Indian Act'' () is a Canadian Act of Parliament that concerns registered Indians, their bands, and the system of Indian reserves. First passed in 1876 and still in force with amendments, it is the primary document that defines how t ...
''
* Indian Health Transfer Policy (Canada)
The Canadian Indian Health Transfer Policy provides a framework for the assumption of control of health services by Indigenous peoples in Canada and set forth a developmental approach to transfer centred on the concept of self-determination in heal ...
* Numbered Treaties
The Numbered Treaties (or Post-Confederation Treaties) are a series of eleven treaties signed between the First Nations, one of three groups of Indigenous Peoples in Canada, and the reigning monarch of Canada ( Victoria, Edward VII or George ...
* '' R. v. Marshall; R. v. Bernard''
* Section Thirty-five of the Constitution Act, 1982
* Treaty Day (Nova Scotia)
* 2020 Mi'kmaq lobster dispute
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 in ...
References
Further reading
* Alex M. Cameron. ''Power without law: The Supreme Court of Canada, the Marshall decisions, and the failure of judicial activism''. Montreal: McGill-Queens. 2009. * Dianne Pothier, "Book Review of Alex M. Cameron, Power Without Law: The Supreme Court of Canada, the Marshall Decisions, and the Failure of Judicial Activism", 33 ''Dalhousie Law Journal'' 189, 2010 https://ssrn.com/abstract=2130714 * Greg Flynn, 2010. Book Review of Alex M. Cameron, ''Power Without Law: The Supreme Court of Canada, the Marshall Decisions, and the Failure of Judicial Activism''. ''Canadian Public Administration'', 53 (no. 2), p 289. *External links
Full text
for ''R v Marshall (No 1)'' via CanLII
for ''R v Marshall (No 2)'' via CanLII {{DEFAULTSORT:Marshall 1999 in Canadian case law Canadian Aboriginal case law Supreme Court of Canada cases