Case Comment on R. v. Marshall

This comment is about the judgment of the majority of the Supreme Court of Canada in R. v. Marshall dated 17 September 1999, as varied by a memorandum of the Court dated 30 September 1999. 1 The comment focuses on the majority's decision that certain specific treaties contain a specific term.2 The specific treaties are the treaties entered into in 1760 and 1761 between the Governor of Nova Scotia, on the one hand, and the chiefs of various Mi'kmaq villages, on the other.3 The specific term is one that conferred on the various tribes "a treaty right to continue to obtain necessaries through hunting and fishing by trading the products of those traditional activities subject to restrictions that can be justified under the Badger test."4The comment deals only with the legal analysis and reasoning of the majority judgment.It has nothing to say about the appropriate way of dealing with the legal relationships between the general community and aboriginal peoples, nor does it have anything to say about what the fishing-right extends to or the extent to which it can be regulated.LL.D. (Hon.),Q.C., of the Alberta Bar.(1999), 177 D.L.R. (4th) 513 [hereinafter Marshall].It is not necessary, for the purposes of this note, to refer to the Supreme Court of Canada's decision on the application for a rehearing, reported at ( 1999), 179 D.L.R. (4th) 193.Binnie J. wrote the majority decision on behalfof himself, Lamer C.J.C., L'Heureux-Dube, Cory and Iacobucci JJ.McLachlin J. (as she then was) wrote the dissent, with Gonthier J. concurring.Marshall, supra note I at 519, para.3 of the judgment says that the trial judge "accepted as applicable the terms of a Treaty of Peace and Friendship signed on March I 0, 1760."This does not actually say that the March I 0, 1760 treaty applies to Mr. Marshall, merely that its terms apply.A reference in para.4 to "the treaty" seems to make the treaty itself applicable and so do references in paras.5 and 7, though they stop short of saying so.There is an occasional reference in the majority judgment to "the 1760-1761 treaties" as if it is the group of treaties which applies, which was the way the trial judge put it, and is consistent with the positions taken at trial by both the Crown and Mr. Marshall.Presumably, if one finds a treaty dated in 1760 or 1761 between the Crown and a Mi'kmaq group, one can conclusively assume that it contains the fishing-right term which the majority found to be contained in the March I 0, 1760 treaty, as the '' 1760-1761 treaties" are said to be identical.However, no list of the treaties which contain the term is given in the judgment.Ibid.at 546, para.56.This note will usually refer only to the fishing right, which is what was in issue in the case.While the hunting right is closely associated, different regulatory and factual considerations apply to it, and the Supreme Court judgment deals specifically with the fishing right.

Fetched live from OpenAlex and de-inverted. Abstracts are not stored in this database: the inverted indexes are 8.6 GB of the frame’s 9.3 GB of text, and the host has 13 GB free.