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The Donald Marshall Decision
found not to apply to logs - does it apply to lobster?
Ottawa – The Stephen Marshall decision of the Nova Scotia
Supreme Court is good news for Maritime fishermen," said John
Cummins, MP (Delta-South Richmond). "Before conceding further
lobster or shrimp licenses on the assumption that aboriginals have
a special treaty right to these resources, fishermen would do well
to carefully study this recent logging rights appeal decision."
 The
Nova Scotia Supreme Court found in the Stephen Marshall
logging rights decision that -
* The Supreme Court of Canada was mistaken in its Donald
Marshall decision to assume that all bands had signed treaties in
1760-61: " In R v. Marshall the issue of whether all tribes
signed treaties was not decided based on evidence . . . the issue
of which bands had treaties will be decided by another court on
another day."
* Large areas of New Brunswick and Nova Scotia may be without
treaties, and therefore no treaty rights would arise in those
areas: "The Crown notes . . . fourteen of twenty-four bands
show no evidence of a treaty in 1760 . . . in 1764 there were
still bands who had not signed treaties."
* Treaty rights may not arise in all cases where treaties do
exist: "Other evidence is suggestive of the fact that there
were treaties of submission or simple oaths of allegiance that
involved no native demands or undertakings from the Crown."
*The Marshall treaty right arises only where there is a
specific treaty with a historic aboriginal community - where there
is no treaty, there can be no treaty right: "To ignore the
issue of whether there were treaties with particular bands would
render [the Donald Marshall decision] meaningless."
* "Logging was not a central, significant or defining feature of
the Mi’kmaq people or their economy at any time prior to contact
or after contact including the period when treaties were signed."
Was the commercial harvest of lobster a defining feature of the
Mi’kmaq people?
*Mi’kmaq technology would have allowed Mi’kmaq to exploit
mature timber resources . . . It would take forever to try and cut
larger trees down with an axe." Would Mi’kmaq technology have
allowed the Mi’kmaq to commercially exploit lobster?
* "There was no evidence the Mi’kmaq sold or traded in timber
up to the time of the treaties . . . no evidence the Mi’kmaq
participated in that industry or trade prior to 1760-61." Is
there evidence the Mi’kmaq participated in a commercial harvest or
trade in lobster?
"This decision makes it clear that the government response to the
Donald Marshall decision was based on Liberal policy rather
than any legal obligation arising from the decision," concluded
Cummins.
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