25th Anniversary of the Marshall Decision
Canada Must Uphold the Hereditary and Treaty Rights of the Mi'kmaq
Sipekne'katik First Nation gathered in
Saulnierville, Nova Scotia, September 17, 2020, to celebrate the
opening of the first Mi'kmaq Moderate Livelihood fishery, 21
years after the R. v.
Marshall decision.
September 17 marked the 25th Anniversary of the Marshall Decision -– a landmark ruling by the Supreme Court of Canada that affirmed the right of First Nations to fish, hunt and gather in pursuit of a moderate livelihood. The ruling involved Donald Marshall Jr., a Mi'kmaq man from the Membertou First Nation who was arrested and charged in August 1993 with selling eels without a licence and doing so outside the Department of Fisheries and Oceans (DFO) regulated fishing season.
Marshall had already spent 11 years in jail for a murder he did not commit and for which he was finally exonerated. He and the community courageously fought his persecution and arrest by the DFO all the way to the Supreme Court for over six years. The case was fought on the basis that the Peace and Friendship Treaties of 1760-1761 granted First Nations' members the right to fish and sell eels. The Supreme Court ruling affirmed the right of Mi'kmaq, Wolastoqiyik and Peskotomuhkati peoples to fish, hunt and gather to earn a "moderate livelihood."
For over 20 years the federal government took no measures to comply with the Supreme Court ruling, including by refusing to define what constitutes a "moderate livelihood." Additionally, other Indigenous fishers who asserted their treaty and hereditary right to fish in accordance with the Marshall Decision, were violently attacked. In Burnt Church in 2000 DFO agents seized more than 900 lobster traps, impounded fishing boats and arrested more than 14 people. Meanwhile, private interests including Clearwater, North America's largest shellfish producer, were given a near monopoly on lobster fishing in the region to the detriment of Indigenous and non-Indigenous fishermen and the conservation of the fishery itself.
In the face of government inaction to implement the Marshall Decision and violent state attacks on Indigenous fishers who asserted their rights, on the 21st anniversary of the Marshall Decision in 2020, the Sipekne'katik First Nation launched its own self-regulated moderate livelihood fishery. Government officials criminalized their actions and incited violent attacks while the RCMP stood by. At the time the Canadian people and the people of Quebec stood by the Mi'kmaq harvesters who have established their self-regulated fishing rights as a fact despite ongoing criminalization by the Canadian state.
In March this year, two Mi'kmaq fishers were arrested and their equipment seized by DFO officers. Their cell phones and shoes were taken and they were left stranded at a gas station six hours from their homes. The chief and their communities immediately denounced this act and demanded justice. In July the DFO announced an internal inquiry into this incident, which the Mi'kmaq have challenged as inadequate. "This has to be more than just a review into this one incident," said Chief Gerald Toney of the Assembly of Nova Scotia Mi'kmaw Chiefs, "The problems run much deeper than the actions of a few individuals. Our harvesters continue to experience issues on the waters and Canada needs to be better than that."
The Peace and Friendship Treaties of 1760-1761 signed between the Crown and the Mi'kmaq and Maliseet are treaties between equals. The Canadian state which represents the Crown continues to refuse to recognize this equality and the sovereignty of Indigenous nations such as the Mi'kmaq which is a problem that the Canadian people have to solve. The Peace and Friendship Treaties do not give Canada and its Supreme Court the right to unilaterally determine what constitutes a "moderate livelihood." Canadians must step up and strengthen their unity with Indigenous Peoples and fight for new political arrangements in Canada so that the relations between Canada and Indigenous Peoples are established on a modern basis.
(Marshall Fact Sheet, TML Weekly, Volume 50, Number 41, October 31, 2020)
This article was published in
September 30, 2024
Article Link:
https://cpcml.ca/ITN2024/Articles/TI54217.HTM
Website: www.cpcml.ca Email: editor@cpcml.ca