For Your Information Marshall Fact Sheet - Kwilmu'kw
Maw-klusuaqn Negotiation Office/Mi'kmaq Rights Initiative - 
September 17, 2020.
Sipekne’katik First Nation gathered in Saulnierville, Nova
Scotia, to celebrate the opening of the first
Mi’kmaq Moderate Livelihood fishery, 20 years after the R. v. Marshall
decision.
What Do the Marshall
Decisions Say? In September 1999, in the Donald
Marshall case, the Supreme Court of Canada held that a series
of Treaties signed 1760-61 by Mi'kmaq and the British Crown are still
valid. Known as the Peace and Friendship Treaties,
they provide that Mi'kmaq have the right to harvest and sell fish,
wildlife, and wild fruit and berries to provide a moderate livelihood.
In a second decision, released in November of 1999, the Court
'clarified' its earlier ruling. Together, these two decisions are known
as Marshall 1 and Marshall 2.
What Is a "Moderate Livelihood"? The
most significant clause in the 1760-61 Treaties is the so-called
"truckhouse clause" which the Supreme Court said means, in the
present-day context, a right to a moderate livelihood. The "truckhouse
clause" promised Mi'kmaq (and Wolastoqiyik and Peskotomuhkati) that
government-run truckhouses or trading posts would be established for
Mi'kmaq to sell their goods such as meat, furs, feathers, fish. In
return, Mi'kmaq, Wolastoqiyik and Peskotomuhkati promised only to trade
at the truckhouses. According to the Supreme Court,
the promise of a truckhouse and the promise to trade only at a
truckhouse is the equivalent of a right "to trade for necessaries" (the
European goods which, by 1760-61, Mi'kmaq had come to rely on) and not
a general right to trade for large economic gains.
"A
moderate livelihood includes such basics as "food, clothing and
housing, supplemented by a few amenities", but not the accumulation of
wealth..." (Marshall 1, para.59) Treaties
signed in 1760-61 by Mi'kmaq and the British Crown are still valid.
Are All Natural Resources and Foodstuffs Covered by the
Treaties? No. Mi'kmaq have the continued right
to harvest and sell whatever kinds of products Mi'kmaq had to trade in
the 1760s. Items which can be harvested and sold to earn a moderate
livelihood does not extend, for example, to logs. The Supreme Court of
Canada in R. v. Bernard; R. v. Marshall
("the logging case") found that when the Treaties were signed there was
so much wood available for lumber that incoming settlers would have no
need to purchase lumber from Mi'kmaq to build homes, barns, sheds, etc.
It found that while the Treaties protect Mi'kmaw rights to
harvest and dispose of some items, cutting and selling logs (commercial
logging) was not protected as a "logical evolution" of a traditional
trading activity. Where Can the
Moderate Livelihood Treaty Right Be Exercised?
While the Supreme Court spoke of
the 1760-61 Treaties as "local Treaties" exercised by individual
Mi'kmaq with community authority, the territoriality of the 1760-61
Treaties is unclear and the approach of the Assembly of Nova Scotia
Mi'kmaq Chiefs is that all Nova Scotia Mi'kmaq have the same rights
throughout the Province. Are There
Limitations on the Treaty Right to a Moderate Livelihood?  Yes. The Supreme
Court indicated that the exercise of Treaty rights, like the exercise
of Aboriginal rights, can be limited.
The Crown may
limit or infringe the right to a moderate
livelihood but there must be an over-riding public purpose for limiting
the exercise of the right -- such as conservation or public safety. Any
infringement must be the minimum needed to meet the public objective
and the Aboriginal group must be consulted before
the limitation on the right is imposed. Compensation must be provided
for infringement. This is known as "justification"; that is, the Crown
must demonstrate that the limits it places on the Treaty right are
justified because it is the only way to accomplish the over-riding
public purpose. Resources which are harvested to
obtain a moderate livelihood must be equitably shared with non-Mi'kmaw.
About the Kwilmu'kw Maw-klusuaqn Negotiation Office
Kwilmu'kw Maw-klusuaqn Negotiation Office (KMKNO) works on
behalf of the Assembly of Nova Scotia Mi'kmaq Chiefs in the
negotiations and consultations between the Mi'kmaq of Nova Scotia, the
Province of Nova Scotia and the Government of Canada. KMKNO
was developed by the Mi'kmaq for the Mi'kmaq. The
purpose of these negotiations and consultations is to implement our
Aboriginal and Treaty Rights from the Treaties signed by our ancestors
in the 1700s.
This article was published in
Volume 50 Number 41 - October 31, 2020
Article Link:
For Your Information: Marshall Fact Sheet - Kwilmu'kw
Maw-klusuaqn Negotiation Office/Mi'kmaq Rights Initiative
Website: www.cpcml.ca
Email: editor@cpcml.ca
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