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R. v. Marshall (No. 1) [1999] 3 S.C.R. 456 and R. v. Marshall (No. 2) [1999] 3 S.C.R. 533 are two decisions given by the Supreme Court of Canada on a single case regarding a treaty right to fish.

Decisions

The case recognized the traditional role of fishing in Mi'kmaq culture. Shown is a seagoing canoe used for fishing and transport. Atlantic Neptune, ca 1770

The Court held in the first decision that the famous 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 licenses to fish and sell the catch would infringe the treaty right.

In the second decision the Court elaborated the extension of Aboriginal treaty rights stating that they are still subject to Canadian law. Both decisions proved highly controversial. The first elicited anger from the non-aboriginal fishing community for giving seemingly complete immunity to aboriginals to fish.^[1] The second decision, which was claimed to be an "elaboration", was seen as a retreat from the first decision and angered Aboriginal 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

• Exclusive Economic Zone
• The Canadian Crown and First Nations, Inuit and Métis
• Canadian Aboriginal case law
• Numbered Treaties
• Indian Act
• Section Thirty-five of the Constitution Act, 1982
• Indian Health Transfer Policy (Canada)

References

Further reading

• William C. Wicken, Mi'kmaq Treaties on Trial: History, Land and Donald Marshall Junior, University of Toronto Press, 2002

External links

• Full text for R v Marshall (No 1) via CanLII
• Full text for R v Marshall (No 2) via CanLII