Aboriginal and Treaty Rights in the Maritimes: The Marshall Decision and Beyond

J.R. (Jim) Miller is Canada Research Chair of History at the University
of Saskatchewan. He is the author of Skyscrapers Hide in the Heavens: A
History of Indian-White Relations in Canada and co-editor of the
Canadian Historical Review.

The Marshall decisions (there were two) that erupted from the Supreme
Court of Canada in the autumn of 1999 created consternation and
controversy for both First Nations and non-Natives in Atlantic Canada.
This treaty-rights case revolving around the entitlement to fish has
been outlined and assessed admirably by Thomas Isaac, a Vancouver-based
lawyer and recognized expert on Canadian Aboriginal law.

Isaac appropriately situates his analysis of Marshall in a lengthy
consideration of Native rights in the Maritimes, the legislative and
constitutional heritage affecting Aboriginal and treaty rights in Canada
generally, and previous decisions that constitute the judicial context
of this case. Chapter 5, which analyzes the 1999 Marshall decisions, is
a model of clear and accessible writing about complex legal matters, but
the entire volume is noteworthy for the author’s care in explaining
legal matters in language that educated nonlawyers should be able to
understand. Isaac’s prose ensures that his message comes through
clearly.

What is that message? Isaac finds that the majority decision of the
Supreme Court of Canada was a radical shift in interpreting treaty
rights, with most justices apparently reading into legal history a right
they believed ought to exist, whether the record showed it or not.
Moreover, he argues convincingly that the two rulings of the Court on
Marshall were consistent in balancing a Mi’kmaq treaty right to fish
with the Crown’s right, under strict conditions, to regulate the
exercise of that right. Finally, Isaac repeatedly and rightly condemns
the federal government for its failure to respond to the rulings by
negotiating “a sensitive regulatory regime” for a treaty-based First
Nations fishery that both respects treaty rights and balances the
interests of Mi’kmaq and non-Native fishers.

Aboriginal and Treaty Rights in the Maritimes is a model of clear and
readable analysis of a complex public policy issue facing Canadians. It
should be required reading for all governmental leaders, both non-Native
and First Nations.