The Marshall Decision and Native Rights

J.R. Miller, a professor of history, is Canada Research Chair 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.

When the Supreme Court of Canada in the autumn of 1999 upheld Mi’kmaq
fishing rights based on a 1760 treaty, resource industries in the
Maritimes were thrown into turmoil. As Mi’kmaq fishers and timber
harvesters claimed an untrammelled right to gather resources, regardless
of season and the established rights of non-Natives, the federal
government dithered and parts of New Brunswick and Nova Scotia came
dangerously close to widespread violence and destruction.

Historian Ken Coates, Dean of Arts at the Saint John campus of the
University of New Brunswick at the time of the decision, has put the
case and its aftermath into historical perspective in The Marshall
Decision and Native Rights. Coates’s professional training and his
experience in the Yukon, British Columbia, and New Zealand equipped him
particularly well to explain the background, content, and implications
of the Supreme Court of Canada decision for the Maritimes and Canada,
for Native and non-Native Canadians.

Relying on contemporary media reports and a wide reading of the
historical and legal literature relevant to his topic, Coates provides a
clear, readable, and thought-provoking summary of the decision that held
that Mi’kmaq are entitled by treaty to fish for “a moderate
income,” and that other interest groups must accommodate this historic
treaty right. The Marshall Decision sets the 1999 Supreme Court decision
against the background of an influential 1998 New Brunswick decision in
a logging case that temporarily conferred on First Nations aboriginal
harvesting rights, as well as against 18th-century relations between the
Mi’kmaq and the British that culminated in the 1760 treaty at the
centre of the Marshall case. Finally, its concluding chapter probes the
implications of this decision for aboriginal–newcomer relations in the
Maritimes and across Canada.

The Marshall Decision and Native Rights is an engrossing and thoughtful
introduction to a critically important area of contemporary public
debate: the aboriginal and treaty rights of First Nations, and what
those rights, increasingly recognized by the country’s highest court,
mean to everyone in Canada in the 21st century.