R. v. Marshall, 1999 CanLII 665 (SCC)

This case was heard in the Supreme Court of Canada.

Donald Marshall Jr. was convicted of offences under the federal Fisheries Act, the Maritime Provinces Fishery Regulations, and the Fishery (General) Regulations after catching and selling eels without a license, with a prohibited net, and during close times. Mr. Marshall alleged that under treaties signed between the Mi'kmaq and the Crown in 1760-61, he had a treaty right to fish that exempted him from compliance with the regulations. The Supreme Court of Nova Scotia and the Nova Scotia Court of Appeal rejected his argument, but the Supreme Court of Canada held that Mr. Marshall should be acquitted.

The Supreme Court analyzed the treaties of 1760-61 and held that not only did they give the historical Mi'kmaq positive rights to bring fish and wildlife to trading truckhouses established by the Crown, but they also created a continuing treaty right "to continue to obtain necessaries through hunting and fishing by trading the products of [...] traditional activities" such as hunting and fishing. The Court held that Mr. Marshall had been fishing to "obtain necessaries," and had therefore been exercising an existing treaty right that exempted him from compliance with the regulations. 

To read an earlier decision related to this case, go to R. v. Marshall, 1997 CanLII 14992 (NS CA). 

View the Decision on CanLII: https://www.canlii.org/en/ca/scc/doc/1999/1999canlii665/1999canlii665.html?autocompleteStr=R%20v%20Marshall&autocompletePos=1

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