What was R. v. Marshall (1999)?

R. v. Marshall is the pair of Supreme Court of Canada decisions issued in September and November 1999 that affirmed Mi'kmaq, Maliseet, and Peskotomuhkati treaty rights to fish, hunt, and gather for a moderate livelihood under the Peace and Friendship Treaties of 1760 and 1761. The decisions affirmed the modern application of pre-Confederation treaties across the Maritimes (Nova Scotia, New Brunswick, Prince Edward Island, and the Gaspe peninsula of Quebec) and reshaped Atlantic fisheries policy.

Donald Marshall Jr., a Mi'kmaq man from Membertou First Nation in Nova Scotia, was charged in August 1993 with three federal Fisheries Act offences for catching and selling 463 pounds of eels. Marshall (whose wrongful conviction for murder in 1971 had triggered the Marshall Inquiry in 1989 into Nova Scotia's criminal-justice system) defended on the ground that the 1760 to 1761 Peace and Friendship Treaties guaranteed his right to fish for a moderate livelihood. The Supreme Court of Canada acquitted him in Marshall (No. 1) (September 17, 1999) by a 5-2 majority. After intense reaction in non-Indigenous Maritime fishing communities, the court issued Marshall (No. 2) on November 17, 1999, clarifying that the treaty right was subject to federal regulation for purposes of conservation and other compelling public objectives.

The Marshall decisions are based on the Peace and Friendship Treaties signed in 1760 and 1761 between the British Crown and the Mi'kmaq, Maliseet, and Peskotomuhkati nations. The treaties promised the nations the right to trade at British truckhouses (trading posts), which the court interpreted as implying the right to obtain trade goods (including fish, fur, and game) in the first place. The court applied the Sparrow (1990) and Badger (1996) frameworks for section 35 protection, holding that the Crown could regulate but not extinguish the right.

The Marshall decisions reshaped Atlantic fisheries. The federal Department of Fisheries and Oceans launched the Marshall Response Initiative in 2000 to negotiate access agreements with Mi'kmaq, Maliseet, and Peskotomuhkati First Nations, transferring commercial licences and providing training and vessel investments. The 2020 Mi'kmaq lobster fishery in southwest Nova Scotia (run by the Sipekne'katik First Nation outside the federal regulatory season) drew national attention to ongoing tensions over the scope of the moderate-livelihood right. Federal-Indigenous co-management agreements with the Listuguj, Sipekne'katik, and Esgenoopetitj First Nations and others continue to operationalise the Marshall framework.