The Colonial Problem by Monchalin Lisa

Author:Monchalin, Lisa
Language: eng
Format: epub
Publisher: University of Toronto Press

Justice Binnie identified a broader interpretation of the treaty through an elaborate analysis of its wording and of its historical and cultural contexts. Extrinsic historical sources, such as earlier treaties between the Mi’kmaq and the British and the minutes of negotiating sessions between the British and the Maliseet (who had a comparable treaty with the British) were included in the analysis. Also included was expert evidence delivered at the trial. Based on this review, Justice Binnie concluded that the treaty was “partly oral and partly written.”37 The Marshall and the Sioui cases, then, recognize that Indigenous interpretations of treaties and of treaty rights deserve a place at the table. And, because the Marshall case involved a healthy majority of five to two and the Sioui case was unanimous, the Supreme Court strongly supported the need for more than a one-sided, technical interpretation of treaties.38

Shortly after this first Marshall decision, referred to as R. v. Marshall (No 1) [1999] 3 S.C.R. 456, the Supreme Court handed down a ruling in Marshall II, referred to as R. v. Marshall (No 2) [1999] 3 S.C.R. 533—which put significant limits on the first ruling. Acting on a motion put forward by the West Nova Fishermen’s Coalition, the Supreme Court agreed to rehear the case, although the court did make explicit that this fisherman’s coalition had no right to bring such a motion forward. The rulings from R. v. Marshall (No 2) added a “clarification” to the first Marshall decision, outlining that the Crown could limit the exercise of a treaty right if doing so “can be justified on conservation or other grounds.”39 So, although the Crown stipulated that it respected the Mi’kmaq peoples “limited commercial ‘right to fish,’” it claimed the authority to limit that right with justifiable regulatory mechanisms: “The federal and provincial governments have the authority within their respective legislative fields to regulate the exercise of a treaty right where justified on conservation or other grounds.”40

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