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The Marshall decisions

The Marshall decision is a landmark decision in Canada that affirmed First Nations’ treaty right to fish, hunt, and gather in pursuit of a moderate livelihood. The decision stemmed from the prosecution of Donald Marshall Jr., a Mi’kmaq member of the Membertou First Nation in Nova Scotia. In August 1993, Mr. Marshall caught and sold eel without a licence during the fishery’s off-season and he was charged under the federal Fisheries Act and the Maritime Provinces Fishery Regulations. Mr. Marshall was convicted of illegal fishing by Nova Scotia’s Provincial Court in 1996 and his convictions were upheld by the Nova Scotia Court of Appeal in 1997.

Mr. Marshall appealed his case to the Supreme Court of Canada. On September 17, 1999, the Supreme Court reversed Mr. Marshall’s convictions and affirmed the hunting, fishing and gathering rights promised to Indigenous peoples in the Peace and Friendship Treaties of 1760 and 1761. The first Supreme Court Marshall decision was followed up by a request for a rehearing of the appeal. This led to a second decision by the Supreme Court two months later in November 1999, in which the Court clarified important elements of the decision. Known as Marshall II, the second decision emphasized that the treaty rights could only be limited for conservation reasons or other compelling and substantial public objectives. The Supreme Court also explained that the Government of Canada could take into account economic and regional fairness among other similar considerations when regulating commercial fishing. The Government of Canada continues to work with First Nations in the Maritimes and Quebec to implement this right.

The Marshall decisions implicated 34 Mi’kmaq and Maliseet First Nations in New Brunswick, Prince Edward Island, Nova Scotia, and the Gaspé region of Quebec. In 2017, the Peskotomuhkati Nation at Skutik was also identified as a Nation implicated by the Marshall decisions.

Mi’kmaq and Maliseet First Nations and the Peskotomuhkati Nation at Skutik

Map showing the geographical location of the Mi’kmaq and Maliseet First Nations and the Peskotomuhkati Nation at Skutik

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