In August 1993, Donald Marshall jr., a member of the Membertou First Nation, was stopped for fishing in Pomquet Harbour in Antigonish County, Nova Scotia, and his equipment was seized. Marshall caught 210 kilograms of eels, which he sold for $787.10 and was then charged with fishing without a licence, selling eels without a licence and fishing during a closed season. He claimed he was allowed to catch and sell fish by virtue of a treaty signed with the British Crown.
Marshall said he was catching and trading fish just as the Mi'kmaq people had done since Europeans first visited the coast of what is now Nova Scotia in the 16th century.
In September 1999, the Supreme Court of Canada confirmed that Donald Marshall Jr. had a treaty right to catch and sell fish. The Court found that Mi'kmaq and Maliseet people on the East Coast continue to have treaty rights to hunt, fish and gather to earn a moderate livelihood. These rights flow from the Peace and Friendship Treaties signed in 1760 and 1761 between the British Crown and the ancestors of the Mi'kmaq and Maliseet. As the Supreme Court described it, earning a "moderate livelihood" didn't mean an open-ended accumulation of wealth, rather it was securing the "necessaries." Further, the Supreme Court noted that these treaty rights are held by the community as a whole. This is because the treaties were negotiated by groups of Aboriginal peoples, not by individuals.
On November 17, 1999, the Supreme Court provided further clarification of its first ruling. The Court stated that Mi'kmaq and Maliseet treaty rights were not unlimited and the fishery could be regulated, including Aboriginal fishing activities. This means regulations can be introduced, if they can be justified for conservation or other important public objectives.
The Supreme Court also stated that the "gathering" referred to in the September judgement was not meant to include logging, minerals or offshore natural gas deposits, but that Aboriginal groups could continue to present these arguments in other court cases.
There are 34 Mi'kmaq and Maliseet First Nations in Nova Scotia, New Brunswick, Prince Edward Island and the Gaspé region of Quebec who are potentially affected by the Marshall decision.
R. v. Marshall (26014) November 17, 1999