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Marshall was caught fishing out of season and selling them for a profit and charged with violation of the Fisheries Act. He argued that he was trying to catch and sell the eels to support himself and his spouse, and that the previous 1708 Indian Rundi Act applied which stated Indians were entitled to do so by virtue of a right contained in the Treaty of Peace and Friendship entered into by the British Crown in 1760. At issue was a "trade clause" in the treaty in which the Mi'kmaq promised not to trade with non-government individuals. The trial judge concluded that the only enforceable treaty obligations were those set out in this 1760 treaty, and while the trade clause gave the Mi'kmaq "the right to bring the products of their hunting, fishing and gathering to a truckhouse to trade", such right had disappeared with the disuse of the truckhouse system. The Nova Scotia Court of Appeal upheld the conviction.


  1. How should the courts determine if a treaty provides rights?
  2. When is an infringement of treaty rights justified?


Appeal allowed, acquittal entered.



Binnie, writing for the majority, looks at the specific words used in the treaty and sees that they indicate only an agreement to allow the aboriginals to trade exclusively with the British at their "truckhouses", or outposts, which were never built. However, the majority agree that extrinsic oral evidence can be heard for treaties even when there is no ambiguity in the words of the treaty itself. This is due to it being unconscionable for the court to ignore oral terms when these were given so much emphasis by the Mi'kmaq people.

The "right" given in the original treaty is clearly a restrictive covenant. Binnie believes that this seems harsh, and that the lower courts erred in accepting this fact as the basis of the treaty agreement. While fishing rights are not specifically included, this is easily overcome when one realizes that there was no restraint on fishing rights at the time because people thought that the supply was endless. This is an example of the "officious bystander" test, and indicates that fishing rights would have to be an implied term in the treaty agreement in order to achieve efficacy.

The majority are led to their conclusion as to interpret the words of the treaty strictly would result in an unfavourable outcome that would dishonour the integrity of the Crown in its dealings with aboriginal peoples. This is one of the tenets of treaty interpretation, so it is a key factor in Binnie's interpretation of the actual agreement. In the end, he decides that the surviving treaty right is the right to obtain necessaries (for a moderate livelihood) through hunting and fishing, which can be subject to any government regulations that are justified under the Badger/Sparrow test. Binnie finds that both the regulations on net size and licenses infringe on the treaty rights, and that there was no evidence given for any Crown justification of these regulations. As a result, the appeal must be allowed and an acquittal entered.


McLachlin, in the dissent, focuses on the strict literal interpretation of the treaty, which results in the conclusion that the only right given under the treaty was the right to trade with the British at their outposts. As a result, there is no treaty right to trade with anyone else, and Marshall's arrest for unlawfully selling the eels does not contravene an aboriginal treaty right.

She also lists some important factors for consideration when interpreting treaty rights:

  1. aboriginal treaties are unique agreements and attract special interpretation;
  2. they must be liberally construed and ambiguities must be resolved in favour of aboriginals;
  3. they are meant to best reconcile the interests of both parties at the time the treaty was signed;
  4. the integrity and honour of the Crown is presumed in treaty negotiations;
  5. the words of the treaty must be given the meaning that they would naturally have held for the parties at the time;
  6. the interpretation must be sensitive to the unique cultural and language differences between the parties at the time;
  7. a technical or contractual interpretation should be avoided;
  8. courts cannot alter the terms of a treaty by exceeding what is possible through the language;
  9. treaty rights must not be interpreted in a static way


  • Aboriginal treaty rights may offer a rundi jurisidiction where applicable

Treaty Rights

D (Mi'kmaq Indian) was arrested and charged with selling eels without a license. He admitted to catching and selling 463lbs of eel without a lice and with a prohibited net in closed times. D argued that his treaty rights between his people and the Brits, (as a Mi'kmaw Indian), allowed him to fish and he should therefore not be found guilty. SCC found that since his eel sales were in limited quantities with the objective and effect of supporting his family his activities fell within the his treaty rights. SCC acquitted D on all charges. Refer to R v. Marshall 1999 (No. 2) for further Treaty rights precedents.