Anthropology Professor Jane McMillan, who fished for eels with Donald Marshall Jr., leading to landmark Supreme Court decision on Indigenous treaty rights
Nearly 25 years after the Supreme Court upheld the Indigenous treaty right to fish for a moderate livelihood, many contentious issues remain to be settled, including the definition of moderate livelihood.
That was one clear message from a two-day conference last week at Mount Allison University called “Rough Waters: The Legacy of the Marshall Decisions.”
Another clear message was that Donald Marshall Jr., the man at the centre of the legal struggle for recognition of treaty rights, paid a heavy price for his involvement.
The Mt. A. conference included Indigenous leaders and scholars, historians, lawyers and economists who gathered to discuss the implications of the landmark 1999 Supreme Court ruling that dismissed charges of illegal fishing against Marshall.
“J.R. wanted nothing to do with the Canadian legal system,” Jane McMillan, Chair of the Anthropology Department at St. Francis Xavier University told the conference.
She explained that Donald Marshall, whom she calls J.R., was more than fed up with Canadian justice after serving 11 years in Dorchester Penitentiary for a murder he did not commit. A 1989 Royal Commission report on his wrongful conviction exposed gross incompetence and systemic racism in the Nova Scotia legal system leading to fundamental reforms in the administration of justice.
“You can only imagine how crushing it must be to live the life of a wrongly convicted person,” McMillan said in an interview with Warktimes. “Taking 11 years for the Canadian justice system to believe his truth was an exhausting effort.”
‘Liberating times’
McMillan and Marshall met in 1991 at the Misty Moon, then, a well-known night spot in Halifax. It was the beginning of their 13-year relationship during which they moved to Marshall’s home in Cape Breton where they began fishing for eels. Later, they transferred their nets to Pomquet Harbour in the Paq’tnkek Mi’kmaq territory on mainland Nova Scotia.
“The solace and the joy and the peace that he found in harvesting and being out on the water and being on the land and being with his friends and living in Mi’kmaq ways, was really regenerative, it was healing,” she says.
McMillan told the conference that for Marshall, earning a livelihood after years in prison, instilled a sense of purpose and self-worth.
“These were liberating times in so many ways,” she said, adding that eels are a traditional food, especially among Mi’kmaq elders, and Marshall was glad to share them whenever he could at weddings, funerals and other ceremonial occasions.
On August 24, 1993, Marshall and McMillan were on the water when a boat carrying armed Department of Fisheries and Oceans officers pulled alongside theirs.
In her 2018 book, Truth and Conviction: Donald Marshall Jr. and the Mi’kmaw Quest for Justice, she describes what happened when a fisheries officer asked to see their eel fishing licences.
Donald said he was Mi’kmaw and did not need a licence to fish.
“‘Everyone needs a licence,” the officer replied.
“‘I don’t need a licence. I have the 1752 treaty,” Donald responded.
Treaty rights
McMillan writes that Marshall believed his treaty rights were in full force because of a 1985 Supreme Court ruling that upheld a Mi’kmaq hunter’s rights under the Peace and Friendship Treaty of 1752. In addition, Section 35 of the 1982 Constitution Act recognizes and affirms existing aboriginal and treaty rights.
But authorities thought otherwise and laid charges for fishing with illegal gear, out of season and without a licence against both Marshall and McMillan. She said the charges against her were later dropped, but that it would take 2,222 days of on and off legal battles before the Supreme Court finally dismissed the case against Marshall and upheld the Mi’kmaq treaty right to hunt and fish for a “moderate livelihood.”
“It was a tremendous relief,” McMillan says, adding that Marshall recognized his case was a significant milestone for Indigenous people in Canada.
“His relief was abundantly clear, but then, with the outbreak of tensions and conflicts, he became very stressed,” she says, referring, for example, to violence between aboriginal and non-aboriginal people in Burnt Church and other places.
“He really wanted peace on the water, he wanted unity through the nation and he wanted leadership through the nation,” she adds.
Jane McMillan addressing the Rough Waters conference
“When people were ramming each other with boats and [there was] that violence, he was very, very concerned that somebody would die and he would somehow get the blame,” McMillan says.
“That was a giant concern of his.”
McMillan writes that the wrongful conviction and the official inquiry that followed as well as the protracted court battles over fishing rights took their toll on Donald Marshall’s health.
In 2002, he suffered a respiratory collapse and was told he would die without a double-lung transplant.
Although the transplant operation itself was successful, Marshall’s heavy regimen of anti-rejection drugs produced side effects.
“In some cases,” she writes, “the immunosuppressant medications can trigger psychiatric reactions. Normally soft spoken and fairly calm, Donald became extremely erratic and stressed.”
McMillan’s book tells how Marshall’s erratic behaviour led to more legal troubles and a period of confinement for psychiatric assessment in the East Coast Forensic Unit of the Central Nova Scotia Correctional Facility.
“I think a lot of indigenous people’s encounters with the law are a result of ongoing systemic discrimination, racism, surveillance by the justice system,” McMillan says.
“He was a well-known figure with a target basically on him and that leads to heightened conflict.”
Marshall’s health deteriorated in the following years because of complications from the double-lung transplant and, on August 6, 2009, he died at age 55.
Legacy of Marshall case
The Mt. A. conference heard a recorded video message from John G. Paul, executive director of the Atlantic Policy Congress of First Nations Chiefs highlighting some economic benefits of the Marshall ruling.
Paul said the economic value of the First Nations fishery had risen from $3 million before the Marshall ruling to $1.7 billion in 2019.
He also mentioned that seven Mi’kmaq communities in Atlantic Canada hold a 50% stake in Clearwater Seafoods, one of North America’s largest seafood companies.
Ken Coates, of the University of Saskatchewan, who has written extensively on the Marshall decision, also cited the Clearwater acquisition as one example of many successful Indigenous business partnerships across the country.
Coates said that although the Marshall decision was significant for recognizing Indigenous economic rights, it did not extend them beyond fishing and hunting to areas such as mining and forestry.
He mentioned that in Saskatchewan, municipalities with dwindling populations have successfully invited Indigenous First Nations to set up urban reserves helping to reverse the economic decline of dying towns and villages.
“Expanding First Nations’ rights benefits everybody,” Coates said, “both morally and economically.”
However, an economics paper presented by Barry Watson of the University of New Brunswick and co-authored by Stephen Law of Mount Allison and Burç Kayahan of Acadia University, found that the Marshall decision had only a modest effect on the overall economic well-being of First Nations communities in Atlantic Canada.
When the three economics professors studied Statistics Canada census data, they found mixed and limited results when it came to measuring improvements in income, unemployment rates, housing and levels of education.
Professor Patrick Augustine from the Faculty of Indigenous Knowledge, Education, Research and Applied Studies at the University of Prince Edward Island told the conference that any economic benefits are unevenly distributed on First Nations Reserves.
He said many Mi’Kmaq continue to live in poverty with young people resorting to drugs and alcohol to ease their pain.
“I don’t think [the] Marshall [decision] did us any favours,” he added.
The conference ended with a keynote address by Graydon Nicholas, former Lieutenant-Governor of New Brunswick and a Wolastoqey Elder, who serves as Chancellor and Chair in Native Studies at St. Thomas University.
Nicholas, who as a lawyer, was involved in several Indigenous treaty rights cases, emphasized that treaties are always “nation to nation” even though non-aboriginal politicians often have trouble understanding that.
He said a modern-day treaty would have to incorporate provisions of the United Nations Declaration on the Rights of Indigenous Peoples as well as all 94 Calls to Action from Canada’s Truth and Reconciliation Commission.
“It won’t be done overnight,” he predicted.
L-R: Keynote speakers Graydon Nicholas and Ken Coates with Mt. A. Politics Professor Mario Levesque who organized the Rough Waters conference
One could go back further in time in the shadows of our past when men often or not were like wanton boys pulling wings off flies all the way back to Vattel who drew what we consider today International law in 1758; Vattel says: “Treaties are no better than empty words, if actions do not consider them as respectable engagements, as rules which are to be inviolably observed by sovereigns , and held sacred throughout the whole earth.” Further in his writings: “He who violates a treaty, violates the same time the law of nations. Indeed mankind, Is, Doubly guilty, he does an injury to his ally, and he does an injury to all nations, and inflicts a wound on the great society of mankind.” From Helen Jackson A Century of Dishonor in the newly founded United States. Indigenous thought and British law would simply continue under a new name. Tragically not.
“Nicholas, who as a lawyer, was involved in several Indigenous treaty rights cases, emphasized that treaties are always “nation to nation” even though non-aboriginal politicians often have trouble understanding that.”
Most people likely have trouble understanding that, because in English the term “nation” is ambiguous. It is most commonly used as synonymous with “sovereign state”, meaning a sovereign political entity (Canada, USA, UK, France). It can also mean a people who share a common language, culture, and history without necessarily having sovereignty. If they have both, they’re a “nation state”.
If it’s going to be used in public discourse, a term like “nation” needs to be defined for the discourse to be meaningful, and to avoid unnecessary contention. It would be hard to argue that First Nations are sovereign states. They don’t exercise sovereignty. Nicholas appears to imply that they are nations in this sense, since one of the nations in his “nation to nation” is Canada, a sovereign state which is not culturally a nation state with a single culture and language, but a multicultural federation that includes First Nations.
In the case of a community like Fort Folly First Nation, how is the term “First Nation” meaningful at all? Is a community of about 50 people that shares a language and culture with other Mi’kmaq in the region a “nation” in any sense of the term? The question in no way detracts from Fort Folly, it’s intended to highlight the difficulty of having a meaningful examination of an important subject when there’s no agreement on the terms used.
Reconciliation will require some degree of consensus, and that begins with clarity about what the terms mean. Otherwise there will be constant misunderstandings, resentments, and lack of public acceptance.
What is sovereignty ?
Jon I can’t reference a lawyer. I could go back to the earliest days of the world. Livy, Grotius, Cicero, Aristotle and Seneca who played with such concepts of how people should relate to one another. My thinking about the “human condition” has always been so convoluted , I know things but cannot prove their origin.. Which I have been told fits the world we now inhabit. Certainly, some degree of consensus to what the ‘term Sovereignty” means helps with clarification.
You ask the question, “In the case of a community like Fort Folly First Nation, how is the term ‘first Nation” meaningful at all?”
My answer is it as meaningful as a simple maple leaf bordered by two red stripes sewn on a piece of cloth.
My answer is it as meaning full as a fiberglass Sandpiper erected in the village square.
Never the less lucky us certain interesting occurrences collided in the 18th Century.
1. Samuel Johnson’s Dictionary 1755.
2. 1776 American troops made a futile attack on Fort Beausejour.
3. The 1752 Peace and Friendship Treaty re affirming earlier treaty rights, that the independent Americans didn’t adhere to in their separation agreement with Britain..
So having bumped around all over the place just to say we need to start some place I’ll side with Councilor Dan Wilson of the Okanogan Indian Band (Being questioned as I write” When asked where he would start with King George 111’s Royal Proclamation establishing the protocols we are to follow. Although fragmented by war, famine and expulsion from the lands the first people occupied, cannot the first peoples still have statesmanship in all parts of the vast North American continent and have rights that are not written and codified, but their sovereignty fall under precedent law. or common law. Although, the nomadic tribes did not have codified laws, the British did recognize under King George 111’ reign that he invested the first peoples no written codes but own their natural laws (one could argue a gift to us) recognized the first peoples had treaty-making power.
Even today break away states hope that their neighbors will recognize their sovereignty.
“summum jus” Jon you are quite right , an ‘extreme right can cause extreme wrong.’ Precedent law helps in not taking the law literally. A start. I’m worried because we seem to be adopting more codified statues, than the growth that natural law assist.