Treaty signed in 1760 still valid, says top court

The Calgary Herald
Saturday, September 18, 1999

OTTAWA. The Supreme Court has bestowed increased importance on historical agreements by upholding a 240-year-old treaty between the King of England and Mi'kmaq Indians.

The high court's 5-2 decision Friday striking down Donald Marshall Jr.'s 1996 conviction for catching and selling eels without a licence and in the off-season establishes a new, deeper approach to interpreting native treaty rights.

''It's been hard work but hard work pays off in the end,'' Marshall said Friday in Halifax.

Marshall, the man who spent 11 years imprisoned for a murder he didn't commit, said he had dealt with bigger problems and was determined not to quit his treaty case.

In 1993, he sold 200 kilograms of eels caught off Nova Scotia for $787.10. He was convicted and appealed his conviction to the Supreme Court.

Marshall maintained that under the treaty signed between the Mi'kmaq and King George II in 1760, he had the right to catch and sell fish without government intervention.

The Supreme Court agreed Friday, but stressed that the treaty limits the Mi'kmaq's fishing rights to daily needs, or what it called a ''moderate livelihood'' including ''food, clothing and housing, supplemented by a few amenities,'' Justice Ian Binnie wrote for the majority.

The treaty does not allow those governed by it to establish factory-scale commercial ventures, the court said.

In reaching its decision, the Supreme Court's analysis of the treaty went beyond what the document stated but what it meant to the parties involved.

The high court examined historical records, other documents and looked at expert testimony in the case, establishing a degree of measurement that may set a new approach to treaty disputes.

The ruling stands as the latest in a string of positive decisions for natives by Canada's top courts.

In the wake of favourable rulings for natives in the areas of taxation and land rights, Supreme Court justices have identified native rights as being among the chief issues facing the judiciary heading into the next century.

Although Friday's decision specifically concerns natives represented by the 1760 treaty with the Mi'kmaq, the Maliseet First Nation and the Passamaquody First Nation living in New Brunswick, its impact could reach into all outstanding legal treaty disputes.

The federal government immediately began assessing the depth of Friday's ruling.

The Department of Indian Affairs is currently litigating 334 outstanding treaty cases. They encompass hundreds of billions of dollars of resources in such areas as oil and gas, fishing, logging, land, as well as taxation cases.

''We are studying the impact of today's Supreme Court decision. We're consulting with the Justice Department regarding the implication on treaties, '' Steve Outhouse, spokesman for Indian Affairs said Friday.

Native groups also began weighing the virtues of Friday's ruling, said Chief Ron Derrickson of the Westbank Tribal Nation, which is embroiled in a dispute with the British Columbia government over ownership of logging and land rights near Kelowna.

''I am delighted with the decision. The Supreme Court recognizes that aboriginal people do have significant rights,'' said Derrickson. He wants the band's lawyers to examine Friday's ruling for any application to its case, expected to go to the B.C. Supreme Court next week.

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{ au: Rick Mofina dt:09/18/99 sc: cherald}