N.S. Natives' win on fishing a legal landmark

ALISON AULD
The London Free Press
Saturday, September 18, 1999

HALIFAX. Natives in Atlantic Canada were jubilant yesterday after winning a landmark legal battle that could have far-reaching implications for other treaty cases in the region and recast the way the fishery is handled.

The Supreme Court of Canada upheld by a 5-2 decision a centuries-old treaty between Mi'kmaq natives and the British Crown.

The ruling stems from the 1996 case of Nova Scotia Mi'kmaq Donald Marshall Jr., who was convicted of catching and selling 210 kilograms of eels out of season and without a licence.

The ruling acquits Marshall of all charges and confirms that Mi'kmaq, Maliseet other aboriginals included in a 1760 treaty can fish and hunt without a licence and year-round.

For Marshall, who led the fight with 13 native chiefs, the case represented a final vindication of native claims that ancient treaties still entitle them to fish, hunt and gather independent of government control.

"It was clear in my mind that the more we fought it, the more powers we got, " said Marshall, who wore a black baseball cap with an emblem of an mythic native warrior.

"At times I almost gave up . . . but I've dealt with bigger problems before. "

Marshall, a soft-spoken, slight man, joked often about his notoriety in Canadian judicial history after spending 11 years in prison for a murder he didn't commit. His wrongful conviction led to an inquiry recommended sweeping changes to Nova Scotia's justice system.

Marshall said he decided to appeal his eel-fishing case to the Supreme Court for other natives and his ancestors who set out aboriginal rights in the treaties.

"I never thought I'd be in the spotlight again," he said to a mix of laughter and applause at a Halifax news conference.

"I'm trying to live a normal life and it's not funny. I don't think anything's normal around here."

He argued treaties signed between the Mi'kmaq and the British Crown in 1760-61 recognize his right to fish without a licence.

Because the decision includes hunting, fishing and "gathering," it could be applied to other legal cases involving natives charged with illegal logging, one of Marshall's lawyers said.

"I think we'd take it further and say that it takes in logs," said Bruce Wildsmith, one of two lawyers who handled the case.

"Lawyers in other cases could pull out cases like this and cite it."

One lawyer who represented a Nova Scotia fishers' group opposed to the appeal said the decision will likely lead to a series of other court cases in an attempt to define just what it applies to.

Will Moreira said it's too early to fully understand what it might mean for fishers sharing the same stocks as natives, or how new regulations will be drafted by fisheries' departments.

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{ au: Alison Auld dt: 09/18/99 sc: lfp}