This case was heard in the Nova Scotia Supreme Court.
Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of Aboriginal peoples in Canada. In R v Marshall, 1999 CanLII 665 (SCC) and R v Marshall, 1999 CanLII 666 (SCC), the Supreme Court of Canada decided that treaties entered into by the Mi’kmaq and the Crown (known collectively as the Mi’kmaq Treaties of 1760-61) gave the Mi’kmaq the right to fish commercially for a moderate livelihood and that legislation that limited this practice violated the Mi’kmaq’s constitutionally protected treaty rights. The issue in the current case was whether the Crown had a positive obligation to amend the existing fisheries legislation, specifically the federal Fisheries Act, so that it recognized that the Mi’kmaq had a treaty right to fish commercially for a moderate livelihood.
Twelve Indigenous communities, represented by their Band Councils, argued that the Crown’s failure to fulfill this positive obligation infringed the Mi’kmaq’s recognized treaty right to a moderate livelihood fishery. They argued that the Crown’s positive obligation came from the promises it had made to the Mi’kmaq in a series of treaties that the Crown and the Mi’kmaq entered into between 1760 and 1761 (known collectively as the “Mi’kmaq Treaties of 1760-61”). They argued that the Crown had failed to take any steps to fulfill its obligation. Although the Marshall decisions recognized the right to fish for a moderate livelihood, the fisheries regime had not been amended to recognize or accommodate these rights. Also, the Minister of Fisheries and Oceans had not been provided with any criteria to govern how to distribute Mi’kmaq livelihood fishery licences.
Alternatively, the communities asked that if no positive duty was found to exist, that they be given leave to amend their pleadings (permission to change what they argued).
In response, the Crown argued that the existing legislation predated the Marshall decisions and already accommodated the Mi’kmaq treaty right to fish commercially for a moderate livelihood. The Crown also argued that the communities could not prove that the Crown had a positive obligation that must be enforced.
The Court agreed with the Crown. The Court decided the arguments the communities had submitted lacked factual support and relied on incorrect legal principles. It granted the communities leave to amend their pleadings.