This case was heard in the Nova Scotia Court of Appeal.
Donald Marshall Jr. was convicted of offences under the federal Fisheries Act, the Maritime Provinces Fishery Regulations, and the Fishery (General) Regulations after catching and selling eels without a license, with a prohibited net, and at a time he was not allowed to fish for eels. Mr. Marshall argued that he had a treaty right to fish that exempted him from these regulations. He argued that this right came from a series of treaties made between the Mi’kmaq and the Crown (known collectively as the Mi'kmaq Treaties of 1760-61). At trial level, he was found guilty on all charges. The court found that Mr. Marshall failed to prove that the treaties gave him the right to catch and sell fish.
In this case, the Court of Appeal upheld the trial court’s decision. The Court found that the trial judge did not err in finding that the treaties did not create or protect the right to catch and sell fish without having to obey the current regulations. The Mi’kmaq Treaties of 1760-61 contained a “truckhouse clause” which specified that the Mi’kmaq had the right to trade within a truckhouse (a special building set up for Indigenous people to trade with representatives the Crown). The treaties do not refer to trading in any other setting. The Court decided that this meant the treaties did not give Mr. Marshall the right to trade anywhere other than in a truckhouse, and that since there were no longer truckhouses, he did not have a right to sell fish.
The appeal was dismissed and the conviction upheld.
This matter was heard again in R v Marshall, 1999 CanLII 666 (SCC) and R v Marshall, 1999 CanLII 665 (SCC).