And now:Ish <[EMAIL PROTECTED]> writes: >X-Sender: [EMAIL PROTECTED] >X-Mailer: Windows Eudora Pro Version 3.0.1 (32) >Date: Fri, 17 Sep 1999 07:59:36 -0700 >To: [EMAIL PROTECTED] >From: Tehaliwaskenhas-Bob Kennedy <[EMAIL PROTECTED]> >Subject: Big Court Victory for Natives >Mime-Version: 1.0 >Content-Type: text/plain; charset="iso-8859-1" > >September 17, 1999 > >As reported by Turtle island Native Network >http://www.turtleisland.org > > >A big Native Rights Victory today in the Supreme Court of Canada for Donald >Marshall, a Mi'kmaq Indian. > >He was charged with three offences set out in the federal fishery >regulations- the selling of eels without a licence, fishing without a >licence and fishing during the close season with illegal nets. He admitted >that he had caught and sold 463 pounds of eels without a licence and with a >prohibited net within close times. The only issue at trial was whether he >possessed a treaty right to catch and sell fish under the treaties of >1760-61 that exempted him from compliance with the regulations. Marshall >appealed and today the Supreme Court ruled the appeal should be allowed and >an acquittal entered on all charges. >--------------- > > >R. v. Marshall > > > >Donald John Marshall, Jr. Appellant > >v. > >Her Majesty The Queen Respondent > >and > >The Attorney General for New Brunswick, >the West Nova Fishermen's Coalition, >the Native Council of Nova Scotia >and the Union of New Brunswick Indians Interveners > >Indexed as: R. v. Marshall > >File No.: 26014. > >1998: November 5; 1999: September 17. > >Present: Lamer C.J. and L'Heureux-Dubé, Gonthier, Cory, McLachlin, >Iacobucci and Binnie JJ. > >ON APPEAL FROM THE COURT OF APPEAL FOR NOVA SCOTIA > > Indians -- Treaty rights -- Fishing rights -- Accused, a Mi'kmaq >Indian, fishing with prohibited net during close >period and selling fish caught without a licence in violation of federal >fishery regulations -- Whether accused >possessed treaty right to catch and sell fish that exempted him from >compliance with regulations -- Mi'kmaq Treaties >of 1760-61 -- Maritime Provinces Fishery Regulations, SOR/93-55, ss. >4(1)(a), 20 -- Fishery (General) Regulations, >SOR/92-53, s. 35(2). > > The accused, a Mi'kmaq Indian, was charged with three offences set out >in the federal fishery regulations: the selling of eels >without a licence, fishing without a licence and fishing during the close >season with illegal nets. He admitted that he had caught >and sold 463 pounds of eels without a licence and with a prohibited net >within close times. The only issue at trial was whether >he possessed a treaty right to catch and sell fish under the treaties of >1760-61 that exempted him from compliance with the >regulations. During the negotiations leading to the treaties of 1760-61, >the aboriginal leaders asked for truckhouses "for the >furnishing them with necessaries in exchange for their peltry" in response >to the Governor's inquiry "whether they were directed >by their Tribes to propose any other particulars to be treated upon at this >time". The written document, however, contained >only the promise by the Mi'kmaq not to "traffick, barter or exchange any >commodities in any manner but with such persons or >the managers of such truck houses as shall be appointed or established by >His Majesty's Governor". While this "trade clause" >is framed in negative terms as a restraint on the ability of the Mi'kmaq to >trade with non-government individuals, the trial judge >found that it reflected a grant to them of the positive right to bring the >products of their hunting, fishing and gathering to a >truckhouse to trade. He also found that when the exclusive trade obligation >and the system of truckhouses and licensed traders >fell into disuse, the "right to bring" disappeared. The accused was >convicted on all three counts. The Court of Appeal upheld >the convictions. It concluded that the trade clause does not grant the >Mi'kmaq any rights, but represented a mechanism >imposed upon them to help ensure that the peace between the Mi'kmaq and the >British was a lasting one, by obviating the >need of the Mi'kmaq to trade with the enemies of the British or >unscrupulous traders. > > Held (Gonthier and McLachlin JJ. dissenting): The appeal should be >allowed and an acquittal entered on all charges. > > Per Lamer C.J. and L'Heureux-Dubé, Cory, Iacobucci and Binnie JJ.: >When interpreting the treaties the Court of Appeal >erred in rejecting the use of extrinsic evidence in the absence of >ambiguity. Firstly, even in a modern commercial context, >extrinsic evidence is available to show that a written document does not >include all of the terms of an agreement. Secondly, >extrinsic evidence of the historical and cultural context of a treaty may >be received even if the treaty document purports to >contain all of the terms and even absent any ambiguity on the face of the >treaty. Thirdly, where a treaty was concluded orally >and afterwards written up by representatives of the Crown, it would be >unconscionable for the Crown to ignore the oral terms >while relying on the written ones. <<end excerpt (Complete court text was sent if anyone would like it..too large to send through the list serve)
