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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

Country/Territory
Canada
Type of court
National - higher court
Date
Nov 17, 1999
Source
UNEP, InforMEA
Court name
Supreme Court of Canada
Judge
Lamer C., J.
LHeureux-Dubé
Gonthier
McLachlin
Iacobucci
Binnie
Reference number
3 S.C.R. 533
Language
English
Subject
Fisheries
Keyword
Fishing permit Indigenous peoples Fishing authorization
Abstract
This case related to fishing eel out of season contrary to federal fishery regulations. The accused, a Mi’kmaq Indian, was acquitted of the charges. The Court concluded that Marshall had established the existence and infringement of a local Mi’kmaq treaty right to carry on small scale commercial eel fishery. These treaty rights exempted him from compliance with the violated regulations. The Crown had not attempted to justify either the licensing restriction or the closed season to limit the exercise of the appellant’s treaty right. An intervener in the appeal of the case, the West Nova Fishermen’s Coalition, applied for a rehearing of the appeal and, if granted, for a stay of the judgment pending the rehearing. The Coalition also sought a further trial limited to the issue whether the application of the fisheries regulations to the exercise of the Mi’kmaq Indian treaty right could be justified on conservation or other grounds. The parties and other interveners opposed the rehearing and any further trial. The Supreme Court held that the motion for a rehearing and stay of the judgment should be dismissed. In light of the extended definition of “party” in Rule 1 of the Supreme Court Rules, the Court had jurisdiction to entertain an intervener’s application for a rehearing but would only do so in exceptional circumstances. Not only were there no such circumstances here but the intervener’s application also violated the basis on which an intervener was permitted to participate in the appeal in the first place, namely acceptance of the record as defined by the Crown and the defense. In so far as the Coalition’s questions were capable of being answered on the trial record in this case, the responses were already evident in the majority judgment and the prior decisions of the Court referred to therein. The Court was of the view that the inferior court elected not to try to justify the licensing or closed season restriction on the eel fishery in this prosecution, but the resulting acquittal could be generalized to a declaration that licensing restrictions or closed seasons could never be imposed as part of the government’s regulation of the Mi’kmaq limited commercial “right to fish”. The factual context for justification was of great importance and the strength of the justification could vary depending on the resource, species, community and time. The federal and provincial governments had the authority within their respective legislative fields to regulate the exercise of a treaty right where justified on conservation or other grounds. The paramount regulatory objective was conservation and responsibility for it was placed squarely on the minister responsible and not on the aboriginal or non aboriginal users of the resource. The regulatory authority extended to other compelling and substantial public objectives which could include economic and regional fairness, and recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups. Aboriginal people were entitled to be consulted about limitations on the exercise of treaty and aboriginal rights. The Minister had available for regulatory purposes the full range of resource management tools and techniques, provided their use to limit the exercise of a treaty right could be justified on conservation or other grounds.
Full text
1999scc63.html

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