The Mik’maq have struggled to obtain justice for centuries. Many court cases are ancient history but, not the Donald Marshall case. He, as a Mik’maw person, changed the lives of his people for the better. Nonetheless, this was not an easy road for Donald Marshall.
Donald Marshall was first arrested in the 1970’s and wrongly convicted for the murder of a young woman. After spending eight years in jail he was released. After his release he began to live a normal life until the 1990’s when he was arrested once again. In 1993, Donald Marshall was arrested, not for murder but for fishing eels out of season. The arrest by the DFO initiated a major change for the Mik’maq. While the DFO and non-aboriginals wanted him convicted of the “illegal” action of fishing eels out of season, Marshall did not give up the fight. Due to the treaties signed by the Crown with the Mik’maw people in the 1700’s, Marshall knew he had the right to fish.
The Government did not understand the treaties the way the Mik’maq do. The government considered the written treaty was the only basis for understanding the agreement, but the Mik’maq considered the verbal promises made at the time and recorded in their oral traditions to be an equally legitimate part of the treaty . This caused much tension between the government and the Mik’maw people.
After six years of litigation, the Supreme Court overturned two lower court convictions, and confirmed Mik’maw treaty rights. The most important aspect that came out of this trial was the recognition that the oral history of the Mik’maq should be considered equal with the written record in a court of law. The Donald Marshall case gave the Mik’maw people and all those Aboriginal peoples who have signed treaties the voice they needed in the court system to make sure their version of history was heard.
This trial brought forth many positive aspects for the Mik’maq however, there were also problems. Mik’maw fishing boats and equipment were burnt. Dealing with these losses was hard for many struggling families.
Due to the strong negative response to the Mik’maq win by DFO and non-aboriginal fishers the Supreme Court felt the need to rewrite their ruling. The court allowed DFO to limit through fishing licenses the amount reserves were allowed to catch.
The Donald Marshall trial is a case that will be in the Supreme Court history for years to come due to the lives it changed. Having the voice of the Mik’maq heard in the Supreme Court helped them get a fair hearing. This trial changed the way the courts work for years to come.
– Victoria Woodman
Aboriginal Affairs and Northern Development Canada. “R. V. Marshall.” Government of Canada. https://www.aadnc-aandc.gc.ca/eng/1100100028614/1100100028615
Bedford, David. “Emancipation as Oppression: The Marshall Decision and Self-Government.” Journal of Canadian Studies 44. No. 1(2010):206-220
Law Clerks of the Court of Appeal for Ontario. “Landmark Case:Aboriginal Treaty Rights: R. v.Marshall.” Ontario Justice Education Network. http://ojen.ca/sites/ojen.ca/files/sites/default/files/resources/Marshall%20English.pdf.
Martin, Sandra. “The Life and Death of Donald Marshall.” The Global Mail(August 6 2009). http://www.theglobeandmail.com/news/national/the-life-and-death-of-donald-marshall-jr/article4283981/?page=all .
McCallum, Margaret L. “Rights in the Courts, on the Water, and in the Woods: The Aftermath of R. v. Marshall in New Brunswick.” Journal of Canadian Studies 38, no. 3 (Fall, 2004): 204-218. Wicken, William C. Mi’kmaq Treaties on Trial: History, Land, and Donald Marshall Junior, 1955. University of Toronto Press Incorporated, 2002.