ABORIGINAL LAW CONFERENCE—2010
PAPER 5.1
Implementing Reconciliation: The Marshall Case
These materials were prepared by Brian McLaughlin, Department of Justice Canada, Vancouver, BC, for the
Continuing Legal Education Society of British Columbia, June 2010.
© Brian McLaughlin
5.1.1
IMPLEMENTING RECONCILIATION: THE MARSHALL CASE
I.
Introduction: Remembering the Marshall Decision........................................................... 1
II.
Providing Access to Commercial Fishing Opportunities Since Marshall ............................ 2
III.
Providing Capacity Since Marshall ..................................................................................... 3
IV.
The “DIAND Process”........................................................................................................ 3
V.
Canada (Attorney General) v. Arsenault, 2009 FCA 300 .................................................... 3
I.
Introduction: Remembering the Marshall Decision
It is difficult to forget the dramatic and immediate impact of the September 17, 1999 decision of the
Supreme Court of Canada in R. v. Marshall, [1999] 3 S.C.R. 456. To the surprise of most, the SCC
decided that the Mi’kmaq people had a treaty right “to provide for their own sustenance by taking the
products of their hunting, fishing and other gathering activities, and trading for what in 1760 was
termed ‘necessaries’.” In short, the Mi’kmaq had established a treaty right to fish, including an ability
to sell their catch, at least to some extent. The right was subject to regulation, and its limits in
concrete terms were unclear, but the existence of the treaty right was beyond dispute.
One is reminded of the impact of that decision by the careful, understated language of a report
prepared to evaluate the success of the reaction of the Department of Fisheries and Oceans (“DFO”) to
the Marshall decision. The report (hereinafter referred to as “the Marshall Response Report”) is
publically available on the website of DFO. 1
In the days and weeks following the Marshall Decision, there was much unrest in the
fishery. Some First Nations had taken to the water and were fishing out of season.
There was unrest among the non-native fishers who were uncertain about their
future in the commercial fishery.
Violence had erupted at some locations affected by the Marshall Decision and
confrontations were taking place between First Nations members, non-native
commercial fishers and DFO officials.
DFO had to react quickly to restore order to the situation and to put in place an
effective response to the SCC Decision …
One recalls media coverage of boats being burned and shots being fired on Miramichi Bay. Once
order was restored, however, the media lost most of its interest in the story, especially since how to
implement the Marshall decision was a complex issue, one difficult to describe in headline form.
Implementing the Marshall decision remains a work in progress. This article shall summarize what has
happened since 1999, ending with a case comment on Canada (Attorney General) v. Arsenault, 2009
FCA 300, a decision of the Federal Court of Appeal from last October that provides an example of the
kind of complex problems that continue to be generated by the Marshall decision. In what follows, the
1
“Summative Evaluation of the Marshall Response Initiative,” December 6, 2007, http://www.dfompo.gc.ca/ae-ve/evaluations/07-08/6b053-eng.htm
5.1.2
writer is constrained by the fact that there are negotiations on going between Canada and various other
actors, including First Nations. For obvious reasons the writer is limited in what can be said about the
issues under negotiation at those various tables. 2
II.
Providing Access to Commercial Fishing Opportunities since Marshall
The Marshall Response Report makes it plain that the Marshall decision “had not been anticipated.”
There was no plan in place to implement the decision. 3 The decision of the Supreme Court of Canada
did not provide for an implementation period (i.e., a period during which effect of the decision (beyond
the acquittal of Mr. Marshall) was suspended). The decision on its face had immediate effect. It was
interpreted by many as giving First Nations an immediate and unrestricted right to fish.
This led to the extraordinary rendering of further reasons for judgment by the SCC, in R. v. Marshall,
[1999] 3 S.C.R. 533, 2 months later. In dismissing the application by an organization of non-Aboriginal
fishermen, the West Nova Fishermen’s Coalition, for a rehearing of the matter, the SCC observed as
follows in para. 2:
Those opposing the motion object in different ways that the Coalition’s motion rests
on a series of misconceptions about what the September 17, 1999 majority judgment
decided and what it did not decide. These objections are well founded. The Court did
not hold that the Mi’kmaq treaty right cannot be regulated or that the Mi’kmaq are
guaranteed an open season in the fisheries.
In short, somewhere between an open season and no right to fish at all, the Mi’kmaq had a treaty right
to fish. Where exactly on the spectrum that was remained to be worked out.
The short term response of DFO was a one year “Initial Marshall Response Initiative” which came into
effect on January 25, 2000. The amount of $159.6 million was earmarked for this initiative. Because the
commercial fisheries on the east coast were already fully subscribed, and could not be expanded without
endangering conservation, the primary means of providing for increased participation in commercial
fisheries by the 34 First Nations potentially affected by the decision without increasing pressure on the
resource was through the voluntary retirement of commercial licences and issuance of equivalent
communal licences to the First Nations. This was on the whole successful in the short term, although as
we shall see below problems developed with the passage of time.
Under the Initial Marshall Response Initiative, Interim Fisheries Agreements were negotiated with most
but not all of the First Nations affected by the Marshall decision to provide access to the commercial
fishery. In 2001, a longer term Marshall Response Initiative was funded to the tune of $430.2 million to
negotiate Fisheries Agreements until March 31, 2004. This initiative was subsequently extended to
March 31, 2007, though without further funding. Since then, access arrangements have generally been
set out in annual letter agreements.
Because there were 34 First Nations involved, it would be impossible in an article of this length to go
into the details of all of those negotiations. Not surprisingly, some negotiations produced agreements,
and some did not. The situation is summarized in the Marshall Response Report in the following terms:
By March 2004, DFO had entered into Fisheries Agreement with 31 of the 34 First
Nations eligible under the MRI. In 2005, DFO entered into a contribution agreement
with an additional First Nation. DFO was unable to reach agreement with the
2
The writer is General Counsel with the Department of Justice of the Government of Canada in the
Regional Office in Vancouver, BC. The views expressed in this article are those of the writer, and do not
necessarily reflect the views of the Minister of Justice and the Government of Canada.
3
“Summative Evaluation of the Marshall Response Initiative,” supra, section 3.3.
5.1.3
remaining two First Nations primarily because these First Nations did not wish to
enter into arrangements that, they believed, may infringe on their treaty rights.
III. Providing Capacity since Marshall
In addition to negotiating agreements that provided access to the fishery, DFO has put in place over
the years various programs designed to improve the practical, on the water capacity of First Nations to
participate in commercial fishing. For example, included as part of the Marshall Response Initiative
within the Fisheries Agreements described above was $21 million for training purposes. 4 In 2007, a
$20 million Atlantic Integrated Commercial Fisheries Initiative was established to increase First
Nations capacity. 5
IV. The “DIAND Process”
In addition to the agreements which have been and continue to be negotiated between First Nations and
DFO providing First Nations with access to commercial fishing opportunities, and the capacity
programs described above, there is in place a more comprehensive negotiation process on the east coast
which is often referred to colloquially as the “DIAND process.” (DIAND is the acronym for the
Department of Indian Affairs and Northern Development.) DIAND has the departmental lead in a
series of negotiations between Canada, the four provinces of Quebec, New Brunswick, Nova Scotia and
Prince Edward Island, and the 34 Mi’kmaq and Maliseet First Nations in those provinces. These are
negotiations which are aimed at producing comprehensive agreements relating to Aboriginal and treaty
rights and title, including self government. It is salutary for practitioners in BC to be reminded that BC
is not the only place in Canada where negotiations for comprehensive agreements are taking place.
In Nova Scotia, a Framework Agreement 6 was entered into on February 23, 2007, under which the
Mi’kmaq of Nova Scotia, the provincial government and Canada are negotiating towards an Agreement
in Principle on issues related to wildlife, lands, governance and fish. Terms of reference on a
consultation process have been negotiated and are being implemented on a trial basis. In Prince Edward
Island, a Partnership Agreement 7 has been entered into between the Mi’kmaq of PEI, the provincial
government and Canada establishing a tripartite process to address various issues, including economic
development. In Quebec, the Mi’gmaq of Quebec, the Province of Quebec and Canada have signed the
Niganita’suatas’gl Ilsutaqann Agreement, 8 under which discussions are underway with respect to selfgovernment and consultation. In New Brunswick, exploratory discussions have taken place.
V.
Canada (Attorney General) v. Arsenault, 2009 FCA 300
With the foregoing context is mind, it is instructive to look at how the issues generated by Marshall
continue to land in the courts. As we noted above, in order to provide access to commercial fishing
opportunities to First Nations without increasing pressure on the resource, equivalent access was reallocated from (non-aboriginal) commercial fishers. The preferred method was through voluntary
retirement of commercial licences from non-Aboriginal licence holders. By March of 2006, it had
become clear that the voluntary retirement of licenses to harvest snow crab was not going to provide
4
“Summative Evaluation of the Marshall Response Initiative,” supra, section 3.2.3.
5
http://www.dfo-mpo.gc.ca/fm-gp/aboriginal-autochtones/marshall/aicfi-ipcia-eng.htm
6
http://www.ainc-inac.gc.ca/al/ldc/ccl/agr/nsf/nsfa-eng.asp
7
http://www.ainc-inac.gc.ca/al/ldc/ccl/fagr/mkmq/mkmq-eng.asp
8
http://www.ainc-inac.gc.ca/al/ldc/ccl/fagr/que/umb/umb-eng.asp
5.1.4
First Nations to what they negotiated under the applicable Fisheries Agreement as part of the Marshall
Response Initiative, namely, 15.8% of the Total Allowable Catch (“TAC”). Accordingly, the Minister of
Fisheries decided that it would be necessary to reduce the percentage of the TAC allocated to nonAboriginal fishers. In compensation, the Minister decided that non-Aboriginal crabbers would receive a
total of $37.4 million.
Stopping there, it is to be noted that the Arsenault decision demonstrates a recurring issue that is faced
by governments in dealing with Aboriginal and treaty rights cases. When resources are scarce,
allocating a resource to Aboriginal users will often mean re-allocating it from non-Aboriginal users.
Under the best of circumstances, the non-Aboriginal users are unlikely to be happy. Where the
amount of the resource to be allocated to Aboriginal users at the expense of non-Aboriginal users is
not clearly required by the lawwhich is the case where the precise scope of the Aboriginal or treaty
right is a matter of negotiation about which reasonable people can disagreethis is particularly
problematic. This is the sort of difficult arithmetic that lies behind seeking reconciliation between
Aboriginal and non-Aboriginal peoples and their respective rights and interests.
Returning to Arsenault, the mechanism by which the Minister’s decision was implemented was that a
form of agreement was sent to the non-Aboriginal crabbers, which they were to sign in return for
receiving the $37.4 million compensation. They refused to do so, because the agreement included a
release of any claims they might have against Canada related to or arising from the agreement. The
crabbers sought mandamus, compelling the Minister to pay them the $37.4 million without
conditions.
The Federal Court (trial level) decided in favour of the crabbers, holding that once the Minister had
decided in a Management Plan to pay compensation of $37.4 million, he was not entitled to add a
string to it (i.e., that the recipients sign a release). The Federal Court of Appeal reversed, holding that
the Management Plan was not a binding legal document and created no legally binding obligation
enforceable by the crabbers. The Minister was entitled to require a release in return for the payment
of the $37.4 million compensation.
Although the crabbers were unsuccessful, the Arsenault case demonstrates that in implementing cases
like Marshall, the Crown runs the risk of alienating non-Aboriginal Canadians. This will sometimes
lead to litigation. Where the Crown is taking reasonable steps to address court decisions affirming the
rights protected by s. 35 of the Constitution Act, 1982, it is likely, in the writer’s view, that the courts
will show considerable deference to the Crown’s decisions.
I hasten to note that the Federal Court of Appeal decision was based on administrative law principles
surrounding what was required for the issuance of a writ of mandamus, not on an explicit
consideration of whether the Minister had correctly balanced Aboriginal rights and interests against
those of non-Aboriginal Canadians. The result, however, was that the Minister was left free to make
the decision of how and whether to compensate non-Aboriginal users of a resource for the reallocation of that resource to First Nations as part of the Crown's response to the Marshall decision.
Winning in court is not everything, of course. The hard part is in finding solutions that will lead to
the reconciliation of Aboriginal and non-Aboriginal Canadians outside the courtroom.