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L. Jane McMillan is the former Canada Research Chair for Indigenous Peoples and Sustainable Communities and chair of the Department of Anthropology at St. Francis Xavier University in Antigonish, Nova Scotia. A former eel fisher and one of the original defendants in the Supreme Court of Canada’s Marshall decision (1999), she has worked with Mi’kmaw communities for over twenty years, conducting ethnographic research, developing policy, and advocating for Indigenous and treaty rights and for community-based justice.
Publisher: UBC Press
Page Count: 220
Publication Date: November 1, 2018
Truth and Conviction: Donald Marshall Jr. and the Mi’kmaw Quest for Justice is an ethnography of the Canadian legal system with respect to Indigenous rights and criminal justice. It is written from the critical lens of legal anthropology and is a reflection on the unparalleled life and legacy of Donald Marshall Jr., a Mi’kmaw from Membertou, Nova Scotia. Marshall’s story is significant for many reasons: he was the first person to be recognized as being wrongfully conviction in Canada; his case precipitated the first royal commission into the causes of wrongful conviction; and, he was the first person to be compensated for damages sustained as a result of a wrongful conviction. The inquiry pointed to systemic racism throughout the Canadian justice system and brought to light the unjust treatment of Indigenous peoples before the law. In the thirty years since their release in 1989, the implementation of the recommendations of the Marshall inquiry have transformed the administration of criminal justice in Canada and set the foundation for the reinvigoration of Indigenous legal principles. In recovering from 11 years in prison for a murder he did not commit, Donald sought solace in the exercise of his Peace and Friendship treaty rights to fish unmolested. This excerpt chronicles Donald’s journey to defend Mi’kmaw treaty rights in the Supreme Court of Canada and sets the stage for understanding the impacts of R. v. Marshall on its 20th anniversary and for mapping productive pathways toward substantive Indigenous rights reconciliation and the rise of Indigenous justice in Mi’kma’ki.
– L. Jane McMillan
Excerpt: from Chapter 7: Najiwsgeieg | We Go Fishing in Search of a Livelihood
Aside from justice work work, Donald loved to fish. He enjoyed the privacy of wandering down the river with his fly rod or on the ice with a jig. It was where he found peace and joy. Taught to fish as a boy, he told fishing stories throughout his life. Down Skye River, Donald skillfully hand-jigged a salmon, dropping it at my feet with a sly smile. I was mesmerized. We feasted. Having had success as an avid food harvester, Donald wanted to secure an income through an activity he enjoyed, one that allowed him to celebrate his Mi’kmaw identity through a respectful relationship with a culturally significant resource. He wanted to work. He sought the wilderness and the exhilaration that small-scale fishing offered him, far away from the spotlight under which he had lived since his wrongful conviction for murder.
We became eel fishers.
Mi’kmaw eeling is labour-intensive. During our first season, the Bernard brothers from We’koqma’q – Lunch, Chuckie, and Seven – and Uncle Ekkian (Donald’s mother’s brother) lent us fyke nets and taught us the ropes in Malagawatch.
By the next season, we had earned enough to buy our own. We hauled nets (cone-shaped netting bags mounted on rings with leaders to guide the fish towards the entrance) by hand, and they were heavy when wet and awkward to set, even in the calmest weather. We fixed the nets in the mud with poles that had been cut and trimmed from the local woods with the help of fishing buddies Albert Doucette and Gordon Julian. It was hard and dirty work, but we liked the adventure. Every time there was a thunderstorm, Donald rubbed his hands together and said, “Lots of eels tomorrow, baby!” he was right.
Initially, we liked the trials of catching eels. Fishing reinvigorated and helped reintegrate Donald. We were part of a communal occupation that gave meaning to our lives, an activity grounded in Mi’kmaw customary practices and the laws of harvesting, an activity in adherence to an ethos of sharing. Eels are a favoured food of Mi’kmaw elders. We distributed the biggest and best eels among the old people, and they always asked us for a feed wherever we were, no matter if it were at a funeral, a wedding, or grocery shopping. Many admired Donald’s eel-cleaning skills. When powwows or Treaty Day celebrations required eels for the traditional katawapul (eel stew), Donald went out of his way to ensure there was enough, spending hours bent over the sink, wrestling the eels into submission to prepare them for consumption. Eels still wiggle after they are gutted.
Eel fishing is not a prestigious or particularly lucrative fishery. Eels are slimy, and the muddy areas where they are fished typically have a pungent, lingering odour. Like any resource extraction process, fishing is dangerous, and the risk of personal injury is high. Donald was not a strong swimmer, which compounded the danger. The financial risks were also high – the catch was determined by uncontrollable factors such as the weather, uncertain reproduction patterns, and gear malfunctions.
We fished in Cape Breton for another season then moved our nets and boat down to Paq’tnkek Mi’kmaw territory (Pomquet Harbour) on the mainland. We had heard that the eels were big there and running well. We spent several nights a week with Donald’s cousin Billy Googoo and his family. They helped us navigate the new waters. Kinship matters.
On a bright August day in 1993 a boat approached us while we were checking our nets. It was unusual to see others fishing in the area. As the boat came closer, we could see it contained Department of Fisheries and Oceans officers, uniformed and armed. The officers pulled alongside our boat and examined its contents. They asked us if there was anything else onboard besides eels. We told them that all bycatch had been released. An officer then asked to see our fishing licences. Donald said he was Mi’kmaw and did not need a licence to fish.
“Everyone needs a licence to fish,” the officer replied.
“I don’t need a license. I have the 1752 treaty,” Donald responded.
They asked for our names and address and took a net as “evidence.” We thought it was a misunderstanding because we were new to the area. We felt safe because we were in Mi’kmaw territory, and Donald was protected by his treaty rights, affirmed and recognized by the Supreme Court of Canada in 1985 in Simon v The Queen and section 35 of the Constitution Act, 1982. James Matthew Simon had been convicted of possession of a rifle and ammunition but successfully argued that he had a right to hunt as set out in the 1752 Peace and Friendship Treaty. From the Mi’kmaw perspective, the Simon decision meant the 1752 treaty was in full force and effect.
We headed back to the reserve and told people what happened. We called the Department of Fisheries and Oceans and asked what was going on. We wanted the $250 net back. They told us we needed permission from the chief to fish in that area. We asked Chief Kerry Prosper, and he said we could continue fishing. We let the department know we had his consent and continued to fish. A few days later, we sold the eels and reset the nets. When we went back to fish two days later, we were outraged to find our nets and boat gone. At no time did it occur to us that eel fishing was licensed or that we did not have a right to sell the eels we caught. At the trial that followed, the statement of facts read:
On August 24, 1993, at around 10 o’clock in the morning, Donald Marshall and Leslie Jane McMillan fished for eels by means of fyke nets, a type of fixed net, from a small outboard motor boat in Pomquet Harbour, County of Antigonish, Nova Scotia. For part of the morning Marshall pulled the nets and emptied the eels into the boat while McMillan operated the outboard motor, and for part of the morning McMillan pulled the nets and emptied the eels into the boat while Marshall ran the outboard motor. Marshall and McMillan transferred the eels from the boat to a holding pen … Marshall helped weigh and load his eels onto a truck belonging to South Shore Trading Company, New Brunswick. South Shore is engaged in the purchase and sale of fish. Marshall sold 463 pounds of his eels to South Shore at $1.70 per pound. Marshall did not at any time hold a license within the meaning of S. 4(1)(a) of the Maritime Provinces Fishery regulations and S. 35(2) of the Fishery Act with respect to fishing for or selling eels from Pomquet Harbour.
The eel fishing case, which began in Nova Scotia Provincial Court on October 17, 1994, was public, expensive, and lengthy. The trial was set out as a test case for Mi’kmaw treaty rights, and the chiefs were happy it was Donald who had been charged. The case was sure to get lots of media exposure. The Union of Nova Scotia Indians and the Confederacy of Mainland Mi’kmaq agreed to support our defence and provided us with counsel, something we could never have afforded otherwise. Mi’kmaq resented the government’s failure to respect their peoples’ economic needs and treaty rights, particularly in the context of the cod-fishing crisis. Following the Supreme Court of Canada’s Sparrow decision, in 1990, which confirmed that indigenous peoples have the right to fish for subsistence and ceremonial purposes and that that right superseded all other fisheries, the federal government had implemented the aboriginal Fisheries Strategy. The strategy was directed at regulating any existing aboriginal or treaty commercial-fishing rights. Without sufficient consultation regarding indigenous preferences for participation in commercial fisheries or justifying infringements, the department of Fisheries and oceans had instituted a communal fishing-licence program, but Membertou, Donald’s home community, and Paq’tnkek, where we were caught fishing, had refused to take part because they did not want to accept any federal jurisdiction limiting the exercise of their treaty rights.
To resist these top-down and culturally unresponsive initiatives, the Union of Nova Scotia Indians and the Confederacy of Mainland Mi’kmaq joined forces in the Aboriginal Title Project. Together, they compiled historical documentation to aid in legal defence work for the protection and implementation of Mi’kmaw treaties and title. They were ready for the fight.
As a non-indigenous person, I did not enjoy the protection of 35(1), and it was the Crown’s position that any treaty rights that may be enjoyed by the other defendants were not transferable to me by virtue of my relationship with Donald. I was not immune from prosecution, but early in the process, charges against me were dropped. Judge Embree, who heard the case in Antigonish Provincial Court, understood it to be an aboriginal treaty rights test case. In court, the Crown vigorously pursued the charges against Donald, and he was defended with great acuity and perseverance by lead counsels Bruce Wildsmith and Eric Zscheile, with the help of the research team put together by the Mi’kmaw nation. Many of the legal researchers were new Mi’kmaw lawyers and law students who had benefitted from the Indigenous Blacks and Mi’kmaq initiative at Dalhousie University, a recommendation of the Marshall Inquiry to improve access to education and expand diversity in the law school, bar, and bench.
Because Donald had admitted to catching and selling eels without a licence and with prohibited nets during a closed time, the only issue at trial was whether he possessed a treaty right to catch and sell fish that exempted him from compliance with the regulations. Conservation was not an issue. The trial lasted more than forty days over an eighteen-month period. Volumes of documents were presented and interpreted by anthropological and historical experts on both sides. The testimony of historians William Wicken and John Reid, for the defence, and Stephen Patterson, for the Crown, took thirty-four days and filled more than four thousand pages of transcripts. Media attention and the stress of the case weighed heavily on Donald, who felt an acute sense of personal responsibility for the trial’s outcome.
Instead of arguing Donald’s right to catch and sell fish under the 1752 treaty, the defence looked to the Peace and Friendship Treaties of 1760–61 for evidence that the Mi’kmaq had the right to catch and sell fish. The Mi’kmaq had signed five treaty agreements with the British Crown between 1725 and 1779. The British recognized that the Mi’kmaq had a sophisticated and comprehensive governance structure and processes for managing nation-to-nation agreements. The 1725 agreement was a peace and friendship treaty designed to end years of conflict between the British and the Mi’kmaq and their allies to conclude the Indian wars taking place in the northeast. The British planned to use the treaty to incorporate the Mi’kmaq into the colonial network and assist in their battle against the French. As the Mi’kmaq understood it, the treaty protected their customary livelihoods, their resources, and their sovereign and sacred relationships within their territories. However, although the treaty-making process embodied both cultures, the embodiment was unequal because the writing of the treaty was in English and did not encompass Mi’kmaw understandings of the events or the agreements within the text.
The British promised that their settlements would be lawfully made and that they would not interfere in Mi’kmaw planting, hunting, and fishing grounds. When Edward Cornwallis, the newly appointed governor of Nova Scotia, arrived in 1749 with a flotilla of British ships and 2,547 passengers, however, the promise was not kept. Mi’kmaw families who had lived along Chebucto Bay for centuries were not consulted when the town of Halifax was built. When Mi’kmaq resisted and asserted their sovereignty, a proclamation offered rewards for Mi’kmaw scalps or prisoners. In an attempt to encourage the Mi’kmaq and other tribes in the Atlantic region to live peaceably with the British, the 1725 treaty was renewed in 1749 and 1752 and ratified again in Halifax in 1760 and 1761. The 1760 treaty protected the Mi’kmaq’s right to trade the products of their hunting, fishing, and gathering for “necessaries.”
Upon hearing the evidence regarding the treaties, the court convicted Donald Marshall on all charges in June 1996. He was given an absolute discharge, and the conviction went to appeal. The Nova Scotia Court of Appeal’s decision was even more devastating to the Mi’kmaq because it denied the validity of the 1760–61 treaties. Defence counsel argued that if the Mi’kmaw treaties are read as a chain of treaties, then the trade clause constituted a treaty-protected right to commercial activity. The Crown countered that the treaties did not grant any commercial fishing rights to the Mi’kmaq. Conviction upheld, Donald was granted leave to appeal to the Supreme Court of Canada.
At no time in the court proceedings was Donald given an opportunity to express how it was that he came to be a harvester, how he understood his ability to fish as an inherent right and as an integral part of his Mi’kmaw identity. He did not get a chance to describe how he practised the Mi’kmaw legal principles of responsible harvesting and sharing, which had been passed down for generations. Instead, the trial process narrowed the discourse to the written treaty and events in a selected period of time. The defence was precluded from offering the court a sense of Mi’kmaw history and legal traditions prior to the coming of Europeans. In short, the court authorized a particular, non-Mi’kmaw version of history. The treaty process – meant to protect and guarantee Mi’kmaw liberties and access to resources – has been reevaluated in terms that served the settler society while denying Mi’kmaw sovereignty. Treaty rights, from the Crown’s perspective, were to be won or, preferably, lost. The case was not about honouring relationships; it was about adversaries duelling over legitimacy.
The Supreme Court of Canada heard the case and on September 17, 1999, decided in favour of Donald Marshall (five judges in favour, two dissenting). Justice Binnie, writing for the majority, stated:
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.
The accused’s treaty rights are limited to securing “necessaries” (which should be construed in the modern context as equivalent to a moderate livelihood), and do not extend to the open-ended accumulation of wealth. Thus construed, however, they are treaty rights within the meaning of s.35 of the Constitution Act, 1982 … What is contemplated is not a right to trade generally for economic gain, but rather a right to trade for necessaries. The treaty right is a regulated right and can be contained by regulation within its proper limits. Catch limits that could reasonably be expected to produce a moderate livelihood for individual Mi’kmaw families at present-day standards can be established by regulation and enforced without violating the treaty right. The accused caught and sold the eels to support himself and his wife. His treaty right to fish and trade for sustenance was exercisable only at the discretion of the Minister. Accordingly, the closed season and the imposition of the discretionary licensing system would, if enforced, interfere with the accused’s treaty right to fish for trading purposes, and the ban on sales would, if enforced, infringe his right to trade for sustenance. In the absence of any justification of the regulatory prohibitions, the accused is entitled to an acquittal.
The decision reverberated across the country, inspiring indigenous communities to unite in collective action to secure their rights to resources. The federal government, the Department of Fisheries and Oceans, and non-aboriginal fishers were not prepared for the decision.
The judgment led to immediate conflict and controversy in the Maritimes, grabbing international headlines and marring the Mi’kmaq’s legal victory. Non-indigenous fishers resisted the Supreme Court’s findings on the grounds that they believed they held traditional rights to the waters and were unwilling to share the strained – but lucrative – resources with anyone, especially “Indians.” Although Donald was an eel fisher, the Mi’kmaq interpreted the decision to mean that they had access to all ocean resources. The case marked an unprecedented turn in colonial relations: it opened a window to remedy patterns of dependency and subjugation in favour of sustainable community advancement, a return to the principles of netukulimk (responsible harvesting) through the affirmation of traditional knowledge and treaty and Indigenous rights. It marked a resurgence of practices that respect the sacred interconnectedness with the spirits in all life forms. The values of netukulimk are the centrepiece of the Unama’ki Institute of Natural Resources, which opened in 1999, and frame the harvesting guidelines of the Mi’kmaw nation.
The eel disappeared from the headlines as the controversy shifted to lobster and who had access to this profitable fishery.