Implications of the Marshall Decisions on Aboriginal Rights and Indigenous Sovereignty

Read and analyze the Marshall decisions (Calloway, 288-291). Which passage or phrase holds the most significance for Indigenous sovereignty, and why?

The decision by Justice Donald Marshall of the Supreme Court of Canada on the morning of September 17, 1999 is arguably one the most insightful with regard to aboriginal rights and indigenous sovereignty. Popularly referred to as the “Marshall decisions”, the ruling re-affirmed the legal and cultural rights of the Maliseet First Nations and Mi’kmaq of Canada to fish and hunt game for sustenance devoid of federal regulation. The phrase that holds the most significance in this pioneering precedent was the native people’s pursuit of what is referred to as “moderate livelihood” (Calloway). It affirmed the claims initially made by indigenous communities from Nova Scotia, New Brunswick and Gaspe, in addition to acknowledging their rights to lead lifestyle with the context of a contemporary society.

            The Marshall decision represents one of the first legal models in North America to uphold the right of first nations to practice their way of life without interference by the federal government. In his decision, Donald Marshall recognized the legitimacy of the 1960 and 1961 agreement made between the 34 Mi’kmaq tribes, their contemporaries, and the British in the Peace and Friendship Treaties (Calloway). The catching and selling of eels by First Nations people was, therefore, deemed legitimate and part of their pursuit of the so-called “moderate livelihood”. The governing bodies were, thus, subsequently ordered to cease the implementation of fishing regulations on the Mi’kmaq community and associated licensure requirements since they violated the original agreement with Britain.

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            One of the most profound implications of the Marshall decisions was the extension of treaty rights for First Nations people in Canada.  Indigenous people, particularly those residing in forested areas around New Brunswick and Québec, were free to hunt game and fish as they pleased; albeit for sustenance alone. However, they were still subject to regulation in the event concerns were raised regarding overexploitation of the environment, hence the need for conservation oversight (Calloway). The First Nations in this region were, for the first time, granted insusceptibility to fish as they pleased which further reinforced their claim as the original residents of the region and the significance of a return to their original way of life. The lifting of closed season restrictions on First Nations people also meant that they could fish all year round and, therefore, an important source of livelihood for a marginalized community.

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The court’s decision to uphold the initial decision to grant unrestricted fishing and hunting rights to First Nations, in the wake of mounting criticism from non-indigenous Canadians and the West Nova Fishermen’s Association, further cemented their position in society. As a vulnerable minority group, the First Nation Indians were privy to incidences of downright discrimination and were frequently unable to practice their tribal way of life. Some were regularly intimidated to abandon their ways for a more “modern” approach. Yet, the court’s decision to pardon the First Nation appellant for catching an estimated 463 pounds of fresh eel reinforced the position of the Mi’kmaq community in Canadian society (Calloway). Furthermore, their continued access to wildlife and fish from the surrounding water bodies was more matter of necessity rather than mere commercial exploits. The declaratory action in the Marshall decision, thus, became a blueprint for upholding the rights of the aboriginal community within Canada on a factual and historical context based on the Royal Proclamation of 1763.

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