John Cummins, M.P. Delta-South Richmond

News Release

FOR IMMEDIATE RELEASE
December 5, 2000

MARSHALL DECISI0N: Dhaliwal`s Got It Wrong!!

What the Supreme Court of Canada actually said in its Clarification:

• "The Marshall appeal related to fishing eel out of season, contrary to federal fishery regulations. In its judgement of September 17, 1999, a majority of 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."
• "It required the Court to determine whether certain charges relating to the appellant's participation in the eel fishery could be sustained. The majority judgment of September 17, 1999 was limited to the issues necessary to dispose of the appellant's guilt or innocence. (11)
• "This appeal was directed solely to the issue whether the Crown had proven the collective treaty right held by his community allowed him to fish for eels in what was described as `a small-scale commercial activity to help subsidize or support himself and his common-law spouse'" (13)
• "In the absence of fresh agreement with the Crown, the exercise of the treaty rights will be limited to the area traditionally used by the local community with which the `separate but similar' treaty was made...Moreover, the treaty rights...exercise is limited to the purpose of obtaining from the identified resources the wherewithal to trade for `necessaries'". (17)
• "The emphasis in 1999, as in 1760, is on assuring Mi'kmaq equitable access to identified resources for the purpose of earning a moderate living." (38)
• What the Privy Council Office advised Ministers (including the Prime Minister):
• "The Court specified the treaty right to fish, hunt and gather was...limited in nature and limited, in the case before it, to the right to fish, specifically for eels."
• "It underlined that the original ruling dealt with the right to fish, specifically for eels."
• "The Court took what most observers consider to be an unusual step by clarifying several aspects of its original decision and emphasizing the limited scope of the September 17, 1999 decision.
• "The Court explicitly stated that the scope of the Marshall ruling was confined to Marshall's right to trade eels..."

What the Court did not say:

The Mi'kmaq have a treaty right to a moderate livelihood to fish, hunt and gather.

Donald Marshall had a treaty right to a small-scale commercial eel, lobster, crab, and scallop fishery including any other species of commercial value.

Mr. Marshall's limited commercial treaty right can be exercised throughout Quebec, the Maritimes, Newfoundland and Labrador.

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For more information, please contact:

John Cummins, M.P.
(613) 992-2957
(604) 970-0937 (Cell)