Editors --- "R v Marshall, 17 November 1999 - Case Summary" [2000] AUIndigLawRpr 7; (2000) 5(1) Australian Indigenous Law Reporter 93

• R V Marshall
• Facts:
• Held:

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Court and Tribunal Decisions - Canada

R v Marshall

Supreme Court of Canada (Lamer CJ and L’Heureux-Dubi, Gonthier, McLachlin, Iacobucci and Binnie JJ)
November 17, 1999

First Nations — treaty rights — fishing rights — treaty interpretation — accused Mi’kmaq found to possess fishing rights that provided an exemption to fishing regulations — whether government can regulate fishing rights — circumstances in which government can regulate a treaty right — intervener appealing for a rehearing — whether Supreme Court has jurisdiction to hear intervener’s application — Rules of Supreme Court of Canada SOR/83-74, r 1, 27 — Maritime Provinces Fishery Regulations SOR/93-55 Sch III, item 2 — Fishery (General) Regulations SOR/92-53, s 35(2) — Constitution Act 1982 s 35(1) — Aboriginal Communal Fishing Licenses Regulations SOR/93-332 [am SOR/94-390]

Facts:

The West Nova Fishermen’s Coalition, an intervener in the Marshall case (R v Marshall, Supreme Court of Canada, 17 September 1999) applied for a rehearing of the appeal and, if successful on that issue, for a stay of judgement pending the rehearing. The intervener’s application was primarily directed to the presumed effects of the Court’s judgment on the lobster fishery, even though the Marshall case related to fishing eel out of season contrary to federal fishery regulations. The Coalition also sought a further trial limited to the issue of whether the application of the fisheries regulations to the exercise of a Mi’kmaq treaty right could be justified on conservation or other grounds. The parties and other interveners opposed the rehearing and any further trial.

Held:

As per Lamer CJ and L’Heureux-Dubi, Gonthier, McLachlin, Iacobucci and Binnie JJ:

1. The motion for a rehearing and stay of the judgment should be denied.

2. The Supreme Court has jurisdiction to hear an intervener’s application for a rehearing but will only do so in exceptional circumstances. Such circumstances did not exist in this instance.

3. The responses to the intervener’s questions are evident in the majority judgement and prior decisions of the Court. The Coalition’s application is based on a misconception of the scope of the Court’s majority judgment of 17 September 1999 and the appellant should not have his acquittal kept in jeopardy while issues much broader than the specifics of his prosecution are litigated.

4. The resulting acquittal from the majority judgement does not stand for the proposition that government can never regulate the Mi’kmaq limited commercial right to fish. In this case, the Crown elected not to try to justify the licensing or closed season restriction on the eel fishery in this prosecution. The factual context for justification is of great importance and the strength of the justification may vary depending on the resource, species, community and time. Federal and provincial governments can regulate the exercise of a treaty right where justified on conservation grounds. Such regulatory authority also extends to other compelling and substantial public objectives that may include economic and regional fairness, and recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups. Aboriginal people should be consulted about limitations on the exercise of treaty and aboriginal rights.^[1]

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^[1] The full text of this judgment is available at <www.droit.montreal.ca/doc/csc-scc/en/rec/html/marshal2.en.html>.