Academic journal article Manitoba History

"Storehouses of the Good God:" Aborignial Peoples and Freshwater Fisheries in Manitoba

Academic journal article Manitoba History

"Storehouses of the Good God:" Aborignial Peoples and Freshwater Fisheries in Manitoba

Article excerpt

The recent conflict between Mi'kmaq communities and lobster fishermen that followed the Supreme Court of Canada's decision in R. v. Marshall, was an expression of fundamental disagreement about the exercise of Treaty and Aboriginal rights in modern times.(1) The Court found that "... the 1760 treaty does affirm the right of the Mi'kmaq people to continue 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,'" and that nothing less would hold up "the honour and integrity of the Crown."(2) While there was much discussion of the contemporary meaning of a treaty signed in 1760, the Supreme Court denoted a commercial dimension to the right: "The treaty right contemplated in 1760 was not a right to trade generally for economic gain or the accumulation of wealth, but a right to trade for `necessaries.' In a modern context this would be equivalent to a 'moderate livelihood' which includes such basics as `food, clothing and housing, supplemented by a few amenities'."(3) The Court recognized the commercial relations at the time of the treaty and interpreted the treaty in a manner that permitted the recognition of these rights within the meaning of section 35 of the Constitution Act, 1982. The Marshall judgment not only identified a limit for the scope of the commercial right, but also asserted that the right could be regulated: "Catch limits that could reasonably be expected to produce a moderate livelihood for individual Mi'kmaq families at present-day standards could be established by regulation and enforced without violating the treaty right."(4) As with many Aboriginal rights cases, historical documents loomed large in the evidence presented at trial. Also at issue in the Marshall case was the use of "extrinsic evidence" (documentation on the historical and cultural context of a treaty) for removing ambiguity from the written terms of a treaty.(5)

Although the Metis have been recognized as an Aboriginal people whose rights have been affirmed and recognized by the Constitution Act, 1982, the judicial recognition of Metis rights, lags behind the recognition of Treaty rights by the courts. Recently, courts in Saskatchewan have been confronted with Metis hunting and fishing rights. In R. v. Morin and Daigneault, Judge Meagher of the Provincial Court of Saskatchewan found that in the a region loosely known as Treaty Ten: "... Metis of northwest Saskatchewan have an Aboriginal right to fish and that the right arose prior to 1870. I find that no legislation or agreement with the Crown has extinguished that right, I refer in particular to the Dominion Lands Act, 1906, and Order-in-Council 1459."(6) The absence of any evidence to show that a right had been clearly and plainly extinguished was crucial. Subsequently, in 1997, Judge Laing of Queen's Bench dismissed the Crown's appeal in Morin and Daigneault, thereby providing further judicial recognition of a Metis Aboriginal right to fish.(7)

The judicial recognition of an Aboriginal right entails a satisfaction of certain legal tests, which often result in a close examination of history. Judge Laing stated: "... it should be noted that the case law makes it perfectly clear that Aboriginal rights are site specific and the finding of an existing Aboriginal right in one group in one location does not establish the same right for another group in a different location."(8) In R. v. Van der Peet, Lamer C.J. indicated the specificity of an Aboriginal right:

Aboriginal rights are not general and universal; their scope and content must be determined on a case by case basis. The fact that one group of Aboriginal people has an Aboriginal right to do a particular thing will not be, without something more, sufficient to demonstrate that another Aboriginal community has the same Aboriginal right. The existence of the right will be specific to each Aboriginal community. …

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