Marshall v. Regina

In Aboriginal Rights/Defences, Fish Cases on (Updated )

This case involved a Mikmaq Indian who was charged with fishing with a prohibited net during a closed period and selling fish without a licence in violation of Federal fishery regulations.

The main issue in the case was whether he possessed a treaty right to sell fish so as to be exempted from compliance with regulations.

The Majority of the court interpreted the treaty so as to give the Mikmaq a right to catch and trade in fish. However, this was limited to what was necessary to supply them with necessaries. In a modern context this means the right to earn a moderate livelihood, but not the accumulation of wealth. Accordingly, this treaty right can be contained by regulation within proper limits.

With respect to justification under the test set out in R v Badger, [1996] 1 S.C.R. 771, the Court said "in light of the Crown’s unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime in the absence of some explicit guidance." (R. v. Badger). The Court reviewed s. 7 of the Fisheries Act and the regulations which the accused was charged under and held that since they contained no guidance on how the Minister should exercise his discretion with respect to treaty rights, they could not be justified under s. 35. Accordingly, the accused was acquitted.

Editors note: See the article on this case in the Fisheries Papers section.