Landmark Case: Aboriginal Treaty Rights – R. v. Marshall

Each OJEN Landmark Case includes a case summary, classroom discussion questions and worksheets that encourage students to explore both the legal and societal importance of the case.

In 1993, Donald Marhsall, Jr., a Mi’kmaq Indian, was arrested and charged with selling eels without a license, fishing without a license and fishing during closed season with illegal nets. Mr. Marshall admitted that he caught and sold 463 pounds of eel without a licence and with a prohibited net within closed times. However, Mr. Marshall argued that he should not be found guilty of the charges that were against him because, as a Mi’kmaq Indian, he possessed the treaty right to catch and sell fish pursuant to treaties that had been signed between the British and the Mi’kmaq in 1760-61.

The majority of the Supreme Court of Canada (SCC) found that since Mr. Marshall was selling eel in limited quantities to support himself and his family, and not operating a large-scale commercial business, the scope of his activities fell within the treaty right. The SCC acquitted Mr. Marshall on all charges. The full decision is available here.