Affirming Hereditary Rights: The Marshall Decision highlights the need for new arrangements

TML WEEKLY, VOL. 04 NO. 42-43
17 October 1999

On September 17, 1999, the Supreme Court of Canada issued its ruling on the Marshall Case. The majority of the Court ruled that the Mi'kmaq First Nation has the treaty right to hunt, gather, fish, in their territories, unimpeded for "necessities", or "modest livelihood". It concluded that Donald Marshall who had fished for eels and sold them for just over $700 was within the parameters of that definition. He was trying to augment his family's income with a "modest livelihood" selling a few hundred dollars worth of eels.

The Federal Department of Fisheries and Oceans (DFO) responded to the ruling by doing everything possible to present the recognition of Aboriginal rights as the problem and thereby incite divisions amongst the native and non-native fishers on the east coast.

The consequence of the Supreme Court ruling, especially in light of the federal Liberal response to it, demands that new arrangements be brought into being which deprive the government of its ability to negate the hereditary rights of the Native peoples. These arrangements must take into account the rights of the Mi'kmaq and Maliseet and other Aboriginal nations, the rights of the fishers, workers and other collectives of Canadians. They can be brought about only if the people themselves affirm their right to make the decisions which affect their collective and individual rights. Their tactics of struggle can then be conceived on the basis of furthering their claim to affirm their rights. On this basis, they can avert avert the traps set by their enemies through the divide and rule policy where conflicting interests between collectives are raised to the level of principle rather than harmonized on the basis of principle and common interests.

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