Marshall and Bernard: treaty rights and a treaty table.

• Author: McEvoy, John
• Position: Canada

In Marshall and Bernard, (1) the Supreme Court of Canada held that the "truckhouse" clause in 18th century treaties of peace and friendship between two Mi'kmaq communities and colonial officials in Nova Scotia does not create a treaty right to harvest trees for the purpose of sale. Six years earlier the Court, in Marshall 1 (2) and Marshall 2, (3) had held that the same "truckhouse" clause created a treaty right to catch fish for the purpose of sale. On both occasions, the Supreme Court reversed the decisions of provincial Courts of Appeal which initially construed the treaty right too narrowly and then, in reliance on Marshall 1, construed the treaty right too broadly. These decisions reset the framework for negotiations between the Mi'kmaq and Maliseet peoples and the governments of Canada and the three Maritime Provinces. The decision of the New Brunswick Court of Appeal in Bernard, (4) particularly on the aboriginal title issue, awakened a pressing interest by government in furthering negotiations. The Supreme Court decision has relieved that pressure but the needs and aspirations of the Mi'kmaq and Maliseet peoples must be addressed. To date, negotiations have been sporadic; there is much work to be done.

The reasons for decision of the trial courts, the summary conviction appeal courts, and the Courts of Appeal in the two matters that were joined in the Supreme Court as Marshall and Bernard present a case study in the common law method. At all levels of courts, including the Supreme Court, judges sought to divine the true meaning of Marshall 1 as supplemented by Marshall 2; in particular, whether the treaty right to harvest for commercial purposes applies to those resources and products gathered in the 18th century Mi'kmaq economy or only to those resources and products actually traded by the Mi'kmaq in the non-aboriginal economy. In this effort, the courts seemingly used the historical record to justify a conclusion rather than as the means to reach a conclusion. This method may undermine confidence in litigation as the principal means to resolve aboriginal rights issues and lead to direct negotiations through a treaty table.

The particular significance of Marshall and Bernard lies not only in the definition it provides to the scope of the commercial harvesting right of the 18th century peace and friendship treaties but in its clarification of the Court's understanding of the nature of aboriginal title in Canadian constitutional law. This comment is intended to address some of the key points pertaining to the Court's treatment of treaty rights issues so I leave aboriginal title to the more than able treatment of that subject by other contributors to this series of comments. With that caveat, this comment focuses on the judicial treatment of the treaty right; the meaning of the "moderate livelihood" limitation on the commercial exercise of treaty rights; and the identification of treaty rights beneficiaries,

The Treaty Right

In thirty brief paragraphs devoted to the treaty rights issue, McLachlin C.J.C., for the majority in Marshall and Bernard, revisited the scope of the treaty right created by the truckhouse clause as interpreted in the Court's earlier decisions in Marshall 1 and Marshall 2. (5) Those decisions did not require the Court to determine definitively the scope of the trade right because the historians who testified as expert witnesses for both sides in Marshall 1 had agreed that, if the treaty right existed, it included the harvest and sale of fish (in that instance, eels). The Court found the treaty right to be "existing" within the meaning of the Constitution Act, 1982, s. 35 and found in the 1760 treaty negotiations an internal limitation on the exercise of that right. The Maliseet negotiators for the initial treaty had asked for a truckhouse where the Maliseet could more conveniently trade for "necessaries", a word which the Court interpreted to limit the trading right (and the implicit harvesting right linked to it) to the achievement of a "moderate livelihood." (6)

In Marshall and Bernard, the historians again agreed on the basic facts regarding resource use. They essentially agreed that 18th century Mi'kmaq had not engaged in the commercial harvest of trees for sale to British colonists in Nova Scotia (an activity which the Mi'kmaq did not undertake until well after the treaty period). The historians also agreed that the Mi'kmaq had made items such as "bows from maple, arrows from cedar, birch bark baskets, canoes of birch bark ... lances, spears and dishes all made with a variety of wood products" as well as snowshoes and toboggans (7) and that such derivative items were the objects of occasional trade with the colonists incidental to the main trade in furs. Given this state of the trial record, the trial and summary conviction courts in Nova Scotia and New Brunswick essentially differed from their respective Courts of Appeal on whether modern commercial logging is a logical evolution of historical Mi'kmaq resource activity. The trial and summary conviction courts held that it was not and the Supreme Court agreed.

McLachlin C.J.C. summarized Marshall 1 as interpreting the truckhouse clause as a British promise that the Mi'kmaq "would be allowed to engage in traditional trade activities so as to obtain a moderate livelihood from the land and sea." (8) With that simple introductory statement, the treaty right issue in Marshall and Bernard was decided. The 1760-61 treaties protected only those trade activities contemplated by the treaty parties and, because the Mi'kmaq did not harvest trees for sale as trees or logs, the modern activity of commercial logging could not fit within the contemplated scope of the treaty right. McLachlin C.J.C. rejected the argument of the Mi'kmaq respondents that the scope of the treaty right was defined by what was traditionally gathered in the 18th century Mi'kmaq lifestyle and economy. She emphasized the significance of the truckhouse clause as a trade clause; that, by 1760-61, the Mi'kmaq and Europeans had been trading for 250 years; that the British sought to replace the French with exclusive trading rights with the Mi'kmaq; and that "the truckhouse clause was concerned with traditionally traded products." (9) McLachlin C.J.C. reinforced the logic of her reasoning with the wording of the clause itself:

The Mi'kmaq affirmed "that we will not barter or Exchange any Commodities in any manner but with such persons or the managers of such Truck houses as shall be appointed or Established by His Majesty's Governor." Nothing in these words comports a general right to harvest or gather natural resources then used. (10) ... This is consistent with the assertion in Marshall 2 that the fundamental issue is whether trade in a particular commodity 'was in the contemplation of [the] parties to the 1760 treaty' (para. 20). It is also consistent with the reference in Marshall 2 to treaty rights to "the type of things traditionally 'gathered' by the Mi'kmaq in a 1760 aboriginal lifestyle" (para. 20) like "fruits and berries" (para. 19). (11) Turning her attention to the logical evolution aspect of aboriginal treaty rights interpretation, McLachlin C.J.C. restricted its application to the historical activity and not the specific resources. As she stated, "the activity must be essentially the same" though exercised by modern means in a modern economy. (12) In the instant matter, the trial judges in Marshall and in Bernard found on the evidence that 18th century Mi'kmaq did not trade in logs or similar forest products so that modern logging could not be a logical evolution of such activity. McLachlin C.J.C. also noted that the evidence in Bernard did not "suggest that the British ever contemplated trade in anything but traditionally produced products, like fur or fish." (13)

There are several critical points to make about these majority reasons.

First, McLachlin C.J.C. grounded her analysis in the majority reasoning of Binnie J. in Marshall 1 and Marshall 2 rather than on the trial record of either matter under appeal (other than her conclusion from the evidence in Bernard). As noted above, the parties in Marshall 1 focused on the existence or not of the treaty right rather than on the scope of that right (because of the common position that the treaty right, if it existed, included the right to trade fish) and the Court did not have to determine definitively the scope of the right. In relying on Marshall 1 and Marshall 2, McLachlin C.J.C. undertook the same exercise that bedevilled the courts in New Brunswick and Nova Scotia in seeking answers in the Delphic words of Binnie J. But McLachlin C.J.C. had the distinct advantage of merely declaring the divined answers. Considering the limited focus of the parties in Marshall 1 and the fact driven nature of aboriginal rights, aboriginal treaty rights and aboriginal title litigation, it is somewhat anomalous to rely upon a previous judicial interpretation of a treaty clause when that interpretation was not itself fully grounded in the evidentiary record. Indeed, the Mi'kmaq defendants had argued that various conclusions drawn from Marshall I and Marshall 2 were based on obiter dicta but the courts rejected such characterization of the considered opinion of the Supreme Court. (14)

Second, McLachlin C.J.C.'s literal reading of the truckhouse clause illustrates the interpretive approach of the pre-Marshall 1 era when the trial and appeal courts in that case relied upon the literal negative wording of the truckhouse clause as limiting Mi'kmaq trading rather than as supporting any positive right to trade. It also mirrors her own dissent in Marshall 1 when she construed the truckhouse clause as not conferring a general right to trade. (15) To focus narrowly on the wording of the treaty clause without considering evidence of historical context to determine the common intention of the parties is to give greater weight...