Nlotes critiques

Peview Essays / Nlotes critiques

Historian and Courts : R. v. Marshall and Mi'kmaq Treaties on Trial Douglas C. Harris Introduction In September, 1999, the Supreme Court of Canada (SCC) released its decision in R v. Marshall. Donald Marshall Jr., no stranger to Canadian law, had been convicted of catching eels out of season, without a licence, and selling them, contrary to the federal Fisheries Act. He admitted the offences, but appealed his conviction to the Nova Scotia Court of Appeal and then to the SCC on the grounds that the 1760-61 treaties between the Mi'kmaq and the British recognized his right, as a Mi'kmaq, to catch and sell fish, and that this right was protected under the guarantee of Aboriginal and treaty rights in the Canadian constitution. Justice Binnie, writing for the majority of the SCC, overturned the convictions. The Mi'kmaq, he held, did have treaty rights based on the 1760-61 treaties to catch and sell fish, including eels. The Mi'kmaq were delighted. After many years and many appearances 4 before Canadian judges (R. v. Syliboy, R. v. Issac, and R. v. Simon), it appeared that the courts were finally prepared to recognize what the Mi'kmaq had long believed: that the eighteenth century treaties were the foundation of their relationship with Canada, that the treaties were still in force, and that they guaranteed commercial hunting and fishing rights in their traditional territories. 5 If the Mi'kmaq were delighted, the SCC's ruling raised fears among other fishers in the Maritimes that their access to the fisheries, already a

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A version of this paper was first presented to the Canadian Law and Society Association Annual Meeting, June 3, 2003. Thanks to fellow panellists Bill Wicken and David Yarrow, and to Cole Harris, Doug Hay, Arthur Ray, and Michael Thorns for their comments. R. v. Marshall, [1999] 4 C.N.L.R. 161 [Marshall1] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.l1, s.

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R. v. Syliboy, [1929] 1 D.L.R. 307; R. v. Issac (1975), 13 N.S.R. (2d) 460; R. v. Simon,

[1985] 2 S.C.R. 387. See also William C. Wicken, "Heard It From Our Grandfathers":

Mi'kmaq Treaty Tradition and the Syliboy Case of 1928 (1995) 44 UNBLJ 145. See Bruce H. Wildsmith, Q.C. "Vindicating Mi'kmaq Rights: The Struggle Before, During and After Marshall" (2001) 19 Windsor Y.B. Access Just. 203. Canadian Journal of Law and Society / Revue Canadienne Droit et Socitd, 2003,

Volume 18, no. 2, pp. 123-131

124 Douglas C. Harris

diminishing resource, might be curtailed to make room for a larger Mi'kmaq presence. Much was made of the fact that the written text of the 1760-61 treaties did not mention fishing or hunting, and that the SCC had somehow invented this right. The crucial clause in the treaty stipulated that the Mi'kmaq would not trade with anyone except with the British and only at designated trading posts, referred to "truckhouses", which the British would establish.6 Conflict ensued, extensively reported in the national media, between the Native and non-Native communities, and the Federal Department of Fisheries and Oceans.7 In a context of what appeared to be escalating violence, the West Nova Fishermen's Coalition, a group of non-Native commercial fishers who had intervened in the Marshall case, returned to the SCC to ask for a stay of the decision and a rehearing. The Coalition did not contest the SCC's finding that the Mi'kmaq had a treaty right to a commercial fishery, although its members could not have been pleased, but it sought clarification of the Federal government's right to regulate the fishery, including the Mi'kmaq fishery. In a ruling known as Marshall II, the SCC denied the application for a rehearing and stay, but in a highly unusual development it issued extensive reasons for its decision, in effect offering a clarification of its earlier decision.8 In this ruling, all the SCC justices who had sat on the appeal, including those who had dissented in Marshall I (Justices Gonthier and McLachlin), wrote in one voice, "for the court." That voice reiterated the federal government's right to regulate the fishery and, under certain circumstances, to infringe the Mi'kmaq treaty right. At least one commentator perceived the additional reasons as a useful clarification.9 Others found only confusion." The Mi'kmaq saw betrayal, and further reason to distrust the institutions of the Canadian state. Where, they asked, was the rule of law?" But this is to begin where William Wicken's book, Mi'kmaq Treaties on Trial: History, Land, and Donald MarshallJunior,ends. 2 Wicken's book is

primarily an investigation of the 1726 treaty between the British and Mi'kmaq, a treaty first negotiated and signed between the British and Abenaki in Boston in 1725, and to which the Mi'kmaq adhered the following year. Understanding this 1726 treaty, Wicken suggests, is essential Marshall 1, supra note 2, para 5. See Ken Coates, The Marshall Decision and Native Rights (Montreal & Kingston: McGillQueen's University Press, 2000). R. v. Marshall, [1999] 4 C.N.L.R. 301 [Marshall Il]. Thomas Issac, "The Courts, Government, and Public Policy: The Significance of R. v. Marshall" (2000) 63 Sask. L. Rev. 701, is almost alone in describing Marshall 11 as a "useful clarification and reiteration of the laws relating to treaty rights". See Leonard Rotman, "MarshallingPrinciples from the Marshall Morass" (2000) 23 Dal. L.J. 5; Phillip M. Saunders, "Getting Their Feet Wet: The Supreme Court and Practical Implications of Treaty Rights in the MarshallCase" (2000) 23 Dal. L.J. 48. Russel Lawrence Barsh and James (Sa'ke'j) Youngblood Henderson, "Marshallingthe

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Rule of Law in Canada: Of Eels and Honour" (1999) 11 Const. Forum Const. 1. 2

William C. Wicken, Mi'kmaq Treaties on Trial: History, Land, and Donald Marshall Junior(Toronto: University of Toronto Press, 2002).

Review Essay : Historiansand Courts 125

if one is to understand the content and meaning of later treaties. In fact, Wicken argues the 1760-61 treaties should be understood as renewing the earlier agreement. This was the contested historical ground of the Marshall case and Wicken was certainly not a detached observer. The Union of Nova Scotia Indians and the Confederacy of Mainland Micmacs, which together represent the thirteen Mi'kmaq communities in Nova Scotia and which funded Marshall's defence, employed Wicken as their expert historian. As such, he would spend fourteen and a half days on the witness stand describing for the court the context of Mi'kmaq/British relations in the first half of the eighteenth century. John Reid, a historian from St. Mary's University who also testified for the defence, suggested that the relations between the British and the Mi'kmaq, including their treaties, could only be understood as an "outgrowth from or a continuation of' relations between 3 the British and Abenaki, southern neighbours of the Mi'kmaq." Stephen Patterson, from the University of New Brunswick, who testified for the Crown, offered a different interpretation. He argued at trial and also in his later academic work that the 1760-61 treaties signalled a fundamental transformation in British-Mi'kmaq relations. Instead of a renewal of earlier treaties, Patterson suggested that the "hostilities and the subsequent treaties 14 of 1760-61 terminated the treaty agreements signed in 1725 and 1726." In all, Provincial Court Judge Embree heard more than 32 days of expert testimony from historians. It was within the adversarial context of litigation that Wicken did much of the research and writing for what was to become Mi'kmaq Treaties on Trial. In fact, Wicken notes that the three historians who testified at the trial only turned their academic attention to the treaties when asked to do so by a government agency or in the context of litigation.15 His task as a historian was largely defined by the Fisheries Act charges against Marshall, and the Mi'kmaq willingness to mount a defence based on an assertion of treaty rights. It is hardly surprisingly, therefore, that the questions on which the case seemed to turn are the questions that animate Wicken's book: What was the nature of Mi'kmaq society? What lands did the Mi'kmaq occupy? What was their degree of political organization? What procedures did the British follow in establishing new settlements in Mi'kmaq territory? What were the terms of the treaties between the Mi'kmaq and the British? And, ultimately, how were the written texts of the 1760-61 treaties, particularly the 'truckhouse' clause, to be understood? It is also not surprising that Wicken's conclusions generally supported the Mi'kmaq positions. R. v. Marshall [1997] N.S.J. No. 246, para 19. Embree, Prov. Ct. J., provides a summary of the expert historian witnesses and their testimony at paras. 12-20. Stephen E. Patterson, "Anatomy of a Treaty: Nova Scotia's First Native Treaty in '4 Historical Context" (1999) 48 UNBLJ 41 at 63. See also Patterson, "Indian-White Relations in Nova Scotia, 1749-61: A Study of Political Interaction" (1993) 13 Acadiensis Wicken, supra note 12, 10. 15 23. 13


In this context, the question of objectivity can never be far from the surface. The book's great strength is that Wicken does not hide from his role as participant observer.16 "[T]his book," Wicken writes, "should be read both as a history of the 1726 treaty and as a historical document."' 7 By this he means that the book is better understood if the context in which it was produced (Mi'kmaq treaty litigation in general and the Marshall trial and appeal in particular) and the role of its author (expert ethno-historical witness for the Mi'kmaq) is also understood. To achieve this, Wicken builds his role into the structure of the Mi'kmaq Treaties on Trial, periodically interrupting the historical analysis with the thoughts of a historian caught in the midst of legal proceedings. Through this juxtaposition of roleshistorian as expert witness-Wicken interrogates his experience and the fact that his work as a historian is, in part, a product of the litigation process. He never confronts the question of objectivity directly, leaving that discussion for others"8 and in doing so missing an opportunity to consider the historian's role in the construction of history, but Wicken appears to be saying that histories are always told for a purpose and that it is better to declare the purpose than to conceal it. Writing his involvement in Marshall into the structure of the book emphasizes that the history of these treaties, its telling at this juncture, and the manner in which it is being told is inseparable from the litigation. What of his historical analysis? Wicken uses the 1726 treaty in imaginative ways. The first two chapters, comprising Part I, are an ethnohistorian's attempt to draw on the treaty, particularly the 77 Mi'kmaq names appended to it, as evidence of Mi'kmaq social structure and political organization in the early eighteenth century. The sources for such reconstructions are few, so an attentive reading of something as thin as a list of names by a knowledgeable scholar can provide important insights.' Wicken links many of the names with specific communities and territories, in doing so, describing in general terms the patterns of Mi'kmaq life. He then analyzes the names to suggest the nature and extent of Mi'kmaq relations with the French and with other indigenous communities. In Part II, the body of the book, Wicken analyzes the terms of the 1726 treaty and develops his argument that the written text of the treaty must be understood as a representation, created by one party (the British), of an oral text that comprises the full agreement. The written text, Wicken suggests, is the best evidence, but not the only evidence of an oral text that is the treaty. "The treaty's text is the most complete and reliable source of information regarding the agreement," Wicken writes, "[h]owever, this document alone For another example, see Antonia Mills, Eagle Down is Our Law: Witsuiwit'in Law, Feasts, and Land Claims (Vancouver: University of British Columbia Press, 1994). Wicken, supra note 12, 16. 1s See, for example, Arthur J. Ray, "Native History on Trial: Confessions of an Expert Witness" (2003) 84 Can. Hist. Rev. 253. 19 Wicken's Ph.D thesis was a study of Mi'kmaq society in the first 260 years of European contact: Encounters with Tall Sails and Tall Tales: Mi'kmaq Society, 1500-1760 (D. Thesis, McGill University, 1994). 16


is insufficient to evaluate its meanings."2 Working clause by clause through the written text, and drawing on his earlier analysis of Mi'kmaq society, Wicken suggests the content of a larger oral text. Much of his discussion revolves around the ambiguity of words such as "submission", and what Mi'kmaq submission to the British king might have meant in the military, political, and economic context of the early seventeenth century. Had the Mi'kmaq agreed to become subjects of the British crown? Wicken argues this was unlikely. Instead, the Mi'kmaq probably saw the British as assuming the lead role in a network of alliances, much as the French crown had done. The process for establishing new British settlements represented another ambiguity in the treaty. The placement of British settlement was a source of conflict in the years following the Treaty of Utrecht, 1713, when France ceded mainland Nova Scotia to Britain. In chapter six, Wicken attempts to uncover what the parties might have understood to be the rules governing new British settlement. The first article of the 1726 Treaty begins: "That the Indians shall not molest any of His Majesty's subjects or their Dependants in their Settlements already made or Lawfully to be made ... Wicken explores the meaning of the final clause, "Lawfully to be made," suggesting that although far from providing specific guidance on the process for establishing new British settlements, the clause nonetheless indicated that some process was required, perhaps even mutual agreement. 22 Another plausible interpretation is that the British could establish settlements as they saw fit, so long as they were authorized by the Crown in accordance with English law. Privateers or others attempting unauthorized settlement would be barred, but not the Crown. Certainly in 1849 the British felt no need to consult the Mi'kmaq when establishing the garrison town in Halifax. Was this consistent with the 1726 treaty, or had the British decided to ignore its terms? Wicken's speculation is intriguing, the evidence far from conclusive. It is in Part III, "Renewing the 1726 Treaty", that Wicken turns to the 1749 and 1752 treaties, and then to the 1760-61 treaties. It is here that Wicken suggests that the interpretative framework of the 1726 treaty had changed in the intervening years, from one where the Mi'kmaq and the British understood the written treaty in the context of a larger oral text, to one where the British increasingly relied on a formal and legalistic reading, within the parameters of English law, of the written text. The British capture of Canada in 1759-60 had shifted the balance of power in North America dramatically, and Wicken acknowledges that the 1760-61 treaties contain some key differences from the earlier treaties that reflect the geo-political transformation. He argues, nonetheless, that it was hardly obvious to the British settlers and soldiers in Nova Scotia that their position was secure, and that the 1760-61 treaties must be read as the tail end of an era of treaty 20 21 22

Wicken, supra note 12, 88. Ibid. 118. Ibid. 128.

128 Douglas C. Harris making between the British and Mi'kmaq that began in 1726. The final treaties should be considered a renewal of earlier agreements, not a radical departure from them. There are places where Wicken's evidence is thin and where his conclusions are, admittedly, speculative. To a certain extent this is inevitable given that few written records remain or, in the case of the Mi'kmaq, were ever created. Nonetheless, Wicken's analysis of the written text of the 1726 treaty and its subsequent interpretation would have been enhanced had he made better use of English legal sources (treaties, legislation, common law, and treatises) and a secondary literature, both anthropological and historical, that considers the nature of Native trade and diplomacy in seventeenth and eighteenth century North America.23 There are a few fleeting references to this literature, but Wicken's resolute focus is the historical detail at issue in Marshall. This detail is important, but to the extent that the relationship between the French, Mi'kmaq and British in Nova Scotia was one of many between imperial powers and indigenous communities in North America, all of which raised similar issues about the structure of alliances, the conditions of trade and settlement, and the nature of personal relationships, Wicken could have made fuller use of that rich literature. The few theoretical forays, such as to Jack Goody's analysis of writing systems,24 seem forced and are underdeveloped. Wicken is most comfortable and at his best as an ethnohistorian describing Mi'kmaq society, and not as a legal historian or social theorist. Returning to the Marshallcase, Canada's highest court had been asked to provide a legal interpretation of the 1760-61 treaties based largely on the historical evidence presented to it. The centrality of historical interpretation to the outcome of the case was not lost on the SCC. Immediately preceding his analysis of the historical evidence, Binne J. wrote: The courts have attracted a certain amount of criticism from professional historians for what these historians see as an occasional tendency on the part of judges to assemble a "cut and paste" version of history ... While the tone of some of this criticism strikes the non-professional historian as intemperate, the basic objection, as I understand it, is that the judicial selection of facts and quotations is not always up to the standard demanded of the professional historian, which is said to be more nuanced. Experts, it is argued, are trained to read the various historical records together with the benefit of a protracted study of the period, and an appreciation of the frailties of the various sources. The

law sees finality of interpretation of historical events where finality, according to the professional historian, is not possible. The reality, of course, is that the courts are handed disputes that require for their 23

This would include works such as James Axtell, The Invasion Within: The Contest of Cultures in Colonial North America (New York: Oxford University Press, 1985) and Richard White, The Middle Ground: Indians, Empires and Republics in the Great Lakes

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(Cambridge: Cambridge University Press, 1991). Region, 1650-1815 Wicken, supra note 12, 12-13.


resolution the finding of certain historical facts. The litigating parties cannot await the possible of a stable academic consensus. The judicial process must do as best it can.25 In this passage, Binne J. refers to an emerging scholarship on the relationship between history and the courts, and between legal and historical interpretation, most of it emerging from historians, ethno-historians, and anthropologists involved in Aboriginal rights and title litigation.26 It is, as Binne J. suggests, frequently critical of the courts for the manner in which they use, and require litigants to use, historical and anthropological evidence. Nonetheless, the institutional limitations that Binnie J. highlights are real. The SCC has little control over the disputes that come before it and, for those that do, must rely on the evidence submitted to the trial courts. But what Binnie J. has missed in this passage, suggests historian and expert witness Arthur Ray, is that the adversarial process works to destabilize whatever degree of consensus might have existed.27 This is not necessarily a bad thing, particularly when the litigation process opens new avenues of scholarship and insists that academics consider alternative perspectives. Ray regards "the claims litigation and resolution process as a creative force that has not only yielded positive benefits for Indigenous people, but ... has also enriched the study of their pasts., 28 For Binnie J. to suggest, however, that the academic work is somehow immune from the litigation process and developing independently of it is to miss the destabilizing, and thus fertile, intersection of law and history. In the context of the Marshall case, legal historian David Bell suggests that "the stimulus of Maritime treaty litigation, culminating in the expert evidence of W.C. Wicken and S.E. Patterson at the Marshall trial, has revolutionized scholarly understanding of relations between Amerindians and Europeans in the 18th century".29 It has also polarized positions. Immediately following the passage reproduced above, Binnie J. cited Patterson's testimony for the Crown in support of his decision to acquit Marshall.3" Patterson had testified that the British would have understood, in 1760, that the Mi'kmaq had a right to catch fish and to trade their catch. Justice Binnie's use of the Crown's historical witness to establish the 25 MarshallI, supra note 2, paras. 36 and 37 26 In the context of Marshall, see Mark D. Walters, "Brightening the Covenant Chain:

Aboriginal Treaty Meanings in Law and History after Marshall" (2001) 24 Dal. L.J. 75; Arthur J. Ray, "Regina v. Marshall: Native History, the Judiciary and the Public" (2000) 29 Acadiensis 138. Another thoughtful contribution in the context of Aboriginal title litigation is Joel R. Fortune, "Construing Delgamuukw: Legal Arguments, Historical Argumentation, and the Philosophy of History," (1999) 51 U of T Fac. L.Rev. 80. See also the papers given at the Osgoode Society for Canadian Legal History Symposium, "History Goes to Court" 18 June 1999 [unpublished]. Binnie J. was a participant at the symposium and the paragraphs from his judgment reproduced above seem to reflect its influence. 28 Ray, supra note 18, 272 Arthur J. Ray, "Aboriginal Title and Treaty Rights Research: A Comparative Look at Australia, Canada, New Zealand and the United States" (2003) 37 New Zealand Journal of 29

History 5.

David Bell, "Was Amerindian Dispossession Lawful? The Response of Maritime Intellectuals" (2000) 23 Dal. L.J. 168. Marshall I, supra note 2, paras. 37-39

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position of the defence reveals a felt need among judges to create the semblance of consensus from a process designed to be adversarial. Any illusion of consensus, however, was soon dismantled in the reaction to the decision. In his comments to the press Patterson suggested that the SCC had misconstrued his testimony, and further, that "Binnie simply ignored all aspects of my testimony that established the context within which my remarks were given." "I said," he continued, "these treaties made native people subjects of the British Crown and as subjects of the British Crown, they have rights ...but it is the same right as anyone else's right. They would be subject to the very same regulations that other subjects of the British Crown would have been subject to in 1760-61."'" In effect, the Mi'kmaq fishery was a privilege granted by the Crown, not a right, and the Mi'kmaq had no greater right to the resource than non-Mi'kmaq fishers. In the final few pages of Mi'kmaq Treaties on Trial, Wicken considers the emancipatory possibilities of law, specifically Canadian law interpreted in Canadian courts, in the Mi'kmaq's search for justice. Notwithstanding his faithfulness to a rigorous ethno-historical method, Wicken did not pretend to be a disinterested academic, unconcerned with the outcome of the Marshall case. In the turbulent days following the decision, when conflict between fishers was front page news, Wicken wrote for Halifax's Sunday Herald, "Decision treats Mi'kmaq fairly-finally".32 About law, however, Wicken is equivocal. He notes that the defence counsel, in framing their argument, offered a somewhat compromised version of what he, as a historian, understood to be the content of the Mi'kmaq right to a commercial fishery. For tactical reasons, counsel chose to argue that the Mi'kmaq's right to a commercial fishery was limited to the provision of "necessaries" and subject to the Federal government's reasonable regulation of the fishery.33 Without this concession, the Mi'kmaq were unlikely to have succeeded given the Aboriginal SCC's evident concern, expressed in earlier cases, with unlimited 4 fisheries that might preclude any non-Aboriginal fishery. The emancipatory possibilities may be slim, and any which that appeared to result from Marshall I were hastily qualified in Marshall II. In the short term, the Mi'kmaq have greater access to a fishery than they did before the decisions. In the longer term, however, the impact of Marshall is far from Patterson's comments were widely in the national media, but these comments here are as reported in the National Post, October 28, 1999, under the following front page headline: "High Court Accused of 'Distorting' History: Professor says his testimony used out of context: Supreme Court judge 'simply ignored' historical evidence in ruling on native 32 fishing." Sunday Herald, 17 October 1999, C2. .These tactical moves are not uncommon. Defence counsel in R. v. Sparrow, [1990] 3 C.N.L.R. 160, made a similar concession, admitting that the Federal government had a role to play in regulating the B.C. salmon fishery for conservation purposes. In Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, the pleadings changed after the trial court decision from a claim to ownership of and jurisdiction over traditional territories to Aboriginal title and self-government. 34 In particular, see the SCC's decision in R. v. Gladstone, [1996] 4 C.N.L.R. 65, and commentary, Douglas C. Harris, "Territoriality, Aboriginal Rights, and the Heiltsuk Spawn-on-Kelp Fishery" (2000) 34 UBCLR 195-238. 31


clear. The SCC has recognized a treaty right to a commercial fishery, and in doing so seems to have adopted a broader approach to interpreting treaties between the Crown and indigenous peoples. A recent and important decision from the New Brunswick Court of Appeal, R. v. Bernard,35 has extended Mi'kmaq treaty rights beyond hunting and fishing to include a right to cut timber on Crown land to support a moderate livelihood. These are hopeful signs, but the exercise of rights remains limited to activities that would support a moderate livelihood, and the expanded the grounds on which the federal government may regulate and infringe those rights threaten their full enjoyment. For Wicken, the courts remain uncertain, perhaps even treacherous grounds for indigenous peoples attempting to establish Aboriginal or treaty rights, his participation in the process notwithstanding. Douglas C. Harris Faculty of Law University of British Columbia Vancouver (B.C.) Canada V6T IZI [email protected]

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R. v. Bernard,[2003] 4 C.N.L.R. 48.