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Trial may determine Native fishing rights

Author: 
D.B. Smith, Windspeaker Staff Writer, Antigonish N.S
Volume: 
11
Issue: 
21
Year: 
1994

Page 5

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The trial of one Micmac fisherman scheduled for next summer could determine the course of Native fishing rights in the Maritimes.

The outcome of Donald Marshall's trial on charges of illegal fishing will hinge on the validity of the 1752 Treaty of Peace and Friendship, Confederacy of Mainland Micmac lawyer Eric Zscheile said.

The treaty, which was signed by the Micmac Nations and the British authorities of the time, represents the only written recognition of the Micmacs' traditional right to fish outside federal jurisdiction, Zscheile said.

Marshall was charged this past fall by Fisheries officials with fishing without a license, fishing out of season and fishing with the intent to sell the catch.

If the court upholds Marshall's treaty right, it would mean the Micmac could catch and sell fish without a license.

This is not the first time the confederacy has gone to court to defend their rights under that treaty. A mid-1980s decision by the Supreme Court of Canada ruled the Micmac's hunting rights under the 1752 treaty were still valid, allowing them to hunt outside provincial jurisdiction.

The latest case will focus on the commercial aspect of the document.

Marshall is not new to controversy. The 39-year-old Micmac is renowned for initiating reforms within the province's justice system after serving 11 years for a murder he did not commit.

Although he recognizes the importance of treaty rights, Marshall said he is not looking forward to being at the centre of attention again.

But a decision in his favor could have far-reaching effects. Tensions between Native and non-Native fishermen are running high this year, especially with last spring's closing of the East Coast fishery.

Several Native fishing boats were vandalized and some even set ablaze last summer by those who see the Native right to fish outside federal jurisdiction as unfair.

A trial date has been set for June 6. The confederacy agreed to pick up Marshall's legal costs.

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