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Wednesday, February 6, 2013

McMillan on History(ies) and Mi'kmaq Treaty Interpretation

Legal Anthropologist Jane McMillan, formerly of the Law and Society Department at York University, and currently Canada Research Chair at St. Francis Xavier University, has published  “Mu kisi maqumawkik pasik kataq - We can't only eat eels:" Mi'kmaq contested Histories and uncontested silences" in volume 32 issue 1 of the Canadian Journal of Native Studies.

Here's the abstract:


In 1999, the Supreme Court of Canada accepted Donald Marshall Jr.'s argument that the Mi'kmaq treaties of 1760-1761 gave him the right to fish for a living even if it meant disregarding federal regulations. This is a story about Donald Marshall's silenced history, the cultural history that gave him the authority to fish for eels. It tells about a sequence of events in which a Mi'kmaq man was trying to earn an honest living fishing the innocuous eel and ended up becoming the focus of a treaty test case that has significantly altered Indigenous / non-Indigenous relations in the Atlantic provinces. The telling of his story contextualizes and juxtaposes the reality of Mi'kmaq fishing as an articulation of Mi'kmaq identity against the history deemed legitimate by the Nova Scotia judicial system and non-Native fishers. On August 24, 1993, and at or near Pomquet Harbour, Marshall (an aboriginal person, being a status Mi'kmaq Indian registered under provisions of the Indian Act and a member of the Membertou Band, and Indian Band under the Indian Act) and another person brought their eels from the holding pens ashore at the location where they kept their boats. This location is situated on lands which are part of the Afton Indian Reserve, at Antigonish County. Marshall helped weight and load his eels onto a truck belonging to South Shore Trading Company, New Brunswick. South Shore is engaged in the purchase and sale of fish. Marshall sold 463 pounds of his eels to South Shore at $1.70 per pound. Marshall did not at any time hold a license within the meaning of S. 4(1)(a) of the Maritime Provinces Fishery Regulations and S. 35(2) of the Fishery Act with respect to fishing for or selling eels from Pomquet Harbour (R. v. Marsha/I [1999] 3 S.C.R 26014).

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