By: Jane McMillan
Dr. Jane McMillan is a legal anthropologist and professor at St Francis University, who conducts and participates in innovative, primarily community-initiated research, focused on the intersections of Indigenous knowledge with community strategies for implementing treaty and Aboriginal rights.
PUBLISHED in “Rooted Constitutionalism” | (2021) 1:1 Rooted
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It is a wonderful privilege to be writing here in Mi’kma’ki the traditional territory of the Mi’kmaw Nation, and an honour to be invited to make a contribution to Rooted.[i]
Donald Marshall Junior, a Mi’kmaw man from Nova Scotia, was wrongfully convicted of murder in 1972. Marshall was only 17 years old. He spent 11 years in prison before he could prove his innocence. It was one of the first miscarriages of justice to gain notoriety in Canada. A Royal Commission of Inquiry into Marshall’s wrongful conviction disclosed systemic racism in policing and, more broadly, throughout the justice system. It exposed the unequal treatment of Indigenous peoples before the law, led to fundamental changes in the law of procedure and evidence, and rightly punctured the Canadian justice system’s inflated self-regard. The Commission ultimately tendered 82 recommendations to address systemic faults in the administration of justice. In summary, it found that:
The criminal justice system failed Donald Marshall, Jr. at virtually every turn from his arrest and wrongful conviction for murder in 1971 up to, and even beyond, his acquittal by the Court of Appeal in 1983. The tragedy of the failure is compounded by evidence that this miscarriage of justice could – and should – have been prevented, or at least corrected quickly, if those involved in the system had carried out their duties in a professional and/or competent manner. That they did not is due, in part at least, to the fact that Donald Marshall, Jr. is a native.[ii]Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution: Digest of Findings and Recommendations (Halifax: Lieutenant Governor in Council, 1989) at 1.
Donald Marshall’s wrongful prosecution, conviction and denial of his appeals are emblematic of the systemic discrimination and racism experienced by Canadian Indigenous peoples during the 20th and now 21st centuries.[iii]
Donald Marshall Jr. and a Nation’s Constitutional Revival
I shared many wonderful years and many extraordinary experiences with Donald Marshall Junior. I moved to Mi’kma’ki, Mi’kmaw territory in August 1991. I met Donald Marshall Junior, the eldest son of Grand Chief Donald Marshall Senior and Kalolin Googoo, and soon became Donald Marshall Junior’s fishing wife.[iv] Grand Chief Marshall was a highly regarded leader of the seven districts of the Mi’kmaq Nation, a revered treaty rights advocate and nation-builder. Donald Marshall Junior, once released from prison, traced his father’s footsteps.
Junior loved to fish. He was a grateful harvester and enjoyed cooking what he caught. He embraced the solitude of wandering down the river with his fly rod or jig. Junior’s passion for fishing led us to catch eels for a living. Eels are an important facet of Mi’kmaq culture, and eel fishing a time-honoured custom. After the catch, we would take out the choice eels, and Junior would spend hours cleaning them to pass to the elders in the community. He also fished for feasts and important events like Treaty Day and mawiomi (powwows). He embodied the constitutionalism of the L’nu, the Mi’kmaq peoples, respecting the resource and sustaining honour by sharing. Fishing eels is hard, dirty work, but we liked the adventure. Every time there was a heavy rainfall during fishing season, Junior would rub his hands together and say, “Lots of eels tomorrow, baby!”, and he was always right.[v]
In fishing and selling eels, Donald Marshall Junior believed he was simply carrying out his treaty right to earn a livelihood. Others took a very different view – in particular, the federal government as successor to the Crown co-signatory to the same treaties. In short order, his comfortable exercise of his traditional treaty rights was abruptly interrupted.
In August 1993 we were charged with illegally fishing eel. Junior’s subsequent prosecution grounded a treaty test case that ultimately refigured Indigenous and settler resource relations in the Atlantic provinces of Canada. When the Department of Fisheries and Oceans (DFO) officer approached our boat and asked to see our licenses, Junior’s response was immediate: “I don’t need a license, I have the 1752 treaty” — just as his father had earlier fought for the treaty right to hunt moose. “I don’t know anything about a treaty”, said the DFO officer.[vi]
It did not cross our minds that fishing slimy, sometimes stinky, but always yummy eels would lead, some six years later, to the transformative Supreme Court of Canada decision of R. v. Marshall. We were just trying to keep food on the table and gas in the boat, and with luck, have a bit left over for beers at the 123 Legion in We’koqma’q. Junior was a Mi’kmaw person whose ancestry is rooted in the land, sea and air of Mi’kma’ki. He was exercising his livelihood rights as a treaty beneficiary. He was living L’nu constitutionalism actively shaping the resurgence of his Indigenous identity against the history of its oppression.[vii]
Junior quickly understood that his fishing trial had become a crucial test of his nation’s treaty rights. He carried the burden with a heavy heart, often looking to his father’s legacy for guidance. The stress of repeatedly returning to court and the lengthy trial and appeals, along with his anxiety over the consequences for Mi’kmaq identity and livelihood if he lost the case, taxed his already fragile health. Junior Marshall left us far too soon, on August 6, 2009.
For close to thirty years, I have been a student of many generous Mi’kmaw teachers who patiently shared their stories and experiences with me. I am particularly grateful to the Marshall family and, of course, for the years I spent with Junior. Now a legal anthropologist, I am dedicated to sharing these teachings. They instil the values that frame Mi’kmaw legal principles, honour treaty relationships, mobilize L’nu constitutionalism, and respect the rights of the Mi’kmaq Nation. History changed that August day on the waters near Paqtnkek, and I am humbled by the transformative power of eels. I hope that my work honours Junior’s legacy and the Mi’kmaw Nation.
Land, Sea and Air: The Sources of L’nu Constutionalism
The L’nu have lived in Mi’kma’ki, the Atlantic region of what is now Canada, since time immemorial. Over the course of 14,000 years, well before the arrival of European explorers and settlers, the Mi’kmaq peoples developed vast trading networks, sophisticated political and legal systems, and a rich social and cultural history.[viii] Their creation stories identify sacred connections to their territories. The stories teach Mi’kmaq peoples about their clan histories, value systems, modes of governance and their relationships with each other.[ix] Over time, the L’nu refined concepts of law and social order that protected the environment, respected their ancestors, and fostered generations of prosperity. Honouring family relations, msit no’kmaq (all my relations), is vital to Mi’kmaq daily life, guiding individual and collective interactions and their relations with the universe. It is the framework of their constitution. The Mi’kmaq believe that the spirits of their ancestors reside in the land, sea and sky. They take seriously their responsibility to honour and protect the legacies of their ancestors for future generations.
Before first contact, the Mi’kmaw were sovereign peoples subject to their own legal practices.[x] At the centre of Mi’kmaw legal culture is a body of fundamental law grounded in the underlying principles of weji-sqalia’tek (we sprout from the land) and msit no’kmaq (all my relations), and the rule of honour (kepmite’tmnej). One honours relationships with other people, the ancestors, and the lands and waters and their gifts, but one does not own them. One bears a responsibility to them, not ownership over them.[xi] These principles connect L’nu people to each other and to their territory. They are the essence of L’nu constitutionalism.
Mi’kmaw relations with their territories are signified in their place-naming. By assigning place names, the Mi’kmaw implanted cultural meanings within collective memories, extending knowledge and experience in land use across generations.[xii] When Mi’kmaq peoples use a place name they quote ancestral speech, acknowledging a sacred connection and a responsibility to honour. Msit no’kmaq is a teaching that connects Mi’kmaw to each other and to the world around them. Each clan had a representative symbol, usually depicting an animal or a physical feature of the territory from which they sprouted. The family heads of each district were responsible for planning the seasonal movements of the people, confirming and reassigning harvesting territories, delegating work to immediate relatives, and providing them with hunting dogs, canoes, provisions and reserves for expeditions.[xiii] Inevitably, they reminded community members of their responsibility to share and care for one another.
The pre-settler Mi’kmaq Nation comprised seven districts divided according to the geographical landscape and natural boundaries, such as rivers. To lead the Mi’kmaq in their domestic relations, Kisu’lk (the creator) endowed a few persons from each generation with special knowledge of the woodlands, the ocean and concerns of the spirit. These people, wise and trusted, joined together in a governing body, representing the highest authority of Mi’kmaq political, economic, and spiritual organization. Mi’kmaq polity had three levels: local, district, and national. Each district had leaders who participated in a larger national political organization called Mi’kmawey Mawio’mi, the Mi’kmaq Grand Council.[xiv]
The Mi’kmaq were largely maritime peoples living in diverse environments. They had access to a great variety of food, enhancing their prospect for survival when particular shortages occurred. Although there were periods of starvation, the Mi’kmaq flourished through most of their history. Prior to European settlement, up to 90% of their dietary needs were harvested from the ocean and rivers.[xv] Eels, cod, salmon, shellfish, sea vegetables, seals and whales were abundant. Evolving fishing technologies included cooperative stone weirs, basket traps, hook and line, and spearfishing.[xvi]
Mi’kmaq social organization included laws governing leadership, ceremony, resource sharing and stewardship. These institutions connected people to the land through kinship, language and culture. Customs were based on shared values and were taught through oral traditions and experiential learning, within families and communities. Courtship, marriage and child rearing involved elaborate gift exchange, permission seeking, subsistence gathering and rites of passage rituals, as well as extensive counselling from respected elders, spiritually powerful people known as pouin (shaman) and specialized knowledge carriers.
The Mi’kmaw had rules for making sure society worked in an orderly way. Justice is part of a meaning system framed by culture, where symbols, rituals, and language facilitate the creation of commonsense understandings that legitimate the core values of the community and the actions needed to protect and support those values. Indigenous legal traditions are informed by Mi’kmaw spiritual belief systems, and by the political and economic practices of social organization. Spiritual sanctions and purification rituals, such as fasting and sweat lodge ceremonies, helped guide people, heal rifts between individuals, families and communities, and explain the unexplainable.
Mi’kmaq relationships with marine life were incorporated in every facet of their lives, from cosmological belief systems to political and family organization. The premises of Mi’kmaq traditional fisheries were spiritual as well as practical, focusing mainly on the wellbeing and survival of families and community members. Mi’kmaq peoples fished, hunted and collected. Their subsistence activities adhered to the concept of netukulimk, which ground harvesting practices in sustainability and co-existence.[xvii]
Subsistence customs reflected the holistic interconnectedness of Mi’kmaq law embedded in tribal consciousness. They governed behaviour, particularly those bearing on survival, such as sharing, providing, honouring ancestors and celebrating procurement skill and accomplishment. Netukulimk comprehended the proper practice of seeking bounty provided by Kisu’lk for the support and well-being of the individual and the nation. Netukulimk is thus intimately tied to living L’nu constitutionalism. One’s place to hunt and fish, taken in its broadest sense, is the tract on which one practices netukulimk. Oral histories, creation stories, myths, petroglyphs and archival records chronicle ritual practices, ceremonies and spiritual concepts relating to resource use, including extraction protocols, taboos and prohibitions, as indicators of customary stewardship.[xviii] The Mi’kmaq fisheries prospered for thousands of years.
Treaties with the Crown: The First 300 Years
Due to their proximity to Europe, the Mi’kmaq have endured one of the longest periods of colonial encounter. They have a rich history of engaging and negotiating with newcomers to their territories. The Mi’kmaq practiced treaty diplomacy, kisa’muemkewy,[xix] among their own citizens and with allies. They developed conventions of community engagement through mawiomi – formal gatherings that included storytelling, ceremonies and rituals, by which they came to a collective understanding of treaty obligations reflective of their world views.[xx] The 1726 treaty with the British Crown laid out protections for the customary rights of the Mi’kmaq, including hunting, fishing, and planting. These understandings were reaffirmed and expanded several times between 1749 and 1778. The treaties of 1760 and 1761 instituted covenants securing Mi’kmaq rights to both harvest and sell natural resources.
In 1999, in R. v. Marshall, the Supreme Court affirmed the Mi’kmaq right to livelihood, as set out in the treaties of 1760-61.[xxi] The ruling was transformative. It validated the Made-in-Nova Scotia reconciliative process initiated in 1997, when the Mi’kmaq Chiefs of Nova Scotia, the Government of Nova Scotia, and the Government of Canada signed the Tripartite Memorandum of Understanding – an agreement between the three parties to discuss issues and “matters of mutual concern.” The Tripartite Forum approach was founded on one of the 82 recommendations of the Royal Commission on the Donald Marshall Jr. Prosecution (1989).
The Marshall decision triggered a redistribution of access to natural resources, amplifying Mi’kmaq economic development and autonomy. There was now potential to replace historical patterns of dependency and subjugation with sustainable community advancement, through the exercise of affirmed treaty and Aboriginal rights and through the substantiation of traditional knowledge. It marked an unprecedented turn in colonial relations.[xxii]
As held by the Supreme Court, the Mi’kmaq have the right, pursuant to treaties and Section 35 of the Constitution Act, 1982, to harvest and to sell fish to obtain a moderate livelihood.[xxiii] The Mi’kmaq Nation in Nova Scotia has worked hard to leverage the Marshall decision. The Mi’kmaq demand predictable, productive, and respectful consultation and negotiation with settlers and their governments as they implement their livelihood fisheries. However, discussions with the Department of Fisheries and Oceans have failed to generate substantive recognition, changes in fishing regulations, or the implementation of Mi’kmaw livelihood rights management protocols. “Arguably”, Anthony Davis wrote in late-2020, “from 1999 to this day, the Mi’kmaq have foregone hundreds of millions of dollars in earnings while waiting for an appropriate resolution.”[xxiv]
Impatient with the government’s reticence to honour its treaty obligations, some Mi’kmaw communities developed and launched their own netukulimk fish harvesting strategy. As in the past, Mi’kmaw fishers have been met with threats, physical assaults, seizure of their gear and harvests, torched boats and storage sheds, and even gun fire. The continuing failure of law enforcement to protect Mi’kmaw fishers and their families from routine intimidation and violence only compounds the historical injustice. Tragically and shamefully, the systemic racism epitomized by Donald Marshall’s wrongful conviction persists. The clashes of the recent lobster wars are only the most recent example.[xxv] We are witnessing the inevitable consequences of a colonial regulatory regime that lacks the resolve to decolonize its jurisdiction. The repair of nation-to-nation relationships is a critical first step. The inequities borne by Mi’kmaw Nation will continue unless and until the failure to recognize, respect and implement L’nu constitutionalism and livelihood rights are corrected. To address systemic discrimination, we must have systemic change.
We live in an era of aspirational reconciliation. Assessing the distribution of jurisdiction and the interface between Canadian and Indigenous legal and constitutional orders is critical to the achieving substantive progress. The Mi’kmaq are still struggling to decolonize their legal traditions. Their cultural resilience grows stronger, as does their capacity to productively navigate external and internal pressures. They draw on culturally entrenched narratives of law to interpret their lives and their relationships. These constructions define their legal consciousness, which in turn legitimate community choices. Netukulimk harvesting strategies are reparative exercises in self-empowerment, autonomy and legal reification. They exemplify living L’nu constitutionalism, a path forward in which justice, sovereignty, and the right to livelihood and self-determination may become reality, at last.
[i] I am grateful for the teachings shared with me by members of the Mi’kmaw Nation and for the transcendent editorial advice of Justice Melvyn Green.
[ii] Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution: Digest of Findings and Recommendations (Halifax: Lieutenant Governor in Council, 1989) at 1. See Jane L McMillan, Truth and Conviction: Donald Marshall Jr. and the Mi’kmaw Quest for Justice (Vancouver: UBC Press, 2018) [McMillan, Truth and Conviction] and Michael Harris, Justice Denied: The Law versus Donald Marshall (Toronto: Totem Books, 1986).
[iii] See Jane L McMillan “Living Legal Traditions: Mi’kmaw Justice in Nova Scotia” (2016 ) 67 UNBLJ 187.
[iv] My ancestors are from Scotland, Ireland and the Alsace-Lorraine region, and probably arrived in Canada in the early 1800s.
[v] Jane L McMillan, “Mu kisi maqumawkik pasik kataw – We Can’t Only Eat Eels: Mi’kmaq Contested Histories and Uncontested Silences” (2012) 32:2 Canadian J Native Studies. Fall 119.
[vii] See Aaron Mills, “Rooted Constitutionalism: Growing Political Community” in Asch, Borrows, Tully (eds) Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings (Toronto: University of Toronto Press, 2018, 133-173.
[viii] See Bernard Hoffman, Historical Ethnography of the Micmac of the Sixteenth and Seventeenth Centuries (PhD Dissertation, University of California, Berkeley 1955) [unpublished]. See also Daniel Paul, We Were Not the Savages: A Micmac Perspective on the Collision of European and Aboriginal Civilizations (Halifax: Fernwood Publishing, 2006).
[ix] See Stephen Augustine, “Negotiating for Life and Survival” in Marie Battiste, ed,Living Treaties: Narrating Mi’kmaw Treaty Relations (Sydney: Cape Breton University Press, 2016) at 16.
[x] See James Sákéj Henderson, The Mi’kmaw Concordant (Halifax: Fernwood Publishing, 1997).
[xi] See Jane L McMillan & Kerry Prosper, “Remobilizing Netukulimk: Indigenous Cultural and Spiritual Connections with Resource Stewardship and Fisheries Management in Atlantic” (2016) 26:4 Reviews in Fish Biology & Fisheries 629 at 639.
[xii] See Trudy Sable and Bernie Francis, The Language of this Land, Mi’kma’ki (Sydney: Cape Breton University Press, 2012).
[xiii] See William Wicken, Mi’kmaq Treaties on Trial: History, Land, and Donald Marshall Jr. (Toronto: University of Toronto Press, 2002).
[xiv] See Jane L McMillan, “Colonial Traditions, Cooptations, and Mi’kmaq Legal Consciousness”(2011)36:1 L & Soc Inquiry J of the Am Bar Found 171 at 179.
[xv] See Virginia Miller, “The Mi’kmaq: A Maritime Woodland Group” in Morrison and Wilson (eds) Native Peoples: The Canadian Experience (Don Mills: Oxford University Press, 2004).
[xvi] See LFS Upton, Micmacs and Colonists: Indian-White Relations in the Maritimes, 1713-1867 (Vancouver: University of British Columbia Press, 1979). Nicholas Denys, The Description and Natural History of the Coasts of North America (Acadia) (Toronto: Champlain Society, 1908).
[xvii] See Kerry L Prosper et al, “Returning to Netukulimk: Mi’kmaq cultural and Spiritual Connections with Resource Stewardship and Self-governance” (2011) 2:4 Intl Indigenous Pol’y J1.
[xviii] See Hoffman, supra note 7; Paul, supra note 7; Denys, supra note 16.
[xix] See Tuma Young, “L’nuwita’simk: A Foundational Worldview for a L’nuwey Justice System” Indigenous Law Journal. Vol 13(1) (2018) 75-102. Kisa’muemkewey refers to the treaty diplomacy processes of the Mi’kmaq. Mawiomi is a formal gathering for establishing and renewing relationships.
[xx] See Marie Battiste (ed), Living Treaties: Narrating Mi’kmaw Treaty Relations (Sydney: Cape Breton University Press, 2016).
[xxi]  3 SCR 456, 177 DLR (4th) 513.
[xxii] See McMillan, Truth and Conviction, supra note 5.
[xxiii] See Marshall, supra note 15. See also, Naiomi Metallic and Constance MacIntosh, “Canada’s actions around the Mi’kmaq fisheries rest on shaky legal ground” Policy Options November 9, 2020. https://policyoptions.irpp.org/magazines/november-2020/canadas-actions-around-the-mikmaq-fisheries-rest-on-shaky-legal-ground/
[xxiv] Anthony Davis, “Demonizing commercial lobster fishers does no good”, The Chronicle Herald (21 October 2020), online: <https://www.thechronicleherald.ca/opinion/local-perspectives/anthony-davis-demonizing-commercial-lobster-fishers-does-no-good-511959/>
[xxv] See Zoe Heaps Tennant, “The New Lobster Wars: Inside the Decades-long East Coast Battle Between Fishers and the Federal Government over Mi’kmaw Treaty Rights” The Walrus (29 Jan 2021), online: The Walrus <https://thewalrus.ca/the-new-lobster-wars/?utm_source=ActiveCampaign&utm_medium=email&utm_content=Canada+s+New+Lobster+Wars&utm_campaign=Nov+15+-+Weekly+newsletter>