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Articles

Vol. 16 No. 1 (2024): The Marshall Decisions and New Brunswick Twenty-Five Years Later.

Can a “Moderate Livelihood” Fishery Reflect the Legal Pluralism of the Treaties of Peace and Friendship?

Submitted
August 31, 2024
Published
2024-09-13

Abstract

Indigenous signatories to the eighteenth-century Peace and Friendship Treaties in Atlantic Canada did not cede their rights to govern themselves. Yet, governments acted as though no Indigenous jurisdiction or law-making authority remained. In the Marshall decisions, the Supreme Court remedied these wrongs somewhat by recognizing a right to pursue a small-scale commercial fishery subject to Crown regulation and limited to the pursuit of a “moderate livelihood.” These limits constrained Indigenous control over the exercise of their treaty rights, and conflicts ensued. This article considers this tension in light of the history of legal pluralism that animated the treaties. It then considers whether, and to what extent, the Marshall framework can currently facilitate legal pluralism, and whether traditions of pluralism, as marked in the treaties, may help inform more substantive visions of treaty interpretation and implementation.