Nova Scotia

A potent symbol of First Nations rights sat for years in DFO storage, but now it's home

Twenty years after the Supreme Court's landmark decision on Mi'kmaw fishing rights, the Department of Fisheries and Oceans has returned Donald Marshall Jr.’s nets to his home community of Membertou First Nation on Cape Breton Island.

Donald Marshall's nets will be put on display in his Cape Breton community of Membertou

The eel fishing nets used by Donald Marshall Jr. were in a Department of Fisheries and Oceans storage unit. They have been returned to Membertou First Nation on Cape Breton Island. (Submitted by Jeff Ward)

Jeff Ward was in the middle of a meeting last month in Truro, N.S., when he received a text that made him jump out of his chair.

It was the day before the 20th anniversary of the Supreme Court's landmark Marshall decision on First Nations fishing rights, and the text was from Hubert Nicholas, director of fisheries for Membertou First Nation on Cape Breton Island.

"I was like, 'Oh my God,'" Ward said in an interview. "I couldn't believe what I was seeing. I couldn't believe this existed."

Sent to him was a photo of Donald Marshall Jr.'s eel nets, the same ones seized more than two decades ago when the Mi'kmaw man was charged with fisheries offences, a case that would reshape First Nations fisheries in Atlantic Canada.

The photo showed the nets being taken out of a storage unit at a Department of Fisheries and Oceans office in Antigonish, N.S., to be driven back to the late Marshall's home community of Membertou.

After consulting with the Marshall family and the chief of Membertou, the nets will be displayed at Membertou Heritage Park, a two hectare site that Ward manages and which offers a living history of the people of the community.

Marshall addresses a crowd in Sydney, N.S., on Sept. 28, 2000, after leading a peaceful protest over Indigenous fishing rights. (Andrew Vaughan/The Canadian Press)

On Sept. 17, 1999, the Supreme Court of Canada ruled that Marshall, who had been charged with fishing eels out of season, fishing without a licence and fishing with an illegal net, was justified in doing so under the 1760s Peace and Friendship treaties signed with the British Crown.

The ruling affirmed a two-century-old treaty right allowing Indigenous Peoples to earn a "moderate livelihood" through commercial fishing in Atlantic Canada, although the court later issued a clarification that reinforced the federal government's power to regulate it.

Ward grew up idolizing Marshall, who died in 2009.

Marshall first came to public prominence after being wrongfully convicted of murder in 1971. He spent 11 years in prison and was later exonerated by a royal commission that detailed how he'd been failed by a justice system plagued by incompetence and racist attitudes.

"I had the honour to live on the same street as him," said Ward.

"He stood up for our rights. He honoured the injustice."

Jeff Ward said he 'couldn't believe' he was seeing Marshall's fishing nets, 20 years after the 1999 landmark Supreme Court decision on First Nations fishing rights. (Kwilmu'kw Maw-klusuaqn Negotiation Office)

In 1993, Marshall and a companion landed 463 pounds of eel they had caught from a small outboard motorboat in the waters of Pomquet Harbour in northern Nova Scotia. They sold the catch for $787.10.

Marshall was charged by DFO and prosecuted. It took six years for his case to reach the Supreme Court. But it would be another two decades before a great symbol of the case, Marshall's nets, would see the light of day.

Earlier this year, Sana Kavanagh, a fisheries science liaison co-ordinator at the Confederacy of Mainland Mi'kmaq, was taking a tour of the Antigonish DFO office when she spotted a frame hanging on the wall.

It's strange to me that something that represents such an important part of history was just in a room but not really known to the community.- Sana Kavanagh, of the Confederacy of Mainland Mi'kmaq

In it was a weathered piece of net that once belonged to Marshall.

Soon after the initial awe wore off, she felt the need to tell someone. After a conversation with an employee at the DFO office, she found out there were more nets in storage.

"It's strange to me that something that represents such an important part of history was just in a room but not really known to the community," Kavanagh said.

Ward, who is manager of the Membertou Heritage Park, grew up idolizing Marshall. (Submitted by Jeff Ward)

Kavanagh was concerned the nets hadn't been properly preserved over the last 20 years, so she searched for an archeologist and found Heather MacLeod-Leslie at the Kwilmu'kw Maw-klusuaqn Mi'kmaq Rights Initiative.

"I'm really one small link in a very long chain," said MacLeod-Leslie, referring to the group effort that's gone into getting the nets back. "The nets have been out of water for more than 20 years. Every day, every minute, counts."

Getting the nets wasn't immediate. There were dozens of calls and emails. DFO had to go through its own procedures in order to release them, said Kavanagh.

Months went by and the 20th anniversary commemoration of the Marshall decision was nearing. The Kwilmu'kw Maw-klusuaqn Mi'kmaq Rights Initiative was hosting a conference in Membertou in mid-September of Mi'kmaw leaders to discuss moderate livelihood.

"I thought, 'Geez, wouldn't it be nice if we could have them at the conference?'" Kavanagh said.

It was later that day the nets arrived, a return that was announced during the conference.

Sana Kavanagh with the Confederacy of Mainland Mi’kmaq was the one who spotted a frame hanging on the wall at the DFO's Antigonish, N.S., office. In it was a weathered piece of net that once belonged to Marshall. (Submitted by Sana Kavanagh)

MacLeod-Leslie said they will be removing as much salt as possible from the fibres of the nets, as it will degrade them. They will also be removing dirt and mud.

Once they are in better condition and a formal space has been made at the Membertou Heritage Park, the nets will be on permanent display.

Ward said there isn't an exact date for display, but the community will be notified when there is one.

About the Author

Kaitlyn Swan is a Cree multimedia journalist from Regina. Three years ago she traded the sound of trains for the sound of foghorns. She now lives in Dartmouth, N.S., constantly pumped about water and windy roads, scenery she didn't get often in the Prairies. Reach her on Twitter @SaitlynKwan, or by email kaitlyn.swan@cbc.ca