Top court upholds native treaty

In a precedent-setting decision the Supreme Court of Canada upheld a centuries-old treaty between Mi'kmaq natives and the British Crown Friday.

At the heart of the case is a Mi'kmaq man, Donald Marshall Jr., who was convicted of catching and selling 210 kilograms of eels out of season and without a licence.

Marshall argued that an ancient treaty gave him the right to catch and sell fish for commercial purposes.

The Supreme Court's ruling not only acquits Marshall of all charges but it also says that Nova Scotia natives covered under the treaty can fish and hunt without a licence year-round.

The ruling only gives natives the right to fish for their own daily needs or to earn a "moderate livelihood." It does not allow them to set up a commercial fishing venture.

Marshall's defence rested on a 240-year-old treaty his ancestors signed with the British.

In simple terms, it states that the Mi'kmaq will not help or trade with enemies of the king of England -- and that the British will establish truck houses where natives will trade their products.

Lawyers argued that reference establishes the Mi'kmaq's right to catch fish for commercial sale.

Lawyer Bruce Wildsmith worked closely on the case with the Mi'kmaq. He says the Supreme Court decision has implications that go far beyond the right to catch and sell fish.

"It's about natural resource exploitation," Wildsmith told CBC News. "It's about the fishery. It's about trapping. It's about animals. It's about gathering activities. It's about forestry.

"But certainly the forestry and the fishery are the ones that have the most money involved, you might say."

One case that involves aboriginal logging rights is now under way in New Brunswick. Another logging case in Nova Scotia is based on arguments that, over and above treaty rights, the Mi'kmaq have aboriginal rights to use the land and resources.