Eel fishing and the Supreme Court of Canada

Damien Bell said he had recently been in Antigonish, where he visited with Mi'kmaq eel fishermen to study their eel heritage. He said he had stayed with St. Francis Xavier University professor Jane McMillan, who works with the local Mi'kmaq people and their fishery.

Interestingly, the Jane McMillan mentioned is Dr. L. Jane McMillan, who is the Canada Research Chair for indigenous peoples and sustainable communities, in the Department of Anthropology at St. FX. Dr. McMillan, who graduated from St. FX and who holds a Masters degree from Dalhousie and a PhD from the University of British Columbia, was appointed to the position in 2006.

Among her fields of interest is the study of treaty implementation in Mi'kmaq communities, where she is concerned with self-determination, natural resource regulation and justice practices in relation to indigenous peoples.

She has also been interested in the eel fishery carried out by the Mi'kmaq people, an interest which led to her being a part of a celebrated Supreme Court case. On Aug. 24, 1993, she was present when a Department of Fisheries and Oceans officer observed her, Donald Marshall Jr. and a man named Peter Martin fishing for eels in Pomquet Harbour, near Antigonish.

An award-winning book written by William C. Wicken, who is on the faculty of York University, describes what happened next. In his book, entitled Mi'kmaq Treaties on Trial: History, Land, and Donald Marshall Junior, Dr. Wicken said the eels Marshall and the others caught were transferred from a small outboard motorboat to a holding pen. They were weighed and loaded on a truck belonging to the South Shore Trading Company in Port Elgin, New Brunswick (the same company that buys the eels from North Queens); Dr. Wicken said the truck was stopped by DFO officers, whereupon Marshall, Martin and McMillan were charged with violating federal fishing regulations. They were also charged with fishing for eels during a closed season, and with selling eels without a license.

The case went to trial, although the charges against McMillan were dropped. In the end, the federal government proceeded against Donald Marshall Jr. alone. Dr. Wicken said Marshall's defence lawyers decided to mount the argument that Marshall had a treaty right to the fishery. The case was an important one, and it wound its way to the Supreme Court of Canada.

In the end, the court produced two controversial decisions. First, it held that the catching and selling of eels by Donald Marshall Jr. was valid under treaties made in the 1700s, and that requiring a license would be an infringement on that treaty right. That raised a storm of controversy, and the Supreme Court then, in a second decision, explained that treaty rights were still subject to Canadian law.

The other email I received was from Alan Wilson, who founded the history department at Trent University and who lives in Northwest Cove, in Lunenburg Co. He said he was fond of eels, and that a friend, local fisherman Arnold Hyson, used to pickle and smoke them for consumption during the winter.

Alan said he had visited the Port Elgin operation, and that the man who runs it knows a great deal about eels. He said he was amazed by the efficiency and by the immaculate cleanliness of his holding system for eels. The eels, Alan said, sell well in Europe.

He went on to describe the sorts of places in the Aspotogan area where the Mi'kmaq used to fish and smoke eels. The Advance story about the eels that produced these responses came out of a talk given at the Mersey Tobeatic Research Institute, in Kempt, by eel fisherman Louis Wamboldt.