An Empty Shell of a Treaty Promise: R. v. Marshall and the Rights of the Non-Status Indians

• Main Author: Palmater, Pamela
• Format: Text
• Language: unknown
• Published: Schulich Law Scholars 2000
• Subjects: Mi'kmaq; treaties; residence; Indian Act; Canada; case law; aboriginals; Marshall; fire nation; Indigenous; Indian; and Aboriginal Law; First Nations
• Online Access: https://digitalcommons.schulichlaw.dal.ca/dlj/vol23/iss1/3; https://digitalcommons.schulichlaw.dal.ca/cgi/viewcontent.cgi?article=1796&context=dlj

One of the difficult issues presented by R. v. Marshall is that of who is a Mi'kmaq person, or more generally who is entitled to claim to be a beneficiary of the Treaties of 1760-61. This paper examines a number of possible approaches to this matter, including ones based on residence (on or off reserve), descent and the terms of the Indian Act. It notes the deficiencies of existing tests and of Canadian case law that has addressed Aboriginal identity in other contexts. It concludes by noting that the negotiations which must follow in the wake of Marshall present the opportunity for a new, good faith dialogue to establish the rules for ascertaining First Nations membership.