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One thing that has been driving me a bit nuts tonight is people selectively quoting from Marshall, and not reading the decision as a whole, or taking into account any of the case law that has developed since then.
First of all, Marshall 2 didn't say the federal government *had* to regulate the treaty right, it said that it *could* for certain limited purposes.
It made clear that beyond defining the treaty right and certain other grounds, government would have to be able to justify any regulations in accordance with the Badger test.
The Badger test has since been restated for proven rights by the Supreme Court in Tsilhqot'in. The infringement justification test is now clearer and stricter. Government has never sough to justify any regulation of the treaty right.
The Court also made clear that any regulations that took the Mi'gmaq catch below levels required to achieve a moderate livelihood would need to be justified.
To be clear, the catch has *never* been set at levels that would allow the Mi'kmaq to earn a moderate livelihood.
To be clear, the catch has *never* been set at levels that would allow the Mi'kmaq to earn a moderate livelihood.
In other words, the right has never been defined or implemented, and the infringement of that right is ongoing and unjustified.
