Well, there are two reasons.
First of all, immediately post-Marshall we saw the chaos that ensued in Burnt Church, New Brunswick. That's what really drove the clarification in November of that year by the court, and what drives my focus on paragraph 40. It clearly showed at that time that management needed to fall with the minister, and then the current minister moved forward with implementing the right through the communal commercial access program.
The second part is that I agree with you that the government needs to pass the Badger test. The first part of that test is a real consultation process with the Mi'kmaq. For the last 21 years, there has never been a consultation process. That is maybe partly because it wasn't set up right for the Mi'kmaq people, but also because indigenous fishery leaders refused to engage in a consultative process—literally putting a sign on the table that said, “This is not a consultation; it's a negotiation.” I would venture to say that for the government to be able to pass the Badger test, the chiefs within Nova Scotia have to be willing to engage in it.