As set out in our paper, we conclude that the Marshall response initiative would not meet the requirement of the test set out by the Supreme Court of Canada. In particular, the second branch, on which I didn't get to spend as much time as I wanted, requires the government giving a priority to the right, consulting with the indigenous group, but also recognizing that indigenous groups have a right to manage their rights as well, and reflecting that in how priority is given.
On my assessment of the Marshall response initiative, first of all, it would be problematic for the government to say this meets the Marshall decision, when the negotiators were very clear, in negotiating those agreements, that they were not about meeting a moderate livelihood right. So, to make those representations and then 20 years later resile from them does not seem to be in keeping with the honour of the Crown.
In addition to that, even if you could make the argument that they do address this or they could be considered a justified infringement, there's no evidence, really, in terms of priorities, whether or not it met priorities when it was originally negotiated in 2000. The court talks about a proportionate share based on the population of the community as well as the importance of the resource to the indigenous group. So, there is that issue that it may not have met priority, but in 20 years since, there has not been any addition or amendment to those, so we know that they certainly don't meet the current needs of the community in terms of population and need. That would be another thing that would detract from the current Marshall response initiative meeting that. There has to be more.
I believe that licences and questions about seasons are things that have to be worked out through an honest negotiation and discussion. Going to Monsieur Rodon's earlier point about the right to self-government, that's implied also from Marshall II. Marshall II talks about these rights being exercised with communal authority, and that implies a right to govern and manage. The government has to be respectful of that. Yes, they also have the right to manage. I think Monsieur Rodon is right on with respect to this idea of co-management, and it's part of working this out.