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Articles

Vol. 16 No. 1 (2024): The Marshall Decisions and New Brunswick Twenty-Five Years Later.

Treaties, Courts, and Government Programs: A Full Look at the Marshall Decisions

  • Michael Nolan
Submitted
September 2, 2024
Published
2024-09-13

Abstract

This study examines the Marshall decisions under a historical institutionalist lens. Specifically, it explores what gave rise to the initial decision, as well as the contemporary government implementation approach, to illuminate what has led to the current situation. It finds that endogenous institutional change through the rise of new judicial precedents set the stage for Marshall and that the government implementation approach has sought to integrate First Nations’ fishing activities within the standing regulatory scheme while failing to engage substantively with their “moderate livelihood” right. The current impasse is a result of First Nations’ discontent with this approach. Given this, the article concludes with some guidance on how to move forward.