The Stephen Marshall case will determine if Mi'kmaq treaty rights to fish, hunt and gather include the right to cut timber on Crown land. Expert witnesses called by the Nova Scotia government and the Mi'kmaq have given evidence. Their testimony suggests that the Mi'kmaq were a maritime people who were unlikely to have engaged in logging.

"Unchallenged, this evidence will make it easy for the Court to discount native rights to logging but make some patronizing comment about the special native relationship to marine resources", said Cummins. Fishermen need to be court to protect their interests and to aggressively challenge unsubstantiated opinion evidence on native rights."

The response to the original decision by the fishing community combined with an aggressive return to Court by the West Nova Fishermen's Coalition to seek a stay of judgment and a rehearing resulted in a capitulation by the Court. The expansive rights acknowledged in the first decision shrivelled to a decision about a small-scale commercial fishery and nothing more in Marshall Two; a decision largely ignored in the public pronouncements of the Herb Dhaliwal, the Minister of Fisheries.