This was an application by an intervener, West Nova Fisherman’s Coalition, in the Marshall appeal to have the appeal reheard, with a stay pending appeal.
Although the application was denied, the court issued reasons clarifying portions of its earlier judgment on September 17, 1999. In particular the court said as follows:
(1) The Government of Canada has power to regulate the treaty right to fish through the imposition of licensing requirements. In the Marshall case, the imposition of a licence without any regulations setting out specific criteria for how treaty rights were to be recognized amounted to a prima facie infringement subject to being justified on the basis of the test set out in R. v. Badger,  1 S.C.R. 771 (No justification was offered by the Crown). However, it adopted a passage from R. v. Nikal,  1 S.C.R. 1013 which rejected the contention that a “licence by its very existence is an infringement”.
(2) The Government of Canada has power to regulate the treaty right to fish by the imposition of closed seasons, provided such closures could be justified under the Badger test (the Crown offered not justification for its closures in the Marshall case).
(3) Regulations, such as catch limits, which do no more than reasonably define the treaty right do not impair the exercise of the treaty right and therefore do not have to be justified under the Badger standard of justification.
(4) Unlike an aboriginal right to fish, a treaty right is not an exclusive right which must be satisfied before non treaty rights to the same resource can be recognized.
(5) With respect to the Badger test for justification, the court adopted earlier pronouncements in Gladstone to the effect that the court should also consider recognition of historical reliance upon and participation in the fishery by non-aboriginal groups.