Recent Fisheries Cases
Justification Analysis on judgement declaring an aboriginal right to fish for any species of fish in the environs of their territories extending nine miles out to sea and to sell fish such fish
Ahousaht Indian Band and Nation v.
Canada (Attorney General) ,
2018 BCSC 218
This case involved a claim by five Nuu-chah-nulth First Nations with territories situated on the west coast of Vancouver Island to a wide range of aboriginal fishing rights over a large geographical area including submerged lands extending 100 nautical miles into the ocean and rivers. After a lengthy trial, in 2009 the trial court: (1) granted a judgement declaring an aboriginal right to fish for any species of fish in the environs of their territories extending nine miles out to sea and to sell fish such fish; (2) found a prima facie infringement of the aboriginal right; and (3) reserved judgement on infringement, giving the parties a two-year hiatus to attempt to negotiate an appropriate level of accommodation.
After one appeal to the British Columbia Court of Appeal (“BCCA”), one order by the Supreme Court of Canada (“SCC”) for a reconsideration by the BCCA, one hearing by the BCCA to reconsider, one denial of leave to appeal to the SCC and numerous attempts at negotiation, in March of 2015 the case finally returned to the Supreme Court Trial division for a continuation of the trial on the issue of justification. The continuation took approximately 150 days of court time with three intervenors participating. The decision is a length of 401 pages.
This case is somewhat unique because in the past all aboriginal fishing rights cases that have gone to the justification stage have been regulatory prosecutions dealing with one species and one impugned regulation under which the charge had been laid (para 60). This case was much broader.
The plaintiffs were in part successful in the sense that they obtained both a number of declarations of unjustified infringements and many of the declarations that they were seeking of priority over commercial and recreational fisheries. However, they were for the most part unsuccessful in obtaining the large allocation increases that they had sought in negotiations. The were also for the most part, unsuccessful in obtaining a declaration that all licences and quota they obtained through PICFI (a government funded program to provide licences to First Nations through voluntary relinquishments of licences from the commercial sector) were not to be considered accommodations. With respect to the justification analysis, the court looked at the evidence of historical participation in fisheries and tended to be much more generous in finding unjustified infringements in the fisheries such as herring, halibut and the chinook fisheries where there was strong evidence of historical participation. The court found no strong evidence of a historical connection for some of the more profitable fisheries such as sablefish, prawn and and to a lesser degree crab. The Court was also less generous in newly developed fisheries that required modern equipment.
As of the 2018-05-29 the case is currently under appeal.
Although this decision is very lengthy, it does contain summaries. A number of these summaries are set out below.
WHAT CAN OR SHOULD BE DONE WITH THE RIGHT AS DECLARED
(251) This court is bound by the Court of Appeal and by the fact that the Supreme Court of Canada did not grant leave on Canada’s second application. The right must stand as it has been declared, and cannot be restated in the manner suggested by Canada. The justification exercise starts from the right as it is presently declared.
(252) The anomalies left from the previous decisions tie this court’s hands to some extent. That said, it ultimately serves no purpose to circumscribe the present process in a way that contravenes the directions of the Supreme Court of Canada in Lax Kw’alaams. According to the declarations, this stage of the trial is about justification. This court must start the justification analysis on the basis of the right as it is presently declared. In its present form, however, the declaration provides no assistance for the next stage of the analysis. To fail to interpret the declared right before beginning a justification analysis would render the process unmanageable and without meaning.
(256) To summarize, this court cannot reword Garson J.’s declaration, but the right she declared must be interpreted by reference to the pleadings and her reasons in order to give structure to the justification analysis. Madam Justice Garson noted that the plaintiffs called no evidence before her on the scale of the right they sought. Although she declared the right, she said she was leaving the scale and scope of the right to be determined at a future time (para. 487). In my view, that does not accord with Lax Kw’alaams, as the Crown is entitled to know exactly what is claimed before the right is declared. In any event, the justification analysis cannot proceed without an understanding of the scope and scale of the right, so the time for that determination is now. 
CONTINUITY AS IT RELATES TO SPECIES SPECIFICITY
(289) As a result, I conclude that I must accept the plaintiffs’ proposition that the present declaration as it stands is the starting point - that is, an analysis of continuity in respect of each individual species cannot result in subtraction of species from the “any species” declaration. It is too late to require the plaintiffs to deal with anything but the “any species” right as declared by Garson J.
(290) Since justification is the only issue before this court and no further evidence can be called on any issue except justification, the only sensible approach to deal with continuity is the one I take from Canada’s submissions, and which had some reflection in the intervenors’ position as well - the importance of the species to the plaintiffs’ ancestral trade and practices as can be gleaned from Garson J.’s judgment, will enter into the accommodation/justification/reconciliation analysis.
(383) Taking the plaintiffs’ own description of their preferred means, Dr. Hall’s letter, Mr. Woods’ evidence, and Dr. Morishima’s views, I conclude that Garson J. found that one indication that the plaintiffs’ right was infringed was because they were prevented from using their preferred means, by which she meant small, low cost boats in community-based localized fisheries involving wide community participation, in a multi-species fishery. It was important to her reasoning that, without licence splitting, such a fleet could not fish commercially. It is an essential characteristic of this fishery, from all of this evidence, including that of Dr. Morishima, that it is a localized small boat fishery with restricted catching power.
(385) I agree that a consideration of preferred means, while useful in determining the scope of the right because it is one indicator of infringement of the right, does not in itself characterize the right. The fact that the plaintiffs’ preferred means of exercising their right is “small, low-cost boats” does not necessarily mean the right attaches only to small, low-cost boats. On the other hand, the fact that many of the plaintiffs have now acquired average-sized trollers with higher catching power since the salmon demonstration fishery began in 2012, and that the use of those trollers has increased and is expected to grow even further, does not change the scope or interpretation of the right into something other than was intended in the judgment from 2009, insofar as that can be determined from a reading of Garson J.’s reasons as a whole.
(386) In summary, I conclude that while the use of small trollers is not excluded from this fishery, “preferred means” does not encompass a troller fleet roughly equivalent to the average-effort troller fleet used in the regular Area G commercial fishery.
DISCUSSION OF INTERPRETATION OF THE EXTENT OF THE RIGHT
(414) Some basic interpretive principles as to the extent of the right emerge:
(1) the right is restricted to the nine-mile CDA;
(2) the right provides for a community-based localized fishery with wide community participation;
(3) the right provides for the plaintiffs to be able to fish using their preferred means, that is, small, low-cost boats with restricted catching power, with wide community participation, within the CDA;
(4) the right is multi-species; therefore it is the totality of the fishery that is relevant, not one particular allocation of a species;
(5) the right is not unrestricted;
(6) the right is not exclusive;
(7) the right is not to an industrial fishery;
(8) the right is not to accumulate wealth; and
(9) the description of a right designed to sustain the community through the harvest and sale of fish was not accepted by the trial judge, and thus the right does not provide a guaranteed level of income, prosperity, or economic viability.
(441) In my view, the only conclusion to be drawn from Garson J.’s reasons as a whole, despite the lack of parameters in the declaration, is that the declared right to fish for any species and to sell that fish is to be interpreted as a small-scale, artisanal, local, multi-species fishery, to be conducted in a nine-mile strip from shore, using small, low-cost boats with limited technology and restricted catching power, and aimed at wide community participation.
STATUTE MILES OR NAUTICAL MILES
(468) Using the customary meaning of measurements at sea, which all parties agree is nautical miles, and in the context of the Supreme Court of Canada’s urging courts to give a liberal approach to the interpretation of aboriginal rights and to interpret ambiguities in favour of aboriginal peoples (Van der Peet at paras. 23 and 24), in my view it is appropriate to use nine nautical miles as the outer limit of the CDA.
THE MECHANICS OF THE JUSTIFICATION ANALYSIS
(867) It must be kept in mind that the court cannot make political decisions or design a fishery, nor is this a mediation where the court can work with the parties to reach a satisfactory arrangement, helping the parties to agree on one or another of their respective approaches. It is not an arbitration where the parties have agreed that the court can set allocations. This is not a commission of inquiry -- although as I have said, at times it seemed to resemble one, despite the caution against such an approach in Lax Kw’alaams. This is a trial in which, according to the declarations made previously, the parties have now come to this court “for a determination of whether the prima facie infringement of the plaintiffs’ aboriginal rights is justified,” in respect of a right that was given no parameters when it was declared and infringements that were not specified, while achieving reconciliation with the rest of Canadian society. That task is difficult enough. The court was not also given the task of designing and supervising a fishery, or of setting or approving allocations arising from a negotiated context. In my view, that is what the approach suggested by Garson J. for the Negotiations, and adopted by the plaintiffs for the litigation, leads to.
(878) In an attempt to move forward, I have set out what I consider to be the correct interpretation of Garson J.’s reasons in respect of the right she declared. I have also set out the areas of infringement I will deal with, in an effort to focus the declaration that the entire scheme infringes the right.
(879) The legislation, regulations, and policies, which were declared in their entirety to be a prima facie infringement of the plaintiffs’ right to fish and sell any species of fish, have remained unchanged since Garson J.’s judgment.
(880) In my view, the justification exercise should involve a consideration of those infringements – that is, it should focus on the legislative and regulatory sections that were pleaded and which give rise to the characteristics of the overall regime that Garson J. referred to, as well as the specific policies to which the plaintiffs take objection.
(881) Following that approach, there are general conclusions on infringement and justification that can be reached, given the nature of the right-based fishery as I have interpreted it from Garson J.’s judgment. Those findings relate to the legislation, regulations, and policies.
ASPECTS OF INFRINGEMENT AND JUSTIFICATION APPLYING TO ALL SPECIES
(904) It is not difficult to see that the existing regime which requires (1) one commercial licence per vessel, (2) all vessels to be registered, (3) licence fees, (4) a restriction on splitting or transferring licences, (5) one licence per species, would be too costly for a small boat multi-species fishery. As well, licence allocations that depend on limited entry based on previous catch is not justified for this fishery. DFO has not attempted to justify these approaches for a small-boat fishery.
(905) Thus I think it is fair to say that Canada does not take the position that the entire regime, found to be a prima facie infringement, can be justified and should remain unchanged. DFO has funded the training and salaries of the T’aaq-wiihak biologists, fishing coordinator, and other staff, including monitors, and has already addressed many aspects of the regime in the salmon demonstration fishery. PICFI licences provided outside the right have always been free of cost. This has continued for the PICFI licences provided since 2009 in the salmon demonstration fishery and in other fisheries. DFO has not required adherence to the regular commercial rules for the plaintiffs’ PICFI salmon licences. DFO has not required registration numbers for the vessels. Licence splitting has been allowed in the salmon demonstration fishery. Expanded bycatch retention for sale has been offered. DFO has allowed the amalgamation of quota onto one licence for the plaintiffs’ use.
(906) The accommodations listed above engage certain aspects of the Fishery (General) Regulations, ss. 22(1), 33(1) and 35(2), and of the Pacific Fishery Regulations, 1993, ss. 19(1) and 22(1), as they apply to the plaintiffs’ right-based fishery. The precise application of those sections will have to be the subject of discussion with counsel.
(907) I conclude that the regulations setting out these requirements are not justified for the plaintiffs’ right-based fishery. While these are decisions DFO has already made, the regulations remain unchanged. Thus the present accommodations and flexibilities are not a permanent solution. It may be that a new regulatory mechanism or some sort of formal protocol will be required for this fishery.
(911) The requirement for quota for groundfish both as bycatch and as an aspect of a small-boat multi-species fishery also seems to be an obvious infringement, but DFO is justified in requiring an appropriate monitoring and catch reporting standard to ensure conservation and sustainability of the fishery. I will discuss this in the context of the groundfish fishery.
(912) In general, as I have mentioned before, I will not be dealing with details of gear restrictions or requirements, specific area restrictions or requirements, and openings and closings. Those things are aspects of daily fisheries management and it would be impossible to anticipate them or pronounce on them. It should be clear that DFO cannot manage the fishery in such a way that unjustifiably infringes on the right, and consultation is required. However, it is still important to keep in mind that, although consultation is essential, details of management are not necessarily part of the right per se unless they infringe on its exercise.
(913) If the effect of a specific in-season management decision is alleged to have infringed the right, it will have to be dealt with individually, through discussion and resolution, or failing that, judicial review. I realize that judicial review may not be timely enough in many cases, but there is simply no way for this court to anticipate and prescribe an approach for these details of seasonal management.
SALMON ALLOCATION POLICY
(917) Canada’s position from the beginning of the Negotiations has been that the plaintiffs have been given a commercial right of unknown scope; that is, the right takes its character from the word “commercial”. However, I agree with the plaintiffs that the right is an aboriginal fishing right. Its essential character is as an aboriginal right. Because it is also a commercial right, Gladstone states clearly that it is not an exclusive right, and does not extinguish the right of public access to the fishery. Nevertheless, as an aboriginal right, it has priority over the other sectors, after FSC and treaty rights (limitations the plaintiffs acknowledge), as long as the other factors in Sparrow are properly balanced.
(925) However, the fact that the declared aboriginal right is to fish and sell fish into the commercial marketplace does not lessen the priority to be accorded to the aboriginal right -- it does not allow Canada to start out on the allocation process by treating the plaintiffs’ fishery as simply another commercial fishery. To accord priority to the recreational fishery over the plaintiffs’ aboriginal commercial fishery is not justified.
(930) Canada’s position is a valid one: that voluntary relinquishment of licences promotes reconciliation, whereas involuntary relinquishment does not. However, accommodation of the plaintiffs’ right cannot be stymied by the necessity to obtain licences only through the mitigation policy if that policy prevents a full realization of their right. This will differ species to species, and I will discuss it in the context of each species.
(931) For instance, the case for not applying the mitigation policy to chinook salmon is strong because the plaintiffs have an extensive historical and modern relationship with that fishery that supports commercial trade. However, this is not necessarily the case for commercial fisheries that have been developed by the commercial sector itself in recent years and for which there is no evidence of ancestral involvement of the plaintiffs in trade of that species, such as the prawn, crab, and sablefish fisheries. In those cases, a policy which relies on voluntary relinquishment of licences might well be justified.
(934) Thus it is not possible to deal generally with this policy. It requires evidence in relation to a specific species. I would not declare the entire mitigation policy to be inoperable as an infringement of the right, but in certain circumstances it may act as an unjustified barrier to accommodation. This will be considered in respect of each species.
DUTY TO CONSULT
(804) Given all these circumstances, I cannot see that it is appropriate or necessary to make a general declaration at this point in respect of a failure of the duty to consult in good faith either under the common law or under the declaration. There were stumbling blocks presented by both sides, and this process is still in progress.
CONSULTATION ON EACH SPECIES
(1045) It is correct that certain species were debated more thoroughly than others. However, I note that extensive discussions have taken place, albeit within the constraints of the limited mandate provided to the Regional staff. I also note DFO’s commitment to ongoing deep consultation. Therefore I do not see this as an issue upon which the justification analysis should stand or fall.
USE OF PICFI
(1068) I will deal with the mitigation policy through which the PICFI inventory is obtained when it comes to each species. In general, I am unable to conclude that the source of the licence negates its effect on accommodation. It is important to note that a PICFI licence is a free licence provided to the plaintiffs. The salmon PICFI licences used by the plaintiffs are not currently constrained by the usual rules, and the findings I have made will affect conditions of other licences provided through PICFI. The relationship of PICFI to the plaintiffs’ fishery will be discussed for individual species.
(1069) The mitigation policy itself cannot act as a bar to appropriate accommodation for some species, as I will discuss below. However, the fact that a licence came through PICFI is not a reason to discount it.
(1070) The plaintiffs have chosen to use some of the licences that have been provided since the 2009 decision outside the CDA. It is important to note that the exemption from some of the regular commercial rules that attach to a PICFI licence only operates when the licence is being fished in the CDA. Exemptions for particular aspects of the rules are subject to the application of the Strategic Framework for Monitoring and Catch Reporting for each species, in consultation with the plaintiffs.
(1267) The following conclusions are specifically applicable to the salmon fishery:
1. the Salmon Allocation Policy insofar as it accords priority to the recreational fishery over plaintiffs’ right-based fishery for chinook is not justified;
2. Canada’s allocations for AABM and ISBM chinook, insofar as they have been set based on giving priority to the recreational fishery pursuant to the Salmon Allocation Policy, are not justified;
3. the use of PICFI to provide salmon licences to the plaintiffs is justified, but the mitigation policy itself, in the event of an inability to allocate sufficient chinook to the plaintiffs through PICFI alone, is not justified;
4. Canada is justified in not allowing a 5,000 piece winter fishery, given the logistics of allocating salmon to Canada under the Pacific Salmon Treaty;
5. Canada’s management scheme for coho (ocean-based and terminal), based on an escapement rate, is justified, but Canada is not justified in according priority in coho to the recreational fishery over the plaintiffs’ right-based fishery;
6. the five-mile corridor to protect coho stocks of concern is not justified for low-effort boats in the right-based fishery;
7. Canada’s management regime for sockeye, pink, and chum is justified, subject to the licencing regime infringements already noted;
8. Canada is justified in amalgamating quota requirements for groundfish bycatch in the salmon demonstration fishery and in conducting a review of monitoring standards pursuant to the Strategic Framework for Catch Reporting and Monitoring; and
9. The court will not make findings on the reasonableness of negotiating positions. Canada is not required to justify refusing to implement the plaintiffs’ proposal, but in any event would be justified in not accepting the salmon allocations set out in the plaintiffs’ plan. However, the allocation for chinook contained in the LTO must be reassessed insofar as it has been set on the basis that the recreational fishery has priority and that licences must be mitigated.
(1484) In my view, the transferability of quota in an integrated fishery is not in itself an infringement of the plaintiffs’ right; it can only be helpful to each individual fisher. If the plaintiffs remain separate from the integrated groundfish fishery, they may find their fishing halted because they have reached a bycatch quota limit and have nowhere to turn to get extra quota, and vice versa for nearby commercial fishers.
(1485) I also accept that individual accountability is important in this fishery; it is a justifiable approach because of the number of vulnerable species that are susceptible to bycatch.
(1486) Because of the nature of this fishery, I accept that integrated management is justified in order to protect the resource for all participants. I conclude that Canada is justified in maintaining its management system based on ITQs for groundfish, and in demanding individual accountability for catch for each species.
(1487) However, the costs of a quota transfer from the regular commercial fishery could, in certain circumstances, act as a barrier to the right-based fishery. This problem can commonly arise with certain species of rockfish, although it can occur with the targeted species as well. Since DFO is providing access to the plaintiffs through PICFI, however, that appears to be something DFO can deal with if a problem arises. I will set out the responsibility of DFO in respect of rockfish shortly, as depletion of rockfish quota has the potential to affect the entire fishery.
(1488) I have concluded earlier in these reasons that this is a multi-species fishery conducted from small, low-cost boats within the CDA. Thus, there are three points on which I find that the application of the present regime to the T’aaq-wiihak groundfish fishery is a continued unjustified infringement.
(1489) The first, as is the case with the salmon fishery, is the requirement of one licence per vessel. Licence and quota splitting among the small-boat fleet must be permitted.
(1490) The second point concerns bycatch retention. A general prohibition against the retention of bycatch for sale is not justified for the plaintiffs’ right-based fishery, but if there are species in dispute, this will have to be resolved on specific facts. At the conclusion of trial, offers respecting retention of bycatch for sale were outstanding. The requirement for individual quotas for each species of bycatch is not justified for the plaintiffs’ right-based fishery. Amalgamated quota, already provided by DFO, is appropriate for this multi-species small boat fishery.
(1491) However, monitoring of individual species is justified in the interests of conservation. How this relates to amalgamated quota and how it can be properly monitored must be the subject of further assessment and consultation.
(1492) Third, Canada is not justified in imposing the cost of licences and quota on the small-boat fishery.
(1493) The above aspects of the regular regime are thus not applicable to the plaintiffs when they are fishing within the CDA, even if the source of the licence is through PICFI. I do not have information on whether or how other PICFI rules might still unduly constrain a particular plaintiff which does not control their PICFI aggregate from exercising their right to fish and sell fish. This must be dealt with on specific facts.
(1494) This leaves the issue of the requirement for EM. I have concluded that this fishery is a small-scale fishery to be conducted in small, low-cost boats, with wide community participation. There is no evidence of how the cost of EM will impede the T’aaq-wiihak fishery, given this scope and scale. The plaintiffs simply assume it will, and the costs of EM are generally acknowledged by DFO witnesses to be a barrier, especially for small boats.
(1495) Adequate monitoring is required to ensure the TAC is not exceeded, and that individual species are adequately accounted for, but given the scale of the fishery, EM may not be required.
(1496) Overall, there is a serious deficit in information before the court in respect of the monitoring of a groundfish fishery within a multi-species fishery, including the cost of such monitoring. The plaintiffs have not had experience in monitoring anything but the salmon demonstration fishery. A groundfish demonstration fishery would have been of help, but was not approved by Ottawa until a time that was too late for trial. At present, DFO has not conducted a risk assessment on the T’aaq-wiihak fishery as it pertains to groundfish. It appeared from the evidence of Dr. Hall and Ms. Murdoch that the parties were making progress on monitoring discussions, but the results of those discussions are not before the court.
(1497) This is a unique multi-species fishery, and DFO has already agreed that dual fishing and bycatch retention can take place in the T’aaq-wiihak salmon fishery, subject to appropriate monitoring. I assume that the small boats will be fishing for a variety of species and for dual purposes on one trip. To try to anticipate adequate monitoring requirements at this stage is pure speculation.
(1498) As I stated above in the context of the salmon fishery, DFO is justified in subjecting this multi-species fishery to the Strategic Framework for Catch Reporting and Monitoring in order to determine an appropriate standard. Consultation with the plaintiffs is required, and should include discussions on how to integrate the T’aaq-wiihak coordinators into the appropriate monitoring regime.
(1499) If this process results in DFO deciding that EM is required, information is needed to determine if cost or cost sharing causes a barrier to the exercise of the right. As mentioned during the discussion of the Negotiations, DFO has already funded the initial costs of EM but there was not much uptake. If a demonstration fishery is necessary, DFO is not justified in imposing the cost of EM, if any, on the small boats while that fishery is being conducted.
(1500) For the reasons I have already articulated in connection with the salmon fishery, recreational priority over halibut is not justifiable. However, whether that actually results in an infringement of the plaintiffs’ right-based fishery would have to be determined on specific facts.
(1501) Finally, I agree that Canada is justified in placing research and assessment allocations ahead of the plaintiffs’ fishery because these measures protect the fishery for all fishers.
(1513) My conclusions on this fishery are set out in the discussion above, in particular at paras. 1484 to 1501. In addition, I have concluded:
(1) The use of PICFI for allocations of halibut, lingcod and dogfish is justified, but the allocations must be predictable and long term.
(2) There is no infringement of a right to a commercial sablefish fishery; if I am wrong on that, any infringement is justified on the basis of conservation;
(3) DFO is justified in setting adequate allocations of rockfish to enable the T’aaq-wiihak groundfish fishery for halibut, lingcod, and dogfish to proceed;
(4) Canada is not justified in setting an allocation for halibut that gives priority to the recreational fishery, but the practical effect of this has to be examined in a specific context, if one arises.
(1609) The plaintiffs have an aboriginal right to sell crab into the commercial market place, and their licences have been provided free of cost. However, priority in respect of a commercial crab fishery is low and mitigated accommodation through PICFI is appropriate.
(1610) Canada’s management regime for crab is justified, subject to the general finding above respecting the licencing system which requires one licence per boat. Provision of access through PICFI, which is without cost to the plaintiffs, is justified.
(1611) The Hesquiaht and Tla-o-qui-aht nations have the potential for a commercial crab fishery in its territory, but have no present access to crab and there is no PICFI inventory available. DFO is not justified in relying only on PICFI to provide these nations with some access to crab, unless that access is not possible due to sea otter predation or other natural causes.
(1612) DFO is justified in determining the effect of many additional small boats catching crab and setting monitoring standards through the Strategic Framework for Catch Reporting and Monitoring, and setting an appropriate monitoring standard after that is completed, in consultation with the plaintiffs. If DFO determines that EM is necessary for the plaintiffs’ small boat fleet when harvesting crab, and if there is a disagreement on cost or cost sharing, and whether cost will interfere with the exercise of the right, this will have to be determined on specific facts.
[1718) This court accepts that the declared right is for all species (except geoduck), and thus it applies to prawn. I conclude that the plaintiffs’ priority for the commercial prawn fishery is low, for the reasons set out above.
(1719) Nonetheless, I conclude that DFO’s present management and regulatory systems with respect to prawn are justified, with the exception of the requirement one licence per boat, and vessel registration.
(1720) The plaintiffs have received, free of cost, several very expensive prawn licences through PICFI, since the declaration of 2009.
(1721) When the priority factors from Gladstone and the justification analysis from Sparrow are applied to this fishery, I conclude that mitigated access, that is, free PICFI access obtained through voluntary relinquishment of commercial licences, is not an infringement of the plaintiffs’ right to fish for and sell prawn.
(1722) The present allocations through PICFI and ATP are appropriate accommodations of the right and are not an infringement of the plaintiffs’ right to trade in prawn into the commercial marketplace.
(1723) DFO is justified in conducting appropriate testing through a demonstration fishery or other means, to determine if an earlier fishery in April is feasible, and if so, how that should be sampled and monitored. The Strategic Framework for Monitoring and Catch Reporting should be applied. This must all be done in consultation with the plaintiffs. If DFO determines that the VSM system is necessary for the plaintiffs’ small boat fleet when harvesting prawn, and if there is a disagreement on cost or cost sharing and whether it causes a barrier to the exercise of the right, this will have to be determined on specific facts.
(1732) DFO submits that, even if there were an infringement, it is justified on the basis of the precautionary approach which ensures conservation, given the early stage of this fishery.
(1733) I agree. Although Garson J. declared the infringements to apply to all species, this developing fishery was not ongoing at that time. I am unable to see that any rights are infringed in respect of gooseneck barnacles. The plaintiffs are not prevented from fishing for gooseneck barnacles. They have an exclusive fishery at present, so there is no question of an infringement of their priority, or of minimal impairment. Consultations are significant and ongoing. There are no impediments to their fishing plan. There are reviews ongoing in order to determine appropriate levels of harvest. Conservation and sustainability support a careful approach, and consultation and cooperation is good.
(1734) In the alternative, if there is an infringement, the cooperative and precautionary approach presently being used is justified on the basis of conservation and maintaining the sustainability of a new fishery.
(1752) Herring differs from some of the other fisheries in that there is no question that the plaintiffs’ involvement in that fishery has been of significant importance to their people and culture, both currently and ancestrally. Mention was made in the Jewitt journal of many huge tubs of herring spawn being collected and used for feasts. While there is no particular evidence of an ancestral commercial trade in herring that might translate to a modern right to a commercial fishery, I have concluded that it is not open to me, given the Court of Appeal’s order, to consider that aspect within a discussion of continuity. The priority of the plaintiffs’ interest in herring is easily asserted by them within this multi-species fishery.
(1753) However, given the lack of a herring fishery in the CDA for the years preceding this stage of the trial, there is not much information before the court. As I have said, the parties’ positions are speculative and hypothetical. I accept DFO’s position, and I do not understand the plaintiffs to disagree, that an analysis of justification for any ongoing infringements of the plaintiffs’ right to fish for and sell herring at this point is premature.
(1759) The plaintiffs have been successful in some parts of some of the declarations they seek, particularly parts of (a), (c), (f,) (h), and potentially (i), although this will require discussion with counsel. They have not been successful in obtaining relief under (b), (d), (e), (g), or (j).
(1760) I have concluded that I should interpret but not redefine the right declared by Garson J. The right continues to apply to “any species”. The plaintiffs have a right to fish and sell any species of fish, in a small scale multi-species fishery conducted from small boats, with wide community participation.
(1761) The plaintiffs in this stage of the trial sought a fishery that is not in line with my interpretation of Garson J.’s reasons, together with very large allocations. Their view of the fishery has expanded considerably from 2009, and they have emphasized that the plans they now present are appropriate accommodation only for the present. They expect to increase their participation in the fishery. They have presented fish plans requesting large allocations of fin fish from the entire WCVI catches. They have taken the position that the justification exercise should be focussed on why Canada has refused to implement their plans. I have found that that is not the appropriate approach to justification.
(1762) Even if I am wrong in that conclusion and instead decided to follow that path, the plans are not complete and there are fundamental aspects of them that I would find Canada justified in refusing to implement. Although it is not necessary to do so, given the conclusions I have reached, I have examined each of the plans from this perspective.
(1763) Canada seeks a further delineation of the right, a finding that certain fisheries are not infringed or have been adequately accommodated, or alternatively, that any infringements are justified. In the further alternative, Canada asks the court to precisely identify any unjustified infringement, declare the offending sections to be inapplicable to the plaintiffs by way of a constitutional exemption under s. 52(1) and suspend the declaration for two years.
(1764) This approach more closely aligns with the one I have followed in these reasons, as I have concentrated on whether the legislation, regulations, and policies that were declared by Madam Justice Garson to be prima facie infringements have ultimately been justified by Canada. The final delineation of the right remains to be articulated in accordance with the conclusion I have reached.
(1768) I have considered the various sections that are engaged in the infringement analysis and have determined that some aspects of the licencing regime that affect the plaintiffs’ multi-species small-boat right are unjustified infringements. I have set out which aspects of the legislative, regulatory and policy scheme are or are not justified for each fishery. I will require the assistance of counsel for a precise articulation of the applicability of each section, as counsel did not approach their arguments that way. I have also set out the principles governing allocations for each species, and have noted the species for which DFO must reassess its approach to allocations.
(1769) I have already alluded to the form of remedy sought by the plaintiffs. They say Canada has not justified its regime, and therefore it is inapplicable to them; they say they are thus entitled to a constitutional exemption from the entire fisheries management scheme. I have already said I do not view that as the appropriate approach for a civil claim, nor is it an acceptable path to reconciliation.
(1770) I refer again to the paragraph from Gladstone that was adopted in Lax Kw’alaams. The goal of the justification exercise is the reconciliation of aboriginal societies with the rest of Canadian society. In any event, the plaintiffs are not entitled to a declaration that they are exempted from the entire regime, as I have discussed in the results of my consideration of each fishery.
(1771) Nevertheless, in my view, the plaintiffs have obtained a large measure of the relief they sought before Garson J. That is, the prima facie infringements she found to exist within the legislative, regulatory and policy regime have in large part not been justified. Accommodations have been offered, some appropriate, some inadequate.
(1772) The plaintiffs have not been as successful in obtaining what I view as significantly expanded claims arising from the nature of the declarations they obtained in 2009.
(1780) Canada seeks a two-year suspension of any order. The plaintiffs suggest one year. Further discussion will have to take place in order to determine the form of order and appropriate timing, and what might be accomplished during such a period. One or two years of further negotiations without the framework of a clear and precise order will be no more successful than the previous years have been.
Crown Liability - Licence to Fish for Capelin - Taking Without Compensation - Misfeasance - Breach of Contract - Interference with Economic Relations
Canada and Hurley,
2017 FC 574
In response to increasing fishing pressure in the capelin fishery, in 2007 Fisheries and Oceans Canada (“DFO”) imposed a management measure that only allowed capelin licence holders to fish in one management area per year. As a result, licence holders in the Newfoundland region who leased their capelin fishing vessels to licence holders in another region, were not permitted to use the same vessels in Newfoundland. The Plaintiff was a commercial fisher residing in Newfoundland who owned a fishing vessel with a number of licences including a licence to fish for capelin. Following his decisions to lease his vessel to another fish harvester in Quebec for the purpose of fishing capelin in Quebec waters in both 2007 and 2008, DFO prohibited him from fishing for capelin in Newfoundland in both 2007 and 2008. The Plaintiff then commenced a Federal Court action against the Government of Canada and the DFO official who implemented this management measure, claiming damages for loss of income. The Federal Court reviewed a number of issues, as set out below, and dismissed the Plaintiff’s claim for the reasons set out below.
WHETHER THERE WAS A TAKING WITHOUT COMPENSATION
As a preliminary issue, the Court had to decide whether the Plaintiff’s capelin licence, once granted, constituted property. In this regard, the evidence at trial was that licences were normally initially issued in the capelin fishery without conditions attached with a provision stating that “the Licence Holder cannot operate any licence without the license conditions for that fishery attached . . .” The conditions were generally then issued later in the year, often just before the season commenced. In accordance with its management measure, DFO did not issue any conditions to the Plaintiff in 2007 and 2008 because he had leased his vessel to a fisher in the Quebec region. After reviewing the evidence, the Court considered jurisprudence on the issue of whether or not a fishing licence is property including Saulnier v. RBC, 2008 SCC 58, and Her Majesty the Queen v. Hache, 2011 FCA 104 and noted that the findings in both Saulnier and Hache, that the rights conferred by fishing licenses constituted property interests, were made only for purposes of certain statutory definitions. The Court also considered 100193 P.E.I. Inc., 2016 FCA 280 and Anglehart v Canada, 2016 FC 1159. After reviewing these cases, the court went on to conclude that the Plaintiff had no property right in the capelin licences issued to him because the licences had been intentionally issued without conditions attached. Given the fact that the Plaintiff had no property interest in the licences in 2007 and 2008, it followed that there was no taking without compensation.
MISFEASANCE IN PUBLIC OFFICE
With respect to this issue, the Court applied the test set out in Odhavji Estate v Woodhouse, 2003 SCC 69. The Plaintiff argued that DFO’s application of the management measures preventing him from harvesting capelin after his vessel has been used in the Quebec fishery was conduct specifically intended to injure him. In this regards, DFO had stated that one of its main goals was to slow down the fishery and prevent gluts of fish arriving at fish processors at the same time. DFO also stated that its goal was to limit additional fishing effort by preventing previously inactive licences from becoming active. The accused argued that the goal of avoiding gluts was not advanced by preventing him from leasing his boat for use in the Quebec fishery because the fisheries were not held at the same time. The Court rejected this line of argument and stated that “even if I were to accept that the application of DFO’s policy measures in these particular circumstances was not necessary to advance DFO’s policy objectives, it does not mean the policy or application is unlawful” (para. 51). After citing Comeau’s Sea Foods Limited v. Canada,  1 SCR 12 and referring to the broad discretion that the Minister has to manage the fishery in the public interest, the Court concluded that “[t]hese measures took into account the recent history of that fishery and the input of interested stakeholders. I find no basis to conclude that these measures or their application to Mr. Gillett were arbitrary or based on irrelevant considerations or bad faith (para 52).
The court also addressed several other arguments of the Plaintiff with respect to misfeasance and rejected them (paras. 53-68).
BREACH OF CONTRACT
With respect to this issue, the Plaintiff argued that his application for a licence renewal was an offer, the $30 licence fees was consideration and the issuance of the licence was acceptance. However, the Court rejected this argument on the basis of the evidence that the licence was issued without attaching conditions and that no conditions were provided until after the season was over.
INTERFERENCE WITH ECONOMIC RELATIONS
With respect to this issue, the Plaintiff argued that DFO’s chief resource management officer for the applicable area had tortuously interfered with his economic relationship with DFO. However, the Court rejected this argument on the basis that it found no illegal or unlawful act by the resource manager and there was no evidence that he acted with intent to cause loss to the Plaintiff.
Posting of Security for Release of Vessels Seized under Fisheries Act
McNeill Fishing Ltd.,
(31 May 2017) Prince Rupert Prov. Ct. No. 29164-1
Section 71(2) of the Fisheries Act provides that “. . . a court may order any . . . thing seized under this Act to be returned to the person from whom it was seized if security is given to Her Majesty in a form and amount satisfactory to the Minister.” In this case, the owner of two seized prawn fishing vessels brought an application in B.C. Provincial Court for return of its vessels upon the posting of security. In support of its application it filed copies of valuation surveys of the fishing vessels. However, the Crown refused to “entertain any form or amount of security” for release of the vessels. It submitted the proper remedy for the applicant was an action in the Supreme Court based upon replevin or a Charter remedy. Unfortunately for the applicant, the court ruled that as a court of statutory jurisdiction, it could not substitute its view of what would be an acceptable form and amount of security in the absence of any suggestion by the Minister. The Court did, however, make some non-binding (obiter dictum) comments. It said:
The court has a discretion which should be exercised on judicial grounds. If the Minister can persuade the court that the circumstances are such that it would truly bring the administration of justice into disrepute, then such an order would not be made, but it is for the court to make that determination, not the Minister. Otherwise, there is no need for the court to ever be involved. It is only the Minister who can make the decision (para. 23).
It is my view that, to interpret this section in the manner the Crown seeks . . . would be in violation of the Charter. It permits the Minister to act arbitrarily for items, which may be lawfully seized for a very minor offence, to be withheld without any recourse. This clearly is not the way this section is intended to act (para. 24).
1) See the subsequent companion B.C. Supreme Court case of McNeill Fishing Ltd. v. Canada, 2017 BCSC 1598 where the Court dismissed McNeill Fishing Ltd.’s interlocutory application for replevin on the grounds that the applicant had not established irreparable harm because its loss of profits could be compensated by damages.
2) Based upon recommendations from the Canadian Maritime Law Association, when the Government of Canada tabled Bill C-32 in 2007 for a broad amendment of the Fisheries Act, it proposed amendments to s. 71(2) that would have given the court the authority to determine the security to be posted for release. Unfortunately, this Bill died on the order paper.
Judicial Review/Crown Liability
Canada (Attorney General),
2017 FC 459
This case involved judicial review of a decision by the Minister of Fisheries (based upon a recommendation of the Atlantic Fisheries Appeal Board) to deny the Applicant’s appeal in which he sought an exemption from the Preserving the Independence of the Inshore Fleet in Canada’s Atlantic Fisheries policy (“PIIFCAF Policy” or Policy).
In 2007 the Minister of Fisheries introduced the PIIFCAF Policy for the purpose of strengthening the Atlantic Coast Owner-Operator and Fleet Separation Policies. This Policy, required in-shore fishers to sign declarations stating whether they were parties to a controlling agreement by a third party such as a fish processor. If they were party to a controlling agreement, they had until April 12, 2014 to be free of such an agreement, failing which their licences would not be renewed.
The Applicant was party to a controlling agreement by two fish processors. He was advised by DFO in writing that since he was subject to a controlling agreement, that after April 2014 he would not be eligible to receive a new or replacement licence until the controlling agreement was terminated. He was also told he had a right of appeal. In 2015, the Applicant appealed the Minister’s decision to an Appeal Board. The Appeal Board asked the Applicant to put a dollar value on his claimed financial hardship, but he neglected to do so. The Appeal Board subsequently recommended that the appeal be denied on the grounds that the Applicant had not demonstrated a valid extenuating circumstance and that he had been treated fairly. After reviewing this recommendation, the Minister rejected the Applicant’s appeal in a letter that gave no specific reasons for the denial other than a reference to the report of the Atlantic Fisheries Licence Appeal Board and “[h]aving considered all relevant information” (para. 19).
STANDARD OF REVIEW
The Court ruled that the standard of review was reasonableness. It stated that “reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process, but also whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” It also noted that issues of procedural fairness are reviewed on the correctness standard (para 26).
Issue 1: WHICH DECISIONS ARE SUBJECT TO JUDICIAL REVIEW?
The Court ruled that it was only the decision of the Minister, not the decision of the Appeal Board, that was subject to judicial review.
Issue 2: WAS THE MINISTER’S DECISION BASED ON RELEVANT CIRCUMSTANCES
The Applicant argued that in pith and substance the PIIFCAF Policy was social and economic legislation unrelated to protecting the fishery. Based upon the assumption that this was true, it was argued that to base a discretionary decision upon a policy that would be ultra virus Parliament if it were enacted as legislation, would be an irrelevant consideration. In rejecting this argument, the Court did a thorough analysis of the case law involving the division of powers over fisheries matters and concluded that the federal Parliament’s powers over fisheries are broad, are not limited to conservation, and include management of fisheries for social, environmental and other grounds (para. 51). The Court pointed out that the Minister strongly believed that an independent inshore commercial fishing fleet was an important element of an economically prosperous Atlantic Canada. Accordingly, the Court held that such social and economic factors were permissible factors for the Minister to consider. The Court also noted that since the PIIFCAF Policy was a policy, it could not be subject to a division of powers challenge (para. 56-63). In the alternative, the Court also ruled that even if the Applicant’s challenge had been to a S.7 discretionary decision as opposed to a policy, the challenge would not have stood up because the Policy was in pith a substance a valid exercise of federal fisheries power designed to prevent fish processing corporations from exerting licence control in the inshore fishing industry so as to protect the economy of coastal communities who depend upon the resource (paras. 73-4).
Issue 3: DID THE MINISTER REASONABLY EXERCISE, OR DID HE FETTER HIS DISCRETION?
With respect to this issue, the Applicant raised three arguments. His first argument was that the Policy contained mandatory requirements that fettered the Minister’s discretion. In rejecting this argument, the Court found as a fact that the Policy indicated that it only guided the Minister but was not binding on the Minister. The Court also held that it was not improper to stipulate what information must be provided by licence holders in order to assess their eligibility.
Secondly, the Applicant argued that the failure of the Policy to provide for individual harvester exemptions fettered the Minister’s discretion. However, in rejecting this argument the Court stated the Minister was free to state general requirements in his Policy. The Court also noted that the Policy provided for an appeal process, which the Applicant was advised of. At the Applicant’s appeal before the Appeal Board the Board asked him to put a dollar value on his claimed financial hardship and he had not done so. The Applicant had also not lead any evidence that it had attempted to mitigate the hardship by approaching a Recognized Financial Institution for a loan (para. 118). Upon cross examination on his affidavit the Applicant revealed that he made no attempt to terminate his controlling agreement with the fish processors and that his request for an exemption to the Policy was made at the request of the fish processors and conducted with their assistance.
Thirdly, the Applicant argued that the Minister’s decision letter failed to acknowledge the source and breadth of his broad discretion under s. 7 of the Fisheries Act or give adequate reasons for the rejection of the appeal. The Court accepted this argument, and concluded that the Minister “fettered his discretion by not also considering that it was open to him to afford the relief sought other than by way of the PIIFCAF Policy and the appeal process” (para. 135). This was because the record before the Minister contained no reference to s. 7 of the Fisheries Act, other that a reference in the letter from the Applicant’s counsel and the “Ministers denial letter failed to acknowledge the source and breadth of his broad discretion under section 7 of the Fisheries Act . . . “ (para. 135).
Issue 4: DID THE MINISTER HAVE AN OPEN MIND
The applicable test to determine whether an administrative decision-maker is biased will vary depending on the decision-making body (para. 142). Since the decision of the Minister of Fisheries being challenged was highly discretionary, was not constrained by statute and was based upon policy considerations which took the public interest into account, the applicable standard applied was whether the Minister had a closed mind. The onus was on the Applicant to show that there was prejudgement to the extent that any representations at variance with the Minister’s view would be futile (para. 146). The Court ruled that the Applicant had not met this burden for the following reasons:
(1) Previous statements cannot be used to fetter a Minister’s discretion;
(2) The PIIFCAF Policy explicitly stated that it was not binding on the Minister in making decisions regarding licences;
(3) Although first level of appeal was skipped, the appeal policy allowed for doing so; and
(4) The Appeal Board did not find any extenuation circumstances and found that the Applicant had been treated fairly.
Issue 5: The APPROPRIATE REMEDY
The Court reviewed jurisprudence that suggested at the remedial stage courts should consider whether quashing an administrative decision-maker’s decision and remitting it to the administrative decision-maker for re-determination would serve any practical or legal purpose. In addressing this issue, the court found that “the objective of the PIIFCAF Policy was to address the deliberate circumvention, by way of the proliferation of trust agreements (controlling agreements), of the Owner-Operator and Fleet Separation Policies” (para. 156). Given the failure of the Applicant to terminate the controlling agreement or provide any financial information to the Appeal Board, it was clearly open to the Minister to refuse to issue the licences to the Applicant. Accordingly, despite the finding that the Minister had fettered his discretion, the Court refused to quash the decision and send it back to the Minister for reconsideration.
Offences – Due Diligence - Fisheries Act s. 78.4 (rebuttable presumption that offence committed with knowledge or consent of licence holder) – Whether due diligence component -
2017 PESC 11
Section 78.4 of the Fisheries Act provides that: “In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by a person in respect of any matter relating to any operations under a lease or licence issued to the accused pursuant to this Act or the regulations, whether or not the person is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused [emphasis added]”. The issue in this case was whether this reverse onus provision imported a due diligence requirement.
After reviewing the relevant authorities, including authorities regarding the standard of review, the court concluded that s. 78.4 does import a due diligence requirement and upheld the conviction of the summary conviction trial court.
Although not entirely clear from the reasons, it appears that the required due diligence was with respect to the training and supervision of the crew.
Offences Misc. - Fishing for Lobster During a Closed Time - Need for Expert Evidence re High-tech Aircraft Surveillance Equipment - Sentencing - Punishments that Differ Greatly Depending upon Area (S. 15 Charter)
2017 PESC 6
This case involved a charge of fishing for lobster in a closed area. The accused’s fishing vessel was observed by a surveillance aircraft using (1) a state of the art camera, (2) a very high-powered telescope, (3) a software program that enhanced the live video, (4) radar assisted/integrated info software, (5) forward looking infrared radar, and (6) a 6,000,000 candlepower flash. The videos of this evidence were projected onto video displays, in ways that were not explained by the fisheries officer and other witnesses who gave evidence. According to the audio, the fisheries officer in the plane when viewing the video stated, “these are lobster traps”. From the trial judges view point, the high-tech video taken from miles away at the darkest part of the night was a blurry mess.
The fisheries office who introduced the high-tech evidence was not qualified as an expert witness and no other person was qualified as an expert.
At trial, the trial court convicted the accused based upon the high-tech evidence and imposed a sanction that prevented him from fishing the first 96 hours of he next lobster season in Southern Prince Edward Island. In the fishing area in Northern Prince Edward Island, a 96 hour no fishing sanction at the beginning of the season was not a significant penalty because the waters are cold at the beginning of the season and the fishing does not get good until later in the season. However, in the fishing area in southern Prince Edward Island, where the accused was licensed to fish, the situation was the opposite. The fishing was very good at the beginning of the season and poor later in the season.
Upon hearing a summary conviction appeal. The Court set aside the conviction. After a discussion of the rules regarding expert evidence and when such evidence it necessary, the appeal court ruled that the trial court should not have admitted the high-tech evidence without a qualified expert.
Although not necessary for its decision, the Court suggested that the sentence did not satisfy the requirements of section 15 of the Charter because the punishment differed greatly depending upon which region of Prince Edward Island the fish harvester came from.
Offences - Due Diligence - salmon gill netting - need to avoid killing incidental catch of endangered chum salmon
Dudoward et al. ,
Prince Rupert File No. 29002-2-C
Four vessel operators were charged with gill net fishing for salmon in a closed area after drifting from an open area into a closed area. The open area was open to fishing for a number of different species of salmon but closed for chum salmon because there was a run of chum salmon in the vicinity that was endangered. The commercial fish harvesters in the area had been warned that if they wanted to continue fishing the area they would have to take great care to release any incidentally caught chum without injuring them. This involved carefully picking them out of their nets without injuring them and, if necessary, resuscitating them in a revival tank. On the day the fish harvesters were charged they had made three previous sets whereby they set their nets 3/4 of a mile from the area boundary and drifted with tide and wind until they were 1/4 mile from the boundary. At that point, they started pulling in their nets and were able to pick their nets before they reached the boundary.
On the fourth set, when they pulled their nets 1/4 of a mile from the boundary, the number of chum and other salmon in their nets had multiplied dramatically. If they had not caught any endangered chum, they could have wrapped their net with fish attached around their drum and sorted it later on in the open area. However, because they had a large number of endangered chum in their net that option was not available because it would killed the chum.
The fact that all four fisherman found themselves in the same predicament added credibility to their assertions that this offence could not reasonably have been avoided. Accordingly, the Court allowed a due diligence defence and acquitted them all.
Offences - Due Diligence - Fishing Without a Designated Operator
2016 CanLii 81499
This case involved a crab fishing vessel that was required under its licence to have the licence holder or a designated operator on board the fishing vessel at all times when fishing and offloading. When the licence holder could not be on board the fishing vessel because of health reasons, she and her son attempted to have a new crew member designated by the Department of Fisheries ("DFO") as a designated operator. The licence holder was advised by DFO that before the new crew member could be designated as the operator, he would have to be registered with the Professional Fish Harvesters Certification Board. The new crew member filed an application with the Association and then proceeded to go fishing approximately one month later without having received a reply. Shortly thereafter, he and the licence holder’s son were caught fishing with a substantial amount of crab on board and the son was charged for fishing without authorization and possession of illegal fish.
At trial the son admitted committing the offence, but argued due diligence on the grounds that reasonable attempts had been made to have a designated operator appointed and no one had advised him that he new crew member had not been approved.
The court summarized the law of due diligence as follows:
1. the onus of establishing the defence rests with the accused;
2. the applicable standard of proof in one of a balance of probabilities;
3.the accused must establish that she or he took all reasonable care to avoid committing the actus reus of the offence;
4. an objective standard is applied in which the acts or conduct of the accused are assessed against that of a reasonable person in similar circumstances;
5. the acts or conduct said to illustrate due diligence must relate to the external elements of the specific offence that is charged. Acting reasonably in the abstract or taking care in a general sense will not suffice;
6. due diligence does not require "superhuman efforts" or exposing oneself to unreasonable danger. The defence requires "a high standard of awareness and decisive, prompt, and continuing action"; and
7. the Court must be careful not to set a standard of care in the context of a particular offence so high so as to effectively create an absolute liability offence or to effectively prohibit individuals from participating in the regulated activity.
After reviewing all of the evidence, the court rejected the due diligence defence because the son neglected follow up and see if the new crew member had been registered with the Professional Fish Harvesters Certification Board and designated by DFO as an operator before he went fishing with him.
Offences – Misc. – Def’n of “Fishing”
McKinnell Fishing Ltd. ,
2016 BCCA 472
This case was summarized by the Court of Appeal as follows:
"The appellant crabbing company was found guilty of “fishing for” crabs in closed waters, contrary to the Fisheries Act, R.S.C. 1985, c. F 14. It argues that the phrase “fishing for” in s. 2 of the Fisheries Act does not include the act of raising crab traps from the ocean floor and into the vessel, and thus the act of fishing ended the moment the traps were lifted. HELD: appeal dismissed. The summary conviction appeal judge applied the correct definition of “fishing” set out in Gerring v. The Queen. The act of raising the traps into the vessel is part of the continuous act of “fishing for” as set out in the Fisheries Act."
Editor’s note: This case was a valiant attempt to restrict the very broad definition of “fishing” contained in Gerring v.The Queen. As a result, crab harvesters who place their traps close to a fishing area boundary, can be found guilty of fishing in a closed area if the tide or wind pushes their vessel over the boundary while they are in the process of lifting the traps off of the bottom. This case could also be used to charge a fish harvester for travelling through a closed area with fishing gear on deck while travelling to an open area to fish.
At paragraph three, the Court of Appeal refers to the offence as being an absolute liability offence. Although the case did not turn on this point, this is an obvious error. This was a strict liability offence (see R. v. Saulte Ste. Marie  2 S.C.R. 1299 (SCC)).
Judicial Review - Competition for Access to Scallop Area - Whether Minister Exceeded Jurisdiction my Using Licence Conditions
Canada (Attorney General),
2016 FCA 288
This case involved in group of Scallop Fishers in the Bay of Fundy area who challenged a decision of the Minister of Fisheries of issue licences to another group with licence conditions that allowed them to fish in area SFA 29 West. After setting out the discretionary authority of the Minister, the Motions Court denied the motion on the grounds that the impugned licences, independent of the attached conditions included area SFA 29 West. Upon appeal, this decision was upheld.
Judicial Review and Crown Liability – Unjust Enrichment – Expropriation Without Compensation - Breach of Contract – Misfeasance of Public Office
Practice – Expropriation Without Compensation Claims May Be Dismissed on Summary Judgement
Her Majesty the Queen v.
. 100193 P.E.I. Inc. et al.,
2016 FCA 280
This was an appeal and cross appeal from a decision of the Federal Court (2015 FC 932) allowing in part the Appellant/Defendant’s motion for summary judgement to dismiss the Respondent/Plaintiffs’ claims. In their action, the Plaintiffs’ claim included the following:
1) Expropriation without compensation;
2) Breach of contract;
3) Unjust enrichment; and
4) Misfeasance of Public office.
The motions Court granted summary judgement dismissing the claim for breach of contract and unjust enrichment. It then dismissed the remainder of the application allowing the claims for unjust enrichment, expropriation without compensation and misfeasance to go to trial.
Some of the background to this case is described in the case of Arsenault v. Canada, 2008 FC 299 (digested on this webpage). The Plaintiffs were a group of approximately 30 snow crab fish harvesters residing in Prince Edward Island. They were licenced to fish in area 12 in the early 1990’s and were referred to as “traditional inshore fishermen”. They had some conflicts with a group of 130 “traditional mid-shore fishermen” from outside P.E.I. who were licenced to fish in areas 25 and 26. In 1993 the competitive shotgun type fishery for snow crab was replaced by an individual quota system. It was alleged by the Plaintiffs that at that time that they agreed to give up the competitive fishery, they also agreed to finance some research and conservation measures.
In 1997, the inshore fish harvesters were integrated into areas 25 and 26 with the mid-shore fish harvesters and agreed to a five-year management plan that involved them making significant contributions of funds for Department of Fisheries (“DFO”) management activities.
After the Marshall decision in 1999, DFO purchased two snow crab licences from two members of the inshore fishery pursuant to a government funded “buy back” program.
In 2003 DFO approved a three-year management plan which was the source of the Plaintiff’s complaints. They alleged that the plan reduced the Plaintiff’s share of the total allowable catch (“TAC”) in the following three ways: (a) integrating the inshore fishers into areas 25 and 26; (b) allocating 15.8% of the TAC to First Nations when only 5% of the TAC was freed up by the buy back; and (c) reserving an additional 15% of the TAC for new entrants. An additional complaint arose from DFO’s setting aside part of the snow crab resource between 2003 and 2006 to finance research activities. This practice was declared illegal by the Laroque decision in 2006 (2006 FCA 237.
Upon appeal, the Court of Appeal held that:
1) The Plaintiffs’ claims based upon expropriation without compensation and unjust enrichment should have also been dismissed by summary judgement;
2)The cross appeal was dismissed;and
3)The claim for misfeasance was allowed to continue to trial.
With respect to the claim for expropriation without compensation, the court held there was no genuine issue to go to trial because at law the case could not succeed. The court said that:
The law does not recognize a proprietary interest on the part of fishers in uncaught fish or the fishery, nor does the law recognize a right to compensation for a reduction in quota: Kimoto v. Canada (Attorney General), 2011 FCA 291 (CanLII), 426 N.R. 69
The Court also declined to follow a previous trial court decision of the Federal Court that declined to dismiss an expropriation without compensation case on summary judgement.
With respect to the unjust enrichment claim, given the Court of Appeal’s finding that there was no expropriation without compensation, the Court held that there could be no unjust enrichment because the Plaintiffs did not suffer a deprivation.
With respect to the misfeasance claim, the Court adopted the following test from Odhavji Estate v. Woodhouse, 2003 SCC 69:
"[T]he tort of misfeasance in public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law."
In allowing the misfeasance claim to continue to trial, the court noted that “the existence of a proprietary interest forms no part of the elements of the tort and that damages for the tort can legally embrace economic matters beyond proprietary interests (para 26)". In allowing this claim to proceed to trial the court limited the claim to DFO using the TAC to finance its activities and obligations it believed it had towards other groups of fish harvesters.
With respect to the counterclaim, the Court of Appeal upheld the Trial Court’s finding that the Plaintiffs did not produce evidence to support a finding that there was a contract that the TAC would only be freed upon for First Nations out of buy back quota. The Court found that the Minister’s statement only amounted to statements of policy objectives.
The Court of Appeal closed by commenting on the palpable and overriding error test as follows:
"One must keep front of mind that palpable and overriding error is a high standard: “[w]hen arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing,” but rather “[t]he entire tree must fall.” See Benhaim v. St Germain, 2016 SCC 48 (CanLII) at para. 38, citing Canada v. South Yukon Forest Corporation"
Crown Liability - Misfeasance - Reduction of Quota
2016 FC 1159
This cased involved a complaint by one group of snow crab fish harvesters who objected to the Minister reducing the quota in their area by 35 per cent. After rejecting a number of grounds of review, the court imposed liability based upon the tort of misfeasance in public office. In doing so, the court remarked that unlike a number of other grounds for review of a Minister’s decision regarding the management of a fishery, this ground did not require the plaintiffs to demonstrate that they owned the individual quotas associated with their licences. In finding for the plaintiffs the Court said as follows:
The reduction [of the total allowable catch] without justification, these attempts to find an explanation ex post facto, and the Minister’s reaction regarding questions he was asked by journalists after the 2003 fishing plan was released have satisfied me that the only reason the Minister reduced the TAC by 4,289 mt in 2003 was to force traditional crabbers to resume negotiations that could lead to a joint project agreement [for financing the fishery]. I am of the opinion that, in so doing, the Minister acted in bad faith, particularly in the context of all of the changes he chose to make to DFO policies that same year. He exercised his discretion by relying on considerations that are irrelevant, capricious or foreign to the purpose of the statute (para. 252).
Judicial Review/Crown Liability - Practise - Costs in Public Interest Litigation
Calwell Fishing Ltd. v.
2016 FC 1140
This case was brought by a group of fish packer owners whose businesses declined to the point where they were no longer economically viable. They sought a declaration based upon the common law doctrine of "taking". They argued that the state cannot take property without compensation except where such taking is supported by clear unambiguous statutory language. They submitted that a series of regulatory changes from the early 1980s up to the 2000s, including the buy-back of licences, fleet reduction, and commencement and enhancement of the Aboriginal Fisheries strategy eliminated available work for their packers. The Plaintiffs noted that during the period in question a number of fishing vessel owners and licence holders received compensation from the Government and question why no such compensation was offered to packers. In a decision rendered 11 March 2016 (2016 FC 312) (digested on this webpage) the Federal Court concluded that the Plaintiffs had not established "on a balance of probabilities, that the loss of their packing business was a direct result of government action."
In a subsequent hearing to determine costs, the Plaintiffs were successful in obtaining an order that each party bear their own costs on the following basis:
1)Rule 400(3) of the Federal Court Rules provides that the Court may consider whether the public interest in having a proceeding justifies a particular award in costs.
2)A losing party who raises a serous legal issue of public importance will not necessarily bear the other party’s costs;
3)The case explored the constraints on powers of the Minister of Fisheries and Oceans, as a steward of the fisheries, which requires a balancing of different public and private interests;
4)The impact of such issues extended beyond the parties to the action;
5)The issues were not cut and dry;
6)The Plaintiff’s did not have a defined pecuniary interest in the outcome, apart from reliance upon the Crown to do the honourable thing if they obtained their declaration;
7)Altruism and having little to gain financially work better than the pecuniary interest test;
8)The question of whether public access to a common property resource is “property” that can be subject to a regulatory taking is an issue that has not been previously resolved by a Court, and therefore the action was novel.
Offences - Undersize Whelk - Forfeiture of Catch
2016 CanLII 25433
This case involved a fish harvester who plead guilty to catching undersize whelk. After a general review of the principals of sentencing for fisheries matters, the court dealt with the issue of forfeiture of the catch. In doing so it said "[T]he amount of the fine must be set in conjunction with the issue of forfeiture. The fact there has been a mandatory forfeiture of a significant quantity of fish, is a factor which leads courts to significantly reduce the amount of a fine imposed under s. 78: See R. v. Cox, cited above. This requires that the forfeiture issue be considered before determining the amount of the fine" (para. 42). The court then applied this principal by reducing the fine it would have imposed because it forfeited the proceeds of sale of the seized whelk in the amount of $12,180.48.
The court also enunciated the principal that "a fine must be significant enough to be more than the cost of doing business".
Practice - Bankruptcy and insolvency - Is a reference to a “fishing licence”, in a financing statement registered pursuant to the Nova Scotia Personal Property Security Act, sufficient to capture both the licence and the quota.
D'Eon Fisheries Ltd. (Re) v.
2016 NSCA 30
This case involved a borrower that granted a number of Personal Property Security Act ("PPSA") interests under the Nova Scotia PPSA Act over its enterprise allocation of silver hake. Two of the PPSA security holders had registered their security interests as follows:
"all of the debtor’s rights, title and interest of every kind which the debtor has in, to or under a fishing license, more particularly described as ground fish license number 304715 issued by the Minister of Fisheries and Oceans… and any books, records or documents related to such license…"
These registrations were held by the trustee in bankruptcy to be invalid because the financing statements did not include a description of the quota by item or kind and consequently were not perfected as against third parties.
Upon appeal to the Nova Scotia Supreme Court, the appellants argued that since a quota is usually transferred along with a license in the event of an application for transfer of the license, a financing statement describing the collateral as "all rights, title and interest of ever kind into and under a fishing license" should be interpreted to include a quota that is automatically transferred with the license. However, this argument was rejected and the decision of the trustee in bankruptcy was upheld for the following reasons:
1)The hake fishery in question was a quota based fishery where quota and licenses were administered separately by the Department of Fisheries;
2) There was a separate commercial market for hake licenses and quotas;
3) The hake quota was transferable independently of the license to which it has been assigned;
4) Commercial practice did not support the applicant's arguments as two of the applicant's other creditors separately described the license and quota in their financing statements;
5 It was "arguably 'unreasonable and unrealistic' to expect an interested party to ignore the specific word 'license' and to infer there may be additional collateral - such as a fishing quota - subject to the security agreement" (para 47);
6) There was no reference to the quota by item or kind or by reference to intangibles; and
7) The description was seriously misleading in that it would give not reason for a reasonable searcher to conclude that quota was included (para 58).
Upon Appeal, the decision was reversed and the validity of the security upheld based upon the following facts:
1)The applicable regulations do not use the word "quota";
2)There can be no participation in a fishery without a licence;
3)The regulations provide that licences can specify conditions;
4)Conditions can specify quantity and species that can be fished pursuant to the licence;
5)Quota is attached as a condition of the licence;
6)When the trustee in bankruptcy transferred the licence, no document other than the one transfer document was required to transfer both the licence and quota.
Based upon these facts the court concluded "[b]ecause the quota is attached as a condition of D'Eon's licence, I am satisfied that reference to the licence in the financing statement as registered was sufficient to include the quota as it existed at the time the security was given."
Editor's Note: In this particular case for the licence in question, one transfer form transferred all of the quota when the licence transferred. However, one should not assume that the transfer rules are the same for all licences.
Offences - Failure to release incidental catch of halibut - failure to accurately complete log - misleading statements to fisheries officer - Offences committed by employees
2016 CanLII 12896 (NL PC)
This is a fairly straightforward case where the accused was found guilty of all of the charges.
Judicial Review/Crown Liability - Declaratory Relief - Did the manner in which Fisheries and Oceans, Canada exercised its regulatory power amount to a "taking".
Calwell Fishing Ltd. v.
2016 FC 312
This case was brought by a group of fish packer owners whose businesses declined to the point where they were no longer economically viable. They sought a declaration based upon the common law doctrine of "taking". They argued that the state cannot take property without compensation except where such taking is supported by clear unambiguous statutory language. They submitted that a series of regulatory changes from the early 1980s up to the 2000s, including the buy-back of licences, fleet reduction, and commencement and enhancement of the Aboriginal Fisheries strategy eliminated available work for their packers. The Plaintiffs noted that during the period in question a number of fishing vessel owners and licence holders received compensation from the Government and question why no such compensation was offered to packers.
The court identified the elements of a "taking" to be as follows:
1)The plaintiff's property was taken by the defendant;
2) the same property was acquired by the defendant; and
3) the Defendant did not meet its duty to compensate.
With respect to the first element, the plaintiff based its argument largely upon the public right to access to fish as guaranteed by the Magna Carta. In rejecting the plaintiff's argument the the Court noted that Magna Carta rights can be taken away by competent legislation. It noted that licencing is a tool available to Minister under the Fisheries Act that allows the Minister to restrict entry into commercial fisheries and limit fishing effort. It said "regulations to not remove public access. They provide a 'new order' . . . " (para. 187).
The court the court also reviewed a great deal of evidence and concluded that although some of the regulatory actions such as reducing the total allowable catch of salmon and mandatory herring pooling negatively impacted the packing business, there were a number of other factors which had an even greater impact upon the packing business such as direct access to First Nations mandated by the Sparrow decision, technological advances such as fishing vessels with insulated holds with on board refrigeration systems, more modern larger packers, direct delivery premiums offered by fish processors, and fluctuating fish prices. Accordingly, the court concluded that the plaintiffs had not established "on a balance of probabilities, that the loss of their packing business was a direct result of government action." Since this was fatal to the claim, the court did not address the other elements of a "taking".
Editor's note: This case gives a good history of fisheries management policies over the last 20 years or so and discusses some of the challenges of balancing public rights and private interests.
Offences - jigging salmon/fishing in a closed area - stay of proceedings for failing to consult prior to commencing enforcement proceeding
Aboriginal Rights/Defences - What principles of interpretation apply to Aboriginal Fisheries Strategy ("AFS") Agreements - Does an annual AFS fisheries agreement constitute justification for infringement - duty to consult with respect to enforcement actions.
2016 NSPC 14
The summary as included in the judgement is as follows:
Beginning in 1994 and in each ensuing year the federal Department of Fisheries and Oceans entered into Agreements with the Waycobah First Nation concerning, among other things, a food, social and ceremonial fishing allocation to members of that aboriginal community. These Agreements emanated from an Aboriginal Fishing Strategy created in 1993 by DFO in response to the Supreme Court of Canada decision in R. v. Sparrow.
Pursuant to the terms of the 2007-08 Agreement members of the Waycobah Band were permitted a certain number of salmon. Certain rivers were open to the FSC fishery. Certain fishing methods were permitted. An Aboriginal Communal Fishing Licence was issued, according to the terms of the Agreement.
Salmon stocks in Middle River were below spawning requirements and conservation measures were needed. A limited recreational fishery was in place there for “hook and release” only.
On October 10, 2007 the Defendants, members of Waycobah First Nation, jigged salmon from Middle River, in apparent contravention of the terms of the Licence and Agreement. They were charged with offences under the Fisheries Act.
At trial the Crown acknowledged that the Licence, by restricting aboriginal fishing in Middle River, constituted a prime facie infringement of the Defendants’ aboriginal right to fish for food in that river.
Were the individual Defendants bound, and were the actions of the Defendants encompassed by the terms of the subject Agreement and Licence?
What principles of interpretation ought to apply to modern-day agreements between governmental and aboriginal agencies, such as the subject AFS Agreement?
Where such an Agreement has been reached, does the Agreement itself constitute “justification” for the infringement, according to the Sparrow paradigm? Is the Crown never the less required to justify any infringement posed by the Licence in accordance with the criteria set out in R. v. Sparrow?
If the Crown is so required, has it justified the infringement by producing evidence of sufficient consultation and honourable conduct throughout the negotiations? In particular, did DFO give undue consideration to the interests of recreational fishers, and did DFO mislead Waycobah by employing certain terminology in the written record of negotiations?
What is the nature of the infringement of the aboriginal fishing right posed by the subject Licence? How does this inform the nature of consultations and the degree of formality?
Having regard to a 1993 DFO policy statement concerning the Aboriginal Fishing Strategy, did the Crown fulfill a particular duty to consult with Waycobah about any “enforcement action” which might be taken during the currency of the Agreement? How does this policy statement affect the charging discretion of the Fisheries Officers who apprehended the Defendants? How does the “honour of the Crown” doctrine apply to the mutual performance of the parties’ obligations under the subject Agreement.
Usual principles of construction and contract law should apply to a modern-day agreement between government and an aboriginal entity. Viewed through this lens, the Agreement binds the Defendants and applies to their actions on the date and place in question. It was validly executed by the Chief. There is no ambiguity in the terms of Agreement or the ensuing Licence. The Defendants possessed no residual right to fish. DFO at no time represented that it would not lay charges for breach of terms.
In any case where an agreement such as this has been achieved, whereby a limitation of an aboriginal right is effected, the Crown is not required to prove justification in accordance with the usual standards and criteria in Sparrow. The infringement of the right is presumptively justified by the agreement. There is, however, an enhanced duty of good faith upon the Crown (DFO) in its negotiation of an agreement which limits an aboriginal right. The presumption of justification may therefore be rebutted if the aboriginal Defendant proves that the Crown acted in bad faith in the negotiation of terms. Here the evidence discloses no such breach, nor dishonourable dealings.
In the alternative, if it is necessary to prove justification according to the Sparrow paradigm, the Crown has done so. It consulted sufficiently and behaved honourably in all dealings leading up to the signing of the Agreement
A 1993 DFO Policy statement, pertaining to the entire Aboriginal Fisheries Strategy program, includes an undertaking by DFO to consult with the aboriginal authority (Waycobah) prior to taking enforcement action. This representation, which concerns implementation of AFS Agreements, and supports the co-management objectives of the AFS program, applies to the subject Agreement. Crown did not prove that such consultation was undertaken. While DFO was not precluded from laying charges it was honour-bound to engage in a bona fide consultation before doing so. The apprehension of the Defendants and the seizure of their gear had to be undertake without delay. The Defendants were not charged until months later; some form of enforcement consultation should have been undertaken in the interim.
There was a flagrant breach of the terms of the Licence. The Defendants have no substantive defence. However the failure to consult about enforcement is sufficiently serious to warrant a stay of proceedings.
This is a fairly bold decision that has created new law with respect to both the test for determining if an AFS fishing agreement constitutes justification for an infringement and with respect to the consequences of failing to consult with respect to enforcement actions. It contains some interesting discussions of the legal nature of AFS fishing agreements and offers some suggestions on what would be considered adequate consultation in certain circumstances.
It is currently under appeal.
Offences - Misc. - Meaning of "accurate hail" - vagueness
2016 NSPC 6
This case involved a charge of failing to hail the accurate round weight of ground fish as required by the condition of a fishing licence. The Crown gave evidence that the round weight of the catch of halibut that was not hailed was 28 per cent of what was hailed or 22 per cent of the landed weight (para. 42.). The evidence of the captain at trial was that it was not possible to actually weigh the undressed fish at sea. However the Crown gave evidence that it was aware of one vessel that did so. It also gave evidence that some vessels did volumetric measurements that were reasonable accurate this involves loading tubs or tanks to a certain point where weights are known.
At trial the defence argued that the licence condition requiring the vessel operator to hail the accurate round weight was unconstitutionally vague because it gave no direction on what degree of variance from the true weigh is required.
In rejecting the defences the court summarized its reasons as follows:
137) I find that the word “accurate” in the context of a condition of a fishing license authorized by s. 22(1) of the Fishery (General) Regulations means “precise, careful”. I further find that these words are not synonymous but rather express two aspects to the meaning of the word accurate; first, precision in completing the task; and second, the exercise of care in completing the task. When considered together in relation to the condition 6.6.1(f) of the accused’s fishing license, I find that the condition requires that the vessel operator make as precise a report of the round weight of the fish onboard the vessel by individual species as can be accomplished with the exercising of care in completing the task. I find that this is consistent with the Court of Appeals use of the term reasonable accuracy.
138) The exercise of care involves consideration of factors including the method and equipment used in completing the task and the captain’s knowledge and experience.
139) In my view, this determination of the actus rea of the offence does not diminish the defence of due diligence or mistaken belief of fact set out in s. 78.6 of the Fisheries Act.
140) Based upon the Court’s finding of the meaning of the term “accurate hail” the Court is satisfied that condition 6.6.1(f) in the fishing license of the Ivy Rose delineates, with sufficient clarity, a zone of risk and gives vessel operators, with a like requirement to that of the Ivy Rose, notice of the conduct which will make them liable to being charged. I am not persuaded that the provision is constitutionally invalid due to vagueness. The Defence motion for a declaration of vagueness and for a finding of a breach of section 7 of the Charter for vagueness is denied.
Search and Seizure - S. 49 right to Inspect
Misc. - Obstruction by refusing to allow inspection and refusing to identify self
2016 CanLII 2781 (NL PC)
This case involved a fisheries officer and two fisheries guardians who were conducting a patrol in a Zodiac when they observed the accused in his dory. Although they were some distance away, they thought they observed him fishing. The fisheries officer motioned for the accused to come over to the fishing vessel, but instead the accused drove his dory on to a nearby beach in front of his cabin. The accused gave evidence that he was not fishing at the time, but was filling his engine with fuel. He said he observed the request to go over to the fisheries vessel, but felt that because of the sea conditions, strong current and shoals close by, it was not safe. Instead he motioned for the fisheries office to conduct the inspection on the beach where he had previously seen a similar Zodiac land on a previous occasion. At a later time, the accused refused to provide the fisheries officer with his name. As a result of these actions, the accused was charged with obstruction under s. 62 of the Fisheries Act.
In deciding the case, the Court reviewed the obstruction provision of both the Criminal Code and the Fisheries Act.
The Court also reviewed the inspection powers under s. 49 and concluded that it incorporated the traditional subjective-objective test (para. 39), which it described as follows:
"[I]n determining whether a fishery officer or guardian was carrying out duties and functions pursuant to section 49 of the Fisheries Act, the officer or guardian must have a subjective belief that there is something in the place to be searched in respect of which the Fisheries Act or regulations apply. The search must be for the purpose of ensuring compliance with the Fisheries Act or regulations. In addition, the officer’s or guardian’s belief must be objectively reasonable in the circumstances."
Given the fact that Fisheries Offences are strict liability offences, the Crown does not have to prove that the accused intended that his act would hinder or obstruct. However the Crown does have to prove the the act of obstruction was purposely committed. Once the Crown has proved the actus reus (prohibited act) it is open to the accused to prove he or she took all reasonable steps to avoid obstructing or hindering the fisheries officer.
After reviewing the law,including the burden of proof and the facts, the Court rejected he Crown's evidence that the accused was fishing at the time he was observed. Accordingly they did not have an objective belief to support a s. 49 inspection. As a result the accused did not have a lawful obligation to stop the dory for an inspection.
Given the fact that an inspection was not lawful under s. 49, it followed that the accused's subsequent refusal to identify himself was also lawful.
Given all of the findings, the Court found that the actus reus (prohibited act) of the offence was not made out and acquitted the accused.
Due Diligence - Logbook offence - No system to ensure compliance
Pisces Fishery Incorporated,
2016 ONSC 618
This case involved a company that employed a captain to operate its commercial fishing vessel on a lake in Ontario. The Crown planted a covertly installed tracking device on the vessel and then later compared the daily catch reports prepared by the captain to the information provided by the tracking device. As a result, it was discovered that the captain had prepared numerous misleading and false daily catch reports.
At trial the captain admitted providing false information and consequently the main issue of the case became the question of whether the company was duly diligent with respect to the actions of its captain. At first instance, the trial court accepted that the company had established due diligence by meeting with the captain annually and reviewing his duties with him. The Court did not believe it was necessary for the company to compare daily catch reports to the vessel log book.
Upon further appeal, the appeal court set out the following general principals with respect to due diligence defences:
1. The reasonableness of the care taken must be assessed in light of the specific circumstances of the offence(s) before the court;
2. The degree of care warranted in each case is governed by a consideration of and balancing of the gravity of the potential harm, the alternatives available to the defendant, the likelihood of harm, the degree of knowledge or skill expected of the defendant, and the extent to which the underlying causes of the offence are beyond the control of the defendant;
3. Evidence of standard practice in the industry is only one important factor;
4. Those who engage in an activity within a regulated area are taken to be aware of and to have accepted the responsibility of meeting an objective standard of conduct;
5. A defendant will not be held liable for unforeseeable events or activities beyond which they might reasonably be expected to influence or control;
6. The failure of government officials to properly exercise statutory responsibilities to inspect or take preventative action will not provide a defence where the defendant acted negligently;
7. An employer must show that there was a system in place to prevent the prohibited act from occurring and that reasonable steps were taken to ensure the effective operation of that system;
8. A corporate defendant must show there was a system in place to prevent the prohibited act from occurring and that reasonable steps were taken to ensure effective operation of that system. (para. 36).
The court then rejected the due diligence defence and set aside the acquittal for the following reasons:
1) No evidence was adduced by the defendant of industry standards;
2) The trial court never asked what system the defendant could have put into place to avoid the offence;
3) The evidence did not show any formal system was put into place by the corporation to ensure compliance.
With respect to a system to ensure compliance the court suggested the following minimum system:
1. Semi-annual meetings with the captain of the vessel to review in detail the terms and conditions of the licences issued to the licencee;
2. A copy of the terms and conditions in the licence should be maintained in both the office and on the vessel in a prominent location as a reminder;
3. Periodic random reviews of the logbook by the owner for completeness;
4. Periodic random comparisons of the information in the logbook with that on the Daily Catch Report for that date to ensure that the information corresponds;
5. A system for the imposition of warnings and discipline up to and including termination of employment for non-compliance or repeated non-compliance;
6. If necessary, a requirement that another crew-member initial the daily entries in the logbook to verify the information record.
The court rejected a suggestion by the Crown that the company should have
included an audit of all daily catches and possibly the use of a GPS locator by the company for spot checks on the Captain.
Aboriginal Rights and Defences - Applications to Intervene
Ahousaht Indian Band and Nation v.
Canada (Attorney General,
2015 BCSC 2166
This is a aboriginal fishing rights case where the justification stage of the proceeding was delayed until after the parties had had an opportunity to consult and negotiate accommodation of a declared right to fish any species within their fishing territories (other than for geoduck clams later excluded by the Court of Appeal).
Prior to completion of the justification hearing the following parties groups of parties applied for intervenor status, including the right to lead evidence:
1) The Pacific Prawn Fishermen's Association ("PPFA"):
2) The Canadian Sablefish Association and Christopher Acheson ("CSA");and
3) The B.C. Seafood Alliance and B.C. Wildlife Federation ("BCSA/BCWF").
After an extensive review of the history of the proceedings, arguments of the parties and case law, the court granted all the parties intervenor status with only limited rights to lead evidence.
The court's reasons for granting intervenor status included the following:
1) In Lax Kw'alaams, the court made it clear that the process must be flexible and fair to all the stakeholders;
2) "While a licence is not a right, there is a legitimate expectation of some continuity in the industry, and thus members of the fish communities invest considerable sums into the continuation of their livelihoods, which includes the management of the fishery";
3) Interventions are permitted in some circumstances even where an applicant has only an indirect interest;
4) This case legitimately engages the interests of the applicants and there is a potential for the applicants to demonstrate that they bring a unique perspective to the litigation that may be of assistance to the court; and
5) The court of appeal's deferral of the issues of further delineation of the right and species specificity left the door open to the participation of intervenor s such as the applicants.
With respect to evidence and adding to the record, the court made a general ruling that "the participation of the intervenors in the adding to the record must be circumscribed by the issues that are withing the scope of the litigation as defined in the pleadings, that may assist in its resolution, will contribute to a process that is fair to all stakeholders but will not prejudice the conduct of the case by the parties. In particular, some of the evidence allowed included:
1) Investment of members of the commercial fishery to their own costs of fishing;and
2) Contributions of members of the commercial fishery to the cost of management of the fisheries.
Offences - Misc. - Wasting of Fish
2015 SKPC 76
This case involved a fish harvester commercial ice fishing in Saskatchewan. He took the most profitable fish (walleye) to market but left the less profitable fish (whitefish and pike) on the ice mixed in with fish offal. After rejecting much of the evidence presented by the accused, the court convicted him under s. 92(C) of the Fisheries Regulations of wasting fish. His sentence included a modest fine and suspension of his commercial licence for one year.
Offences - Officially Induced Error
2015 BCPC 176
This case involved a commercial salmon seine fishery that for some time had been pooled in the sense that only some of the available fishing vessel are allowed to participate in the fishery. In the past, vessels that were assigned a catch in the pool, but did not have the required license to fish, purchased temporary assignments of licenses from other boats and fished the quota of the assigned licenses. During the 2012 fishing season the fishing vessel captained by the accused was authorized by the management committee of the pooled fishery to participate in the pooled fishery. At that time, a representative of the commercial fishers working group notified the accused that his fishing vessel was authorized to participate in the pooled fishery. Consequently, temporary assignments of license and quota were purchased. In addition the accused read an e-mail that was distributed by the Department of Fisheries and Oceans ("DFO") indicating that a designation by the Harvest Committee was a precondition to participating in the pooled fishery.
The accused then participated in the fishery and caught fish, although a fishing license had never been issued to his vessel by DFO. He was subsequently charged with fishing without a licence and attempted to defend himself based upon the defence of officially induced error.
This defence was rejected for the following reasons:
1) The accused did not seek advice regarding the legal question of whether the fishing vessel was properly licensed to participate in the fishery;
2) He could not rely upon the statement of the representative of the commercial fishing group because he was not a government official;
3) No evidence was presented regarding past acquiescence by DFO in the administration of the pooled fishery;
4) The fisheries notice relied upon by the accused were not in any way directed to the question of whether to the boats participating in the pooled fishery were required to have valid commercial fishing licenses.
Offences - Variation Orders
2015 CarswellNWT 86 2015 NWTTC 21
This case involved charges under the Federal Fisheries Act of fishing during a closed season. The main defence in the case involved a challenge of the authority of the Regional Director to make a variation order that purported to close the waters in question to fishing on the grounds that it had been improperly subdelegated by the Regional Director-General.
The relevant legislation was s. 6(1) of the Fisheries Act which provided that: "Where a close time, fishing quota or limit on the size of weight of fish is fixed in respect of an area . . ., the Regional Director-General, may, by order vary that close time, fishing quota or limit in respect of that area or any portion."
After extending the test set out R. v. Corcoran (1999), 181 Nfld. & P.E.I.R. 31, the court held the subdelegation to be invalid on the following basis:
"I find that in order for a public official such as the Regional Director- General to subdelegate his statutory authority the following questions must be determined:
[i] Is the act in question legislative or administrative?
[ii] However characterized, can the public official subdelegate the act in question?
[iii] If so, is the subdelegate a person to whom the power can legitimately be subdelegated?
[iv] If so, is the nature and scope of the subdelegation otherwise permissible?
31 In this case, I have concluded that the Regional Director-General may subdelegate to the Regional Director the power to make a variation order. However, the subdelegation must be for a brief and defined period of time and must be necessary from a practical standpoint. Additionally, the Regional Director should provide guidelines on how to exercise the subdelegation.
32 Because in this case, the subdelegation was of an indefinite duration, I find that the order of September 12, 2014 that both defendants are alleged to have breached to have been invalid."
Offences - Due Diligence - East coast halibut fishery - Removing fish from vessel prior to (a) contacting Fisheries Resource Centre, (b) receiving authorization number and (c) updating log book.
2015 NLPC 1314,
A due diligence defence was not established, as writing down catch numbers on a piece of cardboard does not constitute due diligence.
Offences - Misc. - Admissibility of Statement to fisheries Officer
2015 NUCJ 15
This case involved a fishing vessel that was observed by a Fisheries Officer in a plane to have fishing gear in a closed area. The fisheries officer conducted an interview of the captain of the fishing vessel by radio. The accused captain attempted to exclude the evidence at trial on sections 7 and 10 of the Charter.
The court rejected the Charter defence based upon the following findings:
1)The accused was informed that he was being investigated for a violation under the Fisheries Act and knew that his gear had been found in a closed area and that he could be charged under the Fisheries Act as a result. He knew all of this before receiving a caution and before his rights were read to him;
2) The accused's jeapardy did not change at any time during his interaction with the fisheries officer;
3) From the outset, the accused was advised of the reason for the questions being asked and confirmed he understood;
4) The accused was told he could speak to a lawyer and would be provided with a telephone directory and privacy;
5) The accused advised that he did not want to talk to a lawyer;
6) Without the benefit of legal advice the accused gave the fisheries officer an explanation of why the fishing gear was located in a closed area.
Judicial Review - Failure of the Minister of Fisheries to Follow the Recommendation of the Atlantic Fisheries Licensing Appeal Board ("AFLAB")
Her Majesty the Queen (Minister of Fisheries),
2015 FC 734
In this case, the Applicant was a commercial fish harvester residing in Prince Edward Island who wished to move to New Brunswick. In order to do so, he sold the fishing license that he used while living in Prince Edward Island. After consulting with the Department of Fisheries and Oceans ("DFO"), he moved to New Brunswick and entered into an agreement to purchase a fishing license and related assets from a New Brunswick license holder for 1.5 million dollars and partly paid for it. This agreement provided that the vendor would hold the fishing license in trust until the Applicant had satisfied DFO residency requirements in New Brunswick.
Prior to the license being transferred to the Applicant, DFO imposed a freeze on any further transfers of the vendor's license and eventually the vendor withdrew his expression of intent to transfer the license to the Applicant.
Subsequently, the Applicant commenced a legal action against the Vendor, that resulted in a finding that the contract had been frustrated.
Subsequently, the Applicant met with Fisheries Minister, who allegedly said that she agreed to send the matter to the AFLAB and would abide by the recommendation of the AFLAB.
Subsequently, the AFLAB recommended that the Minister re-issue the license to the Applicant on the grounds that DFO had previously given him erroneous information about the required qualification that caused him to miss an opportunity to have the license transferred before the freeze. When the recommendation was made, however, DFO had a new Minister who rejected the recommendations of the AFLAB by way of letter dated 2 March 2012. The stated reasons for not following the recommendations were: (1) no request for issuance of the license had been made by the vendor; and (2) the Board had failed to consider the court case that had held the sale agreement was frustrated.
Subsequently the new Minister became sick and Minister Shea was re-appointed as acting Minister. After receiving a request for a reconsideration, she issued a letter dated 27 November 2013 stating that the Applicant's matter "has been thoroughly addressed and there is no merit for further review".
At the judicial review hearing a number of issues were raised.
WHICH DECISIONS ARE SUBJECT TO JUDICIAL REVIEW
The court held that the letter of 27 November 2013 was subject to review, but the original decision referred to in the letter of 27 November 2013 could also be considered.
STANDARD OF REVIEW
The court relied upon the decision of Malcolm v. Canada 2014 FCA 130 to apply a standard of reasonableness to the review of the Minister's decision. It applied the correctness standard to the procedural fairness issues.
Given the fact the decision had great financial weight for the Applicant the court found he was entitled to procedural safeguards. In failing to advise the Applicant that it was taking into consideration the court case that found the purchase agreement was frustrated and giving him an opportunity to comment, the AFLAB breached procedural fairness. However, the court found that this breach was immaterial because the Applicant at no time had a right to the license because at the time of the appeal the vendor had never applied to re-issue the license to the Applicant.
REASONABLENESS OF THE FIRST DECISION BY MINISTER ASHTON
The court commenced by stating the test as follows:
"The discretion of the Minister to issue fishing licences is outlined at section 7 of the Fisheries Act. It must be i) in accordance with the requirements of natural justice; ii) based on relevant consideration; iii) without arbitrariness; iv) in good faith; v) in accordance with applicable statute or regulations; and vi) in accordance with the provisions of the Charter (Comeau at paragraphs 30, 31, 36, 37 and 51).
The court then found that alleged promise by Minister Shea to follow the recommendation of the AFLAB did not create a substantive right because a Minister cannot fetter his or her discretion to act in the future.
The court then relied upon a written policy statement that "a replacement licence may be issued upon request by the current licence holder to an eligible fisher recommended by the current licence holder" to find that since the Applicants request was not in accordance with this written policy, "in refusing this request, Minister Ashfield exercised his discretion in accordance with the law and did not make the decision in bad faith"
With respect to allegations that DFO mislead the Applicant when he inquired about the residency requirements for obtaining a licence in New Brunswick, the court found that there was insufficient evidence to make such a finding and, in any event, a judicial review is not an appropriate forum to adjudicate that issue.
REASONABLENESS OF THE SECOND DECISION BY MINISTER SHEA
Based upon several authorities the court concluded that Minister Shea's alleged promise follow the recommendation of the Board would have been an impermissible fettering of her discretion.
The court dismissed the judicial review application but did not grant costs.
Editor's note: The court may have erred in stating the breach of procedural fairness was immaterial because the Applicant had no right to the licence because the vendor had not applied to issue it. The policy guideline relied upon by the court was just a policy statement that would not have been binding upon the Minister. The whole purpose of the licence appeal process is to provide for situations where stated policies should not be followed based upon extenuating circumstances. The failure to give the Applicant the right to comment on the court case deprived the Applicant of an opportunity to argue that the Minister should make an exception to his policy.
Judicial Review - Challenge of Decision of Minister issuing license for scallop fishing
Canada (Attorney General),
2015 FC 683
This case involved a challenge by group of commercial scallop fishers from one area when the Minister of Fisheries issued licenses to another group that allowed the other group to fish in the first groups historical area. This application was denied on the grounds that the Minister had very broad discretion to manage fisheries and issue licenses in doing so. The court applied Malcom v Canada (Fisheries and Oceans), 2014 FCA 130.
Contracts - Alleged breach of contract for the right to operate the commercial fishery rights of a First Nation.
Aboriginal Rights - Whether or not Provincial Superior Court has jurisdiction over case involving Band Council administering a commercial fishing contract.
Practice - Application for an Injunction restraining party from interfering with or terminating contract.
Marion et al. v.
Perley et al.,
2015 NBQB 147
This case involved an alleged agreement whereby the plaintiff paid a First Nation for the exclusive right to manage and operate its commercial fisheries for the 2013, 2014 and 2015 fisheries. The agreement allegedly gave the plaintiff full control over the commercial fishery operations, the right to lease licences at will from the First Nation and be the designate as defined by Fisheries and Ocean's (DFO) guidelines.
The contract worked well until there was a change in composition of the Band council. After that time there were a number of alleged breaches including forwarding a resolution to DFO that appointed a new chief councillor as the "fishing authority".
As a preliminary matter the court had to determine whether it had jurisdiction, as the Defendants argued that the Federal Court had jurisdiction because the Band Council was a "federal board, commission or other tribunal". In upholding its jurisdiction the court ruled that because the Band Council decisions being reviewed involved a private commercial matter, it was not acting as a "federal board, commission or other tribunal".
With respect to the request for an injunction, the court applied the three part test set out in RJR MacDonald Inc. v. Attorney General (Canada) (1994), CanLII 117 (SCC). The court had no difficulty finding that there was a serious issue to be tried. The court also found irreparable harm, based upon (a) the fact that the Band Council was under third party management by the Department of Aboriginal Affairs and (b) if the contract were terminated there would be a ripple down effect impacting other parties the plaintiff had contracted with such as fishing captains and crews who were supposed to fish for the plaintiff. With respect to balance of convenience, since the three year contract would end approximately seven months after the decision was being issued, the court ruled in favour of the status quo.
Based upon its application of the RJR MacDonald test, the court granted the injunction to the end of 2015.
Review of licence condition granting fish farm facility veterinarian to allow transfes of diseased smolts that he or she deems to be low risk.
Minister of Fisheries and Oceans and Marine Harvest Canada Inc.,
2015 FC 575
This case involved judicial review of conditions in Salmon Farm licences on the Pacific Coast that allowed the transfer of diseased smolts from hatcheries to fish farms if, amongst other things, the fish farm's veterinarian deems the transfer to be of low risk. After a lengthy analysis, the court granted an order declaring that the impugned licence conditions were of no force and effect on the grounds that:
(1) They were inconsistent with the regulatory pre-conditions imposed on the Minister of Fisheries by s. 56 of the Fishery (General) Regulations and the precautionery principle; and
(2) There was an improper subdelegation of the Minister's authority becase (a) it conferred unlimited discrition upon the sub-delagate without any standards or criteria for the exercise of discritions and (b) the Minister did not retain supervisory control.
After an interesting analysis of the use of conditions in licences by the Minster, the Court concluded by noting that since the scope of regulation is constrained by its enabling legislation, "so too are licences".
Editor's note: Since many charges under the federal Fisheries Act are for breaches of license conditions, as opposed to breaches of regulations, this case could be useful in defending fisheries prosecutions.
Offences - Forfeiture
2014 CanLII 72869 (NL PC)
This case involved a a 71 year old man who was caught setting a net across a creek from which three trout were retrieved. He was fined $3,000 for illegally fishing with a net and $1,000 for illegal possession of three trout. After reviewing a number of authorities regarding forfeitures under the Fisheries Act and concluding that it had the discretion to order forfeiture, the court declined to make such an order.
Aboriginal Right - Injunction to stop herring fishery
Practice - Appeal of Injunction - Mootness
Minister of Fisheries and Oceans v.
Ahousaht First Nation et al. ,
2014 FCA 211
This case involved the appeal of a decision of the Federal Court issued on 28 February 2014 restraining the Minister of Fisheries from opening a commercial herring roe fishery(digested on this website). Since the commercial herring fishery was completed before the Crown requested an expedited appeal in June of 2014, the court ruled that there were no factors that would justify allowing an appeal notwithstanding mootness.
Offences - Misc. - Application to Quash a Ticket Information
2014 BCSC 1350
In this case, a provincial court judge quashed a ticket information on the grounds that s. 79.7(2) of the Fisheries Act requires both the summons and the information portion of the ticket comply with all of the s. 79.7(2) requirements. In doing so, the provincial court judge found that there was an ambiguity in the wording of s. 79.7(2) and resolved the ambiguity in favour of the accused.
In allowing the Crown appeal and setting aside the acquittal, the summary conviction appeal court found that the trial judge misapplied the principals of statutory interpretation.
Contracts - Licence Swap Between Father and Son - Interpretation of Transfer Back Clause
Arbitration Clause - Scope of Judicial Review
Layman Estate v.
2014 NLTD 66
Fisheries Practice - Class Action Against Minister of Fisheries - Whether Directors of a Fisher's Organization should form a Subclass
Canada (Minister of Fisheries and Oceans),
2014 BCSC 2014
This case involved a class action by a group of halibut fishers against the Minister of Fisheries alleging that the halibut management scheme that held back 10 per cent of the halibut quota and assigned it to the Pacific Halibut Management Society was illegal and that it cost the fishers more to access the quota than it had under the previous management scheme. In response to a argument by the Minister that it had additional defences against directors of the Society the Plaintiff brought an application to create a subclass of directors of the Society.
In response to the application, the court created a subclass comprised of the following:
"All owners of fishing vessels with a Category L Commercial Halibut License to fish for halibut issued by the Minster of Fisheries and Oceans (“Licensed Vessels”) between 2001 and 2006 inclusive (the “Material Time”) for which quota was purchased from PHMA and:
(a) who at any time during the Material Time:
i. were directors of PHMA; or,
ii. were corporations in which a PHMA director owned more than 50% of the shares; or
(b) who claim that they were in a partnership with a PHMA director in relation to a Licensed Vessel and the purchase of quota from PHMA at any time during the Material Time."
The court also made some additional changes to the definition of the class.
Judicial Review/Crown Liability - Decision of Minister re Allocation of Total Allowable Catch of Halibut from Commercial Sector to Recreational Sector
Canada (Minister of Fisheries),
2014 FCA 130
This case involved a representative proceeding brought by the applicant on behalf of all commercial halibut licence holders in British Columbia. The applicant sought judicial review of a decision of the Minister of Fisheries changing the allocation of the total allowable catch (“TAC”) of halibut between the commercial sector and the recreational sector from 88% (commercial)/12% (recreational) to 85%/15%.
In making the decision under review, the Minister rejected the advice of his department and also broke a prior stated policy of only modifying the allocation by a market driven mechanism.
In upholding the decision of the Applications Judge to dismiss the application, the Court of Appeal examined the following issues:
10 What is the applicable standard of review;
2) Does the doctrine of promissory estoppel apply;
3) If not, does the doctrine of legitimate expectations apply; and
4) if not, was the Minister's decision nevertheless reasonable.
STANDARD OF REVIEW
The Application's judge's selection of the appropriate standard is itself a question of law reviewable on the standard of correctness.
The issues of promissory estoppel and legitimate expectations were correctly reviewed by the application's judge on standard of correctness.
With respect to review of the substance of the Minister's decision, all the parties agreed that the applicable standard was reasonableness, but they disagreed as to what the standard required in the context of the case. The appellant commercial licence holders argued that the reasonableness standard set out in Dunsmuir applied without qualification. The Respondents argued that the Maple Lodge Farm test applied. In response to these arguments, the Court of Appeal appears to have subsumed the Maple Lodge Farm test into the Dunsmuir test as follows:
"A discretionary policy decision that is made in bad faith or for considerations that are irrelevant or extraneous to the legislative purpose is unreasonable by that very fact [Maple Lodge Farms]. Such a decision can also be unreasonable if it is found to be irrational, incomprehensible or otherwise the result of an abuse of discretion. The ultimate question in judicially reviewing the Minister’s decision in this case is to determine whether the decision falls within a range of reasonable outcomes having regard for both the context in which the decision was made and the fact that the decision itself involves policy matters in which a reviewing court should not interfere by substituting its own opinion to that of the Minister’s. It is with these considerations in mind that the reasonableness of the Minister’s decision should be determined." [para. 35]
After reviewing the authorities that provide for a very limited application of the doctrine of promissory estoppel to public authorities the Court of Appeal noted that the "Minister may modify the approach followed previously if, in the Minister's opinion, public interest considerations reasonably justify such a change of policy . On the facts of the case, the Court ruled that the estoppel did not apply.
This argument was rejected on the grounds that it is limited to only procedural relief and the applicant was seeking substantive relief.
REASONABLENESS OF THE DECISION
The essence of the appellant's argument was that the Minister abused his discretion in deciding to reallocate 3% of the TAC without using a market-based mechanism. The Court of Appeal rejected this argument and upheld the decision of the Minister for the following reasons:
1) The Minister has broad authority and discretion to manager fisheries in the public interest;
2) The Minister may take into account social and economic factors when allocating a fishery resource;
3) The Minister is not bound by policy decisions of his or her predecessors;
4) The Minister is not bound to provide compensation to affected fishers when reallocating TAC or reducing quota;
5) The commercial sector and the sports sector were unable to agree upon a market based mechanism despite numerous efforts by DFO;
6) The use of public funds to compensate the commercial fleet was not deemed appropriate by DFO;
7) DFO questioned the feasibility of a levy for fee mechanism to collect funds to support a market based mechanism;
8) a pilot experimental marked-based mechanism in introduced in 2011 did not meet with any substantial success;
9) The Minister's primary consideration was to encourage jobs and economic growth in B.C. and the recreational sector provides an important contribution to the economy of B.C.; and
10) Although not the option favoured by DFO officials, the plan implemented by the Minister was one of several options presented to him by DFO officials.
The Court summarized its decision as follows:
"The Minister’s decision to proceed with the 3% reallocation of the TAC without applying a market-based mechanism or another form of compensation was not irrational or incomprehensible when considering the record as a whole. Moreover, that decision was not an abuse of the Minister’s discretion, and it was not made in bad faith or on the basis of considerations that are irrelevant or extraneous to the purposes of the Fisheries Act. The Minister’s decision fell within a range of reasonable outcomes having regard for both the context in which the decision was made and the discretionary and policy nature of the decision."
Taxation - Aboriginal Rights - Income primarily from herring roe-on-kelp and herring roe fishery not exempt
Pilfold Estate v. v.
2014 FCA 97
This case involved an exemption claimed by a roe-on-kelp and herring roe fisher who was a status Indian from the Musqueam First Nation. After applying the connecting factors test, the court did not allow the exemption that company minute books were kept on the reserve. Some of these factors included:
"The fishing boat and fishing equipment were kept off reserve. The extensive preparations required each season occurred off reserve under Mr. Pilfold’s direction as captain of the fishing boat. The fishing took place off reserve under Mr. Pilfold’s direction. All sales were made by Mr. Pilfold to commercial buyers off reserve. The only factual connections between the fishing operation and the reserve were weak or insubstantial: some telephone calls were made from the Musqueam home with respect to equipment repairs, and some trimmings from the roe on kelp harvesting – a relatively small amount – were donated to First Nations."
Offences - Due Diligence - Retaining Whelk less than 63 millimeters in length -
2014 NLTD 27
This case involved a fish harvester who was charged with violating a licence condition that prohibited him from retaining whelk that were less than 63 mm in overall length. At trial the fish harvester gave evidence that his primary method of grading the whelk for size was by using a grading table that that was an open table with a series of bars in the middle. The crew dumped the shell fish on the table and spread them out evenly causing the small ones to fall through the grate. Although the table measured the girth rather than the length, his evidence was that this was the industry standard and no other measurement method was available. Given the small size of the fish and size of the catch (24,309 pounds), this was the only practical method of measurement available.
At the first instance the provincial court trial judge rejected a due diligence defence on the grounds that "[t]he reality is that measuring every single whelk would be time consuming, and, therefore, expensive. It would not, however, be impossible. Here I hasten to add that while measuring every single whelk to ensure that it was less than 63mm long might have been expensive, it is incumbent on the fishers to conduct the fishery so as to comply with the conditions of their licences. In other words, the requirement to comply with the licence condition is not waived just because it might impinge on the profit margin of the fishery [para. 26]".
Upon summary conviction appeal, the decision of the trial judge was set aside on the grounds that he set to high a standard. The Appeal Court noted that the Crown had not led any evidence that there was any other method of measuring the catch other than measuring each whelk. It noted that based upon the time it took the Crown to measure six bags of whelk, it would have taken 10 regular work weeks to measure a three day catch.
The matter was remitted for a new trial before a different trial judge.
Aboriginal Rights - Practice - Injunctions - First Nations Granted Interlocutory Injunction Prohibiting Opening of Commercial Roe Herring Fishery
Ahousaht Indian Band v.
Canada (Minister of Fisheries and Oceans),
2014 FC 197
In this case the applicants were a group of five First Nations located on the West Coast of Vancouver Island who had recently had their right to to fish and sell fish affirmed by the Supreme Court of B.C. with the issue of justification and infringement to be later determined. When affirming this right, the court had given the parties a period of time to consult and attempt to negotiate the manner in which the aboriginal rights to fish and sell fish would be exercised. During this period the the Minister made a decision for a small scale opening of the commercial roe herring fishery, despite the fact that his officials had recommended keeping the fishery closed. It was also noteworthy that the fishery had been closed for the previous nine years because of conservation concerns. Shortly before the commencement of the commercial fishery, the group of First Nations brought an application for an interlocutory injunction.
The issues addressed by the court were as follows:
1) Does a serous issue arise;
2) Will irreparable harm occur if the injunction was not granted; and
3) Does the balance of convenience favour the injunction.
DOES A SERIOUS ISSUE ARISE
Without a great deal of analysis, the court found a serious issue arose with respect to:
a) Conservation issues concerning the fishery; and
b) The acknowledged Aboriginal rights of the Applicants to fish and sell fish.
The court found that there would be irreparable harm because of:
a) Serious conservation concerns;and
b) The Applicants would "lose their position and opportunity to reasonably participate in negotiations for establishment of their constitutionally protected Aboriginal rights to a community-based commercial herring fishery [para. 27].
Although inadequate consultation does not always constitute irreparable harm, the court distinguished Musqueam Indian Band v. Canada, 2008 FCA 214 on the basis that "the Applicants have established an Aboriginal right to fish and sell fish and are therefore operating within an established rights legal framework and because they are in the process of negotiating the manner in which the Applicants' Aboriginal rights can be accommodated and exercised. [para. 28].
BALANCE OF CONVENIENCE
In finding the the the balance of convenience favoured the applicants, the Court emphasized the need to consider the public interest in ensuring that the Crown followed the previous court's direction to participate in negotiations concerning how the applicant group would exercise its fishing rights.
The public interest also favoured conservation.
Given its finding as described above, the Court granted an interlocutory injunction prohibiting the Minister from opening the West Coast of Vancouver Island commercial herring fishery. It also relieved the applicants from the normal requirement of having to give an undertaking as to damages.
Editor's Note: At the time of writing, this decision was under appeal.
Practice - Bankruptcy and Insolvency - Application to Re-appoint Trustee to Sell Fishing Licence - Saulnier not applied retrospectively - Caines (Re) distinguished - Res Judicata - Issue of Ownership of Fishing Licences Should Have Been Raised Before Discharge from Bankrupcty.
2014 NBCA 7 2013 NBQB 355
Aboriginal Rights - Judicial Review of Band Council Decision re allocation of Communal Fishing Licence - Whether Band Council is a "Federal board, Commission or Other Tribunal"
Shubenacadie Indian Band,
2014 FC 129
The applicant band member obtained a bank loan to purchase a fish boat upon the assurance of her Band Council that she would be given use of a communal snow crab licence and quota for a period of six years. She purchased the fish boat and had use of the licence and quota for three years. The Band then assigned the licence to another non-aboriginal party for a two year period. As a result, the applicant commenced a judicial review proceeding in Federal Court seeking the following:
1) An injunction prohibiting the Band from allocating the licence to anyone other than herself;
2) A declaration that the Band exceeded its jurisdiction in allocating the licence to another person.
PRELIMINARY JURISDICTIONAL ISSUE
As a preliminary matter, Band argued that its decision was not subject to judicial review by the Federal Court because in making the allocation decision the Band was not acting as a "federal board, commission or other tribunal" within the meaning of s. 2(1) of Federal Court Act. In holding that the Band was acting as a federal board, commission or other tribunal the court said as follows:
"[T]he Band Council’s decision to allocate the quota to Kaiser is reviewable because it was made under regulatory grant of authority delegated by the Minster to the Band to decide who is authorized to fish the quotas allocated by the communal licences. In other words, in this case, like the others where band council decisions have been found to be amenable to judicial review, the Council was exercising a power specifically afforded to it by regulation." [para. 31] In applying the test set out in Air Canada v Toronto Port Authority, 2011 FCA 347 the court also concluded that:
1) There were significant public aspects to the decision because the Interim Fishery Agreement with Federal Government recognized that communal licences were granted to the First Nation in order to provide members with opportunities to conduct fishing and related activities;
2) Granting of licences pursuant to a monopoly right to harvest a community resource has a significant public aspect;
3) The Band Council authority to issue communal licences was entirely "interwoven into the scheme established under the Fisheries Act and Regulations and is exercising a licensing power akin to that exercised by the Minister under section 7 of the Fisheries Act . . ." [para. 36].
4) The Band council is exercising authority delegated to it by the Minister; and
5) The decision to designate an individual under a communal licence involved the exercise of a compulsory power.
Given the court's conclusion that the decision was subject to the jurisdiction of the court over judicial review, it followed automatically that the requirements of natural justice and procedural fairness applied to the Band. The scope of of the requirements vary depending upon a number of factors set out in Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC). In this particular case, the court found two important factors:
1) The applicant derived important income from having her fishing vessel fish for snow crab and that she took out a loan understanding that she would have access to the licence for five years; and
2) Given the letter the Band provided to assist with her financing and the failure of the Band to express any concerns about her performance, the applicant had a legitimate expectation that she would be advised if there was a risk of her losing the licence before the end of the five year term and that she would be given an opportunity to address any concerns and make a proposal.
Based upon these to factors the court concluded that the case fell towards the lower end of the spectrum, but was more than minimal. As result the court set aside the Band's decision to issue the quota to another party and ordered it to re-determine who and which vessel would have use of the licence. In doing so, the Band was required to:
1) Give her notice of its intention to make a decision;
2) Give her the right to submit a proposal for her use of the licence;
3) Give her the right to address the Band's concerns regarding lack of profitability in previous years;
4) The other party who the band had re-assigned the licence to and fished the licence for one year, should also be given an opportunity to make a proposal (the proposals of one applicant need not be disclosed to the other).
The court declined to deal with the applicant's claim that the Band's decision was unreasonable because it would be re-made. However the court did express the opinion that discretionary licensing decisions are afforded considerable deference. It also noted that the object of the Interim Fisheries Agreement to provide members of the First Nation with opportunities to conduct fishing and related activities, could be met "in appropriate circumstances by assigning the quota to a non-aboriginal enterprise that undertakes . . . to hire and train members . . ." "