Fisheries Law

Recently posted case summaries and articles relating to Fisheries Law can be found on this page. Previously posted summaries and articles are archived by subject matter. Simply click on the appropriate heading in the table below for cases relating to that subject matter.  

Copies of many of the decisions referred to can be obtained from the web site of the Canadian Legal Information Institute. At this site, these cases can also be noted up using the Reflex Record to determine whether they have been changed upon appeal.

TOPICS

Recent Cases 

Judicial Review/Crown Liability - Mandamus to Enforce terms of Management Plan

Arsenault v. Canada (A.G.), 2009 FCA 300 [link]

This case involved a group of traditional crabbers from Prince Edward Island who who were promised financial assistance totalling 37.4 million to offset a 10.85 per reduction in their share of the total allowable catch that was re-allocated to aboriginal fishers pursuant to the Marshall Response initiative. This compensation package was incorporated into the Management Plan and and licences were issued. However, when the fishers sought to claim their share of the financial assistance they were told they would not receive it unless they signed a general form of release that had not been referred in the management plan.

The issue in the ensuing application for mandamus was "whether the financial assistance announced in the Management Plan forms part of the Minister's discretionary decision under the Act and if so, whether the Minister has a public legal duty to implement the Plan as announced" [para. 29 trial decision].

In deciding the above stated issue in favour of the applicant fishers and making an order of mandamus requiring the payment of compensation without the need for a release, the trial court concluded that "following the Minister's approval of the Management Plan, his discretionary power was spent and, as a result, he was legally bound to implement it" [para. 19 of appeal decision].

In overturning the trial court decision and allowing the Crown appeal, the majority appeal judgement  stated as follows:

I therefore respectfully believe that Blanchard J. erred in law or that he proceeded on a wrong principle of law in finding that the Minister’s discretion was spent when he approved the Management Plan. The Management Plan is an expression of policy, not a decision to grant permits under section 7, and the Minister’s discretion is thus not exhausted by the approval thereof. The Minister was not bound by his policy and he could, at any time, make changes thereto. Consequently, whether the Minister turned his mind to a release of liability condition when he issued the Management Plan or whether it was an afterthought resulting from suggestions made by Department officials is, in my view, of no help to the respondents, as the Minister could not fetter his discretion when he issued the Management Plan. [para 43]

In a minority concurring decision, Pelletier J.A. was of the view that the Management Plan should be viewed as a series of different decisions as opposed to one single decision. After reviewing the test for granting mandamus, Pelletieir J.A. concluded as follows:

The crabbers had no legal right to any particular amount of quota. This flows from the nature of fishing licences, in respect of whose issuance the Minister has the broadest discretion: see Comeau’s Sea Foods Ltd v. Canada (Minister of Fisheries and Oceans), 1997 CanLII 399 (S.C.C.), [1997] 1 S.C.R. 12, [1997] S.C.J. No.5, at paragraph 49. Consequently, if there is no vested right to a given quota, there can be no right to compensation arising purely from the fact of loss of quota. As a result, the decision to offer compensation for lost quota is not one which is based on a statute or a regulation. In fact, the crabbers allege in their action that their right to compensation is a matter of contract. The exercise of the minister’s discretion to issue fishing licences with reduced quota under section 7 of the Act did not result in a public legal duty to pay compensation for the lost quota. There being no public legal duty, the crabbers are not entitled to an order of mandamus.

Editor's note:   It is useful that in this and several other recent cases, the Federal Court of Appeal has quoted at length the test to be applied to the review of discretionary decisions from Maple Lodge Farms v. Government of Canada [1982] 2 S.C.R. 2. This is useful because  this test has been misunderstood by some courts as a result of an unfortunate choice of words by the Supreme Court of Canada at paragraph 36 of  Comeau's Sea Foods Ltd. v. Canada [digested herein], which could be interpreted as meaning  that reliance upon irrelevant and extraneous considerations, avoiding arbitrariness and acting in good faith is part of the natural justice analysis. However a review of Thomson v. Minister of Fisheries at footnote 9 [link] referred to at paragraph 36 of Comeau reveals that the Court was in fact relying upon the test as set out in Maple Lodge Farms, which makes it clear that these matters are to be considered in addition to the question of  the natural justice  (see quote at paragraph 38 of Arsenault).

Aboriginal Rights and Defences - Aboriginal right to catch and sell fish

Ahousaht Indian Band and Nation v. Canada (Attorney General), 2009 BCSC 1494 [link]

This case involved a claim by five Nuu-chah-nulth ("NCN") 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, the court: (1) Granted a judgement declaring an aboriginal right to fish for any species of fish in the environs of their territories extending nine nautical 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.  A link to the approximately 220 page decision is set out above. Summaries of the different parts of the case are set out below. Numeric references are to paragraph numbers.

Aboriginal Rights - History

The historical evidence, as summarized by the court was as follows:

 I have concluded from the evidence the following:

1.         the Nuu-chah-nulth had longstanding trade networks both in a north/south direction along the coast and overland via the Tahsis and other trade routes;

2.         trade relations existed with “strangers” who came to pay tribute to powerful chiefs but in doing so received reciprocal gifts in return;

3.         marriages were arranged to facilitate trade with extended kin, kin having a broad definition;

4.         dentalia [shells] were found in exotic places (that is, far from the place of origin) by archaeologists, indicating their use as a trade item;

5.         iron was noted by the earliest of the explorers to be traded up and down the coast, indicating a strong pre-contact trade network;

6.         the Nuu-chah-nulth were not equally endowed with the same resources and thus the exchange of foodstuffs was necessary;

7.         the systems of payment of tribute, gift giving, reciprocal exchange and trade overlapped with each other and existed within a polite form of respect for powerful chiefs;

8.         the Nuu-chah-nulth did not trade for the purposes of accumulating wealth (I heard no such evidence);

9.         the Nuu-chah-nulth had the ability to dry, preserve, and trade vast quantities of fish and marine products.  (For a more detailed discussion, see the section above titled “Dependence on Fish”); and

10.       the frequency and amount of trade, including trade in fish and marine products, suggest that such trade was a practice integral to Nuu-chah-nulth society.

 I conclude that at contact, the Nuu-chah-nulth engaged in trade of fisheries resources.  I conclude that that trade included the regular exchange of fisheries resources in significant quantities to other tribes or groups, including groups with kinship connections.  I do not exclude from this definition reciprocal gift giving or barter. [Para 281-2]

Aborignal Rights - Integrality of Ancestral Practices to Distinctive Cultures

The courts summarized it findings on parts 2 - 4 of the Van der Peet test as follows:

The second and third parts of the Van der Peet analysis direct the Court to consider the existence of the ancestral practices supporting the claimed rights to both harvest fish and sell that fish, and whether those rights were integral to the distinctive cultures of pre-contact Nuu-chah-nulth society.  At contact, the Nuu-chah-nulth were overwhelmingly a fishing people.  They depended almost entirely on their harvest of the resources of the ocean and rivers to sustain themselves.  The Nuu-chah-nulth traded these resources with other aboriginal groups both within a loosely defined kinship network and outside that network.  After contact with Europeans, that well-established trading custom was expanded to adapt to the influx of European explorers and fur traders.  Having concluded that the various Nuu-chah-nulth tribes shared a language and culture, I have, where appropriate, made the necessary inferences from the evidence that all the Nuu-chah-nulth peoples engaged in trade with each other even though the evidence of indigenous trade cannot on the basis of the direct observations made at contact be attributed to each of the plaintiffs.  In my view, there is sufficient evidence of indigenous trade up and down the WCVI for me to conclude that each of the plaintiffs was engaged in that indigenous trade.

 I am also satisfied that fishing and trading in fisheries resources were practices that were integral to the distinctive cultures of pre-contact Nuu-chah-nulth society.  I have concluded that each of the plaintiffs has demonstrated sufficient connection to the pre-contact society from whose aboriginal practices they claim to have derived their aboriginal rights.  Similarly, each of the plaintiffs has demonstrated sufficient geographic connection between their claimed fishing territories and those of their ancestors from whom they claim to derive their aboriginal rights.  Fishing was the predominant feature of the Nuu-chah-nulth society and I have concluded that indigenous trade in fish was also an integral feature of Nuu-chah-nulth society.  As distinct from the conclusion reached by Satanove J. in Lax Kw’alaams Indian Band that any indigenous trade in fish by the plaintiff band was infrequent or opportunistic, I conclude these plaintiffs have proven trade in fish to be a prominent feature of their society.

The fourth part of the Van der Peet analysis requires the Court to consider whether reasonable continuity exists between the pre-contact practice and the contemporary claim. I have considered the evidence of continuity of fishing as it evolved into commercial fishing.  The plaintiffs have proven that Nuu-chah-nulth people have continued until recent decades to fish.  That fishing activity has at times been done as wage work, and at times on a commercial basis.  The evolution of the modern fishery is discussed in more detail in the infringement section of this judgment.  Suffice it to say that there is ample evidence from which to conclude that the plaintiffs have proven reasonable continuity between the pre-contact practice of fishing and trading that fish, and their contemporary claim.

With respect characterization (the first part of the Vanderpeet test) the court acknowledged that it must incorporate some contours or limitations reflective of aboriginal practice at contact (444),  In doing so it found that:

1.  Ancestral practices translate into a broader modern entitlement than “exchange for money or other goods” (defined as small scale sale outside of the commercial market) (486);
2. Harvest and sale of fish to “sustain the community is not a viable characterization, as it incorporates the notion of a minimum guarantee (482);
3. Sale is not for the purpose of accumulating wealth (para 486);
4. The right does not extend to a modern industrial fishery or to unrestricted commercial sale (para 486);
5. The right applies to any species of fish (para 489);
6. The right should ultimatlely be characterized as simply  “the right to fish and sell fish” with further limitations on scope to be done within the justification analysis(487).

Title

Given its findings on aboriginal fishing rights, the court found it unnecessary to make a decision on title.

Infringement

After a lengthy review of the evidence, the court concluded the following with respect to infringement:

I pause here to acknowledge that to the extent that some aboriginal fishers have been able to continue in the fishing industry with some economic success, it could be argued that the regulatory regime is not the cause of the lack of aboriginal participation. Undoubtedly, factors that I have described above, including the collapse of the salmon stock, changes in equipment, the reduction in the price of fish, the closure of local fish buying businesses, environmental factors, international treaties, and conservation imperatives have all contributed to drive the plaintiffs out of the fishing industry.

The licensing regime is not entirely responsible for the plaintiffs’ non-participation in the fishery. I have mentioned several times, however, the evidence that there are now only three or four full-time Nuu-chah-nulth fishers compared to 70 or 80 who fished in 1992. I concluded that as late as the early 1990s and possibly up until the collapse of the salmon fishery in 1995, there remained a somewhat active Nuu-chah-nulth commercial fishing fleet. The point I make is that if the fishery had remained as healthy and abundant as in previous decades, the Nuu-chah-nulth may have been able to compete, even within the existing licence regime. Put another way, there are other causes besides the impugned regulatory regime for the lack of Nuu-chah-nulth participation in the WCVI fishery. In my view, however, it is sufficient for the present analysis that the plaintiffs have proven that the regulatory regime as it currently exists prevents them from exercising their aboriginal rights by their preferred means through the imposition of unreasonable limitations that create undue hardship for them. That is not altered by the fact that the regulatory regime has evolved over time in response to such factors as changes in the fishery, conservation requirements and advances in scientific knowledge.

It is indisputable that the plaintiffs cannot fish and sell their fish as they previously did, in part, because of Canada’s regulatory regime. It is impossible for the plaintiffs to pay the large amounts the market sets for licences, and they are simply unable to compete in an economically sustainable way in the non-aboriginal fishery under the present regulatory regime. I am satisfied of that evidence.

Canada’s stated policy of encouraging economic opportunity in the fisheries for First Nations is constrained by its view that any such commercial fishing opportunities must not be at the expense of non-aboriginal fishers.

The plaintiffs assert in this lawsuit an aboriginal right to sell their fish commercially. Although Canada has many programs designed to enhance commercial fishing opportunities for aboriginal fishers, fundamentally Canada does not recognize the right of those fishers to fish and to sell their fish commercially as an aboriginal right. Canada argues that the plaintiffs are the beneficiaries of these special programs that protect and enhance their participation in the commercial fishery. However, I am satisfied that these programs have been largely ineffective in assuring the plaintiffs’ reasonable participation in accordance with their preferred means in the commercial fishery. Indeed, those programs have not succeeded in maintaining even a modest native commercial fishery.

 I conclude that the plaintiffs have proved that Canada’s fisheries regulatory regime prima facie infringes their aboriginal rights to fish and to sell fish by their preferred means, both legislatively and operationally. I exclude the clam fishery and the FSC fishery from this conclusion. [786-790]

With respect to clams, the court concluded that there had been no infringement, despite the fact that there had been no formal recognition by DFO of an aboriginal right to harvest and sell clams [756, 804].

Food Social and Ceremonial Fishery ("FSC")

With respect to FSC claims, the court found that "DFO" policies with respect to the FSC fishery cumulatively guard against unstructured discretion and provide appropriate guidance for decision makers" [825]. Based, in part, upon evidence that current allocations were not being caught, the court found that there had been no infringement of FSC rights.

Justification

With respect to justification, the court stated that Gladstone is clear that in order to satisfy the doctrine of priority in the context of an aboriginal right without internal limitation, the Government must take into account the fact that the aboriginal group has a constitutionally protected right (862, 874). Given the Vanderpite decision, it was not unreasonable for the Government to have assumed that the NCN did not have a constitutionally protected right to sell fish. Also, at trial the Plaintiffs' lead no evidence re the level of participation in commercial fishery that would be sufficient (871). As a result of this, Canada did not have factual context in which to  demonstrate minimal impairment (891, 843-4, 848).  Accordingly, it would be unfair to hold that Canada  has failed to justify its prima facie infringement without first providing the parties an opportunity to consult and negotiate based upon the court’s findings of fact. A period of two years was granted for the parties to consult and attempt to negotiate an appropriate level of accommodation of the Plaintiffs' constitutional right to fish and sell fish. 

To help guide such negotiations and for the purpose of any further legal proceeding in the event that negotiations fail, the court provided the following  list of  legislative objectives and societal interests that the Government may take into account when regulating the fishery (881-3):

a.         conservation and sustainability of fisheries resources;

b.         protection of endangered species;

c.         establishing priority for aboriginal FSC fisheries after conservation;

d.         health and safety of the fishers and consumers;

e.         adherence to international treaties;

f.          facilitation of aboriginal participation in the fisheries;

g.         pursuit of economic and regional fairness including the participation in the fisheries by other aboriginal groups and recognition of the historic reliance upon and participation in the fisheries by non-aboriginal groups;

h.         achievement of the full economic and social potential of fisheries resources; and

i.          safe and accessible waterway.

 The court also made some other additional findings including:

1. Depending on health and abundance of fish stocks, Canada may be able to justify considerable constraint (875);
2. Consultations by DFO have been comprehensive and thorough. (877);
3. Since Fisheries management is extraordinarily complex, Canada’s approach to management should be afforded considerable deference (879).

 

Offences - Search and Seizure

R. v. Grant, 2009 SCC 32 [link]

This is a non-fisheries decision that purports to provide a new analytical framework for (1) determining whether or not there has been a detention for the purpose of ss. 9 and 10(b) of the Charter; and (2) determining whether or not to exclude illegally obtained evidence under s. 24(2).

With respect to its application to fisheries cases, at paragraphs 78 and 113-14,  it is  similar to the fisheries case of R v. Fitzpatrick [1995] 4 S.C.R. 154 (paragraphs 49-51) [link] with respect to its emphasis on the expectation of privacy as a matter to be considered under the  s. 24(2) analysis. In particular, at stage two of the newly formulated test, expectation of privacy is one of the factors to be considered in assessing the impact of the impugned state conduct on the interest protected by the infringed charter right.  Given the court's reference to R. v. Buhay 2003, SCC 30 [link] at para. 113, it would appear that reasonable expectation of privacy is also still relevant to the issue of whether or not there has been a breach of the s. 8 right against unreasonable search.

Offences - Misc. - Possession of V-notched Lobster - Ultra Virus - Unconstitutionally vague

R. v. Tibbo, 2009 CanLII 28877 (NL P.C.) [link]

This case involved a charge of failing to comply with a licence condition requiring fish harvesters to return to the water any lobster that have previously been marked  with a V notch so as to show that they are capable of spawning. At a pre-trial application, the licence conditions were challenged as (1) being ultra virus and (2) being so broad and vague as to violate the principals of fundamental justice as guaranteed by s. 7 of the Charter.

In rejecting the first argument the Court noted that since s. 22(1)(b) of the Fisheries Act allows licence conditions to restrict the gender of fish taking of fish by gender, "it follows logically that the Minister has the legal authority to prohibit the taking of one fifth of those female lobster . . ." (para. 49).

In rejecting the second argument, the court applied the gross disproportionality test from R. v. Clay, 2003 SCC 75 to find that:

It is difficult to conclude, on the evidence before this Court, that the requirement, by licence condition, that lobster fishers return ten percent of the lobster catch (being marked breeders) to the sea to encourage conservation, as part of a demonstrated and admittedly successful conservation program, is “grossly disproportionate”. On the contrary, it accords with the DFO mandate of conservation of the fishery. [para. 54]

Offences - Search and Seizure - Waiver of Right to counsel

R. v. Boudreau, 2009 NSPC 26 [link]

This case involved a motion during a trial to exclude a statement made by the accused to a fisheries officer.  Prior to the making of the statement the accused had been given a Charter warning and had advised that he did not want to call a lawyer "at this time". Based upon the  British Columbia Provincial Court decision of R. v. Liddell, [2008] B.C.J. NO. 947, defence counsel argued that the words not "at this time" did not amount a waiver.  The Nova Scotia court refused to follow the B.C. court and held that there had been a valid waiver.

The court also rejected an argument that the accused must be offered access to a lawyer with expertise in fisheries matters.

Offences - Misc. - unmarked gear - definition of "Fishing Gear" - amendment of Information at trial

R. v. Beck, (2009) NWTSC 26 [link]

This case involved a accused charged with "[o]n or about September 19, 2006 . . . [d]id set unmarked fishing gear . . .". At trial, the Trial Judge refused an application under s. 601(3) of the Criminal Code to amend the Information to insert the words "operate or leave unattended" after the word "set".  He did so on the grounds that granting the amendment would irreparably prejudice the accused who would have cross examined differently had he known operation of the fishing gear was at issue. As a result, the Court  acquitted on the basis that the Crown failed to prove that the net had been "set" within the limitation period. The trial judge also acquitted on the grounds that the nets at issue were not "fishing gear" with the meaning of the s. 27 of the Fishery (General) Regulations.

Upon summary conviction appeal, all of the above described issues were raised as grounds of appeal.

With respect to the amendment issue, the Summary Conviction Appeal Court found that the applicable section of the Criminal Cord was s. 601(2) (amendments to conform to evidence) rather than s. 601(3) (cure a defect). Since s. 601 (2) was a discretionary rule, it attracted a more deferential standard of review than a decision under s. 601(3). After applying the palpable and overriding error standard, the Appeal Court refused to overturn the Trial Court's finding of irreparable prejudice. 

With respect to the limitation period issue, the Court applied R. v. West Fraser Mills Ltd., (1994), 13 C.E.L.R. (N.S.) 1 (B.C.C.A.) to hold that under s. 82 of the Fisheries Act, in the absence of a certificate from the Minister of Fisheries stating the date when he or she became aware of the offence, the two year limitation period starts to run as of the date of the offence. Accordingly, since there was no certificate from the Minister entered into evidence, the Appeal Court upheld the Trial Court finding that the Crown had failed to prove the gear was set within the two year limitation period.

With respect to definition of "fishing gear", after reviewing the French text of the Regulations, the court concluded that the term "fishing gear" included fishing nets. However, given the finding on the amendment issue and limitation period issue the acquittal was not overturned.

Offences - Misc. - Adjournment of Trial

R v. Ramalheira, 2009 NLCA 4 [link]

This case involved charges against the Master of a foreign fishing vessel under the Coastal Waters Protection Act. After several trial adjournments, the Provincial Court refused an adjournment based upon the alleged poor health of the accused in part because the medical report in support of the application was "scant at best" and given the numerous prior adjournments and the passing of time it was in the public interest to have the trial proceed. Since appeals of interlocutory orders are not normally allowed in criminal proceedings, the accused brought an application for prohibition and certiorari in aid, which was denied by the Trial Division court. Upon further appeal, with one judge dissenting, the Appeal Division court upheld the Trial Division judgement and refused the application for review. The reasons for doing so included: (1) the fact that this was a regulatory offence rather than a criminal offence where the consequences of a conviction for the accused were not as far reaching; (2) since the fishing vessel was continuing to fish in the area, there would  presumably be other crew members available who could testify; and (3) "undoubtedly there are various data recordings (notably GPS) that modern vessels maintain" (para. 17).

The dissenting judge disagreed  that regulatory offences should be treated differently and suggested that if Parliament intended such proceedings to proceed in rem (against the ship itself), it would have provided for such a proceeding within the legislation. (para. 41).

Constitutional/Practice/Torts - Bar to Litigation in Newfoundland Workplace, Health, Safety and Compensation Act

Ryan Estate v. Universal Marine (Ryan's Commander), 2009 NLTD 120 [link]

Taxation - Fishing Income of Aboriginal Fisher

Aboriginal Rights and Defences - Fishing Income

Ballantyne v. R., 2009 TCC 325 [link]

This case involved an aboriginal fisher who fished off reserve, but delivered his fish to and on reserve fishing co-operative that acted as agent for off reserve fish marketing company. The Tax Court ruled that the fishing income was not exempt from taxation.

Offences - Forfeiture

R. v. Craig, 2009 SCC 23 [link]

This is a non-fisheries case where the Supreme Court of Canada ruled that for offences under the Controlled Drugs and Substances Act the totality approach should not be applied. 

Practice - Bankruptcy and Insolvency Act s. 38 - Proceedings after Discharge  Against Fishing Licence not Listed in Disclosure Statement

RE Burt Bankruptcy, 2009 NLTD 19 [link]

This case involved a fish company that had loaned money to an individual for the purchase of a fishing licence. The fish harvester made an assignment into bankruptcy, but did not list his fishing licence as an asset. Despite a request by the fish company, the Trustee in Bankruptcy refused to take legal proceedings against the licence. Based upon an apparent consent received from an encumbrance holder and the court taking judicial notice of the fact that "commercial fishing licences can be sold to satisfy outstanding debts and judgements and the Department of Fisheries and Oceans Canada DFO will issue new licences if it receives the appropriate documentation relinquishing and requesting re-issuance of fishing licences ..." the court granted an order under s. 38 of the Bankruptcy and Insolvency Act allowing the fish company to take proceedings against the discharged bankrupt. The court also enjoined the bankrupt from disposing of its licence pending completion of the legal proceedings to be commenced by the applicant against the licence.

Editor's note:  For a related proceeding where the Superior Court confirmed the Bankruptcy Court order enjoining the Bankrupt from selling its licence see:  Beothic Fish Processors ltd. v. Burt, 2009 NLTD 65 [link]

Aboriginal - Judicial Review - Oral History

Judicial Review - Admission of supplementary affidavits of Aboriginal Oral History

Gwasslaam (Geroge Phillip Daniels) v. Canada (Fisheries and Oceans), 2008 FC 912 [link]

This case involved a claim to an aboriginal fishing right.

In an application under Federal Court Rule 312 to admit supplemental affidavit evidence of oral history, the Prothonotary denied the application primarily on the grounds that the  evidence of oral history was available at the time the application was filed. Upon appeal from a decision of a Prothonotary, the court ruled that it was "in the interests of justice that available evidence with respect to the state of the oral history underlying the Aboriginal claim at the heart of the Application should be available to aid the judge deciding the Application." (para. 13).

Judicial Review Crown Liability - Extension of time to File application arising out of Larocque decision - Availability of order of Mandamus to return funds held by the Crown

Chiasson v. Canada (A.G.), 2008 FC 616, 295 D.L.R. (4th) 744 [link]

This case involved an agreement reached between the Minister of Fisheries and the Association des Pescheurs de Poissions de Fond Acadiens Inc. ("APPFA") whereby the Minister would issue a snow crab fishing licence to the APPFA with an allocation of 1000 metric tons in exchange for an agreement from the APPFA to pay the Minister $1,500,000 to be spent on certain management related projects. On June 23, 2006, after the APPFA had paid the money to the Minister, the Federal Court disallowed a similar arrangement in the case of Larocque v. Canada (digested herein). At this point in time the Minister had already spent $477,326 of the funds.  Subsequent to the release of the Larocque decision the Minister stopped using the funds and instead used public funds for the management of the fishery.

The court addressed several issues, including:

1) Whether the 30 day deadline for judicial review should be extended;

2) Should a declaration be made that the Minister is illegally holding funds; and

3) Availability of an order of mandamus for the return of funds.

With respect to the first issue (extension of the limitation period), after reviewing the applicable authorities the court granted an extension as the Crown would suffer no prejudice and "[f]iling an application for judicial review in April or May 2006, before the Court of Appeal had rendered its decision in Larocque, would have been a waste of judicial resources. The state of the law in April 2006 was such that Mr. Justice de Montigny held in Larocque, 2006 FC 694 . . . at the trial level, that the program for issuing fishing licences fell within the Minister’s authority under section 7 of the Fisheries Acts."

With respect to the second issue, the court made a declaration that the Minister "illegally used or sold 1000 metric tons of snow crab to finance departmental research activities and is illegally holding the proceeds of the 2006 sale". In doing so, the court also cited authorities for the proposition that the government must obey the law (para. 33).

With respect to the third issue (mandamus), the court declined to make an order as the applicants had other recourses available to them, namely commencing a tort action in a superior court seeking damages (para 30).

Judicial Review - jurisdiction of Superior Court - whether action in contract and tort a collateral attack on jurisdiction of court

Torts -  whether action in tort and contract a collateral attack on jurisdiction of court -

Contracts -  whether action in tort and contract a collateral attack on jurisdiction of court

Andrews v. Canada (A.G.), 2008 NLTD 145, 854 A.P.R. 241, 278 Nfld & P.E.I.R. 241 [link]

This case involved a superior court action by a group of snow crab fish harvesters who alleged that they had a contract with the Minister of Fisheries  whereby they gave up their historic right to a proportionate share of a relatively large  increase in the total allowable catch of snow crab in the 1990's in exchange for a promise from the Minister of Fisheries that he or she would maintain their traditional catch levels at the 1988-93 levels unless conservation required an overall reduction in the total allowable catch below 1993 levels. As a result of alleged failures of the Minister to honour this commitment in 2000 and thereafter, this group commenced a superior court action alleging breach of contract or alternatively negligence. They claimed damages in excess of $23,000,000.

In an application by the Crown to strike the statement of claim, one of the main issues that arose was the whether or not the superior court had jurisdiction. The Crown argued that the action was a collateral attack on the exclusive jurisdiction of the Federal Court to hear matters of judicial review under section 18 of the Federal Court Act. The plaintiffs argued that there was concurrent jurisdiction under s. 17 of the Federal Court Act  and s. 21(1) of the Crown Liability Act. After reviewing a number of authorities including Genge v. Canada (A.G.), 2007 NLCA 60, the court  confirmed that since judicial review is not a pre-requisite for an action in contract or tort (see Genge para. 40), a court must determine the true nature of the application. In doing so, the court distinguished a number of cases cited by the plaintiffs such as Keeping v. Canada (A.G.), 2003 NLCA 21 as cases not involving the exercise of ministerial discretion. Since no contractual right to quota could exist until the Minister exercised his or her discretion each year to approve a quota, the true nature of the action was an attack on the Minister's discretionary power (para. 42).  Similarly, no negligence in entering into an agreement could be established that was independent of the Minister's exercise of discretion to approve quota. In characterizing the action as a matter of judicial review outside the jurisdiction of the superior court, the court concluded that "[w]here the allegations are fundamentally tied to the decision-making authority of the Minister, there is no room for an action in tort or contract because the impugned action was not independent from the exercise of ministerial authority" (para. 43).

Contracts - Illegality

Practice - Resulting trusts over Licences-

Hurley v. Power, 2008 NSSC 363 [link]

This case involved a claim by a plaintiff who allegedly paid $130,000 for a lobster licence.  Since DFO regulations prevented him from holding it himself, he arranged to have it held by a nominee who later sold it and kept the proceeds of sale. In an action against the various parties involved, the court refused to impose a trust over the licence because it had been sold and transferred to a purchaser who had no knowledge of the trust. Although the licence had apparently been purchased by the plaintiff with money obtained from illegal activities (illegal cigarette and alcohol sales), the court was prepared to grant judgement against the party who received the money (but no longer held the licence) because: 

In the case at bar, the ‘illegality’ upon which the Defendants would seek to rely refers to the source of Hurley’s funds [the plaintiff], and possibly to his failure to disclose their existence to a relevant authority - in other words, his ‘general depravity’.  However, the source of the purchase funds need not be established to prove the existence of the trust relationship arising between the parties in respect of the property purchased.  The underlying ‘illegal transaction’, if indeed one exists, is simply not relevant.

 Moreover, illegality should only exceptionally lead to such a severe consequence as the forfeiture of a person’s property, especially where that forfeiture would be in favour of a person who was a willing party to the illegality.’

 

Practice - Express trusts over fishing licences

Fleming Estate v. Fleming, 2008 NLTD 123, 854 A.P.R. 354, 278 Nfld. & PE.I.R. 354 [link]

This case involved a groundfish licence that was transferred by a father to one of six sons.  After his death, the father's estate commenced an action alleging that the licence was held pursuant to an express trust to hold it for the benefit of the holder's other siblings. After citing recent jurisprudence involving express trusts over fishing licences, the court declined to find a trust on the grounds that the the plaintiff failed to establish certainty of intention and certainty of object.

Contracts - Lease of fishing Licence - Calculation of Damages - injunctions; constructive trusts

 Genge v. Dredge, 2008 NLTD 172, 280 NFLD & P.E.I.R. 283 (Nfld & Lab. S.C.)

This case involved a dispute over the breach of an oral agreement to lease a shrimp fishing licence by way of failing to make the agreed upon lease payments. In granting judgement to the original licence holder, the court made a number of findings and orders including the following:

1. A fishing licence is an asset that is capable of being leased (para. 57;
2. Since the shrimp licence had become married to another licence, the court did not order specific performance of a term of the agreement requiring the licence to be transferred back to the original holder as the original holder would be unjustly enriched by receiving the licence that had become married the shrimp licence;
3. Since an injunction would prevent the licence from being utilized by either party, the court did not order in injunction;
4. The decision of the SCC in Saulnier v. Saulnier, 2008 SCC 58 "does not overrule and tends to support previous decisions . . . in which a s. 7(1) Licence has been considered property capable of being subject of a constructive trust;
5. A constructive trust was imposed by the court by way of order requiring the holder to the licence to hold the licence in trust for the original holder, prohibit the holder from transferring the licence to any other person other than the original holder or his estate and to transfer the licence to the original holder or his estate when and if DFO permits the licence to be transferred without being married to the other licence; and
6. A copy of the court's order is to be forwarded to the Area Licencing Administrator of DFO so that the constructive trust "may be endorsed or noted on DFO's records" (para 125).

Editor's note:  Carwell provided the neutral citation 2008 NLTD 292, however this citation does not appear to work on CANLII or on the Newfoundland and Labrador court website?

For other cases involving constructive trusts on fishing licences see also The “Wa Yas”  [1993] F.C.J. 909 (F.C.A.) affirming [1993]1 F.C. 36. and my article in the Fisheries Papers section of this web page entitled, “Licence Trusts”.

Constitutional - Jurisdiction over Salmon Aquaculture

British Columbia (Agriculture and Lands), 2009 BCSC 136 [link]

This case involved a challenge to the constitutional authority of the Provincial Government of British Columbia to regulate the aquaculture industry.   The challenge was brought by Alexandra Morton and a number of other interest groups including the Area E Gillnetters Association. Apparently the applicants believed that the existing Provincial legislation would "not protect the environment" and a successful challenge would cause the Federal Government "to fulfill its constitutional obligations" for the protection of the environment (para. 90).

After reviewing the current regulatory regime for aquaculture in British Columbia as well as the the Supreme Court of Canada case of  Canadian Western Bank v. Alberta, 2007 SCC 22, the court started its analysis by applying the pith and substance test to the challenged legislation. In doing so, a central issue was whether or not the aquaculture industry was a "fishery" so a to fall under the federal jurisdiction over fisheries under s. 91(12) of the Constitution Act. After reviewing a number of dictionary definitions of the word "fishery", the court found two concise dictionaries that included "rearing" in the definition.  The court also concluded that when fish farms harvest  fish from their pens that the fish are "caught". Based upon the dictionary  definitions and the court's own view of what the "man on the McDonald bus" would think, the court concluded that the term "fishery" as it appears in the Constitution includes fish farming.  Based upon its conclusion that aquaculture is a fishery, the court concluded that the management of aquaculture was with federal jurisdiction.

The court then went on to determine whether the provincial regulation could be upheld under the double aspect doctrine.  In doing so it concluded that although the Province had jurisdiction to manage  the land beneath the fish farms under s. 92(5) of the Constitution Act, this was not sufficient to give it jurisdiction to manage fish farms. With respect to property and civil rights under s. 92(13), although the Province has authority to regulate fish processing and labour relations applicable to the fishing industry, this did not extend to "regulation and protection of the fisheries" (para. 172). With respect to the Province's jurisdiction over agriculture (s. 95), given the courts conclusion that fish farming is a fishery, the court would not allow provincial regulation of the aquaculture industry under this heading.  It did suggest that the Federal Crown could  delegate some of the management functions to the Province by Order in Council as it has done with oyster regulation.  However, failing a proper delegation the provincial regulation could not be upheld under  the agriculture heading.

The court also rejected attempts to uphold the provincial regulations under the necessarily incidental doctrine and paramountcy doctrine. 

In a somewhat surprising move, despite the fact that the Federal Government is not currently regulating the aquaculture industry to any great degree and the fact that the Federal Government chose not to participate in the proceedings (see quote from Kitkatla para. 72-3 in Jim Pattison [link] at para. 207), the court  applied the now disfavoured interjurisdictional immunity doctrine to hold (as an alternative finding) that the provincial laws constituted an "interference with the core of a matter within the exclusive jurisdiction of Parliament . . " (para. 190).

The end result was that the court declared all of the challenged legislation either  invalid, or inapplicable to the aquaculture industry except to the extent that it purported to regulate the cultivation of marine plants. The court also  suspended the implementation of its judgement for 12 months in order to give the Federal Government time to enact legislation to fill the gap left by the provincial legislation declared invalid and inapplicable.

Constitutional - Validity of Provincial WCB regulations

Employment Law - Provincial Undertakings

Jim Pattison Enterprises et al. v. British Columbia (Workers' Compensation Board), 2009 BCSC 88 [link]

This case involved a challenge to the constitutional validity of occupational health and safety regulations relating to commercial fishing vessels enacted pursuant to the British Columbia Workers' Compensation Act.  It involved one vessel that fished primarily in waters outside the British Columbia jurisdiction, but within Canadian territorial waters as well as other vessels that fished more than half their time beyond the territorial jurisdiction of Canada. Based upon extensive evidence of overlapping regulations from both Transport Canada and Work Safe BC, the court relied primarily upon Canadian Western Bank v. Alberta, 2007 SCC 22 (digested herein) to uphold the validity of the provincial legislation.  In declining to apply the paramountcy doctrine the court stated as follows:

Clearly there is considerable overlap and potential for confusion, as stated in the expert opinion evidence filed by the plaintiff.  It is possible that compliance with both regimes will be difficult and expensive.  However, it has not been shown that it is impossible to comply simultaneously with the CSA and its regulations and with the WCA and the OH&SR, properly interpreted, or that there are provisions of one law forbidding what the other law requires.  This case is not like Lafarge, where it was impossible to comply simultaneously with both laws as the Supreme Court interpreted them.  (para. 162)

The court did, however, state that if the Provincial legislation had imposed stability requirements, rather than simply require the provision of stability documents, it would have found an operational conflict so as to find the conflicting Provincial legislation inoperative pursuant to the paramountcy doctrine.

Similarly, with respect to the interjurisdictional immunity doctrine, the court followed R. v. Mersey Seafoods, 2007 NSSC 155 (digested herein) to find that the legislation did not impair "the core of federal competence over navigation and shipping" so as to be inapplicable. In doing so, it also found that the fishing companies that brought the court applications were not federal undertakings because their vessels did not "play any role in connecting British Columbia with any other country or province, or . . . provide shipping services to offshore destinations" or enter ports other than B.C. ports. Since they were not federal undertakings, it was not necessary for the court to determine whether the provincial regulations impaired a vital or essential part of a federal undertaking.

Editor's note:   In the context of deciding whether or not the fishing companies were federal undertakings or provincial undertakings, the court provided a good review of the jurisprudence regarding that application of provincial and federal labour laws to shipping. See also paper discussing this case [link].

Judicial Review/Crown Liability

Aboriginal Rights/Defences

Nunavut Wildlife Management Board v. Minister of Fisheries and Oceans et al., 2009 FC 16 [link]

Barry Group, a Canadian Fishing Company, sold 1900t of turbot quota to two other offshore fishing enterprises for in excess of $10 million. The Minister approved the transfer in late January 2008 and after completing the usual searches, the purchasers completed the transaction in early March 2008, more than 30 days after the Minister’s decision. On March 14, 2008, the Nunavut Wildlife Management Board (“NWMB”) filed an application for judicial review, on the grounds that it was not adequately consulted. On its face, NWMB would not appear to be a party directly affected by the quota transfer approval decision, however the court held that it was and that the application was not beyond the normal 30 day time limit for such applications because NWMB was not aware of the decision until Feb. 18, 2008. None of the commercial parties had any notice of the NWMB interest until they received notice of the application for judicial review.

However, given new concerns raised by the applicant, the Court  held that in the future  the Minister should broaden his or her consultations with NWMB so as to give the Nunavut an opportunity to explore the possibilities of purchasing  quota from quota holders that no longer wished to remain in the fishery.

Fisheries Practice - PPSA - Bankruptcy - Whether or Not Fishing Licence is Property for the Purpose of  PPSA and Bankruptcy and Insolvency act

Saulnier v. Royal Bank of Canada, 2008 SCC 58 [link]

This case involved the holder of a lobster licence, a herring licence, a swordfish licence and a mackerel licence, the combined value of which exceeded $600,000. Upon the holder of the licence making  an assignment into bankruptcy (after being placed in receivership by the bank), an application was made by the Royal Bank for a declaration that these fishing licences were intangible personal property so as to be encumbered pursuant to a general security agreement granted by the licence holder to the bank under the Nova Scotia Personal Property Security Act (PPSA).  Since the value of the licences was sufficient to cover more than just the debt owed to the Bank, an application was also made by the Trustee in Bankruptcy seeking a declaration that  the licences were property for the purposes of the Federal Bankruptcy and Insolvency Act (BIA).  This would give the Trustee the ability to require the bankrupt to execute a transfer of the licences to a purchaser.

Judicial History

At trial, the court accepted evidence that these licences had a high commercial value, were regularly bought and sold, and sometimes accepted as security by financial institutions. After reviewing authorities including some obiter (non binding comments) of the Ontario Court of Justice as affirmed by the Ontario Court of Appeal  in  Sugarman v. Duca Community Credit Union (1988), 13 P.P.S.A.C. (2d) 117, affirmed (1999), 44 OR. (3d) 257 (Ont. C.A.), National Trust Co. v. Bouckhuyt (1987), 7 P.P.S.A.C. 273 (Ont. C.A.) and F.A.S. Seafood Producers Ltd. v. Her Majesty the Queen 98 TTC 2034 (digested herein),  the Court concluded that "it is not necessary that the holder have the complete power of exclusion [as suggested in Bouckhuyt] to allow those rights to be property in the real and practical context" (para. 48 of trial level decision as quoted at para. 10). On the basis of this conclusion the court declared that the licences were intangible property for the purposes of the PPSA and property for the purposes of the B.I.A. (see 2006 NSSC 34)

Upon appeal, the appeal court rejected the trial judges finding that the licence holder had a property interest in the licence based upon the commercial reality of licences being treated as property.  It held that the proper approach was to review the definition sections of both the BIA and PPSA.

With respect to the BIA, the court followed earlier decisions such as Re Bennett (1987), 67 C.B.R. (N.S.) 314 to hold that a licence holder's interest in earnings from a subsisting licence during its annual term were rights that could be assigned to a trustee in bankruptcy (para 378). With respect to a licence holder's right to future renewals of a licence, after reviewing a number of authorities that limit the discretion of the Minister of Fisheries to issue licences under s. 7 of the Fisheries Act, the court concluded that the licence holder's "rights to apply for, and resist an arbitrary denial of, a renewal or reissuance of his license are [intangible] 'property' passing to the trustee under each of ss. 67(1)(c) and 67(1)(d) of the BIA.' (para. 55). Accordingly, under s. 158(1) of the BIA, the licence holder was required to sign documents required by the trustee in bankruptcy to re-designate the licence to the trustee's designate.

With respect to the PPSA, for similar reasons, the court found that the licence holder's rights to the fishing licence were intangible property for the purposes of that Act.  (see 2006 NSCA 91)

Decision of the Supreme Court of Canada

Upon further appeal to the SCC, the court conducted an analysis of the different approaches taken by the courts to the issue of whether or not a licence is property for the purposes of the BIA and PPSA.

When reviewing the traditional property approach, the court endorsed the movement to restrict Bouckhuyt to its facts and "consider traditional common law notions of property as less of a stumbling block . . ." The court also noted that a licence to fish is similar to a "profit of piscary" (a type of profit a prendre) which could be a type of "profit" referred to in the definition of property in s. 2 of the BIA. (para. 26-35)

When reviewing the regulatory approach, as adopted by the Sugarman case, the court was unable to find sufficient fettering of the Minister's discretion to convert a fishing licence into a property right. (para. 36-40)

When reviewing the commercial  realities approach as adopted by the trial judge in Saulnier, although the court recognized that fishing licences have a commerical value (para. 23-4), it was not prepared to adopt this approach. (para. 41-2)

Preferred Approach

With respect to the BIA, the court noted that the definition of "property" was very broad with the "intention to sweep up a variety of assets of the bankrupt not normally considered 'property' at common law". This broad definition includes "any type of property . . . and profit . . . arising out of or incident to property".  As such, "a licence to participate in the fishery coupled with a proprietary interest in the fish caught" would fall within the scope of that definition. (para. 43-9)

With respect to the Nova Scotia PPSA, the court noted that its purpose was to "enable holders of personal property to use it as collateral, and to enable lenders to predict accurately the priority of their claims against the assets in question (para. 19). As with the BIA, the court  found that the definition of personal property, including intangible personal property, was sufficiently broad so as to include "a licence coupled with an interest at common law" (para. 50).

In response to concerns raised by the Attorney General of Canada, the court rejected the notion that the treatment of a fishing licence as property for the purposes of the BIA and PPSA could be raised in future litigation so as to fetter the Minister's discretion.

Editor's notes:

Beware that not all PPSA legislation has the same wording.  For example in the British Columbia PPSA [link], the the term “intangibles” as defined by the Act includes a "licence", that is further defined to "mean" a right to harvest timber or Christmas trees. Query whether this definition excludes other types of licences?

See Also: Article dealing with the trial level decision.

For other cases involving the treatment of fishing licences upon bankruptcies see:  Dugas (Re Bankruptcy) 2004 NBCA 15 (digested herein); Re Bennet (1988), 67 C.B.R. (NS) 314 (B.C.S.C.); Waryk v. Bank of Montreal (1990) 80 C.B.R. (N.S.) 44 (B.C.S.C.); Caisse Populaire de Shippagan Ltee v. Ward [2000] N.B.J. No. 378 (N.B.Q.B.); Careen v. Fewer & Strathie Ltd. 2003 NLCA 33 (digested herein).

Offences - Misc. - Definition of "Fishing"- Requirement for Dockside Observer when transferring Fish to another vessel at Sea

R v. Fitzpatrick, 2009 CANLII 2686 [link]

This case involved a father and son with long line crab fishing vessels who fished together.  Since only the father's vessel was equipped with a power hauler, they surreptitiously used the father's vessel for hauling both sets of traps and then transferred some of the crab to the son' s boat to be landed by the son. Applying the broad definition of "fishing" from the Frederich Gerring Jr. (1807), 27 S.C.R. 271 and other cases, the court held that when the father was hauling his son's gear he was fishing.  Since he was not licensed to fish that gear, he was fishing illegally.  In addition, when he transferred the fish that he had hauled at sea to his son's boat, he breached a licence condition that require him to have a dockside observer present when offloading crab.

 Aboriginal rights and Defences - Treaty Rights

R v. Cardinal, 2009 ABPC 77 [link]

In this case, the court rejected a long list of defences based upon the inter-relationship between Treaty 6 rights and the Natural Resources Transfer Agreement ("NRTA"). With respect to the interjurisdictional immunity doctrine, the court concluded that since the Provincial hunting and fishing laws could not go the the "core of Indianness" because their Treaty right to sell fish was extinguished by the NRTA. 

Offences - Misc. - disclosure

Aboriginal Rights and defences - disclosure

R. v. Boudreau, 2009 NSPC 7 [link]

This case involved charges of illegal fishing  for snow crab pursuant to Aboriginal Communal Fishing Regulations. When defence council discovered that the Band Council of the First Nation that that issued the Communal Fishing licences had  discussed the case with several Government officials, including enforcement officers, he sought production of any reports and/or e-mails resulting from that meeting.

After reviewing the applicable jurisprudence the court held that since the Crown was unaware of any further information being in existence, this was a situation where the onus was on the defence prove that "there is in existence further material that is relevant" (para. 21). With respect to the existence of  evidence, the court ruled that he accused had failed to establish the existence of any such evidence.  With respect to relevance, the court held that even if documentation existed, it would not be relevant because the discussions at the meeting related to (a) what was required of the Band to prevent similar offences occurring in the future, and (b) the impact of the seizure of fish seized from the accused on the Band's seasonal fish quota.

Offences - Misc. - Admissibility of statements made to Fisheries Officers during Investigation

R v. Barrett, 2008 NLPC 36144 [link]

This decision  involved the admissibility of statements made by four seal harvesters to DFO officers in the course of an investigation on charges related to illegally selling blue back seal pelts. In each case, the accused harvesters were contacted by telephone and then interviewed by Fisheries Officers in the front seat of DFO vehicles parked in front of their homes.

At a voire dire  hearing to determine the admissibility of these statements, the court declined to rule them inadmissible as a breach of the Charter because it was not established that the harvesters were detained.

With respect to the issue of whether or not the statements were voluntary, the court noted that the Crown had the onus to prove the statements voluntary. In this regard, at trial the fisheries officer had difficulty recalling the  the interviews that had occurred approximately ten years previously.  In addition, there were no notes except for copies of the Charter type warnings that had been annotated and initialled. In this case some, but not all the answers were initialled. In the case of answers that were marked with a check mark but not initialled ("Do you want to speak to counsel"), the court was not prepared to accept a bare check mark as evidence that the warning had been given and waived.

On the basis of this evidence, the court ruled that the Crown had not satisfied the onus of establishing that the statements were voluntary.

Aboriginal Rights and Defences - Pilot Sales Licence Issued Under Aboriginal Communal Fishing regulations - Not a violation of S. 15 of the Charter of Rights

R. v. Kapp, 2008 SCC 41  [link]

Aboriginal Rights and Defences - Aboriginal Commercial Fishing Rights and Fiduciary Duty

Lax Kw'alaams Indian Band v. Canada (AG), 2008 BCSC 447 (link)

Aboriginal Rights and Defences - Justification for interference with Fishing Rights

R. v. Tommy, 2008 BCSC 1095 [link]

This case involved a number of charges of illegal fishing by members of the Cheam Firt Nation on the Fraser River. With respect to some of the charges,  the court ruled the Crown failed to justify closing aboriginal fishing on the Fraser River at a time while the recreational fishery was still open. With respect to other charges the Crown held that the Crown's closures were justified despite failure to have bilateral consultations because the Cheam failed in their reciprocal duty to participate in consultations in good faith. In addition the court said that "[t]he courts cannot be expected to micromanage the complex and dynamic task of planning, coordinating and allocating fisheries amongst a variety of user groups." [para 117]. The court also confirmed that sustainability is a valid legislative objective (para. 57). For similar companion cases where the Crown was entirely successful see R. v. Douglas, 2008 BCSC 1097 [link] and R. v. Aleck, 2008 BCSC 1096 [link].

Judicial Review/Crown Liability - Standard of Review

Dunsmuir v. New Burnswick 2008, SCC 9 (link)

Although this is a non-fisheries case, it is listed because it is a SCC decision that has made a significant change to the standard of review to be applied in judicial review proceedings.  As a result of this case, there will now only be two standards: (1) correctness and (2) reasonableness.

Aboriginal Rights and Defences - Judicial Review of Decision to Limit lobster catch permitted under Aboriginal Communal Food and Ceremonial Fishing Licence - Consultation requirements

Native Council of Nova Scotia v. Canada (Attorney General), 2008 FCA 113

This case involved an application for judicial review of a decision of the Minister of Fisheries to limit the permitted lobster catch under an Aboriginal Communal Food, Social and Ceremonial Licence issued to the Native Council of Nova Scotia ("NCNS"), a society that was created for the purpose of "assisting and giving a collective voice to Mi'kmaq and other Aboriginal persons living 'off-reserve' in Nova Scotia" (para. 7). The fishing licence in question, had been issued pursuant to a harvest plan negotiate as part of a "Aboriginal Fisheries Arrangement" negotiated between DFO and NCNS.

As a consequence of concerns over poaching occurring under the guise of the fishing permits issued pursuant to the fishing licence and after some consultation, DFO modified the Licence to impose a 20 trap per person per day limit.

At the hearing the three over-lapping issues were raised:

1) Administrative law issue (procedural fairness);

2) Constitutional issue (s. 35 duty to consult); and

3) Contractual issue.

With respect to the constitutional issue, the trial level court ruled that the applicant had failed to establish the breach of a duty to consult for a number of reasons including the following:

a) Not all of the members of the NCNS had an aboriginal right to fish;

b) No aboriginal right was asserted in the applicants pleadings and the court was unable to imply one from the evidence presented;

c) One cannot meaningfully discuss accommodation or justification of a right unless one has some idea of the core of that right (quoted from Haida);

d) the duty to consult and accommodate does not guarantee aboriginal groups the outcome they desire (quoted from Haida);

With respect to the allegations of breach of procedural fairness, after reviewing the little evidence that was available, the trial level court concluded that NCNS had an opportunity to participate in the process of determining a course of action to address the poaching concerns.  Although the views of NCNS were not accepted, they were considered. Under the circumstances, this was adequate.

With respect to allegations that DFO breached the consultation requirement of the Aboriginal Fisheries Arrangement, the trial level court ruled that the agreement only required that the parties "attempt" to find a mutually acceptable solution to their dispute.  It did not impose a requirement that they "arrive" at a mutually acceptable resolution of their dispute.

Upon appeal, the decision of the trial level court was upheld based upon its reasoning with respect to items one and two above.