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These summaries are prepared by Brad Caldwell,
401-815 Hornby Street,
Vancouver, B.C.,
V6Z 2E6.
Telephone (604) 689-8894 E-mail: bcaldwell@admiraltylaw.com
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:
- 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);
- Harvest and sale of fish to “sustain the community is not a
viable characterization, as it incorporates the notion of a minimum
guarantee (482);
- Sale is not for the purpose of accumulating wealth (para 486);
- The right does not extend to a modern industrial fishery or to
unrestricted commercial sale (para 486);
- The right applies to any species of fish (para 489);
- 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:
-
Depending on health and abundance of fish stocks, Canada may be able
to justify considerable constraint (875);
-
Consultations by DFO have been comprehensive and thorough. (877);
-
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]
In this case, the Newfoundland Trial Division held that the statutory
bar to litigation in the Nfld. Workplace Health, Safety and
Compensation Act (WHSCA) is unconstitutional.
Ryan Estate v. Universal Marine
(Ryan's Commander) involved a claim by the estates of two crew
members of the fishing vessel Ryan's Commander that capsized off of
the coast of Nfld. in 2004. After commencing civil actions for
damages, an internal review specialist of the Work Health and Safety
Commission ruled that there was a statutory bar to
litigation because both the deceased and the defendants were workers
and the deaths occurred in the course of employment. Upon judicial
review, the Trial Division ruled that the statutory bar to
litigation in the WHSCA must be read down under the
interjurisdictional immunity doctrine because it impairs the federal
power to sue for damages under the Marine Liability Act.
In doing so, the court noted that the provincial WHSCA legislation
was in pith and substance an insurance scheme.
The court also held that the
provincial legislation could not be upheld under the paramountcy
doctrine.
Editor's note:
An article explaining the
interjurisdictional doctrine can be found on the Admiraltylaw.com
website at
http://www.admiraltylaw.com/fisheries/Papers/interjurisdictional%20immunity.pdf
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:
- A fishing licence is an asset that is capable of being leased (para.
57;
- 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;
- Since an injunction would prevent the licence from being utilized by
either party, the court did not order in injunction;
- 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;
- 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
- 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.
The Court held that the lack of consultation did not violate Article 15.3.4
of the Nunavut Land Claims Agreement
because the quota transfer did not affect the substance or value of the
Inuit harvesting rights and opportunities. As a result,
the Court did not overturn the Minister’s decision.
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.
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