This case involved an application by the Chief Percy Williams on behalf of the members of the Twicksutaineuk/Ah-kwa-mish Tribes for judicial review of a decision of the Minister of Fisheries to issue a Marine Mammal Predator licence to a fish farm for the purpose of killing of problem seals and seal lions.
As a preliminary matter, the court had to determine whether or not the tribe members had public interest standing. Upon reviewing the first of the three part test set out in Harris v. Canada [2002] 4 F.C. 37 (F.C.A.), the court ruled that the tribe members did not have public interest standing because they were not able to establish that they were likely to succeed on the merits of their application.
The Tribe essentially argued that the licence in question was not a “fishing” licence because it did not require the holder of the licence to use or exploit the fish that were killed. After reviewing the legislation in question and the relevant case law, the court rejected this argument. The court was of view that the act of fishing was complete once possession of the fish is obtained. As an example, the court referred to catch and release practices in the sports fishery where anglers catch fish with the specific intention of releasing them once they are caught.
Postscript: This decision was upheld by the Court of Appeal 2003 FCA 484