Date:
20061018
Docket:
T-775-05
Citation:
2006 FC 1241
Montréal, Quebec, October 18, 2006
Present: THE HONOURABLE Mr. Justice Martineau
BETWEEN:
ASSOCIATION
DES CRABIERS ACADIENS,
duly
incorporated in accordance with the laws
of
the province of New Brunswick,
ASSOCIATION
DES CRABIERS DE LA BAIE,
duly
registered in accordance with the laws
of
the province of Quebec and
ASSOCIATION
DES CRABIERS GASPÉSIENS,
duly
registered in accordance with the laws
of
the province of Quebec
Applicants
-
and -
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants challenge the
lawfulness of the decision of the Minister of Fisheries and Oceans (the
Minister) to issue a fishing licence for snow crab (the fishery resource) for
2005 to the Acadian Groundfish Fisherman's Association (AGFA) authorizing it to
catch 480 metric tons (mt) of the fishery resource.
[2] The AGFA is a body corporate. It
has no vessels and its members are not snow crab fishers. Furthermore, it does
not meet the criteria of the Commercial Fisheries Licensing
Policy for the Gulf Region (the licensing
policy), which since 1996 has provided that new licences for vessels less than
19.8 m (65 ft.) in length overall cannot be issued to corporations. However, if
a licence has previously been issued in the name of a corporation, the licence
may continue to be issued in the name of that corporation under a grandfather
clause. Such is not the case in this instance.
[3] In 2005, the total authorized
capture (TAC) in the crab fishing areas (CFA) 12, 18, 25 and 26 in the Southern
St. Lawrence Gulf was set by the Minister at 32,336 mt. But the total fishing
quota includes a 480 mt allocation that the Minister set aside to finance the
additional activities of the Department of Fisheries and Oceans Canada (DFO)
that had been announced in April 2005. These were the following: surveillance
and monitoring of soft-shelled crab, trawl-net scientific survey, scientific
analysis, communication of information, increased surveillance of catches and
discussions on a long-term fishery resource management approach (the DFO
additional activities). DFO is solely responsible for the hiring of personnel,
purchase of equipment, signing of contracts and expenses associated with these
additional activities. However, under the agreement the Minister signed in
April 2005 with the AGFA, the latter undertook to pay the Minister a total of
$1,900,000 which was to be used to defray the salaries of the DFO employees,
the purchase of equipment, travel expenses, operating expenses and laboratory
expenses, training costs, costs related to marketing services and the
administrative costs associated with the additional activities of the DFO. To
enable the AGFA to fulfil its financial obligations to the DFO, a fishing
licence was accordingly issued to the AGFA by the Minister in April 2005.
[4] Following the issuance of its
licence in 2005, the AGFA offered the fishers a share in its 480 mt allocation,
at the price of $2 a pound, and subject to various other conditions (such as
the duty to sell the fishery resource to a processing firm designated by the
AGFA). The fishers who accepted this offer were subsequently designated as
“operators” under the AGFA licence (which was correspondingly amended by the
Minister).
[5] The applicants argued that there is
no provision in the Fisheries Act, R.S.C. 1985, c. F-14 (the Act) that
allows the Minister to set aside or allocate the fishery resource to anyone in
order to obtain some additional funding for certain DFO activities. The most
important tool he has in the performance of his duties is provided for in
section 7 of the Act, which gives the Minister discretion to authorize fishing
activity by granting fishing licences. The applicants submitted that the
Minister exceeded his authority in this case, however. The power to issue
licences was a management tool to be used primarily to control the fishing
effort in relation to species the fishing of which the Minister has chosen to
authorize. It would be unreasonable, they argued, to conclude that Parliament
intended to give the Minister authority to sell some fishery resource, which he
has a duty to manage, in order to procure financing.
[6] The
applicants further submitted that the DFO was subject to the Financial
Administration Act, R.S.C. 1985, c. F-11 (the FAA), like the other federal
ministers. Therefore, the costs associated with the measures contemplated by
the DFO for the proper management of the fisheries must be part of the budget
granted by Parliament. The applicants submitted that, if the Minister lacked
funds, he should have addressed his requests for funding to the Minister of
Finance. The Minister’s decision to set aside a snow-crab allocation for the
purpose of receiving $1.9 million to finance the DFO’s supplementary activities
was not based on any authority and is not consistent with any purpose provided
in the Act (Aucoin v. Canada (Minister of Fisheries and Oceans), [2001]
F.C.J. No. 1157 (QL), 2001 FCTD 800 at paragraphs 43, 45). Thus, by deducting
an allocation of 480 mt from the TAC, the Minister deprived each licensee
of this share of the TAC and indirectly imposed an additional charge on them.
[7] I agree with the applicants. The
Minister’s decision to set aside a 480 mt quota and issue a fishing licence to
the AGFA in April 2005 is contrary to the Act and ultra vires his powers
under the Act.
[8] It is not necessary to rely on the
fact that the issuance of a fishing licence to a corporation that is not
grandfathered is not covered by the licensing policy. As the Federal Court of
Appeal held recently in Larocque v. Canada (Minister of Fisheries and
Oceans), 2006 FCA 237, the Minister simply does not have the power under
the Act to finance DFO scientific research from the sale of snow crabs, and I
see no particular reason not to reach the same conclusion in the case of the
financing of the DFO’s additional activities that were the subject matter of
the agreement signed in April 2005 with the AGFA. In this case the Minister
allocated to the AGFA the 480 mt snow crab quota that he had unlawfully
appropriated for himself in order to finance the DFO’s additional activities.
It follows that the Minister exceeded his power under the Act by issuing a 2005
snow crab fishing licence to the AGFA in exchange for a payment of $1,900,000
to be used to finance the DFO’s additional activities from the moneys that the
AGFA has in turn obtained from the licensees who were designated as operators
under the AGFA licence.
[9] Neither section 7 of the Act, which
gives the Minister the authority to issue fishing licences, nor paragraph (d)
of the definition of “public money” in section 2 and subsection 21(1) of the
FAA, which allow the Minister to receive and use money for a purpose specified
in or pursuant to an Act, trust, treaty, undertaking or contract, which are
cited in this case by the respondent, confer legal authority on the Minister to
issue a fishing licence, enter into a contract or receive any sum of money for
purposes that are improper or unauthorized by the legislation. To repeat the
very words used by Mr. Justice Décary of the Federal Court of Appeal in the Larocque
case, supra, at paragraph 26, the Minister financed the DFO’s additional
activities “without first appropriating the funds necessary and by misappropriating,
for all intents and purposes, resources that do not belong to him.” In doing
so, the Minister “confused public funds and the public domain. Without
appropriating public funds he appropriated public domain. This cannot be.”
[10] Accordingly, I have decided to allow
this application for judicial review. It is therefore declared that the
Minister does not have the authority to appropriate the fishery resource for
financing purposes. Moreover, the issuance of a fishing licence authorizing the
capture of 480 mt of snow crabs in exchange for $1,900,000 to finance DFO
activities is contrary to the Act, and the fishing licence issued to the AGFA
by the Minister in April 2005 is declared invalid. The applicants will be
entitled to their costs against the respondent.
ORDER
THE COURT
DECLARES AND ORDERS:
1. The application for judicial review is allowed with costs
in favour of the applicants against the respondent;
2. The Minister does not have the authority to appropriate
the fishery resource for financing purposes;
3. The issuance of a fishing licence authorizing the capture
of 480 mt of snow crabs in exchange for $1,900,000 to finance DFO activities is
contrary to the Act, and the fishing licence issued to the AGFA by the Minister
in April 2005 is declared invalid.
Judge
Certified true
translation
François Brunet,
LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-775-05
STYLE OF CAUSE: ASSOCIATION DES CRABIERS ACADIENS,
duly
incorporated in accordance with the laws
of the province
of New Brunswick,
ASSOCIATION DES
CRABIERS DE LA BAIE,
duly registered
in accordance with the laws
of the province
of Quebec and
ASSOCIATION DES
CRABIERS GASPÉSIENS,
duly registered
in accordance with the laws
of the province
of Quebec
v.
ATTORNEY
GENERAL OF CANADA
PLACE OF HEARING: Fredericton,
New Brunswick
DATE OF HEARING: October
4, 2006
REASONS FOR ORDER
AND ORDER: The
Honourable Mr. Justice Martineau
DATED: October
18, 2006
APPEARANCES:
Brigitte Sivret FOR
THE APPLICANTS
SOLICITORS OF RECORD:
Brigitte Sivret FOR
THE APPLICANTS
Barrister & Solicitor
Bathurst, New Brunswick
John H. Sims, Q.C. FOR
THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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