Date: 20050622
Docket: T-1004-05
Citation: 2005 FC 884
BETWEEN:
ESGENOÔPETITJ FIRST NATION, also known as
BURNT CHURCH FIRST NATION, being a Band within
the meaning of section 2(1) of the Indian Act as represented
by its Chief and Council
APPLICANT
- and -
JAMES B. JONES, REGIONAL DIRECTOR GULF REGION,
FISHERIES & OCEANS CANADA
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by the Minister of Fisheries and Oceans
RESPONDENTS
REASONS FOR ORDER
(Delivered orally from the Bench Tuesday, June 21, 2005.
Subsequently written for precision and clarification)
HARRINGTON J.
[1] The applicant, known in some quarters as the Burnt Church First Nation, was issued a fishing licence on 11 May 2005, pursuant to the Fisheries Act and the Aboriginal Communal Fishing Licences Regulations. It authorizes the Band to fish for lobster in the waters of Lobster Fishing Zone 23 which is defined in the Regulations and in the licence itself.
[2] The applicant in Court docket T-997-05, Jean Savoie, is not a member of the Band. He was issued an individual licence 19 May 2005 for Lobster Fishing Zone 23. There are many other fishers from different home ports who likewise hold fishing licences for this zone.
[3] The respondent, James Jones, is the Regional General Director, Gulf Region, Fisheries and Oceans Canada. He has varied fishing rights in Zone 23 purportedly pursuant to section 43(m) of the Fisheries Act and section 6(1) of the Fishery (General) Regulations.
[4] The applicants are seeking judicial review of those variation orders. In the meantime, they seek a mandatory injunction which would have the effect of striking down or lifting the orders.
[5] Mr. Jones' stated purpose was to create a one-kilometre buffer zone within Lobster Fishing Zone 23. He imposed this temporary measure (the season ends June 30th) in an effort to ensure public safety and to bring order to the fishery. In his affidavit, he relates a number of conflicts which have arisen over time between various fishing communities in Lobster Fishing Zone 23.
[6] There have been at least two instances leading to criminal charges and convictions; in one case, a jail sentence. Because of the destruction of personal property of some fishermen, a consent interlocutory order was issued by the New Brunswick Court of Queen's Bench last year. It has since expired.
[7] The Burnt Church First Nation has expressed great concern about safety in the area. This May 13th, they wrote to the Honourable Minister Geoff Regan of Fisheries and Oceans Canada. They and the village of Neguac, NewBrunswick, solicited his help to resolve what they call "regrettable conflicts created through disputes between lobster fishers", in regard to what they term "artificial boundaries and lines on water established by a minority of harvesters". These conflicts have existed for a number of years, with no sustainable or permanent solution in sight. Regulatory measures need to be adopted urgently to add support to the enforcement actions taken by Fisheries officers and the Royal Canadian Mounted Police.
[8] The RCMP appointed Gaétan Germain, an experienced officer, to act as a liaison for Fisheries matters in the Miramichi. He has also filed an affidavit in these proceedings setting out the problem as he saw it.
[9] The problem appears to be that some fishing communities claim that they alone are entitled to fish certain parts of Zone 23. There may or may not have been unwritten gentlemen's agreements from time to time, but tensions have arisen when other communities attempt to fish the claimed territories.
[10] There have been efforts by Mr. Jones and Mr. Germain to keep the peace, but the situation is highly volatile. That is the basis for Mr. Jones issuing variation orders which have the effect of creating a buffer zone. Lobster traps have been cut under the cover of night and it is very difficult to catch the perpetrators in the act. It is hoped that this Zone will help preserve peace and order.
[11] The applicants say they have the unfettered right to fish. Furthermore, the Band invokes its constitutional rights under s. 35 of the Constitution Act, 1982.
[12] That, in brief, is the scope of the underlying applications for judicial review of Mr. Jones' decisions. Before me, however, is an interlocutory motion for an injunction which, if granted, would have the effect of revoking the variation orders.
[13] As a preliminary point, objection was made to some parts of Mr. Germain's affidavit on the grounds that some of the allegations were vague and others were hearsay. That is true. However, I did not strike any part of his affidavit. There was no cross-examination on the affidavit, and in an interlocutory matter where time is of the essence, it was literally impossible to have first-hand information from everyone who possibly had something to say. I noted however that these comments would have some bearing on the strength to be given to the contents of the affidavit.
[14] The real purpose of the objection as I see it was to establish that the applicants are the victims of other perpetrators; that they are not the perpetrators themselves, and come to the Court with clean hands, which is a very important factor whenever one invokes the equity jurisdiction of this Court. I am prepared to assume, and need not decide, that the applicants do indeed come to this Court with clean hands.
[15] There is a distinction between the applicants in that Burnt Church is entitled to invoke certain treaty and historical rights which were recognized by s. 35(1) of the Constitution Act, 1982. However important that distinction between the Band on the one hand, and Mr. Savoie on the other, it need not be taken into account for the purposes of my decision today.
[16] The test for an interlocutory injunction is well known. RJR- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, points out that there are three steps. The applicant must be successful in all three. In the first place, the applicant must demonstrate that there is a serious question to be tried. "Whether the test has been satisfied should be determined by a motions judge on the basis of common sense and an extremely limited review of the case on the merits".
[17] The second step is for "the applicant to demonstrate that irreparable harm will result if the relief is not granted". The third step requires "an assessment of the balance of inconvenience to the parties".
[18] Turning then to the first issue, which is whether or not there is a serious underlying issue, normally the bar is fairly low. However, there are exceptions to that, for instance, if the granting of the injunction would render the underlying judicial review moot. If the injunction is granted in this case, since the season ends June 30th, the applicants will have obtained everything they seek.
[19] Another exception is that of a mandatory injunction. In these cases there must be a prima facie case established by the applicants. Most of the argument relates to variation orders under the Fishery (General) Regulations. Section 6(1) provides:
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Where a close time fishing quota or a limit on the size or weight of fish is fixed in respect of an area under any of the regulations listed in sub-section 3(4), the Regional Director General may, by order, vary that close time, fishing quota or a limit in respect of that area or any portion of that area
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Lorsqu'une période de fermeture, un contingent ou une limite de taille ou de poids du poisson est fixé pour une zone par un des règlements énumérés au paragraphe 3(4), le directeur général régional peut, par ordonnance, modifier la période de fermeture, le contingent ou la limite pour cette zone ou pour toute partie de cette zone.
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[20] The applicants argue that there is no room within that regulation to restrict fishing in part of Zone 23 in order to preserve the peace; that there is no right within that regulation to change the geography of Zone 23. It is argued that Mr. Jones stepped outside the authority given to him by law. In essence the problem is a lack of adequate policing, and this is not a matter which should be considered under the Fishery (General) Regulations.
[21] On the other hand, if there is no peace within the fishery, there has to be an adverse effect on the fishery. I should mention that whether one speaks of the fishery or of criminal law or ferries between provinces, one ultimately must go back to s. 91 of the Constitution Act, 1867. These heads of power given to the Parliament of Canada are all examples of its power to make laws for the peace, order and good government of Canada.
[22] I am of the view that there is a serious underlying issue and that the applicants for the purposes of this stage, have satisfied the higher degree of a prima facie case. I am also satisfied that there is a serious defence to this matter, and the resolution is left to when the judicial review is heard on the merits.
[23] The second test is that of irreparable harm. The applicants are involved in commercial fishing. There is a dollar value to their catch and damages would put them in the position they would have been in had the variation orders not been issued. I appreciate that there can be difficulties in suing the Crown but they are not insurmountable.
[24] I refer to the case of [1959] S.C.R. 121">Roncarelli v. Duplessis, [1959] S.C.R. 121. That was an extreme example of bad faith. It is not suggested that Mr. Jones is acting in bad faith, although Mr. Savoie has a suspicion that this is a prelude to changing the fishing zones in the future. However, the point remains that it has been argued that Mr. Jones has stepped outside his authority. If he is acting without authority and is supported by the Ministry of Fisheries, then it seems to me an action in damages would lie, quite apart from judicial review and, consequently, I must say that the applicants fail on the second branch of the test.
[25] In that second branch, there is also an issue of urgency. It was suggested that because there was a delay of several days in bringing on the application that the matter was not urgent, and therefore there was no irreparable harm. I cannot agree with that position. The record shows that there were efforts to find a political solution when another letter had been written to the Minister. So, certainly, the applicants had not waived their rights.
[26] In the circumstances, it is not necessary for me to consider the third branch of the test which is balance of convenience.
[27] In addition, there is another point under the Crown Liability and Proceedings Act. Section 22 thereof provides that a court shall not against the Crown grant an injunction or make an order for specific performance, but in lieu thereof may make a declaratory order of the rights of the parties. In a way, therefore, this also relates to the serious issue. I mention one case: North of Smokey Fishermen's Assn. v. Canada (Attorney General), 2003 FCT 33, [2003] F.C.J. No. 40 (QL), where Layden- Stevenson, J. reviewed the authorities.
[28] For these reasons, I must dismiss the application. There shall be no order as to costs.
"Sean Harrington"
Judge
Ottawa, Ontario
June 22, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1004-05
STYLE OF CAUSE: ESGENOÔPETITJ FIRST
NATION, also known as
BURNT CHURCH FIRST NATION, being a Band within the meaning of section 2(1) of the Indian Act as represented
by its Chief and Council
AND
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the Minister of Fisheries and Oceans
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: JUNE 21, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: JUNE 22, 2005
APPEARANCES:
Basile Chiasson, Q.C. FOR PLAINTIFF
Ginette Mazerolle FOR DEFENDANT
SOLICITORS OF RECORD:
Chiasson & Roy FOR PLAINTIFF
Bathurst, New Brunswick
John H. Sims, Q.C. FOR DEFENDANT
Deputy Attorney General of Canada
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