Ecology Action Centre Society v. Canada (Attorney General), 2004 FC 1087

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2004 FC 1087

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Date: 20040806

Docket: T-1179-01

Citation: 2004 FC 1087

Ottawa, Ontario this 6^th day of August, 2004

Present: The Honourable Madam Justice Heneghan

BETWEEN:

ECOLOGY ACTION CENTRE SOCIETY

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

INTRODUCTION

[1] Ecology Action Centre Society (the "Applicant") seeks judicial review, pursuant to the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, of Variation Order 2001-074 made by Mr. Neil A. Bellefontaine in his capacity as Regional Director-General, Maritimes Region, Department of Fisheries and Oceans. The Variation Order, issued on May 30, 2001 and in force on June 1, 2001, provided in part as follows:

2. The Maritimes Region Close Time Variation Order 2001-003 is hereby revoked.

3. This Order shall come into force at 0600 hours on June 3, 2001, at which time the close time shall revert to that set out in said regulations.

[2] The relevant part of Variation Order 2001-003, which was made on December 19, 2000, provides as follows:

2. The close times as fixed by Subsection 87.(1) [sic] of the Atlantic Fishery Regulations, 1985 and set out in column IV of items 1 to 14 of Schedule XXIII to the said Regulations for groundfish fishing in division 5Z are hereby varied so that no person shall fish for groundfish by means of any gear between January 1 and December 31.

3. This Order shall come into force on January 1, 2001 and remain in force until December 31, 2001, unless otherwise revoked, at which time the close time shall revert to that set out in said regulations.

[3] The Applicant challenges the validity of the Variation Order and seeks various orders, as set out below:

1. declaring that the issuance of the Variation Order was "contrary to law" within the meaning of s. 18.1(4)(f) of the Federal Court Act, because it allows Draggers onto Georges Bank, which cause the "harmful alteration, disruption or destruction of fish habitat" contrary to s. 35(1) of the Fisheries Act, R.S.C. 1985, c. F-14, as amended;

2. declaring that the issuance of the Variation Order was "without jurisdiction" or "beyond [his] jurisdiction" within the meaning of s. 18.1(4)(a) of the Federal Court Act, because it allows Draggers onto Georges Bank, which cause the "harmful alteration, disruption or destruction of fish habitat" contrary to s. 35(1) of the Fisheries Act.

3. in the alternative, declaring that the harmful alteration, disruption or destruction of fish habitat authorized by the Variation Order has not been authorized in accordance with the requirements of the Fisheries Act, Fishery (General) Regulations and the Canadian Environmental Assessment Act;

4. quashing or setting aside the Variation Order or portions thereof;

5. prohibiting the Regional Director-General from issuing any future variation orders allowing draggers onto Georges Bank, except as specifically authorized pursuant to s. 35(2) of the Fisheries Act; and

6. for such further and other relief as to this Honourable Court may seem just.

BACKGROUND

[4] The Applicant is a non-profit organization that was incorporated under the laws of Nova Scotia in 1971. Its primary objectives are to educate the public about the necessity of protecting and conserving the environment. It communicates with various government agencies to promote the public interest perspective relative to environmental protection issues. The Applicant has participated in public processes concerning the fishing industry, advancing its views to both the government and the industry.

[5] It has a long history of active engagement and the choice of fishing methods is a matter of great concern to it. The affidavit of Mr. Butler provides details in that regard and the exhibits attached to his affidavits include copies of submissions made by the Applicant to the Department of Fisheries and Oceans, as well as scientific papers and reports prepared by marine biologists and other scientists.

[6] The Applicant is concerned about the harmful effects of dragging in the area covered by the Variation Order. It does not advocate a total ban on dragging.

[7] The area affected by the Variation Order is the Canadian portion of Georges Bank. Georges Bank is a shallow submerged fishing bank that has been divided between Canada and the United States of America; the international boundary is known as the "Hague Line". The Canadian portion is the northern tip, covering the area from the southwest coast of Nova Scotia through the Gulf of Maine.

[8] The benthic substrata, that is, the ocean floor, on Georges Bank consists of sand and gravelly sand. According to some of the materials submitted by the Applicant, including a research paper by a Dr. Jeremy Collie, this benthic environment is a nursery area for various plant and animal species including brittle star, anemones, sponges, corals, and crabs. According to the Applicant, these living organisms are put at risk when the fish is caught by dragging.

[9] Dragging is a fishing method that uses mobile gear. That gear, also known as an "otter trawl", consists of wires, boards or doors and a net that is hauled behind the fishing vessel. The doors are used to spread connecting wires and to hold the net open horizontally. Weights on the bottom keep the net open vertically. The end of the net is called the "codend" which traps the fish and anything else that is picked up from the ocean floor during the dragging operations.

[10] The Applicant says that this method of fishing indiscriminately picks up undersized fish and plant forms that are necessary to nourish and maintain the marine environment. It says that dragging has long-term serious negative consequences and in this regard, provided annotated bibliographies of peer reviewed scientific papers that address those effects.

[11] The Applicant notes that the Department of Fisheries and Oceans had conducted its own research on the impact on the benthic environment when certain types of bottom gear are used. This material includes reports jointly prepared by employees of the Department and participants in the fishing industry such as the Fisheries Resource Conservation Council.

[12] The Respondent filed the affidavit of Mr. Jorgen Hansen, a marine biologist employed with the Department of Fisheries and Oceans, Maritime Region, in the position of Senior Groundfish Advisor, Resource Management Branch. He is responsible for managing various groundfish fisheries in the Maritime Region, including the fishing areas in the Canadian portion of Georges Bank.

[13] In his affidavit, he addresses the application of the various regulations enacted pursuant to the Act, as well as the general requirements for fishing on Georges Bank. The essential elements for lawful fishing in that area are receipt of a groundfish licence permitting fishing on Georges Bank, upon payment of all associated fees. Mr. Hansen appended a copy of a generic groundfish licence to his affidavit, for the purpose of illustrating the types of conditions that may be attached to a groundfish licence.

[14] Mr. Hansen stated that the effect of Variation Order 2001-074 was to reinstate the close times provided for by the applicable regulations, including the Atlantic Fishery Regulations, SOR/86-21.

[15] The other evidence filed in connection with the application is the Tribunal Record. According to the certificate dated July 27, 2001 and signed by Mr. Bellefontaine, he considered the documents listed in his certificate when making the Variation Order. The Tribunal Record includes a Groundfish Integration Fisheries Management Plan.

APPLICANT'S SUBMISSIONS

[16] The Applicant argues that the Variation Order is inconsistent with the provisions of the Fisheries Act, R.S.C. 1985, c. F-14, as amended (the "Act") that address the protection of fish habitat and consequently, it is ultra vires or otherwise contrary to law, within the meaning of section 18.1(3)(b) of the Federal Courts Act, supra.

[17] It submits that the Variation Order allowed the opening of the Georges Bank area to dragger fishing and that fishing by that method results in the harmful alteration, disruption and destruction ("HADD") of fish habitat. HADD is prohibited by section 35(1) of the Act. On the basis of that prohibition, the Applicant submits that the Variation Order operates against the purposes of the Act and consequently, is ultra vires or otherwise contrary to law.

[18] Relying on the decision in Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569, the Applicant acknowledges that, pursuant to the Act, the Minister is responsible for managing, conserving and developing the fisheries in the public interest. However, it argues that this responsibility extends to the protection and management of the aquatic environment and says that section 35(1) of the Act supports that view.

[19] Further, the Applicant submits that section 35 was introduced for the purpose of extending protection to the marine environment and in this regard, refers to the parliamentary debates of May 1977 when section 35 was introduced in the House of Commons. The Applicant also relies on the decisions in R. v. Levesque, (2001), 43 C.E.L.R. (N.S.) 294, R. v. Fillion (1993), 59 Q.A.C. 72 and R. v. Kelsey (1985), 55 Nfld. & P.E.I.R. 154.

[20] The Applicant argues that, in the absence of a definition of "work or undertaking" as used in section 35, these words refer to any and all activity undertaken by human effort. It relies on Levesque, supra and K. v. Van Bidder, [1990] Y.J. No. 232 (Q.L.) to support its argument that courts have broadly interpreted the words "any work or undertaking". The Applicant argues that fishing and dragging, in particular, constitute "work" or "undertaking" within the scope of section 35.

[21] The Applicant then refers to section 34(1) of the Act where "fish habitat" is defined. It refers to the policy of the Department of Fisheries and Oceans set out in the document entitled Decision Framework for the Determination and Authorization of Harmful Alteration, Disruption or Destruction of Fish Habitat (Ottawa: Communication Directorate, DFO, 1998) where there is further discussion of the meaning of "fish habitat".

[22] Relying on the decision in R. v. British Columbia Hydro and Power Authority (1997), 25 C.E.L.R. (N.S.) 51 (B.C.S.C.), the Applicant argues that courts have adopted a holistic interpretation of "fish habitat". It further submits that Georges Bank is part of a habitat that supports fish, including spawning grounds, a nursery area, rearing area, food supply area and migration area.

[23] HADD is not defined in the Act but the Applicant refers again to the Departmental Policy where HADD is defined as "any change in fish habitat that reduces its capacity to support one or more life processes of fish". The policy proceeds to comment on three separate elements, that is harmful alteration, disruption and destruction relative to fish habitat. The Applicant says that these three elements are to be read disjunctively and that the occurrence of any one event would constitute HADD.

[24] The Applicant argues that "harmful" refers only to "alteration" and in this regard, relies on the decisions in Fillion, supra and R. v. Jackson, [1994] 10 W.W.R. 609 (Alta. Q.B.). It says, on the basis of the decision in R. v. High (2003), 1 C.E.L.R. (3d) 49 (B.C. Prov. Ct.) that the effects on fish habitat need not be permanent or irreparable in order to contravene section 35(1).

[25] The Applicant argues that courts have found a variety of otherwise lawful activities constitute HADD and refers to High, supra and British Columbia Hydro and Power Authority, supra. It submits that dragging harmfully alters and disrupts the fish habitat on Georges Bank because it affects the ocean floor, eliminating growth areas for juvenile groundfish and food sources for a variety of fish.

[26] The Applicant argues that section 35(2) of the Act requires Ministerial authorization for HADD. This authorization requires consideration by the Minister of the specific action in issue; see British Columbia Hydro and Power Authority, supra. The Applicant says that there was no specific authorization for HADD granted by the Minister in this case.

[27] Relying on the decision in Spinney v. Canada, 183 F.T.R. 71, the Applicant says that variation orders are legislative decisions, rather than administrative decisions. It submits that the applicable standard of review here is correctness. The Applicant argues that where the Governor-in-Council is exercising its statutory authority in a manner that was not intended by the enabling statute, the Courts may exercise judicial discretion to grant an appropriate remedy. The Applicant relies on the decision in Krause v. Canada, [1999] 2 F.C. 476 (F.C.A.) to support this argument.

[28] Finally, the Applicant submits that the "precautionary principle" as recently recognized by the Supreme Court of Canada in the recent decision in 114957 Canada Ltée. (Spraytech, Sociétè d'arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, applies to the making of the Variation Order. The Applicant says that even in the absence of complete scientific knowledge about serious damage to the environment, environmental measures must anticipate and prevent the cause of environmental degradation.

[29] The Applicant argues that since there is substantial evidence that dragging causes HADD, section 6(1) of the Fishery (General) Regulations, supra, cannot be interpreted as allowing the Regional Director-General to open Georges Bank to dragging. This activity would be contrary to the "precautionary principle" since that principle requires the Regional Director General to err on the side of caution if there is uncertainty about the environmental effects of dragging.

RESPONDENT'S SUBMISSIONS

[30] The Respondent submits that the facts relevant to this application are the two Variation Orders, the first being Variation Order 2001-003 that closed Georges Bank to fishing for groundfish from January 1, 2001 to December 31, 2001, and the second being Variation Order 2001-074 that revoked the earlier Variation Order. According to the Respondent, Variation Order 2001-074 had the effect of establishing close times for groundfish fishing in accordance with the times set out in Schedule XXIII and XXIV of the Atlantic Fishing Regulations, supra.

[31] The Respondent says that the only issue arising upon this application for judicial review is whether the Regional Director-General acted within his jurisdiction when he issued Variation Order 2001-074. The Respondent says that the occurrence of HADD is not relevant to a determination of this issue. Rather, the question is to be considered relative to the legislative and regulatory framework provided by the Act and the regulations enacted pursuant to section 43.

[32] The Respondent refers to section 7 of the Act which grants the Minister the authority to manage the fisheries. Section 43 authorizes the Governor-in-Council to make regulations relative to the purposes of the Act.

[33] The Respondent characterizes the Variation Order as an aspect of the regulatory mechanisms available to the Minister in the management of the fisheries. Further, he argues that this regulatory power may be exercised by the Regional Director-General acting as the Minister's delegate, pursuant to section 6(1) of the Act.

[34] The Respondent submits that the Governor-in-Council intended that the Regional Director-General be vested with full discretion to vary close times for fishing, subject to proper notification being given pursuant to section 7 of the Fishery (General) Regulations, supra. He says that the issuance of the Variation Order that resulted in a revision of the closed period provided for in the Fishery (General) Regulations, supra, is not beyond the jurisdiction of the Regional Director-General.

[35] The Respondent also submits that an authorization pursuant to section 35(2) is not a condition precedent for the issuance of a variation order, having regard to the legislative scheme that provides for regulation of the fisheries by means of licences with conditions, as may be appropriate. The Respondent takes the position that if a specific authorization were required pursuant to section 35(2), then the appropriate remedy would be a prosecution for failure of a person to comply with the general prohibition set out in section 35(1) of the Act.

[36] In any event, the Respondent submits that section 35 of the Act does not apply to fishing activity per se but to a "work or undertaking". These words are not defined in the Act. Relying on general principles of statutory interpretation, the Respondent says that these words should be interpreted in a manner consistent with the legislative objectives, in this case, with management and control of the fisheries, including conservation and protection of fish stocks.

[37] The Respondent argues that the Act provides the Minister and Governor-in-Council with the means necessary to accomplish these goals, relying upon the decisions in Ward v. Canada (Attorney General), supra and Gulf Trollers Assn. v. Canada (Minister of Fisheries and Oceans), [1987] 2 F.C. 93 (C.A.).

[38] The Respondent further says that an authorization is required pursuant to section 35(2) of the Act if a person wants to conduct some action other than fishing, which action could impact fish habitat. In support of this submission, the Respondent notes the contrast between section 7 of the Act, which addresses fishing activities, and sections 36 and 37 of the Act which address activities other than fishing.

[39] Alternatively, the Respondent submits that if section 35(1) does apply to fishing, then no authorization is needed in addition to any license issued by the Minister. Licensing, pursuant to section 7, is a recognized means of authorizing HADD.

[40] As well, the Respondent says that fishing activities are not identified in Schedule VI of the Fishery (General) Regulations, supra which refers to various endeavours including the combination of bridges, culverts, and dams, as well as mining and other non-fishing activities. The information required by Schedule VI includes matters such as engineering specifications and details of projects that are unrelated to fishing. According to the Respondent, these indicia show that section 35 is not directed at lawful fishing activities that are permitted by the Minister pursuant to the broad and general jurisdiction over fishing licences.

[41] The Respondent submits that no environmental assessment is required under the Canadian Environmental Assessment Act, S.C. 1992, c.37 ("CEAA") in connection with the issuance of this Variation Order. The Respondent says that pursuant to sections 5 and 7 of the CEAA, certain conditions must exist in order to trigger application of that statute, as follows:

1. that there is a specific project;

2. that the project is not excluded from the assessment requirement;

3. that one or more of the powers, duties and functions identified in section 5 is exercised in order to enable the project to move forward.

[42] The Respondent argues that deciding whether a fishing area will be open or closed cannot be described as an "undertaking" as addressed by the CEAA. He further submits that when the Regional Director General issued Variation Order 2001-074, he was not "seized with any project".

[43] Alternatively, the Respondent submits that if there was a "project" at the time, then there was no specific knowledge of this project and that according to section 7(2) of the CEAA, an environmental assessment is not required when the essential details of the project are not specified before or at the time the federal authority exercises a power or performs a duty or function.

[44] The Respondent relies on the decision in Kwicksutaineuk/Ah-Kwa-mish Tribes v. Canada (Minister of Fisheries and Oceans) (2003), 227 F.T.R. 96, aff'd. (2003), 313 N.R. 394(F.C.A.), where the Court found that fishing activities are not encompassed by the requirement for an environmental assessment under the CEAA.

[45] Finally, the Respondent argues that the Regional Director General was not exercising any federal power, duty or function that required the application of the CEAA. Section 5(1) of that Act sets out the circumstances where an assessment is required. The only regulations that relate to section 5(1) have been enacted pursuant to section 59(f) and (g) of the CEAA, that is the Law List Regulations, SOR/94-636.

[46] The Respondent says that although section 35(2) of the Act is identified in the Law List Regulations, if HADD results from fishing activity that is authorized by the Minister, then it is outside the scope of section 35(2). However, the Respondent raises the alternative argument that if the general prohibition in section 35(1) applies to the area affected by the Variation Order, then fishing activity in that area can still be conducted pursuant to a licence issued by the Minister. In those circumstances, there is no requirement for an assessment pursuant to the CEAA.

[47] The Respondent says that this application for judicial review should be dismissed with costs.

ANALYSIS

i) The Scope of Judicial Review

[48] This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act, supra. The Applicant specifically pleads and relies on section 18.1(4)(a) and (f) which provide as follows:

18.1(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

...

(f) acted in any other way that was contrary to law.

18.1 (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas_:

a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;

...

f) a agi de toute autre façon contraire à la loi.

[49] The relief available upon an application for judicial review is limited to a determination of whether the decision in question was properly made, that is within the legal authority of the decision-maker. In Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) (1998), 229 N.R. 249 (F.C.A.), the Federal Court of Appeal spoke about the scope of judicial review in the following terms at p. 255:

Having said that and reviewed the context in which the present exercise of ministerial discretion ought to be analysed, it bears repeating that the function of the Court in judicial review proceedings is not to "second guess" the Minister in his appreciation of the public needs and interest when fixing the fishing quotas and, then acting in his stead, proceed to substitute its views for that of the Minister. Parliament and the Governor-in-Council intended the Minister to enjoy in the exercise of his function and duty to establish and implement fishing quotas in the public interest "the widest possible freedom to manoeuvre" (see Carpenter Fishing Corp. et al. v. Canada (Minister of Fisheries and Oceans) et al. (1997), 221 N.R. 372 (F.C.A.); Barron v. Minister of National Revenue, [1997] F.C.J. No. 175; 209 N.R. 392 (F.C.A.)). ...

[50] The decision which is challenged here is a legislative decision. A legislative act differs from an administrative act and that difference is discussed in De Smith Judicial Review of Administrative Action (S.A. De Smith & J.M. Evans, 4th ed. (London, England: Stevens, 1980)) at page 71 as follows:

A distinction often made between legislative and administrative acts is that between the general and the particular. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practice. ...

[51] Since such a decision involves interpretation of a statute or regulation, it is reviewable upon the standard of correctness and judicial intervention is available in limited circumstances as described by Justice Blais in Spinney, supra at p. 80 as follows:

Given that the variation order is a legislative act, authorized by the Regulations and adopted pursuant to the Act, this Court's jurisdiction is limited. It can intervene on the basis of unconstitutionality (i.e. contrary to section 91 or 92 of the British North America Act), a breach of procedure, or the legislative act being ultra vires of the enabling statute.

[52] As discussed in Gulf Trollers, supra at p. 102, a variation order represents the exercise of power delegated under the Regulations to the Regional Director-General. It is in the nature of subordinate legislation and as such, the delegate must ensure that his exercise of that delegated power conforms with the objectives of the enabling statute.

ii) The scope of the Fisheries Act

[53] The Applicant here challenges the Variation Order as being ultra vires its enabling statute, that is the Act. Although the statute has no purpose section, it has been recognized by the Courts as conferring a broad power to regulate and manage the fisheries. In Ward, supra, the Supreme Court of Canada described the federal fisheries power in the following terms:

These cases put beyond doubt that the fisheries power includes not only conservation and protection, but also the general "regulation" of the fisheries, including their management and control. They recognize that "fisheries" under s. 91(12) of the Constitution Act, 1867 refers to the fisheries as a resource; "a source of national or provincial wealth" (Robertson, supra, at p. 121); a "common property resource" to be managed for the good of all Canadians (Comeau's Sea Foods, supra, at para. 37). The fisheries resource includes the animals that inhabit the seas. But it also embraces commercial and economic interests, aboriginal rights and interests, and the public interest in sport and recreation.

[54] The Act confers an absolute discretion upon the Minister in the matter of issuing licences. Section 7 provides as follows:

7. (1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on.

(2) Except as otherwise provided in this Act, leases or licences for any term exceeding nine years shall be issued only under the authority of the Governor in Council.

7. (1) En l'absence d'exclusivité du droit de pêche conférée par la loi, le ministre peut, à discrétion, octroyer des baux et permis de pêche ainsi que des licences d'exploitation de pêcheries - ou en permettre l'octroi -, indépendamment du lieu de l'exploitation ou de l'activité de pêche.

(2) Sous réserve des autres dispositions de la présente loi, l'octroi de baux, permis et licences pour un terme supérieur à neuf ans est subordonné à l'autorisation du gouverneur général en conseil.

[55] Section 7 has been judicially considered and the Courts have recognized the broad discretion of the Minister over the issuance of licences. In this regard I refer to Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans, [1997] 1 S.C.R. 12 and Tucker v. Canada (Minister of Fisheries and Oceans) (2000), 197 F.T.R. 66, aff'd. (2001) 288 N.R. 10 (F.C.A.).

[56] While the authority to issue licences lies within the absolute discretion of the Minister, Parliament has given the Governor-in-Council the authority to enact regulations concerning various aspects of the fishery. Section 43 of the Act confers that power and the following provisions of section 43 are relevant to this proceeding:

43. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations

...

(b) respecting the conservation and protection of fish;

...

(e) respecting the use of fishing gear and equipment;

...

(g) respecting the terms and conditions under which a licence and lease may be issued;

...

(I) respecting the conservation and protection of spawning grounds;...

(l) prescribing the powers and duties of persons engaged or employed in the administration or enforcement of this Act and providing for the carrying out of those powers and duties; and

(m) where a close time, fishing quota or limit on the size or weight of fish has been fixed in respect of an area under the regulations, authorizing persons referred to in paragraph (l) to vary the close time, fishing quota or limit in respect of that area or any portion of that area.

43. Le gouverneur en conseil peut prendre des règlements d'application de la présente loi, notamment_:

...

b) concernant la conservation et la protection du poisson;

...

e) concernant l'utilisation des engins et équipements de pêche;

...

g) concernant les conditions attachées aux licences, permis et baux;

...

I) concernant la conservation et la protection des frayères;

...

l) prescrivant les pouvoirs et fonctions des personnes chargées de l'application de la présente loi, ainsi que l'exercice de ces pouvoirs et fonctions;

m) habilitant les personnes visées à l'alinéa l) à modifier les périodes de fermeture, les contingents ou les limites de taille ou de poids du poisson fixés par règlement pour une zone ou à les modifier pour un secteur de zone.

[57] In the exercise of this power the Governor-in-Council has enacted the Fishery (General) Regulations, supra. Section 3(1) of these Regulations sets out the areas to which these Regulations apply but section 3(4)(a) provides that in the event of an inconsistency between the Fishery (General) Regulations, supra and the Atlantic Fishery Regulations, supra, the latter shall apply.

[58] Section 2 of the Fishery (General) Regulations, supra, defines "Regional Director-General" as follows:

"Regional Director-General" means a Regional Director-General or an Associate Regional Director-General of the Department;

« _directeur général régional_ » Le directeur général régional ou le directeur général régional associé du ministère;

[59] Section 6(1) of the Fishery (General) Regulations, supra, addresses variation orders and provides as follows:

6. (1) Where a close time, fishing quota or limit on the size or weight of fish is fixed in respect of an area under any of the Regulations listed in subsection 3(4), the Regional Director-General may, by order, vary that close time, fishing quota or limit in respect of that area or any portion of that area.

[60] "Close time" is defined in section 2 of the Act, as follows:

"close time" means a specified period during which fish to which it applies may not be fished, and "closed time" or "closed season" has a similar meaning;

« période d'interdiction » Période spécifiée pendant laquelle le poisson visé ne peut être pêché; « période de fermeture » ou « saison de fermeture » ont le même sens.

[61] Section 22 of these Regulations provides for the attachment of conditions to fishing licences. For the present purpose, section 22(1)(a), (c), (h) and (I) are relevant, as follows:

22. (1) For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify in a licence any condition that is not inconsistent with these Regulations or any of the Regulations listed in subsection 3(4) and in particular, but not restricting the generality of the foregoing, may specify conditions respecting any of the following matters:

(a) the species of fish and quantities thereof that are permitted to be taken or transported;

...

(h) the type, size and quantity of fishing gear and equipment that is permitted to be used and the manner in which it is permitted to be used;

(I) the specific location at which fishing gear is permitted to be set;

22. (1) Pour une gestion et une surveillance judicieuses des pêches et pour la conservation et la protection du poisson, le ministre peut indiquer sur un permis toute condition compatible avec le présent règlement et avec les règlements énumérés au paragraphe 3(4), notamment une ou plusieurs des conditions concernant ce qui suit :

a) les espèces et quantités de poissons qui peuvent être prises ou transportées;

...

c) les eaux dans lesquelles la pêche peut être pratiquée;

h) le type et la quantité d'engins et d'équipements de pêche qui peuvent être utilisés et leur grosseur ainsi que la manière don't ils doivent être utilisés;

I) l'endroit précis où les engins de pêche peuvent être mouillés;

[62] When these provisions of the Fishery (General) Regulations, supra are considered, it is apparent that the Regional Director-General was authorized to make the Variation Order and the Order itself was authorized under the Regulations. The Variation Order did no more nor less than open the area 5Z for fishing. There is no basis for saying that the Regional Director-General acted beyond his jurisdiction since he did what he was authorized to do.

[63] Furthermore, it is also clear that section 43 authorized the Governor-in-Council to enact the regulations from which the Regional Director-General derived his power. I refer to sections 43 (l) and (m), quoted above. According to the decision of the Supreme Court of Canada in [1980] 2 S.C.R. 735">Inuit Tapirisat of Canada v. Canada (Attorney General), [1980] 2 S.C.R. 735 at p. 758-759, it is appropriate for a court to inquire whether the Governor-in-Council has acted within its authority in enacting regulations.

... In such a circumstance the Court must fall back upon the basic jurisdictional supervisory role and in so doing construe the statute to determine whether the Governor in Council has performed its functions within the boundary of the parliamentary grant and in accordance with the terms of the parliamentary mandate.

[64] Indeed, it is worth noting that the effect of Variation Order 2001-074 was to reinstate the close time for fishing in that area as mandated by sections 87 and 90 of the Atlantic Fishing Regulations, supra, which provide as follows:

87. (1) Subject to sections 88 and 90, no person shall fish for a species of groundfish set out in column I of an item of Schedule XXIII in a Stock Area set out in column II of a subitem of that item from a vessel of a vessel class set out in column III of that subitem during the close time set out in column IV of that subitem.

(2) For the purposes of subsection (1), where a close time set out in column IV of a subitem of Schedule XXIII is in respect of more than one vessel class, that close time is deemed to be fixed in respect of each vessel class referred to in that subitem.

87. (1) Sous réserve des articles 88 et 90, il est interdit de pêcher une espèce de poisson de fond nommée à la colonne I de l'annexe XXIII, dans une zone de stock mentionnée à la colonne II, à partir d'un bateau d'une catégorie visée à la colonne III, pendant la période de fermeture établie à la colonne IV de cette annexe.

(2) Pour l'application du paragraphe (1), lorsqu'une période de fermeture établie à la colonne IV de l'annexe XXIII vise plus d'une catégorie de bateau mentionnée à la colonne III, cette période est réputée avoir été fixée pour chacune de ces catégories de bateau.

90. No person shall fish for groundfish in the waters set out in column I of Schedule XXIV with a type of gear referred to in column II during the close time set out in column III.

[65] The close times referenced in section 87 were the subject of Variation Order 2001-003. That Variation Order changed those close times and imposed a close time for fishing "by means of any gear between January 1 and December 31". Under the Atlantic Fishing Regulations, supra, including Schedule XXIII, the "usual" close times are variable, depending upon the species of fish in question. However, by virtue of Variation Order 2001-003, all the close times were changed to a twelve month period. Variation Order 2001-003 was specifically limited by its terms to expire on December 31, 2001, "unless otherwise revoked".

[66] It was revoked by Variation Order 2001-074 which merely reinstated the close time already set out in the Atlantic Fishing Regulations, supra. No challenge has been taken against the legality of these Regulations. Indeed, no challenge is raised in this application about the constitutionality of either section 43 of the Act, that is the regulation-making power, or the Fishery (General) Regulations, supra.

[67] Alternatively, the Applicant argues that the Variation Order is "otherwise contrary to law" because it will cause HADD, as the result of fishing by means of dragging on the Georges Bank. HADD caused as the result of fishing is not permitted, according to the Applicant, in light of section 35 of the Act. Section 35 provides as follows:

35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.

(2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister or under regulations made by the Governor in Council under this Act.

35. (1) Il est interdit d'exploiter des ouvrages ou entreprises entraînant la détérioration, la destruction ou la perturbation de l'habitat du poisson.

(2) Le paragraphe (1) ne s'applique pas aux personnes qui détériorent, détruisent ou perturbent l'habitat du poisson avec des moyens ou dans des circonstances autorisés par le ministre ou conformes aux règlements pris par le gouverneur en conseil en application de la présente loi.

[68] The Applicant suggests that the terms "work" or "undertaking", which are undefined in the Act, should be given their ordinary meaning and be interpreted as any human endeavour. Since fishing involves human activity, it falls within the ambit of section 35(1).

[69] The Respondent, on the other hand, submits that this view is inconsistent with the purpose of the Act. The words "work" or "undertaking" appear in sections 36 and 37, as well as section 35. These three provisions are found in the part of the Act that addresses protection of habitat and pollution prevention. The Respondent argues that the words "work or undertaking" and "fishing" are used in different parts of the Act because the terms do not carry the same meaning and are not included in each other.

[70] The word "fishing" is defined in section 2 of the Act as follows:

"fishing" means fishing for, catching or attempting to catch fish by any method;

« pêche » Fait de prendre ou de chercher à prendre du poisson par quelque moyen que ce soit.

This is a broad definition. It is to be interpreted by reference to the Act and the Regulations. In Kwicksutaineuk/Ah-Kwa-mish Tribes, supra, Justice Rouleau rejected the argument before him concerning an expanded meaning to the word "fishing". At paragraph 22 he said the following:

The term "fishing" is defined in section 2 of the Fisheries Act as "fishing for, catching or attempting to catch fish by any method". The applicant's narrow interpretation of this term is not supported by the grammatical or textual construction of the Act as a whole. The definition of that term makes no reference to a requirement that the fish caught be "used" or "exploited" in any way, it is restricted to the physical act of catching fish (or taking possession thereof). Indeed, the existing regulations (see, for example, section 33 of the Fisheries (General) Regulations) and legislative scheme allow for and even require release of the fish caught in some circumstances, thereby making the "use" or "exploitation" of the fish caught not only irrelevant, but prohibited in some circumstances.

[71] In the present case, the Applicant is attempting to show that fishing falls within section 35(1) of the Act, in order to demonstrate that the Regional Director-General acted "contrary to law" in making Variation Order 2001-074. Underlying this argument is the allegation that the use of trawl gear will inevitably cause HADD in Area 5Z.

[72] There are problems with this argument. In the first place, the Regional Director-General was acting within his lawful authority when issuing the Variation Order. The Variation Order is silent as to the type of gear that may be used in fishing during the permissible time frames; that issue is governed by whatever conditions that may be attached to any licence issued by the Minister and in accordance with the applicable regulations.

[73] There is no evidence that the making of the Variation Order itself had any particular effect on the benthic environment in area 5Z. I agree with the submissions of the Respondent that if there was an "effect", it was due to something other than the Variation Order.

[74] Furthermore, it is noteworthy that section 35 does not impose a blanket prohibition against HADD. HADD may occur with the authorization of the Minister or pursuant to regulations enacted by the Governor-in-Council.

[75] Fishing is permitted, subject to obtaining a licence and complying with any applicable conditions imposed under the Regulations. It is incongruous to say that fishing activity will be prohibited for the purpose of section 35 unless further authorization is obtained. Section 35 is a prohibition which may, in certain cases, lead to a prosecution under the Act.

[76] If Parliament intended that the words "work or undertaking" in section 35 should include fishing, it could and should have made that intention clear by importing words of limitation in the definition or elsewhere in the Act.

[77] I endorse the Respondent's argument that, in any event, section 35 is not an absolute bar against causing HADD but only unauthorized activities that may lead to such result. It is clear from the statutory and regulatory framework that any legal fishing is subject to Ministerial authorization by means of a licence.

[78] As well, the Fishery (General) Regulations, supra, contain provisions concerning requests for authorization pursuant to section 35(2). Schedule VI of these Regulations details a number of specific activities for which an authorization is required, including bridges, culverts, dams, mining and erosion control. These types of activities do not fall within the definition of "fishing", although they may be ancilliary to that endeavour.

[79] The Applicant referred to the parliamentary debates relating to the amendment of the Order in 1977 which introduced provisions dealing with pollution prevention. Section 35 is found in the section of the Act that is introduced by the heading "Fish Habitat Protection and Pollution Prevention". Section 34 sets out various definitions for the purposes of sections 35 to 43. Section 34 defines "fish habitat" as follows:

"fish habitat" means spawning grounds and nursery, rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes;

« habitat du poisson » Frayères, aires d'alevinage, de croissance et d'alimentation et routes migratoires don't dépend, directement ou indirectement, la survie des poissons.

[80] Reference to Parliamentary Debates can be useful for the purpose of interpreting a statute. It is clear from the material submitted by the Applicant that preservation and conservation of the fishery resource was an important consideration for the then Minister of Fisheries and indeed, that goal was supported by other members of Parliament who participated in the debate. However, the language of the Parliamentary Debates does not support the Applicant's argument that fishing activity authorized by the Minister or pursuant to the Regulations was meant to be encompassed by the words "work or undertaking" in section 35.

[81] The jurisprudence cited by the Applicant in relation to "work or undertaking" in section 35 are decisions arising from prosecutions under that section. They are not relevant to the present case.

[82] In my opinion, section 35 does not apply to the Variation Order here in issue.

iii) Application of the Canadian Environmental Assessment Act

[83] The Applicant has also argued that the Variation Order is "contrary to law" because no environmental assessment was conducted pursuant to the CEAA. In my opinion, that legislation does not apply.

[84] The CEAA is a statute enacted to provide a federal environmental assessment process. That is clear from its preamble. As well, section 4 sets out the purposes of that legislation, as follows:

4. (1) The purposes of this Act are

(a) to ensure that projects are considered in a careful and precautionary manner before federal authorities take action in connection with them, in order to ensure that such projects do not cause significant adverse environmental effects;

(b) to encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy;

(b.1) to ensure that responsible authorities carry out their responsibilities in a coordinated manner with a view to eliminating unnecessary duplication in the environmental assessment process;

(b.2) to promote cooperation and coordinated action between federal and provincial governments with respect to environmental assessment processes for projects;

(b.3) to promote communication and cooperation between responsible authorities and Aboriginal peoples with respect to environmental assessment;

(c) to ensure that projects that are to be carried out in Canada or on federal lands do not cause significant adverse environmental effects outside the jurisdictions in which the projects are carried out; and

(d) to ensure that there be opportunities for timely and meaningful public participation throughout the environmental assessment process.

(2) In the administration of this Act, the Government of Canada, the Minister, the Agency and all bodies subject to the provisions of this Act, including federal authorities and responsible authorities, shall exercise their powers in a manner that protects the environment and human health and applies the precautionary principle.

4. (1) La présente loi a pour objet_:

a) de veiller à ce que les projets soient étudiés avec soin et prudence avant que les autorités fédérales prennent des mesures à leur égard, afin qu'ils n'entraînent pas d'effets environnementaux négatifs importants;

b) d'inciter ces autorités à favoriser un développement durable propice à la salubrité de l'environnement et à la santé de l'économie;

b.1) de faire en sorte que les autorités responsables s'acquittent de leurs obligations afin d'éviter tout double emploi dans le processus d'évaluation environnementale;

b.2) de promouvoir la collaboration des gouvernements fédéral et provinciaux, et la coordination de leurs activités, dans le cadre du processus d'évaluation environnementale de projets;

b.3) de promouvoir la communication et la collaboration entre les autorités responsables et les peuples autochtones en matière d'évaluation environnementale;

c) de faire en sorte que les éventuels effets environnementaux négatifs importants des projets devant être réalisés dans les limites du Canada ou du territoire domanial ne débordent pas ces limites;

d) de veiller à ce que le public ait la possibilité de participer de façon significative et en temps opportun au processus de l'évaluation environnementale.

(2) Pour l'application de la présente loi, le gouvernement du Canada, le ministre, l'Agence et les organismes assujettis aux dispositions de celle-ci, y compris les autorités fédérales et les autorités responsables, doivent exercer leurs pouvoirs de manière à protéger l'environnement et la santé humaine et à appliquer le principe de la prudence.

[85] The CEAA is directed to assessing the environmental impact of projects. "Project" is defined in section 2 as follows:

"project" means

(a) in relation to a physical work, any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work, or

(b) any proposed physical activity not relating to a physical work that is prescribed or is within a class of physical activities that is prescribed pursuant to regulations made under paragraph 59(b);

« _projet_ » Réalisation - y compris l'exploitation, la modification, la désaffectation ou la fermeture - d'un ouvrage ou proposition d'exercice d'une activité concrète, non liée à un ouvrage, désignée par règlement ou faisant partie d'une catégorie d'activités concrètes désignée par règlement aux termes de l'alinéa 59b).

[86] Section 5(1) identifies various projects for which an environmental assessment is required as follows:

5. (1) An environmental assessment of a project is required before a federal authority exercises one of the following powers or performs one of the following duties or functions in respect of a project, namely, where a federal authority

(a) is the proponent of the project and does any act or thing that commits the federal authority to carrying out the project in whole or in part;

(b) makes or authorizes payments or provides a guarantee for a loan or any other form of financial assistance to the proponent for the purpose of enabling the project to be carried out in whole or in part, except where the financial assistance is in the form of any reduction, avoidance, deferral, removal, refund, remission or other form of relief from the payment of any tax, duty or impost imposed under any Act of Parliament, unless that financial assistance is provided for the purpose of enabling an individual project specifically named in the Act, regulation or order that provides the relief to be carried out;(c) has the administration of federal lands and sells, leases or otherwise disposes of those lands or any interests in those lands, or transfers the administration and control of those lands or interests to Her Majesty in right of a province, for the purpose of enabling the project to be carried out in whole or in part; or

(d) under a provision prescribed pursuant to paragraph 59(f), issues a permit or licence, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part.

5. (1) L'évaluation environnementale d'un projet est effectuée avant l'exercice d'une des attributions suivantes_:

a) une autorité fédérale en est le promoteur et le met en oeuvre en tout ou en partie;

b) une autorité fédérale accorde à un promoteur en vue de l'aider à mettre en oeuvre le projet en tout ou en partie un financement, une garantie d'emprunt ou toute autre aide financière, sauf si l'aide financière est accordée sous forme d'allègement - notamment réduction, évitement, report, remboursement, annulation ou remise - d'une taxe ou d'un impôt qui est prévu sous le régime d'une loi fédérale, à moins que cette aide soit accordée en vue de permettre la mise en oeuvre d'un projet particulier spécifié nommément dans la loi, le règlement ou le décret prévoyant l'allègement;

c) une autorité fédérale administre le territoire domanial et en autorise la cession, notamment par vente ou cession à bail, ou celle de tout droit foncier relatif à celui-ci ou en transfère à Sa Majesté du chef d'une province l'administration et le contrôle, en vue de la mise en oeuvre du projet en tout ou en partie;

d) une autorité fédérale, aux termes d'une disposition prévue par règlement pris en vertu de l'alinéa 59f), délivre un permis ou une licence, donne toute autorisation ou prend toute mesure en vue de permettre la mise en oeuvre du projet en tout ou en partie.

[87] Pursuant to section 59 of this legislation, the Governor-in-Council is authorized to make regulations. According to section 59(b), the Governor-in-Council may make regulations "prescribing, for the purpose of the definition 'project' in subsection 2(1), any physical activity or class of physical activities". The Inclusion List Regulations, SOR/94-637 have been enacted pursuant to this legislative provision.

[88] In my opinion, neither the CEAA nor the Inclusion List Regulations, supra, apply to this proceeding. The subject of this application is a variation order. I refer to the decision in Kwicksutaineuk/Ah-Kwa-mish Tribes, supra, where Justice Rouleau said, at paragraph 26, that fishing is not included in "project" for the purposes of the CEAA, as follows:

... Indeed, the case law is clear to the effect that the prohibition contained in that provision are intended for the construction of projects and their operation which could result in the destruction of fish or damage to fish habitat: see for example Lavoie v. Canada (Minister of the Environment) (2000), 190 F.T.R. 181 (F.C.T.D.); Lavoie v. Canada (Minister of the Environment) (1999), 168 F.T.R. 82 (F.C.T.D.). There is no such project or operation intended in the case at bar.

CONCLUSION

[89] The subject of this application for judicial review is a Variation Order that was legitimately made by the Regional Director-General in the exercise of the power delegated to him by section 6(1) of the Fishery (General) Regulations, supra. Those Regulations were enacted by the Governor-in-Council pursuant to the authority conferred by section 43 of the Act.

[90] The Variation Order, per se, has no effect except to establish a closed time for fishing in Area 5Z in accordance with sections 87 and 90 of the Atlantic Fishery Regulations, supra. According to those Regulations, that area is open for fishing during the times identified in Column IV of Schedule XXIII, subject to the close times identified in Schedule XXIV.

[91] Fishing is not a "work or undertaking" within the meaning of section 35 of the Act and no authorization other than a licence, issued by the Minister pursuant to section 7 of the Act, is required. The CEAA does not apply because fishing is not a "project".

[92] The regulation and management of the Canadian fisheries is a complex matter. It involves the recognition and balancing of many interests, including preservation of a natural resource, the economic interests of participants in the fishing industry, and wise exploitation of the fisheries for the benefit of all, not only Canadians.

[93] Parliament has entrusted the task of balancing these diverse interests to the Minister and the Governor-in-Council. As long as the choices they make are within their statutory power, there is no basis for judicial intervention.

[94] Variation orders have been recognized as legitimate management tools, as discussed in Gulf Trollers, supra. A variation order that changes the close times otherwise provided for in another variation order or the Regulations, requires the exercise of judgment which should not be overridden by the Court in an application for judicial review. I refer again to the words of the Federal Court of Appeal in Nunavut, supra, at page 255 as follows:

In other words, the court in judicial review proceedings is concerned with the legality of the ministerial decision resulting from an exercise of discretion, not its opportunity, wisdom or soundness (see Canadian Association of Regulated Importers et al. v. Canada (Attorney General) et al., [1994] 2 F.C. 247; 164 N.R. 342, at p. 260 (F.C.A.)). ...

[95] In the result, the application for judicial review is dismissed. In the exercise of my discretion pursuant to the Federal Court Rules, 1998, SOR/98-106, as amended and having regard to the public interest in the issues raised by the Applicant, I make no order as to costs.

ORDER

The application for judicial review is dismissed, no order as to costs.

"E. Heneghan"