Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans), docket T-1135-98

Date: 19990930

Docket: T-1135-98

BETWEEN:

NUNAVUT TUNNGAVIK INC.

                                         Applicant

- and -

MINISTER OF FISHERIES AND OCEANS

                    

                                         Respondent

     REASONS FOR ORDER AND ORDER

BLAIS J.

[1]      This application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985 C.F.-7 (as amended) is to review and set aside a decision by the Federal Minister of Fisheries and Oceans dated June 9, 1998, establishing turbot quotas for the Davis Strait fishery for a five-year period.

GROUNDS

     The applicant suggests that:

a)      The minister erred in law in failing to recognize the importance of and give special consideration to the principles of adjacency and economic dependence and other relevant principles set out in article 15 of the Nunavut Land Claims Agreement.

b)      The minister erred in law in failing to apply the principles set out in article 15 of the Nunavut Land Claims Agreement in such a way as to promote a fair distribution of turbot fisheries between the residents of the Nunavut Settlement Area and the other residents of Canada, as required pursuant to article 15.3.7 of the Nunavut Land Claims Agreement.

UNDISPUTED FACTS

[2]      In 1993, the Inuit of the Nunavut Settlement Area and Canada ratified the Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada (the "Agreement"), a land claims agreement within the meaning of s.35 of the Constitution Act, 1982.1 The Agreement was ratified, given effect and declared valid pursuant to s.4(1) of the Nunavut Land Claims Agreement Act.2

[3]      The coming into force of the Nunavut Land Claims Agreement significantly altered the management regime for Arctic offshore fisheries.

[4]      The minister retained power to set and allocate quotas in the 200-mile fishing zone beyond the 12-mile Territorial Sea. However, the coming into force of the Nunavut Land Claims Agreement changed the way in which the minister is required to manage Arctic fisheries in the 200-mile fishing zone.

[5]      The 200-mile fishing zone north of the 61 of latitude and beyond the 12-mile Territorial Sea is referred to in the Nunavut Land Claims Agreement as "Zone I."

[6]      Turbot in the waters between Baffin Island and Greenland comprise a single stock (with the exception of one area off northern Greenland).

[7]      The shared stock is managed on the basis of sectors established by the North Atlantic Fisheries Organization ("NAFO"). NAFO Sub-Area 1 is on the Greenland side and NAFO Sub-Area 0 is on the Baffin Island side. (The dividing line between Sub-Area 1 and Sub-Area 0 is the line equidistant from Canada"s and Greenland"s 200-mile limit).

[8]      Sub-Area 0 is further divided into Divisions 0A in the north and 0B in the south.

[9]      All of Sub-areas 0A and 0B outside the Nunavut Settlement Area are in Zone I as defined in the Nunavut Land Claims Agreement.

[10]      Canada"s share of the Total Allowable Catch ("TAC") is allocated through the mechanism of the minister"s licensing powers under section 7 of the Fisheries Act3.

[11]      On April 7, 1997, the minister announced that the TAC for Sub-Area 0 would be increased from 5,500t to 6,600t.

[12]      The applicant brought an application to have the minister"s 1997 turbot allocation set aside. By order of this Court, dated July 14, 1997, the 1997 turbot allocations were set aside and referred back to the minister for reconsideration in accordance with the reasons for order in Court file no. T-872-974.

[13]      The aforementioned decision was appealed to the Federal Court of Appeal. The appeal was dismissed on July 13, 19985.

[14]      On August 19, 1997, the Department of Fisheries and Oceans ("DFO") issued a notice advising that the allocations for the balance of the 1997 fishing season would be the same as the 1996 allocations.

[15]      On December 3, 1997 and December 4, 1997, representatives of the Nunavut Wildlife Management Board ("NWMB") met with DFO officials to discuss, among other things, the 1998 turbot allocations for Sub-Area 0.

[16]      At the meeting, the NWMB reiterated its position that Nunavut is entitled to a much larger share of the Davis Strait fishery given the provincial shares of adjacent fisheries, the history of the fishery, and article 15.3.7 of the Nunavut Land Claims Agreement. Specifically, the NWMB recommended that the Nunavut share be 40% of the TAC in 1998, 60% in 2000 and rise above 80% by 2000.

[17]      By letter dated March 12, 1998, the NWMB submitted its recommendations to the minister regarding the 1998 turbot allocations in the Davis Strait fishery.

[18]      By letter dated May 11, 1998, the minister responded to and rejected both of the NWMB"s recommendations. The minister proposed that the same allocations as those established in August 1997 be maintained for the 1998-2002 period, with 50% of any increase in the Canadian TAC to go to Nunavut.

[19]      By letter dated May 22, 1998, the NWMB responded to the minister"s proposal by concluding that "The NWMB is in total disagreement with your characterization of the history of Nunavut involvement in the Davis Strait fishery, and with the resulting position on allocations that is being contemplated."

THE MINISTER"S DECISION UNDER REVIEW

[20]      On June 9, 1998, the minister announced his decision with respect to the turbot allocations for the period 1998-2002. As had been earlier proposed by the minister, the allocations for this period were kept the same as the 1997 re-determination with the exception that the Foreign Charter allocation was replaced with a "Company Allocation."

[21]      The minister acknowledged Nunavut"s request for a greater share of the Sub-Area 0 turbot but refused to increase Nunavut"s share on the basis that it was unacceptable to take fish away from others who had developed the Davis Strait turbot fishery.

ISSUE

[22]      Did the minister"s 1998 decision, with respect to the establishment of turbot quotas for the Davis Strait fishery, violate the provisions of the Nunavut Land Claims Agreement ?

APPLICANT"S ARGUMENT

[23]      The applicant alleged that the minister"s announcement for a five-year plan for turbot quotas allocation did not comply with the obligations contained in the Nunavut Land Claims Agreement .

[24]      It is further argued that the Nunavut Inuit surrendered their fishing rights for the conditions found in the Agreement and that the Crown has a duty to comply with its obligations. Compliance requires that substantial measures be taken. It is not sufficient for the Crown to simply state that it did keep in mind the objectives of the Agreement when deciding upon quotas to be allocated.

[25]      The major concern of the applicant is with respect to Zone I which is described as the 200-mile fishing zone north of the 61 of latitude and beyond the 12-mile Territorial Sea as defined in Article 1 of the Nunavut Land Claims Agreement. The Agreement expressly recognizes that Inuit will enjoy additional rights to areas outside the Nunavut Settlement Area (article 3.5.1) as regards to Zone 1.

[26]      The applicant submits that according to the principle of adjacency, a priority factor has to be considered for issuance of licences.

[27]      The word "adjacency" is defined at article 15.3.7 of the Agreement which specifically speaks of the "principle of adjacency." Therefore, a purposive meaning has to be given to the word "principle" as well. The Oxford dictionary suggests the following general sense to be given to the word principle: "a fundamental source; a primary element, force, or law which produces or determines particular results."

[28]      It is submitted that the management of that principle has been providing fishermen from a province with the majority of fishing in the waters adjacent to that province. As it is submitted that there is no doubt as to the economic dependence of Nunavut residents on the fishing resource, the adjacency principle should be given its full effect.

[29]      The applicant also submits that according to the Federal/Provincial Report on Historic Shares of the Fishery, fishermen in a province take the largest share of the fish in the waters adjacent to that province. This has not been applied for the Nunavut and a reasonable observer could not conclude that the principle of adjacency is reflected in the minister"s quota allocations.

[30]      It is further submitted that the obligations of the minister under article 15.3.7 of the Agreement have to be appreciated in the context of the regulatory system in place. The NAFO areas 0A and 0B are comprised in Zone 1. The turbot found between Greenland, Baffin Island and Labrador comprises a singular Total Allowable Catch (TAC). The TAC is then divided between Greenland and Canada. The Canada TAC is then allocated by the minister pursuant to the Fisheries Act. This system is used not just in Zone 1, but it is used throughout the Atlantic Fishery.

[31]      Accordingly, the applicant submits that the situation in other areas is in contrast with the situation in Zone 1, which is inequitable because the allocations for the Inuit fishers have not been dealt with, in the same way as allocations for other fishers fishing the same stock in these areas.

[32]      This inequity is demonstrated by the facts that while Groundfish licence holders from outside Nunavut are free to fish the entire quota off Baffin Island, Nunavut Inuit have no reciprocal access to other areas of the Atlantic Groundfish Fishery.

[33]      It is the applicant"s position that the minister made his 1998 turbot

     allocations on the wrong basis that:

(a)      Newfoundland is adjacent to sub-area 0;

(b)      article 15.3.7 of the Agreement refers to new entrants, i.e. persons not previously holding licences entering the fishery for the first time;

(c)      inter-jurisdictional obligations including factors relevant to the exercise of discretion under section 7 of the Fisheries Act such as the need to allocate fishery resources on the basis of equity taking into account adjacency to the resource, relative dependence of coastal communities and various fleet sectors upon that resource, economic efficiency and fleet mobility.

[34]      The applicant submits that Nunavut Inuit actively sought to participate in the turbot development program which commenced in 1991, but were not allowed in since priority was given to people who already had Atlantic groundfish licences, for which Nunavut"s applications were consistently rejected.

[35]      The applicant submits that it is unfair for the minister to tell the Inuit that he has to protect the interests of the people who have been instrumental in the development of the fishery, whereas the Inuit were excluded from participating in the offshore development program.

[36]      Finally, as the distribution of quotas in Zone 1 has to be viewed in the context of the Atlantic fishery as a whole, would the reasonable observer conclude that there has been a fair distribution of licences between the Nunavut Inuit and the other residents of Canada?

[37]      In view of the elements already established, the applicant submits that the answer is no.

RESPONDENT"S ARGUMENT

[38]      Respondent submits that notwithstanding the applicant"s argument about the impact of article 15.3.7 of the Nunavut Land Claims Agreement , there is still room for ministerial discretion. The article does not preclude consideration of other factors relevant to the exercise of the minister"s discretion under section 7 of the Fisheries Act .

[39]      Respondent further submits that there are really two tests that have to be applied in this application for judicial review of the minister"s decision. One is a correctness test, that is: Was the minister correct in his interpretation of an issue of law which was basic to the decision he had to make; and secondly, whether or not having regard to all of the circumstances, that decision was reasonable? In that regard, counsel pointed out that the circumstances in Zone 1 are the subject matter of the agreement and of the decision at issue and no other zone.

[40]      Concerning the allegation by applicant that the minister erred when he considered Newfoundland to be adjacent to area zero, as deposed by Mr. Rashotte when asked during the cross-examination, respondent submits that as a fact it may be, but put in context of the agreement, the answer might have been different. Adjacency may have a different meaning depending on the context it is being used in. Proximity and historic utilization are factors that may be accounted for in that respect.

[41]      As for the Atlantic groundfish licences, which applicant complains of not getting and which had the effect of denying access to Nunavut to other fisheries, it is submitted that access to other fisheries could have been obtained by the applicant either by hiring a boat in order to qualify for an Atlantic groundfish licence or through some acquisition of someone else"s licence, among other means.

[42]      Counsel for respondent explained that Zone 1 is not within the area claimed by the Nunavut. It is not within the Nunavut Settlement Area, it is outside that area. Zone 1 is not an area to which they had historic access, not an area that they made use of to any degree at all. Evidence is to the effect that the Inuit did not go out into the Davis Strait as they were fishing through the ice using hand lines.

[43]      Referring to the decision of the Court of Appeal6, respondent submits that the agreement, as demonstrated by article 15.3.7, purport to maintain a balance of interests between Nunavut fishers and other residents of Canada and this task is for the minister to assume. And as was further commented by the Court of Appeal, no priority access should be granted to Nunavut in order to respect the purpose of the Agreement.

[44]      It is further submitted that subsection 7(1) of the Fisheries Act bestows a broad discretion on the minister to issue, or authorize the issuance of fishing licences and the minister can develop its own factors or policies in determining licencing. It is in that context that the developmental fishery regime was established in an area where the Nunavut fishers had not yet gone. Therefore the minister"s authority in Zone 1 is still broader than it would be within the Nunavut Settlement Area.

[45]      In assigning quotas the minister did take into account the agreement since he allowed the Nunavut quota to remain stable despite the fact that it was not fully utilized by the Nunavut. The minister went further and provided a mechanism whereby the unused part of that quota could be taken offshore.

[46]      It is submitted that the dispute is more as to the modality of achieving the underlying purpose of article 15.3.7 of the agreement and not whether the minister ignored the Agreement itself.

[47]      Counsel for respondent pointed out that subsection 7(1) of the Fisheries Act was part of the legislative and statutory regime in existence when the parties negotiated the Agreement and that it was contemplated that the minister would continue to exercise powers under 7(1), albeit limited by whatever language is used by the parties in this Agreement.

[48]      It is further submitted that if adjacency to the fishery would be an absolute requirement, it would mean that only Nunavut fishers could be considered for licencing purposes. This reasoning would go directly against the letter of article 15.3.7 which proposes a balance of the interests with other residents of Canada.

[49]      On discussion about reciprocity as it relates to fairness, counsel for respondent submitted that the Agreement does not deal with reciprocity or with other areas than Zone 1 and that therefore reciprocity is not an issue to be addressed in this case.

[50]      In answer to applicant"s argument that inter-jurisdictional obligations mentioned in article 15.3.7 of the Agreement should be interpreted as referring to international agreements only, respondent submits that if "international" was meant, "international" would have been used as it has been throughout the Agreement in conjunction with "inter-jurisdictional". Therefore, it is inappropriate to confine "inter-jurisdictional" solely to international agreements because when the drafters of the agreement intended to refer to international or inter-provincial obligations, they did so explicitly.

[51]      As declared by the Court of Appeal in the Nunavut Tunngavik case, it is clear that the Agreement imposes upon the minister both procedural and substantive requirements. However, the final decision does in fact still remain with the minister. The Court of Appeal acknowledged that a discretion still exists, only, the Agreement has attenuated what had previously been considered an absolute power.

[52]      Respondent submits that the minister had to consider other people who may have interests as well as the economic needs and dependency of the people of the Nunavut territory. It is submitted that the minister complied with those requirements as demonstrated by the letter he wrote to the Northwest Territories Government and the June 9th, 1998 press release.

[53]      Counsel for respondent also contends that the affidavit by Mr. Copestake is unreliable, specifically to the extent where he suggests that the Nunavut Inuit were fishing in the Davis Strait from 1978. Counsel submits that there is no evidence of that whatsoever and that the testimony of Mr. Copestake who testified from belief rather than from knowledge is unreliable for the reason that Mr. Copestake was not responsible for the administration of the particular programs in issue.

ANALYSIS

[54]      In reviewing the decision of the minister which is the object of the application, this Court will have to decide if the minister"s 1998 decision with respect to the establishment of turbot quotas for the Davis Strait fishery violates the rights of the Nunavut Inuit fishermen included in the Nunavut Land Claims Agreement .

[55]      The relevant provisions are article 15.3.7 of the Agreement and section 7 of the Fisheries Act which read as follows:

     Article 15.3.7 of the Nunavut Land Claims Agreement:

Government recognizes the importance of the principles of adjacency and economic dependence of communities in the Nunavut Settlement Area on marine resources, and shall give special consideration to these factors when allocating commercial fishing licences within Zones I and II. Adjacency means adjacent to or within a reasonable geographic distance of the zone in question. The principles will be applied in such a way as to promote a fair distribution of licences between the residents of the Nunavut Settlement Area and the other residents of Canada and in a manner consistent with Canada's interjurisdictional obligations.

Section 7 of the Fisheries Act: 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. 7(2) Idem (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.

Article 7 de la Loi concernant les pêches 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. 7(2) Réserve (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.

[56]      The principles applicable to the judicial review of the exercise of ministerial discretion has been laid out by the Court of Appeal in Nunavut Tunngavik v. Canada (Minister of Fisheries and Oceans) (1998), 162 D.L.R. (4th) 625 (FCA) where the Court reviewed the context in which the exercise of ministerial discretion ought to be analysed.

[57]      It is important to note that the Court of Appeal was analysing a similar case, which involved a decision of the Minister of Fisheries and Oceans setting limits to the East Arctic turbot catch, and the terms of the Nunavut Land Claims Agreement. At issue was whether the terms of the Agreement had been breached by the Minister of Fisheries and Oceans in the making of a decision respecting fishing quotas for 1997.

[58]      Notwithstanding that the Court addressed the issue of an increase of the quotas with respect to the minister"s decision for 1997, the parameters of the review were similar and therefore, principles set out by the Court of Appeal can be applied in the present case.

[59]      The applicable standard of review was described 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 Assn. of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247 (C.A.), at page 260). This means, in this case, that the reviewing court ought to look at the manner in which the Minister exercised his discretion to determine whether the Minister acted in bad faith or on the basis of irrelevant factors, failed to take into account relevant factors or ignored relevant provisions which conditioned or limited the exercise of his otherwise absolute discretion (see Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2">[1982] 2 S.C.R. 2, at pages 7-8; Canada (Attorney General) v. Purcell, [1996] 1 F.C. 644 (C.A.), at page 653; Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.), at page 240).7

[60]      Therefore, there should be no intervention of this Court unless it is apparent that the minister failed in applying the Nunavut Land Claims Agreement.

[61]      Based on article 15.3.7 of the Agreement, a breakdown of the requirements to be observed by the minister could be listed as follows:

-      adjacency and economic dependence;

-      inter-jurisdictional obligations; and

-      fair distribution between Nunavut residents and other residents of Canada.

[62]      Also in the Nunavut Tunngavik decision, the Court of Appeal clearly stated that the requirements under article 15.3.7 are not to be viewed as meaning a "priority consideration":

A purposive interpretation of Section 15.3.7 evidences an intention of the parties to the Agreement to establish a principle of equity, not one of priority, in the distribution of commercial fishing licences within Zones I and II. In addition, the balancing of interests between the residents of the NSA and other residents of Canada has to be consistent with Canada's interjurisdictional obligations. (...)

The principles of adjacency and economic dependence to which the Minister has to give special consideration when allocating commercial fishing licences within Zones I and II are not defined as such in the Agreement. However, the word "adjacency" is defined in Section 15.3.7 itself to mean adjacent to or within a reasonable geographic distance of the zone in question. Had the parties intended the principle of adjacency to mean "priority of access" to the residents of the NSA or, as the Motions Judge ruled, priority consideration to the communities of the NSA for licences in Zones I and II over any other competing party, Section 15.3.7 would have been written quite differently.⁸

[63]      Having set the framework in which to review the 1998 decision of the minister to freeze quota allocations for the following five years, I will now proceed to analyse the evidence that was presented in order to determine compliance with the above-noted requirements as per article 15.3.7 of the Agreement.

[64]      Regarding the adjacency and economic dependence criteria, I will adopt the respondent"s position to the effect that the minister did not err by misinterpreting or failing to apply the requirements.

[65]      This conclusion is supported by the evidence. Following the March 12, 1998 recommendations by the Nunavut Wildlife Management Board regarding the 1998 turbot allocations in the Davis Strait fishery, the minister responded and rejected the recommendations by letter dated May 11, 1998. In my opinion portions of this reply clearly indicate that the minister gave special considerations to Nunavut residents:

... I also note that it is our position that special consideration is given to Nunavut Inuit and the communities of the NSA in the division of the allocations of the Canadian quota.

(...)

I am also proposing that the Nunavut would receive 50% of any increases above the current Canadian quota level of 5,500t during this five-year plan. This approach provides special consideration for Nunavut interests should the quota increase.

(...)

... We cannot forget that the Nunavut allocation in this fishery has risen from 100t to 1,500t (not including catches in Division 0A) over the past decade while the Canadian quota has been reduced from 12,500t to 5,500t during this same period.9

[66]      I would agree that the above statement by the minister represents clear evidence that he had in mind the special considerations to be given to the Nunavut residents pursuant to article 15.3.7 of the Agreement and I find no evidence to the contrary.

[67]      On the issue of inter-jurisdictional obligations, applicant"s argument that inter-jurisdictional obligations mentioned in article 15.3.7 refers to international agreements only has to be rejected. I believe that had the drafters of the Agreement intended it to refer to international agreements only they would have said so as they did explicitly in other parts of the Agreement.

[68]      The more difficult issue to resolve in my opinion is whether the minister erred by rendering a decision that would not reflect a fair distribution between Nunavut residents and other residents of Canada according to the Agreement. However, I acknowledge that fairness has to be appreciated in the specific context surrounding the available Atlantic fishery resource.

[69]      The minister may act within the limits of his broad discretion under section 7 of the Fisheries Act, which is now hampered by the requirements of article 15.3.7 of the Agreement. Therefore the requirements of the Agreement are imposed on the minister, but the Agreement does not preclude the minister from appreciating other considerations as well. This reasoning becomes apparent when reading the legal dispositions together.

[70]      The applicant sees unfairness in the fact that the Nunavut Inuit were shut out of the development fisheries program because they did not comply with the conditions for Atlantic groundfish licencing. The result being that the Nunavut Inuit fishermen were denied access to other areas.

[71]      Respondent contended that the Nunavut could have rendered itself eligible to those licences either by hiring a boat in order to qualify for an Atlantic groundfish licence or through some acquisition of someone else"s licence, among other means.

[72]      The sub-question which we are now facing is whether the policy put in place by the minister for the purpose of managing the Development Fisheries Program, and notably the decision to establish upon which criteria one could be granted an Atlantic groundfish licence, can be reviewed by this Court in order to determine if the final results constitute a fair distribution of the fishing quotas between Nunavut residents and other residents of Canada.

[73]      In other words, did the application by the minister of such policy resulted in an unfair distribution of the fishing quotas according to the Agreement?

[74]      In a memorandum dated April 8, 1991, from the Department of Fisheries and Oceans to the minister, re: Groundfish Developmental Program - Approval of participants, considerations are brought to the attention of the minister among which figures:

A number of native groups made applications to the program. In the assessment process none were successful, primarily because of the use of foreign vessels and minimal on-shore processing. However, one was included in the recommended list because of the more recent recognition of native issues, particularly regarding their access to adjacent marine resources (i.e. Agreement in Principle with Baffin Island Inuit).¹⁰

[75]      This statement reveals that even in 1991, before the Agreement was ratified, the minister considered the adjacency principle when evaluating participants for the Groundfish Development Program. The fact that a total of 53 proposals were received for access to this program in 1991, totalling 178,660t, which was well in excess of the 30,396t available, indicates that the minister had the difficult task to evaluate the many applications with as many demands with little resources available.

[76]      The applicant filed the revised draft of an "Historic Resource Access/Provincial Share Groundfish Summary Report" prepared by the Federal Provincial Atlantic Fisheries Committee - Working Group and dated November 20, 1997 which provides that:

The purposes of the exercise was: To determine the historical resource access to the Atlantic fishery by fishermen and fishing enterprises from the five eastern provinces and NWT. Quantification of historical resource access was to be based on a numerical share of past allocations or catches, or some more flexible indicator, if appropriate.¹¹

[77]      One of the specific tasks of the Working Group was to "Review the principles such as adjacency and historical dependence, to determine how these apply to the work. Review the implication of DFO policies, e.g., licensing policy"12. After identifying concerns of each of the eastern provinces and the territories, the Working Group concluded:

The working group recognized that historic shares are important factors in the groundfish allocation process. However, other factors such as adjacency, fairness and equity, growth and decline in stocks, historic dependence and native rights and land claim obligations have to also be considered. Provincial shares developed through this process could be used as an indicator (benchmark) to monitor relative provincial shares in the future.¹³

[78]      Acknowledging that the report may lead to the conclusion that fishers of a province adjacent to a fishing area are allocated the majority share of the groundfish resource, it can not be automatically be derived however, that such a conclusion was based on the adjacency factor alone. It would appear normal that the fishers of those adjacent provinces have developed the industry to a point to make them best candidates for the Groundfish Program.

[79]      Moreover, it has to be noted that the working group report also took notice of a number of concerns expressed by each other provinces and territories regarding the distribution of stock.

[80]      Applicant complains that the minister did not follow the NWMB recommended allocations for 1998. Those being recommendations, the minister was not bound by these recommendations made by the NWMB for the 200-mile fishing zone beyond the Nunavut Settlement Area as provided by the Agreement itself:

3.5.1      For greater certainty, Inuit shall enjoy additional rights to areas outside the Nunavut Settlement Area as stipulated by other provisions of the Agreement.

5.6.16      Subject to the terms of this Article, the NWMB shall have sole authority to establish, modify or remove, from time to time and as circumstances require, levels of total allowable harvest or harvesting in the Nunavut Settlement Area.

15.3.4      Government shall seek the advice of the NWMB with respect to any wildlife management decision in Zones I and II which would affect the substance and value of Inuit harvesting rights and opportunities within the marine areas of the Nunavut Settlement Area. The NWMB shall provide relevant information to Government that would assist in wildlife management beyond the marine areas of the Nunavut Settlement Area.

15.4.1      The NIRB, the NWB, the NPC, and the NWMB may jointly, as a Nunavut Marine Council, or severally advise and make recommendations to other government agencies regarding the marine areas, and Government shall consider such advice and recommendations in making decisions which affect marine areas.

[81]      The applicant maintained that Nunavut has had a strong economic dependence on this marine resource. However, evidence concerning this aspect is contradictory.

[82]      In his affidavit Mr Barry Rashotte, as the Director, Resource Management, Atlantic in the Fisheries Management Sector of the federal Department of Fisheries and Oceans, states:

60. In making these recommendations, I and other DFO officials were fully aware that the NWMB wanted the Nunavut share of the fishery to increase dramatically in 1997. However, we also knew that contrary to what is suggested in paragraph 4 of the affidavit of Henry Copestake Nunavut fishing activity between 1985 and 1993 occurred in the Cumberland Sound along the shore during the winter when the sea was covered by ice - not in that part of Sub-area 0 outside the NSA more properly described as the Davis Strait. We were also aware that after an initial flurry of activity in the early 1990's, in which Nunavut fishers never utilized the entire quota assigned to them, the harvest fell off dramatically. The fishery in the Davis Strait outside the NSA is relatively new and had been developed primarily by other fishers. There was little or no evidence of economic dependence on that fishery by Nunavut. While there was no doubt that the NWMB would like to develop greater economic dependency on the fishery given high unemployment and limited economic activity in the area, that consideration had been accommodated by past allocation decisions.¹⁴

[83]      On the other hand, Mr. Henry Copestake, who has been actively involved in the Arctic fishing industry and has acted as a fisheries consultant to various Inuit organizations and to the Government of the Northwest Territories since 1986, reports in his affidavit:

4. Nunavut Inuit were the only Canadian fishers to record substantive turbot harvests in the Davis Strait from 1978 when the Canadian Government declared a 200-mile exclusive economic zone to 1990. Attached to this my affidavit and marked as Exhibit "C" is a table from the Atlantic Groundfish Management Plan, 1997 which sets out the historical catch data for turbot for Sub-Area 0.¹⁵

[84]      And the above mentioned table16 indicates the following:

GREENLAND HALIBUT

HISTORICAL DATA

CATCHES	1986	1987	1988	1989	1990	1991	1992	1993	1994	1995
NUNAVUT - inshore				128	255	141	385	46	400	285
NUNAVUT - offshore			2				1,020	20

[85]      Such historical data does not support Mr. Copestake" declaration and rather supports the fact that Nunavut fishers did not fish for turbot in the Davis Strait until they joined the developmental program in 1991 and harvest prior to 1990 can not be considered as "substantive".

[86]      Applicant"s argument that the minister did not observe reciprocity since Nunavut fishers do not have access to competitive quota in the Davis Strait, or elsewhere in Eastern Canada while other fishers have access to turbot anywhere along the Atlantic coast including the waters adjacent to Nunavut, is not relevant to the issue of fairness. It was not an obligation of the minister to take into consideration such factor according to the Agreement, and such an absence of reciprocity may well be justified in consideration of all the other factors to be assessed.

[87]      "A fair distribution of licences between the residents of the Nunavut Settlement Area and the other residents of Canada" as stipulated by article 15.3.7 of the Agreement does not imply a mandatory preference to be given to Nunavut residents. On the contrary, it necessarily implies that other factors than those favouring the Nunavut residents can and even should be taken into consideration, otherwise the Agreement would have said so, maybe by using terms such as "priority" which, as stated earlier, can not be read into the Agreement as determined by the Federal Court of Appeal.

[88]      The Agreement does not expressly or implicitly provide that interests of others identified in the Agreement should be disregarded or minimized.

[89]      The evidence better indicates that the minister was fully aware of his obligations under the Agreement and that he addressed the adjacency and economic dependence factors in a way to promote a fair distribution of licences.

CONCLUSION

[90]      Keeping in mind the standard of review applicable which dictates that the Court ought to look at the manner in which the minister exercised his discretion to determine whether the minister acted in bad faith or on the basis of irrelevant factors, failed to take into account relevant factors or ignored relevant provisions which conditioned or limited the exercise of his otherwise absolute discretion; it is impossible to conclude, under the terms of the Agreement and according to the discretion under the Fisheries Act that the minister failed in applying the proper principles in such a way to deny the Nunavut residents a fair distribution of the Atlantic fishery resource.

[91]      The authority of the NWMB was in the nature of advice and recommendations and the minister did look into it.

[92]      It was within the minister"s discretion and within the limits of the Agreement to take into consideration a number of factors including growth and decline in stock.

[93]      The Agreement mentions that special consideration ought to be given to the adjacency and economic dependence factors and special consideration was given.

[94]      Finally, in view of the situation that prevails in the Atlantic affecting every eastern province and territory with respect to Atlantic fishery, the end result provided by the minister"s decision on quota allocation can not be seen as unfair in view of the important decline in stock.

[95]      For all these reasons, the application for judicial review is dismissed.

                         Pierre Blais

                         Judge

OTTAWA, ONTARIO

September 30, 1999

__________________

¹      Constitution Act, 1982, Schedule B, Canada Act 1982 (U.K.) 1982, c.11, s.35.

²      Nunavut Land Claims Agreement Act, S.C. 1993, c.29, s.4(1).

³      Fisheries Act, R.S.C., 1985, c.F-14, s.7.

⁴      Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) (1997), 149 D.L.R. (4^th) 519 (TD).

⁵      Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) (1998), 162 D.L.R. (4^th) 625 (FCA).

⁶      Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) , op cit note 5.

⁷      Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) loc cit note 5, p. 635.

⁸      id. pp. 643-644.

⁹      Applicant"s record, volume III, tab A-45.

¹⁰      Applicant"s record, volume II, Tab 1, p.232.

¹¹      Applicant"s record, volume III, Tab B-1, p. 785.

¹²      Ibid., p.785.

¹³      Ibid., p.793.

¹⁴      Respondent"s record, volume I, Tab 1, pp. 12-13.

¹⁵      Applicant"s record, volume IV, Tab 1, p. 820.

¹⁶      Applicant"s record, volume IV, Tab 1-C, p. 855.