Date: 20070529
Docket: T-781-06
Citation: 2007 FC 567
Ottawa,
Ontario, May 29, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
The AHOUSAHT INDIAN BAND
The DITIDAHT INDIAN BAND
The EHATTESAHT INDIAN BAND
The HESQUIAHT INDIAN BAND
The HUPACASATH INDIAN BAND
The HUU-AY-AHT INDIAN BAND
The KA:’YU:K’T’H/CHE:K’TLES7ET’H’ INDIAN
BAND
The MOWACHAHT / MUCHALAHT INDIAN BAND
The NUCHATLAHT INDIAN BAND
The TLA-O-QUI-AHT INDIAN BAND
The TOQUAHT INDIAN BAND
The TSESHAHT INDIAN BAND
The UCHUCKLESAHT INDIAN BAND and
The UCLUELET INDIAN BAND
Applicants
and
THE
MINISTER OF FISHERIES AND OCEANS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review in respect of a decision of the Minister
of Fisheries and Oceans (the respondent or the Minister) made on or about April
10, 2006, pursuant to the Fisheries Act, R.S.C. 1985, c. F-14, to
implement a commercial groundfish pilot plan on the Pacific Coast of British
Columbian (the Pilot Plan) to include, among other things, new terms of
licences and the assignment of individual transferable quotas to commercial
fishermen for rockfish, lingcod, and dogfish, which fisheries had not
previously been subject to individual transferable quota management regimes
(the Decision).
BACKGROUND
[2]
The
applicants in this case are fourteen First Nations (the Nuu-chah-nulth First
Nations) that collectively make up the Nuu-chah-nulth culture and language
group and are located on the West Coast of Vancouver Island. They have formed
the Nuu-chah-nulth Tribal Council (the NTC), which is responsible for, among
other things, co-ordinating certain aspects of the relations between the
Nuu-chah-nulth First Nations and government representatives, including the
Minister and other persons acting on behalf of the Department of Fisheries and
Oceans Canada (DFO). The NTC maintains a fisheries department to offer services
to its member First Nations on matters related to the management of aquatic
resources, and has established a resource management organization called Uu-a-thluk,
the central forum of which is the Council of Ha’wiih (hereditary chiefs and
their representatives), which is supported by a Joint Technical Working Group
(JTWG) made up of members from DFO, First Nations, and the NTC. The applicants
are currently involved in the British Columbia treaty negotiation
process, as well as litigation before the British Columbia Supreme Court, in
which they are pursuing aboriginal commercial fishing rights.
[3]
The respondent in this case is the Minister of Fisheries
and Oceans. Moreover, there were three people within DFO who had dealings with
the applicants in this file. They are Ronald Kadowaki, the Lead Director for
Pacific Fisheries Reform, Diana Trager, the Regional Resource Management
Co-ordinator for the Groundfish Management Unit, and Paul Sprout, the Regional
Director General for DFO in the Pacific Region.
[4]
At issue in this case is the process that led to the
introduction by the Minister of a three-year Pilot Plan for the management of
the Pacific Coast commercial groundfish fisheries in April 2006. Under the Pilot Plan
adopted by the Minister, fishers are now to be fully accountable for their
catch. In order to achieve this goal, individual quotas (IQs) were introduced
in those groundfish fisheries that were not yet subject to IQs. In addition,
such quotas are to be eligible for reallocation between all commercial
groundfish fisheries, in order to enable vessels to account for bycatch
mortality. These measures are to be supported by new monitoring standards
previously announced that include 100 per cent at-sea electronic and video
monitoring of all commercial groundfish trap/hook and line vessels. The
respondent notes that implementation of the Pilot Plan was particularly
important given the other measures already implemented, in order to avoid early
closure of the fisheries, a likely outcome without the quota reallocation
measures.
[5]
According to the respondent, DFO had already determined by
2001 that it would be necessary to implement changes in the Pacific Coast groundfish
fisheries to deal with significant conservation and protection issues relating
to endangered and at risk rockfish species and bycatch mortality, and to allow
DFO to accurately assess stocks by improving monitoring and catch reporting for
all species. Based on past experience, DFO also acknowledged that extensive
stakeholder engagement would be necessary to ensure the successful
implementation of any new policy.
[6]
Discussions between DFO and industry associations commenced
in March 2003, and resulted in discussion papers being prepared and in the
formation of the Commercial Groundfish Integrated Advisory Committee (CGIAC),
which had representatives from the commercial fishing industry, including the
four major industry associations in groundfish fisheries, as well as the Province of British Columbia and DFO. The CGIAC also included
representatives of coastal communities, of the Marine Conservation Caucus, of
the Sports Fish Advisory Board and of the B.C. Aboriginal Fisheries Commission
(BCAFC). It should be noted that the BCAFC designated someone from the NTC as
their representative in 2004 and in 2005. While the designated representative failed
to attend the four meetings of the CGIAC in 2004, the BCAFC was represented at
the 2005 meetings, first by an NTC commercial fisher and, subsequently, by an
employee of the NTC.
[7]
The CGIAC created a committee comprised of sixteen of its
members, known as the Commercial Industry Caucus (CIC), which prepared the
proposal that later became the Pilot Plan. There was no aboriginal
representative on this committee.
[8]
In March 2005, all hook/line and trap commercial groundfish
fisheries licence eligibility holders and vessel owners were informed, in a
letter sent by DFO, that mandatory 100 percent at-sea monitoring would be
implemented starting in 2006. Also in March 2005, the Commercial Industry
Caucus Pilot Integration Proposal (the Reform Proposal) was submitted to the
CGIAC and to DFO.
[9]
Stakeholder consultation on the Reform Proposal began in
June 2005, first with the creation of a website by DFO, providing information
on the Reform Proposal and the various policies that led to this proposal, and
second, by sending a letter, along with a consultation guide, to all groundfish
fisheries licence holders, through which they were invited to send their
comments to DFO on the Reform Proposal. Letters and consultation guides were
also sent to all British Columbia
coastal First Nations, seeking their input. The second stage of the stakeholder
consultations took place in October and November 2005, when representatives
from DFO travelled to four cities in the province to engage in discussions with
stakeholders. The final stage of the consultation process consisted of bilateral
discussions with affected First Nations. That being said, the applicants were
not included in these planned bilateral discussions as the respondent did not
consider their asserted aboriginal rights to be adversely impacted by the
Reform Proposal.
[10]
The applicants note that the notion of bilateral
consultation with the Niu-chah-nulth First Nations was first raised by the
applicants in January 2005, and then again at the CGIAC meetings of April 15,
2005 and May 30, 2005.
[11]
The first meeting between DFO representatives and
representatives of the applicants where the Reform Proposal was to have been
discussed was the JTWG meeting that was to have been held in September 2005.
However, this meeting was cancelled by the NTC as the head of the NTC Fisheries
Department, Dr. Hall, was not available.
[12]
The meeting was rescheduled on November 18, 2005, at which
time Ms. Trager, representing DFO, met with NTC officials to discuss various
fisheries issues, including the Reform Proposal. A further meeting took place
between DFO representatives and representatives of the applicants on November
28, 2005, where Ms. Trager provided a presentation on the Reform Proposal and
answered questions.
[13]
Another meeting of the JTWG was held on November 29, 2005,
but the discussion was limited to the draft consultation protocol proposed by
the applicants in a letter dated November 23, 2005, which would allow
consultation to proceed on a number of fisheries issues, including the Reform
Proposal. There were six stages to this consultation protocol:
1.
Identification of policy proposals
2.
Explanation and initial discussion of the policy proposals
3.
Provision and consideration of further information
4.
Nuu-chah-nulth response
5.
DFO response
6.
Accommodation
[14]
The respondent agreed to take the consultation protocol
under advisement and, in a letter dated December 20, 2005, Mr. Sprout noted
that they were still awaiting comments from their colleagues in Ottawa, but that DFO was essentially in agreement with the first
five stages of the consultation protocol, and suggested that they should
proceed immediately with these stages.
[15]
A subsequent meeting was held on January 23, 2006, but
discussion was limited to the consultation protocol, since the applicants
maintained that they were not prepared to discuss the Reform Proposal until DFO
committed to the proposed consultation protocol. At this meeting, Mr. Kadowaki
advised the applicants’ representatives that DFO was essentially in agreement
with the first five stages of the consultation protocol, but that the sixth
stage would depend on what happened in the first five stages. Additionally, Mr.
Kadowaki notes in his affidavit that he stressed the urgency of the groundfish
initiative, as one of the major groundfish fisheries would be opening in March
2006, and thus that it was imperative that the consultations be undertaken on
an urgent basis. He also indicated that DFO was not prepared to agree to the
timeline proposed in the consultation protocol for this initiative.
[16]
Another attempt was made to schedule a meeting for the
first week of February 2006 to move on to stage 3 of the consultation protocol,
which was rebuked by the applicants, stating again that they were not prepared
to engage in substantial consultations until there was an agreement on the
consultation protocol. Dr. Hall stated that the preparation of questions for stage
3, while underway, had not been a high priority “pending agreement on the
Consultation Protocol and in relation to other higher priority activities in
recent weeks”.
[17]
In a letter dated February 16, 2006, Mr. Kadowaki wrote
that “DFO is in agreement with many aspects of your proposed consultation
protocol and we believe that it can provide the basis of a useful and practical
framework for consultations”. Mr. Kadowaki also reiterated the urgency of consultations
on the Reform Proposal, as implementation was being considered for the 2006
fishing season.
[18]
While the applicants submit that, through this letter, DFO
agreed to be bound by the consultation protocol, the respondent maintains that
there was no such commitment by DFO. The respondent also notes that this letter
must be read in light of the previous letter sent by Ms. Trager dated January
16, 2006, where she indicated to the applicants that DFO was considering
implementing the Reform Proposal for the 2006 fishing season, and in light of
Mr. Kadowaki’s affidavit where he states that it was made clear to the
applicants that DFO did not agree with the proposed timeline.
[19]
On February 20, 2006, the applicants indicated that they
were prepared to move forward with the consultations and proceed with stage 3 of
their consultation protocol. As such, they forwarded 102 questions to Ms.
Trager.
[20]
On February 24, 2006, another meeting was held at which DFO
provided draft answers to some of the questions submitted. Responses were later
provided by DFO on 94 of the 102 questions in an email sent March 13, 2006.
[21]
No further meetings were held after that, but
correspondence continued to be exchanged between the parties, including letters
from the applicants objecting to the lack of consultation and voicing their
opposition to the Reform Proposal. A letter was also sent seeking a meeting
with the Minister during his visit to the region in March 2006. While the
Minister did not meet with them on that occasion, the respondent notes that
there was a meeting between the Minister and the Nuu-chah-nulth First Nations
in January 2006.
[22]
A series of memoranda to the Minister were sent on February
17, 2006, March 17, 2006, March 31, 2006 and April 5, 2006, in which the
concerns expressed by First Nations are clearly noted. In particular, the first
memorandum goes into much detail about the opposition from First Nations,
including the NTC.
[23]
When the final proposal was released in April 2006, it
largely reflected the CIC proposal to the CGIAC, although some changes were
made, including the implementation of the proposal as a pilot plan for a
three-year period, the fact that quota reallocation between licences within a
groundfish fishery were to take place on a temporary basis for the current
fishing year only, and a commitment by DFO that additional lingcod and dogfish
catch history would be made available to First Nations as lingcod and dogfish
quotas.
[24]
As noted by the applicants, the Pilot Plan was introduced
before all stages of the consultation plan submitted by the applicants were completed.
[25]
The applicants then brought an application for judicial
review before this Court on May 5, 2006. Essentially, the applicants submit
that the Minister failed to uphold the honour of the Crown and to fulfill his
duty to consult and accommodate the Nuu-chah-nulth First Nations before
implementing the Pilot Plan.
[26]
As a result, the applicants seek the following:
§
a declaration that the Minister has breached his
constitutional duty pursuant to subsection 35(1) of the Constitution Act,
1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982,
c.11, to consult with and accommodate the applicants prior to the Decision
being made and the Pilot Plan being implemented;
§
a declaration that the Minister has breached his
constitutional duty pursuant to subsection 35(1) of the Constitution Act,
1982, and has failed to uphold the honour of the Crown, by failing to
consult with and accommodate the applicants pursuant to the terms of a consultation
protocol agreed to by DFO and the applicants prior to the Decision being made
and the Pilot Plan being implemented;
§
a declaration that the Minister has breached the
applicants’ right to a fair process by failing to abide by the terms of the consultation
protocol agreed to by the parties;
§
an order in the nature of certiorari pursuant to
paragraph 18.1(3)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7,
quashing or setting aside the Decision and declaring the Pilot Plan to be
invalid and unlawful.
ISSUES FOR CONSIDERATION
[27]
The following issues must be considered in this application:
1)
What was the scope of the Minister’s duty to consult with
the applicants in respect of the decision to implement the Pilot Plan?
2)
Were the steps taken by the Minister sufficient to meet the
duty to consult in this case?
3)
What, if anything, is the appropriate remedy to be ordered
by this Court?
ANALYSIS
1) What was the scope of the Minister’s duty to consult
with the applicants in respect of the decision to implement the Pilot Plan?
[28]
The key decision with respect to the duty to consult and accommodate
First Nations is undoubtedly the decision of the Supreme Court of Canada in Haida
Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511. The
source of the duty to consult and accommodate is explained as follows by the
Court, at paragraphs 16 and 20:
¶ 16
The government's duty to consult with Aboriginal peoples and accommodate their
interests is grounded in the honour of the Crown. The honour of the Crown is
always at stake in its dealings with Aboriginal peoples: see for example R.
v. Badger, [1996] 1 S.C.R. 771,
at para. 41; R. v. Marshall, [1999] 3 S.C.R. 456.
It is not a mere incantation, but rather a core precept that finds its
application in concrete practices.
…
¶ 20
Where treaties remain to be concluded, the honour of the Crown requires
negotiations leading to a just settlement of Aboriginal claims: R. v.
Sparrow, [1990] 1 S.C.R. 1075,
at pp. 1105-6. Treaties serve to reconcile pre-existing Aboriginal sovereignty
with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by
s. 35 of the Constitution Act, 1982. Section 35 represents a promise of
rights recognition, and "[i]t is always assumed that the Crown intends to
fulfill its promises" (Badger, supra, at para. 41). This promise is
realized and sovereignty claims reconciled through the process of honourable
negotiation. It is a corollary of s. 35 that the Crown act honourably in
defining the rights it guarantees and in reconciling them with other rights and
interests. This, in turn, implies a duty to consult and, if appropriate,
accommodate.
[29]
The Court also considered when this duty to consult and
accommodate would arise at paragraphs 27 and 35 of Haida, above:
¶ 27
The answer, once again, lies in the honour of the Crown. The Crown, acting
honourably, cannot cavalierly run roughshod over Aboriginal interests where
claims affecting these interests are being seriously pursued in the process of
treaty negotiation and proof. It must respect these potential, but yet
unproven, interests. The Crown is not rendered impotent. It may continue to
manage the resource in question pending claims resolution. But, depending on
the circumstances, discussed more fully below, the honour of the Crown may
require it to consult with and reasonably accommodate Aboriginal interests
pending resolution of the claim. To unilaterally exploit a claimed resource
during the process of proving and resolving the Aboriginal claim to that
resource, may be to deprive the Aboriginal claimants of some or all of the
benefit of the resource. That is not honourable.
…
¶ 35
But, when precisely does a duty to consult arise? The foundation of the duty in
the Crown's honour and the goal of reconciliation suggest that the
duty arises when the Crown has knowledge, real or constructive, of the
potential existence of the Aboriginal right or title and contemplates conduct
that might adversely affect it: see Halfway River First Nation v. British
Columbia (Ministry of Forests), [1997] 4 C.N.L.R. 45
(B.C.S.C.), at p. 71, per Dorgan J.
[30]
The fact that the Crown ought to have had knowledge of the
applicants’ claim in terms of their right to fish is not questioned by the
respondent in this case. What is questioned by the respondent is the fact that
the conduct contemplated by the Minister might adversely affect the aboriginal
right in question.
[31]
The respondent states, and the applicants do not question
that assertion, that no adverse impacts on the aboriginal right to fish for FSC
purposes could be identified by the applicants and thus no duty to consult
would have arisen from that. Rather, the concerns raised by the applicants with
respect to the Reform Proposal all center on the imposition of quotas, and were
expressed along the following lines:
a)
quotas impact treaty settlements;
b)
quotas have socio-economic impacts on First Nations
communities;
c)
quotas have a particular impact on small boat operators and
Nuu-chah-nulth members typically participate in fisheries using small boats;
d)
there is a need to access capital to acquire quotas; and
e)
there is a pattern of corporate consolidation of ownership
of licences and quotas.
[32]
The respondent submits that only the concerns relating to
points c) and d) are matters that would relate to an aboriginal right, as they
show a potential for adverse cost impacts on those engaged in the commercial
groundfish fisheries to acquire quotas, and thus only these would trigger a
duty to consult. In particular, the applicants have put much emphasis on the
first point, both in letters addressed to DFO officials and to the Minister
himself, as they are concerned that IQs negatively impact Canada’s financial ability to settle treaty claims and
litigations involving First Nations. However, as the respondent points out,
concerns over any impact on the treaty process, which is a discrete process,
would not trigger a duty to consult. The treaty negotiation process and the
litigation in which the applicants are involved are only relevant insofar as
they demonstrate that the applicants have asserted a right to fish
commercially, as it is this assertion that triggers the duty to consult.
Furthermore, I would add that any potential trade-offs between the government’s
objective as relates to conservation of fisheries resources and the increased
costs for the government in the context of aboriginal treaty negotiations that
might result from the adoption of such a proposal, are internal policy concerns
for the government and do not directly impact on any right of the applicants
that would trigger the duty to consult. Therefore, the only right that remains
at issue is the applicants’ right to fish commercially.
[33]
Establishing the right which will give rise to the duty to
consult is essential in order to determine the scope and content of this duty,
since the Supreme Court of Canada has recognized that the precise scope of this
duty must be looked at on a spectrum. The Court wrote at paragraphs 43 to 45 of
Haida, above:
¶ 43
Against this background, I turn to the kind of duties that may arise in
different situations. In this respect, the concept of a spectrum may be
helpful, not to suggest watertight legal compartments but rather to indicate
what the honour of the Crown may require in particular circumstances. At one
end of the spectrum lie cases where the claim to title is weak, the Aboriginal
right limited, or the potential for infringement minor. In such cases, the only
duty on the Crown may be to give notice, disclose information, and discuss any
issues raised in response to the notice. "'[C]onsultation' in its least
technical definition is talking together for mutual understanding": T.
Isaac and A. Knox, "The Crown's Duty to Consult Aboriginal People"
(2003), 41 Alta. L. Rev. 49,
at p. 61.
¶ 44 At
the other end of the spectrum lie cases where a strong prima facie case
for the claim is established, the right and potential infringement is of high
significance to the Aboriginal peoples, and the risk of non-compensable damage
is high. In such cases deep consultation, aimed at finding a satisfactory
interim solution, may be required. While precise requirements will vary with
the circumstances, the consultation required at this stage may entail the
opportunity to make submissions for consideration, formal participation in the
decision-making process, and provision of written reasons to show that
Aboriginal concerns were considered and to reveal the impact they had on the
decision. This list is neither exhaustive, nor mandatory for every case. The
government may wish to adopt dispute resolution procedures like mediation or
administrative regimes with impartial decision-makers in complex or difficult
cases.
¶ 45
Between these two extremes of the spectrum just described, will lie other
situations. Every case must be approached individually. Each must also be
approached flexibly, since the level of consultation required may change as the
process goes on and new information comes to light. The controlling question in
all situations is what is required to maintain the honour of the Crown and to
effect reconciliation between the Crown and the Aboriginal peoples with respect
to the interests at stake. Pending settlement, the Crown is bound by its honour
to balance societal and Aboriginal interests in making decisions that may
affect Aboriginal claims. The Crown may be required to make decisions in the
face of disagreement as to the adequacy of its response to Aboriginal concerns.
Balance and compromise will then be necessary.
[34]
The applicants insist that they have presented a strong prima
facie case to establish their right to fish commercially, which the
respondent does not dispute in this application. That being said, the
respondent insists that the scope of the duty to consult is located at the
lower end of the spectrum, since the potential for infringement or adverse
effect is minor.
[35]
The criteria of adverse effect in relations to the scope of
the Crown’s duty was also discussed by the Supreme Court of Canada in Mikisew
Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3
S.C.R. 388, where Justice Binnie wrote at paragraph 55:
The duty to consult
is, as stated in Haida Nation, triggered at a low threshold, but adverse impact
is a matter of degree, as is the extent of the Crown’s duty. Here, the impacts
were clear, established, and demonstrably adverse to the continued exercise of
the Mikisew hunting and trapping rights over the lands in question.
[36]
In this case, we are not dealing with a claim to a specific
piece of land where the government might be contemplating some development
project, or even the issuance of a licence to exploit resources on said land
which might substantially deplete the resource in question. Rather, we are
dealing with a claim of an aboriginal right to fish commercially, in the
context of a proposal by the government to implement a program of quotas with a
view, first and foremost, to encourage conservation, as well as to meet a
number of other objectives, such as achieving greater accountability and improving
economic viability. As such, the respondent argues that, rather than
infringing the applicant’s alleged rights, the Pilot Plan will help protect the
groundfish fisheries, for the benefit of all Canadians, including the
applicants. Since there is thus no or very little adverse effect, then the
scope of the Crown’s duty to consult is limited.
[37]
In fact, the respondent argues that the applicants failed
to clearly articulate what, if any, potential impacts the Reform Proposal would
have on their asserted aboriginal rights. Furthermore, considering that IQs had
been in existence in most sectors of the commercial groundfish fisheries since
at least 1997, and that the impact of IQs had already been studied by the First
Nations Panel on Fisheries, the respondent insists that it would be
disingenuous for the applicants to argue now that they could not articulate
these impacts until they had received the answers to their questions from DFO.
[38]
The respondent also notes that when evaluating the adequacy
of consultation, one must consider that the asserted rights are commercial
rights with no inherent limitation. Based on existing jurisprudence that
preceded Haida, above, the respondent submits that there are a broad
range of objectives, which the government can legitimately pursue that can
justify an infringement of aboriginal commercial rights, and when the
infringement is justified, then any duty to consult will be minimal, such that
the giving of notice and a subsequent discussion of issues would suffice. To
support his argument, the respondent relies on jurisprudence from the Supreme
Court of Canada which preceded the Haida decision, in particular R.
v. Nikal, [1996] 1 S.C.R. 1013 and R. v. Gladstone, [1996] 2 S.C.R.
723.
[39]
In Nikal, above, the Supreme Court of Canada
considered the question of whether the requirement that even an aboriginal
person with a constitutionally protected right to fish must obtain a licence
violated section 35 of the Constitution Act, 1982. The Court stated the
following with regards to the limitation of rights in general, at paragraph 92
of Nikal, above:
…
It has frequently been said that rights do not exist in a vacuum, and that the
rights of one individual or group are necessarily limited by the rights of
another. The ability to exercise personal or group rights is
necessarily limited by the rights of others. The government must
ultimately be able to determine and direct the way in which these rights should
interact. Absolute freedom in the exercise of even a Charter or constitutionally
guaranteed aboriginal right has never been accepted, nor was it
intended. …
The Supreme Court then
noted at paragraph 94:
…
Here, the aboriginal right to fish must be balanced against the need to
conserve the fishery stock. The existence of an aboriginal right to
fish cannot automatically deny the ability of the government to set up a
licensing scheme or program since the exercise of the right itself is dependant
on the continued existence of the resource. The very right to fish would
in time become meaningless if the government could not enact a licensing scheme
which could form the essential foundation of a conservation program. …
[40]
In Gladstone, above, the Supreme Court of Canada
first reiterated the two-stage test set out in R. v. Sparrow, [1990] 1
S.C.R. 1075, for determining whether government actions infringing aboriginal
rights can be justified. The two stages were: 1) the government must
demonstrate that it was acting pursuant to a valid legislative objective and 2)
the government must demonstrate that its actions are consistent with the
fiduciary duty of the government towards aboriginal peoples. The Supreme Court of
Canada in Gladstone, above, then sought to distinguish this decision
somewhat on the basis that the right identified in Sparrow was the right
to fish for food, social and ceremonial purposes, a right with an inherent
limitation, while the right to fish in Gladstone was for commercial
purposes, a right without internal limitation. The Court then stated at
paragraph 59 of Gladstone,
above:
¶ 59
Where the aboriginal right has no internal limitation, however, what is
described in Sparrow as an exceptional situation becomes the ordinary: in the
circumstance where the aboriginal right has no internal limitation, the notion of
priority, as articulated in Sparrow, would mean that where an aboriginal right
is recognized and affirmed that right would become an exclusive
one. Because the right to sell herring spawn on kelp to the
commercial market can never be said to be satisfied while the resource is still
available and the market is not sated, to give priority to that right in the
manner suggested in Sparrow would be to give the right-holder exclusivity over
any person not having an aboriginal right to participate in the herring spawn
on kelp fishery.
[41]
The Supreme Court then proceeded to discuss what might be
considered to be a compelling and substantial objective pursuant to which the
government could justifiably infringe an aboriginal right, as per the first
branch of the Sparrow test. The Court wrote the following at paragraphs
69, 74 and 75 of Gladstone,
above:
¶ 69 I now turn to the
second significant difference between this case and Sparrow. In
Sparrow, while the Court recognized at p. 1113 that, beyond conservation, there
could be other "compelling and substantial" objectives pursuant to
which the government could act in accordance with the first branch of the
justification test, the Court was not required to delineate what those
objectives might be. Further, in delineating the priority
requirement, and the relationship between aboriginal rights-holders and other
users of the fishery, the only objective considered by the Court was
conservation. This limited focus made sense in Sparrow because the
net-length restriction at issue in that case was argued by the Crown to have
been necessary as a conservation measure (whether it was necessary as such was
not actually decided in that case); in this case, however, while some aspects
of the government's regulatory scheme arguably relate to conservation -- […] --
other aspects of the government's regulatory scheme bear little or no relation
to issues of conservation. […] As such, it is necessary in this case to
consider what, if any, objectives the government may pursue, other than
conservation, which will be sufficient to satisfy the first branch of the
Sparrow justification standard.
…
¶ 74 The recognition of
conservation as a compelling and substantial goal demonstrates this
point. Given the integral role the fishery has played in the
distinctive cultures of many aboriginal peoples, conservation can be said to be
something the pursuit of which can be linked to the recognition of the
existence of such distinctive cultures. Moreover, because conservation is of
such overwhelming importance to Canadian society as a whole, including
aboriginal members of that society, it is a goal the pursuit of which is
consistent with the reconciliation of aboriginal societies with the larger
Canadian society of which they are a part. In this way, conservation
can be said to be a compelling and substantial objective which, provided the
rest of the Sparrow justification standard is met, will justify governmental
infringement of aboriginal rights.
¶ 75 Although by no means
making a definitive statement on this issue, I would suggest that with regards
to the distribution of the fisheries resource after conservation goals have
been met, objectives such as the pursuit of economic and regional fairness, and
the recognition of the historical reliance upon, and participation in, the
fishery by non-aboriginal groups, are the type of objectives which can (at
least in the right circumstances) satisfy this standard. In the right
circumstances, such objectives are in the interest of all Canadians and, more
importantly, the reconciliation of aboriginal societies with the rest of
Canadian society may well depend on their successful attainment.
[42]
With the above decisions in mind, the
respondent submits that, in considering the adequacy of consultation in the
case at bar, this Court should consider that the rights allegedly impacted are
commercial rights with no inherent limitation. Similar to the justification
analysis, where a broader range of objectives constitute permissible
infringement where a commercial right with no inherent limitation is
established, the adequacy of consultation should be viewed differently when a
commercial right with no inherent limitation is asserted. The respondent makes
it quite clear that while various objectives were listed as core objectives for
the CGIAC and CIC, the primary objective was undeniably to address conservation
concerns in the groundfish fisheries.
[43]
Hence, the respondent submits that even if an aboriginal
commercial fishing right is ultimately proven by the applicants, the Pilot Plan
would meet the justification analysis for infringement of said aboriginal
right. Therefore, given that the Pilot Plan would be a justifiable
infringement, it is submitted that any duty to consult in the case at bar is
limited to giving notice and discussing issues that arise, as noted in Haida,
above, at paragraph 43.
[44]
While the applicants maintain that a system of quotas, such
as the one implemented by the respondent that allows for trading among private
commercial interests, reflects a choice of management alternatives and
therefore is not the only approach to conservation of groundfish that could
have been implemented, they do not deny the existence of a valid conservation
objective on the part of the respondent in implementing the Pilot Plan.
[45]
Finally, it is important to repeat the following excerpt
from the Supreme Court decision in Haida, above:
¶ 42 At
all stages, good faith on both sides is required. The common thread on the
Crown's part must be "the intention of substantially addressing
[Aboriginal] concerns" as they are raised (Delgamuukw, supra, at
para. 168), through a meaningful process of consultation. Sharp dealing is not
permitted. However, there is no duty to agree; rather, the commitment is to a
meaningful process of consultation. As for Aboriginal claimants, they must not
frustrate the Crown's reasonable good faith attempts, nor should they take
unreasonable positions to thwart government from making decisions or acting in
cases where, despite meaningful consultation, agreement is not reached: see Halfway
River First Nation v. British Columbia (Ministry of Forests), [1999] 4 C.N.L.R. 1
(B.C.C.A.), at p. 44; Heiltsuk Tribal Council v. British Columbia (Minister
of Sustainable Resource Management) (2003), 19 B.C.L.R. (4th) 107
(B.C.S.C.). Mere hard bargaining, however, will not offend an Aboriginal
people's right to be consulted.
[46]
Having carefully considered the submissions from both
parties in light of the applicable jurisprudence, I am satisfied that any
infringements or adverse effects on the rights of the applicants to fish
commercially resulting from the Pilot Plan would be limited, particularly in
light of the fact that the respondent was pursuing a compelling and substantial
objective of conservation of the resource in question for the benefit of all
Canadians, including the applicants. As such, it is my conclusion that the duty
to consult and accommodate the interests of the applicants would have been
located on the lower end of the spectrum.
2) Were
the steps taken by the Minister sufficient to meet the duty to consult in this
case?
[47]
The applicants first submit that the Minister failed in his
duty to consult as they were not consulted at the beginning of the process
while the Reform Proposal was being developed. The applicants argue that a
meaningful consultation must be timely, and thus must start at an early stage
in the process. The applicants rely on the decision of the British Columbia
Court of Appeal in Halfway River First Nation v. British Columbia (Ministry
of Forests) (1999), 178 D.L.R. (4th) 666, cited by the Supreme
Court of Canada in Mikisew, above, to the effect that:
The Crown’s duty to
consult imposes on it a positive obligation to reasonably ensure that
aboriginal peoples are provided with all necessary information in a timely way
so that they have an opportunity to express their interests and concerns, and
to ensure that their representations are seriously considered and, wherever
possible, demonstrably integrated into the proposed plan of action.
[48]
The applicants further rely on the decision of the British
Columbia Supreme Court in Squamish Indian Band v. British Columbia (Minister
of Sustainable Resource Management), [2004] B.C.J. No. 2143, where Justice
Koenigsberg stated the following:
Thus,
in my view, the duty to consult in this case arises at the earliest decision
making by the government in an approval process leading to the possible
infringement of claimed aboriginal rights. Further, the accommodation which may
be required in order to justify any infringement may include requiring the
consent of the Squamish Nation to some part of the proposed infringement.
Therefore, the consultation process must be full, timely and well documented.
[49]
While the argument on timeliness may be valid, the respondent
is correct in noting that while the applicants only received a formal copy of
the Reform Proposal in June 2005, they were well aware of the general direction
that was being pursued by the Reform Proposal earlier, through the
participation in the CGIAC of one of their representative designated by the
BCAFC, starting in January 2005. In fact, I would also note that, had the
representative designated by the BCAFC, who also happened to be a
representative of the NTC, attended the meetings of the CGIAC in 2004, they
would have been in some way engaged in this process and aware of the direction in
which it was going even earlier.
[50]
The distinction between the applicants’ and the
respondent’s arguments emphasizes the fact that the applicants essentially took
the position, throughout the process, that the only acceptable form of
consultation was a bilateral consultation. The meeting notes from the May 30,
2005 CGIAC meeting for instance, disclose that the NTC representative stated
that comments from the Nuu-chah-nulth First Nations would have to come
through the bilateral consultation process.
[51]
On this question, the respondent directs this Court to the
Supreme Court of Canada’s decision in Taku River Tlingit First Nation v.
British Columbia, [2004] 3 S.C.R. 550, where the Court rejected the notion
that the duty to consult meant that the consultation process must always be
tailored to the First Nations whose rights may be infringed, and thus that
consultation must always be bilateral. The Court noted at paragraph 40 of its
decision in Taku River, above:
¶ 40
The chambers judge was satisfied that any duty to consult was satisfied until
December 1997, because the members of the TRTFN were full participants in the
assessment process (para. 132). I would agree. The Province was not required to
develop special consultation measures to address TRTFN's concerns, outside of
the process provided for by the Environmental Assessment Act, which
specifically set out a scheme that required consultation with affected Aboriginal
peoples.
[52]
Given that the duty to consult in this case is located on
the lower side of the spectrum, and given that the applicants were represented
in the multilateral process through the CGIAC and were thus aware of the
situation as it developed, I am satisfied that there was no need for the
Minister to take any extra steps to consult the applicants while the Reform
Proposal was being developed. While the failure of the NTC representative to
attend the first two CGIAC meetings may have impacted such awareness, the fault
for that cannot rest with the Minister.
[53]
Once the Reform Proposal was submitted to the Minister, DFO
began a process of stakeholder consultations, in which the applicants were
invited to participate, both through the completion of a written questionnaire
to provide comments on the proposal, and through the stakeholder meetings. In
fact, the applicants participated in both processes, providing written comments
on August 15, 2005, and participating in the dialogue session held in Nanaimo on November 2 and 3, 2005.
[54]
Furthermore, it is clear that the applicants were familiar
with the main issue raised by the Reform Proposal, namely the imposition of IQs,
which had been in place in a majority of commercial groundfish fisheries since
at least 1997, and to which they were generally opposed. In fact, a report
prepared by the First Nations Panel on Fisheries entitled “Our place at the
table: First Nations in the B.C. Fisheries” was relied on by the applicants in
their submissions to DFO. As Dr. Hall stated in his reply to the questionnaire
included in the Consultation Guide, the applicants agreed with a recommendation
contained in that report to the effect that a moratorium should be placed on
the further introduction of IQs until First Nations interests have been
addressed.
[55]
While the respondent had not initially intended to conduct
bilateral consultations with the applicants, as DFO believed the multilateral
consultations to be sufficient to address the interests of the applicants, they
nonetheless agreed to pursue some form of bilateral consultations. It is clear
from the series of events outlined at paragraphs 11 to 21 of this decision, that
a series of bilateral meetings did take place between the applicants and the
respondent.
[56]
The applicants’ essential complaint is that consultations
were not completed prior to the Minister releasing his decision and that this
failure resulted from the fact that DFO waited until the very end of the
process to engage with the applicants. Therefore, by the time the consultation
process began, DFO was already pressing up against its self-imposed March 2006
deadline, so that there was insufficient time left to complete the consultation
process.
[57]
There is no question that DFO was working within a rather
tight deadline in an attempt to introduce the new measures prior to the 2006
fishing season. Nonetheless, the applicants submit that they indicated their
interest in pursuing bilateral consultations early in 2005 but that no steps
were taken until the fall of 2005. The applicants thus maintain that this
situation could have been avoided if DFO had engaged in consultation in a
timely manner.
[58]
The respondent for his part argues that, once the bilateral
process got underway, the applicants attempted to frustrate and delay the
consultations, as they refused to engage in discussions of substantive issues
until DFO agreed to their proposed consultation protocol. Furthermore, once the
applicants finally agreed to move forward, they submitted a series of 102
questions which the respondent argues were primarily designed to delay the
process of consultation.
[59]
While I agree with the applicants that DFO could have begun
the bilateral consultation process with First Nations in general, and not just
with the applicants, earlier than November 2005, I also recognize that they
were in the process of organizing multilateral stakeholder consultations and
that they could not do everything at once.
[60]
More importantly, in terms of the specific bilateral
consultations with the applicants, I am not willing to lay all the blame for
the fact that the bilateral consultations failed to achieve meaningful results,
at least as far as the applicants are concerned, on the respondent. It is clear
from the timeline of events that the applicants share a lot of the blame for
delaying the process to the point where there was no time for them to present
their official submissions before the Minister adopted the Pilot Plan. They
cancelled meetings, including a meeting scheduled much earlier in September
2005, and they did not submit their consultation protocol until November 23,
2005, even though they proposed bilateral consultations as early as January
2005. More importantly, they insisted that DFO agree to their protocol, before
they proceeded to discuss the substance of the issues.
[61]
It seems clear from the evidence that the Minister did not
wish to commit to a consultation protocol that might require him to postpone
the adoption of the proposal to the 2007 fishing season because every stages in
this protocol were not completed to the satisfaction of the applicants in time
for the 2006 fishing season. While the applicants argue that the Minister
ultimately agreed to this consultation protocol, and thus created a legitimate
expectation on their part that he would hold off on making a decision until at
least the first five stages of the consultation protocol were completed, I am
not convinced that such is the case. In light of the affidavit of Mr. Kadowaki
and of the letters and emails exchanged by the parties, and in light of the
clear intention of the respondent to implement the Pilot Plan before the 2006
fishing season, I do not believe that the respondent agreed to be bound by this
protocol, such that no decision could be made until the first five stages of the
protocol were completed.
[62]
Moreover, it appears to me that the applicants put the
Minister in a very difficult position, by insisting on the one hand that he
conduct bilateral consultations with them before implementing any reform, and
by refusing on the other hand to move forward with said consultations until he
agreed to proceed according to their protocol. While the stages in the protocol,
by themselves, may not have been particularly controversial, the proposed
timetable was clearly more problematic, given DFO’s intention to adopt the
Reform Proposal in time for the 2006 fishing season. In fact, under target
completion date, the applicants simply wrote: “[a]s required to complete the
consultation process”, which could not have been very reassuring to the Minister.
Essentially, by refusing to participate in the consultation process until DFO
agreed to a consultation protocol, which they must have known would be
problematic, the applicants destroyed any possibility that meaningful
consultations of the type they sought could be accomplished before the beginning
of the 2006 fishing season.
[63]
It should also be mentioned that, as suggested by the
respondent, the applicants have shown a strong philosophical objection to the implementation
of IQs, and thus were not likely to have agreed with such an implementation,
even after extensive consultations.
[64]
To sum up, a representative of the applicants was
designated by the BCAFC to attend meetings of the CGIAC, thus allowing the
applicants to be kept informed, however indirectly, of the work being done by
the CIC on the Reform Proposal. Once DFO was ready to proceed with stakeholder
consultations, the applicants were sent a letter explaining the situation, as
well as a copy of the Reform Proposal and a written questionnaire allowing them
to submit comments to the Minister. The applicants also participated in one of
the stakeholder meetings held in November 2005. Two bilateral meetings were
also held with the applicants in November 2005, at which the Reform Proposal
was discussed. The applicants then submitted to the respondent a proposed consultation
protocol, and refused to discuss substantive issues for the next two and a half
months, insisting that the Minister first agree to this protocol before
proceeding any further. Once the consultation process resumed in February, the
applicants forwarded over one hundred questions to DFO, many of which the
respondent insists were not clearly connected to any aboriginal interest that
would give rise to the duty to consult. Nonetheless, DFO endeavoured to provide
as many answers as possible within a very short timeframe. Meanwhile, a series
of memoranda to the Minister were prepared in respect of the Reform Proposal,
which outlined the opposition from First Nations, including the applicants.
Finally, when the Pilot Plan was adopted, it contained some important changes
meant to address concerns of stakeholders, notably the fact that it was now to
be a three-year pilot project. There was also a specific commitment to First
Nations that additional lingcod and dogfish catch history would be made
available to them as lingcod and dogfish quotas. That measure, according to the
respondent, was meant to address concerns raised by the NTC and other First
Nations regarding quota and non-target species, as well as to address any
additional costs incurred by the applicants as a result of the implementation
of the Pilot Plan. As such, it is clear that a measure was introduced in the
Pilot Plan to accommodate the potential adverse effects of the Reform Proposal
identified by the applicants.
[65]
While it is conceded by the respondent that bilateral consultations
with the applicants had not concluded prior to a decision being made by the
Minister on the Pilot Plan, I agree with the respondent that the applicants
were provided with sufficient opportunities to participate in the process to
satisfy the duty of the Minister to consult in this case, and that some of the
delays that prevented the consultations from concluding prior to the decision
being made were caused by the applicants.
[66]
Given the multilateral consultations that were held by DFO
in which the applicants took part, given the conservation issues at stake,
given the potential impact on groundfish fisheries of the introduction of the
100 per cent monitoring of all catch for the 2006 fishing season without the
implementation of transferable IQs, and given that the plan was introduced as a
three-year pilot only, I am satisfied that the Minister’s decision to proceed
without waiting for bilateral consultations with the applicants to conclude was
justified, and did not constitute a failure to abide by his duty to consult
with the applicants.
3) What, if anything, is the appropriate remedy to be
ordered by this Court?
[67]
The respondent argued in his written submissions that, if
the Court found that the process of consultation did not meet the required
standard by some degree, then the Court should exercise its discretion in
determining the appropriate remedies.
[68]
While I have stated that the consultation process was not
perfect and that more could have been done by both sides to ensure more
meaningful consultations, I agree with the respondent that a declaration that
the Minister breached his constitutional duty to consult pursuant to subsection
35(1) of the Constitution Act, 1982 would not be warranted in this case,
nor would an order in the nature of certiorari pursuant to paragraph
18.1(3)(b) of the Federal Courts Act, setting aside the Decision of the
Minister.
[69]
While the failure to complete the bilateral consultations
may appear, at first glance, to be a violation of the Minister’s duty to
consult, I believe that there are sufficient extenuating circumstances in this
case, including the multilateral consultations that were held, the nature of
the plan in question, the accommodations made by the respondent, and the
behaviour of the applicants, that militate against a declaration that the
Minister breached his constitutional obligation towards the applicants.
[70]
At the risk of repeating myself, I note that the applicants
were fully informed of the Reform Proposal and provided with various
opportunities to share their input on this proposal, some of which they
squandered by insisting that the respondent abide by a particular consultation
protocol, instead of engaging in meaningful discussions on the substance of the
issues. Furthermore, not only were there attempts to accommodate some of the
applicants and other First Nations’ concerns with respect to the allocation of
quotas, but the Pilot Plan is just that: a ‘pilot’ plan. What this means is
that there will undoubtedly be an opportunity for the applicants to continue
providing their input as the plan develops and as we move into the assessment
phase before a final plan can be implemented, as the Crown’s honourable duty to
consult and accommodate remains in effect. In fact, the respondent has stated
that consultations with the applicants are to continue and that the Pilot Plan
can be revised to reflect accommodations that may result from these
consultations.
[71]
I would therefore encourage both parties to seize the
opportunity presented by the remaining two years of the pilot program to engage
in meaningful consultations, keeping in mind the directions provided by the
Supreme Court of Canada in Haida, above, on the importance that consultations
be undertaken in good faith.
[72]
Accordingly, this judicial review application is dismissed
with costs in favour of the respondent.
JUDGMENT
1. The application
is dismissed.
2. Costs in
favour of the respondent.
“Pierre Blais”
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