Date:
20130411
Docket:
T-577-12
Citation:
2013 FC 363
Ottawa, Ontario,
April 11, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
REPRESENTATIVE PROCEEDING
|
|
GRAEME
MALCOLM on his own behalf and on behalf of all commercial halibut licence
holders in British Columbia
|
|
|
|
Applicant
|
|
and
|
|
|
THE
MINISTER OF FISHERIES AND OCEANS as represented by
THE
ATTORNEY GENERAL OF CANADA
and BC WILDLIFE
FEDERATION AND SPORT FISHING INSTITUTE
|
|
|
|
Respondents
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant, and those that he represents, are commercial fishermen. They make
their living fishing halibut off the coast of British Columbia. They seek
judicial review to set aside a decision of the Minister of Fisheries and Oceans
made on February 17, 2012 changing their allocation of the total allowance
catch (TAC), an annual maximum harvest in pounds, for the Pacific halibut
fishery. In that decision, the Minister reduced the applicant’s share of the
TAC from 88% to 85%. This resulted in a corresponding reduction of the
applicant’s individual transferable quota (ITQ), injuriously affecting his
ability to earn a livelihood from the fishery. For the reasons that follow,
this application is dismissed.
Background
[2]
The
Pacific halibut fishery is of substantial importance to commercial and
recreational fishers. There are approximately 435 commercial halibut licences
extant, worked by about 180 active fishermen and licence holders. Many of
those represented by the applicant fish full time, and halibut comprises a
substantial portion of their catch. The applicant is a third-generation
fisherman and has been fishing full time for 11 years. The reduction in ITQ
held by the applicant resulted in fewer pounds of halibut that could be landed
and sold by the applicant and other commercial fisherman.
[3]
Prior
to 1991, the commercial sector operated as a derby-style race to catch halibut
until the season was closed. The number of boats entitled to fish was limited
but there was no limit on the catch. In 1991, this changed to an ITQ system
which allocated a quota to each licence holder, based on their historical
participation and investment in the fishery. This new system eliminated the
race to catch halibut, allowing for longer fishing seasons and a higher quality
catch. The ITQ attached to inactive licences could be transferred to the
active licence holders within the same licence category. ITQs came to have
significant market value in their own right, and are sold or leased between
commercial fishermen. The respondent Minister approves and facilitates the
transfer, sale or lease of ITQs.
[4]
The
ITQ system of resource management has been very successful. The applicant’s
evidence was that ITQs have improved conservation and, as counsel notes:
They have also improved DFO’s
ability to enhance the economically beneficial exploitation of the resource
because fishermen have had less to gain by investing in equipment that harvests
larger amounts of fish in a short period of time and instead the system rewards
cost-effective fishing that maximizes the value of fish landed. Because quota
is transferable, income is maximized by leasing or selling quota to the most
profitable harvesters. ITQs create flexibility, certainty, stability and
equitable access in the fishery because quota can be transferred between
fishermen to suit their particular needs and commercial fishermen, including
First Nations, can invest in quota as a valuable fishing opportunity that will
not be changed from year to year.
[5]
Halibut,
of course, do not respect international boundaries. Their feeding, spawning
and migration patterns cross the international waters boundaries between Canada and the United States. Hence, the division of the halibut fishery as a whole is determined
by the International Pacific Halibut Commission (the Commission) established
under the Canada-U.S. Convention for the Preservation of the Halibut Fishery
of the Northern Pacific Ocean and Bering Sea. Canada is, as is the United States, obliged by this treaty to manage its fishery within the TAC allocated to it
by the Commission.
[6]
Historically,
the recreational sector played a small role in the halibut fishery, but it has
grown substantially since the 1990s. At present, there are approximately
250,000 tidal water licence holders. Within the recreational sector there are
both individual anglers and charter business operators who may fish for halibut
and other species, although it is understood that only a small percentage of
recreational licence holders fish for halibut.
[7]
Historically,
the recreational sector operated outside of the TAC. This meant that
recreational fishers were not constrained by conservation limits. However, as
the sector grew, there came a need to subject it to the catch limitations
within which the commercial sector had long been operating.
[8]
In
2000, the Department of Fisheries and Oceans retained Dr. Edwin Blewett, a
former economist at Fisheries and Oceans, to facilitate consultation to
establish an initial allocation of the TAC between the commercial and
recreational sectors. Dr. Blewett concluded that, assuming their fundamental
interests could be satisfied, both sectors agreed that the “transfer of quota
between sectors would be based on the market system.” Put otherwise, to
increase their share of the TAC and to increase their business, the
recreational fishers would have to purchase quota from existing quota holders,
namely, the commercial fishers.
[9]
The
fundamental interests, as determined by Dr. Blewett, were two-fold: avoiding
in-season closure for the recreational sector and adequate fishing quota to
sustain a viable commercial sector. Dr. Blewett also concluded that the
initial allocations should be set by a third party as the sectors could not reach
an agreement. Indeed, the two parties were far apart. The recreational sector
proposed that it be allocated 20% of the TAC, whereas the commercial sector
thought 5% to be more appropriate.
[10]
The
Minister then sought the advice of Stephen Kelleher, Q.C., a British Columbia
lawyer, as to the initial allocation. In 2002, Kelleher recommended that the
recreational sector receive 9% of the TAC and that the Department develop a
mechanism to facilitate future transfers of quota between the sectors. The recreational
sector opposed any market based mechanism. Kelleher was of the view that if
the recreational sector did not adhere to the conservation limit of 9%, the
Department would have to impose management measures. He recommended:
The options for Fisheries and
Oceans Canada to consider include new management measures such as closing areas
to recreational anglers and reducing daily limits or possession limits,
imposing annual limits and restricting fishing times and areas.
A further possibility would be
the mid-season closure of recreational halibut fishing. That is seen by the
Sport Fishing Advisory Board as the least desirable option. I fully agree.
[11]
On
October 27, 2003, the Minister introduced an allocation framework (the 2003
Framework). The 2003 Framework provided:
(1)
There
would be a 12% “ceiling” on the recreational sector’s portion of the TAC.
This higher allocation was to allow the sector to grow.
(2)
The
allocation would remain in place until both sectors developed an acceptable
adjustment mechanism whereby the recreational sector could acquire additional
quota from the commercial sector (known as a “market based mechanism”).
[12]
In
a parallel news release, the Minister stated that the Framework commitments
would also ensure that there would be no in-season closures of the recreational
fishery.
[13]
For
each year between 2005 and 2011, the recreational sector exceeded the 12%
allocation, taking 18% and 17% of the TAC in 2006 and 2008. In 2010 and 2011,
the sector caught approximately 15% of the TAC. This occurred despite more
restrictive management practices imposed on the recreational sector.
[14]
The
failure of the recreational sector to adhere to its share of the TAC
precipitated twin concerns about conservation and the Department’s
international obligation to manage the fishery within the TAC. These concerns
were compounded by a corresponding dramatic decline in the abundance of Pacific
halibut. Canada’s TAC in 2004 was 13.8 million pounds, but by 2010 the TAC had
been reduced to 7.5 million pounds. The Department closed the recreational
fishery early in 2008, 2010 and 2011 and opened the recreational season late in
2008, 2009 and 2011. The Department also implemented more restrictive catch
limits.
[15]
During
this time, successive Ministers of Fisheries and Oceans, and the Department,
repeatedly affirmed the commitment in the 2003 Framework to develop a market
based mechanism to facilitate growth of the recreational sector’s share of the
TAC. To give one example, in a letter published in the October 2007 issue of Fisherman
Life magazine, the Minister wrote that: “[the Department] is committed to
implementing the halibut allocation framework fully, including the 88:12
allocation and a market-based mechanism to enable the transfer of halibut quota
between the sectors.”
[16]
In
2004 and 2005, market based mechanisms were used as a vehicle to change the
allocation. In 2004 and 2005, the commercial sector paid to lease quota that
was unused from the recreational sector in order to increase its share.
Commercial fishermen bid on 9,000 and 10,000 pound blocks of quota, and the
proceeds were held in a trust account to be used by the recreational sector if,
in the future, it exceeded its 12% share. Then, in 2008, 2009 and 2010, the
recreational sector acquired quota from the commercial sector using the trust
funds.
[17]
In
2007, the sectors reached an agreement whereby the Department would provide
initial seed funding of $25 million to facilitate the transfer of halibut quota
through a third party. The Department rejected this proposal for financial and
legal reasons. In particular, the Department was concerned that it would set a
precedent for other fisheries across the country, as it had not previously
provided funds to reallocate quota between commercial and recreational sectors.
[18]
In
2011, the Department implemented an experimental licence whereby the
recreational sector could lease quota from the commercial harvesters at market
value. Members of the commercial sector supported this market based mechanism
but the recreational sector opposed it and largely boycotted the plan. It did
so on the basis that as the fishery is a common public resource, the
recreational sector should not have to pay to acquire their share of the quota,
and pointed to the fact that the commercial sector did not pay for the ITQ
originally granted in 1991.
[19]
By
2011, the sectors were at an impasse. The Minister directed Randy Kamp, Member
of Parliament (Dewdney-Allouette, B.C.) and Parliamentary Secretary to the
Minister of Fisheries and Oceans, to evaluate the available options. The
mandate given to Mr. Kamp was to determine options which respected
conservation, provided predictable access and established effective transfer
mechanisms between the sectors. Mr. Kamp held a number of consultations with
the commercial and recreational sectors and provided the Minister with his
recommendations.
[20]
The
situation was highly politicized and significant economic interests, both
vested and potential, were at stake. ITQs had significant monetary value, many
in excess of $1 million, which would be diminished if the commercial sector’s
TAC was reduced. Both sectors engaged in letter-writing campaigns, with the
commercial sector supporting the 2003 Framework and the recreational sector
calling for it to be overturned.
Content of the
2003 Framework
[21]
There
is an issue between the parties as to whether the 2003 Framework has two
components or three, specifically, whether the third element, the Department
will avoid in-season closure of the halibut fishery for the recreational
sector, was a part of the commitment. The respondent places some emphasis on
this, contending that because this “essential component” of the 2003 Framework
was breached as early as 2008, and repeatedly thereafter, the applicant could
have no reasonable expectation that the 88% allocation as provided in the 2003
Framework would continue.
[22]
I
find that the in-season closure commitment was not part of the 2003 Framework,
and do so for three reasons. First, the Minister reiterated his commitment to
the Framework up until late 2011. This was despite the fact that the season
was opened late and/or closed early every year between 2008 and 2011. In other
words, the Minister and the Department continued to rely on the 2003 Framework,
notwithstanding the season closures. The argument is, therefore, inconsistent
with the respondent’s repeated commitment to the Framework.
[23]
Second,
apart from the News Release accompanying the 2003 Framework, there is no
documentary evidence of the Minister or the Department describing the 2003
Framework as having three components.
[24]
Third,
a finding that the Minister bound himself by a commitment not to close the
fishery in-season would again, be inconsistent with the Minister’s own legal
position. The Minister maintains that he has an over-arching legal duty to
manage the fishery and to impose conservation limits through in-season closure,
if and when required.
Decision Under Review
[25]
On
February 17, 2012, the Minister decided to allocate 85% of the TAC to the
commercial sector and 15% to the recreational sector, without any compensation
to the commercial sector, and without a market based mechanism to effect the
transfer. The Minister also decided to continue the experimental licence
program, even though it was being boycotted by the recreational sector.
[26]
In
the News Release accompanying the decision, the Minister emphasized his
commitment to “greater long-term certainty in the Pacific halibut fishery for
First Nations, commercial and recreational harvesters, and, most importantly
encouraging jobs and economic growth in British Columbia”. The Minister also
emphasized the importance of “conservation, stewardship and careful harvest of
Pacific halibut”. The Department’s website described the change as a “one-time
permanent correction to the Pacific Halibut allocation”.
[27]
Three
observations arise from the News Release, one relating to the Minister’s
mandate, the second to the general legal principles governing fisheries policy,
and the third with respect to the economic benefit arising from the allocation.
[28]
With
respect to the mandate, the applicant observes that the Minister, through the
words “most importantly” accorded greater priority to jobs and economic growth
than he did to long-term certainty of the fishery. This, it is said by the
applicant, is evidence that the Minister misunderstood his mandate. The second
observation relates to the statement that this was a “one-time correction” to
the 2003 Framework. This statement is, yet again, inconsistent with the
Minister’s legal position that he is not bound by his own prior policy
choices. Third, the applicant notes that while the respondent advised the
Court during pre-trial proceedings of its intent to file expert evidence in
support of the economic benefits of the decision, no such evidence was filed,
and the Court should infer that no such evidence existed. I will return to
these points later.
[29]
In
making this decision, the Minister received advice from the Deputy Minister.
This advice came in the form of three memoranda all delivered to the Minister
in an eight day period prior to the decision. These memoranda, and the advice
they contain, are central to the applicant’s argument and require careful
dissection.
[30]
The
February 6, 2012 memorandum from the Deputy Minister to the Minister provided
four options:
The department is presenting four
options regarding allocation for your consideration. An option for licensing is
included that would formally split the angler and commercial recreational (e.g.
charter operator) segments of the recreational sector. All options include the
continuation of the experimental licence program as well as a process to engage
the recreational sector to address key management measures related to their
fishery.
The four options are: an immediate
adjustment to 85:15 followed by the Process, an 85:15 sharing arrangement that
would be implemented only once the Process has been successfully completed, the
creation of a new commercial recreational licence category and maintaining the
current 88:12 arrangement plus the announcement of the Process.
[31]
The
Department recommended Option 4: Maintaining the Current Allocation. The pros
and cons of Option 4 were also identified:
Pros:
•
Aligns
with current government strategic objectives and priorities regarding stability
and predictability
•
Sends
strong and consistent message to stakeholders and observers regarding how DFO
is moving to modernize fisheries management
•
Provides
for continued use and possible further development of the experimental licence
into a sustainable market based mechanism.
•
……………………………………………………………….
•
Pacific
groundfish commercial sector would continue to demonstrate and support changes
set out in Fisheries Modernization.
Cons:
•
A
strong negative reaction could be expected from the recreational sector as it
does not address their expectations that change will occur.
•
Due
to the lower TAC, DFO and the recreational advisors may be pushed to consider
significant in-season management measures including a potentially shorter
season
•
With
a perception that there is little to gain, there is a risk that the
recreational sector may choose not to accept the incentives and may continue to
boycott the experimental licence, the Process and choose instead to continue or
accelerate political activities
[32]
The
Minister did not accept the recommendation. No reasons were given.
[33]
Two
days later, on February 8, 2012, a revised memorandum was sent to the
Minister. The Summary Box on the memorandum read:
•
Further
to your direction to adjust the Pacific halibut quota allocation to 85:15, an
implementation approach has been developed.
•
This
memorandum outlines key considerations with respect to this approach. Once
approved, the department will undertake the necessary actions to implement it.
[34]
The
memorandum continues:
•
In
implementing this decision, departmental officials propose the following
approach which is structured around three elements:
1. An immediate, but
interim, adjustment to 85:15 for the 2012 fishing season. Maintaining this
adjustment beyond 2012 is conditional on the recreational sector successfully
addressing key issues in the recreational fishery (noted below).
[35]
The
key issues in the recreational sector were elaborated upon:
•
An
agreement on an effective quota transfer mechanism that does not require ongoing
government intervention to allow sectors to adjust to meet their needs in the
future [by necessity, this may involve involvement with the commercial sector]
o
The
existing experimental licensing program will continue as an interim measure
until a permanent solutions can be achieved
•
The
implementation of improved catch monitoring measures within the recreational
fishery;
•
The
development of viable management measures that could be used to keep the
recreational fishery within its allocation while permitting optimum flexibility
and season length; and,
•
Rules
that would determine future management measures if the commercial segment of
the recreational sector (e.g. charter operators) continues to grow in relation
to other users of the recreational sector
[36]
Again,
the Minister rejected the recommendation.
[37]
On
February 14, 2012 a third memorandum was sent to the Minister. The Department
maintained both its advice and its recommendation that the status quo be
maintained. Four options were reduced to two, maintain the status quo or to
adjust to 85:15. The pros and cons for adjusting to 85:15 again provided:
Pros:
•
The
recreational sector will likely view the increase generally positively and as
recognition of the importance of the recreational sector
•
An
increase will enable the season to be managed with possibly less restrictive
conditions.
Cons:
•
A
change in the allocation would be perceived by commercial fishermen in B.C. and
across the country as undermining the Minister’s core message of stability and
predictability in the fisheries modernization agenda
•
Many
stakeholders and observers will, despite any statement claiming that this is a
“one-time” or “final” adjustment, view this as another example where political
pressure can achieve desired outcomes, which could increase lobbying pressure
on the department and Minister in this fishery in the future and in other
fisheries across the country
•
A
transfer that would take effect immediately could cause difficulties for some
commercial harvesters who have already entered into sale agreements for the
upcoming season
•
First
Nations have stated orally and in letters in recent years that consultations
held to date, including the most recent meeting on February 10, 2012, between
the Parliamentary Secretary and the 5 plaintiffs in the Ahousaht case, have
been inadequate if there is to be a change in the allocation
•
No
incentive to improve the monitoring and management measures in the recreational
fishery
[38]
The
Department dropped its recommendation that the adjustment be conditional on
compliance by the recreational sector with conservation issues.
[39]
The
Minister signed and stated that he did not agree with the recommendation and
wrote: “Please proceed with recommendation # 2”.
[40]
The
applicant correctly notes that the Department never advanced a recommendation
#2; rather it was an option. The Department’s advice was consistent
throughout, namely adherence to the 2003 Framework, identification of a market
based mechanism, and a solution to conservation problems in the recreational sector.
The Department, in recommending interim re-allocation contingent upon
compliance by the recreational sector with conservation issues, was concerned
that, if the adjustment was permanent, it could lose leverage over the sector.
The briefing note is explicit on this point, noting as a negative
consideration, that there would be “no incentive to improve the monitoring and
management measures in the recreational sector.”
[41]
The
applicant emphasizes the memoranda. He notes that the Minister’s decision is
against advice of Departmental officials and that the advantages in favour of
maintaining the status quo far outweigh the disadvantages. The
rationale for increasing the recreational quota is ice-thin. The Department
notes that the reallocation will be “viewed positively” by the recreational
sector. This comes as no surprise. Secondly, the conservation pressures will
disparate, in the short-term, as the over-fishing by the recreational sector
will now be sheltered or protected by the greater quota. As noted, the
Department’s ability to affect behavioural change in the recreational sector is
correspondingly diminished. Most importantly, the applicant emphasizes the
Department’s continued concern about increasing the TAC of the recreational
sector in the face of its non-compliance.
[42]
The
applicant notes that the Deputy Minister specifically identified the importance
of developing a market based mechanism to allow sectors to adjust according to
their needs. The importance of this was also identified by Mr. Kamp in his
advice to the Minister. A November 15, 2011 document from Mr. Kamp entitled
“Pacific Halibut Allocation Options: Draft for discussion purpose only” notes:
All of the options listed below
could/should be combined with any or all of the transfer mechanisms outlined in
the next section.
[43]
No
“next section” was produced by the respondent during the course of the
proceedings.
[44]
On
January 10, 2012, Mr. Kamp provided a further memorandum, outlining the pros
and cons of three options. “Stability, predictability, transparency and trust”
would be ensured by maintaining the 2003 Framework. It would also “send a
message that political lobbying is ineffective”, and that if an adjustment is
made to 85:15, legal action from commercial interests could be expected.
[45]
The
applicant points out that the Department itself recognized that the change in
allocation was contrary to the commitment made in the 2003 Framework, and
militated the stated objective of predictability in the fishing season. The
decision of the Minister to change the allocation in light of this advice is
evidence of the unreasonableness of the decision.
[46]
I
will return to these memoranda later, but before doing so, address the standard
of review.
Analysis
The
Scope of Review
[47]
The applicant and the respondent are ad idem that the
decision is justiciable and that the standard of review is that of
reasonableness. Where they differ is on the outcome when it is applied to the
decision. For this reason, it is essential to understand what is meant by
“reasonableness” in the context of a decision of this nature.
[48]
Section
4 of the Department of Fisheries and Oceans Act, RSC, 1985, c F-15 and the Fisheries Act, RSC, 1985, c F-14, describes the mandate of the Minister:
|
4. (1) The powers,
duties and functions of the Minister extend to and include all matters over
which Parliament has jurisdiction, not by law assigned to any other
department, board or agency of the Government of Canada, relating to
(a)
sea coast and inland fisheries;
(b)
fishing and recreational harbours;
(c)
hydrography and marine sciences; and
(d)
the coordination of the policies and programs of the Government of Canada
respecting oceans.
|
4. (1) Les pouvoirs
et fonctions du ministre s’étendent d’une façon générale à tous les domaines de
compétence du Parlement non attribués de droit à d’autres ministères ou
organismes fédéraux et liés :
a) à
la pêche côtière et à la pêche dans les eaux internes;
b) aux
ports de pêche et de plaisance;
c) à
l’hydrographie et aux sciences de la mer;
d) à
la coordination des plans et programmes du gouvernement fédéral touchant aux
océans.
|
[49]
Through
section 4, Parliament conferred on the Minister the “widest possible freedom”
to exercise his discretion in managing the fisheries: Carpenter Fishing Corp
v Canada, [1998] 2 FC 548, (FCA) at para 37. In this regard, fisheries
policy decisions, affecting as they do the allocation of the fishery as
a whole between competing sectors, are of a general, legislative nature. In
the ordinary course, they are based on the balancing of competing economic,
environmental and policy concerns, aboriginal interests, both constitutional
and otherwise, and treaty obligations. The paramount consideration in this
balancing is the long-term sustainability of the fisheries.
[50]
The
allocation decision in question has some of these characteristics. It sets the
overall allocation policy affecting the division of a public resource between
two sectors of the fishery, involving hundreds of licence holders. This is in
contrast with an administrative decision to allocate quota to an individual
licence holder.
[51]
The
standard of review criteria expressed in Maple
Lodge Farms v Government of Canada, [1982]
2 SCR 2 and Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 are not mutually exclusive or discreet; rather, they fall
under the chapeau or rubric of the reasonableness test, which is to be applied
or varied depending on where the decision falls on the spectrum from purely
legislative to purely administrative. Ministerial decisions may fall
anywhere along a spectrum from a purely administrative decision affecting a
single individual, to a policy issue, to a decision which is entirely political
and not justiciable. As the Chief Justice of Canada observed in Catalyst
Paper Corp. v North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, paras
23-24:
As discussed above, Dunsmuir described
reasonableness as a flexible deferential standard that varies with the context
and the nature of the impugned administrative act. In doing so, Dunsmuir
expressly stated that the approaches to review developed in particular contexts
in previous cases continue to be relevant (Dunsmuir, at paras. 54 and
57). Here the context is the adoption of municipal bylaws. The
cases dealing with review of such bylaws relied on by the trial judge and
discussed above continue to be relevant and applicable. To put it
succinctly, they point the way to what is reasonable in the particular context
of bylaws passed by democratically elected municipal councils.
It is thus clear that courts
reviewing bylaws for reasonableness must approach the task against the backdrop
of the wide variety of factors that elected municipal councillors may
legitimately consider in enacting bylaws. The applicable test is this:
only if the bylaw is one no reasonable body informed by these factors could
have taken will the bylaw be set aside. The fact that wide deference is
owed to municipal councils does not mean that they have carte blanche.
[52]
These
principles apply, by analogy, to this case. There are a number of contextual
features all of which support a deferential standard of review. These include
the nature of the decision and decision maker, the legislative and factual
context and the nature and scope of the relevant considerations.
[53]
The
deferential approach to decisions of this nature is not to say that the
decision is above any level of review. The rule of law requires that all
exercises of public authority find their source in law. Courts must ensure
that governments act within the confines of statutes, the civil and common law,
and the Constitution: Dunsmuir at para 28. There is always a role,
though it may be limited, for the courts. For example, in Public Mobile v
Canada (Attorney General), 2011 FCA 194, the Federal Court of Appeal
reviewed a decision of the Governor in Council under
the Telecommunications Act, SC 1993, c 38 on a standard of reasonableness.
[54]
Although
decided prior to Dunsmuir, the scope for review of sectoral allocations
in the fishery was described in Carpenter Fishing Corp v Canada, [1998]
2 FC 548 (FCA), another case involving the Pacific halibut fishery:
The imposition of a quota policy
(as opposed to the granting of a specific licence) is a discretionary decision
in the nature of policy or legislative action. … These discretionary policy
guidelines are not subject to judicial review, save according to the three
exceptions set out in Maple Lodge Farms: bad faith, non-conformity with
the principles of natural justice where the application is required by statute
and reliance placed upon considerations that are irrelevant or extraneous to
the statutory purpose.
[…]
It is only when actions of the
Ministry otherwise authorized by the Fisheries Act are clearly beyond
the broad purposes permitted under the Act that courts should intervene.
[55]
This
approach to the judicial review of fisheries management decisions has been
consistently affirmed by the Federal Court of Appeal: Mainville v Canada (Attorney Genera), 2009 FCA 196 and Canada (Attorney General) v Arsenault,
2009 FCA 300. In Mainville the Federal Court of Appeal confirmed that a
court cannot interfere with the Minister’s fishing plan except when the
Minister acted arbitrarily, in bad faith, or pursuant to irrelevant
considerations.
[56]
These
decisions are also consistent with a standard of review of reasonableness. As
a matter of logic, breach of any of the criteria in Maple Lodge Farms
would render a decision, per se, unreasonable. A decision rendered in
bad faith, or on the basis of irrelevant considerations, is by its terms,
unreasonable.
[57]
The
Court of Appeal has, again in the context of fisheries policy, assessed
ministerial decisions involving competing interests, through the lens of
reasonableness. In Doug Kimoto v Canada (Attorney General), 2011 FCA
291, the Court said, a paragraph 13:
The Minister is charged with the
formidable task of managing, developing and conserving the fisheries, which
belong to the Canadian people as a whole. Decisions with respect to
conservation and management issues must necessarily balance the interests of
competing stakeholders. In this case, the Minister informed herself of the
available options (of which there were many) by conducting extensive
consultations with the various stakeholders. Ultimately, she chose to expend
the U.S. Fund, for the most part, on a voluntary and permanent licence
retirement program. This was a highly discretionary decision guided by fact and
policy. In our view, the basis of the Minister’s decision was sufficiently
transparent and intelligible, and the decision itself fell within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (see Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), 2008 SCC 9,
[2008] 1 S.C.R. 190, para. 47).
[58]
In
sum, reasonableness is a flexible standard, to be applied contextually.
Reasonableness is informed by prior jurisprudence governing the scope of review
for decision of this nature.
There Is No Reviewable Error
[59]
The
applicant contends that the Dunsmuir criteria of justification,
transparency and intelligibility have not been satisfied. The Minister
provided minimal reasons for his decision; the decision prioritizes growth of
the recreational industry, despite the potential for negative outcomes for the
commercial sector and conservation, and the decision was inconsistent with the
prior assurances given to the commercial fishermen. The Minister’s decision is
contrary to both the considered advice of his Department, and the advice
received from his Parliamentary Secretary. The Minister and his Department
repeatedly affirmed that there would be no change to the allocation without a
market based process.
[60]
Imbedded
in the reasonableness standard, when applied in their context, is a recognition
that the Minister has the widest discretion to make policy choices. Policy
decisions are not necessarily transparent. The applicant effectively argues
that there is much that can be said about the lack of justification in the
decision, including the lack of consistency with long standing and recently
re-affirmed commitments, and the absence of any evidence in support of the
claim that it will support economic growth. Ultimately, however, having regard
to its context, the decision is one within the range of possible decisions for
the Minister to make.
[61]
As
noted, the Minister made reference to economic growth and jobs as the most
important factor. However, the reasons for the decision, when read as a whole,
demonstrate that the Minster emphasized three factors in particular: long-term
certainty, economic growth and conservation. All of these are appropriate
considerations. When viewed in context of the consultations, the objective was
to provide stability for the industry. In-season closures were very
detrimental to the sports-fishery. The applicant parries this, noting that the
arbitrary reduction in the commercial sector’s share introduced great
uncertainty into that industry, which is by far the larger industry.
[62]
There
is no evidence that the decision was made in bad faith or pursuant to an
irrelevant purpose. The Minister may have regard to a number of objectives for
Fisheries Act decisions, including, “to conserve, protect, harvest the
reserve or simply to carry out social, cultural or economic goals and
policies”: Gulf Trollers Assn v Canada (Minister of Fisheries and Oceans),
[1987] 2 FC 93 (FCA) at p 106.
[63]
There
is no question that the Minister departed from a long standing commitment to
maintain the 2003 Framework, upon which the applicant and those he represents
had, in good faith, built their individual businesses and made their investment
decisions. The remedies for this change in position are not judicial. In
conclusion, there is nothing preventing the Minister from favouring one group
of fishermen over another: Carpenter at para 39.
[64]
The
case law is clear that the Minister cannot be bound by his past policy
decisions. In Arsenault, the Federal Court of Appeal concluded that the
Minister may make changes to fisheries policy at any time. Similar to
management plans under consideration in Arsenault, the 2003 Framework
was an announcement explaining the parameters that the Minister intended to
apply in the exercise of his responsibility to manage the fishery. The 2003
Framework did not bind the Minister. Subsequent assurances from the Minister
also could not bind him.
[65]
In
its memoranda to the Minister, the Department cautioned that changing the
allocation “would be perceived by commercial fishermen in B.C. and across the
country as undermining the Minister’s core message of stability and
predictability”.
[66]
This
Court cannot re-weight the importance of this factor and find that the Minister
should have found it determinative; to do so would overstep the line between
the judicial and political spheres. The Minister is entitled to make policy
decisions of this nature at his discretion, subject only to the Maple Lodge
Farms criteria..
[67]
The
Department also noted that there could be “difficulties for some commercial
harvesters who have already entered into sale agreements for the upcoming
season.” The decision may have immediate and long term negative economic
implications for the applicant, but the fact that the decision of the Minister
may have negative financial implication for one section over another does not
make the decision unreasonable per se.
[68]
The
applicant has presented ample evidence to highlight this point. Commercial
fishermen depend on the stability of the industry in order to make informed
investment and business decisions. Many have incurred substantial debt, confident
that they will have access to a steady allocation of the TAC. Without a doubt,
reducing their portion of the TAC without a market based method of compensation
will negatively impact the livelihood of many commercial fishermen. That said,
it is for the Minister to decide how to balance the interests of the commercial
and recreational fisheries.
[69]
The
applicant also advances concerns about the impact of this decision on
conservation. The recreational industry has consistently exceeded its allocation
of the TAC, despite the Department’s management measures. Unlike the
commercial sector, which is much smaller in size and subject to strict
monitoring and regulation, the recreational sector is difficult to monitor and
control. There are many thousands of recreational fishermen, from casual
anglers to sophisticated tourist operations. There has been no close scrutiny
of these many diverse individuals and businesses.
[70]
The
applicant emphasizes that, given these facts, the decision to encourage growth in
the recreational sector undermines, and is inconsistent with, the Department’s
legal commitment to conservation. He notes that there is little reason to
believe the recreational sector will more readily stay within a 15% allocation
now, when it has not complied in the past. In 2006, the recreational sector
caught 18% of the TAC. In 2008, it caught 17%.
[71]
The
applicant also emphasises that these concerns were also shared by Mr. Kelleher
and by the Department. The Department wanted to delay the shift in allocation
until mechanisms could be found to hold the recreational sector to its share of
the TAC. In each memorandum, the Deputy Minister identifies the recreational
sector’s over-fishing as a consideration. A change in allocation would be seen
as an example of “where political pressure can achieve desired outcomes and
could increase lobbying pressure on the Department.” Moreover, the decision
would provide “no incentive to improve the monitoring and management in the
recreational sector.”
[72]
The
applicant points out that in assessing the reasonableness of the decision,
there is not much, if anything, that can be said in support of the decision.
On the contrary, there are a great number of considerations that point in the
opposite direction. There is no evidence of greater economic benefit and no
evidence of increased conservation. Moreover, aboriginal and treaty interests
are not at play, as what is at stake is the division of a share between two
competing groups.
[73]
The
role of the Court in the context of decisions of this nature is not to re-weigh
the factors and come to its own conclusion. Provided the decision was one that
a minister conceivably could make, deference requires that it be respected.
[74]
I
see no basis to interfere. The commercial and recreational sectors had been at
odds for more than a decade. Inevitably, the gains of one sector would come at
the expense of the other. Such policy decisions are the Minister’s to make.
The Minister is not bound by the advice from the Department and his decision
not to follow the considered and repeated recommendations of the Department is
not a reviewable error.
[75]
In
concluding, it should be noted that the Minister’s discretion to manage the
fishery is not unbridled. It is subject to the over-arching responsibility to
preserve the resource. The Minister is obliged to ensure that Canada remains within the TAC and to take effective enforcement measures to ensure that
limits are respected. In this regard, from the perspective of the halibut
fishery, as a resource and the Minister’s legal obligations to preserve the
fishery, it is irrelevant who catches the fish; what is important is that the
TAC is respected.
Legitimate Expectations Do Not
Apply
[76]
The
applicant seeks a declaration that the Minister violated legitimate
expectations that a market based process would be followed in adjusting the
allocation of the TAC.
[77]
The
test for legitimate expectations is whether the Minister made “clear,
unambiguous and unqualified” representations regarding what process would be
followed: Canada (Attorney General) v Mavi, 2011 SCC 30 at para
68. Additionally, the doctrine of legitimate expectations can only pertain to
the process that the Minister would follow, not the outcome of the decision: Mount Sinai Hospital Center v Quebec (Minister of Health and Social Services),
2001 SCC 41 at para 35.
[78]
In
this case, the first criteria was met. For close to a decade, the Minister and
senior officials in the Department in Ottawa and Vancouver confirmed the 2003
commitment to market based transfers between the sectors. A year before the
decision in question, on February 15, 2011, the Minister confirmed in
unqualified and unambiguous terms that changes to the allocation would only
come through a market based mechanism.
[79]
However,
any expectations about process would relate to the consultations leading up to
the decision. The applicant has not expressed any dissatisfaction with that
process. Indeed, the record indicates that the consultations were
comprehensive. Here, the applicant seeks a certain outcome. The phrase
“market based process” does not refer to the process by which the decision is
reached. Rather, it relates to a specific outcome; ultimately compensation for
the commercial sector for any increases in the recreational sector’s share.
[80]
Moreover,
legitimate expectations cannot conflict with the Minister’s statutory duty: CUPE
v Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para 131.
Requiring the Minister to impose a market based adjustment mechanism would
fetter his discretion, contrary to the broad authority conferred on him by
Parliament.
[81]
Therefore,
the doctrine of legitimate expectations has no application to this decision.
Promissory Estoppel Does Not
Apply
[82]
There
is no basis upon which public law promissory estoppel can be invoked.
[83]
The
applicant must show that the Minister has, by words
or conduct, made a promise or assurance which was intended to affect their
legal relationship and to be acted on. The applicant must also establish that
he acted in reliance on that representation: Maracle v Travellers Indemnity Co of Canada, [1991] 2 SCR 50 at para 13.
[84]
I
accept that commercial fishermen relied on the Minister’s assurances. There is
ample evidence in the record, in the form of affidavits from other commercial
fishermen, that the Minister knew that fishermen would rely on the 2003
Framework and subsequent assurances. Commitment to the 2003 Framework was
repeated by the Assistant Deputy Minister, the Deputy Minister and the
Minister. The evidence is also uncontradicted that the commercial sector, in
reliance on these commitments, made significant investment decisions, including
the acquisition of quota, fishing equipment and vessels, with the expected
costs in the hundreds of thousands of dollars. The Minister repeated his
commitment to maintain the ratio and to market based mechanisms as late as 2011
and repeated it during the consultations. The Minister has long sought to
promote industry stability.
[85]
Despite
this, Mount Sinai Hospital provides that promissory estoppel
cannot prevent a minister from exercising a broad statutory mandate to act in
the public interest, as the Minister defines it. At paragraph 47, the Supreme
Court stated that, “The legislation is paramount.
Circumstances that might otherwise create an estoppel may have to yield to an
overriding public interest expressed in the legislative text.”
[86]
The
applicant argues that the statute does not compel the Minister to adjust the
allocation and that no conservation objective is served, indeed, resource
conservations may be undermined. The applicant does not dispute that were the
exercise of the Minister’s discretion rooted in this objective, such as it is
when the fishery is closed in-season, there could be no objection. Here,
however, the Minister has simply decided to prefer the interests of one group
of fishermen over another.
[87]
The
Minister’s discretion cannot be so easily compartmentalized. Subject to the Maple
Lodge Farms reasonableness criteria, the Minister has discretion to change
course on policy. The Minister decided to increase the recreational sector’s
share without compensating the commercial sector. Becoming bound to any one
policy choice would be in violation of his duty.
[88]
In
announcing the change in share on its website, the Department stated that this
was a “one-time permanent correction” to the allocation. This statement is
inconsistent with the Minister’s legal position, and indeed inconsistent with a
long line of cases relied upon by the Minister. Those cases confirm that
subject to the overarching duty to the conservation of a public resource, the
Minister remains free to change the allocation. As noted, his mandate requires
that. It is inappropriate for him to represent otherwise, particularly where it
conflicts with his position before the Court.
[89]
In
sum, there is no basis for this Court to interfere with the Minister’s
decision.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. Submissions on costs may be made within twenty days of the date of
this decision.
"Donald J.
Rennie"
Email this Content