Date:
20111019
Docket:
A-85-11
Citation:
2011 FCA 291
CORAM: EVANS
J.A.
LAYDEN-STEVENSON
J.A.
STRATAS
J.A.
BETWEEN:
DOUG KIMOTO, VIC AMOS and
WEST COAST TROLLERS (AREA G) ASSOCIATION
on behalf of all AREA G TROLL LICENCE
HOLDERS
Appellants
and
THE ATTORNEY GENERAL OF CANADA,
GULF TROLLERS ASSOCIATION (AREA H)
and AREA F TROLL ASSOCIATION
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on October
19, 2011)
LAYDEN-STEVENSON
J.A.
[1]
This
is an appeal from the order of Justice Harrington of the Federal Court (the
judge) dismissing an application for judicial review of a decision of the
Minister of Fisheries and Oceans (the Minister). The judge’s reasons are
published as 2011 FC 89.
[2]
On
appeal, the appellants and the respondent Attorney General provided written
submissions and appeared at the hearing. The other respondents neither filed
submissions nor appeared at the hearing. Notwithstanding the detailed arguments
of the appellants’ counsel, Mr. Harvey, for the reasons that follow, we are of
the view that the appeal must be dismissed.
[3]
The
background underlying the application for judicial review is described in the
reasons of the judge. Briefly, in 1985, recognizing the need for conservation
and rational management of the Pacific salmon fishery, Canada and the United
States
entered into the Pacific Salmon Treaty (the Treaty). Chapter 3 of the Treaty
addresses Chinook salmon. Amendments to Chapter 3, effective January 1, 2009,
among other things, require Canada to reduce its catch of Chinook salmon from
the West Coast of Vancouver Island and the United States to reduce
its Alaskan catch. The amendments also stipulate that the United States would
provide $30 million to Canada (the U.S. Fund) for a fishery mitigation
program to reduce effort in its commercial salmon troll fishery. In light of
this and other litigation, the Minister has agreed not to spend the U.S. Fund
absent a court order.
[4]
The
Canadian Pacific salmon troll fishery comprises three areas: individual stock
based management (ISBM) fisheries in the Strait of Georgia (Area H); aggregate
abundance based management (AABM) fisheries in northern British
Columbia
(Area F) and AABM fisheries on the West Coast of Vancouver Island (Area G). The
Treaty reduction applies only to Canada’s Area G. The Minister
chose to achieve the reduction by lowering the commercial allotment, leaving
the sport and First Nations’ quotas intact.
[5]
After
the amendments became effective, the Department of Fisheries and Oceans (DFO)
consulted with domestic stakeholders regarding the development of a mitigation
program and the use of the U.S. Fund. An Integrated Advisory Group was created
to provide a number of options to DFO. At the conclusion of the Advisory Group
process, the results of the consultations and options were considered by DFO
and a report was presented to the Minister. On December 9, 2009, the Minister
decided on three key elements of the mitigation program to reduce effort in the
commercial salmon troll fishery. Specifically, the program includes:
·
a
voluntary permanent licence retirement program for troll licence holders in
Areas F, G and H;
·
a
$500,000 program to support economic development in Vancouver Island West Coast
communities (Area G); and
·
$1
million to support the development of a new salmon allocation framework.
[6]
The
appellants sought judicial review of the Minister’s decision, taking issue only
with the licence retirement aspect applicable to each of the fishing areas.
Basically, the appellants took the position that the U.S. Fund should be paid
to them and, to this end, they also instituted a class action in the Federal
Court. The action is stayed pending final determination of the application for
judicial review. As stated earlier, the judge dismissed the application.
[7]
The
judge reviewed the Minister’s decision on a standard of reasonableness. We
agree that reasonableness is the applicable standard of review.
[8]
The
appellants submit that the Minister’s decision does not comply with the Treaty
and the Financial Administration Act, R.S.C. 1985, c. F-11 (the FAA) and
is therefore ultra vires. We disagree. Section 26 of the FAA prohibits
disbursements from the Consolidated Revenue Fund without the authority of
Parliament. Section 21, in conjunction with the definition of “public money” in
section 2 of the FAA, permits funds collected under a treaty to be paid out for
a purpose specified in or pursuant to that treaty. Accordingly, if the proposed
program is related to the purpose specified in the Treaty, this Court cannot
interfere with the Minister’s decision, unless the decision was unreasonable.
[9]
The
appellants’ position is founded on the proposition that the U.S. Fund was
provided in exchange for the reduction in Area G. The fact that the reduction
adversely impacted Area G is not disputed. However, it does not follow that the
Treaty must be interpreted to remedy that impact. Indeed, the plain language of
the Treaty does not support the appellants’ interpretation. Article 4 of the
Treaty states:
4. The Parties agree that $30
million (U.S.) of the funding to be provided by the United States identified in paragraph 3, above, is to
be made available to Canada to assist in the
implementation of this Chapter. Specifically, $15 million (U.S.) is to be provided in each
of two U.S. fiscal years from 2009 to
2011, inclusive, or sooner (for a total of $30 million U.S.), with the following understandings:
(a)
the bulk
of this funding would be used by Canada
for a fishery mitigation program designed, among other purposes, to reduce
effort in its commercial salmon troll fishery; and
(b)
Canada will inform the Commission as
to how this funding was utilized in support of the mitigation program within
two years of
receiving such funding (my
emphasis).
[10]
On
its face, the language of Article 4 permits the use of the U.S. Fund for a
fishery-wide mitigation program. The money is made available for the purpose of
implementing Chapter 3 as a whole. The reduction in Area G is but one component
of the fisheries management and financial provisions covered by Chapter 3.
Significantly, Chapter 3 does not state anywhere that the U.S. Fund is tied to
the harvest reduction in Area G, or to the Area G fishers. To the contrary, the
Treaty permits Canada to use the bulk of the U.S. Fund for the
purpose of reduction of effort in the commercial salmon troll fishery. That
fishery includes three areas: F, G and H.
[11]
Although
the appellants strenuously argue that Area H does not fall within Chapter 3 and
that it sustained no impact, Article 13(4) of Chapter 3 clearly contemplates
the inclusion of ISBM fisheries; Area H is an ISBM fishery. Further, the
evidence before the Minister specifically indicates that Area H sustained
impact or could sustain impact over the tenure life of the Treaty. (see appeal
book, volume 4, at pp. 1254-1264). This evidence supports the reasonableness of
the Minister’s decision to allocate portions of the U.S. Fund to fishers other
than those in Area G. Because Chinook may again be caught in Area H, it was reasonable
for the Minister to take a proactive approach to her contingent conservation
obligations.
[12]
Even
if the Treaty permits the U.S. Fund to be used for a fishery-wide mitigation
program, the appellants claim they have a property right in the fish that will
now remain uncaught. This, they say, renders the program an expropriation which
must be explicitly authorized by the FAA. In support of their argument, they
rely on Saulnier v. Royal Bank of Canada, 2008 SCC 58, [2008] 3 S.C.R.
166 (Saulnier). In our view, this argument is ill-founded. The
appellants’ proposition is the antithesis of fisheries being the common property
of all, a principle deeply ingrained in Canadian law. Moreover, Saulnier
does not advance the appellants’ argument. Saulnier addressed the
question whether a fishing licence could fall within the statutory definition
of “property” in the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3
and the Nova Scotia Personal Property Security Act, S.N.S. 1995-96, c.
13. In holding that it could, Justice Binnie, at paragraph 48, specifically
cautioned that the ruling did not expand the nature of a licence holder’s interest
as defined in the Fisheries Act, R.S.C. 1985, c. F-14 beyond the
particular statutory context before the court. Consequently, this prong of the
appellants’ argument must fail.
[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,
[2008] 1 S.C.R. 190, para. 47).
[14]
The
appellants also contend that the program does not fall within the Treaty
because licence reduction will not reduce “fishing effort.” This prong of their
argument also fails on the basis of the deferential standard of review we must
apply. Essentially, the appellants say that it was incorrect for the Minister
to conclude that reducing fishing licences would reduce fishing effort by
limiting the number of boats fishing. In Comeau’s Sea Foods Ltd. v. Canada (Minister
of Fisheries and Oceans), [1997] 1 S.C.R. 12, at paragraph 37, the Supreme
Court stated:
Licensing is a tool in the
arsenal of powers available to the Minister under the Fisheries Act to
manage fisheries. It restricts the entry into the commercial fishery, it limits
the numbers of fishermen, vessels, gear and other aspects of commercial
fishery.
[15]
It
was reasonably open to the Minister to conclude, in the circumstances, that a
licence reduction component would reduce the fishing effort. The appellants
have not demonstrated otherwise.
[16]
With
respect to the argument that the Treaty amounts to an impermissible sale of
fishery resources, the judge properly distinguished this Court’s decision in
Larocque v. Canada (Minister of
Fisheries and Oceans), 2006 FCA 237, 270 D.L.R. (4th) 552 (Larocque).
The Larocque reasoning does not apply to the facts of this case. This
program is directed to conservation and does not involve third-party service
providers. Moreover, reciprocal conservation obligations are imposed on the United
States
under Article 9(a) of the Treaty. There is no sale of fishery resources as
there was in Larocque.
[17]
In
view of the appellants’ concession that their submissions regarding unjust enrichment
and restitution were made solely for the purpose of providing context and not
as a ground for judicial review, we need say nothing more about them.
[18]
Since
this is sufficient to dispose of the matter, we need not address the
appellants’ other arguments or the alternative arguments of the respondent
advanced to sustain the judge’s order.
[19]
At
the outset of the hearing of this appeal, the respondent brought a motion
seeking an order striking Notices of Constitutional Question served by the
appellants. The appellants submitted that the Notices raised issues concerning
the applicability and operability of certain unspecified provisions of the FAA.
We granted the motion, with reasons to follow. These are our reasons.
[20]
The
Notices are deficient and must be struck. They do not set out clearly and with
particularity what provisions are inapplicable or inoperative, and the grounds
for such a finding. They also do not specifically seek relief, such as
declaratory relief, that provisions are inoperative or inapplicable. Therefore,
the Notices fall short of what is required under section 57 of the Federal
Courts Act, R.S.C. 1985, c.F-7. We would add that the Notice of Appeal
similarly lacked clarity and particularity on this issue. We did indicate that
the appellants were not precluded from arguing constitutional considerations in
relation to issues of statutory interpretation.
[21]
The
appeal will be dismissed with costs.
"Carolyn
Layden-Stevenson"
“I
agree
John M. Evans J.A.”
“I
agree
David Stratas J.A.”
Email this Content