Date: 20091020
Docket: A-144-08
Citation: 2009 FCA 300
CORAM: BLAIS
C.J.
NADON J.A.
PELLETIER
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
ROBERT ARSENAULT, JOSEPH AYLWARD, WAYNE
AYLWARD,
JAMES BUOTE, BERNARD DIXON, CLIFFORD
DOUCETTE,
KENNETH FRASER, TERRANCE GALLANT, DEVIN
GAUDET,
PETER GAUDET, RODNEY GAUDET, TAYLOR
GAUDET,
CASEY GAVIN, JAMIE GAVIN, SIDNEY GAVIN,
DONALD HARPER,
CARTER HUTT, TERRY LLEWELLYN, IVAN
MACDONALD,
LANCE MACDONALD, WAYNE MACINTYRE, DAVID
MCISAAC,
GORDON MACLEOD, DONALD MAYHEW, AUSTIN
O’MEARA
Respondents
REASONS FOR JUDGMENT
NADON J.A.
[1]
This is an
appeal from a decision of Blanchard J. of the Federal Court, 2008 FC 492, dated
April 16, 2008, pursuant to which he ordered the Minister of Fisheries and
Oceans (the “Minister”) to implement the 2006 Management Plan for Snow Crab
Areas 12, 18, 25 and 26 (the “Management Plan”). More particularly, Blanchard
J. ordered the Minister to pay to the respondents their share of the $37.4
million of financial assistance provided in the Management Plan for traditional
crabbers.
[2]
The main issue
raised by this appeal is whether the Minister was bound by the Management Plan
which he approved on March 30, 2006. In other words, did the Management Plan
create rights which the respondents were entitled to enforce against the
Minister? For the reasons that follow, that question should be answered in the
negative.
THE FACTS
[3]
The facts
pertinent to this appeal can be summarized as follows.
[4]
On
September 17, 1999, the Supreme Court of Canada rendered its decision in R.
v. Marshall, [1999] 3 S.C.R. 456, wherein it held that pursuant to the
treaties of 1760-61 entered into by the Crown and the Mi’kmaq Indians, the
First Nations signatories were entitled to engage in traditional resource
harvesting activities for the purpose of earning a moderate livelihood.
[5]
As a
result of the Supreme Court’s decision in Marshall, supra, the Government of Canada put into place
in 2001 the “Marshall Response Initiative” (the “Marshall Initiative”) which
comprised a number of components and was funded by Parliament through the usual
processes for appropriations. As part of the Marshall Initiative, the
Department of Fisheries and Oceans (the “Department”) entered into fishing
agreements with First Nations so as to grant them communal fisheries access in
Canadian Atlantic commercial fisheries, including the snow crab fishery, and to
enable them to acquire the means and skills required to compete successfully in
commercial fishing.
[6]
One of the
components of the Marshall Initiative was a voluntary license retirement
program pursuant to which traditional fishers, including traditional crabbers,
would relinquish their fishing licenses which were then to be made available to
First Nations. The Department’s purpose in seeking the voluntary surrender of
fishing licenses was to avoid putting excess pressure on fishing resources.
[7]
Twelve of
the 30 fisheries agreements concluded with First Nations provided them with
access to snow crab. Specifically, the agreements provided First Nations with
access to a total of 15.8% of the available total allowable catch (the “TAC”).
[8]
From 2002
to March 2006, when the Marshall Initiative was scheduled to end, only ten snow
crab licenses had been retired under the retirement program, representing 4.96%
of the total snow crab access provided for in the fisheries agreements entered
into with First Nations, thus leaving a shortfall of 10.85% in voluntary
retirement quotas to offset the access provided to First Nations. In other words,
offers made by the Department to traditional crabbers to retire their fishing
licenses for a specified financial assistance did not meet with much success.
[9]
Consequently,
the Marshall Initiative was extended to March 31, 2007. In that light and considering
the lack of interest shown by traditional crabbers to voluntarily retire their
licenses, a Memorandum dated March 29, 2006, was placed before the Minister seeking
his decision with regard to a number of options available to deal with, inter
alia, financial assistance to traditional crabbers to offset the retirement
quotas acquired for First Nations under the Marshall Initiative. Specifically,
the Minister was requested to consider the following options:
1.
the
maintenance of the sharing arrangements that existed in 2005, with no financial
assistance to traditional crabbers;
2.
the
payment of $37.4 million in financial assistance to traditional crabbers to
offset 10.85% of the TAC needed to fulfill the First Nations share and the
adjustment of the TAC shares that would see 15.186% for First Nations, 65.182%
for traditional crabbers, 4.0% for snow crab fishing area 18 fisheries and 15.%
for new access;
3.
financial
assistance of $37.4 million with no adjustment to the sharing arrangement which
prevailed in 2005.
[10]
The
Memorandum recommended to the Minister that he approve option 2. On March 30,
2006, the Minister penned his concurrence to the departmental recommendation.
The Minister also approved a TAC of 27,869 tonnes if certain management
activities were implemented or a TAC of 20,862 tonnes should no management
activities be implemented.
[11]
On March
30, 2006, the Management Plan was issued by the Minister. He announced that for
the coming year, the TAC would be shared between traditional crabbers, First
Nations and new entrants into the fishery, and that this approach resulted in a
reduction of the percentage of the TAC to which traditional crabbers had been
entitled to in previous years. The Minister also announced that he had approved
financial assistance in the sum of $37.4 million which would be offered to
traditional crabbers to compensate them for their share of the TAC which had
now been transferred to First Nations.
[12]
Subsequently,
by way of letters dated July 11, 2006, the respondents were informed of the financial
assistance which had now been made available and their entitlement to a share
thereof. I hereby reproduce the letter written to Robert Arsenault, one of the
respondents:
Negotiations
between the Department of Fisheries and Oceans and the First Nations undertaken
under the Marshall Response Initiative are now over. The parties were able to
determine the level of access to be allocated to First Nations for snow crab in
areas 12, 18, 25 and 26. The access allocated to First Nations is 15.81% of the
Total Allowable Catch (TAC) available and, with the participants of 10
traditional enterprises holding the equivalent of 4.96% of the TAC available,
the shortfall is reduced to 10.85%.
In order to
close the file before the end of the program (March 31, 2007), the
Minister announced, in a news release dated March 30, 2006, a final solution
regarding the First Nations’ access to snow crab and $37.4 million in financial
assistance for traditional fleets. This assistance will be distributed to
traditional crab fishers, based on their allocation, in order to grant access
to snow crab to First Nations on a provincial basis.
The
Department of Fisheries and Oceans is prepared to provide you financial
assistance in the amount of $72,481 to relinquish your eligibility to receive
part of the snow crab allocation related to license #024375. You will find
attached three copies of the Financial Assistance Agreement that should be
returned to the department (return envelop included). As soon as DFO will have
received the 3 signed copies of the Agreement, a cheque will be processed and a
copy of the signed Agreement by DFO will be returned to you for your file.
[…]
[Emphasis
added]
[13]
As appears
from the above letter, three copies of a document entitled “Financial
Assistance Agreement to Provide Access to Snow Crab for Aboriginals, Areas 12,
18, 25/26” (the “Agreement”) were enclosed. The recipient was required, in
order to receive financial assistance, to sign three copies of the Agreement
and return them to the Department.
[14]
Not having
received a response from the respondents, Department officials wrote to them on
March 15, 2007, reminding them that they were entitled to financial assistance
under the Marshall Initiative and that they should return three copies of the
Agreement, duly signed, to the Department. Shortly thereafter, on March 21,
2007, the respondents wrote to Department officials, requesting the payment of
their share of the financial assistance provided in the Management Plan and
making it clear that they did not intend to sign the Agreement.
[15]
Further
correspondence was exchanged between the respondents and Department officials,
but to no avail, between March 21 and March 31, 2007, at which time the
Marshall Initiative expired. Hence, the respondents have not received any
financial assistance to compensate them for the reduction in their share of the
TAC.
[16]
The
respondents, traditional crabbers from Prince Edward Island, take issue with the
implementation of the Management Plan announced by the Minister on March 30,
2006. They argue, inter alia, that the release requested by Department
officials, found at clause 9 of the Agreement, did not form part of the
Management Plan and, thus, they were entitled to refuse to sign the Agreement.
Clause 9 of the Agreement reads as follows:
9.
In consideration for the payment herein, the Recipient here releases Her
Majesty the Queen in Right of Canada and Her Ministers, officers, employees and
agents from any and all claims, suits, actions or demands of any nature that
the Recipient has or may have and that are related to or arise from this
Agreement.
[17]
Hence, on
April 20, 2007, the respondents brought an application before the Federal Court
seeking, inter alia, a writ of mandamus requiring the Minister to
pay them the financial assistance provided in the Management Plan.
DECISION OF THE FEDERAL COURT
[18]
Blanchard
J. allowed the respondent’s application for judicial review in part. He ordered
the Minister to implement the Management Plan, as approved on March 30, 2006,
without the requirement that the respondents sign the release form.
[19]
Blanchard
J. was satisfied that the requirements for the issuance of a writ of mandamus
had been demonstrated. More particularly, he was of the view that following the
Minister’s approval and announcement of the Management Plan, his discretionary
power was spent and, as a result, he was legally bound to implement it. In
Blanchard J.’s view, since the Management Plan did not contain any requirement
that a release be signed by the respondents, this requirement could not be
imposed on them. In so concluding, Blanchard J. relied on sections 7 and 9 of
the Fisheries Act, R.S. 1985, c. F-14 (the “Act”) and held that the
Management Plan could only be revised or revoked under the specific statutory
conditions found in section 9.
[20]
Further,
Blanchard J. concluded that a public legal duty was owed to the respondents,
that there was a clear right to the performance of that duty, that there was no
other adequate remedy available to the respondents and that the balance of
convenience favoured the respondents.
SUBMISSIONS OF THE PARTIES
[21]
In favour
of their respective positions on this appeal, the parties make the following
arguments.
[22]
The
appellant submits that Blanchard J. erred in determining that the respondents
had established the requisite elements for the issuance of a writ of mandamus
and, in particular, that the approval of the Management Plan created an
enforceable legal duty.
[23]
According
to the appellant, Blanchard J. erred in holding that the Management Plan is a
binding legal document; rather, the appellant submits that the Management Plan
is a discretionary policy instrument that could not fetter the Minister’s
discretion in the management of the fishery and of the Initiative.
[24]
Furthermore,
the appellant contends that the other elements required for the issuance of a
writ of mandamus were not satisfied: no duty was owed to the respondents,
the respondents had not satisfied the conditions precedent giving rise to the
alleged duty to provide financial assistance without condition, there did exist
alternative remedies and the balance of convenience favoured the appellant.
[25]
The
respondents disagree completely with the view put forward by the appellant.
They submit that Blanchard J. did not err in finding that all the requisite
elements for the issuance of a writ of mandamus had been met and in
ordering the Minister to implement the Management Plan as announced. They argue
that the Management Plan was a final and binding exercise of discretion, not a
statement of policy.
[26]
In
particular, the respondents contend that there is no evidence that the Minister
changed his mind after announcing the Management Plan, but that it was
frustrated by officials of the Department of Justice who implemented the
requirement to sign a release. The respondents also allege that the appellant
is withholding requested information on the basis of cabinet confidence which
relates to the terms of the Initiative. As a consequence of the appellant’s
refusal to produce the documentation, the respondents urge this Court to draw
an adverse inference from the appellant’s conduct.
THE ISSUES
[27]
The issues
raised in this appeal are twofold:
1.
What is
the standard of appellate review?
2.
Did
Blanchard J. err in holding that the respondents had established the requisite
elements for the issuance of a writ of mandamus and, in particular, that
the approval of the Management Plan created an enforceable legal duty?
LEGISLATION
[28]
Before
addressing these two issues, it will be useful to reproduce sections 7 and 9 of
the Act:
|
7. (1)
Subject to subsection (2), the Minister may, in his absolute discretion,
wherever the exclusive right of fishing does not already exist by law, issue
or authorize to be issued leases and licences for fisheries or fishing,
wherever situated or carried on.
(2) Except as
otherwise provided in this Act, leases or licences for any term exceeding
nine years shall be issued only under the authority of the Governor in
Council.
[…]
9. The
Minister may suspend or cancel any lease or licence issued under the
authority of this Act, if
(a) the Minister has ascertained that the
operations under the lease or licence were not conducted in conformity with
its provisions; and
(b) no proceedings under this Act have been
commenced with respect to the operations under the lease or licence.
|
7. (1) En
l’absence d’exclusivité du droit de pêche conférée par la loi, le ministre
peut, à discrétion, octroyer des baux et permis de pêche ainsi que des
licences d’exploitation de pêcheries — ou en permettre l’octroi —,
indépendamment du lieu de l’exploitation ou de l’activité de pêche.
(2) Sous réserve
des autres dispositions de la présente loi, l’octroi de baux, permis et
licences pour un terme supérieur à neuf ans est subordonné à l’autorisation
du gouverneur général en conseil.
[…]
9. Le
ministre peut suspendre ou révoquer tous baux, permis ou licences consentis
en vertu de la présente loi si :
a) d’une part, il constate un manquement à
leurs dispositions;
b) d’autre part, aucune procédure prévue à la
présente loi n’a été engagée à l’égard des opérations qu’ils visent.
|
ANALYSIS
1. What is the standard of
appellate review?
[29]
The
appellant submits, on the basis of Housen v. Nikolaisen, [2002] 2 S.C.R.
235, that the applicable standard of review is correctness. In their
submission, this appeal raises questions of law or of mixed fact and law where
the question of law is readily extricable.
[30]
The
respondents submit, to the contrary, that Blanchard J.’s decision was in part
discretionary and that, as a result, a measure of deference must be afforded to
those discretionary aspects of his decision. The respondents contend that the
applicable standard comes from this Court’s decision in Apotex Inc. v.
Canada (Governor in Council), 207 FCA 374, at paragraph 15: the appellate
court may substitute its discretion for that of the lower court if the lower
court judge gave insufficient weight to relevant factors or proceeded on a
wrong principle of law, or if the judge seriously misapprehended the facts, or
where an obvious injustice would otherwise result. In making this contention,
the respondents do not say which parts of the judge’s decision were
discretionary and which parts were not. Nor do the respondents state which
standard should apply to the non discretionary parts of Blanchard J.’s
decision.
[31]
As I need
only address the question of whether the judge erred in holding that the
Management Plan created an enforceable legal duty in order to dispose of the
appeal and that that question is clearly a question of law in respect of which
the judge had to give the correct answer, the applicable standard is, without a
doubt, that of correctness. In any event, even if the applicable standard were
the standard enunciated by this Court in Apotex, supra, I would have no
difficulty concluding that Blanchard J. proceeded on a wrong principle of law
in finding that the respondents had established the requisite elements for the
issuance of a writ of mandamus.
2.
Did Blanchard J. err in holding that the respondents had established
the requisite elements for the issuance of a writ of mandamus and, in
particular, that the approval of the Management Plan created an enforceable
legal duty?
[32]
In Apotex
Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.),
affirmed by the Supreme Court of Canada in [1994] 3 S.C.R. 110, this Court
established the requirements that must be satisfied before a writ of mandamus
can issue. At pages 766 to 769, Robertson J.A. sets out those requirements in
the following terms:
1.
There
must be a public legal duty to act:
2.
The
duty must be owed to the applicant:
3.
There
is a clear right to the performance of that duty, in particular:
(a)
the
applicant has satisfied all conditions precedent giving rise to the duty;
(b)
there
was a prior demand for performance of the duty, a reasonable time to comply
with the demand, and a subsequent refusal which can be either expressed or
implied;
4.
Where
the duty sought to be enforced is discretionary, the following rules apply:
(a)
in
exercising a discretion, the decision-maker must not act in a manner which can
be characterized as “unfair”, “oppressive” or demonstrate “flagrant
impropriety” or “bad faith;
(b)
mandamus is
unavailable if the decision-maker’s discretion is characterized as being
“unqualified”, “absolute”, “permissive” or “unfettered”;
(c)
in
the exercise of a “fettered” discretion, the decision-maker must act upon
“relevant”, as opposed to “irrelevant”, considerations;
(d)
mandamus is
unavailable to compel the exercise of a “fettered discretion” in a particular
way; and
(e)
mandamus is only
available when the decision-maker’s discretion is “spent”; i.e., the applicant
has a vested right to the performance of the duty.
5.
No
other adequate remedy is available to the applicant:
6.
The
order sought will be of some practical value or effect:
7.
The
court in the exercise of its discretion finds no equitable bar to the relief
sought:
8.
On
a “balance of convenience” an order in the nature of mandamus favours
the applicant: […]
[Citations
omitted]
[33]
In the
present matter, I am satisfied that the Minister did not have a “public legal
duty to act” and, thus, Blanchard J. erred in concluding that the respondents
had established that the required elements for the issuance of a writ of mandamus
had been met. In my respectful view, the Management Plan was not a binding legal
document and, as a result, it was not enforceable by the respondents.
[34]
The
Management Plan is at the heart of this appeal. By its issuance, the Minister
made it known to interested parties and, in particular, to traditional
crabbers, what policy and practice he had decided to adopt or intended to adopt
for the coming year. The announcement made on March 30, 2006, is brief and I
therefore reproduce it in full:
Hearn
Announces 2006 Snow Crab Management Plan in Southern Gulf for Crab Fishing
Areas 12, 18, 25 and 26
March 30,
2006
Moncton – The
Honourable Loyola Hearn, Minister of Fisheries and Oceans (DFO), today
announced the 2006 Snow Crab Management Plan for Snow Crab Areas (CFAs) 12, 18,
25 and 26, in the southern Gulf of St. Lawrence.
The total
allowable catch (TAC) will be set at 25,869 tonnes (t) if enhanced management
activities are in place. “I am aware that industry was looking for a higher
level of TAC. However, I believe it is important to apply a prudent approach,
as the biomass is currently decreasing and a more cautious approach is likely
in 2007”, stated the Minister.
The
Department is presently reviewing proposals received for enhanced management
activities. If these activities doe not proceed, the TAC will be set at 20,862
t. The Department’s review will be completed in the coming days and further
information will be provided to industry.
Further to
the provision of “permanent” access to this fishery and the stabilisation of
the levels until 2009, the available TAC is allocated as follows: First Nations
receive 15.816%; the traditional fleets receive 65.182%; CFA 18 fishers receive
4.002% and new access receives 15%. The distribution of the TAC takes into
account a permanent solution to the quota shortfall required for First Nations
and financial assistance of $37.4M to the traditional fleets. When added to the
voluntary licence retirement programs, traditional fishers have received
payments of over $55 million for quota provided to First Nations under the
Marshall Response Initiative.
The
management measures from 2005 will be rolled over in 2006. They include
dockside monitoring, 30% at-sea coverage, Vessel Monitoring System (VMS), and
the Irving Whale exclusion zone. The implementation of the comprehensive soft
shell crab protocol will be in place if enhanced management activities proceed.
The requests from industry for changes to the management measures will be
discussed in the context of a future multi-year plan.
The
Department will turn its attention to consultations with stakeholders, after
the fishery, on the development of a long-term management strategy with a
preference for establishing a co-management approach will all of the key
harvester groups. Discussions could include such issues as the conduct of joint
scientific research, the concept of TAC decision rules, development of a
strategy for managing the fishery which takes into account fishing efforts in
the context of a decreasing biomass and funding for enhanced management of the
fishery.
The opening
date will be set by DFO taking into consideration operational requirements and
a recommendation from the industry-led Ice-Committee. The last day of fishing
will be July 15, 2006.
[35]
As can be
seen from the Minister’s announcement, the Management Plan deals with a number
of issues, including the TAC for the coming year and the compensation he
intends to offer to traditional crabbers whose share of the TAC was reduced by
reason of the Marshall Initiative.
[36]
The
reasoning which led Blanchard J. to conclude that the Minister was legally bound
to implement the Management Plan appears clearly from paragraph 32 of his
Reasons, where he states:
[32] Following
the decision in Marshall, the Minister had a legal obligation to
accommodate First Nations fishers. To do so and properly manage the resource,
he had no alternative but to reduce the quotas of the traditional crabbers. The
Minister was under no obligation to pay any compensation to the traditional
crabbers for the reduction in their quotas. However, once he elected to provide
financial assistance to them under the MRI and incorporate the financial
assistance package as part of the Management Plan, then the financial
assistance package became part of his discretionary decision. Once the
Management Plan was announced, the Minister’s discretionary power under the Act
was expended and the Plan could only be revised or revoked under the specific
statutory conditions found in s. 9 of the Act. Those conditions find no
application here. In these circumstances, the Minister had a public legal duty
to implement the Management Plan as announced. The legal duty flows from the
Minister’s statutory obligation to manage, conserve and develop the fishery
under the Act.
[Emphasis
added]
[37]
The
learned Judge appears to have treated the Management Plan as a matter akin to
the issuance of a license under section 7 of the Act. In other words, as in the
case of a license, once the Management Plan was announced/issued, the
Minister’s discretion was at an end. In my view, the Judge was wrong in so
concluding. I cannot possibly see how sections 7 and 9 of the Act can find application
in the present matter since those provisions, on their clear wording, only
apply to the Minister’s absolute discretion to issue or authorize the issuance
of fishing licenses (section 7) and, in the circumstances set out at paragraphs
9(a) and (b) of the Act, to the Minister’s power to suspend or cancel a license.
There can be no room to argue that the Management Plan falls within the ambit
of those two provisions.
[38]
Rather,
the Management Plan can only be viewed, in my respectful opinion, as a
statement or an expression of the Minister’s intent or as a guideline with
respect to those matters that are discussed therein. Its clear intent is to
outline those management and conservation practices and measures which the
Minister believes are necessary for the coming year. Further, it is trite law
that the Minister’s policy does not, and cannot, fetter his discretion with
regard to the matters dealt with in the policy. In Maple Lodge Farms Ltd. v.
Canada, [1982] 2 S.C.R. 2 at page 6 to 8, McIntyre J., writing for the
Court, made the following remarks concerning the Minister’s discretion under
section 8 of the Export and Import Permits Act, R.S.C. 1979, c. E-17,
which remarks are entirely apposite in the present matter:
[…] The
discretion is given by the Statute and the formulation and adoption of general
policy guidelines cannot confine it. There is nothing improper or unlawful for
the Minister charged with responsibility for the administration of the general
scheme provided for in the Act and Regulations to formulate and to state
general requirements for the granting of import permits. It will be helpful
to applicants for permits to know in general terms what the policy and practice
of the Minister will be. To give the guidelines the effect contended for by the
appellant would be to elevate ministerial directions to the level of law and
fetter the Minister in the exercise of his discretion. […]
[…]
In construing
statutes such as those under consideration in this appeal, which provide for
far-reaching and frequently complicated administrative schemes, the judicial
approach should be to endeavour within the scope and legislation to give effect
to its provisions so that the administrative agencies created may function
effectively, as the legislation intended. In my view, in dealing with
legislation of this nature, the courts should, wherever possible, avoid a
narrow, technical construction, and endeavour to make effective the legislative
intent as applied to the administrative scheme involved. It is, as well, a
clearly-established rule that the courts should not interfere with the exercise
of a discretion by a statutory authority merely because the court might have
exercised the discretion in a different manner had it been charged with that
responsibility. Where the statutory discretion has been exercised in good faith
and, where required, in accordance with the principles of natural justice, and
where reliance has not been placed upon considerations irrelevant or extraneous
to the statutory purpose, the courts should not interfere. […]
[39]
In my
view, the Minister’s powers to issue the Management Plan stem from his general
authority to manage the fishery, as exemplified by section 4 of the Department
of Fisheries and Oceans Act, R.S. 1985, c. F-15, which provides that:
|
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.
(2) The powers,
duties and functions of the Minister also extend to and include such other
matters, relating to oceans and over which Parliament has jurisdiction, as
are by law assigned to the Minister.
|
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.
(2) Les pouvoirs
et fonctions du ministre s’étendent en outre aux domaines de compétence du
Parlement liés aux océans et qui lui sont attribués de droit.
|
[40]
Further,
the Management Plan is consistent with the Minister’s obligations to manage,
conserve and develop the fishery on behalf of Canadians and in the public
interest. At paragraph 37 of his Reasons for a unanimous Supreme Court of
Canada in Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and
Oceans), [1997] 1 S.C.R. 12, Major J. made the following remarks:
[…] Canada’s fisheries
are a “common property resource”, belonging to all the people of Canada. Under the
Fisheries Act, it is the Minister’s duty to manage, conserve and develop the
fishery on behalf of Canadians in the public interest (s. 43). […]
[41]
In Carpenter
Fishing Corp. v. Canada, [1998] 2 F.C. 548, this Court, at paragraph 28 of
its Reasons, discussed the nature of a fishing quota policy imposed by the
Minister. Décary J.A., who wrote the Reasons for the Court, indicated that a
quota policy, in contrast to a fishing licence granted under s. 7 of the Act,
was a discretionary decision and that judicial review thereof was greatly
limited. He further indicated that the Minister could issue policy guidelines
as long as he did not fetter his discretion with respect to the granting of
licenses “by treating the guidelines as binding upon him”. His full remarks are
as follows:
28. 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. Policy
guidelines outlining the general requirements for the granting of licences are
not regulations; nor do they have the force of law. It flows from the
decision of the Supreme Court of Canada in Maple Lodge Farms v. Government
of Canada and from the decision of this Court in Canadian assn. of
Regulated Importers v. Canada (Attorney General), that the Minister,
provided he does not fetter his discretion to grant a licence by treating the
guidelines as binding upon him, may validly and properly indicate the kind of
considerations by which he will be guided as a general rule when allocating
quotas. 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.
[Emphasis
added]
[42]
Further,
in Carpenter, supra, Décary J.A. emphasized at paragraph 37 of his Reasons
the importance of affording the Minister broad discretion in the exercise of
his powers in relation to the establishment of a fishing quota policy:
37. It
follows that when examining the exercise by the Minister of his powers, duties,
functions and discretion in relation to the establishment and implementation of
a fishing quota policy, courts should recognize, and give effect to, the avowed
intent of Parliament and of the Governor in Council to confer to the Minister
the widest possible freedom to manoeuvre. 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.
[43]
I therefore
respectfully believe that Blanchard J. erred in law or that he proceeded on a
wrong principle of law in finding that the Minister’s discretion was spent when
he approved the Management Plan. The Management Plan is an expression of
policy, not a decision to grant permits under section 7, and the Minister’s
discretion is thus not exhausted by the approval thereof. The Minister was not
bound by his policy and he could, at any time, make changes thereto.
Consequently, whether the Minister turned his mind to a release of liability
condition when he issued the Management Plan or whether it was an afterthought
resulting from suggestions made by Department officials is, in my view, of no
help to the respondents, as the Minister could not fetter his discretion when
he issued the Management Plan.
[44]
As a
result, the fact that the Management Plan, as announced on March 30, 2006, did
not require Department officials to obtain a release of liability from the
respondents before financial assistance would be provided to them does not
constitute a basis for finding that the Minister was bound to implement the
Management Plan.
DISPOSITION
[45]
For these
reasons, I would therefore allow the appeal with costs and, rendering the
judgment which ought to have been rendered, I would dismiss the respondents’
judicial review application, also with costs.
“M. Nadon”
“I
agree.
Pierre
Blais C.J.”
PELLETIER J.A. (Concurring Reasons)
[46]
I have
read in draft the reasons of my colleague Nadon J.A. and though I come to the
same conclusion as he does, I do so for different reasons.
[47]
In my
view, it is misleading to speak of the Snow Crab Management Plan (which, like
my colleague and the application judge, I will refer to as the Management Plan)
as though it were a single decision. The Management Plan, as set out in the
press release, had a number of components:
- the Total
Allowable Catch (TAC) was set at 25,869 tonnes if certain conservation
measures were in place, 20,862 tonnes if they were not.
-
the TAC was allocated among stakeholders as follows: First Nations, 15.816%; the
traditional fleets, 65.182%; CFA 18 fishers, 4.002% and new access 15%.
-
certain management measures from the previous years were continued: dockside monitoring,
30% at-sea coverage, Vessel Monitoring System (VMS), the Irving Whale
exclusion zone and implementation of the comprehensive soft shell crab protocol
if enhanced management measures were in place.
-
the opening date of the season was to be set in consultation with an industry group;
the closing date was set at July 15, 2006.
-
financial assistance of $37.4 was available for the traditional fishery.
[48]
While some
of these measures are related, nonetheless each represents a discrete decision
which was to have effect in the 2006 fishery. Various statutory or regulatory
authorizations or approvals were involved. The issuance of fishing licences
with a reduced quota was an exercise of the statutory discretion found at
section 7 of the Fisheries Act R.S.C. 1985 c. F-14 (the Act). The
funding of the compensation plan required a Parliamentary appropriation. Other
measures may have required other types of regulatory approvals or
authorizations. In other words, the Management Plan was not a single decision,
or a one-time exercise of discretion.
[49]
To the
extent that the Management Plan represented decisions taken, it is not a
policy, that is, a guide to future decision-making. The decisions had been
taken. Only their implementation remained. Any rights which arose as a result
of the Management Plan arose as a result of the decisions which were actually
taken. As a result, I do not think that one can say that the Management Plan
created no legal duties because it was simply policy. Various rights and duties
flowed from each of the decisions taken. For example, the traditional crabbers’
licences were issued, subject to a lower quota than they had been in the past.
The TAC was fixed at a given level, subject to modification if certain
conservation measures were in place. Each of these decisions had legal
consequences.
[50]
The issue
in this appeal is whether the decision to offer compensation to the traditional
crabbers in conjunction with the a reduction in the quota attached to their
licences created a right, on the part of the crabbers, to receive that
compensation free of any limitation on their future claims for compensation and
a corresponding public legal duty, on the part of the Minister, to pay the
compensation without requiring the crabbers to surrender any rights to further
compensation.
[51]
The
crabbers assert that the source of their rights is the Memorandum dated March
29, 2006, in which certain options were laid before the Minister together with
a departmental recommendation, and the Minister’s selection of one of those
options. The crabbers’ describe this ministerial approval as a Ministerial
Order. For example, under the heading “public legal duty to act” in their
Memorandum, the crabbers say:
43.
There
is no issue as to the Minister’s authority to issue the Ministerial Order that
the Judgment under appeal enforces.
44. Upon
issuing his Order, the Minister created a public legal duty for his officials
to distribute financial assistance to traditional snow crabbers from
snow crab areas 12, 18, 25 and 26. It is important to note that in issuing
the order, the Minster did not impose any conditions on the release of
the said financial assistance.
45.
Being
traditional crabbers in the affected areas, the aforementioned legal duty was
owed to the Respondents.
[52]
The
crabbers’ view is that by indicating his concurrence with the departmental
recommendation, the Minister was ordering the department to implement that
recommendation exactly as he had approved it.
[53]
The
application judge linked the compensation plan to the issuance of the crabber’s
fishing licences, reasoning that since the compensation was intimately linked
with the reduction of the crabbers’ quotas, the two elements were but aspects
of a single decision under the Act. The application judge considered that the
decision was in substance a decision with respect to fishing licences, which
provided the statutory basis for the public legal duty to act.
[54]
In my
view, neither analysis withstands scrutiny. The crabbers’ position is that on a
proper construction of the Minister’s decision, it did not include the
requirement that crabbers waive their right to additional compensation in order
to obtain the benefit of the compensation being offered. Since this is a matter
of the interpretation of the document, it is a question of law and is a matter
on which no deference is owed, either to the application judge or to the
crabbers. There is nothing in the document itself which supports the conclusion
that the payment to the crabbers was to be made unconditionally. The recognition
that the crabbers would not be happy with the amount proposed and that they
would expect to receive more from litigation is nothing more than an
acknowledgement of the known facts. It is not an argument for or against the
proposition that the funds were to be paid unconditionally.
[55]
It is, I
believe, simply unrealistic to assume that in signing off on Option 2, the
Minister was thereby fixing all the terms of the compensation plan. He was
simply authorizing the continuance of the existing compensation plan in the
circumstances where quota re-allocation on the basis of voluntary surrender had
been abandoned. The details of the administration of the plan were, as they had
always been, in the hands of department officials and their legal advisers. Had
the ministry wished to recommend that the payments be made unconditionally, it
would have done so and had the Minister wished to insist that the payment be
made unconditionally, he would have done so as well. It is unlikely that the
Minister would authorize a partial payment to the crabbers which would exhaust
the appropriation for the Marshall initiative without addressing
his mind to the absence of Parliamentary authority for the balance of any
amounts to be paid. In my view, the crabbers have misinterpreted the document
on which they base their claim for mandamus.
[56]
The
application judge did not adopt the crabbers’ claim of a right to mandamus
based on a public legal duty arising from a ministerial directive. He
acknowledged that a public legal duty was one arising in a statute or a
regulation: see Arsenault v. Canada (Attorney General) 2008 FC 492, [2008] F.C.J.
No. 604 at paragraph 27. As noted above, he found the public legal duty to act
by conflating the right to compensation with the issuance of fishing licences subject
to reduced quotas.
[57]
The
crabbers had no legal right to any particular amount of quota. This flows from
the nature of fishing licences, in respect of whose issuance the Minister has
the broadest discretion: see Comeau’s Sea Foods Ltd v. Canada (Minister of
Fisheries and Oceans), [1997] 1 S.C.R. 12, [1997] S.C.J. No.5, at paragraph
49. Consequently, if there is no vested right to a given quota, there can be no
right to compensation arising purely from the fact of loss of quota. As a
result, the decision to offer compensation for lost quota is not one which is
based on a statute or a regulation. In fact, the crabbers allege in their
action that their right to compensation is a matter of contract. The exercise
of the minister’s discretion to issue fishing licences with reduced quota under
section 7 of the Act did not result in a public legal duty to pay compensation
for the lost quota. There being no public legal duty, the crabbers are not
entitled to an order of mandamus.
[58]
I would
therefore allow the appeal with costs and set aside the decision of the Federal
Court judge.
“J.D. Denis Pelletier”
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