Docket: T-1399-14
Citation:
2017 FC 1182
Ottawa, Ontario, December 21, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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THE SQUAMISH
INDIAN BAND, AND SYETÁXTN, CHRISTOPHER LEWIS ON HIS OWN BEHALF AND ON
BEHALF OF ALL MEMBERS OF THE SQUAMISH INDIAN BAND
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Applicants
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and
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MINISTER OF
FISHERIES AND OCEANS
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicants (referred to collectively as Squamish
Nation) seek judicial review of the May 8, 2014 decision of the Regional
Director General [RDG], Pacific Region of Fisheries and Oceans Canada [DFO]
denying a request for an increase to its Food, Social and Ceremonial [FSC]
fishing allocation for sockeye salmon in the Fraser River. The Squamish Nation argues
that its sockeye salmon allocation is not reasonable, fair, or based upon DFO’s
policies. It asserts Aboriginal rights to sockeye salmon and argues that the
DFO decision is not consistent with the constitutional duties of the Crown.
[2]
For the reasons outlined below, this judicial
review is dismissed. The request by the Squamish Nation for an increase in its allocation
of sockeye salmon was reasonably considered. DFO took into consideration the relevant
legislation and policies, the Squamish Nation’s asserted Aboriginal rights, and
the competing demands for a limited resource.
I.
Relevant Legislation and Policies
[3]
The framework for the management of Aboriginal
fishing is outlined in legislation and policy documents which DFO and the
Minister of Fisheries and Oceans [the Minister] use to manage allocation
requests.
[4]
The Minister’s fishery management powers are
outlined in the Fisheries Act RSC 1985 c F-14 [the Act] and the Department
of Fisheries and Oceans Act, RSC 1985 c F-15 [the DFO Act].
[5]
In particular, s.4 of the DFO Act provides
the Minister with broad powers as follows:
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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
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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 :
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(a) sea coast and inland
fisheries;
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a) à la
pêche côtière et à la pêche dans les eaux internes;
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(b) fishing and recreational
harbours;
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b) aux
ports de pêche et de plaisance;
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(c) hydrography and marine
sciences; and
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c) à
l’hydrographie et aux sciences de la mer;
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(d) the coordination of the
policies and programs of the Government of Canada respecting oceans.
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d) à la
coordination des plans et programmes du gouvernement fédéral touchant aux
océans.
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Idem
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Idem
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(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.
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(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.
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[6]
Under the authority of section 4 of the DFO
Act the Minister determines the FSC allocations and the total allowable
catch quantities, referred to as “mandates.”
Mandates set the total allowable catch quantities for each Aboriginal group.
[7]
Pursuant to s.43 of the Act, the Aboriginal
Communal Fishing Licence Regulations [ACFLR], SOR/93-332 were implemented.
The ACFLR provides a licencing mechanism for Aboriginal fisheries for
FSC purposes through the grant of communal licences. Under s.5 of the ACFLR,
the Minister can set conditions or restrictions on fishing through the communal
licences. The quantity and type of fish caught can be agreed as between the
Aboriginal group and DFO through Comprehensive Fishing Agreements [CFA], or
unilaterally set by the Minister.
[8]
Since the early 1990s, the Squamish Nation has
entered into CFAs with DFO.
[9]
With respect to the Aboriginal right to fish and
its scope, the CFA contains the following language: “…the
Parties are not seeking to determine the existence, nature or scope of Aboriginal
or treaty rights, but rather are seeking to provide for the orderly management
of the fisheries…”.
[10]
In addition to the ACFLR, DFO has a
number of policies respecting Aboriginal fisheries.
[11]
In 1992 DFO introduced the Aboriginal
Fisheries Strategy [AFS] which outlines the general approach to licencing
taking into consideration the Supreme Court’s decision in R v Sparrow,
[1990] 1 S.C.R. 1075 [Sparrow]. The AFS provides the policy framework for
the setting of mandates, which form the basis for the licencing quantities under
the CFAs and community licences.
[12]
In 1993 the Policy for the Management of
Aboriginal Fishing [the Policy] was introduced. This Policy
was designed to implement the AFS and to reflect the law on Aboriginal fishing
rights set out in Sparrow. The Policy notes that Aboriginal
fishing for FSC purposes will only be restricted to achieve a valid
conservation objective, to provide for sufficient food fish for other
Aboriginal people, or to obtain some other pressing and substantial objective.
The Policy also sets out how licences are issued and the allocation
process.
[13]
In 2006, DFO established the First Nations
Access to Fish for Food, Social and Ceremonial Purposes [Access
Framework], designed to formalize the decision making process for allocations
beyond the mandate amount. The relevant parts of the Access Framework for
this application include Part 2: Pacific Regional Evaluation and Decision
Framework (Working Draft) [Part 2] and Part 2A: Pacific Region
Evaluation and Decision Framework—Request for Allocation Change (Working Draft)
[Part 2A]. Part 2A outlines the criteria which DFO considers when analyzing a
claim for an allocation increase.
[14]
The Access Framework criteria are stated in
general terms and it is acknowledged that the information collected (“indicators”) under the criteria will vary with each
request. Part 2 states:
…Because the relative important of the
indicators will vary with each request, no weighting scheme was developed;
teams should identify the indicators that are of greatest importance to the
request, and consider how they should influence evaluation of the associated
criterion.
The criteria evaluation is not intended to
be determined by a mathematical approach (e.g. adding/subtracting the plusses
and minuses) – it needs to take into consideration the overall importance of
the key indicators of relevance to the request.
[15]
The Access Framework outlines the DFO process
for considering an allocation increase in excess of the mandate limits, as follows:
- Upon receiving a
request from a First Nation, the Area representative engages other Area
staff as appropriate and obtains as much information as possible from the
First Nation, including supporting rationale, and documentation of current
harvest levels. The Area representative provides the RHQ-AFS Manager with
a copy of the request and supporting information.
- The RHQ-AFS
Manager contacts the Treaties and Aboriginal Policy Senior Negotiator, who
then engages the appropriate Regional Negotiator.
- The RHQ-AFS
Manager provides the Area representative with summary data on current FSC
allocations for the requesting First Nation, and neighboring First
Nations, for comparison.
- The Area
representative takes the lead in completing the evaluation, and involves
other DFO staff.
- When a draft
evaluation has been prepared, the area representative seeks feedback from
other DFO staff, who use the criteria in the Access Framework to
develop a final evaluation and recommendation. A decision note is prepared
for the RDG.
- Once the RDG
approves the request, a communal licence is issued.
- If the decision
is for no allocation increase, staff send a letter to the First Nation, outlining
the decision rationale.
II.
Factual Background
[16]
On July 5, 2011 the Squamish Nation requested an
increase in its FSC allocation beyond the mandate amounts as follows:
As you are aware, Canadian case law is very
clear that when fishing for food, social and ceremonial purposes First Nations’
have top priority over user groups, subject only to conservation purposes. Our
membership has expressed serious concern respecting the quantity of fish which
has been allocated to our Nation in recent years. We wish to discuss a
substantial increase in this allocation, which will come closer to meeting the
food, social and ceremonial needs of our membership. Based on our observation
that the per capita allotment we have received in the past several years has
been substantially less than that provided to other First Nations in our area,
we anticipate that an increase in our allocation should be readily available.
[17]
In December 2011, DFO officials and members of
the Squamish Nation met to discuss this request.
[18]
Following this meeting, the Squamish Nation
limited its request to an increase for sockeye salmon from the allotment of 20,000
sockeye salmon pieces to 70,000 sockeye salmon pieces. On January 27, 2012 it wrote
as follows to DFO:
…the Squamish Nation is receiving
substantially less FSC fish, on a per capita allotment, than other First
Nations in our area. Our FSC allotment number has not increased since the
original allocation in the 1990’s. Meanwhile our membership population numbers
and necessities for FSC fish have substantially increased. Currently, Squamish
Nation members receive approximately five (5) FSC fish per person, which is not
meeting our community’s needs. Upon further review and analysis, we found that
other First Nations in our area are receiving up to 48 FSC fish per person.
Many Squamish Nation members rely on FSC fish to sustain them through the year
and five fish per person does not meet their needs. You are likely aware that a
large proportion of First Nations people in Canada live below the poverty line
and Squamish Nation members fall within that category. Therefore, we are
requesting that the FSC allocation for the Squamish Nation is increased to 20
fish per person, which based on today’s membership numbers would be a total of
70,000 pieces of sockeye for the Squamish Nation under the CFA.
[19]
There are a number of varieties of salmon which
the Squamish Nation access in the Fraser River including sockeye, pink, coho,
chinook, and chum. The Squamish Nation’s request for an allotment increase
related only to sockeye salmon.
[20]
In the ensuing period, various meetings were
held and letters were exchanged between the Squamish Nation and DFO officials. In
these exchanges, the Squamish Nation reiterated its asserted Aboriginal right
to sockeye salmon by noting the historical significance of sockeye salmon to its
community.
[21]
For its part, DFO outlined the information it required
to process the FSC allocation increase request and explained the relevant
policies and guidelines. In October 2013, DFO requested reliable catch
information on all Squamish Nation fisheries for all species, and requested information
on how the Squamish Nation was estimating the FSC requirements for its community.
[22]
On December 18, 2013, the Squamish Nation
responded with partial catch information and also provided historical
information regarding its asserted claim to fish Fraser River sockeye salmon.
[23]
On April 7, 2014, DFO notified the Squamish
Nation that it was consulting the other Aboriginal groups who also have Fraser River
sockeye FSC allocations.
III.
Decision Under Review
[24]
On May 8, 2014 the RDG, acting on behalf of the
Minister, issued its decision in response to the Squamish Nation request for an
increase in the sockeye salmon allocation. The decision states that it took into
consideration “factors such as community FSC needs,
recent harvest levels, your community’s preferences, the availability of
species in your fishing area, including the Squamish and Capilano Rivers and
the marine environment, and the implications for other First Nations.”
[25]
DFO authorized an increase to the allocations for
the 2014 licencing period and beyond by increasing the sockeye salmon numbers to
30,000 pieces from the previous 20,000 pieces. As well, increases were approved
to the allocations for chum and pink salmon, while the allocations for chinook
and coho remained unchanged. Squamish Nation access to crab and prawn remained
unchanged.
[26]
The decision notes a high demand for sockeye salmon
and the fact that over 100 First Nations have licences to fish the Fraser River
for sockeye salmon for FSC purposes. DFO also notes that it received numerous
requests for increases in salmon allocations, with insufficient sockeye salmon available
to fulfill even the current FSC allocations.
[27]
The decision states that the goal was to balance
“the Squamish interest in Fraser sockeye with FSC
allocations of other groups, of which many only have access to Fraser salmon,
and with consideration to overall harvest constraints.” The increases in
other fish opportunities in salmon allocated to the Squamish Nation were designed
to contribute to this balance.
IV.
Preliminary Issue: Motions to Strike Evidence
[28]
In support of their Application, the Squamish
Nation filed the following Affidavits:
- Affidavit of
Christopher Lewis sworn to [or affirmed] on January 25, 2017;
- Affidavit of Raquel
Handel sworn to [or affirmed] on January 25, 2017;
[29]
The Respondent filed the following Affidavits:
- Affidavit of
Jennifer Nener affirmed on March 30, 2017;
- Affidavit of Rebecca
Liang sworn to on March 30, 2017;
[30]
Both the Squamish Nation and the Respondent
filed motions seeking to strike various paragraphs and related exhibits of the
Affidavits of the other party on the grounds that the impugned paragraphs and
exhibits contain hearsay or information that was not before the decision-maker.
[31]
As the certified tribunal record is sparse, it
would seem, at first glance that the request to strike various paragraphs and
exhibits is reasonable as much of the information filed by the parties on this
judicial review was apparently not before the decision-maker.
[32]
The law relevant to these motions is set out in Association
of Universities and Colleges of Canada v Canadian Copyright Licencing Agency
(Access Copyright), 2012 FCA 22 [Access Copyright]. There, the Federal
Court of Appeal noted that the evidentiary record before the court on judicial
review must be the same as the record that was before the individual
decision-maker, subject to certain exceptions.
[33]
The exception relevant to both motions here is
the “general background” exception: “where the affidavit provides general background information
that might assist in understanding the issues relevant to the judicial review”
(Access Copyright, at para 20).
[34]
Notwithstanding the limited record here, I am of
the view that this evidence is admissible under the “general
background” exception. Considering the relationship between these
parties, the complex nature of fisheries management, and the constitutional
rights asserted by the Squamish Nation, in my view this information provided by
both parties is appropriate to consider within that context.
[35]
However, given that much of this information is
not directly relevant to the central issues between the parties on this
judicial review, it has accordingly been assigned little weight.
V.
Issues
[36]
The Squamish Nation raises various issues which
I have framed as follows:
- What is the appropriate
standard of review?
- Was the duty to
consult breached?
- Is the decision
reasonable?
- Was there a
breach of procedural fairness?
VI.
Analysis
A.
What is the appropriate standard of review?
[37]
The appropriate standard of review needs to be
considered in relation to the various issues raised by the Squamish Nation regarding
the impugned decision, namely: (i) the duty to consult (ii) the reasonableness
of the RDG’s exercise of discretion and (iii) the fairness of the process.
(1)
The Duty to Consult
[38]
In Haida Nation v British Columbia (Minister
of Forests), 2004 SCC 73 at paras 61-63 [Haida], the Supreme Court of
Canada held that the determination of the existence and extent of the duty to
consult or accommodate is a question of law generally reviewable on a
correctness standard, though, depending upon the circumstances, some deference may
be appropriate to the decision-maker’s assessment of the facts (see Beckman
v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 48 [Beckman];
Ahousaht First Nation v Canada (Fisheries and Oceans), 2008 FCA 212 at
para 34 [Ahousaht]).
[39]
Whether the duty to consult exists on the facts
depends on whether it is triggered. Here whether the duty to consult was
triggered is reviewable on a correctness standard (Ahousaht, at paras
34-35).
[40]
In Haida at paras 61-62, the Supreme
Court confirmed that if the duty to consult is triggered, whether DFO’s
consultation process met the duty is reviewed on a reasonableness standard.
(2)
Exercise of Discretion
[41]
On this issue, the parties agree that in
reviewing the decision the standard of review is reasonableness. The parties
disagree, however, on what reasonableness requires in this case.
[42]
Where precedent adequately settles the standard
of review, there is no need to conduct a standard of review analysis (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 57 [Dunsmuir]).
[43]
Here, the courts have adequately settled on a
standard of review for issues of discretion. In Maple Lodge Farms v Government
of Canada, [1982] 2 S.C.R. 2 at 5-6 [Maple Lodge], the Supreme Court
held that a court can only interfere with the substance of the discretionary
decision if it is made in bad-faith, if it does not conform with the principles
of natural justice, or if it relies on considerations which are irrelevant or
extraneous.
[44]
As a matter of law, the Maple Lodge
factors are grandfathered into the reasonableness standard defined in Dunsmuir,
such that any breach of those factors will render a decision unreasonable in
this context (Catalyst Paper Corp v North Cowichan (District), 2012 SCC
2 at paras 18-24; Malcolm v Canada (Fisheries and Oceans), 2014 FCA 130,
at paras 31-35 [Malcolm FCA].
[45]
The process of issuing licences is distinct from
the legislation and policies which provide the Minister the authority to set
FSC allocations (Association des crevettiers acadiens du Golfe inc v Canada
(Attorney General), 2011 FC 305 at para 29). Together, the policies and
licencing process create a specialized and complex field of regulation (Carpenter
Fishing Corp v Canada, [1998] 2 FC 548 (CA) [Carpenter]; Malcolm
v Canada (Fisheries and Oceans), 2013 FC 363 at para 49 [Malcolm FC]
aff’d Malcolm FCA. As a result, in Carpenter, the Federal
Court of Appeal noted:
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.
[46]
Accordingly, courts have applied a high standard
of deference to discretionary decisions such as the decision at issue in this
case. The decision to increase allocations is a matter of fishing policy, as
described in Carpenter. Here, DFO must take into account a number of
competing factors in determining increases, including: the interests of other
Aboriginal groups; the legitimate legislative purpose of conservation; and the
community needs of the Squamish Nation.
[47]
The decision to increase an allocation, while
part of the licencing process, also involves factors which affect other First
Nations. This is therefore a policy-based decision based on the broad
Ministerial regulatory authority in s.4 of the DFO Act, rather than a
simple licencing decision.
[48]
As such, this Court will apply a highly
deferential reasonableness standard to the exercise of the Ministerial
discretion in this case (Malcolm FCA, at para 35; Mainville v Canada
(Attorney General), 2009 FCA 196 [Mainville]; Canada (Attorney
General) v Arsenault, 2009 FCA 300 at paras 38-42).
(3)
Procedural Fairness
[49]
Courts traditionally apply the correctness
standard to matters of procedural fairness (Mission Institution v Khela,
2014 SCC 24 at para 79).
[50]
The Federal Court of Appeal has recently noted
that it is unclear which standard applies to procedural fairness (Vavilov v
Canada (Citizenship and Immigration), 2017 FCA 132 at para 13). In other
words, it is not “settled law” that the
correctness standard applies to issues of procedural fairness.
[51]
However, for the reasons outlined below, I
conclude there has been no breach of procedural fairness in this case, whether
assessed under a correctness or reasonableness standard of review.
B.
Was the duty to consult breached?
(1)
Must DFO consider Aboriginal rights?
[52]
The Squamish Nation argues that DFO failed to
consider its asserted but unproven Aboriginal right to sockeye salmon. Relying
on Haida, it argues that the nature of their asserted right (to sockeye
salmon), is an essential consideration to DFO fulfilling its duty to consult. It
argues that DFO was required to conduct a “strength of
claim” analysis and accommodate accordingly. The Squamish Nation argues
that DFO failed on both its duties to consult and accommodate.
[53]
DFO argues that in the context of CFAs, it does
not determine the existence or scope of Aboriginal rights. This is reinforced
by the language used in the CFAs and communal licences, which expressly state
that they do not define the existence of Aboriginal rights. DFO further argues
that judicial review proceedings are not the appropriate forum for the
consideration of the Squamish Nation’s Aboriginal rights claims.
[54]
Judicial review proceedings cannot provide a
forum for the proof of Aboriginal rights. Such claims requires extensive
evidence in order to meet specific legal tests addressed in the context of a
full trial: R v Van Der Peet, [1996] 2 S.C.R. 507; Delgamuukw v British
Columbia, [1997] 3 S.C.R. 1010 at paras 109 and 143; Mitchell v M.N.R.,
2001 SCC 33 at para 26; Tsilhqot’in Nation v British Columbia, 2014 SCC
44 at para 26; Prophet River First Nation v Canada (Attorney General),
2017 FCA 15 at paras 74 and 78 [Prophet River].
[55]
Notwithstanding this however, all
administrative decision-makers must act consistently with the law, and must
exercise their discretion in accordance with the Constitution and the rule of
law (Roncarelli v Duplessis, [1959] S.C.R. 121; Baker v Canada,
[1999] 2 S.C.R. 817 at para 53).
[56]
In ensuring compliance with the Constitution in
the Aboriginal rights context, judicial review proceedings can take into
account “the constitutional dimension of the rights
asserted by the First Nation” because “administrative
law is flexible enough to give full weight to the constitutional interests”
of Aboriginal peoples (Beckman, at para 47).
[57]
Here therefore DFO, as the administrative
decision-maker, must abide by constitutional limits when they are at issue. In
the context of Aboriginal rights decision-making, the Supreme Court in Beckman
confirmed that these limits are imposed by the duty to consult:
[45]…However, as Lamer C.J. observed in R.
v. Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 S.C.R. 507, “aboriginal rights
exist within the general legal system of Canada” (para. 49). Administrative
decision makers regularly have to confine their decisions within constitutional
limits: Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1
S.C.R. 1038; Little Sisters Book and Art Emporium v. Canada (Minister of
Justice), 2000 SCC 69 (CanLII), [2000] 2 S.C.R. 1120; Suresh v. Canada
(Minister of Citizenship and Immigration), 2002 SCC 1 (CanLII), [2002] 1 S.C.R.
3; and Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 (CanLII),
[2006] 1 S.C.R. 256. In this case, the constitutional limits include the
honour of the Crown and its supporting doctrine of the duty to consult (emphasis
added).
[58]
This was most recently confirmed by the Supreme
Court in Clyde River (Hamlet) v Petroleum Geo-Services Inc., 2017 SCC 40
at para 24 [Clyde River], where the Court noted that judicial review can
provide a framework for assessing the duty to consult:
…any decision affecting Aboriginal or treaty
rights made on the basis of inadequate consultation will not be in compliance
with the duty to consult, which is a constitutional imperative. Where
challenged, it should be quashed on judicial review.
[59]
Similarly, in Prophet River at para 73,
the Federal Court of Appeal confirmed that the duty to consult is the doctrine
which imposes limits on administrative decision-makers in the context of
considering asserted Aboriginal rights. At the same time, the Court also
confirmed that judicial review proceedings cannot provide a forum for the
determination of substantive Aboriginal rights.
[60]
This follows because the duty to consult deals
with unproven assertions of rights. It is a precursor to the full proof of
Aboriginal rights, which is left for trial (Haida, at paras 31-38).
[61]
However, the duty to consult does not arise in
every context. Whether the duty to consult actually imposes constitutional limits
depends on whether it exists, and is triggered, on the facts (Ahousaht,
at paras 34-35).
[62]
Therefore, in these circumstances, if the duty
to consult was triggered, DFO must abide by the constitutional limits imposed
by the duty, and the Minister’s actions in this respect are reviewable in the
context of judicial review proceedings.
[63]
However, abiding by constitutional limits does
not require a decision-maker to pronounce upon the existence of Aboriginal
rights. Nor does the duty to consult require decision-makers to determine
the existence of claimed rights. Rather, it requires decision-makers to consider
the asserted rights, pending a fulsome determination of those rights in another
forum (Haida, at paras 25 and 27).
[64]
Accordingly there is a distinction between
considering rights and deciding rights. Administrative decision-makers cannot determine
the existence of Aboriginal rights, but they can consider asserted
rights if the duty to consult is triggered. Although the Respondent argues that
DFO “does not make decisions about rights”, as a
matter of constitutional law, if the duty to consult is triggered, DFO would be
bound by that duty.
[65]
In this case, if the duty to consult arises, I
am satisfied that DFO had an obligation to consider the good-faith assertion of
rights by the Squamish Nation.
(2)
Was the duty to consult triggered?
[66]
The question of whether the duty to consult is
triggered is assessed on the facts. In Rio Tinto Alcan Inc. v Carrier Sekani
Tribal Council, 2010 SCC 43 at para 31 [Rio Tinto], the Supreme
Court outlined the following factors to identify when the duty is triggered:
- the Crown has
knowledge, actual or constructive, of a potential Aboriginal claim or
right;
- there is
contemplated Crown conduct; and
- there is
potential that the contemplated conduct may adversely affect an Aboriginal
claim or right.
[67]
Here, the DFO had knowledge of the Squamish
Nation’s asserted rights, and there was conduct attributable to the Crown in
the form of issuing licences. Therefore, I am satisfied that the Squamish Nation
can establish the first two Rio Tinto factors.
[68]
The challenge is with the third factor of the Rio
Tinto test. In considering the “adverse impact”
factor in Rio Tinto at para 46, the Supreme Court notes that speculative
impacts are not sufficient, and that there must be a causal relationship
between the proposed government conduct or decision and a potential for adverse
impacts on pending credible Aboriginal claims or rights.
[69]
Further, in considering the issue of adverse
impact, courts have concluded that there must be some evidence to support the
adverse impact on a “credible claim” (Brokenhead
Ojibway First Nation v Canada (Attorney General), 2008 FC 735 at para 34).
[70]
Applying this law, I am not satisfied that the Squamish
Nation has established, with evidence of a credible claim, that the DFO conduct
will “adversely affect” the asserted
right to fish (specifically, for sockeye salmon) in the Fraser River for FSC
purposes. In fact, the Squamish Nation exercises this asserted right to fish
for sockeye salmon by virtue of the FSC allocation for this species. It is
therefore difficult for the Squamish Nation to argue that its asserted right is
adversely impacted by the decision under review.
[71]
Here, the Squamish Nation has characterized its asserted
claim as a right to fish the Fraser River for sockeye salmon for FSC
purposes. It is not a claim of Aboriginal right respecting 70,000+ sockeye
salmon. In fact, in R. v Sappier;R. v Gray, 2006 SCC 54 at para
21[Sappier], the Supreme Court held that Aboriginal rights are “…not generally founded upon the importance of a particular
resource” such as a particular quantity of sockeye salmon in this case.
[72]
Accordingly, the Squamish Nation had to present
evidence to demonstrate how not being able to fish for 70,000 sockeye salmon
pieces versus the 30,000 sockeye salmon pieces (which were allocated) has an
adverse impact on its asserted claim to fish for sockeye salmon for FSC
purposes.
[73]
It failed to do so. Beyond providing evidence
which demonstrated the importance of sockeye salmon to their culture, the
Squamish Nation did not establish the causal link between the allocation and
how that allocation would adversely affect the Squamish Nation’s ability to
fish sockeye for FSC purposes on the Fraser River.
[74]
The Squamish Nation further failed to show, with
evidence, how the existing FSC allocation is insufficient for FSC purposes,
thereby impacting the asserted right. While the Squamish Nation relies upon a
letter which states: “As members receive 5 Sockeye or
less, there is not enough Sockeye to be stored for our community’s social and
ceremonial purposes,” no evidence was provided as to why 5 sockeye was
not enough for social and ceremonial reasons. Beyond a stated preference for
sockeye salmon, the Squamish Nation did not address why other fish cannot
satisfy the food needs of the community.
[75]
The Squamish Nation had the opportunity to
provide evidence on the link between its asserted right and the impact of the
allocation on that right. In its letter of October 16, 2013, DFO asked the
Squamish Nation for “information pertaining to the
method by which the Squamish Nation were estimating the [FSC] requirements for
their community for both salmon and non-salmon species.” This
information would be necessary to demonstrate that the DFO allocations were
adversely affecting the general, asserted Aboriginal right of the Squamish
Nation to fish the Fraser River for sockeye salmon.
[76]
While the duty to consult can be triggered at a
low threshold (Mikisew Cree First Nation v Canada (Minister of Canadian
Heritage), 2005 SCC 69 at para 34), the authorities mandate that the
asserted claim must be backed by evidence to trigger the duty to consult. Given
the lack of evidence of an adverse impact on the Squamish Nation’s asserted
right with the FSC allocation, I conclude that the duty to consult was not
triggered in this case.
[77]
Therefore, DFO was not obligated to consider the
issue of the asserted Aboriginal rights in the broader duty to consult paradigm
and the RDG decision respected constitutional limits on its discretion.
[78]
Nonetheless, if the duty to consult was
triggered in this case, I am satisfied, based upon the facts of this case, that
the duty was at the low end of the spectrum (Gitxaala Nation v Canada, 2016
FCA 187 at paras 173-174 [Gitxaala]). The extent or content of the duty
to consult is fact specific, and the depth of consultation required is
proportionate to the strength of the claim asserted and the potential adverse
impact (Clyde River, at para 20; Gitxaala, at para 173). As noted
above, the Squamish Nation has failed to offer sufficient evidence of adverse
impact on its asserted right. In other words, the Squamish Nation failed to
show a strong link between the allocation and its asserted right to fish the Fraser
River for sockeye salmon.
[79]
I am satisfied on the evidence that any duty to
consult was met in the circumstances as the Respondent was required “only to give notice of the contemplated conduct, disclose
relevant information and discuss any issues raised in response to the notice”
(Gitxaala at para 174; Haida, at para 44). That threshold is
satisfied here.
[80]
In reaching this conclusion, I rely in
particular upon the evidence of Ms. Nener in her Affidavit at paragraphs 30
through 81 where she outlines the consultation which took place between the
parties here, summarized as follows:
- A meeting on
December 13, 2011, where DFO asked Squamish Nation for information about
their allocation request;
- The letters of
January 27 and April 18, 2012, in which the Squamish Nation reiterated its
requests for expanded FSC fishing opportunities;
- DFO’s letter of
April 27, 2012, in which it outlined the information and factors it would
take into consideration in the allocation request;
- DFO’s letter of
January 25, 2013, in which it reiterated the competing considerations
involved in granting the Squamish Nation’s request: the need to consider
the various policies involved and the overlapping Aboriginal fisheries
claims and issues in the area;
- DFO’s letter of
May 17, 2013, in which it acknowledged information provided to it by the
Squamish Nation in the consultation process;
- DFO’s letter of
October 16, 2013, in which it made clear that in order to process the
Squamish Nation’s request, it would require reliable catch information
from all Squamish Nation fisheries and species, plans to accommodate any
FSC allocation change request, and information pertaining to the method by
which the Squamish Nation were estimating the FSC requirements for their
community;
- The Squamish
Nation’s December 18, 2013 letter, in which the Squamish Nation provided
partial catch information and set out the historical bases of its claim to
fish the Fraser River; and
- DFO’s letter of April
7, 2014, in which DFO responded to concerns outlined by Squamish Nation
regarding the processing of its allocation increase request, and informed
the Squamish Nation that it was beginning its consultation with other
First Nations who have Fraser sockeye FSC allocations.
[81]
These communications demonstrate that the
Squamish Nation was consulted and had various opportunities to provide evidence
to substantiate its claim. It also demonstrates that DFO informed the Squamish
Nation of the information it required to consider its request. I am also
satisfied that DFO kept the Squamish Nation informed as the process unfolded.
[82]
Accordingly, I conclude that if the duty to
consult was triggered in this case, DFO’s consultation and information gathering
satisfied their obligation.
[83]
I now turn to a consideration of the
reasonableness of the decision under review.
C.
Is the decision reasonable?
[84]
The Squamish Nation raises three principal
arguments regarding the reasonableness of the decision.
[85]
First, it argues that the RDG failed to consider
a relevant factor in the Access Framework - namely, parity and
comparison with other Aboriginal groups. Throughout the process, the Squamish
Nation made repeated references to the comparison of its FSC allocations to other
Aboriginal groups. According to the Squamish Nation, the RDG decision fails to
explain why other Aboriginal groups with a smaller population have higher
allocations for sockeye salmon. It argues that DFO failed to apply the parity
factor referenced in the Access Framework.
[86]
Second, the Squamish Nation argues that the RDG
failed to consider the historical and ceremonial preference of the Squamish
Nation for sockeye salmon. This is related to the Squamish Nation’s asserted
right for sockeye salmon, analyzed above.
[87]
Finally, the Squamish Nation argues that based
on its population, the FSC allocation of sockeye salmon cannot meet its
community’s food needs.
[88]
The reasonableness of the RDG’s decision will be
analyzed against these arguments.
(1)
Parity and Comparison
[89]
In this case, parity and comparison with other
Aboriginal groups was considered by the RDG. On the highly deferential
reasonableness review mandated by the authorities, there is no basis for the
Court to intervene.
[90]
The relevant underlying policy is the Access
Framework, which outlines the Minister’s discretion in authorizing an
allocation increase. The 2006 version of the worksheets under the Access
Framework contain, as the Squamish Nation points out, criteria and
indicators relating to parity and comparison with other groups in the area on a
per capita basis.
[91]
During the timeframe when the Squamish Nation’s
request was being considered, the DFO criteria and indicators were being reconsidered.
This is noted in the Affidavit of Jennifer Nener at para 108. Part 2 of the Access
Framework notes that the information for each relevant criterion will vary with
the circumstances and with the particular request being considered.
[92]
The criteria involved in the consideration of
this decision included:
- First Nations’
community needs: food needs, harvest information, current allocations for
all species, local species availability;
- Conservation
concerns;
- Other valid
legislative objectives: health, safety, other First Nations potential or
established rights, potential adverse impacts to other First Nations’
access; and
- Manageability:
fisheries monitoring, management plans, etc.
[93]
Here, parity with other Aboriginal groups on a
per capita basis was not expressly considered in the decision. However,
the decision and the record demonstrate that comparison was considered in the
analysis. DFO notes that because demand for sockeye is high, and supply was low
“DFO has worked to arrive at a decision that balances
the Squamish interest in Fraser sockeye with FSC allocations of other groups of
which many only have access to Fraser salmon, and with consideration to overall
harvest constraints.” Accordingly, the expressed community needs of the Squamish
Nation, and the needs of other Aboriginal groups, were factored into the
decision to grant a 10,000 piece increase in sockeye salmon to the Squamish
Nation.
[94]
This analysis is reasonable when assessed
against the record (Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62 at paras 14-15). The record and
decision demonstrate that sockeye salmon is a sought-after resource, with over
100 Aboriginal groups receiving sockeye allocations. The Squamish Nation’s
allocation is both higher and lower than some of these other groups. Moreover,
the RDG also had to take into account some Aboriginal groups who have limited access
to any fish beyond sockeye. Here, the Squamish Nation has access to a number of
different fish species.
[95]
The Squamish Nation argues that the RDG did not
analyze how the competing claims of others impacts its FSC allocation. However,
fundamentally the RDG made a policy decision, which must take into account a
number of competing factors within the complex nature of fisheries management. In
this regard, the RDG exercised her discretion reasonably by properly taking
account of the competing factors, including the claims of other Aboriginal groups
(Doug Kimoto v Canada (Attorney General), 2011 FCA 291 at para 13).
[96]
It is important to note that nowhere in the statutory
or policy framework is a per capita, numerical, or comparative analysis
mandated, as the Squamish Nation suggests. At most, it is a consideration. But
it is not the only consideration, or the most important consideration. The
framework which guides the Minister’s discretion indicates that the criteria
and indicators for each allocation increase decision will be fluid with the
circumstances.
[97]
This is consistent with the wide scope of the
Minister’s discretion conferred by the DFO Act. The Minister cannot exercise
his discretion by only taking account of a per capita analysis, even if such an
analysis was mandated by the relevant policies. The Minister cannot fetter his
discretion afforded by the statutory framework in favour of criteria which are
designed to guide, but not govern, the Minister’s discretion (Canada
(Citizenship and Immigration) v Thamotharem, 2007 FCA 198 at para 62). The
Minister must take into account all relevant criteria which arise on the facts
of a particular request.
[98]
In doing so, the RDG, and by extension, the
Minister, is owed a great deal of deference in managing the competing issues in
fisheries management. In effect, the Squamish Nation is asking this Court to
amend the policy for allocation increases to focus on a per capita analysis, or
to “to exercise, but in a different way, the discretion
exercised by the Minister in formulating his fishing plan and issuing fishing
licences” (Mainville at para 4). This is not the Court’s role.
[99]
It was a reasonable exercise of the Minister’s
discretion, in relation to the relevant legislation and policies, to consider
not just one type of fish on a per capita basis, but all types of fish among
all Aboriginal groups, in addition to other factors.
(2)
Preferences
[100] The Squamish Nation argues that its right to access other species of
fish or shellfish is irrelevant because for ceremonial, food, and historic
reasons, sockeye is its preferred species of salmon.
[101] The Squamish Nation relies upon R v Jack, [1995] BCJ No 2632
(BCCA) [Jack] to support its position that the Minister was bound to
give effect to their preferences for a certain quantity of sockeye salmon. In Jack,
the claim was that members of certain Aboriginal groups preferred chinook
salmon from the Leiner River, and that an opportunity to harvest other species
of salmon did not satisfy that preference. However, Jack concerned the
prohibition of any fishing for chinook in a specific place (Jack,
at para 65). A prohibition against fishing for sockeye salmon is not the issue
for the Squamish Nation. The issue it raises is the quantity of sockeye
salmon it can fish on the Fraser River.
[102] The Squamish Nation has failed to demonstrate how FSC purposes could
not be served by the existing allocations. Therefore the Squamish Nation’s
preference does not impose a mandate on the government to fulfill that
preference by allocating a particular quantity of sockeye salmon.
[103] Moreover, DFO reasonably considered the Squamish Nation preference
for sockeye salmon. However, DFO also had to consider the fact that “nearly every single First Nation who has access [to] Fraser
sockeye has expressed to DFO that they have a preference for Fraser sockeye
over other salmon species.” This was a concern for DFO and the balance
in the decision between the preferences of all Aboriginal groups does not
render the decision unreasonable.
(3)
Community Needs
[104] The Squamish Nation also claims that there is not enough sockeye salmon
available for the food needs of the community.
[105] These arguments are based upon the Squamish Nation’s position that
there should be a per capita allocation. However, as noted above, a per capita
allocation is not mandated by the relevant policy or statutory framework.
[106] DFO states that the Squamish Nation did not provide a “community food needs study.” This may have been
relevant information to the issue of whether the community food needs were
being met by all fishing activities. No evidence was put forward on this issue.
[107] The RDG considered community needs, and whether the Squamish Nation had
access to a reasonable number of FSC opportunities. To that end, the DFO
increased the Squamish Nation’s sockeye allocation to 30,000, and increased
other FSC opportunities. This demonstrates that the Respondent took the needs
of the Squamish Nation into consideration in reaching its allocation decision.
[108] While the Squamish Nation in this case asked this Court to focus
only on the sockeye salmon allocation, that focus is too narrow. DFO in coming
to the decision in this matter was balancing the Squamish Nation’s asserted
rights and the allocation increase request against competing demands from other
Aboriginal groups for the same species of fish and shellfish. The Respondent is
required to take into account the interests of other groups with FSC rights, and
also conservation concerns. It was not unreasonable for the Respondent to do
so.
D.
Was there a breach of procedural fairness?
[109] The Squamish Nation argues that the decision process breached its
procedural fairness rights. It argues that the RDG failed to consider relevant
information regarding its asserted rights, and failed to follow its own policy
regarding allocation requests. These issues were addressed above where I concluded
that the RDG considered the necessary information and rendered a reasonable
decision within constitutional limits. No procedural fairness issues arise on
these arguments.
[110] The other alleged breach of procedural fairness is the failure of
DFO to notify the Squamish Nation of its consultations with other Aboriginal
groups.
[111] Procedural fairness arguments must be assessed in the context in
which they arise. Here, given the policy-based decision made by DFO, a rigorous
standard of natural justice is not applicable (Jada Fishing Co. Ltd. v
Canada (Minister of Fisheries and Oceans), 2002 FCA 103 at para 16 [Jada]).
[112] Because a lower standard of procedural fairness applies here, the
Squamish Nation has the burden to demonstrate prejudice or possibility of
prejudice (Jada, at paras 16-17).
[113] Here, the Squamish Nation has not provided evidence to demonstrate
that it was prejudiced by the consultation process undertaken by DFO. It knew its
request could have implications for other Aboriginal groups (Jada, at
para 17; Sattar v Canada (Transport), 2016 FC 469 at para 32). In fact,
the Squamish Nation itself indicated that it would consult other Aboriginal
groups directly about its request. While there is no evidence on the record
about the Squamish Nation’s efforts in that regard, broader consultations
regarding competing demands for a limited resource are both reasonable and were
expected by the Squamish Nation. The fact that details of this consultation were
not disclosed as part of the decision was not a breach of procedural fairness.
[114] Overall, I conclude that there were no breaches of procedural
fairness in this process.
VII.
Conclusion and Disposition
[115] I dismiss the application for judicial review. The RDG made a
reasonable decision in a procedurally fair manner which respected any constitutional
limits on her discretion.
[116] The Respondent shall have its costs in accordance with Column III of the Table to Tariff B of the
Federal Courts Rules.
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