Date:
20061018
Docket:
T-777-05
Montréal, Quebec, October 18, 2006
Present: THE HONOURABLE Mr. Justice
Martineau
BETWEEN:
ASSOCIATION
DES CRABIERS ACADIENS,
duly
incorporated in accordance with the laws
of
the province of New Brunswick,
and
ASSOCIATION
DES CRABIERS GASPÉSIENS,
duly
registered in accordance with the laws
of
the province of Quebec
and
ASSOCIATION
DES CRABIERS DE LA BAIE,
duly
registered in accordance with the laws
of
the province of Quebec
Applicants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
Following
the adoption by the Minister of Fisheries and Oceans Canada (the Minister) of a Snow Crab
Management Plan (the
fishery resource) for
the year 2005 for the southern Gulf of St. Lawrence, the applicants asked this Court to
declare that the Minister acted without authority or exceeded his
authority when he:
a) Set
aside a 480 metric ton (mt) allocation of the total authorized capture (TAC) of the fishery
resource for the year 2005 to finance activities of the Department of Fisheries
and Oceans Canada (DFO) (the
first issue);
b) Imposed on each holder of a
snow crab fishing licence in the crab fishing areas (CFA) 12, 18, 25 and 26 a
requirement to install in 2005 in their boat a Vessel Monitoring System (VMS) (the second issue).
[2]
This
application for judicial review is granted in part. As to the first issue, for
the reasons given in relation to the judgment delivered this day in Docket
T-775-05, Association des crabiers acadiens inc. et al. v. Procureur général du
Canada, 2006
FC 1241, I am of the opinion that the Minister has exceeded his authority when
he set aside a 480 mt allocation of the TAC for 2005 in order to finance activities of the DFO. As to the
second issue, for the following reasons, I hold that the decision of the
Minister to impose on crab fishermen a requirement to install in their boats a
VMS was not frivolous nor arbitrary, or otherwise patently unreasonable, as per
the standard of review applicable herein (Comeau’s Sea Foods Ltd. v. Canada
(Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12, at
paragraph 36; Tucker v. Canada (Minister of Fisheries and Oceans),
(2001) 288 N.R. 10, 2001 FCA 384, at paragraph 2, confirming (2000), 197
F.T.R. 66; Fennelly v. Canada (A.G.), 2005 FC 1291, at
paragraph 21; Recherches Marines Inc. v. Canada (A.G.), 2005 FC
1287, at paragraph 17; Area Twenty Three Snow Crab Fisher’s Association
v. Canada (Attorney General), 2005 FC 1190, at paragraph 22).
[3]
The VMS –
in the vernacular, fishermen use the term "black boxes" – is an aid
to navigation system that is used to follow the movements of a navigating ship.
It makes it possible to locate, instantaneously, one or more boats on the
water. The VMS is useful to regulate the traffic and to avoid collisions
between ships. In this sense, since it is a navigation tool, at first sight,
the imposition of a requirement to install the VMS is within the authority of
the Minister of Transport under the relevant provisions of the Canada Shipping Act, 2001, S.C. 2001, c. 26. Be that as
it may, that finding is not determinative of this application.
[4]
In this
case, the Minister is responsible for the proper management and control of the sea‑coast
and inland fisheries
under the Fisheries Act, R.S.C. 1985, c. F-14 (the Act). Now, the
applicants submitted that, under the Act, no regulations have been made that
authorize the Minister to impose on licence holders the obligation to install
black boxes for the purposes of proper management and control of fisheries. On the contrary, the
respondent submitted that the Minister has the authority, under section 7 of
the Act, to issue fisheries licences and that paragraph 22(1)l) of the Fishery (General)
Regulations), SOR/93-53 (the Regulations) authorizes
him to specify
in a licence any condition respecting "information that the master of the vessel shall report to
the Department from sea, including the method by which, the times at which and
the person to whom the report is to be made".
[5]
In this
case, I am of the view that, if I give paragraph 22(1)l) of the
Regulations a broad and liberal interpretation, as I have to, I may hold that
that provision does allow the Minister to specify on a fisheries licence that
the licence holder is required to install a "black box" on his ship
if, of course, that condition is required for "the proper management
and control of fisheries and the conservation and protection of fish", as provided for in the
introductory passage of subsection 22(1) of the Regulations.
[6]
In this
respect, I note that the expert of the applicants was of the opinion that the
VMS was not a very efficient control tool (since it does not have any visual
device, like a camera, that would enable the MFO to use that system to verify
and prove that a ship is engaged in illegal fishing or is violating any
fisheries regulations). The expert of the applicants was also of the opinion
that the VMS would not provide additional data contributing to scientific
research (since under the regulations made by the MFO, each fisherman is
already under a requirement to keep a log book). In addition, although there
certainly are more efficient control methods (one could imagine a transmission
apparatus installed in each creel left under water), the respondent submitted
that this Court does not have to rule on this question; indeed, at the hearing,
respondent’s counsel suggested that those alternative methods may not be
technically perfected or may be too costly to be imposed today on crab
fishermen.
[7]
With
respect to the discretion of the Minister to develop policies relating to the proper management and
control of fisheries or to his discretion to issue fisheries licences under the
conditions that he deems appropriate, in either case, he is bound to act in good faith and he
must be guided by relevant considerations, while abiding by the rules of
procedural fairness (Comeau, supra, at pages 25-26). That is the
case here.
[8]
Indeed,
according to the documentary evidence, it appears that a number of
consultations had been held with the snow crab industry before the black box
requirement was announced. In this respect, the Minister concluded that the VMS
would enable him "to enhance its fisheries surveillance and enforcement capabilities
(aerial surveillance, at-sea patrol, and deployment of at‑sea observers)
and make a considerable contribution to the overall management of the snow crab
fishery, while providing additional data in support of science research". I am of the view that the
intervention of this Court is not warranted in this case.
[9]
It is not
for me to rule on the efficiency of the method chosen in this case by the
Minister. Indeed, in this application for judicial review, it is not the
province of this Court to dictate to the Minister what is more appropriate, nor
to substitute my personal view for that of the Minister in the assessment and
the selection of measures by him in relation to the achievement of the
objectives sought and the objects of the Act and of the Regulations. It is
sufficient that the discretionary policy decision made here by the Minister
reflect the objects of the Act and of the Regulations and that it be based on
relevant considerations. That is the case here. Indeed, the decision by the
Minister to impose the installation of a VMS does not appear to me frivolous nor
arbitrary, nor otherwise patently unreasonable in the circumstances.
[10]
Given the
mixed outcome of this proceeding, in my discretion, I will not award costs to
the applicants or to the respondent.
ORDER
THIS COURT DECLARES AND
ORDERS :
1.
This
application for judicial review is granted in part;
2.
The
Minister exceeded his authority when he set aside a 480 mt allocation of the TAC for 2005 to
finance activities of the DFO;
3.
The
Minister has the authority to impose on each holder of a snow crab fishing
licence in the crab fishing areas (CFA) 12, 18, 25 and 26 a requirement to
install in their boat a VMS;
4.
No costs
will be awarded.
« Luc
Martineau »
Certified
true translation
François
Brunet, LL.B., B.C.L.
COUR FÉDÉRALE
AVOCATS INSCRITS AU DOSSIER
DOCKET: T-777-05
STYLE OF CAUSE: ASSOCIATION DES CRABIERS
ACADIENS, duly
incorporated
in accordance with the laws of the province of
New Brunswick,
ASSOCIATION DES CRABIERS
GASPÉSIENS,
duly registered in accordance
with the laws of the province of Quebec and
ASSOCIATION DES CRABIERS DE LA
BAIE,
duly registered in accordance
with the laws of the province of Quebec
PLACE OF
HEARING: Fredericton,
New Brunswick
DATE OF
HEARING: October 4, 2006
REASONS
FOR ORDER
AND
ORDER: The
Honourable Mr. Justice Martineau
DATED:
October 18, 2006
APPEARANCES:
Brigitte Sivret FOR
THE APPLICANTS
Dominique Gallant FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Brigitte Sivret FOR
THE APPLICANTS
Barrister & Solicitor
Bathurst, New Brunswick
John H. Sims, Q.C. FOR
THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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