Williams v. Canada (Minister of Fisheries and Oceans), 2003 FCT 30

Date: 20030114

Docket: T-173-02

Neutral citation: 2003 FCT 30

BETWEEN:

                                           CHIEF PERCY WILLIAMS on his own behalf

                                               and on behalf of all other members of the

                                                   Kwicksutaineuk/Ah-kwa-mish Tribes

                                                                                                                                                       Applicant

                                                                              - and -

                                      THE MINISTER OF FISHERIES AND OCEANS

                                                 and HERITAGE SALMON LIMITED

                                                                                                                                               Respondents

                                                            REASONS FOR ORDER

ROULEAU J.

INTRODUCTION

[1]                 This is an application for judicial review of a decision of the Minister of Fisheries and Oceans, or his delegate (the "Minister"), dated January 15, 2002, wherein it issued a Marine Mammal Predator Control licence to the Burdwood Island aquaculture site operated by the respondent Heritage Salmon Limited, authorizing the latter to kill seals and sea lions.

FACTS

[2]                 The applicant is the Chief of the Kwicksutaineuk/Ah-kaw-mish Tribes (the "Tribes"). He and most of the Tribes' members reside on Indian Reserves in the vicinity of the aquaculture site at Burdwood Island, British Columbia, operated by the respondent Heritage Salmon Limited. They allege having traditionally hunted, and continue to hunt, seals for food as well as social and ceremonial purposes in the waters in the vicinity of the aquaculture site.

[3]                 The applicant learned on February 25, 2002, that the Minister had issued a Marine Mammal Predator Control Licence (the "Licence") to the respondent Heritage Salmon Limited on January 15, 2002, for its Burwood Island aquaculture operations. The Licence authorizes the respondent corporation to kill, by means of firearms, seals and sea lions that are destroying or attempting to destroy fish being held or reared in sea cages belonging to it ("nuisance seals") for the period of January 1 to December 31, 2002. I was advised at the opening of these proceedings that the Licence had been renewed for another year.

[4]                 The Licence was obtained for an annual fee of five dollars; there is no limit with respect to the killing of seals and sea lions at the Burdwood Island aquaculture site, nor does it require the respondent to use the mammals it kills for food or for any other purpose. It was issued as a "fishing licence" pursuant to sections 4(1) of the Marine Mammal Regulations (SOR/93-56) and 22(1) of the Fishery (General) Regulations (SOR/93-53).

[5]                 The Minister was advised by the Tribes that seals are being destroyed in their traditional territory without them being consulted. In fact, neither the Minister nor the respondent corporation had consulted with the Tribes before the issuance of the Licence.

[6]                 The applicant now brings this application on his behalf and on behalf of all the members of the Tribes challenging the validity of the Minister's decision to issue the Licence to the respondent corporation. He seeks the following relief:

1)          an order for certiorari quashing the Minister's decision and referring the matter back to be decided in accordance with the directions of this Court;

2)          an order declaring that the killing of seals and sea lions as authorized by the Minister's decision is not "fishing" within the meaning of section 4 of the Marine Mammal Regulations and section 22 of the Fishery (General) Regulations;

3)          an order declaring that the killing of seals and sea lions authorized by the Minister's decision can only be properly licensed under section 32 of the Fisheries Act, R.S.C. 1985, c. F-14.

ISSUES

[7]                 The first issue raised in these proceedings is whether the applicant has standing to bring this application for judicial review. If granted standing, it must be determined whether the Minister exceeded the jurisdiction conferred upon it by the Fisheries Act and regulations by deciding to issue the Licence to the respondent corporation authorizing it to kill seals and sea lions.

RELEVANT LEGISLATIVE PROVISIONS

1)          Fisheries Act

s. 2           "fishing" means fishing for, catching or attempting to catch fish by any method;

s. 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;

s. 32         No person shall destroy fish by any means other than fishing except as authorized by the Minister or under regulations made by the Governor in Council under this Act.

s. 43         The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations

(a) for the proper management and control of the sea-coast and inland fisheries;

(b) respecting the conservation and protection of fish;

(c) respecting the catching, loading, landing, handling, transporting, possession and disposal of fish;

[...]

(f) respecting the issue, suspension and cancellation of licences and leases;

(g) respecting the terms and conditions under which a licence and lease may be issued;

2)          Fishery (General) Regulations

s. 22(1)     For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify in a licence any condition that is not inconsistent with these Regulations or any of the Regulations listed in subsection 3(4) and in particular, but not restricting the generality of the foregoing, may specify conditions respecting any of the following matters:

(a) the species and quantities of fish that are permitted to be taken or transported;

s. 33(1)     Subsection (2) applies where a person catches a fish

(a) at a time or place at which the person is prohibited from fishing for that fish;

(b) by a method or with fishing gear that the person is prohibited from using to fish for that fish; or

(c) the possession or retention of which is prohibited.

     (2)       Except where the retention of an incidental catch is expressly authorized by any of the Regulations listed in subsection 3(4), every person who catches a fish incidentally shall forthwith return it

(a) to the place from which it was taken; and

(b) where it is alive, in a manner that causes it the least harm.

3)          Marine Mammal Regulations

s. 3           These Regulations apply in respect of the management and control of

(a) fishing for marine mammals and related activities in Canada or in Canadian fisheries waters;

[...]

s. 4(1)       Subject to subsections (2) and 32(1), the Minister may, on application and payment of the fee set out in column II of an item of the table to this subsection, issue a licence referred to in column I of that item.

TABLE

============================================================

Column 1                                                                      Column II

Item Licence                                                                 Fee

1. Fishing Licence

(a) Beluga                                                                      (a) No charge

(b) Bowhead whale                                    (b) No charge

(c) Cetacean other than beluga,

bowhead whale, narwhal or right whale (c) $5

(d) Narwhal                                                                  (d) No charge

(e) Seal                                                                          (e) $5

(f) Walrus                                                                      (f) $5

2. Seal Fishery Observation Licence                         $25

3. Marine Mammal Transportation Licence            No charge

___________________________________________________________________

(2) A licence to fish for narwhal shall not be issued to a person other than an Inuk.

[...]

5. Subject to section 6, no person shall fish for marine mammals except under the authority of a licence issued under these Regulations or under the Aboriginal Communal Fishing Licences Regulations, SOR/93-336, s. 2.

6.(1) An Indian or Inuk other than a beneficiary may, without a licence, fish for food, social or ceremonial purposes for

(a) seals;

(b) cetaceans, except beluga in the areas described in column I of items 1 to 7 of Schedule II, bowhead whales, right whales and narwhal; and

(c) subject to section 26, four walrus in a year.

7. No person shall disturb a marine mammal except when fishing for marine mammals under the authority of these Regulations.

[...]

10.(1) No person who kills or wounds a marine mammal shall

(a) fail to make a reasonable effort to retrieve it without delay; or

(b) abandon or discard it.

(2) No person who kills a cetacean or walrus shall waste any edible part of it.

ANALYSIS

[8]                 I turn first to the issue of standing. There are two avenues by which an applicant can establish standing in a judicial review application in this court. Subsection 18.1(1) of the Federal Court Act, R.S.C. 1985, c. F-7, allows "anyone directly affected by the matter in respect of which relief is sought" to bring such an application. Further, subsection 18.1(1) is broad enough to authorize the granting of standing whether or not the applicant is "directly affected", where the test for public interest standing is met.

[9]                 Although the applicant states in both the Notice of Application and his sworn affidavit that he and the Tribes reside in the vicinity of the aquaculture site at Burwood Island and that they hunt seals for food, social and ceremonial purposes in that area, he did not adduce any evidence that the Licence has had any detrimental impact on himself and the Tribes' ability to hunt for seals. There are no allegations that the number of seals and sea lions in the area have diminished as a result of the issuance of the Licence, or that the applicant and the Tribes have been unable to hunt sufficient seals and sea lions for their purposes; there is not even any allegation that the issuance of the Licence has made it more difficult for the applicant and the Tribes to hunt seals and sea lions in any manner.

[10]            The applicant alleges in his affidavit that the Tribe members have the aboriginal right to hunt seal for food, social and ceremonial uses in an area that is their traditional territory and where Heritage Salmon Limited has been authorized to kill seals and sea lions; he claims that neither the Minister nor the respondent corporation consulted with the applicant and the Tribes before the issuance of the Licence.

[11]            This issue is completely unrelated to the one raised in the case at bar. Indeed, the applicant is not challenging the validity of the Minister's decision to issue the Licence on grounds that it infringes on their aboriginal right to hunt seals or because the Minister breached its fiduciary duty to consult with the Tribes before issue the Licence. Rather, the applicant challenges the decision on grounds that it is ultra vires the authority conferred upon the Minister by the enabling legislation. Thus, the allegations regarding the issues of aboriginal rights and consultation are of no relevance to the present case and can have no bearing on the question of whether the applicant and the Tribes' members are "directly affected" by the Minister's decision.

[12]            Further, the applicant in his affidavit affirms that the Licence allows the respondent corporation to destroy seals and that this is "disrespectful" to his and the Tribes' culture and way of life. The fact that an activity may be "disrespectful" to one's way of life is not sufficient to establish that one is suffering a direct, adverse impact from such activity such as to bring oneself within the scope of s. 18.1(1) of the Federal Court Act. Many government decisions could be perceived by one group or another as being disrespectful or offensive to their culture of personal characteristics. It would be detrimental, if not devastating, to our justice system if applicants were allowed to overburden the courts as a result of the unnecessary proliferation of frivolous suits brought by individuals, however well-intentioned they are. It would also result in having non-justiciable issues brought before the courts. Clearly, this was not Parliament's intention in including the words "directly affected" in subsection 18.1(1) of the Federal Court Act.

[13]            In light of the foregoing, I am satisfied that no evidence has been adduced by the applicant demonstrating that he and the Tribe members he represents are directly affected by the Minister's decision to issue the Licence to the respondent corporation. Has the applicant established that he has public interest standing to bring the present application before this Court?

[14]            In Harris v. Canada, [2002] 4 F.C. 37 (F.C.A.), the Federal Court of Appeal wrote that an applicant should be granted public interest standing to challenge the limits of administrative authority, purported to be exercised in accordance with statutory delegation, once the Court has weighed three factors: (1) a strong public interest issue raised before the court; (2) the applicant has a genuine interest in that issue or the outcome of the litigation; (3) there is an absence of other reasonable and effective means of bringing the issue forward for resolution.

[15]            I have no difficulty finding that the issue raised in these proceedings is of public importance since the Court's decision will not necessarily be limited to the facts of the present case. The issue relates to the scope of the Minister's constitutional fisheries power and how the Minister exercises the authority conferred upon it by the fisheries legislation; the outcome of the litigation will also undoubtedly affect other licence holders authorized to kill nuisance seals.

[16]            While a public interest applicant need not prove that the alleged illegality of an administrative decision or act has caused or will cause harm to establish the seriousness of the issue raised, there seems to be authority to the effect that the Court must consider the overall strength of an applicant's claim in making that determination. In Sierra Club, supra, Evans J. (as he then was) spoke about the existence of a serious issue in the following terms at page 232:

It seems now to be settled law that the seriousness of the issues raised by a public interest applicant encompasses both the importance of the issues and the likelihood of their being resolved in favour of the applicant. Given the discretionary nature of public interest standing, and its concern to ensure that scarce public resources are not squandered and other litigants are not subjected to further delay, it seems appropriate that the merits of the claim should be taken into consideration: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; Hy and Zel's Inc. v. Ontario (Attorney General); [1993] 3 S.C.R. 675=">Paul Magder Furs Ltd. v. Ontario (Attorney General), [1993] 3 S.C.R. 675. [emphasis added]

[17]            From the foregoing, it would appear that a court should subject the strength of an applicant's claim to a level of scrutiny that probes more deeply than merely considering whether the applicant has a fairly arguable case. Indeed, one should determine whether the applicant is likely to be successful on the merits on the application for judicial review in order that it be granted standing.

[18]            I note there is authority in the case law to support the proposition that an applicant need only demonstrate that he has a fairly arguable case to establish that his application raises a serious issue. In Canadian Council of Churches v. Canada (Minister of Finance), [1992] 1 S.C.R. 236, Cory J., referring to the Supreme Court of Canada's decision in Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, stated at page 253 that "the issues of standing and of whether there is a reasonable cause of action are closely related and indeed tend to merge".

[19]            I am satisfied that the applicant in the present case falls short of establishing that he has a reasonable cause of action or a fairly arguable case, such that he should be granted public interest standing.

[20]            Simply put, the applicant's case is this: The Minister issued the Licence to the respondent corporation authorizing it to kill, by means of firearms, seals and sea lions that are destroying or attempting to destroy fish being held or reared in sea cages. The Licence, which was issued pursuant to sections 4(1) of the Marine Mammal Regulations and 22(1) of the Fishery (General) Regulations as a "fishing licence", does not require the respondent to use the mammals it kills for food or for any other purpose. The applicant argues that common law authority and the rules of statutory interpretation indicate that the destruction of predator seals and sea lions as authorized by the Licence does not fall within the statutory meaning of "fishing" under the Fisheries Act as it lacks the requisite element of "use or exploitation" of fish caught. Rather, it is "destruction of fish by means other than fishing" and must be authorized under section 32 of the Fisheries Act and any authorization under that provision must however be preceded by an environmental impact assessment. Thus, by issuing the Licence as a "fishing licence" under sections 4(1) of the Marine Mammal Regulations and 22(1) of the Fishery (General) Regulations without first conducting a full environmental impact assessment, the Minister exceeded its jurisdiction, and his decision is ultra vires.

[21]            There are many fundamental flaws with the applicant's case. First, his proposition that "fishing" requires some sort of unspecified "use" or "exploitation" of fish caught is neither supported by the legislative purposes of the Fisheries Act, the basic rules of statutory construction, the case law or common sense.

[22]            The term "fishing" is defined in section 2 of the Fisheries Act as "fishing for, catching or attempting to catch fish by any method". The applicant's narrow interpretation of this term is not supported by the grammatical or textual construction of the Act as a whole. The definition of that term makes no reference to a requirement that the fish caught be "used" or "exploited" in any way, it is restricted to the physical act of catching fish (or taking possession thereof). Indeed, the existing regulations (see, for example, section 33 of the Fisheries (General) Regulations) and legislative scheme allow for and even require release of the fish caught in some circumstances, thereby making the "use" or "exploitation" of the fish caught not only irrelevant, but prohibited in some circumstances.

[23]            The applicant's argument is almost entirely based on the proposition that the term "fishing" under the Act must be interpreted based on his erroneous interpretation of the case law dealing with the meaning of "fishery" - a different term. In my view, those cases are irrelevant and unhelpful. The applicant makes no reference to the numerous decisions defining the meaning of "fishing" which make it clear that there is no requirement of "use" or "exploitation" and that the act of fishing is complete once possession of the fish is obtained: see for example Fredrick Gerring Jr. (The) v. R. (1897), 27 S.C.R. 271; R. v. Skinner, [1997] N.J. No. 20 (QL) (Nfld. C.A.); R. v. Kelley, [1996] N.S.J. No. 161 (QL) (N.S. Prov. Ct.); R. v. Saunders (1989), 92 N.S.R. (2d) 328 (Co.Ct.). What all these cases implicitly say is that whatever happens to the fish after it has been reduced to actual possession is irrelevant.

[24]            The applicant submits that since the purpose of the Act and its regulations is protection and conservation of fisheries, the definition of "fishing" must be restricted to those fishing activities that incorporate or require some unspecified "use" or "exploitation" of fish. In my view, counsel for the applicant misunderstands the purposes of the Act and regulations which were clearly set out by the Supreme Court of Canada in Ward v. Canada, [2002] S.C.J. No. 21. Writing for a unanimous Court, McLachlin C.J. stated the following at para. 41:

These cases put beyond doubt that the fisheries power includes not only conservation and protection, but also the general "regulation" of the fisheries, including their management and control. They recognize that "fisheries" under s. 91(12) of the Constitution Act, 1867 refers to the fisheries as a resource; "a source of national or provincial wealth" (Robertson, supra, at p. 121); "a common property resource" to be managed for the good of all Canadians (Comeau's Sea Foods, supra, at para. 37). The fisheries resource includes the animals that inhabit the seas. But it also embraces commercial and economic interests, aboriginal rights and interests, and the public interest in sport and recreation.. [emphasis added]

[25]            The absurdity of the applicant's position can be easily noted. Indeed, there are many examples of activities where fish are caught but not put to any use whatsoever. Two obvious examples are sport and recreational fishing. While some fish caught in these exercises may be put to some use or exploited (for example through consumption), it is also clear that many are simply released. Does that mean that one will not be "fishing" because he or she feels like throwing the fish back, while he or she will only be "fishing" if he or she decides to consume it or put it to some use? By excluding those fishing activities that do not require some sort of "use" or "exploitation" of the fish caught, the applicant's argument fails to consider and appreciate the multiple objectives served by the legislation, which include not only conservation, but also economic and recreational interests and objectives.

[26]            The applicant submits that the Minister may only authorize the "destruction of fish by means other than fishing" under section 32 of the Fisheries Act, which requires an environmental impact assessment be completed prior to the Minister being authorized to issue a licence to carry on such an activity: see Law List Regulations, SOR./94-363, Sch. I. The applicant's argument fails to consider that the activity authorized by the Licence in the case at bar falls outside the scope of application of section 32 of the Fisheries Act. Indeed, the case law is clear to the effect that the prohibition contained in that provision are intended for the construction of projects and their operation which could result in the destruction of fish or damage to fish habitat: see for example Lavoie v. Canada (Minister of the Environment) (2000), 190 F.T.R. 181 (F.C.T.D.); Lavoie v. Canada (Minister of the Environment) (1999), 168 F.T.R. 82 (F.C.T.D.). There is no such project or operation intended in the case at bar.

[27]            If the applicant's position was accepted much of the sport and recreational "fishing" activities, as well as the activity of killing nuisance seals for the purposes of protecting endangered fish stocks, could not be licenced by way of "fishing licences" but would have to be authorized, presumably on a case-by-case basis, by the Minister under s. 32 of the Act. Each such authorization would also have to be subject to an environmental impact assessment. Accepting the applicant's argument, then the definition of "fishing" would prevent the taking of any conservation measures that require elimination or destruction of elements harmful to the fisheries resource. In my view, the legislative goals of conservation and protection require in some circumstances the taking of immediate measures to control or eliminate an element harmful to the fishery or fish stocks.

[28]            Clearly, many activities are "fishing" and can be authorized without first conducting an environmental impact assessment. It is noteworthy that the applicant has put forth no evidence of any detrimental impact, or concern regarding such impact; that the killing of seals pursuant to the Licence may have or has had on the environment or the fishery resources. In my view, the fundamental premise of the applicant's case challenging the validity of the Minister's decision to issue the Licence - that the Licence is not a "fishing licence" because it does not contemplate or require the seals killed to be put to some use or exploitation - is fundamentally flawed. I am not satisfied that this is a serious issue warranting the consideration and resources of the Court.

[29]            Accordingly, I refuse to grant public interest standing to the applicant and dismiss this application for judicial review.

[30]            No submissions having been offered by counsel for the respondent, I make no order as to costs.

(Sgd.) "P. Rouleau"

Judge

Vancouver, B.C.

January 14, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-173-02

STYLE OF CAUSE: Chief Percy Williams et al. v. The Minister of Fisheries and Oceans et al.

PLACE OF HEARING:                                   Vancouver, B.C.

DATE OF HEARING:                                     January 8, 2003

REASONS FOR ORDER:                              Rouleau J.

DATED:                      January 14, 2003

APPEARANCES:

Mr. Eamon Murphy                                              for Applicant

Mr. R.S. Whittaker                                               for Respondent

Ms. M. Bulmer                                                     Minister of Fisheries and Oceans

Mr. Jeffrey Oliver                                                 for Respondent

Heritage Salmon Limited

SOLICITORS OF RECORD:

Woodward & Company                                                   for Applicant

Victoria, B.C.

Morris Rosenberg                                                 for Respondent

Deputy Attorney General of Canada                   Minister of Fisheries and Oceans

Blake Cassels & Graydon LLP                                        for Respondent

Vancouver, B.C.                                                  Heritage Salmon Limited