Area Twenty Three Snow Crab Fisher's Association v. Canada (Attorney General), 2005 FC 1190

Date: 20050831

Docket: T-1187-04

Citation: 2005 FC 1190

Ottawa, Ontario, this 31^st day of August, 2005

Present:           THE HONOURABLE MR. JUSTICE MOSLEY                           

BETWEEN:

AREA TWENTY THREE SNOW CRAB FISHER'S ASSOCIATION,

a Society created under the laws of the Province of Nova Scotia and

MILLBROOK MI'KMAQ FIRST NATION, of Truro Nova Scotia and

GORDON MACDONALD of Sydney, Cape Breton and ADRIAN GLOADE

of Millbrook Mi'kmaq First Nation and TIMOTHY BAGNELL of

Louisburg, Cape Breton and JASON CARTER of Sydney, Cape Breton and

PAUL K. CORMIER of New Waterford, Cape Breton and GARY DRAKE

of Louisburg, Cape Breton and GARY HATCHER of Gabarus, Cape Breton and

GEORGE LEMOINE of Sydney, Cape Breton and GRAHAM MACCUSPIC

of Grand River, Cape Breton and ROBERT MACLEAN of Louisburg,

Cape Breton and ARTHUR HUTT of Louisburg, Cape Breton and

RALPH RAFUSE of Fourchu, Cape Breton and JOHN HUGH CAMPBELL

of Louisburg, Cape Breton and JAMES R. DEVRIES of Louisburg,

Cape Breton and DANNY MUNDEN of Glace Bay, Cape Breton and

DWAYNE STUART of Cape Breton and ERIC TRIMM of Louisburg,

Cape Breton and ROBERT TRUCKAIT of Glace Bay, Cape Breton

                                                                                                                                           Applicants

                                                                           and

                                    THE ATTORNEY GENERAL OF CANADA AND

MINISTER OF FISHERIES AND OCEANS

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision by the Minister of Fisheries and Oceans (the "Minister"), announced May 20, 2004, to reduce the total allowable catch ("TAC") for the snow crab fishery in Eastern Nova Scotia by 10%. The fishery is concentrated in five Crab Fishing Areas ("CFAs 20 - 24") extending from Cape North to Halifax. This application relates to CFA 23 only.

[2]                The applicants, long-term holders of licenses to fish in CFA 23 and thus described as members of the "permanent fleet", challenge the Minister's decision respecting the sharing of the 10% reduction between their catch and that to be taken by the "temporary fleet". Further, the applicants challenge the imposition of license conditions preventing them from fishing in every part of CFA 23, particularly an area known as the "slope edge".

[3]                The applicants brought this application to quash the decision and to seek orders in the nature of mandamus to compel the Minister to abide by prior exercises of discretion with respect to the allocation of the catch and the fishing area. The hearing took place in May 2005 long after the close of the 2004 snow crab fishery. The background will be described in some detail to explain why the applicants feel aggrieved by the Minister's decision. Nonetheless, I have concluded that the application is moot and the relief sought cannot be granted for the reasons set out below.

Background

Integrated Fishery Management Plans

[4]                In recent years, the Department of Fisheries and Oceans ("DFO") has promoted the principle of co-management with members of regulated fisheries. One tool in this approach has been Integrated Fishery Management Plans ( "IFMP") described in a January 1999 document called "Framework and Guidelines for Implementing the Co-Management Approach".

[5]                In 2000, a three-year IFMP was devised to apply to all CFAs in Eastern Nova Scotia. One of the elements of the IFMP was that historical fishing patterns were not to restrict the permanent fleet from fishing anywhere within their respective CFA's.

[6]                Following discussions with the fishing industry in 2002-2003, the aim of which was to develop a long term IFMP, no consensus was reached and in 2003 the Minister announced a one year extension of the 2000-2002 IFMP. In 2004, again no consensus was reached and the IFMP was carried over for another year.

[7]                Under the heading "Sharing Formula" the IFMP for CFA 23 provides, among other things:

To complete the multi-year management plan, negotiations between the CFAs 23-24 fishers, temporary fisher representatives and DFO attempted to produce sharing agreements. The issues considered during the development of the plan are as follows: [...]

- Fleet long-term viability is of prime importance.

- Historical fishing patterns are not to be used to restrict permanent fleet.

- The permanent fleet is allowed to fish anywhere in the CFA.

Although numerous discussions were held a single sharing formula acceptable to all was not developed. Therefore the Department has selected the following sharing formula which balances the needs of the permanent fleet with the desire to help economically affected communities.

Scientific surveys and the slope area

[8]                In 1997, the Permanent Fleet initiated an annual trawl survey to study snow crab stocks. Based on the results of this survey, in 1998 and 1999, temporary sharing in the snow crab fishery in Eastern Nova Scotia was allowed, bringing in a number of new temporary licensees. In 2004-2005 there were 326 temporary licensees.

[9]                In 2000, a DFO/industry trap survey was undertaken to determine the distribution of crab along the slope edge. This survey continued into 2001 and 2002 with a limited number of fishers holding experimental licenses allowing them to fish on the slope edge. In 2003 the trawl survey was expanded to include the slope edge of CFA 23 for scientific assessment.

[10]            In the same announcement dealing with the 10% reduction in TAC on May 20, 2004, the Minister announced that the trap survey begun in 2001 on the slope edge would continue. However, there was no specific mention of how this would have an impact on the right of fishers to fish the slope edge.

Total Allowable Catches

[11]            In 2000 the base amount of the TAC allocated to the Permanent Fleet was set at 800 tonnes. Above that base, the proportion of the TAC allocated to the Temporary Fleet increases as the TAC increases until beyond a specific threshold (3,000 tonnes in 2000). 90% of the TAC, or nine out of ten lbs of quota, is allocated to the Temporary Fleet. Beginning in 2000, and continuing until 2004, the TAC was set above the threshold beyond which 90% was allocated to the Temporary Fleet.

[12]            In 2002, the Minister purchased 13 temporary licenses back from the Temporary Fleet and created 13 new permanent licenses for First Nations members (also referred to as Marshall Licenses), expanding the size of the Permanent Fleet from 24 licenses to 37 licenses or by 54% . There were no communications with the Permanent Fleet regarding the impact of an increase in licenses on the TAC available to the Permanent Fleet.   

[13]            In a March 2004 statement, the Minister indicated that the split between the permanent and temporary fleets would be the same as it had been in 2003.

[14]            In the May 20, 2004 announcement, the TAC was decreased by 10% from 2003 levels or by about 477 tonnes. The Minister announced another rollover of the 2000 IFMP for the 2004 season and conditions were imposed on snow crab licenses prohibiting fishing on the slope edge of CFA 23 to avoid interference with the trap survey there.

[15]            The Minister allocated 39% of the anticipated decrease in the TAC for 2004 to the Permanent Fleet and 61% to the Temporary Fleet. The applicants argue that as 90% of the TAC above the 3000 ton threshold is allocated to the Temporary Fleet, so too should have been their share of the reduction. The Respondent claims the 39% / 61% allocations of the decrease are the same as the 10% / 90% allocations, but adjusted to account for the 13 new permanent First Nations licenses issued.

[16]            The Court was advised during the hearing that the practical effect of this allocation of the reduction was a loss in the value of the catch for each applicant amounting to about $26, 000.

The standard of review

[17]            As stated by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at para. 26, the central inquiry in the standard of review analysis is determining the degree to which Parliament intended the administrative decision under review to be subject to judicial scrutiny.

[18]            The Minister's exercise of discretion in respect of the issue of fishing licences is pursuant to section 7 of the Fisheries Act, R.S. 1985, c.F-14. Subsection 7 provides:

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. [...]

___________________________

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. [...]

[19]            The words of section 7 place no restrictions on the Minister in the exercise of his discretion. Indeed, the provision includes the term "absolute" discretion, which I interpret to be a signal of Parliament's intention that the Court should grant significant deference to the Minister. The Minister has expertise with respect to the issuance of fishing licences: Tucker v. Canada (Minister of Fisheries and Oceans) (2000), 197 F.T.R. 66 (T.D.).

[20]            In exercising his duties, the Minister is charged with the management of the fishery and conservation. In Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12 at para. 37, Major J. stated:

This interpretation of the breadth of the Minister's discretion is consonant with the overall policy of the Fisheries Act. 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). Licensing is a tool in the arsenal of powers available to the Minister under the Fisheries Act to manage fisheries. It restricts the entry into the commercial fishery, it limits the numbers of fishermen, vessels, gear and other aspects of commercial fishery

[21]            These are polycentric considerations requiring the Minister to take a wide variety of interests into account, as opposed to ones in which the government is the singular antagonist of the individual. Finally, the decision to issue a fishing licence is not one of precedential importance.

[22]            All these considerations indicate that the standard of review of the exercise of the Minister's discretion under section 7 of the Fisheries Act is patent unreasonableness. In Voice Construction Ltd. v. C.G.W.U., Local 92 [2004] 1 S.C.R. 609 at para.18, the Supreme Court said that to be patently unreasonable, the decision must be so clearly wrong that "the result must almost border on the absurd."

[23]            Furthermore, the respondent submits that as this is a discretionary decision of a Minister, the principle in [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at 3 should apply: a Minister's policy decision should not be reviewable unless bad faith, non-conformity with the principles of natural justice (where required by statute) and reliance on extraneous factors can be demonstrated by the Applicants.

[24]            The applicants contend that the Minister's decision in this case was driven less by policy considerations than by operational requirements and should, therefore, not be governed by the Maple Lodge Farms test. The Minister entered into the operational arena with the IFMP and related joint project agreements, the applicants argue, and the decisions to allocate the TAC reduction and restrict access to the slope edge should be reviewable on a broader basis.

[25]            I am not persuaded that the decision to impose a reduction in the TAC for 2004-05 and the allocation of the share of that reduction between the permanent and temporary fleets was anything other than a policy decision. Accordingly, in order for the Court to review that decision on its merits, the applicants must demonstrate that the Minister exercised bad faith, denied them procedural fairness or relied predominantly on extraneous or irrelevant factors in making the decision. The decision about access to the slope edge appears to have been made to protect the trap survey in that area. It would be reviewable, in my view, on the standard of patent unreasonableness. However, as I will discuss below, the decision is moot and its merits will not be addressed in these reasons.

The question of mootness

[26]            As a preliminary issue, the respondent submits that the doctrine of mootness dictates that the Courts should not hear cases that cannot resolve a live controversy affecting the rights of the parties unless it is in the interest of justice to do so: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. The Court must consider three criteria in deciding whether or not to exercise its discretion to hear a moot case: 1) the presence of an adversarial context, 2) the concern for judicial economy and 3) the need for the court to be sensitive to its role as the adjudicative branch of our political framework. The respondent submits that none of these exceptions apply.

Analysis

[27]            The relief sought in the application before the Court includes orders quashing the Minister's May 2004 decision and the imposition of the license conditions restricting access to the slope edge, and orders of mandamus requiring the Minister to abide by the terms of the IFMP in regard to access and to sharing of the TAC.

[28]            As noted above, the 2004-05 season was over when this application was heard. In oral submissions, counsel for the applicants conceded that there was no longer any basis upon which an order in the nature of mandamus could be issued. Counsel argues, however, that it would remain appropriate for the Court to issue declarations, based on its review of the 2004 decision, to guide the exercise of the Minister's discretion in the future.

[29]            Respondents' counsel characterized this as asking the Court to express its opinion on the issues framed by the applicants for future use should the same conditions arise: in effect, a request for a private reference. As no declaration was requested as a remedy in the Notice of Application, no such remedy should be available: Rule 301(e); Schut v. Canada (A.G.), (2000), 186 F.T.R. 212 (T.D.).

[30]            In Borowski, supra, Justice Sopinka wrote at paras. 15 and 16:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.

The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.

[31]            I am satisfied that there is no present live controversy affecting the rights of the applicants with respect to the 2004-05 fishing season. Accordingly, the case is moot. The question then is whether the Court should exercise its discretion to address the issues raised by the applicants notwithstanding that they are currently moot.

[32]            The decision to restrict access to the slope edge was said to be based on the need to maintain the trap survey in 2004 to determine the strength of the stock in that location. There was no evidence before me to indicate that the same trap survey would be continued in the next or subsequent seasons. Nor was there any evidence that the license restrictions blocking access to the slope edge would be continued for that or for any other reason. Accordingly, I am satisfied that the criteria described by Justice Sopinka for determining whether a moot issue should be addressed have not been met. The Court should not exercise its discretion to review the imposition of the license conditions restricting access to the slope edge as any future controversy in that respect is entirely hypothetical.

[33]            However, it is arguable that the quota reduction sharing formula will apply in future years, unless the stakeholders are able to come to an agreement on a new IFMP. Since the Minister's position is that the new sharing formula is a logical extension of the IFMP formula that had been rolled over for the prior two years, it seems unlikely that the Minister will change the new formula again unless additional new permanent licences are created. To that extent, there is some merit to the applicants' argument that there remains an adversarial context between the parties that needs to be addressed.

[34]            At paragraph 34 in Borowski, supra, Justice Sopinka noted that the concern for judicial economy as a factor in the decision not to hear moot cases will be answered if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it. I am sympathetic to the applicants' argument that the exigencies of the judicial review process mean that it would be practically impossible to hear an application respecting the crab fishery quota in any given year before the issue had become moot. The questions raised by the applicants might otherwise evade review if the Court was to decline to hear them.

[35]            Accordingly, I think it appropriate to consider, notwithstanding my conclusion that the application is moot, whether there are any grounds to declare that the decision to allocate the TAC reduction on a 39%/61% basis was made in error.

Was there a legitimate expectation on the part of the Applicants that the allocations would remain the same for the 2004 season?

[36]            The applicants claim that it was reasonable for them to expect that the IFMP would be maintained for the 2004 fishing season and that the 10% / 90% formula would apply to any reduction of the TAC for that season, based on statements made prior to the announcement of the decision by DFO staff. They claim that these statements were made by key DFO staff members who had significant input into most decisions regarding the snow crab fishery in Eastern Nova Scotia. Applying the Carltona principle, Carltona Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 (C.A.), these statements should be attributable to the Minister.

[37]            It appears that the Minister and his staff made consistent representations to the Permanent Fleet in the first five months of 2004 leading up to the decision of May 20, 2004. The Minister affirmed in his press release of March 25, 2004 that the existing arrangements would be maintained for another year. The applicants claim that they were also told by a DFO official at a meeting on February 26, 2004, that the 2000 IFMP would likely be rolled over for one more year and again at a March 23-24, 2004 meeting, that the 2000 IFMP would probably be rolled over and the 90% / 10% formula would govern for another year [my underlining].

[38]            The Applicants submit that an agreement or undertaking to consult can be implied from a course of dealings. In this case, there was a course of dealings between the Minister and the Applicants every year the 2000 IFMP was in operation including the meetings of March 23-24, 2004 regarding stock status and the April 19, 2004 meetings regarding the scientific trap survey on the slope edge in 2004. It was only when the Minister chose to change the formula that the Minister and his officials decided not to consult.

[39]            The Applicants submit the Minister was obligated to at least consult with the fishing industry as he had in the past before making the decision to allocate the reduction on a different basis: Old St. Boniface Residents Assn v. Winnipeg (City), [1990] 3 S.C.R. 1170.

[40]            The Respondent submits that the decision at issue here is a policy decision and that statements by departmental officials are not binding or enforceable on the Minister. The decision is discretionary, in the nature of a legislative act and is only reviewable on certiorari on grounds of statutory compliance and good faith. Policy decisions are no more than directions that are unenforceable by members of the public. Parliament intended the Minister to have a great deal of freedom in his decision making and the courts should only intervene if his decisions are clearly beyond what is permitted by the Fisheries Act. It is not the Court's role to question the Minister's judgment unless his decision is based predominantly on irrelevant factors: Tucker v. Canada (2000), 197 F.T.R. 66 (F.C.).

[41]            The doctrine of legitimate expectation is an extension of the rules of natural justice and procedural fairness. In Old St. Boniface the Supreme Court said this at paragraph 74:

It affords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity. The court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation.

[42]            While the Applicant characterizes the yearly IFMP as the result of on-going consultations between DFO and stakeholders, it would be more appropriate in my view to think of it as the default or fall-back position. When no new IFMP was agreed to, the Minister unilaterally decided to roll it over. I think the Minister could just as legitimately have decided not to roll it over, and to set up a new policy framework. The IFMP would not have been repeatedly rolled over if DFO and the industry had been able to reach a new IFMP agreement. In any case, the IFMP is not binding on the parties.

[43]            As in Atlantic Coast Scallop Fisherman's Association v. Canada (1996), 116 F.T.R. 81 (T.D.) case, there was no agreement or undertaking made that the IFMP conditions would remain exactly as they had been. The press release of March 25, 2004 was not an agreement or undertaking, nor were the oral representations made by officials agreements or undertakings.

[44]            I have no doubt that the applicants would have objected to the allocation of the reduction, had they been consulted upon the decision before it was made. But they had no established rights that would be affected by the decision. The applicants had no right to the issuance of fishing licenses for CFA 23 in 2004 on precisely the same terms as they had been issued previously. A fishing licence is merely a privilege to participate in a fishery for the duration of the licence: Radil Bros. Fishing Co.v.Canada (Minister of Fisheries and Oceans) et al (2000), 197 F.T.R. 169 (T.D.).

[45]            The decision to reduce the TAC in the interests of preserving the stock and the allocation of that reduction was, in my view, entirely within the discretion of the Minister to make without first consulting the applicants.

[46]            In Canadian Association of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247 (F.C.A.) it was held that the principles of natural justice may apply to individual decisions respecting quotas but not the setting of a quota policy. The Court of Appeal in that case stated that the Minister could have been more considerate and given the respondents notice and an opportunity to be heard, but this was not a requirement. Similarly, while it may have been preferable for consultation to have taken place in this instance, I find that the Minister had no duty to consult before altering the distribution of quota cuts.

Does Public Promissory Estoppel arise in this case?

[47]            The Applicants assert that all of the elements of public promissory estoppel have been met in this case because they relied on the unambiguous assurances of the Minister and his staff and in doing so changed their position to their own detriment.

[48]            There is no evidence that the fishers in this case changed their position to their detriment because of the prior assurances of the Minister. The applicants' affidavit evidence establishes only that they understood the TAC would remain the same and that they did not make as much money as they would have had they not had to take a loss of share of quota. However, there is no causal connection between the earlier representations and the later "losses". There is not, for instance, evidence that the fishers entered into contracts or incurred expenses in reliance on the old arrangement and then suffered losses because of the new reality.

[49]            As stated by McKeown J.in Radil Bros. Fishing Co., supra, at paragraph 32, the Department of Fisheries and Oceans "does not have a fiduciary duty, trust or statutory duty to assure the plaintiff's [...] licence gets the largest possible fish catch attributed so that the plaintiff makes the most possible money."

Was there an obligation to act in accordance with a prior exercise of discretion?

[50]            The Applicants submit that the May 20, 2004 decision by the Minister can only be characterized as a reversal of the Minister's prior exercise of discretion, with no further consultations or negotiations with the fishing industry.

[51]            The Applicants refer to Mount Sinai Hospital Centre v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281 in which the Minister refused to issue a license. The Court found the Minister's refusal to issue the license an invalid reversal of a prior exercise of the Minister's discretion because the Minister based his decision on irrelevant grounds or considerations. In this case, the Applicants submit that the decision to apply the 39/61 formula is a reversal of the Minister's prior exercise of discretion on March 25, 2004 to maintain the 10/90 formula. The argument that the 39/61 formula is a manifestation of the 10/90 formula is unreasonable and irrational. The Applicants assert that the adjustment to the formula made to compensate for the new licenses is a departure from the spirit and intent of the 2000 IFMP and is based on irrelevant considerations.

[52]            The respondents submit that the Applicants are in essence arguing that the Minister had previously exercised his discretion with regard to the sharing of the reduction of the TAC and that his discretion has been spent. They rely on Pacific National Investments Limited v. Victoria (City), [2000] 2 S.C.R. 919 in which an implied contractual term under which the city would either keep in place a particular type of zoning or else pay compensation for damages was an illegal fetter of the municipality's discretionary legislative powers. In the present case, the respondents argue, the Minister must be able to manage the fishery through policy, amend policy and deviate from policy when appropriate. The Minister is precluded from fettering his discretion.

[53]            The legislative scheme in this case is very different from that applied in Mount Sinai, supra and I do not find that decision helpful in this context. Rather, I prefer the reasoning of Justice Major in Comeau's Sea Foods, supra at para. 29 when he noted, in respect of the Minister's discretion to revoke a decision to cancel the authorization of licenses: "Whether the Minister decides as an initial step to authorize the issuance of a licence, there is no finality to this authorization for any of the parties concerned until such time as the licence is finally issued." [emphasis added]

[54]            Until a license is actually issued, the Minister can decide not to issue it after all, or by extension, decide only to issue it on restrictive terms. The Minister's discretion in this case was not exhausted by the decision to roll over the IFMP for another year.

[55]            I find, therefore, that there are no grounds upon which the Court could issue a declaration that the Minister erred in the exercise of his discretion in the allocation of the reduction of the total allowable catch in CFA 23 for the 2004 fishery.

Costs

[56]            The respondent submits that there are grounds for awarding the maximum scale for counsel's time in that the applicants' materials do not conform with the Court's rules. Further, it appears that this was brought to the attention of counsel for the applicants by the Registry who advised bringing a motion for leave to file these materials and that was not done.

[57]            The applicants submit that, even if unsuccessful, costs should not benefit the respondent as the airing of these issues served a public benefit.

[58]            There is no doubt that the applicants' materials are excessive. It was unnecessary, for example, to file affidavits from each of the 18 individual applicants. The written submissions are also unnecessarily prolix and in contravention of the Court's rules as to length and form. But those are failings of counsel who has been cautioned not to repeat them.

[59]            The respondent shall have its costs but in accordance with the ordinary scale.

                                               ORDER

THIS COURT ORDERS that the application is dismissed with costs to the respondent on the ordinary scale.

" Richard G. Mosley "

   Judge

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                  T-1187-04

STYLE OF CAUSE: AREA TWENTY THREE SNOW CRAB FISHER'S ASSOCIATION, a Society created under the laws of the Province of Nova Scotia and MILLBROOK MI'KMAQ FIRST NATION, of Truro Nova Scotia and

GORDON MACDONALD of Sydney, Cape Breton and ADRIAN GLOADE of Millbrook Mi'kmaq First Nation and TIMOTHY BAGNELL of Louisburg, Cape Breton and JASON CARTER of Sydney, Cape Breton and

PAUL K. CORMIER of New Waterford, Cape Breton and GARY DRAKE of Louisburg, Cape Breton and GARY HATCHER of Gabarus, Cape Breton and

GEORGE LEMOINE of Sydney, Cape Breton and GRAHAM MACCUSPIC of Grand River, Cape Breton and ROBERT MACLEAN of Louisburg, Cape Breton and ARTHUR HUTT of Louisburg, Cape Breton and RALPH RAFUSE of Fourchu,       Cape Breton and

JOHN HUGH CAMPBELL of Louisburg, Cape Breton and JAMES R. DEVRIES of Louisburg, Cape Breton and DANNY MUNDEN of Glace Bay, Cape Breton and DWAYNE STUART of Cape Breton and ERIC TRIMM of Louisburg, Cape Breton and ROBERT TRUCKAIT of Glace Bay, Cape Breton

and

THE ATTORNEY GENERAL OF CANADA and

THE MINISTER OF FISHERIES AND OCEANS                  

PLACE OF HEARING:                                 Halifax, Nova Scotia

DATE OF HEARING:                                   May 4, 2005

REASONS FOR ORDER

AND ORDER BY : The Honourable Mr. Justice Mosley

DATED:                     August 31, 2005

APPEARANCES:

Andrew N. Montgomery                                               FOR THE APPLICANTS

James D. Youden

Reinhold M. Endres                                           FOR THE RESPONDENTS

SOLICITORS OF RECORD:

ANDREW N. MONTGOMERY                      FOR THE APPLICANTS

JAMES D. YOUDEN

Metcalfe & Company

Halifax, Nova Scotia

JOHN H. SIMS, Q.C.                                                 FOR THE RESPONDENTS

Deputy Attorney General of Canada

Halifax, Nova Scotia