Date: 20000302
Docket: T-2077-99
BETWEEN:
L. WAYNE SPINNEY
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA, for
and on behalf of the Minister of Fisheries and
Oceans of Canada
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the decision of Regional Director General, Maritimes Region, Neil A. Bellefontaine, of the Department of Fisheries and Oceans, made on November 22, 1999 wherein a Maritimes Region Minimum Size Variation Order 1999-137 ("variation order") was issued, increasing the legal minimum carapace size of lobsters from 81mm (3 3/16") to 82.5mm (3 1/4").
FACTS
[2] On December 10, 1997, the Minister of Fisheries and Oceans announced his intention to require Atlantic lobster fishermen, through their representatives, to prepare and submit to the Department for consideration Conservation Harvesting Plans ("CHPs") for their respective Lobster Fishing Area (LFA).
[3] The applicant is a fisherman licensed to harvest lobsters in LFA 34 and is also a member of the Executive of the LFA 34 Lobster Committee. This Committee is the principal consultative body for purposes of management and regulation of that commercial fishery.
[4] As LFA 34's response to the Minister"s announcement, a steering committee composed of fishermen, First Nations representatives, DFO representatives and Nova Scotia government representatives prepared a document titled "Lobster Fishing Area 34 Conservation Harvesting Plan for 1998-1999 Season". LFA 34 opted for the v-notch method.
[5] V-notching involves the marking of female lobsters which are captured bearing eggs (berried lobsters) by cutting a small groove in the tail fin of the animal before it is returned to the water. The notch remains in the animal for approximately the next two years, until molts eventually eliminate the mark. If a v-notch lobster is later caught, even when not bearing eggs, it must be returned alive to the water. In this way, known spawners are protected and the probability of their survival to spawn again is enhanced.
[6] V-notching requires a high degree of voluntary compliance by fishermen. Despite the prohibition against retaining or landing v-notched lobsters being easily enforceable through inspection of landings, enforcement officers have no way to ensure that when a berried female is captured at sea, its tail is marked by notching prior to its release.
[7] DFO issued a press release saying that the Minister accepted all CHPs proposed for 1998. However, in order to ensure a four-year plan is in place, additional measures will be introduced in 1999, 2000, 2001.
[8] The accompanying backgrounder document titled "1998 Nova Scotia and Bay of Fundy Lobster Conservation Measures" details :
| Lobster Fishing Area
(Current Minimum
carapace size)
|
Conservation Measures
|
| LFA 34
(81mm) (3-3/16")
|
| 1998 v-notch (includes fishers providing detailed data on catch & effort and conducting post season survey to determine level of v-notching). |
| 1999 increase minimum size 1/16" (82.5mm) plus v-notch. |
| 2000 maximum size of 133mm plus v-notch (if v-notch level sufficient) OR increase minimum size 1/32" to 3-9/32" (83.25mm) OR increase minimum size 1/16" to 3-/16" (84mm) plus maximum size of 133mm. |
| 2001 maintain minimum size 82.5mm plus maximum size of 127mm OR maintain maximum size 133mm plus increase minimum size to 86mm. |
|
[9] The backgrounder concludes with the following note:
| For LFA"s that have plans approved for year 1 (1998), the department will accept industry-proposed measures for years 2, 3 and 4 provided they meet the target of doubling egg production (example : LFA 33, 34). |
[10] LFA 34 reacted strongly to the additional measure. The Minister, by letter dated January 18, 1999 replied:
| I assure you that there is no intent to impose additional measures "regardless of the amount of v-notched lobster caught during the June, 1999 survey". However, I remain committed to my challenge to the lobster industry throughout Atlantic Canada to adopt measures that meet a doubling of current egg production levels in all areas. |
| If the analysis of the v-notching program in 1999 and beyond can actually demonstrate that fishers have met their commitments as submitted in your CHP, no further measures would or should be required. However, should these results show the contrary, the LFA 34 CHP as announced offers a number of options that must be considered in order to meet the commitment to double egg production. |
[11] A press release was issued on March 10, 1999 following a meeting of representatives of lobster fishermen from various lobster areas and the Department of Fisheries & Oceans, stating:
| Representatives of LFA"s 27, 29, 30, 31A, 31B, 32, 33, 34 met today in Truro and unanimously agreed that they have made substantial contributions to lobster conservation in the changes implemented in 1998. They are in agreement that there should be moratorium or additional changes. |
[12] On April 27, 1999 a meeting was held, and the applicant was present when the Minister"s firm position on the four-year plan was restated.
[13] Another meeting was held on June 9, 1999, where the planned carapace size increase was discussed again.
[14] The June 1999 survey did not take place as scheduled. Instead, it was postposed til the fall.
[15] DFO scientists presented the results of their assessment of the v-notching program in LFA 34, based apparently only on data provided in the logbooks filled out and returned by participating fishermen. LFA 34 Lobster Committee prepared its own analysis of the documents issued by DFO. The analysis shows in part:
| a) Participation in the v-notching program peaked at 73% in May 1999 and on average over the 1998-1999 season was 52%; |
| b) 131,595 animals were v-notched. Committee members conservatively estimate that these berried female represent 2.63 billion eggs which, at 1% survival rate to maturity, represent 26 million future animal; |
| c) Committee members estimate that 18,387,000 animals were harvested in 1998-1999 in LFA 34; |
| d) DFO scientists concede that even in this initial year, the v-notching program increased egg production by an estimated 10% to 20%. |
[16] A couple of other meeting (October 26, 1999, November 5, 1999) took place during which the increase of carapace size was raised again.
[17] By letter dated November 17, 1999, the Minister of Fisheries, Herb Dhailwal wrote to the applicant confirming the carapace size increase for fall 1999 will be maintained.
[18] He further, issued on November 17, 1999, a press release stating that nine out of the twelve Scotia-Fundy LFAs have already implemented measures to move them closer to meeting their target. The Minister also stated that the three remaining areas (LFAs 33, 34 and 36) will implement carapaces size increase this fall.
[19] On November 22, 1999, the Regional Director acting under the authority conferred by section 6 of the Fishery (General) Regulations issued a variation order increasing the minimum lobster length in LFA 34 to 82.5mm effective November 28, 1999.
APPLICANT'S POSITION
[20] The applicant raises three issues:
1. Use of the variation order;
2. The Minister"s letter dated January 18, 1999;
3. The best interests of conservation.
Use of the Variation Order
[21] The applicant does not dispute the fact that the Regional Director General has the authority to make variation orders. However, he submits that in the circumstances of this case, the variation order in question represents the exercise of power beyond the scope of that intended in either the Act or the Fishery (General) Regulations.
[22] The applicant submits that the Regional Director General's authority to vary regulations is intended to be applicable to, and that its exercise is limited to, temporary variances which are made necessary by urgent situations in the fisheries to which they apply. A variation order which has the effect of achieving a permanent amendment to a provision in the substantive regulations is submitted to be beyond the scope of the authority of the Regional Director General. Such permanent change, especially when implemented otherwise than in a situation of urgency is submitted to be a delegated legislative function which must be exercised by the Governor in Council.
[23] The applicant points to the fact that the materials from the Regional Director General's file, filed with the Court pursuant to Rule 317, establish that there was no conservation requirement. It is submitted that the legal basis on which the Department is permitted to deviate from the ordinary regulation-making process through the device of variation orders is demonstrated not to have been present.
[24] The applicant submits that making this variation order at this time in these circumstances was an excess of statutory authority by the Regional Director- General and for this reason alone, the impugned variation order should be declared null and void.
[25] It is submitted that a variation order is intended to be and can only validly be made when it is, an interim measure intended to address immediate concerns in a fishery. In the interest of immediacy of response, it is exempted from the consultation, scrutiny, pre-publication and referral requirements which accompany the federal regulation-making process. Regulations, on the other hand, which are permanent in nature and for which no compelling case of urgency exists, are required by section 43 of the Fisheries Act to be made by Governor in Council. If it were otherwise, it is submitted there would be no need to prescribe any close times, quotas or size restrictions in the Regulations. The Act could simply state that such measures can be prescribed from time to time by the department officials.
[26] The applicant submits that variation orders are available only when necessary to temporarily address immediate concerns and they cannot otherwise be used to affect long-term regulatory changes, and for this additional reason the variation order should be declared void and should be quashed.
The Minister"s Letter Dated January 18, 1999
[27] The applicant further argues that the Minister should be bound by his decision as set out in his letter dated January 18, 1999.
[28] The applicant submits that there can be no dispute that the analysis of the v-notching program in 1999 and beyond, unsatisfactory results of which, the Minister promised, would be the condition precedent to the requirement for further measures, was not performed as contemplated.
[29] Furthermore, the use of the words "1999 and beyond" by the Minister promised that consideration would be given to the results of v-notching during fishing seasons subsequent to 1998-1999. Such future seasons would have to include, at minimum, the 1999-2000 LFA 34 season. Finally, analysis performed by both the Department scientist and by LFA 34 Fishermen's Committee demonstrate that the success of the 1998-1999 v-notching program exceeded all expectations, and at least for purposes of the season which will follow the 1998-1999 season, the condition precedent to the imposition of "additional measures" can be demonstrated not to exist.
[30] The applicant does not dispute the Minister's latitude of discretion to act in the public interest and to allow response to changing conditions which affect fish stocks and the fisheries which depend on them. However, the applicant is not aware of any relevant circumstances which have changed between January 18 and November 22, 1999 and which would even potentially justify a change in the Minister's regulatory position as expressed on the former date.
[31] It is submitted that the issuance of the impugned Variation order in spite of the assurance contained in the Minister"s January 18, 1999 letter, was capricious and arbitrary, was demonstrably not based on "relevant considerations", and has not been shown by the respondent Crown to have been done in "good faith".
The Best Interests of Conservation
[32] It is further submitted that the Department's overriding public duty is to ensure conservation of wild fish populations.
[33] The applicant submit that it can be demonstrated that the imposition of a carapace size increase in LFA 34 in this (1999-2000) season may undermine the long-term best interests of conservation in LFA 34.
[34] The Department's action in proceeding with additional measures in the face of significant industry opposition, in the face of recommendations by senior officials that ongoing fishermen's participation in data collection is more important than immediate imposition of those measures, and, in the case of LFA 34, in the face of a ministerial promise not to do so, with full knowledge that doing so risks jeopardizing ongoing collection of the best possible scientific data, and, thereby, ultimate selection of the best possible conservation techniques for the southwest Nova Scotia lobster fishery, is submitted to be unethical to the Department's overriding public duty to act in the best interests of conservation of the resource.
RESPONDENT"S POSITION
[35] The respondent submits that the variation orders are legislative acts not administrative acts.
[36] It is submitted that on judicial review of a variation order, the question then is whether it falls within the scope of the regulation granting the authority to enact it, whether there are express limits or whether there are limits in the power delegated. The respondent submits that the variation order falls within the scope of the authority granted to the Regional Director- General.
[37] Similarly, with respect to the variation order under consideration in this case, the respondent submits that :
| a) There is a conservation purpose underlying it; |
| b) There are no express limitations set out in the Fisheries Act or Regulations; and |
| c) In light of the clear conservation purpose underlying the variation order it has been for a purpose clearly within the intent of the Act and the Regulations and there can be no question of any inherent limitations on its exercise. |
[38] Should the Court not accept this position, the respondent replies to the grounds advanced by the applicant.
Use of the Variation Order
[39] The applicant submits that there is nothing in the Fisheries Act or the Regulations which introduces any such limitation on the authority given to the Regional Director-General.
[40] It is further submitted that there is nothing in the Regulations which requires that it be read so as to be limited to temporary variances which are made necessary by urgent situations. Neither the Fisheries Act or the Fisheries (General) Regulations purports to define the circumstances in which the Governor in Council, on the one hand, and the Regional Director-General, on the other hand, may or may not exercise the legislative mandate granted to them.
[41] It is further submitted that the applicant does not take issue with the vires of the order but seeks only to have its implementation postponed until certain conditions are met.
[42] It is further submitted that once the Court finds that the statutory grant authorizes the particular delegated legislation, it is not to the Court"s role to determine the wisdom of the delegated legislation.
The Minister"s Letter Dated January 18, 1999
[43] It is submitted that the applicant is urging the Court to read the Minister"s statement out of context. After stating that new measures were not going to be implemented "regardless of the amount of v-notch lobster caught", the Minister goes on to reiterate his challenge to industry to adopt measures that would double egg production. As Douglas Pezzack states, the maximum increase that the DFO Scientist estimate could be achieved by v-notching was, at the high end, 20% and this was not 20% per year. In light of the impossibility of the only measure suggested by industry reaching the goal ( in 1999, 2000 or 2001), the carapace size increase was put into effect.
[44] Furthermore, the respondent did not waiver from his position to increase the carapace size as discussed previously and as expressed throughout the different meetings held.
The Best Interests of Conservation
[45] Although the applicant states that he is not inviting the Court to decide what specific conservation measures are appropriate in LFA 34, the respondent submits that that is precisely what he is asking.
ANALYSIS
[46] Parliament conferred upon the Governor in Council the authority to make regulations under section 43 of the Fisheries Act R.S.C. (1985) C. F-14:
| 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
(m) where a close time, fishing quota or limit on the size or weight of fish has been fixed in respect of an area under the regulations, authorizing persons referred to in paragraph (l) to vary the close time, fishing quota or limit in respect of that area or any portion of that area.
|
43. Le gouverneur en conseil peut prendre des règlements d'application de la présente loi, notamment :
m) habilitant les personnes visées à l'alinéa l) à modifier les périodes de fermeture, les contingents ou les limites de taille ou de poids du poisson fixés par règlement pour une zone ou à les modifier pour un secteur de zone.
|
[47] The Governor in Council then enacted the Fishery (General) Regulations pursuant to the Act. Section 6 of the Fishery (General) Regulations authorises the Regional Director-General to make variation orders.
[48] Section 6 sets out:
| 6. (1) Where a close time, fishing quota or limit on the size or weight of fish is fixed in respect of an area under any of the Regulations listed in subsection 3(4), the Regional Director-General may, by order, vary that close time, fishing quota or limit in respect of that area or any portion of that area.
|
6. (1) Lorsqu'une période de fermeture, un contingent ou une limite de taille ou de poids du poisson est fixé pour une zone par un des règlements énumérés au paragraphe 3(4), le directeur général régional peut, par ordonnance, modifier la période de fermeture, le contingent ou la limite pour cette zone ou pour toute partie de cette zone.
|
[49] It is pursuant to this provision that the variation order regarding the increase in carapace size was introduced, as the applicant concedes.
[50] In Gulf Trollers Assn. v. Canada (Minister of Fisheries and Oceans), [1987] 2 F.C. 93, the Federal Court of Appeal held:
| Indeed, I have come to the conclusion that the Public Notices under attack were not made in the exercise of an administrative function, but rather in the exercise of a regulatory one. We are concerned with legislative acts, that is to say acts the effects of which were the creation and promulgation of a general rule of conduct without reference to particular cases. |
| The establishment of close and open times for fishing is a legislative function which Parliament has delegated, by section 34 of the Fisheries Act, to the Governor in Council and, through the latter, to fishery officers. |
[51] In Western Pulp Inc. v. Roxburgh (1990), 122 N.R. 156, the Federal Court of Appeal adopted the trial judge, Justice Stayer"s reasoning regarding variation orders when he stated:
| As was held in the Gulf Trollers case closure orders are legislative acts being the "promulgation of a general rule of conduct without reference to particular cases". If a legislator approves a legislative measure within his jurisdiction, it is not open to the courts to question the motivation of the legislator in doing so. |
[52] In a case regarding the closing of salmon fishing season, this Court held in Monks v. Canada (Attorney General) (1992), 58 F.T.R. 196:
| Both Variation Orders were of a legislative nature not related to the rights or interests of any specific individual but were part of the general public management of the salmon fishery. |
[53] Justice Adams concluded in R. v. Corcoran, (October 19, 1999) 1998 St. J. No. 2581(S.C. N.F.):
| In my view the decision to vary a close time is legislative in nature, not administrative. |
| This order affected such a large area and number of people that it could not be said to be purely administrative. Not only did it restrict certain persons from fishing commercially for cod in prescribed areas or with particular gear, it prohibited anyone from fishing for cod, even for their own use, in the areas affected; a huge part of the east coast of Canada. |
| It is not always easy to distinguish between a legislative act and an administrative act as administrative action sometimes can affect a fairly large number of people or apply in a significant part or perhaps all of the country. The difference has been thus described in de Smith's Judicial Review of Administrative Action, Fourth Edition, by J.M. Evans, 1980, at page 71: |
| A distinction often made between legislative and administrative acts is that between the general and the particular. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practice. Legal consequences flow from this distinction. |
| With the greatest respect to those who have held otherwise, I am satisfied that the variation order in question is a "promulgation of a general rule of conduct without reference to particular cases" and is therefore a legislative act. This is subordinate legislation but legislation nonetheless. |
[54] Variation orders are statutory instruments issued pursuant to the Fishery (General) Regulations. They are used by the Fishery Department to close the fishing period, change fishing quota, as well as limit the fish size or weight. They may be issued on a short period of time. Often, the variation order is broadcasted to notify vessels who may have already left for sea. They affect all fishermen and create general rules of conduct in respect of fishing. Thus this Court had held previously that the variation orders are regulatory.
[55] Nowhere in the Act or Regulations, is it stated that variation orders are to be used as urgent or temporary measures only. I cannot agree with the applicant that such a limitation exists in this case.
[56] In Bates v. Lord Hailsham, [1972] 1 W.L.R. 1973., a decision adopted by the Supreme Court of Canada, Megarry J. held:
| Let me accept that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness. Nevertheless, these considerations do not seem to me to affect the process of legislation, whether primary or delegated. Many of those affected by delegated legislation, and affected very substantially, are never consulted in the process of enacting that legislation; and yet they have no remedy ... I do not know of any implied right to be consulted or make objections, or any principle upon which the courts may enjoin the legislative process at the suit of those who contend that insufficient time for consultation and consideration has been given. |
[57] Furthermore, Monks, supra, reiterated this notion:
| Thus, although there was extensive consultation and ample warning of the coming of this scheme to enable any one to make his views known in advance to the Minister, there was in fact no legal requirement of such consultation and concerns about the nature of that consultation cannot create a serious issue as to the validity of the orders made. |
[58] The jurisprudence is fairly clear on this subject, there is no obligation to consult the fishermen, although in the present case, numerous meetings were held and the Minister"s position was widely known.
[59] In Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735">[1980] 2 S.C.R. 735, the Supreme Court held:
| Where, however, the executive branch has been assigned a function performable in the past by the Legislature itself and where the res or subject matter is not an individual concern or a right unique to the petitioner or appellant, different considerations may be thought to arise. The fact that the function has been assigned as here to a tier of agencies (the CRTC in the first instance and the Governor in Council in the second) does not, in my view, alter the political science pathology of the case. In such a circumstance the Court must fall back upon the basic jurisdictional supervisory role and in so doing construe the statute to determine whether the Governor in Council has performed its functions within the boundary of the parliamentary grant and in accordance with the terms of the parliamentary mandate. |
[60] Given that the variation order is a legislative act, authorized by the Regulations and adopted pursuant to the Act, this Court"s jurisdiction is limited. It can intervene, on the basis of unconstitutionality (i.e. contrary to sections 91 or 92 of the British North America Act), a breach of procedure, or the legislative act being ultra vires of the enabling statute. None of these grounds were raised here.
[61] The Minister identified an overfishing problem and resulted to conservation measures to remedy it. In so doing, he used the statutory instrument provided for in the Regulations. This Court has no jurisdiction to intervene.
[62] For these reasons, this judicial review should be dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
March 2, 2000
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