Association des Senneurs du Golf Inc. v. Canada (Minister of Fisheries), docket T-2145-96

     Date: 19990915

     Docket: T-2145-96

OTTAWA, ONTARIO, SEPTEMBER 14, 1999

Before:      NADON J.

Between:

L"ASSOCIATION DES SENNEURS DU GOLFE INC. ("the Association"),

LA FÉDÉRATION RÉGIONALE ACADIENNE DES PÊCHEURS

PROFESSIONNELS INC. ("FRAPP"),

FERNAND FRIOLET, ÉMILE GAUVIN, ROMÉO MICHON,

CAMILIEN HACHÉ, LIBERT CHIASSON and

ELDEGE CHIASSON ("the seiners"),

     Applicants

     (Plaintiffs),

     - and -

HER MAJESTY THE QUEEN IN RIGHT OF CANADA,

represented by the Minister of Fisheries and Oceans ("the Minister") and

THE ASSISTANT DIRECTOR GENERAL ("the Director"),

Maritime Regions (Gulf Fisheries) of the Department of Fisheries and Oceans,

     Respondents

     (Defendants).

     ORDER

     The application for judicial review is dismissed.

Marc Nadon      JUDGE

Certified true translation

Bernard Olivier, LL. B.

     Date: 19990915

     Docket: T-2145-96

Between:

L"ASSOCIATION DES SENNEURS DU GOLFE INC. ("the Association"),

LA FÉDÉRATION RÉGIONALE ACADIENNE DES PÊCHEURS

PROFESSIONNELS INC. ("FRAPP"),

FERNAND FRIOLET, ÉMILE GAUVIN, ROMÉO MICHON,

CAMILIEN HACHÉ, LIBERT CHIASSON and

ELDEGE CHIASSON ("the seiners"),

     Applicants

     (Plaintiffs),

     - and -

HER MAJESTY THE QUEEN IN RIGHT OF CANADA,

represented by the Minister of Fisheries and Oceans ("the Minister") and

THE ASSISTANT DIRECTOR GENERAL ("the Director"),

Maritime Regions (Gulf Fisheries) of the Department of Fisheries and Oceans,

     Respondents

     (Defendants).

     REASONS FOR ORDER

NADON J.

[1]      By their application for judicial review the plaintiffs are seeking an order:

(a)      cancelling the allocation of quotas for herring fishing in 1996 in zone 4TVn1 in the south of the Gulf of St. Lawrence, as published by the Director or his subordinates;

(b)      cancelling the imaginary line determining the fishing zone referred to as Baie des Chaleurs in zone 4TVn in the south of the Gulf;

(c)      cancelling the decision by the Minister of Fisheries and Oceans ("the Minister") to prohibit their right to sell their herrings to preservers;

(d)      requiring the Minister to issue an official management plan for herring fishing in the south of the Gulf, any reduction in the total allowable catches ("TAC") to apply equally to inshore fishers and the applicants in that zone;

(e)      requiring the Minister or Director to grant them access at all times to all of zone 4TVn, including the Baie des Chaleurs.

Facts

[2]      The relevant facts may be summarized as follows. The principal plaintiffs are the Association des Senneurs du Golfe Inc. and its members, namely six fishers who are owners and masters of a fishing boat, engaged in herring fishing using a running seine.²

[3]      Until 1960 herring fishing in the south of the Gulf of St. Lawrence was done by inshore fishers exclusively. From 1960 on seiners began fishing for herring and in 1967 they

caught as much herring as the inshore fishers. In 1970, the seiners caught over 155,000 tons while the inshore fishers only caught 19,600 tons.

[4]      In 1976 the Minister began issuing limited access licences for purse seine fishing and for conservation purposes reduced the quotas for seiners in the south Gulf zone. In 1981 the Minister took the decision to allocate 80 per cent of the quotas to inshore fishers and 20 per cent to seiners. The Minister further reduced the total allowable catches ("TAC") for herring.

[5]      The TAC allocation between seiners and inshore fishers in the ratio of 80 per cent to 20 per cent is subdivided as follows: for inshore fishers the fishing zones are the following:

(1)      16A - Île Verte, in Quebec;

     (2)      16B - Baie des Chaleurs;

(3)      16C (Escuminac) - southeast New Brunswick;

(4)      16D - Île-de-la-Madeleine, in Quebec;

(5)      16E - west of Prince Edward Island and north of the Northumberland Strait;

(6)      16F - Pictou on Prince Edward Island; and

(7)      16G (Fishermen's Bank) - northeast of Prince Edward Island and west of Cape Breton.

The fishing of seiners is subdivided between zone 4-T and zone 4-VN. The allocation in zone 4-T is usually fished in Baie des Chaleurs and the zone 4-VN allocation is usually fished off Cape Breton. The seiners" fishing is devoted exclusively to supplying the market for herring flesh, while that of the inshore fishers is devoted exclusively to supplying the herring roe market (eggs). Fishing by inshore fishers in the Baie des Chaleurs is done in the locations known as spawning grounds (places where herring breed), while the seiners" fishing primarily takes place outside these areas.

[6]      In May 1995 a scientific assessment of the herring stock in the southern Gulf of St. Lawrence was published indicating that the biomass of the stock had declined significantly, by about 20 per cent. This information was passed on to seiners by the Minister in early December 1995.

[7]      Since 50 per cent of the total biomass in the southern Gulf of St. Lawrence is located in the Baie des Chaleurs, the Minister decided to limit herring catching there to 50 per cent for 1996.

[8]      At a meeting with the Minister in December 1995 the seiners recognized that it was necessary for the Minister to take measures to preserve the herring stock. This concession included the fact that the Minister would have to impose an additional reduction on the quota in the Baie des Chaleurs. This is why on December 27, 1995 the Association des Senneurs sent the Minister a letter in which it stated:

A concern that has become an issue for 1996 is the Health of the Stock, and the Relationship the 87 year class has had on the Biomass Assessment. This Biomass concern is generated and fuelled at this time, not only because of the decline of the 87 year class, but, by the concentration of fishing effort on the spawning stocks within the Inner Bay of Chaleur.

Despite the fact that our TAC is 20 per cent of the quota, and our historical catches have been about 52 per cent of our TAC, we realize that conservation is the priority. Our proposal will outline our position that will enable the Purse Seine Fleet the time and flexibility needed to harvest our TAC, along with the conservation concerns addressed to ensure, as single licence holders, that we will still have a viable TAC to harvest in the future.

[9]      The Association's conservation proposal was contained in an appendix to the letter. Points 2 and 4 of the principles and points 5 and 6 of the proposed conservation plan are relevant and read as follows:

PRINCIPLES

2.      The fleet must be afforded the opportunity to catch their full herring quota available to them in 1996.

. . . . .

4.      As single licence holders, the fleet is committed to the proper management and conservation of the 4TVn herring stock to ensure the sustainability of the resource and is prepared to do its part to achieve this objective, fut feels it should not be expected to shoulder more than its fair share of the stock conservation burden.

The 1996 Seiner Management Plan

5.      The purse seine fleet recognizes the concern over the level of concentrated effort on the herring stock components in the Bay of Chaleur area in the months of August and September, and is prepared to do its part to redue its effort providing in doing so, it is not precluded from taking its full quota.

To address these concerns, the purse seine fleet will agree, in 1996, for a ligne to be

drawn from the light in Miscou across to the light in Cap d'Espoir. This ligne would be in place for the first three weeks in August, during which time the purse seine fleet would not harvest herring inside these two points.

6.      In order for the purse seine fleet to agree with point #6 [sic], there must be assurances that if these restrictions result in the fleet not harvesting their TAC in 4T, any shortfall in their quota would be added to their 4VN quota.

This would not only ensure the fleet be given a fair opportunity to harvest their full TAC, but it also allows more flexibility in harvesting fish outside the concerned area of the inner Bay of Chaleur. This point is consistent with past and current scientific advice, as it has been accepted that the fish in the area of 4VN north is 4T stock.

[10]      On March 27, 1996, the Association des Senneurs sent the Minister a revised proposal. I reproduce points V and VI of that revised proposal:

V)      The Purse Seine Fleet recognizes the high level of harvest in the inner Bay of Chaleur by the Seine Fleet and the concentration on the roe fishery by the inshore fleet.

To provide relief on the effort inside the Bay, the Purse Seine Fleet proposes that it will not fish the inner Bay for the months of July and August.

The inner Bay will be defined by the ligne 1-2, 2-4 on DFO'S Map, the change would be on the ligne 2-4 where it would be intersected by a ligne from Cap Gaspé.

Our harvest outside this ligne by the Purse Seine Fleet, three of which may be equiped with mid-water gear, will certainly take pressure off the inner Bay.

VI)      We do not propose a cap on the Purse Seine Fleet for the inner Bay when it moves back in September, October and November unless we have complete assurance of a transfer of quota from 4T to 4VN which will help ensure capture of our TAC.

[11]      The position adopted by the inshore fishers appeared from a letter that their representatives wrote to Fisheries and Oceans of March 28, 1996. The letter reads in part as follows:

[TRANSLATION]

Following the fall meeting of the herring fishing advisory committee we held two meetings with our fisher-representatives affected by this matter. Briefly, the position of our members is as follows.

First, our fishers, realizing the difficulty of securing their quota last summer, are increasingly convinced that stocks in the Baie des Chaleurs are not in as good condition as they were a few years ago. Efforts should be reduced in the Baie des Chaleurs and they agree with the scientific opinion that recommends a certain reduction in 1996.

For our members fishing with fixed quotas, this reduction could be quite significant since it might represent two weeks less fishing. Currently herring fishing by our inshore fishers is limited to a month and a few weeks, depending on the catch rate.

Further, the fact that we are non-mobile fishers forces us to wait until the herring comes to shore, to lay its eggs, before we can begin fishing.

If the reduction for inshore fishers in the Baie des Chaleurs is on the order of 6,000 metric tons, as suggested by the scientific study, we feel our contribution to building up stocks is extremely significant.

We also understand that the large seiners will have their shares reduced proportionately. However, the sacrifice made by our fishers should be just as great for the seiners. In 1995, when the DFO allowed them to fish into the middle of August, these fishers took all their quota from the Bay, seriously reducing Baie des Chaleurs stock. This practice is entirely unacceptable and if the same thing happens again in 1996 the efforts by inshore fishers to rebuild stocks will be cancelled out. So as to build stocks up again quickly, we are asking the DFO to allow large seiners to catch only 40 per cent of their quota in the Baie des Chaleurs, that is inside lines 1, 2, 3 and 4, as described by the DFO.

Secondly, we recommend that the large seiners only be allowed to catch 40 per cent of their quotas inside these lines. Further, this 40 per cent could only be fished for once we have caught our quota.

Third, we recommend that the Department change the legal herring size to 28 cm. overall, as was the case before the DFO changed the legal size in fall 1993, so the herring will be allowed to breed once before being caught.

According to biologists most herring breed at four years old, after they have reached a minimum size of 28 cm. However, some large individuals may breed at only three years old. It should be noted here that these individuals are quite mature and easily reach the 27.5 cm length overall at the age of three years.

Fourth, as to the use of trawl nets, our fishers are afraid of their use since this kind of tackle is less selective than the purse seine and its use will not help to rebuild stocks in the Baie des Chaleurs. If the Department decides to allow such tackle, we would like to be assured that this kind of tackle will not be used in the Baie des Chaleurs and near the Miscou coasts.

[12]      On April 3, 1996 the Minister announced a provisional management plan for spring fishing in the herring fishing zone 16. According to that plan seiners were allocated a spring quota of 3,906 tons in zone 16.

[13]      In April 1996 the scientific studies showed that it was necessary to reduce quotas for 1996 fall fishing by 34 per cent instead of the 20 per cent anticipated following the 1995 analyses.

[14]      In June 1996 the Minister announced certain measures designed to reduce fishing in the Baie des Chaleurs in 1996. Those measures covered:

[TRANSLATION]

(a)      the drawing of an imaginary line at the entrance to Baie des Chaleurs: from July 1 to August 1996 seiners could fish for herring outside this line;

(b)      seiners would have the right to transfer their uncaught quotas from zone 16 to the Sydney Bight zone (in zone 17), an area where there is a large concentration of herring stock in winter;

(c)      the Minister will allow the use of trawl nets by seiners in July and August outside the Baie des Chaleurs in the south of the Gulf; and

(d)      the seiners may fish for up to 50 per cent of their fall quota inside the Baie des Chaleurs, the rest of their quota to be caught outside.

[15]      Following discussions between the Minister and representatives of members of the industry, the fall 1996 TAC was set at 57,000 tons, a reduction of 33 per cent from the 1995 TAC of 84,997 tons. The seiners' allocation was reduced by 37 per cent, from 27,630 tons to

12,845 tons, while that of inshore fishers was reduced by 31 per cent, from 64,637 tons to 44,158 tons.

[16]      In subdividing the Baie des Chaleurs as he did the Minister took into the account the fact that seiners could fish elsewhere in zone 16 and could benefit from the right to transfer their uncaught quotas from zone 16 to zone 17.

[17]      As to the division of quotas between seiners and inshore fishers, the Minister decided on the allocation based on several factors, including:

(a)      distribution of the resource on principles of fairness;

(b)      proximity of the resource;

(c)      the relative dependence of coastal communities on the resource;

(d)      the yield from the economic return; and

(e)      the mobility of fishers.

[18]      As the Minister concluded that seiners enjoyed greater mobility he consequently allowed inshore fishers to catch a reduced quota inside the Baie des Chaleurs. In making this decision the Minister took into account the fact that he could allow seiners to transfer their quotas to zones outside the Baie des Chaleurs as they enjoyed greater mobility.

[19]      The result of the measures introduced by the Minister in 1996 was to reduce 1996 quotas, compared with those for 1995 as follows: a 29 per cent reduction for inshore fishers and 31 per cent for seiners. The following table³ sets out this information:

[TRANSLATION]

Fleet	Season	Zone	1995		1996
			Tons	%	Tons	per cent
Inshore fishers	Spring	16	16,800		12,954
	Fall	16	64,640		44,158
	Spring	17	---		140
	Fall	17	---		560
Subtotal:			81,440	76.83	57,812	77.53
			Tons	%	Tons	per cent
Seiners	Spring	16	4,200		3,906
	Fall	16	16,160		8,645
	Fall	17	4,200		4,200
Subtotal:			24,560	23.17	16,751	22.47
TOTAL:			106,000	100	74,453	100

[20]      On September 27, 1996 the plaintiffs filed the action at bar. The plaintiffs" position is set out clearly in paragraph 1 of section 1 of their memorandum, which states:

[TRANSLATION]

The plaintiffs maintain that in carrying out the mandate conferred on them by the federal Fisheries Act to manage and exploit fishing resources in the Atlantic Canada region, and in particular to manage commercial herring fishing in 1996, the defendants acted arbitrarily and in a discriminatory way, without valid reason recognized by law and the Canadian Charter of Rights and Freedoms, to improperly deprive the plaintiffs of access to their traditional fishing grounds inside the Baie des Chaleurs at the usual fishing periods to the benefit of another group of fishers commonly referred to as the inshore fishers. In so doing the arbitrary and discriminatory actions of the defendants were such that the plaintiffs were unable to catch the quotas that would otherwise have been available to them and so suffered substantial economic losses.

[21]      In paragraph 5 of section IV of their memorandum the plaintiffs submitted:

     [TRANSLATION]

     The plaintiffs respectfully submit that:

in exercising their power of managing the exploitation of fishing resources and commercial herring fishing the defendants are required to act fairly and to ensure that they give proper consideration to all persons concerned with any commercial fishing sector whatever, and in particular to all persons concerned including the plaintiffs, in management decisions made regarding the exploitation of the commercial herring fishery;

in fact, the defendants are subject to a fairness requirement that they act properly in respect of all persons concerned, and in particular the plaintiffs, even though from time to time the interests of different parties may appear to diverge;

the decision made by the defendants in respect of the plaintiffs at the relevant time was conduct which demonstrated discretion that had not been exercised in good faith or objectively and honestly, without serious study of the plaintiffs' position and without taking into account the consequences for them of their decision to establish the commercial herring fishing management plan in the Baie des Chaleurs in 1996; and

the plaintiffs maintain that the decisions affecting them made by the defendants were arbitrary, unreasonable, discriminatory and wrongful.

[22]      Part V of the plaintiffs' memorandum is titled "ARGUMENTS". I reproduce it in part:

[TRANSLATION]

6.      The DFO is responsible for managing the herring fishery in the south Gulf, both as regards herring fishing by seiners and that by inshore fishers.

7.      In 1996, herring fishing in the south Gulf included the events set out below:

(a)      the Minister had still not issued an official management plan for herring fishing in the south Gulf;

(b)      the Director (or his representative) drew an imaginary line creating a new fishing zone referred to as "Baie des Chaleurs": this zone took in almost all of one of the largest traditional fishing areas for seiners in the south Gulf;

(c)      the Director (or his representative) denied seiners access to this zone in July and August 1996;

(d)      the Director (or his representative) limited seiners to 50 per cent of their quotas in the zone referred to as "Baie des Chaleurs", as of September 1, 1996;

(e)      the Director (or his representative) set quotas for seiners" fishing in spring 1996 and is now refusing to allow to transfer these quotas to fall 1996 fishing (which represents about 2,000 tons of herring), despite the fact that seiners paid all the dues for access to their quota and that the DFO accepted this payment;

(f)      so far as can be determined inshore fishers have been able to fish for their full quota in the zone referred to as "Baie des Chaleurs", and this has not been true for seiners: in such circumstances, seiners feel that they have been unfairly treated by the DFO.

8.      As a consequence of these events, and in particular the Minister's inaction regarding management of the herring fishery in 1996, seiners have suffered a systematic erosion of their right of access to their traditional fishing grounds, resulting in a loss of market for their product (herring flesh) and a loss of employment for the members of their crews and factory workers.

10.      In view of the foregoing, the Minister:

(a)      has failed to observe a principle of natural justice, procedural fairness or other procedure that he was required by law to observe;

(b)      failed to make a decision or order, in this case an official management plan for herring fishing in zone 4TVn of the south Gulf;

(c)      failed to make a decision or order that would allow seiners to fish for herring up to the amount of their quota, namely 20 per cent of the total quota allowed for herring fishing in zone 4TVn for 1996; and

(d)      acted in other respects contrary to law and contrary to the rights of seiners resulting from licences for which they had duly paid and obtained from his Department.

12.      Additionally, the plaintiffs rely on the rules of natural justice mentioned in Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12.

17.      The significance of the Supreme Court of Canada decision lies in the fact that the limits of the exercise of the Minister's discretionary authority are defined as being prohibitions from taking a decision arbitrarily, a duty to act in good faith, and finally, a duty to base his decision on relevant considerations. Although the Court noted that when a Minister is required by law to exercise his discretionary authority in response to immediate and urgent policy concerns, which might be mutually be regarded as a case where Parliament intended the Minister to be ultimately responsible to the political authorities, the fact remains that there are limits on the exercise and use of this discretionary authority. In the instant case the evidence will show that the Minister did not observe the limits on the exercise of his discretionary authority, so that he acted in respect of the plaintiffs in a capricious, discriminatory and arbitrary way.

[23]      For the reasons that follow, I consider that the application for judicial review should be dismissed.

[24]      Section 7 of the Fisheries Act, R.S.C. 1985, c. F-14, gives the Minister absolute discretion regarding the issuing of fishing leases and licences and licences to operate fisheries.

[25]      Since there is no limitation in the Fisheries Act or Regulations regarding matters over which the Minister should exercise his powers, there is in my opinion no question that the Minister has the power to manage fishing in accordance with social, economic or other factors. In my view, there is nothing to prevent the Minister favouring one group of fishers at the expense of another. In Gulf Trollers Assn. v. Canada (Minister of Fisheries and Oceans), [1987] 2 F.C. 93, Marceau J.A., speaking for the Federal Court of Appeal, said the following at 106 regarding the federal Parliament's jurisdiction under s. 91(12) of the Constitution Act, 1867:

The power conferred on Parliament in subsection 91(12) of the Constitution Act, 1867 is not qualified, in my understanding, by any inherent condition that it be used to pursue some specific objectives and not others. Parliament may manage the fishery on social, economic or other grounds, either in conjunction with steps taken to conserve, protect, harvest the reserve or simply to carry social, cultural or economic goals and policies. In fact, in my view, unless and until the party attacking legislation on division of power grounds identifies a possible trespass on a specific law making power of the other level of government, the purpose for which a piece of legislation was passed is of no concern of the courts.

[26]      The law applicable to the case at bar is not in dispute. Recently, in Carpenter Fishing Corp. v. Canada (C.A.), [1998] 2 F.C. 548 (C.A.), the Federal Court of Appeal per Décary J.A. set out the applicable rules at 561 and 562:

The imposition of a quota policy (as opposed to the granting of a specific licence) is a discretionary decision in the nature of policy or legislative action. Policy guidelines outlining the general requirements for the granting of licences are not regulations; nor do they have the force of law. It flows from the decision of the Supreme Court of Canada in [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, and from the decision of this Court in Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247 (C.A.) that the Minister, provided he does not fetter his discretion to grant a licence by treating the guidelines as binding upon him, may validly and properly indicate the kind of considerations by which he will be guided as a general rule when allocating quotas. These discretionary policy guidelines are not subject to judicial review, save according to the three exceptions set out in Maple Lodge Farms: bad faith, non-conformity with the principles of natural justice where their application is required by statute and reliance placed upon considerations that are irrelevant or extraneous to the statutory purpose.

Once the Minister, through his Department, has defined policy guidelines, what is requested from him when granting a licence is to direct his attention to the applicant and to satisfy himself that the general guidelines may be fairly applied to that applicant. To the extent that the policy is developed by the Minister in the exercise of his general duties under the Fisheries Act and that it is not blindly applied by him in the later exercise of his discretion when granting a specific licence, the act of granting the licence, however administrative in nature and otherwise subject to ordinary judicial review as it may be, cannot be challenged under the general rules applicable to administrative actions in so far as its policy component, i.e. the implementation of the quota policy by the Minister is concerned. When examining an attack on an administrative action - the granting of the licence - a component of which is a legislative action - the establishment of a quota policy - reviewing courts should be careful not to apply to the legislative component the standard of review applicable to administrative functions. The line may be a fine one to draw but whenever an indirect attack on a quota policy is made through a direct attack on the granting of a licence, courts should isolate the former and apply to it the standards applicable to the review of legislative action as defined in Maple Lodge Farms.

[27]      In Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12, the Supreme Court of Canada clearly indicated that the administrative scheme resulting from the Fisheries Act was one based on the Minister's discretionary authority. At 25 and 26 Major J. wrote the following, for the Court:

It is my opinion that the Minister's discretion under s. 7 to authorize the issuance of licences, like the Minister's discretion to issue licences, is restricted only by the requirement of natural justice, no regulations currently being applicable. The Minister is bound to base his or her decision on relevant considerations, avoid arbitrariness and act in good faith. The result is an administrative scheme based primarily on the discretion of the Minister: see Thomson v.Minister of Fisheries and Oceans, F.C.T.D., No. T-113-84, February 29, 1984.

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.

[28]      I hasten to add here that the plaintiffs admitted that the Minister did not act in bad faith. As a result, in order to succeed the plaintiffs had to show that there was non-compliance with the rules of natural justice, exercised in a discriminatory, perverse or capricious way, or based his decision on irrelevant considerations unrelated to the purpose of the Act.

[29]      I must now turn to the specific allegations made by the plaintiffs.

[30]      First, the plaintiffs objected to the division of the quota in the Baie des Chaleurs. It appeared from the evidence that the Minister's decision was made in accordance with the following factors, namely the greater mobility of the seiners, and his decision to allow the seiners to catch their quota outside the Baie des Chaleurs. In view of the evidence, and taking into account the submissions made by the seiners in their letter of December 27, 1995 and that

of March 27, 1996, I cannot conclude that the Minister's decision was made in an arbitrary or discriminatory way or that he based his decision on considerations that were irrelevant or unrelated to the purpose of the Act.

[31]      Secondly, the seiners argued that the lack of an official management plan in 1996 had negative repercussions on all of the herring fishing industry, and on them in particular. The evidence clearly showed that the Minister did not publish an official management plan for 1996 because the questions relating to the reduction of quotas and their transfer were discussed and debated up to fall 1996. Consequently, it would have been futile to publish a management plan. In any case, in view of the discretion conferred on the Minister under s. 7 of the Fisheries Act, I consider that the Minister had no duty to adopt or issue an official management plan for 1996.

[32]      Thirdly, the plaintiffs asked this Court to quash the Minister's decision prohibiting them from selling their herring to preservers. In paragraph 66 of their memorandum the defendants replied to the plaintiffs' argument as follows:

[TRANSLATION]

66.      As to the limitations on the sale of herring in the spring by seiners, the Minister informed the seiners of his intention to take steps for socio-economic reasons to allow inshore fishers to dispose of their catches in their traditional markets. The respondents contend that this is a valid socio-economic purpose and the decision so made is not a discriminatory act or an act in bad faith.

     I entirely concur with the defendants' argument.

[33]      Fourthly, the seiners sought access at all times to all of zone 4TVn, including the Baie des Chaleurs. In my view, this claim can only be dismissed. In view of the absolute discretion conferred on the Minister under s. 7 of the Act, I do not see how I could allow the seiners' request. In any case, it seems clear that allowing the seiners the right of access to all of zone 4TVn at all times would be prejudicial to the conservation measures taken by the Minister.

[34]      Fifthly, the seiners argued that the Minister refused to allow them to transfer their quotas for spring 1996 to fall 1996 fishing. In my view, the Minister was under no obligation to allow the transfer sought by the seiners.

[35]      In conclusion, the application for judicial review must be dismissed. For the reasons stated in their memorandum, the plaintiffs were not satisfied by the Minister's decision to reduce quotas and his decision on the way in which quotas would be divided between their fleet and that of the inshore fishers. Unfortunately for them, I have come to the conclusion that the Minister did not exercise his powers in a discriminatory, wrongful or capricious way or base his decision on irrelevant factors. Although I sympathize with some of the arguments put forward by the seiners, it is not my function to make decisions that only the Minister can make.

---

[36]      For these reasons, the application will be dismissed without costs.

Marc Nadon      JUDGE

OTTAWA, Ontario

September 15, 1999

Certified true translation

Bernard Olivier, LL. B.

---

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT No.:          T-2145-96

STYLE OF CAUSE:      L'ASSOCIATION DES SENNEURS DU GOLFE ET AL. v. HER MAJESTY THE QUEEN ET AL.

PLACE OF HEARING:      OTTAWA

DATE OF HEARING:      JANUARY 11, 1999

REASONS FOR ORDER BY:      NADON J.

DATED:          SEPTEMBER 15, 1999

APPEARANCES:

BASIL CHIASSON      FOR THE APPLICANT

PETER ANNIS AND      FOR THE RESPONDENT

MARTINE RICHARD

SOLICITORS OF RECORD:

BASIL CHIASSON      FOR THE APPLICANT

MARTINE RICHARD      FOR THE RESPONDENT

__________________

¹      Zone 4T is another way of referring to zones 16A to 16G. This zone includes the Baie des Chaleurs. Zone 4Vn is another way of referring to zone 17, which is located near Cape Breton Island.

²      Definition: "Seine" n.f. - var. "senne" - [TRANSLATION] Nets spread out to form a semi-circle. (See Le Nouveau Robert, Montréal, Dicorobert Inc., 1993)

³      This table appears as Exhibit D of the affidavit of Laurent Paulin, sworn to on October 3, 1996.