Fisheries Law

To use a nautical term, several recent decisions of the Federal Court of Appeal suggest that that the Carpenter Fishing decision may be the judicial "high water mark" of the court’s willingness to recognize the absolute discretion granted to the Minister of Fisheries pursuant to section 7 of the Fisheries Act.

As was noted in the February 1998 Legal Net column, the Carpenter Fishing case involved a challenge to the current owner restriction which was applied to participants in the halibut fishery when it was converted to individual quota in 1990. From the perspective of the Department of Fisheries and Oceans, this case was seen as a great victory, as it described the discretion of the Minister in very broad terms:

[When examining the exercise by the Minister of his powers, duties, functions and discretion in relation to the establishment and implementation of a fishing quota policy, courts should recognize, and give effect to, the avowed intent of Parliament and of the Governor in Council to confer to the Minister the widest possible freedom to manoeuvre.

. . .

Perhaps the formula adopted is not the best one, or the wisest one, or the most logical one, but the Minister is not bound to pick the best, the wisest or the most logical one and it is certainly not the function of the courts to question his judgment as to whether a quota policy is good or bad.

Not long after the Federal Court of Appeal rendered its decision in Carpenter Fishing, a completely different (three judge) panel of the same court refused to follow it in the case of Unavut Tunngavik Inc. v. Canada. This case involved, amongst other things, a challenge by the Nunavut Inuit to an allocation of quota made by the Minister of Fisheries after they received only a 9% share of an increase by Canada of its total allowable catch of turbot. In setting aside the Minister’s allocation, the court acknowledged the above quoted principles from the Carpenter Fishing decision, but declined to follow it on the following grounds: 1) the Minister’s discretion was constrained by certain requirements set out in a land claims agreement; and 2) the Nunavut case dealt with an increase of fishing quotas, not a reduction in quota as was the case for the plaintiffs in the Carpenter case. While the first stated reason sounds reasonable, the second reason seems to be a distinction without a difference. Accordingly, this case can be viewed as a modest retreat from the broad discretion given to the Minister in the Carpenter case.

The scope of the Minister’s discretion was once again considered by the Federal Court of Appeal in Mathews v. Canada (released in May of 1999). This case involved an East Coast snow crab fisherman who allegedly failed to comply with the terms and conditions of his licence by both failing to hail before changing areas and exceeding his quota on three different occasions. Although a prosecution in the courts was commenced, instead of continuing the prosecution, the Department of Fisheries decided to seek a licence sanction from the Minister through his delegate, the Regional Director.

The licence sanction process was initiated by a letter from the Area Manager advising the fisherman that he was forwarding a request to the Regional Director for a licence sanction. After receiving submissions from both the Area Manager and the fisherman, the Regional Director, in his capacity as delegate of the Minister, withheld the fisherman’s licence for the first 3 weeks of the following fishing season and reduced his quota by 50%. In doing so, his letter made it clear that this sanction was a penalty for his failure to comply with the fisherman’s licence conditions. A conservative estimate of this penalty in monetary terms was $82,600, which was much greater than the fine he would have received had a court convicted him.

In upholding the lower level court’s decision to declare the Minister’s sanction invalid, the Federal Court of Appeal said as follows:

[In exercising the power conferred on him by section 7 of the Fisheries Act to issue at his "absolute discretion" a fishing licence, the Minister of Fisheries and Oceans may not do it by attaching to the licence limitations or conditions, the sole purpose of which is to impose sanctions for the applicant’s past behaviour. . . . "It may be that past compliance . . . can be a relevant factor for the Minister’s consideration as an aspect of conservation . . . but s. 7 . . . may not be exercised for the primary purpose of penalizing an applicant . . . That section does not include the power to enforce penalties for offences for which prosecution is otherwise provided under the Act."

Given the acknowledgement in the Mathews decision that past compliance could in some ways be a relevant consideration for the Minister, this case has been criticized for not following the guidelines in Carpenter Fishing that the courts should not be second guessing the decisions of the Minister. Accordingly, this case can also be viewed as a retreat from the Carpenter Fishing decision.

It is not known yet whether leave will be sought to appeal this decision to the Supreme Court of Canada. Given the jealousy with which the Department of Fisheries and Oceans guards the discretion of the Minister under section 7, it is quite likely that leave will be sought. However, for two practical reasons it may not be of any great benefit to D.F.O.

Firstly, even if D.F.O. is successful, in re-establishing the ability of the Minister to issue licence sanctions, the current practice of delegating that function to the Regional Director is now subject to challenge based upon a recent decision of the Supreme Court of Canada in Baker v. Canada. In this decision the court reviewed the law on reasonable apprehension of bias and imposed a quite high standard on administrative tribunals, particularly when they are making decisions having great importance to people. Given that sanction decisions affect the ability of fishermen to earn their livelihoods, it is likely that pursuant to the Baker decision a high standard will be applied to the sanction review process. Since regional directors are employees of the Department of Fisheries, there is a good prospect that a sanction process administered by a regional director would not satisfy this high standard. This would be particularly true of past sanctions on the West coast, which were administered by the former head of the enforcement division.

The second reason why this decision may not be appealed is that in a bill to amend the Fisheries Act, which was tabled in 1996, a comprehensive licence sanction procedure was created to both provide for a legislative basis for sanctions and set upon a totally independent tribunal to apply those sanctions. Since this legislation would satisfy the concerns of the courts in both Mathews and Baker, D.F.O. may choose to remedy the situation in the legislature rather than the courts.

It is difficult to say, on the basis of these two decisions, whether the tide of judicial authorities has clearly changed or whether we are merely in a back eddy. Based upon past experience, however, I predict that D.F.O. will spare no resources in ensuring that it does not have to buck the tide for too long.

This article was written by Brad M. Caldwell, the editor of the Fisheries section of this web page and published in the August 1999 issue of Westcoast Fishermen, published in Vancouver, British Columbia by Westcoast Publishing Ltd.