Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans)

In Aboriginal Rights/Defences, Fish Cases on (Updated )

This case involved a lands claims agreement between the Government of Canada and the Nunavut Inuit. Amongst other things, this agreement provided that the Government of Canada would "seek the advice of the NWMB (Nunavut Management Wildlife Board) with respect to any wildlife management decisions . . . which would affect the substance and the value of Inuit harvesting rights and opportunities within the marine areas of the Nunavut Settlement Area." The agreement also provided that the Government would recognizes the importance of the principles of adjacency and economic dependence of communities in the Nunavut Settlement Area on marine resources and give special consideration to these factors when allocating commercial fishing licences.

In 1997, the Minister of Fisheries acted against the advice of the NWMB and his own assistant deputy minister in increasing the total allowable catch of turbot without securing an agreement from Greenland to reduce its share of the total allowable catch. According to the assistant deputy minister, such an increase would cause over fishing. The Minister also made some changes to the allocation of Turbot amongst the user groups.

With respect to the allocation issue, the motion’s judge, Mr. Justice Campbell ruled that term "special consideration" as it occurred in the Land Claims agreement meant the Nunavut had priority in allocation decisions within their area over everyone, including Nunavik Inuit.

With respect to the decision to increase the total allowable catch, upon reviewing the Minister’s authority under s. 7 of the Fisheries Act, and the principles of administrative law, the motion’s judge concluded that the Minister could lose his jurisdiction if he failed to take relevant factors into consideration when making a decision. He concluded that it was incumbent upon the Minister of Fisheries to "consider" the advice and recommendations of the NWMB. The scope and meaning of what is meant by "consider" must be examined on a case by case basis. The court concluded that in light of the obligations imposed by the wording of the Land Claims Agreement, the scope of what is meant by the word "consider" is much more than simply receiving and examining advice. "Thus, consultation and consideration must mean more than simply hearing. It must include listening as well." This means that if a recommendation is not accepted by the Minister, at the very least, an explanation must be given as to why it was not accepted.

As a consequence of the Minister’s failure to take into account relevant considerations, the motion’s judge set aside his decision, and referred the matter back to the Minister for consideration in accordance its reasons.

The case was appealed with the Nunavik from Northern Quebec intervening.

On appeal, the Federal Court of Appeal held as follows:

1. With respect to the decision to increase the total allowable catch, the court ruled that, while the Minister of Fisheries is under an obligation to seek and consider the advice from the Nunavut, the Minister is under no obligation to accept the advice. In addition, the Minister is under no obligation to give reasons for his decisions regarding matters outside the Nunavut Settlement area. The court ruled that the motion’s judge erred in his conclusion that the Minister failed to consider the advise of the NWMB.

2. With respect to the requirement that the Minister give special consideration to the principals of adjacency and economic dependence, the court ruled that the motion’s judge erred in ruling that the Nunavut had priority over all other Inuit users of the resource in the area. The court also ruled that the Minister’s discretion under section 7 of the Fisheries Act is limited by the Crown’s obligations under the land claims agreement as implemented by the Parliament of Canada. Although a decision of a Minister cannot be set aside for failure to give reasons, it can be set aside if "in the absence of reasons it is not possible to overcome the perversity or error derived from the result or surrounding circumstances of the decision (Minister of Citizenship and Immigration v. Williams) [1997] 2 F.C. 646;673 (F.C.A.). After reviewing in detail the facts of the case, the court concluded that "in the absence of explanations or reasons for coming to that conclusion . . . [the facts] lead to a reasonable inference that the Minister either did not give special consideration to the adjacency and economic dependence principles as required by the Agreement or misconstrued these principles when allocating commercial fishing licences within Zone I"

The court varied the order of the motions Judge, to delete the requirement to act in accordance with his reasons, and upheld his requirement that the matter be referred back to the present Minister for reconsideration.

Editor’s Note: This case is interesting in its attempt to reconcile its earlier decision in the Carpenter Fishing decision with the results in this case.

Counsel for the Nunavut: Douglas Brown and Will Hinz

Counsel for the Crown: Brian Everndon

Counsel for the Intervenor: Peter Hutchins and David Kalmakoff