Date: 20061018
Docket: T-775-05
Citation: 2006 FC 1241
Montréal, Quebec, October 18, 2006
Present: THE HONOURABLE Mr. Justice Martineau
BETWEEN:
ASSOCIATION DES CRABIERS ACADIENS,
duly incorporated in accordance with the laws
of the province of New Brunswick,
ASSOCIATION DES CRABIERS DE LA BAIE,
duly registered in accordance with the laws
of the province of Quebec and
ASSOCIATION DES CRABIERS GASPÉSIENS,
duly registered in accordance with the laws
of the province of Quebec
Applicants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants challenge the lawfulness of the decision of the Minister of Fisheries and Oceans (the Minister) to issue a fishing licence for snow crab (the fishery resource) for 2005 to the Acadian Groundfish Fisherman's Association (AGFA) authorizing it to catch 480 metric tons (mt) of the fishery resource.
[2] The AGFA is a body corporate. It has no vessels and its members are not snow crab fishers. Furthermore, it does not meet the criteria of the Commercial Fisheries Licensing
Policy for the Gulf Region (the licensing policy), which since 1996 has provided that new licences for vessels less than 19.8 m (65 ft.) in length overall cannot be issued to corporations. However, if a licence has previously been issued in the name of a corporation, the licence may continue to be issued in the name of that corporation under a grandfather clause. Such is not the case in this instance.
[3] In 2005, the total authorized capture (TAC) in the crab fishing areas (CFA) 12, 18, 25 and 26 in the Southern St. Lawrence Gulf was set by the Minister at 32,336 mt. But the total fishing quota includes a 480 mt allocation that the Minister set aside to finance the additional activities of the Department of Fisheries and Oceans Canada (DFO) that had been announced in April 2005. These were the following: surveillance and monitoring of soft-shelled crab, trawl-net scientific survey, scientific analysis, communication of information, increased surveillance of catches and discussions on a long-term fishery resource management approach (the DFO additional activities). DFO is solely responsible for the hiring of personnel, purchase of equipment, signing of contracts and expenses associated with these additional activities. However, under the agreement the Minister signed in April 2005 with the AGFA, the latter undertook to pay the Minister a total of $1,900,000 which was to be used to defray the salaries of the DFO employees, the purchase of equipment, travel expenses, operating expenses and laboratory expenses, training costs, costs related to marketing services and the administrative costs associated with the additional activities of the DFO. To enable the AGFA to fulfil its financial obligations to the DFO, a fishing licence was accordingly issued to the AGFA by the Minister in April 2005.
[4] Following the issuance of its licence in 2005, the AGFA offered the fishers a share in its 480 mt allocation, at the price of $2 a pound, and subject to various other conditions (such as the duty to sell the fishery resource to a processing firm designated by the AGFA). The fishers who accepted this offer were subsequently designated as “operators” under the AGFA licence (which was correspondingly amended by the Minister).
[5] The applicants argued that there is no provision in the Fisheries Act, R.S.C. 1985, c. F-14 (the Act) that allows the Minister to set aside or allocate the fishery resource to anyone in order to obtain some additional funding for certain DFO activities. The most important tool he has in the performance of his duties is provided for in section 7 of the Act, which gives the Minister discretion to authorize fishing activity by granting fishing licences. The applicants submitted that the Minister exceeded his authority in this case, however. The power to issue licences was a management tool to be used primarily to control the fishing effort in relation to species the fishing of which the Minister has chosen to authorize. It would be unreasonable, they argued, to conclude that Parliament intended to give the Minister authority to sell some fishery resource, which he has a duty to manage, in order to procure financing.
[6] The applicants further submitted that the DFO was subject to the Financial Administration Act, R.S.C. 1985, c. F-11 (the FAA), like the other federal ministers. Therefore, the costs associated with the measures contemplated by the DFO for the proper management of the fisheries must be part of the budget granted by Parliament. The applicants submitted that, if the Minister lacked funds, he should have addressed his requests for funding to the Minister of Finance. The Minister’s decision to set aside a snow-crab allocation for the purpose of receiving $1.9 million to finance the DFO’s supplementary activities was not based on any authority and is not consistent with any purpose provided in the Act (Aucoin v. Canada (Minister of Fisheries and Oceans), [2001] F.C.J. No. 1157 (QL), 2001 FCTD 800 at paragraphs 43, 45). Thus, by deducting an allocation of 480 mt from the TAC, the Minister deprived each licensee of this share of the TAC and indirectly imposed an additional charge on them.
[7] I agree with the applicants. The Minister’s decision to set aside a 480 mt quota and issue a fishing licence to the AGFA in April 2005 is contrary to the Act and ultra vires his powers under the Act.
[8] It is not necessary to rely on the fact that the issuance of a fishing licence to a corporation that is not grandfathered is not covered by the licensing policy. As the Federal Court of Appeal held recently in Larocque v. Canada (Minister of Fisheries and Oceans), 2006 FCA 237, the Minister simply does not have the power under the Act to finance DFO scientific research from the sale of snow crabs, and I see no particular reason not to reach the same conclusion in the case of the financing of the DFO’s additional activities that were the subject matter of the agreement signed in April 2005 with the AGFA. In this case the Minister allocated to the AGFA the 480 mt snow crab quota that he had unlawfully appropriated for himself in order to finance the DFO’s additional activities. It follows that the Minister exceeded his power under the Act by issuing a 2005 snow crab fishing licence to the AGFA in exchange for a payment of $1,900,000 to be used to finance the DFO’s additional activities from the moneys that the AGFA has in turn obtained from the licensees who were designated as operators under the AGFA licence.
[9] Neither section 7 of the Act, which gives the Minister the authority to issue fishing licences, nor paragraph (d) of the definition of “public money” in section 2 and subsection 21(1) of the FAA, which allow the Minister to receive and use money for a purpose specified in or pursuant to an Act, trust, treaty, undertaking or contract, which are cited in this case by the respondent, confer legal authority on the Minister to issue a fishing licence, enter into a contract or receive any sum of money for purposes that are improper or unauthorized by the legislation. To repeat the very words used by Mr. Justice Décary of the Federal Court of Appeal in the Larocque case, supra, at paragraph 26, the Minister financed the DFO’s additional activities “without first appropriating the funds necessary and by misappropriating, for all intents and purposes, resources that do not belong to him.” In doing so, the Minister “confused public funds and the public domain. Without appropriating public funds he appropriated public domain. This cannot be.”
[10] Accordingly, I have decided to allow this application for judicial review. It is therefore declared that the Minister does not have the authority to appropriate the fishery resource for financing purposes. Moreover, the issuance of a fishing licence authorizing the capture of 480 mt of snow crabs in exchange for $1,900,000 to finance DFO activities is contrary to the Act, and the fishing licence issued to the AGFA by the Minister in April 2005 is declared invalid. The applicants will be entitled to their costs against the respondent.
ORDER
THE COURT DECLARES AND ORDERS:
1. The application for judicial review is allowed with costs in favour of the applicants against the respondent;
2. The Minister does not have the authority to appropriate the fishery resource for financing purposes;
3. The issuance of a fishing licence authorizing the capture of 480 mt of snow crabs in exchange for $1,900,000 to finance DFO activities is contrary to the Act, and the fishing licence issued to the AGFA by the Minister in April 2005 is declared invalid.
“Luc Martineau”
Judge
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-775-05
STYLE OF CAUSE: ASSOCIATION DES CRABIERS ACADIENS,
duly incorporated in accordance with the laws
of the province of New Brunswick,
ASSOCIATION DES CRABIERS DE LA BAIE,
duly registered in accordance with the laws
of the province of Quebec and
ASSOCIATION DES CRABIERS GASPÉSIENS,
duly registered in accordance with the laws
of the province of Quebec
v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: October 4, 2006
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Martineau
DATED: October 18, 2006
APPEARANCES:
Brigitte Sivret FOR THE APPLICANTS
Dominique Gallant FOR THE RESPONDENT
SOLICITORS OF RECORD:
Brigitte Sivret FOR THE APPLICANTS
Barrister & Solicitor
Bathurst, New Brunswick
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario