Date: 20061018
Docket: T-777-05
Citation: 2006 FC 1242
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,
and
ASSOCIATION DES CRABIERS GASPÉSIENS,
duly registered in accordance with the laws
of the province of Quebec
and
ASSOCIATION DES CRABIERS DE LA BAIE,
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] Following the adoption by the Minister of Fisheries and Oceans Canada (the Minister) of a Snow Crab Management Plan (the fishery resource) for the year 2005 for the southern Gulf of St. Lawrence, the applicants asked this Court to declare that the Minister acted without authority or exceeded his authority when he:
a) Set aside a 480 metric ton (mt) allocation of the total authorized capture (TAC) of the fishery resource for the year 2005 to finance activities of the Department of Fisheries and Oceans Canada (DFO) (the first issue);
b) Imposed on each holder of a snow crab fishing licence in the crab fishing areas (CFA) 12, 18, 25 and 26 a requirement to install in 2005 in their boat a Vessel Monitoring System (VMS) (the second issue).
[2] This application for judicial review is granted in part. As to the first issue, for the reasons given in relation to the judgment delivered this day in Docket T-775-05, Association des crabiers acadiens inc. et al. v. Procureur général du Canada, 2006 FC 1241, I am of the opinion that the Minister has exceeded his authority when he set aside a 480 mt allocation of the TAC for 2005 in order to finance activities of the DFO. As to the second issue, for the following reasons, I hold that the decision of the Minister to impose on crab fishermen a requirement to install in their boats a VMS was not frivolous nor arbitrary, or otherwise patently unreasonable, as per the standard of review applicable herein (Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12, at paragraph 36; Tucker v. Canada (Minister of Fisheries and Oceans), (2001) 288 N.R. 10, 2001 FCA 384, at paragraph 2, confirming (2000), 197 F.T.R. 66; Fennelly v. Canada (A.G.), 2005 FC 1291, at paragraph 21; Recherches Marines Inc. v. Canada (A.G.), 2005 FC 1287, at paragraph 17; Area Twenty Three Snow Crab Fisher’s Association v. Canada (Attorney General), 2005 FC 1190, at paragraph 22).
[3] The VMS – in the vernacular, fishermen use the term "black boxes" – is an aid to navigation system that is used to follow the movements of a navigating ship. It makes it possible to locate, instantaneously, one or more boats on the water. The VMS is useful to regulate the traffic and to avoid collisions between ships. In this sense, since it is a navigation tool, at first sight, the imposition of a requirement to install the VMS is within the authority of the Minister of Transport under the relevant provisions of the Canada Shipping Act, 2001, S.C. 2001, c. 26. Be that as it may, that finding is not determinative of this application.
[4] In this case, the Minister is responsible for the proper management and control of the sea‑coast and inland fisheries under the Fisheries Act, R.S.C. 1985, c. F-14 (the Act). Now, the applicants submitted that, under the Act, no regulations have been made that authorize the Minister to impose on licence holders the obligation to install black boxes for the purposes of proper management and control of fisheries. On the contrary, the respondent submitted that the Minister has the authority, under section 7 of the Act, to issue fisheries licences and that paragraph 22(1)l) of the Fishery (General) Regulations), SOR/93-53 (the Regulations) authorizes him to specify in a licence any condition respecting "information that the master of the vessel shall report to the Department from sea, including the method by which, the times at which and the person to whom the report is to be made".
[5] In this case, I am of the view that, if I give paragraph 22(1)l) of the Regulations a broad and liberal interpretation, as I have to, I may hold that that provision does allow the Minister to specify on a fisheries licence that the licence holder is required to install a "black box" on his ship if, of course, that condition is required for "the proper management and control of fisheries and the conservation and protection of fish", as provided for in the introductory passage of subsection 22(1) of the Regulations.
[6] In this respect, I note that the expert of the applicants was of the opinion that the VMS was not a very efficient control tool (since it does not have any visual device, like a camera, that would enable the MFO to use that system to verify and prove that a ship is engaged in illegal fishing or is violating any fisheries regulations). The expert of the applicants was also of the opinion that the VMS would not provide additional data contributing to scientific research (since under the regulations made by the MFO, each fisherman is already under a requirement to keep a log book). In addition, although there certainly are more efficient control methods (one could imagine a transmission apparatus installed in each creel left under water), the respondent submitted that this Court does not have to rule on this question; indeed, at the hearing, respondent’s counsel suggested that those alternative methods may not be technically perfected or may be too costly to be imposed today on crab fishermen.
[7] With respect to the discretion of the Minister to develop policies relating to the proper management and control of fisheries or to his discretion to issue fisheries licences under the conditions that he deems appropriate, in either case, he is bound to act in good faith and he must be guided by relevant considerations, while abiding by the rules of procedural fairness (Comeau, supra, at pages 25-26). That is the case here.
[8] Indeed, according to the documentary evidence, it appears that a number of consultations had been held with the snow crab industry before the black box requirement was announced. In this respect, the Minister concluded that the VMS would enable him "to enhance its fisheries surveillance and enforcement capabilities (aerial surveillance, at-sea patrol, and deployment of at‑sea observers) and make a considerable contribution to the overall management of the snow crab fishery, while providing additional data in support of science research". I am of the view that the intervention of this Court is not warranted in this case.
[9] It is not for me to rule on the efficiency of the method chosen in this case by the Minister. Indeed, in this application for judicial review, it is not the province of this Court to dictate to the Minister what is more appropriate, nor to substitute my personal view for that of the Minister in the assessment and the selection of measures by him in relation to the achievement of the objectives sought and the objects of the Act and of the Regulations. It is sufficient that the discretionary policy decision made here by the Minister reflect the objects of the Act and of the Regulations and that it be based on relevant considerations. That is the case here. Indeed, the decision by the Minister to impose the installation of a VMS does not appear to me frivolous nor arbitrary, nor otherwise patently unreasonable in the circumstances.
[10] Given the mixed outcome of this proceeding, in my discretion, I will not award costs to the applicants or to the respondent.
ORDER
THIS COURT DECLARES AND ORDERS :
1. This application for judicial review is granted in part;
2. The Minister exceeded his authority when he set aside a 480 mt allocation of the TAC for 2005 to finance activities of the DFO;
3. The Minister has the authority to impose on each holder of a snow crab fishing licence in the crab fishing areas (CFA) 12, 18, 25 and 26 a requirement to install in their boat a VMS;
4. No costs will be awarded.
Certified true translation
François Brunet, LL.B., B.C.L.
COUR FÉDÉRALE
AVOCATS INSCRITS AU DOSSIER
DOCKET: T-777-05
STYLE OF CAUSE: ASSOCIATION DES CRABIERS ACADIENS, duly
incorporated in accordance with the laws of the province of
New Brunswick,
ASSOCIATION DES CRABIERS GASPÉSIENS,
duly registered in accordance with the laws of the province of Quebec and
ASSOCIATION DES CRABIERS DE LA BAIE,
duly registered in accordance with the laws of the province of Quebec
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: October 4, 2006
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Martineau
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