PRACTICE
Parties
Standing
In May 2003, Canadian Minister of Fisheries and Oceans (MFO) announced increase in Total Allowable Catch (TAC) in northeastern shrimp fishery for 2003—Application for judicial review not challenging increase in TAC for northern shrimp fishery at large, nor increase in TAC for particular area (SFA 1), but rather allocation of increase in SFA 1 TAC among various fishery interests—Applicant alleging MFO’s decision failed to reflect particular consideration of relevant principles required by Nunavut Land Claims Agreement (NLCA), failed to reflect recommendation of Independent Panel on Access Policy (IPAC) previously accepted by MFO —Applicant also alleging MFO erred in law in failing to take into consideration factors of adjacency, economic dependence MFO has duty to consider under NLCA; in failing to take into consideration report, recommendation of IPAC and Minister’s announced acceptance of recommendation—Allocation of fishery resources quotas in waters adjacent to Baffin Island before Courts twice before: Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) (1997), 134 F.T.R. 246 (F.C.T.D.); affd [1998] 4 F.C. 405 (C.A.); Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) (1999), 176 F.T.R. 44 (F.C.T.D.); affd (2000), 262 N.R. 219 (F.C.A.), leave to appeal to S.C.C. refused 18/10/01—Preliminary decision: Attorney General of Nunavut Territory (AGNT) lacking standing to bring application—(1) AGNT not person directly affected by decision under review within meaning of Federal Courts Act, s. 18.1(1): Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569—MFO’s relevant authority in no way qualified in this regard by legislative authority of Nunavut Territory—Furthermore, no other interest of applicant directly affected by decision under review—(2) Applicant not establishing public interest standing—Application of tripartite test in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236: (a) no legislation before Court validity of which at issue; however, if MFO’s act in allocating quota read as tantamount to legislative act, serious issue as to validity of MFO’s quota allocation; (b) AGNT acting on behalf of Government of Nunavut, only indirectly affected, not “directly affected” by validity of quota allocation; (c) existence of another “reasonable and effective way” to bring MFO’s quota allocation decision before Court: judicial review application instituted by Nunavut Tunngavik Incorporated—Applicant lacking standing to initiate application for judicial review—However, in interest of judicial economy to deal with other issues: Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367— Mootness—Series of fishery quota allocation cases in Federal Court, Federal Court of Appeal demonstrating there remains “live controversy” among parties to application for judicial review—Issue not academic—Therefore, core issue on application for judicial review not “moot”—In public interest that substance of application for judicial review be determined—Standard of review applicable herein that of “patent unreasonableness”: Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) (F.C.A.)—Application dismissed—On facts, Minister did give special consideration to principle of adjacency and to economic dependence of communities of Nunavut Settlement Area on marine resources as required by NLCA, s. 15.3.7— Court finding IPAC, in report, very careful in its use of language, understood its mandate to be solely related to question of access, not to question of allocation—Although Memorandum before MFO made no specific reference to constitutionalized obligation of Government of Canada under NLCA, s. 15.3.7, spirit of NLCA permeated Memorandum before MFO, largely underlying recommendation made to MFO with respect to allocation of northern shrimp fishery quota with respect to SFA 1—MFO’s decision therefore not patently unreasonable—Finally, decision equitable in all respects—Took into account not only constitutionalized principles in NLCA, s. 15.3.7, but also interests of all other stakeholders in northern shrimp fishery in SFA 1—Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada, May 25, 1993, s. 15.3.7—Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1(1) (as enacted by S.C. 1990, c. 8, s. 5).
Nunavut Territory (Attorney General) v. Canada (Attorney General) (T-1070-03, 2005 FC 342, Gibson J., order dated 8/3/05, 38 pp.)