Judgments

Decision Information

Decision Content

A-1076-84
Minister of Fisheries and Oceans and Wayne Shinners, Regional Director General of the Department of Fisheries and Oceans for the Pacific Region (Appellants) (Respondents)
v.
Gulf Trollers Association (Respondent) (Appli- cant)
INDEXED AS: GULF TROLLERS ASSN. V. CANADA (MINISTER OF FISHERIES AND OCEANS)
Court of Appeal, Urie, Marceau and Hugessen JJ.—Vancouver, September 16; Ottawa, Novem- ber 3, 1986.
Fisheries — Salmon fishing in Gulf of Georgia — Species in decline — Fishery officers restricting open season for com mercial salmon fishing — Sport fishing unrestricted — Vary ing close times not administrative but legislative function — No express limitations in Act nor in Regulations as to purpose — Federal legislative power over fisheries not limited to conservation — Socio-economic considerations valid — Fish eries Act, R.S.C. 1970, c. F-14, s. 34 (as am. by R.S.C. 1970 (1st Supp.), c. 17, s. 4) — Pacific Commercial Salmon Fishery Regulations, C.R.C., c. 823, s. 5(1) (as am. by SOR/82-529, s. 3(1)) — British Columbia Sport Fishing Regulations, SOR/82-645 — An Act to amend the Fisheries Act, S.C. 1985, c. 31.
Constitutional law — Distribution of powers — Fisheries — Variation of close times for commercial salmon fishing in effect giving priority to sport fishing — Socio-economic as well as conservation objective pursued — Varying close times not administrative but legislative function — No express limi tations in Act nor in Regulations as to purpose — Federal legislative powers not limited as to purpose — Courts examine purpose only if trespass on provincial power alleged — Fisher ies Act, R.S.C. 1970, c. F-14, s. 34 (as am. by R.S.C. 1970 (1st Supp.), c. 17, s. 4) — Pacific Commercial Salmon Fishery Regulations, C.R.C., c. 823, s. 5(1) (as am. by SOR/82-529, s. 3(1)) — Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (R.S.C. 1970, Appendix II, No. 5] (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1), ss. 91(12), 92.
In 1984, Public Notices were issued by fishery officers varying the close times for commercial salmon fishing in several areas of the Gulf of Georgia in British Columbia. While these new restrictions were imposed on the commercial fishermen, none were imposed on sport fishermen.
In the Trial Division, certiorari was granted on the basis that varying close times was an administrative function and that it exceeded permissible constitutional powers for the appellants to pursue socio-economic objectives in the allocation of the fish stock. This is an appeal from that decision.
Held, the appeal should be allowed.
Even though the order appealed from had no practical effect since it was made when the impugned Public Notices had spent their effect and even though an amendment to the Fisheries Act now allows the taking into consideration of socio-economic factors in the allocation of fishery resources, this case must be dealt with because it raises the constitutional question of whether subsection 91(12) of the Constitution Act, 1867 authorizes Parliament to establish close and open times for catching fish not only for conservation, but also for a purpose of a socio-economic nature.
The issuing of the Public Notices is not an administrative but a legislative function. The effect was the creation and promul gation of a general rule of conduct without reference to particu lar cases. Since this is a delegated power, it must be ascertained that it does not extend beyond the limits either expressly set by the delegating authority or inherent in the power being delegat ed. There were no express limitations in the Fisheries Act nor in the Regulations. There remains to be determined whether the power being delegated (subsection 91(12) of the Constitu tion Act, 1867) was in itself so limited.
The cases where the fishery power was defined as a power to "regulate, protect and preserve the fisheries" were all con cerned with alleged intrusions of the central government into provincial jurisdiction. They cannot be interpreted as indicating that Parliament's competence is confined to legislation neces sary to conserve and protect fisheries to the exclusion of all other objectives. In fact, a piece of legislation, such as in the present situation, which can only fall under one class of subject is not assailable because of the objective, the motive or the purpose for which it was enacted.
Since the fishery power is not qualified by any restriction as to the objectives that may be pursued, there is nothing to prevent Parliament from pursuing social, economic or other objectives in the management of the fishery, either with or independently of conservation objectives. Unless the party attacking legislation on division of power grounds identifies a possible trespass on a specific law making power of the other level of government, the purpose for which it was enacted is of no concern to the Courts.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
The Queen v. Robertson (1882), 6 Can. S.C.R. 52; Attorney General for the Dominion of Canada v. Attor neys General for the Provinces of Ontario, Quebec and
Nova Scotia, [1898] A.C. 700 (P.C.); Attorney General for British Columbia v. Attorney General for Canada, [1914] A.C. 153 (P.C.); Attorney General for Canada v. Attorney General for Quebec, [1921] 1 A.C. 413 (P.C.); Attorney General for Canada v. Attorney General for British Columbia, [1930] A.C. 111 (P.C.).
COUNSEL:
Gunnar O. Eggertson and D. R. Kier for
appellants.
J. K. Lowes and A. Shields for respondent.
S. B. Armstrong and A. W. Carpenter for
intervenor Pacific Trollers Association.
SOLICITORS:
Deputy Attorney General of Canada for appellants.
Mawhinney & Kellough, Vancouver, for respondent.
Lawson, Lundell, Lawson & McIntosh, Van- couver, for intervenor Pacific Trollers Asso ciation.
The following are the reasons for judgment rendered in English by
MARCEAU J.: This appeal is from an order of the Trial Division [[1984] 2 F.C. 398] quashing certain Public Notices issued by fishery officers of the Department of Fisheries and Oceans varying "close times" for some commercial troll fishing in the Gulf of Georgia, B.C. The real issue that it raises is not easily defined in legal terms. As will appear, the learned Motions Judge saw the impugned Public Notices as being administrative decisions and yet determined that they were illegal because they had been made for a purpose [at page 408] "beyond permissible constitutional pow ers". Then, before this Court, the parties were all agreed that, whether or not the Notices were classified as administrative in nature, a crucial constitutional question could be ultimately involved, a question, in their submission, that should be dealt with in any event. I will take the view that, in fact, there is only one issue immedi ately arising which is a constitutional one, but I leave it at that for the moment: the difficulty and the vital importance of defining precisely the ques-
tion to be determined will become apparent once the particulars of the case are set out.
The Fisheries Act (R.S.C. 1970, c. F-14 as amended) was enacted by Parliament in the exer cise of the jurisdiction over "Sea Coast and Inland Fisheries" conferred upon it by subsection 91(12) of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1)]. Section 34 of that Act provides as follows:
34. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the forego ing, may make regulations
(a) for the proper management and control of the seacoast and inland fisheries;
(b) respecting the conservation and protection of fish;
(c) respecting the catching, loading, landing, handling, trans porting, possession and disposal of fish;
(d) respecting the operation of fishing vessels;
(e) respecting the use of fishing gear and equipment;
(/) respecting the issue, suspension and cancellation of licences and leases;
(g) respecting the terms and conditions under which a lease or licence may be issued; [R.S.C. 1970 (1st Supp), c. 17, s. 4]
(h) respecting the obstruction and pollution of any waters frequented by fish;
(i) respecting the conservation and protection of spawning grounds;
(j) respecting the export of fish or any part thereof from Canada;
(k) respecting the taking or carrying of fish or any part thereof from one province of Canada to any other province;
(1) prescribing the powers and duties of persons engaged or employed in the administration or enforcement of this Act and providing for the carrying out of those duties and powers; and
(m) authorizing a person engaged or employed in the administration or enforcement of this Act to vary any close time or fishing quota that has been fixed by the regulations.
Several sets of Regulations have been enacted by the Governor in Council under the authority of section 34 of the Fisheries Act. The Pacific Com mercial Salmon Fishery Regulations [C.R.C., c. 823 (as am. by SOR/82-529)] is one of them. By virtue of the provisions of these Regulations, salmon fishing by means of trolling is in principle
prohibited in Pacific waters. Since 1982, the "close time" (when no fishing is allowed) for trolling, purse seine and gillnet gear is prescribed to be from January 1 to December 31 (AB41). An important reservation is however made in subsec tion 5(1) [as am. idem, s. 3(1)] which provides as follows:
5. (1) The Regional Director or a fishery officer may vary any fishing quota or close time set out in these Regulations in respect of any river, Area or Subarea.
The Public Notices in question in these proceed ings were issued pursuant to subsection 5(1) of the Pacific Commercial Salmon Fishery Regulations. Their object was to vary the period of close time for troll fishing for some species of salmon. They declared that the catching and landing of chinook salmon was permitted from 23:00 hours June 30, 1984 to 24:00 hours August 31, 1984 in the "Inside Salmon Troll Area", that is to say, mainly the Strait of Georgia and the Strait of Juan de Fuca between Vancouver Island and the mainland of British Columbia.
The owners and operators of fishing vessels engaged in commercial trolling could only see their expectations completely frustrated by the issuance of these Public Notices. In the past, the troll season for chinook in the gulf had always been from April 15 to September 30 and, indeed, since the Regulations had established a close time extending in principle over the whole year, notices of variance had been issued each year to allow the traditional fishing pattern. That pattern was sud denly being discarded. Not only was the open season for chinook salmon shortened, it was lim ited to a period when the fishing of chinook had traditionaly been marginal for the trollers, their primary target during July and August being coho, another species of salmon they were then allowed to fish. So, they decided to dispute the validity of the Public Notices and through their associations commenced the present proceedings for relief in the nature of certiorari, the Gulf Trollers Associa tion initiating the application and the Pacific Trollers Association seeking leave to intervene. (I
will hereinafter for convenience refer to "the trollers".)
In the Trial Division, the trollers built their case on the fact that new restrictions on chinook salmon fishing were being imposed on the commercial fishermen while no corresponding provisions were made to restrict other user groups in the fishing industry, and in particular none were imposed on sport fishermen. Indeed, the British Columbia Sport Fishing Regulations [SOR/82-645] enacted in 1982 at the same time as the Pacific Commer cial Salmon Fishery Regulations in question here, limited the close time for sport fishing in the gulf to only one hour per year, and while there were individual limitations for sport fishermen as to the use of certain equipment and the number of fish that could be caught per day and per year, no "cutting" of these year round open times had ever been imposed. The trollers readily acknowledged that the chinook salmon species, particularly the native or wild variety, was in serious decline and that preservation, protection, and rehabilitation were required to ensure future adequate stocks. They argued, however, that if the Department's officers had been influenced solely by consider ations of preservation and conservation, the com mercial fishermen would not have been left alone to pay the price, particularly in light of the fact that, historically, sport fishermen take more chi- nook in a given year than the commercial gulf trollers. Obviously, a desire to favour the sport fishery over the commercial fishery in allocating the resource was behind the decisions. In the troll - ers' submission, this desire to favour sport fishing may have arisen in perfect good faith and out of a factually correct view of sport fishing as "a major economic asset, an indispensable centerpiece in Canada's national, recreational and tourism indus tries" (news release from the Ministry of Fisheries and Oceans, 1984 ABIOS). Nevertheless, such a concern should not form the basis for a decision
respecting close and open times for fishing made by a federal authority.
•
The learned Motions Judge agreed. In his rea sons for judgment, after having confirmed the facts as alleged by the trollers and endorsed their contention that the powers of the Federal Minister of Fisheries and of Parliament in respect of "Sea Coast and Inland Fisheries" were limited to mat ters of protection and conservation of the resource, he expressed briefly the essence of his reasoning as follows [at pages 407-408]:
The April 16 variations of the total closure were, on the evidence before me, conceived on two bases: a need for conser vation, and an intention to favor the sport fishery user of the resource. The conservation motive was at the "ultimate penal ty" expense of the commercial inside trollers. The discriminato ry preference was for the sport fishery. The respondents knew the cutting of the trollers' season and catch, while permitting an estimated 30,000 chinook to escape for protection and conservation purposes, at the same time opened an estimated 60,000 chinook to sport harvest.
The respondents' decisions of April 16 were, to my mind, prompted by two disparate and pervading reasons: conserva tion, and socio-economic management allocations.
The second purpose was, in my view, beyond permissible constitutional powers. The two considerations were inextricably mixed. In those circumstances the Court cannot segregate. The decision must fall.
As the learned Judge went on to explain, this was a clear case of administrative orders made under the influence of an irrelevant consideration: such orders simply could not be allowed to stand and had to be quashed.
I alluded in my opening remarks to the difficul ty of defining the real issue the Court was asked to determine on this appeal. Now that the substance of the decision appealed from and the factual context in which it was rendered have been reviewed, this preliminary but foremost difficulty
must be addressed. The difficulty arises from two particular circumstances affecting the case. The first one is simple. The learned Trial Judge took care not to make his order until September 1, 1984, when the impugned Public Notices had already spent their effect. He did that, of course, for the sake of the trollers, since by quashing the Notices he was at once rendering fully operative the standing Regulations completely prohibiting troll fishing. His order, however significant it was, had nevertheless no practical effect, and this is a fact which cannot be simply ignored.
The second particular circumstance which may affect the definition of the issue to be resolved is that the parties have sought and been given leave to put before the Court the following joint state ment concerning a "Bill" [Bill C-32, now S.C. 1985, c. 31, assented to June 28, 1985] introduced into Parliament, on March 6, 1985:
The decision to introduce into the House of Commons Bill C-32 to amend the Fisheries Act which was substantially amended and is now Chapter 31 S.C. 33-34 Elizabeth II was precipitated by the decisions of Collier J. in the Gulf Trollers Association application under Section 18 of the Federal Court Act now under appeal in these proceedings and in an application by Fishing Vessel Owners Association of B.C. for an interlocutory inj unction.
Bill C-32 was introduced into the House of Commons for several reasons including:
(1) To make express what was thought by those in charge of administering the fishery to be implicit in the federal jurisdiction over "sea coast and inland fisheries" granted under the Constitution Act, 1867, and in the power grant ed under Section 34 of the Fisheries Act for the Governor in Council to make regulations inter alia:
(a) for the proper management and control of the sea coast and inland fisheries; and
(b) respecting the conservation and protection of fish
namely those set out in section 2.1 of the said Bill C-32 which read as follows:
PURPOSES
2.1 The purposes of this Act are
(a) to provide for the conservation and protection of fish and waters frequented by fish;
(b) to provide for the proper management, allocation and control of the sea-coast fisheries of Canada;
(c) to ensure a continuing supply of fish and, subject to paragraph (a), taking into consideration the interests of user groups and on the basis of consultation to maintain and develop the economic and social benefits from the use of fish to fishermen and others employed in the Canadian seacoast fishing industry, to others whose livelihood depends in whole or in part on seacoast fishing and to the people of Canada; and
(d) to provide for the proper management and control of the inland fisheries of Canada and, subject to the constitu tional jurisdiction of the provinces, for the allocation of those fisheries.
As a result of amendments made in the course of passage of the said Bill the changes in the Fishery Act which would help to accomplish these purposes will, unless replaced by further legislation, cease to be law on January 1, 1987.
In what situation does all this leave the Court? What is the question the Court is called upon to determine? The mere upholding or setting aside of a judicial order which was itself moot when ren dered would, of course, serve no practical purpose. The parties can only be interested in the reasons that lead to the conclusion, if one is sought and reached. But if the Court accepts the characteriza tion of the Notices as administrative decisions, which was adopted by the Trial Judge and not disputed by counsel, and goes on to form the view, as urged initially by the respondent, that the fish ery officers were not authorized by the Regula tions or the Act as it then stood to give effect to socio-economic factors as they did, then again, in view of the amendments to the Act, the decision would be purely academic. The parties did express a desire for the Court, in forming its opinion, to take into consideration the intervention of Parlia ment in 1985, but it would not be appropriate for this Court to give a legal opinion on the validity of legislation not directly involved in the litigation.
For a time, I had serious doubts as to the necessity for, or at least the propriety of, the Court's dealing with the case. So long as it was presented as being merely the case of public offi cials' unauthorized administrative acts, its con sideration appeared either inconsequential, the orders being spent, or useless, a new Act being now in force. But I see the case quite differently now,
and, as I see it, it raises a constitutional issue which undoubtedly must be dealt with. Indeed, I have come to the conclusion that the Public Notices under attack were not made in the exer cise of an administrative function, but rather in the exercise of a regulatory one. We are concerned with legislative acts, that is to say acts the effects of which were the creation and promulgation of a general rule of conduct without reference to par ticular cases. The issuing of yearly Notices by fishery officers is part of the process adopted by Parliament to establish close and open seasons for fishing as part of the exercise of its power over sea-coast and inland fisheries. (As to the distinc tion between administrative and legislative func tions, see: de Smith's Judicial Review of Adminis trative Action, (4th ed. 1980, J.M. Evans ed.) at pages 71 et seq.; H. W. R. Wade, Administrative Law (4th ed. 1977) at pages 695 et seq.; R. Reid and H. David, Administrative Law and Practice (2nd ed. 1978) at pages 142-143.) It is clear that the trollers' submission has some meaning only when the Notices are seen not in isolation but as part and parcel of a whole, which whole comprises all of the Regulations, including those relating to sport fishing, as well as to commercial fishing, and all Notices of variance issued by the proper departmental authorities. The establishment of close and open times for fishing is a legislative function which Parliament has delegated, by sec tion 34 of the Fisheries Act, to the Governor in Council and, through the latter, to fishery officers. Applying this analysis to the circumstances of the case—and with respect to those circumstances I accept the findings of fact of the learned Trial Judge, more particularly the finding that there was, behind the Department's decisions, not only a clear purpose of conservation, but also a purpose of a socio-economic nature, namely that of favoring the sport fishery in the allocation of the limited available resource—the issue becomes clearer. It is trite to say that a delegated power does not extend beyond the limits either expressly set by the dele gating authority or inherent in the power being delegated. Since there were no express limitations in the Fisheries Act nor in the Regulations as to the purposes for which the fishery officers could make use of their delegated authority, the issue is whether the power being delegated was in itself so limited. The question to be answered therefore is whether Parliament, in the exercise of its legisla-
tive competence under subsection 91(12) of the Constitution Act, 1867,' can establish close and open times for catching fish not only for the purpose of conservation, but also for a purpose of a socio-economic nature.
I should simply say, with respect, that I do not see how the question as put could be answered in the negative. The respondent and the intervenor rest their whole case on statements made by the Supreme Court and the Privy Council in delivering judgment in cases involving subsection 91(12) of the Constitution Act, 1867. They maintain that, in the very first and leading case of The Queen v. Robertson (1882), 6 Can. S.C.R. 52, the fishery power was defined as a power to "regulate, protect and preserve the fisheries", and that in many subsequent cases the words "regulation, protection and preservation" were repeated to focus attention upon the essential content of the power described in the words "sea-coast" and "inland fisheries". It is to be noted, however, that these cases were all immediately concerned with alleged intrusions of the central government into spheres of legislative authority conferred on the provincial legislatures, in particular into the sphere covered by the power to regulate property and civil rights, which, as it is known, led primarily to a distinction between legis lation with respect to fisheries and legislation with respect to proprietary rights over fisheries (see in particular: Attorney General for the Dominion of Canada v. Attorneys General for the Provinces of Ontario, Quebec and Nova Scotia, [1898] A.C. 700 (P.C.); Attorney General for British Columbia v. Attorney General for Canada, [1914] A.C. 153 (P.C.); Attorney General for Canada v. Attorney General for Quebec, [1921] 1 A.C. 413 (P.C.) and Attorney General for Canada v. Attor ney General for British Columbia, [1930] A.C. 111 (P.C.)). In none of these cases was the ques-
I will take the liberty to refer hereinafter only to section 91 or section 92.
tion raised whether, in exercising its jurisdiction over fisheries, Parliament could pursue socio-eco nomic objectives. As I read them, the words used by the judges in those cases to characterize and better describe the federal power were not intend ed to indicate authoritatively that Parliament's competence was confined to legislation necessary to conserve and protect the fishery to the exclusion of all other objectives.
In fact, I never understood the distribution of legislative powers made by sections 91 and 92 between the central Parliament and the provincial legislatures as having been devised with some regard to the purpose for which a power could be exercised. The distribution is made on the basis of classes of subjects (the statement in the opening paragraph of section 91 is unequivocal: "it is hereby declared that ... the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated"), each class of sub ject being defined with reference to specific per sons, things or activities. The distribution is one of law-making powers, not one of interests or con cerns, and I see no immediate legal meaning behind the phrase "valid federal constitutional purpose".
A statute, as I see it, can be impugned before the Courts, on division of power grounds, only if it introduces legislation with respect to a class of subject not assigned to the legislative authority from which it emanates. The difficulty, as is well known, is that a statute may "introduce legisla tion" with respect to more than one class of sub ject, in the sense that it may affect the legal regime applicable to persons, things or activities falling into more than one of the classes of subjects set out. This is so because, not only are the classes of sections 91 and 92 not mutually exclusive, but also, and maybe even more importantly, because the effects of a piece of legislation are often
diverse and complex, some being direct, others indirect, some immediate, others remote, some openly desired, others left undisclosed, some readi ly apparent, others not immediately perceived. In order to link a particular legislative enactment to only one of the several classes of subject directly or indirectly affected by it, and, by so doing, deter mine which authority had the competence to enact it, the Courts have been led to compare and deter mine the relative importance of the several effects of the challenged legislation and they have done so at times by reference to what appeared to them to have been the "purpose" for which it had been adopted. The "purpose" there in question is that behind the particular statute involved and it is brought into the picture only to assess what was called the "pith and substance", that is the true meaning or salient effect of that legislation or at least the effect assigned to it by those who have enacted it. But, in my view, a piece of legislation which can only fall under one class of subject, one head of power, is not assailable because of the objective, the motive or the purpose for which it was enacted. (Particularly interesting discussions on these points are to be found in W. R. Leder- man, "Classification of Laws and the British North American Act", Legal Essays in Honour of Arthur Moxon, (J. Corry, F. Cronkite & E. Whit- more eds. 1953), at page 183; B. L. Strayer, The Canadian Constitution and the Courts (2d. ed. 1983), at pages 213 et seq.)
That this is the situation here is clear. The reference to purpose is not suggested as a means to go behind the appearance of the particular statute in order to go to its real effect and thereby deter mine its proper classification for constitutional purposes. I do not think it can be seriously con tended that the regulation of open and close times for catching chinook salmon may constitute legis lation falling under a class of subject other than fisheries. Property and civil rights has been evoked but I fail to see which property right or other civil right is being regulated by the establishment of restrictions on fishing seasons, (if there is some thing like the right to fish in public waters inher-
ent in every citizen, as suggested by counsel, whether it be a right to fish for commercial pur poses or otherwise, it is certainly not a right falling under subsection 92(13)); nor has it been suggest ed that some other provincial head of power is invaded. Of course, it is the pursuit of allocative objectives in the management of the fisheries which is objected to, but such allocation, even if considered independantly of any idea of conserva tion, does not trench on any provincial power.
The power conferred on Parliament in subsec tion 91(12) of the Constitution Act, 1867 is not qualified, in my understanding, by any inherent condition that it be used to pursue some specific objectives and not others. Parliament may manage the fishery on social, economic or other grounds, either in conjunction with steps taken to conserve, protect, harvest the reserve or simply to carry out social, cultural or economic goals and policies. In fact, in my view, unless and until the party attack ing legislation on division of power grounds identi fies a possible trespass on a specific law making power of the other level of government, the pur pose for which a piece of legislation was passed is of no concern of the courts.
I must therefore express, with respect, my disa greement with the view taken by the learned Motions Judge. I do not think that the fishery officers' Public Notices can be said to be illegal for the reason that they were part of a legislative scheme adopted in pursuance not only of conserva tion purposes but also of allocative objectives founded on social and economic factors. The order quashing those Notices on the ground that they were unconstitutional is, in my view, unsustain- able. I would allow the appeal, set aside the order of the Trial Division and dismiss the application. I see no reason to deprive the appellants of their costs here and in the Court below.
URIE J.: I concur.
HUGESSEN J.: I concur.
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