Nunavut Wildlife Management Board v. Canada (Fisheries and Oceans)

Nunavut Wildlife Management Board v. Canada (Fisheries and Oceans)
Court (s) Database
Federal Court Decisions
Date
2009-01-07
Neutral citation
2009 FC 16
File numbers
T-426-08
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20090107
Docket: T-426-08
Citation: 2009 FC 16
Ottawa, Ontario, January 7, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
NUNAVUT WILDLIFE MANAGEMENT BOARD
Applicant
and
MINISTER OF FISHERIES AND OCEANS,
BARRY GROUP INCORPORATED,
SEAFREEZ FOODS INC.,
CLEARWATER SEAFOOD LIMITED PARTNERSHIP, and
LABRADOR FISHERMEN’S UNION SHRIMP COMPANY
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant, the Nunavut Wildlife Management Board (NWMB), seeks judicial review of a decision dated January 30, 2008 by the respondent Minister of Fisheries and Oceans approving the permanent re-allocations of 1900 metric tonnes of quota for turbot for the offshore fisheries areas adjoining the marine areas of the Nunavut Settlement Area (NSA).
[2] The respondent Minister approved the transfer of the quota allocation from the respondent Seafreez Foods Inc., owned by the respondent Barry Group Incorporated, to the respondents Clearwater Seafood Limited Partnership and Labrador Fisherman’s Union Shrimp Company. These later companies paid the Barry Group $10 million and $1.8 million respectively for the quota transferred.
[3] This application seeks to set aside the approval of the transfers because the Minister did not honour Canada’s treaty obligations under the Nunavut Land Claims Agreement (NLCA or Settlement Agreement) to consult with the applicant and give Nunavut interests “special consideration” and “fair consideration” when re-allocating quota adjacent to the NSA.
FACTS
The Nunavut Land Claims Agreement
[4] In 1993, the Inuit of the NSA and Canada executed the NLCA, which was ratified by Parliament in law pursuant to the Nunavut Land Claims Agreement Act, S.C. 1993, c. 29. In exchange for the rights and benefits set out in the NLCA, the Inuit agreed to surrender all their aboriginal claims, rights, title and interest in and to lands and waters anywhere within Canada and adjacent offshore areas.
[5] The Preamble to the 1993 Settlement Agreement sets out the following background facts, amongst others:
· Canada recognizes existing Aboriginal rights and is prepared to enter into treaties with Aboriginal peoples to affirm those rights;
· Canada desired to negotiate a Settlement Agreement with the Inuit whereby the Inuit would receive defined rights and benefits in exchange for surrender of their land claims and assertion of an Aboriginal title; and
· Canada recognized the contributions of the Inuit to Canada’s sovereignty in the Arctic.
The Court notes that Canada’s right to allocate fishing quota in the North Atlantic Ocean off the coast of the Nunavut emanates from Canada’s sovereignty in the Arctic, which relates to the Inuit presence in the area.
[6] Under the NLCA, a number of land, water and resource management tribunals were created. These tribunals operate as institutions of public government and are composed of an equal number of Inuit and government appointees.
[7] The NCLA has the following objectives:
1) to provide for certainty and clarity of rights to ownership and use of lands and resources, and of rights for Inuit to participate in decision-making concerning the use, management and conservation of land, water and resources, including the offshore;
2) to provide Inuit with wildlife harvesting rights and rights to participate in decision-making concerning wildlife harvesting;
3) to provide Inuit with financial compensation and means of participating in economic opportunities; and
4) to encourage self-reliance and the cultural and social well-being of Inuit.
The Applicant
[8] The NWMB is a public institution created under the NLCA. It is based in Iqualuit, Nunavut, and is composed of nine members; four appointed by each of the four Designated Inuit Organizations; four appointed by the Governor-in-Council on the advice of the Minister; and one appointed by the Commissioner-in-Executive-Council. The NWMB is the main instrument of wildlife management in the NSA and the main regulator of access to wildlife. It exercises authority in the marine environment adjacent to the NSA, including Division 0B, where the turbot reallocations that are the subject of this application took place.
The Respondents
[9] The applicant named five respondents in this case: the Minister of Fisheries and Oceans, and the companies Barry Group Incorporated (Barry Group), Seafreez Food Inc. (Seafreez), Clearwater Seafood Limited Partnership (Clearwater), and Labrador Fishermen’s Union Shrimp Company (Labrador Shrimp Co.). Three of the respondents made submissions before this Court: the Minister, and the two companies that acquired quota allocations in the relevant transfers, Clearwater and Labrador Shrimp Co.
Clearwater
[10] Clearwater is a limited partnership through its previous legal incarnations and has been fishing for turbot in Division 0B since the early 1990s under the “Ground Fish Development Program.” Through joint-venture agreements with the Inuit, Clearwater trained Nunavut fisherman with the necessary skills and experience to operate fishing vessels in the Arctic waters.
[11] Clearwater entered an agreement to purchase 1,650t of turbot quota from Seafreez for $10 million in 2007. After doing its due diligence, Clearwater did not identify any claims or other obstruction by any parties in Nunavut, including the applicant, to such a transfer. The Minister approved this transfer in his January 30, 2008 decision.
Labrador Shrimp Co.
[12] Labrador Shrimp Co. is a co-operative of 400 fishermen of southern Labrador, which historically have fished a portion of the Division 0B turbot quota and, pursuant to the Minister’s January 30, 2008 decision, purchased 250t of the turbot quota in Division 0B from Seafreez.
[13] The general manager for the Labrador Shrimp Co., Mr. Gilbert Linstead, deposed in an affidavit that no notice, constructive or otherwise had been received from any party, particularly the applicant, that they had any objection to the transfer. In his affidavit, Mr Linstead testified about the history of temporary transfers between the parties for the turbot quota in Division 0B and about the “undue hardship”, which the Labrador Shrimp Co. would incur if the transfer is set aside.
Barry Group and Seafreez
[14] The respondents Barry Group and Seafreez were not represented at the hearing. Seafreez, which owned the quota that was transferred to Clearwater and Labrador Shrimp Co., was purchased by Barry Group.
Relevant Marine Areas
[15] The relevant marine areas in this case are defined in three separate ways:
1. under the Nunavut Land Claims Agreement;
2. under the Northwest Atlantic Fisheries Organization Convention; and
3. under the NSA waters referred to the NLCA.
[16] The definitions section of the NLCA defines “Zone I” as the waters of Davis Strait and Baffin Bay north of 61° latitude subject to Canada’s jurisdiction seaward of the Territorial Sea boundary.
[17] The waters of the North Atlantic adjacent to Nunavut’s Baffin Island contain Greenland halibut, commonly called “turbot”, in sufficient numbers to sustain a commercial fishing industry. Canada shares the turbot stock with Greenland. It is managed on the basis of sub-areas established by the Northwest Atlantic Fisheries Organization (NAFO) through the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries. NAFO sub-area 0 is on the Canadian side of the line equidistant from Canada’s and Greenland’s 200-mile limits. Sub-area 0 is further divided into Division 0A in the north and Division 0B in the south. The Minister decides annually the Canada quota for Divisions 0A and 0B, and the allocation among different groups. The fishing quotas allocated to the companies in this case are in the sub-area 0B of the North Atlantic international waters beyond Canada’s 12 mile territorial sea to where Greenland controls the international waters.
[18] Sub-Area 0 also contains the NSA waters, which are waters on the landward side of the outer limit of the 12-mile territorial sea along the Nunavut coastline. Divisions 0A and 0B are outside the NSA waters. “Zone 1” in the NLCA refers to Divisions 0A and 0B minus the territorial waters, i.e. the NSA waters.
Affidavit Evidence of the Applicant
History of Consultations
[19] The evidence of the applicant consisted of the Affidavit of Mr. Michael D’Eça, the applicant’s lawyer since 1995. Mr. D’Eça states that the respondent Minister has consistently sought the applicant’s advice pursuant to section 15.3.4 of the Settlement Agreement on all decisions regarding the harvesting of fish in the North Atlantic off the shore of Nunavut. He provided nine examples in the current fiscal year when the respondent Minister sought the advice of the applicant with respect to issues involving the fishery. The issues on which the NWMB was consulted pursuant to Article 15.3.4 during the 2007-8 fiscal year include: the proposed establishment of Enterprise Allocations in the NAFO Division 0B competitive turbot fishery, guaranteeing a specific percentage of the formerly competitive allocation in order to reduce over-harvesting; the proposed Fishery Management Plan Greenland Halibut NAFO Sub-area 0 2006-2008; and a proposal to develop a closed area in NAFO Division 0A for the preservation of deep sea corals and narwhal.
[20] The affidavit also discussed the “consultations” between DFO and the applicant leading to the Minister’s decision to approve the transfer of the quota allocations in this case. This evidence is referred to below. Mr D’Eça provided information on the development of the fishing industry in the relevant marine areas, which is set out below.
The NAFO Sub-Area 0 Turbot Fishery
[21] The Nunavut Inuit began fishing turbot in NAFO Division 0B, within the NSA, in 1985. Prior to 1990, the applicant states that Nunavut Inuit were virtually the only Canadian fishers to harvest turbot in Sub-Area 0. The Inuit did not have access to groundfish licenses, boats or financing, and fished in winter only using hand-held longline fishing gear.
[22] In 1990, the Minister established the “Groundfish Developmental Program” to encourage harvesting of underutilized groundfish stocks. The program provided access opportunities in Division 0B, primarily to existing groundfish license-holders owning vessels and with processing plants in their communities. These include the companies with company allocations in sub-area 0B. At the time, the Inuit had no licenses, vessels or processing plants.
[23] In 1990, 5,400t of turbot were allocated to southern fishers, and 6,600t to foreign countries in Division 0B. The Nunavut Inuit applied under the program and were allocated 500t for their winter fishery. By 1994, the Total Allowable Catch (“TAC”) for Division 0B had been reduced to 5,500t and the allocation to Inuit had climbed to 1,400t. That amount was raised by a further 100t in 1996, providing Inuit with a 27.3% share of the Division 0B TAC. In 2005, an additional 500t was allocated to the community of Pangnirtung, raising Nunavut’s overall share in Division 0B to 33.3%.
Provincial access to fishery resource
[24] A Federal-Provincial Fisheries Committee Working Group was set up in 1995 to determine the provincial shares of groundfish from 1979-1991 in order to determine the historical resource access to the Atlantic Fishery by fishing enterprises. The report stated that adjacent fishers normally receive 80 to 95% of the allocations. With respect to the Northwest Territories (NWT) the report stated:
A review of historic sharing of fisheries resources must also identify a circumstance when resources have not been shared. During the entire period of this historic shares model, access to groundfish resources, in both traditional species and un-exploited stocks, have been denied to NWT applicants on grounds of policy, management structures and exclusionary application criteria. (Applicant’s Record, p. 33).
Nunavut access to fishery resource
[25] In 1995, the Minister established a 300t exploratory turbot quota for Nunavut fishers in Division 0A. This amount was increased to 4,000t in 2002, and rose to 6,500t by 2006.
[26] In June of 2001, the Minister established the Independent Panel on Access Criteria (IPAC) with the mandate to focus on issues governing access to particular fisheries. The IPAC Report, released in March 2002, stated:
It is clear that Nunavut does not enjoy the same level of access to its adjacent fisheries as do the Atlantic provinces. The Panel is of the view that every effort must be made to remedy this anomalous situation. In keeping with the spirit of the Nunavut Land Claims Agreement Act and the fair and consistent application of the adjacency principle, the Panel recommends that no additional access should be granted to non-Nunavut interests in waters adjacent to the territory until Nunavut has achieved access to a major share of its adjacent fishery resources. (Applicant’s Record, p. 34).
(Emphasis added)
[27] The Minister formally accepted this recommendation in November 2002. The Minister’s November 8, 2002 Response to the Report of the Independent Panel on Access Criteria for the Atlantic Coast Commercial Fishery states:
This recommendation as it pertains to new access is accepted.
…
In 1997, as part of a 5-year turbot management plan, a commitment was made to allocate Nunavut 50% of any increase in Subarea 0 (either Division A or B) turbot quota. There have been two quota increases since then, both in Division 0A. Nunavut received 100% of these increases on both occasions, resulting in Nunavut having the major share of turbot (58%) in subarea 0 in 2002. Further increases will be provided within the spirit of this recommendation.
…
Fulfilment of this recommendation will not affect the current status of other participants in these fisheries. Other issues relating to Nunavut’s share or allocation of fisheries resources adjacent to the Territory will be addressed through other processes
[28] Mr. D’Eça states that the OB quota allocated to the Nunavut Inuit is an insufficient quantity to form the critical mass necessary for vessel ownership by Inuit. The only alternative to vessel ownership is to enter into royalty charters with those who have their own vessels and crews. The Inuit receive a small fraction of what could be obtained if the catch were directly harvested and processed by the Inuit themselves. The quota for the Inuit in 0B is currently too small to support Inuit fishers purchasing their own vessel and having their own crew.
Affidavit Evidence of the Respondent Minister
[29] The evidence of the Minister consisted of three affidavits:
1. Mr. Barry Rashotte, Acting Director-General of the Resource Management Directorate in the Department of Fisheries and Oceans;
2. Mr. Stefan Romberg, a Resource Management Officer with the Resource Management Directorate and until March 31, 2008, a Fisheries Management Biologist in the Central and Artic Region of the Department based in Iqualuit, Nunavut; and
3. Mr. Keith Pelley, the Acting Area Director, Eastern Artic Area, of the Department of Fisheries and Oceans.
I. Affidavit of Mr. Barry Rashotte
[30] Mr. Rashotte deposed that he is responsible for developing national policies on fishery management, fish licensing, and allocation of fishing quotas. He provided information relating the history of the turbot fishery in the Arctic waters between Nunavut and Greenland, the overall total allocable catch for the area and the historic allocation of the quota for the turbot fishery in the area. At the moment, Nunavut interests have 68% of the total Canadian turbot quota in areas 0A and 0B, not including the Nunavut settlement area, which is the 12 miles of the North Atlantic Ocean off the coast of Nunavut.
[31] Mr. Rashotte set out the comprehensive policy resulting from the history, which policy includes:
1. no new quota would be granted to non-Nunavut interests until the Nunavut has achieved access to a major share of the fishery resources adjacent to Nunavut;
2. as a result the Nunavut people have received 100% of all increases for turbot quotas in these areas since 2002; and
3. granting Nunavut interests all increases will “not affect the current status of other participants in these fisheries”.
[32] As a result, the increases in Canadian quota for turbot since 2002 has been given to Nunavut interests, and there has been no increase in the number of licences issued to non-Nunavut interests since that time. The other participants in the area 0B turbot fishery have not been affected and have maintained their historic quota allocations.
[33] Participants in the commercial fishery have historically been allowed to transfer, either on a temporary or permanent basis, their allocations for turbot. Such transfers have allowed for the “rationalization of the industry and more efficient operations”. Mr. Rashotte deposed at paragraph 26 that:
… In 2006, the NWMB was consulted on those Guidelines (Atlantic Canada Ground Fish Transfer Guidelines).
[34] The approval of the Minister dated January 30, 2008 for the transfers of the turbot quota did not affect the overall quota allocation or add any new commercial fishing interest to the turbot fishery in Area 0B. Mr. Rashotte deposed at paragraph 30 that:
The re-allocation decisions did not alter the ability of Nunavut interests to approach existing licence holders to seek arrangements to re-allocate turbot quota to Nunavut interest to the extent that such arrangements may be possible.
II. Affidavit of Stefan Romberg
Actual consultations with the applicant about the transfers in issue
[35] The deponent states that the request for the transfer from Seafreez to Clearwater was received on January 11, 2008. On January 15th he telephoned the Director of Fisheries of the Nunavut Government in response to which the Nunavut Government sent a letter opposing the transfer to non-Nunavut interests. The letter stated that only 27% of the Canadian turbot quota in Area 0B is currently allocated to Nunavut interests, and that transferring the quota to non-Nunavut interests does not address this inequity. The Government of Nunavut requested a special meeting with the Department of Fisheries and Oceans on this issue.
[36] Mr. Romberg also telephoned the applicant on the same date and left a voicemail message and requested the applicant’s comments. Not having received a response, the next day the deponent sent an e-mail to the applicant asking for comments from the applicant. Again, the deponent did not receive any response and on January 17th spoke by telephone with the applicant. The applicant requested a “formal letter” requesting comments, which was sent the next day.
Actual consultations with the applicant on the “Draft Atlantic Canada Ground Fish Transfer Guidelines”
[37] The deponent consulted the applicant with respect to the abovementioned Guidelines for the quota allocation transfers for all fleets in the Atlantic areas including Area 0B. The deponent attended meetings on February 7th and 8th, 2006 with the Chairman of the applicant as well as two other members of the applicant’s staff and requested comments on the draft Guidelines by the end of April 2006. A further presentation from the Department of Fisheries and Oceans was made to the applicant at a public meeting of the applicant held in Nunavut on March 28th to 30th, 2006 on matters regarding the draft Guidelines for the transfer of quota. The deponent testifies at paragraph 13:
… no comments or concerns were ever raised with the department by the (applicant) members or staff with respect to the Guidelines … dealing with “permanent transfers” of quota allocations within the greater-than 100-foot fleet sector. The Guidelines indicate that such transfers may be applied for “without restriction”.
III. Affidavit of Keith Pelley
[38] Mr. Pelley deposes that on November 30, 2007 he telephoned Wayne Lynch, the Director of Fisheries and Sealing in the Nunavut Government about a transfer of permanent reallocation of turbot quota from Seafreez to the Labrador Shrimp Co. On the same day, the Nunavut Government objected to the transfer on the same basis as referred to above with respect to the transfer from Seafreez to Clearwater.
[39] The deponent also states that on November 30th, 2007 he telephoned the applicant about the transfer and asked for concerns or comments. No response was ever received from the applicant.
[40] Finally, the deponent states that the meeting on February 13, 2008, at which the applicant was informed of the Minister’s decision to approve the transfers, was not scheduled for the purpose of consulting the applicant with respect to the Minister’s decision, as the applicant contends. Mr. Pelley states at paragraph 6:
While the subject line of my e-mail states “Discussions with Nunavut on 0B transfers”, in fact the meeting had initially been scheduled with a number of interested parties including the Board in order to deal with another issue: the proposed conversion of 600 tonnes of competitive quota in Division 0B to enterprise allocations. My e-mail of January 24, 2008, simply confirms that the pre-arranged meeting of February 13, 2008, would go ahead, with the intention that the opportunity for “Discussions with Nunavut on 0B transfers” would also be provided. To the best of my recollection, I had no conversation with staff or Board members of the NWMB concerning that proposed agenda item prior to the February 13, 2008, meeting.
Decisions under review
[41] On January 30, 2008 an official for the Minister advised the respondent Barry Group Inc. in two separate letters that:
1. the Minister approved the Barry Group October 19, 2007 request for the transfer of 250t of 0B turbot company quota held by Seafreez to the Labrador Shrimp Company; and
2. the Minister approved the Barry Group January 11, 2008 request for the transfer of 1,650t of 0B turbot company quota held by Seafreez to the Clearwater Seafood Limited.
The Minister did not inform the applicant about these decisions or explain why the applicant’s representations were rejected.
Consultations prior to decision on January 30, 2008
[42] In response to Mr. Pelley’s November 30, 2007 telephone call to Mr. Lynch of the Nunavut government, Mr. Lynch wrote a letter to Mr. Rashotte that same day advising him of the concerns of the Nunavut government. The letter stated, inter alia:
As you are aware, Nunavut interests are limited to a 27% share of the Canadian turbot quota in 0B, an unfair situation that continues to this day. Redirecting this quota to non-Nunavut interests does nothing to address this inequity; … if Seafreez or any other outside interest is looking to transfer or sell part of its entire quota in Nunavut waters, their first recipients and offers should be to Nunavut interests, until this inequity is addressed.
The Government of Nunavut continues to request that DFO (the respondent Minister) respond to the numerous submissions made by the GN (Government of Nunavut), as well as addressing the recommendations of the Senate Standing Committee on Fisheries and Oceans, with respect to increasing Nunavut share of adjacent resources in 0B. Our position has been clearly outlined in several submissions, including the position paper on turbot.
[43] As noted above, Mr. Pelley telephoned the CEO of the applicant that same day to advise of the request for the transfer and asked if the applicant had any concerns. The CEO of the applicant said that he would have to discuss this issue with his staff and possibly have a discussion with the Board. Mr. Pelly deposed that no response was ever received from the applicant.
[44] As noted above, Mr. Romberg received a letter from the Nunavut government in response to his January 15, 2008, phone call, expressing the same concerns outlined in the November 30, 2007 letter.
[45] Mr. Romberg also telephoned the applicant that same day and, as stated above, eventually sent a formal letter to the applicant requesting its comments on January 18, 2008.
[46] The letter was signed by Mr. Rashotte and stated inter alia:
As you know, Article 15.3.4 of the Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada (Agreement) requires the Government to “seek advice of the NWMB with respect to any wildlife management decisions in Zones I and II which would affect the substance and value of the Inuit harvesting rights and opportunities within the marine areas of the Nunavut Settlement Area.
Therefore, I would appreciate if you could provide your comments on this request by January 21, 2008, so that a recommendation can be made to the Minister for his decision.
[47] The Court notes that January 18, 2008, the date of the letter was a Friday and the letter requested comments by January 21, 2008, which was the following Monday. The applicant prepared a response letter over that weekend and delivered a letter to the Minister on January 21 which stated:
1. the Minister’s decision is of great importance to Nunavut whose offshore turbot allocation in 0B remains at 27% or 1500 t, 400 t less than the proposed transfer;
2. Nunavut has been “struggling” to increase its share to the standard elsewhere in the country – 80 to 90%;
3. Nunavut is the poorest part of Canada;
4. to provide the Minister with proper advice, the applicant requires adequate notice and disclosure and a reasonable opportunity to respond. The receipt of this notice on January 18 without details, and with the request that comments be delivered the next business day, is not adequate notice or a reasonable opportunity to respond.
5. the applicant asked the Minister to postpone making the transfer decision until after adequate time for consultation between the applicant and the Minister’s officials.
[48] On January 24, 2008 the applicant received an e-mail invitation to a meeting from the respondent Minister’s officials. The meeting would take place on February 13, 2008 and would be “concerning discussions with Nunavut on 0B transfers”. The applicant expected that this meeting was in response to its January 21st letter requesting a full briefing and a full opportunity for consultations.
[49] At the February 13, 2008 meeting one of the issues was the proposed reallocation of 1900t of turbot. However, at the meeting the Minister’s officials advised that the transfer had been approved by the Minister on January 30, 2008. This was a surprise to the applicant. The applicant sent a letter to the Minister on February 18, 2008 expressing surprise and disappointment. The applicant stated that it did not understand why the Minister disregarded its obligations to consult over the applicant’s January 21st letter. The Minister did not respond to this February 18th letter.
[50] The letter dated January 18, 2008 from the Department of Fisheries and Oceans’ (DFO) Associate Director General for Resource Management regarding the proposed re-allocation of 1,900t of turbot from the company allocation in NAFO Division 0B acknowledged the matter fell within the ambit of Article 15.3.4 and requested comments from the applicant by January 21, 2008, the next business day.
[51] The applicant prepared a response letter over the weekend of January 19 and 20, which stated that the NWMB did not consider they had been given appropriate notice, disclosure or reasonable opportunity to respond. The letter stated that no background or details of the proposed re-allocation had been provided and expressed the opinion that the receipt of notice on the afternoon of the business day before the NWMB’s advice was expected to be delivered fell short of procedural fairness requirements. The applicant recommended that the Minister postpone making the decision until the DFO had fully briefed the applicant and the applicant had been given adequate time to consider the matter and render its advice.
[52] On January 24, 2008, the DFO’s Acting Director for the Eastern Artic sent an email invitation to a meeting scheduled for February 13, 2008 entitled “Discussions with Nunavut on 0B transfers.” The applicant assumed the meeting had been called in response to its request for a full briefing.
[53] The applicant states that internal DFO documents make clear that the meeting was planned by DFO officials for the purpose of consulting with the applicant. In particular, the applicant points to a memorandum to the Minister from Michelle D’Auray, Deputy Minister, dated January 28, 2008. The contents of this memorandum are outlined below. However, at the meeting, the DFO Associate Director General informed the applicant’s representatives that the Minister had made the decision to re-allocate the quota on January 30, 2008.
[54] The applicant sent a letter to the Minister on February 18, 2008, acknowledging the Minister’s right to make such a decision but expressing disappointment with the Minister for disregarding his obligations under Article 15.3.4 and the applicant’s January 21, 2008 letter. The applicant requested that that the Minister consider “appropriate mitigation measures.” The Minister did not respond to the letter.
[55] The respondent states that the Minister followed and applied the existing policy, by consulting the Applicant on the “general policy approach.” The respondent submits that the decision in the case was not one which required notice under the NLCA, given that it did not impact on the harvesting rights and opportunities of the Inuit in the NSA. The respondent states that because the effect of the decision to re-allocate quota between existing non-Nunavut license holders, it had no effect on the overall amount of quota or the quota provided to Nunavut interests and thus was not subject to any additional procedural requirements under the NLCA.
[56] The details of the re-allocation were not given in the January 18, 2008 letter or provided to the NWMB at any time prior to February 13, 2008. The re-allocation involved the transfer of 1,650t of the respondent Seafreez’s existing quota to the respondent Clearwater, and 250t to the respondent Labrador Shrimp Co. The respondent Barry Group Inc., the successor by amalgamation to Seafreez, requested approval of the transfer to Labrador Shrimp Co. from the Minister in October 2007. Approval of the transfer to Clearwater was requested on January 11, 2008.
The January 28, 2008 Memorandum to the Minister
[57] The applicant states that documents circulated internally within the Department make it clear that the Department acknowledged an extant duty to consult and initially planned to consult with the applicant at the February 13, 2008 meeting. The applicant refers to a January 28, 2008 memorandum from Michelle d’Auray, Deputy Minister dealing with the turbot quota transfer request from Seafreez to Labrador Shrimp Co. and Clearwater. In the summary, the memo stated:
0B turbot allocations were granted in the early 1990’s to entities which had participated in the development of this fishery. Twenty seven percent (27%) of the Canadian share of the Total Allowable Catch (TAC) of 5500t was reserved for Nunavut interests.
…
Department officials plan to meet with Nunavut interests on February 13, 2008 over turbot management in northern waters and Seafreez’ requests are likely going to be raised. Recommendations for decision on these requests will be forwarded to you following this meeting.
In the memo to the Minister under the heading “Background”, the Deputy Minister states:
…The Standing Senate Committee on Fisheries and Oceans’ 2004 Report recommends that DFO continue its policy to the effect that no new access should be provided in 0B turbot to non-Nunavut interests until Nunavut has achieved a major share of that fishery, as recommended by the Independent Panel on Access Criteria and accepted by the Minister in November 2002.
Consistent with the Government’s commitments in the Nunavut Land Claim Agreement, a letter has been sent to the Nunavut Wildlife Management Board (NWMB) (TAB – 3) to formally request their position on the transfer requests.
On November 30, 2007, Mr. Wayne Lynch, director of Fisheries and Sealing in the Nunavut government wrote (TAB – 4) to “strongly oppose any efforts to redirect any of [Seafreez company allocation] to non-Nunavut interests”. Mr. Lynch also mentions that if company allocations are to be transferred, “the first recipients and offers should be to Nunavut interests”.
Mr. Lynch wrote again January 15, 2008 (TAB – 5) to reiterate the Government of Nunavut’s position and to request a special meeting with DFO to address the question of Nunavut interests being involved in the transfer.
In its January 21, 2008 letter to you (TAB – 6), the NWMB emphasizes its struggle over the years to increase its share of 0B turbot, which they claim is directly linked to the development of a viable inshore fishery in Davis Strait and Baffin Bay. The NWMB expresses some displeasure with being given such a short notice to respond to a request for advice under provision of the Land Claim Agreement and recommends that you postpone making a decision on these transfers until they have the opportunity to adequately consider the transfer requests.
For the past three (3) years, Seefreez has transferred on a temporary basis 250t of 0B turbot to the LFUSC. Seafreez has also transferred 0B transferred 0B turbot to LFUSC in 2002-03 (200t) and 2004-05 (410t).
In 2007-08, Seafreez has transferred on a temporary basis 0B turbot to other companies for a total of 1,922t, while transfers from other companies to Seafreez accounted for 544t, for a net balance of 1,378t transferred from Seafreez to other companies. A table containing transfers from Seafreez to other companies and vice-versa in the last five (years) is attached for your information (TAB – 7).
Under the heading in the memo “Analysis/DFO comment” the memo stated:
No decision should be made on these two requests prior to the meeting.
The memorandum concludes with the heading:
Recommendation/Next Steps
Recommendations for decision on the two requests from the Barry Group will be forwarded to you following the February 13, 2008 meeting.
ISSUES
[58] The applicant raises three issues in this application:
Whether the minister breached an express statutory duty to seek and consider the advice of the Applicant under Article 15.3.4 of the NLCA by failing to provide the applicant with a meaningful opportunity to provide advice prior to rendering his decision;
Whether the Minister breached the duty of procedural fairness and natural justice by failing to provide the applicant with sufficient notice, disclosure and opportunity to respond; and
Whether the minister breached his constitutional common-law obligation to consult with the applicant in relation to the contemplated decision.
[59] The respondent Minister’s submissions respond to the above issues. The respondents Labrador Fisherman’s Union Shrimp Company (Labrador Shrimp Co.) and Clearwater Seafood Limited Partnership (Clearwater) raise four additional issues:
whether the affidavit of Mr. Michael D’Eca, submitted by the applicant, contains hearsay statements that do not identify the originating source of the documents and that should therefore be struck out;
whether the NWMB failed to file its application for judicial review within the 30 day time limitation set out in section 18.1(2) of the Federal Courts Act;
whether the NWMB has standing to apply for judicial review, and
4. If the Court finds that the Minister breached his statutory and common law duties to the applicant, should these respondents’ position as innocent third parties be considered in determining the appropriate remedy?
[60] I will deal with the issues in the following order:
1. Does the NWMB have standing to bring this application;
2. Did the NWMB fail to file the application within the 30-day time limit;
3. Does the applicant’s affidavit contain hearsay statements that should be struck out;
4. Did the Minister owe a statutory duty to the applicant under Article 15.3.4 or Article 15.3.7 of the NCLA and, if so, did the Minister breach this duty by failing to consult the applicant before approving the quota re-allocation;
5. Did the Minister breach the duty of procedural fairness and natural justice by failing to provide the applicant with sufficient notice, disclosure and opportunity to respond;
6. Did the Minister breach his constitutional or common-law obligation to consult with the applicant in relation to the contemplated decision; and
7. If so, what is the appropriate remedy in light of the position of the respondents Clearwater and Seafreez as third parties in this application?Xx
STANDARD OF REVIEW
[61] The applicant alleges that the Minister failed to comply with procedural requirements imposed by statute and by the common law and constitutional duty of fairness. A failure to comply with a statutory requirement is an error of law subject to a standard of correctness. Likewise, this Court has repeatedly found that the standard of review for breaches of procedural fairness is correctness: see, e.g., Martselos v. Salt River First Nation, 2008 FC 8, per Justice Beaudry at paragraph 18. The applicant and respondent agree that this is the applicable standard of review in this case.
ANALYSIS
Issue No. 1: Does the NWMB lack standing to bring this application for judicial review of the Minister’s decision to approve the quota re-allocation?
[62] The respondents Clearwater and Labrador Shrimp Co. submit that the applicant does not have standing to bring this application under Section 18.1 (1) of the Federal Courts Act, because it is not directly affected by the decision of the Minister.
[63] The respondent Clearwater submits that the applicant is not “directly affected” by the decision, because the decision in question was a re-allocation of existing quotas between Seafreez and Clearwater. According to the respondent, Seafreez and Clearwater are the only parties directly affected by the decision.
[64] The applicant’s primary substantive claim, that the Minister had a duty under Article 15.3.4 to consult the applicant, is based on the premise that the applicant’s rights were affected by the decision. The applicant submits that the decision was a “wildlife management decision” within the meaning of Article 15.3.4 and therefore should not have been made prior to soliciting, and considering, the advice of the applicant. Thus, if the applicant is successful on the substantive issue, they will have been found to be directly affected by the decision.
[65] In Canada (Royal Canadian Mounted Police Complaints Commission) v. Canada (Attorney General), 2005 FCA 213, 256 D.L.R. (4th) 577, the RCMP Complaints Commission brought an application for judicial review of a decision by the Commissioner that certain information sought by the Commission was subject to police informer privilege and could not be disclosed. Justice Létourneau held at paragraph 58:
Without a legal means of ensuring compliance with the Act by the Commissioner, the Commission becomes, for all practical purposes, hindered to the point of uselessness. I entirely agree with the following comments made by the learned judge when discussing the respondent's argument that the Commission has no power to initiate legal proceedings. At paragraphs 163 and 164 of his decision, he wrote:
If the Respondent is correct in this regard it would mean that, under ss. 45.41 of the RCMP Act, the Complaints Commission has no right to compel the RCMP Commissioner to provide either a copy of the complaint or any material relevant to that complaint. Just as a right without a remedy is no right at all, so an obligation without the means to compel it is no obligation at all. It would mean, in effect,