Anglehart v. Canada

Anglehart v. Canada
Court (s) Database
Federal Court Decisions
Date
2016-10-19
Neutral citation
2016 FC 1159
File numbers
T-1271-07
Notes
A correction was made on May 8, 2017.
Reported Decision
Decision Content
Date: 20161019
Docket: T-1271-07
Citation: 2016 FC 1159
[ENGLISH TRANSLATION]
Ottawa, Ontario, October 19, 2016
PRESENT: The Honourable Madam Justice Gagné
BETWEEN:
ROLAND ANGLEHART JR. ET AL.
Plaintiffs
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
JUDGMENT AND REASONS
Table of Contents
I. Overview.. 3
II. Background and history. 3
A. 1975 – Change from an unregulated fishery to a limited entry fishery. 4
B. 1990 – Change from a limited entry fishery to an IQ regime. 5
C. Crisis in the groundfish and lobster fisheries—temporary wealth and resource sharing 8
D. The Marshall decision. 16
E. Urgent demands from Area 18 crab fishers. 19
F. New permanent access. 21
G. The negotiations leading to the 2003 fishing plan. 22
H. The 2003 fishing plan. 25
I. The use of part of the TAC to fund DFO activities. 27
J. The legal proceedings. 29
III. Issues and remedies sought in this phase of the case. 29
IV. Analysis. 36
A. Preliminary issue: Objection to the filing of the Crown’s notice of
appeal in Haché v. The Queen, 2006-3736(IT)G (Exhibit 601) and
of Appendix A of the outline of the plaintiffs’ submissions in
Canada v. Haché, A-44-10 (Exhibit 615) 36
B. Nature of the rights and interests alleged by the plaintiffs underlying
each cause of action. 38
(1) Parties’ positions. 38
(2) Relevant legislation. 39
(3) Saulnier and Haché. 43
(4) Nature of the rights under a fishing licence. 47
(5) Plaintiffs’ legitimate expectations. 50
C. First cause of action: Expropriation. 57
D. Second cause of action: Unjust enrichment 65
(1) Applicable law.. 65
(2) Enrichment of DFO.. 67
(3) Impoverishment of plaintiffs. 70
(4) The absence of juristic reason for the enrichment 72
E. Third cause of action: Misfeasance in public office. 72
(1) Components of the tort 74
(2) Financing of DFO’s activities from 2003 to 2006. 76
(3) Financing rationalization programs for other fisheries. 79
(4) Share of the TAC allotted to fishers in area 18. 80
(5) 4000 mt reduction in TAC in 2003. 84
(6) Release signed in 2006. 92
F. Conclusion. 93
I. Overview [1] To the delight of seafood lovers, the commercial snow crab fishery has been operating in the southern Gulf of St. Lawrence since the 1960s, and it is doing well. This fishery has been regulated since 1975, first under a limited entry regime and later under an individual quota [IQ] regime.
[2] The plaintiffs are 97 of the 130 members of the traditional mid-shore fleet of crab fishers in Area 12 in the southern Gulf of St. Lawrence—or their assigns or management companies, as applicable—who fished under the limited entry regime and were subsequently assigned an IQ. They are residents of New Brunswick, Quebec, Nova Scotia, and Prince Edward Island.
[3] They are suing Her Majesty the Queen in Right of Canada for actions performed by the Minister of Fisheries and Oceans [the Minister] and by Fisheries and Oceans Canada officials [DFO] from 2003 to 2006, which allegedly reduced their IQ by 35%.
[4] Under a July 23, 2008, order rendered by Richard Morneau, Prothonotary, the proceedings were divided into two phases; the first will examine the general issues involving all plaintiffs, and the second will examine issues pertaining to each of the plaintiffs individually. I am examining the first of these two phases, and I must rule on the nature of the plaintiffs’ rights, on whether they have legitimate expectations, and on the three causes of action the plaintiffs refer to: expropriation, unjust enrichment, and misfeasance in public office.
II. Background and history A. 1975 – Change from an unregulated fishery to a limited entry fishery [5] The first recorded snow crab landings in the southern Gulf of St. Lawrence occurred in the 1960s. Until 1975, this fishery was open to all and subject to very few constraints. Commercial snow crab harvesters had no quotas, and the fishery at the time was a so-called competitive fishery, meaning that every fisher attempted to catch as much crab as possible before the end of the fishing season.
[6] In November 1973, the Department of the Environment, which was responsible for fisheries and ocean sciences at the time, announced the adoption of a limited entry regime for the snow crab fishery in the southern Gulf of St. Lawrence. A snow crab advisory committee was established, made up of fishers, producers (or processing plant owners), federal officials, and provincial officials from the affected provinces. The first meeting took place in May 1974. When the limited entry regime came into effect in 1975, the minister implemented the advisory committee’s recommendation that, from 1975 until snow crab stocks were able to support greater fishing effort, only the fishers who fished snow crab on board a vessel in at least one year from 1970 to 1974 inclusively would be eligible for a licence.
[7] There were two objectives to this regime: to control the fishing effort in this area, and thus conserve the stock status, and to ensure the profitability of the fleet.
[8] From 1975 to 1989, the snow crab fishery in area 12 remained a competitive fishery. However, starting in 1984, DFO set an annual total allowable catch [TAC], which it announced at the start of each fishing season. The impact of the competitive fishery regime in combination with a TAC was felt, and certain fishers acquired more advanced vessels and gear so they could fish more of the TAC; it was a race for the resource.
[9] Starting in 1987, crab landings dropped. They fell to 7,900 tonnes in 1989, and there was a significant resurgence of white or soft-shell crab. Since soft-shell crabs are moulting and have no commercial value, Area 12 fishers asked DFO to close the fishing season ahead of schedule, and they went home early.
[10] Around the same time, DFO held industry consultations with the different fishers’ associations in preparation for establishing a new commercial fishing regime in Eastern Canada. This regime came into effect in January 1989. One of its provisions was to limit the number of fishing licences based on biological and economic considerations.
B. 1990 – Change from a limited entry fishery to an IQ regime [11] In the winter after the 1989 fishing season, fishers’ associations and the snow crab advisory committee held numerous meetings to discuss the crisis facing the industry that year. Several options were put forth, including a complete closure of the fishery for the 1990 season. They also discussed additional management measures to implement to better conserve the biomass and avoid future collapse.
[12] The minister at the time also decided to take the opportunity to introduce one of the recommendations from a 1982 report entitled Navigating Troubled Waters – A New Policy for the Atlantic Fisheries – Highlights and Recommendations – Report of the Task Force on Atlantic Fisheries (Exhibit 27) [commonly known as the Kirby Report], which was to implement an IQ regime. IQs were already being used in other fisheries and were seen as a responsible, sustainable way to manage the resource.
[13] This option was presented in advisory committee meetings, and the idea caught on. Representatives of the Association des pêcheurs professionnels acadiens [APPA] quickly spoke in favour of IQs. However, representatives of the Association des pêcheurs de crabe du Québec [APCQ] and the Association des crabiers et hauturiers du nord-est du Nouveau-Brunswick [ACHNE] were more reluctant. Many APCQ and ACHNE fishers had recently purchased larger vessels and were quite successful in the competitive fishery. They were less than pleased about having their catches limited by an IQ.
[14] The supporters of the IQ regime were able to convince the opponents that the new regime was the only way to ensure the short-term profitability of the fleet, and that it would not only allow there to be a 1990 fishing season, but also create a more structured fishing season and better promote the long-term conservation of the biomass. For APPA, this system also protected New Brunswick’s historical shares, which were being overtaken by Quebec.
[15] In fact, the sharing formula was subject to more debate than the IQ regime itself. The more successful fishers wanted the IQ to be set based on historical catches, whereas the others (mainly the APPA members) supported equally distributed IQs. Several sharing formulae were examined before Minister Bernard Valcourt announced an 80–20 formula in the 1990 Fishing Plan (Exhibit 87): 80% of the TAC would be shared equally, and 20% would be distributed based on the historical catches of each fisher.
[16] In the 1990 Fishing Plan, the minister also announced the licence condition that traditional fishers in Area 12 would have to use the services of dockside monitors and at-sea observers. Dockside monitors are responsible for weighing landings to ensure that fishers do not go over their IQs, and at-sea observers accompany the crew and take samples to determine catch composition—size, claw height, percentage of soft-shell crabs, etc. The data collected were forwarded to DFO’s science department.
[17] Another consequence of the 1989 crisis was that DFO obtained additional financing from the Treasury Board for 1990–1995 and adopted the Atlantic Fisheries Adjustment Program [AFAP], under which a scientific vessel was purchased for snow crab and an annual trawl survey program and soft-shell crab protocol were implemented.
[18] Trawl surveys are performed using a net attached to a vessel. This net scrapes the sea floor at a width of 20 metres. Catches are sampled, and the data collected are forwarded to DFO’s science department. Biologists consider trawl surveys one of the best techniques in the world for estimating crab biomass. They are used to study not only the biological development of crab—reproduction, growth, diseases, etc.—but also various trends. Since trawl surveys are performed after the fishing season, the commercial biomass for the following season can be estimated, as can the increase in juvenile crabs, which will make up the commercial biomass in years to come.
[19] The soft-shell crab protocol adopted in 1990 divided Area 12 into four large sectors. If the percentage of soft-shell crabs in a given sector went over 20%, the sector was closed for the rest of the season. White or soft-shell crabs are crabs that have not yet stopped growing. They generally moult once a year. After growing for about nine years, crabs moult one last time and develop claws at the ends of their front legs. Only adult male crabs may be fished. They reach commercial size one year after their last moult. They may be fished in the following three to four years, and then they become mossy—and lower quality—and die.
[20] Traditional fishers praised AFAP because it contributed to knowledge of the life history of snow crab, provided information on the location of the biomass, and could be used to anticipate catches in future years.
[21] The traditional fleet in Area 12 had 130 fishers in 1990, and the TAC, or the portion of the TAC reserved for this fleet, is still distributed among them according to the same formula or IQ regime.
C. Crisis in the groundfish and lobster fisheries—temporary wealth and resource sharing [22] The 1989 crisis and the knowledge acquired through AFAP made fishers feel accountable and take an interest in resource management.
[23] As for DFO, it was facing new challenges in the 1990s: the collapse of the Atlantic groundfish fishery, the emergence of Aboriginal claims to commercial fisheries, the collapse of the biomass in certain fisheries combined with an abundance of mollusks and crustaceans (especially crab, since crab biomass benefited from new management measures, and shrimp), and the new government’s significant budget cuts.
[24] DFO officials and traditional fishers in Area 12 developed close collaboration. Overall, fishers were quite happy with the IQ system, which was a significant culture change. People were now working together; departures from the dock were more structured and there was room for uncertainty. One of the members of ACHNE apparently understood the benefits of this new regime when his vessel broke down at the start of the season. He had time to repair it before going out to catch his IQ. This would not have been possible under a competitive regime.
[25] From 1990 to 1995, the TAC grew considerably, even though the exploitation rate set by DFO remained conservative. The exploitation rate is the percentage of the biomass that makes up the TAC. On average, it was 38.5% in the 1990s. Below is the annual TAC in metric tonnes (mt) for the crab fishery in the first half of the decade:
- 1990: 7,000 mt
- 1991: 10,000 mt
- 1992: 11,200 mt
- 1993: 14,500 mt
- 1994: 20,000 mt
- 1995: 20,000 mt
[26] In these same years, lobster and groundfish stocks decreased, leading to a moratorium on the cod fishery in 1993. At the time, everyone believed, incorrectly, that the moratorium would be short lived.
[27] DFO was under increasing pressure to issue new crab licences to cod fishers affected by this situation. As they were part of the same fishers’ associations at the time, cod fishers asked for help directly from their crab fisher colleagues.
[28] Traditional fishers in Area 12 were nervous; there were rumours about new licences being issued in 1993. According to Gastien Godin, then Director General of APPA, they were developing several plans to [translation] “protect their territory.” One of the ways to do so, in their opinion, was to enter into a long-term agreement with DFO.
[29] In 1993, Minister John Crosbie issued a five-year fishing plan that could be modified if the annual TAC increased by more than 10% or there were significant changes in the crab fishery (Exhibit 122). Traditional fishers were reassured, since they did not believe the TAC would increase by more than 10%.
[30] Over the course of 1994, tensions rose in fishers’ associations representing cod and crab fishers. Scientists announced a significant increase in biomass, and crab fishers feared that new licences would be issued. To avoid increasing the fishing effort, traditional fishers offered to share the wealth rather than the resource. Their proposal, which DFO accepted, was to issue a licence to fish 2,000 mt of crab to a newly created entity. Since it would not own any vessels, this entity would have the 2,000 mt of crab fished by crab fishers it designated, which would pay part of their resulting profits to a fund for the cod fishers. The plan was that, of the anticipated value of $1.50 per pound, 30 cents would go to the crab fisher and the rest to the fund. As it happened, the price per pound was $2.60, and the crab fisher kept $1.40 while $1.20 was added to the fund.
[31] AFAP expired after the 1994 fishing season, and DFO began discussions with traditional fishers for them to take over and, through a joint project agreement, continue to fund the trawl survey and soft-shell crab protocol. Given the provisions of the Fisheries Act, RSC 1985, c F-14 (which will be discussed below), DFO informed fishers that it could not tie financing of scientific activities to resource sharing, as they wanted, and that financing could not be conditional on an agreement by DFO to stabilize fishing effort (Exhibit 162.1).
[32] Under these circumstances, the government tabled Bill C-115 to modify the Fisheries Act (Exhibit 639) so that DFO could enter into long-term joint project agreements with different fisheries, in which it could associate co-management of the fishery with the minister’s discretion under the Act. However, neither this bill nor bill C-62, tabled in 1996, was ever adopted in the House of Commons.
[33] The “Joint agreement between the snow crab fishing industry and Fisheries and Oceans Canada on stock assessment of the snow crab and other related research in the Southern Gulf of St. Lawrence (areas 12, 18, 19 and 25/26)” [1995 Joint Project Agreement] was entered into on March 3, 1995 (Exhibit 171). One of the provisions of this five-year agreement was that, for 1995, crab fishers would contribute $600,000 to scientific research on snow crab.
[34] Crab fishers saw a clear advantage to continuing to work with DFO and maintaining the annual trawl survey, since DFO’s results are used to determine the future biomass and crab concentration areas. They also thought their partnership with DFO would contribute to finding an acceptable fishing plan for 1995 and avoid sharing the resource. They attempted to submit a unanimous proposal to their cod fisher colleagues for a new wealth sharing formula for the 1995 fishing season, but were unable to. Although ACHNE members did not give their consent, a proposal of this type was submitted to the fishers’ associations and DFO at the March 30, 1995, advisory committee meeting.
[35] The crab fishers’ optimism was short lived, because at this advisory committee meeting, several attendees were requesting new access to the snow crab fishery and asking for resource sharing rather than wealth sharing. After heated argument, representatives of certain crab fishers’ associations demanded that DFO throw the new access applicants out of the meeting. According to Gastien Godin, the [translation] “harm had already been done,” and Minister Brian Tobin rejected their proposal.
[36] Minister Tobin announced his fishing plan on April 13, 1995, and for the first time, he temporarily shared the resource. Out of a TAC of 20,000 mt, 15,500 mt were assigned to traditional fishers in Area 12, and 4,500 mt were assigned to new access applicants (Exhibits 178, 179 and 180). Although the minister specified that this was a temporary, one-time measure to help resolve the groundfish crisis, traditional fishers were greatly disappointed, and they withdrew from the 1995 Joint Project Agreement.
[37] After the fishing season, discussions continued on a new long-term agreement between crab fishers and DFO. The context was favourable, since the government had tabled a second bill, mentioned above, to modify the Fisheries Act and allow DFO to associate resource management with the partnerships it entered into with different fishers’ associations (Exhibit 641).
[38] On February 8, 1996, DFO and crab fishers entered into a five-year agreement in principle with three components: i) resource sharing above a defined gross income level for traditional fishers; ii) the creation of a fund for non-traditional fishers to rationalize their fishery; and, iii) the participation of traditional fishers in financing DFO activities (Exhibits 214, 216.1 and 217).
[39] However, since Bill C-62 was not in effect—in fact, it died on the order paper after the 1997 election—DFO did not ratify the agreement in principle with crab fishers. As long as there is no change to the Fisheries Act, DFO is forced to use a two-pronged approach: implementing an integrated fisheries management plan that complies with the minister’s discretion under the Fisheries Act, and, if applicable, a joint project agreement to fund DFO activities subject to the Financial Administration Act, RSC 1985, c F-11.
[40] On April 18, 1996, Minister Fred Mifflin announced the 1996 fishing plan, which maintained the temporary sharing of the resource (Exhibit 226). Once again, traditional fishers were very disappointed, and plant workers joined them in violent protests. Plant workers feared that the temporary sharing would mean landings would go to other plants, and that as a result they would not be able to work enough hours to qualify for employment insurance. The fishers refused to go to sea. They filed an application for an interim injunction to prevent the fishing plan from being executed. The application was rejected, and the fishers discontinued their request with the defendant’s consent.
[41] Following a meeting between traditional fishers, Minister Mifflin, and New Brunswick Premier Frank McKenna, a resolution was found and the fishing season began, quite late, at the end of May. The parties agreed to enter into a multi-year agreement for the start of the 1997 fishing season.
[42] While this multi-year agreement was in the works, DFO and crab fishers in areas 25 and 26, two coastal areas north of Prince Edward Island, were entering into discussions to integrate these areas into Area 12. Fishers on Prince Edward Island were struggling, and they wanted DFO to eliminate the border. According to DFO scientists, areas 12, 25 and 26, as well as areas 18 and 19, two coastal areas north of Nova Scotia, were all part of the same biological snow crab unit, and there was no logical reason to separate them. This issue was therefore included in discussions on entering into a multi-year agreement, and Area 12 crab fishers accepted the integration as an acceptable compromise.
[43] On May 1, 1997, DFO and traditional crab fishers in areas 12, 25 and 26 entered into a “Five-Year Co-Management Agreement” (Exhibits 241 and 250) [1997 Joint Project Agreement]. Robert Haché, a representative of the Association des crabiers acadiens Inc. [ACA], confirmed that although fishers did not truly negotiate this agreement, it [translation] “suited them to a certain point.” The document was divided into two separate parts with the explicit goal of complying with the provisions of the Fisheries Act that, despite two bills tabled by the government, had still not been amended.
[44] The first part of this agreement contained the Integrated Fisheries Management Plan, meaning the management measures themselves, which set out the TAC and IQs, the implementation of an ice committee, the season opening and closing dates, and soft-shell crab monitoring. An improved soft-shell crab monitoring protocol was introduced in this agreement. Rather than dividing Area 12 into four large sectors, areas 12, 25 and 26 were divided into 280 grids (there were 350 grids in the entire southern Gulf). If the percentage of soft-shell crabs in a given grid went over 20%, the grid was closed for the rest of the season.
[45] Also in this Five-Year Co-Management Agreement, crab fishers agreed for the first time to temporary resource sharing. A sharing formula was adopted wherein the resource would be shared only when profits surpassed $500,000 for the traditional mid-shore fleet. The first 2,000 metric tonnes above this amount would be assigned to non-traditional fishers, and the excess would be shared 60–40 between traditional crab fishers (60%) and the new access fleet (40%). As a result, temporary resource sharing occurred in 1995, 1996, 1997 and 2001.
[46] Also under the Five-Year Co-Management Agreement, a Solidarity Fund was implemented to help processing plant workers. This was an initiative of the traditional fishers, with the support of DFO, under which they would contribute 15 cents per pound of crab fished to a fund to provide work to plant workers who needed it to complete the required number of weeks to be eligible for employment insurance. At the time, some saw this as a hidden tax imposed by the Government of New Brunswick, while others saw it as a way for crab fishers to honour a promise made to plant workers in exchange for their support in the 1996 conflict. Either way, the auditor general’s second report in 1999 (Exhibit 642) contains a section entitled The Solidarity Funds—Imposition of a Fee That May Not Be Contemplated in Legislation. It indicates that it is inappropriate for DFO to ensure that a given fisher has contributed to the Solidarity Fund before issuing their licence conditions for the year and thus their IQ.
[47] The second part of the Five-Year Co-Management Agreement contained the Joint Project Agreement and set the financial and non-financial contributions of DFO and fishers’ associations to certain DFO activities.
[48] According to Pat Chamut, Assistant Deputy Minister—Fisheries Management, DFO, the 1997 Joint Project Agreement was an important part of the history of crab fishery management in Area 12, both because it ended the 1996 conflict and demonstrated the ability of DFO and crab fishers to work together to manage this fishery, and because it demonstrated that such a joint project agreement was possible without requiring modifications to the Fisheries Act. At least that was the belief at the time!
D. The Marshall decision [49] On September 17, 1999, the Supreme Court of Canada rendered its judgement in R v Marshall, [1993] 3 SCR 456. The Court affirmed the First Nations right stemming from treaties signed in 1760 and 1761 to practise commercial fishing in pursuit of a “moderate livelihood.”
[50] The Treasury Board allocated an initial budget of $160 million to implement a vast federal government initiative to integrate First Nations in Canada into the commercial fishery for all species [Marshall Initiative]. The initial phase of this initiative was completed in a few months, and DFO went back to the Treasury Board with a detailed plan including a comprehensive program for buying back licences from traditional fishers and a program to train First Nations in commercial fishing. DFO was allocated a budget of $500 million for this second phase of the Marshall Initiative, which spanned from 2000 to 2007.
[51] DFO decided to buy back licences rather than issue new licences. Everyone agreed that this was the most harmonious way to integrate First Nations into the commercial fisheries that had operated as limited entry fisheries for a number of years.
[52] DFO entered into intense negotiations with 33 First Nations in the Atlantic Region in order to come to agreements and allocate them a portion of the annual TAC of the various fisheries practised there. A number of them were especially interested in snow crab.
[53] Unfortunately for DFO, the buyback program did not meet its objectives for the crab fishery.
[54] First, since the program was not ready for the 2000 fishing season, fishers suggested DFO borrow a portion of their annual TAC to meet its commitments to First Nations and give this quota back to them in 2001, once the program was implemented. DFO accepted, and 1,060 mt of crab were taken off the TAC to be assigned to licences issued to members of First Nations. Starting in 2001, the tonnage allocated to First Nations and to temporary licences under the 1997 Joint Project Agreement was taken from the TAC before quotas were allocated to traditional fishers based on their IQs. From 1,060 mt, the amount was reduced to 911 mt and then 888 mt in later years. Finally, instead of this tonnage being returned to traditional fishers, they were compensated at $2.00 per pound under an agreement with DFO.
[55] Under its licence buyback program, DFO had to determine the value of a snow crab licence. Since the fishery became a limited entry fishery, the only way to enter it has been through succession or by acquiring an existing licence. DFO was aware of these transactions but not of the financial details. However, the ministère de l’Agriculture, des Pêcheries et de l’Alimentation du Québec [MAPAQ] had determined that a snow crab licence was worth $1,250,000.00 in 1999. Based on MAPAQ’s assessment, DFO’s initial offer to traditional crab fishers in 2000 was for $13,000 per metric tonne (equivalent to an average price per permit of $1.4 or $1.45 million). Since there was little interest in this offer, DFO quickly raised it to $18,000 per metric tonne. DFO was able to buy back one licence in 2000 and eight in 2001.
[56] In 2001, DFO was still 400 mt of snow crab short of meeting its commitments to First Nations. A committee was implemented to study this issue and, aware that the TAC was falling, traditional crab fishers suggested that DFO change the basis of its evaluation and use a percentage of the IQ rather than tonnage. DFO accepted and set its buyback price at $2.6 million per percentage point (see for example the offer in Exhibit 390).
[57] DFO was still unable to buy back any additional snow crab licences in 2002 and 2003. However, during this same period, certain sales by mutual agreement took place at a price higher than that offered by DFO. For example, Daniel Dubois, a fisher on the Gaspé Peninsula, received an offer of $3.5 million, which he refused.
[58] Faced with the failure of its program, DFO started to explore other options starting in 2003. One licence was bought back in 2004, and the program, which was initially supposed to end on March 31, 2004, was extended, first until March 31, 2006, and then until March 31, 2007. In 2005, negotiations with First Nations had come to a close. In 2006, DFO was still 10.8% short of its initial objective of 15.8% of the TAC of snow crab to meet its commitments, and it was unable to buy back any additional licences.
[59] DFO determined that $37.4 million was required to acquire this portion of the TAC from traditional fishers. DFO developed its final solution, and $37.4 million was taken from the balance of the budget allocated by the Treasury Board to the Marshall Initiative and distributed provincially, prorated for each fishers’ IQ. In 2007, all of the plaintiffs signed the financial aid agreement submitted by DFO (see for example Exhibit 606). In fact, DFO was buying back a part of each fishers’ IQ, and the fishers were giving up this part in future. These agreements contained a release, which will be discussed below.
E. Urgent demands from Area 18 crab fishers [60] Minister Robert Thibault took office on January 15, 2002.
[61] In the advisory committee meeting held on February 19, 2002, Fred Kennedy, spokesperson for the Area 18 Crab Fishermen’s Association, informed traditional crab fishers in Area 12 and DFO representatives that crab fishers in Area 18 were applying to be integrated into Area 12 with 5.32% of the TAC, the same percentage as awarded to area 25 and 26 crab fishers starting in 1997. Fred Kennedy had been working for this association since 1999, and he was chosen to represent it with DFO. In the 1990s, crab fishers in Area 18, who were struggling to catch their TAC, tried in vain to gain access to Area 12. Their objective was therefore to gain access to starting in the 2002 season. Traditional fishers in Area 12, who were not informed that Area 18 crab fishers would be participating in the February 19, 2002, advisory committee meeting, were opposed to this integration, especially at 5.32% of the TAC.
[62] Minister Thibault announced his first fishing plan on April 8, 2002 (Exhibits 360 and 365), and on April 12—since the 1997 Joint Project Agreement had expired the previous year—he signed a new Joint Project Agreement with fishers’ associations [2002 Joint Project Agreement] (Exhibit 366). This one-year agreement outlined the financial and non-financial participation of DFO and fishers’ associations in DFO activities related to the snow crab fishery; it said nothing about management of the fishery.
[63] Also in April 2002, Minister Thibault held an initial meeting with Fred Kennedy, who presented the demands of Area 18 crab fishers. This meeting was followed by a second meeting in July 2002, in Petit-de-Grat, Nova Scotia, attended by, on the one hand, Fred Kennedy, Bill Broffy, president of the Area 18 Crab Fishermen’s Association, and two Area 18 fishers, and on the other hand, Minister Thibault and his colleague Rodger Cuzner, a Liberal MP.
[64] At this time, Minister Thibault publicly confirmed that, barring a very convincing argument to the contrary, he was in favour of integrating Area 18 with Area 12.
[65] However, during the 2002 fishing season, when he was asked whether Area 18 crab fishers could have access to Area 12 to complete their landings for the current year, he went with the recommendation of his senior officials to not reopen the 2002 fishing plan, especially because the 2002 Joint Project Agreement, which bound DFO to the traditional crab fishers’ associations in Area 12, was in effect.
F. New permanent access [66] In 2002, Minister Thibault met with representatives of the Maritime Fishermen’s Union [MFU], who wanted the temporary access to the crab fishery that some of their lobster and groundfish fishers had to become permanent. The MFU planned to use the revenue generated by the snow crab fishery and other revenue to create all sorts of activities, such as ecotourism, to get workers out of the lobster and groundfish fisheries. This is known as rationalization, which means removing a number of fishers from a given fishery to ensure the profitability of those who remain. For Minister Thibault, the lobster and groundfish fishers’ associations wanted a permanent access regime in order to self-rationalize.
[67] In a meeting held in May 2002 in Shippagan, New Brunswick, between Minister Thibault and traditional crab fishers in Area 12, the minister expressed for the first time his desire to resolve once and for all the issue of new access to the snow crab fishery. The minister informed traditional crab fishers that he was prepared to sign a multi-year agreement with them, but that this agreement would have to include permanent access for lobster and groundfish fishers.
G. The negotiations leading to the 2003 fishing plan [68] In fall 2002, DFO asked traditional crab fishers whether they were interested in negotiating a multi-year agreement, and they were. Crab fishers nominated Rémi Bujold, consultant, to represent them, and Jim Jones, Regional Director General (DFO), was nominated as chief negotiator for DFO.
[69] The first negotiation meeting was held on December 16, 2002. At the start of the meeting, Jim Jones informed fishers that the minister wanted permanent access and that they would discuss not the principle itself but the level of access. Crab fishers were still unsure what was meant by permanent sharing, but for Jim Jones, it was clear: it meant a constant share every year for the new access fleet. The Marshall Initiative and the integration of Area 18 were also discussed, and crab fishers agreed with DFO to submit an initial multi-year agreement proposal.
[70] After this first meeting, Minister Thibault wrote to Fred Kennedy, inviting him to meet with Area 12 fishers to explain his point of view. However, he informed him that he found 5.32% high, since historically, catches by fishers in areas 25 and 26 were higher than those in Area 18, and could not be used as a reference point.
[71] On January 20, 2003, crab fishers submitted their agreement proposal, which included three years of co-management (Exhibits 405.2 and 678). They also suggested sharing the resource as follows: the first 20,000 metric tonnes would go to traditional crab fishers (this number would include the First Nations’ share), the next 2,000 metric tonnes would go to new access fishers, and the excess, if there was any, would be shared with 70% going to traditional crab fishers and 30% to new access fishers. This proposal completely rejected the integration of Area 18.
[72] The second negotiation meeting was held on January 24, 2003. In the morning, Minister Thibault was at the mid-shore conference, and his main topic of discussion was his desire to implement permanent resource sharing in the crab fishery. The minister set the tone for the negotiation meeting that was held that afternoon. All issues were discussed, and Jim Jones reacted to the January 20 proposal. He clearly stated that the issue of access to the resource was a problem. The meeting did not go especially well, but the parties still hoped to arrive at an agreement before the fishing plan was announced.
[73] The third meeting was held on February 14, 2003. Jim Jones repeated that the minister was committed to implementing a permanent resource sharing regime; Dominic Leblanc, MP for Beauséjour, had even announced this a few days before the meeting. Jim Jones stated for the first time that the objective was for 10 to 20% of the TAC to go to the new access fleet. The Marshall Initiative was also a significant issue at this meeting, and there was concern about the lack of success of the licence buyback program.
[74] On February 17, 2003, Jim Jones wrote to Rémi Bujold, repeating that he was concerned that crab fishers’ position on permanent sharing had not changed (Exhibit 412). On March 10, 2003, he repeated this again when he informed crab fishers that he could not discuss their January 20 proposal until they made progress on the crucial issue of resource sharing (Exhibit 421).
[75] After this third meeting, crab fishers held a press conference, which, according to Jim Jones, further damaged the tone of negotiations.
[76] The final meeting was held on March 25, 2003. At the start, Jim Jones informed participants that he intended to give DFO’s position on the January 20, 2003, proposal and deliver a verbal counter-proposal to the crab fishers. He confirmed that DFO was in agreement with all aspects of the proposal pertaining to the crab fishers’ financing of its activities. However, this proposal did not meet the minister’s objectives for permanent sharing and the integration of Area 18. He informed them that the only item he was able to discuss with them was the percentage of the TAC that would be allocated to new access applicants and Area 18 crab fishers. At the end of the meeting, Robert Haché asked Jim Jones what DFO’s counter-proposal had in it for them, to which Jim Jones answered, the possibility of implementing an Individual Transferable Quota [ITQ] regime. If crab fishing businesses were no longer profitable under the new measures, this type of regime would allow them to buy a portion of another crab fisher’s IQ to increase their income.
[77] No progress was made at this meeting. Jim Jones suggested that if Rémi Bujold was able to get crab fishers to agree to permanent sharing of 10% of the TAC, he would try to convince the minister. He also suggested that crab fishers meet with the minister to attempt to find a resolution.
[78] A meeting was scheduled for April 8, but Monique Baker, Crustacean Management Officer (Gulf Region) with DFO, did not wait for this meeting and started drafting the decision note to the minister in preparation for the 2003 fishing plan (Exhibit 440).
[79] On April 2, 2003, Rémi Bujold wrote to the association representatives that negotiations had failed (for example, Exhibits 425 and 426.1). He also restated his concern about their lack of desire to truly negotiate.
[80] At the April 8, 2003, meeting, Minister Thibault repeated that there would be permanent sharing and that crab fishers would have to accept this for productive discussions to be able to occur. He informed that initially, quotas would be issued to fishers’ associations, which would distribute them to their members, but eventually, he planned to implement an ITQ regime. He believed that the transferability would allow fishers to recover some of the lost quota. Fishers, however, did not draw the same conclusions.
H. The 2003 fishing plan [81] On Friday, May 2, 2003, the minister announced his “Three-Year Snow Crab Management Plan for the Southern Gulf” (Exhibits 441 and 443). This plan integrated Area 18 into Area 12, except for a buffer zone along the Area 19 boundary, and assigned 4.7081% of the TAC of the new combined area to Area 18 fishers. It also reserved 15% of the TAC for new access fishers’ associations for the three years covered by the fishing plan, and stated that the purpose of this sharing was to support rationalization. However, the TAC and management measures would be set every year. For 2003, the minister set the TAC at 17,148 mt; 11,702 mt were allocated to traditional fishers in Area 12 (including the former areas 25 and 26), 578 mt were allocated to fishers in Area 18, 2,701 mt were allocated to First Nations, and 2,167 mt were allocated to new access associations and f