José Pereira E. Hijos, S.A. v. Canada (Attorney General)

José Pereira E. Hijos, S.A. v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2005-07-26
Neutral citation
2005 FC 1011
File numbers
T-1602-95
Notes
Digest
Decision Content
Date: 20050726
Docket: T-1602-95
Citation: 2005 FC 1011
BETWEEN:
JOSE PEREIRA E. HIJOS, S.A.
and ENRIQUE DAVILA GONZALEZ
Plaintiffs
and
THE ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR JUDGMENT
GIBSON J.
INTRODUCTION
[1] On the 9th of March, 1995, at or about 18:15 (6:15 p.m.)[1], armed boarding parties from three (3) or four (4) Canadian vessels boarded the Spanish deep-sea freezer-trawler ESTAI (the "ESTAI") within the Northwest Atlantic Fisheries Organization ("NAFO") Regulatory Area, which is to say outside Canadian fishery waters or, put another way, on the high seas. The boarding parties, which may have included members of a Royal Canadian Mounted Police ("RCMP") emergency response team, arrested the ESTAI. They requested that the Master of the ESTAI cooperate and take his vessel to St. John's, Newfoundland. They advised him that if he did not cooperate, they would take his vessel to St. John's in any event. Enrique Davila Gonzalez ("Captain Davila"), a co-plaintiff and Master of the ESTAI, agreed to cooperate. The ESTAI, accompanied by a number of Canadian vessels, proceeded toward St. John's at full speed. The events of the 9th of March, 1995 leading up to the arrest of the ESTAI are of interest. Based on the testimony of the Master of one of the Canadian vessels taking part in the boarding and arrest, they will briefly be recited here.
[2] Very early on the morning of the 9th of March, 1995, the two hundred and five (205) foot Canadian fisheries patrol vessel Cape Roger, was steaming east in Canadian fishery waters in the NAFO Convention Area, close to the demarcation line between Canada's two hundred (200) mile fishery zone and waters outside that zone. For ease of reference, an outline map is attached to these reasons as Annex I.[2] The map depicts the east coast of Canada, and the Northern United States, the west coast of Greenland and the NAFO Convention Area of the adjacent seas, divided into fishery subareas. The map also indicates the outside limit of Canada's fishery zone. The Cape Roger was accompanied by the Leonard J. Cowley, another Canadian fisheries patrol vessel, the Sir Wilfrid Grenfell, a Canadian coastguard vessel, the Chebucto, a Canadian Department of Fisheries and Oceans vessel out of the Department's Maritime Region in Nova Scotia and the Terra Nova, a naval vessel, all apparently with the support of a Canadian reconnaissance aircraft.
[3] At or about 02:30 hours, the Cape Roger exited from NAFO's fishery subarea 3L inside Canadian fishery waters to the same fishery subarea outside Canada's fishery waters.
[4] By a rather circuitous route, the Cape Roger and accompanying vessels reached their target, then identified as the ESTAI, by about 13:52 hours. At that point in time, both the Canadian vessels and the ESTAI were in NAFO fishery subarea 3L and on the deep waters of Flemish Pass between Flemish Cap to the east and Canadian fishery waters to the west. The ESTAI was engaged in deep-water fishing for Greenland halibut[3] with its net extending behind it secured to the ESTAI by two (2) long lengths of heavy cable.
[5] More than an hour earlier, the Cape Roger had removed from its gun locker two (2) 50 calibre guns and two hundred (200) rounds of ammunition. The guns were mounted on the deck of the Cape Roger.
[6] By 13:58 hours, the Cape Roger was alongside, but at a safe distance from, the ESTAI. Its boarding craft, a "fast rescue craft" with a rigid hull, inflated collar and a one hundred and fifty (150) horsepower diesel engine, was in the water close alongside the Cape Roger. Not more than two (2) minutes later, the boarding craft, with an armed boarding team, was clear of the Cape Roger and on its way to the ESTAI. It arrived at the ESTAI within three (3) minutes and mounted its boarding ladder on the side of the ESTAI. There was no clear evidence before the Court that any prior warning of the proposed boarding had been given to the ESTAI.
[7] Boarding team members, of which there were either six (6) or eight (8), the evidence is unclear, wore floatation suits and Kevlar soft body armour. They were equipped with MP5 submachine guns or machine pistols, semi-automatic in operation and utilizing 9 millimetre ammunition.
[8] The boarding was resisted. Crew members of the ESTAI threw the boarding team's ladder back into the water, cut the warps (that is to say, the cables attaching the ESTAI's fishing net to the ship) and the ESTAI began to run.
[9] The Leonard J. Cowley was the first of the Canadian vessels to take off in hot pursuit of the ESTAI. At least the Sir Wilfrid Grenfell and the Cape Roger followed. The RCMP emergency response team on board the Sir Wilfrid Grenfell was requested to "take over" in the event of another attempted boarding. The course of the ESTAI and of the pursuing Canadian vessels was slightly south of east, that is to say, further out to sea.
[10] Sometime in the afternoon, the Cape Roger received a message from the ESTAI indicating that it, that is to say, the Cape Roger, was too close to the ESTAI and was putting the ESTAI and its crew in danger.
[11] By 16:00 hours, the chase was going on in dense fog. Other Spanish vessels were apparently attempting to obstruct the boarding and arrest of the ESTAI. By 17:00 hours, the ESTAI and pursuing vessels crossed into fishery subarea 3M. By 17:17 hours, the Leonard J. Cowley was "moving in" on the ESTAI. At 17:40 hours, the Sir Wilfrid Grenfell had activated its water cannon and directed its stream at the ESTAI. In later testimony, the Chief Engineer aboard the ESTAI testified that he feared that the effect would be to flood the engine room and frozen fish holds of the ESTAI. Perhaps at some risk to himself, to minimize the risk of flooding, the Chief Engineer secured hatches on deck that had been open.
[12] By 17:45 hours, the Cape Roger received authority to fire warning shots. It raised its "Lima" signal flag indicating an intention to board. Canadian vessels were manoeuvring at very close quarters. The Master of the Cape Roger, in his testimony, expressed retrospective concern about the risks that were being taken.
[13] At or about 17:50 hours, the ESTAI apparently advised the Canadian vessels that it was not going to stop. There may have been communication with the ESTAI from one of the Canadian vessels that had a Spanish interpreter on board. The ESTAI appealed to another vessel in the same general area that had a NAFO inspector on board. The NAFO inspector contacted one of the Canadian vessels to inquire what was going on. The Canadian vessel responded but provided no relevant information.
[14] At or about 17:57 hours, warning shots were fired from at least one of the Cape Roger's guns "across the bow", that is to say, in front of, not over, the bow of the ESTAI. When the guns and the remaining ammunition were returned to the Cape Roger's gun locker, it was determined that twenty-three (23) rounds had been fired.
[15] Following the warning shots, by approximately 18:00 hours, the ESTAI had stopped. Boarding craft and armed boarding teams were immediately mobilized on board and along side three (3) or four (4) of the Canadian ships. Armed boarding teams, perhaps including members of the RCMP emergency response team, were prepared and proceeded to the ESTAI, under the illumination of flares. They boarded without incident. As earlier indicated, the Captain of the ESTAI cooperated in turning his ship towards St. John's. Apparently the voyage to St. John's took place without animosity between the Spanish officers and crew members and the Canadian boarding team members that remained on board. Indeed, at the request of Captain Davila, shortly after the boarding, the Canadians put their guns away.
[16] The ESTAI and the Cape Roger, after sailing at a very slow pace through ice conditions, and in the company of at least some of the other Canadian vessels, arrived in St. John's on the afternoon of Sunday the 12th of March, 1995. More will be said about the short stay of the ESTAI, its Master and crew in St. John's and of discoveries and events following the return of the ESTAI to its home port of Vigo, Spain, later in these reasons.
[17] An index to the headings and subheadings used throughout these reasons is attached as Annex V.
THE STATEMENT OF CLAIM
[18] This action was commenced by Statement of Claim filed on behalf of the corporate owner of the ESTAI, and of its Master, Captain Davila, on the 28th of July, 1995. In the final iteration of the Statement of Claim, filed the 30th of April, 2003, the Plaintiffs state that:
- the first attempted boarding of the ESTAI by Canadian Fisheries Officers on the 9th of March, 1995 was unlawful in that the ESTAI was a Spanish ship in international waters and was clearly identified by flag, home port name and side number as being a Spanish ship;
- the pursuit of the ESTAI by the Cape Roger resulted in the Cape Roger coming "dangerously close" to the ESTAI, thus putting its crew in danger in an "unlawful" manner and constituted an "unlawful trespass" by the Defendant on the high seas;
- other Canadian vessels were involved in the "unlawful" pursuit in international waters, at times in dense fog, thus contributing to the danger;
- the "unlawful" use by the Defendant's vessel Sir Wilfrid Grenfell of its water cannon constituted an "unlawful trespass" against the Plaintiffs and their vessel ESTAI on the high seas;
- the gun-fire from the Cape Roger was "unlawful" and constituted a further trespass by the Defendant on the Plaintiffs and their vessel;
- the boarding at or about 18:15 hours by armed boarding teams constituted a further "unlawful trespass" on the high seas;
- the arrest of Captain Davila and of the ESTAI was "unlawful" as was the order directing the ESTAI to proceed to St. John's;
- the direction that the ESTAI be sailed through a field of "multi-year Arctic ice" over the objection of Captain Davila caused damage to the ESTAI;
- both the ESTAI and Captain Davila were not provided in St. John's with a reasonable time to instruct counsel concerning charges laid against them, contrary to paragraph 10(b) of the Canadian Charter of Rights and Freedoms[4] (the "Charter");
- Captain Davila, on Sunday afternoon, the 12th of March, 1995, while in St. John's was "...forced to walk through a gauntlet of hostile demonstrators who had remained behind after the conclusion of a public demonstration..." and during the course of the walk, was "...abused, jostled and subjected to obscenities and an assault was committed when eggs were thrown at [him]..." thus breaching a duty on the part of Canadian authorities to protect him; such breach of duty was compounded by negligent failure to make prior arrangements to have the Court House door unlocked, whereby the abuse, jostling, obscenities and assaults continued;
- the crew of the ESTAI was "unlawfully" evicted from the ESTAI resulting in damages to the Plaintiffs; and
- the Plaintiffs further suffered losses by reason of the requirement that bail be posted both in respect of Captain Davila and the ESTAI, by reason of the off-loading and retaining of frozen fish from the ESTAI and by the seizing of all ship's documents from the ESTAI. Further and other damages were suffered by the Plaintiffs by reason of the "unlawful" actions of the Defendant.
In addition, a claim under section 15 of the Charter was asserted on behalf of Captain Davila by reason of alleged discrimination "...on the basis of race and on the basis of national origin and on the basis of ethnic origin...".
[19] The Plaintiffs further assert in their statement of claim that regulations made by the Governor-in-Council on the 3rd of March, 1995,[5] "...making Spanish and Portuguese... vessels subject to Canadian Law on the high seas beyond the 200 mile limit [were] ultra vires the regulation making authority conferred on the Governor-in-Council by section 6 of the Coastal Fisheries Protection Act".[6] Interestingly, at least from this judge's perspective, the Plaintiffs do not challenge the jurisdiction of Parliament to enact amendments to the Coastal Fisheries Protection Act, including amendments to section 6, in the terms in which they were enacted in May of 1994. More will be said about this later in these reasons.
[20] Finally, the Plaintiffs allege that the Defendant engaged in improper activity in the councils of NAFO to, in my words, "set the stage" for the dramatic events of the 9th of March, 1995.
[21] In the result, the Plaintiffs seek special damages, general damages, punitive damages, aggravated damages, and interest "...upon maritime law principles or alternatively pursuant to applicable legislation." Finally, the Plaintiffs seek their costs of this action on a "solicitor and own client basis."
[22] The Plaintiffs served and filed a Notice of Constitutional Question in the following terms:
The Plaintiffs intend to question the constitutional validity, applicability or effect of Regulations made by the Governor-in-Council on March 3rd, 1995 purporting to regulate fishing activities of Spanish Fishing Vessels in International Waters beyond the 200 mile economic zone of Canada.
Only the Government of Newfoundland and Labrador indicated an interest in the question. Counsel on behalf of that Government appeared at the opening of trial and reserved the right to make submissions at the close of the trial. Counsel for the Government of Newfoundland and Labrador appeared when argument commenced following the closing of the evidentiary portion of the trial and withdrew his Government's interest in making submissions.
THE STATEMENT OF DEFENCE
[23] In his Amended Statement of Defence, filed the 22nd of May, 2003, the Defendant admitted certain of the facts alleged in the Plaintiffs' Further Amended Statement of Claim but more generally denied all of the remaining allegations contained therein. His Amended Statement of Defence concludes with a request that the Plaintiffs' claim be dismissed with costs.
THE STATEMENT OF AGREED FACTS
[24] On the 31st of December, 2004, counsel for the Plaintiff provided to the Court a "Trial Record" which included an Agreed Statement of Facts. For whatever reason, the Agreed Statement of Facts does not extend to all of the factual allegations contained in the Plaintiff's Further Amended Statement of Claim that were admitted to on the face of the Amended Statement of Defence. Nor does it extend to a range of Admissions apparently reflected in transcripts of examinations for discovery to which the Court was not taken during trial. Most if not all of the "Agreed Facts" are reflected in what follows in these reasons. Nonetheless, for ease of reference, the substance of the Agreed Statement of Facts is reproduced as Annex II to these reasons.
BACKGROUND
1) The Northwest Atlantic Fisheries Organization
[25] Canada is a "Contracting Party" to a Convention entitled Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries[7] (the "Convention"), "Done" at Ottawa on the 24th of October, 1978. Canada's Instrument of Ratification was deposited on the 30th of November, 1978 and the Convention came into force on the 1st of January 1979. Article II of the Convention provides for the establishment of the Northwest Atlantic Fisheries Organization with its headquarters at Dartmouth, Nova Scotia, "...or at such other place as may be decided by the General Council." At all times relevant to this action, NAFO's headquarters was at Dartmouth, Nova Scotia. Article II of the Convention reads in part as follows:
1. The Contracting Parties agree to establish and maintain an international organization whose object shall be to contribute through consultation and cooperation to the optimum utilization, rational management and conservation of the fishery resources of the Convention Area. This organization shall be known as the Northwest Atlantic Fisheries Organization, hereinafter referred to as "the Organization", and shall carry out the functions set forth in this Convention. [emphasis added]
[26] The preamble to the Convention recites the background to the Convention and emphasizes the objective of encouraging international cooperation and consultation with respect to fishery resources. It reads as follows:
The CONTRACTING PARTIES,
NOTING that the coastal States of the Northwest Atlantic have, in accordance with relevant principles of international law, extended their jurisdiction over the living resources of their adjacent waters to limits of up to two hundred nautical miles from the baselines from which the breadth of the territorial sea is measured, and exercise within these areas sovereign rights for the purpose of exploring and exploiting, conserving and managing these resources;
TAKING into account the work of the Third United Nations Conference on the Law of the Sea in the field of fisheries;
DESIRING to promote the conservation and optimum utilization of the fishery resources of the Northwest Atlantic area within a framework appropriate to the regime of extended coastal State jurisdiction over fisheries, and accordingly to encourage international cooperation and consultation with respect to these resources;
HAVE AGREED as follows: [emphasis added]
[27] "The Convention Area", that is to say the Area to which the Convention applies, is defined. By reference to Annex I to these reasons, it is the Area adjacent to the east coast of Canada and the northern United States as far south as 35 ° 00' north latitude and the eastern and southern coasts of Greenland and extending as far east as 42 ° 00' west longitude. The Convention Area is divided into seven (7) fishery subareas, each subdivided into a number of further subareas. The subareas where the events and activities here at issue took place are 3L, which is partly within Canadian fishery waters and partly outside those waters, and 3M, which is entirely outside Canadian fishery waters. The part of the Convention Area that, in the words of the Convention, "...lies beyond the areas in which coastal States exercise fisheries jurisdiction", is defined as "the Regulatory Area". Thus, certain of the events and activities described in the introduction to these reasons took place in the Regulatory Area.
[28] The Convention provides for the establishment, among other bodies, of a Scientific Council and a Fisheries Commission within NAFO. The functions of the Scientific Council include provision of a forum for consultation and cooperation among the Contracting Parties and the provision of scientific advice to "coastal States" and to the Fisheries Commission. The Fisheries Commission is responsible within NAFO for "...the management and conservation of the fishery resources of the Regulatory Area". In pursuance of that function it is responsible for the establishment of maximum quotas that limit the annual catch of various species of fish by Contracting Parties, and for the allocation of the established annual allowable catches, or quotas, to Contracting Parties.
[29] Article XI.4 of the Convention provides the following guidance to the Fisheries Commission:
Proposals adopted by the Commission for the allocation of catches in the Regulatory Area shall take into account the interests of Commission members whose vessels have traditionally fished within that Area, and, in the allocation of catches from the Grand Banks and Flemish Cap, Commission members shall give special consideration to the Contracting Party whose coastal communities are primarily dependent on fishing for stocks related to these fishing banks and which has undertaken extensive efforts to ensure the conservation of such stocks through international action, in particular, by providing surveillance and inspection of international fisheries on these banks under an international scheme of joint enforcement.
[emphasis added]
[30] In the years up to and including 1994, no total allowable catch ("TAC") or quota was established by the Fisheries Commission with respect to Greenland halibut. Thus, no quota allocations with respect to Greenland halibut were made to the Contracting Parties. All of that changed for 1995, thus setting the stage for the actions and events giving rise to this litigation.
[31] Quota allocations adopted by the Fisheries Commission are, on adoption, simply "proposals". The Convention provides that such proposals shall be transmitted by the Executive Secretary of NAFO to all Contracting Parties with the document of transmission indicating the date of transmittal. Unless an objection to any such proposal is taken by a Contracting Party, the proposal becomes a measure binding on Contracting Parties on a date of entry into force determined by the Commission.
[32] Article XII of the Convention provides for the filing of objections to allocation proposals and for their impact. It reads in part as follows:
If any Commission member presents to the Executive Secretary an objection to a proposal within sixty days of the date of transmittal specified in the notification of the proposal by the Executive Secretary, the proposal shall not become a binding measure until the expiration of forty days following the date of transmittal specified in the notification of that objection to the Contracting Parties. Thereupon any other Commission member may similarly object prior to the expiration of the additional forty-day period, or within thirty days after the date of transmittal specified in the notification to the Contracting Parties of any objection presented within that additional forty-day period, whichever shall be the later. The proposal shall then become a measure binding on all Contracting Parties, except those which have presented objections, at the end of the extended period or periods for objecting. If, however, at the end of such extended period or periods, objections have been presented and maintained by a majority of Commission members, the proposal shall not become a binding measure, unless any or all of the Commission members nevertheless agree as among themselves to be bound by it on an agreed date.
[33] Finally for the purposes of this matter, the Convention provides for a scheme of joint international enforcement within the Regulatory Area. Article XVIII of the Convention reads as follows:
The Contracting Parties agree to maintain in force and to implement within the Regulatory Area a scheme of joint international enforcement as applicable pursuant to Article XXIII or as modified by measures referred to in paragraph 5 of Article XI. This scheme shall include provision for reciprocal rights of boarding and inspection by the Contracting Parties and for flag State prosecution and sanctions on the basis of evidence resulting from such boardings and inspections. A report of such prosecutions and sanctions imposed shall be included in the annual statement referred to in Article XVII.
[emphasis added]
[34] The European Economic Community, later the European Union, was a Contracting Party to the convention from its coming into force, as was Spain. In 1986, Spain joined the European Economic Community and its participation in NAFO was thereafter subsumed in that of the Community, although it remained responsible for prosecution of infractions of NAFO rules and regulations alleged to have been committed by its vessels.[8]
2) The United Nations Convention on the Law of the Sea, 1982
[35] The preamble to the NAFO Convention notes that it was made taking into account the work of the Third United Nations Conference on the Law of the Sea in the field of fisheries. The Defendant's sole witness at trial, Mr. Bob Applebaum, testified that he was heavily involved on behalf of Canada in the United Nations Conference on the Law of the Sea which extended through the 1970's and the early 1980's and gave rise to the United Nations Convention on the Law of the Sea of 1982. Mr. Applebaum further testified that he was particularly involved with the negotiations that gave rise to the adoption of the 200 nautical mile Exclusive Economic Zone, earlier referred in these reasons, in the case of Canada, as the area of Canada's fishery waters or fishery zone. Mr. Applebaum testified that Canada adopted a 200 mile limit, apparently in anticipation of the results of the United Nations Conference. More will be said on this subject later in these reasons in the commentary on Canada's Coastal Fisheries Protection Act.
[36] The United Nations Convention on the Law of the Sea, 1982, was signed by Canada and subsequently ratified by Canada at a point in time that was after the time of the events and activities here at issue.
[37] In his testimony, Mr. Applebaum made specific reference to the following provisions of the Convention:[9]
- Article 3 providing that every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with the Convention;
- Part V dealing with States' Exclusive Economic Zones and, more particularly, Article 57 providing that a State's Exclusive Economic Zone may not extend beyond 200 nautical miles from the baselines from which the breadth of the State's territorial sea is measured; and
- Articles 87 to 90 dealing with freedom of the high seas. Article 87 to 90 are of particular relevance to this matter and are in the following terms:
Article 87
Freedom of the high seas 1. The high seas are open of all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States :
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard to the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.
Article 88
Reservation of the high seas for peaceful purposes The high seas shall be reserved for peaceful purposes.
Article 89
Invalidity of claims of sovereignty over the high seas No State may validly purport to subject any part of the high seas to it's sovereignty.
Article 90
Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.
3) The Coastal Fisheries Protection Act and Relevant Regulations[10]
[38] Prior to May 25, 1994 when amendments to the Coastal Fisheries Protection Act (the "Act") came into effect, the Act purported to regulate the activities of foreign fishing vessels, and some of the activities of Canadian fishing vessels that interrelated with the activities of foreign fishing vessels, in Canadian fishery waters. The Act defined "Canadian fisheries waters" to mean "...all waters in the fishing zones of Canada, all waters in the territorial sea of Canada and all internal waters of Canada". While the terms "waters in the fishing zones of Canada", "waters in the territorial sea of Canada" and "internal waters of Canada" are not defined in the Act, I interpret the term "Canadian fisheries waters" to include all coastal waters of Canada out to the 200 mile limit of Canada's economic zone or fishery waters or zone.
[39] By the amendments to the Act[11] that came into force the 25th of May, 1994, one aspect of the Act was substantially broadened in scope. Definitions of the expressions "NAFO Regulatory Area" and "straddling stock" were added to section 2 of the Act. The new definition "NAFO Regulatory Area" was consistent with what has been described earlier in these reasons as to the scope of that expression. "Straddling Stock" was defined to mean a "prescribed stock of fish" which is to say any stock of fish prescribed by regulations made by the Governor-in-Council under the authority of the Act. It was not in dispute before me that Greenland halibut could be described as a "straddling stock" given that, historically, Greenland halibut have been fished within Canadian fisheries waters and that, for some years prior to 1995, Greenland halibut were extensively fished in the deep waters within the NAFO Regulatory Area.
[40] The following sections were added to the Act:
5.1 Parliament, recognizing
(a) that straddling stocks on the Grand Banks of Newfoundland are a major renewable world food source having provided a livelihood for centuries to fishers,
(b) that those stocks are threatened with extinction,
(c) that there is an urgent need for all fishing vessels to comply in both Canadian fisheries waters and the NAFO Regulatory Area with sound conservation and management measures for those stocks, notably those measures that are taken under the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, done at Ottawa on October 24, 1978, Canada Treaty Series 1979 No. 11, and
(d) that some foreign fishing vessels continue to fish for those stocks in the NAFO Regulatory Area in a manner that undermines the effectiveness of sound conservation and management measures, declares that the purpose of section 5.2 is to enable Canada to take urgent action necessary to prevent further destruction of those stocks and to permit their rebuilding, while continuing to seek effective international solutions to the situation referred to in paragraph (d).
5.1 Le Parlement, constatant que les stocks chevauchants du Grand Banc de Terre-Neuve constituent une importante source mondiale renouvelable de nourriture ayant assuré la subsistance des pêcheurs durant des siècles, que ces stocks sont maintenant menacés d'extinction, qu'il est absolument nécessaire que les bateaux de pêche se conforment, tant dans les eaux de pêche canadiennes que dans la zone de réglementation de l'OPAN, aux mesures valables de conservation et de gestion de ces stocks, notamment celles prises sous le régime de la Convention sur la future coopération multilatérale dans les pêches de l'Atlantique nord-ouest, faite à Ottawa le 24 octobre 1978 et figurant au numéro 11 du Recueil des traités du Canada (1979), et que certains bateaux de pêche étrangers continuent d'exploiter ces stocks dans la zone de réglementation de l'OPAN d'une manière qui compromet l'efficacité de ces mesures, déclare que l'article 5.2 a pour but de permettre au Canada de prendre les mesures d'urgence nécessaires pour mettre un terme à la destruction de ces stocks et les reconstituer tout en poursuivant ses efforts sur le plan international en vue de trouver une solution au problème de l'exploitation indue par les bateaux de pêche étrangers.
5.2 No person, being aboard a foreign fishing vessel of a prescribed class, shall, in the NAFO Regulatory Area, fish or prepare to fish for a straddling stock in contravention of any of the prescribed conservation and management measures.
[emphasis added]
5.2 Il est interdit aux personnes se trouvant à bord d'un bateau de pêche étranger d'une classe réglementaire de pêcher, ou de se préparer à pêcher, dans la zone de réglementation de l'OPAN, des stocks chevauchants en contravention avec les mesures de conservation et de gestion prévues par les règlements.
[je sousligne]
From the closing words of section 5.1 that have been emphasized, I am satisfied that it can be assumed that Parliament was aware that Canada had agreed to Article XVIII of the Convention providing for "...flag State prosecution and sanctions..." for offending fishing vessels in the NAFO Regulatory Area and that the provisions of the new section 5.2 were, arguably at least, inconsistent with the international regulatory scheme.
[41] The regulation making authority of the Governor-in-Council was substantially broadened by the adding of the following paragraphs to section 6 of the Act:
(b.1) prescribing as a straddling stock, for the purposes of section 5.2, any stock of fish that occurs both within Canadian fisheries waters and in an area beyond and adjacent to Canadian fisheries waters;
(b.2) prescribing any class of foreign fishing vessel for the purposes of section 5.2;
(b.3) prescribing, for the purposes of section 5.2,
(i) any measure for the conservation and management of any straddling stock to be complied with by persons aboard a foreign fishing vessel of a prescribed class in order to ensure that the foreign fishing vessel does not engage in any activity that undermines the effectiveness of conservation and management measures for any straddling stock that are taken under the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, done at Ottawa on October 24, 1978, Canada Treaty Series 1979 No. 11, or
(ii) any other measure for the conservation and management of any straddling stock to be complied with by persons aboard a foreign fishing vessel of a prescribed class;
(b.4) prescribing the manner in which and the extent to which a protection officer is permitted to use the force referred to in section 8.1;
(b.5) prescribing forms that may be used instead of the forms set out in Part XXVIII of the Criminal Code in proceedings against fishing vessels under this Act or the Fisheries Act;
b.1) déterminer comme stock chevauchant, pour l'application de l'article 5.2, les stocks de poissons qui se situent de part et d'autre de la limite des eaux de pêche canadiennes;
b.2) déterminer, pour l'application de l'article 5.2, les classes de bateaux de pêche étrangers;
b.3) déterminer, pour l'application de l'article 5.2, les mesures de conservation et de gestion des stocks chevauchants qui doivent être observées par les personnes se trouvant à bord d'un bateau de pêche étranger d'une classe réglementaire, notamment celles ayant pour but d'éviter que le bateau se livre à une activité qui compromette l'efficacité des mesures de conservation et de gestion des stocks chevauchants prises sous le régime de la convention mentionnée à l'article 5.1;
b.4) fixer les modalités et les limites prévues à l'article 8.1;
b.5) déterminer les formules à utiliser, au lieu de celles de la partie XXVIII du Code criminel, dans les poursuites contre les bateaux de pêche prévues par la présente loi ou la Loi sur les pêches;
[42] Authority to board and inspect fishing vessels, without restrictions as to nationality, was afforded to "protection officers" in respect of ships found, not only within Canadian fisheries waters, but also within the NAFO Regulatory Area. "Protection officers" was already defined to mean fishery officers and members of the RCMP, as well as any other person authorized by the Governor-in-Council to enforce the Act. If it was believed on reasonable grounds to be necessary, the use of force was authorized. The offence and punishment provisions of the Act were broadened and consequential amendments were made extending the application of Canadian criminal law.
[43] A summary of the amendments to the Act was published in the relevant volume of the Statutes of Canada together with the amending act. That summary was in the following terms:
SUMMARY
This enactment amends the Coastal Fisheries Protection Act to prohibit classes of foreign fishing vessels from fishing for straddling stocks in the NAFO Regulatory Area in contravention of certain conservation and management measures.
The Regulatory Area of the Northwest Atlantic Fisheries Organization ("NAFO") is established by Article I of the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, done at Ottawa on October 24, 1978, Canada Treaty Series 1979 No. 11. The definition "NAFO Regulatory Area" in this enactment is based on that Article.
Moreover, this enactment adds provisions empowering the Governor in Council to make regulations providing for the classes of foreign fishing vessels to which the prohibition would apply, the species of straddling stocks in respect of which the prohibition would apply and the conservation and management measures with which the vessels must comply. These measures may be taken by the Governor in Council to ensure that the effectiveness of NAFO conservation and management measures is not undermined.
This enactment also amends the enforcement provisions of the Coastal Fisheries Protection Act in support of the prohibition.
SOMMAIRE
Le texte modifie la Loi sur la protection des pêches côtières en vue d'interdire aux bateaux de pêche étrangers d'une classe réglementaire de pêcher, dans la zone de réglementation de l'Organisation des pêches de l'Atlantique du nord-ouest (OPAN), des stocks chevauchants en contravention avec certaines mesures de conservation et de gestion.
La zone de réglementation de l'OPAN est établie par l'article I de la Convention sur la future coopération multilatérale dans les pêches de l'Atlantique nord-ouest, faite à Ottawa le 24 octobre 1978 et figurant au numéro 11 du Recueil des traités du Canada (1979). La définition de « zone de réglementation de l'OPAN » est basée sur cet article.
En outre, le texte ajoute des dispositions en vue de permettre au gouverneur en conseil de prendre des règlements déterminant les stocks chevauchants faisant l'objet de l'interdiction et désignant les classes de bateaux de pêche étrangers visées par cette interdiction ainsi que les mesures de conservation et de gestion que ces bateaux doivent observer. Ces mesures peuvent être ainsi prises pour éviter que l'efficacité des mesures de conservation et de gestion de l'OPA ne soit compromise.
Le texte modifie également, pour l'application de l'interdiction, les dispositions relatives à la mise en oeuvre de la Loi sur la protection des pêches côtières.
[44] The Parliamentary history relating to the amending act is of interest. Although it was not referred to in argument before the Court, at the close of that argument, the Court commented on the failure to refer to it and sought leave of counsel to itself refer to the Parliamentary history. Counsel did not object. The Court acknowledges that "Parliamentary history" is of limited evidentiary value and should be relied upon with caution. That being said, I am satisfied that, for the purposes of this matter, it is instructive background.
[45] Bill C-29, the Bill proposing the foregoing amendments to the Act, proceeded through the House of Commons with remarkable speed. It was apparently given first reading on the 10th of May, 1994. On the 11th of May, it came on for second reading. Following a rather extensive speech by the then Minister of Fisheries and Oceans, the Bill not only received second reading, consideration in Committee of the Whole, report from Committee, report stage, concurrence in the report of the Committee, but also third reading and passage.[12] The Minister's speech made no reference to vessels bearing flags of NAFO states. Rather, after speaking of the sacrifices made by Canadian fishers for conservation purposes, in a fairly typical passage, the Minister stated:
...and even as that sacrifice is made to restore this resource for future generations, watching a handful of what we call flag of convenience pirate vessels targeting those same endangered species that we Canadians have set aside to be saved to rebuild this fragile resource. I say to the pirates their day has come and we are going to stop that kind of predatory action. We are going to stop that kind of exploitation.[13]
Vessels flying either of the flags of Spain or Portugal could hardly have been considered to be "...flag of convenience pirate v