Native Council of Nova Scotia v. Canada (Attorney General)

Native Council of Nova Scotia v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2007-01-16
Neutral citation
2007 FC 45
File numbers
T-872-05
Decision Content
Date: 20070116
Docket: T-872-05
Citation: 2007 FC 45
BETWEEN:
THE NATIVE COUNCIL OF NOVA SCOTIA
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.
[1] This application for judicial review concerns a decision of the Minister of Fisheries and Oceans Canada to limit the permitted lobster catch under an Aboriginal Communal Food, Social and Ceremonial Fishing Licence in two lobster fishing areas in Nova Scotia. The applicant claims that the decision contravenes the government’s duty to consult aboriginal peoples, breaches principles of procedural fairness and violates the terms of a fisheries agreement between the parties.
[2] The respondent takes the position that the government’s duty to consult and accommodate is not engaged within the context of this dispute. Even if the obligation arises (which is denied), Fisheries and Oceans Canada discharged its common law duty to consult and no breach of procedural fairness occurred. The Aboriginal Fisheries Arrangement was honoured both in spirit and in substance. Further, the application is moot because the impugned licence has expired.
[3] I conclude that the deficiencies in the record, most notably the paucity of evidence supporting the applicant’s asserted aboriginal right to fish, are such that constitutional analysis is not appropriate. Consequently, this matter cannot be determined on the basis of the constitutional argument advanced by the applicant.
[4] In relation to the alleged breach of administrative law principles, I do not find that the requisite content of procedural fairness was greater than that which was accorded. The applicant was provided an opportunity to participate and to express its views. It availed itself of that opportunity. The evidence demonstrates that its position was considered. No breach of procedural fairness occurred in the circumstances of this matter.
[5] The argument regarding a purported violation of the Aboriginal Fisheries Arrangement is similarly flawed. Although the agreement expresses the parties’ intent to work together, it does not mandate that consultation must yield a mutually acceptable resolution. Here, consultation did occur. There is no evidence, or allegation, of bad faith. Consequently, the applicant’s argument fails.
[6] Finally, although the application for judicial review is technically moot, it is appropriate to exercise discretion to determine the matter.
The Parties
[7] The applicant Native Counsel of Nova Scotia (NCNS) was organized and created in 1974 as an Aboriginal Peoples Representative Organization to assist and give a collective voice to Mi’kmaq and other Aboriginal persons living “off-reserve” in Nova Scotia. It is a registered society under the Societies Act, R.S.N.S. 1989, c. 435 and is a regional affiliate of the Congress of Aboriginal Peoples (CAP), a national organization. Both CAP and NCNS lobby various levels of government regarding services, benefits and programs for their members.
[8] Membership in NCNS is voluntary and open to any Mi’kmaq or Aboriginal person living off-reserve in Nova Scotia. There are different categories of membership. Approximately 3300 to 3500 persons are “full members”. Full members include Mi’kmaq, Inuit, Métis, or others who claim Aboriginal ancestry.
[9] In 1987, NCNS formed the Netukulimkewe’l Commission (the Commission) as the “Natural Life Management Authority” for the community of Mi’kmaq/Aboriginal People residing off-reserve throughout Nova Scotia. Its stated purpose is to manage the hunting and fishing activities of the community. NCNS and the Commission require full members wishing to participate in the communal activities of hunting or fishing to apply for a community “harvester” permit. The permit issued to each individual harvester is known as an Aboriginal and Treaty Rights Access Passport (ATRA Passport).
[10] The respondent Attorney General represents the Minister of Fisheries and Oceans (the Minister) and the Department of Fisheries and Oceans (DFO). The Department is also known as Fisheries and Oceans Canada (FOC). The acronyms DFO and FOC are used interchangeably in the parties’ submissions and throughout these reasons.
Background
[11] In 1990, NCNS approached DFO to initiate discussions. In 1992, the Aboriginal Fisheries Working Agreement (AFWA) was signed between NCNS and Her Majesty, as represented by the Minister and DFO. Its purpose, stated at section 2.1, was “to provide a general framework for discussions between the Parties with respect to matters set out in Section 3.0 of [AFWA]” which, in general terms, deal with fisheries management issues. Since 1992, DFO and NCNS have entered into a series of written agreements, arrangements and a protocol designed to address fisheries management issues, including conservation, protection and enforcement.
[12] On August 12, 1993, the Protocol Agreement (the Protocol) between NCNS and DFO was implemented. Its purpose was to establish a process through which the parties would work together cooperatively to (a) share information…and (b) discuss issues of concern, including the most appropriate action to be taken when faced with situations where NCNS harvesting practices had a negative impact on the management and conservation of fisheries resources. The Protocol set forth a process whereby a committee of NCNS and FOC representatives discussed incidents of harmful harvesting practices and resolved transgressions by NCNS harvesters in accordance with the principles of Aboriginal restorative justice. The terms of the Protocol provided that it could be terminated by either party upon 90 days notice in writing to the other party. The Protocol was used between 1993 and 1999. Apparently, DFO terminated the Protocol in 2000. The record is silent as to detail in this respect.
[13] On October 3, 1995, the Commission and DFO entered into the Aboriginal Fisheries Arrangement (1995 AFA). In it, the parties professed a commitment to “work together to develop initiatives related to increasing the involvement of the Commission in the management of fish harvesting by ATRA [Passport] Holders in Nova Scotia”. The 1995 AFA provided that NCNS and DFO would use the process delineated in the Protocol, where applicable, to find mutually acceptable solutions to issues arising out of the AFA. A schedule to the AFA provided a detailed annual “harvesting plan” for the fishing of 40 species of fish throughout Nova Scotia (including lobster) for food, social and ceremonial purposes. This gave rise to the Communal Food, Social and Ceremonial Purposes (FSC) Licence granted to the NCNS.
[14] The licence permits NCNS to designate aboriginal persons to harvest fish under the authority of the licence through the issuance of certain documents and certificates. There are also monitoring and catch reporting requirements. The licence and its conditions are 23 pages in length and contain various provisions dealing with conservation, protection and other matters pertaining to the management of the fishery. The conditions that are subject to complaint in this judicial review application relate to one species of fish – lobster – in two specific areas of Nova Scotia. I will provide further detail regarding the impugned conditions and the particular areas later in these reasons.
[15] For ATRA Passport Holders (unlike commercial fishing licencees), lobster fishing season is open all year throughout the province. The FSC Licence conditions specify prescribed gear, a designated number of tagged traps, size limits, the mandatory return of egg-bearing (“berried”) female lobsters immediately to the water and a prohibition regarding possession of female lobsters marked with a v-shaped notch in the right flipper of the tail. The conditions apply province-wide and, historically, were used as conservation measures prior to the issuance of the FSC Licence.
[16] In relation to lobster specifically, the FSC Licence specifies a recommended Netukulimk - a Mi’kmawey concept referring to the use of the natural bounty provided by the Creator for the subsistence and well-being of the individual and community at large – of six lobster trap tags per ATRA Passport Holder, within lobster fishing areas (LFAs) 25 to 35. Although it is not entirely clear from the record, at some point after the execution of the 1995 AFA, the number of traps that could be used in certain LFAs (LFAs 33, 34 and 35 in particular) was refined to provide that ATRA Passport Holders could no longer use all six traps in one LFA.
[17] Under the 2004-2005 AFA, in LFA 33, a maximum of 40 lobsters could be taken per day using a total of two traps or two hoop nets per ATRA Passport Holder. In LFA 34, a maximum of 20 lobsters per day could be taken using one trap or two hoop nets per ATRA Passport Holder. Only the 1995 AFA and the 2004-2005 AFA are included in the record. These AFAs are said to be representative of the various AFAs entered into by the parties. The dispute in this matter centers on the 2004-2005 AFA’s numerical restriction of 20 lobsters per trap in LFAs 33 and 34. These combined lobster fishing areas encompass coastal waters extending from Halifax to Digby. The circumstances giving rise to the restriction are discussed in the paragraphs that follow.
[18] The commercial lobster season in LFAs 33 and 34 is open from the end of November until the end of May. During the summer of 2002, DFO detected an escalating problem in LFA 34, specifically, an illegal lobster fishery during the closed season. DFO Fishery Officers observed illegal fishing being carried out under the guise of an aboriginal FSC Licence. Certain aboriginal harvesters acting alone, or in cooperation with non-aboriginals, were selling quantities of lobster caught under FSC Licences.
[19] In June 2004, Fishery Officers with the Digby and Meteghan detachments prepared enforcement plans to deal with illegal lobster poaching in both St. Mary’s Bay and Yarmouth Harbour. The enforcement plans identified 28 persons suspected of involvement in illegal lobster poaching operations, including six members of the NCNS, six members of other First Nations and one person who self-identified as Métis.
[20] After unsuccessfully attempting to address the problem through surveillance operations and prosecution under the Fisheries Act, R.S.C. 1985, c. F-14 (the Act), DFO determined that there would be no reasonable prospect of successful convictions if numerical limits on allowable lobster catch were not established under the Act, its Regulations, or as a condition of a FSC licence. In the meantime, tension in the lobster fishery community increased as the commercial lobster fishery population grew increasingly angry over the illegal fishing.
[21] The Regional Director of the Fisheries and Aquaculture Management, Maritimes Region (the Regional Director) consulted a marine biologist at DFO and asked for “his input regarding a reasonable limit” for lobster obtained through a FSC Licence in LFA 34. The marine biologist examined data in relation to lobster catches in LFA 34 in September 1998 and found that the traps yielded approximately 14 to 16 legal-sized lobsters per catch. He also reviewed the data from the 2001 commercial fishery in LFA 34 and found that the mean opening day inshore catch was 11.5 legal-sized lobsters per trap. Based on this information, he concluded and advised that a limit of 20 lobsters per trap was a reasonable amount. DFO regarded the numerical limit as the “most viable alternative” to the “lengthy and costly undercover operations” used in 2004 to combat the rise in illegal lobster fishing.
[22] At a scheduled meeting on November 2, 2004, at Truro, NCNS and DFO officials met to discuss fisheries issues. The illegal lobster poaching problem was raised, although the formality of the discussion is a matter of debate. On the one hand, NCNS claims that the primary focus of the meeting was DFO’s new “Aboriginal Aquatic Resources and Oceans Management Program”. The DFO representative ostensibly “raised the issue of illegal lobster poaching in South Western Nova Scotia” near the end of the meeting. DFO, on the other hand, maintains that the poaching issue was one of two agenda items. In any event, it is common ground that DFO presented a draft of its proposed new conditions for the FSC Licence (in LFAs 33 and 34). The draft conditions would limit each NCNS ATRA Passport Holder to 20 lobsters per trap per day.
[23] On January 26, 2005, NCNS and DFO entered into the 2004-2005 AFA. Apparently, it was not unusual for the formal execution of these agreements to be delayed well beyond their implementation
[24] On February 28, 2005, the Regional Director sent a letter to NCNS enclosing a draft of the proposed conditions for the harvesting of lobster under the prospective FSC Licence. He suggested that DFO and NCNS meet again to discuss the proposed changes and requested suggestions for a meeting date.
[25] On April 11, 2005, NCNS and DFO met to discuss the proposed conditions for the FSC Licence (20 lobsters per trap per day in LFAs 33 and 34). NCNS voiced its objections to the proposed conditions. NCNS officials asserted that the numerical limit would not resolve the problem of illegal harvesting and it maintained that it was unfair to limit the rights of the entire NCNS membership because of the actions of a few members. The evidence of the NCNS witness, although equivocal, is to the effect that NCNS officials suggested its preferred alternatives: reinstatement of the Protocol; crate tagging; and engaging the NCNS membership community in a broad debate on the issue.
The Decision
[26] By correspondence dated April 22, 2005, the Regional Director acknowledged the objections of NCNS on the issue of the proposed conditions, but informed NCNS that the conditions would be introduced and would be effective June 1, 2005.
Procedural Background
[27] NCNS filed an application for judicial review of the DFO April 22, 2005 decision on May 15, 2005. The applicant requests an order “quashing the decision of FOC”. It will be recalled that FOC refers to Fisheries and Oceans Canada. The specified grounds for judicial review delineated in the application, as filed, are:
1. FOC’s decision is contrary to the principles of fundamental
justice and procedural fairness;
2. FOC’s decision is contrary to its duty to consult and accommodate
aboriginal people; and
3. FOC’s decision is contrary to the Native Council of Nova Scotia’s
right to hunt and fish for “food, social and ceremonial” purposes.
[28] DFO moved to strike the second and third grounds of the application. On the return of the motion, NCNS withdrew ground 3 and replaced it with the following:
3. FOC’s decision violates the Aboriginal Fisheries Arrangement between
DFO and NCNS dated the 26th day of January, 2005.
[29] Prothonotary Morneau, in dismissing the motion, noted that the law with respect to the duty to consult remains in a state of development and is still being defined and interpreted. Additionally, the issue as to whether “aboriginal procedural rights can exist independently from the aboriginal substantive rights remains open and… requires further argument and examination prior to determination”. Accordingly, the prothonotary concluded that while it was possible that the second ground of the application would be unsuccessful on judicial review, it was “not plain and obvious” that it was devoid of merit. The substituted third ground was “deemed to replace the initial wording of the third ground in the application without the necessity for [NCNS] to serve and file an Amended Notice of Application”.
The Legislation
[30] The Minister is empowered under section 7 of the Fisheries Act to issue licenses for fishing. The Aboriginal Communal Fishing Licences Regulations, SOR/93-332 (ACFL Regulations) are enacted pursuant to subsection 43(f) of the Act. For ease of reference, the pertinent provisions of the ACFL Regulations are set out below. Section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, is also reproduced.
Fisheries Act,
R.S., c. F-14
7. (1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on.
(2) Except as otherwise provided in this Act, leases or licences for any term exceeding nine years shall be issued only under the authority of the Governor in Council.
Aboriginal Communal Fishing Licences Regulations,
SOR/93-332
2. In these Regulations,
“aboriginal organization” includes an Indian band, an Indian band council, a tribal council and an organization that represents a territorially based aboriginal community; (organisation autochtone)
“licence” means a communal licence issued under subsection 4(1); (permis)
4. (1) The Minister may issue a communal licence to an aboriginal organization to carry on fishing and related activities.
(2) The Minister may designate, in the licence,
(a) the persons who may fish under the authority of the licence, and
(b) the vessels that may be used to fish under the authority of the licence.
(3) If the Minister does not designate the persons who may fish under the authority of the licence, the aboriginal organization may designate, in writing, those persons.
(4) If the Minister does not designate the vessels that may be used to fish under the authority of the licence, the aboriginal organization may designate, in writing, those vessels.)
5. (1) For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify in a licence any condition respecting any of the matters set out in paragraphs 22(1)(b) to (z.1) of the Fishery (General) Regulations and any condition respecting any of the following matters, without restricting the generality of the foregoing:
(a) the species and quantities of fish that are permitted to be taken or transported;
(b) the method by which and when the licence holder is to notify the Minister of designations, the documents that constitute proof of designation, when, under what circumstances and to whom proof of designation must be produced, the documents or information that designated persons and vessels must carry when carrying on fishing and related activities, and when, under what circumstances and to whom the documents or information must be produced;
(c) the method to be used to mark and identify vessels and fishing gear;
(d) the locations and times at which landing of fish is permitted;
(e) the method to be used for the landing of fish and the methods by which the quantity of the fish is to be determined;
(f) the information that a designated person or the master of a designated vessel is to report to the Minister or a person specified by the licence holder, prior to commencement of fishing, with respect to where and when fishing will be carried on, including the method by which, the times at which and the person to whom the report is to be made;
(g) the locations and times of inspections of the contents of the hold and the procedure to be used in conducting those inspections;
(h) the maximum number of persons or vessels that may be designated to carry on fishing and related activities;
(i) the maximum number of designated persons who may fish at any one time;
(j) the type, size and quantity of fishing gear that may be used by a designated person;
(k) the circumstances under which fish are to be marked for scientific or administrative purposes; and
(l) the disposition of fish caught under the authority of the licence
7. No person carrying on fishing or any related activity under the authority of a licence shall contravene or fail to comply with any condition of the licence.
8. No person other than a designated person may fish under the authority of a licence.
9. (1) No person who is authorized to fish under the authority of a licence shall fish for or catch and retain any species of fish in any area of the waters referred to in subsection 3(1) during the close time beginning on December 29 and ending on December 31.
(2) The close time established by subsection (1) is considered to be fixed separately and individually with respect to any species of fish found in any of the waters referred to in subsection 3(1).
Constitution Act, 1982
Schedule B, Part II, Rights of the aboriginal peoples of Canada
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
Loi sur les pêches,
S.R., ch. F-14
7. (1) En l’absence d’exclusivité du droit de pêche conférée par la loi, le ministre peut, à discrétion, octroyer des baux et permis de pêche ainsi que des licences d’exploitation de pêcheries — ou en permettre l’octroi —, indépendamment du lieu de l’exploitation ou de l’activité de pêche.
(2) Sous réserve des autres dispositions de la présente loi, l’octroi de baux, permis et licences pour un terme supérieur à neuf ans est subordonné à l’autorisation du gouverneur général en conseil.
Règlement sur les permis de pêche communautaires des Autochtones, DORS/93-332
2. Les définitions qui suivent s’appliquent au présent règlement.
« organisation autochtone » S’entend notamment d’une bande indienne, d’un conseil de bande indienne, d’un conseil de tribu et d’une association qui représente une collectivité territoriale autochtone. (aboriginal organization)
« permis » Permis communautaire délivré en vertu du paragraphe 4(1). (licence)
4. (1) Le ministre peut délivrer un permis communautaire à une organisation autochtone en vue de l’autoriser à pratiquer la pêche et toute activité connexe.
(2) Le ministre peut désigner dans le permis :
a) les personnes autorisées à pêcher au titre du permis;
b) les bateaux qui peuvent être utilisés au titre du permis.
(3) Dans le cas où le ministre ne désigne pas les personnes autorisées à pêcher au titre du permis, l’organisation autochtone peut les désigner par écrit.
(4) Dans le cas où le ministre ne désigne pas les bateaux qui peuvent être utilisés au titre du permis, l’organisation autochtone peut les désigner par écrit.
5. (1) Afin d’assurer une gestion et une surveillance judicieuses des pêches et de voir à la conservation et à la protection du poisson, le ministre peut, sur un permis, indiquer notamment toute condition relative aux points visés aux alinéas 22(1)b) à z.1) du Règlement de pêche (dispositions générales) et toute condition concernant ce qui suit :
a) les espèces et quantités de poissons qui peuvent être prises ou transportées;
b) par quel moyen et à quel moment le titulaire du permis avise le ministre des désignations, les documents attestant la désignation, à quel moment, dans quelles circonstances et à qui les attestations de désignation doivent être produites, les documents ou les renseignements que les personnes ou les bateaux désignés doivent respectivement avoir sur elles ou à bord lorsqu’ils pratiquent la pêche et toute activité connexe et à quel moment, dans quelles circonstances et à qui les documents ou les renseignements doivent être produits;
c) la méthode de marquage et d’identification des bateaux et des engins de pêche;
d) les endroits et les moments où le poisson peut être débarqué ou amené à terre;
e) la méthode à utiliser pour débarquer le poisson et les méthodes pour en déterminer la quantité;
f) les renseignements que la personne désignée ou le capitaine du bateau désigné doit, avant le début de la pêche, transmettre au ministre ou à la personne indiquée par le titulaire du permis quant aux endroits et aux moments où la pêche sera pratiquée, ainsi que le mode et les moments de transmission et leur destinataire;
g) les endroits et les moments des inspections du contenu de la cale et la procédure à suivre lors de celles-ci;
h) le nombre maximal de personnes ou de bateaux qui peuvent être désignés pour pratiquer la pêche et toute activité connexe;
i) le nombre maximal de personnes désignées qui peuvent pêcher en même temps;
j) le type, la grosseur et la quantité des engins de pêche que toute personne désignée peut utiliser;
k) les circonstances dans lesquelles le poisson peut être marqué à des fins scientifiques ou administratives;
l) l’aliénation du poisson pris en vertu du permis.
7. Il est interdit à quiconque pratique la pêche ou toute activité connexe autorisées en vertu d’un permis de contrevenir ou de déroger aux conditions de ce permis.
8. Il est interdit à quiconque n’est pas désigné de pêcher en vertu d’un permis.
9. (1) Il est interdit à quiconque est autorisé à pêcher en vertu d’un permis de pêcher, de prendre ou de garder toute espèce de poisson dans toute zone des eaux visées au paragraphe 3(1) pendant la période de fermeture commençant le 29 décembre et se terminant le 31 décembre.
(2) La période de fermeture établie au paragraphe (1) est réputée fixée séparément pour toute espèce de poisson qui se trouve dans toute zone des eaux visées au paragraphe 3(1).
Loi de 1982 sur la constitution, Annexe B, Partie II, Droits des peuples autochtones du Canada
35. (1) Les droits existants — ancestraux ou issus de traités — des peuples autochtones du Canada sont reconnus et confirmés.
(2) Dans la présente loi, « peuples autochtones du Canada » s'entend notamment des Indiens, des Inuit et des Métis du Canada.
(3) Il est entendu que sont compris parmi les droits issus de traités, dont il est fait mention au paragraphe (1), les droits existants issus d'accords sur des revendications territoriales ou ceux susceptibles d'être ainsi acquis.
(4) Indépendamment de toute autre disposition de la présente loi, les droits — ancestraux ou issus de traités — visés au paragraphe (1) sont garantis également aux personnes des deux sexes.
Issues
[31] NCNS asserts that its grounds for judicial review involve three overlapping issues: an administrative law issue (procedural fairness), a constitutional issue (section 35 of the Constitution Act, 1982) and a contractual issue (the 2004-2005 AFA). It is the “constitutional issue” that is the primary focus of its arguments.
Duty to Consult and Accommodate
Overview of the NCNS Position
[32] The NCNS submission is founded on recent jurisprudence from the Supreme Court of Canada which emphasized the importance of the Crown’s duty to consult aboriginal communities before taking actions or making decisions that could negatively impact the lands or resources over which aboriginal claims are asserted. The crux of the NCNS argument emanates from the Supreme Court’s comments in Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 (Haida); Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550 (Taku) and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 (Mikisew).
[33] NCNS’s written submissions rely on Haida as support for, among other things, the “timing” of the duty to consult. The “great jurisprudential significance” of Haida, according to NCNS, is its confirmation that the government is required to consult aboriginal persons before an aboriginal or treaty right has been proved or admitted. There is a duty to engage in “pre-proof” consultation and to do so in good faith. The honour of the Crown requires no less. Further, NCNS asserts that Mikisew teaches that the duty to consult is a procedural rather than a substantive (e.g. hunting, fishing, trapping) right.
[34] Although the NCNS written argument is largely devoted to the concepts of “duty to consult” and the “honour of the Crown”, NCNS maintained, at the hearing, that it was not alleging that DFO failed to consult. Rather, its concern relates to the content or scope of the consultation and the steps (or lack thereof) taken to accommodate its concerns.
[35] Regarding the problem of illegal poaching in Yarmouth Harbour and St. Mary’s Bay, NCNS agrees that it must be stopped. It does not defend illegal lobster harvesting. However, it contends that it is critical that the method chosen to address the problem strikes a balance. The constitutional rights of the members of NCNS members must be treated with honour and respect.
[36] NCNS claims that DFO initially recognized its obligation to consult in June of 2004, when the lobster poaching enforcement plans were prepared. However, by the fall of 2004, it made a decision to proceed in a particular direction. The November meeting (in the same year) provided a forum for DFO to disclose its proposed course of action and, in the end, it simply mobilized the enforcement part of its plan over (and notwithstanding) the objections of NCNS. There was no DFO analysis conducted regarding the alternatives to the numerical limit proposed by NCNS. Moreover, NCNS was not told of the alternatives that DFO considered, if any; NCNS was informed of the DFO rationale, without more. NCNS claims that DFO had a duty to accommodate (grounded in the Crown’s honour and corresponding obligation to achieve reconciliation) and an obligation to give good faith consideration to aboriginal concerns. Mikisew is unequivocal: the objective is the reconciliation of aboriginal people and non-aboriginal peoples and their respective claims, interests and ambitions.
[37] NCNS contends that, in addition to imposing a numerical limit for lobsters per trap in LFAs 33 and 34, DFO criminalized the matter by providing that the numerical limit applies to “catch, prevention and detention”. From the perspective of NCNS, DFO completely failed in its obligation to accommodate because it did not adapt its decision to address the concerns voiced by NCNS.
[38] In terms of the honour of the Crown “spectrum”, NCNS places this matter at the high end because it involves food, social and ceremonial aboriginal fishing rights. Even at the lower end of the spectrum, it maintains that DFO’s duty to solicit information, listen carefully, and attempt to minimize adverse impacts remains unfulfilled. NCNS asserts that DFO gave advance notice of discussion and advised, but did not truly consult because it did not provide information in a timely manner. The DFO decision was a “done deal” by November 2004.
[39] In sum, NCNS contends that DFO properly identified its obligation and did not intend to limit the NCNS members’ food, social and ceremonial fishing rights. However, the consultation process lacked proper content with respect to “give and take”. DFO had a duty to take the NCNS feedback seriously and to accommodate its concerns. The NCNS position is that DFO failed in this respect.
Analysis
[40] In my view, this matter does not lend itself to a section 35 of the Constitution Act, 1982 (section 35) analysis primarily because section 35 is not adequately engaged on the record before me. I will have more to say about this later in these reasons. However, it is important not to lose sight of the policy which dictates restraint in constitutional analysis, as “unnecessary constitutional pronouncements may prejudice future cases”: Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97 at para. 9. Regarding the section 35 argument, this application is fraught with difficulties. I do not intend to itemize all of them, but I will highlight those which are particularly problematic.
[41] The record is unusual in that it is not a “record” that was before the decision-maker. NCNS relies on the affidavits of Timothy Kenneth Martin, a member of the NCNS Board of Directors, sworn July 4, 2005 and September 14, 2005. Exhibited to his affidavits are a number of documents that provide useful background information, but little else. With the exception of copies of FOC correspondence from D. Leslie Burke, dated February 28, 2005, and April 22, 2005, and FOC correspondence from Neil A. Bellefontaine dated May 27, 2005, the affidavits are scant on information regarding the issue before the court. The respondent’s record is more fulsome and contains the affidavits of four deponents including exhibits, which provide information regarding: the litigation history between the parties; details with respect to the poaching problem; articles and correspondence descriptive of the climate existing in 2004; copies of proposed enforcement plans; research documentation on the stock status of lobster in LFA 34; and NCNS lobster landing records from 1995-2005. The cross-examinations of D. Leslie Burke (DFO) and Mr. Martin are included in the respective records of the parties.
[42] The respondent raises the issue of standing and contends that NCNS, an incorporated political organization, does not possess aboriginal rights. In view of my conclusion regarding the unsuitability of section 35 in relation to this matter, it is not necessary for me to determine whether NCNS has the requisite standing to mount a section 35 challenge. For present purposes I assume, without deciding, that it does. However, that does not end the matter.
[43] The first difficulty with engaging in a section 35 analysis is that the alleged “aboriginal right” does not directly correspond with the alleged “right of consultation” put forth by the NCNS. NCNS argues that adequate consultation requires that the government consult with the aboriginal community using the mechanisms chosen by the community. Because the off-reserve aboriginal population of Nova Scotia chose the NCNS to represent them in their dealings with DFO, the NCNS (as an organization) holds the procedural right of consultation while its individual members hold the substantive right to fish. However, even accepting that a duty to consult may be owed to an aboriginal organization, the Nova Scotia Mi’kmaq right to fish for food, social and ceremonial purposes does not belong (and is not alleged to belong) to the entire membership of NCNS. The organization’s membership is comprised of Mi’kmaq and other aboriginal people who reside off-reserve in Nova Scotia. Mr. Martin, in cross-examination, acknowledged that an application for an ATRA Passport, although more circumscribed than the general NCNS membership application, was open to anyone within the membership. Non-Mi’kmaq aboriginal people have ATRA Passports, which allow them to fish for lobster in the off-season.
[44] Thus, NCNS is alleging a duty to consult and accommodate for individuals who, on the basis of the record, do not possess the Mi’kmaq right to fish. There is a paucity of evidence to support an asserted aboriginal right to fish for food, social and ceremonial purposes for the non-Mi’kmaq ATRA passport holders. The respondent referred repeatedly to this deficiency in both written submissions and at the hearing. NCNS chose not to respond.
[45] Additionally, NCNS withdrew its allegation of a “breach of an aboriginal right” from its notice of application. Consequently, no aboriginal right is asserted in the pleadings. An applicant must indicate in its originating document the irregularities which it alleges vitiate the impugned decision. The decision of the court will deal only with the grounds of review invoked by the applicant: Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455, 180 N.R. 152 (C.A.); leave to appeal dismissed (1995), 198 N.R. 237n (S.C.C.). To complicate matters further, there is absolutely no evidence indicating the genesis of any aboriginal right to fish in relation to the NCNS membership. NCNS turns to Haida to support the proposition that infringement need not be proved in order to trigger the duty to consult. With respect, this position begs the question. The identified difficulty is the failure to assert an aboriginal right.
[46] The NCNS response to the noted defect is to say that the aboriginal right at issue is asserted “by implication”. It is noteworthy that, in its written submissions, NCNS claims that the right to fish for food, social and ceremonial purposes is “well-established”. At the hearing, it retreated from its initial position and presented a more nuanced approach: the right to fish for food, social and ceremonial purposes was clearly asserted by NCNS and the Crown was well aware of the asserted right. Accordingly, the Crown’s knowledge of this gave rise to the duty to consult. In support of its position that the Crown was aware of the asserted aboriginal right, NCNS argues:
• R. v. Sparrow, [1990] 1 S.C.R. 1075 (Sparrow) and R. v. Denny (1990), 94 N.S.R. (2d) 253 (C.A.) (Denny) demonstrate that the Mi’kmaq have a right to fish for food, social and ceremonial purposes;
• the various fishery agreements between NCNS and DFO over the last 10 to 15 years indicate that NCNS asserted a right to fish for its members;
• the 2005 ATRA Affirmation Registration Card specifically references jakej (lobster) at paragraph 12 and the Crown was aware of the existence of the document;
• NCNS had clearly asserted a right to fish in previous litigation. Paragraph 21 of the court’s reasons in NCNS v. Canada 2002 FCT 6, F.C.J. No. 4 delineate the specific asserted rights.
[47] Paragraph 79 of Sparrow cites Denny and states that it “addresses the constitutionality of the Nova Scotia Micmac Indians’ right to fish in the waters of Indian Brook and the Afton River, and does so in a way that accords with our understanding of the constitutional nature of aboriginal rights and the link between allocation and justification required for government regulation of the exercise of the rights”. The ruling in Denny held that the Nova Scotia Mi’kmaq Indians have an aboriginal right to fish in waters incidental and adjacent to reserve lands. Aside from the fact that the NCNS membership is not comprised exclusively of Mi’kmaq aboriginals, I have no idea whether LFA 33 and LFA 34 are waters “adjacent to a reserve” because no evidence has been offered in this regard. Further, there is no evidence of a treaty, or of practices, customs or traditions (integral to the pre-contact culture of an aboriginal people) in relation to the NCNS membership.
[48] As for the fishery agreements, NCNS acknowledges that each agreement specifically provides that it “shall not serve to recognize, define, affect or limit aboriginal rights or to recognize, create, define, affect or limit treaty rights and that this arrangement and such subarrangements are not intended to be, and shall not be interpreted to be, arrangements or treaties within the meaning of section 35 of the Constitution Act, 1982 …”. NCNS also acknowledges that it, as the representative of its membership, is a signatory to the agreement.
[49] The reference to jakej (lobster) in the ATRA Affirmation Registration Card does little to advance the NCNS position. The evidence is to the effect that once the FSC Licence is granted to the NCNS, it is for NCNS to designate who, from within its membership, is granted a licence. DFO has no involvement in this respect. It stretches elasticity to the breaking point to conclude that because DFO is aware of the document’s existence, it is aware that the NCNS membership has asserted a section 35 right.
[50] I am of a similar view regarding paragraph 21 of NCNS v. Canada, relied upon by NCNS. It is useful to set out the paragraph in its entirety. The emphasis is mine.
Paragraphs 27 and 28 of the statement of claim appear to allege that the fishing agreements infringe a right en