A-583-97
Minister of Fisheries and Oceans (Appellant)
v.
Nunavut Tunngavik Inc. (Respondent)
and
Makivik Corporation (Intervener)
Indexed as: Nunavut Tunngavik Inc.v. Canada (Minister of Fisheries and Oceans) (C.A.)
Court of Appeal, Denault J.A. (ex officio), Létourneau and McDonald JJ.A."Ottawa, July 2 and 13, 1998.
Native peoples — Lands — Appeal from Motions Judge's decision setting aside Minister of Fisheries and Ocean's decision fixing turbot quotas in area adjacent to Nunavut Settlement Area (NSA) — Land claims agreement creating relationship between Nunavut Inuit, Government of Canada respecting co-ordinated wildlife management within, outside geographic area covered by Agreement — S. 15.3.4 requiring Government to seek advice of Nunavut Wildlife Management Board (NWMB) with respect to management decisions in adjacent zones affecting substance, value of Inuit harvesting rights, opportunities within marine areas of NSA — Minister increasing total allowable catch, but decreasing Nunavut Inuit's share thereof — Appeal dismissed, but portion of order requiring reconsideration in accordance with Motions Judge's reasons deleted — (1) Motions Judge erred in concluding Minister's decision infringing on NWMB's sole authority to establish levels of allowable harvest in NSA pursuant to s. 5.6.16 — S. 5.6.16 applicable in NSA only — Conditions of exploitation of area concerned governed by Art. 15 — (2) Also erred in concluding Minister failed to consider advice of NWMB — Procedural restrictions on Minister's exercise of discretion imposed by S. 15.3.4 satisfied when Minister in good faith seeks, considers NWMB's views — NWMB's function advisory, Minister not bound by such advice — Clear evidence Minister sought, received NWMB's advice — S. 15.4.1 permitting several Boards to advise, make recommendations — When they do so, Government obliged to consider it, but not obliged to seek their advice with respect to decisions affecting defined marine areas — (3) S. 15.3.7 obliging Minister to give —special consideration— to principles of adjacency, economic dependence — Purposive interpretation indicating parties intended to establish principle of equity, not one of priority, in distribution of commercial fishing licences — —Special consideration— meaning particular, appropriate attention, when balancing competing interests at stake, with view to promoting fair balance in distribution of commercial fishing licences — Application of principles should be reflected in final distribution of licences, quotas — (4) In absence of reasons for allocation of quotas, circumstances indicating Minister not giving special consideration to adjacency, economic dependence principles or misconstrued principles — Minister aware of Nunavut Inuit's demands for additional quotas based on adjacency, economic dependence principles — Notwithstanding 20% increase of Canada's share of TAC, allocating only slight portions of increase to Nunavut Inuit, thereby reducing share of overall TAC.
Fisheries — 1993 land claims agreement creating relationship between Nunavut Inuit, Government of Canada respecting co-ordinated wildlife management within, outside geographic area covered by Agreement — Agreement imposing on Minister substantive, procedural requirements affecting manner in which decision-making process including ministerial discretion to fix fishing quotas to be exercised — Minister's discretion in Fisheries Act, s. 7 no longer absolute when exercise thereof affecting wildlife marine areas of Nunavut Settlement Area (NSA), and wildlife management in adjacent Zones I, II — Within NSA, Nunavut Wildlife Management Board main instrument of wildlife management — In Zones I, II outside NSA, primary overall responsibilities over wildlife management given to Government, subject to conditions.
This was an appeal from the Motions Judge's order setting aside the Minister of Fisheries and Oceans' decision establishing turbot fishing quotas in the Greenland and Baffin Island area, which is adjacent to the Nunavut Settlement Area (NSA). The Motions Judge referred the matter back to the present Minister for a reconsideration of the quotas in accordance with his reasons. In 1993, the Inuit of the NSA and the Government of Canada ratified a land claims agreement, which created a relationship between the two parties respecting co-ordinated wildlife management both within and outside the geographic area covered by the Agreement. This area includes Canada's 12-mile territorial sea off the east coast of Baffin Island. Section 15.3.4, which is found in Part 3 entitled "Wildlife Management and Harvesting Beyond the Marine Areas of the Nunavik Settlement Area", requires the Government to seek the advice of the Nunavut Wildlife Management Board (NWMB) with respect to any wildlife management decisions in Zones I and II which would affect the substance and value of Inuit harvesting rights and opportunities within the marine areas of the NSA. Section 15.4.1, which appears in Part 4 entitled "Marine Management", permits the NWMB to make recommendations to other government agencies regarding the marine areas, and requires the Government to consider such advice and recommendations in making decisions which affect marine areas. Section 15.3.7 acknowledges the importance of the principles of adjacency and economic dependence of communities in the NSA on marine resources, and obliges the Government to give special consideration to these factors when allocating commercial fishing licences within Zones I and II. It stipulates that the principles shall be applied in such a way as to promote a fair distribution of licences between the residents of NSA and the other residents of Canada in a manner consistent with Canada's interjurisdictional obligations.
This appeal was in respect of wildlife management in Zone I, beyond the 12-mile territorial sea of the NSA. Since 1982, the total allowable catch (TAC) of turbot in the area was shared equally between Canada and Greenland. On April 7, 1997 the Minister announced that Canada intended to unilaterally increase its share of the TAC of turbot. He announced a repartition of the additional 1 100 metric tonnes (t) as follows: the competitive allocation to Canadian groundfish fishermen was increased by 600t; the traditional inshore allocation for the Nunavut region remained unchanged, but their offshore quotas were increased by 100t; and a special domestic allocation of 400t was given to Nunavik fishermen from Labrador and Northern Quebec. In addition, for the first time, the Nunavut Inuit were given a groundfish licence to fish their allocation of turbot in Zone I. With the 1997 allocation, the Nunavut Inuit share was reduced from 27.3% to 24%. The NWMB had advised the Minister that the Nunavut Inuit's share of 27.3% was an absolute minimum that ought to be increased.
The issues were: (1) whether the Motions Judge erred in holding that the Minister's decision had infringed on the NWMB's sole authority to establish levels of allowable harvest in the NSA pursuant to Section 5.6.16; (2) whether the Motions Judge erred in holding that the Minister had failed to consider the advice of the NWMB as required by Sections 15.3.4 and 15.4.1 of the Agreement; (3) whether the Motions Judge erred in holding that the Minister had failed to give special consideration to the principles of adjacency and economic dependence as required by Section 15.3.7 by rejecting without reasons the NWMB's request for unrestricted groundfish licences as enjoyed by southern fishers; and (4) whether the Motions Judge erred in holding that there had not been a fair distribution of the turbot fishery between the residents of the NSA and the other residents of Canada because the Minister had given no special consideration to the adjacency and economic dependence of communities in the NSA.
Held, the appeal and the intervention should be dismissed. and the order varied by deleting therefrom the direction to the Minister to act in accordance with the Motions Judge's reasons, which were erroneous.
Although the issue of the allocation of 1997 fishing quotas was probably now moot, the appeal raised important questions of interpretation of the Agreement for future allocations of quotas and distribution of fishing licences. The Agreement imposes upon the Minister both procedural and substantive requirements which affect the manner in which the decision-making process, including the ministerial discretion to fix fishing quotas, is to be exercised. The Minister's discretion in Fisheries Act, section 7 is no longer absolute when the exercise of that discretion affects the wildlife and marine areas of the NSA and the wildlife management in Zones I and II. Within the NSA, the NWMB is the main instrument of wildlife management, and it has the primary responsibility of establishing, modifying or removing levels of total allowable harvest or harvesting of wildlife. In Zones I and II, which are outside the NSA, both the primary and overall responsibilities over wildlife management are given to the Government but subject to some conditions and requirements, which recognize the need for Inuit involvement in aspects of Arctic marine management (Sections 15.1.1(g), 15.3.1, 15.3.4, 15.3.7, and 15.4.1).
(1) The Motions Judge erred when he applied to the Minister's decision the requirements of Section 5.6.16 because the regime established in that Section, which gives the NWMB sole authority to establish levels of total allowable harvest in the NSA, has no application in Zone I. The conditions of exploitation of Zone I are governed by Article 15 which provides for a different regime and kind of involvement for the Nunavut Inuit. The Motions Judge ignored the definition of Zone I in the Agreement and, as a result, imported with respect to wildlife management decisions in Zone I the more stringent procedural requirements applicable in the NSA only.
(2) The Motions Judge erred in concluding that the Minister had failed to consider the advice of the NWMB. He held that the duty to "consider" entailed more than receiving and examining the advice of the NWMB and that the Nunavut Inuit must be given priority consideration with respect to wildlife management. Because turbot are migratory fish, the allocation of turbot fishing quotas and licences in Zones I and II would affect the substance and value of the Nunavut Inuit's harvesting rights within the marine areas of the NSA. Thus the Government was obliged to seek the advice of the NWMB. It is implicit in Section 15.3.4 that the Government shall consider the advice that it must seek and there is no need to resort to Section 15.4.1 to find such a duty. Consequently, Section 15.3.4 imposes procedural restrictions on the Minister's exercise of discretion which are satisfied when the Minister in good faith seeks and considers the views of the NWMB. The NWMB's function with respect to management decisions in Zones I and II is merely advisory and the Minister is not bound by such advice. Furthermore, the Minister is not required to provide reasons to the NWMB should he decide not to follow its views. Procedural requirements are less stringent on the Minister's exercise of discretion outside the NSA where numerous other interests, including international obligations, impact on the management of these zones.
There was clear evidence that the Government sought and received the advice of the NWMB in compliance with Section 15.3.4. The NWMB wrote to the Minister in December 1996 and a conference call was held with representatives of the Board to discuss their recommendations and that was followed by a meeting with the Minister.
The first part of Section 15.4.1 is permissive in that the Boards enumerated therein may advise or make recommendations to other agencies of the Government. There is no duty on the Government to seek the advice of any of the Boards mentioned in Section 15.4.1 with respect to decisions which affect marine areas defined in Section 1.1.1. To the extent that Section 15.4.1 might be said to be applicable to the specifics of this case because turbot are migratory fish and the fishing in Zone I might affect marine areas in the NSA, only the NWMB made recommendations or gave advice to the Government. Such advice was considered and rejected for the most part.
(3) The Motions Judge gave an erroneous interpretation to Section 15.3.7, one which did not accord with the intention of the parties to the Agreement and did violence to the text of the provision. He interpreted the words "special consideration" in Section 15.3.7 as meaning that communities in the NSA have priority consideration for licences in Zones I and II over any other competing party, and the allocations must clearly reflect this principle. A purposive interpretation of Section 15.3.7 evidences an intention of the parties to the Agreement to establish a principle of equity, not one of priority, in the distribution of commercial fishing licences within Zones I and II. In addition, the balancing of interests between the residents of the NSA and other residents of Canada has to be consistent with Canada's interjurisdictional obligations. Such a requirement which affects the distribution of licences is incompatible with a principle of priority of access. "Special consideration" of adjacency and economic dependence principles in the equitable context of Section 15.3.7 means that a particular and appropriate attention ought to be given to these principles when balancing the competing interests at stake, with a view to promoting a fair balance in the distribution of commercial fishing licences in these Zones. Barring exceptional circumstances, the application of these principles should be reflected in the final distribution of licences and quotas by the Minister, such distribution indicating a proportion which, in view of all the other constraints on the Minister including those of Section 15.3.7, is fair in the circumstances.
(4) In the absence of reasons which would indicate whether the decision was lawful, the circumstances surrounding the exercise of his discretion lead to a reasonable inference that the Minister either did not give special consideration to the adjacency and economic dependence principles as required by the Agreement, or misconstrued these principles when allocating commercial fishing licences within Zone I. As a result of the Minister's decision, the Nunavut Inuit's share of the TAC was reduced, but the share of the competitive fishery increased from 27% to 32%. The fishermen in that category of licensees did not satisfy the definition of adjacency since they were primarily from Newfoundland and, therefore, not within a reasonable geographic distance from Zone I. The Minister knew both of the demands of the Nunavut Inuit for additional quotas based on the adjacency and economic dependence principles, and of the fact that the Nunavut Inuit considered their actual share of the TAC to be the absolute minimum. Yet, notwithstanding a 20% increase by Canada of its share of the TAC which is 10% of the overall TAC, he allocated to them only a slight portion of the increase, which had the effect of reducing their share of that overall TAC.
As to the intervener's request that the Court set aside that portion of the judgment directing that implementation of Section 15.3.7 must mean that communities in the NSA have priority for licences in Zones I and II over everyone, rejection of the "priority consideration" principle erroneously adopted by the Motions Judge rendered it moot. As to the submission that the Judge's order should have instructed the Minister that the Nunavik Inuit were also entitled to benefit from the adjacency and economic dependence principles, Section 15.3.7 does not apply to Nunavik Inuit. Also, the definitions of Zones I and II in Section 1.1.1 refer to waters that "are not part of . . . another land claim settlement area". There are ongoing discussions between the Nunavik Inuit and governments for a land claims agreement. The Court should not decide whether the Nunavik Inuit should have the benefit of these principles. This means that these principles are open to, or the subject of, negotiations in other land claims settlement.
statutes and regulations judicially considered
Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in right of Canada. Ottawa: Published under the joint authority of the Tungavik and the Minister of Indian Affairs and Northern Development, 1993, Ss. 1.1.1, 2.2.3, 5.2.33, 5.3.18, 5.6.16, 12.6.14, 15.1.1, 15.3.1, 15.3.4, 15.3.7, 15.4.1.
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35 (as am. by SI/84-102, s. 2).
Convention of Future Multilateral Co-operation in the Northwest Altantic Fisheries, October 24, 1978, [1979] Can. T.S. No. 11.
Fisheries Act, R.S.C., 1985, c. F-14, s. 7(1).
Nunavut Land Claims Agreement Act, S.C. 1993, c. 29, s. 6(1).
Territorial Sea Geographical Coordinates (Area 7) Order, SOR/85-872.
cases judicially considered
applied:
Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646; (1997), 147 D.L.R. (4th) 93; 212 N.R. 63 (C.A.).
distinguished:
R. v. Sparrow, [1990] 1 S.C.R. 1075; (1990), 70 D.L.R. (4th) 385; [1990] 4 W.W.R. 410; 46 B.C.L.R. (2d) 1; 56 C.C.C. (3d) 263; [1990] 3 C.N.L.R. 160; 111 N.R. 241.
considered:
Carpenter Fishing Corp. v. Canada, [1998] 2 F.C. 548; (1997), 155 D.L.R. (4th) 572; 221 N.R. 372 (C.A.).
referred to:
Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; (1997), 142 D.L.R. (4th) 193; 43 Admin. L.R. (2d) 1; 31 C.C.L.T. (2d) 236; 206 N.R. 363; Gulf Trollers Assn. v. Canada (Minister of Fisheries and Oceans), [1987] 2 F.C. 93; (1986), 32 D.L.R. (4th) 737; [1987] 2 W.W.R. 727; 72 N.R. 31 (C.A.); leave to appeal to S.C.C. refused, [1987] 1 S.C.R. viii; MacKinnon v. Canada (Fisheries and Oceans), [1987] 1 F.C. 490; (1986), 26 C.R.R. 233; 6 F.T.R. 203 (T.D.); Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102; (1993), 19 Admin. L.R. (2d) 91; 11 C.E.L.R. (N.S.) 1; 64 F.T.R. 127 (T.D.); Barron v. Minister of National Revenue, [1997] 2 C.T.C. 198; (1997), 97 DTC 5121; 209 N.R. 392 (F.C.A.); Vancouver Island Peace Society v. Canada, [1992] 3 F.C. 42; (1992), 53 F.T.R. 300 (T.D.); Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247; (1994), 17 Admin. L.R. (2d) 121; 164 N.R. 342 (C.A.); Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; (1982), 137 D.L.R. (3d) 558; 44 N.R. 354; Canada (Attorney General) v. Purcell, [1996] 1 F.C. 644; (1995), 40 Admin. L.R. (2d) 40; 96 CLLC 210-010; 192 N.R. 148 (C.A.); Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.); Cantwell v. Canada (Minister of the Environment) (1991), 6 C.E.L.R. (N.S.) 16; 41 F.T.R. 18 (F.C.T.D.); R v Civil Service Appeal Board, ex p Cunningham, [1941] 4 All ER 310 (C.A.).
authors cited
Chambers 20th Century Thesaurus: a Comprehensive Word-Finding Dictionary. Edinburgh: Chambers, 1986, "hear", "listen".
Collins COBUILD English Language Dictionary. London: Collins, 1987, "hear", "listen".
Oxford English Dictionary. Oxford: Clarendon Press, 1970, "hear", "listen".
Petit Robert 1: Dictionnaire alphabétique et analogique de la langue française. Montréal: Les Dictionnaires Robert-Canada S.C.C., 1989, "écouter", "entendre".
Random House Dictionary of the English Language, 2nd ed. New York: Random House, 1987, "hear", "listen".
West's Legal Thesaurus / Dictionary, Special deluxe ed. St. Paul, Minn.: West Pub. Co. 1986, "hear", "listen".
APPEAL from Motions Judge's order setting aside a decision of the Minister of Fisheries and Oceans establishing the turbot fishing quotas in the Greenland and Baffin Island area (Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) (1997), 149 D.L.R. (4th) 519; [1997] 4 C.N.L.R. 193; 134 F.T.R. 246 (F.C.T.D.)). Appeal and intervention dismissed, but order varied to delete direction to Minister to act in accordance with Motions Judge's reasons.
appearances:
Brian R. Evernden for appellant.
Dougald E. Brown and William Hinz for respondent.
Peter W. Hutchins and David Kalmakoff for intervener.
solicitors of record:
Deputy Attorney General of Canada for appellant.
Nelligan, Power, Ottawa, for respondent.
Hutchins, Soroka & Dionne, Montréal, for intervener.
The following are the reasons for judgment rendered in English by
The Court: This is an appeal from a decision of Campbell J. [(1997), 149 D.L.R. (4th) 519] who set aside a decision of April 7, 1997 of the Minister of Fisheries and Oceans (Minister) establishing the quotas for the fishing of turbot in the Greenland and Baffin Island area. Campbell J. referred the matter back to the present Minister for a reconsideration of the quotas in accordance with his reasons. The ambiguity and vagueness of these reasons have given rise to conflicting interpretations.
The appeal raises the issue of the impact of a land claims agreement titled the Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in right of Canada (Agreement) between the Government of Canada and the Inuit of the Nunavut Settlement Area (NSA) on the Minister's exercise of discretion in fixing the fishing quotas in the Greenland and Baffin Island area which is adjacent to the NSA. It requires an interpretation of Sections 15.3.4, 15.3.7 and 15.4.1 of the Agreement which relate to the wildlife management and harvesting beyond the marine areas of the NSA as well as the marine management of marine areas of the NSA when decisions are made which affect these areas.
More specifically, the appeal bears on the definition and scope of the Government's obligation under the Agreement to seek the advice of the Nunavut Wildlife Management Board (NWMB) with respect to any wildlife management decisions in Zones I and II which would affect harvesting rights in the marine areas of the NSA. In addition, it requires an examination of the meaning of the Government's obligation to give special consideration to the principles of adjacency and economic dependence of communities in the NSA on marine resources when allocating commercial fishing licences within Zones I and II. This appeal is in respect of wildlife management in Zone I only, which is defined as those waters north of 61o latitude subject to Canada's jurisdiction seaward of the territorial sea boundary as measured from lines drawn pursuant to the Territorial Sea Geographical Coordinates (Area 7) Order, SOR/85-872 that are not part of the Nunavut Settlement Area or another land claim settlement area. In lay terms, Zone I refers to the 200-mile fishing zone north of the 61o latitude and beyond the 12-mile territorial sea of the NSA.
Facts and Procedure
In 1993, the Inuit of the NSA and the Government of Canada ratified a land claims agreement within the meaning of section 35 [as am. by SI/84-102, s. 2] of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. The Agreement created a relationship between the Nunavut Inuit and the Government of Canada respecting co-ordinated wildlife management both within and outside the geographic area covered by the Agreement. This area (which is composed of an "Area A" which is the portion of the Arctic Islands and mainland of the Eastern Arctic and adjacent marine areas and an "Area B" which is the Belcher Islands, associated islands and adjacent marine areas in Hudson Bay) also includes Canada's 12-mile territorial sea off the east coast of Baffin Island.
A multilateral convention established the Northwest Atlantic Fisheries Organization (NAFO) [Convention of the Future Multilateral Co-operation in the Northwest Atlantic Fisheries, October 24, 1978, [1979] Can. T.S. No. 11] and, for fisheries administration purposes, divided the Atlantic Ocean, immediately off Canada's east coast and the west coast of Greenland, into several sub-areas. Only Sub-area 0 (which is the area administered by Canada in the Davis Strait between Baffin Island and a line equidistant between Canada's and Greenland's 200-mile zones) and Sub-area 1 (which is the area along the western coast of Greenland administered by that country) are in issue in the present litigation. Sub-area 0 which is adjacent to NSA is subdivided into Division 0A which is the northern half of the area and Division 0B which is the other half to the south.
Turbot, or Greenland halibut as it is also called, is a migratory groundfish found in both Areas 0 and 1 and, with some exceptions, all the species of that fish come from a common stock. Since 1982, the total allowable catch (TAC) of these fish in Divisions 0B and 1B-F was based on scientific advice from NAFO Scientific Council and shared equally between Canada and Greenland pursuant to discussions between these two countries. From 1993, the TAC was at 11 000 metric tonnes (t) on the decline from earlier years where it was set at 25 000t. The decrease was due to fears of overfishing the stock.
While the TAC remained at 11 000t for the year 1997, on April 7, 1997, the Minister announced Canada's intention to unilaterally increase its share of the TAC from 50% to 60%. This meant that Canada would take 6 600t instead of the 5 500t it would have normally received. He announced a repartition of the additional 1 100t as follows. The competitive allocation to Canadian groundfish fishermen would be increased by 600t. The traditional inshore allocation for the Nunavut region remained unchanged at 1 000t, but their offshore quotas increased from 500t to 600t. In addition, the Nunavut Inuit were, for the first time, given a groundfish licence to fish their allocation of turbot in Zone 1. A special domestic allocation of 400t was given to Nunavik fishermen from Labrador and Northern Quebec. The following chart illustrates the differences in the allocation of quotas between the years 1996 and 1997:
1997 SHARING OF SUB-AREA 0
GREENLAND HALIBUT
1997 1996
TAC 11 000t 11 000t
Cdn. Quota 6 600t 5 500t
Domestic " mobile 840t 600t
" fixed 1 260t 900t
" special 400t* 0
Nunavut " inshore 1 000t 1 000t
" offshore 600t 500t
Foreign Charter 2 500t 2 500t
0A Exploratory 300t** 300t**
* To be divided evenly between LIDC, Torngat, Seaku Fisheries and Nunavik Arctic Foods and to be fished with domestic vessels.
** Not included in 6 600t Canadian quota.
1997 FOREIGN CHARTER ALLOCATIONS
Seafreez 1 900t
Clearwater 230t
Seaku Fisheries Inc. 70t
Nunavik Arctic Foods 70t
LIDC 70t
Torngat 160t
TOTAL 2 500t
The foreign charter fishery allocation is an allocation to six specific companies, two of which are from Nova Scotia (Seafreez in Canso, Clearwater in Bedford) while the four others (Seaku and Nunavik) and (Labrador Inuit Development Corporation and Torngat) are from Northern Quebec and Labrador and are partially or majority owned by Inuit in those areas.
The Nunavut Inuit share of the TAC increased from 8% in 1992 to 27.3% in 1996. It remained unchanged at 1 000t in 1994 in the NSA when the Canadian share of the TAC was reduced from 12 500t to 5 500t while, at the same time, the share available in Zone I for use by others was substantially reduced. With the 1997 allocation, the Nunavut Inuit share was reduced from 27.3% to 24%.
The Minister received conflicting recommendations on what the TAC should be for 1997 in the sub-areas 0B and 1B-F. While the Fisheries Resources Conservation Council recommended that the TAC be set below 11 000t, the NWMB advocated that it be maintained at the current 11 000t. The NWMB also advised the Minister that the Nunavut Inuit's share of 27.3% was an absolute minimum that ought to be increased and that Canada's share of the TAC should not be increased from 50% to 70% if Greenland did not accept a lesser share than their usual 50%.
There are obviously a number of other facts of importance to this appeal. However, it will be more convenient to discuss them under the specific grounds of appeal raised by the appellant. This should also avoid unnecessary and tedious repetitions.
The Minister's decision fixing the quotas was challenged by the respondent on May 6, 1997 by way of an originating notice of motion. The decision of Campbell J. was rendered on July 14, 1997 and an appeal was launched against it on that same day.
The principles applicable to the judicial review of the exercise of ministerial discretion
The Minister possesses absolute discretion under subsection 7(1) of the Fisheries Act, R.S.C. 1985, c. F-14, to issue or authorize to be issued leases and licences for fisheries or fishing. The rationale for such discretion is that Canada's fisheries are a common property resource belonging to all the people of Canada and licensing is a tool to manage fisheries which is given to the Minister whose duty it is to manage, conserve and develop that resource in the public interest (see Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12, at pages 25-26).
The actual exercise of such discretionary power is influenced by numerous fluctuating policy concerns which go beyond the necessary issue of conservation and protection of fish to include cultural, political, scientific, technical and socio-economic considerations or policies (see Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), supra, at page 30; Gulf Trollers Assn. v. Canada (Minister of Fisheries and Oceans), [1987] 2 F.C. 93 (C.A.), leave to appeal to the Supreme Court of Canada refused on March 24, 1987, [1987] 1 S.C.R. viii; MacKinnon v. Canada (Fisheries and Oceans), [1987] 1 F.C. 490 (T.D.), at page 496; Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102 (T.D.), at page 131). Also of relevance to the exercise of such discretion are any international policies that Canada promotes or adheres to as well as any legislative obligation that the Government may have assumed which bears directly on the issue of fishery and fetters either the Minister's discretion itself or the manner in which his discretion is to be exercised.
In our view, the Agreement between the Government and the Nunavut Inuit is one such obligation. The Agreement was implemented legislatively by the Nunavut Land Claims Agreement Act, S.C. 1993, c. 29 and subsection 6(1) of the Act, in case of inconsistency or conflict between the Agreement and any federal law, gives paramountcy to the Agreement to the extent of the inconsistency or conflict (see also, to the same effect, Section 2.2.3 of the Agreement).
As previously mentioned, the Agreement puts in place a regime for the co-ordinated management and harvesting of the wildlife in and around the NSA. While the final decision with respect to this matter rests with the Minister, it is clear that the Agreement imposes upon the Minister both procedural and substantive requirements which affect the manner in which the decision-making process, including the ministerial discretion to fix fishing quotas, is to be exercised. In our view, the Minister's discretion in section 7 of the Fisheries Act is no longer absolute when the exercise of that discretion affects the wildlife and the marine areas of the NSA and the wildlife management in Zones I and II.
Under the Agreement, the level of constraints imposed upon the Minister varies with the area where the ministerial decision is to take effect. Within the NSA, the NWMB is the main instrument of wildlife management and it has the primary responsibility of establishing, modifying or removing levels of total allowable harvest or harvesting of wildlife (see Sections 5.6.16 and 5.2.33 of the Agreement). In Zones I and II which are outside the NSA, both the primary and overall responsibilities over wildlife management are given to the Government but subject to some conditions and requirements, to be discussed later, which recognize the need for Inuit involvement in aspects of Arctic marine management (see Sections 15.1.1(g), 15.3.1, 15.3.4, 15.3.7 and 15.4.1 of the Agreement).
Having said that and reviewed the context in which the present exercise of ministerial discretion ought to be analysed, it bears repeating that the function of the Court in judicial review proceedings is not to "second guess" the Minister in his appreciation of the public needs and interest when fixing the fishing quotas and, then acting in his stead, proceed to substitute its views for that of the Minister. Parliament and the Governor in Council intended the Minister to enjoy in the exercise of his function and duty to establish and implement fishing quotas in the public interest "the widest possible freedom to manoeuvre" (see Carpenter Fishing Corp. v. Canada , [1998] 2 F.C. 548 (C.A.); Barron v. Minister of National Revenue, [1997] 2 C.T.C. 198 (F.C.A.)). "It is not the role of the Court . . . to become an academy of science to arbitrate conflicting scientific predictions, or to act as a kind of legislative upper chamber to weigh expressions of public concern and determine which ones should be respected" (see Vancouver Island Peace Society v. Canada , [1992] 3 F.C. 42 (T.D.), at page 51, per Strayer J.).
In other words, the Court in judicial review proceedings is concerned with the legality of the ministerial decision resulting from an exercise of discretion, not its opportunity, wisdom or soundness (see Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247 (C.A.), at page 260). This means, in this case, that the reviewing court ought to look at the manner in which the Minister exercised his discretion to determine whether the Minister acted in bad faith or on the basis of irrelevant factors, failed to take into account relevant factors or ignored relevant provisions which conditioned or limited the exercise of his otherwise absolute discretion (see Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pages 7-8; Canada (Attorney General) v. Purcell, [1996] 1 F.C. 644 (C.A.), at page 653; Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.), at page 240).
Analysis of the decision
The Motions Judge in his decision answered four questions submitted by the respondent and gave summary justifications for his conclusions which he, later in the decision, supplemented with additional reasons [at page 535] under the general heading "The Legality of the Decision". We propose to review his findings on each question together with the supplementary reasons in support of these findings.
Whether the Minister's decision infringed on the NWMB's sole authority to establish levels of allowable harvest in the NSA pursuant to Section 5.6.16 of the Agreement
The Minister's press release announcing his decision contained the following statement:
I am pleased to announce that more turbot will be available to Canadian fishermen this year.
The Minister was thereby indicating that the Canadian share of the TAC would be increased. The rest of the press release revealed the details of such increase and the repartition among fishermen. Surprisingly, the Motions Judge concluded from this opening statement that "[t]here is, therefore, a doubt left as to whether the Minister intended that southern fishers should have access to turbot in the NSA" (at page 534).
Not only was there no evidence to support such a conclusion by the Motions Judge, but the evidence is to the contrary. The total allowable harvest in the NSA remained unchanged in 1997 at 1 000t. The increased share of the TAC was to be fished in Zone I which, as defined in Section 1.1.1 of the Agreement, is outside the NSA. Consequently, the reviewing Judge was in error when he applied to the Minister's decision the requirements of Section 5.6.16 because the regime established in that Section, which gives the NWMB sole authority to establish levels of total allowable harvest in the NSA, has no application in Zone I. Rather, the conditions of exploitation of Zone I are governed by Article 15 which, as we shall see later, provides for a different regime and kind of involvement for the Nunavut Inuit. The Motions Judge ignored the definition of Zone I in the Agreement and, as a result, imported with respect to wildlife management decisions in Zone I the more stringent procedural requirements applicable in the NSA only.
Furthermore, the Motions Judge erroneously found that there was no meaningful prior consultation with the NWMB on the increased share of the TAC. He expressed his views as follows (at page 534):
Most importantly, there was no meaningful prior consultation with the NWMB on the apparently strongly held view of the Minister that the Canadian share of the TAC should increase, and as a result, the NWMB really had no opportunity to express a precise position on this view. Since the NWMB has the primary responsibility for setting quotas within the NSA, for the Minister not to have consulted on such an important proposal is a contravention of the Agreement.
Again, the Motions Judge was in error when he concluded that there was a violation of the Agreement. The increase of the share of the TAC was in Zone I over which it is the Minister, not the NWMB, who has the primary responsibility for setting quotas.
Moreover, the Chairperson of the NWMB wrote to the Minister on December 4, 1996 and argued as a major issue that Canada should not raise its share of the TAC unless Greenland agrees to reduce its own share (see paragraph 49(a) of the affidavit of the President of Nunavut Tunngavik Inc., Vol. I, Appeal Book, at page 9; see the letter, Vol. I, Appeal Book, at pages 69 and 71).
Pursuant to the NWMB's letter, the appellant held, on January 10, 1997, with representatives of the NWMB and the Government of the Northwest Territories, a conference call to seek their views on options for managing in 1997 the turbot stock in Sub-area 0. The NWMB reiterated its opposition to a unilateral increase of the Canadian share of the TAC and pointed out that such an increase would be contrary to the recommendations made by NAFO as well as the Fisheries Resource Conservation Council (see Vol. I, Appeal Book, at page 118).
Finally, the Chairperson and fisheries adviser of the NWMB met with the Minister and his advisers on February 19, 1997 and that increase of Canada's share of the TAC was discussed again among the participants. The NWMB reiterated its views that the increase should be negotiated with Greenland first (see affidavit of the respondent's president, Vol. I, Appeal Book, at page 9, paragraph 50(a)).
The Motions Judge's finding of fact that there was no meaningful consultation by the Minister of the NWMB prior to the making of his decision is arbitrary and contrary to the evidence.
Whether the Minister in making his decision failed to consider the advice of the NWMB as required by Sections 15.3.4 and 15.4.1 of the Agreement
Section 15.3.4 of the Agreement lies at the core of the present litigation as it determines some of the conditions under which wildlife management decisions in Zone I which would affect the harvesting rights of the Nunavut Inuit in the NSA ought to be taken:
15.3.4 Government shall seek the advice of the NWMB with respect to any wildlife management decisions in Zones I and II which would affect the substance and value of Inuit harvesting rights and opportunities within the marine areas of the Nunavut Settlement Area. The NWMB shall provide relevant information to Government that would assist in wildlife management beyond the marine areas of the Nunavut Settlement Area.
While Section 15.3.4 is to be found in a part titled PART 3: WILDLIFE MANAGEMENT AND HARVESTING BEYOND THE MARINE AREAS OF THE NUNAVUT SETTLEMENT AREA, Section 15.4.1 appears in another part called PART 4: MARINE MANAGEMENT. It reads:
15.4.1 The NIRB, the NWB, the NPC, and the NWMB may jointly, as a Nunavut Marine Council, or severally advise and make recommendations to other government agencies regarding the marine areas, and Government shall consider such advice and recommendations in making decisions which affect marine areas.
The Motions Judge concluded that the Minister failed to consider the advice of the NWMB in making his decision. The least we can say is that the reasons supporting his conclusion are far from being clear.
First, he found that the Minister had a duty under Section 15.4.1 to consider the advice and recommendations of the NWMB. He then ruled that the scope and extent of the word "consider" must be examined on a case-by-case basis and that, in the context of this case, the duty to consider entails much more than the Minister receiving and examining the advice and recommendations given by the NWMB (at page 537). After having also ruled that the intent of the agreement requires a "meaningful inclusion of the NWMB in the Governmental decision-making process before any decisions are made", he went on to say at page 538:
Regarding consideration under Article 15.4.1, there must be full, careful and conscientious consideration of any advice or recommendation made by the NWMB respecting decisions which affect marine areas, and in this context, allowance must be made for the advice or recommendations. This latter requirement means that, if a given position is not accepted by the Government for implementation, at the very least, out of respect, an explanation for so doing should be provided to the NWMB.
In addition, the reviewing Judge ruled that, with respect to wildlife management, the Nunavut Inuit must "be given priority consideration" and, therefore, that "consultation and consideration must mean more than simply hearing. It must include listening as well".
A reading of the Motions Judge's reasons gives the distinct impression that he meant to say, without ever saying it openly, that the Minister is or ought to follow the recommendations of the NWMB. To hear and to listen can both have the meaning of "to give an ear to someone". They are often used as synonyms. However, when the two words are opposed as the Motions Judge did, the verb "listen" may be given the extended sense of, and therefore mean, "to obey" (see Oxford English Dictionary . Oxford: Clarendon Press, 1970, at pages 156 and 338; Chambers 20th Century Thesaurus: a Comprehensive Word-Finding Dictionary. Edinburgh: Chambers, 1986, at page 378; Random House Dictionary of the English Language, 2nd ed. New York: Random House, 1987, at pages 882 and 1121; Collins COBUILD English Language Dictionary. London: Collins, 1987, at pages 672 and 849; West's Legal Thesaurus / Dictionary. Special deluxe ed., St. Paul, Minn.: West Pub. Co., 1986, at page 462; Petit Robert 1: Dictionnaire alphabétique et analogique de la langue française. Montréal: Les Dictionnaires Robert-Canada S.C.C., 1989, aux pages 602 and 653).
If he meant to say that the Minister is bound by the advice given by the NWMB, then he is plainly wrong. Section 15.3.4 of the Agreement aims at ensuring that Nunavut Inuit will be consulted with respect to wildlife management decisions in Zones I and II which would affect the substance and value of their harvesting rights within the marine areas of the NSA. Because turbot are migratory fish, the allocation of turbot fishing quotas and licences in Zones I and II is such a decision. This is why an obligation is put on the Government to seek the advice of the NWMB. Although it is not expressly mentioned in Section 15.3.4, it is to us implicit in that section that the Government shall consider the advice that it must seek and there is no need to resort to Section 15.4.1 to find such a duty. Otherwise, the duty imposed upon the Government to seek advice is absolutely meaningless. Consequently, Section 15.3.4 puts procedural restrictions on the Minister's exercise of discretion which are satisfied when the Minister in good faith seeks and considers the views of the NWMB. The NWMB's function with respect to management decisions in Zones I and II is merely advisory and the Minister is not bound by such advice. This is the process retained by the parties to the Agreement with respect to Zones I and II to ensure the participation of the Nunavut Inuit in the decision-making process concerning the harvesting of wildlife outside the NSA.
Furthermore, the Minister is not required under Article 15 of the Agreement to provide reasons to the NWMB should he decide not to follow its views. This is made clear by the provisions of Sections 5.3.18 and 12.6.14 which impose a duty upon the Minister to give reasons to the NWMB when it rejects the NWMB's decision relating to wildlife management within the NSA as well as to the Nunavut Impact Review Board for every decision in so far as it applies to the NSA. The Agreement clearly differentiates between Government management decisions within the NSA and those outside the NSA which may affect wildlife within the NSA. Procedural requirements are less stringent on the Minister's exercise of discretion outside the NSA. This is understandable as the adjacent Zones I and II are not part of the NSA and numerous other interests, including international obligations, impact on the management of these zones. Had it been the intention of the parties to compel the Minister to give reasons when he decides within the context of Section 15.3.4 not to follow the advice of the NWMB, they would have imposed such a duty upon him as it was done in Sections 5.3.18 and 12.6.14.
In the present case, there is clear evidence that the Government sought the advice of the NWMB in compliance with Section 15.3.4 and received in writing, on December 4, 1996, the views of the NWMB. As previously mentioned, it also held a conference call on January 10, 1997 with representatives of the Board to discuss their recommendations and this conference call was followed on February 19, 1997 by a meeting with the Minister (see references supra).
Counsel for the appellant submitted that Section 15.4.1 has no application in this litigation because it relates to decisions which affect marine areas and such areas, as defined by Section 1.1.1 of the Agreement, are located within the NSA, not in Zone 1. In addition, in the absence of a definition of "Marine Management", he argued that this provision of the Agreement applies more generally to broader ecological and environmental considerations and concerns rather than specific management decisions such as the establishment of the TAC and the allocation of fishing licences. He found support for his views in the heading of the part MARINE MANAGEMENT and the nature of the bodies which may provide advice, i.e., the Nunavut Impact Review Board (NIRB), the Nunavut Water Board (NWB), the Nunavut Planning Commission (NPC) and the NWMB.
It is not necessary for us to decide the scope of application of Section 15.4.1 and whether it is limited to environmental concerns as the appellant submitted. The fact is that the first part of Section 15.4.1 is permissive in that the boards enumerated therein may jointly or severally advise or make recommendations to other agencies of the Government. When they do, the Government is under the obligation to consider such advice and recommendations. There is no duty on the Government, as in Section 15.3.4 with respect to wildlife management decisions, to seek the advice of any of the boards mentioned in Section 15.4.1 with respect to decisions which affect marine areas defined in Section 1.1.1, that is to say that part of Canada's internal waters or territorial sea, whether open or ice covered, lying within the NSA, to the exception of inland waters.
In any event, to the extent that Section 15.4.1 might be said to be applicable to the specifics of this case because turbot are migratory fish and the fishing in Zone I might affect marine areas in the NSA, the truth is that only the NWMB made recommendations or gave advice to the Government. Such advice was considered by the Government and rejected for the most part.
In conclusion, the Motions Judge misdirected himself as to the scope of the Government's obligations in Section 15.3.4 and in Section 15.4.1 of the Agreement to the extent that it could be applicable. As a result of such misdirection, he misread the evidence that was before him. He was wrong in his conclusion that the Minister failed to consider the advice of the NWMB.
Whether the Minister failed to give special consideration to the principles of adjacency and economic dependence as is required by Section 15.3.7 of the Agreement
Section 15.3.7 of the Agreement contains an acknowledgment by the Government of the importance of the principles of adjacency and economic dependence of communities in the NSA on marine resources as well as an obligation for the Government to give special consideration to these factors when allocating commercial fishing licences within Zones I and II. A quotation of that Section is in order for a better understanding of the Motions Judge's decision as well as the contention of the parties before us:
15.3.7 Government recognizes the importance of the principles of adjacency and economic dependence of communities in the Nunavut Settlement Area on marine resources, and shall give special consideration to these factors when allocating commercial fishing licences within Zones I and II. Adjacency means adjacent to or within a reasonable geographic distance of the zone in question. The principles will be applied in such a way as to promote a fair distribution of licences between the residents of the Nunavut Settlement Area and the other residents of Canada and in a manner consistent with Canada's interjurisdictional obligations.
The Motions Judge concluded that the Minister failed to give special consideration to these two principles when he allocated commercial fishing licences in Zone I. He found such failure in the Minister's rejection with no reason given of the NWMB's request for unrestricted groundfish licences as enjoyed by southern fishers. He was of the view that the Minister was more concerned with the economic interests of fishers other than those of Nunavut Inuit. He gave to the words "special consideration" a meaning which, in our view, amounts to nothing less than a redrafting of Section 15.3.7 of the Agreement. At pages 538 and 539 of his decision, he wrote:
In implementing this provision, the term "special consideration" must be interpreted to mean that the communities in the NSA have priority consideration for licences in Zones I and II over any other competing party, and the allocations must clearly reflect this principle.
With such a meaning given to the words "special consideration", it is not surprising that the Nunavik from Northern Quebec sought and were granted leave to intervene in this appeal. They claim that they too should have priority consideration in Zones I and II, especially in Zone II which is within Nunavik offshore areas. Therefore, they request this Court to set aside that portion of the Motions Judge's decision which gives the Nunavut Inuit priority consideration over everyone, including Nunavik Inuit.
Counsel for the respondent submitted at the hearing that the terms "priority consideration" used by the Motions Judge mean "priority of access" to the quotas and licences and, therefore, that the Nunavut Inuit, on account of the adjacency and economic dependence principles, should obtain 80% of the quotas. In coming to that conclusion, counsel for the respondent relied upon a backgrounder paper on adjacency circulated within the ministry of Fisheries and Oceans Canada which, basically, defines adjacency as "the principle that those who reside next to the resource or have traditionally fished in those waters should have priority of access to it" (see Vol. I, Appeal Book, at page 81).
He also relied upon the following passage of the decision of the Supreme Court of Canada in R. v. Sparrow, [1990] 1 S.C.R. 1075, at page 1116:
The constitutional nature of the Musqueam food fishing rights means that any allocation of priorities after valid conservation measures have been implemented must give top priority to Indian food fishing. If the objective pertained to conservation, the conservation plan would be scrutinized to assess priorities. While the detailed allocation of maritime resources is a task that must be left to those having expertise in the area, the Indians' food requirements must be met first when that allocation is established.
We do not think that this decision is of assistance to the respondent and supports its claim for a priority of access that its counsel quantified at 80% of the fishing quotas. The Sparrow case is clearly distinguishable from the facts at issue here. In Sparrow, the priority of access related to an Aboriginal right to fish for food, not to fish commercially as in the present case. What was meant by priority of access in that context appears from the following explanation still at page 1116:
The significance of giving the aboriginal right to fish for food top priority can be described as follows. If, in a given year, conservation needs required a reduction in the number of fish to be caught such that the number equalled the number required for food by the Indians, then all the fish available after conservation would go to the Indians according to the constitutional nature of their fishing right. If, more realistically, there were still fish after the Indian food requirements were met, then the brunt of conservation measures would be borne by the practices of sport fishing and commercial fishing.
Furthermore, the priority of access related to an Aboriginal right which had not been extinguished. Here, the Agreement is the result of a negotiated land claims settlement whereby the Nunavut Inuit receive defined rights and benefits in exchange for surrender of any claims, rights, title and interests based on their assertion of an Aboriginal title (see the preamble of the Agreement). Therefore, we have to look at the terms of the Agreement to determine the rights and benefits obtained in exchange for the surrender.
A purposive interpretation of Section 15.3.7 evidences an intention of the parties to the Agreement to establish a principle of equity, not one of priority, in the distribution of commercial fishing licences within Zones I and II. In addition, the balancing of interests between the residents of the NSA and other residents of Canada has to be consistent with Canada's interjurisdictional obligations. No one, in the context of the present appeal, has tried to ascribe a meaning to the terms "interjurisdictional obligations" and it is not necessary to do so in order to dispose of the appeal. It is clear, however, that such a requirement which affects the distribution of licences is incompatible with a principle of priority of access, especially one of the magnitude claimed by the respondent.
The principles of adjacency and economic dependence to which the Minister has to give special consideration when allocating commercial fishing licences within Zones I and II are not defined as such in the Agreement. However, the word "adjacency" is defined in Section 15.3.7 itself to mean adjacent to or within a reasonable geographic distance of the zone in question. Had the parties intended the principle of adjacency to mean "priority of access" to the residents of the NSA or, as the Motions Judge ruled, priority consideration to the communities of the NSA for licences in Zones I and II over any other competing party, Section 15.3.7 would have been written quite differently.
First, the provision would have spoken in terms of priority of access. Second, it would have clearly given such priority to the communities of the NSA and would not have extended it, as it does, to all those who are within a reasonable geographic distance of the zone in question. Third, it would not have adopted a principle of fair distribution of licences between the residents of the NSA and the other residents of Canada. Finally, as previously mentioned, it would not have subjected the fair distribution principle to an obligation to respect Canada's interjurisdictional obligations. The provision would have been given quite a different style and content.
Section 15.3.7 imposes a duty on the Government to give a special consideration to the adjacency and economic dependence principles. This duty aims at guaranteeing to the Nunavut Inuit that, in the allocation of commercial fishing licences, their commercial dependence on marine resources, in view of their proximity to these resources, will be considered by the licensing authority. Special consideration of these principles in the equitable context of Section 15.3.7 means that a particular and appropriate attention ought to be given to these principles when balancing the fierce competing interests at stake with a view to promoting a fair balance in the distribution of commercial fishing licences in these zones, that is to say one which either clearly reflects a proper application of these principles or leads a reasonable observer to conclude that the principles cannot have been overlooked in view of the fairness of the end result, bearing in mind all the other factors that the Minister has to consider in the exercise of his discretion. In terms of result, this means that, barring exceptional or unusual circumstances, the application of these principles should be reflected in the final distribution of licences and quotas by the Minister, such distribution indicating a proportion which, in view of all the other constraints on the Minister, including those of Section 15.3.7, is fair in the circumstances.
In our view, the Motions Judge gave an erroneous interpretation to Section 15.3.7, one which does not accord with the intention of the parties to the Agreement and does violence to the text of the provision to the detriment of other Inuit communities who live within a reasonable geographic distance from the zones in question and are also economically dependent of the marine resources. However, we believe that he was right in his conclusion as it will become apparent from a review of the fourth question that he was called upon to examine.
Whether the Minister applied the principles of adjacency and economic dependence in such a way as to promote a fair distribution of the turbot fishery between the residents of the Nunavut Settlement Area and the other residents of Canada
The Motions Judge concluded that there had not been a fair distribution of licences between the residents of the NSA and the other residents of Canada because the Minister had given no special consideration to the adjacency and economic dependence of communities in the NSA. His finding is open to serious questioning in view of the erroneous interpretation he gave to the words "special consideration". However, the respondent's complaint is that there was not a fair distribution of the turbot fishery because the Minister did not follow at all the directions of Section 15.3.7.
As we have said, it is not the role of the Court to "second-guess" the merits of the decision of the Minister. But the respondent's complaint involves the legality of the ministerial decision. Section 15.3.7 imposes substantive conditions on the Minister's exercise of his discretion in allocating commercial fishing licences in Zones I and II. In the absence of explanations given by the Minister as to how and why, in the exercise of his discretion, he arrived at the distribution of quotas that he did, it is difficult to know not only whether he applied the adjacency and economic dependence principles, but whether he properly construed these principles and then applied them correctly. As Strayer J.A. said in Williams v. Canada (Minister of Citizenship and Immigration) , [1997] 2 F.C. 646 (C.A.), at page 673, the decision can be set aside "not because of a lack of reasons per se but because in the absence of reasons it is not possible to overcome the perversity or error derived from the result or surrounding circumstances of the decision".
In his attempt to justify the Minister's decision, counsel for the appellant has directed our attention in the Appeal Book to a series of questions and answers prepared by the Department to assist the Minister in answering eventual questions, but there is no evidence that the information contained in such document was ever released publicly or that the Minister, in coming to his decision, considered some of the elements mentioned in this standard document often prepared for press conferences (see Vol. I, Appeal Book, at pages 148-151). Therefore, the document is of no help. We have to review the record before the Minister at the time of the decision, not to review the merits of it, but rather to ensure that the Minister addressed the issues required by law and conformed to whatever legal constraint is put on his discretion (see Cantwell v. Canada (Minister of the Environment) (1991), 6 C.E.L.R. (N.S.) 16 (F.C.T.D.), at page 32).
First, the Nunavut Inuit who, in their December 4, 1996 letter to the Minister already requested additional quotas from the usual 5 500t Canadian share of the TAC on the basis of these principles in Section 15.3.7 of the Agreement, were given only 100t out of the 1 100t increase of the share of the TAC. This means that the Nunavut Inuit obtained only 9% of Canada's unilateral increase of its share of the TAC. At the same time, Labrador Inuit who are not adjacent to Zone I and Nunavik Inuit received 36% of the increase (400t). Finally, Newfoundland fishermen who also are not adjacent to Zone I were allocated 55% (600t) of the quotas (see the memorandum of the Deputy Minister to the Minister pointing out that Sub-area 0 in which Zone I is located is not adjacent to Newfoundland and Labrador, Vol. I, Appeal Book, at page 103). In terms of individual increases, the percentages were as follows:
Nunavut: 7%
Nunavik and Labrador Inuit: 108%
Newfoundland: 40%
(see the Atlantic Groundfish Management Plan 1996, Vol. I, Appeal Book, at page 86).
Second, as a result of the Minister's decision, the Nunavut Inuit share of the TAC was reduced from 27% to 24%.
Third, while the Nunavut Inuit share of the TAC was reduced, the share of the competitive fishery increased from 27% to 32%. The fishermen in that category of licensees do not satisfy the definition of adjacency since they are primarily from Newfoundland and, therefore, not within a reasonable geographic distance from Zone I.
Fourth, the Minister knew both of the demands of the Nunavut Inuit for additional quotas based on the adjacency and economic dependence principles, and the fact that the Nunavut Inuit considered their actual share of the TAC to be an absolute minimum (see the NWMB letter of December 4, 1996 to the Minister, Vol. I, Appeal Book, at pages 70-71). Yet, notwithstanding a 20% increase by Canada of its share of the TAC which is 10% of the overall TAC, he allocated to them only a slight portion of the increase which had the effect of reducing their share of that overall TAC.
Fifth, the Minister was informed by his Deputy Minister that the increase of 100t out of the 1 100t increase to the Nunavut Inuit, who are the most adjacent to the resource, was open to criticism especially when compared to the increased access (400t) by Labrador and Northern Quebec Inuit (see memorandum to the Minister dated March 18, 1997, Vol. I, Appeal Book, at page 141).
Finally, in a memorandum to the Minister dated March 4, 1997, the Deputy Minister recommended an allocation to the Nunavut Inuit of 300t from the 1 100t increase in Canada's quota (see Vol. I, Appeal Book, at pages 133-134). As we know, only one-third of that figure was given to the Nunavut Inuit.
There is no doubt that the allocation of fishing quotas is a daunting task for the Minister and requires a balancing of competing interests. As our colleague Décary J.A. said in the Carpenter Fishing Corp. case (supra), at page 565:
Quotas invariably and inescapably carry with them some element of arbitrariness and unfairness. Some fishermen may win, others may lose, some may win or lose more than others, most if not all will find themselves with less catches than before.
However, in the present case, what was involved was not a reduction but rather an increase of the fishing quotas whose allocation was subject to some specific provisions of the Agreement which constrained the exercise of the Minister's discretion. The Minister may have had good and valid reasons to come to the conclusion that he did. We do not know and we cannot guess. But in the absence of explanations or reasons for coming to that conclusion which would indicate not whether the decision was right or wrong, but whether the decision was lawful (see R v Civil Service Appeal Board, ex p Cunningham, [1991] 4 All ER 310 (C.A.), at page 319), we are left with the curious result and the surrounding circumstances of the exercise of his discretion which, in our view, lead to a reasonable inference that the Minister either did not give special consideration to the adjacency and economic dependence principles as required by the Agreement or misconstrued these principles when allocating commercial fishing licences within Zone I.
The demands of the intervener
The intervener, Makivik Corporation, represents the Inuit of Northern Quebec (Nunavik Inuit). The Nunavik Inuit are maritime people who reside in 15 communities in Northern Quebec, along the coast of Hudson Bay, Hudson Strait, Ungava Bay and the Quebec/Labrador Peninsula. They essentially live north of the 55th parallel. They are neighbours to the Nunavut Inuit and share with them the resources of the offshore areas.
Basically, the intervener supports the decision of the Motions Judge, but requests that this Court sets aside that portion of the judgment where the Motions Judge directs that implementation of Section 15.3.7 of the Agreement must mean that communities in the NSA have priority for licences in Zones I and II over everyone, including the Nunavik Inuit.
In view of our rejection of the "priority consideration" principle erroneously adopted by the Motions Judge in his interpretation of Section 15.3.7, this demand of the intervener is moot.
Counsel for the intervener submitted at the hearing that the Nunavik Inuit also are entitled to benefit from the adjacency and economic dependence principles and that the Judge should have given instructions to that effect in his order to the Minister to reconsider his decision. The short answer to this contention is twofold.
First, Section 15.3.7 which contains these principles does not apply to Nunavik Inuit. Second, the definitions of Zones I and II in Section 1.1.1 of the Agreement refer to waters that "are not part of . . . another land claim settlement area". This means that these principles are open to, or the subject of, negotiations in other land claims settlement.
As a matter of fact, counsel for the intervener informed us that there are ongoing discussions between the Nunavik Inuit and the governments for the eventual signature of a Northern Quebec Inuit Offshore Land Claims Agreement. It is not incumbent on us to decide whether the Nunavik Inuit should have the benefit of these principles in the context of their land claims agreement. This matter is best left to the forum where it presently is and belongs. We should not pre-empt the ongoing process by unwisely venturing to sail into what are for us uncharted waters.
For these reasons, the appeal should be dismissed with costs. The issue of the allocation of fishing quotas for 1997 is probably moot now, but the appeal raised important questions of interpretation of the Agreement for future allocations of quotas and distribution of fishing licences. Although we dismiss the appeal, we should vary the order to delete from it the Minister's obligation to act in accordance with the Motions Judge's reasons as we have found these reasons to be erroneous. Therefore, the order of the Motions Judge should be varied to read:
I set aside the Minister's decision of April 7, 1997 as being contrary to law, and refer the matter to the present Minister for reconsideration.
The intervention should be dismissed without costs.