T-374-99
Animal Alliance of Canada, Animal Protection Institute, Canadian Environmental Defence Fund, Dene Nation, and Zoocheck Canada Inc. (Applicants)
v.
The Attorney General of Canada and The Minister of the Environment (Respondents)
Indexed as: Animal Alliance of Canada v. Canada (Attorney General) (T.D.)
Trial Division, Gibson J."Toronto, April 14; Ottawa, May 13, 1999.
Environment " Regulations Amending Migratory Birds Regulations ultra vires in so far as purporting to authorize killing of Ross geese and other species not easily distinguishable from snow geese during certain periods " Nothing in Migratory Birds Convention Act, 1994 or Migratory Birds Convention to support provisions of Amending Regulations relating thereto.
This was an application for judicial review in respect of the making by the Governor in Council, on the recommendation of the Minister of the Environment, of the Regulations Amending the Migratory Birds Regulations (Amending Regulations) creating a special hunting season in which hunters may kill certain overabundant species of snow geese, including Ross geese and other species not easily distinguishable from snow geese. The Amending Regulations were enacted to curtail the rapid populations growth and reduce population size to a level consistent with the carrying capacity of breeding habitats. The applicants argued (1) that the Amending Regulations were in conflict with the 1916 Migratory Birds Convention and therefore ultra vires the implementing legislation; (2) that the Amending Regulations also contravened the purpose of the Convention; (3) that Environment Canada was attempting through these Regulations to regulate the environment; (4) that there was unlawful sub-delegation and fettering of discretion; (5) that the failure to follow Environment Canada's policy for regulating wildlife and Treasury Board's Federal Regulatory Policy violated the law and doctrine of legitimate expectation; (6) that the Regulations were based on erroneous findings of fact made in a perverse or capricious manner or without proper regard to the relevant material; (7) that there was no legal basis for including the Ross geese as a species that could be hunted outside the close season; (8) that the Regulations violated the rights of the Aboriginal Peoples.
Held, the Regulations Amending the Migratory Birds Regulations were ultra vires only in so far as they purported to authorize the killing of Ross geese and other species that are not easily distinguishable from snow geese, during the periods and in the areas or districts specified in Table 1.2 set out in those Regulations.
The question to be addressed on this application was whether or not the Governor in Council, in enacting the Amending Regulations, failed to observe a condition precedent to the exercise of its power or exceeded its jurisdiction. The motives for adopting the Amending Regulations were not to be investigated or questioned.
The Migratory Birds Convention entered into in 1916 between Canada and the United States of America was directed to ensuring the preservation of certain migratory birds, including snow geese and Ross geese, by restricting the hunting season for these birds. Article VII of the Convention contemplated "permits to kill" snow geese and Ross geese during the "close season" "under extraordinary conditions". The stated purpose of the Migratory Birds Convention Act, 1994 , which replaced a former implementing legislation, was to implement the Convention by protecting migratory birds and nests. Subsection 12(1) thereof authorized the Governor in Council to make regulations providing for the periods during which migratory birds may be killed, captured or taken.
While the Amending Regulations were justified under the Act and Convention in order to deal with the overabundance of the snow goose population, amounting to extraordinary conditions which could become seriously injurious to the arctic ecosystem, there was nothing on the face of subsection 12(1) of the Act and Article VII of the Convention to support those provisions of the Amending Regulations relating to Ross geese and "other species that are not easily distinguishable from snow geese".
The applicants have not met the onus of establishing that there had been unlawful sub-delegation and fettering of discretion by letting the Trilateral Committee representing Mexico, the United States of America and Canada identify the species to be considered as having overabundant populations.
The failure to follow Environment Canada's policy for regulating wildlife and the Treasury Board of Canada's Federal Regulatory Policy did not violate the law and the doctrine of legitimate expectation. There were no omissions on the part of the Minister.
Except as previously noted in relation to Ross geese and other species that are not easily distinguishable from snow geese, there was no reviewable error in the nature of an erroneous finding of fact made in a perverse or capricious manner or without proper regard to relevant material.
While there was no doubt that the Amending Regulations impact on traditional and constitutionally protected interests of First Nations peoples and, perhaps, also on Treaty interests, there were consultations and, on the evidence, it could not be determined that the Amending Regulations constituted a prima facie infringement of Aboriginal rights.
| statutes and regulations judicially considered |
| Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]. |
| Migratory Birds Convention, Arts. I, II, VII, Schedule to the Migratory Birds Convention Act, 1994, S.C. 1994, c. 22. |
| Migratory Birds Convention Act, 1994, S.C. 1994, c. 22, ss. 4, 12. |
| Migratory Birds Convention Act (The), S.C. 1917, c. 18. |
| Regulations Amending the Migratory Birds Regulations, SOR/99-147. |
| cases judicially considered |
| applied: |
| Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1; 33 N.R. 304; Angus v. Canada, [1990] 3 F.C. 410; (1990), 72 D.L.R. (4th) 672; 5 C.E.L.R. (N.S.) 157; 111 N.R. 321 (C.A.); Thorne's Hardware Ltd. et al. v. The Queen et al., [1983] 1 S.C.R. 106; (1983), 143 D.L.R. (3d) 577; 46 N.R. 91; Re Doctors Hospital and Minister of Health et al. (1976), 12 O.R. (2d) 164; 68 D.L.R. (3d) 220; 1 C.P.C. 232 (Div. Ct.); Pulp, Paper and Woodworkers of Canada, Local 8 et al. v. Canada (Minister of Agriculture) et al. (1994), 174 N.R. 37 (F.C.A.); Halfway River First Nation v. British Columbia (Minister of Forests), [1998] 4 W.W.R. 283; (1997), 39 B.C.L.R. (3d) 227; [1997] 4 C.N.L.R. 45 (S.C.); R. v. Sparrow, [1990] 1 S.C.R. 1075; (1990), 70 D.L.R. (4th) 324; [1996] 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: |
| R. v. Badger, [1996] 1 S.C.R. 771; (1996), 133 D.L.R. (4th) 324; [1996] 4 W.W.R. 457; 181 A.R. 321; 37 Alta. L.R. (3d) 153; 105 C.C.C. (3d) 289; [1996] 2 C.N.L.R. 77; 195 N.R. 1; 116 W.A.C. 321; Makivik Corp. v. Canada (Minister of Canadian Heritage), [1999] 1 F.C. 38; (1998), 164 D.L.R. (4th) 463; [1998] 4 C.N.L.R. 68; 151 F.T.R. 69 (T.D.). |
| referred to: |
| Schavernoch v. Foreign Claims Commission et al., [1982] 1 S.C.R. 1092; (1982), 136 D.L.R. (3d) 447; 44 N.R. 166; Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; (1993), 103 D.L.R. (4th) 1; 20 Imm. L.R. (2d) 85; 153 N.R. 321; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; (1990), 74 D.L.R. (4th) 449; 45 Admin. L.R. 161; 114 N.R. 81; 3 T.C.T. 5303; 4 T.T.R. 267; Salomon v. Commissioners of Customs and Excise, [1967] 2 Q.B. 116 (C.A.); Vic Restaurant v. The City of Montreal, [1959] S.C.R. 58; (1959), 17 D.L.R. (2d) 81; Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373 (Ch. D.); Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; (1978), 88 D.L.R. (3d) 671; 78 CLLC 14,181; 23 N.R. 410. |
| authors cited |
| Arctic Goose Habitat Working Group. Arctic Ecosystems in Peril: Report. Washington, D.C.: U.S. Fish and Wildlife Service, 1997. |
| Arctic Goose Habitat Working Group. The Greater Snow Goose: Report. Washington, D.C.: U.S. Fish and Wildlife Service, 1998. |
| Objectives and Guidelines for Establishment of National Regulations for Migratory Game Bird Hunting, revised September 1997, Appendix A to "Migratory Game Birds in Canada Proposals for 1999/2000 Hunting Regulations", December 31, 1998. |
| 133 Canada Gazette, Part I, p. 227 (30 January, 1999). |
| Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994. |
APPLICATION for judicial review attacking the Regulations Amending the Migratory Birds Regulations. The Amending Regulations are ultra vires in so far as they purport to authorize the killing of Ross geese and other species that are not easily distinguishable from snow geese, during the periods and in the areas or districts specified in Table 1.2 set out in those Regulations.
| appearances: |
| David Estrin and Lesli Bisgould for applicants. |
| Peter A. Vita, Q.C. and Cassandra Kirewskie for respondents. |
| solicitors of record: |
| Gowling, Strathy & Henderson, Toronto, for applicants. |
| Deputy Attorney General of Canada for respondents. |
The following are the reasons for order rendered in English by
Gibson J.:
(1) INTRODUCTION
By P.C. 1999-526, dated March 25, 1999,1 the Governor in Council, on the recommendations of the Minister of the Environment, pursuant to section 12 of the Migratory Birds Convention Act, 1994,2 enacted Regulations Amending the Migratory Birds Regulations (the Amending Regulations). [. . .] A draft of the Amending Regulations, subsequently somewhat modified before enactment, was published in the Canada Gazette, Part I on January 30, 1999.3 [. . .]
The respondents' explanation of the circumstance giving rise to the Amending Regulations and of their substance is succinctly summarized in the first three paragraphs of the Regulatory Impact Analysis Statement under the heading "Description". Those three paragraphs are quoted here for ease of reference:
Description
In recent years, populations of greater and mid-continent lesser snow geese have dramatically risen. The rapid population growth is attributed to increased food availability during winter months from agricultural operations, and a declining rate of mortality. As a result, these birds are no longer controlled by the carrying capacity of winter habitat as they were previously. Analysis of their effects on staging and arctic breeding habitats shows that key habitats for migratory birds and other wildlife are being adversely affected by overuse. Left unchecked, overabundant snow goose populations may become seriously injurious to migratory birds themselves, and will compromise the biological diversity of the arctic ecosystem.
To curtail the rapid population growth and reduce population size to a level consistent with the carrying capacity of breeding habitats, the mortality rate must be increased by two to three times the current level. This amendment to the Migratory Birds Regulations creates a special season in which hunters may take overabundant species for conservation reasons. This will help protect and restore the biological diversity of arctic wetland ecosystems and the ecosystems of important migration and wintering areas by reducing the population size of overabundant snow goose populations. This will be accomplished by extending the time periods during which hunting may take place (e.g. spring and/or early fall, outside the dates of the regular hunting season). In 1999, this will occur in selected local areas of the Provinces of Quebec and Manitoba. Hunters also will be allowed to use special hunting methods and equipment, including electronic calls, hunt in lure crops, and use artificial or natural bait, each in specified local areas as determined in consultation with the provincial government and local communities.
Finally, this amendment will allow for an increase in the harvest of Ross geese. Ross geese and snow geese frequent the same areas and cannot be easily distinguished when hunting. The Ross goose population can withstand increased harvest pressure because the population size is increasing rapidly, and is at a record high level.
One feature of the Amending Regulations not mentioned in the foregoing quotation is that the Amending Regulations also authorized the killing of species of birds other than snow geese and Ross geese "that are not easily distinguishable" from snow geese and Ross geese.
(2) NATURE OF THE PROCEEDING GIVING RISE TO THESE REASONS
By application filed March 4, 1999, the applicants sought judicial review "In respect of the proposed making by the Governor in Council on the recommendation of the Minister of Environment of" the Amending Regulations as they were published in the Canada Gazette, Part I on January 30, 1999.
The application for judicial review was filed before the Amending Regulations were enacted. Thus, the application recited reliefs contingent upon a decision prior to enactment of the Amending Regulations. Since the application was not heard until after the Amending Regulations were enacted, much of the relief originally sought has become outdated.
On the face of the applicants' memorandum of fact and law, the relief sought was reduced to the following:
The Applicants respectfully request an order declaring SOR/99-147 registered on March 25, 1999, The Regulations Amending the Migrating [sic] Birds Regulations, are ultra vires, unlawful, violate s. 35 of the Canadian Charter of Rights and Freedoms [sic] and are of no force and effect.
(3) THE GROUNDS URGED IN SUPPORT OF THE RELIEF SOUGHT
Once again I turn to the applicants' memorandum of fact and law where nine grounds are urged as supporting the relief sought. They are in the following terms:
| A. The challenged regulation conflicts with the 1916 Migratory Birds Convention and is therefore ultra vires the implementing legislation. The 1916 Convention has as its raison d'être the protection of migratory birds from hunting and other human initiated actions which kill or threaten such birds. The Migratory Birds Convention Act's stated purpose is to "implement the Convention". However, a central aspect of the challenged regulation is to authorize a new spring hunting season in order to drastically reduce the population of certain geese species. |
| B. The challenged regulation also contravenes the purpose of the Convention because the purpose of the Convention (and therefore the ambit of a regulation under the Act) is restricted to protect migratory birds during the nesting season or while on their way to and from the breeding grounds, whereas one desired Environment Canada result of the challenged regulation is to "increase hunting opportunities and harvest pressure on these species" by allowing these geese to be shot while on their way to the breeding grounds. |
| C. Environment Canada is attempting through this regulation to regulate the environment. This is a matter in respect of which the Migratory Birds Convention provides no authority. |
| D. The regulation is not authorized by either Article II or VII of the Convention. |
| E. Unlawful Sub-Delegation and Fettering of Discretion. |
| F. The failure to follow Environment Canada's Policy for regulating wildlife and the Treasury Board of Canada's Federal Regulatory Policy violates the law and the doctrine of legitimate expectation. |
| G. The Regulation is based on erroneous findings of fact made in a perverse or capricious manner or without proper regard to relevant material. |
| H. Assuming there is a legally valid basis for the challenged regulation, there is nevertheless no legal basis whatsoever for this regulation to include Ross' geese as a species that can be hunted outside the close season. |
| I. (i) The actions of the Minister and the Governor in Council in formulating and making these regulations have violated and constitute a continuing fundamental deprivation of the constitutionally protected rights of Aboriginal peoples to be meaningfully consulted and involved in respect of governmental actions, programmes and permitting activities related to wildlife resources in respect of which Aboriginal peoples have traditional, Treaty, and constitutionally protected interests. |
| (ii) The Minister and the Governor in Council have ignored and breached their fiduciary duty to Aboriginal peoples, which duty requires, inter alia, that the Minister and the Governor in Council obtain and objectively consider information as to the likely impacts that the regulations will have on Aboriginal persons, communities and the wildlife upon which they depend or have interests, prior to formulating and advocating such proposals, and avoid such actions where negative impacts are likely. |
(4) STANDARD OF REVIEW
Counsel for the respondents urged that, although the exercise of statutory authority vested in the Governor in Council is not beyond review, as a general rule, decisions made by the Governor in Council in matters of public convenience and general policy are final and are not reviewable in legal proceedings.
In Attorney General of Canada v. Inuit Tapirisat of Canada et al.,4 Mr. Justice Estey, for a unanimous Supreme Court of Canada, wrote at page 748:
Let it be said at the outset that the mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond review. If that body has failed to observe a condition precedent to the exercise of that power, the court can declare that such purported exercise is a nullity.
At page 752, Mr. Justice Estey continued:
It is not helpful in my view to attempt to classify the action or function by the Governor in Council (or indeed the Lieutenant-Governor in Council acting in similar circumstances) into one of the traditional categories established in the development of administrative law. . . . in my view the essence of the principle of law here operating is simply that in the exercise of a statutory power the Governor in Council, like any other person or group of persons, must keep within the law as laid down by Parliament or the Legislature. Failure to do so will call into action the supervising function of the superior court whose responsibility is to enforce the law, that is to ensure that such actions as may be authorized by statute shall be carried out in accordance with its terms, or that a public authority shall not fail to respond to a duty assigned to it by statute.
In Angus v. Canada,5 Mr. Justice MacGuigan wrote at page 420 with reference to the Inuit Tapirisat decision just quoted from:
. . . "the discretion of the Governor in Council is complete provided he observes the jurisdictional boundaries" of the provision. It is also common ground that this legislative power of the Governor in Council is subject to judicial review if he has failed to observe any condition precedent to the exercise of the power.
None of the foregoing regarding the principles against which this Court should review the action of the Governor in Council here at issue was seriously disputed before me. Accordingly, the questions that the Court on this application should address are whether or not the Governor in Council, in enacting the Amending Regulations, failed to observe a condition precedent to the exercise of its power or exceeded its jurisdiction.
Finally on the issue of the standard of review, I am guided by the words of Chief Justice Dickson in Thorne's Hardware Ltd. et al. v. The Queen et al.,6 where he wrote at page 112:
It is neither our duty nor our right to investigate the motives which impelled the federal Cabinet to pass the Order in Council . . . .
Thus, I conclude, on the evidence before this Court, it is neither a duty nor a right of the Court to investigate or to question the motives which impelled the Governor in Council to adopt the Amending Regulations. Further, whether this Court or any presiding judge would favour the same, different or any amending regulations is an irrelevant consideration.
(5) BACKGROUND
| (a) The Migratory Birds Convention |
The Migratory Birds Convention, entered into in 1916 and ratified by "His Britannic Majesty", presumably on behalf of Canada, and by the President of the United States of America, is a schedule to the Migratory Birds Convention Act, 1994 (the Act).7 The preamble to the Migratory Birds Convention (the Convention) reads as follows:
Whereas many species of birds in the course of their annual migrations traverse certain parts of the Dominion of Canada and the United States; and
Whereas many of these species are of great value as a source of food or in destroying insects which are injurious to forests and forage plants on the public domain, as well as to agricultural crops, in both Canada and the United States, but are nevertheless in danger of extermination through lack of adequate protection during the nesting season or while on their way to and from their breeding grounds;
His Majesty the King of the United Kingdom of Great Britain and Ireland and the British dominions beyond the seas, Emperor of India, and the United States of America, being desirous of saving from indiscriminate slaughter and of insuring the preservation of such migratory birds as are either useful to man or are harmless, have resolved to adopt some uniform system of protection which shall effectively accomplish such objects . . . .
Thus, the Convention can be said to be directed to the saving from indiscriminate slaughter and to ensuring the preservation of certain migratory birds that "traverse" parts of Canada and the United States in their annual migration.
Article I of the Convention provides that the migratory birds included in the terms of the Convention include geese.
Article II of the Convention reads in part as follows:
Article II
The High Contracting Parties agree that, as an effective means of preserving migratory birds, there shall be established the following close seasons during which no hunting shall be done except for scientific or propagating purposes under permits issued by proper authorities.
1. The close season on migratory game birds shall be between 10th March and 1st September . . . . The season for hunting shall be further restricted to such period not exceeding three and one-half months as the High Contracting Powers may severally deem appropriate and define by law or regulation.
Once again, it was not in dispute before me that the snow geese and Ross geese to which the Amending Regulations apply fall within the purview of this article. Thus, prior to the coming into force of the Amending Regulations, but since the adoption of the Convention, a "close" season has existed with respect to snow geese and Ross geese between the 10th of March and the 1st of September each year. An exception to the close season has nonetheless been provided for "scientific or propagating purposes". Further, the hunting season for snow geese and Ross geese has been further restricted to a period not exceeding three and one-half months in the balance of the year, that is to say, between the 1st of September in any year and the 10th of March in the next following year.
Article VII of the Convention is also worthy of note. It provides as follows:
Article VII
Permits to kill any of the above-named birds which, under extraordinary conditions, may become seriously injurious to the agricultural or other interests in any particular community, may be issued by the proper authorities of the High Contracting Powers under suitable regulations prescribed therefor by them respectively, but such permits shall lapse or may be cancelled, at any time when, in the opinion of said authorities, the particular exigency has passed, and no birds killed under this article shall be shipped, sold or offered for sale.
Thus, "permits to kill" snow geese and Ross geese outside the normal "season for hunting" may be issued, "under suitable regulations" where, "under extraordinary conditions" they "may become seriously injurious to the agricultural or other interests in any particular community". Taking note of the period of the year when snow geese and Ross geese, in the course of their normal annual migration are south of the Canada/U.S. border, it would appear evident, to the Court at least, that Article VII contemplates "permits to kill" during the "close season".
On December 14, 1995, a "Protocol" between the Government of Canada and the Government of the United States of America amending the Convention was signed on behalf of Canada and the United States in Washington. That protocol is not yet in force. On the cross-examination of Dr. John Steven Wendt on his affidavit filed on behalf of the respondents,8 the following exchange took place:
| Q. [By Mr. Estrin, counsel for the applicant] Well, let me suggest to you that you, yourself, expressed the view that there is language in that Protocol that allows harvest of migratory birds outside the specified framework dates of the Convention in cases where migratory bird habitats are being damaged? |
| A. (By Dr. Wendt) Yes, I have expressed that view.9 |
Counsel for the applicants invited me to conclude, on the basis of the Protocol, that senior officials at Environment Canada were of the view that the Governor in Council currently lacks jurisdiction to enact the Amending Regulations, that the Protocol was negotiated and signed to provide such jurisdiction and that, since the Protocol is not now in force, the Governor in Council had "jumped the gun" and acted outside its authority. An alternative interpretation might, of course, be that the Protocol was negotiated and signed to clarify and put beyond doubt authority in the Governor in Council, to ensure international agreement and to act as a catalyst for discussion and consultation on what the Government perceived to be a rapidly developing crisis. Given the standard of review in a matter such as this, earlier referred to, and in the light of the totality of the evidence before the Court, if it were necessary that I choose between the alternative interpretations, I would adopt the latter.
| (b) The Migratory Birds Convention Act, 1994 |
Legislation to give effect to the Convention was first enacted by Parliament in 1917, the year following signing of the Convention.10 That legislation was repealed by the Migratory Birds Convention Act, 1994.
The purpose of the Act is succinctly stated in section 4:
4. The purpose of this Act is to implement the Convention by protecting migratory birds and nests. [Emphasis added.]
Subsection 12(1) of the Act provides authority for the Governor in Council to make regulations. It is critical for the purposes of this matter. The relevant portions of subsection 12(1) read as follows:
12. (1) The Governor in Council may make any regulations that the Governor in Council considers necessary to carry out the purposes and provisions of this Act and the Convention, including regulations
| (a) providing for the periods during which, and the areas in which, |
| (i) migratory birds may be killed, captured or taken, |
. . .
| (e) for granting permits to remove or eliminate migratory birds or nests where it is necessary to do so to avoid injury to agricultural interests or in any other circumstances set out in the regulations; |
| (c) The process leading to the enactment of the Amending Regulations |
Concern with respect to the increasingly large population of snow geese and Ross geese was expressed as early as January 1995. Conference attendees at the North American Arctic Goose Conference held in that month were of the view that the Governments of Canada and of the United States should investigate the ecological consequences without delay. In October 1995 an international workshop, sponsored by an organization known as the Arctic Goose Joint Venture, was held. Dr. Wendt of Environment Canada, who co-chaired the workshop with his United States counterpart, attests that information about the workshop was widely distributed and that, in addition to invited speakers from the scientific community, the participants in the workshop included representatives of a number of Aboriginal groups. Dr. Wendt further attests that the participants in the workshop concluded that the threat to habitats posed by large arctic goose populations was real, and that a group of experts should be selected to investigate the situation and "model consequences in detail". In response, a group was formed, drawn from federal and provincial/state governments, universities and non-governmental organizations in Canada and the United States. The group became known as the Arctic Goose Habitat Working Group (the Working Group).
The Working Group developed a continental management approach to the issue of the increasingly large population of geese. Two reports were developed and, according to the evidence before me, those reports provided the basis for the initiative culminating in the Amending Regulations. The first report was published in 1997 and is entitled Arctic Ecosystems in Peril. The second report was published in 1998 and is entitled The Greater Snow Goose. The reports reflect findings regarding causes underlying the rapid population growth, a growth determined to be exponential in nature.
As indicated in the Regulatory Impact Analysis Statement in Schedule B, the mid-continent or "lesser" snow goose and the greater snow goose, the former migrating north through the Prairies and the latter migrating north through Quebec, were designated as "overabundant populations" in March 1998 by the Canada/Mexico/United States Trilateral Committee for Wildlife and Ecosystem Conservation and Management. Response to this designation was left to each country's government.
| (d) Consultations |
Evidence filed on behalf of the respondents indicates that the Canadian Wildlife Service of Environment Canada utilized its formalized process of yearly consultations on changes to the Migratory Birds Regulations to facilitate consultation with interested parties on the rapid population growth of snow geese. The first discussion of the subject was reflected in a November 1995 report on the status of migratory game birds in Canada which was followed by subsequent discussions in equivalent reports in November of 1996, 1997, and 1998. Those reports were apparently mailed to approximately 700 organizations and individuals with an interest in migratory game bird conservation in Canada, the United States and other countries.
Specific alternatives to deal with the perceived crisis were described in publications issued in December 1997 and July 1998.11
Dr. Wendt attest that, in Quebec, where the Amending Regulations are apparently anticipated to have their greatest impact, consultations were conducted through a "Stakeholder's Committee" that "met a number of times". Throughout the winter of 1998, input to the proposed Amending Regulations was solicited in the Prairie provinces. The subject was also raised and discussed at a number of Wildlife Management Advisory Council meetings held between June 1997 and March 1999 and at meetings of the Nunavut Wildlife Management Board held between February 1997 and August 1998.
Dr. Wendt further attests to the view that the Amending Regulations are expected to have a "negligeable effect" on the ability of First Nations peoples to harvest snow geese, and that special consultations were carried out with First Nations groups for the purpose of raising awareness of the ecological issues involved and to encourage First Nations peoples' involvement in addressing the problem.
Evidence on behalf of the respondents indicates that a discussion took place with the Dene Co-Management Board in April 1997, with the Gwich'in Renewable Resources Board in October 1998 and with the Sahtu Renewable Resources Board on three occasions in 1998. Northern consultations culminated with a joint meeting with representatives from various co-management boards in Yellowknife, in December 1998.
(6) ANALYSIS
As indicated earlier in these reasons, the application for judicial review here under consideration was dated March 4, 1999. The Amending Regulations were enacted on March 25, 1999. The spring hunt in Quebec that was authorized by those Regulations was scheduled to commence on April 15, 1999. Thus, a good deal of urgency attached to the disposition of this application. With the consent of counsel, the Court set the matter down for hearing commencing at 9:00 a.m. on April 14, 1999. Counsel are to be congratulated for the work they did to ensure that the very extensive material relied on was prepared, exchanged and filed with the Court in advance of the hearing date.
The hearing terminated at or about 6:00 p.m. on April 14, 1999. My decision was delivered from the bench at 10:00 a.m. the next day, that is, on April 15, 1999, shortly after the spring hunt in Quebec was authorized to commence. My decision was in the following terms:
IT IS HEREBY ORDERED, ADJUDGED AND DECLARED THAT:
| 1. The Regulations Amending the Migratory Birds Regulations, P.C. 1999-526 of the 25th of March, 1999 are ultra vires insofar as they purport to authorize the killing of Ross Geese and other species that are not easily distinguishable from Snow Geese, during the periods and in the Areas or Districts specified in Table 1.2 set out in those Regulations. |
| 2. In all other respects, the Applicants' application for judicial review is dismissed. |
| 3. No Order as to costs. |
I gave brief oral reasons for my decision. The following analysis will follow the substance and structure of those brief oral reasons with substantial elaboration.
Earlier in these reasons, I set out nine propositions or issues against which counsel for the applicants made their submissions. I will address the first four of those propositions together. They are repeated here for ease of reference:
| 1. The challenged regulation conflicts with the 1916 Migratory Birds Convention and is therefore ultra vires the implementing legislation. The 1916 Convention has as its raison d'être the protection of migratory birds from hunting and other human initiated actions which kill or threaten such birds. The Migratory Birds Convention Act's stated purpose is to "implement the Convention". However, a central aspect of the challenged regulation is to authorize a new spring hunting season in order to drastically reduce the population of certain geese species. |
| 2. The challenged regulation also contravenes the purpose of the Convention because the purpose of the Convention (and therefore the ambit of a regulation under the Act) is restricted to protect migratory birds during the nesting season or while on their way to and from the breeding grounds, whereas one desired Environment Canada result of the challenged regulation is to "increase hunting opportunities and harvest pressure on these species" by allowing these geese to be shot while on their way to the breeding grounds. |
| 3. Environment Canada is attempting through this regulation to regulate the environment. This is a matter in respect of which the Migratory Birds Convention provides no authority. |
| 4. The regulation is not authorized by either Article II or VII of the Convention. |
In Re Doctors Hospital and Minister of Health et al.,12 Mr. Justice Cory as he then was, for the Court, wrote at pages 174-175:
It has been held that even if made in good faith and with the best of intentions, a departure by a decision-making body from the objects and purposes of the statute pursuant to which it acts is objectionable and subject to review by the Courts.
In Roncarelli v. Duplessis, [1959] S.C.R. 121 at p. 140, . . . Mr. Justice Rand said:
| In public regulation of this sort there is no such thing as absolute and untrammelled "discretion", that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. "Discretion" necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. |
In the absence of clear words in the statute, the discretion granted to the Lieutenant-Governor in Council [here the Governor in Council] could only be used to pursue the policy and objects of the act, which are to be determined according to the standard canons of construction and to that extent, at least, is reviewable by the Courts. [Citation omitted.]
In Driedger on the Construction of Statutes,13 dealing with legislation implementing international conventions, the following appears:
. . . In preparing implementing legislation, the legislature first interprets the international convention and then decides how much of it should be implemented and how implementation should occur. Since the legislature is not bound by the convention, it can change or add to it at will. The structure and wording of the underlying convention may be more or less followed or ignored. Regardless of the approach taken, and regardless of how closely the underlying convention is mirrored, the implementing legislation is interpreted in the usual way, like any other domestic legislation. This point was made by the Supreme Court of Canada in Schavernoch v. Foreign Claims Commission in connection with regulations made to carry out a bipartite agreement with Czechoslovakia. Estey J. wrote:
| . . . [T]he regulations fall to be interpreted according to the maxims of interpretation applicable to Canadian domestic law generally. The only rule of interpretation which seems to have any bearing in these proceedings is the plain meaning rule . . . . |
In other cases, the Supreme Court of Canada has emphasized the importance of purposive analysis in its interpretation of implementing legislation. But the basic idea is the same, namely, implementation legislation is to be construed like any legislation, relying on the usual principles and techniques.
It is now established that courts may look at the international convention underlying implementing legislation to assist interpretation, even in the absence of ambiguity on the face of the legislation. In addition, there is a presumption that implementation legislation is meant to comply with and give effect to the obligations assumed under the convention. This presumption is rebuttable, however, and it is only one of many aids on which the courts appropriately rely to determine the intended or most appropriate meaning of the legislation. In the event of a conflict between this meaning and the underlying convention, the legislation prevails.14
Dealing with the interpretation of conventions themselves, Driedger continues at pages 398-399:
The primary rule of interpretation in international law is that conventions must be interpreted so as to give effect to their purpose. In the Palacios [(1984), 7 D.L.R. (4th) 112 (Ont. C.A.)] case Blair J.A. relied on an international law text for an authoritative formulation of this rule. He wrote:
| The basic rule of international law governing the interpretation of treaties is stated by O'Connell, International Law, . . . as follows: "The primary end of treaty interpretation is to give effect to the intentions of the parties, and not frustrate them." This is sometimes called the effectiveness principle which requires courts to read a treaty as a whole to ascertain its purpose and intent and to give effect thereto rather than to rely on literal interpretation of some articles which might produce results "contrary to the manifest aim of the treaty". |
The similarity between this principle and the approach to interpreting domestic legislation taken by most modern courts is evident. However, in so far as a discrepancy may arise between the domestic and the international law approaches, when interpreting international conventions the international law approach governs.
Against these "standard cannons of construction" I return to the terms of the Act and the Convention which is a Schedule to the Act.
I have tried to put myself into the minds of those who drafted the Convention. My conclusions are: first, that the concerns giving rise to the drafting of the Convention and the objectives of the Convention are clearly and unequivocally reflected in its preamble; and second, Article II speaks to the objectives, the preservation of migratory birds through the establishment of a "close season", and provides for two exceptions to the general rule, scientific or propagating purposes.
With what I conceive to be a great deal of foresight, I conclude the drafters of the Convention recognized that conditions that prevailed in 1916 and throughout the time when the Convention was being negotiated and drafted might not continue to prevail forever; that indeed, the evolution that had been experienced through time and its impact on migratory bird populations was likely to continue. Thus, while the drafters had identified scientific and propagating purposes as exceptions to the general rule reflected in Article II, exceptions not surprisingly identified in the environment of the day, they recognized, I conclude, that an "escape clause" to allow for the unforeseen such as the current phenomena of isostatic uplift, global warming and exponential growth of snow geese populations, was an appropriate adjunct to the Convention. It is such foresight that I conclude led to the inclusion of Article VII directed to just such conditions as, on the evidence before me, are now found to exist and that could not reasonably have been contemplated at the time the Convention was drafted.
Section 4 of the Act leaves beyond doubt the conclusion that the Act was enacted for the purpose of implementing the Convention "by protecting migratory birds and nests". I interpret subsection 12(1) as reflecting, at least in part, the foresight of the drafters of the Convention when they included Article VII in the Convention. For ease of reference, I quote here again what I consider to be the relevant portions of subsection 12(1):
12. (1) The Governor in Council may make any regulations that the Governor in Council considers necessary to carry out the purposes and provisions of this Act and the Convention, including regulations
| (a) providing for the periods during which, and the areas in which, |
| (i) migratory birds may be killed, captured or taken, |
. . .
| (e) for granting permits to remove or eliminate migratory birds or nests where it is necessary to do so to avoid injury to agricultural interests or in any other circumstances set out in the regulations; |
The following is my interpretation of the foregoing elements of subsection 12(1) as they relate to the facts of this matter: the Governor in Council may make any regulations that it considers necessary to carry out, not simply the purposes, but the provisions of the Act and the Convention, including Article VII, providing for the periods during which, and the areas in which, migratory birds may be killed, and for the granting of permits to eliminate migratory birds where, in the opinion of the Governor in Council, it is necessary to do so to avoid injury to agricultural interests or in any other circumstances set out in the regulations.
This authority tracks, reasonably closely, though certainly not in identical terms, Article VII of the Convention which provides for permits to kill geese which, under "extraordinary conditions", may become "seriously injurious" to the "agricultural or other interests" in "any particular community".
Returning first to the words of the Act, except as the Amending Regulations purport to cover Ross geese and "other species" that are not easily distinguishable from snow geese, the Amending Regulations, when read together with the related Regulatory Impact Analysis Statement, are obviously considered necessary by the Governor in Council to carry out a provision of the Convention, that is to say, Article VII. The Amending Regulations, in the terms of paragraph 12(1)(e ) provide for the granting of permits to eliminate snow geese, that is to say migratory birds, to avoid injury in circumstances set out in the Regulations.
Against the terms of Article VII of the Convention, and once again without reference to the provisions thereof respecting Ross geese and "other species that are not easily distinguishable from snow geese", I reach the following conclusions. The Amending Regulations provide for permits to kill snow geese. The Governor in Council has obviously adopted the advice of the Trilateral Committee that snow goose populations are overabundant. In the first paragraph of the Regulatory Impact Analysis Statement, the following sentence appears:
Left unchecked, overabundant snow goose populations . . . will compromise the biological diversity of the arctic ecosystem.
I am satisfied that the Governor in Council could reasonably conclude in its discretion that such circumstances, overabundance, amount to "extraordinary conditions" and that those conditions "may become seriously injurious to the arctic ecosystem". Of greater concern is whether that condition could be said to be an interest or interests "in any particular community". I am satisfied that, in the context of Article VII of the Convention, the term "particular community" should be broadly interpreted to include the portion of the arctic in which snow geese spend the summer months and that the biological diversity of the arctic ecosystem is another interest within the same genus as "agricultural interest".
I find nothing on the face of subsection 12(1) of the Act and Article VII of the Convention to support those provisions of the Amending Regulations relating to Ross geese and "other species that are not easily distinguishable from snow geese".
The fifth issue heading is in the following terms:
Unlawful Sub-Delegation and Fettering of Discretion.
In the draft of the Amending Regulations published, together with a Regulatory Impact Analysis Statement in the issue of the Canada Gazette, Part I on January 30, 1999, section 4 of the draft Amending Regulations was in the following terms:
4. The Regulations are amended by adding the following after section 23:
overabundant species
23.1 (1) In this section and Schedule I, "overabundant species" means a species of migratory game bird
| (a) that as a result of the abundance or rate of increase of the population of that species, is threatened in its sustainability, that threatens the sustainability of any other species of migratory game bird, that threatens its habitat or that threatens the habitat of any other species of migratory birds; and |
| (b) that the Canada/Mexico/United States Trilateral Committee for Wildlife and Ecosystem Conservation and Management has identified as having an overabundant population. |
The Trilateral Committee identified both lesser snow geese and greater snow geese as having overabundant populations. A substantial majority of the members of the Trilateral Committee represented Mexico and the United States, but not Canada. Counsel for the applicants urged that the Governor in Council simply adopted this identification and in so doing unlawfully delegated a portion of its mandate in enacting the Amending Regulations. It is worthy of note that the reference to identification of overabundance by the Trilateral Committee does not appear on the face of the Amending Regulations as adopted by the Governor in Council.
It was not substantially disputed before me that where a delegate, here the Governor in Council, fetters his, her or its discretion by adopting a policy or agreeing to exercise it in a particular way, an unlawful subdelegation is the result. This principle can be found enunciated in Vic Restaurant v. The City of Montreal.15
While the indication of such a subdelegation reflected in the draft Amending Regulations might reasonably give rise to speculation that the Governor in Council did delegate to the Trilateral Committee the identification of overabundance, there is no other evidence to support such speculation let alone such a conclusion. I am satisfied that the onus was on the applicants to establish the subdelegation and that this onus has not been met.
Even if the onus of establishing a subdelegation were determined to be met, I am not satisfied that a finding of subdelegation to the Trilateral Committee, in the circumstances of this matter, would be fatal to the Amending Regulations. It should not be forgotten that what is here at issue is a perceived crisis that transcends national boundaries. The existence of the Convention is sufficient evidence of that. Snow geese do not respect national boundaries. Their preservation and, indeed, control of their overabundant populations, if such be the case, is a matter of direct concern to at least Canada and the United States and, apparently as well to Mexico. Thus, it is nothing more than common sense to ensure that there is consensus among the affected nations on the question of whether or not "extraordinary conditions", here, overabundant populations, exist. Such a consensus was reached through the Trilateral Committee. There was certainly no evidence before the Court that the Governor in Council was in any sense obligated to accept the determination or advice of the Trilateral Committee. Equally, it would have made little if any sense for the Governor in Council to have acted unilaterally in the absence of a consensus.
In the result, I find no subdelegation impairing the validity of the Amending Regulations.
The sixth issue heading is in the following terms:
The failure to follow Environment Canada's Policy for regulating wildlife and the Treasury Board of Canada's Federal Regulatory Policy violates the law and the doctrine of legitimate expectation.
In Pulp, Paper and Woodworkers of Canada, Local 8 et al. v. Canada (Minister of Agriculture) et al.,16 Madam Justice Desjardins, for the Federal Court of Appeal, wrote at page 49:
As I have stated earlier, the Minister, because he must register, "subject to section 18", is not free as to the making of an opinion. He must direct his mind to the information which is provided to him and do so in the light of the criteria set out in s. 18 of the Regulations . The Minister announced a consultative process by which he would come to that decision. The final decision is, however, by statute, his and his only to take, but he announced he would seek enlightenment from specialized government departments. No law prevented him from declaring the process he might choose to follow in order to arrive at his decision. When that process was announced, it could only have the effect of creating reasonable expectations in the public alerted to the use of pesticides, and particularly those more exposed to possible effects of the control product, that certain procedures would be followed so as to ensure public health and safety.
In cases of an omission on the part of the Minister, this Court is entitled, as expressed by the Supreme Court of Canada in the Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) case, to supply the omission where a party has been led to believe that his or her right to a safe environment would be affected if the proper consultation has not been followed.
The foregoing is an enunciation of the doctrine of legitimate expectations earlier described by Madam Justice Desjardins.
It is urged on behalf of the applicants that the Amending Regulations violate the Minister's policy for regulating wildlife as reflected in Objectives and Guidelines for Establishment of National Regulations for Migratory Game Bird Hunting, revised September 1997, which appears as Appendix A to "Migratory Game Birds in Canada Proposals for 1999/2000 Hunting Regulations", December 31, 199817 (the Ministerial Guidelines). The "guiding principles" published in the Ministerial Guidelines provide that:
" first, maintenance of viable natural wildlife stocks takes precedents over their use;
" second, Canadians are temporary custodians of their wildlife heritage;
" third, Canadians are free to enjoy and use wildlife in Canada subject to laws to secure sustainable enjoyment of that use;
" fourth, the cost of management essential to preserving viable populations of wildlife should be borne by all Canadians;
" fifth, wildlife has intrinsic social and economic values but sometimes causes problems that require management; and
" finally, conservation of wildlife relies upon a well-informed public.
Objectives are provided with respect to migratory game birds hunting regulations. They are the following:
" first, to provide an opportunity for Canadians to hunt;
" second, to limit the take of migratory game birds to levels compatible with their ability to sustain population levels consistent with the available habitat throughout their range;
" third, to protect the genetic diversity within migratory game bird populations;
" fourth, to provide hunting opportunities in various parts of Canada within certain limitations;
" fifth, to limit accidental kill of protected species; and
" finally, to assist at times and in specific locations, in the prevention of damage of natural habitat and depredations of agricultural crops.
While evidence was before the Court urging that the foregoing policy was violated in many respects, I find such evidence to be more in the nature of argument than in the nature of expert evidence.
I find no breach of the Ministerial Guidelines through the enactment of the Amending Regulations and the process leading up to their enactment.
Counsel for the applicants further urges that the Amending Regulations and the process by which they were developed and enacted fail to comply with the Treasury Board of Canada's "Federal Regulatory Policy" and in particular the "Regulatory Process Management's Standard" referenced in the Federal Regulatory Policy. Certain standards are emphasized:
" first, regulatory authorities, here the Minister of the Environment, proposing regulatory changes must have evidence that a problem has arisen, that Government intervention is required and that the regulatory changes are necessary. Where environmental risks are involved, and it is urged that such is the case here, persons such as the Minister must consider whether the relative and absolute risks posed are such that intervention is required at the time proposed;
" second, the problem must be described and documented in clear, concise terms, the problem must be analysed, and interested parties must be consulted on alternative ways to solve the problem;
" third, it must be demonstrated that the regulatory amendment will help solve the problem. Alternative regulatory solutions must be analysed to ensure the most effective and efficient is chosen;
" fourth, it must be demonstrated that the benefits of the regulatory amendments are greater than their costs and, where they address environmental risks, it must also be demonstrated that regulatory effort is being expanded where it will do the most good, and a cost/benefit analysis must be carried out to assess potential effects, such as impacts on the environmental and other sectors of society;
" fifth, the regulatory program designed must include program objectives, program delivery specifications and delivery control procedures; and
" finally, the related Regulatory Impact Analysis Statement must explain the procedures and resources that will be used for compliance and enforcement.
While, once again, there is evidence to the effect that the foregoing requirements have not been met, I am not satisfied on the totality of the evidence before the Court that the applicants' case for a breach of the doctrine of legitimate expectations has been made out. Madam Justice Desjardins' words quoted earlier relate to an "omission" on the part of a minister. I find no omission here but rather a profound difference of opinion on the quality or degree of compliance on the part of the Minister. The doctrine of legitimate expectations does not extend to a power in this Court to ensure that the personal expectations as to process of the most disaffected stakeholders will be fulfilled. It is sufficient that there be no "omission" on the part of the Minister. I find there was none.
The applicants' seventh issue statement is in the following terms:
The Regulation is based on erroneous findings of fact made in a perverse or capricious manner or without proper regard to relevant material.
I turn once again to the Inuit Tapirisat decision.18 There, at page 756, Mr. Justice Estey for the Supreme Court, wrote:
In short, the discretion of the Governor in Council is complete provided he observes the jurisdictional boundaries . . . .
Mr. Justice Estey continued at page 757:
. . . I am assisted by the reasoning of Megarry J. in Bates v. Lord Hailsham (cited by the majority judgment of this Court in Nicholson . . . . In refusing to intervene, Megarry J. stated at p. 1378:
| Let me accept that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness. Nevertheless, these considerations do not seem to me to affect the process of legislation, whether primary or delegated. Many of those affected by delegated legislation, and affected very substantially, are never consulted in the process of enacting that legislation; and yet they have no remedy. . . I do not know of any implied right to be consulted or make objections, or any principle upon which the courts may enjoin the legislative process at the suit of those who contend that insufficient time for consultation and consideration has been given.19 |
Once again, except as previously noted in relation to Ross geese and "other species that are not easily distinguishable from snow geese", I find no reviewable error in the nature of an erroneous finding of fact made in a perverse or capricious manner or without proper regard to relevant material.
The eight issue statement is in the following terms:
Assuming there is a legally valid basis for the challenged regulation, there is nevertheless no legal basis whatsoever for this regulation to include Ross' geese as a species that can be hunted outside the close season.
As previously indicated, I am in complete agreement with the applicants on this issue.
Finally, the last issue statement is in the following terms:
| (i) The actions of the Minister and the Governor in Council in formulating and making these regulations have violated and constitute a continuing fundamental deprivation of the constitutionally protected rights of Aboriginal peoples to be meaningfully consulted and involved in respect of governmental actions, programmes and permitting activities related to wildlife resources in respect of which Aboriginal peoples have traditional, Treaty, and constitutionally protected interests. |
| (ii) The Minister and the Governor in Council have ignored and breached their fiduciary duty to Aboriginal peoples, which duty requires, inter alia, that the Minister and the Governor in Council obtain and objectively consider information as to the likely impacts that the regulations will have on Aboriginal persons, communities and the wildlife upon which they depend or have interests, prior to formulating and advocating such proposals, and avoid such actions where negative impacts are likely. |
The Dene Nation was one of the applicants before the Court and clearly had status to raise these issues. Regretfully, the Dene Nation filed no evidence whatsoever, despite the fact that the application for judicial review indicated that such evidence would be forthcoming. I give no weight whatsoever to exhibits to an affidavit filed on behalf of another of the applicants that purport to be copies of letters from the Dene Nation to the Minister of the Environment and others indicating their concerns with respect to the proposals for the Amending Regulations and requesting consultations or more extensive consultations.
There can be no doubt that the Amending Regulations impact on traditional and constitutionally protected interests of First Nations peoples and, perhaps, also on Treaty interests. The evidence before me demonstrates consultations as referred to earlier, albeit that those consultations may have been uneven in different regions of the country and with different affected peoples, including First Nations peoples.
It was not in issue before me that snow geese are relied on as a food source, and perhaps for other purposes, by First Nations peoples. While it is clear that the objective of the spring hunt is to significantly or, perhaps substantially, reduce "overabundant populations", it is hard to conceive that the result is likely, at least in the short term, to negatively impact traditional, Treaty, and constitutionally protected interests of First Nations peoples. At the same time, the evidence before me does not clearly establish that these interests were directly addressed.
In recent years, a number of judgments have dealt with the obligations of the Crown to First Nations peoples in traditional and Treaty situations. I will refer briefly to a few of them.
In R. v. Sparrow,20 where fishery conservation measures in the Province of British Columbia were at issue, the Chief Justice and La Forest J., delivering judgment for the Court, wrote at page 1119:
We acknowledge the fact that the justificatory standard to be met may place a heavy burden on the Crown. However, government policy with respect to the British Columbia fishery, regardless of s. 35(1), already dictates that, in allocating the right to take fish, Indian food fishing is to be given priority over the interests of other user groups. The constitutional entitlement embodied in s. 35(1) requires the Crown to ensure that its regulations are in keeping with that allocation of priority. The objective of this requirement is not to undermine Parliament's ability and responsibility with respect to creating and administering overall conservation and management plans regarding the salmon fishery. The objective is rather to guarantee that those plans treat aboriginal peoples in a way ensuring that their rights are taken seriously.
Within the analysis of justification, there are further questions to be addressed, depending on the circumstances of the inquiry. These include the questions of whether there has been as little infringement as possible in order to effect the desired result; whether, in a situation of expropriation, fair compensation is available; and, whether the aboriginal group in question has been consulted with respect to the conservation measures being implemented. The aboriginal peoples, with their history of conservation-consciousness and inter-dependence with natural resources, would surely be expected, at the least, to be informed regarding the determination of an appropriate scheme for the regulation of the fisheries.21
The substance of the last quoted sentence surely applies equally with respect to the determination of an appropriate scheme, or modification of the scheme, for preservation, including, where necessary, regulation, of migratory bird populations.
In R. v. Badger,22 Mr. Justice Cory wrote at page 812:
There is no doubt that aboriginal and treaty rights differ in both origin and structure. Aboriginal rights flow from the customs and traditions of the native peoples. To paraphrase the words of Judson J. in Calder . . . they embody the right of native people to continue living as their forefathers lived. [Citation omitted.]
At page 813, he continued:
In addition, both aboriginal and treaty rights possess in common a unique, sui generis nature . . . . In each case, the honour of the Crown is engaged through its relationship with the native people. [Citations omitted.]
He continued later on the same page:
The wording of s. 35(1) of the Constitution Act, 1982 supports a common approach to infringements of aboriginal and treaty rights.
Finally, at page 814, Mr. Justice Cory concluded on this subject:
In summary, it is clear that a statute or regulation which constitutes a prima facie infringement of aboriginal rights must be justified.
On the evidence before me, I simply cannot determine that the Amending Regulations constitute a prima facie infringement of Aboriginal rights.
In Halfway River First Nation v. British Columbia (Minister of Forests),23 a case involving conservation measures in the province of British Columbia, Mr. Justice Dorgan wrote at page 312:
The MOF [Ministry of Forests] submits that the duty to consult does not arise until the aboriginal group has established a prima facie infringement, citing Sparrow, where consultation is not considered until the second stage of the infringement test. In my view, this approach is inconsistent with the cases referred to and is inappropriate given the relationship between the Crown and native people.
Based on the Jack, Noel and Delgamuukw cases, the Crown has an obligation to undertake reasonable consultation with a First Nation which may be affected by its decision. In order for the Crown to consult reasonably, it must fully inform itself of the practices and of the views of the Nation affected. In so doing, it must ensure that the group affected is provided with full information with respect to the proposed legislation or decision and its potential impact on aboriginal rights.
There is some, though limited, evidence before me that the respondents fulfilled their obligation against this statement of the test. While it is unfortunate that the evidence provided by the respondents in this regard was not more fulsome, in the absence of any evidence whatsoever on behalf of the Dene Nation, or indeed on behalf of any other First Nation, I am satisfied that there is simply no basis on which I could find against the respondents by reasons of a failure on their part to fulfil their duties to the First Nation in developing and enacting the Amending Regulations.24
(8) CONCLUSION AND DISPOSITION
As indicated earlier in these reasons, I disposed of this matter from the bench on April 15, 1999. Also as indicated earlier, my disposition was in the following terms:
IT IS HEREBY ORDERED, ADJUDGED AND DECLARED THAT:
| 1. The Regulations Amending the Migratory Birds Regulations, P.C. 1999-526 of the 25th of March, 1999 are ultra vires insofar as they purport to authorize the killing of Ross Geese and other species that are not easily distinguishable from Snow Geese, during the periods and in the Areas or Districts specified in Table 1.2 set out in those Regulations. |
| 2. In all other respects, the Applicants' application for judicial review is dismissed. |
In addition, as neither counsel for the applicants nor counsel for the respondents sought costs, I made no order as to costs.
1 Registration SOR/99-147, 25 March, 1999.
2 S.C. 1994, c. 22.
3 133 Canada Gazette, Part I, at p. 227 (January 30, 1999).
4 [1980] 2 S.C.R. 735.
5 [1990] 3 F.C. 410 (C.A).
6 [1983] 1 S.C.R. 106.
7 S.C. 1994, c. 22.
8 At the time he swore his affidavit, Dr. Wendt was Chief of the Migratory Birds Conservation Division of the Canadian Wildlife Service at Environment Canada.
9 Applicants' record, vol. V, at p. 45.
10 The Migratory Birds Convention Act, S.C. 1917, c. 18, assented to, August 29, 1917.
11 Affidavit of John Stephen Wendt sworn March 26, 1999, para. 44; respondents record, vol. 1, at p. 138.
12 (1976), 12 O.R. (2d) 164 (Div. Ct.).
13 Ruth Sullivan, 3rd ed. Toronto: Butterworths, 1994, at p. 397.
14 For the propositions reflected in this quotation, in addition to the Schavernoch v. Foreign Claims Commission et al. decision which is reported at [1982] 1 S.C.R. 1092, the following authorities are cited: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at p. 733; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at pp. 1371-1372; Salomon v. Commissioners of Customs & Excise, [1967] 2 Q.B. 116 (C.A.), at pp. 143-144.
15 [1959] S.C.R. 58.
16 (1994), 174 N.R. 37 (F.C.A.).
17 Exhibit 8 to the affidavit of Dr. Vernon G. Thomas sworn March 1, 1999, applicants' record, vol. II.
18 Supra, note 4.
19 Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373 (Ch. D.); and Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311.
20 [1990] 1 S.C.R. 1075.
21 The reference to s. 35(1) is a reference to that subsection of Part II of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]. That subsection reads as follows:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
22 [1996] 1 S.C.R. 771.
23 [1998] 4 W.W.R. 283 (B.C.S.C.).
24 In Makivik Corp. v. Canada (Minister of Canadian Heritage), [1999] 1 F.C. 38 (T.D), a matter relating to negotiation of Aboriginal land claims in the context of a treaty process, Associate Chief Justice Richard, by reference to a number of the cases that I have cited and others, at pp. 79 and 80 set forth a number of "General Principles" that may be drawn from those cases. Additionally, paras. 107-109 on the same pages provide some general statements that may well be applicable in the context of this matter as well.