Digests

Ecology Action Centre Society v. Canada (Attorney General)

T-1179-01

2004 FC 1087, Heneghan J.

6/8/04

31 pp.

Judicial review of Variation Order 2001-074 made by Regional Director General, Maritimes Region, Department of Fisheries and Oceans reinstating close times under Atlantic Fisheries Regulations--Objective of applicant, non-profit organization, to educate public as to environmental conservation--Advances views to government, fishing industry--Especially concerned about fishing methods choices, harmful effects of dragging Georges Bank, shallow submerged area divided between Canada, U.S.A.--Canadian portion is area from southwest coast of Nova Scotia through Gulf of Maine--Ocean floor (benthic substrata) at Georges Bank is sand, gravelly sand said to be nursery for species such as anemones, corals, crabs--These organisms said to be put at risk when fish caught by dragging--Dragging involves wires, doors, net hauled behind fishing vessel--Doors hold net open horizontally--Weights on bottom keep net open vertically-- "Codend" traps fish, whatever else picked up from ocean floor--Applicant says dragging picks up undersized fish, plant forms essential to nourish marine environment--Submitting bibliographies of peer-reviewed scientific papers on subject-- Tribunal Record included Groundfish Integration Fisheries Management Plan--Applicant's argument: Variation Order inconsistent with Fisheries Act provisions for fish habitat protection and therefore ultra vires--Opening Georges Bank to dragger operations resulting in harmful alteration, disruption, destruction (HADD) of fish habitat, contrary to Act, s. 35(1)--Arguing Minister's duties include protection, management of aquatic environment--Saying Act, s. 35 introduced to extend protection to marine environment, citing case law, House of Commons debates when s. 35 introduced --Saying "work or undertaking" in s. 35 meaning any activity, including fishing, dragging, undertaken by human effort-- Reference to R. v. British Columbia Hydro and Power Authority (1997), 25 C.E.L.R. (N.S.) 51 (B.C.S.C.), as authority for proposition courts have adopted holistic interpretation of "fish habitat"--Georges Bank said to be part of habitat that supports fish, including spawning, nursery, rearing, food supply, migration--Suggesting that any one of harmful alteration, disruption, destruction constitute HADD-- Referring to case law holding effects on fish habitat need not be permanent, irreparable to contravene s. 35(1)--Dragging said to eliminate growth areas for juvenile groundfish-- Arguing s. 35(2) requires ministerial authorization for HADD, such not granted herein--Citing Spinney v. Canada (Minister of Fisheries and Oceans) (2001), 183 F.T.R. 71 (F.C.T.D.), for proposition variation orders legislative, not administrative decisions, and correctness applicable review standard-- Referring to "precautionary principle" recognized in 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, in arguing in absence of complete scientific knowledge, environmental measures must anticipate, prevent environmental degradation--Opening Georges Bank to dragging said to be contrary to "precautionary principle" as Regional Director General required to err on side of caution--According to Attorney General, only issue whether Regional Director General acted within jurisdiction; HADD irrelevant to that issue-- Respondent submitting: Governor in Council intended Regional Director General have full discretion to vary close times, subject to notice given under Fishery (General) Regulations, s. 7--Respondent saying s. 35(2) authorization not condition precedent to issuing variation order, but required to conduct action other than fishing that could impact upon fish habitat--In alternative, if s. 35(1) does apply to fishing, no authorization needed other than licence, recognized means of authorizing HADD--Fishing not identified in Schedule VI of Regulations which mentions bridges, culverts, dams, mining--Respondent saying Canadian Environmental Assessment Act (CEAA) irrelevant to issuance of Variation Order at issue--Deciding whether fishing area open or closed not "undertaking" within CEAA--Regional Director General not "seized with any project"--Court's role upon judicial review not to "second guess" Minister, substitute its views-- Impugned decision legislative--Difference between legislative, administrative acts explained in De Smith's Judicial Review of Administrative Action (4th ed. by J.M. Evans, London: Stevens & Sons Ltd., 1980): legislative act promulgates general rule; administrative act includes adoption of policy, making of specific direction, application of general rule to particular case--Variation order is in nature of subordinate legislation and exercise of delegated power must conform to enabling statute's objectives--Fisheries Act confers broad power to regulate, manage fisheries--Fisheries are source of national, provincial wealth to be managed for good of all Canadians--Act gives Minister absolute discretion to issue licences--Parliament has given Governor in Council power to enact regulations (Act, s. 43) including conservation, protection of spawning grounds, authorizing variation of close time--Upon consideration of Regulations, apparent that Regional Director General authorized to make Variation Order --Not exceeding jurisdiction--S. 43 authorized Governor in Council to enact regulations from which Regional Director General derived power--Variation Order 2001-074 merely reinstated close time set by Atlantic Fishing Regulations-- Constitutionality of Act, s. 43, Regulations not challenged-- Underlying applicant's argument fishing within Act, s. 35(1), Regional Director General acted contrary to law, is proposition use of trawl gear will inevitably cause HADD in Area 5Z--No evidence making of Variation Order had any particular effect on benthic environment in 5Z--S. 35 does not impose blanket prohibition against HADD--HADD may occur if authorized by Minister or pursuant to regulations enacted by Governor in Council--Had Parliament intended "work or undertaking" in s. 35 to include fishing, such intention should have been made clear--S. 35 not absolute bar to causing HADD, only unauthorized activities leading to that result--Parliamentary Debates referred to by applicant reveal then-Minister concerned about conservation but do not support argument fishing authorized by Minister or pursuant to Regulations fell within words "work or undertaking" in s. 35--That section inapplicable to Variation Order at issue-- Also inapplicable is CEAA which is aimed at assessing environmental impact of projects--Rouleau J. held in Kwicksutaineuk/Ah-wa-mish Tribes v. Canada (Minister of Fisheries and Oceans) (2003), 227 F.T.R. 96 (F.C.T.D.) affd, (2003), 313 N.R. 394 (F.C.A.), that fishing not "project" for CEAA purposes--Variation orders are legitimate management tools, require exercise of judgment and ought not be overrid-den by Court on judicial review--Application denied but no order as to costs in view of public interest in issues raised by applicant--Fisheries Act, R.S.C., 1985, c. F-14, ss. 35(1), (2), 43(i), (l), (m)--Fishery (General) Regulations, SOR/93-53, s. 7, Schedule VI--Atlantic Fishery Regulations, SOR/86-21-- Canadian Environmental Assessment Act, S.C. 1992, c. 37.