[1996] 3 F.C. 871
T-1474-96
John Cummins and Michael John Norum (Applicants)
v.
The Minister of Fisheries and Oceans, and the Attorney General for Canada (Respondents)
Indexed as: Cummins v. Canada (Minister of Fisheries and Oceans) (T.D.)
Trial Division, Campbell J.—Vancouver, July 19 and 20, 1996.
Federal Court jurisdiction — Trial Division — Application for interim quia timet injunction to restrain Minister from permitting fishing of Fraser River sockeye salmon until 1,600,000 mature sockeye reach spawning grounds — Court lacking jurisdiction to grant relief sought — Not justiciable issue — Court should not “second guess” Minister’s decision made with experts’ advice.
Administrative law — Judicial review — Injunctions — Application for interim quia timet injunction to restrain Minister from permitting fishing of Fraser River sockeye salmon until 1,600,000 mature sockeye reach spawning grounds — Relief intertwined with question of number of fish to reach spawning grounds — Not justiciable issue — Court should not “second guess” Minister’s decision, act as regulatory authority exercising power paramount to Minister — Objections should be raised directly with decision maker who, unlike Court, functions in realms of science, politics, social policy.
Fisheries — Application for interim quia timet injunction to restrain Minister from permitting fishing of Fraser River sockeye salmon, until 1,600,000 mature sockeye reach spawning grounds — Fisheries Act, s. 7 giving Minister absolute discretion to issue fishing licences — Number of fish to reach spawning grounds question for Minister, based on expert advice, to decide — Court not to “second guess” Minister’s decision.
This was an application for an interim quia timet injunction to restrain the Minister from permitting any fishing of Fraser River sockeye salmon in 1996 until at least 1,600,000 mature sockeye reach the spawning grounds, and if any licences impacting on the sockeye salmon stocks are issued, an order restraining the Minister from permitting a maximum harvest which would reduce escapements for spawning to less than 1,600,000, and from authorizing the sale of fish caught under such licence. The respondent objected that there was no justiciable issue. Fisheries Act, section 7, gives the Minister absolute discretion to issue, or authorize the issuance, of leases and licences for fisheries and fishing.
Held, the application should be dismissed.
The Court did not have jurisdiction to grant the relief sought. The applicants were asking the Court to act as a regulatory authority exercising power paramount to that of the Minister. The relief sought was wrapped up in the question of the number of fish which should reach the spawning grounds this year. This question was not justiciable. Such a decision would simply “second guess” the decisions that the Minister has already made on expert advice. Objections of this sort should be raised directly with the decision maker who, unlike the Court, functions in the realms of science, politics, and social policy.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Fisheries Act, R.S.C., 1985, c. F-14, s. 7.
CASES JUDICIALLY CONSIDERED
APPLIED:
Palmer et al. v. Nova Scotia Forest Industries (1983), 60 N.S.R. (2d) 271; 2 D.L.R. (4th) 397; 128 A.P.R. 271; 26 C.C.L.T. 22; 12 C.E.L.R. 157; [1984] 3 C.N.L.R. 107 (S.C.).
DISTINGUISHED:
MacMillan Bloedel Ltd. v. Mullin; Martin v. R. in Right of B.C., [1985] 3 W.W.R. 577; (1985), 61 B.C.L.R. 145; [1985] 2 C.N.L.R. 58 (C.A.).
REFERRED TO:
Pure Spring Co. Ltd. v. Minister of National Revenue, [1946] Ex. C.R. 471; [1947] 1 D.L.R. 501; [1946] C.T.C. 171; Calgary Power Ltd. and Halmrast v. Copithorne, [1959] S.C.R. 24; (1958), 16 D.L.R. (2d) 241; 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.
AUTHORS CITED
Strayer, Barry L. The Canadian Constitution and The Courts, 3rd ed. Toronto: Butterworths, 1988.
APPLICATION for an interim quia timet injunction to restrain the Minister from permitting fishing of Fraser River sockeye salmon in 1996 until 1,600,000 mature sockeye reach the spawning grounds. Application dismissed.
COUNSEL:
Christopher Harvey, Q.C. for applicants.
Harry J. Wruck, Q.C. for respondents.
Brenda Gaertner for intervenor Sto’lo Nation.
M. Hugh G. Braker for intervenor B.C. Aboriginal Peoples’ Fisheries Commission.
SOLICITORS:
Russell & DuMoulin, Vancouver, for applicants.
Deputy Attorney General of Canada for respondents.
Mandell, Pinder, Vancouver, for intervenor Sto’lo Nation.
M. Hugh G. Braker, Port Alberni, British Columbia for intervenor B.C. Aboriginal Peoples’ Fisheries Commission.
The following are the reasons for order rendered in English by
Campbell J.: In their originating notice of motion dated and filed June 19, 1996, the applicants claim the following relief:
1. A quia timet order that the respondent Minister of Fisheries and Oceans be restrained from approving any Aboriginal fishing agreement or issuing any Aboriginal communal fishing licence which permits the sale of Fraser River sockeye salmon.
2. An order in the nature of certiorari quashing that part of a decision of the said Minister which has been made (or which may be made prior to the hearing of this motion) which permits fishing for sale or permits the sale of fish caught in an Aboriginal-only fishery whether by express permission granted or by the grant of an allocation of such a large number of fish to the said Aboriginal-only fishery that the sale of such fish is contemplated by such decision.
It is quite obvious from the originating notice that the applicants object to the present policy adopted by the Minister of Fisheries in observance of the constitutional fishing rights of Aboriginal people on the Fraser River. The applicants prefer that the judicial review application on this issue be heard after the 1996 fishing season is completed to allow more evidence to be compiled in support of their position. Regarding the 1996 fishing season, however, they have applied by notice of motion dated July 5 and filed July 19, for an interim quia timet injunction on the following terms:
1. An order that the Minister be restrained from permitting any Aboriginal, sport or commercial fishing on Fraser River sockeye salmon stocks in 1996 unless and until at least 1,600,000 mature sockeye reach the spawning grounds or until the run size estimates provided by the Pacific Salmon Commission, less expected mortalities and U.S. interceptions, indicate that at least 1,600,000 mature sockeye will reach the spawning grounds; and
2. in the event that the Minister does issue any Aboriginal communal fishing licence impacting Fraser River sockeye stocks, an order that the Minister be restrained from permitting in such licence (or licences in the aggregate) a maximum harvest of such stocks in an amount which would reduce escapement for spawning to less than 1,600,000 or which exceeds a reasonable provision for the actual food, ceremonial and religious needs of Aboriginal people; and
3. in the event that the Minister does issue any Aboriginal communal fishing licence impacting Fraser River sockeye stocks, an order restraining the Minister from authorizing the sale of fish caught under such licence.
The type of injunction being applied for is intended to prevent a feared future harm. To obtain such an injunction, the applicants must show that their cause involves a serious issue, that irreparable harm will result if the injunction is not granted, and that the balance of convenience lies with them.
The irreparable harm advanced by the applicants is that there will be an unacceptable risk to the fishery if the Minister is allowed to proceed as he proposes to do. On this point, suffice it to say that the applicants believe that they know better than the Minister about how many salmon should reach the spawning grounds.
The respondents have made a preliminary objection to the application for an injunction on the basis that the three requests for orders quoted above are not justiciable. The essence of the respondents’ argument in this regard has been framed as follows:
1. The applicants’ concern on this application appears to be the potential for damage to the fishery resource if the Minister allows Aboriginal, sport or commercial fishing on the 1996 stocks of Fraser River salmon. The applicants are, in essence, attacking the Minister’s management of the fishery.
2. Pursuant to section 7 of the Fisheries Act [R.S.C., 1985, c. F-14], the Minister has absolute discretion to issue or authorize to be issued leases and licences for fisheries and fishing. Section 7 states:
7. (1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on.
3. It is submitted that what the applicants are seeking to do is to have this Court “second guess” the Minister’s decisions. The applicants are asking the Court to act as biologist and say that it knows better than the Minister, who has been charged by Parliament with the responsibility of managing the fishery and who has a full complement of marine biologists and various other fishery experts at his disposal, how to manage the fishery.
4. It is submitted that the issues raised by the applicants are not of a justiciable nature and that this Court cannot and should not be put into the position of deciding upon them.
Regarding justiciable issues, the respondents have asked me to place weight on the following quotations by Mr. Barry L. Strayer (now Mr. Justice Strayer of the Appeal Division of this Court) in his book The Canadian Constitution and the Courts (3rd ed.) (at pages 216 and 219-220):
Even where there is a party with standing and the issue is sufficiently well defined and ripe for decision, a court may conclude that the questions raised are not suitable for judicial determination.
…
While the Canadian constitution, as we have seen, does not impose a rigid separation of powers or specifically limit courts to a judicial function, courts do accept that in certain fields they cannot “second guess” the other branches of government.
First, there is a vast area of governmental decision-making which has been reserved for the executive branch of government. The courts may examine executive decisions to ascertain whether they are within the scope of the authority of the officer or agency concerned, and perhaps to see whether they were reached by a proper procedure and in accordance with law including now the requirements of the Canadian Charter of Rights and Freedoms. But to the extent that the executive power being exercised is purely discretionary, the court may not substitute its discretion for that of the officer or agency on whom the power has been conferred.
Second, the legislative branch, so long as it observes the constitutional norms prescribed by the Constitution Act may exercise its legislative power in any manner it chooses. The courts may review legislation in relation to constitutional limitations on legislative power, but may not review it to test its intrinsic merit. The courts will not concern themselves with the wisdom of legislation or the possibility of abuse of legislative power.
The respondents cited a number of cases coinciding with Strayer J.A.’s opinion including Pure Spring Co. Ltd. v. Minister of National Revenue, [1946] Ex. C.R. 471; Calgary Power Ltd. and Halmrast v. Copithorne, [1959] S.C.R. 24; and Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2.
As an example of a case where an injunction application was rejected on the basis that the order requested was not justiciable, the respondents cite Palmer et al. v. Nova Scotia Forest Industries (1983), 60 N.S.R. (2d) 271 (S.C.). In that case, the Court was asked to grant an injunction restraining the defendant from spraying certain areas of the province with phenoxy herbicides. The plaintiffs sought a declaration that they had the right to be free from exposure to the phenoxy herbicide 2,4-D, and 2,4,5-T.
At the trial of the action, there were approximately 150 exhibits filed which included 12 volumes of reports of the plaintiffs’ experts and 5 volumes of the reports of the defendant’s experts. In denying the declaration sought, Mr. Justice Nunn stated at page 343:
… the relief claimed of a declaration that the plaintiffs have the right to be free of exposure to the phenoxy herbicides … is not one within the power of this court to grant …. I am dealing only with rights between these plaintiffs and this defendant. What is being sought is not justiciable between these parties. What the plaintiffs are seeking here is a societal matter and therefore a matter for government or regulatory agency. [Underlining added.]
Mr. Justice Nunn was critical of the action being brought to his Court. At pages 350-351, he stated:
To some extent this case takes on the nature of an appeal from the decision of the regulatory agency and any such approach through the courts ought to be discouraged in its infancy. Opponents to a particular chemical ought to direct their activities towards the regulatory agencies, or, indeed, to government itself where broad areas of social policy are involved. It is not for the courts to become a regulatory agency of this type. It has neither the training nor the staff to perform this function. Suffice it to say that this decision will relate to, and be limited to, the dispute between these parties.
As to the issue regarding dioxin, the Court made observations particularly relevant to this litigation. At page 348, Nunn J. stated:
As to the wider issues relating to the dioxin issue, it hardly seems necessary to state that a court of law is no forum for the determination of matters of science. Those are for science to determine, as facts, following the traditionally accepted methods of scientific inquiry …. If science itself is not certain, a court cannot resolve the conflict and make the thing certain.
In response to the respondents’ jurisdictional argument on justiciability, the applicants argue that the injunction is needed to preserve the resource until the judicial review application can be heard. In this respect, this case was compared to that which existed in MacMillan Bloedel Ltd. v. Mullin; Martin v. R. in Right of B.C., [1985] 3 W.W.R. 577 (B.C.C.A.), wherein it was trees not salmon that were threatened. In that case, the Aboriginal people on Meares Island claimed an Aboriginal right and applied for an interlocutory injunction to halt logging.
The British Columbia Court of Appeal asked whether “the property should be preserved in its present actual condition until the question can be disposed of” and decided that it should because “[i]f logging proceeds and it turns out that the Indians have the right to the area with the trees standing, it will no longer be possible to give them that right.” (At pages 591-592.)
The applicants cite MacMillan Bloedel as a case which found irreparable harm. They similarly argue that if an injunction is not granted to allow sufficient sockeye salmon to reach the spawning grounds this year, that they will no longer have the right to harvest the offspring of those fish in the next cycle year, thus constituting irreparable harm in that the property that they wish to harvest will not exist. Accordingly, it was argued that the fishery should be preserved in its present state just as the Court of Appeal decided in the MacMillan Bloedel case to preserve the forest.
I agree with the respondents’ argument on the preliminary objection. In my opinion, what the applicants want to do is have this Court act as a regulatory authority exercising power paramount to that of the Minister.
The relief requested on the notice of motion is wrapped up in the essential question of the number of fish which should reach the spawning ground this year. In my opinion, this question is not suitable for judicial solution. I agree with the respondents’ argument that to attempt a decision of this sort is simply a “second guess” of the decisions that the Minister has already made on expert advice. I adopt the reasoning that Mr. Justice Nunn used in Palmer et al. v. Nova Scotia Forest Industries that objections of this sort should be raised directly with the decision maker who, unlike the Court, functions in both the realms of science, politics, and social policy.
The conclusive reply to the applicants’ preservation of the resource argument came from Ms. Gaertner who acts on behalf of the intervenor Sto’lo Nation. In her submission she emphasized the critical fact that the applicants do not have a constitutional Aboriginal right to maintain whereas in MacMillan Bloedel the applicants did.
Accordingly, I find that I do not have jurisdiction to grant the relief requested on the notice of motion filed.