T-1 301-84
Gulf Trollers Association (Applicant)
v.
Minister of Fisheries and Oceans and Wayne
Shinners, Regional Director General of the
Department of Fisheries and Oceans for the
Pacific Region (Respondents)
Trial Division, Collier J.—Vancouver, July 17, 18,
19 and August 2, 1984.
Fisheries — Fishery officers varying close time for commer
cial salmon fishing — Species in decline — Commercial
fishing limited to two months — Sport fishery unrestricted —
Management and control of fisheries, if necessarily incidental
to preservation and conservation considerations, within federal
legislative power — Variations of close time based on need for
conservation and on unconstitutional consideration, i.e. prefer
ence for sport fishery — Two factors being inextricably linked,
decisions must fall — Certiorari proper remedy, as impugned
decisions administrative in nature — Fisheries Act, R.S.C.
1970, c. F-14, s. 34(m) — Pacific Commercial Salmon Fishery
Regulations, C.R.C., c. 813, s. 5(1) (as am. by SOR/82-529, s.
3) — British Columbia Sport Fishing Regulations, SOR/82-
645, ss. 4, 13.
Constitutional law — Distribution of powers — Fisheries —
Variation of close time — Preservation of species — Commer
cial fishing season restricted — No restrictions on sport fish
ing — Management and control of fisheries, if necessarily
incidental to protection and conservation of resource, within
federal legislative power — Impugned decisions having effect
of reallocating catch and preferring one user over another —
Decisions based on two disparate reasons: need for conserva
tion and socio-economic management allocations — Second
purpose beyond constitutional powers — Since two consider
ations closely linked, Court cannot segregate — Certiorari
quashing respondents' decisions granted — Constitution Act,
1867, 30 & 31 Vict., c. 3 (U.K.) 1R.S.C. 1970, Appendix II, No.
5] (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1), s. 91(12).
Judicial review — Prerogative writs — Certiorari — Appli
cant seeking order quashing respondents' decisions to vary
close time for commercial salmon fishing — Whether deci
sions administrative or legislative — Functions given to
Regional Director or fishery officer under s. 5 of Regulations
clearly administrative — Inuit Tapirisat case distinguished —
Certiorari granted — Fisheries Act, R.S.C. 1970, c. F-14, s.
34(m) — Pacific Commercial Salmon Fishery Regulations,
C.R.C., c. 823, s. 5(1) (as am. by SOR/82-529, s. 3) —
National Transportation Act, R.S.C. 1970, c. N-17.
The applicant moved for certiorari to quash seven decisions
of fishery officers varying the close time for commercial salmon
fishing in several areas of the Gulf of Georgia in British
Columbia. The applicant's members are operators of fishing
vessels engaged in commercial trolling. The orders were made
following a proposal by the Department of Fisheries and
Oceans to reduce the chinook -salmon catch, a species in serious
decline. Figures tendered as evidence showed a higher rate of
catch by sport fishermen than gulf trolleys. The proposed
method of reduction, to allow adequate escapement, was to
limit the troller season to two months. No specific restrictions
were imposed on the sport fishery. The applicant argues that
the powers of Parliament with respect to fisheries are limited to
matters of protection and conservation of the resource; that
matters of management and control, necessarily incidental to
the former, are permitted; and that the conservation motive
behind the decisions was coupled with an extraneous consider
ation, i.e. to prefer the sport fishery and that, therefore, the
decisions should be quashed. The respondents contend that its
power of conservation and protection exists independently from
its power to manage and control the resource in the public
interest; that there is power to prefer one user over another and
that the decisions were legislative in nature, therefore certiorari
cannot lie.
Held, the motion is granted.
Conservation and rehabilitation of stocks fall within "protec-
tion and preservation of fisheries as a public resource" as stated
by Laskin C.J. in his dissenting reasons in the Interprovincial
Co-operatives case. Management and control, if necessarily
incidental to those considerations, also fall within federal legis
lative power. Therefore, the respondents' argument that Parlia
ment's power to manage fisheries is distinct from any protec
tion considerations fails. The respondents' decisions were based
on two disparate reasons: conservation and socio-economic
management allocations. The second purpose is beyond permis
sible constitutional powers. The two circumstances being inex
tricably linked, the Court cannot segregate, and the decisions
must fall.
The respondents' argument, that the impugned decisions
were legislative in nature, also fails. The functions given to the
Regional Director or a fishery officer under section 5 of the
Regulations made pursuant to paragraph 34(m) of the Fisher
ies Act, to vary any close time, are clearly administrative. The
instant case was to be distinguished from the Inuit Tapirisat
case wherein the Supreme Court of Canada held that the
federal Cabinet exercised a legislative function with respect to
a provision of the National Transportation Act so that judicial
review did not lie.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735.
CONSIDERED:
Interprovincial Co-operatives Ltd. et al. v. The Queen,
[1976] 1 S.C.R. 477.
REFERRED TO:
The Queen v. Robertson (1882), 6 Can. S.C.R. 52;
Reference as to constitutional validity of certain sections
of Fisheries Act, 1914, [1928] S.C.R. 457; Attorney-
General for Canada v. Attorney-General for British
Columbia, [1930] A.C. 111 (P.C.); Mark Fishing Co.
Ltd. v. United Fishermen & Allied Workers' Union et al.
(1972), 24 D.L.R. (3d) 585 (B.C.C.A.), affirmed by
(1974), 38 D.L.R. (3d) 316 (S.C.C.); Fowler v. The
Queen, [1980] 2 S.C.R. 213; Sadler v. Sheffield Corpo
ration, [ 1924] 1 Ch. 483.
COUNSEL:
J. Keith Lowes for applicant.
G. O. Eggerston for respondents.
SOLICITORS:
DuMoulin, Lowes & Boskovich, Vancouver,
for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for decision ren
dered in English by
COLLIER J.: The applicant is a society. Its 100
members are owners or operators of fishing vessels
engaged in commercial trolling. They fish almost
exclusively in seven areas in the Gulf of Georgia.
Those areas are, commonly and collectively,
known in the industry as the "inside salmon troll
ing area" (the "inside area").
In 1984 there were 246 inside salmon trolling
area licences.
The applicant has brought a motion for relief in
the nature of certiorari to quash seven decisions,
dated April 16, 1984, of fishery officers. The
orders, or decisions, varied the close time, in the
inside area, for commercial salmon fishing. The
total closure was opened to permit fishing from
July 1, 1984 to August 31, 1984.
Prior to 1984, gulf trolleys were allowed to fish
for salmon during April, May, June, July, August
and September. In the first three months, only the
chinook species could be caught. In the latter three
months, all species could be fished. But the main
target in the latter three months was cohoe.
Since 1982, in all areas and sub-areas of the
Pacific regions, there has been a complete closure
for commercial catching of all species of salmon
from January 1 to December 31 in each year. That
was done by a Regulation passed by the Governor
in Council in 1982.
In the same year, the Governor in Council, in
the British Columbia Sport Fishing Regulations
[SOR/82-645], passed this Regulation:
4. No person shall engage in sport fishing during the period
commencing at 2300 hours and ending at 2400 hours on
December 31 in any year.
I interpret the Regulation to mean the only close
time for sport fishermen is one hour before mid
night on New Year's eve. Token conservationism is
the most charitable phrase to be said for that
provision. By section 13 of the same Regulations,
any close time or fishing quotas, set out in the
Regulations, may be varied by the Regional Direc
tor or a fishery officer.
Sport fishermen are restricted in the use of
certain equipment. They are also limited to two
chinook salmon per day in the winter time, four
per day in the summer time, and a grand total of
thirty annually.
The evidence before me is that, historically,
sport fishermen take more chinook in a given year
than the gulf troller fishery. 1982 was apparently
an exception. Again, historically, a significantly
higher number of chinook salmon are taken by the
sport fishery in July and August than in other
months. In those months the sport catch has, as
well, been higher than the gulf troller catch.'
' These facts are taken from the affidavit of Griswald. See
also Ex. A-4 to the affidavit of Mazzone, sworn July 6, 1984.
It is estimated there were, in 1983, over 300,000
sport fishermen in the Gulf of Georgia.
The evidence is clear the chinook species, par
ticularly the native, or wild variety, is in serious
decline. Preservation, protection, and rehabilita
tion are required to ensure future adequate stocks.
The applicant's members, at the outset, frankly
concede that to be the case.
The chinook catch in 1983, in the inside area,
was approximately as follows:
by gulf troll—approximately 126,000;
by sport fishermen-198,000-200,000.
The then Minister of Fisheries and Oceans, and
his departmental officials, in early 1984, stated a
reduction in catch was required. The target for
1984, in the inside area, was approximately
225,000 pieces (or fish): a reduction of 35% from
1983.
The proposed method of reduction, to allow
adequate escapement, was to limit the commercial
trollers to July and August. In those months, the
target fish is cohoe. Chinook are, however, inci
dentally caught. Most chinook have been taken,
heretofore, in April, May and June.
No specific restrictions, or reductions, in respect
of the sport fishery were proposed. There was a
statement, or suggestion, the catch of those users
might, in some manner, be restricted. (See, for
example: affidavit of Griswald, Ex. F, G; affidavit
of Mazzone, sworn July 6, 1984, Ex. A1, page 9;
Ex. A5, particularly page 2.)
At some stage, a figure of 160,000 fish was
mentioned.
On March 16, 1984, the proposal in respect of
the inside, and other areas was communicated to
the industry. The effect, if implemented, was to
reduce the commercial trollers' catch to 20% to
25% of their 1983 catch: 20,000 to 25,000 fish in
1984, from 125,620 in 1983.
On April 5, 1984, the then Minister, and offi
cials from his Department, appeared before the
House of Commons Standing Committee on Fish
eries and Forestry. The following explanation was
given by the Minister (pages 13:9-13:10):
Mr. De Bané: Mr. Chairman, I can certainly answer part of
the questions asked by my colleague, Mr. Fraser, and I am sure
he would like to probe maybe more with the experts of the
Department on whose advice I rely.
When you are talking about the Georgia Strait chinook
salmon, the major stocks have been tagged for a number of
years and coded wire-tagged recoveries identify the sport and
commercial fisheries where these stocks are caught. Escape-
ment data are reliable for Georgia Strait stocks and escape-
ments continue to decline, even on some hatchery stocks. I can
tell you that escapement is less than 30% of the optimum.
Gulf trollers and sport fishermen are major users and their
combined catch was 326,000 in 1983: The technical commit- •
tee's advice is to reduce catch by 35% to 225,000. The technical
committee assumed that the sport catch would not be cut below
the 1983 catch of 200,000, therefore troll reduction had to be
80%. Trollers can catch 25,000 chinooks in the July and August
cohoe season. The April to June and September fisheries
historically have high chinook catches.
As to the chinooks that would be foregone by the gulf trollers
and what will happen to the chinooks saved, the proposed
July-August season would reduce troll catch by approximately
100,000 chinnoks [sic]. About 30,000 of these will reach the
spawning grounds; 10,000 will die by natural mortality; most of
the balance, it is assumed, will be caught by the sports fishery,
if there are no new sport fishery restrictions.
Mr. Fraser: Mr. Minister, perhaps you yourself or your
public officials could explain your indication that the sports
catch would be maintained at 200,000 chinooks in the Gulf of
Georgia. If that is so, and if, as you said, the trollers would
catch—I do not know whether you put a figure on it. The
326,000 is the combined present catch of both sports fishermen
and trollers in the gulf. The Minister said that sllObId•'be
reduced by 35%, which would bring it down to 225,000. The
sports catch would not fall below 200,000, so that leaves 25,000
for the trollers. The Minister also said that there would be
about 100,000 extra chinook not caught and the Minister said
30% would get to the spawning bed—so that is 30,000-10,000
would die, and the balance would be caught by the sport
fishery. What I do not understand ...
Mr. De Bané: If there are no new sport fishery restrictions,
yes.
Mr. Fraser: What do you mean by that, Mr. Minister?
I just heard one of my colleagues say: "That is the big if." Of
course it is a big "if " because it covers 60,000 chinooks. If all
that happens is that several hundred trollers are put on the
verge of bankruptcy or into bankruptcy, to release 60,000
chinooks to sport fishermen over and above their level of catch
of 1983, one has to wonder just where is the conservation in it
all. I am not minimizing that a 30,000 extra chinook on the
spawning grounds is not better than nothing, but I really
wonder how anybody can ask the trollers to support this with
enthusiasm when they are going to say, it seems, with some
arithmetical justification, that their cut is going to somebody
else and is not getting to the spawning beds.
The Chairman: Mr. Minister.
Mr. De Bané: You see, to Mr. Fraser, through you, Mr.
Chairman, Mr. Fraser has correctly summed up. What I have
said is that the escapement is less than 30% of optimum, so the
advice I received was to reduce the combined catch of sports
fishermen and trollers by about 100,000, so from 325, let us
say, to 225. Assuming that the sports fishery will remain where
they are, which is 200,000, which is a substantial decrease of
where they were in 1981 at 300,000—already we have
decreased them by 100,000—as you say, of that 100,000 that
we are taking out of the fishery, 30,000 will reach the spawning
grounds, 10,000 will die and the remainder will be caught by
the sports fishery if there are no new sports fishery restrictions.
So with your permission, may I ask Mr. Wayne Shinners to
develop on that? [My underlining.]
Later in the proceedings, the Minister was asked
if the sport fishery catch was going to be cut in
1984. The Minister did not give a specific, or
precise, answer (see pages 13:16 to 13:17, and
13:24). But he did reiterate his intention to give
that resource user a higher importance.
On April 16, 1984, as earlier recounted, the
orders or decisions, now challenged, were made.
The Minister's Advisory Council met on April
16 to 18. The Council's make-up has representa
tives of various groups interested in salmon and
other fishing in the Pacific Region. Mr. Griswald,
president of the applicant society, was a member.
The Advisory Council provides advice to the Min
ister, or to him, through the Director-General,
Pacific Region.
A portion of the minutes of the Council meeting
were put in evidence. In the following extracts,
Griswald is the president of the applicant. Schutz
is a Fisheries and Oceans Regional Salmon Coor
dinator. Shinners is the Department's Regional
Director-General for the Pacific Region.
Pages 15-16 of the minutes:
Griswold [sic]: What are DFO plans if the chinook catch is
exceeded?
Schutz: July 1-August 31 is a guaranteed two months
regardless of catch. We have also said that we
would support giving more time if the catch
was not reached.
Griswold [sic]: There is a biological need for a catch ceiling
in the Gulf of 225,000 chinook. What will
DFO do if the ceiling is reached early in the
season?
Shinners: My inclination is to shut down. Is the govern
ment prepared to put the sport fishery on a
quota? That is the question.
Griswold [sic]: Would you reallocate our catch to theirs or
would you decrease the sport catch?
Shinners: Decrease the sport catch.
Nichol: Shinners said on CBC radio that it was ludi
crous to suggest an equivalent reduction for
the sport fishery in Georgia Str. [as for the
troll.] How can you justify this? It amounts
to reallocation?
Shinners: It's reallocation if nothing is done to the sport
fishery. We expect the government to make
restrictions on the sport fishery.
We have a problem with chinook coastwide,
and the Canada/U.S. agreement affects many
stocks. These [Georgia Str.] stocks are not
affected to the same degree by U.S. fisheries.
Where we can be doing something domesti
cally, we should be doing it.
It is total incompetence to have a Georgia
Str. catch of 325,000 chinook and an escape-
ment of only 25,000 pieces.
You have a valid point about the impact on
Gulf trollers. It eliminates them. We are
asking them to take the ultimate penalty.
There was, as I see it, a clear statement, by the
senior Pacific Coast Regional Officer, that the
reduction of the troll season, without any limita
tion on sport fishermen, amounted to reallocation
of the chinook catch.
I turn now to the submissions of the parties.
For the applicant, it is said the powers of the
respondents, and of Parliament, in respect of "Sea
Coast and Inland Fisheries" 2 are limited to mat
ters of protection and conservation of the
resources; matters of management and control,
necessarily incidental to protection and conserva
tion, are permitted; there were two main purposes
behind the impugned orders: the conservation, pre
servation and rehabilitation of the chinook, cou
pled with the intent to prefer, or allocate to, the
sport fishery; the second purpose is an extraneous
and unconstitutional consideration; the decisions
ought to be quashed.
The respondents' argument runs this way: the
federal government has not only the power of
conservation and protection in respect of the fish
eries resources, but, quite apart from that, it can
manage the resource in the interests of the general
public; there is power to allocate to, and to prefer,
one user over another. Alternatively, if the federal
power is that of conservation, protection, and
rehabilitation only, then the decisions here were
basically for those purposes; a preference for, or
allocation to, one user over another was merely
incidental; the variation of the close times was
therefore proper. Further, it was said, the
impugned decisions were not administrative deci
sions or actions; they were legislative functions;
certiorari does not, there, lie.
All the relevant cases, dealing with the federal
power in respect of fisheries, were cited.' Mart
2 Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C.
1970, Appendix II, No. 5] (as am. by Canada Act, 1982, 1982,
c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1),
subs. 91(12).
3 The Queen v. Robertson (1882), 6 Can. S.C.R. 52, at pp.
120-121; Reference as to constitutional validity of certain
sections of Fisheries Act, 1914, [ 1928] S.C.R. 457; Attorney-
General for Canada v. Attorney-General for British Columbia,
[1930] A.C. 11l (P.C.); Mark Fishing Co. Ltd. v. United
Fishermen & Allied Workers' Union et al. (1972), 24 D.L.R.
(3d) 585 (B.C.C.A.) at pp. 591-592, affirmed by (1974), 38
D.L.R. (3d) 316 (S.C.C.); Interprovincial Co-operatives Ltd.
et al. v. The Queen, [1976] 1 S.C.R. 477; Fowler v. The Queen,
[1980] 2 S.C.R. 213.
land J., delivering the judgment of the Supreme
Court of Canada in the Fowler case, reviewed the
decisions I have listed. The Court approved the
words of Laskin C.J., in his dissenting judgment in
the Interprovincial Co-operatives case (at page
495):
It is, in my view, untenable to fasten on words in a judgment,
such as the words "tending to their regulation, protection and
preservation"; which appear in the reasons in The Queen v.
Robertson, and read them as if they have literal constitutional
significance. Federal power in relation to fisheries does not
reach the protection of provincial or private property rights in
fisheries through actions for damages or ancillary relief for
injury to those rights. Rather, it is concerned with the protec
tion and preservation of fisheries as a public resource, con
cerned to monitor or regulate undue or injurious exploitation,
regardless of who the owner may be, and even in suppression of
an owner's right of utilization. I see nothing in the impugned
Manitoba Act that trespasses on federal legislative authority in
relation to fisheries. [My underlining.]
Conservation and rehabilitation of stocks, to my
mind, fall within "protection and preservation" of
the public resource. Management and control, if
necessarily incidental to protection and preserva
tion, also fall within federal legislative power.
I do not, therefore, accept the contention, on
behalf of the respondents, that there is power,
federally, to manage and control fisheries for the
benefit of Canadians, quite distinct from any pro
tection or preservation considerations.
The April 16 variations of the total closure were,
on the evidence before me, conceived on two bases:
a need for conservation, and an intention to favor
the sport fishery user of the resource. The conser
vation motive was at the "ultimate penalty"
expense of the commercial inside trollers. The
discriminatory preference was for the sport fish
ery. The respondents knew the cutting of the troll -
ers' season and catch, while permitting an estimat
ed 30,000 chinook to escape for protection and
conservation purposes, at the same time opened an
estimated 60,000 chinook to sport harvest.
The respondents' decisions of April 16 were, to
my mind, prompted by two disparate and pervad-
ing reasons: conservation, and socio-economic
management allocations.
The second purpose was, in my view, beyond
permissible constitutional powers. The two con
siderations were inextricably mixed. In those cir
cumstances the Court cannot segregate. The deci
sions must fall. This whole matter, of when
administrative decisions can, in those circum
stances, be successfully challenged, is analysed in
de Smith's Judicial Review of Administrative
Action (4th ed. by J. M. Evans, London: Stevens
& Sons Limited, 1980), at pages 325-332. I refer
particularly to the passage at page 332:
(5) Was any of the purposes pursued an unauthorised pur
pose? If so, and if the unauthorised purpose has materially
influenced the actor's conduct, the power has been invalidly
exercised because irrelevant considerations have been taken
into account.
and the reasons of P. O. Lawrence J., in Sadler v.
Sheffield Corporation, [1924] 1 Ch. 483, at pages
504-505.
Finally, I go to the submission that the variation
decisions of April 16, 1984, were pure legislative
functions, not administrative functions. Paragraph
34(m) of the Fisheries Act [R.S.C. 1970, c. F-14],
and subsection 5(1) of the Regulations [Pacific
Commercial Salmon Fishery Regulations, C.R.C.,
c. 823 (as am. by SOR/82-529, s. 3)] are referred
to. By paragraph 34(m) of the statute, the Gover
nor in Council may make regulations
34....
(m) authorizing a person engaged or employed in the
administration or enforcement of this Act to vary any close
time or fishing quota that has been fixed by the regulations.
The Regulations presently provide as follows:
5. (1) The Regional Director or a fishery officer may vary
any fishing quota or close time set out in these Regulations in
respect of any river, Area or Subarea.
The respondents relied on Attorney General of
Canada v. Inuit Tapirisat of Canada et al., [1980]
2 S.C.R. 735. That decision is clearly distinguish
able. The Supreme Court, in considering the vari
ous statutes under review, and particularly the
National Transportation Act [R.S.C. 1970, c.
N-17, s. 64], found, among other grounds, the
federal Cabinet was there exercising a legislative
function; judicial review did not lie.
Here, the functions given to the Regional Direc
tor or a fishery officer are, in my opinion, clearly
administrative, not legislative.
The applicant is entitled to succeed on its
motion.
I shall not issue, at this time, a formal pro
nouncement or order. I would like to hear counsel
on two matters:
(a) The precise wording of the seven orders or
notices to be quashed. All that is in front of me
at the moment is an illustrative one, set out as
Exhibit "B", in the affidavit of Mr. Shinners.
(b) The date on which the pronouncement
should issue. If it were effective immediately, it
may be inside trollers, perhaps successfully
catching salmon, could be in breach of the
Regulations.
The applicant will recover the costs of this
motion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.