Federal Court Decisions

     T-796-96

BETWEEN:     

     THE LABRADOR MÉTIS ASSOCIATION and

     TODD RUSSELL

    

     Applicants

     - and -

     THE MINISTER OF FISHERIES AND OCEANS and

     THE DEPARTMENT OF FISHERIES AND OCEANS

     Respondents

     REASONS FOR ORDER

ROTHSTEIN J.:

     Although the written arguments of the parties addressed an extensive array of issues, including Charter issues, in oral argument there was only one material issue argued. The question is whether the Minister of Fisheries and Oceans (Minister), in declining to grant a communal fishing licence to the Labrador Métis Association (MLA), breached principles of natural justice or procedural fairness in making that decision without affording the MLA the opportunity to make submissions on whether it represented a group of aboriginal people who have continuously used fisheries resources in an area from pre-European contact to the coming into effect of the Constitution Act, 1982.

     The basis of the LMA's position is the Aboriginal Communal Fishing Licences Regulations, P.C. 1993-1318 (SOR/93-332, p. 2899, June 30, 1993) section 4 of which provides:

4. The Minister may issue a communal licence to an aboriginal organization to carry on fishing and related activities.

The LMA also relies on policies of the Department of Fisheries and Oceans (DFO) which provide for consultation with aboriginal people before decisions are taken which may affect their food fishery (see DFO Interim National Policy, Principles and Procedural Guidelines for the Management of the Aboriginal Peoples Food Fishery, May 1, 1991). In particular, the LMA relies on DFO Policy for the Management of Aboriginal Fishing, dated February 21, 1993, section 5 of which provides in part:

5.      For the purposes of this policy "First Nation" includes any organization which represents a group of Aboriginal people who have continuously used the resource in the area in question from pre-European contact to the coming into effect of the Constitution Act, 1982. Such organizations include groups representing Indians registered or entitled to be registered under the Indian Act, Inuit, non-status Indians and Métis. DFO may require that the First Nation produce evidence of historical use of the resource in the area.

The same provision appears in Department of Fisheries and Oceans Policy for the Management of Aboriginal Fishing dated October 3, 1994.

     In March 1995, the LMA instituted discussions with the DFO for the purpose of negotiating an Aboriginal Fishing Agreement. What prompted the initiative seems to have been certain prosecutions of members of the LMA for alleged illegal fishing.

     During the course of discussions, officials of the Minister formed the impression that the LMA was attempting to lever an initial attempt at obtaining a communal fishing licence into recognition by the federal government of the LMA's Aboriginal rights. The latter question has large implications beyond communal fishing licences, e.g. land claims. As a result, Patrick Chamut, Assistant Deputy Minister, DFO, wrote to the LMA on August 23, 1995, to advise that the DFO would not authorize the members of the LMA to fish salmon as a reflection of an Aboriginal right.

     There then took place a further series of communications resulting in a letter from William Rowat, Deputy Minister, DFO, to the LMA dated November 24, 1995 advising that the DFO was not prepared to issue a communal fishing licence to the LMA. In this letter, Mr. Rowat stated the government's reason for not granting the licence in the following terms:

I must inform you that, based on information received to date and on our interpretation of the Department of Fisheries and Oceans' (DFO) Policy on the Management of Aboriginal Fishing, DFO is not prepared to issue a communal licence to the LMA.

I emphasize that this decision is based on interpretation of DFO's policy. The issue which DFO officials have been attempting to resolve is whether the Labrador Métis Association falls within the definition of "First Nation" contained in this policy. After much consideration, officials have concluded that this definition is limited to groups or organized societies which have used fisheries resource in an area since before European contact. We are not satisfied at this time that the LMA represents such a group.

[emphasis added]

However, Mr. Rowat left the door open for a further consideration of this decision based on further submissions by the LMA to the Department of Justice and the Department of Indian Affairs and Northern Development:

We understand that this same issue is being considered in the context of current prosecutions of LMA members for offenses under the Fisheries Act and that the LMA is providing information relevant to this issue to the prosecutor in this case. We will be receiving this information through the Department of Justice and will further consider your request in light of this information. We also understand that the same issue is being considered by the Department of Indian Affairs and Northern Development in the context of the LMA's comprehensive land claim application. Further, this and other issues related to the nature of the group represented by the LMA will be considered in the context of the self-government process.

I feel that it is most appropriate that the LMA provide relevant information to these agencies, which have the lead in determination of this nature. We understand that you are providing input. I see little to be gained from establishing a separate process for addressing the same issues in the context of application of DFO policy. Rather, DFO will continue to consult with these agencies on this issue over the winter and will re-consider the application of our policy to the LMA in light of emerging information and any relevant advances in the law.

DFO will be reviewing its policy on these matters over the winter in consultation with these government agencies to ensure that our policy is consistent with the law on Aboriginal rights and wider government policy on Aboriginal peoples.

We will inform you of the results of this review, on March 31, 1996.

By letter dated January 12, 1996, Mr. Rowat slightly changed his commitment to consult with the LMA:

As I stated in my letter of November 24 to you, the Department of Fisheries and Oceans is seeking assistance on those historical and legal matters from the Department of Justice and Indian and Northern Affairs. If there is any change in DFO's policy regarding the Labrador Metis, we will consult with you at the end of March 1996.

Accordingly, as of January 12, 1996, the government would only consult further with the LMA if there was any change in its policy.

     The LMA received no word by March 31, 1996 and the application for judicial review was brought on April 3, 1996.

     I will assume, without deciding:

(1)      That by not consulting with the LMA by March 31, 1996, the Minister was, as of that day, confirming his original decision not to grant a communal fishing licence to the LMA and that this therefore constituted a decision subject to judicial review in this Court.

(2)      That the Minister, in making that decision, was obliged to provide the LMA with the opportunity to produce evidence that it represented a group of aboriginal people who have continuously used the fishing resource in their area from pre-European contact to the coming into effect of the Constitution Act, 1982.

     It seems clear from Mr. Rowat's letter of November 24, 1996, that his decision at that time was interim only. Indeed, he uses the words "at this time" and goes on to provide for the submission of further information by the LMA. As such, it cannot be said that the LMA was being denied the opportunity to make submissions of historical use of the fishery.

     As to the way in which Mr. Rowat says the LMA could make its submissions, counsel for the applicant says that it is not satisfactory that the information to be relied upon would be that supplied by the LMA to the prosecutor in the fishing prosecutions. Should the LMA choose to provide such information voluntarily (and there is an implication in the material that this may have been the intent of the LMA) there is no reason why such information could not be passed on from the Department of Justice to the DFO. The same is true of information provided by the LMA to the Department of Indian Affairs and Northern Development. While this is not the most direct way in which to obtain the representations of the LMA, it is a means whereby such information as the LMA chose to provide could be considered.

     The record before me contains no indication of what information was supplied to the Department of Justice or the Department of Indian Affairs and Northern Development by the LMA. Therefore, I cannot find that in not consulting with the LMA on March 31, 1996, and thereby confirming its original refusal to grant a communal fishing licence to the LMA, the Minister ignored evidence or otherwise erred in his decision.

     It appears from the record that insofar as the issuance of a communal fishing licence is concerned, it was not dealt with as a stand-alone issue but was bound up in other, further reaching issues. Apparently, this has led to misunderstandings and perhaps some confusion on both sides. In the material before me, I see nothing substantive about the issue in question, namely, whether the LMA represents persons whose ancestors have used the fishery resource in their area since before European contact.

     The policy of the government appears to be that it is open, in light of emerging information and advances in the law to reconsider its decision. Therefore, the LMA, even now, has the opportunity to provide evidence in support of its position.

     The judicial review must be dismissed.

     Marshall Rothstein

    

     J U D G E

OTTAWA, ONTARIO

FEBRUARY 3, 1997