Date: 20050308
Docket: T-1070-03
Citation: 2005 FC 342
BETWEEN:
THE ATTORNEY GENERAL OF THE NUNAVUT TERRITORY
Applicant
and
THE ATTORNEY GENERAL OF CANADA, ATLANTIC SHRIMP COMPANY, a Division of CLEARWATER SEAFOODS, CARAMER LIMITÉE,
FISHERY PRODUCTS INTERNATIONAL LTD., M/V OSPREY LTD., MERSEY
SEAFOODS LTD., NEWFOUND RESOURCES LTD., CREVETTES NORDIQUES,
a Division of CLEARWATER SEAFOODS, MAKIVIK CORPORATION, HARBOUR
GRACE SHRIMP CO. LTD., LABRADOR FISHERMAN'S UNION SHRIMP CO. LTD., PIKALUJAK FISHERIES LTD., QIKIQTAALUK CORPORATION, UNAAQ
FISHERIES INC., TORNGAT FISH PRODUCERS COOPERATIVE,
NUNAVUT TUNNGAVIK INCORPORATED
Respondents
INTRODUCTION
[1] By a press release dated the 26th of May, 2003, the then Minister of Fisheries and Oceans (the "Minister") announced an increase in the Total Allowable Catch (the "TAC") in the north-eastern shrimp fishery for 2003 over the equivalent TAC for 2002. The opening paragraphs of the news release are in the following terms:
Harvesters in the northern shrimp fishery will enjoy a substantial 29 percent increase in the total allowable catch (TAC) this year, the Honourable Robert G. Thibault, Minister of Fisheries and Oceans, announced today.
"This is one of the best news stories in the Atlantic Canada fishery. Even with an increase in the quota by 34,260 tonnes to a TAC of 152,102t, the exploitation rates are low in this healthy and abundant resource," said Minister Thibault.[1]
[2] In a supporting "Backgrounder", some detail was provided regarding the allocation of the increased TAC among seven (7) discreet Shrimp Fishing Areas ("SFA"s). With respect to SFA 1 in the northern Davis Strait area between Baffin Island and Greenland, it was disclosed that the 2002 TAC of 12,040 tonnes was to be increased for 2003 to 14,167 tonnes. The Backgrounder described the allocation of this increase among fishery interests in the following terms:
SFA 1 will see an increase of 2,127t. Of this, 187t will be allocated to Makivik, consistent with the Nunavik Inuit Marine Region Agreement in Principle. In addition, the Nunavut interests will receive 1,000t of the increase. The remaining 940t will be allocated to existing offshore licence holders who have been instrumental in developing this fishery.[2]
[3] For ease of reference, an outline map of the east coast of Canada, including a portion of Baffin Island, of the northern United States, of the west coast of Greenland and of the Northwest Atlantic Fisheries Organization ("NAFO") Convention Area of the adjacent seas, divided into fishery areas, is attached to these reasons as Annex I[3]. The greater part of NAFO fishery areas 0 and 1 are within Baffin Bay and Davis Strait between Baffin Island and Greenland. NAFO fishing area 0 is primarily adjacent to Baffin Island and outside Canada's inshore fishery waters. NAFO fishery area 1 is primarily adjacent to Greenland. One exception with respect to NAFO fishery area 1 is a relatively small, roughly triangular area on the Canadian side of the line separating Canadian and Greenland fishery waters in Davis Strait, that has been cross-hatched on Annex I. This area is SFA 1, sometimes referred to as SFA 01. It is central to this proceeding. A more detailed outline map of Canada's northern shrimp fishery areas is attached as Annex II[4], on which SFA 1 is clearly delineated.
[4] On this application for judicial review, the Applicant challenges, not the increase in the TAC for the northern shrimp fishery at large and not the increase in the TAC for SFA 1, but rather the allocation of the increase in the SFA 1 TAC among various fishery interests. In the application for judicial review that is before the Court, the following appears:
By news release, on May 26, 2003, the Minister announced an increase in shrimp quota for Shrimp Fishing Area 01 and allocated significant quotas to interests other than Nunavut interests.[5]
[5] Later in the application for judicial review, the following appears:
...
7. The Minister's decision fails to reflect the special consideration of relevant principles required by the Nunavut Land Claims Agreement and fails to reflect the Independent Panel's recommendation, previously accepted by the Minister.
8. The Minister erred in law in failing to take into consideration relevant factors, namely,
(a) the factors of adjacency and economic dependence which the Minister has a duty to consider under the Nunavut Land Claims Agreement and
(b) the report and recommendation of the Independent Panel and the Minister's announced acceptance of the recommendation.
[6] On the face of the application for judicial review, the Applicant seeks the following relief:
(a) An order in the nature of certiorari quashing or setting aside the decision of the Minister and referring the matter back to the Minister for determination in accordance with such directions as this Honourable Court considers appropriate.
(b) Such further and other relief as counsel may advise and this Court may permit.
[7] During the course of the hearing of this application for judicial review, given that the 2003 northern shrimp fishing season was then long closed, there was general agreement that, if any relief were to be granted to the Applicant, declaratory relief would be more appropriate than the relief originally sought.
THE PARTIES
[8] The Attorney General of the Nunavut Territory as Applicant and the Attorney General of Canada as Respondent were the sole parties to this application for judicial review as originally filed. The remaining respondents were added in an amended application for judicial review filed pursuant to an order of this Court dated the 28th of August, 2003.
[9] Nunavut Tunngavik Incorporated is a "Designated Inuit Organization" that represents the Inuit of Nunavut in all matters relating to fisheries. It is the organization charged with ensuring that all parties to the Nunavut Land Claims Agreement (the "Agreement") fulfill their obligations under the Agreement. While Nunavut Tunngavik Incorporated is nominally a respondent on this application for judicial review, it substantially supported the position of the Applicant.
[10] Makivik Corporation is a non-profit corporation dedicated to, among other objectives, research into and development of viable and sustainable fishing activities on behalf of the Nunavik Inuit of Northern Quebec. Makivik is the holder of one off-shore northern shrimp licence and of a half-interest in the licence held by Unaaq Fisheries Inc. Unaaq is a joint venture between Makivik and Qikiqtaaluk Corporation, an economic development corporation representing the Inuit of the Baffin Region of Nunavut. Makivik Corporation neither defended nor opposed the position of the Attorney General of Nunavut but rather urged the Court to consider the constraints imposed, not only by Nunavut Inuit treaty rights, but also through the non-derogation provisions of the Nunavut Land Claims Agreement, and undertakings provided to Nunavik Inuit through the Nunavik Inuit Marine Region Agreement in Principle. It further urged the Court to consider certain process rights, including, counsel urged, the obligation of the Crown to negotiate in good faith pursuant to the Agreement in Principle and its continuing treaty negotiations with Makivik Corporation.
[11] Qikiqtaaluk Corporation and Unaaq Fisheries Inc. are briefly referred to in the foregoing paragraph regarding Makivik Corporation. In brief submissions filed on their behalf, the former indicated that it takes no position on this application for judicial review except as a holder of a one-half interest in the licence held by Unaaq Fisheries Inc. Unaaq adopted and relied on the submissions of Makivik Corporation to the effect that the allocation of increased quota for 2003 to Nunavik interests by the Minister was entirely appropriate and should not be disturbed.
[12] Labrador Fisherman's Union Shrimp Co. Ltd., in addition to holding a northern shrimp fishing licence for SFA 1, is in the business of purchasing, processing and selling shrimp in domestic and international markets. It was separately represented before the Court and urged that the decision under review be upheld.
[13] Atlantic Shrimp Company, a Division of Clearwater Seafoods Limited Partnership, Caramer Limitée, Fishery Products International Ltd., M/V Osprey Ltd., Mersey Seafoods Ltd., Newfound Resources Ltd., and Crevettes Nordiques, a Division of Clearwater Seafoods Limited Partnership are all holders of northern shrimp fishing licences in SFA 1 and members of the Canadian Association of Prawn Producers. They urged that the decision under review be upheld and that the application for judicial review be dismissed with costs.
[14] None of Harbour Grace Shrimp Co. Ltd., Pikalujak Fisheries Ltd. and Torngat Fish Producers Cooperative filed written materials on this application for judicial review. They were not represented before the Court.
BACKGROUND
[15] In common usage, shrimp are not fish but rather crustaceans[6]. The foregoing notwithstanding, crustaceans are defined to be "fish" for the purposes of the Fisheries Act[7] and of the Coastal Fisheries Protection Act[8]. Further, it was not in dispute before the Court that shrimp are "wild life", an undefined term used throughout the Agreement.[9] Thus, once again, it was not in dispute that the Government of Nunavut, Nunavut Tunngavik Incorporated, the Nunavut Wildlife Management Board established by the Agreement, the Government of Canada through the Minister and as represented by the Attorney General of Canada in this proceeding, and NAFO have an interest in the conservation and exploitation of Northern shrimp, particularly within SFA 1. The foregoing is not to prejudge the status of the Applicant on this application for judicial review, the Attorney General of the Nunavut Territory, to initiate this application. That is an issue that will be dealt with later in these reasons.
[16] This is not the first time that allocation of fishery resource quotas in waters adjacent to Baffin Island has been before this Court, then the Trial Division of the Federal Court of Canada. The issue has also twice been before the Appeal Division of the same Court.[10] In the two previous cases, the issue related to allocation of quota in the turbot fishery. Both of those cases were initiated and carried to their conclusion before Nunavut, with its distinct territorial government, formally came into being.
[17] The following is a brief description of the Northern shrimp fishery and its development. The description is drawn substantially from the Statement of Fact and Law filed on behalf of the Attorney General of Canada which, in turn in this regard, is based upon the affidavit of the Attorney General of Canada's affiant and the record of the cross-examination of the Applicant's affiant.
[18] The commercial Northern shrimp fishery is based primarily on a single species, Pandalus borealis (pink shrimp), although a second species Pandalus Montagui (striped shrimp) has been receiving increased commercial interest since 2002.
[19] The fishery began in 1978 when the Minister issued Northern shrimp commercial off-shore fishing licences to Newfoundland and Labrador, Nova Scotia, New Brunswick and Quebec based interests. Prior to that time, Nunavut fishers had not fished commercially for shrimp in off-shore waters.
[20] In 1987, the Minister issued four (4) additional off-shore shrimp fishing licences. One of those licences went to Nunavut interests and a 50% interest in one additional licence was controlled by Nunavut interests. In 1991, Nunavut held 8.8% of TAC for Northern shrimp in adjacent waters after the Minister issued a further licence to a Newfoundland and Labrador company.
[21] Although SFA 5 (see Annex II) is not adjacent to Nunavut, the Minister allocated 6,120 tonnes of Northern shrimp quota in that area to the Northern Coalition in 1997, a coalition holding seven (7) licences of which 1.5 were held by Nunavut interests. In the result, Nunavut interests secured access to an additional 1,311 tonnes of Northern shrimp quota.
[22] In 1999, the Minister allocated an additional 1,750 tonnes of Northern shrimp quota to Nunavut interests in SFA 2, thus increasing the share of Nunavut interest in Northern shrimp quota resources to 16.9%.
[23] In 2000, the Minister allocated an additional quota of 500 tonnes of P. Montagui in SFA 3 to Nunavut interests. Since this amount compromised the entire increase for that species in that SFA, Nunavut's share of the Northern shrimp resource allocation increased to 18%.
[24] Although the NAFO Scientific Council recommended an increase in P. Borealis quota in SFA 1 for 2001, the Minister did not implement an increase in the TAC for that year due to low catch rates. Thus, Nunavut interests remained at an 18% share level.
[25] In 2002, the off-shore industry asked that the Minister implement the 2001 NAFO recommended increase for SFA 1, due to increased catch rates in that area. The Minister allocated an increase of 2,690 tonnes to existing commercial off-shore licence holders, including Nunavut interests, following the existing Enterprise Allocation System which provides for equal allocation of increased TAC among existing licence holders. In the same year, the Minister increased allocation for P. Montagui taken in SFAs 2 and 3 with Nunavut interests receiving 100% of those quota increases. In the result, Nunavut interests' share of resource quota for Northern shrimp rose to 24.5%.
[26] The foregoing brief history of licence and TAC allocation brings us to the allocation of increased TAC in SFA 1 announced by the Minister on the 26th of May, 2003, which announcement is the subject of this application for judicial review. As earlier noted, the increase in TAC available for allocation for 2003 was 2,127 tonnes. 187 tonnes went to Makavik interests, "...consistent with the Nunavik Inuit Marine Region Agreement in principle". Nunavut interests received an additional allocation of 1,000 tonnes. The remaining 940 tonnes was allocated to existing off-shore licence holders "...who have been instrumental in developing this fishery...". Of the 17 existing off-shore licence holders who received the benefit of the increased allocation of 940 tonnes, 1.5 of the licence holders were Nunavut interests.
[27] Counsel for the Applicant, firmly supported by counsel for Nunavut Tunngavik Incorporated, essentially urged that the Minister, in arriving at the quota allocation decision under review, clearly failed to give special consideration to the principles of adjacency to and economic dependence of the communities of the Nunavut Settlement Area on marine resources, as required by Article 15.3.7 of the Agreement. That Article reads as follows:
Government recognizes the importance of the principles of adjacency and economic dependence of communities in the Nunavut Settlement Area on marine resources, and shall give special consideration to these factors when allocating commercial fishing licences within Zones I and II. Adjacency means adjacent to or within a reasonable geographic distance of the zone in question. The principles will be applied in such a way as to promote a fair distribution of licences between the residents of the Nunavut Settlement Area and the other residents of Canada and in a manner consistent with Canada's interjurisdictional obligations.[11] [emphasis added]
[28] More will be said about this position and the related issue of assurances allegedly given by the Minister to the Inuit of the Nunavut Settlement Area and organizations representing them, including their Territorial Government, in the portion of these reasons entitled "Analysis".
[29] Speaking generally, counsel for the licence holders other than Nunavut interests and Nunavik interests urged that the allocation under review was open to the Minister and that he quite properly took into account the historic interests of those who had engaged in the development of the Northern shrimp fishery. None of those interests took the position that the special allocation in favour of Nunavut interests was excessive.
[30] In the same vein, counsel for the Nunavik interests expressed satisfaction with the recognition by the Minister, in the allocation decision in question, of what the Nunavik interests perceived to be the moral obligation of the Government of Canada arising out of the Nunavik Inuit Marine Region Agreement in Principle and the ongoing negotiations aimed at the resolution of the land claim of the Nunavik Inuit. Like the holders of Northern shrimp licences other than the Nunavut and Nunavik interests, the Nunavik interests took no exception to the special allocation made by the Minister to Nunavut interests.
ISSUES
[31] Two preliminary issues arising out of this application for judicial review were raised on behalf of the Attorney General of Canada. Those two issues are first: the status of the Attorney General of the Nunavut Territory to bring this application; and secondly, what is alleged to be the mootness of the application.
[32] As with all applications for judicial review, the issue of standard of review arises and in that regard, recent jurisprudence of the Supreme Court of Canada provides guidance. Finally, the substantive issue on this application is that just described and urged on behalf of the Applicant and Nunavut Tunngavik Incorporated: whether the Minister, in arriving at the allocation under review, met his obligation to give special consideration to the principles of adjacency and economic dependence of communities in the Nunavut Settlement Area and further, whether his decision was reasonably open to him in light of his alleged commitments regarding ensuring to residents of the Nunavut Settlement Area a "major share" in the resources of the waters adjacent to Nunavut.
ANALYSIS
a) Status of the Attorney General of the Nunavut Territory to bring this Application
[33] Subsection 18.1(1) of the Federal Courts Act[12] reads as follows:
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. [emphasis added]
18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l'objet de la demande. [je souligne]
[34] Since the Applicant in this matter is clearly not the Attorney General of Canada, this issue can be restated in the following terms: Is the Attorney General of the Nunavut Territory "...anyone directly affected ..." by the quota allocation decision here at issue? If not, can the Attorney General of the Nunavut Territory establish that he has "public interest standing"?
i) Person directly affected
[35] I am satisfied that the Government of Nunavut, as represented by the Attorney General of the Nunavut Territory, is not a person directly affected by the decision under review within the meaning of subsection 18.1(1) of the Federal Court Act. In Ward v. Canada (Attorney General)[13], the Chief Justice, for the Court, wrote at paragraph [13]:
The federal and provincial division of powers is set out in ss. 91 and 92 of the Constitution Act, 1867. Section 91 grants exclusive legislative authority to the Parliament of Canada for all matters in relation to sea coast and inland fisheries (s. 91(12)), ... . Section 92 specifies that the legislature in each province may exclusively make laws in relation to property and civil rights in the province (s. 92(13)).
The Chief Justice continued at paragraphs [38], [39] and [41]:
... in Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), ...Major J. noted that the Minister's duty under the Fisheries Act extends beyond conservation to management and development of the fishery for the benefit of the public, stating ...:
Canada's fisheries are a "common property resource", belonging to all people of Canada. Under the Fisheries Act, it is the Minister's duty to manage, conserve and develop the fishery on behalf of Canadians in the public interest ... .
In Gulf Trollers Assn. v. Canada (Minister of Fisheries and Oceans), ..., the Federal Court of Appeal directly confronted whether the federal fisheries power is confined to conservation of the fish stock. At issue were federal regulations for closing times that favoured sports fishers over commercial fishers. At trial, Collier J. held that the fisheries power did not extend to the general management and control of the fisheries for the benefit of Canadians beyond mere protection and preservation of the resource. The Federal Court of Appeal reversed the decision. Marceau J.A. expressed the view that "Parliament may manage the fishery on social, economic or other grounds, either in conjunction with steps taken to conserve, protect, harvest the reserve [resource] or simply to carry out social, cultural and economic goals and policies ..." .
These cases put beyond doubt that the fisheries power includes not only conservation and protection, but also the general "regulation" of the fisheries, including their management and control. They recognize that "fisheries" under s. 91(12) of the Constitution Act, 1867 refers to the fisheries as a resource; "a source of national or provincial wealth" ...; a "common property resource" to be managed for the good of all Canadians ... . The fisheries resource includes the animals that inhabit the seas. But it also embraces commercial and economic interests, aboriginal rights and interests, and the public interest in sport and recreation.
[citations omitted]
[36] The Chief Justice goes on to note that, although the fisheries power is broad, it is not unlimited. She contrasts that power with the provinces' equally broad power over property and civil rights.
[37] The Nunavut Act[14] enumerates the legislative powers of the Legislature of Nunavut in subsection 23(1). That section contains no reference to fisheries. This silence is to be contrasted with the specific reference in that subsection to "agriculture in Nunavut" and "the preservation of game in Nunavut". Subsection 23(2) very specifically restricts the powers of the Legislature of Nunavut in the following terms:
23.(2) Nothing in subsection (1) shall be construed as giving the Legislature greater powers with respect to any class of subjects described in that section than are given to the legislatures of the provinces by sections 92 and 95 of the Constitution Act, 1867 with respect to similar subjects described in those sections.
23.(2) Le paragraphe (1) n'a pas pour effet de conférer à la législature des pouvoirs plus étendus, à l'égard des divers domaines qui y sont énumérés, que ceux qu'attribuent aux législatures provinciales les articles 92 et 95 de la Loi constitutionnelle de 1867 dans des domaines similaires.
[38] The foregoing is not to say that the powers of the Minister to issue leases and licences under section 7 of the Fisheries Act and to allocate quotas as a condition of licence under paragraph 22(1)(a) of the Fisheries (General) Regulations[15] is absolute. In Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans)[16], the Court wrote at paragraph [16] which is repeated here for ease of reference:
As previously mentioned, the Agreement [the Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada] puts in place a regime for the co-ordinated management and harvesting of the wildlife in and around the NSA [the Nunavut Settlement Area]. While the final decision with respect to this matter rests with the Minister, it is clear that the Agreement imposes upon the Minister both procedural and substantive requirements which affect the manner in which the decision-making process, including the ministerial discretion to fix fishing quotas, is to be exercised. In our view, the Minister's discretion in section 7 of the Fisheries Act is no longer absolute when the exercise of that discretion affects the wildlife and marine areas of the NSA and the wildlife management in Zones I and II.
[39] I am satisfied that the same must be said with respect of the Minister's authority to fix quotas as a condition of licence.
[40] For the foregoing reasons, I am satisfied that the legislative authority of the Nunavut Territory is in no sense in conflict with the authority of the Minister to issue fishery licences and to fix quotas as a condition thereof. Put another way, I am satisfied that the Minister's relevant authority is in no way qualified in this regard by legislative authority of the Nunavut Territory.
[41] Further, I am satisfied that no other interest of the Applicant is directly affected by the decision here under review. There is no evidence before the Court that the Government of Nunavut holds all or any interest in a Northern shrimp fishery licence that authorizes fishing in SFA 1.
ii) Public interest standing
[42] In Canadian Council of Churches v. Canada (Minister of Employment and Immigration)[17], Justice Cory, for the Court, wrote at page 253:
It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the Court?
[43] The simple answer with respect to the tripartite test enunciated by Justice Cory is that in this matter, there is no legislation before the Court the validity of which is at issue. If, however, the act of the Minister in allocating quota were read as tantamount to a legislative act, and I am satisfied that it should be so read, then Justice Cory's first question must be answered in the affirmative. I am further satisfied that there is indeed a justiciable and serious issue as to the validity of the Minister's quota allocation.
[44] The second question is somewhat more difficult. There is no question but that the Government of Nunavut is affected by the quota allocation and has a genuine interest in its validity. That being said, it can be argued, I am satisfied with some force, that the effect on the Government of Nunavut is indirect rather than direct. There was no evidence before me that the Government of Nunavut is a licence holder. Further, as will be seen in what follows, there is another body that was created to oversee the implementation of the Agreement and it is the consistency of the Minister's quota allocation decision with the terms of the Agreement that is the central issue in this matter. Based on the foregoing, I conclude that the Attorney General of Nunavut, acting on behalf of the Government of Nunavut, is not "directly affected" by the validity of the quota allocation that is at issue.
[45] Finally, I am satisfied that there is another "reasonable and effective way" to bring the Minister's quota allocation decision that is at the heart of this application for judicial review before this Court. In Nunavut Tunngavik Inc. v. Canada (Attorney General)[18], my colleague Justice O'Reilly wrote at paragraph [1]:
Nunavut Tunngavik Incorporated was created in 1993 to oversee implementation of the Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada.
Nunavut Tunngavik Incorporated is specifically referred to in the Agreement[19]. The following definition appears in Article I:
Tungavik [sic] means the corporation without share capital incorporated under the Canada Corporations Act by letters patent dated April 3, 1990 and supplementary letters patent dated December 16, 1992 and named the Tungavik _[sic] Incorporated, or any successor;
In the same Article, Nunavut Tunngavik Incorporated, as a successor organization, is defined to be a "Designated Inuit Organization". Article 39 of the Agreement dealing with "Inuit Organizations" applies to Nunavut Tunngavik Incorporated and certain other organizations. That being said, I find nothing on the face of the Agreement that supports the proposition that Nunavut Tunngavik Incorporated was created to oversee ongoing implementation of the Agreement. That it is in fact vested with that function is supported by Nunavut Tunngavik Incorporated's website[20]. A "Backgrounder" that is part of that website provides in part:
Principally, Nunavut Tunngavik Incorporated (NTI) is responsible for ensuring that the 1993 Nunavut Land Claims Agreement (NLCA) continues to be implemented in accordance with the provisions of the Agreement. Article 4 of the NCLA, dealing with Nunavut political development, mandates NTI, the successor to the Tunngavik Federation of Nunavut (TFN), to negotiate a political accord to deal with the establishment of Nunavut. The process took two decades.
[46] The By-Laws of Nunavut Tunngavik Incorporated, as disclosed on its website, support the ongoing role of Nunavut Tunngavik Incorporated that is cited in the foregoing quotation. Similarly, the ongoing role of Nunavut Tunngavik Incorporated in ensuring the Agreement continues to be implemented in accordance with its terms is supported by four (4) matters which have come before this Court, two dealing directly with fishery quota allocations that arose and were dealt with before the creation of the Territory of Nunavut with its own Territorial Government and two of which were dealt with by this Court following the creation of the Nunavut Territorial Government. The two fishery quota allocation cases are cited earlier in these reasons as is the decision of my colleague Justice O'Reilly. The fourth matter is Nunavut Tunngavik Inc. v. Canada (Attorney General) et al[21]. Reasons for decision in those matters, two of which went to the Federal Court of Appeal or its predecessor, disclose no challenge to the mandate of Nunavut Tunngavik Incorporated to bring them before this Court.
[47] In concluding on this issue, I am satisfied that the answer to the third question posed by Justice Cory and referred to above is that there is indeed another reasonable and effective way to bring the validity of the Minister's quota allocation that is here under review before this Court, that is to say, by judicial review application instituted by Nunavut Tunngavik Incorporated.
In the result, I am further satisfied that the Applicant lacks standing to initiate this application for judicial review. Notwithstanding this conclusion, in what I consider to be the interest of judicial economy, I will nonetheless go on to deal with the other issues on this application which were fully argued before me. I am satisfied that in doing so, I am acting in a manner that is consistent with the discretion remaining with me as enunciated in the reasons of Sopinka J. in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner)[22].
b) Mootness
[48] As earlier noted, the Northern shrimp quota allocation decision that is here under review was published in a press release dated the 26th of May, 2003. It related to the 2003 Northern shrimp fishery season. The application for judicial review itself was instituted by application dated the 25th of June, 2003. The hearing of the application for judicial review did not take place until early December, 2004, long after the 2003 Northern shrimp fishery season was closed. Quota allocation for the 2004 Northern shrimp fishery season was not before the Court. In the circumstances, the issue of mootness was raised during the hearing although it was not pursued with any particular vigour.
[49] In Borowski v. Canada (Attorney General of Canada)[23], Justice Sopinka, for the Court, wrote at page 353:
The approach in recent cases [ to mootness] involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.
[50] While I am satisfied that the issue of Northern shrimp quota allocation in SFA 1 for 2003 no longer presented a "live controversy" at the date of hearing of this matter, I am equally satisfied that the series of fishery quota allocation cases in this Court and the Federal Court of Appeal, of which this is the third in this Court and of which the earlier two have gone to the Court of Appeal or its predecessor, demonstrates that there remains a "live controversy" among the parties to this application for judicial review regarding the interpretation of Article 15.3.7 of the Agreement, earlier quoted but repeated here for convenience:
Government recognizes the importance of the principles of adjacency and economic dependence of communities in the Nunavut Settlement Area on marine resources, and shall give special consideration to these factors when allocating commercial fishing licences within Zones I and II. Adjacency means adjacent to or within a reasonable geographic distance of the zone in question. The principles will be applied in such a way as to promote a fair distribution of licences between the residents of the Nunavut Settlement Area and the other residents of Canada and in a manner consistent with Canada's interjurisdictional obligations[24].
[51] The foregoing clause has earlier been interpreted as applying to the allocation of quota as well as to the allocation of commercial fishing licences. The Attorney General of Canada, on behalf of the Minister, urges that the allocation of quota here at issue respects the principles of adjacency and economic dependence and is consistent with the promotion of a fair distribution of quota between residents of the Nunavut Settlement Area and other residents of Canada in a manner consistent with Canada's interjurisdictional obligations. The Applicant and Nunavut Tunngavik Incorporated strongly disagree. Notwithstanding earlier jurisprudence, this "live controversy" continues. In the circumstances, I am satisfied that a "live controversy" continues to exist among the parties on the facts of this matter. Put another way, the issue has not become academic. In the result, I am satisfied that the core issue on this application for judicial review is not "moot", in the sense that it has not become academic. In the further result, I am satisfied that it is in the public interest that the substance of this application for judicial review be determined.
c) Standard of Review
[52] In Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans)[25], under the heading "The principles applicable to the judicial review of the exercise of ministerial discretion", the Appeal Division Federal Court of Canada examined at some length those principles. For ease of reference, paragraphs [13] to [19] of the Court's reasons are reproduced in Annex III.
[53] The Court's summary conclusion in paragraph [19] is repeated here, without citations, for ease of reference:
In other words, the Court in judicial review proceedings is concerned with the legality of the ministerial decision resulting from an exercise of discretion, not its opportunity, wisdom or soundness ... . This means, in this case, that the reviewing court ought to look at the manner in which the Minister exercised his discretion to determine whether the Minister acted in bad faith or on the basis of irrelevant factors, failed to take into account relevant factors or ignored relevant provisions which conditioned or limited the exercise of his otherwise absolute discretion ... .
[54] I am satisfied that the foregoing holds true when the standard of review on this application is derived by the application of a pragmatic and functional analysis as mandated by the Supreme Court of Canada in decisions such as Dr. Q. v. College of Physicians and Surgeons of British Columbia[26]. In effect, the foregoing equates to a standard of review of "patent unreasonableness", in the current terminology on standard of review.[27]
d) The Substantive Issues
[55] Counsel for the Applicant describes the substantive issues before the Court in the following terms in his Memorandum of Fact and Law:
(b) (1) Did the Minister of fisheries and Ocean [sic] give the required consideration to the principles of the adjacency an [sic] economic dependence required by the NLCA?
(2) Did the Minister of Fisheries and Oceans apply the principles of adjacency and economic dependence in such a way as to promote a fair allocation of quota?
(c) (1) Did the Minister of Fisheries and Oceans misconstrue the recommendation of the IPAC and thereby misapply the same?
(2) Is the decision of the Minister of Fisheries and Ocean [sic] inconsistent with the Intergraded Management Plan 2003?
[56] As indicated earlier in these reasons, counsel for Nunavut Tunngavik Incorporated encapsulated the substantive issues in two brief paragraphs in the following terms:
Issue 1
In the course of making his decision on the allocation of shrimp quota in SFA 1, did the Minister give special consideration to the principle of adjacency and to the economic dependence of communities in the Nunavut Settlement Area on marine resources as required by Article 15.3.7 of the Nunavut Land Claims Agreement?
Issue 2
If the Minister did give special consideration to the factors in Article 15.3.7, was the allocation made by the Minister in SFA 1 equitable in light of his commitment that no new access would be granted to non-Nunavut fishers until Nunavut fishers had obtained the major share of the resource adjacent to Nunavut?
I adopt the statement of issues as enunciated by counsel for Nunavut Tunngavik Incorporated.
i) Special Consideration to the Principles of Adjacency and Economic Dependence
[57] Counsel for both the Applicant and Nunavut Tunngavik Incorporated relied heavily on a "Memorandum for the Minister" dated the 9th of April, 2003 that was acknowledged to be the only document before the Minister when he arrived at the quota allocation decision that is under review.[28] That Memorandum, which recommended the quota allocations announced in connection with the decision under review, appears to have been signed by the Minister on the 26th of May, 2003 over a signature block that indicates "I concur". The Memorandum speaks at length to industry consultations that were conducted in arriving at the recommendations, and to "Provincial Positions", presumably determined through consultations. With respect to Nunavut, included under the heading "Provincial Positions", the following paragraph appears:
Nunavut continues to highlight the importance of the IPAC recommendations, and have [sic] emphasized their claim to a majority share of the resource in adjacent waters. They are requesting 100% of the SFA 1 quota increase (2,127t), 100% of last year's NAFO recommended SFA 1 increase (2,690t) and an additional 1,850t presently allocated to existing licence holders for a total of 6,667t. They are [sic] also requesting reallocation of the SFA 0 quota of 500t to Nunavut.[29]
[58] While the foregoing does not make specific reference to paragraph 15.3.7 of the Agreement, I am satisfied that, implicitly, it reflects Nunavut's concern that special consideration should be given to the principles of adjacency and the economic dependence of communities in the Nunavut Settlement Area on marine resources, as required by Article 15.3.7 and reflects Nunavut's commitment to obtaining a "major share" of the Northern shrimp fishery resource in areas adjacent to Baffin Island. Assuming that the Minister was not unaware of Nunavut's basis for its claim to special treatment in respect of the Northern shrimp fishery resource of SFA 1, a position that counsel for the Attorney General for Canada suggests I should acknowledge, counsel urges that the foregoing paragraph speaks for itself.
[59] The Memorandum that was before the Minister then goes on to describe optional decisions available to the Minister. In respect of one of those options, relating to SFA 1, the Memorandum notes:
• The total TAC increase for SFA 1 is 2,127t.
• The existing Nunavut Land Claims Agreement states that the Government shall seek the advice of the Nunavut Wildlife Management Board (NWMB) with respect to any decisions in Zones I and II, which would affect the substance and value of Inuit harvesting rights and opportunities within the marine areas of the Nunavut Settlement Area (NSA).
• Nunavut has claimed that there should be no allocations of shrimp in waters adjacent to Nunavut until Nunavut has reached a major share. Therefore, they are requesting that the full TAC increase in SFA I (allowing for Nunavik's claim), should be allocated to them.
• In your response to the IPAC you stated that the Nunavut share of the northern shrimp quota in its adjacent waters is 25%..., which does not represent a major share. You also confirmed that "no additional access will be granted to non-Nunavut interests in waters adjacent to Nunavut until the territory has achieved access to a major share of these resources." Accordingly, no new licences will be issued to non-Nunavut interests until this target is met. You went on to state that "fulfillment [sic] of this recommendation will not affect the current status of other participants in these fisheries."
• In keeping with this response, and given that no new licences are recommended for SFA's adjacent to Nunavut in 2003, Nunavut should maintain at least their [sic] current interests in waters adjacent to its shore, if not receive an increase to facilitate the acquisition of a major share.
...
[60] More will be said about IPAC (the Independent Panel on Access Policy) and its recommendations in the paragraphs that follow. Suffice it to say for the moment that IPAC, as reflected in its name and as carefully identified in the foregoing quoted paragraphs, was mandated to deal with the issue of "access", not with the issue of "allocation" among those already having access, through a licence or licences, to a particular fishery resource.
[61] After briefly analysing the options that were presented to the Minister, the Memorandum that was before the Minister, concluded with a heading "Recommendations/Next Steps" under which the following appears:
I recommend that you approve and announce the following management measures for the northern shrimp fishery:
....
• Allocation of the quota increases as provided under Option 2 and allow for increased Aboriginal participation, the creation of a scientific research quota to be allocated pending a working group discussion, and continuing with current sharing arrangements between the inshore and offshore for the remainder of the allocations in each SFA. The sharing arrangements within the inshore sector are addressed in part D of this recommendation.
• Specifically, quota increases in each SFA would be as follows:
» SFA 1 - allocate 187t to Makivik to ensure compliance with the Nunavik AIP, 1,000t to Nunavut in line with our commitment to ensure they acquire a major share of the resource in waters adjacent to their shores, and the remaining 940t to existing offshore licence holders who have been instrumental in developing this fishery.
...
The Minister adopted and announced the foregoing recommendation in the decision under review.
[62] Counsel for the Applicant and for Nunavut Tunngavik Incorporated further relied on the report of the Independent Panel on Access Policy and the Minister's response to that report. The report[30], under the heading "Introduction", described its mandate and distinguished between "access" and "allocation" in the following terms:
The Minister gave IPAC the mandate of recommending a solution to the following problem:
The current criteria that govern decision-making when providing access to new or additional entrants in a commercial fishery that has undergone substantial increase in resource abundance or landed value, or in a new or emerging fishery ..., remain poorly defined. Furthermore, the relative ranking or weight of each criterion in the decision-making process is largely unknown and the process for making these decisions is unclear.
The AFPR discussion document, The Management of Fisheries on Canada's Atlantic Coast, defines access as follows:
the opportunity to harvest or use the fisheries resource, generally permitted by licences or leases issued by DFO [Department of Fisheries and Oceans] under the authority of the Minister of Fisheries and Oceans. Opportunities are affected by the requirement of DFO to take into account Aboriginal and treaty rights to fish when providing those opportunities.
It distinguishes between access and allocation, defined as:
the amount on share of the fisheries resource or allowable catch that is distributed or assigned by the Minister of Fisheries and Oceans to those permitted to harvest the resource.
IPAC intepreted its mandate to mean that it must examine criteria for granting access to two types of fisheries: (I) new, or emerging, fisheries hitherto not subject to commercial exploitation, and (ii) established (commercial) fisheries experiencing a substantial increase in resource abundance and/or landed value.
[63] Further on in the Introduction to its report, IPAC noted that it was "not" to address "...issues pertaining to allocation of harvests: it is to concern itself solely with matters of access."
[64] In its recommendations, IPAC identified three (3) overarching principles for the granting of access, which principles it noted reflect "...fundamental social values and constitutional norms that underpin the Atlantic fishery...". The three principles that it identified are the following: first, conservation of the resource, second, recognition of Aboriginal and treaty rights; and third, equity. Against those overarching principles, it identified three criteria for granting access as follows, ranked in IPAC's perception of their order of importance: first, adjacency; second, historic dependence; and third, economic viability. It is to be noted that the first two of these "traditional criteria" are precisely those identified in Article 15.3.7 of the Agreement. I would go further and note that there appears to the Court to be a close link between the criteria of historic dependence and economic viability.
[65] Following a finding that "...Nunavut does not enjoy the same level of access to its adjacent fisheries as do the Atlantic provinces", IPAC made the following specific recommendation:
In keeping with the spirit of the Nunavut Land Claims Agreement, and the fair and consistent application of the adjacency principle, the Panel therefore recommends that :
No additional access should be granted to non-Nunavut interests in waters adjacent to Nunavut until the territory has achieved access to a major share of its adjacent fishery resources. [emphasis added]
[66] In his response to the IPAC report[31], the Minister specifically accepted the foregoing recommendation relating particularly to no additional access to non-Nunavut interests in waters adjacent to Nunavut until the territory has achieved access to the major share of those resources, subject to Aboriginal and treat rights.
[67] In its response to IPAC[32], the Government of Nunavut expressed its pleasure with the report but noted: "However, the IPAC makes a number of inferences to allocation issues particularly recommendation #6 of the report [the recommendation particularly related to Nunavut] which is both access and allocation focussed." The Court finds it not in the least surprising that the Government of Nunavut would adopt the foregoing position and is sympathetic to Nunavut's position, but by analogy only. That being said, the Court concludes that the Government of Nunavut's position that the recommendation of IPAC related to Nunavut is "...both access and allocation focussed", is simply not sustainable. The Court finds that IPAC in its report, was very careful in its use of language and understood its mandate to be solely related to the question of access, and not to the question of allocation. However reasonable it might be to extend its specific recommendation relating to Nunavut to allocation, particularly in the light of Article 15.3.7 of the Agreement, I am satisfied that such an extension of its recommendation, and by further extension, of the endorsement of the IPAC report by the Minister, is unwarranted.
[68] The issue then comes down to the reality that the Memorandum that was before the Minister when he arrived at the decision under review made no specific reference to the constitutionalized obligation of the Government of Canada under Article 15.3.7 of the Agreement. This notwithstanding, the Court finds that the spirit of that Article permeated the Memorandum that was before the Minister and largely underlay the recommendation made to him with respect to the allocation of Northern shrimp fishery quota with respect to SFA 1.
[69] In Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans)[33], Justice Evans, for the Court, wrote at paragraphs [4]:
Since the appellant's quota in the turbot fishery has increased over the years, both absolutely and relatively, it cannot be said that the Minister had no regard to the adjacency and economic dependency principles.
[70] I am satisfied that precisely the same could be said on the facts on this matter in relation to the Northern shrimp allocation in SFA 1 to Nunavut interests. Further, it is beyond question that the share of Nunavut interests in the 2003 increase of quota allocation was significantly higher than that of other interests in the same fishery. Against the words of Article 15.3.7 of the Agreement, it cannot be said that "special consideration" was not given to the principles of "...adjacency and economic dependence in the Nunavut Settlement Area on marine resources...", particularly when the Minister was required to apply those principles "...in such a way as to promote a fair distribution of [quota] between the residents of the Nunavut Settlement Area and the other residents of Canada ...in a manner consistent with Canada's interjurisdictional obligations." The special allocation made to Nunavut interests clearly was not "special enough" in the eyes of the Government of Nunavut and in the eyes of Nunavut Tunngavik Incorporated. It is not difficult for the Court to be sympathetic to that position, but that, of itself, is no grounds to set aside the decision under review. Against the standard of judicial review that is here appropriate, I am satisfied that the decision under review must stand. It cannot be said to be patently unreasonable. Put another way, it was open to the Minister, taking into account all of the competing interests that were before him.
(ii) Was the decision equitable in the light of the Minister's commitment that no new access would be granted to non-Nunavut fishers until Nunavut fishers had obtained the major share of the resource adjacent to Nunavut?
[71] I am satisfied that the decision under review, which was simply not an access decision but rather a quota allocation decision, was equitable in all respects. It took into account, not only the constitutionalized principles in Article 15.3.7 of the Agreement, but also the interests of all other stakeholders in the Northern shrimp fishery in SFA 1. The concept of "major share" is not at all specific. Whatever a "major share" might be, Nunavut interests, assuming they have not yet achieved a major share, moved closer to it through the allocation in question albeit that the pace of "moving closer" may not be satisfactory to Nunavut interests. Article 15.3.7 of the Agreement provides no time frame for the achievement of that objective. On the contrary, it contemplates achievement of any such objective in a manner that not only respects the interests of the Inuit of Nunavut, but also the interests of others with an historically entrenched place in the fishery, as well as Nunavik interests. In the result, I conclude that the Applicant and Nunavut Tunngavik Incorporated cannot succeed on the basis of equity, or lack thereof, in the decision under review.
CONCLUSION
[72] Based on the foregoing analysis, this application for judicial review will be dismissed.
COSTS
[73] On the face of his application record, the Attorney General of Canada does not seek costs. In open Court, counsel for the Attorney General of Canada indicated that he was not pressing on the issue of costs on behalf of his client. Certainly the Attorney General of Canada bore the major burden in responding on this application for judicial review. Other Respondents who supported the decision under review played a relatively lesser role and are not, I am satisfied, entitled to costs against the Attorney General of Nunavut or his major support on this application for judicial review, Nunavut Tunngavik Incorporated. As costs would normally follow the event in a matter such as this, I am satisfied that neither the Attorney General of Nunavut not Nunavut Tunngavik Incorporated is entitled to costs.
[74] In the result, there will be no order as to costs.
"Frederick E. Gibson"
__________________________________
F.C.J.
Ottawa, Ontario
March 8, 2005
|
|
|
|
Annex III
¶ 13 The Minister possesses absolute discretion under subsection 7(1) of the Fisheries Act, R.S.C. 1985, c. F-14, to issue or authorize to be issued leases and licences for fisheries or fishing. The rationale for such discretion is that Canada's fisheries are a common property resource belonging to all the people of Canada and licensing is a tool to manage fisheries which is given to the Minister whose duty it is to manage, conserve and develop that resource in the public interest (see Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12, at pages 25-26).
¶ 14 The actual exercise of such discretionary power is influenced by numerous fluctuating policy concerns which go beyond the necessary issue of conservation and protection of fish to include cultural, political, scientific, technical and socio-economic considerations or policies (see Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), supra, at page 30; Gulf Trollers Assn. v. Canada (Minister of Fisheries and Oceans),[1987] 2 F.C. 93 (C.A.), leave to appeal to the Supreme Court of Canada refused on March 24, 1987, [1987] 1 S.C.R. viii; MacKinnon v. Canada (Fisheries and Oceans), [1987] 1 F.C. 490 (T.D.), at page 496; Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102 (T.D.), at page 131). Also of relevance to the exercise of such discretion are any international policies that Canada promotes or adheres to as well as any legislative obligation that the Government may have assumed which bears directly on the issue of fishery and fetters either the Minister's discretion itself or the manner in which his discretion is to be exercised.
¶ 15 In our view, the Agreement between the Government and the Nunavut Inuit is one such obligation. The Agreement was implemented legislatively by the Nunavut Land Claims Agreement Act, S.C. 1993, c. 29 and subsection 6(1) of the Act, in case of inconsistency or conflict between the Agreement and any federal law, gives paramountcy to the Agreement to the extent of the inconsistency or conflict (see also, to the same effect, Section 2.2.3 of the Agreement).
¶ 16 As previously mentioned, the Agreement puts in place a regime for the co-ordinated management and harvesting of the wildlife in and around the NSA. While the final decision with respect to this matter rests with the Minister, it is clear that the Agreement imposes upon the Minister both procedural and substantive requirements which affect the manner in which the decision-making process, including the ministerial discretion to fix fishing quotas, is to be exercised. In our view, the Minister's discretion in section 7 of the Fisheries Act is no longer absolute when the exercise of that discretion affects the wildlife and the marine areas of the NSA and the wildlife management in Zones I and II.
¶ 17 Under the Agreement, the level of constraints imposed upon the Minister varies with the area where the ministerial decision is to take effect. Within the NSA, the NWMB is the main instrument of wildlife management and it has the primary responsibility of establishing, modifying or removing levels of total allowable harvest or harvesting of wildlife (see Sections 5.6.16 and 5.2.33 of the Agreement). In Zones I and II which are outside the NSA, both the primary and overall responsibilities over wildlife management are given to the Government but subject to some conditions and requirements, to be discussed later, which recognize the need for Inuit involvement in aspects of Arctic marine management (see Sections 15.1.1(g), 15.3.1, 15.3.4, 15.3.7 and 15.4.1 of the Agreement).
¶ 18 Having said that and reviewed the context in which the present exercise of ministerial discretion ought to be analysed, it bears repeating that the function of the Court in judicial review proceedings is not to "second guess" the Minister in his appreciation of the public needs and interest when fixing the fishing quotas and, then acting in his stead, proceed to substitute its views for that of the Minister. Parliament and the Governor in Council intended the Minister to enjoy in the exercise of his function and duty to establish and implement fishing quotas in the public interest "the widest possible freedom to manoeuvre" (see Carpenter Fishing Corp. v. Canada, [1998] 2 F.C. 548 (C.A.); Barron v. Minister of National Revenue, [1997] 2 C.T.C. 198 (F.C.A.)). "It is not the role of the Court . . . to become an academy of science to arbitrate conflicting scientific predictions, or to act as a kind of legislative upper chamber to weigh expressions of public concern and determine which ones should be respected" (see Vancouver Island Peace Society v. Canada, [1992] 3 F.C. 42 (T.D.), at page 51, per Strayer J.).
¶ 19 In other words, the Court in judicial review proceedings is concerned with the legality of the ministerial decision resulting from an exercise of discretion, not its opportunity, wisdom or soundness (see Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247 (C.A.), at page 260). This means, in this case, that the reviewing court ought to look at the manner in which the Minister exercised his discretion to determine whether the Minister acted in bad faith or on the basis of irrelevant factors, failed to take into account relevant factors or ignored relevant provisions which conditioned or limited the exercise of his otherwise absolute discretion (see Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pages 7-8; Canada (Attorney General) v. Purcell, [1996] 1 F.C. 644 (C.A.), at page 653; Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.), at page 240). [emphasis added]
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1070-03
STYLE OF CAUSE: Attorney General of the Nunavut Territory v.
The Attorney General of Canada
PLACE OF HEARING: Iqaluit, Nunavut
DATE OF HEARING: December 6-7, 2004
REASONS FOR
AND ORDER OF : Gibson, J.
DATED: March 8, 2005
APPEARANCES:
Mr. Calvin Clark For Applicant
Mr. Brian Evernden For Respondent, Attorney General of Canada
Mr. Richard Southcott For Respondent, Atlantic Shrimp Company and other members of the Canadian Association of Prawn Producers
Mr. Norman Whalen For Respondent, Labrador Fishermen's Union Shrimp
Co. Ltd.
Ms. Sylvie Molgat For Respondents, Makivik Corporation, Qikiqtaaluk
Corporation and Unaaq Fisheries Inc.
Mr. Dougald Brown For Respondent, Nunavut Tunngavik Inc.
SOLICITORS OF RECORD:
Department of Justice For Applicant
Government of Nunavut
Territory
Iqaluit, Nunavut
John H. Sims, Q.C., For Respondent, Attorney General of Canada
Deputy Attorney General of
Canada
Ottawa, Ontario
Stewart McKelvey For Respondent, Atlantic Shrimp Company
Stirling Scales
Halifax, Nova Scotia
Martin, Whalen, For Respondent, Labrador Fishermen's Union Shrimp Hennebury & Stamp Co. Ltd.
St. John's, Newfoundland and
Labrador
Dubuc-Osland For Respondents, Makivik Corporation, Qikiqtaaluk
Ottawa, Ontario Corporation and Unaaq Fisheries Inc.
Nelligan O'Brien Payne For Respondent, Nunavut Tunngavik Inc.
Ottawa, Ontario
[1] Applicant's Record, Tab 11, page 78.
[2] Applicant's Record, Tab 11, page 80.
[3] From: online www.nafo.ca, (Official NAFO website).
[4] Applicant's Record, Tab 9.
[5] Applicants' Record, Tab 2, page 16.
[6] Definition of "shrimp", The Shorter Oxford English Dictionary, 3rd ed., as reprinted in 1990, Clarendon Press, Oxford.
[7] R.S. 1985, c. F-14.
[8] R.S. 1985,c. C-33.
[9] Ratified, given effect and declared valid by subsection 4(1) of the Nunavut Land Claims Agreement Act, S.C. 1993, c. 29.
[10] See: Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) (1997), 134 F.T.R. 246; affirmed [1998] 4 F.C. 405 (F.C.A.); and Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) (1999), 176 F.T.R. 44; affirmed, (2000), 262 N.R. 219 (F.C.A.), leave to appeal refused 18th of October, 2001.
[11] Application Record of Nunavut Tunngavik Incorporated, Volume III, Tab A1, page 136.
[12] R.S.C. 1985, c. F-7.
[13] [2002] 1 S.C.R. 569.
[14] S.C. 1993, c. 28.
[15] P.C. 1993 - 186.
[16] [1998] 4 F.C. 405 (F.C.A.).
[17] [1992] 1 S.C.R. 236.
[18] (2004), 245 F.T.R. 42.
[19] Supra, note 11.
[20] See: http://www.tunngavik.com/site-eng./engmain.htlm (Not cited before me).
[21] (2003), 235 F.T.R. 97.
[22] [1990] 2 S.C.R. 367 at page 400.
[23] [1989] 1 S.C.R. 342.
[24] Supra, note 11.
[25] Supra, note 16.
[26] [2003] 1 S.C.R. 226.
[27] For authority binding on me and to the same effect, see: Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) (2000), 262 N.R. 219 (F.C.A.) at paragraph [4].
[28] Application Record of the Respondent, the Attorney General of Canada, Volume I, pages 184 to 196.
[29] Application Record of the Respondent, the Attorney General of Canada, Volume I, page 187.
[30] Applicant's Application Record, Volume III, Tab 10.
[31] Applicant's Application Record, Volume III, Tab 11.
[32] Applicant's Application Record, Volume III, Tab 12.
[33] (2000), 262 N.R. 219 (F.C.A.).