Date: 20031218
Docket: A-82-03
Citation: 2003 FCA 484
NOËL J.A.
MALONE J.A.
BETWEEN:
CHIEF PERCY WILLIAMS ON HIS OWN BEHALF AND ON BEHALF OF
ALL OTHERS MEMBERS OF THE KWICKSUTAINEUK/AH-KWA-MISH TRIBES
Appellant
and
THE MINISTER OF FISHERIES AND OCEANS AND HERITAGE SALMON LTD.
Respondents
Heard at Edmonton, Alberta, on December 18, 2003.
Judgment delivered from the Bench at Edmonton, Alberta, on December 18, 2003.
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
MALONE J.A.
Date: 20031218
Docket: A-82-03
Citation: 2003 FCA 484
CORAM: ROTHSTEIN J.A.
NOËL J.A.
MALONE J.A.
BETWEEN:
CHIEF PERCY WILLIAMS ON HIS OWN BEHALF AND ON BEHALF OF
ALL OTHERS MEMBERS OF THE KWICKSUTAINEUK/AH-KWA-MISH TRIBES
Appellant
and
THE MINISTER OF FISHERIES AND OCEANS AND HERITAGE SALMON LTD.
Respondents
REASONS FOR JUDGMENT
(Delivered from the Bench, at Edmonton, Alberta, on December 18, 2003).
[1] This is an appeal from a decision of Rouleau J. ([2003] F.C.J. No. 98) dismissing the judicial review application which had been brought by the appellant, Chief Percy Williams on the ground that he, and the other members of the tribes which he represents, did not have the required standing to pursue the application.
[2] The application challenged the decision of the respondent, the Minister of Fisheries and Oceans (the Minister), to issue a Marine Predator Control License (the licence) to Heritage Salmon Limited (Heritage) under the Fisheries Act, R.S.C. 1995, c. F-14 (the Act). The license authorized Heritage to kill seals with firearms in order to protect its aquaculture site on Birdwood Island. After a full hearing on the issue of standing and on the substantive issue raised in support of the judicial review application, Rouleau J. found that the appellant lacked both direct interest standing and public interest standing to pursue the application.
[3] With respect to public interest standing, the Motions Judge concluded that the argument raised by the appellant in support of the judicial review application, (i.e., that "fishing" as defined under the Act must involve an intention to "harvest, use or exploit" the catch), did not disclose a "fairly arguable case" or a "reasonable cause of action". Having found that the appellant did not have standing, the Motions Judge proceeded to dismiss the application.
[4] Both the appellant and the respondents now take the position that standing is no longer an issue. They do so with the view of having this Court dispose of the merits of the judicial review application. They submit that the underlying question is ripe for decision even though it is not, strictly speaking, the subject matter of the judgment under appeal.
[5] The request is fair and proper. The Motions Judge had before him both the factual record against which to dispose of the judicial review and the full argument of the parties. The only reason he did not dismiss the application on its merits is because the appellant had failed to meet the less onerous threshold of demonstrating a reasonable cause of action or a fairly arguable case. In so holding, the Motions Judge was obviously of the view that the appellant's argument as to the meaning of "fishing" under the Act was without foundation.
[6] The relevant facts are set out in full in the decision under appeal and need not be repeated. There is no issue that a fishing licence can extend to mammals and that killing seals by way of firearms can constitute "fishing" within the meaning of the Act. The only question is whether the word "fishing", as defined under the Act, must involve an intention to "harvest, use or exploit" any fish caught as the appellant contends.
[7] In support of this argument, the appellant asks this Court to consider the following three questions:
1. What is the proper interpretation of the term "fishing"?
2. Should we consider the common law definition of the term "fishery" to interpret the term "fishing"?
3. Does the appellant's activity involve the "destruction" of fish "by any means other than fishing" pursuant to section 32 of the Fisheries Act? [If so, before a licence be awarded under this section, an environmental impact assessment must be made]
[8] The Motions Judge carefully analysed each of these questions in the course of his reasons. He found that the construction proposed by the appellants was contrary to the case law (reasons, paragraph 23), contrary to the purpose of the Act (reasons, paragraph 25) and was not supported by the words of the Act or its regulations (reasons, paragraphs 22, 25-27).
[9] Rouleau J. also rejected the argument that the type of activity permitted by the licence could only be authorized under subsection 32 of the Act. He noted in that regard that section 32 is restricted to "construction projects and their operation which could result in the destruction of fish or damage to fish in habitat" (reasons, paragraph 26). Rouleau J. went on to conclude that the narrow definition of "fishing" proposed by the appellant was without foundation to the point that it did not give rise to a fairly arguable case or disclose a reasonable cause of action.
[10] We can detect no flaw in the Motions Judge's analysis. It seems clear to us that, for the reasons given by Rouleau J., the word "fishing" under the Act does not have the restricted meaning proposed by the appellant.
[11] The appeal will be dismissed with costs which we fix at $3,000 inclusive of disbursements and fees in favour of the Minister and at $3,200, inclusive of disbursements, fees and GST in favour of Heritage.
"Marc Noël" J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-82-03
APPEAL FROM AN ORDER OF THE TRIAL DIVISION DATED JANUARY 14, 2003, COURT FILE NO. T-173-02)
STYLE OF CAUSE: CHIEF PERCY WILLIAMS ET AL v. MINISTER OF FISHERIES et al
PLACE OF HEARING: Edmonton, AB
DATE OF HEARING: December 18, 2003
REASONS FOR JUDGMENT OF THE COURT: ROTHSTEIN, NOËL, MALONE JJ.A.
DELIVERED FROM THE BENCH BY: NOËL, J.A.
APPEARANCES:
|
Eamon Murphy and Jack Woodward |
FOR THE APPELLANT |
|
Rob S. Whittaker and Alex Semple |
FOR THE RESPONDENT (Minister of Fisheries and Oceans) |
|
M. Scott Kerwin |
FOR THE RESPONDENT (Heritage Salmon Ltd.) |
SOLICITORS OF RECORD:
|
|
FOR THE APPELLANT |
|
Deputy Attorney General for Canada Ottawa, ON |
FOR THE RESPONDENT (Minister of Fisheries and Oceans) |
|
Borden Ladner Gervais LLP - Vancouver, B.C. |
FOR THE RESPONDENT (Heritage Salmon Ltd.) |