Date:
20130220
Docket:
T-1925-11
Citation:
2013 FC 169
Ottawa,
Ontario, February
20, 2013
PRESENT:
The Honourable Madam Justice Snider
BETWEEN:
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UHA RESEARCH
SOCIETY,
JAMES EDWARD
AUSTIN,
HIDEAWAY II
VENTURES LTD. AND ANDREW MILNE ON THEIR OWN BEHALF AND ON BEHALF OF ALL ELIGIBLE
CATEGORY G LICENCE-HOLDERS
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Applicants
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and
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THE ATTORNEY
GENERAL OF CANADA, MINISTER OF FISHERIES AND OCEANS AND DON CARTO
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
I.
Introduction
[1] The
Respondent, Mr. Don Carto, holds a licence issued by the Respondent Minister of
Fisheries and Oceans (the Minister) permitting him to carry out aquaculture in
an area of 17.9 hectares in Trevenen Bay in the Strait of Georgia in British
Columbia (the Aquaculture Site). Mr. Carto’s original licence included the right
to cultivate and harvest certain species of clams, oysters and other such marine
species on the Aquaculture Site. In an amendment to the licence dated August 19,
2011 (the Licence Amendment), the Minister granted Mr. Carto certain rights to
harvest geoduck on his Aquaculture Site. Of concern to the Applicants, Mr. Carto
was granted the right to harvest geoduck that were on the Aquaculture Site prior
to the grant of the Licence Amendment.
[2] The UHA
Research Society, James Edward Austin, Hideaway II Ventures Ltd. and Andrew
Milne (collectively, the Applicants) brought this application for judicial
review of the Licence Amendment on behalf of all 55 eligible category G
(geoduck) licence holders in the Pacific Region. The Applicants ask this Court
to quash the Licence Amendment and also seek other declaratory and injunctive
relief.
II.
Issues
[3] After the
oral hearing of this matter, I am satisfied that the overarching issue for
determination is whether the Minister erred by issuing a Licence Amendment that
is not authorized by the Pacific Aquaculture Regulations, SOR/2010-270
[PARs]. Specifically, did the Minister lack the authority to issue a
Licence Amendment to permit Mr. Carto to harvest geoduck existing on the
Aquaculture Site at the time the amendment was issued?
[4] The
Applicants’ arguments that the decision to issue the Licence Amendment should be
overturned can be organized into the following sub-issues:
1. Does the
public right of fishery have any application to the decision?
2. Can the
Minister authorize the harvest of fish (including geoduck) that exist on a
tenure prior to the date of the licence issuance?
3. What is the
meaning of “incidental to the operation of an aquaculture facility” as those
words are used in the PARs?
4. Would Mr.
Carto’s harvest of the pre-existing geoduck on the Aquaculture Site be
“incidental to the operation of an aquaculture facility”?
5. Were the
findings reflected in the reasons for the decision reasonable in the context of
the record?
[5] For the
reasons that follow, I have concluded that the Minister did have the authority
to issue the Licence Amendment and that the decision taken to issue the Licence
Amendment was reasonably open to the Minister based on the record before him.
Accordingly, this application for judicial review should be
dismissed.
III.
Standard of Review
[6] Considerable
discussion took place at the hearing about the appropriate standard of review.
The Applicants cited recent Federal Court of Appeal jurisprudence, asserting
that the standard of review should be correctness (Georgia Strait Alliance v
Canada (Minister of Fisheries and Oceans), 2012 FCA 40 at paras 98-105, 427
NR 110 [David Suzuki]; Sheldon Inwentash and Lynn Factor Charitable
Foundation v Canada, 2012 FCA 136 at paras 18-23, 432 NR 338 [Sheldon
Inwentash]). The Applicants submit that the present case is similar to
Sheldon Inwentash since both cases dealt with an extricable question of
law relating to particular statutory categories. The Applicants also argue
that David Suzuki is relevant, since it also dealt with the Minister’s
interpretation of the Fisheries Act, RSC, 1985, c F-14 [the Fisheries
Act].
[7] It is trite
law that the appropriate standard of review must be ascertained with reference
to the question before the Court. As the Supreme Court of Canada stated in
Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 53, [2008] 1 SCR 190
[Dunsmuir]:
Where the
question is one of fact, discretion or policy, deference will usually apply
automatically (Mossop, at pp. 599-600; Dr. Q at para. 29;
Suresh, at paras. 29-30). We believe that the same standard must apply to
the review of questions where the legal and factual issues are intertwined with
and cannot be readily separated.
[8] In this
case, as I have described the issues or questions before the Court, they fall
into two distinct categories. Sub-issues 1, 2 and 3 may well fall into the
category of questions which the Court of Appeal in David Suzuki and
Sheldon Inwentash stated should be subject to a correctness review. I
will assess those parts of the decision on that basis.
[9] When a
correctness standard is applied, the Supreme Court stated in Dunsmuir,
above at paragraph 50:
a reviewing
court will not show deference to the decision maker’s reasoning process; it will
rather undertake its own analysis of the question. This analysis will bring the
court to decide whether it agrees with the determination of the decision maker;
if not, the court will substitute its own view and provide the correct
answer.
[10] However, the
remaining sub-issues appear to be questions of mixed fact and law to which a
reasonableness standard should apply. In determining that the Licence Amendment
should issue, the Minister made a number of findings of fact or mixed fact and
law relating to Mr. Carto’s activities, the general circumstances of these
geoduck and the history of the Aquaculture Site. Issuance of an aquaculture
licence is a highly discretionary decision in an area in which Minister has
significant expertise (Fisheries Act, above at s. 7; Dunsmuir,
above at para 53; David Suzuki, above at para 104; Tucker v Canada
(Minister of Fisheries and Oceans), 2001 FCA 384, 288 NR 10 [Tucker
FCA], affirming 197 FTR 66, [2000] FCJ No 1868 (TD) [Tucker FC]).
This expertise places the Minister in a better position than the courts to
determine the significance of Mr. Carto’s specific activities vis-à-vis the
geoduck on the Aquaculture Site. Further, two considerations addressed by
Justice Rothstein in Tucker FC, above at paras 13-16 – the “absolute
discretion” under s. 7 of the Fisheries Act and policy-oriented nature of
the decision – are relevant to the present case. Although the decision reflects
an understanding that refusing to allow a pre-seed harvest could set a
precedent, the value of the decision as a precedent was not determinative
because of the fact-driven nature of the decision. This is consistent with
Justice Rothstein’s reasoning in Tucker FC and the application of a
reasonableness standard.
[11] A
reasonableness standard requires the court to determine whether a decision
“falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and the law” (Dunsmuir, above at para 47). As noted
by Justice Binnie in Canada (Minister of Citizenship and Immigration v
Khosa, 2009 SCC 12 at paragraph 59, [2009] 1 SCR 339:
There might
be more than one reasonable outcome. However, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.
[12] In sum, I
will apply a standard of correctness to sub-issues 1, 2 and 3 and a standard of
reasonableness to sub-issues 4 and 5.
IV.
Background
[13] The
background leading to this application for judicial review is somewhat lengthy
but necessary to situate the reader.
[14] Geoduck are
the largest of Canada’s Pacific clams and are of great commercial value. During
early development, a geoduck “seed” will settle on the ocean floor and dig
itself into the substrate, where it will continue to grow. For the rest of its
life, a geoduck will remain buried in the same place beneath the ocean floor
that it reaches as a juvenile. A double siphon that resembles an elephant’s
trunk allows the geoduck to strain marine organisms out of sea water to obtain
nutrients. Although they may live much longer, geoduck reach market size at
around 8-10 years of age. Divers harvest geoduck with special equipment that
dislodges them from the substrate using pressurized water.
[15] In 2005,
Mr. Carto and his business partner, Ms. Karen King, commenced an aquaculture
venture called C-King. In March 2005, Ms. King acquired a company called O.K.
Oyster, which held a provincial aquaculture licence covering the Aquaculture
Site. Ms. King and Mr. Carto received provincial authorization to amend the
aquaculture licence to cultivate a variety of marine species, which did not
include geoduck.
[16] During the
remediation of the Aquaculture Site, Mr. Carto found geoduck seeds lodged in
metal baskets and trays left over from the oyster operation. In his affidavit
evidence in this matter, Mr. Carto suggests that these juvenile geoduck were
either wild geoduck or came from a floating hatchery maintained nearby.
Provincial representatives gave Mr. Carto permission to cultivate the geoduck.
They assured him that licensing could occur later on, when Mr. Carto could show
that the geoduck could grow and the Provincial Ministry had refined its
policies.
[17] Mr. Carto
recovered geoduck seeds and planted them, mainly from late 2005 until the end of
2007. Mr. Carto protected the geoduck planted in the intertidal waters by
placing them in plastic tubes dug into the ocean floor during their early
development. He also installed predator netting to protect geoduck in the
subtidal waters and monitored and removed predators. Mr. Carto grew kelp as part
of his multi-species aquaculture operation, which provided nutrients for the
growing geoduck.
[18] In August
2010, Mr. Carto and Ms. King applied for an amendment to their provincial
aquaculture licence to include geoduck, since the geoduck in the Aquaculture
Site were nearing the size at which they could be harvested. Although the
amendment was approved, the licence expired in December 2010 since a recent
court ruling (Morton v British Columbia (Agriculture and Lands), 2009
BCSC 136, 92 BCLR (4th) 314 [Morton]) led to the transfer of formal
responsibility for aquaculture licences to the federal government.
[19] From that
point, Mr. Carto and Ms. King were required to deal with the federal Department
of Fisheries and Oceans (DFO). Throughout the negotiations with the DFO,
Mr. Carto dealt with Ms. Kerry Marcus, as well as a few other
employees.
[20] On September
28, 2010, Ms. Marcus took a tour of the Aquaculture Site. At this time and in
the months that followed, Mr. Carto told Ms. Marcus about his activities with
respect to geoduck. He showed Ms. Marcus a picture that, according to him,
contained juvenile geoduck. As reflected in her affidavit in this matter,
Ms. Marcus was advised by a research biologist that there were no geoduck in the
picture, but she still took Mr. Carto at his word that he had cultivated
them.
[21] Mr. Carto
and Ms. King received a federal aquaculture licence for all species except for
geoduck in December 2010, since, at the time of their application, they had not
yet received the formal amendment to their provincial licence to include
geoduck. Mr. Carto and Ms. King inquired about an amendment to this federal
licence, corresponded with Ms. Marcus and eventually submitted a Harvest Plan.
Ms. Marcus recommended that the geoduck amendment be granted in her Referral
Summary Report. With approval by the Regional Director General, the Licence
Amendment was issued on August 19, 2011 with certain conditions. Of primary
concern to the Applicants, the Licence Amendment gave Mr. Carto approval to
harvest the geoduck that already existed on the Aquaculture Site.
[22] This
approval to harvest existing geoduck appears, at least to the Applicants, to be
contrary to the usual practice of permitting the commercial fishery to conduct a
“pre-seed harvest” of shellfish on the tenure prior to the commencement of
aquaculture activities. If this protocol had been followed, the 55 geoduck
licence holders would have been able to harvest any and all geoduck located on
Mr. Carto’s Aquaculture Site, whether or not they had been planted and cultured
by Mr. Carto or were otherwise located on the tenure.
[23] The
Applicants learned of the decision to issue the Licence Amendment, with its
authorization to harvest existing geoduck, at a meeting held in October 2011.
They sought judicial review on November 28, 2011.
V.
Decision Under Review
[24] The
Applicant seeks review of the decision to approve the Licence Amendment which
permits Mr. Carto: (a) to cultivate geoduck; and (b) to harvest the geoduck
already present on his tenure. The Applicants do not object to the grant of the
right to cultivate geoduck; their sole concern is with respect to the proposed
harvest of geoduck on the Aquaculture Site.
[25] The decision
in question was based upon a Referral Summary Report and Recommendation dated
August 11, 2011 drafted by Ms. Marcus. All three parties rely on Ms. Marcus’s
Report as outlining the reasons for the decision.
[26] In her
Report, Ms. Marcus began by evaluating the impact of the licence amendment, if
granted, on other resource users in the area and the surrounding environment.
She stated that there was no First Nations opposition and the Aquaculture Site
is in an area where the commercial fishery will be unaffected. She also
explained that since the area is already subject to active aquaculture, there
would be no significant risk to fish and their habitat.
[27] Ms. Marcus
noted Mr. Carto’s opposition to a pre-seed harvest by the commercial fishery and
that Mr. Carto included the harvest of the pre-existing geoduck in his Harvest
Plan. She also acknowledged that the commercial fishery and the UHA could be
concerned about a refusal to allow a pre-seed harvest. Ms. Marcus noted that
waiving a pre-seed harvest in this case could set a precedent, but the facts of
each case must be evaluated individually.
[28] Ms. Marcus
recommended that the commercial fishery should not be granted a pre-seed
harvest. Ms. Marcus cited the Interim Protocol for Pre-Seed Harvest of
Subtidal Geoduck Aquaculture Sites (2010) [Pre-Seed Harvest
Protocol], explaining that there was no history of commercial geoduck
fishing at the Aquaculture Site and it was unlikely that a high-density
population of commercially harvestable geoduck would be found there. Further,
Mr. Carto’s pre-existing aquaculture operation is already present in the
Aquaculture Site which would be unduly disrupted by commercial operations.
Ms. Marcus also explained that Mr. Carto had replanted juvenile geoduck and,
“[w]hile the aquaculturalist has not deliberately seeded hatchery-raised
geoduck, he has demonstrated active husbandry of the pre-existing geoduck at the
site”.
[29] Ms. Marcus
also acknowledged that aquaculturalists are permitted access to by-catch of wild
geoduck by the Pre-Seed Harvest Protocol as well as the National
Policy on Access to Wild Aquatic Resources as it Applies to Aquaculture.
These policies allow for geoduck not deliberately placed on the lease to be
harvested along with those deliberately cultured. Harvest of wild geoduck at the
site by Mr. Carto would allow him to test the substrate and density of the
existing population.
VI.
Statutory Framework
[30] Mr. Carto’s
aquaculture licence and the Licence Amendment at issue in this application are
creatures of the statutory regime affecting fisheries. I begin with an overview
of that scheme.
[31] Section 7 of
the Fisheries Act provides the Minister with discretion to issue fishing
licences:
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7. (1)
Subject to subsection (2), the Minister may, in his absolute discretion,
wherever the exclusive right of fishing does not already exist by law, issue or
authorize to be issued leases and licences for fisheries or fishing, wherever
situated or carried on.
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7. (1) En
l’absence d’exclusivité du droit de pêche conférée par la loi, le ministre peut,
à discrétion, octroyer des baux et permis de pêche ainsi que des licences
d’exploitation de pêcheries — ou en permettre l’octroi —, indépendamment du lieu
de l’exploitation ou de l’activité de
pêche.
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[32] Section 43
of the Fisheries Act allows the Governor in Council to make regulations
for carrying out the purposes and provisions of the Act, including regulations
relating to the issuance, suspension and cancellation of licences.
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43.
(1) The Governor in Council may make regulations for carrying out the purposes
and provisions of this Act and in particular, but without restricting the
generality of the foregoing, may make regulations
. .
.
(f)
respecting the issue, suspension and cancellation of licences and
leases;
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43.
(1) Le gouverneur en conseil peut prendre des règlements d’application de la
présente loi, notamment :
. .
.
f)
concernant la délivrance, la suspension et la révocation des licences, permis et
baux
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[33] Aquaculture
licences are issued pursuant to the PARs. Specifically, s. 3 of the
PARs authorizes the issuance of an aquaculture licence allowing for
participation in aquaculture and prescribed activities:
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3. The
Minister may issue an aquaculture licence authorizing a person to engage in
aquaculture and prescribed activities.
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3. Le
ministre peut délivrer un permis d’aquaculture autorisant une personne à
pratiquer l’aquaculture ou des activités
réglementaires.
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[34] Section 1 of
the PARs provides a definition for aquaculture as well as for “prescribed
activities”:
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1. The
following definitions apply in these Regulations.
…
“aquaculture”
means the cultivation of fish. (aquaculture)
…
“prescribed
activities” means
(a)
the catching of fish for the purpose of cultivation;
(b)
the catching of fish that is incidental to the operation of an aquaculture
facility;
(c)
the catching of fish for the purpose of complying with any monitoring condition
specified in an aquaculture licence;
(d)
the catching of fish that escape from an aquaculture facility for the purpose of
returning them to the aquaculture facility or otherwise disposing of them;
and
(e)
the catching of nuisance fish. (activités réglementaires)
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1. Les
définitions qui suivent s’appliquent au présent règlement.
…
« activités
réglementaires »
S’entend des
activités suivantes :
a)
la prise de poisson à des fins d’élevage;
b)
la prise accidentelle de poisson dans le cadre de l’exploitation d’une
installation d’aquaculture;
c)
la prise de poisson afin de se conformer à toute condition concernant les
mesures de surveillance prévues par le permis d’aquaculture;
d)
la prise de poissons évadés d’une installation d’aquaculture dans le but de les
retourner dans l’installation ou d’autrement en disposer;
e)
la prise de tout poisson nuisible. (prescribed activities)
«
aquaculture » Élevage du poisson. (aquaculture)
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[35] Aquaculture
licences may be issued subject to conditions as outlined in s. 4 of the
PARs. In general terms, the Minister is authorized to impose conditions
“[f]or the proper management and control of fisheries and the conservation and
protection of fish”. The regulatory authority to impose conditions on
aquaculture licences is very broad. In addition to the specific conditions set
out in s. 4 of the PARs, the Minister may impose any of the specific
conditions set out in s. 22(1) Fishery (General) Regulations, SOR/93-53
[FGRs].
VII.
Analysis
A.
Public Right of Fishery
[36] The
Applicants assert that there is a quasi-constitutional public right of fishery,
which can only be abrogated through the enactment of competent legislation.
While I accept that there may be a residual public right of fishery in certain
circumstances where Parliament has not legislated, this public right has no
application to this case.
[37] In R v
Gladstone, [1996] 2 SCR 723 at paragraph 67, 137 DLR (4th) 648, the Supreme
Court addressed the public right of fishery in Canada. The Court summarized and
accepted case law from the Judicial Committee of the Privy Council, stating that
the public right of fishery cannot be abrogated, and an exclusive fishery
thereby created, without legislation:
It should
also be noted that the aboriginal rights recognized and affirmed by s. 35(1)
exist within a legal context in which, since the time of the Magna Carta, there
has been a common law right to fish in tidal waters that can only be abrogated
by the enactment of competent legislation:
. . . the
subjects of the Crown are entitled as of right not only to navigate but to fish
in the high seas and tidal waters alike.
…
[I]t has
been unquestioned law that since Magna Charta [sic] no new exclusive
fishery could be created by Royal grant in tidal waters, and that no
public right
of fishing in such waters, then existing, can be taken away without competent
legislation.
(Attorney-General
of British Columbia v. Attorney General of Canada, [1914] A.C. 153
(J.C.P.C.), at pp. 169-70, per Viscount Haldane.)
[38] The role of
the public right of fishery in the context of the present Fisheries Act
was addressed by the British Columbia Court of Appeal in R v Kapp, 2006
BCCA 277, 56 BCLR (4th) 11 per Justice Low, all other judges concurring on this
point, aff’d 2008 SCC 41, [2008] 2 SCR 483 dealing with the Charter and
aboriginal rights issues only [Kapp].
[39] At paragraph
19, Justice Low stated that:
The common
law right to fish in Canada has been substantially limited by the Fisheries
Act. The statute and regulations passed pursuant to it control fishing. A
right to fish in waters to which the statute has application does not exist in
law unless authorized under that statute, usually by licence. [Emphasis
added.]
[40] Hence,
although the public right of fishery may still exist, it is nonetheless
restricted by the Fisheries Act. This legislation regulates who may enter
the fishery and the allocation of the fishery resources, imposing significant
limits on who may exercise the public right to fish and under what circumstances
they may do so.
[41] The
Applicants recognize that the management and allocation of the public resource
between user groups in the public fishery does not offend the public right to
fish (Kapp, above at paras 54-66). However, the Applicants distinguish
this case law since Mr. Carto received exclusive access to all the wild geoduck
in the Aquaculture Site, through an aquaculture licence, without any limitation.
I do not agree.
[42] Kapp must be
read in the context of the changes in the law articulated in and following
Morton. Morton confirmed that the federal government has
jurisdiction over aquaculture, a fishery which falls under the federal fisheries
power (Morton, above at paras 156, 161, 193). After this decision, formal
responsibility for aquaculture was transferred to the federal government.
Federal legislation and regulations relating to aquaculture now legally abrogate
the public right of fishery.
[43] Reading
Morton and Kapp together, the federal government has exercised its
legislative authority to manage the fisheries resources within the public
fishery and private aquaculture fishery. This necessarily includes the geoduck
fishery – comprising all the geoduck in the region – and the allocation of
resources between the owners of G licences and aquaculturalists. The PARs
and an aquaculture licence validly authorized by them are “simply part of the
regulatory scheme in force at the relevant time” and “only one of the methods of
allocation of the resource” (Kapp, above paras 54, 57). The Minister
retains the right to issue other licences pursuant to his absolute discretion
under s. 7 of the Fisheries Act (Kapp, above at para 60).
Therefore, this decision appears to be very similar to the allocation decision
in Kapp, which did not create an exclusive fishery and did not offend the
public right to fish.
[44] Therefore,
the determinative issue is whether the licence issued to Mr. Carto falls within
the scope of the Fisheries Act and the PARs. The Minister’s
decision to issue the Licence Amendment is not rendered incorrect by the public
right of fishery. Where the legislative scheme exists and regulates the public
right to fish, an aquaculture licence that falls within the bounds of the
applicable legislation and regulations is validly authorized.
B.
Authorization under the PARs
[45] I turn to an
examination of the PARs. Section 3 of the PARs states that, “[t]he
Minister may issue an aquaculture licence authorizing a person to engage in
aquaculture and prescribed activities” (emphasis added). If Ms. Marcus
correctly concluded that the harvest of the geoduck already present on
Mr. Carto’s tenure fell within the definition of aquaculture or prescribed
activities, then the licence is validly issued under the PARs.
[46] The
Applicants assert that the prohibition on commercial fishing renders Mr. Carto’s
activities vis-à-vis the geoduck on his tenure illegal. A licence for
aquaculture, as well as the corresponding licences for broodstock and to
transfer the seeded geoduck, is required. This argument appears to negate the
straightforward possibility that the geoduck on Mr. Carto’s tenure are the
proper subject of an aquaculture licence as the product of aquaculture, defined
under the PARs as the cultivation of fish.
[47] The legal
status of these pre-existing geoduck must be determined with reference to the
prescribed activity of “the catching fish that is incidental to the operation of
an aquaculture facility” and the very unique facts presented by this case.
[48] For the
following reasons, I believe that the licence is validly issued since the
harvest of the pre-existing geoduck is incidental to the operation of an
aquaculture facility.
C.
The Meaning of “Incidental to the Operation of an Aquaculture
Facility”
[49] As noted, s.
3 of the PARs permits an aquaculture licence to authorize “prescribed
activities” including the “catching of fish that is incidental to the operation
of an aquaculture facility” (PARs, s. 1). This case raises a question of
statutory interpretation: namely, the meaning of the words “incidental to the
operation of an aquaculture facility”.
[50] The modern
rule of statutory interpretation, as stated by Elmer A. Driedger (The
Construction of Statutes, 2d ed (Toronto: Butterworths, 1983) at 87)
and cited with approval by the Supreme Court (Re Rizzo & Rizzo Shoes
Ltd, [1998] 1 SCR 27 at para 21, 36 OR (3d) 418; Bell ExpressVu Limited
Partnership v Rex, 2002 SCC 42 at para 26, [2002] 2 SCR 559), is as
follows:
Today there
is only one principle or approach, namely, the words of an Act are to be read in
their entire context and in their grammatical and ordinary sense harmoniously
with the scheme of the Act, the object of the Act, and the intention of
Parliament.
[51] When reading
the words of the PARs to determine their grammatical and ordinary sense,
it is logical to define “incidental” in reference to jurisprudence requiring a
meaningful connection to a particular activity, including activities that are
subordinate to a principal activity (Bank of Nova Scotia v Canada
(Superintendent of Financial Institutions), 2003 BCCA 29 at paras 55-58, 11
BCLR (4th) 206; R v Sundown, [1999] 1 SCR 393 at paras 28-33, 170 DLR
(4th) 385; Canadian National Railway v Harris, [1946] SCR 352 at 386,
[1946] 2 DLR 545, Estey J). In this particular circumstance, the meaningful
connection must be to the operation of an aquaculture facility. The word
“incidental” does not necessarily imply a particular meaning that may be found
in the fishing industry at large, as posited by the Applicants.
[52] This
interpretation is supportable with reference to the broader context of the
statutory scheme as a whole. The framework of the PARs demonstrates that
the presence of a licensed, cultured crop may not be necessary, contrary to the
assertions of the Applicants.
[53] Section 4 of
the PARs does not appear to be limited, as argued by the Applicants, to
exclude a harvest of fish preceding a licensed, seeded crop. According to s. 4,
an aquaculture licence may contain conditions relating to “the harvesting of
fish in the aquaculture facility” and the records that must be kept of
harvests and other catches, such as catches of nuisance fish or fish that escape
the facility (PARs, s. 4, emphasis added). This provision was drafted
very broadly, with no limitation on what type of fish may be harvested. The use
of a qualifier in other situations – for example, with respect to “nuisance
fish” – further emphasizes that the word “fish” is meant to be viewed
broadly.
[54] Other
conditions that may be placed in an aquaculture licence also support this
interpretation. The conditions under s. 22(1) of the FGRs relating to
fishing may be placed in an aquaculture licence pursuant to s. 4 of the
PARs; for example, specification of a fishing vessel, fishing equipment,
species and quantity of fish or locations and times when fishing is permitted.
This element of the PARs casts doubt on whether Parliament intended a
clear demarcation under fisheries regulations between licensed, cultured fish
and other fish.
[55] The purpose
of the PARs is to license and facilitate aquaculture activities. A
meaningful link to the operation of an aquaculture facility is consistent with
this purpose. It also provides an important limitation, ensuring that an
aquaculture licence requires some level of aquaculture activity.
[56] I would not
assume, as the Applicants do, that “incidental to the operation of an
aquaculture facility” should be interpreted with reference to the meaning of
“incidental catch” or “accidental catch” in the context of commercial fishing.
On the basis of plain meaning alone, the use of the phrase “to the operation of
an aquaculture facility” seems to import additional considerations than simply
whether or not a catch was inadvertent. Further, the term “incidental catch” is
used in s. 5 of the PARs, which states that:
|
5. Unless
the retention of incidental catch is expressly authorized by an aquaculture
licence, every person who catches a fish incidentally must immediately return
it, if it is alive, to waters outside the aquaculture facility in a manner that
causes it the least harm.
|
5. Sauf dans
le cas où le permis d’aquaculture autorise expressément la rétention des prises
accidentelles, quiconque prend accidentellement un poisson doit, s’il est encore
vivant, le remettre sur-le-champ dans les eaux situées à l’extérieur de
l’installation d’aquaculture de manière à lui occasionner le moins de blessures
possible.
|
[57] Section 5 of
the PARs does appear to equate the word “incidental” with the word
“accidental”, as the Applicants assert. However, since different wording was
chosen in the definition of “prescribed activities” under s. 1 of the
PARs, this suggests that a different meaning was also intended.
[58] Therefore,
an aquaculture licence may authorize the catching of fish incidental to the
operation of an aquaculture facility. A meaningful connection to aquaculture
activities is necessary, but the PARs do not require the presence of a
licensed, cultured crop or that the catch is accidental. If Ms. Marcus’s
findings support a meaningful link to an aquaculture operation in this case,
then Mr. Carto’s licence is appropriately authorized under the
PARs.
C.
Mr. Carto’s Actions
[59] Ms. Marcus’s
factual findings, viewed in the context of the record before her, demonstrate
that Mr. Carto’s aquaculture licence is validly authorized. Mr. Carto’s harvest
of the pre-existing geoduck, although not cultivated pursuant to an aquaculture
licence, appears to be incidental to his ongoing Mari-Poly aquaculture
operation, which includes the farming of geoduck.
[60] Ms. Marcus
found that:
•
Mr. Carto
was engaged in “active husbandry of the geoduck population at the site” on the
basis of his activities, including “replanting juvenile geoduck… disrupted in
various bottom clean-up operations, as well as the natural sets that have
occurred under mesh containers and netting left on the bottom from previous farm
operations”;
•
The
“[h]arvest of existing wild geoduck at the site is intended by the
aquaculturalist to test the substrate and the density of the existing
stocks”;
•
There “is no
impact to the commercial fishery”: there is “no documented commercial harvest
history at the site” and “the likelihood of existing high density population of
commercially harvestable geoduck is low”; and
•
The
Aquaculture Site was already “actively under culture” of a number of marine
species and “[t]he site is well occupied with [Mr. Carto’s] farming gear (rafts,
long lines and on bottom sea cucumber)”.
[61] Ms. Marcus’s
factual findings demonstrate that the harvest of the pre-existing geoduck may
reasonably be considered to be incidental to the operation of an aquaculture
facility. Ms. Marcus characterized the geoduck in the Aquaculture Site as almost
exclusively those husbanded by Mr. Carto. Ms. Marcus’s findings demonstrate that
Mr. Carto was committed to geoduck husbandry and intended to continue these
activities pursuant to his aquaculture licence in the future. The harvesting of
the geoduck already on the site would provide helpful information for Mr. Carto
about where in the Aquaculture Site and under what conditions geoduck grow best
as he proceeds with his activities pursuant to his licence. Ms. Marcus also
acknowledged Mr. Carto’s overall aquaculture operation – of which the geoduck
are only a part. This further supports her conclusion that Mr. Carto plans to
harvest the geoduck not just for commercial reasons, but to obtain information
to continue his work.
[62] Ms. Marcus
does not use the word “aquaculture” or its definition under s. 1 of the
PARs, “cultivation of fish”, to describe Mr. Carto’s activities. This
makes sense, since these activities were not licensed. However, Ms. Marcus’s
factual findings lead the reader to conclude that unlicensed cultivation did
occur – Mr. Carto replanted geoduck, cleaned up the sea floor and engaged in
“active husbandry”. Further, the record demonstrates that the geoduck in the
Aquaculture Site benefited from the predator netting, PVC tubes and kelp
provided by Mr. Carto. This is consistent with the meaning of cultivation under
this particular statutory scheme and more broadly, in other areas of law, such
the context of cultivation of marijuana. For example, in R v Mowry, 2006
NBCA 18 at paragraph 11, 297 NBR (2d) 16, the New Brunswick Court of Appeal
accepted the following definition of cultivation: “[t]o bestow labour and
attention upon land in order to the raising of crops, to till, to improve and
render fertile by husbandry”.
[63] The
Applicants assert that Mr. Carto had an obligation to replace geoduck that he
found, and that, if his activities extend further, they constitute enhancement
and nothing more. However, Ms. Marcus’s finding that Mr. Carto engaged in
“active husbandry” appears to be much closer to a finding that Mr. Carto
cultivated geoduck, as opposed to simply discharging his statutory
responsibility or engaging in enhancement.
[64] Mr. Carto’s
activities go farther than the requirement to replace fish incidentally caught,
as required under s. 33 of the FGRs. Section 33 requires a person who
catches a fish incidentally without authorization, to replace that fish in a
manner that causes the least harm to it. Ms. Marcus stated in cross-examination
that reburying a geoduck would go beyond this requirement to replace. Further,
Mr. Carto’s cleanup activities with respect to the Aquaculture Site, expressly
acknowledged by Ms. Marcus, as well as his activities documented in the record,
involved much more than simple replacement.
[65] Mr. Carto’s
actions do not fit the definition of enhancement espoused by the Applicants.
Enhancement is defined by the Applicants as involving seeding on
non-privately-held tenure, but nothing more. Mr. James Austin, a geoduck licence
holder and President of the UHA Research Society, was cross-examined on his
affidavit. Mr. Austin stated on cross-examination that the commercial fishery
performs enhancement activities, which consist of:
putting
privately-grown geoduck, juvenile geoduck back into the common property, into
the, into the wild production… But they are left there to mature.
…
Some of them
have been planted, yes, and some of them have been sprinkled on the seabed and
protected. Some of them have been planted with a technical planter that we
had.
(Applicants’
Record at 101-103; see also Applicants’ Record at 597-598 in which enhancement,
according to the UHA, appears to be restricted to seeding and reburying small
geoduck.)
[66] Mr. Carto’s
situation is different than that of enhancement, in the context of the
commercial fishery, as described by Mr. Austin. Mr. Carto has done much more
with his Mari-Poly aquaculture operation than the commercial fisheries do. For
example, Mr. Carto provided greater protection to his geoduck, protecting
planted geoduck as well as those sprinkled on the seafloor. Mr. Carto’s kelp
also provided food for the geoduck. The term “enhancement” used by the
Applicants appears to involve planting geoduck and leaving them alone to mature.
Mr. Carto’s approach, as described by Ms. Marcus, was much more interventionist
and of a fundamentally different character.
D.
Reasonableness of Findings in the Context of the Record
[67] The
Applicants assert that the references in the record to Mr. Carto’s activities,
presumably in the licence applications, refer to proposed changes subject to
approval and, thus, cannot be considered to be activities incidental to his
aquaculture operation. I do not agree.
[68] Ms. Marcus
explained in her Summary Report that Mr. Carto “has demonstrated active
husbandry of the pre-existing geoduck at the site”, referencing his activities
in cleaning up the Aquaculture Site, salvaging juvenile geoduck and replanting
them. Further, the information before Ms. Marcus showed that Mr. Carto took an
active role in rescuing, replanting, protecting and feeding the geoduck at the
Aquaculture Site:
•
Ms. Marcus
spoke to Mr. Carto about his activities relating to the geoduck and communicated
with him by e-mail;
•
She had
access to Mr. Carto’s federal licence application dated November 24, 2010 and
his DFO Interim Site Management Plan dated March 3, 2011, both of which refer to
predator netting; and
•
She also
received Mr. Carto’s provincial licence amendment application dated August 26,
2010, which referenced the netting and PVC tubes used to protect the geoduck, as
well as the kelp grown at the Aquaculture Site.
[69] In advancing
their argument, the Applicants ignore the context in which the licence amendment
applications were submitted. Mr. Carto informed Ms. Marcus by e-mail,
that:
As you know
we worked very closely with MAL licensing as well as enforcement for the last 6+
years to develop this Mari-Poly Culture model.
Doing the
R&D required to prove all of these species could be grown under one licence
in one area.
A
substantial amount of money has been spent thus far in developing to a stage
[where] we are now ready for full quota production.
With regards
to the Geo duck we were able to salvage some seed during under water clean up
that was done.
This natural
seed stock was spread out on the farm to test the substrate for a successful
grow out.
We were told
by the province to continue our R&D [projects] that had been discussed and
when were successful and ready to go into production we could have it added to
current licence which was done prior to the deadline.
[70] This is an
acknowledgment that the provincial licence describes the apparatus already in
place. The purpose of the licence amendment application was to gain official
approval for actions that had already occurred and which were already sanctioned
by the province.
[71] The
Applicants also point to Ms. Marcus’s statement in her cross-examination that
she did not remember discussing geoduck with Mr. Carto during her site visit,
and the divers did not see any geoduck, geoduck predator netting or PVC tubes.
However, the Applicants ignore the fact that the intent of this particular site
visit was to examine Mr. Carto’s sea cucumber and sea cucumber culture
methodology. Therefore, Ms. Marcus’s findings in her Summary Report are
perfectly reasonable, since, at the time, the DFO staff were not focused on
geoduck.
[72] Lastly, the
Applicants raise the issue of a picture that Mr. Carto showed to Ms. Marcus on
the basis that it contained juvenile geoduck. The Applicants imply that since
this picture does not contain geoduck, it may be inferred that Mr. Carto cannot
identify geoduck or that there are no geoduck in the Aquaculture
Site.
[73] In my view,
the evidence relating to this photo is not sufficient to render Ms. Marcus’s
conclusions unreasonable. At best, this evidence appears to be somewhat
contradictory. Further, Ms. Marcus chose to believe Mr. Carto’s explanation of
his activities based on her communications with him and documentation received
from the provincial government. It is not the role of the court to reweigh this
evidence to come to a different conclusion. Even if there are no geoduck in this
particular picture, it does not necessarily follow that Mr. Carto did not
cultivate geoduck in the Aquaculture Site. Therefore, Ms. Marcus’s factual
finding that Mr. Carto engaged in geoduck husbandry should not be disturbed on
this basis.
VIII.
Conclusion
[74] In
conclusion, I find that Mr. Carto’s Licence Amendment is appropriately
authorized under the PARs. Stated in terms of the standard of review, I
am satisfied that the threshold decision that the Minister had the authority to
issue the Licence Amendment was correct. Further, the Minister’s interpretation
of the words “incidental to the operation of an aquaculture facility” was
correct. Finally, the Minister’s findings of the fact and mixed fact and law (as
reflected in the Summary Report) were reasonable.
[75] This case
presents unusual facts. In the general case, it is not likely that pre-existing
stocks would be incidental to an aquaculture operation since there would be no
history – licensed or not – of cultivation at the site and no grounds upon which
the Minister could conclude that this cultivation would continue in the future.
However, Mr. Carto’s situation is unique. Mr. Carto applied for a federal
aquaculture licence after the transition from provincial regulation of
aquaculture. Under the provincial regime, Mr. Carto was apparently sanctioned by
the provincial government to test out the farming of geoduck in the context of
his experimental Mari-Poly culture model, with the assumption that a licence
could be obtained later if cultivation was successful. Although Mr. Carto did
eventual receive a provincial licence, this provincial licence was not valid for
long because of the decision in Morton. This left Mr. Carto to apply for
a federal aquaculture licence under somewhat unusual circumstances. In addition,
the harvest of these geoduck will provide important information for the
continuation of Mr. Carto’s husbandry of geoduck. The geoduck harvest is
authorized pursuant to the “prescribed activity” of “catching fish incidental to
the operation of an aquaculture facility”.
[76] The
application for judicial review will be dismissed with costs to the Respondents.
At the close of the hearing, I asked that counsel for all parties present their
Bills of Costs. I gave the parties an opportunity to comment on those Bills of
Costs. The Applicants did not comment on the Bills of Costs put forward for
consideration by the Respondents. In my discretion, I believe that a total award
of $40,000 inclusive of all fees, disbursements and taxes is reasonable. I will
include an award of a lump sum amount of $20,000 to each of: (a) Mr. Carto; and
(b) the Attorney General of Canada and the Minister of Fisheries and Oceans
(jointly).
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES as follows:
1. The
application for judicial review is dismissed;
2. Costs in the
following lump sum amounts, inclusive of all fees, taxes and disbursements, are
to be paid by the Applicants to the Respondents:
a) to Mr. Don
Carto: $20,000; and
b) to the
Attorney General of Canada and Minister of Fisheries and Oceans (jointly):
$20,000.
“Judith A.
Snider”
Judge
FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKET:
T-1925-11
STYLE OF
CAUSE:
UHA RESEARCH SOCIETY and others
v. ATTORNEY
GENERAL OF CANADA and others
PLACE OF
HEARING:
VANCOUVER, BRITISH COLUMBIA
DATE OF
HEARING:
JANUARY 15 and 16, 2013
REASONS FOR
JUDGMENT: SNIDER
J.
DATED:
FEBRUARY 20, 2013
APPEARANCES:
|
Christopher
Harvey, Q.C
David K.
Georgetti
|
FOR THE
APPLICANTS
|
|
George K.
MacIntosh Q.C.
Nicholas T.
Hooge
|
FOR THE
RESPONDENT
DON
CARTO
|
|
Monika
Bittel
Lisa
Riddle
|
FOR THE
RESPONDENTS
ATTORNEY
GENERAL OF CANADA and
MINISTER OF
FISHERIES AND OCEANS
|
SOLICITORS
OF RECORD:
|
MacKenzie
Fujisawa LLP
Barristers
and Solicitors
Vancouver, British
Columbia
|
FOR THE
APPLICANTS
|
|
Farris,
Vaughan, Wills
& Murphy
LLP
Barristers
and Solicitors
Vancouver, British
Columbia
|
FOR THE
RESPONDENT
DON
CARTO
|
|
William F.
Pentney
Deputy
Attorney General of Canada
Vancouver, British
Columbia
|
FOR THE
RESPONDENTS
ATTORNEY
GENERAL OF CANADA and
MINISTER OF
FISHERIES AND OCEANS
|
