Judgments

[1995] 2 F.C. 272

T-359-94

Steiner Antonsen, Steiner Fishing Company Ltd., Andrew Goddard, Ronald Goreman, Hank McBride, Albert Radil, John Radil, George Radil, Radil Fishing, John Roach, Garry Sigmund, Tom Wilkinson, Marke Antonsen, Stamar Fishing Co. Ltd., Golden Alaska Fisheries Inc. and Supreme Alaska Fisheries Inc. (Plaintiffs)

v.

The Attorney General for Canada and the Minister of Fisheries and Oceans (Defendants)

Indexed as: Antonsen v. Canada (Attorney General) (T.D.)

Trial Division, Reed J.—Ottawa, October 3, 1994 and February 17, 1995.

Fisheries — Minister refusing to license foreign fishing vessels to enter Canadian fisheries waters under Coastal Fisheries Protection Act — Refusal based on lack of cooperation with Canada’s fisheries conservation objectives — Subdelegation of Governor in Council’s authority to Minister “respecting” issuance of permits — Powers of subdelegation to be strictly interpreted — Minister exceeding authority in refusing permits — Fishery (General) Regulations, s. 32 allowing licence conditions imposed by Minister.

Administrative law — Refusal of Minister to licence fishing vessels of foreign country not cooperating with Canadian fisheries conservation objectives — Statute prohibiting entry of foreign fishing vessels unless authorized by Act or regulations — Governor in Council empowered to make regulations — Necessity for subdelegation to Minister — Power to “prescribe,” regulate “respecting” certain matters, distinguished — Whether Minister’s delegated authority extending beyond details to principles of law — Purpose of legislation not to buttress Minister’s position in international negotiations — Minister exceeding authority — Law long opposed to ill-defined powers of subdelegation, interpreting strictly.

This action resulted from the refusal of the Minister of Fisheries and Oceans to license two of the plaintiffs, which are owners of American fish processing vessels, to enter Canadian fisheries waters because the United States does not cooperate with Canada’s fisheries conservation objectives. The plaintiffs also challenged the conditions which the Minister has attached to the hake fishing licenses of Canadian fishing vessels requiring that catches of hake be either landed at a location within Canada or delivered to a fish processing vessel licensed by the Minister to enter Canadian waters. Three issues were raised herein: 1) whether the Minister had authority to refuse permits to enter Canadian waters to a whole class of foreign fishing vessels, on the basis on which he has acted; 2) whether he had authority to attach said conditions to the Canadian vessel fishing licences and 3) whether he acted without authority because the cumulative effect of his actions was to impose a restriction on exports.

Held, a declaration should issue, declaring invalid the Minister’s refusal to permit the plaintiffs’ vessels to enter Canadian fisheries waters.

1) Section 3 of the Coastal Fisheries Protection Act prohibits all foreign fishing vessels from entering Canadian fisheries waters unless authorized by the Act or regulations to do so. Section 6 of that Act confers upon the Governor in Council power to make regulations “for authorizing” the entry of foreign fishing vessels by permits and to impose terms and conditions therein. The Minister’s authority with respect to the issuing of permits to enter Canadian waters is implicit in the wording of the Act. The Governor in Council was not meant to deal with each permit application himself and as a matter of practical necessity, subdelegation to the Minister or to some other person would be required. When the Governor in Council is given power to “prescribe” certain matters, there is no right to subdelegate that authority to another. When, however, power to make regulations is given “respecting” certain matters, there is room for subdelegation. The Governor in Council’s authority under paragraph 6(a) of the Act to make regulations “for authorizing [entry] … for any purpose specified in the regulations” does not mean that broad authority to establish not only the details but the principles of the entire law can be conferred on the Minister. The legislation was not intended to be used by the Minister to buttress his stance internationally when negotiating with other nations on Canada’s fisheries objectives. The Minister exceeded his authority in rejecting the applications for permits to enter Canadian waters. The law has long set its face against ill-defined powers of subdelegation and interpreted such strictly. Decision-making by subdelegates, based on broad and undefined powers, can too easily be exercised in an unfair manner.

2) In the case of the Canadian fishing vessel licences, it was not the Minister’s issuing authority which was in dispute, but his authority to attach terms and conditions to the hake trawl fishing licences. The Minister was not required to deal with each licence individually and to designate specific landing locations for each vessel different from the specific landing locations for other vessels. However, the landing conditions on their face were a valid exercise of the authority which has been subdelegated to the Minister. If the actions of the Minister can be justified as having proceeded in consideration of relevant matters, even though based in part on some irrelevant and less relevant matters, the exercise of authority will be found to be valid. Section 32 of the Fishery (General) Regulations deals with the transhipment of fish from a Canadian fishing vessel, which is prohibited unless the vessel to which the fish are transferred is licensed under the Coastal Fisheries Protection Regulations. That provision is a complete answer to the plaintiffs’ arguments with respect to the invalidity of the licence conditions which the Minister has imposed.

3) Provisions of both the Free Trade Agreement (FTA) and the North American Free Trade Agreement (NAFTA) require that the signatory parties not impose export restrictions on goods destined for the territory of the other country(ies). Parliament has “approved” both agreements without declaring them to be part of Canadian domestic law. The various provisions of the Coastal Fisheries Protection Act, the Fisheries Act and the related regulations are not so ambiguous as to require the assistance of the provisions of FTA and NAFTA to interpret them. In refusing to issue permits to the plaintiffs’ fish processing vessels in order to put pressure on the United States government, the Minister exceeded the jurisdiction conferred on him by the Coastal Fisheries Protection Act.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act to amend the Coastal Fisheries Protection Act, S.C. 1994, c. 14.

Canada-United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65, ss. 5, 8, Schedule—Part A, Art. 407(1), 1201.

Canada-United States Tax Convention Act, 1984, S.C. 1984, c. 20.

Coastal Fisheries Protection Act, R.S.C., 1985, c. C-33, ss. 2, 3, 6 (as am. by S.C. 1992, c. 1, s. 43).

Coastal Fisheries Protection Regulations, C.R.C., c. 413, ss. 5(1) (as am. by SOR/85-527, s. 3; 86-939, s. 2), 6 (as am. by SOR/80-186, s. 2; 85-527, s. 4), 7 (as am. by SOR/80-186, s. 3; 85-527, s. 5), 7.1 (as enacted by SOR/79-713, s. 5), 8 (as am. idem, s. 6; 80-186, s. 4; 85-527, s. 6), 9 (as am. by SOR/86-939, s. 3).

Export and Import Permits Act, R.S.C., 1985, c. E-19, ss. 5(1), 8(1).

Fisheries Act, R.S.C. 1970, c. F-14, ss. 34(g) (as am. by R.S.C. 1970 (1st Supp.), c. 17, s. 4), (m), 48.

Fisheries Act, R.S.C., 1985, c. F-14, ss. 7, 43(a),(b),(c),(f),(g),(j),( l),(m) (as am. by S.C. 1991, c. 1, s. 12).

Fishery (General) Regulations, SOR/93-53, ss. 3 (as am. by SOR/94-296, s. 1), 22(1) (as am. by SOR/93-333, s. 4), 32, 65 (as enacted by SOR/94-296, s. 2), 66 (as enacted idem), 67 (as enacted idem), 68 (as enacted idem).

Foreign Missions and International Organizations Act, S.C. 1991, c. 41.

Free Trade Agreement between Canada and the United States of America, S.C. 1988, c. 65, Schedule, Part A, Art. 407(1), 1201.

General Agreement on Tariffs and Trade, October 30, 1947, [1948] Can. T.S. No. 31, Art. XI, XX.

Geneva Conventions Act, R.S.C., 1985, c. G-3.

Magnuson Fishery Conservation and Management Act, 16 U.S.C. § 1801-1858 (1988).

Miscellaneous Statute Law Amendment Act, 1991, S.C. 1992, c. 1, s. 43.

North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, [1994] Can. T.S. No. 2, Art. 309(1) (not yet published).

North American Free Trade Agreement Implementation Act, S.C. 1993, c. 44, ss. 6, 10.

Treaty Between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon, January 28, 1985, [1985] Can. T.S. No. 7.

United Nations Foreign Arbitral Awards Convention Act, S.C. 1986, c. 21.

CASES JUDICIALLY CONSIDERED

APPLIED:

Peralta et al. and The Queen in right of Ontario et al., Re (1985), 49 O.R. (2d) 705; 7 O.A.C. 283 (C.A.); affd [1988] 2 S.C.R. 1045; (1988), 66 O.R. (2d) 543; 56 D.L.R. (4th) 575; 89 N.R. 323; 31 O.A.C. 319.

DISTINGUISHED:

R. v. Mark, [1989] B.C.J. No. 962 (Co. Ct.) (QL); R. v. Roach, [1991] B.C.J. No. 751 (C.A.) (QL).

CONSIDERED:

R. v. Tenale et al. (1982), 145 D.L.R. (3d) 521; 42 B.C.L.R. 91; 3 C.C.C. (3d) 254 (B.C.C.A.); Canada—Measures Affecting Exports of Unprocessed Herring and Salmon (1987-1988), BISD 355/98.

REFERRED TO:

Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; (1982), 137 D.L.R. (3d) 558; 44 N.R. 354; Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247 (1994), 17 Admin. L.R. (2d) 121 (C.A.); Reference as to whether members of the Military or Naval Forces of the United States of America are exempt from Criminal Proceedings in Canadian Criminal Courts, [1943] S.C.R. 483.

AUTHORS CITED

Driedger, E. A. “Subordinate Legislation” (1960), 38 Can. Bar Rev. 1.

Driedger, E. A. The Composition of Legislation. Legislative Forms and Precedents, 2nd ed. Ottawa: Dept. of Justice, 1976.

Gotlieb, A. E. Canadian Treaty-Making. Toronto: Butterworths, 1968.

Hogg, Peter W. Constitutional Law of Canada, 3rd ed. Toronto, Carswell, 1992.

Keyes, J. M. Executive Legislation: Delegated Law- Making by the Executive Branch. Toronto: Butterworths, 1992.

Kindred Hugh M. et al. International Law Chiefly as Interpreted and Applied in Canada, 4th ed. Toronto: Emond Montgomery, 1987.

Richard, J. D. Working With NAFTA: Maximizing the Benefits, Dispute Settlement Mechanisms in NAFTA. Canadian Bar Association, Ontario Branch, Continuing Legal Education, 1994.

APPLICATION to set aside a refusal by the Minister of Fisheries and Oceans to license fishing vessels to enter Canadian fisheries waters if operating under the flag of a country which does not cooperate with Canadian fisheries conservation objectives. Refusal declared invalid.

COUNSEL:

Christopher Harvey and Kevin Price for plaintiffs.

George C. Carruthers and David Prest for defendants.

SOLICITORS:

Russell & DuMoulin, Vancouver, for plaintiffs.

Deputy Attorney General of Canada for defendants.

The following are the reasons for order rendered in English by

Reed J.: This dispute concerns the refusal of the Minister of Fisheries and Oceans (the Minister) to license foreign fishing vessels to enter Canadian fisheries waters if they operate under the flag of a country which does not co-operate with Canada’s fisheries conservation objectives. Two of the plaintiffs,[1] Golden Alaska Fisheries Inc. and Supreme Alaska Fisheries Inc., are owners of foreign fish processing vessels (the U.S. processing vessels). They have been refused licences to enter Canadian waters because the United States is a country which does not cooperate with Canada’s fisheries objectives.

The plaintiffs also challenge the conditions which the Minister has attached to the hake fishing licences of Canadian fishing vessels. These require that catches of hake be either landed at a location within Canada or delivered to a fish processing vessel which has been licensed by the Minister to enter Canadian waters. The plaintiffs, other than the owners of the U.S. fish processing vessels, are the owners of Canadian fishing vessels which are licensed to fish for hake. Prior to the attaching of the challenged conditions to their licences, the catches of the Canadian vessels could be sold “over-the-side”[2] to the U.S. vessels. The Canadian vessels were not prevented from crossing into United States waters and delivering their catches to the U.S. processing vessels in this manner.

The particular hake fishery in question is located off the southwest coast of Vancouver Island. The Minister issues licences to enter Canadian waters to processing vessels from several foreign countries including Poland, Russia, Korea and Japan. Such licences are issued to the extent that there is hake catch surplus to that which can be processed by Canadian processing facilities. The Canadian facilities are, in general, land-based since it has been Canadian government policy to encourage the development of shore-based processing capacity by prohibiting delivery to Canadian processing vessels. Indeed, it appears from the evidence that only one such vessel exists. It is small and processes only its own catch.

The U.S. processing vessels are “state-of-the-art.” Because of their greater efficiency, the hake caught by Canadian fishing vessels would likely be sold for a higher price if sales could be made to the U.S. vessels. To more easily distinguish the licences to enter Canadian waters, from the licences to catch fish I will hereinafter refer to the former as “permits.”

The plaintiffs’ challenge can be categorized under three headings. Firstly, the Minister does not have the authority to refuse permits to enter Canadian waters to a whole class of foreign fishing vessels, on the basis on which he has acted. Secondly, the Minister does not have authority to attach the conditions to the Canadian vessel fishing licences which require that catches of hake be landed either at a location within Canada or delivered to a processing vessel which has been issued a permit to enter Canadian waters. Alternatively, if he has authority to impose these types of conditions, he improperly fettered his discretion in this case by taking into account extraneous considerations. Thirdly, counsel argues that the Minister acted without authority because the cumulative effect of his actions is to impose a restriction on exports which is contrary to the North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, [1994] Can. T.S. No. 2 (not yet published) (NAFTA) and the Free Trade Agreement between Canada and the United States of America [S.C. 1988, c. 65, Schedule, Part A] (FTA).

Permits to Enter Canadian Waters—Foreign Processing Vessels

a)         Statutory Provisions

Section 3 of the Coastal Fisheries Protection Act[3] prohibits all foreign fishing vessels, and this includes foreign fish processing vessels,[4] from entering Canadian fisheries waters unless authorized by the Act or regulations to do so:

3. No foreign fishing vessel shall enter Canadian fisheries waters for any purpose unless authorized by this Act or the regulations, any other law of Canada or a treaty.

Section 6 [as am. by S.C. 1992, c. 1, s. 43] of the Act confers upon the Governor in Council power to make regulations “for authorizing” the entry of foreign fishing vessels by means of permits and the imposing of terms and conditions therein:

6. The Governor in Council may make regulations

(a) for authorizing, by means of licences, permits or otherwise,

(i) foreign fishing vessels to enter Canadian fisheries waters for any purpose specified in the regulations,

…

(b) respecting the issuance, suspension and cancellation of any licences or permits provided for under paragraph (a) and prescribing their forms, the fees payable therefor and their terms and conditions, which are in addition to such terms and conditions, if any, as the Minister may specify therein;

(c) for appointing or authorizing persons to enforce the provisions of this Act and the regulations;

…

(e) generally for carrying out the purposes and provisions of this Act.

b)         Regulations

The Governor in Council exercised his authority under section 6 of the Coastal Fisheries Protection Act (the Act) and issued the Coastal Fisheries Protection Regulations (the Regulations).[5] In subsection 5(1) [as am. by SOR/85-527, s. 3; 86-939, s. 2] thereof, the Governor in Council authorized the Minister to issue permits allowing the entry of foreign vessels into Canadian waters for specified purposes, including for the purpose of processing fish at sea:

5. (1) The Minister may, on receipt of an application for a licence, issue a licence authorizing

(a) a foreign fishing vessel and its crew to enter Canadian fisheries waters for all or any of the following purposes, namely,

…

(ii) to tranship or take on board any fish, outfit or supplies while at sea,

(iii) to process fish at sea,

…

(viii) to purchase, load, unload, transship, sell or process fish or fish products at a Canadian port;

The Regulations also specify the kind of information which should be included in an application to enter Canadian waters (e.g., size of vessel, description of equipment, side number, radio frequencies used), and the terms and conditions of the permit and the fees payable therefor.

c)         Minister’s Decision

As has been noted, the Minister exercised the power, granted by the Regulations, and permitted some foreign processing vessels to enter Canadian waters for the purpose of processing fish. He has refused, however, to issue a permit to U.S. processing vessels and U.S. fishing vessels generally because the United States is “not cooperating with Canada’s fisheries conservation objectives.” The Minister’s decision to refuse to issue permits to the U.S. processing vessels was taken pursuant to what is called the Port Access Policy.[6]

The evidence put before the Minister for the purpose of making the decision, in the case of the application by the owners of the two U.S. fish processing vessels who are plaintiffs, was that the United States was not co-operating with Canada in that:

(i) U.S. fishermen have been sighted fishing on the Nose and Tail of the Grand Banks, contrary to the international conservation measures established by NAFO [Northwest Atlantic Fisheries Organization];

(ii) the United States and Canada are in a dispute concerning their respective catch shares for the transboundary Pacific hake resource;

(iii) the United States has not implemented the central principles of the Pacific Salmon Treaty [Treaty Between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon, January 28, 1985, [1985] Can. T.S. No. 7].

The Minister refused to issue permits to the U.S. processing vessels, then, because United States flag vessels were over-fishing straddling stocks on the eastern coast of Canada, the United States had not accepted Canada’s position with respect to its share of transboundary pacific hake and the United States had not implemented a treaty respecting pacific salmon.

Counsel notes that there is nothing the applicants can do to bring themselves within the criteria which the Minister has “legislated.” The criteria do not relate, for example, to the size of the vessels, the equipment thereon, the crew’s or owner’s past behaviour, the amount of hake to be caught or the location in which the vessels operate. The applicants are refused a permit because the country whose flag their ships carry has been determined to be one which does not cooperate with Canada’s fisheries conservation objectives. There is no doubt that the policy of refusing permits to U.S. vessels is designed to put pressure on the United States government to cooperate with Canadian government policies.

The merits of the particular action taken by the Minister are not in dispute. The question is whether the decision he has taken falls within the authority conferred upon him by the wording of the relevant provisions of the Act and Regulations.

d)         Decision—Legislative or Administrative in Nature

Counsel for the plaintiffs argues that the Minister’s decision is a legislative one, adopting general rules of conduct for classes of vessels and as such is outside his subdelegated authority.

Counsel for the defendants argues that the Minister’s decision is an administrative one, which he has taken in the exercise of his discretion pursuant to a policy which it is within his authority to adopt.

I do not find it particularly useful to characterize the Minister’s action as administrative or legislative. As is the case in other areas of administrative law, drawing distinctions between decisions on the basis of this kind of compartmentalizing can lead to a somewhat sterile debate. It certainly leads to endless argument. The question is always an evaluation of the particular action the Minister has taken, viewed in the context of the scope of authority given to the Minister under the relevant statute and regulations.

e)         Minister’s Permit Issuing Authority

As can be seen from the provisions quoted above, no authority to issue permits to vessels to allow them to enter Canadian waters is conferred upon the Minister by the Act directly. This can be contrasted, for example, with the express authority conferred under the Fisheries Act[7] with respect to fishing licences. In that case, the Minister’s authority is explicit and it is to issue licences “in his absolute discretion.”

The absence of any explicit conferral of authority to issue permits by the Act can also be contrasted with the authority which exists with respect to attaching conditions to the permits to enter Canadian waters. Paragraph 6(b) of the Act describes the terms and conditions which the Governor in Council may prescribe as being “in addition to such terms and conditions, if any, as the Minister may specify.” The phrase, “in addition to such terms and conditions, if any, as the Minister may specify” was added to paragraph 6(b) of the Act by the Miscellaneous Statute Law Amendment Act, 1991, S.C. 1992, c. 1, s. 43.[8] No amendment was made, however, to expressly refer to, grant, or define the Minister’s permit issuing authority.

Despite the rather strange lacuna in the legislative scheme, with respect to the issuing of permits to enter Canadian waters, I am persuaded that the Minister’s authority in this regard is implicit in the wording of the Act. It is not suggested that the Governor in Council was meant to deal with each permit application himself. As a matter of practical necessity subdelegation to the Minister or to some other person would be required. The question then becomes, in the absence of any express conferral of issuing authority by the Act, and in the absence of any express definition thereof, what is the extent of the Minister’s authority to establish the criteria upon which such permits will be issued?

f)          Eligibility Criteria for Obtaining a Permit—Power of the Governor in Council

Counsel for the plaintiffs argues that, while the Minister may have authority to issue permits, the criteria upon which such permits are to be issued must be established by the Governor in Council. The Governor in Council is given authority, by the Act, to make regulations “respecting the issuance of permits,” not the Minister.

I am not persuaded that the Minister has no authority to set eligibility criteria. That is too categorical a position. If the Minister has authority to issue permits to enter Canadian waters he must also have some authority to establish some criteria according to which the permits are to be issued. The Minister must adopt some criteria if he is to make a choice between applicants. The adopting of such criteria is necessarily incidental to the exercise of his issuing authority.

That the Minister has a subdelegated power to establish criteria also follows from an analysis of the regulation-making power given to the Governor in Council. The regulation-making power is described differently with respect to the different types of powers which are granted. The Governor in Council is given authority: (1) “for authorizing” foreign vessels to enter Canadian fisheries waters, by permit, for purposes specified in the regulations; (2) “respecting” the issuance, suspension and cancellation of permits; and (3) “prescribing” the forms, fees and terms and conditions attaching to permits. The jurisprudence indicates that when the Governor in Council is given power to “prescribe” (“déterminer”) certain matters there is no right to subdelegate that authority to another. The Governor in Council and only the Governor in Council can exercise the authority.[9] When, however, power to make regulations is given “respecting” (concernant) certain matters, there is room for subdelegation.[10] I accept the argument that an over-emphasis on the particular “link” word chosen by the drafter of the legislation is not always a compelling method of interpreting a statutory provision: see J. M. Keyes, Executive Legislation (Butterworths, 1992), at page 259. At the same time, in this case, three different types of authority have been conferred and that which relates to the issuance of permits does not specifically preclude subdelegation. Rather, it invites the conclusion that such was intended. The question remains what is the scope of that authority?

g)         Eligibility Criteria for Obtaining a Permit—Scope of Minister’s Authority

Counsel for the plaintiffs argues that one cannot conclude that the Minister was intended to exercise subdelegated authority to establish eligibility criteria for the issuance of permits, on the basis of broad political policy objectives. Firstly, the statute is completely silent as to the conferral of any authority on him. Secondly, the statute requires that matters of minutia[11] (the form of applications and permits, the fees to be paid therefor) can only be established by the Governor in Council. In the face of these statutory provisions, it is argued that the scope of his implied authority to establish criteria for the issuing of permits must be narrowly construed.

Counsel for the defendants, on the other hand, argues that the Minister’s discretion is exceptionally broad. This, it is said, follows from the fact that the Act creates an absolute prohibition against entry into Canadian fisheries waters, which is a recitation of a basic principle of international law—entry by non-nationals into another country’s jurisdiction is a privilege not a right. Thus, it is argued, the Minister’s discretion to grant or refuse permits, in the absence of any explicit restrictions thereon, can be exercised on the basis of broad social, cultural and economic as well as political policies and goals. It is argued that this broad scope of authority also flows from the wording of paragraph 6(a) of the Act, which grants the Governor in Council authority to “make regulations … for authorizing by means of … permits … foreign fishing vessels to enter Canadian fisheries waters for any purpose specified in the regulations” (underlining added). Lastly, it is argued that in any event an exercise of discretion for the purposes of pressuring the United States government into co-operating with Canada’s objectives is within the scope and objectives of the Act.

I am not persuaded that merely because the Act creates an absolute prohibition within the context of which the Minister grants exemptions by issuing permits, that the Minister, in choosing between applicants for entry, may base his decision on broad social, cultural, economic and other policy objectives and goals. This is particularly so when the Minister’s authority, itself, is not defined in any way by the Act and flows only from an implied authority of the Governor in Council to subdelegate. I do not think that the decisions in either Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2 or Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247(C.A.) stand for the proposition that because a Minister is granting an exemption from a general prohibition against importing into the country, that the scope of discretion attaching thereto is very broad and general. In both of the cases mentioned above, the Minister was exercising authority expressly granted to him by the relevant Act, the Export and Import Permits Act.[12] In the former case, as well, the fundamental issue was whether there was a duty to issue a permit to allow importation into the country. While counsel for the plaintiffs may have tried, in the present case, to argue that such a duty exists, this is clearly not a tenable argument.

I turn, then, to counsel for the defendants’ argument that a broad scope of authority flows to the Minister as a result of the wording of paragraph 6(a) of the Act. As has been noted, it authorizes the Governor in Council to “make regulations… for authorizing [entry] … for any purpose specified in the regulations” (underlining added). I do not read the excerpts, from the academic writings referred to, in the same way as counsel does. In the text by E. A. Driedger, The Composition of Legislation. Legislative Forms and Precedents, 2nd ed. (Ottawa: Department of Justice, 1976), at pages 192-193, the following is found:

… where Parliament authorizes regulations for a stated purpose, the regulation-making authority has a free hand to establish, not only the details, but also the main principles. The entire law is therefore to be left to the decision of subordinates. So long as the law is within the stated purpose, it cannot be challenged.

…

The distinction between purposes or subjects, on the one hand, and powers on the other, is also relevant in relation to sub-delegation. For example, if a Minister had power to make regulations respecting tariffs and tolls he could authorize some other person to fix a tariff or toll; such a regulation would clearly be one respecting tariffs and tolls. But if the Minister’s authority is to make regulations prescribing tariffs and tolls then the Minister must himself prescribe, and cannot delegate that authority to another. [Underlining added.]

These same comments are also found in E. A. Driedger, “Subordinate Legislation”, 38 Can. Bar. Rev. 1, at pages 29-31 (1960).

I have accepted counsel’s argument that the Governor in Council’s authority, to make regulations “respecting” the issuance of permits, allows for a subdelegation of issuing authority to the Minister. I do not agree, however, that the authority to make regulations “for authorizing [entry] … for any purpose specified in the regulations” means that broad authority to establish not only the details but the principles of the entire law can be conferred on the Minister. Professor Driedger’s comments, quoted previously, were: “where Parliament authorizes regulations for a stated purpose, the regulation making authority has a free hand” (underlining added). Thus while the regulation-making authority, i.e., Parliament’s delegate or subordinate, which in this case is the Governor in Council, may have considerable scope to make regulations on the subject, as a result of having been “authorized,” this does not mean that a comparable breadth of authority can be conferred by the Governor in Council upon a subdelegate.

In order to accept counsel for the defendants’ argument, it seems to me, I must find that a provision of a statute which states that the Governor in Council may make regulations for authorizing, by means of permits, foreign vessels to enter Canadian fisheries waters, carries with it authority for the Governor in Council to confer upon the Minister authority to refuse to issue permits, to certain vessels, in order to pressure a foreign government to co-operate with Canada in international negotiations and because nationals of that same country are over-fishing on a different coast with respect to a different fishery. I also have to conclude that the Governor in Council in fact conferred such broad authority on the Minister. I do not read the Act or Regulations in that way.

I turn, then, to a consideration of the statutory purpose of the Act and Regulations to determine whether the eligibility criterion which the Minister adopted flows therefrom. As I read the Act and the Regulations, they are intended to prevent over-fishing (the catching of too many fish). They are intended to aid in policing Canada’s fisheries in this regard. The Act and Regulations, for example, require that all fishing vessels which pass through Canadian waters be identified and their presence made known to Canadian authorities. They make unauthorized fishing by the crews of foreign vessels criminal offences. However, the commercial disposition of the fish, once they are caught, is not relevant to the purposes of that statute except to the extent that verification of the quantities of fish caught is necessary for the enforcement of the rules which regulate those quantities.

There is no dispute that the quantities of fish caught are in no way affected by the delivery of the catches of hake to U.S. processing vessels, rather than to those of other nations. The number of fish caught, the observance of anti-pollution standards by the vessels are no less in conformity with Canadian legislation when the fish are delivered to the U.S. processors than when delivered to others. I do not find in the legislation any indication that it was intended to be used by the Minister to buttress his stance internationally when negotiating with other nations on Canada’s fisheries objectives. I am persuaded that counsel for the plaintiffs’ argument must prevail—the Minister exceeded his authority and the Minister’s rejection of the applications for permits to enter Canadian waters should be set aside.

It is important to emphasize, again, that the merits of the Minister’s decision are not in dispute. Most Canadians, I suggest, would find his actions laudable. The question is one of principle: the degree of specificity with which subdelegated powers must be defined. The further a subdelegate is removed from the primary delegating body, Parliament, the less immediate is its accountability to the electorate. More importantly, perhaps, is the absence of any guaranteed opportunity for advance notice and public debate before a decision is taken. (Even the issuing of regulations is now preceded by a requirement for advance publication and explanation by way of a Regulatory Impact Assessment Statement.) The law has long set its face against ill-defined powers of subdelegation and interpreted such strictly. Decision-making by subdelegates, based on broad and undefined powers, can too easily lead to the real reasons for a decision being obscured (although such is not the situation in this case); such authority can too easily be exercised in an unfair manner.

By way of addenda to the arguments respecting the permits, I should note that I have not found it necessary to consider the defendants’ argument based on the Magnuson Act of the United States.[13] I do not think it is relevant to the interpretation of our Act and Regulations. What is more, there is no evidence, as I understand it, that Canada has ever sought reciprocal treatment from the United States of the kind in issue. In addition to not considering the argument relating to the Magnuson Act, I have not dealt with counsel for the plaintiffs’ argument concerning the recent amendments, to the Act, to specifically provide for the exclusion of classes for foreign fishing vessels (by nationality) from fishing for straddling stocks on the east coast.[14] I am not convinced that it is relevant to the issues before me.

Vessel Fishing Licence Conditions

In the case of the Canadian fishing vessel licences, it is not the Minister’s issuing authority which is in dispute, it is the scope of his authority to attach terms and conditions to the licences. As has been noted, under the Fisheries Act, the Minister is given authority to issue fishing licenses, “in his absolute discretion.”[15] Nothing is expressly said in the Fisheries Act, however, about the scope of his authority to attach terms and conditions to such licences.

a)         Statutory Provisions

Section 43 of the Fisheries Act authorizes the Governor in Council to make regulations for carrying out the purposes and provisions of that Act, including issuing regulations:

43. …

(a) for the proper management and control of the sea-coast and inland fisheries;

(b) respecting the conservation and protection of fish;

(c) respecting the catching, loading, landing, handling, transporting, possession and disposal of fish;

…

(f) respecting the issue, suspension and cancellation of licences and leases;

(g) respecting the terms and conditions under which a licence and lease may be issued;

…

(j) respecting the export of fish or any part thereof from Canada;

…

(l) prescribing the powers and duties of persons engaged or employed in the administration or enforcement of this Act and providing for the carrying out of those powers and duties; … [Underlining added.]

(b)       Regulations

Pursuant to the authority given under section 43 of the Fisheries Act, the Governor in Council issued the Fishery (General) Regulations, SOR/93-53. Subsection 22(1) (as amended by SOR/93-333, s. 4) thereof provides:

22. (1) For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify in a licence any condition that is not inconsistent with these Regulations or any of the Regulations listed in subsection 3(4) and in particular, but not restricting the generality of the foregoing, may specify conditions respecting any of the following matters:

(a) the species of fish and quantities thereof that are permitted to be taken or transported;

(b) the age, sex, stage of development or size of fish that are permitted to be taken or transported;

(c) the waters in which fishing is permitted to be carried out;

(d) the location from which and to which fish is permitted to be transported;

(e) the vessel from which and to which fish is permitted to be transhipped;

(f) the period during which fishing or transporting fish is permitted to be carried out;

…

(m) the location and times at which landing of fish from the vessel is permitted; [Underlining added.]

c)         Minister’s Decision

Prior to the 1992 fishing season the conditions which were attached to groundfish trawl licences by the Minister allowed the licence holders to choose among a number of landing options (hake is a species of groundfish). One of these allowed the catch to be delivered at designated locations in the United States. In addition, as has been noted, there was nothing preventing the Canadian fishing vessels from moving outside Canadian waters and selling over-the-side to U.S. fish processing vessels located on the other side of the Canada—United States boundary. As has also been noted, the U.S. processing vessels, whose owners are plaintiffs in this case, received hake from Canadian fishing vessels in this manner.

Section 8 of the conditions which are attached to the Canadian fishing vessel licences, by the Minister, was subsequently amended to effectively prevent this activity and to prevent the landing of hake at United States ports:

Section 8 under the heading “Location permitted for landing of fish” is amended by replacing paragraph (d) with the following:

All Pacific hake caught outside of the Exemption Area shall be:

(i)   transhipped to a foreign fishing vessel licensed under the Coastal Fisheries Protection Regulations to take on board the fish; or

(ii)  landed at one of the following locations:

Hi-To Fisheries, Government Wharf, Sooke

Johnston Fishing & Packing Ltd., Port Hardy

SM Products Ltd., Ladner

Pacific Coast Processors, Ucluelet

North Sea Products Ltd., Vancouver

Ucluelet Seafood Processors Ltd., Ucluelet

d)         Limitations on Minister’s Authority to Attach Terms and Conditions to Licences Arising as a Result of Powers Conferred on the Governor in Council

The plaintiffs’ argument is based on the decisions in R. v. Tenale et al. (1982), 145 D.L.R. (3d) 521 (B.C.C.A.); Peralta et al. and The Queen in right of Ontario et al., Re, (1985), 49 O.R. (2d) 705 (C.A.); affd [1988] 2 S.C.R. 1045; R. v. Mark [[1989] B.C.J. No. 962 (QL)] (May 12, 1989, Prince Rupert Co. Ct. Nos. 10467 and 10997 unreported) and R. v. Roach [[1991] B.C.J. No. 751 (QL)] (March 22, 1991, B.C.C.A. Nos. CA010739 and CA010936, not reported). As has been noted above, with respect to the permits to enter Canadian waters, I do not find the characterization of decisions as being legislative or administrative a particularly helpful one. At the same time this distinction is repeatedly referred to in the jurisprudence, discussed below.

In R. v. Tenale et al., paragraph 34(m) of the Fisheries Act [R.S.C. 1970, c. F-14] (now paragraph 43(m) [as am. by S.C. 1991, c. 1, s. 12]) was in issue. Paragraph 34(m) provided that the Governor in Council could make regulations “authorizing a person engaged or employed in the administration or enforcement of … [the] Act to vary any close time or fishing quota that has been fixed by the regulations.” This was held not to be broad enough to allow a Minister to issue an order prohibiting fishing in certain specified waterways during specified periods of time.[16] The British Columbia Court of Appeal held that neither paragraph 34(m) nor any other provision of section 34 contemplated that the Governor in Council would pass on the authority to make such an order to a subdelegate. Authority to make this kind of decision was reserved to the Governor in Council.

In Peralta, paragraph 34(g) [as am. by R.S.C. 1970 (1st Supp.), c. 17, s. 4] (now paragraph 43(g) of the Fisheries Act) was in issue. Paragraph 34(g) provided that the Governor in Council could make regulations “respecting the terms and conditions under which a … licence may be issued.” The Ontario Court of Appeal held that pursuant to that paragraph, the Minister could impose fishing quotas in individual fishing licences, for specific species. It was held that since the paragraph allowed the Governor in Council to make regulations “respecting” the terms and conditions under which a licence might be issued, authority with respect thereto could be subdelegated. This was distinguished from authority given to the Governor in Council to “prescribe” or “fix” terms and conditions. In those cases it was held that only the Governor in Council could exercise the authority. The paragraph was interpreted as allowing a subdelegation of administrative authority.[17] In Peralta, the Court of Appeal noted that the Governor in Council had not abdicated all his power to the Minister for he had set general conditions applicable to commercial fishing to gill-nets and trawl-nets, established global quotas for commercial fishing of particular species from particular waters, and set minimum sizes. It was within that framework that the Minister had acted imposing individual quotas, in individual licences, with respect to the individual species. The Supreme Court affirmed that decision for the reasons given by the Court of Appeal.

The more recent Mark and Roach cases apply the Tenale and Peralta decisions. In Mark (No. 10467), it was held that paragraph 34(g) did not authorize the Minister to make it a condition of a fishing licence that the licence holder had to record in his log records the management sub-areas in which he was fishing. In Mark (No. 10997), it was held that the Minister did not have authority to make it a condition of a fishing licence that the licence holder report his catch by radio-telephone (a hail report). Section 48 of the Fisheries Act provides for the reporting of catch data and the terms set out therein provided for a different system of reporting than was set out in the licences. In addition the Court found that the conditions in the licences were general rules of conduct applicable to all licence holders and this amounted to the imposition of an obligation on all licence holders—the exercise of a legislative function which could not be subdelegated without express authority. In the Roach (CA010739) and Mark (CA010936) cases, the British Columbia Court of Appeal upheld the finding that the conditions respecting log records and hail reports could not be attached by the Minister as conditions to fishing licences. It was held that the regulation which authorized the Minister to attach “any other terms and conditions,” that is other than those provided for by regulation, was an ultra vires subdelegation of power.

I turn then to assess the conditions which the Minister has added to the hake trawl fishing licences in the light of this jurisprudence.

I do not think I need to consider the Mark and Roach cases. While those cases commented on the scope of authority granted to the Minister (administrative and not legislative), the main focus was that the conditions which were being imposed by the Minister went beyond, and were arguably different from, the conditions required, for reporting a catch, found in the Fisheries Act itself. It is trite law that delegated authority, be it legislative or administrative, cannot be used to derogate from the terms of the empowering Act unless such authority is expressly given.

Thus, it is the Tenale and the Peralta decisions which I must consider. The Peralta decision being later in time and having been confirmed by the Supreme Court of Canada, I shall consider it as being the more pertinent. In addition, it relates to the identical provision under consideration in this case, paragraph 43(g) of the Fisheries Act.

In my view the conditions which are attached to the licences in this case fit within the Peralta decision. Counsel for the plaintiffs’ argument amounts to a requirement that the Minister deal with each licence individually and designate specific landing locations for each vessel different from the specific landing locations for other vessels. It is argued that this would be an administrative decision and properly the subject of subdelegation. I am not persuaded that such a degree of detail is required. The licence conditions relate to only the hake fishery. The licence holders are obliged to choose between landing options and each set of conditions relates to a subset of hake licence holders. The licence holders apply on an individual basis for an exemption which allows them to deliver fish to foreign licensed processing vessels. The power granted to the Governor in Council is framed as a power “respecting” the terms and conditions of a licence. I am persuaded that the landing conditions on their face are a valid exercise of the authority which has been subdelegated to the Minister.

e)         Minister’s Authority Used for an Extraneous Purpose

I turn then to the argument that even if the Minister was properly delegated authority he exercised that authority improperly in this case because he exercised it for the purpose of excluding transfers to U.S. land-based locations and U.S. fish processing vessels, for reasons unrelated to the specific purposes of the Fisheries Act. It is argued that the conditions in the licences do not have as their purpose “the proper management and control of fisheries and the conservation and protection of fish.” The conditions were imposed, it is argued, to put political pressure on the United States government and are unrelated to the specific characteristics or past conduct of the U.S. processing vessels. In addition, the landing conditions contravene NAFTA and FTA, about which more will be said later.

I note first of all that paragraph (m) of subsection 22(1) of the Fishery (General) Regulations specifically grants the Minister power to designate the locations at which fish may be landed. Paragraphs (d) and (e) grant authority to put conditions in licences respecting the transhipment of and locations between which fish may be transported. On the basis of decisions such as that in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, and Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247(C.A.), if the actions of the Minister can be justified as having proceeded in consideration of relevant matters, even though based in part on some irrelevant and less relevant matters, the exercise of authority will be found to be valid.

In any event, in this case, even if the Minister’s motive in requiring landing in Canada was for reasons outside the purposes of his authority, the plaintiffs are not helped thereby. As I understand the evidence, they do not want landings to take place at land-based locations within the United States but to their processing vessels. Subsequent to argument before me I noticed that section 32 of the Fishery (General) Regulations, SOR/93-53 states:

32. No person shall trans-ship any fish from a Canadian fishing vessel to a foreign fishing vessel unless that foreign fishing vessel is licensed under the Coastal Fisheries Protection Regulations to take on board the fish. [Underlining added.]

Section 32 is found in Part IV of the Fishery (General) Regulations. Section 3, as amended by SOR/94-296, s. 1, describes the scope of applicability of Parts I to VIII. The provisions founds in those Parts apply to:

3. …

(a) fishing and related activities in Canadian fisheries waters off the Atlantic, Pacific and Arctic coasts;

(b) fishing and related activities in the provinces of Nova Scotia, New Brunswick, British Columbia, Prince Edward Island and Newfoundland and in the Yukon Territory and Northwest Territories; and

(c) fishing and related activities carried out in waters other than Canadian fisheries waters from vessels subject to the jurisdiction of Canada. [Underlining added.]

As I read section 32 in the light of section 3, the prohibition against transferring fish over-the-side to unlicensed vessels is not merely imposed as a result of the conditions attached to the fishing licences by the Minister but is also imposed directly by the Governor in Council by regulation. I must note that neither counsel for the plaintiffs nor counsel for the defendants initially interpreted section 32 of the Fishery (General) Regulations as I do. From representations recently received, however, I understand that counsel for the defendants now shares this view.

Counsel for the plaintiffs argues that section 32 can only apply in Canadian fisheries waters because it is only within those waters that Canada has jurisdiction to require that foreign vessels be licensed (obtain a permit). It is argued that the only foreign vessels who apply for and obtain permits under the Coastal Fisheries Protection Act are those that come into Canadian waters and, thus, section 32 only applies within Canadian fisheries waters. I am not convinced that this is relevant to the scope of application of section 32. A foreign vessel may hold a permit under the Coastal Fisheries Protection Act but not necessarily spend all its time within Canadian waters. It may be physically located, at times, outside those waters. There would be no reason why the transhipment of the fish could not take place outside those waters if it was practical to do so. I do not understand why section 32 only applies within Canadian waters because only foreign vessels wishing to come into those waters apply for permits.

Counsel for the plaintiffs argues that section 32 can only be applicable to Canadian fisheries waters because sections 65 to 68 [as enacted by SOR/94-296, s. 2] found in Part XIII deal with transhipment of fish outside Canadian waters. I am not persuaded that the provisions are inconsistent. Section 32 deals with the transhipment of fish from a Canadian fishing vessel. This is prohibited unless the vessel to which the fish are transferred is licensed under the Coastal Fisheries Protection Regulations. Section 65 also deals with the transhipment of fish. It deals with transhipment outside Canadian waters by (or to) a vessel which is subject to the jurisdiction of Canada. Transhipment is prohibited unless a licence has been issued. Under both provisions transhipment is prohibited unless a licence has been granted. I have not been persuaded that section 65 operates so as to curtail the scope of section 32.

Counsel also argues that section 32 can only be interpreted as applicable to Canadian waters because if it is interpreted more broadly it would cover, for example, Canadian flag vessels fishing off the coast of another country under a licence from that country. I am not persuaded that this is a necessary result. The provision applies to “vessels subject to the jurisdiction of Canada.” I have not been referred to any definition of that phrase but it would certainly seem, at least, to cover Canadian fishing vessels disposing of fish caught in Canadian waters which have been caught pursuant to a licence issued under the Fisheries Act. There is both jurisdiction over the person and over the subject-matter. I note as well that part of the regulation-making power given to the Governor in Council by section 43 of the Fisheries Act is the authority to make regulations “(j) respecting the export of fish or any part thereof from Canada.”

The existence of section 32 in the Fishery (General) Regulations, it seems to me, is a complete answer to the plaintiffs’ arguments with respect to the invalidity of the licence conditions which the Minister has imposed.

Free Trade Argument

As has been noted, prior to the 1992 fishing season Canadian fishing vessels could move outside Canadian waters and deliver their catches of hake to U.S. processing vessels. With the changes to the landing conditions in the licences and, subsequently, in my view, the application of section 32 of the Fishery (General) Regulations, this was no longer possible. In the 1992 fishing season, the plaintiff owners of the U.S. processing vessels attempted to take delivery of stocks of hake, after they had been landed at a Canadian port. This was found to be uneconomic. Hake deteriorates rapidly and the delay occasioned by the off-landing and reloading made that procedure both uneconomic and impractical. It is argued that the cumulative effect of the refusal to issue permits allowing the U.S. processing vessels to enter Canadian waters together with the landing conditions attached to the Canadian fishing vessel licences offend the provision of the FTA and NAFTA. Indeed, it was argued that the landing conditions alone constitute such infringement.

a)         Restrictions on Export

Provisions of both the FTA and NAFTA require that the signatory parties not impose export restrictions on goods destined for the territory of the other country(ies). Article 407, paragraph 1 of the FTA states:

Article 407 …

1. Subject to the further rights and obligations of this Agreement, the Parties affirm their respective rights and obligations under the General Agreement on Tariffs and Trade (GATT) with respect to prohibitions or restrictions on bilateral trade in goods.

GATT [General Agreement on Tariffs and Trade, October 30, 1947, [1948] Can. T.S. No. 31] Article XI is headed “General Elimination of Quantitative Restrictions.” Paragraph (1) provides as follows:

1. No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party.

Paragraph 1 of Article 309 of NAFTA states:

Article 309 …

1. Except as otherwise provided in this Agreement, no Party may adopt or maintain any prohibition or restriction … on the exportation or sale for export of any good destined for the territory of another Party, except in accordance with Article XI of the GATT ….

I did not understand either counsel to suggest that the qualification in paragraph 1 of Article 407 of FTA “[s]ubject to the further rights and obligations of this agreement” or that in paragraph 1 of Article 309 of NAFTA “Except as otherwise provided in this agreement” are relevant for present purposes.

The plaintiffs’ argument relies on a decision by a Canada-United States Trade Commission Panel (FTA Panel).[18] The decision cited is Canada—Measures Affecting Exports of Unprocessed Herring and Salmon (1987-1988), BISD 355/98. That decision, in turn, makes reference to an earlier decision by the GATT Council. It found that Canada’s prohibition of the export of unprocessed herring and salmon violated the provisions of GATT: it violated Article XI, paragraph 1 and was not justified by paragraph 2(b) of Article XI or sub-paragraph (g) of Part I of Article XX. Canada accepted that decision and agreed to remove the prohibitions against export but asserted that some landing requirements were necessary to meet conservation and management goals. Regulations were introduced to require the landing in Canada of all roe herring, sockeye and pink salmon caught commercially in Canadian waters. The FTA Panel in the Canada-Measures case, cited above, held that such conditions were incompatible with Article 407 of the FTA and were not justified as a conservation measure under Article 1201.

The requirement to land the fish in Canada was held to constitute a restriction on “sale for export.” It imposed additional commercial burdens on U.S. purchasers as compared with those borne by Canadian purchasers. These arose as a result of the extra time involved in transporting the fish, the extra cost in landing and unloading, as well as possible dockage fees, and the product deterioration resulting from off-loading and reloading. All these factors, it was held, combined to place the U.S. processors at a competitive disadvantage in relation to their Canadian counterparts. The FTA Panel stated that where the primary effect of a measure is in fact the regulation of export transactions, the measure may be considered a restriction within the meaning of Article XI, paragraph 1 if it has the effect of imposing a materially greater commercial burden on exports than on domestic sales.

Counsel for the plaintiffs argues that that situation mirrors the present. In addition, he argues that the whole purpose of agreements such as the FTA and NAFTA is to remove commercial activity from the vagaries of politically motivated acts, which he asserts is the cause of his clients’ situation in this case.

b)         FTA and NAFTA—Part of the Law of Canada

Counsel for the defendants argues that FTA and NAFTA are not part of Canadian law. Those agreements are implemented by the Canada-United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65 (FTA Act) and the North American Free Trade Agreement Implementation Act, S.C. 1993, c. 44, (NAFTA Act). In one case (the FTA Act), the whole text of the agreement is included as part of the statute, in the other, the agreement is incorporated by reference. This difference is not relevant. There is no provision in either Act which expressly states that the Agreements are part of Canadian domestic law. Section 8 of FTA and section 10 of NAFTA each state only that “[t]he Agreement is hereby approved.”

Counsel for the defendants argues that sections 8 and 10 should be contrasted with provisions, for example, in the Canada-United States Tax Convention Act, 1984, S.C. 1984, c. 20, the United Nations Foreign Arbitral Awards Convention Act, S.C. 1986, c. 21 and the Foreign Missions and International Organizations Act, S.C. 1991, c. 41. The first two contain provisions which state that the relevant “Convention is approved and declared to have the force of law in Canada” (underlining added). The third also states that, with respect to certain articles of the relevant Convention, those articles shall “have the force of law in Canada in respect of all foreign states.” Since there is no express declaration in the FTA Act or the NAFTA Act stating that the respective agreements are “declared to have the force of law in Canada” it is argued that they do not form part of Canadian domestic law.[19]

Counsel for the plaintiffs, on the other hand, refers to the Geneva Conventions Act, R.S.C., 1985, c. G-3, which contains no express declaration that that convention shall be part of Canadian law, and to the Kindred and Castel text, International Law Chiefly as Interpreted and Applied in Canada, (4th ed.), at page 136. That text refers to the Geneva Convention as being part of the law of Canada. I note, as counsel for the defendants pointed out, that the Geneva Conventions Act directly incorporates the provisions of the Convention, by independently drafted provisions which form part of the body of the statute which follows. Thus, the inclusion of a clause expressly declaring the agreement to be law in Canada is not required.

With respect to the content of the FTA and NAFTA Acts, counsel for the plaintiffs and counsel for the defendants read them in diametrically opposite fashion. Counsel for the plaintiffs says that many of the provisions would not make sense if the agreements were not part of Canadian law. Counsel for the defendants argues that the same or different provisions indicate that they were not intended to be so.[20] In addition, the effect of the agreements having been “approved” by Parliament (sections 8 and 10, supra) is ambiguous. In the absence of any implementing legislation by Parliament, or a provincial legislature, an international agreement which is signed by Canada would be binding on Canada, internationally, although it would not be enforceable in the courts of this country. What then did Parliament intend to add to this situation, by “approving” the agreements but not declaring them to be part of our domestic law.[21]

After careful consideration of counsels’ arguments, I have come to the conclusion that asking whether or not the FTA and NAFTA are part of Canadian domestic law is to ask an unnecessary question and perhaps an irrelevant one. Parts of the Agreements clearly are part of domestic law. At the same time, even if the Agreements in their entirety were considered to be so, this would not make them enforceable in the domestic courts of this country. The question to be asked, with respect to any alleged breach of the agreements, is how is it intended that redress for such be obtained.

c)         Jurisdiction of this Court—Prohibitive Clauses

Both statutes contain what are referred to as prohibitive clauses. Section 5 of the FTA Act states:

5. No person has any cause of action and no proceedings of any kind shall be taken, without the consent of the Attorney General of Canada, to enforce or determine any right or obligation that is claimed or arises solely under or by virtue of Part I, or any regulation made under Part I, or the Agreement. [Underlining added.]

Section 6 of the NAFTA Act provides:

6. (1) No person has any cause of action and no proceedings of any kind shall be taken, without the consent of the Attorney General of Canada, to enforce or determine any right or obligation that is claimed or arises solely under or by virtue of part I …

(2) Subject to Section B of Chapter Eleven of the Agreement, no person has any cause of action and no proceedings of any kind shall be taken, without the consent of the Attorney General of Canada, to enforce or determine any right or obligation that is claimed or arises solely under or by virtue of the Agreement. [Underlining added.]

Counsel for the plaintiffs argues that while these clauses prohibit the Court entertaining a claim which arises solely under the respective Agreements, the present claim is not of that nature. He argues that reliance on the trade agreements is only brought in as an aid to the interpretation of the scope of the Minister’s authority. Counsel seeks to rely on the trade agreements to interpret ambiguous legislative provisions, i.e., the various provisions of the Coastal Fisheries Protection Act, the Fisheries Act and the related regulations referred to above. Counsel relies on the provisions of the FTA and NAFTA as support for his argument that the Minister lacks authority to refuse permits, on the ground on which he acted, and took into account extraneous considerations, when attaching the conditions to the fishing licences. Thus, counsel argues, the Agreements are being used in the same way that international law has always been used by Canadian courts, when it is not directly part of Canadian domestic law, to interpret domestic legislation so that it conforms as far as possible with Canada’s international obligations.[22]

Even if I accept that argument, if the text of the domestic legislation is clear, “there is no room for interpreting it into conformity with the international rule.”[23] I have not found the legislative provisions in question to be so ambiguous as to require the assistance of the provisions of FTA and NAFTA to interpret them. In the case of the permits, it is my view that the Minister exceeded the authority which had been given to him. In the case of the fishing licences, I am of the view that section 32 of the Fishery (General) Regulations expressly proscribes delivery to foreign vessels for which permits under the Coastal Fisheries Protection Act have not been issued. Thus, there is no ambiguity.

Conclusion and Remedies

I have concluded that when the Minister refused to issue permits to the plaintiffs’ processing vessels, in order to put pressure on the United States government, he exceeded the jurisdiction which had been conferred on him by the Coastal Fisheries Protection Act. While this means that those decisions should be set aside, this may give little comfort to the plaintiffs. While the Minister can be required to reconsider the plaintiffs’ applications for permits, there is no ground upon which mandamus can issue to require their issuance. Since I have found the conditions in the fishing licences to be valid no order need be given with respect to them.

The permits and licences in question all relate to the 1994 hake fishing season. That season ended long ago. It ended before the plaintiffs’ application was ready to be heard by the Court. The defendants, however, agreed that they would not argue that the plaintiffs’ application should be dismissed because it was moot. It is my understanding that part of the delay, in having the application heard, was a result of the defendants needing adequate time to properly prepare their case. I have been informed that it is in the interest of both parties to have a decision made with respect to the issues in question. In the circumstances, the most appropriate remedy is a declaration. A declaration will therefore issue, declaring invalid the Minister’s refusal of the requests by Golden Alaska Fisheries Inc. and Supreme Alaska Fisheries Inc. to have permits issued, pursuant to the Coastal Fisheries Protection Act, to permit vessels owned by them to enter Canadian fisheries waters.

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