Archived - Government Response to the Standing Joint Committee for the Scrutiny of Regulations' Sixth Report (Report No. 71) on the Aboriginal Communal Fishing Licences Regulations

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January, 2003


Introduction

The Standing Joint Committee for the Scrutiny of Regulations (SJC) tabled its Sixth Report (Report No. 71) in the Senate on May 30 and in the House on June 3, 2002. That Report is with respect to the Aboriginal Communal Fishing Licences Regulations (ACFLR).

The introductory comments to Report No. 71 emphasize that the SJC's interest lies solely in determining whether the means chosen to implement a particular government policy are lawful. Report No. 71 acknowledges that the Fisheries Act does in fact provide means of implementing the policy of the government.

In Report No. 71, the SJC considers the making of section 4 of the ACFLR (which authorizes the issuance of a communal licence to an Aboriginal organization) to involve an unlawful sub-delegation of the authority given to the Governor in Council by section 43 of the Fisheries Act. The SJC also considers section 6 (which provides that communal licence conditions prevail over provisions in other regulations made under the Fisheries Act to the extent of any inconsistencies) and section 7 (which requires compliance with a licence condition) to be ultra vires the Fisheries Act.

Report No. 71 concludes by requesting a comprehensive Government response to the Report. The Government has given serious consideration to Report No. 71. The Government has provided the SJC with a considerable amount of testimony and other information with respect to the ACFLR. For the reasons previously provided to the SJC, the Government does not share the views expressed in the Report. The Government continues to view the ACFLR as sound and properly authorized by the Fisheries Act. However, for greater certainty, the Government has taken and will take further action to address concerns of the SJC as explained below.

1.  Licensing Scheme and Sub-delegation

Report No. 71 considers the regulatory scheme in the ACFLR and the legal nature of the communal fishing licence. The SJC considers designations of individuals to fish under the communal licence to be, in nature if not in name, licences to fish. The SJC then goes on to say that, through the ACFLR, the Governor in Council did not authorize the Minister to "issue licences" but instead, authorized him to decide who should have the authority to issue such licences.

The SJC is of the view that the Fisheries Act, while it would permit the Governor in Council to confer on Aboriginal organizations authority to issue fishing licences, does not allow the Governor in Council to delegate to the Minister the power to confer authority to issue licences.

Report No. 71 states that under the Fisheries Act, if the authority to issue licences is to be granted to a person or entity other than the Minister, that decision belongs to the Governor in Council and it must take the form of a regulation.

Government Response

The Government is of the view that the Minister of Fisheries and Oceans can issue a licence to an aboriginal organization. The Fisheries Act does not specify the entities to which a licence can be issued.

The Government also continues to be of the view that designations are not licences. A licence issued by the Minister regulates the fishing activity of those who fish under its authority. A licence can set out when and where fishing can occur, the species and quantities of fish that can be taken, what gear can be used and other measures for fisheries management. Designations are merely one fisheries management measure. They simply identify who can participate in a fishing activity.

Nevertheless, on June 7, 2002, for clarity and to avoid confusion in the fishery, the Governor in Council enacted amendments to the ACFLR with respect to the authority of aboriginal organizations to designate persons and vessels. In the amendments, the Governor in Council removed the authority in paragraph 5(1)(b) of the ACFLR for a condition of licence respecting the method of designation of persons and vessels.

In section 4 of the ACFLR, the amendments added new subsections that:

Thus, the Governor in Council now provides, explicitly in the regulations, the authority for Aboriginal organizations to designate fishers and vessels.

2.  Resolution of Conflicts Between Licences and Regulations

Section 6 of the Regulations provided that in the event of any inconsistency between the conditions of a communal licence issued under the ACFLR and any regulation made by the Governor in Council under the Fisheries Act, the licence conditions would prevail to the extent of the inconsistency. The SJC's view is that section 6 is ultra vires the Fisheries Act.

Government Response

For clarity and to avoid confusion in the fishery, the Governor in Council made amendments to the ACFLR on June 7, 2002 and repealed section 6 of the ACFLR.

Amendments were also made to the following regulations made under the Fisheries Act to clearly identify which provisions set out in those regulations apply to persons who are fishing under the authority of a licence issued under the ACFLR:

3.  Penalties for Contravention of Licence Conditions

Section 7 of the Regulations provides that:

No person carrying on fishing or any related activity under the authority of the licence shall contravene or fail to comply with any condition of the licence.

The SJC's position is that this provision, as well as lacking legal authority, trespasses unduly on rights and liberties and represents an unusual and unexpected use of the enabling authorities.

The SJC considers that if non-compliance with licence conditions is to give rise to punishment by way of fine or imprisonment, this authority should be expressly provided in the statute.

Government Response

The SJC raised similar concerns in its Second Report (Report No. 66) on subsection 36(2) of the Ontario Fishery Regulations, 1989 (OFR) (tabled on March 23, 2000).

The Government continues to believe that section 7 of the ACFLR is valid. Nevertheless, the Government is prepared, at the first appropriate opportunity, to seek amendments to the Fisheries Act to address this concern. The amendment will be sought for greater certainty and to increase clarity. Consultations with both Aboriginal and non-Aboriginal fishers and with provinces must be informed by current and planned policy development and initiatives. These consultations will take time.

Conclusion

The Government has given serious consideration to Report No. 71. For reasons previously provided to the SJC, the Government continues to be of the view that the ACFLR are sound and properly authorized by the Fisheries Act. However, for greater certainty, the Government has addressed two of the three concerns by amending the ACFLR. The Government will seek an amendment to the Fisheries Act to address the third concern raised in Report No. 71.