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Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 15 - Evidence

OTTAWA, Thursday April 25, 2002

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:35 a.m. to consider statutory instruments.

Senator Céline Hervieux-Payette and Mr. Gurmant Grewal (Joint Chairmen) presiding.


The Joint Chairman (Senator Hervieux-Payette): I would like to welcome my colleagues as well as fishery department officials.

We need to attend to two matters before the next meeting of the Scrutiny of Regulations Committee. First, since we have yet to receive a response, despite several attempts, we need to write to the Minister of Transport and tell him that if we do not receive an answer to our two questions, the committee will subpoena the Deputy Minister of Transport so that it can get answers to these questions.

Mr. Bernier can fill you in on the details. The committee has raised some questions and has yet to receive answers. We are serious about this matter and we want answers. Again, if answers are not forthcoming, we will subpoena the deputy minister.

Are there any questions about our planned approach to concluding this matter?

Everyone agrees that we should forward a letter to the Minister of Transport?

Some Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Second, the Standing Senate Committee on Legal and Constitutional Affairs has requested that the joint chairmen of this committee give testimony when it examines Bill S-41, to validate the regulations published in only one language.

I will now turn the floor over to Mr. Bernier who will explain to you the legal aspects of this matter. Since the Legal and Constitutional Affairs Committee meeting is scheduled for next week, I would like to request your permission to appear, along with Mr. Bernier, on behalf of the Scrutiny of Regulations Committee to answer our Senate colleagues' questions.


Mr. François-R. Bernier, General Counsel to the Committee: Members will recall that in its third report, No. 59, the standing joint committee reported to the Houses on certain instruments of delegated legislation that had been enacted in only one official language, contrary to section 133 of the Constitution Act, 1867, and recommended that the government take steps to identify all unconstitutional instruments in place, still in force, still being applied at the federal level, and take remedial action.

Recently, the government introduced in the Senate Bill S-41, which does two things. In clause 3 of the bill, Parliament is asked to validate any legislative instrument originally enacted in only one official language, contrary to section 133, but published in both official languages at the time of enactment. Passage of this bill would take care of any constitutional problems with respect to that class of legislative instruments.

A second class of legislative instruments is dealt with in clause 4 of the bill. In clause 4 of the bill, the government is seeking from Parliament a grant of authority to the Governor in Council to validate instruments enacted in only one language and either not published at the time of enactment or published in only one official language.

Clearly, an instrument that was enacted in only one language is constitutionally deficient. To the extent that clause 4 deals with those instruments that were also not published in both official languages, we have a second ground of unconstitutionality. That is because section 133 requires that all legislation be printed and published in both languages.

The troubling aspect with clause 4 is that it reflects, if you will, a position on the part of the government that the government accepts that there will remain in place for the foreseeable future a number of unconstitutional regulations and that the government will correct the situation as those regulations come to light or, presumably, as someone raises an objection to the constitutionality of a regulation.

It is pointed out in the note that the compatibility, if you will, of that approach with the rule of law seems to us to be somewhat questionable. One would expect the federal government to recognize that it has an obligation to take positive steps to ensure that federal legislation complies with our Constitution.

In asking for clause 4 to be enacted, the government is saying, ``We know there are unconstitutional regulations. We are not doing anything about it at this time, but just please give us authority to validate that legislation when, and if, it comes to light.''

I am not sure why that approach was taken. The federal government has known since the Blaikie No. 2 decision, which was rendered 20 years ago, that there exists a corpus of federal delegated legislation that is unconstitutional. Surely, in 20 years, one would think a government would have had time to identify precisely what delegated legislation is involved. Apparently, that has not been done.

In short, the bill takes half action, if you will, or is a half measure. Clause 3 would resolve in a final way the issue of the constitutional validity of some regulations. However, as evidenced by clause 4, there would remain in place, and continue to be applied at the federal level, regulations, legislative instruments, that are known to be unconstitutional.

Of course, that is not the recommendation that this committee made in its third report. Presumably, if the committee agrees with that position, the joint chairs would convey that position to the Standing Senate Committee on Legal and Constitutional Affairs.

The other aspect of this is what this committee intends to do. To the extent that Bill S-41 is a response to a report of this committee, I would think that at some point this committee might wish to consider making its own report to the Houses, setting out its views on that bill and the extent to which it meets the problem identified in the committee's report.


The Joint Chairman (Senator Hervieux-Payette): Two options are feasible. First, further to our committee's study, Senate legislation could be tabled to amend the act. That would be an encouraging sign, but it would only be a partial solution. Perhaps we should recommend that the task undertaken be completed. What measures do you intend to take?


Mr. Lee: I think we should give the Senate the benefit of our views in that regard. I gather that was the reason this is being raised now. The Senate committee has asked that witnesses from this committee appear before it. I am certainly in favour of that; it will go a long way toward addressing the issue, or at least getting on the record the concerns described by counsel.

It is good to see the bill. We have waited for it for a long time. Some of us have been pulling teeth to get a bill like this before Parliament.

If refinements to the bill are appropriate and needed, it is my hope that they can be addressed in the Senate; if not in the Senate, then in the House. Let us see what happens as the bill moves through the Senate. As a member of the House, if the bill is not in tip-top shape in my view when it gets to the House, then we will do our work in the House.


The Joint Chairman (Senator Hervieux-Payette): Therefore, we will put in an appearance. Mr. Bernier's suggestion that we take the matter up later with this committee is an excellent one. After we have testified, we will need to look at whether the legislation is in line with our recommendations.


Perhaps I will leave two minutes to Mr. Cummins since we have just received his legal opinion. However, I saw it this morning only at 8:29, along with the memorandum. Since we have not read your legal opinion, I may just tell you that Mr. Bernier thinks it is a good opinion because it confirms his opinion, although he may too shy to say that.

I think it is important that you summarize it. The only other alternative is to go through and read it.

I am in the hands of members of the committee. Do members want to take the time to read it, or do you want a summary from Mr. Cummins?

Mr. Cummins, do you mind giving us at least a little overview of the main points of your legal opinion?

Mr. Cummins: Essentially, the paper by Mr. Lowes, as you suggest, confirms the opinion of the committee. He talks about the underlying problem with the scheme, these Aboriginal communal fishing licence regulations.

The issue is compact. There are a number of key issues here. In the first section of his conclusion, he sets out that Fisheries and Oceans Canada is attempting to create by regulation what does not exist at common law, namely, a communal fishery not founded on an Aboriginal right. I think that is a significant conclusion. I do not think it is all that different from what we are talking about.

In paragraph 2 on the communal licence, Mr. Lowes states:

As Mr. Bernier has so ably pointed out, the scheme, whereby the licence is ostensibly issued to the community (``aboriginal organization'') which ``designates'' the individuals who may fish, is a fiction which results in an unlawful subdelegation of the Governor in Council's authority to determine who may issue fishing licences.

In all of its presentations, the department has been unable to provide a substantive counter to that assertion of the committee.

Later in the same section, Mr. Lowes notes that the communal licence is substantively a purported authorization by the minister to the Aboriginal organization to issue such a fishing licence. Again, Mr. Lowes references that to the comments of Mr. Bernier that the licence issued to the Aboriginal organization actually allows it to designate a participant in the fishery.

Mr. Lowes' conclusion on section 6 of the ACFLR is that it purports to authorize a minister to create licence conditions that will then have the effect of overriding inconsistent regulations. Again, that conclusion is consistent with Mr. Bernier's findings. We distributed that yesterday, in time for committee members to read it, I hope.

The Joint Chairman (Senator Hervieux-Payette): Mr. Cummins, did you prepare your memorandum after you saw the opinion or before, because the dates are not the same?

Mr. Cummins: Which memorandum is that?

The Joint Chairman (Senator Hervieux-Payette): The one you wrote a couple of —

Mr. Cummins: This memorandum was prepared before I received the opinion. Those issues were raised by the department in our last meeting. I just wanted to set the record straight. I provided the memorandum to the committee so that they would have an understanding of what I was doing. By providing it in writing in advance, I thought it may help to clarify the issues and prompt questions before I arrived, but it did not.

The Joint Chairman (Senator Hervieux-Payette): In order to hear as many views and clarifications as possible, allow me to explain the information that we currently have. You have submitted your memorandum, and I am sure you have some questions. Mr. Bernier has also prepared some documentation for us. We are now able to refer to the material in an orderly fashion. Mr. Bernier has organized the documentation in a book, with a table of contents of the titles of the various issues that we are discussing.

If you do not mind, I will give Mr. Bernier a few minutes to explain the material.

Mr. Bernier: Essentially, given the constraints imposed by translation and distribution to members, we had approximately three working days in which to prepare some material for the committee. We have used the same division of the subject matter as was found in the draft disallowance report. With respect to that report, each section has been reproduced on the green sheets. That was essentially what you then had in the draft disallowance report.

After each of these sections, we have added comments that arose from the testimony given by the minister and officials at the last meeting. Where appropriate, some questions that arose or items that were suggested from that testimony follows on the white paper. Tab 7 reproduces the correspondence exchanged to date, including, if anyone looks for it, the text of the Houvinen decision. At tab 8, members will find a copy of relevant provisions of the Fisheries Act and the Aboriginal communal fishing licence regulations.

The Joint Chairman (Senator Hervieux-Payette): If we may, let us use the same rules as the last time for questions. The first round of questions and answers by members of the committee will be for 10 minutes; round two will be for five minutes.

If committee members are in agreement, we will proceed until 10 o'clock. If a committee member is required for other committee work, please advise us at this time. The issue before us is important and should be discussed in depth by a sufficient number of committee members.

Do department officials have any opening statements in respect of questions that remain unanswered from last week?

Ms Sharon Ashley, Director General, Policy Coordination and Liaison, Department of Fisheries and Oceans: We do not have an opening statement. We deemed this meeting a continuation of the last session, which began with the minister's opening statement. We tabled a response to some of the questions that we had promised to follow-up on. Mr. Côté has a comment to add.


Mr. Côté: I do not have any preliminary documents. However, I should point out that upon returning to my office after making my presentation two weeks ago, I realized that I had misread sections 7 and 43. I wanted to let you know this immediately because it was by no means my intention to mislead committee members. Because I was focussed on the regulations in terms of their impact on aboriginals, I failed to see the forest, that is sections 7 and 43, for the trees.

I will probably have another opportunity to come back to this issue a little later, but I would like to apologize for that portion of my presentation.


Mr. Cummins: That was an astounding admission by Mr. Côté. I want to clarify some of the issues that were raised by the department last week to correct mistaken impressions. I will refer committee members to the memo document that I passed around.

With respect to the need for flexibility, point 1 reads as follows:

DFO makes the claim about the need for ``flexibility'' in every document presented to the Committee and in every testimony before the Committee.

Before the committee assumes that is DFO is correct, it would be helpful to examine a few points on the subject.

Not even in Sparrow did the Supreme Court of Canada criticize the manner in which DFO managed the aboriginal fishery — it referred the issue of the net length limitation back for retrial because DFO had not argued that it was related to conservation.

The second point is as follows:

Except with respect to the issues of priority and the level of consultation DFO has not been criticized by the courts for the way in which it manages the aboriginal fishery though courts have granted acquittals because DFO failed to argue at trial that time limits on aboriginal fishing etc. are required for conservation purposes.

Can the department give us a specific example of where the Aboriginal communal fishing licence regulations offer flexibility unavailable under the Pacific fishery regulations?

Ms Ashley: One example that springs to the top of my head is the opening for food fisheries when a commercial fishery is closed.

The Joint Chairman (Senator Hervieux-Payette): What do you mean by a food fishery?

Ms Ashley: It is a subsistence fishery for personal food purposes.

Mr. Cummins: Madam Chair, that is nonsense. Food fishing licences were issued prior to the introduction of the Aboriginal communal fishing licences. That is one down this morning.

I suppose you have no other examples?

Mr. David Bevan, Director General, Resource Management Directorate Fisheries Management, Department of Fisheries and Oceans: You mentioned the Pacific regulations only, but there are examples with respect to Atlantic Canada. Licences are issued to the communities as an opportunity for them to use different numbers of traps, for example, in the lobster fishery, and to spread the opportunities among more people than would be available if you had the same regulations that apply in the commercial fishery. The traps can be fewer in number for more individuals rather than have the trap limits that are set in the regulations apply to the Aboriginal community. That is one example.

The timing of the fisheries is another. As well, there are different gears permitted to Aboriginal communities. For example, the use of gillnets in salmon fisheries in Atlantic Canada is not permitted to any other group. It is an opportunity for the First Nations to use gear that is not allowed under the regulations for other users of the resource so they can obtain the necessary food, social and ceremonial fisheries.

Mr. Cummins: Again, what you have mentioned is within the power the minister under the regular fishing regulations; you certainly do not need the Aboriginal community fishing licence regulations to make any of the provisions you have mentioned.

On the second point, the need for communal licences, at page 16 of the blues for the April 11, 2002, proceeding of this committee, Fisheries Minister Thibault said: ``The courts have found that the right of Aboriginal communities is communal. By its very decision, the court is suggesting that we give the licence to the community.''

Mr. Thibault has been wrongly advised that he must give the licence to the community. In the Supreme Court of Canada's unanimous decision in R. v. Nikal, the court wrote:

It is clear that the federal government may validly require aboriginal people to obtain a fishery licence pursuant to s. 4(1) of the British Columbia Fishery (General) Regulations.

The events giving rise to this appeal occurred in 1986. Mr. Nikal fished for food without a licence on the Buckley River near Smithers, British Columbia. At issue in this appeal was whether the communal right to fish for food included a right of self-management of the fishery. Mr. Nikal was acquitted because the conditions on the licence had not been justified by DFO, but the court left no doubt that Aboriginal fisherman must have a licence from DFO before fishing.

Are you, or is DFO, aware of any court decision that requires DFO to issue licences to communities?

Ms Ruth Grealis, Senior Counsel, Department of Justice: The courts have found quite clearly that Aboriginals have the right to fish for food, social and ceremonial purposes. They have also found that an Aboriginal right to fish for commercial purposes in the case of the Heiltsuk and the treaty right found in the Marshall decision are communal in nature. DFO is managing the fisheries in a manner consistent with the constitutional protection given those rights in the court. In our view, there is authority in the Fisheries Act to have a regulation like the Aboriginal communal fishing licences regulations that permits the government to manage the fishery in a manner consistent with that constitutional protection.

On a policy basis, DFO has decided to develop a regulation to provide for communal licensing, such that it is consistent with the court decisions that have found the communal nature to the right.

Mr. Cummins: Again, that was a non-answer to the question. The fact is, you were asked if you are aware of a court decision that required DFO to issue licences to the communities. That the court may have recognized the communal nature of a fishery does not detract from the point in Nikal, which was a decision in 1996, five years after Sparrow, in which the court made it very clear that Aboriginal fishermen must have a licence from DFO before fishing. In that instance, that is a licence to food fish. Again, you have struck out.

As to the question of who fishes the licence, my memo reads as follows:

Senator Moore, at the April 11 meeting raised the issue of who can fish under the communal licences.

DFO officials gave testimony in 2001 in Regina v. Sonnenberg on this very point. Sonnenberg is a fisherman charged for engaging in a protest fishery challenging the Aboriginal fishing regulations. Over two hundred fishermen were charged, the Sonnenberg case is the first to go to trial. A decision has yet to be rendered in the case.

Parts of the transcript of the Sonnenberg trial are reprinted below. The questions are posed by defence counsel and the answers are given by Sue Farlinger, Senior Policy Advisor to the Regional Director General for the Pacific Region, or Bert Ionson, Manager of Policy for Aboriginal Fisheries and Treaties at DFO.

1. Natives Bands can designate an unlimited number of persons.

Question: ``They can designate as many as they like?''

Answer: ``Yes.''

2. The Bands can designate persons other than Band members if they choose.

Question: ``And indeed, insofar as the Minister's concerned there's no requirement that they even be band members, is there?''

Answer: ``The — First Nations can designate people other than Band members, if they wish.''

3. There is no requirement that the participants in the fishery hold Canadian citizenship.

Question: ``They could designate a whole band of — well, a whole bunch of Australian citizens if they wanted?''

Answer: ``Certainly. Their right to designate under the terms of these agreements is — you's one that's communal in nature.''

Question: ``...these agreements do not require that the designated persons be Canadian citizens, do they?''

Answer: ``That's correct, they don't.''

Question: ``Nor do they require that they be Aboriginal for that matter?''

Answer: ``That's correct.''

Question: ``They could designated a whole band of — well, a whole bunch of Australian citizens if they wanted?''

Answer: ``Certainly. Their right to designate under these agreements is — you know, is one that's communal in nature.''

Question: In other words, the discretion as to who to designate is vested entirely in the band?''

Answer: ``Under the terms of the agreement, that is correct...but at the end of the day it doesn't really matter who goes out fishing.''

Question: ``I see. It does not matter if they are Canadian citizens or citizens of Timbuktu?''

Answer: ``Correct.''

With respect to the issue of persons who do not hold Canadian citizenship and have fished in Aboriginal fishing strategy commercial fisheries, my memo reads as follows with respect to the Sonnenberg trial. For clarification, the Sto:lo are a Fraser River band.

Question: ``The Sto:lo have designated some U.S. citizens, have they not, when they were involved on the pilot sales?''

Answer: ``Yeah. My understanding is that they've designated some U.S. citizens...''

Question: ``But not Canadian citizens?''

Answer: ``That is correct.''

That clarifies some points raised last week that DFO representatives were unable to confirm.

My question to DFO officials this morning is this: Do you accept this sworn testimony by DFO officials Sue Farlanger and Bert Ionson?

Mr. Côté: Before Mr. Bevan answers the question, this matter is before the court. If you ask the witness to comment on the credibility, or the rightness or wrongness of a response or a reply given by a witness in that proceeding, it puts the witness in a difficult position until this matter is decided by the judge in Sonnenberg.

Perhaps it would be better if the question were this: Does Mr. Bevan know personally if it is done or not?


The Joint Chairman (Senator Hervieux-Payette): There is a reference to comments made by two persons who are not here today. These comments were made last week or during court proceedings. For the purposes of this committee, we should stick to the issues raised last week. Perhaps we can raise other questions, but, as the witness notes, to comment on court proceedings would not do justice to the current situation. If we wish to probe this matter further, we should confine ourselves to the parliamentary, not to the legal, side of things even though we are dealing with legal issues. If you have no objections, I think we should focus on the wording.

Moreover, even though parliamentary immunity applies, it is customary not to comment on matters before the courts. We can ask our own questions and offer our own comments to probe the matter further. I would like us to confine ourselves to questions concerning the regulations. Do you agree with me, Mr. Cummins?


Mr. Cummins: I was not asking the witnesses to prejudge a court decision. My point was that some questions were asked last week of the senior counsel for DFO about a matter that was argued in court about a year ago regarding testimony given by DFO officials. I would assume that the senior counsel from DFO should have been able to answer those questions, because obviously it had to do with policy.

That was my point in quoting from the court. It is a matter of public record; there is nothing untoward about it. We could simply ask the question: Can native bands designate an unlimited number of persons to fish under a communal licence?

The Joint Chairman (Senator Hervieux-Payette): Since your 10 minutes is over, this question should be answered, and then I will go to another person.

Mr. Bevan: Yes. The answer is that native bands under the communal licence can designate people to fish. It is their choice as to who gets to fish. They can have some flexibility in the numbers of people who fish. It is dependent upon the circumstances that are present in the fishery in which they are participating.

There is flexibility on numbers and on who gets to participate. It is their choice under the licences.

Mr. Wappel: Madam Chair, I really want to talk about something else but I cannot move on. Mr. Cummins has raised something here.

The department has provided two registrations or fishing licences. I would like to refer to them in respect of this question.

The first one deals with the Pacheedaht First Nation. It is a communal licence issued by DFO. On page 1, it states, in part:

This licence is issued to the PACHEEDAHT FIRST NATION, for and on behalf of its members...

On page 2 of that document, under the title ``Designation of Individuals,'' it states as follows:

Unless otherwise specified in a schedule in this licence, the members of the First Nation are hereby designated to fish under the authority of this licence.

Designations are personal and non-transferable. Individuals who fish under this licence shall carry documentation to establish their membership in the First Nation while participating in the Fishery and while transporting fish harvested in the Fishery and will present such documentation on request by any Fishery Officer or Fishery Guardian.

In the second document presented to us, which deals with the Millbrook First Nation, on page 1, it says:

This licence confers on the above-named First Nation or council, subject to the Fisheries Act and regulations made thereunder, the authority to fish under the conditions set out below.

It says the ``above-named First Nation or council.'' I do not quite know the distinction, but I will not go there yet.

On page 2, it reads:

Designated Fishers

Members of the Millbrook First Nation are designated to fish under this licence and shall carry proof of membership in the Millbrook First Nation when participating in the fishery...

A little further down, it states:

Designations are personal and non-transferable.

Just looking at that baldly, it would indicate that only members of the First Nation can be designated, not non- members.

In the Millbrook agreement, there is a paragraph tucked in on the second page. That paragraph reads as follows:

Subject to DFO approval —

I would underscore that because it indicates to me that DFO must approve.

— the First Nation will designate in writing non-member(s) to assist members in fishing under this licence.

I know there may be many, many such agreements, but at least the two that you have tabled to us would clearly indicate that only members of the band are allowed to be designated and to fish, and no one else. In the Millbrook case, if the band wishes a non-member to fish, it must seek and obtain DFO approval. There is no right for the band to name a non-member as a designated fisherman. Am I correct in those statements?

Mr. Bevan: Relevant to those two example licences, yes. Those licences were developed following discussions with the bands, and those are the designation criteria laid out in the licence. In different arrangements with different bands, the licence itself may not be worded exactly as that is. There may be more flexibility for designation of other individuals or different arrangements for designation of individuals in fishing.

However, in these particular cases, your interpretation is correct.

Mr. Wappel: I do not see any constitutional right for a First Nation, without permission of DFO, to designate non- members to fish. Am I correct in that statement?

Mr. Bevan: That is correct.

Mr. Wappel: I would like to get to two things. I want Mr. Côté to clarify something for me. I am asking this question specifically because I want to be clear on my understanding of Mr. Côté's opening comments this morning.

At the last meeting, I asked Mr. Côté for his view as to whether a sentence I would read to him accurately represented the law. That sentence was as follows:

When it enacted section 43 of the Act, Parliament vested in the Governor in Council the discretion to decide who may be authorized to issue licences under the Fisheries Act.

The answer was that he did not agree.

I want to be clear. Was your opening comment to the effect that, yes, you did in fact agree with that statement?

Mr. Côté: Yes, I do agree, and I am sorry that I had said no.

Mr. Wappel: Corporations was a big hang-up for me in the last meeting.

Mr. Cummins provided the committee with a legal opinion from Mr. Lowes. I believe you have a copy of it. At the bottom of page 2, it reads as follows:

The distinction from a corporation is obvious.

I wish Mr. Lowes had not begun his paragraph like that because it seems that it is not obvious. I would like to get to it.

He continues:

As a legal person, a corporation may, in itself, hold a right to fish. While the actual fishing activity must be conducted by human beings, it is carried out by those persons as agents on behalf of the corporation. In short, it is the corporation that holds the right, it is the corporation that is prohibited from fishing without a licence, it is the corporation that receives the permission to fish by the licence and it is the corporation which owns the fish when they are caught.

Do you agree with that characterization of a corporation, first of all, in the context of the questions we are dealing with?

Mr. Côté: I have learned from my presence here two weeks ago. I should like to think about it. There are some elements in that paragraph that I agree with, but I would have to sit back and look at other elements.

Mr. Wappel: That is fair.

I should like to know if the words ``Aboriginal organization'' could be substituted for ``corporation'' in those statements. If we begin with ``as a legal person,'' I would say that an Aboriginal organization is not a legal person, ``an Aboriginal organization may, in itself, hold a right to fish.''

Would you agree with that, because you are issuing communal licences to Aboriginal organizations?

Mr. Bevan: Yes, that is correct. We are.

Mr. Wappel: The paragraph would then continue: ``While the actual fishing activity must be conducted by human beings, it is carried out by those persons'' — and here is the nub of it — ``as agents on behalf of the Aboriginal organization.''

Do you agree with that?

Mr. Côté: It is difficult. I do not disagree with the words, but I would like to have some time to give it a little more thought.

Mr. Wappel: Let me complete my thinking. The paragraph would continue: In short, it is the Aboriginal organization that holds the right, it is the Aboriginal organization that is prohibited from fishing without a licence, it is the Aboriginal organization that receives the permission to fish by the licence and it is the Aboriginal organization which owns the fish when they are caught.''

What I have done is substitute the words ``Aboriginal organization'' for ``corporation,'' because one of your arguments as a department has been that it is like a corporation. I would be happy to allow you to consider it; however, I would be startled if you would agree with me that the words ``Aboriginal organization'' and ``corporation'' are interchangeable without explanation, at least based on the definition of corporation contained in the legal opinion circulated by Mr. Cummins.

I know that is a long question. One of the main things you have relied on is the similarity between an Aboriginal organization and a corporation, and I just do not see it.

Ms Grealis: The comparison with a corporation was not done in the way it is set out here. I believe DFO was indicating that, as with a corporation, an Aboriginal organization selects the crew or the people, the members of the community, who will fish under a licence issued to it. It is not the corporation itself that fishes, but the people who are selected to do the fishing by the corporation; it is not the Aboriginal organization itself that fishes, but the people, the members of the community or others, depending on how the licence condition is set out, that are going to carry out the fishing.

In both cases, the persons fishing under the licence can be found to be in contravention of the act or regulations. There is a similarity.

Mr. Wappel: If the licence is issued to the corporation, and a breach of the condition occurs — under section 7 of the regulations that we are considering, it reads: ``No person carrying on fishing or any related activity under the authority of a licence shall contravene or fail to comply with any condition of a licence.''

It is referring to the person to whom the licence was issued, which was the corporation, which is a legal entity. If there is a breach of any conditions or a breach of the law, that legal entity can be charged with a breach; an Aboriginal organization cannot be, correct?

Ms Grealis: I am not sure that an Aboriginal organization cannot be. The offence provision in section 78 of the Fisheries Act reads as follows:

Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of

an offence...

A person would include a corporation, but it would also include the crew members or individuals who are fishing under a licence.

Mr. Wappel: However, section 78, which you quoted, would not include an Aboriginal organization; correct?

Mr. Côté: I think it could. For reasons I explained last time, I think it could. The difficulty I have is with the words ``as a legal person'' in the paragraph you have read out. Persons are either individual persons or incorporated persons; however, the law applies to entities other than corporate persons and individual persons.

I believe I used the example of the Knights of Columbus, who may not be corporate entities. I may be wrong, but I would submit that the Knights of Columbus could be given a fishing licence to celebrate, say, their 100th anniversary. They are obviously not individual persons, but if they are not a corporate person, can they then be subject to prosecution if they fail to respect one of the conditions of the licence? Can they be subject to prosecution pursuant to section 78 of the Fisheries Act?

To answer that question, we must look at both the Interpretation Act and the Criminal Code. The Interpretation Act specifically says that the Criminal Code applies to criminal offences created by other federal statutes. Then we have to go to the Criminal Code, which defines what a person is for the purpose of the Criminal Code, and, therefore, for the purpose of prosecution. Person includes not only individual persons, of course, not only corporate persons, but also, as the code says, societies. It is that word that had to be interpreted in certain cases.

I referred two weeks ago to the Supreme Court decision in the United Nurses of Alberta, an unincorporated association, that was prosecuted for certain violations. The argument was that it was not a corporate entity, that it was obviously not an individual entity, and therefore could not be prosecuted. The Supreme Court of Canada did not agree with that argument; the court said that the word ``society'' has a broad meaning.

It is in that context that I have a difficulty with the words ``legal person.''


The Joint Chairman (Senator Hervieux-Payette): Your ten minutes are up. Counsel would like to clarify one thing. I will turn the floor over to Mr. Bernier, since this is a specific question about legal or corporate persons. Perhaps he can explain the definition to us.

Mr. Bernier: I just wanted to be certain that I understood the witness clearly.


The Criminal Code is only relevant in that it sets out the procedure by which prosecution will take place, either by indictment or summary conviction. It is quite true that the Criminal Code contains provisions that are addressed to entities other than persons. These are not relevant here.

The relevant point is the offence created by the Fisheries Act in section 78. Is the witness stating that the word ``person,'' as used in section 78 of the Fisheries Act, includes an Aboriginal organization that is not incorporated?

Mr. Côté: Before I answer, I want to refer to section 34 of the Interpretation Act. It is not merely procedure; all the provisions of the Criminal Code apply. In the Criminal Code, there are procedural provisions and substantive law provisions. Having said that, yes, non-corporate entities can be prosecuted under section 78.

Mr. Bernier: Non-corporate entities are persons, for purposes of section 78. Is that correct?

Mr. Côté: For the purposes of the Criminal Code and section 78, yes, they could be.


Senator Gill: On looking at the different memos that have circulated since the last meeting, I observed that they contained some value judgements on aboriginal rights. When it comes to defining aboriginal rights, the tendency is to become very rigid and legalistic. We are left with the impression that history began when the first Europeans set foot on this soil.

The Joint Chairman (Senator Hervieux-Payette): It should be noted that the aboriginal legal system is not necessarily codified. Could you help us understand how the aboriginal community interprets these rights? How do you interpret the exercise of these rights?

Senator Gill: The key issue here is that common law makes no provision for communal rights. How then do we address ancestral and treaty rights which pre-date the 1867 BNA Act and the Constitution Act, 1982?

The common law is silent in so far as communal rights are concerned, and yet, these rights must have existed in the past, since fishing and other rights were indeed recognized. People get the impression that the government is working in a vacuum when it issues aboriginal communal fishing licences.

Mr. Côté: Canada's Constitution recognizes ancestral rights as well as treaty rights. In managing the fishery, DFO endeavours to comply with court decisions and to respect constitutionally recognized rights. I do not wish to stray into the domain of common law, but we are subject to laws as set down by the Supreme Court of Canada which has recognized the existence of constitutional rights. Therefore, DFO must accommodate these constitutional requirements.


The Joint Chairman (Senator Hervieux-Payette): Would you like to add to that? We need to clarify our interpretation of Senator Gill's opinion on the rights that existed before the current Constitution. These rights existed and, of course, the courts have interpreted them. However, it is a system of law that stands more on tradition than on judgment by the court. Of course, non-Aboriginal people try to understand this concept.

Ms Grealis: I hope I understand your question. You are asking about how DFO manages the fishery in a manner that accommodates Aboriginal and treaty rights and what those rights are that have to be accommodated.

Aboriginal rights are received as part of the common law — but that is a side issue. The courts have found that, where an Aboriginal or treaty right is established, the government can regulate the exercise of those rights. However, in regulating the exercise of those rights, the government needs to justify any infringements or restrictions placed on those rights.

Aboriginal and treaty rights are not absolute. The law is developing, for the most part, through prosecutions. Fisheries prosecutions have actually been on the leading edge of the development of Aboriginal rights and treaty rights law, as pertains to the fishery.

Because they are prosecutions, they are generally about the guilt or innocence of a particular accused, but the court, because we have a number of Supreme Court of Canada decisions, has provided general guidance on the nature and scope of Aboriginal and treaty rights and the requirements for justification of infringement of those rights.

DFO has put in place, and can speak better to its policies on this, a framework through policy and through the Aboriginal communal fishing licences regulations that allows them to manage the fishery where rights have been established, where they have not been established but might be and where there are no rights, to manage Aboriginal fishing in a manner that will be consistent with the constitutional protection provided those rights, where they are established or should they be established.

The Aboriginal communal fishing licences regulations help to do that in a few ways. The regulations allow for the issuance of communal licences. The courts have not said that you must issue communal licences, but they have clearly signalled that licensing is a mechanism for management of the fishery that rarely infringes an Aboriginal or treaty right. That is the Nikal decision that Mr. Cummins cited.

The infringement usually arises from the conditions of licence. That is why built into the regulations are provisions such as section 6 and the long list of additional conditions that can be specified. It is not an exhaustive list. The type of conditions that can go in a communal licence include all the usual conditions that can be found in any other kind of licence in the fishery general regulations. Also included are numerous other special conditions, such as the method of designating individuals and vessels, such as disposition, which allows for determining whether the access is to provide for food, social and ceremonial purposes or to commercial fisheries or for other purposes.

It also provides for the conditions of licence, where they are inconsistent with other regulations, to prevail. That is not the licence conditions but the regulation itself that provides for the two regulatory regimes to do that. For example, in the Sparrow decision, the net length was at issue. They found that the net length restriction in the regulations at that time infringed the Aboriginal right to fish for food, social and ceremonial purposes that was established in that case for the Musqueam at a location near the reserve.

The court set out a test for justification, which has since been refined in subsequent cases, and then it sent the matter back for trial. The test has two parts. The first part is that you need a valid legislative objective for the purposes of the test. Conservation has always been considered a valid legislative objective. Depending on the circumstances, other legislative objectives have also been considered valid, things like regional and economic fairness, which was discussed in Gladstone. That case found a commercial right to fish for herring spawn on kelp for the Heiltsuk First Nation and in Marshall. Also discussed in both those cases is the historical reliance upon and participation in the fishery by others.

Then there is a second part of the test. That requires that you have upheld the honour of the Crown. There are a number of factors to take into account there, such as: consultation, as Mr. Cummins has mentioned, and whether the infringement is minimal.

Where other regulations provide a net length, if DFO is of the view, and during the negotiations the band expresses a view that they would like a net of a different length, and if it fits into the federal fisheries management regime, the communal licence allows you to put in a different net length than would be found in one of the other regulations in order to accommodate the preference of the group and provide partly for the management of the fishery.

The regulations are designed and have the authority to assist DFO to manage the fishery in a manner consistent with Aboriginal and treaty rights, but they are designed to manage all Aboriginal fishing.

I hope I have answered part of your question.


Senator Gill: Yes. Moreover, I anticipated the second part of your answer, given my long-standing interest in aboriginal affairs. First of all, unless we are dealing with a translation problem, there appears to be a difference of opinion between those who claim that common law makes no provision for communal rights and those, like you, who argue just the opposite.

Second, in my part of the country, it is clear that we prefer agreements. Why could we not proceed in the same way as was done in British Columbia and elsewhere? Perhaps the stakes are higher in this case, but aboriginals in my region of the country, my people, have concluded agreements with neighbours so that they can exercise their fishing rights. Sport fishers are also satisfied with these agreements.

We do not step on our neighbours' rights, and neither do they step on our rights. We try to coexist peacefully. It is important not to be too finicky or legalistic. If we spend all of our time scrutinizing legislation with a fine-tooth comb to pick up every detail, we will never be done with it!

The Joint Chairman (Senator Hervieux-Payette): Your comments underscore what I was referring to earlier, namely that even though your rights may not necessarily be set down on paper in legislation drafted and adopted by different aboriginal groups, this does not mean that these rights are not enjoyed by aboriginal communities.

Our committee needs to acknowledge your culture and incorporate your rights into our laws. We need to understand what being part of an aboriginal community really means.


Mr. White: It seems that over the years Mr. Wappel and myself hone in on the same things. He dealt very well with the corporate issue this morning. I do not know if that means great minds think alike or we are both confused by the same things.

I will go on to a second issue, the underlying issue of flexibility that was discussed at length last week. The department made it clear it needed flexibility. I am not sure this committee accepts that the need for flexibility justifies the making of improper or unauthorized regulations, and I would like to pursue that.

I will quote from the legal opinion of Mr. Lowes, which I believe the witnesses have, on page 1, under the paragraph headed ``The Underlying Problem.'' Mr. Lowes states:

Underlying the legal problems with the mechanics of the scheme set up by the ACFLR is the attempt, by the Government, to create a communal fishing right (and concomitant communal fishery) by using a statutory regime to which such a right is foreign:

He goes refers to the Supreme Court decisions in Sparrow and Marshall. Mr. Lowes goes on to say:

Communal rights, however, are, generally speaking, foreign to the common law which deals in individual rights.

We have already discussed corporate rights as being much like individual rights in that respect.

The last paragraph under that section on page 2 of the legal opinion reads as follows:

Leaving aside whether such a fishery can be created by Canada pursuant to its authority under Section 91 of the Constitution Act 1867 and whether it can be created pursuant to the provisions of the existing Fisheries Act, it is apparent that it cannot be done through the existing ACFLR.

That is the conclusion the committee had come to.

Does the department accept that the fact that a regulation accurately reflects the intentions of the regulation maker is irrelevant to the question of whether there is authority for that regulation? In other words, because there is a need to make a regulation for the flexibility you want, does that necessarily give you the authority to do so? Would you accept that?

Ms Grealis: I would say that you do have to look at the authority in the enabling legislation to find what your authority for regulation making is.

Mr. White: Can you explain where the authority is for the making of the regulations presently under discussion?

Ms Grealis: Yes. Just before I go to that, I will point out that the regulations are not creating rights. As I have indicated, the courts have found or affirmed existing rights in a variety of cases, so the regulation is not creating rights.

In the Houvinen decision, the B.C. Court of Appeal clearly indicated that the issuance of a licence is not a recognition that a group has a right. Just to be clear, DFO is putting in place a regime to help it manage fisheries in a manner consistent with Aboriginal and treaty rights; DFO is required to do that under the Constitution. However, it is not defining those rights; it has no mandate to define the nature and scope for any specific group, nor does the fact that a licence is issued recognize that there is a right in the group to whom the licence is received.

In our view, the regulation-making authority is in section 43 of the Fisheries Act. In looking at that, I would also be looking at the Peralta decision, which is referenced at page 4 of the DFO document you were just provided with. Basically, what it says in Peralta is this:

The first particular power given under the regulation-making power of the Governor in Council is ``for the proper management and control of seacoast and inland fisheries.''

Section 34 is now 43. The paragraph on page 4 continues:

This states the general purpose of the entire section and a wide authority is conferred in the following subsections by the use, as noted earlier, of the word ``respecting,'' ``embracing any regulation for any purpose coming within the defined subject matter...''

When the Aboriginal communal fishing licence regulations were put into force, they were made under section 43 of the act. They were not made under any of the particular headings specifically. It is not necessary to tie it just to one heading.

Section 43 provides for regulations for the ``proper management and control of the seacoast and inland fisheries.'' That would, in our view, include managing fisheries in a manner consistent with constitutional protection provided to Aboriginal and treaty rights because that will be a part of the management and control of seacoast and inland fisheries.

It also includes ``respecting the issue, suspension and cancellation of licences...'' This regulation is about issuance of licences and the conditions that are put in those licences. There is also authority for ``respecting the terms and conditions under which a licence...may be issued.'' There is specific authority with respect to close times.

When you put the package together, you realize that this act is, among other things, about managing seacoast and inland fisheries. The authority in the Fisheries Act is very broad. It enables us to accomplish what is required. In our view, the authority for a regulation like the Aboriginal communal fishing licences regulations does lie in section 43, which is about managing Aboriginal fishing. The reassessment clearly indicated that the regulation was about managing all Aboriginal communal fishing, not individuals or companies in the fishery, which are under other regulations. It is about being able to manage in a manner consistent with Aboriginal and treaty rights.

As Nikal has said, the issuance of a licence in and of itself rarely infringes a right and its conditions. DFO has a flexible list of conditions on the type of things that can go into the licence.

In our view, the authority does come from section 43 of regulations. It is very wide.

Mr. White: With respect, we have never questioned the right or desire of DFO to have flexibility, which you mentioned several times in your evidence. You mentioned section 43 as giving the authority. Could you be more specific as to where in section 43 you are given that authority to make these regulations?

Ms Grealis: I will cite them again. As I indicated, when the regulations were made, the introductory part that suggests what the regulations are made under said section 43 of the Fisheries Act. They did not say 43(a) or (b) or(c).

Section 43 is the regulation-making authority. Section 43(a) says that regulations can be made for the ``proper management and control of the seacoast and inland fisheries.'' Peralta says this about that provision:

This states the general purpose of the entire section and a wide authority is conferred in the following subsections by the use, as noted earlier, of the word ``respecting'' —

The word ``respecting'' is at the front of many of those subsections. The decision in Peralta continues:

— ``embracing any regulation for any purpose coming within the defined subject matter.''

You already have the 43(a), which is very broad in and of itself. Then you have ``respecting the conservation and protection of fish'' in (b). You also have being able to manage the fishery, to allocate the resource, to provide conditions on licence and on access to the resource. This is all about conservation and protection of fish as well as the management and control of the fishery.

There are specific provisions with respect to the ``issue, suspension and cancellation of licences.'' That is section 43(f). Section 43(g) is about ``respecting the terms and conditions under which a licence...may be issued.'' Section 43(m) is in regards to ``close time.''

Those are the main sections. When you put those altogether, you see the general purpose of the Fisheries Act. You see the parliamentary authority in enacting the Fisheries Act. Parliament has provided broad powers to the Governor in Council through this regulation-making authority.

Mr. White: We would argue that the entire section is about giving power to an individual person who fishes. This is the point of dispute here. We say that there is no authority to grant a licence to a communal fishing organization under this section of the act. If nothing else, you have given us much to think about and to have our legal counsel consider over the next period of time.

Mr. Easter: I am a little worried, given some of Mr. White's comments, that we could be coming to this committee for the next six years trying to deal with this issue. There is a danger of getting into a debate on the Aboriginal fishing strategy policy itself in a roundabout way. That may or may not suit some people's purposes who may or may not agree with the Aboriginal fishing strategy.

Our purpose, as I understand it, is to determine whether the regulations that allow the Aboriginal fishing strategy to operate are sound and legal to do what the intent of the Aboriginal fishing strategy was. Am I correct in that?

Anyway, I am worried that this committee's discussions on this issue are becoming a debate on a number of things related to the Aboriginal fishing strategy and the Aboriginal fishing strategy itself. As I understand it, our purpose here is to sort out whether this committee believes that the regulations are sound and legal to follow through on the intent of the Aboriginal fishing strategy. Am I correct in that?

The Joint Chairman (Senator Hervieux-Payette): Before he answers, maybe you should tell us what you mean by ``Aboriginal fishing strategy.'' It is not a concept that we find in the law.

Mr. Easter: I am referring to the rights under the act that allows the Aboriginal fishing strategy to take place.

Mr. Bernier: I believe the term ``Aboriginal fishing strategy'' refers to the government policy that was instituted in 1993. Witnesses can correct me if that is wrong,

The member of course is entirely correct. The concern of this committee, in accordance with its statutory mandate, relates to validity of regulations.

Policy can sometimes come in by the back door, if you will, for a number of reasons, but one of them is quite legitimate. One of the scrutiny criteria of this committee is whether regulations represent an unusual or unexpected use of enabling powers. When making such a determination that a regulation, while not necessarily illegal, represents an unexpected or unusual use of the powers given by Parliament, the joint committee has in the past taken into consideration policy purpose of regulations, at times. Other than that, it is strictly a legal examination.

Mr. Easter: That is fine. We should then come to whether the department feels that the regulations are as they should be to do the job.

At the last meeting, a number of us had said to legal counsel that it is questionable in many people's minds whether the regulations are in place to do the intended job. At page 3 of the Lowes paper, the first two paragraphs under the heading, Subdelegation of the Power to Amend the Regulations: Section 6 ACFLR,'' state:

As set out above, the ACFLR, and in particular the ``communal licence'' is a tool with which the Government is attempting to create, by regulation, that which does not exist at common law: namely, a communal right to fish...which is not based on an aboriginal or treaty right to fish.

This problem also results in the subdelegation problem with Section 6 of the ACFLR.

You have the draft disallowance report, which also questions whether the regulations are sound to do what was intended.

The department has had a couple of weeks to think about its position last week. Are you still of the opinion that the regulations are as they ought to be, or do you have anything to offer this committee to satisfy it that the regulations are sound and do what they are intended to do?

Ms Ashley: We still have the opinion that the regulations are sound and that we have the legal authority to do it. We have marshalled our arguments and rationale for doing so and provided the committee with as much information as we could, and we are willing to provide anything else you might request.

Mr. Easter: Are these documents what you have provided the committee?

Ms Ashley: Most recently, those are the responses to the questions that came up the last time, and we provided information previously as well, for example, the arguments at the last meeting.

Mr. Easter: Madam Chair, I have not read through what was tabled today, but I will. I just want to say again, Madam Chair, that I hope that as a committee we can deal with the specifics of the regulations. I do not want to be debating the issue, and I want the committee to get to a position where it can make a decision, whether we go with a disallowance report or not, because that is the key question.

The Joint Chairman (Senator Hervieux-Payette): You have put the problem clearly, saying that with respect to the communal licence — I refer to the legal opinion provided to us by Mr. Cummins' legal advisor — that we are not in a vacuum, because the interpretation of ``community'' by the native people and our interpretation in our system of law might be different. That is probably something the legislators have tried to accommodate, two systems that do not necessarily confront one another but that do not necessarily have the same rationale.

Mr. Lee has questions some questions. Following his 10 minutes, I will seek your advice on how to come to a rational way of proceeding with this important matter.

Mr. Lee: As we all know, there are several components of these regulations that are in question. I want to focus on section 7 of the regulations, which purports to create an offence.

Can I ask any of the witnesses from the department whether they are prepared to agree right away — I hope they will be — that the government, without the express authority of Parliament, does not have the ability to create a criminal or quasi-criminal offence? Without the express authority of Parliament, the government does not have the ability to create a criminal or quasi-criminal offence; correct?

Mr. Côté: Yes.

Mr. Lee: You agree with that.

Mr. Côté: The offence is created by statute, yes.

Mr. Lee: By express wording in a statute.

Mr. Côté: By the statute. It is must be written in the statute.

Mr. Lee: We are getting closer. It is must be written. It is must be stated. Actual words have to create the offence. I would call that an express wording that creates an offence. Is that fair enough?

Mr. Côté: Yes, and I would say that the legislature in Canada usually uses the same wording to create an offence.

Mr. Lee: That is fair. I will eventually ask the department why section 7 of the regulations was created. However, it purports to impose a legal requirement in relation to the conditions attached to a licence'' It say, in part: ``No to comply.'' That is a regulation, not part of the statute.

I want to point out that section 9 of the act itself provides a remedy when a person fails to comply with the terms of a licence. Section 9 states, and I am paraphrasing, that if a person fails to comply with the terms of a licence the minister may revoke, cancel or suspend the licence.

The remedy is provided by statute for breach of a condition of a licence, as I see it, and Parliament adopted that.

What is the purpose of section 7 of the regulations, because it also deals with compliance with conditions of a licence?

Ms Grealis: The purpose would be to set out a requirement to comply with conditions of a licence, but I am not reading section 9 as the only way to address non-compliance. Section 9 indicates that you can suspend or cancel where the operation under the licence was not conducted in conformity with the provisions, and no proceedings under the act have been commenced with respect to the operation of a licence. The act already provides another offence provision, which is section 78.

Mr. Lee: That is fine.

Ms Grealis: Section 7 is setting out a requirement to comply with the conditions of licence.

Mr. Lee: Why is section 7 necessary if the act has already provided a remedy? If Parliament has already given a remedy, what is the purpose of section 7?

Ms Grealis: Section 78 indicates that every person who contravenes an act or the regulations is guilty of an offence. The offence provision is in section 78. Section 7 sets out a standard of conduct requiring a person to comply —

Mr. Lee: Well, I do thank you for that. The government has therefore — I am interrupting, Madam Chair, and I realize that, but it is very important. You have just stated that government officials have set out a standard of conduct, the breach of which will result in prosecution as a criminal offence. You have actually framed what I am trying to indicate, and it is my view that the government cannot do that.

In my view, this backdoor creation of offence will never fly in a court of law. It cannot stand. As a legislator, I do not accept that the well-meaning government officials, who are attempting to buttress the organization of this statute and the compliance with it, have the right — the legal ability — to create an offence to create a standard of conduct in default of which a citizen can be prosecuted.

Ms Grealis: I would suggest it is the Governor in Council who has created the requirement to comply with the conditions of licence.

Mr. Lee: I just said the Governor in Council does not have the ability in our system of law to create that standard of conduct and to prosecute people.

Ms Grealis: The Governor in Council has the authority to make regulations with respect to the issuance of licences and the conditions. As part of that, we would say that the Governor in Council also has the authority to require you to comply with the conditions. The offence is in section 78 of the Fisheries Act. The regulations set a requirement, and contravening that requirement is an offence under section 78.

Mr. Lee: It is not express, Ms Grealis. The offence you have just described in section 7 of the regulations is not expressed in section 78 of the act.

Ms Grealis: Section 78 of the act indicates that ``every person who contravenes...the regulations...''

Section 7 of the regulations states as follows:

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

Therefore, if you fail to comply with the condition of licence, you are contravening section 7 of the regulations, which is an offence under section 78.

Mr. Lee: It is not an offence under section 78. The department has just created the offence by setting the standards of conduct. Let me ask you this: Absent the existence of section 7, could anyone be convicted of an offence for failure to comply with a condition of a licence? Absent section 7, could a citizen be convicted of failure to comply with the condition of a licence?

Ms Grealis: Not unless it was in another part of the act.

Mr. Lee: Are you trying to say no? I have asked you a simple question. Absent section 7, could an individual be convicted of the offence of failure to comply with a licence condition? Yes or no?

Ms Grealis: No.

Mr. Lee: No. Thank you. Actually, you may have something you want to add to that. I am willing to listen, but I will terminate my questions now. Thank you.

Mr. Côté: Just to clarify this, you are suggesting, Mr. Lee, that section 7, to satisfy your opinion, should have been in a statute.

The Joint Chairman (Senator Hervieux-Payette): Exactly.

Mr. Lee: You are 100 per cent correct in saying that.

The Joint Chairman (Senator Hervieux-Payette): Do we have another substantive issue to address now? I believe the major questions have been asked and answered. I thank the panel for their presence today and for the documentation they have submitted to the committee. I also thank Mr. Cummins for all his efforts to assist the committee on clarification of the issue.

We must now determine how to resolve this matter. It seems that the minister is not prepared to change any of the regulations that are before us. Therefore, we must address the matter either through specific questions or through the answers that have been provided before the committee by both Mr. Cummins and the department.

The committee must decide how we should proceed.

Mr. Cummins: Madam Chair, I am at end of my tether on this issue. The minister has appeared before the committee twice, and we have also had departmental officials here. There has been correspondence back and forth on this issue for five years. The committee, I think, has other work to do. It is time to move on.

I will move that counsel be directed to prepare a disallowance report for the next sitting of the committee.

The Joint Chairman (Senator Hervieux-Payette): Are there any comments?

Mr. Wappel: Madam Chair, I am at the end of my tether, but I am not sure that I really know which direction we should take. I want to make two comments, one of which will be in response to Mr. Easter.

There has been much discussion about these regulations and whether there are communal rights, whether something can be done and about how broad the act is. I just want to remind committee members of two things that were in the original draft disallowance report.

The Joint Chairman (Senator Hervieux-Payette): We will look at the text of that report.

Mr. Wappel: I will do it in reverse order. First I will quote from the report, and then I will respond to Mr. Cummins. Looking at the green sheets, the first item is on page 5, and then I will move to page 4. At Tab 3, on page 5, it states:

In enacting the Fisheries Act, Parliament intended that licences would be issued by the minister under section 7 of the act. But Parliament also allowed for the possibility that the Governor in Council could, by regulation, provide a different legal basis for the issue of licences by the Minister, or even designate another authority to issue licences. If the authority to issue licences is to be delegated to a person or entity other than the Minister, this decision is one that must be made by the Governor in Council and it must take the form of a regulation.

On page 4, it states:

It is the view of the Committee that the Fisheries Act, while it allows 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 do so.

There are some who claim that this committee says there is no power for someone to give licences to Aboriginal organizations. In fact, that is not what this committee has been saying. Rather, it has been saying that, according to the wording of the act, only the Governor in Council may give, by regulation, the licence authority to an Aboriginal group. The minister cannot do that for the reasons that we have set out. That is only one part of it. For example, section 7 mentions the token close times and a few other things.

Having said that, I want Mr. Easter to understand that there has been some misapprehension about the content of this committee's draft report. It never said that no one could ever issue licences to Aboriginal organizations. It must be the Governor in Council by regulation, and not the minister. Therein lies the difference between the department and this committee, which appears to be intractable, because we have heard from Ms Ashley that there is no agreement to move on any of the issues from the department. We are now left wondering what we should do.

I do not want to be accused of, again, waiting another two weeks, but I was thinking that perhaps we should wait until the next meeting. The committee could agree that at the next meeting we will proceed item by item for the five or six items that were listed in the previous draft report, look at all the material, and make a decision as a committee on each of those items, whether we agree with the officials. If we do not, then we will decide what we are prepared to do. I do not know that that is necessarily different from Mr. Cummins suggestion.

However, that would provide us with an opportunity to consider each of the disputed areas individually, line by line if you will, at the next meeting so that we can make a decision and then instruct our counsel with respect to each of those points.

I know that is another two weeks, and I am not saying that is the best idea, but rather than charging ahead again maybe we should take a look at each of the issues, talk amongst ourselves about the answers and whether we are happy with them, ask if we are content with what the department has said, and then issue instructions to our counsel as to what, if any, portions of the regulations we wish to recommend this allowance of. I know that is a long preamble, but I would err on the side of caution and nail it down section by section.

The Joint Chairman (Senator Hervieux-Payette): In the case of Mr. Cummins, he wanted, after hearing the testimony of the ministers and the department, to revisit the existing disallowance, and if there are some adjustments or modifications they could be indicated in a different typeset.

If I understand your proposal, once we have a document, either revised or unrevised, we must take into account what the witnesses said and the discussions we have had among ourselves. That way, we can have a second look at the initial report and ensure that it would be presented to us, with all the new legal opinions and such, for discussion and adoption at the next meeting.

We would go paragraph by paragraph. I would even ask you to number them so that we can know how we will address these. We would then have a final report that we are all comfortable with. It will not be very different from the initial one, but it would be fine-tuned.

Does that answer your expectations, or were you expecting a totally new report?

Mr. Cummins: The difficulty I have is that this is the second time that the department has appeared before the committee. They have offered nothing new. They have not answered the criticisms of their reference to either Peralta or Houvinen. They seem to be shifting ground and suggesting that, in some obscure way, section 43 may be where they are getting authority for these aboriginal communal fishing licences.

I think that counsel has done an admirable job. He has explained this issue very thoroughly in his documents. I have read this over many times, as have other members of the committee. It is time to move ahead, and I want to remind the committee that the fishing season is fast approaching in British Columbia and there are prosecutions in the offing where this matter is of some consequence. The time is ripe to get on with the job.

The Joint Chairman (Senator Hervieux-Payette): I do not think we have a big disagreement. As far as I am concerned, on section 7 we have enough clarification from the answers of the witnesses that I will be able to give my final answer. As far as communal rights, I would certainly like to reflect on all the documentation we have received today before making a final decision. Our legal counsel is in agreement about reviewing it and, if necessary, incorporating it in the report that we will be able to adopt at our next committee meeting on May 9.

This issue is before the court, and I understand your preoccupation with the fishing season, but I think May 9 is not that far away, so we have two options. We will go with your motion, unless you agree with the approach of Mr. Wappel to have the most qualified and precise report that takes into account the discussion of today. I think we have taken the time for reflection, but there is material that we have not had time to look at.

I am in your hands, Mr. Cummins. We can go with your point of view, which is to go ahead right away, or we can review a revised, or at least an enhanced version, and go through it the next time and make a final decision at the next meeting.

Mr. Cummins: This issue has been under discussion for a long time. I have memos from DFO legal advisors with the date March 11, 1986 on them. The department has been talking about this for a long time, and back in 1986 counsel to the department was offering cautions on proceeding on this issue.

These people have come here this morning, and they still have not offered anything. No changes, nothing new, this is simply another rehash. I do not know about you, but I have other things to do. I think we should vote on this matter now and get on with the disallowance next week.

The Joint Chairman (Senator Hervieux-Payette): I will put the motion on the floor.


The Joint Chairman (Senator Hervieux-Payette): We recommend that the Standing Joint Committee for the Scrutiny of Regulations move the adoption of the report.


That counsel be directed to prepare another draft disallowance report for the next meeting of the committee.

Is this your motion? I thought you wanted to approve it today. I want clarification from you.

Mr. Cummins: It is to bring forward a disallowance report for the next meeting.

The Joint Chairman (Senator Hervieux-Payette): Mr. Wappel, what is the difference between the new report prepared by legal counsel with all the documentation and your recommendation? I want to make sure we understand what we are doing.

Mr. Wappel: There is very little except, perhaps, timing. I thought we would come to our conclusions at the next meeting, and then instruct counsel, if it was our wish, to prepare a disallowance report for the following meeting on whatever sections we propose to disallow.

It looks to me like we are two weeks apart. I have no idea whether counsel can do these things in terms of his requirements and his office's requirements, and I remind us about Mr. Brien's point that the draft disallowance report cannot be identical to the previous one without unanimous consent.


Mr. Bernier: As far as drafting the report goes, I would just like to clarify something.


To prepare a report for the next meeting would be somewhat difficult due to the delays in circulating things to members and translation requirements. That effectively gives us three working days in which to rewrite the draft report before the committee.

Whether I think that what the witnesses have brought forward has any bearing, whatever I think of the merits of their arguments, they have brought forward arguments that had not been brought forward before, and it seems to me they have to be dealt with. That requires some time.

We heard from Mr. Côté this morning that a person in law in Canada now includes a non-corporate entity. We will have to find the case law to demonstrate this proposition to be nonsense.

The second point, Madam Chair, is that in discussions of the committee the only reference to a report I hear is to a disallowance report. At this stage, I would like to remind members that all their options as a committee are before them: They include a regular report to the Houses in which a comprehensive government response would be asked for, a disallowance report, or no report at all. That decision has to be made.

You will remember that back on December 6 a particular motion was passed. Eventually, that was not proceeded with. Because the committee previously decided to disallow, that does not mean it is the only thing it can do now. That decision must be made afresh. What kind of report does the committee want? To disallow? Does the committee want to simply make a general report or require government response, and so on?

In terms of timing, we can do it, and we will do it. If the committee wants a final report drafted by next meeting, it would certainly not be the best job that we could do.


Senator Nolin: Which amendments were made to the report drafted after the decision was made in December? It would appear that a major decision was made in December and it is now a question of amending the report, in light of certain arguments raised by parties. However, the decision remains the same.

Mr. Bernier: Unless I am mistaken, the decision was subsequently quashed by the committee. When the time came to vote on the matter, I was asked to draft a disallowance report, which I did. When the vote was taken, the committee rejected it.

Senator Nolin: I see. I was not present when the vote was taken.

Mr. Bernier: Therefore, we are starting over from the beginning and all the options are before the committee.


The Joint Chairman (Senator Hervieux-Payette): Again, I would ask Mr. Wappel his opinion on the type of report, because maybe it is his report that he is talking about. Perhaps that is the kind of approach that you are recommending. We could have a report with each question stated clearly. We could then make decisions paragraph by paragraph. The report would incorporate all the information that was given to us since the hearings began.

We would then be in the position to tell counsel to go ahead with the new disallowance report. My understanding is that legal counsel would probably, while writing his new report, prepare legal arguments for another report eventually, in case that the committee wants one. We would have the best of both worlds, which is addressing the question properly and recommending to our respective entities — the Senate and the House of Commons — the proper course of action.

Mr. White: Could I ask a question of counsel to shed a little light on this? He has not had the benefit of looking up case law, but he has heard evidence here today and the questions asked by committee members.

Does counsel feel confident that a quality disallowance report could be written? Could he give us some sort of guidance without tying him to specifics, as he has not had the opportunity to do the necessary research? Where does he feel things are?

Mr. Bernier: I think that things are exactly where they were before, Mr. White. I do not think the sub-delegation argument or other arguments have been addressed.

Mr. White: Thank you.

The Joint Chairman (Senator Hervieux-Payette): We will proceed with Mr. Cummins' motion, that counsel be directed to prepare another draft disallowance report for the next meeting of the committee. That is the first motion. Those in favour, please so indicate.

Mr. Cummins: We should have a recorded vote, please.


The Joint Chairman (Senator Hervieux-Payette): I will not be voting at this time.

The Joint Clerk (Mr. Till Heyde): You plan to abstain?

The Joint Chairman (Senator Hervieux-Payette): Yes.

The Joint Clerk (Mr. Till Heyde): The Honourable Senator Gill.

Senator Gill: Pardon me?

The Joint Chairman (Senator Hervieux-Payette): Do you support, or do you oppose Mr. Cummins' motion?

Senator Gill: Are we voting on the drafting of a new report?

The Joint Chairman (Senator Hervieux-Payette): Let me explain the motion, since we are proceeding in both English and French. The disallowance report would invalidate the regulations.

Senator Gill: I vote for the regulations to remain in effect.

The Joint Chairman (Senator Hervieux-Payette): Senator Gill needs to understand the gist of the motion. You are saying then that you reject the motion.

The Joint Clerk (Mr. Till Heyde): Senator Gill is opposed, and Madam Chair abstains.


Mr. Till Heyde (Joint Clerk of the Committee): The honourable Senator Mahovlich?

Senator Mahovlich: No.

The Joint Clerk (Mr. Heyde): The Honourable Senator Nolin?

Senator Nolin: Yes.

Mr. Philippe Méla (Joint Clerk of the Committee): Mr. Farrah?

Mr. Farrah: No.

The Joint Clerk (Mr. Méla): Mr. Maloney?

Mr. Maloney: No.

The Joint Clerk (Mr. Méla): Mr. Easter?

Mr. Easter: No.

The Joint Clerk (Mr. Méla): Mr. Lee?

Mr. Lee: No.

The Joint Clerk (Mr. Méla): Mr. Macklin?

Mr. Macklin: No.

The Joint Clerk (Mr. Méla): Mr.Wappel?

Mr. Wappel: No.

The Joint Clerk (Mr. Méla): Ms Meredith?

Ms Meredith: Yes.

The Joint Clerk (Mr. Méla): Mr. Cummins?

Mr. Cummins: Yes.

The Joint Clerk (Mr. Méla): Mr. Ritz?

Mr. Ritz: Yes.

The Joint Clerk (Mr. Méla): Mr. White?

Mr. White: Yes.

The Joint Clerk (Mr. Méla): Mr. Bellehumeur?

Mr. Bellehumeur: Yes.

The Joint Clerk (Mr. Méla): Mr. Carignan?

Mr. Carignan: No.

The Joint Clerk (Mr. Heyde): Yeas, 6; nays, 9; abstentions, 1.

Mr. Wappel: I should like to suggest that at the next meeting this matter be the only order of business and that we deal with each and every one of the points that were in the previous draft disallowance report. As well, we should have counsel give us his advice and his department's advice based on all the evidence that was given so that we can make a decision with respect to each and every point at the next meeting, and then give counsel instructions as to what to do for the following meeting.

The Joint Chairman (Senator Hervieux-Payette): Is that clear?

Mr. Lee: We should invite our witnesses and the department to provide any comeback views at the earliest possible date because our agenda is moving along and we cannot wait.

Senator Nolin: Are you suggesting more witnesses? I think we have heard enough now.

Mr. Lee: No. My suggestion is that we invite them to provide any reply in writing on their views.

Senator Nolin: If they have something, they should do it well in advance of the next meeting, and in both official languages.

Mr. Lee: That is correct. Thank you.

The Joint Chairman (Senator Hervieux-Payette): To work in an orderly fashion, I would ask legal counsel to prepare the report that is now in our green section in each language, with comments to the side.

If there were a clear difference of opinion with the department, it would be reflected that we have addressed these questions properly; these hearings are accessible to the public. We bear a great responsibility with regard to the interpretation of the act and the rights that are coming from these discussions.

I would put the motion on the floor. We will proceed with the report that we have before us. If there are other things that legal counsel would like to add or clarify, it should be indicated in the text. I would feel more comfortable. We will have spent our time efficiently if legal counsel takes everything into account and incorporates it into the report. Otherwise, we would have done all this work for our own intellectual benefit, but it is more than that. We can certainly allow legal counsel to make some modifications according to his own judgment.


Mr. Bernier: Would it be possible to prepare a draft report using the material contained in the draft disallowance report? We could use a different font to highlight any additions. The committee would then have a draft disallowance report ready for the next meeting to be appended to the proceedings. The only thing left to do then would be to prepare a statement of disallowance.


Mr. Wappel: I do not have any problem with that, but I have to presume that another option is to decide that on some issues we wish to recommend disallowance immediately while on others we might wish to have a report to the Houses for comprehensive government response. It is not an either/or situation. There may very well be issues on which we wish to immediately move as a committee with respect to disallowance. That is why I suggested taking it item by item and making a decision as a committee at the next meeting as to which direction we wish to go. Obviously, if the committee decides on a particular matter that it wishes to go with disallowance, then we do, and there is no further delay. If we decide on another matter that we would prefer to report, then there is no delay on that. We report, and then there is the usual procedure that is involved in a comprehensive government report.

It is not an either/or situation of either we disallow everything or report everything. There could be a combination. I want to hear whether counsel agrees with that possibility, at least.

Mr. Bernier: Yes, I think the format I am proposing would obviously allow that because we can excerpt portions.

Mr. Cummins: We have to keep in mind that we will run out of time. Summer will be here if we do not move quickly the next time. We have to keep that in mind.

The Joint Chairman (Senator Hervieux-Payette): The preamble of Mr. Wappel was that we would address only this issue. The whole committee hearing will take place on this, and we will have to finalize our report. We will probably go a little late, so make sure you do not make any appointments at 10:30 on that day.

Mr. Easter: Four of us on this committee are also on the Standing Committee on Fisheries and Oceans in the House of Commons. That particular week, we are in British Columbia on some issues of importance to everyone, but in particular to Mr. Cummins. I am wondering with regard to timing whether thefour of us who are involved can be back on time for that May 9 meeting, at 8:30 in the morning.

Mr. Cummins: The only thing we can do is leave on the Wednesday afternoon on a 2:30 flight from Vancouver that will get us into Ottawa about 10:00 in the evening. The other option is 5:30 flight into Toronto and getting the first flight in the morning, but that means only three hours of sleep in Toronto, if you are lucky.

Mr. Easter: If that is the case, we will cut the back end of the committee travel off anyway. Your committee meetings are scheduled every two weeks at 8:30?

Mr. Cummins: It might be more helpful if this meeting were held later in the day on the Thursday, and then you could leave at 5:30 from Vancouver to Toronto and get up here at a reasonable hour in the morning, if that were a possibility.

The Joint Chairman (Senator Hervieux-Payette): There are not a lot of available rooms for a committee of this size, so let us lookat the alternatives in terms of the time frame. I agree with you that it might be difficult. We might start at 9:00 and go until 11:00. Usually other committees start at 11:00. I have one at 11:00, too. We will check with the clerk as to how best we can organize in terms of the logistics and having the proper facility to hold a meeting. In the meantime, I will put the motion to vote, unless I have a consensus that we go along with the report that Mr. Wappel is going with. Do you want a recorded vote?

Hon. Members: No.

The Joint Chairman (Senator Hervieux-Payette): Everyone agrees. Thank you for your participation.

The committee adjourned.

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