Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 14 - Evidence

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OTTAWA, Thursday April 11, 2002

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

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

[Translation]

The Joint Chairman (Senator Hervieux-Payette): At this time, I want to welcome the minister and the departmental officials who will be attending this meeting. I would also like to welcome my colleagues in attendance, in particular senators who took the time to come to this important meeting, even though the Senate is not in session this week.

Since the rules of our committee are fairly broad, the joint chairman and I have discussed how we should proceed in order to derive maximum benefit from this meeting.

[English]

We will ask the minister to make his introductory remarks. After that, I will invite Mr. Cummins to be the first questioner. We will then go to a senator and then a Liberal, and so on. We will allow up to 10 minutes per person, including the minister's answers. With that approach, members around the table will have a chance to ask questions and participate in this discussion in a fruitful manner.

We have several committee members who are on other committees and will have to attend them at ten o'clock. We know that the minister will be with us for one and a half hours. He has agreed that his staff can stay with us for another half hour if the committee feels it is necessary to ask more questions. We will begin now and we have until 10:30 this morning to review this important matter. I will ask the minister to start immediately.

Welcome, minister.

The Honourable Robert G. Thibault, Minister of Fisheries and Oceans: Good morning to all members of the committee. I thank you for the invitation to be here today. Unfortunately, I do not have quite an hour and a half. I have another engagement at ten o'clock, as do some of your members, but my staff will stay on.

[Translation]

I am pleased to be here today to discuss with you Aboriginal communal fishing licensing regulations. I was unable to attend your last meeting, so I thank you for your patience and for inviting me back this morning.

[English]

Before I start, I should like to introduce the officials from the Department of Fisheries and Oceans who are with me this morning. Ms Sharon Ashley, Director General, Policy Coordination and Liaison; Mr. François Côté, Senior General Counsel, Legal Services; and Mr. Steve Tierney, Director General, Aboriginal Policy and Governance Directorate.

[Translation]

As you can appreciate, these issues are technical in nature. Since I am not a lawyer, the officials accompanying me will be the ones answering most of your questions. I value the advice and opinions of this committee which plays an important parliamentary oversight role in reviewing regulations, and its suggestions have often proven to be extremely useful.

[English]

It is because I value your role in providing parliamentary oversight that I have taken your questions concerning the regulations very seriously. Today I should like to respond to some of your questions. I wish to reiterate that I believe the regulations are sound and properly authorized under the Fisheries Act.

They offer a flexible, balanced approach in accommodating the existence of Aboriginal and treaty rights with the responsibility to effectively conserve and manage our fishery on behalf of all Canadians. Quite simply, these regulations allow the DFO to manage otherwise difficult situations in a manner consistent with various court decisions.

The management of fisheries is complicated by Aboriginal and treaty rights issues. The law with respect to Aboriginal and treaty rights is not always clear. The law is evolving and, even when courts have made decisions, not all questions concerning the issues have been answered. Thus, for example, there can be uncertainty as to who has Aboriginal and treaty fishing rights, the nature and scope of these rights and who can exercise those rights, amongst other things.

In addition to these factors, fisheries can differ widely with respect to species, waters and management regimes. All fisheries access provided through the Aboriginal fisheries strategy and the response to the Marshall decision are provided through these regulations. Having a single regime in place that is flexible enough to take all these factors into account is certainly a challenge, but I believe the regulations give the balanced and flexible approach that is necessary.

[Translation]

These regulations have been in place since 1993 and are used to manage a myriad of fisheries that deal with multiple gear types, across many different areas, for many different species and at different times, such as: fisheries where an Aboriginal or treaty fishing right has been found by the courts, such as the Marshall decision; fisheries where fishing opportunities are extended on a policy basis — f or example, Aboriginal participation in fisheries provided under the Aboriginal Fisheries Strategy; and Aboriginal fisheries managed by Ontario and Quebec.

The licences issued under these regulations provide an effective enforcement mechanism to manage these diverse fisheries.

[English]

I wish to make it clear that when a licence is issued under the regulations, it is not a recognition that the Aboriginal group in question has an Aboriginal or treaty right to fish. Indeed, my department does not have the mandate to determine if a particular Aboriginal group has those rights, or their nature and scope.

DFO does, however, have a mandate to manage fisheries, and the department seeks to do that in a manner consistent with Sparrow and subsequent decisions, while conserving the resource on behalf of all Canadians. These regulations are the tools by which DFO does this.

Some members have argued that allowing Aboriginal communities to designate officials to fish under a communal licence is an unauthorized sub-delegation of my licensing power. That is not so. It is not the designation that allows people to fish. Designating who can fish is merely an administrative decision. It is the DFO licence that gives individuals the authority to fish, not the delegation. It is not unlike the kind of administrative decision that the corporation makes when determining who will actually fish under a licence it holds. One should not confuse the decision to designate who conducts the fishing with the power to authorize fishing through a federally issued licence.

These licences are issued for far more than authorizing communities to fish. They also contain many of the fishing rules, not just who can fish, but also where, when, how and how much. These conditions are essential tools for a minister to use in managing this resource responsibly and with an eye to conservation. DFO establishes the conditions of these licences. This licensing regime is entirely consistent with the guidelines given by the Supreme Court of Canada about the nature of Aboriginal and treaty fishing rights.

Indeed, the Sparrow and Marshall decisions clearly indicate that those rights are not individual, but are communal in nature. Aboriginal organizations are well-positioned to determine which individuals should conduct the fishing under the licence.

[Translation]

Licence conditions prevail over other regulations. Some committee members have argued that the Governor in Council does not have the authority to provide that valid licence conditions under these regulations can prevail over other regulations made under the Fisheries Act — regulations that are also made by the Governor in Council.

The Governor in Council can say where its regulations apply and where they do not. The Governor in Council could have said, for instance, that the other regulations did not apply at all.

However, the Governor in Council validly enacted a provision in the regulations that specifically provides that the conditions of a licence issued under them would prevail over other regulations under the Fisheries Act in the event of an inconsistency.

Parliament, through the Fisheries Act, has given the Governor in Council broad authority with respect to fisheries regulations. The regulation in question is authorized by the Fisheries Act.

[English]

Some members of the committee have also raised concerns that the concept of ``related activities'' is vague and thus the scope of the regulations cannot be ascertained. I believe that there is sufficient guidance in the act to determine the scope of the regulations.

The Fisheries Act has a definition of ``fishing'' so fish-related activity must be something related to fishing that is not fishing. When ``related activities'' is used in a phrase such as ``fishing and related activities,'' it encompasses all activities related to fishing. The regulation-making authority, in section 43 of the act, also gives guidance as to what related activities are through the types of headings that appear, including: loading, landing, handling, transporting, possession, disposal, operation of fishing vessels, use of fishing gear, records to be kept, et cetera. The expression ``related activities'' is used in the Fisheries Act and, thus, is a concept of the enabling legislation.

My department's view is that one should not attempt to define in regulation a term found in the enabling legislation. Any attempt to define ``related activities'' could be seen as an attempt to use subordinate legislation to change the scope of the act.

Another concern that has been expressed by this committee is that the regulations make it an offence to breach licence conditions. They contend that the Governor in Council cannot create an offence in the regulations and that that must be done in the act.

Our position is that the offence is not created in the regulations; it is created in section 78 of the act, which states that it is an offence to contravene a regulation. The regulation simply creates an obligation to comply with licence conditions.

[Translation]

Some committee members have raised concerns that the close times in the regulations are patently fictitious and not a bona fide use of the regulation-making power.

The department is of the view that the provision is valid. The Act clearly provides that the Governor in Council has the authority to establish close times and authorize the variation of these close times. The Governor in Council was given this broad authority because the management of the fishery requires this flexibility.

Because of the very diverse fisheries the regulations cover, it would be difficult and totally impractical to set out close times in regulations for each fishery. No matter what times were in the regulations, they would still be inaccurate and need to be varied, because of the many, often unpredictable, factors that affect the fishery resource.

[English]

These are only a few of the reasons I believe the regulations are valid and do the job they are supposed to do. I am sure some members may have related questions. However, before responding to your questions, there are a few general comments I should like to make.

There have been suggestions that this committee should have recommended disallowance of the regulations. I believe strongly that that is not an appropriate case for disallowance. First, I believe the regulations are sound and properly authorized in the Fisheries Act.

Second, with or without these regulations, there will be Aboriginal fishing, but without these regulations the government's ability to regulate and enforce these fisheries would be severely impaired.

Third, without these regulations in place, the government will lack the primary tool it uses to manage and protect this important resource while accommodating existing and potential Aboriginal and treaty rights. It would be more difficult for the government to effectively respond to past and future court decisions. There would be widespread protest and other unlicensed fishing. It will also open the door to costly, time-consuming litigation that can take years to resolve and can result in unexpected and unwanted results.

It would take unnecessary risk with the future of an important resource on which so many Canadian communities, Aboriginal and non-Aboriginal alike, depend.

Today, I have gone over some of the reasons these regulations are effective and why I believe they are sound. Honourable members, I thank you for your attention and look forward to your questions.

Mr. Cummins: Thank you, minister, for appearing here this morning.

The committee chair, in one of our earlier meetings when we were discussing your visit, noted that to ensure we have an efficient visit from the minister we should send him a copy of the draft report so that he will address that and not everything else the department is dealing with. Unfortunately, in listening to your address this morning, I do not think you have addressed the concerns that the committee raised in its draft report.

I shall quote a few sections from that report and ask you how you to respond to it. At page 6 of the draft report, we noted:

The principal concerns of the Joint Committee relate to the legality of the regulatory scheme created by the Regulations...

At page 7, it states:

Trite though this may seem, the legality of regulations is obviously not determined by how well those regulations serve the government's policy needs. The issue is not whether the Regulations provide the Minister with the required degree of flexibility; it is whether Parliament authorized the means chosen to give the Minister that flexibility.

I would suggest to you that that is the nub of the issue here this morning.

On page 8, it states:

The interest of the Committee lies solely in determining whether the means chosen to effect a particular government policy are lawful. In the case of the Aboriginal Communal Fishing Licence Regulations, the Committee has formed the opinion that those means are not authorized by the Fisheries Act.

Finally, at page 14, the nub of it:

Not only does section 4 represent an unlawful subdelegation of authority by the Governor in Council, it also involves an unlawful transformation of the authority granted by Parliament.

I should like you to address that key issue. That is the focal point of the committee's argument, namely, that section 4 represents an unlawful sub-delegation of authority by the Governor in Council, and that it also involves an unlawful transformation of the authority granted by Parliament. I do not believe that you addressed that particular point this morning, minister.

Mr. Thibault: I hope the comments I made covered that reasonably. As for the specifics, we will be giving your clerk a copy of a document addressing all the arguments for the committee. However, I wish to point out that we do not necessarily agree with the committee. That is why we are here. We do not see it as an issue or problem of sub- delegation. I think I have pointed that out.

If there are specific questions, I would ask the staff to answer on specific elements that you would like to raise within that area.

Mr. Cummins: Minister, it is the issue itself. The committee maintains that section 4 represents an unlawful sub- delegation of the authority of the Governor in Council and that it involves an unlawful transformation of the authority granted by Parliament. We had hoped that you would be able to address that issue in clear terms. That is what I should like an answer to.

Mr. Thibault: I will give a brief overview, and then I will ask the specialists to give you the details. There is not a sub- delegation of authority, as I pointed out in my opening comments. The licence is issued by the minister in accordance with the act and in accordance with those authorities. The designation of that fishing right done by the community that holds that licence is as an administrative tool as to who effectively fishes the licence. The community that holds the licence cannot create the conditions of the licence. The conditions are imposed by the minister in accordance with the Fisheries Act.

Mr. François-Bernard Côté, Q.C., Senior General Counsel, Legal Services, Department of Fisheries and Oceans: In determining whether it is a delegation or a designation, it is hard to see how it is a delegation. In fact, a licence for a fishery or for fishing is issued. In the case of Aboriginal communities, the right to fish being communal in nature, the licence — that is, how the particular fishery will be managed — is given to the Aboriginal community or organization that is involved. It is a bit like what is done with corporations. You have a corporation to which you give a licence, and then the corporation, through its administrative process or internal management process, determines or designates who will actually do the fishing.

In the context of a communal licence, to ensure that the rights that are recognized by the tribunals to the community are indeed exercised according to what the community decides, a measure has to be taken to ensure that the community designates who the fishermen will be, or fishers, and then the community has to report to the minister who has been designated to carry on the actual fishing.

``Designation,'' as the minister has said, is an administrative tool that has been recognized by courts of appeal as an administrative tool to deal with the myriad of possibilities that can occur in management of a complicated and complex matter like fisheries.

Mr. Cummins: Madam Chair, these are the same arguments that this committee has dealt with for five years. It is the same unsubstantiated nonsense that we have received from the department time after time. There is no substance to these arguments. The committee has responded to you on numerous occasions. My question is you, Mr. Minister, is this: Do you have anything new to report to the committee this morning? We have heard this nonsense before and have rejected it, and substantively rejected it. Do you have anything new to offer the committee this morning?

Mr. Thibault: First, I thank you for pointing out our consistency. If the questions and the answers continue to be the same, I think that is a good sign.

Mr. Cummins: I am not sure, minister. With the responses that have been given, I think we have demonstrated quite clearly their inadequacy, and the department has withdrawn those arguments and moved on to something new. You keep flicking from one argument to another, never maintaining consistency of response. I am saying to you that we are hearing the same litany this morning, and it is simply not sufficient.

Mr. Thibault: Then I do apologize. I misunderstood. I thought you said we continue to give the same answers.

Mr. Côté: What has changed over the last five years is a closer look at a number of court decisions and new court decisions on exactly that same subject. I refer to the matter of Peralta in the Court of Appeal of Ontario and the matter of Huovinen in the Court of Appeal of British Columbia, where, as a matter of fact, leave for appeal was denied by the Supreme Court of Canada.

The Huovinen decision is well-known to some members of the committee and perhaps to the whole committee. Huovinen is a decision of the Court of Appeal that has looked at this licensing regulation where it was challenged. The authority and the scope of the licensing regulation were looked at by the Court of Appeal, and the Court of Appeal upheld it. While I hear the arguments that are made by the committee, from a legal point of view, things have changed. There has been confirmation in the matter of Huovinen by the Court of Appeal of British Columbia and in the matter of Peralta with respect to the administrative nature of the designation in the Court of Appeal of Ontario. These matters have been looked at by superior courts in this country.

Mr. Cummins: Saying it is so does not make it so. The committee responded clearly to the nonsubstantive argument in Peralta at page 16 of its disallowance report. It replied as well to the case of Huovinen, which is irrelevant in this particular issue, at page 20 of its disallowance report.

We have heard your arguments before. We found them to be without substance. That is why the disallowance report is continuing. You are continuing with the same mantra this morning. It is simply not sufficient.

Mr. Thibault: We obviously have a disagreement. I take your points and the committee's report very seriously. I have challenged the department on it. I have asked for legal opinions from our staff and from Justice to see whether we are on solid ground. The arguments that were made to me are compelling. I believe that we are on solid ground. I have had discussions with various members of Parliament on this. They have challenged me also. I believe that those regulations are within my mandate and my authority under the Fisheries Act.

Mr. Lee: I should like to move to the issue of penalties for contravention of licence conditions, which is found under item E in the draft report.

It is the view of the committee at this stage that the department is not in a position to create offences by regulation unless Parliament authorizes it to so do; and in this case the committee is of the view that Parliament has not authorized the Department of Fisheries to create criminal or quasi-criminal offences. In this case, we are looking at section 7 of the regulations.

Is the minister of the view that the department does have the right to create offences by regulation without explicit authority from Parliament?

Mr. Thibault: Thank you for the question. I alluded to this in my opening comments. I will ask Mr. Côté to give further comment.

Mr. Côté: I will refer to three different sections. The first is section 7 of the regulations, which you have mentioned, Mr. Lee. It says:

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 the licence.

Therefore, there is no creation of an offence here. The regulation says that if you do not comply with any condition of the licence you contravene the regulation. It does not create an offence. You are not subject to criminal penalty. You must then go back to section 78 of the Fisheries Act, which says that, except as otherwise provided in this act, every person who contravenes this act or regulations is guilty of, and so on.

That is the offence that is created, and it is created by section 78 of the act.

Mr. Lee: Could you tell me which offence has been created by section 78?

Mr. Côté: The offence of contravening a regulation.

Mr. Lee: Thank you.

Mr. Côté: Section 43 of the Fisheries Act deals with the regulation-making power of the Governor in Council. Section 43 says, ``respecting the terms and conditions under which a licence and lease may be issued.'' Therefore, the regulations can be made that include terms and conditions of licences.

Mr. Lee: I understand that, but those words do not say that the department has the ability to create offences. Would you agree with me?

Mr. Côté: I agree with you. It is not section 43 that authorizes the Governor in Council to create offences. It is section 78 of the Fisheries Act.

Mr. Lee: Section 78 does not authorize the department to create offences either, does it?

Mr. Côté: No. Parliament has created an offence for —

Mr. Lee: Is it correct that neither of the sections quoted has authorized the department to create offences? Neither of the sections you have just quoted has authorized the department to create offences; is that correct?

Mr. Côté: No, you cannot create what already exists in the statute.

Mr. Lee: That is good enough. I am happy with that statement as well.

Mr. Côté: Therefore, in support of a regulatory scheme it is entirely proper for the Governor in Council to specify in a regulation that a violation of a licence condition is a contravention of the regulation, and if it is a contravention of the regulation then it is an offence pursuant to section 78.

Mr. Lee: Would you please explain to me the logic that allows you to say that the contravention of a licence condition is an offence? The statute does not say it. In fact, the statute in section 78 states clearly that it is not an offence and the minister has the authority to revoke the licence if there is a contravention of a licence condition.

The act has already provided for the consequences of a breach of licence condition, that is, the revocation of the licence, and I am still looking for the statutory authority that would allow the department to create a criminal or quasi- criminal offence. I suggest to you that, in the absence of the regulation passed by the department, that is, number 7 that we are dealing with here, there would be no offence involved in a violation of a licence condition.

There is no offence in the act and no offence in the regulations if it were not for section 7 of the regulations. Section 7, in effect, creates an offence by reaching back into the statute to rely on section 78, and on my reading of the statute Parliament did not give the department the authority to create an offence that is not already in the statute.

Mr. Côté: First, if section 7 had not been adopted by the Governor in Council, obviously we would not be talking about it. However, the Governor in Council has indeed adopted section 7 of the regulations, and section 7 does say that if you fail to comply with a condition you contravene the regulation.

Some may fear that, because it is an open-ended regulation, some officer of the department or the government will put in conditions of a licence that were never thought about by Parliament when it passed the Fisheries Act. You can impose a condition and if the fisherman fails to comply with that condition, then it is an offence. To that extent, I agree with you that that particular offence was not approved by Parliament when it passed the Fisheries Act.

However, the way that Parliament, the executive and the courts administer the work of a country is through statutes that, in this particular case, authorize regulations to be made. Yes, sometimes, if you fail to respect or comply with a condition of a licence, the regulation says that this is a contravention of the regulation.

You ask what the support is for this. This matter has been debated in our courts and I believe that these decisions have been provided to the committee previously.

Mr. Lee: With all due respect to the courts, they can talk about it all they want. From my point of view as a parliamentarian, if Parliament does not authorize the creation of an offence, it does not happen or it does not exist.

In this case, you are suggesting that the department has done it just because it wants to do it, it has to do it, it should do it or it is an appropriate thing to do. I do not see the logic in trying to suggest that the department is somehow enabled to create an offence when Parliament has already determined in the statute the response to the breach of a licence condition, that is, that the licence is to be withdrawn. How can the department then say: ``Okay we will double up on you here — we will create an offence; and we will make it an offence to breach a licence condition''? Parliament could have provided that in the original statute, but it did not.

Breach of licence condition results in a revocation of the licence. The department has decided, ``Well, we will make it an offence.'' From the point of view of the citizen, the citizen will say: ``There is no way I will let the administration create an offence. I will let my Parliament do it, but I will not let the bureaucrats do it.''

That is my view. You may want to reply, sir.

Mr. Côté: Obviously, I am not here to convince you, and I will not convince you. I just want to say that when I, as a prosecutor or as a lawyer, go to court, I have to abide by the law of the country. The law of the country is what Parliament has decided it to be, along with the Governor in Council and the courts.

All I can say is that the creation of an offence through a statute for failure to respect a regulation is already in the Fisheries Act. The Governor in Council has passed regulations saying, ``If you fish you need a licence, and there are some conditions that can be imposed.''

A breach of a condition of a permit or a licence can be made an offence or not. It depends on the Governor in Council. That is the legal scheme I would like you to consider. It is what has been considered by the Federal Court of Canada in the appeal in Barnett. That is all is all I can say, Mr. Lee.

Senator Beaudoin: I have but one point. We all agree that, over the course of the last few years, regulations have been very important in our statutes and that the courts are not always precise on the question of delegation.

However, there is one point that is clear-cut. If you have a delegated power, you cannot delegate or sub-delegate it, unless in the statute itself there is the exact and precise power to do it.

As they say in Roman law, delegatus non potest delegare. I think this is a principle of law. What I am worried about is the question of designation. Where is it stated that the designation cannot be a sub-delegation? I have never seen that before. It may be a sub-delegation or designation. I have not seen in the jurisprudence a ruling of a judge or a court saying, ``Well, if you designate this and that, it is not sub-delegation.'' It is probably only a question of terminology with which we are concerned.

Since the courts are not always precise and since we rely heavily on regulations, I am not surprised that we have this problem before us. It is a question of precision.

Having regard to the context, I think designation may be some kind of a sub-delegation.

Mr. Thibault: I certainly am not equipped to argue matters of law with Professor Beaudoin, who is an expert in the matter and who is well-known for his knowledge of the subject.

However, looking at it from my point of view and the practical effects of what we do, if I look at any fishing corporation that gets a licence to fish with conditions authorized by the minister in accordance with the Fisheries Act and that corporation does not fish, the corporation designates who will exercise that licence on its behalf. In accordance with the conditions of the licence it advises us of the request to transfer it to another company, if another company will exercise that right for them, and it requests the transfer from us. There are all those designations.

The courts have found that the right of Aboriginal communities is communal. By its very decision, the court is suggesting that we have to give the licence to the community. It is not to individuals within the community, but to the community. The community cannot practically fish. From a practical point of view, the community has to designate the individuals who will carry on the activity of its right on its behalf. Again, if the licence conditions are so, it must advise us who those individuals will be and it must follow all the other regulations that are part of the original licence.

It would be a sub-delegation if the community could issue conditions, ignore conditions, remove conditions or vary conditions. The community does not have that right. That right rests absolutely with the minister.

The argument we make is that there is no sub-delegation but, rather, there is a designation by the holder of the licence, which is the community, and that designation is to individuals who exercise it on their behalf.

Senator Beaudoin: I agree that we are concerned here with collective rights. You seem to conclude from that that because it is collective we need some kind of designation, or what I call a sub-delegation. We have to go one step further and identify or designate, but it should be stated in the statute. Since it is necessary to do that, it should say so in the act.

Mr. Thibault: If we went one step further in the regulations or the act to the point where we would be permitting or giving the authority to sub-delegate, then we could be seen to be or judged to be transferring some management initiatives, rights or responsibilities. We do not do so. Those responsibilities rest absolutely with the minister.

The licence is granted to the community and the community designates. I understand your point. You say sub- delegate; I say designate. However, I think it is the same transfer — hopefully, that is a term upon which we can probably agree — that you would find in a corporate situation or in a licence held by a father who aks us to let his son fish for one reason or another. That is a designation. There is no change of the regulations or the conditions of the licence.

The power is not in the holder of a licence to make any conditions or any limits on the authority. It is just to designate who exercises it on behalf of the original holder of the licence.

It is our contention that the sub-delegation would happen if we went beyond that. I would ask Mr. Côté to continue.

Mr. Côté: There is little I can add. Thank you, senator, for having taught me many years ago what delegatus non potest delegare means. I did not think it would be so useful.

Frankly, there is little I can add to what the minister has said, other than to repeat that, yes, you can look at whether it is a designation or a delegation. The minister has explained why, in his view, this is not a delegation — it is merely an administrative decision by the licence holder to determine who will exercise the privilege. The regulations require that a designation be made so that the licence issuer, the minister, knows that the people who fish according to the licence should truly benefit from the licence. This is the measure of control.

I can only say, Senator Beaudoin, that having looked at a similar scheme in the matter of Peralta the Court of Appeal has ruled that way. It places those at this table in a position to say that perhaps your view is right; on the other hand, the view we must take to the courts is the one that is dictated by administrative law.

Senator Beaudoin: You express your point of view very well. I simply say that if it is on the question of designation, it may be as important or equivalent to a sub-delegation in law. A court may rule otherwise. It is not very clear-cut.

Mr. Côté: I would just like to add, if I may, that to determine whether it is a designation or a delegation one may have to look at the management of the scheme — that is, the purpose of the act and the regulations and how have they been applied. The purpose of the Fisheries Act is to manage the fisheries. That is how they are managed in this particular situation.

Mr. Wappel: Minister, it is obvious that there is a difference of opinion. One of the reasons we have asked you to come here is to see if we can hone in on the rationale for the differences.

Following on Senator Beaudoin's line of questioning, I know you have had an opportunity to look at the draft report that this committee prepared. I will specifically ask you, Mr. Minister, or your counsel, to address several of the points made in that report to see whether we can focus in on what we can agree upon. We seem to know what we cannot agree upon.

I draw your attention to page 14 of the report. I should like counsel's view as to whether or not this sentence accurately represents the law:

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.

Mr. Thibault: It is my understanding that the authority rests entirely with the minister.

Mr. Côté: I would not agree with the member's statement. The power to issue the licence still rests with the minister.

Mr. Wappel: What then then is your view of section 43 of the act, in particular, subsections 6 and 7?

The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations...

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

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

Mr. Côté: Absolutely.

Mr. Wappel: So the Governor in Council makes the regulations governing the suspension and cancellation of licences and leases, correct?

Mr. Côté: Yes.

Mr. Wappel: Is it your position that the minister is the one who issues, suspends or cancels the licences under the regulations made by the Governor in Council?

Mr. Côté: The minister may, yes.

Mr. Wappel: What section of the Fisheries Act do you cite in support of that conclusion?

Mr. Côté: Section 7 of the statute says:

Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing...

By statute, the authority to issue the licence rests with the minister. The Governor in Council cannot and may not, by regulation, change what the law says.

Having read this excerpt that you pointed out to me, Mr. Wappel, it does not seem to be working well with sections 7 and 43. Under section 7, the minister issues the licence. The Governor in Council may make regulations, a regulations have been made under which the minister will issue a licence.

Mr. Wappel: Perhaps you can see why there might be some area for people to disagree, reasonably, on the interpretation.

As I understand it, section 7 provides that the minister may, in his absolute discretion, issue licences, and the regulations will provide the terms and conditions of the licences. What then does the regulation mean by the Governor in Council enacting regulations respecting the issue of licences?

Mr. Côté: I would expect it means how they are issued, where, under what conditions and by whom they are signed and on what form they are and what can be fished.

Mr. Wappel: In any event, it is clear to you that the only person that can issue a licence is the minister; is that correct, Mr. Minister?

Mr. Thibault: Yes.

Mr. Wappel: On page 14, in the second paragraph, the report states:

In enacting section 43 of the Act, it was clearly the expectation of Parliament that any instrument by which the Governor in Council delegated a licence issuing function to someone other than the minister would be a regulation.

In view of what you have just said, I take it you would disagree with that sentence because the only person who can issue a licence is the minister.

Mr. Côté: Yes, issue the licence or authorize the licence to be issued, yes.

Mr. Wappel: Now we get to the nub of the issue with respect to this part of the report. The minister, under section 4 of the regulations, then issues a communal licence to an Aboriginal organization. Your view is that that is a licence issued by the minister pursuant to section 7 of the act and section 4 of the regulations, and that under the Fisheries Act, that is a perfectly valid exercise of the minister's powers.

The communal organization itself then decides amongst its members the people who may fish. Your view is that that is not the granting of a licence but rather a designation.

Mr. Thibault: Absolutely.

Mr. Wappel: We are splitting hairs here — that is what lawyers do. Just so that we can be clear on this: The Aboriginal organization is deciding amongst its members who can or cannot fish, but the licence itself is issued to the Aboriginal organization. Is that the bottom line of your position?

Mr. Thibault: Yes.

Mr. Wappel: Then you would disagree with us when we say we think it is the Aboriginal organization itself that is issuing the licence to the individual fishermen; you would disagree with that?

Mr. Thibault: Absolutely. I would say that in that case we have the exact same transfer of the actual fishing or the right or the designation or the delegation — I do not use delegation in the sub-delegation sense — as you would have in a corporate company, ABC Limited, who is granted a northern cod code allocation and then decides which individuals will be on the boat and will exercise that right on their behalf. They will do the physical task of harvesting the fish in the exact same way.

Mr. Wappel: That is an interesting line of thinking. Let us explore that for a moment. The corporation is a legal entity. Could you give us your views on whether or not Aboriginal organizations are legal entities in general or in specific; and, if so, on what authority do you make that statement?

If there is a legal entity created by statute, namely, a corporation, it can only operate through human officers and it must designate the actions it can take through its human officers. However, if an organization has no legal status, then I would say there is an argument that it does not have the same powers analogous to the legal entity that a corporation is. If you could explain to us the legal status of Aboriginal organizations, that might help us a bit.

Mr. Thibault: Before I ask Mr. Côté to be more precise, I think the courts have decided that for me. In the cases of Marshall and Sparrow, the courts have decided that these were communal rights and that the bands had these rights. In the case of Marshall, the court decided that the band had contracted with the Crown in the treaties. Therefore, the right was conferred to them. It caused us to grant them that licence. I do not think it ever came to the question of whether it is a person before the law. I am not sure that the Fisheries Act restricts me to granting a licence to a person before the law.

Mr. Côté: Section 7 of the act says that licences can be issued. It does not say that they have to be issued to a natural or a corporate person. Therefore, the licence holder does not need to be, as you said, an incorporated body.

On the issue of Aboriginal organizations, the definition in the regulation states in section 2: ```Aboriginal organization' includes an Indian band, an Indian band council, a tribal council and an organization that represents a territorially based Aboriginal community.''

The regulations were trying to capture as many of these organizations as they could. Whether they are legal entities or not is another matter. For example, the Indian Act creates these bands and the band councils are, in a way, creatures of statutes because they are provided for in the Indian Act.

Through the years, courts have tended to recognize the right of bands or band councils to sign contracts, for example, thus enabling them to be sued. My sense is that the organizations, whether it is an Indian band or Indian band council, have the right to do all that is necessary to carry out the rights that they have. The licence isissued to an Aboriginal organization. It could be an Indian band or a band council. Whether this is a corporate or a natural person is interesting, but under section 7 of the Fisheries Act it is not an essential element. It may be useful for the minister to determine whether that band, which has the obligation under the licence to respect the conditions of the licence, lives up to those conditions. That is an issue for the minister. It depends on how the band is organized and whether or not it can be sued. These are some of the elements that the minister must think about in authorizing the licence to be issued to an Aboriginal organization.

Mr. Wappel: I have some questions on token close times, but I do not want to take all the time. If there is time left at the end, I would appreciate an opportunity to do so.

The Joint Chairman (Mr. Grewal): Minister, I appreciate your appearance before the committee, although we anticipated it a bit earlier. Unfortunately, I do not believe the concerns of the committee have been appropriately addressed today in your comments. This committee presented some 17 or 18 concerns in its draft report for disallowance, and we did not hear appropriate answers to many of those concerns. The difference of opinion is substantive as far as I have seen so far.

In response to the question from my colleague regarding section 43(f), I did not hear a convincing answer from the general counsel of the department. As far as I know, even the provincial ministers have authority, contrary to what the counsel indicated, for issuing licences to Aboriginal fisheries.

I will be asking questions at the end of my preamble, which is a bit longer, so please bear with me.

This committee demonstrated clearly that the regulations are defective in its various communications over the last five years. The lack of proper statutory authority is the main concern. The question is one of legality; that is, whether Parliament authorized the means chosen to give the minister that flexibility. That is the main issue, as far as I can see.

Minister, this committee is concerned with the rule of law. That is important to this committee, not the issue of important social, political or economic interests. That is a policy matter. We are not concerned about that.

The intent of the statute does not change with a change in the circumstances, which you indicate in your report, or time period for including decisions of the Supreme Court of Canada. That does not change the intent of the statute. Such decisions may result in a need to amend the legislation — that is where the solution may lay — but it does not justify disregarding the intent of the act. This committee, as far as I understand the communications, does not accept that the Fisheries Act is required to be read as providing authority to implement the court decisions. The government is required to seek appropriate legislation or legislative amendments to give effect to the decision of the court. The need for the government to manage fisheries in a manner consistent with court decisions cannot be accepted as justification for making regulations that are not authorized by the Parliament. That is the main contention.

Even though there are 17 or 18 issues mentioned in the report, we wanted to hear convincing answers to five of the issues to resolve this issue. Those five issues are: First, the scope of the regulations is vague and uncertain due to the lack of definition of the term ``related activities.'' The scope of these regulations is vague and uncertain due to the lack of definition of this key term. Your definition of this term is not convincing.

The second point that I think is important is that the regulatory scheme involves an unauthorized delegation of the Governor in Council's discretion to determine who can issue licences. As the senator pointed out, we did not get a convincing answer there either. Section 6 illegally delegates a power to the minister to override regulations made by the Governor in Council. However, the minister has no authority to override regulations made by the Governor in Council.

Section 7 of the regulations seeks to make statutory penalties that apply to a contravention of the act or regulations applicable to the contravention of a licence and condition. Section 9 of the regulation uses the token close time device, but I should like to hear your brief response on these issues.

Before you respond, I have two questions as well. How many communal fishing licences are in force now, and where? Do you have any information about that?

Mr. Thibault: No.

The Chairman: Can you provide that to the committee later on?

Mr. Thibault: Certainly, it can be provided.

The Joint Chairman (Mr. Grewal): An Aboriginal organization is required to apply for a communal fishing licence to be issued. Can an Aboriginal organization apply for a licence?

Mr. Thibault: Yes, it can purchase it and apply as anyone else.

I want to thank you for your comments. It is important that you point out that this is a matter of whether we agree with the intent of the regulations or the intent of the acts. It is a question of whether we are meeting our legislative responsibilities. Are we doing our regulations within our authority by statute? Essentially, it is important that our regulations be binding, that they hold up in court and that we do not find ourselves without regulations at any particular point because it can be problematic and traumatic for the industry generally and for the communities. We are interested in that from a management and a good business perspective within the department. We ask the same questions as you have asked.

Within the context of my comments, I did not make full argument on the points that you have raised, but you have been provided with documents that do. Certainly, we can clarify it for you if there are other questions. As to the scope, I will ask Mr. Côté to address that.

However, concerning the delegation and sub-delegation, in the debate and discussion we had earlier with Senator Beaudoin he pointed out that it is questionable that the question can be asked. You are going a step further by suggesting that it is in the air. I am not so sure. It is not, in my opinion. The only way we would ever get that final judgment would be from the court itself. That is how that would be decided.

As far as the minister overriding the regulations or the regulations overriding the minister, that is not my understanding either. My understanding is that the possibility or the authority to create regulations by Governor in Council that are the authority or that are complementary to the authority of the minister can be for the application of the minister's responsibilities and authorities. For example, with respect to licence renewals, the method of licence distribution, consideration and designation done by Aboriginal, commercial fisheries and any other fisheries where that is necessary could be contemplated by regulation. It does not change the responsibilities and duties of the minister.

Mr. Côté: I should like to say a few words about the related activities argument that the chairman mentioned and one that we just talked about, namely, the condition of a licence overriding another regulation.

With respect to the related activity, the challenge is always to make it as clear as can be. This is a challenge for the legislator and it is a challenge for the regulator as well. The issue that you raise in law is one of vagueness.

The Joint Chairman (Mr. Grewal): Perhaps the general counsel can go to the related activity. One of the communications I read indicates that when the general counsel of our committee asked for the definition of ``related activity'' the department said it related to transportation in fishing. It was a limited definition of ``related activity'' given to us.

Mr. Côté: If the chair will allow me to mention the Supreme Court of Canada decision in the Nova Scotia Pharmaceutical Society case, where the court Supreme Court of Canada directly dealt with the issue of vagueness in a statute. I would suspect that it applies equally to regulation. I will give the committee the reference. It is [1992] 2 S.C.R., page 606, which states Mr. Justice Gonthier's decision:

It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance. All it can do is enunciate some boundaries, which create an area of risk. But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made.

Here an ``enactment'' means a statute or a regulation. Using words such as ``related'' or ``including'' is a technique that Parliament and the regulator have used in the past to indicate the outer limit of the legal risk. As long as the legal risk can be determined according to what the Supreme Court of Canada has said, that is, that there is sufficient guidance for legal debate, then it is entirely prop proper. Parliament and the regulator cannot do otherwise.

The expression ``related activities'' in French is ``infraction connexe.'' ``Connexte'' means ``narrowly linked to'': ``lier étroitement.'' If you interpret a piece of regulation, you must interpret the word ``related'' very narrowly, ``related activity'' to the original, because you cannot define all of these related activities.

What has been provided to the committee was an example of transportation. That is related to fishing, obviously. There is room for legal debate. There is a risk. That is recognized by the Supreme Court of Canada. That is the explanation that I should like to make on that.

The Joint Chairman (Mr. Grewal): Your argument shows that, since it cannot be defined clearly, that is a root cause of uncertainty as well as weakness. That is why the ``related activity'' definition is very vague.

Going back to the statutory authority, as the senator clearly articulated respecting delegation and sub-delegation, sub-delegation is not authorized by the statute. That is a point of contention. I am sure that several members of the committee will agree that that has been the main issue. We will urge that this issue be resolved. Only then can we move forward. Otherwise, the committee will be left with no option except to disallow these regulations.

Going back to a quick question, minister, can a licence be given to an organization that has not even applied for a licence?

Mr. Thibault: Possibly, but I do not know where you are going with the question. I can give you money without you asking for money. You can return it, if you wish.

The Joint Chairman (Mr. Grewal): Why would you give me money if I did not ask for it? Either it would be owing, or something.

Mr. Thibault: Although I like you very much, I can assure you that I will not.

The Joint Chairman (Mr. Grewal): There have been questions that the licence was issued even before the application for one.

Mr. Thibault: I return to your original comments and the fact concerning the legality of these regulations and whether they are authorized under the legislation. legality of these regulations and whether they are authorized under the legislation. I do not think that last question relates to that in any way.

The Joint Chairman (Mr. Grewal): It does because if a licence is issued to an organization even without filing the application form, something is wrong somewhere in the licensing issuing authority.

Mr. Thibault: Again, I do not know of which case you are speaking. If it is a licence that has been granted subsequent to negotiations between the department and the receiving organization, then there may very well not have been a form filled out. There may not be any forms in existence for that purpose. A licence may have been granted subsequent to negotiations under Marshall or for other purposes.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): Mr. Minister, I would like to comment on the aim of today's exercise, primarily for your associates' benefit. We are not here to pass judgement and it is not up to you to mount a defence of your position, as if you were presenting a case to the Supreme Court. We have raised a number of points. In some cases, we may believe that you are right, while in other cases, we may disagree. The general consensus among committee members seems to be to want to remedy some of the regulations' shortcomings, rather than win on any one point in particular.

I believe this reflects the views of my colleagues in general. It is not a matter of wanting to back the minister into any kind of corner on this issue, but rather of ensuring that in a democratic system, our regulations and laws are sufficiently clear so that the persons who have certain rights can enjoy them completely. This committee has already discussed at considerable length with some of your colleagues from other departments a number of regulations and we have agreed on certain changes. After the meeting concludes, I want you to reread some of the comments in our report and to mull them over again very seriously.

I am not asking you to comment on what I just said. I simply want you to know where this committee is coming from so that we can work together. We are not here to back you into a corner.

Mr. Thibault: I would just like to respond briefly to what you said. That is precisely the challenge I issued to officials when I received the report and we discussed its findings. The challenge was to see if it was possible to amend the regulations in such a way as to address the concerns of the committee. Over time, there are other areas that we could talk about. However, it might be unwise to revisit the whole issue of delegation, or sub-delegation of authority, unless it were necessary to do so. As we understand it, this is not necessary at this time. Changes of any kind would involve considerable risk. For this reason, we have hesitated to take action, hence the importance of today's discussion.

[English]

Mr. White: I can understand that the minister may be concerned that he would be left without any regulations and that this would create tremendous problems for him, but the fact is that this issue has been in front of the ministry since 1997. There have been five years during which action may have been taken. I heard comments today along the lines of, ``It would be impossible to convince us,'' or, ``It may not be possible to convince us.'' I cannot overstress the seriousness of this issue. This committee has the power to disallow your regulations. It is very important that the departmental people take our input seriously.

Mr. Grewal pointed out that the nub of this issue is whether the Governor in Council has the authority to sub- delegate. I should like to read from a piece of correspondence from our counsel to the previous minister dated September 26, 2000. I shall read a couple of paragraphs, and I should like a specific answer to these three paragraphs. It refers to sections 4, 5(1)(b) and 8. It states:

The scheme that is put in place by these provisions is one whereby the Minister of Fisheries and Oceans or the Minister of Recreation, Fish and Game in the case of Quebec, grants authority to Aboriginal organizations to issue ``designations'' to persons or vessels in accordance with the method of designation specified in the ``communal licence'' by which the Minister grants such authority.

As counsel points out, the true character of any legal instrument is not determined by the name that you give to the instrument, but is to be ascertained on the basis of an examination of the legal purpose and effect of that instrument. Based on this approach, we believe that these sections put in place a scheme whereby the minister is given discretion to authorize the issuance of licences to fish by Aboriginal organizations. Thus, while the exercise of that discretion by the minister takes the form of what is termed a communal licence, it is apparent that the communal licence does not actually authorize anyone to engage in fishing. The authority to fish will flow from the designation effected by the Aboriginal organization. Despite its name, that designation must be considered a licence for the purpose of the Fisheries Act. The purpose of the provisions in question is to grant the relevant minister the discretion to authorize Aboriginal organizations to issue fishing licences. In our opinion, these provisions involve an unauthorized sub- delegation of the Governor in Council's authority to make regulations regarding the issue of licences.

That, really, is the nub of the issue. Gentlemen and ladies, you must convince us that you will do something about this, or give us a reasonable argument to convince us that we are incorrect. Otherwise, you leave us with no option but to disallow your regulations. You must deal with this issue. I invite your response.

Mr. Thibault: I can only make similar comments that I have made on a few occasions this morning. First, we do not view it as a sub-delegation. The minister grants the licence to the holder of the licence. The holder of the licence or the beneficiary owner, even in the case where it is an individual outside the scope of these regulations but similarly in fisheries generally, does not necessarily exercise the fishing himself or herself. That individual, corporation or entity may designate someone to do that. It is done in corporations, it is done in families, it is done father to daughter. It is common practice.

It is the exact same thing that is happening in the case of the Aboriginal fishery under these regulations. The licence held by the community is a communal licence. Individuals are designated. The licence itself includes the conditions. There is no authority to the community to vary those conditions. That would be a sub-delegation. That would be issuance of a licence if that authority were there. That authority remains with the minister and the conditions are issued on the licence to the community, or to the band as it were.

Mr. White: Minister, we heard this interesting argument when Mr. Wappel broached the subject. You are not convincing me that a corporate licence is similar to an Aboriginal licence in that a corporation is structured in such a way that it may have employees or contracted persons who work for it but profits or benefits flow to the corporation.

Are you telling me that the Aboriginal organization is set up the same way, that they employ or contract these people to go fishing and that the profits flow to the organization?

Mr. Thibault: In most instances. In fishing corporations or fishing partnerships — and for the great majority of cases the employees are not salaried — the individuals who carry on the fishing activity do so on a share-of-catch basis. It is an entrepreneurial arrangement. The captain gets a certain share, the crew gets a certain share, the owner of the boat gets a share, and the owner of the licence gets a share. That is negotiated and designated by the original licence holder to the individuals or corporations that do the actual harvesting.

Similarly, the band may choose to do that, or the Aboriginal community may choose to do that or have salaried people. They may choose to ask that that right for some period of time be transferred for a fee to another corporation while they are developing their capacity within their community, or they might do it on a per- cent-of-catch basis. However, the beneficiary holder of the licence is the community. In any case of which I am aware — and I may be corrected — the profits go to the community for the management of the band activities.

[Translation]

Mr. Farrah: To my way of thinking, when a communal licence is issued, it is important that licencing conditions not be breached. Otherwise, the department should have the power to take action to ensure compliance, in fairness to Aboriginals and non-Aboriginals alike.

For example, if an Aboriginal communal licence is issued, pursuant to the Marshall decision, and the next day, the community decides that from this day forward, the issuing of licences will be an Aboriginal matter, that it will set its own fishing regulations and licencing conditions, that it will decide catch levels and times, because for centuries it has been fishing at other times of the year and it wants to be the one to decide when its members can fish, even if this is detrimental to fish habitat, do the existing regulations and legislation allow for this possibility? Would we be powerless in court to prevent his? I understand and I will not deny the importance of clarifying the legislative provisions. However, if what I am suggesting could actually happen, do you think the courts would rule in your favour or not?

Mr. Thibault: Your question and comments tie in which what Mr. White said about delegation or sub-delegation. When a fishing licence or communal fishing licence is issued, it always comes with a number of conditions attached. When it comes to regulating the fishery, it is critical that regulations governing the fishing of certain species over time be respected. We are very confident that these regulations will withstand the scrutiny of the courts. It would be a different matter if they licencing conditions could be altered. Since Aboriginals do not have the right to do that, there is no sub-delegation authority. Licencing authority rests with the minister who issues communal licences and Aboriginals must abide by these conditions. They have not been granted any special rights that would allow them to disregard the regulations and the laws of the land.

Mr. Côté: I agree with you, sir. In response to the Sparrow and Marshall decisions, a number of agreements were negotiated with various Aboriginal communities. At present, two communities have brought cases before the courts and to comment on these particular cases would be inappropriate. In essence, the courts are being asked to rule on the point you have just talked about, namely whether the Aboriginal community has the authority to delegate, and how this authority compares to that of the minister under the Fisheries Act and the Constitution, and in the face of Aboriginal rights. I cannot say anything further because the matter is before the courts. The whole matter you raised has been well managed. You alluded to agreements and that is how the concerns expressed have been addressed. In the case of two groups which have presented an argument similar to yours, an agreement was not reached.

Mr. Farrah: If you were to accept the report that was tabled this morning, would this weaken the government's position in some way? Could the report's conclusions make our position clearer and put us on more solid ground, or are we better off as things now stand?

Mr. Thibault: With respect to the sub-delegation issue, there are tremendous risks involved if we feel convinced of the need to amend the regulations and the legislation to allow the minister to delegate this authority. If we were convinced that such action was necessary, then the matter would be addressed. When a group is issued a licence, it could argue that by receiving a fishing licence, it also receives the right to set fishing conditions. At present, the authority to set conditions is not transferred when the licence is issued.

Mr. Côté: As you might suspect, this is a political, not a legal, matter.

Mr. Farrah: Getting back to the concept of related activities, in another lifetime, during the Meech Lake Accord negotiations, there were those who argued that by defining distinct society, we would also be restricting the concept. The same could be said in this case. By not defining ``related activities'', the courts have more room to maneuver. I would imagine that is the reason why you have no desire to define the concept. This gives you an opportunity to mount a solid defence should changes occur or different activities be added to the mix over the years.

Mr. Thibault: You will have to excuse me because I am running late. Mr. Côté will gladly answer your question.

[English]

The Joint Chairman (Senator Hervieux-Payette): I have a list of three more interventions and three others who wish to intervene on the second round. There are people who must leave for other business, and this is an extensive question.

We will hear discussion on a second meeting. I feel we need to go deeper into this subject. I will receive members' suggestions as to whether we should ask the departmental officials to return to go deeper into the technical discussion of the regulations, as they are advising the minister. I am open to a discussion of how we should proceed. A number of members wish to intervene on a second round.

Mr. Cummins: To be quite honest, I was disappointed with the minister's response this morning. I do not think he presented any new information. There was the correspondence back and forth from the minister. At the very least, I expected a more substantive response than we received in the past. That was not there. There is nothing new in what he said. The issues are still outstanding.

I am not sure if there is any point at this particular juncture in continuing to question the officials of the department. I do not know what we will learn by that. We can proceed, but I wonder about the purpose.

The Joint Chairman (Senator Hervieux-Payette): I am in honourable members' hands. Certainly, we have had a report. However, we will not have time today to delve deeper into issues, to cover every section and to give the right to intervene to every member. I will not even complete the list as it stands if we adjourn at 10:30. The joint chair and myself will find another time to at least cover the agenda and then decide.

There are some arguments that are clear for me that I am willing to buy, but some others I do not. Right now, I might not totally support the report that we have before us; however, I would like to discuss that with the minister. This is not a matter of being on our side right and on their side wrong, but making the right decision for all the pieces that we are contesting. The question of sub-delegation is more than one question. This is probably the most important one, but there are others with which we must deal. We have not dealt with them in depth.

My suggestion would be that I complete the list with the 10 minute intervention with Senator Moore, Mr. Brien and Mr. Easter, and then we will adjourn and ask the officials to return.

[Translation]

Mr. Farrah: I have one last question concerning the definition of related activity. But first, Mr. Côté, could you answer my previous question?

Mr. Côté: From a legal standpoint, you are quite correct. It has been written that when it comes to interpreting legislation, it may be a mistake to provide too many definitions. That is the dilemma faced by the drafters of legislation and regulations.

As the Supreme Court held in Fitzpatrick and in other rulings, the industry in question is regulated. Those who participate do so willingly, with knowledge of the fact that it is regulated. It is not as if we were dealing with a Criminal Code provision. Those involved in the industry know what is meant by the term ``related activities.''

[English]

Senator Moore: The licence was granted by the minister to the Aboriginal community. The Aboriginal community designates who among its members can fish. Can the Aboriginal community designate to a person who is not a member of its community the right to fish on that licence?

Ms Sharon Ashley, Director General, Policy Coordination and Liaison, Department of Fisheries and Oceans: Typically, yes, they can designate. There are no restrictions regarding to whom they can designate it.

Senator Nolin: What was the answer?

Ms Ashley: There may be more specifics in the licence, but there are no restrictions respecting the person they can designate to fish. Typically, it would be members of their communities, but it could be others.

Senator Moore: I do not know about that. I think this whole analogy of the Aboriginal community being the same as a corporation has just gone out the window. I am sorry. I do not know who came up with that idea, but it does not help me at all. Do you know any situations where that has happened?

Ms Ashley: I am not personally aware of any, no.

Senator Moore: I am not talking about selling quotas. I am familiar with that on the Atlantic coast. I am talking about an Aboriginal community and its licence and granting the right to fish that licence to non-Aboriginals. Has that happened?

Mr. Tierney: I do not know exactly.

Mr. Cummins: For the record, even American citizens have come to Canada and fished under these commercial regulations.

Senator Moore: American citizens who are Aboriginals or non-Aboriginals?

Mr. Cummins: As Aboriginals named by the community.

The Joint Chairman (Senator Hervieux-Payette): I am sorry. To be specific, were they American Aboriginals, or were they Americans?

Mr. Cummins: American Aboriginals.

The Joint Chairman (Senator Hervieux-Payette): I think it is important to have that notion clarified. At the border of Quebec, the Mohawk people do not even recognize the frontier, and they do not consider themselves as American or Canadian but as Mohawks. This is another question that we must be aware of. It is not the same thing as someone who does not belong to the Aboriginal group.

Mr. Cummins: In fact, non-Aboriginals have fished under these licences as well, senator.

The Joint Chairman (Senator Hervieux-Payette): That is another case. I think it is important that the people from the department give us specific information on this. They will have time before the next meeting to find this information. If rights granted under the permit to Aboriginal communities were given to people other than the Aboriginal community members is the question my colleague would like to have clarified.

Senator Moore: It is one thing to say ``yes'' to that in theory, but has it happened?

The Joint Chairman (Senator Hervieux-Payette): That is my question. I want to know the facts.

The Joint Chairman (Mr. Grewal): I understand the comment by Mr. Cummins to indicate that he wants to know more about it, and I think that would be helpful. It shows that, under these regulations, when there are licences given to an Aboriginal organization, they are using that sub-delegation to give licences to other people, including Aboriginal Americans. That clearly shows illegality leading to abuse of the regulations as well. That is what comes out if this is true.

Ms Ashley: We can provide more information for the committee. I would offer an example where someone other than an Aboriginal person or community member could be fishing, and that would be for training purposes, which I believe may happen under Marshall.

The Joint Chairman (Senator Hervieux-Payette): We can certainly find some difficult cases. I have dealt with the question of white people marrying Aboriginal people and that of their status. You do not automatically become an Aboriginal person, but you can live on the reserve and you can be part of the life of the band. You can be married to one but not necessarily be conferred the rights. I know the difficulty of dealing with these matters.

[Translation]

Mr. Farrah: Perhaps I can provide a partial answer to that question, in so far as the East Coast is concerned.

The Joint Chairman (Senator Hervieux-Payette): You can?

Mr. Farrah: For the East Coast, I can. As far as our region is concerned, namely the Gaspé, the Magdalen Islands and some parts of New Brunswick, further to the Marshall decision, since Aboriginals who had access to the resource were not equipped to fish and did not have the knowledge that boat captains had, it was agreed that in order for the band and the community to access the resource as quickly as possible, non-Aboriginals would be allowed to fish for the Aboriginal community. However, there was one stipulation made in our region: there had to be at least one Aboriginal on board the vessel while the non-Aboriginal was catching the Aboriginal community's quota. Obviously, the department had put forward some plans.

[English]

I do not know about the West Coast. I am just telling you about what happens on the East Coast in my riding.

[Translation]

In the meantime, our department is working with the Department of Indian Affairs to arrange for training for Aboriginals. In Gaspé, a young woman, a Micmac band member, recently received her level four vessel captain's licence. The arrangements that were made were designed to ensure that Aboriginals accessed the resource as quickly as possible, in response to the court's ruling, while in the interim, steps are being taken to provide for their autonomy. I am talking about what went on in our region. I do not know the situation on the West Coast. However, some non- Aboriginals are fishing under these conditions on behalf of Aboriginals.

The Joint Chairman (Senator Hervieux-Payette): You have shed some light on how these regulations are applied.

Mr. Brien: I am having trouble understand the logic here. For instance, if you were to go along with what is being suggested, that is if you were to opt for clearer legislative powers rather than for the regulatory authority, we have the minister saying this: we are reluctant to create a situation where the communal licence holder may think the powers he has are much broader than they actually are. The legislation could be relatively clear on this point. They may mount a challenge, but if I understand correctly, there are already court challenges to the minister's power to set restrictions, even in the case of a communal licence. Some communities are challenging the minister's authority over this matter. If the challenge was based on the legislation, then perhaps it would be possible, but it is no different today.

Mr. Côté: You are correct. If I understood the minister correctly, we are going to be revisiting the whole issue. Whenever plans are made to amend legislation, however slightly, Parliament and the minister must anticipate every possibility. I believe that is what the minister meant, although I do not want to put words into his mouth. You are right in that even if the legislation is amended, some groups will still mount challenges. The question is how to limit or minimize the risks involved. I believe that is what the minister was trying to say.

Mr. Brien: Can you understand that as far as we are concerned, this is not a valid argument? We would like this position to be supported by clear legislative provisions. Of course, people would be free to challenge them, as it now the case.

Mr. Côté: You are absolutely correct.

Mr. Brien: I simply wanted to clarify that.

[English]

Mr. Easter: Just on the last point raised on allocations in fishing, I chair the Fisheries Committee in the House of Commons and we are currently drafting a letter, at the request of the committee, requesting information on a number of things including the Aboriginal Fishing Strategy and what its cost has been to the people of Canada, what the allocations have been, the licences, the equipment, who is fishing what, et cetera.

The letter is not yet finalized. It will be before the end of the week and we will copy it to you as well as any responses we receive.

My question is directed to the departmental officials and deals with their documentation and their presentation here this morning. There seems to be a view of the department that the department is right and this committee is wrong. From my point of view, you have presented some compelling arguments on some cases, but not on all.

I suggest to the committee that if the department is taking the position that it is right and the committee is wrong that is a pretty risky position.

I will not say your regulations are wrong, because I am not 100 per cent convinced they are, but is the department willing to propose changes that would give this committee confidence that everything is covered so that we will not have the problems that the committee currently perceives exist? Are you willing to propose a time frame for making changes to cover off the serious concerns this committee has raised?

If you are not, based on what I have heard around this table, you are playing a very risky game.

Ms Ashley: Our position is not that the committee is wrong. Our position is that we believe we have the legal authority for these regulations and the Department of Fisheries and Oceans is supported by the Department of Justice in that view. That is our position. The committee has its view and I would not want to comment on the committee's position.

Mr. Easter: You raise an important point, but you raise my hackles a little when you suggest that the Department of Justice is onside. I remember very clearly, prior to the Marshall decision coming down, how confident the Department of Justice was that this would not be a problem.

Mr. Côté: I was not there.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): Mr. Côté, you do not speak for the entire Justice Department, after all.

Mr. Côté: No. You understood the gist of my remarks.

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

[English]

Mr. Cummins: One of the critical issues here, Madam Chair, is that the minister repeatedly referenced the notion of a corporation and compared what was happening with the granting of a licence to a corporation. In fact, a corporation and an Aboriginal organization are two separate entities. A corporation is legally recognized at law as a person, whereas an Aboriginal organization is not. The Fisheries Act applies to persons. Therefore, in fact, there is no parallel.

The second issue of concern with the minister's analogy of a corporation is that, if a corporation holds a licence, the corporation cannot simply name someone to fish that licence. That individual must be licensed by the department. Therefore, there is no parallel. That is not the case with licences issued by Aboriginal organizations.

Mr. Côté: With respect to whether the Fisheries Act applies to persons, I do not see that in the Fisheries Act. As I said, you do not need to be a natural or corporate person to have a licence. As a matter of fact, you can be convicted of an offence under the Criminal Code even if you are not an incorporated body, and of course the Criminal Code applies to the regulations and the offences created by the Fisheries Act.

I tried to explain the nature of the legal personality or non-personality of Indian bands, band councils and band members. I cannot go further than that.

With respect to corporations, the licence is issued to the corporation. Of course, you need not be a shareholder or an employee of a corporation to fish pursuant to the authorization given to the corporation, but I would prefer to come back with details on how this is done, unless Mr. Tierney has some precise comments on who fishes pursuant to a licence given to a corporation.

Mr. Cummins: It is only someone who has been given the authority to fish the licence by the minister. That is my point.

Mr. Côté: I should like to check that before answering that.

Mr. Cummins: Are you telling me that you are not sure whether British Columbia Packers, as the owner of a licence, can designate someone to fish their vessel without that person having been granted the privilege by the minister?

Mr. Côté: Personally, I am not sure of that.

Mr. Cummins: I am absolutely dumbfounded that you would not be certain of that.

Mr. Côté: This is a matter of fact.

Mr. Cummins: I just cannot believe it.

Mr. Côté: We will find out the details on that. I am not saying you are wrong. I just do not know and it is not for me to answer.

Mr. Cummins: If these regulations are rejected by a court, that is, if a court supports the findings of the committee, how will the department respond? How will you regulate the fishery this summer?

Mr. Côté: That depends upon on what basis they strike down the regulations and also what level of court does that. If it is the Supreme Court, as in Marshall —

Mr. Cummins: Regardless of what court does it, if it specifically addresses the issue, that is the law of the land.

Mr. Côté: I appreciate that. I seem to recall that a court has done exactly that in the matter of R. v. Cummins.

Mr. Cummins: That is correct.

Do you know what this is?

Mr. Côté: I cannot see it from here.

Mr. Cummins: Have you seen one of those before?

Mr. Côté: It is a registration card.

Mr. Cummins: That is a commercial fishing licence. It is granted by the minister and you cannot fish without it. Only the minister can grant it. You cannot fish a company boat unless are you in possession of one of these.

Mr. Côté: As I said, these are facts of which I am not aware. Perhaps Mr. Tierney can answer that now or find an answer for you.

Mr. Cummins: Amazing.

Ms Ashley: Would that be a licence or a registration? There is a difference.

Mr. Côté: It is an FRC. It says ``Fisheries Registration Card.''

Mr. Cummins: It is a fisherman's identification card.

The Joint Chairman (Senator Hervieux-Payette): I guess we will see where we are going soon. It is 10:30. We still have Mr. Wappel and Mr. Lee. We agreed that we would finish at 10:30. I do not think we have covered everything or are coming to a conclusion, unless the committee wants to stop its reflection and make a decision. I am in your hands and ask members where to go from here.

Mr. Cummins: In my view, given the failure of the minister to bring anything new to the table this morning, is it inappropriate to now request counsel to bring forward to committee another disallowance report?

Mr. Lee: I am not of the view that nothing new has come forward here today, although I sense some new perspective on some of the issues. I think we have five or six separate technically legal issues. I have not had an opportunity to walk through two or three of them with the departmental officials. As a committee, I do not think we are finished with walking through these things on a technical basis. I need more time.

I should tell members that I spent 2.5 hours on this a couple of days ago with departmental officials. I spent personal time on this. I have not had an opportunity here today to walk through some of those technical items. I think the committee should have the benefit of that. I think we need more time. I am not ready to conclude our deliberations. I think we have made some progress today in terms of opening issues. I think we can make more progress by spending a bit more time on it.

Mr. Wappel: I want to hearken back to your words, Madam Chair, indicating that this is not an ``us'' or ``them'' situation. This is a situation where, obviously, reasonable people are disagreeing. We are identifying areas where there are clear differences of opinion. I want to append to your remarks, if I may, the remarks of Mr. Easter, wherein he reminded our witnesses that not everything is necessarily as is believed once a court of law takes a look at it.

Despite the complete assurances of the Department of Justice in many cases — and one can think of the tobacco regulations as an example — the Supreme Court of Canada sometimes disagrees. I also am not ready because I have a couple of questions, and I want to put them on the record for the next time because I do think the committee should ask the officials to come back again.

The department made a great point about the similarity between Aboriginal organizations and corporations. I think it was brought out well by Mr. Cummins that there may in fact be a difference in treatment between corporations under these regulations and Aboriginal organizations. I would be interested to see if, in fact, they are treated differently how the analogy can be used, first.

Second, along the lines of the questioning that I had earlier, it was indicated that section 7 of the act provides that the minister may issue licences and that section 43 does not provide for the Governor in Council to designate which officials or which organizations may issue licences. However, I point out that section 2, which is the definition section of the regulation that we are considering, actually states that someone other than the minister who appeared before us can grant licences, namely, the minister in Quebec and the minister in Ontario, who are not federal ministers of fisheries. If those ministers are designated by the Governor in Council to issue licences, then it is at least arguable that the Governor in Council could designate Aboriginal organizations to issue licences. That is the position on page 15 of our report, as I understand it, at the very last sentence, immediately prior to the words ``response from the Department of Fisheries and Oceans.''

If the regulation permits ministers other than the federal Minister of Fisheries to issue a licence, then why cannot the regulations permit named Aboriginal organizations to issue licences in accordance with the words on page 15 of the draft report?

I should like someone to consider that in view of our evidence today.

Mr. Cummins: In response to my friend, a separate set of regulations governs Ontario.

Madam Chair, I believe that the government is seen to be playing the department. Indeed, the government is seen to be playing fast and loose with the law on these things. That is certainly the opinion from where I come.

As I have reiterated before to this committee, there are 250 people who have been charged and who have cases outstanding before the courts in British Columbia whose defence, in part, has to do with the illegality of these regulations. There is at least one court decision that is pending on this matter, and that decision could be coming down in the next month. It will rule on the matter before us.

I think it would only be appropriate that the committee would have spoken clearly, which it has in the past, on this issue.

The last point that is worth noting is that fishermen are threatening to fish in defiance of the department on this issue. As long as the matter remains before the committee and has not been dealt with by Parliament, the issue, then, is in limbo. These people will feel encouraged to proceed with their threats to fish in defiance of the department this summer.

Given those very substantive reasons for moving ahead on this matter, I will move that the committee instruct counsel to bring forward a disallowance report at the next meeting of this committee.

The Joint Chairman (Senator Hervieux-Payette): Do you want to comment on that, Mr. Grewal?

The Joint Chairman (Mr. Grewal): Not on that point. I want to comment generally on the restoration of non- partisanship on the part of committee members. Committee members have come up with substantive arguments.

I feel that we are not left with many options. Members of the committee have made convincing arguments. They have contributed with substantive arguments today.

At the same time, I am disappointed that the minister and his staff were unable to convince us that the regulations are not illegal. I am left with no other option, and I am sensing that a consensus is building in the committee, that, in a sense, we are not buying the argument that has been given to us. There is no substance in the argument given to us by the minister. I am inclined toward the disallowance, and I see such a consensus building in the committee. I have no problem with giving it another shot. I am sure that the members will take it in the spirit of building a consensus in this committee and go ahead with an appropriate solution to the problem.

Mr. Lee: Because it is my hope that we will be continuing to deal with this at another meeting, I want to ask departmental officials to provide a bit more information, if they could, on any instances of licence issuance to any of the following: a vessel, by which I mean a fishing vessel; a corporation; a cooperative or a fishing cooperative; and a municipal corporation or any other entity, whether it has a legal personality or not. If you could do that, it might be helpful.

I also wish to mention that Mr. Wappel's remarks put on record what appeared to me at first blush to be a very patent instance of sub-delegation to provincial fishery ministers. We will have a chance to deal with that later.

Mr. Wappel: I cannot support the motion. It is premature, and I think it is unfortunate that we keep being pushed on this matter. We have made progress. We have identified areas where the department should go back and examine its position. I should like our counsel to be able to have the opportunity to clearly examine the evidence that was given today and report their views on consistencies, inconsistencies and areas that may not have been answered to our satisfaction.

When and if we issue a disallowance report, we want it to be as bulletproof as possible. If we are to have a disallowance report that will seriously affect the fishery, we want to ensure that it stands up to the utmost critical scrutiny. I should like to be sure that we have explored every avenue and have given the officials an opportunity to explore our points of view again, based on the comments that all members have made, possibly to have direct discussions with our counsel, and then have an opportunity to come back here as early as possible — because we are not dealing with the minister anymore, we are dealing with department officials — and answer the remaining questions. In my opinion, that would be more productive than forcing a vote on whether we should instruct counsel to prepare another draft disallowance report.

I am speaking against the motion, but I want to be clear that my purpose in doing so is that I want any disallowance report that we issue to be as tight and as legally defensible as possible when we have to argue it in the House of Commons.

Mr. Easter: Mr. Wappel has made the points that I want to make, other than that I, too, am speaking against the motion at this time. I do think a disallowance motion has a lot of implications on the fishery that must be considered as well. We must be absolutely sure that such a motion will not create more problems than it solves.

I should like to see the department review the discussion and the questions that have been raised here today with the minister and take this issue very seriously and give it priority so that the committee can deal with it in the immediate future.

Senator Beaudoin: Mr. Lee has raised an interesting problem. In our system, we cannot delegate between Ottawa and the provinces. The courts have rejected inter-parliamentary legislation. I should like to know a bit more about that.

It is possible for Parliament to delegate some power to a provincial minister or institution. We do that in the field of transportation. That is another point that should be studied by Mr. Bernier. That is all I have to say. That point was not raised before this morning.

[Translation]

Mr. Brien: I can understand the reluctance on the part of Mr. Lee, Mr. Wappel and Mr. Easter, but I do not think what is being requested at this time commits us in way is so far as the report on disallowance is concerned. One does not preclude the other. We can continue to seek clarification in the wake of what was discussed today, while preparing to draw up a new report. Then at an upcoming meeting, we can get down to our discussions more quickly. We could issue instructions for a disallowance report, but the matter could drag on for months and months. I think the motion is a sound one in that it does not commit us yet. We are not adopting a disallowance report, we are simply issuing instructions to prepare a new one. I will be voting in favour of the motion. Otherwise, no one will take us seriously. They stated their position firmly today and they are not likely to change their minds. That seems clear enough to me. It is one thing to reconsider a few technical points with a view to preparing a better report, but it is obvious that we will not agree. I support the motion, which in no way prevents us from seeking additional information. However, it means that we would be able to make some progress at our next meeting.

The Joint Chairman (Senator Hervieux-Payette): When you say that one does not preclude the other, the fact remains that the report drawn up by our legal counsel, Mr. Bernier, is 27 pages long. It represents a considerable amount of work. Moreover, we have yet to touch on every single point raised. We would be putting our legal counsel in an awkward position if we were to ask him to draw up a report without having any real substance to work with, apart from three or four hypotheses about three or four different issues. Of course we want qualified officials to work for us, but at the very least, we need to give them the information they need to do their work. As to whether the department will stand firm on its position, we have asked a number of questions and we are waiting for answers. We need to get to the bottom of this matter. We have yet to discuss certain areas and we should do this at some later date. Contrary to what my joint chairman said, I do not see any kind of consensus emerging among members. There is a resolution on the table and I think we should vote on it. Basically, to say that there is a consensus among committee members implies virtual unanimity on a particular issue.

Mr. Brien: When we are not working to any kind of timetable and merely go from one meeting to the next, we are not taken seriously. I have trouble taking the work of this committee seriously for lack of a timetable. I would agree to holding another meeting to further clarify certain matters, but I think we need to wrap this up soon, otherwise, it could drag on indefinitely.

The Joint Chairman (Senator Hervieux-Payette): The committee has no intention of letting that happen.

Mr. Brien: We need a clear timetable.

The Joint Chairman (Senator Hervieux-Payette): I agree.

[English]

Mr. White: It is patently obvious that the department has failed to take this committee seriously or, frankly, the concerns that we have raised, seriously. We heard today some convoluted and incredible answers to questions that were asked. Even without examining the long list of other issues that we are now faced with, I think there is ample evidence that the department is unwilling or unable to answer some of our concerns, and I think it is time we applied some additional pressure. If we vote to delay the disallowance at this point, we are just giving them more time to, frankly, frustrate us. We must give them incentive to move on this issue.

I agree with points that have been made in terms of providing an incentive to move this along and to give us a firm timetable. I move that we should vote for that disallowance report today.

The Joint Chairman (Senator Hervieux-Payette): I shall return to my comments: There is no such thing as ``us'' and ``them.'' I think it is ``we,'' meaning Canadians, trying to find solutions. There are not two camps in this. I think we have made some progress. Personally, I know more about the whole thing than I did before.

On the touchy issue of Aboriginal rights, I am not an expert on this question and I am not a member of the Aboriginal Peoples Committee. In order to have a better understanding of the questions of Aboriginal rights and to be fair, we must have an answer to the question of what is implied when we say ``a corporation will operate.'' This was the analogy. I never thought it was a legal concept when the department talked about ``corporation.'' I thought they were trying to give us an image of what it meant to them in terms of those who were supposed to hold these permits.

I need to continue my reflection. Certainly we need more information on this question of Aboriginal rights and how we interpret that when the rights are granted by the minister to a band or to a council, and so on. Our counsel will look into this question further.

[Translation]

Mr. Brien is proposing that the committee meet once again in the not-too-distant future to further consider this matter. Perhaps we can get answers to some of the questions that have yet to be broached. Then the committee could decide where to go from there.

I am told the next meeting is scheduled for April 25. Are committee members and witnesses free on April 25?

Mr. Brien: Is that when our next meeting is scheduled?

The Joint Chairman (Senator Hervieux-Payette): Yes. We need to wrap up our study.

[English]

Mr. Cummins: Madam Chair, there is another issue before you start making arrangements for the next meeting, and that is there is a motion on the floor. Your comments, with all due respect, are irrelevant. This is not a matter of Aboriginal rights; this is a matter of the legality of the regulations. Counsel for the committee has done an outstanding job in detailing the shortcomings of those regulations. Over five years, the department has not been able to respond to the difficulties pointed out and clarified by counsel for the committee.

The opinion that counsel for the committee has brought forward is one that has been supported independently. Senior legal counsel in British Columbia arrived at the same opinion independently. We have with us this morning departmental lawyers who do not even recognize a commercial fishing licence and who seem unaware that a commercial fishing licence issued by the minister is required to participate in the fishery in this country. That is an astounding admission by legal counsel for the department.

Madam Chair, with all due respect, we should take a vote on the motion. I want a recorded vote on it. I must say that, in my view, this dithering is inappropriate. The committee's credibility is at stake here if we do not move ahead on this matter with some haste.

The Joint Chairman (Senator Hervieux-Payette): Before you took the floor, Senator Moore had asked to speak. We will take the vote after that.

Senator Moore: Madam Chair, what you have said and what Mr. Wappel has said with respect to the spirit and the manner in which this committee functions is true, but I am not convinced that the department sees it that way. The brief of our counsel is tremendous. I have not seen any concessions or admissions that things should be clarified or that there should be some changes. I am prepared to wait until the next meeting to give our counsel the opportunity to look at the presentations that we have heard here today. It may make a difference; it may not. However, at the next meeting, I will be looking to make a decision here.

The Joint Chairman (Senator Hervieux-Payette): Let us proceed with the vote.

Mr. Cummins moved:

That counsel bring forward another draft disallowance report at the next meeting of the committee.

Is it your pleasure to adopt the motion?

The Joint Chairman (Senator Hervieux-Payette): No.

Senator Beaudoin: Yes.

Senator Moore: No.

Senator Nolin: Yes.

Senator Pearson: No.

Mr. Easter: No.

Mr. Farrah: No.

Mr. Lee: No.

Mr. Proulx: No.

Mr. Wappel: No.

Mr. Bagnell: No.

Mr. Cummins: Yes.

Mr. Lunney: Yes.

Mr. White: Yes.

Mr. Brien: Yes.

The Joint Chairman (Mr. Grewal): What about my name? Senator Hervieux-Payette has voted already, so I will vote too.

Mr. Jean-Michel Roy, Joint Clerk of the Committee: There is no vote unless there is a tie.

The Joint Chairman (Mr. Grewal): I know that; however, Senator Hervieux-Payette already voted so why should I not vote?

The Joint Clerk (Mr. Roy): All right. Mr. Grewal?

The Joint Chairman (Mr. Grewal): Yes.

Do we have agreement from the department officials that they will be available on April 25?

Ms Ashley: For DFO, yes.

The Joint Chairman (Senator Hervieux-Payette): We do not need their agreement. They are asked to come. We will give them notice that there will be a meeting.

The Joint Chairman (Mr. Grewal): Since some members have requested that the officials be at the next meeting, I wanted an agreement from them that they will be there.

Mr. Côté: I had planned to be in B.C. that week.

Mr. White: Change it, then.

Mr. Côté: It is something that had been planned for a while.

Senator Moore: Send someone else.

Mr. Côté: I had to mention it.

The Joint Chairman (Mr. Grewal): Since the other two officials are available, would it be all right if he sent a replacement?

Senator Moore: Absolutely.

The Joint Chairman (Mr. Grewal): Yes.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): Our next meeting then will be on April 25 and we will wrap up our study at that time. What are the results of the vote?

The Joint Clerk (Mr. Till Heyde): Yeas , seven; nays, nine.

The meeting is adjourned.

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