Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 16 - Evidence

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OTTAWA, Thursday, May 9, 2002

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 9:21 a.m. for the review of statutory instruments.

Senator Céline Hervieux-Payette and Mr. Gurmant Grewal (Joint Chairs) in the Chair.

[English]

The Joint Chairman (Mr. Grewal): Honourable members, we have two items before us today. The first is the Aboriginal Communal Fishing Licences Regulations.

SOR/93-332 — ABORIGINAL COMMUNAL FISHING LICENCES REGULATIONS

SOR/94-390 — ABORIGINAL COMMUNAL FISHING LICENCES REGULATIONS, AMENDMENT

SOR/94-631 — ABORIGINAL COMMUNAL FISHING LICENCES REGULATIONS, AMENDMENT

SOR/95-106 — ABORIGINAL COMMUNAL FISHING LICENCES REGULATIONS, AMENDMENT

The Joint Chairman (Mr. Grewal): I am sure that all members have received the discussion document. We will go through it item by item, and then get ideas from committee members. Finally, if the will of committee is to proceed, we will have the draft report prepared.

I will open the floor for discussion. Let us start with the first item.

Mr. François-R. Bernier, General Counsel to the Committee: Mr. Chairman, as I understood committee members at our previous meeting, the general wish was to have the material before today and decide whether the committee would report, and if it were to report what form the report would take, that of a regular report or a disallowance report.

Also, the suggestion was made that the committee might adopt a different approach on different aspects of these regulations, to wit, that some items might be the subject of disallowance while others might not.

We have expanded, if you will, the analysis of the department response portion of the material that has already been distributed two or three times to the committee.

What we will need is a decision of the committee on the substantive provisions of the regulations so that we know what to draft for the next meeting. The preliminary considerations are just that; they will go where they can, depending on the decision of the committee on substance.

Perhaps the discussion could be opened on the scope of the regulations, which is really section 4, and the subdelegation objection, and decide how the committee wishes to deal with that aspect of the regulations.

The Joint Chairman (Mr. Grewal): Honourable members, is there an agreement that we start with the scope of regulations first?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): I open the floor for discussion.

Mr. Bernier: Mr. Chairman, I was totally mistaken, scope of regulations has to do with the lack of a definition of related activities in the regulations rather than the subdelegation argument.

Mr. Cummins: Mr. Chairman, we have the report from counsel. Is there any advantage to looking at the report section by section? In the section on preliminary considerations, there are several pages that are new and different from the last time. Perhaps the chair might inquire of counsel if there is any advantage to starting at the beginning of the report and seeing if there is any discussion on any aspects in that regard.

The Joint Chairman (Mr. Grewal): Would you prefer to start with preliminary considerations?

Mr. Cummins: Yes, perhaps we could address the report from beginning to end.

Mr. Bernier: At this stage, Mr. Cummins, we do not know whether this is a report, two reports or three reports. That was left open at the last meeting. Where those preliminary considerations end up depends on what happens with the rest of material.

The Joint Chairman (Mr. Grewal): We will begin with the scope of regulations. We will discuss preliminary considerations at the end.

I open the topic of scope of regulations, which is section 4.

Mr. Wappel: If it would be in order, perhaps counsel could summarize each of these items as we go through them — not read the document, just quickly summarize where we were when we considered the previous draft report, the arguments of the ministry, and what counsel has discovered. That would give us a bird's-eye view of the section, and presumably we would have some discussion on it and make a decision.

The Joint Chairman (Senator Hervieux-Payette): What do you wish to do with the previous three sections?

Mr. Wappel: Madam Chair, I am following along on what counsel did. He wishes us to address first the scope of regulations, which is the second blue tab in.

The Joint Chairman (Mr. Grewal): Perhaps, counsel, you could give us an overview of the situation in a summarized form.

Mr. Bernier: Mr. Chairman, the comment of the committee related to the use of the term or the expression ``related activities'' in these regulations.

The regulations allow or contemplate the issue of a communal licence to authorize related activities. The committee wanted to know exactly what this meant. The department initially gave an explanation. The committee then requested that this explanation form part of a definition in the regulations so that everyone would know and no one else would have to ask the question. The department refused to do that and stated that the explanation they had given was not exhaustive.

When the department appeared, its general counsel referred the committee to the Nova Scotia Pharmaceutical Society case. As explained in the analysis, that was a Charter case. The case dealt with the question of whether a prohibition, set out in the Combines Investigations Act, was so vague that to prosecute for its contravention would infringe section 7 of the Canadian Charter.

Clearly, the comment that the committee made has nothing to do with the Charter. This was a drafting comment of the committee, as the committee often makes. When regulations seem to the committee to be imprecise, the committee will recommend that greater precision be brought to the regulations. The defence offered by the department was not particularly on point, relevant, or helpful.

We are still back at the same place. A term is being used. It would be helpful if the regulations could at least give some guidance as to the meaning of the term ``related activities.'' The definition does not need to be exhaustive. It could be a definition that states that ``related activities includes'' and then list some of the things that are understood to come within the meaning of that term.

This is really a drafting issue, not a legal issue. The department treated it as a legal issue, when it is not.

Mr. Wappel: Perhaps this is a good place to start our discussion about whether there should be one report or different types of reports. This is a drafting matter. It does not sound like disallowance is appropriate for something of a drafting nature.

I would suggest that this is an example of something where our committee could send a report. There is no use pursuing it further with the department. The lines in the sand are drawn. However, we could certainly send a report to both Houses of Parliament outlining our view, our concerns and our recommendations, and then ask that the government look at those.

I do not know how other members feel, but this might be a good start to identifying what we think should be disallowed and separating that from what we think can be dealt with in a regular report.

Just to get the discussion rolling, I suggest that this issue of related activities forms part of a report that we will give to the Houses, which may include other things in this pile, but which would not be of sufficient gravity to warrant disallowance.

I say that just to get the discussion kicked off.

Mr. Lee: In assessing the relative importance of this, and returning back to our counsel's suggestion that this is more of a drafting issue than anything else, I tend to think it is not that important. I agree that it is just drafting. I ask myself what harm it does if the department were to license a related activity. In my view, they do not have any authority to license it anyway.

They could overassert themselves. It does not prohibit someone from doing a related activity, unless they were to create an offence, as they appear to have done in Item No. 4 in our list of problems, where they have appeared to have created an offence through the backdoor where someone breaches a licence condition or a term of a licence. It is possible for someone in bad faith to construct a scenario where they would license a related activity, put in a term in relation to that related activity — never envisaged of course by the statute originally — have someone breach the term of a condition and then charge them with breaching a term of a condition relating to an activity that was just related to fishing. However, that is fairly circuitous in terms of potential public interest risk, in my view.

I am suggesting that we do not have to hang all our hats on this particular thing. We can make our point. We do not have to be that aggressive in suggesting that disallowance is the only solution to this. It is probably a difficulty that may come up with other files in other departments over time, in any event, in terms of vagueness of the terms they use in the regulations.

I am suggesting we lowball our interest in this.

Mr. Cummins: I am not really sure I understand Mr. Wappel's intent, other than, perhaps, to take the issue of disallowance right off the table.

I do not think anyone is saying that the matter revolves around this particular issue. This is one piece of the whole puzzle. It is the cumulative effect of the puzzle that is the problem. The regulations have been recognized by the committee as being invalid. This is merely a part of that puzzle.

After the regulations were recognized as invalid, the committee said, ``These other matters are also of concern,'' and addressed them as well. I do not see the point in stripping away, if you will, all of the supporting documentation that shows that this is a bad piece of legislation.

I do not understand the purpose of it, as I say, other than, perhaps, to weaken the argument for disallowance. If the committee were to backtrack on its stated position that these regulations should be disallowed at this point, then its credibility is finished.

Mr. Wappel: Mr. Cummins mentioned my name. Therefore, I should say something.

I have no intention whatsoever of attempting to weaken the concept of disallowance as it relates to any particular sections of the regulation that we feel should be disallowed. We have been going around on this issue for so long that I am getting a little confused. My understanding was that it was not every word of the regulations that we found to be illegal or improper; it was certain sections and certain words in certain sections.

Our disallowance report dealt with those aspects of the regulations. Obviously, in the absence of cleaning up those regulations, then the regulations have to be disallowed in their entirety.

I keep repeating what I believe to be the case. I ask counsel to immediately jump in and correct me if I am wrong. However, from the beginning we have been told that there is nothing to prevent the Governor in Council from issuing licences to Aboriginal organizations. That is a policy decision. The problem is that the regulations do not do that. They say that the Governor in Council delegates to the minister the Governor in Council's power to give communal fishing licences to Aboriginal organizations.

To repeat continually that the committee has found the policy improper, or even to imply that the committee has found the policy improper, is simply a false statement. Even in the material, counsel goes to great lengths to point out that if the regulations had been drafted in a different manner the Governor in Council could do what it wants to do, and, indeed, can delegate, for example, the provincial ministers.

That was a long answer. No, I am not trying to derogate from disallowance. As Mr. Lee said, I do not think that every single objection in here requires a disallowance.

As we proceed and see what may require disallowance, it will be up to counsel to draft a report recommending disallowance, if that is what we decide, on whatever issues we decide. He will embellish that with other things. There might then be in another report, or even in the same report, a part where we talk about areas where we want to report to Parliament but we do not feel it is of sufficient gravity to recommend disallowance of that particular section of the regulations.

That is where I am coming from, Mr. Cummins. In coming up with something here, Mr. Lee mentioned, for example, the penalty section that the committee feels should be disallowed. If that is the case, then so be it. If that is the view of the committee we will recommend that that particular section be disallowed for the reasons we state.

Mr. White: Mr. Chair, to clarify the situation, I should like to ask a question of our legal counsel. Will the treatment of the related activities issue more in a lowball form, to quote Mr. Wappel, and reporting that as a drafting problem, along with making suggestions, in any way weaken the arguments that other parts of the regulations are invalid? Do you see that as a weakening of the argument in any other aspect?

Mr. Bernier: No, I do not think so, Mr. White. To be perfectly honest, the next section, which is the scheme, that is, the subdelegation aspect, is obviously the core of this whole regulation. If that is disallowed, it does not much matter what you have by way of related activities or not because it is the heart of the scheme that has been disallowed.

By then, if the disallowance were to proceed to a revocation, you would need a completely new regulation anyway.

Mr. White: The redrafting would occur then and probably, possibly we hope, would take care of this other issue; is that right?

Mr. Bernier: Possibly.

Mr. Cummins: That is my understanding of the issue as well. The problem is that I see the report as it was originally written as a comprehensive report, with a section, as counsel suggested, around which the whole issue of disallowance revolves. Mr. Wappel, I am at a loss to understand why you want to do two reports. What is wrong with the style of report that was done originally, if we decided to go ahead, that is? It is clear that the issue of disallowance does revolve around the next section. All the report is saying is, ``That is the nub of the issue, but these other matters are also worth note.''

It seems to me that one nice, compact report that covers the field is the best way of doing it. The committee's thoughts are all contained in one report. It will then be clear to anyone what the objections are. It will not be necessary to go fumbling through to find another report. I do not understand why you want to separate it out.

The Joint Chairman (Senator Hervieux-Payette): My impression of the proposal on this side is this. If we have two sections that we can deal with right away and make a report, the minister can act upon it. It may take some time for the disallowance question to go through the whole process. While it may be more dramatic to have a disallowance report into which we put everything, in order to obtain the success we want — since some part of it will have to be legislated — I feel that those that can be changed right away we can report on. We can send that report to the minister and have it acted upon right away. That would be more practical than throwing everything in the air and just waiting for everything to be dealt with in a certain period of time. It would be my suggestion that the things that can be dealt with right away be dealt with in a report. They are more form than substance. The disallowance report is probably the proper vehicle to deal with the substance of where we want to act.

That is how I see it. I think it is a practical approach. We can go through each section and decide which one goes in a normal report compared with a disallowance report. We can do two reports.

We could also send a letter. We have the proposal for a report, which I am quite willing to look it. However, my impression is we still have the choice to send a letter, or an ordinary report, or a disallowance report.

What I see in the proposal of Messrs Wappel and Lee is that we have two different reports in order to address the question in a more efficient manner.

You have your own view, which is to have only one. If we can go through each section, we will get to a final conclusion and decide which one needs a disallowance report.

Mr. Cummins: I do not see the purpose of moving ahead with a report on this particular item if you will just follow it up with a disallowance report. Obviously, the preliminary report would be of no consequence, if you were to proceed with disallowance.

The disallowance report demands immediate action. I think the committee has sent enough letters on this matter. It has been going on for over five years. Another report does not demand immediate action; it only puts it off further.

Eventually, the issue will be: Will we go with disallowance or not? Perhaps me might as well postpone discussion of what we will do with this particular section until we arrive at a conclusion on the next section, which is disallowance. If the committee decides that it will proceed with disallowance, then so be it. However, the form of the report may be another issue.

There is no point in sending an early letter saying, ``Change this,'' if you will follow it up with a disallowance report, which means the whole issue is out the window.

The Joint Chairman (Mr. Grewal): What I have heard thus far is that some agree with disallowance while others would like to see the committee table an ordinary report in Parliament, asking for a comprehensive response from the government. We will have a mixture of these things.

If we can have substantial conclusions drawn from various elements of this whole discussion, then it will be easy. We can revisit it very briefly at the end of the meeting and then summarize some of the accomplishments we have made today.

Mr. White: Might I suggest, then, Mr. Chair, that we proceed to the next section and just leave in the air for the moment this two-report thing. It may become clearer as we go ahead whether Mr. Cummins' suggestion is better or the two-report suggestion is better. Rather than try to hash it out right now, why do we not proceed?

The Joint Chairman (Mr. Grewal): We have an idea where most of us stand. In my opinion, we should move on to the second item, unless someone has something else to add on this section.

Let us proceed to the substance of the Aboriginal Communal Fishing Licence Regulations.

Mr. Bernier: As I have mentioned, Mr. Chairman, this particular scheme is the heart of the regulation.

I will not go over the material previously handed out, as I have said on at least two or three occasions. I will add, however, certain comments as a result of the minister's appearance and various documents submitted by his officials.

The Minister of Fisheries and Oceans appeared before the committee on April 11, 2002. It became sadly clear that despite many efforts to convey the committee's views the minister's advisers simply do not understand the nature of the objection of the committee, even at this late stage.

In his presentation to the joint committee, the minister said 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.

As I have just said, this statement demonstrates that the minister's advisers have not understood that it is not the minister's administrative power to issue licences that the committee considers to have been unlawfully delegated, but the legislative authority of the Governor in Council under section 43(f) of the Fisheries Act.

In section 43(f) of the act, Parliament has given the Governor in Council a discretion to decide by regulation who will be authorized to issue such licences as the regulations may provide for. In other words, the Governor in Council has been given authority to enact a licence-issuing scheme that parallels that set out in section 7 of the act.

If the Governor in Council properly exercises the discretion granted by Parliament, then the Governor in Council will, in a regulation made under section 43(f), identify the person or body that is authorized to issue fishing licences. This can be a provincial minister. It could be an Aboriginal organization. It could even be the federal minister.

However, this is not what the Governor in Council has done in this case. Under the scheme of these regulations, the minister is not issuing licences, i.e., a permission to fish notwithstanding a legal prohibition; he is deciding which Aboriginal organizations will be authorized to issue licences. The discretion to decide who can issue licences is the very discretion that Parliament intended the Governor in Council to exercise by way of regulation.

The department has sought to minimize the importance of the so-called designations issued by an Aboriginal organization, which this committee of course says are the real licences. The minister does not agree with the committee on that point. According to him, it is not the designation that allows people to fish but the communal fishing licence.

I would refer members to section 8 of the regulations. Section 8 of the regulation states that ``no person other than a designated person may fish under the authority of a licence.''

You have a clear legal prohibition here against fishing unless you hold a designation. I think that makes pretty tenuous the view that the designation is some mere detail of internal administration. I suggest it also makes it clear that, legally, the designation is in fact equivalent to a licence, as that term is traditionally used in the Fisheries Act, i.e., a permission to fish, notwithstanding a legal prohibition.

The communal fishing licence, which has been the so-called communal fishing licence, the minister argues, is that which really gives a right to fish. Again, if you look at the scheme, when the minister issues a communal fishing licence no one can fish; no one can fish until a band council has issued designations.

To say that the communal fishing licence authorizes fishing is a bit like my saying that it is the Pacific commercial fishery regulations that allow people to fish. They are an essential part of the scheme, but, in and of themselves, until an individual obtains a licence under the Pacific commercial fishing licence regulations he or she cannot fish simply on the basis of the regulations.

In the same way, until a person is designated, that person cannot fish on the basis that there is a communal fishing licence out there. Section 8 states that no person other than a designated person may fish under the authority of a licence.

Now, as to the communal fishing licence being a licence, I disagree strongly with the department's counsel that the Fisheries Act does not only apply to persons, whether they are natural persons or corporations. In order for this act, or any act, to apply to entities other than persons, it would be necessary that this be expressly provided for in the act itself. The Fisheries Act does not do that.

Second, the department itself has acknowledged that the licence is, and I quote, ``a permission to do something that the holder otherwise would not be able to do legally.'' In other words, the holder of a fishing licence must necessarily be a person to whom a legal prohibition applies; otherwise, the person would not need a licence.

We must ask ourselves whether a legal prohibition against fishing can be made to apply to an Aboriginal organization that is not a corporation. The answer to that is clearly no. Such an entity cannot be prosecuted.

The third point I should like to make in that regard is that I find it interesting to note that, even though the department insists that the so-called communal fishing licence is in fact a licence and that the holder of that licence is the Aboriginal organization, the regulations provide no penalties whatsoever in the case of a breach of the terms and conditions of the licence applicable to the holder of the licence. Quite the contrary, the regulations expressly provide that it is the designated person who will be held liable for any breach of the terms and conditions of the communal fishing licence — essentially, in the same way that a fisherman who is licensed is the person who will be held liable for the breach of the terms of the provisions of a regulation under which a licence is issued.

Therefore, if anything, the appearance of the minister simply served to confirm in our minds that the so-called communal fishing licence is really no licence at all, that it is an instrument of delegation, an instrument whereby the minister is in fact doing what Parliament expected the Governor in Council to do by regulation under section 43 of the act.

Mr. White: I should like to ask legal counsel whether this anonymously penned document handed out to us at the beginning of the meeting today changes the analysis in any way.

Mr. Bernier: No, it does not.

The Joint Chairman (Senator Hervieux-Payette): It is not anonymous. This is the answer to things that were left unanswered from our last meeting that came from the Department of Fisheries. We asked for some clarification. We received that document as clarification. I understand that it would have been better to have the source of the document identified, but this is coming from the department. It is at our request that this document has been prepared.

Mr. White: Thank you for the clarification, Madam Chair, but it has neither letterhead nor a person's signature at the bottom. It could have been written by anyone, anywhere.

Mr. Lee: I must admit that I am currently suffering from an absence of focus on this issue. I do not want to take a whole lot of time to explain why I am confused. I want you to understand why. You may be able to help me through this, counsel.

On one hand you say that the essence of your objection is the mechanics of delegation. The Governor in Council should have created the scheme rather than the minister creating the scheme. That is the area of focus here. That is where the problem is.

Yet, in your explanation to us now, you have provided us with points, including one that says that it is really the designation that is the creation of the licence. However, that is one or two steps removed from the Governor in Council.

If the problem is the mechanical delegation, why are we looking two steps down the line at whether the recipient of the so-called designation or licence is a person or not? Why do we care whether the terms of the licence would be enforceable against a person or a non-person if our issue is the mechanics of the delegation? I do not understand that.

If it is our thesis that the Governor in Council could have created this whole scheme and could have done it validly, if they had just done it the right way in the first place, then I do not understand why we are dealing with the minutiae of who holds the thing at the end of the food chain.

I do not know if I can get much clearer here. Perhaps you could just answer a question. Could the Governor in Council have created this whole scheme validly, and we would have ended up with the same scheme, the same set of designations, and just taken the minister out of the loop?

Mr. Bernier: If you take the minister out of the loop, we do not have the same scheme. That is the problem.

Mr. Lee: Could you have?

Mr. Bernier: Could they have done it? Yes, the Governor in Council is perfectly empowered, as far as I am concerned, to make a regulation in which he would provide essentially what is now provided by the minister in the communal fishing licence. He would make a regulation authorizing band X to issue fishing licences and set out in his regulation the terms and conditions that must be observed by the band in the issuing of licences and the terms and conditions that must be included in licences issued by the band, and so on.

Mr. Lee: It could have been done?

Mr. Bernier: Yes. The problem here is that the Governor in Council said he could not be bothered, and gave it to the minister to do. There is the subdelegation, and there is also the transformation of power.

The Governor in Council acting under 43(f) must do so by regulation. There is an instrument that ends up published in the Canada Gazette. In this case, not only has he delegated the function to the minister, but he has also authorized the minister to proceed by way of an administrative document that is not registered in the Canada Gazette — the so-called communal fishing licence.

Mr. Lee: Why are we spending time on whether the recipient of the licence is a legal entity or not?

Mr. Bernier: It has to do with correct legal characterization of the documents involved. It is the department, Mr. Lee, that is arguing that the communal fishing licence is a real fishing licence.

Mr. Lee: With respect, it matters not whether it is real, artificial, or a construct of someone else's imagination. If the Governor in Council had done it the right way in the first place, it would have been a valid scheme, is not that correct?

Mr. Peter Bernhardt, Counsel to the Committee: Perhaps it might clarify things if I come at it this way: In a proper scheme, you would not have a communal fishing licence. Instead, you would have a regulation made by the Governor in Council saying Indian bands can issue licences. You would no longer have designations but something you would call a licence. It would be exactly what a designation is now, except without this vagueness about whether it is a licence or a designation.

What you have is a regulation empowering bands to issue licences, which would put them on a proper legal footing, as this is a regulation made by the Governor in Council as opposed to a regulation simply asking the minister to decide, through this guise of a communal licence, who will actually get these licences we will call designations instead.

Mr. Bernier: If they called them licences, they would be admitting there is a subdelegation; it would be apparent on the face of the thing. That is why different names have been given to these things.

Mr. Lee: In the end, even if the Governor in Council had created the scheme, you still would end up with a designation. Someone down the line will have to designate someone to go out and fish. We do not have a problem with designations per se. We have a problem with improper subdelegation.

Mr. Bernier: Mr. Lee, if the Governor in Counsel, in his wisdom, chooses to call licences designations in a particular regulation, he is quite free to do so, so long as we all know legally what that thing is. Call it something else, fine.

Mr. Lee: That is my point. We are dealing with semantics.

Mr. Bernier: The Governor in Council should have made a regulation providing for the issue of designations by band councils; he instead has told the minister, ``You decide, in a so-called communal fishing licence, who will issue the designation.''

Mr. Cummins: Just a comment on the previous discussion. It seems to me that the future possibilities are not at issue here. What is at issue is the matter before us, and that is the regulations as we see them. Whether it is possible to achieve the same end in a different way is not the issue before us.

In support of what counsel said, I have a copy of a communal fishing licence for the Tseshaht and Hupacasath Indian bands for salmon. That particular document reads, in part, as follows: ``The band manager of the Tseshaht First Nation and the office manager of the Hupacasath First Nation will designate participants who may fish under the authority of this licence by issuing designation cards to such participants.''

In the communal licence that the band is given it says right there that the band manager et cetera will designate who goes fishing. I think that clearly supports the position the committee has taken to this point.

What is also interesting and refutes, I think, some comments that were made by departmental officials when they were here is that the communal fishing licence makes it quite clear that the individual fishermen are the ones who sell the fish and are under no responsibility to return any of the fish or proceeds from fishing to the band. Again, it is important to note that it says: ``Use of fish: Sale of fish caught by means of gillnet and drag seine under this licence is permitted.'' Under landing slips, it says: ``All salmon caught by a participant under authority of this licence must be inspected by an observer at a landing site and such person shall issue the participant a landing slip, which will specify (a) the landing date, (b) the date and time of landing, (c) the participant's name and designation number, and (d) the number of salmon landed for each species of salmon.''

Again, it refers specifically to the person who is designated by the band and instructs them on what to do.

Under the heading ``sale slips,'' it says: All participants must obtain sale slips when selling any fish caught under the authority of this licence. The sale slips must be issued by an observer or the purchaser shall specify (a) the name of the plant, packer, collector of individual purchasing the fish, (b) the participant's name and address, and (c) the number of this licence and the participant's designation number.''

Again, the band designates who will fish. If that is not a subdelegation, I do not know what it is. The evidence is clear here in this particular licence.

Mr. Bernier: Does a communal licence state how many designations a band council can make, or is it left to the band council?

Mr. Cummins: I have never seen one that does; it is entirely up to the band. As we have been through before, it does not matter which country you are from, whether you are Canadian or Australian, or whether you are native or not, it does not matter.

Mr. Easter: Is part of the problem that usually a licence is issued in the right of the individual? In this case, you are trying to issue a licence in the right of the community, and therefore you basically have to designate that right. Is there a difference? In this case, you are trying to fish in the right of the community with a communal licence. Are there differences in how it can be handled?

Mr. Bernier: Mr. Easter, if I can sidestep the question, the communal fishing licence is not a licence. It is a document that bears the name of ``licence.'' As I said before, no one can fish under a communal fishing licence. No one can actually go out there and catch fish, not until the individual has been issued a real licence, which they call the designation.

The communal fishing licence really stands in the place of any fishing regulation, the Ontario fishing regulations. Yes, you have the Ontario fishing regulation; that includes provisions for the issue of licences by the Ontario minister. However, the fact that the Governor in Counsel has enacted the Ontario fishing regulation does not mean all people living in Ontario can go out and start fishing. You still need to wait and get a licence under those regulations.

It is the same with the so-called communal fishing licence. In a way, I do not think it is necessary to reach your question as to whether a real fishing licence could be issued to someone other than a person, because we do not have to deal with this issue here. There is no licence being issued to an Aboriginal organization.

Senator Tunney: I wish to say at the outset — I am replacing someone here today — that I serve on the Fisheries Committee of the Senate, but we have never dealt with this kind of material before.

Most of my questions have been answered by Mr. Cummins, Mr. Matthews and Mr. Easter.

I wonder why you call it a communal licence while at the same time saying it is not a licence. That is the first part of my question. With respect to the second part, if you issue a communal licence, then that communal has to designate the fishers. If that is done, is there a difference between designating two of a community or 20 of a community, and does that licence dictate the quantity in tonnage, in numbers or in varieties?

Why would you not, if you want to say ``communal licence,'' say a fishing permit to the individuals that the community will designate? I am sure there must be a quota attached to each of what I am calling a permit.

Mr. Bernier: The comment I would make is, of course, Senator Tunney, I am not calling anything anything. I am dealing with the terminology the government chose for its regulations.

In a way, you are getting back to Mr. Easter's question. I guess we will face it. Can a true licence be issued to a community as opposed to an individual?

As I have said before, let us look at the nature of a licence: A licence is a permission to do something that without the licence would be illegal to do.

You then have to ask yourself: Can a community be the subject of a legal prohibition under the Fisheries Act? Can I make a regulation that reads: No Indian band shall fish? Is that a valid prohibition? I do not think so. If we look at their own regulation, who does the prohibition apply to? It applies to persons, to individuals. ``No person shall fish unless they are a designated person.'' That is to whom the legal prohibition applies.

It stands to reason logically then, if you issue a licence, that is, a permission to do the prohibited thing, that it will go to the person who is the subject of the prohibition, that is, a person. That is to whom the prohibition applies, not the Aboriginal organization. There is no prohibition anywhere on Aboriginal organizations fishing. How then can they be issued a licence, and for what purpose?

As I say, I do not think we have to deal with it here, because this is not truly a licence; however, I hope I have answered your question. I think in order to issue a licence to a group one first has to find that that group is the subject of a legal prohibition as a group, not as individual members.

Senator Tunney: I do not think you have answered the other part of my question, which is, does a licence to an individual restrict the amount of fish that individual can take and what varieties he or she can take?

For instance, in the case of a communal licence where there are only four fishers who will be designated, on the one hand, and another community or communal where there are 40 fishers, if there is not a quota or restriction attached to each one of these persons you will get 10 times as much fish from one communal licence as from the other, the one with four fishers and the one with 40 fishers.

Mr. Bernier: To be perfectly honest, senator, I have not read enough of those so-called communal fishing licences to tell you how it is handled in practice. I would expect it is the responsibility of the issuing authority, the Aboriginal organization, which is aware of its overall quota — I assume they must be given an overall quota — to ensure that that is reflected in its designations, or that somehow through reports of landing of the catch we know when the overall quota has been reached and then no further designations are issued.

Mr. Cummins: Can I just respond to the senator's question?

Senator Tunney, as you are no doubt aware, the committee itself now is concerned with the legality of the regulations. Some of the questions you asked are concerned with the effect of the regulations. I understand you are asking about that. If I could, I will just answer to the effect of the regulations. There is no limit on the number of people that a band can designate. In effect, there is no limit on the effort that a band may put towards catching fish, and given that they are catching fish for commercial purposes under these licences, the demand then is inexhaustible for any particular band.

Just to give you the effect then, for example, on the Fraser River area, the government in 1996 introduced a plan to reduce the number of commercial licences operating in the Fraser River. The number went from about 1,500 gillnetters to 400. Under these Aboriginal community fishing licences, the commercial fishing effort in the Fraser River has actually increased because the separate commercial fishery operated by natives in the Fraser River in some aspects is larger than the previous commercial fishery. That is the effect of having no limits on the designation.

Senator Tunney: Was there any kind of a restriction on the First Nations fishing, or is it an absolutely open permit as to volume?

Mr. Cummins: The department would have you understand that, in fact, it was tightly controlled. The reality is different. We just heard in the Fisheries Committee again this past Monday from the department that there were a little better than 79,000 sockeye caught in this Aboriginal commercial fishery last summer. However, we know, for example, that there were six seine boats operating in the Fraser River for almost 30 days. Any three of those boats could have caught and transported the entire 79,000 pieces in one load, in one day and one set. This went on for almost 30 days.

I asked a government departmental person, ``Are you telling us that those six seine boats caught the total 79,000?'' He responded: ``No, they only caught a portion of it. There were other fisheries under these Aboriginal communal licences that caught some of them.''

I know that vessels off-loaded, for example, at French Creek, and any one of them could have had 15,000 to 20,000 pieces, and that happened day after day after day. Therefore, there are no limits to the effort that takes place under these communal licences.

[Translation]

Mr. Farrah: I beg to differ with you. Conditions are attached to the communal licence at the time the licence is issued. Based on what Mr. Cummins said, the error may stem from the fact that the department never bothered to set conditions. However, conditions respecting the licence, timing, quotas and so forth, must be met. However, the licence is issued to the community and the community may designate whomever it chooses and as many people as it wishes to fish on its behalf, provided the licencing conditions are met. In my view, the community is designating people, not delegating any kind of authority. Maybe that is the nuance, in so far as the regulations are concerned. Could you explain to me the difference between designating someone, and delegating authority?

If the community designates people to fish, this does not constitute a delegation of the department's authority because the department's conditions are null and void. In any case, the licencing conditions have been met.

Mr. Bernier: The problem is not the fact that we are dealing with a band council or with an aboriginal organization. Licences are issued, whether or not we refer to this has a designation or something else. The problem is that Parliament, pursuant to section 43(f) of the Act, has assigned to the Governor in Council, that is to Cabinet, the authority, by way of regulations, to plan for and administer the issuance of various fishing licences, with conditions attached where delegation is concerned.

Consider the aboriginal communal fishing licences regulations. The regulations do not specify who is responsible for issuing licences. It merely states that the minister can designate persons who can issue licences. Therein lies the problem.

Authority was transferred from the Governor in Council to the minister. In fact, the minister should have no part in this equation. The actions that are being taken would be legal if the minister was not in the picture and if the Governor in Council, or Cabinet, were left to decide which aboriginal organizations can issue licences.

Senator Hervieux-Payette: We are back to our earlier discussions about the definition of an aboriginal organization. Does that definition apply to individuals, or only to corporations? It was agreed that the minister could not delegate any authority because this brings a third element into the mix, namely how the term ``aboriginal organization`` should be defined. The question is no longer even relevant, because the error occurs earlier in the decision-making process.

If, tomorrow morning, all authority was exercised by the Governor in Council, everything else would go smoothly. There would no longer be a problem in terms of who is authorized to fish on behalf of the aboriginal community. Would you agree?

Mr. Bernier: Yes.

Senator Hervieux-Payette: I have to wonder why we have focused on this question at such length. Mr. Farrah enlightened me when he said that quite often, aboriginal communities exercised their fishing rights by assigning to others the right to fish on their behalf, because they lacked the necessary resources or technical expertise. They benefitted from these types of arrangements. A training program has been launched in Quebec. Once everyone has a boat, everyone will be able to fish. To date, aboriginal organizations are not for the most part incorporated. Therefore, the definition remains a contentious issue.

In the case of an aboriginal organization, when we talk about a band council, tribal council or association, most often, we are not talking about a corporation. Supposing that tomorrow morning, all licences were issued by the Governor in Council and the chain of decision-making authority were followed, would this resolve the whole question of aboriginal organizations and fishing licences to be awarded by the aboriginal community? Whether we like it or not, these are communal rights. To my knowledge, members of the community are property owners. They live in houses on the reserves which were built with money loaned to the aboriginal community. The homes belong to the community, rather than to individual community members. The problem has already been resolved elsewhere with rights being held collectively by the community.

If the minister were to decide to proceed by order in council, I would bring the matter to Cabinet's attention on a regular basis and licences would be issued. The minister still plans to act on this, but he has chosen a different course of action.

Mr. Bernier: I would like to clarify something for you. There was never any question of the Governor in Council issuing all fishing licences. The issue here is whether or not to allow the Governor in Council to make the regulations designating those individuals or aboriginal organizations that may issue licences. To issue a licence, it is not necessary for the designated entity to have corporate status. The Governor in Council can well designate an entity, such as an aboriginal organization, to issue the licence, even though it may not be incorporated.

Another licencing condition applies. As I have stated on more than one occasion, to obtain a licence, one must first be a legal person.

The Joint Chairman (Senator Hervieux-Payette): According to your explanation then, in the case of a band council or tribal council, these are not legal persons, because they do not meet the standard set out in Canadian common law. It is more a case of the law as set down by aboriginal communities. Is that correct?

Mr. Bernier: I am not an expert on native law. Statutory bodies, band councils in particular, possess the attributes of a legal person for these purposes. In other words, to the extent that this is necessary for the exercise of statutory obligations, a band council will be recognized as having a certain legal status, for example. However, a band council certainly is not the same as a corporation or it does not have the status of a corporation.

The Joint Chairman (Senator Hervieux-Payette): I would agree with you that this is true under our system of law. However, I would like to clarify one thing. Clearly, we are dealing with two different legal systems in this case — in fact a third system since we also have civil law here in Canada. Very often, civil law leads to different interpretations than does the common law.

We are dealing here with the legal rights of a group that has the authority to designate people to do certain things on their behalf. If we were to go along with the Governor in Council's intent, which is to issue a licence, would the band council, tribal council or association be allowed to designate persons to exercise rights on their behalf?

Mr. Bernier: Yes, that is the objective.

The Joint Chairman (Senator Hervieux-Payette): They would have a legal document authorizing them to fish, to comply with quota conditions, and so forth.

Mr. Bernier: Consider the following example. I have a communal licence. Had this licence been issued pursuant to Governor in Council regulations l, there would not have been any problem. The Governor in Council would have stated in his regulations — a number of definitions are included in the provision on communal licences:

[English]

``Unless otherwise specified in these regulations, the members of the First Nations are hereby designated to fish under the authority of this licence — `` and so on.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): I feel that I have a better grasp of the situation and that the problem is not as serious as it was first thought to be.

Mr. Bernier: There are no legal problems with the government policy reflected in these regulations, that is with the notion of having aboriginal organizations issue licences. The problem is the approach taken to implementing this government policy.

[English]

Mr. Wappel: Ladies and gentlemen of the committee, I should like to refer you to three short paragraphs in the section entitled ``Communal Fishing Licence Scheme.'' For me, it encapsulates the issue that we have been discussing.

On page 5, it states:

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

On page 8, in the middle of the paragraph, it states:

In other words, the very discretion of the Governor in Council to decide who should be authorized to issue licences has been delegated to the Minister.

Finally, on page 4, the first full paragraph states:

It is the view of the Committee that the Fisheries Act, while it allows the Governor in Council to confer on aboriginal organizations authority to issue fishing licences, does not allow the Governor in Council to delegate to the Minister the power to do so. 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. In making section 4 of the Regulations, the Governor in Council has not exercised that discretion but instead, has sought to delegate his own discretion to the Minister.

That says it all. Nothing that we heard, in my opinion, from any of the witnesses contradicts any of those statements. That is what I was looking for when I was listening to the witnesses, to see if there was anything that would refute the things that I just read. I do not think there is. I am coming at it from that point of view, and I think the three things that I have read are accurate, correct, and, it would appear to me, conclusive that there is subdelegation, and that this should be disallowed.

The Joint Chairman (Mr. Grewal): I think Mr. Wappel summarized very well, but let us hear Mr. Lee.

Mr. Lee: Not to detract from the succinctness of Mr. Wappel's intervention, is it not accurate to say that it is the Governor in Council that has without authorization delegated in this case? Our complaint is not the designations that the minister or the Indian band or any other person does. It is the fact that the Governor in Council purports to delegate something that Parliament never authorized it to delegate. If that is correct, why are we spending all this time talking about the stuff down the pipeline, about fishing boats in the river?

The problem is structural, and right at the top, if I am correct in this. Right at the top, the Governor in Council has delegated to the minister something that Parliament has not authorized it to delegate.

Counsel and the report point out that everything that happened subsequent to that, flowing from that unauthorized delegation, is a subsequent unauthorized subdelegation of a delegation of a delegation.

If I am wrong in that, set me back; but in my view, we should be pointing the finger at the Governor in Council. The regulation by which the Governor in Council has put this whole scheme in process contains an unauthorized delegation of the Governor in Council's powers under the statute. Am I right in that?

Mr. Bernier: That is correct, Mr. Lee.

Mr. Lee: Then what difference does it make who designates what? It is the Governor in Council that has made the error.

Mr. Bernier: Mr. Lee, we have little choice, or the committee has little choice but to deal with whatever arguments are offered by the department and the minister. In this case, however weak and misplaced the arguments may be, a number of them have been made by the minister and his officials, so those are addressed. It is under ``Analysis of Departmental Response.''

The committee position, if you read the first part, is much more succinct, probably more to your liking, because it goes directly and says these are regulations that involve unlawful subdelegation.

Under ``Analysis of Departmental Response,'' we have little choice. We deal with what is given by way of argument. The department has been at pains to show that the communal fishing licence is, in fact, a licence.

The Joint Chairman (Senator Hervieux-Payette): Instead of removing the minister, we should remove the Governor in Council. That is my understanding.

Mr. Lee: If I may just add to that, section 43(f) and the associated subsections say that the Governor in Council can do whatever it wants in setting up a licence scheme. However, counsel is reminding us, and we all have to be aware of it, that while it can do almost whatever it wants in setting up a licence scheme it cannot do an unlawful subdelegation.

Now I will ask this question: Are there words in section 43 of the act that, arguably, could allow the Governor in Council to create what would otherwise be an unlawful subdelegation?

Mr. Bernier: The word that is used there is ``respecting.'' Respecting, as an introduction to an enabling power, confers a fairly wide power. On page 13, the second full paragraph states:

It has to be said that the scope of section 43(f) is broad enough that it would probably support the making of a regulation in which the Governor in Council authorized someone to decide who should issue licences —

That has been done here.

...so long as the delegate was provided with some criteria to guide the exercise of the discretion. This is not the case in the ACFLR. In those Regulations, the Minister's discretion to decide which aboriginal organizations will be authorized to issue licences is unfettered. Hence the subdelegation.

Mr. Lee: I am a lot clearer, thank you.

[Translation]

Mr. Farrah: Two options are possible if the regulations are disregarded: either the regulations could be amended to bring them in line with the legislation and the authority of the Governor in Council, or the legislation could be amended. Do we agree?

Mr. Bernier: At the last meeting, a legal opinion was distributed by Mr. Cummins to committee members. I quite enjoyed having the lawyer view this whole scheme as being akin to trying to fit a square peg into a round hole. We are dealing with legislation that dates back to 1879 and that was drafted based on the conditions prevailing at the time. That was more than a century ago. We are trying to accommodate entirely new legislation with aboriginal rights, communal rights, and so forth. Instead of going back to Parliament and saying ``Look, the legislation needs to be amended so that we can implement these measures,'' we are going back and forth on the issue and trying to fit a square peg into a round hole. And it is not working.

Mr. Farrah: I am asking because clearly, a process is under way to review the legislation and possibly to produce new legislation or amendments to be tabled to the House of Commons. I cannot make any assumptions. In terms of timing, perhaps the committee should explore this option, since we are also discussing possible changes to the regulations.

Since there is a very real possibility that the legislation will be amended shortly, I think we should consider this option.

Mr. Bernier: I should remind members of the Standing Joint Committee for the Scrutiny of Regulations at this time that in 1996, Bill C-62, proposed legislation to amend the Fisheries Act, was tabled. One of the bill's provisions authorized the government to enter into fisheries management agreements.

[English]

That kind of agreement would have suited these cases to a tee. The government, to put this policy in place, could certainly have used that vehicle.

The Joint Chairman (Senator Hervieux-Payette): Who would have done that, the Governor in Council or the minister?

[Translation]

Mr. Farrah: That particular provision was on page 10 of the bill, which ultimately was not adopted. Clause 16 stipulated that in the course of exercising the powers and carrying out duties pursuant to section 14, the minister may enter into agreements with any statutory body or private individual. Certain provisions in that bill would address some of the committee's concerns, given the circumstances in which a review has been initiated and which will likely result in new draft legislation.

The bill brings the minister back into the picture. Earlier, you said that the minister was the odd man out in this equation.

Mr. Bernier: I have nothing against the minister personally.

Mr. Farrah: I am talking from a legal perspective. In terms of delegation, pursuant to clause 7, the minister could issue a licence for the management and regulation of the fishery and for fishery conservation. Consequently, some of the provisions of this bill, which was not adopted, could prove very interesting to the committee. Certainly they would address some of your concerns.

The Joint Chairman (Senator Hervieux-Payette): Under different circumstances, who would issue licences? It seems to me that in most cases, licences are issued by ministers, not by the Governor in Council.

Mr. Bernier: In most instances, the minister in fact issues the licences. That would also be true in this case.

[English]

The Joint Chairman (Mr. Grewal): The time is 10:45. Since we are dealing with unlawful subdelegation, my sense is that the discussion is leaning towards disallowance; is that correct? Should we direct counsel to prepare a disallowance report on this?

The Joint Chairman (Senator Hervieux-Payette): You said at the beginning that we will deal with each section and decide. For this section, we say ``yes.''

The Joint Chairman (Mr. Grewal): I am talking about this particular section.

Let us move on to the next one, which is ``Resolution of Conflicts between Licences and Regulations.''

Mr. White: Do we need any type of motion to deal with that?

The Joint Chairman (Mr. Grewal): Let us work with consensus rather than motions today. We have accomplished something and let us move on.

Counsel, could you brief us in regard to the resolution of conflicts between licence and regulations, please?

Mr. Easter: We suggested that we move with disallowance on that section. Are you including in that the benefits of the proposal Mr. Farrah put forward, that there are other ways of doing this and that should be suggested?

The Joint Chairman (Mr. Grewal): We studied that. In my opinion, we spent quite a bit of time on that discussion. The idea is good, but how do we resolve it?

Mr. Bernier: If I understand what you are asking, we could certainly add in the draft report that will be submitted to the committee a suggestion that something along of the lines of what was in Bill C-62 would have avoided that and allowed this scheme to be implemented.

The Joint Chairman (Mr. Grewal): That is not a bad idea.

[Translation]

Mr. Farrah: All we would need to do is provide for a possible legislative amendment.

[English]

Mr. Cummins: I recognize that it may have been possible there, but I am not sure that what is possible is always practicable, practical and workable. That is probably one reason why government decided not to proceed with Bill C- 62, after almost six years of being off the table. That is also why I have trouble with the section that was just read that section 43(f) is broad enough.

It may very well be that that section is broad enough. However, I am concerned that if we continue making those sorts of suggestions, the committee may be perceived as having given pre-approval to some scheme. I am not sure that is good.

As well, with reference to Bill C-62, the notion that was contained in Bill C-62 that would have allowed for these licences is fraught with danger. I honestly believe the department recognized that.

Mr. Easter can confirm that one of the issues that have come up repeatedly in our hearings in the Fisheries Committee is the erosion of the minister's authority and his ability to manage the fishery and to manage his constitutional obligation. Government must be very cautious of that. The committee should be aware of that possibility, that the minister's authority could be eroded just to allow something to go forward. Perhaps that is not the best thing for a committee to suggest.

The Joint Chairman (Senator Hervieux-Payette): Mr. Cummins, just to remind you, the role of our group here is that we examine the conformity of regulations with legislation and legislation in terms of substance. The policy side will be discussed in the House when you study the amendments of the bill. We know the intention and the policy, that is quite clear, but it was not done properly.

The only thing we can do is to say to the minister that to do legally what is desired you must either modify your regulations or change your law.

The argument that you are making, that there might be some changes and so on, should be done when the Fisheries Act is re-examined. I am sure your leader will gladly suggest to our leader to do that quickly.

Mr. Cummins: You have misinterpreted what I said. What I said is exactly what you said, with the exclusion of your final comments. My point is that the issue before the committee is the regulations that the government has put in place. The committee's purpose then is to rule on them.

What we are doing at the bottom of page 13, and what the minister's secretary has suggested, is that the committee is looking and trying to advise the government on how it may achieve its end.

There are two problems with that. First, we may be interpreted as giving consent beforehand to a particular scheme; and second, we may, unintentionally, be advising the government to erode the constitutional responsibility and obligation of the minister. I do not think the committee wishes to do that.

The committee should simply deal with the issue before it. The government will obviously know that something is possible under section 43. When they come before us, we can rule on that, but I do not think it appropriate for us to suggest that beforehand.

The Joint Chairman (Senator Hervieux-Payette): In other instances, in other legislation dealing with other regulations, this committee has often recommended a remedy to the problem. We just appeared before the Justice Committee on a totally different matter and we suggested some new measures that would remedy the problem they have. We suggested some articles in the legislation that would solve the problem.

I think you have to trust the judgment of this committee first to establish the validity of the regulation and, at the same time, to find a way of correcting it. You may have a different view on how to do it, but I think it is up to the committee to decide. We agree that it is not done right and that we should correct it. You say we should go one way; other people suggest another way. It is up to the committee to decide which way to take.

The Joint Chairman (Mr. Grewal): In my opinion, we have spent enough time on this. Let us have the general counsel give a brief comment on this. In my opinion, counsel needs more time to prepare a disallowance report, but I will urge that we have the disallowance report before us at the next meeting so we can deal with it and move on.

Mr. Bernier: I understand what Mr. Cummins is saying. As the chairman has indicated, when the committee objects, policy does not come into consideration. When the committee suggests alternative means of doing something, policy also is not taken into consideration. People aware of the mandate of this committee would know that the fact the committee suggests that if it were done in this way or that way, it could be done lawfully, does not imply a pre-approval of policy. It is no more concerned with policy there than when the committee objects.

I might add that it would seem rather extraordinary that a committee of Parliament would not mention the fact that of course Parliament, being sovereign and supreme in the legislative area, can do what it wishes, subject to the Constitution.

The Joint Chairman (Senator Hervieux-Payette): We will have the chance to see if you agree, Mr. Cummins, on the draft report. At that time, you can comment, and we will see if we agree or disagree.

Mr. Bernhardt, do you have a summary on section 4?

Mr. Bernhardt: With the caveat, of course, that if section 4 of the regulations falls, there is not an awful lot left to be applied, we can then turn to section 6, which provides that in the event of an inconsistency between the conditions of a licence granted by the minister and any regulation made by the Governor in Council the licence conditions will prevail.

Of course, the licence conditions will be established by the minister on a case-by-case basis in the exercise of the administrative power given to the minister by the regulations. The regulations are, of course, legislation.

One way to look at this is that section 6 purports to give the minister the power to, in effect, amend existing regulations on a case-by-case basis, through what the minister puts in each particular licence.

It has been the view of the committee that, absent an express and very clear power, the Governor in Council has no authority to grant the minister this sort of discretion. The department's view is that this does not amount to a de facto amending of regulations. It is simply a provision whereby the Governor in Council has decided which of two competing regulatory regimes will take precedence.

Certainly, if you had two regulations, the Governor in Council would be perfectly free to say which regulation was paramount in the event of a conflict. This is not what we have here. We do not have a conflict between two regulations; we have a conflict between a regulation and a licence condition. I think it is a bit misleading to simply characterize this as dealing with conflicts between regulatory regimes.

The bottom line is that section 6 grants the minister the power to override a regulation. Absent clear authority for the granting of such a power, that must be seen to be unlawful.

Mr. Lee: I have had the benefit of looking at this more closely in my leisure time outside of this committee. I think this is a fairly clear issue. This one does not suffer from lack of clarity. I think we should be fairly firm.

Can I just confirm that the previous bill that had been introduced in the House had a provision dealing with this? Can we clarify whether the bill that had been introduced into the House a few years ago had a provision that would have authorized the licence to prevail over a regulation?

The Joint Chairman (Senator Hervieux-Payette): The 1996 bill, when they were trying to modify it?

Mr. Lee: It was section 7 of Bill C-62.

I cannot assist the record now, but I had been advised that that was the intent, or there was a provision in that bill. In any event, I think we should hang tough on the issue. We need a statutory amendment. If it is the view of the department that the licences have to override regulations from time to time, obviously for good reasons that come up from time to time, where you have two competing schemes out on the street, or out on the bay — if it is the view of the government that our law should provide that where there is a conflict and where it is in the public interest to make the licence scheme prevail over a previously existing regulatory scheme then it should be provided for in statute.

If there is to be a solution to it, it has to come from statute.

The Joint Chairman (Senator Hervieux-Payette): You are recommending to disallow this section, if I interpret your comments correctly.

Mr. Lee: This is one on which I would like to hear from the government whether they are prepared to amend the act or whether they are prepared to put forward an amendment.

Mr. White: Why would that make any difference as to whether you would propose disallowance or not? Logically, you would either disallow it or not.

Mr. Lee: The modus operandi of this committee, ever since I have been here, has been to accept an undertaking from the government to amend a statute and not to go to disallowance where an amendment is undertaken.

Mr. White: I have absolutely no dispute, Mr. Lee, but we have given the government years to give that commitment to us.

Mr. Lee: In this particular case, Mr. White, it is my clear recollection that this committee, by taking the approach it did some months ago in asking for a draft disallowance report, deviated from the normal procedure it had followed for many years. Perhaps we did not have a scenario that enabled the minister and the government to come forward with any kind of undertaking. The committee's approach at that point pre-empted the normal process, and that deviation has put us where we are today, where even Mr. Cummins or someone referred to us as ``backtracking.'' The only reason we may be perceived as ``backtracking'' is that we deviated from our normal procedure, and now we are looking at this in a fairly business-like fashion, as we should.

I am not suggesting we change our view on these things. I think I have heard in the corridors, if I may put it that way, kneecapping people in the corridors, that that is an approach the government is looking at.

The Joint Chairman (Senator Hervieux-Payette): Would you put that in an ordinary report like section 2?

Mr. Lee: I am not so sure. I do not want to shuffle it off to never-never land either. Let us just say I am ambivalent as to which category I view it as being in.

Mr. Bernier: Could I perhaps help, Mr. Lee? Mr. Easter may confirm. I believe he asked that very question twice of the witnesses at the two meetings, as to whether they were prepared to move on this particular section. The answer was no in both cases. The request has been made.

Mr. Lee: I am interested in having answers from the government, not the department.

Mr. Easter: Yes, that question was put and certainly the department official seemed reluctant to go that way. However, in speaking with the minister, the issue is being rethought. It is quite well known that the performance of the officials before this committee was less than sterling. I think that has been recognized by the minister. If we were to ask him, there would be a willingness to deal with the issue in a proper fashion that meets the responsibilities.

Mr. Bernier: As my colleague points out to Mr. Lee, we have this document received yesterday from the department. Their position is that the provision is fine. That is on page 6.

As of the receipt of this document yesterday mid-morning, there appears to be no change in the wind.

The Joint Chairman (Mr. Grewal): Which section?

Mr. Bernier: That is on page 6 of the document under ``ACFLR provided licence conditions prevail.'' The GIC validly enacted a regulation that by operation of law licence conditions prevail.

Mr. Lee: Mr. Chairman or Madam Chairman, the parliamentary secretary and the minister were here. I cannot do better than that. If there is nothing for the parliamentary secretary to do to address the issue, I will leave it there.

[Translation]

Mr. Farrah: Regarding the substance of the matter, we need to compromise. On the one hand, everyone agrees that the regulations are deficient and that the situation somehow needs to be resolved. We can either amend the regulations, or amend the legislation. I think it is entirely legitimate for us to present these two options in the report. I cannot speak for the department, but I understand that the political will exists to strike a balance between the regulations and the legislation and to come to some kind of agreement. I feel these options should be explained in the report at this time because everyone knows the a legislative review has been under way for some time now and that the process is coming to an end. The time is right since the review will likely result in amendments to the act. Under the circumstances, the logical thing to do would be to spell out both options in the report.

[English]

Mr. Wappel: Madam Chair, I will speak briefly to summarize how I think we should proceed. Counsel has said that, in the absence of clear legislative authority, it is unlawful for a licence to supersede a regulation. That is what we should find. Section 6 does precisely that and, therefore, should be disallowed. The obvious solution is to provide in statute, if that is what the ministry, minister and the Governor in Council wishes, that under certain circumstances a licence will prevail over a regulation.

Let us get on with the next section.

The Joint Chairman (Mr. Grewal): Mr. Wappel mentioned precisely what I wanted to say. In my opinion, we should move on for disallowance because it is again a situation of unlawfulness. However, we should also incorporate that which Mr. Farrah said. We should include a paragraph amending the act. We should instruct the counsel to prepare the disallowance report along with the previous one for the next meeting.

The Joint Chairman (Senator Hervieux-Payette): Is there a consensus?

Hon. Members: Yes.

The Joint Chairman (Senator Hervieux-Payette): Good. Let us move to item 5.

First, I remind you that there is another committee meeting here at noon. If you want to continue at that time, we will need to move to another building. There is a room available, but not this room. Second, there will be no food. People can make up their mind before noon.

The Joint Chairman (Mr. Grewal): We can speak less and conclude sooner.

The Joint Chairman (Senator Hervieux-Payette): Let us go to section 5 and ask counsel to give an overview.

Mr. Bernhardt: The section here, Madam Chair, is section 7 of the regulations, which provides that no person fishing under the authority of a licence can contravene or fail to comply with any condition of that licence. The purpose of this provision becomes clear when one looks at section 78 of the act, which is the offence provision, that makes it an offence to contravene the act or the regulations.

The licence is neither an act nor a regulation. On its face, section 78 does not apply to conditions of a licence. However, by putting section 7 in the regulations, the effect is making contravention of the licence punishable as an offence under the act.

Again, there is nothing in the act that authorizes regulations having the effect of creating offences. The committee has taken the view already in another report that this approach is illegal. The note refers to report number 66, which deals with similar provisions in the Ontario fishery regulations.

Again, the only purpose of section 7 is to do indirectly what could not be done directly. The department has rejected the committee's position both in its response to the earlier report and in relation to these regulations. Since the committee's last report, the department has come to rely on the Barnett case. The note goes on for several pages analyzing that case, concluding that there are some serious doubts as to its value as a precedent.

The department's position essentially is that section 7 does not create an offence, that it merely establishes a standard conduct that must be complied with. This contention was dealt with in the committee's earlier report; I believe the word the committee used to describe it was ``disingenuous.''

If it were not for section 7 of the regulations, you could not be punished for contravening the regulations of a licence. No matter how one seeks to characterize it, that is the bottom line.

Mr. Lee: I have a fair bit of time on this issue during the last meeting. I am pretty convinced by my own rhetoric.

I also understand the department's position here when they say that all this really does is create a standard in the regulations so everyone knows that thou shalt not fail to live up to a regulation. If in tandem with that statement the department were to say that they have never charged anyone under this section, nor do they intend to charge anyone — they might further say that they have a standing policy in the departmental manual that says not to charge people under section 7 of the regulations — I might find that acceptable. Just the mere passage of this section 7 of the regulations does not on its face offend any particular principle of regulation making. It does say that where we make a regulation or put a condition on a licence it should be followed.

Does anyone know whether the department has ever prosecuted someone for breaching this section 7 of the regulations? I do not think we have ever ascertained that. I wanted that on the record because if this is just standard in the regulations then that is all it is. However, if I sensed the slightest whiff that departmental officials ever contemplated prosecuting someone under this section I would go to war.

I am prepared to go to war now because I am very clear in my view that the regulation does create a paradigm — a structure — under which a person could be charged. I have no doubt the person would not be convicted, if they had a good lawyer; and I would put money on it, precisely for the reasons we are dealing with today, that it is unconstitutional. However, I did want the record to show that other view of this, the perhaps arguably, naive view of the department that it is just a standard that they have set out in the regulations.

The Joint Chairman (Senator Hervieux-Payette): Mr. Grewal has to leave in a few minutes.

The Joint Chairman (Mr. Grewal): This section is very clear. I will not go to war, but I will recommend disallowance of this issue.

Mr. Lee: Could I ask counsel to communicate with the department to inquire about any record of any prosecution ever taking place?

Mr. Cummins: I have a note that may respond in part to that. It is dated March 7, 1996. A Yukon River commercial fisherman and member of the Dawson First Nation has pleaded guilty to two counts of selling fish caught under an Aboriginal communal fishing licence in Dawson City Provincial Court. He was fined a total of $1,000 — $500 on each count — in the Provincial Court. They also suspended his commercial licence from September 1 to 30, 1996.

That is one example.

The Joint Chairman (Senator Hervieux-Payette): That perhaps reinforces our case, if they say we have never used it. It is not a bad thing to know.

Do we have consensus that this will be part of the disallowance report?

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Section 6.

Mr. Bernier: This relates to token close times, Madam Chairman, and there is not really much to add. Clearly, there is a significant failure here on the part of the department's legal advisers to appreciate the difference that is made in law between an exercise of any statutory power in good faith and an exercise of power in bad faith.

Departmental officials recognize in the document distributed this morning that there will never be a case where a three-day close time, what we have called a ``token close time,'' will not be varied. Clearly, prohibiting fishing for three days prior to New Year's Day is a fiction. The purpose for which that fiction is enacted is to permit the doing indirectly of what cannot be done directly. That is the principle. It is an important principle of administrative law that finds no echo in that department or its legal services. I find that astounding.

The Governor in Council was not given the authority to delegate the authority to establish close times. He must do so himself. That was the intent of Parliament in 1869. However, the Governor in Council was given the authority to authorize fishery officers and other officials to vary a close time he had established in good faith. Here, those token close times are not established for the purpose of protecting a particular fishery. The sole purpose of prescribing a three-day token close time is so that someone else can come around under the guise of varying the close time but actually establishing a real meaningful close time. That is the problem and it has not been addressed. The committee should pursue this objection in the way that it considers suitable.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): Counsel has explained the situation to us clearly. The problem is poor regulations, not people acting in good faith or in or bad faith.

Mr. Bernier: You mean from a legal standpoint.

The Joint Chairman (Senator Hervieux-Payette): It is possible to draw all kinds of conclusions, if we consider people's intentions. Reasons can vary from incompetence to lack of knowledge. The fact remains that we are dealing here mainly with operational considerations.

[English]

Mr. Lee: I am under the impression that, in the federal regulations, there are other similar artificial devices. We have brought it to the attention of departments. Some of them have rectified and some have not. This is not necessarily a back-breaker. We have never disallowed one before. We have had a continuing disagreement, if I can put it that way, with some departments.

There is no need for us, in my view, to ratchet this up unless colleagues feel strongly about it. I think we should go with the flow on this one and maintain our strong objection to the artificial device to do indirectly what they cannot do directly.

Mr. Bernier: Seek to educate — perhaps add it to the scope of regulations that would then be a report on these two points, a companion report of related activities and the token close times.

The Joint Chairman (Senator Hervieux-Payette): We agree that there are two levels of discussion. One level is flawed, at least the purpose of it is flawed, and so we will take the other remedy.

That was the last section. Were the instructions of the committee clear enough, Mr. Bernier?

Mr. Bernier: Yes. As we proceed, we keep receiving various documents from the department; we have to continue to amend the draft report. With the permission of the committee, we will seek to have a disallowance report before the committee on May 30, which gives us three weeks to polish things up. Perhaps, if the committee agrees, we will review the other two items, which will be a regular report, at the following meeting. There is less importance as to when that report is adopted, as long as it is adopted before the end of the session. Would that be acceptable?

The Joint Chairman (Senator Hervieux-Payette): Yes, and we should fulfil our duty with other regulations. It would therefore be practical, if you agree, Mr. Cummins, that disallowance will be the first issue at the next meeting? The balance will be dealt with in the other committees.

Mr. Bernier: June 13 is the date for the general report.

The Joint Chairman (Senator Hervieux-Payette): We will deal with the other one then, and at the same time, we will fulfil our mandate to review all the legislation.

Mr. Cummins: On May 30, which issues will you deal with?

Mr. Bernier: The proposed disallowance report.

Mr. Cummins: And what about June 13?

Mr. Bernier: The related activities and token close times, which would be in the regular report, not the disallowance report.

[Translation]

SOR/92-738 — RAILWAY INTERSWITCHING REGULATIONS, AMENDMENT

The Joint Chairman (Senator Hervieux-Payette): The next item is SOR/92-738.

[English]

Mr. Wappel: Committee members will remember that we have been dealing with the Minister of Transport for quite some time. We have been put off and ignored, and members who have been on the committee will know that this committee does not like to be ignored. We have not received any answers. We have asked the minister to appear, but he has not. The answers have not been forthcoming, although the Clerk of the Senate side sent around a comprehensive document advising of the procedure for summoning a witness. Accordingly, I will present now to the committee a certificate, which I have signed, indicating that, in my opinion, the evidence to be obtained from Louis Ranger of the Department of Transport is material and important in the investigation respecting the appropriate regulation that we are talking about.

Madam Chair, therefore, I move:

That Louis Ranger, of the Department of Transport, be summoned to appear and testify before the Standing Joint Committee for the Scrutiny of Regulations on Thursday, May 30, 2002, at 8:30 a.m., in Committee Room 160-S, Centre Block, Ottawa, and that the Joint Chairs be authorized to follow such procedures as may be necessary to communicate this order.

The Joint Chairman (Senator Hervieux-Payette): Maybe we can have a word from the Clerk as to what it means in terms of procedure to summon a deputy minister to appear before this committee. This is not a usual procedure, but, considering the facts, it is important.

Mr. Cummins: I just have a question. On May 30, we have agreed to do the disallowance. Will there be some difficulty in timing on this matter?

The Joint Chairman (Senator Hervieux-Payette): I do not suppose that Mr. Ranger will speak for two hours. He has to give us an answer. It is not something that is comprehensive. It is almost ``yes'' or ``no.'' It should be short. That is why we asked him to appear first, because then we can take our time with the rest of the disallowance report.

They have not answered us. We have asked it repeatedly by letter. We have asked the minister. The answer does not come. We asked the deputy minister. He will have to tell us why he does not give us the answer.

It cannot take hours. He has to explain to us why we are not getting the answer on that piece of regulation that is illegal, which they do not want to change.

Mr. Cummins: I am concerned that we do not run out of time on the disallowance.

The Joint Chairman (Senator Hervieux-Payette): It is one item and one topic. I wish him luck.

The Clerk will tell you what it means.

Mr. Till Heyde, Joint Clerk of the Committee: There has been distributed to you a short two-page document in both languages that I prepared to summarize the committee's powers to summon witnesses, as well as an article on this topic. As you will note, the steps that are usually followed are to invite a witness to appear voluntarily, to file a certificate — which Mr. Wappel has just done — and then for a committee member to move a motion to summon and the committee to adopt if it so wishes. After that, a summons is served on the witness, generally by a process server, which I would envision being done in this case. Once summoned, the witness is required to appear before the committee at the date specified.

As I note in the document, just so members are fully informed of all the facts, there has been a divergence from the usual practice in this case inasmuch as the individual whom it is proposed to summon has not been specifically offered the chance to appear voluntarily. There is a lot of background with the committee on this issue, and I believe members are aware of it. Counsel can speak to the adequacy of the response that has been received so that members are entirely aware of where things fit. If you have any questions, I can answer them for you.

Mr. Wappel: Our clerk is quite correct. We have not invited this particular gentleman. A memo was circulated by counsel that, in my view, certainly convinces me that the questions are simple; they have just been ignored. If the gentleman comes here at 8:30 in the morning and gives us an answer in five minutes, he can leave, and that is the end of the issue. I suspect that, with a summons being served upon him, we may very well get the answers in writing prior to the appearance.

Anyway, that remains to be seen. In this case, in view of the long history with the minister, we have bypassed the usual initial invitation to attend and have gone right to the summons. I would urge the committee to proceed in that way.

Mr. Bernier: The only comment I might make is that I am surprised that the clerk has chosen not to rely, as authority for powers of a parliamentary committee, on the work of Mr. Lee, as opposed to Ms Davidson.

The Joint Clerk (Mr. Heyde): It is a long and exhaustive book, and I did not want to risk violating any copyright by copying it.

Unfortunately, Mr. Lee, we do not have the budget to buy the book.

The Joint Chairman (Senator Hervieux-Payette): Can we have access to a free copy of your book, Mr. Lee?

Mr. Lee: I want to thank everyone who has contributed financially to the foundation that allowed this book to be produced and published. Thanks to their support, I am now able to make copies available to needy individuals.

The Joint Chairman (Senator Hervieux-Payette): We will certainly campaign for the committee to buy one in its budget.

I presume that the committee agreed to go that route and that it is appropriate at this point in time.

The committee adjourned.

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