The Standing Joint Committee for the Scrutiny of Regulations has the honour to present its

SIXTH  REPORT

(Report No. 71)

          Pursuant to its permanent reference, section 19 of the Statutory Instruments Act, the Joint Committee draws the attention of the Houses to the Aboriginal Communal Fishing Licences Regulations, SOR/93-332, as amended by SOR/95-106. For the reasons explained in this Report, your Committee considers that the making of section 4 of these Regulations involves an unlawful subdelegation of the authority given to the Governor in Council by section 43 of the Fisheries Act and that sections 6 and 7 of the Regulations are ultra vires  the Fisheries Act.  The text of the regulatory provisions in question is reproduced in Appendix A to this Report. 

         Le Comité mixte permanent d’examen de la réglementation a l’honneur de présenter son

SIXIÈME  rapport

(Rapport n^o 71)

         Conformément à son ordre de renvoi permanent,  l’article 19 de la Loi sur les textes réglementaires, le Comité mixte attire l’attention des Chambres sur le Règlement sur les permis de pêche communautaires des Autochtones, DORS/93-332, tel que modifié par le DORS/95-106. Pour les raisons expliquées dans le présent rapport, le Comité est d’avis que l’article 4 de ce Règlement effectue une sous-délégation illégale de l’autorité conférée au gouverneur en conseil à l’article 43 de la  Loi sur les pêches et que les articles 6 et 7 du Règlement sont ultra vires la Loi. Le texte des dispositions pertinentes du Règlement est reproduit à l’appendice A du présent rapport. 

Introductory comments

            The Committee’s concerns with the legality of the regulatory provisions that are dealt with in this Report were first conveyed to the Department of Fisheries and Oceans by letter dated December 9, 1997. In reply, the Department dealt at great length with the policy merits of the Aboriginal Communal Fishing Licences Regulations (“the ACFLR” or “the Regulations”) and reviewed in detail the considerations that led the government to adopt this regulatory scheme. Interesting though these aspects may be, it must be clear that the merits of the Regulations or the government policy they implement for the management of the Canadian or aboriginal fisheries are not matters which lie within the mandate of the Joint Committee.

            The need for flexibility in the management of the fisheries has repeatedly been invoked in relation to the ACFLR. While the Committee has no doubt that these Regulations provide a degree of flexibility thought desirable, this is of no direct relevance to the issue of their legality. Trite though this may seem, the legality of a regulation is not determined by how well that regulation serves the policy needs of the government. When evaluating the legality of the ACFLR, the issue is not whether they provide the Minister with the required degree of flexibility; it is whether Parliament authorized the means that have been chosen to give the Minister that flexibility.

            Departmental officials have been at pains to emphasize that the Fisheries Act confers broad powers on the Governor in Council in relation to Canadian fisheries, and in this connection, have often referred your Committee to the comments of the Ontario Court of Appeal in Re Peralta and the Queen in right of Ontario at al. 1 Of course, your Committee has never doubted that the regulation-making powers conferred by the Fisheries Act are fairly broad in scope and the Peralta decision does not add to that understanding. At the same time, your Committee remains mindful of the fact that no grant of power is without limits. These limits flow both from the language of delegation and from general principles of law.

            The Department has also emphasized that the ACFLR are intended to give effect to certain court decisions on the fishing rights of aboriginals, more particularly the decision of the Supreme Court of Canada in R. v. Sparrow. 2  While your Committee does not dispute that court decisions should be given effect in the management of the Canadian fisheries, it does not follow that the Fisheries Act necessarily provides the means to implement these decisions. The Fisheries Act is to be read and applied as any other Act. In some instances, the Act will grant powers that are sufficient to give effect to court decisions. In other cases, however, the Act may not, and the government will be required to seek appropriate legislative amendments from Parliament in order to give effect to the decisions of the courts.

In this connection, it needs to be said that the Aboriginal Communal Fishing Licences Regulations are not exclusively concerned with aboriginal or treaty fishing rights that have been recognized by the courts. The Regulations also seek to regulate commercial fishing activities that do not involve the exercise of any constitutionally protected “communal” right. Where a group has no constitutional right to engage in a commercial fishery, there can exist no “communal” right in need of recognition. This only serves to confirm that the validity of the regulatory scheme set out in the ACFLR is to be assessed in terms of the authorities granted by Parliament in the Fisheries Act and that the various court decisions relating to aboriginal rights are of no immediate relevance to that assessment. 

            The issues raised by the Joint Committee have been the subject of a lengthy exchange of correspondence with the Department of Fisheries and Oceans. In addition, the Joint Committee provided an early version of this report to the Department prior to the appearance of the Minister and his officials to assist them in preparing their testimony. Finally, on instructions from the Joint Chairmen, our General Counsel also held a meeting with departmental officials to verify that the objections and comments of the Joint Committee had been understood. The Minister of Fisheries and Oceans appeared before the Committee with his officials on April 11, 2002, and the Committee received further evidence from departmental officials on April 25, 2002.

The Department has failed to provide a sound cogent legal rationale in support of the validity of the Regulations. The responses received from the Department have often been characterized by improvisation and irrelevance. In addition, the testimony that has been offered to your Committee disclosed some significant gaps in the understanding which departmental officials have of the objections of the Committee and of the operation of the Fisheries Act. For example, at one point, the Senior General Counsel to that Department offered the surprising view that section 43(f) of the Act 3 does not allow the Governor in Council to provide for the issue of licences and that the issuing of licences is an exclusive function of the Minister of Fisheries and Oceans acting under section 7 of the Act. These remarks, of course, evinced a serious lack of comprehension of the statute and they were subsequently withdrawn by the Senior General Counsel.

The same adviser also asserted that the Fisheries Act applies not only to persons, but also to non-corporate entities such as aboriginal organizations. A later departmental submission added that:

The Criminal Code definition of “person” applies to the Fisheries Act by virtue of section 34 of the Interpretation Act.

Section 34 of the Interpretation Act states that the provisions of the Criminal Code relating to indictable offences and to summary conviction offences apply to offences created by an enactment. The purpose of section 34 is to referentially incorporate the provisions of the Criminal Code governing the prosecution of indictable and summary conviction offences into those federal statutes that create offences, thus avoiding the need for Parliament to refer to the Criminal Code in every one of those statutes. The application of any federal enactment is defined by that enactment and it is not the purpose of section 34 of the Interpretation Act to alter other federal statutes so as to make them applicable to persons or entities to which they do not apply on their own terms.  This is also the case for any offence created in a federal enactment and such an offence will apply to those persons or entities to which  it is made applicable by the statute that creates the offence.

The offence provisions of the Fisheries Act are expressly directed to “persons” and apply only to natural persons and corporations. The argument made by the Department’s senior legal adviser that the word “person”, as defined in the Criminal Code, is imported into the Fisheries Act by section 34 of the Interpretation Act overlooks the decision of the Supreme Court of Canada in Regina v. Eldorado Nuclear Limited, 4 in which the Court expressly rejected that very argument. In addition, your Committee would refer to The Queen v. Township of Richmond,5 where the British Columbia Court of Appeal, in deciding that a municipal corporation could be charged under the Fisheries Act, did so on the basis of the definition of “person” found in section 35 of the Interpretation Act 6 and did not even mention section 34 of that Act.

On this same point, the Department referred your Committee to a decision of the Northwest Territories Territorial Court said to support the view put forward by the Senior General Counsel:

 …in R v. Beaulieu 7 an Indian band was prosecuted under the Fisheries Act. At trial the Indian Band unsuccessfully argued that it could not be charged. The conviction of the Indian Band was successfully appealed, but on other grounds. 

That is a correct summary of the disposition of the case. However, it conveniently omits to mention Justice Vertes’ very important obiter remarks on appeal:

There is finally one further significant and questionable point with respect to the Band (one which thankfully I need not decide). The agreed statement of facts said simply that this appellant was an Indian Band. […] The Act, however, is silent on the legal capacity of a band. For this reason, Canadian case law is highly ambivalent on the question of the legal status of a band. They are not bodies corporate and there is nothing in the statute referring to it as a legal entity. Yet it is a creature of statute and Parliament can be presumed to have intended that a band should have duties and liabilities in respect of those powers that it may exercise by virtue of the statute. The emphasis, however, is on the powers exercised by virtue of the statute. Just because a ‘band’ is one thing in some contexts does not mean it is necessarily the same thing in all contexts. In civil disputes, especially ones involving contracts entered into by a band, most courts have held the band to be a body capable of suing and being sued. But no case that I am aware of has held that a band generally has a legal status (equivalent to that of a person or a body corporate) for purposes of prosecution in a criminal or quasi-criminal case. I raise this point because no one at the trial seemed to have considered the question of whether the Band is an entity that can be prosecuted. It was not also raised in the written briefs filed by the parties on this appeal but it was the subject of some discussion at the hearing. As I said, I do not have to answer this question but it is one worthy of further consideration should the authorities ever contemplate laying criminal or quasi-criminal charges in the future against a band. (emphasis supplied)

Your Committee does note in passing that the Department’s statement that: “At trial the Indian Band unsuccessfully argued that it could not be charged” is contradicted by Mr. Justice Vertes’ statement that: “no one at the trial seemed to have considered the question of whether the Band is an entity that can be prosecuted.” 

            Unless they provide otherwise, expressly or by necessary intendment, Acts of Parliament apply to natural persons who are Her Majesty’s subjects. In most cases, Acts will also apply to corporate entities that have a recognized legal personality based on the definition of the word “person” in section 35 of the Interpretation Act.  The Fisheries Act, in common with most statutes, applies to persons. The activities it regulates are activities that are engaged in by persons and its offence provisions are expressly directed to persons. The Act expressly includes corporations but does not include non-corporate bodies or entities. 9

            Over the course of the Joint Committee’s examination of the ACFLR, departmental officials have often referred your Committee to case law that turned out to have been misread or misused.  A further example of this is afforded by the decision of the British Columbia Court of Appeal in R. v. Huovinen.10 In his testimony before the Committee, the Senior General Counsel for the Department of Fisheries and Oceans asserted that:

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 was upheld by the Court of Appeal.

The statement that the British Columbia Court of Appeal upheld the Aboriginal Communal Fishing Licences Regulations in the Huovinen decision is demonstrably wrong. The issue in Huovinen had to do with the scope of the ACFLR, namely, whether commercial fishing may be authorized under those Regulations. The appellants in Huovinen were challenging the authority of the Minister to issue a communal fishing licence authorizing commercial fishing in the absence of any constitutionally recognized right to do so.  The question of the validity of the Regulations was not before the Court. There is a simple enough distinction between the validity of a licence and the validity of the regulations under which that licence is issued. In Huovinen, the Court was required to decide the issue before it on the basis of the presumption that the Regulations were validly enacted and this is exactly what the Court did. It reviewed the Fisheries Act and the ACFLR with a view to determining whether the Regulations allow the Minister to authorize commercial fishing by means of a “communal fishing licence”. Not surprisingly, the Court found they did.

            As the British Columbia Court of Appeal itself noted:

The appellants do not suggest the Governor in Council does not have the power to make regulations including the ACFLR. Their submission is that the ACFLR does not give the Minister the right to issue a licence under it that authorizes the sale of fish. (emphasis added)

Officials of the Department of Fisheries and Oceans are reading far more into that decision than is warranted. The decision stands solely for the legal proposition that, as currently drafted and assuming they are valid, the Regulations allow the Minister to authorize commercial fishing by natives even in the absence of any constitutional right.

            Before turning to its specific objections to the Aboriginal Communal Fishing Licences Regulations, the Committee emphasizes again that its interest lies solely in determining whether the means chosen to implement a particular government policy are lawful. In the case of the ACFLR, the Committee is of the view that the means used are not authorized by the Fisheries Act. It is also our view, as explained below, that the Act does in fact provide means of implementing the policy of the government. In other words, there is no legal impediment to the fulfilment of the objectives of the government with regards to the aboriginal fisheries, but a different approach is required at the regulatory level. In the alternative, of course, Parliament could be asked to provide the required authority for the current regulatory scheme through amendments to the Fisheries Act. In other cases, such as sections 6 and 7, amendments to the Fisheries Act are the only way to provide a sound legal basis for provisions of this kind.

Licensing Scheme and Sub-delegation

            Section 4 of the Regulations provides that:

4. The Minister may issue a communal fishing licence to an aboriginal organization to carry on fishing and related activities.

Section 5 then sets out the various terms and conditions that may be attached to this “communal licence” by the Minister, including, in section 5(1)(b)

(b) the method of designation of persons and vessels, when and the method by which the licence holder is to notify the Minister of designations, the documents that constitute proof of designation, when, under what circumstances and to whom proof of designation must be produced, and the documents or information that designated persons and vessels must carry when carrying on fishing and related activities;

Section 8 of the Regulations specifies that:

8. No person other than a designated person may fish under the authority of a licence.

            On its face, section 4 appears to provide for the issue of fishing licences by the Minister of Fisheries and Oceans. If this were the case, there could be no objection to the Regulations insofar as section 43(f) of the Fisheries Act authorizes the Governor in Council to make a regulation authorizing any designated person or body to issue fishing licences. But on further consideration of the regulatory scheme and of the legal nature of the “communal fishing licence” and “designation”, it becomes apparent that what section 4 terms a “communal fishing licence” is not truly a licence but merely the instrument by which the Minister authorizes an aboriginal organization to issue “designations”, which designations give a permission to fish. In enacting section 4, then, the Governor in Council did not authorize the Minister of Fisheries and Oceans to issue fishing licences but instead authorized him to decide who should have the authority to issue such licences. It is our belief that in doing so, the Governor in Council has unlawfully delegated the authorityconferred by section 43(f) of the Act.

            A licence is a permission, given by a competent authority, to do something that would be illegal in the absence of such permission. It is the view of the Committee that the “communal licence” is not a licence at all, but the means whereby the Minister authorizes an aboriginal organization to “designate” the vessels and persons who are authorized to fish. It is evident that an aboriginal organization cannot engage in fishing or carry out related activities.  It is those persons and vessels designated by the aboriginal organization that engage in activities that would be illegal in the absence of a designation. The significance of the “communal licence” for the aboriginal organization is that it allows the organization to grant “designations”. Under this scheme, a person’s right to fish or to carry out a related activity flows from the “designation” granted or issued by the aboriginal organization. In reality, the “designation” constitutes a licence to fish or carry out a related activity.  

            The fact that the so-called “communal fishing licences” are issued to organizations that are devoid of legal personality only reinforces the conclusion that they are not true licences. “An Indian band, an Indian band council, a tribal council [or] an organisation that represents a territorially based aboriginal community” is not a person on whom license obligations may be imposed and against whom they may be enforced. This is made evident in section 7 of the Regulations, which prohibits the contravention of any “communal licence” condition, not by the aboriginal organization that is said to be the “holder” of that “licence”, but by designated persons “carrying out fishing under the authority of a licence”.  That the persons designated under a “communal fishing licence” are those actually held liable for any contravention of the terms of that licence is not consistent with the notion that the aboriginal organization is the legal holder of rights granted by licence. The terminology used in the Regulations should not be allowed to obscure the issue. Calling something a licence does not make it so, nor does calling a licence something else make it any less a licence. The true nature of any instrument is defined by the legal effect of that instrument. If the legal effect of a “designation” is to grant authority to do something that would be illegal without it, then the instrument is properly characterised as a licence even if it is not given that name.

            It is the view of the Committee that the Fisheries Act, while it would permit the Governor in Council to confer on aboriginal organizations authority to issue fishing licences, does not allow the Governor in Council to delegate to the Minister the power to confer authority to issue licences. 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 its exercise to the Minister.

            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. In enacting section 43 of the Act, it was clearly the expectation of Parliament that any conferral by the Governor in Council of the authority to issue fishing licences would be made by regulation.  The identity of the person or body authorized to issue licences, as well as the terms and conditions in accordance with which that person or body must act, would be found in that regulation, which would be dealt with in accordance with the requirements of the Statutory Instruments Act. Under the ACFLR, however, the designation of a licensing authority, as well as the prescription of the terms and conditions governing the exercise of the licensing power, will not be found in a regulation but in an administrative document (the “communal fishing licence”) that is subject to none of the requirements of the Statutory Instruments Act. 

            Under the Fisheries Act, if the authority to issue licences is to be granted to a person or entity other than the Minister, that decision belongs to the Governor in Council and it must take the form of a regulation. In the Aboriginal Communal Fishing Licence Regulations, the Governor in Council has not authorized anyone to issue fishing licences. Rather, the Governor in Council has delegated to the Minister the authority to decide who should be authorized to do so. It is the Minister who now has a discretion to decide whether or not an aboriginal organization will be given authority to issue licences. Had the Governor in Council made a regulation authorizing aboriginal organizations identified in that regulation to issue licences, and setting out the terms and conditions imposed on the grant of this authority, the regulation would clearly constitute a valid exercise of the regulation-making authority granted by section 43 of the Act.

            It may also be that the scope of section 43(f) is broad enough to support the making of a regulation in which the Governor in Council granted someone, such as the Minister, a discretion to decide who should issue licences, so long as the regulation also prescribed criteria to guide the exercise of the discretion. This, however, is not the case in the ACFLR. In these Regulations, the Minister’s discretion to decide which aboriginal organizations will be authorized to issue licences is unfettered. Hence the subdelegation.

Analysis of Departmental Response

            The Minister and his officials have not offered a satisfactory response to these objections. The initial response received from the Department prompted the Chairmen of the Committee to write to the Minister, pointing out that repeated invocations of the desire for flexibility and the need for the government to manage fisheries in a manner consistent with court decisions cannot justify the making of regulations which are not otherwise authorized by Parliament. Determining whether such parliamentary authority exists is something that must be done on the basis of the usual rules of statutory interpretation.

            In a letter of November 23, 1998, the Department asserted that the scheme of the Regulations is within the permissible scope of delegation delineated in the decisions of the Ontario Court of Appeal and Supreme Court of Canada in Peralta.  According to departmental officials, this case

… decided that the licensing provisions of the Ontario Fishery Regulations involved no impermissible subdelegation because the language of the regulation-making power in section 43 of the Fisheries Act was broad enough to allow the delegation of the administration of the regulations and there was no unconstitutional delegation of legislative power. 

The statement that the courts in Peralta found there was “no unconstitutional delegation of legislative power” is symptomatic of the apparent inability of departmental officials to correctly read the decisions they refer to. In Peralta, the authority to fix quotas was expressly stated to involve an exercise of administrative rather than legislative power. The distinction is significant.

            At issue in Peralta was the delegation to the provincial Minister by the Governor in Council of a power to fix quotas. That delegation was made in the exercise of the Governor in Council’s authority to make regulations respecting the terms and conditions under which a licence may be issued. The Ontario Court of Appeal characterized the fixing of quotas as involving the exercise of an administrative power rather than of a legislative power. Given that finding, it comes as no surprise that the Court found there was no unlawful subdelegation of the regulation-making powers granted by the Fisheries Act. The delegation of an administrative power can hardly give rise to a finding that there has been an unlawful subdelegation of legislative power or an unlawful transformation of power amounting to a subdelegation.

            Had it been found in Peralta that the authority to fix quotas involves the exercise of a legislative power, the decision could properly be read as supporting the proposition that a delegation of this power is permissible under the Fisheries Act.  As it is, the decision stands for the simple proposition that a power to make regulations respecting the terms and conditions of licences includes the power to delegate to a Minister or other public official the administrative authority to fix some of the terms or conditions of licences.

            The scheme of the ACFLR is quite different. The authority granted by Parliament is to make regulations respecting the issue of licences. A regulation providing that an aboriginal organization may issue licences would be a regulation comparable to that discussed in Peralta, inasmuch as the issue of licences is an administrative function. However, this is not at all what the Regulations do. The Regulations do not authorize any aboriginal organization to issue licences, they delegate to the Minister a discretion to determine which aboriginal organizations may issue licences. 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. The licence issuing function, which is indeed an administrative function, will be carried out by those aboriginal organizations chosen by the Minister. Here, it is the Minister who will exercise the function exercised by the Governor in Council in the factual situation dealt with in Peralta. Until such time as the Minister exercises his discretion under section 4 of the ACFLR, those Regulations do not authorize anyone to issue fishing licences. The purpose of the Regulations then is not to authorize the issue of licences, but to delegate to the Minister the authority to provide for the issue of licences. There is no common ground between this regulation and the one dealt with in Peralta.

            The preceding view was communicated to the Minister on September 26, 2000. The Minister replied to that letter on November 23, 2001. In his reply, the Minister merely referred your Committee to the decision of the British Columbia Court of Appeal in R. v. Huovinen and stated his belief that this decision supports his Department’s position on the legality of the Regulations. As we hope to have made clear earlier, the issue dealt with by the British Columbia Court of Appeal in Huovinen was whether the ACFLR permit the Minister to issue aboriginal communal fishing licences for commercial fishing in the absence of a constitutionally recognized aboriginal right. Your Committee, on the other hand, is objecting to the validity of the regulatory scheme set out in the Regulations rather than its scope, and the Huovinen decision is just as irrelevant to this issue as the Peralta decision.

            When the Minister of Fisheries and Oceans appeared before the Committee on April 11, 2002, he noted that:

Some members have argued that allowing aboriginal communities to designate individuals to fish under a communal licence is an unauthorized sub-delegation of my licensing power. That is not so.

This statement discloses that after more than four years of discussions, and in spite of the efforts of your Committee, the Minister’s advisers still do not correctly understand the Committee’s principal objection to the ACFLR. It is not the 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 Act11 to determine who can issue licences. It is simply incomprehensible to your Committee that department officials could so obviously misconstrue an argument that has been fully explained on many occasions.

Notwithstanding the apparent failure to understand the issue raised by the Joint Committee, departmental officials have put forward arguments that seemed intended to address that issue. This explains why your Committee did not realize that there was a problem until it received the evidence of the Minister. Departmental officials, for example, have been adamant that the “communal fishing licence” is truly a licence, and that it is this so-called licence “that gives the right to fish”.

Your Committee reiterates that the simplest way of dealing with this claim is to point out that it is flatly contradicted by the Aboriginal Communal Fishing Licences Regulations themselves, more particularly section 8 of those Regulations. Again, this section provides that:

8. No person other than a designated person may fish under the authority of a licence.

If a member of a particular aboriginal organization fishes without a designation, it will be no defence to a prosecution for fishing illegally to argue that a “communal fishing licence” has been issued to the organization.12 It is clearly the designation of the members of the aboriginal organization that creates the permission to fish notwithstanding a legal prohibition. To state, as the Department does, that the communal fishing licence “gives the right to fish” is akin to saying that it is the Manitoba Fishery Regulations, 1987 that give Manitoba residents the right to fish, rather than the fishing licences issued under those Regulations. Of course that statement would be true in the sense that the Manitoba Fishery Regulations, 1987 provide an indispensable legal basis for the exercise of the right to fish. But that right is nevertheless granted by the licences that will be issued under the Manitoba Fishery Regulations, 1987 and not by the regulations themselves. In and of itself, a “communal fishing licence”, like the Manitoba Fishery Regulations, 1987, does not give anyone a right to fish; it simply gives an aboriginal organization the authority to issue “designations” under which various persons, not necessarily members of an aboriginal organization, will exercise a right to fish. This reality is clearly acknowledged in section 8 of the ACFLR.

            It has also been suggested to your Committee that a “communal fishing licence” granted to an aboriginal organization does not confer rights but simply recognizes existing constitutional rights. In the same vein, it has been said that “the issuance of a communal licence is consistent with the communal nature of aboriginal and treaty rights to fish affirmed by the Supreme Court of Canada in various decisions.” These arguments overlook the fact that a great many of the so-called “communal fishing licences” issued under section 4 of the ACFLR have nothing to do with constitutionally recognized aboriginal and treaty rights to fish. In the many instances in which the members of an aboriginal organization engage in commercial fishing in the absence of a recognized constitutional right to engage in such a fishery, one can hardly argue that the “communal fishing licence” merely reflects the “communal nature” of the commercial fishery.

            Elsewhere, the Department has argued that an aboriginal organization can properly be the holder of a licence because “the Fisheries Act does not specify what type of entity can receive a licence.” Your Committee has dealt with this assertion earlier. We would have thought it obvious that those in need of a licence are necessarily those who are subject to the legal prohibition in derogation of which that licence is granted. As the Department itself acknowledged in an earlier document: “a licence is a permission to do something that the holder otherwise would not be able to do legally”. To determine whether or not an aboriginal organization can be the holder of a licence, all that needs to be asked is whether that aboriginal organization is legally prohibited from fishing. In fact, there is no statutory or regulatory provision in force that prohibits non-corporate entities such as aboriginal organizations from fishing. The persons who are members of such organizations may well be subject to a legal prohibition but as a matter of law, that does not support a conclusion that the organization of which they are members is also subject to the prohibition. Absent such a prohibition, and your Committee does not consider one could lawfully be enacted under the Fisheries Act, logic indicates that the holding of a licence serves no legal purpose for an aboriginal organization insofar as there is no reason for such an organization to obtain permission to do something it is not prohibited from doing in the first place.

            This should be sufficient to dispose of the fiction that in enacting section 4 of the ACFLR, the Governor in Council provided for the issue of fishing licences to aboriginal organizations. The purpose of section 4 is to authorize the Minister of Fisheries and Oceans to make a fisheries management agreement with various aboriginal organizations. Those agreements, labeled “communal fishing licences”, provide for the issue of fishing licences, labeled “designations”, by the organizations concerned and set out the terms and conditions governing the exercise of that licence issuing authority.

            Understandably, the Department has sought to minimize the significance of the designations issued by an aboriginal organisation under a communal fishing licence. According to the Minister “it is not the designation that allows people to fish” but the “communal fishing licence”. That “communal fishing licence” is also said to “contain many of the fishing rules”, 13 while the “designation by the organization of who can fish under the licence is merely an administrative tool; a way for the organization to administer its affairs internally”. The suggestion that “designations” are merely concerned with the internal administration of band affairs lacks credibility. Under the ACFLR:

· the method of designation of persons and vessels is set out in the “communal fishing licence”;

· the aboriginal organization is required to notify the Minister of designations;

· the documents that will constitute proof of designation are specified;

· the circumstances in which and persons to whom proof of designation is to be produced are specified;

· the information that must be reported to the Minister by designated persons or vessels is specified;

· all designations must be in writing.

These various requirements demonstrate the importance of designations in the regulatory scheme and make it impossible to accept the Minister’s claim that designations are a mere detail of internal administration. It is clear enough that in any other fishery, what the ACFLR term a designation would be termed a licence. Section 8 of the Regulations shows that for legal purposes, the designation is in fact the document that meets the criteria of a fishing licence, as it is the document that allows its holder the right to engage in fishing notwithstanding a legal prohibition.

Section 6

            Section 6 of the Regulations provides that in the event of any inconsistency between the conditions of a licence granted by the Minister and any regulation made by the Governor in Council, the licence conditions prevail to the extent of the inconsistency.  It is the view of your Committee that licence conditions established by the Minister in the exercise of the administrative power conferred by section 4 of the Regulations cannot be made to override otherwise applicable subordinate laws made by the Governor in Council pursuant to the Fisheries Act. Looking at it somewhat differently, section 6 purports to unlawfully delegate to the Minister a power to in effect “amend” existing regulations. 

No matter how liberal an interpretation of the Fisheries Act one wishes to adopt, it cannot support provisions that are in flagrant contradiction with essential principles of administrative law. While there is no doubt that Parliament could authorize officials to exercise administrative powers that take precedence over duly enacted laws, the conferral of such an extraordinary power could only be effected in the most explicit terms. It is equally certain that absent express statutory authority from Parliament, the Governor in Council may not grant public officers a discretion to vary or override existing laws.

Analysis of Departmental Response

            The Department has failed to address the objection to this provision in a cogent or acceptable manner. It has invoked the Peralta decision, although it is evident to anyone who has read it that the decision has nothing whatsoever to do with the issue to which section 6 gives rise. It has also made vague and rather unhelpful generalizations about the “intent” of Parliament.  In the end, the Department’s defence of section 6 would appear to rest on the principle that: “The Governor in Council can set out what applies where there is an inconsistency between regulatory regimes which have been validly enacted by the Governor in Council.”  Your Committee agrees with this general statement but points out that this is not what section 6 does.

            There can be no doubt that the Governor in Council would be free to enact a legislative rule providing for which of two regulations made by the Governor in Council is to prevail in the event of an inconsistency. The present situation, however, is entirely different. A licence is an administrative document; it is not legislation. Notwithstanding that the licences in question will be issued pursuant to regulations made by the Governor in Council, any inconsistency will not be between two regulations enacted by the Governor in Council, but between a regulation of the Governor in Council and a licence issued by an official. Moreover, any such conflict will only arise because the official issuing the licence has decided to include in it a term or condition that conflicts with the Regulations. This fact cannot be avoided simply because the licence is issued pursuant to a regulation, and thus forms part of a so-called “regulatory regime”.    

The Department has also denied that section 6 has the effect of permitting the issuer of a licence to override the provisions of the Regulations whenever he wishes and in whatever manner he chooses because section 6 does not delegate to the Minister the power to formally amend the Regulations. This reflects a facile approach to the issue that wilfully disregards the clear effect of section 6.

Nor does baldly stating that section 6 is valid make it so. It should be self-evident that the conferral on officials of an administrative discretion to vary or override existing laws requires express enabling authority. Such authority is entirely lacking in the present instance. Just as there must be express authority for a regulation to override its parent statute, so too must there be express authority for a regulation permitting an instrument made in the exercise of an administrative power to override regulations.

            In the course of his appearance before your Committee, the Minister set out the view that section 6 of the Regulations merely represents an exercise of the Governor in Council’s authority to determine the scope of the application of regulations made by the Governor in Council. Statements to this effect are also found in the materials prepared by the Department. However, this again ignores the fact that the regulations are legislation made by the Governor in Council while a licence is an administrative document issued by the Minister or his delegate. 

Your Committee reiterates that what section 6 purports to do is provide that a non-legislative instrument issued by someone other than Parliament’s delegate will take precedence over a legislative instrument made by that delegate. In a situation in which the conflicting instruments are both made by the same authority and are both regulations, it is clear that the regulation-making authority may provide that one regulation will supersede the other in the event of a conflict. As noted above, however, the situation envisaged in section 6 is very different, and it remains the view of the Joint Committee that a provision such as section 6 is illegal absent a specific grant of enabling authority from Parliament. Section 43 of the Fisheries Act contains no such express authority. A general power to make regulations respecting the terms and conditions of licences will not support a provision such as section 6.

Materials prepared by the Department have also stated that it was the intent of the Governor in Council that a single regime, namely that established by the Aboriginal Communal Fishing Licences Regulations, prevail so that the Minister could fix licence conditions “that he believes respect the courts’ pronouncements that the government must minimize any potential infringement of the exercise of aboriginal or treaty rights.” What this has to do with the question of the legality of section 6, however, is unclear. The fact that a regulation accurately reflects what was intended by the regulation-maker is completely irrelevant to the question of whether there is authority for that regulation.

Section 7

            Section 7 of the Regulations provides that:

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

The purpose of section 7 is to make it possible to punish the contravention of a licence condition as if it were a contravention of the Act or the Regulations.  In section 78 of the Fisheries Act, Parliament has provided that only contraventions of the Act and the regulations are to constitute offences punishable by fine or imprisonment.A term or condition of a licence is not a provision of the Act or the Regulations, and the violation of such a term or condition does not constitute a contravention of the Act or regulations within the meaning of section 78 of the Act. (Contravention of a licence condition is already dealt with in section 9 of the Act, which allows the Minister to cancel or suspend a licence.) In effect, section 7 is intended to do indirectly what could not be done directly, namely to impose criminal liability for the breach of a term or condition of a licence.If Parliament had wished contraventions of licence conditions to constitute offences, it would have so provided. Section 7 is nothing more than an attempt to treat contraventions of licence conditions, which are administrative requirements, as if they were contraventions of legislative requirements. Regardless of whether this is characterized as creating an offence or not, the requisite clear and explicit enabling authority for such a provision cannot be found in the Fisheries Act.  

            This kind of provision has been thoroughly dealt with previously by the Committee in its Second Report of the Second Session of the Thirty-sixth Parliament (Report No. 66).The Committee maintains its position that such provisions, as well as lacking legal authority, trespass unduly on rights and liberties and represent an unusual and unexpected use of the enabling authorities.

            In addition to the arguments that were thoroughly canvassed and rejected by your Committee in its Report No. 66, the Department has invoked the decisions of the Trial Division of the Federal Court and of the Federal Court of Appeal in Barnett v. Canada (Minister of Agriculture and           Agri-Food) 14 in support of the validity of this provision. The Committee has already considered these decisions in relation to the government’s response to Rreport No. 66, and concluded that they do not dispose of the issue.

            Barnett concerned the importation of alpacas into Canada from Chile. While the animals were still in quarantine in Canada it was discovered that, as a result of the actions of Chilean officials, the conditions set out in the entry permit had not been complied with. An order for the removal of the animals from Canada was then issued pursuant to provisions of the Health of Animals Act providing for the forfeiture or removal of animals imported into Canada “in contravention of this Act or the regulations”. At trial, the removal order was quashed on the grounds that the official issuing the order had fettered his discretion by failing to consider other possible courses of action in addition to forfeiture or removal, and that in any event the removal order had effectively been made, not by the official who signed it, but by another official who had no authority to make such an order. Before reaching these conclusions, however, it was first necessary for the Court to consider whether the breach of the conditions of the entry permit constituted a breach of the Act or regulations so as to trigger the provisions of the Health of Animals Act providing for forfeiture or removal.

            The trial judge began by stating the principle that “A breach of a permit condition in not automatically a breach of the Act or regulations under which it is issued. It can however be made such by express terms of the Act or regulations.” (emphasis added) She noted that sections 10(1)(a) and 60.1 of the Health of Animals Regulations “operate so as to make a failure to comply with the conditions attached to a permit a contravention of the Regulations.” The relevant portions of these provisions read:

    10. (1) … no person shall import from a country other than the United States any turtle, tortoise or their eggs, any bird, honeybee, or any mammal, except a member of the orders Rodentia, Cetacea, Pinnepedia and Sirennia, unless the person

(a) does so under and in accordance with a permit issued by the Minister pursuant to section 160; …

    160.1  Every person to whom a permit or licence is issued under these Regulations shall comply with the conditions contained in the permit or licence.

The trial judge concluded that the bringing of the alpacas into Canada other than in accordance with the conditions of the permit constituted a contravention of the Regulations, triggering the provisions of the Act providing for forfeiture or removal. She then quashed the removal order for the reasons noted above. It was this decision to quash the removal order that was appealed by the Minister.

            On appeal, the Federal Court of Appeal reversed the decision of the trial judge and restored the removal order. The Court of Appeal found that taking the Health of Animals Act as it was written, the only alternative to the forfeiture of animals imported illegally was removal.  On the question of whether a breach of the conditions of a permit constituted a breach of the Regulations, the Court of Appeal simply noted that this was the effect of sections 10(1)(a) and 160.1 of the Health of Animals Regulations.

            While the trial judge and the Court of Appeal each took note of the fact that the breach of a condition of a permit was made a contravention of the Health of Animals Regulations by the operation of sections 10(1)(a) and 160.1 of those Regulations, it bears pointing out that both failed to consider the question of whether the Health of Animals Act authorized the making of regulations the sole purpose of which is to treat a contravention of the conditions of a permit as if it were a contravention of the regulations.It seems to have been taken for granted by the courts in Barnett that if a provision of the Regulations had been enacted to require compliance with the conditions of a permit so as to make non-compliance a contravention of the Regulations, then there must be authority for that provision in the enabling statute. This is likely because the applicant did not raise the issue of the validity of sections 10(1)(a) and 160.1 of the Health of Animals Regulations.

            Yet if, as the trial judge noted, it requires express terms in the Act or regulations to make a breach of a condition of a permit a breach of the legislation under which that permit isit was issued, it logically follows that there must also be express enabling authority in the parent statuteact to permit a regulation having this effect. If Parliament itself can only make a contravention of a condition of a permit a contravention of the legislation under which the permit was issued by expressly so providing, how could it be thought that Parliament’s delegate could do this unless the power to do so is conferred by Parliament in express language? While the enabling authorities in the Health of Animals Act are quite similar to those in the Fisheries Act, in neither statute is there any express authority to make regulations for the purpose of treating the breach of the conditions of an administrative document such as a licence or permit as if it were a contravention of the law. The failure to consider the question of whether enabling authority for sections 10(1)(a) and 160.1 of the Health of Animals Regulations existed in the first place casts serious doubt on the value of the Barnett case as a precedent.

            While the Department has characterized the provisions dealt with in Barnettas being “the same in all key elements” as section 7 of the Regulations and section 78 of the Fisheries Act, this is not entirely accurate. It bears pointing out that the circumstances in Barnett did not involve the commission of an offence. The Health of Animals Regulations provide for the forfeiture of animals that have been imported in contravention of the Health of Animals Act or its regulations, and for their removal from Canada where an inspector or officer has reasonable grounds to believe that this is the case or that the animals carry disease. Forfeiture and removal are thus not dependent on there being a conviction for the offence of contravening the Act or its regulations. They may be seen as regulatory mechanisms intended to prevent the introduction and spread of disease into Canada, rather than as penalties for contravening the law. In Barnett, the question of whether contravening the conditions of the permit could be punished as an offence did not arise. The situation with respect to section 7 of the Aboriginal Communal Fishing Licences Regulations is rather different. Here, the sole purpose is to put in place a mechanism whereby the contravention of the conditions of a licence is punishable by fine or imprisonment as an offence. One may well question whether the courts in Barnett would not have viewed the matter differently had they been faced with the question of whether Mr. Barnett could be imprisoned for contravening the conditions of the permit. Perhaps at least a more careful consideration of the authority for the relevant provisions of the Regulations might have resulted.   

            To the extent the Barnett decisions stand for the principle that express language is required to make the breach of a permit condition a breach of the act or regulations under which it was issued, they are entirely consistent with the position taken by the Committee in its earlier Report. The problem in Barnett is that this principle was only partly applied by the courts. Again, if it requires express terms in the Act or regulations to make a breach of a condition of a permit a breach of the legislation under which it is issued, it follows that there must be express authority in the parent statute in order to make a regulation having such an effect. In not considering the question of the authority for sections 10(1)(a) and 160.1 of the Health of Animals Regulations, both the Trial Division of the Federal Court and the Federal Court of Appeal failed to deal with this second aspect of the principle.

The Department has repeatedly sought to argue that section 7 of the Aboriginal Communal Fishing Licences Regulations does not create an offence, but rather merely creates a rule of conduct, namely an obligation to comply with the terms of a licence. In its view, it is section 78 of the Act that creates the offence. In Report No.66, the Committee characterized such a line of argument as “disingenuous”. As the trial judge in Barnett observed,provisions such as the one in question “operate so as to make a failure to comply with the conditions attached to a permit a contravention of the Regulations”.

            In the course of their appearance before the Committee, officials representing the Department conceded that in the absence of section 7 of the Aboriginal Communal Fishing Licences Regulations, it would not be possible to fine or imprison someone for the breach of a term or condition of a licence. It is section 7 of the Regulations that makes it possible to do so. Indeed, the only conceivable purpose of section 7 is to open up those who contravene the terms or conditions of a licence to criminal prosecution.In short, the exercise of an administrative discretion by officials is enforced as if it were law.

 There is, however, no provision of the Fisheries Act that authorizes the making of regulations for the purpose of making a breach of a licence condition punishable in the same way as a breach of a regulation or of the Act itself. It matters not whether section 7 is characterized as establishing a rule of conduct; the point is that this “rule” has been established for an illegal purpose.

            If non-compliance with certain requirements is to give rise to punishment by way of fine or imprisonment, then this should be expressly provided in a statute. It is properly the role of Parliament, not the government, to decide in what circumstances penal sanctions may be applied to those who are subject to Parliament’s enactments.15

         Notwithstanding Standing Order 109 of the House of Commons, the Committee requests that the Government table a comprehensive response to this report within 90 days.

          A copy of the relevant Minutes of Proceedings and Evidence (Issue No. 17, First Session, Thirty-seventh Parliament) is tabled in the House of Commons.

Commentaires préliminaires

            Les inquiétudes du Comité quant à la légalité des dispositions réglementaires qui font l’objet du présent rapport ont été communiquées au ministère des Pêches et Océans par lettre datée du 9 décembre 1997. En réponse, le ministère a longuement traité du bien-fondé de la politique qui sous-tend le Règlement sur les permis de pêche communautaires des Autochtones (« le RPPCA » ou « le Règlement ») et rappelé en détail les considérations qui ont amené le gouvernement à établir un tel régime. Aussi intéressants que soient ces aspects, nous tenons à préciser que le bien-fondé du Règlement ou celui des politiques gouvernementales sur la gestion des pêches canadiennes ou des pêches autochtones ne sont pas des questions qui entrent dans le cadre du mandat du Comité mixte.

            Le besoin de souplesse administrative dans la gestion des pêches a été mis de l’avant à de nombreuses reprises à l’égard du RPPCA. Votre Comité ne doute pas que le Règlement mette en place un régime dont la souplesse correspond aux besoins du gouvernement mais fait remarquer que ceci n’a rien à voir avec la question de la légalité du Règlement. Aussi évident que cela puisse paraître, la légalité d’un règlement n’est pas fonction du degré auquel celui-ci sert les besoins administratifs du gouvernement. Dans l’évaluation de la légalité du RPPCA, la question n’est pas de savoir si celui-ci confère au ministre la marge de manœuvre dont celui-ci dit avoir besoin mais plutôt de savoir si le Parlement a autorisé les moyens utilisés pour donner cette marge de manœuvre au ministre.

            Les fonctionnaires du ministère ont beaucoup insisté sur le fait que la Loi sur les pêches confère des pouvoirs réglementaires importants en relation avec la gestion des pêches canadiennes et ont souvent cité les commentaires de la Cour d’appel de l’Ontario dans Re Peralta and the Queen in right of Ontario et al 1  à cet égard. Le Comité mixte a toujours considéré que la Loi sur les pêches confère des pouvoirs étendus et la décision Peralta ne fait que confirmer ce point de vue. Cela dit, le Comité demeure conscient qu’aucune attribution de pouvoir n’est dépourvue de limites qui découlent à la fois des termes utilisés pour attribuer le pouvoir et des principes généraux du droit administratif.

            Un autre aspect sur lequel le ministère est revenu souvent est que le RPPCA vise à mettre en œuvre certaines décisions des tribunaux sur les droits de pêche des Autochtones, dont la décision de la Cour suprême dans R. c. Sparrow. 2  Si le Comité ne doute pas que le gouvernement doive donner effet aux décisions des tribunaux, il n’accepte pas que la Loi sur les pêches  doive nécessairement être lue comme conférant au gouvernement les moyens nécessaires pour ce faire. La Loi sur les pêches doit être interprétée et appliquée comme n’importe quelle autre loi. Il se peut que, dans certains cas, les pouvoirs délégués par la Loi suffisent à mettre en œuvre certaines décisions judiciaires. Dans d’autres cas, ils ne le seront pas et le gouvernement devra alors demander des modifications législatives au Parlement pour lui permettre de mettre en œuvre les décisions des tribunaux.

            Le ministère a été incapable de nous soumettre une argumentation juridique  convaincante en faveur de la légalité du Règlement. Les réponses fournies par le ministère ont souvent été marquées par l’improvisation et le manque de pertinence. De plus, le témoignage des fonctionnaires du ministère a permis de constater que leur compréhension de la nature des problèmes soulevés par le Comité et de l’application de la Loi sur les pêches était parfois déficiente. A titre d’exemple, votre Comité s’est fait dire par l’avocat général principal du ministère que l’article 43f) de la Loi sur les pêches 3 ne permet pas au gouverneur en conseil d’adopter un règlement prévoyant l’attribution de permis de pêche parce que l’attribution des permis est une fonction exclusive du ministre en vertu de l’article 7 de la Loi. Ces remarques font preuve d’une sérieuse méconnaissance de la Loi et l’avocat général principal devait d’ailleurs se rétracter par la suite.

            Les dispositions de la Loi sur les pêches qui créent des infractions visent des personnes et s’appliquent à des personnes physiques ainsi qu’à des personnes morales. L’argument mis de l’avant par l’avocat général principal du ministère selon lequel le mot « personne », tel que défini au Code criminel, a été incorporé à la Loi sur les pêches  par le biais de l’article 34 de la Loi d’interprétation est celui-là même que la Cour suprême du Canada a rejeté dans Regina c. Eldorado Nuclear Limited. 4  De plus, le Comité fait remarquer que cet argument n’est même pas mentionné par la Cour d’appel de la Colombie-britannique dans The Queen c. Township of Richmond.5 Dans cette affaire, la Cour était appelée à décider si une corporation municipale pouvait être déclarée coupable d’une infraction à la Loi sur les pêches. La Cour a décidé que oui, en se basant uniquement sur l’article 35 de la Loi d’interprétation. 6

… dans l’affaire R. v. Beaulieu,7 une bande indienne a été poursuivie en vertu de  la Loi sur les pêches. Lors du procès, la bande indienne a plaidé, en vain, qu’elle ne pouvait être accusée. La déclaration de culpabilité de la bande indienne a fait l’objet d’un appel couronné de succès, mais pour des motifs différents.

There is finally one further significant and questionable point with respect to the Band (one which thankfully I need not decide). The agreed statement of facts said simply that this appellant was an Indian Band. […] The Act, however, is silent on the legal capacity of a band. For this reason, Canadian case law is highly ambivalent on the question of the legal status of a band. They are not bodies corporate and there is nothing in the statute referring to it as a legal entity. Yet it is a creature of statute and Parliament can be presumed to have intended that a band should have duties and liabilities in respect of those powers that it may exercise by virtue of the statute. The emphasis, however, is on the powers exercised by virtue of the statute. Just because a ‘band’ is one thing in some contexts does not mean it is necessarily the same thing in all contexts. In civil disputes, especially ones involving contracts entered into by a band, most courts have held the band to be a body capable of suing and being sued. But no case that I am aware of has held that a band generally has a legal status (equivalent to that of a person or a body corporate) for purposes of prosecution in a criminal or quasi-criminal case. I raise this point because no one at the trial seemed to have considered the question of whether the Band is an entity that can be prosecuted. It was not also raised in the written briefs filed by the parties on this appeal but it was the subject of some discussion at the hearing. As I said, I do not have to answer this question but it is one worthy of further consideration should the authorities ever contemplate laying criminal or quasi-criminal charges in the future against a band. (notre souligné) 8 

            A moins qu’elles ne prévoient autrement, soit expressément, soit par implication, les lois du Parlement s’appliquent aux personnes physiques qui sont sujets de Sa Majesté. Les lois lient aussi les personnes morales auxquelles on reconnaît la personnalité juridique d’une personne physique, en conformité avec la définition de « personne » de l’article 35 de la Loi d’interprétation. La Loi sur les pêches, comme beaucoup d’autres lois, s’applique aux personnes. Les activités qu’elle régit sont des activités auxquelles s’adonnent des personnes et les infractions qu’elle édicte sont applicables à ces personnes. Cette Loi inclut expressément les personnes morales mais n’inclut pas les entités qui n’ont pas la personnalité morale. 9

            Les fonctionnaires du ministère ont souvent renvoyé le Comité à des décisions judiciaires qui se sont révélées être non pertinentes ou qui avaient été carrément mal comprises par les fonctionnaires. Un autre exemple de cela est fourni par la décision de la Cour d’appel de la Colombie britannique dans R. c. Huovinen.10 Dans son témoignage, l’avocat général principal du ministère des Pêches et Océans a dit que :

Cette déclaration démontre qu’après plus de quatre ans de discussions et malgré les efforts du Comité, les conseillers du ministre n’ont encore pas compris la principale objection du Comité au RPPCA. Ce n’est pas le pouvoir administratif de délivrance des permis qui, de l’avis du Comité, a été illicitement délégué, mais plutôt le pouvoir législatif conféré au gouverneur en conseil par l’article 43f) de la Loi sur les pêches11 de décider qui peut délivrer des permis. Votre Comité trouve incompréhensible que les fonctionnaires responsables puissent rester ignorants de la nature véritable d’un argument juridique qui leur a été expliqué à de nombreuses reprises.

Si un membre d’une organisation autochtone pratique la pêche sans désignation, cette personne ne saurait offrir le « permis communautaire » comme justification dans le cadre d’une accusation d’avoir contrevenu au Règlement.12 En fait, la seule justification qui peut être offerte prend la forme d’une désignation et c’est clairement la désignation  des membres d’une organisation autochtone qui crée le droit de pêcher nonobstant une interdiction légale.  Prétendre, comme le fait le ministère, que c’est le permis communautaire qui donne l’autorisation  de pêcher est un peu comme si on disait que c’est le Règlement de pêche du Manitoba de 1987 qui accorde aux résidents du Manitoba le droit de pêcher plutôt que les permis de pêche qui leur sont délivrés. Un tel énoncé serait vrai dans le sens où le Règlement de pêche du Manitoba de 1987 fournit l’assise juridique indispensable au régime de permis de pêche. Mais ce sont néanmoins les permis de pêche émis en  vertu du règlement manitobain et non pas le règlement lui-même qui donne un droit de pêcher.  En soi, une « permis communautaire », tout comme le Règlement de pêche du Manitoba de 1987, ne donne à personne le droit de pêcher; il confère tout simplement à une organisation autochtone le droit d’émettre des « désignations » à diverses personnes, qui ne sont pas nécessairement des membres de l’organisation, leur permettant d’exercer un droit de pêche. Cette réalité est clairement celle que reflète    l’article 8 du RPPCA.

            Pour des motifs évidents, le ministère a aussi cherché à minimiser l’importance des désignations qu’émet une organisation autochtone en vertu d’un permis communautaire. Selon le ministre, « ce n’est pas la désignation qui autorise les gens à pêcher » mais le permis communautaire délivré par le ministre. Le permis communautaire, selon le ministre, contient « plusieurs règles de pêche »,13 alors que « la désignation faite conformément aux conditions du permis ne constitue qu’un simple outil d’administration, une façon pour l’organisation d’administrer ses affaires au niveau interne. » L’affirmation voulant que les « désignations » concernent simplement l’administration interne des affaires d’une bande n’est pas sérieuse. En vertu du RPPCA :

            En plus des arguments qui ont été examinés en détail et rejetés par votre Comité dans son Rapport no 66, le ministère invoque, à l’appui de la validité de cette disposition, les décisions de la Cour fédérale, tant en première instance qu’en appel, dans Barnett c. Canada (ministère l’Agriculture et de l’Agroalimentaire) 14. Le Comité a déjà étudié ces décisions en relation avec la réponse du gouvernement au Rapport n^o 66 et a conclu qu’elles ne règlent pas la question.

            Si le fait de contrevenir à certaines exigences doit mener à une amende ou un emprisonnement, cela doit être prévu expressément dans une loi adoptée par le Parlement. Il revient au Parlement, et non au gouvernement, de décider dans quels cas ceux qui sont assujettis aux lois qu’il édicte sont passibles de sanctions pénales.15