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Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 3 - Evidence

OTTAWA, Thursday, February 27, 2003

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:35 a.m. for the review of statutory instruments.

Mr. Gurmant Grewal (Joint Chairman) in the Chair.


The Joint Chairman (Mr. Grewal): Good morning ladies and gentlemen. I call the meeting to order. As you know, the next meeting will be on Thursday, March 20.

Today, we have one item for review on the agenda. We will hear from officials from the Department of Fisheries and Oceans, after which they will be excused so that we may have a discussion on the report.


The Joint Chairman (Mr. Grewal): There are documents before you in respect of two aspects relevant to the Aboriginal Communal Fishing Licences Regulations: Sub-delegation and Legal Personality of "Aboriginal Organizations.'' They are well prepared documents and I thank the Consul General for that. We also have before us the government response to the committee's sixth report on the Aboriginal Communal Fishing Licences Regulations.

Our witnesses from DFO are Mr. Stringer, Ms. Green and Ms. Grealis. As you will recall, the committee wrote to the department with respect to two issues. We expect departmental officials to limit themselves today to dealing with the following two questions. First, is the Fisheries Act binding on Aboriginal organizations as this term is defined in the Aboriginal Communal Fishing Licences Regulations, so that fishing licences may be issued to an Indian Band, an Indian Band Council, a Tribal Council and any organization that represents a territorially-based Aboriginal organization so that these organizations may be subjected to penal consequences for failing to respect the conditions of such fishing licences? Second, given that the joint committee's objection to the Aboriginal regulations was that the authority of an Aboriginal organization to issue designations depends on the discretionary decisions by the Minister of Fisheries and Oceans, in what way have the amendments made by SOR/2002-225 altered this scheme? Is it or is it not the case that the authority of an Aboriginal organization to issue designations continues to depend on a discretionary decision by the Minister of Fisheries and Oceans? These are the two issues that we would like to hear about from departmental officials this morning.

Ms. Mary Ann Green, Director, Legislative and Regulatory Affairs, Department of Fisheries and Oceans: Thank you for the opportunity to appear before you in respect of the Aboriginal Communal Fishing Licences Regulations. I am Mary Ann Green and I am the Director of Legislative and Regulatory Affairs of the Department of Fisheries and Oceans. With me are Mr. Kevin Stringer, Executive Director of Aboriginal Programs, and Ms. Ruth Grealis, Senior Legal Counsel in the Department of Justice.

As requested in your most recent letter to Minister Thibeault, we will restrict our comments to the two questions that you posed. From our perspective, the regulatory amendments that were made last year by the Governor in Council were simply intended to clarify the provisions. It is evident that different points of view remain on this issue.

We have prepared a written submission that I would like to table now. I have asked Ms. Grealis to highlight the contents of the document for the committee. Should we hand them out, or do people have them?

The Joint Chairman (Mr. Grewal): We already have them. Please carry on.

Ms. Ruth Grealis, Senior Counsel, Department of Justice: I will look at the two questions in turn, which is the way they appear in the document.

With respect to the first question, it is our position that the Fisheries Act does apply to Aboriginal organizations as that term is defined in the Aboriginal Communal Fishing Licences Regulations, ACFLR. The raised question actually has two parts. The first regards the holding of a licence, and the second, non-compliance with conditions of a licence. The question of whether an Aboriginal organization can hold a licence is not determined by whether it can be subjected to penal sanctions. Sanctions for breach of the law depend on what is enacted in the legislation. In our view, there is authority in the Fisheries Act to provide for the issuance of licences to Aboriginal organizations. In general, a licence is a legal instrument that allows an activity to take place. It must define or identify the activity, which is usually done through conditions. In the case of communal licences, they usually have a substantial number of conditions.

Communal licences issued by the minister give the permission to fish and set out various conditions that must be adhered to, such as when, where, how and with what gear fishing can take place.

The Fisheries Act contains broad powers. The minister and the Governor in Council both have broad powers under it. Section 7 of the Fisheries Act, which is the section that sets out the minister's absolute discretion to issue licences, does not specify the kinds of entities to which they can be issued. Paragraph 43(f), where the Governor in Council may make regulation for carrying out the provisions of the act, in particular the issuance of licences, also does not indicate the entities to which those licences can be issued. It is our position that the word "respecting,'' in the context of the broad scope of the regulation-making power in section 43 of the Fisheries Act is sufficient for the Governor in Council to determine the kind of entities to whom they will issue licences.

The Fisheries Act does not preclude the issuance of a licence to an association, an Aboriginal organization or other entity, to authorize the activities that a person connected with that association or organization might conduct. The Aboriginal Communal Fishing Licences Regulations specifically authorize that.

It is our position that an entity that can engage in commercial transactions is also capable of holding a licence. The document sets out various cases, which indicate that Aboriginal bands, band councils and non-incorporated entities can have various legal capacities and powers, depending on varying circumstances. In the Montana Indian Band case, Madam Justice Reed actually does review the past law on Aboriginal bands and band councils. She looked specifically at the capacity of a band to sue or be sued, and indicated that jurisprudence establishes that, because of the particular powers and obligations imposed by statute on a band, there must exist an implied capacity to sue and be sued with respect to the exercise of those powers and the meeting of those obligations. A couple of cases are cited. One in particular is the Big Trout Lake Indian Band case, which again refers to several earlier cases. It indicated that a band council's legal status to sue or be sued in its own name arises as a result of various powers and obligations having been conferred on it by statute. The band council has the capacity to function and take on obligations separate and apart from its individual members, as does a corporation.

Another case is the Francis v. Canada case, which is a labour relations board case. In that case, the St. Regis Band Council argued it was not a person within the meaning of the Canada Labour Code. This was a Supreme Court of Canada case. In the code, "employer'' was defined to mean any person who employs one or more employees. The Indian band council argued that it could not be an employer, as the council lacked statutory corporate status under the Indian Act and was not a person. However, the Supreme Court of Canada found that the band council was an employer under the code for the purposes of certification for collective bargaining. While the case did not raise the issue of penal sanctions, we note that there were penalties in the Canada Labour Code, as it then was, and there are currently penalties on summary conviction or various penalties for offences committed by employers. We also note that, in the course of the decision, the court commented that the Interpretation Act provides that the singular includes the plural. The word person in the code therefore includes persons; the council is a designated body of persons, which has been given a specific role under the Indian Act.

The Francis case cites another case this time, which is the International Brotherhood of Teamsters v. Therien, another Supreme Court of Canada decision. In Therien, the union appealed damages awarded in tort action against the union. The union, which had been certified under provincial legislation as a bargaining agent, was not incorporated. It argued that it was not a legal entity that could be found liable in tort. The appeal was dismissed and the opinions of the Court of Appeal, especially as expressed by Mr. Justice Lock, were accepted by the Supreme Court of Canada. They held that creatures of statute, in the absence of anything to show a contrary intention, are subject to the same duties and liabilities, as the general law would impose on a private individual doing the same thing.

Nothing in the Fisheries Act precludes the issuance of a licence to an Aboriginal organization. In addition, it is consistent with the nature of Aboriginal and treaty rights that have been affirmed by the Supreme Court of Canada in various decisions. In our view, the authority under section 43 of the act is broad enough to provide for the issuance of licences to Aboriginal organizations, as that term is defined in the regulations.

Looking to the second part of that question, as I had indicated there were two parts, the regulations provide the licensing mechanism, and hence the enforcement mechanism, for all fishing conducted under the Aboriginal Fisheries Strategy, which was implemented following the Sparrow decision and the Marshall Response Initiative.

Enforcement is intended to encourage compliance with the terms and conditions of a licence and the provisions of the Fisheries Act and regulations. While in the usual course it is unusual to charge an Aboriginal organization, there are sanctions that clearly could be imposed under the act; for example, cancellation or suspension of a licence under section 9 of the act. In a situation of fishing under a communal licence, penalizing entire communities for the actions of a few may not be appropriate. It is our view that the objective of encouraging compliance with fishing licences and legislation is better served by charging those individuals who are non-compliant. This way, those who have done nothing wrong can continue to fish in accordance with the licence and the legislation.

In the draft report that was provided for DFO's review, DFO was asked to explain why the Fisheries Act, if we think it applies to any entity, needed to expressly apply to corporations. The Fisheries Act mentions the word corporation in only one provision. That is section 78.2 of the act. That provision provides that:

Where a corporation commits an offence under this Act, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted.

The purpose of this provision is not to make the Fisheries Act apply to corporations. Because of the structure of corporations, Parliament decided to extend the liability of certain persons in the corporations. For instance, this extends even the Criminal Code liability, through words such as acquiesced.

The fact that there is no similar provision for unincorporated bodies or entities does not mean that those bodies are not bound by the Fisheries Act. It simply means they may not be the kinds of structures for which this kind of liability should be imposed. We also cite a few cases as reference. There is a case, from Alberta, called the Paul Band case. In that case, the band was found guilty of failure to pay wages, as charged under the Alberta Labour Act of 1973, and was ordered to pay fines and judgment.

As Jack Woodward points out in his book Native Law, the conviction was set aside on appeal on jurisdictional grounds, not on the grounds a conviction cannot be entered against a band.

In the case of Gwynn v. Ochapawace, a personal injury action in negligence for the operation of a ski resort was brought against both a band and the band council in their representative capacity. Both were found negligent and liable for damages.

We have already referred to the Beaulieu case, and will not discuss that further.

Another case is the United Nurses of Alberta v. The Province of Alberta, a Supreme Court of Canada decision where the majority of the court found that the union, an unincorporated association, may be liable for a criminal offence, including criminal contempt. They said this was true at common law, and they used the fact that it could be liable under the Criminal Code to help in the interpretation that it could be liable at common law, as well.

The draft report refers to the Eldorado Nuclear Ltd. case. It is our position that this decision would not contradict our position that the Criminal Code definition of person, which is very broad, applies to the Fisheries Act by virtue of section 34(2) of the Interpretation Act, which relates to where there are summary conviction or indictable offences in a piece of legislation. All provisions of the Criminal Code relating to indictable offences or summary conviction offences apply.

The key issues in the Eldorado case relate to Crown immunity. Under section 16, which is now section 17 of the Interpretation Act, legislation cannot apply to bind the Crown unless it specifically says it binds the Crown. In this case, the Combines Investigation Act that was at issue did not at that time contain the provision that it bound the Crown. What the court, in our view, said was that the section 27(2), now 34(2) of the Criminal Code, could not be used to make a piece of legislation that does not bind the Crown, bind the Crown. You could not import the definition of "everyone'' from the Criminal Code into the legislation for the purpose of binding the Crown because that would be expressly contrary to the provision in the same Interpretation Act that said it had to be expressly said in the legislation or the act before it could bind the Crown.

Looking briefly at the second question raised by the committee, Annex 1 sets out the changes made to the legislation, the regulations, in the summer of June of 2002.

Prior to June of 2002 amendments to the Aboriginal communal fishing licences regulations, the minister designated persons to fish and vessels to be used in fishing under a communal licence as a condition of the licence. For example, the condition could indicate that members of an Aboriginal organization were designated to fish under the licence or it could provide that the Aboriginal organization would designate those persons to fish under the licence. In 2002, for clarity, the Governor in Council amended the Aboriginal communal fishing licences regulations to set out the authority of Aboriginal organizations to designate fishers and vessels. The Governor in Council also specified the circumstances when Aboriginal organizations could designate persons and vessels, and distinguished the licensing and designation provisions.

Before we look briefly at the changes, I want to note that the regulatory amendments were made under section 43 of the Fisheries Act, which is the general regulation-making authority. They were not limited to being made under section 43(f), which was the one with respect to issuance of licences.

In our view, the general authority for the Aboriginal Communal Fishing Licences Regulations is found in 43 as a whole. When you look at sections 43(f), the one respecting licences, (g) respecting licence terms and conditions, among others, read with the paragraphs (a) respecting proper management control of fisheries and (b) conservation and protection of fish, and the opening words of the regulations, there is sufficient authority for the Aboriginal Communal Fishing Licences Regulations in general, and for 3 and 4, in particular.

I am just citing quickly from Peralta found in annex 2.

The first particular power given under the regulation making power of the Governor in Council is for the proper management control of seacoast and inland fisheries. This states the general purpose of the entire section and a wide authority is conferred in the following subsections by the use, as noted earlier, of the word "respecting'' embracing any regulation for any purpose coming within the defined subject matter.

All of those regulation-making authorities I listed start with the word "respecting.''

Looking briefly at the changes that were specifically made, they are set out in annex 1.

Three new provisions were added to section 4 of the regulations specifically dealing with designations. Section 4, which is the provision that said the minister may issue a communal licence to an Aboriginal organization to carry on fishing and related activities, became section 4(1). The definition of licence in the regulations was amended to clearly reflect that it was referring to a licence issued under section 4(1). When licences then used in 5(1), for setting out conditions in the licence, it is the licence issued under section 4(1).

Three provisions were added to designations. Section 4(2) provides specifically that the minister may designate in a licence persons who can fish under the authority of a licence and vessels that may be used in fishing under the authority of a licence. Section 4(3) provides that if the minister does not designate persons who may fish under the authority of a licence, the Aboriginal organization may designate in writing those persons. Section 4(4) says if the minister does not designate the vessels that may be used to fish under the authority of the licence, the Aboriginal organization may designate in writing those vessels.

So the Governor in Council, in our view, now explicitly provides in the regulations the authority for Aboriginal organizations to designate fishers and vessels in certain circumstances. It is our view that criteria are not required for determining when they can designate persons and vessels.

Paragraph 5(1)(b), which was the section under which the condition of licence was implemented before, was amended to remove the method of designation, which is now set out in the regulation, itself. However, the other parts of that provision still exist. Therefore, whether the minister designates under 4(2) or chooses not to designate, the minister can still include in the licence conditions respecting designations. For instance, they might contain conditions that say when or how an Aboriginal organization is to identify and notify the minister of designations, and the documents that would constitute proof of designations.

That basically highlights the actual sections.

The Joint Chairman (Mr. Grewal): Is that all?

Ms. Grealis: I was going to explain how we interpret those sections, briefly.

Basically, it is our view that the legal instrument authorizing the fishing to take place is the licence. The minister under subsection 4(1) gives the permission to fish and sets out the conditions. Without the licence, itself, and the other element such as when and where to fish, the designation is meaningless. The designation is just one element.

The minister has power to decide whether to set out designations in the licences, an administrative power similar to that to set out conditions in a licence discussed in the Peralta case. In that case, the court made it clear that Governor in Council has the power to delegate administrative powers.

DFO's position is that the authority of the Aboriginal organization to designate fishers and vessels flows from 4(3) and (4) of the regulations. While the ability of an organization to designated under 4(3) and (4) depends on whether the minister has designated under 4(2), it is the Governor in Council and not the minister that has specified the circumstances.

The Supreme Court of Canada indicated that power could be delegated for licence conditions. The minister's decision not to designate is no different from any other decision not to impose a particular term or condition in the licence. If the minister decides not to exercise its subsection 4(2) power, then the Aboriginal organizations can do it. If the minister decides not to impose some other aspect of the fishing condition, then subject to applicable law, the holder of the licence can make those decisions. The licence does not regulate it.

In the ACFLR, the governor in council has made this clear. Where the minister issues a commercial licence to an individual who has a crew or an Aboriginal organization or a corporation, it is usually the licence holder and not the minister who decides who the crew will be. It is our position that there is no unauthorized subdelegation in the regulations with respect to designations.

However, it is also our position that you can sub-delegate in accordance with the principles set out in Peralta. There are some quotations from the Peralta decision set out in the document. It suggests that the maxim delegatus non potest delegare does not state a rule of law. It is, at most, a rule of construction and in applying it, you have to look to the statute in its entirety.

Looking at the nature and purpose of the statute and the use of the word `respecting' —

— speaking of the Fisheries Act in what was then section 34, now 43 —

— I am persuaded that subdelegation was intended by necessary implication, and the prima facie rule of construction delegatus non potest delegare gives way to the intent of the legislation.

The court decision says:

...I have concluded that the Governor in Council was empowered by the wording of s. 34 to subdelegate as it did.

Ms. Green: We would be pleased to answer any questions the committee may have at this point.

Mr. Lee: Is that all there is? You appear to have reiterated the positions you stated before. Those positions have not found favour with the committee. We appear to be at an impasse. I have some questions of course, but is that it?

Ms. Grealis: As you have indicated, it appears that our positions differ on a number of points.

Mr. Lee: That does not leave us much room. We may as well move to our report if we cannot bridge the gap. Thank you for answering the questions to the best of your ability.

Ms. Grealis: Do you have specific questions?

Mr. Lee: Yes, I do. However, we will get into a shooting war over legalisms and end up not agreeing. I would have hoped that your position here today would have been more constructive. I am not being critical; I am just saying that your department appears to be stuck in the ice off Newfoundland. We are not moving very far. I will ask a couple of questions. Perhaps it will help.

I will direct my question to Ms. Grealis. You said that the maximum delegatus non potest delegare is kind of a flexible maxim of interpretation, and it might fit the department's paradigms. The committee does not feel that this is a maxim we can discard.

It is our view that when Parliament delegates to someone, that is bedrock. Nobody gets to further move the delegation to someone else.

Our committee's role is to ensure that the statutes that have been passed by the Houses are followed. If your department wants to try to delegate something because you feel that you can or because you feel that you need not follow the law or the provisions in our statutes, that is fine. However, when this committee takes the view that the law does not permit a delegation, there is not much wiggle room for us. Why do you think that you can walk from the maxim?

Ms. Grealis: I was citing from the Court of Appeal decision in Peralta, which was affirmed by the Supreme Court of Canada. I was citing that which they were citing from Driedger. Basically in Driedger, they say,

There is no rule or presumption for or against subdelegation. The language of the statute must be interpreted in light of what the statute is seeking to achieve. As Professor Willis pointed out, the maxim delegatus non potest delegare does not state a rule of law. It is 'at most a rule of construction' and in applying it to the statute, there, of course, must be consideration of the language of the whole enactment and its purposes and objects.

The court then looked at the Ontario Fishery Regulations made under the Fisheries Act, and discussed the earlier quote that I gave you on the broad powers of the Governor in Council under what is now section 43. They made it clear that under that section, the Governor in Council can delegate its administrative authorities.

I will cite further from the same Peralta decision:

Looking at the nature and purpose of the statute, in this case the Fisheries Act, the use of the word "respecting,'' I am persuaded that subdelegation was intended by necessary implication and that prima facie role of construction delegatus non potest delegare gives way to the intent of the legislation.

I had noted that the word "respecting'' appears in most of the provisions for regulation-making authority. I quote further from Peralta, "As I have already said, I have concluded that the Governor in Council was empowered by the wording of section 34 to sub-delegate as it did.''

In our view, the minister is not delegating any authority. It is the Governor in Council that has set out in subsections 4(2), 4(3) and 4(4) how the designations are done.

Mr. Lee: These are your words pretty closely, because I wrote them down. You said that if the minister decides not to exercise his authority, then the Aboriginal organization could do it.

That sounds like a delegation. Before we get to that, I will be real picky. What is this authority that has to be exercised?

Ms. Grealis: I was referring simply to section 4(2) that says that the minister may designate the person who can fish under the licence or the vessels that can be used in fishing under the licence. The Governor in Council has turned her mind specifically to what would happen if the minister did not do that. They have provided for the Aboriginal organization, which is the holder of the licence, to designate. For us, the authority is 4(3) and 4(4).

Mr. Lee: That is the authority to issue a licence or the authority to select one who can issue a licence? Which is it?

Ms. Grealis: In our view, it is neither. It is simply to designate fishers, which is one element of the licence. The designation on its own does not authorize fishing. It must first be that a licence is issued to the Aboriginal organization. It is one element. It is similar to picking the crew.

Mr. Lee: I am just asking you to be specific. I offered you two alternatives to describe precisely the authority. You said that it is neither the issuance of a licence nor the issuance of an authority to issue a licence.

Ms. Grealis: Right. It is, instead, the licence holder picking its crew, basically designating who can fish.

Mr. Lee: If the minister decides not to exercise his authority, what is that authority?

Ms. Grealis: I am referring to the designation authority. Before one can get to section 4(3) and 4(4), the minister must have first issued a licence under section 4(1). Where the minister has issued the licence under section 4(1), and does not designate.

Mr. Lee: I must be obtuse. What precisely is the authority?

Do not tell me what comes in front of it, behind it, upstairs, or downstairs. Tell me precisely what authority you are referring to? Are you able to tell me what you mean when you said, "if the minister decides not to exercise his authority, then the Aboriginal organization can do it''? What, precisely, is that view?

Ms. Grealis: In our view, section 4(2) is not that different from a licence condition. It is one of the elements of the fishing activity. Section 4(2) indicates that the minister may designate individuals to fish or vessels to be used in fishing under a licence. If he does not designate individuals to fish or vessels to be used, but he has issued a licence under section 4(1), then under the proposed sections 4(3) or 4(4), an Aboriginal organization may select the crew, the individuals to fish, the persons to fish under the licence or the vessels to be used. However, the designations alone do not authorize fishing. First, a licence is required.

Mr. Lee: Okay. The authority that you have just described is the authority to pick individuals who can decide who will fish.

Ms. Grealis: No. The Governor in Council has indicated that Aboriginal organizations —

Mr. Lee: It is the authority that the minister will or will not use. The authority that you are describing in your sentence is the authority to select a group, who will then select who will fish. Am I not correct? If the minister does not exercise his authority, then the Aboriginal organization can exercise its authority. The authority to which you refer is the authority to select someone who can fish.

Ms. Grealis: I think that you are quite right; we have a different view on this. The Governor in Council has said in what circumstances the Aboriginal organization can select who will fish. Those circumstances occur when the minister has issued a licence and has not put that particular condition or element in it — the designation. He may, though, have put all of the other elements in the licence. He would have issued the licence under section 4(1). He would still have to have included such things as the time, the location, where and the gear. The licence — the authority to fish — is the licence under section 4(1). The Aboriginal organization is given the ability to select its crew, basically, where the minister has not identified who will be in the licence.

Mr. Lee: So, either the minister selects the crew or the Aboriginal organization selects the crew. That is the authority that you are talking about.

Ms. Grealis: Basically, yes it is.

Mr. Lee: Why am I having difficulty focusing on this? Something has been delegated — an authority that is being exercised or not exercised.

Ms. Grealis: The authority of the Governor in Council, in our view, under section 43, includes the ability to delegate administrative functions. We take that from Peralta.

Mr. Lee: What function is it? Could you tell me the function? Do not tell me what comes before it or after it. Tell me the function — the authority that has been delegated that he will either exercise or that he will give to an Aboriginal authority to exercise.

Ms. Grealis: The Governor in Council has given to either the minister or to the Aboriginal organizations, depending on the circumstances, the ability to designate fishers and vessels.

Mr. Lee: It is the authority to designate a fisher.

Ms. Grealis: It comes from the Governor in Council directly, in our view.

Mr. Lee: I understand that. The minister may designate the fishers or he may move that authority to the Aboriginal organization, which may then designate the fishers. Is that right?

Ms. Grealis: This is where we disagree. It is the Governor in Council who has set out the circumstances.

Mr. Lee: We do not disagree. They are your own words. If the minister does not exercise his authority, then the Aboriginal organization can do it.

Ms. Grealis: Then the Governor in Council has provided for that.

The Joint Chairman (Mr. Grewal): We could come back to this issue.

Mr. Wappel: Good morning. I know that you have worked long and hard to try to understand our position, and I think we have tried hard to understand your position. I have a couple of questions so that I may have some sense of where DFO and Justice are coming from on these issues. On page 1, it states that, in general terms, a licence is a legal instrument that allows an activity. One would then presume that, in the absence of a licence, the activity is prohibited.

Ms. Grealis: We are looking at it as a fisheries management tool. If you look at it in that context —

Mr. Wappel: I am looking at legal principles and not how to manage the Aboriginal fishery, which may not even be capable of being managed, as we understand, because of various complexities. My question is a legal one. If the statement is that a licence is an instrument that allows an activity, then, in the absence of the licence, the activity is prohibited. Is that not correct?

Ms. Grealis: In general, that would probably be correct.

Mr. Wappel: That is good. I feel that I am making some progress. The flip side of that principle, in general, is the breach, or the doing, of that which is prohibited without a licence. That results in sanctions for doing those things. Is that right?

Ms. Grealis: Yes, it could result in that.

Mr. Wappel: Now, let us suppose that an Aboriginal organization is given a communal licence. How would the Aboriginal organization be charged if one of its sub-entities breached the terms of the licence?

Ms. Grealis: Basically, our position would be not necessarily to jump to charging the Aboriginal organization. In our view, the Fisheries Act does not preclude that.

Mr. Wappel: It is not precluded, but, as a management tool, you would not do it. You would go down the line to the person who actually broke the law.

Ms. Grealis: Yes, usually, because the licence is for the benefit of the Aboriginal organization as a community. If the other individuals fishing under the licence are compliant, it is our view that you may encourage greater compliance by allowing those who follow the rules to continue to follow the rules, and those who do not follow the rules to be sanctioned.

Mr. Wappel: Without saying so, let us assume that that is correct. Would that principle therefore apply to corporations?

Ms. Grealis: I could not tell you how many times we have gone after the individuals or after the corporate entity, or both. You are focused on the regulations and part of them help to implement two important policies for the Department of Fisheries and Oceans: The Aboriginal Fisheries Strategy and the Marshall Response Initiative. They are part of the same implementation plan. Therefore, the objectives with the communal licence might be something more than simply an economic opportunity, which could be with a corporation.

Mr. Wappel: I understand this. Again, I am trying to talk about legal principles. If a corporation with 15,000 shareholders has 10 boats in its fleet and one captain breaches the terms of the licence that the corporation has been given, from my understanding of your general velocity, the corporation should not be charged. Why harm the other nine captains and their crews and the 10,000 shareholders? It should be only the captain of the ship and, presumably, the crew of that particular vessel who should be charged, notwithstanding that the licence is in the name of the corporation. Is that the logical extension of what you have been talking about?

Ms. Grealis: I think that might be so but I do not know how the charging is done. I do not know how many times we would charge the corporate entity versus the individuals. I expect that sometimes it is done one way and sometimes it is done the other way, depending on the circumstances.

Mr. Wappel: I certainly do not know about that.

Ms. Green: If I may, in general, that would be the principle. The facts would speak for themselves.

This is why we are having difficulty responding to your question, because, from a principle base, that is the logic and the approach in terms of the compliance and enforcement strategies that I have been discussing, as I have been told by some of my regional staff. As the facts are really ones that dictate the approach, I find it difficult to speak in principles versus the facts of the case when we are moving to charge.

Mr. Wappel: I understand. You cited the case of St. Regis. I know that was an employment case, but if there was mens rea by the governing council of the band, to knowingly breach the law, one would presume that the band would be charged. One would therefore presume that, notwithstanding St. Regis, the band would argue that it is not a legal entity and cannot be charged.

Ms. Green: It is in the same way that corporations, when the facts of the case say that they were the ones making the decisions and committing the deliberate breach, would be examined. In that way, we would have to look at the facts of the case, whether it was the individual who was actually fishing or the band that had deliberately set out to do something. It would be based on the facts of the case.

Mr. Wappel: I will not go on too long, Mr. Chairman. On page 6, I presume the last paragraph is the classic submission one usually makes. It is the position that there is no subdelegation, but should it be that there is subdelegation, it is our position that that subdelegation is allowed. That is it, in a nutshell. It is a plan A, plan B, either- way-we-are-right, kind of submission. There is nothing wrong with that; lawyers do it all the time. However, it may not be right. Just so I understand it, plan A and plan B, either way we are right?

Ms. Grealis: Either way, the authority is there.

Mr. Wappel: That is fair.

Finally, at the top of that page, you say, while the ability of an Aboriginal organization to designate depends on when the minister has designated, it is the Governor in Council, and not the minister who specifies the circumstances. I think Mr. Lee was in and around this area. You say the Governor in Council provides the authority in certain circumstances. Is that right?

Ms. Grealis: The Governor in Council has provided for the authority in basically all circumstances. They have said when the minister can do it and when the organizations can do it.

Mr. Wappel: The position is that the Governor in Council has said that the minister can do it, and if the minister does not do it, we do it.

Ms. Grealis: They have set out, in (3) and (4), the organizations that can do it.

Mr. Wappel: The organizations that can do it?

Ms. Grealis: The Aboriginal organizations can designate, under (3) and (4), if there has been a licence issued and the minister has not done so.

Mr. Wappel: The idea is that the Governor in Council says, we will let the minister designate, but if he does not, we will blanket-state that, under these conditions, Aboriginal organizations can do it. Am I synthesizing what you are saying correctly?

Ms. Grealis: Yes.


Mr. Farrah: As we can see, the department and the committee always seems to be of a different view. I can tell you that the department is sensitive to the situation. When departmental representatives appeared before the committee last year, I think they showed that they were mindful of the arguments that had been put forward and were keen to reconcile the two opposing positions.

As such, the minister expressed a desire to introduce amendments to the Fisheries Act in the House of Commons and to do so as quickly as possible. I cannot presume to know what Cabinet will decide and it is not my intention to presume anything.

The minister has initiated a process within the department with a view to determining which types of amendments might be put forward.

Can you confirm that the Minister has indeed launched a constructive, positive process with a view to introducing in the very near future amendments to the Fisheries Act?

Is it your opinion that this process could break the existing impasse and perhaps respect the committee's wishes? Is that in fact the department's intention? I would very much like to hear your views on the subject.

Ms. Green: I must admit that the process for legislative change requires Cabinet approval. A consultation is also under way with stakeholders, the provinces and fishers.

The Minister asked us to get the process moving forward, but I have no information and I cannot give you any details. We were asked to set the wheels in motion, but that is all I can tell you at this time.

Mr. Farrah: I would like to let committee members know that the Minister is very much attuned to the situation. If possible, we could come to an agreement on amending this provision of the Fisheries Act.

The interesting thing about this whole process is the responsibility held by the respective committees of both Houses. Once the legislative amendment has been introduced, this committee will proceed with a clause-by-clause study of the bill with a view to proposing amendments that might enhance the proposed legislation.

I simply wanted to clarify that fact for the benefit of the committee this morning and to illustrate to you that the minister is willing to introduce at the earliest opportunity an amendment to the Fisheries Act to break this long- standing impasse.

Senator Ringuette: Since I am new to this committee, I have a question of a purely administrative nature for you. Since this matter was first brought to the committee's attention, how much time and money has the department invested in an effort to respond to the committee's questions?

Ms. Green: I really cannot answer that question. If you like, we can forward a more detailed response to you. Personally, I have spent a great deal of time on this file. I am the Director of Legislative and Regulatory Affairs. I am the official assigned to the statutory instruments committee. If you want an answer, we will have to submit one to you in writing.

Senator Riguette: A written response would be appreciated.


Mr. Cummins: I had a couple of questions I was going to ask. I know that Senator Nolin has other matters.

I do not see any change in the arguments that have been presented this morning by the department, so perhaps I will forego my original question about an issue over which we had difficulty with Mr. Cody last April, about this whole licensing issue raised by Mr. Wappel and Mr. Lee. We might as well move on. I will withhold my questions and maybe the committee could get into a discussion.

The Joint Chairman (Mr. Grewal): Anyone else?

Mr. Lee: A quick question to Ms. Grealis. You mentioned the Beaulieu decision. Are you aware of any instance where an Indian band has been charged with an offence?

Ms. Grealis: I cannot think of many. As I am sure you are aware, in the Beaulieu case in the first instance, the band was charged as the directing mind of a corporation. In the appeal, the court said it was the corporation and not the band, and that the chief, who was Mr. Beaulieu, were responsible. The court left open the question of whether bands can be charged, and basically indicated it was pleased it did not have to make the decision on that point.

I cannot think of other cases from DFO's perspective where we have charged the band, but then I cannot say that we have not.

Mr. Lee: I think the judge in that case had indicated that he was not aware of any other case of an Indian band being charged criminally or quasi-criminally, and I was wondering if you are aware of any, and apparently you are not.

Ms. Grealis: Not under the Fisheries Act, no.

Mr. Lee: You are not aware of any under any legislation? If you are, just say you are. If you are not, it is okay.

Ms. Grealis: I am not aware of any. I am thinking the labour code ones were probably not quasi-criminal.

Mr. Lee: Mr. Farrah has mentioned new legislation. Are you working on the new legislation mentioned by Mr. Farrah? Ms. Green, are you working on the new legislation?

Ms. Green: We have been asked by the minister to initiate the process.

Mr. Lee: Are you?

Ms. Green: In my position as director of legislative affairs, I am working on it. As I said, I have been asked. I am working as a team, so I use the plural.

Mr. Lee: Is it fair to say that the new legislation will attempt to delete what we call the subdelegation or explicitly authorize it in the legislation? Is it fair for me to suggest that is one of the objectives of this exercise of developing new legislation?

Ms. Green: I personally cannot speak for what is in the minister's mind.

Mr. Lee: Let us call the minister. If you are working on it, you must have an idea what is being drafted.

Ms. Green: The general process is that we develop options and put them forward for cabinet approval. We must consult. It is at the starting process, and I do not know what will be in it.

Mr. Lee: You do not know what is going on?

The Joint Chairman (Mr. Grewal): Mr. Lee.

Mr. Lee: Am I being a little tough on this witness? I have asked you if the two objectives I have mentioned are included in your objectives as you draft the new legislation.

Ms. Green: Clearly, all the problems on the table, we will be looking at. However, what decisions are coming out, I cannot tell because they have not been made.

Mr. Lee: Thank you very much. I did not ask you for the minister's decision. I asked you if this was the objective.

Ms. Green: All the problems that have been raised will be put on the table for consideration.

Mr. Lee: Including the two I mentioned?

Ms. Green: They are part of them, yes.

Mr. Lee: They are part of it.

Ms. Green: They are part of the problems raised. This committee has raised issues. Am I missing something?

The Joint Chairman (Mr. Grewal): Mr. Lee, the general counsel should like to add something to assist you in your point.

Mr. Lee: Thank you.

Mr. François-R. Bernier, General Counsel to the Committee: While I do not have a direct answer to your question, Mr. Lee, this might help you.

You will recall that we indicated to the committee before that Bill C-62, the previous version of a revision of the Fisheries Act, if it had been enacted, would have provided authority for this kind of scheme. As I say, this is not a direct answer, but it does suggest that certainly when it prepared Bill C-60, the department was going in a direction through this use of administrative agreements that would have provided a sound legal basis for this kind of scheme.

Mr. Lee: The reason I am asking should be pretty obvious. If the department has put in place a process to deal with the problem we have raised, I would think that committee members would like to hear that directly. It has happened on many occasions that departments, ministers, have given this committee undertakings to do specific things, to change legislation, to change regulations, and we have accepted those in our work as having essentially accomplished the objectives we seek. If that is what is happening in the department, I do not understand why all the oblique terminology here. Yes, we are working on something. Yes, it might include a number of things. Why would you not be prepared to say, yes, we are developing legislation that will address the issues you have raised with us? Why can you not say that?

Ms. Green: With regard to the government response where there has been a commitment by the government to make amendments to the Fisheries Act to address the concerns of the committee, absolutely, those are on the table. Where the process has not been finalized, I am unable to say that they will absolutely address them. They are on the table for consideration, and the process will go forward.

Mr. Lee: If you can give us something concrete, fine. If not, maybe the committee will feel it has to do something more concrete. Maybe we should move to the House and let the house decide on a disallowance. If the department is saying we will address this in the new legislation that we are developing now, that is great. I would love to hear that.

If you want to tell me you cannot, and it is a big secret, that is fine.

I should like to raise one other issue, Mr. Chairman, if I can.

On the issue of the legal status of Aboriginal organizations, I take note of Bill C-7 before the House of Commons somewhere in the pipeline that actually crystallizes the legal status of Indian bands, Indian organizations. In my view, and I stand corrected if I am wrong, but if Indian bands did have this recognized legal status, if these changes to the Indian Act which are in the enactment pipeline were in place now, and if they were incorporated by reference in the Indian Act statute or the regulations, it could do away with the problem of the status of these Aboriginal organizations. They would actually have explicit status. I do not know whether you or the department has taken note of that.

I am looking at Bill C-7, an act respecting the administration and accountability of Indian bands. In section 15, it says:

A band has the legal capacity, rights, powers and privileges of a natural person, including the capacity to

(b) acquire, hold and dispose of rights and interests in property;

Which would include a fishing licence, I presume.

Are you aware of that proposal to change the law in relation to Indian bands?

Ms. Green: Yes, we are. As far as I am aware, that particular initiative is before the committee, and the committee is still studying it. In our process of moving forward with providing advice to the minister, we will be looking at where that is. It is still hypothetical. You asked me if it was in place, and that is the decision of Parliament as it moves through the parliamentary process. I will definitely be watching with interest as it moves through.

Mr. Wappel: Mr. Bernier, our counsel, in an attempt to be helpful, pointed out, Ms. Green, that if Bill C-62, had passed, what we are talking about would have been statutorily authorized. Therefore, we would not even be having this discussion. Is there some reason to assume that the department's view about the philosophy of Bill C-62 has changed? Is it the kind of thing you will be putting forward to the minister?

Ms. Green: It is one of the options actively under consideration and analytically being looked. The problem that we are having is that there have been changes in the fishing industry and we are in the analytical phase. Yes, that is one of the inputs into the analysis. I am sorry; I am finding this very difficult.

Mr. Wappel: Believe me, so are we.

Ms. Green: I am sure, and I really do apologize. The process requires analysis and consultation, and we have not got to the point where there is anything that anyone can tell you.

Yes, definitely Bill C-62 is part of the mix. The environment has to be assessed as to how it is has changed, because it has changed, including the comments we have received from this committee. They will all be put through the analytical process to provide advice to the legislative process.

Mr. Cummins: Bill C-62 would have allowed the government's objectives in this regard to go ahead. It was rejected in large part because it would have allowed the minister to engage in secret arrangements with other corporate entities, as well. That was the fundamental underlying problem, so although it would have allowed this particular process to proceed, it was found sadly lacking in other ways. It did not clearly address this issue in the way that we wanted it addressed.

However, talking about that, we are getting away from the key objective here. We should not be concerned with policy decisions. Our concern here is strictly with legality.

The committee has found this issue to be of concern. Again, I think it is evident that the representatives of the department do not understand the difference between licensing a commercial entity and licensing an Indian band.

If the minister licences a commercial vessel and that vessel is owned by a corporation, the corporation cannot name anyone from the large body of Canadian citizens and say, "You can go fishing.'' The only people that they can designate to go fishing on that vessel are people who the minister has already designated as commercial fishermen.

The pool of people eligible to fish on that vessel is people designated by the minister. The minister designates in the commercial fishery both the vessels and the people who participate.

There is absolutely no parallel, as the government still seems to want us to believe that there is. There is not. They did not address that issue last April. In fact, the senior counsel, as you recall, was unable to identify a personal commercial fishing licence, and they still do not understand that issue. I do not think we are any further ahead here.

The Joint Chairman (Mr. Grewal): Any comment from the witnesses?

Ms. Green: All the issues are being considered. I cannot answer the final version of where they are going.


Mr. Farrah: I have a comment in response to my colleague Mr. Lee. The process that has been initiated comes on the heels of discussions in committee over a period of a number of years. The Minister is willing to assume his legislative responsibilities and the views expressed during the course of these discussions will help him arrive at a decision as far as amending the legislation is concerned. The committee has made a very useful contribution to the process. Members have worked hard and showed considerable patience. The Minister demonstrated his goodwill last year by amending the regulations. In so far as possible, your views will be taken into account in the process of amending the Fisheries Act.


The Joint Chairman (Mr. Grewal): Any other comments? Let me reiterate what some of the members have stated about the situation with respect to these issues. Sub-delegation under the amended regulation is exactly the same as it was under the previous regulations. The unlawful subdelegation of power continues.

Sub-delegation is still unlawful, we believe. Regulations maintain the subdelegation, and government does not intend to accept the joint committee's objection to the subdelegation issue. Also, the legislation has no impact on the issue before the joint committee.

Having said that, let me ask a question of the witnesses. You can say "yes'' or "no'' either individually or collectively. The government continues to view that the ACFLR is sound and properly authorized by the Fisheries Act. Is that your position?

Ms. Green: Yes.

The Joint Chairman (Mr. Grewal): Is it also true that the government is of the view that the Minister of Fisheries and Oceans can issue a licence to an Aboriginal organization?

Ms. Green: Yes.

The Joint Chairman (Mr. Grewal): Also, is it true that the government continues to believe that section 7 of the ACFLR is valid?

Ms. Green: The commitment of the government was to amend that section at the next appropriate opportunity.

The Joint Chairman (Mr. Grewal): Do you still believe it is valid?

Ms. Green: Yes.

The Joint Chairman (Mr. Grewal): Is it true that the government continues to be of the view that the ACFLR are sound and properly authorized by the Fisheries Act?

Ms. Green: Yes.

The Joint Chairman (Mr. Grewal): That is your position, which has not changed. I appreciate the explanation of your position as well as your answering the questions to the members of this committee. Thank you very much for coming.

We will excuse the witnesses, and we will have a brief discussion if members desire. If the witnesses want to stay and listen, that is their discretion, they can stay. We will not ask them further questions.

Can we have a discussion among ourselves? Is there any appetite for that?

There is no significant input so far from the previous position that we heard. Counsel, do you want to conclude or add something?

Mr. Bernier: It would be going over the same ground that has been gone over a number of times. The committee was engaged in a process. The minister apparently felt that the amendments he made in June of 2002 had some relevance in terms of whether the committee proceeded with the report it had before it. He requested that departmental officials be heard. The committee has accepted. Departmental officials have been heard. Admittedly from a quick consult of the brief they presented, I think that it is quite clear that the June 2002 amendments did not have any significance in terms of the report the committee was prepared to make.

The position of the department was stated in the response to the sixth report of the standing joint committee and it is on that basis, having considered that response, as well as the June 2002 amendments, that the committee had decided to request counsel to draft the disallowance report.

Mr. Lee: This may be new ground but I will try to recap exactly what we are dealing with. Counsel should correct me if I am wrong.

The statute gives the Governor in Council the authority to select someone who can issue a fishing licence. The concept that we are dealing with is not the issuance of the fishing licence but rather it is the authority to choose someone who can issue a fishing licence. Forget about issuing fishing licences; the minister can issue fishing licences if he chooses. The concept is the selection of someone who can issue a fishing licence. The Governor in Council, under the statute, is the body to which that authority has been given.

Under the regulations, the Governor in Council has purported to give that authority to the minister, not the authority to issue a fishing licence but the authority to select someone who can issue a fishing licence. That is what we are saying is ultra vires/illegal/not authorized.

Under these regulations, the Governor in Council gives that authority to the minister but if the minister does not use that authority, then he or she can let the Aboriginal organization exercise the authority.

Mr. Wappel: Under the new proposal, is it not the case that the Governor in Council authorizes, in the absence of the minister exercising his authority, the Indian Band to exercise the authority?

Mr. Bernier: That is correct.

Mr. Wappel: Under the new regulations, is that correct? How is that?

Mr. Bernier: As Ms. Grealis indicated, and she did use exactly those words because I noted them when she spoke them, the new regulation directly authorized, or provided for, the issue of fishing licences by Aboriginal organizations in certain circumstances. If you look at the regulation, there is, in fact, only one circumstance. That circumstance is that the minister has chosen, in an exercise of discretion, not to issue designations. We have interposed what, at first glance, appears to be a proper exercise of the section 43(f) regulation-making authority — the Governor in Council saying that you can issue licences and these Aboriginal organizations can issue licences. In that case, there would be no problem. However, things are not as they appear to be on the face of the regulations because they provide that that authority of Aboriginal organizations turns on the minister's exercise of his discretion to either designate himself or to not designate. In an indirect way, we still find that it is the minister who makes the decision as to which Aboriginal organization will be authorized to issue designations, through that interposed discretion.

Mr. Lee: I will continue my previous comments on the legalities. If an Aboriginal organization were a legal entity, then the Aboriginal organization would have the licence and they would not have to designate. They would simply have the licence and they would use it. Would that close the loop? Would that, in a sense, stop this further delegation? Suppose that the Aboriginal organization was a legal entity. Under the regulations, the thing that is being delegated would mutate — it would no longer be the authority to choose someone, to decide who would fish. There would be only a licence, rather than the authority to choose someone to fish. If the Aboriginal organization were a legal entity, there would be no need to go through this artifice of the designation and filling in the blanks on the licence.

Mr. Bernier: There are two points to be made in that regard, Mr. Lee. I will not go over what is explained in the notes that we distributed to the committee. Whether Indian bands or band councils have the capacity of a person in law is not directly relevant to the issue of subdelegation, which stands, irrespective of the status of band councils or Indian bands.

The second important point, which we tend to lose track of, is that the definition of "Aboriginal organization'' in these regulations covers far more than Indian bands or Indian band councils. We can look at Bill C-7 and we can look at the case law that Ms. Grealis referred to, both of which only go to the issue of the personality of an Indian band or an Indian band council. The definition of "Aboriginal organization'' in these regulations is far broader than that and it includes, potentially, any number of non-corporate entities that are not Indian bands and that are not Indian band councils. From that point of view, the question of whether Indian bands have personalities, hardly removes the problem. Even if it were conceded, one is still dealing with a large number of non-corporate entities that do not have legal personality.

Mr. Wappel: From my perspective, we are getting down to the nub of the issue. In the draft second report, which I refer counsel to so he can help me out, on page 6, the second paragraph, beginning with "The amendments registered,'' is exactly the paragraph that you are talking about, Mr. Bernier. Is it not?

Mr. Bernier: Yes.

Mr. Wappel: In that paragraph, it states:

In reality then, it is still the Minister rather than the Governor in Council who decides which aboriginal organizations will be authorized to issue designations, i.e. fishing licences.

Your basis for that statement is, if the minister were to designate the Aboriginal organization, then that would be the minister's decision that that Aboriginal organization could issue a licence. In the absence of the minister doing that, then the Aboriginal organization could do it but, the Aboriginal organization, under these new regulations, cannot do it in and of itself. Rather, it must wait for the minister to designate or to not designate that organization. Is that right?

Mr. Bernier: The Aboriginal organization has to wait until the minister decides whether he will designate the people authorized to fish.

Mr. Wappel: If he does that, they will receive the licence; if he does not, the Aboriginal organization may issue the licence. Either way, the organization gets the licence.

Mr. Bernier: It relates to the condition at the beginning of sections 4(3) and 4(4). If the minister does not designate the persons, an Aboriginal organization is authorized to issue designation — if the minister decides not to. That is the minister's discretion. When the minister exercises that discretion, indirectly the minister is deciding whether the Aboriginal organization may or may not issue designation.

Mr. Wappel: Indirectly, the minister, by exercising or not exercising his discretion, is deciding whether there is subdelegation. Is that what you are saying?

Mr. Bernier: No, Mr. Wappel. If you ask the question, When can an Aboriginal organization issue designations?'' the answer should be, "Because the Governor in Council has said so in this legal text.''

Here, when you ask that question, you cannot answer in the way I have just suggested. Instead of answering, "when the Governor in Council has said they can,'' you have to answer, "when the minister decides that he will not do it himself.'' That is where the subdelegation remains. You cannot interpose that discretion between the Governor in Council and the persons designated to issue fishing licences. In effect, the power to designate who can issue licences has been delegated to the minister.

Mr. Wappel: That is the nub of this whole thing, because our witnesses do not agree about your opinion of that nuance. The question is whether we do, and, if we do, then we have to disagree with the witnesses. It is that simple, is it not? It is also that complex at the same time.

Mr. Bernier: Yes.

Mr. Wappel: I want to be sure I understand what the witnesses said.


Senator Chaput: I want to be certain that I have a clear understanding of these proceedings. As I see it, the problem lies in the fact that in your opinion, delegating this authority to the minister is illegal. However, the department claims that this is legal. You are saying that the minister should not have this authority.

According to the department, the existing legislation authorizes this action, but according to the committee, the action is not legal. The first solution would be to amend the legislation to take this authority away from the minister. The second solution would be to abide by the existing legislation. Is my understanding of the situation clear? Maybe I am being a little direct, but I want to be certain that this is in fact the issue in dispute.


The Joint Chairman (Mr. Grewal): That is a fair statement, senator. The members have already mulled over the draft secondary report. Is there any further discussion or reflection based on the witnesses that we have heard? Are there any changes or amendments on the draft second report?

Mr. Lee: I would like to ask Mr. Farrah, being the parliamentary secretary, to clarify the government's intentions in terms of drafting new legislation. I think we got something from the witnesses, but it was like pulling trout teeth. Are you able to clarify where the government is heading in terms of new legislation?


Mr. Farrah: I cannot table to the committee at this time the bill or the proposed amendments to the Fisheries Act, since these have not yet been approved by cabinet. That would be ab irresponsible move on my part.

The minister greatly respects the work that this committee has been doing for a number of years now. However, we are also realistic and we realize that opinion on the subject is still divided.

Let me say again to you that the minister wants to put forward amendments to the Fisheries Act at the earliest opportunity. I cannot presume what cabinet's ultimate decision will be, but I believe it intends to bring these amendments forward during the current session, which would mean by the month of June. The decision will ultimately come from cabinet, but the minister does intend to move forward with the amendments, as he is very mindful of your concerns. I would be irresponsible of me to reveal to you proposed amendments to the bill at this time. The minister is aware of the situation and wants to take into account the issues that you have raised.


The Joint Chairman (Mr. Grewal): From this response, I understand the department is not ready yet.


Mr. Farrah: When you say the department is not ready to move forward at this time, that is not entirely correct. With all due respect, the minister intends to table these amendments during the current session. Therefore, you cannot claim that the minister is failing to take quick action on this matter.


The Joint Chairman (Mr. Grewal): Let us hear from the general counsel, even to address the question from Mr. Wappel.


Mr. Bernier: I would like to add something to my quick response to Senator Chaput. In my view, it is important for members to realize that the existing Fisheries Act grants sufficient powers to the Governor in Council to implement this type of program.

The problem lies in the fact that the recourse chosen for implementing the program has resulted in an illegal subdelegation of authority. This situation could be avoided, regulations could be made. There are at least two approaches that would not pose any kind of problem. The process retained is illegal, not the powers conferred.

Senator Ringuette: I am not a legal expert, but you have just told me that the way in which the bill is currently worded is not legal. Correct?

Mr. Bernier: That is not what I am saying. Let me revise my statement. I am saying that the existing legislation grants sufficient legal authority to the Governor in Council to implement the program. However, the approach set out in the regulations is not legal.


Mr. Cummins: There is nothing in any Speech from the Throne or other comment from the government that indicates they were thinking of rewriting the Fisheries Act. The rewriting of the Fisheries Act is a huge job in itself. Addressing the concerns of this committee on this bill is a much smaller task. The committee has been working on this issue now for about seven years. There was an inadequate response to the report to Parliament that was given last June. The minister gave an inadequate response. Last fall, there was another inadequate response. Today, we are led to believe that the government is prepared to deal with this smaller issue by doing something even larger, and that is writing a new Fisheries Act. That will not happen overnight. You cannot punch out a new Fisheries Act by the end of June. There will be a great deal of discussion in the fishing community, and if it has the flaws of Bill C-62, it may never come to fruition for the same reasons that Bill C-62 was withdrawn from the government agenda.

The issue is that government has been proceeding illegally, in the view of this committee. That was the finding of this committee in its report to Parliament. There is agreement that they have not addressed the concerns of the committee.

Certainly, to promise to rewrite the Fisheries Act is a response that is really over the top. It does not address the issue of the day but promises an even bigger reworking of the whole issue. I do not think that it is a reasonable response.

The Joint Chairman (Mr. Grewal): Are there any further comments? Correct me if I am wrong, but it is my understanding that members are not satisfied with the government's, or the department's, response today. We have the draft second report before us, which we have mulled over. I do not see any significant change. To reflect on what the department officials have said, what is the opinion of the members? Do members believe that the general counsel should come with the report, which we will then adopt at the next meeting? Is that the consensus around the table?

Mr. Lee: If the report were to go ahead, it would not need too many changes. It is, essentially, in the form to take it forward.

If the minister is indicating that there is a solution at hand to this problem, which most people see as simply technical but we regard as substantive because of the legal nature of our work, and if counsel sees ways to remedy the situation, even within the existing statute, I would not ordinarily want to disallow it.

I am picking up signals that there is a solution at hand. The government made an attempt with the amendments to the regulations to address the situation, albeit in an incomplete or ineffective way, from our point of view. There is certainly an ongoing process and there is an end game, whether we be disallowing in the meantime.

I suggest that we not actually move the report today but that the issue be flipped over to steering committees because there are a couple of more strategic things that we should be considering in our work this year. We could bring the report back to the next meeting. If we could have a steering committee meeting prior the next meeting, we could bring the report back to the next meeting on March 20.

The Joint Chairman (Mr. Grewal): Let us hear the other comments around the table.

Mr. Cummins: I am afraid that, if we put this off again, we will end up in the same position that we ended up in last year. We will be drawing closer to the fishing season and there will be insufficient time for the government to address our concerns.

It is now the end of February. When we asked that this draft be written before Christmas, the rationale was that the committee would act promptly in the New Year so that government would have plenty of time to respond to the concerns about the legality of the current regulations that were identified by the committee. You know, from the witnesses' comments this morning, that there has been no movement on that issue on the part of the department.

I am not sure what advantage there would be to sliding this off to a steering committee. In fact, I think it would be a great disadvantage because it would mean that the department would then assume that the committee is prepared to shrug this issue off again — to put it off as we always have done. It is a huge job to rewrite the Fisheries Act. It would not be as big a job for the department to simply address the concerns and accept the committee's findings. Our job is to be the ultimate arbiters of what is right and what is wrong in this legislation. That is not the department's job.

It is in everyone's best interests if we move ahead because, if we put it off, the signal to the department is that we are not prepared to address the issue.

If the committee decides a month from now or six weeks from now, then the government will have a much shorter timeframe in which to respond, in a real way, to the committee before the fishing season. It is far better to do it now, which was our original intention as stated before Christmas, as you will recall, Mr. Lee, when we asked for the report to be written. We should move ahead with it as it is.

Mr. Wappel: Mr. Chairman, it is clear that we are agonizing over this. It is also clear that we think that we are right. What should we do? I do not think it is fair for Mr. Cummins to suggest that Mr. Farrah suggested there would be a new Fisheries Act coming in June. I think what he said was that there would be amendments to the Fisheries Act. There is a difference between amendments to the Fisheries Act and a brand new Fisheries Act.

Let us understand what Mr. Farrah said. He said that the intention of the minister, who has listened carefully to this committee, is to do his best, subject to whatever cabinet decides, to bring forward amendments to the Fisheries Act. Some of those amendments may deal, we are led to conclude, with some of these things.

Let us just work through this to decide what we want to do. May I have Mr. Bernier's undivided attention because there will be a question for him or I may ask for his affirmation.

If we recommend disallowance, it is clear that the department will advise the minister that we are wrong. There would be a one-hour debate then in the House of Commons, on a Wednesday immediately after caucus from 1 p.m. to 2 p.m. on an extremely complex legal issue, which we, for months and months and months, have been agonizing over. Thereafter, the matter will be immediately put to a vote. Let us look at the politics of it. The department clearly will advise the minister that we are wrong. I do not think it takes a rocket scientist to figure out that the government will, therefore, support the minister, who will support his bureaucracy, and the government members will be asked to support the minister.

One cannot presume, but I doubt that something like this would be a so-called free vote. Where does that leave us? We could still say that we did our job and the house dumped us; or we could presume that two or three people who may speak in that one hour, other than the minister who would obviously have the opportunity to speak first and would argue against our motion, may be able to rally the 301 members sitting in front of their television sets listening to these legal arguments 45 minutes before they are required to vote; or we can try to come up with some other solution.

Do we want to force that kind of a result? If so, for what purpose? Will it accomplish our end, which is to try to change the regulations? No. If my scenario works out, the house will have confirmed by vote that the minister is right and we are wrong, no matter how you look at it.

Is there another way? Let me suggest one, just off the top of my head. Suppose that, rather than disallowance, we issue another report that states clearly that we disagree, that we still think the regulation is illegal, that we are still of the view that it should be disallowed, but that we have been led to believe that there may be movement by the minister within this session. In that way we are alerting the House of Commons of our continued opposition to these regulations in the form that they currently take and that we are prepared to revisit the issue if the government does not suggest some amendments within this session, or something to that effect. We would alert the House of our continued disagreement with the bureaucracy on this issue and yet give the minister some flexibility to try to bring something forward.

As I see it, the only other option is to do what Mr. Cummins suggests, which I do not take issue with his sincerity on. That is to recommend disallowance and then go head to head with a minister who clearly, by convention, will have to back his bureaucrats and disagree with us. The bureaucrats, in all good conscience, believe that what they are arguing is correct.

Senator Nolin: We have to contemplate the inability of this committee to do something.

Mr. Wappel: What would you like to do, senator?

Senator Nolin: Look, it has been seven years and it is not very complicated.


The department has been serving up the same arguments for seven years. The fact of sending this report to the House and of recommending disallowance does not in any way run counter to the committee's interests.

The decision as to whether or not to amend the regulations will rest with the government. And it will be up to government members to convince the government to do just that. Do not call upon the committee to do this kind of professional work. Do not call on a legal expert to pass judgment on a host of reports and weigh serious information in an attempt to devise a political solution.

We could have accomplished this seven years ago. We have other things to do at 8:30 on a Thursday morning than to be told that we need a political solution. We need to be more serious about dealing with this, because we do have a problem. If the minister decides to put forward some legislative amendments, then so much the better for us.

This report will merely compel them to move a little more quickly. That is what we want. Our counsel advises us that amendments may not even be necessary in order to convey the department's intentions. An amendment will be introduced to ensure that the subdelegation of powers is clearly authorized. All the better, as this will get matters moving along. Good heavens, we cannot ease up on the pretext that we need a political solution. We have a tool and we should use it.


The Joint Chairman (Mr. Grewal): Thank you. It being almost 10:30, we need to end this discussion soon. For many years, committee members wanted to find a solution other than disallowance, so we have spent a long time on that. We have the draft report. Our next meeting is on March 20. Before that, there is a steering committee meeting. It would be good to develop a consensus now. If we do not have a consensus now, we will have to resolve the issue as soon as possible so that the committee can move on to other issues. We have spent enough of our resources on this issue.


Mr. Farrah: Very briefly, in answer to Senator Nolin's question, I can appreciate that a seven-year delay is frustrating and that a great deal of work has been done on this file.

You must understand, however, that putting forward amendments in the House of Commons is not tantamount to seeking a political solution.

Senator Nolin: I agree with you.

Mr. Farrah: It is in keeping with the legislative process whereby questions can be put to MPs and senators. We need to realize that this issue concerns us and is important to us, as members of Parliament and as elected representatives. I cannot put my head in the sand and claim that we have no responsibility to bear for the last six or seven years, as far as DFO is concerned, but we have come to a point where the minister has promised to bring in amendments to the Fisheries Act sometime before the session ends, and this is due to the committee's actions. You may be right in saying that we should have acted earlier. Nevertheless, credit must be given to the senators and members of this committee who have worked with dogged determination over the years. The process may not have moved forward fast enough, but owing to your efforts, we have made it this far.

I want you to know that the Minister of Fisheries has advised the Leader of the Government in the House of his intention of tabling amendments. This confirms the message conveyed to the Leader that he allow us enough time to examine the proposed amendments, an equally important consideration.

I would like to focus briefly on what Mr. Cummins said earlier, namely that we had not made an headway and that the situation had not evolved at all.

I disagree with his contention. We have a firm commitment from the minister that amendments will be introduced. The problem is one a trust and I can assure you that because of your committee's efforts, changes will be forthcoming very shortly. You can take full credit for that.


Mr. Cummins: I want to respond to Mr. Wappel's suggestion about what would happen if the committee issued its report. He is aware, more than I am, and more than most of us here, that when the legislation was introduced to create this committee in the 1980s the government of the day said that it would abide by the committee's decisions. I think it is only reasonable that they do because, after all, that is the mandate this committee has been charged with, to look strictly at the legality. I think the committee has been very patient.

There are more than 350 people charged with violating and protesting these laws. There were more charged last summer. There will be more, I am sure. It brings the whole issue of the administration of government into disrepute when the government continues to operate outside the law as it has.

If the government intends to bring in legislation to correct the problems that we have identified, it will do so, but I think the committee must move ahead with disallowance at this point to show that it is serious about its business. I am convinced that if the committee does move ahead with disallowance, the government will recognize the authority of the committee and proceed with haste to make the changes that are necessary.

For us to shuffle this off the table again will not help matters. It just adds to the confusion and shows that there is a lack of will here. It is only further reason for the department to shuffle along and take its own sweet time.

I sincerely believe that we must move ahead with disallowance at this point.

The Joint Chairman (Mr. Grewal): I personally see no solution in the department's report to the committee.

The draft report before us may reflect some of the key points we heard from the witnesses today. I propose to committee members that we carry this report to the steering committee. It will not delay any further because March 20 is the next meeting when we have to accept this report.

Senator Nolin: That is only one month?

The Joint Chairman (Mr. Grewal): I know that is long enough for some members but, at the same time, by courtesy we need to reflect on what we heard from the department officials today. I am still open to accepting this report today and moving forward. I am prepared to do that. However, since seven years have passed, the steering committee will mull over this report and see if there are any changes reflected from today's discussion. Then, on March 20, we will expect a motion to deal with this report. Is that fair enough or not?

Mr. Cummins: That is the exact position that we took before Christmas. We wanted the draft report done so that the committee could deal with it early, so that the government would have the greatest amount of time to address this issue before the summer. If you put it off for another month, there will be negotiations ongoing and starting for various agreements based on these regulations. We will be reluctant to interrupt that again. I simply do not think that is fair. What is the purpose of going to the steering committee? What is gained by that?

Senator Nolin: Maybe in a month we will have pre-draft legislation, some kind of option of legislation, for us to read. That will buy roughly 40 days and maybe in another 40 days we will have a final draft of legislation. You know what? Next Christmas we will be at it again. There will be a pre-cabinet look at the legislation.

Mr. Cummins: If the government is sincere about drafting legislation, disallowance will not change that. The government will do it. The committee, for its own well being, for its own dignity, must proceed. I cannot see how a committee can shuffle this off again. The optics are really devastating. What is the point of all this discussion? Before Christmas, there was agreement. Get this done. Have this disallowance report written over the holiday so we can act on it early in the New Year to give the government maximum time to address it. What has changed since then?

The Joint Chairman (Mr. Grewal): Nothing has changed.

Mr. Cummins: Why are we not moving?

The Joint Chairman (Mr. Grewal): I do not have any problem moving ahead. I thought that was one of the proposals coming. We heard the two members. I do not hear any member saying that we are not concurring with the contents of the report. We have mulled over this report time and again. We are reaching a point where the frustration is seen around the table. If members are in consensus, we can move ahead with this.

I do not take a position myself but I want members to quickly develop a consensus. I do not see any member saying we should not go ahead with disallowance.

Mr. Cummins: If it is going to take a motion, then I move that we move ahead with the disallowance. I think it is important.

The Joint Chairman (Mr. Grewal): Before we reach the motion, let us see if there is a consensus to go ahead with the disallowance report?

Mr. Lee: Not from my point of view.

Mr. Cummins: Why?

Senator Nolin: What is your question?

The Joint Chairman (Mr. Grewal): Is there consensus to move for disallowance?

Senator Nolin: You are asking for consensus? I thought you were asking for the content.

The Joint Chairman (Mr. Grewal): No, the content has been debated and we did not have anything else to add to the report.

Senator Nolin: We are happy with the report but there is no consensus to adopt it? Is that the point?

The Joint Chairman (Mr. Grewal): That is what I am thinking. If there is consensus, we will go ahead with the report. I am trying to build a consensus here.

Mr. Lee: Mr. Chairman, I do not think there is consensus. If you listen to the views around the table, there is not yet a consensus to proceed at this time. Your suggestion to bring it back to the next meeting following a steering committee is a good one. I have made that point.

Mr. Cummins: Would the member agree to a straw poll that would not take it off the table, just to find if there is consensus?

Mr. Lee: It is in the Chair's hands.

The Joint Chairman (Mr. Grewal): Before that, let me ask the members, particularly Mr. Lee, would there be consensus at the next meeting? We have the report. We have everything. Can we have a promise that, after reflecting on the opinions of the witnesses at the steering committee, will there be a consensus at the next meeting to accept the report?

Mr. Lee: We are inching towards something and I do not mind inching towards anything. I am happy to tighten the noose incrementally.

The Joint Chairman (Mr. Grewal): We need to tighten up our own mandate on this report. I think there is no satisfaction.

Mr. Wappel?

Mr. Wappel: I have a headache, Mr. Chairman.

The Joint Chairman (Mr. Grewal): I know, like everyone else.

Since we do not have a consensus, what do we do next?

Mr. Lee, can we have a consensus at the next meeting?

Mr. Lee: I do not know what the consensus will be at the next meeting but the suggestion was that this matter be brought back on the agenda of the next meeting. Members are free to move whatever they wish to move or to indicate, to talk among themselves before then, but I think it should come up at the steering committee. There are other issues related and unrelated to this that the steering committee should discuss. I do not think that would be unhelpful at all. Something else may mature from the government. I would not mind having something crystallized from the point of view of the government, but if they cannot do it, that is a problem they will have to live with.

The Joint Chairman (Mr. Grewal): Members, this is a non-partisan committee. We have built consensus on a disallowance report always in the past and this time as well. I see that we are tending towards building a consensus. I am hopeful that, at the next meeting, we will have consensus built. Then we will go ahead as a team and present this report in the house. Let us bear with having one more meeting. At subcommittee, some issues which counsel has explained to me must be addressed. At the steering committee, there are particular issues that we can discuss that we do not want to discuss in a meeting open for everyone. After we deal with those issues, we will again address this report. I am confident we will have consensus at the next meeting. Is that a fair comment?

Mr. Cummins: If we are not prepared to move with the disallowance, my question is why would any department pay any heed to what this committee says or does? It is obvious that this committee is not prepared to stick to the legality of the issue. The committee is too taken up with the politics of the matter. It is not doing the job it was mandated to do. I see no reason why any department of this government would heed any suggestions by this committee if we were not prepared to move ahead with disallowance. We have put this thing off and put it off until it defies reason.

The Joint Chairman (Mr. Grewal): I hear you. As a courtesy, we must reflect on some of the points that we heard from the witnesses. That was the purpose of hearing the witnesses today. We heard them. We had a fair discussion on some of the points that were raised. We will reflect on the report so that we can act as a team when we reflect our concerns. We will discuss these issues at steering committee and thereafter on March 20. I am confident that we will have consensus built up on this issue.

Mr. Lee: Thank you.

The Joint Chairman (Mr. Grewal): The meeting is adjourned.

The committee adjourned.