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The Defendants, Richard Bouzan and George Nicoll intend to question the constitutional validity of The Fisheries Act, R.S.C., CF-14, S.1 as amended and Fishery General Regulations as they apply to catching of cod for personal consumption in Newfoundland and Labrador.

The question is to be argued on November 17. 2004 at 10:00 a.m. at Grand Bank, Newfoundland.

The following are the material facts giving rise to the constitutional question:

i)        On October 27. 1947 the Government of Canada proposed arrangements for the entry of Newfoundland into Confederation with Canada;

ii)       This proposal was debated by in the Dominion of Newfoundland by members of the public and by members of Newfoundland's National Convention resulting in a Referendum vote on June 3, 1948;

iii)      Neither side secured a majority;

iv)       A second vote was taken on July 22, 1948 and a majority voted to join Canada;

v)        Before proceeding to agree to formal Terms of Union with Canada, the Newfoundland Delegation posed certain questions lo the Government of Canada;

vi)      On December 1 1 , 1948 the Government of Canada formally responded with Statements on questions raised by the Newfoundland Delegation during the negotiations for the Union of Newfoundland with Canada;

vii)     The single largest issue contained in these statements relates to Fisheries and contains eleven (11) statements;

viii)    Historically the Dominion of Newfoundland had exercised jurisdiction over a three (3) mile territorial limit based upon the headland to headland rule. Statement xii (1) states that these territorial water will continue to apply notwithstanding that Canada, at the time exercised a twelve (12) mile limit And further, the Government of Canada undertook to amend its Fisheries Act, 1932 for this purpose. This amendment was enacted;

ix)       On February 18, 1949, on the advice of the Senate and I louse of Commons of Canada, His Majesty King George VI assented to an Act to approve the Terms of Union of Newfoundland with Canada;

x)        There are fifty (50) Terms contained in the terms of Union of
Newfoundland with Canada. Term twenty-two (22) deals with Fisheries and Fisheries Laws and conveys certain powers and jurisdiction to Canada;

xi)       Term twenty-two (22) defines Fisheries Laws to be as follows:
a)       Newfoundland Act No. 11 of 1936 entitled An Act for the Creation of the Newfoundland Fisheries Board;
b)       Newfoundland Act No, 14 of 1935 entitled An Act to Prevent the Export of Fish Without License;
c)       Newfoundland Act No. 32 of 1936 entitled An Act to Amend the Newfoundland Fisheries Board Act (No. 11 of 1936);
d)       Newfoundland Act No. 37 of 1938 entitled An Act to Further Amend the Newfoundland Fisheries Board Act, 1936;
c)       Newfoundland Act No. 10 of 1942 entitled An Act Respecting Permits for the Exportation of Salt Fish;
f)        Newfoundland Act No. 39 of 1943 entitled An Act Further to Amend the Newfoundland Fisheries Board Act, 1936;
g)       Newfoundland Act No. 16 of 1944 entitled An Act Further to Amend the Newfoundland Fisheries Board Acts, 1936-38; and
h)       Newfoundland Act No. 42 of 1944 entitled An Act Further to amend the Newfoundland Fisheries Board Act, 1936; In so far as they related to the export marketing of salted fish from Newfoundland to other countries or to any provinces of Canada;

xii)     In furtherance of its continued jurisdiction to regulate fisheries, shortly after entering into Union with Canada, the Province of Newfoundland enacted An Act Respecting the Department of fisheries and Co-operatives. This Act provided for the appointment of a Minister of Fisheries and Cooperatives;

xiii)     The duties, powers and functions of the Minister extended to:
a)        Protecting, conserving and regulating fisheries and insisting fisheries and the fishing industry generally.

xiv)     Traditionally fish, and in particular cod fish has been in such abundance that Newfoundlanders and Labradorians have enjoyed an unregulated fishery for personal consumption;

xv)      Fish, whether caught and eaten fresh, or frozen, or salted and dried has been an important staple in the diet of Newfoundlanders and Labradorians;

xvi)     Even the Fisheries l^laws referred to in the Terms of Union, as adopted by Canada provides for the unregulated export of small quantities of salt fish. Act 10 of 1942 permits the export of up to two (2) quintals of salt fish without a permit (paragraph 2). The clear inference is that small quantities of fish are for personal consumption and unregulated;

xv ii)    Over the past few decades as a result of overfishing due to the gross
mismanagement of the Atlantic Fishery by the Government of Canada as represented by the Department of Fisheries and Oceans, Canada, there has been a dramatic decline in fish stocks.

xviii)   In order to assist the recovery of the fish stocks Canada has closed the commercial fishery completely in many areas, has restricted it in other areas and has imposed many regulations;

xix)     In so doing they have purported to regulate and to even ban
Newfoundlanders and Labradorians from catching fish to consume;

xx)      The Terms of Union, which deals extensively with fisheries does not grant to Canada the jurisdiction to regulate this traditional fishery, whether within the three (3) mile territorial limit of the Dominion of Newfoundland, today the Province of Newfoundland and Labrador or elsewhere;

xxi)     The Applicants were fishing for codfish pursuant to licenses issued to them by the Department of Fisheries and Oceans Canada referred to as 2004 License-Atlantic Recreational Program - Groundfish. They have been charged with not affixing tags through the jaws of all of the fish while still at sea.

xxii)    They deny that the Government of Canada has the jurisdiction to issue such licenses or to regulate the personal consumption fishery.

Basis for Constitutional Question:

1.        Do the Terms of Union of Newfoundland with Canada grant to Canada the jurisdiction to regulate the catching of fish for personal consumption in the waters adjacent to the Province?

2.        If Canada has the jurisdiction to regulate this fishery, does that jurisdiction extend inside a three (3) mile limit taking into consideration the headland to headland rule?

DATED at the Town of Daniel's Harbour, in the Province of Newfoundland and Labrador, this        day of October 2004.
Solicitor for the Plaintiff Whose address for service is: 57 Main Street P.O. Box 10 Daniel's Harbour, NL AOK 2CO
Telephone: (709) 898-2060 Fax: (709) 898-2047
Attention: T. James Bennett

The Provincial Court of Newfoundland and Labrador Grand Bank, NL

Picco & White Barristers and Solicitors 195-197 McGettigan Blvd, Marystown, NL AOE 2MO
Attention: Gten V. Picco. Crown Attorney

Attorney General for Canada Justice Building 239 Wellington Street Ottawa, ON K1A 0118
Fax: (613)954-1920

Honourable Thomws Marshall
Attorney General for Newfoundland and Labrador
P.O. Box 8700
Confederation Building
St. John's, NL

Newfoundland's Food Fishery.

Have we been ignoring our cultural and constitutional inheritance?