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Provincial Court of Newfoundland and Labrador Grand Bank Files

0804A-0308 & 0804A-0309

Between:
Her Majesty in Right of Canada

And:
George Nichol & Richard Bouzan
Decision of Porter, P.C.J.

Introduction


[1] There is a territorial sea(1) around the shores of Labrador and the islands adjacent thereto, and around the island of Newfoundland and all islands adjacent thereto. Within that territorial sea, the Federal government exercises jurisdiction over all matters within its legislative competence, and the Province exercises jurisdiction over all matters within its legislative competence. The Federal jurisdiction to regulate the fishery is unique, sole, and complete: the Province has no jurisdiction over fishing.


1 While the parties have, in their respective submissions, discussed a territorial sea of three miles, 1 am not persuaded that that is in fact the case. There are islands more than three miles offshore over which the Province asserts jurisdiction. For example, in the schedule to the Wilderness and Ecological Reserves Act, RSNL W-9, there is reference i3 the "Funk Island Seabird Sanctuary", which, at 49 degrees, 46 minutes North, and 5^degrees, 11 minutes West, is approximately 72.5 km East of Joe Batt's Arm, and approximately 60 km Northeast of Cape Freels. Funk Island is well outside any headland to headland line drawn in any bay, and would not fit within a headland line drawn from Cape Bonavista to Cape Chidley.


[2] On the agreed facts before the Court, the Defendants are guilty. The following constitutes my reasons for arriving at that conclusion.

Chronology:


[3] On September 20, 2004, Fishery Officer Darryl Walsh swore that he had reason to believe and did believe that the defendants "did, on or about the 12th day of September, 2004, at or near Little Bay East, Fortune Bay, Newfoundland and Labrador, in NAFO Sub-Division 3PS, being Canadian Fishery Waters, while engaged in the groundfish food fishery and fishing under the authority of an Atlantic Recreational Fishing license, fail to comply with a condition of that license, to wit: did not tag codfish immediately after harvesting codfish, contrary to section 22(7) of the Fishery General Regulations, thereby committing an offence punishable under section 78(a) of the Fisheries Act, R.S., c-F-14,s.l, as amended."


[4] On September 24, the defendants were served with a summons to attend this Court on October 6, 2004, to answer to the charge.


[5] On that date, the matter of plea was postponed to November 17, 2004.


[6] On October 15, 2004, the defendants gave notice that they intended to ''question the constitutional validity of the Fisheries Act and Fishery General Regulations as they apply to catching of cod for personal consumption in Newfoundland and Labrador."


[7] On November 17, 2004, the trial was scheduled for March 3, 2005.


[8] On that date, the matter was adjourned to July 14, 2005, to allow the defendants time to file an application for prerogative relief in the Supreme Court, Trial Division.


[9] An application to the Supreme Court, Trial Division was made, and it was dismissed, without written reasons, on May 27, 2005.


[10] On July 14, 2005, one of the lawyers involved in the matter had a personal emergency, and so the trial was postponed by consent to September 30,2005.


[11] Prior to that date, on September 26, 2005, counsel filed an Agreed Statement of Fact, and then proceeded on the scheduled date of September 30, 2005, with submissions as to the constitutional issues raised by the defendants.


[12] The Agreed Statement of Fact reads as follows:

"On September 12, 2004 Fishery Officers Daryl Walsh and Chad Ward were conducting a vessel patrol of NAFO Division 3Ps, specifically within Fortune Bay near the community of Little Bay East. This patrol occurred in Canadian Fishery waters off the Coast of the Province of Newfoundland and Labrador. The NAFO Division 3Ps recreational cod fishery was open at that time.

At 1420 hours the officers noticed an aluminum boat with two individuals aboard. This vessel was roughly within 500 feet of the shoreline. The vessel appeared to be a recreational cod fishing boat. Two rods and reels were observed in the vessel. One man at in the front of the boat later identified as Richard Bouzan of St John's, one of the accused, was searching for his tags and the man at the rear of the boat later identified as George Nicholls of St John's, the other accused, was then in the process of tagging cod. At no time did the officers see either man catch any fish.

As the Officers were coming alongside they told both gentlemen not to bother tagging any more fish. Officer Walsh who was at the front of the patrol boat observed Mr. Nicholls tag approximately 3 to 4 codfish while the other man, Mr. Bouzan, had not tagged any fish as he had just found his tags and had them placed on the seat of the boat next to him. Once alongside Officers Walsh and Ward told the men they would be conducting an inspection of their vessel. Officer Walsh obtained both men's Department of Fisheries and Oceans 3Ps recreational cod licenses and began filling out an inspection form.

Officer Ward next asked the men to hand over their catch so that he could inspect it. The men handed over a fish pan full of cod with one redfish in it as well to Officer Ward who then inspected the catch aboard

the patrol vessel. Twelve cod fish were found tagged with tag # 012259 belonging to Mr. Nicholl and 17 cod fish were not tagged. No cod were tagged from Mr. Bouzan's license which was tag # 010857. Fifteen of the cod had been gutted prior to tagging and appeared to the officers to have been caught for some time.

Officer Ward asked the men when they had come out fishing and both men said they had been out "most of the day." No fish entrails were present aboard the vessel or floating in the water next to the boat. The men said they were just going to stop fishing and head to port. Both officers told both men they could return to port and that they would follow them in.

After arriving at a wharf in Little Bay East, Newfoundland both officers separated the tagged cod from the untagged ones and then headed over to where both men landed and returned the tagged cod and their fish pan to them. At that time both officers identified themselves to both men with their badges and identification cards.

Officer Walsh told both men that an investigation had been initiated. At approximately 1510 hours both men were read the standard caution by Officer Walsh and rights to council [sic] were extended. Both men said they understood all parts and did not want to contact duty council [sic] at that time. Officer Walsh told both men that they may be charged with failing to tag cod immediately after catching the cod. Officer Walsh told both men that their untagged cod was seized and that their unused cod tags would be seized as part of the investigation. Both men supplied Officer Walsh with their tags at that time. All fifteen of Mr. Bouzan's recreational cod tags were seized and three unused tags were seized from Mr. Nichol's license.

After caution Mr. Bouzan said, "1 didn't read my license. It's my own fault, I should have read the fine print." Mr. Bouzan said this after the officers told both men that all cod caught must be tagged immediately after catching the cod while recreational cod fishing. Both men were told by the Officers that they would be in touch with them at a later date. Both officers then left the area and continued their patrol. The seized fish were stored at the DFO Warehouse in Marystown and the unused tags were stored at the DFO Office in Marystown.

It was a condition of both mens' license that any cod caught must 'be tagged immediately after it is caught in the following manner: A non-used tag, issued with this license and valid for the NAFO division being fished, must be affixed through the gill and mouth of each Atlantic Cod. The tag must be properly sealed such that the tag cannot be re-opened or removed.' Each license had 15 tags issued with it."


The Positions of the Parties:


[13] The prosecution says that, whatever might have been discussed prior to union of this Province with Canada, the Terms of Union clearly contemplate exclusive jurisdiction in all matters relating to the fishery being solely within the Federal powers.


[14] The defendants say that the Prime Minister of Canada made a firm commitment during the negotiations with Newfoundland to preserve the rights of Newfoundlanders to continue to fish for codfish, and that this prevents the Federal department of fisheries and oceans from exercising any regulatory authority over the inshore fishery.


[15] The fact that the defendants had purchased licenses, with tags for codfish, appears, at least superficially, to disagree with their position that the federal department of fisheries has no jurisdiction over inshore fisheries in this Province. Notwithstanding this incongruity, the Court proceeded to hear the challenge to the constitutionality of the federal government's role in regulating the inshore fishery.

The First Question


[16] The first question posed as part of the notice of constitutional question originally read as follows:

" 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 ?"


[17] On September 9, 2005, the Defendants amended this question, to read as follows:

"Does the government of Canada have the jurisdiction to regulate the catching of groundfish, including cod, within three miles of the coast of Newfoundland and Labrador going from headland to headland ?"


[18] In s. 146 of the original British North America Act, 1867, admission was provided for the entry into union with Canada of other colonies, including Newfoundland :

"It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Council, on Addresses from the Houses of the Parliament of Canada, and from the Houses of the respective Legislatures of the Colonies or Provinces of Newfoundland, Prince Edward Island, and British Columbia, to admit those Colonies or Provinces, or any of them, into the Union, and on Address from the Houses of the Parliament of Canada to admit Rupert's Land and the Northwestern Territory, or either of them, into the Union, on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act; and the Provisions of any Order in Council in that Behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland."


[19] The territorial limits of Labrador having been determined by the Judicial Committee of the Privy Council in 1927, the Province of Newfoundland was added on March 31, 1949, by the Newfoundland Act, (U.K.), 12-13 Geo. VI, c. 22, which ratified the Terms of Union of Newfoundland with Canada. This legislation has also been referred to as the British North America Act, 1949.


[20] Pursuant to the Labrador Act, RSNL1990 c. L - 3, the Province began referring to itself as "Newfoundland and Labrador". The Province officially changed its name to "Newfoundland and Labrador" on proclamation of the Newfoundland and Labrador Act, SNL2001 c. N-3.1, which came into force contemporaneously with the Constitution Amendment, 2001 (Newfoundland and Labrador), on December 6, 2001.


[21] Long before the union of this Province with Canada, however, the question of jurisdiction over fishery regulation in Canadian waters was litigated and resolved in favour of the Federal Crown.


[22] In A.G. Canada v. A.G. Ontario, "The Fisheries Act Reference" [1898] A.C. 700, the Judicial Committee of the Privy Council said that fishing   regulations   and  restrictions   are   within   the   jurisdiction  of the Dominion and ultra vires the provinces.


[23] The issue of jurisdiction was again considered by the Supreme C of Canada in North v. Canada, (1906) 37 S.C.R. 385. While that case was primarily concerned with the pursuit of an American schooner beyond three miles offshore, the question of jurisdiction was also an issue. Duff, J., said as follows :

" Some questions were raised on this appeal by Mr. Wilson as to the legality of the condemnation on the ground that the fisheries along the coast belonged to the province and not to the Dominion and that the legislation for their protection should have been provincial and not Dominion. The simple answer to such objections is that the British North America Act, 1867, conferred upon the Dominion the exclusive power of legislation with respect to seacoast and inland fisheries and that the judgment of the Judicial Committee in the case of Attorney General of Canada v. Attorney-General of Ontario, [1898] A.C. 700, determines affirmatively the exclusive right of the Dominion Parliament to make or authorize the making of regulations and restrictions respecting the fisheries of Canada."


[24]   Subsequently in that case, Idmgton, J., said as follows:

" In so far as this objection rests upon the absence of special statutory enactment relative to that part of the ocean beyond the three-mile-limit, it is answered by the interpretation already given the statute. If, however, the objection is intended to distinguish between the authority that may exist in the Imperial Parliament and that more limited authority that the Canadian Parliament as a mere colonial legislature may possess, different considerations may arise. In this way of putting the objection it seems to be covered by section 91, sub-section 12 of the British North America Act, 1867, and the case of "The Fisheries Act", (1898) A.C. 700. This section 91 was intended to and does, I think, confer upon Canada as full power in every respect in relation to the sea-coast and inland fisheries of Canada as was possessed by the Imperial Parliament itself. It seems to be beyond doubt that such delegated authority would carry with it the right to pass such an Act as that now in question. The Act was upheld in the case just referred to."


[25] In the British Columbia Fisheries reference case, (1913), 47 S.C.R. 493, the Supreme Court of Canada held that the provisions of the "British North America Act" vested in the Dominion Parliament the exclusive authority to make laws relating to the "Sea Coast and Inland Fisheries," and cited Attorney-General for the Dominion of Canada v. Attorney-General for Ontario, [1898] A.C. 700, at page 716, for the proposition that all restrictions or limitations by which public rights of fishing are sought to be limited or controlled can be the subject of Dominion legislation only.


[26] The B.C. Fisheries reference case was considered by the Judicial Committee of the Privy Council, at (1913) 15 D.L.R. 308.


[27] The Court said :

"To answer this question one must examine the limitations to the powers of the provincial legislature which are relevant to the question under consideration. They arise partly from the provisions of sees, 91 and 92 of the British North America Act, 1867, and partly from the terms of union of British Columbia with the Confederation, with which we have already dealt. By sec. 91 of the British North America Act, 1867, the exclusive legislative authority of the Parliament of Canada extends to all matters coming within (amongst other things) "Sea Coast and Inland Fisheries". The meaning of this provision was considered by this Board in the case of Attorney-General for the Dominion v. Attorney-General for the Provinces, [1898] A.C. 700, and it was held that it does not confer on the Dominion any rights of property, but that it does confer an exclusive right on the Dominion to make restrictions or limitations by which public rights of fishing are controlled, and on this exclusive right provincial legislation cannot trench. It recognized that the province retains a right to dispose of any fisheries to the property in which the province has a legal title, so far as the mode of such disposal is consistent with the Dominion right to regulation, but it held that, even in the case where proprietary rights remain with the province, the subject-matter may be of such a character that the exclusive power of the Dominion to legislate in regard to fisheries may restrict the free exercise of provincial rights. Accordingly, it sustained the right of the Dominion to control the methods and season of fishing and to impose a tax in the nature of license duty as a condition of the right to fish, even in cases in which the property in the fishery originally was or still is in the provincial Government.

The decision in the case just cited does not, in their Lordships' opinion, affect the decision in the present case. Neither in 1867, nor at the date when British Columbia became a member of the Federation, was fishing in tidal areas a matter of property. It was a right open equally to all the public, and, therefore, when, by sec. 91, sea coast and inland fisheries were placed under the exclusive legislative authority of the Dominion Parliament, there was in the case of the fishing in tidal waters nothing left within the domain of the provincial legislature. The right being a public one, all that could be done was to regulate its exercise, and the exclusive power of regulation was placed in the Dominion Parliament. Taking this in connection with the similar provision with regard to "Navigation and Shipping." their Lordships have no doubt that the object and the effect of these legislative provisions were to place the management and protection of the cognate public rights of navigation and fishing in the sea and tidal waters exclusively in the Dominion Parliament, and to leave to the province no right of property or control in them. It was most natural that this should be done, seeing that these rights are the rights of the public in general and in no way special to the inhabitants of the province."


[28] From the foregoing, it is clear that it was well settled law long before Newfoundland's entry into Confederation that the Federal Crown exercised exclusive jurisdiction over the fishery in all waters which were then part of the Dominion. This is clear in section 91, item 12, of the British North America Act, 1867, and was consistently so interpreted by the Courts in the jurisprudence cited above.


[29] The terms of union between Newfoundland and Canada recognize the existing legislation and jurisprudence, as transfer of the fisheries jurisdiction to the Federal authority is clearly contemplated.


[30] The terms of union are a schedule to the Newfoundland Act, (1949) 12 & 13 Geo. VI, c. 22 (U.K.) (sometimes called the British North America Act, 1949). Several of those terms are relevant to the matter at Bar. These are terms 3, 18(1), 22, and 31 (g).


[31] Term 3 provides as follows:

"3. The Constitution Acts, 1867 to 1940, shall apply to the Province of Newfoundland in the same way, and to the like extent as they apply to the provinces heretofore comprised in Canada, as if the Province of Newfoundland had been one of the provinces originally united except in so far as varied by these Terms and except such provisions as are in terms made or by reasonable intendment may be held to be specially applicable to or only to affect one or more and not all of the provinces originally united."


[32] Term 18(1) provides as follows:

"18. (1) Subject to these Terms, all laws in force in Newfoundland at or immediately prior to the date of Union shall continue therein as if the Union had not been made, subject nevertheless to be repealed, abolished. or altered by the Parliament of Canada or by the Legislature of the Province of Newfoundland according to the authority of the Parliament or of the Legislature under the Constitution Acts, 1867 to 1940, and all orders, rules, and regulations made under any such laws shall likewise continue, subject to be revoked or amended by the body or person that made such orders, rules, or regulations or the body or person that has power to make such orders, rules, or regulations alter the date of Union, according to their respective authority under the Constitution Acts, 1867 to 1940."


[33] The foregoing generally recognize that the new Province would have the same status as the original parties to the British North America Act, 1867.


[34] Turning to more specific provisions relating to the fishery, section 22 provided for a transitional period:


"22. (1) In this Term, the expression "Fisheries Laws" means the Act No. I 1 of 1936, entitled "An Act for the creation of the Newfoundland Fisheries Board", the Act No. 14 of 1936, entitled "An Act to Prevent the Export of Fish Without License", the Act No. 32 of 1936, entitled "An Act to Amend the Newfoundland Fisheries Board Act (No. I 1 of 1936)", the Act No. 37 of 1938, entitled "An Act Further to Amend the Newfoundland Fisheries Board Act, 1936", the Act No. 10 of 1942, entitled "An Act Respecting Permits for the Exportation of Salt Fish", the Act No. 39 of 1943, entitled "An Act Further to Amend the Newfoundland Fisheries Board Act, 1936", the Act No. 16 of 1944, entitled "An Act Further to Amend the Newfoundland Fisheries Board Acts, 193638", and the Act No. 42 of 1944, entitled "An Act Further to Amend the Newfoundland Fisheries Board Act, 1936", in so far as they relate to the export marketing of salted fish from Newfoundland to other countries or to any provinces of Canada.

(2) Subject to this Term, all Fisheries Laws and all orders, rules, and regulations made thereunder shall continue in force in the Province of Newfoundland as if the Union had not been made, for a period of five years from the date of Union and thereafter until the Parliament of Canada otherwise provides, and shall continue to be administered by the

Newfoundland Fisheries Board; and the costs involved in the maintenance of the Board and the administration of the Fisheries Laws shall be borne by the Government of Canada.

(3) The powers, authorities, and functions vested in or imposed on the Governor in Commission or the Commissioner for Natural Resources under any of the Fisheries Laws shall after the date of Union respectively be vested in or imposed on the Governor General in Council and the Minister of Fisheries of Canada or such other Minister as the Governor General in Council may designate.

(4) Any of the Fisheries Laws may be repealed or altered at any time within the period of five years from the date of Union by the Parliament of Canada with the consent of the Lieutenant-Governor in Council of the Province of Newfoundland and all orders, rules, and regulations made under the authority of any Fisheries Laws may be revoked or altered by the body or person that made them or, in relation to matters to which paragraph three of this Term applies, by the body or person that under the said paragraph three has power to make such orders, rules, or regulations under the Fisheries Laws after the date of Union.

(5) The Chairman of the Newfoundland Fisheries Board or such other member of the Newfoundland Fisheries Board as the Governor General in Council may designate shall perform in the Province of Newfoundland the duties of Chief Supervisor and Chief Inspector of the Department of Fisheries of the Government of Canada, and employees of the Newfoundland Fisheries Board shall become employees in that Department in positions comparable to those of the employees in that Department in other parts of Canada.

(6) Terms eleven, twelve, thirteen and eighteen are subject to this Term."

[35] Here it must be noted that the fisheries laws referenced in section 22(1) of the terms of union were specifically repealed by Parliament on May 27, 1960, with the passage of An Act to Repeal Certain Fisheries Laws of Newfoundland, 8-9 Eliz.II, c. 15.


[36] The foregoing terms set out the general rules of application of the original SNA Act, 1867, and the transition of jurisdiction over the fishery. However, there is no doubt that the terms specifically recognized jurisdiction over fisheries ultimately vested in the Federal authority. Term 31(g) provides as follows :

"31. At the date of Union, or as soon thereafter as practicable, Canada will take over the following services and will as from the date of Union relieve the Province of Newfoundland of the public costs incurred in respect of each service taken over, namely, ...

(g) protection and encouragement of fisheries and operation of bait services;..."


[37] However, the decisions prior to 1949 and the terms of union set out above did not bar subsequent litigation.


[38] Almost immediately after the union, there arose a dispute about whether Bowater's Newfoundland pulp and paper mill operations could continue their pre-confederation tax status. The dispute was resolved by a reference to the Supreme Court of Canada, in a decision reported at [1950] S.C.R. 608, in which the Court held that upon the passing of The British North America Act, 1949, 12-13 Geo. VI (Imp.), and "An Act to approve the Terms of Union of Newfoundland with Canada", 1949 (Can.) 1st Sess., c. 1, Newfoundland became a province of the Dominion of Canada. Thereupon

the  legislative powers theretofore possessed by Newfoundland became vested in the Parliament of Canada and the legislature of the Province of

Newfoundland in accordance with sections 91 and 92 of the B.N.A. Act.


[39] That seemed to resolve the issue for a while, but in the late 1970's the issue came up again, this time in relation to the seal fishery. The late Morrisey Johnson and others were parties to Re Johnson (1979) 24 Nfld & P.E.I. R. 227 (NF CA). In that case, our Court of Appeal held that the Fisheries Act had been proclaimed into force in this Province on the first day of May, 1958, the provisions of section 18(1) of the terms of union having allowed a transitional period during which the Provincial laws had continued in force.


[40] In Moore v. Johnson [1982] 1 S.C.R. 115, the Supreme Court of Canada reviewed the British North America Acts, 1867 to 1949, referred to the 1950 decision in the Bowater's case, and said that control and regulation of the fishery is within the exclusive jurisdiction of Parliament.


[41] In 1988, when the seal fishery was again the subject of much debate, the question of jurisdiction over the regulation of the hunt became an issue in IFAW v. Canada [1989] 1 F.C. 335 (F.C.A.).


[42] Briefly, in that case IFAW protestors, who had been prevented from taking their cause to the Front by Federal regulation, sought to challenge the validity of the "no fly zone" created around the Front, and in so doing, challenged the exercise of the regulatory jurisdiction by the Federal government. MacGuigan, J., upheld the decision at trial that the regulations made by Federal authority were intra vires the Federal Crown.


[43] The division of powers between the Federal and Provincial authorities in relation to the fishery was again litigated in the prosecution of Ford Ward. Ward was one of many Newfoundlanders caught by the federally imposed prohibition of the sale of blue back seal pelts, notwithstanding the fact that seal hunters were legally entitled to hunt blue back seals. Ultimately, the matter was decided by the Supreme Court of Canada, at Ward v. Canada [2002] 1 S.C.R. 569.


[44] At paragraph 13 of Ward, the Court said:

"The federal and provincial division of powers is set out in ss. 91 and 92 of the Constitution Act, 1867. Section 91 grants exclusive legislative authority to the Parliament of Canada for all matters in relation to sea coast and inland fisheries (s. 91(12)), and the [page578] criminal law (s. 91(27)). Section 92 specifies that the legislature in each province may exclusively make laws in relation to property and civil rights in the province (s. 92(13))."


[45] At paragraph 34, the Court said:

"First, the preponderance of authority suggests that the fisheries power is not confined to conservation, nor to pre-sale activities, but extends more broadly to maintenance and preservation of the fishery as a whole, including its economic value. In The Queen v. Robertson (1882), 6 S.C.R. 52, Ritchie C.J. described the fisheries power as extending "to subjects affecting the fisheries generally, tending to their regulation, protection and preservation". Accordingly, Parliament's power extended to "all such general laws as enure as well to the benefit of the owners of the fisheries as to the public at large, [page586] who are interested in the fisheries as a source of national or provincial wealth" (pp. 120-21)."


[46] At paragraph 41, the Court said:

"These cases put beyond doubt that the fisheries power includes not only conservation and protection, but also the general "regulation" of the fisheries, including their management and control. They recognize that "fisheries" under s. 91(12) of the Constitution Act, 1867 refers to the fisheries as a resource; "a source of national or provincial wealth" (Robertson, supra, at p. 121); a "common property resource" to be managed for the good of all Canadians (Comeau's Sea Foods, supra, at para. 37). The fisheries resource includes the animals that inhabit the seas. But it also embraces commercial and economic interests, aboriginal rights and interests, and the public interest in sport and recreation."


[47] One can only conclude from the following that the right of the federal Crown to regulate all aspects of the fishery, including in sport and recreational fisheries, is absolute, has not changed since the original draft of

the provisions of section 91, item 12, of the British North America Act. in 1867, and has consistently been so interpreted by the Courts."


[48]   It follows that the answer to the first question is yes.


The second question:


[49] The second question was originally posed as follows:

"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 ?"


[50]  This was amended on September 9, 2005, to read as follows:

"If the government of Canada has the jurisdiction to regulate the catching of groundfish, including cod, within three miles of the coast of Newfoundland and Labrador going from headland to headland, does that jurisdiction include the right to regulate the catching of groundfish, including cod, for personal consumption?"


[51] It is important here to note that the jurisprudence discussed in relation to the first question consistently supports a finding of Federal authority over the "seacoast and inland fisheries". The second question as posited has three parts: first, the "three mile limit", second, the "headland to headland rule",

2 My finding that the federal government exercises sole and complete jurisdiction over all fishing in this province may be inconsistent with some provincial legislation, including the Wildlife Act prohibition against possession of untagged salmon, as well as the Province's role in regulating the trout fishery.

and, third, a distinction between fish caught for personal consumption and fish taken for sale. Let me discuss these in turn. The "three mile limit"


[52] It is unnecessary for me to decide whether a "three mile limit", as may have existed in international customary law prior to the establishment of the United Nations Convention on the Law of the Sea, applies to this case. This is because there is ample authority for the proposition that Canada has jurisdiction over the fishery within three miles of all Canadian lands, including offshore islands. See, for example, Mowat v. McFee (1880) 5 S.C.R. 66, Canada v. Eldndge (1895) 5 Ex. C.R. 38, The Frederick Gerring (1896) 5 Ex. C.R. 164, North (1906) 37 S.C.R. 385, the British Columbia Fisheries Reference, (1913) 47 S.C.R.493, affirmed (1914) 15 D.L.R. 308 (Privy Council), and Fallon (1917) 55 S.C.R 348. While all these decisions pre-date Newfoundland's entry into confederation, they apply to the case at bar because the Newfoundland Act ( British North America Act, 1949) puts this Province in the same position as if we had joined Canada in 1867. The "headland to headland rule"

21


[53] In the document entitled "Statements on questions raised by the Newfoundland delegation", dated December 11, 1948, at page 8, item (xii), contains the following:

"With respect to the establishment of territorial waters it is our understanding that the 'headland to headland' rule, as it

now applies to Newfoundland, will continue to apply."( emphasis added)


[54] The defendants rely on this as authority for the proposition that Confederation was premised on the Province maintaining jurisdiction over inshore fisheries within the bays around our shoreline. As will become clear from the following, I have concluded that there is not now, nor was there ever, a 'headland to headland' rule applicable to this Province, and that the referenced extract was in fact based on an incorrect understanding of the law relating to jurisdiction of Newfoundland to regulate outside its bays, including all offshore islands.


[55] This Province incorporates a mainland part, being Labrador, the island of Newfoundland, and literally dozens, if not hundreds, of smaller islands off shore both of the larger parts. While some of the islands lie within headlands, many lie beyond points of land, and do not fall within bays. However, there is no reason in law to distinguish between them in terms of jurisdiction. If the contrary were true, then we would have inconsistent application of laws in different parts of the same Province. That potential confusion is to be avoided.


[56] In Roff [1996] N.J. No. 287 (C.A.), the Accused had been armed with a rifle and a shotgun while aboard a vessel in the waters of Toslow Cove in Placentia Bay. The vessel was moored approximately 50 feet beyond the low water mark of the land. The Provincial wildlife authorities charged the Accused with offences under the Provincial Wildlife Act and regulations, because the Accused had no permit to have a weapon "in an area frequented by wildlife".


[57] At trial, the Learned Trial Judge accepted the argument that the Accused, being outside of the low water mark, was beyond the legislative jurisdiction of the Province.


[58]   On appeal, the Court of Appeal reversed the decision. At paragraphs 8

and 9, the Court said as follows :

"f 8 Without doubt, this appeal must succeed. The authorities on which the trial judge relied deal only with the delineation of the territory of the Province of Newfoundland, or for that matter any Province, i.e. where the land meets the territorial sea. However, what is at issue in this particular case is not the territorial sea, but rather "inland waters". Over such waters, the Provinces have jurisdiction. One need only refer to the decision of the Supreme Court of Canada in Re Ownership of the Bed of the Strait of Georgia, [1984] 1 S.C.R. 388.


The law is accurately summed up in Hogg's Constitutional Law of Canada (3rd edition) at Chap. 13.3(b) as follows:


With respect to coastal provinces, a question arises as to their jurisdiction over offshore waters. If the definition of a province's boundary explicitly includes some portion of the offshore, then of course that area is within the province. If the definition of a province's boundaries is not explicit on the point, the general rule is that the territory of the province ends at the low water mark. The only exceptions are "inland waters" such as harbours, bays, estuaries and other waters lying "between the jaws of the land"; these waters are within the province. The territorial sea and the high sea beyond (over the continental shelf) are outside the territory of the province." [ underlining added]


[59] The foregoing does not mean that the Province has absolute or exclusive jurisdiction to control all activities within headlands, or "jaws of land". What the decision means is that the Province has jurisdiction over all matters within its legislative competence. As indicated earlier, the jurisdiction over fishing is, in this Country, the exclusive domain of the Federal authority, and has been so since Confederation.


[60] It is also important, however, to remember that the laws of the Province have universal application throughout the Province, including whether an island is within or without the "jaws of land". As noted by the Court of Appeal in Roff, supra, "the Wild Life Act and the Regulations made thereunder, not being restricted in their application throughout the Province, are applicable to it."


[61] According to the extract from Hogg, cited by the court of Appeal in Roff, supra, Provincial jurisdictions extend only to the headlands, or jaws of bays unless otherwise delineated. Here it is important to note that all islands around the coastlines of Newfoundland and Labrador belong to this Province, except for the archipelago of St. Pierre et Miquelon, which continues to be a Territoire d'outre mer of France. This is by operation of law, including the Treaty of Paris, 1763, the Royal Proclamation, and the Treaty of Versailles, 1783. A review of the Royal Proclamation will show that, at one time, this Province extended as far West as to include Anticosti Island and the Magdalen Islands:

"And to the end that the open and free fishery of our subjects may be extended to and carried on upon the coast of Labrador, and the adjacent islands, we have thought fit, with the advice of our said Privy Council, to put all that coast, from the River St. John's to Hudson's Streights, together with the islands of Anticosti and the Madelaine, and all other smaller islands lying upon the said coast, under the care and inspection of our Governor of Newfoundland."


[62] While the Magdalen Islands and Anticosti Island were subsequently severed from this Province by the passage of the Quebec Act, 1774, there is no doubt that Newfoundland continued to include all other islands around its shores, and continues today, as Newfoundland and Labrador, to exercise jurisdiction over them in all areas within its legislative competence.


[63] In the Newfoundland Act, 1809, 49 Geo. Ill Cap. 27 (Imp.), the preamble reads as follows: "An Act for establishing Courts of Judicature in the Island of Newfoundland and the Islands adjacent; and for re-annexing Part of the Coast of Labrador and the Islands lying on the said Coast to the Government of Newfoundland."


[64] The words "Island of Newfoundland and the islands adjacent" are also included in the Letters Patent dated 28th March, 1876, as are the words " all the islands adjacent to that part of the coast of Labrador". Those Letters Patent are reproduced, inter alia, in the Appendix to the Revised Statutes of Newfoundland, 1970.


[65] Further, section 2 of the terms of union, as set out in the schedule to the Newfoundland Act, 1949, 12 & 13 Geo. VI, c. 22 (U.K.), confirms the delineation of the Province, as follows:

"2. The Province of Newfoundland shall comprise the same territory as at the date of Union, that is to say, the island of Newfoundland and the islands adjacent thereto, the Coast of Labrador as delimited in the report delivered by the Judicial Committee of His Majesty's Privy Council on the first day of March, 1927, and approved by His Majesty in His Privy Council on the twenty-second day of March, 1927, and the islands adjacent to the said Coast of Labrador."


[66] In light of the express intention to include the adjacent islands in the Province, one must conclude that this Province falls within the exceptional category as set out in the quote from Hogg, cited by the Court of Appeal, and reproduced above: If the definition of a province's boundary explicitly includes some portion of the offshore, then of course that area is within the province. The "headland rule" clearly does not apply to this Province, and, as noted above, Canada's jurisdiction over fisheries is complete and exclusive.


[67] To clarify this, let me posit some practical examples of the coexistent, and contemporaneous (subject to the doctrine of federal supremacy) jurisdiction between Canada and this Province over their respective areas of legislative competence. Suppose that a man sails out to Merasheen Island. He goes ashore and shoots a rabbit. That activity, being within the legislative competence of the Province, is regulated by the Provincial Wildlife Act. Now, if the same man, on the same hypothetical voyage, were to jig a codfish, then that activity, being within the legislative competence of Canada, is regulated by the Federal Fisheries Act. If he shoots a seal, ,-nether it be in the water or on the beach, the taking of the seal is regulated bv Federal legislation. And if he shoots a moose, whether it be in the water or on the beach, that activity is subject to Provincial legislation. Here I note that it is, of course, quite legal to shoot a seal on a beach, but that one can not legally shoot a swimming moose.


[68] Now, Merasheen Island is, of course, in Placentia Bay, and therefore within the headlands of that Bay, and in what the Court of Appeal in Roff referred to as "inland waters". Were the same man in the hypothetical posited above were to sail instead to Baccalieu Island, which lies 5.5 km off the northern tip of the Avalon Peninsula, and is therefore neither within any "jaws of land" nor within three miles of the shores of the island of Newfoundland, the same rules would apply, and the same division of powers between the Federal and Provincial authorities would govern any activities undertaken there. That would be an example of shared jurisdiction, divided by respective heads of legislative competence as set out in the British North America Acts, beyond the "inland waters", as described in Roff, but within the territorial sea.

'' Although a relatively rare event, moose are sometimes seen swimming in the salt waters around the Province. This is how they sometimes end up on smaller, unpopulated islands around our shores. Hunting, taking, killing, or molesting big game while the animal is swimming is prohibited by section 41 of the Wildlife Regulations, CNLR 1156/96.


[69] By way of obiter, the Province specifically exercises jurisdiction over Baccalieu Island as an ecological reserve [ see the Baccalieu Island Ecological Reserve Order, C.N.L.R. 1089/96] , while any hunting of migratory birds in the area would, of course, be subject to compliance with the Federal Migratory Birds Convention Act, 1994, S.C.,c.22. If there was a headland to headland rule in force in this Province, then the Province would not be able to exercise jurisdiction over the offshore islands, notwithstanding that these islands have always been considered to form part of this Province.


[70] In the hypothetical situations discussed above, I have arbitrarily used Merasheen and Baccalieu Islands; one could equally consider Funk Island, Gannett Islands, or any other of the many islands around our shores to illustrate the point.


[71] In summary, the "headland to headland" rule, if it is a rule, does not restrict Newfoundland's jurisdiction over outlying islands, because those islands were included in the description of Newfoundland in the Royal Proclamation, 1763, and in all subsequent relevant legislation. Because the Province's jurisdiction extends outside its bays, there can be no application of the "headland to headland" rule to this Province.


[72] The Crown says that the point is a bit of a "red herring" in any event, because no matter how the territorial sea is defined, within it the jurisdictions of the two governments are clearly governed by the British North America Acts, 1867 to 1949, with all fishing being within the exclusive jurisdiction of the Federal Crown. I agree with that position: both the Federal and provincial governments exercise their respective distinct areas of legislative competence in the same area, contemporaneously, and subject to federal supremacy in the event of jurisdictional overlap.


[73] The third part of the second question narrows the focus to not just fishing for cod, but to fishing for cod "for personal consumption". In this regard, say the Defendants, they are in the same situation as the Powleys were. The Powleys were Metis in Ontario who said that they had a right to take moose, without license, for personal consumption: see Powley [2003] 2S.C.R. 207.


[74]  Contrary to the Metis in Ontario, there are no indigenous aboriginal communities on the island of Newfoundland: see Drew [2003] N.J.  177.

Even if there were, there is no suggestion that the Defendants claim membership in such a community.


[75] As a matter of Crown honour, say the defendants, the federal government must have a referendum among the residents of this Province before they can find the jurisdiction to regulate the taking of fish for personal consumption.


[76] This position is untenable: there was a referendum prior to Newfoundland entering Confederation. On entry into Confederation, Newfoundland assumed the same position as if Confederation had been achieved in 1867. As earlier discussed, this included recognition of exclusive jurisdiction over the fishery in the Federal Crown. There is no reason to distinguish between fishing for trade, barter, or personal consumption.

4 It is unnecessary, in this decision, to canvas the situation among the indigenous peoples of Labrador, the Innu and the Inuit. While the Labrador Metis Association did intervene in Powley, there has been no decision of any Court which recognizes the distinctive and collective hallmarks of a Metis community, as seen in Powley, among those claiming Metis status in Labrador.


[77]   In light of the foregoing, it follows logically that the answer to the second question is also yes.

Conclusion:


[78] The agreed statement of fact clearly sets out the fact that both defendants had caught codfish pursuant to license, but that neither man had tagged all of his fish, as required by the condition of the license. This leads to only one conclusion which is logically sound: both defendants must be found guilty of the offence charged. Submissions as to disposition are invited.

 


Dated at Grand Bank, NL, this 28th day of October, 2005.

  

Mr. M. Stares for Her Majesty in Right of Canada Mr. J. Bennett for Mr. Nichol and Mr. Bouzan