Category Archives: Public Law

The Value of Fish: Changing the Purpose of Fisheries Regulation in Canada

*une version française est disponible ici — this blog post was first published on foodlaw.ca

Why do we fish? This may appear as a silly question, but given the dismal state of fisheries in Canada and in the world, it is a very legitimate question. Several answers come to mind: to make a living, for spiritual or cultural reasons (e.g. a ceremony), and for recreation. However, there is one reason that underlines all fishing (with the exception of recreational fishing when the fish is released): food. We fundamentally and undeniably fish to eat. No one will be astounded by that answer, but as obvious as it may seem, one would be hard-pressed to find any reference to food in Canadian fisheries regulations.

This absence from the regulatory regime is not as surprising when we consider that the dominant purpose of fisheries in general and their regulation is commercial in nature. The vast majority of fisheries in Canada are caught through commercial licences regulated by the Fisheries Act. The commercial catches were valued in 2015 at over $3 billion. The Act also applies to another commercial endeavour, aquaculture, which produced in 2015 just under $1 billion worth of seafood. While part of fisheries law is aimed at conservation, one can easily argue that, with the exception of species protected under the Species at Risk Act, the goal of conservation is to ensure further commercial exploitation of the resource in the long term. In the fisheries regime, fish are a commercial product, and do not become food until after they are caught and ready for consumption (at which time the Food and Drug Act regime comes into play for quality control).

Then why does it matter that fisheries regulations do not reference food? It matters because the way laws are constructed and the inclusion of stated purposes can greatly influence their implementation by the executive and their interpretation by the courts. In other words, the law views fish as a resource, a dollar value, not as food. The current commercial mindset of fisheries law, even if somewhat tempered by its (weak) conservationist goals, is in part responsible for the sharp decline in fish stocks. This decline has and will continue to have significant environmental and social impacts. One of them is food security as many individuals and cultures depend on fisheries for survival. This issue is largely absent from the legal discourse in this field, and from the management of fisheries. Not including food in the law matters because we end up ignoring the primary function of fishing, nourishment, to favour an environmentally destructive paradigm.

As parliamentarians consider reforms to the Fisheries Act to increase fish conservation, it is time to consider changing the law to rectify the situation and integrate food security as a core concept and purpose of the Act. Food security in this context would mean that fisheries should be managed in a way that allows people who depend on fish for various reasons to have physical and economic access to sufficient, safe and nutritious seafood (based on the FAO definition). This should shift the preoccupation of the Department of Fisheries and Oceans away from “commerce” and back towards the main purpose of fisheries. Food security as a concept would also be highly compatible with conservationist goals (which should remain central), both in its need to ensure continuous (thus long term) access to fish, but also in ensuring fish quality (which depends greatly on their health). In a sense, we would replace greed by need. Such a shift would be a colossal change in the legal framework of fisheries, but given what is at stake, and given the state of fish stocks, such a change is sorely needed.

Of Diversity and Balancing of Rights: TWU v LSUC

The legal profession is not the most diverse of profession. For the longest time it was reserved for white cis men with enough financial mean to survive legal training. It has slowly opened its door to white cis women (although there are still issues, especially in the private sector). It is still very white and cis-hetero normative however.[1] There are probably many causes for the homogeneity of the legal profession (financial barrier to access the profession, hiring biases in large firms, the image of the profession, etc). The Law Society of Upper Canada (LSUC) is at least currently considering ways to increase diversity in the profession. While the LSUC is far from having control over all the factors affecting diversity, it does have the power to accredit law schools, and law schools are often viewed as the true gatekeepers of the profession. This power is, however, rarely used as new law schools are a rare thing. Trinity Western University (TWU), a private university that caters to evangelical Christians, is the most recent university so seek accreditation. TWU has an infamous covenant that all students are required to sign. This covenant forbids sexual intimacy except between married heterosexual couples. This unsurprisingly shocked many people including benchers (the decision-makers of the LSUC). Accrediting TWU seemed, at the very least, to go against diversifying the legal profession. The LSUC ultimately rejected TWU accreditation because of its discriminatory covenant. A law suit ensued, pitting equality against freedom of religion. Days before Toronto Pride, the Ontario Court of Appeal (ONCA) upheld the decision of the LSUC.[2] In this post, I shortly expose additional background on the case. I then explore the decision’s treatment of the LSUC’s decision making power. I finish by looking at the ONCA’s approach to the balancing of rights.

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Endangering the Endangered Species Act, 2007

“[T]hroughout the world, species of animals, plants and other organisms are being lost forever at an alarming rate. The loss of these species is most often due to human activities, especially activities that damage the habitats of these species. Global action is required.”[1]

These words are part of the preamble of Endangered Species Act, 2007 (ESA) of Ontario. The ESA was enacted to replace an older version of the legislation protecting endangered species, which provided insufficient protection.[2] However, legislation does not necessarily result in actions. As noted by the Federal Court: “administrative laissez-faire contributes, along with uncontrolled—and irresponsible—human activity, to the destruction of natural habitats and the loss of wildlife species.”[3] Sometimes administrative laissez-faire is not even the biggest problem; sometimes the government actively tries to undermine legislative protection. It is precisely what happened in Wildlands League v Lieutenant Governor in Council.[4] In this case, the government of Ontario granted sweeping exemptions to entire industrial sectors through Ontario Regulation 176/13 (the Regulation), rendering the ESA protection meaningless for countless endangered species. The Regulation was challenged by the Wildlands League and the Federation of Ontario Naturalists. They sadly lost at the Ontario Divisional Court (the decision is being appealed). In this post I will analysed this surprising decision and its flaws. I will look specifically at the two main arguments for the invalidation of the Regulation: the pre-condition for the enactment of the Regulation, and its consistency with the ESA.

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It’s Pride Again – How Fares the T in LGBTQ?

It is the time of the year when people get their rainbow flags out and celebrate sexual diversity. This weekend will be pride in Toronto with all the glitter and the shirtless men it entails. There is a lot of debate surrounding the political aspect of pride, or lack thereof, but that’s not what I want to talk about. I don’t mind pride as it is: a giant queer festival (I have issues with it on some level but I will not explore them here). I usually just let myself get carried by the atmosphere and let the politics behind for a time. Nevertheless, I thought it was a good time to see were we, Canada, were on trans issues (legally speaking). Two years ago, I lamented the foreseeable death of Bill C-279 in a post. The bill was revived at the beginning of the current session of Parliament, but sabotaged in committee with a slew of bathroom panic arguments. Now it will likely die (again), only to be brought back if the next government, after the fall election, actually values the lives of trans people. From that point, let’s see what has happened and will happen for trans rights in Canada.

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Precaution, delegation and aquaculture regulation – Morton v DFO Part 2

“I accept the undisputed evidence that there is some risk posed to Fraser River sockeye from diseases on salmon farms, but I cannot make a determination as to the precise level of risk. Therefore, precaution would suggest assuming that the risk is not insignificant.”[1]

This quote could have been taken directly out of the recent Federal Court decision of Morton v Canada (Fisheries and Oceans) since the issues address by that case are closely related to the ones in front of the Cohen Commission of Inquiry (Cohen) 3 years before.[2] In fact Justice Rinnie recognized this context.[3] It seems, however, that the Department of Fisheries and Oceans (DFO) did not head the wise words of Commissioner Cohen and continued to treat some serious salmon disease – specifically piscine reovirus (PRV) and heart and skeletal muscle inflammation (HSMI) disease – carelessly. But ignoring an issue does not make it go away. Thankfully for the vigilance of Ms. Morton, DFO will now have to rethink some of its approach to aquaculture. In Part 1 of this post, I explored the issues of the standard of review, the precautionary principle, and the reasonableness of the aquaculture fish transfer licence conditions. In this Part, I look at the issue of illegal sub-delegation of discretionary powers, especially in this case when discretion was delegated to the industry. I reproduced the background section of Part 1 below for ease of reference.

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Precaution, delegation and aquaculture regulation – Morton v DFO Part 1

If you have ever spent any significant amount of time on the west coast, you know how important and contentious of an issue salmon fishery is. Salmon fishery is part of the culture of many First Nations and coastal communities. It is a considerable industry, both in terms of commercial fisheries and aquaculture. Its future is uncertain as stocks seem to fluctuate beyond the comprehension of the Department of Fisheries and Oceans (DFO). There is no shortage of causes (diseases, pollution, poor management, climate change, etc), but as the Cohen Commission of Inquiry (Cohen) concluded, none is dominant.[1] Among them is the risk caused by diseases brought in the salmons’ ecosystem through aquaculture. This particular risk is plague by a familiar environmental policy issue: scientific uncertainty. However, as Cohen found, this uncertainty does not in fact diminishes the risks.[2] Last week, the Federal Court rendered a decision specifically on this issue in Morton v Canada (Fisheries and Oceans),[3] a decision that provide some much needed follow up on Cohen’s aquaculture conclusions. In part one of this two parts post I’ll look at the question of judicial review of a strongly circumscribed ministerial discretion, and the use of the precautionary principle in reasonableness review. In the second part I’ll look at the question of sub-delegation of regulatory requirements to industries.

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