A-1076-84
Minister of Fisheries and Oceans and Wayne
Shinners, Regional Director General of the
Department of Fisheries and Oceans for the
Pacific Region (Appellants) (Respondents)
v.
Gulf Trollers Association (Respondent) (Appli-
cant)
INDEXED AS: GULF TROLLERS ASSN. V. CANADA (MINISTER
OF FISHERIES AND OCEANS)
Court of Appeal, Urie, Marceau and Hugessen
JJ.—Vancouver, September 16; Ottawa, Novem-
ber 3, 1986.
Fisheries — Salmon fishing in Gulf of Georgia — Species
in decline — Fishery officers restricting open season for com
mercial salmon fishing — Sport fishing unrestricted — Vary
ing close times not administrative but legislative function —
No express limitations in Act nor in Regulations as to purpose
— Federal legislative power over fisheries not limited to
conservation — Socio-economic considerations valid — Fish
eries Act, R.S.C. 1970, c. F-14, s. 34 (as am. by R.S.C. 1970
(1st Supp.), c. 17, s. 4) — Pacific Commercial Salmon Fishery
Regulations, C.R.C., c. 823, s. 5(1) (as am. by SOR/82-529, s.
3(1)) — British Columbia Sport Fishing Regulations,
SOR/82-645 — An Act to amend the Fisheries Act, S.C. 1985,
c. 31.
Constitutional law — Distribution of powers — Fisheries
— Variation of close times for commercial salmon fishing in
effect giving priority to sport fishing — Socio-economic as
well as conservation objective pursued — Varying close times
not administrative but legislative function — No express limi
tations in Act nor in Regulations as to purpose — Federal
legislative powers not limited as to purpose — Courts examine
purpose only if trespass on provincial power alleged — Fisher
ies Act, R.S.C. 1970, c. F-14, s. 34 (as am. by R.S.C. 1970 (1st
Supp.), c. 17, s. 4) — Pacific Commercial Salmon Fishery
Regulations, C.R.C., c. 823, s. 5(1) (as am. by SOR/82-529, s.
3(1)) — Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
(R.S.C. 1970, Appendix II, No. 5] (as am. by Canada Act
1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 1), ss. 91(12), 92.
In 1984, Public Notices were issued by fishery officers
varying the close times for commercial salmon fishing in several
areas of the Gulf of Georgia in British Columbia. While these
new restrictions were imposed on the commercial fishermen,
none were imposed on sport fishermen.
In the Trial Division, certiorari was granted on the basis that
varying close times was an administrative function and that it
exceeded permissible constitutional powers for the appellants to
pursue socio-economic objectives in the allocation of the fish
stock. This is an appeal from that decision.
Held, the appeal should be allowed.
Even though the order appealed from had no practical effect
since it was made when the impugned Public Notices had spent
their effect and even though an amendment to the Fisheries
Act now allows the taking into consideration of socio-economic
factors in the allocation of fishery resources, this case must be
dealt with because it raises the constitutional question of
whether subsection 91(12) of the Constitution Act, 1867
authorizes Parliament to establish close and open times for
catching fish not only for conservation, but also for a purpose of
a socio-economic nature.
The issuing of the Public Notices is not an administrative but
a legislative function. The effect was the creation and promul
gation of a general rule of conduct without reference to particu
lar cases. Since this is a delegated power, it must be ascertained
that it does not extend beyond the limits either expressly set by
the delegating authority or inherent in the power being delegat
ed. There were no express limitations in the Fisheries Act nor
in the Regulations. There remains to be determined whether
the power being delegated (subsection 91(12) of the Constitu
tion Act, 1867) was in itself so limited.
The cases where the fishery power was defined as a power to
"regulate, protect and preserve the fisheries" were all con
cerned with alleged intrusions of the central government into
provincial jurisdiction. They cannot be interpreted as indicating
that Parliament's competence is confined to legislation neces
sary to conserve and protect fisheries to the exclusion of all
other objectives. In fact, a piece of legislation, such as in the
present situation, which can only fall under one class of subject
is not assailable because of the objective, the motive or the
purpose for which it was enacted.
Since the fishery power is not qualified by any restriction as
to the objectives that may be pursued, there is nothing to
prevent Parliament from pursuing social, economic or other
objectives in the management of the fishery, either with or
independently of conservation objectives. Unless the party
attacking legislation on division of power grounds identifies a
possible trespass on a specific law making power of the other
level of government, the purpose for which it was enacted is of
no concern to the Courts.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
The Queen v. Robertson (1882), 6 Can. S.C.R. 52;
Attorney General for the Dominion of Canada v. Attor
neys General for the Provinces of Ontario, Quebec and
Nova Scotia, [1898] A.C. 700 (P.C.); Attorney General
for British Columbia v. Attorney General for Canada,
[1914] A.C. 153 (P.C.); Attorney General for Canada v.
Attorney General for Quebec, [1921] 1 A.C. 413 (P.C.);
Attorney General for Canada v. Attorney General for
British Columbia, [1930] A.C. 111 (P.C.).
COUNSEL:
Gunnar O. Eggertson and D. R. Kier for
appellants.
J. K. Lowes and A. Shields for respondent.
S. B. Armstrong and A. W. Carpenter for
intervenor Pacific Trollers Association.
SOLICITORS:
Deputy Attorney General of Canada for
appellants.
Mawhinney & Kellough, Vancouver, for
respondent.
Lawson, Lundell, Lawson & McIntosh, Van-
couver, for intervenor Pacific Trollers Asso
ciation.
The following are the reasons for judgment
rendered in English by
MARCEAU J.: This appeal is from an order of
the Trial Division [[1984] 2 F.C. 398] quashing
certain Public Notices issued by fishery officers of
the Department of Fisheries and Oceans varying
"close times" for some commercial troll fishing in
the Gulf of Georgia, B.C. The real issue that it
raises is not easily defined in legal terms. As will
appear, the learned Motions Judge saw the
impugned Public Notices as being administrative
decisions and yet determined that they were illegal
because they had been made for a purpose [at
page 408] "beyond permissible constitutional pow
ers". Then, before this Court, the parties were all
agreed that, whether or not the Notices were
classified as administrative in nature, a crucial
constitutional question could be ultimately
involved, a question, in their submission, that
should be dealt with in any event. I will take the
view that, in fact, there is only one issue immedi
ately arising which is a constitutional one, but I
leave it at that for the moment: the difficulty and
the vital importance of defining precisely the ques-
tion to be determined will become apparent once
the particulars of the case are set out.
The Fisheries Act (R.S.C. 1970, c. F-14 as
amended) was enacted by Parliament in the exer
cise of the jurisdiction over "Sea Coast and Inland
Fisheries" conferred upon it by subsection 91(12)
of the Constitution Act, 1867 [30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1)]. Section 34
of that Act provides as follows:
34. The Governor in Council may make regulations for
carrying out the purposes and provisions of this Act and in
particular, but without restricting the generality of the forego
ing, may make regulations
(a) for the proper management and control of the seacoast
and inland fisheries;
(b) respecting the conservation and protection of fish;
(c) respecting the catching, loading, landing, handling, trans
porting, possession and disposal of fish;
(d) respecting the operation of fishing vessels;
(e) respecting the use of fishing gear and equipment;
(/) respecting the issue, suspension and cancellation of
licences and leases;
(g) respecting the terms and conditions under which a lease
or licence may be issued; [R.S.C. 1970 (1st Supp), c. 17,
s. 4]
(h) respecting the obstruction and pollution of any waters
frequented by fish;
(i) respecting the conservation and protection of spawning
grounds;
(j) respecting the export of fish or any part thereof from
Canada;
(k) respecting the taking or carrying of fish or any part
thereof from one province of Canada to any other province;
(1) prescribing the powers and duties of persons engaged or
employed in the administration or enforcement of this Act
and providing for the carrying out of those duties and
powers; and
(m) authorizing a person engaged or employed in the
administration or enforcement of this Act to vary any close
time or fishing quota that has been fixed by the regulations.
Several sets of Regulations have been enacted
by the Governor in Council under the authority of
section 34 of the Fisheries Act. The Pacific Com
mercial Salmon Fishery Regulations [C.R.C.,
c. 823 (as am. by SOR/82-529)] is one of them.
By virtue of the provisions of these Regulations,
salmon fishing by means of trolling is in principle
prohibited in Pacific waters. Since 1982, the "close
time" (when no fishing is allowed) for trolling,
purse seine and gillnet gear is prescribed to be
from January 1 to December 31 (AB41). An
important reservation is however made in subsec
tion 5(1) [as am. idem, s. 3(1)] which provides as
follows:
5. (1) The Regional Director or a fishery officer may vary
any fishing quota or close time set out in these Regulations in
respect of any river, Area or Subarea.
The Public Notices in question in these proceed
ings were issued pursuant to subsection 5(1) of the
Pacific Commercial Salmon Fishery Regulations.
Their object was to vary the period of close time
for troll fishing for some species of salmon. They
declared that the catching and landing of chinook
salmon was permitted from 23:00 hours June 30,
1984 to 24:00 hours August 31, 1984 in the
"Inside Salmon Troll Area", that is to say, mainly
the Strait of Georgia and the Strait of Juan de
Fuca between Vancouver Island and the mainland
of British Columbia.
The owners and operators of fishing vessels
engaged in commercial trolling could only see their
expectations completely frustrated by the issuance
of these Public Notices. In the past, the troll
season for chinook in the gulf had always been
from April 15 to September 30 and, indeed, since
the Regulations had established a close time
extending in principle over the whole year, notices
of variance had been issued each year to allow the
traditional fishing pattern. That pattern was sud
denly being discarded. Not only was the open
season for chinook salmon shortened, it was lim
ited to a period when the fishing of chinook had
traditionaly been marginal for the trollers, their
primary target during July and August being coho,
another species of salmon they were then allowed
to fish. So, they decided to dispute the validity of
the Public Notices and through their associations
commenced the present proceedings for relief in
the nature of certiorari, the Gulf Trollers Associa
tion initiating the application and the Pacific
Trollers Association seeking leave to intervene. (I
will hereinafter for convenience refer to "the
trollers".)
In the Trial Division, the trollers built their case
on the fact that new restrictions on chinook salmon
fishing were being imposed on the commercial
fishermen while no corresponding provisions were
made to restrict other user groups in the fishing
industry, and in particular none were imposed on
sport fishermen. Indeed, the British Columbia
Sport Fishing Regulations [SOR/82-645] enacted
in 1982 at the same time as the Pacific Commer
cial Salmon Fishery Regulations in question here,
limited the close time for sport fishing in the gulf
to only one hour per year, and while there were
individual limitations for sport fishermen as to the
use of certain equipment and the number of fish
that could be caught per day and per year, no
"cutting" of these year round open times had ever
been imposed. The trollers readily acknowledged
that the chinook salmon species, particularly the
native or wild variety, was in serious decline and
that preservation, protection, and rehabilitation
were required to ensure future adequate stocks.
They argued, however, that if the Department's
officers had been influenced solely by consider
ations of preservation and conservation, the com
mercial fishermen would not have been left alone
to pay the price, particularly in light of the fact
that, historically, sport fishermen take more chi-
nook in a given year than the commercial gulf
trollers. Obviously, a desire to favour the sport
fishery over the commercial fishery in allocating
the resource was behind the decisions. In the troll -
ers' submission, this desire to favour sport fishing
may have arisen in perfect good faith and out of a
factually correct view of sport fishing as "a major
economic asset, an indispensable centerpiece in
Canada's national, recreational and tourism indus
tries" (news release from the Ministry of Fisheries
and Oceans, 1984 ABIOS). Nevertheless, such a
concern should not form the basis for a decision
respecting close and open times for fishing made
by a federal authority.
•
The learned Motions Judge agreed. In his rea
sons for judgment, after having confirmed the
facts as alleged by the trollers and endorsed their
contention that the powers of the Federal Minister
of Fisheries and of Parliament in respect of "Sea
Coast and Inland Fisheries" were limited to mat
ters of protection and conservation of the resource,
he expressed briefly the essence of his reasoning as
follows [at pages 407-408]:
The April 16 variations of the total closure were, on the
evidence before me, conceived on two bases: a need for conser
vation, and an intention to favor the sport fishery user of the
resource. The conservation motive was at the "ultimate penal
ty" expense of the commercial inside trollers. The discriminato
ry preference was for the sport fishery. The respondents knew
the cutting of the trollers' season and catch, while permitting
an estimated 30,000 chinook to escape for protection and
conservation purposes, at the same time opened an estimated
60,000 chinook to sport harvest.
The respondents' decisions of April 16 were, to my mind,
prompted by two disparate and pervading reasons: conserva
tion, and socio-economic management allocations.
The second purpose was, in my view, beyond permissible
constitutional powers. The two considerations were inextricably
mixed. In those circumstances the Court cannot segregate. The
decision must fall.
As the learned Judge went on to explain, this was
a clear case of administrative orders made under
the influence of an irrelevant consideration: such
orders simply could not be allowed to stand and
had to be quashed.
I alluded in my opening remarks to the difficul
ty of defining the real issue the Court was asked to
determine on this appeal. Now that the substance
of the decision appealed from and the factual
context in which it was rendered have been
reviewed, this preliminary but foremost difficulty
must be addressed. The difficulty arises from two
particular circumstances affecting the case. The
first one is simple. The learned Trial Judge took
care not to make his order until September 1,
1984, when the impugned Public Notices had
already spent their effect. He did that, of course,
for the sake of the trollers, since by quashing the
Notices he was at once rendering fully operative
the standing Regulations completely prohibiting
troll fishing. His order, however significant it was,
had nevertheless no practical effect, and this is a
fact which cannot be simply ignored.
The second particular circumstance which may
affect the definition of the issue to be resolved is
that the parties have sought and been given leave
to put before the Court the following joint state
ment concerning a "Bill" [Bill C-32, now S.C.
1985, c. 31, assented to June 28, 1985] introduced
into Parliament, on March 6, 1985:
The decision to introduce into the House of Commons Bill C-32
to amend the Fisheries Act which was substantially amended
and is now Chapter 31 S.C. 33-34 Elizabeth II was precipitated
by the decisions of Collier J. in the Gulf Trollers Association
application under Section 18 of the Federal Court Act now
under appeal in these proceedings and in an application by
Fishing Vessel Owners Association of B.C. for an interlocutory
inj unction.
Bill C-32 was introduced into the House of Commons for
several reasons including:
(1) To make express what was thought by those in charge of
administering the fishery to be implicit in the federal
jurisdiction over "sea coast and inland fisheries" granted
under the Constitution Act, 1867, and in the power grant
ed under Section 34 of the Fisheries Act for the Governor
in Council to make regulations inter alia:
(a) for the proper management and control of the sea
coast and inland fisheries; and
(b) respecting the conservation and protection of fish
namely those set out in section 2.1 of the said Bill C-32 which
read as follows:
PURPOSES
2.1 The purposes of this Act are
(a) to provide for the conservation and protection of fish
and waters frequented by fish;
(b) to provide for the proper management, allocation and
control of the sea-coast fisheries of Canada;
(c) to ensure a continuing supply of fish and, subject to
paragraph (a), taking into consideration the interests of
user groups and on the basis of consultation to maintain
and develop the economic and social benefits from the use
of fish to fishermen and others employed in the Canadian
seacoast fishing industry, to others whose livelihood
depends in whole or in part on seacoast fishing and to the
people of Canada; and
(d) to provide for the proper management and control of
the inland fisheries of Canada and, subject to the constitu
tional jurisdiction of the provinces, for the allocation of
those fisheries.
As a result of amendments made in the course of passage of the
said Bill the changes in the Fishery Act which would help to
accomplish these purposes will, unless replaced by further
legislation, cease to be law on January 1, 1987.
In what situation does all this leave the Court?
What is the question the Court is called upon to
determine? The mere upholding or setting aside of
a judicial order which was itself moot when ren
dered would, of course, serve no practical purpose.
The parties can only be interested in the reasons
that lead to the conclusion, if one is sought and
reached. But if the Court accepts the characteriza
tion of the Notices as administrative decisions,
which was adopted by the Trial Judge and not
disputed by counsel, and goes on to form the view,
as urged initially by the respondent, that the fish
ery officers were not authorized by the Regula
tions or the Act as it then stood to give effect to
socio-economic factors as they did, then again, in
view of the amendments to the Act, the decision
would be purely academic. The parties did express
a desire for the Court, in forming its opinion, to
take into consideration the intervention of Parlia
ment in 1985, but it would not be appropriate for
this Court to give a legal opinion on the validity of
legislation not directly involved in the litigation.
For a time, I had serious doubts as to the
necessity for, or at least the propriety of, the
Court's dealing with the case. So long as it was
presented as being merely the case of public offi
cials' unauthorized administrative acts, its con
sideration appeared either inconsequential, the
orders being spent, or useless, a new Act being now
in force. But I see the case quite differently now,
and, as I see it, it raises a constitutional issue
which undoubtedly must be dealt with. Indeed, I
have come to the conclusion that the Public
Notices under attack were not made in the exer
cise of an administrative function, but rather in the
exercise of a regulatory one. We are concerned
with legislative acts, that is to say acts the effects
of which were the creation and promulgation of a
general rule of conduct without reference to par
ticular cases. The issuing of yearly Notices by
fishery officers is part of the process adopted by
Parliament to establish close and open seasons for
fishing as part of the exercise of its power over
sea-coast and inland fisheries. (As to the distinc
tion between administrative and legislative func
tions, see: de Smith's Judicial Review of Adminis
trative Action, (4th ed. 1980, J.M. Evans ed.) at
pages 71 et seq.; H. W. R. Wade, Administrative
Law (4th ed. 1977) at pages 695 et seq.; R. Reid
and H. David, Administrative Law and Practice
(2nd ed. 1978) at pages 142-143.) It is clear that
the trollers' submission has some meaning only
when the Notices are seen not in isolation but as
part and parcel of a whole, which whole comprises
all of the Regulations, including those relating to
sport fishing, as well as to commercial fishing, and
all Notices of variance issued by the proper
departmental authorities. The establishment of
close and open times for fishing is a legislative
function which Parliament has delegated, by sec
tion 34 of the Fisheries Act, to the Governor in
Council and, through the latter, to fishery officers.
Applying this analysis to the circumstances of the
case—and with respect to those circumstances I
accept the findings of fact of the learned Trial
Judge, more particularly the finding that there
was, behind the Department's decisions, not only a
clear purpose of conservation, but also a purpose of
a socio-economic nature, namely that of favoring
the sport fishery in the allocation of the limited
available resource—the issue becomes clearer. It is
trite to say that a delegated power does not extend
beyond the limits either expressly set by the dele
gating authority or inherent in the power being
delegated. Since there were no express limitations
in the Fisheries Act nor in the Regulations as to
the purposes for which the fishery officers could
make use of their delegated authority, the issue is
whether the power being delegated was in itself so
limited. The question to be answered therefore is
whether Parliament, in the exercise of its legisla-
tive competence under subsection 91(12) of the
Constitution Act, 1867,' can establish close and
open times for catching fish not only for the
purpose of conservation, but also for a purpose of a
socio-economic nature.
I should simply say, with respect, that I do not
see how the question as put could be answered in
the negative. The respondent and the intervenor
rest their whole case on statements made by the
Supreme Court and the Privy Council in delivering
judgment in cases involving subsection 91(12) of
the Constitution Act, 1867. They maintain that, in
the very first and leading case of The Queen v.
Robertson (1882), 6 Can. S.C.R. 52, the fishery
power was defined as a power to "regulate, protect
and preserve the fisheries", and that in many
subsequent cases the words "regulation, protection
and preservation" were repeated to focus attention
upon the essential content of the power described
in the words "sea-coast" and "inland fisheries". It
is to be noted, however, that these cases were all
immediately concerned with alleged intrusions of
the central government into spheres of legislative
authority conferred on the provincial legislatures,
in particular into the sphere covered by the power
to regulate property and civil rights, which, as it is
known, led primarily to a distinction between legis
lation with respect to fisheries and legislation with
respect to proprietary rights over fisheries (see in
particular: Attorney General for the Dominion of
Canada v. Attorneys General for the Provinces of
Ontario, Quebec and Nova Scotia, [1898] A.C.
700 (P.C.); Attorney General for British
Columbia v. Attorney General for Canada, [1914]
A.C. 153 (P.C.); Attorney General for Canada v.
Attorney General for Quebec, [1921] 1 A.C. 413
(P.C.) and Attorney General for Canada v. Attor
ney General for British Columbia, [1930] A.C.
111 (P.C.)). In none of these cases was the ques-
I will take the liberty to refer hereinafter only to section 91
or section 92.
tion raised whether, in exercising its jurisdiction
over fisheries, Parliament could pursue socio-eco
nomic objectives. As I read them, the words used
by the judges in those cases to characterize and
better describe the federal power were not intend
ed to indicate authoritatively that Parliament's
competence was confined to legislation necessary
to conserve and protect the fishery to the exclusion
of all other objectives.
In fact, I never understood the distribution of
legislative powers made by sections 91 and 92
between the central Parliament and the provincial
legislatures as having been devised with some
regard to the purpose for which a power could be
exercised. The distribution is made on the basis of
classes of subjects (the statement in the opening
paragraph of section 91 is unequivocal: "it is
hereby declared that ... the exclusive Legislative
Authority of the Parliament of Canada extends to
all Matters coming within the Classes of Subjects
next herein-after enumerated"), each class of sub
ject being defined with reference to specific per
sons, things or activities. The distribution is one of
law-making powers, not one of interests or con
cerns, and I see no immediate legal meaning
behind the phrase "valid federal constitutional
purpose".
A statute, as I see it, can be impugned before
the Courts, on division of power grounds, only if it
introduces legislation with respect to a class of
subject not assigned to the legislative authority
from which it emanates. The difficulty, as is well
known, is that a statute may "introduce legisla
tion" with respect to more than one class of sub
ject, in the sense that it may affect the legal
regime applicable to persons, things or activities
falling into more than one of the classes of subjects
set out. This is so because, not only are the classes
of sections 91 and 92 not mutually exclusive, but
also, and maybe even more importantly, because
the effects of a piece of legislation are often
diverse and complex, some being direct, others
indirect, some immediate, others remote, some
openly desired, others left undisclosed, some readi
ly apparent, others not immediately perceived. In
order to link a particular legislative enactment to
only one of the several classes of subject directly or
indirectly affected by it, and, by so doing, deter
mine which authority had the competence to enact
it, the Courts have been led to compare and deter
mine the relative importance of the several effects
of the challenged legislation and they have done so
at times by reference to what appeared to them to
have been the "purpose" for which it had been
adopted. The "purpose" there in question is that
behind the particular statute involved and it is
brought into the picture only to assess what was
called the "pith and substance", that is the true
meaning or salient effect of that legislation or at
least the effect assigned to it by those who have
enacted it. But, in my view, a piece of legislation
which can only fall under one class of subject, one
head of power, is not assailable because of the
objective, the motive or the purpose for which it
was enacted. (Particularly interesting discussions
on these points are to be found in W. R. Leder-
man, "Classification of Laws and the British
North American Act", Legal Essays in Honour of
Arthur Moxon, (J. Corry, F. Cronkite & E. Whit-
more eds. 1953), at page 183; B. L. Strayer, The
Canadian Constitution and the Courts (2d. ed.
1983), at pages 213 et seq.)
That this is the situation here is clear. The
reference to purpose is not suggested as a means to
go behind the appearance of the particular statute
in order to go to its real effect and thereby deter
mine its proper classification for constitutional
purposes. I do not think it can be seriously con
tended that the regulation of open and close times
for catching chinook salmon may constitute legis
lation falling under a class of subject other than
fisheries. Property and civil rights has been evoked
but I fail to see which property right or other civil
right is being regulated by the establishment of
restrictions on fishing seasons, (if there is some
thing like the right to fish in public waters inher-
ent in every citizen, as suggested by counsel,
whether it be a right to fish for commercial pur
poses or otherwise, it is certainly not a right falling
under subsection 92(13)); nor has it been suggest
ed that some other provincial head of power is
invaded. Of course, it is the pursuit of allocative
objectives in the management of the fisheries
which is objected to, but such allocation, even if
considered independantly of any idea of conserva
tion, does not trench on any provincial power.
The power conferred on Parliament in subsec
tion 91(12) of the Constitution Act, 1867 is not
qualified, in my understanding, by any inherent
condition that it be used to pursue some specific
objectives and not others. Parliament may manage
the fishery on social, economic or other grounds,
either in conjunction with steps taken to conserve,
protect, harvest the reserve or simply to carry out
social, cultural or economic goals and policies. In
fact, in my view, unless and until the party attack
ing legislation on division of power grounds identi
fies a possible trespass on a specific law making
power of the other level of government, the pur
pose for which a piece of legislation was passed is
of no concern of the courts.
I must therefore express, with respect, my disa
greement with the view taken by the learned
Motions Judge. I do not think that the fishery
officers' Public Notices can be said to be illegal for
the reason that they were part of a legislative
scheme adopted in pursuance not only of conserva
tion purposes but also of allocative objectives
founded on social and economic factors. The order
quashing those Notices on the ground that they
were unconstitutional is, in my view, unsustain-
able. I would allow the appeal, set aside the order
of the Trial Division and dismiss the application. I
see no reason to deprive the appellants of their
costs here and in the Court below.
URIE J.: I concur.
HUGESSEN J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.