Brighton v. Nova Scotia (Agriculture and Fisheries)

Brighton v. Nova Scotia (Agriculture and Fisheries) Court Supreme Court Date 2002-06-21 Citation 2002 NSSC 160 Docket SH 175312 Judge/Registrar/Adjudicator MacDonald, J. Michael (Honourable Associate Chief Justice) (SC) Document Type Decision Relations Library Sheet - Brighton v. Nova Scotia (Agriculture and Fisheries) - 2002 NSSC 160 - 2002-06-21 - Library Sheet Decision Content Date: June 21, 2002 Docket: SH 175312 IN THE SUPREME COURT OF NOVA SCOTIA Cite: Brighton v. Nova Scotia (Agriculture and Fisheries), 2002 NSSC 160 BETEEN: RACHEL BRIGHTON, of Northwest Cove, in the County of Lunenburg; JOANNE CARLOS, of Southwest Cove, in the said County; PETER COBBOLD, of Northwest Cove aforesaid; JOHN DUNSWORTH, of Southwest aforesaid; LAURA DUNSWORTH, of Southwest Cove aforesaid; PHILIP GUEST, of Hubbards, in the County of Halifax, ARNOLD HARNISH, of Mill Cove, in the County of Lunenburg; PHILIP LAMONT, of Southwest Cove aforesaid; OLYMPIO MARTINS, of Northwest Cove aforesaid; LANCE MILLER, of Northwest Cove aforesaid; CAROL VAUGHAN, of Southwest Cove aforesaid, and ALAN WILSON, of Southwest Cove aforesaid Applicants -and- HER MAJESTY THE QUEEN IN THE RIGHT OF THE PROVINCE OF NOVA SCOTIA, represented in this behalf by the Minister of Agriculture and Fisheries, and AQUAFISH TECHNOLOGY INCORPORATED, a body corporate Respondents DECISION (Appeal) Heard before: The Honourable Associate Chief Justice Michael MacDonald on April 10, 2002 at Halifax, Nova Scotia Decision Released: June 21, 2002 Counsel: A. William Moreira for the Appellants Edward A. Gores for the Respondent Crown James J. White for the Respondent Aquafish Technology Incorporated MacDonald, A.C.J.: [1] A group of concerned citizens has appealed the Minister of Agriculture and Fisheries’ decision to allow a fin fish farm in Northwest Cove, Lunenburg County. BACKGROUND [2] In September of 1999, Aquafish Technology Incorporated (“Aquafish”) applied to the Nova Scotia Department of Fisheries and Aquaculture (the “Department”) under the Fisheries and Coastal Resources Act, S.N.S. 1996, c.25 (the FCRA) for a license and lease to operate a fin fish net cage aquaculture farm in Northwest Cove, near Horse Island. The proposed site is proximate to Aquafish’s existing “Tilley Cove” operation. Following the submission of copious documentation and a detailed review by the Department, the Minister, in July of 2001, announced his approval of the project. The relevant lease and license, with detailed conditions were issued on October 18, 2001. [3] At paragraph 5 of their brief, the Appellants have conveniently listed the various “milestones” in the process: 5. Various milestone dates during the course of consideration and processing of this application were: Sept 7/99 Application filed Jan 6/00 Public meeting called by Provincial Department Mar 13/00 (?) First screening level environmental assessment filed May 9, 2000 Second screening level environmental assessment filed January 4, 2001 Third screening level environmental assessment filed April 20, 2001 DFO issues results of its review of third environmental assessment July 26, 2001 Provincial Department says in a press release that “the proposed site has been given the go-ahead...” October 18, 2001 Provincial Department issues the Lease and Licence which are the subject of this appeal November 16, 2001 This appeal commenced [4] Section 119 of the Act provides for the subject Appeal: 119 (1) A person aggrieved by a decision of the Minister may, within thirty days of the decision, appeal on a question of law or on a question of fact, or on a question of law and fact, to a judge of the Supreme Court of Nova Scotia and the decision of that court is final and binding on the Minister and the appellant, and the Minister and the appellant shall take such action as may be necessary to implement the decision. (2) The decision of the court pursuant to subsection (1) is final and there is no further appeal to the Nova Scotia Court of Appeal. 1996, c. 25, s. 119. ISSUES [5] The parties have identified several issues as follows: 1. Whether the Appellants are “aggrieved persons” so as to trigger my jurisdiction to hear this Appeal, 2. Whether the Appeal was filed within the prescribed 30 day period, and if not whether I should allow an extension. 3. The appropriate standard of review when considering the Minister’s decision. 4. In applying the appropriate standard of review, should the Minister’s decision be : a. set aside, or alternatively, b. should the conditions be amended? [6] I will deal with each issue in order. 1. Are the Appellants “aggrieved persons”? [7] Because the Appellants filed no documentation to show that they have been directly prejudiced by this decision, the Respondent Crown suggests that they do not meet the threshold of “aggrieved persons” so as to have standing to prosecute this Appeal. I reject this submission. One need look no further than to the voluminous record to quickly realize that the Appellants were most interested in the outcome of this application and directly involved in the process. In fact the Minister saw fit to write many of them personally when his decision was announced (Volume IV, Tab 449). Given the scope of the FCRA generally and the circumstances surrounding this process in particular, the Appellants meet the standard contemplated under s. 119. They have standing to process this Appeal. 2. The Timeliness of the Appeal [8] As noted the Minister decided to grant the license and lease in July of 2001. Upon doing so, he issued a press release and wrote directly to many of the residents. The Crown argues that this triggered the 30 day appeal period. The Appellants, on the other hand, assert that the clock could only begin to run when the announcement was made official by the actual issuing of the lease and licence. This was on October 18, 2001, thereby making the November 16th filing timely. [9] Again, I decide this issue in favour of the Appellants for the following reasons: While the Appellants knew in July of 2001 that the project would be approved and that there would be “progressive” conditions, the details of these conditions were not official until the documentation was actually released in October. It is agreed by all that these conditions formed an important part of the Minister’s decision. The Minister relies on them to justify his decision and the Appellants seek to amend them as alternative relief. In order for the Appellants to make a reasoned decision on whether to appeal, they would have to know exactly what it is they would be appealing. This was not known until October 18, 2001 when the actual documents with conditions were issued. For the purposes of s. 119, I find this to be the triggering date. [10] The Appeal is therefore timely and there is no need for me to extend the filing time. 3. The Appropriate Standard of Review [11] Before considering the merits of the Minister’s decision, I must consider the level of deference (if any) it deserves. In other words, I must assess the scope of judicial review. In fact, I view this as the most important issue before me. [12] On one hand, the Appellants assert that because this is an appeal, it is essentially a decision de novo allowing me to replace the Minister’s decision with what I would have done had the decision been up to me. On the other hand the Crown submits that the impugned decision is the result of ministerial discretion, following an exhaustive review. It would therefore command significant deference despite the right to appeal. It maintains that for me to decide otherwise would effectively transform the Court into an “academy of science”. Given its importance to my ultimate disposition, this issue therefore requires a detailed review. [13] At the outset, it is important to note that, despite the statutory appeal, my role is essentially to review a minister’s discretionary decision. Section 48 of the Act identifies this discretion: Issue of Licences 48 After completing the consultation referred to in clause 47(a) and after receiving a recommendation, if any, from a regional aquaculture development advisory committee pursuant to clause 47(b), the Minister may (a) issue the aquaculture licence or aquaculture lease; (b) issue the aquaculture licence or aquaculture lease, subject to any conditions the Minister deems appropriate (c) refer the application to a public hearing; or (d) reject the application for the aquaculture licence or aquaculture lease. [Emphasis added] [14] In the face of such ministerial discretion, I find that an appeal court should not simply substitute its opinion for that of the decision maker. I say this based, in large measure, on recent jurisprudence from the Supreme Court of Canada. [15] Specifically, there have been four Supreme Court of Canada decisions offering guidance in this area. [16] In Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, the Supreme Court of Canada assessed the “standard of review” for the British Columbia Competition Tribunal. Moving away from the more rigid approach previously taken, the Court introduced a pragmatic and functional approach; explaining the range of standards available as a spectrum with a more exacting end and a more deferential end. In Southam, the statute governing the tribunal did not have a privative clause and indeed provided a right of appeal. At paragraph 32, Iacobucci J. stated: Where the statute confers a right of appeal, an appellate court need not look to see whether the tribunal has exceeded its jurisdiction by breaching the rules of natural justice or by rendering a decision that is patently unreasonable. The manner and standard of review will be determined in the way that appellate courts generally determine the posture they will take with respect to the decisions of courts below. In particular, appellate courts must have regard to the nature of the problem, to the applicable law properly interpreted in the light of its purpose, and to the expertise of the tribunal. [17] Further, discussing the lack of privative clause, at paragraph 46 Iacobucci J. added: That Parliament granted such a broad, even unfettered right of appeal, as if from a judgment of a trial court, perhaps counsels a less-than-deferential posture for appellate courts than would be appropriate if a privative clause were present. However, as this Court has noted several times recently, the absence of a privative clause does not settle the question. [18] These statements were made in the face of appeal provisions more liberal than those of the FCRA. Interestingly, Iacobucci J., in Southam, found the expertise of the tribunal to be the most significant criteria. Referring to other Supreme Court of Canada decisions, such as United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, he noted at paragraph 50: Expertise, which in this case overlaps with the purpose of the statute that the tribunal administers, is the most important of the factors that a court must consider in settling on a standard of review. [19] Ultimately at paragraph 28, the Court settled on the standard of reasonable simpliciter: In other words, a court, in reviewing the Tribunal’s decision, must inquire whether that decision was reasonable. If it was, then the decision should stand. Otherwise it must fall. [20] In 1998, the Supreme Court of Canada decided Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1S.C.R. 982. This case sets out, in clear terms, the factors to be considered in determining the “standard of review”. They are: 1. Whether there is a privative clause 2. The expertise of the decision maker 3. The purpose of the Act as a whole and the provision in particular 4. The nature of the problem: A question of law or fact [21] Again the Court emphasized that the absence of a privative clause does not imply a high standard of scrutiny, where the other factors would suggest a lower one. At paragraphs 32 and 35 it again emphasized the significance the decision maker’s expertise: 32 Described by Iacobucci, J. in Southam, supra, at para. 50, as “the most important of the factors that a court must consider in settling on a standard of review”, this category includes several considerations. If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of deference will be accorded. In Southam, the Court considered of strong importance the special make-up and knowledge of the Competition Act tribunal relative to a court of law in determining questions concerning competitiveness in general, and the definition of the relevant product market in particular... 35 In short, a decision which involves in some degree the application of a highly specialized expertise will militate in favour of a high degree of deference, and towards a standard of review at the patent unreasonableness end of the spectrum. [22] The Supreme Court further took the opportunity to consider the “standard of review” for a government Minister’s decision in Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281. In Mount Sinai, the Court recognized that ministerial decisions of a discretionary nature have ordinarily been accorded very high levels of deference. Citing Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2 L’Heureux-Dubé, J. states at paragraph 56: The pragmatic and functional approach can take into account the fact that the more discretion that is left to a decision-maker, the more reluctant courts should be to interfere with the manner in which decision-makers have made choices among various options. [23] At paragraph 58, she continues: Decisions of Ministers of the Crown in the exercise of discretionary powers in the administrative context should generally receive the highest standard of deference, namely patent unreasonableness. This case shows why. The broad regulatory purpose of the ministerial permit is to regulate the provision of health services “in the public interest”. This favours a high degree of deference, as does the expertise of the Minister and his advisors, not to mention the position of the Minister in the upper echelon of decision makers under statutory and prerogative powers. The exercise of the power turns on the Minister’s appreciation of the public interest, which is a function of public policy in its fullest sense. [24] The Court in Maple Lodge Farms went on to hold that the “standard of review” required was that of patent unreasonableness; albeit in the absence of a privative clause or an expressed right of appeal. [25] Finally, the Supreme Court returned to this issue in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] S.C.J. No. 3. In a unanimous judgement, the Court held that a reviewing court should adopt a deferential position with regard to ministerial decisions, setting them aside only if they were patently unreasonable (in the sense of being either arbitrarily or rendered in bad faith). It emphasized that a reviewing court should not re-weigh the factors or interfere merely because it would have come to a different conclusion. [26] Following the test laid out in Southam and Pushpanathan, the Court in Suresh concluded that the ultimate question is what the legislature intended. Of unique importance to the case at bar, is that the ministerial discretion under review in Suresh came from the Immigration Act. Significantly, that legislation (as interpreted by the Supreme Court), like the FCRA, provides for an appeal, albeit only with leave. Nonetheless the Supreme Court in Suresh concluded that decisions involving ministerial discretion were to be reviewed on the standard of patent unreasonableness. In other words, to be set, aside such decisions would have to have been made arbitrarily, in bad faith, without evidentiary support, or where the Minister failed to consider the relevant factors. In reaching this conclusion the Court, at paragraph 38, compared its role to that of government: This standard appropriately reflects the different obligations of Parliament, the Minister and the reviewing court. Parliament’s task is to establish the criteria and procedures governing deportation, within the limits of the Constitution. The Minister’s task is to make a decision that conforms to Parliament’s criteria and procedures as well as the Constitution. The court’s task, if called upon to review the Minister’s decision, is to determine whether the Minister has exercised her decision-making power within the constraints imposed by Parliament’s legislation and the Constitution. If the Minister has considered the appropriate factors in conformity with these constraints, the court must uphold her decision. It cannot set it aside even if it would have weighted the factors differently and arrived at a different conclusion. [27] Having reviewed these four leading Supreme Court of Canada decisions, I will now apply the four factors enunciated in Southam and Pushpanathan, to the facts at Bar. The Lack of a Privative Clause [28] The FCRA provides a right of appeal similar to that in the Immigration Act where in Suresh the Supreme Court directed a patently unreasonable test. Like the Immigration Act, the FCRA has no privative clause, and under the FCRA, the appeal is limited to “either fact, law or mixed fact and law”. Interestingly, the FCRA allows no further appeal from my decision. I find this to be significant. Had the legislature intended me conduct a hearing de novo (as the appellants contend) then one would expect a corresponding right to appeal my decision. Therefore, despite the lack of a privative clause, I see my role as more supervisory in nature. In turn, this would command a higher level of deference. The Minister’s Expertise [29] The next factor to consider is the relative expertise of the decision -maker. As stated earlier, this is arguably the most significant factor favoring deference. When considering this factor in Suresh the Supreme Court considered not only the Minister’s personal expertise, but also that of his/her advisors. Significantly s. 47 of the FCRA provides for broad consultation: 47 Before making a decision with respect to the application, the Minister (a) shall consult with (i) the Department of Agriculture and marketing, the Department of the Environment, the Department of Housing and Municipal Affairs and the Department of Natural Resources, and (ii) any boards, agencies and commissions as may be prescribed; and (b) may refer the application to a private sector, regional aquaculture development advisory committee for comment and recommendation. [30] Of course, the greater the level of expert consultation, the higher the level of deference. In the case at bar, there was significant input from many experts. Legislative Purpose [31] The next factor is the purpose of the Act as a whole and of the impugned provision in particular. The Act’s purpose is set out in Section 2: 2 The purpose of this Act is to (a) consolidate and revise the law respecting the fishery (b) encourage, promote and implement programs that will sustain and improve the fishery, including aquaculture; (c) service, develop and optimize the harvesting and processing segments of the fishing and aquaculture industries for the betterment of coastal communities and the Province as a whole; (d) assist the aquaculture industry to increase production; (e) expand recreational and sport-fishing opportunities and ecotourism; (f) foster community involvement in the management of coastal resources; (g) provide training to enhance the skills and knowledge of participants in the fishery, including aquaculture; (h) increase the productivity and competitiveness of the processing sector by encouraging value-added processing and diversification. 1996, c.25. s.2. [32] These purposes suggest inter alia an intention to promote the aquaculture industry while balancing other interests such as tourism and the environment. As stated in Pushpanathan, where the purpose seems to be more political than legal, then the appropriateness of court supervision diminishes. This therefore suggests a high level of deference in the case at bar. The Nature of the Problem [33] The last factor involves the nature of issue facing a particular tribunal; the more factual in nature, the higher the level of deference . In the case at bar, the Minister’s decision was primarily factual. It involved a scientific review followed by a factual determination as to the merits of the application. This involved balancing the promotion of the aquaculture industry against environmental and community concerns. Therefore, in the case at bar, this criterion also suggests a high level of deference. Standard of Review - Conclusion [34] Considering all these factors and applying the guidance provided by the above mentioned Supreme Court of Canada decisions, (particularly Mount Sinai and Suresh), I find the appropriate standard of review in the case at Bar to be at least reasonableness simpliciter if not patent unreasonableness. Given the importance of respecting a Minister’s discretion, I say this even in the face of the relevant appeal provisions. 4. Merits of the Minister’s Decision Should it be set aside? [35] Having reviewed the detailed record and the able submissions of counsel, I am not prepared to set the Minister’s decision aside. In the circumstances, this decision was not unreasonable. It was the product of an extremely comprehensive consultative process. A public hearing was held pursuant to S. 48(c) of the Act. A full environmental assessment (that supported the project)was produced (Volume I, Tab 20). It satisfied not only the issuing Minister, but also other provincial government departments (Volume I, Tab 44). As well the project was approved by the Federal Minister of Fisheries and Oceans following that department’s independent review under the Navigable Waters Protection Act, R.S.C. 1985, c.N-22 (Volume II, Tab 93). This voluminous record clearly establishes that the Minister had a reasonable basis for his conclusion. [36] Furthermore, there is nothing to suggest that the Minister’s decision was either arbitrary or exercised in bad faith. [37] In reaching this conclusion, I have considered the Appellants’ submissions both individually and cumulatively. I will briefly summarize most of them. [38] The Appellants suggest that the decision was based upon irrelevant considerations such as sending a message to the Federal Government and the business community that licenses would be granted even in the face of strong community opposition. They cite examples at paragraphs 23 to 25 of their brief: 23. The Briefing Note to the Minister is at Record, Vol. 1, Tab 33. It states in part: “Aquaculturists outside of Nova Scotia, who have been investing in the province over the past two years, are looking for a signal of support from the province. Issuing this site demonstrates the province’s recognition that aquaculture is a legitimate user of the coastal resources.” 24. A document headed “Advice to the Minister, CONFIDENTIAL”, at Record, Vol 1, Tab 34, states in part: “We have been asking DFO to be fair to aquaculture and to allow it to develop. Approving this site in the face of opposition will demonstrate our commitment to our position with the federal government. Issuing this site will increase investor confidence in the Nova Scotia aquaculture industry by outside companies. Access to new sites has been identified as the #1 impediment to future growth of the industry. A positive response will curtail momentum of those who simply don’t want aquaculture in their yard.” 25. Somewhat more pointed advice to the Minister is found in an email from Greg S. Roach (Aquaculture Executive Director Fisheries and Aquaculture Service) to Leo J. Muise (Director Aquaculture) dated July 24, 2001 (Record, Vol. 1 Tab 36, last page): “I would suggest adding these bullets to the one pager: A positive response to NWC will curtail the momentum of those who simply don’t want aquaculture on their areas (NIMBY syndrome) and think they can get rid of legitimate operators by mounting a smear campaign or political lobby. The dept has been pressuring DFO to be fair to Aquaculture in NS and allow it to develop. Approving this site in the face of strong local opposition and political pressure will demonstrate to the federal government that we talk the talk and walk the walk.’” [39] When placed in context, these remarks (although not directly attributable to the Minister) are not necessarily irrelevant considerations. The Government of Nova Scotia has identified a properly regulated fish farming industry as representing potential economic growth. These comments depict the government’s determination to encourage this industry even in the face of strong opposition by local residents. Whether this represents sound government policy is a question for the electorate and not the Courts. [40] The Appellants also suggest bad faith on the part of Government in that Aquafish’s approval was a foregone conclusion thereby rendering the public hearings meaningless. At paragaraph 29 of their brief, they refer to the following e-mail from Mr. Alan Chandler who chaired the public meeting on behalf of the Minister: 29. On January 7, 2000, the day following the public meeting, Alan Chandler, who had chaired the meeting, reported by email to (among others) Mr. Muise as follows (Record, Vol 2, Tab 140): “I briefed Peter extensively on the hearing. My message was that the site should proceed for all the reasons we have discussed in the past...” It is submitted that if senior officials of the Provincial Department had “discussed in the past” reasons why, and having heard local opposition had decided that, “the site should proceed” even before materials necessary to support the application were in hand, the decision-making process has been demonstrated to have been “not in good faith” and the Court should overturn the impugned decisions for this reason alone. [41] The fact that servants within Government may have expressed earlier opinions does not taint the Minister’s decision making process. Before the Minister made his final decision, he ordered a full environmental assessment, a public hearing and met personally with concerned citizens. These are all indicators of an open and impartial process. [42] The Appellants further highlight what they term as the “overwhelming community opposition” to this project with corresponding minimal economic advantage. There is no doubt that the Minister’s decision was extremely controversial. However not every controversial decision is necessarily unreasonable. Again this decision reflects government policy to promote this fledgling industry even in the face of intense community opposition. It is also clear that the Minister viewed the economic advantages from a province-wide as opposed to a local community perspective (Volume IV, Tab 446). [43] The environmental assessment contained in the Jacques Whitford Report has come under a detailed attack by the appellants and other concerned citizens. (Paragraphs 42 to 45 of the Appellants’ brief; exhibit “C” of the Philip Lamont affidavit). A project of this type has, by its very nature, wide ranging repercussions. It raises a myriad of environmental, social, and economic concerns. While not as detailed and or as definitive as the Appellants would like, this report is nonetheless very comprehensive and detailed. Despite the Appellants’ spirited and articulate objections, I find that it was not unreasonable for the Minister to rely on this report when making his decision. [44] The Appellants also argue the Minister with this decision is embarking on a dangerous leap of faith with too many unanswered questions. In short, they submit that he should have “erred on the side of caution” as prescribed by both the preamble and s. 30 of the Oceans Act S.C. 1996, c.31. I agree with the Appellants that whether legislatively directed or not, the Minister is under a duty to proceed cautiously in circumstances such as these. However, considering the limited term of the license, the stringent conditions, and the ongoing monitoring provisions, I find that the Minister has in fact proceeded cautiously. [45] In short, I find that there is nothing either individually or cumulatively to suggest that the Minister acted unreasonably in making his, albeit highly controversial, decision. I repeat that it is not for the Courts to impose what it would do. As a matter of policy, courts cannot usurp the function of government and become “academies of science”. Should the conditions be amended? [46] Furthermore, I find that it would be equally inappropriate for me to amend the Minister’s conditions. Despite the statutory right of appeal, they are discretionary and to be what he “deems appropriate” [S. 48(b) of the FCRA]. [47] I have already found these conditions to be stringent. They total 53 in number. [48] Without repeating all of them, the more important safeguards include: a. A three year performance review with Province’s right to cancel should the Province “in its sole discretion” conclude the performance to be unsatisfactory. (clause 3) b. Strict controls over the size of stock and handling of waste combined with ongoing video monitoring. (Conditions 1 to 9) c. Strict controls over and monitoring of diseases and consequential mortalities.(Conditions 26 to 29 and 36) d. Monitoring results to be provided not only to Government but also to the community liaison committee (condition 53) e. Environmental sensitivity training for employees.(condition 44) [49] Considering their scope and detail, these conditions are not unreasonable from the Court’s perspective. It would be inappropriate to tinker with them in the circumstances. DISPOSITION [50] The Appeal is dismissed. I trust the parties can agree on costs. Otherwise, I invite your written submissions by June 28th, 2002. When the issue of costs is resolved, I expect counsel for Respondent Crown to present the order, (after counsel for both Aquafish and the Appellants have consented as to form). Michael MacDonald Associate Chief Justice