26 May 2005

The Constitutional Fish

Meanwhile in the Supreme Court of Newfoundland and Labrador (Appeals Division?), some enterprising lawyer is seeking a ruling on whether or not the Government of Canada has the right:

1. To regulate what is commonly known as the food or recreational fishery; and,

2. Even if it does, can the Government of Canada regulate the fishery within the province's boundaries, namely within the three mile limit.

While I am not a lawyer, I enjoy playing one sometimes in the privacy of my own blog.

The argument being presented on behalf of two chaps accused of breaching fisheries regulations hinges on the Terms of Union, which, as we all should know, is part of the Canadian constitution.

Under Term 2, the province is defined as including the same territory as at the date of union. Since Newfoundland and Labrador included a territorial sea of three miles, the province's boundaries extend that far out to sea. This was confirmed by the offshore decisions in the early 1980s.

Under Term 3, the British North America Acts, as amended, apply to the new province as to all others except as provided by the Terms of Union. The BNA Act is now known as the Constitution Act.

Still with me so far?

Section 22 of the Terms of Union specifically address fisheries matters.

22 (2) continues all fisheries laws of the former Dominion of Newfoundland for a period of five years from the date of union and from then on, as amended or repealed by the Government of Canada through the Newfoundland Fisheries Board which became a federal agency. While the NFB had powers over licensing it was created in 1936 to improve markets and the quality of fish exports.

Term 22 also provides that the federal parliament will assume appropriate jurisdiction to amend fisheries laws formerly in force in Newfoundland (before the date of union) but here's the key thing to bear in mind: sections 11, 12, 13 and 18 reinforce Term 3 in providing that the Constitution Act applies to Newfoundland and Labrador.

Under Section 91 of the Constitution Act, the power to regulate coastal fisheries rests with the Government of Canada.

There may be some case law and argumentation I am unaware of that can be used to back up the case being made by the appellant(s). I could also have misunderstood the brief description of the case given on radio this afternoon.

To be frank, on the face of it, this case is going to be a short one. The letter of the law seems pretty clear as to the intention of the framers of the constitution.

In any event, people should keep their eye on this case to see what comes of it once the learned justices of the Supreme Court hear the arguments and then render a judgment.