Precaution Over Profit: Federal Court Upholds Decision to Maintain Elver Fisheries Quota

This judicial review application challenged the decision of the Regional Director General to maintain the Total Allowable Catch (TAC) for the 2024 elver fishery at 9,960 kg. The Federal Court ruled that the decision was reasonable, as it was based on a precautionary approach and uncertainties related to the American eel population and unauthorized fishing. The applicants’ claims of procedural unfairness and improper influence from the Species at Risk Act were rejected.

Administrative law – Decisions reviewed – Minister of Fisheries – Licences – Judicial review – Procedural requirements and fairness – Standard of review – Reasonableness – Correctness

South Shore Trading Co. v. Canada (Minister of Fisheries, Oceans and Coast Guard), [2025] F.C.J. No. 308, Federal Court, February 19, 2025, R.F. Southcott J.

The case of South Shore Trading Co. v. Canada (Minister of Fisheries, Oceans and Coast Guard) (2025 F.C.J. No. 308) involved a judicial review concerning a decision by the Regional Director General (RDG) on behalf of the Minister of Fisheries, Oceans and the Canadian Coast Guard (the Minister). The RDG maintained the Total Allowable Catch (TAC) for the 2024 season at 9,960 kg for the elver (glass eel) fishery. The applicants—South Shore Trading Co. Ltd., Canadian Committee for a Sustainable Eel Fishery, Inc. (CCSEF), and NovaEel Inc.—sought a judicial review of the decision, challenging its fairness and reasonableness.

By way of background, the elver fishery in Atlantic Canada has grown significantly in recent years due to demand in Asian markets, with the value of the fishery increasing from $19 million in 2017 to $45 million in 2022. However, concerns over the conservation of the American eel, designated as a threatened species, have influenced the management of the fishery. In 2005, to support conservation efforts, the TAC of elver was reduced by 10%, to 9,960 kg. In addition, the fishery faced issues with unauthorized harvesting and violence, leading to temporary closures in 2020 and 2023.

In early 2024, the RDG made a decision to maintain the TAC at 9,960 kg for the 2024 season (the “Decision”), following a recommendation from Fisheries and Oceans Canada (DFO). This decision was based on the balancing of a number of different priorities, including uncertainties regarding the health of the American eel population, unauthorized harvesting, and ongoing initiatives to improve fisheries management, including increased Indigenous participation and better traceability of harvested elvers.

The applicants, represented by South Shore Trading Co., challenged the Decision. The Federal Court considered the Decision on several grounds raised by the Applicants:

1.  Procedural Fairness: The applicants argued that they were not afforded procedural fairness or natural justice, as there was no consultation regarding the TAC for the 2024 season.

2. Reasonableness of the Decision: The applicants contended that the decision to maintain the TAC at 9,960 kg was unreasonable given scientific data suggesting that increased harvesting could be sustainable without harming the American eel population. They also argued that increasing the TAC would reduce unauthorized fishing, which in turn could contribute to reconciliation with Indigenous communities.

3. Effect of the Species at Risk Act (SARA): The applicants highlighted that the American eel had been assessed as threatened by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) and was being considered for listing under SARA. They argued that the pending decision on the SARA listing was improperly influencing the TAC decision.

The applicants sought a number of orders, including quashing the Decision, referring the matter back to the decision-maker for redetermination, in the alternative a declaration that the Decision was unreasonable and/or incorrect (depending on the applicable standard of review), and costs.

The Federal Court dismissed the application for judicial review, finding that there were no reviewable errors in the RDG’s decision.

With regard to the issue of Procedural Fairness, the court set out that issues relating to procedural fairness and natural justice are subject to the standard of correctness. Put otherwise, the Court’s role is to assess whether the process followed was fair, considering all applicable circumstances. However, in this case, the court determined that no duty of procedural fairness was owed to the applicants because the decision to set the TAC was a discretionary policy decision, to which common law principles of procedural fairness do not apply. The Fisheries Act did not mandate any specific procedural fairness requirements in relation to setting the TAC, and the applicants failed to demonstrate that they had legitimate expectations of consultation.

The court turned to the merits of the decision, determining that the Decision must be assessed on a standard of reasonableness. The court held that the Decision was reasonable, as it was based on a precautionary approach, as embedded in the Fisheries Act. The focus of the precautionary approach is to achieve the exercise of more caution when information is uncertain and, where appropriate, to ensure that steps are taken to prevent irreversible harm, even when the potential risk of causing harm is uncertain. As the Decision was grounded in the uncertainties surrounding the American eel population and the impacts of unauthorized harvesting, the precautionary approach was applied. The court also considered that the Decision relied on a memorandum from the DFO which clearly explained the rationale for maintaining the TAC. While the applicants had referred to scientific data supporting increased harvesting, the court noted that the decision-makers had considered this data and balanced it against the risks posed by unauthorized fishing and other conservation concerns. The court emphasized that decision-makers in fisheries management are entitled to significant deference when making discretionary policy decisions, particularly when applying the precautionary principle to conservation issues. Against that backdrop, the court held that the reasoning underlying the Decision was transparent and intelligible, and there was no basis to conclude that it was unreasonable simply because it maintained the TAC at the same level as previous years.

Lastly, the court rejected the argument that the pending decision on the SARA listing was improperly influencing the TAC decision. The court acknowledged that the COSEWIC assessment and potential SARA listing were factors in the decision, but they were not the sole or primary reasons. The court held that it was reasonable for the decision-makers to consider these conservation-related factors.

In conclusion, the Federal Court upheld the RDG’s decision to maintain the TAC at 9,960 kg for the 2024 season. The court found that the applicants had not been denied procedural fairness, that the decision was reasonable given the context of conservation and management uncertainties, and that the pending decision on the SARA listing was a relevant consideration but not a determinative factor.

The application for judicial review was dismissed, and the applicants were ordered to pay costs of $5,000 to the respondents.

This case was digested by Emma Jerrott of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please feel free to contact her directly at [email protected].