Specter v. Nova Scotia (Minister of Fisheries and Aquaculture) et al., (2012) 312 N.S.R.(2d) 346 (SC)

JudgeWood, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateDecember 15, 2011
JurisdictionNova Scotia
Citations(2012), 312 N.S.R.(2d) 346 (SC);2012 NSSC 40

Specter v. N.S. (2012), 312 N.S.R.(2d) 346 (SC);

    987 A.P.R. 346

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. FE.001

Marian and Herschel Specter (appellants) v. Minister of Fisheries and Aquaculture, and Kelly Cove Salmon Ltd. (respondents)

(Hfx. No. 350371; 2012 NSSC 40)

Indexed As: Specter v. Nova Scotia (Minister of Fisheries and Aquaculture) et al.

Nova Scotia Supreme Court

Wood, J.

January 30, 2012.

Summary:

The appellants appealed, pursuant to s. 119 of the Fisheries and Coastal Resources Act, a decision of the Minister of Fisheries and Aquaculture to grant the respondent amendments to three of its aquaculture licenses. The Minister and the respondent brought preliminary motions, pursuant to Rule 12 of the Nova Scotia Civil Procedure Rules, seeking to summarily dismiss the appeal on the basis that it was not filed in time and that the appellants lacked standing.

The Nova Scotia Supreme Court, in a decision reported at 307 N.S.R.(2d) 142; 975 A.P.R. 142, dismissed the motions.

The Nova Scotia Supreme Court dismissed the appeal.

Fish and Game - Topic 184

Fisheries - Aquaculture (incl. fish farming) - Leases and licenses - The appellants appealed, pursuant to s. 119 of the Fisheries and Coastal Resources Act, a decision of the Minister of Fisheries and Aquaculture to grant the respondent amendments to three of its aquaculture licenses - The appellants asserted that the Minister failed to follow the proper procedure in considering the applications - The appellants submitted that the applications ought to have been treated as new applications and not amendments, which would have triggered the provisions of ss. 47 and 48 of the Act - They made this submission on two alternative grounds - First, that there was no authority in the Act to apply for an amendment of the licences and leases - Alternatively, s. 59(2) required the Minister to follow the procedure for a new licence application - The Nova Scotia Supreme Court dismissed the appeal - The Minister followed a process which was very similar, if not identical, to that adopted for new applications - If the appellants were correct and the Minister was required to follow the new application procedures in ss. 47 and 48, the only deficiencies identified were the failure to consult with the Department of Housing and Municipal Affairs and the failure to hold a public hearing - When the Minister received an application for an amendment of a licence or a lease, he had to consider what information would be needed in order to assess the application - Part of that analysis would be to determine the nature and the extent of the consultation to be undertaken - The Minister should consider the questions raised by s. 59(2) and whether the nature of the application was such that the more fulsome procedures for new applications should be followed - Here, if the appellants were correct and the Minister made a determination that he was not required to follow the new application procedures in light of s. 59(2), the court was not prepared to conclude that such a decision was unreasonable - See paragraphs 45 to 65.

Fish and Game - Topic 184

Fisheries - Aquaculture (incl. fish farming) - Leases and licenses - The appellants appealed, pursuant to s. 119 of the Fisheries and Coastal Resources Act, a decision of the Minister of Fisheries and Aquaculture to grant the respondent amendments to three of its aquaculture licenses - The appellants asserted that the Minister's decision violated s. 3 of the Aquaculture Licence and Lease Regulations - The appellants argued that the use of the word "shall" in s. 3(1)(b) meant that the lease had to have "a water depth of two metres on the shoreward side of the boundary at low tide", and that the site plans attached to the application documents indicated "a minimum water depth of five metres at that point", and that this represented a violation of the Regulation - The Nova Scotia Supreme Court dismissed the appeal - It was clear that the depth requirement in s. 3(1)(b) of the Regulations was intended to be a minimum depth and not the definition of a precise distance that had to exist for every aquaculture lease site in the Province - There was no merit to this ground of appeal - See paragraphs 66 to 68.

Fish and Game - Topic 184

Fisheries - Aquaculture (incl. fish farming) - Leases and licenses - The appellants appealed, pursuant to s. 119 of the Fisheries and Coastal Resources Act, a decision of the Minister of Fisheries and Aquaculture to grant the respondent amendments to three of its aquaculture licenses - The appellants asserted that the Minister failed to engage in a sufficient public consultation process - The Nova Scotia Supreme Court dismissed the appeal - The Minister was satisfied that the nature and extent of the application review process, which covered a period of two years, was sufficient in order for him to make a decision - This was not a situation where a Minister made a decision in the absence of information and where a public hearing might have been essential - The Record disclosed that the Minister obtained a significant amount of information, including submissions both pro and con from the public - In these circumstances, it was not unreasonable for the Minister to forego a public hearing - See paragraphs 69 to 72.

Fish and Game - Topic 184

Fisheries - Aquaculture (incl. fish farming) - Leases and licenses - The appellants appealed, pursuant to s. 119 of the Fisheries and Coastal Resources Act, a decision of the Minister of Fisheries and Aquaculture to grant the respondent amendments to three of its aquaculture licenses - The Nova Scotia Supreme Court dismissed the appeal - When the Minister's approval decision was examined from a global perspective, it appeared reasonable - There were existing aquaculture sites which had operated in Shelburne Harbour for many years - The respondent proposed to move these operations to adjacent sites within the Harbour in order to alleviate some environmental problems that had developed - There were to be some operational changes which would assist in minimizing any negative environmental impacts - These applications were subject to review by Transport Canada, including an environmental assessment, and received the necessary approval under the Navigable Waters Protection Act - The respondent provided extensive technical reports to assist the Minister in assessing the applications - In some instances, the location of the sites was adjusted to respond to concerns of adjacent landowners - Members of the public were aware of the proposed amendments and made submissions to the Minister and the Department - The Minister consulted with a number of government departments and agencies, none of whom expressed any concerns with respect to the applications - See paragraphs 73 to 89.

Cases Noticed:

Brighton et al. v. Nova Scotia (Minister of Agriculture and Fisheries) et al. (2002), 206 N.S.R.(2d) 95; 645 A.P.R. 95; 2002 NSSC 160, refd to. [para. 39].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 41].

Elmsdale Landscaping Ltd. et al. v. Nova Scotia (Minister of Environment) et al. (2009), 284 N.S.R.(2d) 191; 901 A.P.R. 191; 2009 NSSC 358, refd to. [para. 43].

Environmental Resource Centre et al. v. Canada (Minister of the Environment) et al. (2001), 214 F.T.R. 94; 2001 FCT 1423, refd to. [para. 80].

Statutes Noticed:

Aquaculture Licence and Lease Regulations, N.S. Reg. 15/2000, sect. 3 [para. 66].

Fisheries and Coastal Resources Act, S.N.S. 1996, c. 25, sect. 59 [para. 16].

Counsel:

Marc Dunning, for the appellants;

Darlene Willcott, for the respondent, Minister of Fisheries and Aquaculture;

William Moreira, Q.C., and Ian Breneman, for Kelly Cove Salmon Ltd.

This appeal was heard at Halifax, Nova Scotia, on December 15, 2011, by Wood, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 30, 2012.

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4 practice notes
  • Margaree Environmental Association v. Nova Scotia (Minister of Environment), 2012 NSSC 296
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • July 17, 2012
    ...162; 955 A.P.R. 162; 2011 NSSC 134, refd to. [para. 35]. Specter v. Nova Scotia (Minister of Fisheries and Aquaculture) et al. (2012), 312 N.S.R.(2d) 346; 987 A.P.R. 346; 2012 NSSC 40, refd to. [para. Canada (Minister of Fisheries and Oceans) v. David Suzuki Foundation - see Georgia Strait ......
  • Sorflaten v. Nova Scotia (Environment), 2018 NSSC 55
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • March 20, 2018
    ...Nurses’ Union, Justice Robertson cited this quote from Justice Wood in Specter v. Nova Scotia (Minister of Fisheries and Aquaculture), 2012 NSSC 40: 77. It is not the function of this Court, sitting in appeal of the Minister's decision, to review the scientific and technical evidence, and r......
  • Lynn v. Nova Scotia (Lands and Forestry),
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • June 2, 2021
    ...evidence.  Justice Michael Wood, (as he then was) confirmed this point in Specter v. Nova Scotia (Fisheries and Aquaculture), 2012 NSSC 40: [77]           It is not the function of this Court, sitting in appeal of the Minister’s ......
  • R. Baker Fisheries v. Nova Scotia (Fisheries and Aquaculture), 2019 NSSC 321
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • October 24, 2019
    ...The parties agree that the standard of review on a s. 119 appeal is reasonableness: Specter v. Nova Scotia (Fisheries and Aquaculture), 2012 NSSC 40.  The Nova Scotia Court of Appeal considered the meaning of reasonableness in Nova Scotia (Attorney General) v. S&D Smith Central Sup......
4 cases
  • Margaree Environmental Association v. Nova Scotia (Minister of Environment), 2012 NSSC 296
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • July 17, 2012
    ...162; 955 A.P.R. 162; 2011 NSSC 134, refd to. [para. 35]. Specter v. Nova Scotia (Minister of Fisheries and Aquaculture) et al. (2012), 312 N.S.R.(2d) 346; 987 A.P.R. 346; 2012 NSSC 40, refd to. [para. Canada (Minister of Fisheries and Oceans) v. David Suzuki Foundation - see Georgia Strait ......
  • Sorflaten v. Nova Scotia (Environment), 2018 NSSC 55
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • March 20, 2018
    ...Nurses’ Union, Justice Robertson cited this quote from Justice Wood in Specter v. Nova Scotia (Minister of Fisheries and Aquaculture), 2012 NSSC 40: 77. It is not the function of this Court, sitting in appeal of the Minister's decision, to review the scientific and technical evidence, and r......
  • R. Baker Fisheries v. Nova Scotia (Fisheries and Aquaculture), 2019 NSSC 321
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • October 24, 2019
    ...The parties agree that the standard of review on a s. 119 appeal is reasonableness: Specter v. Nova Scotia (Fisheries and Aquaculture), 2012 NSSC 40.  The Nova Scotia Court of Appeal considered the meaning of reasonableness in Nova Scotia (Attorney General) v. S&D Smith Central Sup......
  • Lynn v. Nova Scotia (Lands and Forestry),
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • June 2, 2021
    ...evidence.  Justice Michael Wood, (as he then was) confirmed this point in Specter v. Nova Scotia (Fisheries and Aquaculture), 2012 NSSC 40: [77]           It is not the function of this Court, sitting in appeal of the Minister’s ......

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