Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 192
[751] As noted by Mr. Justice Major in the final disposition of Comeau’s Sea Foods by the
Supreme Court of Canada, reported at [1997], 1 S.C.R. 12, section 7 of the Fisheries Act regarding
the Minister’s authority over licences, confers “unique powers” upon that Minister. I refer to paras.
24 and 25 as follows:
The statute expressly provides for the circumstances in which an
issued licence may be revoked but it is silent on the circumstances in
which the Minister may cancel an authorization to issue a licence.
The trial judge and Court of Appeal held that a licence once
authorized is as good as issued. If this is so, once the Minister
authorized the issuance of a licence, he could not revoke the
authorization although he could by virtue of s. 9 revoke the issued
licence.
2010 FC 495 (CanLII)
There is a "gap" in the Fisheries Act to the extent that the text gives
no direction as to whether the Minister can revoke an authorization
previously given. The twofold powers of the Minister under s. 7 date
from the Fisheries Act, S.C. 1868, c. 60, s. 2, and are unique in that
unlike any other federal statute he has both the power to issue the
licence and the power to authorize its issuance.
(Emphasis added)
[752] There is no such special power conferred upon the Minister of Indian and Northern Affairs
under the DIAND Act and the Territorial Lands Act. The Defendant’s reliance upon the Fisheries
Act and the jurisprudence developed relative to the issuances of licences, or otherwise, under that
statutory regime cannot succeed.
[753] This case is also distinguishable on the facts from Comeau’s Sea Foods. In Comeau’s Sea
Foods, the Supreme Court of Canada remarked, at para. 53, that “[t]he sole ground of negligence
alleged by the appellant was breach of the ‘defendant's statutory duty’”. The Court found that the
Minister had legitimately exercised his authority. As a result the Court found that there was no