HALIFAX: A lawyer representing a group of aging fishermen said a judicial review provides hope.
In a Dec. 22 ruling, Federal Court Justice Elizabeth Heneghan found the Department of Fisheries and Oceans (DFO) provided little evidence to support its refusal of Class B lobster fisherman Donald Publicover’s request to sell his licence, which he estimates is worth between $200,000 and $300,000.
“You now have an independent judge of the federal court saying that the position that’s been maintained by DFO over the last 50 years, today is no longer reasonable,” Cox & Palmer lawyer Michel Samson told The Reporter. “And that DFO has to look at this policy, and has to look at the situation of these fishermen to determine whether the element of the 1976 policy that says that those licences cannot be sold or transferred, whether that’s still justified in 2022.”
Samson said Publicover was seeking an exemption so he could pay for renovations to his home and leave money for the ongoing care of his adult children, who both suffer from severe and chronic disabilities. He is one of approximately 80 Category B lobster licence fishermen across Nova Scotia, New Brunswick and PEI who are challenging the federal government to review its 50-year-old “moonlighter policy” that prevents them from selling or transferring their licences and retiring, according to a press release issued by the group on Jan. 7.
In 1976, the press release noted that the DFO created the “moonlighter policy” to remove people from the fishery as a conservation method.
Richard Norman, also of the law firm Cox & Palmer, said former fisheries minister Bernadette Jordan cited DFO conservation policy in her decision to deny Publicover’s request for an exemption back in 2020.
“DFO claimed that the retirement of these Class B licences was part of their conservation plan, but never explained how it fits in to the conservation plan,” Samson noted. “The judge said simply relying upon the policy of 1976 without providing any justification today, is unreasonable.”
The policy affected fishers who held other jobs or professions, the press release said, explaining that DFO deemed fishing was not their primary source of income. The release went on to note that these fishers feel the rule is arbitrary, and assert they are dependent on the fishery.
Because the licences can’t be sold or handed down, and expire when the fishermen die, the press release said it has forced many of these men to fish well into their 80s to support their families.
Richard Power of Pirate Harbour started fishing at the age of 12 with his father, and has held a Class B licence since 1977.
“Everybody in Mulgrave used to buy a Class A licence for a quarter, and there was no limit on the traps. But I kept fishing with my father, until he passed away,” he noted. “Most of the guys who bought their licence for a quarter, the government said they’d buy them back for $2,000 and they jumped on that because there weren’t many lobsters at that time. I think we were getting 25 cents a pound when I started. They all mostly sold theirs, but I kept mine.”
In the late 1970s, Power started work with Britten Industrial Marine in Port Hawkesbury, and stayed there for 16 years.
“(DFO) said, ‘you either fish or work,’” he recounted. “Well I said, ‘I can’t fish, I can’t support my family’ on the money I made off fishing at that time. So they cut me back to a (Class) B.”
Power said there are only three other Class B fishermen in the region, all of whom are at an advanced age, and the 81-year-old said he would like to have the options of giving the licence to his family or selling it.
“Some of our clients, similar Class A, they want to pass it down to a family member who’s been helping them fish it, others are happy just to sell just to whoever,” stated Samson.
The group noted that Class B licence holders have a capacity of 75 traps per licence, roughly one-third the capacity of Category A licences.
“The lobster industry is doing really well; catches are at an all-time high, prices are at an all-time high, and if we look at all the licences and the associated traps that are in both the Maritime and Gulf Regions, Class B licence holders have one per cent of those traps,” Samson stated.
As a result of last month’s court decision, Samson said there are a few possible scenarios.
“One of the options is that DFO can just write us another letter and give more reasons as to why they’re denying Mr. Publicover’s request for an exemption to the policy. Number two, they can appeal the decision, which they’ve done,” he said. “Or they can sit down and negotiate with us, a resolution to this matter.”
If DFO decides to go with an appeal, Samson said that sends a terrible message.
“DFO should know that’s how much of a delay this could cause, and the fact is, that because of the age of our clients, any such delay as that sends a clear message that DFO is waiting for our clients to die,” he stated. “Last year, we lost seven in one year. Most of our clients have health issues.”
To seek a resolution to this “institutional issue,” Samson said he will write new fisheries minister Joyce Murray requesting a meeting.
“We have a new minister and hopefully she is willing to look at the situation and just understand that this policy is 50 years old, it can’t be justified,” he added.