OTTAWA: Fisheries and Oceans Canada (DFO) confirmed it will not appeal the federal court’s decision about Class B licences.
In a Dec. 22 ruling, Federal Court Justice Elizabeth Heneghan found 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.
Cox & Palmer lawyer Michel Samson told The Reporter that 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 Class B lobster licence fishermen 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.
A press release from lawyers representing the fishermen noted that in 1976, DFO created the “moonlighter policy” to remove people from the fishery as a conservation method. Class B fishing licences have a capacity of 75 traps per licence, roughly one-third the capacity of Class A licences, they noted.
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.
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.
While DFO did not comment on the policy, they are stressing the need for Minister Joyce Murray to revisit Donald Publicover’s request, as ordered by the court, Lauren Sankey, with DFO Media Relations told The Reporter via email on Feb. 10.
“Historically, (Class) B licences allowed for modest levels of harvesting by harvesters who didn’t depend on the lobster fishery for their income. These licences are not eligible for re-issuance,” she wrote. “This approach both enables access to the fishery to those with historic ties and contributes to DFO’s conservation, social, cultural and economic objectives including the long-term sustainability of the lobster populations and fishery.”
Norman took the federal government to court after the former fisheries minister turned down Publicover’s request for an exemption in 2020.
According to a press release issued last week by lawyers representing Class B lobster licence fishermen across Nova Scotia, New Brunswick and PEI, DFO cited conservation policy as the main rationale for denying the request, but in the Dec. 22 ruling, Heneghan found the department provided little evidence to support that rationale.
Heneghan said the minister’s decision was “unreasonable” as it did not meet the standard of being “transparent, intelligible and justified.” The ruling meant Publicover’s request went back to the federal government.
Given the age of these fishermen, the lawyers maintain that time is not on their side, noting that in the last year alone, seven Category B licence holders passed away.
By avoiding a lengthy appeal process, Samson said the door is now open for DFO and Category B fishermen to come together and work toward a solution before more licences are lost forever.
“We’re pleased that they chose not to appeal. Considering how long an appeal would’ve taken, we know that we would’ve lost more clients and more Class B licence holders for an appeal period which could’ve taken up to two years, if not longer,” he stated. “We’re certainly hopeful now that the minister is going to, not only look at Mr. Publicover’s personal situation, but look at the plight of the remaining Class B licence holders and make the policy change across the board, rather than having to deal with these licences one at a time.”
Samson said he looks forward to meeting with the minister to find a fair resolution. The fact DFO decided not to appeal and that “every excuse they’ve ever used in the past” was rejected by the federal court, should lead to a policy change.
“We did submit our request for a meeting, and we did receive confirmation that they’ve received our request for a meeting, but there’s been no follow up since then,” he noted. “We certainly hopeful that the minister will meet with us, and get a better appreciation of the situation these Class B licence holders find themselves in.”
If DFO decides to deal only with Publicover’s case, and not the others, Samson added they will continue fighting.
“That just means that we will have to continue our efforts and continue writing letters to the minister, and appealing decisions to the federal court as necessary,” he added. “The message to DFO is we either resolve this or we continue to fight because we’re not giving up and our clients are not giving up.”