The Federal Court of Canada has dismissed an application for a judicial review by Labrador fisher Kirby Elson, who was seeking to challenge the federal fisheries minister’s authority to strip him of a snow crab licence after he refused to exit a controlling agreement that’s contrary to the PIIFCAF (Preserving the Independence of the Inshore Fleet in Canada’s Atlantic Fisheries) policy.
“The PIIFCAF Policy revolves around licence eligibility. It clearly advises fish harvesters that the use of controlling agreements is contrary to existing DFO licencing policy and the steps the minister intends to take to address this. That is, that fish harvesters must demonstrate they aren’t parties to controlling agreements in order to be eligible to be categorized as Independent Core so as to renew their licences,” stated Justice Cecily Strickland in the May 5 decision.
“In this matter, it is abundantly clear from the record before me that the objective of the PIIFCAF Policy was to address the deliberate circumvention, by way of the proliferation of trust agreements (controlling agreements), of the Owner-Operator and Fleet Separation Policies. This was achieved by the implementation of the Independent Core eligibility requirements.”
The decision was welcome news for Graeme Gawn, president of local 9 of the Maritime Fishermen’s Union (MFU).
“The (PIIFCAF) policy was found by the court to be enforceable, that the minster has the right to make and enforce the policy,” Gawn says. “We expect enforcement to step up now that the case has been decided. We also fully expect the case to be appealed and the appeal to be denied.”
Gawn says more than 700 fishers that were in controlling agreements prior to 2014 drafted new agreements that were PIIFCAF compliant by the deadline that year.
“It was just a matter of making a new agreement,” Gawn says. “Almost everybody with a million-dollar rig has a bill to pay. There’s nothing wrong with having a bill and paying it back, whether it’s with the loan board, a bank or a lobster buyer. It doesn’t make any difference. The most important thing is once its paid you own it.”
In an interview earlier this year, Morley Knight, who is now the deputy minister for fisheries policy at DFO, said the department has conducted a lot of reviews and audits since 2015. At the time, there were five cases under review and two licences had been cancelled.
“It’s a complicated process,” he says. “We want to make sure its done right and in compliance,” noting the “consequences are grave.”
A full transcript of Justice Strickland’s decision can be found online at: http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/230764/index.do?r=AAAAAQALS2lyYnkgRWxzb24B#top