OldBlackDog
Well-Known Member
Some thoughts and comments on Bill C -45
There has been much rhetoric from some of our politicians and bureaucrats about how the new fisheries act is intended to recognize and protect the Public Fishery, and by inference the Public Right To Fish.
They quote sections of the proposed Act which they say clearly shows their intentions to look after the public. It is interesting to note however, that not once have they mentioned Section 43, which is clearly intended to legalize the illegal actions they took previously in trying to privatize the fishery. If you don’t believe this, have a look at the current situation with regard to Halibut in B.C. where the previous government gave the commercial fishermen ownership of 88% of the resource and this policy is being continued by this current government.
Yes they will tell you that the commercial Halibut fishermen do not own the resource. But they do not answer when you ask, “if they don’t own the resource how is it that the government says that the recreational fishermen must purchase any additional Halibut from the commercial sector”? More importantly how can the commercial sector sell what the government claims it does not own? Is our government suborning fraud here?
Following are some comments and observations from the Sportfishing Defence Alliance regarding Section 43 of the proposed Act. Our legal advisors, with over 100 years of fisheries law experience tell us we are correct in our interpretation, Minister Hearn and his Parliamentary secretary say we and they are wrong. You read this and make up your own mind.
And, if the government is sincere in its’ claim it was prepared to change the Act if there were suggestions for change, then let them withdraw Section 43 and they will find much fuller support for the proposed Act and let us consult over the coming year on this Section and they can bring the changes in as amendments next year. Otherwise, the Bill has to be scrapped, for as the members have told us previously, if major changes are needed they must be made before second reading. They cannot be made during the committee process, even though the government spokesmen would have you believe differently.
Also the government spokesmen are making much of the Habitat sections of this Act. Well they are good. But they are nothing but words and do not reflect this governments’ commitment to habitat protection. If they really believed in protecting fish habitat, they would quit laying off habitat protection staff, and replace all those the Liberals laid off.
There are some good sections in this Act and some others that need changing but they do not lead to the loss of the public right that Section 43 does.
FISHERIES MANAGEMENT AGREEMENTS:
Section 43 – subsection (1) – This section gives a particularly high level of heartburn to our members in light of our historic experience with the DFO when that department was carrying out these type of agreements illegally. While the rationale given is very high sounding “to further, the conservation or protection of fish, the sustainable development of a fishery or the participation of Canadians in fisheries management”; it has been our experience, and that of many others in the various fisheries, that these agreements were simply utilized as ways of reducing the management requirements by the agency and loading more costs onto the backs of the fishermen, in essence a back door licence fee increase.
Subsection (f) – This section alone indicates clearly that the intention of this subsection is to do just what has been done previously, create a back door licence system, outside the control of the House of Commons as is required by Bill C 212. Subsection (h) amplifies even further the proposal to utilize this section to circumvent the proper process and Bill C 212.
Subsection (g) – Is nothing more than a blatant attempt to circumvent the rulings of the Federal Court of Appeal in R. v Larocque. This section makes it very clear that it is the intention of this government to continue the practice of utilizing the publicly owned resource as a source of funding to carry out the agencies mandated requirement to management and protect the fish resource and habitat. Subsections (i) and (j) clearly indicate that the intention of this section is to try to legalize the illegal management programmes that have been carried out, to our knowledge, in British Columbia.
Our members find this attempt to end run the ruling of the Federal Court of Appeal, which by their failure to appeal, the government indicated its acceptance of, most disturbing. We find it further justification of the concerns that many have that this changing of the Fisheries Act has less to do with any attempt to provide better protection to fish and fish habitat than it does with a panic effort to circumvent the Federal Court and continue the illegal practice of utilizing the publicly owned resource to finance the operation of the agency. It is also a direct attack on the Public Right to Fish. The clear intention of the government is to reduce the fish stocks available to the public and illegally utilize that publicly owned resource to finance programs. Activities that the government is not prepared to do itself but which it has a constitutional obligation to do.
Subsection (f) – This subsection is in direct conflict with Section 30 – subsection (1). It is a clear attempt to circumvent that section by providing for the “right of property” in the fishery by way of agreement even though it is not provided by the issuance of a licence. This section clearly provides for the “organization” to facilitate “quota” trades. No definition is given for what constitutes a “trade”, but given historic experience this is taken to mean, buy, sell or lease. Under Canadian law, to buy, sell, lease or trade, something you do not own is considered, at best, fraud. Yet here is government on the one hand stating that there is no right of property in the fish, as has the Federal Court of Appeal in Larocque, and yet on the other hand, in this subsection, stating that fish quotas may be traded!
We in the recreational sector have extensive experience in this area in that the Minister for the previous government decreed that if the recreational sector required any Halibut over 12% of the Canadian TAC, then the recreational sector had to buy, or lease that amount of Halibut from the commercial fishing sector. At the same time, the Minister and the staff from Fisheries and Oceans Canada repeatedly told us that the commercial halibut fishermen had no “right of property” in the fish, we were instructed to buy or lease from them!
We would also strongly object to licence administration being taken from under an independent third party, Fisheries and Oceans Canada, and given to what must obviously be a non-independent, biased third party.
Subsection – (g) – Another effort to back door the utilization of the resource owned by the public and not the government, to fund the management of the fishery by a third party. This is nothing but a blatant attempt to privatize the public fishery and circumvent the commitment not to do this that appears in Section 30 –(1). This is not acceptable to our members nor do we believe to the balance of the Canadian public once they learn of the real intention of this whole section.
Subsection – (h) – This subsection is in our view, ultra vires of the licensing section and is simply another attempt to circumvent Bill C 212 and the authority of the House of Commons.
Subsection – (i) – This subsection purports to allow the Minister and some unknown organization to establish a fee that members of a segment of the fishery must pay to such organization, in order to be allowed to participate in a fishery. Aside from this being another back door effort to impose additional licence fees on fishermen, we also have concerns over the fact that this subsection allows any Minister at his or her discretion to decide who would be the representatives for any group of fishermen or fishing sector and establish an agreement that would give them virtual total authourity over the fishery and fishermen. There are no checks or balances provided or called for that would ensure that the organization is truly representative, or providing any form or appeal or redress for individuals or groups of individuals who are at variance with the decisions of such organization or agreement.
We are aware of how badly this type of operation can be used. We have just recently been made aware of a situation in B.C. where 10% of an individuals quota was, illegally turned over to an organization chosen by DFO to co-manage the fishery, and that 10% was withheld by the organization until and unless the individual paid them what they requested. If the individual did not pay, then the organization would put the quota out to lease and confiscate the funds received. The fisherman, meanwhile had no recourse for if he or she took legal action, the organization would then use the fisherman’s own money to fund a legal defence.
We are also aware that under this new proposed structure, the circumstance of non-fishing licence and quota holders would continue to exist. This practice puts lie to the claim that a licence does no create any right in property. In one fishery that we are aware of, this has had a very negative impact on the income of the fishing crew, not the vessel owner or licence holder.
The system is so established that while the boat owner may lease quota at whatever fee he or she wishes, the cost of that lease comes out of the crews share and not the owners share. This activity makes a very strong argument for the implementation of a system that requires the holders of a licence or quota to fish that licence or quota except under very stringent conditions, “ e.g. not able to fish because of illness, or a widow or family estate, during the period when the estate is being probated”.
Subsection – (j) – Now we have the situation of the Minister transferring his power as a independent third party to determine how Canadians may exercise their right to participate in the public fishery, over to a very dependent third party. This activity is nothing more than another attempt to create a property in right of the fishing licence and again privatize the public fishery.
While we understand the need for the Minister and or the Government or Department to enter into agreements with individuals and or organizations for various purposes, we currently know of no restriction to such action presently. In fact we know for certain that on any given day the Government and or its Ministers enter into hundreds of agreements and or contracts. We therefore can find no real need or use for this whole section 43. It should be removed in totality as we can find no rational reason for its being, except those we have detailed in our comments on the various subsections of this section.
While we would acknowledge that there are real problems in the fishery today, we see this whole section and subsections as exacerbating these problems and not aiding in their solution.
There has been much rhetoric from some of our politicians and bureaucrats about how the new fisheries act is intended to recognize and protect the Public Fishery, and by inference the Public Right To Fish.
They quote sections of the proposed Act which they say clearly shows their intentions to look after the public. It is interesting to note however, that not once have they mentioned Section 43, which is clearly intended to legalize the illegal actions they took previously in trying to privatize the fishery. If you don’t believe this, have a look at the current situation with regard to Halibut in B.C. where the previous government gave the commercial fishermen ownership of 88% of the resource and this policy is being continued by this current government.
Yes they will tell you that the commercial Halibut fishermen do not own the resource. But they do not answer when you ask, “if they don’t own the resource how is it that the government says that the recreational fishermen must purchase any additional Halibut from the commercial sector”? More importantly how can the commercial sector sell what the government claims it does not own? Is our government suborning fraud here?
Following are some comments and observations from the Sportfishing Defence Alliance regarding Section 43 of the proposed Act. Our legal advisors, with over 100 years of fisheries law experience tell us we are correct in our interpretation, Minister Hearn and his Parliamentary secretary say we and they are wrong. You read this and make up your own mind.
And, if the government is sincere in its’ claim it was prepared to change the Act if there were suggestions for change, then let them withdraw Section 43 and they will find much fuller support for the proposed Act and let us consult over the coming year on this Section and they can bring the changes in as amendments next year. Otherwise, the Bill has to be scrapped, for as the members have told us previously, if major changes are needed they must be made before second reading. They cannot be made during the committee process, even though the government spokesmen would have you believe differently.
Also the government spokesmen are making much of the Habitat sections of this Act. Well they are good. But they are nothing but words and do not reflect this governments’ commitment to habitat protection. If they really believed in protecting fish habitat, they would quit laying off habitat protection staff, and replace all those the Liberals laid off.
There are some good sections in this Act and some others that need changing but they do not lead to the loss of the public right that Section 43 does.
FISHERIES MANAGEMENT AGREEMENTS:
Section 43 – subsection (1) – This section gives a particularly high level of heartburn to our members in light of our historic experience with the DFO when that department was carrying out these type of agreements illegally. While the rationale given is very high sounding “to further, the conservation or protection of fish, the sustainable development of a fishery or the participation of Canadians in fisheries management”; it has been our experience, and that of many others in the various fisheries, that these agreements were simply utilized as ways of reducing the management requirements by the agency and loading more costs onto the backs of the fishermen, in essence a back door licence fee increase.
Subsection (f) – This section alone indicates clearly that the intention of this subsection is to do just what has been done previously, create a back door licence system, outside the control of the House of Commons as is required by Bill C 212. Subsection (h) amplifies even further the proposal to utilize this section to circumvent the proper process and Bill C 212.
Subsection (g) – Is nothing more than a blatant attempt to circumvent the rulings of the Federal Court of Appeal in R. v Larocque. This section makes it very clear that it is the intention of this government to continue the practice of utilizing the publicly owned resource as a source of funding to carry out the agencies mandated requirement to management and protect the fish resource and habitat. Subsections (i) and (j) clearly indicate that the intention of this section is to try to legalize the illegal management programmes that have been carried out, to our knowledge, in British Columbia.
Our members find this attempt to end run the ruling of the Federal Court of Appeal, which by their failure to appeal, the government indicated its acceptance of, most disturbing. We find it further justification of the concerns that many have that this changing of the Fisheries Act has less to do with any attempt to provide better protection to fish and fish habitat than it does with a panic effort to circumvent the Federal Court and continue the illegal practice of utilizing the publicly owned resource to finance the operation of the agency. It is also a direct attack on the Public Right to Fish. The clear intention of the government is to reduce the fish stocks available to the public and illegally utilize that publicly owned resource to finance programs. Activities that the government is not prepared to do itself but which it has a constitutional obligation to do.
Subsection (f) – This subsection is in direct conflict with Section 30 – subsection (1). It is a clear attempt to circumvent that section by providing for the “right of property” in the fishery by way of agreement even though it is not provided by the issuance of a licence. This section clearly provides for the “organization” to facilitate “quota” trades. No definition is given for what constitutes a “trade”, but given historic experience this is taken to mean, buy, sell or lease. Under Canadian law, to buy, sell, lease or trade, something you do not own is considered, at best, fraud. Yet here is government on the one hand stating that there is no right of property in the fish, as has the Federal Court of Appeal in Larocque, and yet on the other hand, in this subsection, stating that fish quotas may be traded!
We in the recreational sector have extensive experience in this area in that the Minister for the previous government decreed that if the recreational sector required any Halibut over 12% of the Canadian TAC, then the recreational sector had to buy, or lease that amount of Halibut from the commercial fishing sector. At the same time, the Minister and the staff from Fisheries and Oceans Canada repeatedly told us that the commercial halibut fishermen had no “right of property” in the fish, we were instructed to buy or lease from them!
We would also strongly object to licence administration being taken from under an independent third party, Fisheries and Oceans Canada, and given to what must obviously be a non-independent, biased third party.
Subsection – (g) – Another effort to back door the utilization of the resource owned by the public and not the government, to fund the management of the fishery by a third party. This is nothing but a blatant attempt to privatize the public fishery and circumvent the commitment not to do this that appears in Section 30 –(1). This is not acceptable to our members nor do we believe to the balance of the Canadian public once they learn of the real intention of this whole section.
Subsection – (h) – This subsection is in our view, ultra vires of the licensing section and is simply another attempt to circumvent Bill C 212 and the authority of the House of Commons.
Subsection – (i) – This subsection purports to allow the Minister and some unknown organization to establish a fee that members of a segment of the fishery must pay to such organization, in order to be allowed to participate in a fishery. Aside from this being another back door effort to impose additional licence fees on fishermen, we also have concerns over the fact that this subsection allows any Minister at his or her discretion to decide who would be the representatives for any group of fishermen or fishing sector and establish an agreement that would give them virtual total authourity over the fishery and fishermen. There are no checks or balances provided or called for that would ensure that the organization is truly representative, or providing any form or appeal or redress for individuals or groups of individuals who are at variance with the decisions of such organization or agreement.
We are aware of how badly this type of operation can be used. We have just recently been made aware of a situation in B.C. where 10% of an individuals quota was, illegally turned over to an organization chosen by DFO to co-manage the fishery, and that 10% was withheld by the organization until and unless the individual paid them what they requested. If the individual did not pay, then the organization would put the quota out to lease and confiscate the funds received. The fisherman, meanwhile had no recourse for if he or she took legal action, the organization would then use the fisherman’s own money to fund a legal defence.
We are also aware that under this new proposed structure, the circumstance of non-fishing licence and quota holders would continue to exist. This practice puts lie to the claim that a licence does no create any right in property. In one fishery that we are aware of, this has had a very negative impact on the income of the fishing crew, not the vessel owner or licence holder.
The system is so established that while the boat owner may lease quota at whatever fee he or she wishes, the cost of that lease comes out of the crews share and not the owners share. This activity makes a very strong argument for the implementation of a system that requires the holders of a licence or quota to fish that licence or quota except under very stringent conditions, “ e.g. not able to fish because of illness, or a widow or family estate, during the period when the estate is being probated”.
Subsection – (j) – Now we have the situation of the Minister transferring his power as a independent third party to determine how Canadians may exercise their right to participate in the public fishery, over to a very dependent third party. This activity is nothing more than another attempt to create a property in right of the fishing licence and again privatize the public fishery.
While we understand the need for the Minister and or the Government or Department to enter into agreements with individuals and or organizations for various purposes, we currently know of no restriction to such action presently. In fact we know for certain that on any given day the Government and or its Ministers enter into hundreds of agreements and or contracts. We therefore can find no real need or use for this whole section 43. It should be removed in totality as we can find no rational reason for its being, except those we have detailed in our comments on the various subsections of this section.
While we would acknowledge that there are real problems in the fishery today, we see this whole section and subsections as exacerbating these problems and not aiding in their solution.
