GUYSBOROUGH – Last December this paper reported that the Federal Court of Canada ruled a judicial review of the decision prohibiting the sale of a Class B lobster licence by the Department of Fisheries and Oceans (DFO) – in a court case initiated by Nova Scotia lobster fisherman Donald Publicover in 2020 – would be allowed.
Class B licences were introduced in 1976. They have a capacity of 75 traps per licence, roughly one-third the capacity of Category A licences, and cannot be transferred, leaving them to expire upon death of the licence holder. The policy was adopted by DFO as a conservation measure.
DFO decided against filing an appeal of the federal court decision last February. Michel Samson, a member of the law firm representing Publicover, Cox & Palmer, told The Journal on Nov. 4, “Whenever someone doesn’t appeal a decision that goes against them you can kind of interpret that they are obviously not opposed to what the court had to say…We were optimistic, needless to say.”
In February, Samson expected the door was now open for DFO and Class B fishermen to negotiate an agreement before more licences were lost.
Shortly after DFO failed to file an appeal, the law firm received an invitation to meet with the minister for DFO Joyce Murray, which they viewed as a positive development.
At the May 2 meeting, Samson said he introduced his team and Donald Publicover, all of whom had been provided on a list of meeting attendees given to DFO prior to the meeting.
The result of that meeting and the minister’s announcement of the decision in July not to undertake a judicial review of Publicover’s case was the impetus for a press conference by Samson on Nov. 2 to bring the issue to the public.
During that press conference, Samson said Murray was unwilling to hear Publicover’s story, reportedly telling him, “‘Please, don’t speak. I’d like you to be quiet’.”
In the days following the press conference, DFO has disputed this representation of the interaction in various media reports. The Journal has asked DFO for a transcript of the meeting but had received no response by press time.
In discussion with The Journal on Nov. 4, Samson said, “My comment at the press conference was that she basically told him to be quiet and that she didn’t want to hear his story…and they tried to argue that there’s ongoing litigation. Well, there wasn’t. Mr. Publicover’s Federal Court of Canada judicial review had been decided in December and it had been ruled that the minister’s reasoning had been unreasonable and had been sent back to her department for reconsideration.”
Samson went on to say that at the May 2 meeting, they were told the discussion should be limited to Class B licences, in general, not individual stories. Yet Mike Kaiser, the son of a Class B licence holder whom Samson also brought to the meeting, was permitted to talk about the impact the Class B licence restriction had on his family.
The July decision by Murray not to proceed with a judicial review cited the same reasoning as was deemed unreasonable by the Dec. 2021 federal court decision, Samson told The Journal: conservation of lobster stock, which is deemed high, and sustains a healthy industry of which Class B licence holders fish less than one per cent of all pots.
Given the holding pattern DFO has adopted concerning the case of Class B lobster licences, Cox & Palmer has filed for a new judicial review of Murray’s July 5 decision.
Samson told The Journal, “What we are asking for in judicial review, we’re saying, number one, the minister doesn’t seem to get it here, so federal court, we’d like you to order DFO to allow the sale of this licence [Publicover’s]. Number two, the other option is to find this new decision unreasonable and order for them to reconsider it again.”
Samson is concerned about the time required to run through this process yet again. Since the action started two years ago, eight of the original 80 Class B fishermen the firm represents have passed away, and their licences are gone with them.
Samson said of the continued struggle, “[I’m] disappointment that the government maintains that a policy from 1976 should not be reviewed and should not be changed, it’s completely unreasonable. Any government policy should be open for review on a regular basis to see if it is still applicable, whether the mandate of the policy has been achieved, whether the policy is still required. And the message I gave to DFO during our press conferences was, ‘Mission accomplished. You now have a stable, healthy commercial lobster fishery that no longer requires you to retire licences for the ongoing, long-term health of that industry.’”
Richard Power of Mulgrave has been fishing since he was 12. At 82, he continues to fish his Class B licence in Lobster Fishing Area 29 with helpers drawn from his immediate family.
Power told The Journal on Nov. 7 that, when the Class B licences came into effect, he believed he would be able to revert to a Class A licence, if he no longer fell under the Class B classification which applied to fishers who made less than less than 75 per cent of their income from fishing. But that was not the case.
“I might sell it [licence] if I find out some good news,” said Power, adding, “Even if we pass it to someone else, it’s not hurting the fishery. I think we should win our case.”
Once again, it’s up to the court to decide if a 50-year-old government policy stands the test of time. But time is in short supply for ageing Class B licence holders.
