Element of a New Fisheries Act - Discussion Document

FISHERIES MANAGEMENT AGREEMENTS

BACKGROUND

In the past, Integrated Fisheries Management Plans and Joint Project Agreements as well as agreements respecting Aboriginal harvesting have been implemented in some fisheries with a high degree of success. However, there has never been a statutory framework in the Act that articulates what such arrangements may cover.

The Pearse-McRae report, the First Nations Panel report, and the Atlantic Fisheries Policy Review recommended an increased role for resource users and their organizations in the management of the fisheries.

CHANGES

The new Act provides authority to the Minister to enter into legally binding arrangements with different entities to further the conservation and protection of fish, the sustainable development of a fishery or the participation of Canadians in fisheries management. These agreements would be entered into with an organization that is representative of a class of persons or licence holders. Such arrangements are sometimes loosely called "co-management" agreements but, unlike previous bills, there is no plan to limit the Minister's accountability for fisheries management nor to, as was conjectured by some, "privatize" fisheries management.

While most fisheries management agreements would be with Aboriginal organizations or commercial fleets, agreements could also be signed with recreational fishing organizations.

The fisheries currently managed by inland provinces under existing delegation arrangements would not be the subject of fisheries management agreements.

Fisheries management agreements would not delegate management authority to external groups, nor would they privatize fisheries management. The Minister and DFO would remain fully accountable for fisheries management, including science decisions, enforcement and making fishing rules. However, there would be greater opportunities for collaboration between DFO and responsible groups in the fishery.

With legally binding fisheries management agreements, DFO and fisheries organizations share in the responsibility and accountability for the programs, processes and decisions covered by the agreements. The agreement could deal with such subject matters as the process for establishing fishing plans, the scope and funding of scientific surveys and responsibilities for routine licence administration, including the processing of quota "transfers" (subject to the Minister's licensing policies). Access policies and allocation decisions remain the exclusive responsibility of the Minister and would not be addressed in fisheries management agreements.

The new Act clearly sets out what could be included in a fisheries management agreement. The agreement would set out, among other things, the persons to whom the agreement applies; the respective roles, responsibilities and duties of the parties to the agreement; the conservation, protection and management rules for the fishery in question; and any arrangements for licence administration including quota trades and transfers.

Agreements could also cover funding arrangements, including:

• the assignment of a quantity of fish to the organization to defray the cost of their role in the management of the fishery;
• amounts that the persons to whom the agreement applies are required to pay to the organization; and
• any matter concerning the conservation and protection of fish or the sustainable development or management of a fishery.

The fisheries management agreement would assist the organization to deal with the difficulties related to obtaining the financial support from the fishers who receive the benefits of the agreement.

The provisions of fisheries management agreements could vary depending on the willingness and capacity of each organization to take on a greater role in the day-to-day management of those fisheries.

It would be clear that fisheries management agreements, for the purposes of administrative sanctions (an administrative sanctioning model is described later in this document), may set out guidelines that the tribunal must consider in sanctioning a licence holder to whom the agreement applies and who is found to be liable for a major violation. The fleets which enter into fisheries management agreements would thus have a greater role in determining the sanctions to be applied to their members, once the tribunal has made a finding on the facts of the case.

Where there is a provision in the agreement relating to sanctions and a licence holder has, for example, fished in excess of the quota set out in the licence, the tribunal would be guided by the applicable sanctioning formula set out in the agreement; for example, a 3-for-1 reduction of quota for the next fishing season.

Any conservation, protection or management rules established for the fishery covered by the agreement would be automatic conditions of the licences issued to individuals to whom the agreement applies. While the Minister would still be required to approve every agreement, the fleet or other organization would be assured that the rules they helped develop would be applied and enforced by DFO.

PUBLICATION OF FISHERIES MANAGEMENT AGREEMENTS

It is required that the Minister publish every fisheries management agreement he/she enters into in the manner he/she considers appropriate. The publication of such agreements would ensure that they can be reviewed by other fleets and Canadians in general.

The new Act provides that no one can be found liable for a contravention of the conservation, protection or management rules set out in a fisheries management agreement unless, at the date of the contravention, the agreement had been published.

Regulations set out the process for ratification of agreements by the fishers who will be subject to it. In a commercial fishery, this ratification process would be open to all fishers, not just the members of the association. This provision would be a further protection for fishers, in fisheries where a representative organization has signed agreements with the Minister.

There is a statutory authority to publish the names and addresses of the licence holders and the persons to whom the fisheries management agreement applies.

FISHERIES MANAGEMENT AGREEMENTS PREVAIL OVER CERTAIN REGULATORY PROVISIONS

The new Act provides that in the event of an inconsistency between the rules established in a fisheries management agreement and the provisions of a regulation, including fee provisions, the fisheries management agreement would prevail, to the extent of the inconsistency.

MINISTER'S POWERS NOT LIMITED

It is clear that a fisheries management agreement does not limit the Minister's powers to take any measure that he/she considers necessary for the conservation or protection of fish, including the power to make a fisheries management order. This provision allows the Minister to take effective action in those instances when immediate, non-negotiable actions were required to protect fish stocks that might be threatened or subject to sudden changes in condition.