Element of a New Fisheries Act - Discussion Document

LICENCING

BACKGROUND

DFO's licensing system has generally adapted well to the needs of the fishery and evolution from open-entry fisheries to limited entry and quota fisheries. But the licensing provisions of the current Act are outdated.

The previous Fisheries Act does not make any reference to licensing policy, the primary tool to provide directions and guidelines for the exercise of the discretionary power to issue fishing licences. The previous Fisheries Act did not distinguish between the role of the Minister (deciding access and setting licensing policies) and the routine business of licence administration. Issuance of long-term licences (beyond nine years) required the approval of the Governor in Council.

The Standing Joint Committee for the Scrutiny of Regulations (SJC) had questioned DFO's authority for certain activities including the ability to lay charges for failing to comply with the licence condition provisions and certain licensing practices in the Aboriginal fishery.

LICENCE PROVISION CONSOLIDATION

The licensing system will operate much as before. However, DFO has consolidated licensing powers.

PERSONS AUTHORIZED TO FISH UNDER A LICENCE

Provisions respecting persons authorized to fish under the authority of a licence have been added in order to cover two situations:

1. When a licence is issued to an organization for all members of the organization to fish under the same licence;
2. When an individual licence holder must make use of vessel crews, including the master of a vessel, to exercise the privilege of fishing.

LICENSING RESPONSIBILITIES

DFO has replaced the Minister's power to issue fishing licences and leases "in his absolute discretion" by a new regime. The Minister continues to decide on access to the coastal fishery but at the level of policy set out in regulation.

The Minister no longer issues fishing licences. Provisions in the new Act authorizes the Minister to designate individuals or classes of individuals to issue licences for fishing or for other activities involving fish or marine plants as required for the purposes of the Act. Decisions by licensing staff have to comply with the Minister's licensing policies and are reviewable in some instances by a tribunal (an administrative sanctioning model described later in this document).

Most recreational fishing licences for freshwater fisheries are issued by provinces, under their own statutes. These arrangements will not change under the new legislation.

MINISTERIAL POLICIES FOR ISSUING LICENCES

A new Act includes a provision stating that the Minister may establish policies in regulation for the issuance of licences, including eligibility criteria.

Examples of licensing policies are:

• Owner-operator and Fleet Separation policies in Atlantic commercial fisheries;
• Policies for the issuance of communal licences to Aboriginal organizations in coastal fisheries; and
• Area licensing policy in the Pacific commercial salmon fishery.

By separating the policy-making function from the licence issuance function, the Act confers a higher-level political role for the Minister while directly assigning the licensing function to officials operating within the parameters set by the Minister and regulations (in the case of licence conditions that can be attached to a licence).

That the Minister must publish the policies in the form of regulations will ensure transparency and accountability.

To ensure that the Minister will be able to respond to sudden changes in fisheries management, there is an ability to make interim measures to adjust these policies to respond to the needs of stakeholders as well as the conservation and protection of the resource.

LICENCE DURATION

Currently under subsection 7(2) of FA, licences may be issued for periods beyond nine years only with the approval of the Governor in Council. Repealing this provision allows the department to issue licences for any duration.

LICENCE TYPES AND CONDITIONS

The new Act includes a provision stating that a licensing officer may attach conditions to the licences he/she issues. The conditions have to be those of the classes or categories established by the regulations.

The most familiar categories of licence conditions are: the species that may be fished, the fishing zone, the fishing period, the amount that may be fished ("quota"), the gear that may be used, and the reports that must be submitted.

In situations where a licence is issued to an organization (including First Nations or aboriginal organization), the licensing provisions would provide authority to attach conditions respecting designations to those licences in order to establish who may lawfully fish under this type of licence.

Licensing provisions in a new act enumerate limited circumstances where the licence conditions may be modified. Once a licence has been issued, the conditions attached may only be modified:

• if the licence holder requests it;
• on the initiative of the licensing officer if it is required for the conservation and protection of fish or fish habitat; or
• on the initiative of the Minister if it is required for the proper management and control of a fishery.

This first limitation on amending conditions already appears in the Fishery (General) Regulations. In the interest of fairness to the licence holder, it circumscribes the power of officials, yet ensures that licences can be amended when protection of the resource requires it.

A new Act provides that a licence holder and anyone acting under the authority of a licence (which would include crew members, designated individuals who are fishing under the authority of a licence) must comply with the conditions of a licence.

This change clarifies the requirement and responds directly to an issue identified by the SJC in the context of its review of subsection 36(2) of the Ontario Fishery Regulations, 1989.

LOSS AND WITHHOLDING A LICENCE

A new Act makes it clear that a licence reflects a privilege to fish which does not convey any property rights to the licence holder or anyone else. Furthermore, it confirms that a licence is the property of the Crown and is not transferable, as was already stated in the Fishery (General) Regulations. However, the Minister's licensing policies as set out in regulation would continue to authorize the reissuance of licences, i.e., the retirement of an existing licence and the issuance of a comparable licence to another fisher identified by the original licence-holder in accordance with licensing policies such as Fleet Separation.

The licensing provision lists situations where a licensing officer may refuse to issue a licence.

The new Act contains a provision to also allow the licensing officer to refuse to issue a licence where he/she is provided with evidence that the licence holder has not paid the amounts of money that must be paid under a fisheries management agreement. This addresses the "free rider" problem in the coastal commercial fisheries, in cases where a minority of fishers might elect to distance themselves from decisions made by their representative organizations. Furthermore, the licensing officer can refuse to issue a licence to someone who has failed to meet the administrative requirements of the previous year's licence, e.g., the submission of information on a previous year's landings of fish.

APPEALS TO TRIBUNAL FOR REFUSAL TO ISSUE LICENCE

To strengthen the new administrative regime, appeals of licensing decisions are dealt with by an arms length body that does not report to the Minister, rather than the Minister hearing these appeals himself. The arms length body is required to observe the licensing policies set out in regulations with respect to the issuance of licences. As at present, those licensing policies include criteria for making exceptions in certain circumstances - generally considerations of undue hardship.

AQUACULTURE LEASES

A new aquaculture lease provision replaces: sections 57 and 58 of the Fisheries Act, which dealt with the issuance of leases for oyster cultivation; and the authority in section 7 of the Act for the issuance of leases "for fisheries and fishing".

The new Act includes a single, consolidated provision confirming the authority of the Minister to issue leases for aquaculture purposes. In practice, the issuance of leases is largely confined to PEI waters, since PEI alone has an arrangement (1928) with the federal government that specifies that the federal Minister will issue such leases. Elsewhere, agreements have been concluded under which the province issues leases.