For those interested in both government legislation and civil
liberties as they effect recreational angling - the following review
might prove of interest.
Michael N. Robinson
Fisheries Institute of Nova Scotia
A Critical Review of Pending Legislation
PROPOSED NEW FISHERIES ACT
BILL C-62
Its impact on recreational angling in Canada, most particularly on
the sportfishing industry in the Maritime Provinces.
Proposed Action Endorsed By:
Canadian Association of Smallmouth Anglers
Nova Scotia Salmon Association
Nova Scotia Wildlife Federation
Fisheries Institute of Nova Scotia
Trout Unlimited - Nova Scotia
PROPOSED NEW FISHERIES ACT
This review is based on the proposed new Fisheries Act, more commonly
known as Bill C-62. There has been no indication that there are many
changes contemplated to the proposed Act compared to the last version
that died on the Order Paper. Sections 17 - 22 are unconscionable. If
these sections are not removed prior to its re-introduction in the
House, we will have only ourselves to blame when the rights we have
taken for granted for nearly 800 years, disappear forever.
THE FISHERY BELONGS TO THE PUBLIC
The Great Charter of English liberty, more commonly known as the Magna
Carta, was decreed by King John, at Runnymede on June 15th, 1215,
A.D. One of the more "minor" sections (47) read as follows:
All forests constituted as such in our time shall straightway be
annulled; and the same shall be done for river banks made into
places of defense by us in our time.
This section prevented the monarch from establishing new exclusive
fisheries in tidal waters, and through refinement and practice evolved
into what is known in English Law as the "public right to fish".
This is a very important concept. It defined, over 700 years ago, that
the fish and the fishery are not owned by the Crown, they are owned by
the public. Based on the principles of the Magna Carta, the public
right to fish became the law of nine of our provinces. Quebec's legal
code differs from the rest of Canada, but, through pre-confederation
legislation, residents of this province also retained the same public
right.
Over time, the public right of fishery was extended, through fisheries
policy and practice, to non-tidal waters in Canada as long as they
were navigable.
As recently as 1996, the Supreme Court noted, in part
It has been unquestioned law since Magna Carta no new exclusive
fishery could be created by Royal grant in tidal waters, and that
no public right of fishing in such waters, then existing, can be
taken away without competent legislation.
Since the fish and fishery are a public right, it cannot be made an
exclusive right without Parliamentary approval. Without this
authority, the Minister cannot provide an exclusive right to any group
- either in the commercial fishery or the recreational fishery.
The proposed legislation (principally sections 17 thru 22) - seeks to
override this right - and reserve it for the Minister to dispose of,
to any group, at any time, at the Minister's sole discretion.
The most unwholesome aspect of the proposed legislation, is that it is
not subject to general law - once the Minister signs a Fisheries
Management Agreement with any group, for any reason whatsoever, it
supersedes the law.
It would appear that the sole gain for the Minister, with the
enactment of sections 17 - 22, is the power to override existing
fisheries legislation, and to legitimize potential illegalities of
current DFO policies and practice - leaving no effective means of
appeal.
A REVIEW OF SECTIONS 17 - 22
There are those that see this as applicable only to the commercial
fishery - and given Fisheries & Oceans lack of substantive interest or
commitment to the recreational sector, this is understandable - but,
the proposed Act does not clearly differentiate between the two
sectors, commercial or recreational. This lack of differentiation
clearly means that sections 17 - 22 apply equally to both sectors. It
is these sections that are in direct contravention with all policies
and statements made by previous Ministers and Commissioners of
Fisheries since Confederation.
Section 17. (1) Her Majesty in right of Canada, represented by the
Minister, may enter into a fisheries management agreement with any
organization that, in the opinion of the Minister, is representative of a
class of persons or holders.
This section, defined as "Powers of the Minister" gives the Minister
absolute power to decide which group or organization shall have sole
access to the fishery. This is an implicit attack on the public right
of fishery.
Section 18. (1) Before a fisheries management agreement
is entered into, notice of it shall be given to the holders or persons
likely to be subject to it.
This would indicate that notice has to be given to the group or organization
so favoured by the Minister's largesse - it does not mean that there is any
consultation process - it does not mean that those who have been excluded
have to be notified in any way prior to the Minister entering into a Management
Agreement.
Section 19. (1) The Minister shall publish a fisheries management
agreement in the manner the Minister sees fit.
This does not mean that the Minister has to publish the details of the
agreement at all - only if, and how, the Minister deems it advisable.
Section 20 (1) If there is an inconsistency between a term of a
fisheries management agreement and a provision of the regulations, the
fisheries management agreement prevails to the extent of the
inconsistency.
This section allows the Minister to supercede the law.
An agreement, once signed by the Minister is not subject to the
general law as are all agreements under the existing Act. It also
would seem to indicate that a new management agreement would have the
power to override all existing agreements - whether signed with the
commercial sector or even a management agreement negotiated with a
provincial government.
Section 21 (1) Where the Minister considers that a fisheries
management order is required for the conservation of a resource, the
power of the Minister to make the fisheries management order is not
limited or in any way affected by a fisheries management agreement.
The existing Act already allows the Minister to override any agreement
if a conservation need arises. Since the Minister has specifically
retained this power in all agreements he has signed to date this
amendment would not be necessary.
Section 22 (1) Fisheries management orders and fisheries management
agreements are exempt from the application of sections 3, 5 and 11 of
the Statutory Instruments Act.
This elimination allows the Minister to operate secretly - behind closed doors -
without public consultation - to create new private fisheries, as he
wishes, t the expense of the public fishery. Under the existing Act,
new regulations are carefully vetted by the Privy Council Office to
ensure that they are consistent with other regulations, statutes and
common law. These proposed regulations are then published
in the Canada Gazette for public comment. Any comments
that are received are then considered before they receive
Cabinet approval and the Governor General's signature.
Exemption from these sections of the Statutory Instruments Act could
mean that a user group first becomes aware that a management agreement
affecting their normal area of interest, only when they attempt to
fish and are told by the new management agreement licensees that the
rules have changed.
Of particular interest of a section to be eliminated is section 3. (2) - as follows:
3. (2) Upon receipt by the Clerk of the Privy Council of copies of a
proposed regulation pursuant to subsection
(1), the Clerk of the privy Council, in consultation with the Deputy
Minister of Justice, shall examine the proposed regulation to ensure
that
(a) it is authorized by the statute pursuant to which it is to be
made;
(b) it does not constitute an unusual or unexpected use of the
authority pursuant to which it is to be made;
(c) it does not
trespass unduly on existing rights and freedoms and is not, in any
case, inconsistent with the purposes and provisions of the Canadian
Bill of Rights; and
(d) the form and draftsmanship of the proposed
regulations are in accordance with established standards.
These are safeguards that should not be lightly cast aside. But, in
fact, under the new Act there are no safeguards, since the Minister
can overturn even the published regulations at his sole discretion.
This exemption also has a profound effect on enforcement efforts. How
can the Enforcement Officer monitor a fishery, if the governing laws
are only to be found in innumerable unpublished Fisheries Agreements,
which override the general regulations, and which are not even
enforceable unless the Enforcement Officer can prove that actual
notice has been given to the licensees.
There can be no effective enforcement unless there is a single set of
laws that are subject to equal application.
WHY DO WE NEED A NEW FISHERIES ACT?
There are many areas that need revising and up-dating - and this
includes aspects affecting the Aboriginal, Commercial and Recreational
sectors. The need is a point with which we can all agree. Do we need
the proposed Act, as it is written? Absolutely not.
This is the third time that this infamous piece of legislation has
been placed before Parliament - twice it died, either with a lack of
concurrence, or through its death on the Order paper - we now face
attempt number three. Various Ministers, over the years, has tried to
justify the need for a new Act - particularly sections 17 -22. We have
already agreed with the need, but categorically denounce sections 17 -
22.
The Minister has stated on several occasions that he requires these
sections for him to adequately make fisheries management agreements
with the commercial sector for periods more than a year in length.
This is argument is unsustainable. The existing Fisheries Act does not
prevent the Minister from reaching agreement for longer periods of
time. The following section of the Act may be the means that the
Minister can enter into long term agreements:
Fishery leases and licences
7. (1) Subject to subsection (2), the Minister may, in his absolute
discretion, wherever the exclusive right of fishing does not already
exist by law, issue or authorize to be issued leases and licences
for fisheries or fishing, wherever situated or carried on. Idem
7. (2) Except as otherwise provided in this Act, leases or licences
for any term exceeding nine years shall be issued only under the
authority of the Governor in Council.R.S., c. F-14, s. 7.
Fees
8. Except where licence fees are prescribed in this Act, the
Governor in Council may prescribe the fees that are to be charged for
fishery or fishing licences. R.S., c. F-14, s. 8.
Minister May Cancel License
9. The Minister may suspend or cancel any lease or licence issued
under the authority of this Act,
if
(a) the Minister has ascertained that the operations under the
lease or licence were not conducted in conformity with its
provisions; and (b) no proceedings under this Act have been
commenced with respect to the operations under the lease or
licence.
It would appear that the only difficulty, with respect to the
elimination of sections 17 - 22, is that the Minister would then have
to adhere to the existing fisheries law - and, equally importantly,
the Minister would also have to respect the public's right of access
to fish.
By allowing sections 17 - 22 to pass unimpeded, we give the Minister
the power, and the right, to change the public fishery to a mishmash
of private, exclusive fisheries - ones that could very well exclude
all those who have traditionally exercised this right of access.
STEPS TO A FAIR AND PUBLIC FISHERY
Those who have read the proposal know that this is a unsavory law and
that bad laws are the worst sort of tyranny. Several important and
immediate steps must be taken -
1. Each Member of Parliament must register their abhorrence of this
legislation that allows a Minister to covert a public right to a
private exclusive right that the Minister can dispose of at will. They
must be asked to have sections 17 - 22 deleted - thereby ensuring that
any ensuing management agreements are subject to existing law and that
equal right of access is accorded to every adult Canadian citizen.
2. Each provincial and territorial government, and every recreational
angling, conservation, commercial fishery, civil liberties group,
organization or association must clearly register their objections to
sections 17 - 22 of the proposed Act, the deletion of which will not
effect the remainder of the Bill, but would ensure that the fishery
remains as a public resource.
3. All interested parties, noted above,
must contact - their Members of Parliament - the applicable agencies
of their provincial governments - the Federal Minister of Fisheries -
to ensure that those rights so dearly won nearly 800 years ago are not
lost forever.
This Act has been before three or four previous Ministers and they
come and go - but, the bureaucratic structure of DFO with its
intendant corporate mentality that has little to do with the
betterment of recreational fisheries or community fishery sectors
remains. By opposing this unfair, devious and unwarranted usurpation
of our right of access we are in reality facing a department with
arrogance unmitigated, agendas most secret, and their value under
public scrutiny and debate.
Prepared for;
Trout Unlimited - Nova Scotia
Fisheries Institute of Nova Scotia
Nova Scotia Wildlife Federation
Nova Scotia Salmon Association
Canadian Association of Smallmouth Anglers
4/7/98
Contact -
Michael N. Robinson
Fisheries Institute of Nova Scotia
1501 Corkum Burns Road
RR #2 Wolfville, Nova Scotia
B0P 1X0
Telephone: (902) 542-9110
Facsimile: (902) 542-4018
E-Mail: [log in to unmask]
References:
Magna Carta
BNA Act
Hansard, July, 1988 - Hon. T. Siddon, Minister, Fisheries & Oceans
Canada Statutory Instruments Act Bill C-62 Tragedy of the Commons,
Science, Vol.162,1968 Abolition of the Public Right of Fishery,
Christopher Harvey Q.C. Russell & DuMoulin, Vancouver
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