The Prince Edward Island government has filed a statement of claim against the Government of Canada and the Department of Fisheries and Oceans that challenges the constitutional power of the federal minister to make licensing and other management decisions. The statement of claim was filed at the Supreme Court of Prince Edward Island this morning.
The statement of claim alleges the Minister of Fisheries and Oceans, by failing to establish and adhere to an open, transparent, accountable, fair and even-handed process, has violated the rule of law as guaranteed by the Canadian constitution, violated the Oceans Act by putting conservation at risk, failed to conform to his own policies, violated his public trust obligations and failed to exercise licensing authority in accordance with the principles of procedural fairness.
“The Prince Edward Island government, along with the fishing industry, has been seeking to achieve a fair and equitable allocation of a number of species over the past number of years through long and protracted negotiations, but we are not even close to a resolution,” said Agriculture, Fisheries and Aquaculture Minister Kevin MacAdam. “Although we are reluctant to initiate legal action, it appears to be the only alternative remaining to us if we are to obtain justice for Prince Edward Island fishermen, plant workers and their families.”
Mr. MacAdam said that in the past, when the federal minister’s authority has been challenged, the Department of Fisheries and Oceans has proposed to review the Fisheries Act. “Unfortunately, it has never followed through on the commitment,” he said.
The statement of claim says that Prince Edward Island’s allocation of a number of species, including northern and gulf shrimp, snow crab and bluefin tuna does not take into account the application of the criteria of adjacency, historic dependence and economic viability. It claims that groundfishermen in Prince Edward Island are being treated differently than those in neighbouring provinces. It further states that the establishment of the herring seiner exclusion zone was made in error and that the herring fishery is being put at risk. It also alleges that partisan and other political considerations have been taken into account when fisheries management, licensing and allocation decisions are made.
“The provincial government’s position is based squarely on a number of fundamental legal principles agreed to by federal and provincial governments, but those principles have been seriously violated by the federal minister,” said Mr. MacAdam. “Prince Edward Island’s $350 million fishing industry contributes a larger percentage share to our economy than any other province, yet we continue to be adversely affected by unfair and arbitrary decisions that affect its continued development. Our goal is to ensure that our fishermen receive fair and equitable treatment under the law.”
BACKGROUNDER
The Prince Edward Island fishery is one of the three largest industries in the province, and accounts for approximately $350 million annually to the economy. It is more dependent on the fishery than any other province, but is not receiving a fair and equitable allocation of a number of resources.
Gulf of St. Lawrence Shrimp Fishery
Preliminary landings for the Gulf shrimp fishery show that Quebec reported approximately 61 percent of landings, New Brunswick 19 percent, and Newfoundland and Labrador 19 percent. Prince Edward Island has a temporary allocation equivalent to 0.74 percent. Prince Edward Island has been denied a permanent and larger share of the quota.
Northern Shrimp
Prince Edward Island is the only Atlantic province and territory without a permanent licence. Despite frequent increases elsewhere, its temporary allocation remains at about one percent of the Total Allowable Catch (TAC). Furthermore, the adjacency principle in granting licenses appears to have been violated.
Gulf Snow Crab
Although Prince Edward Island fishermen were among the first to be engaged in the fishery, no access to the resource was given to Prince Edward Island between 1977 and 1984. In 1985, it received 16 exploratory permits restricted to two small areas offshore. These were subsequently converted to permanent licenses, and an allocation was provided to non-traditional fishermen. Prince Edward Island’s share of the non-traditional fishery has been reduced from 13.3 percent to 5.074 percent while quotas have increased in New Brunswick and Quebec. The minister has at the same time denied an increase in the permanent allocation to Prince Edward Island crab fishermen.
Groundfish dependent fishermen
Groundfish dependent fishermen have also seen a reduction of their share of crab and shrimp resource and have been advised that 2004 was the last year for their allocation of crab. No such conditions have been imposed on groundfish dependent fishermen in other provinces.
Bluefin Tuna
Over the course of this fishery, Prince Edward Island’s share of the resources has been reduced from 54 percent to 30 percent. The implementation of a fleet quota system in 2004, based on catch history, fails to account for the higher number of licences held by Prince Edward Island fishermen. They hold approximately 50 percent of the licenses, but receive only about 30 percent of the quota. Fishermen in Southwest Nova thus receive an average of 3.62 metric tonnes per license holder compared to 0.48 metric tonnes for Prince Edward Island fishermen.
The Herring Fishery
New herring fishery regulations which were implemented in 1983 established a 25 fathom exclusion zone off Prince Edward Island. These were amended in 1984, but an administrative error was made which related to the boundary line, which reduced the exclusion zone and the protection afforded to the inshore herring resource, spawning beds and other fish habitat. Repeated requests to re-establish the 25 fathom exclusion zone have been denied, along with the failure by the federal minister to apply the precautionary principle.