Federal judge throws out former fisheries minister's decision on lobster licence

For the first time in more than 40 years, Nova Scotia lobster fisherman Donald Publicover has hope the federal government might exempt him from an old policy, allowing him to provide for his family.

Publicover is one of roughly 80 lobster fishers left across the Maritimes with a Category B licence, which originally applied to anyone who also had work outside the lobster fishery when it was created in 1976.

They were cut back to using 75 traps, which is about one-third of a regular Category A licence. 

At the time, Fisheries and Oceans Canada (DFO) created this "moonlighter policy," aimed at removing people from the fishery as a conservation method. These licences can't be sold or handed down to a family member, and disappear when owners die.

But Publicover, who has leased out his licence on a medical exemption since 2017, wants to sell. 

He said a sale price of roughly $200,000 would allow him and his wife to better support their two adult children, who have cerebral palsy, by either renovating the family home or finding them a more accessible place.

"I want to make it easier for them, really, and better off," Publicover said Saturday.

Publicover has asked for exemptions many times before, and Bernadette Jordan, the former fisheries minister, was the latest to dismiss his request in August 2020, citing conservation issues.

"Although I appreciate the difficult situation Mr. Publicover is currently facing, in light of all the relevant circumstances, I will not be making an exception to the policy in this case," Jordan wrote.

Federal judge sets aside Jordan's decision

But then Richard Norman, of the law firm Cox & Palmer, represented Publicover and asked for a judicial review of Jordan's decision.

Last month, Federal Court Justice Elizabeth Heneghan released a judgment setting aside Jordan's decision and returning it to the government for redetermination.

Heneghan said the minister's decision was "unreasonable" as it did not meet the standard of being "transparent, intelligible and justified."

In particular, Heneghan said Jordan's letter does not explain how allowing Publicover to sell his licence undermines the goals of the DFO policy. Further, Jordan had failed to address Publicover's personal circumstances and outline why his situation did not warrant the "positive exercise of discretion."

Heneghan's ruling means Publicover's request goes back to the federal government. He is hopeful the new fisheries minister, Joyce Murray, overturns the entire policy.

"This does give me a lot of hope for getting this done and over with ... and, hopefully, the other fishermen can make a living onto it, too," he said.

Michel Samson is a lawyer with Cox & Palmer, which is representing many other Class B fishermen lobbying to change what they consider an arbitrary and outdated policy.

Samson, also a former Nova Scotia MLA, said DFO's conservation argument no longer makes sense. The small group of Category B licences represents only one per cent of traps fished across both the Maritime and Gulf fishery regions, he said.

DFO has a long achieved what it was trying to do with the Category B policy, Samson said, but it is still treating this policy as a "life sentence" for these licence holders, and it can no longer be justified.

He also said this group is growing smaller, as six fishermen holding these licences died last year.

"We have several of our licence holders who either have previously battled cancer or are actually battling cancer right now, so their time is of the essence," Samson said.

DFO has until Feb. 7 to appeal Heneghan's decision.

DFO comment

Claire Teichman, the press secretary for the federal fisheries minister, said the sustainable management of fish stocks is a high priority for DFO. 

"Clear and predictable rules for fish harvesters must be established in order to ensure diversity and abundance of stocks and habitats," she said in a statement.

"Historically, Category B licences allowed for modest levels of harvesting by harvesters who didn't depend on the lobster fishery for their income. Since the objective of these licences is linked to the individual's attachment to the fishery, these licenses are not eligible for transfer."