Review of Fisheries Substitute Medical Operator Policy Required

June 26, 2019

Hon. Michel P. Samson submitted a letter to the editor of the Chronicle Herald on June 22, 2019 focused on the owner operator policy, specifically the substitute medical operator section.

This is the link to letter as appeared in the Chronicle Herald.

As noted in The Chronicle Herald last Saturday (“Cape Breton lobsterman gets court’s OK for replacement to trap under his licence,” June 15), Lester Martell has won at least a temporary reprieve from being forced by the federal government through the Department of Fisheries and Oceans (DFO) to sell his lobster licence. Now, it’s time for the federal minister to permanently remove this threat to those who, like Martell, are unable to fish their licence due to illness or disability.

A robust inshore lobster fishery is clearly good for Nova Scotia, and especially for our coastal communities. This objective is achieved in part by sensible federal policy that keeps licences in individual hands through the owner-operator policy.

Almost 40 years ago, the policy was amended to protect a licence holder who was ill or disabled. In that case, the licence owner could apply to appoint a substitute operator to operate their vessel and fish their licence. Typically, the substitute operator was a family member, deck hand or close friend. While the policy indicated that there would be a five-year limit to the use of the substitute operator, this does not seem to have been enforced by DFO.

Enforcement changed in 2015. Claiming the substitute operator policy was open to abuse, DFO decided to enforce the five-year limit and leave disabled or ill licence holders with little choice but to sell their licence if, after five years, they were still unable to fish. The effect of the policy was discrimination based on disability or medical condition, contrary to the Charter of Rights and Freedoms.

Our law firm represents several licence holders who have decided to challenge this policy. In the case of Martell, as reported in The Chronicle Herald, we were required to make an emergency application to the Federal Court to stay the decision denying an extension so that the licence holder could use a substitute operator for the 2019 spring lobster season. The judge agreed with our application and ordered DFO to grant an extension.

The five-year limit to the substitute medical operator policy must be reviewed. DFO can apply a simple test to ensure that lobster licence holders using the policy continue to maintain care and control over their licence if there are any legitimate concerns of abuse. Forcing licence holders to sell their licence after five years because they are disabled or have a medical condition that prevents them from going on the boat is both wrong and, in our view, unconstitutional.

It is our hope the fisheries minister orders DFO to stop enforcing this five-year limit and undertakes an immediate review of this policy.

Hon. Michel P. Samson, Chair- Regional Fisheries Group, Cox & Palmer