Nova Scotia

2 N.S. lobster fishermen take licence fights with DFO to court

Dana Robinson and Lester Martell, who both have health issues, are challenging federal fisheries rules that cap the number of years they can hire a replacement to catch lobster under their licences.

Dana Robinson and Lester Martell seek judicial review of federal decisions

Lobster traps are shown in Eastern Passage, N.S., on Jan. 9, 2019. (Robert Short/CBC)

A second Nova Scotia fisherman with health issues is joining a legal fight to challenge federal fisheries rules that cap the number of years they can hire a replacement to catch lobster under their licences.

Lawyer Richard Norman filed in Federal Court separate requests for judicial reviews on behalf of Dana Robinson of Parkers Cove, N.S., and Lester Martell of L'Ardoise, N.S., earlier this month.

"As long as people have control over their business, and are operating their business, my clients believe that they should be able to use their licences to earn an income," said Norman.  

Both men are challenging March 2019 decisions by the deputy minister of the Department of Fisheries and Oceans to deny their requests to continue to use a substitute operator.

A fisheries policy states operators who provide "acceptable medical documentation" can "designate a substitute operator for the term of the licence." But only for five years.

The decisions Martell and Robinson received said their concerns about financial hardship and a succession plan weren't enough to warrant making an exception to the five-year rule.

The fishermen argue in court documents that DFO has failed to take into account their medical conditions or disabilities, and say the policy is unconstitutional.

"They should be accommodating them and letting them be accommodated and be a part of the industry rather than saying get better or get out," said Norman.

Dana Robinson's boat is shown. He can only stand for a few hours a day and can't operate the boat himself. (Submitted by Dana Robinson)

In a statement, DFO spokesperson Frank Stanek said the department "has consistently been strictly applying" the five-year limit since 2015 due to concerns it had previously been too flexible, allowing people to circumvent policies meant to prevent licences from being controlled by third parties.

He said the rules are an effort to "maintain an economically viable inshore fishery by keeping the control of fishing licences in the hands of independent owner-operators."

Robinson, 58, has an owner-operator licence to catch lobster in the Bay of Fundy. His family has fished since the 1920s and he hopes his children are able to continue the work.

But a leg condition prevents him from standing for more than four hours a day, making it impossible to get out on his boat. 

"Any other job that would be no problem," he said. "It belittles you, continuous fighting with [the federal government]. It's just not fair. It's my licence. I paid for it, I paid all the fees on it. We keep it up to date, we do everything we're supposed to do. It's just policy. It's not law, it's policy." 

Initially, Robinson took his case to the Supreme Court of Nova Scotia but was told he'd have to go to Federal Court. He said he doesn't want to sell his licence and he's still waiting to hear if he'll be able to use a substitute during the fall season. 

"The boys buy the gear, get everything ready. Here we are having to wait in limbo to see what we can do," he said. 

Lobster boats head from West Dover, N.S., on Nov. 29, 2016. (Andrew Vaughan/The Canadian Press)

Norman said the federal government's push to try to prevent controlling agreements has backfired. He said while his clients aren't physically on their boats every day, they're still running their own businesses and earning a living off their licences.

"It's taking that owner-operated policy too far and actually is having the opposite effect that I think the government actually wants to have, by preventing people with disabilities and medical conditions from continuing on in the industry," he said. "They are owner-operators, the kind of businesses and people that the government supposedly wants to encourage."

Norman said he's been in touch with a handful of other fishermen who are appealing decisions.  

Robinson said he'll keep challenging the policies as long as he can afford to. He said other fishermen have even offered financial support.

"I've had more people call me from different parts of the province, they're in the same issue. They want to take it to court too," he said. 

Martell declined to comment on his case.

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About the Author

Elizabeth McMillan is a journalist with CBC Nova Scotia. Over the past nine years, she has reported from the edge of the Arctic Ocean to the Atlantic Coast and loves sharing people's stories. She can be reached at elizabeth.mcmillan@cbc.ca

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