Response to the Report of the
Independent Panel on Access Criteria
for the Atlantic Coast Commercial Fishery

The Honourable Robert Thibault, P.C., M.P.
Minister of Fisheries and Oceans
November 8, 2002

Table of Contents

Introduction

Response to the IPAC Report

1. Framework of Principles and Criteria

Recommendation #1: Overarching Principles
Recommendation #2: Conservation Criterion
Recommendation #3: Definitions of Traditional Criteria

Response

2. Other Recommendations
   

Recommendation #4: Atlantic Wide Fisheries Access Board

Response

Recommendation #5: Fisheries Resource Conservation Council

Response

Recommendation #6: Nunavut

Response

Recommendation #7: Aboriginal Participation

Response

Appendix A: New Access Framework

Introduction

With more than 42,000 commercial fishers in Atlantic Canada landing $1.7 billion annually and exploiting a fluctuating resource in fully subscribed fisheries, the opportunity to access more of the resource when fisheries increase can lead to competition and conflict. It is the Minister of Fisheries and Oceans who is ultimately responsible for the successful resolution of issues arising from the granting of new access.

Developing advice for the Minister on policy in relation to access and allocation decision-making is part of the Atlantic Fisheries Policy Review (AFPR). The AFPR is a collaborative process aimed at developing a consistent and cohesive policy framework to guide the long-term management of Canada’s Atlantic fisheries. The policy review is divided into two phases: Phase I is the development of the policy framework and Phase II is the development of operational strategies to implement the framework.

In the Summer of 2000, access and allocation issues specifically related to increasing fisheries became a focus for the Department of Fisheries and Oceans (DFO) and the Atlantic provinces, Quebec and Nunavut who together form the Atlantic Council of Fisheries and Aquaculture Ministers (ACFAM). The Minister of Fisheries and Oceans proposed the creation of an independent panel to address this often contentious issue, with the intention that the panel’s work would accelerate a portion of the work that was anticipated during the implementation phase of the AFPR.

In the Winter and Spring of 2001, the Minister shared a proposal for the panel’s mandate and composition with his ACFAM counterparts, as well as with a group of industry leaders (the External Advisory Board (EAB) to the AFPR) for their input and comment. By late June 2001, there was consensus among ACFAM members on the Terms of Reference and composition for the Independent Panel on Access Criteria (IPAC).

The IPAC Terms of Reference tasked the Panel with providing recommendations on the decision-making criteria and process surrounding who will be granted new access to a commercial fishery that has undergone a substantial increase in resource abundance or landed value, or to a new or emerging fishery (Phase III Commercial Licenses). The IPAC was asked to consider only access (the granting of new licenses) as opposed to allocation (the amount or share a license holder may harvest).

The IPAC was composed of five individuals noted for their ability to be neutral and objective, their expertise and their eminence in their field. Mr. Arthur Kroeger, C.C., chaired the IPAC. The IPAC panelists were Professor Martha Jackman, Professor David Newhouse, Dr. Gordon Munro and Dr. Paul LeBlond.

The IPAC began its work immediately upon being announced on June 28, 2001, with a period of review and study of the relevant background material. From August 20 to October 23, 2001, the IPAC held consultations with a total of 66 meetings throughout Atlantic Canada, Quebec and Nunavut, and in Ottawa. The consultations included meetings with DFO officials, all ACFAM jurisdictions, Aboriginal organizations, key fisheries stakeholders and appearances before the House of Commons and Senate Standing Committees on Fisheries. The IPAC also wrote to 205 other individuals and organizations soliciting their written input to the process.

The IPAC presented its Report to Minister Robert Thibault on March 28, 2002. Following the public release of the IPAC Report on April 5, 2002, Minister Thibault undertook a period of consultation before issuing this Response. These consultations included soliciting comments from industry leaders, Aboriginal groups and ACFAM jurisdictions as well as an ACFAM meeting dedicated to discussing the IPAC Report with the Provinces and Nunavut.

Response to the IPAC Report

The Report of the IPAC is a significant contribution to the important area of access policy. IPAC members undertook an exceptionally challenging task. Correctly concluding that there is no magic formula and no widely accepted solutions to the complex and challenging issue of policy governing access to increasing commercial fisheries, the IPAC has succeeded in bringing further clarity to the many issues surrounding access decision-making. Their work is greatly appreciated.

The IPAC made seven recommendations which, for the purpose of this Response, have been divided into two areas. The first three recommendations, relating to access principles and criteria, are addressed together in Part 1: Framework of Principles and Criteria. The remaining recommendations are addressed in Part 2: Other Recommendations.

1. Framework of Principles and Criteria

The IPAC made the following three recommendations related to principles and criteria to guide decision-making for granting new access to a commercial fishery that has undergone a substantial increase in resource abundance or landed value, or to a new or emerging fishery beyond the initial commercial licencing stage. The IPAC noted that DFO’s New Emerging Fisheries Policy sets out the process for granting licences in new and emerging fisheries to those who developed the fishery through its first two (feasibility and exploratory) stages. The IPAC chose to focus specifically on access to new or emerging fisheries beyond the initial commercial licencing stage as they found the New Emerging Fisheries Policy to be a satisfactory approach.

IPAC Recommendation #1: Overarching Principles

The IPAC noted the absence of explicit overarching principles for the granting of access, and argues that such principles are required because they reflect fundamental social values and constitutional norms that underpin the Atlantic fishery.

The IPAC therefore recommended that, as a first step towards improving mechanisms for granting access, all access decisions should be based on three overarching principles, which are listed below in order of priority:

1. Conservation of the Resource
2. Recognition of Aboriginal and treaty rights; and
3. Equity
   

IPAC Recommendation #2: Conservation Criterion

The IPAC’s view was that conservation is of such importance that it should stand both as an overarching principle and as an explicit criterion of access. Panel members were concerned that, while conservation is an implicit criterion of access, implicit criteria can be easily relegated to the background, with potentially disastrous consequences for the future of the resource.

The Panel therefore recommended that conservation be made an explicit criterion of access, universally applicable in all decisions regarding access, and that conservation be recognized as the primary access criterion.

The Panel went on to define the conservation criterion as follows:

"The conservation criterion requires that decisions regarding access promote conservation, not only of discrete stocks, but of fish habitat and the ecosystem as a whole. The application of the criterion requires that priority be given to environmentally responsible fishers engaging in sustainable fishery practices, subject to verifiable assessment based on past practice, susceptibility to effective monitoring, direct and indirect contribution to the enhancement of knowledge and other factors related to conservation. In view of its pre-eminence as a principle underlying Canadian fisheries management, the conservation criterion should be applied to all access decisions, independently of any other criteria which might also be appropriate."

IPAC Recommendation #3: Definitions of Traditional Criteria

The IPAC was mandated to provide clearer definitions of the traditional criteria for granting access. The following criteria, definitions and applications were recommended:

Response to the IPAC Report: A New Access Framework of Principles and Criteria

When combined, the first three recommendations of the IPAC Report create a cascading framework of principles and criteria (see diagram in Appendix A). This New Access Framework will guide all decisions on new or additional access to Atlantic commercial fisheries which have undergone substantial increases in resource abundance or landed value. For greater clarity, the New Access Framework will be applied in the manner now set out.

The Principles

The access issue in question will first be considered against each of three principles, listed in order of priority:

The Criteria

The primary criterion, the conservation criterion, is to be considered first and independently of the other access criteria. The IPAC’s definition of the conservation criterion is adopted.

Following the analysis of the access issue against the conservation criterion, the access issue will be further considered against the three traditional criteria. The order of priority of these criteria will depend on the specific characteristics of the fishery in question, as outlined in the IPAC’s proposed definitions for traditional criteria

2. Other Recommendations

IPAC Recommendation #4: Atlantic Wide Fisheries Access Board

An independent Atlantic-wide advisory board be established that would serve as a default mechanism to address those decisions regarding access that cannot be resolved in a satisfactory manner within Atlantic Canada.

Response to the IPAC Report:

This recommendation is not being accepted. While the IPAC presented a thorough analysis of the desired qualities, potential models and options available for a formalized mechanism for access decision-making in Atlantic commercial fisheries, the panel also recognized that there exist a number of successful, often intra-regional mechanisms which have been developed by the fishing industry and DFO to grant access. Examples include Integrated Fisheries Management Plans processes and Developing Species Advisory Boards.

DFO will continue to focus on successful existing mechanisms for access decision-making and will promote the desired qualities (expert, transparent, fair) and characteristics (inclusive, accessible, principled and accountable) of decision-making processes as developed by the IPAC. The AFPR will be guided by these considerations as it continues to examine access and allocation policy. As well, the Minister may consider the use of ad hoc panels to address any specific access disputes that may arise. The Minister will continue to make the final decisions on all access and allocation matters.

IPAC Recommendation #5: Fisheries Resource Conservation Council

The IPAC recommended that the Fisheries Resource Conservation Council (FRCC) be called upon, as allowed for in its original terms of reference, to take on responsibility for providing advice on the conservation of pelagic and shellfish species, as well as on groundfish species.

Response to the IPAC Report:

The issue of expanding the mandate of the FRCC is currently being considered as part of a review led by Dr. Scott Parsons. The proposal forwarded by the IPAC has been referred to that exercise.

IPAC Recommendation #6: Nunavut

The IPAC concluded that the new territory of Nunavut does not enjoy the same level of access to its adjacent fisheries as do the Atlantic provinces, and was of the view that every effort must be made to remedy this situation.

The IPAC recommended:

No additional access should be granted to non-Nunavut interests in waters adjacent to Nunavut until the territory has achieved access to a major share of its adjacent fishery resources.

Response to the IPAC Report:

This recommendation as it pertains to new access is accepted.

The aspirations of the government and people of the new territory of Nunavut to increase and diversify their fisheries sector are and will continue to be supported by DFO. DFO has worked to assist Nunavut in achieving its goals in recent years by increasing Nunavut interests’ allocations for turbot and shrimp, the two major commercial fisheries in that area. DFO has also worked with Nunavut to develop emerging fisheries (Canada-Nunavut Memorandum of Understanding on Emerging Fisheries Development, August 16, 2000).

In 1997, as part of the 5-year turbot management plan, a commitment was made to allocate Nunavut 50% of any increase to the Subarea 0 (either Division A or B) turbot quota. There have been two quota increases since then, both in Division 0A. Nunavut received 100% of these increases on both occasions, resulting in Nunavut having the major share of turbot (58%) in Subarea 0 in 2002. Further increases will be provided within the spirit of this recommendation.

In 2002, the Nunavut share of the northern shrimp quota in its adjacent waters (Shrimp Fishing Areas 0-3) is 25%, which is not the major share. Therefore, no additional access will be granted to non-Nunavut interests in waters adjacent to Nunavut until the territory has achieved access to the major share of these resources, subject to Aboriginal and treaty rights.

Fulfillment of this recommendation will not affect the current status of other participants in these fisheries. Other issues related to Nunavut’s share or allocation of fisheries resources adjacent to the Territory will be addressed through other processes.

IPAC Recommendation #7: Aboriginal Participation

In view of the constitutional status of Aboriginal people’s rights relating to the fishery, the IPAC recommended that:

Aboriginal peoples be significantly and effectively represented in all decision-making processes related to access in Atlantic Canada.

Response to the IPAC Report:

The advice of the IPAC is consistent with the intentions of DFO to work more closely with Aboriginal peoples on fisheries matters. DFO is actively working on many fronts in this regard, and this recommendation will be incorporated into its approach to meet this goal.

Appendix A

New Access Framework