Canadian Maritime Law Update: 2006

In its preamble and guiding principles, the proposed Act reflects me growing emphasis on world-wide fisheries management strategies, sustainable development, ecosystem based management and me use of the precautionary principle in the management of fisheries and the conservation and protection of fish and fish habitat.9 Regarding the precautionary approach, clause 6(b) of Bill C-45 says that the Minister and every person engaged in the administration of the Act must seek to apply the precautionary approach such mat, if there is bom high scientific uncertainty and a risk of serious harm, they will not use a lack of adequate scientific information as a reason for failing to take, or for postponing, cost effective measures for the conservation or protection of fish or fish habitat mat they consider proportional to the potential severity of the risk. In Bill C-45, me Minister no longer has absolute discretion in issuing licenses but instead, may make regulations for the issuance of licenses and for setting out licence eligibility criteria.12 Further, under the new regime, licences will be issued by licence officers, who can refuse to issue a licence to an applicant who otherwise meets the eligibility criteria when me applicant has failed to submit required information; has entered into agreements intended to by-pass licensing regulations; has failed to provide evidence that all amounts to be paid under a fisheries management agreement have been paid; or has filed to pay fines, fees or penalties prescribed by the Act.13 Under the new regime, applicants whose licenses are subject to certain agreements mat are contrary to the regulations can be denied a licence.14 Further, where such an agreement is entered into after the issuance of a licence, the licence holder can be found to have contravened the regulations.15 There is concern that these provisions are intended to prohibit trust agreements and lease arrangements, which are pervasive in the fishing industry and secure millions of dollars worth of licenses and quotas.