Thank you, Mr. McDonald.
Good afternoon, everyone. Thank you for the opportunity to be here and to share some of my thoughts and experiences working with harbour authorities. I've prepared a written statement, which I will read now.
I'm a lawyer from Nova Scotia with a focus on marine law, starting with my legal studies at Dalhousie University in Halifax and continuing with my current practice in the historic seaport of Yarmouth. I now serve fishing and harbour clients throughout the three maritime provinces, assisting with lease and licence agreements, board governance, dispute resolution and litigation.
I appear before you today to offer my knowledge and experience as a marine lawyer working with small craft harbours and coastal communities, and to inform you that they need your help.
Before delving into specific issues, I will provide an example that speaks to the harbour authority environment and the commitment of its employees and volunteers. The harbour authority of Pinkney's Point is located at the end of a long road that is under the constant threat of erosion, stretching out from the mainland and winding through salt marshes. The community numbers about 300 and support services are not readily accessible.
This harbour authority formerly employed a supervisor named Benjamin—known as “Benny”—Smith, a gregarious man, well-known to the community. Benny died a year ago, on October 27, 2017, at the age of 67. He died while attempting to rescue shellfish harvesters who appeared to be stranded. His boat ran into mechanical problems and capsized not far from shore.
Benny exemplified the individual types who volunteer and work for harbour authorities—a hard worker, invested in the community, and willing to risk his life to help others. These are qualities that can be found in some measure on all harbour authority boards. These organizations and the people who run them are a tremendous asset to the Canadian economy and, I dare say, represent the spirit of this country as we would like it to be known.
There is no doubt that the east coast is dependent on an ocean-based economy, but Canada is also a coastal nation. We have the longest coastline in the world and our northern territories are poised for development. This is the time to fortify our partnership with coastal communities to build confidence and trust.
Although I have spent some time in dialogue with harbour authorities in British Columbia, my focus has naturally been more calibrated to the operational concerns of eastern Canada. It should be noted, however, that there are significant differences. In British Columbia, managing pleasure craft and the presence of so-called “live-aboards” is of greater concern than congestion related to commercial fishing vessels. While east coast harbours are turning away commercial vessels in addition to recreational vessels due to capacity constraints, their west coast counterparts are under capacity for commercial vessels and are accepting recreational vessels simply to ensure the viability of their harbours.
This phenomenon is linked to geography, climate and the absence of an owner-operator policy on the west coast. Harbour authorities operating in Atlantic Canada must contend with intense environmental pressures. The tidal range in Nova Scotia and the Bay of Fundy is significant, ranging from 20 to 50 feet. Harbour infrastructure is exposed to hurricane weather and winter storms that travel northward from the Gulf of Mexico.
Fishing activities take place year-round. There are different start and end times depending on the catch. By illustration, the lucrative lobster fishery of southwest Nova Scotia opens on the last Monday of November and fishermen are most productive between November and January, although the season is open until May.
In recent years, east coast fishermen have invested in significantly larger vessels to facilitate the efficient transportation of lobster traps and to enable them to fish safely further from shore. This shift is not without controversy and many harbour managers feel burdened with the expectation that they must accommodate these larger vessels.
Many harbours maintain wait-lists and harbour managers can refuse entry, but there is little they can do in practice to prevent new vessels from tying up. To a significant degree, they rely on the goodwill of home port and transient fleets to abide by harbour rules. If a vessel ties up without permission and there is no berthage agreement in place, there is very little they can do, short of reporting the vessel to the authorities and taking the owner to court.
The Fishing and Recreational Harbours Act and regulations provide for enforcement by designated enforcement officers, and a number of business managers within DFO have this certification; however, in my experience, the Department of Fisheries and Oceans has consistently withheld this support. Harbour authorities suffer from lack of direction from DFO, with respect to: one, the obligation to promote public access; two, the identification and rectification of safety issues; three, the removal of derelict vessels; and four, the relationship to other federal agencies—that's the relationship of harbour authorities and the small craft harbours program to other federal agencies such as the RCMP, Transport Canada and the coast guard branch of DFO.
Exacerbating the problem and these issues that I've enumerated is the fact that other agencies such as the RCMP believe DFO to be responsible for addressing adverse situations that arise at small craft harbours. I have had conversations to this effect directly with RCMP officers in the thick of these types of situations.
The heart of the issue, in my view, is the responsible delegation of administrative power. As recognized by the Federal Court in the case of Archer v. Canada (Attorney General), 2012, harbour authorities are tasked with exercising public power in accordance with the minister's mandate as provided by section 4 of the Fishing and Recreational Harbours Act. However, the arm's-length model asserted by the harbour authority in the Archer case is only applicable to the exercise of private commercial power. As noted in the case of Morton v. Canada (Fisheries and Oceans), 2015, also a Federal Court case, “Unlimited discretion cannot be conferred on a sub-delegate, and supervisory control over a delegate should be retained.” In this case, the delegate I'm referring to is the harbour authority that has been given responsibility by small craft harbours.
Separate from the question of whether enforcement powers can be delegated by a lease agreement or otherwise, harbour authorities are simply not equipped to assume all the minister's duties in relation to small craft harbours. This is a question of capacity.
None of my comments are intended to denigrate the significant efforts made by DFO employees to promote the success of the program; however, I believe there is room for a better partnership, one that is respectful of and responsive to the needs and limitations of coastal communities. In my view, the minister's statutory mandate calls for a systemic shift within DFO to increase the supports available to harbour authorities.
Thank you.