Vol. 145, No. 4 — February 16, 2011

Registration

SOR/2011-12 February 4, 2011

FISHERIES ACT

ARCHIVED — Regulations Amending the Atlantic Fishery Regulations, 1985

P.C. 2011-47 February 3, 2011

His Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to section 43 (see footnote a) of the Fisheries Act (see footnote b), hereby makes the annexed Regulations Amending the Atlantic Fishery Regulations, 1985.

REGULATIONS AMENDING THE ATLANTIC FISHERY REGULATIONS, 1985

AMENDMENT

1. Part III of Schedule XIII to the Atlantic Fishery Regulations, 1985 (see footnote 1) is replaced by the following:

COMING INTO FORCE

2. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issue

The issue is the attribution of MacLeod’s Ledge, an area that has traditionally been fished by lobster harvesters from Lobster Fishing Area 24 (LFA 24) in Prince Edward Island, yet, as current boundaries were drawn, was located in LFA 22, belonging to the Magdalen Islands.

Through the Atlantic Fishery Regulations, 1985 (AFR), Fisheries and Oceans Canada (DFO) has established 41 LFAs across the provinces of Quebec, New Brunswick, Nova Scotia, Newfoundland and Labrador, and Prince Edward Island. These LFAs were introduced in 1985 as a numbering system, allowing each LFA to manage and allocate its own fishery resources. The LFAs allow for clearly defined boundary lines in terms of latitude and longitude and restrict license holders to fish only in the districts for which they hold a license. DFO and the lobster industry are working collaboratively to develop integrated management plans for the lobster fisheries in the 41 different fishing areas. These plans take into account the particularities of each lobster fishing area and set out management measures accordingly.

In May of 2002, a number of fishers from North Cape, Prince Edward Island, who held licenses for LFA 24 received notices from DFO that they were fishing illegally in part of LFA 22. These fishers claimed that Prince Edward Island fishers have fished this area for generations and wanted the boundary amended accordingly. Since May 2002, access to MacLeod’s Ledge has been granted to the Prince Edward Island lobster fishers from LFA 24 through amendments to licence conditions and the issuance of variation orders, as an interim solution until a decision could be made on the way forward.

Since 2002, DFO has tried, unsuccessfully, to find a mutually acceptable solution to the lobster industry stakeholders in Quebec and Prince Edward Island to resolve the boundary disputes.

In 2005, it was decided that an independent review of the situation was needed. The outcome of this independent review was a recommendation to transfer the area known as MacLeod’s Ledge from LFA 22 to LFA 24.

Objectives

The amendments make the boundaries of the LFAs reflect the traditional and current use of MacLeod’s Ledge in the lobster fishery.

The amendments provide the basis for a sustainable and orderly lobster fishery for Prince Edward Island fishers in this area, and allow them to plan their fishing activities on a long-term basis. It permits DFO, in consultation with industry, to develop and apply management plans with the intent of meeting conservation and sustainability objectives by attributing the zone at stake to the fishers currently using it.

The amendments make the AFR consistent with current practices and reduce the administrative burden by eliminating the need to amend approximately 100 licence conditions and issue variation orders on an annual basis.

Description

The amendments incorporate MacLeod’s Ledge, a 130 km² portion of LFA 22, into LFA 24. The boundary now lies approximately 166 km from Havres-Aubert on the Magdalen Islands, and 9.7 km from North Point, Prince Edward Island.

The shaded area in Figure 1 demonstrates the portion of the boundary that has moved from LFA 22 (Magdalen Islands) to LFA 24 (Prince Edward Island), known as “MacLeod’s Ledge.”

Figure 1: Illustration of the boundary of the MacLeod’s Ledge included in LFA 24

Regulatory and non-regulatory options considered

Currently, non-regulatory options (i.e. variation orders and amended licence conditions) are implemented to permit Prince Edward Island fishermen to access LFA 22. The only impact on the Government is the administrative costs of issuing permits with licence conditions amended from year to year. Other non-regulatory options, such as information and education, standards, and other forms of voluntary compliance are not considered due to the history of contest over the ownership of MacLeod’s Ledge leading to the need of an independent report. This report recommended a regulatory amendment to redefine the boundaries of each LFA.

Without a permanent regulatory amendment, DFO is required to consult with fishers from the Magdalen Islands and Prince Edward Island, from time to time, on this issue. In addition, a variation order would be required in LFA 22 every year to vary the lobster length requirements to match that of LFA 24, and licence conditions would be issued annually to both LFA 22 and LFA 24 harvesters to redefine the access to the lobster fishing areas. This would ensure that fishers from Prince Edward Island would be granted access to the MacLeod’s Ledge area, and would allow Prince Edward Island harvesters to bring the harvested lobsters from LFA 22 back into LFA 24.

The regulatory option settles the boundary in a clear manner. The fishing permits reflect the current practice without the need of adjusting the LFA 24 licence conditions every year.

Benefits and costs

The amendment represents the status quo as no LFA 22 licence holders currently fish in this area. The benefits to government are minor and completely administrative in nature.

Government

Administrative procedures are presently required to issue, publish and broadcast modified licence conditions. There are approximately 100 licences to amend annually, and according to DFO Licensing Branch, this workload represents 6–10 hours overtime per year. The amendment does not generate any new costs for enforcement as officers from Prince Edward Island have already been enforcing the MacLeod’s Ledge area due to the amended licence conditions of LFA 24 fishers.

Stakeholders

(1) LFA 24 commercial fish harvesters and aboriginal fish harvesters

There are approximately 600 lobster licence holders in LFA 24. Macleod’s Ledge, which is 9.7 km from North Point, Prince Edward Island, has been traditionally used by fish harvesters from Prince Edward Island (mainly from Tignish Run and Seacow Pond) who make a living from fishing lobsters in this area.

LFA 24 fish harvesters who wish to have access to MacLeod’s Ledge in LFA 22 have needed to contact the DFO Area Licensing Service Center at Charlottetown, Prince Edward Island, in order to receive appropriate licence conditions. Annually, approximately 100 LFA 24 fish harvesters have asked for the licence condition giving access to MacLeod’s Ledge.

Given that LFA 22 fishers do not currently harvest in the MacLeod’s Ledge area, all net benefits are accrued by Prince Edward Island fishers and their local communities. Previous harvesting data (see footnote 2) has shown that fishers who have access to the MacLeod’s Ledge (according to their licence conditions) over the last five years have harvested lobster and rock crab landings averaging over 1 100 MT per year, with a value of over $9.5M per year. When these figures are compared to the total landings for LFA 24 in a given year, which can average around $60.3M, (see footnote 3) the landings harvested in MacLeod’s Ledge account for almost 15% of that total.

From the harvesting data, only one First Nation (from Lennox Island) from LFA 24 requested access to MacLeod’s Ledge. A volume of 152 MT of lobster (and 71 MT of rock crab) was landed for a value of $1.8M (a value of $39,300 for rock crab).

The amendments positively affect the lobster fishermen of Prince Edward Island who are able to continue to fish the new section of LFA 24 without the need for variation orders and amended licence conditions on an annual basis. This is not a change in practice but in regulations only.

(2) LFA 22 commercial and aboriginal fish harvesters

There are approximately 325 lobster licence holders in LFA 22. MacLeod’s Ledge has no economic impact on individual fish harvesters from LFA 22 as no LFA 22 commercial or aboriginal fish harvesters have ever fished in the MacLeod’s Ledge area due to the geographical distance (Macleod’s Ledge lies approximately 166 km from Havres-Aubert on the Magdalen Islands). There is no evidence to suggest that fishers from the Magdalen Islands have ever fished at MacLeod’s Ledge for lobster and they have acknowledged this fact.

The Association des pêcheurs professionnels des Îles-de-la-Madeleine mentioned that it would be feasible for Magdalen Island fish harvesters to fish this zone using high-speed fishing boats or via larger “offshore” boats used as a base for smaller fishing boat. However, at the present time, there is no indication that it could ever be cost effective for fishers from the Magdalen Island to travel 166 km to access this zone.

Rationale

Prince Edward Island fishers have indicated that their forefathers have fished the MacLeod’s Ledge area since the early 1900s, and only fishers from LFA 24, primarily from Seacow Pond and Tignish ports, have ever fished this area. In addition, the APPIM has acknowledged that the Magdalen Island fishers have never fished MacLeod’s Ledge.

In 1985, for the first time, the AFRs clearly defined boundary lines in terms of latitude and longitude between adjacent LFAs. Before 1985, the description of the districts was limited to the use of terms such as “on and along (that portion of) the coast or waters thereof.” At some point in the adaptation of the LFA measurement system, MacLeod’s Ledge, one of Prince Edward Island’s traditional and historic fishing grounds, became a part of LFA 22. No consultations with affected fishers ever took place regarding the creation of the boundary line of the now disputed area.

The first description of the line that now separates LFA 24 from LFA 22, was described in the 1963 Regulations:

South of a straight line drawn from a point in the Gulf of St. Lawrence five nautical miles bearing 315° true from the said point at High Capes, Inverness County, Nova Scotia to a point five nautical miles north magnetic from North Point Lighthouse, Prince County, Prince Edward Island (the said point being in Latitude 47°08′25″ North, Longitude 64°02′10″ West).

The line, drawn between a point five miles north of Cape North, Prince Edward Island (point 19 in the current Regulations) and a point five miles northwest of High Capes, Nova Scotia, originally set the northern boundary of district 7B. District 7B was split into several LFAs in the 1985 Regulations, including LFA 24 which kept the original district 7B northern boundary.

Until the adoption of the current AFRs in 1985, district 9 was the area that included the “coast or the waters thereof” of the Magdalen Islands (including Bird Rocks and Brion Island). LFA 22, which replaced district 9, now includes, because of the way the boundary was defined, the contested area north of Prince Edward Island. Although it appears that this area was not explicitly designated a part of any district before 1985, it could be argued that it was really part of district 7B because of proximity.

The economic analysis exposes that amending the boundary between LFAs 22 and 24 has minimal risk to the stakeholders, yet accords maximum benefit to traditional fishers. Access to this portion of the Ledge has an impact on individual fishers from Prince Edward Island who make a living from fishing lobsters in this area. This area has no economic impact on individual fishers from LFA 22 (Magdalen Islands) since no LFA 22 fishers fish, or have ever fished, in this area.

According to DFO biologists, juvenile and adult lobsters do not travel between Prince Edward Island and the Magdalen Islands. MacLeod’s Ledge is far enough from the Magdalen Islands that fishing activities have no “measurable impact” on the lobster population of LFA 22 currently harvested by fishermen from the Magdalen Islands.

The amendments alleviate the administrative tasks related to the management of this fishery. The analysis performed by the independent reviewer determined that the historical attachment to the fishery belongs to Prince Edward Island harvesters and reinforced the lack of fishing in the area by harvesters from the Magdalen Islands. These amendments give the greatest overall benefits to fishermen in the region, by providing the basis for a sustainable and orderly lobster fishery, and allow them to plan their fishing activities on a long-term basis. Currently, the sector is managed for one area but is harvested by fishers from another area. These amendments adjust the management between the resource and actual users, and make the AFR consistent with current practices.

Consultation

In March 2006, the Minister appointed Allister Surette as a mediator to undertake an independent review of the issues surrounding fishing access on MacLeod’s Ledge and to make recommendations for a long-term approach. The decision was based on the traditional criteria for granting fishing access — adjacency, historic dependence and economic viability — generally accepted in Atlantic Canada and in accordance with the Atlantic Fisheries Policy.

After consultations with the Association des pêcheurs professionnels des Îles-de-la-Madeleine, the Prince Edward Island Fisherman’s Association, the Western Gulf Fishermen’s Association, the federal and provincial governments, and the members of the general public, Allister Surette determined that fishing areas for PEI harvesters to MacLeod’s Ledge met all three criteria. He recommended to alter the boundary line of LFA 22 and LFA 24 on the western end of these LFAs so as to include the MacLeod’s Ledge in LFA 24.

The Minister of DFO at the time had accepted the recommendation of the independent review in 2006, and felt the best option was to proceed with an amendment to the Atlantic Fishery Regulations, 1985.

Subsequently, the current minister of DFO took steps to ensure the amendment proceeded, and informed her provincial counterparts, in both Quebec and Prince Edward Island, of DFO’s plan to move ahead with the amendments.

Pre-publication in the Canada Gazette, Part I

The Regulations were pre-published in the Canada Gazette, Part I, on August 14, 2010, for a 30-day comment period. Two written submisisons were received. The first was from the Government of Prince Edward Island. The Minister of Fisheries, Aquaculture and Rural Development wrote to express his support for the regulatory amendment, and was pleased that the fishing activities in the MacLeod’s Ledge area would be continued, as it is a vital economic activity for the LFA 24 lobster harvesters. The second written submission was from the Province of Quebec, raising concerns over the regulatory amendment. The Assistant Deputy Minister of the Ministère de l’Agriculture, des Pêcheries et de l’Alimentation du Québec (MAPAQ), wrote to express her opposition of the amendment, and noted that the regulatory change was desirable for Prince Edward Island; however, it gave no financial compensation or mile for mile territory exchange to Quebec.

No other written submission or correspondence was received from any other organization.

Although DFO is aware of the opinions of both provincial parties, DFO’s position remains the same, and the amendments to the MacLeod’s Ledge boundary areas have proceeded to final publication.

Implementation, enforcement and service standards

The amendment does not generate any major new costs in terms of enforcement. Surveillance operations are going to be carried out by fishery officers using patrol vessels and by air. The area is a relatively small area and does not significantly increase the work of fishery officers who are already monitoring the area. No additional enforcement resources are required to implement the amendment.

The amendment results in a reduction of administrative costs and resources which are presently required to amend licence conditions and issue and publish and/or broadcast the necessary variation orders.

Contacts

Jennifer Buie
Fisheries Resource Management Officer
Fisheries and Oceans Canada
200 Kent Street
Address Locator: 13S018
Ottawa, Ontario
K1A 0E6

Samia Hirani
Legislative and Regulatory Analyst
Legislative and Regulatory Affairs
Fisheries and Oceans Canada
200 Kent Street
Address Locator: 14E241
Ottawa, Ontario
K1A 0E6
Email: Samia.Hirani@dfo-mpo.gc.ca

Footnote a
S.C. 1991, c. 1, s. 12

Footnote b
R.S., c. F-14

Footnote 1
SOR/86-21

Footnote 2
As the licence conditions authorize fishing for lobster (and rock crab) in the waters of LFA 24 and in a portion of LFA 22, these landings could stem from lobster and rock crab catches in LFA 24 and/or MacLeod’s Ledge. We do not have the information on which part of the lobster (and rock crab) landings results from catches in MacLeod’s Ledge specifically.

Footnote 3
In LFA 24, the total lobster landings for 2008 were 6 251 MT for a value of $60.3M, while rock crab landings were 160 MT for a value of $0.14M.