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DFO guilty of 'abuse of process' in charging AFS fishery protesters
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Fisheries Minister David Anderson took another evasive tack in the wake of the recent court decision on the Native-only commercial fishery openings, arguing this time that the pilot sales fisheries were no different from any other fishery openings set specifically for a particular gear group.
In a statement issued Aug. 14 Anderson declared that as Minister of Fisheries and Oceans, "I authorize hundreds of fisheries every year.
"Sometimes this results in exclusive troll fisheries in an area or exclusive seine fisheries in another area or exclusive gillnet fisheries in yet another area," he said. "Sometimes this results in exclusive pilot sales fisheries."
Anderson also announced that the federal government would appeal the Aug. 7 decision by Provincial Court Judge Howard Thomas who threw out the case against 24 fishermen who were charged with fishing during a closed time after they staged a protest fishery during an AFS pilot sales opening June 19.
Anderson's statement and the announcement of the appeal to B.C. Supreme Court came more than a week after Judge Thomas ruled that the federal government was guilty of "abuse of process" for its prosecution of the fisher-
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In his ruling Judge Thomas stated: "I agree with the applicants' submissions that the DFO has dispensed with the law by adopting an enforcement policy which focuses on one group and exempts another group and that the policy violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed.In my view, the court should intervene here to prevent an abuse of process which could bring the administration of justice into disrepute. I therefore enter a judicial stay of proceedings on all of these charges."
Judge Thomas had earlier ruled while hearing similar charges against MP John Cummins in January, that the DFO policy of aboriginal-only commercial openings was illegal. He reaffirmed that decision in his Aug. 7 ruling, noting that DFO "has chosen to disregard the law as stated in R. vs. Cummins."
Although the appeal is expected to impose heavy legal costs, B.C. Fisheries Survival Coalition spokesperson Phil Eidsvik said he welcomed the appeal. "We've
been wanting to get this into a higher court for a long time," he said. Eidsvik was one those charged following the June 19 protest fishery.
DFO had dismissed Judge Thomas's January ruling as "only
'DFO has dispensed with the law by adopting an enforcement policy which focuses on one group and exempts another group
—Judge Howard Thomas
an opinion," a position that could prove embarrassing to the department if Thomas's decision is upheld by the court.
DFO has also maintained that the pilot sales program is not a question of law but "ministerial policy." However, various fisheries ministers have changed course several times in their defence of that policy as successive court rulings have thrown its legality into question
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