THE FISHERMAN, DECEMBER 16, 1996
'Department managed process to see that this result occurred.'
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to see that this result occurred."
DFO also appointed Bruce Turris, a proponent of ITQs, to facilitate the consultation with the industry and the halibut advisory committee over ITQs. Then a economist in the department's program and planning branch, Turris has since been promoted to groundfish co-ordinator and is currently overseeing the move toward quotas in the groundfish trawl fishery.
Judge Campbell noted that Turris was the point man in getting industry support for ITQs, but he emphasized that the decision to establish ITQs and the implementation of that decision was carried out with the full support of DFO and the fisheries minister.
One important step towards ITQs in the halibut fishery involved a crucial meeting on May 3,1990 when the decision was made to introduce the "current owner requirement" as part of the ITQ system. Quota shares were to be based
that the purpose of COR was to discriminate against some licence holders in order to benefit, and thus gain the support of, those who hold the self-interest reflected by Mike Bazilli."
The federal court judge chastised DFO for making a decision on COR that was "without regard for the public interest." Accordingly, "the minister's decision in 1990 to implement the current owner restriction is unlawful" and
30 per cent on
the vessel length and 70 per cent on catch history. Licence holders were allowed to choose the best production from one of the previous four years, 1986 to 1989.
But under COR, if they had purchased the vessel within the last two or three years, they had fewer years from which to choose. Only if they bought after the fishing season in 1989, would the previous owner's production be considered. Under the rule, some 44 fishermen faced a cut in quota allocation, while many other established licence holders benefited, including halibut advisory committee member Mike Bazilli, the man who proposed the current owner requirement at the May 3 meeting.
And it was to win the support of those established licence holders that Turris supported COR in the meeting, Judge Campbell ruled."I find COR was adopted because Bruce Turris concluded that to get HAC support for the quota system, it was necessary to support Mike Bazilli and his ideas. On the whole of the evidence, I am satisfied on a balance of probabilities
What the judge said ...
Excerpts from Judge Douglas Campbells reasons for judgment: "There is nothing wrong with the DFO adopting a strategy to get what it wanted, but the often repeated statements that interest in a quota system was initiated by the licence holders and DFO did not want to force the issue, must be seen as a promotional strategy move."
"I find that DFO wanted a quota system to result from the process and managed the process to see that this result occurred."
"...even though it had been billed as a consultation, I find that the process entered into between DFO and the licence holders was, in fact, a support-building process for a quota system to which DFO was committed even before the process began."
"...opinions reached by HAC were the result of highly managed, and from DFO's point of view, very successful support-building process for an outcome that DFO wanted."
^'As the DFO official responsible to see the quota system put into effect, he (Bruce Turris) put it into effect..The results were highly managed by Bruce Tunis...."
"I would expect Bruce Turris to have shunned any suggestion that would benefit some licence holders to die detriment of others, particularly when the benefits derived would be based in pure self-interest, or greed to uncut the language. He did not do this but rather turned from facilitator of the ideas of licence holders to an advocate for a certain group who would personally benefit by the COR decision reached."
"I find that the paramount public interest in this case to be enforced is the principle that public officials must be scrupulously fair and equal in their decision-making. Against this standard, unfortunately, the decision to implement COR was very unprincipled. ..the decision was made without regard to the public interest."
the decision is "a nullity," he ruled.
Barring any appeal of the decision—DFO has until Dec. 14 to decide on an appeal—halibut quota will now have to be re-allocated among all holders based on the 3 0/70 rule alone. Judge Campbell also ruled that additional trial proceedings will be held to determine how to compensate quota holders for past discrimination.
Smith said he will be proposing a payback to those who were cut out by COR over the next six years by reducing the quota for everybody else. "They've had the benefit of the additional quota over the last six years, so it's only logical they take a cut for the next six," he said.
At the same time, many fishermen also want to see the judgment's effect go well beyond the next six years and well beyond the halibut fishery. "We've got a real demonstration here of just how DFO operates and what we have to be on guard against," said halibut advisory board member Lome Iverson. "When we go into these consultations, they're not
asking us what we want—they're facilitating us to reach the decision they want. But they want it to appear that we came up with the decision they want."
Bob Carpenter, one of those who launched the suit against DFO six years ago, said it was "refreshing" to see the judgment and he hoped DFO would get the message.
"It's a sad day when we're forced to go through the courts at a high cost to get something that should have been resolved six years ago," he said. He added that the federal government "won't have to worry about getting any tax money on my retirement savings—I used them all up fighting this thing."
Carpenter said he agreed with the judge who stated in his ruling that DFO had not bothered to listen to those who objected to COR. "They only listen to people to people who agree with what they want — they don't listen to those who don't agree with them.
"I hope this judgment will make them start listening," he said.
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