A guide to the Pacific Region licence appeal process

Terms of reference
Atlantic fisheries and Pacific Region licence appeal boards

1. Purpose

In accordance with section 4.01 of the Fisheries Act, the Minister of Fisheries and Oceans (Minister) may, in order to carry out the purpose of the Fisheries Act, establish advisory panels, and provide for their membership, function and operation.

The Minister established the Pacific Region Licence Appeal Board (PRLAB) in 1979, and the Atlantic Fisheries Licence Appeal Board (AFLAB) in 1986. Both boards are independent, and provide recommendations for the last administrative levels of appeal for commercial fish harvesters who are dissatisfied with a departmental licensing decision.

The boards may also serve in an advisory capacity for the review of any other licensing issues the Minister may wish to have reviewed.

These Terms of Reference are intended to provide guidance to board members, Board Liaison Officers, Departmental Representatives, and appellants on issues that include, but are not limited to, the mandate and composition of the boards, responsibilities of the board members and of Fisheries and Oceans Canada, timelines for appeals, and hearing procedures.

2. Mandate

The mandate of the boards is two-fold:

i. Appeals

PRLAB will review commercial licensing and communal/commercial licencing decisions made by the Pacific Fishery Licence Unit.

AFLAB will review licensing decisions related specifically to Atlantic inshore and coastal licences made by a Regional Director General as part of the Regional Licensing Appeal Committee (RLAC) process that occurs in Eastern Canada.

The boards will review departmental licensing decisions that relate to an alleged incorrect application of licensing policies, extenuating circumstances or a change in policy. Based on all the information provided, the boards will:

• Determine if the appellant was treated fairly in accordance with Fisheries and Oceans Canada licensing policies, practices and procedures; and
• Determine if extenuating circumstances exist for deviation from established policies, practices and procedures.

The boards will then make written recommendations to the Minister by providing a full rationale as to whether:

• The appellant was treated fairly and appropriately in accordance with the Department’s licensing policies, practices and procedures; and
• Extenuating circumstances exist for deviation from established policies, practices, or procedures.

For appeals related to substitute operators, the written recommendations will be sent to the Deputy Minister.

A request to review a licensing decision may be refused if:

• The appeal is determined to be based on unwarranted grounds; or
• The appellant failed to appear before the board on a scheduled hearing date without an acceptable justification.

The boards will not review licensing decisions where:

• i. An appeal is related to the legitimacy or appropriateness of licensing policy and criteria;
• ii. A previous recommendation has been made by AFLAB or PRLAB and no new information has been presented by the appellant;
• iii. Decisions are related to aquaculture; or
• iv. Decisions are related to broader questions on access and allocation of fishery resources.

ii. Advisory capacity

The boards can also review any other individual licensing issues that the Minister has referred to them. Those issues can include, but are not limited to, changes to licensing practices and procedures, assisting in the selection of new licence holders, or advising on any licensing decision that the Minister may wish to have reviewed.

The boards may make recommendations to the Minister on changes to licensing practices and procedures.

The boards will provide to the Minister a written assessment of the issues reviewed, as well as a written rationale supporting the board’s recommendation.

iii. Meeting format

Hearings are conducted informally, with a strong preference for all board meetings to occur using a virtual format, though in-person meetings may be considered. Appellants may be represented by a representative of their choosing at an appeal hearing, and may request that the board make recommendations to the Minister based on written submissions only.

Appellants have the right to be heard and to be served in the official language of their choice.

3. Definitions

Advisory Process: refers to the process by which the board advises the Minister on a particular issue.

Appeal: refers to the process by which an appellant makes a request for the review of a licensing decision.

Appellant: refers to a person who is seeking the review of a departmental licensing decision through the established appeal review process.

Board(s): refers to the Pacific Region Licence Appeal Board (PRLAB) and/or the Atlantic Fisheries Licence Appeal Board (AFLAB), as the case may be.

Board Liaison Officer: for the Pacific Region, refers to a Fisheries and Oceans Canada staff member responsible for oversight of the PRLAB. For the Atlantic Regions, refers to the regional Fisheries and Oceans Canada staff member responsible for oversight of their region’s AFLAB board.

Board Member: refers to an individual selected by the Minister in accordance with the established process to sit on a board.

Chairperson: refers to a board member selected by the Minister to preside over the board.

Departmental Representative: refers to the Fisheries and Oceans Canada staff who represent the interests of Fisheries and Oceans Canada at an appeal process.

Licence Holder: In Quebec and Atlantic regions, the person in whose name a fishing licence is issued, authorizing that individual to fish the species specified in the licence. In Pacific region, a licence holder can refer to party-based licence eligibility holders, or vessel owners for vessel-based licence eligibilities.

Minister: refers to the Minister of Fisheries and Oceans.

Record of Discussion: refers to a document explaining the board’s discussions with respect to the recommendations or advice that will be provided to the Minister regarding a specific appeal or advisory process brought before the board.

4. Composition of the boards

PRLAB consists of one board for Pacific Region. AFLAB consists of four regional boards, one for each of the Fisheries and Oceans Canada Regions in Eastern Canada: Gulf, Maritimes, Quebec, and Newfoundland and Labrador.

A minimum of three (3) board members (including a Chairperson) is required to make quorum each time a board hears an appeal or advises the Minister on an issue.

For each appeal, the board will be selected based on the availability of the board members. Ideally, the appeal should be heard by board members from the Fisheries and Oceans Canada Region where the licensing decision was made. However, in order to meet quorum requirements, language preferences, and/or operational needs, board members from other regions may, on occasion, be asked to participate outside their own Region. In such instances, and whenever possible, at least one member of the board will be from the Region where the licensing decision was made.

The same approach shall be used for each advisory process, with at least one member of the board coming from the Region where the policy question or issue under consideration arises.

Advisory processes will be held as required, when issues are referred to the board by the Minister or initiated by the board.

Fisheries and Oceans Canada may hold meetings with all PRLAB and/or AFLAB members present to address, among others, matters related to training, administrative and/or operational issues relating to the mandate of the board, or issues relating to licensing policy, process and/or procedures.

5. Tenure of board members

Board members are appointed by the Minister for their knowledge of the fishing industry and/or their ability to provide fair and reasonable consideration to appeals and/or advisory processes. They are appointed for a term not exceeding three (3) years, and may be eligible for re-appointment. Potential new candidates are screened through a formal departmental selection process in accordance with the principles communicated by the Privy Council Office. Diversity will be a consideration in all applicable stages of the nomination and appointment process.

To serve as a board member, the individual must:

• Be retired from any active participation in the fishing industry, including but not limited to participation as a licence holder, crew member, buyer, or processor;
• Disclose any financial interests they may have in the fishing industry;
• Be available to attend approximately four (4) scheduled hearings in a given year as well as participate in advisory processes and in any additional meetings that may be required; and
• Adhere to these Terms of Reference and the Conflict of Interest Guidelines attached here as Annex A.

Past experience in the fishing industry is an asset but not a requirement.

Upon accepting an appointment, each board member shall complete and return, along with their acceptance letter, a signed form stating their understanding of, and commitment to adhere to, these Terms of Reference and the Conflict of Interest Guidelines attached as Annex A.

6. Remuneration

Per diems for AFLAB and PRLAB members follow Fisheries and Oceans Canada’s (DFO) policies governing remuneration rates for ministerial appointees. These rates also apply for any required training days.

While the vast majority of board meetings will use a virtual format, when travel is required, board members are encouraged to complete their travel within the same calendar day. Honorarium rates and travel expenses will be authorized in those circumstances where board members are unable to return to their residence by 7:00 p.m. local time following the conclusion of board meetings.

7. Roles and responsibilities of the board members

Chairperson

Each board meeting will be presided over by a Chairperson. The Chairperson will be selected by the Minister and will be responsible for:

• Reviewing and sharing all documentation with the board prior to each process;
• Ensuring that the appellant is advised of the procedures of the appeal process and the role of the board;
• Presiding over and directing all proceedings;
• Ensuring that both the appellant and the Departmental Representative are given ample opportunity to present information;
• Directing the board’s questioning of the appellant and of the Departmental Representative;
• Requesting additional information and/or reviewing the information presented by the appellant and the Departmental Representative;
• Leading all board meetings;
• Conducting board deliberations and ensuring that the recommendations to the Minister are consistent with the board’s mandate and reflect the information as presented by all parties;
• Ensuring that a Record of Discussion with recommendations is produced for all appeals and advisory processes;
• Ensuring any recommendations include a rationale based on an assessment of fair treatment and/or extenuating circumstances;
• Advising the Board Liaison Officer of any issues, concerns and recommendations related to any changes to licensing practices and procedures the board intends to raise with the Minister as a result of its deliberations;
• Preparing and signing, within fifteen (15) calendar days from the conclusion of the process, the final report on the departmental template including a detailed rationale of the board’s recommendations and signature of all board members who participated;
• Submitting the final report to the Minister by forwarding the report to the Board Liaison Officer;
• Submitting the final report to the Minister by forwarding the report to the Board Liaison Officer in hard copy and electronic copy on memory stick, either in person or via registered mail;
• Ensuring that complete confidentiality is maintained; and
• Responding to any clarifications or information requested by the Minister.

Board members

For each process, board members will be responsible for:

• Reviewing beforehand the information presented by the appellant and the Departmental Representative;
• Participating in all steps of each process; and
• Ensuring that complete confidentiality of each process is maintained.

8. Roles and responsibilities of Fisheries and Oceans Canada

Board liaison officer

The Board Liaison Officer will be responsible for:

• Coordinating the logistics of the processes;
• Contacting appellants and board members to ascertain availability, confirm any representative designated by the appellant, and scheduling attendance for the appeal;
• Ensuring that quorum is met;
• Preparing and distributing all appeal or advisory process documentation to the board members, and to the appellant (including their representative if known) as the case may be;
• Ensuring that the appellant is advised of the procedures of the appeal process and the role of the board;
• Providing to the board any requested clarifying information pertaining to the particularities of an appeal or for an advisory process;
• Ensuring that all clarifying information provided to the board regarding a specific appeal is also shared with the appellant;
• Overseeing production of Records of Discussion including recommendations for all board meetings and processes;
• Receiving the board’s report and recommendations, coordinating analysis and preparation of memorandum for decision to the Minister or Deputy Minister; and,
• As required, coordinating post-appeal communication, contacting Domestic Fisheries Policy (DFP) officials for review and approval of requests from and/or information sharing with the board, forwarding the memorandum for decision to DFP for approval.

A Board Liaison Officer may attend, but will not participate in, deliberations of the board nor provide a vote in appeals, advisory processes or any related meetings. A Board Liaison Officer’s role is limited to providing administrative support to the board members.

Departmental representative

For each process, the departmental representative will be responsible for:

• Representing the interests of Fisheries and Oceans Canada to the board during an appeal;
• Providing the board with departmental policies and informing the board about processes and/or procedures;
• Presenting the case on behalf of Fisheries and Oceans Canada to the board during an appeal; and
• Presenting Fisheries and Oceans Canada’s current departmental position and context to the board on a question submitted by the Minister during an advisory process, as required.

In Pacific Region, the Board Liaison Officer fulfills the role of Departmental Representative.

9. Appeal process

Timelines for requesting an appeal

A written request for an appeal must be made within three (3) years of a departmental licensing decision, or of a change in department policy that impacted a licence decision.

In the Atlantic regions, appellants have three (3) years to appeal to RLAC and then ninety (90) days from the date the decision of the Regional Director General (RDG) in the RLAC process was provided to them to submit a written request to the Board Liaison Officer for an appeal of that decision to AFLAB.

Appeals

Appellants are informed of the possibility of requesting an appeal at the PRLAB/AFLAB by receipt of a letter that denies issuance of a licence or an exception from a licensing rule or policy.

Appellants who wish to appeal must submit a written request to the Board Liaison Officer within the above-stated timelines. The request can include additional reasons for the appeal, including any alleged extenuating circumstances and other additional relevant information.

The Board Liaison Officer will schedule the appeal hearing and notify the appellant of the date, time and location of the hearing, once the appellant’s submission is received.

Preparing for the appeal hearing:

Appellants can obtain assistance in preparing for the appeal hearing from the Board Liaison Officer, who can provide the appellant with any necessary information regarding the appeal process.

All relevant information or documents the appellant wants the board to consider should be provided to the Board Liaison Officer a minimum of ten (10) days prior to the appeal hearing date.

Appellants should bring a copy of their submission and documentation to the appeal hearing, which can include any pictures relevant to the appeal.

Appeal hearing procedures:

The Chairperson may structure appeal hearings as they deem suitable. The following is a suggested format:

• Introductions of participants, led by the Board Liaison Officer and/or the Chairperson, as the case may be;
• Description of Hearing Process, provided by Board Liaison Officer and/or Chairperson;
• Representations by the Departmental Representative, followed by questions from board members, if applicable;
• Representations by the appellant and his/her representative(s), followed by questions from board members, if applicable; and
• Closing comments by the Chairperson.

Materials presented both in writing and orally at the appeal hearing are considered part of the appeal record.

After the appellant, their representative, and the Departmental Representative have left, the board will deliberate and formulate its recommendations to the Minister or Deputy Minister based on a majority. The nature and conclusion of these deliberations are to remain strictly confidential, subject to application of privacy laws.

Appellants may be required to submit a statutory declaration under the Fishery (General) Regulations, ss. 8(1)(b), to verify that the information and documentation provided is complete, accurate and true.

If an appellant provides falsified documents, or there is evidence of non-compliance with the Fisheries Act and its regulations, the board is required to provide this information to Fisheries and Oceans Canada or any other investigative body responsible for enforcing the laws of Canada or of a province.

An appeal may be withdrawn at any time by notifying Fisheries and Oceans Canada in writing.

Additional information received after formulation of the board’s report

Additional information can be considered after the board has formulated its report if the information is received by Fisheries and Oceans Canada prior to the Minister’s decision. The additional information can be provided by the appellant, or could originate from other sources including from within Fisheries and Oceans Canada. Any new information should be provided to the Board Liaison Officer. Fisheries and Oceans Canada will determine if the information should be forwarded to the Minister. If the information is considered relevant and was not provided by the appellant, the appellant will be given the opportunity to comment on the new information.

Appeal decisions

Appellants will be advised in writing of the Minister’s decision. Under s. 7 of the Fisheries Act, the Minister has absolute discretion in the issuance of licences. The Minister’s decision represents the end of the appeal process.

Annex A

Conflict of interest guidelines

It is the responsibility of each board member to read these Conflict of Interest Guidelines (Guidelines) and to ensure that they comply with all its provisions. Board members will be required to sign a declaration to that effect that will be enclosed with their offer of appointment from the Minister.

Upon appointment to a board and throughout their tenure as board members and thereafter, every board member shall conform to the following principles:

1. Board members shall perform their official duties and arrange their private affairs in such a manner that public confidence and trust in the integrity, objectivity and impartiality of government are conserved and enhanced;
2. Board members shall act in a manner that will bear the closest public scrutiny;
3. Board members shall not have private interests, other than those permitted pursuant to the Guidelines that would be affected particularly or significantly by government actions in which they participate;
4. Upon appointment, and thereafter, board members shall arrange their private affairs in a manner that will prevent real, potential or apparent conflicts of interest from arising but if such a conflict does arise between the private interests of a board member and the official duties and responsibilities of that board member, the conflict shall be resolved in favour of the public interest;
5. Board members shall not step out of their official roles to assist private entities or persons in their dealings with the government where this would result in preferential treatment to any person;
6. Board members shall not knowingly take advantage of, or benefit from, any information that is obtained in the course of their official duties and responsibilities that is not generally available to the public, either during or after their tenure;
7. Board members shall disclose to the Board Liaison Officer any commercial, financial or personal interest or relationship (direct or indirect) which might be perceived as being in actual or potential conflict with their official duties as members of the board, either generally, or in relationship to a particular appeal or advisory process. This includes issues relating to fisheries in which they have a vested interest;
8. Board members shall disclose to the Board Liaison Officer any involvement they have had with a particular case at any time during an earlier stage prior to the appeal or advisory process, or at any time during the appeal or the advisory process, including their participation in representations to the department, or representations by the appellants personally to the board member, as the case may be;
9. Board members shall disclose to the Board Liaison Officer any previous public statements they may have made respecting a particular case under appeal or an appellant or his/her representative(s) involved in the appeal process, or in an advisory process;
10. Board members who have made a disclosure under g) through i) shall not participate in any way in an appeal or advisory process related to their disclosure without the consent of the Chairperson and the Board Liaison Officer;
11. Board members who are of the opinion that another board member may be in a conflict of interest position should address the issue directly with the board member, the Chairperson and the Board Liaison Officer. The Chairperson and Board Liaison Officer will decide whether a conflict exists such that (j) will not apply; and,
12. Board members must ensure and maintain the complete confidentiality of the appeal or advisory process, as well as of any confidential information that is disclosed during these processes. Confidential information includes all information about license appeals and the appellant, advisory processes, board discussions, deliberations, decisions, and recommendations.