Question Period Note: Judicial Review of the Re-Issuance of Clearwater’s Licences to a Coalition of Atlantic Mi’kmaq First Nations

• I have received the Federal Court’s decision regarding the Minister’s 2021 decision to approve the reissuance of commercial fishing licences that included waters adjacent to Nunavut.
• The licences reissued were from Clearwater Seafoods to First Nation Coalition Quota Limited Partnership, which is owned by a coalition of Mi’kmaq First Nations.
• The judicial review was launched by the Nunavut Tunngavik Incorporated and the Qikiqtani Inuit Association.
• Fisheries and Oceans Canada will always respect Court findings, take the time to review decisions rendered, and determine the impact they may have on the Department’s programs and policies.
• My Department is still assessing the Court decision and will determine in the near future the course of action that will be taken in this case.
• Fisheries and Oceans Canada remains committed to working with Inuit organizations and the Government of Nunavut to advance Inuit and Nunavut’s interests.  

• On November 9, 2020, Clearwater announced the sale of the company to seven Atlantic Mi’kmaq First Nations and Premium Brands Holdings Corporation, with each owning 50 per cent of Clearwater. The sale was completed on January 25, 2021, after additional independent reviews by the Competition Bureau of Canada as well as the Nova Scotia courts.
• On January 26, 2021, a formal request was sent to Fisheries and Oceans Canada (DFO) by Clearwater to reissue Clearwater’s midshore and offshore Canadian fishing licences in the name of the new owners, the Mi’kmaq coalition. The Mi’kmaq coalition formed the First Nations Coalition Quota Limited Partnership (FNC Quota) for the purpose of holding the acquired licences.
• The Clearwater sale was the result of a willing buyer/willing seller transaction, representing, as expressed by Chief Terry Paul, “the single largest investment in the seafood industry by any Indigenous group in Canada.”
• The Mi’kmaq First Nations have borrowed from the First Nations Finance Authority (FNFA) in order to finance the purchase of the company. Clearwater and FNC Quota have indicated that the inclusion of all Clearwater licences and associated allocations was a key factor in the deal and fundamental to the ability for FNC Quota to have access to capital through FNFA.
• The Clearwater sale was also seen by Nunavut interests, including the Government of Nunavut as a major opportunity to increase their access to fisheries in waters adjacent to Nunavut. To that effect, Nunavut interests have written to the Minister on several occasions, requesting that Clearwater licences and allocations for fisheries in the north be provided to them. Some licences held by Clearwater have associated quota that is fishable in areas directly outside the Nunavut Settlement Area or partly within Zone I of the Nunavut Agreement.
• As any licence re-issuance request that entails a transfer of commercial fisheries access in Zone I (and Zone II) triggers section 15.3.7 of the Agreement, a detailed review of this matter was conducted by the Department to take into account all relevant considerations, including a special consideration to the principles of adjacency and the economic dependence of Nunavut communities and residents on marine resources, and the views expressed by stakeholders.
• Following a six months in-depth analysis of this re-issuance request against all criteria set out in licensing policy, Integrated Fisheries Management Plans, and the administrative guidelines that govern the affected fisheries, as well as the review of all relevant land claims agreements, the request was approved by the Minister on July 16, 2021, and Clearwater, FNC Quota and Nunavut interests notified in writing on July 30, 2021 of the decision.
• Following the receipt of the notification, the NTI and the QIA have applied for judicial review in the Federal Court seeking an order setting aside the Minister’s July 16, 2021, decision to approve the re-issuance of offshore and midshore licences and associated allocations from Clearwater to FNC Quota.
• The Federal Court hearing for the judicial review took place in Iqaluit October 16 - 18, 2023.
• The decision of the Federal Court was rendered on April 26, 2024. The application for judicial review was granted, and the Minister’s decision was quashed. The Court concluded that the Ministerial decision was unreasonable because the Minister did not meaningfully grapple with the “special considerations” required by the Nunavut Agreement. However, the Court recognized that there was no breach of procedural fairness. As a consequence of this decision, the matter is remitted back to the Minister for redetermination.
• While the Court’s decision is being reviewed, the Department’s current view on the status of the licences is that they remain with FNC Quota for the current fishing season until the annual renewal is required.
 

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