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Fishermen Brace For Legal Fight To Hit Privy Council

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Fishermen in favour of the Fisheries Act’s bar on foreign workers yesterday said they were bracing for legal challenges to the reforms to go all the way to the London-based Privy Council.

Paul Maillis, the National Fisheries Association (NFA) director, told Tribune Business that the group’s members will “live with whatever the courts decide” as he predicted that those opposed to the ban - which took effect yesterday - will be sufficiently determined to eventually reach out to the highest court in the Bahamian judicial system.

“It’s what was expected,” he said of Justice Indra Charles’ refusal to grant an injunction preventing implementation of the contested sections in the Fisheries Act. “We in the fishing community always had the understanding this could go as far as the Privy Council, but that depends on the determination of these guys. 

“It seems they have that type of determination, and if they do we have to live with what the courts decide. Ever since we became privy to this decision, the fishing community has been very excited. Some have a misunderstanding about the finality of this decision, but we’re glad for now that we have some respite from efforts to stop the Act coming into effect.”

Mr Maillis said the Association and its members were focused on efforts to develop the regulations that will accompany the Act, and which are being led by the Department of Marine Resources in conjunction with the National Fisheries Stakeholder Forum.

“We’ve seen initial drafts, and there are things that the fishing community has to meet and discuss,” he added. “Nothing is final. It’s a process where the public and fisheries community have to be consulted before anything takes effect. There are proposals regarding the size of fish caught, seasons, and also a confirmation of a ban on the export of conch.”

“There are a lot of competing items, and it’s a very long and arduous process. We have a lot of issues we expect to be tweaked in the coming years. The Act brings protection to certain species, and more access to certain species, so these are exciting times.”

The National Fisheries Association has previously fully endorsed a Fisheries Act that “represents the will of the majority of law-abiding Bahamian fishermen”, and “puts Bahamians first as the stewards and managers of the fisheries sector”. However, Tribune Business previously revealed how the Act, and its bar on foreign fishermen working on Bahamian-owned vessels, has caused a split in the industry.

The Coalition For Responsible Fishing (CFRF), a group representing major fisheries wholesalers, processors and exporters, some of whom are involved in the legal challenge to the Act, earlier warned that up to $8m would be lost, and some 1,000 persons hurt, if the reforms went through.

It argued that preventing foreigners working on locally-owned boats “in any capacity” would result in “the unemployment of hundreds of Bahamians” at a time when the country could least afford it. The group’s October 25, 2020, position paper warned that more fisheries businesses will fail without “significant amounts of experienced skilled labour” that are presently not available in The Bahamas.

Arguing that trained potters and divers, in particular, were in short supply, the Coalition warned that the ban on expatriate labour proposed under the Fisheries Bill 2020 was counter-productive and could result in the loss of millions of dollars of export-driven foreign currency earnings just when The Bahamas needed every cent it could get following COVID-19’s devastation.

But Justice Charles, in her ruling on Monday, said granting the group’s request for an injunction to halt the Act’s enforcement would “cripple” Parliament and the government’s ability to make and pass laws for “the ‘peace, order and good government of the country’”.

Her verdict gave the go-ahead for yesterday’s implementation of an Act that bars foreigners from working in the Bahamian fisheries sector. However, Justice Charles said the way remains clear for the exporters, boat owners and others behind the action to challenge the new law on constitutional grounds now it has been enforced.

Geneva Brass Seafood, Paradise Fisheries, Fish Farmers and Audley’s Seafood had teamed with boat-owning corporate entities and two Dominican fishermen working legally in this nation, together with their Bahamian wives, to challenge the Fisheries Act and accompanying Immigration reforms on the basis that they are unconstitutional and discriminatory.

While Paradise Fisheries subsequently appears to have been removed as a plaintiff, the remaining members of the alliance and their attorney, Alfred Sears QC, the former attorney general, had sought a “permanent injunction” from the Supreme court to prevent the government from implementing provisions in the new Acts that they deem offensive.

Their case, in particular, focused on sections 31 and 32 of the Fisheries Act, which bar foreign fishermen - even those in The Bahamas legally with work and spousal permits, or permanent residency - from working on Bahamian-owned fishing vessels.

However, Justice Charles ruled that Mr Sears and his clients had failed to show the matter was sufficiently “exceptional or unusual” to warrant the court’s intervention - and interference with Parliament’s legislative functions - at this early stage of the case.

“The law is clear that the court should, as far as possible, avoid interfering with the pre-enactment legislative process for to do so would be tantamount to meddling in the affairs of the Parliament. Undoubtedly, such challenges would not only open the floodgates for a litany of unmeritorious actions but, more importantly, they would cripple the executive from passing laws for the ‘peace, order and good government of the country’,” Justice Charles wrote.

“The court does not have jurisdiction to prevent Parliament from making and passing legislation since it is within their purview to do so. The court, as the guardian of the constitution, is charged with the responsibility to interpret and apply enacted laws. Except for that function, the duty of the courts is to administer Acts of Parliaments, not to question them. Our democracy is predicated upon the doctrine of separation of powers.”

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