Amanda Vaughan
Northern News Services
Published Friday, January 4, 2008

YELLOWKNIFE - The Department of Fisheries and Oceans (DFO) is appealing a court decision ruling that fishing nets are not "fishing gear."

The ruling was made when Yellowknife dog musher Brent Beck was charged with "setting unmarked fishing gear" seized by DFO officers near Burwash Point on Yellowknife Bay. The nets were discovered in September 2006.

Chief Judge Brian Bruser dismissed the charges when he concluded the term "fishing gear" did not include nets, which he said were "fishing apparatus" according to the federal Fisheries Act.

He said a distinction between gear and apparatus is created by the use of the phrase "any fishing gear or apparatus" several times in the act.

"If they have the same meaning, then why go to all this trouble," Bruser said in court during his decision.

Crown lawyer Shelley Tkatch, who prosecuted the case, said the appeal is fighting the ruling's precedent-setting interpretation of the act.

"What this means is fishing nets are not fishing gear, and if parliament wants to change that they will have to amend the legislation," she said.

A successful appeal would also nullify the decision.

Scott Gilbert, the department's director of conservation and protection in Winnipeg, said the ruling was the first time they had encountered such an interpretation.

"The department has considered nets and gear to be gear and/or apparatus. We always felt they were the same," he said.

When asked about the decision, another DFO spokesperson, Jacob Barkley, said that the case was significant enough for them to pursue an appeal but he was not able to comment about the kinds of consequences such a ruling would have on how the department enforces the act.

The ruling came at a time when the act is under scrutiny already. Parliament tabled Bill C-32 in November 2007, a proposed replacement for the previous fisheries act, which came into use in 1868, making it one of the oldest statutes in use.

Tkatch said the appeal is in its early stages, and it could be months before a hearing occurs.

"We still have to order all the transcripts and prepare a written argument," she said, adding, "it takes a while."

For a first offence, setting unmarked fishing gear can come with a fine not exceeding $100,000. Additional infractions include other fines and possible jail time.