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Statutes of Newfoundland 1996


CHAPTER P-26

CHAPTER P-26.1

AN ACT TO ESTABLISH THE PROFESSIONAL FISH HARVESTERS CERTIFICATION BOARD AND TO PROVIDE FOR THE CERTIFICATION OF PROFESSIONAL FISH HARVESTERS

(Assented to June 18, 1996)

Analysis

1. Short title

2. Definitions

3. Board established

4. Objectives of board

5. Composition of board

6. Term of office

7. Officers of board

8. Executive committee

9. Executive director

10. By-laws

11. Code of Ethics

12. Certification criteria

13. Eligibility for certification

14. Appeal to board

15. Appeal board

16. Date of appeal board

17. Decision of appeal board

18. Decision final

19. Appeal panels

20. Disciplinary board

21. Disciplinary proceeding

22. Appeal to court

23. Member's expenses

24. Expenses of board

25. Budget

26. Audit

27. Members not liable

28. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


Short title

1. This Act may be cited as the Professional Fish Harvesters Act.

Definitions

2. In this Act

(a) "board" means the Professional Fish Harvesters Certification Board; and

(b) "professional fish harvester" means a person who has been certified as a professional fish harvester by the board.

Board established

3. The Professional Fish Harvesters Certification Board is established as a corporation.

Objectives of board

4. The objectives of the board are:

(a) to promote the interests of fish harvesters as a professional group;

(b) to be responsible for defining the standards for professionalization;

(c) to provide an advisory role to the federal and provincial governments in the formation of fisheries policies consistent with the common good of fish harvesters, namely in the areas of resource conservation, fish quality improvements, a reasonable return to participants, optimizing product value, and the safety of fish harvesters and the public;

(d) to operate and maintain a fish harvester registration system;

(e) to develop, evaluate and recommend courses under the professionalization program;

(f) to issue certificates of accreditation to qualifying fishers;

(g) to develop, maintain and monitor compliance of a Code of Ethics for fish harvesters;

(h) to apply sanctions against fish harvesters who violate the board's Code of Ethics; and

(i) to provide an independent appeals procedure for fish harvesters.

Composition of board

5. (1) The board shall consist of 15 members appointed by the minister.

(2) The membership on the board shall comprise

(a) 7 representatives of the organization that has been recognized by the Labour Relations Board as representing fish harvesting in collective bargaining;

(b) one representative from the Association of Newfoundland and Labrador Fisheries Co-operatives;

(c) a representative of the Department of Fisheries and Aquaculture;

(d) a representative of the Department of Education;

(e) 2 representatives of the Department of Fisheries and Oceans (Canada);

(f) a representative of Human Resources Development (Canada);

(g) a representative of a post-secondary education training institution; and

(h) a representative-at-large chosen by the minister.

(3) The representatives referred to in paragraph 2(a) shall be chosen in a manner which ensures that all areas of the province and the different fleet sectors are represented on the board.

Term of office

6. (1) Members of the board shall be appointed for a term of 3 years and are eligible for re-appointment.

(2) Where a vacancy occurs on the board, the minister shall appoint a person for the unexpired portion of the term of the person whose leaving created the vacancy.

(3) The appointment of a person to fill a vacancy on the board shall be made in keeping with the criteria for appointment contained in section 5.

(4) The office of a board member who misses 3 consecutive meetings without cause shall be considered, upon a report by the board to the minister, to be vacated.

(5) Notwithstanding subsection (1), of the members first appointed, one-third shall be appointed for a term of one year, one-third shall be appointed for a term of 2 years and one-third shall be appointed for a term of 3 years.

Officers of board

7. The members of the board shall elect from among those members who are not representatives of a department of the government of the province or of the Government of Canada a chairperson, a vice-chairperson and a secretary.

Executive committee

8. (1) There shall be an executive committee of the board comprising the chairperson, the vice-chairperson, the secretary, one other member of the board elected by the members of the board and the executive director.

(2) The executive committee shall have the powers and carry out the duties and responsibilities that the board may in the by-laws assign to it.

Executive director

9. (1) The board shall appoint an executive director who shall be the chief executive officer of the board and perform those duties and responsibilities assigned by the board.

(2) The executive director may attend and participate in meetings of the board and the executive committee of the board but he or she does not have the right to vote.

(3) The board may employ those other persons in addition to the executive director that it considers necessary for the effective management of its affairs.

By-laws

10. The board may make by-laws to enable it to more effectively carry out its duties and responsibilities and for the management of the board.

Code of Ethics

11. (1) The board shall, with the approval of the minister, adopt a Code of Ethics of Professional Fish Harvesters.

(2) A professional fish harvester shall conduct himself or herself in accordance with the Code of Ethics and failure to do so constitutes professional misconduct by the fish harvester.

Certification criteria

12. (1) The board shall, with the approval of the minister, establish criteria respecting the certification of professional fish harvesters including different criteria respecting different classifications.

(2) The board may, with the approval of the minister, establish different classifications of professional fish harvesters.

(3) The board may, with the approval of the minister, establish criteria respecting the certification as professional fish harvesters of persons who were engaged in fish harvesting before this Act came into force but who do not meet the other criteria necessary to be certified as a professional fish harvester.

Eligibility for certification

13. (1) A person is eligible to be certified as a professional fish harvester who, as a result of his or her,

(a) education;

(b) training;

(c) experience as a fish harvester;

(d) a combination of education, training or experience as a fish harvester; or

(e) degree of dependency on the fishery for his or her livelihood,

meets the criteria established by the board for certification.

(2) The board shall issue a certification for which he or she is qualified to a person who is eligible under subsection (1) and who pays the fee set by the board.

(3) The board shall renew the certification annually of a professional fish harvester who pays the fee that the board may set and who continues to meet the criteria for certification.

Appeal to board

14. (1) A person whose certification is refused by the board or who is dissatisfied with the certification that he or she is given may appeal to the appeal board appointed under section 15.

(2) A person who wishes to appeal a decision of the board with respect to his or her certificate shall file a notice of appeal with the executive director stating the ground for the appeal.

(3) The executive director shall forward the notice of appeal to the appeal board and shall inform the appellant of the date, time and place at which the board will hear the appeal.

Appeal board

15. (1) The appeal board shall consist of 3 members appointed by the minister.

(2) Two of the members shall be professional fish harvesters who are not members of the board chosen from a list provided by fish harvesters organizations.

(3) The third member of the board shall not be a professional fish harvester and shall serve as the chairperson.

(4) The members of the appeal board shall be appointed for a 3 year term and are eligible for re-appointment.

Date of appeal board

16. The appeal board shall review all the relevant information associated with an appellant's application to the board for certification and shall provide the appellant an opportunity to appeal before the board in person or through a representative.

Decision of appeal board

17. The appeal board may confirm the decision of the board or may substitute the decision which it considers fair and just.

Decision final

18. The decision of the appeal board is final and binding on the board.

Appeal panels

19. (1) For the period of 18 months from the date this Act comes into force, this section applies to an appeal from a decision of the board with respect to a refusal to certify a person or with respect to a certification that is given by the board, notwithstanding sections 14 to 18.

(2) The minister may appoint 2 or more appeal panels consisting of 3 members, 2 of whom shall be professional fish harvesters who are not members of the board chosen from a list provided by fish harvester's organizations.

(3) The third member of the panel shall not be a professional fish harvester and shall serve as the chairperson.

(4) An appeal panel shall only have jurisdiction to hear appeals from persons resident in that part of the province for which the minister makes the panel responsible.

(5) Sections 14, 16 and 17 apply to an appeal to the panel as if the appeal were being made to the board and to a panel as if the panel were the board.

(6) An appeal lies to the appeal board from a decision of an appeal panel and sections 14, 16, 17 and 18 apply to that appeal as if the appeal had been one from a decision of the board.

(7) This section shall have no effect 18 months from the date this Act comes into force.

Disciplinary board

20. (1) The minister shall appoint a disciplinary board which shall hear and determine complaints against professional fish harvesters.

(2) Subsections 15(2), (3) and (4) apply to the appointment of the disciplinary board under this section.

Disciplinary proceeding

21. (1) Where the disciplinary board is of the opinion or has reasonable grounds to believe that a professional fish harvester has failed to comply with the Code of Ethics, the board shall investigate, hear and determine the matter.

(2) The board shall give 2 weeks notice by registered mail or personal service to the professional fish harvester who is the subject of the proceeding of the date, time and place of a hearing into the matter.

(3) The professional fish harvester who is the subject of the disciplinary proceeding has the right to be heard and to be represented by a lawyer or other person at the hearing.

(4) Where the board conducts a hearing under subsection (1), it shall keep a written record of the proceedings, findings, determination and reasons.

(5) The board may, where it determines that the disciplinary proceeding against the professional fish harvester is substantiated, take disciplinary measures that the board considers appropriate including,

(a) suspend the certification of the professional fish harvester for the period the board considers appropriate;

(b) cancel the certification of the professional fish harvester permanently;

(c) impose upon the professional fish harvester a monetary penalty not to exceed $10,000; and

(d) impose those other conditions or limitations that the board considers appropriate.

(6) For the purpose of conducting a disciplinary proceeding under this section, the disciplinary board and each member has the powers that are or may be conferred on a commissioner under the Public Inquiries Act.

(7) Notice of the decision of the disciplinary board shall be sent by registered mail to the professional fish harvester who has been the subject of the proceeding.

(8) Where a professional fish harvester's certification is suspended or cancelled, he or she shall return it to the executive director of the board within 10 days of receiving the notice of suspension or cancellation unless he or she appeals to the Trail Division from the decision of the board under section 21.

Appeal to court

22. (1) An appeal may be made to the Trial Division from a decision of the disciplinary board under section 20.

(2) The Rules of the Supreme Court, 1986 respecting appeals apply to an appeal under this section.

Member's expenses

23. Members of the board, the appeal board and the disciplinary board shall be paid from out of the funds of the board the reasonable expenses incurred in performing their duties on a scale equivalent to that set by the government of the province for its employees.

Expenses of board

24. The expenses of the board, the appeal board and the disciplinary board shall be defrayed from the fees paid by professional fish harvesters to the board for certification.

Budget

25. (1) The board shall, each year prepare, adopt and submit to the minister a budget containing estimates of revenue and expenditure for the next financial year.

(2) The financial year of the board shall be the calendar year.

Audit

26. (1) The accounts of the board shall be audited annually.

(2) The board shall provide the minister with a copy of the auditor's report.

Members not liable

27. A member of the board, the appeal board or the disciplinary board is not liable for an action done in good faith in carrying out his or her duties and responsibilities as a board member.

Commencement

28. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.

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