A legal challenge to the Department of Fisheries and Oceans owner-operator policy could have set a legal precedent that would threaten the future of the independent inshore fishery, some in the industry believed.
The owner-operator policy was enacted to ensure that ownership of inshore fishing vessels remained in the hands of inshore fishermen, not corporate entities.
The case, which was scheduled to be heard Feb. 28, involved Kirby Elson, a Labrador snow crab fisherman and the federal government.
When the policy was adopted, 700 fishermen were told if they were owned by a third party with controlling interests, they had seven years to divest themselves of these agreements. Failure to do so would mean the loss of their license — some of them valued in the million-dollar range as they are to this day.
Elson didn’t declare and his license was revoked.
He says he couldn’t operate his fishing vessel without the controlling agreement.
However, CBC reported on Jan. 13, that Elson notified his lawyers to withdraw the legal challenge.
There was obviously much opposition to this proposed court challenge.
“This court challenge by fish processors is an attempt to do away with the inshore fishery as we know it. Make no mistake about it. This is an attack on fish harvesters,” said Keith Sullivan, President of the Fish, Food and Allied Workers Union (FFAW-Unifor).
“This legal challenge, if successful, threatens to destroy the independent inshore fleet and open up the industry to widespread controlling agreements.”
The FFAW-Unifor and its partner organization, the Canadian Independent Fish Harvesters’ Federation, had retained the services of Phillip Saunders, Q.C., former Dean of Dalhousie Law School, to provide legal advice on the case and to prepare to file for intervenor status, if necessary.
“The current legal challenge and the slow pace of enforcement by the Department of Fisheries and Oceans shows the limitations of not having key policies like owner-operator and fleet separation enshrined in regulation,” continued Sullivan. “Controlling agreements need to be understood as illegal arrangements and not just contrary to policy. Owner-operator and fleet separation are pillars, not just policies, of our rural economy. They need regulatory protection.”
This was not the first time the issue was to have appeared in court.
Ten years before the owner/operator became fishery policy, Comeau Seafoods of Saulnierville, Nova Scotia lost its case after it went to court on the premise that DFO didn’t have the power to revoke licenses. It involved the acquisition of four offshore lobster licenses, which was vehemently protested by the inshore sector.
The court dismissed the appeal, ruling that the minister acted within his power because the purpose was to invoke government policy.
Inshore fishing groups, especially the Maritime Fishermen’s Union, have been fighting this issue for years, but its ability to move Fisheries and Oceans to make the owner/operator policy part of the Fisheries Act have so far been futile.
And while most inshoremen say they oppose trust agreements, the agreements exist because they signed up for the deals when offered $800,000 plus for the privilege.
This issue goes back more than a decade or so as lobstermen in LFA 34, led in part by the Maritime Fishermen’s Union, were appalled at what was happening before their eyes with Fisheries and Oceans sitting on the fence on this one.
A meeting was held in West Pubnico over a decade ago to discuss the issue. In the audience were fish company representatives and one of the participants at the podium was a Yarmouth lawyer who had written up many of these trust agreements. He produced an agreement for all to see.
The companies saw these arrangements as crucial to their business plans because it assured delivery of the key aspect of their operations i.e. the raw fish supply.
The issue then and now for the harvesters is the loss of their ability to negotiate prices at the wharf if companies gained access to the majority of fishing licenses. Representations were made to the Senate committee devoted to the commercial fisheries and their demands were backed by the senators, but to no avail.
Grahame Gawn, Meteghan-area lobsterman and president of the MFU local in the area, appeared before the Standing Committee on Fisheries recently representing the the union and the Canadian Independent Fish Harvester Federation, pleading, once again, that the owner-operator policy be included in the Fisheries Act.