Nova Scotia

Stakes of inshore fisheries case are 'absolutely massive,' says observer

The Federal Court will hear final arguments in Ottawa Wednesday morning in the case of Cartwright, Labrador fisherman Kirby Elson.

Fisherman Kirby Elson is appealing a 2015 decision by feds to strip him of his snow crab licence

The case brought forward by Kirby Elson, centre, has important ramifications for the independence of the inshore fishery. (CBC)

How much power is given to a minister of fisheries and oceans is at the heart of a case that could open — or close — the door to a corporate takeover of Atlantic Canada's inshore fisheries.

The Federal Court will hear final arguments in Ottawa Wednesday morning in the case of Cartwright, Labrador fisherman Kirby Elson.

Elson is appealing a 2015 decision by the minister of fisheries to strip him of his snow crab licence because he refused to exit a controlling agreement with two fish processors, Quinlan Brothers and Labrador Sea Products.

The 2003 agreement gave the companies total control of the licence and its profits.

The Department of Fisheries and Oceans says such agreements are a deliberate circumvention of rules that state individual fishermen — not corporations — are allowed to hold and control inshore licences.

From Cartwright to Ottawa

In evidence filed before Tuesday's hearing, Elson admitted he was a "front" for the companies.

He made the trip from Cartwright to Ottawa and was accompanied in court by two officials with Quinlan Brothers as well as the executive director of the St. John's-based Association of Seafood Producers and lawyers from Toronto law firm McCarthy Tetrault, which is representing him.

When asked who was paying for his legal challenge, he replied "no comment."

The processing industry also declined to speak on the case.

DFO has no business interfering in business deal

Inside the court, one of Elson's lawyers argued the minister of fisheries and oceans did not have the constitutional authority to "frustrate" a private contract between a fish harvester and fish processors.

Byron Shaw said the controlling agreement was a transfer of wealth between the parties and had nothing to do with conserving or protecting fish stocks.

Another lawyer on the Elson team, Steve Mason, said they were not challenging the DFO policy — only the way it was applied.

Their case also includes an argument the minister "fettered" his discretion, or didn't exercise reasonable judgment, because — they claim — he failed to take into account extenuating circumstances in Elson's case.

Elson said the controlling agreement was the only way he could afford to pursue his livelihood of 50 years as a fisherman.

Justice Cecily Strickland pushed back on the claim, noting Elson failed at any point to supply evidence of financial hardships that "would distinguish him from other fishers who had exited their controlling agreements."

Why people are watching this case

Robert Keenan, a lawyer, was in the courtroom as an observer for inshore fisheries groups.

He fears an Elson victory could end DFO's policy to protect inshore fisheries.

"The stakes are absolutely massive," Keenan told CBC News outside the court.

"This is a monumental day for coastal communities in Newfoundland and Labrador and all of Atlantic Canada. If we lose the future is not going to be bright," he said.

Keenan predicted a disappearance of inshore fisheries if DFO loses.

He said that's what happened in other fisheries where DFO has abandoned polices such as owner-operator (the licence must be fished by an owner and operator of the enterprise) and fleet separation, which prevents companies from both catching and processing the fish.

In court, however, the federal government said it was fighting to protect inshore fisheries in Atlantic Canada.

Anne McConnville, the lawyer representing DFO, said the minister was acting to support and maintain fishing dependant communities in the region.

"The minister has the authority to manage the fishery in the public interest and to achieve social and economic objectives," McConville told the court.

Several officials from DFO were in the courtroom including Morley Knight, the Maritimes regional director, who was the respondent in Elson's application.

Knight also refused to comment outside the court. The case will conclude Wednesday morning. It's expected Justice Cecily Strickland reserve her decision.


Paul Withers


Paul Withers is an award-winning journalist whose career started in the 1970s as a cartoonist. He has been covering Nova Scotia politics for more than 20 years.