Nova Scotia

Labrador fisherman's lawyers fight to keep his agreement with fish processor

A lawyer for a Labrador snow crab fisherman who had his fishing licence stripped by the federal minister of fisheries said the minister had no authority to do so.

Kirby Elson's lawyers say DFO has no authority to interfere in contract between harvester and processor

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

A lawyer for a Labrador snow crab fisherman who had his fishing licence stripped by the federal minister of fisheries said the minister had no authority to do so.

Kirby Elson, 62, lost his licence in 2015 because he refused to exit a controlling agreement with two Newfoundland and Labrador fish companies that gave total control of the licence and its wealth to the companies.

Byron Shaw, one of Elson's lawyers, argued Tuesday the minister of fisheries has no authority to interfere in a contract that transfers wealth between a harvester and a third party.

He said the policy the Department of Fisheries and Oceans (DFO) is enforcing has nothing to do with the management of fish stocks.

The case opened Tuesday at the Federal Court of Canada and is expected to last two days.

'All he has in his life is fishing'

Lawyer Steve Mason, who is also representing Elson, argued the minister of fisheries failed to exercise discretion by "blindly" following a policy without considering Elson's circumstances.

He said neither the minister nor an Atlantic Fisheries License Appeal Board adequately considered the impact the loss would have on Elson.

"All he has in his life is fishing. Without a license, he has no way to make a living," said Mason.

Mason said Elson has fished since he was 10 and his home port of Black Tickle, N.L., has no running water or gas station.

Elson is being represented by the Toronto law firm of McCarthy Té​trault.

Outside court, Elson declined to speak about the case, including who was paying for his legal challenge.

"No comment," he told CBC News.

The case is being heard before the Federal Court of Appeal in Ottawa. (CBC)

Justice Cecily Strickland noted Elson and his lawyers submitted no evidence to document financial hardship during the months-long process that ultimately resulted in the loss of the license in 2015.

"Wouldn't the onus be on the applicant to provide documentation to support the request?" she asked.

"There's no indication the [appeal] board would consider any circumstances," Mason replied.

Strickland continued to push back later.

"What would distinguish him from other fishers who had exited [a] controlling agreement? Isn't that the point?" she said.

Fishing industry watching case closely

The Elson case is being closely watched in the fishing industry. Inshore fishermen fear a win for Elson would set aside DFO policy to protect the independence that inshore fisheries have from a corporate takeover of the industry.

DFO currently has an eligibility category for all inshore fisherman known as "independent core."

To be eligible, independent core fishermen are required to annually declare they are not in a controlling agreement.

In Elson's 2003 agreement with fish processor Quinlan Brothers and a related company, Labrador Sea Products, the companies totally controlled his snow crab licence, supplying the boat and crew and reaping the profits.

Elson says he was too poor to go fishing without the agreement.​

According to the agreement, the two companies also have final say over what happened to his fishing licence in the event of Elson's death. 

The fisheries department's current policy specifically prohibits fishermen entering into an agreement that hands over the decision to request a transfer of a licence to someone else.

Federal government says move was justified

A lawyer for the federal government argued the minister of fisheries was justified in stripping the licence. Anne McConville said DFO was upholding policies to support and maintain fishing-dependent coastal communities in the region.

"That is in the public interest," she said.

McConville said controlling agreements are an attempt to circumvent a policy that individual fishermen — not corporations — are permitted to hold inshore fishing licences.

McConville read into the record Elson's cross-examination in which he admitted he was a "front" for the companies.

Elson said he was picked by the companies because they needed a resident in the 2J fishing area to meet DFO requirements.

Elson's lawyer Mason said the case isn't about determining whether the policy is a good one.

"The issue is whether the policy has been applied fairly," he said.


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.