Small-town fisherman takes on Ottawa over fishery policies
Kirby Elson says controlling agreements let him operate his fishing vessel
A fisherman from a small fishing town in Labrador has launched a legal challenge that could overturn decades-old federal policies in hopes of preserving independent inshore fisheries in Atlantic Canada.
Kirby Elson of Cartwright, N.L., applied in June for a judicial review of a 2015 decision by the federal fisheries minister to take away his commercial fishing licences.
Elson, 61, had refused to obey a DFO requirement that he exit a so-called controlling agreement with two Newfoundland and Labrador fish processors: Quinlan Brothers Ltd. and Labrador Sea Products Inc.
Controlling agreement pays for vessel, crew
Under the March 2003 agreement, the companies financed Elson's snow crab licence, provided the vessel and crew, paid the insurance and covered vessel maintenance. Elson landed and sold his fish at the direction of the processors.
The agreement stipulated he could not transfer the licence without company permission. Even in death, Elson's estate was required to transfer the licence to a designate of the processors.
The fishery is essential to my personal identity, my way of life and my financial well-being.- Kirby Elson
In his Federal Court affidavit, Elson said he could not afford to fish without the arrangement and to end it would deprive him of his livelihood of 50 years.
"Without the controlling agreement I would not have the money or financial backing to acquire a vessel at all, certainly not a vessel of the size and quality I receive under the controlling agreement," Elson said in the affidavit.
"The fishery is essential to my personal identity, my way of life and my financial well-being."
Elson is being represented by one of Canada's biggest law firms, McCarthy Tétrault of Toronto.
CBC News was unable to reach Elson and McCarthy Tétrault did not respond to a request for comment. The processing industry's Association of Seafood Producers, which submitted an affidavit on behalf of Elson, also did not respond to CBC News.
Three legal arguments
The affidavit lays out three arguments.
- The minister's discretion to renew Elson's fishing licence was "fettered" by "blindly" following the DFO requirement.
- The minister denied Elson procedural fairness by refusing to consider an exception.
- The minister's authority was exceeded because policies aimed at social, economic and cultural effects of the fishery are not authorized in the Canadian Constitution.
Successive federal governments have said controlling agreements are an end run around policies designed to keep inshore fisheries in local hands.
Ottawa has said terminating controlling agreements would strengthen the fleet-separation policy, which prevents corporations from both catching and processing seafood, as well as the owner-operator policy, which stipulates the main benefits of inshore fishing licences must go to the licence holders.
The policies have been abandoned in a number of fisheries since they were introduced in the 1970s and 1980s.
Phillip Saunders, a professor at Dalhousie University's Shulich School of Law, has written on the issue and provided advice to fisheries organizations opposed to controlling agreements.
He told CBC News the first two arguments are so narrow that even if the decision is overturned, it's unlikely to set a precedent. Challenging the minister's authority to impose measures on social, economic and cultural grounds is different.
"If this policy, as it now stands, is found to be beyond the scope of the minister's power, you would see a situation, I think, in which licences would quickly be accumulated and it would become very difficult for new or younger fishers to enter into a fishery and acquire licences in a transfer," Saunders said.
"It would have serious implications for ensuring that the benefits of inshore fisheries actually accrue to the communities adjacent to them or that traditionally fished them … rather than having it done as a purely industrial or commercial enterprise where licences can be handed around like any other commodity."