FFAW-Unifor is pleased with Friday afternoon’s unanimous ruling from the federal court appeal upholding the Federal Government's right to enact and enforce policies to protect the inshore, owner-operator fishery. The case of Kirby Elson and Canada (Attorney General) was brought to the Federal Court of Appeal in an attempt by large fishing corporations to abolish the Minister's capacity to enforce the inshore fishery owner-operator, fleet separation, and PIIFCAF policies.
The owner-operator and fleet separation policies are essential for the social and economic well-being of coastal communities and Newfoundland and Labrador, in general. The policies ensure that the benefits of the inshore fishery are focused on the local level and under local stewardship, keeping the value of the fishery in our province. Without these policies, there is no control over who benefits from the wealth of our adjacent waters - harvesters and communities become just a small part of the supply chain from which someone else profits. Without the policies, young harvesters are unable to purchase their own fishing licenses at a reasonable cost.
The challenge to the Minister’s authority was supported by the Association of Seafood Producers and several of its larger members. This group retained the services of one of Canada’s largest law firms in an attempt to bar the federal government from regulating “controlling agreements”, whereby processing companies establish control of a fishing license held in the name of a harvester. These agreements violate fleet separation and owner-operator policies.
“Controlling agreements are the greatest threat against the sustainability of the inshore fishery in Newfoundland and Labrador,” says Keith Sullivan, President of FFAW-Unifor. “These agreements use legal loopholes to avoid the owner-operator and fleet separation policies for the sole benefit of corporations and to the detriment of inshore fishers and their communities. These agreements disrupt every aspect of the inshore fishery, from pricing to bringing young people into the fishery.”
The decision from the Federal Court of Appeal reinforced and strengthened the 2017 decision of Justice Strickland of the Federal Court. The Court of Appeal rejected all of Mr. Elson's arguments, finding that he was treated fairly, that the Minister's discretion was not fettered, and that the Federal Government did have the constitution authority to make and enforce policies on fleet separation and owner-operator.
The Court of Appeal also made certain to note that a controlling agreement Is a direct violation of fleet separation. At paragraph 60 of the decision, Justice Webb wrote for the court that:
In this case, as a result of the controlling agreement, Mr. Elson had effectively transferred to Labrador Sea Products Inc. and Quinlan Brothers Limited all of his rights to exploit the licences that were issued in his name and his control over these licences. These companies acquired the benefit of these fishing licences and the right to exploit the fisheries resource related thereto. As a result of the Fleet Separation Policy (which has been in place since 1979), this is something that these companies could not do. These companies would, therefore, be doing indirectly what they could not do directly.
"As the fight against controlling agreements continues, it is critical that we apply the clear-eyed common-sense description used by Justice Webb in declaring what a controlling agreement is," Sullivan stated. "It Is a violation of a government policy to ensure that the Inshore fishery primarily benefits harvesters and communities, and not corporations."
FFAW-Unifor has long been amongst the strongest defenders of the owner-operator and fleet separation policies in Canada. It spearheaded the creation of the Canadian Independent Fish Harvester’s Federation, which is composed of fishing organizations from across Canada and focuses primarily on protecting and strengthening owner-operator and fleet separation.
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