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Federal court rules to protect the fish harvesters’ owner-operator policy

May 9, 2017

FFAW-Unifor is pleased with the recently released federal court decision in the Kirby Elson and Canada (Attorney General) case. In Elson, it was ruled that the owner-operator[1], fleet separation[2], and PIIFCAF[3] policies were within the authority of the Minister of Fisheries and Oceans and could be enforced. These policies are essential for maintaining strong coastal communities.

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[4]”, 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 youth participation.”

In her ruling, Justice Strickland of the Federal Court stated that the Minister’s statement of PIIFCAF “indicated that the Minister strongly believed that an independent inshore commercial fishing fleet was an important element of an economically prosperous Atlantic Canada and that the Policy underscored the government’s commitment to building a foundation of economic strength for Atlantic coastal communities.”

Justice Strickland went on to rule that “The Minister’s absolute discretion in licensing permits him or her to validly consider social, cultural or economic goals or policies when deciding whether or not to issue fishing licenses.”

With the legal challenge dismissed, there are no further hurdles to DFO applying PIIFCAF to enforce owner-operator and fleet separation. Justice Strickland’s ruling speaks to the strong case presented by the Federal Government and the validity of these policies.

“We need immediate action against controlling agreements,” Sullivan asserts. “This action needs to include the processing companies that are the primary force behind controlling agreements. PIIFCAF is a policy to protect inshore harvesters and to do that the processing companies must be held accountable. DFO has the legal authority to take such action.”

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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Courtney Glode

[1] Owner-operator – License holders who are restricted to using vessels less than 65 feet in length are required to fish their licenses personally.

[2] Fleet Separation Policy – (1) One of the objectives of the licensing policy is to separate the harvesting and processing sectors of the industry, particularly in the fisheries where licence holders are restricted to using vessels less than 19.8m (65′) LOA. This is known as the Fleet Separation Policy.

(2) Under this policy, new fishing licences for fisheries where only vessels less than 19.8m (65′) LOA are permitted to be used may not be issued to corporations, including those involved in the processing sector of the industry.

[4] Controlling Agreement – means an agreement between a licence holder and a person, corporation or other entity that permits a person, other than the licence holder, to control or influence the licence holder’s decision to submit a request to DFO for issuance of a “replacement” licence Footnote 1 to another fish harvester (commonly referred to as a “licence transfer”). Agreements between the licence holder and a Recognized Financial Institution (RFI) are not Controlling Agreements if (1) there is no third party involved in the Agreement or (2) any co-signor, guarantor or other surety involved in an agreement does not control or influence the licence holder’s decision to submit a request to DFO for the issuance of a “replacement” licence to another fish harvester.