What if the Halibut Shoe was on the Other Foot?

[IronNoggin]

For just a moment, let's put the shoe on the other foot as it were. What if the commercial holders were subject to forgoing a percentage of their overall collective quota, and in order to acquire access, were forced to pay the entity that held that an inflated rate to do so? All directly supported, in fact imposed by none other than DFO.

OH! Wait a minute! That has already occurred!!

That's right Folks. Back in 2001 the DFO Minister instituted the practice of holding 10% of the entire quota to be granted to the holders of Halibut Licenses in British Columbia and assigning that to the Pacific Halibut Management Association (PHMA). Then, as in now, the PHMA was and is a Private Organization - a commercial fishermen’s association, with claims of representing 80% of commercial halibut license holders in British Columbia.
This private club's website is located here: http://www.phmana.org/

Over the years, some of the fishermen who had to pay the PHMA for access to something they thought they "owned" became disgruntled at having to do so. Not much unlike the recreational angler of today. Their answer was soon forthcoming in a Class Action Lawsuit filed against both the PHMA and DFO.

Within that Lawsuit, they claimed:

- The PHMA acted directly as both Agent and Partner with the Minister;

- That in 2001 and subsequent years, the Minister issued a Licence for the PHMA (# 437) and fueled that annually with 10% of the overall quota annually;

- The plaintiffs were forced to pay a "levy" to the PHMA for the 10% of "their" quota thus granted to the PHMA by the Minister;

- And that this practice was conducted from 2001 through 2007.

The granting of this quota generated huge sums of money, some of which the PHMA was remitted directly to the Minister for purposes of funding government fisheries management activities, and a further part of that funding collected from License holders was used to fund fisheries management activities that the PHMA conducted as Agent or Partner of the Minister.

In the original Writ, the plaintiff noted that by taking "his" 10% away annually and using that for fisheries management purposes, the Minister:

- Appropriated a Public Resource that did not belong to him to finance fisheries management activities;

- Violated the provisions of the Financial Administration Act (sect: 19 & 32)

- Levied a Tax unauthorized by Parliament;

- Collected monies from the plaintiff without Legislative or Constitutional Authority;

- Converted to his Ministry's use monies and/or halibut Quota "Belonging" to the plaintiff;

and,

- Illegitimately used his power, either tortuously or contractually or both to coerce the plaintiff into paying excessive and unlawful fees.

And so, based on these accusations, the Suit demanded a Public Statement from the Minister that his actions in this matter were Unlawful, accounting and restitution of all monies paid in this regard by all effected parties from 2001 forward, Damages for Misfeasance in Public Office, Damages for Unlawful Administrative Action, and of course, related Court Costs.

WOW! What a Tremendous Response! When they perceived they were being downtrodden, they very much did grab the Bull($hit) by the horns and stood ready to do Battle! Impressive to say the least!

And... Guess what... THEY WON!

At the time of ruling the Recreational Sector politely inquired as to the possible availability of accessing that 10%, as it was already recognized that 12% was not adequate. Not hard to guess what the answer was...

Imagine, 10% to a Private Club - some for the purposes of bolstering fisheries management, the balance for purposes of their own. This when the Recreational Sector was afforded barely a scant amount more. Unbelievable if it weren't true!

And so now, when the shoe is on the "other" foot, why do they find it so difficult to understand that we are simply standing up for what we believe to be Fair, Right and Just? What's Good For The Goose...

And nope, I ain't making this stuff up. Here it is in Black & White for any who wish to verify: http://www.bcbusinesslawblog.com/EBL_DFO.pdf

Man what a complicated web...

Cheers,
Nog

 

[IronNoggin]

If you could please post a link or any information you may have regarding the immoral and illegal position you have implied. Just the facts please.

Since this question was asked by one who has been copying my posts here and loading them over at HBC, I thought it only fair to respond here accordingly...

Certainly

Immoral: (ih-mawr-uh

l) 1. violating moral principles; not conforming to the patterns of conduct usually accepted or established as consistent with principles of personal and social ethics.

2. licentious or lascivious.

Illegal: (ih-lee-guhl)
1. forbidden by law or statute.
2. contrary to or forbidden by official rules, regulations, etc.

By definition it can be seen that the two are very closely intertwined. So, as you wander through the various literature's cited, I'll leave the matter of which definition that each may be more closely related to up to the reader...

DFO's Mandate is centered on these principles: biological conservation, economic efficiency and social concern [FONT=Verdana, Arial, Helvetica, sans-serif]for the benefit of present and future generations.

It would strongly appear that the principles of "economic efficiency", "social concern" and "the benefit of present and future generations" was not adhered to by Minister Shea by actively promoting the further privatization of this particular (halibut) fishery, nor a consideration in the ongoing development of that same privatization in most marine fisheries. While YOU may wish to argue the point, methinks most understand the economic role recreational fishing carries far surpasses that of the commercial operations; that the social concern amongst the vastly larger user group has reached unprecedented levels; and that the wisest use, therefore benefits for today's and future generations relies heavily upon equitable access.

So, with that addressed (immoral yes, illegal - likely) let's get on with what the Professionals in these matters have to offer:

[/FONT]"Canada’s fisheries are a “common property resource”, belonging to all the people of Canada. Under the Fisheries Act, it is the Minister’s duty to manage, conserve and develop the fishery on behalf of Canadians in the public interest"
http://scc.lexum.umontreal.ca/en/1997/1997scr1-12/1997scr1-12.html

"The constitutionally entrenched Charter of Rights and Freedoms in Canada has a strong non-discrimination clause that offers individuals "... the equal protection and equal benefit of the law without discrimination...." Certainly, the case can be made that in Canada, as in Iceland, ITQ provisions have discriminated in favor of particular groups in the fishery, allowing them substantial wealth benefits from the public fishery resource, at the expense of others."
http://www.google.ca/url?sa=t&sourc...sg=AFQjCNEA8z-y1KwOeF0qiMJEJ88nwj2Utg&cad=rja

[FONT=Verdana, Arial, Helvetica, sans-serif]"A major objective of Canadian fisheries policy is to ensure that allocation of fishery resources will be on the basis of equity, taking into account adjacency to the resource, the relative dependence of coastal communities, and the various fleet sectors (impacts) upon a given resource, and economic efficiency and fleet mobility."

[/FONT][FONT=Verdana, Arial, Helvetica, sans-serif]"The management process for halibut has successfully accomplished the goal of maintaining the productivity of the stock but has failed miserably in managing the fishery or the people harvesting the resource to achieve an efficient use of human and capital resources"[/FONT]
[FONT=Verdana, Arial, Helvetica, sans-serif]http://www.fao.org/fi/oldsite/FCP/en/CAN/body.htm

"The third major principle that comes into play is equity, or, the equitable allocation of access rights among competing interest in accordance with government policy... Of equal importance is the notion that fishery is a common, public resource that should be managed in a way that does not create or exacerbate excessive interpersonal or interregional disparities.
http://www.caricom-fisheries.com/LinkClick.aspx?fileticket=L8U3BuEh5LA=&tabid=198
[/FONT]
"Canada’s fisheries are a “common property resource”, belonging to all the people of Canada. Under the Fisheries Act, it is the Minister’s duty to manage, conserve and develop the fishery on behalf of all Canadians in the best public interest"
http://scc.lexum.umontreal.ca/en/2008/2008scc58/2008scc58.html

"The Crown is the steward of the resource for the public, not its owner."

"It is recognized in Magna Carta. By reason of that statute, ". . . no restriction can be put upon that right of the public by an exercise of the prerogative in the form of a grant or otherwise"
http://www.aspercentre.ca/Assets/As...+-+Sportfishing+Defence+Association+et+al.pdf

"Concerning the owner-operator policy, I think government feels the same
as we do: that an individual is given a license, and that individual should be the one who fishes. That’s not what’s happening, of course. …

"I have said right from day one that fish in the ocean are a common property resource. The resource is owned by all the people of Canada. We need to get it back into the hands of the people of Canada because we have not properly managed that over the years…"
Then DFO Minister Hearn: http://www.ccpfh-ccpp.org/cgi-bin/Files/Vol2-Issue3,E.pdf

"It may be observed that the notion of common access property rights operates at different scale levels. In Canada the federal government represents the ownership of tidewater fish resources in which all citizens of the country may thus claim an interest. Appropriately, it is at this national level that the federal government recognizes universal citizen access to recreational fish resources."

"The nature of common property marine resources precludes individualized assignments of full property rights to individual fish in the wild"

"In several of BC's fishery dependent communities there is an evidently high level of concern that their interests have been severely harmed by recent rationalization matters to "privatize" fisheries access."

This paper has also drawn attention to continuing effects of a previous fisheries policy imbalance, where an exclusive focus on narrow considerations of economic efficiency led to the installation of fishery access rights based on such devices as ITQ's and stacked licenses... Both devices have adverse social impacts. They lead to relatively high-level capitalization of fishing enterprises, tending to concentrate fishery access rights and rent capture (lease) opportunities disproportionately in the hands of well-heeled individuals and enterprises.
http://www.econ.sfu.ca/research/discussion/dp00-9.pdf

"Some quota leasing is necessary, especially in BC’s integrated groundfish fishery, for conservation... However, by far the greatest volume of leasing is motivated by lucrative quota lease fees. In some cases, processors even lease and then sublease quota, passing on all the costs to fishermen. Working fishermen are increasingly becoming “tenants” who pay exorbitant rents to landlords, or “sealords,” who own the quota. The lucrative leasing has, in turn, driven up the price of purchasing quota, making ownership prohibitively expensive for many fishermen.

"Privatization is probably the most controversial and convoluted issue in the ITQ debate."

"Quota values are completely out of proportion to catch value."

"High lease costs have had a ruinous effective on the competitiveness of the BC halibut fishery."
http://www.ericennotamm.org/wp-content/uploads/2010/01/ITQ_Cautionary_Tale_FINAL2.pdf

Break due to post length...

 

[IronNoggin]

And last on this list (not exhaustive by any means) is the Judgment of the Supreme Court of Canada wherein it is noted that the Government is NOT legally authorized to transfer ownership of marine resources still "at sea" to anyone, under any circumstances. Something which the current ITQ system very much does.
Saulnier vs RBC: http://scc.lexum.umontreal.ca/en/2008/2008scc58/2008scc58.html

I would encourage you to take a moment and review each of the documents cited above. It will take a little time, but collectively they are very enlightening on the subject matter at hand...

Regardless of whether you prefer the "immoral" or "illegal" definition, it is more than apparent that the standing very much exists for a class-action lawsuit against DFO and the Federal government regarding the halibut fishery, and likely several more that are under current development. While the current politically oriented protest was and is an interesting experiment which continues, methinks it may eventually take intervention by the Supreme Court to put the matter to bed.

I still hold out hope that by working together we can forgo such a drastic turn of events. The Working Fishermen and the Recreational Sector have so much in common in this regard as to be considered nearly the same. I very much hope their are sufficient enlightened individuals within each of these sectors to begin the process of drastically needed positive change before the matter escalates even further into legal actions.

Cheers,
Nog

 

[Gunsmith]

If it comes to a legal challenge I am willing to forward $1000. towards this cause and if need I could scratch-up more.

 

[Bod]

Time to hire a lawyer I think. I'm in.

 

[Charlie]

Nog... the only thing I can think of here, is - Well done!

 

[Ding Dong!]

Ding Dong!

 

[Business Time]

Access Pro Bono Society of British Columbia
http://probononet.bc.ca/

 

[Ding Dong!]

Consider doing, of coarse subject to a qualification, making or filing a claim of right based on interference with plaintiffs common of fishery. Under claim of right, the privilege of fishing for halibut Feb 1 to Dec 31 in each year, the court should recognize lawful origin for the usage and as such ought to be presumed if reasonably possible, and that it must be presumed that the original grant to the corporation of its several fishery was subject to a trust or condition in favor of such in accordance with the usage. No doubt the courts will go very far in presuming lawful origin of a custom for all inhabitants to fish in a several fishery, where there has been immemorial user; but where the nature of the thing claimed is itself destructive of the subject-matter, a halibut fishery; and where it is antagonistic to other dominant claims with which it comes in conflict; or where there are other reasons that interfere and show that the immemorial user cannot possibly point to that which alone makes it good in law,- the courts will not presume an alleged lost grant.

I suspect that you are not claiming correctly; as read you are stating an action for interfering with Plaintiffs fishery declared on the right "common fishery". However, I believe the correct claim would be, stating an action for interfering with Plaintiffs fishery declared on the right "common of fishery". As licensed anglers we are not participating in a common fishery. This does not mean that you are wrong in the statement your claim, just that one may be dismissed whereas the other may not.

 

[Gunsmith]

I stand behind my offer, get the ball rolling and I will be scratching all the cash I CAN GET.

 

[Little Hawk]

Great work Nog! I've been stewing over this prospect for some time now. Your work here I think validates the cause for court action against our corrupt government.

Let's do it! Get the 'Coalition' on board!

 

[IronNoggin]

Sheesh DingDong, I have enough trouble deciphering the contents of the various writs, decisions and papers I cited, and at times struggle some with that in regard to true meaning. But I have to admit, that post of yours above leaves me close to baffled. Maybe the java hasn't kicked in yet this morning, or perhaps my archaic reptilian brain is somewhat resistant to that style of presentation, but I am having difficulties ingesting the message. Hopefully it wouldn't be too much to ask for you to render that down into a Layman's Version?

By presenting the information I have, I was simply pointing out that there MAY exist grounds for legal action in pursuit of a more realistic allocation ratio. I am not a lawyer by any means, so am treading on somewhat unsafe ground in that regard. From this Layman's point of view, it does appear I have interpreted the matter correctly, however would caution that a review by someone with a good deal of Legal Experience is warranted to validate my suspicions.

I should also note that although this does seem to be a possible avenue for us to explore, I am not advocating that we jump into such an action right away. There is a hell of a lot we would have to consider before doing so IMHO. The first step would seem to have a couple of lawyers experienced with this type of suit review the current Legislation and Case Law to determine if there exists a good chance of success. Then of course is the matter of whom we would be targeting - obviously the Minister, but what if she is defeated in an upcoming election or replaced in that office prior to the suit being launched? Also mustn't forget that DFO likes the way things are, and have an entire battery of their own lawyers, both in-house and on retainer, twiddling their thumbs and just hoping for some "meat to chew on" to justify their existence. And finally the money. Bucking one with as deep pockets of the Gov (who actually employs your own tax dollars against you) would take a lot of time, and a LOT of jingle! Are we prepared to suffer along under the status-quo through the required time to realize a Court Decision (there would likely be a series of appeals, regardless of which way the winds were turning) and can we realistically come up with the HUGE sums of money such an undertaking will most certainly consume? While I sincerely appreciate the offers here to help in this last regard, we would literally be looking at hundreds of thousands, if not millions, to effectively proceed. All factors we would have to clearly address before jumping into the fire methinks...

That said, I do believe that initiating a Legislation and Case Law review to determine the potential viability of such a Class Action Suit is warranted at this point. The findings of that would help immensely in deciding any future direction. And were the findings to be of sufficient strength in our favor, that, in itself, may form the lever we need to get DFO back to the drawing board. While perhaps a remote possibility, many cases are settled well before they enter the Court when one side carries an obvious and overbearing legal persuasion on its' side. Thus such an exercise would be well worth the effort methinks.

In the meantime, we must continue to keep the pressure on the Minister, the PM, our MP's & MLA's to the maximum extent we are able. This matter has not slid off the plate, and will not as long as we keep those letters rolling in to them. Keep it up Folks! They are aware we are ticked off, now let's let them know just how much!

Cheers,
Nog

 

[Rockfish]

It’s not your brain Nog, that last post by Ding Dong has a near schizophrenic quality to its pseudo legalese writing style.

 

[Islandgirl]

Nog,
Thanks for all your work.. If future funding is required to keep our right to fish, let us know! We WILL step forward!

 

[MILLERTIME]

Sheesh DingDong, I have enough trouble deciphering the contents of the various writs, decisions and papers I cited, and at times struggle some with that in regard to true meaning. But I have to admit, that post of yours above leaves me close to baffled.........

It's called Bafflegab Nog and no one is meant to understand it that's the whole idea. It's the primary weapon of the Troll and it's a shame because it's a waste of so much time trying to read it. Most forums would ban those who post this kind of garbage. I don't know what the moderators here are waiting for.

"Bafflegab [baf-uhl-gab] is a slang term referring to confusing or generally unintelligible jargon.
The word was defined by its inventor, Milton A Smith, as "multiloquence characterized by consummate interfusion of circumlocution or periphrasis, inscrutability, and other familiar manifestations of abstruse expatiation commonly utilized for promulgations implementing Procrustean determinations by governmental bodies." Thus defining "bafflegab" using bafflegab."

 

[Ding Dong!]

It's called Bafflegab Nog and no one is meant to understand it that's the whole idea. It's the primary weapon of the Troll and it's a shame because it's a waste of so much time trying to read it. Most forums would ban those who post this kind of garbage. I don't know what the moderators here are waiting for.

"Bafflegab [baf-uhl-gab] is a slang term referring to confusing or generally unintelligible jargon.
The word was defined by its inventor, Milton A Smith, as "multiloquence characterized by consummate interfusion of circumlocution or periphrasis, inscrutability, and other familiar manifestations of abstruse expatiation commonly utilized for promulgations implementing Procrustean determinations by governmental bodies." Thus defining "bafflegab" using bafflegab."

There are many people who read this forum who know exactly what I have written. I rarely reply to attacks, your post being one that I would consider as such.

 

[Lipripper]

I rarely reply to attacks.

If there was a fight would it look like.....?.........
[4Xkh6j7RMqk] http://www.youtube.com/watch?v=4Xkh6j7RMqk

Tape it if you guys got light sabers.......

 

[MILLERTIME]

There are many people who read this forum who know exactly what I have written. I rarely reply to attacks, your post being one that I would consider as such.

That's pretty lame, don't you have anymore "Bafflegab Garbage"?