Quota dispute dismissed by appeal court

By Terry Roberts

Transcontinental Media

Three Northern Peninsula crab fishermen have lost their court case arguing crab quota cuts by DFO broke an agreement they had reached with then federal Fisheries minister Brian Tobin.

In a split decision the province’s Court of Appeal dismissed an action taken by 26 full-time crab fishermen against the federal government related to a long-running battle over quotas.

The fishermen have full-time crab licences for area 3K, off Newfoundland and Labrador’s northeast coast. They were alleging a contract reached between them and former Fisheries minister Brian Tobin in late 1994 was breached by the fisheries department six years later when crab quotas were lowered below a previously established threshold.

They also alleged Tobin was negligent for entering into the agreement without the authority to enforce it.

The fishermen were seeking an undisclosed amount of damages.

But in a judgment rendered Dec. 30, Justices Gale Welsh and Leo Barry of the Newfoundland Supreme Court of Appeal dismissed the statement of claim, saying there was no cause of action, and that such an action would hinder a federal minister’s discretion to set quotas.

Barry also dismissed any claim Tobin was negligent. “There is no basis to infer that the minister deceived the appellants, either innocently or intentionally,” Barry wrote.

The majority ruling upheld an earlier decision by an applications judge in Newfoundland Supreme Court. Then justice Clyde K. Wells was the lone dissenter. Wells held the view the applications judge made an error in ruling that the province’s Supreme Court did not have jurisdiction to try the statement of claim, and that the claim failed to disclose a cause of action.

The dispute dates back to the early 1990s during a major crisis in the fishing industry. The federal government had declared a moratorium on cod fishing and was looking for ways to aid those most affected by the closure — inshore fishermen.

The full-time crab fishermen say they entered into an agreement during the fall of 1994 that would allow them to maintain their quotas and parcel out any increases in the total allowable catch to inshore harvesters. The plaintiffs allege the minister committed 3K full-time crab fishermen would be protected if the quota decreased, under a so-called “ first in, last out” policy.

They also assert the minister pledged to not allow the quota for 3K full-time harvesters to drop below 3,100 tonnes, unless a reduction in crab stocks in areas fished by the fleet necessitated a quota reduction. The 3K fishermen allege the agreement made between them and the minister was, in fact, a contract, and that they based their financial planning and future fishing activities upon this agreement.

But in 2000, the Department of Fisheries and Oceans reduced the snow crab quota for the full-time 3K fishing fleet to 2,815 tonnes. The department continued to set quotas below the 3,100-tonne mark for each of the next five years, the fishermen allege.

The fishermen started action in 2005.

DFO agreed the quotas were changed, but said the decisions were within the exclusive discretion of the minister and therefore cannot be the subject of a contract. DFO also argued any proceeding which attacks the exercise of discretion by the minister must be taken in the federal court of Canada.