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Newfoundland and Labrador 1994 crab quota agreement not a contract: judge

Crab pots sit on the dock near a fishing boat in Petty Harbour in this Telegram file photo.
Crab pots sit on the dock near a fishing boat in Petty Harbour in this Telegram file photo.

A judge’s decision last week brought an end to a nearly 13-year-old court case between a group of Newfoundland and Labrador snow crab fishermen and the federal government.

The Supreme Court of Newfoundland and Labrador ruled in favour of the federal government saying that there was no “contract” in place between the group of fishermen and the Department of Fisheries and Oceans following an agreement on quotas in 1994.

The background of the case is that in the fall of 1994, two years after the moratorium was placed upon the northern cod stocks that crippled the fishing industry in the province, fishermen were struggling to keep their boats on the water.

The main lifeline was snow crab because those stocks had increased dramatically in the absence of cod.

The federal fisheries minister at the time was Brian Tobin. It was a busy time for Tobin. He was in the midst of the so-called turbot war going after vessels violating rules on the high seas, getting ready to implement the 1995 TAGS program (The Atlantic Groundfish Strategy) and trying to deal with a changing and struggling industry.

During his department’s consultations with industry groups in the province, Tobin met with a group of full-time crab fishermen in fishing division 3K that encompasses the northeast coast of the island and southern Labrador.

Tobin wanted to spread any increases in crab quota to other inshore fishermen struggling with the loss of the cod resource and the impact of the moratorium.

The meetings resulted in the group of 3K full-time crab fishermen agreeing that they would not pursue any increases in the overall total allowable catch (TAC) of crab as long as their own crab quota would not be reduced below their long-term level of 3,100 tonnes.

All was good until the year 2000.

After 2000, the 3K full-time fishermen’s crab quota was reduced by the Department of Fisheries and Oceans — then under minister Herb Dhaliwal — to under the agreed amount of 3,100 tonnes. The fishermen became upset and alleged that the move amounted to a breach of contract they had made with Tobin in 1994.

The fishermen — from various communities adjacent to division 3K — commenced a court action on April 7, 2006 claiming cumulative losses in excess of $3 million.

The fishermen claimed the reduction in quota allocations was not in accord with what they believed were contractual commitments by the department under Tobin.

The federal government, meanwhile, countered that the 1994 talks did not form the basis of a contract, and that the decisions on quotas are within the exclusive discretion of the Minister of Fisheries and Oceans and thus, cannot be subject of a contract.

After years making its way through the court system, a hearing was held last June and July.

That hearing was based upon an application made by the federal government to the Newfoundland and Labrador Supreme Court for a summary trial seeking dismissal of the fishermen’s 1994 court action.

The evidence had been presented over the course of four days.

Justice Alphonsus E. Faour brought down his ruling last week.

“In considering whether the evidence supported the components required in establishing the existence of a contract between the parties, the analysis reveals the elements do not exist,” Faour stated. “The application is granted and the (fishermen’s) action is dismissed.”

glen.whiffen@thetelegram.com

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