The Fishing Industry

• Author: Edgar Gold; Aldo Chircop; Hugh M. Kindred; William Moreira
• Pages: 1024-1064

1024

CHA PTER 2 4

THE FISHING INDUSTRY

A. INTRODUCTION

Fisheries law does not have speci f‌ic maritime legal principles that are

unique. Rather, the f‌ishery engages most aspects of law in some manner.

This engagement creates unique interaction in some are as which merits at-

tention in this text. A s is evident in the discussion below, both the federal

and provincial governments h ave a role in regulation of f‌isheries. Their

overlapping jurisdiction creates a t ension which in many cases has played

out in the courts. Sections B and D specif‌ically address how these chal-

lenges have been addressed i n the context of occupational health and safe-

ty within t he f‌ishery and in the aquaculture industry. In both case s, there

is some uncertainty over which level of government ha s the right to reg-

ulate. Aquaculture in particular has yet to be fully resolved in the courts.

Section C canvasse s the regulatory regime w ith respect to com-

mercial f‌ishing licences. The cur rent regulatory approach has left some

uncertainty over the st atus of commercial f‌ishing licences. In a f‌i shing

enterprise the pr imary asset is usually the licence and accordingly the

status of that licence is ver y important. Whether it is property and

subject to being used as collateral a ffects the availability of f‌inancing.

Similarly, the other rights which vest in t he licence holder determine

the degree to which a participant in the industry can rely upon the con-

tinued viability of t he f‌ishing enterprise. The law which h as developed

around these issues, often in the context of bankruptcy or creditor en-

forcement, is reviewed in this sect ion.

The Fishing Indust ry 1025

Finally, two areas of particul ar concern are addressed br ief‌ly in

Section E; searches and the pr ivacy status of a f‌ishing vessel and claim s

for economic loss arising from pollution. Both of these areas have par-

ticular interest to f‌ishers and the nuances of the law as it relates to t he

f‌ishery are considered.

This chapter cannot addres s the myriad of legal issues which arise

in the f‌ishery. No attempt is made to review issues relating to Aborig-

inal law as it relates to the f‌ishery. A substantial body of law ha s de-

veloped with respect to Aborig inal f‌ishing right s and it could not be

adequately considered in a brief chapter. Fisheries by thei r nature often

engage matters of international law but this chapter is constrai ned to

domestic legal issues. We also do not address t he recreational f‌ishery

which, for the most part, has not developed unique legal issues.

B. CONTEXT — PUBLIC INTER NATIONAL LAW

REL ATING TO FISHERIES

1) The Regulation of Fisheries

Marine f‌isherie s off both the west and east coast s of Canada have im-

mense historic import ance to Canada’s First Nations and to both small-

and large-scale commercial f‌i shing enterprises in Canada. Throughout

much of Canada’s history, including nearly the whole of the f‌irst cen-

tury following adoption in 1867 of the Canadia n constitution which

assigned regulation of sea coast and inland f‌isheries to the jurisdiction

of the federal Parliament,1 these marine resources were exploited by

Canadians and by non-Canadian distant-water f‌ishing vessels (general-

ly American and Asi an on the Pacif‌ic coast and European on the Atlan-

tic coast) without concern for the depletion or sustainability of those

resources. Beginn ing during the second half of t he twentieth century

and continuing to the present day, resource decline has focu sed the at-

tention of coastal states and t he international community on conser va-

tion and, increasingly, on regulation of the deepwater f‌ishing i ndustry.

In particular, there were in the second half of that century pa rallel but

very distinct in itiatives taken by Can ada and by international organ i-

zations (chief‌ly, the United Nations and its specialized agency the Food

and Agriculture Organization or FAO) to achieve that regulation.

1 Constitution Ac t, 1867 (UK), 30 & 31 Vict, c 3, s 91(12), reprinted in RSC 1985,

App II, No 5.

PART VII: SPECIAL ISSUES IN M ARITIME LAW1026

In the 1960s and early 1970s the principal internationa l f‌ishery

regulatory inst ruments to which Canada was party were, on the west

coast the Pacif‌ic Salmon Treaty,2 a bilateral agreement with the United

States, and on the east coast t he Northwest Atlantic Fisheries Conven-

tion,3 a multilateral agreement among states with f‌ishing interests in

that region which established the International Commis sion for the

Northwest At lantic Fishe ries (ICNAF), the role of which was principa l-

ly consultative among and advisor y to its member states. At the same

time, Canada, li ke many other coastal states, adopted legi slation claim-

ing sovereignty (including exclusive jurisdiction to manage f‌isheries)

within a terr itorial sea initi ally of three nautical mile s (nm) breadth,4

which was later extended to 12 nm.5 Coastal state domestic laws ap-

plicable within the na rrow scope of the territorial s eas, relative to the

vast areas and res ources of the oceans, created little if any conser vation

benef‌it for the overall stocks of mari ne species.

As a matter of Canada’s domestic law, confrontations principally

on the Atlantic coast wit h distant-water f‌ishing states caused Canada,

effective 1 January 1977 to declare extension of its f‌i shery management

zone to 200 nm,6 and to claim juri sdiction to regulate all elements of

the offshore f‌ishery, by its own f‌ishing vessels and those of other states,

within th at zone. As a matter of regional multilateral agreement w ith-

in the northwest Atlant ic states, there soon followed the Convention

on Future Multilateral Cooperation in the Northwest Atlantic Fisheries,7

which among other things created t he Northwest Atlantic Fisheries Or-

ganization (NAFO) having direct man agement and regulatory authori-

ty within t he area to which it applies8 and which, effectively, succeeded

and replaced ICNAF within that area. NAFO’s membership has since

expanded and it remain s an active and relatively successful manager of

f‌isheries to which its constating Convention applies.

As a matter involving the more global inter national community, the

United Nations convened the so-called Third UN Conference on the

2 Treaty Between the Governme nt of Canada and the Govern ment of the United

States concer ning Pacif‌ic Salmon, 28 Janua ry 1985, Can TS 1985 No 7, Annex

IV, amended May 1991. The Agreement was negotiate d for several years before

f‌inally bei ng concluded.

3 Internation al Convention for the Northwest Atlantic Fisher ies, 8 February 1949,

157 UNTS 157.

4 Territorial Sea and Fishing Zone s Act, SC 1964, c 22.

5 Act to Amend the Territori al Sea and Fishing Zones Act, SC 1969-70, c 68.

6 Fishing Zones of Canada (Zones 4 and 5) Order, CRC, c 1548.

7 24 October 1978, 1135 UNTS 369.

8 West of 42°W, north of 32°N, excluding the f‌i sheries management zones of

coastal state s.