Calwell Fishing Ltd. v. Canada

In Fish Cases, Judicial Review/Crown Liability on (Updated )

This case was brought by a group of fish packer owners whose businesses declined to the point where they were no longer economically viable. They sought a declaration based upon the common law doctrine of "taking". They argued that the state cannot take property without compensation except where such taking is supported by clear unambiguous statutory language. They submitted that a series of regulatory changes from the early 1980s up to the 2000s, including the buy-back of licences, fleet reduction, and commencement and enhancement of the Aboriginal Fisheries strategy eliminated available work for their packers. The Plaintiffs noted that during the period in question a number of fishing vessel owners and licence holders received compensation from the Government and question why no such compensation was offered to packers.

The court identified the elements of a "taking" to be as follows:

1)The plaintiff’s property was taken by the defendant;
2) the same property was acquired by the defendant; and
3) the Defendant did not meet its duty to compensate.

With respect to the first element, the plaintiff based its argument largely upon the public right to access to fish as guaranteed by the Magna Carta. In rejecting the plaintiff’s argument the the Court noted that Magna Carta rights can be taken away by competent legislation. It noted that licencing is a tool available to Minister under the Fisheries Act that allows the Minister to restrict entry into commercial fisheries and limit fishing effort. It said "regulations to not remove public access. They provide a ‘new order’ . . . " (para. 187).

The court the court also reviewed a great deal of evidence and concluded that although some of the regulatory actions such as reducing the total allowable catch of salmon and mandatory herring pooling negatively impacted the packing business, there were a number of other factors which had an even greater impact upon the packing business such as direct access to First Nations mandated by the Sparrow decision, technological advances such as fishing vessels with insulated holds with on board refrigeration systems, more modern larger packers, direct delivery premiums offered by fish processors, and fluctuating fish prices. Accordingly, the court concluded that the plaintiffs had not established "on a balance of probabilities, that the loss of their packing business was a direct result of government action." Since this was fatal to the claim, the court did not address the other elements of a "taking".

Editor’s note: This case gives a good history of fisheries management policies over the last 20 years or so and discusses some of the challenges of balancing public rights and private interests.