Control of the Commons

Wild marine fish are public resources managed by DFO on Canadians' behalf, yet catch shares represent a form of private property rights.

How then does the Canadian legal system manage the balance between private and public goods? And what trickle-down effects could we see from this precedent?

According to Canadian courts, a fishing licence is a fisherman's private property, but the Minister of Fisheries and Oceans still has final say over the licence's use – he or she may change or revoke access without compensation to the fisherman.

The Minister gives and the Minister... can take away.

- Saulnier v Royal Bank, 2008

Similarly, owning quota does not mean that you own the fish in the water. Instead, quota gives you the right to harvest from the public resource.

This is meant to give fishermen incentive to protect fish stocks over the long term, but it can have other implications as well:

Commercial fishermen depend on the stability of the industry in order to make informed investment and business decisions.

Many have incurred substantial debt, confident that they will have access to a steady allocation of the TAC. Without a doubt, reducing their portion of the TAC without a market based method of compensation will negatively impact the livelihood of many commercial fishermen.

- Malcolm v Canada, 2013

Market-based management also raises a question of permanence - what if DFO wanted to someday move away from catch shares? Losing some fishery access does not require compensation, but what if catch shares no longer granted any access at all?

As long as the Minister acts in the public interest and in support of the Fisheries Act, fishermen have no claim to legal review over any of the Minister's decisions - even if the Minister revoked all quota rights.

It is irrelevant who catches the fish

- Malcolm v Canada, 2013

The concern is that that fish is basically now an owned component of that corporation, so it will be used – like the fishery will be kind of recreated according to the needs of that corporation.

If the composition of the fleet and its socioeconomic impacts have been deemed "irrelevant," small-scale fishermen with few resources may not be heard as the recreational and large-scale commercial sectors pressure the Minister to adopt policies that favour their own profit margins.

Through a series of court decisions, the legal control of the commons has been fairly well defined: the Minister has final word on commercial fisheries access. In practice, however, the rights of commercial licences and quotas are not so clear-cut - they are less than full ownership, but more than mere privileges.

By imposing few restrictions on quota holdings and sales, DFO has given these quotas quasi-property rights: property in practice, but with no legal standing.

Thus, commercial fisheries operate in a grey area. While the Minister has the right to withdraw or reallocate quota without compensation, quasi-property rights give fishermen a sense of ownership.

So what if DFO were to one day reverse course and move the fishery away from a catch share management system? According to the law, fishermen who have made massive investments in increasingly expensive quotas would have no right to compensation. And with the huge amount of capital already invested in fisheries quotas, a quota buyback program would be financially impossible with DFO's current funding.

Small-scale commercial fishermen and coastal communities are not only being squeezed out of the industry by loss of access, they are also losing their political ability to slow or reverse the process.

Could Salmon be Next?

DFO has been exploring ITQ management in BC's salmon fisheries since 2003.

Salmon is the most culturally important fish species on the west coast. Changing access to this fishery would have major implications for individuals and communities. With such complex ecological and cultural barriers to overcome, the proposal has met with strong resistance from active fishermen.

Salmon runs and harvests are notoriously unpredictable. DFO issues pre-season estimates, which are then revised on the basis of in-season population sampling and modeling. These revisions can extend the season for additional fishing or abruptly close the fishery.

While larger harvests are welcome news for fishermen, they would pose a problem under an ITQ system: individuals would find it difficult to quickly acquire new quota, especially in a highly competitive market.

On the other hand, a significantly smaller harvest would ruin many harvesters, particularly if they had to make large investments to purchase quota so they could participate, only to discover they could no longer access that amount of fish.

I really don't like quotas.

I would rather that the salmon fishery stay away from quotas because we just lose everything. It gets rid of the small boat operators.

Slippery Salmon

Catch shares require a degree of certainty surrounding annual harvests; fishermen only have a chance of financial success when they have some guarantee that they can realize the value of their investments.

INTERACTIVE: Use the buttons below to explore the differences for each of the three salmon fishing gear types.

Pre-season estimated harvest
Actual harvest
Harvest fell below pre-season estimates
Harvest exceeded pre-season estimates

Chinook

Chum

Coho

Pink

Sockeye

Based on the large differences between pre-season estimates and in-season adjustments, BC's salmon fisheries appear to be too unpredictable for an effective, equitable catch share system to be implemented – the statistics suggest that it is doomed to failure before it starts.

Hope on the Horizon

Despite the apparently gloomy outlook for BC’s commercial fisheries,
there remains a great deal of hope among fishermen and fishing communities – and rightfully so.

Fishing is one of BC's most environmentally sustainable resource-based industries

Although populations may fluctuate from year to year, the vast majority of BC's fish stocks are both abundant and resilient. In 2013, BC fishermen caught nearly 100 species of marine plants and animals from some of the most pristine waters in the world.

The government has been spending my tax money to publish what a sunset industry fishing is. It's a bunch of horse shit.

It is one of the few sustainable things we have.

They should be publishing stuff to generate optimism. Because after a record of severe mistakes, intensive fishing in the '50s, '60s and '70s, 90% of the salmon runs are fine. So if it can’t be damaged by the kind of bungling we’ve already had, then there is a huge potential and it should be run as a business for the country.

There's huge market potential in getting this stuff in front of the people.

It's a real good, healthy, clean food source.

There is high demand for seafood

Half-joking, one of our interviewees pointed out, "In my 58 years of living, I can assure you I’ve never seen food go out of style. A lot of things come and go, but one thing humans never stop doing is eating."

BC's wild fisheries help to answer that need, consistently catching hundreds of millions of meals' worth of fish each year.

Fishing supports regional food security

Remote areas don't always have access to affordable fresh food. Fishing can ensure that rural communities have access to locally-produced food sources.

We are not managing fisheries here with ITQs, we are managing people.

We are managing the amount of food that goes on somebody else's table.

When you have ITQ fisheries that are consolidating into less and less hands, I don’t think it takes much of a mathematician to realize that that shrinkage works its way down the line in that economy.

Commercial fishing is vital to economies in coastal communities

Commercial fishing is a cornerstone of local economies and supports a strong web of other intangible, cultural values. It represents a key opportunity for small coastal communities to generate wealth and wellbeing on many levels.

We are at a key decision point for BC's fisheries. What will our future fisheries look like?

What's more, BC's fishing industry is a microcosm – a proxy for some of the most important political and cultural debates currently on the national stage: Who should benefit from Canada's natural resources? Should we structure our economies so rural and coastal communities have a role to play? Do we make the rules for a few large corporations or many smaller enterprises?

What do our answers say about us as Canadians?

Next Section: In Summary

Final thoughts, downloads, and more.