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Sep 09 2010

more thought on the corporate ownership of fish in our ocean

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Here are a few more comments on my post.
According to the reasons for judgment

The general regulation of the fisheries, including their management and control, are under the exclusive authority of Parliament, pursuant to s. 91(12) of the Constitution Act, 1867,

[Right to Farm is]…an attempt to legislate on a matter outside of the province’s jurisdiction. As such, these subsections are an intrusion into the “unassailable core” of a federal power … (Right to Farm) Act, R.S.B.C. 1996, c. 131 are ultra vires the provincial Crown with respect to finfish and apply only to the cultivation of marine plants. I do not consider it appropriate or justified to attempt to parse out those subsections… in case they might apply in some way without encroaching upon an area of federal authority…

It seems to me that the Judge is saying that federal regulations must replace provincial regulations because BC has no authority to regulate fish Farms under the Constitution. Therefore, Right to Farm and by extension of that, the subsections that presume ownership of fish by the fish farms are unconstitutional. Only plants can be regulated by the Right to Farm Act.

The judge goes on to say that Nuisance protection

“does not require a decision as to the extent and nature of the property rights in the fish in question.”

In other words, her decision is about the constitutionality of Right to Farm.  She can’t say that fish farms or anyone else does or doesn’t own fish in the ocean, instead she only comments on the Constitutionality of the Province making regulations beyond their jurisdiction. She goes on to say:

The Supreme Court of Canada in The Ship Frederick Gerring Jr. v. The Queen (1896), 27 S.C.R. 271 at 284, considered whether or not a vessel was “fishing” in contravention of an international treaty and concluded:

“It is not necessary to determine at what particular point of time…did the fish become property of the catchers. I may have exclusive right of fishery, a property right to the fish of a particular stream, but whether I am or am not “fishing” does not mean and cannot depend upon any question as to my ownership.”

[69]In this case, a determination of whether or not the two subsections dealt with fisheries practices did not hinge upon a determination of property rights in the fish. As a result, it is unnecessary for me to decide whether the subject fish in the aquaculture facility of Marine Harvest Canada Inc. at Watson Cove, British Columbia are private property or otherwise, and I decline to do so.

It seems that this decision declares the entire Right to Farm Act “unconstitutional” so it’s important to recognize that the Right to Farm subsections on ownership of fish which the Judge declined to “parse out” are also unconstitutional. Certainly no one can claim that the above mentioned decision supports a Fish Farm’s right to own farmed fish in the ocean.

In my experience, Right to Farm is an Act that serves to keep the courts, our official Judges and the public from reviewing the reality of industrial farm practice. By gaining Right to Farm protection, farms that violate Federal, Civil and Criminal law do so with impunity and that is why the public must not let any further Right to Farm type legislation continue in fish farming regulation.

What gives any Provincial Regulatory body a right to make an end run around our legal system?. To pass off a “farming tribunal” with a direct economic interest in the maintenance of industrial farming as an impartial body capable of making decisions on farm practices that violate legislation that falls within the authority of the Federal Government? They can’t and they don’t.

Provincial Right to Farm Tribunals operate beyond Provincial jurisdiction by keeping all farm matters within their private system while some statute of limitations runs out and the Government empties the “deep pockets” of the complainants.

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