The right to fish 'does not exist,' Ottawa argues, but B.C. court rules class action lawsuit over geoduck clams can go ahead
A class action suit against the federal government can go ahead, despite Ottawa's claims that the right to fish "does not exist," a B.C. judge has ruled.
In a judgment issued last week and recently posted online, Justice Simon R. Coval was asked whether a lawsuit involving the harvesting of a bizarre-looking mollusk could go ahead, a suit the government claims is "bound to fail."
The issue involves 15 areas off the southern end of Haida Gwaii. Until 2019, these areas were used for commercial fishery of geoduck clams, but, in an attempt to protect a sensitive ecosystem, the government has since expropriated the area.
Those spots are now strictly protected.
Those behind the claim – James Austin, Darrell Thomas and two companies called Hideaway II Ventures Ltd. and Front Line Diving Ltd. – say they aren't challenging the government's right to protect such areas, but they're seeking compensation for future income loss if they can no longer harvest geoducks from those spots.
On their side, the class action lawsuit is an attempt to get back some of the money they say they would have earned through fishing the property.
On the federal government's side, the legal battle is a fight over a made-up right.
In his summary, Coval wrote that Ottawa argues "the claim seeks compensation for loss of an alleged right – the right to fish – that does not exist, and is a variation on a theme that has repeatedly failed in our courts."
The plaintiffs disagree, saying their fight falls under well-established common law principles.
It was not up to the B.C. judge to determine any compensation, but to look at whether the suit had enough merit to actually go to court.
Further details of what the judge looked at before making his decision can be read in his judgment, but ultimately Justice Coval decided the plaintiffs made enough of a case that they met the certification test.
This test for class action lawsuits includes the criteria that the claim raises common issues, and that the proceeding would be the preferable procedure to come to a fair and efficient resolution.
Geoducks (pronounced gooey-ducks) are a large species of clam that, when matured, resembles an elephant trunk sticking out of a large clamshell, Coval described.
Harvesting the species is complicated, and for reasons of conservation, commercial fishing is limited to 55 vessel-based licences and 550 quota blocks issued by Fisheries and Oceans Canada.
Participation in the program is expensive, Coval wrote. He said most licence holders have at least 10 quota blocks, and that the blocks cost $800,000 each, in addition to the $250,000 licence.
Equipment required for fishing and diving can cost as much as $1 million.
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