Advice to Agisters from a Fellow Agister
[A Vancouver Island agister describes how his own herdshare operates, a model which addresses both the Ministry of Health's "care and control policy" and Justice Tetley's requirements in his 2011 court ruling for "legitimate herdshares" (see below). Herdshares interesting in transitioning to this model can contact Steve at firstname.lastname@example.org for guidance. ]
1. Owner Management.
The Livestock Owners Group MUST be run and managed by the owners of the livestock, not by the farmer. To that end they need to form themselves into some form of association / group / society (it's not necessary to incorporate, but some financial institutions may require it to set up a bank account.) It is important that they are a group of private individuals who have come together for the purposes of jointly owning dairy livestock, have formed a group, and elected some of their members to run the group via a management committee or other similar arrangement. The group needs to develop its own Purchase and Ownership agreement between each owner and the Management Committee.
2. Transfer of Control.
The farmer needs to transfer ALL control of ownership of the herd to the group and have the members of the committee take full responsibility for handling owners who join and leave the group. The farmer can have NOTHING to do with this. If he/she doesn't do this they are effectively still in control of the animals and a court will regard this as proof of ownership by the farmer. A simple test is to ask yourself: What would you do if the group come to you one day and said, “Dear Farmer, we don't like the service you are providing us and we've found another farmer to look after our cows!”? Would you try to stop them, or would you acknowledge that they own the cows and therefore it is their right to take them somewhere else? This is what true ownership looks like.
3. Financial Control.
The group, via its committee, must handle all money transactions related to ownership and monthly fees. They also will need to come up with a formal bill of sale showing who owns which animals and how much they have paid. Some credit unions will open bank accounts for community groups without them being registered.
4. Contracting an Agister's Services.
Once the group is set up, it will then contract a farmer to provide agistment services with each individual (NOT the committee) entering into a separate (second) agreement with the Agister to look after their animal(s). The Ownership agreement and the Agistment Service agreements must be separate entities.
5. A fixed monthly Fee for Services.
The farmer should establish a fixed monthly fee that they charge the group for looking after the animals. The amount of work done by the farmer is related to the number of animals regardless of how many people may own each one. The fee is based on the work done, not the number of owners per animal. The group then set its own monthly fee for each member, collects the revenue, and pays the farmer from that income. The farmer should invoice them for their services each month.
6. Defining Ownership.
Perhaps most importantly, the group needs to develop a very clear definition of what being a livestock owner entails. It is NOT like owning a cell phone or car or kitchen appliance. Just having a Bill of Sale saying that they have bought part of a goat is not sufficient and every court case has proved this. Think of it more along the lines of owning a dog or a cat and then consider whether it would be realistic for a dog owner to put their pet into a kennel and never show any interest in it, never walk it or feed it or groom it, merely paying the kennel a monthly fee. That's not genuine ownership.
Furthermore, once the group has defined ownership, each owner needs to demonstrate their ownership by getting involved in tangible ways. They need to show an interest in their animals, they need to understand how their animals are handled, how the milk is handled, the bacteriological aspect of raw milk so they can make an informed decision about drinking the raw milk based on an understanding of the potential risks, and they need to be able to identify the animals that they own. They also need to spend time at the farm on a regular basis showing that they care for their animal(s). If they aren't able to do these things then they are buying milk.
Justice Tetley's Ruling:
Justice Peter Tetley's "requirements for legitimate herdshares" (extracted and condensed from R. v. Schmidt, 2011 ONCJ 482). The farmer was convicted for selling raw milk because the following elements were missing from his operations:
- Legal title transferred to livestock co-owners via a formal contract of purchase and sale executed by vendor and purchaser.
- Members involved in: the purchase, sale, and replacement of the cows in the herd; management of the herd; and decision-making regarding distribution of the resultant milk product
B.C. Ministry of Health, "Care and Control" policy (current as of 2005):
“It is Ministry [of Health] policy to consider that raw milk is not sold or supplied if it is consumed by a person who owns and has direct care and control of the cow - in other words, a person who knows how the animal and the raw milk is being handled. In these circumstances, the person who consumes the raw milk is considered to have adequate information to assess the risks associated with that particular raw milk.” - Ron Duffell, A/Executive Director of Health Protection, September 2005 (note that in 2008 a health authority inspector stated to a herdshare member that health authorities are not required to follow Ministry of Health policy)
10 thoughts on “A Model for a Legitimate Livestock Owners Group”
good information, thank you. I think it needs to be very clear that this is the opinion of an individual, not the organization as a whole. I agree with most of the points made. However, depending on the size of the herdshare, it is not necessarily desirable or even possible to have every member involved at the farm. Informed decisions can be made without visiting the farm and the animals on a regular basis. A cow is not a dog or a pet, you can think of her as an investment, more like a race horse that you may be part owner of ( for the purpose of sharing the winnings, not to go and pet it.)
Thank you for the good article. We adopted this model in our own herdshare and it is working well. Our members are organized and are making decisions about our animals.
We held an all-member meeting to discuss and create policy on “care and control”. We decided that our members show ‘care and control’ by: Having access to and understand our RAMP and SSOP, and also our test results. Everyone has the chance to participate in email decision-making about buying new animals and we share the cost. When members join, they tour the farm, meet the animals, and see how the milking procedure works. They get all their questions answered. And yes if need be, we can move our animals to another farm if we become dissatisfied with the service.
Some members choose to be involved in other ways: A few volunteer on the farm. Others are committee members. Others show their support and involvement in other ways such as words of encouragement and appreciation for the agister. All are good.
Hello Jo and Bob.
Jo, three thoughts on your comments:
1) Yes, you are right, the model described above has not, as far as I’m aware, been tested in court (yet) and therefore is only an opinion. It is, however, an opinion based on a thorough study and understanding of the various laws and, especially, the court cases involving raw milk farmers. The common denominator in all the court cases (which every farmer has lost, to date) has been that the cows were not genuinely owned by anyone other than the farmer. Therefore the challenge is to come up with your own very well-defined and realistic model of ownership, and to make sure that it is rigorously implemented. The authorities will look closely at what you are DOING, not what you SAY you are doing. If the actions of the (supposed) owners do not look like genuine ownership to the judge, then you will lose in court.
2) I think your analogy with owning a race horse (as an investment) will not convince a judge that you are exercising any genuine care and control. Just my opinion but, honestly, that looks to me like an ‘excuse’ to avoid taking on the responsibilities of care and control and I believe that a study of the court cases supports my position.
3) I’m not suggesting that everyone should be involved at the farm. I agree that it would actually create far too much work for the farmer to have people looking for things to do all the time. But showing interest in your cows – by visiting them for a few minutes on a regular basis – and getting involved in other ways are, IMO, vitally important.
Bob, glad to hear that the model is working well with your herdshare.
My only comment is to be sure that EVERYONE in the group is genuinely exercising care and control as per your definition. It only takes one person in the group to be ‘buying milk’ and everything you have will be put in jeopardy. In our group we have a protocol for dealing with people who fail to take on their responsibilities. It is a very gentle process involving a series to ‘taps-on-the-shoulder’ but if a person is obviously just buying milk they will, eventually, by asked to leave. Keep in mind that not only does the agister stand to lose everything, but each of the owners will lose their source of milk if you ‘carry’ people who just want to buy milk. Is that reasonable?
If you haven’t already done so, you might want to consider developing a similar protocol. In a court case the existence of such a process, and evidence that you have removed people who are obviously just buying milk, will help to reinforce the authenticity of your ownership and efforts to be legal.
holy shit. Are you kidding me, there’s got to be another model.
Unfortunately, Joszef, under current law in Canada, there appears to be no other way at this time. The “R. v. Schmidt (2011”) court case in Ontario was lost because the milk was deemed to have been sold. Justice Tetley said they weren’t acting like livestock owners, weren’t involved in the purchase-and-sale of the livestock, and didn’t have a say in the distribution system. And on top of it, the contract didn’t actually transfer ownership of the animals to the consumer.
This protects us against charges of “selling raw milk”. But, this still does not protect us against enforcement actions by health authority inspectors under BC’s Health Hazards Regulation. The only thing that will do that is getting this regulation changed. Please contact your MLA and ask them to support legalizing herdshares. Ask your MLA to ask Health Minister Adrian Dix to please amend the Health Hazards Regulation to remove raw milk as being a “health hazard.”
Where the LOG has an immediate value though regarding the Health Hazard Reg is that the consumers are active-and-organized livestock owners. If a farm is hit by a cease-and-desist order, the LOG can file a “Request for Reconsideration” under Section 43 of the Public Health Act. If this is denied, then they can file a “Request for Review” under Section 44. If this denied, then they can launch their own legal action. As an owner group, they also could have contingency plans in place to move their livestock to another farm. There are options.
Joszef, there are currently three herdshares that I’m aware of that have organized Livestock Owner Groups, so this idea is spreading. Until we get raw milk laws changed in BC, members organizing may be the best way to build resilience. As well though, proving to a health inspector that you are not “causing a health hazard” may help prevent a return visit. Start testing milk samples. Get your herd tested to ensure they are free of Brucella and TB. And write up your on-farm food safety plans, such as a RAMP and SSOP (see the RAWMI website).
Start with inviting all your members together for a meeting. Tell them they can no longer be buying raw milk, that they have to truly own the animals. They need to choose a group name, elect a steering committee, and start making decision about their animals (in our own herdshare, these decisions – for example, purchase of a new cow – are normally made via email vote). That can start the ball rolling. Steve here and other agisters who have gone through this process and who are reading here can advise. (And … different groups can operate in different ways, i.e. none of the members in our own herdshare work on the farm – we hired the agister to do that for us, but we have all toured the farm, seen the milking facilities, and review test results).
Great. Thanks all for your input, we are still in the beginning phases
of our operation and will continue to need help and support.
is there a way to keep current on BC legislation around status of
removing raw milk as a “health hazard”,
In Alberta, Alberta Milk will shut us down if we hire an agister. I Have it in writing. They will allow raw milk to be brought home even if the cows are in another municipality but this did conflict with a member on the provincial milk board. The Director stated not to try delivery to a location for member pick up because this is distribution. A MP wrote to me to buy a cow. The Hutterites are allowed and not every family member takes care of the cows. I would guess that some Dairy Farmers of Canada are leasing some land. They also have hired hands but the employee can not take the milk home. Been tried and got penalized 2 days, milk had to be discarded. Milk must be tested. One farmer’s milk had to be dumped, ($800.000.00) because feed was not to be feed to Dairy Cattle. A person can have 50 litres of milk daily from a cow that does not have the milk go to a processor.