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 email@example.com 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)