finally got the thing stop reporting a licensing issue.
I had to upgrade DFM/Ops Mgr/OnCommand Unified Manager to 5.3, the Management console to 3.3 and then install separately the plugin for 8.2 from here:
http://support.netapp.com/NOW/download/software/ontap/8.2/dfm_plugin.shtml
Even though the release notes state that 5.3 now supports the licensing changes to ONTAP 8.2 it didn't. Once the plugin was installed and I refreshed the system via Ops Mgr the Management console correctly reported the 8.2 systems' licensing. However it failed on something else, differing disk types ATA to FSAS.
In the end I pre-created the required vols on target system, didn't restrict them and then ran:
vfiler migrate -l root:<p/w> -c secure <source vfiler>@<source filer>
this worked even with an open file and a script constantly writing to a 3GB file @ 120MB/s so as long as the NFS timeouts are long enough (we're NFS shop) there's just a pause rather than and down time