Sent: Wednesday, October 04, 2000
National Post   
September 26/2000 
by Lawrence Solomon 


Urban Renaissance in the News
Lobster trap    

Phony conservation claims and sharp dealing by the 
federal fisheries minister foil justice for the natives of Burnt Church. 

Herb Dhaliwal, Federal Fisheries Minister, regulates the Atlantic 
lobster fishery to conserve that most valued of Maritime resources 
-- employment insurance. Each fishery licence that he dispenses 
not only carries the right to harvest the sea but also the right to 
land special payments called "EI fishing benefits." This second 
catch -- the only benefits that EI provides to any self-employed 
workers in Canada -- provides fishermen with up to $413 a week 
when they're not working. Fishermen can qualify for benefits by 
earning as little as $2,500, for as short a period as one week. 
Because fishermen often have two fishing seasons, Mr. 
Dhaliwal's accommodating regulatory system provides a second 
EI season. EI blesses no other workers with two collection 
periods per year, and with the right to qualify for benefits based 
on income earned, as opposed to hours employed. In return, 
Atlantic Canadians bless federal Liberals at election time. 

Employment insurance complements Mr. Dhaliwal's chief political 
function -- to conserve and create jobs in the fishing industry. In 
the lobster fishery, he accomplishes this feat through short fishing 
seasons, which he also rotates throughout the region to keep 
lobster in continual supply. In southern New Brunswick, for 
example, lobster fishing is legal only in the fall; in northern New 
Brunswick, where the Burnt Church natives have been defying Mr. 
Dhaliwal's directives, lobster fishing is legal only in the spring. 
Lobster is legally fished somewhere in Atlantic Canada at almost 
any time of the year. 

Mr. Dhaliwal's government also redistributes fishing jobs and EI 
fishing benefits from one community to another. In 1990, the 
government allowed Burnt Church 2,250 off- season lobster traps 
in what is called a non-commercial "food fishery." In 1996, to 
leave more lobsters for white fishermen, it reduced their number 
of off-season traps to 1,500. In 1997, the number became 800 
and in 1999, 600. In 2000, it became a minuscule 40. Last week, 
with a federal election in the offing and with white fishermen 
threatening to take the law into their own hands, Mr. Dhaliwal 
closed Burnt Church's off-season food fishery. In doing so, he 
cited the need to conserve lobster stocks. 

Last year, the Supreme Court -- in the latest in an impressive 
string of victories for Canada's native people -- ruled that 240 
years ago the Crown had given the Mi'kmaq bands in eastern 
Canada rights to a moderate income from fishing and hunting. 
Our Constitution in 1982 elevated that right to a constitutionally 
protected property right. "A deal is a deal," the Supreme Court 
stated unambiguously. For natives, fishing is a right; for others, 
only a privilege. The government may regulate the fishery, it 
explained, but only for impeccably legitimate reasons, such as 
conservation, and only after appropriate consultation. Even then, 
the government must go no further than necessary and it must 
seek to accommodate the natives' property rights, for example by 
adopting "different techniques of conservation and management." 
The Supreme Court formally assumes our government 
representatives acted with integrity at all times, never 
"sharp-dealing." To negotiate with natives insincerely, the 
Supreme Court has repeatedly ruled, would be beneath "the 
honour and the dignity of the Crown." 

Can Mr. Dhaliwal legitimately claim that the closed season 
system is the only effective way to conserve and manage 
Canada's lobster stocks? "Many, perhaps most jurisdictions, 
don't have a closed lobster season, and, apart from Canada, no 
jurisdiction in the world has a closed lobster season for clawed 
lobsters, such as we have in the North Atlantic," states Robert 
Bayer, professor of biosystem science and executive director of 
The Lobster Institute at the University of Maine, the world's leading 
lobster research body. 

Having an open lobster fishing season doesn't prevent U.S. 
regulations from being far more stringent than Canada's. 
Americans can't catch lobsters under 1 1/4 pounds; Canadians 
can catch lobsters as small as one-half pound, far below the size 
at which most females can reproduce. While U.S. stocks have 
stayed steady, our employment-oriented fishery regulations have 
seen our stocks drop over the last decade, leading some to fear 
our lobsters may be overfished, much as our cod and salmon 
were. The U.S. system, however, can't compare to some New 
Zealand and Australian jurisdictions in promoting conservation 
practices. There, because fishermen have superior property 
rights, they let lobsters grow to become sizeable adults without 
fear that others will steal their catch. That type of successful 
property-rights-based regulatory approach is precisely what 
Canada's native people seek to protect themselves and their lobsters. 

As the Supreme Court explains, the dispute over fishing rights is 
akin to interpreting a contract entered into between the 
government and the native bands. The dispute has been inflamed 
into a political crisis by the white fishermen. Two weeks after the 
Supreme Court's decision, they expressed their outrage by 
destroying $250,000 worth of native property, as well as the 
property of those who did business with natives. The white 
fishermen's refusal to accept the law of the land, and the 
government's fear that it could lose the Maritimes -- and its 
majority government -- if it alienates the white vote, explains the 
fishery department's sudden concern for conservation. 

After the next election, the government may decide to negotiate 
honestly with the Mi'kmaq, resolving the dispute outside the 
courts, as the Supreme Court prefers. If the negotiations fail, the 
parties will be back before the court, which will then judge whether 
the government imposed legitimate regulations. 

The Supreme Court might decide that re-electing Liberals is a 
legitimate reason to regulate. Or that the government was right to 
succumb to blackmail from white fishermen. Or that the lobster 
stocks can only be protected by the government's sub-standard 
closed-season system. 

Or the Supreme Court may decide -- as it has so many times in 
the past -- that Canada has no room for sharp- dealing by the 
likes of Mr. Dhaliwal. It will then rule -- as it did in the case of 
Donald Marshall, whom the government also accused of illegally 
fishing off-season -- that the Burnt Church natives, far from acting 
illegally, were only exercising their legitimate property rights.