Lawrence Solomon
National Post
September 26, 2000

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.