National Post (National Edition)
Nova Scotia's clash of the lobstermen
Sunday gave us a startling spectacle in Ottawa. Early in the day, Gord Johns, the federal New Democrats' critic for fisheries, sent a letter to the Speaker of the House of Commons. Johns asked for an emergency debate on the violence and intimidation happening in Nova Scotia over the Sipekne'katik First Nation's outof-season lobster fishing. “Insufficient action has been taken by the federal government to ensure the safety of the community and its fishers,” Johns observed, “nor to deal with the underlying legal and constitutional issues, which are its root cause.”
Whether or not you agree with Johns's diagnosis, something has certainly gone badly awry in an area of unquestioned federal responsibility. If you doubted this, you only had to wait a few hours. That is how long it took for four Liberal ministers to issue their own letter informing the Speaker that they would seek leave for an emergency debate. They, the government, want the House to discuss “extremely disturbing acts of violence in Nova Scotia related to the Mi'kmaq constitutionally protected treaty right to fish for a moderate livelihood.”
Do they expect that someone will come up with a solution on the floor of the House to a problem that it is their responsibility to solve? The Supreme Court's decision in the Marshall case, which affirmed the historic rights of Indigenous-Canadians to earn a livelihood from fishing, is now more than 20 years old. The Liberal approach to the “moderate livelihood” right has been to assign fairly large quantities of lucrative lobster licenses to various Mi'kmaq bands, to be exercised by those bands communally according to license conditions that are designed to preserve the overall health of the resource.
But the fisheries ministry has been reluctant to apply a hard definition of “moderate livelihood,” which it would then have to defend in court, and it refuses to do so now. The actual fisheries minister, whose signature is on the Liberals' plea for an emergency debate, is in talks with the Sipekne'katik, which ceremoniously issued its own lobster licenses in September, and with other bands that intend to follow its example.
Some of the discussion of the rioting — and crimes against Indigenous property, which have not been fashionably redefined as nonviolent — emphasizes the small size of the Sipekne'katik effort. It involves just 11 licences, and these carry a lower trap limit than the typical license of federal issue. But the Sipekne'katik wildcat lobster fishery is explicitly a data-gathering experiment. The point is to defy the federal licensing scheme, and while everyone who is not a white Nova Scotia lobsterman seems to have decided that the Sipekne'katik project is sincere and sensible, the incentives in a tragedy-of-the-commons situation are obvious. And obviously dangerous.
If you held a federal licence that imposed seasonal limits on your own livelihood, you would not want to compete with rivals who can take lobster year-round. If you were Sipekne'katik, and you heard the settler fishermen complaining about the declining Nova Scotia lobster catch, as they do incessantly, you might decide to extract as much value as you could from the lobster before they go the way of the Newfoundland cod.
It's a very Canadian situation. The Supreme Court, in making the Marshall decision, defined a treaty obligation that has a rather absolute, paramount character (within the bounds of the adjective “moderate”). If it turns out that federally licensed lobster fishing is unsustainable when combined with licit Aboriginal use of the resource, the Mi'kmaq's “moderate livelihood” entitlements must come at the head of the queue for lobster quota.
And why not? After all, they were there first, and the recognition of their rights is not consciously intended to shut anyone else out. But that will be small comfort if the federal government loses its ability to steward the lobster fishery because licences are being issued in unlimited numbers by rival authorities.
Economic study of the tragedy of the commons teaches us that the depletion of a commonly held resource is not inevitable. But non-state solutions to the tragedy are most successful when the resource is in the hands of a single community with the social power to enforce good stewardship practices. If this were the year 1620 we could solve the problem by assigning ultimate ownership of lobster licences to the Mi'kmaq. Short of that, a government has to run things, and the one in Ottawa is the only choice on offer.
This is a problem for those who are defending the Sipekne'katik rogue licensing as the exercise of a treaty right — which is not to excuse violence, or in particular, arson. If the RCMP ever gets off its duffs and finds those responsible for burning down lobster storage facilities, it can find the very deepest part of Lobster Fishing Area 34 and drop them in it, and I'll donate the cinder blocks.
But thanks to the Supreme Court's insistence that the right is limited to a “moderate” lobster catch — and maybe that limit is itself questionable! — the legality of the Sipekne'katik fishery is a factual question, not to be settled by either first principles or by emotional impulse.
Meanwhile, the settler fishermen and the Aboriginal claimants are being dealt with separately by the fisheries ministry, which is a piece of policy non-design that could almost be specifically intended to impede the development of a single, trusted post-Marshall moral authority over the common resource. It could be that the Liberal soft-'n'-secretive approach deserved to be considered an overall success right up until one band decided not to play along. But Canadian governments have had 20 years to come up with something more transparent and credible.
RIGHT IS LIMITED TO A `MODERATE' CATCH, SAYS THE SUPREME COURT.