The Marshall Decision, disinformation and the body size of lobsters
"It was a backroom deal" ... and here it is

Tony Seed at The Lord Nelson Hotel
SHUNPIKING, December, 1999 / January, 2000
Volume 4, Number 31

"IT WAS A BACKROOM DEAL," explained Wayne Spinney. He was explicit as to how the Department of Fisheries and Oceans (DFO) could arbitrarily put tough new measures in place affecting lobster catch size in the wake of the Marshall Decision of the Supreme Court of Canada affecting Native fishing rights -- despite strenuous objections by lobstermen from southwestern Nova Scotia and New Brunswick.

He was clear as a bell. Not one reporter asked him what he meant. Not one reporter asked what seemed to me the logical question: "between whom?"

It was a defining moment during the two days I spent at the recent two hearings of the Standing Committee on Fisheries and Oceans of the House of Commons, which was touring the Maritime provinces seeking feedback on the Marshall Decision.

After giving his brief, Spinney walked out of the Imperial Ballroom at the Lord Nelson Hotel straight into a "media scrum" of some five or six reporters and two TV cameras. He is vice-president of the West Nova Fishermen's Association, which openly mounted a high-priced legal challenge against the Marshall Decision, and was involved in "demonstrations" over Native fishers in the Yarmouth area. Over the past two months he has been one of the three most-often quoted spokesmen in the media of the "fishing industry", along with Denny Morrow and Don Cunningham; neither are fishermen.

The very next witness, Jeff Brownstein, from Cape Breton's Little Harbour and president of Local 6, Maritime Fishermen's Union, made the same walk. No one stopped him. No media, no TV, no scrum.

We have no conflict, no flashpoints, Brownstein observed wryly. "We've been working with the Natives for a number of years, and philosophically we see eye-to-eye on a number of points."

The media scrum works much like that -- lemming-like. Leeches on some, avoids other. It seems to do strange things to reporters. They forget to think for themselves. In these scrums, which one often sees on TV broadcasts from Parliament Hill or elections, the media often works out the story, the line, to broadcast to the public -- one of the mechanisms through which misinformation is spread. They also make a decision as to what topics to avoid and censure.

"You noticed," Spinney replied later when I observed how his comments about the "backroom deal" seemed to have fallen on deaf ears. It was a stunning omission.

No questions are being asked, no lies and hidden agendas uncovered today, which seems to me, along with challenging authority, part of a journalist's job. Perhaps, I asked, there is another agenda at work. And if so, who is setting it.

Spinney is high profile this fall, though it probably has nothing to do with the man, his personality or his experience, which seems to be considerable. My initial impression is that it's rather like being the wrong man in the wrong place at the wrong time.

"We decided to get in bed with them to see what they're saying," he says of his group's controversial decision to accommodate the fisheries cartel, including the main processor groups such as the Seafood Producers, by joining its pressure group, the Atlantic Fisheries Industry Alliance.

The "alliance" was formed overnight at a meeting in the Shelburne Fire Hall in early October by businessman Denny Morrow, discretely accompanied by a representative of Clearwater Fine Foods, to challenge the Marshall Decision and preserve the status quo. It even seeks funding from DFO, and representation in all negotiations with the First Nations. In the committee hearings, virtually every witness from PEI to New Brunswick is asked by the two Johns from the Reform Party -- Cummins and Duncan -- as to whether, "you support the seven points of the Alliance?" The question is not fortuitous. Peter Green, an executive vice-president of Clearwater, was a Reform Party candidate in the past two federal elections in Halifax, and the Reform Party was active in the unrest in Yarmouth.

Spinney's uncomfortable with my question. Nine other inshore associations, such as the South Nova Fisherman's Rights Association, had openly challenged Morrow's agenda at his founding meeting, and refused to join the so-called "alliance".

But Spinney is also anxious to detail examples of how lobstermen are practically assisting Native fishers -- the Mi'kmaq historically developed the weir fishery -- to enter the lobster fishery with donations of traps, buoys, booms and anchors.

"Others have drafted up a map of the coastline and explained on this map how the tide runs, when it's running one particular way on the flood and how it's running on the edge, and if you set gear, it's going to drift this way or that way, and everything else, to try to assist them." None of which had been then reported in the media.

More's the pity, therefore, that the code of the media scrum also conceals some passionate and no less accurate observations and attacks on DFO and the fisheries cartel and their modus operandi.

Spinney and others explain their perception that the DFO is deliberately using the turmoil surrounding the Marshall Decision to suddenly railroad through an extensive list of ever-toughening "conservation" measures which benefit the offshore lobster interests such as Clearwater Fisheries.

It is, adds MP Peter Stoffer, the NDP fisheries critic from Sackville, who joins our discussion, "the thin edge of the wedge", a step towards introducing an ITQ system (Individual Transferable Quotas, which can be bought and sold) into the healthiest of a sick fisheries. It will be a catastrophe, an act of wilful political and economic blindness in DFO's pursuit of globalization and corporatization at the expense of the inshore fishery. It is a proposition that Stoffer repeatedly raises with each witness who testifies including, on October 24th, Herb Dhaliwal, the new fisheries minister and a wealthy Vancouver businessman. Dhaliwal, however, evades the question.

A valuable admission

But, in testimony being reported here for the first time, a senior DFO official, Patrick Chamut, assistant deputy minister of fisheries management, admitted on October 25 -- the day after Dhaliwal's appearance -- that DFO had met privately with a high-powered delegation of three lobster processors led by Clearwater Fine Foods of Nova Scotia.

Stoffer asked pointedly: "Was there a meeting with members of the corporate sector and DFO in Halifax a few weeks ago? The corporates apparently brought their lawyer with them and had a meeting with Neil Bellefontaine (Atlantic Director). The tone of the meeting apparently ... was that if the Aboriginal people go past the three-mile limit, the corporate sector will sue the DFO."

"My understanding," Chamut admitted, "is that there was a meeting involving regional staff with those individuals and those companies that have licences in the offshore lobster fishery. There was discussion of their assertion that the right should only apply within the three-mile limit. And there was further discussion about the issue of opening or reopening the offshore lobster fishery in the middle of October."

Neither Chamut nor Dhaliwal ruled out broadening an ITQ system from the offshore into the inshore lobster fishery.

Stoffer said to me, "The corporate elite told the DFO in no uncertain terms that, were the Natives to have access to the offshore, and that if they did, they would sue the ass off the federal government.

"What it said to me is that the corporate sector is very nervous about what was going on with the Marshall Decision," he added. All-round pressure would be levelled against inshore fishermen, and to keep the Mi'kmaq inshore, if not onshore.

The real conflict

Unlike the groundfisheries, the intensely-exploited lobster fishery is far from a "basket case." The offshore lobster sector, as reported by shunpiking last month, now controls 25 per cent of total catch of the second richest fishery in Canada, after salmon. It is controlled by one aggressive corporation, Clearwater. It is also essentially unregulated by DFO; it exploits brood stock and spawning areas hitherto undisturbed, which are affecting inshore stocks. "Offshore trap trawls target the big breeders, probably the mother of all the lobsters caught inshore," says Janice Harvey, marine conservation director for the Conservation Council of New Brunswick.

The inshore fishery is community-based, decentralized, artisanal and under intense pressure. Over the past century, the average weight of individual lobsters has declined substantially, by two to four times since 1873. In southwestern Nova Scotia, most lobsters are taken in traps set less than 12 miles from shore. Fishermen with smaller vessels, fewer traps are compelled by their more limited means to set gear nearer to shore than processors/fishermen with greater means. Under a licencing system introduced in the late 1960s, entry was restricted; when redesigned in the late 1970s in the midst of massive protests against foreign fishing, DFO forbade any return of more than 1,900 fishermen who were deemed to be "part-time," "not professional" or "moonlighters."

This also made the entry of Mi'kmaq fishers prohibitive.

Alongside, DFO created an offshore lobster fishery, using an ITQ system, which was handed over holus-bolus to the monopolies.

Chamut's admission sheds a different light to the events involving the inshore lobstermen in Nova Scotia and New Brunswick -- in Lobster Fishing Area 34 -- an area covering some 21,000 square kilometres of ocean bottom.

Spinney has detailed reports and correspondence with former fisheries minister David Anderson, who got out of the portfolio just before the Marshall Decision.

As recently as January 18, Anderson pledged in writing to Spinney: "I assure you that there is no intent to impose additional measures ‘regardless of the amount of v-notched lobster caught during the June 1999 survey.'"

What changed?

"Divide" and "rule"

On October 17-18, lobstermen staged their "blockade" in Yarmouth harbour preventing Mi'Kmaqs from fishing. Native gear was destroyed. Their anger was allegedly directed against the Marshall Decision of the Supre Court, the provision of any rights to the First nations and an allegedly illegal summer food fishery of lobsters in St. Mary's Bay, near Digby.

Far from being a "spontaneous" act, as depicted by the media, fishermen were incited by forces behind the scenes.

Almost three weeks before, both Native and fishermen's representatives had sent a letter to Dhaliwal on October 1, warning that "in light of the current volatile situation in the lobster fishery in this area, these measures would be nothing less than inflammatory.

"By bringing in additional controversial changes to the lobster fishery, your Department will be adding confusion to an situation that is already confusing enough."

The letter was jointly signed by Harold Theriault Jr. on behalf of the Bay of Fundy Inshore Fishermen's Association and Chief Kerry Prosper of the Mi'kmaq Fish and Wildlife Commission, representing 13 Mi'kmaq chiefs.

Despite media reports about so-called racial conflict, the two groups had been meeting for more than a year to establish "a working partnership" and a "joint responsibility for the stewardship of the resource."

Early in November, DFO even paid for Spinney and a seven-member delegation to travel to Ottawa, so as to seemingly "consult" on their concerns. He shakes his head. "They paid us to go there and lobby against them."

By the time they had returned, new measures had been already announced by executive decree.

The sudden turnaround by DFO prompts Arthur Bull to point to a "divide and rule" strategy. Bull is the articulate chair of the Coastal Communities Network, involving some 100 groups, and co-ordinator, Bay of Fundy Inshore Fishermen's Association.

"It is hard not to be cynical and see the timing of this as anything but exploitation and manipulation of this crisis. This one example shows you why fishermen's organizations and their communities have the sense that DFO would exploit the situation rather than solve it."

Corporate goals lie behind the fear-mongering and manipulation about the Native fishery, he says. "People are afraid that DFO would in fact use this situation to further its own agenda to bring in a Total Allowable Catch on lobster, and would then in fact, privatize that, as has happened with groundfish, herring, scallops, and pretty well every other species." (See also "Marshall Decision: The Revolt Against DFO")

The concern of the inshore fishermen about a hidden agenda and "divide and rule" strategy is also shared by Mark Butler, coordinator of the Marine Issues Committee at the Ecology Action Centre. (See also "Marshall Decision: The Revolt Against DFO").

He points to another process happening behind the backs of fishermen.

The DFO and the media, he says, have everyone so preoccupied with the Marshall Decision that they're overlooking an entire "Policy Review" being carried out in silence. "This Review is not about fixing the fisheries, it's about enshrining the status quo."

According to Chamut, the first phase of the report will be finished by next spring.

Heading into lobster season, the mass of lobstermen in southwestern Nova Scotia were clearly concerned about pressures from the offshore corporates and the possibilities of DFO changes in LFA 34.

Yet someone -- it's not yet clear exactly who, though several sources point to two Yarmouth-based processors -- diverted this anger westwards, away from the offshore, to what was allegedly happening with Mi'kmaq fishermen in St. Mary's Bay, near Digby.

The economics of carapace size

The main rule change introduced this December 15 -- well after the start of the season -- is an increase in the minimum carapace (body) size of a lobster that can be harvested. Other rules affect maximum size for harvested lobster, and tail v-notching of egg-producing females. The rules are being phased in through a four-year program that began last season.

The aim of the DFO's plan is to at least double the lobster egg production in each district in the region over four years. Yet the lobstermen are querulous. No numbers are given.

Measurements of body size are taken from the eye to the edge of the back where the tail section begins. This year's minimum was to be 81.8 millimetres, up from last year's 81 mm, or from three inches and three-sixteenths, to 3.25 inches.

The significance of a whole sixteenth of an inch is hardly esoteric. It lies in the fact that many smaller processors are tied in to the existing size, says Spinney. These buyers will lose that market, and may be driven into bankruptcy. Clearwater isn't dominant in this market, but its overall market share will benefit from the 3.25 inch size.

"Are we benefiting the industry as a whole or this or that company," asks Hubert Saulnier of the Maritime Fishermen's Union, which represents fishermen in Digby, Yarmouth and some in Shelburne County, the next day. Saulnier is a veteran, clear-speaking Acadian fisherman.

"There are a lot of different pressures, but there has been a lot of pressure towards the 3.25 inches.

"There is a backroom deal, though I can't prove it myself. We know it from logic, from cause and effect," he told me forthrightly.

Being a larger lobster, the 3.25 inch size is more likely than not to be caught offshore, increasing the pressure on the inshore lobstermen. The now-smaller lobster found along the inshore will have to be thrown back to continue to grow and, in the case of females, possibly spawn again. It will mean a drop of income of as much as a third, says Bull. Spinney says that for the offshore and midshore fleets it will not have any negative effect.

"For people fishing inshore, in the St. Mary's Bay, it's upwards of 35 per cent, and in the month of February it's as high as an 80 per cent loss."

The increase in the carapace measure will drive up the market price by an estimated 50 per cent.

"The Europeans want that one-pound lobster. It's a big market, and it's in dire need," explains Spinney. "Also, going from three and three-sixteenths to three and a quarter, you're jumping from a one-pound lobster, which is a three and three-sixteenths, with two claws, to three and a quarter, to almost a pound and a half. Now all of a sudden you've got a $7.50 lobster versus the $5 lobster, if the price is $5 a pound."

"Conservation" for who?

Lobstermen assert that "conservation" is an insidious DFO smoke-screen to mask other objectives. They argue that there is a tested alternative to measure increases. v-notching "is a far more important initiative than increasing carapace size," according to Saulnier. Though practised in Maine for over 50 years, it was only introduced last year after years of resistance as lobstermen voluntarily began a V-notching program. They swear by it. They've organized workshops, brought in scientists at their own expense, and this past year V-notched some 135,000 egg-carrying females, meaning they will be protected for years to come. Some 70 per cent of lobstermen voluntarily participated.

Once V-notched, the lobster cannot then be caught.

It is estimated that between 97.5 and 99.5 per cent of hatched lobster larvae die or are eaten in the first year. A typical mature female lobster carries more than 50,000 eggs.

"It shows the extent to which we've come," stresses Saulnier.

They also challenge DFO's science. "DFO has little or no science to support a measure increase," Spinney states. Adds Saulnier: "Some of the scientific surveys were even undertaken by us."

The media scrum has long dissipated. The fishermen leave the lobby of the Lord Nelson Hotel as their rides arrive, to head home to prepare for the opening of the lobster season, without power or say, without a shred of faith in the integrity of the process or the legitimacy of the institution, let alone hope from a Commons committee.

"We're tired of the fisheries being managed like a private fiefdom of the corporations," says Bull to the MPs.


On December 16, the Commons Committee issued its recommendations, which were signed off by Mr. Stoffer. They included, among other things, increasing the enforcement and policing forces of DFO in the name of "conservation", with measures for the "integration" of the First Nations into the "commercial fisheries" and "management structures," including a limited buyout and transfer of licenses.

"They still want to keep us in a second-class category," Chief Lawrence Paul, of the Atlantic Policy Congress, said in response.

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