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Illk‘‘ I

kAtlasrnt ICI teitilIte

Atlantic

Law, Regulation, and Illegality in the

Nova Scotia Lobster Fishery'

KEN

7747 M3a 1988

Occasional Paper Series

The Atlantic Institute of Criminology receives sustaining contribution from the Ministry of the Solicitor General. This funding enables the Institute to carry out its chief functions of research and dissemination of information.

MINISTflY C:;": 1 • i SOLIC:IT GENCRAI. OF CANAQA

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Law, Regulation, and Illegality in the

Nova Scotia Lobster Fishery*

by

John L. McMullan Dept. of Sociology Saint Mary's University Halifax, Nova Scotia

David C. Perrier Dept. of Sociology Saint Mary's University Halifax, Nova Scotia

Norman Okihiro Dept. of Sociology Mount St. Vincent University

Halifax,Nova Scotia

The authors wish to thank Suzan Ilcan, Suzette Bury, Karin Hahn, and Patricia Munroe for their assistance in the preparation of this article and the Atlantic Institute of Criminology, Dalhousie University for funding the Piscatorial Crime Project. An earlier version of this paper was presented at the Vth Congress of the Commission on Folk Law and Legal Pluralism, 12th International Congress or Anthropological and Ethnological Sciences, Zagreb, Yugoslavia, July, 1988.

Law, Regulation, and Illegality in the

Nova Scotia Lobster Fishery*

by

1

John L. McMullan Dept. of Sociology Saint Mary's University Halifax, Nova Scotia

David C. Perrier Dept. of Sociology Saint Mary's University Halifax, Nova Scotia

Norman Okihiro Dept. of Sociology Mount St. Vincent University

Halifax,Nova Scotia

The authors wish to thank Suzan Ilcan, Suzette Bury, Karin Hahn, ,and Patricia Munroe for their assistance in the preparation of this article and the Atlantic Institute of Criminology, Dalhousie University for funding the Piscatorial Crime Project. An earlier version of this paper was presented at the Vth Congress of the Commission on Folk Law and Legal Pluralism, 12th International Congress of Anthropological and Ethnological Sciences, Zagreb, Yugoslavia, July, 1988.

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1 1 1

1 1

1

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McMullan/Perrier

INTRODUCT ION

"Illegal lobster fishing feared" (The Chronicle-Herald, October 79)

"Concern of lobstermen grows over prospect for retaining status" (The Scotia Sun, February, 1981)

"Nine charged with piracy of Government vessel" (The Courier, May, 1983)

"Coastal Communities on Trial" (New Maritimes, October, 1983)

"Nova Scotia's lobster wars" (MacLeans, May, 1984)

"Minister concedes black market exists in fishery" (The Chronicle Herald, October, 1986)

As illustrated above, there is a growing and intense conflict between those

fishing the commons and state regulatory bodies, which has culminated in a

'law and order' problem in the Nova Scotia lobster fishery. Tensions

between fishers and government reached unparalleled heights when in

1983, boats were burned and fishery officers were assaulted. Disrespect for

rules, regulations, procedures and legislation is high. Violation3, proscc-utions

and convictions of fishers for lobster illegalities are increasing, as are the

politics of state penality.

The commercial fishers of many southwest coastal communities in Nova

Scotia are being labelled poachers and pirates by enforcement officers, the

media, government officials and industry spokespeople. Within their own

communities, however, they are frequently not regarded as criminals. The

rule of law and the customs of the commons are now in considerable dispute.

Central to this conflict has been a process of legal - Ideological censure

whereby infor mal, co m munity-based property rights, manage ment

McMullan/Perrier 3

strategies and folk forms of resource knowledge and use have been

contested, redefined and outlawed by new state property right claims and

social regulations about resource development.

The first part of the paper will map the history of government

legislation as it relates to lobster and other shellfish. This will be done in

order to provide an historical sense of the laws, customs and conflicts of the

fishery.

Next, a study of past and present trends in piscatorial crime will be

presented. This will involve an examination of government prosecutorial

reports from 1975 - 1986. We also analyze the character of contemporary

social conflict and the economic/legal/cultural motives for rule-breaking in

the fishery.

Finally, we examine the coercive capacity of the state as it relates to

fisheries enforcement.. This will involve a study of the enforcement branch

of the Federal Department of Fisheries and Oceans (D.F.0.) and the problems

and social conflicts entailed in enforcing divergent customary and legal

nor ms.

The study focuses on the southwest region of the province since this is

the backbone of the lobster fishery and the place where illegality and social

conflict has been most enduring and acute.

FISHERIES LEGISLATION AND REGULATION UP TO 1960

The birth of the Canadian commercial lobster fishery can be traced

back to the mid-nineteenth century. The first lobster cannery in Canada was

established in New Brunswick in 1845 and shortly thereafter one was

located in Yarmouth, Nova Scotia By 1851, there were 5 small canneries

operating in Western Nova Scotia servicing local markets. Following a

depletion in the lobster stocks in the eastern United States, American

McMullan/Perrier

entrepreneurs in 1869, moved into Nova Scotia and constructed large lobster

canneries capable of serving the U.S. market. (Found, 1912; Innis, 1954;

DeWolf, 1974; Scott and Tugwell, 1981). By 1873, the total number of

lobster canneries was 43, which accounted for 62.4 per cent of all lobster

canneries in the Maritime Provinces. According to Pringle, et al. (1983:2) "Of

the Nova Scotia canneries, 40 (93%) were located along the southeast coast

from Shelburne County through to Cape Breton County."

During the early years, operations were small and oriented to local

markets. But the decline in the New England fishery as a result of trade

embargoes following the American Revolution, combined with the flourishing

mercantile trade with Europe and the West Indies, transformed the lobster

fishery into a major supplier for markets in the United States and the United

Kingdom (Rutherford, et al.; 1967; Barrett, 1983; Innis, 1954). By 1873, the

south shore of Nova Scotia was one of the most productive lobster grounds in

the Maritime region. Lobsters were so abundant and easy to catch that they

were used to fertilize the land (Perley, 1852).

The overabundance of supply constrained the method of harvesting

the resource. At first lobsters were captured by hand or by gaff, hook or

spear. This was followed by the hoop trap, a number of which when hooked

together formed a trawl. This latter method corresponded with the growth

of lobster canning. According to Knight (1867:57): "By 1867 fishermen in

Nova Scotia knew of lobster traps but they were not used extensively as

they were considered expensive." The size of supply, the simple technology

and the reliance on local markets (prior to the era or cannery expansion)

meant that fishers received a low return for their catch.

This early period up to 1873, was characterized by a 'laissez-faire'

approach to state management. Lobstering was managed as a common

McMullan/Perrier 5

property resource. There were few regulations controlling the commons and

law and custom structured the rights of access, management, and stock

protection. Informal norms among fishers set the fishing boundaries,

defined the 'shares' of the commons, and limited the effort. Fishers

established formal and informal property rights to territoriality, to

community exclusivity and to information and management on what were

considered to be rights to particular local concentrations of fish (Acheson,

1972, 1975). As Anderson and Styles (1973) note, "territoriality was the

key to fish management, moreso than fishing effort or fish population

regulation." For lobster, which are relatively sedentary and seasonally

predictable in their location patterns, this allowed for a stable moral

economy on a harbour by harbour basis. Communities claimed to hold the

right of piscary even though they did not own the ocean waters. (McCay,

1984). Boats and gear were not usually restricted, and earnings and catch

sizes depended upon the skill, effort and equipment of the individual fishers.

In good seasons most would benefit while in bad seasons most suffered,

more or less equally. Many of the dozens of communities that made up this

coastal region of the province tended to create and sustain rather integrated

occupational fishing cultures marked by a definite insider/outsider

mentality. Not surprisingly, this involved close bonds of mutual regard and

care for the welfare of one another, a web of use-rights and folk knowledges

about the sea and its resources, and a code of fishing conduct (Miller and

VanMannen, 1979). Often this entailed knowing the areas of most lobster

concentration and the most economical ways of working pots and traps.

Since territory was so important in lobstering, harbours as well as

individuals within ports, upheld and defended boundary arrangements.

Interlopers, then and now were treated harshly. Acheson's observation

1

McMullan/Perrier

(1974:189) about the Main lobster fishery holds true for Nova Scotia, "Sooner

or later, however, someone - usually one man acting completely on his own -

will decide to sanction the interloper. First the violator may be warned,

usually by having his traps opened or by having two half-hitches tied

around the spindle of his buoys. If he persists, some or all of his traps will

be "cut off", the buoy, toggles, and warp cut off, and the trap pushed over in

deep water where he has little chance of finding it." If the problem was a

community transgression then the solution was frequently collective. This

'resolution' to territorial disputes was usually managed by displacing the

violator from effective competition or, when possible, preserving traditional

community boundaries. Indeed, managing conflicts and rivalries was a

method of defining property rights and sorting out who belonged and who

was "from away." At bottom, common use rights were not open access but

they were exclusive to communal defined groups and they appear to have

been co-equally shared and managed (Ciracy-Wantrup and Bishop, 1975).

Lobstering, of course, was but one linchpin in the fishers system. The

ready abundance of salmon, clams, mackeral, sea bass, cod, and multitude of

other ground fish meant that fishers adopted what McCay (1984:20) has

called a "pluralistic and opportunistic approach" toward the sea at their

doorstep. During the years 1850 - 1873 the "overriding objective was

freedom of action for fishermen" as well as the encouragement of a multi-

purpose fishery. (Lobster Fishery Task Force Report, 1975-4). Lobster

fishing was unfettered by legislation, regulation or procedural restriction.

This was reversed in the decades follo-wing. By the mid 1880's,

declining American stocks, the demand for live lobsters,• and innovative

lobstering methods raised the landings such that the total lobster catch

pealced in 1886 at 100 million pounds (see Figure 1). As Table 1 shows the

McMullan/Perrier 7

number of canneries also incTeased from 43 in 1873 to 182 in 1892, to a

high of 277 in 1900. This represented a 644 per cent increase over the 27

years. Prices also escalated. Prince (1899) reports that between 1870 and

1885 lobster prices per pound increased tenfold in the Maritime region,

Pringle, et al. (1983) say that the landed price of lobster rose by 200 per

cent in the same time period. Clearly, competition for live market lobsters

and the increased capacity of cannery operations culminated in very high

landings in the years between 1880 and 1895 (Figure 1).

It was during these last three expansionary decades that legislative

measures were introduced. An Order-in-Council of July 7, 1873, prohibited

the capture of soft-shelled lobsters, egg-bearing females, and lobsters less

than one and one half pounds in weight. This was followed by amendments

in 1874 and 1876, which resulted in closed seasons for soft-shelled lobsters

in July and August, and which restricted lobster size to at least nine inches in

length. Then in 1879 an extensive eight month closure for southern and

eastern sections of Nova Scotia was introduced. These measures met with

opposition from fishers and operators, who objected "to making lobster

fishing a part-time activity." (Venning, 1909). As Found observes (1912:18),

"there were complaints from fishermen, who depended upon sales for their

winter supplies," as well as criticisms against letting in 'outsiders' who were

gainfully employed in other occupations. Likewise, seasonal closures were

not appreciated because Atlantic lobster fishers were restricted to fish in

periods that overlapped with the demands of the U.S. market for live lobster,

and with the supply capacity of U.S. fishers. This resulted in very intense

and competitive harvesting within straightened seasonal closure periods.

Cannery operators also were not sanguine about restrictive efforts.

According to DeWolf (1974:18), they, for the most part, "did not comply with

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McMullan/Perrier

regulations and both egg-carrying and short lobsters were packed." Rivalries

between fishers and operators became so intense over markets, quality and

stock conditions that common use rights within a laissez-faire system were

challenged. According to Scott and Tugwell (1981:26), "During the late

nineteenth century, the canner operators had actually established implicit

property rights over particular fishing grounds, often controlling a two to

four mile ocean frontage." This undermined the common use-rights of

fishers and privatized them.

Not surprisingly, resource depletion became a social tragedy of the

commons , amounting to a deprivation of common use rights. Figure 1 shows

that between 1885 - 1890, lobster landings fell from close to 100,000,000

pounds to about 57,000,000 pounds. The year 1887 marked the beginning

of this rapid decline in lobster catches. The increase in cannery capacity of

over 200% between 1873 and 1892 (Table 1) combined with the expansion

of the live lobster market, meant that stocks were heavily fished, not just

inshore but as well in the near shore.l• ' Technological innovations in the

form of gas engine boats and closed-end and hoop nets allowed fishers more

range, and efficiency. The new traps ensured that small lobsters did not

escape.

This decline brought about new legislation. In 1887, the Federal

government, upgraded their 1879 measures. They retained the prohibitions

on egg-bearing lobsters and those under 9 inches in length, and redefined

the closed season for southern and eastern Nova Scotia so that it was only for.

six months from July 1 to December 31. But. these efforts were too little too

late and did not reverse the resource depletion problem (DeWolf, 1974).

Between 1887 and 1927 no fewer than 9 commissions were appointed to

examine Maritime fishing. The Prince Commission, for example, found "The

McMullan/Perrier 9

(previous) regulations had neither been obeyed nor enforced. If enforced,

the canneries would have had to cease operations because of the lack of

legal-size lobsters" (DeWolf, 1974:21). In 1899 the boundaries of fishing

districts were redrawn. As Figure 2 shows, six new fishing districts were

established in the Maritime Provinces. Each were allocated their own lobster

size limit and season. No trap restrictions or lath spacing were included.

However fishing was not permitted in less than 2 fathoms of w.ater or closer

than 100 yards to a stationary salmon net, and capturing berried lobsters

was forbidden. (DeWolf, 1974). The contentious issue of size limit was not

addressed until 1909 1 when the size regulation governing lobster traps was

increased to one and one quarter inch spacing between the lathes and a

three inch mesh netting in the heads. This apparent conservation measure

did not result in the intended escape of lobsters and it was rescinded in

1914 (Scott and Tugwell, 1981:28).

Efforts at regulation in the form of district controls, season closures,

lobster size, and trap construction rules hàd only a minimal effect on stock

stabilization. Landings continued to fall from 1900 to 1920, while cannery

production increased, even though the number of canneries was starting to

decline. According to Found (1912:53) "[By 19121 Investment in 700

canneries was estimated at over $500,000 and in traps at $1.5 million.

Eleven thousand fishermen were engaged in the primary operations and

over 8,000 people were employed in the canneries."

The great decline in lobster landings that characterized the Maritimes

from 1890 onwards, turned around in 1925. The stocks seemed to

rebound,holding up well through the 1940's. DeWolf notes (1974:22) "At the

end of World War I, the lobster fishery moved toward a position of

equilibrium. Most technological changes in the method of fishing had been

1

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McMullan/Perrier

introduced.... The lobster-producing areas of the Maritime provinces were

divided roughly into two sections, a market section in the south and a canner

secion in the north."

This equilibrium, however, did not occur in the canning sector.

Canneries declined from 152 in 1920 to 36 in 1945. This reduction was

caused by a lessened demand for canned lobster meat brought about by

competition in the European market from canned Japanese crab meat, and

the heavy import duties set by markets in Europe for canned lobster

(Rutherford et al, 1967; Pringle, et al. 1983). Overall throughout the war

years, slight fluctuations in lobster landings occurred. Landed values were

less certain in the depression years fluctuating from a high of $2.3 million in

1930 to low points of $1.2 million in 1933 and $1.5 million in 1940 (Table

2). Thereafter they show a steady increase from $5.8 million in 1945 to

$8.2 million in 1960 (Figure 3). The average price for Nova Scotia lobster

increased from 33.1 cents per pound in 1945 to 39.5 cents per pound in

1955. The increase in price was also reflected in increased employment in

the lobster industry from 8,000 in the mid 1920s to 9,800 in 1960 (DeWolf,

1974). By 1961 10,739 out of 11,330 inshore fishers fished lobster for part

of a year. Their net average income from all sources was $2,857 annually,

of which $1,790 came from the lobster fishery. The importance of the

lobster industry for all fishers was highest in the western and southern

districts of Nova Scotia where it accounted for 57.9 % of their total annual

earnings (Atlantic Develop ment Board, 1969:29).

The years between 1925 and 1960 were ones of increased state

intervention. The MacLean Commission in 1934 recommended that a

carapace length limit be enforced at three and one sixth inches along the

southwestern shore of Nova Scotia, and that fishers be prohibited from

McMullan/Perrier 11

taking lobsters in more than one season in any year. Then in 1947 the

lobster fishing districts again were redrawn (Figure 4)2 . This was followed

by further alterations in carapace size and overall length for both market

size and canner lobsters. This increase in the size limits for market lobsters

to three and one eighth inches and then three and three sixteenth inches

was largely because of changes in the U.S. regulations (Wilder, 1954). The

Maritime lobster fishery was dependent primarily upon the distribution

centers of Boston, Gloucester, and New York.. US. markets tended to set the

price structure and they determined the price spreads and movements.

When the Americans altered their size regulations, it impacted on Canadian

suppliers .DeWolf (1974:26) notes, "because this market for live lobsters

was so important, Canadian limits were adjusted to conform with these in

Massachusetts". Regulatory measures were extended also to the area of

"factor input limitation". Restrictions on gear, vessels, and on the right to

fish were announced. As Scott and Tugwell (1981:27) noted "A major

instance was that of 1945, when capital, vessel and gear mobility were

drastically restricted by the introduction of a regulation which stated that

no one could use in lobster fishing any boats, traps or other lobster fishing

equipment that had been used during that year in lobster fishing operations

in any other lobster district," This regulation proved unenforceable and it

was rescinded in 1959, although it resurfaced in the late 1960's in the form

of trap limitations.

The post World War II period ushered in "financial assistance

packages" for fishers including trap insurance plans, low interest loans for

gear, boats, and engines, vessel subsidies, as well as aid for bait, storage,

and ice equipment. By 1957, unemployment insurance premiums were

made available to fishers from December 1 to May 15.

wiuraunanrrerner 12

Tgken together, these programs, incentives and regulations were not

always Integrated, but th.ey did in a rather ad hoc way, replace. the laissez-

faire attitude underlying earlier government policy. A peculiar blend of

market regulations, conservationist constraints and restrictions on the rights

of producers resulted. As one Task Force Report (1975:5) notes, "This is

evident from our closed seasons which avoid conflicts with peak periods of

U.S. production, changes of size limits to conform with those in major

markets, and the introduction of licence limitation." The use and tenacy in

common of the fishers of southwest Nova Scotia have been transformed by

the forces of the marketplace and the corporate fishery. The common rights

of piscary were eclipsed by the development of private property use rights

and by state property relations. This resulted in a de facto and de jure

enclosure of the commons.

TRAP CONTROLS AND LICENSE LIMITATIONS: 1960- 1986

The period from 1960 - 1986 was one of increased state regulation.

Much new and revised legislation focussed on the traditional measures of

closed times and seasons, vessel registration, licensing of lobster fishers, as

well as the operation of lobster pounds and offshore lobstering. Major rule

changes prohibited possession of lobsters, using a vessel for transporting

lobsters without permission, hauling lobster traps on a Sunday, and fishing

by means other than lobster traps (Statute Revision Commission,

1977:5120-5122). Yet the panoply of regulations affecting size, season,

equipment, and quality were bolstered by a more ambitious and

dontroversial set of regulatory plans - tag trap limitations and limited entry

licensing.

Two reasons seem to underly these regulatory additions: rationalizing

harvesting and production, and protecting the resource. The first was

McMullan/Perrier 13

supposed to enhance the position of bona fide fishers by reducing costs and

increasing incomes over the long term. The second was supposed to ensure

that over-capacity in the fleet did not overfish the resource.

Landings were stable in the 1950s but they fell abruptly from 43.5

million pounds in 1960 to 27.9 million pounds in 1972. Landed value,

however, increased over the same time period by $15.3 million (DeWolf,

1984). Fleet capacity and mobility also increased. There were now larger

boats with more sophisticated engines, lorans, radar, depth sounders and

parlour traps. At the turn of the century most lobstering occurred within

20 miles of the coast; by 1970, the radius was 50 miles and beyond, and in

1971 an offshore lobster fishery was established. The issue of how many

fishers and boats would be allowed to operate and with how much

harvesting effort became the central issues. Regulating capacity without

limiting incomes and employment was the political agenda. Trap limits,

quotas, limited entry licencing, and buy back programs were the practical

strategies.

An earlier self imposed trap limit program in Cape Breton and in the

Lismore area of Nova Scotia in the 1950s had increased income by cutting

costs without reducing the catch (Task Force Report, 1975). In 1966, in

District 8, the first state imposed trap limit of 250 traps per boat, per fisher

was introduced. Then in 1968 limits of 300, 375 and 400 were set in the

Maritime Provinces. For districts 3, 4A and 4B in southwest Nova Scotia

they were between 250 and 375. (Table 4).

Trap limits were followed in 1969 by the licencing of boats rather

than fishers. Two classes of boat licences were created. Initially Class "B"

licenses were issued to all boats from which less than 100, 75 or 50 traps

were fished. Class "A" licenses were issued to almost all other boats from

McMullan/Perrier

which a number of traps greater than the upper limit for class "B" were

fished in 1968 (See Table 4 for Districts 3 and 4). If a fisher using a class

"B" boat stopped fishing, the license that went with that boat was not

renewed. On the other hand, if a fisher using a class 'A" license stopped

fishing, whoever bought his boat also acquired the class 'A" license. The

government reserved the right to purchase boats along with the associated

license (Canada Gazette, 1970; Scott and Tugwell, 1981:29). The limitations

placed upon class "B" boats were intended to phase out 'moonlighters' and

this strategy did reduce the numbers of part-time fishers. Since 1969 the

number of Class "A" lobster boats in the Maritimes remained constant at

about 8,800 while the number of Class "B" boats declined from about 1,100

to 600 (Task Force Report, 1975:61). It also resulted in "a decrease in the

number of lobster fishermen from 16,177 in 1960 to 12,543 in 1972"

(DeWolf, 1974:26).

Fishers incomes, however, did not seem to increase appreciably. By

1971, three years after trap limits were flaposed, it was revealed that 48%

of lobster fishing vessels in the Maritimes had gross returns of less than

$2,000 (DeWolf, 1974:46). In the following year less than 1% made over

$15,000 while only 3.6 % had gross returns over $10,000 (Mail Star,

1973:3). Data on lobster fishers' incomes for the Maritime Provinces for

1973 indicated that 30% of the lobster fishing enterprises (boats) grossed

less than $1,000 'while 64% grossed less than $5,000 and 7% made over

$10,000. The average income within the Maritime lobster fishing districts

for all boats in that year was $3,670. The highest proportion of enterprises

grossing over $5,000 were in lobster districts 1, 3, 4 and 7B (Table 3).

Conflicts between the offshore and the inshore sectors heated up when

the swordfishers were allowed to catch lobsters with traps in the offshore

15

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the whole year round. Eventually the number of offshore boat licenses was

restricted to six and boat quotas were fixed. Similarly, in the early 1970's

there was a drift of other fishers (i.e. haddock and herring) into lobstering.

In turn, this resulted in rivalries and conflicts between fishers over a scarce

but increasingly valuable resource. The declaration of a 200 mile economic

zone in 1977 rapidly capitalized the primary and secondary fishing sectors.

Fishers, especially those in the small boat sector, were urged by the

government to invest in new equipment and vessels. They borrowed large

amounts of money from the Fishermen's Loan Board, to finance these

ventures. In just one year after the extended economic zone (1978 - 79)

loan approvals by the Nova Scotia Fishermen's Loan Board increased by 259

percent (Davis and Kasdan, 1984:113). More and more fishers were

becoming dependent upon speCialized technologies and upon government

programs for the acquisition of these technologies.(Stiles, 1972; Ilcan, 1986)

Although these programs were designed to give fishers a chance to increase

their catches and incomes, they did force them into financially debt-

dependent positions (McMullan 1984) . The dollar value of loans increased

by. over 1,544 percent from 1955 to 1980. More importantly, the balance of

loans payable to lenders às a percentage of loans made, increased

dramatically from 0 percent to about 82 percent in the same 25 year

period. As Davis and Kasdan (1984:112) noted, "with increasing debt,

particularly indebtedness to government, has come increasingly dependence

on the financial resources controlled and extended by government. This

relationship is a tighening noose from the fishermen's perspective." In a

very short period of time, small boat fishers found themselves unable to

service their debt and on the brink of elimination from the industry.

McMullan/Perrier

In 1977 further changes were made to the "factor input regulations. "

Category "A" and "B" vessel classifications were revoked and the

government reverted back to the licensing of fishers. The previous trap

limitations placed on Category "A" and "B" boats remained, meaning that

category "A" fishers would be designated as employed full time in the

lobster fishery. Scott and Tugwell (1981:30) note: "Category A

licenses...shall not be issued to a person who (a) is fully employed in

employment other than primary industry employment or (b) has full-time

seasonal employment unless he can establish that his gross annual earnings

during the twelve-month period immediately preceding his application for

the license do not exceed what he would have earned if paid the minimum

wage plus twenty-five per cent during that period. " This licensing policy

mainly affected thos'e fishers in the low lobster producing districts, that is

areas 1 - mainland, 3, 4 - last, 5, 6B, 7A 7C (see Figure 2). The last residual

type of license adopted in 1978, Category "C", could only be given to a

person who acquired a registered lobster fishing vessel in a year

subsequent to 1968 and who was not eligible for either Category "A" and "B"

licenses. Initially, a Category 7C" license could only be issued in 1978 or any

subsequent year for fishing in district 1, 3, or 4, but as of 1979 or any

subsequent year, this license could be granted for fishing in any of the

districts (Statute Revision Commission, 1977:5123).

By 1979 regulations governing the fobster fishery were legion and

included licensing of fishers, boat licenses, restrictions on districts, seasonal

and size limits designated by district, restrictions of gear type to traps, trap

limits, prohibitions against capturing berried lobsters,-possessing lob sters

out of season, and transporting lobsters without permission. To many

fishers these were cumbersome, confusing and a considerable curb on their

111131v1U1141ii 1-'Cf f ICI 1/

ability to fish. As Hanson and Lamson (1984:5) note "this has resulted in a

climate of uncertainty with rules applied and quotas assigned in a manner

not clearly perceived by all participants as being either equitable or

efficient".

In property terms, the lobster fishery has undergone two major

transformations. The "right not to be excluded, or more properly the

communal use right to piscary," has been exhausted and replaced with

private property and state property rights. (Macpherson, 1978:4-5, 201).

By creating a system of licensing some but not all of its citizens, thereby

granting a privilege to fish; the right to fish, once common to all, has

become the private property of the fisher. Indeed, private ownership was

bolstered further because the fisher was able to transfer for profit that

right to fish lobster to another. In legal terms this privilege conveys

inclusion and exclusion and socially constructs a category of offender that

previously was non-existent. Hence the capacity to fish illegally increases

with the entrenchment of private property rights and their attendant

restrictions and exclusions.

In the lobster fishery the private property right is state endorsed and

state managed. The rights of the owner are limited since they cannot claim

management rights normally associated with property. Fishers, as

Marchack (1987:5) notes, do not make the crucial decisions with "respect to

the resource, control of habitat and waterways, allocation of licenses, and

limitations on capture capacities." These have been claimed as state

property, usurped (roui communal rights, and increasingly and

bureaucratically imposed on the private user. In legal terms this has

resulted in a series of artful quasi-criminal definitions designed to outlaw

certain accepted fishing behaviours. As Box (1983:7) observes "legal

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categories are "resources, tools, instruments designed and then used to

criminalize, demoralize, incapacitate, and fracture" troublesome populations.

They constitute one way "by which social control over subordinate, but

'resisting', populations is exercised. For once behaviour more typically

engaged in by subordinate populations has been incorporated into criminal

law, then legally sanctioned punishments can be 'justifiably' imposed." Not

surprisingly, the more the state restricts, and allocates access rights, while

at the same time retaining and elaborating extensive management rights

affecting users in diverse ways, then the more it opens up the possibilities

to challenges to its authority and abrogations of its legal rules.

ILLEGALITY AND SOCIAL CONFLICT

State management in the lobster fishery has produced a contradictory

'policy'. On the one hand, they have encouraged a regulatory and

conservationist course restricting the right to fish as a method of

eliminating overcapacity and excess labour inputs. On the other hand, they

have spurred on capital growth, fleet rationalization, and more fishing effort

by their loans and subsidy programs. By 1980, the lobster fishery had

become the 'backbone of the Canadian Atlantic Inshore Fishery' (Pringle et

al., 1983:80) The state priority of promoting the accumulation process

meant that much added capital had gone into increasing the yield and the

value of the commodity, as well as into the process of harvesting and

production. As Table 5 shows, the value of lobster landed co'mprised 30.9

percent of the value of all fish landed in 1986, more than doubling the

importance of the lobster fisherY since 1978. Table 5 also shows that

landings had tripled in Scotia Fundy and more than tripled in districts 3 and

4 , (southwest Nova Scotia), which by 1986 accounted for 85% of the

lobsters landed by weight. Value also increased for lobsters from District 3

McMullan/Perrier 19

and 4 from $22,083 million to $96,434 million, which by 1986 accounted for

75% of the lobsters landed. Ninety-five percent of Nova Scotia fishers now

fish for lobster at least part of the year (lican, 1987:15).

At the same time the debt problem has been aggravated, especially

for the small-boat fleet. As Davis and Kasdan (1984:114) note, "this is

because neither the price for resources landed nor productivity have

increased at a rate comparable to that of their debts." Consequently,

growing numbers of boat owners are having their equipment repossessed

by the government. Indeed, the Loans Board has adopted a new policy

requiring fishers to use th.eir licenses as collateral on boat loans, thus giving

the Loans Board the right to sell licences and boats in default cases

(Chronicle Herald, April 11, 1984; Atlantic Fishermen , May 23, 1986).

There are thus strong economic incentives to fish which do not mesh

with regulatory controls. Conflicts in the offshore about quota allocations,

offshore lobster licenses, district restrictions, and in the inshore about i

enforcement policies, and administrative priorities are many, and indicative

of the deep cleavages among fishers, and between the fishing community

and the state. These are the result not of the tragedy of the commons but of

the tragedy of mismanaged state property.

Fishing illegally is one way to maintain flexibility in an ever

restrictive fishery. 'Poaching' or illegal fishing of course is not peculiar to

the 1980's: it has a long pedigree. At the turn of the century, the Prince

Commission (1899) reported that "the practice of capturing and poaching

egg-carrying and short lobsters" was common. "Respect for the law" in

these matters, we are told, was a "dead letter on most parts of the coast"

since enforcement was non-existent, and there were incentives to fish small

lobsters for the canned markets. DeWolf (1974) in his study of the

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economic effects of lobster regulations noted, that overall in the history of

the fishery, there had been little compliance with the law on area

restrictions and seasonal closures. The Lobster Task Force Study reported

that illegal fishing, especially during closed seasons, in closed districts, and

with more traps than allowed, has been and remains a grave and enduring

problem. They noted (1975:60), "it is to a fisherman's advantage to obtain

as large a share of the catch as possible. Sometimes this is accomplished by

evading the established regulations. In some regions, and at some

ports....fishermen are in full support of the regulations and few protection

problems exist....In other regions and ports, they are seldom adhered to and

fishermen aid each other in avoiding detection." In district 4A of southwest

Nova Scotia it was reported that "it was commonly known that many

fishermen greatly exceeded the 375 trap limit that had been in effect since

1968 since the traps were seldom checked for tags by fishery officers, the

fishermen could easily put untagged gear in the water." At the sanie time,

it was reported to be easy to obtain "up to 100 replacement tags for the

actual or anticipated loss of traps, and thus it was not uncommon for some

fishermen to have between 375 and 475 tagged traps in the water."

(Kearney 1984:6)

Indeed, the D.F.O. introduced a tough policy of license suspensions to

correct illegalities and ensure compliance with the regulations. As Table 6

shows, 171 lobster fishing 'privileges' were suspended between 1971 and

1974. The financial loss measured by gross income per suspension varied

from district to district and ranged from $250 to $4,000. Of these

suspensions 39 or 23 percent were from districts 3 and 4. In addition to

license suspensions, fines were also levied. From 1968 to 1974,

approximately 1200 Maritimers were prosecuted for violating the lobster

McMullan/Perrier 21

fishery regulations of which 95 percent were convicted. The fines ranged

from $1 to $1,000 with the average fine being about $50. The highest fines

were imposed in lobster districts 68 , 7A, 78 , and 8 ($63 per infraction),

while the lowest was in district 1 ($26 per infraction). As indicated in the

Department of Fisheries and Oceans task force report (1975:76) "of the total

convictions, 74 percent of the fines were infractions committed by lobster

fishermen, 4 percent by buyers or dealers, and 22 percent by other

persons."

Between 1975 and 1982 the number of lobster violation charges

exceeded all others with the exception of those laid in 19783. Figure 5 and

Table 7 show that between 1975 and 1982, the annual proportion of lobster

charges laid was at least 30 percent of the total number of charges

involving all species. By 1982 the number of lobster charges represented

46 percent of all charges laid. Charges for lobster violations over this period

increased 148 percent, and from 1977 onwards, the number of charges in

respect to lobster violations tos_e by_ approximately 180 percent.

Table 8 lists the number of charges laid between 1975 and 1982 by

type of violation. Over 59 percent of the charges for lobster violations in

any given year were for illegal fishing (19FA) and having in ones possession

undersized lobsters (3.1B). In 1977, 83 percent of a ll lobster violations

occurred within these two categories.

The maximum fine allowable for lobster poaching in 1983 was $5,000

plus loss of equipment used in the act. Licenced lobster fishers convicted of

poaching faced a two-week suspension of their licence, which meant a

yearly loss of between $20,000 and $30,000. In Table 9, the number and

types of dispositions for charges dealing with all species between 1975 and

1982 indicate that fines under $1,000 were used quite frequently. In 1975

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of all the dispositions imposed 87 percent were fines under $1000,

however, this declined to 31 percent in 1982. In 1979 after enforcement

efforts were increased fines over $1000 were imposed and the number of

catches forfeited also increased. In general, both charges and convictions

have risen over the eight year period, as have the number of cases

dismissed. Furthermore, the value of fines imposed, and catches and fishing

gear forfeited have also increased during this same period as illustrated in

Table 11.

In areas 3 and 4, 78 percent or 395 of the dispositions imposed by the

courts involved the use of a fine. Of those fined, 311 or 79 percent received

fines under $500, 56 or 14 percent between $500 and $999, and 28 or 7

percent were fined more than $1000. In addition, 62 or 12 percent of the

dispositions imposed were in the form of forfeitures over the same time

period.

License suspensions increased s lightly. During the years 1975-81,

there was an increase—Cram...Min 1975 to 21 in 1981. Prior to 1979 almost

ail licence suspensions were for a two week period as seen in table 11.

After 1980, an increasing proportion of licence suspensions were for one

week only. Then in 1982 suspensions declined sharply . In areas 3 and 4

the number of lobster licences suspended between 1976 and 1986 totalled

55 or 11 percent of all dispositions.

A detailed analysis of prosecutorial records covering southwest Nova

Scotia (areas 3, 4A and 4B) over a ten year period shows similar trends.

Between 1976 and 1985, lobster charges have increased by 330 percent. Of

all the charges laid 262 or 49 percent occurred in areas 4A and 4B. (Table

12). Table 13 shows how the 531 lobster offenses were distributed along

several dimensions. Geographically, lobster districts 4A and 4B produced

McMullan/Perrier 23

most of the lobster offenses. Slightly more offenses originated in lobster

district 4A comprised of the counties of Digby and Yarmouth than district

4B consisting of Shelburne, Queens, Lunenburg and part of Halifax counties.

The violation of lobster regulations is perpetrated by locals. Four in five of

those whom we have information on committed the offense in the same

statistical sub-area as their home address. Fully 19 of 20 occurred in the

same lobster district as the address of the accused. Almost all offenders

were males, with the age distribution skewed towards the younger age

groups, the modal value being in the thirties. Our detailed offense

breakdown revealed twenty-seven regulatory violations. For purposes of

analysis, however, we recategorized them into six basic offense types:

illegal fishing, trap . and gear offenses, avoidance offenses, undersize

lobsters, license violations and time and place offenses.

Illegal fishing refers to section 19 of the Fisheries' Act and is directed

at those who are not usually classed as commercial fishers. Table 14 shows

that 78% of those whae—first—caentioned offense was illegal fishing were not

commercial fishers. This is an offense that almost always occurs in the

closed season and typically involves two or more offenders with a strong

likelihood of a car or small non-commercial boat being involved. Table 15

indicates that almost all contact with the offenders by fishery officials was

made onshore, with almost no involvement of sea or air patrol vessels.

There were a variety of sources of information other than sea patrols which

brought the offence to the attention of fishery officers and in almost all

cases, the enforcement officers caught the offender(s) by concealing their

surveillance. There was usually more than one officer present at the

apprehension, and in one in eight of the cases, backup was requested In 4

out of 5 cases, at least one person was not co-operative. Fifty percent of

2. it-

those charged tried to hide or dump evidence and in twenty percent of the

cases, someone tried to flee. Lying and verbal abuse were frequent, and in

five percent of the cases, threats and assaults occurred.

Trap or gear offenses are quintessential offenses of commercial

fishers. Eighty-five percent were classed as such, a fact that is reflected in

the age distribution of offenders being quite uniform from about age 20 to

60. Most of the violations occurred during the closed lobster season,

especially during May, the last month of the season. The majority of fishers

were usually apprehended alone and at the dockside where fishery officers

were paired for equipment checks, or where they were assigned to work in

larger teams. Most offenders were co-operative but there were a minority

of cases in which fishers refused to cooperate or expressed insults and

anger. Threats and assaults occurred in 10% of the cases.

Undersize lobsters was the largest offense category for first-recorded

offenses. Violations were evenly sp lit between commercial fishers and

unlicensed persons. Generally, officers contact with the accused occurred

onshore, either at the start of the open season in December, or at the end of

May. Invariably, those caught were co-operative. There were few attempts

at escape or deception. Rarely were verbal or physical threats made. 4

License violations primarily involved commercial fishers particularly

young captains of fishing vessels. Charges usually resulted from a follow-up

based on prior information. Contact took place onshore in a minority of

cases, and a backup was used fairly frequently. Table 16 indicates that

enforcing this category of regulation is unpredictable relative to others, with

no strong pattern of refusing to co-operate but with a fairly high rate of

assault of fishery officers.

McMullan/Perrier 25

Time and place offenses are violations of regulations concerning

proper fishing areas and time regulations. Offenders were typically caught

during sea patrols, and were equally divided between commercial fishers

and others. Small numbers (6.9%) precluded a study of offender behaviour.

Finally, the few avoidance offenses (4%) are interesting because they

involved apprehensions at sea. Offenders were equally split between

commercial fishers and others. When an offender's vessel is involved,

avoidance offenses involve the highest proportion of non cooperation. The

offenders generally tried to conceal evidence and were occasionally verbally

abusive, but there were no incidents of threatening or assaultive behaviour.

In sum lobster violations within Nova Scotia have continued to rise

more sharply than offenses dealing with other species, particularly within

the last decade. In districts 3 and 4 A and B a dramatic increase in lobster

violations began in the early 1980s and has continued up to the present

time. About three-quarters of the violations in these two districts were

committed by commercial fishers discovered through.patrols - of

enforcement personnel assigned to the Department of Fishers and Oceans.

Approximately 6 out of every 10 infractions were for either illegal fishing

or having in ones possession undersized lobsters. In a small minority of

cases (about 2%) violent confrontations occurred between fishers and

enforcement personnel. However, in many more instances where fishers

were caught violating the regulations, some attempt was made to conceal

material, flee the scene, or obstruct fisheries officers in the performance of

their duties. At least 8 out of every 10 fishers apprehended were convicted

of their offenses and received fines averaging about $500. Enforcement

officers seized lobsters in 293 or 58 percent of the cases and fishing

equipment, boats or vehicles in another 155 or 32 percent of the cases they

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dealt with. Fewer forfeitures compared to fines were levied on convicted

fishers Ln these districts and suspensions of licenses have virtually been

eliminated as this power was removed (in 1983). from the Minister of

Fisheries and Oceans and placed in the hands of the courts.

Rule-breaking and violations of regulations and statutes have been

parallelled by overt social conflict between fishers and enforcement officers.

While sonie of the conflict has been engendered by quotas for offshore

lobstering, Loan Board policies, debt load, and the 200 mile economic zone

declaration, much of it has been centered on lobster limit regulations and on

the politics of fisheries enforcement (Apostle, Kasdan and Hanson, 1984;

Davis and Kasdan, 1984; Lobster Task Force, 1975; Atlantic Fishermen,

1986).

Trap tags and limits remain a sore point. For many lobster fishers the

regulations are thought to be unenforceable and unfair. They are

unenforceable because the tags are fragile and fall off, because the D.F.O.

does not have the personnel and resources to haul and-- check traps

systematically, and because they can easily be tampered with making it

near impossible to trace tags to traps to fishers (Scott and Tugwell,

1981:42). According to Kearney (1984:45), " fully 60% of 315 southwest

Nova Scotia lobster fishers interviewed thought that trap limits were among

the measures that could be least effectively enforced." They are thought to

be unfair because enforcement efforts clash squarely with communal

property traditions. Kearney (1984:50) notes "this enforcement measure

(enforcing the rule that fishermen can only have their own traps with their

own tags in their boats) seriously conflicts with a community tradition of

returning lost or stray traps that are found by others to their rightful

owners. Thus a community service has been transformed into an act

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McMullan/Perrier 27

subject to prosecution in a court of law." Out of 530 southwest Nova Scotia

lobster fishers interviewed almost 50 percent expressed "dissatisfaction" to

great dissatisfaction" with government measures to control lobster fishing.

Only 27 percent felt government enforcement was fair and consistent. A

predominant view was that enforcement was biased and unequally applied

with some districts rarely seeing fishery officers, while other areas were

subjected to intense policing. (Kearney, 1984:35, 46).

The 'Pubnico Affair' of May, 1983, is exemplary. The central issue was

the enforcement program of the D.F.O. as it related to trap limits. Like the

spring of 1982, D.F.O. patrol boats began a concerted effort to remove or cut

off untagged traps in the water. Hardest hit were fishers in districts 4A and

4B where the use of extra traps was highest. By the middle of April an

estimated 240 untagged traps had been seized and countless others

destroyed. The fishers and especially the Bear Point Shag Harbour - Woods

Harbour Fishermen's Associations (BSWEA) pressed the points that the

plastic tags were too weak to withstand bad weather and that-there . were

insufficient replacement tags. They also complained about the way in which

gear was monitored. Grady and Sacou man (1983:4) noted, "on the hauling

of gear, the fisheries patrol men weré. totally ill-equipped to handle the

gear. They put it out in a ball instead of where it was supposed to be

put...in a lot of cases, the fishermen claimed they were removing tagged

gear ...so this thing was beginning to build and build." Relations between

fishers and officers deteriorated further when fishers occupied the D.F.O.

officers in Yarmouth to protest the lobster enforcement measures. An

R.C.M.P. riot squad was called in to quell the 50-75 Shelburne County fishers

(Kearney, 1984:9).

Imo. rot 1.4 tia.w.enz lei- 210

The lobster fishery, not for the first or last time, came before the

attention of the country.5 Charges of poachers and pirates abounded. The

media spoke of "lobster wars", "black market fisheries" and "coastal

communities on trial". Fishers claimed "injustice " and "harrassment". By

early May, all efforts to calm the situation had failed. A small replacement

tag allocation (25 tags) and a four day moratorium were too little too late,

especially since the D.F.O. did not let up on its vigorous trap enforce ment

strategy. As one fisher observed, 'You could see the impact it was having

on the community, the social ramifications. Wives getting worried, husbands

coming home and not talking, keeping things to themselves, and children

not knowing it. May I lth was, I guess, the climax of the whole thing"

(Grady and Sacouman, 1983:4). To the fishers, the enforcement of trap

limits by hauling gear contradicted informal, local-level management

practices based on fishers knowledge, experience and use of the resource,

and violated 'their' rules that no one may handle another's traps once they

are set, since the location of sets and the length of time between hauls are

considered crucial to lobstering. This "unauthorized hauling both violates

these principles and threatens the fishermen's live lihood." (DeWolfe,

1974:49: Davis and Kasdan, 1984:119)

As a consequence of changed enforcement strategies, one hundred

fishers chased, attacked, burned and sank two D.F.O. leased patrol boats.

Fifty-two charges were brought against thirteen fishers, including nine

counts of piracy. Verbal abuse, threats and minor assaults did occur, but

more importantly, the D.F.O. in the short term, responded to the crisis with

increased trap hauling and armed vessels. Anger and frustration were met

with state coercion. As Davis and Kasdan (1984:115-116) aptly remarked,

"this collision and conflict was not new." It was part of "frequently repeated

McMullan/Perrier 29

pattern", whereby property and jurisdictional claims are Struggled over. On

the one side are the fishers with their informal management practices, their

folk knowledge about the coastal resource zone and their belief that they

have a 'right' to fish the property-in-common. On the other side are the

state experts, administrators and enforcers who rely on science, rationality

and formal rules, including the right to withdraw or restrict privileges to

valorize fisheries development. The politics of the harbour communities

and the politics of the federal state do not mesh. Policy making or increased

enforcement has been met with defiance, law-breaking, counter

mobilizations, meetings, growing frustrations, more meetings, entrenchment

of positions, direct action, social conflict, and state sanctions including

'outlawing' and 'criminalising' fishers practices. In this sense regulation,

illegality, and confrontation is a permanent and potentially violent dialectic

in which illegal fishing and direct confrontation may be viewed, in large

measure, as responses to powerlessness (Davis and Kasdan, 1984: 116, 121).

On both sicles there is a seemingly never-ending attempt to renegotiate the

social relations of production, to probe the limits of legal regulation, to see

what can be gotten away with and tolerated. On balance over the last

century the flow of this continuous conflict has, of course, favoured the

fortunes of state property management and private property ownership.

ENFORCING FISHERIES LEGISLATION

Despite the coercive capacity of the D.F.O. in regard to the Pubnico

affair, the repertoire of state enforcement and penality are by no means

certain or uniform. The prosecutorial records that we analyzed, and the

diagnostic examples of conflicts that we reported, are the visible

manifestations of state diligence, organization and competence. They are

useful because they provide us with an anatomy of conflict in the lobster

mcmtnian/Perrier 30

fishery: They may be taken as evidence of state enforcement at its most

efficacious. However, the statistics and the case examples are but the tip of

an iceberg. There is without doubt a large 'dark figure' of fisheries illega lity

and interpersonal conflict - a multitude of undetected, unrecorded and

unknown violations and an orrery of unreported abuse and violent

encounters between fishers and enforcement officers. As members of the

Lobster Advisory Committee of district 4A observed in 1986, "the Federal

Department does not have the proper resources to enforce a 400 - trap limit

for each fisherman". They seem as a result of the burning of the boats to

have "no real desire to enforce the limit....because of the fear of a political

backlash...." Meaningful enforcement of lobster regulations is further

hampered by the presence of a legal system which is weakly supportive of

D.F.O. initiatives. Prosecutions and convictions on trap limit violations have

been infrequent and the types of penalties ann.ounced by the courts "do not

act as a deterrent to further violations". The difficulties of enforcing lobster

regulations without legal institutional support combined with increased

competitiveness among fishers is a recipe for trouble. According to the

Advisory Committee, fully 20 percent of southwest Nova Scotia lobster

fishers in district 4A now set up to 700 traps. They concluded, "if

enforcement is neglected, soon more and more fishermen will have to cheat

and the resource will pay the price....(Atlantic Fisherman, 1986 2/19:2).

Our survey of all the D.F.O. fishery officers (districts 3, 4A and 4B)

confirms the enforcement difficulties and the conflictual character of the

lobster fishery in southwest Nova Scotia. Of the fifty fishery officers we

interviewed, 64 percent of them had previous experience as both fishers

(42%) and law enforcement officers (22%), and 71 percent of them lived in a

fishing community. Fourteen of the fifty were classified as part-time

MeNlullan/Perrier 31

employees even though they were frequently hired as regulars from year to

year. The mean length of time working as a fishery officer was almost ten

years. As Table 17 shows, fishery officers ranked their duties as clerical

first followed by enforcement and license administration. Conservation,

public education and habitat protection were duties rarely mentioned by

officers as having priority over other tasks.. Sixty-one percent of the

officers ranked the lobster fishery as their first priority. The mean

percentage of time spent on enforcing lobster regulation was 36 percent.

Forty-one percent of the officers said that lobster regulations were enforced

predominantly against non-fishers, 39 percent indicated that commercial

fishers were the main target of enforcement and 20 percent said they were

enforced against both groups equally. Table 18 indicates an asymetrical

ranking of lobster violations by commercial fishers and non-fishers. For

commercial fishers, officers ranked trap limits first followed by undersize

lobsters, use of illegal gear and closed seasons. For violations committed by

non-fishers the pattern was reversed. Violations of closed seasons was

ranked first followed by illegal gear, undersize lobsters and finally trap

limits (really theft of traps).

Most of the officers stated that there were major constraints on

lobster enforcement. These stemmed principally from three sources as

indicated in table 19. The majority of officers pointed out that

orgaaizational difficulties such as inadequate numbers of personnel,

insufficient or obsolete equipment, restricted budgets and complex and

confounding rules and regulations were primarily responsibile for inhibiting

their capability. This contributed to a skeptical belief among officers (44%)

that D.F.O. was not committed to eliminating fisheries violations. Almost a

third of the officers described their working relationship with D.F.O. as "not

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good" to "poor" and 76 percent stated that bureaucratic "red tape" was a

serious problem diverting much of their enforcement and conservation time

away from surveillance and protection work and into clerical duties

involving registration, report writing and statistical compilation.

Approximately one-third of their working time is now taken up with office

work. More than half of the officers (39) who answered the questions about

management, indicated that they were "not that well", or "poorly" managed.

Most seemed to feel the problems resided in regional or national

headquarters, and 22 out of 29 officers said that Halifax and Ottawa offices

were unfamiliar with the difficulties they faced in enforcing lobster

regulations. The remaining 21 officers declined to comment or had no

opinion. So severe were the economic, technological and bureaucratic

restraints that 22 out of 33 officers said that it was not uncommon to to go

outside their mandate to do their job. This involved working on their own

time, doing stakeouts alone, using personal equipment, having friends or

family assist in enforcement work and modifying department rules and

procedures in order to "get results."

Difficulties arising from the fishers and their c.ommunities were

ranked second and third respectively. According to fishery officers, the

major problem was persistent overfishing followed by poor attitudes

towards conservation and protection of the resource. Fishers were

perceived as increasingly better equipped and organized which made

detection and apprehension at sea virtually impossible. Indeed many

officers observed that by and large they did not have the vessels,

equipment, and communication systems to enforce the law and regulations

in the lobster sector. This was particularly problematic because officers also

noted that non-cooperation from fishers was growing and in some areas of

McMullan/Perner

the coast, entire communities supported illegal fishing. Community

members 'watched' the officers directly, or they alerted fishers of the

pending arrival of fishery officers by a series of signals or passwords. Fifty-

five percent of the officers believed that fishers and their communities

were unable or unwilling to control lobster poachers or overfishing.

While almost all fishery officers defined relations between themselves

and fishers as generally good, many of them were quick to point out that

conflict was an enduring and permanent feature of lobster enforcement. As

Table 20 demonstrates being abused verbally was ranked first in terms of

non-cooperative behaviour. Attempting to avoid detection by secrecy,

planning and nocturnal fishing was ranked second followed by threats to

the person. Evasion, by dumping illegal evidence or escaping the scene of

the violation were fairly frequent forms of non-cooperation. Threats to the

officers house, car, land, or truck were also mentioned by one third of the

fishery officers as a particularly troublesome form of non-cooperation.

Actual assault was ranked last, although the fear of violence was perceived

to be far in excess of actual behaviour. Twenty percent of the fifty fishery

officers believed they faced a lot of violence on the job, while 54 percent

said they had had minor fracases, fist fights, shoving matches, or threats by

use of knives, shotguns, or other make-shift implements, which they did not

classify as assaultive behaviour. However, four out of every five officers

believed that violence was increasing, and 83 percent of them stated that

they wanted to carry firearms as a regular part of their uniform. Conflicts

in the work world did 'affect personal privacy and home life. Table 21

shows that fishery officers felt that they were the subject of local gossip and

that their personal home life was disrupted by abusive and threatening

telephone calls and by work related infringements on -private and family

McMullan/Perrier 34

time. Threats to family members, however, was ranked low and rarely

occurred.

Most fishery officers admitted that detecting and apprehending

violators was difficult. Many referred to their enforcement work style as

symbolic - more a matter of "showing the flag" than persistent monitoring

or strict enforcement. They saw their actual surveillance capacity as

rudimentary and their overall control impact as diffuse and oblique.

The actual enforcement of fisheries law is rea,ctive and relies heavily

upon informants. Table 22 shows that officers used a number of methods,

chief of which were sea and shore patrols, and informants reports. However,

they clarified that most successful patrol work was as a result of 'tips' from

fishers and other community members who directed them to the offenders,

to boats and to the locations of illegal fishing. Routine patrols did not result

in a large number of detections or apprehensions. Communication with

other law enforcement agencies was reported as good. There were

exchanges of information between the R.C.M.P. and Lands and Forest officers

which did result in some detections and apprehensions, but these were not

normal or frequent methods of discovering illegal fishing. The 'Public Zenith

4000 Report -a-Poacher' telephone number was ranked last as a mode of

learning about poaching and overfishing, and most officers said that it was

unlikely to have much impact in the future.

Almost all fishery officers reported that there were 'trouble spots' in

their enforcement areas. The number and intensity of these 'trouble spots'

increased along the coastline from Halifax to Yarmouth and then declined

from Digby along the Fundy shore to Truro. These 'trouble areas' were

almost always community based where traditions of poaching or overfishing

were said to be enduring and where fishery officers received little

McMullan/Perrier 35

information or cooperation, and had few informants. One senior fishery

officer noted "in these harbours there are strong cultures,.... and it is part of

the local culture...they have much less tolerance of the law then anywhere

else. Not only fisheries law, but criminal law....They think they have a right

to fish even if they do not hold a license. They dont see it as a rare

privilege. I think it has a lot to do with the grandfather, father and the son

who always fished as they pleased." A second officer noted "poaching but

illegal fishing too... in the communities were talking about, they have been

doing it for years. They don't see anything wrong with it. The fact that

somebody else has made laws that say it is not right, they don't believe

that. We had no hand in making this law so we are not going to follow it.

That is the attitude." In some of the more hostile communities, fishery

officers are decidedliunwelcome. Their arrival is announced by the blaring

of car horns, visual signals, or telephone calls and their usual redeption in

the words of one officer is, "cold and stormy like the sea". Fishery officers

are reluctant to enter these harbours and many feel that they are losing the

"battle against illegal fishing". One fishery officer explained, "from an

enforcement point of view, everything is out of control....as a result of the

numerous charges we have had and the number being thrown out of

court....there is massive overfishing everywhere and it is not only in the

trouble areas it is now up and down the coast".

Problems of enforcement arising from their organization and from

relations with fishers and their communities are compounded further by

apparent difficulties with the legal/court system. Forty percent of the

officers reported that they were successful in obtaining prosecutions.

Thirty-nine percent said that they had "limited success", and 15 percent had

"no success at all" in prosecuting lobster violators. The reason for success in

McMullan/Pcwrior

4 out of 5 cases was that the fisher entered a guilty plea. In cases that were

contested in court, the rate of prosecution was said to be very low.

Accordingly, 54 percent of the officers indicated that the courts were

sympathetic to lobster violators, especially if they were commercial fishers.

Officers were especially critical of the lawyers who were appointed by the

Crown to handle their cases. Forty-two percent evaluated their legal

abilities as 'not good' to 'poor'. Fishery officers also felt that the judiciary

was suspect. While this varied from county to county, one - third of the

officers blamed their poor prosecution rate on the judges who either did not

understand the complexity of fishery law or \vho had a naive and biased

view of commercial fishers. One officer observed, "Justice , well he just

thinks because they are making a livelihood, they can do what they want

out there... every time you make a case he finds a reason to dismiss it, or

you lose.... Sure he has to live in the community and anyway his father was

a fisherman and that is where his sympathies are."

Despite the fact that fines, forfeitures and suspensions have increased

in the years from 1975 - 1986, many fishery officers (as illustrated by

Table 23) reported that the penalties did not deter the violations. The

resort to forfeitures of boats, equipment and vehicles was assessed most

favourable. Although 72 percent of the officers felt that forfeitures for

commercial fishers were adequate, a little over a third of them noted that

they were not being applied effectively by the courts. For non-fishers 2 out

of 3 officers believed that the type and amount of forfeitures were

adequate and actively being applied.

With regard to fines for commercial fishers over two thirds said that

they were inadequate, and even among the small percentage (6.5%) of

officers who thought they were adequate, the belief persisted that they

36

McMullan/Perrier 37

were not being applied by the courts. For non-fishers, about 63 percent of

the officers reported that the fines were inadequate, whereas only 33

percent were content with the fine sanction. In general, fines were thought

to. be too low. They did not offset the potential economic gain of fishing

illegally and so did not act as an effective deterrent. One officer observed

for commercial fishers "a minimum penalty under five thousand bucks is

nothing. It is bullshit. You know if I go out and catch five loads of fish and

make good money off it, the most you can burn me for is five thousand

dollars. OK, if you catch me, and ninety percent of the time we won't, then

it just the cost of doing business."

Suspension of licenses which applies mostly to commercial fishers was

thought by 3 out of 4 officers to be an adequate penalty, but 47 percent of

them also observed that it was not being used by the judicial system.

Twenty-five percent felt that it was an inadequate measure in the hands of

the courts. Almost all fishery officers felt that license suspension was the

quintessential punishment for commercial violations. As one officer

typically put it "the only way you are going to stop overfishing the trap

limts is by taking their licenses away for a week or two... Now that hurts

because it will cost them $25,000 to . $30,000...A. thousand dollar fine, they

just shrug that off, but not being able to get your gear in the water at the

start of the season, well that is something elsel" Pearse's observation about

deterrance seems apt: "An effective deterrent requires potential offenders

to perceive that action from both categories (i.e., detecting and

apprehending, and prosecuting and sanctioning) will be certain and severe

if they break the law. Detecting and apprehending offenders is futile if the

penalty that results fails to counterbalance the rewards of the illegal

activity. Similarly, enacting severe penalties is futile if the risk of detection

McMullan/Perrier 38

and apprehension is minimal." (1982:205). It would seem that in the Nova

Scotia Lobster fishery, neither the fishers nor enforcement officers perceive

that the legal system will be certain and severe towards violators.

In sum, the enforcement of lobster legislation and regulations is an

uneven, complicated and uncertain process. The D.F.O. may have the

capacity to mount periodic trap hauls and dispense special task forces to

'trouble spots', but they seem unable to actively and persistently survey

and monitor the fishery. They lack the coercive capacity to exact a uniform

compliance through their enforcement apparatus. The sheer geography of

the seas and coastlines makes effective social control extremely unlikely,

and the bureaucratization of the fishery officer's role ensures less and less

direct contact and involvement with the field. Social control in the lobster

fishery is distorted by numerical shortages and internal organizationai

strains, and is complicated in part by unenforceable rules, regulations, and

statutes, conflictual social relations with fishers and inconsistent external

judicial support for their 'enforcement regime'.

CONCLUSION

Over the past two decades conflicts and illegality in the lobster fishery

have been acute. Far from being the product of law versus lawlessness or a

"we versus them" attitude, conflict, poaching, and illegal fishing arises from

the collison of two distinct approaches to fish production and organization:

one based on common property and the "right" to fish and the other based

on state management and property relations and the ascribed "privilege" to

fish. In practice, the two viewpoints are divergent and conflictual. The

state, occupying the position of privilege donor has redefined the right to

fish and modified, restricted and withdrawn privileges. The lobster fishers

39 McMullan/Porricr

have not easily or willingly recognized the federal constitutional right of

jurisdiction over the resource as either valid or sensible.

Since the mid 1960s the Federal State has aggressively expressed its

constitutional right of jurisdiction on both Pacific and Atlantic coasts. It has

consolidated its earlier legislative and regulatory initiatives and taken new

incentives in areas such as development and management policy and the

establishment of limits on fishing effort. Limited participation through

licensing schemes and restricted entry, limited production through closures,

quotas and trap limits and increased preservation and control through

increased periodic enforcement measures have set up a series of collisions

with the modus operandi of lobster fishers and the taken-for-granted

fishing practices of local harbour communities (Barrett, 1987; Davis and

Kasdan, 1984: McMullan 1984, 1987). Not only has confrontation become a

persistent pattern of interaction between small boat lobster fishers and the

state, but as well widespread illegal fishing and poaching have become what

Scott- (1986:18) terms a "routine form of everyday resistance" part of the

ongoing process of developing, testing and renegotiating the terms of

harvesting and production. While it cannot be said that overfishing or

poaching are particularly 'popular' social activities among fishers, it is the

case that they have a long history and some measure of local support and

tolerance. By their calculated carefulness • and secrecy they persevere in

part, the on-stage theatre of power which dominates social relationships

within the fishery. Moreover, and as is typical of rural conflict, they contain

the possibility of demonstrations, riots, open violence and arson as the

incidents in Shelbourne, Yarmouth and Pubnico so tellingly and as the

everyday accounts of enforcement officers so revealingly indicate and

testify.

McMullan/Pcrrier 40

The 'Achile's Heel' of state power is the social context of its

enforcement. Despite the elaborate artifice of fishery laws and regulations,

the D.F.O. is a limited institution for social control. The translation of law

into effective practice has proved to be uncertain and aggravating. The

State can seldom enforce its cumbersome collection of closed areas, seasons,

size limits, quotas, trap numbers and other gear restrictions. The ad hoc

style of trap limit policing combined with the aforementioned government

organizational strains have bolstered the view, among fishers, that the state

is uncaring or unable to do its work effectively.

The consequences are telling. Ideologically, the state is perceived as a

negative power: defining limiting and disciplinary. Practically, it is

evaluated as little match for a defiant fleet of thousands. The irony of social

control in the lobster fishery is that it engenders what is wishes to avoid,

less credibility, more conflict and increased illegality.

Maritime Provinces Lobster Landings (1870- 1960)

Landings (Million lb.)

100 T

90

80

70

60

50

40

30

20

10

0

18 18 18 70 75 80

18 18 18 85 90 95

4 I . McMullan/Perrier

FIGURE 1

i t ' lilt I I I

19 19 19 19 19 19 19 19 19 19 19 19 19 00 05 10 15 20 25 3033 40 45 50 55 60

Year

Source : Wilder, D. G. 1965. "Lobster Conservation in Canada", Rapp. P. -V. Reun.

Cons. Perm. Int. ENplor. Mer 156, p.21.

1 42.

1

1 1 1

1 1 1 1

McMullan/Perrier

Figure 2: Lobster Fishing Districts, Size Limits, and Seasons 1899

New Brunswick

Area 4 District Size Limit Open Season

1 9" Dec.15-May 30 2 10.5" Jan. 15-June 29 3 8" Apr. 1 -June 30

8" May 1 -July 30 5 6" May 25-Aug. 10 6 8" Apr. 20-July 10

Source: DeWolf, G. 1974. The Lobster Fishe of the Maritime

Provinces: Economic Effects of Regulations. Fisheries I Board of Can., Bulletin 187, Ottawa: Enviroment Can., p.22

1 1 1

1 1 1

— Nova Scotia

-- New Brunswick

— Prince Edward Island

•• Maritimes

30

25

20

($ Millions) 15

10 ..'•

McMuIlan/Perrier 4 3 .

FIGURE 3

Landed Value of Lobsters for Maritime Provinces (1920-1970)

O I t t i t

19 19 19 19 19 19 19 19 19 19 19 20 25 30 35 40 45 50 55 60 65 70

Year

Source: Deiolf, G. 1974.The Lobster Fisher y of the Maritime Provinces: Economic

Effects of Regulations" Fisheries Research Board of Canada, Bulletin 187, Ottawa:

Environment C Canada.

DE ning ne rietritirnp

New Brunswick

Area 1

McMullan/Perrier 44.

FIGURE 4

Area 4A/ ( Area 6A Area 58 Area 5A 1

Source: Pringle, J. D. et. al. 1903 . An Overview of the

• Management of the Lobster Fisheru in Atlantic Canada. p. 5.

f

No. of

Charges

90 T

80

70

60

50

40

30

20

10

Lobster

Groundfish

Eg Salmon

D Trout

D Clams

9 Scallops

0

McMullan/Perrier 4 5 .

FIGURE 5 Number of Charges by Selected Species for Nova

Scotia (1975-82)

1975 1976 1977 1978 1979 1980 1981 1982

Year

Source : Dept. of Fisheries and Oceans. Prosecutorial Reports 1975-82, Halifax, N.S.

McMullan/Perrier 46.

TABLE 1

NUMBER OF LOBSTER CANNERIES PER MARITIME PROVINCE FOR SELECTED YEARS BETWEEN 1873 AND 1978

Year Nova Scotia New Brunswick Prince Edward Island Total

1873 43 24 . - 67 1890 133 100+ 98 331+ 1892 182 185 212 579 1900 277 237 246 760 1910 214 185 187 586 1925 139 144 148 431 1939 - - - 191 1944 39 49 49 137 1978 2 11 10 23

Source: Pringle, J.D. et. al., 1983. An Overview of the Management of the Lobster Fishery in Atlantic Canada. Can. M2.."-.-Rep.-Fish. Aquat. Sci. 170:vii, p. 103.

- McMullan/Perrier

TABLE 2

LANDED VALUE OF LOBSTERS FOR MARITIME PROVINCES BETWEEN 1920 AND 1970 ($ MILLIONS)

YEAR NOVA SCOTIA NEW BRUNSWICK PRINCE EDWARD ISLAND TOTAL

1920 2.8 0.7 0.7 4.2 1925 2.1 0.8 0.7 3.6 1930 2.3 0.7 0.5 3.5 1933 1.2 0.5 0.4 2.1 1935 1.9 0.6 0.5 3.0 1937 2.3 0.7 0.5 2.9 1940 1.5 0.5 0.4 2.4 1945 5.8 1.9 1.5 9.3 1950 7.0 2.6 2.0 11.6 1955 9.1 2.9 2.3 14.3 1960 8.2 4.1 , 3.2 15.5 1965 13.6 3.8 5.2 22.6 1970 14.3 4.7 6.2 25.3

Source: DeWolf, 6. 1974. The Lobster Fishery of the Maritime Provinces: Economic Effects of Regulations. Fisheries Research Board of Canada, Bulletin 187, Ottawa, Environment Canada, p. 24.

47.

48. McMullan/Perrier

TABLE 3

PERCENTAGE DISTRIBUTION OF GROSS LOBSTER RECEIPTS PER ENTERPRISE I3Y LOBSTER DISTRICT IN MARITIME PROVINCES FOR

1973

• Lobster Gross Receipts(%) District 0-$999 $1000 $5000 $10000 $15000 Average($)

$1999 $9999 $14999 $34999

1 26 47 15 8 4 4,092 3 40 40 17 2 -* 2,592 4 26 34 18 10 12 5,988 5 46 52 1 - - 1,435 6A 43 57 - - - 1,354 68 46 48 5 - - 1,654 7A 73 26 1 - - 818 7C 38 69 4 - - 3,802 8 25 61 13 - - 2,801

Maritimes 30 47 17 4 3 3,670

* (-) indicates less than 1 percent.

Source: Statistics Branch, Fisheries and Marine Service, Maritime Region, Dept. of Environment, Halifax, Nova Scotia.

MCMullan/Perrier

TABLE 4

Selected Lobster Regulations for Districts 3 and 4 (1957-1977)

Year Regulations District 3 District 4

1957 Closed Seasons Jan.1-Lest Day Feb June1- Nov.30 +July 21- Oct.14

1968 Minimum Lobster Length 33/16 33/16

DiYiSii7/7 of Disirict 4,4 45

1969 Trap Limit 300 375 250 Minimum No. of Traps For Categor,y A Vessel 75 75 75

1977 Maximum No. of Traps For category A Licence 300 375 250 Maximum No. of Traps For Category B and C Licence 90 113 75

Source: McMullan, J. et. al. 1987. Regulation and Illegality in the Nova Scotia Fishery. Report of the A.I.C. Halifax, N.S. p. 60.

49.

McMullan/Perrier

TABLE 5

IMPORTANCE OF THE LOBSTER FISHERY IN DISTRICTS 3, 4A AND 46 (SOUTHWEST NOVA SCOTIA)

1978 1986 CHANGE

Metric Tons of all Fish landed in Scotia-Fundy Region 522,975 483,706 -7.5

Metric Tons of Lobster landed in Scotia-Fundy Region 5,133 14,931 191.0

Metric Tons of Lobster landed In Districts 3, 4A and 48 3,133 12,741 309.0

Value of all Fish landed in Scotia-Fundy Region ($) 202,046 411,011 103.0

Value of all Lobster landed in Scotia-Fundy Region ($) 27,817 127,177 357.0

Value of all Lobster landed in Districts 3,4A and 48 ($) 22,083 96,434 337.0

Source: Adapted from Dept. of Fisheries and Oceans Publications 1978-86.

50.

District Suspensions N %

McMullan/Perrier 51.

TABLE 6

LICENCE SUSPENSIONS IN LOBSTER DISTRICTS 1 -8 (1971 -74)

1 3 1.8 3 1 .6 4 38 22.2 5 9 5.2 6A - - 6B 13 7.6 7A 1 .6 76 47 27.5 7C 23 13.5 8 36 21

TOTAL 171 100

Source: Dept. of Fisheries and Oceans, 1975. Preliminary Report -Lobster Fisheries Task Force, p. 75.

TABLE 7 1

1

McMullan/Perrier 52.

NUMBER OF CHARGES BY SELECTED SPECIES FOR NOVA SCOTIA (1975-82)

SPECIE YEAR 1975 1976 1977 1978 1979 1980 1981 1962

Lobster 61 50 63 48 58 67 43 90 Groundfish 47 26 11 9 16 24 17 7 Gaspereau 5 11 4 5 1 - 2 3 Salmon 31 30 28 55 35 44 22 32 Trout 12 18 18 22 18 15 31 23 Crab - - - - 1 - 1 1 Smelt 7 - 3 2 35 11 3 6 Clams 10 20 7 6 17 30 29 18 Oysters 1 - - 6 - 2 - 2 Scallops 7 3 19 9 15 11 22 13

TOTAL 181 158 153 162 196 204 170 195 Source: Dept. of Fisheries and Oceans. Prosecutorial Records 1975-82,

Halifax, N.S.

1

McMullan/Perrier

TABLE 8

Type of Lobster Violations in Nova Scotia (1975-82)

Type of Offence Year 1975 1976 1977 1978 1979 1980 1981 1982

Illegal Fishing 15 18 20 22 15 12 17 35 Undersized Lobsters 21 19 32 14 24 38 20 18 Fishing Without A Licence 6 1 1 1 3 5 5 12 Non Registered Vessel 1 1 1 - 2 - - 7 Untagged Traps 6 - 1 3 1 3 - 1 CFPA - - - 1 - - - - Fishing On Sunday 3 1 - 1 2 2 1 3 Possession During Closed Time 4 - 4 - 4 1 - 3 Berried Lobsters 1 1 1 - 6 2 - 7 Unlicenced Vessel 1 1 - - - - - 1 Scuba Diving For Lobster 1 - -' - - - - - Leaving Shore Early - 1 - - - - - - Fishing Before Seasons Opens 1 - 1 - 1 - - - Fishing In Another District - - - 1 - - - - CFPA Dumping 1 - - - - - - - Illegal Gear - - - 1 - - - 1 Parts Separated From Thorax - 1 - - - 3 - - Obstruction Of A Fishery Officer - 6 2 4 - - - 2 CFPA Fishing In Canadian Waters - - - - - 1 - -

53.

Total 61 50 63 48 58 67 43 90

Source: Dept. of Fisheries and Oceans. Prosecutorial Records 1975-82, Halifax, N.S.

54. McMullan/Perrier

TABLE 9

Number and Tgpes of Dispositions Associated with Charges for M1 Species in Nova Scotia (1975-62)

Year Dispositions 1975 1976 1977 1978 1979 1980 1981 1982

Fines Under $1,000 185 157 164 157 205 207 188 171 Fines $1,000-$2,000 - - - - 11 9 8 3 Vessels Forfeited 1 1 7 2 1 - - - Catches Forfeited 5 - 12 5 5 26 15 - Fishing Gear Forf ei ted 3 2 80 4 2 - - 1 Licence Suspended 18 8 17 14 14 30 26 12 Cases Dismissed - 2 3 10 19 21 19 38 Cases Withdrawn 1 1 2 1 - 11 4 3

i

Total 213 171 285 193 257 304 260 228,

Source: Dept. of Fisheries and Oceans. Prosecutorial Records 1975-82, Halifax, N.S.

McMullan/Perrier 55.

TABLE 10

$ Value of Dispositions Associated with Charges for All Species in Nova Scotia (1975-82)

Year Dispositions 1975 1976 1977 1978 1979 1980 1981 1982.

Fines 11,771 12,240 13,025 24,155 32,895 57,306 53,646 41,165 Vessels Forfeited 500 1,500 1,400 1,400 25 Catches Forfeited 4,350 - 19,519 14,710 16,715 50,754 10,007 - Fishing Gear Forfeited 50 150 2,820 2,318 4,000 - - 3,196

Source: Dept. of Fisheries and Oceans. Prosecutorial Records 1975-82, Halifax, N.S.

TABLE 11

Number of Lobster Licence Suspensions by Type of Suspension for Novo Scotia (1975-62)

- - - 1 - 1 3 2 - - - - - 1 1

- - - 1 - - - 18 8 17 11 12 13 15 5

- - - 1 - - - - i

18 8 17 12 12 15 21 7

McMullan/Perrier 56.

1 1 1

1 1 1

Type of Suspension

7 Deys 10 Deys 12 Deys 14 Deys 1 Year

Total

Year 1975 1976 1977 1978 1979 1980 1981 1982

Source: Dept. of Fisheries and Oceans. Prosecutorial Records 1975-82, Halifax, N.S.

1

1

N N

' McMullan/Perrier 57.

TABLE 12

Number of Lobster Violations for Districts 3, 4A AND 4E3 (1g76-1966*)

Year Violations Year Violations

1976 30 6 1982 54 10 1977 25 5 1983 49 9 1978 29 5 1984 82 15 1979 25 5 1985 99 19 1980 29 5 1986* 78 15 1981 31 6

Total 531 100

* Information fori 986 'includes file information from January to September.

Source: Dept. of Fisheries and Oceans. Prosecutorial Records 1975-86, Halifax, N.S.

CP (N)

(6) Sex Male 98.7% Female 1.3% (Nz:530)

McMullan/Perrier 58.

TABLE 13

DISTRIBUTION OF LOBSTER OFFENCES IN DISTRICTS 3, 4A AND 48 (1976-86)

Characteristics

0.0 5.6 4.7 5.5

(1) Year of Report 1975 1976 1977 1978

1979 4,7 1980 5.3 1981 5.8 1982 10.4

1983 9.2 1984 15.4 1985 18.6 1986* 14.7 (Nr.531)

(2) Statistical District of Report Shelburne/ Queens (County) 46.95g

Yarmouth/Digby/Annapolis/Kings 49.3% Lunenburg/Halifax/Colchester/Cumberland. 3.4% Other .4% (Nr.531)

(3) Lobster District of 3 4A 46 Other (a) offender's address 2.9% 57.6% 35.4% 4.2% (b) Community fqearest Offence 2.5g') 47.5% 33.8% 16.0%

(Nr.523) (N:479)

(4) Some Home/Offence Statistical Subarea Same 79.2% Different 20.8;',P) (Nr.331)

(5) Same Home/Offence Lobster District Same 94.8% Different 5.2% (N:330)

(7) Age of offender at Year of Report Under 20....4.8% 40-49...20.3% 20-29..33.15c1 .7 50-59...11.3% 30-39..23.8% 60-69...5.2%

Over 70..1.5T:, (N.-:478)

(8) Major First Offence Categories Illegal Fishing 28.2% Undersized Lobsters 33.4% Licence Violations 17.6% Time/Place Violation. 6.9% Avoidance Of f ence 4.0% Trap Gear Offence 9.9% (N7.524)

*Information for 1986 includes file information from January to September only. Source: Dept. of Fisheries and Oceans. Prosecutorial Records 1975-86, Halifax, N.S.

McMullan/Perrier 59.

TABLE 14

PROFILES OF MAJOR OFFENCE CATEGORIES IN DISTRICTS 3, 4A AND 45 (1976-86) Characteristics Illegal Undersize Licence Time/ Avoid Trop!

Fishing Lobster Violation Place Offence Gear A, ce. gz.' ce eo ev ce % ce ea

1. Season Open 11.8 43.0 44.9 46.1 42.2 34.0 (N) (110) (158) (09) (26) (19) (50)

2. Offender is a Commercial Fisher* 22.3 57.1 80.4 50.0 57.1 84.6

(N) (148) (175) (92) (36) (21) (52) 3. Age of Offender

Under 20 11.1 4.4 1.1 - - - 20-29 45.2 21.7 44.3 24.1 22.2 28.0 30-39 15.9 24.5 30.7 34.5 22.5 20.0 40-49 12.7 23.6 14.8 31.0 27.8 30.0 50-59 6.4 14.3 8.0 10.3 22.2 18.0 60-69 7.1 7.5 1.1 - 5.6 4.0 70 and Over 1.6 3.1 - - - -

(N) (126) (161) (88) (29) (18) (50) 4. Offender's Fishing

Boat Was Involved*14.9 51.4 84.8 41.7 71.4 84.6 (N) (148) (175) (92) (36) (21) (52)

5. Offender's Car or I

Truck Was Involved 25.0 15.4 3.3 5.6 14.3 3.9 (N) (148) (175) (92) (36) (21) (52)

6. Other Offender's Vehicle Was Involved 18.9 6.3 5.4 13.9

(N) (148) (175) (92) (36) (21) (52) 7. Number of People

Involved@

1 11.7 43.5 65.9 47.1 6.8 68.8 2 45.1 33.3 22.0 23.5 33.3 16.7 3 29.7 14.5 12.2 29.4 20.0 10.4 4 9.0 .7 - - 26.7 2.1 5 or More 4.5 8.0 - - 13.3 2.1

(N) (111) (136) (82) (17) (15) (48)

*Derived from the offence report and fishing licence data. *Includes only commercial boots with CFV numbers " Includes small boots, punts, skiffs, etc... 'without CFV numbers. @ Includes the accused and all those involved from the offence description, not just those charged

McMullan/Perrier 60.

TABLE 15

DEPT. OF FISHERIES AND OCEANS RELATED BEHAVIOR BY MAJOR OFFENCE CATETOR1ES _ Characteristics Illegol Undersize Licence Time/ Avoid Trop/

Fishing Lobster Violotion Ploce Offence Ger cr éo co

1. Locotion of DFO Contoct Onshore* 96.6 79.0 59.3 33.3 7.7 62.2 Offshore 3.4 21.0 40.7 66.7 92.3 37.8

(N) (88) (100) (54) (15) (13) (45) 2. Original Source of Information

Routine Sea Patrol 19.1 26.8 19.1 40.0 75.0 10.7

Other Seo Potrol* 9.5 41.1 45.2 30.0 - 42.9

Other DFO Source 11.9 9.0 14.3 10.0 8.3 Fisher, Citizen 4.8 8.9 9.5 20.0 - 10.7

Other 54.7 14.3 11.9 - - 35.7

(N) (42) (56) (42) (10) (12) (28) 3. Offence was

a follow-up - 1.1 5.4 - - 3.9

(N) (139) (172) (92) (31) (17) (52) 4. Backup was

Requested 12.8 .6 7.9 - - 2.0

(N) (141) (178) (89) (32) (19) (51) 5. Number of Fisheries

Officers Present 1 8.5 23.8 i 25.3 23.1 - 12.5

2 35.9 52.5 50.6 30.8 60.0 60.4

3 22.6 14.8 19.3 15.4 8.3

4 or More 33.0 9.0 4.8 30.8 40.0 18.7

(N) (106) (122) (83) (13) (15) (48) 6. DFO Patrol Boat

yens used 11.2 16.8 25.8 34.4 63.2 32.7

(N) (140) (179) (92) (32) (19) (52) 7. Plane/Helicopter

was uséd 2.9 - 1.1 - - -

(N) (140) (179) (92) (32) (19) (52) 8. Other Police Vehicle

was used 2.9 5.6 3.3 - 5.3 1.9

(N) (140) (179) (92) (32) (19) (52) 9. Officers used Concealed

Surveil 1 ance 93.8 39.7 30.2 33.3 25.0 32.1

(N) (81) (68) (43) (9) (8) (28)

* Includes boarding at dockside. e Includes speciol patrols such as routine lobster protection, scallop meat

counts, etc....

•■•

McMullan/Perrier 61.

TABLE 16

OFFENDER BEHAVIOR* BY MAJOR OFFENCE CATEGORIES

Characteristics Illegal Undersize Licence Time/ Avoid Trap/ Fishing Lobster Violation Place Offence Gear

cp cp

1. Everyone was Fully Cooperative 21.5 54.6 51.6 42.9 - 48.1

(N) (65) (66) (31) (7) (17) (25) 2. Attempts made

To Flee 20.3 2.0 9.6 50.0 5.9 4.6 (N) (59) (50) (21) (4) (17) (22)

3. Off ender(s) attempted to Conceal Evidencee 52.5 40.0 27.3 60.0 58.9 4.6

(N) (59) (50) (22) (5) (17) (22) 4. Of fender(s) refused to

Cooperate 32.2 12.0 27.3 40.0 35.3 22.7 (N) (59) (50) (22) (5) (17) (22)

5. Offender(s) lied/veithheld Information 10.2 2.0 9.1 - 17.7 4.6

(N) (59) (50) (22) (5) (17) (22) 6. Of fender(s) used foul

Language 15.3 2.0 13.6 60.0 11.8 14.3 (N) (59) (50) (22) (5) (17) (22)

7. Of fender(s) threatened DFO officials 5.1 - 40.0 - 9.1

(N) (59) (50) (22) (5) (17) (22) 8. Offender(s) assaulted+

DFO officials 5.1 9.1 - 9.1 (N) (59) (50) (22) (5) (17) (22)

*Based on researcher-coded analysis of written descriptions of the offence by the fishery officer. Note sample size is affected by the number of incomplete descriptions.

e Includes dumping and removal of evidence. + Includes cases where offender(s) were not charged with assault.

McMullan/Perrier 62.

6 TABLE 17

FISHERY OFFICERS PERSONAL RANKING OF DUTIES

Duties Fishery Officers' Ranking (N)

Clerical 1 97.6 (41) Enf orcement 2 95.7 (46) Licencing 3 94.6 (37) Conservation & Protection 4 76.4 (37) Public Relations 5 62.1 (29) Habitat 6 53.6 (28)

TABLE 16

FISHERY OFFICERS' PERSONAL RANKING OF LOBSTER REGULATIONS MOST FREQUENTLY VIOLATED

Lobster Regulations Violations Violations by by Fishers g; (N) Non-Fishers % (N)

Trap Limits 1 90.9 (44) 4 61.5 (13) Undersized Lobsters 2 72.1 (43) 3 68.4 (19) Use of Illegal Gear 3 59.1 (22) 2 89.3 (28) Closed Seasons 4 48.3 (29) 1 97.6 (42) Licencing (Person) 5 22.2 (27) 5 . 57.1 (14) Licencing (Vessel) 5 19.2 (26) 5 11.1 (9)

Rank % Origin of Difficulties

Nature of Difficulties

63. McMullan/Perrier

TABLE 19

FISHERY OFFICERS PERSONAL RANKING OF ORIGIN AND NATURE OF DIFFICULTIES HINDERING ENFORCEMENT OF LOBSTER REGULAT IONS

Dept. of Fisheries 1 Insufficient Manpower 69.4 ex Oceans Poor Equipment 12.2

Inadequate Budget 10.2 Complexitg of Regulations 8.2

(49)

Fishers 2 Overfishi ng 53.4 Poor Attitude towards Conservation 23.3 Non-cooperation 20.0 Better Equipped & Organized 3.3

(30)

Fisher Communities 3 Support for Illegal Fishing 70.0 Negative Attitude to DFO 30.0

(20)

McMullan/Perrier

TABLE 20

FISHERY OFFICERS PERSONAL RANKING OF FORMS OF NON-COOPERATION IN ENCOUNTERS WITH LOBSTER VIOLATORS

64.

Forms of Non-cooperation

Fishery Officers' Ranking (N)

Verbal Abuse 1 88.1 (42) Avoidance ,-)

4 83.9 (31) Threats to Person 3 74.3 (35) Evasion 4 63.0 (27) Threats to Property 5 51.5 (33) Physical Assault 6 13.9 (36)

TABLE 21

FISHERY OFFICERS' PERSONAL RANKING OF THE MANNER IN WHICH OCCUPATIONAL PROBLEMS AFFECT PERSONAL LIFE

Manner of Fishery Officers' Affecting Home Life Ranking (N)

Subject of Gossip 1 45.0 (40) Abusive/Threatening Telephone Calls 2 41.5 (41) infringement on Family Time 3 37.8 (37) Threats to Property 4 18.9 (37) Threats to Family 5 7.9 (38) Harassment of Children 6 5.1 (39)

McMullan/Perrier

TABLE 22

FISHERY OFFICERS PERSONAL RANKING OF METHODS USED IN DETECTING LOBSTER VIOLATIONS

Methods of Fishery Officers' Detection Ranking 57, (N)

Patrols 1 95.7 (47) Fisher Informants 2 93.6 (47) Other Law Enforcement Agencies 3 87.8 (41) Members of the Public 4 84.1 (44) Zenith 40000 5 32.1 (20)

TABLE 23

FISHERY OFFICERS' PERSONAL ASSESSMENT OF SANCTIONS FOR LOBSTER VIOLATORS

Type of Assessment For Fishers For Non-fishers Sanction of Sanctions

Fines Adequate & Applied 26.1 33.3 Adequate & Not Applied 6.5 4.4 Inadequate & Applied 63.0 60.0 Inadequate & Not Applied 4.4 2.2

(46) (45) Suspensions Adequate & Applied 26.2 9.1

Adequate & Not Apglied 47.6 27.3 Inadequate & Applied 9.5 45.4 Inadequate & Not Applied 16.7 10.2

(42) (11) Forf eitures Adequate & Appli ed 46.9 64.5

Adequate & Not Applied 25.0 9.7 Inadequate & Applied 12.5 16.1 Inadequate & Not Applied 15.6 9.7

(32) (31)

65.

McMullan/Perrier 66..

FOOTNOTES

1. Pringle et al. (1983) indicated that as early as 1890 the mean weight

of lobsters used in the canning operations was 45 kilograms, whereas

market lobsters were about 68 kilograms. This suggests that the

fishery no longer was based on older stocks of lobsters and that

upward's of ten lobsters rather than two or three were required to fill

a 45 kilogram can.

2. The following lobster districts were created with some changes made

in 1968 (4a and 4b), and 1982 (5a and 5b).

District 1

The area on and along that portion of the coast or waters thereof of

the Province of New Brunswick embraced and included within the

C.ounty of Charlotte, and the islands adjacent thereto, including the

Island of Grand Manan.

District 2

The area on and along that portion of the coast or fhP waters thereof

of the Province of New Brunswick embraced and included within the

County of Saint John.

District 3

The area on and along that portion of the coast or waters thereof of

the Provinces of New Brunswick and Nova Scotia embraced and

included within the County. of Albert, New Brunswick and those

portions of Cumberland and Colchester Counties bordering on the Bay

of Fundy and tributary waters, as well as the Counties of Hauts.

Kings and Annapolis the waters of the Annapolis Basin and Digby Gut, as well as the entrance thereto, and of that portion of Digby County

67 McMullan/Perrier

that is east of a line drawn north one-half east magnetic from the

eastern side of Burns Point, Digby County, Nova Scotia.

District 4A

The area on and along that portion of the coast or the waters of the

Province of Nova Scotia, embraced and included within that portion of

County of Digby that is west of a 1ine drawn north one-half east

magnetic from range markers placed by a fishery officer on the

Eastern side of Burns Point, Digby County, the County of Yarmouth

and that portion of Shelburne County that is west of a line drawn due

south magnetic from Baccaro Point, Shelburne County.

District 4B

The area on and along that portion of the coast of the waters of the

Province of Nova Scotia, embraced and included within that portion of

the County of Shelburne that is east of a line drawn due south

magnetic from Baccaro Point, Shelburne County, the Counties of

Queens,nuf-Lunenburg and that portion of Halifax County that is west

of Cole Harbour, including Cole Harbour to a point designated by

range markers placed by a fishery officer.

District 5A

The area on and along that portion of the coast or the waters of the

Province of Nova Scotia from a point designated by range markers

placed by a fishery officer at Cole Harbour, Halifax County, to a

straight line drawn 150 0 true from a point at Necum Point,

Guysborough, latitude 4457'18" North and Longitude 6209'05" West.

District 5B

The area on and along that portion of the coast or the waters of the

Province of Nova Scotia from a straight line drawn 150^ true from a

McMullan/Perrier 68

point at Necum Point, Guysborough County, latitude 4457'18" North.

and longitude 620905" West, to a straight line drawn east southeast

magnitude from Ragged Head, Guysborough County as designated by

two range markers placed by a fishery officer.

District 6A

The area on and along that portion of the coast or the waters of the

Island of Cape Breton, beginning at a straight line drawn due south

magnetic from Indian Point, Cape Breton, running northward to Cape

St. Lawrence, Inverness County, and westwardly to a straight line

drawn from a point in the Gulf of St. Lawrence five nautical miles

bearin.g 315 - true from a point at High Capes Inverness County as

marked by a fishery officer in Latitude 46-58'42" North longitude

6040'00" West, to the said point at High Capes, Inverness County,

and including St. Paul Island, Whycocomagh Bay, and that portion of

the waters of the Bras D'Or Lakes lying north of a straight line drawn

from Irish Cove, Cape Breton County, Nova Seetia-te--Alba Inverness

County, Nova Scotia.

District 7A

The area on and along that portion of the coast or the waters adjacent

to the Counties of Guysborough and Richmond in Nova Scotia south of

the Canso Cause -way and lying between a straight line drawn east

southeast from Ragged Point, Guysborough County, said line

designated by two range markers placed by a fishery officer, and a

straight line drawn south magnetic from Indian Rock off Point

Michaud, Richmond County, and including the waters and coastline of

Bras d'Or Lakes south of a straight line drawn from Irish Cove, Cape

Breton County to Alba, Inverness County.

69. McMullan/Perrier

District 7B

The area on and along that portion of the coast or the waters of the

Province of Nova Scotia and Prince Edward Island bounded by the

waters of the Gulf of St. Lawrence, including George Bay, and in the

said waters within the following boundaries: north of the Canso

Causeway, west of a straight line drawn from a point in the Gulf of St.

Lawrence five nautical mil bearing 115 true from a point at High

Capes, Inverness County, Nova Scotia as marked by a fishery officer

in latitude 465842" North longitude 6040'00" West to the said point

at High Capes, Inverness County, Nova Scotia, south of a straight line

drawn from a point in the Gulf of St. Lawrence five nautical miles

bearing 315' true from the said point at High Capes, Inverness

County, Nova Scotia to a point five nautical miles north magnetic from

North point Lighthouse, Prince Edward Island (the said point being at

latitude 4T0825" North and Longtitiude 6402'10" West); and as of a

line commencing at the Government Wharf, Pugwash Harbour, No-

Scotia and following he channel of Pugwash Harbour seaward to the

point of intersection with the line established by the range lights

situated on the southwest side of Pugwash Harbour (the said point

being in latitude 45-51'48" North and Longtitude 63-41'12" West),

thence along the said line to the point of intersection with a straight

line drawn from Bergman's Point, Cumberland County, Nova Scotia to

the entrance to Victoria Harbour, Queen's County, Prince Edward

Island (said point being at latitude 4553'09" North, and longitude

6341'49" West) and thence along the latter line to the said entrance

to Victoria Harbour.

70. McMullan/Perrier

District 7C

The area on and along that portion of the coast of the Province of New

Brunswick bounded by the waters of the Gulf of St. Lawrence North

and West of a line drawn from a point five nautical miles north

magnetic from North Point Lighthouse, Prince County, Prince Edward

Island (the said point being in latitude 470825" North, longitude

6402'10" West),; to a point marked by a fishery officer at Eel River,

Kent County, New Brunswick and West of a straight line drawn from

latitude 4708'25" North and longitude 6402'10" West, to latitude

4808'00" North and longitude 6402'10" West to the Provincial

boundary line dividing the Provinces of Quebec and New Brunswick.

District 8

The area on and along the coast or the waters thereof of that portion

of the Strait of Northunberland between a straight line on the

northwest drawn from Eel River, Kent County, New Brunswick, to a

point in the Gulf of---ft -haverence five nautical miles north magnetic

from Point Light, Prince Edward Island and thence in a straight line

to North Point Light, Prince Edward Island and a line on the south-

east commencing at the Government Wharf, Pugwash Harbour, Nova

Scotia, thence following the channel of Pugwash Harbour seaward to

the point of intersection with the line established by the range lights

situated on the south-west side of Pugwash Harbour, the said point

being in latitude 4651'48" North and longitude 63'41'12" West,

thence along the said line to the point of intersection with a straight

line drawn from Bergman's Point, Cumberland County, Nova Scotia to

the entrance to Victoria Harbour, Queens County, Prince Edward

Island, said point being latitude 45'53'09" North and longitude

7 1 . McMullan/Perrier

6341'49" West and thence along the latter line to the said entrance

to Victoria Harbour.

3. Prior to 1977, records of violations of fishing regulations by the

federal government were sporadically maintained. With the creation

of DFO, an attempt was made to centralize the collection of data at

regional headquarters. Fishery officers were required to submit

violation reports which, besides demographic and fishery-licence

information on the accused, included in most cases an open-ended

description of the particulars of the offence and follow-up

prosecution information including court disposition and sentence.

Offence records for Southwest Nova Scotia were maintained in the

Halifax regional office, with the records dating back to 1977. DFO

officials, however, were more confident about the inclusiveness and

the comprehensiveness of the reports in the period from 1980 to the

present. To ensure that all the i data available were collected,

researchers also examined files kept in local fishery offices, but

additional cases were found. The 531 offenses data thus represent

the most comprehensive and systematically-collected data about

offenses available. Unfortunately, there is no independent source of

offence data against which to check the inclusiveness of the cases,

and, of course, there is no way to control for variations in reporting

practices of individual fishery officers and offices.

While much of the information obtained was straightforward,

information concerning the particulars of the offence were in the

form of descriptions by fishery officers written shortly after the

offence. Two full time research assistants were hired and trained to

code the data, using a pre-coded research instrument. The major

McMullan/Perrier

limitation in this area appears to be the variability in the quality of

the original offence reports from officer to officer and from report to

report. In this regard, however, these reports are not unlike police

statistics (c.f. Silverman and Teevan, 1975; Nettler, 1984).

It is not completely clear what criteria were used to determine

how many reports were filed in a given situation. Generally, it

appeared that when two or more persons were charged, a separate

offence report was filed for each person, in much the same way that

crimes against the person are treated in the Canadian Uniform Crime

Reporting system. It is important to note, however, that in many

cases where only one person is charged, more than one person may

have been involved as illegal (and legal) fishing tends to be done in

small groups with the backing of the community. In addition,

violation reports are frequently the result of a number of previous

related incidents finally resulting in,a written report and chrge. They

obviously represent only the most serious offenses or those in which

it was felt that an official sanction was required. It is worth noting

that most fishery officers are recruited from the local area and have,

or develop extensive knowledge of fishing practices in the

co m munity.

Offenses that are reported by fishery officers may also involve

police officers and may be recorded by the police. Unlike the police,

however, who are mandated to report offenses regularly and

systematically to Statistics Canada, the data anlyzed in this paper are

collected locally by the Department of Fisheries and Oceans for its

own use and at this point there is no basis for comparison with other

regions or other studies.

72.

McMu llan/Perrier

The reason for this apparent 'cooperation between fishers and

fisheries officers may be because the enforcement of size regulations

for lobsters is the one area where state policy and fishers tend to

agree.

5. For one earlier example consider the mass demonstration in 1977 in

Shelburne, Shelburne County against the D.F.O. efforts to develop an

offshore lobster fishery. During the demonstration, fishers assaulted

the property of the fish buyer who was cooperating with the offshore

scheme, destroyed traps and threatened to burn and sink boats. The

events received local and national media attention. Indeed the issue

of offshore licenses for lobstering surfaced again in 1987 and 1988

when the D.F.O. issued four new licenses. The result was political

protests from inshore lobster fishers and the withdrawal of the

licenses.

6. In tables 17 to 23, the reader will find: (A) the number of people (N)

who included that subcategory in their response: and/or (B) the

percentage (%) of those that gave that subcategory its attendant

ranking. For example, in table 17, 41 respondents included clerical

duties in their response and 97.6 percent of them ranked it first.

73.

74. McMullan/Perrier

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ATLANTIC INSTITUTE OF CRIMINOLOGY

- OCCASIONAL PAPER SERIES -

It is the policy of the Atlantic Institute of Criminology to encourage and carry-out research and informational projects covering a broad range of criminal justice, socio-legal and social deviance topics. The purpose of this Occasional Papers Series is to disseminate the findings and recommendations of forums and studies„completed or still in progress, dealing with such issues, in the Atlantic Region. Since these matters normally have operatjonal implications for the professional community, every effort 1S ead.e , to .ensure the availability of these findings to thatqpudy.dranstituent'S: (especially those who have actively pàrticipated) as well'as'policy makers and academics in other ?parts of the country.

Dr. Robert C. Kaill Director

soLGEN CANADA

LIB,/11

ii ii iii I "

0000013082

.1

DA TE

KEN 7747

M3a 1988

KEN 7747 M3a 1988

Law, regulation, and Ill- egality

in the Nova Scotia fishery.

ti SUE 0 TO

Law, regulation, and ill-egality in the Nova Scotia fishery.

I I I I I I I I I I I I I I I I I I I