22 August 2005

Baker digs hole deeper - for herself

There were those who thought St. John's lawyer Averrill Baker would this week deal with accusations her columns on fisheries management have been short of facts.

They were disappointed if they thought she might actually develop an argument, based on accurate information, that went beyond trafficking in the preconceptions of the people who read her columns and then hold them up as proof that their views were correct all along.

This sort of intellectual incest may be satisfying to some, but in the court of public opinion, as in the court of law, the convincing argument is the one which is founded on fact and the law. Baker may be winning her case in the open line jury trial, but each week, her columns are assessed by the appeals division on a totally different basis. It is there where she is losing.

In the end, all Baker did this week is take some advice from her father and continue to flail away at the federal fisheries department with more innuendo.

The best defence is a good offense, supposedly.

The problem with that old saw is that when it comes to this sort of stuff, the effectiveness of the offense depends very much on the credibility of the attacker. Baker can persuade those who know very little of the facts, but anyone taking a deeper look finds her argument increasingly unpersuasive.

The fact is that Baker junior's credibility has taken a few serious hits in recent weeks through her columns.

Her latest column adds to the damage.

At the end of it, Baker writes:

"Any lawyer who has taken international law in the past 15 years will tell you that any coastal state signatory to the Law of the Sea can apply to the UN under article 76 to extend jurisdiction over the ocean floor out to 350 miles and prevent all dragging of the soil and subsoil on the ocean floor.

"Russia did it in the year 2000 and twenty other countries - most of them NAFO members - have applied to the United Nations to do so. Some are doing so to stop, and in other cases to regulate, the foreign fleets dragging the ocean floor outside 200 miles.

"Instead of advocating the same for Canada, the three major political parties have all bought into a concept unknown to law called "Custodial Management". They advocate that foreign nations be allowed to continue dragging the bottom as long as they abide by fishing quotas. Perhaps 30 years ago it would have made some sense, but under international law today it amounts to a cop-out.

"The federal Minister of Fisheries and Oceans recently claimed publicly - – I am told in response to my last column - that these 16 foreign nations are not really catching very much fish.

"If 60 large foreign factory freezer trawlers (some are 350 feet long) are not catching fish, then what in heavens name are they doing out there dragging the bottom of the ocean back and forth on our continental shelf? Did they lose something overboard?

"Are they operating gambling casinos at sea? Are they a part of an oceanic cruise line? Are the Russians dragging for Red October? Or would the Minister of Fisheries have us believe they all have a contract from Walt Disney to try to find Nemo?"

Let's take a look at some of this stuff, since it forms the core of Baker's latest attack on the fisheries department.

1. Under Section 76 of the United Nations Convention on the Law of the Sea, a signatory can lay claim to sub-seabed minerals where the continental shelf extends beyond the 200 nautical mile xclusive economic zone.

Here's a link to UNCLOS; go check it out for yourself.

At no point, does this section give a coastal state claiming such rights to the sub-seabed any right to interfere with activities related to the water-column. That's fishing, ladies and gentlemen, and as much as Ms. Baker can rail about the effect of dragging on the seabed, the treaty separates the seabed mineral resources from the wildlife in the watercolumn and on the seabed.

It doesn't take a single course at law school to read plain English and present it clearly and accurately. Nor does one have to agree with the UNCLOS; Canada's actions can only take place within the scope and context of international law.

Baker's contention is, to put it bluntly, WRONG, yet again when she suggests that Canada could lay claim to the whole continental shelf beyond 200 miles and thereby end foreign fishing.

Oh yes and while countries have applied, as Baker points out, she doesn't tell us if any country has actually been granted rights beyond 200 miles for managing fisheries.

2. B aker would never tell you this but here it ibecauseue it is accurate: Canada is already building the case for extending its claim to the sub-seabed minerals on the continental shelf beyond 200 miles. The feds have up to eight years after ratifying the treaty to make the claim, which means they have until 2011 to complete it.

3. Canada couldn't lay legal claim to the shelf beyond 200 miles before 2003 because Canada didn'ratifyfy the treaty until then. Notice how the facts of the matter here differ widely from the interpretation Baker applies. The position taken by the federal government isn't a cop-out, as Baker claims; it reflects the reality of the international legal regime governing the fisheries.

4. The last bit of Baker's column - the bit about casinos and Finding Nemo - is curious if for no other reason than it sounds an awful lot like the kind of sarcasm usually voiced by her father; I note this because in the past few weeks I have heard one too many people speculating that Senator Dad has been ghost-writing the columns for his daughter. To my mind that doesn't really matter since Senator Baker or lawyer Baker can be equally wrong, as a matter of facts.

This last section of the column is curious because it takes a potshot at the federal minister without - at any point - providing a single shred of factual information to back up either the claims made in this column or the claims made in previous columns by Les Bakers audaces.

What a reasonable reader is left with is merely more of the entertaining writing of a St. John's lawyer.

Entertaining, yes but ultimately unconvincing.

It ignores fact.

It ignores the law.

It presents instead a series of unsubstantiated claims and innuendo.

No matter how many times Baker repeats her arguments, they do not gain accuracy or credibility with the repetition.

Except among people who were already convinced of what Baker claims.

The problem for Baker is that those people are already in the minority, something that isn't likely to change.

The other problem for Baker is that the more she makes outrageous claims lacking in any substance, the more she generates a backlash against her argument.

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