Showing posts with label Newfoundland nationalism. Show all posts
Showing posts with label Newfoundland nationalism. Show all posts

10 March 2020

NL after the oil boom and hydro bust #nlpoli


Newfoundland and Labrador Historical Society

George Story Lecture and Annual General Meeting

Marine Institute - Hampton Hall


The Return of History?

Newfoundland and Labrador 
after the Oil Boom and the Hydro Bust


Dr. Jerry Bannister
April 30, 2020


Building on the themes established in A river runs through it (2012), Dr. Bannister will explore the changing roles of history since the province’s economic downturn. 

He will trace patterns in political culture and collective memory from the Williams era to the present day, as the province experienced the end of triumphalism and the return to a politics of loss. 

In discussing the causes and consequences of the Muskrat Falls crisis, he will examines the ebb and flow of Newfoundland nationalism over the past 20 years. Is this province breaking with its past or returning to its 20th century narrative?

A graduate of Memorial University and the University of Toronto, Dr. Jerry Bannister is an associate professor of History and Acting Director of the Marine Affairs Program at Dalhousie University.   

Born and raised in Newfoundland and Labrador, he is a past member of the Executive of the Newfoundland and Labrador Historical Society.

Recent books:
  • Elizabeth Mancke, Jerry Bannister, Denis McKim, and Scott See, eds., Violence, Order, and Unrest: A History of British North America, 1749-1876. Toronto: University of Toronto Press, 2019.
  • Melvin Baker, Jerry Bannister, and Christopher Curran, eds., Essays on the Legal History of Newfoundland and Labrador. St. John’s: Law Society of Newfoundland and Labrador, 2019.
  • Jerry Bannister and Liam Riordan, eds., The Loyal Atlantic: Remaking the British Atlantic in the Revolutionary Era. Toronto: University of Toronto Press, 2012
  • William R. Keylor and Jerry Bannister, The Twentieth-Century World: An International History. First Canadian Edition. Toronto: Oxford University Press, 2005.
  • Jerry Bannister, The Rule of the Admirals: Law, Custom, and Naval Government in Newfoundland, 1699-1832. Toronto: University of Toronto Press, 2003.
-srbp-

22 October 2019

The Difference between Then and Now #nlpoli


A few months ago, SRBP wrote a two-part piece that described the change in the way politicians, bureaucrats, and the public looked at management and control of offshore oil and gas resources.
It’s worth looking at this again in light of a couple of recent developments.

In broadest terms,  the provincial government’s original objectives in the negotiations that led to the Atlantic Accord – the one signed in 1985 – were: 
  • Provincial control and administration, 
  • Revenue that would end dependence on federal hand-outs, and
  • Local benefits.

Since 2003,  the provincial government has dropped provincial administration and control and local benefits from its list of expectations.  Revenue is the only concern left of the original ones and even that one has become simply money.  The notion that the revenue would disconnect the province from federal hand-outs has also gone by the boards.

The 2005 revenue transfer agreement between Ottawa and St. John’s – deliberately misnamed by the provincial government as the Atlantic Accord – was initially about a transfer similar to Equalization and equal to the amount of revenue the provincial government collected each year from the oil companies as royalties under the 1985 agreement.

The argument for the 2005 transfer was based on lies and misrepresentations.  For example, the provincial government sets the amount of revenue it collects from the offshore as if the resource was on land and within provincial jurisdiction. It gets all the money. Politicians and other people claimed that the provincial government only received as little as 15% of what it should get. 

That wasn’t true and, in the end, the 2005 arrangement did not change the Atlantic Accord at all.  Nor did it change the operations of the Equalization program.  The 2005 agreement simply transferred $2.6 billion to the provincial government from Ottawa.  The only connection to the 1985 agreement was that the federal and provincial government used oil royalties and Equalization as the means to calculate the amount.  

23 May 2017

The Newfie Thing #nlpoli

Facebook has become hugely popular in Newfoundland and Labrador and, not surprisingly, some creative and enterprising fellow came up with a running joke - these days called a meme - featuring a fellow in a sou'wester.

You will find it called "newfie word of the day". The text that goes with the picture involves a joke based on some mispronunciation of a standard English word or phrase and out of that comes some sort of joke.

The one above is an example.  There are dozens more.  The thing is quite popular as you can tell by searching the Internet for "newfie word of the day".

Memorial University's political scientist slash sociologist Jamie Baker has discovered that the guy in the picture isn't a Newfoundlander.  He's actually Czech.  The picture came from a post on a Northern Peninsula blog by cabinet minister Christopher Mitchelmore.  It's about a Screech-in ceremony in the Czech republic that Mitchelmore ran during a visit there on one of his numerous globe-trotting ventures.

Baker posted the link on Facebook and asked folks to give them their thoughts. Feel free to do so by sending him an email:  jbaker at mun dot ca.  Baker's also written about about nationalism and racism, if this interests you. He got some notoriety last week not for this "newfie" meme story but for one on a paper he wrote about young people's attitudes to the word "newfie." He interviewed 30 university students and found that among the young people, the word is either an insult or no big thing.  You can find a CBC story about it, one from Radio Canada, and one from NTV.

12 August 2016

The Supreme Court of Canada #nlpoli

When the Church Lady shows up,  you know your comment on the Internet has hit the mark.

The term comes from the self-righteous character made famous by Dana Carvey on Saturday Night Live and if there was a male equivalent, your humble e-scribbler would happily use it.  Church Lady comments are the ones where the person avoids the sharply-pointed substance of what you said in favour of scolding you for the way you said it.

Your humble e-scribbler scored two Church Lady responses on Twitter this week from two different on two different topics.

Score!

The one to start this post was about an opinion column by CBC's Peter Cowan about the federal government's decision to change the way it will solicit nominees for a vacancy on the Supreme Court.  There are three things about Cowan's column worth noting.

02 July 2015

The Great War and Newfoundland Political Memory #nlpoli

“It is sobering to think,”  historian Sean Cadigan wrote in the Telegram on Tuesday, “that the memory of the casualties of war has been used partially for later political purposes for almost a century.”

Cadigan was recounting the history of the ceremony on July 1 that started in 1917 to mark the anniversary of the battle in which hundreds of Newfoundlanders and Labradorians died in a few short minutes.
It is possible that, in the process of "remembering," we may be in danger of forgetting the real aspirations of the men of 1916 when we gather on Memorial Day tomorrow.
Sobering though it may have been,  Cadigan had no trouble using the corpses at Beaumont Hamel for his own purpose and that is where we begin. 

21 August 2014

Identity Crisis #nlpoli

Newfoundland is changing, Michael Crummey writes in the Newfoundland nationalists’ newspaper, the Globe and Mail.  House prices are climbing in St. John’s.  There are plenty of expensive restaurants around and people to eat the food and drink the wine sold there.

“But,”  says Crummey,  “while oil execs tuck into their gourmet fish, much of rural Newfoundland is falling deeper into a crisis that began with the cod moratorium in 1992.”

The whole province – Newfoundland and Labrador – is changing.  There is a difference between the changes around the provincial capital and the rest of the province.  Crummey says that a “generation from now,  what it means to be a Newfoundlander will be something altogether different” from what he calls the traditional Newfoundland of “isolated, tightly knit communities that relied on the fishery and each other for survival.”

All true stuff.  The place and its people are changing.  The problem with Crummey’s commentary is that he gets his timescales wrong and misidentifies the root of the change and its implications.

18 November 2013

Remembering… or not #nlpoli

The news release that announced a provincial commemoration of the 100th anniversary of the First World War includes right at the start a picture of two couples, one older, and a small child.

The photograph is curious.

Look closely at it.

01 July 2013

The Great War and Newfoundland Nationalism #nlpoli

This is a revised version of post that originally appeared on July 4, 2012.
___________________________________

Mark Humphries is an historian at Memorial University.  He spoke with CBC’s Chris O’Neill-Yates on July 1, 2012 about the impact of Beaumont Hamel on Newfoundland and Labrador.

Humphries does an interesting job of putting the 700 dead and wounded on that day into a larger context.  He likened it to 161,000 Canadian males between 19 and 45 years of age dying in 20 minutes today.

Then, in response to a question from Chris, Humphries turned it into a unifying event for the country.

12 November 2012

Some Thoughts on Politics, Myth, and Identity #nlpoli

Your humble e-scribbler saw a couple of comments last week that said the NDP town hall on Muskrat Falls was a good argument against having a referendum on the megaproject.  Some people were quite badly misinformed, so the commentary went, not just about Muskrat Falls itself but about the province’s electricity supply and demand.

Those observations are surprising.  They are surprising because we’ve had two whole years of relentless marketing by Nalcor about their project.  They are surprising because the provincial government has been trying to develop the Lower Churchill continuously since 1998.  There isn’t a single year since then when the provincial government, Nalcor and before that Newfoundland and Labrador Hydro have not been trying to find some way to get this thing done.

That’s almost 15 years of relentless public discussion.  And still people don’t know basic information.

Absolutely gobsmacking, that is.  Unless you think about public discussions over the past decade or so.

09 May 2012

A river runs through it #nlpoli

Jerry Bannister’s paper “A river runs through it:  Churchill Falls and the end of Newfoundland history” is now available in the latest issue of Acadiensis.

24 May 2011

A tourist in her own land

Lisa Moore writes fiction for a living.

For some inexplicable reason, someone thinks this qualifies her to write some special appreciations of  the world as it actually is, offered up as anything but fiction.

Like her 2005 documentary that compared Iceland and Newfoundland in Hard Rock and Water.  She based the piece on the simple – and simply preposterous – construction “Iceland = independent = prosperous/Newfoundland = not independent = not prosperous”. 

The whole idea was ludicrous well before events within three years of her documentary proved Moore’s thesis spectacularly wrong.  But that did not stop her from scaring up a few bucks to make the thing. Nor did it stop the Duckworth Street cognoscenti from flocking to see it and talk about its deep insights at the pubs and coffee shops they usually habituate.

14 November 2008

Free Newfoundland!

From a comment by Wallace Ryan on a cbc.ca/nl story:

Despite the ugly words of Canadians, Newfoundlanders and Labradorians are finally closer to our dream of returning to those pre-WWI days when we were a rich nation full of promise and bravery.

I think it's time for us to reassert our nationhood and reclaim our heritage that has been sullied too long by Canadians. The only way we are to survive the demographic time bomb that threatens to make Newfoundland and Labrador second class citizens in this supposedly equal confederation is to reconstitute ourselves as an independent nation.

I'm sick of hearing our proud people maligned and mocked by our so-called fellow Canadians. I'm not a Canadian. I'm a proud citizen of the nation of Newfoundland and Labrador.

Free Newfoundland and Labrador.
Vive Newfoundland et Labrador Libre!

Ah yes, the glorious days before the Great War.

Political corruption, religious segregation, poverty, disease, health care and education that rivaled anything found in a modern underdeveloped country.

Such a glorious place that a huge portion of the first volunteers were rejected because they did not meet the minimum requirements of being 5 ft 2 inches in height with a chest measurement of 35 inches.

Sheer heaven!

We must free Newfoundland.

We must free it, that is,  of such unashamed ignorance.

-srbp-

08 October 2008

Pattern Behaviour 2: Spot the Pitcher Plants

Provincial Conservatives love to astroturf. In fact they've had this latest astroturf run planned for some time.

They love to call radio programs and make comments in support of their leader, usually following talking points that are astonishingly similar.  It's supposed to appear like a giant groundswell of support for their leader's cause du jour;  some of it - like the insistence they aren't coached - gets kinda funny.

Within the past 24 to 48 hours, the number of Pitcher Plants has jumped dramatically. The ABC Astroturf is in full bloom.

You can tell them a mile away:

  1. They make repeated reference to "Premier Williams", pledge their support for him and praise him in the stereotypical pitcher plant fashion.  Most people don't have a need to do that;  Provincial Conservatives evidently do.
  2. They make repeated references to the need to "stand up for your province".  A recurring theme among Provincial Conservatives is that the province consists of one mass whose interests are identical and who must act in a corporate fashion under the leadership of a single individual in order to achieve victory over external forces.  That's the foundation of Provincial Conservative politics since at least 2003.
  3. They've been making repeated attacks on Fabian Manning.  Again, that hasn't been a common feature of the call-in shows to date.  Tonight it's all Fabe, all the time.  Despite the efforts to claim otherwise - nothing could be further from the truth - there's been a great deal of Family Feud energy directed to defeating Manning.
      • Dead give-away:  they all make reference to the same episode, namely Manning sitting next to Harper in the House.  They describe this episode suing similar terms and typically misrepresent what happened in the same way their Leader did originally. People who aren't Provincial Conservatives don't need elaborate rationales to vote against Conservatives.
      • Second dead give-away:  they praise any politician who has sided with their beloved "Premier Williams", usually referring to the individual as having acted in the best interests of his or her constituents.  To provincial Conservatives, their leader's decisions and the interest of the entire province are synonymous. (See Indicator 2 above)
  4. They take great care to distinguish between Conservatives and the Provincial Conservatives, which they insist on calling Progressive.  Only Provincial Conservatives need to make that distinction for some reason.  Liberals and New Democrats don't care.
  5. They turn up online making comments from behind a pseudonym.  In classic Provincial Conservative fashion, everything is about their leader. Note that the two comments here are from individuals who have a well-established pattern of behaviour presenting exactly the same kinds of comments offered here.  They didn't comment on the original post at all, suggesting that they weren't yet mobilized to start astroturfing.

-srbp-

12 October 2007

The constitutional fish, redux

or, the most expensive 15 codfish in the history of Newfoundland and Labrador.

Just how much did Rick Bouzan and George Nichol pee down the drain in fighting their conviction for violating fisheries regulations? Only their lawyer and their bankers know for sure but appeals all the way to the Court of Appeal don't come cheaply. The cost is even more burdensome when one considers that the constitutional basis for their original defence and the subsequent appeals could have been demolished by a second year undergraduate political science student equipped with a decent library and the stuff picked up in Poli Sci 2700 or whatever it is called these days.

For your weekend amusement and edification, following is the text of the decision in Bouzan and Nicols v. The Queen, delivered today by Mr. Justice Mercer of the appeals court on behalf of a three member panel that included Mercer, Mr. Justice Barry and Madame Justice Welsh.

For all you law students or aspiring lawyers out there, here is a sentence you never want to see in a judgment dismissing your appeal: "This argument is fallacious."

Ouch.

--text begins--

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL

BETWEEN:

RICHARD BOUZAN AND

GEORGE NICHOL APPELLANTS

AND

HER MAJESTY THE QUEEN RESPONDENT

Coram: Welsh, Mercer and Barry, JJ.A.

Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division, 200506T0157

Appeal Heard: June 22, 2007

Judgment Rendered: October 12, 2007

Reasons for Judgment by Mercer, J.A.

Concurred in by Welsh and Barry, JJ.A.

Counsel for the Appellants: T. James Bennett

Counsel for the Respondent: Paul B. Adams

Mercer, J.A.:

[1] The appellants were convicted of an offence under the Fisheries Act, R.S.C. 1985, c. F-14 arising from their participation in the groundfish food fishery. On appeal, as in the courts below, they challenge the constitutional authority of the Government of Canada to regulate the catching of fish for personal consumption within three miles of the coast of Newfoundland and Labrador going from headland to headland. The appellants assert that the constitutional authority in respect of such fishing is vested in the Province of Newfoundland and Labrador (Province).

Facts

[2] On September 20, 2004 the appellants were charged:

THAT they did on or about the 12th day of September, 2004, at or near Little Bay East, Fortune Bay, Newfoundland and Labrador, in NAFO Sub-Division 3Ps, being Canadian Fishery Waters, while engaged in the groundfish food fishery and fishing under the authority of an Atlantic Recreational Fishing License, failed to comply with a condition of that license to wit: did not tag codfish immediately after harvesting codfish, contrary to Section 22(7) of the Fishery General Regulations, thereby committing an offence punishable under section 78(a) of the Fisheries Act, R.S., c. F-14, as amended.

[3] Prior to trial the appellants gave notice they intended to raise a constitutional challenge. The constitutional questions, as amended, were as follows:

1. Does the Government of Canada have the jurisdiction to regulate the catching of groundfish, including cod, within three miles of the coast of Newfoundland and Labrador going from headland to headland?

2. If the Government of Canada has the jurisdiction to regulate the catching of groundfish, including cod, within three miles of the coast of Newfoundland and Labrador going from headland to headland, does that jurisdiction include the right to regulate the catching of groundfish, including cod, for personal consumption?

[4] Notice of the constitutional questions was given to the Attorney General of the Province. The Attorney General declined to intervene in the case.

[5] At trial the parties submitted an Agreed Statement of Facts which included the following:

- On September 12, 2004 the appellants held Atlantic Recreational Fishing licenses which had been issued by the Department of Fisheries and Oceans (Canada) for the recreational cod fishery (also referred to as the groundfish food fishery). The license conditions required that any cod caught was to “be tagged immediately after it is caught in the following manner: A non-used tag, issued with this license and valid for the NAFO Division being fished, must be affixed through the gill and mouth of each Atlantic cod. The tag must be properly sealed such that the tag cannot be re-opened or removed”. Fifteen such tags were issued with each license.

- On September 12, 2004 a fishing boat occupied by the appellants was inspected by fishery officers. That boat was then within 500 feet approximately of the shoreline of Fortune Bay near the community of Little Bay East which is in the Province. The appellants were found in possession of 29 codfish. Twelve of the codfish were affixed with tags issued to Mr. Nichol. The remaining codfish were not tagged. Fifteen of the codfish had been gutted and appeared to have been caught for some time.

- The fisheries officers told the appellants they were initiating an investigation, read them the standard police caution and advised them of their right to retain and instruct counsel. Both appellants stated they understood and did not wish to contact counsel at that time. Following that, and after being informed that all cod had to be tagged immediately after catch, Mr. Bouzan said “I didn’t read my license. It’s my own fault. I should have read the fine print”.

[6] No evidence other than the Agreement Statement of Facts was adduced at trial. The trial focused on the constitutional issues. The trial judge dismissed the constitutional challenge mounted by the appellants. He found that the Government of Canada has jurisdiction to regulate fishing within three miles of the coast of Newfoundland and Labrador and that jurisdiction extended to the regulation of the catching of cod for personal consumption. Given the clear admissions in the Agreed Statement of Facts the trial judge convicted the appellants. R. v. Nichol, [2005] N.J. No. 315.

[7] The appellants then appealed to the Supreme Court of Newfoundland and Labrador, Trial Division (Summary Conviction Appeal Court). The only issues argued by the appellants concerned the constitutional questions. The appeal was dismissed, the Summary Conviction Appeal judge stating:

[29] The trial judge concluded his judgment with this synopsis:

On entry into Confederation, Newfoundland assumed the same position as if Confederation had been achieved in 1867. As earlier discussed, this included recognition of exclusive jurisdiction over the fishery in the Federal Crown. There is no reason to distinguish between fishing for trade, barter or personal consumption.

[30] I am satisfied on the standard of correctness that applies to my review of the trial judge’s decision that his decision is right. He was alive to the arguments raised by the appellants and dealt with each in its turn. He concluded, and I agree with him, that the Government of Canada has exclusive jurisdiction in managing and controlling the Fisheries in all sea coast and inland waters of this province. I will explain further.

…..

[54] Richard Bouzan and George Nichol appealed their convictions in the Provincial Court for failing to comply with conditions in a recreational cod fishing licence requiring them to tag all cod fish immediately as they caught it. The appellants did not dispute the facts but challenged the validity of the legislation under which they were charged. In essence, the appellants claim that the Government of Canada has no jurisdiction to regulate catching fish for personal consumption within three miles of the coastline of Newfoundland and Labrador. The trial judge dismissed the appellants’ attack on the legislation.

[55] The trial judge did not err in his decision. There is no merit to the appellants’ claim, whether based on statute, the Terms of Union between Newfoundland and Canada, the case law, or the doctrine of Crown honour. The appeal is dismissed and the trial judge’s decision is affirmed in all aspects.

R. v. Nichol, [2006] N.J. No. 257, 25 C.E.L.R. (3d) 1 (NLTD)

Issues

[8] In this Court the appellants again raised the constitutional arguments which were analysed and rejected in the courts below. Leave was granted for the appeal pursuant to the provisions of s. 839(1) of the Criminal Code.

[9] The issues stated by the appellants in their factum were:

i. Do the Terms of Union create special status for the Province of Newfoundland and Labrador within Confederation?

ii. If so, does that special status derogate from Section 91 of the Constitution [Act], 1867, and in particular Sub-section 12, which deals with sea coast and inland fisheries?

iii. Do Statements on Questions Raised by the Newfoundland Delegation constitute a bilateral agreement between Newfoundland and the Government of Canada in addition to the Terms of Union?

iv. If so, does this agreement have any force and effect? If so, what is the effect of this agreement? Is it a warranty by the Government of Canada that survives signing of the Terms of Union?

v. If so, does this agreement provide a defence to the Appellants who have acknowledged that they were fishing for cod within three (3) miles of the coast of Newfoundland and Labrador?

[10] The respondent submitted that the appellants’ list of issues could be reduced to essentially one, namely:

“whether the Appeal Court erred in upholding the Trial Judge’s decision that the Government of Canada has the constitutional authority to regulate the recreational cod fishery in the territorial waters of Newfoundland and Labrador.”

[11] At the hearing before this Court counsel for the appellants agreed with that submission of the respondent. I will accordingly address the issue as so defined and then comment on the grounds of appeal.

Law and Analysis

[12] The appellants contend that under the constitutional arrangements whereby Newfoundland joined Canada in 1949 the Province’s legislative jurisdiction extends to control of the fisheries within three miles of its coast going from headland to headland. I am in substantial agreement with the thorough decisions of the courts below regarding that proposition and would therefore dismiss the appeal. The following summary of the constitutional position will explain the flaws in the appellants’ submissions.

[13] Under s. 91(12) of the Constitution Act, 1867 legislative jurisdiction over “Sea-coast and Inland Fisheries” was assigned to the Parliament of Canada. Prior to 1949 when Newfoundland joined Canada the extent of that jurisdiction had been considered by the Supreme Court of Canada and the Judicial Committee of the Privy Council.

[14] In Canada (Attorney General) v. Ontario (Attorney General) (sub nom. Reference re Provincial Fisheries), [1898] A.C. 700, the Privy Council considered the effect of s. 91(12) upon the allocation of Crown property between the provinces and the Dominion of Canada. It emphasized the distinction between proprietary rights and legislative jurisdiction and confirmed that the legislative jurisdiction conferred upon the Parliament of Canada would enable that legislature to seriously restrict the exercise of fishing rights. It stated:

22 Their Lordships are of opinion that the 91st section of the British North America Act did not convey to the Dominion of Canada any proprietary rights in relation to fisheries. Their Lordships have already noticed the distinction which must be borne in mind between rights of property and legislative jurisdiction. It was the latter only which was conferred under the heading, “Sea-Coast and Inland Fisheries” in s. 91. Whatever proprietary rights in relation to fisheries were previously vested in private individuals or in the provinces respectively remained untouched by that enactment. Whatever grants might previously have been lawfully made by the provinces in virtue of their proprietary rights could lawfully be made after that enactment came into force. At the same time, it must be remembered that the power to legislate in relation to fisheries does necessarily to a certain extent enable the Legislature so empowered to affect proprietary rights. An enactment, for example, prescribing the times of the year during which fishing is to be allowed, or the instruments which may be employed for the purpose (which it was admitted the Dominion Legislature was empowered to pass) might very seriously touch the exercise of proprietary rights, and the extent, character, and scope of such legislation is left entirely to the Dominion Legislature. The suggestion that the power might be abused so as to amount to a practical confiscation of property does not warrant the imposition by the Courts of any limit upon the absolute power of legislation conferred. The supreme legislative power in relation to any subject-matter is always capable of abuse, but it is not to be assumed that it will be improperly used; if it is, the only remedy is an appeal to those by whom the Legislature is elected. …

(pp. 712-713)

[15] That unequivocal position was affirmed by the Supreme Court of Canada in North v. Canada (1906), 37 S.C.R. 385 as follows:

Some questions were raised on this appeal by Mr. Wilson as to the legality of the condemnation on the ground that the fisheries along the coast belonged to the province and not to the Dominion and that the legislation for their protection should have been provincial and not Dominion. The simple answer to such objections is that the British North America Act, 1867, conferred upon the Dominion the exclusive power of legislation with respect to seacoast and inland fisheries and that the judgment of the Judicial Committee in the case of Attorney General of Canada v. Attorney-General of Ontario, determines affirmatively the exclusive right of the Dominion Parliament to make or authorize the making of regulations and restrictions respecting the fisheries of Canada.

(pp. 392-393)

[16] Several years later the Privy Council reiterated the Parliament of Canada’s jurisdiction in British Columbia (A.G.) v. Canada (A.G.) (sub nom. B.C. Fisheries Reference) (1913), 15 D.L.R. 308 in which it stated:

… By sec. 91 of the British North America Act, 1867, the exclusive legislative authority of the Parliament of Canada extends to all matters coming within (amongst other things) “Sea Coast and Inland Fisheries.” The meaning of this provision was considered by this Board in the case of Attorney-General for the Dominion v. Attorney-General for the Provinces, [1898] A.C. 700, and it was held that it does not confer on the Dominion any rights of property, but that it does confer an exclusive right on the Dominion to make restrictions or limitations by which public rights of fishing are controlled, and on this exclusive right provincial legislation cannot trench. It recognized that the province retains a right to dispose of any fisheries to the property in which the province has a legal title, so far as the mode of such disposal is consistent with the Dominion right to regulation, but it held that, even in the case where proprietary rights remain with the province, the subject-matter may be of such a character that the exclusive power of the Dominion to legislate in regard to fisheries may restrict the free exercise of provincial rights. Accordingly, it sustained the right of the Dominion to control the methods and season of fishing and to impose a tax in the nature of license duty as a condition of the right to fish, even in cases in which the property in the fishery originally was or still is in the provincial Government.

… when, by sec. 91, sea coast and inland fisheries were placed under the exclusive legislative authority of the Dominion Parliament, there was in the case of the fishing in tidal waters nothing left within the domain of the provincial legislature. The right being a public one, all that could be done was to regulate its exercise, and the exclusive power of regulation was placed in the Dominion Parliament. …

Their Lordships have already expressed their opinion that the right of fishing in the sea is a right of the public in general which does not depend on any proprietary title, and that the Dominion has the exclusive right of legislating with regard to it. …

(pp. 317-318)

[17] It is clear therefore that exclusive federal legislative jurisdiction over fisheries regulation was well established prior to 1949. It has continually been affirmed in recent years. For example, in Ward v. Canada (A.G.), [2002] 1 S.C.R. 569, a case arising in this Province, the Supreme Court of Canada considered the validity of federal regulations prohibiting the sale or trade of the pelts of young seals. In upholding the regulations McLachlin C.J. stated:

34 First, the preponderance of authority suggests that the fisheries power is not confined to conservation, nor to pre-sale activities, but extends more broadly to maintenance and preservation of the fishery as a whole, including its economic value. In The Queen v. Robertson (1882), 6 S.C.R. 52, Ritchie C.J. described the fisheries power as extending “to subjects affecting the fisheries generally, tending to their regulation, protection and preservation”. Accordingly, Parliament’s power extended to “all such general laws as enure as well to the benefit of the owners of the fisheries as to the public at large, who are interested in the fisheries as a source of national or provincial wealth” (pp. 120-21).

…..

36 The theme that the fisheries power refers to the resource was affirmed by this Court, per Laskin C.J. (dissenting, but not on this point) in Interprovincial Co-Operatives Ltd. v. The Queen, [1976] 1 S.C.R. 477, who wrote, at p. 495, that the federal fisheries power “is concerned with the protection and preservation of fisheries as a public resource”, extending even to the “suppression of an owner’s right of utilization”.

…..

41 These cases put beyond doubt that the fisheries power includes not only conservation and protection, but also the general “regulation” of the fisheries, including their management and control. They recognize that “fisheries” under s. 91(12) of the Constitution Act, 1867 refers to the fisheries as a resource; “a source of national or provincial wealth” (Robertson, supra, at p. 121); a “common property resource” to be managed for the good of all Canadians (Comeau’s Sea Foods, supra, at para. 37). The fisheries resource includes the animals that inhabit the seas. But it also embraces commercial and economic interests, aboriginal rights and interests, and the public interest in sport and recreation.

[18] The appellants agreed that as a general proposition the Parliament of Canada has exclusive legislative jurisdiction over the fisheries. They argued that the arrangements governing Newfoundland’s entry into Canada created an exception to the general proposition with respect to the fishery within three miles of the coast of the Province.

[19] Newfoundland joined Canada in 1949 pursuant to negotiated Terms of Union which were then enacted by the Parliament of the United Kingdom – U.K. 12 & 13 Geo. VI., c. 22 and by the Parliament of Canada “An Act to approve the Terms of Union of Newfoundland with Canada”, 1949 (Can.) 1st Sess., c. 1. The provisions of the Terms of Union relevant to this matter include Terms 3, 18(1) and (2), 22 and 31(g).

[20] Term 3 states that the statutes comprising the Canadian Constitution apply to Newfoundland as if it had been one of the original provinces, except insofar as the same are varied by the Terms of Union:

3. The British North America Acts, 1867 to 1946, shall apply to the Province of Newfoundland in the same way, and to the like extent as they apply to the provinces heretofore comprised in Canada, as if the Province of Newfoundland had been one of the provinces originally united, except in so far as varied by these Terms and except such provisions as are in terms made or by reasonable intendment may be held to be specially applicable to or only to affect one or more and not all of the provinces originally united.

[21] Term 18 addresses the continuation of laws. Those which were in force in Newfoundland immediately prior to its union with Canada continued in force subject to repeal or alteration either by the Parliament of Canada or the legislature of the Province according to their respective authority under the Canadian Constitution:

18. (1) Subject to these Terms, all laws in force in Newfoundland at or immediately prior to the date of Union shall continue therein as if the Union had not been made, subject nevertheless to be repealed, abolished, or altered by the Parliament of Canada or by the Legislature of the Province of Newfoundland according to the authority of the Parliament or of the Legislature under the British North America Acts, 1867 to 1946, and all orders, rules, and regulations made under any such laws shall likewise continue, subject to be revoked or amended by the body or person that made such orders, rules, or regulations or the body or person that has power to make such orders, rules, or regulations after the date of Union, according to their respective authority under the British North America Acts, 1867 to 1946.

(2) Statutes of the Parliament of Canada in force at the date of Union, or any part thereof, shall come into force in the Province of Newfoundland on a day or days to be fixed by Act of the Parliament of Canada or by proclamation of the Governor General in Council issued from time to time, and any such proclamation may provide for the repeal of any of the laws of Newfoundland that

(a) are of general application;

(b) relate to the same subject-matter as the statute or part thereof so proclaimed; and

(c) could be repealed by the Parliament of Canada under paragraph one of this Term.

…..

[22] Term 22 was the only Term under the heading “Fisheries”. It covered a discrete group of Newfoundland statutes which concerned the export marketing of salted fish. It provided for the continuation of those statutes for at least five years, unless the provincial cabinet requested an earlier repeal or alteration:

22. (1) In this Term, the expression “Fisheries Laws” means the Act No. 11 of 1936, entitled “An Act for the creation of the Newfoundland Fisheries Board”, the Act No. 14 of 1936, entitled “An Act to Prevent the Export of Fish Without Licence”, the Act No. 32 of 1936, entitled “An Act to Amend the Newfoundland Fisheries Board Act (No. 11 of 1936)”, the Act No. 37 of 1938, entitled “An Act Further to Amend the Newfoundland Fisheries Board Act, 1936”, the Act No. 10 of 1942, entitled “An Act Respecting Permits for the Exportation of Salt Fish”, the Act No. 39 of 1943, entitled “An Act Further to Amend the Newfoundland Fisheries Board Act, 1936”, the Act No. 16 of 1944, entitled “An Act Further to Amend the Newfoundland Fisheries Board Acts, 1936-38”, and the Act No. 42 of 1944, entitled “An Act Further to Amend the Newfoundland Fisheries Board Act, 1936”, in so far as they relate to the export marketing of salted fish from Newfoundland to other countries or to any provinces of Canada.

(2) Subject to this Term, all Fisheries Laws and all orders, rules, and regulations made thereunder shall continue in force in the Province of Newfoundland as if the Union had not been made, for a period of five years from the date of Union and thereafter until the Parliament of Canada otherwise provides, and shall continue to be administered by the Newfoundland Fisheries Board; and the costs involved in the maintenance of the Board and the administration of the Fisheries Laws shall be borne by the Government of Canada.

(3) The powers, authorities, and functions vested in or imposed on the Governor in Commission or the Commissioner for Natural Resources under any of the Fisheries Laws shall after the date of Union respectively be vested in or imposed on the Governor General in Council and the Minister of Fisheries of Canada or such other Minister as the Governor General in Council may designate.

(4) Any of the Fisheries Laws may be repealed or altered at any time within the period of five years from the date of Union by the Parliament of Canada with the consent of the Lieutenant-Governor in Council of the Province of Newfoundland and all orders, rules, and regulations made under the authority of any Fisheries Laws may be revoked or altered by the body or person that made them or, in relation to matters to which paragraph three of this Term applies, by the body or person that under the said paragraph three has power to make such orders, rules, or regulations under the Fisheries Laws after the date of Union.

…..

(6) Terms eleven, twelve, thirteen and eighteen are subject to this Term.

…..

[23] Term 31, which provided for the assumption by the Government of Canada of certain public services, works and property, expressly referred to the fisheries:

31. At the date of Union, or as soon thereafter as practicable, Canada will take over the following services and will as from the date of Union relieve the Province of Newfoundland of the public costs incurred in respect of each service taken over, namely,

…..

(g) protection and encouragement of fisheries and operation of bait services; …

[24] The effect of the Terms of Union upon legislative jurisdiction over the fisheries was addressed by this Court in Johnson v. Seabright et al. (1979), 107 D.L.R. (3d) 749 (affirmed in Moore v. Johnson, [1982] 1 S.C.R. 115). That case considered whether a Newfoundland statutory provision prohibiting the killing of seals on Sunday had been repealed or abolished by the passage of a regulation pursuant to federal fisheries legislation. The Newfoundland statute was one in force in Newfoundland prior to its union with Canada. In declaring that statute to have been repealed the Court unanimously held that fisheries is within the sole legislative jurisdiction of the Parliament of Canada. Gushue J.A. noted the effect of Term 18 of the Terms of Union and squarely addressed the legislative jurisdiction over fisheries as follows:

… the Seal Fishery Act encompasses various fields, both federal and provincial, but there can be no doubt that the purpose of the Act generally was to regulate the prosecution of the seal fishery. … It was therefore a fisheries regulation, and the regulation of fisheries, both sea coast and inland, came and comes under the aegis of the federal Government. …

(p. 754)

…..

To quote Rand, J., in the Bowater case, supra, at p. 98 D.L.R., p. 639 S.C.R.:

The legislative result of the Union has been to transfer to the field of the Dominion those provisions of law which relate to matters attributed in the constitutional structure to the Dominion;… .

Thus, because fisheries was a field solely and exclusively within the jurisdiction of the federal Parliament, that body – and that body only – had the authority to repeal, abolish or alter s. 15 of the Seal Fishery Act. …

(p. 755)

…..

I agree that by the proclaiming into law of the Fisheries Act in May, 1958, and the subsequent making of the Seal Protection Regulations by the Governor-General in Council pursuant to that Act, the Parliament of Canada exercised its exclusive jurisdiction in the field of fisheries and, by doing so, occupied the field of fisheries regulation and management in Newfoundland, thereby necessarily “repealing, abolishing or altering” all Newfoundland laws hitherto in existence for that purpose. …

… It is clear from Term 18 of the “Terms of Union” that the only body competent to enact legislation in respect of matters involving the regulation of fisheries is the Parliament of Canada. …

(p. 757)

[25] In seeking to distinguish Johnson v. Seabright the appellants do not confine their analysis to the Terms of Union and the Constitution Act. They also refer to a document which preceded the enactment of the Terms of Union. On December 11, 1948 the Prime Minister of Canada wrote the Chairman of the Newfoundland delegation involved in the negotiation of the Terms of Union. That letter, to which was attached a lengthier memorandum, stated:

During the course of our negotiations covering the final terms and arrangements for the union of Newfoundland with Canada a number of questions concerning Government policy were raised by your delegation and answered by the Canadian Government. In addition a number of temporary administrative arrangements were settled in order to facilitate the union.

It would not seem fitting to include in formal terms of union matters of this kind, since they are scarcely of a constitutional nature. I am therefore sending you the enclosed memorandum covering these various items. While these will not form part of the Terms of Union, they contain statements of the policy and intentions of this Government if union is made effective by the approval of the Parliament of Canada and the Government of Newfoundland and confirmed by the Parliament of the United Kingdom.

[26] I observe that this letter noted that the memorandum attached addressed matters of (Canadian) government policy and temporary administrative arrangements. The Prime Minister expressly disclaimed that the matters covered in the memorandum were of a constitutional nature. The memorandum covered a wide range of items such as imports of essential goods, passports, hospitalization of veterans and enrichment of flour. It included the following:

(iv) CONTINUATION OF LAWS

The Canadian Government will consult with the appropriate Newfoundland authorities with regard to the timing of the application of federal statutes or the timing of the repeal of Newfoundland statutes, where the provincial authorities feel that serious problems are involved requiring consultation with the federal authorities.

This will be a matter for specific discussion between the appropriate representatives of the two governments from time to time.

…..

(xii) FISHERIES

1. Trawling

Newfoundland trawlers will be permitted to fish (as they have been doing) to the three-mile limit off the coasts of Newfoundland, and an amendment to the Fisheries Act, 1932, will be introduced for this purpose.

It is understood that the policy as to trawler licensing in Newfoundland will be based on securing the maximum efficiency for the province’s fishing industry and welfare for its shore communities.

With respect to the establishment of territorial waters it is our understanding that the “headland to headland” rule, as it now applies to Newfoundland, will continue to apply.

2. Prohibition of Export of Bait Fishes

.....

3. Licensing of Premises to Pack Fish

(including Filleting and Freezing Plants)

…..

4. Power of Newfoundland Fisheries Board to Set

Quotas for Fish for Export

…..

5. Market Representatives

…..

6. Newfoundland Fish Export Tax

…..

7. Power of Newfoundland Fisheries Board to Negotiate Contracts

…..

8. Fish Wrappers and Packages

…..

9. Inspection Fees on Export

…..

10. Tariff Agreements

…..

11. Bait Service

…..

“Statements on Questions Raised by the Newfoundland Delegation during the Negotiations for the Union of Newfoundland with Canada”

[27] The appellants, referring specifically to para. (xii) thereof, contend that this 1948 memorandum constituted a bilateral agreement between Newfoundland and the Government of Canada pursuant to which the Province has the sole legislative jurisdiction over fisheries within the three mile territorial sea (as it was in 1949). They further refer to the 1948 memorandum in support of their contention that under the Terms of Union the Province “retained” jurisdiction over such fisheries except that pertaining to the export of salted fish.

[28] The appellants stated their position in para. 38 of their factum as follows:

The Appellants maintain that the Prime Minister of Canada made a promise in a memorandum titled Statements on Questions Raised by the Newfoundland Delegation. That promise conceded that Newfoundland would continue to exercise jurisdiction over a three (3) mile territorial sea as it had done prior to entering Confederation. The Fisheries Act, 1932 was amended in 1952 regarding trawlers, thereby providing proof positive of the promise made by Prime Minister St. Laurent as well as partial performance of that promise. The Federal Fisheries Act was again amended in 1969 and by that amendment jurisdiction to the three (3) mile limit was removed and breaking that promise.

[29] In my view the actual wording of paragraph (xii) of the 1948 memorandum cannot on any reasonable interpretation support the appellants’ position. The express language does not mention that Newfoundland is to have jurisdiction over the fisheries within the three mile territorial sea. Considering the significance of the fishery and that the paragraph provides clear guidance on other aspects of the fishery it seems implausible that Newfoundland’s jurisdiction, as claimed by the appellants, would not be more clearly acknowledged. I observe that paragraph xii(i) is headed “Trawling” and its text discusses only that aspect of the fishery and the continued application of the “headland to headland” rule respecting territorial waters. The most reasonable interpretation of that paragraph, read in context, is that it stated the intention of the Government of Canada on how federal jurisdiction would be exercised if Newfoundland were to join Canada. It specifically noted that federal legislation would be required to effect the stated policy that Newfoundland trawlers would be permitted to fish to the three mile limit. The 1948 memorandum does not support any suggestion that Newfoundland, as a province, was to have legislative jurisdiction over fisheries in the territorial sea.

[30] I further note that the appellants’ submissions fail to consider the effect of the Prime Minister’s covering letter – see para. 25 above – upon interpretation of the 1948 memorandum.

[31] I conclude that the 1948 memorandum does not have the constitutional effect claimed by the appellants. It did not alter the distribution of legislative jurisdiction and affords no principled basis for overturning Johnson v. Seabright.

[32] I will now comment briefly in order on the nine grounds of appeal stated in the appellants’ factum.

Ground 1 - That the Learned Appeal Court Judge erred in the proper interpretation of the Terms of Union of the Dominion of Newfoundland with the Dominion of Canada in that he placed undue emphasis on Term 18 and insufficient emphasis on Term 22. Term 22 deals with the fishery and serves to cut down the provisions of Term 18 as it applies to the fishery.

Ground 2 - That the Learned Appeal Court Judge erred in ruling that the Dominion of Newfoundland transferred jurisdiction of the entire fishery to the Dominion of Canada, when in fact, Term 22 clearly defines Fisheries Laws as pertaining to the salt fishery only.

[33] The appellants argue that Term 22 serves to restrict the application of Term 18 with respect to the fisheries. They state:

… If Term 18 mandates that all laws in force in Newfoundland continue in force, why is it then necessary for Term 22(2) to mandate that all fisheries laws continue in force for 5 years and thereafter until the Parliament of Canada provides otherwise. The only way that Term 18 and Term 22 can logically coexist is if Newfoundland retained jurisdiction over its fisheries but for the export market of salted fish from Newfoundland to other countries and to any provinces of Canada.

[34] This argument is fallacious. Term 18 and Term 22 are entirely consistent with exclusive federal legislative jurisdiction over the fisheries. Term 18 addressed the continuation of all laws in force in Newfoundland at the date of Union and their repeal or amendment by either the federal parliament or provincial legislature in accordance with the established distribution of powers under the Canadian Constitution. There was no assurance in Term 18 that such laws would not be repealed or amended immediately following union with Canada. Term 22 provided that assurance with respect to a defined group of statutes concerning the export marketing of salted fish. These statutes were to continue in force for a minimum of five years unless the Newfoundland cabinet sought their earlier alteration or repeal. Term 22 therefore provided a limited exception to Term 18.

Ground 3 - That the Learned Appeal Court Judge erred in ruling that the Doctrine of Crown Honour did not apply to the Appellants because they are not indigenous people. In fact the Doctrine of Crown Honour is a common law Doctrine, which predates the Dominion of Canada even coming into existence by hundreds of years.

[35] Under this ground the appellants emphasized the 1948 memorandum discussed above. Federal fisheries legislation was amended in 1952 to permit Newfoundland trawlers to fish within three miles of the coast. The appellants contended that a statutory amendment in 1969 undid this preferential treatment accorded to Newfoundland trawlers thereby breaking the promise made in 1948. It is in that context that the doctrine of Crown honour was asserted.

[36] There cannot be resort to the doctrine of Crown honour in these circumstances. The 1948 memorandum was clearly a statement of the intended policy of the Government of Canada on various matters within federal jurisdiction including certain fisheries matters. There was no assurance that such policy would continue in perpetuity. It is of the very nature of government policy in such matters that it may change over time. As explained above the 1948 memorandum did not alter the allocation of legislative power over fisheries under the Constitution.

[37] Under this ground it was further stated that Newfoundland, prior to union with Canada, had exercised jurisdiction over a three mile territorial sea. The appellants then maintained “that any territory or jurisdiction not ceded to the Federal Government logically remains with the province”. I offer two comments on this proposition. Firstly, whether territory belongs to the province does not assist the appellants. It is well established that there is a distinction between property rights and legislative jurisdiction and that legislative jurisdiction over fisheries conferred on the Parliament of Canada may be exercised in respect of property vested in the Province – see B.C. Fisheries Reference. Secondly, the statement that jurisdiction not ceded to the Federal Government remains with the Province is inaccurate. It ignores the plain language of Term 3 of the Terms of Union which provided that the Canadian Constitution applies to Newfoundland in the same manner as all other provinces, except as varied by the Terms of Union. Under the Constitution Act, 1867 the legislative jurisdiction over fisheries was assigned to the Parliament of Canada. There is nothing in the Terms of Union at variance with that assignment of exclusive legislative jurisdiction except for the transitional provisions in Term 22.

Ground 4 - That the Learned Appeal Court Judge erred in relying upon the conclusion of the Trial Court judge that Newfoundland assumed the same position on entry into Canada as if Confederation had been achieved in 1867. Term 3 of the Terms of Union clearly establishes a special status for the Dominion of Newfoundland, that being equal to the nine provinces of Canada except as modified by the Terms of Union.

[38] The appellants’ challenge in this regard does not advance their position. The Appeal Court judge at paras 29-30 – see para. 7 above – accepted that upon entry into Canada Newfoundland was subject to the Canadian Constitution in the same manner as all other provinces. He did not add the qualification stated in Term 3 that the foregoing was subject to such variance as was contained in the Terms of Union. That qualification is only important in the context of this case if the appellants could have established that the Terms of Union varied legislative jurisdiction over the fisheries and conferred legislative jurisdiction upon the Province within the three mile territorial sea. The appellants’ arguments have not persuaded me that the Terms of Union have varied the legislative jurisdiction over fisheries in that manner. The only variance of note was that in Term 22, providing for the short-term continuance of statutes relating to the export marketing of salted fish. The Terms of Union do not by their express terms or necessary inference confer upon Newfoundland legislative jurisdiction over fisheries regulation.

[39] Under this ground of appeal the appellants also observed that certain statutory restrictions on salmon fishing which applied to other eastern provinces were not amended to extend to this Province. This was suggested to be an acknowledgement by the Government of Canada that it had no jurisdiction to legislate in respect of fisheries within the three mile territorial sea off the Province. There is no merit to that position. No authority was cited, nor am I aware of any, in support of the proposition that the Parliament of Canada must legislate in like manner for each province in respect of fisheries regulations. There may obviously be differing historical, social or economic reasons why fisheries regulations may vary from one region or province to another. The absence of particular legislation in respect of this Province cannot at law be taken as an acknowledgement of lack of jurisdiction.

Ground 5 – That the Learned Appeal Court Judge erred in relying upon cases decided by Canadian Courts prior to the entry of Newfoundland into Confederation. Specifically, the other nine provinces joined the Dominion of Canada as either colonies or as territories and enjoyed no international personality at the time that they joined Confederation. Newfoundland, on the other hand, joined Canada as a Dominion. It had already achieved Dominion status and authority. Therefore, its international boundaries including its boundary with the Dominion of Canada in Labrador and its three (3) mile territorial sea had already been established in accordance with international law in the same manner as all other Dominions of the Commonwealth, including Canada.

[40] The appellants’ contentions under this ground cannot be accepted. That Newfoundland, immediately prior to joining Canada, had Dominion status, certain international boundaries and a territorial sea, is, in the context of this appeal, a “red herring”. This appeal is about the distribution of legislative jurisdiction under the Canadian Constitution. When Newfoundland joined Canada it accepted in Term 3 of the Terms of Union that the existing Canadian Constitution, including the key provisions pertaining to legislative jurisdiction, applied to it as to all other provinces, except as varied by the Terms of Union. The only variation in respect of fisheries jurisdiction cited by the appellants was that in Term 22. As discussed above, the variation in Term 22 was both limited in scope and short term in duration. It does not assist the appellants.

[41] I specifically reject the appellants’ contention that case law pre-dating Newfoundland’s entry into Canada ought not to be considered. In 1949 Newfoundland adhered to the existing Canadian Constitution with its developed jurisprudence. That jurisprudence applied to Newfoundland in accordance with Term 3 of the Terms of Union.

[42] The appellants cited the decision of this Court in Reference re: Mineral and Other Natural Resources of the Continental Shelf (1983), 145 D.L.R. (3d) 9 respecting proprietary rights to the bed and subsoil of the 1949 territorial waters of Newfoundland. They argued that ownership of the fishery of the territorial sea therefore belonged to the Province. That argument ignores the clear jurisprudence that federal legislative jurisdiction over the fisheries is not ousted by the existence of provincial proprietary rights – see for example, B.C. Fisheries Reference.

Ground 6 – That the Learned Appeal Court Judge erred in relying upon Johnson v. Seabright and Ward v. Canada as the impugned activity is distinguishable in two respects. First of all, the Courts in Johnson and Ward dealt with activities, which took place outside of the three (3) mile territorial sea surrounding Newfoundland and Labrador. Secondly, they dealt with commercial harvesting of sea mammals whereas the instant case deals with recreational fishing for personal consumption within the three (3) mile territorial sea surrounding Newfoundland and Labrador.

[43] The appellants seek to distinguish Johnson v. Seabright and Ward v. Canada principally on the basis that neither concerned the fishery within the territorial sea. As explained above however there is no basis to conclude that the exclusive federal legislative jurisdiction over fisheries was restricted by the Terms of Union in respect of territorial waters off Newfoundland. The principles enunciated in Johnson v. Seabright and Ward v. Canada apply equally in respect of those territorial waters as they do beyond such waters.

Ground 7 – That the Learned Appeal Court Judge erred in ruling that Newfoundland was not particularly bothered by federal control over a fishery within a three (3) mile territorial sea as the provincial government has not challenged federal legislative authority to do so. The Appellants maintain that acquiescence of their provincial government in protecting their individual rights is not sufficient to cause the loss of those rights. Furthermore, the Province of Newfoundland and Labrador has successfully challenged the jurisdiction of the Government of Canada regarding the ownership for sub sea resources, extending three (3) miles out to sea from the low water mark of the coastline of the province in Reference Re Minerals and Other Naturals Resources of the Continental Shelf.

[44] The statement in question by the Appeal Court judge was not central to his disposition of the case. It was obiter.

[45] Furthermore the statement that Newfoundland was not “particularly bothered” is quoted out of context. It was contained within a review by the Appeal Court Judge of the Terms of Union as follows:

[36] The Terms of Union expressly acknowledge Federal jurisdiction over Fisheries as I have just demonstrated. But there is, aside from express acknowledgement, a tacit recognition which is just as compelling: Newfoundland agreed to the Terms of Union with Canada and Term 22 in particular. Term 22 defers to Federal jurisdiction over Fisheries and it acknowledges that Newfoundland was content with the arrangement agreed upon. Implicit in the Term 22 is a recognition that the Government of Canada held the residual authority over Fisheries and Newfoundland was simply retaining what it could of the sovereign position that it had once held in Fisheries to ease the transition to the new management regime.

[37] Newfoundland was understandably concerned about the immediate impact of Confederation on its most important industry in the present knowledge that the industry would pass to Federal control when the Union was finalized. It sought and received from the residual authority – the Government of Canada – assurances that the industry would be protected until the Federal government developed the infrastructure and legislative base to avoid calamity in the fishery.

[38] This is not the stance of government that believed it was retaining control of the fishery. Rather it is consistent with what it had agreed to when it negotiated Newfoundland’s entry into Confederation: give over control of the fishery (and in many other areas it had formerly controlled) to the Federal government in the bargain to join the Union. It is not as though Newfoundland was particularly bothered by its choice. After all, the cost of managing the fishery was a burden to Newfoundland. The cost of operating the Fisheries Board was the main part of that burden and Newfoundland was happy to pass that cost to the Government of Canada under Term 22(2).

(emphasis added)

[46] I find no error in the foregoing analysis of the Appeal Court Judge.

[47] The reference to provincial acquiescence followed the above quoted paragraphs and noted the absence of provincial legislation asserting control over the fisheries and the stance adopted by the Attorney General of the Province in Johnson v. Seabright and in this case. No error has been shown in the statements of the Appeal Court Judge on those points.

[48] The decision of the Attorney General of the Province not to intervene in this case has not affected my view respecting legislative jurisdiction over the fisheries.

Ground 8 – That the Learned Appeal Court Judge erred in finding no evidence of broken promises when the Government of Canada first amended the Federal Fisheries Act to recognize a three (3) mile limit for Newfoundland trawlers and then, without consent, further amended the Federal Fisheries Act to remove that provision which created special status for Newfoundland trawlers.

[49] This ground is a recasting of the submission arising from the 1948 memorandum. The appellants argue that amendments to federal fisheries legislation should be treated as “either a bilateral agreement between the Dominion of Newfoundland and the Dominion of Canada, as a promise made by the Crown of the Dominion of Canada, which must be honoured, or as part of the Constitution of the Nation as it pertains to the Province of Newfoundland and Labrador”. For the reasons explained in para. 29 above the 1948 memorandum did not alter federal legislative jurisdiction over fisheries. A fortiori legislation which implemented part of that memorandum could not have that effect.

Ground 9 – That the Learned Appeal Court Judge erred in finding that the Appellants have not identified themselves or any other Newfoundland group as groups to whom the Government of Canada owes a fiduciary duty in respect of the fisheries, when in fact they claim that all residents of Newfoundland and Labrador are that group.

[50] In the contested passage the Appeal Court Judge was responding to the appellants’ invocation of the doctrine of Crown honour, and their citation of cases which discussed that doctrine in the context of aboriginal and treaty rights.

[51] In view of my conclusions respecting the distribution of legislative jurisdiction over the fishery it is unnecessary to delve into the doctrine of Crown honour. However, the appellants’ submissions did not establish any basis for the alleged fiduciary duty.

Disposition

[52] For the reasons stated above, I would dismiss the appeal.

_________________________

K.J. Mercer, J.A.

I concur: _______________________
B.G. Welsh, J.A.

I concur: ________________________
L.J. Barry, J.A.

-srbp-

24 September 2007

Money and the ethnic vote: part 2 of 3

Ineffective policy

At its simplest level, the Progressive Conservatives pronatalist policy is aimed at increasing family size within Newfoundland and Labrador. Women will receive a bonus of each child delivered or adopted.

The pronatalist policy should be rejected since it does not work and therefore is a waste of scarce public money. Experience across the globe over the past 30 years demonstrates that cash incentives do not change fertility levels to an appreciable degree. The average number of children born per couple of child bearing age remains generally the same. The policy may produce some temporary fluctuations but overall, fertility rates in major industrialized countries remain the same after pronatalist policies as before.

In jurisdictions where pronatalist policies have been tried, they tend to be very expensive. Quebec's decade long cash-bonus program cost an average of $15,000 per child but was abandoned because it was ineffective. Where policies did affect the birth rate modestly,they include measures inconsistent with a modern democracy. Franco's Spain banned birth control, for example. However, once the dictatorial methods disappeared with the move to democracy in countries such as Poland or the former German Democratic republic, birth rates moved in directions experienced in other democratic countries. Overall, the policies simply do not work.

On another level, the cash incentive policy is touted as a way of dealing with a declining population size; more people are leaving Newfoundland and Labrador either through emigration or death than are immigrating or being born.

Migration is driven primarily by economic considerations – people leave to find work or come to take advantage of opportunities. Paying a cash bonus of any size will not affect that simple motive, either for new immigrants or as a way of attracting former residents to return. Family size is driven by complex factors, centred mostly on individual choice about lifestyle. None of these factors are affected by the limited policy announced by the Progressive Conservatives and certainly none are affected by the $1000 bounty placed on a set of diapers.

Randy Simms and others have pointed out these inherent flaws in the policy as a policy aimed at addressing demographic issues facing Newfoundland and Labrador in the decades ahead. Their criticisms are well-founded. However, they have ignored other aspects of the policy which make it not merely ineffective but socially and politically regressive.

There are two aspects to the demographic problem facing Newfoundland and Labrador. One is the declining population which reduces the available workforce. This can be addressed, most effectively by increased immigration. Workers will be needed now. We have already arrived at the start of the worker crunch and this situation – fewer workers – will only increase in the years immediately in front of us, if present trends continue. A cash bonus for children - even if we imagine that it will be effective here where it has failed everywhere else - will not produce new productive members of the economy for the better part of two decades.

The second aspect of the demographic problem is the changed makeup of the population. The dependent portion of our society increases as the population increases. That is, where once there were more people employed people than children and seniors, we are already in the state of having more children and seniors than wage workers.

This has an obvious economic consequence in that each worker must produce - on average - more revenue for the treasury so that the existing public services can be maintained. Paying a bonus for having children does nothing to increase productivity or increase average wages.

Part of the flaw in the proposed policy is the emphasis on the declining population size. The adverse implications of the demographic changes taking place in Newfoundland and Labrador do not flow from the size of the population alone. In the fishery, for example, it is well established that the industry will have to change from its labour intensive production in order to remain competitive. Fewer people will be needed. it is possible to have a vibrant, viable economy with a smaller population or even one with a high rate of dependency - more non-workers than workers - than currently exists in Newfoundland and Labrador.

Ignoring the evidence

That said, it is instructive to look at Danny Williams' comments to reporters:

We've had some lengthy discussions on this in caucus and at cabinet... and what we've done is we've looked at the jurisdictions across Canada, to the best of our ability, and as quickly as we could in advance of the election, government had started to do this process, but it's a very detailed process, and we want to make sure we follow through.

We're also looking at some precedent in Europe, and other modern countries, trying to encourage young families to have children. It's a clear problem, and it's an economic problem... This government is open to suggestions, and good suggestions... It's probably one of the key points in our platform, that we feel very strongly about. It's something we'd certainly like to implement as soon as possible. It hasn't been budgeted. One of the best jurisdictions and one of the most successful, of course, was Quebec. And they have found it to be one of the most successful initiatives. But I'd be remiss in [not] saying that we're still preliminary on this. [Emphasis added]

The policy was obviously hastily assembled. It is also obvious that the claim that Quebec's program was successful fly in the face of evidence. The current administration clearly appreciates that the demographic issue is an economic problem.

In the last part of this commentary, we'll look at possible explanations for the pronatal policy that defies the obvious reasons not to pursue it.

-srbp-

23 September 2007

Money and the ethnic vote: Part 1 of 3

[This is the first of three posts dealing with aspects of the Progressive Conservative pronatal policy and other aspects of the party platform. ]

The unasked question

Voters in the provincial general election saw a curious situation this past week.

On Tuesday, Premier Danny Williams unveiled his party’s election platform which included a policy to pay women to have more children. He used the phrase “we can’t be a dying race” when discussing the policy with reporters.
We've had some lengthy discussions on this in caucus and at cabinet... and what we've done is we've looked at the jurisdictions across Canada, to the best of our ability, and as quickly as we could in advance of the election, government had started to do this process, but it's a very detailed process, and we want to make sure we follow through. We're also looking at some precedent in Europe, and other modern countries, trying to encourage young families to have children. 
It's a clear problem, and it's an economic problem... This government is open to suggestions, and good suggestions... It's probably one of the key points in our platform, that we feel very strongly about. It's something we'd certainly like to implement as soon as possible. It hasn't been budgeted. One of the best jurisdictions and one of the most successful, of course, was Quebec. And they have found it to be one of the most successful initiatives. But I'd be remiss in [not?] saying that we're still preliminary on this.
Later in the week, a local Liberal supporter said of transportation minister John Hickey that Hickey’s lawsuit against former premier Roger Grimes was intended to show that “if you criticize my government, if you criticize my fuehrer, I will sue you.'"

In both instances, the words used are provocative and come loaded with historical meaning. Yet, while Liberal Jim Combden was rightly condemned for his apparent allusion to Nazi dictator Adolf Hitler, few have commented publicly on the Premier’s use of the term race in connection with his $1000 baby bonus. The contrast in reactions is is both stark and revealing.

Not a single reporter apparently questioned Danny Williams on what he meant by the term “race”, let alone ask what race was dying. One editor called it “hyperbolic rhetoric.”

A prominent local talk radio host chastised those who – like Liberal candidate Simon Lono – questioned the use of the term. In his weekly column in The Independent, Randy Simms wrote:
While some people have taken exception to the use of the word race to describe Newfoundlanders and Labradorians, it was not meant in any derogatory way. He might just as well have said the words dying breed as opposed to dying race and it would amount to the same thing. We all know what he meant, and to try and give it any other meaning is simply being unfair. I do not subscribe to the view that the premier is any kind of racist. [Emphasis added]
They are not alone in their view. A discussion thread on nf.general produced at least two comments to the effect that ‘we all know what he meant’ and that the subject needed no further discussion.

Local freelance writer Myles Higgins, himself a staunch supporter the Premier during the election, posted a commentary on his blog Web Talk, under his usual pseudonym Patriot:
Anyone who is offended by terming the majority of people here a "race" certainly needs to be educated on their culture and history.
The unasked question knows no answer

Higgins, Simms, and the others are right. We all know – or we are reasonably comfortable in believing we all know - that Danny Williams was referring to the majority of people in the province. That is, he was referring to the white, English-speaking people of English, Irish, and Scots ancestry. That is the race to which he most likely referred.

Higgins does an excellent job of examining the term "race", incidentally. While he does not get into alternate possible meanings - such as using using race as a synonym for "breed" or merely the provincial population as a whole - his post makes the case against those interpretations implicitly. We will leave to one side the possible use of "breed" as a synonym for race devoid of a negative meaning.

The most striking feature of the premier’s comments actually came from the response in the province as a whole. Few questioned it. Most, one suspects, followed the approach of the reporters noted above and never thought of it as a potential issue or, as with others, assumed a meaning.

Rationalizing a term loaded with potential meanings or embracing it wholeheartedly suggests that the comfortable members of the majority group within the province are largely blind to the implications for society as a whole.

However, neither of these is ultimately satisfactory. Not only do we not know exactly who the ‘we’ are in that statement on "race", we simply have no idea what he meant since no one asked him.

Over the next two posts, let us take a walk into that area others seem unwilling to go. I doing so we may find some answers or potential answers to unasked questions.

First, we will examine pronatalist policy as a means of addressing the province's demographic problem.

Second, we will look at the pronatalist policy in a broader context of Progressive Conservative policy since 2003.
-srbp-

19 September 2007

Hiring baby ranchers

From Washington Profile, an interview with Nicholas Eberstadt on the demographic problems facing Russia. Read the whole interview to understand the Russian experience in a wider context.

Eberstadt is a political economy specialist at the American Enterprise Institute. It's a pretty stark appraisal from a purely economic perspective, but the ideas are worth considering.

But in light of the Progressive Conservative's procreation policy, take a look at this [emphasis added]:
Washington Profile: Russia is not the only country to attempt to increase birth rates through government policy and incentives. How effective have these kinds of policies been in other countries, for example, in western Europe?

Eberstadt: Birth incentive plans are almost always ineffective in the long run. The typical history of birth incentive plans in western Europe and elsewhere has been to elicit a small blip in birth rates followed by a bigger slump. The reason for the blip is that some parents “on the fence” about the timing of a second or a third child take advantage of the introduction of these incentives. And the subsequent slump takes place because the bonuses alter parents' timing of desired births, not desired birth totals. If one were to have a serious pronatalist economic plan, you’d be getting into some very big money. You would have to have vastly larger outlays than are currently accorded to social security, healthcare or any other existing programs. Basically, you’d have to be prepared to be hiring women to work as baby ranchers—and in a modern economy, given the opportunity cost of women’s labor, a program like that would be staggeringly expensive. That, I think, explains the limited success of pronatalist efforts in the western historical record. By the way, it also turns out to be very difficult to talk up the birth rate: the bully pulpit and the government usually can’t convince people to have extra children out of patriotism or civic duty.

Washington Profile: Russia has become a country with significant immigration flows. How is this likely to impact on its demographic situation?

Russia has the same problem that other European countries have, with the prospect of population decline, and the question of changing ethnic composition. Many of the prospective migrants to Russia are not of Russian ethnicity, and as you know, the government has increasingly indicated a nationalist, or a nativist, objection to immigration to the Russian Federation. There still are a number of millions of Russians in the near abroad, but the flow of Russian ethnic migration to the Russian Federation has declined almost to a trickle over the past decade. Barring some sort of awful political upheaval, I don’t know how realistic it would be to think that these ethnic Russians in the near abroad might want to pack up and head back to the Russian Federation. So Russia is facing the same kind of issues as the rest of Europe. Throughout Europe, the key question in this regard is: can the newcomers be turned into loyal and productive citizens? Some places have a better track record of this than others.
A discussion paper from the Max Plank Institute for the Study of Democratic Policy examines fertility policies in western European countries. Note that the paper discusses a range of policies aimed at supporting people raising children, not merely the performance bonus system for producing children.

While the Progressive Conservative policy announced on Tuesday includes components aimed at supporting parents during child-rearing, it remains to be seen if these measures will be effective. A significant program would involve reform of the federal government's parental leave program to provide larger benefits over a longer period of time versus the current scheme of providing 55% of income for a year. At the time when costs rise, the scheme actually reduces family net income.

There is also a question as to whether or not the longer-term policies are actually the impetus for the proposed program. The Premier's comment on a "dying race" suggest something closer to the sort of reactionary nationalist policies that have emerged in some states, such as Russia. "Race" in this case, is most definitely not synonymous with "province" as some may naively be tempted to argue. The provincial government's throne speech from the past spring, as well as the Progressive Conservative campaign contain clear expressions of nationalist sentiment if not outright ideology.

-srbp-

02 June 2007

NL behind NS in space race

With 120 hectares of Crown land to build on, an American company has put Nova Scotia decisively ahead of Newfoundland and Labrador in the race for space.

When will people be organizing protests about this great slight to the people of Newfoundland and Labrador?

This sort of venture could have put Newfoundland and Labrador on the leading edge of the 21st century's great challenge.

Surely, this is proof that Confederation was a giant conspiracy to oppress the poor, downtrodden people of a poor downtrodden land.

Nova Scotians are already looking down their noses at us as they take away some of the greatest assets of the province in an unprecedented give-away of our resources. Next thing, they'll be looking down on us from outer space.

And while we are at, the Government of Newfoundland and Labrador should be lobbying for federal funding to build a museum to this affront to intelligence.


-srbp-

26 April 2007

The new Oldest Living Father of Confederation

One story for home. One for away.

It must be like a hockey team with a white shirt for home games and a dark one for away, except this one has a white shirt for both, depending on your perspective.

At home, Danny Williams is a fearless champion of Newfoundland nationalism. White shirt.

In Winnipeg, he's a fearless Canadian fighting the Newfoundland separatists. A different white shirt.

No joking.

From the Canadian Press post-throne speech coverage:
Premier Danny Williams says he's trying to quell separatist feelings within Newfoundland and Labrador, despite a throne speech that suggested the province should push for more autonomy from Ottawa.

"The fans of sovereignty are here. If anything, I've been trying to dampen those fires as much as I can," Williams said yesterday.

"Dampen those fires as much as I can"?

Uh huh.

Riiiiiight.

Update: There's a related story on cbc.ca/nl.


-30-

30 September 2005

The Dead End Kids

As one might have expected, The Gangs of St. John's caused a stir over at Responsible Government League [RGL], or as I sometimes call it, the place where one finds posts of Really Great Length.

At the outset, let's restate the point made in the original post which, admittedly, might have gotten lost either in the wake of the opening photo of a well-known Bowery Boy or in the end photo of Cameron Diaz.

The Gangs of St. John's argued that:

a. There are many more pressing issues deserving of widespread public debate or discussion at this point than what piece of coloured nylon flaps from the flagpoles of the province; and,

b. if we must discuss it, there is little merit in holding up the pink, white and green flag that derived from a particular, short-lived political faction in early 19th century St. John's as being somehow the de facto emblem of our fair land and its people.

The pink, white and green is a version of the flag of the so-called Newfoundland Natives' Society.

That is it. Pure and simple. After the Society collapsed in 1847, the flag appears periodically, almost exclusively in St. John's and continues today having become associated with the idea of Newfoundland and Labrador as an independent country.

The origins of the colour combination are somewhat difficult to trace. Prominent local historian John Fitzgerald brands as a fable the idea that the flag was designed to include the colours of England and Ireland with a white band of peace between the two. He then ignores any discussion of the origins of the flag, preferring instead, as does RGL to focus on the appearance of the flag after 1860 or thereabouts to make the case for the tricolour as the flag of this place. Oddly enough, the tricolour petition website actually cites the seal myth as part of the flag's history despite the fact that Fitzgerald dismisses it as unsubstantiated.

The Encyclopedia of Newfoundland and Labrador contends that the flag derived from the banners of two rival Irish organizations, one made up of people born in Newfoundland, the other being new-comers. This is the version I have accepted thus far, until someone can suggest an alternative.

There is no doubt that the tricolour appears periodically and has been held up as the local flag. However, the examples offered by O'Brien and others are almost exclusively from St. John's. O'Brien notes the formation of the police force and fire brigade, which, it should be noted means the St. John's police force and the St. John's fire brigade.

O'Brien notes the pledge of Sir Robert Bond in the 1908 election to make the tricolour the official flag of the country. He takes issue with my contention that Bond made the pledge for electoral benefit, likely by appealing to a particular group in St. John's (I am suggesting predominantly those of Irish heritage) to try and win a hotly contested election.

As I noted in comments on RGL, it seems passing strange that Bond would use the tricolour as a major part of his campaign. Bond was seeking re-election and it was during his administration that the legislature adopted a typical British ensign as the official flag of Newfoundland. Aside from what may have occurred in certain instances noted by tricolour supporters, this flag flew on all government buildings before 1949 and a blue ensign of the same design flew on government-owned vessels. It is also the flag that hangs in the Amiens memorial chapel to the fallen of the Great War representing Newfoundland, as one of the countries that fought to defend France.






The 1904 Newfoundland Ensign

Perhaps the most curious portion of O'Brien's post is the argument that I have somehow confused the tricolour flag with separatism. He cites a poll conducted for the Vic Young Royal Commission as proof of his contention that the flag and the "nationalist" sentiment actually pervade the province.

Let's us be clear. The Ryan Research poll does indicate that an overwhelming majority of respondents consider themselves to be Newfoundlanders or Labradorians before they consider themselves Canadians. At the same time, the poll also found that an overwhelming majority of respondents were opposed to Newfoundland and Labrador becoming an independent country. That sentiment was strong across all regions, including St. John's.

But at no point does Ryan ask about the flag. Therefore, O'Brien's use of this poll to prove or disprove any point about the validity of the tricolour as the provincial flag is erroneous.

Nationalism, on the other hand is something altogether different from independence and separatism. Nationalism as pride in one's place of birth is an obvious notion.

The "nationalism" to which I referred in The Gangs of St. John's is that version of nationalism that is rooted in St. John's. Part of it derives from the nativist sentiment of almost two centuries ago. Some of it - albeit a very small portion, according to Ryan - is unabashedly in favour of a return to so-called responsible government: independence.

To be fair, I should have clarified my use of the term. In local usage, the word "nationalist" almost invariable does not mean independence. Even the newspaper which uses the tricolour in its masthead and which calls itself The Independent cannot seem to call outright for the independence of Newfoundland and Labrador from Canada.

Rather the "nationalists", who have always been found mostly on the streets of St. John's are actually closer in philosophy to Quebec's sovereignists: they romanticize about local "nationalism", of being maitres chez nous, and speak in strong terms about the supposedly harsh treatment this place has received from "evil" Canadians.

Yet, these same champions of Newfoundland and Labrador seem to be unable to remove themselves from the tit on the Rideau. They studiously avoid working out the financial implications of separation. They argue for something akin to sovereignty-association, with progressively more and more political power accruing to St. John's while Ottawa has little to do beyond keeping the cash flowing to provincial coffers.

In that context, the January offshore deal is a classic example of the "nationalist" approach - so that the provincial government may receive all revenues from its offshore resources, it must receive not only all the revenues (as it currently does, and as acknowledged by the provincial government in the deal itself) but it must also receive federal transfer payments as if those revenues did not exist. We attain local self-determination (does this not mean independence?) - we become masters of our destiny in the Premier's words - by receiving ever more hand-outs from Uncle Ottawa.

That said, the pink, white and green is the banner around which these "nationalists" rally and no one should pretend that this tricolour flag is being proposed and is supported largely by anyone other than "nationalists".

Through it all, however, one cannot escape the overwhelming rejection of independence by those polled merely two years ago. The numbers today may well be different, but somehow I would doubt they would be radically different such that I might think it possible - were I a "nationalist" - to use an old St. John's flag as my rallying banner and expect to get very far.

This brings me inevitably back to the point at which The Gangs of St. John's started. With all the challenges faced by Newfoundlanders and Labradorians, surely the last thing on our agenda should be the flag. The last thing we ought bother to argue about should be the flag that is linked inextricably with such a small percentage of the population - by any measure.

If the flag - if the pink, white and green - is all we have to talk about or write petitions about, then surely we have reached a political dead end in Newfoundland and Labrador.

Maybe Satch really is the father of our "nationalists", if not our nation.