David v. Goliath? Perhaps, less dramatic – a nuisance suit. It seems that Prince Edward Island, North America’s tiniest jurisdiction, is pulling out the colonial stops and suing the motherland over the issue of fisheries quota and lines in the water. The Government’s press release includes the following:
Premier Pat Binns today confirmed that the provincial government will be commencing legal action against the Government of Canada to seek a resolution to a number of outstanding fisheries disputes. The disputes relate to not only the herring seiner boundary line, but also to the unfair and inequitable allocation of a number of fisheries species including Bluefin tuna, snow crab and gulf and northern shrimp. “The Prince Edward Island government has been actively and aggressively seeking a resolution to these and other fisheries issues and has not received a satisfactory response or rationale from the federal Department of Fisheries and Oceans,” said Premier Binns. “We are reluctant to have to take the federal government to court in order to secure justice for Island fishermen, but the failure to resolve these issues through other means leaves us with no options but to seek a legal settlement.”
There are some very interesting aspects to this case:
- For me the political question turns on (what I understand to be from a distance) the province’s opposition party’s allegation that the legal opinion upon which this decision is based actually advises against bringing a law suit. This may be mere puffery but what will the skuttlebutt be if the case were to be taken on and then lost?
- The issue of where provincial boundaries (even watery ones) are located, according to the wise Professor Hogg who writes on Canadian constitutional law, depends on how the province entered Confederation. This raises the prospect that warms any constitutional hobbyist’s heart that we may actually have an airing of the little discussed but fundamental colonial constitutions which continue as a structure underlying the nature of the fact of each province’s government. In the case of PEI, the colonial constitution is largely located in letters to the first Lieutenant-Governor of the then new colony circa 1769 at the time it broke off from Nova Scotia. The best source of comment on the 1769 PEI constitution is that of Georgia, its next nearest neighbour in time in terms of colonial creation. Will the constitutional law professors of Altanta be taking the stand? Will the lawyers in the case not know or care?
- It will be very interesting to witness the determination of the standing a province has in relation to the rights of its residents under an area of Federal law. “Standing” in law is the right to be associated with a claim and therefore bring or be involved in the case. There is here the play of the related matter of the local culture which is, frankly, first provincial and also to a certain degree unitarian in a way that somewhat excludes the idea that a resident there is also (let alone primarily)…umm…Canadian and subject to the Federal law directly as an individual and not as a part of the collective “Islanders”. Not quite the Borg with red pony-tails but perhaps only by extreme of degree. As the regulation of the fishery is a matter properly within the Federal jurisdiction and the complaint of unfair allocation is an allegation of wrong to individual fishery license holders, I am not clear on what role the provincial government might play in the legal question and what gives them the right to sue on behalf of individuals who happen to live there. Could the towns in which the license holders live also have brought the case? I do not know the answer and there may be a provincial-federal agreement at play but it is a very interesting cultural and constitutional nexus.
So there you have it – hot constitutional law issues arising in the land of the spud. Just the thing as the long winter starts with its promise of stormstays a plenty.