governing canada's economic zone

I

Abstract. This paper looks at some aspects of extended Canadian maritime jurisdiction. It explores the development and acceptance of the concept of the 200- mile economic zone at the United Nations Third Law of the Sea Conference. It considers the relationship between the multilateral negotiations on the 200- mile economic zone, and the 1977 200-mile fishing zone introduced by the Canadian government unilaterally, and concludes that extensive control over resource and non-resource issues will be extended over a 200-mile zone, but in a fragmented and piecemeal fashion.

New political relationships and institutions will emerge in the zone of extended coastal jurisdiction. As well, new areas of conflict, both intra-national and international, will emerge. The political problems the Canadian government will face, such as allocating an expanded national fishery between its inshore and off shore sectors, are suggested. Finally, administrative and political structures that could help to ensure the good government of the new zone are described. This might include a House of Commons Standing Committee on Ocean Mairs, to provide an integrated rather than the present fragmented perspective on ocean matters; and provisions to provide representation for environmental and consumer groups as well as for existing special interest groups such as those connected with the oil and fishing industries.

Sommaire. Cet article analyse quelques aspects de Pextension de la juridiction maritime du Canada. L'auteur y examine le drheloppement du concept de la zone Bconomique de deux cent milles marins A la Troisieme ConfBrence du droit de la mer des Nations Unies. I1 Btablit la relation entre les ndgociations multilatbrales de la zone Bconomique de 200 milles et celles de la zone de p&che de 200 milles Btablie unilathralement par le gouvernement du Canada en 1977. I1 conclut qu'un contrble dans le domaine des ressources physiques, comme dans d'autres domaines, sera Btendu A une zone dBpassant 200 milles mais d'une manihre partielle et progressive.

De nouvelles relations politiques et institutions seront Btablies dans la zone soumise A la juridiction &endue. On peut Bgalement s'attendre A de nouveaux conflits domestiques et intemationaux. On mentionne des probBmes politiques qui se poseront au gouvernement canadien comme le partage entre les secteurs de p&che dti8re et de pgche en haut mer. Enfin les structures administratives et politiques qui pourraient assurer un gouvemement efficace dans la nouvelle

Barbara Johnson is a post-doctoral fellow at the Institute of International Relations, University of British Columbia. The author would like to thank Dr. D.W. Middlemiss for his extensive comments on the first draft of this aper. This paper was presented to the Annual Conference of the Institute of Pub& Administration of Canada in Halifax, September 1976.

GOVERNING CANADA'S ECONOMIC ZONE

zone y sont dkcrites. Elles pourraient inclure une commission permanente de la Chambre des Communes sur les affaires maritimes qui traiterait des problemes maritirnes dans une perspective intkgrke au lieu de le faire, comme aujourd'hui, d'une facon fragmentaire. I1 serait aussi nhcessaire que soient reprksentks les groupes d'environementalistes et de consommateurs ainsi que ceux qui s'occupent, A l'heure actuelle, du pktrole et des industries de la p&che.

Introduction For eight years, the question of how the international deep seabed area should be governed has been considered in infinite detail at the United Nations Seabed Committee and later at sessions of the Third Law of the Sea Conference. Until recently, almost no time has been spent on planning the national regimes which are to be imposed on the seabed and waters within 200 miles of the shores of coastal states. Diplomats have feared the possibilities of wayward political behaviour by an international seabed agency. At the same time they have retained an unshaken faith in the capacity of their own governments to implement Utopia in their re- spective economic zones.

The moment for building Utopias is now at hand. Yet, the ocean regime has not been debated to any extent in Parliament. Canadians generally seem happy to let Ottawa, the coastal provinces and the private interests most directly concerned work out among themselves the Can- adian version of a maritime Utopia. This is an unwise attitude. It seems unreasonable that a country which proclaims itself to be a democracy should attempt to implement a 200-mile fishing zone without consulting its elected representatives. Few governments in the world can be finding fishing and economic zone legislation as painless as the Canadian one. To offset this complacency, this paper suggests what the political nature of the economic zone may be now and in the future. In particular, this paper examines what some of the worst outcomes might be from governing the zone. It then goes on to suggest processes and structures which might make for 'good' government in the economic zone.

This paper is divided into five sections. Section 1 defines what the 'economic zone' means in terms of international law and politics. Section 2 describes the range of national and non-national institutions that will probably characterize a Canadian economic zone. Section 3 identilies possible areas of conflict in the economic zone, both in terms of domestic and international conflict. Section 4 looks at some of the problems for the Canadian government involved in trying to govern the economic zone. It suggests what some of the worst outcomes could be. And finally, section 5 looks at some alternate goals for the economic zone, and suggests administrative and political structures that might make it easier to govern the zone.

1% ADMINISTRATION PUBLIQUE DU CANADA

BARBARA JOHNSON

Defining the economic zone What is ‘an economic zone’? According to the revised text produced at the New York session of the Third Law of the Sea Conference, it was defined as follows:

Article 44 Rights, jurisdiction and duties of the coastal State in the exclusive

economic zone 1. In an area beyond and adjacent to its territorial sea, described as the

exclusive economic zone, the coastal State has: (a) Sovereign rights for the purpose of expIoring and exploiting, con-

serving and managing the natural resources, whether living or non- living, of the bed and subsoil and superjacent waters;

(b) Exclusive rights and jurisdiction with regard to the establishment and use of artificial islands, installations and structures;

(c) Exclusive jurisdiction with regard to: (i) Other activities for the economic exploitation and exploration

of the zone, such as the production of energy from the water, currents and winds; and

(ii) Scientific research;

ronment, including pollution control and abatement; (d) Jurisdiction with regard to the preservation of the marine envi-

(e) Other rights and duties provided for in the present Convention. 2. In exercising its rights and performing its duties under the present

Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States.

3. The rights set out in this article with respect to the bed and subsoil shall be exercised in accordance with Chapter IV (i.e. continental shelf).

Article 45 Breadth of the exclusive economic zone

The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.’

Such are the powers given to the coastal states. They are wide-ranging enough that any one who is not a lawyer may wonder why a 200-mile territorial sea was not adopted to save a lot of trouble. As far as resource ownership goes, the economic zone is just like a territorial sea, as these provisions, combined with those giving coastal states ownership of continental shelf resources to 200 miles or the outer edge of the continental

1. Text.

A/CONF.62/W.P.8/Rev.l/Part 11, 6 May 1978. Revised Single Negotiating

1% CANADIAN PUBLIC ADMINISTRATION

GOVERNING CANADA’S ECONOMIC ZONE

margin, indicate.2 The fact that the economic zone is an ‘exclusive’ one means that the coastal state owns the resources and can allocate them, as well as regulate their exploitation.

On non-resource issues, however, the power of the coastal states is more restricted. Assuming the present balance holds in the Single Nego- tiating Text (SNT), the coastal state and the international community will be involved in deciding what scientific research can be conducted in the zone. The coastal state will probably have the upper hand. On the question of the marine environment, particularly as it concerns ship-generated marine pollution, both the coastal state and the international community (in the form of the International Maritime Consultative Organization) will be involved, with the latter having an edge. At the moment, it seems the dispute settlement provisions in the SNT will probably reinforce this trend?

How important is the economic zone concept in international law and politics? Is it just a vague but convenient notion that has no meaning except to those several thousand people that have followed the sessions of the Third Law of the Sea Conference? Do the declarations of the United States and Canada that they will implement 200-mile fishing zones in 1977 mean that the concept is no longer acceptable and that the earlier, simpler notion of a fishing zone is being returned to? The zone to be implemented by 1 January 1977 only extends Canadian jurisdiction over fisheries. The same is true for the United States legislation which comes into effect two months later. The SNT itself has at most the status of a draft treaty and widespread ratification is at least several years away.

The economic zone concept, however, is both alive and well. This seems to be true over both the short-term and the long-term future. As Article 45 suggests, control over fishing is just one part of the economic zone package of authorities. However, multilateral negotiations on this major economic zone resource have led to a wide consensus, and national legislation now being prepared in Canada and in many other countries generally reflects rather than contradicts the Single Negotiating Text. Moreover, the reason for proclaiming limited jurisdiction has been speci- fically not to upset the wider law of the sea negotiations. The U.S. legislation states that it will be superseded by international legislation when that comes into force.

2 The ‘territorial sea’ regime differs from that of internal waters in that the right of innocent passage of foreign vessels exists. 3 The dispute settlement rovisions for the Law of the Sea Convention as a whole are evolving on rather m d r a t e lines. f i e economic zone is generally exempt from the same standards that apply to other areas of the seas, but the role of dispute settlement with respect to the marine environment and scientific research is still extremely vague. A/CONF.62/W.P.S/Rev.l. Informal Single Negotiating Text, Part IV. Presented by the President of the Conference, 6 May 1976.

155 ADMINISTRATION PUBLXQUE DU CANADA

BARBARA JOHNSON

A most important exception to this harmonization of national and multilateral interests lies in the privileges to be given to landlocked and geographically disadvantaged states in the economic zones of neighbouring states or states of a region. The existing sm has not produced an acceptable compromise. Bilateral agreements made in Canada in 1975 and 1976 might make eventual accommodation on this matter impossible to reach. There are other exceptions; for instance, the American position in m 200 (the bill that established the U.S. 200-mile fishing zone) that highly migratory stocks such as tuna do not fall under coastal jurisdiction.

Over the long run, either some or all of the present sm will be ratified in close to its present form, or there will be no Convention and the economic zone concept will be expressed only in terms of national legislation or possibly in a partial multilateral treaty. In either case the concept is likely to survive. Mexico has already introduced legislation for a full economic zone and Norway and France and many others are preparing such legislation.

Looking at the 200-mile zones from the standpoint of international politics, it probably makes sense to avoid thinking of them as ‘closed’ areas under national authority. In many areas of the world the presence of national authority will be conspicuous by its absence. Even in those instances where there is an adequate capability to govern the zone, t h i s will still be a highly penetrated zone. That is to say, there will be a great deal of ‘outside’ influence in this zone, both in practical terms (e.g., commercial navigation and foreign fishing fleets) and in terms of institutional agreements (e.g., the International Maritime Consultative Organization’s role in standard-setting for ship-generated marine pollution in the zone). Precise boundary delimitations, either between states or at the outer limit of the zone, will often not be specified. Informal political arrangements may well develop between neighbouring states. The economic zone regime will probably not resemble the regime in internal waters, nor that in frontier areas, such as the Arctic, where there is a pattern of limited and specific national and international activities. Instead, it will be a zone in which there is a mixed pattern of interaction involving a variety of private and public interests, national and non-national. Some of these are already present, and reflect existing interdependencies; others will emerge in response to the new interdependencies generated by economic zone

From the standpoint of international politics, the economic zone ap- pears likely to emerge as an area criss-crossed by national, transgovern- mental and transnational interests and shaped by national, regional and international politics. From the standpoint of the Canadian politician and administrator, however, it is a new sphere of responsibility for which rules

politics.

156 CANADIAN’ PUBLIC ADMINISTFIATION


of the game and standards have to be drawn. How are these being drawn, and what is their political significance?

While economic zone legislation may be a patchwork effort extending over several years, the political assault on the old high seas regime will be unmistakable. Formerly free and unrestricted maritime activities will be increasingly regulated, whether national or non-national. Shipping will be monitored further and channelled into specified shipping lanes. Fishing boats, national or non-national, will be licensed. The method of fishing and the placing of fishing gear will be controlled. Foreign fishing, when it occurs, will be under permit and possibly only when ships carry self-monitoring devices. The surveillance of oil rigs, exploratory activity, and foreign ships entering the Canadian zone to do scienac research will become more intensive. Surveillance and enforcement procedures will become more coordinated and routinized within and between government departments. In particular functional areas, such as ship-generated pollution, both the flag state and coastal state will play a regulatory role, but generally the authority of the coastal state will become much more evident in the enforcement sphere. The extent to which such regulations, directly or indirectly, lead to limitations on foreign activity is yet to be seen. Reductions in scientific research and shipping activities as a result of extensive controls seem unlikely.

To what extent will the zone be ‘exclusive’ with respect to resource development? Offshore oil exploration will continue to be nationally regulated, but carried out principally by the major multinational oil companies.

In the fishery, the increasing number of regulations will be overshad- owed by the struggle to work out ground rules for allocation of the resource. This will produce contention internally - between the inshore and offshore sectors of the industry - and externally, as new relationships emerge with foreign fishing states. The prevailing set of bilateral agreements negotiated in 1975-76 suggests there will be continued, albeit reduced, foreign fishing activity in the zone. Yet, in the immediate future, coastal state controls (for instance, in setting an optimal rather than maximum sustainable yield) will sharply reduce foreign quotas. The complete exclusion of foreign fishing activity and an effort to build up a fully national fishery in the zone is at least a possibility in the long run.

How wilI governing the Canadian economic zone differ from managing the existing 12-mile territorial sea, fishing zones and continental shelf? Can these rules simply be extended out to 200 miles? The 1970 Territorial Sea and Fishing Zone Act provides for establishing legislation for further extension. Provisions of the Canada Shipping Act, Fisheries Act, Coastal Fisheries Protection Act and the Arctic Waters Pollution Prevention Act

157 ADMINISTRATION PUBLIQUE DU CANADA

BARBARA JOHNSON

could then be extended to 200 miles, with modiiications to bring them into line with the SNT as it develops. At present, it seems that the ‘Arctic exception’ will be preserved by defining the Arctic as a ‘critical area.’ Other areas in the world subject to abnormal conditions would fall into another category of ‘special areas.’

Can the economic zone be implemented simply be amending the existing legislation to extend to 200-mile boundaries and to correspond to the provisions in the SNT? The Canadian government’s decision to implement a 200-mile fishing zone rather than a m-mile economic zone, and to do it prior to multilateral signing and ratification of the SNT, means that in fact there will probably be modifications to existing legislation rather than a single coherent piece of economic zone legislation.

The kind of political regime likely to emerge in the Canadian zone depends in good part on the agencies interacting there. In trying to find the kinds of political interactions that will characterize the economic zone, it may be useful to look at the many different areas in which authority has to be exercised, and to look at some of the agencies, both national and non-national, which will be involved. This gives a broad picture of who would be involved in the zone. This is necessary in evaluating who is likely to administer the zone and under what circumstances.

Functions and interactions in the zone Many of the agency activities shown in Table 1 exist now and will simply have to be expanded with a 200-mile economic zone. This is particularly true with respect to continental shelf concerns, since a Law of the Sea Convention would only put the stamp of international legiti- macy on existing Canadian claims.

There will be new institutions to reflect new interdependencies, however. For instance, a renegotiated International Commission for North- west Atlantic Fisheries (ICNAF) Convention would create a fundamentally new arrangement reflecting coastal state dominance. Proposals to re- consider ICNAF were made in late 1976.

The evidence of Table 1 is, then, that the agencies needed to administer an economic zone are already largely in existence. The exception is the scientific research function, which presumably could fall under the De- partment of the Environment or the Minishy for Science and Technology.

Yet while existing agencies could be given additional authority to expand their separate areas of authority, this would be an undesirable solution by itself. The economic zone is economically and politically so significant that fundamental changes in political relationships will result from its introduction. Conflict, both intra-national and international will not be absent from economic zone politics. The inter-agency relation-

158 CANADIAN PUBLIC ADMINISTRATION

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ships shown in Table 1 have to be criticized in light of the conflicts that could develop in the economic zone.

Possible conflicts in the economic zone While recognition of the authority of the coastal state will resolve existing conflicts, the new powers of the coastal state with respect to resources, scientific research and marine pollution will generate new tensions as well.

The patterns of conflict in the future Canadian economic zone will be determined by extensions of existing conflicts (for example, Canada4J.S. differences over Dixon Entrance and Hecate Strait), by new problems stemming from economic zone legislation, and by new problems created by increasing use of the oceans for multiple purposes. Conflicts between fishing and drilling interests which have already emerged in the North Sea and Gulf of Alaska can be expected to emerge in other regions of the world, and to involve many political actors. In the Canadian zone, a mixture of private and/or public Canadian interests, private Canadian and non-Canadian interests, provincial, federal and foreign governments (pri- marily the United States) will cooperate and compete with each other in the zone.

Fishery conflicts These seem likely to take on three dimensions: a) inshore sector versus the offshore sector: This would involve largely Canadian interests (and involve the usual disagreements over gear clashes, quotas, etc.), but might take on a non-national flavour in that any cooperation between Canada and foreign fishing countries would involve the offshore rather than the inshore sector. b) competition between geographically disadvantaged states and traditional distant-water countries fishing off Canada for a share of any

c) conflict between recreational and commercial fishery development: While this has in the past been a problem largely for the United States, it is a conflict which has also been present in the Canadian salmon fishery and will no doubt develop in other fisheries.

surplus.

Conflict over non-living resources The principal issue here is the unresolved dispute between Newfoundland and the federal government over ownership of offshore mineral resources. In the area between 200 miles and the outer edge of the margin, there will probably be delimitation and revenue-sharing arrangements to be


BARBARA JOHNSON

worked out with the international seabed authority. If there is no international authority, however, these problems of accommodation will be replaced by severe conflict in this sphere.

Navigational conflicts The general widening of national and international regulations in this sphere will no doubt continue under a 200-mile economic zone. This should reduce rather than increase conflict as shipowners and captains become used to such regulations. However, the Arctic offshore region may become increasingly contentious as international transport increases. Such conflict would be aggravated by the failure of Canadian icebreaker technology to be developed,'

Conflicts arising from multiple uses of the zone

Such conflicts occur most commonly in the 'coastal zone' (the area of the land-water interface), but can be expected throughout the range of the economic zone. Some possibilities are set out in Table 2.

TABLE 2 Possible areas of conflict user 1 user 2 Point of Conflict

Commercial navigation fisheries the right of ocean space and the use of gear, concern over pollution the right to space, danger of collision (safety zones attempt

Commercial navigation oil and gas exploration and exploitation to reconcile both users)

Transportation of oil fisheries the possibility of pollution, by seabed pipelines Communications via fisheries interference with fishing gear submarine cable Exploration and com- environmental possibility of pollution mercial oil drilling protection Exploration and corn- fisheries possibility of pollution mercial oil drilling

interference with trawling

The impact of both exploratory drilling and commercial offshore development is of central concern in evaluating problems of multiple use.

4 Questron (Toronto: Oxford University Press, 1976).

Such risks are discussed in the final chapter of E.J. Dosman, ed., The Arctic In



Pimlott? for instance, has discussed the effects of dredging to build sand and gravel ‘ice islands’ as semi-permanent drilling platforms. He claims the dredging has destroyed spawning areas of Arctic fish. In the future, both Georges Bank and offshore Labrador may emerge as the key areas where exploitation of living and non-living resources is in conflict.

Canadian-American conflicts There is a range of opportunities both for conflict and for cooperation in this sphere. While the relationship should continue to be fundamentally a cooperative one, difficulties will be concentrated in several areas.

Most contentious will be agreement on a delimitation formula for the four unsettled boundaries. The likelihood that a single line will be drawn both for the shelf and the economic zone increases the stakes with regard to both oil and fisheries. The Georges Bank area will be difficult because of the fish and potential oil resources in question. Dixon Entrance will be difficult because of the long-held political positions by each side with respect to the location of the A-B line and to the 1970 fishing zone. In particular, the fishery closing line itself has to be upgraded, or dropped entirely - an unhappy choice for the Canadian government. Bi- lateral relations will also be troubled by the need to manage the zone in the region of the boundaries, regardless of if, when and how they are formally delimited. The problems involve overlapping oil and gas exploration permits, the matter of legal difficulties over who is to enforce the law against third parties in the boundary zone, problems of managing and allocating jointly shared stocks (among each other and in relation to third parties) and, with salmon, the problem of the need to either adjust boundary lines or enforcement activities in response to migratory patterns of salmon.

The American legislation, which comes into effect in March of 1977, establishes a 200-mile fishery and conservation zone rather than a ‘complete’ economic zone. It does establish a detailed system of fishery government within the 200-mile zone. There are eight regional marine councils, with state and federal officials being voting members and non- governmental representatives being non-voting members. These parallel rather than replace existing regional associations of state fishery people. The very strong influence this gives the states in fishery government is somewhat offset by the authority of the Secretary of State to appoint two-thirds of council members and to review the fishery management plans of each council.

The legislation itself further confirms the importance of the states in

D. F’imlott, D. Bmwn and K. Sam, 011 Under the Ice: Offshore Dtllling in the 5 Conudiun Arctic (Ottawa: Canadian Arctic Resources Committee, 1978).


BARB- JOHNSON

fishery planning, noting that fishery conservation measures must be made ‘taking into account social and economic needs of the States.’ The legislation retains traditionally narrow biological definitions of conservation and management. It does, however, place recreational fisheries in a stronger position in relation to commercial fisheries than previous legislation.

What kind of relationship does it envisage between foreign fishing fleets and the councils in the zone? Foreign fishing consistent with the provisions of HR 200 is to be allowed. However, one goal of the legislation is to expand fisheries not presently utilized by Americans, so that foreign fishing will no doubt be very sharply curtailed.

The American legislation: direct and indirect effects on the Canadian zone

The closeness in timing with which American and Canadian legislation will be implemented naturally removes many difficulties. HR 200 will not fully eliminate critical problems for a Canadian 200-mile fishery or economic zone, either over the short term or long term. By its very existence it will affect the nature of a Canadian zone.

As described, delimiting American-Canadian sea and shelf boundaries and working out an acceptable regime for surveillance and enforcement in boundary regions can be expected to provide difficulties at least initially.

The strong role given the individual states in the American zone will certainly .affect the decision-making process and outcomes themselves. For example, in the marine councils which border the Canadian zone (the New England Council, North Pacific Council and the Pacific Coun- cil), there will probably be trilateral coordination - between the state and the two federal governments. Moreover, the stronger role taken by the state (as in the case of the Washington State Indian fishery) will have repercussions for both federal governments. The American states will have ocean jurisdiction to 12 miles rather than 3, once the United States moves to adopt a 12-mile territorial sea, and this will further change the nature of the US-Canada relationship.

In the case of stocks straddling both zones, relations with third states will provide difficulties. For example, who would have the right to ‘rent’ the Pacific hake stocks? The scallop and halibut fisheries pose particular problems for Canadian entry, and the problem of whether the reciprocal agreement should be fully extended to cover the 200-mile zone (and applied to new as well as traditional fisheries) will have to be settled.

Problems of economic zone politics In thinking through how the Canadian economic zone might emerge, the potential worst outcomes should be recognized as much as future oppor-

1% CANADIAN PUBLIC ADMINISTRATION


tunities. The Canadian economic zone will be troubled by at least three problems. The first is the possibility that the need to make initial and continuing political choices in the zone will not be acknowledged by political leaders. In this case this would leave government agencies dis- pensing supposedly technical solutions for problems that are anything but technical. The allocation of fishing between inshore and offshore sectors of the industry is a choice that should be made rather than side-stepped and imposed through technical regulations.

The second hazard is the possibility of spending too much or too little money in the zone, or of spending the right amount in the wrong place. Subsidization of Canadian fishing is often identified as the focal point of concern. Yet there are two areas in particular where this seems just as troubling. The first is scientific research, an area where it is well known that five or six foreign countries have done much of the work in Canadian waters with respect to oceanography and living resources. The second area is that of general monitoring and surveillance in the zone.

Grounds for concern about scientific research efforts in the zone are found in the failure of the present government to promote research and development of Canadian science and technology. The federal government has failed to commit itself to a major underpinning of marine scientific research and technology in the Arctics6 This is not a good omen for such funding in the economic zone. In the Beaufort Sea and tar sands cases, the problem seems to have been that the government was entirely dependent on oil company estimates of demand, feasibility, technological problems and so forth.’ The same difficulty would no doubt affect further offshore development on the east coast and in the Arctic. While the existence of a significant Canadian capability in living resource management makes this less of a problem for fisheries in the zone, the problem should not be ignored here either.

Enforcement costs are those stemming from the total system of monitoring, surveillance and physical enforcement in any activity in the zone. A Norwegian report considering surveillance and enforcement costs in the 200-mile zone and over the continental shelf has noted: Besides monitoring functions, the increased activity in these areas necessitates an increase in the State’s contribution to the rescue service, telecommunica- tions, weather-forecasting, environmental hazard preparedness, tasks directly associated with the day-to-day operation of shipping and air t r d c , customs in- spection and so on. Responsibility for the new tasks arising from the extension of Norwegian jurisdiction has largely devolved on existing institution^.^

6 See, in particular, J.W. Langford, ‘Marine Science, Technology and the Arctic: Some Questions and Guidelines for the Federal Government,’ in Dosman, ed., The Arctic in Question, pp. 163-92. 7 L. Pratt. The Tar Sands: Suncrude and the Politics of Oil (Edmonton: Hurtig Publishers, 1976). 8 OfidaZ Report ( m u ) 1975:50, Ministry of Defence, Norway.

‘Surveillance of Fisheries and Petroleum Activities,’ Chapter V in Norwegkrn


BARBARA JOHNSON

These are all areas in which there is already some capacity by national agencies. The question in Canada, as in Norway, is whether existing arrangements can be expanded to provide a suitable structure for the economic zone, If they are, what are the implications in terms of bureaucratic politics? The only new function that is not mentioned in the Norwegian report is the need to control scientific research on the shelf and in the economic zone. The Canadian and Norwegian situations differ principally in that the federal system in Canada would require more coordination between Ottawa and the provinces over the zone's government.

How expensive is the economic zone going to be? So far, very little in the way of even informal estimates have been made available to the public. This has probably increased the amount of speculation. For example, both the funds needed for an adequate surveillance and for an adequate oceanographic research program have been suggested to be very high!

How much should be spent? Both scientific research and surveillance requirements should be major recipients of economic zone funds. The Norwegian study, for instance, estimated that a quadrupling of the present budget would be necessary for fisheries enforcement in a 200-mile zone. The United States projection is for an additional $25 million for 1977. Present Canadian studies have suggested an eventual $15 million annual operating costs will be involved for the enforcement of the 200- mile fishing zone. An extra $4 million has been allocated for this first year. The assumption of full economic zone jurisdiction will considerably increase these costs, due to the greater relative difficulty of detecting and apprehending violations of anti-pollution legislation.1°

Present amounts budgeted may be inadequate. Unhappily for the Treasury Board, the costs of the zone will not be minimal if it is to be run properly. Since the present government does not seem likely to spend large amounts on either scientific research and development in the zone, or on surveillance and enforcement, it is important to use what money is available in the right place. There is a perception among government officials now that the bilateral agreements make major enforcement expenditures unnecessary. Compliance-oriented strategies can reduce enforcement costs in the zone, but not below a certain level. An initial investment in vessels still has to be made. Scientific research on stock assessment can be carried out by foreign private and state interests, but not to that point where Canadian scientific capability cannot put the

9 See, for instance, T.R. Parsons (Institute of Oceanography, University of British Columbia) in a letter to the Vuncouoer Sun, 1 June 1976, 10 N. Tracy, The Enforcement of Canada's Continend Madtjme Jurisdiction, Operational Research and Analysis Establishment Report No. R44 (Ottawa: Depart- ment of National Defence, 1975).

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GOVERNZNG CANADA’S ECONOMIC ZONE

right questions to their estimates. At the moment, however, the Depart- ment of the Environment seems to be in the position of trading off enforcement costs against scientific research costs.

Many of the decisions to be made about the zone, both in setting it up and administering it, are political ones. That is to say, decisions about managing the zone, regulating conflicting uses and allocating zone resources will determine which ocean users get what, why and how. For this reason it is necessary to envisage structures at the political level even more than at the administrative level.

The third of the ‘worst outcomes’ is that the economic zone will be set up and governed without any significant public participation. In the likely event that the economic zone is introduced piecemeal, and on the basis of existing legislation, the governing philosophy for the zone may never be discussed as a coherent whole in Canada. There will doubtless be consultation between governments and the ‘most concerned’ public (that is, the affected industry and the people it supports in a Canadian economic zone).” This is not the same thing as determining the ‘public interest,’ nor should the interest of the government be equated with that of the larger community. Defining the public interest is rarely simple. However, it is possible to say what it is not. It is not adequately expressed by a compromise between governments and the set of particular private interests affected.

Possible roles of government in the economic zone

As in any sphere of public activity, there are three possible relationships between the federal government and its clients in the economic zone. These are: a) laissez-faire: In this case the government would impose few regulations in the zone and essentially let the industries regulate themselves. Few governments would formally make this choice, although in practice this will happen in many national economic zones. b ) regulatory: In this case the government acts, supposedly in a disin- terested fashion, to adjudicate conflicts in the zone and provide such rules as are necessary for the orderly conduct of activities in the zone. c ) corporate: In this case the government not only regulates but also sets up its own public enterprises in the zone.

The laissez-faire approach is not in vogue so can be put aside for all practical purposes. The choice then is between the regulatory and corporate model.

11 See, for instance, Policy for C a d s Comrnerdol Fisheries (Ottawa: Depart- ment of the Environment, May 1976).


BARBARA JOHNSON

In evaluating the future of the economic zone, it is important to look on it not as bringing a new territory to place under centralized political administration. Instead, the economic zone will contain a bureaucratized and functionally diffused political structure linked to politics in the provinces, in Ottawa, in the American states and in Washington, and in international organizations. The interdependencies are reduced and re- defined. In particular, the political relationship between the coastal states and other users, on most matters, is no longer between equals. A relationship is still there, however.

In the absence of any proclaimed policy on what the Canadian government does expect from its economic zone, six guidelines might be applied to thinking about the economic zone:

1. Promote conflict management. Some areas of potential intra-national and international conflict have been outlined. Changes in the domestic political system which might allow better management of intra-national c o a c t are discussed below. In the case of international conflict, informal coordination mechanisms may be necessary on matters such as the proce- dure for enforcement against third states in disputed boundary regions.

2. Avoid w(Iste. This goal now seems to be universally acceptable, whether taken up by Mao Tse-tung or Barbara Ward. In terms of fisheries, it implies reducing ‘incidental’ catches which are usually thrown overboard, allowing others to fish for under-utilized stocks that Cana- dians cannot take economically, and using fish as much as possible for food rather than reduction.

3. Make it economic. Federal costs of administering the zone should be a reasonable proportion of the revenues from the zone, and certainly should not exceed those revenues. Government costs involve maintaining a well-paid civil service as much as they do subsidizing the fishing industry. This also requires that the right level of regulatory and enforcement ac-

tivity be found. What is needed is maximum compliance for the least economic and political cost. This equation has to be struck both for Cana- dian and foreign vessels, and eventually both for fishing and vessel-source pollution control. This does not mean that government expenditures should be minimal. Substantial investment in a fleet of coastal patrol boats built specihally for fisheries and pollution control is probably an essential part of running the zone economically.

What this really amounts to saying is that all costs should be looked at in governing the zone. One cannot, for instance, evaluate the cost of maximizing the economic rent by leasing fishing rights to foreign fleets without looking at the impact of the inshore fishery and enforcement and security processes.

168 CANADIAN PUBLIC ADMINBTRATION


4. Provide endronmental protectwn, The SNT itself imposes few effective restrictions on coastal states in terms of their right to indulge in ocean pollution from land-based sources. Thus, Canadians will have to impose some discipline on themselves with respect to land-based pollution.

International standards, as set by the International Maritime Con- sultative Organization (IMCO), will govern the Ievel of vessel-source pollution acceptable off the Atlantic and Pacific coasts of Canada, and in the Gulf of St. Lawrence, depending on whether or not it is placed under the regime of internal waters or the economic zone. At the moment, these standards are those set in the 1954 Convention and the 1989 Amend- ments, the 1973 Convention not yet being ratifled by an adequate number of states. Since new ships are now being built to IMCO standards, the use of IMCO standards themselves will not be a serious barrier to effective pollution control. The practical difficulty of devising cost-effective meth- ods of pollution control through deterrence and actual enforcement will of course remain.

In the Arctic, the right to set higher than international standards has been permitted in the present revision of the draft articles. Thus, vessel- source pollution will not be a critical concern in the economic zone. Un- fortunately, pressure to discover oil and gas reserves will make it increasingly difficult to protect the marine environment, whether in the Arctic or on the east coast. Neither the general fear of a serious spill in an ecologically delicate area nor the prospect of damage to the commercial or sports fishery is likely to deter drilling. Such drilling is presently regulated by the Oil and Gas Regulations. Pimlott et al., in their book Oil Under the Ice, point out that these regulations provided an inadequate structure for evaluating the environmental effects of offshore drilling in the Arctic.

The possibility that the entire offshore oil industry would eventually come under public ownership has some merit. While it would provide no guarantee of environmental protection, it would at least ensure that there were some controls over the pace and focus of development. Whether the building up of Petrocan in key areas can full3 this same function is yet to be seen. Another possibility lies in partial ownership, such as the government’s 45 per cent share in Panarctic Oils.

5. Zmprove the economic situation of Atlantic communities. As such this is a fatherhood goal; deciding exactly how it is to be done is what is contentious. The first, and easiest, matter is the rebuilding of the Atlantic groundfish fishery, which is estimated to take five to ten years. After that, an adequate investment in scientific research will have had to be made so as to improve the presently crude biological models available.

It will be equally important to determine what mixture of inshore

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BARBARA JOHNSON

versus offshore development should take place. The role of foreign participation in the zone will be part of this decision, since foreign participation would occur in the offshore rather than the inshore sector.

6. Maintain international uses of the zone, particularly with respect to commercial shipping and oceanographic research. On the east and west coasts this does not seem likely to be contentious, except in the instance of Head Harbour Passage. However, the possibility of an expansion of international shipping in the Arctic is a much more uncertain ‘desired’ goal. Presumably the development of American commercial icebreaking cargo ships is not desirable from the Canadian standpoint unless an adequate regulatory capability is built up. As noted in The Arctic in Question, there is no evidence that such capabilities are being developed.

What changes will occur at the administrative level in response to the extension of authority over the economic zone? Is a Department of Ocean Affairs, such as the United States set up with its National Ocean- ographic and Atmospheric Administration, likely to emerge? There is some sympathy in Canada for a single maritime department. Langford has noted12 that such a department would bring together all the maritime functions except the defence function.

At present, the question of integration of government activities in the economic zone is under discussion in Ottawa. Such integration could consist simply of operations coordination or could be extended to the consolidation of planning and decision-making activities. Determining whether monitoring, surveillance and related enforcement activities should be carried out by the present multiplicity of agencies or be combined in an enormously expanded Coast Guard is still under review.

The eventual outcome of this debate may be a quite limited degree of integration. There are four departments which have a principal concern with the economic zone - Environment, Defence, Transport and Energy, Mines and Resources. Treasury Board, Justice, Indian Affairs and Northern Development, Science and Technology, and External Affairs have strong supporting interests in the zone. As far as political salience and the related capacity to get things done is concerned, it is by no means certain that bringing together parts of these departments would increase the influence that could be brought to bear on ocean matters. It could just as easily diminish the influence departments have singly, particularly the major departments.

Moreover, past recommendations in favour of integrating sectors of maritime activity have gone unheeded, since agencies do not willingly give up their functions. With the prospects of expanded Canadian authority in a 200-mile zone, departments are likely to want to maintain

12 ‘Marine Science, Technology and the Arotic,’ p. 180.


GOVERNING CANADA'S ECONOMIC ZONE

and to expand their existing mandates. In any case, it is the quality of the political decision-making rather than administrative reorganization that will be most critical for the future of the economic zone. Certainly the tremendous shifts in programming and personnel required to create a new department seem unwarranted.

If there is no single maritime agency, the question of which agency has primary responsibility for managing the economic zone becomes critical, Just how important this matter is has already been seen in the case of offshore oil exploration in the Arctic. Pimlott has described the process by which the Department of Indian Affairs and Northern Devel- opment was given primary responsibility for administering the Arctic Waters Pollution Prevention Act.'* Developmental goals then had first priority and the Department of the Environment was relegated to a technical and advisory role. It would seem undesirable to repeat this mistake.

The fact that the economic zone is being introduced piecemeal, rather than as the result of a single piece of legislation, will itself affect the development of the zone. Since Environment obviously has primary responsibility for administering a 200-mile fishery zone, it has now got a head start on other agencies in terms of ultimate political strength in the economic zone, Combined with its mandate for environmental protection, the department at least has the potential to be the key agency in economic zone politics.

Two means of upgrading the political salience of ocean matters can be suggested. First, the entire cabinet might review activities within the economic zone as a whole at regular intervals. Another possibility would be for one of the cabinet committees to undertake responsibility for the zone on a continuing basis. In either case, some additional expertise will be required among Privy Council staff.

Secondly, a Standing Committee on Ocean Affairs could be set up by the House of Commons. This could be done by restructuring old committees rather than setting up an entirely new one. The existing Standing Committee on Fisheries and Forestry could be split, since there seems to be no logical reason why fisheries and forestry should remain together. Then, other issues such as continental shelf exploitation, marine environment, and Canadian oceanographic research could be added.

The point of both these restructurings is twofold. First, they increase the political visibility of the economic zone, and make it more likely that the zone will get the attention it deserves. Secondly, and no less important, they would provide an integrated perspective on the economic zone. This would improve the quality of decision-making concerning the zone. It would encourage awareness that the uses to which the zone

13 Oil Under the Sea, p. 29.


BARBARA JOHNSON

is put are interrelated, and that there is a broad public interest in the overall governing of the zone, rather than just specific publics active on individual issues. As with all of the parliamentary committees, its per- formance and output would be partly tied to its back-up staff. Staff sizes of the present committees, for example, are widely known to be inadequate.

There is one area in which these proposed structures may be inadequate. That concerns federal-provincial relations, particularly with respect to division and administration of the continental shelf. The economic zone itself has less impact on federal-provincial relations, since under the British North America Act provincial governments only have jurisdiction over internal waters, (Making the waters within the 1970 fishery closing lines internal does of course touch on a matter very much of provincial concern.) Moreover, continental shelf exploration and exploitation of oil may conflict with other provincial and federal interests in the zone.

Conclusion In coming to an understanding of the politics among functionally spe- cialized agencies it is essential to determine who the clients are. Much of bureaucratic politics is client-oriented. That is to say, the regulatory agency promotes and defends to the public and to the central political leadership the clientele it is supposed to be regulating. The clients in the economic zone will consist of the major multinational oil companies, the coastal and international shipping community, national fishing companies, fishermen’s associations and individual fishermen, foreign fishing interests, ports and coastal communities.

If the government agencies act to defend their clients’ interests, is there any need for anyone else? Yes. The involvement of the most concerned groups and individuals14 is of course essential, but the broader public has a right to be represented in the zone. Thus, consumer and environmental groups, as well as commercial and recreational fishery groups, should be represented in the zone.

Without such external input, battles over the future of the zone will be decided on too narrow a basis. In the case of a single use of the zone, the agency having primary responsibility will decide the case. When there are shared responsibilities for some development of the zone, inter- agency politics will be the deciding factor in determining the policy outcomes.

If advisory committees are to be the means of providing public input, they should be recruited from a wide range of interests and should be

14 For instance, the Deparhnent of the Environmd’s Policy for Canada’s Com- merdal Fisherfes takes note of the need for continuing consultation between government and industry in management of the zone.



able to operate independently of any single agency. For instance, Lang- ford has noted that the sub-committees on Science and Technology and Transportation for the Advisory Committee on Northern Development were placed under DINA and never developed an independent role. Ad- visory groups need to be able to carry out a broad review process, have access to government information, and be able to publish at least parts of their results.

The emergence of the economic zone in national and international politics is now a reality. From being a contentious concept interna- tionally, it could easily become a divisive one nationally. The patchwork manner in which the economic zone will probabIy be introduced in Canada means that extra efforts will be needed to ensure that the public interest - conceived in the widest possible terms - is properly represented in the zone. In particular, there is a need to provide channels for broad public participation in economic zone deveIopment. This is particularly important in the case of resource exploitation and in the case of research and development needs. In the long run, Canadian effec- tiveness in the zone rests on a capacity to develop scientific and technological capability in key areas such as enforcement and provision of coastal support services in the Arctic. Finally, the government will have to make decisions which may be politically di5cult but essential for the successful administration of the economic zone.

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governing canada's economic zone

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