Lobster Poaching and the Ironies of Law Enforcement
McMullan, John L., Perrier, David C., Law & Society Review
This article studies law in action as it relates to organized lobster poaching in Canada. It examines the distinct pattern of relationships that constitutes poaching as a business enterprise and analyzes how "living law" operates as an ironic facilitative form for that which it tries to control. We argue that business poachers evade, avoid, and neutralize fishery laws and regulations by creatively using and manipulating the legal boundaries and organizational resources at their disposal. In effect, the law is an enabling structure for blue water illegality. We analyze business poaching activities as a type of workplace crime, and we account for regulatory failure in the lobster fishery.
This article studies "law in action" as it relates to poaching in the lobster fishery of Southwest Nova Scotia, Canada. For decades, tensions between fishers and the state have been escalating. Conflicts over quotas, regulations, licenses, procedures, and enforcement have been widespread and volatile. Poaching has become what Scott (1986:18) terms "a routine form of everyday resistance," part of the ongoing process of testing and negotiating the terms of lobster harvesting and merchandizing. Central to the development of poaching have been a series of legal changes whereby informal, community-based property rights, local management strategies, and folk forms of resource knowledge and use have been displaced and outlawed by new state property rights and claims and by new social regulations about harvesting, development, and management (Hanson & Lamson 1984; Apostle, Kasdan, & Hanson 1984; Barrett 1987; Clement 1986; Davis & Thiessen 1988; Sutinen & Gauvin 1989; Sutinen, Rieser, & Gauvin 1990).
This regulatory explosion has resulted in a climate of uncertainty for fishers, social divisions among them, and conflicts between fishing communities and the state. The media characterization is one of "lobster wars," "black market fisheries," "piscatorial piracy," and "coastal communities on trial." Indeed, the prosecution records of the Department of Fisheries and Oceans (DFO) reveal the seriousness of business poaching. Of the 531 reported lobster offenses we studied, three-quarters of them were committed by commercial fishers and involved offenses such as using illegal gear and fishing undersize lobsters (McMullan, Perrier, & Okihiro 1993:128-30). Of course, these statistics tell only part of the story. We found that there is also a large hidden figure of unrecorded illegality in the fishery. While prosecution files provide useful information about the age, location, attitudes, and behavior of offenders and about the methods of law enforcement, they do not provide a coherent understanding of either the social organization of poaching or the legal relations and enforcement strategies surrounding the translation of law into social practice.
Our concern in this article is to examine the distinct pattern of relationships that constitutes business poaching in Southwest Nova Scotia and to analyze how law operates as an ironic facilitative form for that which it tries to control. We study how and why business poachers creatively use and manipulate the legal boundaries and organizational resources at their disposal to effectively evade, avoid, and neutralize fishery laws and regulations. We examine how lobster fishing is an encapsulated operation within a larger system that renders it susceptible to insider illegality and illicit organization as a business racket. "Living law," in this instance, combines lawful and unlawful behavior and demonstrates that rules and regulations may be exploited by small independent producers to support their interests even though they do not possess much power or enormous wealth.
This article is organized as follows. First, we discuss our research methods. Second, we outline the regulatory regime governing the lobster fishery and discuss how this has contributed to social conflict between fishers and the Department of Fisheries and Oceans. …