Unlike the Yaeyama archipelago and similar still essentially rural areas, in such parts of Japan as the Inland Sea, where customary sanctions and community mechanisms for conflict resolution have broken down in the face of modernization or as a consequence of a greatly increased fishing population, competition among fishermen -- in a great many instances motivated more by economics than pride -- is intense and the disregarding of official regulations and law-breaking more frequent and flagrant. In some areas the incidence of criminality and litigation among fishermen is relatively high, as are conflicts among FCAs, between prefectures, and among different sectors of the national economy in general. Under such circumstances most conflicts are resolved by formal means.
The Formal Resolution of Local Fisheries Conflicts
In such isolated areas as the Yaeyama Islands, as demonstrated in Chapter 3, most problems and conflicts are still resolved by informal mechanisms within the fishing community. Flagrant infringement of prefectural and FCA regulations is relativelyrare, judging from Coast Guard records, although there is no way of knowing what percentage of illegal activities escape detection. It is noteworthy in this respect that both fishermen and the Coast Guard report that fishermen themselves sometimes inform on their peers who engage in illegal activities. In some cases this could be interpreted as an element of competitive behaviour. Apprehended law-breakers are fined by the authorities and the worst or repeat offenders suspended from fishing. In Okinawa, and especially in remote Yaeyama, as in many other parts of rural Japan, the threat of suspension alone is a major deterent to would be law-breakers, since alternative jobs are scarce in the narrowly-based economy, especially for men whose formal education ended with middle school.
Coast Guard records reveal that among Yaeyama fishermen the commonest illegal activities are gill netting during the summer closed season -- violators are easily apprehended since this activity is not readily concealed -- with one case recorded in 1977, seven in 1980 and four in 1981. Twenty instances occurred of taking spiny lobsters during the 1976 closed season, but none subsequently, as did three cases of exploiting coral without a licence. One case of “dynamite” fishing and 19 cases of using arsenic as a piscicide were recorded in 1977. No illegal activities were detected in either 1978 or 1979.
An emerging but still relatively minor activity in Yaeyama is the incompatibility between certain fishing technologies. Particularly problematical are the fixed nets operated by six fishing units. According to an FCA regulation these nets should be relocated weekly, but in practise this is ignored. As noted above, conflicts with gill netters are quite common, since both technologies utilize the same sites, and, in addition, neither squid trolling or fish driving can be conducted where fixed nets have been emplaced. The same problem in waters off the main island of Okinawa resulted in the prefectural government banning the use of fixed nets in those waters from July, 1982. But since the number of fixed net operators in Yaeyama waters remains small the problem should be amenable to solution either by enforcing the existing regulations pertaining to weekly relocation, or via the fishing community's informal mechanisms that might, say, reserve specific sites for fixed netting only. However, if the informal mechanisms fail to find a solution -- as in the case of the bait fishery -- the FCA will certainly be called upon by users of other technologies to enforce its rule. And should the number of entries to fixed netting, in particular, increase, then the possibility of an outright ban, as off Okinawa Island, is not unlikely.
During the 1940s and 1950s, in waters near the Inland Sea village of Takashima, Okayama Prefecture, occasional small-scale poaching and the robbery at sea of returning fishing boats was reported. Such offences were reported both to the local police and to the Coast Guard. Fishermen themselves sometimes apprehended the culprits and turned them over to the authorities (Norbeck, 1954).
Befu (1980) observes that despite 70,000 fishermen operating in the Inland Sea only 1,529 arrests for breaking fisheries regulations were made in 1975, a mere 2 percent of the total number of fishermen. Of these, 1,256 were for fishing without a permit, 132 for fishing during a closed season, 128 for using prohibited gear, and 13 for miscellaneous violations. It is noteworthy that district officers estimated that the authorities apprehended only some 10–20 percent of all violators, owing largely to a lack of resources to fulfill all their maritime duties and a higher priority given to other tasks.
One of the consequences of heavy industrial pollution in the Inland Sea has been the tainting of fish, which then become unsaleable. As a result of the protests of fishermen who operated in Mizushima Bay, for example, local government and industry established a fund to purchase such fish. This, of course, provided a splendid opportunity for unscrupulous fishermen to dispose of as unsaleable perfectly good fish that they had failed to sell, for 70 percent of their market price (Befu, 1980). Other such opportunities have arisen, thwarting the good intentions of government. For instance, certain highly polluted waters in Mizushima Bay are now off-limits for fishing, since the government bought up all the fishing rights. “This, however, has not prevented some fishermen from sneaking into this area, occasionally mixing the fish caught there (easily, since no one fishes there any more) with perfectly good fish and selling them to unsuspecting wholesalers” (Befu, 1980: 339–340).
Conflicts beyond the scope of an individual FCA to resolve, but within a single prefecture, metropolis or fisheries district of Hokkaido, are taken before the Sea Area Adjustment Commission, whose decision is binding.
Formal Resolution of Higher Level Fisheries Conflicts
An encyclopeadic treatment of the history, decision-making processes and outcomes of scores of such conflicts has been made by Kaneda (1979), and the so-called “Seven Greatest Fisheries Incidents in Japan,” drawn from that compilation, has been published by Matsuda and Kaneda (1984). Three of those incidents are summarized here to illustrate the kinds of major inter-prefectural fisheries problems that have arisen, their historical and social context, the procedures employed in conflict resolution and the solutions that have been adopted.
(1) The Kyuroku-to Incident: Jurisdiction over Reefs and Islets
A classic example in Japan of this type of fisheries dispute is the Kyuroku-to incident. Kyuroku-to is a reef located in the Sea of Japan off the boundary between Aomori and Akita prefectures, in northern Honshu (Fig. 5). The reef is a group of three rocks that, depending on the tide, is either submerged or emergent. Several times both Aomori Prefecture and Akita Prefecture sought sole fisheries jurisdiction of the reef. In 1891 the former unilaterally declared both the ownership of Kyuroku-to and sole jurisdictional rights to the fisheries area surrounding it. Akita objected and was upheld by the Meiji government, which forced Aomori to withdraw its claim and to negotiate a management plan with Akita for the reef area. An acceptable solution was reached in that both prefectures independently granted licenses to their own fishermen to operate in the waters around the reef. Aomori Prefecture established demarcated fisheries rights there for abalone and conch fishing in 1929 and set net rights in 1934. Akita Prefecture licensed its own fishermen to collect abalone and conch and later to use set nets at about the same times. Nevertheless, both prefectures continued to seek exclusive fisheries rights to the area, and the central government rejected their proposals in 1928 and 1929.
Following World War II the waters around Kyuroku-to became an important area for the purse seining of Akta mackerel, and incidents between fishing units from the two prefectures increased in frequency and severity. Further, at about the same time, the passage of the 1949 Fisheries Law required that both prefectures propose fisheries management plans for their fishing grounds.
Aomori announced its first fishing grounds utilization plan according to the new law in the summer of 1951. Under that plan the waters around Kyuroku-to were included in its common fishery right area. Shortly thereafter Aomori went further in asserting its claim by registering the ownership of Kyuroku-to fishing rights to the fishermen of its own Fukaura District.
Akita responded by lobbying the Ministry of Agriculture, Forestry and Fisheries requesting that the exclusive rights to Kyuroku-to be awarded to Akita fishermen, who, it claimed, depended more on fishing in those waters than did the men from Aomori. While the Ministry was investigating the claim, Akita also unilaterally declared ownership of the area, which it registered to the Iwadate Village FCA. Under these difficult circumstances, at the end of 1951, the Ministry became involved in unsuccessful mediation between the two prefectural governments.
In the meantime the cabinet of the central government concluded that under existing law unregistered rocks or islets could not be registered to any one administrative unit, and that pending resolution of the conflict the waters of Kyuroku-to were under the direct jurisdiction of the Ministry, based on Article 136 of the 1949 Fisheries Law. Although this conclusion was announced to the governors of both prefectures in late-December, 1951, the governor of Aomori nevertheless chose to ignore it. He went ahead and issued licenses on January 1, 1952 to Aomori fishermen. In response the cabinet invalidated Aomori's fisheries management plan together with the prefectural fishing licenses. Akita Prefecture, on the other hand, accepted the cabinet's decision.
By the middle of the following year the central government revised the Local Autonomy Act to ensure that in future the cabinet alone would determine the registration to local administrative units of unregistered areas. Further, it was also concluded in March, 1953 that a special law was required to obviate such acrimonious disputes. Under that law, in cases like Kyurokuto the Ministry would have sole jurisdiction, in lieu of prefectural governors, over all problems associated with fishing licenses and the like.
Eventually, during 1953, the problem was solved through legislative procedures of the central government. In July of that year a memorandum, based on Article 136 of the Fisheries Law (1949), was signed by the governors of both prefectures and the Ministry. It granted licenses to fish in Kyuroku-to waters in August, 1953. This was complemented by the Special Fishery Right Treatment Law Concerning Kyuroku-to, enacted in August, 1953. Then, based on a revision to the Local Autonomy Act, the central government registered Kyuroku-to to Aomori Prefecture, in October, 1953.
(2) The Ariake Sea Incident: A Territorial Dispute
The Fisheries Law of 1901 required that all prefectures codify their fishing grounds for the issuance of licenses for prefectural exclusive fishery right areas. No problems arose in areas where coastal waters could be clearly assigned to a single administrative unit, but serious incidents arose in areas such as the Ariake Sea, in Kyushu, in which fishermen from both Saga and Fukuoka prefectures operate. As a consequence of the claims and counter claims based on historical precedents that arose from the need to define exclusive fishing rights territories according to the 1901 law, numerous fisheries incidents and fighting with bloodshed occurred between small groups of fishermen in the Ariake Sea during the period 1902–07. Direct negotiations between the two prefectures' fishery administrations were in vain, so the Ministry stepped in and successfully concluded an agreement in mid-1908 (Fig. 6.1).
With the post-WW II change in fisheries administration, Fukuoka Prefecture claimed, in April, 1951, the boundary line ae in Fig. 6.2, whereas Saga Prefecture insisted that the original boundary (ac) be maintained. Ignoring Fukuoka's claim, Saga announced its own common fisheries rights area management plan in May, 1951, based on the 1949 Fisheries Law.
Fukuoka protested Saga's action and announced its own plan two months later. As a result of these conflicting management plans some fishing grounds in the Ariake Sea became jointly claimed by both prefectures. This situation was untenable, so in late-1951 the Fisheries Agency of the central government stepped in to mediate.
During this mediation Fukuoka Prefecture invoked the basic philosophy of the 1949 Fisheries Law by claiming that its fundamental intent was to democratize fisheries with the dual objective of increasing fisheries production and improving the welfare of fishing communities. Based on this, Fukuoka claimed that under the conditions prevailing before the enactment of the new law its fishermen working in the Ariake Sea without enjoying exclusive fisheries rights had been forced to pay to absentee Saga fishery rights owners unreasonably high entry fees, and had also suffered from unstable incomes. Fukuoka charged that by such means absentee Saga fishery rights owners, who possessed neither boats nor gear, had exploited poor Fukuoka fishermen, who, in order to make a meagre living had had no alternative but to accept the onerous conditions imposed by those Saga rights owners. Thus according to both the spirit and letter the of the new 1949 Fisheries Law the fishing grounds in the Ariake Sea should be opened only to these working Fukuoka fishermen and that the absentee Saga rights owners should be totally excluded.
Further, Fukuoka Prefecture claimed that the 1908 agreement between the two prefectures had been maintained at a cost to Fukuoka fishermen, who, in terms of catch size and working fishing units, had a much larger involvment and interest in the claimed area (surrounded by lines a, b, c in Fig. 6.1) than did Saga fishermen. And since the exclusive fisheries rights area of Fukuoka Prefecture in the Ariake Sea was only about one third the extent of that of both prefectures combined, the Fukuoka fishermen depended for a large percentage of their livelihood on catches made in the Saga exclusive rights area. In fact, Fukuoka men had utilized 90 percent of the claimed area. Thus, Fukuoka's petition concluded, the outer boundary for Fukuoka fishermen was unfair and should be changed to line ae.
Figure 6. Mediation Map of the Ariake Sea Fisheries Incident
ab: Outer limit for Fukuoka fishermen; ac: the boundary;
ad: Outer limit for Saga fishermen; and ae: proposed outer limit
to Fukuoka fishermen for free fishing.
Saga Prefecture countered with the claim that the 1908 agreement had been concluded after a thorough consideration of pre-existing conditions, and, since order had been maintained in the Ariake Sea fisheries during the ensuing 40 years and fishermen from both prefectures had without serious incident established good fishing grounds in the area, that there was no valid reason to alter the existing situation. Further, since the changes proposed by Fukuoka Prefecture directly threatened the livlihoods of Saga fishermen, Saga Prefecture could not accept them.
Saga Prefecture proposed to solve the problem by concluding an open access agreement between the two prefectures, based on the perceived greater dependency of Fukuoka fishermen than those from Saga on the area under contention. Further, Saga contended that its claim was the stronger since it had improved productivity of the shellfisheries of the area via its aquacultural endeavours, and that it had promoted resource conservation via managing orderly operations in the natural spawning and nursery grounds, thinning-out overly abundant juvenile shellfish, conserving fish fingerlings and undersized shells, and by limiting the fishery in several ways.
The claims put forward by both sides were reasonable and based on sound evidence. In consideration of that the Fisheries Agency mediated the agreement made in 1952 whereby the exclusive fisheries rights territories of both prefectures were separated by a central tract that was henceforth to be controlled directly by the Ministry (the shaded area in Fig. 6.3). From that time, fisheries rights to that central area have been issued to fishing units from both prefectures by the Ministry, and had been renewed without incident a total of 6 times by late-1983.
(4) The Essa Strait Incident: A Problem of Technology
The history of trawling in Japanese coastal waters is one of recurrent and acrimonious disputes with other fisheries sectors. Typical of this is the Essa Strait Incident. Since the introduction of a trawl fishery, in 1919–21, severe conflicts have continued between trawlermen and traditional anglers and long liners in the Essa Strait, off Niigata, on Honshu Island. These conflicts, often violent, were exacerbated by the implementation of the 1949 Fisheries Law. The trawlermen claimed open access to areas closed to them, based on the democratic and rational management principles embodied in the Fisheries Law, whereas the traditional fishermen have continued to insist on the maintenance and protection of their traditional rights in coastal waters.
In an attempt to resolve the conflict, the Fisheries Agency of Niigata Prefecture coordinated the mediation efforts of both the Northern Regional Fisheries Mediation Committee, which represented the trawlermen and the Central Regional Fisheries Mediation Committee, representing the traditional fishermen. But mediation failed because of the diametrically opposed and tenaciously held views of their respective constituencies.
In March, 1950 Niigata Prefecture proposed a compromise whereby small trawlers would be permitted to work in the inshore waters only during the winter season, thereby partially opening the exclusive right fishing grounds. But the traditional fishermen rejected this plan. The prefectural fisheries office then turned over the problem to the national Fisheries Agency.
Attempting to force a solution, in November, 1950 twenty trawlers fished illegally in the areas closed to them. Anticipating major chaos and an escalation of the conflict, the Agency temporarily permitted trawling in the closed area during that winter. But since the traditional fishermen protested vigorously, the Fisheries Agency rescinded is trawling permit three days after it was issued. However, the trawlermen ignored the later order and continued to operate under the authority of the temporary permit.
In the meantime lobbyists representing both sides worked for a solution with the central government. The Minister of Agriculture, Forestry and Fisheries imposed an absolute ban on trawling in the Essa Strait until a mutually acceptable agreement could be concluded between the two sides. No such agreement has ever been reached.
The Formal Resolution of Inter-Sectoral Conflicts
Another major source of fisheries conflict in postwar Japan has been that between fisheries and other sectors of the national economy, most notably industry, transportation and public services. The traditional methods of mediation, conciliation and, to a lesser extent, arbitration, which have a long legacy in Japan, are also those preferred to settle this category of formal dispute. Further, the Dispute Law (1970) essentially represents a modernized version of these traditional methods (vide infra).
Inter-sectoral conflicts are in essence a symptom of a much larger rural-urban dichotomy in Japanese society, with the generally parochial worldview of the former conflicting with the relatively cosmopolitan and global perspective of the latter. Although traditional means of conflict management remain the favoured methods in rural and urban society alike, the former cleaves to them more closely. In a rapidly changing society like present day urban Japan many traditional values and behaviour patterns may be cast aside. Thus management of any conflict that arises between entities such as industry, that represent the urban (modern), and fisheries, that represent the rural (traditional) sector, becomes complex. Traditional processes are sometimes neglected, and atypical conditions become imposed on the process of finding a solution.
Thus in the late-1960s the traditional vehicles of conflict management were supplemented by resort to the judiciary, when, as a consequence of industry's neglect of basic traditional behavioural norms of the rural sector, some particularly intractable cases were brought before the courts for settlement. Although still not a widely accepted method of resolving conflicts, owing in large part to the legacy of intra-community strife that it uncommonly heralds, judicial solutions are occasionally sought to fishery problems. But such cases remain relatively rare, and most conflicts are managed at the local level, by traditional methods.
Nevertheless, the judiciary has, via some landmark cases, had an important role in defining certain classes of rights as they pertain to fisheries management. These must be viewed within the context of the citizens' anti-pollution campaigns, since certain rights of fishing communities were largely challenged and confirmed through inter-sectoral conflicts over the pollution of resources and the loss of resource space.
Inter-sectoral conflicts that involve coastal fisheries have arisen in Japan because of the intense post-war concentration of heavy industry, housing, agriculture and communications in constricted coastal plains and on land reclaimed from shallow inshore waters. Until the 1960s industrial growth and economic progress were virtually sacrosanct and negative impacts were regarded as their unavoidable concomitants. Thus many legitimate grievances were ignored, including those of fishing communities whose prime fishing grounds were being degraded by industrial and domestic effluents or lost to reclamation.
Those attitudes changed dramatically during the 1960s, largely as a consequence of the diasterous impact on human health of “Big Four” pollution incidents (minamata disease [mercury poisoning] itai-itai disease [cadmium poisoning] and various pulmonary disorders), together with the tactics of industry and government to avoid responsibility. By the 1970s the morality of industrial growth at the expense of citizen and community welfare and rights was being increasingly challenged.
As is well-known, by 1968 minamata disease was officially attributed to methylated mercury, which when continuously discharged into coastal waters accumulates in marine organisms and their consumers. Since fishermen and their families were the principal regular consumers of marine products around Minamata Bay this was the segment of the population most affected. Those who contracted the disease suffered disasterous physical and social consequences.
The attitudes of Japanese society were changed by this tragedy and especially by the stance of the polluter and the government, who failed to take the traditional approach of offering relief and solace to the victims. Particularly deplorable was the polluter's persistent denial of responsibility and use of legal tactics to prevent relief. Poor fishermen could hardly match the financial and intellectual resources of industry, and when they sought help from the local government they were rebuffed for years by an administration that sometimes sided with the polluter. But a wide range of citizens' groups gradually rallied to the victims' cause, from which the citizens' environmental protest movements emerged (McKean, 1981). Undoubtedly the most important among them in urging the victims to seek redress from the courts were the lawyers' groups, who apart from questions of conscience and social justice wanted to use the judiciary for their own ends to shape long-term national environmental policies.
Use of the Judiciary in Fisheries Conflict Resolution
Whereas the victims of minamata and other pollution-related diseases initially favoured the time-honoured method of mediation to resolve the conflict, because of the non-traditional behaviour of the polluters and the government they gradually came to distrust this traditional vehicle, and, instigated by their lawyers, in the late-1960s turned to the judiciary. The principal reason accounting for this radical shift from traditional processes was that the chemical company had so abused the process that mediation could no longer be trusted to render a just solution. A large and powerful company could easily gain control of the process and therefore could dictate the terms of the settlement. Further, whereas fishermen could do little to influence the selection of mediators a powerful company could do -- as had been demonstrated -- much to gain an advantage.
Also of major significance in the decision to forego the use of traditional mediation was the realization that the situation had become completely atypical and totally divorced from traditional precedent. The plaintiffs realized that they could only successfully take on the “modern” sector if they too discarded traditional techniques and adopted “modern” tactics. They gradually realized also that in this case traditional mediation weakened their cause, since it sought harmony and mutual concession, whereas the plaintiffs wanted a final showdown.
Another traditional objective of mediation was preservation of community integrity. But in the minamata case that had long since vanished. Further, since discords continued to fester indefinitely when blame is assigned totally to one side, traditional mediation procedures avoided adjudicating responsibility or cause of injury. But after suffering many years of indignities, together with the discarding of traditional procedures by the chemical company, the plaintiffs demanded clear-cut assignation of guilt. Since such a demand could not be satisfied by traditional mediation, there remained no choice but to use the judicial process. As is well-known, the plaintiffs of the “Big Four” pollution cases won court victories and then proceeded to negotiate acceptable monetary compensation with the polluting companies.
But the contribution of the judiciary in establishing alternative processes of dispute settlement goes way beyond those immediate decisions. Although traditional methods of conflict resolution remain those mainly employed by fishing communities to settle disputes, recourse to the courts is now no longer unheard of. Since the Minamata case, in particular, judicial proceedings to protect inshore fisheries rights have largely taken place within the broader context of environmental protection.
Verdicts in those four major cases broadened the concept of “citizens' rights” by showing that it is not the duty of a responsible citizen to suffer pollution silently for the national benefit, but rather that it is a transgression of justice. The rights violated in the “Big Four” pollution cases were those related to health and rights related to property. In terms of fisheries management the latter pertained to fishery rights in waters that had become polluted. These were amplified in the second and third generation of environmental court cases.
The second generation cases enhanced acceptance of an interlocking set of associated rights within the concept of “personal rights”, a term that does not appear in the Civil Code but which is gradually becoming accepted as a “protected interest” if not a full statutory right (Gresser et al., 1981). Closely related is the notion of livelihood rights. In 1971 the Oita District Court decision in favour of Usuki fishermen demonstrated that fishery rights have a value beyond economic worth, i.e., that more than just property rights they constituted rights to a livelihood (vide infra), as did the opinion of the court concerning the Date and Usu FCAs' complaint in their case against the Hokkaido Electric Power Company (Gresser et al., 1981).
Based on those formal legal precedents establishing the right to compensation for various categories of fisheries rights infringement, injunctive relief was then sought to halt unwanted local developments that could potentially infringe on those rights. In this way, the Ushibuka human waste treatment facility was prevented by the residents of three fishing villages in Amakusa, Kumamoto Prefecture, Kyushu.
The plaintiffs were 67 fishermen resident in Amakusa and the defendent was Ushibuka City, which had planned the waste treatment plant and which since 1971 had purchased land near the residences of the plaintiffs for its construction. The fishermen opposed construction since the city had admitted that the plant would not treat all the waste and three percent of the BOD would be released untreated into the sea. The plaintiffs contended that currents and tides would carry this untreated effluent along the coast, with potentially serious consequences for the health and livelihood of the residents. Since the potential injuries would, the plaintiffs argued, exceed the limits of their endurance and would violate their fishing rights, possessory rights, rights of ownership, rights of human dignity and environmental rights, they requested a court injunction to prevent the planned construction. The injunction was granted (Gresser et al., 1981).
Several precedents of the use of court injunctions to prevent undesirable infrastructural developments having thus been established, the third generation of environmental law cases moved to deal with the issues of prior notice, access to information and the right to hearings. Several court cases have established precedents for fishing communities on these issues too.
One was that established by the Matsuyama Airport case. In the late-1960s the governor of Ehime Prefecture, in Shikoku, granted a permit for the reclamation of inshore waters for runway construction. This was appealed to the Matsuyama District Court by 73 fishermen of the Okaga-Yoshidahama FCA, who possessed fishing rights to the reclaimed and other areas. They claimed that 20 of their members and their families based their fishery activities mainly in the reclaimed and associated areas. Thus the reclamation would irrevocably damage their livelihood and should be suspended. The court ordered that approval of runway construction be suspended since the governor had not given prior notice and a chance for a public hearing before granting approval for the reclamation, as required under article 35 of the Constitution. His action was therefore illegal.
In addition to being precedent-setting, the Matsuyama Airport case also prompted the government to amend, in 1973, the Public Surface Waters Reclamation Law to provide minimum procedural safeguards for fisheries rights, via the issuance of a public notice of applications for land reclamation permits, making public the relevant documents, and permiting time for written responses from interested parties. As progressive as these amendments may at first appear, they have been criticized as a mere gesture. Since decisions have usually been made in advance of public meetings, which few, if any, politicians bother to attend, such hearings are only a formality (Hase 1981).
The Modernization of Traditional Methods of Dispute Settlement
Although judicial procedures have provided a complementary alternative adapted to a changing social context in which traditional behavioural norms have broken down, as the earlier environmental pollution cases reviewed above have demonstrated, Japanese society traditionally favours the use of extra-judicial methods to settle disputes. Based on that rich historical experience, in 1970, the traditional methods of mediation and conciliation were adapted to the modern context and applied to the requirements of environmental regulation through the Law for the Resolution of Pollution Disputes (hereafter referred to as the “Dispute Law”). This measure has been used by some fishing communities as an extra-judicial method of settling disputes that arise from the pollution of fishing grounds.
Despite the varied motives of those in support, the need for legislation such as the Dispute Law became widely apparent in the late-1960s, following the “Big Four” pollution cases: A less socially disruptive and familiar alternative method for settling disputes was appreciated in official circles, and plaintiffs favoured an alternative that provided quicker relief than could the judiciary. Further, owing to the inherent complexities and difficulties of the issues involved, it was thought that a more appropriate institution than the judiciary ought to be established to resolve pollution disputes. This was widely believed since individual polluters were often difficult if not impossible to specify, and pollution, the causes and impact of which were often scientifically obscure anyway, commonly extended over a broad geographical area in which it involved a wide range of communities and their livelihood patterns in an equally varied range of injuries.
The Dispute Law established three independent levels for settling disputes: a Citizens' Complaint Referral Service and a Local Pollution Review Board, both at the local level, and a Central Dispute Coordination Committee, in Tokyo. The Complaint Referral Service, staffed by low-level officials in all prefectures and cities with a population of more than 100,000, is designed primarily to elicit citizens' grievances. The function of the Local Pollution Review Board is to settle minor disputes between private parties and between citizens and the government. Joint Prefectural Review Boards handle disputes that cross prefectural boundaries. The Central Dispute Coordination Committee deals with higher level issues involving major pollution cases, those between prefectures and those referred to it by the prefectures.
Three forms of extra-judicial dispute settlement are permitted under this law, mediation, conciliation and arbitration. The simplest and least formal procedure is mediation, which is usually conducted at the initiative of the parties to a dispute. In this procedure the main function of the mediator is as an intermediary, principally to expedite communication. The outcome is a binding document, a contract that precludes the parties' right to litigation regarding the dispute.
Conciliation is a more formal process that sometimes begins when mediation has failed, and in which a committee of conciliators participates more directly than do mediators in the mediation process. They often conduct on-site investigations and request documentary evidence. Conciliation committees are also empowered to draft a binding contract between the disputants, when they appear unable to reach an agreement among themselves. This contract is deemed as accepted by the parties unless they formally object within 30 days.
Although only infrequently used, the third authorized procedure is arbitration. This technique is more formal and relatively inflexible since the parties agreeing to arbitration are bound to accept the decision of the arbitrators.
One of the major hazards to Japanese coastal fisheries, particularly in the Inland Sea, has been the frequent occurrence of red tides, which have occasioned many fisheries disputes. Typical was the destruction of fisheries in Tokuyama Bay, Yamaguchi Prefecture, western Honshu, the location of a major petrochemical complex. This case will be used to demonstrate conflict resolution in inshore fisheries using the modernized conciliation process established by the Dispute Law.
In November, 1973 the fishermen of two FCAs in Tokuyama City, and who fished in Tokuyama Bay, requested the Central Pollution Investigation Committee to conciliate their dispute with 12 petro-chemical companies that operated near their fishing grounds. The fishermen alleged that these companies, through permitting sludgy effluents to accumulate in the bay, had caused the outbreak of red tides that had in turn damaged the fisheries.
Fundamental to the disposition of this case was a determination of the 12 companies' role in the pollution of the bay. Whereas the fishermen asserted that the specified companies were the culprits, the latter countered by claiming that there were many sources of the pollution of the bay waters in addition to their own discharge of effluents. These included runoff from agricultural lands as well as discharges from the city of Tokuyama itself. Thus the assignment of guilt to the 12 companies alone was untenable and therefore that the size of compensation payments demanded by the fishermen exceeded the companies' responsibility for pollution. An expert committee employed by the conciliators surveyed the site, with inconclusive results. As a consequence the committee was unable to explain either the cause of the red tides or the degree of responsibility of the 12 companies.
Although no exact, scientifically-based assignment of guilt could be established, there was an apparent link between the companies' polluting effluents and damage to the fishing grounds. To resolve the problem the conciliation committee, based on data it had assembled, calculated the monetary value of the fishermens' losses. Using that figure and the amount that the fishermen were already receiving in compensation from the companies, the committee established 200 million yen as fair compensation. The committee then persuaded both parties to accept this figure. The companies agreed to pay 75 percent of the total as compensation for damages to the fisheries and would contribute the balance to the establishment of a fisheries promotion fund, the use and administration of which would be controlled entirely by the complainants' FCAs.
Owing to the expense involved as well as to the need for prior governmental consideration, the committee deemed it impractical for the companies to remove the accumulated sludge from the fishing grounds. Further, the terms of the conciliation did not require the companies to cease operations. However, it did require them to pledge to abide by existing pollution standards as well as to clean up their operations.
As Gresser et al. (1981) point out, this conciliation agreement raises an interesting legal issue, since for the fishermen to have been legally entitled either to have the sludge removed or to have the factories closed down they would have had to prove an infringement of property or other rights. But there was no definite proof that these rights had been infringed.
In general, the Dispute Law seems to have worked well, and the system of grievance counselors has been particularly effective. The two main reasons for its success are, firstly, that local people, such as fishermen, are familiar with the system and its procedures are simple, and secondly, that the counselors are accessible to the people, they can marshal scientific expertise and launch a meaningful investigation, and, being government officials, they can exert pressure on polluters.
Of the three extra-judicial procedures recognized by the law, conciliation is that most preferred. Partly this is because mediation has had a checkered history in the earlier pollution cases, particularly when proposed by politically motivated persons, such as prefectural governors, and partly because arbitration by government-appointed arbitrators is viewed as being potentially biased as well as pre-empting litigation. But more importantly conciliation provides a nicely balanced mix of both formality and informality. It is more forceful than mediation yet less summary than arbitration. Further, conciliators identify various options towards a solution, analyze with the disputants the cost and benefits of each, and encourage them to identify mutually satisfying solutions. They also usually refrain from imposing pre-conceived solutions.
Further, the Dispute Law has also redressed fundamental inequities inherent in the judicial process. Hitherto, polluters largely had a monopoly of information and could use their relatively vast financial resources and political connections to secure all manner of advantages compared with fishermen or FCAs. Conciliation teams, on the other hand, make their own independent investigations and also wield the clout of being government officials. An extremely important practical consideration is that the costs of litigation are enormously greater than those involved in conciliation.
The Importance of Compensation
As has already been demonstrated, the payment of monetary compensation has been traditionally employed to recompense Japanese fishing communities or individual fishermen for a reduction in resources through competing fishing activities or for the loss of gear. This method has been continued in post-war times, when, in particular, it has been used to recompense for either a partial or total loss of rights, as well as injury, largely as the result of industrial or urban growth. Reinforcement of that traditional right to compensation may perhaps have been the single most important achievement of the post-war campaign against pollution.
In addition to its practical importance the social function of compensation payments must not be underestimated. Had traditional norms prevailed in the minamata case, and either industry or government adequately compensated the victims, the judiciary would have had no need to enter the affair.
The Inland Sea area of western Japan was selected to become one of the major post-war industrial bases of the nation. As a consequence conflict between competing resource users has been intense, and the total amount of money dispensed to FCAs in compensation for lost fisheries rights the highest in the nation. In the Shimotsui (Okayama Prefecture) area of the Inland Sea, studied by Befu in 1976 (Befu, 1980), reliance on compensation payments had become a way of life for local fishing communities, since they had been preoccupied with compensation negotiations for 25 years, and, given the character of environmental impacts within the region, were likely to be so well into the foreseeable future. During the period 1952–1976, Shimotsui fishermen had gone through 14 separate compensation settlements.
The first was in 1952, when for fear of over-fishing of sand eels, the Allied occupation authorities ordered the destruction of almost half the fishing boats registered to the Shimotsui FCA, along with their nets. That was the only case of compensation being paid to that community that did not result from destruction of fishing grounds owing to industrialization.
There followed a series of settlements associated with land reclamation projects for the Mizushima industrial complex. Six separate compensation agreements were negotiated between 1953 and 1976, as the complex was progressively expanded. Then in 1963 and 1970 fishermen were compensated for relinquishing fishing rights in areas where two deep water navigation channels were excavated. Three other settlements compensated them for rights lost owing to the development of a commercial anchorage in Mizushima Bay (1971), those owing to bridge construction (1976) and for damages suffered from an oil spill at the Mitsubishi Refinery in Mizushima (1975). The feverish industrial development activity that occurred around the Inland Sea during the 1950s and 1960s has now abated, but in such an intensively used industrial waterway the Shimotsui fishermen still anticipate compensation from continued water pollution as well as from accidental oil spills, ship collisions and the like.
As would be expected, compensation monies have augmented fishermens' incomes. But given the vast amounts of money paid by government and industry, surprisingly little has been received by individual families. In Shimotsui, for example, $ 2.4 million was paid in 1953 for the reclamation of “Zone A” of the Mizushima industrial complex and again in 1961 for that of “Zone D”. And in compensation for the Mitsubishi oil spill, an incredible $ 491 million was received in 1974. In terms of individual family income, however, the amounts received were only in the hundreds or few thousands of dollars, a mere fraction of a fishing family's average annual income.
In Shimotsui compensation has been a major factor in permitting investment in new boats and engines and modern gear, such expensive investments that would not have been possible from a fisherman's regular income, even with an FCA loan. In effect, then, industrialization has contributed to the decline of fisheries in the Inland Sea -- and also in similar water bodies -- in two ways: by the direct destruction of marine environments necessitated by land reclamation and other activities, and by pollution; and it has contributed indirectly through compensation that enabled fishermen to purchase modern equipment to fish more intensively in an environment already rendered fragile by degradation and habitat destruction.
Community Responses to the Disposition of Fishery Rights
Regardless of support from the general public, the defence of Japanese fishery rights and the coastal environment rests ultimately with the nation's fishing communities, since, if for no other reason, few other groups could claim the legal standing of fishermen, as required by Japanese court procedure. However, the response of fishing communities in this context has been far from uniform; some agreed unamimously to sell their entire rights, others have been divided in their opinion regarding partial or total sale, and in yet others the entire community has been steadfast in its refusal to sell.
Among the least desirable outcomes have been those where diametrically opposed views were held with equal tenacity by different factions within a single community. Inevitably, such an impasse has resulted in the fissioning of communities, sometimes permanently. It should be noted, however, that most fishing communities have found commercial development attractive, or at least not as unattractive as would have been a defence of their fishing grounds via judicial procedures. Since examples of the successful and unanimous defence of fishing rights have been given above, only examples of the first and last two types are provided here.
Not atypical of a small Japanese fishing community's response to industrial development is the Inland Sea village of Takashima, in Okayama Prefecture, first studied for 13 months in 1950– 51 by Norbeck (Norbeck, 1954) and restudied 23 years later (Norbeck, 1978). In the intervening two decades Takashima village had been absorbed by the neighbouring metropolitan area, the island on which it had stood had been linked to the mainland by reclaimed land on which an industrial estate had been built, and the waters to which fisheries rights were still held had become irredeemably polluted. Only 13 of the original fishermen still officially worked full-time at that occupation, and the men had each been awarded $ 47,000 in compensation for their lost fishery rights. Most former fishermen and many of their wives were now employees of a ship-building company and its local sub-contractors. In the intervening 23 years the original fishing community had become virtually urbanized.
Whereas anthropologist Norbeck was appalled on returning at what he considered to be a dismal panorama, the former fishermen and their families did not share his romantic notions:
Almost no one wanted to return to conditions of the past…. Who today would want to do such things as gather firewood in the forest, use kerosene lamps, cultivate by hand tools the steep and poor soil of the abandoned kitchen gardens, eat despised barley mixed with rice, draw water from wells, and suffer unnecessarily from illness for lack of money and facilities for medical treatment? Children and adolescents had no knowledge of these matters except dimly by hearsay and looked upon them as unimaginable circumstances of a remote and primitive past (Norbeck 1978: 270).
Families that had received $47,000 in compensation money were “incredulous at their good fortune,” since they could now afford such formerly out-of-reach luxuries as cars and household appliances. Further, one could now realistically contemplate a college education for one's children. Although some of the former villagers acknowledged the ugliness of their new urban environment, “… the ugliness and pain of past poverty could not be matched by any of the drawbacks of modern times” (Norbeck, 1978).
At the other extreme some fishing communities have withstood the financial inducements offered by industrial developers. One such community was Usuki, in Oita Prefecture, Kýushu. But in doing so it incurred severe social costs.
In 1969 the mayor of Usuki proposed that the city offer to the Osaka Cement Company a site for constructing a plant on land to be reclaimed near the fishing villages of Odomari and Kazanashi, which were incorporated into the city. The local FCA representing the villages agreed to sell the fishing rights to the site.
Odomari fishermen were relatively poor and not optimistic about their future in fishing since they took only low-value fish and worked on a share system as fishery employees. As such they were eager to sell their fishery rights for whatever compensation they could obtain, particularly since many anticipated finding jobs either in the cement plant or its nearby affiliated quarry. but in neighbouring Kazanashi most fishing households were resolutely against both the presence of the cement company and the decision of their FCA to sell their rights. The older fishermen among these resisters wished to preserve their fishing rights in the bay. But the younger men of Kazanashi had a far different reason. They were distant water harpoon fishermen who caught valuable fish, and so earned high incomes. They were therefore relatively rich and immune to financial incentives. Their resistance to the development was based principally on the need to preserve the clean air against dust pollution, since their harpooning skill was highly dependent on good eyesight.
As a consequence, the village of Kazanashi was deeply divided:
… of its 176 households, 33 were in favor of Osaka Cement (sansei), and 143 were strongly against it (hantai). Murahachibu -- traditional ostracism -- began to appear in February 1970. The hantai and sansei families became two separate hamlets, with separate arrangements for sanitation, garbage collection, public safety, and fire and police protection, and separate neighbourhood associations, PTA, and women's groups. There was absolutely no interpersonal communication between the two sides. (McKean, 1981: 85).
Disgruntled fishermen from Kazanashi finally filed suit in the Oita District Court, based on doubts about the validity of the FCA's decision to sell their rights and their belief that many who had agreed to sell their rights had been bribed. Further, their lawyers thought firstly that the law could be interpreted to require a unanimous decision to sell the fishing rights of any individual members, and secondly -- and most important, as it turned out -- that any decision by the FCA which deprived some members of their livelihood rights was unconstitutional. The court's verdict supported the plaintiff's arguments entirely. Fishing rights were declared to be a property protected by article 29 of the Constitution, which nobody could “buy” without the owner's consent. This therefore meant that a unanimous agreement to sell fishing rights to a private company would be required, and thus the two-thirds consent rule of the FCAs was held to be unconstitutional (McKean, 1981).
To a large degree, as demonstrated by Befu (1980), many socially negative attributes of financial compensation derive essentially from the negotiation process between the fishermens' representatives and the government, as well as from the basis on which the amount of compensation is calculated. No objective measure is used to calculate the income that would be lost owing to a particular development, although such a figure is fundamental to calculating the amount of compensation to be paid. Instead, compensation rates are based on a formula that includes average annual fish landings of the unit to be compensated, fish prices, net profit, estimated percentage of total income that would be lost owing to the development, and the number of years to be compensated.
That lack of a precise figure for compensation provides scope to manoeuvre during the course of negotiation. This fuzziness is exacerbated since only the representatives of either the government or industry know the budget allocated for compensation in a particular case, and this information is withheld from the fishermens' side. This situation tends to sour the atmosphere in a fishing community since both the fishermens' representatives and those of the government and industry are alleged to use slush funds to induce the acceptance of otherwise unacceptable figures (Befu, 1980).
Not uncommonly land reclamation projects and the like extend beyond the sea rights boundaries of a single FCA. Under those circumstances it is not unusual for the government or industry side to negotiate with each FCA separately. As a consequence, the amount of compensation, for precisely the same losses, is likely to vary considerably among the FCAs, depending on the acumen of and the tactics employed by their representatives. To preclude a united front among a group of FCAs the representatives of any one Association are forbidden to reveal to the others the amount of compensation awarded until negotiations have been concluded with all FCAs. Thus in the area studied by Befu, “a consequence of separate negotiation has been to increase suspicion, schism, and hostility among cooperatives and among fishermen of different cooperatives.”
Befu also reports that some cooperatives are alleged to inflate their membership lists to include unqualified members, and thereby to obtain a higher level of compensation. After negotiations have been completed much of that money “… is said to be pocketed by the cooperatives' leaders, sometimes justified as reimbursement for personal expenditures for negotiation … the remainder then is distributed to the members, thus making them a party to the crime and mollifying their discontent.”
Whether some leaders of fisheries cooperatives do benefit financially in such illegal ways, or whether it is just jealous and malicious gossip is immaterial, since invariably under such circumstances the atmosphere in the community is poisoned by the entire process. What is more apparant, however, is that the better community leaders and negotiators profit politically from their activities. Commonly, the leaders of a fishing community are competing for local political power and they use the presidency of the local FCA as a stepping stone to larger political office. One way to secure election to the presidency of an FCA is to reveal the potential or to actually demonstrate skill as a negotiator. Successfully negotiated compensation settlements demonstrate a man's capabilities to protect local interests, as well as his power and influence.
In modern Japanese coastal fisheries traditional perceptions of justice and processes of resolution continue to play a dominant role in the formal management of conflict, just as they do in its informal management. As has been demonstrated in this chapter, failure to properly consider these traditions has been either a major cause of considerable problems or of the inability to resolve festering conflicts. To a large degree traditional informal and formal methods of conflict management utilize the same methods: mediation, conciliation, arbitration, the use of go-betweens, protracted face-to-face contact and the payment of compensation, that result in concession, counter-concession and compromise to reach a mutually acceptable solution. Although in these last 20 years the judiciary has entered the process in a relatively minor yet important way, it is noteworthy that these traditional methods of dispute management have been modernized via the Dispute Law.
Paradoxically, one of the major causes of fisheries incidents has been institutional reform. In effect this was the underlying cause of the Kyuroku-to, Ariake Sea and Essa Strait incidents.
The unilateral declaration of ownership to hitherto unregistered reefs and islets has often caused major incidents by changing and obscuring traditional patterns in the jurisdictions of surrounding waters, thereby leading to strong objections from other traditionally common users. This problem is typified by the Kyuroku-to incident, where resources-rich waters were unilaterally grabbed by one prefecture, taking advantage of an opportunity provided by nationwide fisheries administrative reform, and totally ignoring customary usage. Neglecting to accommodate the strong precedents established by a long history of customary usage has been one of the major problems resulting from reform decisions made under both Japanese fisheries laws. Under the Japanese system of administration, when local governments and Joint Mediation Commissions cannot solve their problems, the Ministry steps in to mediate. But the Ministry is not always successful either, in which case the national cabinet intervenes and imposes a solution, usually either via the passage of new legislation or via revisions or amendments to existing laws.
Although clarification of the jurisdiction over coastal fishing grounds may be important in developing a fisheries management plan, it is often followed by the establishment of new boundaries and limited entry restrictions that demand the payment of entry fees for fishing and place limitations on the conditions of the fishery. In this process it is evident that historical precedents must weigh heavily and that any decisions must be both a compromise and flexible.
In addition, reform itself is a cause of conflict since it changes traditional patterns to forms that are administratively more efficient, and, in the case of the Fisheries Law of 1949, more equitable. In the Ariake Sea incident between Saga and Fukuoka prefectures, for example, the fishermen of Saga Prefecture believed that after the resolution in 1908 of the conflicts that followed the reforms of the 1901 Fisheries Law, order had been maintained for four decades. They saw no need to alter that conflict-free relationship. But, on the other hand, those of Fukuoka Prefecture considered themselves to have been exploited during those forty years, and, based on the equitability clauses in the new 1949 Fisheries Law, sought to redress the situation. The Essa Strait case provides another example of the same problem, since according to the 1949 Fisheries Law, coastal fisheries were to be developed rationally. The modernized trawlermen of Niigata Prefecture perceived this as giving them a mandate to operate within the formerly closed inshore fisheries rights area, whereas the traditional fishermen, who wished to preserve their exclusive rights, vigorously rejected their claim.
Those incidents highlight a fundamental principle in Japanese behaviour, viz. general principles such as are codified into law must be applied flexibly and according to local conditions. Further, in all such instances, protracted and open discussion to achieve a mutually acceptable concensus, which invariably involves compromise by both parties is essential. When this basic process is ignored conflicts invariably become entrenched and solution is impossible.
Similarly the use of compensation payments for loss of rights is deeply embedded in Japanese coastal fisheries tradition. With the modernization of the nation this tradition has been extended to inter-sectoral conflicts involving fisheries. In the complex, multiple use environments such as those in which a great many Japanese coastal fisheries now operate, compensation inevitably represents the only realistic way in which damage to or loss of fishing rights can be recompensed. Short of completely banning all damage to and infringement on fishing rights by other potential users of resources and space in the coastal zone -- which is obviously not a realistic option -- there is no way to avoid a degree of environmental disruption that has impact on coastal fisheries. Equally clear, however, is that some sources of environmental perturbation that are detrimental to fisheries and ultimately to human consumers, such as toxic chemical effluents, must be prevented from entering coastal waters. These must be distinguished from others, such as land reclamation, that can be permitted if those who are thereby deprived of resource use rights are paid for their loss.
Even if a nationwide plan for the coastal zone were adopted to replace the present ad hoc approach, and blended with the concept of the local control of local marine resources, fishing rights in some locations would inevitably still be compromised. Under these circumstances compensation payments would remain the only feasible means of managing conflicts among incompatible coastal resource uses. It is thus important to understand how compensation has been used in contemporary Japan to manage local fishery resources, as well as the responses of communities to such payments, particularly in terms of their ability to effectively manage their fisheries rights in the face of the internal and external pressures induced.
In examining a variety of communities' decisions on the disposal of their fishing rights a number of common factors emerge that might permit prediction of likely decisions in the Japanese case. Foremost among these is a fishing community's sense of purpose. Where an entire community has retained a strong identity, sense of purpose and pride in fishing, and where that pursuit continues to yield an economic rate of return that is locally perceived of as good, or at least acceptable, compared with alternative means of making a living, it is probable that fishing rights would be strenuously defended against private developers. On the other hand in fishing communities characterized by sharp economic stratification, and therefore by a relatively poorer and less economically satisfied group, or where economic rates of return have been severely curtailed by the environmental impact of nearby land or resource uses, fishing rights might not be so strenuously defended by the majority. In the more extreme cases, as at Takashima, in the Inland Sea, there might be precious little left to defend anyway, and economic alternatives might prove a further disincentive. There are also other, more obvious factors involved. In particular these are a community's financial ability to launch and sustain a defence of its rights, the educational level of its members, the quality of community leadership, and levels of contact with outsiders who could lend strength and resources to the defence.
Fisheries Incideut
a:Direct westward extension of the boundary between Aomori and Akita
referectures; b: Outer limit of Akta mackerel fishing by Akita fishermen
(agreement reached on April 22, 1953)