Fisheries Committee on Feb. 1st, 2024

[The Chair, Liberal, Ken McDonald]

I call this meeting to order.

Welcome to meeting number 95 of the House of Commons Standing Committee on Fisheries and Oceans.

This meeting is taking place in a hybrid format, pursuant to the Standing Orders. Before we proceed, I would like to make a few comments for the benefit of witnesses and members.

Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mic and please mute yourself when you're not speaking. For interpretation for those on Zoom, you have the choice at the bottom of your screen of floor, English or French. For those in the room, you can use the earpiece and select the desired channel. Please address all comments through the chair.

Before we proceed, I simply want to remind members to be very careful when handling the earpieces, especially when your microphone or your neighbour's microphone is turned on. Earpieces placed too close to a microphone are one of the most common causes of sound feedback, which is extremely harmful to the interpreters and causes serious injuries.

Pursuant to Standing Order 108(2) and the motion adopted on January 18, 2022, the committee is resuming its study of illegal, unreported and unregulated fishing.

I would like to welcome our witnesses. On Zoom, we have Mark Young, executive director, International Monitoring, Control and Surveillance Network, as well as Naiomi Metallic, associate professor and chancellor's chair in aboriginal law and policy. In person, we have Andrew Roman, retired lawyer, and Julian Hawkins, chief executive officer, Vericatch.

Thank you all for taking the time to appear today. You will each have up to five minutes or less for an opening statement.

I invite Mark Young to begin, please.

[Mark Young, Executive Director, International Monitoring, Control and Surveillance (IMCS) Network]

Thank you, Chair, for the opportunity to speak with you today.

My name is Mark Young, executive director of the IMCS Network. I've spent my entire career working in fisheries compliance and enforcement, including more than 20 years in the U.S. Coast Guard and more recently supporting the IMCS Network, of which Canada is a founding member.

I understand that you have heard previously from a wide range of experts on this topic already, especially on the impact of IUU fishing associated with your domestic fisheries. I recognize the expertise of your Canadian fisheries officers in responding to your domestic fisheries compliance challenges, so I will intentionally focus my remarks on the broader regional and international considerations of IUU fishing as fish and fishers move between different jurisdictional areas.

Worldwide, IUU fishing accounts for around 20% of global catch, and in certain countries it's even closer to 50%. This affects Canada as well. A recent study found that over 20% of seafood imported into Canada is at risk of being sourced by IUU fishing. Some studies even indicate that IUU fishing worldwide accounts for up to $23.5 billion U.S. every year.

Because more than three billion people around the world depend upon fish for food and nutrition, IUU fishing practices threaten food security and sustainability and undermine efforts to reduce global hunger and malnutrition, especially in developing countries. In addition, as the modern fishery sector becomes more globalized, industrialized and integrated into the worldwide financial market, it is also becoming more exposed to organized crime, where there is a growing convergence between IUU fishing with other serious crimes like forced labour and arms and drugs trafficking.

Canadians are also directly affected. One way to think about this is in terms of fish species important to Canada, such as salmon or tuna, found along both your Pacific and Atlantic coasts. These fisheries have very strong economic, social and cultural significance to Canadians. However, these valuable fish stocks also share ecosystems or migrate into areas beyond Canada's own domestic waters, where increased threats of IUU fishing exist.

As a global problem, global solutions to IUU fishing are needed and must be supported through a combination of national, regional and international actions. We find that the activities and types of non-compliance that constitute IUU fishing are continually evolving. The global community must constantly strive to meet this challenge by being innovative, adaptable and, most importantly, working collaboratively together with one another.

Unfortunately, there is no single solution to the problem. It is a complex and evolving issue that requires comprehensive and adaptable responses. Strong policies and legislation are not the only things needed. It is critical to also have access to data, information and technology to allow fisheries officers to identify and respond to IUU fishing supported by these robust legal frameworks. Technology can help shed light on vessel activities and make vessel tracking more effective. However, without the ability to integrate these technologies with other fisheries information and to have outputs effectively analyzed by capably trained and knowledgeable fisheries officers, you will find that technology alone is little more than a passive tool.

Importantly, Canada has demonstrated that the use of technology is a priority in your own efforts to address IUU fishing in terms of both its availability and use. A great example of this is Canada's dark vessel detection program, which makes satellite remote-sensing data available to support a growing number of developing countries with their own efforts to address IUU fishing.

What else can Canada do? As a global leader in the fight against IUU fishing, you are uniquely positioned to continue this leadership. While you have a rightful priority to continue to focus your efforts on your own domestic fisheries, it is important to remember that these resources are also impacted by fishing activities that occur outside of these waters. It takes significant regional and international action to identify, examine and respond to these broader IUU risks. Effective participation, co-operation and collaboration in regional and international fisheries frameworks are key.

This is seen through your management and enforcement efforts of shared fisheries resources in the Gulf of Maine, the support of Operation North Pacific Guard, and Canada's first-ever fisheries patrol and high seas boardings and inspections conducted under the framework of the Western and Central Pacific Fisheries Commission. Notably, you have also been proactive in recognizing the importance of establishing public-private relationships to fight IUU fishing. One recent example is your support and engagement with the joint analytical cell to help achieve goals outlined in your Indo-Pacific strategy.

We should never forget that our MCS officers represent our most important resource. Those who work at the forefront of the IUU battle must be fully supported, empowered, informed, effectively trained and adequately resourced by our national and regional leaders.

In closing, no country is immune to IUU fishing and no country should operate in this complicated environment in isolation. Canada should continue to demonstrate leadership in the fight against IUU fishing by working collaboratively with a full range of like-minded and trusted partners to strengthen global fisheries compliance and enforcement efforts.

Thank you. I am happy to answer any questions.

[The Chair, Liberal, Ken McDonald]

We'll move on now to Naiomi Metallic for five minutes or less, please.

[Professor Naiomi Metallic, Associate Professor and Chancellor's Chair of Aboriginal Law and Policy, As an Individual]

I am from the Listuguj Mi’gmaq first nation. I am a lawyer and law professor, and I thank you for the invitation.

In reviewing the testimony before the committee, I am concerned that some of the discussion has been one-sided, and often equates indigenous fishing with illegal, unreported and unregulated fishing. This entirely overlooks that we are talking about constitutionally protected rights that require respect and implementation by governments, especially so given Canada's passing of the act on the UN Declaration on the Rights of Indigenous Peoples.

I also wonder how this committee's work squares with other studies of Parliament, most notably the Senate report from 2022 on advancing the full implementation of Mi'kmaq, Wolastoqiyik and Peskotomuhkati rights-based fisheries, entitled “Peace on the Water”.

My submissions are intended to clarify the law regarding Canada's obligation regarding aboriginal and treaty fishing rights.

The term “regulate” gets used a lot and, yes, the Supreme Court of Canada, in both Marshall I and II, stated that Canada has the right to regulate treaty rights. However, “regulate” does not mean Canada may legislate and limit the rights in whatever way it sees fit—far from it. Canada has a duty to accommodate aboriginal and treaty rights to fish, give priority to these rights, respect communities' roles in the management of their fisheries, consult on impacts to these rights and, finally, address barriers to the exercise of those rights. Catch limits, seasons and gear restrictions can all potentially unreasonably limit these constitutionally protected rights.

Here are some broad brush strokes on this.

Section 35 of the Constitution Act, 1982, changed the rules of the game. In R v. Sparrow, the Supreme Court found a right to fish for food, social and ceremonial purposes. There are local decisions upholding this for nations in the region. Marshall found a treaty right for Mi'kmaq and Wolastoqiyik to fish for a moderate livelihood based on the 1760 and 1761 treaties.

Any infringement of aboriginal or treaty rights has to meet a two-step justification test—in other words, a test for what constitutes a reasonable regulation of the rights. Step one requires showing a valid objective, including conservation and management of natural resources, but the government can't just assert this. It must lead actual evidence to support reliance on the objective. In the commercial context, objectives can also include addressing economic and regional fairness within an industry, as well as a historical reliance and participation of non-indigenous groups in an industry. Even if you meet this, there is a step two.

This requires governments to follow a process that ensures its treatment of aboriginal rights is in line with the honour of the Crown and the government's fiduciary relationship with indigenous peoples. With food, social and ceremonial rights, this means governments must give rights priority after any conservation concerns are addressed.

In the commercial context, the court said that priority doesn't have to be exclusive, but it's still meaningful. The court suggested this priority could be shown by according the indigenous group a share in the industry that is reflective of both the group's proportional representation and the significance of the resource to the group. Consultation over all of this is always a requirement.

Marshall I also said that, if the treaty right is impacted by a statutory licensing regime, that regime should be amended to recognize and accommodate indigenous rights. The court has further said that a special program or law accommodating indigenous fishing rights is consistent with the charter and does not amount to reverse discrimination. Finally, the court has recognized that aboriginal and treaty rights belong to the community, so their exercise is to be governed by the community.

Canada has not lived up to these obligations. What came after Marshall was only access to the commercial fishery. First nations were told that this was not an implementation of their rights and that treaty implementation would occur at negotiation tables, but negotiations dragged on and on, often with federal negotiators saying they didn't have a mandate to talk about the issue.

There hasn't been any amendment to the Fisheries Act or regulations to accommodate the moderate livelihood rights, and current access to the commercial fishery isn't sufficient and doesn't live up to the constitutional obligation to respect treaty rights. There are also challenges with the food, social and ceremonial licensing system under the aboriginal communal licensing regulations.

Understandably frustrated in recent years, some Mi'kmaq and Wolastoqiyik have resolved to go out and exercise their rights on the water. Many have been charged. In Nova Scotia, there are about 55 ongoing prosecutions under the Fisheries Act. Perhaps not all asserted exercises are constitutionally protected, but many would be.

My point is that this is less of an enforcement or illegal fisheries problem than the failure of Canada to respect and accommodate aboriginal and treaty rights. Resolution requires meaningful consultation with indigenous groups, negotiations, taking the indigenous role in management of their fisheries seriously and the legislative accommodation of these rights.

I'll end by pointing out that indigenous peoples' own laws provide for limits on the exercise of harvesting rights, and first nation communities and leadership could be playing an important role in management and enforcement along the lines of the kind of collaboration that Mr. Young was speaking about. Unfortunately, they're being left out of this.

Thank you.

[The Chair, Liberal, Ken McDonald]

Thank you.

We'll move on now to Mr. Roman for five minutes or less, please.

[Andrew Roman, Retired Lawyer, As an Individual]

Thank you for inviting me.

I'm going to explain the problems with implementing the two Marshall decisions as I see them. Before I do that, I want to compliment DFO and the minister for carrying out the recommendation of the Supreme Court of Canada to use negotiation rather than litigation to resolve issues with first nations. These negotiations will succeed, provided that the major stakeholders accept the outcome.

I want to talk a little bit about what the Marshall cases decided because, as I have said in the past, they've often been misunderstood. Most of that is in my written text.

I think that your committee has got it wrong, and I refer to your report number four. I can discuss that later, if there's time, but I think that these two Marshall decisions are better forgotten, because I think that they do more harm to first nations than they help.

Here is why I think you should not try to implement the Marshall decisions. It is the serious discrimination limit that they put on there, the discriminatory limit to a “moderate livelihood” for indigenous fishers. That treats indigenous fishers as second class. No one else is constitutionally limited to a moderate livelihood. Why should we be implementing treaty rights that treat first nations unfairly?

If I were a member of the Mi’kmaq first nation, I would be quite upset that the government is trying to implement that and to call it reconciliation. Parliament doesn't need to implement any treaty so as to do better for first nations than the British did in 1760. Just amend the currently applicable laws as necessary and forget about the Marshall cases. You can do a lot better without them.

Here is my recommendation for the regulation of illegal fishing. DFO has already started doing the necessary thing, which is to negotiate and, ideally, to sign an agreement or to amend applicable laws or both, but let's not pretend that this is just implementing an archaic treaty right that is discriminatory or that it is just pursuing reconciliation. I would say just regulate the catch, permit it to anyone or everyone consistent with fair opportunities for all and species conservation. Then you can focus on, as one of the previous speakers said, enforcement, about which this committee has already heard much criticism. There's no benefit in offering to implement treaty rights without adequate policing of illegal fishing.

In conclusion, the pre- and the post-Marshall disputes have been going on for years now with tensions simmering between fishers of different groups, but it should all become needless tension. Everyone needs a clear understanding of what the rules are today, but that's not the job of the Supreme Court of Canada or of a 246-year-old treaty with Britain. The government has to decide what it considers to be fair for everyone and to have Parliament enact a comprehensive new law that amends the current legislation to deliver that.

I'm hoping that all of the MPs on your committee will be able to put aside partisan differences and work to the benefit of everyone in the fishing industry. Failing that, you will be creating and prolonging more tension and more harm than you will be resolving. That isn't fair to either the first nations you're supposed to be reconciling with or to the non-first nations fishers who complain of being left out of the current negotiations around reconciliation. In conclusion, then, the two Marshall cases are really a barrier to progress, and it's time to get past them.

Thank you. I await your questions.

[The Chair, Liberal, Ken McDonald]

Thank you for that.

We will now go to Mr. Hawkins for five minutes or less.

[Julian Hawkins, Chief Executive Officer, Vericatch]

Thank you very much. I appreciate the opportunity to speak.

Let me, first of all, start off by saying that Vericatch, which is the company I represent, is involved in fishing data. I can't think of a better way of helping tackle IUU than getting actual data as to what's going on. That has to be the core of everything.

Vericatch is a Canadian fishing technology company based in Vancouver, Halifax and St. John's. The company was founded in 2005 by technologists and fishermen. We have a team of in-house developers who develop our products. We have been supporting Canadian harvesters, as well as the DFO, with digital catch-reporting products for more than a decade, and we understand the responsibilities incumbent in that.

Digital catch reporting through electronic logbooks helps fisheries in quite a few different ways. Obviously, it can reduce the time, the cost and the effort of reliably gathering information as to what is going on. It can empower harvesters and the DFO with real-time information so that they can make good and timely decisions based on actual data. It can help reduce negative impacts—in the fishing business, there can be many—and it can offer proof of origin with regard to the supply chain, which, again, helps tackle IUU.

Vericatch is the leading provider of products that meet the Canadian national e-log standard. Our products have been approved by the DFO for the majority of fisheries here in Canada, and we are adding fisheries with every release of the product. These products are based on a voluntary basis at the moment, and they have been used to submit data to the DFO.

Our e-log products are based on a tried-and-tested platform designed and developed here in Canada. They're multilanguage and are designed to work online and off-line from a smart phone, tablet or computer.

As was previously raised at meeting 93, there were some questions relating to the security of fishing data, and I want to briefly speak to them.

To be clear, data from Canadian customers is securely stored here on servers in Canada. We are a technology company. That's what we do, and that's what we know. We follow strong security protocols and approaches to protect our systems and the user data. Our privacy policy is compliant with Canadian federal and provincial laws, and additionally with standards such as the GDPR in Europe.

To get a little bit more specific, there are just two cases where we would disclose user information. One is if we have to disclose it as part of providing our product and services to the user. For example, if somebody is submitting data into our platform that needs to be submitted on their behalf to DFO, then we will disclose that information to DFO. That's part of offering the product. The only other case is if we're legally required to do so by a court. That's it.

We are looking forward to helping modernize the Canadian fishing industry and also to helping harvesters and DFO get the benefits in performance and reliability into Canadian fisheries. As many other industries have seen, there are huge benefits if timely and accurate data are available, and we strongly believe that the e-logs introduction in Canada will help the Canadian fishing industry.

Again, coming back to IUU, I will say that good data is everything. If you don't have good data, you're shooting from the hip, and you're never going to really get there. Getting the good data in from the fisherman actually doing the work is the best way to tackle IUU.

Thank you again for the chance to speak.

[The Chair, Liberal, Ken McDonald]

Thank you for that.

We'll get in now, very quickly, to our rounds of questioning.

We'll go to Mr. Perkins first for six minutes or less, please.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Thank you, Mr. Chair. It's been a while since I've gone first in committee, so it's quite a privilege.

Thank you, witnesses.

I understand some of the issues and comments made by some of the witnesses today. Obviously, we don't control what the witnesses say in this study on IUU, and people have taken focuses in various directions.

I know, Mr. Roman, you've appeared before the committee before, back in I think the 2020 lobster dispute. I think you said something then about some of the challenges in the way governments of all sorts have managed the fishery and the moderate livelihood issue, which, if I heard correctly, Professor Metallic.... They are similar in that what we have are a series of Supreme Court decisions and a series of policy decisions over 20-plus years from governments, but a lot of those policy decisions aren't based on law in the sense that, as Professor Metallic said, they're not reflected in any of the actual changes to the statute or the regulations.

I wonder, Mr. Roman and Professor Metallic—perhaps Mr. Roman first—if you could comment on that issue and why that's such a gap and a problem.

Professor Metallic, have there ever been any discussions about actually finding a way to put that into your legislation in all of the work you've done with DFO?

Mr. Roman, go ahead first.

[Andrew Roman]

Your report four said that it's “beyond the scope of the Committee to define what would constitute a moderate livelihood.” My comment to that would be that no one can do that and you shouldn't even try. It's a bad idea. Let it go. There's a lot of that sort of thing, where you're inviting or asking the Government of Canada in your report number four to work out what that is, to help define it and so on, but it's a discriminatory requirement and it shouldn't be there.

The reason the Supreme Court of Canada put that in was because of a very particular issue arising from the way Mr. Marshall was prosecuted. It's more detail than I can go into now—I can write to you about it later—but I think the point is that the two Marshall cases were peculiar because the Crown was beating up on Mr. Marshall for a very tiny amount of fish and the court wanted to see him acquitted—

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

I don't need a recitation of the case because we have very limited time. I only have six minutes, and we're halfway through.

Professor Metallic, I wonder if you have a few comments.

[Prof. Naiomi Metallic]

To my knowledge, there's been very little effort—if it's ever been contemplated—to make changes to the Fisheries Act or the regulations in order to accommodate the treaty right, although that was specifically mentioned by Justice Binnie in Marshall I. Most of the conversation has been at negotiation tables and, as I say, there have been delays and they haven't amounted to very much.

I've written an article about legislative reconciliation and how I think it's actually important for governments to embrace their role through looking at legislative tools.

I'll leave it there.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Thank you very much.

Mr. Hawkins, I want to understand a little more about Vericatch. Is Vericatch on a contract with DFO, and does it receive money from the government to provide these services to a fishery? How does it work?

[Julian Hawkins]

No, it varies a little bit by fishery, but if I speak about the national e-log standard, for example, that is a standard that has been published by DFO, so companies can choose to provide a product that meets that standard. The people who pay for it, which is typical in fisheries, are the fishermen. They're the people who have to pay for it, so that's the way it's arranged.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Okay. Do you report all that electronic catch data back, or do the fishermen report directly to DFO?

[Julian Hawkins]

In our product, the fishermen log it in our product on a smart phone or something. Then when the fishermen hit submit, it is then submitted to DFO.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Have you found adaptation problems? I ask because a lot of the fishermen I know in my part of the world of South Shore, Nova Scotia, don't even know how to use a computer at all.

[Julian Hawkins]

Yes, we have to be practical.

We've been working with harvesters, like I said, for more than 10 years on this. A lot of training goes on. We try to make it as straightforward and as clear as possible, but it can be done. People get used to it.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Thank you.

Mr. Young, IUU fishing worldwide is obviously a huge issue, but even within our waters, we seem to have challenges. My understanding, from some information we've gathered, is that DFO alone saw its patrols decline in the last year in our waters on the east coast by 30%.

What happens when those who choose to do IUU fishing, particularly in the offshore as opposed to the inshore—and they are offshore, 80 miles out—know we're not patrolling like we used to?

[Mark Young]

Thank you for the question.

Certainly, the opportunity is there to operate in a more non-compliant manner, but I think the way to address non-compliance is not strictly just with at-sea patrols and trying to ensure adequate levels or optimal levels of compliance with at-sea patrols and boardings and inspections only. It's about dockside inspections—port inspections—like the electronic reporting. The ability for the reporting to be provided electronically without the ability for data manipulation reduces opportunities for non-compliance.

Taking advantage of greater opportunities, such as those provided when you look at the port state measures agreement, or PSMA, and looking at efforts to address inspections portside—because all fishing vessels have to come to port at one time or another—provide for effective means to be able to ensure compliance of fishers at sea. Coupled with such mechanisms as the use of technologies such as electronic reporting or electronic monitoring, that provides more near real-time data.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Young.

Thank you, Mr. Perkins.

We'll now go to Mr. Cormier for six minutes or less.

[Serge Cormier, Liberal, Acadie—Bathurst, NB]

Thank you, Mr. Chair.

Thanks to all of the witnesses for being with us this afternoon.

I'll start with Mr. Young. I looked at the document you provided us. I saw that you invited a Mr. Mike Kelloway to speak to your group. If you want to have better people talking next time, we can certainly help you on that front.

Kidding aside, you said 20% of seafood imported to Canada was fished in Canada. Is that right?

[Mark Young]

The study indicated that about 20% of the imports were at risk of being taken via IUU fishing.

[Serge Cormier, Liberal, Acadie—Bathurst, NB]

Perfect.

Just to make sure, your organization uses technology to monitor those boats. Is that what I read in the document?