Bill S-203 (Historical)

Ending the Captivity of Whales and Dolphins Act

An Act to amend the Criminal Code and other Acts (ending the captivity of whales and dolphins)

This enactment amends the Criminal Code to create offences respecting cetaceans in captivity. It also amends the Fisheries Act to prohibit the taking of a cetacean into captivity and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act to require a permit for the import of a cetacean into Canada and the export of a cetacean from Canada.

[Joanne Klineberg]

From what I understand, Marineland is the one facility where breeding takes place. In Ontario, in 2015, the legislature made amendments to their animal welfare legislation that specifically prohibited the breeding of orcas, which is one type of whale. They put in place a number of other regulations setting out standards of care for other marine mammals, including cetaceans.

So, yes, if Bill S-203 does not pass, there will be a ban. There is a ban already in Ontario with respect to the breeding of orcas but not other whales.

[Gord Johns, NDP, Courtenay—Alberni, BC]

Okay.

Can you confirm that if Bill S-203 doesn't pass that the breeding and trading of live cetaceans will continue to be lawful in Canada?

[Adam Burns]

The provisions in Bill C-68 that sort of parallel the objectives of Bill S-203 are entirely within the scope of the Fisheries Act. As I mentioned earlier, it would basically prevent the minister from authorizing, essentially, the capture of a cetacean from Canadian fisheries waters for public display purposes—which we haven't done since the 1990s—as well as provide the government with a regulation-making authority that could then be used to close the door on the import of any new animals brought in for those purposes as well.

I think your question, then, relates to provisions within Bill S-203 that are outside the scope of the Fisheries Act. Really, the one point would be about the captive breeding, which the Province of Ontario has exercised jurisdiction on with regard to orcas and the captive breeding of orcas.

In terms of the import restrictions of WAPPRIITA, one could view the regulation-making authority proposed in Bill C-68 as being similar to that, assuming that the appropriate regulations were made.

[Gord Johns, NDP, Courtenay—Alberni, BC]

Thank you, Mr. Chair.

Thank you, all, for your testimony. Maybe I'll start with Fisheries and Oceans.

Can you tell us the difference between Bill S-203 and Bill C-68? What would Bill S-203 prohibit that Bill C-68 would allow?

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Right, but the purpose of Bill S-203 is to say that those types of performances.... We as a nation are saying that we're passing this legislation because that type of performance is not in the best interests of the cetacean. Is that correct?

[Carolina Caceres]

I'm not a lawyer, but if I understand Bill S-203 correctly, it would be up to the minister to determine whether that transfer is in the best interests of the cetacean's welfare.

[Carolina Caceres, Manager, International Biodiversity, Canadian Wildlife Service, Department of the Environment]

What I could speak to is WAPPRIITA. You're talking about the export and then the conditions around export as potentially....

My role in Environment and Climate Change Canada is in relation to WAPPRIITA. When I look at Bill S-203—and if I understand your question correctly—it says that there shall be no authorization of exports of a living cetacean, and the exceptions proposed are for “conducting scientific research” or “keeping the cetacean in captivity if it is in the best interests of the cetacean's welfare”.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

However, it is saying that it prohibits the import and export unless it is authorized by the Minister of Environment and Climate Change for scientific purposes and if it's in the cetacean's best interests. Isn't it the whole purpose of Bill S-203 to say that these types of performances are not in the best interests of the cetaceans? Could one argue that?

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

I'm going to go back to Mr. Burns' comment where he said, “Bill S-203's proposed amendments to WAPPRIITA would prohibit the import and export of a live cetacean or its reproductive materials unless authorized by the Minister of Environment and Climate Change for scientific research purposes or if it's in the cetacean's best interests.”

That comment alone, coupled with that paragraph in the piece of legislation, would then lead a reasonable person to believe that if the Vancouver Aquarium is transferring its last dolphin to another organization that does have performances or does conduct performances for entertainment purposes, it would then be in conflict of the law and committing an offence.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Okay. Does S-203 permit educational shows?

[Joanne Klineberg]

Well, the sponsors of S-203 have indicated that they are approaching it through the lens of the keeping of cetaceans in captivity.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Bill S-203 does not express any of that, correct?

[Churence Rogers, Liberal, Bonavista—Burin—Trinity, NL]

Mr. Burns, you spoke about amendments in Bill C-68 and said that they could achieve similar objectives to Bill S-203. Can you expand on this and compare the changes in the Fisheries Act through Bill C-68 with the changes being proposed here through Bill S-203?

[Adam Burns, Director General, Fisheries Resource Management, Department of Fisheries and Oceans]

I think it's just me.

Good afternoon.

I would like to thank the committee for the invitation to speak to Bill S-203, an act to amend the Criminal Code and other acts (ending the captivity of whales and dolphins), also known as ending the captivity of whales and dolphins act.

This bill proposes amendments to the Criminal Code, the Fisheries Act, and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, WAPPRIITA.

Before I address the substance of Bill S-203, it's important to review the number and location of cetaceans held in captivity in Canada. To my knowledge, there are two facilities in Canada that hold cetaceans in captivity, the Vancouver Aquarium in British Columbia, and Marineland in Niagara Falls, Ontario. The Vancouver Aquarium has one cetacean in captivity, a 30-year old Pacific white-sided dolphin. It was rescued from the wild and deemed non-releasable. In January 2018, the aquarium announced that it would no longer display cetaceans at its facility.

The majority of Canada's cetaceans in captivity are located at Marineland in Ontario. My understanding is that it has approximately 61 cetaceans: 55 beluga whales, five bottlenose dolphins and one orca or killer whale. In 2015, the Province of Ontario enacted legislation banning the possession or breeding of an orca whale; however, the prohibition provided for an exception for the possession of the orca currently in captivity at Marineland.

With that context in mind, my remarks this afternoon will focus on Bill S-203's proposed amendments to the Fisheries Act. I will let my colleagues from the Department of Justice and Environment and Climate Change Canada respond to your questions concerning the bill's proposed amendments to the Criminal Code and WAPPRIITA.

Having said that, I will briefly outline the bill's proposed amendments.

Bill S-203 proposes amendments to the Criminal Code that would make it a criminal offence to own or have custody of or breed a cetacean, or possess its reproductive materials. Cetaceans currently in captivity would be grandfathered under the bill. There's an exception to the captivity prohibition for cetaceans that are injured and require assistance, care or rehabilitation, or when captivity is deemed to be in the animal's best interests as determined by provincial authorities. The bill's prohibition on breeding or possessing a cetacean's reproductive materials would not be grandfathered.

The bill's proposed amendments to the Fisheries Act would prohibit the moving of a live cetacean from its immediate vicinity for the purpose of captivity unless it is injured or in distress and in need of care.

Bill S-203's proposed amendments to WAPPRIITA would prohibit the import and export of a live cetacean or its reproductive materials unless authorized by the Minister of Environment and Climate Change for scientific research purposes or if it's in the cetacean's best interests.

With that as an overview of the bill, I will now turn my attention to the proposed Fisheries Act amendments in Bill C-68.

The capture of cetaceans from the wild falls within federal jurisdiction, and specifically falls under the authority of the Minister of Fisheries, Oceans and the Canadian Coast Guard. The committee may want to consider how the provisions in Bill C-68, which was approved by the House, and is currently in the Senate, addressed the objectives of Bill S-203; that is, phasing out the captivity of cetaceans while building in exceptions for the rescue and rehabilitation of those animals.

The government introduced Bill C-68, an act to amend the Fisheries Act and other acts in consequence, on February 6, 2018. Included in the amendments were provisions related to the captivity of cetaceans. Specifically, Bill C-68 contains a prohibition against fishing for a cetacean with the intent to take it into captivity, except where authorized by the minister for animal welfare reasons.

It's important to note that as a matter of policy, Fisheries and Oceans Canada has not issued a licence for the capture of a live cetacean for public display purposes since the early 1990s. The proposed amendment will simply codify the department's long-standing practice.

In addition to the cetaceans in captivity provision, Bill C-68 contains a new authority to make regulations with respect to the import and export of fish. Cetaceans are defined as fish for the purposes of the Fisheries Act. The department's view is that this regulation-making authority would give the government more discretion to determine the circumstances under which cetaceans could be imported into and exported from Canada. For example, there could be an import prohibition where the purpose is to keep a cetacean in captivity.

By way of exception, import or export could be permitted where the purpose is to transfer the cetacean to a sea sanctuary should those facilities be established in the future. There may also be circumstances where the captivity of a cetacean is deemed necessary to conserve or protect the species.

Like Bill S-203, Bill C-68 contains a non-derogation clause affirming that none of the proposed amendments affect the existing aboriginal and treaty rights of aboriginal peoples protected by the Constitution.

Minister LeBlanc, the former minister of Fisheries, Oceans and the Canadian Coast Guard, acknowledged that the amendments to the Fisheries Act proposed in Bill C-68 related to the fishing for cetaceans with the intent to take them into captivity were inspired by Bill S-203 and in particular by the work of now retired senator Moore.

That concludes my remarks. I thank you once again for the invitation to speak on S-203 and will be happy to take your questions.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Chair, congratulations. I have not spoken to this committee with you as chair, so I hope it won't offend you that, before I begin to put this amendment forward, I have to state on the record the various reasons that I so regret that every committee was asked to pass the identical motion that requires me to show up at committees at clause-by-clause.

It is true that, in fact, at this very moment, I should be at the fisheries and oceans committee, where the bill I am sponsoring, Bill S-203, is being presented and witnesses are being heard. I can't be in two places at once, so I presented what I could and ran here, because I believe this bill is very important, but so is the bill before the fisheries committee now on ensuring that whales and dolphins aren't kept in captivity.

If it weren't for the motion passed by this committee, I could have brought forward the amendments I have before you now at the report stage. The effect of the motion that was originally put forward by Harper's PMO, and then repeated by this Prime Minister's PMO, is that I have to be in two places at one time. I'm sure it's taking years off my life, and I don't mean that rhetorically; I mean it literally.

Despite the fact that I don't welcome this opportunity, I do appreciate that the individuals around this table aren't responsible for what's happened to me.

With good will, I will put forward my amendment, which is to speak to the issue of how we define “indigenous governing body”. This, of course, is found in the definitions section at clause 2. The current definition, as in the legislation at first reading, would exclude governing bodies that fall outside the Indian Act and the colonial system that was established for how indigenous nations govern themselves.

This, of course, was brought to the committee by Jennifer Wickham, the executive director of the Witsuwit'en Language and Culture Society. We do know from the Delgamuukw case, for example, that Witsuwit'en land is unceded and that they have been extraordinarily courageous—as all indigenous peoples have—in hanging onto culture, tradition and language in the face of oppression and colonialism. In the case of Witsuwit'en, for example, there is a still unbroken lineage of hereditary chiefs, and the hereditary chiefs and the traditional hereditary government on unceded land are not included under the Indian Act, so hereditary chiefs and governance such as that on Witsuwit'en territory would be excluded from being able negotiate to get access to funding and so on.

I'm hoping that this amendment will meet with your approval. It merely extends the definition of “indigenous governing body”, as found at clause 2, with the words “including a traditional hereditary government of unceded lands that is not provided for under the Indian Act”, etc.

Thank you, Madam Chair.