Fisheries Committee on Oct. 22nd, 2009

[The Vice-Chair, Bloc, Raynald Blais]

Let us get started right away out of respect for our witnesses who are here today.

Mr. McGuinness and Mr. Chapman, you may go ahead with your presentation.

[Patrick McGuinness, President, Fisheries Council of Canada]

Thank you very much, Mr. Blais.

I am Patrick McGuinness, the president of the Fisheries Council of Canada.

I thought I'd give you some background and maybe talk a bit about sustainability and, of course, end up with the position of the Fisheries Council of Canada with respect to the proposed amendment to the NAFO constitution.

First, I've been involved as an industry adviser to the NAFO delegation since 1985 as vice-president of the Fisheries Council of Canada, now as president, and in that reign have overseen the publication of three documents.

The first one was in 1987, Foreign Overfishing: A Strategy for Canada. Basically, what we took away from that is that Canada had basically developed good cooperation with East Bloc countries, but that type of cooperation was undermined by the activities of Spain and Portugal and, at that time non-NAFO members, South Korea, Mexico, and the United States of America. We did this report in-house.

In 1990, we hired the Oceans Institute Of Canada to produce the document called Managing Fisheries Resources beyond 200 Miles: Canada's Options to Protect Northwest Atlantic Straddling Stocks. This was a great document in terms of 101 for international fisheries management.

The take-away from that document was simply that the Law of the Sea was like reading a book with the last chapter missing, and that was simply to say there is nothing in the Law of the Sea that really addresses straddling stocks and the issues and demise of the resources that we saw on the high seas. Basically, what the Law of the Sea was saying is that if there is a difficulty concerning fishing on the high seas of straddling stocks, the countries should seek to agree to measures as to how that should be handled.

With this document and recognition that there was nothing in the Law of the Sea that could help us address the issue, we started a campaign to try to see if there could be amendments to the Law of the Sea to address this issue. Really, the response from the international legal lawyers who are involved in oceans issues was this: you people in fisheries had your day in 1982 with the Law of the Sea, and what the Law of the Sea gave you was the fact that you have an economic zone out to 200 miles, so you should be very thankful for that; and as far as the Law of the Sea is concerned, your issues have been dealt with.

At the same time, what was happening was an emergence in terms of the issues of biodiversity, and there was the development of a convention with respect to environment and development. So what we basically did with respect to straddling stocks was to redefine the issue. The issue really became one of biodiversity--if you will, the destruction of fish stocks on the high seas, migrating in the straddling stocks, and so on. Our position was that something should be done internationally to deal with the straddling stock issue.

The UNCED conference in Rio de Janeiro in 1992, I believe, agreed with that concept and gave the message that the United Nations should look toward developing international rules and regulations with respect to the management of highly migratory species and, of course, straddling stocks. In the end, that led to the 1995 United Nations Fish Stocks Agreement, or UNFA. Of course, that was also one in which Canada took leadership, and we are very gratified by that development. Nevertheless, in NAFO the issue still seemed to be quite difficult in terms of bringing responsible fisheries management and to stock overfishing.

That led us to continue our quest, and in 2003 we contracted with Dalhousie Law School to develop this document, basically entitled Straddling Fish Stocks in the Northwest Atlantic: Conservation Concerns and Options. We actually got some funding assistance for this from the Department of Fisheries and Oceans, from the Government of Newfoundland and Labrador, and from Nova Scotia.

This document identified some recommended or possible amendments to the NAFO convention. Basically, it stated that if it's to be amended, it should incorporate UNFA principles. There should be, if you will, a bilateral type of diplomacy to see whether there can be some common vision among the major beneficiaries in terms of the allocation of stocks--Canada, the European Union, and Russia--on addressing or amending NAFO so that sustainability would be the vision of the future.

It identified decision-making problems in NAFO. It recommended that NAFO have an in-house, accessible dispute settlement mechanism.

Many of the issues coming forward are very important, but they're very much with respect to fisheries management issues. It recommended that the NAFO constitution really start to move and use words like “ecosystem-based management”.

The Fisheries Council of Canada has been in the game a long time. We've actually been hiring people to help us develop a strategy.

I just want to talk about sustainability. One of the big issues the Fisheries Council of Canada has been working on, in concert with an organization we're members of, the International Coalition of Fisheries Associations, is the rehabilitation of the image of fisheries management. We have a problem in fisheries management in terms of the world's perception of us. We've had a record of considerable problems with fish stocks, both in national waters and in international waters.

The bottom line is that worldwide we're in the marketplace competing for a share of stomach with poultry, pasta, meat, and so forth. There's no question that food safety is not our issue. Food safety may be the meat industry's issue. Our issue, in terms of vulnerability, is sustainability. When you talk to retailers and food service operators, they want to ensure that when they're serving their customers, those customers can feel, with respect to the species they're eating, that they are part of the solution and not part of the problem.

What we've seen over the last number of years is that with major retailers in Europe, particularly in the U.K. and in France, and in Wal-Mart and Loblaws here in Canada, with respect to fish and seafood, sustainability is the watchword. To a certain extent, that's a reflection of failures, if you will, in fisheries management either nationally or internationally. To try to address that issue, you basically have to modernize fisheries management.

Our job, in terms of the world marketplace, is to prove two things when we're out there selling fish. One is that we're not ruining the stocks. The other is that we're not ruining vulnerable marine ecosystems. There is pressure on our industry and on fisheries management from the marketplace and, in particular, from environmental NGOs.

As I say, I'm co-chair of the International Coalition of Fisheries Associations, which is the Fisheries Council of Canada, the National Fisheries Institute in the United States, the Russian fisheries federations, the Spanish fisheries associations, Australia, and New Zealand. Basically, industry gets the message. Industry gets the message that if we're going to be in this business, if we're willing to compete in the marketplace, we're going to have to demonstrate to consumers and to the world that what we're doing is sustainable.

In that background, around 2004-05 Canada decided to lead that message with respect to the modernization of NAFO. But really, for an institution that has been spending many years fighting over who gets how much fish--give me the fish, don't give it to you--there was a fairly quick pickup of this message that we have an outside world there, and just as Canada has to clean up its fisheries management regime, NAFO does also. So quite to my surprise, that was picked up.

With respect to the amended convention that we have in front of us, let me just say that the Fisheries Council of Canada has been involved in the process from the beginning. In that process, of course, we have our own industry advisory group that gives us advice as to how we should move, but I can tell you frankly that I've also had discussions and input from Bob Applebaum. His input and advice to us has been very important, as we've gone through the draft, in terms of getting specific types of changes that the Canadian delegation basically bought into and about which, at the same time, they were able to convince their colleagues from other countries.

But in terms of what we're looking at now, from the Fisheries Council of Canada's point of view we do not see any tangible negatives in the document. But we do see specific improvements with respect to the current NAFO regime.

We like the emphasis on consensus, and when consensus is not reached, in order for a proposal to be adopted there has to be a two-thirds voting rule. We like the fact that there's an accessible in-house dispute settlement mechanism. And we like the fact that the document codifies in NAFO a management regime that can be described as modern.

Our recommendation to Parliament will be to ratify the document as presented.

Thank you very much.

[The Chair, Conservative, Rodney Weston]

Thank you, Mr. McGuinness.

Mr. Chapman, would you like to make some opening comments?

[Bruce Chapman, Executive Director, Groundfish Enterprise Allocation Council]

Thank you very much, Chair.

I am not going to repeat anything Patrick said. I'm here mostly, I suppose, as a witness to try to address questions, to the extent you have them. I jotted down a few things just as an overview for my own memory.

I started in the fishing industry in 1977, coincident with the extension of the jurisdiction to 200 miles. I suppose I've been covering the NAFO file since the early 1980s. So I've been kicking around the block on NAFO for quite a while, attending virtually all of the meetings.

When I look at the existing convention we have in front of us, I just reflect on the fact—from my observations over the 25 years or so I've been covering NAFO meetings—that we've had four very different phases of NAFO under the same convention.

I guess I'd like to describe the first phase as being from the early to mid-1980s. At the time, there were lots of fish and lots of quota on the go. Mainly based largely on these large amounts of quotas and fish, Canada controlled NAFO very much.

In addition to having lots of cod, which we had difficulty selling at the time—in a viable way, at least—we took some of our surplus cod and had a long-term agreement with the EU. In exchange for fishing rights in Canada, they provided us with reduced tariffs and with market access. In a similar way, we provided codfish to both Spain and Portugal through bilateral agreements. In addition to that, at NAFO and bilaterally—which affected NAFO—we provided underutilized species' quotas to the East Bloc countries.

So with that combination of trading away fish we weren't catching ourselves, we effectively controlled the NAFO environment during the first period of its life. And all was peaceful, more or less, at the NAFO table.

The mid-eighties changed things in a couple of different ways. These fish quota agreements, most of which were for market access, expired. At that time we saw the Germans lodge objections and saw them fishing cod on the nose of the bank—a lot of cod in one year in particular. We saw the EU change their approach at NAFO as well. Spain and Portugal joined NAFO in 1986. The EU very much didn't want Spain and Portugal, with their capacity, fishing in Europe; they wanted to find fishing opportunities for them elsewhere, including in the northwest Atlantic.

So the EU challenged the TAC-setting process and the quota shares. They basically challenged everything that was challengeable. At that time, Canada still had the underutilized species in its mix, and we were still able to secure votes, I suppose, at NAFO and cooperation at the NAFO table through the eastern European countries.

The decisions of NAFO at the table more or less went along well, but on the water we saw increasing problems with enforcement and cheating by fishing captains. It was systematic in the late eighties and early nineties.

Now, in the early nineties, in my view, we had the height of the overfishing problems and turmoil at NAFO. We had rampant use of the objection procedure by the EU, in particular, and we had the so-called discovery of the Greenland halibut or turbot resource at the time. It all led to the fighting over quotas for turbot, culminating in the Estai incident. There was conflict on the high seas.

When that was resolved—more or less around the same time, or in a similar timeframe, as the UN fish agreement came into place—we had a new phase. So in the last 10 years or so, we've moved into more of a détente and almost a cooperative arrangement with many of the former protagonists at the table, in particular the EU. Both Canada and the EU are cooperating on most of the issues at the NAFO table. How well all of this cooperation will continue is really unknown.

There are signs of fish stock recovery. There are signs that some of the countries who don't now have large quotas, notably the United States and Korea, would like to have a bigger share as these fish stocks recover. Canada and the EU have the largest quotas. It's in our interest to have a status quo in the quota-sharing regime.

That is why we support the move to a two-thirds voting system from the current 50% plus one. It helps us to defend our quota shares at the table. That's why we support an effective dispute resolution procedure to deal with objections by countries such as the Faroe Islands, which are setting their own quotas for shrimp in 3L because they disagree with the outcome at the NAFO table.

When you get into these negotiations, the national interests come to the table. It's the international political environment and how it functions at the table, rather than the document itself, that will most influence the future. The document will help, but it won't dictate how long this will take to unfold. It may not be a made-in-Canada document. As in any dispute, you try to enter into negotiations in good faith to come up with a product that meets your basic objectives. In the end, you sit back and decide if it's in your interest or not. In our view, it is in our interest to ratify this new convention.

[The Chair, Conservative, Rodney Weston]

Thank you, Mr. Chapman.

Mr. Byrne.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Thank you, Mr. Chair, and my thanks to our guests.

Mr. McGuinness, you laid a bit of a stink bomb here, but I'll ask you to respond to it quickly. You imply that Bob Applebaum has been advising you and that he's been integral to developing the current revised NAFO treaty. At least, that's the impression you left. You seemed to imply that Bob Applebaum supported the two-thirds majority and that he supports the provision of a NAFO mechanism inside the 200-mile limit.

Is that what you're telling the committee?

[Patrick McGuinness]

Absolutely not. All I'm saying is that this is a large document and that I sought and took his advice on some of the wordings. We debated the issue between 50% plus one and two-thirds, and we parted company on that issue. We debated a number of issues that at the end of the day we disagreed on.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

I appreciate your clarifying that, because I thought there might be a bit of confusion. Mr. Bob Applebaum would probably say to you that the UNFA provisions are pretty well similar to the NAFO ones except for one thing, the final thing. If a vessel is suspected of being in serious non-compliance with NAFO rules, under the UNFA the coastal state, say Canada, would be able to board, inspect, and require the flag state to impose appropriate sanctions and deal with it within three days. If the flag state did not, the coastal state would be able to draw those vessels into port and provide appropriate sanctions under domestic policy.

Under the revised NAFO convention, no such power would exist. UNFA provides the coastal state with a much more meaningful enforcement measure. The revised NAFO convention does not allow the coastal state to draw the infringing vessel into port.

Why is the NAFO solution better, in your opinion, than the UNFA solution? International law prescribes a way for Canada to board, inspect, and penalize an infringing vessel. Under NAFO, if the flag state doesn't do anything, then it's completely consistent within NAFO guidelines. Why would you want the revised NAFO rules instead of the rules under international law?

[Patrick McGuinness]

Basically, from an industry perspective, we are focusing on different issues than that. I must admit, in terms of my understanding of the document, I don't believe Canada has withdrawn its rights and obligations under the Law of the Sea or in UNFA. Have you asked that question of the legal representatives of the Department of Justice and the Department of Fisheries and Oceans and--

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

The answer to your question, since you've asked it, is yes. When you sign on to a NAFO document providing a very specific enforcement measure or mechanism or process, that's the process you follow. As a ratifier of that NAFO convention, you don't then come out and say, “Well, we're not going to accept it. We're now applying a separate body of law called the UNFA law, which is outside of the NAFO revised convention.” That's the response we got, so why would we do that? Why would you want to sign on to something like that?

[Patrick McGuinness]

I must admit you look at an agreement from an industry point of view and you ask what our fundamental objectives are here. Mr. Chapman and I outlined some of them. Seizing vessels and bringing them back and so forth is an element, but the issue is really trying to work in such a way where you're encouraging nations and fishing vessels to adhere to the rules and regulations.

It's an issue. As I said, we haven't focused on that from an industry point of view, nor is it necessarily the essential element in how you address the infraction. If you're saying that the only way to address an infraction is to cause an international incident, I'm not sure that's the way to go.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

I would disagree with your categorization of it, because it's in the Law of the Sea that the coastal state, the inspecting state, actually has the right to not only board and inspect, but if a serious infraction is committed to which the flag state is not responding appropriately, the Law of the Sea allows the inspecting state to seize the vessel, bring it to port, and pose appropriate sanctions if the flag state refuses. How that can be an international incident is beyond me.

Since you raised the question of the marketplace--and providing sustainable product is very important--let me ask you this about the whole circumstance surrounding NAFO's potential involvement inside 200 miles. In market certification it's very important that Europe certify Canadian seafood products before entry is allowed into the European Union marketplace. If they all of a sudden disagreed.... Shrimp, for example, is a transboundary stock that's managed by NAFO. A very small portion of it is actually managed within NAFO. Most of it is actually a Canadian stock or is managed by Canada. If Europe suddenly decided that the Canadian harvest inside the 200 miles was no longer very appropriate and that we were just catching too much turbot as a bycatch, or too much redfish, they could say that since it has actually been decided that Canada agrees that NAFO has the ability to manage inside 200 miles--and it is a transboundary unitary stock....

Do you have any concerns that certain political pressures could be laid in the European Union? As a member of NAFO, they could simply say that since that provision exists within the NAFO convention, they want one management regime both outside and inside 200 miles. It is a NAFO-managed stock, so they could ask why we don't apply unitary measures. And if they don't get unitary measures, they could say, “You've got something to hide, Canada, so therefore we will not certify your shrimp product anymore.” Is that a possibility, at least?

[Patrick McGuinness]

It is extremely far-fetched. I basically can't understand what you're trying to communicate, in the sense that the bottom line is that there are WTO rules with respect to how Canada has access to the European market. We have rights to the market under WTO.

There is no question, in terms of what's happening with the concern about sustainability, that there are retailers or whoever in Europe who want to ensure that the shrimp coming out of Canada is in fact being harvested responsibly and it's not illegal, unreported fish. The issue is that in terms of what's happening in Europe, they certainly are going to be requiring--it's still in negotiations--a catch certificate. Basically there will be an administrative agreement between Canada and the European Union wherein the Department of Fisheries and Oceans would be asked to certify that the shrimp was harvested in a registered Canadian vessel that had a quota and that when that fish was harvested the fishery was open--end of story.

That's the agreement we'll have. That's a trade agreement. This is called international trade. What you're talking about is some sidebar type of issue with respect to fisheries management. So the picture that you describe has no basis in reality.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Mr. McGuinness, the seal issue is also a trade issue. It affects harvesters and processors in eastern Canada. Can I ask you, then, why do you think the Europeans asked for it? What is the basis on which the European Union particularly, as holder of the pen, wanted this special provision to allow NAFO to manage inside 200 miles?

If we know that the regulatory legal environment already exists in Canada to allow for cooperative science-based activities to occur in Canadian waters, that other mechanisms exist, that we've surrendered Canadian sovereignty on the banks, on the nose and the tail, to allow for protection of corals and sponges and other sedentary species, why do you suspect that Europe in particular wanted that specific provision to allow for management inside 200 miles?

[Patrick McGuinness]

I hope you've read the convention.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

I have.

[Patrick McGuinness]

Basically, there's nothing in this document that says a country has requested a provision so that it can manage fish inside the Canadian zone. Basically, there's a provision, as you say, that if suddenly Canada feels that NAFO has done something with respect to fisheries management or in terms of protection of the ecosystem, and if in fact some of that ecosystem ranges into the Canadian zone, and if Canada feels that it's in the best interest of the request to have a consistent management regime, then Canada has the option to go that way.

The way you positioned that opening comment, that the EU has requested that they have a provision that they can manage fish in Canadian zones, is a misrepresentation of the clause.

My understanding as to why they've requested it in there is that they have a similar provision in the NEAFC, the North East Atlantic Fisheries Commission, which governs the fishing activities on the eastern side of the Atlantic, and the Northwest Atlantic Fisheries Organization is on the western side of the Atlantic. They have it in that, and I suspect that what they wanted to see was some sort of consistency.

As Mr. Chapman said, you look at an agreement and you try to determine what is your basic interest. In this issue, it's quite clear in terms of the English language—I'm sorry, Mr. Blais, I haven't read the French translation—that the clause is designed in such a way that the coastal state, whether it be Canada, the United States of America, or Greenland, has protected its sovereignty, as rightly it should, and has an opportunity.

[The Chair, Conservative, Rodney Weston]

Thank you very much.

Monsieur Blais.

[Raynald Blais, Bloc, Gaspésie—Îles-de-la-Madeleine, QC]

Thank you very much, Mr. Chair.

Good afternoon, gentlemen.

Mr. McGuinness, in your presentation, you mentioned that you were surprised that the message about fisheries management had been well received by NAFO.

Could you explain your reaction? Why were you surprised?

[Patrick McGuinness]

I must apologize, Mr. Blais. I didn't have the translation.

[Raynald Blais, Bloc, Gaspésie—Îles-de-la-Madeleine, QC]

I will repeat what I said. I know that the chair will be generous about the time; he will not cut me off and will give me a bit more time. I appreciate that.

In your presentation, you said that you were surprised by how quickly NAFO picked up the message or by how receptive it was to that message around 2004-05. I am trying to understand your reaction. Why do you think you were surprised?

[Patrick McGuinness]

I was surprised, because as I say, industry was already quite aware internationally that the issue we're facing in the marketplace is one of sustainability. We have to demonstrate that we're not ruining stocks, corals, and vulnerable marine ecosystem.

I know that countries such as Canada and the U.S. are quite aware of that, but NAFO has about 13 countries, and I wasn't sure that the Russian industry or government and even certain elements of the European Union, Spanish and Portuguese industries would be that responsive to this higher-level look at the situation we're in. When Canada presented this issue, that we have an image problem, a marketing problem, and that one of the ways forward is to upgrade this institution called NAFO so it has rules and regulations that demonstrate it is a responsible fisheries management organization--and by the way, that is important to us--I was surprised that some of our members were easily convinced that is a good path to pursue.

[Raynald Blais, Bloc, Gaspésie—Îles-de-la-Madeleine, QC]

Unfortunately, history tends to repeat itself in certain cases, and in this situation, NAFO does not necessarily have a good track record when it comes to results. Just look at the Atlantic cod situation.

With that in mind, were you surprised because there was a new attitude solely towards the marketing opportunities? I do not get the sense that these countries are necessarily more interested in species conservation.

[Patrick McGuinness]

You're absolutely right, Mr. Blais, that the history here has not been glorious. I'm not naive enough to think that the situation is totally remedied. There's no question that there is a significant need to be vigilant.

I must admit that during this time of quiet that Mr. Chapman referred to, when basically there weren't enough fish to fight over, Canada had a very good strategy. The strategy for Canada during these quiet times, if you will, was to get a wide range of new enforcement and inspection types of measures into NAFO, and these were adopted.

So there is a higher enforcement issue. There's no question that it is a delicate situation right now, because long-distance fishing--

[Raynald Blais, Bloc, Gaspésie—Îles-de-la-Madeleine, QC]

I am getting to the heart of the matter. After listening to your answers to my questions, how can we be satisfied with what is currently on the table in terms of enforcement? There is no use having pretty laws and wording, if there is nothing to enforce them. They are only worth the paper they are written on.