Fisheries Committee on Oct. 27th, 2009

[The Chair, Conservative, Rodney Weston]

Thank you, Mr. McDorman.

Mr. Saunders, do you have any opening comments you'd like to make at this time?

[Dr. Phillip M. Saunders, Dean of Law, Dalhousie University]

Thank you, Mr. Chairman.

Professor McDorman and I have worked together in various contexts over the years. We haven't had an opportunity to coordinate our opinions, but we've probably been over quite a bit of the same ground. I've followed NAFO and other organizations over the years. My first involvement in high-seas fisheries issues and in regional organizations was in the South Pacific, and to some extent in the Caribbean. During the 1980s and early 1990s, we were trying to help strengthen efforts to control the high-seas fishing of tuna. This was a slightly different situation, but it had similar problems.

Later I participated in establishing legal documents for the Western Indian Ocean Tuna Organization, which turned out to be a bit of a dead letter. In 2003 I prepared a study on straddling stocks for the royal commission on strengthening Newfoundland and Labrador's place in Confederation. This was at the height of the argument over the so-called custodial management option.

I've had the opportunity to review previous testimony of hearings in this committee and in the Senate. In 2006, I appeared before the Senate committee on NAFO issues. I've tried to approach this from the perspective of what we might realistically have achieved, or hoped to achieve, five or ten years ago when we were looking at these same problems over and over again with NAFO. I'd like to know how the pluses and minuses of what we see now compares with what we hoped we might achieve before this process began.

I want to highlight a few critical issues in the amendments. It is a question of pros and cons. First, I would note that much of the amendment content is a process of modernizing the NAFO structure to be compatible with the United Nations fish stocks agreement. The amendments seek to bring NAFO in line with the principles and processes that are provided for in the UN agreement, which puts our FMOs, or fisheries management organizations, in a larger international setting. Professor McDorman and I are somewhat skeptical of some of the principles of ecosystem management and the precautionary approach. Actually, I'm less skeptical in some respects than he is. But we see some benefit in the ecosystem approach and the move to closed areas. It could have been done without it, but it is being done, and this is a positive step towards habitat management instead of just fish management.

We see some movement in incorporating flag-state obligations as an explicit part of the agreement. One of the huge failures of fisheries management in the high-seas areas has been the failure of flag states to properly regulate and control their vessels. Without going into details, the incorporation of the principles of the UN agreement provides the opportunity for more substantive use of dispute settlement procedures. It offers a way of going after countries that persistently refuse to control their vessels.

The port state obligations are incorporated—not much of a change there. But it's probably one of the areas in which both NAFO and the North East Atlantic Fisheries Commission have had their greatest success in dealing with the completely unregulated fisheries outside the membership. The objection procedure is still a problem. But at least now we see the provision of some criteria and a requirement to give reasons for objections. These reasons are limited to two categories: compatibility with the convention, and the possibility of discrimination against a particular country. It may not be everything we wanted, but it is undoubtedly a step beyond where we were.

Similarly, the dispute settlement process, which applies in a convoluted way to the objection procedure, is one of the things we were asking for years ago. Again, it may not be everything we want, but it provides the possibility of a compulsory dispute settlement process.

All of these are positives, although they depend on the political will of the countries involved to make them work.

There are still things I would have some questions about. We still have the objection process. I don't think it's likely that any fisheries management organization is going to completely get away from that. You still have the possibility that scientific advice can be ignored, but there is a requirement for collaboration. I don't think you want to move to the mandatory adoption of scientific advice. It's not done in most cases, and although it should be given serious attention, requiring it would not be the best move.

Also, we have the question of the two-thirds majority vote instead of the simple majority. I was quite concerned about this a few years ago when it was first proposed. I've seen counter-arguments since that have somewhat convinced me that this may play somewhat to Canada's advantage in a way I didn't expect. It may provide the opportunity to prevent measures being put through that we don't want, whereas I had thought of it primarily as an impediment to getting measures that we did want. I think that's open for argument.

The other issue that I know has been raised on this committee and certainly in the press and elsewhere is the question of the potential for measures to be applied within the Canadian 200-mile zone. I'm sure that's something both Professor McDorman and I would be happy to take questions on.

Those are the pluses and minuses as I see them. What I've tried to do is look at the outcome of these negotiations—and I would endorse what Professor McDorman has said, that these are not negotiations in which you can simply demand; you have to negotiate. I think we are farther ahead than we were with these amendments. I think a lot of people would justifiably argue we aren't far enough, but the choice is, in fact, as it has been put by Professor McDorman: at this point it's start over or accept the amendments we have.

Without going further than that, I'd be happy to take questions.

[The Chair, Conservative, Rodney Weston]

Thank you very much, Mr. Saunders.

Mr. Byrne.

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

Thank you, Mr. Chair, and thank you to our witnesses.

I have a straightforward question for a straightforward answer. Is custodial management achievable, Mr. Saunders?

[Dr. Phillip M. Saunders]

As a straightforward answer, number one, you have to define what it is. Operating on the definition that was used back around 2003 or so by the legislative committee in Newfoundland and Labrador as some assertion of actual jurisdiction that could be enforced against other states over fisheries beyond 200, no, it's not achievable at this point in time.

We are subject to the Law of the Sea Convention, which explicitly prohibits that, and we are subject to the compulsory dispute settlement procedure under that convention, which was not in place at the time of the Estai incident, which completely changes the picture on that.

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

So it is the policy of the Government of Canada today that we exert custodial management of the nose and the tail of the Grand Banks as well as the Flemish Cap. That is the official government policy. As a witness appearing before this committee, as an analyst of legal proceedings and policy matters, what you're saying is there is no legal essence to that. It's a slogan and not an actual policy or a legal mechanism.

[Dr. Phillip M. Saunders]

I don't think I actually said any of that yet, certainly in terms of the slogan.

What I will say is that it is a term—and I think Professor McDorman would agree—that has no definition in international law because it's not an accepted concept. Whether it is a government policy or it's been stated—and I did read the previous testimony of the minister—I can say from an analyst's point of view that if custodial management is what it was said to be by the Senate committee previously, by this committee at one point, and by the legislative committee in Newfoundland in the early 2000s, then no, we haven't achieved that, and we can't.

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

Thank you. I'll disagree with your latter statement.

You mention that there are improvements that obviously could be made. One of the options you did not include, Mr. McDorman, is not to accept this treaty and start over again. It took 30 years to get to this point. There have been no revisions to the constitutions of the convention of NAFO from 1978 until 2009, presumably, and we still haven't got there, so it could be some more years yet. Realistically speaking, once we accept the revised convention we might safely presume that it will take another 30 years to provide further modifications or improvements to the NAFO convention. That's a bit of conjecture, but needless to say it doesn't happen quickly.

One option may be to go back to the table, not to accept the revised NAFO convention, and to seek further improvements. One of the further improvements I see as possible is a provision of the Law of the Sea, which actually gives enhanced powers to the coastal state. Once a serious infraction is noted, under the Law of the Sea notice has to be given to the flag state. If the flag state fails to take action, under the Law of the Sea power is provided to the inspecting state to take action, to return the vessel to the port of the inspecting state, if need be. Under the revised NAFO convention that provision is not provided for. It is the flag state that continues to hold absolute jurisdiction over the enforcement and potential prosecution of a flagged vessel that is being suggested is conducting a serious infringement of conservation policy or NAFO rules. Why wouldn't we go with the United Nations Law of the Sea, as opposed to a watered-down NAFO version?

[Dr. Ted McDorman]

There's a lot in your question, and it's a little difficult to sort through all the different parts.

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

I'll say this. What's better, the United Nations Law of the Sea and its provisions, or the NAFO convention?

[Dr. Ted McDorman]

It's six of one, a half dozen of the other. I'm not sure there's a great deal of difference.

One of the things you said toward the end of your comments was that the 1995 implementing agreement, which is attached to the UN Convention on the Law of the Sea, provides that a coastal state can prosecute. It does not. There's nothing in the 1995 agreement. There's nothing in the 1982 Law of the Sea convention that would provide the opportunity for Canada to prosecute a vessel for breaching a NAFO regulation outside of 200 nautical miles. There's no international law to support that, unless the flag state--there's an exception to every rule--requests it in some way, shape, or form.

So that part of what you've asked is incorrect in the law. There's nothing in the NAFO agreement that does that either, but that's not terribly surprising. Countries are unwilling to give up prosecutorial responsibility for vessels that are on the high sea.

Where your question was dead on is of course that there are provisions in the 1995 agreement, the Law of the Sea fisheries agreement, that in the event of a breach of NAFO regulations--that's the example they use--the inspecting state may, in some situations, bring that vessel to port, and then the vessel can be investigated, etc. But there's not a prosecution authority.

It's my understanding that the current inspection and enforcement arrangements under NAFO are not in the amendment, but that the operating guidelines and the operating principles now being used incorporate most, although perhaps not all, of what is in the 1995 agreement. So I think that all we would get by going back to renegotiate that is to have a provision that the NAFO at some level already has.

The other part of that is that there are no other fisheries agreements in the global community that actually incorporate the kind of detail in terms of fisheries inspection and fisheries enforcement in their constitutive documents. They give that power to the commission or the organization in question, and then that becomes the negotiated arrangement, separate and apart.

So if I've answered your question, it would be that I'm not sure we'd get a whole lot more by going down the 1995 agreement route on the issue of fisheries enforcement than what already is in NAFO, and it's unlikely that we would want to get into that kind of detail anyway in a fisheries constitutive document.

Going back to an earlier point, would this treaty be in place for 30 years? It's hard to tell, and I take your point very much. You don't know. I do know that fisheries organizations like NAFO now are under a consensual review process at the international levels, so if things were to change, I would assume there would be significant pressure to change the NAFO agreement. I forget the UN body that does that, but it keeps an eye.... There's a reporting process now to the UN about how regional fisheries management organizations are working, and if it's not working or there is significant change in the development of international law in the areas of fisheries, then that would be incorporated into a new NAFO.

But I do take your point. It is a very difficult time, and it's very difficult to get these things done. It can take a number of years.

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

Your testimony this afternoon contradicts other legal advice that the committee has received, but thank you. We appreciate it.

The other point would be that unlike a trade dispute, a biological dispute or a renewable resource dispute is dependent on fecundity and recruitment on an annual basis, on a seasonal basis. Disputes often wreak havoc with that fecundity and recruitment. Specifically, what I'm saying is that if you have a dispute on a fisheries resource, you had better get it resolved, at a bare minimum, within the same calendar year, preferably within weeks of the objection being lodged, because if you overfish, it's really tough to get that ground back. If you overfish, you deplete the stocks.

Realistically, being lawyers you'd understand. In the ultimate conclusion of this, in all the procedures, can the objection procedure be resolved in a binding way within days, within weeks, within months, or within years of the objection being raised if an objecting country files all of the options available to them within the NAFO objection procedure?

[Dr. Ted McDorman]

You're right. That's fundamental. The objection procedure can be used. The dispute settlement will take years. The point to be made is that there is no fisheries agreement anywhere in the world that has a shorter form. So yes, you could always try to negotiate for something better, and that may be a good goal, but there's no indication by anybody that that's even remotely possible. There's no quick process for dispute settlement. There's no quick process for objection.

The NAFO amendment, tracking, again, other agreements, has tried to have a short form with an ad hoc tribunal to try to get to that. But if a country wants to disregard the fisheries organization, it's going to take a number of years before that's going to be corrected. As I point out, that's a problem, but it's a problem that exists in all the fisheries organizations. It's not unique to NAFO. That may not make you feel any better, but it's not as if, for the sake of argument, the Canadian government has somehow failed to achieve something that somebody else has accomplished. In this particular case, they certainly have not.

[Dr. Phillip M. Saunders]

I have a couple of points.

I agree that international dispute settlement generally takes time, and this is an attempt to have a short form. Part of that, I think, even though it may not be intuitively satisfying, is around the push for many years to try to get some transparency into the objections and to bring people out into the open. What the panel process at least does is allow for the “name and shame” kind of option. Most countries don't actually want to be labelled in this way, and it does provide an option for getting some of it dealt with relatively quickly.

The second point I'd make is that it is true that it would be better to get an objection to a quota done as quickly as possible. I'm not so sure, and I defer to biologists on this, that all of the damage and the irretrievable part is done necessarily in the first year an objection goes in to a quota that is exceeded by a certain amount. The irretrievable damage that has been done to the east coast fisheries took some time more than that. The process in fact may still serve a useful purpose in that context, even if it's, as Professor McDorman said, by no means perfect.

[The Chair, Conservative, Rodney Weston]

Thank you.

We'll go to Monsieur Blais.

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

Thank you, Mr. Chairman.

Good afternoon, gentlemen. We are in an area that is on the fringe of international law. We are among nations who, with some good will, are trying to negotiate an agreement on waters that are considered to be international.

Mr. McDorman, you touched on an important point as to the kind of negotiations we are involved in with other nations, by stating that we have more to lose than the Europeans and the Americans. So in a way, we are stuck.

In what way are we more squeezed than the others, and in what way can this skew the negotiations process?

[Dr. Phillip M. Saunders]

I'll start, and if Professor McDorman wants to add on, he can.

I think the fundamental dynamic is where the fish are, and the ones of greatest interest are adjacent to our zones. They start from the fundamental position that if NAFO isn't there, as Professor McDorman said, then it's high seas. One of the things suggested at the time custodial management was being pushed was that we just walk away from NAFO. The problem with that is that if you walk away from NAFO, what you leave behind is not our jurisdiction. You leave behind high seas and the relative free-for-all that it means.

I think the Europeans and other are probably quite well aware of the fact that the only show in town for the foreseeable future is some form of NAFO, and they can play to that. They don't have fisheries that we have any interest in. We're not able to come back that way. So the negotiating power, the default position, in terms of the legal landscape and in terms of economic interest, is going to be primarily in their hands, or at least in the hands of the status quo. That might be a way to put it.

[Dr. Ted McDorman]

If I can add a little bit of a different type of context to that, in the NAFO situation there's no question that Canada has the most interest in the fish beyond 200 nautical miles. We can understand that in terms of the way the stocks exist, and the Europeans have less interest. But we're in kind of an equal situation, so we're not in a good bargaining position.

Having said that, it's worth remembering that of course the Europeans are coastal states in the northeast Atlantic fisheries area. In the northeast Atlantic fisheries area, they're kind of in the inverse position to Canada in an odd sort of way, in that some of the things that are in the RFO, the amendments to NAFO, actually have as their origin what the Europeans have been willing to accept beyond 200 miles to protect their fisheries in the northeast Atlantic.

Admittedly, the northeast Atlantic fisheries area is different for a whole lot of reasons. Not to say they have some sympathy for Canada, but the Europeans are in our position in a different part of the world, so there's some sense that they have some understanding of where we're at.

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

This is not the first challenge nations have faced as far as management of fisheries is concerned. We have the Atlantic Ocean. The treaty affects waters closer to us than to Europe. But, on the other hand, Iceland had to protect itself from the invasion of its cod fishing area. I imagine that Great Britain and other countries, such as France or Spain, would also have adjacent waters, which must have resulted in negotiations.

I would like to understand our position in relation to with what has been done and what has not been done, and on the results we achieved, unfortunately. Taking into account the sovereignty of each of these countries, do we not end up wishing that somebody would show some good faith? Unfortunately, there is not much chance of that happening, given the financial interests and the wish to bring in as much fish as possible in a short period of time.

Finally, are we not stalled in these negotiations, where it is every man for himself? At the end of the day, are we not faced with these nations who do not want to hear anything and will never pay attention to anything of interest as far as conservation of the resource is concerned? What we are experiencing with NAFO, we have seen elsewhere.

How can you compare all of that?

[Dr. Ted McDorman]

It's very difficult. I would take the view that most of the countries that were negotiating in NAFO are negotiating in good faith and have an interest in conservation. After all, if there's no fish to fish, then there's no fish to fish. So all of the countries--whether they be the Europeans, whether they be the Icelandic, the Norwegians--that are participating in NAFO have a fairly high degree of good faith.

There is an interesting reality that's going on, as I said in my opening remarks, that these organizations are starting to look very much like one another around the world, regardless of who is in Canada's position. Off the coast of Australia, it's Australia in our position, yet the agreements that are there look very similar to the ones that this NAFO amendment is at. This indicates that while in one scenario the Europeans may have the upper hand, in another scenario they do not. We get a similar type of agreement coming out.

So I would take issue a little bit. I think there is a lot of goodwill among the countries. Now, they have interests as well--all countries have their interests--but for most fishing countries, the interest is that there has to be some fish. I'm not a European specialist, but we've seen significant change in European behaviour on fisheries. Now, it hasn't been perfect.

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

Unfortunately, the facts bring us back to reality. The disappearance of the cod did not happen because of good faith. It is, rather, the opposite: the resource was completely plundered. Unfortunately, that has come back to bite us.

[Dr. Ted McDorman]

True.

[Dr. Phillip M. Saunders]

One aspect of that, however, that I think is worth commenting on, apart from the fact that it wasn't just the foreign fishing fleets that were involved with the cod, is that there is growing evidence of cooperation among the regional fisheries management organizations. NAFO and the North East Atlantic Fisheries Commission, for example, have engaged in reciprocal enforcement activities through port state enforcement. You read the proceedings of the North East Atlantic Fisheries Commission, and you see some of the same debates coming up, with the worst offenders being those who are outside the treaty regime altogether. They simply haven't become participants.

Not to be entirely negative about it, I think it is important that we've made quite a bit of progress against some of the illegal, unregulated, and unreported fishing through cooperation between regional fisheries management organizations that actually do have the same interest in dealing with the worst offenders. NAFO and NEAFC I think have been leaders in that area to some extent.

[The Chair, Conservative, Rodney Weston]

Thank you very much.

Mr. Stoffer.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Thank you, Mr. Chairman.

Thank you, gentlemen, for appearing today.

Just for the record, I'm a west coaster living on the east coast now.

First of all, sir, you said that all countries have an interest in the fish stocks. I've seen far too many examples of where some countries have raided the stocks and have caught fish they're not supposed to, and they have tried to get away with it, to the point where I'm not sure if they've rehabilitated themselves. Hopefully they have. Hopefully they have understood that the decline of fish stocks is bad not just for them but for the planet. I hope the optimism is there in the future in order to do this, because you're right, without the fish stocks, there's no NAFO; you don't have to worry about anything.

You said you've read the wise men's comments in this regard. Are Mr. Applebaum and company just fundamentally wrong when they mention article 6 of the proposed amendments, where, if Canada requests, there could be NAFO management within our 200-mile limit? From the concerns he has expressed over that, and the other three have expressed, that seems to be the number one point of discretion in their point, plus the two-thirds majority. You're right, there are arguments for and against the two-thirds one. Article 6 seems to be the one that is most contentious. They're arguing that it should technically be removed from the draft in this particular regard. Are they fundamentally wrong, or do they have a point?