Fisheries Committee on Oct. 27th, 2009

[Dr. Ted McDorman]

They fundamentally have a point. Mr. Applebaum is a very good lawyer, and I must say, he had good sense to hire me 30 years ago into the Department of Fisheries and Oceans for a while, so I speak fondly of Bob.

Their points are good ones. Having had this discussion with Mr. Applebaum, it's a question of how we balance it. We balance it differently. Their balance is that this is so critical and the two-thirds vote is so critical that it overwhelms anything else. My posture on the institutional side is that there are concerns. It would be much nicer if that wasn't there.

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

Which wasn't there?

[Dr. Ted McDorman]

Article 6, paragraph 10--“with permission into Canadian waters”. It would be better if it wasn't there. We all understand that. Nevertheless, there's an explanation that's not as troubling, I think, as the one Mr. Applebaum provides. So I take this point to be important. I just happen to disagree not so much with the fundamentals—he's not fundamentally wrong—I just disagree with the balance that comes out at the end of the day.

[Dr. Phillip M. Saunders]

I'm perhaps even less troubled than Mr. McDorman by the clause. I've tried to work through the scenarios in which it would become a real problem, and I find they mostly require an awful lot of steps to take place before something really bad could happen. Because the Canadian government holds complete control, as Professor McDorman pointed out at the Senate, there's a very similar provision in the North-East Atlantic Fisheries Commission treaty, to which the Europeans are subject, so they don't have a problem with it.

I understand their arguments about what might be traded off or some of the testimony that referred to this being used as a club in something like trade negotiations or as a trade-off. But to some extent, under the Law of the Sea Treaty, we are already obligated, in theory, to provide access to surplus fisheries. This is an obligation we can resist in very many ways, and we have done so successfully. It's not that it's a completely new idea, in many ways. The obligation exists in other forms and it hasn't been a problem.

I've also tried to think of a possible usefulness for it that the Canadian side might have wanted. One thing I can see is that Canada did want to push for, as an example, a protected area for fishing habitat that straddled the outer limit. This would provide a way of pressing that point and showing good faith, as we want this area, this habitat, protected outside and we want it protected inside, and we're prepared to make it one measure.

There's an awful lot of speculation involved in making this into a very bad thing, even if it's not something we would have gone looking for.

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

Okay, this will be my last question for you, because he's going to cut me off very soon.

My view of custodial management was always, quite simply, that the nose and tail of the Grand Banks are attached to the continental shelf, and there are always legal arguments whether or not we could ever expand the 200-mile limit to include that. Those are legal arguments that I don't have the capability of arguing properly. However, the “always” point was that we would have fish quotas assured by NAFO, whatever the quota is. When the Portuguese, Spanish, or whoever come in, fish the quota, we would go on board the vessel, monitor the thing, make sure everything is according to what they're supposed to have, and if everything is according to Hoyle, off they go. If not, they're into St. John's for a little discussion. That was more or less my view of custodial management.

The minister has said, and I'm paraphrasing now, that we already have custodial management within the NAFO agreement. That's what she said. Is she correct? Do we have custodial management within NAFO? And is my version of custodial management too simplistic?

You can be brutal. Go ahead.

[Dr. Phillip M. Saunders]

As I said earlier, the difficulty with custodial management is that it's not an actual legal term. It's a political term that was invented at a particular time to justify a position.

I've read the minister's treatment of the current situation, so it's possible to say we've now redefined custodial management to mean NAFO. As I recall the debates over custodial management, when it was first put forward, it was about being, to some extent, the opposite of NAFO.

I do not believe that the current situation is actually a fulfilment of what was described as custodial management by all those who described it in the late 1990s or early 2000s. On the other hand, I don't think that's necessarily a bad thing, because we were never going to get that anyway.

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

Okay, fair enough.

Thank you.

[The Chair, Conservative, Rodney Weston]

Thank you very much.

Mr. Weston.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thanks, Mr. Chair.

Welcome, Dean Saunders and Professor McDorman.

I should warn you that some of the communications equipment isn't that good. I heard that you felt you were on the “wrong damn coast”, and I know you meant “for long you can boast”, isn't that right?

The assumptions I'm hearing that go to your conclusions—and I guess I'm going to direct this to you, Professor McDorman—are five. I just want to go through them, because to me they summarize where we go, and I'd like you to tell me if we've got this right.

The first assumption is that—and I'm trying to quote you or at least paraphrase you—countries have an interest in conservation, including Canada; if there are no fish, then there are no fish to fish. That's number one, basic.

Number two is that regarding both straddling stocks and other stocks, Canada cannot do this alone. One of you said there is a growing amount of cooperation among these fishing management organizations. I think that was Dean Saunders. So we can't do it alone.

Number three is that there's a difference between desirable results and achievable results. You can't simply demand; you have to negotiate. Again that was you, Dean Saunders. So there's a difference between desirable and achievable.

Number four is that it's critical to acknowledge minimal objectives, such as the maintenance of some form of a NAFO treaty. We've made some progress and the leaders seem to be NAFO. One of you said it. So we have to have something there. It's better than nothing.

And then fifth is that being party to a treaty provides mechanisms of mutual reproach: no country wants to be offside of all the others.

With those five assumptions, is that kind of the summary of why we come to where we are in your conclusion; that's why it's better to accept this amended NAFO than the alternatives?

[Dr. Ted McDorman]

Fundamentally, yes. I think the way you've gone through that is much more organized than I would have, so if you ever need a job as a professor somewhere, come and talk to the dean.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

After the next election maybe.

[Dr. Ted McDorman]

Yes.

I think you've hit the nail on the head, in that we do need NAFO. We need something like it, anyway. Regarding the countries, conservation, we can't do it alone. We in Canada have always been caught with what's desirable, what we demand, as opposed to what's negotiable and achievable. We tend to overemphasize our ability at the table a little bit, our position.

And there is progress here. By the standards of other organizations, there's actually been some significant progress made here with the NAFO amendments. It does track what's going on in the other agreements pretty closely. That's sort of where I would come out.

So yes, I think those would be the five that would justify my position.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

And if I can put this in historical context, you were a keynote speaker, in 2005, at the St. John's conference on international fisheries management, “Moving from Words to Action”, which was chaired by Liberal Minister Regan, who was the fisheries minister of the day, and attended by Prime Minister Paul Martin. The conference featured this call to ratify international agreements such as NAFO and urged organizations to implement the rules. We've heard from DFO officials that the amended convention is the culmination of those efforts and accomplishes the objectives that came out of St. John's.

Would you agree that the amended convention lives up to the spirit of that conference, that 2005 conference? Where does this amended convention fit historically in the big picture trends in international fisheries management?

[Dr. Phillip M. Saunders]

Certainly we've been on a trend since before the conference, actually, in trying to revitalize and reform regional fisheries management organizations. The reason, in the historical big-picture perspective, was that the choice had really come down to the same debates we'd had over extending beyond three or twelve miles way back becoming the debates we were having at the limits of 200 miles. I think fishing nations realized that continuing on a completely unregulated path would lead to more aggressive actions by coastal states. On the other hand, coastal states didn't really have a widespread consensus on going that much further for jurisdiction beyond.

What we settled on, in the big picture, as an implementing agreement out of the Law of the Sea Treaty of 1982 was the UN fish stocks agreement of the 1990s. The UN fish stocks agreement provides the overall architecture of the international system and it relies on regional fisheries management organizations at the implementation level for stocks beyond 200 miles and straddling stocks and highly migratory stocks.

What I see as the most productive parts of these amendments are those that try to advance the agenda from the UN fish stocks agreement. I think that's really the broad sweep of it, going right back to our actions in the mid-1990s, potentially.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

I think both of you mentioned that we really have a couple of choices: ratify the amendments and move forward with this new convention; or reject the amendment, return to the old NAFO convention, and try to restart conventions. Or kill it, I guess, is the third choice. Do I have that right?

[Dr. Ted McDorman]

Yes.

I put it out as an option because we sometimes hear that discussed: Why don't we just walk away from NAFO? I don't think there'd be any appetite by any of the major NAFO members to walk away from it, because it would leave a free-for-all there.

I put it out there because that's sometimes seen as one of the other options. You amend it, you start negotiations again leaving NAFO in place, or you can just walk away from NAFO.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

So we're not in a perfect world, but a better one than the imaginable options.

[Dr. Ted McDorman]

Yes. That would be my position on the institutional issues.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you.

[The Chair, Conservative, Rodney Weston]

There are three and a half minutes left.

Mr. Kamp.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

Thank you, Mr. Chair.

Thank you, gentlemen, for appearing. I appreciate your input.

Professor McDorman, I read your testimony before the Senate.

Dean Saunders, I read the policy options document that you wrote for the royal commission in Newfoundland and Labrador and I want to clarify a couple of things that are in there. That document that you wrote, among other things, reviewed a series of policy options for the management of straddling stocks. They included the possibility of a unilateral extension of the EEZ custodial management and renewal reform of NAFO.

I think in the document you said that, far from being a magic silver bullet, custodial management was in fact quite risky and that the most realistic and productive course of action was to reform NAFO.

I wonder if you still think that and if you had a chance to read the testimony of the fisheries minister from Newfoundland and Labrador, who talked to us a little bit about his definition of custodial management and his belief that it's the approach we should have taken in these negotiations.

[Dr. Phillip M. Saunders]

I haven't read his testimony. I've read some of the others.

No, I haven't changed my opinion on the custodial management as it was described in 2002-03. It was risky then, the primary risk being that we'd lose all management options beyond 200 miles and we'd be up against some very powerful interests. Countries like the United States are not fond of that kind of extension of jurisdiction. There was no international consensus behind it--there just wasn't.

The second point I would make is that it's riskier now than it was then, because when I wrote that paper, we hadn't ratified the Convention on the Law of the Sea. We ratified the Convention on the Law of the Sea and we are now subject to a compulsory dispute settlement, which means that we don't have the option we had with the Estai incident of reserving our jurisdiction to the International Court of Justice, for example. We'd be subject to mandatory procedures under the Convention on the Law of the Sea, and we would lose that. So I think it's riskier now than it was then.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

Is it your view, then, that the most realistic objective for the Government of Canada would be to have sustainable management that is equivalent outside the 200 miles as inside that, so that it's equivalent in terms of the sustainability and the outcomes are similar? As this minister has referred to, and the previous minister as well, is that the best outcome within the international legal framework that we could expect to achieve?

[Dr. Phillip M. Saunders]

Given some of our outcomes within 200, I'm not sure I'd want to promote that as the result outside—albeit, in some cases, yes. I think the key is that the best outcome we can hope for in the current international legal framework—which we cannot change on our own—is through regional fisheries management approaches to the stocks beyond 200. It's the only one provided for in current international fisheries law, really.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

Finally, could I ask both of you what is your advice to the Government of Canada? Should we ratify these amendments to the convention?