Fisheries Committee on Nov. 3rd, 2009

[The Chair, Conservative, Rodney Weston]

I call this meeting to order.

Mr. Wiseman, welcome this afternoon. I appreciate your taking time out of your schedule to come and appear before our committee this afternoon.

We have just a few housekeeping items before we start. We are constrained by some timeframes here. Generally, as I'm sure the clerk has probably already made you aware, we allow about 10 minutes for presentations by our guests, and then we have some pretty close timeframes for our members to ask questions and receive answers. I would ask that when you hear the beeper, you start moving toward the conclusion of your remarks.

We look forward to hearing from you, Mr. Wiseman. Thank you very much once again for appearing. The floor is now yours.

[Earl Wiseman, As an Individual]

Thank you very much, Mr. Chairman. Good afternoon, committee.

I worked at DFO in the international relations field for more than 23 years, 15 of which were at the senior executive level. I also spent more than three years in Brussels in the early 1990s as the Canadian fisheries counsellor to the European Union. I retired as director general of international affairs in mid-2002. I'm one of four retired DFO executives who tried to assist the government in its efforts to improve the NAFO Convention.

I've asked the clerk to circulate two documents to the committee for its consideration. One is a letter my colleagues and I sent to the Prime Minister on September 20, reinforcing Premier Williams' position in his September 11 letter to the Prime Minister raising Newfoundland and Labrador's concerns about the amendments to the NAFO Convention. Attached to our letter is a point-by-point commentary on the misleading press release issued by Minister Shea upon receipt of the Premier's letter to the Prime Minister. The second document is a copy of the text published as a letter, signed by the four of us, to the editor of the St. John's Telegram on October 24, 2009, responding to a second press release issued by the minister after appearance before the Standing Committee on Fisheries and Oceans.

In our letter to the Prime Minister, we explained that we had been drawn into a public debate with the government when we originally wished only to contribute privately to improving Canada's future position in conserving and ensuring sustainable use of the fisheries resources in the northwest Atlantic. We agree that the existing NAFO Convention is out of date and should be amended to strengthen its positions, to make the organization more effective in achieving its conservation objectives, and to reflect current international law. However, we believe the current amendments fall far short in that respect, while creating substantial new problems that will in fact weaken the organization and also undermine Canada's ability to maintain sole control over fisheries management in Canada's 200-mile zone.

Our comments have been misconstrued, perhaps purposely, by the former minister and continue to be minimized by the current minister. We wish to help set the record straight by commenting on the statement issued by Minister Shea, and we have done so in the attachment to our letter to the Prime Minister and our letter to The Telegram. I will be pleased to respond to any questions the committee may have in regard to these points.

Our bottom line is that the amendments are fatally flawed. Further, in the long run, they will not only weaken Canada's position in NAFO but more importantly Canada's position in any future arbitration or any future reference to the Law of the Sea tribunal. They must not be ratified.

Before I conclude, I want to comment on some of the oversimplified defences that have been presented to justify ratification of these amendments. One is the sort of statement that everybody is doing it, so why shouldn't we. Witnesses before Parliament have claimed that paragraph 10 of article VI of the NAFO amendments, which provides for possible NAFO management and control inside the Canadian zone, has been adopted elsewhere. Other coastal states have accepted them, so why shouldn't we? The evidence presented further referred to two regional fisheries management organizations where this has occurred.

The new NAFO clause comes from the revised Northeast Atlantic Fisheries Convention. This agreement involves only coastal states whose fish stocks are found in the Northeast Atlantic Fisheries Convention regulatory area. There are no distant water fishing states as there are in NAFO. Some of these stocks of the northeast Atlantic—herring, mackerel, blue whiting—migrate through the waters of several coastal states and the high seas. These coastal states—all of whom, by the way, are also members of NAFO—have determined that they require greater cooperation in the management of these complex, mixed, transboundary fish stocks. The dynamics of negotiations in NEAF are accordingly very different from those in NAFO.

In the NAFO context, the straddling stocks on the nose and tail of the Grand Banks only involve one coastal state: Canada. While it's accurate to say that the U.S., France for Saint-Pierre and Miquelon, and Denmark for Greenland are also coastal states in the NAFO Convention area, Canada has straddling stocks fished in the NAFO regulatory area on the nose and tail of the Grand Banks. Canada is the coastal state of NAFO and the current convention reflects that. The amended convention weakens this position.

The second treaty that such a clause was purported to be in is in the western and central Pacific. This convention regards highly migratory species—tunas—which under UNCLOS are treated with a distinctly different management regime than that approaching straddling stocks.

Why are we doomed to repeat our history? Why do we have this clause, and why is it so important to the European Union? One has to understand the mindset of the European Union and its history in the NAFO regulatory area. The European Union has long believed that Canada controls NAFO. It does not like losing votes. To some extent, their concerns were valid as the NAFO Convention was drafted to make it clear that Canada was the primary coastal state. Further, Canada was a prime mover in the adoption of the 1995 United Nations Fish Agreements, UNFA, which reinforced Canadian positions and strengthened international law in regard to enforcement on the high seas.

The EU resisted several of the key clauses of UNFA that Canada had fought to adopt. In order to appease European stakeholders, the EU developed a strategy to implement UNFA in line with its original objectives. This can be clearly seen in a report submitted to the European Parliament fisheries committee on April 26, 1996. I don't think many people in DFO know anything about what happened back then. The chair of that committee, Miguel Arias, made the following comment on the effects of UNFA in NAFO:

Another ambiguity within the agreement which could affect NAFO is the one concerning the principle of biological unity which the agreement advocates as a main basis. Thus the agreement establishes the requirement for any given population to be regarded as one throughout the zone in which it is found, with no distinction made between the EEZ and adjacent waters. It also establishes the requirement to cooperate for the purposes of stock conservation. From this we may conclude that countries which fish in open waters should be involved in fisheries and conservation management not just outside the EEZs of the coastal states but also within those waters, since the cooperation requirement expressly imposed by the agreement would be meaningless if countries fishing in open waters could only participate in the allocation and distribution of TACs relating solely to open waters.

In the negotiation of the new NAFO amendments, the EU has succeeded in helping to clarify his ambiguity to Canada's detriment.

This is not what UNFA says, nor does it reflect customary international law and UNCLOS. Coastal state sovereignty provides for the state's exclusive use in management of the stocks within its 200-mile zone. Why is Canada choosing to water down this right in the NAFO amendments? By linking the language of ecosystem approach to the modified language in other amendments and this sovereignty clause, the EU can claim that by its ratification, NAFO members accept that the new convention reflects the view that distant water fishing states now have an almost shared responsibility for the management of straddling stocks. In fact, the EU would claim that Canada must now act consistently with NAFO decisions and that Canada no longer controls NAFO.

Is this not custodial management inside 200 miles? By accepting these amendments, Canada might also fetter its rights before any future international tribunal.

Why is a crucial aspect of UNFA also ignored? Virtually all the UNFA enforcement provisions are in NAFO, except for one. Canada succeeded in achieving major concessions at the conclusion of the UNFA meetings. Why is the government now watering down these successes and refusing to implement the control provisions of UNFA? If Canada was serious about updating NAFO to reflect UNFA, why is this government ignoring one of the most significant aspects of UNFA? UNFA enforcement provisions allow Canada to order to port a vessel found to have committed a serious infringement if the flag state fails to respond adequately.

The EU is likely to argue that since the NAFO amendments were agreed post-UNFA and were intended to implement that agreement, they replace the UNFA provisions pertaining to high seas seizure and detention and it would therefore not be possible to implement them in UNFA. These amendments are just giving away what was so hard won over many years.

This is also reflected in the 1996 report. It called on the European Commission to review its political action in order to secure “lasting support from other countries...and draw up...a joint strategy within NAFO”. These NAFO amendments reflect that strategy.

Finally, one other quote from the European Parliament report may throw a little more light on the current situation. When the NAFO Convention was finalized, Spain did not join, as it “considered that the new agreement gave Canada preeminence over the other fisheries”. These clauses in the NAFO Convention, which so concerned Spain, have now been watered down in the amendments. No wonder the EU is so pleased with the amendments.

If I can make just one last point, Mr. Chair, some have claimed that it would be too embarrassing or too costly for us not to ratify this agreement and to go back and reopen negotiations. I ask why it is so embarrassing. What is the purpose of a ratification process? Why does that step exist in a negotiation of an agreement? It's simply to provide the government with the opportunity to carefully weigh the pros and cons of an agreement and to decide, in the end, how it wishes to proceed.

In the past, states have sought to return to the table following this secondary review. On fisheries issues, for example, the EU sought changes in at least two fisheries agreements with Canada during the ratification process after its internal consultations led to a desire for changes. The U.S., on several occasions, has gone back to the negotiation table after Congress has indicated that it would not concur with the results of the proposed agreement. Parties have returned to the table and agreements have subsequently been finalized. This is not earth-shattering. There is no need for Canada to feel in any way embarrassed or constrained to not ratify this agreement.

Finally, other NAFO-contracting parties, I think, wouldn't be surprised if Canada didn't ratify and it objected on the grounds of the current language of the convention. Some even wonder why we didn't act earlier.

Thank you.

[The Chair, Conservative, Rodney Weston]

Thank you, Mr. Wiseman.

We'll start with Mr. Byrne.

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

Thank you, Mr. Chair. Thank you, Mr. Wiseman.

You've given us some interesting details to contemplate, but you did indeed proactively answer a number of questions that may have been lingering in some people's minds.

Let's just do a couple of housekeeping items for the purpose of eliminating them as issues. In addition to serving various fisheries ministers who might have been members of a Liberal government, you also, I understand, served fisheries ministers Tom Siddon, Valcourt, Crosbie, and others. Did you receive promotions in your position during that time in office? Would you be able to answer?

The bottom line is whether you had the respect and the ear of various ministers, both Conservative and Liberal, over the tenure of your career.

[Earl Wiseman]

I did, and in fact I worked very closely with Minister Crosbie. I recall very well Minister Crosbie's view that he was the minister for the fish. Someone had to stand up to protect and conserve the fish. I find this current agreement to be for the fishing industry so it can maximize profits early. It's not for the conservation of fish.

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

Thank you.

You provided our committee with some new information and an analysis of the Northeast Atlantic Fisheries Commission. You made an important clarification, a differentiation between it and the Northwest Atlantic Fisheries Organization.

You said, and I'll paraphrase, that basically, in the northwest, in NAFO, France in respect of Saint-Pierre and Miquelon and Denmark in respect of Greenland.... Canada is a major coastal state and NAFO is made up of distant water fishing fleets. In the northeast, just about all members are coastal states. Does that imply a bit of a détente? It's a different circumstance when you're in the northeast. If you demand a measure in the northeast, you know that it's going to come back at you, because you, too, are a coastal state. Is that a fair assessment of the circumstance there?

[Earl Wiseman]

It's even more specific than that.

First of all, many of the fish stocks in the northeast Atlantic swim through the coastal state waters of more than one coastal state. They may swim through the waters of Norway, Iceland, and on the high seas, for example. So you have two coastal states involved and the high seas, while all the other parties would be fishing them. Some stocks may go through most of the members' waters. So it is a very different dynamic, a much more complex dynamic, and a bit like it is with the highly migratory species. That's why UNCLOS is different, as all of the states have to cooperate in a different way to be able to manage this.

In the case of NAFO, as I mentioned, yes, the United States, France, and Denmark are coastal states in the convention, but for the straddling stocks on the nose and tail of the Grand Banks, they are not coastal states. As a matter of fact, the U.S. and France have no straddling stocks at all. Denmark has one potential straddling stock. It's actually a stock that starts in the northeast Atlantic and goes through Norwegian waters, Icelandic waters, Greenland waters, the NAFO regulatory area, and Canada. That's the only stock where Greenland can claim any coastal state rights, but so can Iceland and Norway on the same stock. So it is a very different situation under NAFO.

Canada was recognized by all in the first NAFO Convention, when it was drafted by Canadians. With Canadians taking the pen, it was made clear that Canada was the coastal state. This new agreement has watered that down.

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

Speaking of taking the pen, we've heard testimony from other witnesses about the impact of the rapporteur, the person who holds the pen. From your 23 years of experience dealing with international fisheries policy and management, do you find it strange that the European Union was actually the rapporteur, the holder of the pen, during the drafting of this particular treaty?

Canada is the depository of NAFO documents. The headquarters of NAFO is in Canada, in Dartmouth, Nova Scotia. We actually provide the lion's share of funding for NAFO. Why did the European Union end up with the pen to draft these? And what's the consequence of holding the pen?

[Earl Wiseman]

I don't find it surprising; that's always been the European Union's objective. What I do find surprising is why we let them.

The consequence is that the person who is the chair and has the pen produces the chairman's report—produces the report on a discussion—and they can put in, modify, or spin whatever they as chair wish to do. Then it's up to others who may not like what's in there to fight to get it out. That's what I think we had to face.

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

Can we talk a little bit about the two-thirds majority, which some have described as providing greater inclusivity to the decision-making process? We've heard contrary testimony to that as well. In fact, there's been some very negative testimony that it might be okay for maintaining share structures, but there's a big question, which I think is the most important question for conservation: what happens when stocks start to decline and then eager, ambitious, and commercially driven interests start wanting either to prevent that or to insert themselves in order to maintain the existing quota structures, in other words, to maintain those shares? Can you describe the implications of that for the committee?

[Earl Wiseman]

I think you partially answered it. When parties don't want the stocks to go down, they're going to resist the conservation measures that would be put in place to protect those stocks. If you require more parties to vote for the conservation measures, you're going to have a greater difficulty achieving those measures.

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

On the issue of dispute resolution, we've heard testimony that these mechanisms are binding. The implication has been that an objection procedure is no longer part of the NAFO process. I don't necessarily believe that to be true.

Can you describe to us the process by which countries can object now and what the consequences are? And what can contracting parties do post-ratification of this? Is there a timely way to resolve disputes within an ecological cycle—in other words, within the calendar year—within weeks of the actual NAFO decision being made to prevent over-harvesting of the stocks?

[Earl Wiseman]

It's a good point, because there are actually two sections of the NAFO amendments, sections 14 and 15. Section 14 deals with the objection procedures. It sets up a panel to review objections. Section 15 deals with dispute settlement. Section 15 reflects or basically refers what already exists under customary international law. You can send a dispute to the Law of the Sea tribunal under UNFA or the Law of the Sea.

We could do that now. We could have done it five years ago. It's there. So all of that binding aspect has always been there, and it's there whether it's in NAFO or not.

The objection procedure is not binding in any way at all. All it does is set up a panel to review. The panel reports. A two-thirds vote is required to adopt any new measure if there's a change, and if the party that originally objected doesn't like the new decision, it can object again and the whole thing starts over. In the process, you just run out the clock, and the year is quickly over before anything happens. Then parties have to decide whether they want to bring it to article 15 and actually make it a binding dispute settlement process by bringing it to an international tribunal. That takes years and costs millions of dollars.

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

Let's be clear here. NAFO makes an annual decision. You're saying a resolution of an objection takes years, but months later a new decision will be rendered.

Say, for example, Iceland wants to fish more than what NAFO has allocated to them of Flemish Cap shrimp. They'd never do that, but say they wanted...they're under objection right now. But say, for example, Iceland were to object to their quota of 3M shrimp. They file an objection in 2010. The objection procedure would roll out. The litigation procedure would probably take--if this is what you're saying--about two, three, or four years to finally work its way through the system.

But the bottom line here, Mr. Wiseman, and what I need to know, is, can they file the objection procedure again in 2011 as if the thing never happened?

[Earl Wiseman]

The objection procedure wouldn't last two, three, or four years. That would be a dispute settlement process, a separate one. If they objected in October or November when they have the first chance to do it, then there's a 60-day waiting period. A whole bunch of steps are built in. You could probably have a first panel review it and come back with some sort of recommendation to the Fisheries Commission maybe mid-year. There is nothing in there that says how quickly the Fisheries Commission has to deal with it. They can defer it. They can have additional meetings. By the time they come up with a decision there is a further period to object and then a further period to wait. So they can run out the clock for a year. By the end of that year, it's irrelevant whether anybody says anything because the fish would already be gone. In the next year the process just starts over. If they choose to object, the same thing could happen.

One would hope that doesn't happen, but in the past we have had situations where year after year there were objections regardless of the discussions. There was a full discussion. Everybody knew the reasons for the objections; everybody knew why. The one party that objected simply refused to change its position. And there's nothing to change anybody's position in the new agreement.

[The Chair, Conservative, Rodney Weston]

Thank you, Mr. Wiseman.

Monsieur Blais.

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

Thank you very much, Mr. Chairman.

Welcome, Mr. Wiseman.

I would have two questions, but that obviously depends on the time at my disposal, and the clock is running.

My first question concerns the letter you co-signed on September 20, 2009, in which you mention that if we ratify the convention as negotiated, Canada's position within NAFO will be diminished or less effective. You mention something very specific and I would like to go into that in greater detail.

Worse still, you say: “[...] will not only weaken Canada's position in NAFO but more importantly Canada's position in any future arbitration or in any future reference to the Law of the Sea Tribunal”. I would invite you to be as precise as possible in giving me examples of what might occur.

[Earl Wiseman]

This can get a little technical. I'll try not to get too technical.

We have been asking for three years for the government to do a thorough clause-by-clause analysis of the NAFO Convention, the new amendment, to see where the subtle little changes have come in. There are a lot of subtle word changes in there. There are changes where, for example, there were obligations on the members of NAFO in making allocations and decisions to give a priority to Canada. Now the obligation is on the Fisheries Commission, but there's no legal obligation on any of the members to do anything. In the past convention and existing conventions there were obligations on each individual contracting party. By putting the obligation on the commission, if any party doesn't support the Canadian allocation position, they're not acting contrary to the convention. This time they would be acting contrary to the convention. That's one that significantly diminishes the convention.

Making us vulnerable in arbitration.... I mentioned one in our presentation. If we chose to use our UNFA rights to seize and detain a vessel fishing on the high seas that has committed a serious infringement in NAFO without the flag states approval, because we deem the flag state has not acted appropriately in responding to that serious infringement, under UNFA we could do that. Now with the new convention, the EU is likely to argue, no, you signed this convention after UNFA. The purpose of the convention was to implement UNFA, and because this clause wasn't in it we obviously agreed this clause no longer applies. So you can't use that clause any more.

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

You therefore are of the opinion that even with the present treaty, the status quo is less dangerous, in the medium or long term, than what we presently have before us. This is why you are telling us to be very careful before accepting the negotiated treaty, or the agreement or amendment as presented.

At the same time, you are telling us that the status quo is not very good. However, you prefer to live with the status quo for a few more years, even if it is perfectible—it is to be improved upon—than to have the new convention.

[Earl Wiseman]

The status quo isn't perfect.

As we said in our letter to the Prime Minister, we think the agreement should be renegotiated. We think it needs significant amendments. It's long been identified that the major problems were the objection procedure, and there was a need for a binding dispute settlement and a need for real enforcement out there where we could take action on the high seas when appropriate. We failed to meet any of those. Those were, I would say, Canada's primary objectives. When my colleagues and I got involved in this we had hoped to work with the government to try to help them achieve those. The door was slammed in our faces. Nobody wanted to talk to us. We were denied meetings. We went another route going public with our concerns.

The NAFO Convention can still be amended. It can still be strengthened. But the current amendments don't really offer much. The aspects that are touted and the improvements to precautionary approach and ecosystems approach, NAFO has been applying for 10 years. It didn't require a convention change, and the convention doesn't make any obligations to use it anyway. It's just there. The dispute settlement process is the UNFA process, which has always been there.

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

The clock is running, and I would not like to be interrupted.

Another question has come to my mind. The only premier you have met with is Premier Williams, and you have heard feedback from this meeting.

Have you attempted to meet with the other provincial premiers? If so, what feedback have you received with regard to the possibility of such meetings or discussions?

[Earl Wiseman]

Our meeting with Premier Williams was at his request. We have not sought meetings with any other premiers or any other government.

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

You therefore have made no attempt to meet with the premiers of other provinces?

[Earl Wiseman]

The letter we sent to the Prime Minister was copied to all of the provincial premiers in Atlantic Canada.

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

You are recognizing that it is complete silence everywhere else? What do you think of this silence? Is it indifference or something else?