Thanks for the opportunity to present to you on a topic of great importance--the management of the fishery outside of Canada's exclusive economic zone.
When I served as deputy minister of fisheries and aquaculture for the Province of Newfoundland and Labrador, this was a major concern of the government. The province was extensively involved in Law of the Sea discussions and in presenting evidence nationally on the heavy toll exacted by the collapse of the fishery, largely due to foreign overfishing by both NAFO member fleets and vessels fishing under flags of convenience. It was during my term as deputy minister that the concept of custodial management was advanced.
I'm trained as an economist and I hold graduate degrees from the University of Toronto and Princeton University. I've taught at three universities. My career as a policy adviser to government includes close to 30 years as a deputy minister in the Government of Newfoundland and Labrador, including clerk of the executive council, deputy minister of fisheries and aquaculture, president of the Institute of Fisheries and Marine Technology, and chair of a regulatory board, namely the Public Utilities Commission. I've worked as a non-partisan and professional public servant, having served four premiers.
While Canada does establish the TAC for northern cod, we remain only one of 12 contracting parties, and have at best only one-twelfth of the governance. Canada bears 100% of the pain when NAFO does not work, and 90% of that pain strikes directly at the heart of Newfoundland and Labrador.
Only in theory do we have one-twelfth of the governance. The objection procedure can be used and has been used to usurp the collective management decisions of NAFO. However, it has to be understood that contracting parties don't always invoke the objection procedure before ignoring national allocations and fishing well beyond their allocations. They can and have simply overfished without seeking permission in advance.
There are three major issues from the new convention, to which I will refer. The first is the provision for dispute settlement. The procedure for settlement and dealing with objections filed under the convention is protracted and does not allow for settlement during the fishing season. There's no provision to prevent re-filing the objection once an arbitration ruling has been rendered.
Once overruled, the objection may be re-filed, thereby triggering re-enactment of the laborious dispute settlement procedure. In the meantime, the objecting state continues to fish. If a contracting party does not follow this procedure and fishes in excess of its assigned quota, the dispute settlement process does not get triggered until after the damage is done. I would expect fewer objections to be filed under the new convention.
The second issue relates to the provision for NAFO management within the extended exclusive economic zone. Paragraph 10 of the proposed amendments to article VI reads as follows:
The Commission may adopt measures on matters set out in paragraphs 8 and 9 concerning an area under national jurisdiction of a Contracting Party, provided that the coastal State in question so requests and the measure receives its affirmative vote.
I can see no circumstances in which this should ever be contemplated. I have heard no convincing case in support of this amendment, nor do I think it's practical to neuter this provision by requiring that the Minister of Fisheries and Oceans seek the concurrence of affected provinces before extending the invitation to NAFO.
This provision was added without much fanfare in the dark of night, as it were. It reflects a mindset that the management regime established by NAFO and the regulatory areas should be imposed within the EEZ to ensure consistency inside the zone. NAFO should instead ensure consistency by applying management principles outside the zone similar to those adopted by Canada within the economic zone.
I turn now to the decision-making rule, which has been changed from 50% plus one to a two-thirds majority. Over two years ago, on July 26, 2007, I wrote a letter to DFO Minister Loyola Hearn. I quote in part from that letter on the subject of the voting rule. This letter was written the day after a public meeting on the NAFO convention held at the Marine Institute of Memorial University, at which Bob Applebaum was the keynote speaker. That was July 25, 2007.
What I said in the letter was that:
Those who view NAFO as a strong and effective regulator of fisheries may be comforted by the imposition of a stronger threshold for approval. Those who question the effectiveness of NAFO will be alarmed to find that the approval of stronger conservation and enforcement measures will now be more difficult. Most of the people in Applebaum's audience at the Marine Institute last night, including the undersigned, fall in the latter camp and are alarmed at what has happened, because our perception is that NAFO is far from being an exemplar of strong management, conservation and enforcement.
The Government of Canada committed in its election platform to implement custodial management, which reflects a major reform of the governance of the regulatory area and that of the regional fisheries management organization. This new convention is a move away from custodial management, not toward it. Canada's attempts to reform NAFO have been ongoing for a long time, preceding my term as deputy minister of fisheries and aquaculture for the province. Progress has been painfully slow. In the meantime, the Province of Newfoundland and Labrador has paid a big price. The damage inflicted on our groundfish resources, including cod, flatfish, turbot, and redfish, has been enormous.
There was a tendency to downplay the importance of groundfish and the effort being directed to straddling stocks. Compared with prior experience, the level of fishing effort is perceived to be relatively small. The number of ships on the Grand Banks is down sharply from what it was. Does that mean we have solved the problem? Does it mean the stage has now been set for the recovery to take place? No. It means there is nothing left to catch—and there never will be if we perpetuate the existing system of governance outside of 200 miles. Dramatic changes are essential, rather than tinkering to fix something that is beyond repair.
Canada's position is different from that of most countries who host highly migratory or straddling stocks. Our shelf extends beyond 200 miles and includes important seasonal concentrations of mature and juvenile fish. For most countries who signed the Law of the Sea Convention, the 200-mile limit fully encloses their continental shelf and the species that live on the shelf.
The other difference is that we operate in a non-reciprocal environment. What I mean by that is the 11 other contracting parties fish in our waters; we do not fish in theirs. Their fish stocks do not migrate into our waters. We do not fish in the waters of Russia, Cuba, Japan, or Iceland. Generally speaking, other regional fisheries management organizations deal with reciprocal fishing activity.
Moreover, the governance structure of NAFO does not reflect the fact that the non-reciprocal benefits and costs of the organization are not equitably distributed. The cost of management failure to Canada is disproportionately high and is not reflected in the governance structure of NAFO.
I am not convinced that the new convention is a step forward. The net benefit is ambivalent at best and outright dangerous in the worst case. Taken as a package, Canada would be well-advised not only to reject the new convention but also to lodge an objection against it.
I want to conclude by congratulating the four retired executives who have spoken out on this major public policy issue. As someone who has served as a deputy minister for close to 30 years, I understand the culture of our society is that public servants should be seen and not heard, that they should be eunuchs. However, there are times when public servants must speak truth to power when they are in active service, and sometimes even when they are retired. When they speak truth to power, they have to be prepared to put their jobs and reputations on the line.
Good fishery policy requires input from a wide spectrum of society, and not just from those who have a vested interest. In our fishery in Canada, the regulators and the regulated are closely intertwined in a complex web that mitigates transparency and discourages public input. As a former regulator in both the fishery and energy sectors, I can tell you that the best practice in contemporary public administration for regulatory agencies is for an arm's-length relationship between the regulator and the industry regulated.
My advice is that this committee carefully weigh the evidence coming before it and assign appropriate weight to the evidence heard from parties who have a direct interest, compared with evidence given from knowledgeable parties who are at arm's length and can provide a more dispassionate perspective. So-called armchair quarterbacks can offer useful and independent advice because of the fact that they have nothing to gain from it.
I thank you for your invitation to speak on this important topic. I would be happy to answer any questions you may have.
Thank you very much.