Fisheries Committee on March 3rd, 2009

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

I guess I should have had my earpiece in.

Did you say that it is not the case?

[David Bevan]

Some are portraying the UNFA boarding provisions as that the Canadian inspectors could board a vessel of another country. That's the case. If there is no response from the flag state of that vessel within 72 hours, the Canadian inspectors can bring the vessel back to a Canadian port. That is also the case.

What is not the case is that the vessel is subject to Canadian courts, Canadian law, etc. What is the case is that the vessel can remain in port until the flag state says it is satisfied it's in compliance, or let it go, or they come and do the inspection. But Canada has no authority to take action against the vessel in port, outside of the authority of the flag state. The flag state is still the body that will have to deal with the non-compliance. I think that's important to keep in mind, because portraying the UNFA as superior to the current NAFO is based on an assumption that something can happen once we have the boat in a Canadian port, and that's not the case.

What happens under NAFO is that they've signed onto NAFO conservation enforcement rules that oblige the flag state to remove the vessel from the NAFO regulatory area under certain conditions, when there's a serious infringement or where there are repeat infringements, and take that vessel back out of the NAFO regulatory area and into a port. That's what happened in 2007 with the serious infringement. That vessel was removed prior to the end of its trip and taken back to a Spanish port, where it was found to be in non-compliance and had serious consequences for the vessel in terms of lost fishing opportunity and significant fines in the range of over 200,000 euros.

Looking at the old convention versus the new on slide nine, the new is a precautionary approach, an ecosystem approach versus single-species management. We're moving in that direction internal to our waters as well, because that's a more sustainable way to manage.

On the governance, we move from a simple open-ended objection procedure with little onus on the objecting party to justify it to an improved objection procedure, where the onus is on the objecting party to demonstrate that the objection will not create a conservation concern and there's an opportunity for the objecting party or NAFO to request an ad hoc panel with short enough timelines that the objections should be resolved prior to any problems in the regulatory area.

Decisions used to be simple majority. They're now two-thirds. The reason we want two-thirds is because we want to make it more difficult for people to change quota keys.

There was no dispute settlement process. Now there is a dispute procedure with an option to submit to a compulsory binding dispute settlement procedure pursuant to UNFA and UNCLOS. So we can move quickly into a binding procedure if that's the way to solve the problem.

We have good faith and abuse-of-rights clauses. The intention is to try to reach consensus and to make decisions that are inclusive and do not create isolated parties. We have this designed in relation to other international agreements. The functioning will be changed to make it more streamlined.

So the governance choices: simple majority consensus decision is the default; more frequent use of votes leading to more frequent decisions that are one-sided versus two-thirds as a last resort and leaving fewer people isolated. Objections: now we have objections with conditions and dispute settlement. Unilateral action was often the result in the old governance model. This is a more inclusive convention, and there's more follow-up to transparency.

Moving ahead, we are going to keep creating the conditions for change multilaterally. The overarching objective is to achieve sustainable fisheries, basing the implementation of fisheries management decisions on scientific council advice. We are looking to address the overfishing in NAFO, and as I said, we have successfully combated the IUU in the North Atlantic. I think we're fairly well situated in the North Pacific relevant to high-seas drift-netting as well. Our problem is that it has now re-situated to Africa and Southeast Asia, and we're looking at measures by which, in the multilateral fora, we can resolve that issue as well. I think I'll leave it at that.

I would note that there was an incident recently. Last week, subsequent to the sinking of the Spanish vessel, another Spanish vessel was boarded by fishery officers from the Cygnus. That was while the Cowley was in port. The Pescaberbes Dos was found with two citations.

Those citations were not serious infringements. However, the Spanish government has decided that the citations were evidence that the vessel was engaged in something in this reporting. They decided, based on the information provided by Canada, to seal the holds and to withdraw the vessel from the NAFO regulatory area. They have invited Canadians to be present when that vessel is inspected in Vigo upon its arrival.

Now, this means that the vessel had to leave with only half a trip--a serious economic blow. It will be inspected. If found to have misreported, it will be subject to significant sanctions by the Spanish government. I think it's just another indication that the compliance in the zone is good. The serious response by the Spanish is indicative of the fact that anybody cheating in that area will have to face the music.

The other thing I would point out is that the effort in the NAFO regulatory area is now down significantly; the Spanish have cut their presence by 87%. The TAC for halibut went down to about 40% of what it once was; the Spanish are now down to 13% of what their presence used to be.

The presence of the vessels in the NAFO regulatory area is now in balance with the fishing opportunities. Cheating is going down because people don't need to cheat. It's estimated that the Spanish vessels fishing out there are making a 17% return on their investment, which in this day and age is a dream world for almost anybody. The need to cheat has been removed. The opportunity to cheat has been removed. They fill their boats up legally now. That drop in effort has been a significant gain for rebuilding stocks in the NAFO area.

Just one last point I would make is that it's not just on the water with respect to compliance; it's also in the water with respect to the fish. Yellowtail flounder has rebounded fully. American plaice is on the right trajectory. The 3M cod amount was over the conservation limit to allow a fishery to open. NAFO decided not to do that. They want to let it grow bigger before they start to reopen that fishery.

It's the same thing for 3M redfish--over the limit. Science advice was that it could have been a 3,500-tonne fishery. NAFO declined that, and is letting that rebuild. For 3LNO redfish, same thing.

Those are significant changes from behaviour of the past. NAFO is actually declining fishing opportunities in an attempt to allow a better rebuilding of those stocks. We're seeing quite a change in the behaviour of the organization.

Thank you.

[The Vice-Chair, Liberal, Lawrence MacAulay]

Thank you, Mr. Bevan.

It's obvious that we're a little over time. We have to end this meeting at about 12:45 for some committee business. Then we have the liaison budgetary committee, which I have to attend in order to find out what we're doing down the road.

So we'll stick close to the time, and we'll start with Mr. Byrne.

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

Thanks, Mr. Chair. You've left us no choice but to ask swift questions and expect swift answers.

Thank you to the witnesses.

Under the revised NAFO convention, the decisions are still non-binding--or that's what I understand, despite the assertions that have been presented here--in that after the arbitration procedure, contracting parties can still object and implement unilateral fishing plans.

Is that true or false? A quick answer, please, Mr. Bevan.

[David Bevan]

If they go to the UNFA binding arbitration, they are obliged to follow that decision.

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

They cannot object? They cannot institute--

[David Bevan]

After that process, after they go to UNFA, they can't object.

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

Okay. So in other words, the government's assertion that it has now instituted custodial management is a fraud. That's a false statement, because contracting parties still have a genuine legal opportunity to enact unilateral fishing practices under current and proposed circumstances.

Now, Mr. Bevan, you've suggested here this morning--it's sort of counterintuitive--that the former NAFO convention was broken and didn't work. Yet in your closing statements you said that fishing practices are changing dramatically without the proposed convention, the redraft, being in place. Can you explain that?

[David Bevan]

That's because we've agreed as a body to behave as if the new convention was already in place. We've agreed to have decision by consensus. We've agreed to implement things such as ecosystem-based management and protection of vulnerable ecosystems, even though it's not covered by the convention. So we've determined that's a better way to proceed. We're acting as if the convention's in place and the results are positive.

On the objection procedure, yes, somebody can object under the new convention. There is, however, the dispute settlement, and the dispute settlement can lead to going to UNFA. And if it goes to UNFA, and the arbitration under UNFA decides on an outcome, that is binding on the parties.

You'll no doubt hear from other witnesses that by interpreting the minutia in the law you might be able to find a loophole. Having said that, that is not consistent with the obligations under UNFA to cooperate. It's not consistent with the way the organization has been operating, so looking at what is potentially or theoretically possible versus what's happening is the key.

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

I don't think anyone sitting at this table who's followed fisheries management would consider minutia as being immaterial to the actions of foreign flag contracting parties when it comes to certain practices in the regulatory area, especially outside of 200 miles.

Notwithstanding all of that, we have an agreement here that there is an objection procedure that does indeed allow contracting parties and other flag states to actually fish unilaterally, with their own plans. I've come to the conclusion, as a result, that the statement of the government that they have now enacted custodial management is a false statement.

Notwithstanding all of that, there's nothing in this NAFO convention, the current convention, that allows any NAFO intrusion into Canadian waters. Yet it is proposed in the new NAFO convention to allow international management inside of 200 miles--NAFO control of the area inside Canada's exclusive economic zone. Agreed, this has to occur with the consent of the coastal state. NAFO could gain control of the entire regulatory area right up into the Gulf of St. Lawrence.

Why would Canadian negotiators allow such provisions to be included without a reasonable quid pro quo of Canada being able to assume full management authority of the area outside of the Canadian exclusive economic zone--in other words, into the current NAFO-regulated area outside of Canadian jurisdiction?

This provision is conspicuously absent from the draft convention. Is that because it was a European rapporteur who was holding the pen to the draft convention? Because it certainly wasn't a Canadian. It just seems to me that for Canada to agree to that particular provision, however ridiculous it is, for Canada not to insist that this same provision be put in place for the coastal state to actually have an opportunity to gain control of the regulatory area outside of the exclusive economic zone is a huge failure on the part of the Canadian negotiators.

[David Bevan]

First off, I must point out on the objection procedure that there is a dispute settlement process now, or would be under the new convention, that doesn't exist under the 1978 convention. So that's the significant difference.

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

But it still has an opt-out, which is the point.

[David Bevan]

The opt-out is only if people are going to look at the most obstructive way to interpret the convention and to behave in a way that's inconsistent with their obligations under current international law.

While you can say that there's a potential there, the reality is that this would be a significant departure from current practices and current expectations. Also, they have to sell their fish somewhere, and the provisions that are being implemented are going to make selling fish that are coming out of those kinds of actions much more difficult.

With respect to the new convention, clearly any decision that's reached by NAFO applies in the NAFO regulatory area. Canada is a party to those decisions, and while there could be a decision reached by vote, if we are reaching a consensus decision, as we have been for the last number of years, then Canada is a part of that and is influencing the outcome of those decisions that apply to all the parties fishing in the NAFO regulatory area.

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

Could we get to the specific issue of NAFO control, of international management inside of Canada's exclusive economic zone and the point that I have made, which is clearly written into the draft convention? The thing that's missing from the draft convention, which Canada is about to ratify, or presumably about to ratify, is the provision to allow Canada to control outside of the exclusive economic zone and the rest of the NAFO regulatory area.

[David Bevan]

In a sense, that already's in there, because if you look at--

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

In a sense? One specific provision--

[David Bevan]

Here's the issue. In the application inside the zone, it would have to be at our request and with our agreement. We would have to want it, ask for it, and vote yes to it.

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

So why would we do that outside? As a quid pro quo--

[David Bevan]

Are you suggesting that Canada would try to write into an international treaty the right to unilaterally impose anything we want on people outside the 200-mile limit, on the high seas?

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

Mr. Bevan, that's what your negotiators did to Canada.

[David Bevan]

No, we didn't. That's not what we did.

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

It is written into the convention that NAFO, on the consent of Canada, has the right to impose not only unilateral enforcement but management inside of the exclusive economic zone, right into the Gulf of St. Lawrence around P.E.I.

[David Bevan]

I absolutely--

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

Why didn't we put it as a quid pro quo that Canada, at the consent of NAFO, at the very least could control outside of 200 miles?

[David Bevan]

It already exists.