Evidence of meeting #7 for Fisheries and Oceans in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was negotiations.
A recording is available from Parliament.
Liberal
The Vice-Chair Liberal Lawrence MacAulay
Gentlemen, we'll call this meeting to order.
We welcome Mr. Parsons and Mr. Applebaum.
I'm not trying to rush you, sir. Please take the time to get your documents in order. I would expect you would have a presentation to put before the committee and then take questions, which would be very helpful.
Mr. Parsons, are you going to start? Thank you very much. The floor is yours.
Scott Parsons As an Individual
Mr. Applebaum and I would like to thank you, Mr. Chairman and honourable members, for inviting us to appear before this committee to speak on this very important topic of the proposed amendments to the NAFO convention.
Mr. Applebaum and I, along with two other former DFO executives, Mr. Rowat and Mr. Wiseman, who are unable to be with us today, have previously--in 2007 and part of 2008--drawn public attention to these proposed amendments, because in our view they threaten to undermine Canadian sovereignty and Canadian efforts for the conservation of fish stocks off Canada's east coast.
NAFO, as I'm sure you've heard from previous testimony, was set up in the post-extension area 30 years ago to try to control foreign fisheries outside Canada's new 200-mile fishery zone--new at that time. Unfortunately, there were a hell of a lot of problems over the years. You've heard about that, and in fact the committee did studies on that issue back in the early part of the 2000s. Unfortunately, foreign fisheries have, over the succeeding years, depleted most of the transboundary and straddling stocks, and they pose enormous problems. Of course, as we all know, having watched media coverage over the years, there have been significant violations and enforcement issues pertaining to NAFO and the foreign vessels fishing off the east coast.
For some time there was discussion and debate about the need to do something different, the need to reform NAFO in particular, or to replace NAFO. In 2005 there was a special task force, led by Dr. Arthur May, former president of Memorial University, who looked into the straddling stocks issue. I had the opportunity and privilege to undertake a study for that task force, an evaluation of NAFO and its effectiveness. That report formed part of the basis for the recommendations that the task force produced.
Subsequent to that, in 2006, this became an issue during the federal election when the Conservative Party, and in particular the former Minister of Fisheries and Oceans, Mr. Loyola Hearn, promised a form of extended jurisdiction to address the problem of foreign overfishing beyond the Canadian zone. This was an idea that had been tossed around by various people for a number of years, but I think it was perhaps the first time it had crystallized in a specific commitment, and the commitment was to:
...extend the 200-mile limit to the edge of the Continental Shelf, the Nose and Tail of the Grand Banks, and the Flemish Cap in the North Atlantic, and be prepared to exercise Canadian custodial management over this area.
That was a bold promise and one that lots of people had been suggesting and encouraging for years, but in hindsight it appears that the party at that time--before it became the government--was perhaps not fully aware in making this promise of the difficulties of actually achieving that, of extending jurisdiction under international law.
Once in office, who knows what the bureaucrats told them about the difficulties. I don't. In any event, they changed direction and decided instead to pursue this initiative, called NAFO reform, to reform NAFO and improve it.
Suggestions about attempting to change NAFO, to strengthen the organization, to improve it, had started out in the task force I mentioned, in 2005. However, the subsequent negotiations, spearheaded by Mr. Hearn and conducted by Mr. Bevan, who spoke to you earlier this week, led to a proposed amended convention that, in our view, far from strengthening NAFO, would substantially weaken this already ineffective organization.
Mr. Hearn subsequently claimed that with these changes, NAFO had been “fixed”. That is a quote. In reality, the problems at NAFO are far from being fixed. What happened was that the European Union, particularly influenced by Spain and Portugal for years, seized on the opening of these negotiations as an opportunity to pursue their interests by weakening the convention. They did not focus on just NAFO in particular. In fact, it was part of a global initiative by the European Union to amend the conventions of various regional fisheries management organizations and tailor them to what they saw as suiting their interests.
In any event, as you know, of course, NAFO, at the meeting in Lisbon, in September 2007, adopted this proposed amended convention. In our view, this package of amendments advances the interests of the EU and other countries in the northwest Atlantic while falling far short of Canada's original objective of strengthening NAFO, of improving NAFO, of giving it teeth.
This package, if it comes into force, will be, in our view, a major setback in terms of protecting Canadian sovereignty and in pursuing conservation in the northwest Atlantic. In fact, I've heard that the EU officials in Brussels broke out the champagne when Canadian negotiators in Lisbon acceded to their demands.
The four of us, as retired public service executives, did our best to inform decision-makers, in advance, of the shortcomings of these proposed amendments. We attempted to make Mr. Hearn aware of the shortcomings. We went public with certain op-ed pieces in newspapers and so forth and spoke on fisheries broadcasts. That was Mr. Applebaum and me.
It was our view that to strengthen NAFO, two major things needed to be done. One was to incorporate into the convention an effective enforcement mechanism, one that did not depend solely on flag-state action to provide for removal from the fishery those vessels that break the rules. The other was the removal of the objectionable objection procedure, which allowed any NAFO member to, in effect, lodge an objection and ignore NAFO decisions. This objection procedure had caused enormous grief for many years. For example, Spain and Portugal, before they joined the EU, would lodge objections to decisions and then fish freely. The European Union, once Spain and Portugal became members, adopted the same practice.
Unfortunately, the package of amendments that has been submitted really achieves neither of these objectives. It does not provide for effective enforcement, and it provides for a non-binding review system only, one that cannot culminate in overruling an objection unless the objecting party allows that to happen. Mr. Applebaum can elaborate on that.
Mr. Bevan told you on Tuesday, I think, that they have in fact achieved an improved enforcement scheme. There's one fallacy in that argument. This enforcement is left to a series of measures outside the convention, which can be undermined by any flag state, at any time.
Someone may appear before you this week and tell you that things are better than they were. That may be the case on the water, but the reality is that it only takes a short change in the perspective of the people who are sending these vessels to fish--the governments involved--and things can go upside down. There's nothing in the convention that dictates what the enforcement system would be.
There are also a couple of things that are the opposite side of the equation--amendments that would substantially weaken NAFO. One is the proposal to change the voting rules in NAFO, from the current simple majority system to a two-thirds system. Mr. Bevan told you this was progress. In our view, it's not. It will make it more difficult for Canada to obtain restrictive conservation decisions.
This was brought to the minister's attention at the time. He refused to protect the simple majority system, with the result that the two-thirds system is now incorporated into this package of amendments. This was described as “improved decision-making”, in that it would provide some protection for Canada's current allocation percentages. Again, Mr. Bevan told you that was a major success of these negotiations, that we'd be able to lock in the Canadian percentages and it would require a two-thirds vote to change them.
He also gave you a deck--I got a copy of it afterwards--in which there were certain objectives outlined for these negotiations that they had been attempting to achieve. The number one objective on that sheet was to protect Canada's share of allocations. Nowhere on that sheet did I see any reference to conservation, protecting, or rebuilding the fish stocks, which I found perplexing.
Liberal
The Vice-Chair Liberal Lawrence MacAulay
Mr. Parsons, we have one hour and 15 minutes, and we want to get a couple of rounds of questions in.
Liberal
The Vice-Chair Liberal Lawrence MacAulay
If we can, because if we don't, Mr. Applebaum is going to--
Liberal
As an Individual
To sum up, the other major problem in the convention is the provision that would allow NAFO, with Canadian acquiescence, to intrude into Canadian sovereignty by establishing catch and quota regulations, including enforcement, inside Canadian waters up to and including the Gulf of St. Lawrence, the shores of la belle province of Quebec, New Brunswick, P.E.I., and the west coast of Newfoundland. Under the existing convention, NAFO can't do anything in that respect.
Why is that there? There is no reason for it to be there, except that the parties on the other side of the negotiating table wanted it there. Then there's the arbitration provision, which we'll come back to.
The final point I would make is that former Minister Hearn stated that as a result of these negotiations and this package of amendments, “Canada is now the custodian of the fisheries resource”. He also stated, “Canada continues to achieve custodial management over the NAFO regulatory area.”
How in God's name does this package of amendments provide for custodial management over the NAFO regulatory area? There is no basis for that. That is hogwash. In fact these amendments are a far cry from the commitment to extend the 200-mile limit and exercise custodial management. If they're ratified, they will tie Canada's hands for decades.
Honourable members, it's not too late to fix this. The clock is ticking, but Parliament can refuse to ratify the proposed amendments and stop the process of bringing it into force. We call on you to take the steps to stop this process before it becomes too late, with tragic consequences.
Liberal
The Vice-Chair Liberal Lawrence MacAulay
Thank you very much, Mr. Parsons. We would like to have your full presentation available to all the members.
Mr. Applebaum, go ahead.
Bernard Applebaum As an Individual
Thank you, Mr. Chairman.
In the period that followed Canada's extension of fisheries jurisdiction, I was a member of the Canadian delegation to the meetings that produced the existing NAFO convention, and I was also a member of all the Canadian delegations to all the NAFO meetings in the period that followed that, until I retired in 1996.
In 2007, I was one of a number of former DFO officials invited to appear before a Senate committee that was reviewing international developments on fisheries in the northwest Atlantic outside Canada's 200-mile limit. Three of my former colleagues were also involved: Bill Rowat, former deputy minister, Scott Parsons, former assistant deputy minister, and Earl Wiseman, who succeeded me as director general of the international directorate.
In preparing for the Senate hearing, I met with DFO officials to get updated on current developments. I learned that negotiations were close to completion on a new NAFO convention to replace the existing one, which had been unchanged since its creation. The proposed new convention was intended to be an improvement on the existing one, with better provisions for the conservation of the fish stocks outside 200 miles in the northwest Atlantic.
When I reviewed the draft of the proposed new convention, I was struck immediately that two serious errors had been made, resulting in draft provisions that, if brought into force, would threaten the integrity of the Canadian 200-mile zone and would weaken Canada's ability in NAFO to get strong conservation decisions to protect the fish stocks outside 200 miles.
The first error involved a major change to the essential structure of the existing NAFO convention. In the negotiation of the convention in the late 1970s, the Canadian negotiators had erected an impervious barrier against any possible intrusion of international management into the Canadian 200-mile zone. Under the new law of the sea convention, negotiated just before, in the mid-1970s, Canada and all other coastal states got the exclusive right to manage fisheries in their 200-mile zones. Accordingly, the NAFO convention negotiated after that extension of Canadian jurisdiction restricted international management to the high seas outside the Canadian 200-mile zone. Nothing in that convention, which remains in force right now, allows for a hint of possible intrusion into Canadian waters.
I was astounded to see that the Canadian negotiators for the proposed new NAFO convention had accepted draft provisions that would allow international management inside 200 miles, all the way to the Gulf of St. Lawrence, into the gulf, right up to Canadian shores, the only condition being that Canada would have to acquiesce. This acquiescence could be given quickly, orally, in the heat of a negotiation, without consulting Quebec, Newfoundland, or any of the other Atlantic provinces. The leverage this provision would give other states, to either pressure Canada during negotiations to acquiesce or to accept poor conservation decisions outside 200 miles, should be obvious.
The other major error, referred to by Mr. Parsons, involved the two-thirds majority system, and he's explained that. The head of the Canadian delegation that negotiated the proposed new convention has described this two-thirds rule as “more inclusive”. It's certainly that. It doesn't take much to figure out the nature of the positions that will have to be accommodated in NAFO to achieve this inclusiveness.
I and my three former colleagues drew the attention of the Canadian negotiators and the Minister of Fisheries to these problems, believing—I think we all believed, I believed—that in the final stretch of the negotiations they'd be fixed. They weren't. Instead, the provision of international management inside Canadian waters was, in one respect, made substantially worse. It now also provides not just for international management inside Canadian waters, but international enforcement inside Canadian waters.
The two problems I've brought to your attention are the most serious defects of the proposed new convention, at least in terms of what it says. In terms of what it omits, which should have been in there, Mr. Parsons has told you about those. But these two errors I've mentioned aren't the only ones.
There are other provisions as well where the language of the existing NAFO convention has been changed to weaken Canada's ability to obtain strong conservation decisions in NAFO. I found a few, but I expect that a rigorous analysis and comparison would bring up a number more.
I understand this hearing today is part of a process in Parliament to get Parliament's views on the proposed new convention, which the government will take into account in deciding whether or not to ratify it.
My own view is that the government should refuse to ratify it and, in addition, take the necessary steps available to prevent it from coming into force, as without these steps the convention will come into force for Canada even if Canada refuses to ratify it.
Instead, new negotiations should be launched to amend the existing NAFO convention in a manner that will strengthen the ability of NAFO, and Canada, to provide for conservation outside Canadian waters in the northwest Atlantic.
I can sum up the current situation very simply. The existing NAFO convention has its faults, but the proposed new convention does not cure them, and it's worse.
Also, as Mr. Bevan told you earlier this week, NAFO was currently working very well under the existing convention. It will work no better under the proposed new convention. There is, in fact, nothing that NAFO would be able to do under the proposed new convention that it cannot now do under the existing convention, except for one thing: under the proposed new convention, it would be able to manage and enforce inside Canadian waters, right into the Gulf of St. Lawrence, right up to the shoreline.
Finally, as Mr. Bevan told you, there are no conflicts now under the existing convention. But the proposed new convention would open up a new issue for conflict, and that is when pressure is put on Canada to allow NAFO to manage fisheries inside Canadian waters.
Thank you.
Liberal
The Vice-Chair Liberal Lawrence MacAulay
Thank you very much. We appreciate your time.
We'll start the round of questions.
Mr. Byrne.
Liberal
Gerry Byrne Liberal Humber—St. Barbe—Baie Verte, NL
Thank you very much to both of our witnesses this morning. I know both of you have a certain passion for this particular issue and have spent a career, a lifetime, working on it for the betterment of Canadian fisheries policy. So thank you for being here, and I especially thank you, Scott, for being here under difficult circumstances for you. We acknowledge that.
I want to just get right off the mark and say that a very wise and experienced man once told me that prior to extension of the 200-mile limit back in 1977, fishing activity by foreign-flag vessels was actually somewhat minimized temporarily, not because of the extension of the 200-mile limit, but because we were in a fuel shortage, a global economic crisis, and market conditions didn't necessarily allow for much foreign activity.
It seems to me that we have a parallel situation in 2009 now. It's quite interesting. What Mr. Bevan described as limits to foreign citations on the Grand Banks being a result of enforcement mechanisms may be exactly some of the same circumstances that occurred back in 1977.
Notwithstanding all of that, I raised three very specific, direct questions to our witnesses on Tuesday. One was on the finality of the decision-making process. You touched on each and every one of those questions in your presentations, but I just want to repeat them and ask you for your comments.
Do the changes to the NAFO convention result in binding decisions on contracting parties?
Mr. Bevan didn't give a very clear picture, in my mind, of the objection procedure that the revised convention allows. Could you elaborate and include a discussion about UNFA in this process? Mr. Bevan put a lot of stock in UNFA in this process?
At the end of the day, under the revised convention, could a NAFO-contracting partner implement unilateral fishing plans within the NAFO regulatory area if they so chose--yes or no?
Second, the NAFO convention provides for a mechanism for NAFO to assume patrols and management authority inside Canada's 200-mile limit. Could they actually assume patrols, enforcement, inside of the 200-mile limit, inside the exclusive economic zone of Canada, if this provision were adopted and acquiesced by Canada? Any discussion on that would be helpful.
And finally, on the NAFO decision-making process, it's been described to us that a two-thirds majority in decision-making is better than a simple majority, 50% plus one. I'd like a discussion on that.
So there are three questions. One is on the two-thirds majority; one is on NAFO-contracting parties patrolling inside of 200 miles; and the other question is on the objection procedure and the finality of decision-making.
As an Individual
I'll answer your questions in the order they were raised. The first question was about the finality of the clause that you were referred to by Mr. Bevan.
First of all, the current NAFO convention has an objection procedure. Any country can opt out of decisions. The proposed NAFO convention has an objection procedure. It's the same procedure. Any country can opt out of NAFO decisions. Under the old NAFO convention it was not possible to overrule those objections and compel any country to live with NAFO decisions. Under the proposed new convention there is no possibility of overruling objections and forcing any country to withdraw or not follow up on its objections.
All the proposed new NAFO convention does is provide a review process. I think Mr. Bevan may have referred to that as an appeal process. He can use the words he wants. I think most people think an appeal process, at least in the court systems we have, produces a binding decision. However, this is not an appeal process. The proposed new convention is a review process. It produces no binding decision. Countries are just as free at the end of the process to do whatever they want, as they were under the old NAFO convention.
The next question that was raised was about whether NAFO will be able to send patrols into Canadian waters. The NAFO system provides for international enforcement outside 200 miles. It allows it, and it's done, and we have a system of joint international enforcement outside 200 miles. If Canada acquiesced, gave its consent, or gave its request, or whatever way you want to use the words, to NAFO to do that inside Canadian waters, NAFO, under the proposed new convention, will have the jurisdiction and ability to do that. Under the old convention, the current convention, they couldn't do that. Under the new convention they will be able to. That's within their jurisdiction, providing Canada requests it. Now the game is, how do you pressure Canada to make the necessary request? There are ways to do that.
The third reference is a bit of a red herring: UNFA. You were raising a red herring. The UNFA convention had a number of provisions to deal with problems of overfishing on the high seas. There is an arbitration procedure available under it, but it's all rather irrelevant to anything that happens under the proposed new NAFO convention. I don't think it's even worth dealing with those provisions about going to international courts.
The UNFA convention provided a system of enforcement that allowed a coastal state, or any member from an organization but Canada, to be able to actually seize a foreign vessel that was breaking the rules and hold it out of the water so it couldn't fish for some period of time before the flag state had to take it home. That was its key enforcement provision, which was never followed up by the Department of Fisheries and Oceans after the UNFA provision came into force. Instead, there is no similar provision in the NAFO convention. That was the opportunity that negotiators had to incorporate that into the NAFO convention, but they didn't. They left it as flag-state enforcement.
I've tried to answer your three questions.
Liberal
Gerry Byrne Liberal Humber—St. Barbe—Baie Verte, NL
You've pretty well effectively answered that. I just want to follow up on the two-thirds majority.
As an Individual
Right off the bat, it's obvious. It's harder to get a restrictive NAFO decision on conservation the more votes you need. It was difficult enough in the years that I was in this organization to get that simple majority. As soon as you increase it two-thirds or three-quarters, it doesn't matter, one vote, two, three, you have to accommodate somebody else. In the most simple example, somebody wants more fish, so the TAC has to go higher to accommodate the country that needs more fish. You need that country's vote; you have to accommodate it. The total allowable catch goes up to accommodate it. It's better than it going up higher, but it's not what it ought to be.
That's essentially what the two-thirds voting does. From Mr. Bevan's position, the two-thirds provision now for voting would—I think they've used the expression—lock in the existing allocation shares. What it does is, yes, it makes it a little harder to change the allocation shares. You need another vote with the current membership to change them. If another country, a foreign country, can get that other vote and change the shares, once they've changed, Canada has to get the extra vote next time to be able to change them back. The two-thirds voting vote goes against Canada as soon as we lose a vote on the proportional shares.
Liberal
Gerry Byrne Liberal Humber—St. Barbe—Baie Verte, NL
And we did, indeed, hear testimony from Mr. Bevan that there's activity right now by contracting parties to actually use the ratification—well, he did not say that; he said there is activity by contracting parties to change the quota structure. For example, he did acknowledge that the Faroe Islands were currently looking for bigger shares of shrimp.
I'm sure other contracting parties are doing that right now, because as I noted, in order for ratification to occur, if any one contracting party dissents and does not ratify prior to a three-quarters majority, then the entire convention fails. So Canada, again, is in a very difficult position. We either acquiesce and provide more quota today or the Canadian official position could be torpedoed and the convention not ratified. So there is an appetite, it appears, to provide whatever is available.
This is my last question. Mr. Parsons, you made reference to the election campaign and commitments. Did the department work very hard, in your experience or opinion, to provide some sort of perception of a win? A commitment was made that custodial management would occur and changes to the NAFO convention, whatever they actually materialized to be, were perceived to be true. What do you think about that?
Liberal
The Vice-Chair Liberal Lawrence MacAulay
Mr. Parsons, or whoever, please give a short answer, if you can.
As an Individual
Obviously, Mr. Byrne, I wasn't present at the discussions that occurred in DFO. I know the kinds of discussions that can occur, from my experience.
Certainly, the result suggests to me...and I have no interest in partisanship in this issue. The result can only be explained to me that this amended package was a result of desperation, the desperation being the need to be seen to be fulfilling a commitment.
Bloc
Raynald Blais Bloc Gaspésie—Îles-de-la-Madeleine, QC
Thank you, Mr. Chairman.
Good day, gentlemen.
First of all, I would like to hear you speak about your experience with the old NAFO. It was a failure, it did not succeed, it was a failure as far as cod is concerned.
Today, we are hearing about a new NAFO which, in your opinion, will also be a failure and does not represent an improvement. When an organization is not a success, I tell myself that it must be changed. Its way of doing things, of negotiating must be changed. A new way of doing things has been proposed. I have no guarantees or assurances that this will be either a failure or a success. However, I know that the old NAFO didn't work and does not work. Why not give the new NAFO the benefit of the doubt, given what we have been presented with?
As an Individual
Thank you, Mr. Blais.
You're correct. The old NAFO did not work, and I see no reason to think, based on what we have in front of us in this amendment package, that the amended NAFO will work.
The reason I say that is part of the reason the old NAFO, the existing NAFO, didn't work was, number one, this objection procedure. For many years, year after year, the contracting parties would sit at the negotiating table in NAFO and arrive at decisions--it was a simple majority vote--and then the party that didn't like the decisions would go away and lodge an objection, and fish freely, overfish.
It's well documented--the case of Spain and Portugal, in particular. In 1986 they acceded to the European Union and then the European Union completely changed its position and started doing what Spain and Portugal wanted, and objected and objected. So although there was this theoretical agreement to a total allowable catch at the table, in reality there was free fishing.
The second thing is there was no effective enforcement scheme in the convention. There have been repeated attempts to fix that under the existing NAFO. Mr. Bevan claims it's working better now. Mr. Byrne suggested a possibility as to why it might be perceived that way. I don't know if that's correct or not, but we're all aware of the global economic situation.
However, the new NAFO, the amended NAFO, the proposal that's before you, doesn't deal with the objection procedure. It just provides for some long, convoluted review process, where people will talk and talk, and the result will be that a country is still free to do what it wants.
It doesn't provide for effective enforcement provisions in the convention. There might be agreement today that we will agree to do such and such on the high seas, but next year, government changes, everything changes, so in our view....
If I might, Mr. Chair, Mr. Bevan said to you there were only two alternatives. Mr. Bevan said your alternatives are to adopt this package of amendments or to live with the existing NAFO organization.
I understand the tenor of your question is that given that the old NAFO didn't work, maybe we should try this new arrangement, but in reality, we know now that a new arrangement will not work because it hasn't fixed the problems of the old arrangement.
I suggest to you there is a third option. That third option is to shred these amendments. Reject them on behalf of the Canadian people. Exercise your privileges. Reject this package of amendments. It's not sufficient. It's not adequate. And then send new Canadian negotiators back to the table at an appropriate time to secure an arrangement that will work in Canada's interests.
Thank you.
Bloc
Raynald Blais Bloc Gaspésie—Îles-de-la-Madeleine, QC
I feel that there is a very serious problem that is not being dealt with, and I hope you will be able to do so in your answer. Sovereign states agree to negotiate. If there are no constraints or obligations, or if there is no tribunal that can impose anything, negotiations take place between sovereign states. They will do as they wish in the way that they wish, as the old NAFO allowed.
What portions could be negotiated that would allow us to arrive at a permanent solution? We must remember that in the end, we are appealing to the sovereignty of each of these countries. The implementation becomes terribly difficult at some point because every country hides behind that sovereignty and decides in the end to enforce what they wish. At the end of the day, we are not making any progress, whether it is with the old NAFO or the new NAFO.