Fisheries Committee on March 5th, 2009

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

The EU and the United States, two major NAFO convention partners, are about to engage in a legal certification process for fish harvesting practices. In order for Canada to potentially sell fish into the EU or the U.S., we will have to be certified under their standards. If such legislation were ever to occur, could that be justification, potentially, for the EU to demand entry into Canadian waters to investigate our practices so they can determine whether they meet certification standards? In other words, could changes to the NAFO convention allow the EU, in their certification requirements of Canadian seafood practices, to say, “Allow us into Canadian waters or we won't certify you”?

[Scott Parsons]

I am not totally familiar with the process you're referring to, Mr. Byrne. I'm aware of the more general Marine Stewardship Council certification process. It's becoming the interest of industry around the world to enter into certification processes to establish that fisheries are sustainable because of market considerations down the road in terms of consumers everywhere. There's a big movement out there, generally, attempting to raise the question of the sustainability of fisheries. In Canada we've had the recent example of shrimp. Parties asked for a review and certification process. In fact, the northern shrimp fisheries and the Gulf of St. Lawrence shrimp fisheries were certified by the Marine Stewardship Council, as I understand it.

I know that's not answering your question. I'm not answering your question directly, because it would put me in the position of making a lot of assumptions about what would go on in the European Union process.

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

Thank you, Mr. Parsons.

I'm going to turn the questions over to my--

[The Vice-Chair, Liberal, Lawrence MacAulay]

Thank you very much, Mr. Parsons.

We'll go to Mr. Andrews.

[Scott Andrews, Liberal, Avalon, NL]

Thank you to our expert witnesses for coming in today to give us some insight into this matter.

DFO has admitted that the 1978 NAFO convention is flawed, and it continues to be flawed to this day. They are trying to take steps to improve it.

I'd like to get into this whole custodial management area that was alluded to and to the former minister masking the convention as custodial management of the stocks.

Could you give me some insight as to why DFO continues to push NAFO as the way to manage our stocks outside the 200-mile limit? Why wouldn't DFO be more aggressive in going after our jurisdiction, extending the 200-mile limit, and trying to get the custodial management ourselves? If this process in the past was flawed, and we can't come to some reasonable compromises and corrections, why hasn't the department in the past—and looking at the department now—put more custodial management outright on the nose and tail and the Flemish Cap and the continental shelf?

[Bernard Applebaum]

The term “custodial management” is a term that usually gets used without people trying to put a definition on it. In its simplest concept it means that Canada would unilaterally be able to control fishing outside 200 miles for the purposes of conservation. That's essentially what it means. The international legal advice has always been that it's high seas outside 200 miles under international law. No country can have that kind of authority or jurisdiction outside 200 miles in the absence of the consent of the flag states that are being brought into this custodial management process, and that is what has held up progress so far in proceeding toward this description of custodial management.

The term “custodial management” can also mean a lot of other things, or at least lesser things than unilateral control outside 200 miles. NAFO, in negotiating this new convention, could have granted Canada custodial management even in the broad sense. They wouldn't. They could have legally done that, and then Canada would legally have custodial management outside 200 miles. The NAFO members wouldn't because of sovereign rights, sovereignty, high seas, and that kind of thing. They wouldn't do it, but they could have granted Canada something more had Canada demanded something more than we have now, something that would give Canada a greater handle on controlling fisheries.

One thing is what the UNFA convention proposes, and the EU is part of the UNFA convention. The seizure I described to you would allow Canada to bring a vessel into port and hold it and take it off the water. They could have done that. They could have been pushed to do that. They never did. Whether they were pushed, I don't know; I wasn't part of those negotiations.

NAFO could have said as well, or Canada could have said, “We have a new proposal--we now have it in this draft convention--that Canada can request NAFO to manage inside 200 miles. Why don't you put in another provision that says NAFO can request Canada to do this, that, and that outside 200 miles? You'd have to request it. You couldn't do it unilaterally, but if we could get you to agree to it, that would give us this kind of handle outside 200 miles.” No. What happened was NAFO got a form of custodial management inside 200 miles through this provision that says Canada can request it and we can do it. Canada got nothing outside 200 miles.

[The Vice-Chair, Liberal, Lawrence MacAulay]

Thank you very much, Mr. Applebaum.

Mr. Blais.

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

Thank you, Mr. Chairman.

Do you agree with the principle that we need negotiations on fishing in the northwest Atlantic, that it is mandatory that we have negotiations and a convention?

[Scott Parsons]

It is certainly necessary to have some form of management regime in a place outside of 200 miles. We've seen the pillaging that occurred under an ineffective NAFO organization. We need an improved management regime that includes the provisions Mr. Applebaum and I have mentioned--and not just us, by the way. These have been well documented in the reports I referred to earlier, the task force in 2005 and so on.

An absence of management, no regime, would lead to total plunder, total pillage, and without restraint, without any controls. Some people would argue that maybe you could go that way because then they would fish out the stocks and they would go home, but the reality is we're dealing here with straddling stocks of importance to Canada. We're not dealing with isolated stocks on the high seas beyond Canadian jurisdiction that are not of interest to Canada except for the Flemish Cap. We're dealing with this fishing that occurs outside the Canadian 200-mile zone because of the nature of the continental shelf and the extension of the shelf beyond the Canadian 200-mile zone.

As one former fisheries minister used to say, fish don't carry passports. They cross back and forth across that boundary, so it is vitally important to Canada to have some form of effective management outside 200 miles.

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

I am in fact in agreement with this principle.

What is the principle when we undertake negotiations? What pitfalls are to be avoided and what principles must be upheld that we cannot compromise on? We can make compromises, but we cannot compromise our principles. When we are negotiating, of course, that means that there is give and take. However, there are principles that we cannot back down on, though we can accept changes or compromises elsewhere if need be.

In your experience, on what principle or principles should negotiations rest that would be to the advantage of the resource, and potentially to Canada?

[Bernard Applebaum]

Thank you for that question. Some of the answer will be things you've heard before, but I'll have a try at the major principles for a new convention to replace or amend NAFO. One is that the integrity of the Canadian 200-mile zone has to be protected. There should be no provision that allows, in any way, any international meddling with Canada's sovereign rights inside 200 miles. That's one. That's a protective thing.

The other one, which Mr. Parsons mentioned earlier, is to have a provision locked into the convention that provides for an enforcement regime that cannot be changed by NAFO meetings or avoided by other NAFO members. One enforcement regime is the one that's already been agreed to by the EU in what is now the UN fisheries agreement, UNFA. That allows any member of an organization to seize a vessel that is outside 200 miles and keep it off the water for a while.

Another one is that I think you have to have some form of objection procedure, a real, effective appeal procedure that would result in a binding conclusion so that objections could be overruled when it's right that they be overruled.

Those are the three main points I can think of. There are lots of other little points, of course, and maybe not so little.

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

Thank you very much, gentlemen.

[The Vice-Chair, Liberal, Lawrence MacAulay]

Mr. Stoffer.

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

Thank you very much, Mr. Chairman.

Mr. Parsons, as a former scientist--I guess you're never a former scientist in this regard--on the fish stocks, at the last two meetings we talked about who has the right to fish, when and where. Mr. Bevan did allude that there are.... I'm not quite sure how many stocks he said were on the rebound; they're improving. But I want to ask you, sir, if you have any up-to-date knowledge in terms of the status and health of the stocks now.

The reason I ask is that you're aware of Dr. Ransom Myers, who passed away, and Dr. Boris Worm, from Dalhousie, who indicated, many times, that these stocks are in serious decline and trouble and that if we didn't stop bottom trawling and dragging and things like that we would annihilate these stocks, possibly permanently.

Sir, are you aware of the health of the straddling stocks we're talking about? Are they improving, or are they at serious risk?

[Scott Parsons]

Mr. Stoffer, I had intended last night to check the scientific council reports to update myself on this topic, but I didn't. I am aware that these stocks have been under siege for quite some time. There have been moratoria in effect for many of them. There has been some recovery--the yellowtail flounder, for example, is a case where I think there has been some recovery. But many of the stocks still remain in dire straits.

On the reference to Dr. Myers and Dr. Worm, their statements about the state of the world fish resources were global in nature. In fact members may be aware that on Monday of this week, the FAO, the Food and Agriculture Organization, at the meeting they have annually in Rome, released their latest status report on the state of world fisheries and aquaculture. In that report the situation globally has become more alarming, in the sense that the number of stocks now deemed to be fully exploited and over-exploited is at 80%, which is an increase from an already alarming level previously.

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

The reason I ask that question is I remember Pierre Trudeau was once asked a complicated question on the east coast fishery, and he said the problem with fish is that they swim...as you were talking about, back and forth without the passports.

It appears that what the negotiations have been doing, and I'm of course not privy to them, is they're really arguing about who has the right to fish when, where, how, under what jurisdiction, and what provisions can be made to object to this and that. But it doesn't appear, at least in my thinking, that the fish stocks themselves are at discussion here.

When you were negotiating, Mr. Applebaum, these concerns, was the health of the fish stocks a paramount decision-maker, so that no matter what we agreed to, nationally or internationally, the health of the stocks overruled every other aspect before that?

[Bernard Applebaum]

Unequivocally I can answer yes to that, not only in the annual and more than annual NAFO negotiations I attended, but in the negotiations for the original NAFO convention.

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

Because in the end—and I just say this as a comment—if these stocks continue to go south, as the northern cod did, all of us, it doesn't matter whether it's Canada, Spain, Portugal, or wherever...our children will look at us and say we failed miserably in protecting a very healthy food resource.

[Scott Parsons]

You've raised a very important point, Mr. Stoffer.

If you go back to the presentation you were given earlier this week about the objectives of this NAFO reform process, there was one page that said “stated objectives”, and the first objective was to protect Canadian shares. Nowhere on that page was there any reference to conservation, or putting in place mechanisms to assist in rebuilding fish stocks.

It appears that in these negotiations, conservation was not a dominant consideration—appears, certainly from the documentation, from the discussions and so forth. In my view, one of the major shortcomings of the situation is that people were driven by other issues and other considerations. And this two-thirds majority vote thing that we referred to earlier, in our view, will make it more difficult for Canada to achieve restrictive conservation measures for the straddling stocks.

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

Thank you.

[The Vice-Chair, Liberal, Lawrence MacAulay]

Thank you very much, Mr. Stoffer.

Mr. Weston.

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

First, I applaud your commitment to the preservation of fish stocks—clearly it's been a career-long commitment—and your commitment to Canadian sovereignty.

I would disagree with a couple of your assumptions.

I'm a newcomer to this committee, so you tower over me in experience in this area, but one of your assumptions is that sovereignty has to be absolute, Dr. Applebaum. I just say to myself, if we have sovereignty over nothing, then it doesn't really matter. If preservation of fish is near the top of the priority, that seems to make sense to me.

Therefore I ask myself, what were these negotiators thinking? What did they think they got out of this?

One interpretation is that it was out of a political agenda, which you mentioned, and I can understand that interpretation. But we also heard that there have been improvements under the existing NAFO agreement that might be leveraged under the new one. We were told that infractions had declined over the years. I assume they're declining because of a fear of enforcement or because of the enforcement itself.

Mr. Byrne brought up a very powerful objection to the enforcement mechanism. It relies on the state actors to actually take action against their own party. We heard about Spain imposing a €200,000 fine against a Spanish vessel, which surprised me. Why did that work? I'm assuming that works because if the contracting countries don't enforce against their own vessels, then there will be some implicit or explicit repercussion upon them that maybe...Mr. Byrne mentioned some negotiations going on extrinsic to the NAFO arrangements.

I'm getting around to my question. It seems to me that if one of your main objections is that this relies on enforcement of the host country against its own vessels, and there's a certain amount of consensus there, what is the alternative? The alternative is that we try to create another United Nations. The League of Nations failed. The United Nations fails in many respects. No one anticipates, I assume, NAFO vessels patrolling the seas, that we're creating an enforcement arm with a NAFO brand on patrol boats. The cheaper, more expedient approach is to have the states do it themselves, with acknowledged repercussions if they fail.

Isn't there some method to this madness? Maybe it's not perfect, maybe it's not even good, but is it better than the alternatives?

[The Vice-Chair, Liberal, Lawrence MacAulay]

Thank you, Mr. Weston.

Mr. Applebaum.

[Bernard Applebaum]

First of all, Mr. Weston, I'm glad you picked up on one particular thing that I'm going to refer to now. It is much better to have flag-state enforcement when the flag states are willing to enforce. It's much better if flag states themselves take the necessary action to stop their vessels from overfishing, arrest them, bring them home, take them off the fishing waters.

This was acknowledged in the negotiations for UNFA. The reason UNFA went further than that was the recognition that in the real world this doesn't happen, or it does happen for some flag states but not for others, or times change and countries that were following the rules at one point stop following the rules. That's why under the UNFA rules it provided that non-flag states--any member of an international fisheries organization--could seize a vessel on the high seas, keep it off the water for a while, and hand it over to the flag state.

If you had that ability written into the NAFO convention, what you'd have is an ability you would hope you'd never have to use. The very knowledge that this is available would deter flag states from saying they're going to let their vessels get away with things. The alternative would then be that they'd be arrested by somebody else.

It's an important provision, and it took a lot of trouble and effort to put it into the UNFA convention. It's still there and it's still available if any country, including Canada, decided to take advantage of it and use it.

The best thing would have been to work it right into the proposed new NAFO convention, and it wasn't.

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

Isn't that a difference in the NAFO convention, that there will be flag-state enforcement against the vessels of the flag state, and that's why, in the example that was used by Dr. Bevan, it was $200,000 euros against a Spanish vessel in 2006, and then in 2007 there were no infractions at all? That suggests that in fact we're actually going in a way that will achieve that priority of protecting our fish stocks.