Evidence of meeting #8 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 convention.
A recording is available from Parliament.
Conservative
Conservative
Conservative
John Weston Conservative West Vancouver—Sunshine Coast—Sea to Sky Country, BC
Merci.
Thank you both for your very helpful observations.
Mr. Andrews, if I can summarize, I think you said that this seems to be an improved convention. The objection procedure has improved. The MCS backs that up. There are raised expectations of prosecution by the home state. It's not going to be perfect. You're never going to get everything you want out of 12 countries, but it's better than it was before.
I want to get back to Mr. Byrne's objection. I think that in any convention, you have a host of terms and conditions. There are going to be some you like. I bet even Mr. Byrne likes some of them. Then there are some you really don't like. The one he doesn't like is on this issue of sovereignty. It would trouble me as well, unless I understand it the way you're portraying it.
As I understand it, and I'm quoting from the DFO website: “The high seas is the area beyond the EEZ. No state has sovereignty or jurisdiction over the high seas” and “no state may claim sovereignty”. So as I understand international law, we couldn't have gotten sovereignty beyond 200 miles, even if we had negotiated for it. NAFO couldn't give it. Nobody could give it. Correct me if I'm wrong, but if we couldn't get it, then there's no point in asking why we didn't bargain for it. The flip side he's concerned about is the intrusion on our sovereignty and that we may have given something up. I've heard you both say, well, without the consent of Canada--and it's unlikely to happen--we could have given up our fish stock management before NAFO anyway, so we haven't really given anything away.
The two parts to the question are whether we could have gotten more outside 200 miles if we had bargained for it, and really, whether we have given anything up within our 200-mile limit.
Commissionner, Northwest Atlantic Fisheries Organization
On the first count, I would just like to say that outside 200 has always been an area that some people.... I guess, without a full understanding, even I myself would have said that “custodial management”, that fancy term that keeps coming up, would solve this whole issue. By that, of course, one would simply mean that Canada sets the quotas and Canada does the enforcement and all those things outside 200. But I defer to the experts who last studied this, one of whom was Dr. Arthur May, a former deputy within the federal system, and Derrick Rowe and Madam Russell, from one of the law schools in Nova Scotia.
Basically, what it came down to was just two simple things. First, on the high seas, outside 200, no country that I know of is anxious to entertain that kind of management. Second, no country I know of would want to give up their sovereignty when it comes to legal matters and have some coastal state do the actual management outside, lay charges, and take people to court.
All of that stuff is good, if there's international willingness and support to do it. But while you would have liked to have seen it, the same as we would have liked to have seen an extension of jurisdiction to the end of the Nose and Tail, as of now, sir, I couldn't see us getting anything much beyond what we got beyond 200 with this process.
As far as giving up, I just have to go back, again, and say that while this clause deals with people or countries coming inside 200, I think, in all fairness, that Mr. Applebaum gave a very clear answer to that when he was here last week. Can somebody come into Canadian jurisdiction without the request of the state, which is Canada? The answer he gave was one word: No. And that's the one I rest on, because he's an international lawyer who did this for many years. I was with him at many of the meetings. He was the lawyer for DFO in Canada. And when he categorically said no, that nobody can come in unless Canada requests it and then votes for them to come in, I take all the comfort in the world from that. I know that if a minister of the crown, whoever that person might be, were to acquiesce and say “Come on in and do whatever, I could get more access or get enforcement measures,” I would just say no. That's the simple way I would respond, the same as Mr. Applebaum said. It can't be done.
Commissioner, Northwest Atlantic Fisheries Organization
I'd like to briefly speak to Mr. Weston's comment.
I haven't read that particular part of the DFO website. International law evolves. If I were in charge of communications for the Department of Fisheries and Oceans in Canada, I would not have on our website that you can't do it out there. As to whether we'll ever get there, or whether it is imminent, no, it's not. But would I put out that it is not possible? No, I wouldn't have that on our website. I don't think that's the right foot for us to put forward. Who knows what will happen long after I'm long forgotten about in the fishery? At some point things may change. I wouldn't tell people we can't do it. The fact that it's not within our grasp at the moment doesn't mean we shouldn't strive for it and push for it, and at least not be out there telling the world that we can't do what it is that a lot of our citizens would like us to do. I don't understand why they have it there.
Bloc
The Vice-Chair Bloc Raynald Blais
Thank you very much.
Now we start the second round of questions and answers with Mr. Scott Andrews.
Liberal
Scott Andrews Liberal Avalon, NL
Thank you, Mr. Chair.
I'd like to get back to custodial management. Right now, even though DFO's website is saying one thing, the government is claiming that they have custodial management of this because of this new NAFO convention. They're using this as a reason to say yes, we now have custodial management.
Is that true, yes or no?
Commissioner, Northwest Atlantic Fisheries Organization
I think it's nonsense to claim that, in respect to what most people claim as “custodial management”. I do not agree with it. The new regime that we have is, in my personal opinion, and if given the choice between the old regime and the proposed new regime—on the balance of all considerations—an improvement. But to claim that it is equivalent to custodial management...? I don't buy that for a minute.
Commissionner, Northwest Atlantic Fisheries Organization
If you take the simplest definition one can get of custodial management—and excuse me, it's mine, but I think a lot of people have used it—it basically says that the coastal state can decide who can fish, and what allocation they get, and thirdly, that the coastal state would be responsible for management and enforcement outside the 200-mile limit. All of the facts pertaining to that—again I repeat—were best summarized by three people who spent a year discussing it, studying it, and presenting a report to the Government of Canada. In my humble opinion, none of the three conditions is met that pertain to custodial management. I have to be very honest and say that in my opinion, after many years in government, custodial management is not a reality.
Liberal
Scott Andrews Liberal Avalon, NL
I'd like to get back to discussion about inside the 200-mile limit. Both of you have said it would never happen that we would give jurisdiction inside the 200-mile limit. The question I have is why that clause is there.
Commissioner, Northwest Atlantic Fisheries Organization
The background of that clause, as I understand it, and I'm not an advocate or a supporter of it, is that there have been cases in other regional fisheries management organizations in which either the capacity of the coastal state was in question or there was another reason why a coastal state.... Actually, I think there are specific examples of a coastal state looking to have some assistance with enforcement inside their waters; this was in an organization other than NAFO. That's my recollection from the debate around it. When I say it would never happen, I suppose I should qualify by saying that it has happened in the past on numerous occasions, but not at all in the last number of years—I think in excess of 10 years. For all practical purposes, the practice ceased about 20 years ago. Even though any minister up to and including the current minister could at any time have said, come on in and catch whatever you want to catch in here, it hasn't happened.
It's a matter of sovereignty that we protect our 200-mile zone. It's safe to say that within that zone, for the past succession of administrations, it has been done with respect to the issue of allowing foreign vessels in. I don't see what would happen, with that provision in place, that would lead the Canadian government to go to NAFO and say we wanted to forfeit our sovereignty on a matter that is important to some of our citizens and were using NAFO as a vehicle to do so.
Liberal
Scott Andrews Liberal Avalon, NL
You said it has come from another organization. Have any of the 12 member countries within NAFO ever asked for that type of jurisdiction?
Commissioner, Northwest Atlantic Fisheries Organization
From time to time they've asked for the right to catch quota in the Canadian zone, and the answer for the last umpteen years has been no. At one time the answer fairly frequently was yes, in return for other considerations.
Liberal
Scott Andrews Liberal Avalon, NL
But you said that some other countries would ask for jurisdiction within their own zone, like for help. Is it the reason why this clause was put in?
Commissioner, Northwest Atlantic Fisheries Organization
That was my recollection from some years ago.
Liberal
Scott Andrews Liberal Avalon, NL
Were any of those countries in NAFO, or was it in this other organization?
Commissioner, Northwest Atlantic Fisheries Organization
No one in NAFO asked for.... There are three coastal states in NAFO: us, the United States, and St. Pierre and Miquelon. But for all practical purposes it's us.
Liberal
Commissioner, Northwest Atlantic Fisheries Organization
No one to my knowledge has ever asked for any kind of policing role in the Canadian zone. I've only heard of another country asking for access to fish in the Canadian zone and the right to use Canadian ports. That's the only thing I'm aware of that they've ever asked for.
NDP
Peter Stoffer NDP Sackville—Eastern Shore, NS
Thank you, Mr. Chairman.
Mr. Andrews, we've heard in previous Parliaments that there may be a legal argument for Canada to expand its seabed jurisdiction another 150 miles past the 200--not above, but right on the seabed itself. One of the big concerns in the Arctic right now is the extensive mapping by everyone to determine their continental shelves for oil and gas concerns.
On my view of custodial management—and this is where it all came from—when Mr. Hearn was a member of the official opposition he moved a motion in the House of Commons that the entire House and all parties in Newfoundland and Labrador supported. We expected that to be a campaign promise and it was. It was a 2006 campaign promise.
My understanding of custodial management was that NAFO would determine the stock--if a particular country was to have yellowtail, shrimp, or whatever--and they would get x number of tonnes of that stock. We would go out, manage it, and check the holds. If everything was according to Hoyle, that ship was free to go back home and do whatever. If not, it would get hauled into St. John's for discussion.
That was my view of custodial management, and that's why we fully supported it. We only assumed that the official opposition would know whether there was legal jurisdiction to this or, as you had indicated, that you couldn't do it.
Those are some of the concerns we have. And we've heard governments compare this current agreement to custodial management. We're glad to hear you say that it's not.
Mr. Andrews, on one of the concerns we have—and you would know this, being up in the far north—we have evidence of ships coming into the 0A line, fishing Canadian turbot, and sending it to Greenland for processing. I believe that was through the BFC and other vessels of that nature. So there is evidence of ships coming in, fishing Canadian stocks, and sending that fish somewhere else to be processed. So if it happens up in the 0A line, which is not NAFO, I believe, it can happen again. Right now the only way countries can come in to Canada and fish the stocks is illegally--doing it without observation, and then trying to scoot past the line again.
If the objection Mr. Applebaum raised so strongly about the management inside was just removed, would this be a deal breaker to the other parts within the NAFO agreement? I agree with you there are certain elements, reading it carefully, that are an improvement over the previous NAFO, but there are still some major concerns that put these red flags out there. If the agreement to let the vessels come inside the 200-mile limit were removed, would this be a deal breaker in your NAFO talks, in your experience?
