Evidence of meeting #38 for Fisheries and Oceans in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was countries.
A recording is available from Parliament.
Noon
Liberal
Lawrence MacAulay Liberal Cardigan, PE
If it's determined that they are fishing illegally, who has the authority to board? Does anybody have authority to board those vessels?
Noon
President, Fisheries Council of Canada
On the high seas, it would be the responsibility of the port state.
Noon
President, Fisheries Council of Canada
On the other hand, our port states agreement gives us the duty, the obligation, not to allow that vessel to transship or come into Canadian ports, other than perhaps for inspection and seizure.
Noon
President, Fisheries Council of Canada
It also applies to transshipment. The port state measures apply to not only the fishing vessel, but also whatever mode of transportation they have in terms of trying to enter the Canadian market.
Noon
Liberal
Lawrence MacAulay Liberal Cardigan, PE
Okay, then we would know if we had a large trawler fishing on the high seas and it offloaded onto a vessel. We are in some way supposed to know that that fish came off that trawler. Is there a way to know that? Do we have enough observers? The government took over $4 million out of the observer...as you are aware. Does that have an effect on this or not? Do we need more money for observers? Do we need to know more about what's taking place on the high seas?
What I'm getting at is that if we don't fish it inside the 200 and they take it outside, it's not much good.
12:05 p.m.
President, Fisheries Council of Canada
I must add, in terms of NAFO and the regional fisheries management organizations that Canada is participating in, this issue of illegal fishing is pretty much top of concerns. Basically, the countries are working better together in monitoring and regulating. I think the citations that you see from the Department of Fisheries and Oceans have been reduced. They're still maintaining the overflights, if you will, over the area and so forth.
One thing that this amendment may enable at this point in time is, if Canada or observers or whoever identifies a vessel from EU or wherever that gets a citation, then basically that vessel would have to go back to its home port. Then the obligation or the duty of that state is to inspect the shipment to verify that there was illegal fishing taking place. That's been a really new addition to the NAFO tools. What we have found is that unfortunately, for example, many of those vessels that are fishing in the NAFO waters are subsidized. The Fisheries Council of Canada's position is that the fastest way to address overfishing on the high seas is to have a prohibition on any fishing enterprise that operates a vessel on the high seas. In fact, in the action plan of the—
12:05 p.m.
Liberal
12:05 p.m.
President, Fisheries Council of Canada
I'm saying any vessel, in terms of a subsidy.
The thing is that long-distance fishing, by and large, is uneconomic unless you have a subsidy. That's why the Germans got out of it; that's why the UK got out of it; and we're not fishing on the high seas. To us, that's a big issue. Unfortunately, in the IUU action plan of President Obama, one of the issues they have identified to act on is to work towards eliminating subsidies that contribute to IUU fishing. In our view, if IUU fishing is occurring on the high seas and these vessels are getting fuel subsidies, without the fuel subsidies the number of fishing vessels on the high seas would be significantly reduced.
I think there are ways of addressing this, so that hopefully we can emerge in the future.
12:05 p.m.
Liberal
Lawrence MacAulay Liberal Cardigan, PE
In order to curtail it, the other countries that are involved in the high seas fishing, if it's a problem, have to.... Are these the 90 countries or the 16 countries? The 90 countries would be preferable, but it would be a long time before we get there. Do we have a good rapport with the 16 countries you've chaired over the last five years? Do we have any difficulties with them? It's awful hard not to think of what happened with Spain and the overfishing and that type of thing.
I'd like you to elaborate on that.
12:05 p.m.
President, Fisheries Council of Canada
That's a good question.
For example, that's the position of the Fisheries Council of Canada. That's the position of the New Zealand industry, which also has a high seas fishery but agrees that there shouldn't be any subsidies. Also, a member of our coalition is Spain. In terms of the international coalition, I can't promote that as chairman of ICFA in my dealings with the UN or with the FAO. Certainly, as president of the Fisheries Council of Canada, I can advocate that type of position in dealing with the Canadian and the U.S. governments, because the U.S. government is on side, with the National Fisheries Institute.
As you say, within 16 countries there are a couple of countries that would not subscribe to what I just said.
12:10 p.m.
Liberal
Lawrence MacAulay Liberal Cardigan, PE
I would imagine.
You mentioned, too, that all the fish from Canada that go into the European Union now have to be certified by DFO, if I understood you correctly. Does that mean that all the fish that go into the EU are certified by the country they are exported from? Do you think this means there are no illegal fish going into the EU? I would be surprised.
12:10 p.m.
President, Fisheries Council of Canada
Yes, I agree, and that's one of the problems. As you know, if Canada commits to something, it's due diligence and—
12:10 p.m.
President, Fisheries Council of Canada
—we do it right.
In many countries I would think the certificates they're providing.... In fact, the EU is already taking action on that because there are a number of countries they have identified whose certificates they are suspicious are not really not up to par.
I must admit, Canada's DFO has put in place a relatively sophisticated certificate arrangement with computerization. At the time, NOAA, which is the fisheries group in the United States—and I knew the director there—was having a lot of problems in trying to develop a system to address the EU initiative. I told them that we had a great IT company here in Canada that could help them right away.
But the United States was able to negotiate a separate agreement with the EU whereunder they basically provide a list of all the vessels licensed by NOAA, and if in fact the shipment details identify one of those vessels, then it's determined to be okay.
In our situation it's really a much more an in-depth type of quick analysis. There really is a check. The bottom line is that at the end of the day, even though it's more sophisticated and more difficult than the U.S. one, we came to the conclusion that we have it, we know what it is, and you always have to be concerned about audits.
12:10 p.m.
Some hon. members
Oh, oh!
12:10 p.m.
Liberal
12:10 p.m.
Conservative
Ryan Leef Conservative Yukon, YT
Thank you, Mr. Chair.
Thank you to both of our witnesses today.
My question is directed to you, Mr. Henley. It's great that you're in support of the bill, by and large, and I know that Mr. Kamp touched briefly on the one amendment you proposed. Since that is the one piece of concern you have, I figure it's worth exploring that a little bit more.
I've listened to a fair bit of your testimony on the who, the how, and the when IUU fishing comes into Canada and who is involved. I fully appreciate your perspective on the natural justice application of that and the decision of the court over the minister in respect of that section 13 piece.
I gather though that seizures, by and large, are done for two reasons, either to prevent the continuation of the offence, or in respect to securing and preserving any evidence that might be there.
In that regard, we say that in theory the minister could create a cost-prohibitive sanction or not release at all if he doesn't deem the monetary value to be of significance. But of course in theory that begs the question, what are we observing in actual practice?
That will form the basis of my question around how many occurrences do we know exist where the minister has deployed that. As well, by and large, who is it applied to? Are these Canadian vessels or are they international vessels?
In that respect, if we're dealing with international vessels, and again, respecting your point on this, it would seem to me that if we have international vessels—and in the best case scenario, or in the worst case scenario, depending on what side of the seizure you happen to be on—as you indicated, you're going to get the cost of the vessel in terms of cash, if that's the price the minister or a court were to set.
But it would appear to me that if we have an international vessel coming in with IUU fisheries, subject to seizure—so we can prevent the continuation of that offence and secure and preserve any evidence—Canada, as a nation, would be better off having the vessel than the cash, and having that vessel slip out of our waters again and then continue the harmful practice. I assume the point of having the minister retain that discretionary ability is perhaps prescribed by regulation and monitored by their own precedence, which could and would reasonably be set simply by the principles of natural justice. But it would seem to me that Canada would be far better off having that vessel, to prevent the continuation, than having the value of the vessel in cash and watching that vessel leave Canadian waters to continue the damage for which it's been seized in the first place.
Your comments on that are welcome.
12:15 p.m.
Member, Canadian Maritime Law Association
Well, I think that's certainly a valid concern. I guess the fundamental, underlying issue is that by withholding the vessel, pending trial, on the basis of fear of a new offence, you're essentially presuming that they are guilty, so it overrules the presumption of innocence. That's the underlying concern.
Having said that, if you have a frequent offender, I can see where it might make sense to provide restrictions on releasing the vessel if they've had a prior conviction for illegal or unreported fishing. Stemming from the presumption of innocence—if they've been presumed innocent and done nothing wrong yet until they've been found guilty—the real concern is that you're potentially depriving them of their livelihood, especially if they're acquitted.
It's a bit of a balancing act, and the balancing act on the civil claim side has always been a substitution for security, essentially allowing the vessel to go back into operation. The remedy for a frequent offender, I can only suggest, would be to continue to monitor and rearrest.
Perhaps there should be some additional wording in the legislation that would allow the minister or the courts not to release the vessel on bail if there's been a previous conviction.
12:15 p.m.
Conservative
Ryan Leef Conservative Yukon, YT
Fair enough. Of course this isn't the only piece of legislation that exists in the Canadian context, both federally and provincially, that allows for the seizure of any personal property in order to prevent the continuation of the offence, or if the crown or the investigation believes on reasonable and probable grounds that it would afford evidence to the matter before the courts.
It's not subverting the “innocent until proven guilty” angle to seize and retain any level of property to either present it as evidence, or, in the first place, to prevent the continuation of the offence. But an element still remains that allows an application before the courts to have property returned, correct?
In such a case, if that element does exist as a mechanism of protection, the minister would effectively be operating in bad faith on a court decision if he then established a cost-prohibitive structure, or simply refused to find a satisfactory monetary amount. Wouldn't you agree with that?
12:15 p.m.
Member, Canadian Maritime Law Association
Mr. Leef, that's also why, even if this amendment isn't made, the CMLA does not oppose the bill. In fact, we strongly support it. It's simply a matter of concern. Certainly, we would expect the minister and the fisheries officers to behave in a reasonable and well-reasoned manner. It's more about consistency, so no, it's not a critical concern.
