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.
Conservative
The Chair Conservative Rodney Weston
We'll start this meeting today. Before we get into hearing from our witnesses this morning, I have a small housekeeping item, a motion that I believe has been circulated. Could I have a mover of that motion?
Conservative
The Chair Conservative Rodney Weston
It's been moved by Ms. Davidson:
That the proposed budget in the amount of $3,600.00, for the study of Bill S-3, An Act to amend the Coastal Fisheries Protection Act, be adopted.
On the motion, Mr. Chisholm, go ahead.
NDP
Robert Chisholm NDP Dartmouth—Cole Harbour, NS
Thank you, Mr. Chairman.
Could you explain the motion?
Conservative
The Chair Conservative Rodney Weston
It's to cover the expenses of the witnesses appearing before the committee for the study of Bill S-3.
Conservative
Conservative
The Chair Conservative Rodney Weston
Thank you, Georges.
I want to thank our witnesses for taking the time to appear before the committee today. As you are no doubt aware, we're discussing and studying Bill S-3. We certainly appreciate your taking the time out of your busy schedules to appear before us to make some comments and to answer some questions the committee members might have afterwards. I'm not sure if you have decided amongst yourselves who wants to go first this morning.
Mr. McGuinness, any time you are ready, the floor is yours to begin with your opening comments.
Patrick McGuinness President, Fisheries Council of Canada
First of all, thank you very much for inviting me to attend. I thought what I would do is to start with just a short overview of the Fisheries Council of Canada and then launch into the issue.
The Fisheries Council of Canada or FCC is a national trade association here in Ottawa—so there will be no expenses with regard to my participation today. We represent the industry from coast to coast, from British Columbia to the Prairies in terms of freshwater, to Ontario, Quebec, the Maritimes, Newfoundland and Labrador, and Nunavut. Our main supporters, in terms of those who pay my salary, are basically what we call vertically integrated companies in the fishing industry. That basically means that they own their own fishing vessels and processing plants and are involved in marketing.
We are also very proud that we have major fishermen's cooperatives. These are processing plants that are owned by fishermen's associations in New Brunswick, Newfoundland and Labrador, and Nunavut.
We also have a special category for fleets. We have the BC Seafood Alliance, which basically has 80% of the vessels licensed by the Department of Fisheries and Oceans. In Atlantic Canada we have the offshore shrimp industry, the offshore groundfish industry, and the offshore scallop fleet.
In summary, we have a diverse membership, and what we focus on is addressing national and international issues that would impact upon our industry. We don't get into fisheries allocation issues concerning quotas and so on. That is probably why we have lasted since 1945. Actually, it has been since 1915; in 1945 we changed the name of the organization to the Fisheries Council of Canada.
Another organization I want to bring into the scene is the International Coalition of Fisheries Associations. This is an international coalition of national fisheries associations, such as the Fisheries Council of Canada. In the United States it's the National Fisheries Institute. In Japan it's the Japan Fisheries Association. The founding members of this group are the Fisheries Council of Canada, the National Fisheries Institute of the United States, and the Japan Fisheries Association. At the time the organization was founded, the United States and Japan were the two largest seafood markets in the world, and Canada was the largest fish exporter.
The reason we moved into that type of realm was that we had identified that the United Nations General Assembly and also the FAO's fisheries department were moving into fisheries policy and fisheries management issues that would have an impact on commercial fisheries right around the world. When we looked at their playing field, we found that a number of the global environmental organizations, such as the WWF and Oceana, were registered with these institutions, and so we felt there was a need for a commercial global association to represent the views of the commercial fishing industry.
In the UN and the FAO, the negotiations are obviously among the member states, but during the meetings there is always a time in the agenda when the floor is open to non-governmental organizations, whether environmental or industrial, to make comments and suggestions on the deliberations. In such cases, the International Coalition of Fisheries Associations has always had somebody at those meetings as negotiations were progressing.
We now have 16 national associations among our group: in North America, Canada and the United States; in Europe, the Scandinavian countries; in the Asia Pacific region, Japan and so forth; and also associations from Africa. I am the current chair of that organization. For whatever reason, they have re-elected me for five years straight to hold that position.
With regard to the issue on the table, although it deals with the Coastal Fisheries Protection Act, we're really talking about the UN port state measures agreement.
In terms of FAO and moving in that direction, it really was in response to a very successful campaign by environmental NGOs to focus on this issue in terms of illegal, unreported, and unregulated fisheries. Of course, the NGO communities in the fisheries are very astute. What they recognize is that in the major countries, say, for example, North America, Canada, the United States, and Europe, the retail sector is very vulnerable.
First of all, it's very concentrated, albeit not as concentrated generally as we have in Canada. In Canada we have basically five national retailers. In the United States they have major retailers, but it's a little more fragmented. Also in many countries in Europe, for example, Germany, the U.K., and so forth, they have leading retailers. The environmental community at that point in time made a significant push with the retail community in terms of IUU fishing being a real problem for our industry.
At the end of the day it was in our best interest—both in terms of fisheries management organizations, such as DFO, and also in terms of the industry—to try to respond to that issue of IUU fishing that has emerged. What we found is that the initiative to have a port state measures agreement got it right. It got it right in the sense that the focus became high sea fishing and the transmission of illegal fish on the high seas. Basically we're very supportive of that agreement.
With respect to the Coastal Fisheries Protection Act, I have to admit that the Fisheries Council of Canada hasn't drilled down into the legal aspects of the amendments required by the Coastal Fisheries Protection Act to be able to ratify the port states agreement. We're thankful that from a fisheries point of view in Canada, we do have the Canadian Maritime Law Association that focuses on this issue. I want to compliment the committee for inviting the association to comment on the bill.
The problem that has emerged in trying to address this IUU through an international agreement, the port states agreement, is that it's taking so long. It took a long time to negotiate and it's going to take a long time to be ratified by a significant number of countries to be able to attest that this is the right thing in addressing the IUU fishing issue that has been identified. With that delay the environmental community is never asleep; it's always moving forward. They put considerable pressure on the European Union, which is now the largest seafood market in the world, to do something to address this issue dramatically.
The EU, a couple of years ago, did respond unilaterally. They took the position that we're all guilty of IUU fishing until we can prove ourselves innocent. They introduced legislation where all the shipments from Canada or the United States, whatever, into the EU is licensed. In our Canadian case, the Department of Fisheries and Oceans has to certify with a certificate that the vessel that harvested fish was licensed by DFO, that when the fish was harvested the fishery was open, and that the amount of fish caught was within the quota.
When that requirement came down, the fishing industry, the Fisheries Council of Canada, was in crisis mode because we recognized that we're not Iceland, that we're not, if you will, Alaska, which have very consolidated fisheries. The Department of Fisheries and Oceans has fisheries management plans or oversight of 150 distinct fisheries, and 87% of the vessels they license are vessels of 45 feet and less.
It was an amazing challenge for us to try meet that requirement, and I must admit that it's been one of the highlights of the Department of Fisheries and Oceans' performance over the last couple of years, in that they really buckled down. They hired an excellent Canadian medium-sized IT company that miraculously put it all together, providing a computer program that enabled us not to miss a beat and to meet the timeframe and have that certificate available so that our exports to the EU could continue. Of course, that office originally was operating out of Ottawa, but now it's in beautiful P.E.I. and continues to do a fantastic job.
Also, there were pressures in the United States to move forward with some unilateral action. When they had the reauthorization of their, if you will, fisheries act, the Magnuson-Stevens Act, they, under a lot of lobbying pressure, included their own unilateral action that was distinctly different from the EU approach.
The American approach was that you're innocent until we prove you guilty. Basically what happened is that their fisheries administration, NOAA, would keep track of what was happening in the IUU fishing communities and identify particular countries that they felt were not really addressing the IUU aspect of their fishing. They would then notify that country and enter into consultations to try to get them to improve their practices—with, of course, the threat of market closure if in fact they don't comply. Of course, given that the United States is a $20 billion market with 90% of fish and seafood they eat and consume being imported products, that's quite a threat.
Of course, when the Americans took that approach, we sighed in relief because we knew that because of our reputation, because of the very robust fisheries management regime we have, we would not be a target. In fact, in 2011, they identified six countries. In 2013, five of those countries hadn't made improvements, so they stayed on the list. Currently they have 10 countries that are in negotiations, if you will, to get their approach to IUU fishing updated.
That's been going for a number of years. Again, the environmental groups in the United States, primarily the WWF and Oceana, weren't really quite happy with what was happening. There didn't seem to be any significant action being taken, other than discussions with those companies. So they lobbied Secretary of State Kerry very strongly, who is from Massachusetts, that the United States government had to do something a little more high profile, something like, if you will, the EU was doing on the ground in terms of at least having import certification. Senator Kerry was convinced it was a good issue. I think it could also probably almost be perceived as a legacy issue for him in Massachusetts.
They were successful in establishing a presidential task force on IUU fishing in June 2014, and basically went through a number of issues. The Fisheries Council of Canada and the International Coalition of Fisheries Associations played on those issues. At the end of the day, the task force and the president have agreed on an action plan.
I just want to bring to your attention that in the action plan, the U.S. has said that it will ratify the port state measures agreement. They've given the mandate to the Secretary of State to go out to the world to encourage countries to ratify the port state measures agreement. Also, in current and upcoming trade negotiations, the Secretary of State will put that on the table as one of the issues.
If I could just finish up—
President, Fisheries Council of Canada
In terms of IUU, it's not really a North American issue, in the sense that in order for the retailers to get into the Canadian market, they really have to have some credentials, either sustainability or certification.
As a result of that, ratification by Canada is necessary for us to maintain our leadership image. It's now even more important as a result of the U.S. focus on it. Hopefully, if we get significant ratification around the world, we'll have an opportunity to discuss with the European Union its moving away from its current certification requirement.
I'm sorry for taking so long. I'm certainly available for questions.
Conservative
David Henley Member, Canadian Maritime Law Association
Thank you, Mr. Chair.
Thank you for inviting the Canadian Maritime Law Association to discuss Bill S-3 today. I particularly appreciate being here with my colleague, Mr. McGuinness. As he suggested, while their focus is on the context and the underlying issues, the Canadian Maritime Law Association had a closer look at the drafting. So I hope that our presentations will complement each other.
My comments will cover three brief points. ln the first part, I'll briefly introduce the Canadian Maritime Law Association. In the second part, I'll essentially confirm that we endorse the bill. ln the third part, I would like to reiterate an area where the bill could be improved, and that will mirror our submission to the Senate on this point. Our endorsement of the bill, though, is not at all contingent upon this suggested improvement.
To begin, the Canadian Maritime Law Association is an organization consisting of both practising maritime lawyers across the country and a number of constituent companies and associations involved in the maritime industry. There are currently 14 of those constituent members representing a broad spectrum of the shipping industry. I can name the full 14, but just to give you a sense of the types of organizations, they include the Canadian Shipowners Association and the Shipping Federation of Canada.
The CMLA has its origins in Canada's involvement in international maritime law organizations. Specifically, the Comité Maritime International is an international body that was organized in 1897 to promote uniformity and reform in international maritime law and commerce. The CMLA is Canada's representative to the Comité Maritime International. The CMLA looks at domestic maritime laws, among other things, with one of the goals being uniformity. Since Bill S-3 would basically implement an international treaty that promotes uniform law, it's been of interest to the CMLA for some time. We have been monitoring it and have made similar submissions before the Senate. We've also had representatives on conference call meetings with the Department of Fisheries and Oceans involving the port state measures agreement and its implementation.
The fisheries committee of the CMLA has reported to its membership a number of times throughout the progress of the bill, and we've not received any adverse comments from any of our members. The CMLA agrees with the philosophy of the port state measures agreement. Specifically, because some countries do not effectively control their fishing vessels, we agree that it's necessary for states where fish are landed, including Canada, to take steps to control illegal, unreported, and unregulated fishing.
The CMLA is strongly in support of DFO's initiative to curb this illegal, unreported, and unregulated fishing through the implementation of this bill.
Although we support Bill S-3, there is one minor area where we feel there could be some room for improvement, and it's a particular area of drafting. Clause 8 of the Bill proposes an amended section 13 of the Coastal Fisheries Protection Act. This section retains wording from the existing act that allows seized fishing vessels and goods to be redelivered on posting of a bond in an amount and form satisfactory to the minister. lt also requires consent of a protection officer for release of that seized vessel. This is very similar to the existing wording in subsection 71(2) of the Fisheries Act.
Subsection 71(2) of the Fisheries Act was reviewed by the Nova Scotia courts in the trial decision of R. v. McDonald in 2002, which was upheld by the court of appeal, and in that decision the judge observed that, “It seems there is a failure in the legislation to have the issue of interim possession of these important items determined judicially”. Essentially the judge was critiquing subsection 71(2) of the Fisheries Act, which is largely the same as section 13 of the current Coastal Fisheries Protection Act. The CMLA feels that this is a timely opportunity to make that amendment in the current legislation. We concur with the comments of the judge in that decision of R. v. McDonald.
The CMLA is of the view that both section 71 of the Fisheries Act and section 13 of the Coastal Fisheries Protection Act are fundamentally flawed because they provide that the security to be granted for release of a vessel must be in a form and amount satisfactory to the minister as opposed to a court. As I've said, this provision has been interpreted by at least one court to mean that if no form of security is satisfactory to the minister, the vessel need not be released.
Our suggestion is a modest improvement to the bill. It would be a proposed change to section 13, similar to what was proposed by the government in 2007 when it looked at changing subsection 71(2) of the Fisheries Act, 2007. That was in Bill C-32. Unfortunately, that bill died on the order paper, so the amendment was never implemented.
But the amendment required is very simple. It just changes the determination of the form and the amount of the security from the minister to a court or tribunal.
When a fishing vessel is seized by the Government of Canada pending trial, it can take one to two years, or even longer in some cases, to work its way through the courts. The underlying concern is that during this time the owner of the seized vessel cannot use the vessel, and it very likely will put the crew out of work. Given the presumption in our legal system of innocence until proven guilty, preventing the vessel from working pending trial seems problematic. It amounts to a penalty prior to any finding of guilt.
The Fisheries Act and the Coastal Fisheries Protection Act have always had provisions whereby owners of these vessels could post money to get the vessels released pending trial. Normally in that case, the penalty that the crown is seeking would be roughly what they're seeking for security to release the vessel, sometimes slightly in excess of that. This allows the asset, then, to resume working pending the outcome of the trial.
The problem with the current provisions in both Fisheries Act subsection 71(2) and section 13 of the Coastal Fisheries Protection Act is that they essentially say that the court can allow the vessel to be released, but they also say that the minister and not the court decides on the amount and form of the security. The fundamental concern we have with this is that this amount and form of security should be determined by an impartial and independent person, such as a judge or an administrative tribunal. With the present version of section 13, this task is essentially performed by the minister, which effectively in most cases means that it's the fisheries officer conducting the investigation who decides upon the amount and form of security.
The earlier amendment recommended in Bill C-32 to the Fisheries Act would have substituted a court or tribunal for the minister. I recognize that there is no tribunal associated with the Coastal Fisheries Protection Act. In the present case, the CMLA is of the view that section 13 could refer only to a court rather than the minister.
I'd also note that in the Coastal Fisheries Protection Act there's a requirement in section 13 that a protection officer “consent” to the vessel being released. The CMLA also suggests that this reference be deleted because, similar to the minister, the protection officer is not necessarily an impartial and independent person. In our view, the reference should also be to the court, or the court should decide that.
To summarize, Mr. Chair, the CMLA proposes this minor amendment to address what we see as largely a procedural concern. We think it's timely to fix what we see as a minor flaw in the legislation. We believe, given the presumption of innocence until proven guilty under our legal system, that the court is best positioned to set the form and amount of security and that this change would improve the bill. Regardless, the CMLA does agree with the philosophy of the legislation and endorses Bill S-3.
Subject to any questions, those are my submissions. Thank you.
Conservative
The Chair Conservative Rodney Weston
We'll start our 10-minute rounds of questions, beginning with Mr. Chisholm.
NDP
Robert Chisholm NDP Dartmouth—Cole Harbour, NS
Thanks very much, gentlemen, for appearing and talking to us about Bill S-3.
I was interested in going over the transcript from the Senate fisheries committee hearings back in 2013. I have a couple of questions relating to your presentations from your organizations today and then.
First of all, Mr. Henley, the point you raised about the amendment is something that was raised by your colleague, Mr. Caldwell, back in 2013. It appears that it wasn't particularly well received.
NDP
Robert Chisholm NDP Dartmouth—Cole Harbour, NS
I am interested in the consequence in terms of a potential prosecution if that change is not made, given what you've said about the R. v. McDonald case in Nova Scotia. What is the potential consequence of a prosecution if we continue to allow the minister and/or the protection officer, in different cases, to determine the amount and form of security?
Member, Canadian Maritime Law Association
That's a good question, Mr. Chisholm.
The way the court would normally work, if this were to be at the court, is this. Under the Federal Court rules, typically what will happen, if a vessel is arrested, for example, for a civil claim, is that the court will release the vessel on bail set at security for the amount of the claim up to the value of the vessel, essentially substituting the security for the vessel. In the case of a prosecution, we would think that from an equitable perspective it would be the same. But the fundamental issue here is that the court is bound by stare decisis to follow its own precedent and its governing rules, whereas the minister or a fisheries officer is not. So in theory, the minister or the fisheries officer could set an amount that is prohibitive or could simply refuse to release the vessel by not agreeing to the form of security. They're not bound by the same desire for consistency as the courts.
The concern, as was recognized in R. v. McDonald, is that setting an amount that is prohibitive essentially prevents the vessel from being released at all, and in a situation in which the alleged offender is particularly egregious, you can perhaps understand that. But were somebody to eventually be acquitted, that means that for two years or three years, perhaps, they will not have had the use of their vessel.
NDP
Robert Chisholm NDP Dartmouth—Cole Harbour, NS
And could the determination that the penalty was egregious have an impact on the ultimate decision by the courts?
Member, Canadian Maritime Law Association
From a natural justice perspective, essentially what you're doing by providing bail or security is substituting whatever that form of security is for the vessel. Perhaps the logical way of looking at it is that the most you're ever going to get is the value of the vessel, simply because, were you to proceed to prosecution and the court decided to forfeit the vessel, all you're going to get is from selling the vessel.
And frankly, I think that releasing the vessel in exchange for cash security or something like that is probably easier for the crown, because they won't have to go through the process of selling the vessel eventually.
NDP
Robert Chisholm NDP Dartmouth—Cole Harbour, NS
Okay.
Thank you, Mr. Henley. By the way, I hope your clients recognize the lengths to which you've gone to get here.
For other members of the committee, Mr. Henley is from Dartmouth, and his street still has not been plowed out. Everybody knows that this is not a federal issue, and I will be on the phone shortly to pass on to the municipal officials that this needs to be addressed.
Anyway, thank you, Mr. Henley, for showing up.
Mr. McGuinness, you raised the issues of the EU and the United States acting unilaterally to deal with the illegal, unreported, and unregulated fishery. You saw this international agreement, if Canada ratifies it and brings in this legislation, as generating some momentum and releasing some of the hardship burden that you suggested was being applied to your members by the EU in particular.
Your members must be somewhat frustrated that we haven't made much progress. Here it is, the spring of 2015, and we still have some way to go ourselves at passing enabling legislation.
