Fisheries Committee on Nov. 1st, 2018

[Ray Harris]

Well, I think the government should listen to the local people, to the communities that are concerned. It should get the answers from us, get the proper story from us to look after the whale. The habitat destruction has happened in the Salish Sea, I would say almost past the point of no return.

I think that the Government of Canada.... I'll describe it this way, if I may. The oceans protection plan is a wonderful thing. It's kind of a mystery, and it's used to shut us up when we go to meetings and the government throws out this oceans protection answer. We think it's a good investment, but we don't really know what it is. It's a mystery. We say the government should also have an investment in the rivers, streams and creeks that the salmon rely on, the estuaries that the juvenile salmon rely on.

That investment in an oceans protection plan is seen by us as a way for the government to increase tanker traffic. That's what we see. We need to see the same kind of investment in salmon habitat protection that would increase the salmon.

[Fin Donnelly, NDP, Port Moody—Coquitlam, BC]

In the final 30 seconds, if, heaven forbid, we lose our southern resident killer whales, what would that mean to your people?

[Ray Harris]

We lost two whales late this summer, and our people went into almost a depression. We felt a very great sorrow for the loss, so I'm not even trying to fathom how we would feel if we lost any more, never mind the whole thing.

[The Chair]

Thank you, Mr. Donnelly.

Thank you to our witnesses who appeared both in person today and on video conference.

As we mentioned, anything that you don't think was heard from you at this session, by all means, please make sure you submit it in writing to the committee, and it will be taken into account for our recommendations.

[Ray Harris]

[Witness speaks in Hul'qumi'num]

[The Chair]

Thank you.

We'll suspend for a moment, just to change witnesses.

[The Chair]

We'll reconvene and get started.

Before we move on, I neglected to mention the presence of Ms. Kelly Block here today, who is substituting in for one of the Conservative members, Mr. Doherty.

Welcome, it's good to see you here.

There is Jean Yip, as well, on the Liberal side, who is substituting in for Mr. Finnigan.

Sorry for that. I apologize.

We'll get to our witnesses as quickly as possible.

By video conference we have Margot Venton from Ecojustice Canada.

Also by video conference, from the Prince Edward Island Fishermen's Association, we have Ian MacPherson, the Executive Director, and Melanie Griffin, Marine Biologist and Program Planner.

Here in the flesh at the meeting is O'neil Cloutier, with the Regroupement des pêcheurs professionnels du Sud de la Gaspésie.

Thank you, all, for attending in whichever manner today.

We'll go right to Mr. Cloutier for his presentation of seven minutes or fewer. I know he's distributed a document, the staff are now trying to copy it in French as well.

Please begin when you're ready, sir.

[O'neil Cloutier, Director General, Regroupement des pêcheurs professionnels du Sud de la Gaspésie]

Thank you, Mr. Chair.

You'll be receiving a series of documents explaining lobster fishing in Gaspésie. You must know what this is about. In the Gulf of St. Lawrence, there are many disparities between the different areas. Gaspésie is a special area, as may be the case elsewhere.

The first document is entitled “Lobster Fishing Profile on the Gaspé Peninsula,” which you can read in English. The document is very short. It describes our organization, the type of fishing that we do and how we coped with the closure of the lobster fishery in Gaspésie in 2018 as a result of the presence of a whale 18 kilometres from the coast.

The second document contains proposed changes. We'll discuss this matter in more detail. You should be aware that, if the measures included in the management measures for right whale protection applied in 2018 don't change, communities and fishers could suffer serious economic effects in 2019, in the event that whales are again found near the coast.

We must explain that, in 2018, at the start of the discussions between the fishers and the Department of Fisheries and Oceans, or the DFO, regarding the management of right whales, the fishers proposed a necessary cohabitation with the whales. We find that won't be able to absorb the costs involved in the aerial surveillance carried out by the DFO in 2018 for much longer.

The fishers should be able to help develop the measures that will protect the whales and should play a very important role in this process. To that end, we're proposing six changes.

First, the current measures focus on a single principle, which is the protection of whales. We think that a second principle must be added to improve the socio-economic situation, namely, the principle of cohabitation between right whales and populations living off the sea.

Our second proposal, explained on page 2, is the creation of an operating corridor for lobster fishers to a maximum depth of 120 feet. We'll gradually bring the traps toward the coastline and at a lower depth according to the presence of whales. In Gaspésie, the lobster fishery is extremely close to the coast, as you can see in document 1. When we finish fishing, we're stuck to the shore. When a whale is seen at a depth between 130 feet and 71 feet, the traps will be brought toward the coast at a depth of 60 feet. If a whale enters the area where the depth is between 70 feet and 40 feet, the traps will be brought toward the coast at a depth of 30 feet. If the whale enters the area where the depth is less than 40 feet, the fishers will remove their traps from the water. Lobster fishers have never had the opportunity to see a right whale up close, at least in Gaspésie, since they fish near the coast.

Our third measure is to reduce the closure duration of the dynamic area to three days if no whales are present in the area observed. When the department closes a dynamic area, the closure lasts 15 days. In our view, this is too long. In 2018, the whale that caused the closure of the fishery was 18 kilometres away from the coastline. It stayed in the area for only two days before retreating from the coast and joining its group. In a case such as this one, a 15-day closure is far too long.

Our fourth proposal is to suspend fishing in a dynamic area if three whales are present at the same time. According the measures in Canada, a dynamic area must be closed as soon as a single whale is present. In the United States, three whales need to be present. If I recall correctly, the American government asked Canada to apply the United States marine mammal protection act. As a result, why should we be more Catholic than the Pope? Why don't our measures align more closely with the United States' measures, instead of being so stringent?

Our fifth proposal is to reduce the grid size applied in the closure of dynamic areas. The grids help manage snow crabs during the moult. The grids are six nautical miles wide by ten nautical miles long. We think that the grids are much too long, since they reach the coast. When a whale is 18 kilometres off the coast, the grids close completely. This affects the coast and prevents lobster fishers from fishing. Yet the whale is 17 kilometres from the lobster fishing gear.

Our sixth and final proposal is to reduce the number of grids closed during the closure of a dynamic area. When a whale is present in one of the grids, the entire dynamic area is closed. The department closes eight grids adjacent to the grid where the whale is located, in order to give the whale sufficient space to swim. We think that the closed area, which covers about 50 square kilometres, is much too large. We're well aware that a whale that approaches the coast will return to the group. The results of the analyses carried out by the Department of Fisheries and Oceans in 2018 are as follows. The group is based in the centre of the gulf. A few whales separate from the group to roam around, but they return to the group one or two days later.

Why should fishers be penalized so severely and for so long? You should know that, in 2018, the lobster fishers in Gaspésie were the only ones who suffered such serious consequences. They incurred operating losses of $2,774,000, which meant a negative impact in the field of about $7 million. This impact is enormous for a medium-sized fishing industry. If the whales arrive in the gulf around the third week of fishing, so around May 15, it would be catastrophic for the fishers.

[The Chair]

Thank you, Mr. Cloutier.

We'll go now to our next presenter, Margot Venton from Ecojustice Canada.

When you're ready, go ahead for seven minutes or less, please.

[Margot Venton, Director, Nature Program, Ecojustice Canada]

I'd like to thank the committee for inviting me to appear today on the issue of protecting endangered whales.

I am a lawyer with Ecojustice Canada, and I am the Director of Ecojustice's nature program. I currently represent conservation organizations that have petitioned the government to issue an emergency order to provide immediate legal protection for endangered southern resident killer whales.

I understand that you heard about some of the specific measures identified in the emergency order petition from Christianne Wilhelmson of the Georgia Strait Alliance on Tuesday.

What I'm going to talk about today is why legally binding and enforceable measures are needed to protect critically endangered species like the southern resident killer whales. We've reached a point where the whales urgently need enforceable and enforced measures to restrict and rebuild chinook fisheries, especially in key foraging areas; to limit disturbance from vessels to ensure that whales can effectively and efficiently hunt, especially in key foraging areas; to aggressively address marine pollution, including the ongoing pollution from vessels; and to plan for and fully address the cumulative impacts of human activity in the Salish Sea before any further increases in vessel traffic are enabled through port development or export expansion.

Strong legal measures are needed today because we have failed until now to address key threats to the whales.

The southern residents were assessed as endangered in 2001. At that time, key threats that continue to be issues today were identified as the cause of decline and as barriers to recovery. These were reduced prey availability, marine pollution and physical and acoustic disturbance from vessel traffic and whale watching. KilIer whale experts confirmed these key threats in 2008 and again in 2011 in the resident killer whale recovery strategy, and then again in 2017 in the action plan.

ln 2011, the Federal Court of Appeal confirmed that the law required the government to legally protect those biological properties that make critical habitat useful for the whales: abundant and accessible chinook salmon; an acoustic environment that allows the whale to hear subtle clicks and distant calls so that they can hunt and communicate; and water free from harmful pollution.

The court also confirmed at that time that there were no laws to address ocean noise in critical habitat. There were no enforceable rules for whale watching, and there were no legal requirements to protect chinook salmon for whales.

Despite knowing about key threats for almost 20 years and being clear about regulatory gaps for almost a decade, there has been little or no action to date to address threats. The limited action that has been taken has largely been through voluntary initiatives, such as, for example, the Be Whale Wise boater education program and whale-watching guidelines. These voluntary approaches have failed to limit the whales' decline.

The emergency order petition identifies enforceable measures to address threats in the short, medium and long term. I don't have time to review it all, but I want to make four key points about the measures identified therein.

First, legally binding and enforceable protection is important for critically endangered populations. Voluntary programs and conservation agreements can play a role in species recovery. However, for species facing imminent threat of extinction, like the killer whales, there must be a regulatory backstop or enforcement mechanism. This is a population where every whale counts. There is no flexibility left in the southern resident killer whale population. They cannot survive the failure of a voluntary program.

Clear and enforced rules work to regulate conduct. As a result of mandatory vessel slowdowns, for example, on the east coast, no North Atlantic right whales were killed by vessel strikes in 2018. We need similarly strong, legally binding rules to protect the southern residents.

Second, in some cases, such as with ocean noise, an emergency order or protection under the Species at Risk Act would constitute the only regulation of an issue. Ocean noise is not currently regulated under our existing Shipping Act scheme or any other law.

Third, using the tools under SARA is faster and more flexible than the normal regulatory process.

It takes a long time to pass or amend laws, as I'm sure you know, and it takes years to develop regulation. According to the regulatory impact analysis statement, consultation on the recent amendments to the marine mammal regulations began in 2002. It took 15 years to regulate approach distances. Sadly, by the time the 200-metre approach distance was made law, our understanding of the science had evolved to show that vessels within 400 metres of whales can interfere with echolocation. We can't wait another 15 years to make that change.

SARA provides innovative tools, such as emergency orders, that enable rapid, targeted, legally enforceable protection of species and their critical habitat.

Emergency orders for specific species tailor action to that species. They are more easily changed than regulations. You already heard concerns earlier in the week that we need to take a flexible approach to addressing issues such as ocean noise, because we don't fully understand the problem and many mitigation approaches are untested. SARA's tools reflect and respond to that situation. We need to use them.

Fourth, we cannot rely on short-term fixes intended to address existing threats to address the cumulative risk of increased development in the Salish Sea. Increasing vessel traffic beyond the current level can't happen until we better understand how quiet it needs to be for whales to forage efficiently and have a regulatory system in place to ensure that we can maintain ocean noise at that level.

Sadly, we've run down the clock on this species. We are past the time for voluntary solutions. The whales need us to use the power of the law, and they need us to do that right now.

Thank you.

[The Chair]

Thank you, Ms. Venton.

We'll now go to the Prince Edward Island Fishermen's Association.

I know there are two people, Mr. MacPherson and Ms. Griffin. I don't know if you're sharing your time or if one person is speaking, but when you're ready, you can start for seven minutes or less.

[Ian MacPherson, Executive Director, Prince Edward Island Fishermen's Association]

Thank you, Mr. Chairman.

Thank you once again to the Standing Committee on Fisheries and Oceans for the opportunity for the Prince Edward Island Fishermen's Association to present on the important topic of mitigation strategies for the North Atlantic right whale.

My name is Ian MacPherson, I am the Executive Director of the PEIFA. Today I am joined by our Marine Biologist and Program Planner, Melanie Griffin. Ms. Griffin has headed up this important file for the PEIFA and has an in-depth knowledge of our suggested strategies.

We would like to give a brief recap of what the PEIFA is advocating on this file, and discuss 12 specific recommendations we have made, not only to Fisheries and Oceans Canada, but also put forward at the recent minister's round table on North American right whales held last week in Halifax, Nova Scotia.

Federal Fisheries and Oceans Minister Jonathan Wilkinson stated last week that we need to come up with protocols that promote a coexistence of the fishing industry and the preservation of the North Atlantic right whale population.

The PEIFA has treated this issue very seriously, as right whale deaths were reported in 2017. Our focus was to provide our members with current and factual information. In April 2017, the PEIFA formed a new North Atlantic right whale multispecies working group to focus on this issue.

Presentations to our committee have included DFO, and renowned right whale expert Dr. Moira Brown. Dr. Brown's presentation helped us better understand the behavioural characteristics of these magnificent mammals.

We would like to note that the fishing sector has been getting much of the focus in mitigation strategies. It is equally important that the shipping sector also provide solutions, as the majority of the 2017 deaths were caused by blunt force related to large vessels.

In concluding my opening remarks, I would also like to express our disappointment that the lobster industry will not be appropriately represented at the upcoming National Marine Mammal Peer Review Committee. This committee will be discussing the risk of interactions with fish gear and collisions with vessels. It is our understanding that three representatives of the snow crab industry will be in attendance.

The primary reasons given as to why we could not participate was that the committee had been pre-selected, and the meeting room was at capacity and increasing the size of the room would create logistical issues.

I will now ask Melanie Griffin to briefly cover off our 12 recommendations.

We would then be pleased to answer any questions the committee may have.

[Melanie Griffin, Marine Biologist and Program Planner, Prince Edward Island Fishermen's Association]

Thank you.

Today, the closures have had little impact on the Prince Edward Island harvesters, but considering there's really only two years of historical data, the PEIFA is aware their distribution could shift based on their food source. This shift could put the whales in direct conflict with P.E.I. fishing grounds.

To monitor the impact on the industry in coastal communities, the PEIFA is preliminarily proposing the following management measure changes. Some of these have been overlapping with those of the Maritime Fishermen's Union as well.

The first one that we have is one that was mentioned by the MFU, and that is depth. To our understanding, the North Atlantic right whales have historically not been spotted in areas with less than 20 fathoms of water. The PEIFA proposes that no closure occur within 20 fathoms unless there is actually a whale spotted in the 20-fathom area of a dynamic closure zone.

Second, in terms of gear type, the PEIFA has harvesters in three different LFAs and the physical oceanography of the areas results in different gear configurations being used by different fishers. There's a document that was already passed out that lists the current standardized configuration, but what the PEIFA is proposing is that gear configuration include some options to better suit the fishing location, the limitations in that area and the physical oceanography of the area. This could include the option of weak links rather than sinking ropes. All species harvested and locations that they're being harvested from should not be painted with the same brush considering that they are all dealing with different scenarios.

Third is dynamic closures near coastal areas. The current grids being used for dynamic closures are all the same size, so this means closing large areas for one whale. While this seems fine in areas with less fishing activities, it could be modified in coastal areas where the abundance of harvesters vastly increases. If the 20-fathom exclusion zone is not an option, then the PEIFA proposes to reduce the size of the grids as they approach coastal areas as a gradient to reduce the amount of coastline affected by closures.

Fourth is the simplified reporting of marine mammals. In the past year, there were a number of different phone numbers and email addresses that needed to be used to report a marine mammal sighting. We could improve the reporting of this if it was simplified and the fishers had simply one phone number to call rather than seven.

Fifth is the snow crab opening. Currently, the snow crab fishery opens the same day for all harvesters. PEIFA proposes that this be flexible to open when it is safe for those who are ready and are clear of ice. This is a quota fishery, so the sooner fishers are on the water, the sooner they can catch their quota and be off the water prior to the arrival of the whales.

Sixth, on static and dynamic closures, the PEIFA proposes that all closures be managed through dynamic closures with no static closure zone. Alternatively, the PEIFA proposes that the static closure happen when a whale is confirmed to be entering the Gulf of St. Lawrence and not a chosen date based on historical data. In 2018, there was approximately one month of closed time in the static zone prior to the arrival of the whales. This closure should be minimized.

Seventh is the removal of traps in a dynamic area. We're proposing that this allowance be extended to 72 hours.

Eighth is the dynamic closure time. Based on the experience in 2018, the PEIFA feels the 15-day closure could be shortened to as little as five days.

Ninth is lost gear. PEIFA would like to see a mechanism to report found gear to offset the numbers presented in terms of lost gear. We run a gear retrieval program here in P.E.I., and all gear that is lost is actually partially found as well but that's not included in the reporting system.

Tenth, the PEIFA is requesting that DFO have a plan in place to promote factual information getting out to the media on what's being done in Canada.

Eleventh, 2019 will be the third year the whales are in the gulf, assuming they arrive, with mitigation measures only in place in 2018. Assuming this is an ongoing issue, the PEIFA feels flexibility needs to be built into the plan to ensure the health of the North Atlantic right whale population while minimizing the impact to the harvesters and coastal communities.

Twelfth, and finally, is the number of whales in a grid to urge a closing. We're suggesting that there be three or more whales present before a grid is closed.

[The Chair]

Thank you.

We'll go right into questioning on the government side for seven minutes or less.

Mr. Morrissey.

[Bobby Morrissey, Liberal, Egmont, PE]

Thank you, Chair.

I compliment both organizations from the east coast on their list of recommendations. They are reasonable recommendations based on fishing practices and activities in the area.

My first question will be for Mr. Cloutier.

Nowhere in the recommendations or your brief was there any reference to mitigating or minimizing the impact on the fishing area versus if DFO has to make a decision, and it's going to err on one side or the other. If one has the option, should precautionary decisions weigh heavily on market access and protecting market access, primarily to the key U.S. market, which is still approximately 60% of our market area, or on protecting the maximum amount of fishing area to be used by fishers?

If you would comment, Mr. Cloutier, and then I would ask Mr. MacPherson to comment as well.

[O'neil Cloutier]

We believe that both concerns are valid. The market issue is very important, but we must still have something to sell. If we can't fish, we have nothing to sell.

All the proposals submitted to the department today, but also in June when it closed the fishery, are strictly intended to allow fishing activity while protecting right whales. We're giving fishers some of the responsibility for ensuring the survival of the whales.

We still believe that it isn't necessarily fishing that poses a risk to the whale, but the way that the fishing is done. We're working a great deal with the department, as has always been the case, and with fishers to ensure that they fish in an appropriate and reasonable manner.

In terms of right whale protection, fishing in an appropriate and reasonable manner means that fishers mustn't leave excessively long lines floating on the water. You must understand that, while hunting, a whale keeps its mouth open to filter the water. If a line is floating parallel to the whale, meaning on the surface, the whale will catch the line in its mouth. However, if the line is vertical and very tight, the line will touch the whale's nose and veer to the left or right. There's much less risk in the second case.

In addition, our fishers practise line fishing, which limits the number of lines. They attach six, eight or ten traps to a single large line that lies on the seabed, rather than using one line per trap.

[Bobby Morrissey, Liberal, Egmont, PE]

Thank you.

Ian.

[Ian MacPherson]

I would add our take. I guess last week we were encouraged by Minister Wilkinson's use of the term “coexistence”, and I think that has to be paramount for any approach that we do. We'd like to move forward here, but in doing the reassessment of how 2018 came in, and some of those regulations, industry was disappointed. We had some good dialogue initially with DFO. Many of us attended the minister's round table—Mr. LeBlanc's round table—and offered our input. Unfortunately, there was no follow-up after that or discourse before the season came in, so a bunch of regulations and new things came in without some good dialogue with industry. I think we've learned from that.

As a committee, you probably heard two or three of these suggestions, maybe more, from different organizations. I can tell you we didn't do this as a group exercise, so the fact that you're hearing a number of these repeated means that they're things that make sense to the fishing industry. We hope that both the federal minister and the committee support these measures being put in place for 2019.

[Bobby Morrissey, Liberal, Egmont, PE]

Thank you.

I'm going to share my time with my colleague Mr. Fraser.

[Colin Fraser, West Nova, Lib.]

Thank you.

Mr. Cloutier, I have a question for you.

I gather that your organization's fourth proposal is to suspend fishing in a dynamic area only if at least three right whales are present at the same time. I gather that these are the American rules and that your organization wants the same rules for Canada.

Is it strictly a matter of remaining consistent with the United States, or are there other reasons for setting the number at three right whales?

[O'neil Cloutier]

The basic principle of the United States marine mammal protection act is that whales must be protected when they're feeding. However, it's recognized that this phase requires the presence of at least a few whales, in general a minimum of three, that hunt together. The whales push the food together and are therefore able to feed.

When we see a single whale, the whale isn't necessarily feeding. Instead, the whale is passing by and roaming around. As a result, we're arguing that the Canadian measures are far too stringent, given the basic principle of the American legislation. This principle, which the United States has asked Canada to apply in its territorial waters, is that the whales must be protected when they're feeding. This requires the presence of at least three whales.

[Colin Fraser]

That's fine, thank you.

[The Chair]

Thank you.

Now, from the Conservative side, we'll have Mr. Calkins for seven minutes or less, please.

[Blaine Calkins, Red Deer—Lacombe, CPC]

Thank you very much, Chair.

To start, I'm going to ask some questions of our witness from Ecojustice.

Ms. Venton, the current closure of the recreational and commercial fishery zone off the southwest coast of Vancouver Island does not follow the boundaries that were agreed upon by a number of stakeholders, including department officials, as a result of meetings in November of last year. In fact, the boundaries that are currently under closure are exactly the same boundaries that were presented by Ecojustice to the minister. It came as quite a surprise to a number of fishing organizations, DFO scientists and DFO biologists that the boundaries they recommended are not the ones that are currently being imposed.

I'm wondering whether any action, any threats of legal action or anything of that sort, was taken by Ecojustice with respect to the minister's office, resulting in Ecojustice getting exactly the boundary closures they wanted, given all the consultations that happened that suggested the boundaries should be different.

[Margot Venton]

I should start by clarifying that several foraging area closures were proposed, and that the actual closures are not identical to the ones set out in our petition. For example, the approaches to the Fraser River are only a partial closure, and the areas along the Juan de Fuca are not actually the same as those proposed by killer whale scientists.

I can't speak to meetings I wasn't at in November—