Fisheries Committee on June 17th, 2019

[The Chair, Liberal, Ken McDonald]

I call the meeting to order.

Pursuant to Standing Order 108(2), we are studying the adequacy of enforcement and penalties for infractions of the Fisheries Act.

For the first hour, by video conference, we have Bernie Berry from the Coldwater Lobster Association.

From the Prince Edward Island Fishermen's Association, we have Robert Jenkins, President, and Ian MacPherson, Executive Director.

As an individual, we have Alexandra Morton, Independent Biologist with the Pacific Coast Wild Salmon Society.

We'll start with Bernie Berry from the Coldwater Lobster Association. For your opening statement, you have seven minutes.

[Bernie Berry, President, Coldwater Lobster Association]

Thank you.

Good day, everyone. Thank you for the opportunity to speak to the Standing Committee on Fisheries and Oceans about the enforcement and penalties for infractions under the Fisheries Act.

It is our opinion that the regional capacity to carry out enforcement and protection provisions of the Fisheries Act lacks the tools to carry out such a task. We believe there is a serious problem with the lack of funding for assets on the water and for personnel in the field.

While technology certainly plays an important part in enhancing the capabilities of DFO, nothing can replace the physical presence of boats on the water, either DFO or Coast Guard, or having more officers in the field. It will take more government departments, such as CRA, Canada Border Services Agency, CFIA, RCMP, etc., along with DFO, to properly enforce the regulations and penalties for the protection of our fisheries under the Fisheries Act.

This type of collaboration is a necessity because of the emerging problems our fisheries face and the sophistication of some of the illegal activities taking place. The department must work coherently and share information and concerns; operating in departmental silos will simply not work going forward.

On the penalties side of enforcement, there must be a more robust response to convictions. The fines attached to convictions, in most cases, amount to nothing more than the cost of doing business for the perpetrator. These penalties should reflect the serious impacts that certain violations have on the species in question and the fishery in question, and we must not lose sight of the fact that the violation has been carried out against a Canadian resource. The fines should be large enough to act as a deterrent, although it could cause hardship to the guilty party.

The same holds true for suspension of licences. Usually a penalty like this is either applied during the slowest part of a fishery or is applied for a period of several days to a couple of weeks, which does not have the intended penalizing effect. The penalties must be a deterrent to illegal activity.

The U.S. treats fishery violations in a manner similar to criminal activity. They impose much harsher penalties, including the permanent loss of a licence for repeat offenders.

I will describe some of the issues pertaining to enforcement that we'd like to bring to light.

The first is the enforcement of licence conditions. Without this, DFO has no legitimacy in the eyes of many fishermen. When considering the inshore lobster fishery licence conditions, DFO must address pot limits, lobster fishing area boundaries, legal size of retained lobster, non-retention of berried females, etc. These are all areas within the licence conditions that must see greater enforcement and much more vigorous prosecution.

An example of fishermen losing respect for licence conditions occurred this past season here at LFA 33, 34 and 35. A new DFO regulation for mandatory bycatch data collection was implemented in the licence conditions for the 2018-2019 lobster season. Fishermen who were not registered with the recognized fishermen's associations that were overseeing a bycatch monitoring pilot—approved by DFO to address the department's need to capture bycatch data in the lobster industry—required a hail out for fishing. Fishermen not joining the fishermen's associations' pilot, according to the licence conditions, had to hail out at a 100% level, which means that every day they went fishing, they had to hail out. DFO did not enforce this licence condition at all, for the entire season. This created an atmosphere of confusion and mistrust and a general loss of respect for the department. The associations became caught up in the unnecessary confusion resulting from the lack of enforcement. Such a lack of response has created an atmosphere in which fishermen have begun to question the validity of all licence conditions.

Second, there is a growing problem in the industry with cash sales, along with the very real possibility of money laundering. Although cash sales have been around for a significant amount of time, they seem to be getting more and more prevalent. That could be a result of the influx of illegal money accumulated elsewhere and then made somewhat legitimate by buying our product for cash. This leads to significant misreporting of catches and misleading reports of the values of landings.

Undercutting prices on the shore or in the marketplace affected numerous individuals in the fishery. In this example, if multiple federal agencies were working together, they could potentially curtail these activities. The need for more fishery officers conducting checks and/or investigations on the ground is also highlighted in this instance.

There must be better enforcement of all licence conditions, including increased surveillance of the LFA 34 50-mile line, along with the Brown's Bank lobster closure area, LFA 40; stricter enforcement of compliance with the pot limit of 375; and stricter prohibition of the landings of undersized lobsters and berried females.

Another thing DFO could do is target known violators rather than an entire fleet.

All the restrictions I mentioned must carry substantial monetary penalties and possible suspension if compliance is to be maintained.

In addition, as previously mentioned, DFO needs more assets, such as boats and personnel, and needs to expand its technological tools to help in the orderly running of the fishery and to maintain the sustainability of the fishery. This would also benefit our product in the marketplace.

The Fisheries Act also addresses the importance of rebuilding stocks and maintaining healthy stocks. Enforcement plays a critical role in this initiative, along with science and working with industry to increase the knowledge base for the species in question.

Moving forward with the updated Fisheries Act, it is going to take a concerted effort by all stakeholders and rights holders in government and industry to help improve enforcement and protection of the fishery so that all participants are contributing and playing by the same set of rules and are regulated by a much more aggressive penalty phase.

Thank you for the opportunity to present on this very important topic.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Berry.

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

Gentlemen, I don't know if you're sharing your time.

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

Thanks very much.

It's just Ian MacPherson here this afternoon. Captain Jenkins had to leave when our plans changed on the video conference. He sends his apologies.

Good afternoon, Mr. Chair, and members of the Standing Committee on Fisheries and Oceans.

My name is Ian MacPherson, and I am the Executive Director of the Prince Edward Island Fishermen's Association. We are here today to discuss the very important topic of the adequacy of enforcement and penalties for infractions of the Fisheries Act.

The Prince Edward Island Fishermen's Association represents approximately 1,300 core fishers from six local island-based organizations. Our members fish tuna, lobster, herring, raw crab, scallops, mackerel and groundfish in addition to estuarial species such as eel, silversides and smelt.

We contribute 30% of the overall Canadian lobster harvest, with a direct financial contribution of $250 million. Our sector provides close to 9,000 industry-related jobs. The fishing contribution to the provincial GDP is the highest percentage in Canada.

Needless to say, the fishery is not only a significant economic driver but its sustainability is also vital to the future of Prince Edward Island. The PEIFA prides itself in effecting rationalization projects for various species in both the past and present. These initiatives retire licences permanently and reduce traps and gear in the water.

For example, rationalization of lobster licences that began in 2010 and continued until 2013 in LFAs 25 and 26A took over 44,000 traps out of the water on Prince Edward Island. We do not want to see these significant efforts backslide due to illegal activity.

In our submission to Fisheries and Oceans Canada dated July 31, 2018, the PEIFA cited violations such as fishing in closed waters, fishing during a closed time, fishing with prohibited gear and recreational fishing for groundfish during a closed time. Input was requested on the suggested fine amount of $500 per infraction. The association's position is that these fines are insufficient to deter this type of infraction.

It is also the association's position that commercial and recreational fishers should be fined the same amounts for a violation, as illegal activities impact the resource as a whole.

We also suggest an increase of fines for repeat offenders. In the past five years, there have been steady price increases in most species. Operating costs have escalated, but a portion of these price increases have been related to expanding marketing efforts that have assisted in increasing demand. Canadian seafood enjoys a strong positive image in the worldwide marketplace. Unfortunately, these increases in value can also lead to more illegal activity. As some of these illegal activities are market-driven, it is important that enforcement priorities and deterrents be reviewed on an ongoing basis.

Illegal fishing is a worldwide problem, and many efforts are being put in place to plug the gaps in international export channels that allow illegal product to be bought and sold. At the local level, we must ensure that our stocks are preserved for future generations.

In addition, certain international certifications, such as Marine Stewardship Council, or MSC, may be impacted if stocks of primary or bycatch species decline. One area of current concern is the declining availability of certain lobster baits, the lack of commercial alternatives and the pressure to reduce bait costs through additional bait harvesting. In addition, it is important that only approved baits be available, as many bait alternatives are being sought both locally and internationally.

A significant concern revolves around rock crab, as this is the primary diet of our Atlantic lobster. Any serious depletion of the rock crab stocks could result in significant damage to the lobster industry. The PEIFA has been, and continues to be, an advocate for more enforcement resources to be devoted to the field. Any new processes put in place should have a primary focus of allowing conservation and protection officers to spend more time on the water for investigative work.

Over the past three years, the PEIFA has submitted numerous victim impact statements when requested by conservation and protection officers.

These impact statements are used in court proceedings. These letters address the concerns surrounding the impact on the overall resource or other potential negative impacts to the species.

The PEIFA has recently noticed an increase in fines for some local infractions, and in some cases a suspension of eligible fishing days. The suspensions have been applied to upcoming seasons if the current season has concluded. We feel these types of penalties are steps in the right direction.

It is the association's position to identify the areas of concern, but we do not feel it is our mandate to suggest specific fine amounts or remedies. We want to underscore our concern that fines or other remedies for committing an illegal activity not be viewed as a cost of doing business.

In conclusion, our recommendations are as follows.

Number one, $500 fines are insufficient for fishing in closed waters, fishing in closed times, fishing with prohibited gear, and recreational fishing during a closed time.

Number two, we advocate that the fines to the commercial and recreational fishers should be the same.

Number three, we suggest that fines escalate for repeat offenders.

Number four, we request that additional resources be supplied to DFO conservation and protection units.

Number five, rock crab violations should be a priority for enforcement, and attention should be paid to other bait fisheries.

Number six, we suggest that priorities of enforcement be reviewed as market conditions change.

Number seven, penalties should be reviewed along with a five-year review of the act.

Protection of our valuable marine resources is the responsibility of harvesters, regulators, the criminal justice system and parliamentarians. By working together, we can stem the tide on illegal fishing activity and the damage it does to our valuable seafood resources in Canada.

Added to our presentation today is our response letter, dated January 31, 2018.

When appropriate, I would be pleased to address any questions you may have.

Thank you.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. MacPherson.

We'll now go to Alexandra Morton for seven minutes or less, please.

[Alexandra Morton, Independent Biologist, Pacific Coast Wild Salmon Society, As an Individual]

Thank you for allowing me to participate.

While Fisheries and Oceans Canada characterizes its regulation of salmon farms as rigorous and tells Canadians that these regulations support the health of wild fish, this is not entirely accurate, on three substantive issues: bycatch in the farms, sea lice proliferation on farmed salmon and the spread of piscine orthoreovirus.

With regard to bycatch, in January of 2012, I charged Marine Harvest under the Fisheries Act for illegal possession of juvenile wild salmon and herring. The Department of Justice assumed these charges and prosecuted Marine Harvest. The case number is 14891-1. Marine Harvest pleaded guilty and was fined $4,000. With each grow-out, Marine Harvest is making approximately $24 million per farm. I don't think the fine of $4,000 was enough to solve this problem.

Beginning in 2017, first nations and others began boarding salmon farms in British Columbia and putting underwater cameras into the pens. These cameras captured the images of thousands of herring in each of the 10 or more pens in all the farms between Campbell River and Alert Bay and in Clayoquot Sound on the west coast of Vancouver Island.

The farmers and DFO refused to say whether these fish were released or not. People filmed large schools of herring in farms long after the Atlantic salmon had been harvested. There was no explanation as to why these fish were being held and what their fate was. The salmon farming industry is an unregulated herring fishery. We don't know if DFO is allowed to release these fish, because they have now been exposed to the sea lice and pathogens in the farms.

Now, to focus on sea lice for a moment, 19 years ago I reported sea louse outbreaks in wild salmon near salmon farms, as has happened everywhere else in the world where this industry operates among wild salmon, yet this year, we experienced the worst sea louse outbreak on young salmon in the history of this industry. In 19 years, there really has not been enough progress.

I did a freedom of information request on DFO communications regarding the sea louse outbreaks in the last few years, and in document A-2018-00799, the reason for the outbreaks becomes clear: DFO veterinarians report that the drugs they've been using in the farms no longer work. Everybody knew this was going to happen, because drug resistance development in sea lice has happened everywhere farms are operating in the world.

Importantly, internal emails chronicle DFO veterinarians struggling to make the companies comply, because they could see that wild salmon conservation units of concern were being killed by the lice coming out of the farms. Cermaq, in this case, promised to borrow equipment from Marine Harvest to wash off the lice, but then that equipment wasn't available. They said they would harvest the fish, but that took so long that the entire outmigration period of March to June passed, and they still had not harvested all their fish.

Senior conservation and protection staff were contacted because people wanted to charge the farms. DFO wanted to charge the farms for not complying, but this senior conservation and protection staff member said that because of the way the conditions of licence are written, the rules were unenforceable. Basically, the company just has to have a plan and then execute the plan, but it doesn't matter if the plan was carried out at the right time or if it worked. He recommended to senior staff that this regulation be tightened up and gave them specific instructions, but it was not done in 2018. We had another outbreak this last year, so it didn't happen in 2019 either.

I don't consider this to be just a mistake when senior staff have ignored their own staff's recommendation that these regulations be changed.

The final point is on this piscine orthoreovirus. It's a disease agent. Under Canadian law, paragraph 56(b) of the Fishery (General) Regulations, transfer of fish infected with a disease agent is not permitted in Canada, but the Minister of Fisheries and Oceans refuses to acknowledge this law. I have won two lawsuits now against the Minister of Fisheries and Oceans.

The 'Namgis First Nation also has won a lawsuit against the Minister of Fisheries and Oceans, saying that it is unlawful to not be screening farmed salmon for PRV.

On February 4, the Federal Court gave Minister Wilkinson, our current minister, a four-month extension to comply with the most recent court win. However, on June 4 the minister announced that they had made a decision and asked us to review the new regulations that he would like to insert under section 56. This new regulation would weaken the current regulation. It would allow infected fish to go into the water through a complicated assessment process that is so difficult for them to understand that the document actually suggests that DFO might have to go to the Department of Justice to determine on specific transfers if it is thought that there might be a medium risk to wild fish. It's a change in the regulation that seems to make it very difficult for them to consider how they would go forward.

DFO research reports that PRV appears to cause acute disease in chinook salmon. We know that chinook salmon stocks are collapsing on the southern B.C. coast, where all the farms are. We know that the southern resident orcas are going extinct because of a lack of chinook, so it's a looming problem for British Columbia.

In summary, I just want to say that these three regulatory failures—sea lice, bycatch and control of disease going into these farms—are resulting in the overfishing of herring populations that are currently under protection from other forms of fishing. These failures are causing the death of the majority of outmigrating juvenile wild salmon wherever the salmon farms lose control of their lice, as well as the steady leakage of a disease agent known to impact wild salmon species, which is pushing them towards the endangered and threatened status that they increasingly have.

My recommendation is that this industry finally be mandated to move into closed containment, because I suspect that the reason for non-compliance and the softness of the regulations is that the industry cannot be run in a profitable manner under Canadian laws. For example, the law says that there are to be no diseased fish going into the farms and that you have to kill your fish if you can't control the lice. This is what the law basically is saying, but nobody will enforce it because I don't think the companies can then actually make a profit under Canadian law. That's why we have this regulatory problem.

Thank you so much.

[The Chair, Liberal, Ken McDonald]

Thank you, Ms. Morton, for that.

We'll now go into our question round.

I know the time, but in looking at it, we only have one witness in the second hour. Probably what we'll do is a full round of seven minutes in this part of the session, and at the end of the second hour, we'll take a few minutes just to catch up on committee business.

On the government side, we have Mr. Fraser. You have seven minutes or less, please.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair.

Thank you to all the witnesses for joining us today.

I heard a number of excellent points made, and I'd like to start with you, Mr. Berry. I wanted to bring this study forward and I know we're at the end of the parliamentary session, so we're unlikely to be able to provide a report, but having this evidence on the record is important.

I want to go through a couple of the things that you mentioned. First is the adequacy of the number of fisheries officers.

I've learned in my time as member of Parliament for West Nova the amount of work that we're asking the fisheries officers to do, the ground that they have to cover and the number of fishing enterprises that they are responsible for monitoring. I know that our government has put in $50 million and will be hiring an additional 100 DFO officers for all of Canada. That's a good start, but we're obviously not going to see the impact for a little while on the ground, and there needs to be more done.

What can you say, Mr. Berry, about the adequacy of the number of officers and of the equipment they have? I know that you mentioned that they need more boats and all of that for patrolling LFAs 33, 34 and 35 all around southwestern Nova Scotia.

[Bernie Berry]

Thank you for the question, Mr. Fraser.

You mentioned 100 new officers for the country. Actually, I think that even the region alone could have another 100-plus officers. They are needed.

They're simply understaffed. Every office is understaffed, so they have to pick and choose what violation they are going after. Some violations, we believe, are simply being ignored because they don't have the manpower to take on that kind of stuff.

One thing I'd like to add about the boats themselves, the working platforms, is that a lot of these are...I hate to use the word “antiquated”, but they are old, especially in the case of the smaller coastal vessels and stuff like that. They're really old. They don't have the capacity. Our fishery has moved into something like an offshore fishery, especially in our fall section. Really, the level is actually disheartening.

Listen, the fishery officers are doing what they can, but they really are handcuffed in what they can accomplish.

I mentioned technology. As an example, the use of drones on some of the boats for monitoring and stuff like this, Mr. Fraser, would help, but the maritime region needs a big boost. As you said, it's better than it was, but I don't think we're anywhere near the level that it has to be to get some true enforcement here.

[Colin Fraser, Liberal, West Nova, NS]

Thank you for that.

I want to move to another thing you mentioned in your presentation and that I had jotted down before today's meeting. It is that the penalties have to be not just the cost of doing business. I think you're spot-on there.

In the lobster industry in particular, we see that the growth of that industry in southwestern Nova Scotia and across Atlantic Canada has been a boon to the local economy. It's been doing extremely well. We have to make sure that conservation is top of mind when we're talking about enforcement, but I wonder, since the lobster industry has been doing so well in southwestern Nova Scotia, if the fines and penalties imposed for breaching the Fisheries Act have not commensurately gone up and that it is becoming just the cost of doing business. Would you agree with that?

[Bernie Berry]

Absolutely. This fishery alone, in LFA 34, is worth approximately $400 million on the shore. LFA 34 will land somewhere in the range of 50 million pounds a year. The average price fluctuates somewhat, but it's worth $400 million, and that's on the shore.

I tend to think that the average boat now in LFA 34—it's a good thing—is probably stocking $350,000 to $400,000 per season. To impose a fine of a few hundred or a few thousand dollars is almost bordering on laughable. There's no penalty there.

[Colin Fraser, Liberal, West Nova, NS]

Right.

[Bernie Berry]

It really has to be firmed up. The penalty has to cause somewhat of a hardship to the individual in stuff like this. I mean—

[Colin Fraser, Liberal, West Nova, NS]

I know that repeat offenders—

[Bernie Berry]

I don't know how high to go, Mr. Fraser—

[Colin Fraser, Liberal, West Nova, NS]

Yes. For repeat offenders, that is factored in when a judge is imposing a sentence. Repeat offenders are supposed to be getting higher fines, but you're saying that it's still not enough.

[Bernie Berry]

No. Even the repeat offenders, Mr. Fraser, are nowhere near to getting what they should be. Again, I use the model of the Americans, especially in the Maine lobster fishery. More or less, if you have three substantial strikes, three substantial convictions, they simply take the licence, and you're no longer part of that fishery. You don't have that privilege. We're just tapping these individuals very lightly on the hand, and they're...I won't say “destroying”, but they are inhibiting a Canadian resource. This looks bad on the whole industry. Again, if it looks like we're not enforcing rules in our fishery, this can even have a negative impact on the marketplace.

[Colin Fraser, Liberal, West Nova, NS]

Because my time is limited, I want to turn to the issue of illegal product and the black market, which is a real problem, particularly in the lobster industry. I know you touched on this issue. A black market obviously suppresses the value of the legally and responsibly caught product. It operates in an unregulated market.

I think you raised a really important point, which is that we don't know what those landings are because it's an untracked and unregulated market. We can't even judge its impact on conservation, which has to be the paramount consideration for government. Ensuring this fishery is sustainable for the long term is paramount.

Would you agree that all of those factors mean that it's super-important that we actually get our hands around the black market issue?

[Bernie Berry]

Oh, it is. It's absolutely important.

We can only anecdotally put a number on what we think the black market is worth. We tend to think it's worth roughly 10% of what's landed. You're looking at potentially $40 to $45 million in the black market, just in one LFA. It translates back into x number of pounds being unrecorded and things like that.

Again, we need to know specific numbers of our landings, especially moving forward, with all the environmental changes. We really need to know what is coming out of the water, where it's going, and all these variables.

[Colin Fraser, Liberal, West Nova, NS]

Great. Thanks a lot, Mr. Berry.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Fraser.

We'll now go to the Conservative side and to Mr. Arnold, for seven minutes or less.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Thank you, Mr. Chair.

I want to thank all of the witnesses for being available today, as we get close to winding down our parliamentary session.

I first want to state that it's disappointing that I don't recognize any of the witnesses from the Conservative list of requests that we sent in. We certainly had some very pointed questions we were going to ask of DFO staff and former staff. Unfortunately, I don't see any witnesses here today who can probably speak to the amount of unreported, unregulated, illegal fisheries that are taking place offshore on the high seas.

We have seen millions spent—and I mean millions spent—year after year, supposedly to combat unreported, unregulated, illegal fisheries offshore, yet in any inquiries that I've ever taken a look at, there have never been charges laid.

There have been investigations. There have been allegations, reports going to the home countries and home ports of the vessels in the infractions, but no reports ever come back. Millions of dollars have been spent in this area that could have been spent within Canada, possibly making a difference here.

I also want to touch on balance. How do we find a balance in enforcing the Fisheries Act and fisheries violations?

When I talked to fisheries officers in my riding back home about some of the 2012 changes that were made to the Fisheries Act, they said that some of those changes were actually very beneficial. The changes gave them the ability to assess the situation. Instead of going through months and possibly years of investigative work to gather evidence in order to take the case to court, and then laying charges against communities, against contractors, even against the province for work that was done, and then spending months and possibly years as the case worked its way through the courts, the DFO enforcement staff were simply able to assess the situation, state that the work was done without permit, and immediately order the work to be repaired or mitigated.

These kinds of changes were taking place. These were big issues on the ground that could have tied up fisheries officers for days, weeks, months and possibly years on a case that was simply cleaned up with a few days of work. Issues were solved that way.

Getting back to some of the questions here, how big an issue is the illegal, unreported and unregulated fishery in each of your areas?

Ms. Morton, I know you are on the west coast. The other witnesses are from the east coast.

Ms. Morton, are you available to answer first?

[Alexandra Morton]

I really don't have any information on the illegal fishery, other than the current herring fishery that is going on in the salmon farming industry, which I see as an illegal fishery. I don't know anything about commercial fishermen fishing illegally.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Would anybody from the east coast care to chime in?

[Bernie Berry]

It's so hard, as I indicated to Mr. Fraser, to put a number on it. There seems to be an uptick in all the fisheries, mainly because of the value of the product, whether it be a finfish like halibut, or crab or lobster. The value of them is going up, which is good for the industry as a whole, but it brings in a lot of unsavoury characters. There has been an uptick in a lot of the species along our shoreline, not just lobster. Again, it's hard to put a number on it. It will only be anecdotal evidence, but there has certainly been an uptick in cash sales, meaning illegal activity.

Unfortunately, I still believe that more boots on the ground and more officers and stuff like this would be a deterrent. It wouldn't be the total answer, but it would be a deterrent.