Foreign Affairs Committee on Oct. 6th, 2009

[Raynald Blais, Bloc, Gaspésie—Îles-de-la-Madeleine, QC]

I thank you, but if I may, I will put the question to you in a different manner.

I would like to talk about the massacre of cod—I am using this word advisedly—that has been committed in the past few years by foreign countries outside of this 200-mile zone. Would the disappearance of the cod be avoided with the new convention that is being put on the table?

[David Balfour]

As I said earlier, I think the historical context was different. At the time this convention was enacted, many of the other modern management instruments did not exist. I don't believe there was the same appreciation or understanding of the implications of overfishing. That is now well known and understood by all.

I believe that with the convention, with the spirit of cooperation that we see at NAFO, with the imperatives that are imposed on all members of NAFO by their own industries to ensure that they have the stability, certainty, and opportunity to fish continued rebuilding stocks, the public and fishing nations and NGOs....

What is occurring in markets is that it is a completely different world than what existed under the previous convention prior to the collapse of cod. Because of the measures that have been taken with respect to the 3M cod on the Flemish Cap, which has now been reopened after ten years of moratoria, the members of NAFO came together in a cooperative spirit in response to a proposal that came from the Canadian delegation to see, as opposed to an adoption of the old ways, which would have permitted a 10% bycatch in other fisheries of this 3M cod because the stock was open, the continuation of the protocols that were in place when the stock was under moratorium at a 5% bycatch. So we would carefully manage the rebuilding of this stock.

They also agreed that bycatches would count against the quotas of 3M cod for those who had quotas. This is all indicative of a new approach, and one that we would expect to be continuing. There are expectations for this regional management organization to be able to operate to high standards in a transparent way.

[The Chair, Conservative, Kevin Sorenson]

Mr. Blais.

[Raynald Blais, Bloc, Gaspésie—Îles-de-la-Madeleine, QC]

This will probably be the last question of this round. You said that the two-thirds rule was a new advantage created by the new convention. However, I remind you that the two-thirds rule can also be to our disadvantage because if the 50% rule is no longer applicable, it is gone for any consideration. In other words, if we want to impose conservation measures within the new NAFO, it will be just as difficult to impose such measures, because the two-thirds rule will apply in that case as well. The two-thirds rule could be to our benefit, but it goes both ways. The difficulty remains, be it for something good or something bad.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Blais.

Mr. Balfour, very quickly, please.

[David Balfour]

Very quickly, as I've said, we see operating by way of consensus, as we did, as I explained, around the arrangements about bycatch for the reopened 3M cod fishery. The two-thirds voting rule will likely come into play or be invoked possibly when it comes to a question of shares. What are the quota shares between the NAFO parties? This was a requirement that our Canadian industry placed a heavy emphasis on seeing obtained, in order that they could see more safeguarding of their historic shares of the fisheries that were closed and subject to moratoria, and that their sacrifice and their history during the closures would be respected in terms of being able to have the certainty and predictability of the use of the resources going forward. Obtaining a two-thirds vote will be quite daunting and challenging within NAFO to adjust the quota shares.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Balfour.

We'll move to the government side with Mr. Lunney.

[James Lunney, Conservative, Nanaimo—Alberni, BC]

My thanks to our witnesses for being here today.

On the committee side, I see a lot of fishy colleagues who've been on the fisheries committees for many years. They all seem to be present in the room today. Obviously, we have the attention of the fisheries crew.

A lot has changed since the original agreement on NAFO in 1978. Those of us who sat around the table in fisheries for a number of years heard a lot of objections from the fishing community. We also heard about the challenges that the department and the country were having under the old agreement.

I know the amendments being proposed to this agreement have taken at least a couple of years to come up with. We have changes in the UNCLOS, the convention on the sea, coming in since. We have other agreements that are making a difference in fisheries management, what with the whole shift toward an ecosystem-based approach.

In the last few years, even since these changes have been under consideration and the management has changed, beyond our 200-mile limit, particularly on the nose and tail of the Grand Banks and the Flemish Cap, where we have vessels patrolling, we see that infractions have decreased significantly. You mentioned statistics showing that the number of infractions in the last number of years have been steadily decreasing. I would call that a success, so it seems that we're definitely moving in the right direction.

I'm wondering if you could describe for us how the dispute settlement process actually works under the amended agreement.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Lunney.

Mr. Balfour.

[David Balfour]

This is a point that I may ask my foreign affairs colleagues to assist me on.

Under the former convention, a party could simply object and establish a quota that they could either abide by or disregard. That was the situation, and it caused a number of conservation issues.

With the new proposed convention, where a party wishes to object to, for example, a quota decision of NAFO, they now have to come forward and provide explanations for their objections. This is new and it makes for transparency to the public and NGOs. The party would in all likelihood have to defend itself outside of NAFO.

There is also a process for establishing a fisheries commission or an ad hoc panel to bring resolution to the objection. Such a body would see if there's merit in the arguments being presented, working within the spirit of cooperation and consensus to come to a resolution that would be good for conservation. While that process is going on, the objecting party would have to adopt measures to ensure that the conservation requirements of NAFO are being respected.

If the decision of this process is not accepted, there is then recourse to a binding process under the UN Fisheries Agreement. While that process is under way, the parties would have to adhere to the decisions that arose out of the ad hoc process. Ultimately, the results of the dispute resolution under the UNFA would be binding on all parties in NAFO. This would bring closure to systemic and outstanding objections that in the past have put the resource at risk.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Balfour.

Mr. Lunney.

[James Lunney, Conservative, Nanaimo—Alberni, BC]

For example, I think there's a quota on shrimp. Denmark and Greenland, together with the Faeroes, were assigned a quota of something like 314 tonnes. They're disputing that, and they have unilaterally gone ahead and set their own quota of about 3,000 tonnes.

So you're saying that under the old agreement they could just go ahead and set their own limit and fish that way, but under the new amended agreement they would have to honour the quota they were assigned while the dispute resolution process was taking place. Is that correct?

[David Balfour]

Currently--and we are operating under the 1978 NAFO convention--the Faeroe Islands can object to the quota, and it is the case now that they are fishing a self-declared quota ten times what NAFO had assigned to them based on historic use of that resource, without the need for presentation of any explanation.

Under the new convention, they have to provide reasons and rationale for setting a higher quota. We would be into an ad hoc process or a process through the commission to try to quickly come to a resolution of the matter, and if that was not successful we would ultimately have a binding dispute resolution; and rather than have an ongoing outstanding problem, we would be able to then have a go-forward situation that would respect the principles of NAFO in conservation and cooperation and so on.

[James Lunney, Conservative, Nanaimo—Alberni, BC]

So I gather you're satisfied that the objection procedure is robust enough to protect Canadian interests?

[David Balfour]

Yes, absolutely.

[James Lunney, Conservative, Nanaimo—Alberni, BC]

Could you review for us the infractions that we've observed historically over the last number of years, and the decline? I think you mentioned it in your report, but I just wanted to go over those figures.

[David Balfour]

We have declined over the last four or five years from 14 to seven, to two or three, to zero last year. All parties are making an effort to see that their fleets comply with the conservation measures stipulated by NAFO. We also have an effective enforcement presence on the water. We have two offshore patrol vessels on-station, monitoring the foreign fleets in that area. We have an air surveillance effort. We do a lot of electronic tracking of vessels so that there is an effective and vigilant enforcement posture to ensure there is compliance with the requirements of fishing in the area. There is good cooperation of flag states in calling vessels to their home ports for inspections. There's a lot of cooperation where our fishery officers are invited to observe those inspections. There's a follow-up in terms of charges and fines and penalties. These are also having to be filed with the NAFO Secretariat so that they're given visibility and transparency.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Balfour.

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Mr. Chairman, and thank you for your presentation, gentlemen.

We seem to have gone from what I would regard as at least a 20-year history of dissatisfaction in this country to what now appears to be sweetness and light in the future. You know, just for colleagues on the committee, this dispute about NAFO's role goes back to the attempt by Canada to control its fish stocks, which happened to be outside of 200 miles but on the continental shelf, the so-called “straddling stocks”. This resulted in a call going on for many years for Canada to have some control over these fish stocks, resulting in 2006 in a unanimous report of the fisheries and oceans committee calling for custodial management by Canada of the fish stocks on the nose and tail of the Grand Banks and the Flemish Cap. This was adopted, of course, by the Conservative Party. The previous Minister of Fisheries in the last government, of course, had adopted this as his policy as well, having been a member of this committee.

I noticed in your presentation no mention whatsoever of the notion of custodial management, which Canada was supposedly trying to achieve in these negotiations. In fact, what we have instead, following on the heels of, for example, the time between 2004 and 2008, is a total allowable catch that has been exceeded by 30% on average on the turbot. We have a moratorium on other stocks. We have the rules having been ignored up till then. There's been under-reporting, misreporting of catch, targeted fishing for moratorium species under the guise of bycatch--all sorts of problems that have been brought about. Yet now we have a situation where there's a proposal by the EU to have management of Canadian fish stocks inside the 200-mile limit. It started off as a proposal that NAFO would actually conduct this management inside or outside the 200-mile limit, which I think was negotiated down, with the consent of the state.

Perhaps you could explain to me, in a situation where Canada is calling for custodial management of its own stocks, why would the EU put on the table a proposal that NAFO should control the stocks both inside and outside of the 200-mile limit?

[The Chair, Conservative, Kevin Sorenson]

Mr. Balfour.

[David Balfour]

First, I wasn't there with regard to negotiating the terms of the new convention. I'm not really in a position to speculate or comment on imputed motives.

I have to say, however, that when I read the text of the convention, I see that it is very clear about confirming the rights of the coastal state and the sovereignty of the coastal state within its exclusive economic zone. It's clear that the NAFO convention is to operate on the high seas outside Canada's EEZ.

The provision you referenced is reflected, as I understand it, in other modern regional fisheries management organization conventions, such as that governing the fisheries on the eastern Atlantic. But when I read the provision, I see it as in fact putting others on notice: You know what? You'll do nothing inside the Canadian zone unless Canada asks for it--because we have some reason to ask for it--and we vote in favour of it. Besides that, you're not doing anything within the Canadian zone.

That's reflective of Canada's sovereign rights under all the other international instruments. It's also there in the event that one of the other three coastal states in the NAFO area perhaps had some reason--looking at the management of fisheries from an ecosystem point of view, maybe, things being different--to want to see some basis of cooperation with others, whether it be science or the safeguarding of vulnerable marine areas or the like. Really, in terms of the way forward, this convention has an emphasis on cooperation with all in order that we are managing fisheries within the context of an ecosystem and managing to secure the sustainability of the resources and benefits for everyone's respective fishing fleets within their rights and histories.

I don't believe we would read that section of the convention as in any way suggesting that the EU or others would do anything within the Canadian zone. It's as much an affirmation that you're not doing anything unless we explicitly ask you to do that.

[The Chair, Conservative, Kevin Sorenson]

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

Surely, Mr. Balfour, we don't need a treaty with the NAFO nations to underscore our control within the 200-mile limit. That's well established, and has been since 1972.

I want to ask you, or whoever else wants to answer this, about the fact that we go into these negotiations with a stated intention that Canada is attempting to seek control and custodial management of its resource outside the 200-mile limit and inside, and we come away not only empty-handed but in fact worse off than when we began, because we now have provisions that contemplate--let's use that word broadly, “contemplate”--that NAFO in fact would exercise management within the 200-mile limit.

It seems to me that we went there with one intention and we came away in fact worse off than when we started.

[The Chair, Conservative, Kevin Sorenson]

Mr. Kessel.

[Alan H. Kessel]

Thank you, Mr. Chairman.

I'll give Mr. Balfour a bit of a break here.

I think everybody is aware that we have gone through a severe awakening on the issue of the fish stocks of the North Atlantic and, in fact, the fish stocks around the world. As a government, we also take part in various other RFMOs around the world in order to be good stewards of the environment.

What we have now is still the current NAFO agreement. And within that period, we have seen a shift in approach, which Mr. Balfour has indicated, that has moved us toward an ecosystem awareness. It has moved us to a much greater sense of concern about conservation. It has moved us to a precautionary guidance system. It has moved us to working with those who, in the past when there was abundance, would just be worrying about how to divide up the pie. And that was the overarching mentality that went into the devising of a new, modern, up-to-date, current, 21st century document that better reflected how we should conduct ourselves.

As the Government of Canada, we are satisfied that this amended convention, when it comes into force, will reflect our objectives. And I'll run through a couple.

It introduces constraints on the use of the objection procedure, by making objections part of the decision-making process, limiting the grounds for objection and placing the onus to justify the objection on the party wishing to object. Mr. Balfour went through the explanation that, before, you would just go in and fish willy-nilly. This has now answered that issue by implementing, for the first time, mechanisms to resolve disputes. We had no dispute resolution mechanism. We were sort of isolated in the 20th century with the document, which we've now upgraded to allow for a dispute resolution mechanism.

With respect to the application.... And there's a bit of a mythology that's been created that somehow Canada is giving up sovereign rights. These are fully protected, as Mr. Balfour has indicated. There's no way anyone could come into our 200-mile zone without our agreement. We have a complete veto on that. We would have to invite them in and we would have to vote for it. There is a double-pronged process for that.

The benefits that were discussed in the process are that in some cases we may actually want to work with other organizations and conservation groups to try to determine how the science could be improved, and in that case we have a way to say yes or no. Before, there was no mention of that in the agreement. And I think, based on what Mr. Balfour has said.... And a plain reading of the text would show you that there has been a quantum leap between what the old agreement has and what the new one will have when it comes into force.