Evidence of meeting #31 for Foreign Affairs and International Development in the 40th Parliament, 2nd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendments.
A recording is available from Parliament.
Conservative
The Chair Conservative Kevin Sorenson
Thank you very much.
I want to thank the department for being here and for giving us the scoop, so to speak, on both the Fisheries perspective and the Foreign Affairs perspective. Thank you for your testimony here today.
We'll suspend for a few moments to let you exit your seats and to let our other guests make their way to the table, please—and as quickly as possible. Our intentions are still to go until 11 o'clock.
Conservative
The Chair Conservative Kevin Sorenson
Because we were a little late getting going this morning with some of the committee business we had to look at first, we still have to pretty well conclude at 11 o'clock. I therefore want to rush along here as quickly as possible.
We are very pleased to have three guests appearing in the second hour today: first of all, Mr. Bob Applebaum, former director general, Department of Fisheries and Oceans; Mr. Scott Parsons, former assistant deputy minister, Department of Fisheries and Oceans; also, the Honourable Tom Hedderson, Minister of Fisheries and Aquaculture, Province of Newfoundland and Labrador.
We welcome all our guests this morning.
We will begin with Mr. Parsons. You can have some opening comments, and then we'll go into the round of questioning. We noted you were here for the first hour, so you know how the process works.
Mr. Parsons.
Scott Parsons Former Assistant Deputy Minister, Department of Fisheries and Oceans, As an Individual
Thank you, Mr. Chairman.
As you said, my name is Scott Parsons. I worked for 34 years with the Government of Canada, most of it with the federal Department of Fisheries and Oceans in various capacities. For the last 18 years of my career, I was an assistant deputy minister in the department, responsible at various times for fisheries management science and for oceans, including the development and passage of the Oceans Act of 1997, which embodied the concepts of ecosystem management and precautionary approach that the previous speaker alluded to this morning. That was done in 1997 and passed by the Parliament of Canada. Also, I was chief scientist of the department for a number of years, and for three years I was president of an intergovernmental marine science organization that spanned the North Atlantic.
Since I retired, in my involvement in this particular issue of NAFO, in 2005 I conducted a review of NAFO for the advisory panel on straddling stocks. That report was severely critical of NAFO, describing it as a toothless tiger and concluded that NAFO was broken and that nothing short of radical reform would suffice. By that point, around 2005 or 2006, there was a general consensus in Canada that NAFO was broken and needed to be fixed, and today we're here discussing these amendments, which were originally an attempt to do that.
How did we get to the point we are at today? As one of the honourable members referred to previously, in 2006 the current government, before coming to power, made a fairly bold commitment with respect to how we would deal with this issue. It stated that it would extend the 200-mile limit to the edge of the continental shelf, the nose and tail of the Grand Banks, and the Flemish Cap in the North Atlantic and would be prepared to exercise Canadian custodial management over this area. So when the new Minister of Fisheries and Oceans, the former minister, Mr. Loyola Hearn, came to office, he was then under significant pressure to implement this commitment. After prolonged discussions, however, the focus shifted to making improvements to NAFO rather than implementing what was traditionally thought of as custodial management. The negotiations that have been referred to commenced and were known as NAFO reform.
Through bureaucratic bungling, the union negotiators were able to seize control of the drafting pen, and in any negotiation he who has the drafting pen is in an advantageous position. It allowed them to put proposals on the table and put Canada in a reactive position and forced to give ground time after time in the negotiations.
Why are we in the mess that we are now with this package of amendments, and we do think it is a bad set of amendments? It is really because the Canadian negotiators did not have the option to walk away from the table. Why didn't they have that option? Because the negotiators were under enormous political pressure to develop a deal at any cost that could be portrayed as fulfilling the 2006 commitment. This is demonstrated by the fact that once the package of amendments was agreed to, former Minister Hearn, in a press release, claimed that Canada had become the custodian of the resources outside 200 miles. And in 2008, the government would go even further in its election platform to say that it had, and I quote: “assumed custodial management of the fishery in the Northwest Atlantic Fisheries Organization (NAFO) regulatory area”. We would certainly question this claim.
In reality, we think that the negotiators have failed to achieve any fundamental reforms in these proposed new amendments. The proposals are in fact a charade, a game of smoke and mirrors. They fall far short of making NAFO more effective and will create substantial new problems. In particular, as alluded to earlier, they will undermine Canada's ability to maintain sole control over fisheries management in the Canadian 200-mile zone. Overall, the package of amendments is fatally flawed, and we call on you to urge the government not to proceed with ratification and, instead, embark upon a new process.
Conservative
Bob Applebaum Former Director General, Department of Fisheries and Oceans, As an Individual
Thank you, Mr. Chairman.
Mr. Chairman and honourable members, my name is Bob Applebaum, as you have heard. I'm a former director general for international relations in the Department of Fisheries and Oceans, retired since 1996.
During my public service career, I was a member of the Canadian delegation during the 1970s to the United Nations Conference on the Law of the Sea. This conference resulted, among other things, in the extension of Canadian fisheries jurisdiction to 200 miles.
I was also a Canadian delegation member in the immediately following international negotiations that produced the present Northwest Atlantic Fisheries Organization convention in 1978. The purpose of this convention was to provide for the international management of fisheries outside 200 miles. And I'd like to emphasize that last part—outside 200 miles. Nothing in the present convention—the convention that is right now in force—will allow even the possibility of any international management inside the Canadian 200-mile limit.
About two years ago, I and three of my former colleagues—Bill Rowat, a former deputy minister of fisheries and oceans; Scott Parsons, here today, a former assistant deputy minister; and Earl Wiseman,who succeeded me as director general for international relations—discovered that something puzzling to us was happening in the negotiations that were then in progress with the stated purpose of strengthening the NAFO convention. We had thought these negotiations were to develop an amendment to change one particular section of the convention, to limit the ability of NAFO members to opt out of NAFO conservation rules through a convention procedure that allowed for objections.
We learned, in discussions with DFO officials, that much more was going on than that. We learned that the existing NAFO convention was being substantially overhauled to produce what was really a new convention. We also learned that a member of the European Union delegation was doing all the writing. Scott referred to that before. Please note that. A representative of the major overfishing countries was doing all the writing, and the Canadian delegation had allowed that to happen.
When we were shown the current drafts, we saw things we found very disturbing. Specifically, we found one provision that would empower NAFO to manage fisheries inside the Canadian 200-mile limit, with the proviso at that time that Canadian concurrence would be required. This was astounding to us since no one had ever before conceived that international fisheries management inside 200 miles would ever be considered—at least not by Canada. And secondly, we found that the voting system in NAFO was to be changed from the simple majority system in the present NAFO convention to a two-thirds system. This would make it harder, as you have heard, for Canada in future to get NAFO decisions on tough conservation measures to reduce catches from the fish stocks that straddle the Canadian 200-mile limit.
We assumed these things were mistakes and that the Canadian officials involved, who previously had no involvement in the law of the sea conference and the earlier NAFO convention negotiations, and the DFO officials, who had no experience in the negotiation of international conventions—they had been going to NAFO meetings—didn't understand the implications of what they had developed.
We raised our concerns with DFO officials and tried to give them the background they didn't have. And I left the meeting with the impression that these things would be fixed in the ongoing negotiations. A few months down the road, we obtained new and close-to-final drafts of the proposed amendments, and we were very disturbed. The provision for NAFO management inside 200 miles was still there. The Canadian concurrence had been changed to a Canadian request, but the revision was now expanded so that the full range of NAFO powers for the area outside 200 miles—NAFO management and enforcement, all the range of NAFO powers for outside 200 miles—could now apply to the entire area of Canadian east coast waters, including the Gulf of St. Lawrence up to the shore lines. And the two-thirds voting system stayed.
We also realized that the new provisions to limit the possibility of foreign states opting out of NAFO conservation decisions were a bit of a sham. There was now to be a review procedure, but nothing that could result during the fishing season in a binding decision that would overrule objections and prevent overfishing. You've heard some vague expressions of how this all can lead to a binding decision. Nothing there can lead to a binding decision during the fishing season that would overrule objections and prevent overfishing.
As a final point, we realized the new amendments did nothing to improve enforcement outside 200 miles. They could have incorporated the new high seas enforcement provisions already developed in the mid-1990s in the UN Convention on Straddling and Highly Migratory Fish Stocks, but they didn't include those provisions. Overall, the new amendments, which the public has been told will strengthen NAFO's ability to conserve the fish stocks outside 200 miles, would instead weaken NAFO.
We brought these concerns to the then Minister of Fisheries in writing, thinking he did not understand what was going on. We never received a reply to that letter. The negotiations concluded, they finished, with all the objectionable provisions intact. Since then, we've campaigned publicly against these amendments. The Government of Newfoundland has become alerted to the problem and the premier has written to the Prime Minister asking him to withhold Canadian ratification and to prevent the amendments from coming into force.
My three colleagues and I have also written to the Prime Minister supporting Newfoundland's position. Dr. Parsons and I, speaking for our two colleagues as well, are asking you today to join us and the Government of Newfoundland in requesting that the Prime Minister refuse ratification of the proposed amendments and lodge a formal objection in NAFO that will end the current process. It will also open the door for new talks aimed at achieving meaningful improvements to the NAFO convention without undermining Canada's sovereign rights inside 200 miles.
Conservative
The Chair Conservative Kevin Sorenson
Thank you, Mr. Applebaum.
We'll also welcome the Honourable Tom Hedderson from Newfoundland and Labrador.
Tom Hedderson Minister of Fisheries and Aquaculture, Government of Newfoundland and Labrador
I'm very pleased to be here, Mr. Chair.
To the committee members and you, a very hearty thank you for allowing me this opportunity to represent the government of our province and, naturally, the people of Newfoundland and Labrador.
Again, when I speak about the fishery, I speak about an industry that is of vital importance to the people of Newfoundland and Labrador. The prosperity of our province has been highly dependent upon the resources of the sea. As a result, any developments in international law relating to the concept of territorial seas and the rights of coastal states have been followed with keen interest in our province, not only of late but throughout our history.
The fish stocks of our Grand Banks have been a significant contributor to the Newfoundland and Labrador fishery and, indeed, to the economy. Unfortunately, the Canadian 200-mile exclusive economic zone does not encompass the entire bank. The nose and the tail of the Grand Banks are international waters, and several very important fish stocks to our province of Newfoundland and Labrador, and indeed to our country, straddle this 200-mile limit. It has always been a difficulty, because of the straddling, going back and forth. It provides, I guess, an easy portal for opportunities for overfishing and for deleting our particular stocks.
Historically, the most noted of these stocks is the northern cod. Prior to the establishment of the zone, this stock felt the impact of foreign overfishing. Since 1968, you're talking about approximately 800,000 tonnes of northern cod taken and landed by foreign vessels. And this stock, I have to say, has never, ever fully recovered to the level it had been prior to this.
With the extension of the jurisdiction in 1977 came the establishment of NAFO, a multilateral organization responsible for managing fish stocks in the northwest Atlantic. The objective of NAFO is to contribute, through consultation and cooperation, to optimum utilization, rational management, and conservation of fisheries resources in the convention area. We contend that NAFO has failed to live up to this objective. Others agree. The House of Commons Standing Committee on Fisheries and Oceans report of the advisory panel on straddling stocks reached the same conclusion after examining the performance of NAFO.
The problems through the 1980s and 1990s are well documented. The objection procedure was used regularly for grossly overfished stocks, and NAFO could do nothing to stop it. Flags of convenience were used to fish outside the rules, and NAFO could do nothing to stop it. Many countries were misreporting, and NAFO could do nothing to stop it. The result was the collapse of just about every straddling stock off the coast of our province, off the coast of this nation. The reform effort has failed to remove the objection procedure or to achieve an internal binding dispute settlement procedure. Having one vote of 12 clearly, and I say clearly, does not afford this nation what it needs to protect our adjacent and straddling stocks.
Some improvements were made as a result of the infamous turbot war, such as the introduction of the 100% observer program. The improved fishing behaviour, however, was very short-lived and came at a very high price in terms of resource access. Illustrating the poor fishing behaviour in 2003, the estimated foreign catch of moratorium species was 15,000 tonnes, over half of which was American plaice, a stock for which Canada holds 98% of the quota and that was historically fished and processed primarily by Newfoundlanders and Labradorians. The Government of Canada responded to the problem by increasing its patrols and surveillance. This action, combined with a lack of fish and increasing cost, has reduced activity by foreign fleet vessels on the nose and tail of the bank.
What happens if and when the fish return? We believe that without an effective management regime, there is more than a high probability that we will go down the same road again. Just as the stocks are coming back, we're already getting indications that we're pushing towards that same road.
The motivation behind custodial management is to protect and rebuild fish stocks. It is about ensuring that fish stocks that straddle our 200-mile EEZ are given a chance to recover and to be sustained for the benefit of all--not only Canada, but all nations that fish in the northwest Atlantic. To reach this goal, custodial management involves enhanced fisheries management by the adjacent coastal state, and this is where Canada comes in.
It is an approach that could be used by other coastal states, but would be initiated on the nose and tail of the Grand Banks. By applying custodial management out to the edge of the continental shelf, this nation will manage the stocks that currently straddle the 200-mile limit. This would ensure consistent application of resource conservation measures while respecting the established shares of other nations. It would also be consistent with the measures outlined in the UN fish stocks agreement on straddling and highly migratory stocks.
As a coastal state, Canada would assume responsibility for ensuring that conservation and scientifically based management are applied. Canada would be responsible for the surveillance and enforcement. This would be the start of a solution that can work in a multilateral context. NAFO, which is the regional fisheries organization, could continue to be responsible for access and allocation decisions, scientific recommendations, and the management of these great stocks outside Canada's 200-mile EEZ.
Let me be clear: this is not an extension of jurisdiction; this is not a grab for resources or territory. It would respect historical shares, it would promote conservation, and it would enhance the role of this great nation of ours as a coastal state. It would strengthen compliance with management measures and provide greater deterrence for fisheries violations outside the 200-mile limit. Straddling stocks such as cod, American plaice, flounder, redfish, and Greenland halibut would all be given a better chance to rebuild. However, if this cannot be implemented within NAFO, then in the interest of allowing the stocks to rebuild we will continue to urge the Government of Canada to pursue this option through other means, such as creating an alternate regional fisheries management organization, as was suggested by the advisory panel chaired by Dr. Art May.
The current federal government promised the people of Newfoundland and Labrador that it would pursue custodial management if elected. Both Prime Minister Harper and the former Minister of Fisheries and Oceans, Loyola Hearn, committed in writing and verbally that they would pursue custodial management. The failure in this instance is that they never even tried. Instead, the Government of Canada, along with the other NAFO members, undertook a NAFO reform process. As part of this process, the NAFO convention has been amended.
We have great concerns in regard to some of these amendments. The amended NAFO convention can serve as a vehicle for other nations to impose their management of overstocks inside Canada's sovereign 200-mile limit. History has shown the tragic ecological results of mismanagement of stocks by foreigners outside our 200-mile limit, and we must ensure that this never, ever happens within our 200-mile zone.
Our province and many experts, including my friends here, the former Department of Fisheries and Oceans executives with extensive NAFO experience, are extremely concerned with the clause in the amended NAFO convention that in certain circumstances allows NAFO to apply measures in the waters under our national jurisdiction. The new wording could very easily and clearly lead to increased influence of NAFO inside our EEZ. This amendment gives, for the first time ever, the opportunity for NAFO to influence decisions within our sovereign territory as a country. There should never be any circumstance whatsoever that allows for even the possibility of such an action to exist. Particularly in these times when Arctic sovereignty issues abound, Canada must demonstrate with clarity and with certainty that we will not accept such measures in the jurisdiction of our great country.
Some have argued that we need not worry because the proposed amendment would only put this option into the NAFO convention, and Canadian politicians will never allow it to happen in practice. Unfortunately, nobody can predict how any future minister, let alone a government, will act. It is therefore critical that the option not exist in any manner, shape, or form that opens the possibility of foreign management and enforcement in Canadian waters.
One of the primary objectives stated by the federal government heading into NAFO reform was to prevent the continued abuse of the objection procedure. The EU has historically used this clause to grossly overfish stocks off our coast during the 1980s and 1990s with the blessing of NAFO. The agreed-upon NAFO objection review procedure in this new convention continues to be inadequate. While it puts a process in place, granted, nothing within this process is binding on a contracting party or prevents unilateral action that could seriously jeopardize conservation. Nations can continue to use the objection procedure and this can be challenged by others.
If I could, I have just some—
Conservative
The Chair Conservative Kevin Sorenson
You're over the 10 minutes, but go ahead, Mr. Hedderson, very quickly.
Minister of Fisheries and Aquaculture, Government of Newfoundland and Labrador
To finish up, custodial management is a multilateral and collective opportunity to restore, protect, and share the resources for the future. As it speaks to Newfoundland and Labrador's awareness that the current system is not working, it might serve as a model for other parts of the world. I would ask for your support for Canadian custodial management of straddling fish stocks off the coast of Newfoundland and Labrador.
I'm sorry for that override. I just got carried away there. Thank you for your indulgence, Mr. Chair.
Conservative
The Chair Conservative Kevin Sorenson
Thank you very much, Mr. Hedderson.
We're going to move very quickly. I think what we may do to make certain that Mr. Harris gets his opportunity at the end is cut us to five minutes each.
I remind the members of this committee as well as those visiting that the five minutes really belong to the member. You can manage your own five minutes.
Mr. Byrne.
Liberal
Gerry Byrne Liberal Humber—St. Barbe—Baie Verte, NL
Thanks very much.
Listen, this is extremely interesting, because what I'm hearing is that the government believes that custodial management not only is a commitment for the future--it doesn't believe that--custodial management is now the official policy of the Government of Canada. Canada owns custodial management of the nose and the tail.
Are you telling me that's incorrect, Mr. Applebaum?
Former Director General, Department of Fisheries and Oceans, As an Individual
Yes, sir, that's incorrect.
Liberal
Gerry Byrne Liberal Humber—St. Barbe—Baie Verte, NL
Well, in other words, Canadian foreign policy as it relates to fisheries is built on an absolutely false platform.
Let me ask you this. We heard testimony here this morning that fishing willy-nilly is no more. The objection procedure is gone. Binding arbitration is now the rule of law as soon as this revised convention is in place. Yet here's what I read in article XIV, paragraph 2:
Where any Contracting Party presents an objection to a measure by delivering it to the Executive Secretary...The measure shall then become binding on each Contracting Party, except any [party] that has presented an objection.
Does that mean they can go ahead and fish willy-nilly after an objection procedure is outlined? If so, could you outline the timeframe of the objection procedure?
Let me ask you this question and conclude. If an objection procedure is raised, will the objection procedure be resolved within a few weeks or days of the procedure being filed or will it be prolonged or last for months, if not years? Will the objection procedure be resolved within the time period of the fishing season, at least, so we can stop that? Will nations be able to keep fishing while they do the objection?
Former Director General, Department of Fisheries and Oceans, As an Individual
To deal with the last part of Mr. Byrne's question, it is true that if an objection is lodged, states will be able to continue to fish without hindrance until an entire process has gone through, which cannot be effectively concluded to overrule that during the fishing season.
The procedure is set up where there are panel procedures. It's not days and it's not weeks; it's months to go through the original procedure, which cannot reach a binding conclusion. Then there's a possible step, itself a very difficult step, to move to the UNCLOS or UNFA dispute settlement procedures, which normally are aimed at taking two to three years to conclude.
So the answer to your question is that if there's an objection lodged now, nothing in this convention will stop that—
Former Director General, Department of Fisheries and Oceans, As an Individual
The amendments to revise it.
Maybe I can answer Mr. Lunney's question too, because I think he asked a question and I don't think he got a straight answer for it.
I believe this was your question. If under this procedure an objection is lodged, do they have to fish within the limits that were set in the NAFO decision, their quota limits, until these processes are completed? I believe that was it.
The answer was kind of obscure, but the answer to your question is no, Mr. Lunney. They are not required to fish within the limits of the quota given to them in the decision. They are free to continue to fish according to whatever quota they set for themselves.
Liberal
Gerry Byrne Liberal Humber—St. Barbe—Baie Verte, NL
So what you're saying, then, is that there is still an objection procedure and there is still a lengthy procedure within NAFO itself. NAFO has to concur with the ad hoc panel or the recommendations. If the objecting contracting party does not agree with the NAFO review of the ad hoc panel, they can continue the objection and continue to fish unilaterally, and then they have the option of raising it to a provision within UNFA or UNCLOS, which is the International Court of Justice.
Am I reading that correctly?
Former Director General, Department of Fisheries and Oceans, As an Individual
It's the equivalent. It's the UNCLOS tribunal or the UNFA tribunal.
Liberal
Gerry Byrne Liberal Humber—St. Barbe—Baie Verte, NL
Is that a process that takes a couple of days, a couple of weeks, or is it a couple of years? What's the cost? Has Canada ever brought something like that to, say, the International Court of Justice? Just give us a practical scenario of how this rolls out.
Former Director General, Department of Fisheries and Oceans, As an Individual
With respect to the international tribunals you're talking about, I was involved with the Gulf of Maine arbitration for the boundary between Canada and the United States as well as the Canada-France arbitration about the boundary. Those things took from two to three years and involved, for Canada alone, maybe $10 million to $20 million of expenditures. They were long, drawn-out processes.
Liberal
Gerry Byrne Liberal Humber—St. Barbe—Baie Verte, NL
And that is exactly what would have to occur under this revised NAFO convention dispute settlement measure.
Former Director General, Department of Fisheries and Oceans, As an Individual
Yes, that's right.
Conservative