Proceedings of the Standing Senate Committee on
Fisheries
Issue 19 - Evidence
OTTAWA, Thursday, May 6, 1999
The Standing Senate Committee on Fisheries, to which was referred Bill C-27, to amend the Coastal Fisheries Protection Act and the Canada Shipping Act to enable Canada to implement the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks and other international fisheries treaties or arrangements, met this day at 8:45 a.m. to give consideration to the bill.
Senator Gerald J. Comeau (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this morning we will be looking at Bill C-27. Our first witnesses are from the Department of Fisheries and Oceans.
Mr. Wiseman, please proceed.
Mr. Earl Wiseman, Director General, International Affairs Directorate, Fisheries Management, Department of Fisheries and Oceans: I am accompanied today by Mr. Howard Strauss and Ms Nadia Bouffard. I welcome this opportunity to provide an overview of Canada's Bill C-27. Mr. Chairman, in your introduction you read the full title of the bill, which incorporates the full title of the UN agreement. Rather than use that long paragraph, we in Canada have decided to call it the UN Fish Agreement, or UNFA. It is easier, when discussing the bill and the UN agreement, to use that term.
UNFA is the culmination of the efforts of many Canadians who have worked hard to achieve a significant objective that Canada has long strived for. It is a breakthrough in international law and a significant deterrent to overfishing on the high seas. The purpose of the bill is to implement the UN agreement from the Canadian domestic law perspective. The agreement came about as a result of stocks overfishing problems on the high seas off the East Coast of Canada.
However, it also came about because these problems were not only off the coast of Canada, they existed off the coasts of many other coastal states. There was a clear consensus that there was a need to do something. Creating that consensus was not easy. Again, it was a Canadian initiative that motivated and led the development of this consensus.
Canadians have felt the effects of high seas and distant water fleets fishing extensively off our coasts since the 1950s. Shortly after World War II, with the advent of new and modern technology, we no longer had the white fleet of Portugal off our coast with small dories going off to catch fish. We had large factory-freezer trawlers with the capability of catching very large quantities of fish and processing them right at sea.
The Grand Banks was essentially rediscovered, and a virtual armada of vessels from around the world came to take advantage of the fish stocks there. We became very much aware in Canada of the effects of this significant fishing activity on the population of fish stocks. We did a significant amount of research, and we moved very strongly to try to put some controls on these fishing activities. Discussions took place through the development of the United Nations Convention on the Law of the Sea where, in fact, we had at least been successful in creating a 200-mile zone. We were able to move those vessels to 12 miles from the three miles where they had previously been able to fish off the coast of Canada.
The process to establish the UN agreement was a long, complex and very difficult one involving many compromises by all parties. Unfortunately, there were still gaps in the United Nations Convention on the Law of the Sea when it came to dealing with problems of straddling stocks and the highly migratory stocks. Straddling stocks were the real problem for Canada. These are stocks that live on the Grand Banks of Newfoundland, inside Canadian waters and just beyond our 200-mile zone. They are liable to be fished just beyond the 200 miles.
There was too much ambiguity on the United Nations Convention on the Law of the Sea. Canada felt that it was necessary to get a focus on this ambiguity and to see if more could be done to combat the problem of overfishing on the high seas and closing some of these loopholes.
We did this in a concerted effort starting in the late 1980s by developing a consensus among international legal experts in the area of the law of the sea that there really was a problem of straddling stocks, and there was a need to take some action. We did this through a three-pronged approach, what we called our diplomatic, legal and public relations initiatives.
The public relations initiative still has effects on us today in that many of the perceptions that people have in Canada of the problems of foreign overfishing are those which were described in the late 1980s and early 1990s. As a result of the success of our domestic public information campaign, some people unfortunately believe that it is still an accurate description of the situation that exists today. Today is significantly different than it was in the late 1980s.
The diplomatic initiative was to try to get these same messages to governments around the world, particularly governments who would be influential in trying to advance our cause.
The legal initiative was an attempt to create new legal instruments. UNFA was the culmination of that legal initiative. It really started with a small group of people, one of whom will be a witness before you next week, I understand.
To get this on the international agenda, Canada organized a conference of international legal experts in St. John's in 1990. We were successful in getting the issue of high seas overfishing on the table for discussion at the Rio Summit, at the UN Conference on Environment and Development in 1992. Out of that came a recommendation that the UN should convene a meeting to deal with this problem. We were successful in driving this UN process to the culmination of an actual agreement. There was a significant amount of resistance to having a binding agreement. There was more of an interest in having a resolution or a general guideline, something much softer.
We knew that that was not going to be enough to satisfy our concerns, and we were successful in getting a consensus to build an international agreement, which was agreed to in August 1995. It was signed on December 4, 1995.
While that was going on, we were not sure how successful we were going to be in terms of getting an agreement; it could have been a resolution. So we worked in other international fora such as the FAO. We were successful in getting the FAO Compliance Agreement, which is an agreement that assures compliance with international laws for any vessel fishing on the high seas. A flagship must take control of its vessels and know what they are doing. We also worked hard in the FAO to develop the code of conduct for responsible fishing.
I had circulated earlier a deck that outlines many of the basic principles and background to the UN agreement, and I will not go through that material specifically. Perhaps, I will make a few general comments on what the UN Fish Agreement means for Canada.
As I said, it gives some context to the UN Convention on the Law of the Sea for cooperation on the management of straddling stocks and highly migratory fish stocks. It deals only with those two types of stocks. It does not deal with salmon, and it does not deal with the extension of jurisdiction. It only deals with cooperation on the management of straddling stocks: those stocks whose natural environment straddles the 200-mile zone of a coastal state, and highly migratory stocks, which are a small category of stocks that move quickly over a large distance. These are stocks such as tunas and swordfish, for example.
The UN bill itself is divided into seven parts. It starts with general principles, which are that the signatories to the agreement agree to adopt measures to ensure the long-term sustainability of the resources and promote the optimum utilization of these resources. Parties are to use the best scientific evidence and data available. They are to use the precautionary approach, and the UN agreement does spell out in some terms what the precautionary approach is in more detail, perhaps, than has been the case in any other international instrument.
It stresses the need for compatibility of conservation and management measures between those taken on the high seas and those set by the coastal state. This is a very important factor for Canada in that activities on the high seas may not undermine the conservation activities of coastal states. That will be a key obligation of the parties that ratify the UN agreement.
The second part of the UN agreement speaks of cooperation, conservation and management directly through regional fisheries management organizations.
The third part, and this one is quite innovative, is that even non-members of these regional management organizations, if they are a party to UNFA, are bound by the measures developed for conservation in those regional fisheries management organizations. So, for example, Canada is not a member of the North-East Atlantic Fisheries Commission, NEAFC, which manages fish stocks primarily in the North Sea. However, should a Canadian vessel ever fish there, as a party to UNFA, the Government of Canada would have to ensure that it fished in total compliance with the rules established by NEAFC. That is a very important and innovative tool to ensure that high seas fishing must be controlled and must be consistent with the measures put in place by the responsible regional fisheries management organization.
The fourth element of UNFA deals with transparency in the activities of regional fish management organizations. These should be open, and there is work being done now in the Northwest Atlantic Fisheries Organization, NAFO, and the International Commission for the Conservation of Atlantic Tunas, ICCAT. Canada is a member of these two organizations, which are both important for our industry on the East Coast. There is work in both of those organizations to make them more open and transparent to other governmental organizations and to non-governmental organizations. There is a call for greater scientific cooperation.
Another important clause, clause 5, deals with flag state duties. It makes much clearer the responsibilities of flag states. They must take control of their vessels; they must ensure that their vessels comply with fishing rules; they must ensure that the vessels do not undermine the fishing rules; and they must take measures to enforce these rules.
The compliance and enforcement procedures are spelled out in the sixth part of UNFA. This is the only part of UNFA that requires Canadian legislation, and Bill C-27 really deals with this compliance and enforcement aspect.
The other aspects of UNFA can be put in place through policy. We have been reviewing all of our foreign and domestic policies to ensure that they will be in line with our UNFA obligations when we ratify UNFA.
The final component of UNFA -- and probably one of the most important because it is a major deterrent to illegal activities on the high seas -- is a compulsory, binding, dispute settlement procedure. If one party believes that another party is acting in a way that is inconsistent with their obligations, they can take that party to a third-party dispute settlement panel or tribunal, and the other party must participate.
The agreement currently has 59 signatories. Most of them signed in late 1995-96. The agreement requires 30 ratifications for it to come into force. Currently, 21 states have ratified, including the United States, Russia, Norway and Iceland, all four of which are also members of NAFO. Canada hopes to shortly join this list. With the adoption of Bill C-27 and the subordinate regulations, we will be able to ratify the UN agreement.
The European Union has indicated that they intend to ratify before the end of the year. When the European Union ratifies, it will mean 15 additional ratifications because member states will ratify. That will bring us well over the 30 ratifications required and will mean that within 30 days the UN agreement will come into force.
The main purpose of Bill C-27 is simply to implement our UNFA obligations, particularly as they relate to compliance and enforcement. It does not change the current Coastal Fisheries Protection Act -- it extends it in some areas and adds to it -- but it is an additional tool.
The secondary purpose of the bill is to allow us to implement other international fisheries treaties and other international obligations that we may enter into in the future pertaining to high seas fishing.
The third purpose of the bill is to make very clear and to give authority to our enforcement officers to take appropriate action to deal with the stateless vessels that we may find on the high seas.
Many of the functions of UNFA are new and innovative in international law, and we must ensure that these are reflected accurately in a practical way so that Canadian enforcement officers can fulfil our requirements in implementing these obligations in UNFA.
We will discuss further the principles of the bill when we get into a clause-by-clause discussion. The bill creates prohibitions applicable to deal with UNFA, other agreements and stateless vessels. These prohibitions apply to high seas areas managed by regional fish management organizations. They create prohibitions concerning the fishing rules that must be followed in fishing on the high seas. These rules generally are the rules of the regional fisheries management organization.
The bill extends the application of existing enforcement powers provided in the Coastal Fisheries Protection Act to these new prohibitions, subject to certain procedures outlined in our obligations under UNFA. These procedures are inspection, search, seizure and so on.
The bill provides a regulation-making power, which names the states to which the UNFA regime will apply or names states to which any other international agreement or undertaking will apply. They will describe the fishing rules, the areas in which those rules apply and any procedural details on how enforcement officials should act in carrying out their duties.
Finally, there are a few other matters in Bill C-27 that relate to our obligations in the implementation of UNFA. The first is clause 7.01, which is an authority to board a foreign vessel sighted on the high seas, not as a result of hot pursuit, but because the vessel may have been seen fishing illegally inside the Canadian zone. With the passage of this bill, we will have the authority under clause 7.01 to board that vessel and to take appropriate action with the state's consent.
The other matters in the bill are to provide reciprocity. Not only is Canada providing authority to its officers to take action to fulfil our obligations, we are also authorizing foreign enforcement authorities to take enforcement actions against Canadian vessels that are not complying with fishing rules outside Canadian waters.
We will follow the UNFA procedures, but should we deem that it is appropriate to turn a vessel over to a non-Canadian authority for a certain act that may have taken place, we will have the authority to do so under the UN agreement.
Finally, an amendment to the Canada Shipping Act in Bill C-27 allows for the suspension or cancellation of a Canadian masters' or seafarers' certificate for any such person who may be fishing on a vessel that contravenes UNFA fishing rules. This provides us with authority not only to deal with vessels under Canadian flag, but also to provide a clear direction and deterrent to Canadian nationals for participating in any activity that may be contrary to the UN agreement.
That concludes my opening remarks, and my colleagues and I would be open to any questions you may have.
Senator Stewart: We have before us certain documents. Those who may be watching the proceedings of the committee will not have those documents. Consequently, some of our questions may have answers that are obvious from the papers before us, but answers that are not obvious to people in the viewing audience.
I wish to begin by congratulating Mr. Wiseman on what I think was a very concise and succinct statement of the purposes of the bill. Would that all exposés of bills were as good.
My first question deals with a topic to which Mr. Wiseman referred briefly, and I will ask it again just to have the answer clear on our record.
Am I correct in thinking that this bill does not apply within Canada's 200-mile coastal area and that it applies beyond that?
Mr. Wiseman: That is correct.
Senator Stewart: Are there any foreign vessels fishing within our 200-mile coastal area? If so, on the basis of what treaty or arrangement is that being done?
Mr. Wiseman: As of today, I believe there may be three Cuban vessels fishing inside Canada's 200-mile zone. They are fishing under a bilateral agreement between Canada and Cuba. They are also fishing consistent with the Coastal Fisheries Protection Act and its regulations.
In fact, the Cubans are fishing for Canadian companies. The Cubans have no quota for the silver hake they are fishing off the coast of Nova Scotia, but Canadian companies have quota.
Senator Stewart: Therefore, is it possible for a Nova Scotian, for example, to contract with a foreign vessel to fish within the 200-mile coastal zone and turn the catch over to the employing company?
Mr. Wiseman: For many years in Canada we have had what we call developmental fisheries. It is only in those developmental fisheries, fisheries in which we have not had much Canadian interest or Canadian experience in fishing, where there is a resource that is available to be exploited. In order to develop Canadian catching and processing capacity to develop these fisheries, we have allowed foreign vessels to be chartered.
There is only one developmental fishery left on the East Coast of Canada and that is silver hake. In the past, there were developmental fisheries in Greenland, for halibut and shrimp.
Senator Stewart: Is the area known as the "straddling area" defined precisely in geographic terms rather than in terms of fish movement?
Mr. Wiseman: On the map behind me, the red line indicates our 200-mile zone. Any stock that lives partly within Canada's 200-mile zone and partly outside of it is, by definition, a straddling stock. Various stocks have different habitats in different areas of the banks. The proportion of a stock that straddles may be greater for some stocks than for others. The easiest explanation is that any stock that exists on both sides of the line is a straddling stock.
Senator Stewart: You said that you are very hopeful that the countries of the European Union will ratify this agreement. Will that ratification be done by the individual states or will it be done in the name of the European Union as a whole? Will all the member states of the European Union ratify?
Mr. Wiseman: The Treaty of Rome provides to the Commission of the European Union certain powers and authorities. One of those is responsibility for international fisheries management. Another is responsibility for the administration of the Common Fisheries Policy, which manages fish stocks within the European Union. It is unique amongst a number of the other legal instruments that exist in the European Union.
Therefore, the NAFO member from the European Union is the European Commission. There is only one vote for the European Union in NAFO. In the past, individual countries in the European Union had been members of these organizations. When Spain and Portugal joined the European Union in 1986, for example, they had to drop their memberships as individual states and they became part of the European Union. However, because UNFA deals with flag state authorities such as controlling vessels, the European Union does not have that authority. The authority of the European Union rests primarily in negotiating access agreements and fishing conditions. They do not have direct control of vessels. That, even within the European Union system, is left with flag states.
It is a mixed jurisdiction in Europe. Therefore, the ratification of the UN agreement will be done by member states individually, taking on their flag state obligations, and the European Commission, taking on its broader management obligation. They will all ratify and they have already decided, as a council of fisheries ministers, that they will ratify together. It is now only a matter of all the member states getting the appropriate administrative or legislative measures in place so that they can ratify. We are hoping that will happen sooner rather than later.
Senator Stewart: The second part of my question relates to the panel or tribunal to which cases of controversy may be taken.
Will the European Union participate in this panel as a single entity or will the member states of the European Union participate in the panel individually? I am sure you understand my concern. If we had several members on the panel from within the European Union, it might be pointless to take a controversy to that panel, regardless of what the European Union, through its Brussels spokesperson, may have said or done. Could you clarify that problem?
Mr. Howard Strauss, Director Environmental and Economic Law Division, Department of Foreign Affairs and International Trade: Honourable senators, in setting up panels, the parties usually agree on its membership. If it is to be a three-member panel, one side would nominate one person, the other side would nominate another, and they would agree on the third, or, alternatively, all three might be taken from a joint list. There is an established practice for developing these panels and it is done equitably.
Senator Stewart: In case of a controversy, between Canadian fishers and Spanish fishers, for example, who would be the non-Canadian party? Is it Spain or is it the European Union?
Mr. Strauss: That would depend on the issue. If it were an enforcement issue, it would likely be Spain. If it were a quota issue, it may well be the European Commission. There is a split competence. When the European Union and the member states ratify, they would have to indicate what the competencies are.
[Translation]
Senator Robichaud: The government has often been criticized for not proclaiming or putting in place measures to proclaim the United Nations Convention on the Law of the Sea, and you briefly raised the point that there was some ambiguity. If I understand you correctly, Bill C-27 will eliminate or clarify those ambiguities?
[English]
Mr. Wiseman: That is correct. One of the difficulties we had with United Nations Convention on the Law of the Sea was that it had these ambiguities and gaps in the area of vital importance to Canada. In order to be comfortable with ratifying the Convention on the Law of the Sea we wanted those gaps closed, and that is what UNFA is doing. It is not perfect but it has gone a significant way toward dealing with some of our major concerns in dealing with the Convention on the Law of the Sea. Therefore, we are look looking forward to the ratification of the UN fish stocks agreement and ensuring that those gaps are closed.
Senator Robichaud: If we had had UNFA at the time of the turbot war, what would have been different?
Mr. Wiseman: If the European Union, Spain and Canada had been parties to UNFA, we would have identified the dispute. The dispute could have been identified during the process. There had been fishing activities by European Union fleets for a number of years. These activities were a concern to Canada. Those issues could have been identified as disputes and resolved back in the 1980s. On the other hand, the final straw was the European Union's objection to the quotas established by NAFO for Greenland halibut in 1995. We could have taken that issue to dispute settlement; if we felt that the objection was going to be a threat to conservation and would undermine the conservation regime established by NAFO. In our view, it would have done both, and we would have had a binding dispute mechanism to resolve that problem with Spain before any additional action and fishing had taken place.
That is why there is such a strong deterrent to having this binding dispute settlement mechanism. If a party knows that its actions can be challenged, it will be careful about acting in such a way that it will be found to be acting inconsistently with its international obligations.
Therefore, it narrows the range of extreme actions that any party may take, and there will be a more focused opportunity for parties to resolve problems. If they cannot, there will be an opportunity to narrow the problem down and seek a third-party decision as to how that problem should be resolved.
Senator Robichaud: You mentioned the straddling stocks. We are speaking about the nose and tail of the Grand Banks. What about the Flemish Cap?
Mr. Wiseman: A straddling stock must be looked at in its full distribution. There is only one stock that has been identified as living inside Canadian waters, and whose biomass extends beyond the nose of the bank, in area 3L and into area 3M. Area 3M is the Flemish Cap, and the stock is Greenland halibut. Canada has designated the Greenland halibut in areas 3LMNO as a straddling stock. There are also discrete stocks that live on the Flemish Cap. There are cod, redfish, and shrimp stocks. These stocks are currently managed by NAFO but they are deemed, at this point, to be discrete. The UN Fish Agreement does not apply to those stocks.
Senator Robichaud: Would the agreement apply because those stocks are managed by regional organizations?
Mr. Wiseman: That is an issue we will discuss within NAFO. We will see whether NAFO members are willing to apply the UN agreement principles and practices, which they will be bound to apply to straddling stocks, to the few discrete stocks that are also managed by them. That issue has not been resolved, nor are we focused on doing that right now. Our focus is to ratify the UN agreement and have the other parties to NAFO ratify it. We want to see the agreement come into place, then we will work towards its implementation and build upon it to put in place effective fish management regimes.
Senator Robichaud: For this agreement to apply, all the parties to NAFO would have to agree that there would be a management plan for those stocks, or is there one in place already?
Mr. Wiseman: An agreement and measures are already in place. NAFO already has comprehensive management and enforcement mechanisms. The scope of the UN agreement concerns only straddling stocks and highly migratory fish stocks.
The NAFO regime that was put in place after 1995, after the turbot crisis, is largely reflected in UNFA. Many of the steps and procedures in UNFA have been in place in NAFO since 1995. This came as a result of the agreement between Canada and the European Union to end the turbot crisis.
In many ways NAFO is ahead of most regional fisheries management organizations. NAFO may have been the model on which some of the UNFA provisions were developed. All this -- the conclusion of UN negotiations and also the Canada-EU agreement to end the turbot war -- happened in 1995. They really did come together, although there is significant overlap. Therefore, principles to cover the discrete stocks in the Flemish Cap already existed in NAFO. There are just a few other conditions in the UN agreement that are not yet in the NAFO context for discrete stocks.
Senator Robichaud: You mentioned that we would have the authority to board a ship on the high seas if we suspect it had been within our waters. However, we need the permission of the state. What if we do not get that permission?
Mr. Wiseman: This is a small provision of the bill. It is important that we go back and understand the context of what happens. Under the Coastal Fisheries Protection Act, if a foreign vessel is sighted fishing illegally in Canadian waters, we have the right to board that vessel and seize it without the consent of the coastal state. It is in our waters.
Under UNFA, we have the right to board a vessel on the high seas, without the consent of the coastal state, to inspect it and determine whether it is fishing consistently with its international obligations or the rules of the regional fisheries management organization.
Senator Robichaud: That applies to a state that is a signatory to the agreement.
Mr. Wiseman: That is correct. These all affect parties to the agreement. The incident you have referred to already exists in customary international law. However, we have not, in our own domestic law, given the authority to our fisheries' officers to do this. If our officers do not have the authority to undertake certain actions, they can be liable if any untoward incident occurs. Therefore, we must provide authorities to fisheries' officers so that they can undertake their duties and be protected personally.
For that reason we have the proposed subsection 7.01. This section deals with the concept of international law. Let us say we see a foreign vessel fishing in Canadian waters. We see it by aircraft, and call a patrol vessel in the area. The aircraft would remain overhead, keeping an eye on that fishing boat. In time, the patrol vessel would approach the fishing boat. If the fishing boat flees outside the 200-mile zone, we have the right to follow it.
Senator Robichaud: Is that not hot pursuit?
Mr. Wiseman: Correct. We have the right to follow it, stop it, board it, and seize it without the notification or consent of the flag state. We can do that. That is hot pursuit. The one incident we are dealing with here is where you do not have hot pursuit. Let us say an aircraft flying saw a fishing boat inside the Canadian zone, but there was no Canadian patrol vessel available out there. Suppose the aircraft could not stay overhead, because it could run out of fuel. In that case, contact is not maintained, which is necessary to have a hot pursuit. The plane goes home, but it reported that vessel "X" was suspected to be fishing illegally inside the Canadian zone on a certain day. Let us say that a few days later, a patrol vessel sees that boat outside the 200-mile zone. Under the proposed subsection 7.01, which is a new provision, it can board the vessel, with the consent of the flag state, and take some action.
In the past we could always have asked the flag state, in those circumstances, if we could board the vessel because we believe it fished illegally two days ago in our waters. The flag state would not have been obliged to tell us to go ahead. They would probably have just told us to forget about it, and would have found some way to resist our attempts.
However, a party to UNFA that is committed to complying with the rules, controlling its vessels and ensuring that rules are followed would have a much more difficult time saying no, and we hope to get the consent of the flag states to do so. If they do not consent, we will make a lot of noise about it and we will pursue it under another means. We are proceeding under international law, which requires the consent of a flag state before a vessel can be boarded.
Senator Robichaud: Are the 59 states that signed the agreement the states that do most of the high seas fishing? Could states that are not party to the agreement be a problem?
Mr. Wiseman: Most major fishing countries have signed the agreement. A signatory to the agreement only implies acceptance in principle of the agreement and an indication of an intention to proceed to ratify the agreement. However, as I have mentioned, to date, only 21 of these 59 states have ratified. Of those states that have ratified, some of the larger fishing states have not yet done so. China has not yet ratified, for example, nor has Japan. However, as I mentioned, the United States and Russia have ratified, and they are large fishing nations.
Senator Stewart: We are talking about ratification. As I understand it, ratification is what is called in law an act of state. However, it does not mean, in the case of Canada, for example, that Parliament has agreed to make the changes in Canada's domestic law that may be required to give effect to the ratification. Am I correct?
In the case of the states you have cited as having ratified the agreement, have they had the appropriate legislative support to make their ratification effective, as it now stands?
Mr. Strauss: The act of ratification is an international act that obliges a state in international law vis-à-vis other states to honour its obligations under the treaty. In the case of UNFA, there is a mechanism that other parties to that particular agreement can use. There is a compulsory and binding arbitration provision.
We really do not care what the state that ratifies must do to domestically honour its international obligations. If it does not, we take them to court.
For many civilian states, for example, when they ratify frequently, the agreement becomes part of their domestic law.
Senator Stewart: It does so automatically.
Mr. Strauss: Yes. For other states, another process is required. In our case, when we wish to ratify, if new legislation is required, then that legislation must be enacted by Parliament.
In the end, what is important to us is that the states have signed and ratified. They are internationally committed. The treaty is in force, and then we look to the government to do whatever it has to do to honour its obligations.
Senator Stewart: However, you will concede that the ratification may be simply a binding legal statement that reflects a state's good intention, but that the government of the day in a particular country may not be in a position to deliver on its promise because the legislature says no.
Mr. Strauss: Our practice is that we will not ratify unless we have legislation.
Senator Stewart: I understand the Canadian situation.
Mr. Strauss: It may be that other states, for one reason or another, cannot comply with their international obligations. The normal recourse is to go to court.
In this case, with regard to UNFA, there is also another very important and unique dimension. Every other state that is party to UNFA can, in effect, ensure that the treaty is implemented. For example, we would have the right to board and inspect a foreign fishing vessel without the permission of the foreign state. If there is not to be any enforcement -- and it is clear that there will not be any enforcement by the foreign state -- we have the right to continue enforcement actions ourselves. We can bring the vessel into court. We can continue to investigate. Those are very effective sanctions, and they ensure that we can ensure compliance with UNFA, even if a foreign state cannot.
Senator Robichaud: You say that 21 states have ratified. Have they made the necessary provisions within their national laws, as we are doing now?
Mr. Wiseman: For many of these states, their judicial systems simply subsume international conventions that are ratified into their domestic law. Therefore, they do not have to do anything. This is happening in most of the states of the European Union.
The commitment to sign makes the international agreement part of their domestic law, and it may even supersede other aspects of domestic law in some countries.
The U.S. has determined that their existing law is sufficient and that they do not need to put in place any additional measures. Other states have had acts before their Parliament, and others are simply administrative law changes that are put in place.
I do not think we have done a full study of what has been done in various countries, but Mr. Strauss may have some additional information.
Mr. Strauss: We have not done a full study. Mr. Wiseman mentioned the U.S. When the U.S. ratifies a treaty, it becomes part of their domestic law. I know that Russia has implemented legislation. With respect to a number of the other countries that we follow closely, we know that the treaties they ratify automatically become part of their domestic law, or we know that they have enacted legislation.
Senator Stewart: You say that when the U.S. signs a treaty, it becomes part of the law of the land. Am I not correct in thinking that Senate approval of that treaty is necessary before they will ratify?
Mr. Strauss: That was done.
Senator Mahovlich: You mentioned that Japan was not agreeable to UNFA. Have they not signed?
Mr. Wiseman: They have signed, but they have not ratified.
Senator Mahovlich: Therefore, we cannot board their ships, even if one is spotted off the West Coast.
Mr. Wiseman: If it were within 200 miles, yes, we could.
There is another international agreement on the West Coast, called the North Pacific Anadromous Fish Commission.
Senator Mahovlich: Would this overrule the other agreement?
Mr. Wiseman: No. This is a regional fisheries management organization agreement between Japan, Canada, the United States and Russia that none of those countries will fish on the high seas for salmon. We have given each other authority to board each other's boats under that agreement.
Therefore, we had the authority to board the Japanese boat. Although we have had this agreement in place for many years, we have not had the domestic authority through legislation to give our officers the rights to board on the high seas until the UNFA is passed. Bill C-27 will not only give us authority to implement UNFA but to implement some of these other agreements that already exist so that our fisheries officers will have full protection to undertake these duties on the high seas.
That is a coincidental example because you mentioned a Japanese boat on the West Coast.
Senator Mahovlich: Some of my friends on the West Coast have told me they have spotted some Japanese vessels. I hear the same thing from my friends in Newfoundland. They say they have spotted some Portuguese vessels from time to time. Is Portugal involved in NAFO?
Mr. Wiseman: There are Portuguese vessels fishing on the nose and tail of the Grand Banks and the Flemish Cap. Portugal is a member of the European Union, and they have rights to fish there. When the European Union and Portugal ratify, they will be bound by UNFA.
We already have the right to board under the NAFO regime. However, we are not starting from a clean slate with nothing out there. There are a number of regional fisheries management organizations around the world. Some of them have very extensive, well-developed control, enforcement and management regimes. Some of them have very loose regimes.
UNFA is a global treaty and it is trying to bring up the standard of all of these agreements. NAFO has been the world leader. It has some of the best management measures and the tightest control and enforcement regimes anywhere in the world. Therefore, under that, there already exists, particularly since 1995, a very stringent management and control regime in the northwest Atlantic that does allow us to board and investigate vessels from NAFO members. It does, however, obligate NAFO members to take certain actions if serious infringements are found.
The UNFA itself is a framework agreement. It is a broad agreement that is setting direction for regional fisheries management organizations.
Senator Mahovlich: I have a question in regard to Bill C-27. We are giving foreign states the power to investigate our fishing vessels outside Canadian waters, am I correct?
Mr. Wiseman: That is correct.
Senator Mahovlich: What happens if they decide that we are committing a crime? Do they take over our ships and take them into their docks? Are we prisoners?
Mr. Wiseman: I would hope not. Under the UN agreement, if a serious infringement is found, the flag state must be notified. The flag state has up to three days in which to respond and to fulfil its obligations under article 19 of the agreement to fully investigate, to determine whether an offence has been committed, and to act on applying the necessary administrative or judicial means to sanction the vessel.
Those are the obligations of a flag state, should its vessel be found to have fished contrary to the rules of the regional fishery management organization. We would expect that if we boarded a foreign vessel and we found that it had fished inconsistent with its obligations, that upon notifying the flag state, it would send an inspector over or it would take our evidence as given. They would call the vessel home with a full inspection to be conducted when it gets home. If the data is there to substantiate a charge, the flag state would charge that vessel and it would be appropriately sanctioned. That is the obligation of a flag state.
If we board a vessel and determine that a flag state is prepared to take on its obligations of taking that vessel home, they would be fulfilling their obligation. If they board our vessel and they notify us that that vessel has committed a serious infringement, we will take on our flag state obligations. We will inspect that vessel to determine if that vessel has committed an offence and sanction that vessel as appropriate. As long as we do that, they will not take that vessel.
Senator Mahovlich: We punish our vessel, in other words.
Mr. Wiseman: We do that because, under international law, the flag states are responsible for the activities of their vessels. That has been made even stronger and clearer in UNFA. The flag state has a responsibility to control its vessels, to know what they are doing, and to ensure that what they do is consistent with the fisheries management and conservation rules that are there.
I would just add one other point, though. If the flag state does not reply within three-days, we have the right, under the UN agreement, to then bring that vessel into port for further investigation. In the same fashion, if another flag state boarded a Canadian boat, and we did not reply, that boarding state could take that vessel into port.
I would not use the same terms as holding it captive. However, in fact, they have seized the vessel. They have detained the vessel until such time as we are prepared to fulfil our obligations. Or we can also take the position that they caught it; it is way over there; it was never authorized to be there, so go ahead and charge it.
Senator Robichaud: There is a three-day notification period and then action by the flag state. Is that ship to discontinue activity during that period or can it continue fishing, if it is within regular practices?
Mr. Wiseman: That vessel can continue fishing. However, the inspector that boarded it, who determined that there was an infringement, can stay on board the vessel, continue to investigate, seize and set aside evidence. With an inspector on board the vessel, it is not likely that fishing in contravention of the rules would continue. It can continue to fish as long as it is consistent with the rules.
The Chairman: I want to come back to a couple of points that were raised during Senator Mahovlich's questions. One was in regard to the anadromous fish on the West Coast, which I understand are fish that spawn in fresh water and go out to sea. You give the impression that Bill C-27 would in some way provide further protection or further capacity to those stocks. My understanding is that salmon are not dealt with in Bill C-27.
Mr. Wiseman: You are correct Mr. Chairman, and I am sorry if I left that impression.
Bill C-27 applies to UNFA, for straddling stocks, highly migratory species. It also deals with stateless vessels and with international treaties or arrangements that Canada has entered into or will enter into in the future. That latter category is so important.
We have an agreement that includes anadromous species. With that agreement and this bill, we will have been given authority for our fisheries officers to act. However, it is not really part of UNFA at all.
The Chairman: You referred to three-day notification. This is not in the proposed legislation. If I understand correctly, the UNFA says three-days. It does not say three working days. What happens if this happens over the Christmas holidays? Will it stretch into a week or two? Why would not the legislation simply say 48 hours or 72 hours or something more descriptive?
Mr. Wiseman: There is a very good explanation for this, Mr. Chairman. First of all, article 21(6) of UNFA says three working days. If it happens over the Christmas holidays, we get an officer staying on the vessel a little longer than three-days. The flag state has up to three days to respond. If it wants to respond in 10 minutes, that is fine, too.
Your question on why it is not in the bill is a good one.
A review of UNFA will take place as part of the process. There may be modifications of some of its parts. There may be a modification to clarify "three working days." There may be an agreement to extend or reduce the number of days.
If that happened, we would have to come back to Parliament to amend our legislation. Therefore, we have decided that it is better to put the time into regulations. The regulations will say "three days". They will not say "two days," "48 hours" or "72 hours," they will say three days.
The Chairman: Last year, Canada argued the Estai case before the International Court of Justice in The Hague. Canada boarded the Spanish vessel Estai in 1995. Canada's argument was that it did not recognize the jurisdiction of the International Court of Justice Has Canada historically and traditionally argued that we do not recognize the jurisdiction of the International Court of Justice? This could have significant ramifications if we continue to have problems with the United States on salmon stocks on the West Coast. We might one day want to go before the International Court of Justice and argue that we do want to present that case for international arbitration.
Canada has historically depended on international goodwill and international law. Yet, last year we argued that we did not recognize this international system of justice.
Would you comment on that and on how it might relate to this bill?
Mr. Wiseman: Canada's reservation before the International Court of Justice was a very narrow one. It pertained only to actions that Canada would take in the NAFO regulatory area. It pertained to Bill C-29 and the conditions of it. It did not take from the court any jurisdiction to deal with any fisheries matters. It was a very narrow reservation that was put in place at the time Bill C-29 was introduced, that being the legislation that gave Canada authority to take action in the case of an emergency situation, such as a threat to a stock on the nose and tail of the Grand Banks. We believed that we had to act quickly. We wanted to ensure that there would be no possibility for delay in taking the actions that we believed were appropriate and necessary. Therefore, we put in a very narrow reservation. It was the upholding by the court of that reservation, as a result of the case the Spanish brought before the International Court of Justice, which led to the termination of that case.
However, in no way are we disavowing ourselves of the rules of international law or the jurisdiction of the International Court of Justice.
Mr. Strauss can elaborate on that.
Mr. Strauss: As was noted, Canada has always been a very strong supporter of the court. Our attornment to the jurisdiction of the court is among the broadest of all states. As Mr. Wiseman has mentioned, we have made this one narrow exception. We have done this before. We did it about 30 years ago in the case of the Arctic Waters Pollution Prevention Act, and then we lifted that reservation so that the measures taken pursuant to that act can be brought before the court.
You mentioned Pacific salmon. We have considered submitting that dispute to arbitration. However, the Americans have not wanted to do that.
The Chairman: They may be using the same arguments as we used on Bill C-29.
Mr. Strauss: The American attornment to the jurisdiction of the International Court of Justice is very narrow. Basically, if they want to go, they can be taken there.
The Chairman: Article 5 of UNFA requests that states take into account the interest of artisanal and subsistence fishers. Has any consideration been given to implementing this very important provision?
Mr. Wiseman: In Canada, our policy priority in fish management has always been artisanal fisheries. The inshore fisheries and the aboriginal fisheries --
The Chairman: That might be a point for discussion, but please continue.
Mr. Wiseman: Canada had a policy of not allowing mass expansion in factory freezer trawlers, although there was heavy demand for that in the late 1980s, in order to protect the continuation of the fisheries of the smaller boat fishermen. Our fishery has been very much built on providing opportunities for coastal communities and small boat fisheries.
I recognize the sensitivities today. I also recognize that when there are few fish, many people suffer. However, if you look at what has happened in the past, these fisheries have continued in the face of those who felt that there were more efficient ways to conduct fisheries than having artisanal fisheries.
The Chairman: Those in the viewing public who might want a different view on this subject could read our most recent report, issued in December, on privatization and quota licensing in Canada's fisheries. That is a paid announcement on behalf of the committee.
Mr. Wiseman: Again, my responsibility is international fisheries. I do not have responsibility or expertise on domestic fisheries. However, the article to which you referred is an article that we are reviewing in light of all our policies and practices to ensure that our actions will be consistent with our obligations under the UN agreement.
Senator Adams: How many other countries will have enforcement vessels such as the Coast Guard that we have within our 200-mile limit between Canada and the United States? How many other states will bring their own enforcement when they are outside the 200-mile limit?
Mr. Wiseman: For at least 10 months of the year the European Union usually has a patrol vessel in the NAFO regulatory area. From time to time, the Japanese have had patrol vessels, and from time to time the Russians have had inspection vessels. That was in the past. They have not had them recently because their activity is significantly reduced. They are all welcome to do that.
They have an obligation under UNFA to inspect and take charge of their vessel quickly if a serious infringement is found. It is up to them to determine how to do that. They can do it by having an inspection vessel in place and boarding the vessel very quickly to inspect it themselves to determine whether there is an offence. The European Union does that and they have concurred with Canadian inspectors who have found infringements. Some vessels have been called home and actions have been taken.
However, if they do not want to send a patrol vessel over, which is very expensive, they can take the word of Canada or the EU, which can also board vessels as a party to UNFA and a member of NAFO. If an infringement is found on an Icelandic vessel, for example, Iceland can take the word of the inspector. They can call the vessel home, look at the report of the inspector, and inspect the vessel themselves. If the vessel has violated the rules, they will apply the appropriate sanctions.
Senator Adams: If the Japanese charge a Canadian vessel, do they not have to tow it back to Japan? Does the ship just sit there until all the information is gathered for a decision?
Mr. Wiseman: It can become complicated. We expect that flag states, when notified of a serious infringement, will act responsibly in ordering the vessel back to port and taking appropriate actions. Your example is an interesting one, but it is hypothetical. However, if Japan had boarded a vessel in the NAFO area, but the flag state did not recall the vessel, and Japan wished to continue the inspection; I imagine Canada could work with Japan to allow that vessel into Canada for further inspection. We could provide a port.
Senator Adams: Will all nations agree to have quotas with other countries? How will they work that outside of the 200-mile limit? Other countries could bring in ships and trawlers.
Mr. Wiseman: This is where UNFA is most effective. Regional fisheries management organizations are responsible for setting the management regime, in whichever manner they want, to manage the stock. NAFO, in the northwest Atlantic, sets quotas for about 13 stocks. For most of those stocks the quota is zero. It is a moratorium, but it manages the stocks. The moratorium is also important. This means that any party to UNFA, whether they are a NAFO member or not, cannot fish those stocks, unless they comply with NAFO rules. One of those rules states that if you do not have a quota, you cannot fish. There are other stocks not managed by quota. They are not in large volume, so any country could fish them. However, if they fished them it would have to be according to NAFO rules. This means they have to use minimum mesh sizes; have observers on board their vessels; have satellite tracking devices; and hail whenever they enter or leave the area. There is a whole range of rules they have to follow to be consistent with NAFO.
Under this framework agreement, if a party does not obey the rules, whether or not they are a member, UNFA can take it to compulsory dispute settlement, where they could be found to have not fulfilled their international obligations. The tribunal can impose a significant penalty.
Senator Adams: Right now we have native fishing of cold water shrimp in the waters off the Labrador coast. Now you want to reduce the quotas, or something like that. Does that affect quotas inside the 200-mile limit?
Mr. Wiseman: The shrimp fishing off Labrador takes place only within the 200 mile-limit.
Senator Adams: I mean if you had shrimp outside the 200-mile limit?
Mr. Wiseman: When you have a straddling stock as happens with stocks further south, yes. Uncontrolled fishing of a straddling stock outside the 200-mile limit can have a significant negative effect on the stocks inside. We have seen that. Canada fought hard to get UNFA to stop that.
Countries that have quotas in NAFO have them on the basis of long established traditional and historical rights to fishing. They have a legitimate share of the stocks that are on the high seas.
For the last four years, they have been fishing according to their international rights and obligations. They follow the rules.
Yes, there are foreign vessels out there. However, vessels that are fishing beyond 200 miles are fishing legally within their rights. As long as they fulfil their obligations, we should have nothing to fear. They are not having a negative impact on the stock. We are sharing stocks and they are contributing to the conservation of the stocks by acting responsibly.
Senator Perrault: Mr. Chairman, many questions arise. It seems to me that some nations are more interested in the concept of conservation than others. I was in Brussels a few years ago and one of the leading spokesmen, in an informal conversation said that country "Y" has no word in its language for conservation. It simply does not exist.
There are allegations that various governments were encouraging, even by way of subsidy, the construction of false holds in fishing vessels. I know we have great expectations for the success of this particular measure. However, some nations may not be willing to subscribe to these great principles as others do. Furthermore, the words: "If a protection officer believes, on reasonable grounds," how do we interpret "reasonable grounds"? Then article 21 talks about "clear grounds." Do we have a list of regulations and definitions? It seems to me that the wording provides for a great latitude of possibilities.
What is the extent of the inspection powers for people boarding ships? Are they able to study written records? Are they allowed to take photographic evidence? Are they allowed to inspect the vessels under inquiry to see whether or not false holds have been constructed in them? It seems, in the way this has been drafted, that the language is loose. Perhaps it must be that way in order to achieve an international agreement. How many nations as of today have signed and ratified?
Mr. Wiseman: You have given us a number of issues to try to deal with, senator. I spent three years in Brussels and I know many of the attitudes in Europe.
Senator Perrault: There is some cynicism.
Mr. Wiseman: However, there has been significant change in the last few years. First, the international scene has moved quickly, firmly, and decisively to define states' rights and obligations. This has happened not only in UNFA, but also in the FAO, through the Code of Conduct for Responsible Fisheries; and with a compliance agreement that ensures states comply with the rules of regional fisheries management organizations.
Furthermore, within the European Union, they have recognized that the cavalier disregard of scientific advice and conservation measures is now hurting them. Their fleets have been excluded from many countries where they fished in the past because these countries have, perhaps, developed their own fishing capabilities, and are leery about the conservation ethics of some of these fleets.
More importantly, they have found that stocks in their own domestic waters are threatened. Politically, they set higher quotas than the scientists advised. In the short term those measures may have had some benefit, but in the long term they have been disastrous. They are putting in place, for their own domestic needs, stronger legislation than they ever had before. Some of the countries we have been concerned about in the past, mainly Spain and Portugal, both have new legislation, with teeth.
Senator Perrault: That was not always the case with those countries.
Mr. Wiseman: However, they have adopted legislation to start controlling their fleets in the last few years, and they have been doing so. When we have found serious infringements on Spanish vessels, the Spanish government has taken these incidents seriously and has sanctioned these vessels. Not only that, but they have found infringements all by themselves, through their own inspections.
Senator Perrault: That is a change.
Mr. Wiseman: Absolutely. We must recognize that some of the examples that you have mentioned before, such as these false holds, were fairly common in the late 1980s and early 1990s. They are extremely rare now. The false holds are not being built with government subsidies anymore, to be sure. These are problems of the past. Fishers who may have fished all their lives in a certain way find it difficult to change, but the sanctions and deterrents are there. Fishers are starting to change.
Among other things, UNFA provides a capacity not only to trust, but also to verify. We believe that parties will fulfil their obligations under UNFA, but we can confirm that by inspecting.
That brings me to your question on the extent of inspection powers. Yes, an officer can look at the written records, use a camera, and inspect the holds, fish processing areas and the gear. The powers are widespread.
Some hidden holds, or hidden areas, have been found. They will continue to be found, if any exist.
You asked another question which is more technical, on the domestic law basis about "reasonable grounds" and "clear grounds." I would ask Ms Bouffard to address that.
Ms Nadia Bouffard, Senior Advisor, Legal Issues and Canada-France, International Affairs Directorate, Fisheries Management, Department of Fisheries and Oceans: There is a difference between inspecting and searching. Once you have reasonable grounds and believe that an offence has been committed, you switch hats and get into a search mode and there are more actions that can be taken.
It might be difficult to find a hidden hold at sea. That would most likely be done at port.
With respect to reasonable grounds, UNFA does use "clear grounds" whereas this legislation uses "reasonable grounds." It was important to use a well-known Canadian term that has been tested in the courts, and which in our view is equivalent to the term used in UNFA.
The courts have a standard that is provided by the Charter of Rights and Freedoms. It was tested in the courts. It requires more than mere suspicion. There is a level of probability of the facts and the evidence you have. It is a well-tested standard that our fishery officers are well aware of and familiar with. It is used throughout Canadian statutes with respect to the use of enforcement powers.
[Translation]
The Chairman: Unfortunately, we have not asked all the questions of interest to us. Another committee will be occupying the room in a few minutes. We will have to close at this time. I wonder whether Mr. Wiseman and his colleague would be prepared to come back and testify next Thursday.
[English]
We will review the bill clause by clause, next Thursday morning at 8:30. At the same meeting, we might be able to finish the rest of the questions we were not able to ask at this time.
I would like to remind members that Tuesday evening, May 11, 1999, we will have three witnesses appearing before us.
Mr. Wiseman: I appreciated the questions. We will be pleased to answer more as we go through clause by clause next Thursday morning.
The Chairman: Thank you very much.
The committee adjourned.