Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 3 - Evidence, October 26, 2006
OTTAWA, Thursday, October 26, 2006
The Standing Senate Committee on Fisheries and Oceans met this day at 10:50 a.m. to examine and report on issues relating to the federal government's new and evolving policy framework for managing Canada's fisheries and oceans.
Senator Bill Rompkey (Chairman) in the chair.
[English]
The Chairman: I welcome our guests, Richard Ballhorn, Keith Lewis, and Michael Shewchuk, from the Department of Foreign Affairs and International Trade.
We are continuing our discussions on the ongoing program of fisheries and oceans, focusing on the straddling stocks outside and around the 200-mile limit. We will go to Newfoundland and Labrador on November 7, 8, and 9 for hearings there. Then we will return to Ottawa for further hearings and hopefully conclude our deliberations before Christmas.
I want to welcome the senators and to introduce them: Senator Adams from Nunavut, who has a lot of water around his territory; Senator Hubley, from Prince Edward Island; Senator Cowan from Nova Scotia, which is not an island, except for Cape Breton Island, which still may not be an island; and Senator Johnson, from Winnipeg, who is especially concerned with Lake Winnipeg. My name is Senator Rompkey.
Mr. Ballhorn, I believe you have an opening statement, after which we will proceed with questions.
Richard Ballhorn, Director General and Deputy Legal Advisor, Legal Affairs Bureau, Foreign Affairs and International Trade Canada: Good morning. Our bureau has traditionally had the lead on fisheries and Maritime issues at the Department of Foreign Affairs and International Trade. I am accompanied by Keith Lewis and Michael Shewchuk, legal experts in the area of oceans and fisheries.
[Translation]
I had been invited to address the committee on issues relating to the international regime governing fisheries in areas beyond our 200 nautical mile exclusive economic zone (EEZ). I will be focusing on the United Nations Convention on the Law of the Sea, and how Canada is involved in and affected by these agreements.
I will also be touching on other international fisheries agreements. My intention is to present a short overview after which I would be pleased to respond to your questions.
[English]
The UN Convention on the Law of the Sea, UNCLOS, also called the "constitution for the oceans," was negotiated in 1982. It sets out the framework for many aspects of ocean governance, from navigation to marine pollution and from dispute settlement to management of living and non-living marine resources. Most notably, it sets out the areas in which states have sovereign rights and exercise jurisdiction. Canada contributed significantly to the negotiation of UNCLOS, which was a long process, and signed the text in 1982.
However, as senators are aware, Canada's ratification was delayed for some time first, because of the concerns about deep seabed mining and second, by the concern about the need to strengthen the fisheries portions of UNCLOS. Fortunately, we were able to achieve both. We have a new Part XI of the implementation agreement of 1994, which deals with seabed mining. More importantly for this committee was the 1995 UN Fish Stocks Agreement, a long title that I will not bore you with. Once those were in place, Canada, as the committee recommended, ratified it in November 2003. Currently, there are 150 parties to the actual agreement.
UNCLOS establishes that within our 200 nautical-mile limit, a state has sovereign rights to exploit, conserve and manage natural resources, whether living or non-living, of the waters superjacent to the seabed and its subsoil. This convention allows us to do more or less what we want up to our 200-mile limit. Beyond that limit, foreign vessels have a freedom to fish. However, this right to fish is not unfettered. UNCLOS directs states to cooperate in the conservation and management of living resources in the area of the high seas, such as those on the nose and tail of the Grand Banks and the Flemish Cap.
Canada is a coastal state with a continental shelf extending beyond 200 miles, and has sovereign rights for the purpose of exploring the continental shelf and exploiting the natural resources, both living, that is, sedimentary species, and non-living, such as oil and gas found on the seabed in the sub-soil. These sovereign rights do not apply with regard to most kinds of fishing.
The second important agreement that I mentioned is the UN Fish Stock Agreements 1995. This agreement is probably the most significant in fisheries after UNCLOS. It was intended to augment the provisions of UNCLOS, specifically the management of straddling and highly migratory fish stocks on the high seas, which occur in the exclusive economic zone of one or more coastal states and in the high seas. The highly migratory fish stocks, such as tuna, are those that routinely range over great distances, both in international waters and in waters under national jurisdiction. The UN Fish Stocks Agreement establishes a strong conservation and management regime, including effective high-seas enforcement procedures for high-seas fisheries. The agreement gives priority to regional fisheries management organizations as the most effective way for states to cooperate in the conservation management of those stocks. The agreement encourages states to cooperate through these regional fishing management organizations, RFMOs, or other arrangements to conserve and manage straddling and highly migratory fish stocks. The agreement elaborates on the duty of states under it to cooperate in the management of the stocks on the high seas. It also details the obligation of flag states, starting with the duty for a state to take necessary measures to ensure that fishing vessels flying its flag on the high seas comply with conservation and management measures adopted by the RFMO. Also, fishing vessels flying its flag agree not to engage in any activity that undermines the effectiveness of those measures. States that are not members of RFMOs are still expected to cooperate.
Canada was a leader in the negotiation of the UN Fish Stocks Agreement, and ratified the agreement in 1999. It took awhile to come into force, which was in December 2001. Thereafter, its membership has grown to 61 parties, about double the number of parties when we last appeared before this committee in late 2002. The number continues to grow. Most recently, Japan and a number of new members of the European community have come on board this year. We hope to have a few more countries but some, such as Mexico and Chile, are not parties for a number of reasons.
It has been five years since the agreement came into force, so this year a conference for the review of the agreement was held in New York. Canada was an active participant in that meeting. The idea was that we were to review how the agreement was operating and to come up with ideas for strengthening its implementation. Many of Canada's priorities were reflected in the outcome of the review. Some of these were: reducing capacity of the global fishing fleet; modernizing and strengthening the mandates and measures of regional fisheries management organizations; developing regional guidelines for fisheries sanctions; and ensuring that post-opt-out procedures and behaviour does not undermine conservation measures and is constrained by dispute resolution.
Many of the recommendations of an international High Seas Task Force, which has met for the last year or so, were also incorporated into the proposals. The recommendations call for performance reviews; developing standards for guidelines for RFMOs; adoption of the model scheme on port state measures of the Food and Agriculture Organization of the United Nations, as a minimum standard; and enhanced international monitoring, control and surveillance. We think it had a good output. The report of the meeting will be reflected to some degree in the annual resolution on fisheries and oceans to be adopted by the UN in the next few weeks.
The next item is regional fisheries management organizations. Canada is a member of several. Some of them are old, such as the Northwest Atlantic Fisheries Organization, NAFO, and the International Commission for the Conservation of Atlantic Tunas, ICCAT. Others have been recently negotiated and some, such as the one in the southern Pacific Ocean, are still under negotiation. A useful trend is that most of the world's fishing areas are now covered by RFMOs.
While there are differences in the provisions and dynamics of the RFMOs and the coverage of the stocks, there are certain common elements: the members receive scientific advice regarding fish stocks and members determine a total allowable catch to allocate among themselves. The members also set conservation measures, such as gear sizes, and the time and area of closures. Enforcement of the conservation measures is generally left up to the flag states of each vessel, the exception being NAFO, which has developed an international regime for boarding and inspection. Decisions in the RFMOs are usually taken either by consensus or a combination of majority decisions with recourse to an objection procedure. In most cases, when a state makes an objection, it does not have to apply the measure.
The regional fisheries management organization that is likely of greatest interest to Canada and to this committee is the NAFO. It manages most of the fish stocks in international waters beyond Canada's exclusive economic zone in the northwest Atlantic, including the nose and tail of the Grand Banks and the Flemish Cap. As the committee has heard from other witnesses, NAFO is undergoing a reform process to modernize it. This process is the culmination of a significant international effort including an enhanced enforcement presence by Canadian NAFO inspectors in the regulatory area; increased Canadian diplomatic interventions; and multiple international initiatives, including the 2005 Conference on the Governance of High Seas Fisheries and the UN Fish Agreement held in St. John's, Newfoundland and Labrador. This major undertaking included many of my department's overseas missions and officers from the legal section. It helped to give impetus to reform of the fisheries governance, particularly on the NAFO side.
In 2005, the NAFO annual meeting initiated a reform process. First, a reform group was established to examine the 1979 NAFO Convention and to suggest improvements to incorporate the principles of the UN Fish Stocks Agreement.
Second, the NAFO Standing Committee on International Control was directed to review monitoring, control and surveillance to determine changes to strengthen the existing regime.
The Minister of Fisheries and Oceans provided an excellent overview of the most recent developments within NAFO during his recent testimony. While this reform process is not yet concluded, Canada has been successful in achieving progress on critical elements of reform and, in so doing, incorporating elements of the UN Fish Stocks Agreement. Elements I will touch on and which are of particular interest to Canada have been that the contracting parties are to base their decisions on the best scientific information available, to apply the precautionary approach and take ecosystem considerations into account, as well as decision-making, which has been a problematic area for Canada.
The objection procedure has been significantly altered to circumscribe the ability of the contracting party to object to its allocated quota and fish it at unilateral levels. Now, under the reforms, once implemented, a dissatisfied contracting party will need to justify its objection before an independent panel, and then only on two prescribed grounds. A dispute settlement procedure is also included, which allows parties to submit disputes to the UNCLOS, the Law of the Sea and the fish stocks dispute settlement procedures. There is also an explicit enumeration of flag state and contracting party duties. At the same time, we preserved the key elements for us of the 1979 convention, which was, first, the special consideration for Canada in allocation decisions and, second, the obligation for NAFO proposals to be consistent with measures adopted by the coastal state.
There is still work to be done on the text. Another meeting of the NAFO council in March will focus on it. We hope at the end of that time that the text will be accepted and that countries will then proceed to adopt it.
At the annual meeting in September, there was also agreement to strengthen aspects of the conservation and enforcement measures, and these changes will be applicable as of January 1, 2007. We do not have to wait for all the amendments to be adopted. Rather, we can start making some real changes as of January 1. We think these changes have been a major step forward and that NAFO will be a significantly strengthened organization as a result.
I will touch briefly on other fisheries instruments. The Food and Agriculture Organization of the UN has been active in fisheries for a long period, as part of its mandate. It is active a bit more on the scientific and technical side. It has come up with agreements on compliance, on a code of conduct and on an international plan of action for illegal, unreported, unregulated fishing. It works in a complementary fashion with the UN Law of the Sea, which is more of a legal institution, and it has helped to strengthen some of the activity against over-fishing.
I would say the major achievement in the last several years has been Canada's ratification of the UN Law of the Sea. The Fish Stocks Agreement obviously came into force, but it was important that the European Union countries come on board. We achieved a real breakthrough with the NAFO reform exercise that is under way, and, we hope, will conclude in March.
I will leave it at that, and I would be pleased to answer any questions.
Senator Cowan: My question has to do with the area of enforcement and dispute resolution, and voting rights and influence. As I understand it, in NAFO, despite the huge significance of this area to Canada, Canada has simply one out of 12 votes. The minister expressed some reservation about trying to exercise too much muscle in NAFO affairs for fear that it would upset the influence that Canada might otherwise have.
In that context, one witness has described the flag state monopoly on enforcement as an Achilles heel in the agreement and in the reform process. I think there is a concern amongst people who are interested and knowledgeable about this whole regime about whether there are sufficient teeth in the reforms to enable actual enforcement rather than talk about enforcement of the good objectives and measures which everyone agrees to on paper. Can you comment on that?
Mr. Ballhorn: Certainly: Flag state control of their vessels is a basic principle. It is hard to convince countries to abandon that and allow others to take over that role. However, in the question of NAFO, we have had this joint inspection regime with EU vessels and Canadian vessels working fairly well together. In that sense even before the reform process we had worked out ways of operating where there were fisheries inspection vessels and they were able to work in close cooperation.
We have had much better co-operation with the European Union in recent years than in years past. I think that is another reason to have some confidence in what we are doing. There are obligations on the flag state country to actually enforce the rules. Under the reform process, we ask them to report on infractions and the enforcement that was done. They cannot go away and say, ``We are not doing anything about it.'' One of their obligations is to come back and report on what has happened as a result of an infraction.
Senator Cowan: Is that as a result of a new reform that did not exist?
Mr. Ballhorn: There was not a requirement to come back and say what happened as a result of the infraction. That is one of the new things. My colleagues, who are a little more up to speed on the details of the agreement, may have other comments to make, but that is something that has been agreed to.
Keith Lewis, Legal Officer, Oceans Law Section, Foreign Affairs and International Trade Canada: If I could just augment what Mr. Ballhorn has said, with respect to the provisions currently in existence in NAFO conservation enforcement measures, states are obligated to do some reporting with respect to the follow-up that they have done. However, this has been problematic for Canada in the past in that we have received reports that the case is pending, the case is pending, and the case is pending. One advantage we have received with the most recent negotiations in September is that I think this problem will be less common and we will receive reports much more regularly. Of course, we follow up as much as we can with the other flag states.
Senator Cowan: You do not sound convinced about that.
Mr. Lewis: I am convinced, senator.
Mr. Ballhorn: For something that has such a small number of members, it depends on the goodwill of members. The willingness of countries to agree to the reforms is a good sign. People were not pulling back. They are willing to be under more obligation, to live up to conservation measures and to report on them. I would say the performance recently by the European Union has been good on disciplining its own vessels. One challenge is that while the European Union has the competence internationally, the actual penalties and the jurisdiction over the vessels are still with member states. They still need to go back, and evidence must be put forward to a court, and a judge must hear the case. Countries cannot guarantee that there will always be a penalty for every infraction, because they do not control the courts, in the same way that the Canadian government cannot guarantee what the courts will do in any particular situation.
The Chairman: I wanted to clarify this because it is a good point. First, what was agreed to recently needs to be ratified by the member states. There is nothing in place at the present time. There is an agreement in principle. There is goodwill on behalf of all those at the table, but all the reforms that were agreed upon still must be ratified by all the member states.
Mr. Ballhorn: There are still a few aspects outstanding that will probably take up a good part of the meeting in March.
Once that is done, the European Union is only one membership. For all 25 members of the European Union, there is only one membership, the European Union. Denmark is there, not for Denmark but for the Faroes and Greenland, and France is there for the islands of St. Pierre and Miquelon.
Within the union they must have an internal process to say yes to that and that is the process to which we are looking forward to hearing. The member states are sitting in the European Union delegation but only the European Commission member speaks.
The Chairman: Will Spain and Portugal need to ratify what was agreed to by the European Union?
Mr. Ballhorn: No.
The Chairman: What is the ratification process within the EU?
Mr. Ballhorn: Within their own internal EU procedures they will decide yes or no to ratify. They have a way of making a decision within the European Union, so within that internal process Spain and Portugal would have a say in that.
The Chairman: Will that be the commission or Parliament or both?
Mr. Ballhorn: I am not sure because it is a complex procedure. They work through ministerial councils and sometimes it goes to Parliament. They would need to make an internal decision to proceed and once that is done, that would bind all the member states.
The Chairman: Perhaps you could clarify later exactly how the ratification process will take place. Is it at the commission level, Parliament level or a combination of both? I am not clear on who ratifies what within the EU.
Senator Adams: My question may be different, especially regarding the UN Law of the Sea. It was ratified in 1982 and we settled a land claim in 1993.
First, I will explain what we do in Nunavut. I have seen a map of the NAFO indicating one part of the area where we catch in the 0B sector. The majority of the catch of halibut in Greenland is in the 0A sector.
Right now, we have quotas of 8,000 metric tonnes from the Department of Fisheries and Oceans. Since 2003, it has been hard to get quotas in Nunavut. Right now only some people in the community get quotas. Right now, we have only 9 per cent royalties from other organizations and other companies. They are taking some of the quotas that we have in the Arctic.
Every year since February, the minister gave Nunavut 8,000 tonnes in the areas 0A and 0B, but a lot of those areas are not good for Nunavut. The policy since the agreement of 1982 is different. We settled a land claim in 1993 and that should be part of NAFO. The Nunavut area has 8,000 metric tonnes but right now we have no control over that area. Some companies are hiring and they are putting flags out for foreigners. From 2003 to 2005 or 2006, almost 100 per cent of the fish caught up there is done by foreigners: that is 8,000 metric tonnes.
As Canadians, and after settling a land claim with NAFO for that 8,000 metric tonnes, why has this happened? Why did the minister give us 8,000 tonnes and why does it not all belong to the community in Nunavut?
Mr. Ballhorn: This is not something I am that familiar with. Basically, the agreement from 1982, that is the UN Law of the Sea, was negotiated but Canada did not actually ratify it until 2003. The main body here that is probably relevant would be Northwest Atlantic Fisheries Organization, NAFO, and there is a fishery allocation by country. What a country does with that allocation is up to that country. That is an area where the Department of Fisheries and Oceans is the expert and not ourselves.
I would have thought if there was any fishing by other vessels it is because someone has contracted someone else to fish. I do not think there are foreign vessels coming there that should not be there, to my knowledge, although there is some allocation to other countries. I will turn to my colleague as to whether he has any more details.
Mr. Lewis: To augment what Mr. Ballhorn has said, with respect to the Northwest Atlantic Fisheries Organization, it specifically regulates in the international waters. In the areas that you are speaking about, senator, there is less than 200 nautical miles because of the geographical proximity of Nunavut to Greenland. Unfortunately, in this particular case, these questions are exclusively within the competency of the Minister of Fisheries and Oceans and we are not able to speak to the questions that you have posed.
Senator Adams: I studied over five years ago about the commercial fishery in Nunavut and the quotas. At one time, the director of the DFO was going to make a policy for Nunavut. He was going to make a policy that no foreigner vessels could come up to the Arctic in the areas of 0A and 0B. Has anything come up in the Department of Foreign Affairs and International Trade about that discussion from four or five years ago?
Mr. Lewis: I have no knowledge of what you are speaking. We could try to look into it.
Senator Adams: Between Foreign Affairs and International Trade Canada and DFO, who is responsible for making policy for NAFO and foreigners regarding the concentration of fishing?
Mr. Ballhorn: NAFO only regulates what is beyond the 200-mile limit. Within 200 miles it is solely up to the Canadian government with Fisheries and Oceans Canada. We would be involved only if it was over 200 miles; anything within 200 miles is for the Canadian government.
Senator Hubley: Thank you for your presentation. It has been said many times over the years that NAFO lacks teeth. Do you feel the elements you have highlighted in your presentation, for example, the science, eco-systems, precaution, decision-making process, dispute settlement resolution, and so on, have sufficiently informed NAFO to ensure sustainable fisheries in the Northwest Atlantic? Do you sense there is a new political will within the organization to make the NAFO reform work?
Mr. Ballhorn: Yes, because of the fact that we could have these reform discussions and come as far as we have. Countries were positive, by and large. Usually, we have had the greatest concern about the countries of the European Economic Community, EEC and how they perform, particularly Spain and Portugal. They were helpful in reaching an agreement on the reforms.
Before that, the fact that we have the joint inspection system with the EEC is a positive sign. There have been several incidences in recent times, one only yesterday, where a vessel was found to be in violation of the rules. It was sent out of the area. That is positive, as far as we can tell.
One frustration of the current system is that a member could object to an allocation and then basically do what it wanted. Now, we have managed to develop a process whereby a country can have an objection but it must go through a process to explain that objection. Then interim measures are put in place and, eventually, it could go to a dispute resolution process. We hope that process keeps people from deciding to object and then proceeding unilaterally. That is another positive reform that was at the top of our wish list. We wanted to find some way to gain control of the unilateral objections.
Once agreed to, countries are required to take the amendments to their respective governments for approval. Other than the time it might take to have those amendments approved by the various parliaments, et cetera, we are not aware that anyone has strong objection to them. As much as possible, we try to move in a consensus way and put things forward that most people could accept. We do not want to have amendments some countries adopt and then bring into force while four or five countries will not apply them. There are only 12 parties to adopt the amendments but we want all of them to do so.
Senator Hubley: For my information, the 12 parties will base their decision on the best scientific information available. What happens in the case of a dispute over that information? What happens if one party says that its scientific information is A and another party says it is B? Would that go to dispute resolution? Would scientific information be in question on a regular basis?
Mr. Ballhorn: I am not aware that it is. The scientists tend to combine their findings into one view of the fish stocks. They take a more precautionary approach in that they do not assume that the numbers are necessarily the highest. They take a careful, conservative approach to the stocks.
Once the science is in place, then the allocation decisions are made according to a key that has been agreed upon. Once the allocations are determined, countries might object. Two countries have objected in recent years to the allocations. Iceland objected for more technical reasons in that they cannot agree to a formula that is about fishing effort. They set a quota that is equivalent to the fishing effort without agreeing to ``effort.'' The Faroe Islands, off Greenland and under Denmark, have had a problem with shrimp allocations. They claim there is more shrimp there than NAFO claims. They went out to fish what was out there. We hope there will be a process in place whereby they can formally present and argue their objection when they are unhappy with the allocation. Through such a process, they will not simply voice their objection and then do what they want to do.
Senator Hubley: That answers my question about a process to resolve such objections.
The Chairman: With regard to the dispute resolution mechanism, we do not know all the details yet. For example, we do not know how the panel will be established and what the guidelines for the panel will be. I assume that nations will continue to fish while the dispute is before the panel but that point should be clarified.
Will the details of the dispute resolution mechanism be in the March text so that committee members will be informed of the guideline details?
Mr. Ballhorn: All the basic material is in the text. We are only part way through to reaching consensus.
There are new provisions on decision-making around allocations. There is a process whereby if countries object, they must go through a certain process of justification, and there are interim measures. If they are still unhappy over time, they can move to dispute settlement. That part has been more or less agreed. What is there has been worked through and that has been the most difficult part to date. Other details are yet to come but we are fairly confident that we have a process.
There will always be the problem of how quickly it goes. Once a country objects, how quickly can a process be set in place to review the objection? We hope it will be a six-month time frame. There is no sense having a decision that is too far into the fishing season.
The Chairman: Can countries fish while their objection is pending resolution?
Mr. Ballhorn: I ask my colleague to respond. It is my understanding that there will be interim measures. They can fish but only up to a certain limit.
Mr. Lewis: With respect to the current draft of the decision-making procedures, when countries have objections to their allocations, they can lodge their objections based on circumscribed grounds. They must put forward their proposal of an acceptable level of fishing, for instance, and allocations. Their proposal cannot undermine the objective of the convention. It would go to a panel procedure for examination of the objections and the alternate proposals made by the objection countries. There would be a time frame during which the state or country could fish to its own unilateral quota. The way in which the process is set up, it would be fairly limited in time.
The Chairman: What do you mean by ``fairly limited in time?''
Mr. Lewis: It would depend on which steps were taken. There are alternate ways to move through the decision- making process involving this panel.
The Chairman: Would it be a question of weeks, months or years?
Mr. Lewis: It could be weeks or months but it would not be years.
Senator Meighen: I want to clarify a couple of issues.
In 2003, this committee heard testimony that expressed a great deal of scepticism about the importance of the fisheries portfolio within the total area of the federal government's responsibilities, particularly with respect to the Department of Foreign Affairs and International Trade. I am sure that you gentlemen are well aware that there has been a persistent belief in some parts of Atlantic Canada that we have advertently, or at best inadvertently, condoned overfishing over the years in return for trade deals for industries in other parts of the country. The minister's advisory panel says that has never been the case. I want to ask you straight up: Have you ever come across any secret deals of that nature to condone overfishing in return for other concessions?
Mr. Ballhorn: Certainly, I have never come across that. In fact, fisheries is usually the one thing that is excluded in the trade area. Most allocations of NAFO are held by Canada. The United States does not have any allocations under NAFO. A large percentage of NAFO allocations go to Canada. It has created tension in the organization. Obviously, others would like more allocation, including the Americans but we have been successful in gaining the lion's share of the allocation.
Senator Meighen: I realize that Canada's allocation is good but there is a belief that we have never been particularly tough on foreign vessels that overfish, not only outside our jurisdiction but also inside our 200-mile jurisdiction. The federal government seems to take a see-no-evil-hear-no-evil attitude.
Mr. Ballhorn: There is an intense and active surveillance process in place in recent years. Under NAFO, there is a joint process with the EEC to board vessels to check fish stocks in holds. That process has had real consequences. As well, the EEC is beginning to change with Spain and Portugal becoming members and the commission having more competence with a European view about fishing. The European Economic Commission has been more helpful on overfishing than they have been in the past. Canada has put more resources into surveillance than we have had for some years.
Senator Meighen: Your testimony is that you are not aware and never have been aware of any secret deals with respect to fishing and Canada giving additional fishing allocation within our zone or outside of our zone.
Mr. Ballhorn: No: Certainly with outside, from time to time some contracting might be done if people do not have the vessels, but that is done on a commercial basis. I am not aware that there are foreign vessels within our waters and within NAFO, whose vessels are there. There has been a much more enhanced surveillance operation and follow-up, certainly much more than there has been in the last few years.
Senator Meighen: Assuming my understanding is correct, can you explain why Canada's position is different than that of the United States on trawling the high seas?
Mr. Ballhorn: I am not aware that it is greatly different. Although there was a report stating that the Americans were against all bottom-trawling, I think it was mistaken.
Canada is a fishing country and trawling is part of the fisheries. One could hardly fish scallops without trawling so the government is looking at it on an area basis to see whether there are sensitivity issues in respect of bottom-trawling. In a recent NAFO reform, bottom-trawling has been ruled out in four seamounts. Generally, there is more sensitivity to the impact of trawling but our direction is to examine the effects on an area-to-area basis to determine which areas to protect rather than have a blanket ban. That would seem to be the consensus of most fishing countries. I am not sure that the Americans are greatly different in their view.
The Chairman: We will come back to bottom-trawling later with Senator Cowan's questions. Is it not a question of freezing the current activity rather than creating a total ban? Most of the testimony we have heard from environmental groups suggests that they want a freeze of the current situation. Obviously, there are regulations inside the 200-mile zone as well as outside the zone with some surveillance and identification. I understood them to suggest a freeze at today's rate of trawling rather than move to a total ban on trawling. Is Canada prepared to support that view?
Mr. Ballhorn: We did not want to rule out bottom-trawling but rather to look at the area where it is proposed to continue to make an assessment of the effects.
Obviously, in the high seas for which there is an absence of scientific knowledge and where there is no fisheries management organization, we would likely be more willing to say, yes, and be more general about bottom-trawling. We have tried to focus on identifying the areas within an area that might be particularly sensitive to bottom-trawling. We will continue with that rather than freeze the current status and say, no more bottom-trawling beyond 200 miles, which has not been the direction of the department.
There has been a great deal of activity to focus on areas of particular concern. It is an issue in some of the new fisheries agreements being negotiated, one in the South Pacific in particular. In some cases, the non-governmental organizations are not at unity so there is a range of views, such that some would like to eliminate bottom-trawling, while some are more aware of what is happening and would like a freeze. There is a range of views and I am not aware of one view only from the NGOs.
Senator Campbell: Obviously, the departments of Foreign Affairs and International Trade and Fisheries and Oceans work together on this file. Who trumps whom?
Mr. Ballhorn: There is a division of labour. Foreign Affairs and International Trade Canada has traditionally provided the expertise on the international legal aspects of fishing and the oceans. DFO is usually notified when an infraction on the high seas occurs. Sometimes the missions abroad of the foreign affairs department involve flag-state concerns. We have done a fair bit of promotion of the Fish Stocks Agreement over the years, as a good instrument, through our foreign missions, et cetera. These activities have usually been in close cooperation with DFO, which has the domestic mandate — within the 200-mile limit — and the regulations. The work of the foreign affairs department tends to be international and in respect of the high seas. We do not have any powers to make allocation decisions; rather we are involved in the negotiations of legal text and in the follow-up of enforcement, to a degree. The foreign affairs department does not have enforcement capacity but officials like to know about it and interface with foreign countries.
Senator Campbell: The question pertains to when the position of the foreign affairs department runs contrary to that of the fisheries and oceans department. I understand that your department is not involved in the day-to-day operations of fisheries. When your view on trawling and fish stocks across boundaries differs from that of DFO's view, who wins? Do Canadian fishers give up their rights for the international position that you represent? I understand your position, but who makes the decision?
Mr. Ballhorn: Normally when we go into negotiations we try to have a Canadian mandate or position. It is not a foreign affairs department mandate or a DFO mandate but rather a Canadian one comprised of both departments. In some cases, the item will go to cabinet for approval of the mandate on a particular negotiation. Often, it is simply a question of the two departments agreeing on that mandate. There is not much difference that I am aware of, although I have been in the job for not quite one year. We know each other well from the day-to-day dealings of the two departments. Perhaps there is a question of emphasis such that we should be more active in some areas than in others but, certainly, if there were a strong difference of view between the two ministers, they would probably take it to cabinet and to the Prime Minister to work it out. We would not sit in a meeting and argue over our respective positions.
Senator Campbell: I did not expect that would happen.
I have a general observation: The two biggest players would appear to be Canada and the European Union. Many countries in the EU have long coastal areas, as Canada has.
There are 12 votes. We have one vote and the EU has one vote. Does that not put us in the position where we can be ganged up on? Should we not have more say in this agreement than just one out of 12 votes, considering it is our fish?
Mr. Ballhorn: It is not our fish, because what we are talking about is beyond the 200-mile limit. The fish belong to anyone who is fishing in that area. By and large, the decisions are not taken by voting; they are taken by consensus. We have done well. Canada has a high percentage of the overall allocations in the NAFO area. That is a point of tension within the organization: that we have done so well on allocations. The fact that the Americans have zero, I find rather amazing.
Senator Campbell: It breaks my heart.
Mr. Ballhorn: The United States is still in the organization. Canada is by far the biggest beneficiary of the NAFO allocations.
Senator Campbell: You say it is not our fish. In fact, these fish do not spawn in England. I am from the West Coast. The salmon spawn in British Columbia and they are caught outside, but in fact they are our fish. We run the hatcheries and we worry about the habitat, and the same thing goes on in the East Coast. We are worried about it. We recognize what has gone on with the cod and that we played a role in that.
It is all well and good to say it is outside the 200-mile limit. The fact of the matter is that those fish swim outside of the 200-mile limit from our country, and so I do not feel any remorse in referring to them as our fish.
I think this is working. I listened to the Minister of Fisheries and Oceans. I have been impressed with him and with what he said to us. I am looking into the future, where I see trouble. We have one vote, and if the organization decides to do a number on us, it can be done and we will have no recourse, because we are in this agreement.
Mr. Ballhorn: For the fish stocks themselves, some are spawned in Canadian waters, but others are high-seas stocks, so they are not necessarily connected to Canada.
Senator Campbell: I am asking for them all to be stamped with a flag.
Mr. Ballhorn: As I said, we do well right now with the allocations and the allocations have not changed greatly. We benefit from the organization. There are very few times that an actual vote is taken. They try to work by consensus.
Senator Johnson: In your presentation, you spoke about the NAFO convention and you highlighted several things. I am interested in the science ecosystems. You said the contracting parties are to base their decisions on the best scientific information available, to apply the precautionary approach and to take ecosystem considerations into account.
Can you elaborate on the ecosystem considerations? What kind of scientific information is available now? What is the cutting edge of this?
Mr. Ballhorn: This is not our forte at the foreign affairs department. We are on the legal side of things. I think all the fishing countries have a scientific fishing establishment in the government, certainly in the case of the fisheries and oceans department. They have experts who conduct studies and carry out various calculations relating to what the fish stocks are and what they are likely to be. That information comes from the fishing ministries.
The ecosystem approach is a concept that has grown up in recent years about how to manage anything in nature: the concept that one must look not only at one species, but at the world in which that species lives and in which it interacts. This is one of those things that is easier to say than to define. For those required to implement the ecosystem approach, it is a challenge in terms of what it really means and what they need to do to implement it.
The precautionary approach is one of the concepts that came out of the UN Conference in Rio de Janeiro in 1992. The basic view is that when there is a possibility that you do not have full science, and if you get it wrong, it can have lasting consequences, you should take a precautionary or conservative approach to making decisions.
With the experience of East Coast fisheries, it has been reinforced that people do not know enough about the science of fisheries. They would like to know more about the science of fisheries and why some regenerate while others do not. It has been reinforced that they should take a precautionary approach when making allocations in areas where they do not have enough science and that they should err on the conservative side. If they think that something is happening with their stock, they should take early measures rather than waiting until they have all the science.
Senator Johnson: More on your side of things, the UN Fish Agreement elaborates considerably on the earlier 1982 UN Convention on the Law of the Sea, especially on the duties it places on states to cooperate in the management of straddling fish stocks on the high seas.
Do you think UNCLOS needs revising to better protect fish stocks, for example, to better recognize the special interests of coastal states such as Canada?
Mr. Ballhorn: In some ways the UN Fish Stocks Agreement is an elaboration of the fishing provisions of UNCLOS. I did not give you the long title, but if you see the long title, which goes about three or four lines, it relates directly back to the Law of the Sea.
The fishing countries that were not happy with how far the Law of the Sea went, such as Canada, and because Law of the Sea was a comprehensive, big process, they finally had to call an end to it because it went on for a long time in the negotiation. The UN Fish Stocks Agreement starts where the UNCLOS left off and elaborates a regime for management of straddling high-seas fish stocks, and also the rights, duties and obligations. The agreement directs countries to cooperate and opts in favour of regional fisheries management organizations so that the people who are actually fishing manage the stocks on the high seas.
We think the agreement is pretty good. Some things could be reinforced, from experience. It has only been in operation for five years. In some ways it has been the standard by which we have tried to get regional fisheries management organizations to reform themselves. It is not often directly applied. Rather, people say: Here is the standard that you agreed to in the UN Fish Stocks Agreement. Now apply it to your various agreements.
This year in NAFO reform we took the UN Fish Stocks Agreement and put the principles, as far as possible, into it. It is the standard. It also allows us to talk not just about things regionally, but we can go to New York and talk globally about how fisheries are doing and what needs to be done on the fishing side. If it was up to us, we would probably have some amendments to the UN Fish Stocks Agreement. It is operating well enough that I think we can probably make changes through other means.
Senator Johnson: Do you think UNFA needs revising?
Mr. Ballhorn: UNFA has only been in force for five years. A report has come out which outlines where UNFA could be implemented more strongly. Whether the provisions need to be changed, I do not know. Usually, it is a major process to revise an international convention and then it takes a while to come into force. At this point we are happy with the results of the review conference, and I do not think anyone is pressing for an amendment.
Senator Johnson: I would like a clarification. Why did it take Canada so long to ratify the UN Law of the Sea Convention? Was it because the European Union had not ratified UNFA?
Mr. Ballhorn: First, there was a big concern by certain mining countries that suddenly there would be lots of deep- sea mining and there was not an adequate regime for that, so that held up ratification by a number of countries. It was a process that developed a new part for the UN Law of the Sea, a supplementary agreement that was drawn up in 1994. People assumed things would happen and they did not. There has been almost no deep-sea mining. Nonetheless, that held up the process. There is still not much likelihood of deep-sea mining, except for valuable minerals. That was the first obstacle.
Over time, through experience with fishing on the high seas, Canada thought that we wanted to have the UN Fish Stocks Agreement negotiated and in force and, particularly, signed onto by major fishing countries before we ratified the UN Convention on the Law of the Sea. Those were the internal dynamics.
At the end of the day, when the fish stocks agreement came into force and we felt that it was operating, we felt confident enough to join the Law of the Sea.
The Chairman: Before we leave this round, I would like to ask a question, and it is with regard to the agreement. We will receive the text in March when it will be approved.
We heard from former DFO officials recently, and they made two points I would like to highlight. It is important that we follow that text. Once things are on paper, they are cast in stone.
One suggestion the officials made was perhaps the ministerial advisory panel could be revived to monitor the text, what is happening with it and whether it fulfills what we want. An advisory panel, as you know, reported on that and then its mandate came to an end.
The first question is: Should the advisory panel to the Minister of Fisheries and Oceans be revived to monitor what is happening now and what will be in the text?
The second question is with regard to the flag-state monopoly. The DFO officials who appeared before us termed that the Achilles heel of the whole thing, the power essentially resting with the flag state.
From a legal point of view, is that cast in stone? Is there anything within international law that can be done to somehow modify or change that power in some way? The agreement will be there. The changes will be there, but the eventual power still rests with the flag state.
Mr. Ballhorn: To address your first question, I think it comes down to what the right process is to look at the agreement. Obviously, once it is complete I presume parliamentary committees might be interested in reviewing where we are at. If there are amendments to a legal agreement, we will need to go to cabinet and look at what we agreed to before ratifying it. There are certainly ways of accomplishing that.
As far as the flag state issue, I think it is a fundamental provision of the Law of the Sea that the flag state has jurisdiction over its vessel. That holds true for commercial navigation as well. It is a basic principle. I do not think we would want to give it up for Canadian fishing vessels either. If we establish another rule, it should also apply to us and our vessels, wherever they might be.
NAFO reform has impact by putting a stronger burden on the flag state to live up to the obligations as a flag-state country that ensures its vessels fish correctly. If they do not, they are subject to court procedures, dispute settlement and penalties if they are found to be guilty of violating the rules. That has been reinforced.
We have a joint inspection and boarding system, which has continued to operate for the last several years with the European Union. We are working to take some of the bad actors off the sea and penalize them. That has been a positive development.
An area where we have had some success as well is where we find vessels that are flagged by a country that does not possess rights to fish in the NAFO area. We have gone back to those countries — they are often flag-of-convenience countries — to ask if they were aware these vessels were out there fishing. Often they are not aware, so we have had the vessels deregistered.
Sometimes it is the same vessel, but every year it is a new country. One year it was Belize, and this year I think Georgia, near Russia, was in fashion. We were able to get them to deregister a vessel. In that sense, those instances were an irresponsibility where someone registered a vessel and did not have a link to the country. In some cases that link can be dealt with and the companies cooperate.
Much about NAFO involves countries willing to cooperate. The agreement has improved considerably in recent years. It is a basic rule. Even now, countries will not join the UN Fish Stocks Agreement because of the possibility of boarding vessels.
Mexico and Chile are conscious of sovereignty, and any possibility of another country coming in and doing things on the fishing side to board one of their vessels is one reason they do not join the UN Fish Stocks Agreement. It is a basic principle in Maritime law and also in fisheries.
The Chairman: We have not asked you about one recommendation of the advisory panel, which was to replace NAFO. Do we try to change NAFO from within, or do we try to create something new? What is your position on that?
Mr. Ballhorn: I think we have completed a fairly major home renovation rather than build a new house.
It is often technically easier for countries to amend agreements rather than to offer a brand new agreement that replaces something in force. It will probably take even more scrutiny from their parliaments to get this new agreement through.
In past years, a fisheries agreement existed from 1949, which was then replaced I think in 1979 when the new economic zones were put in place. This is the first major amendment to the underlying agreement. We think the way to go is a major renovation of the agreement, of the organization and improvement to both.
We have updated it very much. We think it would have the same results. We would not get any more by sitting down and starting from square one than by doing what we recently did in Halifax.
Senator Cowan: I wanted to return to the issue of bottom-trawling initially raised by Senator Meighen. You discussed that topic briefly with our chair.
A few moments ago, while you discussed issues with Senator Johnson, you said that Canada generally takes the position of cautious conservatism in these matters. It struck me that, with respect to the moratorium, we have had witnesses before this committee who have indicated that a moratorium is not a total ban on bottom-trawling everywhere at all times but simply in areas where it is not now conducted and in areas outside NAFO.
The minister indicated when he was here that he was concerned the moratorium was a thin edge of the wedge, as the chair said, that may lead to restriction on bottom-trawling within our 200-mile limit.
There is growing support for this moratorium. I wanted your understanding as to what the proposed moratorium actually covers.
In view of your position, as stated to Senator Johnson in another context, about the conservative approach that Canada takes on this issue, why would we not support this moratorium that would not affect unregulated areas and where no one is bottom-trawling now?
Mr. Ballhorn: I am not sure only one proposal is out there. I am not sure which countries are in favour of the proposal. Much of this has come from the NGO movement, so there is not only one perspective there.
Our view has been — and probably Canada is more conservative — first, that we are a fishing country. We are bottom-trawling. We have big fisheries within our 200-mile limit. There is a need for a certain degree of consistency with what we do within our waters as well as on the high seas.
We are also not a country that has a big deep-sea foreign fleet going way beyond our own waters. I do not think we have a great problem with a proposal in the South Pacific.
Senator Cowan: Does Canada support a moratorium on deep-sea bottom-trawling?
Mr. Ballhorn: It is my understanding that the policy position is that we do not want a ban on trawling per se but rather want to focus on areas of particular concern where bottom-trawling would have a negative impact on the seabed. We have not said that, for all purposes, we would ban bottom-trawling in a huge area.
Senator Cowan: I am talking about a moratorium, but I suppose that at some point a moratorium becomes a ban.
Mr. Ballhorn: Yes, if it is not lifted. The industry itself has strong views on this area. The fishing industry is worried that these widespread moratoriums are the thin edge of the wedge. They are worried about blanket moratoriums. They prefer to focus on having more protected areas. There is a move toward marine protected areas around seamounts, for example.
Senator Cowan: What areas does Canada consider to be legitimately subject to a moratorium, presumably pending further scientific research?
Mr. Ballhorn: NAFO has agreed that we will not allow bottom-trawling in four seamount areas because of the possible impact. Spawning is usually done around seamounts.
Senator Cowan: Is our support for a moratorium limited to those four seamounts?
Mr. Ballhorn: That is an example of something to which we have agreed recently. That is in the NAFO reform areas.
The issue is still under discussion. There is discussion about this in New York, but it would have to be put into effect in individual regional fisheries management organizations. We play our strongest roles in NAFO, and the Atlantic tuna one is an example. We are involved in others, but we do not have major economic interests. We are involved in the Western and South Pacific, where this has played out a bit more.
Senator Cowan: Does the proposed moratorium cover regulated bottom-trawling in the NAFO area?
Mr. Ballhorn: It is a general one. Whatever is proposed in New York where this issue is taken up would not override what NAFO agrees to. The regional fisheries management organizations are sovereign in the area they regulate. To make this happen, each regional fisheries management organization would make a decision on bottom-trawling. I do not think that making it in New York globally would have any impact because it would not override what the regional fisheries management organizations agree to.
Senator Adams: I want to go back to what Senator Campbell earlier asked. The last time we heard from representatives of NAFO was three or four years ago.
Does Canada have any control outside of the 200-mile limit?
Mr. Ballhorn: Canada controls everything up to 200 miles. NAFO does not control within 200 miles of the coast.
Senator Adams: We were told at one time that Canada has 95.7 per cent of the quotas outside the 200-mile limit, yet we do not have control over that: it is in the control of the European Union. Is that true?
Mr. Ballhorn: NAFO regulates beyond the 200-mile limit, which is the high seas. While it does have a one country, one vote principle, an overwhelming amount of the quotas are allocated to Canada. Relatively little is allocated to everyone else. As I mentioned, the United States has no allocation under NAFO at all.
Senator Adams: We do not benefit from it.
Mr. Ballhorn: We do. The allocation is to Canada, and in turn it is allocated to Canadian fishermen to fish it. We have 80 per cent or 90 per cent of the total allocations. Canada and no one else benefits from that.
Senator Adams: How do we benefit? Do we sell our quota?
Mr. Ballhorn: No: It is Canadian quota. How Canada deals with it is a domestic issue, but it is my understanding that most of the quota is caught by Canadian vessels. In fact, it becomes a sensitive point when it is allocated to anyone else. In a case where someone does not have the right vessel for the fish to be caught, they may contract with a foreign vessel, but that contracting is done as a commercial contract; it is not that the vessel is entering our waters without permission. It is a commercial transaction.
Mr. Lewis: There are certain protections within the NAFO convention for Canada. We spoke about some of the successes of the recent negotiations. One thing we focused on was the preservation of the heart of the 1979 deal, and that was the special allocations for Canada. While it is true that NAFO runs on the one country, one vote principle, there are rarely votes. Certain standards are set up in the convention that explicitly protect Canada's allocations.
Senator Adams: We have 95.7 per cent of the quotas. Are Canadians able to fish there and bring the fish back to Canada? I have heard that the fish does not come back to Canada but mainly goes to Europe.
Mr. Ballhorn: If it is allocated to Canada, it is Canada's to control. Canada can fish it or contract the fishing out to others, but that is within our control. If it is allocated to Canada, that is Canada's fish. No one else can take it except with our agreement.
Senator Meighen: It is my understanding that as a result of the so-called turbot war in 1995 there was an agreement or regulation that all vessels in NAFO-regulated areas carry onboard observers. The press release of September 22, 2006 from DFO says, among other things, ``captains on vessels that do not have 100 per cent observer coverage.''
A vessel must have either zero coverage or 100 per cent coverage. If an observer is on board, that is coverage. Could it be half coverage? Perhaps you can enlighten me on that.
I suspect, then, that the signatories to NAFO did not all have the observers. Now we are trying to lessen their dependence, so are we giving in to the fact that we were not able to enforce this regulation? The release talks about a lessening of dependence on onboard observers by reporting in real time. My uneducated assumption is that if you phone in your catch report there is more likely to be misreporting than if you have an onboard observer. Why do we encourage that?
Mr. Lewis: In the NAFO conservation enforcement measures there is also a pilot project to examine the effectiveness of the observer program. In cases where there is not an observer on board a vessel, there are certain other mechanisms to test. There is required observer coverage, although I do not have the exact numbers with me.
Senator Meighen: Am I right or wrong that, following the turbot war, all signatories to NAFO agreed to have an observer on board?
Mr. Lewis: It is my understanding that immediately after the turbot war there was a provision for 100 per cent observer coverage.
Senator Meighen: That did not happen?
Mr. Lewis: No, it did happen. Largely, there are observers on each and every vessel. There was a pilot project to assess the effectiveness of the observer program.
Senator Meighen: How do you assess the effectiveness of an observer program without observers?
Mr. Ballhorn: We have more infractions where there are not observers. There are other ways of checking. Basically they check what is in the holds to see if it is consistent with what is supposed to be there, so the issue is whether there is an observer there all the time or whether there is another place along the way you can go in and check the holds.
Senator Meighen: You have me confused.
Mr. Ballhorn: It is like having a policeman on the street all the time or some of the time.
Senator Campbell: This makes no sense to me. If you run a pilot project and say we will take five boats and not put an observer on them and then check to see if they are cheating, of course they will not cheat because they know you will check. If you have a pilot project, you need to take all the observers off and then check them randomly. Even in police work you cannot say if crime happens at this corner it is because we do not have a police officer there.
Mr. Ballhorn: I do not know whether you have fully described what the test is. It is not something we are involved with.
Mr. Lewis: It is much more of an operational issue. Officers from the Department of Fisheries and Oceans could give you more information. The pilot is more on a vessel basis.
Senator Meighen: Is cost the reason that there are not observers on every vessel?
Mr. Ballhorn: Yes: It is a cost for us, the European Union, for vessels and everything else. Obviously people are looking at whether this is the only way we can do good surveillance.
Senator Meighen: That is what the real-time reporting is supposed to identify?
Mr. Ballhorn: All this is basically to find whether we can have good enforcement with less cost.
Senator Meighen: Finally, the master or whoever phones in and reports that they have 10,000 tonnes of redfish: how do we know the truth is being told, by random checks, as Senator Campbell said?
Mr. Ballhorn: There was a case where they overreported on shrimp and they caught some other type and stowed it there. These types of things happen. I guess observers went on board and found it, and they were told to get out of the area.
Even with an observer all the time, people have to go home occasionally. There are always gaps in this coverage; it is a cost element. The European Union has probably raised some of these concerns about the surveillance. Is it really needed? Is the issue still the same? Therefore, can we look at other ways of providing surveillance that is less costly?
Senator Johnson: Canada and the EU began joint patrols of NAFO regulatory areas earlier this year. Do you have any information on how that is going?
Mr. Lewis: Yes: This summer there was an EU inspector placed on a Canadian platform and they undertook some inspections of vessels in division 1F of the NAFO regulatory area, and as a result there were two citations to vessels that were fishing in that area. I believe that is the only instance up until now. The purpose, as I understand it, of having the joint patrols was also to develop common understandings between the inspectors from the Canadian NAFO inspectors and the EU NAFO inspectors. I understand that has been successful.
Senator Johnson: This means they were refused port access, refuelling, supplies, et cetera. Is that the punishment?
Mr. Ballhorn: What happens depends upon the infraction. There are degrees of infractions. In some cases they are told to go out of the area and to go home. There are various ways of disciplines, by and large.
Mr. Lewis: We are dealing with vessels that are flagged to contracting parties in this particular instance. It is up to the flag state to undertake the necessary enforcement when faced with those infringements.
Senator Johnson: Do you think patrols are a promising solution or partial solution to this problem?
Mr. Lewis: That is an operational issue. It is too early to assess at this point, senator.
The Chairman: To conclude on that point, would you agree that only when Canada has shown muscle have we had changes in NAFO? The Estai is the latest incident but there were others before that some time ago. Would you agree that the changes in NAFO have come as a result of Canada taking a strong position in exercising its own national muscle?
Mr. Ballhorn: That has been an important one but probably not the only one in the sense that there has been a change within the European Union. With the commission having more control over fisheries, it is probably taking more of a European-wide approach. It is probably easier to deal with them than directly with Spain and Portugal.
Also, there were pressures when countries had large fishing fleets and too many vessels for the fish that were there. There has been a change of view in a lot of countries where they would back their fishing vessels no matter what. People are much more aware now of overfishing and what it can do to stocks. There has been a willingness to look at more controls, rules and enforcement.
Canada being in the forefront of new rules and enforcement and, in particular, on patrols and physically being there is an important part of that. The fact that there has been a change of view in the minds of some of the European countries as well is important.
Senator Cowan: Excuse my ignorance on this issue, but are vessels fishing in these areas required to carry some sort of global positioning instrument, GPS?
Mr. Ballhorn: That is a good question. I am not absolutely sure but they probably do. I think they have to report where they are supposed to be. When they are out fishing they must fish a certain amount in a certain area. I am pretty sure they must have a GPS system to keep control of them.
Mr. Lewis: There is a requirement for vessel-monitoring systems and they are satellite-based.
Senator Cowan: We do not need to send our vessels or surveillance aircraft out to see which vessels are where?
Mr. Lewis: No: Vessels flagged to a contracting party operating in a NAFO-regulated area will have this system that is reporting. I do not know what the regularity is; it may be hourly. Our inspectors are well aware of where these vessels are at all times.
Mr. Ballhorn: If they are not in the right area, you zero in on them to say, ``What are you doing here? You are supposed to be there.''
Senator Cowan: I accept what you said earlier, when we discussed enforcement and the willingness to abide by the rules, namely, that each sovereign state has its own judicial system, courts, and so on. However, is there a move to develop a common set of penalties that can be enforced in the member states? I think that one could develop a list of offences and then develop some penalties that then would be incorporated into the domestic law of these member states. Then, if you overfished or were caught using a prohibited type of gear, providing you were convicted by the courts of Canada, Portugal, England, Iceland or anywhere else, you would face the same penalty. Canadian fishermen caught using prohibited gear would be fined a certain amount and some lesser amount by a Spanish court. Is that not possible to do?
Mr. Ballhorn: In the recent NAFO, we have some language that talks about the penalty being proportionate to the offence but we have not gone further than that.
With the European Union it is a challenge even for them because of the way in which the jurisdiction works. By and large, the individual EU member state has jurisdiction over this area. Even in the European Union, they do not have uniformity. I think they would have difficulty achieving uniformity because I do not think the organization has any clout over the member states. They cannot make it happen. The member states themselves would have to agree.
There has not been a big push on this. I do not know whether there is anything in the Food and Agriculture Organization of the United Nations, FAO, or if there are some more voluntary measures. Perhaps Mr. Shewchuk has more information here.
Michael Shewchuk, Legal Officer, Oceans Law Section, Foreign Affairs and International Trade Canada: This issue arose at the review conference earlier in May of this year. The idea was to interest states in the idea of developing regional guidelines for sanctions. One assessment made during the review conference was that the sanctions that had been made by states were not adequate enough in severity to actually deter offences. One recommendation made by the review conference was to develop regional guidelines for sanctions so that flag states can evaluate their own sanction systems against those guidelines to determine whether their sanctions are adequately severe to deter offences.
Senator Cowan: In terms of catching a vessel in the area doing something it is not supposed to do and then sending it home, what assurance do we have that the evidence is not destroyed between here and home so that, by the time they get home and face the judicial system of the member state to which they belong, there is nothing left?
Mr. Ballhorn: In recent times, we had a Canadian fisheries officer there when the vessel went back to the home port to be unloaded, although sometimes they had to wait around because the vessel did not want to unload with the fisheries officer there.
Senator Cowan: I think we have heard evidence about that.
Mr. Ballhorn: That has improved. We have had better cooperation from Spain and Portugal on those things.
As far as going into the local court, sometimes the local court might be more favourable to the fishing community than it otherwise might be. It also depends on the penalty regime that exists. You then fall back on whatever the legislation in the country happens to be. There is definitely a need to strengthen that and to have more uniformity.
There is an economic penalty involved. If you sail out to a NAFO zone and you have to stop midway through your fishing to go home or to go somewhere else, you have paid an economic price. In that sense, that is probably more effective.
Senator Johnson: That is fascinating.
The Chairman: Before we leave and before I thank our guests, I want to raise an idea that came from Mr. Ballhorn regarding the discussion of the March text. The idea was that perhaps the text might be submitted to the committee.
Would you like me to write to the minister on your behalf, asking, ``Can we see the text and examine it when it is finalized?'' Is that a good idea?
Senator Johnson: I think it is an excellent idea, chair.
The Chairman: Are all senators agreed to that?
Senator Cowan: Of course.
The Chairman: Yes.
Mr. Ballhorn: You might want to add also the change in the guidelines of the Standing Committee on International Control, STACTIC. Some things are not actually in the text but it deals with the fishing practices themselves. You might want to look at that as well.
The Chairman: The text plus what?
Mr. Lewis: The NAFO Conservation and Enforcement Measures.
Mr. Ballhorn: These are supposed to enter into force as of January 1.
The Chairman: Is it agreed?
Senator Adams: Agreed.
The Chairman: Thank you for being with us today and for being so helpful by answering our questions.
The committee adjourned.