Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 4 - Evidence, November 2, 2006
OTTAWA, Thursday, November 2, 2006
The Standing Senate Committee on Fisheries and Oceans met this day at 10:45 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 am calling the meeting to order and welcoming everybody. We are not on TV this morning, but that should not deter us. I want to welcome Philip Saunders, Dean of the Dalhousie Law School and an associate in the Dalhousie Marine and Environmental Law Institute. Mr. Saunders comes from a fishing background, which includes both PEI and Cape Breton. He is well-qualified to speak to us, not just from knowledge but from his own personal background. We welcome him and ask him to give us some of his thoughts, after which we will proceed to questions.
Dean Saunders, welcome, and let us hear from you now, please.
Philip Saunders, Dean, Dalhousie Law School, Dalhousie University, as an individual: I would like to thank you for the opportunity to address you today on the subject of developments in NAFO and the status of fisheries beyond our 200-nautical mile limit on the East Coast.
Looking back at some earlier documents, I found that in 2003, I prepared a background paper on legal and policy options for the management of straddling stocks in the northwest Atlantic for the Royal Commission on Renewing and Strengthening our Place in Canada.
At that time, both the government of Newfoundland and Labrador and the House of Commons Standing Committee on Fisheries and Oceans recommended that Canada assert something called "custodial management'' over areas or, perhaps, just over certain fisheries beyond our current 200-mile limit on the East Coast.
In my review at that time, I argued that approach was incompatible with international law, but it was also, perhaps, more important, likely to lead to even greater problems in the fisheries within the NAFO management area. The assertion of custodial management would have meant the dissolution of NAFO, and it was likely that Canada would not have been able to make its declaration stick against other states that would inevitably object and defy Canadian attempts to assert jurisdiction.
Not surprisingly, that recommendation was ignored in the commission's final report. In the year since, it seems that the silver bullet of custodial management has lost some of its lustre, in part, because Canada is now a party to the 1982 UN Convention on the Law of the Sea and, as such, is subject to the mandatory dispute settlement procedures contained in that convention.
I normally try to steer away from guaranteeing outcomes to legal disputes, but if we asserted jurisdiction of that type beyond 200 miles, we would be forced into dispute settlement and we would lose. Although that idea has died away to some extent, it did not prevent it from becoming, briefly, an election issue in 2006, with the promise that custodial management would be introduced on the Grand Banks within a period of five years. Instead, in 2003 and, I suppose, continually since then, there was tremendous dissatisfaction with the operations of NAFO as an international regulatory body, both structurally and in its operational side. The complaints against NAFO were familiar and were well summarized in the report of the May panel in 2005.
First, with respect to the decision-making procedure of the organization, the procedures work against good management. Countries with small interests exert too much influence via the voting procedures, and, perhaps, more important, there is an objection procedure which allows parties to effectively ignore management measures with which they disagree.
Second, there is a lack of serious enforcement mechanisms with too much reliance on flag state enforcement in a situation where flag states have proven they could not be trusted.
Third, the report noted the absence of any mandatory dispute settlement procedure by which failures to abide by NAFO rules could be dealt with in an impartial, binding manner.
More recently, the May panel and others have added to this list the failure to incorporate sustainable development principles and the precautionary approach to fisheries in the NAFO convention, which is, at heart, oriented towards effective exploitation. It is a fishing treaty as much as a fisheries management treaty.
It has to be acknowledged that some of these complaints over time have been exaggerated or are perhaps out of date. The objection procedure achieved mythic proportions at times as the obstacle of NAFO but as the minister acknowledged when he was here, in the post-turbot war era, it has only been invoked rarely. It has not been a common occurrence at NAFO. As is shown in the report of the May panel, it seems to have been agreed that NAFO was largely ineffective in too many important respects. The question that remains, then, is the same one we were dealing with in 1994, 1995, 2003 and 2005. What do we do about it?
The May panel summarized four essential options the first of which is to renegotiate aspects of the UN Convention on the Law of the Sea and the UN Fish Stock Agreement, or UNFA, which is a companion piece to that agreement. Both of these were seen as non-starters. I think that is right. The second option was to assert custodial management, which the panel correctly concluded would not work. The third option was to reform NAFO, which the panel concluded was not possible given the fundamental flaws in the structure and operations of the organization. The last option was to negotiate the creation of a new organization with improved decision-making, better enforcement, real dispute settlement and a commitment to ecosystem management, precaution and sustainable development. The final option was the one they recommended, with the caveat, I think an important one, that while attempting to replace NAFO, Canada should remain a member to avoid the creation of a jurisdictional vacuum which would lead to a worse situation, the same problem that I mentioned that I felt existed in 2003.
I did prepare one of the background papers for the May panel, but I was not entirely convinced that complete replacement of NAFO was necessary or that it would be as complicated and time-consuming to simply reform NAFO. Negotiation of a new convention and the delays in bringing it into force would be substantial. Both options, in any event, rely on the willing, good-faith participation of the current parties to the exercise. You will not get the results you want in negotiating a new convention from parties that would obstruct the reform of the existing convention. In a sense, you have the same preconditions.
Since the issuance of that report, events have moved in the direction of reform for NAFO. It is important to remember for the sake of understanding how difficult and time-consuming these processes are that the first key step was the creation of the reform process, including the working group on reform at the September 2005 annual meeting of NAFO. The minister, in his press statements about the results of the September 2006 meeting, made reference to all of this progress occurring essentially in the previous seven months, but it must be remembered that it, in fact, has been a longer process and that the ball started rolling in September 2005.
Where are we now in the process of reforming NAFO that began then, and will it amount to anything? I am no expert on the practical workings of the fisheries management. You have had people appearing before you who are experts. From a legal standpoint, I see important signs of progress that I would not have expected in 2003 or even in early 2005. This is, however, and I have to stress this, based on the public information that I have had access to, and the final documents, when they emerge, may yet reveal that the devil is in the details on this issue.
If we look at some of the problems with NAFO as identified in the May report, and at least the public accounting and press releases and elsewhere as to what was decided in September, what has happened? For surveillance and enforcement, the press releases of both NAFO and DFO after the most recent meeting refer to two important changes. You have had earlier testimony about these changes. First, there was an agreement that vessels engaged in certain serious violations, including misreporting and fishing moratoria species, will, upon inspection, be ordered to port.
Given that Canada has the power, under both NAFO and UNFA, to carry out inspections of other member states' vessels, this could be a very useful power; one that earlier witnesses have noted can impose very significant costs on offending vessels. If this report of the agreement is accurate, it is an improvement over the provisions of UNFA, which apply more generally to regional fisheries management organizations around the world. Specifically, article 21(8) of the UNFA, which I think Mr. Applebaum referred to when he was here, allows inspection by members of the organization of other members' vessels, but only allowed further steps to be taken, such as ordering the ship to port, if the flag state failed to step in and take over. Even if this new agreement allows the flag state to take over the case after inspection, if the requirement to return to port for full inspection is truly mandatory, that is an important advance. In 2003, all I could suggest, what I advocated, was to use the UNFA procedure as a way of interfering with or making life more difficult for problem vessels — that is, Canada could inspect and hamper their operations to some extent. This new approach, if it is concrete, is an advance on that suggestion.
Another important improvement, again dependent on the details, is the introduction of guidelines for what constitutes an appropriate penalty for certain types of offences. If this is seriously imposed, this is a major improvement over the UNFA, which is the only other alternative. The UNFA required flag states to take action but is not terribly specific about the nature of that action, leaving a lot of — I will use a technical, legal term — "weasel room'' for the parties who might be acting in bad faith — that is, we will take other vessel back, but the penalties just do not seem to come.
Prior to this step, which has now been taken by NAFO and which I understand is to come into effect in January, the best I could have suggested would be to track the behaviour patterns of certain states in imposing penalties. If the evidence supported a case, force a reluctant or recalcitrant party into dispute settlement for consistently failing to live up to their obligation to impose appropriate penalties. However, I would have had to admit that that was a difficult case to make over time. The new guidelines, at least as they have been described in public, should be a significant improvement over that other regime.
The other reforms that are mentioned in the DFO press release and that were addressed by Minister Hearn before this committee relate to the problems of the objection procedure and dispute settlement. To put this in context, we should remember that the UNFA brought all parties to the agreement within the mandatory dispute settlement procedures in the UN Convention on the Law of the Sea. It adopted those procedures by reference. This would be for disputes related to the interpretation and application of regional fisheries management agreements like NAFO.
The point that was addressed at the recent NAFO meeting seems to have been more specific, and that is that it sets up an impartial panel process with appeal options into the dispute settlement procedures for resolution of disagreements over objections to management measures. This is the objection procedure. An objecting state would have to justify itself before a panel and have a burden of proof to do so. According to the testimony of DFO staff, which I have read, this process would include the continued imposition of the management measures that are being contested until the dispute settlement process was complete. That is an important aspect.
What is not clear to me, however, is the exact status of this proposal. The DFO press release refers to improvements that "were made'' at the meeting. This is consistent with Minister Hearn's appearance here where he referred to Canada having "succeeded in placing elements of UNFA, into both a new NAFO convention and the strengthened monitoring control and surveillance procedures measures.'' The NAFO press release, after the meeting, said the following:
NAFO is developing an improved decision making process within the Organization. A new objection procedure is being considered to place extra burden on individual parties that do not want to implement Commission decisions. The planned provisions foresee a mechanism for impartial review panels and dispute settlement procedures.
I assume that since the NAFO convention cannot be amended by the annual meeting and must be done so by a process of amendment by member states, the NAFO press release is more accurate and these are pending changes. This should perhaps be clarified by the committee, but in any event it seems clear that the steps being taken, assuming they go through to completion, are moving in the right direction. The same is true of the attempts to introduce elements of precaution and sustainable development, but for these, too, my reading is that they are still in the development stage and are not in place.
In sum, there is evidence that I might not have expected a few years ago, but evidence that NAFO has, for the last year or more, been moving perhaps slowly in a more productive direction. In all of this, we are continually faced with the challenge of balancing the freedom of the high seas, in which Canada and other countries have legitimate interests, with the fear of unrestricted coastal states exercising those freedoms resulting in permanent destruction of important resources. The process of achieving that balance is difficult, time consuming and frustrating and I do not think it is over. I do think that we are seeing real progress in the reform process that is going forward.
The Chairman: Just before we go to questions, I would remind all of us that we had decided last time to ask for a copy of the text that will be finalized in March. Before the January decision, there will be a text in March and we have asked that it be submitted to this committee so we can go over it. As you have said, the devil is in the details and there are many words that are not very clear at all. The clerk is drafting a letter to the minister to ask that it be referred to us.
Senator Cowan: I have a question or two about the voting procedure now and in the future. As the chair said we do not have the language yet, so we will have to wait. As I understand it now, each member state has a single vote, so there is no recognition of the fact that Canada is the largest and perhaps most important member of NAFO. I would like your views on whether it is reasonable for a country like Canada to expect to exercise more than one vote amongst equals.
Second, I think it was Mr. Applebaum who suggested that under these new arrangements changes in setting up these dispute mechanism panels would require a two-thirds vote rather than a simple majority. That would make it easier for some state trying to block this to rally the troops to prevent Canada, or any other state alleging that there have been some harm or some infraction, from getting the mechanism, good as the mechanism may be, set up and functioning. Can you give us a view on that, recognizing that you have not seen the document?
Mr. Saunders: I was handed a draft a few moments ago; some of this is coming forward. I agree that moving to a two-thirds majority to get something through is not a progressive step. After you fail to get agreement by consensus, which is the first approach in the convention, the simple majority was at least better. If you have to get a full two- thirds, that can be very difficult and could be an obstacle.
With regard to the second point on the weighted voting, I have not seen anything in the releases that have referred to progress on that issue. I think it was recommended out of the May panel and in the background papers to that panel. It is something that ought to be there. I am sure there would be very difficult disputes as to how you achieve that weighting and what would happen if a country came in later and developed a stronger interest over the fisheries. In time, you would almost have to have a procedure for adjusting the weighting over time as industries change. The principle that a single vote is a single vote in these organizations does not seem to conform rationally to the nature of the interests in the fishery. It may be a difficult sell for sovereign states to accept that they are operating on a weighted voting pattern, but it is a reform that has been suggested and it makes sense.
Senator Cowan: Last week, officials suggested that we need not be too concerned about that because look at how well Canada had done in getting quota and look how poorly a powerful nation like the United States had done in getting quota. Certainly, nothing that I have heard indicates that there was any serious movement towards getting away from one state one vote.
Mr. Saunders: It may be simply unrealistic to expect it, dealing with sovereign states in an international organization, which traditionally would look upon one state one vote.
I do not think the quota measure is necessarily the best measure. There are many other management measures that Canada might want to take and an interest in the fishery may bring a stronger interest in the conservation aspect as well. Getting more of the quota, because you have more of the fleet, is probably not as good a reflection as just what is needed in terms of the voting procedures.
Senator Cowan: We had some evidence with respect to the proposed new enforcement measures and an emphasis on the requirement that a vessel would have to go immediately to port. The point was made that if that is true, if an allegation is made and that vessel has to go to port, then there is a huge economic loss regardless of whether anything comes of the investigation and/or future prosecution. I would like your comment on that.
The other point is on the business of the ability of a flag state, a signatory, to refuse to recognize quotas that presumably are set in recognition of conservation measures, fish stocks and that sort of thing, and the ability to continue to fish on and have the dispute settled another day.
A witness was asked last week, how long all this would take. Would it be weeks, months or seasons? I do not think we heard a clear answer as to how quickly that would kick in and what a state would do or could do while this resolution was ongoing.
Mr. Saunders: On the port trips, and on the sending to port on inspections, again I have not seen the wording and you are quite right, it depends on how mandatory "mandatory'' is here. If it is as described — and I read the testimony as well — it is a very significant improvement in my view. They seem to be very clear. I cannot remember the individuals, but the DFO staff stated that this would be a requirement and the one thing I would look for in the wording, because it is wording that is in the UNFA, is there any "out'' by way of the flag state stepping in to take over the case.
The UNFA operates on the basis that the inspecting state can do it unless the flag state insists on taking over. The flag state did not have a mandatory requirement under the UNFA to send to port.
It would be nice to see the wording and to know that if the flag state steps in, is it still mandatory that the ship go to port. If it is, then that is significant, particularly for vessels that may be prevented from entering Canadian or other ports. St. Pierre may be available, but for a vessel that had to go back to Spain or Portugal, you have vessel downtime and time not fishing. That would be a significant impediment to illegal activity and a real on-the-spot disincentive.
The second question concerning the refusal to recognize the quotas and the length of the dispute settlement process, I read that passage as well and I am unclear on how many steps are in the process. The one point the witness was clear on was the measures continue to be in place until they were overturned by a dispute settlement procedure. If that is the case, and if that comes through in the final wording, the big advantage is that the onus is on the objecting state to get the measures overturned; and the measures would stay in place until they are overturned, so they are waiting for the end of the process.
Senator Cowan: If that were the case, that would be significant.
Mr. Saunders: Yes, that is a significant advantage and a big improvement over what is in place. There is also reference to an appeal process to the International Tribunal on the Law of the Sea, ITLOS, which is a panel created under the Law of the Sea convention. I would like to see how the interaction of that panel's jurisdiction under the UN Fish Stocks Agreement and its jurisdiction under the UN Law of the Sea convention is handled in terms of its interaction with this agreed dispute settlement process in NAFO.
An interesting issue in international law is the proliferation of dispute settlement processes — how they overlap with each other and how potential conflicts are handled between them. It is not as simple as in the Canadian court system, where the Superior Court steps in establishes the jurisdiction. These are complementary and equal courts or tribunals. I wonder whether they are taking away the jurisdiction of the UN Law of the Sea dispute resolution process to the extent that this NAFO jurisdiction substitutes for it.
In the case involving Australia and New Zealand with Japan over southern blue fin tuna, under an arbitral tribunal from the UN convention, the tribunal was reluctant to step in in any case where there was a dispute settlement procedure available under another treaty. The UN Convention on Law of the Sea is generally structured that way, that if you have some other dispute settlement process, they will defer to that. It will be interesting to see how this one handles that situation.
That is a long-winded way to get to the problem, which is that ITLOS, unlike most international organizations, has an effective and quick procedure for interim measures. The tribunal has a mandate in its procedural rules to give priority to interim measures cases and it has been quick in getting them — within weeks.
If a situation arose where a party to NAFO wanted interim measures to be taken pending the final resolution of the dispute, the tribunal would be a good place to get them. The question is how much the tribunal's jurisdiction has been ousted by this agreement within NAFO. On that, I will not know, until I see the wording.
The Chairman: We are raising more questions than answers all the time. We all suffer from that problem. We will have to wait and see the text. Maybe we could have you back when we do have the text.
There are tradeoffs as a result of the reform; the observers were taken away. With fewer observers, there is less evidence to take a ship to port. This is what I mean by the tradeoff. There is a weakness in the number of observers, which is important to the discovery of who is overfishing.
Mr. Saunders: The observers are a present force that discourages these activities. On the other and — and I am not an expert on the operational enforcement, I defer to some extent to the DFO people — there have been great advances in the electronic monitoring side, and the ability to understand what these vessels are doing by means of electronic monitoring. If you can beef up the number of inspections and also the joint inspections, getting the EU seriously on board for this, that may compensate for that gap; but, again, that is not my area of expertise.
Senator Baker: On the electronic monitoring I noticed that at the end of last month, the tender call closed for NAFO for electronic monitoring of foreign vessels — not of Canadian vessels, because they have had electronic monitoring for the past two years. No matter Canadian boats are fishing, if that monitoring system ceases for any reason, they must return to port. I notice there are an awful lot of cases pending in the provincial court in Newfoundland for vessels that did not return.
The NAFO tender call last month said for the monitoring of, at any given time during the year, from 60 to 100 factory freezer trawlers in the NAFO regulatory zone. That is on any given day; that shocked me. That is what the tender call says and tender calls do not lie. Yet, we have been told that the numbers of foreign vessels fishing in the NAFO regulatory zone has gone down to about 40 a day. This tender call says from 60 to 100. I would probably go where the money is, namely, with the tender call.
My first question relates to dragging on the high seas — and I will put this in a legal way. The other question relates to the actions taken by article 76 of the Law of the Sea. The University of New Brunswick had a symposium on this a few years ago. You were there and we had a federal Liberal minister who came down and said that Canada has no intention of extending its jurisdiction over the soil and sub-soil of the ocean floor out to 350 miles. Russia is attempting to do this under article 76, and 20 other foreign nations are attempting to it as well. Canada has no intention of doing this. That was at a time four months before we ratified the Law of the Sea. We were the last holdouts, with the United States and Denmark. I do not know why we were a holdout — perhaps you can tell us why.
If we have from 60 to 100 draggers out there dragging the living daylights out of our continental shelf, why is Canada opposed to a ban on dragging the ocean floor in the unregulated area of the high seas if we are not part of that dragging fleet? They drag the nose and tail of the Grand Banks and the Flemish Cap, which is supposed to be part of the continental shelf — and Canada does not do that — our largest vessel is 65 feet by law.
In the law, do you see any reason for Canada to take that position?
Mr. Saunders: Concerning the tender, I cannot believe that there would be 100 factory freezer vessels on the Grand Banks because there would not be enough for them to catch.
Senator Baker: That is what I thought. That is a tender problem.
Mr. Saunders: I think you may be looking at an overbuilt tender process. I tend to trust the basic vessel numbers because they do have pretty good overall monitoring of what is out there in terms of total numbers and there are not that many.
Senator Baker: So it is 40 or 50 trawlers.
Mr. Saunders: Yes, those are quotes I have heard.
The Chairman: Could you qualify what you mean by "tender?''
Senator Baker: There was a tender call for a satellite monitoring system. The call was put out by NAFO in all the newspapers in Canada, the U.S. and around the world and the member states for a satellite monitoring system.
The Chairman: The system is for monitoring the sea.
Senator Baker: Yes, the call for tenders went out for a period of 10 years, which closed at the end of last month.
Mr. Saunders: I simply have to go with the facts as NAFO and others have presented them, including the Canadian government. I do not think it is an indication of a secret plan to put that many vessels on the Grand Banks. The tonnage being offered in quotas would not sustain it.
With respect to article 76 and the jurisdiction of the outer continental shelf, the minister may have been misinterpreted at that time because it has been Canada's policy for quite some time that we will and do have jurisdiction. The peculiarity of article 76 of the convention is that it specifies how you determine the outer limits of your continental shelf jurisdiction. It does not mean that until you have gone through that process, which involves the UN commission to which you must make a submission, and we are coming up to the deadline on that, and made your submission, you still have continental shelf jurisdiction beyond 200 miles on the seabed and subsoil; you just do not know where it ends. This has caused problems, for example, when we arrested American vessels fishing crab on the continental shelf. The one living thing that we have jurisdiction over is sedentary species beyond 200 miles on the continental shelf on the seabed. We arrested those American vessels and if they were to ask how far out they have to go before they are not on the Canadian continental shelf, no one can tell them; effectively, once you are arrested, you know you are on the Canadian continental shelf. International law provides that you have jurisdiction over the continental shelf, even if you have not declared its exact limits as a matter of a priori entitlement under the convention. However, we have to determine our outer limits to lay out the dividing line between where our jurisdiction ends and that of the International Seabed Authority begins. Canada is now involved in that process and there is a research effort to gather the necessary data and prepare the submission to the commission on the limits of the continental shelf, which works out of the UN. As far as I understand, that process is going forward.
A number of countries have made submissions, including some excessive claims that have misinterpreted the criteria. There are complicated geological and distance criteria. On the East Coast, according to the data that I have seen, we can go to 350 miles and beyond for their jurisdiction where they have control.
It has been suggested that because we have jurisdiction over sedentary species and are entitled to manage them beyond 200 miles, if a dragger were to pick up a crab in the course of other fishing, we have acquired jurisdiction to arrest that vessel for illegally fishing our sedentary species.
Senator Baker: What is the determination?
Mr. Saunders: It is a notion of leveraging your jurisdiction over sedentary species up to jurisdiction over a particular technique that damages the habitat of the species. It would raise issues of abusive rights and going beyond the actual intent of that provision in the convention. The jurisdiction over sedentary species is not broad management jurisdiction but rather it is exploitation jurisdiction. It is phrased differently from the exclusive economic zone. The Americans tried this in the 1960s when they had continental shelf jurisdiction but no water column jurisdiction. They tried this for a while with lobster. They would arrest vessels caught with lobsters. They eventually abandoned it as a back-door approach to asserting maritime jurisdiction.
The final question is on the dragging effort. I presume you are referring to the current effort at a UN moratorium resolution on dragging. It is not meant to prevent dragging on the high seas, generally, but rather to prevent dragging on certain vulnerable areas that are identified, such as unexplored sea mounts where there may be vulnerable habitats and they are completely unregulated. I cannot speak for why Canada decided not to join that effort. I was surprised that the U.S. government supported it. The only explanation that I have heard offered in public is concern that if we agreed to that outside on the high seas, it might be taken as a way to force the issue with respect to draggers inside Canadian jurisdiction. That is the only explanation I have heard. Otherwise, as you say, it is not an economic issue for us because we do not have a dragger fleet on the high seas at all and we do not have any economic interest in the areas. I would also say that what is proposed is not a ban but rather a resolution of the UN, which will not have binding effect in that it is not a treaty.
The Chairman: To clarify that, we are talking about a freeze of what exists; is that right? That is what we heard from the environment groups because that is what they want. They want to freeze what exists and do not want to totally ban right away, although they might want that over time. For now, they want a freeze of what exists in regulated areas outside because they do not have jurisdiction inside.
Mr. Saunders: The environmental groups, depending which one you talk to, will have a different view of how far they would like to push it. The UN is proposing to keep it out of areas that it might move into and certain vulnerable areas. It has not proposed a total ban.
The Chairman: Has it proposed a freeze outside the 200-mile limit?
Mr. Saunders: I am not sure about that. I have paid attention to the proposal to ban it on the new seamounts, and other organizations have done this already. In fact, NAFO is looking at that proposal for seamounts within the NAFO area and the North East Atlantic Fisheries Commission banned the practice on seamounts within its jurisdiction. It is not a new idea. These seamounts are apparently quite interesting and unique habitats. If we were to allow dragging before anything much is known about them, we might destroy a habitat that we do not even understand.
It has been, perhaps, blown up a bit more.
Senator Baker: Sections of Georges Bank are off limits to dragging and certain areas on the West Coast of British Columbia as well.
In law, "soil'' and "subsoil'' are defined in environmental acts in the case of pollution. Go to your case law and you can find all of these cases about polluting the soil and subsoil clearly defined and outlined. We have the United Nations convention article 76 that speaks to jurisdiction over the soil and subsoil.
Draggers do all foreign fishing regulated by NAFO. They drag the ocean floor either with gates or, in the case of shrimp, with two 120-foot rakes with a 60-ton weight in the middle to keep them down. They are dragging the ocean and disturbing the soil and the subsoil.
I understand that no one has ever attempted to challenge fishing in this manner. You gave the example of the dispute we had with the U.S. in those waters. Would this not be an area of litigation for Canada to pursue in order to stop dragging on Canada's continental shelf? Would you not agree that it would be interesting?
We have jurisdiction but it is always better to have it written in the law that we have jurisdiction, do you not agree? We could apply for jurisdiction over the soil and subsoil through the normal mechanism of the UN Commission on the Limits of the Continental Shelf. We would have it and all the dragging would have to be approved on Canada's continental shelf by the coastal state, which is Canada. Do you not think that is a far better way to approach this rather than manage the unmanageable under NAFO?
Mr. Saunders: Unfortunately, no. Would that it were so. I have tried the argument on myself and did not convince myself. I will explain why.
Senator Baker: You did try on the argument?
Mr. Saunders: Yes. In casting around in 2003, one thing I suggested was that perhaps we could leverage our jurisdiction over sedentary species into broader jurisdiction over these activities. Maybe we could, but here are the problems, as a broad approach. First, Canada will be making an application to the commission on the limit. I understand that the submission is being prepared. That commission does not grant jurisdiction; we have jurisdiction. That commission makes recommendations on the accepted outer limits. It is an important distinction, because we do have the jurisdiction.
We do not have jurisdiction that is that broad because of the phrasing of the convention. The convention does not actually say that we have jurisdiction over the seabed and subsoil, in simple terms. It says that we have sovereign rights — which is not sovereignty but a lesser form of jurisdiction — over the natural resources of the seabed and the subsoil.
Senator Baker: It is not article 76 that says soil and subsoil.
Mr. Saunders: That is describing where it is, but the convention defines the jurisdiction as sovereign rights over the natural resources of the seabed and the subsoil for purposes of exploring, exploiting and all the rest of it. "Natural resources'' are defined in the convention as the non-living resources of the continental shelf — the continental shelf being the seabed and the subsoil. The only exceptions to that, of course, are the sedentary species.
As to jurisdiction over natural resources, if we put the sedentary species possibility away for the moment, all the other natural resources remain— oil and gas, placer minerals and all the other things we might exploit as non-living resources from the shelf. The only way we could arrest a dragger for dragging those up is if they were collecting gold or oil and gas in their dragger nets and selling it elsewhere. That is the jurisdiction we have. We do not have territorial jurisdiction over the area; we have jurisdiction for certain purposes, over the resources in the sea. That was negotiated. That dates back to 1958 and, before that, to the Truman proclamations of the 1940s. That was the evolution of continental shelf jurisdiction.
The window is that sedentary species. The Americans tried this on as an approach to getting fisheries jurisdiction back when we did not have fisheries jurisdiction outside three miles. I remember talking to a U.S. Foreign Service officer who had been in the service at that time who could remember getting calls from fisheries enforcement officers saying, "They have two or three lobsters on board. Can I arrest them?'' The fishermen would accidentally scoop the lobsters up and be guilty of infringing sedentary species jurisdiction. They were interfering with a fin fish fishery by picking up a sedentary species.
There is an argument there. There is wording that was carefully negotiated in the Law of the Sea convention that does not give the same jurisdiction over sedentary species outside 200 miles that there is over fisheries inside 200 miles. The jurisdiction inside 200 miles is a very broad management, conservation and protection jurisdiction. Outside 200 miles it refers only to exploitation and exploration. I believe that wording was deliberately negotiated. I would like to be able to take that argument further, and I tried to do so at one time, but I do not think it will work.
The other problem is that it cannot be applied as a general regulatory method to stop draggers, unless there are other measures agreed at international law, because you only get that jurisdiction once they interfere with the sedentary species. If they are not interfering with the sedentary species, there is no hook to hang it on.
Senator Baker: The logic of the Canadian government not agreeing to a ban on dragging unregulated areas of the high sea is as you suggested a moment ago, that is, if we did it outside, then we may have to do it inside. The last time I checked we had absolute jurisdiction inside 200 miles.
You have expertise in certain countries in Africa.
Mr. Saunders: Yes.
Senator Baker: A great many of them have signed on to this ban, by the way. You have specific expertise in these areas. France, the U.K., Germany and the Netherlands have signed on. The EU has huge quotas on our continental shelf for dragging, and they drag for groundfish. We do not drag for groundfish. We do not have one dragger for groundfish. We have small, 65-foot vessels for shrimp in defined areas. They drag for turbot, for goodness sake. That is outrageous in this day and age.
The logic of the minister is that if they were to do it in the high seas, Canada may have to do it inside 200 miles. Since the EU is signing on against dragging on the high seas, does that mean they may now have to stop dragging on our continental shelf? Would that not be the logical conclusion in law if the minister's argument has any basis in law?
Mr. Saunders: I will be careful, because I can comment on the law but not so much on politics.
As the chairman said, even the proposed ban is not a ban on dragging. It is a proposal to properly regulate, to impose moratoria in new areas and various things, but it is not actually proposing a ban, so the connection is not there to a complete a ban on dragging.
I can say from a legal perspective that the fact that you agree that it is a good idea to regulate, control, or impose a moratorium on a fishing technique in new and unexplored areas of the high seas has no legal connection to what you do in a regulated, managed fishery that may allow that same technique. There is no legality that says that because you agreed to that you must now do this. The political calculation that may be involved in it is a different one upon which I cannot comment.
Senator Baker: Mr. Chairman, all final appeals in matters of the fishery should be to the dean of law at Dalhousie University.
[Translation]
Senator Gill: Is dredging good for the flora and fauna on the seabed? No one has rights per se to the seabed, unlike the resource. However, if the flora is destroyed, the fish will starve to death. I would like to hear your views on the subject.
[English]
Mr. Saunders: I agree that entirely from a management perspective that to destroy a habitat by any method of fishing has an implication for the fish in that location. The difficulty is that our jurisdiction over the exclusive economic zone and the continental shelf is a jurisdiction carved out of high-seas jurisdiction. The presumption is that, unless international law gives you jurisdiction over something, the default position is that it is high-seas freedoms.
To argue that because we have the jurisdiction over sedentary species, we therefore acquire the jurisdiction to regulate all activities that affect their habitat because they are ours to manage and control, is problematic because the wording negotiated in the convention is explicitly different from the wording that was used in the exclusive economic zone jurisdiction. It is an old legal principle that if you specifically use some words in one place in a document and you do not use them elsewhere, there is meaning in that.
The jurisdiction that is assigned to the coastal state over sedentary species in the outer continental shelf beyond 200 miles does not refer to the broad kind of management control and protection that you see in the wording of the exclusive economic zone. It refers to: You have the right to explore and exploit them.
In its narrow wording, it would mean that no one else is allowed to fish for them and take them but you. It does not mean that you can take other measures that, by inference, protect them, even though that is the logical, sensible thing to do. This has not been tested, and it could yet be tested. Much as I like the argument, it is a difficult one to make.
The other problem is that giving jurisdiction over those species was a concession. It dates back to 1958 and the Geneva Conventions. I think it was a grudging concession that is limited to the terms in which it was granted. To extend it too far and to try use it to leverage a broader jurisdiction on the water column above the continental shelf would be resisted by many countries, who would feel that is beyond the compromise. Would it be a good thing to do from a management perspective? I suspect it would, but I am not convinced that the law supports it.
[Translation]
Senator Gill: Even though this may not be the case at the present time, why do the members of NAFO seem reluctant to let the International Tribunal for the Law of the Sea adjudicate certain disputes?
You say that some progress has been made since NAFO's inception. However, has there been progress in terms of dispute settlements and sanctions? That may be a somewhat naïve question, but I am not an expert. Therefore, can you tell me why disputes are not being adjudicated by the International Tribunal for the Law of the Sea?
[English]
Mr. Saunders: I have not seen the wording of the dispute settlement agreement yet, so I will be cautious about what is agreed within NAFO. However, prior to Canada becoming a party to the UN Convention on the Law of the Sea and the UN Fish Stocks Agreement, and prior to the European Union — they are not a party as such, but they joined the convention — we did not have a mandatory dispute settlement process to which we could take our disagreements.
The principle in international law is that tribunals only have jurisdiction over sovereign states to the extent that the sovereign states agree to let them have jurisdiction. Of course, Canada has taken the benefit of that situation.
If you recall, when we entered into the turbot war, one of the first things we did was reserve our submission to the jurisdiction of the International Court of Justice to exclude that kind of dispute. We knew that what we were about to do was the kind of thing that might take us into the International Court of Justice. Subsequently, when Spain tried to take Canada to the court, Canada argued it on the basis of jurisdiction and said that the court only has jurisdiction to the extent that we consent, and we removed our consent for jurisdiction to that point. Canada has taken advantage of that in the past.
What changed with everyone joining the UN Convention on the Law of the Sea and the UN Fish Stocks Agreement is that the UN Fish Stocks Agreement adopts by reference, the dispute settlement process under the Law of the Sea. It can be applied in a mandatory way to settle disputes about the interpretation or application of regional fisheries management agreements. There was now a possibility for mandatory dispute settlement under the NAFO convention.
The bigger problem at that point was that it was pretty hard to violate the NAFO convention. If you could object to all the management procedures, say that you were taking your vessels back to check on enforcement problems, and not have to do anything, it would be very difficult to pin you down to a treaty violation.
One of the questions I had when I looked at the convention in 2003 was: What would a member state have to do before it could find something that it could say would be a good case in court? The best I could come up with was a continual pattern of refusal to apply penalties for fisheries violations, which would be difficult to argue.
What seems to be happening now is not necessarily an attempt to subvert the jurisdiction of the international tribunal, but from what I have heard, it is to add in a process that was not there in the convention. The objection procedure was something a state could do in its discretion, and the convention has taken some of that discretion away from states to object. That is, if states want to object now, they first have to justify it before a panel, and then, if they disagree with that, they have the option to take it to a dispute settlement procedure, which could include the International Tribunal for the Law of the Sea. However, it is up to them to push it forward. That is an improvement.
The dispute settlement process under the UN Convention on the Law of the Sea is quite complicated, but it involves more than one dispute settlement option. There is the International Tribunal for the Law of the Sea, there are technical fisheries management panels, there are arbitral panels called the Annex VII panels, of which there have been a couple of already, where states can avoid going to the full court and instead create an arbitral panel for a speedier resolution.
If a country has not chosen one or the other method, the default is the Annex VII tribunal. There was recently such a tribunal invoked by Barbados to force Trinidad and Tobago into arbitration on a maritime boundary dispute, so it can be done on a mandatory basis and it is there. However, if the parties have developed a dispute settlement process of their own, then those other tribunals will defer to the dispute settlement method that the parties to an agreement have designed for themselves.
Senator Adams: Thank you, Mr. Chairman. Thanks for coming, Mr. Saunders. You mentioned in your brief about the flag states for the foreigners. We have difficulty in Nunavut. We have turbot and shrimp and the foreigners are catching it. Maybe you could explain to me, and I can explain to you, how the system works.
Every year quotas come from the Minister of Fisheries at DFO. We had about 8,000 metric tonnes of turbot and 2,500 tonnes of shrimp. The foreigners are catching 80 per cent or 90 per cent. I wrote a letter to the minister. He said he cannot do anything about it because of the agreement with NAFO. Now we cannot do anything about it because of the flag system. In the land claims settlement, we included a licence for the turbot. The foreigners get our licence for Nunavut and catch the fish.
The land claim is settled. We are Canadian. We still use the same policy with Canada. Since the beginning of commercial fishing in the East, we were never really concerned about who is catching the fish. We have difficulty with the Nunavut land claims and trying to deal with the Government of Canada and DFO, especially with the flag states policy. People there want to get into business, but they do not have a licence because other parties can put a flag on their vessels and use our licences. Are you familiar with that situation?
Mr. Saunders: I am not familiar with that fishery. Is this within the 200-mile limit or outside?
Senator Adams: Yes, it is inside the 200-mile limit.
Mr. Saunders: If it is inside, it is not within NAFO jurisdiction.
Senator Baker: Turbot would be inside NAFO jurisdiction. The turbot is up to the high water mark. NAFO manages the turbot stock. This is fish sold in the water.
Senator Adams: Those foreigners belong to NAFO, do they not?
The Chairman: The line is not 200 miles because there is not 200 miles; it is less than 200 miles.
Mr. Saunders: It would be within our exclusive economic zone. Generally, if we have an agreement with other states to allow access, then we are bound to that agreement. If you do not have the agreement or it expires, then generally there is supposedly an agreement under the Convention on the Law of the Sea to give access to the part of fishery you are not fishing. It is an obligation that is so vague and so explicitly exempted from the mandatory dispute settlement under the convention that it would be difficult to force a coastal state to give access to fish for which they do not want to grant access. I can only assume that is pursuant to an actual agreement the federal government has entered into to allow access to that fishery in exchange for something else. However, I have not seen the fishery.
The Chairman: It could be simply a contract, I suppose. Nunavut has a contract with foreign ships. I know that was the case in Labrador. The shrimp company used to contract state-of-the-art vessels. There would be an agreement with them to fish a quota inside the 200-mile limit because they had the technology but it was within our economic zone. I think we have now changed that and we are using vessels from Nova Scotia. Initially on the Labrador coast, however, they were using European vessels to catch Canadian quota on their behalf. I suspect that may be the same sort of thing in this case.
Senator Baker: First, France, because of St. Pierre and Miquelon, has a percentage of all Canadian quotas up and down that shore. That is one way that the foreigners have quotas. The other way is, as Senator Adams was explaining, that the fish are actually sold in the water and/or assigned to a foreign fleet to catch. That is pretty prominent. Senator Adams's point is that his own people cannot get licences to fish while the quotas are being monopolized. France has rights, I presume, under that agreement.
The Chairman: On that topic, we want to bring the Nunavut people to Ottawa so that we can question them on the deal. There are unanswered questions. I do not know what the agreement is between Nunavut and the foreign vessels. Until such time as we find that out, it will be difficult for us to come up with answers to that problem. We will invite the Nunavut people here to Ottawa and spend as much time as we can to explore that whole issue.
Senator Adams: If I could explain the agreement with the land claims, it was with the Nunavut Wildlife Management Board, the DFO and the NTO, the Nunavut Trust Organization. Nothing was being done with the DFO about how the fishing policy would happen. Suddenly, BFC, the Baffin Fishery Coalition, came to Nunavut and set up its own organization. At the same time, the person had a broker in Newfoundland and partnered with the foreigners. For somebody to catch his quota, he must have a broker for how much the fish will cost. That is what is happening right now. The local people want to start but they cannot do anything because other people already have the quotas.
The Chairman: I have here the working text for March.
Mr. Saunders: I was just handed it before the meeting and from the same source, I believe.
The Chairman: This is the text I worked on and we will get the work in March. I want to make sure you have a copy. Once we have a look at the amended text, maybe you can come back and discuss this.
Mr. Saunders: I would be happy to do so.
Senator Watt: Welcome, Mr. Saunders. I would like to elaborate on what Senator Baker indicated by way of questioning you whether we have a role to play in terms of the soil and subsoil outside of the 200-mile limit, knowing that we have certain kinds of loose rights to start that out there, like clams and Atlantic scallops. Could the spawning ground of those species be used as an argument to connect Canadian management to outside the 200-mile limit? Has that ever been discussed? If you do not manage the spawning ground, what are you managing?
Mr. Saunders: Sedentary species are those in constant contact with the seabed or subsoil at the harvestable stage of their life cycle. At earlier stages, they may be floating in the water column. Could you say that interfering with them at that stage is taking a sedentary species? Possibly.
The result is that as a practical method of getting at the problem, it is probably not as good as other methods. Again, this is from somebody who did try this argument on at times. You must be able to prove that they are actively doing something to a sedentary species. It is not a general jurisdiction to manage the area; you do not have that continental shelf jurisdiction. You can only interfere with other uses of the water column to the extent it is necessary for sea bed exploitation. It is that lack of a broad management jurisdiction over the resource as opposed to an exploitation jurisdiction over the resource. You have the right to take it and to have the economic benefit of it, but we are not given broad plenary management powers over the area within which the resources live.
This is not to say that this could not be tried. I came up with a series of steps that you could argue that it was possible, but it was slightly unconvincing as an argument and it is a cumbersome tool. You are not really dealing with the management problems; you are trying to get at them through the back door. You would only get at them when somebody is in an area that sedentary species are in and that they are interfering with them. It is an attractive possibility in some ways but I do not think it is a solution to bigger problems.
Senator Watt: Does the Canadian government have a good handle on the spawning ground?
Mr. Saunders: It would be beyond my scientific knowledge to say that; I am sorry.
The Chairman: Before I go to Senator Hubley, I do not want the point to be lost that Mr. Applebaum addressed about the Achilles heel in this whole deal, mainly the power of the flag state. That is, the buck stops with the flag state. I wanted you to comment on that before we lose you, because that is an important point.
Mr. Saunders: Mr. Applebaum is correct on that point. That has been the case, and it is a global problem. Canada was an active mover from a couple of years ago, leading up to the Saint John's conference in May 2005. In the group of states, Canada has been trying to get action on flag state responsibility and imposing obligations such that, when you are a flag state of a vessel, you have responsibilities to manage those vessels to ensure that they abide by the rules in other parts of world. The UN Fish Stocks Agreement does make progress in that direction. I have been involved with a new regional fisheries management organization in the South Pacific. A big advantage they now have is to go after the flag states, because the flag states are responsible for the activities of their vessels when they are in that massive region.
How do we make sure that all of them are pursuing their management obligations or making sure that their vessels live up to their regulations in the areas in which they fish? We will never receive full compliance, especially when ships can flag all over the word, but recently the members of NAFO seem to have become more serious about managing their vessels. Maybe that is because there are fewer of them, maybe because the fish are gone, but they are demonstrating some willingness. At the end of the day, I would like to see whether this new agreement responds to Mr. Applebaum's comments. Is it mandatory that vessels have to go to port when inspected by any one of the parties, even if the flag state has agreed to take over the case? How detailed and mandatory are the guidelines for penalties? What will be done if a state does not live up to the guidelines for penalties?
At least this is within the NAFO area. This does not deal with flag state responsibilities in other parts of the world, where in high-seas fisheries you have flags from countries that do not know the vessel is out there, let alone managing it. At least with NAFO you have member states to the organization sitting there and you can get at each other to some extent. Will they follow up and make sure that offenders are penalized in their home state? We will not in the foreseeable future get fully away from some sort of flag state control over these vessels. There are too many important countries with fleets of vessels that are not willing to subject them to what they see as the whims of foreign jurisdictions. The United States is very cautious about allowing their vessels to end up under anybody else's control.
The two things, the inspection and ordering to port, and the guidelines on penalties and how well they are enforced, will be critical to whether we get some progress on the problem of flag state responsibility. Many other countries are wrestling with this issue as well.
The Chairman: Mr. Applebaum also suggested that it might be a good idea to have an outside panel monitor this whole process for the minister. He had the May panel, which was set up under the previous minister and reported to the previous one, I guess. The question is would it be a good idea to revitalize or perhaps appoint a new panel to monitor what is going on? You might even be a part of it.
Mr. Saunders: I do not think so. There could be a benefit to having another look, but not a continuing monitoring role. In my view, the people who are doing this at the senior level in DFO have done a better job in some ways than they have been given credit for over the years in trying to push NAFO along. I point back to the meeting in September 2005. It took a lot of work to get NAFO to the point of agreeing to the process that occurred after September 2005. There can be monitoring. Is it always good to have an independent set of eyes come and say, "Are we getting something done''? I would say so. Personally, I would not see it as a high priority for a continuing function, but periodic reviews by people who are not part of the day-to-day problem are sometimes a good idea.
Senator Hubley: With respect to sanctions, the wording of the new guidelines was that punishment would be commensurate with the crime. Does that pose real difficulties? Will that be taken by flag states and interpreted in their own fashion, or do you have guidelines that they will have to follow?
Mr. Saunders: That is what I was getting at; that is the question. I do not know because I have not seen the actual words. These things are very carefully negotiated. Generally, you do have a problem because you cannot commit your courts to doing something. You cannot guarantee we will send it before a local court and get the guilty verdict next week. There is a process to which you must subject people, with penalties at a proper level. It is not a crime. I am sure that description was being used in the colloquial sense. It is a regulatory offence. The thing that works is to make them pay. Make it cost them to infringe these regulations. It is prohibited under the UN Convention of the Law of the Sea to imprison people for pure fisheries offences of foreign vessels. We do not have that right. That was a protection that many states, including Canada, sought for their own crews. Often, it is not the crew at stake anyway, but an owner.
Make it cost them money. Make it difficult; make it harder for them to operate. You can also make it difficult for them to operate in different regions. We now have NAFO getting into cooperative arrangements with the North East Atlantic Fisheries Commission. That is a good thing to do. If you have a vessel that is a problem in one area, they should know about it in the other area. These problem vessels have a tendency to move around the world.
Part of it is the penalties; part of it is monitoring them; part of it is naming them, which some of the vessels are now doing. They put on the website the vessels they have caught that have been involved in unregulated or unreported fishing.
Thinking back 15 years, there have been huge improvements in the monitoring of these vessels. I worked with fisheries organizations in the South Pacific. The Canadian government funded many projects in the South Pacific in the 1980s and 1990s. One of the things we were supporting then was the ability to track vessels over time, because they change their names. They get caught; they reflag, change the name, and come back under a different name. The organization, with Canadian support, developed a database that on all sorts of other indicators would track these vessels. They may change the name of the ship but other data is available to track the ship. When they were blacklisted as a vessel, they were blacklisted for good, no matter whether they changed the name or not.
Blacklisting vessels, refusing them port access, which we have already done and can get more NAFO members to do, are ways to impose penalties other than fines or a court case. The interregional cooperation is something upon which they have started to improve. That is a positive step as well.
If they engage in a serious offence here, it is even worse if we make sure that they cannot fish somewhere else, not just in our area.
Senator Baker: Maybe Senator Cowan could ask him whether, in his opinion, it is a good thing for the Minister of Fisheries and Oceans to have, as an assistant deputy minister in charge of the management of the fisheries in Canada, the President of NAFO, who also has to answer on behalf of NAFO for fisheries management questions. Perhaps the professor would not want to answer that question, but perhaps he may.
Mr. Saunders: That is a question that is beyond the legal, if I could put it that way.
Senator Baker: Is that beyond your jurisdiction?
Mr. Saunders: Exactly.
Senator Cowan: That is why Senator Baker wanted me to ask the question.
I would like to talk about custodial management. I am not entirely sure what that means. Could you tell me whether there is a common usage of that term?
Mr. Saunders: No, there is not.
Senator Cowan: I think I understand why it would not work, or at least why you would not get the necessary buy-in from other states.
As a lawyer, I know I should not ask a question unless I know the answer. You mentioned that it became an issue in the last election and somebody or other had promised that we would have custodial management of the Grand Banks within five years. I do not know which party or parties made that promise.
Mr. Saunders: It was the current Prime Minister. I believe that speech was made at Petty Harbour. I was checking the website to see if I was right on this.
Senator Cowan: Although I did not know the answer to that question, I am sure Senator Baker did. Perhaps you could tell us your views on custodial management. Help me to understand what different people mean by that phrase.
Mr. Saunders: You have hit on the first problem, which is that it is not a defined legal term. It does not exist in law. The term that was developed to get around the idea of what would look like a unilateral extension of jurisdiction beyond 200 miles, which is clearly prohibited under the United Nations Convention on the Law of the Sea.
Even if you are not a party to the Convention of the Law of the Sea, it is clearly prohibited at customary international law as well. The 200-mile limit for fisheries management and other economic purposes is well accepted in customary international law. We are now parties to a convention that limit our jurisdiction to that extent.
When I first went looking to find out about custodial management, I found different definitions depending on who was using the term. As it is undefined, the House of Commons committee was at one point talking about jurisdiction over particular fisheries or species and not necessarily an area-based jurisdiction. I forget the exact title of the Newfoundland legislature report that came out that suggested it at the time.
Senator Cowan: The all-party committee?
Mr. Saunders: Yes. That committee suggested something that looked more like an assertion over an area. It tried to define it so that it did not look like a jurisdictional grab. It constantly said we are not taking jurisdiction over the fish or trying to take the fish, we just want to improve the management of the fish and make sure there is a fair allocation. We are not taking the right to take the fish. Jurisdiction to manage and allocate those quotas is clearly jurisdictional. It was one of those things you could dress up under any name you wanted, but you were not fooling anyone but yourself.
There is a famous story of Spike Milligan and his colleagues looking at a gravestone that read: "Not dead, just sleeping.'' You are the only one who believes this.
There is a bit of that in custodial management. It would have been treated internationally as an assertion of jurisdiction. It undoubtedly would have required us to interfere with vessels and their high-seas rights.
It was partly undefined. Some people thought it was for an area, some for particular fisheries, some defined the jurisdiction quite broadly, others very narrowly. Some iteration, including the all-party committee, would have extended it to species that were not straddling stocks; they were discrete high-seas stocks clearly under high-seas jurisdiction. They were not even part of the NAFO picture in that sense.
It was a bit of a jumble and emerged partly from the experience we had in 1994-95 where, in a sense, we got away with it. We did do things beyond 200 miles that may have been in violation of international law at the time, as indicated by our unwillingness to have the case heard on its merits in international court.
What is important to remember is that the situation was very different by 2004-05 than it was in 1994-95. In 1994-95 there was a broad international consensus emerging that the UN Convention on the Law of the Sea had two important gaps in how it defined jurisdictional fisheries: Highly migratory species; tuna, swordfish and so on, a big issue in the South Pacific, Southwest Indian Ocean and elsewhere, and straddling stocks. Both sides, the high-seas fishing nations or distant-water fishing nations and the coastal state had bits of jurisdiction and there was no priority assigned in the way the convention dealt with those stocks. There was a feeling that this was a jurisdictional gap in the convention that had never been adequately resolved. That gave us a bit more credence for trying to deal with that situation.
Second, we had a situation where some states were blatantly acting to destroy these stocks in large scale, tuna as well. You could not have come up with a better example of a vessel that needed to be stopped than the Estai, once they found out what it had been doing in terms of false bulkheads, misreporting, et cetera. We had that in our favour. We had the momentum out of the UN Conference on Environment and Development, and in international terms that led quickly to the negotiation of the UN Fish Stocks Agreement, which happened very quickly.
What was different by 2005? A few things: First, we had the UN Fish Stocks Agreement which only came into force in the early 2000s. You could not say there is no method for dealing with this problem other than the one we are taking, which is unilateralism. The answer would be there is the agreement you signed on to less than 10 years ago which has just come into force and is just starting to get its legs in terms of the regional fisheries management organizations around the world. Our big justification, the jurisdictional gap, was gone.
Second, and absolutely critical, we are now party to the Convention on the Law of the Sea, which means we are subject to the mandatory dispute-settlement provisions of that convention. If we attempted to do what was proposed in the custodial management regime, or even what we did with the Estai, we would be forced into dispute settlement, and I think we would lose.
In 1994-95, we were able to avoid that by withdrawing our submission to the jurisdiction of the international court for the purpose of that type of dispute; that is no longer an option. Things had changed by the 2003-04 period, and I do not think we could have done that. There was still this feeling that we got this progress in 1994-05 by acting aggressively; why not do that again?
In 1994-95, if you look at the sequence of events in which Canada was involved, and I think it was a sophisticated strategy: We were not just acting aggressively. We acted unilaterally in limited circumstances, yes, but we also pursued bilateral options with the EU and others, we pursued a regional option that we were acting on at the same time to try to get changes to the NAFO, some of which we achieved. We were acting multilaterally to get a UN Fish Stocks Agreement. We actually had a multiple-level strategy to deal with the problem. It was not just going out and arresting offending vessels that was the strategy of Canada at the time.
What I would argue for now is that you adjust to the different legal situation we have at present, you acknowledge that the threat of unilateral action is not as good a threat as it was then because states know we would be subject to dispute settlement, that we now have put in place, by agreement, something we argued for and signed to; a regime that we have yet to make work.
Our first priority in these years will be to make the UN Fish Stocks Agreement regime, and the regional fisheries organizations that are part of it, work. We no longer have the same justifications.
Senator Cowan: It is perhaps one of those terms like "fiscal imbalance'' that means different things to different people.
Mr. Saunders: The short answer was the first one. There is no defined legal term that one can point to because it does not exist in international law.
The Chairman: One of the questions that we will have to answer is: NAFO or son of NAFO? As I listen to you and as I read, it seems that you are leading towards NAFO, a new and revitalized NAFO, if possible. The May report seemed to say that NAFO was broken and could not be fixed and we need to try something new.
What we heard from the former officials of DFO was that they thought that NAFO could be fixed. We do not have all of the evidence in yet, and we still have a lot of questions. There was evidence that NAFO was on the path to being fixed. Is that your position?
Mr. Saunders: I am not sure that Art May and the other members of the panel would necessarily say the same thing later on. I did provide some of the background material for that panel and we had the discussion with them. They were reacting to the situation in NAFO as they understood it at the time.
When I said earlier that if I looked at this in 2004-05 I would not have predicted that you could get some of these changes in NAFO as quickly as we seem to be getting them over a two-year period. That might have changed their judgment.
There is no principle reason why it must be NAFO or son of NAFO. The question is: Can you change NAFO enough to make it the son of NAFO? Maybe this was only in New Brunswick, but in my hometown there was a problem of getting building permits for new houses on the waterfront. I remember more than one house that was half torn down and built that half, tore down the other half and built that, and that was a renovation. Maybe that is the kind of renovation we need for NAFO.
The Chairman: Thank you very much for coming today. It has been very useful. You have helped us a great deal. I hope that we can invite you back again later on in the spring and we can explore this some more.
Mr. Saunders: I would be happy to do that.
The Chairman: I thank the panel for coming. We have had a good series of discussions.
The committee adjourned.