Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 1 - Evidence - December 11, 2007
OTTAWA, Tuesday, December 11, 2007
The Standing Senate Committee on Fisheries and Oceans met this day at 6:19 p.m. to examine and report upon issues relating to the federal government's new and evolving policy framework for managing Canada's fisheries and oceans. Topic: NAFO Panel 1.
Senator Bill Rompkey (Chair) in the chair.
[English]
The Chair: Welcome, everyone. I am chair of the committee, and my province is Newfoundland and Labrador.
We have with us tonight around the table Senator Adams from Nunavut; Senator Cowan from Nova Scotia; Senator Robichaud from New Brunswick; Senator Watt from the soon-to-be-created, we hope, territory of Nunavik; Senator Cochrane from Newfoundland and Labrador; and Senator Hubley from Prince Edward Island.
This committee is continuing its study of the NAFO convention. We dealt with it some time ago, before the revisions were made, before the meeting in Lisbon, and we wanted to revisit the issue after Lisbon to see what has transpired.
We have two sets of witnesses with us this evening. The first panel is composed of Scott Parsons, Bob Applebaum and Earl Wiseman, who are former senior officials with DFO, who have long experience with this subject matter and who were witnesses before this committee earlier.
Later in the evening, we will be hearing from David Bevan, Assistant Deputy Minister of Fisheries and Aquaculture Management at the Department of Fisheries and Oceans, and Sylvie Lapointe, Head of International Relations with the department.
We welcome everyone to the meeting.
I would like to tell those who might be catching this committee meeting on TV when it is broadcast that if you need any copies of documents that we are using tonight, you can contact the clerk of the committee, whose name appears at the bottom of the TV screen. She would be glad to send documents to you as a follow-up to this meeting.
I would like to begin the meeting now. We have three presentations. The first is from Mr. Parsons, then from Mr. Applebaum and Mr. Wiseman.
Before I call on Mr. Parsons to begin his presentation, there is one other item. Mr. Parsons has made some revisions to his statement, and we have not been able to get a French translation of that statement. However, we do have a French translation of his earlier statement.
The question before us is this: Would committee members like to have the French translation of his earlier statement circulated, or would you rather listen to the interpretation as it is given to you verbatim?
How do committee members wish to proceed. We can give you the English copy of the new statement. Is that satisfactory?
Senator Robichaud: Why are you looking at me?
The Chair: I look at you because I always look to you for wisdom, advice and counsel.
We will distribute the latest version of Mr. Parson's statement in English only. We will have the French as soon as we can get it.
Mr. Parsons is originally from Lumsden, in Bonavista Bay. He is no stranger to the sea and to fish. All three of our witnesses have provided yeoman's service over the years.
Mr. Parsons, please proceed.
Scott Parsons, as an individual: Good evening, senators. My colleagues and I would like to thank you for giving us this opportunity to outline our concerns about the proposed changes to the convention that governs the Northwest Atlantic Fisheries Organization, better known as NAFO.
As Senator Rompkey said, prior to the conclusion of meeting in Lisbon in September of this year concerns were expressed about the proposed changes. Our remarks tonight will address the proposed amendments that were adopted in Lisbon and have now been sent to member governments for potential ratification.
Over the last several months, the three of us sitting here tonight, plus another colleague, Mr. William Rowat — a former deputy minister of the Department of Fisheries and Oceans, who unfortunately could not be with us tonight — have drawn public attention to developments that threaten to undermine Canadian sovereignty and Canadian efforts for the conservation of fish stocks off the East Coast of Canada. These developments arise from international negotiations between Canada and other countries to revise the international convention which 30 years ago established NAFO.
NAFO was set up in the post-extension era to try to control foreign fisheries outside the newly established Canadian 200-mile zone. Unfortunately, foreign fisheries have, over the ensuing years, depleted most of the transboundary and straddling stocks, although there are some fisheries underway at the moment for some of these stocks.
The topic of reforming NAFO has been under discussion for some time. During the last federal election in 2006, the Conservative Party, particularly the current Minister of Fisheries and Oceans, Mr. Loyola Hearn, promised a form of extended jurisdiction to address the problem of foreign overfishing beyond the Canadian zone. Specifically, the present government — the Conservative Party — promised in its platform ``to extend the 200-mile limit to the edge of the Continental Shelf, the nose and tail of the Grand Banks, and the Flemish Cap in the North Atlantic and be prepared to exercise Canadian custodial management over this area.''
In retrospect, it appears that in making this promise they were not fully aware of the difficulties under international law of doing what they promised, because it was a bold promise. In any event, once in office, the government changed direction and decided instead to buy into an initiative called NAFO reform.
This started out and was understood to involve changes to NAFO to strengthen the organization to accomplish what it was originally intended to do. However, the subsequent negotiations have led to a proposed amended convention that, in our view, far from strengthening NAFO, will instead substantially weaken an already weak and ineffective organization. In the process, this has jeopardized Canadian interests to secure a deal that underlies a claim that NAFO has been ``fixed.'' It is our contention that NAFO is far from being fixed.
Meanwhile, the European Union seized on these negotiations as an opportunity to weaken the convention in order to further their own interests. Nonetheless, NAFO, at the Lisbon meeting last September, adopted a proposed new convention that is now subject to the approval and ratification of the NAFO member governments. This new convention, if allowed by the Canadian government to come into force, will be a major setback for Canada in terms of protecting Canadian sovereignty and pursuing conservation in the Northwest Atlantic.
The four of us, as retired public service executives, did our best to inform the Senate earlier. We made attempts to inform the Honourable Minister of Fisheries and Oceans, Mr. Hearn, and others, in particular the public at large, about the main problems for Canada that were evident in the early drafts of the proposed convention.
In our view, to strengthen NAFO, two major things needed to be done. The first would have been to incorporate an effective enforcement mechanism, one that did not depend solely on flag state action, to provide for removal from the fishery of vessels that break the NAFO conservation rules. The 1995 United Nations Fish Stocks Agreement provides a model for such a mechanism, even though it, too, is imperfect. The second would have been the removal of the objection procedure that allows, at the moment, any NAFO member to ignore NAFO decisions.
An alternative was the inclusion of a judicial-type procedure through which unreasonable objections could be overruled early in the fishing season. This could also provide for timely, binding resolution of other disputes including disputes that arise once an objection has been lodged.
Unfortunately, the amended draft NAFO convention does neither. It does not provide for effective enforcement, and it provides only for a non-binding review system, one that cannot culminate in overruling an objection unless the objecting party allows that to happen. It has also left enforcement to a series of measures outside the convention that can be undermined at will by any flag state at any time or amended at the will of the parties.
On the other hand, the negotiations have resulted in proposed amendments that would substantially weaken NAFO. These elements would undermine Canadian interests and Canada's ability to obtain, in NAFO, decisions to promote conservation and effective enforcement of such decisions.
It is sad to say that these amendments are a far cry from the commitment to extend the 200-mile limit and exercise custodial management over the Nose and Tail of the Grand Banks and the Flemish Cap.
One such amendment is the proposal to change the voting rules in NAFO from the current simple majority system to a two-thirds system. This will make it more difficult for Canada to obtain restrictive conservation decisions.
The minister, despite entreaties to the contrary, steadfastly refused to protect the simple majority system with the result that the two-thirds system is incorporated in the proposed new convention. The minister referred to this as ``improved decision-making'' and stated that this will provide some protection for Canada's current allocation percentages. Perhaps it will in the short term, but it appears that, in the process, the cost to conservation has been regarded as an acceptable casualty in order to improve the chances of maintaining our allocation percentages. The allocation percentages are not worth all that much in the long run if, in fact, the stocks are not conserved and maintained.
Canada could have demanded both: It could have demanded a two-thirds system to protect the existing quota shares and a simple majority system to promote conservation. Unfortunately, this did not occur.
Another major problem in the revised convention is a provision that would allow NAFO, if requested by Canada, to intrude into Canadian sovereignty by establishing catch and quota regulations, including foreign quotas and enforcement rules inside Canadian waters up to and including the Gulf of St. Lawrence.
Under the existing NAFO convention, NAFO cannot meddle into management in Canadian waters under any circumstances. When concern about this type of provision in an earlier draft was made public, Minister Hearn seemed to be quite clear in stating he would not accept the provision of this kind. He said:
Canada will only accept a NAFO Convention that clearly defines that the regulatory authority of NAFO is only on the high seas.
In press releases after the Lisbon meeting, Minister Hearn stated he had not conceded on this point, but the fact is, he did.
The provision in the earlier draft that allowed NAFO controls to apply inside Canadian waters ``by consensus'' was changed so that the language now requires ``a Canadian request.'' The difference is minor and does not change the basic effect, which is to open the door to international management inside 200 miles. There is no provision allowing for Canadian custodial management outside 200 miles. As I mentioned earlier, during the last election, this was Minister Hearn's stated, overriding objective. Instead, for no reason we can fathom, Minister Hearn has opened the door to incursions upon Canadian sovereignty.
Astoundingly, the new amendment allows a much greater intrusion on Canadian sovereignty than did the earlier draft. My colleague will elaborate on this point. This new idea of providing for NAFO management of any kind inside 200 miles was clearly never intended to strengthen the NAFO convention. How could it? It arose during the course of the negotiations as something that was put on the table by other parties, and Canada rolled over and accepted it.
Since the establishment of the 200-mile zone, Canada has always had full control to protect the fish stocks within the 200 miles with no need for international intervention. From a Canadian point of view, there is no conceivable need, nor will there ever be, for a Canadian request to NAFO to apply its management and enforcement rules inside the Canadian 200 miles. If that is the case, why is that provision in the proposed new convention?
While the proposed new convention does contain a few improvements to the old one, most of which are of an administrative nature, there are other flaws — for example, the failure to incorporate tougher enforcement provisions and the inclusion of a very weak and ineffective dispute settlement procedure — and the objection procedure remains.
The new NAFO convention includes no provisions for a new substantive enforcement system to replace the current system that relies solely on flag state enforcement to stop vessels from violating conservation regulations. A new NAFO convention should, as a minimum, include the enforcement provisions of the 1995 United Nations Fish Stocks Agreement, UNSFA. Canada fought for those provisions under different governments of different political stripes, led initially by John Crosbie and brought to fruition by Brian Tobin. Now, these measures have not been acted upon or simply not included in the new NAFO convention.
Also, the arbitration provisions now in the proposed amended convention cannot produce binding rulings to legally prohibit overfishing by NAFO members. If we are to make any progress, provisions such as this clearly should be in a new convention.
In summary, the threats to Canadian sovereignty and to Canadian efforts to provide for conservation are, in our view, the greatest threats in the proposed new convention.
Minister Hearn has stated that as a result of his accomplishments, ``Canada is now the custodian of the fisheries resource.'' When we saw that statement, we scratched our heads and were totally perplexed. What was the basis for such a statement? We examined the proposed convention with a fine-toothed comb. We could find no provision in the proposed new convention to provide any basis for this statement or for any form of custodial management by Canada; yet, he has asserted that that would be the case.
In fact, if Canada wishes to consider itself the custodian of the resource, the proposed new convention is a step in the exact opposite direction. It will weaken Canada's ability to promote conservation and open the door to international management inside Canadian waters.
The amended convention flies in the face of the government's commitments during the 2006 election. Additionally, if ratified and adopted by the member countries, it will tie Canada's hands for decades. It has taken about 25 years to get us to this point of revising the existing convention. Assuming this new convention enters into force, it will not easily be changed over the ensuing years.
In some respects, Canada will be better off with the existing ineffective organization than it will be if the amended convention is ratified and enters into force.
Senators, it is not quite too late to fix this, but the clock is ticking rapidly. It is still open to the government to refuse to ratify the proposed amended convention. The government has a choice, and it can refuse to do so and stop the process of bringing it into force. In fact, in the 2006 Speech from the Throne, the Right Honourable Stephen Harper, Prime Minister, promised to bring before Parliament for consideration any significant new treaties with any significant implications. We think that is what should occur in this case.
Honourable senators, we call on you tonight to urge the government to stop this process before it becomes too late. There could be tragic consequences.
Bob Applebaum, as an individual: Mr. Chairman, honourable senators, the original NAFO convention, still in force now, was conceived by Canada, and by Canada alone, following the establishment in international law of the 200-mile exclusive economic zone. I emphasize the term ``exclusive,'' meaning that the coastal state was to be the sole management authority for its 200-mile zone.
Given the need for international cooperation in management outside 200 miles, to protect the straddling stocks from foreign overfishing on the high seas, Canada initiated the negotiations that resulted in the original NAFO convention we have today. Canada produced the first draft, which reflected Canada's interests and objectives, and managed the negotiating process throughout so that the final product was very close to what Canada proposed at the outset.
One of the major pillars of the NAFO convention, and perhaps the most important one, unquestioned by any country at that time or since, until about two years ago, was that NAFO management, reflecting the United Nations Convention on the Law of the Sea, or UNCLOS, would apply outside, and only outside, 200 miles. With the establishment of the 200-mile zone, international management in the waters inside 200 miles was intended to be foreclosed, once and for all. There was no need for NAFO management inside 200 miles. With its sovereign rights over the zone, Canada could, and can, on its own, do everything needed for fisheries management inside 200 miles. Canada could and can do everything inside 200 miles that NAFO can do outside 200 miles and, in fact, Canada can do much more.
Implicit in this original NAFO structure, which provided no avenue for NAFO management inside 200 miles, was the importance of keeping NAFO negotiations restricted to the area outside 200 miles, with no possibility of trade-offs between the two areas. There would be no possibility of complicating these negotiations on management outside 200 miles with issues of what would have to apply inside 200 miles, since such complications would inevitably weaken the Canadian negotiating position and result in compromises that would weaken NAFO conservation decisions.
This brings us to the proposed new NAFO convention, which purports to implement the 1995 United Nations Fish Stocks Agreement, UNSFA. Article VI, paragraph 10, of the proposed new NAFO convention, which is a radical new provision, reflects nothing in UNSFA and is inconsistent with the UNSFA and UNCLOS approach to fisheries management. That provision would allow NAFO to apply its management authority, and even its enforcement rules, inside Canadian waters as far west as the Gulf of St. Lawrence, if it can extract from a Canadian delegation at a NAFO meeting a request for such application.
This raises a series of questions to which my colleague has referred. Why has this radical new provision been introduced? What is the motive behind its introduction? What use does the EU, which insisted on its introduction, intend to make of it? Finally, why would Canada ever request the application of NAFO management rules, and even enforcement rules, inside 200 miles when Canada already has the right to do everything inside 200 miles that NAFO, under this provision, could do, and more?
Underlying these questions is a single conclusion. The EU, in demanding this provision, did not intend it to be just window dressing. If the proposed new convention comes into force, this provision will be used. Over the years, Canada will make concessions through this provision. Some concessions will involve accepting weak conservation measures outside 200 miles because stronger measures would be accepted only if Canada requested application inside 200 miles.
Some concessions will involve actually accepting the application of NAFO rules inside 200 miles. The overall effect will be to weaken Canada's negotiating position in NAFO, undermine conservation outside 200 miles, and undermine, progressively, Canada's exclusive management and enforcement authority in Canadian waters.
I will finish by directing the attention of honourable senators to one of the green sheets in your compilation of papers, which shows the actual provision in the proposed new NAFO convention, Article VI, paragraph 10, as well as paragraphs 8 and 9. These paragraphs are what it is all about. On the other side of that page is the text to which Mr. Parsons referred concerning the commitment, prior to the NAFO meeting in Lisbon, that Canada will only accept a NAFO convention which clearly defines that the regulatory authority of NAFO is only on the high seas.
Earl Wiseman, as an individual: Honourable senators, my colleagues have dealt with the new NAFO convention and how it actually weakens the current regime. If NAFO is weakened through the adoption of the proposed new NAFO convention, getting the cooperation of the European Union will become even more difficult.
The government has also adopted an approach of greater trust in NAFO contracting parties that they will effectively implement the new convention to achieve its goals. A weakened convention and possible misplaced trust can lead to significant problems in the future.
To understand the effect of the new NAFO convention on the fishing grounds and the likelihood of its success in creating a sustainable fishery, one has to understand the context of international fisheries agreements involving a key NAFO partner, the European Union. The EU is not a state. It does not have the sovereignty or the authority Canada has to implement its NAFO obligations.
The European Union in NAFO is represented by the European Commission. This body of appointed officials carries out the decisions of the European Council of Ministers comprising all of the fisheries ministers of the members. Regardless of what the European Council approves, it is up to the EU member states to enforce these measures. While the commission monitors, under some constraints, member states are the masters in their jurisdiction and do not have to answer to NAFO.
The commission has very little authority to take decisive actions to ensure NAFO undertakings are met. It has been like this since the European Economic Community joined NAFO, and it has not changed.
Just last week, the European Court of Auditors published a report on EU fisheries management and control. The court's comments reflect our experience in relations with the European Union over more than 25 years and many similar internal EU findings, such as those reported in a European Parliament report in 1992 and the review of the Common Fisheries Policy in 2002. Sadly, despite all the positive speeches, little has really changed where it matters. Sure, there are significant changes on paper. The European Union fisheries management regulations reflect a much sounder, more modern approach in many areas. Unfortunately, the expected impact on their implementation has not been seen in practice.
The court of auditors found that unreliable catch data, inspections of limited effectiveness, and systems for following up infringements and imposing sanctions are often inappropriate and thereby jeopardize compliance with the rules. The court concludes that without proper functioning of data collection, control and enforcement, it is impossible to implement any effective policy based on catch limitations. These concerns not only pertain to the European Union waters, but also to the NAFO regulatory area.
Even if the NAFO control measures work impeccably and there are no infringements of NAFO rules, the European Court of Auditors makes it clear that the European Commission oversees a system that in itself generates significant overfishing. EU catch data collection is just not accurate enough to be used to truly control or manage fisheries.
For years, Canada has gathered catch statistics from the log records of EU vessels that have been inspected in the NAFO regulatory area and, based on these numbers, has found significant misreporting in EU official catch statistics. The report also makes it clear that inspections, enforcement and sanctions are still inadequate. Detecting an offence is difficult, and when a charge is laid, it can take years for a resulting slap on the wrist, if anything. This is inconsistent with the European Union's long-standing NAFO obligations.
As Ronald Reagan said to Mikhail Gorbachev, it is one thing to trust the other side but according to the old Russian adage, one has to trust but verify. The European Court of Auditors has again shown that the European Commission cannot verify. How can we trust their system?
Until there is a real expression of political will and action in Europe to tackle these problems, we will continue to have difficulties in the Northwest Atlantic. Now that NAFO has adopted its new convention — the European Union system of consensus — as its modus operandi, we will likely continue to see the European Union dragging its feet towards the acceptance of meaningful conservation measures. With even minimal measures adopted, as we have seen in the past, the EU will have difficulty delivering on its obligations. The owners of the EU fishing fleet in the NAFO regulatory area are survivors of the EU system. Over the generations they have learned to how to evade or limit state controls and enforcement.
We need to strengthen NAFO, not weaken it. A new NAFO convention has to provide meaningful, enforceable sanctions to those parties that do not fulfill their legal obligations. The arbitration panel provision in the new convention will accomplish little. The EU, for many years, has evaded existing control and enforcement rules and overfished its quotas, over 40 per cent in some recent years, all without lodging objections. Unfortunately, the new NAFO arbitration panel, or dispute settlement provisions, are limited to objections of NAFO decisions and cannot deal with disputes concerning any ongoing fisheries problems at sea.
There is no reason to believe that there will be any significant changes soon. We had been led to believe time and again since the mid-1980s, and it continues today, that the European Commission understands the problems and will resolve them in the next few years. With the latest court of auditor's report we see that very little progress in the past 20 years has affected EU fishing in the NAFO regulatory area. Regardless of the back-patting one sees regarding the negotiation of a new NAFO convention, we must keep our eye on the ball.
In October 2006, I was optimistic that the government would deal with the major issues required in the finalization of the negotiation of a new convention. Today, I have to ask: Can the EU deliver on its obligations? Is there a new strengthened management regime in place in the NAFO regulatory area that will truly deliver? Not likely. What the government has done is not to insist on the truly essential changes required but to weaken the existing system even more and so reduce our hopes for full implementation of the United Nations Fish Stocks Agreement and a truly well- managed, sustainable fishery in the NAFO regulatory area.
Senator Cochrane: Mr. Parsons, in the latter part of your presentation, you said that it is still not too late to fix this, but the clock is ticking rapidly. You indicated that we must stop the process before it comes into force. What is the time frame?
Mr. Parsons: The time frame could be variable. My colleague, Mr. Applebaum, who is a lawyer, can explain the legal process of ratification and the number of countries that have to ratify the proposed amendments for the new convention to fully come into effect. The essential point of our intervention is to urge the Canadian government to rethink this whole process. In Lisbon, the representatives of the government sitting at the table on the Northwest Atlantic Fisheries Organization agreed on a proposed series of amendments. Those amendments will be circulated to the member states formally, and the member states must formally take a decision whether they will ratify the package as submitted.
In the case of Canada, in the past there have been instances where ratification took place through an Order-in- Council — a very simple process in the backroom. It has happened overnight when we were not even aware of it. We are urging that there be a full and proper parliamentary debate on this issue before the government takes the decision on whether to ratify the proposed amendments.
Mr. Applebaum could comment further on the time frame.
Mr. Applebaum: The proposed new convention being developed as an amendment to the current NAFO convention and the amending formula of the current NAFO convention apply. Under those provisions, when three quarters of NAFO members have ratified the amendment to the NAFO convention, it will come into force unless one of the NAFO members lodges an objection. If that objection is lodged, it kills the whole thing and the new convention cannot come into force no matter how many approvals you get.
Therefore, to stop this process, the Canadian government would not only have to refrain from putting in a Canadian ratification but also would have to lodge an objection to stop the entire process and bring it to a halt.
The Chair: Could you give us a time frame or the time limit that we are working against?
Mr. Applebaum: I cannot give you a time frame because it depends on so many variables. In theory, the Canadian government could decide to wait for a long time before doing anything and then find itself facing a ratified new NAFO convention that has come into force through the three-quarters rule because Canada has done nothing to stop it. That is the best I can say about it.
Senator Cochrane: At the NAFO meetings in Lisbon in September, a number of reforms were adopted. With these new reforms in place, are Canada's fishing interests being protected? If not, why not?
Mr. Parsons: It is our view that with the proposed changes at Lisbon, Canada's fishing interests are clearly not protected because the proposed amendments to the NAFO convention are deficient in several respects.
First, there is the lack of a tough and effective enforcement system incorporated in the convention. That has not been done. Second, there is no binding dispute settlement procedure. That has not been done.
No doubt Mr. Bevan, when he appears later this evening will say — because I have heard it said on other occasions — that we now have a dispute settlement procedure where there was none previously. That is all very well and good, but if you read the text of the convention — and Mr. Applebaum has studied this with great care — in fact, what we have is a proposal for a non-binding dispute settlement procedure.
Basically, what has changed is that there is some provision in the text for the establishment of ad hoc panels under certain circumstances. That is like blowing in the wind. These ad hoc panels have no mandatory or binding effect. Therefore, we are still left, essentially, where we were before there were proposals to amend the convention, which is that we have no way to have binding settlements.
I will not elaborate on this further, but that is on the side of what is missing in the convention. The threat to Canadian interests, in our view, also lies in the new things that have been incorporated into the convention, which are adverse to Canadian fisheries interests.
First is the aspect with respect to sovereignty, which, again, departmental officials will contest, saying that it will only happen if there is a Canadian request. My question is: If there is never going to be a Canadian request, why in the heck would you insert that into a convention?
Having participated as head of the Canadian delegation in, for example, the North Atlantic Salmon Conservation Organisation, the International Commission for the Conservation of Atlantic Tunas — or ICCAT — in NAFO and as President of the International Council for the Exploration of the Sea, I know well what can go on in the backrooms of international discussions. While Canada may not go to a meeting with a request on the table, it might emerge from a meeting with a request on the table because of the interplay among factors that occurs in the course of a negotiation. This is a big hole in the new convention, and it should be plugged as quickly as possible.
Senator Cochrane: Late last month in the media I read a report in which Minister Hearn indicated there had been only one serious incident of foreign overfishing in NAFO waters this year. He noted at that point in 2007 — and that was November 21 — there had only been 11 citations for the year. This represented a 10-year low. From your perspective, what is the reason for this drop in the number of offences? Are NAFO rules working or is this just a coincidence?
Mr. Wiseman: I do not have all the details, but the quotas were significantly lower, which should have led to less fishing activities, fewer vessels on the grounds and, therefore, potentially lower sanctions being found. I do not know if that is the case.
It is also true that whenever great attention is paid to the possibility of new sanctions and new processes, the parties get a little nervous and they back off. They do not want to misbehave too badly to make sure that heavy new sanctions or new processes do not come into place. That may have psychologically affected some of the fishermen as well.
Over time, there have been years where we have not had that many serious infringements. We had a lot of minor ones. In the past, when there were serious infringements, vessels were called back to port as well, just as was done this year and, one would hope, will continue in the future.
Senator Cowan: We understood that the minister was going to appear before the committee. Is he scheduled on another date?
The Chair: We have not scheduled another date. We invited the minister to come and tried to accommodate his schedule. We understood that he could come tonight and agreed to have our meeting tonight to fit in with his schedule. However, yesterday we learned that the minister would not be coming tonight.
I did not hear any reason given and just assumed that he has other responsibilities.
The minister was invited, and with regard to the future, that is a decision we will have to take as a committee. The reason I went ahead tonight is because we are running up against the Christmas season. We do not have that much time left before we break. However, we will assess the situation later on.
Senator Cowan: I meant no disrespect to the witnesses who are appearing tonight. It is helpful to have their views, but it strikes me — without anticipating what Mr. Bevan will say — that some issues must be addressed at a political level rather than at an official's level.
Mr. Parsons, you mentioned at the beginning of your presentation that you had been publicly drawing attention to the deficiencies you see in the draft convention. Have you had any response from the minister, either agreeing with or disputing the concerns you have raised?
Mr. Parsons: Our involvement in this process began with the Senate hearings last fall, when two of my colleagues and Mr. Rowat were present and testified. At that time, they were engaged in discussions with officials in the department about the nature of changes that were emerging. It was a very early stage in terms of proposed changes.
Over the winter, it became apparent that some of the changes being proposed by the other parties were quite detrimental to Canadian interests. Mr. Applebaum met with DFO officials and brought those matters to their attention. After some time, it appeared that nothing was occurring in terms of making any changes in response to those concerns.
I do not recall the date, but I personally got drawn into this matter when Mr. Applebaum, based on his long experience in international relations, prepared a letter to Minister Hearn outlining his concerns and sent it, privately, to the minister. He was not trying to draw any public attention or create any fuss or bother. He just wanted to outline the concerns privately with the minister.
Mr. Applebaum is a senior, non-partisan, former executive with no particular vested interest in the outcome of these negotiations. Under any rational situation — and I served 13 ministers of various parties over the course of my career — the normal process under those circumstances would have been for the minister to have invited him in for a chat. Instead, Mr. Applebaum to this day has never received an acknowledgement of his letter to the minister. He has received no response, which in my long experience in government is an incredible event. I know the amount of correspondence that goes to a minister. I have seen it personally. I have had to approve the responses that go out. Virtually everyone gets a response of some nature. It may not be the response they are looking for, but they get a response. To this day, Mr. Applebaum, to the best of my knowledge, has not received any written response from the minister.
At some point, someone made Mr. Applebaum's letter available to the Fisheries' Broadcast in Newfoundland, which is a radio program that talks about fisheries matters. Mr. Applebaum was invited and gave an interview in which he outlined the things that were in his letter and his concerns. Sufficient time had passed up to this point that it was clear that he was not going to get a response to his concerns. Therefore, in response to being approached by a journalist, he discussed these concerns publicly.
Subsequently — and I do not know the exact timing — the minister went on the public airwaves and bashed Mr. Applebaum. I am not sure the words he used, but Mr. Applebaum probably remembers them vividly. Basically, it was a derogatory comment, dismissing the concerns without ever really having discussed them.
Subsequently, others of the group that we identified earlier became involved. Once we saw what was occurring, we said, ``We cannot let this pass. This is a travesty. This is far too serious an issue. This has extremely profound, long- term consequences for Canada. We must take a stand. We must intervene.'' We are former senior government officials, enjoying our retirement in one way or another. We have never commented publicly on public policy issues since we retired, except for this one issue because we felt compelled to come out from whatever we were doing in retirement and try to influence the minister in advance of the Lisbon negotiations. We were not trying to change the world. We were trying to get a hearing with the minister.
On one occasion, I had a call from Mr. Bevan's assistant. Mr. Wiseman had a call and Mr. Rowat, who is not here, had a call. We were told that there would be a briefing the following day on the NAFO proposals. We were invited to attend. During the course of my conversation with the young lady — and this is without me posing a question — she said, ``Mr. Applebaum will not be there.''
After she had given me the time and place, I went back to her and said, ``Could you please clarify what you just told me about Bob Applebaum?'' She said, ``A departmental decision has been taken that Mr. Applebaum will not be present at the meeting.''
My colleagues and I informed Mr. Bevan's office that while we would welcome a briefing, we would not welcome a briefing from which Mr. Applebaum, who was the one who had dug into this file, was excluded. That is an example of the way in which former senior public officials, concerned only about ensuring a suitable outcome for Canada in these negotiations, were treated in this circumstance. Subsequently, a couple of people attempted to arrange a meeting between some of us and the minister. The minister declined.
Senator Comeau: I understand that we will be hearing from Mr. Bevan later on this evening, so we will certainly be asking him some questions.
Mr. Parsons, you raised your points in a colourful way; we will try to be as colourful in the way we ask the minister our questions.
First, I want to thank all of you for spending the time in your retirement to continue to show interest in fisheries- related issues. It heartens me to learn that you have not forgotten the department for which you worked for many years faithfully. I do appreciate that.
Are you aware whether the industry attends meetings with the officials who negotiate these new conventions?
Mr. Parsons: Yes, there is a process whereby the industry is consulted, for example, in the annual process of negotiation, and, of course, on an issue like this.
Senator Comeau: Would they be invited to actually attend the meetings and be part of the discussions held with the other countries?
Mr. Parsons: Yes, some industry people do participate in an advisory process and do participate, for example, in the meeting in Lisbon.
Senator Comeau: What has been the practice of past governments in the ratification process? Would it be done by government or would it be passed on to Parliament with a request to approve?
Mr. Parsons: I am subject to being corrected by Mr. Applebaum in terms of other agreements. I guess the process varies, depending on the magnitude or the nature of the particular agreement. Many agreements in the past have been agreed to by the government through the Order-in-Council process, without reference to Parliament. However, as I stated in my introductory remarks, in the 2006 Speech from the Throne, the Honourable Stephen Harper, currently Prime Minister of Canada, pledged to bring any international treaties with significant implications to Parliament to be voted upon.
Senator Comeau: Are you aware of who asked for article VI, paragraph 10? Was it the EU or Canada? At this point, I guess I would be asking for speculation as to why they would be asking for this provision.
Mr. Parsons: I defer to Mr. Applebaum on that question.
Mr. Applebaum: None of us were involved in these negotiations, but, by implication as to who was doing what, my understanding is that the European Union not only asked for it but also demanded this particular provision, namely, article VI, paragraph 10, and the various forms it took before it finally emerged.
There is no reason why Canada would have asked for it. It does not make any sense, and it came from the European Union.
In my earlier statement, I tried to cover their motives. In many ways, this was a way of undermining the 200-mile zone. It started 30 years before at the United Nations Conference on the Law of the Sea. If the Spanish and Portuguese had seen a provision like this one included, they would have been elated, but they could not have dreamed of it because it would not have been possible.
In the UNCLOS negotiations in the 1990s, no one even whispered about an article such as this, article VI, paragraph 10, to allow international management inside 200 miles. However, it appears that during the NAFO negotiations, the European Union saw weakness on the Canadian side and pounced. They said, ``We can get this in now,'' and they did.
Senator Adams: Mr. Parsons, you talked about Canadian sovereignty in your brief. By that, you are referring to inside the 200-mile limit and the NAFO agreement. About 30 years ago, there was an agreement about that 200-mile limit. Can you explain how much power you had before?
The EU takes more from us every year. This all started with the collapse of the cod fishery. The fishermen had to stop fishing. All the fish plants are closing down, while the Europeans are getting bigger and bigger ships. They are fishing more and more every year. They are fishing in the warm water and are getting inside our 200-mile limit.
Mr. Parsons: I do not think the chair will allow me to answer fully your question in the time constraints we have tonight. There is a long saga, over many years, of the raping and pillaging of our resources. Some was done by Canadians, as we know, but certainly the practices outside 200 miles contributed in a significant way to the collapse of those stocks. The European Union, particularly after the accession of Spain and Portugal in 1986, was a major player in that collapse.
With respect to the sovereignty point that you raised, we can see no logical reason why this paragraph has been included in the amendments to this convention.
The only explanation I have heard — and I do not even regard it as an explanation but rather as a pretence — is that we now have a new convention that incorporates language about ecosystem approach and precautionary approach, which of course was not there in the earlier NAFO convention; and because this convention is broader — and I cannot follow the logic — somehow this should allow NAFO, if Canada so requested, to intrude inside the 200-mile zone. To me, this is a total red herring and rubbish. I do not know who dreamed it up.
Senator Adams: Do we have any power to change that agreement in any way? Is there a new clause in there for the European Union?
Mr. Parsons: Are you referring to this sovereignty clause, inside 200 miles?
Senator Adams: Yes.
Mr. Parsons: Yes. It says, ``With a Canadian request.'' In other words, it could not occur without a Canadian request. However, as I mentioned earlier, in remarks that Senator Comeau described as colourful, a lot happens in the back rooms of an international negotiation. As an example, in the process of trying to get the European Union to agree to a reduction in the total allowable catch of Greenland halibut or a stock important to Canada, it is quite conceivable that in return Canada might be forced to agree to something that they want that could invoke this clause because the clause is in the convention. If you never intend to use it, why would you put the clause in the convention? I have received no satisfactory answer to that question. I have heard some of the rhetoric, but to me they are purely meaningless words.
[Translation]
Senator Robichaud: I too have a lot of difficulty understanding why such an article would have been included. When we talk about the European Union and the strongest members of this organization, do Spain and Portugal have much to say?
[English]
Mr. Wiseman: Yes, senator, they have very much to say. The system is a big tent. The Northwest Atlantic is the area of Spain and Portugal. It used to include Germany, France, Britain and even Italy, but now it is now Spain and Portugal. The three Baltic states are now also part of the European Union. When decisions are being discussed about the Northwest Atlantic, the council generally lets the parties with an interest in the area have the primary say.
Someone from Great Britain is not likely to stand up and get in the way of Spain and Portugal on a NAFO issue because they do not want Spain or Portugal to get in the way of discussions that may take place between the U.K. and Norway, for example. Everyone takes care of their own areas.
In the NAFO regulatory area, yes, Spain and Portugal have very strong positions and are quite influential. They are usually the largest delegations within the EU.
Senator Robichaud: You say the time is ticking and there is still time to somehow refuse to ratify. You said that you needed three quarters of the NAFO members to ratify the amendments for the new convention to come into effect?
Mr. Applebaum: That is my understanding of the provision in the NAFO convention, yes.
Senator Robichaud: Did you say that at the moment they were close?
Mr. Applebaum: No, senator. I did not say that as I have no idea of how close any of them are.
Senator Robichaud: However, it could happen. We are almost alone on our side if we refuse to ratify this new agreement.
Mr. Applebaum: That is my understanding, yes.
Senator Robichaud: If the others move quickly enough and we take too much time in responding, it will be upon us and it will be too late for us to react.
Mr. Applebaum: Senator, that is right.
Mr. Parsons: Time is of the essence on the issue in that, as Mr. Applebaum explained, we do not know how long it will take three quarters of the members of NAFO to formally submit whatever they need to submit to Canada as the depository government to say they have signed on to this package of amendments. Time is of the essence in the sense that it is important for the Government of Canada to come to its senses and pull out of this before we get locked into a situation where we have tied up our future for 25 or 30 years with no opportunity to change it.
We have been talking about this NAFO issue; we have been talking about the foreign overfishing outside 200 miles for decades. Here we were presented with one opportunity to fix it, and instead of fixing it we end up with a bigger mess than when we entered the negotiations.
Mr. Bevan says that this will all work very nicely because it is in the best interests of all NAFO members to maintain healthy and sustainable fish stocks. Well, of course, in theory or principle it is in the interest of all NAFO members to maintain healthy and sustainable fish stocks, but what is the practice, and not just in NAFO? What is the practice generally in international fisheries? The practice generally is that countries go to the table and fight over what the conservation measures should be. If you are fortunate, they agree on appropriate conservation measures, but after that they fight over what the allocations could be.
DFO officials and Mr. Hearn take great pleasure in the fact that somehow through this two thirds vote they have locked in the Canadian allocation percentages. As I said in my opening remarks, what is the benefit of locking in allocation percentages if in order to achieve that you have put yourself in a situation where it is much more difficult to secure agreement on necessary conservation measures? It will be even more difficult in the future to get agreement to reduce a total allowable catch.
[Translation]
Senator Robichaud: I think we could discuss this for a long time.
[English]
The Chair: I know people had other questions to ask, but there will perhaps be opportunities later in the evening to ask them.
I would like to thank our three witnesses for being here and for being so frank and helpful to us in our discussions.
I should like now to welcome Mr. Bevan and Ms. Lapointe.
Mr. Bevan, you had a chance to hear some of the previous discussion. We would like to hear from you, and then we will go to questions. Perhaps you would like to make a presentation to us now. Everyone has a copy of the notes in English and French.
David Bevan, Assistant Deputy Minister, Fisheries and Aquaculture Management, Fisheries and Oceans Canada: I will be using the deck that was distributed earlier.
The Chair: There is a deck in English and French as well. I repeat, for those people who might be watching: If you would like copies of these documents, you can obtain them by contacting the clerk. The documents may help you to understand this issue.
Mr. Bevan: Thank you, Mr. Chair.
First, why did we pursue NAFO reform? The first reason is obvious. The 1979 convention is fatally flawed. It permits objections with no constraints. There was nothing that required the person, the country, or the contracting party objecting to put forward reasons or assurances that their objection would not cause conservation concerns. There was no dispute settlement process that would prevent the resolution of conflicts, so conflict was allowed to fester within the 1979 convention.
Decisions were based on votes, 50 per cent plus 1, leaving winners and losers, and the losers were free to act unilaterally. There was single-species management, so we were looking only at MSY — maximum sustainable yield — not looking at the broader context of the impact on the ecosystem. That kind of management, internal to our zone as well as external, has proven to have serious flaws.
The 1979 convention almost guaranteed that there would be unilateral action and that stock collapse was inevitable. You cannot have a system of governance where you are looking at such a fixation on certain rules that you forget the whole workings of the convention in practice. When you drive people to be winners or losers in a vote, they still have an option under this convention to act unilaterally. They did so and the stocks collapsed, which was almost inevitable.
Therefore, we needed to find a way to change that convention. We could not live with the governance that existed. Actually, NAFO, in the last number of years, has not behaved in this way. Members countries have sought consensus to avoid the kind of outcome that existed under that process over the course of the 1980s and early 1990s.
Our objectives for NAFO reform were to protect our quota shares to ensure that we maintained the shares. Canada, the EU and Russia hold over 90 per cent of the quotas. We have three votes. There was some concern as to what kind of system of governance might help us in that regard.
We wanted to constrain the use of objections by making objections part of the decision-making process, whereby the onus was on the state wishing to object. That means that the state wishing to object would have to demonstrate that they were being discriminated against, that there was some other rational and defensible reason for the objection and that the objection would not lead to conservation concerns.
We wanted to implement a mechanism to resolve disagreements, in particular, those over allocations. Our experience in NAFO in recent years is that great progress has been made on NAFO conservation and enforcement measures. Those were all achieved through consensus. We end up with more significant problems on allocation issues. Those are the issues that have led to votes or at least are driving the parties to object, and we wanted to find a way to deal with those concerns.
We wanted to further improve the monitoring, control and surveillance scheme to curb non-compliance and achieve effective enforcement and meaningful sanctions. Over the last year, millions of euros in fines have been levied against non-compliant vessels, with one serious infringement discovered by Canadian inspectors, resulting in, as required under the NAFO conservation enforcement measures, that vessel being pulled back to Spain with only a few hundred tonnes on board. It was inspected by Canadians. Spanish inspectors were found to have been in non-compliance and administrative sanctions were levied against it. That is the kind of result we are looking for to maintain compliance in the zone and to prevent the overfishing that crept back into NAFO over the early 2000s and that we have seen significant progress in dealing with over the course of 2007.
Our international strategy is not just NAFO reform or RFMOs—regional fisheries management organizations. We have moved forward on a multi-faceted approach to stop overfishing. You cannot rely on a convention, legal text, to stop overfishing. You cannot rely on one element or one dimension to respond to the concerns that we all have about overfishing. NAFO is just one aspect of it, and we work in a multilateral process. It has helped create conditions for change and has heightened international awareness for the need to end overfishing.
Strong bilateral relationships have been a key component of this strategy. We have worked hard to create relationships with key players in Spain and Portugal, between the ministers, but also relationships at all levels, right from inspectors through to directors general, ADMs, et cetera. That allows us to have a much better capacity to influence behaviour and to avoid crises.
In terms of the global context, on slide 5, you will see that we have an increasingly dynamic environment, with changes occurring at a quick pace. We have seen, for example, the international commitment to stop overfishing and reform RFMOs, the High Seas Task Force, and the ministers that were involved, including the Canadian minister. The UN General Assembly Sustainable Fisheries Resolution was adopted in 2006, with RFMOs required to report back shortly to demonstrate they have taken action in response to that declaration. We have ENGOs, or environmental non-government organizations, now engaging significantly in the debate on illegal, unreported and unregulated, or IUU, fisheries.
In the U.S.A. we have a new Magnuson-Stevens Fishery Conservation and Management Reauthorization Act. It will limit access to the American market, which is a significant market globally, to illegally caught fish. Those fish that cannot be demonstrated to come from legal and sustainable fisheries will not have unfettered access into the U.S. market. U.S. administrators will have to go to Congress and demonstrate that the RFMOs that they are part of are working sustainably.
That is the change we are seeing. We are seeing market access linked to sustainability. That is something the Canadian industry now has to respond to in terms of demonstrating that our fisheries are sustainable and that we can certify that either through eco certification bodies such as the Marine Stewardship Council or through our own checklists and sustainable fisheries frameworks.
In the EU context, external and internal scrutiny following the Atlantic bluefin decision in ICCAT led to reforms in fisheries policy, and there has been a large uproar in the EU relevant to their Common Fisheries Policy. They have acknowledged it has problems and are looking at renewing it in an effort to address these issues. However, they have also moved to suggest that they, too, will put in place market measures to prevent access to their markets of IUU fish and unsustainable fish.
The North Atlantic fisheries ministers have also made commitments to stop IUU fishing. They have put in place port controls. They have emphasized their own obligations under flag state controls, put in place port-state controls and are now looking at market-state controls as well.
With respect to the port-state controls, about 15 flag-of-convenience vessels flying flags from various states are fishing for Barents Sea cod and redfish in area 1F. Those vessels were denied access to ports. They could not land their catch. They could not get fuel, provisions or support. Any vessels that were contemplating offering at-sea support were told that should they do so, they would end up on an IUU list and be unable to access ports in the North Atlantic. That had the effect of scrapping six of those vessels and putting nine of them outside of operations. Significant progress is being made in that regard as well.
In conclusion, there is much more, and growing, transparency and accountability, in particular with the RFMOs that deal with the straddling stocks. Certainly, those in the North Atlantic are performing better than they have in the past.
With respect to the key results of 2006 and 2007, in 2006 we improved the monitoring control and surveillance measures. We have in place now certain types of infringements that will require the state to remove their vessel from the zone and bring it to port for unloading and inspection. By the way, that does not mean that this will happen at the end of the trip. I mentioned the Spanish vessel that was found to be in non-compliance by Canadian inspectors. It was removed from the zone with only a couple of hundred tonnes onboard, instead of the usual thousand-plus. It was then taken back and inspected by the Canadians and the Spanish and found to be in non-compliance and fined.
At the 2007 meeting, convention text was adopted that reflected Canadian objectives regarding the area of application, protection of Canadian quota shares, constraints on the use of the objection procedure, and a new dispute settlement procedure. You have to look at that convention text in terms of its overall governance. The intention there is to seek decisions through consensus. Canada has done very well in that regard in the last 10 years or so, during which we have achieved many positive outcomes, such as halibut rebuilding plans, through consensus. We think that is the best way to operate. We have put in a lot of effort and energy. We bring good people to the table to ensure that we get the outcomes we are seeking. In the absence of consensus, we are looking at a two-thirds vote to ensure that the number of parties outside of the decision will be minimal and that there will be less tendency to act unilaterally. The rest of the convention certainly discourages that through the objection procedure and dispute settlement.
Canada achieved agreement on the safeguard provision in the NAFO measures so that the conservation and enforcement measures and the quota shares will remain in effect until there has been a decision by the commission to change them. NAFO also adopted proposals for coral protection and strengthening controls on Greenland halibut fisheries. Those, again, are seeing results. We also will be studying vulnerable marine ecosystem measures that will come out of an intersessional meeting in Montreal.
An Hon. Senator: Greenland halibut or turbot?
Mr. Bevan: Turbot; that is correct
The enforcement measures are a plus because we have immediate cessation of all fishing activities following inspection by a flag state contracting party. Therefore, we can board and do an inspection. If we find an infringement, that fishing stops and there has to be an investigation by the flag state, and the party with the full authority imposes interim sanctions against the vessel. In the case of the EU, that means that a flag state inspector from the country would then be able to take action.
In the case of serious misreporting or repeat offences, the flag state contracting party — the flag state being the country whose flag is on the vessel — must direct the vessel to port for physical inspection and enumeration. The time in port entails substantial losses. Therefore, if you have to take your vessel from the NRA — NAFO regulatory area — off the Grand Banks of Newfoundland and take it back to Vigo, Spain, when it has only had a partial trip for an inspection, that in and of itself certainly adds to the deterrence. There is a requirement to proceed immediately to port where no inspector or person authorized to carry out the investigation is available in the NRA. It is not an excuse to keep on fishing. If no inspector is there, the obligation is to remove the vessel from the fishing grounds and bring it to port for further action.
There is a mandatory application by the flag state contracting party — within its legal system — of interim sanctions, which may include fines, seizure of illegal fishing gear and catches, et cetera. Those are being used. We only found one major infringement, but on inspection of the catches, the Spanish government was levying fines. I believe the total fines levied against six vessels exceeded 1 million euros, so it is not something they are taking lightly.
If we look at the old versus the new, management of the old single species based on maximum sustainable yield, or MSY, has proven to be high risk over time. Our science in the long haul is not exact to the point where you can pinpoint the MSY. If you make mistakes, you pay for it in terms of the impact on stocks. The new part is that we are embracing the precautionary approach and the ecosystem approach, which are less risky and more sustainable because we are not looking at one set of indicators but rather a broader set of indicators. We therefore have a better chance of picking up risk.
With respect to governance, there was a simple and open-ended objection procedure under the old system, with little or no onus on the objecting party to demonstrate no impact on conservation. The improved objection procedure places onus on the objecting party to demonstrate that they are not doing anything that will compromise conservation. They have the option of going to an ad hoc panel.
Decisions rested on a simple majority, with winners and losers. Now, if necessary, there is a requirement for a two- thirds majority, but consensus is what we seek first to have everyone agree with the decision.
We did not have dispute settlement, but we do now. That process will lead to the UNFA and UNCLOS procedures over time. Legal loopholes are being sought, but the issue here is one of governance in total. The way this is intended to work and the way we would expect it to work, given the overall governance and the external pressures brought to bear on states, is that this would be the most likely path to follow.
There is now a good faith and abuse of rights clause so that people have to avoid using the loopholes. We now also have a relationship to other agreements.
With regard to functioning, some streamlining was involved.
Governance is key. In the old framework, we had simple majority, with more frequent use of votes leading to more frequent decisions that were one-sided. When you have a vote, you do not have a tendency to modify your view. You take your view, your own narrow self-interest, and express that in your vote. When you seek consensus, there is some modification of those views. However, the decisions are generally more moderate.
Previously there were objections and no dispute settlement, which led to unilateral action. Until recently, there was little compliance, follow-up or transparency. In the new framework, consensus decisions are the default and a two- thirds vote is the last resort. The decisions are more inclusive and there are objections with conditions. Dispute settlement is available. More inclusive action is expected, but unilateral action would be discouraged. Right now, we have much better follow-up to infringements and transparency.
That is what we are hoping for in terms of overall governance. Again, this governance should not be viewed in isolation. Looking at the text of a convention in isolation of the entire international environment in which it is functioning will not give you an idea of how it will work. With all the pressures to end IUU fishing and all the changes in terms of market controls and port state controls, all of that must be considered as you look at how these things will function.
Going forward, we want to keep working to create the conditions for change multilaterally. We want to continue to work through a number of international fora and to coordinate our efforts there to make sure that the pressure is on the regional management fisheries organizations to change. We are seeing it happen now with NAFO and the Northeast Atlantic Fisheries Commission. We are not yet getting the results on the tuna RFMOs. Our overarching objective is to achieve sustainable fisheries by basing and implementing fisheries management decisions on scientific council advice. That is always a challenge if the advice is out of sync with the views of fishermen.
We want to address overfishing of turbot within NAFO and combat IUU fishing activity. Regarding turbot, as the number of vessels participating was reduced, the CPUE, or catch per unit of effort, was rising. There was a need to get ahead of that. This year, I am happy to say that the Spanish and Portuguese governments, as a result of their enhanced inspections, shut down their fishery early in order to ensure their quotas were respected. They have avoided the problems we have had in the last couple of years with quota overruns. Even though they reduced their fishing effort based on the CPUE or catch per day that we had seen in previous years, there were problems due to the fact that it kept going up. The 2006 effort was reduced based on what they saw in 2005. We have overcome that this year. We want to establish a process for protecting vulnerable marine ecosystems. We have done that with the coral closures and more action will come out of the intercessional meeting.
We want to strengthen the organization. We recognize that there is a link between the reform of NAFO and fish and compliance issues, and make tactical choices accordingly. In other words, we have part of a broader process. We have had progress on the compliance aspect.
By the way, many coastal states are looking at the convention. Their legal experts did not perceive the same risks as have been expressed to you this evening. Those international lawyers looked at it and said, ``What is the problem?'' They did not perceive these issues to be encroachments on sovereignty. They are subject to the same language in conventions that they are party to as coastal states. They have no problems accepting those words.
Our presentation contains an appendix that deals with the risk of the two-thirds voting requirement. I want to point out that votes are a last report. They do not result in better governance; they result in a vote outcome. Depending on the nature of the convention, the decision may be something completely different from the vote.
I know that a lot of effort was put into winning votes in NAFO in the past under the old convention only to have the governance envisaged by that convention frustrate those votes. Unilateral action was taken that crashed stock after stock.
Those are the things we are trying to prevent with the new convention. It would be a grave mistake for Canada to withdraw its support for the new convention and to suggest that we keep a 1979 convention that has unmistakable failure associated with it. Its track record is appalling. The number of stocks that are under moratorium are attributable to that kind of governance. That is not what we should try to maintain in 2007.
The Chair: I remind committee members that the context of this debate is that everyone agreed that NAFO had been a failure. It was not functioning and was not doing the job it was supposed to do. That is why custodial management was suggested.
The question now becomes: Is this a reasonable alternative to the old NAFO? That is the issue before us tonight. Are the words that we are seeing now better than those in the old agreement? Will they preserve the desired purpose? Clearly what we had before did not work. The question is, will this work?
Senator Cowan: Does this framework achieve what the current minister promised during the campaign? Does it enable Canada to exercise Canadian coastal management out to the edge of the Continental Shelf?
Mr. Bevan: There is a lot of work being done in that respect. We do exercise Canadian management to the edge of the Continental Shelf for sedentary species in the sea. We have here something that will work, in our view, in terms of following scientific advice, implementing sustainable fisheries and achieving compliance.
Senator Cowan: Does it enable Canada to exercise custodial management to the edge of the Continental Shelf?
Mr. Bevan: I do not know what ``custodial management'' means. It is not an extension of jurisdiction. It is, however, control over fisheries in this way: We know how much is being caught and we know that the quotas are being —
Senator Cowan: Is that what you understood by custodial management?
Mr. Bevan: Yes.
Senator Cowan: Does this draft convention square with the minister's statement that Canada would only accept a NAFO convention that clearly defines that the regulatory authority of NAFO is only on the high seas?
Mr. Bevan: That is our view. The wording in there requires that we have to ``request'' and ``accept'' should we, for whatever reason, wish to have it otherwise. We have heard there will be arm-twisting or what have you, but the reality is that this is up to us. We are not likely to see that used in the foreseeable future. It is in there because the negotiation was multilateral. That wording was requested not by the EU alone but by Iceland, Norway and other coastal states. They are all subject to that wording. The U.S., St. Pierre and Miquelon and Denmark are all coastal states in NAFO.
Senator Cowan: It is not restricted to Canada.
Mr. Bevan: It is not restricted to Canada, and it is accepted by all the legal experts as reasonable wording. It is not any kind of wording that would jeopardize sovereignty.
Senator Cowan: Were you aware of the letter from Mr. Applebaum to the minister?
Mr. Bevan: I had heard of it, yes.
Senator Cowan: Have you seen it?
Mr. Bevan: Yes, I have seen it.
Senator Cowan: Were you aware that it had not been replied to?
Mr. Bevan: I had heard it had not been replied to.
Senator Cowan: Did that strike you as odd?
Mr. Bevan: We are not the fastest in response speed sometimes. I know there had been a number of issues in terms of briefing Mr. Applebaum prior to his appearance before you, doing that in confidence. There were then subsequent —
Senator Cowan: Were you aware of your office advising Mr. Parsons, Mr. Rowat and Mr. Wiseman that Mr. Applebaum was to be excluded from any briefing?
Mr. Bevan: That was a decision that the department took at the highest levels, yes.
Senator Cowan: By the ``highest levels,'' you mean the ministerial level?
Mr. Bevan: It was taken inside the department.
Senator Cowan: Did you support that decision?
Mr. Bevan: I accepted that decision.
Senator Cowan: Finally, I would like you to tell me about the process now. A draft convention is currently before all of the member states. You have described in detail all of the advantages and progress that has been made as a result of this and have trumpeted, as has the minister, that this has been quite an achievement on the part of Canada. I take it that at least the Government of Canada, the government of which you are part, supports this draft convention?
Mr. Bevan: That is correct.
Senator Cowan: Can you tell us, first, when will it be ratified by Canada? Will it be ratified by Order-in-Council, which I understand has been the practice in some cases in the past, or will it be submitted to Parliament for its views as was suggested? I did not hear the quote from Prime Minister Harper, but one of the previous witnesses attributed that statement to Prime Minister Harper. Which will it be?
Mr. Bevan: It has to be ratified by Canada as a contracting party to the convention.
Senator Cowan: I understand, but what process will it follow?
Mr. Bevan: The process is up to the government, obviously. The government has made commitments on significant international agreements to take it to Parliament. Is this significant or not? I think that is up to —
Senator Cowan: Surely you would agree, after having extolled its virtues all this time, it is not a question of just changing a comma here or there. In your words, it is a very significant achievement on the part of the Government of Canada. Others might take a different view, but at least it is a significant document and a significant treaty, is it not?
Mr. Bevan: It is my own personal view, perhaps, because I am very close to this issue, but that decision will have to be made by the government. I cannot prejudge that.
Senator Cowan: Do you know when the decision will be taken?
Mr. Bevan: We will have to wait some time. The new convention has not yet been submitted to parties. We are the depository of the new convention, but it has not yet gone through all the process necessary to have that happen. It is not ready yet.
Senator Cowan: The ratification process, not only by Canada but by the other member states, has not begun yet?
Mr. Bevan: No.
Senator Cowan: When will it begin?
Mr. Bevan: Not too long, I hope. I understand that it should be available for January.
Senator Cowan: Do you disagree with Mr. Applebaum that the clock is ticking?
Mr. Bevan: The clock is ticking because we are getting closer to January, and once January happens it will be there.
I would point out that most of the contracting parties have fairly lengthy processes that have to be followed. It is not like it is going to be ratified by 75 per cent in the next several months. It will take some time because of the normal process that has to be followed by all of the contracting parties.
The Chair: Before we go to Senator Comeau, just for my own clarification, I refer you to the clause stating that NAFO can intervene inside 200 miles on the request and the agreement of Canada. You are saying that this does not just apply to Canada, that this is widespread and that many coastal states have accepted it. The question still is why?
Let us assume that everyone wanted it. Why did they want it? What is the purpose? What is the motivation? Did we get anything in return for agreeing to it?
Mr. Bevan: The reason for why is it was language pulled out of the Northeast Atlantic Fisheries Commission. It was requested there in the past for both internal politics, I guess, in their situation. They may have wanted to have the same measures apply inside and outside zones for reasons that are their own.
The Western Atlantic contracting parties did not see it as a threat to their sovereignty in any way, shape or form. We are looking at a completely different kind of management. We are not looking now at single-species focus, one TAC and quota on ``a'' species and bycatch rules that are not biologically justified. We are looking at a much different kind of management regime in terms of the whole ecosystem. While we did not use that phrase, for example, or did not vote for that, we did put forward the provisions on coral protection inside and outside the zone. It is all the same. It is something we put forward to have our protection that is taking in place inside the zone also apply outside the zone. You will probably see more of that kind of practice in the future. If you have a vulnerable marine ecosystem, it does not stop at the 200-mile limit. It is something we all have to work to protect if we are going to ensure it. That does not mean we will use that phrase, however.
The Chair: No, but I am trying to get my own head around the motivation for it and why it is there because it was not there before. The argument is made that it is a foot in the door. It is an insertion of something that was not there before. Maybe it will never be used, but maybe it will.
We are being asked to trust that there has been a reform of the EU. We are asked to trust that the Spanish and the Portuguese, who were not friends of our stocks before, have now become friends of our stocks.
Those of us who have lived through this issue for decades know all about the attitudes that existed before. At the same time as we have to accept at face value that attitudes have changed, we also have to accept that there has been an insertion of a phrase that was not there before, one that could possibly be used to our detriment.
Senator Comeau: Mr. Chair, I am on the same wavelength.
Mr. Bevan, putting aside for the moment the issue of votes and binding mechanisms, which I am quite sure members of this committee will reflect upon, I want to zero in on what appears to be the key issue tonight, which is article VI, paragraph 10. It states:
10. The Commission may adopt measures on matters set out in paragraphs 8 and 9 concerning an area under national jurisdiction of a Contracting Party. . . .
That sentence is key; it is the elephant in the room tonight.
Three retired individuals appeared before us earlier tonight, individuals who have long served the Canadian people through the Department of Fisheries and Oceans. They said, ``Look, we think this is a problem.'' Try to explain to us, Mr. Bevan, in your own words, why we should not be concerned if these three individuals are concerned. Convince me as to why we need this wording.
Mr. Bevan: I believe you have heard the term ``to the detriment of Canada.'' Clearly, that will not apply unless Canada asks for it and approves it.
I want to point out that words in convention text do not save fish. We have seen words in convention texts outside of NAFO and in new conventions. They look great, but they do not save fish. What saves the fish is collaboration, the right attitudes, enforcement, followup on non-compliance, the right kind of cooperation on science, et cetera. That is all part of this package that we are looking at in terms of NAFO.
Those words are there. They were there at the approval of all the coastal states that have them apply in NEAF and NAFO.
Senator Comeau: You are not convincing me as to why this clause needed to become part of the convention. I am uncomfortable with this proposal.
Mr. Bevan: It is part of a package that we have to deal with.
Senator Comeau: Let me approach it from a different direction. Who asked for it?
Mr. Bevan: It was requested by a number of contracting parties: Norway, Iceland and the EU asked for it.
Senator Comeau: Did Canada?
Mr. Bevan: We accepted it.
Senator Comeau: What was their motivation to have this clause added, in particular the words ``concerning an area under national jurisdiction''? Why would they want that?
Mr. Bevan: Quite frankly, they pulled that wording out of existing convention text in other conventions and found that to be an effective way to deal with that question. They found that the concerns raised by the three previous witnesses were not something they shared. The other parties did not share those views. We do not share them. The existing advisers do not share them.
You asked a question about whether we meet. Yes, we meet frequently with the advisers, particularly in a year when we are doing this kind of work. We met many times with the advisers, and they do not share those concerns.
Senator Comeau: Your advisers are the fishing industry, if I understand correctly.
Mr. Bevan: They are the fishing industry. I also believe a letter is being issued on this point by the commissioners. Earl McCurdy and Ray Andrews have put forward their views on this matter. Again, the views expressed by the three previous witnesses are not views shared by other contracting parties that are coastal states, not shared by the advisers, and are not viewed in the context of the overall governance of how this is going to work and how it is working. The convention text that you will see shortly in terms of new convention actually reflects more accurately what has been happening in the last few years, where we have seen the overfishing start to drop. Until this year it has been very good indeed. That did not happen because of words in the convention. It happened because of all the external factors: the bilateral relationships, the way the market is responding to the ENGO pressure to get rid of IUU fish and to stop giving access to unsustainable fisheries. That is what is driving the change. It is not just what is in the draft.
The Chair: You mentioned Earl McCurdy and Ray Andrews. You said they had made their feelings known. Was this in writing or to you?
Mr. Bevan: I believe they issued a letter today to that effect.
The Chair: I see. Do you have a copy of it?
Mr. Bevan: Unfortunately, even though I did print it out, I do not have one with me.
The Chair: Could we obtain copies of the statements by Earl McCurdy and Ray Andrews? We may even want to call Earl McCurdy and Ray Andrews as witnesses. That may be a good idea.
Mr. Bevan: I point out that we also had the support of the Province of Newfoundland and Labrador as well.
Senator Cochrane: What about other groups such as fish processors and fishers?
Mr. Bevan: The advisers were made up of the Fisheries Council of Canada, major fishing interests and the FFAW through Earl McCurdy. A number of fishing interests were at the sessions that led up to Lisbon, as well as at Lisbon, including major companies. People with real fishing interests in this area were there and supported it.
[Translation]
Senator Robichaud: I have difficulty understanding why articles 6 and 10 are there. You say that other parties asked for them to be included and that Canada agreed. Does this mean that at the outset you did not really agree with it?
[English]
Mr. Bevan: We accepted it as part of the overall change in the way the convention works. I think it is very low risk, and therefore it was acceptable to Canada because of the double nature of the need to request and the need to accept. It was put forward by a number of other contracting parties that have lived with it for a number of years. Those contracting parties are coastal states in NEAF, the brother organization on the eastern side of the Atlantic. They are contracting parties who are coastal states, and they find no problem at all in accepting that provision.
When we looked the overall issue in terms of getting the changes we wanted to see, not just in the convention text but also in the way the convention has been working and in the way the NAFO conservation and enforcement measures have been working, everything was intertwined. They are not separate entities. When we look at the overall package and the results on the water, where it counts, we accepted that. Where it counts is in achieving results. We are looking at one phrase, one clause, in the overall package. You have to look at the way the whole thing functions, and the risk is very low indeed. What minister will ask? What minister will accept? You have to ask that question, and the reality is that I do not see that happening.
[Translation]
Senator Robichaud: So why include it? If you had refused, would it have jeopardized all the amendments you wanted to make to the constitution of this organization?
[English]
Mr. Bevan: It was a consensus arrangement. People wanted that provision. We felt it was low risk. We got other things that we wanted in terms of some of the elements of the dispute settlement. More particularly, the real things we wanted in relation to the way this process was going forward were changes in the conservation and enforcement measures, and those were further improved in 2007. They were part of the considerations.
The other thing we achieved — and it was not easy — was that the quota keys would remain intact in the event that there was an impasse. Under the two thirds rule, they have to be consciously changed. That was another consideration.
The overall package was accepted by the people who will be living with it for the next number of years. They looked at that particular part of it as something that was worth accepting due to the low risk and what we gained in exchange.
[Translation]
Senator Robichaud: Does it mean that if Canada had refused to include this change it would have endangered the whole agreement? This is what you seem to be saying.
[English]
Mr. Bevan: It would have put the overall arrangement in some jeopardy. I do not know if it would have been the end of it all, but it would have put it in some jeopardy. Clearly, we do not want what we have now in terms of the 1979 convention. That convention is totally dysfunctional in its practice and use. Its governance resulted in the outcomes we saw in the late 1980s and early 1990s, and we want to move away from it.
There are many positive things to say about this new convention, rather than focusing on what is not perfect in someone's mind or the possible problems. With respect to the overall functioning of the new convention, we will see lots of pressure put on states to deal with disputes, to comply and to ensure that their fishing practices are sustainable. We have seen that pressure bear fruit in terms of what is going on in the NAFO regulatory area as we speak.
[Translation]
Senator Robichaud: I can see I will not be able to convince you of the dangers I see in this article. The concerns of our previous witnesses have been ignored, who are recognized experts in this area, so much so that a briefing was offered to them, while refusing the participation of a fourth member. I find this awful on the part of the department. You say it was not the minister but the department who refused?
[English]
Mr. Bevan: That is correct, yes.
[Translation]
Senator Robichaud: This is terrible because these people wanted this briefing, they had good intentions. It would have been beneficial to listen to their concerns, but it is now too late and it is unfortunate.
You said that the minister had met with the ministers of Spain and Portugal and other countries and that they agreed with these recommendations for change.
Mr. Bevan: The minister met the ministers of Spain and Portugal but it was to discuss the overfishing and its elimination. This was the purpose of these meetings and they obviously produced results.
Senator Robichaud: What sort of results?
[English]
Mr. Bevan: The Spanish and Portuguese ministers are the ones who had to shut the fisheries early. They shut them down three and a half months early in order to prevent overfishing.
[Translation]
Senator Robichaud: Were we compelled to accept article 6(10) as a result of these discussions?
[English]
Mr. Bevan: No, it was not part of the discussions, as far as I am aware. The objective was to deal with the turbot and to deal with the level of catch and to stop the overfishing of the EU quota. That was the objective, and the results have achieved it. There was no negotiation at that point. By that time, it had been fairly well established in other meetings. We had discussions prior to the minister's visits that were focused on overfishing. We had also had many discussions with other parties on the text. When we went to Lisbon, it was not a blank sheet of paper, as you can appreciate. These things have to be negotiated in advance, and there were only the adjustments to take care of. In Lisbon, we got some of the changes we wanted in terms of guarantees that the quotas would remain in place in the event of an impasse and the failure of a two-thirds vote to be achieved. That is what Lisbon was about. There was no exchange of words like this.
Again, it was not the EU alone because all the other contracting parties were there seeking this wording — Norway, Iceland, Denmark in respect of the Faroe Islands, St. Pierre and Miquelon, and the U.S. Legal experts accepted the wording as an insignificant risk to sovereignty inside the EEZ. That is their view. We have a different view expressed by your previous witnesses. Their words, on paper, are not reflective of what is in practice. Certainly, they are not reflective of the views held by other contracting parties who are coastal states.
[Translation]
Senator Robichaud: You say it is not very significant to open the door in this fashion. Do you not believe that with such a change, in a negotiation about a quota reduction outside the zone, we might be led to agree to open this door?
[English]
Mr. Bevan: I do not believe that to be a significant risk. I would point out that the risks we ran in 1979 were much greater. We were so fixated on putting an iron wall around our EEZ at the time that we constructed a disastrous convention. We were so fixated on it that we did not want any possibility of anything applying inside the zone. So what did we do? We were determined not to have a dispute settlement because if we did, it might apply inside the zone. We allowed ourselves to object unilaterally to ensure that we could do whatever we wanted to do inside our zone. We ensured that those things were in place and that we had a governance structure that essentially guaranteed the outcome that we got, which was a disaster.
Our fixation today is on sustainable fisheries. I do not think the risk to our sovereignty is significant. The legal experts from coastal states around the world who will be living with this decision did not think it was significant. We did not feel that we gave up anything in terms of our EEZ and sovereignty. This time we focused on sustainable fisheries based on a precautionary approach, ecosystem-based management and scientific advice. We focused on compliance, good monitoring control, surveillance and followup. Not dealing with those elements in 1979 caused the disastrous outcomes that we experienced. We expect a better outcome this time.
Senator Cowan: Mr. Bevan, you mentioned that Mr. McCurdy's letter arrived today. Could you provide a copy of that letter to the clerk for circulation to the committee?
Mr. Bevan: I could do that tomorrow because I do not have it with me this evening.
Senator Cowan: I understand, thank you. I will move to article VI, paragraph 10. You explained why you cannot conceive of a time when Canada would invite NAFO to exercise some control within our 200-mile limit. Is that what you are saying?
Mr. Bevan: It is hard for me to envisage that happening. That wording exists, as I mentioned earlier, in other conventions but in practice has not applied there either.
Senator Cowan: If you cannot conceive of a way or a circumstance in which we would invite NAFO into our jurisdiction, can you conceive of a circumstance when any other coastal nation would invite NAFO to come in?
Mr. Bevan: If they are looking at protection of a vulnerable marine ecosystem straddling their zone, they might decide that would be a way to make it happen so that it would be easier for them to manage domestically. I do not know whether that is a possibility.
Senator Cowan: If Canada would not find itself in such a circumstance, why would another country find itself in that circumstance?
Mr. Bevan: Perhaps that is why, even though the words exist in other conventions, they have never resulted in anything happening that way. They exist but other nations have yet to ask or to accept.
Senator Cowan: I find that difficult.
I will move to page 8 of the deck that you provided, where you compare old and new. Under the old, your presentation mentions ``No Dispute Settlement Procedure,'' and the right-hand side of the page reads ``Dispute Settlement Procedures with option to submit to compulsory and binding Dispute Settlement Procedures pursuant to UNFSA and UNCLOS.'' At whose option?
Mr. Bevan: The intention was ``to have a go'' there. That was the intention of the wording in the convention. If you are looking for people to find a way out and avoid that —
Senator Cowan: No, no.
Mr. Bevan: The option would belong to the organization. The state that has objected will be under tremendous pressure to resolve those issues.
Senator Cowan: Let us suppose that Canada and Portugal have a dispute. Can Canada exercise its option to have binding dispute resolution, or does it involve Canada and Portugal agreeing to submit to binding arbitration? It would seem to be valuable only if one party to the dispute can reject it. In a highly contentious situation, if I felt I was wrong, I cannot imagine why I would agree to put into the hands of some third party the right to bind me to a solution that I probably would not like.
Mr. Bevan: Your objection is based on the fact that you have been discriminated against or unfairly treated in the first place. You should be able to demonstrate that to the organization in order to justify your objection.
You also should be able to justify the fact that your objection will not create a conservation concern because you have obligations — not just in the convention text but internationally — to not take action that would jeopardize stocks. That has happened in the past.
Senator Cowan: Mr. Bevan, help me with this. Whose option is it?
Mr. Bevan: Both parties have to agree to go that route.
Senator Cowan: It is both parties.
Mr. Bevan: Yes.
Senator Cowan: Unless both parties agree, there is no binding resolution. Is that what you are saying?
Mr. Bevan: There will be binding dispute settlement in our view because you have the UNFSA option.
Senator Cowan: I am suggesting that a dispute has arisen in one of these areas between state A and Canada. Canada says it has been wronged and wants to put it to binding dispute resolution. Can Canada unilaterally force the other party to submit to binding dispute resolution? Yes or no?
Mr. Bevan: You have to go through this process first. If it does not work, then we can take it to UNFSA. That is one case where the parties do not need to agree.
Senator Cowan: That can all be done without waiting for the end of the fishing season.
Mr. Bevan: This process is designed to function relatively quickly. The meetings are held in September and the fishing season starts in January, so we should be able to come to a conclusion before more than three months of the fishing season is underway.
Senator Cowan: If the other party said no, could you get to the point of binding arbitration within the same fishing season?
Mr. Bevan: Yes, within the same fishing season; that is the intention.
Senator Cowan: Can they keep fishing while they are disputing or is fishing suspended?
Mr. Bevan: They can fish under their objection until the dispute is resolved, which would be before long.
Senator Cowan: Suppose it is resolved against the other country.
Mr. Bevan: You are comparing this to nothing. That is what 1979 —
Senator Cowan: Mr. Bevan, nobody is arguing in favour of 1979. Everyone, as the chairman has pointed out several times, acknowledges that the 1979 agreement was flawed. The question is, are these changes reflected in the draft convention the right changes? Should Canada ratify this draft convention, or should it say, as wrong as 1979 was, we can do better? That is the issue.
Mr. Bevan: I will not say that this draft convention is perfect. That would mislead this committee. Clearly, if you were to look at all of these things, you could write the draft more perfectly for our purposes. What we have is a negotiated document and a new kind of context to which it applies. We have real willingness on the part of parties to resolve these issues. We have two outstanding objections in NAFO right now. There is an extraordinary intersessional meeting of the fisheries commission in an attempt to resolve those objections through negotiation. If not, the parties are willing to go through these procedures in order to resolve them. There is no desire to have what happened in the past: outstanding, festering disputes that lead to problems in conservation.
Yes, you could make it perfect and better and you could make improvements. However, what we have here is a total convention designed to have a different kind of governance that will provide a different outcome, one where the parties will be under tremendous pressure to resolve these issues. We will not to see votes happening the way we saw in the past where you had a divided and fractious organization. We have not seen that in the last 12 years. We have had one vote in 12 years, and that proved to be a rather unsatisfactory process for Canada. Most of these RFMOs do not go through that kind of a process.
It could be better, but I will say that we have gone through the overall package exhaustively with our advisers and the people who will live with it, and they have all found it to be the way to go. They have all found that it provides a means by which disputes can be settled. You have the conditions that will allow that to happen, that will allow pressure to be put on the contracting parties to make it happen. That is the reality.
Can someone search for a loophole and find it? Possibly, but will the parties be able to use that loophole in the context of the overall political environment that they are working in with regard to their own politics at home and ENGO pressure to get things on a sustainable level? International politics will involve other parties who will say, ``Get on with it and resolve these disputes.'' That is the context in which the new convention will work.
By looking at the words, they do not say ``fish.'' They reflect the overall attitude and view, but they do not, in themselves, say ``fish.'' What we need to do is change behaviour on the water; that has to be the focus. This convention will help us achieve that change. We have already achieved it through the NAFO conservation and enforcement measures, and we have seen real improvements in compliance that will help turn the trajectory of these thoughts around, I hope.
Senator Cowan: Sounds like an excellent topic for a parliamentary debate.
The Chair: In our questioning we should remember that the stocks we are discussing primarily are off our shores. They are not off the shores of Norway. We began this discussion because of the Nose and Tail of the Grand Banks. That is where the problem has been and is now.
You have said that a lot of countries are happy to have that in there. We do not fish off Norway, but the Icelanders fish on the Nose and Tail of the Grand Banks. I just want to make that point because it is important. This whole discussion began with custodial management versus reform of NAFO. Why custodial management? Because there was rape on the Nose and Tail of the Grand Banks, and our stock has been decimated. A stock that we prosecuted for centuries is gone from Nose and Tail of the Grand Banks. It is gone because we overfished, but others did, too. Not that we overfished the Norwegian stocks and not that we overfished the Icelandic stocks, but our stocks have been overfished. I want us to bear that fact in mind. That is how this discussion began; that is what we are talking about. That is the area in which we are interested. That is why we are asking these questions.
We have not even talked about rebuilding. The issue of rebuilding has not been raised. We have to raise it, too. It is important for us to bear that in mind when we ask our questions.
Senator Adams: You mentioned the two-thirds vote requirement. Can you explain that? Was there more voting with the 1979 NAFO convention? Now we hear that we will have more power to talk to the Europeans about quotas. What does that mean?
Mr. Bevan: With respect to Senator Rompkey's intervention, I was pointing out that Iceland and Norway, in terms of the Eastern Atlantic, have that wording. They are coastal states. In terms of the Western Atlantic, Denmark — in respect of Greenland — St. Pierre and Miquelon, the U.S. and Canada also found that this wording did not cause the kind of angst being expressed.
The Chair: St. Pierre and Miquelon does not have the same risk we do.
Mr. Bevan: I agree.
On the issue of custodial management, the key there is not the wording in the convention, as such. The key is what is going on in the water in terms of detection and non-compliance, response to non-compliance and creation of real deterrence and maintenance of compliance to quotas. That is what is being achieved as we speak through changes to the NAFO conservation and enforcement measures in 2006 and again in 2007, and as a result of our vigilance.
With respect to our quotas and the two-thirds voting requirement, the EU and Canada have over 85 per cent of the quotas. Both of us get one vote. We are both, in a sense, interested in finding a way to protect those quotas, even though we have less than one sixth of the votes. That is one reason why we were looking with interest at the two-thirds vote requirement and the safeguards in the conservation enforcement measures.
Senator Adams: We had the Department of Foreign Affairs involved in the agreement with NAFO. Is that still the case?
Mr. Bevan: Foreign Affairs is still involved.
Senator Adams: Are they still involved with the European Union?
Mr. Bevan: We have support at these meetings from the legal people at the Department of Foreign Affairs and from our mission in Brussels, yes.
Senator Adams: You mentioned some of the flags on foreign ships that you are still concerned about.
Mr. Bevan: Flags of convenience do not come on to the Nose and Tail of the Grand Banks anymore. In the 1990s, action was taken that persuaded them that was a bad way to try to make a living. We arrested vessels and made it clear we would take action against flags of convenience fishing straddling stocks.
In 2006, however, they were fishing on high seas redfish in NAFO area 1F outside the 200-mile limit. That action was not on the straddling stock of importance to Canada; therefore, we did not use C-29 as the means to respond to it. However, it was very important to other contracting parties and prompted a discussion to end that practice by putting in place strong port state controls. That would not relate just to the fishing vessel. Any reefer vessel and vessels providing provisions or fuel would also be subject to the same controls. As a result, those vessels are out of business today.
Senator Hubley: Thank you, Mr. Bevan, for working very hard this evening to answer our questions. I still have a concern, however.
We opened our hearing with three experts from the field who have great expertise. When I look at your ``go forward strategy'' on page 10, there is nothing there telling me when you intend to present it to the Government of Canada as an international treaty. I think Senator Cowan asked the question. I was not sure if you felt this was an international treaty and if you were telling us that perhaps it will not go before the House of Commons. I would like to have an assurance that it will.
Mr. Bevan: It is an international treaty. It is not yet available for consideration by the contracting parties. It has not been through that process. The current president of NAFO has yet to receive the word that it is ready for those kinds of deliberations by the contracting parties.
Is this a significant treaty that would require parliamentary deliberation? That is not my call; that is the government's call. I think you can understand that the people in this room have a view about its significance, but it is not my call to make that determination.
Senator Hubley: You say that it is an international treaty and that it is the government's call? How does come about? Is it the Prime Minister who makes that call?
Mr. Bevan: We do not know how that comes about. It is not tested at this point. Clearly, there will be deliberation by government. The minister will have a view and central agencies will have a view. There will be a discussion. The determination will be made as to whether or not it goes before Parliament.
Senator Hubley: When I hear ``low risk'' or ``insignificant risk,'' I have trouble with those phrases. We have had problems in our fishing industry, as we all know, and I do not like to leave the door open to too many low risks because I do not know what people understand as a low or an insignificant risk. I find that many times those things can turn out to be very detrimental. When will the new convention be going to the Parliament of Canada for consideration?
Mr. Bevan: It cannot go before January.
Senator Hubley: Is January the date you mentioned?
Mr. Bevan: Yes.
I would point out that the low or insignificant risk is relevant to that one clause. I do not want to leave the committee with any suggestion that there is low risk with any fisheries management issues. We are spending a lot of money to know what is going on in the NAFO regulatory area and to have a good idea of compliance rates. We are expending a lot of effort to ensure there is followup.
The reason we are doing that is because there is high risk. People will do whatever it takes to maximize their own benefits. Without significant vigilance and followup, there is a risk that would involve overfishing. That is why we are working with other contracting parties and nations and why we have air surveillance, ships and fishery officers at sea 365 days a year, seven days a week.
Senator Hubley: In January, that will be public knowledge, will it, for most people?
Mr. Bevan: Yes.
Senator Hubley: We will be informed that it has reached that particular stage in its development.
Mr. Bevan: Yes, and it will also be available publicly.
Senator Cochrane: I must tell you that I am nervous about opening the doors to international management inside the 200-mile limit. Does the difference in behaviour in NAFO have more to do with the fact that the stocks are so depressed these days and there are so few fish left? If stocks eventually rebuild, can we anticipate problems in NAFO? By problems, I mean less cooperation from other countries.
Mr. Bevan: We have had yellowtail rebuild. The stock is back to its original state. Greenland halibut is on the rebuilding plan. It is bottoming out in terms of the dip in its abundance, and there are different views on that. Fishermen are seeing tremendous amounts of abundance both inside and outside the zone. Catch per unit of effort is up in all gear types, all over the zone. Science does not view that as a good indicator of abundance, with good reason. That was what happened to the northern cod. There are a lot of indicators in the minds of fishermen that it will start rebuilding.
American plaice is also becoming more difficult to avoid. It is under moratorium, but its abundance is becoming an issue in terms of bycatch. You cannot fish other species without catching it in some significant levels.
Yes, there is a possibility that as quotas go up people will say they want a piece of it. Canada has 97.5 per cent of the yellowtail quota, for example, and people want to get access to it. There has been a debate at NAFO regarding the quota shares. That is why we wanted a two-thirds vote and the protection and why the delegation went along with that. There is concern over those issues.
There will be a debate about quota keys, but I do not think the same thing will happen as in the past; that is, unilateral quotas that jeopardize the rebuilding of stocks. I do not believe that is a risk for the current members.
A more realistic risk is if you had a lot of fish in the Northwest Atlantic, you would have other people show up. I do not believe the convention text would stop that from being a threat. Other external factors would have to be used to respond to the threat. As I mentioned, that would mean port access to markets. It would mean lots of pressure external to NAFO in order to stop that from being a problem.
I do not think NAFO members will take unilateral action, but they might take a run at the quota keys. Having said that, if there were to be a lot of fish in the area and they attracted players from outside the NAFO member states, we would have problems that would have to be dealt with not through the convention but through very strong diplomatic action and strong action on markets and ports.
The Chair: Before I go to Senator Watt, I remind the committee that we heard testimony from Ms. Watson-Wright to the effect that research was going on now to submit a claim on behalf of Canada before 2013 for jurisdiction to the end of the Continental Shelf. We had to prove where the shelf is located. That is another factor we should bear in mind. I am not saying we should wait until 2013. I just throw that in the mix.
Senator Watt: You mentioned that the new convention will become public information and that it is an international treaty. You also mentioned the fact that the contracting parties must agree to the overall package. The other witnesses were concerned about whether the new convention would be made public and how it would be ratified? Will it be ratified by Parliament or will ratification be avoided by way of an Order-in-Council to put it into effect? This is the crux of the issue. This is definitely bothering me because I am not quite sure at the end of the day which route you will decide to adopt. Am I following you?
Mr. Bevan: Yes.
The contracting parties will have the document available presumably in January, at which point they can start the ratification process, which would include Canada. Many of the contracting parties' ratification processes will involve significant government debate processes.
At this point, I cannot tell you what the Government of Canada will do in terms of their decision. They have made some statements about making these things available for debate in Parliament. However, it is not clear to me whether the debate leads to a decision. I believe it does not, but it would inform the Governor-in-Council as to the views of Parliament on a treaty. I do not know what specific process will be followed relevant to the ratification of the NAFO convention in Canada because it is not my decision. That is a new process, and I do not know if this will deemed to be significant. If it is, then it would presumably go for debate that would inform the GIC decision on ratification or not.
Senator Watt: I would imagine the Minister of Fisheries and Oceans will be the one calling the shots at the end of the day. If he feels that it is important enough that there should be public scrutiny on this matter, then he will bring this matter to the attention of Parliament. If it is not — that is, if the package is more important and if you feel that the risk is minimal — then the minister will decide to have it ratified by Order-in-Council.
Mr. Bevan: I am not sure that it will be his decision on his own. He will have a view and some influence, obviously.
Senator Watt: The executive of the government?
Mr. Bevan: The executive of the government would be making that decision, yes.
The Chair: It would have to be a cabinet decision or at least a committee of cabinet. They could refer it to the procedural committee of cabinet, but it would have to be a cabinet decision.
We heard testimony earlier tonight that the Prime Minister had given an assurance that all international treaties would be brought before Parliament. I think we heard testimony earlier tonight. I cannot recall where that came from, but we did hear it.
Senator Watt: One additional issue still bothers me to a certain extent. I tried to listen carefully so as to understand where everyone is coming from. If our sovereignty is at stake, do we have a mechanism within the governing structure such that we have a fall-back position? If a stranger comes into our house, into our territory, that becomes a reality. What mechanism do we have within the governing structure that allows us to say that we have made a mistake? Do we have a safety net?
Mr. Bevan: There are two safety nets. You have to ask for it and you have to vote yes for anything to apply inside the zone. The decision will not affect sovereignty because it is a sovereign decision as to whether or not we want it to apply. Therefore, it does not affect our sovereignty. It is Canada's decision whether we would like to have a measure inside a zone or not. There are two steps. You must ask for it and, after you see it, you have to accept it. That is what is in the new convention. I do not see that being a likely outcome in the foreseeable future. I do not know under what circumstances it would be used. It has not been used where it exists in the Eastern Atlantic, to my knowledge. It is there as a possibility, yes, but in reality it does not seem to be what is happening. Second, it would only apply if we want it and only apply if we vote for it. I do not think it actually represents someone being able to impose their will on us. That is just not realistic.
Looking for potential scenarios where this could happen takes us away from the broader picture. As I said, we are focusing on maintenance of our sovereignty, but also the broader outcome of sustainable fisheries, rebuilding those stocks and having compliance, which is key to the equivalent of custodial management. You see the response of the parties to non-compliance in the form of levying significant fines and achieving, in our estimation, good compliance this year based on what we did last year and on diplomatic efforts and on the response of contracting parties who are responsible for holding their vessels to account for their actions. That is the key. That is what would have saved the stocks in the first place had we been able to achieve that some time ago. Admittedly, it was not just the convention; it was attitudes and putting the fishermen's short-term interests first on the part of everyone. I think we have all learned a bitter lesson and are now looking at changing the international environment.
If we do not want this new convention to go through, there are mechanisms that can be used to stop it. However, I think the serious question is whether or not we want to stick with a convention that has been a proven failure and avoid a new path, a new opportunity to take the steps needed to protect the ecosystem that the fish rely on and to protect the stocks.
Senator Cowan: The Nose and Tail and Flemish Cap are outside the 200-mile limit, correct?
Mr. Bevan: Yes.
Senator Cowan: Suppose some other party to NAFO proposes to do something we do not like on the Nose and Tail or the Flemish Cap and we ask them to stop. The quid pro quo is that they will stop what they are doing, but they want us to allow NAFO to have something within our 200-mile limit. Is not that a conceivable scenario?
Mr. Bevan: That may be a conceivable scenario, but I do not see that actually being a reasonable, expected outcome. I do not think a minister would compromise his authority under the Fisheries Act inside the zone in order to achieve some an outcome outside the zone.
Senator Cowan: What progress is the minister or the Government of Canada achieving in its objective, or does it still have the objective of extending our jurisdiction to the edges of the Continental Shelf, which would include the Nose and Tail and the Flemish Cap?
Mr. Bevan: We are already taking action. We have already made arrests of people fishing sedentary species out there.
Senator Cowan: Is that still the objective of the Government of Canada?
Mr. Bevan: No, because the Government of Canada is relying on the fact that we are achieving the compliance necessary in the NAFO regulatory area as we speak.
Senator Cowan: We have given up on the objective stated in the Conservative campaign platform and are moving toward this convention.
Mr. Bevan: We are achieving the same outcome as they were stating they wanted in their platform, as far as I know. They said they wanted to maintain control on the NAFO regulatory zone the same as it would be in the Canadian zone. That is what they have achieved in terms of the outcome. We have three ships out there, as well as air surveillance. We board vessels and inspect them, and now we have followup where those vessels are punished in the event of non-compliance. That is the result. When the estimates of the catch hit the quota, those fisheries were closed three and a half months earlier than expected by the masters. That is the kind of outcome that would demonstrate that what we have outside the zone in the NAFO regulatory area is as good as what we have inside it.
Senator Cowan: I appreciate your response.
The Chair: Thank you very much, Mr. Bevan, for spending so much time with us this evening and for being so forthcoming with your points of view. We thank you and Ms. Lapointe for that.
I think there is a consensus amongst committee members that we not let this matter sit, that it requires further study. This will likely be our last meeting before we break for Christmas, but Senator Cochrane and I will meet tomorrow in an effort to put before you a further course of action on this subject.
The committee adjourned.