Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 11 - Evidence - October 1, 2009
OTTAWA, Thursday, October 1, 2009
The Standing Senate Committee on Fisheries and Oceans met this day at 10:34 a.m. to study issues relating to the federal government's current and evolving policy framework for managing Canada's fisheries and oceans (topic: proposed amendments to the Northwest Atlantic Fisheries Organization (NAFO) Convention).
Senator Bill Rompkey (Chair) in the chair.
[English]
The Chair: This morning we are dealing with proposed changes to the NAFO convention, the convention of the Northwest Atlantic Fisheries Organization. We have as a witness Mr. Ted L. McDorman, who received a BA from the University of Toronto, but more important, a LL.B. from Dalhousie and even more important, an LLM cum laude from Dalhousie. He was called to the bar of Nova Scotia in 1980. He comes from that part of the country, as do many of us. He is in British Columbia at the moment. He joined the faculty of law in 1985 at the University of Victoria and was promoted to professor in 2001. His teaching areas include public international law, international trade law, international ocean and environmental law and private international law (conflicts of law).
Before we begin, I have another duty, and that is to draw to the attention of the committee that this will be the last meeting for our colleague Senator Cook, and I want to say to her that we are going to miss her knowledge and her passion. She comes from the same part of the country as I do. As a matter of fact, she comes from the same bay, Fortune Bay, which is a far greater bay than most bays we have around the island.
We thank her for her contribution. We will miss her and we wish her bon voyage.
Hon. Senators: Hear, hear!
Senator Cook: Thank you, Mr. Chair. I hope I have brought a sense of balance to your committee. Fisheries was my first one.
Speaking of that word "balance," I have a five-year-old grandchild — as a matter of fact they are three, five and seven — and on Sundays when I am leaving, he says, "I will miss you," so I will miss you.
The Chair: Thank you very much.
Ted L. McDorman, Professor, Faculty of Law, University of Victoria: It is a pleasure to come from the West Coast to be here. In deference to my being from the West Coast and having arrived last night, it is 7:30 in the morning there, and so if there are slips of the tongue and things like that, I will apologize to you in advance.
I am Atlantic Canadian. I am an East Coast boy on the wrong damn coast, in my opinion, but I have been on the West Coast for a while, and one of the difficulties with that is one does not have access and one does not track NAFO on a day-to-day basis. There are things that have happened in NAFO some of the detail of which I am not particularly well versed. I am happy to try to answer questions, but if there are questions of particular types, I will not be able to provide an answer because I just do not have access and have not been tracking.
I have been tracking institutional developments within regional fisheries management organizations more generally. In 2005, I was the keynote speaker at the St. John's meeting, sponsored by the Government of Canada, on looking at state of play of fisheries organizations around the world. My topic was institutional matters that dealt with decision making, dispute settlement, objection procedures, and other such matters.
In preparation for today I have read extensively the treaty, the 2007 Senate report and recent testimony in the House of Commons. Other documents have been made available to me, in particular from the four wise men, as I will call them: Bob Applebaum, Scott Parsons, Earl Wiseman and Bill Rowat. Bob Applebaum is a long-time friend of mine so I have a certain allegiance that goes back many years, although I will disagree with him.
I point out that the committee has expressed its view that the amendments to NAFO in 2007, as they were written, are unacceptable. The recommendation from this committee was to restart negotiations to undertake a number of things, most importantly to have a bigger voice for Canada in the negotiations to do with changes to the NAFO.
We know that the Department of Foreign Affairs, as they are required to do under new procedures recently adopted by the House, have tabled amendments to NAFO and are in the process of ratifying those amendments. The options seem to be twofold. There might be others, but I do not have the vision to see them. One is to adopt the amendments and the ratification will simply go through. The other is to not adopt the amendments, in which case we continue with the old NAFO and try to restart negotiations in one form or another. The reality is that negotiations over the NAFO are never easy. Canada is the only coastal state with the most direct interest because the fish involve us directly. There are 10 or so other countries led by the European Union, and other countries as well, with which we have to negotiate on an even basis. Each country has one single vote, which is troubling but that is the way it is and it will not change.
The European Union, the United States, Iceland and Norway are also involved and have coastal state interests as well. A coastal state is one that has an intense interest in its 200-nautical-mile zone and seeks to protect what is within that zone. The European Union is a coastal state in Europe and Iceland in Iceland, et cetera. They are in a slightly different position perhaps than the Koreans, the Japanese and the Russians, which are distant water fishing nations par excellence that send their fishermen around the world. It is not that the Europeans do not do that but they have an odd kind of mix. There is a degree of balance of interest, within reason, in how these countries approach the NAFO.
Is it realistic to send Canada back to the table with instructions to concede little and to meet all of the goals that Canada should achieve when they come back without meeting those goals? That seems to have been the pattern over the last number of years. We have sent delegations to NAFOs with unrealistic goals only to be shocked when they have not met those goals. It is a difficult situation for government officials. That is their job, and I understand that, but nevertheless it is difficult. Is there a reasonable expectation of a better outcome in the future than what is in the amendments today? I have some thoughts on that but I will stop and go to questions so that I have a better sense of what senators want to know and what I am able to provide. I do not come to this meeting with a preset agenda. I do not represent the Government of Canada, which I am sure they are quite happy about. Although I have read the report of the four wise men, I am not on all fours with their views. I am somewhat independent. Perhaps because I live on the West Coast, I am at a distance from some of the political issues. I have been engaged with the NAFO and have worked with it with other organizations around it; so I am not unfamiliar with the problem.
Mr. Chair, I am open to questions to see of what assistance I can be to the committee.
The Chair: Before going to questions, perhaps we could pass around copies of the particular clauses that merit consideration. On September 28, 2007, after a two-year process, the Northwest Atlantic Fisheries Organization adopted an amendment to the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries. Articles 8 and 9 speak to what the commission shall do in relation to the regulatory area and include such issues as level of fishing, quotas, research, verification and flag state performance. Paragraph 10 of Article VI states:
The Commission may adopt measures on matters set out in paragraphs 8 and 9 concerning an area under national jurisdiction of a Contracting Party, provided that the coastal State in question so requests and the measure receives its affirmative vote.
We should focus on those articles this morning. I am told by the clerk that committee members have copies of them in the notes from the Library of Parliament, Appendix 6. I find the wording contentious.
Senator Robichaud: First, the chair has brought to our attention the contentious wording in sections 8 and 9. Second, we have heard that four former officials with DFO perceive a problem. Third, Premier Danny Williams of Newfoundland and Labrador has a problem with allowing foreign fishers inside the 200-mile zone, which is comparable to giving up sovereignty, if I may say. Is the danger real or should we not even consider it any kind of menace?
Mr. McDorman: I have some views, with some background information. There is reason to be concerned. The wording glares, in particular in isolation. On its face, it is not problematic because Canada controls anything that would happen. One can argue that Canada does that in any case. Whether under a treaty or otherwise, we can always allow someone into our waters and place any conditions on it we care to. This is somewhat similar to that but the Government of Canada, in various comments, has said that it will never use it.
Having said that, I agree with the proposition that the European Union — or other countries — must have wanted that provision in there for some reason. We assume the European Union was behind this although I have no personal knowledge of that, but we will blame the European Union because they are not here to defend themselves.
I do not disagree with that point, but there are a couple of ways of looking at this. It is not a novel provision. The provision exists in other agreements. It exists in the Northeast Atlantic Fisheries Commission agreement, which involves the northeast Atlantic — the European Union, the Russians, the Norwegians, the Icelanders, et cetera. There are provisions that are not exact, but they are very similar, with due deference to my colleague there. You have a phrase in there that the Russians essentially have agreed that the commission can adopt measures into their waters if they agree to it and if they promote it. That is where this wording comes from, that northeast Atlantic agreement.
Because I am concerned about what else we could get — what we could expect if we enter into renegotiations — I looked at the most recent draft agreement, which is taking place in the South Pacific Ocean. I agree that the South Pacific Ocean is not 100 per cent the same; it is a high seas fishery rather than a straddling stock fishery, but it does involve the waters off the coasts of Chile, Ecuador and Peru.
Those of us in the business know that those countries guard their sovereignty in ways that Canada cannot even imagine. They are huge, dominant countries that look after what is happening inside their 200-nautical-mile zones.
In the draft agreement, there are provisions that are very similar to this paragraph 10 in the NAFO agreement. What I might be inclined to draw from that, and I am choosing my words carefully, is that in the context of the South Pacific, which has 20 countries and a reasonable balance between the coastal states and the distant water-fishing states, this may be seen as the norm as to what is taking place now — that this possibility is being accepted or is consistent with what is happening in other organizations.
It does not mean you have to accept this provision, but at least it provides the context. This is not out of line; this is not some fanciful clause. It is consistent with what is going on in other organizations. Others countries that guard their sovereignty as carefully as Canada have not seemed to have a particular problem with this.
The question is how has it been used? I cannot answer that because I did not have time to look at that aspect, or if it has even been used in the other agreements. I suspect it has not been used all that much.
The rationale behind the idea, as far as I can see, is that if you are going to have a straddling stock and you are going to have a fishery inside and out, then the European perspective is that the NAFO should have the possibility of having some influence from the outside in, and there should be some degree of compatibility and influence.
The Canadian perspective, and again it is the Canadian government perspective on that, is that the influence should always go out. That is an oversimplification of a complex concept, but nevertheless we should always be influencing out. There is just a difference of opinion. The interesting part is that the South Pacific agreement tends to indicate that the Canadian argument may not be as widely held as we might have hoped.
The European Union could leverage Canada. I use the European Union, but it could be any other country. I think that is a concern. That view has been expressed by others. The European Union would have to be careful, of course, because what they leverage against Canada, the Russians, Norwegians and Icelanders will leverage against Europe in the northeast Atlantic because they have the same wording. Therefore, the idea of what goes around comes around is a bit of a protection — maybe not perfect, but a bit of a protection.
To summarize, it may be part of a growing trend anyway. Even in a renegotiation, we may not be that successful at getting it removed. I do not know, one never knows, but you can see this clause elsewhere. That may be part of the grand European approach to pushing their view. However, in the South Pacific, they are just one of a series of countries and they were able to get this clause in, so there is something to that.
It is under Canadian control. That has not been given up in any way, shape or form. There may be ways to use it to our advantage too, I suppose. I do not like the clause, for obvious reasons, but I am not sure whether it is a deal breaker. That is the problem I have; I do not think it is a deal breaker.
Canada's fierce attachment to the 200-nautical-mile zone and the fisheries therein is something that is important, something that people like Senator Rompkey and others achieved in the 1970s and 1980s. We are seeing — and I say "we" as someone in my position — a softening of that intense sovereignty because the fish do not pay any attention to it. Therefore, at some point at some level, maybe the government has to be more careful.
We are seeing this somewhat in some of our Canada-U.S. relations, where we had intense sovereignty over our fish. In order to get fishery management measures that make sense, we are having to give a little bit, at least on total allowable catches and things like that.
I do not like the clause, but I am not 100 per cent convinced that it in itself is a deal breaker because I am not sure whether it matters a whole lot, given it is in our control anyway. I appreciate the leverage argument that is been raised by others; there are some who will know what that involves.
The Chair: Could I interrupt? The witness has referred to Bob Applebaum. He considers him a friend and he has raised certain questions. Would the committee agree to call Bob Applebaum to the table to participate in our discussions?
Hon. Senators: Agreed.
The Chair: While he is coming to the table, I will make some comments that come to mind. I do not want to interrupt Senator Robichaud, but I think it is important because Professor McDorman has talked about organizations having influence inside a 200-mile economic zone because of straddling stocks. The opposite can be argued too, which is that the coastal state has an interest outside of 200 miles, particularly when that shelf extends beyond 200 miles. In our case, that is the nose and tail of the Grand Banks.
As a matter of fact, for years and decades, we have been trying to extend that jurisdiction. Indeed, I believe the present government agreed with that. It not only agreed with that, but is at the present time trying very manfully to extend jurisdiction in the Arctic waters.
You can argue that international organizations have interests in extending their jurisdiction inside sovereign waters, but you can also argue that sovereign states are now seeking to extend their jurisdictions beyond what they presently have.
Mr. McDorman: I agree with that although I would word it completely differently.
The Chair: I am only an English teacher; what do I know about words?
Mr. McDorman: I am only a lawyer; I know nothing about words.
The Chair: I interrupted Senator Robichaud. I am sorry.
Senator Robichaud: I am only a senator and I do not know what you are talking about.
There is concern because of what the chair just said; it is the nose and tail straddling stock. We have a history with the European Union and how they dealt with those stocks. Is that not sufficient ground to not give an inch?
Mr. McDorman: If you do not give an inch, you do not get an inch. With the greatest respect to the chair, Canada has little likelihood in the near future of exercising significant national jurisdiction outside of 200 nautical miles. By the way, to the chair, they are not exercising national jurisdiction over the waters in the Arctic beyond 200 nautical miles. That area beyond 200 nautical miles, with the exception of the sea floor and the sedentary species thereon, is still pretty much high seas.
The trick for Canada is how we try to maintain and to rein in our European and other friends, because it is not just the Europeans, given that we have no direct authority out there in the same way as we have within 200 nautical miles. We have a significant interest, as the chair pointed out, and he is 100 per cent correct. We do have a significant interest, but we do not have a lot of leverage when it comes down to negotiation. Everyone at this table, I assume, as senators, has had some experience of negotiating without too much leverage. In this case, we do not have significant leverage. We have some leverage. We have moral advantage, and we have outrage, but we do not have huge leverage over what happens outside 200 miles. We have had tremendous success through people like Bob Applebaum and others and having a NAFO that has had some success, but nowhere near what we as Canadians would hope for.
I am not sure that particularly answers the question, but it is important to understand that the NAFO scenario is not one that we come at with tremendous advantages in our negotiations.
Senator Robichaud: I invite Mr. Applebaum to make comments on what has been said.
Bob Applebaum, as an individual: I agree with Professor McDorman that the leverages we have, if we were starting new negotiations, are not strong. I would not say that we have no leverages at all, but I would say they are not strong. Sure enough, you would have difficulties if you set off on new negotiations gettin the kinds of things we want in terms of extension of our control outside 200 miles. There is no question. These are not easy negotiations.
On the other hand, I would say from my knowledge of what has been going on since the days of the UNFA agreement being negotiated and brought into force through the United Nations that the Canadian government has not really made an effort to go out and get the kinds of things that we want, just to see what it is like. There are ways that this can be pursued. I will not say they will be successful entirely, but there are ways that they can be pursued. I am not aware that any effort has been made to pursue those alternatives.
I would say the starting point for any negotiation to get some improvements outside 200 miles is that we do not in any way weaken our control inside 200 miles. The 200-mile zone is Canada's, and what we should be negotiating about is what happens outside 200 miles, nothing about what goes on inside 200 miles.
Senator Robichaud: Some articles in there would weaken our position inside 200-mile, would they not?
Mr. Applebaum: Yes, they would, senator.
Mr. McDorman: They do, but it is a question of how significant that is. Is it a deal breaker? Your question is, what did we get for it? You do have to look at the balance of what was in this agreement, keeping in mind that the Government of Canada ultimately has the final say on that phrase, so it is a leverage issue. They did not give up anything. They put into a treaty a proposition that is out there any ways, but they have put it in the treaty and it does create a nuanced issue. I would not be as black and white as Mr. Applebaum has been.
Senator Meighen: I am still not clear, Senator Robichaud, on the answer to your question. I believe Professor McDorman said you have to look at the rest of the treaty to find out what we are getting. I do not know what we are getting, perhaps because I have not read the rest of the treaty, but no doubt you have, and perhaps you could tell us.
As well, if this paragraph 10 were not there, what does that change? Why could we not, in response to a proposal with regard to something inside the 200-mile limit, say, "Okay, that is fine. We will let you do that," and then say, "In return, we would like to do something else." In the legal world, you have obiter dictums and stuff like that. Why does this have to be part of the treaty rather than in the preamble or somewhere else?
Mr. McDorman: I personally do not have an answer to that. It probably does not have to be part of the treaty. It appears to be the case that it is coming out of the proposition that the organization and the countries in the organization in NAFO and other organizations like NEFAC want to have the possibility at least of having some compatibility of measures inside and out. We could do that without this provision. My point is really that you could probably do without it, and I would be just as happy if it were not there. Having said that, it is seeming to become a common provision throughout many other agreements. That is not a great justification, but that is what is happening.
My question would be, if we go back to the table, do we have a reasonable expectation of not getting that, and the answer is maybe yes, but what do we give up. If we go back to the table, the starting point, as Mr. Applebaum will agree, is this agreement. "You did not like that. Okay, fine, we will take that out. What will you give us?" I do not mean us as the Europeans but everybody generally. What are we willing to concede? Last time I checked, from this committee's reports and others things I have read, nothing. It puts us in an interesting position.
Senator Meighen: What are we getting?
Mr. McDorman: There is a whole package of things that we allegedly get. The thing I see that is interesting is the dispute settlement process that is there. That was one of the things this committee requested, and the May-Russell- Rowe report wanted it. The objection procedure, which I am sure we will get to, is tighter. We do get things in this agreement. Whether it is enough, I cannot speak to that.
Mr. Applebaum: Mr. Chair, before we get into the next stage Professor McDorman mentioned, I would like to also answer the senator's question. He did not quite get a direct answer to his question. This provision has been put into these proposed amendments by the European Union because in the absence of this provision, if you just have what is now in the NAFO Convention, the NAFO Fisheries Commission has no authority to make any rules inside 200 miles. The original NAFO Convention was designed that way by Canada, which hosted the negotiation meetings and was in control of the negotiations throughout, and one of the first and most important points was that nothing should be in this convention that even hints at the idea that there would be international management inside 200 miles. The present NAFO Convention says that NAFO makes rules outside 200 miles.
To get what the EU wants, the ability of NAFO to make rules inside 200, they had to put a clear provision into the amendments, which they have, which says, as you know, that Canada can request it. If Canada requests it, the fisheries commission has the authority to make management decisions inside 200 miles.
It is important to note where we started from, and no preambular word would do it. The only way that NAFO can have the authority to make decisions that apply inside 200 miles is through this new request clause. I will add two other points: When the original NAFO Convention was being negotiated right after the 200-mile zone was created, if anyone had dreamed of including such a provision — and no one did, even the foreign fishing countries — they would have been laughed out of the room. I was involved in those negotiations, albeit as a fairly junior member. It was an inconceivable idea, having just established the 200-mile zone, to put ourselves in a situation whereby we could request NAFO to do what the previous organization, ICNAF, the International Convention for the Northwest Atlantic Fisheries, did, that is to manage inside 200 miles. It was a nonstarter then and that is why it is amazing that, suddenly, it was not only a starter but actually in the drafts during the negotiations.
Professor McDorman talked about another point if we were to restart the negotiations. I do not agree, and I have been negotiating these things for a long time. If the Canadian government were to take the stand that this is a bad treaty and that we have to start from scratch with the NAFO Convention as it is written, we would have to determine what to do to amend it so that it becomes a stronger conservation convention for rules outside 200 miles. We do not have to give up this or forget that or whatever.
Instead, we have to negotiate whether we keep it outside 200 miles, and then we will keep it outside 200 miles. Those were the points I wanted to raise.
Senator Cook: I do not pretend to understand so you will have to be patient with my questions. I do know that the people of my province, Newfoundland and Labrador, are very uneasy about this proposal. What preoccupies by mind is that the Government of Newfoundland and Labrador said not to worry because we will never use it. Then, why is it there? If we will never use it, why put it there?
Another concern of mine is that two years ago a group of people met and decided on this provision. Presumably there were delegates from Newfoundland and Labrador involved in the negotiations but I do not know for certain. Now, two years later, the Government of Canada is being asked to ratify a decision that was taken two years ago, and no one seems to have heard about it. As well, we require three-quarters of the contracting parties. If Canada is just getting around to ratifying this now, I would like to know how many other countries have ratified it to date?
Another concern I have is the regulatory quota. Last week we heard that a quota for cod had been given to a country other than Canada for 5,000 tonnes of cod on the Flemish Cap. I do not know which country or whether it is open to Canadians because I have not pursued the matter. I do know the Flemish Cap has been opened and, from the time I was a child, it was a lucrative fishing ground outside the zone.
I am also concerned about the boundaries of the NAFO regulatory area. Currently, the map goes halfway out the Davis Strait. Is there anything in these discussions that will allow the NAFO to move those lines in the future? We know that there is a turbot fishery in areas OA and OB. I will leave you to try to sort me out on those concerns.
Mr. McDorman: Senator Cook, thank you for those questions.
On your first question, I can suggest only that, as seen in other agreements, it is becoming part of what is included. Other countries that have equally big concerns about sovereignty do not seem to find it as problematic, or at least they have accepted it. That is not to say it is a good thing or something that we wish were not in place. Is it a deal breaker in terms of what else is in this agreement? If we want it removed, then we have to renegotiate. I respect the fact that Mr. Applebaum has been a negotiator for a much longer time than I, nevertheless, I understand a bit of the negotiation dynamics. I am not sure that it is as clear as beginning over with a clean slate. We have to look at all other agreements, so there is no clear answer to your question on that.
I do not know how much information on this agreement has been made available. I know that Newfoundlanders were involved in the negotiation but not at what level. I read Mr. McCurdy's and Mr. Andrew's testimony before the standing committee of the House of Commons, and I found them to be persuasive. They are both Newfoundlanders and were both involved in the negotiations. They have a less legalistic and perhaps less "English-teacher" way of explaining some of these measures. I do not know what information was available.
As well, I do not know who else has ratified the amendment to the NAFO Convention. I strongly suspect that Canada wants to be the first because, if not, what is the point of anyone else going through the process? That is a nice way to put it. Our processes to ratification are relatively straight forward compared to the Europeans. They do not want to even think about this amendment, I assume without truly knowing.
From what I have read in the newspapers and in one or two other areas, I understand that the quota for cod on the Flemish Cap is consistent with the NAFO trigger, such that when the stock recovered to a certain degree, a quota would be possible. That was part of the arrangements in place. Therefore, there must have been a sufficient recovery of the cod stock to trigger the quota issuance. The quota mentioned is 5,000 tonnes, but I do not know the number. The unmentioned country has received a smaller portion of that because the major portion would go to Canada, although we may choose not to fish it. While the total allowable catch is X, the portion to the Europeans is considerably smaller than the portion to Canada.
The NAFO boundaries that you mentioned, senator, are statistical only and are for management purposes. They have no other importance other than for statistical purposes.
Mr. Applebaum: The provision is in place because the EU insisted on it. They have a purpose in that they expect to find advantages from it; otherwise there would be no reason for it.
Who else has ratified? Norway has ratified. I have been told that indirectly, as I have been told most things, but it is my understanding that Norway is the only country that has ratified it so far.
In regard to the Flemish Cap allocations, again my knowledge is indirect, but I believe Canada has an allocation on the Flemish Cap cod that has just been opened up with the TAC. It is not directly related to everything we are talking about here, but my information is that NAFO has put in a TAC for cod that is well above what the NAFO scientific council advised it should be. NAFO now has started again to disregard scientific advice and put in TACs higher than what is required for conservation.
The Chair: Is there not a pattern there? Is that not historically true of the EU that they have exceeded the scientific advice on quotas?
Mr. Applebaum: There is a slight difference here. In the past, the EU has asked for and demanded higher TACS and ignored the quotas that were decided. They have decided to set their own quotas, which were much higher and would bring catches much higher than the recommended TACS, and then overfished those quotas themselves by hundreds of thousands of tonnes. That is the history.
However, in NAFO during the time I was there — I retired in 1996 — I do not know if there was a single example, but certainly it would have been very rare for NAFO to adopt a total allowable catch limit that was higher than the scientific council recommended.
I do not know what has happened since 1996, but this particular one I do know about. There have been two TACs that have been adopted this year, Greenland halibut and Flemish Cap cod, which are well above what was recommended by the scientific council. Those were the ICNAF days before the 200-mile zone, when it was regular for TACs to be adopted higher than recommended by the scientists.
On the final question from Senator Cook, just as Mr. McDorman said, those divisions in the NAFO map, the grid, are for not just statistical purposes but management purposes. They have nothing to do with 200-mile limits. NAFO cannot adjust the outer limit of anyone's 200-mile zone.
To change them would require an amendment to the convention. As I understand it, the scientists would conclude that to manage this area properly, this line should be a little further this way or that way, and that would be a better delineation of where the stocks are. Then that would go through the amendment process and you would amend the grid.
It has not been amended for, I think, the entire life of NAFO. Therefore, I do not see that happening; but if it did, it would have nothing to do with 200-mile limits. They stay the same.
Senator Cook: Would NAFO have the regulatory powers to move that line?
Mr. Applebaum: No, not without a change to the annex. These are lines that have nothing to do with the 200-mile limit. They are the NAFO management lines. They would not be able to do it without a change to the convention, which would change the annex and then you would have different lines. That is how I understand it. I would have to check; but in any event, it would require a major vote, a major change in the system to change those lines.
Senator Cook: You have to understand my preoccupation with this. One day there was a cod moratorium and 30,000 people in my province, our young working people, had to leave. We will find them in Tumbler Ridge in Alberta and wherever.
You know how crucial this change is for people who live by the sea and have always gotten a living from the sea. It makes us feel vulnerable once again. What is the worth of the 200-mile limit that we fought so hard for if we are going to be nice and all fish in the same pot again?
I do not understand why we have it there and say "Don't worry, we will not use it." That is what the present government is saying but what about successive governments? If it is there, you are able to use it. That is my preoccupation.
Senator Manning: I echo the words of Senator Cook. I do not believe for a second that I have as much knowledge as both of you gentlemen have with this particular piece of information, but I have some questions.
Just to reiterate what Senator Cook touched on, I live in the small fishing community of St. Brides in Placentia Bay, Newfoundland and Labrador. I live about a mile or a kilometre and a half from the fish plant that back in the 1980s employed about 250 people in our community of 600. Following the cod moratorium in 1992, the fish plant closed. It is a shell in our community now and the population has dwindled to half of what we had.
Back when the 200-mile limit was introduced, there was great hurray in our neck of the woods for the simple reason it was going to save our fishery and be there for generations to come. I have a problem understanding why, after so many years of the 200-mile limit, we seem to be in rougher shape today in regard to our fishery than we were prior to 1992.
I know that Mr. Applebaum was involved in negotiations. My first question is what are we gaining as a country from the new NAFO Convention that they are asking us to ratify that we did not have in the last NAFO Convention?
The purpose of any negotiation on all sides is to gain something. I listened to Professor McDorman say that you cannot take an inch unless you are willing to give an inch; that is what negotiations are — we give and take. Can someone enlighten me on what we have gained with this new convention that is on the table that we did not have prior to it?
Mr. McDorman: I am a little uncomfortable being put in the position of defending something that is the Government of Canada's position to defend.
Senator Manning: What do you see as the gain?
Mr. McDorman: That is a better way to put it, thank you. As I understand it, the two major things we have gained were things that were largely requested and promoted by this committee and by the May-Russell-Rowe report from 2005.
The first of those two things is binding dispute settlement. Mr. Applebaum and I will largely agree that may not be particularly important in the grand scheme of things, but Canada wanted binding dispute settlement and we have it now. It is a tortuous system to go through and there are lots of lawyers involved but we did get that. That is one thing.
The other thing that was achieved in the negotiation, at least arguably to the best of what could be gotten, was addressing concerns about the objection procedure. As you know, the NAFO objection procedure was wide open, which basically allows any country for any reason to opt out of a decision of the NAFO. As an aside, it is curious that was actually a Canadian-requested provision.
What has occurred is a constriction on the objection procedure. One can debate whether it is constricted enough — clearly the objection procedure continues to exist in the agreement in the amendment. However, I would argue there is a significant constriction. Whether that is positive enough I do not know, but there is restriction on how countries can use that objection procedure.
Those are the two big provisions, although there are probably some other things that are non-institutional. I am just looking at institutional matters. Whether those were enough to balance off the negatives, I do not know; but those are the provisions that would be put forward principally.
The other thing I have read in some of the press releases, and I have not worked this through myself, is the protection of the allocation arrangements that are there so that Canada gets a very large allocation of whatever the TAC is. I am not sure whether that was on the negotiating table or whether that was even in discussion. I do not know that, but that is what some of the public information suggests. When there is an allocation for cod on the Flemish Cap, a large percentage of that will go to Canada and only a small percentage will go to the Europeans in this particular fishery. That varies from fishery to fishery, and Mr. Applebaum knows much more about that than I.
The question is, do you expect to do better next time around? All the RFMOs now have a dispute settlement provision that is binding. It varies in terms of how tortuous it is to get to, but whether the objection procedure would be better or worse, I cannot speculate. I have thoughts, but cannot speculate.
Those are the two big things. Is that worth the negatives? Did we get enough? At the end of the day, holding my breath and turning blue and a few other things, I have to think that maybe the answer is yes and maybe this is what we have to go with. We go with it and see how it works and then we go back, because the alternative does not appeal to me. I certainly would not want to go back to the people in Newfoundland and say, "I am sorry, but we have made the effort." This effort may have been bad, and maybe it was really the Foreign Affairs Department selling out the fisheries all the time, as I overheard earlier. That aside, I am not sure I really want to go back to the people in Newfoundland and say that we have to start again and meanwhile, the old rules will continue to apply. It does not appeal to me as an option. Maybe it appeals to someone else.
Senator Manning: At the present time, and maybe Mr. Applebaum can enlighten us on this, we have jurisdiction inside the 200-mile limit. With this new convention now and this provision, do we still control, in your view, inside the 200-mile limit? In the past, foreign vessels have fished inside the 200-mile limit under agreements with Canada. There are different species and trade-offs and so on and so forth. That has been done in the past, but Canada had to agree in order for any foreign vessel to come inside the 200-mile limit. Under this new convention, would that not be the same? Does Canada not still have to agree before anyone comes inside our 200-mile limit? Do we still have sovereignty inside the 200-mile limit?
Mr. McDorman: Yes. Mr. Applebaum and I can agree the answer to that is yes.
Mr. Applebaum: Yes, the answer is that we continue to have sovereignty inside the 200-mile limit. Yes, we continue to have the say on whether any other foreign fishing vessel is allowed to fish inside our zone. That has not changed. The question is what has changed with this new amendment, and what has changed under the new amendment is an opening to the possibility that international management will apply in the future inside 200 miles. That is the change.
Senator Manning: Is that not there to a point today? Can any country in the world come and negotiate with Canada today about fishing inside the 200-mile limit? Could the European Union, which has 27 countries, come over and negotiate with Canada about fishing inside the 200-mile limit under the convention that is in place today?
Mr. McDorman: Yes, they can.
Senator Manning: And they would be able to do after this convention, if it is ratified?
Mr. McDorman: Yes, but there is force in what Mr. Applebaum said in that it does change the balance a little bit because there is a treaty right you could actually rest on for purposes of the management measure. I agree with Mr. Applebaum's proposition that there is a slight change, but Canada still retains sovereignty. We do have to agree, and that will not change. Even if we get rid of this agreement, countries could still ask. We do not usually accept, we being Canada.
Senator Manning: But they still have to ask. They cannot just come into the 200-mile limit.
Mr. McDorman: That is correct. That does not change.
Senator Manning: Am I missing something here? I go back to Senator Cook's comments about the people in Newfoundland and Labrador, and I have heard a fair bit myself from people who are concerned about this provision. On the other side, we have the president of the fisherman's union in Newfoundland and Labrador, Earle McCurdy, agreeing with this. He represents all the fishermen and all the plant workers in Newfoundland and Labrador, and he believes this is not perfect but that it is an improvement over what we already have. I understand fully the comments from Mr. Applebaum and others, and I have read them all, so it is difficult when the president of the union comes before us on another issue, and we all agree it is wonderful. Then we have discussions on this issue and, with all due respect to the opposition, they now say that the government is not stepping up to the plate here. The person who represents every fisher and every plant worker in Newfoundland and Labrador says that this is at least a step forward. As a senator, I would have a hard time arguing with a person who has the experience that he would have on this.
Mr. Applebaum: Senator, I think I can clarify this issue. The issue that we are talking about is not who gets to fish inside the 200-mile zone. Canada decides who gets to fish inside 200 miles under the current rules and, with this slight caveat about how things can work under the new rules, probably under the new rules too. The issue is who manages inside 200 miles. Is it Canada that sets all the rules for fishing inside 200 miles by Canadians or whoever? Right now, as far as I know, it is only Canadians, and probably that will continue in the future, but who knows. It is not the issue of who fishes inside but who manages inside.
Under the current NAFO convention, Canada is the only management authority inside 200 miles. NAFO rules do not apply and cannot apply inside 200 miles. Under these proposed amendments, it is open, if Canada requests it, for a NAFO management rule to apply inside 200 miles.
For example, right now, outside 200 miles, there is a reciprocal inspection system so that Canada and other countries can inspect each other's boats. Inside the Canadian zone, there is no foreign inspection of Canadian vessels and it is strictly Canadian inspectors who board Canadian vessels. Under the new provision, with a request, you could end up with a system where foreigners come inside the 200-mile zone to inspect Canadian vessels. As part of an overall package you could have a conservation package for TACs, quotas and everything, whereby the international organization's system of reciprocal enforcement apply inside 200 miles. Canada would have to request it. The question is how such a proposal could be manoeuvred, but it could be manoeuvred. That is the point we are talking about: management inside 200 miles. Who does it, the international authority or Canada or both together?
Senator Manning: I can understand what you are saying, but every time you say that, you follow with "if Canada requests it." Canada would have to request a foreign nation to come in and monitor our fishing vessels. Canada would have to request a foreign nation to come in and participate in the fishery inside the 200-mile limit.
Getting back to Professor McDorman, as I understand it, this clause was put in there in order to bring to the table some of the major concerns that Canada has had in the past in regard to the binding dispute settlement and the objection procedure. However, it still comes back to the fact that no one can come inside our 200-mile limit unless we request it or allow it, which I would find strange for any government to do.
Mr. McDorman: That is right.
Senator Manning: I am at a loss. Maybe I am missing something. Our history shows we have negotiated with foreign countries for our fish inside the 200-mile limit in order to build factories in other parts of Canada. In order to have a car plant in some part of Ontario, we forgo some fish inside the 200-mile limit. It has been going on for years to our detriment, I would say, in Newfoundland and Labrador. Some may argue that point.
The fact is that no one can come inside our 200 mile limit unless we request or allow it. That has not changed with this negotiation, in my view.
Mr. McDorman: That is right.
Mr. Applebaum: I am sorry to take so much time away from the lead speaker here, but I will respond to the question.
Professor McDorman spoke earlier of leverage. If you put this question in its simple form, as you did, senator, why would Canada request foreigners to come in and inspect Canadian vessels? Of course, you would not request that to happen. I mean, you could request it for individual foreign vessels without any kind of change to the rules, but we would not.
Let me give you a scenario, one of a number of possible scenarios, of something that could happen easily under this proposed new amendment about the Canadian request. It is a hypothetical example: Greenland halibut scientists recommend some year in the future that the TAC come down from, let us say 20,000, to 10,000 tonnes. The Canadian delegation goes to the NAFO meeting and says, "We are insisting that this come down to 10,000 tonnes." The EU people on the side, or however they do it, might say, "You know, we can do that. We can agree with you and let this TAC come down to 10,000 tonnes, but we will do it only as part of a package where you make the request for the NAFO joint international enforcement scheme to apply to Greenland halibut inside 200 miles because we do not trust you guys. How do we know that your inspectors are doing the right job? We want our own vessels to come in and double check you guys and check inside 200. So if you want the TAC to come down, you have to make this request. If you do not want to make this request, that is fine too, but we will keep the TAC up at 20,000 tonnes.
Now, which country is getting in the way of conservation here? They would be able to say: "Is it we who are happy as part of a package to bring the TAC down, or is it Canada that stands in the way of bringing the TAC down and, therefore, it will stay up?"
That is the kind of leverage — a totally hypothetical example, but there are others as well — that is open to the European Union with this request clause.
Senator Manning: I understand.
I will give an example that is not hypothetical. A few years ago we brought the Spanish trawler Estai into St. John's. Maybe you were in the department at that time and maybe involved in that a bit. We were going to do everything under the sun, and a few weeks after, the Estai sails out of St. John's Harbour, we fly home the crew members and we pay for the product that was on the boat. Then we agreed that from then on if the boats are caught outside overfishing, they will go back to their home ports and their own people will inspect them.
My only concern is inside the 200-mile limit. I understand what you are saying about outside the 200-mile limit. Our jurisdiction rests inside the 200-mile limit. Again, any government can turn around tomorrow. You do not need this provision to negotiate inside the 200-mile limit. You can sit down today and negotiate a deal that includes fish product inside the 200-mile limit with a foreign nation. Am I correct on that? That does not change.
Yes, we may be better off if this provision was not there, but I am hearing Professor McDorman this morning. My concern is the same as the concerns we have had as a committee here, as the department and the government, as well as previous governments in regard to the dispute settlement provisions and others. Would we have those provisions as part of this ratification or new convention if we did not have this provision in there? I know that is a loaded question that no one can answer.
Mr. McDorman: That I cannot answer because it was not part of the negotiation, and I do not know how closely tied that provision was to the other provisions. All I was doing is looking at the balances. This is something that Canada clearly has a problem with, but there are other things that, at least, the Government of Canada has trumpeted as being positive developments, and I think some are. Whether they are exactly tied in the way you have articulated I do not know; sorry.
Senator Patterson: I am new to this committee and happy to be part of it. I am puzzled about the different viewpoints that have been expressed by other senators. Has the committee heard from the government about why it is putting this position forward and, as was just asked, what is the background? Why did we agree to put in this provision?
There was reference to hearings in the House of Commons committee. Are those concluded, and did that committee take a position on this question?
The Chair: Regarding the second part of your question, my understanding is that the House of Commons Fisheries Committee is studying it currently. They have not finished their examination of the question.
With regard to your first question, we heard from Mr. Bevin who was the assistant deputy minister at that time. He was the lead Canadian in the negotiations on the convention, and so I hope that answers the question.
Senator Hubley: It is a morning of questions to clarify matters. I would like to go back to Mr. Applebaum's scenario that he gave on behalf of the halibut, just as an example. Canada was requesting, I think, the TAC be lowered from 20,000 tonnes to 10,000 tonnes. That then becomes a debate. I will use the EU as an example, and while they may agree to do that, they may make further provisions.
What frustrates me is that the scientific evidence could be presented and probably should be presented, but I see a political structure to this and not necessarily a conservation structure. What is your comment on that?
Mr. Applebaum: As far as I can see, you are perfectly right. One of the great problems in NAFO, as it is presently constituted, is keeping that political element out, and you can never exclude it completely. We have already had the example this year where the conservation proposals have not been adopted by NAFO. How to structure the organization to minimize the political element to maximize the situations where the scientific advice will be followed is one of the issues that should be dealt with in a new negotiation for new amendments to the convention. It is a fundamental question. This point about the request clause adds to the political side and adds the political element that gets into the discussion of what the total allowable catch limit should be.
As an example, if you were to start these negotiations afresh and you had ideas to bring forward to the table, one of them might be that, when there is scientific council advice, in order to overrule the scientific advice, you would need some sort of weighted majority of three quarters, or something like that, to protect the scientific advice.
I do not know, but I do not think that anyone on the Canadian side — or any other delegation at these negotiations to ostensibly strengthen NAFO — came forward with any kind of proposal like that. Certainly they have not shown up in any drafts that I saw, or in the final version. That is just one example of how you might, in starting new negotiations, try to deal with these kinds of questions of strengthening the conservation work of NAFO and not weakening it.
Senator Hubley: The EU was behind this inclusion. Can you give me a scenario, looking into the future, of what their intentions might be? What would be their ability to have NAFO change its management plans within a certain area that would benefit them but not necessarily the country, the coastal zone?
Mr. Applebaum: These are hypothetical scenarios, and I expect the EU people have their own, much better hypothetical scenarios of how to use this provision in the future. I just gave you one simple example, and I will try to expand from that simple example.
This amendment produces a loophole in the current NAFO convention, a loophole for NAFO management inside 200 miles. If the EU succeeded in this one simple example that I gave, and if the proposal were presented in the right way, it could be made to look very interesting and okay. After all, it is in favour of conservation. You now have EU vessels inspecting Canadian vessels inside 200 miles. Now you are through the hole, once. Next year, or maybe two years down the line, why would the EU people not say — although they would want to be careful about this, since it is incremental — since we have all agreed there is international inspection inside 200 miles, and this is a NAFO rule that now applies inside your zone, whereas it never used to apply, does it really matter where they fish? After all, why should EU vessels not be able to fish their quotas inside the 200-mile zone? It is the same quota from the same stock. By the way, we will agree to the current proposed lowering of the TAC the scientists suggest, if you will go along with this proposal. And what is wrong with it?
The people around the table might very well be prepared to say: Well, we have already agreed last year to let them have the reciprocal enforcement inside 200 miles. What is wrong with having them fish inside 200 miles as well?
That is one example, and we could probably have many more.
Mr. McDorman: There is some validity in the argument of the loophole, which is a phrase I hope does not catch on. I am not diminishing that argument. I merely point out that loopholes do exist in other agreements that other countries have adopted, which have equally as strong concerns about sovereignty as we have and seem to have been able to get past it, partly because, as Senator Manning suggested, ultimately the decision is Canadian.
If you come to my international law class, the only thing you ever learn is that what goes around comes around. That means that what the Europeans do to the Canadians, the Russians, Norwegians and Icelanders will do to the Europeans on the NEAFC side. They have to be careful because the same argument can be used against them, and that is a problem. I am not sure how that plays into the mix, but it is important to understand how these things work.
With regard to the conservation issue, I have looked at the issue of the relationship between science and decision making within other regional fisheries management organizations. There is always that political element. There has been very little ability to tie the science directly to an allocation and TAC decision, very little capacity to do that.
I am suggesting that in a renegotiation, yes, there may be some new ideas, and the weighted voting might be interesting, though I do not know whether it has been applied, but I do know that in other organizations they have not been able to do very much. By the way, when they have tried to tie in science, all it has done is pushed the issue down to the scientists, and the scientists become political. You have seen in one or two of the tuna RFMOs that all of a sudden the scientists are taking their government positions on the tax, so they cannot come to an agreement.
There is a political element that will always be there, and to suggest that we can negotiate something that will be better, although one hopes we could, they have not had success with this elsewhere. Canadian negotiators are much better than anyone else — I understand that — but even so, we do have to look at the practice is elsewhere, and there has been very little success on that front.
Mr. Applebaum: Mr. McDorman has referred several times to this being a pattern in other areas of the world. I was going to let it pass, but the last point brought the issue back again. Even if this is a pattern in other areas of the world, for whatever reasons apply, it does not necessarily mean that we should make that pattern fit here. I do not see the relevance. That is a non sequitur. In fact, in the old days, when we got NAFO going, we were the leaders setting the patterns for the future and we were not the people taking the patterns from other areas.
Second, those other areas have vastly different fishery situations. I am not sure about the South Pacific, but I know that in the Northeast Atlantic you have a lot of not straddling stocks but stocks that straddle several different 200-mile zones, numbers of stocks that move from one zone to another zone to another zone. There are various situations where you might want to make a request to the international organization to manage those stocks. As well, in the South Pacific there are huge migratory areas for stocks, and the countries there might see that as an advantage.
In the Northwest Atlantic, there is the United States, but they do not have straddling stocks. There is Greenland, but we are not talking about a major straddling stock problem.
We are the target. In the Northwest Atlantic, Canada is the coastal state, as far as any sensible view of the situation is concerned. We are the country that will be pressured to meet that request, and it will not be the United States that has any pressure on it or any interest in the matter.
Senator MacDonald: Professor McDorman, you mentioned that you overheard a statement in regard to the North Atlantic fishery and how it was, over the years, negotiated away by the Department of External Affairs. That was my statement, and I want to say that I have always firmly believed that the fisheries in this country have been sold out over the years by the swizzle stick set in the salons of Brussels and Paris, and elsewhere in Europe, and I think it is something that all governments of all political stripes in this country have been guilty of in the past. I do not think there is any news there, but I do not mind standing behind that statement.
There has been much discussion this morning about the 200-mile limit and how this affects negotiations within the 200-mile limit. However, as we know, fish do swim, and I am curious how this new agreement affects conservation and monitoring in regard to the Nose and Tail of the Grand Banks and the Flemish Cap.
Mr. McDorman: I have not looked at that particular aspect because I have been looking at the institutional parts of the proposed amendment, so I am not sure what changes have been made in the agreement, if any, that go specifically to the management surveillance and those types of issues. There is very little, from my reading of the amendment. Those matters are handled by regulation and by management decisions already in place and will just continue in place. I am not sure there has been any enhancement of that, but I stand to be corrected, as I frequently am.
Mr. Applebaum: I think I can be more precise about it. There is not a single item in the new proposed amendments that will make any change — strengthening is what you are looking for if you were going to get it — in the process of enforcement outside 200 miles. That was one of the issues that should have been on the table, and maybe it was. I do not know, because I was not there. Certainly by the time the first drafts that I saw were showing up, there was not a trace of any effort to change the rules that now apply outside 200 miles, where only the flag states control what their vessels do out there.
Senator MacDonald: I am of the opinion that, if you do not deal with the conservation side of the fishery, so many things are for naught.
One of the concerns I have is in regard to changing the voting system within NAFO from a simple majority to a two- thirds majority. My impression is that it would make agreements on conservation more difficult to achieve. I am curious about the opinions from both of you gentlemen in that regard.
Mr. McDorman: I can speak for Mr. Applebaum on this one because I have read it and I have heard it. It makes Canada's position harder to achieve in terms of advancement. The flip side of that, of course, is that it makes it harder to undo measures.
I think Mr. Applebaum is probably right to a point. My perspective is we do not want to emphasize the voting too much. Many things internationally are done by consensus now, overwhelmingly, but voting does take place on sticky issues, on the most difficult issues. I take Mr. Applebaum's point about other organizations. They are different. I am not suggesting they are the same as NAFO. The way these things work, you look at what other organizations do, and more importantly, you look at what is possible. You see the most current view and try and move that way a little in the hope you can get there. Three quarters is the normal voting process in most of the RFMOs out there. I take the point this is not a positive development. I take the same point that has been made by Mr. McCurdy and Mr. Andrews: This may not be the most critical issue on the face of the earth that although it is on the negative side it is not that critical, and I actually agree with that. I think Mr. Applebaum is right, but I do not think that is a deal breaker.
Senator MacDonald: We talk about conservation, total allowable catch and how it is being monitored. I look at the crab industry in Nova Scotia. My hometown is Louisbourg, and there is a large crab industry there. I know many crab fishermen, and many of them also have lobster licences. All the information given to me leads me to believe that we are constantly overlanding and undercounting at the wharf. Fishery officials are there but this is going on. I am sure that if it is going on in Louisbourg it is going on around Atlantic Canada. If we are pointing the finger, we have to practice what we preach. I am told that there is substantial overlanding of quota, that what they are showing and what they are counting are two different things.
Mr. Applebaum: Senator MacDonald, I cannot comment on that and I would not even try to dispute it with you. Enforcement is always a difficult thing. I am not with DFO any more and I will not discuss that subject because it is not what I am here for, but I understand your concern. It is a concern all of us have had over the years.
On the two third's voting point, Mr. McDorman tended to minimize the effect. You said it most clearly when you first said it, and you were dead right. Two thirds voting makes it harder to get strict conservation rules than simple majority voting. I will give you some examples to illustrate because I have been involved in the negotiations in NAFO virtually all my working life, until I retired, 20 years or so of it.
First, consensus, underneath the deals that come through consensus is the understanding of what happens if you do not have consensus, why it goes to a vote. If you are facing a two thirds vote if you do not reach agreement quietly in the back rooms as opposed to a majority vote, you are in a different situation in terms of what the consensus will be. That seems to me pretty obvious.
The other point is, having been involved in the negotiations over the years, the amount of sweat and work that went in to getting simple majorities — and we did year after year in NAFO — was tremendous. It was very difficult to get a serious conservation decision accepted when you had a simple majority. It will be harder to do with a two-thirds majority.
With the numbers now in NAFO, it is only one other, but you say only one other. The word "only" does not help here. One other member that you need to vote for reduction in total allowable catch probably means the reduction will not be as far down as the scientists' recommendation. It will not be as far up as what the other people want, but it will not be as far down. This seems to me, as you started off saying, that this is simple math and a simple understanding.
Senator MacDonald: Although math has never been my strong point.
Mr. Applebaum: This one, two thirds, I think we can all understand.
Mr. McDorman: To add to that, the majority vote is in some respect again tied to the objection procedure. If you tighten the objection procedure then it makes sense the measure you adopt has to have a larger group of people in favour of it. There is a direct relationship there. We have seen that not only in this agreement but in other agreements. We get with one and give a little with the other.
The Chair: Perhaps I could ask for a final summation from each of our guests as to what was gained by Canada in these deliberations. What did we get?
Mr. Applebaum: Mr. McDorman wants me to go first on this. Mr. Chairman, I decline to go first because I do not think we gained anything worthwhile at all, and I think it is up to Mr. McDorman to show us what we have gained to start off by showing what we gained.
Mr. McDorman: I articulated earlier on the institutional side, which is the only side I can really comment on, we did achieve a dispute settlement agreement. There is compulsory dispute settlement. It is torturous; it is long; it is there. As I pointed out earlier, this is something that this committee and others have requested. The amendment has in it an objection procedure that has been tightened, restrained and constrained. It is far from perfect. With the exception of one agreement, every agreement out there has an objection procedure. You will not be able to get rid of it. The best we can do at the moment in negotiation is constrain. Whether this has been constrained sufficiently is a question of discussion and debate. It appears to me it is just as constrained as any other agreement has been able to accomplish. There is some nuance there. Where there is not an objection procedure, there is a consensus requirement which is an equivalent thereto. You have to have an agreement by consensus — no voting — and that is the equivalent to an objection procedure, in my mind any ways.
That was not the mandate of the government but the mandate that has been requested repeatedly by standing committees in their reports, to do something about the objection procedure, and I think they have accomplished something. Have they accomplished enough? It is a balance. I take Mr. Applebaum's point maybe we can do better, but this is an ongoing process; it is a long process. They have done what they can do, and I think at this moment in time this is probably about as good as we can get in the short term. You can always say we can try this and that, but it strikes me this is an improvement on the key issues over the old NAFO, albeit with some concerns.
Mr. Applebaum: Mr. Chair, I am glad to end up on this subject because I wanted to come back to this point about the objection procedure. Mr. McDorman has used the words "it is tightened, "it is restrained" and "it is constrained" and maybe another adjective as well. All of you are free to look at it; it is there in the convention and it is not all that obscure.
I take issue with all these words. It is not tightened, restrained or constrained. Starting off, it is very clear that after a conservation decision has been decided by NAFO, any country can object. It can just object. What now they have to do is add an explanation. They did not have to put an explanation in before; they always did orally at the meetings so everyone new what the explanation was. Now they have to write the explanation out, and now they have to say what they are going to do instead. Back in our history with the EU, they always said what they were going to do instead. They said they would put in their own unilateral quotas and they did. Of course, they ignored them, but that is another point. It is not an insignificant point when you think of how things should be done in trying to strengthen a NAFO convention.
Starting off, anyone can object. The explanation is not a restraint. It is easy to write. I could write it for them. Putting in your own quotas will be higher than what NAFO gave them. That is easy to do as well.
The next step is that NAFO, not an individual state like Canada, complains; NAFO can have a majority vote here to send this objection to a panel procedure. The panel will make a recommendation. The panel will take some time to meet, and take a few months before it reports. The fishing season is going on. They are fishing the way they want to. In the meantime, the panel is going along and doing its thing. The panel finally makes a recommendation to the commission. Let us say the hardest line recommendation they make is that that objection is wrong and it should be removed. It is a recommendation; it is not a decision. It goes to the NAFO commission. The NAFO commission now has to vote on a new decision as to implementing that recommendation. They take the vote with the two thirds system, as opposed to a simple majority, and let us say they agree with this recommendation; they are reinstituting the old TAC quotas; they stand as they were before.
What happens then? The country that objected in the first place is free to lodge another objection. That is the way the system is built. A NAFO decision is open to an objection. The objection has an explanation, and the explanation also includes your own quota. Of course, you could go to another panel procedure again, though the fishing season is well on by that time and there would be no point.
There is nothing in this new convention that would actually produce a binding decision during the fishing season that would overrule an objection. It is just not there. Is that useless? Perhaps I will join with my friend Mr. McDorman. Having a review procedure, having a chance to take issue with an objection, is a good thing. If that was all this amendment was about in this new convention, and you could not do better — I still think you could do better — it would be an improvement. However, the price, the request for management inside 200 miles, the two thirds voting, and other things that are sprinkled through this convention that we do not have time to go through here, in my conclusion, are not worth it.
I will give another example of how you might have produced an objection review procedure that would have had some effect. You could have written a provision — again, Mr. McDorman says it is tough to negotiate, but you do not know until you try — that says that once the NAFO fisheries commission sends the objection to the panel procedure, the quotas decided in the first place stay in place until it goes through the panel procedure process. This provision does not say anything like that. No, the country that lodges an objection is free to fish whatever it wants right up to the end of this procedure, and at the end of the procedure it can lodge another objection and continue to fish whatever it wants. That is what the convention says.
Mr. McDorman: Mr. Applebaum is right. The problem is that every other objection procedure and every other RFMO negotiated by everyone else has the same flaw. That does not make what Mr. Applebaum has said any less important, but no one has been able to negotiate around that. There is one possible exception for the Westernand Central Pacific Fisheries Commission, which is a little bit different, I admit. They have not been able to negotiate around this problem.
If we go back and start again, do we think we can do better when no one else has been able to do better? We can probably make some improvements, but is it worth it? Would we have to retrograde on something? I do not know. The objection procedure continues to exist in every agreement. I think this one is constrained to a point, and I take Mr. Applebaum's point that it is not perfect and has flaws. All the other agreements negotiated by lots of other countries have not been able to solve this puzzle.
The Chair: We have examined it again and no doubt we will keep on examining it. The process is not over. It is in the House of Commons at the present time. My understanding of the procedure is that while the House of Commons can declaim on the question, no vote binding the government is required and that the government can proceed on its own in this case without the consent of Parliament.
The question is still before Parliament and still before us. No doubt we will be meeting again.
Senator Manning: Mr. Chair, I know we had Mr. McCurdy here before.
The Chair: Did we?
Senator Manning: He was not here on this particular issue, but we had some conversation with him around it at the time. I believe it was Mr. Ray Andrews from Newfoundland also. Two of these people are members of the Canadian delegation. I wonder whether we could invite two of them to have a follow-up discussion. They seem to have a different swing to what happened here. I have not talked to Mr. McCurdy myself but I have heard him in the media down home stating he thinks this is a move in the right direction, more or less.
The Chair: I want to check exactly what he said.
Senator Manning: He was a member of NAFO.
The Chair: I know he was. I would want to consult with Senator Cochrane because this meeting is her initiative and she feels strongly about this issue meeting. I would not want to do anything without consulting her.
Senator Manning: We could have a further discussion to what we had this morning. Some of what we have heard this morning from both Mr. Applebaum and Professor McDorman has been enlightening also.
The Chair: Let us discuss it in steering and see where we go from here.
Mr. McDorman: Both Mr. Andrews and Mr. McCurdy spoke before the house standing committee. I read through the transcript before coming here.
The Chair: Thank you for coming. It has been helpful to us.
(The committee adjourned.)