Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 13 - Evidence - December 13, 2012
OTTAWA, Thursday, December 13, 2012
The Standing Senate Committee on Fisheries and Oceans, to which was referred Bill S-13, An Act to amend the Coastal Fisheries Protection Act, met this day at 8 a.m. to give consideration to the bill.
Senator Fabian Manning (Chair) in the chair.
[English]
The Chair: Welcome to this morning's meeting of the Standing Senate Committee on Fisheries and Oceans. My name is Fabian Manning. I am a senator from Newfoundland and Labrador and chair of this committee. Before I give the floor to our witnesses, I would like to invite the members of the committee to introduce themselves.
Senator Oliver: Don Oliver, Nova Scotia.
Senator Raine: Nancy Greene Raine, British Columbia.
Senator Unger: Betty Unger, Alberta.
Senator Poirier: Rose-May Poirier, New Brunswick.
Senator McInnis: Tom McInnis, Nova Scotia.
Senator Harb: Mac Harb, Ontario.
Senator Baker: George Baker, Newfoundland and Labrador.
Senator Hubley: Elizabeth Hubley, Prince Edward Island.
Senator MacDonald: Michael MacDonald, Nova Scotia.
The Chair: It is great to see you all here this morning bright and early. We might change our meeting times forever after this morning.
The committee is starting its study on Bill S-13, An Act to amend the Coastal Fisheries Protection Act. As our first witnesses on the matter, I am pleased to welcome the Honourable Gail Shea, Acting Minister of Fisheries and Oceans, and senior officials from the Department of Fisheries and Oceans.
Minister, I thank you for being here this morning. I understand you have about an hour to spend with us. We are delighted with that. I would ask members of the committee to keep their questions to Bill S-13 short because of time contraints with the minister. If something else comes up, I am sure that we can have the minister back at some time in the new year; or maybe Mr. Ashfield will be back on track by then. We will see.
Minister, please proceed with your opening remarks.
Hon. Gail Shea, P.C., M.P., Acting Minister of Fisheries and Oceans: Thank you and good morning. I will start by wishing all of you a very Merry Christmas and Happy New Year. Certainly, I appreciate being here today as Acting Minister of Fisheries and Oceans, and I wish my colleague, the Honourable Keith Ashfield, a speedy recovery. I appreciate the opportunity to be here to talk about how our government is strengthening Canada's leadership role in combatting illegal fishing.
Before I get started, I would like to introduce DFO officials who are here with me at the table: Acting Deputy Minister David Bevan; Ms. France Pégeot, Senior Assistant Deputy Minister, Strategic Policy; and Mr. Michael Pearson, Director General, International Affairs.
Bill S-13, An Act to amend the Coastal Fisheries Protection Act, was referred to your committee for study. The issues it tackles are of tremendous importance to all of us. Illegal, unreported and unregulated fishing, often referred to as pirate fishing, undermines the livelihoods of legitimate fishermen around the world and has an impact on the conservation and protection of our fisheries. By strengthening the Coastal Fisheries Protection Act, our government is protecting the livelihoods of Canadian fishermen actively working to protect this vital resource and supporting the international fight against pirate fishing.
Pirate fishing is a global problem. It undercuts responsible fishing activities and has consequences on food security, safety at sea, marine environmental protection and stability of prices in some key markets. As a fishing nation, Canada is committed to the fight against it on a global scale. A 2008 study estimated that the economic loss, worldwide, due to pirate fishing ranges from US$10 billion to US$23 billion annually. In addition to the economic damage, it poses serious potential threats to marine ecosystems and fish stocks.
In Canada, our fisheries sector serves as an economic mainstay for rural and coastal communities across our country. The most recent data indicate that Canada's commercial wild capture fisheries, aquaculture, and fish and seafood processing contributed $5.4 billion in total GDP and 71,000 in full-time equivalent employment to the country's economy. Canadian fishermen feel the impacts of pirate fishing, including the depletion of stocks from overfishing, unfair competition with illegal fish products and price fluctuations created by the unpredictable supply that illegal fish products can cause in foreign markets. Therefore, it is essential that we continue to be at the forefront of the fight against threats to our fishery in order to maintain a fair and well-regulated market environment for our high-quality fish and our seafood exports.
The proposed amendments to Canada's Coastal Fisheries Protection Act being studied by this committee will help us to do exactly that. The proposed amendments tabled in the Senate strengthen the Coastal Fisheries Protection Act and represent the next steps in our effort to combat illegal, unreported and unregulated fishing.
Canada is considered a leader in the fight to combat pirate fishing. We can be proud of our already-strong port access regime for foreign fishing vessels. Our system is already strong. For example, a foreign fishing vessel may enter Canadian fisheries waters only if it has applied for and received a licence issued by the Minister of Fisheries and Oceans pursuant to the Coastal Fisheries Protection Regulations. Under these regulations, the minister can issue the licence only if the foreign fishing vessel is in compliance with conservation and management measures of a regional fisheries management organization. For example, Canada has agreed to not allow entry to vessels on the Illegal, Unreported and Unregulated, IUU, fishing lists of the Northwest Atlantic Fisheries Organization or the International Commission for the Conservation of Atlantic Tunas. The IUU vessel list, which is the bad list this time of year, represents a key tool for combating pirate fishing globally.
Arrangements have already been undertaken among several regional fisheries management organizations to share their lists so that members can take the necessary action to deny port entry or services to such vessels, thus making IUU fishing increasingly difficult and expensive.
The proposed changes to the Coastal Fisheries Protection Act allow Canada to meet its commitments to the International Port State Measures Agreement, to which we are a party. The proposed amendments set out tougher prohibitions against the importation of illegally caught fish and other living marine organisms.
Some of the most important stipulations in the Port State Measures Agreement include standardizing requirements for the information provided by vessels seeking entry to port, continuing to deny port entry and service to vessels implicated in pirate fishing unless entry is for enforcement purposes, and setting minimum standards for vessel inspections and the training of inspectors.
The proposed amendments clarify and strengthen prohibitions related to the importation of fish or marine plants importation into Canada. Contravention of these provisions would be an offence under the Coastal Fisheries Protection Act, with penalties specified under the act. Monitoring and enforcement would be carried out by Fisheries and Oceans Canada in close collaboration with the Canada Border Services Agency, with a view to minimizing impacts on cross-border trade of fish and seafood products.
Preventing illegally taken fish and seafood products from entering markets is also a priority for Canada's major trading partners. Stronger controls at the border will help maintain our reputation as a responsible fishing nation and trading partner.
The amendments to the Coastal Fisheries Protection Act include a broader definition of ``fishing vessel'' to cover any vessels used for the transshipment of fish or marine plants not previously landed, and tougher prohibitions against the importation of fish, marine plants and seafood products from illegal sources.
To summarize, Mr. Chair, the amendments to the act that are before you will strengthen and clarify Canada's domestic rules and further reinforce our leadership role in the global fight against pirate fishing. I am very happy to be proud of a government that is taking action against this global problem that has an impact on our fisheries here at home.
Thank you, Mr. Chair and senators, and we will be pleased to answer any questions you might have.
The Chair: Thank you for your opening remarks. I want to advise senators that our list is growing quickly. We will try to keep our questions and answers as close to the point as possible.
Senator Hubley: Welcome to you, Acting Minister Shea, and to your colleagues. Thank you for your presentation.
I think this is certainly a very positive thing we are doing this morning, and I know my colleagues may have more pointed questions.
You have suggested that pirate fishing is a global problem and that Canada is in the lead in terms of putting forward preventive measures. Would you share with us some of those programs or negotiations that Canada would have with other countries? If I am on the right track, I think only 23 states have signed on to the Port State Measures Agreement. How will that place Canada in effectiveness for this new legislation?
Ms. Shea: I will defer to officials to comment as well, but Canada takes a leadership role at NAFO. Since we have such a big stake in the fisheries, a lot of the stocks we fish are straddling stocks. We have to protect them outside of our economic zone in order to protect them for our domestic fishery inside our economic zone. Again, they are known as straddling stocks. Infringements have gone way down for illegal fishing from 1998 to 2011. In 1998 we probably had thirteen serious infringements for illegal fishing, and we are now down to one. All the measures we have taken seem to be working as far as combatting illegal fishing. When we combat illegal fishing, this affects everything from markets for our domestic products. If there is a glut of a certain type of fish on the market because of illegal fishing, of course the prices are lower. It has a far-reaching effect.
I can defer to one of my colleagues if they also want to comment about the 23 states that have signed on.
Michael Pearson, Director General, International Affairs, Strategic Policy Sector, Fisheries and Oceans Canada: Thank you, Madam Minister.
To add briefly to the minister's remarks in respect of the Port State Measures Agreement, I think it is 23 or 24 states that have so far signed the agreement. You need 25 states to ratify the agreement in order for it to enter into force. So far, only four have done so. In order for Canada to ratify the agreement — we have already signed it — we need to have this legislation passed by Parliament and then the regulations that are associated with the legislation to be put in place. On that basis, we will be able to ratify the agreement.
The fact that we have signed the agreement along with a number of other states, and have been part of what we call the first group of states that signed the agreement within a year after negotiations were concluded, is a symbol of the leadership that Canada has played in this area. Of course, it is not just with respect to port states. We have activities in other areas of IUU fishing, such as cooperation with other states as flag states, not just as port states, and the responsibilities that go with that. Along with the contributions we make in organizations like NAFO — the minister has already mentioned some of the enforcement work we have done — those things all contribute to our attempts to continue to be a global leader in the fight against pirate fishing.
Senator Baker: Welcome to the witnesses and the acting minister. Certainly, this is an interesting time in Canada for our fishery. I notice the federal government is about to apply to the United Nations for extension of jurisdiction out to 350 miles, as it relates to the ocean floor. These are very exciting times.
I am glad Senator Oliver is here. He is a professor of law, and the one question I have relates to a new section in the act that is being introduced with this amendment, which deals with searching a dwelling place, someone's home.
The old act and the old provisions give a justice of the peace the right to issue a warrant for a place or a car, vehicle, and so on. It gives a justice of the peace or a judge the right to issue certain other warrants under section 18. However, this new act introduces the following:
7.6(1) A justice, as defined in section 2 of the Criminal Code . . .
Various sections of the bill refer to searching a place, a boat, a fishing vessel, forfeiture and seizure. Under section 2 of the Criminal Code, that means a justice of the peace or a provincial court judge. That is how you define the justice, as the professor would agree. However, the new section here introduces searching a dwelling place and restricts the warrant. It says, ``On ex parte application, a justice of the peace may issue the warrant . . . .'' It restricts the issue — the search of a dwelling place — to a justice of the peace.
The professor and Mr. Bevan, who is an expert in law as well, would agree that the reasonable expectation of privacy is the highest in someone's home. Why do we have warrants that can be issued by provincial court judges down here for vessels and so on, and when you get to someone's dwelling place — for the first time it is brought up in this amendment — a justice of the peace can issue the warrant? The justice of the peace in Nova Scotia is different than a justice of the peace in Newfoundland. In Newfoundland, they cannot even marry people. The qualifications are different for each province.
Perhaps Mr. Bevan could turn his mind to it. Is this an error that could be corrected at this stage? I do not know if you need time to have a look at that and perhaps get back to the committee.
Ms. Shea: Senator, we have looked at that issue, and my understanding is that a justice of the peace can issue a warrant to enter a dwelling to verify compliance with the act. They do not have seizure powers. That can only be accomplished by a search warrant that is executed by the DFO but issued by a court judge.
I will ask Mr. Pearson or Mr. Bevan to comment further.
Mr. Pearson: As the minister said, we should probably be distinguishing between two warrants, one strictly for the purposes of inspection, or an entry warrant, which can be issued by a justice of the peace in any province. That is simply, as the minister said, to verify compliance with the act or with the obligations under the act or other acts, including the Fisheries Act. By the way, it is very common in other statutes as well, such as the Canadian Food Inspection Agency Act, et cetera, under the CFIA.
If in such a process a protection officer saw information or saw evidence that there might be some wrongdoing, he or she would then have to return with a search and seizure warrant, or a further warrant, a search warrant, which would be for the purposes of gathering evidence for prosecution or potential prosecution. In that second circumstance, returning with a second search warrant, such a warrant would only be possible if it was issued by a provincial court judge under the terms of the Criminal Code. That would be required in any province.
Senator Baker: The wording is ``entry to the dwelling place is necessary to verify compliance with this Act.'' That is a pretty broad instruction to be giving.
I just wish you would have a look at it because in the continuity of this new act, the scheme of the act, you cannot have — you can have but it is not advisable to have an act in which you have a restriction to a justice of the peace who may be very unqualified to do anything in some instances, depending on the province you are in, such as entering a dwelling place to investigate compliance with the act.
I wish you would look at this again and ask if this is what they meant. If you do not introduce an amendment, I intend to introduce an amendment and put up quite a fight in the Senate to try to get it changed. I do not see what would be wrong with you having the same wording here for a dwelling place as you have everywhere else. You can still get it with a justice of the peace or a provincial court judge.
Senator McInnis: It is different from province to province. In Nova Scotia, for example, they are all lawyers and they are available 24-7. They started with 25, I think it is, and then they have a separate one for marriages, and that type of thing, and you apply specifically for that. Part of the problem with judges is that they are kind of nine-to-five.
Senator Baker: However, they are available 24 hours.
Senator McInnis: Well, not really. That is why they went with the justice of the peace in Nova Scotia. I am not sure, but as I recall, judges in Newfoundland, when I was in law school, the guys over there told me that you did not even have to be a lawyer to be a judge.
Senator Baker: That is right. How do you think I got there?
Senator McInnis: My point is that the fact they are available 24-7, in Nova Scotia at least — I am not sure what it is like in other provinces — they certainly have the competence and they are trained well to handle these things. It was predicated on the fact that judges would not be bothered, if I can put it that way. Sometimes when inspections are done — and there are inspections — there is urgency, and that is why they have done that in Nova Scotia. Nova Scotia has always been at the forefront in this regard, as you can appreciate.
Senator Oliver: I think Senator Baker makes a very good point about consistency within the legislation, and I would love to hear from Mr. Bevan as to whether he feels there is merit in the doctrine of consistency and making sure that similar words mean similar things in similar statutes.
David Bevan, Acting Deputy Minister, Fisheries and Oceans Canada: Certainly. With respect to the Fisheries Act, the powers of fishery officers to enter into places are quite explicit. They can enter into any place where they believe there are fish, et cetera. There is a requirement to get a warrant for doing so with a dwelling place, but on vessels, in fish plants, trucks, et cetera, they have the authority under the act to pursue their duties and enter into the types of places where they have reasonable grounds to do so.
Senator Oliver: Enter or inspect?
Mr. Bevan: To enter and inspect and, in the event of a problem, to take action to seize and pursue charges.
In this case, you would need a warrant to conduct an inspection in a dwelling place in order to ascertain compliance. In the event that there was non-compliance, you would need a separate warrant to pursue the kind of activity that might involve search, seizure and the laying of charges. I think it is relatively consistent.
We have the same kind of powers in the Fish Inspection Act, Meat Inspection Act, Aeronautics Act and Safe Food for Canadians Act. These are consistent across a number of acts and are required if we are going to have the ability to comply with what we have undertaken internationally with respect to the port measures. I think it is consistent.
The Chair: I am sure we will have further discussion.
Senator Harb: Minister, I want you to go to page 3 of the bill, clause 4, proposed subsection 5.6(1) under ``Prohibited Import.'' I will read it for the record.
No person shall import any fish or marine plant knowing it to have been taken, harvested, processed, transported, distributed or sold contrary to any of the following . . . .
In that paragraph, I took issue with the word ``possessed.'' I looked in the dictionary to find out what ``possessed'' meant. Maybe you can elaborate on this for me. It is an adjective: ``Spurred or moved by strong feeling, madness or a supernatural power, often followed by `of' or `with.' `The army fought as if possessed.' `The village believed her to be possessed of the devil.' Self-possessed, poised,'' and it goes on. I am an engineer, not a lawyer. Could you explain to us what that really means?
Mr. Bevan: I think there is a much more mundane meaning of ``possessed'' in regard to this, which would be to have material under your control and a much more usual definition in terms of having ownership or control of a particular lot of fish.
Senator Harb: One would assume if you import it, you already have it at your disposal.
Mr. Bevan: It is just a means by which we can make it simpler for enforcement. Someone may argue that they did not import it; they just have it or it is in their control, it is in their warehouse. This makes it simpler to hold people to account for the nature of the lots of fish they are in possession of or have imported. It is a simplification of the job that will have to be undertaken by the fishery officers.
Senator Harb: I want to take you to page 6, subparagraph 6(f)(i). Here you talk about ``incorporating by reference, or carrying out and giving effect to, any of those measures as of a fixed date or as they are amended from time to time and designating . . . .'' That is what you are proposing, right? What is the present situation now? Why do you find it really necessary to spell it out?
Mr. Bevan: The details of this would be understood by our legal drafters.
The intent, of course, of the Coastal Fisheries Protection Act and the amendments is to expand our capacity to deal with illegally caught fish from other jurisdictions. Right now we do not have the capacity to deal with imports, et cetera, in the efficient way we need to do so for the Port State Measures Agreement. This will allow us to change the current legislation to incorporate the changes, but I have to turn to others who may have more detailed understanding of the exact legislation changes. I will go to Mr. Pearson on that.
Mr. Pearson: I would say yes, we could probably provide further written explanation to the committee, but I believe that part of the understanding is in relation to the fact that international agreements are established at a certain point in time and can be amended or revised at points in time. This legislation reflects that reality and, therefore, would be applicable to legislation or international agreements as they may be, first, established and, second, amended from time to time.
Senator Harb: That is a point well taken.
Mr. Bevan, as a correction, you cannot change the legislation without coming to Parliament as an administration. I want to clarify that; right?
Mr. Bevan: Yes.
Senator Harb: Thank you.
On page 19, the final thing about the coming into force, it is stated:
This act comes into force on a day to be fixed by order of the Governor in Council.
What is the rationale for that statement? Second, will this legislation be subject to review by a parliamentary committee after five years or not? Finally, will resources be allocated to the ministry in order to get the power to be able to enforce?
Mr. Bevan: On the date of coming into force by order of council, obviously the act gets passed by Parliament — or that is the hope — and then the coming into force will be set by the Governor-in-Council to allow us time for consultation and allow us the time to inform people of the new requirements and the consequences of actions that might involve importation of illegal fish.
Currently we have about 700 fishery officers across the country. This legislation provides new tools for the officers to deal with importation and illegal fish. They currently are involved in the enforcement of the Coastal Fisheries Protection Act, looking at whether vessels have the authorization to enter our zone, authorization to land in Canada. We do inspections of numerous vessels that are catching fish in the NAFO regulatory area. We do those inspections in Canada. We have dedicated resources, and it is a matter of now providing new tools to fishery officers to allow them to turn their attention to this in a more effective way.
Senator Raine: Thank you very much for being here this morning. I think this is welcome news. I hope enough nations sign on so that it can actually be ratified. I gather that is an ongoing process.
My understanding is this is needed because there are some loopholes now where fish can be caught illegally and then moved over to another vessel that can then say, ``I did not catch these illegally.'' Now when they are landed they would be considered illegal; is that right?
Ms. Shea: Yes. We have changed the definition of ``fishing vessel'' to include container vessels, any type of transshipment vessels so that transshipment at sea of some fish that has not been already landed will be caught under this act.
Senator Raine: Does the act give any resources or tools to prevent importation from a country that is not party to this act? For example, could a country that is not a signatory catch fish illegally, process it and then export it to Canada? I am thinking of all the canned fish that we see in our supermarkets that are products of some country that I do not think we have fishing agreements with.
Mr. Bevan: The short answer is yes. If a country is fishing outside of the authority or the control of a regional fish management organization — it is just fishing unilaterally without any compliance with the international norms — then that fish would be subject to intervention under this act.
Senator Raine: That is where the sharing of the naughty list is so important.
Mr. Bevan: That is correct. That list will include and now includes the fishing vessels but also any vessel that aids fishing vessels engaged in illegal acts. If they provide fuel or transshipping products or packing materials, all of those activities will be covered under this approach.
Senator Raine: Thank you very much.
Senator Oliver: First, minister, thank you for coming. I think this is an important statute because anything that will assist Canada in doing something about a loss of between $10 billion and $23 billion worth of illegally caught fish is very important to us. I look forward to seeing this passed.
It is very easy, however, just to pass a bill. It seems to me that there are probably many other things you and your department are doing of a high-tech nature to assist in this as well.
The bill gives fishermen, ports and many other people some new authorities, as you have just explained, but what about using information technology and high tech and things like GPS to start taking pictures and doing surveillance to see what is happening and who is doing the illegal fishing? Is information technology and high tech, such as GPS, being used to assist in trying to capture these people and get some legal evidence as to what they are doing?
Ms. Shea: We do use technology, of course. The vessels are required to have vessel monitoring systems so we can tell where vessels are. We also have sophisticated technology so we can tell from the air many of the things happening aboard a vessel. Technology is developing all the time; it is evolving and becoming the wave of the future. We invest heavily in patrolling the NAFO regulatory area, which is one of the reasons why the instance of overfishing has fallen so drastically, because of Canada's leadership.
Senator Raine: Are there similar agreements on the Pacific coast?
Ms. Shea: We actually were in discussion about that. A regional fisheries management organization for the Pacific coast is under development to regulate high seas fishing in the Pacific.
Senator Poirier: Thank you, minister, for being here, and thank you staff also. I have two questions. First, are there any adjustments that the Canadian ports need to do in order to meet the requirements of the new amendments?
Ms. Shea: I do not believe so.
Mr. Bevan: I do not believe so.
Currently, any foreign vessel coming into Canada to transship is subject to inspection. Those requirements exist. The big change will be in terms of the fact that now we will be able to cover everything from airports to normal container traffic, et cetera. Those are things that we will have to explore more fully in terms of our presence in those areas where we have not yet had a significant presence.
With respect to the normal traffic of fishing vessels, we are already covering that. This will just provide us with better tools to ensure compliance. Where it will be different will be in the fact that importation of lots of fish, either in a container or in other vehicles or aircraft, will be then subject to this particular statute.
Senator Poirier: In your opinion, what impact would law-abiding harvesters expect with the changes in the definition from fishing vessels to fish?
Mr. Bevan: I think there will be no real impact on anyone who is law-abiding. For example, anyone who is in compliance with regional fish management organizational requirements will still be free to enter into the Canadian zone to transfer or transport their product to a port in Canada and have it transshipped from there. That will not impact on them. It will have no impact, of course, on Canadian fishers, because they are subject to the Fisheries Act and are not subject to this particular statute as an additional requirement. They will be subject to the Fisheries Act. For law-abiding importers and law-abiding fishermen internationally, that will not have an impact. It will have an impact, as we hope, on anyone who is looking at getting cheaper, illegal fish and trying to bring that to market.
Senator Poirier: Have you been talking or consulting with fishing organizations?
Mr. Bevan: On this, the fishing organizations are generally supportive.
Do you have an answer to that one, Mr. Pearson?
Mr. Pearson: We have had a lot of conversations, primarily with what we would call the umbrella organizations for fisheries — the Fisheries Council of Canada, for example. There is also a B.C. coastal alliance organization that we consult with on a regular basis to try to cover those key interests.
In addition, in the process of producing the legislation, we consulted with key shipping organizations. For example, on the issue of transshipment at sea, which is a problem that exists extensively off the coasts of Africa and other locations and has not been an issue with Canada per se, we wanted to ensure that there was no undue interference with the significant global traffic, including into Canada, of huge container ships, or holding up for any period of time a ship like that that may have thousands of big containers on it only to target one specific container or more if there was evidence to suggest that that container had illegal fish on it.
The reality is that transshipment at sea is not really with big container ships. It would be with vessels that have the capacity to take on fish from a fishing vessel but themselves are not considered to be on a black list. This was the whole issue, namely to try to prevent vessels that are on a black list from transshipping their product to another vessel that may not be much larger than theirs but is not a fishing vessel and is not on a black list and then allow that ship to come into port and offload the product on the basis that, ``We are not illegal and we are not on any black list, so we should be allowed to offload this product.''
Senator McInnis: My question is more for clarification. With search and seizure and forfeiture, my understanding is that it can go forward if the vessel's flag state concurs with it. Is that correct? Procedurally, on an ex parte application, if you get the warrant, what do you do? Do you pick up the phone and call the flag state? If they say no, you cannot go forward. Am I interpreting that correctly?
Mr. Pearson: This is the provision to deal with inspection of a vessel that might be under the control of a flag state and indeed we have the consent of the flag state but not the consent or the concurrence of the captain of the vessel for the vessel to enter into port. Under the changes to the act, the minister will be able to issue a licence, which always is in response to a request. In this case, not in response to a request from the flag state but from the vessel captain, she will be able to instruct that vessel to be brought into port for inspection purposes on the basis of suspicion that there may be illegal fish. If the flag state did not consent to such an entry, yes, it would not be possible to do so. This is on the basis of flag state consent but not a request by the vessel captain to come into port.
Senator McInnis: Would this be one of the 23 that signed on? Is that what you are saying?
Mr. Pearson: This would be applicable to any situation, any flag state. There are issues of flags of convenience where it is a bit more of a challenge, but for the purposes of vessels that are off Canada's coast, it is always vessels that are from what we would call legitimate flag states, not flying flags of convenience.
Senator McInnis: So they have a permit, and if they are one of the states that signed on, then we have no difficulty with them?
Mr. Pearson: Yes. For example, we had a recent case where a vessel from a member country of the European Union was inspected at sea, and there was some indication that a further inspection at port was required. The flag state was supportive of that, but we did not have the ability under our current legislation for the minister to issue a licence even though the vessel captain did not want to come into port, because the only rule that exists now is that a request comes in from the vessel captain or owner but not the flag state necessarily and the licence is issued or not by the minister. In this case, she will issue a licence on the basis of an agreement with the flag state, not with the vessel owner.
Senator MacDonald: We are trying to go after illegal, unreported and unregulated fishing. Who are the worst perpetrators of the flag states in terms of this practice, and are any of them signatories to the agreement?
Mr. Bevan: In the Canadian context, we have not had a problem with these kinds of activities off our coasts for a number of years. We took action, and taking action, including arresting vessels, has convinced people who are making this kind of living, illegal fishing, to go somewhere else.
If you look at the whole action taken over the course of the last number of years in the North Atlantic where a number of vessels that were engaged in or aided illegal fishing were held in port, the people doing this activity moved somewhere else. It did not stop. That is why this is important. We do not want to move it; we want to stop it.
In the Canadian context, most of the vessels went south, off of Africa or into the southern ocean, et cetera. They do not stay around areas where there is a high probably of surveillance and a high probability of action.
Senator MacDonald: Are most of the perpetrators from the southern hemisphere?
Mr. Bevan: Flags of convenience are used, and vessels will flag shop. They may have a flag of one country today and another country tomorrow. They do that kind of thing. There are flag states such as Georgia and Belize where you can get a flag of convenience. It is not so much where the flag is from but who is investing and who is doing the work. They are using crews from poor places, the vessels are not in good shape, and their major value is the fish they hold, not in the vessel itself. They just move around wherever they can.
In terms of the flags they use, they move geographically to places where there is no sophisticated monitoring, control and surveillance — to coastal states that are not up to the challenge of going out to see what is going on and taking action to stop it. We have taken that action, and the North Atlantic countries have taken that action. By and large, it has gone. The North Pacific Anadromous Fish Commission is a group of countries that has cooperated in the enforcement of the ban on high seas drift netting. That has had a good effect on eliminating that practice as well.
Senator MacDonald: To date, 4 countries have ratified of the 25 countries that signed the agreement. Should we be alarmed by that relatively low number or is it just a matter of process? Which countries have ratified? Are we concerned about any countries that might renege on their commitment?
Mr. Bevan: Generally, there is a real move internationally to try to stop this kind of practice, given the recognition of the damage being done to fish stocks and to markets. It seems to be like it was with the United Nations Fish Agreement: It takes time. For example, Canada has to change legislation before we can ratify. That same situation likely exists internationally.
I will turn to my colleague, Mr. Pearson, to give more detail.
Mr. Pearson: The European Union, Norway, Sri Lanka and Myanmar, or Burma — a bit counterintuitive is it not — have ratified. In Myanmar's case, they have a relatively straight forward system of decision making so perhaps it is easier for them. As was mentioned, 25 countries need to ratify in order for the agreement to enter into force.
In any situation there is a process time, just as we face, with respect to the ability to go beyond the signature to ratification. For example, the United States needs to have the Port State Measures Agreement brought in as a result of an agreement from their Senate. I was in Washington recently where we had a discussion with the State Department about their attempts to try to get agreement from the Senate not only on the Port State Measures Agreement but also the amendments under NAFO and this new North Pacific Anadromous Fisheries Commission, as well as a package of those various international agreements that the United States has signed onto in order for the United States to be able to ratify. The U.S. is hoping to do that early in the new calendar year. It is that kind of process. It could be a couple of years before they have all 25 countries ratified.
Senator MacDonald: Do we have a ballpark figure of how often illegal and unregulated catch is landed in Canada? How many times a year do you think it happens off our shores?
Mr. Bevan: It is speculation because we do not have the tools at this time to do the enforcement or compliance measuring. Given the activity internationally, in particular around thing likes the Patagonian toothfish and other species, I would expect it is frequent but not involving huge individual volumes. We do not have shiploads coming in, but we have boxes of importation coming in. I am speculating on that because there is a market in Canada for good quality fish, obviously. These folks are prepared to tap into that market using illegal sources.
Senator MacDonald: You have no idea of the amount of tonnage that might be landed.
Mr. Bevan: No.
Senator MacDonald: Do you know the type of fish?
Mr. Bevan: The fish being targeted are the Patagonian toothfish and possibly tunas, which would be subject to fishing outside agreements. It is based on the location of the targeted fisheries that are illegal. There is a lot of work being done internationally to stop those.
Senator MacDonald: I guess that is why we need the legislation.
Mr. Bevan: That is correct.
Ms. Shea: One of the reasons they would be less likely to come here is because we retain inspections.
Senator Raine: Would this help to prevent the illegal importation of shark fins?
Mr. Bevan: Shark fins are not always illegal. That is a very tricky question.
Senator Raine: We will leave that for another time.
Senator Hubley: Bill S-13 has brought new provisions to the Coastal Fisheries Protection Act on the prohibitions related to importing illegally acquired fish and marine plants. Are there issues pertaining to marine plants that we should be aware of?
Ms. Shea: I will speak to the specifics, but we did expand the definition of ``fish'' to include marine plants, which in many cases are very valuable. Perhaps my colleagues wish to talk about specific marine plants.
Mr. Pearson: Briefly, as the minister said, part of the issue was ensuring that we, as consistent with the international agreement, are covering living organisms beyond fish. They need to add marine plants to the definition for that purpose. Marine plants include seaweed, for example.
There is probably a broader debate, although it was not specific in the Canadian context that I am aware of, about whether utilizing or promoting trade in certain types of plants that might be considered endangered or at risk could include not only common concepts of plants like seaweed but also corals, sponges and other elements of vulnerable marine ecosystems that could be harvested illegally. It would cover those kinds of products as well.
Senator Baker: Senator McInnis clearly outlined the rules in Nova Scotia. This proposed section to the act allows the searching of a person's dwelling place — their home. It restricts the warrant in that it must be issued by a justice of the peace. It cannot be issued by a provincial court judge or by a superior court judge. In Nova Scotia, that is fine, as Senator McInnis said. However, if you go to Prince Edward Island, where the minister is from, or to Newfoundland and Labrador, you find that justices of the peace are usually officers of the court — they work in the courtrooms.
The fisheries officer goes into the courtroom and he is looking for authorization. He has sworn an affidavit and is looking for direction. If the direction is not correct, namely, reasonable grounds to search someone's home, then for that warrant, the person accused will hire Senator McInnis to throw out the original warrant, which would then throw out everything else that came after it in the searching of the home. That is my point. Why not change it to say ``a justice as defined under Criminal Code section 2,'' which would include a justice of the peace in Nova Scotia but as well as a provincial court judge. They would have a choice of doing it. The Supreme Court of Canada has said many times, as Senator McInnis and Professor Oliver will tell you, that to search someone's home, you need judicial authorization in case it is challenged. That is my point. Maybe you could just think about it.
Ms. Shea: We will commit to talking to the Department of Justice and to providing additional information.
Senator Baker: Good.
The Chair: I thank the minister and her officials for being here. We will take the opportunity to wish you a Merry Christmas and all the best in the 2013. As always, we reserve the right to ask you to come back for clarifications.
(The committee continued in camera.)