Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 1 - Evidence - December 3, 2013
OTTAWA, Tuesday, December 3, 2013
The Standing Senate Committee on Fisheries and Oceans, to which was referred Bill S-3, An Act to amend the Coastal Fisheries Protection Act, met this day at 5:36 p.m. to give consideration to the bill.
Senator Fabian Manning (Chair) in the chair.
[English]
The Chair: I apologize for our lateness in arriving, but the Senate was sitting a little later than we anticipated this evening.
My name is Fabian Manning. I am a senator from Newfoundland and Labrador, and I am 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 Watt: Senator Watt, Nunavik.
[Translation]
Senator Robichaud: Fernand Robichaud, senator from Saint-Louis-de-Kent, New Brunswick. Good evening.
[English]
Senator McInnis: Tom McInnis, Nova Scotia.
Senator Raine: Senator Greene Raine from B.C.
Senator Hubley: Senator Elizabeth Hubley, Prince Edward Island.
Senator Wells: David Wells.
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
Senator Seth: Asha Seth, Toronto, Ontario.
Senator Enverga: Tobias Enverga, Ontario.
[Translation]
Senator Poirier: Rose-May Poirier, senator from New Brunswick.
[English]
Senator Baker: George Baker, Newfoundland and Labrador.
The Chair: Thank you.
The committee is continuing its study of Bill S-3, An Act to amend the Coastal Fisheries Protection Act, and is pleased to welcome senior officials from the Department of Fisheries and Oceans here this evening to discuss the act with us. On behalf of the members of the committee, I thank Mr. David Bevan, Associate Deputy Minister.
Welcome back once again. You have been before our committee many times. We would ask you now, if you would, to introduce your colleagues.
David Bevan, Associate Deputy Minister, Fisheries and Oceans Canada: Yes, I am here tonight with Nadia Bouffard, Acting Senior Assistant Deputy Minister of Strategic Policy; and Sylvie Lapointe, Director, Fisheries Management Plans.
The Chair: The floor is yours, Mr. Bevan.
Mr. Bevan: I will make what I hope will be a brief presentation and allow more time for questions.
As you know, Bill S-13, which was introduced in the Senate on November 8, 2012, was replaced, in name only, by Bill S-3. All of the rest is exactly the same. The bill proposes to amend the Coastal Fisheries Protection Act, which has been with us for a number of years. It is a powerful tool in providing authorities to the minister to protect straddling stocks and to protect Canadian resources within our economic zone, but it does need to be modified to increase the tools available to fisheries officers and CBSA agents to allow us to implement an agreement on port state measures to prevent, deter and eliminate illegal, unreported and unregulated fishing.
I am sure many of you will remember a number of the points raised when Minister Shea appeared in this room to discuss Bill S-13 in December of last year.
The Coastal Fisheries Protection Act is the legislative means by which the federal government controls foreign fishing vessels' access to and activities in Canadian waters and ports. Through this act and its associated regulations, the Minister of Fisheries and Oceans has the authority to authorize access to Canadian ports and Canadian fishing waters for foreign fishing vessels. The act prohibits foreign fishing vessels from entering Canadian fisheries waters unless they are explicitly authorized to do so. The act also prohibits any person who is aboard a foreign vessel from fishing or participating in other fishing related activities inside Canadian fishery waters without an authorization.
The Coastal Fisheries Protection Act forms a legal basis for implementing international fisheries treaties and arrangements to which Canada is party. For example, this is the act that allows us to implement the United Nations Fish Stocks Agreement. Where the provisions of conventions of the Northwest Atlantic Fisheries Organization have conservation enforcement measures, this is the act that will allow us to put those in place.
Granting access by a foreign fishing vessel to Canadian ports is a privilege, and the Minister of Fisheries may authorize it or may not in accordance with the regulations.
The Canadian-European Trade Agreement does not change the existing authority under the act and the regulations made under the Coastal Fisheries Protection Act. Canada will not grant a preferred treatment to EU member state vessels under this trade agreement. The application of an EU vessel for a licence to enter Canadian ports will be reviewed in accordance with the criteria stipulated in the regulations. For example, a vessel would be denied port access if there was evidence to suggest that it had been involved in illegal, unreported and unregulated fishing, regardless if it came from the EU or any other state for that matter. Therefore, nothing in CETA affects Canadian sovereignty and control of its territorial waters. Canada would take enforcement action against an EU fishing vessel if it carried out activities within our territorial waters that are in contravention of the licensing conditions.
The Port State Measures Agreement is changing some of the requirements that we need to put in place. We already meet many of the criteria for the Port State Measures Agreement. However, there are a few gaps in our policy and legislative regime, namely in relationship to vessels that could support illegal fishing or illegal fishing activities. Right now we have the authority under the Coastal Fisheries Protection Act to take action against a fishing vessel and to seize catch, et cetera, but we don't have explicit authority to take action regarding vessels that might be supporting illegal activities; for example, providing fuel or provisions to vessels fishing illegally, or transshipping illegally caught fish or bringing in illegally caught fish to Canada in a container or processed form. Those are gaps that don't currently exist under the Coastal Fisheries Protection Act but which we need to fill in order to ratify the Port State Measures Agreement.
As of today, eight member states have become party to the agreement, including the EU, Norway, Chile, Uruguay, Oman, Seychelles, Myanmar and Sri Lanka. Another 19 states, including Canada and the United States, have signed the agreement indicating intent to become parties to the agreement, but signing the agreement just says we will take action to provide ourselves with the tools necessary to put in place and to meet the requirements of the Port State Measures Agreement. Right now we have indicated our intent to do so, but we need to change the Coastal Fisheries Protection Act to close those gaps and have the authorities needed to implement all the measures anticipated by the Port State Measures Agreement.
The key provisions of the Port State Measures Agreement include refusal of entry into port or use of port services to vessels that engage in illegal, unreported or unregulated fishing, or in fishing-related activities supporting fishing such as I mentioned earlier. It also would allow us to apply these prohibitions against vessels listed by our regional fish management organizations; for example, ICAT or NAFO or other regional organizations that create lists of vessels that have either supported illegal fishing or conducted illegal fishing.
The Port State Measures Agreement sets minimal standards for information to be provided by vessels seeking entry into port. It provides the authority for us to have cooperation to exchange information, including verification of fishing authorizations, so it provides us with those tools. The agreement allows us to designate ports that permit landings that currently exist with the Coastal Fisheries Protection Act, but it will also now allow us to apply it to non- fishing vessels transporting fish to our markets and sets minimum standards for inspection, inspectors and their training, as well as information required.
To summarize the proposed main amendments, we need a few new definitions. The definition of "fishing vessel'' in the Coastal Fisheries Protection Act will be amended to include any vessels used in transshipping fish or marine plants at sea or in port, and where the fish have not been landed in port. Under the current authorities, we can now intervene with fishing vessels that come into our zone or come to port, but we can't necessarily do that under the Coastal Fisheries Protection Act with respect to sustainably caught fish or unsustainably caught fish — illegal fish. We can't do that without these changes to the Coastal Fisheries Protection Act.
These changes will allow us to have all the authorities we need for full implementation of the Port State Measures Agreement and make it consistent with the Fisheries Act and we'd be able to ratify the Port State Measures Agreement.
Those are the key issues.
One of the other key issues is the act will allow us to have the authorities to share information between ourselves and the Canada Border Services Agency. Right now there is some question as to how much information can be shared. If we're gathering information for one reason, can we share it with another agency? This will clarify any doubts about our ability to share information with CBSA and we would therefore have the ability to work together in a more efficient manner.
We already share information with other countries, especially in the context of enforcing conservation and management measures of regional fish management organizations, but this will also law us to take additional action. For example, if an EU vessel contravenes the NAFO Conservation Enforcement Measures outside our 200-mile limit, the EU could order the vessel to a Canadian port, with our cooperation, and we could cooperate with them under the amended act to do an inspection in Canada to help them in that regard. We already have some measures similar to that under the conservation enforcement measures of NAFO, but this would make it much clearer. The proposed amendments would also be very clear about importations of fish and international treaty arrangements to which a party would help us take action on these importations.
Finally, it would also reference in the Coastal Fisheries Protection Act the conservation enforcement measures of RFMOs. We're finding right now that most of the time when we make changes to those they are done with our full agreement because generally speaking we are improving them on an annual basis as we move forward. These would allow a simpler adjustment of our authorities under the Coastal Fisheries Protection Act with amendments that would reference the RFMO, et cetera. That would help us reduce administration and reduce delays. If there was something we didn't agree with, then we would take action not to implement it, but, as I said, most of the time in my experience there's been agreement on those issues.
On next steps, in addition to proposed amendments to this act, its regulations will also need to be amended. Once those amendments are in place, we will be in a position to ratify the Port State Measures Agreement.
We in Fisheries and Oceans, in consultation with CBSA, will develop the necessary monitoring, enforcement and information-sharing mechanisms that should help us improve the situation for conservation and greatly worsen the situation for people involved in these illegal activities.
We have seen a lot of progress over the last number of years regarding the movement of illegal fishing away from Canada, the North Atlantic and the North Pacific. It's very important that we help the international community by being a leader in actions against IUU fishing to help the international community move to a better position in terms of being able to dissuade this kind of activity on the high seas in a number of other locations on the globe.
With that, I'll turn it over to questions.
The Chair: Thank you, Mr. Bevan. As is customary for new members, I always ask the deputy chair, Senator Hubley, to ask the first question. I hope everybody is in agreement with that.
Senator Hubley: Welcome, Mr. Bevan. It is nice to see you again. I must be getting long in tooth as you're a familiar face here these days.
If you have evidence that a vessel is doing improper things on the high seas, do you have the ability to seize that vessel, or do you have to take the evidence and go to a judge or another body to have the authority to seize it.
Mr. Bevan: It's a simple question with a complex answer. It depends on the circumstances. For example, right now under NAFO Conservation and Enforcement Measures, if we board a vessel and find a problem, a series of events will take place. If it's a serious infringement of the Conservation and Enforcement Measures, we contact the contracting country or the EU, after which they must take a series of steps. In one scenario, we stay on board until they confirm the infringement. Most of the time it's confirmed and a decision is taken to either withdraw the vessel from the zone and do the inspection on their own, which has led to significant fines in the past, or bring the vessel back to port, which is a big expense. They confirm the activity in terms of administrative justice and fine them. In the other scenario, they can ask us to help them, in which case they order the vessel to a Canadian port, and we take the action that they would take — the evidence back to their courts.
For example, if people are fishing outside the 200-nautical-mile limit on sedentary species of fish, then they are subject to our jurisdiction. Other activities would have to be looked at on a case-by-case basis. Right now it's a 200- nautical-mile limit. If you do anything at 199.99 nautical miles, you're subject to Canadian jurisdiction; and we have taken action. If you do anything outside the limit, there are other mechanisms to deal with non-compliance.
Senator Hubley: Is there any length of time that a seized fishing vessel is usually held or can be held? Is it pretty much in our hands if we seize the vessel?
Mr. Bevan: As you may recall from events a number of years ago, we did seize vessels. Unfortunately, in one respect they were in port for many months because it created an obligation on us. The time limit would be related to the nature of the offence, the evidence, the disposition of the case, and what people want to do with the vessel afterwards. Generally, they leave their vessel. When fishing illegally on the high seas, it isn't the vessel that's worth anything, it's the catch; and we seize the catch so they're no longer interested in the vessel. The vessel is usually arranged to be disposable in most cases.
[Translation]
Senator Robichaud: Mr. Bevan, you started to say 300 miles in your answer just now. If and when the limit increases to 300 miles from 200, will this bill apply in the same way?
Mr. Bevan: Clearly, the current limit is 200 miles. That is the limit for marine activities. It is different when we talk about ocean depth, the continental shelf. That is another issue. At the moment, we have no possibility of changing the international law on marine activities.
Senator Robichaud: We are staying within 200 miles.
Mr. Bevan: Yes.
Senator Robichaud: Thank you.
[English]
Senator Baker: For clarification on that point, December 7 is fast approaching — in fact this Friday is the last time. I presume that the Government of Canada is going to follow through and make sure that it does something at the United Nations regarding the extension of jurisdiction over the continental shelf. I ask you for a yes or no answer only.
Mr. Bevan: Yes.
Senator Baker: I'll go to something else now. First, I congratulate Mr. Bevan for something that was brought up at our last meeting behind closed doors.
Mr. Bevan, how many years were you President of NAFO, the organization that controls over 20 nations that fish out around our continental shelf? As well, how many years were you chairman of the enforcement division of NAFO?
Mr. Bevan: I was Chair of STACTIC, the enforcement division, for eight years and President of NAFO for four years.
Senator Baker: Incredible. You're an expert on all of these matters. Before I ask you the key question, I want you to elaborate on an answer you gave a few moments ago. You were restricting your words to "200-mile limit'' and the actions under this act and enforcement out to 200 miles. You said that you have exerted your efforts on occasion. Could you verify to us that in the past, for fishing outside the 200-mile limit, you chased a vessel halfway across the Atlantic Ocean and brought it back to port in St. John's, Newfoundland, and court action followed? The last judgment was a case called Hijos v. Canada, 2007. Justice Nadon, who is being considered for the Supreme Court of Canada, gave the judgment in which he said that the RCMP and NAFO enforcement officers, who used machine guns and so on, did not use unnecessary force. We have an instance in the past where it was legal for you to chase a vessel halfway across the Atlantic Ocean for the fishing of flatfish over the limit outside 200 miles.
Mr. Bevan: I can't recall those details, but I can say that a number of vessels have been arrested outside the 200-mile limit for overfishing in contravention of international law. Specifically, a number of vessels I can recall were fishing sedentary species on the continental shelf outside 200 miles. That fish is subject to Canadian jurisdiction. They were arrested, brought in, and there were discussions internationally to go through the list of species that would be deemed sedentary.
Another time, a vessel that had some Canadian connection was fishing outside 200 miles without a licence from Canada, even though they were largely funded by others. That vessel was subject to arrest and brought into Canada.
There are other instances, but I don't recall all the specifics off the top of my head with respect to a number of them. I recall the events before, back in the 1990s or even the 1980s, when there were high seas chases, but that was a different circumstance where Fisheries officers were taken on those vessels against their will and we had to get them back.
Senator Baker: The key question, Mr. Bevan, is that Senator Raine and other members counted the number of instances in this bill in which you give authority under this act for justices — in other words, as defined under section 2 of the Criminal Code, a justice includes a provincial court judge — to issue warrants, to go into fishing vessels, to inspect, and so on. "Justices'' under the Criminal Code includes a provincial court judge.
All of a sudden, you get to a point in this act where you are talking about an inspector visiting somebody's home and getting a warrant to go inside. The greatest of intrusions in our society is to go into somebody's home. And all of a sudden under this act you change it from a justice, which is normally a provincial court judge or a justice of the peace, to only a justice of the peace, to the lowest person on the ladder as far as legal experience is concerned, to issue a warrant to invade somebody's home, based on reasonable grounds. I am wondering why you still maintain this.
You appeared before this committee before. We brought it up and told you that justices of the peace were under provincial jurisdiction. In Newfoundland and Labrador, we don't have justices of the peace that conduct trials. In Nova Scotia they do, as Senator McInnis was pointing out to us.
So why have you persisted, your drafters, in leaving in the lowest person on the rung to be able to issue a warrant to invade somebody's house?
Mr. Bevan: The drafters informed us they don't wish to be overly specific in this regard because all provincial and territorial jurisdictions are responsible for the administration of justice within their jurisdictions.
In Newfoundland and Labrador, only court judges can issue warrants. So we could not get a warrant from a justice of the peace in Newfoundland and Labrador. In other jurisdictions it's different.
It varies across Canada, and there are different practices in each of the different jurisdictions. We can provide a summary of that to you, if you wish, but that is just a generic catch-all phrase used to ensure that a Fisheries officer or a CBSA agent who has reasonable grounds to believe that there is illegally caught fish in a premise can get a warrant from the appropriate authority within the jurisdiction. In Newfoundland, as I said, only provincial court judges can issue it.
Senator Baker: Where does it say that? What is their practice?
Mr. Bevan: It is their practice.
Senator Baker: Well, it is their practice, but you have got here a justice of the peace.
Mr. Bevan: In other locations it is a justice of the peace.
Senator Baker: But it does not say here "excluding Newfoundland.''
Mr. Bevan: No, it doesn't need to, because in Newfoundland they are the ones responsible for the administration of that process, and they have decided that only court judges can issue the warrant.
In Nova Scotia, as noted before, it is different; in New Brunswick, only provincial court judges. Justices of the peace in P.E.I. are authorized to issue warrants, and so on. It's variable across the country. We don't want to draft something that would be intrusive into the provincial jurisdiction or get overly definitive and thereby require practices to change within provincial jurisdictions.
The legal advice we got was to go with the generic term "justice of the peace'' and then leave it to the provinces to determine how they are going to react to a request for a warrant.
Currently, in Newfoundland, it's required in that jurisdiction. In New Brunswick and British Columbia, it's a judicial justice of the peace. There are different standards in every jurisdiction, and if we tried to draft the federal law it would be very complicated to do it, so we just used the generic term and then respect the provincial jurisdiction.
Do you want to add something, Ms. Bouffard?
Nadia Bouffard, Acting Senior Assistant Deputy Minister, Fisheries and Oceans Canada: To add something, "justice of the peace'' is a generic term. Provinces get to pick and choose what that means within their own jurisdiction, according to provincial jurisdiction over administration of justice.
"Justice of the peace'' in terms of issuance of warrants is something that is used in federal statutes, not just in the Coastal Fisheries Protection Act. Other examples include the Customs Act, the Food and Drugs Act, the Canada Grain Act. There are other examples of federal statutes where that terminology is used in a generic way. The provinces get to decide who that is.
So in Newfoundland and Labrador, they have adopted a policy that clearly announces that it is provincial court judges that issue those warrants.
Senator Baker: I will just give you an example. In R. v. Saunders, 2002, Carswell, Newfoundland 155, paragraph 19:
Search warrants are obtained on an ex parte basis . . . . They are often obtained from justices of the peace who have very little legal training and they are often requested on short notice. . . . many of them have received little if any training. This is unfair to them and makes it impossible for them to fulfill their constitutional obligations. This search warrant illustrates that this is a situation that is no longer acceptable. If the power to issue is going to be granted, then at least a minimum level of training should be provided.
I am just pointing out what is in the law. Senator McInnis is an expert on the law as far as — well, you are in property and contracts.
The Chair: Did you put your hand up?
Senator McInnis: I did because he is correct.
Senator Robichaud: Who is correct?
Senator McInnis: Senator Baker.
Look, in Newfoundland, yes, it does say that. But under section 2 of the Criminal Code, "justice'' includes justice of the peace and a magistrate.
In Newfoundland, they grandfathered "justice of the peace'' and the way they were appointed sometime in the 1990s. In many parts of Newfoundland you don't have availability of the provincial magistrate. What you have is a justice of the peace that I would argue would not have the expertise to deal with it, as Senator Baker is calling for it.
I realize that this is generic and you are trying to do something that applies to all the provinces and territories; I understand that well. But the fact is that in Newfoundland, it is not the case. That is the only point that he is trying to make.
Correct me if I am incorrect, but I can tell you that the Liberal government years ago just appointed all these justices of the peace, and we are trying to get rid of them. We are doing the best we can, but they are not gone yet.
Senator Robichaud: You haven't yet?
Senator McInnis: No, they're not gone yet. That is the difficulty. That could be perceived as a problem. The law applies to Newfoundland as it does to every other province and territory. That's the difficulty.
Senator Baker: If it had said "justice,'' it would have been okay.
Senator McInnis: Yes, that is right. The only problem is when you're referring to "justice,'' the definition includes "justice of the peace.''
Mr. Bevan: Just to note that in 2004, the Province of Newfoundland and Labrador changed the policy whereby it's not possible to obtain a warrant from a justice of the peace; you have to obtain a warrant from a provincial court judge. We are going to respect that.
Senator Baker: Why do you have "justice of the peace'' here?
Mr. Bevan: To cover off all the other jurisdictions where it may apply.
Senator Baker: So you can't get a warrant in Newfoundland.
Mr. Bevan: You can get a warrant in Newfoundland from a provincial court judge.
Senator Baker: Under 487 of the Criminal Code.
The Chair: Senator Wells, do you want to follow up on that?
Senator Wells: I will choose not to follow up on that.
Thank you for appearing. It is nice to see you all again. You said the EU has ratified the provision for port state measures?
Mr. Bevan: That's correct.
Senator Wells: Is it required within the EU for all the member countries to ratify before the EU can ratify it?
Mr. Bevan: If they have ratified, it is applicable to their member states; so I would presume that was obviously done with the agreement of the member states.
Senator Wells: So the ratification was done somehow internally but ratified by the EU. The actions are done on a country basis, though; is that correct?
Mr. Bevan: The EU is the competent authority that we would deal with, whereas the courts would be dealt with by the country, but these provisions would apply to the vessels from member states of the EU because it has been ratified. They are responsible for the fisheries in general and setting the rules for their fleets. Therefore, that would apply to their member states. However, the member states maintain the responsibility for courts, levying fines and so on.
Senator Wells: Right. Of all the contracting parties under NAFO, how many have not yet ratified?
Mr. Bevan: Actually, most of them, including us, have not yet ratified. We have Norway and the EU, but not the vast majority of member states.
Senator Wells: So we have agreed to it, but we haven't ratified it, if I can say it like that, as a contracting party to NAFO and as a partner in the genesis of this agreement. With regard to Canada and the other parties that have not yet ratified, is it customary to respect it until ratification?
Mr. Bevan: Obviously we're giving our intent by signing to ratify it, but to do so, you actually have to create the legal authorities within your country to implement all the measures of the port states agreement. Generally, we support the provisions, but we don't have the authorities just at this point to do everything.
The Coastal Fisheries Protection Act, as it is today, does allow us a great many of the things foreseen in the port state measures, so people will not come into our zone without suffering a high degree of risk of significant consequences. If they are involved in IUU fishing and they are a member of a NAFO contracted party, they are subject to the Conservation and Enforcement Measures of NAFO, and we will take action based on that.
We don't have clear authority to go in to a container port, a border crossing or an airport and say, "We have reasonable grounds to believe that that is illegally caught fish'' and to do an inspection, subject to a warrant, to seize product if it is found to be illegally caught.
Senator Wells: Because we haven't ratified the agreement yet?
Mr. Bevan: That's correct.
Senator Wells: And where are we in the process of ratification?
Mr. Bevan: That is subject to this. If the Government of Canada were to change the Coastal Fisheries Protection Act to give us the authorities needed to put in place all the measures foreseen by the Port State Measures Agreement, then we can ratify.
Senator Wells: Can you tell us what tools Canada has in place to protect our territorial waters with respect to incursions or possible incursions or fishing within our zone or within our 200-mile limit, things like VMS, sea patrols or flights? What are the tools at our disposal?
Mr. Bevan: You've mentioned them. With VMS, the vessels have to tell us where they are every hour. We have overflights with a technically sophisticated air surveillance program. They have high-resolution radars. They have good optics on the vessel. They take photographs in the middle of the night. They can take photographs in the day, and if it's foggy, they can get a high resolution so they can tell what country the vessel is from, if it's not a unique vessel. If it's a unique vessel, we will know what it is.
So we have those kinds of things and sea patrols and boarding outside the 200-nautical mile limit under the authorities of NAFO. We have air surveillance in the West as well.
Ms. Bouffard: The only thing I would add is the requirement to have a licence from the Government of Canada before you actually enter the 200-mile limit. That's currently provided under the Coastal Fisheries Protection Act. In issuing that licence, we could stipulate conditions associated with it. Through all of the tools that Mr. Bevan outlined, we can ensure compliance with those conditions.
Senator Wells: Thank you very much.
Senator Enverga: I know that Bill S-3, an Act to amend the Coastal Fisheries Protection Act, will protect our fish stocks, but what is the economic impact of this? Do you have a general idea of the impact of this on our fishing industry?
Mr. Bevan: IUU fishing is bad for legal fishing for a number of reasons. One, it is a pretty big operation globally and represents billions of dollars of illegally caught fish that go into the market. Illegally caught fish is often lower priced because of the risk associated with the buyers or people moving it through, so it drives price down. It can also jeopardize fish stocks, obviously.
I think in Canada, due to actions taken over a number of years and due to significant changes on both the Atlantic and the Pacific, certainly the function of NAFO has improved greatly from years ago. I would expect there is less immediate change on the economic bottom line for Canadians relevant to the health of the straddling stocks because we are already getting a lot of action done. But there's US$50 billion from illegal fishing globally around the world. That is it not helpful to global markets, and if we can make the economic impact on illegal fishing such that it's no longer worth doing, that is the objective.
With action taken by NAFO in the West, in the East with NEAFC, the North East Atlantic Fisheries Commission, and ICCAT with lists of vessels, et cetera, we have seen a move of this kind of illegal activity out of the North Atlantic. With the North Pacific Anadromous Fish Commission and joint enforcement with Russia, the U.S. and Canada, we have seen a diminishment of that activity through fish nets, et cetera, in the North Pacific, but it has moved.
With this legislation, we would like to provide more tools for others to get at it in a cheaper way. We are spending a lot of money on air surveillance, ship time, fishery officers, et cetera. We have the wherewithal to keep an eye on our 200-mile limit and to be aware of what is going on outside that limit. Others don't have that luxury, but they may have the ability to hold vessels that are contributing to IUU fishing in their ports or to prevent them from supplying vessels. That's the kind of tool that this would help with.
We would like to ratify and move ahead with a more global focus. It would help us, it would help our fishermen and it would help our ability to stop IUU fishing, but I think we would also like to be part of a global approach. If we take action on our ports and in our entry points for fish, if we can prevent illegal fish from coming in, it would be useful.
As an example, it took us a great deal of trouble trying to figure out how we could act on illegally caught Patagonian toothfish, which was caught in the southern ocean illegally. It was very difficult for us to stop the entry. This will certainly help us efficiently do that and thereby make it less economic for people to break international laws and to fish in an unsustainable way.
Senator Enverga: Thank you.
Senator Poirier: I have a very short question that will probably require a "yes'' or "no'' answer.
If I remember right, this is the same bill that was before us a while back, and you were here then and answered our questions on it. My only question is this: Is there anything in this bill today that's different from the one that we saw a while back?
Mr. Bevan: No.
Senator Poirier: Thank you.
[Translation]
Senator Robichaud: The bill says that we cannot import illegally caught fish. But in large grocery chains, you can buy frozen fish from all over, cod, for example.
So how can you be sure that those fish were caught legally?
Sylvie Lapointe, Director, Fisheries Management Plans, Fisheries and Oceans Canada: At the moment, we do not have good tools to do checking of that kind.
Some amendments to the act will allow us to better trace the certification of products coming into our markets. A number of international organizations have developed catch traceability programs. Those products have to come with a certificate indicating that the product was caught legally. The amendments will allow us to do more specific checking, not only in seaports, but often in airports where, at the moment, we have no inspectors checking the products, including frozen ones, that may arrive by air rather than by fishing boat. We will then be able to check that the products are legal.
Senator Robichaud: At the moment, there are no requirements for traceability certificates, correct?
Ms. Lapointe: A number of international organizations have programs in place, especially for high-value products or fisheries, like tuna. So there is an obligation to have traceability and certification programs to make sure that those products were caught in compliance with the steps put in place by the international organizations.
Senator Robichaud: But there are still holes. Not everyone does that.
Ms. Lapointe: Right, but the programs are becoming more and more popular and countries increasingly want to use them so that they can be sure that the products were caught legally.
Senator Robichaud: Who will do the checking? Will it be fishery protection officers? You talked about points of entry where we have border services. Are people there going to be trained to do the inspections or do we need protection officers who are more on top of the situation?
Mr. Bevan: Even if we had the authority to do those inspections, it would not be possible for us to have protection officers at every port in the country. But we could work with the Canadian Border Services Agency to make it possible to have a stronger system in other parts of the country.
After the new legislation goes into effect, we will have to work with others to develop training programs.
Ms. Bouffard: One of the advantages of the bill is the ability to exchange information between agencies so that they can benefit from our expertise in fish inspection and so we can work together to inspect the boats that are bringing in illegal products.
[English]
Senator Raine: It's good to see you again. Remembering back to the last time we looked at the bill, it seems very straightforward, but I have one question. Does the regulatory regime work the same way on the East Coast, the West Coast and in the North? Is it the same everywhere in Canada? You are working with different agreements, NAFO and the other ones.
Mr. Bevan: Yes. Unlike some of our regulations, we have the Atlantic Fishery Regulations and the Pacific Fishery Regulations. These are derived from the Coastal Fisheries Protection Act and are the same relevant authorities. For example, when we didn't have an agreement with the American tuna fleet, the Americans on the albacore tuna, the same authorities applied in the Pacific. They had to apply to the minister to enter our waters and ports. The minister then would take a number of factors into consideration. It's the same kind of thing on both coasts.
If we are getting along with a country and are cooperating, that's a different circumstance than if there are problems with conservation, et cetera, but the same legal framework applies.
Senator Raine: There are parts of the ocean, though, that are sort of nobody's land; is that right?
Mr. Bevan: There are parts of the ocean that are subject to problems where overlapping jurisdiction doesn't apply. For example, you get the doughnut hole, the peanut hole and these odd sods that are surrounded by economic zones but are not covered by an economic zone.
What we are trying to do in the international community is cover the whole globe, if you will, with the RFMOs. So there is more work done, for example, on the Pacific. We have the North Pacific Anadromous Fish Commission, which covers salmon but not other fish. That gap was brought to some international discussions. We are moving to try and create a new RMFO that will cover off that gap.
There are tentative discussions as well, nothing official, but people are looking at what happens in the Arctic if there is ice-free time. Should we not do something to prevent people from moving in and fishing before there is a decent process in place?
Those are the kinds of things being done to prevent the situation of a free-for-all.
Senator Raine: I think all of us are very happy to see Canada a little bit out front in this effort, so I congratulate you.
Senator McInnis: I agree with this bill and I agree with what you are doing and the billions of dollars, probably, that you will save as a consequence of catching these IUUs.
Proposed subsection 7.6(2) of the bill reads:
A protection officer may exercise the powers referred to in subsection (1) without a warrant if the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practical to obtain a warrant.
In other words, I take it they are at sea. You want to get on a container vessel or whatever. In the protection officer's mind the conditions are there, but who is adjudicating on this to say whether you go or you don't go? I just need clarification of that.
Mr. Bevan: Those would be fairly unusual circumstances. If the fish is stationary in a warehouse and there's an opportunity to get access to a person with the authority to issue a warrant, then that's fine. If you are on a wharf in the middle of the night and somebody has come in and landed, or if you are dealing with somebody who has done an incursion into our zone, we are going to take action. That would be a circumstance where you are at the edge of the 200-mile limit, the vessel needs to be dealt with and you may not have the ability to get a warrant right away. You would take action.
Generally, if you have fish on the move that you have strong reason to believe have been illegally caught and that if you were to go to get a warrant would disappear on you, those are the kinds of circumstances envisaged by that. But if the fish are in a container in a warehouse, a controlled environment where you wouldn't expect them to be, and you may lose the evidence and the capacity to act, you would go get a warrant.
Those are the kinds of provisions that currently exist in the Fisheries Act. Fisheries officers are authorized under the act to go into a number of premises if they believe fish are in there and that they need to deal with some illegal activity, whether domestic in that case or in this case whether it's something from an international source.
Senator McInnis: I realize that, but it strikes me that it is fraught with danger. You have a protection officer out there. I realize what you are saying, but is this how our judicial system is supposed to operate?
I know that this takes place; it takes place all over the place. Anyway, it's a practical example that you have given.
Mr. Bevan: They will have to face a judge at some point and be accountable for their actions.
If they've done a search and seizure or anything of that nature that they can't justify under Canadian law, it will not be supported by the court.
[Translation]
Senator Robichaud: Do border officers have that power?
Mr. Bevan: No.
Senator Robichaud: We have the same problem in agriculture. Border officers can uncover a problem, but they cannot stop the shipment or whatever is going on. And by the time we can set about finding them, they have disappeared into thin air.
Mr. Bevan: I am not aware of all the powers the officers have. Perhaps they currently do have those kinds of powers, but I am not sure. I think it would be better for me to answer your question later when I have had the chance to find out the information. I do not know what kinds of powers the officers have.
Senator Robichaud: I thought I understood Ms. Bouffard to say that they do not.
Ms. Bouffard: I would like to clarify that the bill does not propose powers for border officers but for fishery protection officers, so that they can work with border officers to help them deal with issues of investigation and verification. However, we do not know the extent of the powers that border officers have.
Senator Robichaud: But it would still be something worth checking, would it not?
[English]
The Chair: Senator Seth has a question. After that we will finish up the questions, unless something pops up. We will go to clause-by-clause consideration after a break for a couple of minutes, just to let everybody know.
Senator Seth: Thank you for giving us this knowledge. It is very interesting what's happening with the fishing system in Canada and how we are protecting ourselves.
What happens to a vessel found to be fishing illegally? What are the penalties?
Mr. Bevan: There are substantial penalties. For people coming into our zone, the vessel will be apprehended. They will be brought into Canada to face charges and there will be substantial potential fines on conviction. On indictment, it is a fine of up to half a million dollars and on a summary conviction a fine of up to $100,000. A second conviction would be double those figures.
I can tell you that fines levied in the past have in fact bankrupted companies, so there is no question that the fines and consequences are significant. If they lose catch as well, that again is a very significant consequence. Your vessel is taken out of action, you are subject to a big fine and you are subject to other losses. Those have accumulated in the past such that the company conducting the illegal activity has gone bankrupt.
Senator Seth: That's interesting.
To your knowledge, who do you think is the main person, country or company who will be fishing illegally fishing in Canada? Who do you find more?
Mr. Bevan: We don't find, that is to say, foreign vessels. We have our own enforcement issues to deal with in terms of either poachers or fishermen who are legally licensed but conduct activities not covered by their licence conditions domestically.
Putting that aside, in the past we had problems from various NAFO member states, but the situation has changed quite dramatically over the years. In NAFO there has been much more of a conservation push from some member states, particularly the European states, and they don't tolerate activities that were almost supported in the past. So there is very much a situation where we set a TAC — probably too high in NAFO — we don't monitor enough and the catch would exceed the TAC. Moreover, there wasn't enough enforcement done by the contracting party to NAFO to keep their people in control.
That has now changed dramatically. There has been a reduction in effort commensurate with their quotas so they don't have so much effort in there that the only way the vessels can make money is to cheat.
We are now seeing that it is others. It has moved to flags of convenience from somewhere else, or it's low-value vessels with crew from distressed areas, such as in Southeast Asia, that are participating in these things. You're not seeing as much of the people who are associated with what could have been legal activity but cheated in order to increase their profits. That's not taking place as much anymore.
As a result of action, a number of vessels were arrested in the 1990,s and that convinces people to go looking elsewhere. They don't want to risk coming across problems in Canada if they can go somewhere else.
Senator Wells: When the EU and other contracting parties started to comply, when did those significant changes happen?
Mr. Bevan: We had compliance after certain events in the 1990s, and then that deteriorated until we had significant problems in early 2000 and 2004. There was a turnaround and things started to generally improve over the subsequent number of years. There were incremental improvements every year, continuous now since 2004 and certainly in the latter half of the 2000s and going forward. It's been improving.
The Chair: We know it has been improving because for many years Senator Baker was on the radio down home every day complaining about the foreign vessels and he's been pretty quiet the past couple of years, so hopefully that's been an improvement.
Thank you, Mr. Bevan, and your officials for being here this evening. Your wealth of knowledge is easy to understand from your discussion. We reserve the right to call you back again for something else, but we want to thank you for your time this evening.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-3, An Act to amend the Coastal Fisheries Protection Act?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2, page 1, carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: I feel like I'm in church on Sunday morning.
Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 11 carry?
Hon. Senators: Agreed.
Senator Robichaud: What's clause 11, Mr. Chair?
The Chair: Senator Robichaud, you should have read the bill.
Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 14 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 15 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 16 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 17 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 18 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 19 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you very much for your cooperation, members, and we'll see you next Tuesday.
(The committee adjourned.)