Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue No. 15 - Evidence - May 9, 2017
OTTAWA, Tuesday, May 9, 2017
The Standing Senate Committee on Fisheries and Oceans, to which was referred Bill S-203, An Act to amend the Criminal Code and other Acts (ending the captivity of whales and dolphins), met this day at 5:05 p.m.. to give consideration to the bill.
Senator Fabian Manning (Chair) in the chair.
[English]
The Chair: Good evening, everybody. My name is Fabian Manning, a senator from Newfoundland and Labrador. I'm pleased to chair this evening's meeting.
I would like to ask our senators for a moment of indulgence. I received a note, as you may have as well, from our principal clerk, Blair Armitage, and I think this is fitting, as there are many times we hear negative stories.
Blair sent a note about basically a contact person for witnesses before the committee on Bill S-203 who called him out of the blue to make the point that the person who should know, being Blair, was aware that Max Hollins, our clerk, is maybe the most helpful person she has ever dealt with ever. She had only had dealings with provincial committees before, and she cannot say enough good things about his patience and the insight he provided with respect to their appearance, considering that, for any organization, legislation only ever impacts them or involves indirectly on an infrequent base. To sum up, the mysterious work we do may seem quite daunting to engage with. Your approach to making their experience less daunting or mysterious exemplifies the impression we want to leave on all members of the public.
Well done, Max.
Hon. Senators: Hear, hear.
The Chair: The committee is continuing the examination of Bill S-203, An Act to amend the Criminal Code and other Acts (ending the captivity of whales and dolphins).
I want to ask if the senators would introduce themselves first, and then we have a video link with our first witness.
Senator Munson: Senator Munson from Ontario.
Senator Sinclair: Senator Murray Sinclair from Manitoba.
[Translation]
Senator Forest: Éric Forest, from the Gulf region of Quebec.
[English]
Senator Plett: Don Plett. I'm from Manitoba.
Senator Christmas: Dan Christmas from Nova Scotia.
Senator Gold: Marc Gold from Quebec.
Senator McInnis: Tom McInnis from Nova Scotia.
The Chair: Thank you, senators.
Our first guest this evening is Professor Michael Noonan, Professor of Animal Behaviour, Ecology, and Conservation, Canisius College.
We understand you have some opening remarks that you would like to make.
Michael Noonan, Professor of Animal Behaviour, Ecology, and Conservation, Canisius College, as an individual: Thank you, Senator Manning.
May I also add my praise for Max Hollins. He is a phenomenal representative of your committee.
The Chair: Everybody calm down. He is getting a big head on him now.
Mr. Noonan: I won't do more.
The Chair: We appreciate the remarks.
Mr. Noonan: It's a privilege, senators, to be able to provide testimony and to offer my thoughts on the proposed bill.
Let me start by offering my praise for these entire proceedings. I am extremely impressed and gratified that this debate has centred almost in its entirety on the issue of animal welfare. I cannot say how wonderful it is that the federal Government of Canada is deliberating on an issue focused on how we humans should best relate to other species. I offer my highest praise and regards to all of you for taking up this matter so seriously.
Nevertheless, although I support its underlying motivation, I want to speak against the approach taken in Bill S- 203, and I have three reasons.
My first concern has to do with the coherence of the position taken by the bill. This is because the singling out of cetaceans for special exemption is unjustified by science.
I agree with Dr. David Rosen who testified earlier before this committee. Please recall that his commission carried out an exhaustive study for the Province of Ontario, and they found no justification to separate out cetaceans for separate exclusion.
This standing committee has heard arguments that cetaceans are unique in that they are aquatic, intelligent and socially complex, but numerous other species can be similarly described, sea lions and walruses, for example. And regarding the latter two criteria, a great many carnivore species and nearly all primate species are similarly intelligent and socially complex. Through this bill, would not the nation of Canada go on record in saying that it's criminal for a zoo to hold a breeding population of dolphins, but it is okay to maintain a captive population of wolves, bears, gorillas or chimpanzees?
Even if one were to accept the proposition that this bill would at least cover some species, would it not set the precedent that hereafter this body and Canada's federal Criminal Code will be the place to adjudicate such concerns? Would the Senate next be in the business of working its way through the various holdings at the Toronto Zoo, deciding at this level of government which particular species are or are not acceptable to hold in captivity?
In evolutionary taxonomy, the hippopotamus is related to whales and dolphins. I'm not bringing this up as a silly example; the hippopotamus is aquatic, highly acoustic and socially complex, and it is genetically related to whales and dolphins. On what basis would this government declare that it is morally imperative to phase dolphins out of zoos but not hippos? Looking from the outside, it appears that this bill is unfairly targeting just two Canadian zoos.
My second concern is that this bill paints with too broad a stroke. There is no debate about the poor track record with holding orcas in captivity both in Canada and around the world. But even within the narrow taxon of cetaceans, evidence suggests there are big differences across species and how well they fare in captivity. The argument has been offered that one just has to look at the poor survival rate of orca calves as evidence of poor welfare in captivity. Well, if so, what conclusion should be drawn by the high calf survival rate in the beluga collection at Marineland?
Beyond that, my own research team has collected behavioural measures on the belugas at Marineland that can be interpreted as indicating relatively benign conditions within the context of comparing them to other zoo holdings. Should we phase out captivity for orcas in anything like the present conditions of captivity? Sure. But it is not clear that a similar argument can be made for belugas.
My third concern has to do with the fact that the bill will be agnostic with regard to any improvement or corrections made by the zoo industry in the future. The zoo community is very clearly in the process of evolution — just consider the nature of enclosures and conditions of zoo animals decades ago with those today, and that is true for the seaquarium subsector as well. Not long ago, the Vancouver Aquarium underwent a major renovation of its cetacean facility, and Marineland, after its own experience with cetaceans in small pools, went on to build pools 20 times larger than their earlier ones — pools that are still among the largest in the world. Should not these developments be recognition that the seaquarium industry can and does respond to concerns?
Even if one were to accept all of the negative allegations as true and that there are problems in seaquaria that continue up to the present day, why respond by preventing such organizations from getting it right in the future? Why not give the two present Canadian seaquaria the opportunity to continue to evolve?
And moreover, suppose that there were a future entrepreneur, perhaps in the Maritimes or on the West Coast in B.C., who had a design for a new kind of seaquarium, one that clearly met concerns about animal welfare and that had education and conservation central to its mission? Why would that not be allowed in Canada?
Dr. Naomi Rose spoke earlier about the possibility of coastal sea pens as retirement facilities, and I do very enthusiastically support that notion. But suppose a future entrepreneur in Canada proposed an enormous sea pen or some other form of enclosure not as a retirement facility, but as a new, more enlightened seaquarium. Why would that be banned?
As an alternative, I recommend a standards-based regulatory system. This government should empower a body to set standards that would apply to all animals held in zoos, both terrestrial and aquatic, and an appropriate body should be given the mandate and the capability to enforce these standards.
Governments have a long track record of establishing standards and holding segments of our society to them. That's why we do not have shoddy bridges and unsafe automobiles. Even in many of the ways in which we deal with animals, for example in the food and the pet industries, governments have safety and welfare standards that must be met.
In similar ways, I hope that this body does go on to insist that Canadian zoos and seaquaria get it right, but the pressure should be applied to all Canadian zoos so they can evolve into better and better places. The zoo community, including the two Canadian cetacean facilities, would respond by moving in a desired direction. I advocate that you allow them to respond by doing exactly that, and that you do not close them pre-emptively without giving them a chance to do so.
Thank you, senators, for your kind attention and for allowing me to offer these thoughts.
The Chair: Thank you, professor, for your opening remarks. We will go to our questions.
Senator Plett: Welcome Mr. Noonan, it's nice to see you again. We had a wonderful meeting at the Marineland facility a year or so ago, and I remember many of the comments that you made at that time. I want to follow up on a few of them.
You answered, to some extent, the question that I'm going to ask, but I'm going to ask it more specifically and maybe you can answer more specifically. When I visited Marineland, you were working and studying belugas, and you made a comment to me regarding animals in human care that was something to the effect of you were perplexed that activists were targeting the keeping of cetaceans in human care because, of all of the animals kept in captivity, cetaceans fare among the best. Would that be a fair characterization of what you said? If so, would you elaborate a bit on that?
Mr. Noonan: It's nice to see you again, Senator Plett. Just for the others, Senator Plett did visit Marineland at a time that I was there and already present. I've been an active researcher at Marineland of Canada for the past 18 years.
I remember our conversation, senator, and the theme of my opening statement was that it seems to me unfair to specifically target cetaceans and to separate them out under the law compared to the holding of other species in captivity, not that I'm perplexed that animal welfare advocates are concerned about animals in human care. Of course they should be. There are very serious concerns. I don't want to be on record at all in speaking against those concerns.
Now, regarding the comments I made specifically about cetaceans, senator, you will recall that we were standing by the beluga pools. You asked me, and I was speaking directly about the implications of the measures I've been collecting on the belugas. I didn't mean specifically to generalize across all of cetaceans. I'll concede, and in fact, it's undeniable that the track record with orcas is very poor. I'll repeat again that holding orcas in anything like the facilities that exist not just in Canada but across the world should be phased out, and that process is already under way.
This bill, I think we all agree, will not affect that because Vancouver Aquarium has already announced its intention to not hold orcas, and Marineland is going to grandfather in its last remaining orca and then that will be phased out in Canada. In the United States, it's on its way out as well.
So that should be the case, and senator, I was speaking specifically about the belugas.
Now, in my research, the measures we have obtained are comparable, as I speak to welfare, to those that are obtained for other species, say at the Toronto Zoo or at other zoos in Canada and in the U.S. So, that was my comment, senator. It was directed to belugas, not cetaceans in general.
Senator Plett: Of course, you're absolutely right. The only reason Marineland has an orca there is because there is nothing they can do about moving it. They can't ship it out, they can't bring another orca in, and I understand that. My question, I guess, should have been maybe more directed at belugas and dolphins as opposed to cetaceans in general.
We had a witness in here last week from Vancouver Aquarium. We have had activists and others telling us how sad these animals are in captivity. We had a witness last week from Vancouver Aquarium that said that in his opinion, they were, in fact, very happy and very content. Again, I don't want to put words in your mouth but I recall you saying there was no evidence — and correct me if I'm wrong — that they were not happy. Could you elaborate on that?
Mr. Noonan: Sure thing. I'll go even beyond that.
Just to correct you, Senator Plett, you just introduced this question by referring to cetaceans and dolphins. I have done work with the dolphins at Marineland and at other facilities, but I do not have similar data that are relevant to welfare for the dolphin. My background is primarily with the belugas. I have done work with the orcas that were at Marineland but much less so with the dolphins — not none with the dolphins but much less so.
Regarding the belugas, we judge welfare in many ways. We judge welfare in the absence of negatives in animal welfare science, which is actually quite a developed science in this day and age, and one certainly wants there to be the absence of negatives: the absence of injury, the absence of disease and the absence of signs of stress. We do look at that in my research program, and there are very few signs of stress in the belugas in the Marineland facility.
I would offer that normally in animal welfare we take into account reproductive rates. Animals who are under extreme stress do not usually reproduce or engage in reproductive behaviour, but the high reproductive rate in beluga is an indication that they are not under high stress. They are able to engage in quite a bit of the normal behavioural repertoire, not all of it, but certainly when you compare to other species held in other zoos, a fairly high percentage of primarily a great deal of social behaviour goes on in these pools.
Lastly, my research has revealed that the belugas at Marineland play a great deal. Animals usually play when their welfare is good. A high rate of play is usually taken by most animal welfare advocates as an indication of high welfare. These belugas play a great deal — not occasional play. They are engaged in play a lot.
[Translation]
Senator Forest: Professor Noonan, thank you very much for your highly insightful presentation. I thought it would be a good idea to set rules and standards that would improve the conditions of captivity in those establishments. We currently note that the establishments are self-regulating. We were told that the association conducted its own inspections. Don't you think there is something of a conflict of interest in that situation? That is the first part of my question.
Are you comfortable with the fact that the bill contains a provision that allows keeping the individuals that are already in captivity, but prohibits the capturing of wild individuals in their natural environment for purposes of exhibitions or shows? Do you agree with that part of the bill?
[English]
Mr. Noonan: Forgive me, Senator Forest, I'm sorry, but what was the last part of that two-part question?
[Translation]
Senator Forest: The bill contains a provision that prohibits the capture of individuals in their natural environment to be kept in captivity. Do you agree with that part of the bill?
[English]
Mr. Noonan: Yes, in the sense of the goal. One of the problems I have with the bill is that it's in the Criminal Code and not in civil legislation.
Zoos around the world, and especially in North America and Europe, are largely done with capturing wild animals for captivity. It's not like it never happens anymore, but it's the goal of nearly all zoos to no longer bring animals in from the wild.
I am impressed with the way this bill does grandfather in all existing facilities. If these facilities are to be banned or phased out, it's a very gentle way to do so. I'm also impressed that it doesn't rule out dealing with injured animals or animals that are compromised, rescued animals. I think that was enlightened that they did that.
Regarding the first part of your question, I have very high regard for CAZA as an institution, but you're correct that it is the industry's own organization so there is an element of self-regulation. In the U.S., we have AZA instead of CAZA, and it also does very good work. The standards set by CAZA and its mission statements are really very strong and very aspirational. It's growing as an organization. It keeps getting better as the years go along. It is still understaffed and needs to grow, but yes, it should not be just CAZA. There should be provincial legislative standards, but I would be delighted if there were federal legislative standards.
I can cite the U.S. has something like that already. It's imperfect, so I don't know that I would hold up the U.S. system as ideal in this regard, but there is the U.S. Animal Welfare Act at the federal level, and then of course there are state regulations below that.
[Translation]
Senator Forest: It's actually sort of what you suggest to us in your presentation, when you recommend that we set rules and standards to regulate this activity that would be enforced by CAZA.
[English]
Mr. Noonan: That is precisely what I'm proposing. CAZA already has its own standards and it simply has to continue to evolve to enforce them with greater and greater vigour. But no, I'm proposing that the federal government would set standards and also empower a federal body that would enforce those standards, and maybe it would be CCAC, the Canadian Council on Animal Care, but I don't know. I hope I just didn't make somebody get stressed because I proposed new work for that organization, but something like that.
In the U.S., it's the USDA, the Department of Agriculture, that enforces the Animal Welfare Act in laboratories, in the food industry, in the zoo industry and elsewhere. Again, I'm not holding that up as a model. I think there are flaws with the U.S. system.
But no, senator, absolutely proposing standards not for CAZA but for a Canadian governmental organization.
Senator Gold: Dr. Noonan, I very much appreciate your focused and measured commentary. You have advised us where your area of expertise is and isn't. I appreciate that. This debate is rather polarized at times, and we appreciate the tone of your interventions and your contribution.
We've heard evidence on both sides about the impact of captivity on cetaceans generally and on a particular species. Sometimes one side is characterized as scientists and the other side as activists. I just wanted your view as to whether or not there is credible research on both sides of the issue — the issue being that captivity can impose some harm to some aspects of animal welfare.
Mr. Noonan: Senator Gold, no question. I'm delighted that you and all the rest of the Senate recognizes that the issue is very polarized and there are excellent arguments on both sides. I love the fact that all of the arguments centre on and advocate for animal welfare. The answer to your question is undoubtedly that captivity imposes welfare issues.
The central theme that I want to emphasize is that it is not unique to cetaceans. Does captivity not impose animal welfare issues on every animal in the Toronto Zoo? Not only that, but does it not impose on every animal in the food industry? Does it not impose animal welfare implications for animals in the companion animal industry? We know there are all kinds of welfare concerns for people who are less ideal or enlightened pet owners. Just consider horseback riding and all the animal welfare implications there, or circuses.
I am interested in having zoos evolve and continue to evolve with animal welfare as a high priority in the zoo world, but this doesn't just apply to the zoo world. My main point is that it doesn't just apply to these two particular Canadian organizations that will be affected by this bill. It seems to me incoherent to say that this is a large concern for these species, and criminal for these species, but not so for other animals in the Toronto Zoo or in the food industry, et cetera.
Senator Gold: I would be tempted to say, "Let not the best be the enemy of the good,'' but I will let that pass. The bill before us — which is not a government bill, actually, but a private member's bill — has been focused on cetaceans, and that's the issue we are seized with.
On the issue of welfare, you said in your comments and suggested in your written submission that the reproductive success of belugas in captivity is one measure of animal welfare. I may be wrong, but I understand that dogs in puppy mills also reproduce at a relatively high rate. I'm not sure, though, that is necessarily a sign of their welfare. Am I wrong? I am not asking you to be a specialist in puppies, but I would like to understand a bit better why that is a measure of welfare when it appears that with other species it may not be.
Mr. Noonan: You are quite right. In animal welfare science, people have advocated and do use two dozen different indices of welfare, but it is true that reproduction and reproductive behaviour is one of those indices.
The example you gave is a perfect one. Even animals in fairly poor welfare conditions can go on to reproduce, but in extreme stress they do not. Reproduction is taken as an indicator of at least the absence of extreme stress.
I raised this because I have had the benefit of hearing some of the previous testimony before your committee and it has been brought up in previous testimony, to just look at the poor track record of reproduction in orcas. I don't dispute that. The poor track record is of great concern. Orcas in captivity are of great concern to me and to you, and they should be. Not that the other animals aren't of great concern, but it seems to me that you can't simultaneously take the argument that the poor track record for orcas counts, but success in the breeding program at Marineland doesn't count. That doesn't seem fair. It doesn't seem valid.
Senator McInnis: That was a wonderful presentation.
How important is space in terms of the captivity of these cetaceans? I have read that you have talked about moving toward shoreline facilities, yet in the letter you wrote on February 16 with respect to Marineland, you said there were absolutely no difficulties in terms of stress; psychologically, the mammals were fine. I recall reading you talked about moving toward shoreline facilities presumably because there would be much more natural habitat. Do you want to comment on that?
Mr. Noonan: I do, very much. Thank you, senator. First, I am delighted that someone has actually read one of my publications. I am thrilled. I have a reader.
Senator, of course, space is important. In the letter I submitted earlier, dated in February, and in my opening comment this evening, I didn't address space. I'm saying that there are indices that I have measured at Marineland that indicate to me certain conclusions, but I didn't measure space. In fact, I know of no study about space variations in zoo enclosures that is specifically focused on cetaceans and their welfare. However, logically it makes sense that animals need space, and more space is usually better. I do endorse much larger facilities.
I also agree with Dr. Whitehead, who testified earlier. The pools that whales and dolphins occupy are extremely small fractions of their natural home ranges. I don't want to sound like a broken record, but look at the wolf enclosure in the Toronto Zoo. It is a small fraction of the home range for the wolf, or the bison, in any of your Canadian zoos. That is not unique to the holdings in the two seaquaria that are targeted by this bill.
Space, it turns out, has been studied extensively in animal welfare science for farm and laboratory animals. The conclusion is that space does make a difference, but it is probably the least of all the important factors.
Environmental complexity: What does this mean? Suppose we take the present pools at Marineland or Vancouver Aquarium and double them or increase them tenfold but otherwise not change them. That's one alternative. The other alternative is to leave them the same but make them environmentally more complex, like a modern zoo, like the Toronto Zoo does to make their enclosures much more naturalistic. It turns out that making them more naturalistic has a larger benefit in farm and laboratory animals than just increasing space but otherwise leaving the enclosure barren.
Then there are other factors, like social complexity. I don't have a study on this because there isn't a way to study this, but I suspect that the considerable success that Marineland has with their beluga program is because they have a fairly large collection. Belugas in nature live in large groups, and they are held in large groups in Marineland. I would advocate that the welfare of a lone beluga in a larger pool would be lower than the welfare of a beluga in a smaller pool — I don't mean a small pool, but in a smaller pool — in something like the large complex groups that are held in Marineland.
One last factor shows up in the animal welfare literature focused on farm animals, namely, the compassion, training and devotion of the animal caretakers. That counts much more than space does.
Many factors lead to welfare. I want more space. If I could, I would move the animals to much larger facilities, but not just for Marineland; I would do that for every animal at the Toronto Zoo.
By the way, for those of my colleagues who I work with and greatly respect at the Toronto Zoo, I apologize for keep using you as an example. Senators, you should know that I have been to more than 200 zoos in my studies, and the Toronto Zoo is in the top 10 zoos of the world. I am just using it as a comparison for a really excellent zoo. That's the theme by which I keep mentioning the Toronto Zoo.
They will argue immediately that they would like to double or increase the size of their enclosures tenfold. I am sure the Toronto Zoo would love to do that, as would every zoo. Space matters, but it's not what science indicates as the main point.
Senator McInnis: Thank you.
Senator Christmas: I appreciate your focus, Dr. Noonan, on animal welfare. I also appreciate your comments about allowing the industry to evolve. In your statements, you call it a new kind of seaquarium or a more enlightened seaquarium.
I am curious, while we have a few moments with you, what is your vision of the future evolution of the industry? What do you see as a facility that could evolve into the best animal welfare of cetaceans?
Mr. Noonan: My vision wouldn't just apply to cetaceans; it would apply to zoos in general.
I am familiar with parks. I just came back from Alberta where I was at Elk Island National Park. The bison are held in a paddock that is hundreds of acres; forgive me, it may even be 1,000 acres. It's a paddock. I recently had a class of mine at the Toronto Zoo, and there's a paddock of the same subspecies, wood bison, in a five or so acre paddock. Forgive me if I am off here on either facility.
Most people would argue that the animals are managed under human care in a national park in Alberta are still enclosed to a degree. In a way, that is really on the same scale as the ones at the Toronto Zoo. The ones at Elk Island National Park in Alberta are better off, by most of the measures of welfare, but not all measures. The ones in the Toronto Zoo have fewer diseases, and they are better protected there from predators and the elements.
For cetaceans, perhaps it would be a shore-side sea pen. I love that idea. I would love it if it were a very large sea pen measured in kilometres instead of metres, but it need not be. With advancements in technology and architectural science, who knows where we will be — more complex, socially more relevant, even opportunities for semi captivity, where there is a great deal more choice afforded to the animals. I hope there was an answer in there somewhere, Senator Christmas. I hope that reveals something of my thoughts here.
Senator Christmas: You certainly did, Dr. Noonan, and I appreciate your comments.
Senator Sinclair: Thank you, Dr. Noonan, for your appearance here today and for your testimony.
I had never heard of Canisius College, but when I did a little research and found out that Gerry Meehan was one of your graduates, you immediately went up in stature. He was the coach of the Buffalo Sabres.
In the February 16 letter that Senator McInnis referred to, you talk about four areas of data that come out from your research program. Behavioural indices of stress in Marineland's belugas are very low, is your first point. Is this finding in a published paper you have issued?
Mr. Noonan: Senator Sinclair, first, forgive me, but I am aware of your work with Canada's TRC, and I want to say it is a privilege to make your acquaintance here today.
Second, I am so glad you mentioned Canisius College. Just so you know, senators, Canisius College is located in Buffalo, New York. "College'' in the U.S. means university, more or less. It's a small liberal arts university in Buffalo, New York, only a few kilometres from the border with Canada, and that affords me the opportunity to be a researcher. My students and I cross into Canada almost every other day and are in Ontario for that reason.
My track record at Marineland so far is I have 46 conference presentations and four peer-reviewed publications. My more recent work is on belugas. Previous to the last few years, my primary focus was on the killer whales at Marineland, so only one of my published papers so far focuses on belugas, and that's on reproduction, not on stress.
Senator, I also want to say that my research isn't specifically focused on stress; it's focused on their social behaviour. However, in collecting the social behaviour, I offer those four points that I mentioned earlier. I am not specifically studying stress in belugas, but I offer the fact quite honestly that when I am looking at playing, animals, including human animals, don't play a lot when they are under stress. By that, I mean the beluga averages four or five play events per hour at Marineland. Their collection is large enough that we see approximately 200 playful events per hour in the population at Marineland.
Think about this. When you have an animal who is in distress — imagine an animal in some dreadful condition — when they are not interacting with humans, being fed or whatever, they are often staring or sullen or looking at the door or pawing at their enclosures. They are not playing. Very often animal welfare advocates say this.
Look at the animals when they don't know you are looking and when you are not distracting them. What are they doing? These animals will pick up a pebble and spit it out with their mouth, and another one will catch it and spit it back. They play keep-away and catch. They blow bubbles in the shape of rings and chase after them. In other words, they make their own toys, chase after the rings and then distort the rings in obviously playful fashion. They blow hoops of bubbles and then swim through the hoops.
I want to be clear: I'm not saying that the conditions at Marineland are ideal. I would love to enact a whole series of changes, but senators, you will agree that animals who are playing that much do not sound like animals whose welfare is very poor.
Senator Sinclair: The available information we have looked at suggests that the majority of the belugas at Marineland have been purchased from a Russian source. I don't know what the numbers are. Do you have any information about that?
Mr. Noonan: I'm not employed at Marineland and I am not part of their management team, but my understanding is that the adults came from Russian waters. I believe there is no question about that. I think the majority — I don't know if it's the majority anymore. They have had so many born in captivity that there may be at a tipping point where there may be more captive-born than wild-caught. I could get that if you give me a minute. I have a few notes here.
The answer is yes regarding Russia, at least to the best of my understanding — I haven't been involved in that — but I don't know if they are the majority anymore.
Senator Sinclair: My question was going to the issue of whether or not your studies have shown any behavioural issues between those animals that are captured as healthy animals and those animals that are brought into the aquarium as a result of being rescued animals. Does your research show that there are any behavioural differences between the two groups?
Mr. Noonan: Not between those two, senator, because I do not study rescued animals, and there aren't rescued animals at Marineland. I would only be able to compare the ones that are wild caught with the ones that are born in captivity and are the descendants of those that are wild caught.
On that matter, I have not noticed a difference, but it is confounded by the fact that in my study group, the ones that are wild caught are the adults and the ones that are captive born are still juveniles. There are adult and juvenile differences. In my study group and at Marineland, there aren't captive-born adults versus wild-born adults. With the ones that are captive born, some of them are reaching adulthood now at Marineland.
I made that answer too long. Senator, no, I don't have anything to say on that specific question. That is the answer I should have given.
Senator Sinclair: Thank you for getting to that point.
Senator Munson: Professor, thank you for being here. I have a basic question. You have alluded to the principle of the criminal aspect of it all in Senator Moore's bill. Is there something that could be put into place that wouldn't have a criminal element to it if these places were found in breach of not caring for animals properly? You alluded to it a bit, but is there a way of getting around this without using the word "criminal?''
Mr. Noonan: Forgive me, but isn't that a legal question? I don't claim to be an expert on anything and definitely not on the law. Isn't it normal for animal cruelty issues to be addressed as criminal matters? In fact, I believe earlier you had testimony to that effect. Other matters are more in a civil regulatory domain.
It seems to me unusual and, frankly, inappropriate. What did we hear in an earlier session? I did listen in. We heard that the Criminal Code is intended to reflect our moral values. They delineate things that are morally reprehensible. We say things like it is morally reprehensible to kill or to assault somebody, but we are saying it's not morally reprehensible to yell at somebody or write nasty letters to somebody. We are reflecting our moral judgments. We are saying it is morally reprehensible to hold dolphins and breed them in captivity. It seems to me so inconsistent and indefensible to say that it is a moral crime for dolphins but not for wolves or chimpanzees.
To your question, do I have a route to imagine this not taking place in the Criminal Code? Sure. If I understand the distinction between criminal and civil codes, then I would establish a civil law that establishes a governmental or federal body that would be empowered to set standards. The Senate wouldn't set the standards, but it would empower an organization with expertise, duly constituted, to set standards. Then it would need to have an enforcement arm. It would need to have the teeth to make these more than just aspirations.
Do you know what happens when you see shoddy bridges being built? You don't shut down the bridge industry; you pass regulations and say if you don't pass inspection, you will not be paid or you will not be allowed to have this bridge. If you don't make safe cars, you will not be allowed to sell them in Canada. That is the model I am advocating.
I want to be clear on something. I hope that my colleagues who strongly advocate animal welfare would advocate extremely high standards. My colleague David Rosen and his commission for the province of Ontario advocated high standards. They could even be higher, and they should be. They should be graduated so that the zoo industry can continue to evolve.
I just came back from a world congress on zoo animal welfare, and all the talk was about continuing evolution and advances in animal welfare science. I would join that process and enforce it and push. I advocate that you push. I admire Canada for taking this up, and I advise that you push for high standards of animal welfare.
Senator Munson: Thank you for that great deal of clarity for me in your answer.
I have a quick philosophical question. I noticed where the Ringling Bros. and Barnum & Bailey evolved after 146 years, and in 12 days from now, they are shutting everything down because revenues are declining and so forth. It's not worth it anymore after 146 years. These are not zoos, but they are circuses with animals.
Philosophically, when you look at the work being done at Marineland and also at the Vancouver Aquarium, is there a need to have a show or a spectacle for people to watch what you researchers do in science, in looking at these animals of the sea, or is there a better philosophical way of looking at it and a practical way of having your research done privately in bigger streams, as you describe, where these animals are cared for? Maybe from time to time, in that wilder environment, people can come and see them, but it doesn't have to be paid for, and let's take a look at baby beluga doing things, going round and round in a small pool. I am curious about why they need to have this.
Mr. Noonan: I love that question. That gets to the very heart of the issue, regardless of Bill S-203 or the Criminal Code or however else it was approached. It boils down to our laws and behaviours. The Ringling Bros. reflects the evolving, more enlightened attitude by our citizens towards other species. I am delighted by that and am riding that wave along with you all as that goes on.
I think it may be a false dichotomy, senator, between the zoos or sea aquariums of today and what you describe as a wilder, evolved sea pen. I see it as part of the same continuum, but a different sort of zoo, more semi wild.
I was there a few weeks ago, so I will use Elk Island National Park as an example. It's not that large of a wild space. The San Diego wild animal park — not the zoo — is a very large enclosure where I once saw a rhino run in a straight line for about five minutes. That is how long its enclosure was. It wasn't as big as the bison paddock in Alberta, but it wasn't on the order of magnitudes smaller. These blend into each other. I don't see them as dichotomies.
To your philosophical question, I'm glad you mentioned that because a lot of the previous committee hearings focused on the value of the research and the education component of zoos. I can speak to that, if you wish, but it really boils down to whether we, as a society, consider it acceptable to have zoos. Marineland and the Vancouver Aquarium are zoos. They are sea aquariums, but they are in that general domain. Zoos do many things, but they are primarily a leisure activity for our citizens. Is it acceptable for us to have zoos? That's a good question.
Human interaction with an animal is, essentially, always for the human benefit; it's rarely directly for the animal benefit. When it's strictly for entertainment and/or leisure — I offer, as an example, horseback riding — then the cost- benefit analysis, where the cost is to the animal and the benefit to the human isn't food, sustenance, research or education, it's leisure, then the cost to the animal should be extremely low.
Philosophically, in all of our uses or interactions with other species, there is a cost benefit. When the benefit is really high, we can discuss medical research or food. If the benefit is high, then we can maybe tolerate, ethically, fairly high cost to the animal. We can at least have that discussion. But when the benefit is low — and I would argue that leisure is relatively low — the cost ought to be awfully low.
I would assert that the welfare standards in zoos ought to be very high, but as I just said, the zoo community is all talking about animal welfare, raising it to the highest possible priority in their holdings. If the holding is done right and the animals are in conditions where they can engage in a lot of their natural behaviours and they also don't suffer from many of the hardships of the wild, then the welfare is, arguably, pretty good.
Again, I feel like I'm picking on Elk Island National Park, but if we can allow for Elk Island National Park to put in an enclosure that prevents the movement of bison in Alberta to give us the leisure of going to a park and enjoying ourselves, then how can we not allow Toronto Zoo to do the same thing? Toronto Zoo should evolve into a larger enclosure, and I think the zoo community is in the process of doing that.
There is a danger of asking a professor a short question; you get a long answer. I'm listening to myself, and really wish I was being more succinct.
Senator Munson: I find I got a good answer. Thank you.
The Chair: Thank you, professor. We are closing in on our allotted time for this session. We have one more questioner, Senator Martin, and I would ask that we try our best to have a precise question and precise answer.
Mr. Noonan: I'll do my best.
Senator Martin: In fact, as I was waiting to ask my question, I feel the professor has addressed some of my questions in the answers he gave to my colleagues.
I do want to say that I missed your presentation here, but I did read the text of your statement that was given to us prior to this committee meeting. I was quite reassured to read some of the things you had written, and it reminded me of this bill and the debate that we had engaged in in the Senate Chamber.
I'm a Vancouverite, so I've been to the aquarium on many occasions, both as a parent and as a teacher. I wish I could answer the question of Senator Munson. I'll do that separately.
Professor, I don't know if you expanded on this, but I really agree with what you're saying. I have seen the evolution of zoos. I think Toronto Zoo is one good example. But your statement here states, "Looking from the outside, it looks like this bill is unfairly targeting two particular Canadian zoos.'' You have already articulated, and the people around this table understand, this is targeting the two facilities we have. Is there anything more that you wish to say about how this bill is going too far or that it is unfairly targeting Vancouver Aquarium and Marineland and therefore, we need to carefully look at the passage of this bill at third reading?
That was my concern as a Vancouver resident who has experienced all the positive impact and what happens when children see first-hand versus just reading a book or watching a video. Would you speak to anything that you may have left out regarding how it is targeting these two places, and unfairly so?
Mr. Noonan: Sure, Senator Martin.
I will, Senator Manning, promise to be short, but cut me off, if you wish.
Senator Martin, I believe I have made my point. My point is that Vancouver Aquarium, like zoos across Canada, has the same mission, the same effect, the same potential for inspiration, and the same challenges in delivering on that aspiration of being educational.
Rob Laidlaw of Zoocheck did correctly summarize that the evidence for a really educational, transformative experience at zoos is not good. But to their credit, the previous witnesses also admitted exactly what you are describing, Senator Martin, that they can, at least in some people, be inspirational experiences.
My statement stands that this bill is inarguable. It will only affect two Canadian institutions. Why? Because this bill singles out cetaceans.
I have presented an argument, and others have presented an argument, that cetacean welfare should be looked after very carefully, but why single them out? Chimpanzees, gorillas, lions and turtles, we are concerned about all of those animals.
It does seem unfair to me, senator, and it is unfair that it is targeting these two institutions. It's unfair because it's not justified to target cetaceans in this way. If this debate was about the role of zoos in general and of possibly closing all zoos, it would be fairer.
I promised to keep it short. How was that, Senator Manning? Is that short enough?
The Chair: That was wonderful, Professor Noonan. Thank you for your testimony here this evening, and certainly a great discussion with our senators. We have to move on to our next witnesses. Thank you for taking the time to join us, and your feedback has been great.
Mr. Noonan: Senator, one of my favourite zoos, and perhaps the best zoo in the world, in my opinion, is Salmonier Nature Park in Newfoundland.
The Chair: There you go. You say you need more time, professor? You should have brought that up earlier. I agree, by the way. We just had a lot of new government money gone into making sure it continues that way, so we're very happy.
Thank you very much for your presentation this evening.
I would like to welcome Adam Burns, Acting Director General, Fisheries Resource Management, Fisheries and Oceans Canada; and Alain Vézina, Regional Director, Science, Maritimes Region, Fisheries and Oceans Canada. I understand, Mr. Burns, you want to make opening remarks. Most of the senators have a copy of your remarks, but if you wish to summarize, please go ahead, and then we will turn to questions.
Adam Burns, Acting Director General, Fisheries Resource Management, Fisheries and Oceans Canada: Thank you for having us. It's a pleasure to be here on behalf of the Department of Fisheries and Oceans and the Canadian Coast Guard. I would like to thank you for the work that you're doing on your review of Bill S-203.
Some of you will recall, and I'm sure all of you have at least read, that my colleagues Sylvie Lapointe and Arran McPherson and I appeared here a few weeks ago. Sylvie Lapointe did deliver some opening remarks and reviewed in broad strokes the department's mandate and authorities related to the provisions contained in Bill S-203.
We prepared some opening remarks that are a little longer than what needs to be delivered today, not wanting to take too much of your time in terms of repeating much of what the department has already said. Certainly our objective is to respond to your questions. I understand that you had some additional questions following the testimony of others who have appeared before you, and we're happy to answer those.
In the remarks that we have tabled with you, you will note a description of the department's current authorities related to the provisions in the bill, and in many ways where those existing authorities are currently addressing some of the concerns expressed or some of the concerns that Bill S-203 appears to be intended to address.
We also did express some points that you may want to take into account in your review of the bill related to the impacts of some of the provisions on scientific research, and on the ability of indigenous communities in the North, in particular, almost exclusively, to engage in commercial trade related to some marine mammal products.
With that, we would be happy to take your questions and answer any specific questions around the department's mandate as well.
The Chair: Thank you, Mr. Burns. Before turning to senators, I will ask a quick question myself. The department only issues licences authorizing the capture of a live cetacean for scientific research or rehabilitation purposes. In the past 10 years, only one licence has been issued for rehabilitation of a stranded newborn false killer whale. If a qualified professional determines that the animal can be released back into the wild following rehabilitation, the department issues a licence. Do you want to expand on the process there?
Mr. Burns: Sure. In terms of the last 10 years, there has obviously been far more activity than one instance where the department and third-party partners have provided marine mammal response services related to entangled whales or stranded whales or ice-entrapped whales.
There was one instance where it was determined that it would be appropriate to move a particular marine mammal, the false killer whale in question, to a rehabilitation facility. In this case, it was the Vancouver Aquarium. In that instance, because in effect the animal is being captured, a fishing licence has to be issued, in this case a section 52 licence for scientific purposes. That licence was issued in that particular case, the whale was taken to the Vancouver Aquarium where rehabilitation was undertaken, and at this point, it has not determined that that animal can be released back into the wild. It's still alive and at the Vancouver Aquarium, as I understand it. At some point in the future, if it was determined by veterinary experts that it could be released, in order for that to occur, the minister would have to issue a licence to do that. But until such a time as that occurs, the animal would remain at the Vancouver Aquarium.
That's the only instance where that has occurred. Aside from that, the rehabilitation activity at the site is sufficient for the animal, and it's then able to swim off on its own; or, in many other instances, it's determined that it's inappropriate or not feasible to move the animal to a rehabilitation centre; or more often than not, there isn't one in proximity. Basically, it's the Vancouver Aquarium where that could occur. In those instances where the animal is not able to be rehabilitated quickly on site and released, the animal would be euthanized.
The Chair: That leads into my second question. If we didn't have a facility such as the Vancouver Aquarium, or a similar facility, what would happen in that situation?
Mr. Burns: In the particular case of the pseudo-orca, if there weren't a Vancouver Aquarium, it would be a hypothetical question, obviously, so it's hard to know. I'm not a veterinary expert that can speak to that, but a determination would have to be made at that time as to whether the animal could have been rehabilitated at the site. Obviously, that can't occur for more than a short period of time and then have it swim off. So if it could have been un- stranded, or whatever the correct term would be for that. Otherwise, it would have been euthanized.
Senator McInnis: It's good to see you again. Was DFO consulted at any time by the promoters of this piece of legislation in advance of it being introduced?
Mr. Burns: I can speak for myself, that I was not. I'm not aware that the department was consulted, but obviously, it's a large department and it is possible that someone was consulted, but I'm not aware of that.
Senator McInnis: Normally what happens, they will go to Justice and get them to do a review. I would have thought here that there would have been some contact with your department.
Having said that, there is a multiplicity of laws connected with these operations. There are, of course, the federal laws that exist and, of course, under the Constitution, there are certain controls that fall to the provinces and there are certain laws there in terms of cruelty to animals and all of this type of thing.
You have just alluded to the fact there may be some areas that are not covered prior to this legislation going into place, but have you analyzed it? Has anyone actually sat down and said, "We currently have sufficient laws in this country, both federal and provincial, that this piece of legislation is not required?''
Mr. Burns: Certainly, the three implicated departments, the Department of Justice, Environment and Climate Change Canada and Fisheries and Oceans have all looked at the bill. Our colleagues from Environment and Climate Change Canada spoke at the committee a couple of weeks ago, I guess, and my colleague from the Department of Justice was here with us at the time.
I don't want to speak for them, but from DFO's perspective, it is our view that many of the objectives within the current legislation are addressed by the current legislative regime. There are elements that certainly aren't, for example, in terms of the importation of a live marine mammal into Canada for public display purposes; that is currently not within the scope of the Fisheries Act. So that isn't an area over which we would have jurisdiction.
However, in terms of the capture of a marine mammal within Canadian waters for public display purposes, the department has not done that since 1992. I suppose the capacity and the authority for the minister to issue that type of licence for those purposes still exists. However, it has been a policy of the Government of Canada since 1992 to not do that, as an example.
Senator McInnis: Thank you.
Senator Munson: Thank you for being here. I was just on the St. Andrews site, and having been there, as a senator and also as a journalist some time ago, you see an amazing amount of work still being done when you talk about aquaculture, oceanography, sustainable fisheries, stock assessments, aquatic environment and species at risk. Government is doing an incredible amount of research in different places across the country, but St. Andrews is doing exceptional work there.
I'm just wondering, when we have learned professors like Professor Noonan and others come and they talk about doing their research and going to Marineland and other places, is there a duplication of work here? The government itself seems to have so many scientists and researchers doing all this kind of work. I'm curious about how you work in collaboration with others who work within the private sector and with the government.
Alain Vézina, Regional Director, Science, Maritimes Region, Fisheries and Oceans Canada: If I may, I will take that question. I'm regional director of science in the Maritime region, and St. Andrews Biological Station happens to be in my domain, so to speak. Also, actually, currently I'm acting director general for Ecosystem Science in Ottawa, but in a week's time I will return to the Maritimes.
Senator Munson: You're a lucky man.
Mr. Vézina: I agree. It's a beautiful place and they do exceptional research. I'm very proud of my staff and the work they do there, and at the Bedford Institute of Oceanography as well.
We do collaborate closely with academic researchers, and we need each other because the academic researchers do the type of research that is very theoretical and more bleeding edge in trying to push the boundaries. We're trying to take that in and make it real for policy decisions, for advice, so we're doing a lot of research that transforms this knowledge into applications for the government. At the same time, we're doing some fundamental research, but it's very strategic, to address the issues that our clients in the government want us to address. So it's very complementary, and we need a strong academic sector. For example, in the marine mammal research we are talking about here, we do need a very vibrant academic sector to do some of the research that we cannot do in-house to deliver on our mandate.
So we do have a large number of resources, and they are increasing, but there are a lot of demands also, and so we need help from the academics. We do collaborate with them very closely when our mandates align.
Senator Munson: Thank you for that. I also have a second question. You paraphrased, Mr. Burns, in your opening statement. There was a part on page 3 when you mentioned the proposed amendment to the Fisheries Act prohibiting the moving of a live cetacean from the vicinity in which it is found because it could adversely affect the department's ability under section 15(c) of the Marine Mammal Regulations. It goes on to talk about a marine mammal transportation licence for any marine mammal or marine mammal parts, including live cetaceans to be used for scientific purposes, and it goes on a bit.
But you said the proposed amendment could impair the department's ability to conduct cetacean research and rehabilitation activities. How could that impair, and to what extent? What would be the major issue?
Mr. Burns: Perhaps I can start. In terms of the prohibitions proposed under Bill S-203, it would relate to the ability to have scientists exchange genetic material, for example. Our point, I guess, was that you may want to consider whether the provisions in Bill S-203 would impact the ability of the scientific community to ship back and forth to one another genetic material or other biological samples that would be necessary for them to undertake their scientific research. That would be an example, I think, and my colleague may want to speak more on that.
Mr. Vézina: Sorry, that question was directed to you initially, but I see that it has to do with the impact on the scientific research for the department. For example, when we do necropsies of deceased whales, animals or cetaceans, we do need to ship samples across borders sometimes because we don't necessarily have the specialized laboratory facilities in our organization. So that could potentially be impacted. And we do often exchange samples for research purposes, as Mr. Burns just explained, for genetics, so it depends on the breadth of this statement here. If it's too broad, it might impact a lot of the scientific exchange of samples that goes on as a normal course of research.
Senator Munson: You use the word could, but not would.
Mr. Vézina: It's because I'm not a lawyer. I'm not quite sure whether it covers these types of samples that we do exchange, which are usually just very small parts of the animals. They are not necessarily embryos and they are not whole. They are just tissue samples, for example. So would that be impacted? I'm not sure.
Senator Munson: I was just curious. Thank you very much.
[Translation]
Senator Forest: Thank you for your presentation. We just heard from Dr. Noonan, who recommended a fairly objective and realistic approach. Currently, we know that CAZA is self-regulating, so it mandates people to carry out inspections. I think that we can trust their professionalism, but there is still a risk of conflict of interest.
Dr. Noonan suggested that the government set rules and standards that could regulate that type of activity — the keeping of animals in captivity. But his suggestion was much broader, and did not focus solely on cetaceans. In your opinion, is that an approach that should be considered to try to find a compromise and ensure optimal captivity conditions for those animals, especially cetaceans?
Mr. Vézina: Allow me to explain to you how our laboratories operate. The conditions of captivity of animals used for experiments are monitored very closely and regulated by the Canadian Council on Animal Care. We create committees of researchers and managers who conduct inspections regularly. They work with council personnel, who provide us with reports on what must be improved. One year after the inspection, we have to show how we have implemented the council's recommendations. That exercise is repeated on an annual basis. A tremendous amount of work is done to ensure that the living conditions of any animal in our laboratories meet the standards.
From the government research perspective, there is no conflict of interest, since an independent organization inspects our facilities and then issues recommendations. Our participation in the process is limited to providing them with information. However, we do not draft the reports.
Furthermore, I cannot comment on the rest of Professor Noonan's comments.
Senator Forest: My comment rather had to do with the fact that this does not really concern the animals you keep in captivity for your research. I was talking about perception. We live in a world where perception is sometimes more important than reality. CAZA inspects its own activities. I am not trying to question the objectivity of its inspections. However, let's consider the possibility of your department setting its own rules and mandating the Canadian Council on Animal Care. That would at least enhance the notion of independence.
Mr. Burns: According to what I learned from my colleague from the Department of Justice, who was here with us last time, the regulation of zoos and aquariums is a provincial and not a federal responsibility. I know that the provinces have some regulations. I even think that Ontario recently added regulations pertaining to zoos and aquariums. So this question is for the provinces and not the federal government, since the regulation of zoos and aquariums comes under provincial jurisdiction.
Senator Forest: Even though the Canadian Council on Animal Care has a mandate for all of Canada when it comes to animal welfare?
Mr. Burns: That is my understanding, yes.
[English]
Senator Gold: I have two brief questions. With regard to the issue of import or export samples for scientific research, were the bill to be amended to make it clear that such samples could be, with the appropriate licence or regulatory governmental approval, would that satisfy your concerns? I would go perhaps even beyond just the tissue samples but even, as you mentioned in your written remarks, a live cetacean, if otherwise properly authorized. Would an amendment allowing for that for research purposes satisfy those concerns about this act?
Mr. Vézina: I'm not sure. I can't tell you what amendment and whether that is the proper tool. However, I can tell you that you probably need to consider the possible impacts of the legislation, the bill as written, on a broader set of activities related to research and exchange of samples for scientific purposes.
Senator Gold: This is an unrelated question, and you may not be the people to answer this, but you also expressed a concern, which we have heard before, about the impact of this bill on indigenous communities' ability to export products. Can you advise us whether that export takes place exclusively within Canada, or is it cross-border as well and would also be caught by the export ban?
Mr. Burns: It is definitely cross-border as well. DFO isn't the holder of this specific data, so I need to be careful what I tell you here, but I am certain enough that some international exports would get caught up in this, yes.
Senator Christmas: To follow up on Senator Gold's question, in the department's previous testimony and I also noticed in your written submission that Bill S-203 would impact the ability of indigenous communities to export narwhal tusks. The amount mentioned here is about $400,000 per year.
In previous testimony, I was concerned that this bill, if enacted as drafted, would trigger the Crown's duty to consult, as it would infringe upon indigenous rights. Does DFO have a consultation plan with regard to limiting the trade of narwhal tusks?
Mr. Burns: I have been provided an answer. If you'll bear with me, I'll read it for you.
Under the Nunavut Land Claims Agreement, Inuit have the right to sell, barter, exchange and give, inside or outside the Nunavut Settlement Area, any wildlife lawfully harvested, and the Nunavut agreement is protected under section 35 of the Constitution.
The Crown may have a legal duty to consult and, where appropriate, accommodate whenever it contemplates conduct that might adversely impact potential or established Aboriginal or treaty rights. However, the issue of whether there may be a legal duty to consult prior to or upon introduction of legislation is an issue that is presently before the courts.
This does not, however, preclude parliamentarians — your committee — from seeking the views of concerned indigenous groups regarding the bill. Narwhal products, including tusks, are traded and sold as a by-product of the cetacean hunt in the Nunavut Settlement Area, and we do obviously issue licences for that purpose.
I will stop there. The answer is that the question of whether such a duty to consult is triggered by the tabling of legislation in Parliament is something that is before the courts.
Senator Christmas: I'm sorry; I am a little confused. Is your department's position, then, that there is a question about whether or not there is a Crown duty to consult indigenous communities on this topic?
Mr. Burns: The response that has been suggested to me would relate to whether the tabling of legislation triggers a duty to consult, if that tabling occurs in Parliament. As I understand it, that specific question is before the courts, so we wouldn't have a specific answer for you as to whether or not the bill, as currently written and tabled in Parliament, has triggered a duty to consult, as I understand it. I'm not an expert in this field.
Senator Christmas: As a parliamentarian, then, that would create a dilemma in that if this bill were enacted as is, then we don't know, as parliamentarians, whether or not a consultation plan is required. I believe it's important for us to have a clear answer to that question. I just point out that dilemma. I think it's important for us to come to a conclusion about whether or not the Crown has a duty to consult on this topic.
Senator McInnis: It may not say "consult'' but there is a constitutional right for that community to have sustenance and to gather. One would presume, as a consequence of that, there would be a duty to consult, without question.
Senator Sinclair: Do you want me to go sit over there?
Senator McInnis: No, I want you to adjudicate on this.
Senator Martin: I have a question following that of Senator Christmas. You didn't do your full presentation, but in your written script here it says "the proposed amendments to WAPPRIITA could also impact the ability of indigenous communities to export cetacean products such as narwhal tusks, which could lead to a loss of approximately $400,000 in annual revenue.''
I'm reminded of watching the documentary Angry Inuk and that when certain parliaments banned certain products and the impact it had on those communities. Were the indigenous communities potentially impacted by this consulted prior to the bill being tabled? You would not have the answer to that per se, but this is a very concerning point.
Mr. Burns: Obviously this isn't a bill that has been brought forward by the government, so I don't have knowledge of that. I do believe that Angry Inuk was referenced the last time we were here as well. I just wanted to point that out.
The Chair: Is there someone you could suggest to us within your department who could clarify this for us here at the committee?
Mr. Burns: I'm not a lawyer, but I would submit that it's probably more a question for parliamentary lawyers than it is for the Department of Fisheries and Oceans' lawyers with respect to the responsibility of the Senate and Parliament to engage in a duty to consult with respect to legislation that is moving forward, especially legislation that has been brought forward by a private member. I may be wrong on that, but that would be my view.
The Chair: We will get in touch with the Department of Justice and see if we need to have someone here to clarify that for you.
Senator Plett: I think my questions have been answered. Much as you are very hesitant to give us a solid opinion, and I appreciate that, I think the document itself gives us a fairly clear opinion.
Chair, instead of asking a question I will simply endorse that I believe we need to get government officials here, either Justice officials or somebody who can come here and tell us. Mr. Burns correctly says this is private member's legislation, not government legislation. However, the government does still speak out on private member's legislation — they did so on my private member's bill — and let us know whether or not they supported it. I think it's imperative that we get government officials to come here and tell us whether or not the government supports this legislation and, if so, why, and if not, why not. We need some very clear direction that obviously these gentlemen either cannot or at least are not prepared to give us. I respect the dilemma you're in, but for us to go ahead at any point with clause-by-clause without having clear direction of what the government plans on doing if we were to pass this legislation would not be doing our duty.
The Chair: Thank you, Senator Plett. We will take that and ask the Department of Justice. Again, based on the availability of someone, we will try to get them here. The last time we had Mr. Burns and others, we had a person from the Department of Justice here who clarified some legal issues for us, but I'm sure other issues have come up since.
Senator Plett: You are right, clarified some issues for us, but, again, was very hesitant in letting us know what their position was on the legislation. I think they are well-known, and there are people over there who are either supportive or not supportive of this. I think we need to have somebody that will come here and give us direct answers and not simply say, "We think this could have an impact.'' Either it will or it won't.
Senator McInnis: There are cases such as Sparrow and Marshall. I'm sure those precedents would have touched on this. I am sure that they could come and explain it.
Senator Gold: There are two separate issues. I agree with Senator Plett. Before we proceed ultimately. It would be very helpful to know what the government's position on the bill generally is, if they support it but would suggest amendments X, Y or Z. That is a separate question from whether or not we can get clarity, which also would be helpful, as to the scope of indigenous rights or the degree to which the rights would trump this bill even if we enacted it as it is or whether an exception would finesse that problem and so forth.
Senator Plett: There is nothing prohibiting us from calling Senator Sinclair as a witness.
[Translation]
Senator Forest: I agree with Senator Plett. The issue is that, if we want to know the government's position, we will hear the position of the government administration. As for the other side's political position on the bill, we won't be able to find out what it is unless we can bring in members to testify. It would indeed be very insightful to hear the position of the government to figure out what the legislative environment is.
[English]
The Chair: I have been advised that we may not get a straight answer for that — this is my language — even from the Department of Justice officials. They may elaborate on the good and the bad, but they may not give us an answer as to whether or not the government supports something. It may not be in their domain to do that as an official of Justice. We may have to move up the ladder a bit. We will consult on that in steering and report back to the committee. We will see where we go from there.
Senator Sinclair, you don't have to straighten all this out, but you have a question, I believe.
Senator Sinclair: I will straighten it all out for you. A notwithstanding clause will cover it all.
Gentlemen, in looking at the most recent material you provided to us, as well as the material from the last time you appeared, I am struck by the fact that what you appear to be saying in both occasions is that, in your view, the majority of the issues raised in Bill S-203 are things that you could now do, or the government, being you, could now do if it so wished.
For example, you point out in today's presentation that under the Fisheries Act it's possible to restrict the wild capture of cetaceans. In fact, you point out that since 1992, I think you said, no permit has been given to allow cetaceans to be taken into captivity for purposes of display. Yet we hear that Marineland has been obtaining cetaceans from other countries in order for purposes of display and research. In terms of what Canada has done, Canada has not allowed captivity to occur. This bill prohibits that kind of action, so I gather you are saying it doesn't need to be in the bill because you are already capable of doing that. You also reference other provisions that you feel allow the department to prevent the importation of animals from other countries or the importation of trade of animals, if I understand your presentation. Am I correct? You are shaking your head.
Mr. Burns: In terms of the importation of wild-caught animals in other jurisdictions — and, again, this is an area that falls under the competency of other ministers — I can tell you that if an animal falls under the Convention on International Trade in Endangered Species, then there are restrictions that are imposed on the importation of that animal through the WAPPRIITA legislation. If it's not an animal that falls under the realm of CITES, the Convention on International Trade in Endangered Species, then there wouldn't be, as I understand it, any prohibition.
Senator Sinclair: So if any other country has prohibited the capture of that animal under the current agreement, Canada would be able to prohibit its importation?
Mr. Burns: The only piece that would fall under DFO's jurisdiction currently would be the interprovincial transportation of a marine mammal, which would require a Marine Mammal Transportation License.
Senator Sinclair: Thank you.
The Chair: I want to thank our witnesses for your presentations here this evening, and I thank our senators. It has been an interesting evening, to say the least. We are moving forward, even if it is with baby steps at the present time. Thank you, and we will see you Thursday morning.
(The committee adjourned.)