Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 14 - Evidence - February 26, 2013
OTTAWA, Tuesday, February 26, 2013
The Standing Senate Committee on Fisheries and Oceans, to which was referred Bill S-13, An Act to amend the Coastal Fisheries Protection Act, met this day at 6:14 p.m. to give consideration to the bill.
Senator Fabian Manning (Chair) in the chair.
[English]
The Chair: I am pleased to welcome you to this meeting of the Standing Senate Committee on Fisheries and Oceans.
I apologize especially to our guest for our tardiness here this evening, but under the Rules of the Senate we cannot meet when the Senate sits unless we have special permission. Some people love speaking in the Senate. It goes on and on and we cannot control that. Freedom of speech is one of our strong suits here.
I am Fabian Manning, a senator from Newfoundland and Labrador, and I am chair of the committee. Before I give the floor to our witness, I will ask the members to introduce themselves.
Senator Harb: Mac Harb from Ontario.
Senator MacDonald: Michael MacDonald, Nova Scotia.
Senator McInnis: Tom McInnis, Nova Scotia.
Senator Poirier: Rose-May Poirier, New Brunswick.
Senator Raine: Nancy Greene Raine, British Columbia.
Senator Unger: Betty Unger, Alberta.
Senator Wells: David Wells, Newfoundland and Labrador.
The Chair: Senator Wells is a new member of our committee and a new senator who was recently appointed. We have another new member coming next week. Senator Stewart Olsen will be joining us in the place of Senator Oliver.
I will give Senator Wells a minute to give us some background on his past experiences. I know him from Newfoundland so I am fully aware of his involvement with the fishery especially. We are delighted to have you as a member of our committee.
Senator Wells: As the chair said, I have a long history in the fishery. It goes back more than 30 years. In my early days in the late 1970s I worked in fish plants in between semesters at university. Throughout the 1980s I ran fish plants on the coast of Labrador and on the island of Newfoundland.
From 1990 to 2006 I operated a fisheries and natural resources consulting company in Newfoundland and Labrador. During that time as well I owned and operated an aquaculture company called Atlantic Halibut Farms, which I operated for a couple of years and then sold to a Norwegian company.
Between 2006 and 2010 I was senior policy adviser and chief of staff to a couple of ministers of fisheries here in Ottawa.
I have been a delegate to NAFO. I have written two courses on fisheries management for the Marine Institute at Memorial University of Newfoundland. I have presented at conferences worldwide, and I am pleased to be here to contribute in any way I can.
The Chair: You are welcome. With your expertise, we are sure you can add to our committee. With all the experience you have had, there is no place like this place here. We give you fair warning.
The committee is continuing its study on Bill S-13, An Act to amend the Coastal Fisheries Protection Act.
I am pleased to welcome Patrick McGuinness, President, Fisheries Council of Canada. On behalf of the committee, I thank you for being here today. I understand you have some opening remarks, following which we will have questions from our senators.
Before you begin, I would like to welcome Senator Elizabeth Hubley, the deputy chair of our committee.
The floor is now yours, Mr. McGuinness.
Patrick McGuinness, President, Fisheries Council of Canada: Thank you very much. I will follow Senator Wells and give you a background of the Fisheries Council of Canada. Fisheries Council of Canada is a national trade association located here in Ottawa, representing the fishing industry in Canada from coast to coast. We have members in British Columbia, Manitoba, Ontario, Quebec, Nova Scotia, New Brunswick, P.E.I., Newfoundland and Labrador and Nunavut.
The people who basically pay our fare are what we call integrated fishing companies. Those are companies that own their own vessels, have their own processing plant and are involved in marketing and distribution of their products.
At the same time, we are proud that we also have as members what we call fishermen's cooperatives. These are fisheries associations that actually own and operate their own processing plants. We are happy to have that type of mixture in our membership.
In P.E.I., we have two of the major fishermen's cooperatives. We have fishermen's cooperatives in New Brunswick, Newfoundland, two in Labrador and one in Nunavut.
Our association in Ontario, the Fish and Seafood Association of Ontario, is primarily made up of importers and distributers, but basically they represent a small portion of our membership. They contribute about 4 per cent of fees.
We also have as our members individual separate fleets, including the BC Seafood Alliance, which represents about 85 per cent of the vessels fishing in the Pacific. We also have the offshore shrimp fleet; in Atlantic Canada, the offshore groundfish fleet; the scallop fleet; and Nova Scotia midshore herring.
We try to represent that diverse membership on issues of national and international interest of the fishing industry in Canada. What we do not get into is who gets to fish. We do not say the fish should go to P.E.I. or Nova Scotia and so forth. That is how we manage to stay alive.
I should also say that we are a founding member of the International Coalition of Fisheries Associations. That is a coalition of national fisheries organizations such as, in Canada, the Fisheries Council of Canada; the United States, in terms of the National Fisheries Institute; Japan; Iceland; Norway; Russia; Spain; and other countries. There are about 16 countries with national associations that form the coalition. I happen to be the current chair of that organization.
Our organization is registered with the United Nations as a non-government industry group, and therefore we are able to participate in the full range of the UN in terms of its bodies, whether it is the General Assembly or, more particularly, with the FAO in terms of fisheries and oceans issues.
In terms of the negotiations and development of the FAO's Port State Measures Agreement, we were at the table as observers. How it works in the UN and so forth is that obviously country delegations do the negotiations on a particular area, and then there is a break, and then the chair generally asks the observers if we have any comments or things of that nature. We were participating in that.
Canada signed the Port State Measures Agreement, which now has led to amendments being required in the Coastal Fisheries Protection Act. The Fisheries Council of Canada and the International Coalition of Fisheries Associations fully supported the negotiations with the Port State Measures Agreement and its outcomes. It had the right focus. It focused on illegal fishing and transshipping on the high seas. That is basically where the issue lies in terms of what we call IUU fishing, or illegal, unreported and unregulated fishing.
The only problem that we find with the agreement is that it took too long to negotiate. The length of time it was taking, and the laborious timetable, unfortunately provided the opportunity for unilateral action by the European Union and the United States with respect to trying to address this issue called IUU. From our perspective, IUU is basically those countries that allow their vessels to go on the high seas and unfortunately are not regulated.
I wanted to make some comments on the second issue that I have identified. As a result of the EU's initiative in terms of IUU fishing, for every shipment now that we export to the EU, there has to be a certificate issued by the Department of Fisheries and Oceans that the fish that are involved in this shipment have been fished within a legal fishery and by a licensed vessel.
The issue, first, is that this has been a complicated and expensive exercise for countries such as Canada and other countries that are going through the same things. As you know, in terms of the high seas, we have maybe one or two or three vessels on the high seas. This has been a very expensive issue for us, and at the same time we find it an unnecessary type of impediment in our fishing, harvesting, processing and exporting.
For example, in our live lobster fishery, they are fished in vessels that are 45 feet or less. They go out to perhaps 12 miles from the coast. Yet, at the same time, we have a system that was expensive to develop, whereby we were able to get DFO to attest that the vessels that participated in that fishery, while the fishery was open, were in fact licensed boats.
You can appreciate this, in the sense that in Canada, we are not a fishery like Iceland, which is consolidated. The Department of Fisheries and Oceans has 150 fisheries for which they have fisheries management plans, and 87 per cent of the vessels that are licensed by the Department of Fisheries and Oceans are vessels that are 45 feet or less.
First, this unilateral initiative by the EU was unwelcome. On the other hand, I have to give full compliments to the Department of Fisheries and Oceans in responding extremely quickly in putting together a system that basically allowed us to continue to export to the European Union.
On the other hand, the United States also took unilateral action when it was renewing its fisheries laws under the Magnuson-Stevens Act, but they took a different route. They have their administrations scanning the landscape in terms of high seas fisheries and then identifying those countries that are allowing their vessels to go out on the high seas and are really not controlling them. As I say, we felt that the unilateral activity was not helpful in terms of dealing with world fisheries and trying to take a multilateral approach.
I will say one thing, that the EU presentation or approach was particularly obnoxious because what they do is simply identify everyone as guilty until proven innocent. At least in the U.S. approach, you are innocent until they have done their investigations and think you are guilty. It is also interesting that in terms of the United States, countries they have identified as being guilty include Italy and Spain, and yet the EU is imposing this regime right across the world.
Our objective, both from the Fisheries Council of Canada and our international fisheries associations, is to get this Port State Measures Agreement ratified and in force as soon as possible. We would hope that once we have that groundswell of support in terms of the Port State Measures being in place, being effective and focused on the right issue — that is, fishing vessels on the high seas — we will have enough weight behind us to try to get the European Union to move back from the type of program they have.
That is basically where we are. We understand that because of the Port State Measures Agreement, obviously there is a need for the Coastal Fisheries Protection Act to be amended. I must admit that we have gone through it; we are not lawyers, but we do not see anything that jumps out at us that would be of concern.
That is my presentation.
The Chair: Thank you, Mr. McGuinness.
Senator Hubley: Thank you very much for being here this evening and for your presentation.
Could you enlighten me as to what areas of the sea have the greatest problem with IUU fishing? Are those fishing vessels concentrated under any particular flags? I will let you go with that.
Mr. McGuinness: Right now, in terms of fishing vessels that are on the high seas, I must admit I am not that much on top of it, but you are looking at China substantially, at Spain, Portugal, Taiwan, South Korea, Japan, and at a wide range of vessels.
The issue is that some countries, particularly Japan, are very diligent in terms of keeping on top of the vessels, of reporting and things of that nature. They have a tracking system so that they know where that vessel is and they have recording devices on the vessels to track the volume of fish that they have.
If you look at the EU fleet, for example the Spanish fleet harvests significant hake fishery off Argentina. Hake in Spain is something like Atlantic cod in Atlantic and Eastern Canada. Hake is one of the top species that the Spanish consumer enjoys, and that fishing ground is the most important fishing ground for the Spanish vessels.
Having said that, there is no question about the importance or the profile that IUU fishing has, particularly with civil society. The European Union has taken significant measures to bring in better control with respect to their Spanish and Portuguese fleets. Nevertheless, at the end of 2012, the United States government identified Spain as a fishery that is conducting IUU fisheries, so there will be negotiations between the Americans and Spain in terms of what they found and what that issue is.
Senator Hubley: You mentioned that these vessels operate on the high seas, so to speak. Do they ever attempt to access Canadian ports? Are there any estimates of what the loss to Canada would be in fishing to have this IUU fishing taking place, or is there a loss to Canada?
Mr. McGuinness: A lot of these vessels are what we used to call flag of convenience vessels. There is a new updated terminology for them. They are fishing, for example, out of the Caribbean or Latin American countries. A blatant IUU fishing vessel that is fairly well known would not seek entry into Canada to off-load or things of that nature. They would most likely seek other, more conducive types of ports.
Regarding the cost to Canada and what is happening in the fisheries in terms of the cost of fishing, particularly fuel, the increasing costs of labour on long-distance fishing vessels, and the price, the issue is that long-distance fishing is not economical. We know that because our vessels that are fishing out to our 200-mile limit cost about $21 million a vessel to harvest Greenland halibut and other products, which is a long distance but is quite short compared to these other vessels. It is hardly profitable for these companies. There is no question in my mind and in that of quite a few others that a lot of the fishing on the high seas in view of the cost structure now is only doable with subsidization.
Senator Raine: What do you mean by subsidization? Their government would subsidize them?
Mr. McGuinness: If you look at the EU's fuel structure, an EU fishing owner basically gets more rebates from the fuel program the more he uses it. The rebates for those vessels going on the high seas are quite substantial.
In terms of state-run fisheries, China has a national program to expand their fishing capacity, and they have done so quite substantially, not only inside their own waters but internationally. There is considerable subsidization in terms of the building of the vessel. In Canada, you get a vessel that will cost you $20 million to $30 million. You are basically finding private capital to be able to do that. In a number of countries that is basically cost-shared, or whatever, with respect to the national treasury.
Senator Harb: Thank you, Mr. McGuinness. Were you involved in the development of the act at all? Were you consulted?
Mr. McGuinness: At the report stage, yes, we were consulted. Our International Coalition of Fishing Associations was part of the observer process. As the meetings were progressing, from time to time the Department of Fisheries and Oceans in particular would have meetings with them regarding some of the wording, the initiatives or the concepts that were being tabled to see if we were comfortable with them. The Department of Foreign Affairs and International Trade and DFO both had problems with a number of concepts. Basically, we concurred and we had a very professional crew on this type of issue. With one of the major regional fisheries organizations that Canada participates in, NAFO off Canada's Atlantic coast, the real people who are dotting the i's and crossing the t's in terms of moving that organization forward with respect to such issues as enforcement and control are really the Canadian contingent. We have a highly experienced and knowledgeable crew there to interpret this type of initiative vis-à-vis not only our coastal protection act in Canada but also whether it will have an impact with respect to NAFO and some of the other regional fisheries management organizations that we participate in.
Senator Harb: There is nothing really major that you think the committee will have to add. You are fully satisfied with the bill the way it was introduced?
Mr. McGuinness: Yes.
Senator Harb: My final question deals with one section of the act that deals with prohibitions on importing illegally acquired fish and marine plants. Did that section create any concerns for you? Your members almost have to do their due diligence in a sense. Is that something of concern to you?
Mr. McGuinness: No, it has not been. Basically, the higher issue really is trying to get a grip and have a multilateral piece of work that really addresses this issue. With respect to fish and seafood, we are in the marketplace competing against meat, chicken and so forth. Particularly, the environmental groups have been putting a focus on this issue of illegal, unreported and unregulated fisheries. That, to a certain extent, creates a negative image of the fishing industry worldwide. It is in our best interests to really address that. That is a priority for us, to put in place these types of measures that have credibility and are effective, and basically in terms where civil society sees that the fishing industry and the various nations got together; an issue was identified, and collectively they have responded responsibly.
That is the level we are at. On this one, of course, it is with respect to vessels coming into Canadian ports, not only fishing vessels but vessels that are involved in transshipment in the oceans. It really is getting the ability to inspect and to determine whether or not it has been illegal. If it has been illegal, our industry, in terms of our vessel operators and processors, and that includes our Ontario association, is fully supportive of eliminating that type of activity.
Senator Poirier: I have several questions. One was around the definition of the fishing vessel and fish. In your opinion, what impact could harvesters expect from the changes in the definition of fishing vessel and fish? Are they in favour of the changes or is there any impact?
Mr. McGuinness: We did not see anything that we felt was dangerous. As I say, we are not experts in that. Do you have any suggestions of what would be your exact concern?
Senator Poirier: I just know that there was an amendment to the following definitions, and I was wondering if you felt that there was any impact.
Mr. McGuinness: No, not that we know of.
Senator Poirier: To your knowledge, how great a problem is illegal, unreported or unregulated fishing in Canada?
Mr. McGuinness: It is really not a Canadian issue. In terms of, for example, the FAO Code of Conduct for Responsible Fisheries, six international scientists reviewed the fisheries management regimes of 56 countries. These were not necessarily scientists who were friendly to the fishing industry or to government. Generally, the report was pretty negative, but they did identify six countries that basically were meeting the requirements of the FAO Code of Conduct for Responsible Fisheries. There were only six that got passing marks, and Canada came third. That then is looking at issues such as monitoring and fisheries management.
In Canada, it is not really an issue. It is one of the things that have evolved over years. I guess maybe about 15 or 20 years ago it was an issue. It was an issue particularly in Atlantic Canada, where there would be DFO at that point in time identifying some form of illegal fishery, taking the person to court. We found that the judiciary that was very much swayed by the mistake of the fishermen and did not put much emphasize on the illegal nature of it. The Fisheries Council of Canada and other groups did a campaign with the judiciary, saying this is really important stuff. The issue is illegal fishing, and the concern there is that if it is not really dealt with as an extremely serious matter, it will lead to overfishing and the demise of our assets.
We found a significant element of the judiciary saying yes, they got it. The issue is that illegal fishing, regardless of the circumstances, is an important matter.
In Canada, we are quite confident that in this area we are probably performing as one of the best in the world.
We have now the Department of Fisheries and Oceans, and it has 150 to 160 individual fisheries management plans that contain not only the quota but also what the enforcement regime is for that particular fishery. That type of detail and oversight is extremely important, particularly nowadays.
Senator McInnis: How do you lobby a judge?
Mr. McGuinness: You simply write, not to a particular judge. We looked at the law association and things of that nature, and basically told the story and got the story out.
Senator McInnis: You were dealing with the bar societies and the prosecutorial side.
Senator Raine: It is fascinating. I can see that obviously we want to move forward with the Port State Measures Agreement. We are making it possible for us to fulfill our obligations under that. We have already signed on to that agreement; is this housekeeping we are doing now?
Mr. McGuinness: Basically, that is my interpretation. As you say, the housekeeping would make sure that the t's are crossed and the i's are dotted and that, as you say, we do not somehow cause some disruption in our own Coastal Fisheries Protection Act.
Senator Raine: Right now, I am not quite sure where we are sitting. Do I understand we need 25 countries to ratify it for it to come into force?
Mr. McGuinness: Yes.
Senator Raine: Are we at 23 now? Is that including Canada?
Mr. McGuinness: After me you have Foreign Affairs and International Trade Canada, but we are perhaps four or five that have ratified.
Senator Raine: They have fully put the supporting legislation in place?
Mr. McGuinness: Yes, whatever the ratification process is. In our case we have to go through this Coastal Fisheries Protection Act and make sure it is consistent with the Port State Measures Agreement, and then it goes through ratification. Other countries have different approaches for ratification.
Senator Raine: We are still a long way from having this fulfilled.
Mr. McGuinness: The International Coalition of Fisheries Associations has 16 nations. They are totally on board. Our 16 nations are big players in the world fishing industry. We have the fishing industry onside.
You have identified a problem: The international system is slow. The negotiations took a considerable time, and ratification will itself take time.
I think it will be difficult for countries not to ratify. There is a big concern in the developing world. The developing world has been the main victim of IUU fishing, such as Ghana, where fishing vessels on the high seas from wherever go inside its 200-mile zone. They do not have the surveillance capabilities or vessels to counteract that.
I see the developing world as jumping on this as a way, hopefully, to get countries, for example, Ghana, to be able to identify or claim that fisheries vessel X, Y or Z made intrusions into its zone. The FAO will be setting up some form of blacklist, for lack of a better word, and then when that vessel is perhaps going into port for off-loading, hopefully, that particular country will take the measures that are in place here.
Senator Raine: Is this act for all the oceans or just the Atlantic?
Mr. McGuinness: It is for all the oceans.
Senator Raine: There are many countries in the world that have not signed on to this.
Mr. McGuinness: Yes.
Senator Raine: That is obviously a problem.
Mr. McGuinness: For example, Canada has not signed on. Everyone has to go through due diligence and the process. All these countries are members of the FAO. They were at the tables participating in this exercise. I think this is one that will be a winner in terms of getting the type of signage from those countries where fishing is an important part of their economic and social aspects.
Senator Raine: Forgive me because I still have not quite grasped it. I have a note that says that the agreement, meaning the Port State Measures Agreement, was open for signature for one year, during which time 23 states signed it. Since that time, one signatory, the European Union, has approved the agreement, and another, Norway, has ratified it. Two non-signatories, Myanmar and Sri Lanka, have acceded to the agreement. We must be close to the 25 that it needs to be in effect. Maybe those are 25 that have said they would do it but it will take a while.
Mr. McGuinness: Exactly.
Senator Raine: As the number three country performing responsible fisheries management, Canada should sign it as quickly as possible and lead the way.
Mr. McGuinness: That is our recommendation.
Senator Raine: Thank you.
Senator McInnis: With respect to the transfer of this fish to container vessels, for example, do you know if that is prevalent?
Mr. McGuinness: As I said, the cost of fishing on the high seas is extremely costly, and the Chinese have figured out a marvellous way to deal with that. They have large, almost stationary fishing vessels on the high seas on the fishing grounds. Then they have cargo vessels go out to those vessels at scheduled times to take the fish off that vessel and take them to China or wherever.
Transshipping is a way of making the actual fishing activity less costly. If you are long distance, and you are setting sail out of Vigo, Spain, off to the Falkland Islands, you are travelling there, you do your fisheries for hake, which is not a top valued species, and then you have to steam all the way back to Vigo to off-load. There is a lot of non-productive cost there. You try to reduce that element, and transshipping is what is occurring.
As you said, it is quite important that the transshipment component is part of this Port State Measures Agreement.
Senator McInnis: I was imagining at the Port of Halifax that containers would be coming in, but there is little or no evidence of that. It would be quite easy to do.
Mr. McGuinness: Yes, but you are quite right. That is where you need some sort of intelligence in terms of whether that container vessel was somehow meeting with a fishing vessel on the high seas, and then the question would be this: Was that fishing vessel in a regulated type of activity or was it not? That would probably be an important issue, once it starts rolling out.
It is complicated and difficult. The other problem is that fishing vessels go from one ownership to another ownership, and sometimes the name of the vessel does not change, but the new owners did not realize that the history of this vessel was blacklisted, if you will. They bought that container vessel, and there was a pickup of Alaska pollock in Alaska to deliver to the European Union, and the European Union had the vessel on their blacklist as an IUU type of container ship and refused the entry of the product.
That had to be clarified because the actual owner at the time was a very reputable company but did not do their due diligence and their checking as to the vessel and getting the name changed.
Those types of issues will occur, and they have to be dealt with to be fair to the participants, if, in fact, they have not been participating in IUU activity.
Senator McInnis: They have sniffer dogs for drugs down in Halifax, chocolate Labs. I would think fish would have much more scent to it.
Mr. McGuinness: They have DNA for fish.
Senator McInnis: Yes, indeed.
Senator Wells: I recognize your long association with the industry and appreciate your input today. You mentioned that 16 nations have signed on. Are you including the EU as one or as individuals?
Mr. McGuinness: I think it was Senator Raine who identified 16. My only recollection right now is that maybe four or five have ratified it. Your next guest could perhaps verify or challenge that.
Senator Wells: I understand also that, generally, even prior to a country's ratifying, they will agree to the tenets of the proposed agreement. I think that is a good thing.
In your experience in discussions with other nations, have they been cooperative in becoming party to this, or were they shamed into it?
Mr. McGuinness: Most nations get it. They get it in the sense that their fisheries should be managed in the way that they should be sustainable. This IUU fishing is damaging the reputation of our industry, and something has to be done. I think most countries that are involved in fishing are in harmony with the concept, and the fact that IUU fishing is a black mark on the industry, on fisheries management, and on certain countries has to be dealt with.
I am hopeful that most countries now have the same type of attitude towards responsible fisheries management as do Canada, the United States, New Zealand, Australia, Iceland and Norway. These countries, as you say, get it. In this case here, that type of harmony of thought can be extended and bring in more of the developing countries. As I say, they are the ones that are suffering quite a bit sometimes in terms of IUU fishing, long-distance fleet fishing.
Senator Wells: We all know IUU is important to combat. To what degree is the current trend of seafood sourcing from harvest to retail important in being able to track legally or illegally caught fish?
Mr. McGuinness: You are quite right. We are having the emergence of two things. One is that, if you will, the marketplace is demanding that we get our fisheries certified as sustainable, whether it is through the stewardship council or others. It is the same thing with aquaculture farms. Part of that is establishing a chain of custody, and that then is traceability.
We are now seeing, you are quite right, that there is much more emphasis on what the name of the vessel was that harvested, where was it harvested and whether you can demonstrate traceability from that particular fishing vessel right into the retail or wholesale market. To a large extent that is happening. You have to recognize that seafood is the number one food commodity traded in the world. What we are seeing developing is that type of sophistication.
In order to have market access, at the end of the day we all live off three markets: the European Union, the United States and Japan. We also have emerging markets in Russia and China. Those markets are very demanding in terms of this, as you say, full chain of oversight and being able to answer that question, if challenged.
It is happening. This issue deals with the high seas component of that.
The Chair: Thank you, Mr. McGuinness, for your time this evening. Again, I apologize for being late and thank you for your patience in waiting to make your presentation and having the opportunity to answer some questions on behalf of our committee. I want to thank you for your time.
Mr. McGuinness: Thank you very much, and thank you for your excellent questions.
The Chair: Before we begin our second session, in the rush at the beginning of our meeting I forgot to take an opportunity to express our sympathies to the families of the fishermen in Nova Scotia who were lost last week. I spoke with many members of our committee and people throughout our province, Newfoundland and Labrador. I come from a small fishing community myself, and there are no words that will adequately express our sympathies to these people, but just to let them know they are in our thoughts and prayers at this time.
The committee is continuing its study of Bill S-13, An Act to amend the Coastal Fisheries Protection Act. We are pleased to welcome an official from Foreign Affairs and International Trade Canada. On behalf of members of the committee, I thank Mr. Morrill for being here this evening and I apologize for our late start. Thank you very much for your patience in waiting to have the opportunity to speak here this evening. You now have the floor, if you have some opening remarks, and then we will follow with senators' questions.
Keith Morrill, Director, Oceans and Environmental Law Division, Foreign Affairs and International Trade Canada: Thank you very much. I thought it might be useful to make a few brief comments of a general nature touching on Bill S-13 from an international law point of view.
First, I make the point that from that point of view the main function of the bill is to ensure that Canada can live up to all the obligations in the Agreement on the Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, a UN treaty negotiated under the auspices of the UN Food and Agriculture Organization, the FAO. Once we are certain we can live up to all the obligations under that treaty, Canada will be in a position to ratify it.
I would make the additional point, which I think was touched on previously, that under many of the sections of the treaty Canada already has the capacity, under existing legislation, to fulfill the obligations required. Bill S-13 does not cover the whole of the treaty but only the few areas where existing Canadian law leaves a gap in the actions required in the treaty. Canada has been a leader in the international community's efforts to combat illegal, unreported and unregulated fishing and thus is already ahead of many countries in the development of its armory to deal with the problem.
Many of the core requirements of the treaty, such as having the capacity to control and refuse port access to ships which have been involved in IUU fishing, can already be implemented under Canadian law. Indeed, one way to view the treaty is to regard it as an instrument designed to move the world down the path that Canada has already followed. To ratify the treaty we must be satisfied that we fill all its obligations. I believe Senator Raine mentioned tidying things up. I think that is a good expression. We must fulfill all the obligations, not just some of them, and thus the need for Bill S-13.
I would also like to place the treaty in the context of the larger efforts by Canada and the international community to advance the cause of conservation on the world's oceans, and especially on the high seas, as touched on by Mr. McGuinness.
The UN Convention on the Law of the Sea, completed in 1982, recognized that both coastal states and states fishing outside of the exclusive economic zones had responsibilities relating to conservation. However, it left the mechanisms by which conservation measures would take place, especially in relation to the high seas, quite unclear. In many ways, much of the work of the last 40 years has been to increase that clarity. The provisions of UNCLOS that touch on conservation speak of working with international and regional bodies to reach agreement on fishing issues.
The 40 years subsequent to UNCLOS have seen the creation of a large number of regional fisheries management organizations, or RFMOs, to provide a framework for agreement in addition to those organizations that existed at the time of UNCLOS. I am bit ambitious in saying 40 years. It is a little more like 30 and a bit.
In addition, the UN Fish Stocks Agreement in 1995 was designed to help clarify the implementation of the fisheries provisions of UNCLOS in certain areas. Of particular importance in relation to this discussion is Article 23 of the UN Fish Stocks Agreement, which notes that:
A port State has the right and the duty to take measures, in accordance with international law, to promote the effectiveness of subregional, regional and global conservation and management measures.
Not just the right, but the duty.
The development of the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing can be seen as one more step in the long effort by Canada and the international community to improve fisheries conservation in all parts of the world's oceans. Bill S-13 will ensure that Canada can ratify the agreement and fulfill all the obligations it entails.
I hope that my being here tonight will be of some use to you in helping support your deliberations on this important issue, and I am happy to try to answer any questions you might have.
[Translation]
I gave my presentation in my mother tongue, but if you have questions in French, I will answer them.
[English]
Some of the questions asked of the last witness may be readdressed to me as they were very much Foreign Affairs questions, but I am very much in your hands.
The Chair: Thank you very much for your opening remarks.
Senator Hubley: Thank you for your presentation. I wonder if you might clarify the number of countries that are supporting in principle, the number that have ratified it and those that have already developed their legislation to put it in place.
Mr. Morrill: It is probably best to step back and talk a little bit about bringing treaties into force and ratifying them.
You can have a treaty that comes into force on signature, so there is one step, you sign it and it is a contract. Most multilateral treaties tend to have at least two steps, and then the UN gets a little innovative and sometimes confusing. Normally in a multilateral treaty you have the process of signature, which is basically a statement by a country that it intends to ratify or that it intends to be bound by this treaty eventually.
You might think of that as like the first reading of a bill. It is an initial process, although the text does not change, so maybe it is a bad metaphor.
My understanding is that 21 countries signed the treaty. The UN, often in an attempt to encourage countries to get on board early, switches the process. It says for the first year or two, you can take this two-step process. You sign but you do not have to be completely ready and then you can ratify that. It encourages countries to come forward quickly. However, the organization that takes this approach says we do not want to leave that open forever, so after two years we will set aside the two-step process and the countries that come next will have a one-step process. They will accede or ratify. They will not sign and then ratify, but just go right in. My understanding is that 21 have signed the convention. Of those, I believe one has also ratified. The three other countries that have not signed have acceded — taken a one- step process — and it is applicable to them. That is a small number but one of those is the EU, speaking for all its member states, so that is actually big even though it only counts for one in this context.
Then you have an added complication, which is like most multilateral treaties: There is a certain threshold before the treaty enters into force.
Twenty-five countries have to ratify or accede before it enters into force. You have four right now and an initial 20 countries who have indicated in a strong, formal way by signature that they intend to ratify. Then you have the rest of the members of the FAO involved in negotiations who have not done any formal process. I think you are talking about 90 countries that obviously approved the final text and therefore are at least saying that there is nothing in the text, as a text, that they object to. That leads to a conclusion that it will not enter into force next month.
I would be hopeful that within a year or two, given the fact that you have 20 countries that have signed thus indicating their desire to ratify, it will be in force. However, I cannot obviously predict when. Canada is a good example of a country going through a process — should Parliament so decide to make sure we can fulfill our obligations — to ratify and therefore the list will have one more. I know a number of countries on the list of signatories are going through processes, including the United States, so we can be hopeful that in a year or two perhaps it will enter into force. Once it enters into force, it has a treaty obligation for members to encourage non-members to ratify — it is a bit innovative — and encourage people to join the club. We will be encouraging other countries to ratify, and we can be hopeful that the numbers will increase and be high.
Senator Hubley: Which country has ratified to date?
Mr. Morrill: We have the EU; we have Myanmar, Norway and Sri Lanka.
Senator Hubley: Have they ratified or acceded?
Mr. Morrill: Norway has signed and ratified and I believe the EU has simply acceded. I will confirm that.
Senator Raine: Thank you very much for being here. Will this actually be a strong tool against IUU? How do the signatory countries enforce it? How does that all work?
Mr. Morrill: It is a very good question. We should not be doing this for the newsletter and the tie clip.
Port state measures, generally, have been identified as one of the most efficient and also cost-effective ways of responding to IUU fishing. That is important because, as the previous witness said, one of our goals ideally is to get many of the developing countries on side. Cost is important to us, but especially important to them.
It is important to note that prior to this treaty, the FAO and in fact other countries have worked to encourage countries to take port state measures, so that in 2001 you had an action plan for combatting IUU fishing, in which port state measures were identified as a key tool.
One of the issues — and I think it is useful to raise this — is to step back and say that for the countries that have invested in having a strong conservation system — like Canada and like many developed countries; not all developed countries but many like-minded countries — that investment is a cost. It is a cost that we have willingly undertaken because it is an important issue, but it is definitely a cost. It has to be factored into ultimately the price of the fish, as the previous witness would say.
Ideally, if Canada is taking those measures and willingly paying that cost, it is important that internationally there be a level playing field. What we want to encourage other countries to do is to take similar measures. The goal of the Port State Measures Agreement is not simply to tell countries you should do this, although that is certainly an important part of it, but it also creates an information-sharing system. It creates a system whereby information is shared with the FAO, with regional fisheries management organizations, or RMFOs. It is a structure that strengthens the effect of the conservation measures and the rules of the RFMOs, because what you are looking at in terms of IUU fishing is fishing either contrary to the laws of a coastal state or contrary to the rules of the RFMO.
A quick answer is that I think it will be a helpful and useful convention. As the discussion has shown here, Canada, frankly, is not a country that is having fleets of IUU fishers coming and scooping up all our fish. That is, unfortunately, apparently something that is happening in other places.
One of the key issues is that if Canada is to maintain a high level of protection and accept the cost that that involves, it is important for us that other countries acknowledge the need for them to take on that cost.
Then we have to think of ways in which we can help ensure that the system is as efficient as possible. I think a key part of that system is the information-sharing system, the fact that every country that signs this treaty will be working as part of a system to identify specific vessels and specific actors. A blacklist is, I think, a slightly unsophisticated way of describing it, but basically this will result in the creation of an information base that countries that wish to combat IUU fishing will be able to use.
Senator Raine: I have heard of the factory fishing vessels out there that have their fleet fishing and they are processing it. I gather they are going directly from that processing ship to their markets. That is the chain of command issue, or chain of custody issue. Will this legislation affect that? Is this, in a sense, the United Nations and the signatory port states taking control of the high seas and fishing on the high seas? Are people not allowed to fish on the high seas?
Mr. Morrill: It is a good question. Part of the challenge since the UN Convention on the Law of the Sea has been the tension between two issues. One is an obligation to conserve the fish, and the machinery in the system to deliver that conservation. Within the EEZ, the exclusive economic zone, you know what the machinery is. The coastal state has the capacity to regulate. There are big challenges there. There are many countries — Ghana was mentioned — where, with the best will in the world, they do not have the capacity to properly regulate their EEZ. They have a real challenge there, and there are systems in place to try to help them.
However, on the high seas, the main machinery that has been developed has been regional fisheries management organizations. These organizations have been quite effective. You can imagine a world where they would not have been effective at all. They have not been completely effective by any means. This is not perfect machinery. However, the regional fishery management organizations have provided a structure for, I was going to say, peace, order and good government on the high seas, but the good governance of the high seas. It is not a perfect structure, but it does mean that a lot of the major players, major fishing states, have an interest in being involved in those structures.
People are allowed to fish on the high seas; however, given the regional fisheries management organizations, the Fish Stocks Agreement and the general interests of at least forward-thinking fishing states, there is actually an interest in strengthening the system for legitimate fishers in order to make life more difficult for, if you like, illegitimate fishers.
I think that is an interest that does exist. Because of that, countries that have the right to fish on the high seas are willing to see that right regulated by signing on to RMFOs or becoming cooperating non-member states, I believe is the phrase. It is not a perfect system, and some countries are less cooperative. However, the system, I think, is working better today than it was 10 or 15 years ago. Things like the Port State Measures Agreement are an additional step to try to make that work better.
The international system, I think, has to offer ways for the legitimate fishers to have some confidence that their investment in conservation and their willingness to pay the cost will not simply be undercut by illegitimate fishers, IUU fishers. No instrument that comes out of the UN will be a perfect instrument, quite frankly. It will be the subject of a lot of negotiation and a lot of compromise. However, I think it is a step forward.
Senator Unger: Thank you, Mr. Morrill.
Just a supplementary question: Are the costs to sign on to the treaty prohibitive for some countries that would maybe want to? I have no idea what the cost of being a member of this club would be.
Mr. Morrill: As I said, a lot of the things the bill is doing are bits and pieces of the treaty. The core of the treaty is actually something that Canada, to give you an example, can already do, which is to have a system in place to identify shipping vessels, and vessels that might be involved in transshipment, to ensure that they can either be refused entry into a port or be inspected when they reach a port. That is a core function of the treaty. Then it creates an information- sharing structure to, in effect, create this database or this blacklist; I think that has been the term used.
I think that any country that has reasonable control of its ports can do that. If a country has an effective fisheries protection system, then I do not think it is a large cost to do this in addition. If you are talking about developing countries, very poor countries, then there is a challenge. That is undoubtedly true. The treaty actually talks about the various forms of technical assistance that will be made on a voluntary basis. There is no obligation to provide assistance, but there is strong encouragement to provide assistance to countries that perhaps need technical assistance for things like setting up proper control of ports or setting up fisheries systems.
I do not think it is prohibitive, but in any global multilateral instrument you do have to accept the fact that you are dealing with countries that have the means to put proper governance structures in place; and then you are dealing with countries that may have the best will in the world but might need a little assistance in arriving at those means. At the end of the day, a country that ratifies this treaty, even if it is a country without much in the way of means, must be satisfied that it can fulfill the obligations, which are to control their ports, to inspect, to have the capacity to refuse and to be able to share the information.
Senator Unger: I have one more question. You mentioned a database or blacklists. Who compiles those?
Mr. Morrill: It is not as centralized as a database or a blacklist. First, the treaty suggests that those are shared. I shall find the section of the treaty and read it out to you. It is clear, again, that that section is a bit of a compromise. Essentially it is the RFMOs of which the country is a member — the flag state. Article 15 of the treaty states:
Each Party shall transmit the results of each inspection to the flag State of the inspected vessel and, as appropriate, to:
A country can refuse if it is having a horrible dispute with another country or something.
(a) relevant Parties and States, including:
(i) those States for which there is evidence through inspection that the vessel has engaged in IUU fishing . . . .
If the vessel comes into the port of one country and they see from the fish, or from something else or the records, that it was in Argentine waters then it might be appropriate to tell Argentina that.
(ii) the State of which the vessel's master is a national;
Again, you are identifying the person.
(b) relevant regional fisheries management organizations; and
(c) FAO and other relevant international organizations.
Other relevant international organizations might be, for example, the IMO or might be a regional body as well. It is not database or blacklist, which sounds like it is one thing. It is actually an attempt to identify the various parties that would be interested and then essentially saying you should share this information with them in order to combat this.
Senator Poirier: Can you explain the difference between how authorities would proceed right now if they are dealing with a foreign vessel that has illegally fished and how they will proceed once this legislation is in force?
Mr. Morrill: One point I tried to make is that for the most part most of the things we can do now would satisfy most of this treaty, but there are a few things that we would do differently. One thing is that the treaty contemplates a lot of cooperation between the states. One thing it contemplates is that a flag state might actually order one of its vessels in to be inspected if it is a flag state to another country. A flag state of a Spanish vessel might be ordered to come into a Canadian port to be inspected because its own flag state suspected it of IUU fishing and the nearest port was a Canadian port.
Perhaps I should step back a bit. We talk about ports being opened and closed. Any country can decide that it will not let foreign vessels into its ports. That is permitted and that is a basic issue of sovereignty. Most of Canada's ports are open in the sense that there is no rule about most vessels as to whether or not they need permission to come into a Canadian port. They are open generally, but under the Coastal Fisheries Protection Act they are in effect closed for fishing vessels, so fishing vessels need permission to come into any Canadian port. That is the structure that exists now, and that actually is the key thing that already satisfies most of this structure.
The mechanism in the legislation says that a master of every vessel has to ask permission. One of the situations that have actually arisen in recent years in cooperation of the FAO plan of action, as I understand it, was that a flag state ordered its vessels to be inspected in Canada because they were under suspicion. The captain said that you could order him in but you could not order him to apply for a permit. The minister actually did not have authority to permit him to come into the port unless he applied for a permit.
One of the things — and, again, this tidying up is a good phrase — is that this is changing things so that, in addition to it requiring a permit, when a state orders its vessel to come into Canada to be inspected on suspicion of IUU fishing the minister can permit it even if no permit has been issued. That is one thing.
There are provisions in the convention relating to the potential seizure of IUU fish. The present legislative structure is such that the only fish that can be seized is fish on vessels. Again there have been situations where vessels have come in, unloaded half their catch, legally, and the Minister of Fisheries and Oceans can only seize the fish that is on the vessel in that circumstance. The legislation will permit him to seize it all even if it has been off-loaded.
There are provisions relating to criminalizing the knowing import of IUU fish. That basically creates an additional penalty that allows us to fully enforce the provisions of the agreement.
While arguably the department already has the capacity to share information, you are senators and you will know that the discussion of sharing of information internationally is one that is fairly fraught and the courts are quite interested in the issue; therefore, it is thought to be very appropriate that the legislation actually make clear that there is authority to share this information in the way the treaty requires.
The obvious one, which is the definition of fish in the agreement, includes processed fish and parts of fish and, oddly enough, plants. Lawyers define plants as fish and there you go, it is so. The definition of fish in the act is being expanded in order to ensure that it covers everything that the agreement covers.
Does that help?
Senator Poirier: Yes. In your opinion, what kind of time frame are we looking at for the international ratification?
Mr. Morrill: I would be hopeful that in two years it would be in force. Should Parliament decide to proceed with this, Canada hopefully will be able to ratify quickly. That will be in the hands of members of Parliament. I would be hopeful within the next two years. I cannot predict absolutely but I think I described the framework.
Senator Poirier: Since we share a coastline with the United States, do you have an idea what the status is of their legislation regarding the Port State Measures Agreement?
Mr. Morrill: I know it is before Congress, and I know they are proceeding with it. I cannot tell whether it will be passed tomorrow or next year because it seems to me that the U.S. system is getting a bit unpredictable these days. I know that it is proceeding.
Senator Wells: Thank you very much for your comments so far. They have been enlightening.
Why would there be countries, in your experience, that would not sign on to this?
Mr. Morrill: There will be landlocked countries.
Senator Wells: Would there be disinterested countries?
Mr. Morrill: There might be some countries that are disinterested or regard themselves as having very little interest in the way of fisheries issues. Many of those countries would probably be not making the best analysis.
There will be poor countries and developing countries. In many developing countries, it is not just an issue of financial or substantive resources; it is also an issue of governance resources. You have legislatures that are under a lot of pressure to do a lot of things. You have insufficient support for them. They set their priorities and perhaps this would not be a high priority.
Senator Wells: What about countries that would be supplying their internal demands so they do not need to look for safe haven ports for distribution in other countries? If they are supplying their internal demand, they go out and illegally fish or fish in an unregulated manner and then come back to their own ports. Would that also be a factor? I am thinking about China.
Mr. Morrill: It might be, but I have to say that countries that are active especially in high seas fisheries actually have a large investment. We are not talking about small fishers. A country that has made a large investment to satisfy its own needs may well also have, quite frankly, an interest in being in the market, depending on how much they catch and what their demands are.
Certainly, I would not say it is impossible but I would say that countries that have a large investment in fisheries for the most part have an interest in a functioning and sustainable fishery system. There may be within countries actors who have very short-term views, but within the same country there might be actors who have a longer-term view of what the interests of a country are.
Senator Wells: What tools do responsible countries — countries that have already signed on, who are part of responsible RFMOs — have at their disposal to encourage the ones who are reluctant to sign? What tools do we have at our disposal to have them sign or to comply? Whether they sign or not is probably less than the fact that they have to comply.
Mr. Morrill: It is the enforcement mechanisms we are talking about here. Perhaps it is not as much of an issue for Canada, but to the extent that essentially there is a good chance of getting caught, of not being able to land your fish, of having your catch seized, the cost of being an IUU fisher goes up. If you can increase that, there is less of an incentive for fishers from those countries or fishers that are involved in IUU fishing to do so.
To the extent that international pressure is brought on countries within multilateral organizations, that is not perhaps a big stick but it is a real stick. Countries do notice what the international community says about them. To the extent that industry is pushing for it, and you have heard that industry supports it, is important. Finally, to the extent that there are sanctions such as the seizure of catches, black lists, possibly market mechanisms, which are identified here as knowingly important, all of these are useful.
Senator Wells: Canada since 2006, I know, has been very aggressive in establishing trade agreements with many countries around the world and many country groupings as well. Has there been any tying of a condition like the IUU issue in the negotiations on those trade agreements? It would seem if we are a leader in combatting IUU fishing, and we have a fairly aggressive and extensive list of countries we would like to have trade agreements with, that it could be tied. Has there been any discussion about that?
Mr. Morrill: There has been. Virtually all those multilateral agreements will have either an environmental chapter or an environmental side agreement. In those environmental chapters and side agreements there will be either general provisions relating to conservation measures or there are on occasion issues relating specifically to fisheries. In those agreements, it is on quite a high level and tends to talk about the extent to which the countries have adequate conservation and environmental measures. You will not necessarily find wording about IUU fishing in such agreements, but you will find countries actually caring quite a bit, if the free trade agreement covers fish or other product, whether they can have some confidence that those products will not in fact be of an inappropriate origin.
The Chair: Thank you, Mr. Morrill, for your presentation this evening. Certainly, it clarifies some of the issues for the senators here. Thank you for your time. Once again, I apologize for our lateness this evening and thank you for your patience.
Mr. Morrill: I am happy to be here.
(The committee continued in camera.)